Kuksal v Lumi Finance Pty Ltd

1. [1]

   HER HONOUR: This judgment concerns the dismissal of an appeal.

2. [2]

   By notice of motion filed on 26 May 2021, the defendant seeks an order that the appeal purportedly commenced by the summons filed 9 April 2021 be dismissed as incompetent on the basis that leave to appeal was not sought and there was no accompanying application for an extension of time to file the summons.

3. [3]

   The plaintiff is Shivesh Kuksal (“Mr Kuksal”). The defendant is Lumi Finance Pty Ltd (“Lumi”). The defendant relied on a court book.

4. [4]

   There were some unusual features in these proceedings. On 27 August 2021, the parties appeared before me in this Court. Mr Kuksal was represented by Mr McGregor, and Lumi was represented by Mr Braithwaite of counsel. On that date I granted a three week adjournment to 22 September 2021 on the basis of exceptional circumstances. The parties were to provide written submissions by 17 September 2021. I made it clear that no further adjournments would be granted.

5. [5]

   On 22 September 2021, Mr Kuksal informed the Court he was no longer represented by Mr McGregor, however Mr McGregor did not, as he is required to do, seek leave to withdraw. At the commencement of the hearing Mr Kuksal indicated that he would be seeking an adjournment, and informed the Court that he had sent a further affidavit to my associate that morning, along with some 200 plus pages of documents upon which he intended to rely. Mr Kuksal said:

6. [6]

   The proceedings had to be adjourned so the documents could be printed which took some time. The documents had not been collated and the pages were not consecutively numbered which caused a great deal of inconvenience during the proceedings.

7. [7]

   When the matter was called back on, at approximately 11:15am, Mr Kuksal indicated that during the brief adjournment he had sent close to 20 authorities upon which he intended to rely. He said:

8. [8]

   Mr Kuksal had an entrenched view that he was entitled to run his case as he saw fit. Throughout the proceedings I had to ask him many times to not talk when other people were speaking, or to slow down as in these circumstances the court reporter would not be able to take down an accurate transcript. See: T10.47-50; T24.8-9; and T51.29-36. Mr Kuksal took no notice of my explanations as to how to run his case so as to reduce the amount of time required to make his submissions, and to ensure the most salient issues were addressed. See: T36.7-28; T54.32; T57.4-7; T57.27-30. At one point Mr Kuksal demanded that I ask Mr Braithwaite questions which he wanted answered. See: T7.7-11

9. [9]

   I read all of Mr Kuksal’s documentation even though it was not in proper form. While apparently Mr Kuksal had some legal training, I found his submissions at times, disjointed and difficult to understand.

Appeal

1. [10]

   By summons filed 9 April 2021 (“the summons”), Mr Kuksal seeks to appeal the Local Court decision in proceedings numbered 2019/358522 to dismiss his motion to set aside a default judgment entered against him on 13 March 2020. Mr Kuksal also seeks that the application to set aside the default judgment be reopened, and that Lumi cover his costs.

Grounds

1. [11]

   The appeal grounds argued by Mr Kuksal are that:

   1. (1)

      he was denied procedural fairness and natural justice;

   2. (2)

      the Magistrate failed to follow the law with respect to the determination of proper service in the original matter leading to the default judgment;

   3. (3)

      the Magistrate failed to follow the law with respect to the determination of whether a NSW Local Court was the appropriate venue for the original matter leading to the default judgment.

Background

1. [12]

   On 14 November 2019, in the Local Court Lumi commenced proceedings by statement of claim seeking judgment against Efektiv Pty Ltd (“Efektiv”) in relation to non-payment under a loan agreement, and judgment against several defendants including Mr Kuksal, under a related guarantee agreement.

2. [13]

   On 13 March 2020, default judgment was entered against Mr Kuksal, due to his failure to make any appearance or file any defence in the proceedings (“the default judgment”). The terms of the default judgment were that Mr Kuksal pay Lumi the sum of $65,099.71 inclusive of costs.

3. [14]

   On 18 June 2020, Mr Kuksal filed a notice of motion seeking orders that, inter alia, the default judgment be set aside (“the motion”).

