Boscolo v Consumer, Trader and Tenancy tribunal

[2014] NSWSC 1189

Supreme Court

New South Wales

Case Title:

Boscolo v Consumer, Trader and Tenancy tribunal

Medium Neutral Citation:

[2014] NSWSC 1189

Hearing Date(s):

26/08/2014

Decision Date:

26 August 2014

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1)  Adjourn the matter for hearing before me at twelve noon Friday 29 August 2014.

(2)  Direct the Registry to advise the plaintiff of my order and to inform the plaintiff that if there is no appearance by or on her behalf at that hour in the absence of a prior application to give cause for an adjournment, I will give consideration to dismissing the proceedings on the ground of any non-appearance.
(3)  I reserve the question of the defendant's costs.

Catchwords:

Adjournment due to non-appearance

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:

File Number(s):

2013/327388

EX TEMPORE JUDGMENT

1. Ms Boscolo seeks judicial review of orders made in the Consumer, Trader & Tenancy Tribunal. Housing NSW unsuccessfully applied for summary dismissal of the proceedings before Hamill J on 23 July 2014. Housing NSW was then represented by Mr Cornish of counsel who appears today before me. Mr Cornish informs me, and I unreservedly accept, that after Hamill J had dismissed the application for summary dismissal he made certain directions as to the further conduct of the matter including listing it for hearing before the duty judge today. Unfortunately that order, although pronounced, was not recorded either in the orders appearing in his Honour's judgment, [2014] NSWSC 997, or in the associate's record of proceedings. This seems an omission by inadvertence.

2. I am satisfied that Ms Boscolo was present when the unrecorded order fixing the matter for hearing today was pronounced. There are other matters which show that the omission was the Court's.

3. Mr Cornish appeared today although the matter did not appear in the list. After he drew it to my associate's attention the file was retrieved from the registry. Moreover, he has read the affidavit of his solicitor, Nathan Cureton, affirmed on 26 August 2014 who states that he telephoned the plaintiff at 4.45 pm yesterday. I will not recount the whole of the conversation which relates substantially to an open offer made for the resolution of the proceedings. However, Mr Cureton says, and I accept, that Ms Boscolo responded as follows: "I received your documents this afternoon and have not had time to consider it. I will be faxing the Court and the fax should be on the court file tomorrow. I will not be attending as I am sick."

4. I have inspected the court file and the fax has not made its way onto it which does not mean that it was not sent.

5. I am conscious in dismissing the summary judgment application one ground that Hamill J thought was not untenable was a ground relating to the refusal by the Tribunal to grant an adjournment on 23 March 2014 in circumstances where on the day of hearing Ms Boscolo had faxed the Tribunal's Registry seeking an adjournment on the grounds of her ill health.

6. It seems to me that as there may be a possible good explanation for her non-attendance today it ill-behoves the court to dismiss the summons because of her non-attendance. In any event, such a dismissal would not finalise the proceedings and may only lead to an application to reinstate the proceedings all of which would simply add to the expense of the defendant in what seems to be, on Hamill J's assessment a very straightforward matter. I agree with his Honour about that.

7. Accordingly, it seems to me that the best thing is to adjourn the proceedings today. I am not duty judge beyond Wednesday but today notice will be given to Ms Boscolo that, and to suit the convenience of Mr Cornish, I will list the matter before me for hearing at twelve noon on Friday 29 August 2014.

8. I make the following orders:

   (1)Adjourn the matter for hearing before me at twelve noon Friday 29 August 2014.

   (2)Direct the Registry to advise the plaintiff of my order and to inform the plaintiff that if there is no appearance by or on her behalf at that hour in the absence of a prior application to give cause for an adjournment, I will give consideration to dismissing the proceedings on the ground of any non-appearance.

   (3)I reserve the question of the defendant's costs.