Supreme Court New South Wales Medium Neutral Citation: Commissioner for Fair Trading v Rixon [2014] NSWSC 491 Hearing dates: 03/04/2014 Decision date: 03 April 2014 Jurisdiction: Common Law Before: Garling J Decision: Application made in writing by Mr Rixon for an adjournment is refused. Catchwords: PROCEDURE - civil - interlocutory issues - adjournment of hearing; application for - application by letter - contempt proceedings - defendant not present - unclear explanation for absence - defendant not legally represented - matter of public interest - defendant on notice of proceedings - defendant did not exercise liberty to apply - Civil Procedure Act 2005; s 58 - interests of justice Legislation Cited: Civil Procedure Act 2005 Category: Interlocutory applications Parties: Commissioner for Fair Trading (P) Matthew Geoffrey Rixon (D) Representation: Counsel: G Sargenson (P) No appearance (D) Solicitors: M Nicoletti (P) File Number(s): 2012/00382762 EX TEMPORE Judgment 1In these proceedings, when the matter was called this morning, there was no appearance for the defendant, Matthew Geoffrey Rixon. Evidence of Mr Rixon 2Yesterday, the Court was provided with a folder of documents apparently from Mr Rixon. The folder of documents, which I will mark MFIA, contains a letter dated 1 April 2014 addressed to the Court. It says, amongst other things, the following: "Please find contained in this document the reasons and evidence to demonstrate my request for an adjournment at your Honour's pleasure. In brief, the reason for my adjournment request is that I am due to appear in court in the Australian Capital Territory for another matter so I have not been able to obtain proper legal representation in the allocated time frame and cannot appear in two courts at once. If the matter was heard today, it would result in a possible unjust verdict and would deny me due justice. I beg forgiveness from your Honour for not attending today and trust that your Honour sees the document I have provided is sufficient to seek an adjournment." 3Set out underneath that letter as part of the same document but entitled "Affidavit". In that affidavit, Mr Rixon deposes, without any formality, to the following facts: (a)that he resides in Canberra and is self-employed in the ACT as a carpenter and handyman, (b)that he "will be in the Australian Capital Territory for a hearing which was set down before this date from 2 April 2014 to 4 April 2014"; (c)that he "will be in the Australian Capital Territory for a hearing which was set down before this date from the 2nd April 2014 to the 4th April 2014". 4He then goes on to set out a range of other allegations and assertions and concludes his affidavit with the following: "Your Honour, I also ask how I can be found guilty of a crime I didn't even know I was committing in this injunction. Furthermore, what more punishment could your Honour possibly give me because of these incidents. I have had to move out of the State to gain work. I have lost my family due to the shame it has inflicted. I have a hate page and I am constantly harassed by the department and the media. Will they not stop until I am hanging from a tree? I have moved out of the State and have my life back on track and trying to rebuild it so I ask your Honour to please do one of the following: One, adjourn for at least four months; two, dismiss this case all together; three, order mediation where we can renegotiate the injunction as it is too broad." An Application for an Adjournment 5I have regarded the letter and supporting material in the affidavit set out in MFIA as being an application for an adjournment. 6The plaintiff opposes the application for the adjournment. The Plaintiff's Evidence 7In support of that opposition, the plaintiff relies on the contents of two affidavits of Mr Mark Nicoletti, solicitor. The first is an affidavit dated 21 March 2014 to which is annexed, amongst other things, relevantly two emails. 8I am satisfied from the content of the emails, which are Annexures I and J to Mr Nicoletti's affidavit of 21 March, that these proceedings were, on 13 November 2013, fixed for hearing by the Court, on 3 April 2014 with an estimate of two days. Further, that liberty to the parties to apply to the Court on three days notice was granted. 9I am also satisfied that Mr Rixon was orally informed on 13 November 2013 that the proceedings were fixed today for a hearing. 10I am also satisfied that on 9 December 2013, Mr Rixon was again informed in a more formal way that the proceedings were listed today for a hearing with an estimate of two days and, further, that either party was at liberty to apply to the Court for any further orders. 11I am also satisfied from that email that the defendant, Mr Rixon, was urged to obtain legal representation and provided with some information as to where that could be obtained on a pro bono basis. 