4. [15]

   After having been adjourned part-heard on 10 August 2020 and 2 November 2020, the motion was ultimately dismissed by Magistrate Atkinson in the Local Court on 10 March 2021 (“the Local Court decision”). On 10 March 2021, Mr Kuksal did not appear at the hearing. Mr Braithwaite appeared for the plaintiff/respondent. Mr Kuksal forwarded a medical certificate to the magistrate, and sought that the proceedings be adjourned. Mr Braithwaite had not seen the medical certificate.

5. [16]

   The Local Court exercised its discretion to dismiss the motion pursuant to Part 6 of the Civil Procedure Act 2005 (NSW), in circumstances where Mr Kuksal had failed to comply with a direction to appear in person. The court in exercising their discretion, considered the material Mr Kuksal provided by email on 10 March 2021 explaining his reasons for non-appearance.

6. [17]

   The transcript of the Local Court proceedings on 10 March 2021 relevantly reads at page 9 line 16, to page 10 line 2:

7. [18]

   On the same day, solicitors for Lumi, LegalVision ILP Pty Ltd (“LegalVision”), advised Mr Kuksal that his notice of motion had been dismissed. On 12 March 2021, Mr Kuksal indicated his intention to appeal the Local Court decision.

8. [19]

   On 16 March 2021, Mr Kuksal was sent a copy of the orders made by the Local Court. On 18 March 2021, Mr Kuksal confirmed his intention to again appeal the decision.

9. [20]

   The Local Court ordered the issue of costs to be determined on 6 April 2021 and directed that each party file and serve written submissions by 31 March 2021. The matter was not determined on 6 April 2021 and was adjourned three times: on 6 April, 31 May and 1 July 2021. On the last occasion the magistrate determined that Lumi’s application for costs will not be considered until the present appeal has been determined.

10. [21]

    On 9 April 2021, Mr Kuksal filed the summons seeking to appeal the Local Court decision in this Court. The summons was served on 12 April 2021.

11. [22]

    On 16 April 2021, LegalVision advised Mr Kuksal by letter that the summons was filed out of time, failed to seek leave and did not comply with the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). LegalVision set out the deficiencies, and referenced the relevant legislation. LegalVision invited Mr Kuksal to file and serve an amended summons, failing which Lumi would apply for orders dismissing the summons pursuant to UCPR 50.16A. On the same day, Mr Kuksal acknowledged the delay in filing the summons and explained that it was due to "technical issues with the Court's filing system".

12. [23]

    On 19 April 2021, LegalVision acknowledged that Mr Kuksal may have a valid reason for filing the summons late but explained that his email did not address the deficiencies set out in their letter of 16 April 2021. On the same day Mr Kuksal responded by asserting that he did not believe the orders were interlocutory.

13. [24]

    On 21 April 2021, the parties appeared before the Registrar for directions. The Registrar ordered that Mr Kuksal file and serve an amended summons by 14 May 2021. In the event Mr Kuksal failed to comply with that order, Lumi was to file and serve any notice of motion to dismiss or strike out the claim by 26 May 2021. On the same day LegalVision sent a letter to Mr Kuksal purporting to attach material supporting the conclusion that the decision was interlocutory, however the material was omitted. It was later provided to Mr Kuksal on 26 April 2021.

14. [25]

    By 25 May 2021, Mr Kuksal had not filed an amended summons. Given that Lumi was required to file any motion to dismiss the summons by 26 May 2021, LegalVision sought confirmation of Mr Kuksal's position by email, noting Lumi's intention to file its motion in accordance with the Court's orders. The parties exchanged further correspondence in the course of which Mr Kuksal indicated he would file an amended summons on 26 May 2021.

15. [26]

    On 26 May 2021, Mr Kuksal advised he would provide Lumi with an amended summons early the following day. On the same day Lumi filed the present notice of motion seeking an order that the appeal purportedly commenced by the summons be dismissed as incompetent. A copy of the motion was served on 27 May 2021.

16. [27]

    On 31 May 2021, the parties appeared before the magistrate in relation to costs. During that hearing, Mr Kuksal stated that the material provided to him by Lumi did not convince him the matter was interlocutory and that his "original application is accurate" and "is not an incompetent application by any measure" (T10.23-11.6).

The applicable law

1. [28]

   Depending on the circumstances of the judgment or order to be appealed, an appeal from the Local Court to the Supreme Court may proceed as of right, or may require leave. The Local Court Act 2007 (NSW) relevantly reads:

2. [29]

   Where an appeal requires leave, UCPR 50.12 applies. It relevantly reads:

3. [30]

   The summons filed on 9 April 2021 by Mr Kuksal does not include any application for leave, nor any statement of the reasons why leave should be granted.

