Hussain v Shahidulalam

[2018] NSWSC 1742

Supreme Court

New South Wales

Medium Neutral Citation:

Hussain v Shahidulalam [2018] NSWSC 1742

Hearing dates:

10 May 2018

Date of orders:

14 November 2018

Decision date:

14 November 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   The plaintiff is granted an extension of time such as would allow the appeal to be filed on the date it was filed, namely, 14 February 2017;

 

(2)   Leave to appeal refused;

 

(3)   To the extent necessary, and not covered by the refusal of leave to appeal, appeal dismissed;

 (4)   The plaintiff shall pay the defendant’s costs of and incidental to the proceedings in this Court.

Catchwords:

APPEAL – alleged denial of natural justice – summary dismissal of plaintiff’s proceedings – abundant opportunity to prepare and to present case – alleged medical difficulties in attending court – not accepted by Local Court – interlocutory decision – leave required – jurisdictional issue without merit – leave to appeal refused and, to the extent necessary, appeal dismissed.

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56
Family Law Act 1975 (Cth)
Limitation Act 1969 (NSW), s 54(2)(a)
Local Court Act 2007 (NSW) ss 39, 40
Supreme Court of Judicature Act 1873 (UK) Rules
Uniform Civil Procedure Rules 2005 (NSW), r 12.7

Cases Cited:

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126
Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389; [1996] HCA 36
Haider v JP Morgan Holdings Aust Ltd Trading as JP Morgan Operations Australia Ltd [2007] NSWCA 158
Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36;
House v The King (1936) 55 CLR 499; [1936] HCA 40
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104
M v R (1994) 181 CLR 487; [1994] HCA 63
Morris v R (1987) 163 CLR 454; [1987] HCA 50;
Ormwave Pty Ltd v Smith [2007] NSWCA 210
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1
R v R (1989) 18 NSWLR 74;
Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47
Sullivan v Department of Transport (1978) 20 ALR 323
Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272

Texts Cited:

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM–V), (5th ed, 2013, American Psychiatric Association)

Category:

Procedural and other rulings

Parties:

Mohammad Munir Hussain (Plaintiff)
Md Shahidulalam (Defendant)

Representation:

Solicitors:
Self-represented (Plaintiff)
Executive Legal (Defendant)

File Number(s):

2017/47400

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Civil

Date of Decision:

18 August 2016

Before:

Greenwood LCM

File Number(s):

2005/361305

Judgment

1. HIS HONOUR: By Summons filed on 14 February 2017, the plaintiff, Mohammad Munir Hussain, seeks to appeal the decision of the Local Court made on 18 August 2016 dismissing his claim as a plaintiff before the Local Court against Md Shahidulalam, the applicant on the Motion in the Local Court and the defendant in both the Local Court and in these proceedings.

2. The substantive proceedings commenced in the Local Court in or about August 2005, and is a claim for approximately $20,000 said to be owed by the defendant to the plaintiff, plus interest, arising from an oral agreement in which the plaintiff lent the aforesaid amount to the defendant in order for the defendant (with his wife, who is the plaintiff’s niece) to purchase, or provide a deposit for purchase, of accommodation. The loan money was allegedly provided in March 1998.

3. Allegedly, according to the agreement upon which the plaintiff sued, money was to have been paid by the defendant to the plaintiff at the rate of $500 per month, commencing from 7 April 1998. In about October/November 1999, according to the plaintiff, the defendant paid $3,000 leaving $12,000 that was, at that stage, outstanding. The terms of the substantive cause of action seems, at least at some point, to double count on interest, but that issue is not a matter relevant to the current judgment.

4. The payment of $3,000 was said to have confirmed the loan and the debt and, pursuant to the terms of s 54(2)(a) of the Limitation Act 1969 (NSW) overcomes what would otherwise have been a fatal limitation in the processing of the claim. It is unnecessary to decide whether this is so.

5. At the hearing, the plaintiff sought to rely upon an affidavit that was not before the Court. Leave was granted to file at a later time the affidavit in question. A timetable was set to which the plaintiff did not adhere. Eventually the affidavit was filed and it has been read and considered.