12Annexure J to the affidavit of Mr Nicoletti contains this response from Mr Rixon to the notification email of 9 December 2013: "Thanks Mark. I am meeting with my legal team in January. I anticipate we will offer yourself a meeting in February and a chance to drop your court proceedings before we go to court and have them thrown out." 13The second affidavit relied upon by the plaintiff in opposition to the application for an adjournment is that of Mr Nicoletti sworn 2 April 2014. Mr Nicoletti disposes to a telephone conversation that he had with Mr Rixon, the defendant, on 24 March 2014. Mr Rixon told Mr Nicoletti on that day in that phone call, when requesting the consent of the plaintiff to the adjournment of the proceedings, the following: "I don't live in New South Wales any more and have court commitments that day. I can't come to court because I will be in Queensland. I haven't had time to brief lawyers. The injunction is unconstitutional and when I signed it, I didn't really understand it. All I want is to start fresh, put all this behind me and become involved in companies that deal with property sales and improvements because I am a chippie by trade and I can't under the injunction. That's why I want it varied." 14There were later discussions on that day in which Mr Nicoletti, having obtained instructions, informed Mr Rixon that the plaintiff would not be consenting to an adjournment, and that if Mr Rixon needed an adjournment, he should make an application to the Court. Further conversation ensued which is not directly relevant to the question of an adjournment. 15There have been two further conversations between Mr Rixon and Mr Nicoletti in which Mr Rixon sought the consent of the plaintiff to an adjournment, the last of those conversations being on Tuesday 1 April. 16All of these facts of which the Court is aware from affidavits need to be considered in the context of what I have been informed this morning by counsel for the plaintiff which is that, according to the court lists published on the internet by the ACT Supreme Court, there is no matter listed today involving Mr Rixon. The relevance of the list of the ACT Supreme Court is that, yesterday afternoon, my Chambers were telephoned by Mr Rixon who wished to ensure that the documents in MFIA were delivered to my Chambers. At that time, he informed my Associate that his matter, which consisted of an appeal from a Magistrates Court conviction for a driving offence, was listed in the ACT Supreme Court today. Discernment 17I have decided for the reasons that follow, that I will not grant any adjournment. 18First, the matter in this Court which relates to a question of whether or not Mr Rixon has or has not been in contempt of the Court is a very serious one and a matter which it is in the public interest to hear, and dispose of, expeditiously. 19Secondly, I am satisfied that Mr Rixon has been on notice of this hearing since November 2013 and that he has had plenty of time to arrange to be represented here today had he wished to contest the proceedings. Although informing the solicitor for the plaintiff that he had retained lawyers with whom he would be meeting in January 2014, that does not appear to be the present situation. 20Thirdly, Mr Rixon has been of the view since at least 24 March 2014, that is to say about ten days ago, that he wanted an adjournment and notwithstanding being told on that day if he wanted an adjournment he would need to apply to the Court, and having liberty to apply to the Court on three days notice, he has not made any application for an adjournment until lodging his letter, MFI A, with the Court yesterday. 21Fourthly, I simply do not believe Mr Rixon when he says that he has a matter listed in the ACT Supreme Court today. I do not believe him because, first, the information which he puts in his letter about it, namely that an appeal from a Magistrates Court driving offence is listed for a three day hearing is inherently improbable; secondly, the Court has been informed that there is no matter listed in the published list of the ACT Supreme Court today involving Mr Rixon; and thirdly, in his conversation of 24 March 2014 with Mr Nicoletti, Mr Rixon told him that he couldn't come to Court today because he would be in Queensland, which I would interpret as being, that he would be in court in Queensland because that statement was combined with the assertion that he had court commitments. It is quite unclear to me precisely where Mr Rixon is in court today, if he is in any court at all. 22Finally, in considering whether to grant any application for an adjournment, particularly where the application is made very late in the piece, I am entitled to have regard to, in considering the dictates of justice, the provisions of s 58 of the Civil Procedure Act 2005 which enables the Court to have regard to the effect which any adjournment may have on other litigants in the Court. Clearly, any late adjournment of a matter listed for two days means that other litigants are disadvantaged. 23Finally, I need to consider, particularly having regard to the seriousness of the allegations, what the interests of justice are. 24Putting it simply, Mr Rixon is well on notice of these proceedings. They are serious. He has been able to instruct lawyers if he had wished. He has apparently chosen not to. Although he could have come to court much earlier than this to make an application for an adjournment, he did not. He proffers an excuse which, on the material before me, I am unable to accept and he makes his application at the last moment and in writing. 25There is a clear public interest in proceedings of this kind being heard and determined promptly and in weighing all of the matters together, I am not satisfied that this matter should be adjourned. 26Accordingly, I refuse the application made in writing by Mr Rixon for an adjournment. ********** 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. Decision last updated: 29 April 2014