Kyriakou v Long

Judgment 1HIS HONOUR: This is an application under s 69 of the Supreme Court Act 1970 for an order in the nature of certiorari to quash a decision of the Consumer, Trader and Tenancy Tribunal given on 29 November 2013. 2The application should have been brought in Common Law Division, but nothing turns on this. No interlocutory relief was sought. Both parties treated the matter as urgent and no adjournment was sought. The summons was filed in Court yesterday and dealt with on a final basis on the affidavits that were read. 3At the conclusion of submissions counsel for the defendant raised the possibility of further submissions being provided overnight. But as the matter was treated as urgent, and I had indicated I had intended to deliver judgment this morning, and said that the delivery of such submissions would not provide the plaintiff, who is self-represented, with adequate time to respond, I did not grant that leave. 4I am told that nonetheless my associate has received correspondence from the parties in which either further submissions were provided, or reference to authority was made. I did not give leave for any such steps to be taken and I have not had regard to what was forwarded to my associate. 5Although the plaintiff seeks to quash orders of the Tribunal, the Tribunal was not joined as a defendant, as it should have been. Nonetheless, the matter should be dealt with on its merits. The orders of the Tribunal that the plaintiff seeks to quash were as follows: "1. The Residential Tenancy Agreement is terminated in accordance with: s 92(b) of the Residential Tenancies Act 2010 as the tenant/occupant has intentionally engaged, caused or permitted another person to intimidate or harass a person. 2. Order for termination and possession: the tenancy agreement is hereby terminated, and possessions is to be given to the landlord on 06-Dec-2013. 3. The tenant shall pay the landlord a daily occupation fee at the rate of $26.43 per day from 30-Nov-2013 to the date possession is given. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 4. The tenant, Andrew Kyriakou, PO BOX [XXX] BEXLEY NSW 2207 Australia, is to pay the landlord, Guo Fen Long, C/- Peter Tannous - The Australian Legal Practice PO BOX 105 BURWOOD NSW 2134 Australia, the sum of $782.86 immediately. Reasons: Rent to 29/11/13 $782.86 5. No order as to costs." 6The reference in those orders to the "tenant" was to the plaintiff. The reference to the "landlord" was to the defendant. 7Section 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 provides: "65 Review by prerogative writ etc generally excluded (1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of: (a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or (b) a declaratory judgment or order, or (c) an injunction, in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter. (2) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the jurisdiction of the Tribunal to determine the matter was disputed if the ground on which the relief or remedy is sought is that: (a) the Tribunal gave an erroneous ruling as to its jurisdiction, or (b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed. (3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that: (a) the Tribunal had no jurisdiction to make the order, or (b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness." 8The plaintiff submits that the Tribunal's orders should be quashed on the grounds of jurisdictional error and for denial of procedural fairness. The error, so it is submitted, was in the Tribunal's having heard and disposed of the proceedings in the plaintiff's absence. I understood it to be common ground that the Tribunal had given both parties notice of the hearing for 29 November 2013. 9The plaintiff's unchallenged evidence in this proceeding was that on that day he fell ill with severe throat problems and excruciating pain. The hearing before the Tribunal had been scheduled for 9.15am on 29 November. At 7.22am the plaintiff sent an email to the Registrar of the Tribunal that stated: "Dear registrar, I wish to advise that I will not be able to attend the hearing in the above mentioned matter today due to illness. I will be attending my doctor's surgery this morning." 10The plaintiff attended his doctor's surgery at 8.30am on that morning. Dr Koutsoullis provided a certificate dated 29 November 2013 addressed "To whom it may concern" in which the doctor certified that he had seen the plaintiff that day, who had presented: "... with a sore throat, swollen glands and joint pains that started yesterday. He had pharyngitis with lymphadenopathy and tachycardia. I diagnosed acute pharyngitis, possibly bacterial, and prescribed antibiotics. I consider him unfit to attend Court today and for the next two days." 11In its reasons for making the orders of 29 November 2013 the Tribunal Member identified as a preliminary issue, correspondence received at 9.20am that morning. I assume this was when the Member received the email. After setting out the text of the plaintiff's email to the Tribunal the Member stated: "The matter is listed for special fixture hearing and the Tribunal accepts the submission of the landlord's legal representative that the correspondence: - Does not seek adjournment of the proceedings; or in the alternative - Has insufficient particulars for the Tribunal to consider an adjournment - Lacks specific information as to the nature of the illness or incapacity of the tenant to attend - There is no medical evidence in support." 