Procedural history

6. As earlier stated, the substance of proceedings in the Local Court were commenced by a Statement of Claim filed on 24 August 2005. Apparently, although all the evidence is not wholly satisfactory, the Statement of Claim was served by the plaintiff on the defendant at about that date.

7. On 28 September 2005, the plaintiff applied for and was granted default judgment in relation to the claim. It is unclear whether the default judgment was served on the defendant in a timely manner.

8. On 20 April 2015, the defendant’s solicitors filed a Notice of Appointment Form 11A (the Local Court equivalent of a Notice of Appearance) and filed a Notice of Motion seeking to set aside default judgment.

9. On 14 May 2015, the Local Court set aside the default judgment entered on 28 September 2005 and transferred the proceedings to Bankstown Local Court.

10. On 20 November 2015, the Local Court (Magistrate Milledge) dismissed the plaintiff’s proceedings under rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) for lack of due dispatch and ordered that the plaintiff pay the defendant’s costs. The plaintiff failed to appear and relied upon medical documents for his non-appearance.

11. On 4 February 2016, the plaintiff filed a Motion, on notice, seeking to set aside the orders of the Local Court made on 20 November 2015; and to set the defendant’s Motion for hearing on a date to be prescribed by the Court. Further, the new date for hearing would be the date for hearing of the Motion of the defendant that the plaintiff provide security for costs. The orders of 20 November 2015 were set aside, but the plaintiff was ordered to pay the defendant’s costs at the hearing on 4 February 2016.

12. The Local Court set the matter down for hearing of the substantive claim on 1 August 2016. That was done on or about 5 May 2016 and directions were given for the filing and service of evidence and/or submissions.

13. According to the procedural requirements of the Local Court, a matter that is listed for a fixed hearing, is listed for directions for “review” on which date the Local Court confirms whether the matter will proceed. That review occurred on 28 June 2016, before Magistrate Keogh, at which time the Local Court confirmed the hearing date of 1 August 2016.

14. At the hearing, on 28 June 2016, the plaintiff sought leave to file further evidence in relation to the matter (despite the time having elapsed pursuant to the earlier directions) and her Honour Keogh LCM refused that application and refused an application to vacate the hearing date.

15. On 8 July 2016, the plaintiff filed a formal Motion, on notice, seeking to vacate the hearing date of 1 August 2016 and seeking leave to file further evidence. The plaintiff’s aforesaid Motion was listed for hearing on 21 July 2016, before her Honour Magistrate Greenwood, on which date her Honour refused to vacate the hearing dates, but did grant leave for the plaintiff to file further affidavit evidence, being an affidavit of the plaintiff’s son in relation to the proceedings.

16. On the date set for hearing, namely 1 August 2016, the matter did not proceed to hearing. It seems that was as a result of two factors. First, the matter was, as is not unusual, in the call over list to be allocated a magistrate and had not yet been allocated. During the delay between the matter being called over and the allocation of the matter for hearing, the plaintiff suffered what he alleged to be a heart attack; was transported to hospital; and the hearing was vacated.

17. The evidence thereafter is, in some respects, conflicting. There is a discharge notice from St Vincent’s Hospital on 1 August 2016, but there is other evidence, independent of the plaintiff, that suggests that the plaintiff was in hospital overnight on 1 August 2016, and was discharged on 2 August. I accept 2 August as the date of discharge.

18. The Affidavit of the plaintiff of 14 August 2016 attaches a combination of medical certificates and photographs of the plaintiff in hospital. The relevance of the photographs and the medical certificates is not immediately apparent. There is no issue about the proceedings on 1 August which, it seems, is the date on which these photographs were taken. Annexure D to the same Affidavit is a Discharge Summary Referral completed by the attending medical officer, Dr Stephanie Wilson, in which the principal diagnosis is non-cardiac chest pain. The medical history recites that three stents were inserted in order to treat IHD (Ischaemic Heart Disease).

19. The Discharge Summary Referral notes that the admission date was 1 August 2016 and all tests were performed on 1 August 2016, although that discharge seems to have been finalised on 2 August 2016. A handwritten medical attendant certificate is dated 2 August 2016 and refers to the plaintiff being an inpatient from 1 August to 2 August 2016.