4. [31]

   The magistrate in the Local Court dismissed Mr Kuksal’s notice of motion to set aside the default judgment entered against him pursuant to Part 6 of the Civil Procedure Act. That Part relevantly reads:

Is leave to appeal required?

1. [32]

   The question of whether leave is required turns on whether the judgment is interlocutory as set out in s 40(2) of the Local Court Act.

2. [33]

   Both parties referred to Carr & Anor v Finance Corporation of Australia Limited (No 1) (1981) 147 CLR 246 (“Carr”). Carr relevantly reads at 248:

3. [34]

   Mr Kuksal provided only one paragraph of written submissions on the issue of whether the Local Court decision was interlocutory, however he did make further oral submissions on that topic.

4. [35]

   The relevant paragraph in his submissions states:

5. [36]

   In oral submissions Mr Kuksal submitted that the defendant’s submission that Carr decisively stands for the principle that a decision to set aside a notice of motion to set aside a default judgment is an interlocutory order is erroneous (T34.31-35).

6. [37]

   Mr Kuksal explained that in deciding Carr the High Court relied on a quote from Hall v Nominal Defendant (1966) 117 CLR 423 (“Hall”) which was devoid of its particular context as in Carr the Court addressed only the simplest form of dismissal of interlocutory orders, being a summary dismissal in circumstances where a party has not presented their case. Mr Kuksal submitted that when a matter is summarily dismissed following the full presentation of a party’s case, the judgment will not be interlocutory (T38.37-44).

7. [38]

   In support of his submission Mr Kuksal read from Taylor J’s judgment in Hall at 441 from which the above extract in Carr was taken:

8. [39]

   Mr Kuksal submitted that instead of looking at reductive tests that are derivations of complex considerations, the best manner in which to determine whether a judgment or order is interlocutory is to look at first principles (T38.49-39.5).

9. [40]

   Mr Kuksal then continued to quote from Hall, however this time from the judgment of Barwick C.J at 429:

10. [41]

    Mr Kuksal submitted that in Hall it was deemed inappropriate for the judge to consider the matter again because a determination had been made about the credit or the feasibility of the particular application, and therefore the Court ruled that it should be treated as a final order, not an interlocutory order (T39.27-33). Mr Kuksal described it as an absurdity if a person that were allowed to return to a Court and either ask the judge to overrule themselves, or ask another judge to overrule the first, as specific determinations have already been made in that particular case. He concluded that dismissal of applications to set aside summary dismissals or default judgment orders are interlocutory only where the applicant hasn't submitted their evidence for the consideration of the judge (T39.11-18).

11. [42]

    Mr Kuksal’s final submission on this issue was that Mason CJ’s judgment in Autodesk Inc and Another v Dyason and others (1993) 176 CLR 300 (“Autodesk”) reiterates the above points (T39.18-19). Mr Kuksal read from that judgment at [3] to [4]:

12. [43]

    Mr Kuksal submitted that pursuant to Autodesk, and Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, the predominant purpose of an appellant court is to serve the interests of justice, and the management or the administration of affairs is a secondary consideration to the ultimate goal of achieving natural justice (T39.50-40.5).

13. [44]

    Lumi submitted that a judgment or order dismissing a motion to set aside a default judgment is an interlocutory judgment or order as it does not, as a matter of law, finally dispose of the rights of the parties: Carr; Nand v Fuji Xerox Australia Pty Ltd [2014] NSWCA 294 at [4]: J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd trading as Greenwood Group Realtors [2019] NSWCA 283 at [4]: Lauro v Minter Ellison [2020] SASC 137 at [4], [8]-[19].

14. [45]

    Lumi submitted that this is so even if the application was dismissed on the merits or some other basis and whether or not any subsequent application is doomed to fail for some reason.

15. [46]

    In oral submissions counsel for Lumi referred to the decision of the South Australian Supreme Court in Lauro v Minter Ellison [2020] SASC 137 (“Lauro”). Counsel submitted that in Lauro the Court traces High Court authority on this issue, including Hall at [10], Carr at [12], and further authorities at [13]. However counsel emphasised the passage at [15] and [16] which reads:

16. [47]

    In oral submissions counsel for Lumi, referring to the comments of Gibbs CJ in Carr, expanded on the reason for determining whether a matter is interlocutory simply by its legal effect, submitting that the rigour of the rule is mitigated by the Court’s power to grant special leave: if a court decides a judgment is interlocutory, it does not preclude any appeal, but rather simply requires that leave is required first (T19.29-36). Counsel suggested that for this reason as a matter of policy the High Court reasoned to determine whether a decision is interlocutory on its face rather than by engaging in some inquiry into the procedural history or the particular circumstances or whether a subsequent application might be estopped (T20.3-10).