12The Tribunal then proceeded to give reasons for making the orders for termination of the residential tenancy agreement that was the subject of that proceeding. 13The doctor's certificate adduced in evidence in the proceedings in this Court was admitted without objection and without any limitation pursuant to s 136 of the Evidence Act 1995 as to the use to which it could be put. The Tribunal did not have the benefit of that certificate. 14This was not due to any fault on the part of the plaintiff. His evidence was that he fell ill on the morning of 29 November and was unable to attend the Tribunal because of severe throat problems and excruciating pain. He submits that in the circumstances he was denied procedural fairness in the Tribunal and relies also on s 35 of the Consumer, Trader and Tenancy Tribunal Act which provides: "35 Opportunity for parties to present case The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity: (a) to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise), and (b) to make submissions in relation to the issues in the proceedings." 15Section 35 is a particular expression of the requirement also found in s 28(2) of the Consumer, Trader and Tenancy Tribunal Act that the Tribunal can inquire to inform itself on any matter in such matters as it thinks fit, subject to the rules of procedural fairness. 16The plaintiff says that by reason of his illness he was not given reasonable opportunity to call or give evidence or present his case or otherwise make submissions. 17Other relevant provisions of the Consumer, Trader and Tenancy Tribunal Act are s 25(1) and s 25(2). Section 25(1) requires the Registrar to give notice to the parties when proceedings are fixed for hearing. 18Section 25(2) provides that: "If a party who has been notified under subs (1) fails to attend at the time and at the place notified the proceedings may be held in the absence of the party." 19Also relevant is s 28(5)(a) that requires the Tribunal to act as expeditiously as is practicable and s 30(2) that in substance empowers the Tribunal to determine proceedings in favour of an applicant, if the other party to proceedings is conducting the proceedings in such a way that unreasonably disadvantages the applicant. 20On 6 December 2013 Truss DCJ dealt with an application by the plaintiff to the District Court for a stay of the orders made by the Tribunal. Section 67 of the Consumer, Trader and Tenancy Tribunal Act affords a party to proceedings in the Tribunal a right of appeal to the District Court, if the Tribunal decides a question with respect to a matter of law. An appeal lies in respect of such a decision with respect to such a matter of law. 21It appears that Truss DCJ refused the stay on the basis that the Tribunal's reasons disclosed no error of law. 22The application to this Court is put on the different basis of review by prerogative order pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act. 23Section 68 of the Consumer, Trader and Tenancy Tribunal Act provides a procedure by which the chairperson of the Tribunal may order a re-hearing, if satisfied that an applicant for a re-hearing may have suffered a substantial injustice on the grounds, amongst others, that the decision of the Tribunal in the completed proceedings was not fair and equitable. That section relevantly provides: "68 Rehearings by Tribunal (1) A party in any proceedings that have been heard and determined by the Tribunal (the completed proceedings) may, in the manner and within the time prescribed by the regulations, apply to the Chairperson to have the completed proceedings reheard by the Tribunal. (2) The grounds on which such an application may be made are that the applicant may have suffered a substantial injustice because: (a) the decision of the Tribunal in the completed proceedings was not fair and equitable, or (b) the decision of the Tribunal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the completed proceedings were being heard). ... (5) The Chairperson is not to grant the application unless: (a) each other party in the completed proceedings has: (i) been notified and given a copy of the application, and (ii) been given an opportunity to respond in writing to the application within the time prescribed by the regulations, and (b) the Chairperson has taken into consideration any such response. ... (7) The Chairperson is not to grant the application unless it appears to the Chairperson that the applicant may have suffered a substantial injustice. (8) The Chairperson's decision whether to grant or refuse the application: (a) may be made without the need for any hearing or meeting, and (b) is