Gilmore v Mike Blewitt Pty Ltd

[2015] NSWCATCD 119

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gilmore v Mike Blewitt Pty Ltd [2015] NSWCATCD 119

Hearing dates:

17 August 2015

Date of orders:

17 August 2015

Decision date:

13 October 2015

Jurisdiction:

Consumer and Commercial Division

Before:

M Gilson, General Member

Decision:

1.  The application is dismissed because:

The Tribunal is of the opinion that the applicant is conducting the proceedings in such a way that unreasonable disadvantage has been caused to the respondent.

2.  The application of 14 August 2015 to adjourn the hearing of 17 August 2015, is refused.

3.  The parties to the proceedings are to pay their own costs.

Catchwords:

Causing unreasonable disadvantage

Legislation Cited:

Civil and Administrative Tribunal Act 2013, Schedule 4, clause 10 and section 60

Category:

Principal judgment

Parties:

Brett Gilmore (applicant)

File Number(s):

MV 15/27933

Publication restriction:

Unrestricted

reasons for decision

1. These reasons are provided pursuant to section 62(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) at the request of the applicant. The Tribunal gave oral reasons on 17 August 2015, however the applicant was not present at the hearing. The hearing was sound recorded, however the reasons are produced from the Member’s notes and recollections. The written reasons amplify, but do not change the oral reasons given at the hearing.

Application

2. By way of an application lodged on 16 April 2015, the applicant sought an order to fix or replace a faulty motor vehicle to the value of $35,000.00.

Representation

3. The applicant did not attend the hearing. His estranged wife was present and handed up a letter by Legal Aid dated 14 August 2015. Mrs Gilmore had no written authority to represent the applicant. The respondent was represented by Mr Bennett, and also by Ms A Sutton, a solicitor.

Proceedings

4. The parties were given an opportunity, at the initial hearing on 22 May 2015, to resolve the matter by conciliation pursuant to section 37 of the NCAT Act. The parties were unable to reach a settlement and the matter was to proceed by way of a formal hearing on 17 August 2015.

Jurisdiction

5. On or around 11 May 2012 the parties entered into a written agreement whereby the applicant purchased an Isuzu D Max utility from the respondent.

6. The Consumer Claims Act 1998 (the CC Act) relevantly defines a “consumer claim” as; A claim by a consumer for the supply of specified services, or … a claim by a consumer for the delivery, return or replacement of specified goods or goods of a specified description … that arises from a supply of goods or services by a supplier to the consumer.” The circumstances of the present case satisfy this definition of a “consumer clam.”

7. Schedule 4, Part 3 of the NCAT Act establishes that the functions of the Tribunal in relation to the CC Act are allocated to the Tribunal’s Consumer and Commercial Division. The present matter proceeded in the Motor Vehicle list of this division.

Findings and Determination

8. It is appropriate to note the background to these proceedings, which is:

• On 4 November 2014 the applicant lodged an application (MV 14/53487) with the Tribunal concerning the same transaction. The application sought an order to fix or replace a faulty motor vehicle and the applicant nominated the approximate value of this to be; “amount remaining on contract.”

• At the hearing on 5 December 2014, the parties were unable to settle the matter. Legal representation was granted to both parties and procedural directions were issued for the exchange of documents.

• At the hearing on 2 February 2015 it was apparent that there had been problems with the exchange of documents. The Tribunal put in place a process to address this. The documents the Tribunal had received from the applicant, could at best be described as disorganised and disjointed. The Tribunal issued further procedural directions for the exchange of documents and specifically required the applicant to provide; “a clear and concise statement of claim with sums sought and a copy of all further documents”. At the hearing I suggested to Mr Gilmore that he may need to seek professional assistance to organise his evidence and claim. The Tribunal formally noted that leave was granted to both parties to be legally represented.

• At the hearing on 27 March 2015 the applicant did not attend. The respondent confirmed that it had not received any further documents from the applicant since the procedural directions were issued on 2 February 2015. The Tribunal also had not received any further documents from the applicant. Due to the applicant’s failure to prosecute the matter, the application was dismissed.

• On 16 April 2015 the applicant lodged a new application (MV 15/27933) regarding the transaction. The applicant sought an order to fix or replace a faulty motor vehicle to the value of $35,000.00.