17. [48]

    Responding to Mr Kuksal’s submission that Hall and Carr are inconsistent, in oral submissions counsel for Lumi submitted that Hall is not a case about an order dismissing an application to set aside a default judgment, and that the majority did not hold that the relevant order was final, but rather they held it was interlocutory and Barwick CJ dissented. Counsel for Lumi also pointed out that at p 429, Barwick CJ expressly distinguishes Hall from a case involving a default judgment acknowledging the two were quite different (T62.40-50).

18. [49]

    Responding to Mr Kuksal’s written submission that a reapplication to the Local Court to set aside the Default Judgment would be resisted on grounds of issue estoppel, counsel noted “it's not clear what issue estoppel could arise in the present case, given there was no hearing on the merits.” (T62.28-30)

19. [50]

    Lumi further submitted that pursuant to s 40(2)(a) of the Local Court Act, a party may appeal an interlocutory judgment or order only by leave of the Supreme Court. That is so even if the appeal relates to a question of law: Ciszekv Enterprise Financial Solutions Pty Limited [2010] NSWSC 1265 at [10]. Accordingly any appeal from the Local Court decision in the present case could only be validly made with leave of the Supreme Court. As the summons does not seek leave, and does not contain a statement of the nature of the case and give reasons why leave should be given, as is required by UCPR 50.12(4), it is incompetent: Carr & Anor v Finance Corporation of Australia Limited (No 1) (1981) 147 CLR 246 at 248. 257-8: Council of the Municipality of Woollahra v Sved & Anor [1998] NSWCA 63; McGinn v Cranbrook School [2016] NSWCA 226; Coshott v Commonwealth Bank of Australia [2020] NSWCA 279 at [44].

20. [51]

    Finally, in oral submissions counsel for Lumi noted that the decision of the Local Court was determined by reason of the Court exercising its powers of practice and procedure and Part 6 Civil Procedure Act. Accordingly, Mr Kuksal’s submission that when a matter is summarily dismissed following the full presentation of a party’s case the judgment will not be interlocutory is irrelevant (T22.15-23). This is because, the purpose of an application for summary dismissal is to avoid having a full presentation of a party’s case.

Resolution

1. [52]

   In the words of Gibbs CJ in Carr at 248, “The question whether a judgment is final or interlocutory for the purpose of the rules relating to appeals is one productive of much difficulty.”

2. [53]

   The argument advanced by Mr Kuksal is an unusual one. It proceeds from a contention that in deciding Carr the High Court misinterpreted the judgment in Hall, and suggests that Mason J’s judgment in Autodesk, as well as the High Court decision in Re Golding [2020] HCA 38 (“Re Golding”) (though he did not refer to Re Golding at all in hearing) supports this conclusion. He also asserted that the decision in Carr is erroneous. Mr Kuksal’s submissions invite this Court to have regard to the practical rather than the legal effect of the decision of the Local Court and decide whether it was interlocutory on that basis.

3. [54]

   In Carr at 248 the High Court stated in no uncertain terms:

4. [55]

   There is no doubt that Carr is binding High Court authority for the proposition that an order refusing to set aside a default judgment is an interlocutory decision. The test to be applied for determining whether a judgment is final or not is whether it finally determines the rights of the parties, and such an order does not as a matter of law finally dispose of the rights of the parties, as the disappointed defendant is able to apply again to have the judgment set aside.

5. [56]

   Regarding the purported inconsistency between Hall and Carr, I do not agree with Mr Kuksal’s submission that there is one. As was pointed out by counsel for Lumi in oral submissions, Barwick CJ was dissenting in that case and in any event His Honour expressly distinguishes Hall from a case involving a default judgment. Hall relevantly reads at p 429:

6. [57]

   It should be noted that the decision as to whether a judgment is interlocutory or final is one that is not of severe consequence. If a judgment or order is deemed interlocutory due to its legal effect and in spite of its practical effect, the only consequence is that leave is required to appeal. As such, to paraphrase the words of Gibbs CJ in Carr at 248, the rigour of the application of this rule is mitigated by this Court’s power to grant leave. Accordingly, in my view there are strong policy reasons for not embarking on a detailed enquiry which brings “yet a further complication to the complexities which already bedevil the existence of appeals as of right to this Court.” See: Mason J in Carr at 256.

