Sydney Motor Market v Hytech Plastics

[2004] NSWSC 762

CITATION:	Sydney Motor Market v Hytech Plastics [2004] NSWSC 762
HEARING DATE(S):	19 August 2004
JUDGMENT DATE:	2 September 2004
JURISDICTION:	Common Law Administrative Law List
JUDGMENT OF:	Master Malpass at 1
DECISION:	The summons is dismissed; the plaintiff is to pay the costs of the proceedings; the exhibit may be returned.
CATCHWORDS:	Appeal from Tribunal - claim dismissed for want of prosecution - non-appearance by plaintiff - denial of procedural fairness and error concerning a question with respect to a matter of law.
LEGISLATION CITED:	Consumer Trader & Tenancy Act 2001, s65
PARTIES :	Sydney Motor Market Pty Limited Pty Limited (Plaintiff) Hytech Plastics Pty Limited t/as Abacus Shade Structures (First defendant) Consumer Trader & Tenancy Tribunal (Second defendant)
FILE NUMBER(S):	SC 30015/04
COUNSEL:	Mr G Kinsey (Solicitor) (Plaintiff) Mr G Willis (Solicitor) (First Defendant)
SOLICITORS:	G A Kinsey (Plaintiff) Burston, Cole & Co (First Defendant)

LOWER COURTJURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	03/31541
LOWER COURT JUDICIAL OFFICER :	Member G O'Keeffe

- 9 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Master Malpass

Thursday 2 September 2004

30015 of 2004 Sydney Motor Market Pty Limited v Hytech Plastics Pty Limited t/as Abacus Shade Structures & Anor

JUDGMENT

1 Master: The plaintiff is a vendor of motor vehicles. Mr Assafiri is its sole director. The plaintiff engaged the first defendant to install a hail net at its car yard in Cabramatta. Mr Moonen is a director of the first defendant.

2 Following the installation of the net, disputes arose between the parties. This led to the plaintiff bringing an application in the Consumer Trader & Tenancy Tribunal (the Tribunal). A claim for damages was propounded. Generally speaking, the claim was for repair costs. It was pressed to the jurisdictional limit of the Tribunal ($25,000).

3 Messrs Assafiri and Moonen appeared before the Tribunal on behalf of the respective parties. On 4 September 2003, the Tribunal gave directions. The Tribunal fixed a hearing date (7 October 2003).

4 There was non-compliance with the directions by the plaintiff. Documents which should have been served on or before 11 September 2003 were first produced on the hearing date.

5 On 7 October 2003, the defendant was given the opportunity to adjourn the proceedings because of the non-compliance. It elected to proceed and a hearing took place (in the order of five hours).

6 At the conclusion of the evidence taken on that day, the Tribunal member indicated that he wanted further material “about the sails”. Further directions were given and the proceedings were adjourned part heard.

7 The directions included the following:-

1. The parties have leave to file and serve further evidence of an expert nature with respect to: a) whether any inherent fault exists in the design or construction of the sails; b) whether the sails were properly secured; c) the cost of replacing each of the two southern sections of sail (marked on the Hall plan as sections (1) & (2); and d) whether the remaining sails can be repaired and if so, at what costs and if not, what is the cost of their replacement, by 4 November 2003 ;
2. The applicant is to facilitate access to the relevant premises for the purpose of any expert inspection;
3. The parties experts shall consult each in an attempt to narrow the points of difference between them and identify the remaining points of difference and shall file with the Tribunal, a copy of a document setting out all points upon which they agree and all remaining points of difference, by 18 November 2003 …

The proceedings were set down for further hearing on 27 November 2003.

8 Late on 26 November 2003, a facsimile was transmitted to the Tribunal. It purported to be signed by Mr Wehbee (the sales manager for the plaintiff). It is in the following terms:-

Sam Assafiri from Sydney Motor Market is unable to attend to attend the tribunal hearing in relation to the above mentioned matter due to a medical condition namely asthma attack.
Mr Assafiri will be attending his doctor for this illness and a medical certificate will be forwarded to your office either this evening or tomorrow. He is unable to attend the tribunal on Thursday 27th of November 2003.
Would it be up to our office to inform the respondent of our unavailability to attend. Could you please call and confirm the change.

