Symons v E & G Dura [2005] NSWSC 1137

New South Wales Supreme Court

CITATION : Symons v E & G Dura [2005] NSWSC 1137

HEARING DATE(S) : 8 November 2005

JUDGMENT DATE : 8 November 2005

Common Law Division JURISDICTION : Administrative Law List

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : The appeal fails; the summons is dismissed; the plaintiff is ordered to pay the costs of the summons; the costs are to be payable on an indemnity basis; the papers are referred to the Prothonotary for attention.

CATCHWORDS : Appeal from Tribunal - brought well out of time - non-attendance of plaintiff at hearing - medical certificate in respect of elective procedure - assumption that proceedings would be adjourned - hearing of misconceived appeal proceeds - no basis for granting extension of time.

LEGISLATION CITED : Consumer Trader & Tenancy Act 2001, s67

Warren Symons (Plaintiff) PARTIES : E & G Dura (Defendants)

FILE NUMBER(S) : SC 30062/05

N/A (Plaintiff) COUNSEL : Mr A Gidaro (Defendants)

N/A (Plaintiff) SOLICITORS : J A Buda & Associates (Defendants)

LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S) : RT03/53666

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

Associate Justice Malpass

8 November 2005

30062 of 2005 Warren Symons v E & G Dura

JUDGMENT 1 His Honour: On 29 July 2005, the plaintiff filed a summons in this court. It seeks to have disturbed a decision made by the Consumer Trader & Tenancy Tribunal (the Tribunal) on 19 June 2004. 2 The summons came on for hearing on 8 November 2005. (It had been fixed for hearing on that day on 26 October 2005 and the plaintiff had been present at the time it was so fixed for hearing.) 3 The plaintiff did not appear at the hearing. No other person attempted to appear on his behalf. The defendants, who are legally represented, opposed the relief sought. They were ready to proceed and moved to have the appeal summarily dismissed. 4 For completeness, I should add that there had been a previous non-attendance by the plaintiff (on 5 September 2005) when the matter had been listed for directions before the Registrar. There had also been an earlier aborted attempt at a hearing on 22 August 2005. 5 On the afternoon preceding the hearing my associate had been informed by counsel for the defendants that an approach had been made that morning to his solicitor by a person who described herself as an "associate" to the plaintiff. Information was provided to the effect that the plaintiff was in hospital. 6 On the morning of the hearing, a facsimile was brought to my attention. It was in the following terms:- … … … FILE NO: 030062/05 DATE: 7th November 05 ATTN: ASSOCIATE JUDGE MALPASS Your Honour, I write on behalf of Mr Warren Symons. Mr Symons was admitted to Fairfield Hospital today and will be unable to attend Court on Tuesday 8.11.05 I have advised the Solicitor for E & G Dura earlier today. We sincerely regret any inconvenience. A copy of his Doctor's Certificate is annexed. Yours Sincerely, Rosemary Spittle 7 The facsimile was accompanied by what purports to be a certificate from Dr K H Tong dated 7 November 2005. The material parts of the certificate read as follows:- 7.11.2005 THIS IS TO CERTIFY THAT MR/MRS/MS Warren J Symons OF ……………………………………….. IS FIT /UNFIT FOR WORK/SCHOOL court FROM 7.11 TO 8.11 inclusive AS HE/ SHE IS/HAS BEEN SUFFERING FROM had endoscopy/colonoscopy today 8 The timing of what has been done and the content of what has been advanced on behalf of the plaintiff excites suspicion of an attempt to force the adjournment of the proceedings. 9 Unfortunately, the taking of such action is no longer an unusual occurrence, both in this court and elsewhere. 10 The court has been informed that some inquiries have been made of Dr Tong. It has been ascertained that yesterday the plaintiff underwent an elective procedure (involving a general anaesthetic). The arrangement to undergo the surgery had been made some time ago. An adverse reaction to the procedure led the doctor to extend the duration of what is said to be the plaintiff's unfitness for court to cover today. 11 It does not seem to be suggested that steps were taken by or on behalf of the plaintiff to arrange attendance at court by someone else. It simply seems to be assumed that an adjournment would be granted. 12 Whilst I consider that the circumstances relating to what may have been an attempt to force an adjournment merit further investigation and that the papers should be referred to the Prothonotary, I shall proceed to focus attention towards the merits (if any) of this appeal. 13 In the circumstances, I heard submissions from counsel for the defendants on the appeal and undertook the task of examining the papers myself. The purpose of the exercise was to ascertain whether or not there would be any utility in adjourning the proceedings. 14 The result of the exercise was to demonstrate conclusively that it would be both pointless and not in the interests of the parties to further protract the proceedings. The appeal was misconceived and hopeless. An adjournment would not assist the plaintiff. It would increase the costs that would be incurred by the defendants and ultimately increase the legal costs that the plaintiff would be liable to pay in respect of the unsuccessful proceedings. 15 The material relied on by the plaintiff sheds little light on what why the decision of the Tribunal should be disturbed. At best, it can be seen as advancing only unsupported allegation, The court does not even have the benefit of any reasons given for the decision which is the subject of appeal. 16 The material reveals that the decision related to the entry of a judgment in the modest sum of $4,494.83 (a decision that followed an earlier loss of possession of a property). The sum was awarded, inter alia, in respect of occupation fees and for reimbursement of clean up expenses. It remains unpaid. 17 Following the making of the decision, the plaintiff made an application for a rehearing. The application was not granted. 18 The proceedings have been brought well out of time. They are presently incompetent and can only be maintained if the court extends the time to bring an appeal pursuant to s67 of the Consumer Trader & Tenancy Act 2001 (the Act). 19 As has been said, the amount in dispute is modest and the court should not now be entertaining such small appeals. Hopefully, this matter will be addressed in the near future. 20 Little is offered to satisfactorily explain the delay (general allegations are made of delay in getting legal advice and capacity to afford the bringing of an appeal). The delay is significant. For these reasons alone, the proceedings are doomed to failure. 21 However, I shall put those matters aside and turn to the question of whether there is any utility in the granting of an extension of time. The court does not grant an extension where it would be futile to do so. 22 Section 67 of the Act provides a very limited avenue of appeal. An appeal lies only where the Tribunal decides a question with respect to a matter of law (including a matter relating to the jurisdiction of the Tribunal). The authorities reveal that the avenue of appeal is limited to those cases where the question concerns what is described as a "pure question of law". It is abundantly clear that no such question can arise in this case. If any error could be shown, it could only be one of fact. 23 Counsel for the defendants has drawn the attention of the court to a matter relating to jurisdiction which he apprehended may have been intended to be ventilated by the plaintiff (it is unclear as to whether such matter was ever ventilated before the Tribunal). It has been rebutted in extensive detail in the written submissions provided by counsel. 24 I have read those submissions and have independently looked at the apprehended question. In my view, it is devoid of substance. It seems to me that the Tribunal had jurisdiction to do what it did and that the defendants were entitled to summary disposition of the proceedings had there been a need to do so. 25 In those circumstances, it would be futile to grant an extension of time. 26 The appeal fails. The summons is dismissed. The plaintiff is ordered to pay the costs of the summons. The costs are to be payable on an indemnity basis. The papers are referred to the Prothonotary for attention. **********