Supreme Court New South Wales Medium Neutral Citation: Abela by his tutor Abela v Chevalier College [2024] NSWSC 708 Hearing dates: 3 June 2024 Date of orders: 13 June 2024 Decision date: 13 June 2024 Jurisdiction: Common Law Before: Griffiths AJ Decision: (1) Leave to appeal is granted in respect of the proposed grounds of appeal in the amended summons, apart from any ground which purports to raise complaints of waiver and/or estoppel. (2) The appeal is dismissed, with costs. Catchwords: CIVIL PROCEDURE – Claim splitting – whether the two statements of claim raise two distinct causes of action or a single cause of action that was impermissibly split contrary to s 24 of the Civil Procedure Act 2005 (NSW) – where one statement of claim claimed fees owed under contract and pleaded breach of contract and the other claim pleaded mistaken provision of financial discounts to school fees based on false and misleading information provided by the applicant and sought restitution for unjust enrichment CIVIL PROCEDURE – Setting aside of default judgments – whether inadequate service under r 10.20(2) of the Uniform Civil Procedure Rules 2005 (NSW) – where the Magistrate's finding on service was substantially based on serious adverse credibility findings in relation to the applicant – whether the Magistrate's finding was glaringly improbable or contrary to compelling inferences – whether the Magistrate erred in finding that there was no adequate explanation for the two year delay Legislation Cited: Civil Procedure Act 2005 (NSW) s 24 Local Court Act 2007 (NSW) ss 29(1)(a), 40(2)(a) Uniform Civil Procedure Rules 2005 (NSW) rr 10.20(2)(b), 13.4, 36.15, 36.16(2) Cases Cited: Abela v Chevalier College [2024] NSWSC 50 Abela v Chevalier College (No 2) [2024] NSWSC 640 Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 Dalton and Schaeffer as Executors of the Estate of the Late John Herman Schaeffer v Naegeli [2024] NSWCA 51 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 House v The King (1936) 55 CLR 499; [1936] HCA 40 Islam v Australian Real Estate Relations Pty Ltd [2023] NSWCA 131 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 Mohareb v Office of the Director of Public Prosecutions NSW [2024] NSWCA 93 Styles v Rowley [2023] NSWSC 1053 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Wealthsure Pty Ltd v Financial Ombudsman Service Ltd [2013] FCA 292 Category: Principal judgment Parties: Michael Joseph Abela by his tutor Matthew Joseph Abela (Applicant/Plaintiff) Chevalier College (Respondent/Defendant) Representation: Counsel: Z Carrigan (Applicant/Plaintiff) P Horobin (Respondent/Defendant) Solicitors: Agility Legal (Applicant/Plaintiff) Family Focus Legal (Respondent/Defendant) File Number(s): 2023/212096 Publication restriction: Nil. Decision under appeal Court or tribunal: Local Court Jurisdiction: General Division Date of Decision: 02 June 2023 Before: Magistrate Rabbidge File Number(s): 2020/295223; 2020/295234 JUDGMENT 1. HIS HONOUR: By an amended summons dated 17 May 2024, the applicant (Mr Michael Abela) by his tutor (his son, Mr Matthew Abela) seeks leave to appeal from a judgment dated 2 June 2023 in which the Local Court refused to set aside two default judgments. 2. For the following reasons, leave to appeal should be granted (save in respect of Mr Abela's complaints concerning waiver and/or estoppel), but the appeal should be dismissed, with costs. The background summarised 1. These proceedings have a protracted history which is due in no small part to the applicant's serious mental and physical health conditions, which are not disputed. These conditions prompted the appointment of the applicant's son as tutor in the course of the present proceedings. The proceedings in this Court were commenced on 29 June 2023, but they did not proceed to a final hearing until 3 June 2023 in circumstances where an earlier hearing was vacated to permit a Court-ordered mediation (which proved unsuccessful) and to allow time for Mr Abela to arrange legal representation and appoint a tutor (see Abela v Chevalier College [2024] NSWSC 50 and Abela v Chevalier College (No 2) [2024] NSWSC 640). 2. In general terms, the proceedings relate to the payment of unpaid school fees arising from the attendance of the applicant's four sons at Chevalier College in Burradoo. The youngest son continues to be educated there. The College claims that the applicant failed to declare all of his assets when he received discretionary fee discounts for the school years commencing in 2014. 