20. The difficulty that was apparently suffered at court on 1 August was not a heart attack, at least according to the discharge summary, and the lump about which the plaintiff complained on the left-side of his chest wall was thought likely to be a lipoma (not cardiac related).

21. There are other certificates that are more problematic. Apparently, before the magistrates, the plaintiff relied upon a medical certificate of his general practitioner, dated 24 July 2016, in which the medical practitioner “confirms” that he will be unfit for work from 21 July 2016 to 2 August 2016. Apparently, as at 24 July 2016, the plaintiff had a “chest infection”. He was also said to have IHD (which historically is correct).

22. Notwithstanding his unfitness for work, the plaintiff attended on a psychologist, Wayne Rowe on 29 July 2016, who states that the plaintiff was suffering extreme “Emotional Stress, Depression and Anxiety as the result of the pressure from his assaults and court cases that are impending”. The assaults were historical and not of recent origin.

23. The general practitioner, to which the Court has earlier referred, also “confirmed” that the plaintiff’s wife was also unfit between 24 July 2016 and 2 August 2016, because of an injury to the right hand, the nature of which is unspecified.

24. On 5 August 2016, the defendant filed a Motion for summary dismissal of the Statement of Claim, which was served on the plaintiff. The Motion was listed for hearing on 18 August 2016. The plaintiff was well aware of the date on which the motion was to be heard. The discharge summary for 1 and 2 August 2016 makes clear that no ongoing medication was required. Nor did the plaintiff require any ongoing treatment, other than, perhaps, the removal of the lipoma.

25. On 10 August 2016, the plaintiff sent an email to the Local Court to the effect that he was unwell as a result of what he alleged was a heart attack on 1 August and it was “not possible for [him] to [attend] the court on 18 August as [he had] to go through [his] cardiologist and [his] GP and [there] might be various tests and [he] did not want to provide false hope that [he] will be there for this Notice of Motion hearing as [his] health issue is [his] first priority and [he is] the only one who is suffering the prejudice”.

26. There is little doubt that the plaintiff has a history of Ischaemic Heart Disease. There is also little doubt that the plaintiff had stents inserted for the purpose of dealing with that disease.

27. The discharge information on which the plaintiff relies, as already stated, does not disclose the occurrence of a heart attack (to use lay terms) on 1 August. It may be that the plaintiff genuinely had chest pains if, as the plaintiff submits in relation to other medical evidence, he was suffering from stress, depression and anxiety as a result of the court cases and suffered, for example, a stress attack. But the medical evidence is inconsistent with the occurrence of a heart attack on 1 August and the plaintiff’s reliance on that is wholly misplaced.

28. The email of 10 August 2016 refers to the plaintiff requiring approval of his cardiologist and general practitioner in relation to the attendance at court on 18 August. There is no evidence to support that proposition.

29. The medical certificate on which the plaintiff relied, if reliance be the correct term, was a certificate from his general practitioner certifying that the plaintiff was “unfit for work” from 14 August 2016 to 13 September 2016. There are two fundamental difficulties with that certification.

30. First, that which was occurring on 18 August 2016 was not the plaintiff’s work. If the certificate were to be relied upon for the purpose of adjourning the proceedings before the Local Court, the certificate needed to make clear that the plaintiff would not be fit to give evidence and/or represent himself before court.

31. Secondly, the General Practitioner asserts that the plaintiff was unfit for work as a consequence of “low mood depression anxiety”, not, as the plaintiff asserts, his historical heart condition.

32. Such a diagnosis is not one of the diagnoses described under the DSM-V. That is not conclusive as to its non-existence. As is clear from other evidence, the plaintiff was being treated by a psychologist (Mr Rowe), at least as at 29 July 2016, yet there is no certificate or evidence from Mr Rowe relating to his inability to attend court.

33. Further, on the certificate that is available, which emanates from an appointment with Mr Rowe on 29 July 2016, Mr Rowe refers to the plaintiff as his “client”, from which I draw the inference that it is an ongoing relationship. Secondly, Mr Rowe attests to the suffering of conditions, which have been recited earlier in these reasons for judgment, but does not at any stage suggest that he is unfit for court or unfit for work.