7. [58]

   There is also the issue that deciding otherwise than in accordance with Carr would limit the discretion of this Court. Relevantly Mason J in Carr at 256 states:

8. [59]

   In any event, the Local Court Decision was made by reason of the Court exercising its powers of practice and procedure. The matter was dismissed following Mr Kuksal's failure to appear at the hearing and to comply with the Court's directions. It is therefore, in my opinion, not a matter in which, even if one was to look to the decision’s practical effect to determine whether it was interlocutory, it would be relevantly considered “final”.

9. [60]

   The question of whether the High Court has erred is not for this Court to decide, that is a matter for the High Court itself. There is no reason for further complicating the process of appeal by having regard to the practical effect of the decision of the Local Court, or for limiting the discretion of this Court. I would echo the words of Gibbs CJ in Carr that to do otherwise would be ‘quite inappropriate’ when the only question to be decided is whether leave is required.

10. [61]

    Mr Kuksal’s summons requires leave in accordance with s 40(2)(a) of the Local Court Act, and having not complied with the requirements of UCPR 50.12(4), Mr Kuksal’s appeal is incompetent: Carr at 248 and 258.

Extension of time to file the summons

1. [62]

   As Mr Kuksal’s summons is one which requires leave pursuant to s 40(2)(a) of the Local Court Act, pursuant to UCPR 50.12(1)(a) it must be filed “within 28 days after the material date”, or pursuant to UCPR 50.12(1)(c), “within such further time as the higher court may allow.”

2. [63]

   The 'material date' is the date on which the decision was pronounced or given, and pursuant to UCPR 50.2(1), a 'decision' includes a judgment, order, opinion, direction, or determination.

3. [64]

   The summons records the hearing date as 10 March 2021 and the material date as 15 March 2021. 15 March 2021 is merely the date on which a copy of the orders was given to the parties. As the judgment was given on 10 March 2021, that is the material date: See Rosso & Anor v Acebond Pty Limited [2012] NSWSC 300 at [22]-[25].

4. [65]

   The summons was required to be filed by 7 April 2021, however it was filed two days late on 9 April 2021. Therefore, pursuant to UCPR 50.12(2) an application for extension of time should have formed part of Mr Kuksal’s summons, and pursuant to UCPR 50.12(4)(c) the summons should have also contained a statement of the reasons why time to apply for leave should be extended. It is unsurprising that the summons contains neither of these as Mr Kuksal believed at the time of filing that leave was not required.

5. [66]

   On 22 September 2021, Mr Kuksal provided this Court with an affidavit affirmed on the same day (“Kuksal Aff 22 September 21”) which explained the reasons for the delay.

6. [67]

   Mr Kuksal submitted that following the Local Court’s dismissal of his notice of motion to set aside the default judgment in proceedings 2019/358522, on 7 April 2021 he attempted to file his application to appeal with the Supreme Court, however due to technical issues with the electronic lodgement system used by the Court Registry he was unable to: Kuksal Aff 22 September 21 at [4].

7. [68]

   Mr Kuksal submitted that he called the Registry the following day and was advised that they were aware of the disruption, and asked him to confirm by email that the disruption had affected the filing of his summons which he did: Kuksal Aff 22 September 21 at [5].

8. [69]

   A copy of the email correspondence between Mr Kuksal and the Registry is exhibited to Kuksal Aff 22 September 21 as Exhibit SK-220921. The emails between Mr Kuksal and the Registry refer to his earlier phone call, evidence the filing disruption and substantiate his submissions.

Resolution

1. [70]

   It is incontrovertible that the summons does not comply with the requirements in UCPR 50.12, as it contains no application for an extension of time or statement of reasons explaining the delay in filing.

2. [71]

   Mr Kuksal’s delay in filing the summons is short as it was filed a mere two days late. The email correspondence exhibited in SK-220921 evidences that this delay was a matter outside Mr Kuksal’s control, and that despite his attempts to file the summons on time a disruption with the online filing system prevented him from doing so. I accept his explanation so far as delay is concerned.

