Boscolo v Consumer, Trader and Tenancy Tribunal

Supreme Court of NSW|2014-10-20|Before: Garling J, Hamill J, Campbell J, Adams J

EX TEMPORE Judgment 1Proceedings were commenced by the plaintiff on 1 November 2013 with the filing of a Summons, in which she sought orders that two previous orders of the Consumer, Trader and Tenancy Tribunal ("the Tribunal") be set aside. Those orders were made respectively on24 March 2014 and 16 October 2013 (although the plaintiff nominated 30 October 2013 in error). 2On 21 July 2014, the plaintiff filed an Amended Summons seeking three orders as follows: "(1) Proceedings before the tribunal were dismissed on 24 March 2014 despite a request for adjournment and medical evidence provided; (2) Housing New South Wales did not provide a property which was reasonably fit to live in and as a result the rent (which has been increased) is excessive; (3) An alternative property be offered to the plaintiff." (sic)

Procedural History 3The proceedings have been before the Court on sixteen separate occasions. 4On 23 July 2014, an application was made to the Court to dismiss the proceedings summarily. For the reasons which he delivered, Hamill J did not uphold that application: see [2014] NSWSC 997. 5Proceedings were listed for final disposition before Campbell J on two occasions in late August 2014. The plaintiff did not appear and Campbell J, with some measure of reluctance, granted an adjournment. His Honour delivered two short judgments, the first of which is recorded at [2014] NSWSC 1189 and the second at [2014] NSWSC 1205. 6The matter was next before the Court on 15 September 2014. On that day the duty judge, Adams J, gave directions with respect to the further progress of the matter, accepted an undertaking by the plaintiff to allow an inspection of her house by Housing NSW, and adjourned the matter until today for final hearing and disposition. In giving directions on that day, his Honour ordered specifically that any further material be filed by Mrs Boscolo by 10 October 2014. No further material has been filed since that time.

Today's Hearing 7The matter was called in the Duty List this morning when there was no appearance by, or on behalf of, the plaintiff, Mrs Boscolo. 8At 9.45 am this morning, the service centre for the Court received a telephone call and sent an email to my Associate with the contents of that call. The email says this: "The plaintiff has notified a barrister for Housing that they will not be attending today and asks that the matter be stood over for two weeks. Since 3.10.14 the plaintiff has been attempting to organise Supreme Court bail for her son. The plaintiff claims her son was assaulted by police and is currently in Silverwater jail and is mentally ill. The plaintiff is exhausted from trying to bail her son. The plaintiff asks me to also include that on previous occasions the plaintiff has agreed to adjournment when the defendant's barrister requested this adjournment for personal reasons". 9Counsel for the second defendant has sought and been granted leave to file in Court an affidavit of Mr Nathan Cureton sworn 20 October 2014, which deposes to two matters. First, that no inspection occurred in accordance with the arrangements which were agreed on 15 September 2014 by the parties when the proceedings were before Adams J. The inspection did not occur because the second defendant's staff did not send the requisite notification letter to Mrs Boscolo, and she indicated in a phone call to the second defendant that she was unable to be present when such inspection had been arranged to take place. 10The second matter to which that affidavit deposes is that this morning there was a phone conversation between Mrs Boscolo and Mr Cureton in which Mrs Boscolo informed him that she was unable to attend Court this morning because she was suffering from exhaustion and sought his agreement to an adjournment. She was informed that there would be no agreement to the adjournment and that the second defendant would ask the Court to proceed with the matter today. 11Mrs Boscolo reminded Mr Cureton that on a previous occasion the matter had been adjourned at his request, for counsel's convenience, however she was informed that notwithstanding that prior agreement between the parties, Mr Cureton's client would not agree to an adjournment of today's proceedings.