9 Subsequently, Mr Wehbee made contact with the Tribunal by telephone. He was advised to make contact with the first defendant and make any arrangements for adjournment with it.

10 Thereafter, a telephone conversation took place between Messrs Wehbee and Moonen. What was said between them is a matter of substantial dispute. The version propounded by the plaintiff is to be found in the affidavit sworn by Mr Wehbee. The version propounded by the first defendant is to be found in an affidavit sworn by Mr Moonen.

11 It is contended by the plaintiff that inter alia Mr Moonen agreed to the adjournment and said that he would attend the Tribunal on the following day and inform it of his agreement to that adjournment. This contention is hotly disputed.

12 The plaintiff also sent to the Tribunal a medical certificate. It is an annexure to an affidavit sworn by Mr Assafiri. It is in the briefest of terms and substantially incomprehensible. It informs inter alia that Mr Assafiri was unfit for duty up to and including 28 November 2003.

13 On 27 November 2003, there was no appearance on behalf of the plaintiff. Mr Moonen appeared once again on behalf of the first defendant. The hearing proceeded. The plaintiff’s application was dismissed. The Tribunal gave written reasons as follows:-

When at 9.15am today the matter was listed for further hearing, the Applicant did not attend. A letter dated 26 November 2003 on the Applicant’s letterhead and signed by Louis Wehbee, Sales Manager, explained that Mr Assafiri (director of the Applicant company) was unavailable due to illness. A doctor’s certificate attached to the letter stated the [sic] Mr Assafiri was unfit for duty until and including the 28 November 2003. No explanation was given as to why another person in the company’s employ could not attend.
A perusal of the file and evidence taken from Mr Eric Moonen, (director of the Respondent company) revealed that the Applicant had failed to comply with directions given on 7 October 2003. That is, the Applicant did not file and serve any documents in accordance with direction 1; did not avail himself of the opportunity to attend the relevant premises in order to carry out any expert inspection of the sails in accordance with direction 2; and did not arrange an experts consultation in accordance with direction 3. By contrast, the Respondent attended and inspected the sails and filed and served an expert report. Mr Moonen gave evidence that the Applicant did not contact him in any respect.
The Tribunal finds therefor that the Applicant has failed to diligently prosecute the application, and accordingly the matter ought to be dismissed.

Largely, what happened before the Tribunal on that day has to be gleaned from the reasons. The court has been told that no transcript is available.

14 On 11 December 2003, the plaintiff made an application for rehearing. On 29 December 2003, the first defendant made submissions in the application. On 31 December 2003, the application for rehearing was not granted.

15 On 6 February 2004, the plaintiff commenced proceedings in this court, purporting to bring an appeal against the decisions made on 27 November 2003 and 31 December 2003.

16 It seems probably that both appeals were brought out of time. The first defendant did not oppose an extension of time and an order extending time was made by consent. The hearing took place on 19 August 2004. An amended summons was filed in court on that day.

17 The grounds of appeal presently relied on are 16 in number. The grounds contain reference to inter alia denial of natural justice and error of law. There are grounds which refer to matters which on their face could not be the subject of any challenge in this court.

18 I do not propose to address each ground individually. It suffices to make express reference to those which were argued in either written submissions or orally.

19 Section 65(3)(b) of the Consumer Trader & Tenancy Act 2001 (the Act) enables relief to be granted where a party has been denied procedural fairness. Section 57(1) enables a challenge where the Tribunal decides a question with respect to a matter of law.

20 I shall first deal with the challenge made to the decision on the question of the rehearing. It is said that the Tribunal allowed the first defendant more than the prescribed time in which to make submissions and that the submissions were in fact made outside the time allowed. It is said that the Tribunal erred in having regard to the submissions in reaching its decision. This was presented as being an error of law.

21 In my view, these submissions are of no assistance to the plaintiff. The Tribunal is empowered to extend time and to dispense with compliance with requirements. Furthermore, such a challenge is not open pursuant to s67(1). It may be of assistance if I add that I am not satisfied that the Tribunal erred in not granting the rehearing.

22 I now turn to the decision made on 27 November 2003. It is attacked on a number of grounds, many of which do not fall within the scope of ss65 and 67.

23 Generally speaking, the principal thrust of the attack is that there was a denial of procedural fairness by reason of what is said to be a refusal to grant an adjournment. There are grounds which suggest that there is complaint as to the exercise of the discretionary power to dismiss the application for want of prosecution.