34. Thirdly, if the emotional distress, depression and anxiety are, in part, as a result of the pressure from his court cases, it seems that the plaintiff would never be able to attend court to prosecute the claim that he lodged in the Local Court. On the face of it, that would be a good reason why the plaintiff would require legal representation before the Local Court, so that he could appear as a witness only and not have the stress of running the proceedings.

35. The plaintiff apparently received a communication from the Registrar of the Local Court making it clear that he would need to be at court on 18 August 2016 or have someone attend on that date on his behalf or the matter would be dealt with in his absence. As earlier stated, he then wrote on 10 August and again on 14 August attaching an affidavit and the certificate of 14 August to which reference has already been made.

Difficulties with the Statement of Claim

36. As earlier stated the Statement of Claim was filed in August 2005. It relies on an oral agreement made in March 1998 on a loan of $15,000 (being the amount outstanding together with the $3,000 already paid). Before the Court is a document seemingly executed in Bangladesh and evidencing an agreement between the plaintiff and defendant that had already been made on 15 March 1998. The amounts are referred to in Bangladeshi currency, but, for present purposes, I am prepared to accept that they relate to the amounts alleged by the plaintiff. The terms of that “agreement” require a payment before the end of the seventh day of each month up to and including nine months from the date of the agreement at which point the borrower must “refund all” of the amount purportedly borrowed.

37. Leaving aside the rules on parole evidence and whether the oral agreement was an agreement that was capable of being enforced, and assuming that the oral agreement was made on or about 15 March 1998, the agreement requires the amount to be paid nine months from March 1998, namely, by 15 December 1998.

38. On the basis of the foregoing, the claim in the Local Court made in 2005 was out of time. In order to relieve himself of that difficulty, the plaintiff alleges that an amount of $3,000 was paid to him as part payment of the amount owing on 4 November 1999.

39. The difficulty with that proposition is the money was not paid by the defendant. It is alleged that the amount was paid by the defendant’s wife (the niece of the plaintiff), who has since separated from the defendant. All of the witnesses to this part payment are members of the plaintiff’s family.

40. Apparently in furtherance of this debt, at least according to the plaintiff, a mortgage was executed over property. Nevertheless, while it is suggested that the mortgage documents, the authenticity of which are in dispute, were signed by the defendant, the mortgagee is not the plaintiff but a company, the principal of which is not in evidence.

41. Lastly, if the agreement is effective and relates to the alleged loan, the remedy available under the agreement, according to its terms, is not to sue for the amount borrowed plus interest, but the forfeiture of property in Bangladesh.

Grounds of Appeal

42. The appeal is against the whole decision of her Honour Magistrate Greenwood of 18 August 2016. The appeal was filed on 14 February 2017 and is out of time.

43. The appeal grounds run to some 21 paragraphs none of which, with any precision, recites grounds of appeal. The appeal “grounds” are a discussion of some parts of the procedural history, most of which has been described in the foregoing paragraphs of these reasons for judgment.

44. Some allowance must be made because the plaintiff is self-represented, but there are limits to the degree that such an allowance can be made. It is not for the Court to guess at the grounds upon which the plaintiff relies.

45. The grounds of appeal assert the existence of a medical condition and his inability to attend at court on 1 August 2016. That matter has been the subject of comment earlier. The orders or proceedings on 1 August are irrelevant to any order or difficulty relating to the appeal.

46. Paragraph 9 of the Summons asserts that the Notice of Motion was heard by the Local Court on 18 August and the Local Court “failed to accept my severe and strong medical grounds, my Affidavit dated 14 August 2016 with explanation of being unable to attain [sic: read as “attend”] court” (Ground 1).

47. At paragraph 10 the plaintiff, whose first language seems not to be English, asserts that the Magistrate “discriminately dismissed the Claim as she abused me [on] another occasion before her … on 22 July 2016” (Ground 2). The remainder of the paragraphs are an explanation for the late filing of the appeal, which was occasioned by, the plaintiff says, the wrong advice from Registry staff at the Local Court. They suggested, it is said, that the plaintiff file the appeal in the District Court, which was corrected by the Registrar of the District Court, who advised the appropriate court to hear an appeal of this kind.

