Shirley Ford v Conrad Meder t/as Brian's Autoscreens & Glass
[2014] NSWCATCD 156
•21 August 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Shirley Ford v Conrad Meder t/as Brian's Autoscreens & Glass [2014] NSWCATCD 156 Hearing dates: 8 July 2014 Decision date: 21 August 2014 Before: J Lennard, General Member Decision: 1The application is dismissed.
Catchwords: APPLICANT - failure to attend hearing - tribunal satisfied that notice of hearing was served on the applicant - failure by applicant to explain non-attendance - procedural fairness - application of guiding principle by tribunal Legislation Cited: Civil and Administrative Act 2013 (NSW) s 36, s 55 Category: Principal judgment Parties: Shirley Ford (applicant)
Conrad Meder t/as Brian's Autoscreens & Glass (respondent)File Number(s): GEN 14/28292 Publication restriction: Unrestricted
reasons for decision
APPLICATION
On 30 May 2014 the applicant made an application to the Tribunal seeking the following orders:
(1) an order that she does not have to pay the amount of $2011;
(2) an order to fix or replace faulty goods or to deliver or to return goods to the value of $2011;
(3) an order to remove magnets and make the screens safe.
The application stated that Brian's Autoscreens & Glass had installed 2 shower screens in the premises of the applicant on 30 July 2013. The applicant was not satisfied with these screens and stated in her application that they were 'hard to open after a shower and bang shut'. The applicant indicates that she has complained to the respondent and has not received a satisfactory response; that she has lodged a complaint with Fair Trading and was unable to achieve a settlement of the dispute. The application further indicates that the applicant is in dispute with several other trades people and is contemplating an action for defamation in relation to that dispute. The applicant also complained that the respondent has not provided an invoice showing his ABN or GST in relation to the purchase of the screens.
In correspondence with the Tribunal the respondent indicated that he had commenced action in the Local Court in relation to failure by the applicant to pay the invoice for the supply and installation of the shower screens.
THE HEARING
There was no appearance at the hearing by the applicant, Shirley Ford.
The respondent appeared: Mr Conrad Meder was present and informed the Tribunal that he had purchased the business of Brian's Autoscreens & Glass from Brian and Penny Carter. Mrs Penny Carter was also present at the hearing and she confirmed that the business had been sold to Mr Meder and that as part of that contract of sale that Mr Meder had taken on the liabilities and debtors of the business.
JURISDICTION
Pursuant to section 7 of the Consumer Claims Act 1998 (NSW) the Tribunal has jurisdiction to hear and determine any consumer claim brought before it. The applicant brings her claim pursuant to the Consumer Claims Act.
Section 55 of the Civil and Administrative Tribunal Act 2013 provides that the Tribunal may dismiss at any stage any proceedings before it if the applicant has failed to appear in the proceedings.
ISSUES
Whenever one party fails to appear for a hearing of a matter, the Tribunal must decide whether to dismiss the application, adjourn the hearing or proceed in the absence of one party.
The Tribunal must examine the information before it to determine the following matters:
(1) that the absent party had notice of the hearing and was provided with a reasonable opportunity to attend;
(2) whether proceeding to dismiss the application, in all the circumstances accords with the interests of justice - including the requirements of procedural fairness.
EVIDENCE
The Tribunal file contained the following information:
(1) A copy of the notice of hearing sent to the applicant, dated 2 June 2014 and informing the applicant that the matter was set down for hearing at 11:30 am on 8 July 2014 at Goulburn Court House;
(2) Copies of file notes of phone conversations between Registry staff and the applicant in relation to her request for an adjournment. It is evident from these file notes that the applicant was advised that she needed to make a written application for an adjournment and to provide evidence to substantiate the reason for the request for adjournment.
(3) A copy of a written application for an adjournment of the hearing;
(4) A copy of the decision of Member Correy refusing the request for an adjournment of the hearing listed for 8 July 2014. The reasons for this refusal were as follows: it is not appropriate to adjourn a matter of this nature without some corroboration of the facts asserted by the applicant for the adjournment. The respondent is objecting to this application because there are already Local Court proceedings on foot. It seems there will be prejudice to the respondent by any adjournment. If the applicant's assertions are true to medical issues preventing her and/or her husband from attending Goulburn on 8 July 2014, this could be overcome by applying for a telephone hearing. The Tribunal notes that the applicant made no application for a telephone hearing and has not provided any evidence to support her assertion that she is unable to drive. The applicant has provided no evidence in relation to the total lack of appropriate transport from her residence to Goulburn Local Court.
