NSW Commissioner for Fair Trading v Rixon

[2015] NSWSC 956

Supreme Court

New South Wales

Medium Neutral Citation:	NSW Commissioner for Fair Trading v Rixon [2015] NSWSC 956
Hearing dates:	13 July 2015
Date of orders:	13 July 2015
Decision date:	13 July 2015
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Vacate hearing date commencing 20 July 2015. 2. Set down for hearing for 4 days commencing 1 December 2015. 3. Defendant to pay the Plaintiff’s costs thrown away by reason of vacating the hearing dates.
Catchwords:	PROCEDURE – application to vacate hearing date – contempt charges – plaintiff seeking imprisonment if charges proved – defendant self-represented with some expected assistance of counsel – defendant’s failure to serve affidavits as directed – late notification of hearing date by court – unavailability of defendant’s counsel – hearing vacated
Category:	Procedural and other rulings
Parties:	NSW Commissioner for Fair Trading (Plaintiff) Matthew Geoffrey Rixon (Defendant)
Representation:	Counsel: G Sarginson (Plaintiff) In person (Defendant)   Solicitors: Department of Finance & Services (Plaintiff) Self- represented (Defendant)
File Number(s):	2012/238762

Judgment

1. This is a Notice of Motion by the Defendant seeking to vacate a hearing date of 20 July 2015 before Garling J for the hearing of eight charges of contempt arising out of injunctive orders that had been made on 17 April 2013. The application is opposed by the Plaintiff.

2. These proceedings were commenced on 3 March 2015. The Notice of Motion and the charges, together with a number of affidavits in support, were served on the Defendant on 9 March. Those affidavits were: an affidavit of Simon Gibira sworn 2 March 2015, the homeowner of a property where work was said to have been carried out illegally by the Defendant; an affidavit of Nicholas Lloyd sworn 4 March 2015, who was someone who worked for the Defendant at Mr Gibira's property; and an affidavit of Rindert Van Der Veen sworn 2 March 2015. Mr Van Der Veen was also a person who is said to have worked for the Defendant at Mr Gibira's property.

3. The Plaintiff asserts that a further affidavit of Simon Andrew Hunter sworn 2 March 2015 was served on 9 March. That affidavit goes to an ACN and an ABN used by the Defendant in relation to a business name or similar entity called Affordable Home Services. The Defendant disputes that this affidavit was served and he says that it is not contained in the brief that has been provided to him.

4. The Plaintiff asserts that a further affidavit by an ANZ Bank officer, Natasha Sabotkovski, sworn 11 March 2015 was also served on the Defendant on 2 April. That affidavit annexes documents relating to cheques said to have been given by Mr Gibira to the Defendant. The Defendant asserts that that affidavit was not served until 19 May.

5. Two further affidavits were served by the Plaintiff on 19 May that have minimal relevance for the purposes of the present application.

6. The Plaintiff was directed by Garling J, through his associate, that if he had a Notice of Motion to vacate the hearing, then that Notice of Motion and an affidavit had to be served on the solicitor for the Plaintiff by 12 noon on Friday, 10 July 2015. The Defendant has sworn a document before a justice of the peace which is headed Affidavit but contains no substantive parts. It simply lists the proceedings and contains his name and address. The Plaintiff complains that there is no affidavit or sworn evidence to support the Notice of Motion. That complaint is entirely justified.

7. The Defendant says the basis for his application is set out in a letter said at the top to be dated 6 June 2015 but accepted by him not to have been sent until 6 July 2015. In that letter the Defendant lists some reasons why the hearing should be vacated. One of the reasons is that two witnesses from whom he wishes to obtain evidence are overseas and will not be returning until the end of July 2015.

8. The Defendant has informed me also that counsel who appeared for him in previous contempt proceedings relating to the same matter, Mr Roland Keller, is not available on 20 July.

9. The proceedings were before the registrar on 24 March. The Defendant did not appear. Directions were given for the Plaintiff to serve any further evidence by 8 April and for the Defendant to serve his evidence by 27 April. The Plaintiff informs me that the Defendant was notified of those directions by an email from the Plaintiff's solicitor to the Defendant of 2 April 2015. The Defendant denies such an email and I do not have any proof that the email has been sent. I am not thereby disbelieving what Mr Sarginson of Counsel for the Plaintiff has told me, only pointing to the lack of proof where the matter is disputed.

10. The matter came before Garling J on 30 April for directions. He directed the Plaintiff to serve all further affidavits by 14 March and he ordered the Defendant to serve affidavits in response by 26 June 2015. Although the record of proceedings says that the matter was fixed for hearing on 20 July for two to three days, both parties accept that a date for the hearing was not given on that day. In fact the hearing date was only notified to the parties on 23 June 2015.

11. It is apparent that the Defendant has not acted in an expeditious fashion, nor has he complied with directions made by the Court for the preparation of his evidence. He said that he wanted to wait until the Plaintiff served all of its evidence so he could reply in one go. However, the directions of the Court were that he was to serve his evidence by specified dates. It is perfectly clear that some of the evidence to which he now seeks to respond, by witnesses who are said to be overseas in recent times, was served as long ago as 9 March 2015.

12. I accept that there is some doubt about the evidence from the ANZ Bank officer. Mr Sarginson tells me that it was served on 2 April but the Defendant says it was not served until May. Again, I do not have proof of when that affidavit was served.

13. The Defendant could certainly have acted with more expedition as far as the bank was concerned. He has not to this point issued a subpoena either to the bank or to the bank officer from whom he seeks to lead evidence in response to Ms Sabotkovski's evidence.

14. The Plaintiff says that the Commissioner will be seeking, if the Defendant is convicted of contempt, for a custodial sentence for the Defendant. The proceedings are criminal in nature and the effect of a conviction is, in the light of the previous suspended prison sentence, likely to involve a custodial sentence. In those circumstances, although I do not consider that the Defendant has acted with due expedition, nor in compliance with court orders, he ought to be given the opportunity to put himself in the position where he can properly defend the contempt proceedings, as he seeks to do, by the calling of evidence.

15. I also have regard to the fact that his counsel is unavailable for the hearing of the matter on 20 July. The Plaintiff’s problem about legal representation has partly been brought about by the Court’s late notification of a hearing date. The Plaintiff should not be forced into the position of having to defend contempt charges carrying the risk of imprisonment if proved without legal representation.

16. It is very unfortunate that this application has been made at such a late stage. The Defendant's explanations for that are unsatisfactory, but it seems that he sought the consent of the Plaintiff's solicitor to vacate the proceedings but, for one reason or another, did not receive a response to that request at an earlier time than the filing of his motion. The correspondence shows that immediately on being advised of the hearing date the Plaintiff indicated an intention to apply to vacate that date.

17. For those reasons, I will vacate the hearing listed before Garling J on 20 July. The parties are directed to obtain from the Listing Manager dates later in the year for a hearing that will take four days. Subsequent to the delivery of these reasons I directed that the matter be listed for hearing on 1 December 2015 for four days being dates suitable to the parties including the Plaintiff’s counsel.

18. The Defendant is to pay costs thrown away by reason of vacating the hearing date.

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Decision last updated: 16 July 2015