48. As a consequence of the foregoing I have ascertained that the two essential grounds of appeal are:

1. A denial of natural justice and/or an error of the exercise of discretion in refusing to adjourn the proceedings on 18 August 2016;

2. Apprehended bias.

Consideration of the Grounds of Appeal

Ground 1

49. It is well-established that a court or tribunal that is to determine the rights of a party to litigation is required to provide that party with a proper and reasonable opportunity to prepare the party’s case and to present the party’s case. However, the duty imposed upon a court or tribunal that is required to act judicially in relation to the foregoing does not include an obligation to ensure that the party, provided with an opportunity, uses that opportunity to his, her or its best advantage: Sullivan v Department of Transport (1978) 20 ALR 323 at 343, per Deane J (then as a member of the Full Court of the Federal Court of Australia).

49. There can be little doubt that the plaintiff was provided a reasonable and appropriate period of time to prepare his case. There is also little doubt that the plaintiff has been given a number of opportunities to present his case. On each occasion, the plaintiff alleges he was unwell.

50. The plaintiff may have been unwell. The medical certificates are less than satisfactory and give rise to an inference that any occasion on which the matter was listed for hearing (for substantive relief) would be an occasion on which the plaintiff would be unwell.

51. The Local Court was required, in accordance with the law as it applies in New South Wales, to balance perfect justice with the necessity for case management and the efficient conduct of litigation. The Magistrate referred to the provisions of s 56 of the Civil Procedure Act 2005 (NSW), which is in the following terms:

“56    Overriding Purpose

(cf SCR Part 1, rule 3)

(1)    The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2)    The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3)    A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

(4)    Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3):

(a)    any solicitor or barrister representing the party in the proceedings,

(b)    any person with a relevant interest in the proceedings commenced by the party.

(5)    The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.

(6)    For the purposes of this section, a person has a ‘relevant interest’ in civil proceedings if the person:

(a)    provides financial assistance or other assistance to any party to the proceedings, and

(b)    exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings.

Note : Examples of persons who may have a relevant interest are insurers and persons who fund litigation.”

53. These are proceedings for a debt of $20,000 that was said to arise 19 or 20 years before the date on which the Magistrate was required to deal with the matter. The plaintiff had consistently failed to attend on any date on which the proceedings were listed for substantive hearing. Special fixtures, which prejudice litigants in other matters before the Local Court, were not utilised.

54. Plainly, the requirements of s 56 for efficiency (the proceedings need to be quick) is a significant factor in the determination of her Honour Magistrate Greenwood’s discretion. Further, the requirements relating to the cost of proceedings was a factor that was required to weigh heavily in any exercise of discretion by her Honour Magistrate Greenwood.

55. Thus, those two aspects must be weighed against a result that achieves “a just” result. It is not absolutely clear that a “just result” is achieved by further adjourning the proceedings on 18 August 2018.

56. It was necessary for the Magistrate to consider the strength of the Statement of Claim and the allegations made; the time delay between alleged default on the alleged agreement and proceedings being taken; the time delay between default judgment and any attempt to enforce default judgment; and the delay in prosecuting the claim thereafter. Further, the prejudice to the defendant and litigants in other proceedings as a result of the matter being repeatedly adjourned or vacated must be weighed in this matrix, if justice is to be served.

57. As earlier explained, there are significant inconsistencies with that which is relied upon by the plaintiff. It is more than possible that the alleged debt and its enforcement is more a result of the acrimony caused by the separation of the defendant from his wife (the niece of the plaintiff) than any genuine loan or recovery. As a debt, owed by one or other of parties to a marriage, it is property that can be adjudicated by the Family Court or in proceedings under the Family Law Act 1975 (Cth).

58. Whatever be the case, all of these discretionary aspects were considered by her Honour Magistrate Greenwood. The High Court has made clear on a number of occasions that a decision on practice by a lower court should not be the subject of interference on appeal, unless there is a breach of some fundamental principle, such as procedural fairness.