not to be considered to be part of the Tribunal's proceedings, and (c) is final and not subject to review of any kind. (9) If the application is granted, the Chairperson is to determine: (a) the constitution of the Tribunal in a manner appropriate for the purposes of the rehearing (having regard to the circumstances of the case), and (b) the matters that are to be reheard. (9A) If an application is refused, a person may make a further application under this section, but only if the application is made within the time prescribed by the regulations and the Chairperson is satisfied that: (a) significant new evidence has arisen since the application was refused, and (b) that evidence suggests a substantial injustice to one or more parties to the proceedings has occurred. (10) The rehearing is to be dealt with by the Tribunal as a fresh hearing of the matters to be reheard, but it does not give rise to any further rehearing under this section. ... (14) The regulations may exclude the making of an application for a rehearing under this section in cases of any prescribed class or description." 24Pursuant to cl 22 of the Consumer, Trader and Tenancy Regulation 2009 an application under s 68(1) of the Consumer, Trader and Tenancy Tribunal Act is to be made within 14 days after the date of notification of the Tribunal orders in respect of the completed proceedings. That time has not expired. 25Clause 25 of the Regulation provides that an application for a re-hearing cannot be made under s 68 of the Act in relation to the proceedings in the Tenancy Division in respect of which an order for termination of a tenancy or residency has been made, if a warrant of possession has been executed in relation to that order. I am informed that a warrant for possession has not been executed, but subject to any order that might be made, it is expected that it will be executed tomorrow. 26The Tribunal's obligation under s 35 of the Consumer, Trader and Tenancy Tribunal Act to ensure that each party in proceedings is given a reasonable opportunity to present his or her case was not the only requirement that was engaged when the Tribunal was faced with the non-appearance of the plaintiff at the hearing and the receipt of the plaintiff's email. 27Section 28(5) affords the Tribunal power to dismiss the proceeding for the plaintiff's non-appearance. If the Tribunal considered that the plaintiff was conducting the proceedings in a way that sought unreasonably to disadvantage the defendant (applicant in the Tribunal) then it was entitled, if not obliged, to proceed with the hearing. 28Moreover, the Tribunal had an obligation to determine the proceedings as expeditiously as possible. Thus, the Tribunal was faced with potentially conflicting requirements of the Act and had to make a judgment as to how to proceed on the mere basis of an email from the plaintiff that asserted his inability to attend due to an illness, but otherwise provided no particulars of that illness and no corroboration of the assertion. The absence of particulars and corroboration was not, as it happens, the plaintiff's fault. 29On the uncontested facts in the present case the plaintiff did not have a reasonable opportunity to present his case because an illness prevented his attending. I do not think that means the Tribunal erred in its decision or failed to comply with its obligations under s 35 to ensure that he did have such an opportunity, having regard to the other matters to which it was entitled and required to have regard. The Tribunal did not know that the plaintiff's illness was of sudden onset. Nor did it know that he was suffering excruciating pain. Nor did it know that he was medically unfit to appear. It had no such evidence even in the form of a certificate from the plaintiff's doctor. 30I do not need to decide whether, for these reasons, the Tribunal denied procedural fairness to the plaintiff or failed to comply with s 35. Even if the plaintiff were denied procedural fairness, the availability of prerogative relief to quash the Tribunal's orders is discretionary. It is well settled that prerogative relief may be refused where an applicant for prerogative relief has other available remedies. (See, for example, Re Construction Forestry and Mining Employees Union, Ex parte Multiplex Constructions Pty Limited (1992) 105 ALR 291; and Aronson Dyer & Groves, Judicial Review of Administrative Action, 4th ed at p 829.) 31Pursuant to s 68(1) and (2)(a) of the Consumer, Trader and Tenancy Tribunal Act and cl 22, the plaintiff could apply to the Chairperson of the Tribunal for a rehearing on the ground that the Tribunal's decision on the completed proceeding was not fair because, through no fault of his, but because of his ill health, he was not heard. The time for making that application has not expired. 