Isaac Fam – Afraem Abdel-Malek t/as Subguru v Justin Mark Congahan [2015] NSWCATCD 82

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Isaac Fam – Afraem Abdel-Malek t/as Subguru v Justin Mark Congahan [2015] NSWCATCD 82 Decision date: 21 July 2015 Jurisdiction: Consumer and Commercial Division Before: S Westgarth, Deputy President Decision: Application Dismissed Legislation Cited: Civil and Administrative Tribunal Regulation 2013 Category: Principal judgment Parties: Isaac Fam – Afraem Abdel-Malek (applicant) Justin Mark Conaghan (respondent) File Number(s): MV 15/38281 Publication restriction: Nil

reasons FOR DECISION

Background 1. The applicant applies to have an order made 9 June 2015 made in the Consumer and Commercial Division of the Tribunal set aside. The application was received by the Tribunal on 15 June 2015. 2. The order which the applicant seeks to have set aside is an order which requires the applicant and another person to pay the sum of $6,229.10 to the respondent to this application. That respondent was the applicant in the proceedings which resulted in the order of 9 June 2015. That application was brought against Afraem Abdel-Malek and Isaac Fam t/as Subguru. There was no appearance at the hearing on 9 June 2015 on behalf of the respondents to that application. 3. The basis for the application to set aside the order of 9 June 2015 is that the applicant says that he was unfit to attend at the Tribunal due to "severe kidney pains". In support of his medical condition he has supplied a photocopy document issued by Bankstown Lidcombe Hospital headed "ED Discharge Referral". That document records that the applicant attended the hospital on 25 May 2015 and was discharged that day. The applicant has also supplied a medical certificate from Dr D Saad. The particular certificate is a photocopy only, dated 9 June 2015 which records that the applicant has a history of "renal stones and was suffering from renal colic on the 9 June 2015". The certificate goes on to say that he was "unfit for any form of work from 9 May 2015 to 10 May 2015 inclusive". The certificate is a photocopy only and does not appear to have been signed. On its face it records that the applicant was unfit until 10 May 2015 which is approximately one month prior to the hearing. Even if there is a typographical error in the medical certificate and that the reference to May should have been a reference to June, the certificate raises some questions. These questions are: why has a photocopy only been supplied, why is it unsigned and does the Doctor take the view that the applicant was unfit to attend the Tribunal as opposed to being unfit for his normal work activity? 4. The application to set aside does not appear to give any reason why the applicant could not have been represented at the hearing by the other respondent (Afraem Abdel-Malek) or by any other person on behalf of the business they jointly conducted. 5. The hearing on 9 June 2015 was preceded by directions issued by the Tribunal for both parties to exchange evidence. The applicant to those proceedings filed his evidence but the respondent (namely the applicant in this set aside application) did not. There does not appear to be any reason why the applicant did not comply with those directions.