3. On 14 October 2020, the College filed two separate statements of claim in the Local Court, naming Mr Abela as defendant. The first proceeding (2020/295223) claimed the amount of $49,651.23 plus interest for unpaid education services provided by the College to the applicant's sons, which amount remained unpaid (the Services Claim). In separate proceedings (2020/295234), the College claimed $79,929.95 plus interest for discounts on school fees which were extended to the applicant based on allegedly false and misleading information given by the applicant regarding his assets (the Discounts Claim). The College estimated Mr Abela's asset wealth as at April 2021 as being over $3 million. 4. The two statements of claim were served on 16 October 2020 at an address in Sedgman Avenue, Mittagong. As will emerge, one of the key issues in the Local Court which is pursued in this proceeding is whether that service complied with the relevant rules. Mr Abela claimed that he did not become aware of the proceedings or the entry of the default judgments until 14 January 2021, when he received a letter via email from the College referring to those proceedings. 5. On 27 November 2020, default judgments were entered in respect of both the Services Claim and the Discounts Claim (Default Judgments). 6. There was a delay of two years before the applicant commenced proceedings in the Local Court to have the Default Judgments set aside. 7. Magistrate Rabbidge dismissed those applications on 2 June 2023 following a hearing on 31 May 2023 (in which Mr Abela had legal representation). It is sufficient to say at this point that his Honour rejected both of the primary grounds advanced by the applicant's then legal representatives for having the Default Judgments set aside, namely (a) that the filing of the two separate proceedings amounted to an abuse of process by splitting the College's claim contrary to s 24 of the Civil Procedure Act 2005 (NSW), and (b) Mr Abela's claims regarding the inadequacy of service. 8. The Magistrate also rejected further contentions advanced by Mr Abela's then counsel that there was a bona fide defence that: (a) there was no evidence that Mr Abela executed contracts with the College in relation to each of his sons (a contention which the Magistrate described as "frankly laughable"); (b) there was an irregularity because of a failure adequately to plead fraud with reference to Mr Abela's alleged misrepresentations concerning his assets (in rejecting this proposed defence the Magistrate said that there was "overwhelming evidence of [Mr Abela's] misleading and dishonest dealings with Chevalier College"); and (c) Mr Abela's explanation for having delayed two years in seeking to have the Default Judgments set aside, which was described by the Magistrate as "unacceptable and frankly unbelievable". The Magistrate's reasons summarised 1. The Magistrate addressed Mr Abela's claim that the College had failed to serve the statements of claim on him in accordance with the rules. The service requirements for an originating process in the Local Court are set out in r 10.20(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW). In brief, they require a copy of the originating process to be either personally served on the defendant or "it may be left, addressed to the defendant, at the defendant's… residential address, with a person who is apparently of or above the age of 16 years and apparently…residing at that address". The Magistrate noted the evidence before him by a licensed process server (Ms Janine Miltenyi). She deposed that, on 16 October 2020, she served the two originating processes filed on 14 October 2020 at the Sedgman Avenue address on a person whom she identified as Mark Abela, who is one of Mr Abela's sons. Ms Miltenyi said that Mark appeared to be over the age of 16 years. After the process server told Mark that she was looking for Mr Abela, Mark said that his father was not home and he did not know when he would be home. The Magistrate observed that Mark did not say that Mr Abela did not live at the Sedgman Avenue address or that the process server had the wrong address. Rather, he said: "I don't know when he will be home". The Magistrate added that, when asked whether he could give the documents to his father, Mark acknowledged that he would. 2. The Magistrate saw it as significant that in various documents, including the acceptance of the contract for another son, Mitchell Abela, to attend the College, the postal address for Mr Abela was recorded as the Sedgman Avenue address. Other correspondence from the College to Mr Abela was posted to the Sedgman Avenue address, including letters dated 17 January 2019, 29 March 2019, 8 November 2019 and 21 April 2020. 