59. The general principle has long been that a decision to refuse (or grant) an adjournment application is a matter wholly within the discretion of the court or tribunal to which the application is made. An appeal against such a decision is an appeal against a discretionary decision and will be subject to interference by an appeal court only on one of the well-known bases dealing with discretionary judgments: House v The King (1936) 55 CLR 499; [1936] HCA 40.

60. In these reasons for judgment the Court has already referred to the principle that a party is entitled to the opportunity of adequately presenting his or her or its case. In Sullivan, supra, Deane J (with which, relevantly, Fisher J agreed) said:

“A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment to enable him to procure Dr Evans’ attendance as a witness, that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506 ). In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.” (Sullivan, supra, at 343.)

61. In Sali v SPC Ltd (1993) 67 ALJR 841 at 843; [1993] HCA 47, the High Court (Brennan, Deane and McHugh JJ) said:

“In Maxwell v Keun, the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions.

Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action.”

62. Both of the foregoing were statements of principle prior to the promulgation of s 56 of the Civil Procedure Act. Case management, the principles of efficiency and reduction of the expense of litigation are issues that, as earlier stated, must be balanced against the justice of the case.

63. The High Court dealt with the principles embodied by a provision in Tasmanian legislation in or to the same effect as s 56 of the Civil Procedure Act in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27. In AON Risk, French CJ referred to the judgment in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1 and said:

“That case arose out of an entirely different factual setting. However, to the extent that statements about the exercise of the discretion to amend pleadings in that case suggest that case management considerations and questions of proper use of court resources are to be discounted or given little weight, it should not be regarded as authoritative.” [Footnotes omitted.]

64. Earlier in the judgment of the Chief Justice, he said:

“In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU’s statement of claim should not have been allowed. The discretion of the primary judge miscarried.”

65. His Honour the Chief Justice also referred to the judgment of the High Court in Sali, supra, citing with approval comments of the plurality (Brennan, Deane and McHugh JJ) in Sali relating to the necessity to deal with “justice” by considering the injustice to other parties who are before the courts and the public interest in achieving the most efficient use of court resources. The Chief Justice (at [27]) continued that, in the context of the Supreme Court of Judicature Act 1873 (UK) Rules, “the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn” (citing Sali, supra, at [27]).

66. The plurality in AON Risk (Gummow, Hayne, Crennan, Kiefel and Bell JJ) were to the same or similar effect. At [94], the plurality in AON Risk said:

“Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.

… The statements in J L Holdings do not reflect such an understanding and are not consistent with what was said in Sali v SPC. To say that case management principles should only be applied ‘in extreme circumstances’ to refuse an amendment implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others.” [Footnotes omitted.] (AON Risk, supra, at [94] and [95])

67. At [97], the plurality said:

“The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in J L Holdings in mind. The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory.” [Footnotes omitted.] (Rule 21 of the Court Procedure Rules is to the same or similar effect as s 56 of the Civil Procedure Act in New South Wales.)

68. The application for adjournment was heard and all the material upon which the plaintiff sought to rely was considered by the Magistrate. At least on the issue of whether an adjournment should occur, there was no denial of procedural fairness or natural justice.

69. Moreover, even on the fundamental issue associated with the substantive proceedings, given that the failure to adjourn affected the capacity of the plaintiff to present the whole of his case, the plaintiff has not pointed to a lack of justice that has either not been considered by the Magistrate or that would have required the Magistrate to adjourn the proceedings.

70. On the question of the substantive claim, adumbrated in the Statement of Claim, the plaintiff had, at the time that the Magistrate dealt with the matter, far more than a reasonable opportunity of adequately presenting his case to the court. The case is not a strong one, but, if the plaintiff were to have been prepared to prosecute the proceedings in a reasonable manner, was arguable, depending upon the findings of fact.

71. I have already commented that the findings of fact that would enable the plaintiff to succeed were open to serious criticism relating to the operation of the Limitation Act; the entitlement under the alleged agreement to sue for the return of the principal; and the inconsistency in the factual assertions. Nevertheless, those issues depend upon questions of fact on which, ordinarily, the plaintiff would be entitled to be heard.