3. [72]

   Despite the above, having been filed out of time and having not complied with the requirements of UCPR 50.12, that is including in the summons an application for an extension of time and a statement of reasons for delay, it is incompetent: See Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 at [36], [54] and [129].

Should leave be granted?

1. [73]

   It is uncontentious that Mr Kuksal requires leave to appeal. There is no appeal as of right against the interlocutory orders of the Local Court. Leave will only be granted where there are substantial reasons to allow appellate review: Australian Securities and Investments Commission v Schlaepfer [2017] NSWCA 247 at [40]. The party seeking leave will usually be required to demonstrate that there is an issue of principle, question of public importance or reasonably clear injustice going beyond something that is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [33].

2. [74]

   Despite this hearing only concerning the narrow issue of the competency of Mr Kuksal’s appeal, and although Mr Kuksal’s summons is incompetent both by reason of his failure to make an application for an extension of time, and by reason of his failure to seek leave, I will nevertheless briefly consider the question of whether leave should be granted as Mr Kuksal spent quite some time addressing his appeal grounds.

3. [75]

   Counsel for the defendant made no submissions as to Mr Kuksal’s appeal grounds taking the view that as they were not relevant to the present motion he did not need to.

4. [76]

   Mr Kuksal submits three grounds for appeal which are repeated earlier in this judgment. Although the summons itself did not address his appeal grounds, Mr Kuksal’s written submissions did, as did his affidavit of 16 June 2020 (“Kuksal Aff 16 June 20”) upon which he relied, and which formed part of Exhibit SK-210901 to his affidavit of 21 September 2021 (“Kuksal Aff 21 September 21”) which he also relied upon.

5. [77]

   Mr Kuksal did not address each of his appeal grounds discretely but rather provided submissions which represented the totality of what he believed gave him grounds to appeal. Though the grounds are intertwined, I have attempted to separate them as best I could.

Was the NSW Local Court an appropriate venue for the original matter?

1. [78]

   Mr Kuksal’s third ground of appeal is:

2. [79]

   Mr Kuksal did not make submissions on this issue. I can only presume that his assertion that the Magistrate failed the follow the law proceeds from the facts that the parties are located in Victoria and the loan agreement and associated guarantee were presumably signed in Victoria.

3. [80]

   Both the loan agreement and the associated guarantee form part of Exhibit SK-210901, however Exhibit SK-210901 contains no page numbers so their precise location within that exhibit is unfortunately indeterminate.

4. [81]

   The loan agreement relevantly reads at cl 19:

5. [82]

   The guarantee relevantly reads at cl 9:

6. [83]

   Therefore the New South Wales Local Court is indisputably an appropriate venue to hear the original matter.

Was Mr Kuksal denied procedural fairness?

1. [84]

   Mr Kuksal’s first ground of appeal is that he was denied procedural fairness and natural justice.

2. [85]

   Mr Kuksal’s submissions on this ground of appeal relate to an allegation that a hypothetical fair minded observer who has knowledge of the circumstances would have apprehended bias in the Magistrates conduct in the proceedings.

3. [86]

   In written submissions Mr Kuksal relevantly submitted the following:

4. [87]

   In oral submissions Mr Kuksal relevantly submitted the following:

Resolution

1. [88]

   “The expression procedural fairness… conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case”: Mason J in Kioa v West (1985) 159 CLR 550, at 585.

2. [89]

   Procedural fairness generally involves two considerations, the fair hearing rule and the rule against bias: See Gleeson CJ in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [25]. Mr Kuksal submissions appear to be aimed at the latter, given that in oral submissions he stated:

3. [90]

   He is therefore unlikely to be submitting that he had not been afforded an opportunity to be heard in violation of the fair hearing rule.

4. [91]

   The rule against bias seeks to ensure that a decision maker is impartial and can be considered to have not pre-judged a decision. Where bias is alleged, cases may be divided into those alleging actual bias, and those alleging an appearance or apprehension of bias. Mr Kuksal does not appear to be alleging actual bias, but rather the apprehension of bias having relevantly submitted:

5. [92]

   Whether there has been an apprehension of bias, is determined by reference to the standards of a hypothetical fair minded observer who has knowledge of the circumstances: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Johnson v Johnson (2000) 74 ALJR 1380; 174 ALR 655.