3. Having regard to these matters, the Magistrate concluded that Mr Abela did not have an arguable defence concerning service. He also made an explicit finding that Mr Abela was aware of the College's proceedings against him and that he chose to ignore them. He added that Mr Abela did: …not accept for a moment that his son did not tell him that the documents had been served on him and did not pass those documents onto his father. It simply does not have any credibility whatsoever. Mr Abela is a man of no credibility. I don't believe him. I find numerous letters were sent to the [Sedgman Avenue] address…where his son also had been served and that was the address that he resided at. 1. The Magistrate explained why he rejected Mr Abela's claim that the proceedings involved an abuse of process because the College's claim had been split into two (which had the effect of avoiding the Local Court's jurisdictional limit of $100,000 under s 29(1)(a) of the Local Court Act 2007 (NSW)). While accepting that there were two distinct and separate claims, the Magistrate rejected the contention that this involved an abuse of process. It may fairly be said that the Magistrate did not provide detailed reasons on this matter and was generally content to refer to the Court's obligation to facilitate the just, quick and cheap resolution of the real issues in the proceedings (the provision of brief or succinct reasons does not necessarily mean that the reasons are either inadequate or cloak appellable error: see Styles v Rowley [2023] NSWSC 1053). 2. After referring to the principles stated by Hope JA in Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506-507, the Magistrate acknowledged that, in deciding whether to reopen the hearing, it was also relevant to consider whether there were bona fide grounds of defence and an adequate explanation for the default in not filing defences to the statement of claim. (It might be noted that no proposed defences were filed in the Local Court and Mr Abela's then counsel simply identified several proposed grounds relying on Mr Abela's affidavits). In response to Mr Abela's contention that the College had failed to plead contracts, which amounted to an irregularity sufficient to set aside the Default Judgments, his Honour described as "frankly laughable" that there was no contractual obligation to pay school fees. His Honour also rejected the claim that the College failed adequately to plead fraud or adequately particularise its pleaded claims that Mr Abela had provided false and misleading information, such that there was inadequate notice of the College's case. 3. The Magistrate referred to several documents including various applications for fee relief signed by Mr Abela, which failed to disclose his interest in three properties, and described them as amounting to "overwhelming evidence of his misleading and dishonest dealings with Chevalier College". 4. Against that background, the Magistrate found that what precipitated Mr Abela to take belated action to have the Default Judgments set aside after two years was the fact that he became aware of the judgment creditor's notices in December 2022. As noted above, Mr Abela's explanation for the delay was described as "unacceptable and frankly unbelievable". His Honour added: …that it is completely baseless the contention that Mr Abela was unaware of the intention of the college to commence legal proceedings against him for recovery of unpaid school fees and the recovery of financial hardship discounts inappropriately given to him. He clearly ignored the issue, as he did, I find, for the two-year delay in responding to the judgment debt, taking action only when the judgment creditor, Chevalier College, put forward notices on the 6th of December '22, which also was to the Sedgman Avenue address, served by Mark Miller, licensed process server. It was, I note, action taken by the college, the respondent, that led to Mr Abela lodging and filing the notice of motion to set aside default judgment which he filed on the 23rd of December '22. 1. The Magistrate considered that the College would suffer severe prejudice if the Default Judgments were set aside, including because it had "outlaid very significant time and expense" since January 2021. 2. Thus, Mr Abela's applications were dismissed, with costs. Amended summons 1. The following grounds of appeal are proposed in the amended summons: 1. The Court below erred in the following respects: a. Failing to determine that the causes of action disclosed in proceedings 2020/00295223 and 2020/00295234 ought to have been litigated in one proceeding. b. Failing to determine that the filing of separate proceedings, being proceedings 2020/00295223 and 2020/00295234, amounts to an abuse of process. c. Failing to determine that proceedings 2020/00295223 and 2020/00295234 were not validly served in accordance with Uniform Civil Procedure Rules 2005 (NSW) r10.20(2). d. Failing to set aside the default judgment entered in proceeding 2020/00295223 on 