32In Atkinson v Crowley [2011] NSWCA 194, Basten JA (with whom Giles and Young JJA) agreed, said (at [12]-[13]): "[12] ... Where there is alleged to be a breach of the rules of procedural fairness, the allegation must involve contravention of the requirements of s 28(2) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ('the CTTT Act'). Where there is a failure to comply with a provision of the CTTT Act , 'the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal otherwise determines': s 32(3). Whether or not that description can affect the supervisory jurisdiction of this court, the Tribunal is empowered, in dealing with such an irregularity, to set aside the proceedings or a decision in the proceedings: s 32(4). Further, a party may be entitled (though not in all cases), to seek a rehearing, if he or she has suffered a substantial injustice because the decision of the Tribunal in completed proceedings 'was not fair and equitable': s 68(2)(a). Finally, the Tribunal may, subject to the CTTT Act , determine its own procedure: s 28(1). [13] Although the operation of these provisions was not the subject of submissions in this court, it would be surprising if they did not permit the Tribunal to set aside a default judgment in circumstances where it was thought appropriate to allow a party in to defend the proceedings. A failure to seek such relief in the Tribunal, not being this case, would undoubtedly be a weighty consideration in favour of dismissing the proceedings in the Common Law Division, were grounds for review otherwise made good." 33In the course of the parties' submissions I raised the question as to whether on this application the plaintiff needed to show an arguable defence to the plaintiff's claim by analogy to the matters that would need to be shown on an application to set aside a default judgment pursuant to UCPR r 36.16(2)(b). 34On this hearing neither party adduced evidence as to the merits of their case in the CTTT. If I had concluded that prerogative relief should be granted on the ground of denial of procedure fairness, it would not have been refused on the ground that the plaintiff did not adduce evidence that he had at an least arguable defence to the plaintiff's claim. (See Re Refuge Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [59] and D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [141] and [142].) 35Nonetheless, for the reasons which I have given, prerogative relief should be refused upon discretionary grounds because the plaintiff has the alternative remedy of seeking a rehearing by application to the Chairperson of the Tribunal pursuant to s 68 of the Consumer, Trader and Tenancy Tribunal Act. No doubt in seeking to persuade the Chairperson that by proceeding in his absence the Tribunal caused substantial injustice, the present plaintiff would need to demonstrate an arguable defence to the claim of the defendant, as applicant, in the Tribunal. 36For these reasons I will dismiss the claim for substantive relief sought in the summons. However, I will make an order to stay the warrant for execution of possession up to and including 13 December 2013 and if by that date the plaintiff makes an application pursuant to s 8 of the Consumer, Trader and Tenancy Tribunal Act to the Chairperson of the Tribunal for a rehearing, then the stay of execution of the warrant of possession will be further stayed until determination of that application or further order of the Tribunal. [The plaintiff addressed and was given leave to re-open.] 2.00 pm 37This morning I explained that I proposed to dismiss the plaintiff's summons that seeks an order in the nature of certiorari to quash the Tribunal's orders of 29 November 2013 because of the alternative remedy available to the plaintiff of seeking a re-hearing pursuant to s 68 of the CTTT Act. I said that I proposed to stay the execution of the warrant for possession until 13 December 2013, or if an application for re-hearing were made by that date, then to stay the warrant for possession until the Tribunal had determined the application for a re-hearing or until further order of the Tribunal. 38Before such orders were made the plaintiff stated that he had already applied to the Tribunal pursuant to s 68 for a re-hearing and his application had been rejected. No evidence about that had been given on the hearing of his application. I gave the plaintiff leave to re-open and he tendered the application for re-hearing dated 3 December 2013 addressed to the Registrar of the CTTT and also the decision of a Tribunal Member, Mr Howe of 4 December 2013 that refused to grant a re-hearing. 39In deciding whether the plaintiff was afforded procedural fairness in the Tribunal, regard is to be had to the whole of the process in the Tribunal. (See for example Calvin v Carr [1980] AC 574 at 596-597 and Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333 at [98].) 