Isaac Fam - Afraem Abdel-Malek t/as Subguru v Justin Mark Congahan
[2015] NSWCATCD 82
•21 July 2015
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Isaac Fam – Afraem Abdel-Malek t/as Subguru v Justin Mark Congahan [2015] NSWCATCD 82 Decision date: 21 July 2015 Jurisdiction: Consumer and Commercial Division Before: S Westgarth, Deputy President Decision: Application Dismissed
Legislation Cited: Civil and Administrative Tribunal Regulation 2013 Category: Principal judgment Parties: Isaac Fam – Afraem Abdel-Malek (applicant)
Justin Mark Conaghan (respondent)File Number(s): MV 15/38281 Publication restriction: Nil
reasons FOR DECISION
Background
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The applicant applies to have an order made 9 June 2015 made in the Consumer and Commercial Division of the Tribunal set aside. The application was received by the Tribunal on 15 June 2015.
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The order which the applicant seeks to have set aside is an order which requires the applicant and another person to pay the sum of $6,229.10 to the respondent to this application. That respondent was the applicant in the proceedings which resulted in the order of 9 June 2015. That application was brought against Afraem Abdel-Malek and Isaac Fam t/as Subguru. There was no appearance at the hearing on 9 June 2015 on behalf of the respondents to that application.
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The basis for the application to set aside the order of 9 June 2015 is that the applicant says that he was unfit to attend at the Tribunal due to “severe kidney pains”. In support of his medical condition he has supplied a photocopy document issued by Bankstown Lidcombe Hospital headed “ED Discharge Referral”. That document records that the applicant attended the hospital on 25 May 2015 and was discharged that day. The applicant has also supplied a medical certificate from Dr D Saad. The particular certificate is a photocopy only, dated 9 June 2015 which records that the applicant has a history of “renal stones and was suffering from renal colic on the 9 June 2015”. The certificate goes on to say that he was “unfit for any form of work from 9 May 2015 to 10 May 2015 inclusive”. The certificate is a photocopy only and does not appear to have been signed. On its face it records that the applicant was unfit until 10 May 2015 which is approximately one month prior to the hearing. Even if there is a typographical error in the medical certificate and that the reference to May should have been a reference to June, the certificate raises some questions. These questions are: why has a photocopy only been supplied, why is it unsigned and does the Doctor take the view that the applicant was unfit to attend the Tribunal as opposed to being unfit for his normal work activity?
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The application to set aside does not appear to give any reason why the applicant could not have been represented at the hearing by the other respondent (Afraem Abdel-Malek) or by any other person on behalf of the business they jointly conducted.
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The hearing on 9 June 2015 was preceded by directions issued by the Tribunal for both parties to exchange evidence. The applicant to those proceedings filed his evidence but the respondent (namely the applicant in this set aside application) did not. There does not appear to be any reason why the applicant did not comply with those directions.
Decision
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This application is brought under regulation 9 of the Civil and Administrative Tribunal Regulation2013. That regulation gives a power to the Tribunal to set aside a previous order if a decision was made in the absence of a party and the Tribunal is satisfied that the party’s absence had resulted in the party’s case not being adequately put to the Tribunal.
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In this case, the applicant was absent from the hearing but it is not clear that the absence of the party would have resulted in the party’s case not being adequately put. Had the applicant been present at the hearing in circumstances where the applicant had not filed and served any evidence beforehand, it is very likely that the same result would have occurred namely that the orders against the applicant and the other respondent would have been made.
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In addition, even if the Tribunal were satisfied that as a result of a party’s absence at the hearing the party’s absence has resulted in the party’s case not being adequately put, the position under regulation 9 is that the Tribunal still has a discretion as to whether it should set aside or vary the earlier order. In this case, the Tribunal declines to exercise the discretion. The basis for this decision is that the Tribunal is not satisfied that the applicant’s absence at the hearing was due to ill health. The medical evidence is not persuasive. It says the applicant was unfit in May and not as at 9 June 2015. Even if it is accepted that it should have said that the applicant was unfit as at 9 June 2015, there is no clear opinion from the Doctor that the applicant could not have attended the hearing. In addition, there was no evidence that someone else could not have attended.
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For the above reasons this application is refused.
S Westgarth
Deputy President
Civil and Administrative Tribunal of New South Wales
21 July 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: 04 September 2015
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