27 November 2020, pursuant to Uniform Civil Procedure Rules 2005 (NSW) rr 13.4(1)(c) and/or 36.15(1). e. Failing to set aside the default judgment entered in proceeding 2020/00295234 on 27 November 2020, pursuant to Uniform Civil Procedure Rules 2005 (NSW) rr 13.4(1)(c) and/or 36.15(1)2. f. Failing to give effect to the terms of section 24(1) Civil Procedure Act 2005 (NSW). g. Failing to determine that the Plaintiff in this proceeding had a reasonable defence on the merits to be tried in relation to proceedings 2020/00295223 and 2020/00295234. h. Failing to set aside the default judgment entered in proceeding 2020/00295223 on 27 November 2020, pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 36.16(2)(a) and/or (b). i. Failing to set aside the default judgment entered in proceeding 2020/00295234 on 27 November 2020, pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 36.16(2)(a) and/or (b). Consideration and determination (a) Leave to appeal 1. There was no dispute that Mr Abela required leave to appeal having regard to s 40(2)(a) of the Local Court Act. 2. Generally, leave to appeal will only be granted where the proposed appeal raises an issue of principle, a question of public importance, or seeks to address a reasonably clear injustice arising from a misapprehension of fact or law which goes beyond something that is merely arguable (see Islam v Australian Real Estate Relations Pty Ltd [2023] NSWCA 131 at [27] per Ward P and Griffiths AJA; Mohareb v Office of the Director of Public Prosecutions NSW [2024] NSWCA 93 at [17] per Ward P and Payne JA and the cases cited therein). 3. I do not consider that the proposed appeal raises an issue of principle or a question of public importance. I accept, however, that the Magistrate's decision had a determinative effect on Mr Abela's legal rights in the sense that it precluded him from challenging the merits of the College's claims and he thus has suffered some manner of injustice. With some hesitation, I am also prepared to accept that, with one exception, the proposed grounds of appeal are more than merely arguable so as to warrant a grant of leave. 4. The exception relates to Mr Abela's complaints relating to waiver and estoppel which figured prominently in the hearing before me. These complaints largely relate to representations which Mr Abela says were made to him by representatives of the College, which he claimed caused him to believe that he did not have to pay any school fees. He contends that the College waived those fees. 5. These complaints confront several difficulties. First, there is a question whether these matters were run below. In the course of the hearing of the appeal, after Mr Abela's counsel explained the waiver/estoppel complaints at some length, he said that if the two sets of proceedings were heard separately, there was a risk of inconsistent judgments if the representations were not dealt with together. There then ensued the following exchange: HIS HONOUR: Is that how the case was run before the magistrate? CARRIGAN: That's a good question, your Honour. No, no. Sorry, this is my invention. But what I will say, your Honour, is it's based on the evidence before Magistrate Rabbidge but it certainly was not argued by my former friend, Mr Foran, who appeared for Mr Abela on that occasion. HIS HONOUR: Then that's a problem, isn't it, for you? CARRIGAN: It is a problem, your Honour. The highest I can put it is it is quite clear when you read the plaintiff's affidavit evidence and if one goes through the history of what occurs between the college and the plaintiff between 2014 and 2018, it's quite clear that what the plaintiff says is in fact right. The college essentially agreed to waive the fees. … 1. Later in the hearing, counsel for Mr Abela contended that the amount the subject of the Services Claim did not accord with some of the financial documentation in evidence, nor could it be reconciled with the pleaded amounts in the Discounts Claim. At one point, counsel rhetorically asked why a particular invoice had not been claimed as part of the Services Claim. He then added that this was: …consistent with the plaintiff's evidence, the school in fact waived the responsibility to pay for it. He didn't have to pay for it. He was just encouraged to come up with $25 a week if and when he could afford it. 1. When the Court reminded counsel of his earlier concession that the point had not been run below, he responded as follows: CARRIGAN: Your Honour, the highest I can put it is that the evidence I am taking your Honour to was before his Honour. They were read, they were evidence which his Honour was obligated to consider when making his decision. HIS HONOUR: I see. So the magistrate was not entitled to direct his attention to the submissions that were put before him by your predecessor, is that the case? It is up to the magistrate to wade through all of this material and to call on the magistrate's knowledge of legal principles to fill in the gaps left by the plaintiff's legal representative at that time? They are my words, not your words, I accept that, but that's the thrust of what you are putting to me, isn't it? CARRIGAN: Your Honour, I concede it's a difficulty. I can't get around it. When I say I can't get around it, I can't get around the fact it is a difficulty. 