40In his submissions of yesterday as to why the Tribunal's orders of 29 November 2013 should be quashed, the plaintiff referred to the well-known observations of Rich J in Cameron v Cole (1944) 68 CLR 571 at 589 where his Honour said: "It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside." 41In that passage Rich J was explaining why the Federal Court of Bankruptcy had inherent power to order a re-hearing where a sequestration decree had been made in the defendant's absence. The power to order a re-hearing was inherent and not affected by specific provisions of the Bankruptcy Act 1966, essentially because it was needed to afford a fair process. The same is true of the power under the Uniform Civil Procedure Rules for a Court to set aside a default judgment that has been given in the absence of the party. The availability of a re-hearing is an important integer in the assessment of whether the whole of the process is fair. 42In his application to the Tribunal for a re-hearing the plaintiff provided information to the same effect as the evidence which he gave in this proceeding to explain why his illness precluded his attendance before the Tribunal on 29 November. He described his symptoms and the pain from which he suffered and he said that he had attended the surgery of his doctor that morning who declared that he was totally unfit to do anything, and directed him home to rest for at least two days. He provided a copy of the medical certificate which was adduced in evidence on this application. He submitted that as a result of the Tribunal's having decided the matter in his absence, notwithstanding that he was too ill to attend, he suffered a substantial injustice that necessitated a re-hearing. 43The plaintiff completed an application form which appears to be a standard, or maybe a prescribed, form, in relation to such matters. The application form stated that the application for a re-hearing would be determined on the papers and it directed applicants to provide as much information and documents supporting their application as possible. The second page of the form under the heading "Grounds for Re-Hearing" stated that: "The Chairperson may direct that your matter be reheard if you can establish that you may have suffered a substantial injustice in specific circumstances. You must address these issues and provide details to support your application under one or more of the following grounds: i. Decision not fair and equitable (s.68(2)(a)) ii. Decision of the Tribunal against the weight of evidence (s.68(2)(b)) iii. Evidence now available that was not reasonably available at the time of the hearing (s 68(2)(c))" 44The plaintiff completed the part of the form under the heading "Decision Not Fair and Equitable". He did so by referring to his covering letter and the attached medical certificate. On the form under the heading "Decision Not Fair and Equitable" it is said: "It is not enough to simply say the decision was not fair and equitable. You must describe in detail how the decision is not fair and equitable. If you were unable to present your case, explain why (for example attach a medical certificate if you were sick) ..." 45The form provided separate boxes to be completed under the headings "Decision of the Tribunal Against the Weight of Evidence", and "Evidence is Now Available that was not Reasonably Available at the Time of Hearing". The plaintiff marked each of those boxes as not applicable. 46The form also contained a statement in bold type and in a box that directed an applicant to "Describe how you think a re-hearing will achieve a different decision." The plaintiff did not address this requirement. He did not say what evidence he would adduce if given the opportunity to do so, nor on what grounds he denied the claim of the applicant in the Tribunal to an order for possession and other relief in respect of his tenancy. I said in my reasons this morning that to show a substantial injustice as required by s 68 the plaintiff would be required to show that he had at least an arguable defence. No material directed to that was included in the plaintiff's application. 47The application for re-hearing was rejected by Tribunal Member Mr Howe. Section 12(5) of the CTTT Act permits the delegation of functions of the Chairperson and I assume that Mr Howe was exercising delegated authority. No point was taken about that. 48Mr Howe rejected the sufficiency of the plaintiff's explanation for his non-attendance. Amongst other things, he said: "The medical certificate was not in the form of a statutory declaration or an affidavit and so the veracity of the document may be questioned. Doctors probably do not realise that they are engaging in an exercise in futility when they issue such certificates and expect Courts to treat them as evidence if, indeed, that is what the doctors do expect. It is noted that the re-hearing applicant claimed he was aware of his illness the day before the hearing. He waited until after the time appointed for the hearing to commence before he brought his condition to the Tribunal's notice. The re-hearing applicant is no stranger to the procedures of the Tribunal. He could have authorised any person in writing on the day before or on the morning of the hearing to attend on his behalf and seek an adjournment. He failed to do so." 49This part of the Tribunal Member's reasons cannot be supported. Whether or not the certificate would be admissible in court is not to the point. Section 28(2) of the CTTT Act provides that