New South Wales Supreme Court CITATION : De-Bourbon v Bennies & Anor [2007] NSWSC 1179 HEARING DATE(S) : 19/10/2007 JUDGMENT OF : Associate Justice Malpass EX TEMPORE JUDGMENT DATE : 19 October 2007 DECISION : The Summons is dismissed. The plaintiff is to pay any costs incurred by the defendant. CATCHWORDS : Denial of natural justice - non-appearance - medical certificate forwarded to Tribunal - no appeal from refusal of rehearing LEGISLATION CITED : Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Phillipe De-Bourbon (Pl) PARTIES : Gunter William Bennies (1st Def) Consumer, Trader and Tenancy Tribunal (2nd Def) FILE NUMBER(S) : SC 13276/07 COUNSEL : In person (Pl) In person (1st Def) SOLICITORS : Crown Solicitor (2nd Def) (submitting appearance) LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW LOWER COURT FILE NUMBER(S) : n/a LOWER COURT JUDICIAL OFFICER : C. Murphy LOWER COURT DATE OF DECISION : 13/02/2007 - 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE MALPASS 19 OCTOBER 2007 13276/07 Phillipe De-Bourbon v Gunter Willie Bennies & Anor JUDGMENT 1 HIS HONOUR: In these proceedings, the evidence placed before the Court could be described as grossly inadequate. As a consequence, what has happened between the parties is largely a matter for speculation. Both parties are self-represented. 2 It appears that the defendant did some work for the plaintiff and that the former considered that part payment only had been made. The defendant brought an application in the Consumer, Trader and Tenancy Tribunal (the Tribunal). 3 A hearing took place on 13 February 2007. The plaintiff did not attend. Apparently, he had sent a medical certificate to the Tribunal. The Tribunal proceeded with the hearing and made an order (presumably in the sum of about $1,000.00). 4 Application was made for a re-hearing. Apparently, that application was rejected. Presumably that happened in February or March this year. 5 The plaintiff commenced proceedings in this Court on 23 July 2007. Presumably, it is intended to challenge what was done by the Tribunal. The challenge has been brought out of time and is incompetent without an extension of time. No application for extension of time is made. 6 Apart from the problems thrown up by the evidentiary shortcomings (neither the orders made nor the reasons for decision are before the Court), the proceedings are otherwise misconceived and doomed to failure. 7 There is no appeal from a refusal of an application for re-hearing. Section 68 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the Act) provides that a re-hearing is not to be considered to be part of the Tribunal's proceedings and is final and not subject to review of any kind. 8 In respect of the decision of the Tribunal, no appeal is available pursuant to s67 (the Tribunal did not decide a question with respect to a matter of law). 9 There is a general complaint of a denial of natural justice. It appears to relate to the Tribunal proceeding in the absence of the plaintiff. 10 Section 65 of the Act enables relief to be granted when a party has been denied procedural fairness. In this case, evidence does not demonstrate that there was such a denial. 11 The limited material that has been provided by the plaintiff merely demonstrates that he failed to either appear himself or be represented at the hearing of the defendant's application. He took the risk that by merely sending a medical certificate to it, the Tribunal would adjourn the proceedings. The Tribunal was entitled to decline to adjourn the proceedings and to proceed with the final disposition of the small amount in issue. It did not deprive the plaintiff of the opportunity to present his case. 12 The Summons is dismissed. The plaintiff is to pay any costs incurred by the defendant. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.