1. On closer analysis, however, it appears that counsel's concession may have gone too far. It is evident from both Mr Abela's written outline of submissions in the Local Court at [38]-[42] and in the transcript of the hearing below that potential defences of waiver and/or estoppel were raised in support of Mr Abela's applications to have the Default Judgments set aside. The written outline referred briefly to the principles of both conventional and promissory estoppel. Passing references were also made to these matters in oral address below by Mr Abela's then counsel. It was contended in the Local Court that neither party expected Mr Abela to pay full fees based on the inquiries by the College as to his financial circumstances and that Mr Abela relied on representations made to him by College representatives to that effect. 2. In response to these matters below, the College submitted that because Mr Abela had not filed any proposed defence, the Court could not properly assess the merits of these defences or conclude that they would succeed. 3. I am prepared to accept that the potential waiver/estoppel defences were raised below as part of Mr Abela's case. They were given far less prominence than his primary complaints concerning claim-splitting and service. It is evident from the Magistrate's reasons for judgment, however, that his Honour did not regard the waiver/estoppel complaints as giving rise to a bona fide ground of defence. His Honour found that the evidence of Mr William Rowland (who was a business manager at the College), together with the documents attached to his affidavit, provided "overwhelming proof" that Mr Abela did not disclose all his property assets in the fee discount applications he signed on 7 April 2014, 13 January 2015 and 27 January 2016. Accordingly, he found that "false and misleading applications…led to the fee discount". 4. Elsewhere in his reasons, the Magistrate said that Mr Abela's claim that he was entitled to fee relief had "no merit whatsoever" in circumstances where he had failed "to reveal truthfully his assets" and failed to pay school fees. The Magistrate also found that Mr Abela had "no legitimate bona fide defence" and that he was a person who "lacks credibility". The Magistrate had earlier referred to the fact that Services Australia had taken action against Mr Abela to recover $150,000 in social security payments for failure to disclose his property interests. The Magistrate found that Mr Abela was "actively involved in dishonest applications to disguise his true assets and worth". 5. Accordingly, the Magistrate's finding that the proposed defences based on waiver and/or estoppel did not constitute a bona fide ground of defence were based in large part on his Honour's serious adverse credibility findings concerning Mr Abela, which attract the well established need for appellate restraint (see the cases referred to at [44] below). The Magistrate cannot be criticised for attaching the weight that he did to the need for finality in litigation in concluding that these proposed defences were devoid of merit. 6. In oral argument on the appeal, counsel for Mr Abela devoted some time to developing a contention that the contents of Mr Abela's various applications for fee discounts commencing in 2014 had not been filled out by him but by a representative of the College. Even if that be the case, it is difficult to see how it advances Mr Abela's case in circumstances where counsel confirmed that no issue was raised regarding the authenticity of Mr Abela's signature on each of the fee discount applications (see Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [38]). 7. I am not persuaded that any part of Mr Abela's proposed grounds of appeal which raise waiver and/or estoppel have sufficient prospects to warrant a grant of leave to appeal. 