Boscolo v Consumer, Trader and Tenancy Tribunal (2)
[2014] NSWSC 1205
•29 August 2014
Supreme Court
New South Wales
Case Title: Boscolo v Consumer, Trader and Tenancy Tribunal (2) Medium Neutral Citation: [2014] NSWSC 1205 Hearing Date(s): 29/08/2014 Decision Date: 29 August 2014 Jurisdiction: Common Law Before: Campbell J Decision: (1) I adjourn today's hearing.
(2) I fix the matter before the Common Law Case Management Registrar at 9 00am on Tuesday 9 September 2014 for referral to the Duty Judge for hearing if the Registrar is satisfied that course is then appropriate.
(3) I direct that the Registrar forward a copy of my reasons from Tuesday and today to the plaintiff.
(4) I reserve the question of the defendant's costs.Catchwords: PROCEDURE - civil - adjornment due to non-appearance by self-represented plaintiff - illness Category: Interlocutory applications Parties: Sylvia Boscolo (Plaintiff)
Consumer, Trader & Tenancy Tribunal (First Defendant)
Housing NSW (Second Defendant)Representation - Counsel: Counsel: No appearance (Plaintiff)
A Cornish (Second Defendant)- Solicitors: Solicitors:
Housing NSW Legal Services (Second Defendant)File Number(s): 2013/327388
EX TEMPORE JUDGMENT
This matter came before me on Tuesday 26 August 2014 when Mr Cornish of counsel appeared for the second defendant who is the only active defendant in the case. The proceedings are an application for judicial review of some decisions made by the then Consumer Trade and Tenancy Tribunal brought by the plaintiff, Ms Boscolo, who is self-represented.
In this court the proceedings have some history. They were commenced on 1 November 2013 and they have been before the court since then on thirteen occasions, including today. The plaintiff, I think it may be fairly said, does not seem to have prosecuted these proceedings with due despatch. Perhaps, to some extent, that is explained by the fact she is not legally represented. However as is usual in the Tribunal, she has represented herself there on more than one occasion.
Hamill J refused the defendant's application for summary dismissal on 23 July 2014 but to bring the matter to a head, with respect sensibly, he listed it for hearing before the Duty Judge on Tuesday last. I recounted the circumstances in which I adjourned the matter until today in my judgment now published as [2014] NSWSC 1189.
In a telephone conversation between Mr Cornish's instructing solicitor and Ms Boscolo on Monday, she informed Mr Cureton of her intention to apply for an adjournment on the grounds of ill-health. During the adjournment until today the Registrar has received by fax a letter from Ms Boscolo dated 25 August 2014 attaching two medical certificates. The first states:
Ms Boscola is suffering from a severe respiratory tract infection and is unfit for work from 1 August 2014 to 22 August 2014.
The second certificate certifies that Ms Boscola attended her doctor again on 25 August 2014 and the doctor certifies the following:
In my opinion she is suffering from ongoing residual symptoms... and is unfit for work from 22 August 2014 to 6 September 2014 inclusive.
On the basis of that material Ms Boscola makes an application in the following terms:
I request the court adjourn these proceedings to enable me to proceed with this matter when I am fit to do so. I sincerely apologise for any inconvenience.
A number of things perhaps should be said about this. The first is, it is my experience of life that an upper respiratory infection is unlikely to incapacitate a person from leaving home to attend court in the city by public transport and I have severe doubts whether the residual symptoms of a previous upper respiratory tract infection, even if a new one might be developing, would incapacitate a person from undertaking those simple activities. The second thing which should be said in emphatic terms is that it is simply unacceptable for self-represented litigants to communicate with the Court by letter by facsimile transmission in the expectation that a requested adjournment will be granted as a matter of course.
It may be that in the hectic list of what is now, I think, the Commercial and Consumer Division of the New South Wales Civil and Administrative Tribunal that such facilities are made available to parties for the purposes of expediting its business, and in the interests of the relative informality which may be appropriate there. But people should not expect that the Supreme Court of New South Wales will act on unverified letters of the type Ms Boscolo has forwarded in this case.
I also express my concern that it seems Ms Boscolo's current illness commenced before 8 August 2014. Indeed the first certificate bearing that date certified she was unfit for work from 1 August 2014 to 22 August 2014. A person in that position with an impending court date ought to have checked with the doctor as to her prognosis well before 25 August 2014 so that any adjourment application on the grounds of ill-health could have been notified to the defendant and to the court well in advance of the hearing date. By taking this simple step, and extending that common courtesy, the defendant may well have avoided the wasted costs of Mr Cornish appearing on Tuesday and again today.
However I feel that I need to accept the genuineness of the opinion expressed by the doctor and the sincerity of Ms Boscolo in making the application. The defendant whilst no doubt justifiably chagrined accepts that it is almost inevitable that the proceedings be adjourned today. As I said on Tuesday if I refuse the adjournment and strick out the summons because of Ms Boscolo's non-attendance it might in fact further prejudice the defendant in terms of costs because that may lead to an application to reinstate the summons and yet further delay in its determination.
Accordingly I will grant the adjournment sought. I wish to say again parties should not expect that a faxed letter attaching a medical certificate is in any way a satisfactory means of applying for an adjournment. Given the wasted costs the defendant has incurred I will fix the matter for directions before the Registrar with the intent that the matter be referred to the Duty Judge for hearing on that day subject, of course, to the pressure of other court business.
I make the following orders:
(1)I adjourn today's hearing.
(2)I fix the matter before the Common Law Case Management Registrar at 9 00am on Tuesday 9 September 2014 for referral to the Duty Judge if the Registrar is satisfied that course is then appropriate.
(3)I direct that the Registrar forward a copy of my reasons from Tuesday and today to the plaintiff.
(4)I reserve the question of the defendant's costs.
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