Stephen Kirkman v Commissioner Department of Corrective Services

[2013] NSWSC 833

Supreme Court

New South Wales

Medium Neutral Citation:	Stephen Kirkman v Commissioner Department of Corrective Services [2013] NSWSC 833
Hearing dates:	14 June 2013
Decision date:	14 June 2013
Jurisdiction:	Common Law
Before:	Slattery J
Decision:	Application for leave to appeal dismissed. Appellant to pay the respondent's costs.
Catchwords:	APPEAL - application for leave to appeal against Local Court's refusal to set aside a default judgment - whether detriment requiring leave to be granted identified - no detriment, as appellant may bring a further application in the Local Court to set aside a default judgment - whether error in the Local Court's decision demonstrated - not a matter in which Supreme Court should interfere.
Legislation Cited:	Local Court Act 2007 s 40(2)
Cases Cited:	Ashi Pty Ltd v Karasco Investments Pty Ltd [2009] NSWSC 780
Category:	Separate question
Parties:	Appellant/Defendant: Stephen Kirkman Respondent/Plaintiff: Commissioner Department of Corrective Services
Representation:	Counsel: Solicitors: Appellant: N Nemeruck (with leave, as Mr Kirkman's next friend) Respondent: J Darvall
File Number(s):	2013/0050155

Judgment

1. In this matter the appellant/defendant, Stephen Kirkman, brings an application under the Local Court Act 2007 s 40(2) for leave to appeal to this Court against an interlocutory order of the Local Court, made on 17 January 2013.

1. Mr Kirkman is not here today. He is apparently ill. But a friend of his, a student at law, Mr Nemeruck, has sought the Court's leave to appear as Mr Kirkman's next friend. The Court has granted that leave. Mr Darvall appears on behalf of the defendant/respondent.

1. Applications for leave to appeal against interlocutory judgments of the Local Court must to be supported by clear identification of a detriment which, in justice, requires leave to be granted: Ashi Pty Ltd v Karasco Investments Pty Ltd [2009] NSWSC 780.

1. The relevant Local Court decision was a refusal to set aside a default judgment. On its face the requirement to establish that an injustice or detriment has occurred is not satisfied here. An application to set aside a default judgment in the Local Court is an interlocutory action. Even if it is dismissed it may be brought again. Ordinarily, there is no basis for seeking leave to appeal against such a decision. A simple alternative means is available in the Local Court: bringing a further application. Mr Darvall on behalf of the plaintiff Commissioner also concedes that another application may be brought.

1. Another reason answers this leave application. The appellant/defendant cannot demonstrate any error of the Local Court on 17 January. But to explain this, the Court will need to go a little into the facts.

1. The primary facts may be shortly stated. Mr Kirkman was employed by the Commissioner of Corrective Services. His employment was terminated. The Commissioner brought proceedings in the Local Court to recover salary alleged to have been overpaid to him. The Commissioner's Statement of Claim provided full particulars to Mr Kirkman of this amount of $24,324.87 allegedly overpaid.

1. The plaintiff Commissioner entered default judgment on 26 June 2012 for $28,016.03. He applied to enforce judgment by writ of execution at the Blacktown Local Court.

1. In October 2012 Mr Kirkman applied by motion to set aside the default judgment. His application was to be heard on 8 November 2012. But that motion was dismissed due to lack of any appearance on behalf of Mr Kirkman.

1. By motion dated 27 November 2012 Mr Kirkman sought: again to set aside the default judgment; to be allowed to file a Defence and Cross-claim; that the orders of 8 November 2012 (orders dismissing his previous application) be set aside; and, that the matter be transferred to the Penrith Local Court. This motion was returnable at the Local Court in the central business district, at level 5, 143 Liverpool Street, Sydney. From Mr Kirkman's point of view the Penrith Local Court was a more convenient location for the determination of the proceedings.

1. Mr Kirkman's evidence suggests, and I accept, that he was unable to attend Court on 17 January 2013 due to illness. He claims he forwarded two doctor's certificates to the Local Court on 17 January 2013. One of the doctor's certificates is attached to Mr Kirkman's affidavit, a medical certificate from Dr Anselm Kuok. It said the following:

I have been attending to Mr Kirkman on a professional basis since 1991.

He is being treated for a multiple number of medical problems including P.T.S.D., Emphysema, Diabetes, Hypertension, Sleep Apnoea and Depression along with some other conditions. He is under the care of an Endocrinologist and a number of other Specialists.

The culminations of these ailments cause Mr Kirkman debilitating conditions and in my opinion is medically unfit to travel considerable distances especially due to a reduced lung capacity (<50%). I find him unfit to travel to Court. Along with adversely causing aggravation to his mental and physical state.

1. Dr Kuok's opinion was that Mr Kirkman was unfit to travel to Court on 17 January. If that material had been before the Magistrate on 17 January, a matter which has not been established before me, it would have provided a powerful basis for excusing his non-attendance on 17 January.

1. But Mr Kirkman has not established that any of this was in evidence before the Magistrate. No one has sought in this Court to have the Magistrate's Court file brought up. I cannot see what was before the Magistrate on 17 January. The only evidence I have as to what was done by and was before the Magistrate is a bare statement on the record that there was a dismissal of Mr Kirkman's application. On this ground alone if leave was granted Mr Kirkman's appeal would probably fail.

1. But there is a way ahead. Normally an application to set aside a default judgment is supported with some pleading of a maintainable defence. There are deficiencies in the proposed pleaded Defence, which has been put before me. It pleads as follows:

1 I was never served with a Statement of Claim.

2 I dispute the amount claimed by the Commissioner of Corrective Services.

3 I have not been paid my entitlements as under Redundancy and termination as provided for by sections of the Fair Work Act 2009.

4 I was pressured to terminate my employment. Due to misleading information provided to myself by employees of the Commissioner of Corrective Services [sic]

1. It is clear from this Defence that Mr Kirkman disputes the quantum of the Commissioner's claim. Particulars of this Defence still need to be provided before trial. Moreover, some of the matters pleaded in paragraphs 3 and 4 of the Defence seem more in the nature of a cross-claim.

1. Notwithstanding these deficiencies, the general flavour of the document is clear enough. It would make a powerful argument ultimately to set aside a default judgment, once the various non-attendances were explained. But I do not decide this question. This is a matter for the Local Court. This is not a matter where the Supreme Court should interfere.

1. For those reasons I will dismiss the application. In doing so, I note Mr Darvall has said that the Commissioner will not take any objection to the bringing of a further application in the Local Court to set aside the default judgment. The fact that this matter has been appealed to this Court will not be used as an argument by the Commissioner in the Local Court against the success of any future application Mr Kirkman might bring.

1. The application is dismissed. The Commissioner seeks costs on the dismissal. I will make an order for costs against the appellant.

Decision last updated: 25 June 2013