New South Wales Supreme Court CITATION : Heka Holdings Pty Ltd v Lethorn [2008] NSWSC 867 HEARING DATE(S) : 21 August 2008 JUDGMENT DATE : 21 August 2008 JUDGMENT OF : Malpass AsJ EX TEMPORE JUDGMENT DATE : 21 August 2008 DECISION : Proceedings dismissed; plaintiff to pay the costs of the proceedings. Any stay is lifted. CATCHWORDS : ADMINSTRATIVE LAW - denial of natural justice by Tribunal - written request for adjournment - no attendance before the Tribunal LEGISLATION CITED : Consumer, Trader and Tenancy Tribunal Act 2001 CATEGORY : Principal judgment Heka Holdings Pty Ltd t/a Roma Gallery ACN 11409638 (Plaintiff) PARTIES : Nicole Lethorn (First Defendant) Chairmand of the Consumer, Trader & Tenancy Tribunal (Second Defendant) FILE NUMBER(S) : SC 30029/08 COUNSEL : RM Henderson (First Defendant) Plaintiff in person SOLICITORS : Solicitor for the Commissioner for Fair Trading (First Defendant) IV Knight (Second Defendant) LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW LOWER COURT FILE NUMBER(S) : GEN 07/47864 11 September 2007 LOWER COURT DATE OF DECISION : 23 January 2008 19 February 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST Associate Justice Malpass Thursday 21 August 30029/08 Heka Holdings Pty Ltd v Nicole Lethorn & Anor JUDGMENT 1 HIS HONOUR: The plaintiff trades as Roma Gallery. Mrs Heka may be the sole director of the company. The first defendant purchased a leather lounge suite from the plaintiff. Issues arose between the parties as to whether or not the lounge was defective and as to whether or not there had been a failure to rectify defects. 2 The first defendant brought an application in the Consumer, Trader and Tenancy Tribunal ("the Tribunal") for a refund in purchase price and costs incurred in respect of delivery and storage. It is unnecessary to dwell on the full history of the proceedings before the Tribunal. Accordingly, I shall move on to the more recent and relevant matters. 3 The proceedings were listed for conciliation or hearing on 16 November 2007. Conciliation failed to resolve the dispute and by consent they were adjourned to 11 January 2008 for hearing. Directions were made concerning the filing and serving of documents. 4 The Tribunal notified the parties that the hearing had been vacated. By notice dated 13 December 2007 the parties were advised that the hearing had been fixed for 23 January 2008. 5 By short letter dated 14 January 2008, Mrs Heka sought an adjournment. The basis of the adjournment expressed in the letter was "as we are away on holidays and would be returning back in the first week of February". 6 On 23 January 2008, the Tribunal considered the request for an adjournment and refused it. It then proceeded to hear the first defendant's application. 7 The first defendant gave evidence under oath. The plaintiff had not complied with the direction as to filing and serving of the documents. The Tribunal found in favour of the first defendant and ordered that a sum of $6,360.65 be paid (for refund of goods not of merchantable quality/ damaged goods and for removal, storage and delivery costs). 8 On 29 January 2008, the plaintiff sought a rehearing. The application was not granted on 19 February 2008. 9 The plaintiff now brings a challenge to the decisions of the Tribunal in this Court. Contrary to the rules, it was brought by statement of claim. In respect of the first decision, the challenge has been brought out of time (the statement of claim was filed on 18 March 2008). No application for extension of time has been made. In those circumstances, it is not maintainable without an extension of time. A challenge to the decision on the application for rehearing is not open to the plaintiff (see s 68 of the Consumer, Trader and Tenancy Tribunal Act 2001). 10 At an early stage in the proceedings, the plaintiff had legal representation. By 20 June 2008, the legal representative had ceased to act. On that date, a special fixture for the hearing of the challenge was allocated by the Registrar (it was fixed for hearing on 21 August 2008). 11 The matter had been listed before the Registrar at 9.00 am. At that time there was no appearance on behalf of the plaintiff. The Court's record of proceedings shows that an appearance was made on behalf of the plaintiff at 11.15 am. It was then that the special fixture for hearing was allocated. 12 On 21 August 2008, at some stage after 10.00 am, a male person who said that his name was Sahota and a Manager of the plaintiff appeared in the court and sought to represent the plaintiff. He did not have the documentation required by the Uniform Civil Procedure Rules that would have enabled him to appear on behalf of the plaintiff (inter alia, he did not have any written authorisation and there was no supporting affidavit). In the circumstances, he had no entitlement to appear for the plaintiff and counsel for the first defendant objected to his appearance. Thereafter, he did not participate in the hearing of the proceedings but was allowed to observe what took place from the bar table. 13 The hearing concluded. I gave short oral reasons and made the necessary orders. I advised those in the court that supplementary written reasons would be provided in due course. 14 I shall now proceed with the provision of those reasons. The result in these proceedings was inevitable. The proceedings were incompetent and the material placed before the court demonstrated that they were manifestly hopeless. 15 I should add that the material included two affidavits sworn by Mrs Heka together with submissions made on behalf of both parties. I should make it clear that the Court read both of the affidavits as well as the respective submissions. 16 I should also supplement what has been earlier said by observing that in one of the affidavits the following appears: "I requested that this matter be adjourned as I had pre-booked accommodation." 17 The letter which had made that request was tendered in the proceedings by the first defendant (Exhibit 1). 18 It is unnecessary to look at any question of extension of time if the challenge is devoid of merit. I shall now look at the question of merit in more detail. 19 The challenge is founded on an alleged denial of natural justice. The authorities establish that natural justice is a flexible concept and each case will turn on its own particular facts. 20 In this case, there has clearly been no denial of natural justice. The plaintiff had notice of the hearing date and had a reasonable opportunity to appear and present its case. Instead of taking advantage of that opportunity it took the course of not appearing before the Tribunal on the hearing date (either by itself or by a representative). It took the risk that the Tribunal may not accede to its request for an adjournment and proceed with the hearings. 21 The Tribunal considered her application (inter alia, it read Exhibit 1) and made the decision to refuse it. In my view, that decision is not in any way infected by a denial of natural justice. The real complaint of the plaintiff is that she was unsuccessful on the application. 22 Although it is not relied on by the plaintiff, I shall briefly mention that there is another potential avenue of challenge. This is provided by s 67 of the Act. I have considered the material and I am satisfied that there is nothing in this case that would attract the jurisdiction under s 67. 23 In these circumstances, there is no need to consider any question of extension, inter alia, as it would be futile to grant one. I should add that no adequate explanation has been offered for the delay in bringing the challenge. 24 The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. Any stay is lifted. ********** 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.