the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit subject to the rules of procedural fairness. The form that the plaintiff was required to fill in expressly provided that material to support a claim for a rehearing on the ground that a decision was not fair and equitable because the party had been unable to present his case could be provided by way of attaching a medical certificate if the party was sick. 50That is what the plaintiff did. Nor was it correct to say that the plaintiff waited until after the time appointed for the hearing to commence before he brought his condition to the Tribunal's notice. He sent his email almost two hours before the time appointed for the commencement of the hearing. Nor did the Tribunal Member refer to any evidence that indicated that there was anyone willing and able to attend the hearing on the plaintiff's behalf to seek an adjournment. 51One of the grounds upon which the defendant had opposed the adjournment on 29 November 2013 which was a ground which appears to have been accepted by the Tribunal Member who heard the proceeding on that day was that in his email the plaintiff had not sought an adjournment of the proceedings. But such an application was necessarily implied from the terms of the plaintiff's email. 52If this were all there was to it, I think the plaintiff would be correct in saying that he was denied procedural fairness when the Tribunal process was considered as a whole. However, Mr Howe had a second ground for refusing the application for a rehearing. His reasoning on the second ground is unexceptionable. He said: "The Member who determined the proceedings has made decisions and published cogent reasons to those decisions. There is nothing in the rehearing application submitted by Mr Kyriakou to indicate what decision the Tribunal should have made. The jurat to the rehearing application is silent as to exactly what evidence Mr Kyriakou affirms to be true and correct. The jurat is blank and nothing has been submitted by the applicant to justify exactly what it is that he is swearing to be the truth. It is a virtual blank document attached to which was a medical certificate. Consequently the application is deficient to establish that the rehearing applicant may have suffered a substantial injustice. By not attending on the day Mr Kyriakou may consider that he has suffered an injustice, but he has to demonstrate that the injustice he may have suffered was 'substantial'. When regard is had to the reasons issued by the Member for terminating the residential tenancy agreement and giving possession of the premises to the landlord it is apparent that the decisions made were justified." 53As I read that part of Mr Howe's reasons he was saying in substance that the plaintiff had not demonstrated a reasonably arguable defence to the proceedings brought against him. In terms of the instructions on the application form he had not described how a rehearing would achieve a different decision. I see no error in the Tribunal refusing the application for a rehearing when that material was not provided. 54It may be that the plaintiff misunderstood what he needed to provide in order to obtain a rehearing, although he gave no evidence about that. But even if that were so, and even if he had an arguable defence to the claim made against him in the Tribunal (again, something about which there is no evidence), the plaintiff was not denied procedural fairness. His failure to include any such material that showed what his defence was, assuming that such material would have been available to him, does not reflect on the fairness of the proceedings. 55In substance the Tribunal had a process that is analogous to the process available in the courts. When the Tribunal refused to adjourn the matter on 29 November 2013 having before it only the plaintiff's email of that morning, it had to take account not only the fact that it would be determining the proceeding in the plaintiff's absence, but also of the need for expedition. It was also entitled to take into account the lack of detail as to the plaintiff's illness and the lack of corroboration. The CTTT Act provided a mechanism for any injustice that that course might have occasion to be remedied if the plaintiff could demonstrate that the decision was not fair and equitable and he had suffered a substantial injustice. The plaintiff invoked that procedure, but failed. Having regard to his failure to adduce evidence to show what his defence would have been, I do not think that he can be heard to complain that the process was unfair. 56For these reasons I order that the summons be dismissed. [Parties addressed on costs.] 57Pursuant to r 42.1 of the Uniform Civil Procedure Rules prima facie costs follow the event. I do not consider that the matters raised by the plaintiff for seeking a different costs order would justify departing from the usual course. There was no evidence in respect of some of the matters to which the plaintiff referred. I order that the plaintiff pay the 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: 24 December 2013