Hussain v Ngep

Case [2015] ACTSC 71

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Hussain & Anor v Ngep & Anor

Citation:

[2015] ACTSC 71

Hearing Dates:

11, 23 March 2015

DecisionDate:

1 April 2015

Before:

Mossop M

Decision:

The application dated 24 November 2014 is dismissed with costs.

Category:

Principal Judgment

Catchwords:

APPEAL – application for extension of time in which to appeal from decision of Magistrates Court – whether there is a power under the Court Procedure Rules 2006 (ACT) r 5103 to grant an extension of time to appeal pursuant to the Magistrates Court Act 1930 (ACT) s 274 – where inadequate explanation for delay – where poor prospects of success on an appeal – application dismissed

Legislation Cited:

Court Procedure Rules 2006 (ACT) r 6, r 5103

Legislation Act 2001 (ACT) s 151C

Magistrates Court Act 1930 (ACT) s 274

Cases Cited:

Clune v Watson [1882] Tarl 75

Director of Public Prosecutions (ACT) v Martin (2014) 9 ACTLR 1

Effem Foods Pty Limited v Lake Cumbeline Pty Limited & Ors (1999) 161 ALR 599
Fox v Percy (2003) 214 CLR 118
Harding v Bourke (2000) 48 NSWLR 598
Re Coles & Raveshear [1907] 1 KB 1
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306
Teo Tran t/as Canberra Direct and as Canberra Mailing v Calvista Australia Pty Ltd [2010] ACTCA 5
Urbaniak-Bak v Prail [2014] ACTSC 171
Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2014] ACTCA 32

Parties:

Mohammad Hussain (First Applicant)

M.M. International (Australia) Pty Ltd ACN 088 104 170 (Second Applicant)

Sok Kheng Ngep (First Respondent)

Angkor What Pty Ltd (Second Respondent)

Representation:

Counsel:

Self-represented (Applicants)

Mr J Moffett (Respondents)

Solicitors:

Self-represented (Applicants)

A Backhouse & Associates (Respondents)

File Number:

SCA 103 of 2014

  1. This is an application for an extension of time in which to appeal from a decision of a magistrate given on 7 October 2014.  The application for leave to appeal was filed on 24 November 2014.

  1. The proceedings below related to a claim by the respondents for payment pursuant to an agreement for the sale of a vehicle that was operated as a taxi.  The respondents were successful in the Magistrates Court, obtaining a judgment of $18,034.27.  That comprised an amount representing unpaid instalments due under the agreement for the sale of the vehicle plus interest.

  1. The application was listed for hearing before me on 11 March 2015.  Mr Hussain appeared on his own behalf and by leave on behalf of the second applicant.  He was assisted by his wife, Mrs Bilkis, who is also a director of the second applicant.  Mr Moffett of counsel appeared for the respondents.

  1. On that date Mr Hussain applied for an adjournment on a variety of grounds.  I refused that adjournment for reasons which I gave at the time. However, because Mr Hussain was unrepresented and complaining of ill health, I heard the respondent’s submissions first.  Counsel for the respondents commenced but did not…

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Hussain v Ngep [2015] ACTSC 71
Case
[2015] ACTSC 71
Decision Date

CaseChat Overview and Summary

Hussain v Ngep is an appeal concerning the application for an extension of time to appeal a decision made by the Magistrates Court. The applicant, Hussain, sought to appeal the decision but missed the deadline, citing inadequate explanation for the delay and poor prospects of success on appeal. The court had to decide whether there was a power under the Court Procedure Rules 2006 (ACT) r 5103 to grant an extension of time to appeal, and whether the application should be dismissed given the inadequate explanation and poor prospects.

The court considered the explanation for the delay and the prospects of success on appeal. The court found that the explanation for the delay was not compelling and the grounds of appeal were weak or difficult. The court also examined the further evidence that the applicant intended to tender if the appeal was allowed, which included affidavit material and documentary evidence. The court concluded that the material was unlikely to be admitted into evidence as it did not provide a good reason for not being tendered at the trial and it would not likely affect the outcome of the trial.

The court exercised its discretion to refuse an extension of time in which to file the appeal, as the explanation for the failure to file the notice of appeal within time was less than compelling and the grounds of appeal were weak or difficult. The court also found that it would not be appropriate to exercise the power under r 6 of the Court Procedures Rules to dispense with the operation of the rules relating to when an appeal must be filed. Therefore, the application for an extension of time to appeal was dismissed with costs.

The court's decision highlights the importance of meeting deadlines and providing a compelling explanation for any delay. The court also emphasized the need for strong grounds of appeal to succeed in an appeal. The court's decision serves as a reminder to litigants to act promptly and to ensure that their grounds of appeal are well-founded.

Orders

Orders of the court

The application dated 24 November 2014 is dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Further evidence: In assessing the grounds of appeal and the other submissions of the applicants, I have had regard to the material which Mr Hussain indicated he would wish to tender on the appeal if leave to appeal out of time was granted. That material comprised: Having regard to the test for the approach to be applied set out at [38], if leave to appeal was granted it is unlikely that this material would be admitted into evidence for two reasons. First, there is no good reason why the material was not tendered at trial. The affidavit material substantially repeats evidence given or submissions made at the trial. In relation to the documentary material, there is no explanation as to why, if it was in the possession of the applicants, it was not tendered at the trial. The fact that some of the material was produced on subpoena issued for the purposes of this application for an extension of the time in which to appeal does not provide a good reason why it was not tendered at trial. There is no reason why the material could not have been subpoenaed prior to the trial in the Magistrates Court. Second, the admission of the further evidence would be unlikely to have any effect on the outcome of the trial. The outcome of the trial largely turned on the assessment of the credibility of witnesses. The documentary material produced for the purposes of the appeal did not demonstrate that the assessment was wrong and was not otherwise inconsistent in any material way with his Honour’s findings. It provided further evidence about the price of the vehicle and the transactions involving Mr Van Vliet necessary to permit its transfer to MM International. Although Mr Hussain placed considerable emphasis on a Red Book valuation of a vehicle of the same model, even if that was otherwise admissible on an appeal, it would not be probative evidence that demonstrated his Honour’s conclusions were wrong. Conclusion on leave to appeal out of time: Having regard to the less than compelling explanation for the failure to file the notice of appeal within time and the weakness or other difficulties with the grounds of appeal and other arguments put forward by the applicants, I would, in the exercise of my discretion, refuse an extension of time in which to file the appeal. The position is therefore: In those circumstances it would not be appropriate to exercise the power under r 6 of the Court Procedures Rules to dispense with the operation of the rules relating to when an appeal must be filed. It is therefore not necessary to separately consider the principles to be applied to the making of an order under r 6 that would permit a departure from the requirements of the rules relating to the time in which the appeal should be brought. The order of the Court is therefore:

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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