8. As to the proposed grounds of appeal relating to claim splitting, the adequacy of service, and whether there is a bona fide defence on the merits (apart from the waiver/estoppel complaints which, to the extent that they are raised in any of the proposed grounds of appeal which is far from clear, do not have sufficient prospects), although I do not view the applicant's case on any of these issues as particularly strong, I accept that in the particular circumstances there should be a grant of leave to appeal. (b) The appeal (i) Claim-splitting – grounds 1(a), (b), (d), (e) and (f) 1. The relevant legal principles are helpfully summarised by Gilmour J in Wealthsure Pty Ltd v Financial Ombudsman Service Ltd [2013] FCA 292. A declaration was sought there in the context of a contractual arrangement under which the Financial Ombudsman resolved disputes between applicants and financial services providers, such as Wealthsure. The issue was whether a particular dispute involving the parties comprised three claims, each of which had a separate compensation cap of $150,000 (as contended by the Financial Ombudsman) or whether there was but one claim with a single cap of $150,000 because otherwise impermissible claim-splitting would occur (as contended by Wealthsure). 2. Although the factual context differs from that here, the following observations and articulation of the relevant principles of Gilmour J are apposite: [25] The issue of claim splitting usually arises in inferior courts which have a monetary jurisdictional limit. Typically, legislation or rules relating to courts of limited financial jurisdiction include a prohibition on a litigant "dividing" or "splitting" a claim into two, commencing two proceedings in the one court, each for a part of the claim, and thereby avoiding the jurisdictional limit of the court. This would clearly be an abuse of process. [26] The critical question is whether, in the particular instance, a plaintiff has "divided" a single claim or cause of action. That question has been considered in a number of cases. [27] The general principles are that: (a) a plaintiff does not contravene the rule by bringing two complaints where the claims arise out of distinct and independent transactions: Sollimano v Nolan [1921] VLR 389 at 393; (b) in order to contravene the rule, the action said to be split must be "one and entire": Dealey v Clark (1831) 109 ER 936; (c) if a second cause of action can be maintained without depriving the plaintiff of his remedy in the first cause of action, the rule will not be contravened: Dealey v Clark; (d) the fact that the same causes of action could be joined in one proceeding in a superior court does not prevent the plaintiff from bringing separate proceedings in an inferior court: Wickham v Lee (1848) 12 QB 521; and (e) the issue of goods supplied and delivered on a running account is a particular rule resting on whether the parties intended that the obligation to pay the pre-existing debt is extinguished each time a new balance is struck (thus giving rise to a new and singular obligation to pay: Melville v Dartmouth Projects Pty Ltd (unreported, Supreme Court of Victoria, Byrne J, 5 December 1997); Pioneer Concrete (Vic) Pty Ltd v L Grollo & Co Pty Ltd [1973] VR 473. 1. Applying those principles here, I accept the College's contention that the Services Claim is a cause of action which depends upon the existence of the contracts between Mr Abela and the College in respect of each of his four sons and that the failure to pay the requisite fees was in breach of those contracts. Any misrepresentation by Mr Abela concerning his financial situation is not relevant to the Services Claim. 2. That is not the case when attention switches to the Discounts Claim. It is true that the formation and existence of the contracts as pleaded in the Services Claim are antecedent and/or background facts to the Discounts Claim. But the second statement of claim does not allege that Mr Abela's misrepresentations regarding his financial situation amounted to a breach of those contracts. Although there is a heading in the second statement of claim styled "Defendant's Breach" (as there is also in the first statement of claim), no breach of contract is alleged in the second statement of claim (in contrast with the pleading at [9] of the first statement of claim). Rather, the relief sought in the second statement of claim is for Mr Abela to disgorge the benefit he received from the discounts based on the false and misleading information provided by him, which induced the College mistakenly to provide him with financial hardship discounts. Thus, the relief sought is by way of restitution for unjust enrichment, as is made clear in [21] of the second statement of claim. 