72. However, the plaintiff has been given a number of opportunities to be heard and, at each opportunity, has maintained, somewhat questionably, a medical inability to attend court and prosecute the proceedings. As already noted in the comment, the learned Magistrate was not persuaded by the medical evidence annexed to the Affidavit of the plaintiff on 14 August 2016 that the plaintiff was, in truth, unable to attend court and prosecute his claim.

73. During the course of the earlier comments in these reasons for judgment, the Court has pointed to some of the fundamental issues associated with the claim that the plaintiff was medically unfit to attend on 18 August 2018. Fundamentally, that issue depends on the determination of fact by the learned Magistrate.

74. If the learned Magistrate determined that question in a manner that was jurisdictionally sound, there has been no denial of procedural fairness. The foregoing should not be taken as a view that the Court, as presently constituted, would have come to a different conclusion as to the medical unfitness. In my view, there are so many inconsistencies and difficulties associated with the allegations of medical unfitness, that the Court, if it were permitted so to do, would have come to the same conclusion as the learned Magistrate.

75. Further, on the face of the documents presented by the plaintiff, the plaintiff’s allegation that he was medically unfit as a result of his heart disease is unsupported and would not satisfy the Court as to his unfitness to attend and prosecute the proceedings. As was made clear by the discharge notes of St Vincent’s Hospital, on 1 August 2018, the plaintiff did not have a heart attack and there was no ongoing reason, associated with the plaintiff’s heart, that proceedings could not thereafter commence and be heard to finality. The plaintiff’s reliance upon his “heart problem” and the approval of his cardiologist, is, to say the least, exaggerated.

76. I do not consider that there has been a denial of natural justice. Nor do I consider that there has been an error of the kind that would justify the Court interfering with the exercise of discretion of the Local Court in relation to the adjournment.

Ground 2

77. This is a ground for which there is no support in any of the material before the Court. The learned Magistrate on an earlier occasion, the transcript of which is before the Court, as has been stated, refused to adjourn or to vacate the hearing date of 1 August 2016, but granted the plaintiff leave to file further evidence in support of his proceedings, although not all of the evidence upon which the plaintiff sought to rely. The earlier proceedings and the orders of the Local Court made on that date are not the subject of appeal.

78. There is no warrant for an accusation that the learned Magistrate acted, on the earlier occasion, in any manner other than in the application of the law and the proper exercise of discretion, pursuant to the duty imposed upon her Honour Magistrate Greenwood (and the litigants) by the terms of s 56 of the Civil Procedure Act.

79. Since the appeal is taken only from the judgment of 18 August 2016, it seems that any interlocutory judgment as to the evidence that could be adduced is only marginally relevant. I accept that the interlocutory judgment merges in the judgment last given on 18 August 2016.

80. Nevertheless, the Affidavit of the plaintiff’s brother, which is the Affidavit for which leave to file and rely upon was not granted, was plainly hearsay and the grant of leave to file that Affidavit and rely upon it in the proceedings would have led to significant delay in the finalisation of the proceedings. This is in the context of a debt, as already stated, that was allegedly incurred in 1998.

81. The discretion exercised by her Honour Magistrate Greenwood in refusing to adjourn the hearing on 1 August 2017 is no longer efficacious. The hearing was adjourned in any event. The exercise of discretion, in refusing to allow the filing of and reliance upon the Affidavit of the plaintiff’s brother, is an exercise of discretion upon which the Court would not, ordinarily, interfere. No good reason has been given for interference on this occasion.

82. As for the allegation, again wholly unsupported, that the learned Magistrate “abused” the plaintiff, the Court makes the following comments. As earlier stated, the transcript is before the Court. At the time, the plaintiff was represented, but the plaintiff sought to speak and address the court, during the course of her Honour Magistrate Greenwood delivering reasons for judgment and was told that he was not entitled to act in that way and he should address the court through his solicitor. The exchange was not abuse and there is no ground that would give rise to any apprehended bias.

