Zioukin v BE Commerce Pty Ltd [2023] NSWCATAP 110

Zioukin v BE Commerce Pty Ltd [2023] NSWCATAP 110

The adjournment was refused because Mr Zioukin had already been accommodated by amended directions and an afternoon hearing, had had substantial time to prepare, had filed no probative appeal material despite filing extensive adjournment material, had not shown steps taken or proposed to identify the correct respondent, and the prejudice to BE Commerce Pty Ltd and public resources did not warrant adjournment. The appeal was dismissed because Mr Zioukin did not demonstrate any relevant error of law or practical injustice, and he provided no evidence or submission showing that BE Commerce Pty Ltd had sold him the phone or was otherwise the proper respondent, which was fatal to his case.

Jurisdiction
Australia
Judgment Date
19 April 2023
Procedural Posture
Internal Appeal From a Consumer and Commercial Division Decision Dismissing a Consumer Claim for a Refund for a Mobile Phone / Appeal Panel Determination of Adjournment Application and Appeal
Outcome
Application to adjourn refused; appeal dismissed.
Legal Topics
['internal Appeal' 'adjournment Application' 'procedural Fairness' 'natural Justice' 'questions of Law' 'unrepresented Litigant' 'identification of Correct Respondent']
['administrative Law' 'civil Procedure' 'consumer Law'] ['internal Appeal' 'adjournment Application' 'procedural Fairness' 'natural Justice' 'questions of Law' 'unrepresented Litigant' 'identification of Correct Respondent']

Case Brief

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Procedural Posture

Internal Appeal From a Consumer and Commercial Division Decision Dismissing a Consumer Claim for a Refund for a Mobile Phone / Appeal Panel Determination of Adjournment Application and Appeal

Legal Issues

  1. 1 ['Whether the hearing of the appeal should be adjourned because the appellant said medical issues and other legal proceedings prevented him from preparing his case.' 'Whether the Tribunal at first instance acted contrary to natural justice or procedural fairness, failed to give adequate reasons, or made factual findings contrary to the evidence.' 'Whether there was any relevant question of law or practical injustice where the appellant had not proved that BE Commerce Pty Ltd sold him the phone or had another relevant legal relationship with him.']

Ratio Decidendi

The adjournment was refused because Mr Zioukin had already been accommodated by amended directions and an afternoon hearing, had had substantial time to prepare, had filed no probative appeal material despite filing extensive adjournment material, had not shown steps taken or proposed to identify the correct respondent, and the prejudice to BE Commerce Pty Ltd and public resources did not warrant adjournment. The appeal was dismissed because Mr Zioukin did not demonstrate any relevant error of law or practical injustice, and he provided no evidence or submission showing that BE Commerce Pty Ltd had sold him the phone or was otherwise the proper respondent, which was fatal to his case.

Court Disposition

Application to adjourn refused; appeal dismissed.

Orders

  • ['The application to adjourn the hearing of the appeal is refused.' 'The appeal is dismissed.']