3. I regard the position here as distinguishable from that which arose in Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543, where Clarke JA observed at 558: The difficulty in determining whether, as in this case, the unsuccessful plaintiff is estopped from maintaining the second proceedings arises primarily from an uncertainty as to the meaning of the expression "cause of action". In Republic of India v India Steamship Co, Lord Goff (at 419) referred to the principle stated by Diplock LJ in Letang v Cooper [1965] 1 QB 232 at 243, to the effect that a cause of action consists of the minimum facts which a plaintiff is required in law to plead and (if traversed) prove in order to obtain the relief which he claims. This is a similar statement to one made by Williams J in Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 at 600. However, in Anshun, Brennan J (at 611), in referring to the imprecision in the meaning of the term, said that it is sometimes used to mean the facts which support a right to judgment, sometimes to mean a right which has been infringed, and sometimes to mean the substance of an action as distinct from its form. 1. In contrast to the factual position in Macquarie, the situation here does not involve two breaches of the same contract. Indeed, counsel for Mr Abela appropriately conceded in his outline of written submissions at [14] that "…there are characteristics of the Discounts Claim which are different from the Services Claim; namely the allegation that the Plaintiff obtained the benefit of the discounts/concessions applied through 'false and misleading and inaccurate representations' made by the Plaintiff regarding his financial position…". 2. For completeness, I consider that Mr Abela's reliance on s 24 of the Civil Procedure Act is misconceived. Mr Abela contended that this provision applied here because there was claim-splitting, such that he was entitled to a favourable judgment on either the Services Claim or Discounts Claim. I reject that contention. Section 24 applies where a single cause of action is split against another person; in such a case that other person is entitled to judgment in other proceedings with respect to the same cause of action. Section 24 has no application in the circumstances here, where there are two distinct causes of action, as reflected in the Services Claim and the Discounts Claim, as explained above. 3. For all these reasons, I reject the grounds of appeal relating to claim-splitting. (ii) Service – ground 1(c) 1. As was pointed out during the course of the hearing, Mr Abela's challenge to the Magistrate's rejection of his claim that there was inadequate service is substantially based on his Honour's serious adverse credibility findings concerning Mr Abela's evidence on this and other matters (both Mr Abela and Mr Rowland were cross-examined at some length and counsel for the College made clear that he was challenging Mr Abela's credit). The Magistrate did not accept Mr Abela's evidence that he did not reside at the Sedgman Avenue address as at 16 October 2020. Accordingly, the grounds of appeal which are directed to this matter attract the well established principles concerning the need for appellate restraint in reviewing findings of fact based on a witness's credit, reflected in cases such as Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28. Those principles were helpfully summarised as follows in Dalton and Schaeffer as Executors of the Estate of the Late John Herman Schaeffer v Naegeli [2024] NSWCA 51 per Stern JA (Ward P and Griffiths AJA agreeing) at [147]: It was common ground before this Court that the challenge to the primary judge's finding at [181] was a finding affected by impressions formed as a result of seeing and hearing Mr Naegeli give evidence. It should thus not be overturned absent a conclusion that it was "glaringly improbable" or "contrary to compelling inferences": Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [56]; Fox v Percy at [28]-[29]. 1. I reject Mr Abela's contention that the Magistrate's findings on service are glaringly improbable or contrary to compelling inferences. As the Magistrate pointed out, there were numerous documents in evidence which recorded Mr Abela's postal address as being the Sedgman Avenue address. The College's letter dated 17 January 2019 which advised Mr Abela that it had become aware that he owned "a considerable amount of real estate" and invited his response, was addressed to him at the Sedgman Avenue Address. In his affidavit dated 23 March 2023, Mr Abela acknowledged that he received the 17 January 2019 letter. 2. While it is true that the Sedgman Avenue address was not recorded as Mr Abela's residential address on the fee discount applications he signed, other evidence supported the Magistrate's finding. For example, Mr Abela told the College repeatedly that he was the full time or sole carer of his sons, was a single parent and received Centrelink payments at the rates of a single parent with sole carer responsibilities. This suggested that Mr Abela lived with his sons at the relevant time. Nor is there any error in the inferences drawn by the Magistrate from what Mr Abela's son Mark said in response to the process server's questions regarding his father's whereabouts. Instead of stating that his father did not live at the Sedgman Avenue address (as might be expected if that were in fact the case), the unchallenged evidence of the process server was that Mark said that his father was not at home and he did not know when he would return. 