Discernment 12The Court has before it no other material. Enquiries made by the Court indicate that there is a matter involving a Mr Mario Boscolo, who seems to be the plaintiff's son, before the Local Court in its criminal jurisdiction tomorrow. There is not presently any listing recorded in the Court's database for an application for bail from the Supreme Court. 13The first question which I need to consider is whether or not I should adjourn the proceedings. Mrs Boscolo, who appears for herself, has some experience as a litigant. She has conducted proceedings on her own behalf in the Tribunal and as well, in the New South Wales Civil and Administrative Tribunal. She has, on a small number of occasions, appeared in this Court. 14As Campbell J's judgment in Boscolo v Consumer, Trader and Tenancy Tribunal (2) [2014] NSWSC 1205 made plain, adjournments are not granted automatically by this Court. As his Honour said, a party cannot expect that a faxed letter attaching a medical certificate is in any way a satisfactory means of applying for an adjournment, much less a telephone call to the Court's service centre or to the solicitor for the other party on the morning a matter is listed for hearing which telephone calls acknowledge no particular medical condition and no substantial reason for non-attendance by the plaintiff. 15These are judicial review proceedings. They were commenced nearly a year ago. They have not been progressed, and the material that I have before me this morning does not allow me to conclude that it is in the interests of justice that an adjournment of the proceedings ought be granted. Accordingly I refuse to adjourn the proceedings. 16Mr O'Neill, counsel for the second defendant, seeks to proceed to a final hearing. In light of the fact that the plaintiff is not present and would tender no evidence, the outcome of any final hearing would be obvious, namely a dismissal of the proceedings because no basis had been demonstrated for the orders sought in the Amended Summons.

Want of Prosecution 17Mr O'Neill properly draws my attention to an alternative basis upon which the proceedings could be dismissed, namely by application of r 12.7 of the Uniform Civil Procedure Rules 2005 ("UCPR"), for dismissal of proceedings where a plaintiff has not prosecuted the proceedings with due dispatch. 18The proper approach to the exercise of a power under r 12.7 of the UCPR is to determine whether in all of the circumstances, justice requires that the proceedings should be dismissed. This necessarily involves striking a balance between the interests of the plaintiff and the defendant, and as well, taking into account more general considerations concerning the efficiency of the Court's proceedings and the Court's operations. 19Mr O'Neill accepts that if proceedings are dismissed for want of prosecution, in the absence of the plaintiff, application could be made to set aside the dismissal. He also accepts that a dismissal of an action for want of prosecution is no bar to the commencement of further proceedings, if such proceedings are commenced in compliance with time obligations. On the other hand, if final judgment is given in the absence of a party, that party is able to seek to set aside the final judgment. 20Proceedings which are brought in this jurisdiction are of their nature expensive. Proceedings which are not prosecuted with due dispatch increase the expense to all parties and are not in the interests of justice. This proceeding, as I have said, has been on foot for almost a year. This is the sixteenth occasion when it has come before the Court and the plaintiff is not in a position to proceed with it. I am abundantly satisfied that this proceeding has not been prosecuted with due dispatch. 21Judicial review proceedings are not difficult. They involve some relatively confined issues concentrating on one or more, here three, decisions of the Tribunal which it is sought to set aside. Ordinarily one would expect that proceedings of this kind would be heard and concluded within six months. There is significant ongoing prejudice to the defendant, and given that if one was to proceed under r 12.7 there is no permanent prejudice to a plaintiff, I am persuaded that the better course, in the interests of justice is to deal with that matter under r 12.7 of the UCPR rather than to have a "final hearing" on the merits. 22I have said enough to indicate that I have formed the view that the proceedings have been prosecuted without due dispatch. Balancing the interests of plaintiff and the defendant, and taking account of the public interest in the efficient administration of justice, I am satisfied that the proper order is that the Amended Summons of Mrs Boscolo and the proceedings generally should be dismissed. 23I make the following orders: (1)The Amended Summons filed 21 July 2014 and the proceedings generally be dismissed. (2)Order the plaintiff to pay the second defendant's costs.

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: 06 November 2014

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