• At the hearing on 22 May 2015, the parties were unable to conciliate the matter and again the Tribunal issued procedural directions for the exchange of documents. By consent, the Tribunal granted leave to both parties to be legally represented. The Tribunal also directed the applicant to provide; “a clear concise statement of claim with sums sought on or before 5 June 2015”.

• The matter was listed for a two hour formal hearing on 17 August 2015. Since the procedural directions issued on 22 May 2015, the Tribunal had received further documents from the applicant. However it must be said that such documents do not contain a statement that is clear or concise. The applicant’s documents were still very disorganised. The Tribunal also received documents from the respondent.

9. As stated above, Kylie Gilmore, the estranged wife of the applicant, attended the hearing on 17 August 2015 and handed up a letter by Legal Aid dated 14 August 2015. The letter sought an adjournment of the hearing. Neither the Tribunal nor the respondent’s solicitor had been put on notice of the adjournment request.

10. I briefly comment on the points raised in the letter;

1. The letter reveals that aid for the applicant was yet to be determined.

2. If Mr Gilmore is unwell as suggested, no evidence of a medical nature has been provided to the Tribunal.

3. Kylie Gilmore does not appear to be a party to the contract for the purchase of the vehicle. She has no legal standing in the proceedings.

4. There is no evidence to suggest that the manufacturer should be joined as a respondent to the proceedings.

5. The Tribunal, from as early as 5 December 2014, had suggested to the applicant that he may require an expert report. Nothing has been forthcoming despite the Tribunal issuing procedural directions on three occasions.

6. There are no details of what witnesses the applicant may need to call.

11. Much of what is raised in the letter relates to procedural and evidential issues, however the letter is dated more than two months after Mr Gilmore was to provide his documents to the Tribunal and the respondent.

12. The letter does not advise me of why the applicant, or a representative of Legal Aid, is not present at the hearing.

13. The adjournment request is refused.

14. The respondent , in the documents it provided in accordance with the Tribunal procedural directions, sought an order, as one of six orders sought, that the application be dismissed or struck out as a result of the applicant causing disadvantage to the respondent.

15. Clause 10 of Schedule 4 of the NCAT Act states;

“10 (1) the Tribunal may exercise the powers conferred by this clause if the Tribunal is of the opinion that a party in any proceedings for the exercise of a Division function is conducting the proceedings in such a way that unreasonably disadvantages another party in the proceedings by any conduct (including by failing to comply with an order or direction of the Tribunal).

(2) The Tribunal may;

(a) if the party causing the disadvantage is the applicant order that the proceedings (or part of the proceedings) be dismissed or struck out.”

16. In view of the circumstances before me in this application and noting the proceedings in the preceeding application, I am of the opinion that the applicant is conducting the proceedings in such a way that the respondent is unreasonably disadvantaged. The applicant has not provided the respondent with details or documents regarding his claim which would reasonably allow the respondent to prepare a reasoned response.

17. Clause 10 (3) of Schedule 4 of the NCAT Act requires that before making an order under subclause (2) the Tribunal is to have regard to four factors. I comment on the factors as follows;

1. The present application and the previous application (MV 14/53487) have been the subject of five hearings. Also the Tribunal on a few occasions has explained the procedures of the Tribunal to Mr Gilmore.

2. The applicant appears to have the capacity to understand and act on the directions of the Tribunal. He has acted on procedural directions in a limited way. There is no medical evidence before me to cause me to question the applicant’s capacity to understand or act on directions of the Tribunal.

3. No evidence, of any formal nature has been put to the Tribunal to suggest that Mr Gilmore has a disability. Through my interaction with Mr Gilmore in hearings, no disability is apparent.

4. I cannot say whether the applicant is or is not acting deliberately in failing to comply with the Tribunal’s directions.

18. I hold that in all the circumstances, the applicant is causing unreasonable disadvantage to the respondent, and it is appropriate that the application be dismissed.

19. The respondent seeks an order for costs. I have considered section 60 of the NCAT Act, and whilst I consider the circumstances before me to be unusual, they are not of a special nature that causes me to order the applicant to pay the respondent’s costs. The parties are to pay their own costs.

M Gilson

General Member

Civil and Administrative Tribunal of New South Wales

13 October 2015

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 11 November 2015