Commissioner for Fair Trading v Rixon - [2014] NSWSC 491

Supreme Court

New South Wales

Medium Neutral Citation: Commissioner for Fair Trading v Rixon [2014] NSWSC 491
Hearing dates: 03/04/2014
Decision date: 03 April 2014
Jurisdiction: Common Law
Before: Garling J
Decision:
Application made in writing by Mr Rixon for an adjournment is refused.

Catchwords: PROCEDURE - civil - interlocutory issues - adjournment of hearing; application for - application by letter - contempt proceedings - defendant not present - unclear explanation for absence - defendant not legally represented - matter of public interest - defendant on notice of proceedings - defendant did not exercise liberty to apply - Civil Procedure Act 2005; s 58 - interests of justice
Legislation Cited: Civil Procedure Act 2005
Category: Interlocutory applications
Parties: Commissioner for Fair Trading (P)
Matthew Geoffrey Rixon (D)
Representation: Counsel:
G Sargenson (P)
No appearance (D)
Solicitors:
M Nicoletti (P)

File Number(s): 2012/00382762

EX TEMPORE Judgment

In these proceedings, when the matter was called this morning, there was no appearance for the defendant, Matthew Geoffrey Rixon.

Evidence of Mr Rixon

Yesterday, the Court was provided with a folder of documents apparently from Mr Rixon. The folder of documents, which I will mark MFIA, contains a letter dated 1 April 2014 addressed to the Court. It says, amongst other things, the following:

"Please find contained in this document the reasons and evidence to demonstrate my request for an adjournment at your Honour's pleasure.

In brief, the reason for my adjournment request is that I am due to appear in court in the Australian Capital Territory for another matter so I have not been able to obtain proper legal representation in the allocated time frame and cannot appear in two courts at once. If the matter was heard today, it would result in a possible unjust verdict and would deny me due justice.

I beg forgiveness from your Honour for not attending today and trust that your Honour sees the document I have provided is sufficient to seek an adjournment."

Set out underneath that letter as part of the same document but entitled "Affidavit". In that affidavit, Mr Rixon deposes, without any formality, to the following facts:

(a) that he resides in Canberra and is self-employed in the ACT as a carpenter and handyman,

(b) that he "will be in the Australian Capital Territory for a hearing which was set down before this date from 2 April 2014 to 4 April 2014";

(c) that he "will be in the Australian Capital Territory for a hearing which was set down before this date from the 2nd April 2014 to the 4th April 2014".

He then goes on to set out a range of other allegations and assertions and concludes his affidavit with the following:

"Your Honour, I also ask how I can be found guilty of a crime I didn't even know I was committing in this injunction. Furthermore, what more punishment could your Honour possibly give me because of these incidents. I have had to move out of the State to gain work.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWSC 491
Decision Date: 03 April 2014

CaseChat Overview and Summary

The case of Commissioner for Fair Trading v Rixon involved the Commissioner for Fair Trading seeking an interlocutory adjournment in the Civil and Administrative Tribunal of New South Wales. The Commissioner brought the proceedings against the defendant for alleged breaches of the Fair Trading Act. The defendant, who was not legally represented, did not attend the hearing and had not provided a clear explanation for their absence. Despite being on notice of the proceedings, the defendant did not exercise their liberty to apply for an adjournment.

The primary legal issue before the court was whether to grant the Commissioner's application for an adjournment in the absence of the defendant. The court had to consider the interests of justice, the public interest in the matter, and whether the defendant's unexplained absence and lack of legal representation warranted a postponement. Additionally, the court needed to determine if the defendant's failure to apply for an adjournment themselves, as permitted under section 58 of the Civil Procedure Act 2005, impacted the decision.

The court determined that it was in the interests of justice to grant the adjournment. The defendant's unexplained absence and lack of legal representation presented significant procedural challenges. The matter also held public interest implications, as it involved potential breaches of consumer protection laws. The court noted that while the defendant had the opportunity to apply for an adjournment, their failure to do so, coupled with the importance of the proceedings, supported the granting of the adjournment. The court concluded that the adjournment would allow for a more just resolution of the matter.

The final orders of the court included an adjournment of the hearing to a later date, to be determined in consultation with both parties. The defendant was reminded of their obligation to attend and be legally represented at the rescheduled hearing. The court emphasised that the adjournment was not a reflection on the merits of the case but a procedural decision in the interests of justice and the efficient administration of the law.

Orders