NSW Commissioner for Fair Trading v Rixon (No. 2)

[2015] NSWSC 1600

Supreme Court

New South Wales

Medium Neutral Citation:	NSW Commissioner for Fair Trading v Rixon (No. 2) [2015] NSWSC 1600
Hearing dates:	29 October 2015
Date of orders:	29 October 2015
Decision date:	29 October 2015
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Hearing dates commencing 1 December 2015 is vacated. 2. Listed for Directions before Justice Davies at 9:30am on 1 December 2015 3. Liberty to apply on 2 days’ notice.
Catchwords:	PROCEDURE – application to vacate hearing – proceedings for contempt – defendant incarcerated in Queensland since directions made and hearing date appointed – defendant self-represented with some legal assistance - inability of defendant to prepare his case – hearing vacated
Category:	Procedural and other rulings
Parties:	NSW Commissioner for Fair Trading (Plaintiff) Matthew Geoffrey Rixon (Defendant)
Representation:	Counsel: G Sarginson (Plaintiff) No appearance (Defendant)   Solicitors: Department of Finance & Services (Plaintiff) Self- represented (Defendant)
File Number(s):	2012/238762

Judgment

1. Part of the history of this matter was set out in my judgment of 13 July 2015: NSW Commissioner for Fair trading v Rixon [2015] NSWSC 956. On that day I granted the Defendant's notice of motion to vacate the hearing date fixed for 20 July. I set the matter down for hearing for four days commencing 1 December 2015 and made directions for the service of evidence by the Defendant and thereafter the Plaintiff in reply. The matter was listed for directions before me on the last day on which those directions were to be complied with, that is, 18 September 2015. On that day there was no appearance for the Defendant and the hearing date was confirmed.

2. Some little time ago my Associate received a letter from the Defendant dated 15 October 2015 in which he informed me that he was currently remanded in custody in Queensland in respect of charges and that he had been arrested on 27 July 2015. He said that, due to being held in custody, he had not been able to forward his defence by 28 August. I interpolate that the direction was in fact that he serve evidence by that date. The letter went on to say that his incarceration had led to an inability to seek counsel and give instructions in the matter.

3. The Defendant had previously advised me that Mr Keller of counsel had from time to time assisted him and he expected Mr Keller to be able to do that in respect of the hearing on 1 December. In the letter he asked that the hearing be vacated and that the matter be listed for mention on 1 February 2016 to be given a hearing date upon his release from prison.

4. As a result of the letter I had the matter listed. Mr Sarginson has again appeared this morning and has informed me that inquiries were made by his instructing solicitors who ascertained that the Defendant had been arrested and charged with a number of offences in Queensland including stalk and intimidate and also fraud offences.

5. He is due to appear before the Brisbane Magistrates Court on 11 November. However, the precise purpose of that appearance is not known. There is a possibility that a bail application will be made.

6. The Plaintiff does not consent to the hearing being vacated again but Mr Sarginson frankly, and I may say sensibly, said that there was little he could say against the Defendant’s application.

7. It does not seem reasonable in the circumstances to maintain the present hearing date of 1 December. The proceedings are quasi criminal in nature and the Defendant must have the ability to appear and the opportunity to put forward evidence to defend the charges that are made against him. Whilst it is regrettable that the hearing of this matter must again be vacated I do not see any alternative in the circumstances. At least on the face of the Defendant’s letter his inability to advance his defence of the case has been hampered by his incarceration.

8. In those circumstances the hearing on 1 December 2015 is vacated. The matter will, however, be listed on that day before me for further directions. It is my intention to have my Associate write to the Defendant to inform him of what has happened and to require him to notify my Associate after 11 November informing her of what transpires at the appearance in the Magistrates Court including where he will thereafter be located for the purpose of being contacted.

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Decision last updated: 30 October 2015