24 In my view, it is erroneous to contend that an adjournment application was made and rejected by the Tribunal. No such application was made to it and it did not purport to deal with any matter of adjournment.

25 Notices from the Tribunal clearly advise parties that a consequence of non-attendance may see it proceed with a hearing in the absence of a party. The plaintiff was aware of the hearing date. It had the opportunity to appear, make an adjournment application, and/or present its case. If Mr Assafiri was unable to appear on that day, he could have arranged for other representation (including Mr Wehbee). In making no appearance on the hearing day, the plaintiff took the risk of the matter proceeding in its absence.

26 The court has been asked to make a ruling on the competing versions given as to the conversation had on the day before the hearing. The court has not seen the witnesses. It has not seen the respective versions tested by cross-examination. In my view, it is not in a position to make any ruling on the matter. The best it can do is say that it does not prefer what is said by Mr Wehbee to that which is said by Mr Moonen.

27 In my view, that matter can be put aside. The version offered by Mr Wehbee was not put before the Tribunal. This happened because the plaintiff did not appear on 27 November 2003. The Tribunal was left to deal with the plaintiff’s application in the absence of the plaintiff and on the material that it had before it.

28 It has been asserted that Mr Moonen misled the Tribunal. I am not satisfied that this was the case. I do not consider that any such conclusion could be drawn from the limited material before the court. Even if a different view were to be taken on that matter, I am not satisfied that it would assist the plaintiff in its challenge.

29 It is said inter alia that the Tribunal failed to take into account the evidence that had been adduced before it previously. I do not accept that submission. It ignores the purpose intended to be served by the directions.

30 In my view, the Tribunal had this evidence in mind when it addressed the matter of non-compliance with the directions. These were directions which would appear to have bee given because of perceived deficiencies in that evidence. The directions contemplated material of “an expert nature”. A the time when they were given, the plaintiff had not adduced any evidence of such nature.

31 It was said that there was error on the part of the Tribunal in concluding that the plaintiff had failed to comply with directions given on 7 October 2003.

32 The reasons show that the Tribunal perused the file and took evidence from Mr Moonen. What that evidence was is not known to this court. The Tribunal was left to act on the material that was placed before it.

33 Although it was not mandatory by nature, it is true that direction 1 was couched in terms of leave to file documentation. It was intended to give the plaintiff a further opportunity to adduce expert evidence in support of its claim.

34 It seems to me that the plaintiff’s failure to take advantage of the opportunity presented by the direction was treated as a matter of importance by the Tribunal. It was relevant to the question of the plaintiff’s prospects of success. The plaintiff had the onus to prove its claim. Without all of what had been contemplated by the directions the Tribunal may have taken (and was entitled to take) the view that the plaintiff’s claim could not now succeed.

35 The plaintiff has tendered Exhibit A. It is the file relating to the application for rehearing. The plaintiff relies on material contained therein as evidencing error on the part of the Tribunal and steps taken by the plaintiff to comply with the directions. If there be any error on the part of the Tribunal, I do not consider it to be of any significance. On any view, what may have been done fell well short of what was contemplated by the directions (including the further information “about the sails”). In the circumstances, the Tribunal was entitled to take the view that the plaintiff had failed to gather the material that was necessary to enable it to make out its claim.

36 I am not satisfied that there was any error which justifies disturbing the exercise of discretionary power to dismiss for want of prosecution. Even if I had taken a different view on this matter, I would not have been satisfied that there was a denial of natural justice, or that there had been error in deciding a question with respect to a matter of law.

37 In my view, it was open to the Tribunal to reach the view that the plaintiff had failed to diligently prosecute the application.

38 It may be added that the decision could be fortified by the earlier non-compliance with directions.

39 In determining whether or not there has been a denial of natural justice, the task for the court is to look at the particular circumstances of the case before it. Natural justice is a flexible concept involving fairness.

40 The plaintiff bears the onus of satisfying the court that the decisions of the Tribunal should be disturbed. I am not satisfied that the plaintiff has discharged such onus. Accordingly, the plaintiff’s challenge fails.

41 The summons is dismissed. The plaintiff is to pay the costs of the proceedings. The exhibit may be returned.

Last Modified: 09/03/2004