Jurisdiction of the Court

83. The plaintiff seeks to appeal to the Court pursuant to s 39 of the Local Court Act 2007 (NSW). Section 39 of the Local Court Act grants to a party to proceedings before the Local Court, sitting in its General Division, who is dissatisfied with a judgment or order of the court, the right to appeal to the Supreme Court, but only on a question of law. The Local Court proceedings were filed in the General Division of the Local Court.

84. Further, s 40 of the Local Court Act allows a party to such proceedings, dissatisfied with a judgment or order of the Local Court, to appeal on the ground that it involves a question of “mixed law and fact” to this Court, but only by leave of the Court.

85. The mere fact that a question of law or jurisdiction is involved in the determination of an appeal or is agitated on appeal does not require the conclusion that the ground is “only on a question of law”. Thus, an appeal on the basis that a determination was made in the absence of evidence on that question, while a decision on a question of law by the appeal court, is nevertheless a question of mixed law and fact: R v R (1989) 18 NSWLR 74; Morris v R (1987) 163 CLR 454; [1987] HCA 50; M v R (1994) 181 CLR 487; [1994] HCA 63.

86. While dealing with the rights of appeal under the Local Court Act, it should be noted that an appeal from an interlocutory judgment or order requires leave, whether or not the ground of appeal is taken “only on a question of law”.

83. At least since 1940, it has been accepted that a finding of fact by a tribunal of fact cannot be disturbed, on appeal, if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting the inferences drawn. These are questions of fact: Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 at 82, per Sir Frederick Jordan CJ; see also Ormwave Pty Ltd v Smith [2007] NSWCA 210 at [12]; Haider v JP Morgan Holdings Aust Ltd Trading as JP Morgan Operations Australia Ltd [2007] NSWCA 158; and the classic discussion in Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389; [1996] HCA 36.

Conclusion

88. For the foregoing reasons, neither of the grounds of appeal that are contained within the Summons has been made out and the Summons cannot succeed. The Court is of the view that, even in relation to the question of jurisdiction and question of law, namely, whether there has been a denial of procedural fairness, this is and must be question of mixed law and fact. As a consequence, there are two other issues that ought to be resolved.

89. First, there is the issue of an extension of time. The plaintiff was ill-advised in relation to whether an appeal should be taken in the District Court or in this Court. I make it clear that it is for parties to determine their own advice and to act upon it.

90. Ordinarily, advice given by registry staff will not suffice as a basis for an extension of time. Parties are required to take their own advice. Nevertheless, the delay has been explained and no prejudice is occasioned to the defendant by the grant of leave to appeal out of time.

91. The Court would and does grant an extension of time for the purpose of allowing the appeal to be filed.

92. The appeal, however, does involve a question of mixed law and fact and does not depend “only on a question of law”. Further, even though the judgment dismissed the proceedings and had a final effect, it did not determine the rights between the parties on a final basis and is an interlocutory judgment: Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36; Wickstead v Browne (1992) 30 NSWLR 1 at 11; [1992] NSWCA 272. The fact that the practical effect of the summary dismissal of proceedings is to finalise the litigation affects the exercise of discretion, but does not make the summary dismissal other than an interlocutory judgment: Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 at [154]-[165]; [2002] NSWCA 104, which dealt with the issue in the context of an interlocutory appeal against an extension under the Limitation Act.

93. On each basis, the applicant requires the leave of the Court. In my view, given the weakness of the plaintiff’s substantive proceeding and the inordinate delay between 1998 and 2005, and between 2005 and the attempt to enforce the default judgment, together with the manner in which the proceedings have been conducted by the plaintiff, leave to appeal should not be granted.

94. It is not beyond doubt that the allegation that there was a denial of natural justice, being jurisdictional, raises “only a question of law”, even though it requires an assessment of fact. To that extent, if leave were unnecessary, I would dismiss the appeal. As is clear from the foregoing, neither Ground of Appeal has merit.

95. The Court makes the following orders:

1. The plaintiff is granted an extension of time such as would allow the appeal to be filed on the date it was filed, namely, 14 February 2017;

2. Leave to appeal refused;

3. To the extent necessary, and not covered by the refusal of leave to appeal, appeal dismissed;

4. The plaintiff shall pay the defendant’s costs of and incidental to the proceedings in this Court.

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Decision last updated: 14 November 2018