Callaghan v Everest Household Goods Pty Ltd
[2002] NSWSC 872
•24 September 2002
CITATION: Callaghan v Everest Household Goods Pty Ltd [2002] NSWSC 872 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): SC 30073/02 HEARING DATE(S): 24/09/02 JUDGMENT DATE: 24 September 2002 PARTIES :
Lawrence M Callaghan (Plaintiff)
Everest Household Goods Pty Ltd t/as Union Discount Stores (First Defendant)
Consumer, Trader & Tenancy Tribunal (Second Defendant)JUDGMENT OF: Dunford J
COUNSEL : SOLICITORS: Plaintiff - in person
First Defendant - Mr Gertler by leave (Director)
Second Defendant - Submitting AppearanceCATCHWORDS: PRACTICE & PROCEDURE - Appeal from Consumer, Trader and Tenancy Tribunal - No prospect of success - Summary dismissal. LEGISLATION CITED: SCR Pt 13 r 5 DECISION: Summons dismissed.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LISTDUNFORD J
Tuesday, 24 SEPTEMBER 2002
JUDGMENT30073/02 Lawrence M Callaghan v Everest Household Goods Pty Ltd t/as Union Discount Stores & anor
1 His Honour: By summons filed on 4 September 2002 the plaintiff seeks to appeal against an order made by the Consumer, Trader and Tenancy Tribunal on 12 August 2002 on the ground that such ruling was erroneous and a denial of natural justice.
2 The summons, supported by an affidavit sworn by Mr Callaghan on 4 September 2002, purports to set out the facts of the matter and references to legal principles on which Mr Callaghan seeks to rely. The summons does not contain or have served with it a statement of the grounds relied on in support of the appeal as required by SCR Pt 51A r 5. Nevertheless, it has become clear what the issues are.
3 Briefly, the facts are that Mr Callaghan bought a videocassette recorder from the defendant, Everest Household Goods Pty Ltd trading as Union Discount Stores, on 17 March 1999 for $329, and the machine was the subject of a three year warranty. A few weeks before the warranty expired it is alleged that the VCR was not working properly so the plaintiff returned it to the first defendant's premises for repair, expecting to get it back within two or three days. It was not ready for collection within two or three days and, in fact, it was six weeks before he was able to get it back purportedly repaired. After that he did not use it for some time, but when he did after a couple of uses the fault returned. So he again took it back to the first defendant's premises and asked for a refund. This, he informs me, was three weeks before the end of the warranty.
4 The first defendant refused to refund the purchase price of the machine and so the plaintiff lodged a complaint with the Consumer, Trader and Tenancy Tribunal.
5 On 12 August 2000 that Tribunal made an order as follows:
- 1. The Tribunal orders that Everest Household Goods Pty Ltd t/as Union Discount Stores on or before 31/08/02 is to repair in a proper and workmanlike manner the VCR that is the subject of this dispute and make it available for collection by the Applicant, Lawrence Callaghan. If the VCR is incapable of repair, the Respondent is to provide the Applicant with a replacement VCR of comparable quality.
2. If the fault of which the Applicant has complained reoccurs and is brought to the attention of the Respondent prior to 30 November 2002, the Respondent is to provide the Applicant with a replacement VCR of comparable quality.
3. If these orders are not satisfied, the Applicant may have this matter relisted any time prior to 31/12/02 to seek a money order for the cost of a replacement VCR.
6 It is from that order that the plaintiff appeals. He says he does not want the video cassette recorder back at this stage because he has in the meantime bought another one and, in any event, he wants $10,000 damages for pain and suffering arising from the distress he suffered during the period he was deprived of the use of his machine and for the walking and travelling involved in trying to get it repaired or to get a refund.
7 In my opinion this appeal is hopeless. The order made by the Tribunal is substantially in favour of the plaintiff. He is entitled to get the machine repaired and if the fault re-appears by 30 November this year the first defendant is to provide him with a replacement videocassette recorder of comparable quality. He clearly has no right to damages for pain and suffering in a situation such as this.
8 The appeal is doomed to failure and is, consequently, an abuse of process. Moreover, the fact cannot be ignored that the amount involved, being the current value of a video cassette recorder now three and a half years old which was originally purchased for $329, is probably about $200; and this Court should not be spending time on claims of this nature, particularly when they are doomed to failure.
9 There is also the question of justice for the other party. The first defendant has not engaged lawyers for today's proceedings, but Mr Gertler, a director, has attended accompanied by his general manager, the latter being unnecessary; but nevertheless, Mr Gertler has lost time and no doubt been put to some expense in coming here.
10 Normally these cases on appeal from the Consumer, Trader and Tenancy Tribunal are referred to a Master for hearing pursuant to SCR Sch D Pt 3 cl 5 and see Practice Note 119. However, to do that would require the first defendant’s representative to come back again which would, in my view, be unfair to that part.
11 I am satisfied that pursuant to Pt 13 r 5 or, alternatively, pursuant to the inherent power to prevent abuse of process, I have power to stay or dismiss the proceedings and I am satisfied that is the appropriate course in this case.
12 The order, accordingly, is that the summons is dismissed, no order as to costs.
13 I will return the order of 22 May 2002, the notification from the Tribunal of 15 August 2002 and the order made on 12 August 2002 will be Exhibit 1. A copy will be made of it and the original returned to the defendant.
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