(5) Correspondence from the applicant and her husband Mr Colin Ford disputing the decision of the Tribunal to refuse the adjournment. This correspondence is argumentative and accuses the Tribunal of unreasonableness and rudeness.
(6) An unsigned letter from National Capital Private Hospital stating that Mr Colin Ford is hospitalised.
(7) A copy of a declaration to the Commissioner of Taxation in relation to a request that a car be supplied free of GST to Mr Colin Ford.
A member of the Registry staff at Goulburn Local Court provided to the Tribunal a statement relating to a telephone call from the applicant received prior to 11:30 am on the morning of 8 July 2014. The statement is as follows: Registry staff have received a telephone call from Mrs Shirley Ford, who was quite irate that her request for Adjournment had been denied. Mrs Ford knew that she had to attend this morning and because of broken elbow she could not drive. Mrs Ford stated that she has contacted NCAT Supervisor in Wollongong and he could not help her to get an adjournment.
The respondent provided to the Tribunal a folder of evidence which included a copy of the response by Mrs Shirley Ford to the application made to Goulburn Local Court to his statement of claim. This indicates to the Tribunal that the applicant in this matter has had an opportunity to consider the issues between the parties and would not have been disadvantaged by conducting this matter as a phone hearing.
SUBMISSIONS
The respondent gave evidence that he would be significantly disadvantaged by an adjournment of this matter. He indicated that the Local Court proceedings were likely to be delayed if the Tribunal hearing was adjourned. The pre-trial review had already been vacated once in the matter was now listed for 7 August 2014.
The respondent also informed the Tribunal that he had already lost one day of work and given that this is a no cost Tribunal would be unable to recover that loss. The respondent submitted that he would suffer further loss of work if required to attend an adjourned hearing.
The respondent made an oral submission that the applicant had filed the NCAT application only after she had received notice of his claim in the local court; that the filing of the NCAT claim was designed to delay and frustrate his application to the Local Court; and that the conduct of the applicant in seeking an adjournment of this matter was further designed to delay a resolution of the issues between the parties.
The respondent stated that the applicant was difficult to deal with and that she had made many complaints about tradesmen in relation to the work on her residence in order to avoid payment for work done.
APPLICATION OF CURRENT LAW
Section 36 of the Civil and Administrative Tribunal Act sets out the guiding principle to be applied to the practice and procedure of the tribunal. The guiding principle is to facilitate just, quick and cheap resolution of the real issues in the proceedings. The section also provides that parties to proceedings are under a duty to cooperate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the proceedings and to comply with the directions and orders of the Tribunal.
The Tribunal is satisfied that the applicant was properly served with notice of this hearing and that she knew not only that the matter was proceeding but that she was required to attend.
The Tribunal notes that the applicant was aware of the issues between the parties and that she would not have been disadvantaged had the matter being conducted by phone. The Tribunal further notes that the applicant was advised of the possibility of a phone hearing but made no application for a phone hearing.
The Tribunal is satisfied that the applicant was afforded procedural fairness in that she was provided with an opportunity to attend the hearing and have the matter dealt with and that she was informed by the Tribunal of the consequences of failure to attend. The applicant indicated to the local court staff on the morning of the hearing that she knew she was required to attend, but was not going to do so.
The Tribunal notes that the applicant failed to provide any evidence to support her assertion that she was unwell, that she could not drive and that there were no alternative means of transport from her residence to the Goulburn courthouse.
The applicant has failed to cooperate with the Tribunal and has been argumentative and abusive in her correspondence with the Tribunal staff.
The Tribunal also notes that the applicant made this application after the respondent had filed a statement of claim in the Local Court and some 10 months after the installation of the shower screens.
The respondent appeared at the hearing and was prepared for the hearing with folder of evidence and witnesses. The respondent would be severely disadvantaged if he was required to attend again at a later date, the Local Court action may be further delayed and he would incur further costs.
CONCLUSION
The applicant has failed to attend the hearing and has not provided a reasonable explanation for that failure to attend. The Tribunal pursuant to section 55 of the Civil and Administrative Tribunal Act exercises its discretion to dismiss the application.
J Lennard
General Member
Civil and Administrative Tribunal of New South Wales
21 August 2014
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: 14 October 2014
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