6. [93]

   Despite Mr Kuksal’s submission that the Magistrate considered “all the evidence before her and made a determination as to the facts of the matter” the Magistrate gave her reasons for her decision at the hearing of 10 March 2021, which can be found starting at page 6 line 4 of that transcript. A relevant portion of Her Honour’s reasoning is reproduced at [16] in this judgment.

7. [94]

   In giving her decision, Her Honour made reference to the history of the matter, the numerous adjournments that had been granted due to COVID restrictions and her order that the parties attend the hearing in person as proceeding by phone was too difficult made on 2 November 2020 (T6.4-32).

8. [95]

   Her Honour also made reference to the fact that the judgment creditor (Lumi) was ready to proceed with the hearing on 10 March 2021 and had made arrangements for legal representatives and witnesses to attend Court (T6.32-48).

9. [96]

   Her Honour considered Mr Kuksal’s medical certificate, which was sent after having been contacted by a court officer on the day of the hearing, contained no official marks (for example no address, no seal, and no phone number), and was not accompanied by an affidavit explaining the situation or showing that Mr Kuksal had made arrangements to come to Sydney for the hearing (T6.43-7.13).

10. [97]

    Her Honour then set out the principles governing civil procedure in New South Wales, making reference to the overriding purpose of the Civil Procedure Act to facilitate the just quick and cheap resolution of the real issues in proceedings contained in s 56, the objects of case management in s 57, and the dictates of justice in s 58 (T7.22-50).

11. [98]

    Her Honour then made reference to s 61 of the Civil Procedure Act which empowers the Court to dismiss the matter in circumstances where a party has failed to comply with a direction, and her powers of practice and procedure in Part 6 Division 1 of the Civil Procedure Act.

12. [99]

    In my view, a hypothetical fair minded observer who has knowledge of the circumstances would not apprehend that Her Honour exhibited any bias toward Mr Kuksal in the making of her decision. The matter was dismissed not in circumstances where the totality of the evidence was considered, but rather pursuant to the Court’s powers of practice and procedure. For those reasons it is my view that Mr Kuksal has not been denied procedural fairness in such a way that gives him grounds to appeal the decision.

Did the Magistrate fail to follow the law with respect to the determination of proper service?

1. [100]

   Mr Kuksal’s second ground of appeal is that the Magistrate failed to follow the law with respect to the determination of proper service in the original matter.

2. [101]

   Mr Kuksal’s submissions in relation to this ground centred on the assertion that he had not been served a letter of demand by Lumi in advance of their application for default judgment and this meant the proceedings were brought in bad faith and were an abuse of process.

3. [102]

   In oral submissions Mr Kuksal said the following:

4. [103]

   Mr Kuksal substantiated his submission that he had not been served with the letter of demand purportedly served by Lumi on 10 October 2019 by reference to Lumi’s statement of claim filed on 14 November 2019 (the “statement of claim”) and Kuksal Aff 16 June 20.

5. [104]

   In the statement of claim Lumi lists the address at which Efektiv was served as being XXXX Coventry Street, Southbank, VIC 3006 (the “Coventry St address”) and Mr Kuksal’s address as XXXX Collins Street Docklands, VIC 3008 (the “Collins St address”).

6. [105]

   In the affidavit of service of Sam Fimai on 10 February 2020 (“Fimai Aff 10 Feb 20”) he says at [2]-[4]:

7. [106]

   In Kuksal Aff 16 June 20 at [6] Mr Kuksal deposed that after the appointment of a liquidator to oversee Efektiv’s affairs, he and all other entities related to Efektiv moved from the Coventry address to XXXX Nossal Drive, Point Cook, VIC 3030 (“the Nossal Drive address”). He deposes this transition occurred before 26 January 2020.

8. [107]

   Mr Kuksal also deposed that Efektiv’s address for service had changed to XXXX William Street, Melbourne, VIC 3000 (‘the liquidator’s address”) as of 4 February 2020: Kuksal Aff 16 June 20 at [7]. In support of this Mr Kuksal referred to a copy of the ASIC issued Current and Historical Company Extract which was exhibited to Kuksal Aff 16 June 20 as SK-1 which substantiated his submission, showing Efektif’s address had indeed changed to the liquidator’s address on 4 February 2020.

9. [108]

   Mr Kuksal deposed that throughout February and March of 2020 he exclusively worked out of the Nossal Drive address, had no reason to attend the Coventry St address, and specifically, did not attend the Coventry St address on 10 February 2020 when he was purportedly served by Mr Fimai.