3. The cumulative effect of this evidence was sufficient to justify the Magistrate's findings regarding adequacy of service. 4. For all these reasons, I reject the ground of appeal relating to service of the originating processes. (iii) Defence on the merits – grounds 1(g), (h) and (i) 1. Mr Abela did not challenge the Magistrate's identification of the relevant principles in determining whether, in the exercise of discretion, the Local Court should set aside the Default Judgments. 2. Mr Abela claimed that he had bona fide prima facie defences based on waiver and/or estoppel. I have already explained why Mr Abela should not have leave to argue these particular matters (assuming that they are in fact raised by the grounds of appeal). 3. Mr Abela also contended that the Magistrate erred in concluding that no satisfactory explanation had been provided for Mr Abela's delay in seeking to have the Default Judgments set aside. In particular, he contended that because of the following matters his circumstances were exceptional: 1. he battles several serious health conditions; 2. he was the main care provider for his younger son who suffers from a serious skin condition; 3. his sister, who was helping him with his various legal disputes, died of cancer; 4. he was battling with economic disadvantage and his main priority was to care for his sons; 5. he was advised by a former legal representative not to focus on having the Default Judgments set aside while other proceedings were on foot; and 6. he was under the mistaken judgment that the direct debits set up in favour of the College were in fact resolving his dispute with the College and that no further action was required. 1. It is evident from the Magistrate's reasons for judgment that he was aware of most of these matters, including the need for Mr Abela to spend many hours each day attending to his youngest son's medical condition, but he considered that they were outweighed by other considerations, including the two year length of the delay (which the Magistrate described as "a disgrace") and the prejudice to the College occasioned by that delay, including the considerable resources it had expended in pursuing its claims. Having regard to the need for Mr Abela to identify an error of the kind in House v The King (1936) 55 CLR 499; [1936] HCA 40, the Magistrate can scarcely be criticised for not taking into account a matter which was not put before him in argument, including the effect of the unfortunate death of Mr Abela's sister. 2. In determining whether the delay had been adequately explained, what weighed particularly heavily with the Magistrate was the fact that, even if Mr Abela's claim was accepted (contrary to the adverse credibility findings) that he was unaware of the Default Judgments until 14 January 2021, he took no action for almost two years. Moreover, what prompted him to act even then was his knowledge of the creditor's notices which were served on 6 December 2022, not the information revealed in the 14 January 2021 letter. 3. His Honour described Mr Abela's explanation for his delay in taking action as "unacceptable and frankly unbelievable", which further highlights the serious adverse credibility findings relating to Mr Abela. I am not persuaded that the Magistrate's rejection of Mr Abela's explanation for the delay is glaringly improbable or contrary to compelling inferences. 4. I therefore reject these residual grounds of appeal. Conclusion 1. For all these reasons, leave to appeal should be granted in respect of the proposed grounds of appeal in the amended summons (apart from any ground which purports to raise Mr Abela's complaints of waiver and/or estoppel), but the appeal will be dismissed, with costs. 2. Finally, although it is, of course, a matter for the College to determine whether it will pursue costs against the tutor, whom it is understood is currently undertaking a University studies with a view to becoming a doctor, it is hoped that the College will show compassion and constraint. The tutor's involvement has provided significant benefits to the College by enabling the proceedings to progress to a final hearing and determination and reducing the College's legal costs. ********** Amendments 13 June 2024 - First names omitted from case name. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 June 2024