Michael John Munday v Proactive Airconditioning Pty Ltd

[2014] ACTSC 110

MICHAEL JOHN MUNDAY v PROACTIVE AIRCONDITIONING PTY LTD
[2014] ACTSC 110 (13 May 2014)

APPEAL – appeal from ACAT – application for leave to appeal out of time – applicant did not attend hearings in the ACAT – significant delay in pursuing proceedings – delay in filing application – public interest in finality of litigation

EX TEMPORE JUDGMENT

ON APPEAL FROM THE AUSTRALIAN CAPITAL TERRITORY CIVIL AND ADMINISTRATIVE TRIBUNAL

No. SCA 36 of 2014

Judge: Burns J             
Supreme Court of the ACT

Date: 13 May 2014    

IN THE SUPREME COURT OF THE     )
  )          No. SCA 36 of 2014
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE AUSTRALIAN CAPITAL TERRITORY CIVIL AND ADMINISTRATIVE TRIBUNAL

MICHAEL JOHN MUNDAY
Applicant

v        

PROACTIVE AIRCONDITIONING PTY LTD

Respondent

ORDER

Judge:Burns J

Date:13 May 2014

Place:Canberra

THE COURT ORDERS THAT: 

1. The application to appeal out of time from the ACAT is dismissed. 

1. This is an application for leave to appeal out of time from a decision of the ACAT.  As I understand it, in 2012, proceedings were commenced by the respondent Pro-Active Airconditioning Pty Ltd seeking payment of a sum of $477 together with a filing fee and various amounts for interest and costs.  Those proceedings were commenced in the ACAT and, as I understand it, related to an allegation that the respondent had undertaken work on behalf of the applicant which had not been paid for. 

2. Default judgment was entered in respect of that claim some time in 2012, although the material before me does not enable me to say precisely when.  In 2012, not long after the default judgment was entered, the applicant lodged an application in the ACAT to set aside the default judgment.  He did not attend on the day of the hearing of that application.  Before me today he has said from the bar table that the reason he did not attend was because on his way to the hearing at the ACAT his car had a flat tyre.  He said that he rang the ACAT to advise that he was late, however he did not attend that day but instead went the next day and discovered that his application to set aside the default judgment had been dismissed. 

3. He then lodged a further application to set aside the default judgment which I understand from what he has said today was due to be heard in January 2013.  On that occasion he forgot to attend and apparently that application was also refused.  He then lodged an application to appeal the judgment which had been entered by default.  The appeal was apparently heard by the appeal president on 24 April last year and was dismissed on that day.  The judgment which had been entered against the applicant was in the sum of $879, being filing fees of $46, a debt of $477, interest in the sum of $56 and costs of $300. 

4. The applicant was aware that he had 28 days in which to appeal from the decision of the appeal president which was handed down on 24 April last year.  For reasons which he has given he did not in fact lodge his appeal within that time.  In fact, he left to go overseas with his wife so that she could undertake, as I understand it, medical treatment.  It was not until ultimately he lodged the present application on 7 May this year that he has taken steps to address the default judgment which was originally entered in 2012 by way of seeking leave to appeal against the judgment of the appeal president of 24 April 2013. 

5. Doubtless there were many things which occupied the mind of the applicant between 2012 and the beginning of this month which to him were of greater significance than dealing with the present application.  There is, however, a public interest in the finality of litigation, and that public interest not only encompasses the interests of the public at large but also the interests of other litigants such as the judgment creditor in this matter. 

6. In my opinion, the judgment creditor should not be called upon to revisit this litigation after such a significant period has passed.  Although no doubt based upon what the applicant considers to be good reasons, the delay in bringing the present proceedings is simply too great, in my opinion, to make it just that the present application, which, of course, deals with a very small amount of money, should be allowed to proceed further.  As such, the application for leave to appeal out of time will be refused. 

7. I have not purported to make my decision based upon the rights and wrongs of the original litigation.  I have made my decision based purely upon the question of delay. 

   I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

   Associate:

   Date:     29 May 2014

Counsel for the Applicant:  the applicant appeared in person

Counsel for the Respondent:  no appearance was entered for the respondent

Date of Hearing:  7 May 2014

Date of Judgment:  7 May 2014