10. [109]

    Mr Kuksal made reference in oral submissions to the affidavits of Lulu Xu deposed on 15 June 2020 (exhibited to Kuksal Aff 16 June 20 as SK-3), Dennis John Clark deposed on 15 June 2020 (exhibited to Kuksal Aff 16 June 2020 as SK-4), and Maria Di Gegorio deposed on 16 June 2020 (exhibited to Kuksal Aff 16 June 2020 as SK-5). These affidavits supported Mr Kuksal’s submission that he had been working out of the Nossal Drive address in February and March of 2020 and to the knowledge of each that he had not attended the Coventry St address on 10 February 2020.

11. [110]

    In oral submissions Mr Kuksal went to great lengths to point out the numerous differences between Fimai Aff 10 February 2020 and the affidavit of service of Sam Fimai on 17 July 2020 (“Fimai Aff 17 July 2020”). This included that Mr Fimai seemed to have a better recollection of the events which occurred on 10 February 2020 in Fimai Aff 17 July 2020 than he did in Fimai Aff 10 February 2020 as there was greater detail about how service was effected on 10 February 2020. In oral submissions Mr Kuksal submitted that the reason for the greater detail in Fimai Aff 17 July 2020 may have been to bolster the Mr Fimai’s credibility in response to his depositions in Kuksal Aff 16 June 2020 (T44.40-T47.7).

12. [111]

    In oral submissions Mr Kuksal referred to Kuksal Aff 16 June 2020 at [21] to [23] where he deposed that he had never used the Collins St address as either an address for service, or a residential address, and that the Collins St address did not even exist as a valid postal address on the date Lumi’s letter of demand was purported to have been mailed to him, the lot having been subdivided before the purported date of service (T49.16-50).

13. [112]

    Mr Kuksal made reference to Bruce v Odhams Press Ltd [1935] 1 KB 697 and Geotech Pty Ltd v Premier Developments Pty Ltd [2017] VCC 874 (“Geotech”), though it was not especially clear which passages in particular Mr Kuksal wished to rely upon. In the copy of the Geotech judgment which Mr Kuksal submitted on the morning of the hearing, a number of passages were highlighted. Relevantly to the issue of service, the following was highlighted:

14. [113]

    In oral submissions, Mr Kuksal made reference to this paragraph briefly at T56.29-31.

15. [114]

    In oral submissions Mr Kuksal referred to White v Western [1968] 2 QB 647 and Sargent v Veneris and Anor BC9507179 (Unreported) which he submitted were authority for the proposition that where proceedings are not in compliance with any rule (such as in this matter where service was not validly effected) a party who has had judgment entered against them was entitled to have that judgment set aside as of right as it was entered irregularly (T59.4-48).

16. [115]

    Mr Kuksal submitted that all these matters were brought to the attention of the Magistrate in the Local Court who did not take account of the fact that the issues with service meant the default judgment was entered irregularly and therefore he did not have to establish a defence on the merits or explain his delay in filing his notice of motion to set aside the default judgment but rather he should have been entitled to have the default judgment set aside as of right. Mr Kuksal submitted the magistrate’s failure to do so meant that she had fallen into jurisdictional error (T51.7-52.3).

Resolution

1. [116]

   Whether or not Mr Kuksal was served with the notice of demand and the statement of claim is a factual dispute between himself and the process server. It would require a finding of fact. An appeal cannot be brought in this Court as to a finding of fact.

Final Resolution

1. [117]

   For the reasons set out above I do not believe that there are substantial reasons to allow appellate review. There is no question of public importance, nor is there a reasonably clear injustice beyond reasonably arguable allegations. It is my view that Mr Kuksal’s appeal is hopeless. Accordingly I would not allow Mr Kuksal leave to appeal, were that a determination I was required to make in these proceedings.

Result

1. [118]

   The appeal in proceedings numbered 2019/358522 commenced by summons filed 9 April 2021 is dismissed as incompetent.

Costs

1. [119]

   Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant’s costs on an ordinary basis.

   1. (1)

      The Court orders that the appeal in proceedings numbered 2019/358522 commenced by summons filed 9 April 2021 is dismissed as incompetent.

   2. (2)

      The plaintiff is to pay the defendant’s costs on an ordinary basis.