Kearns & anor v Fair Trading Tribunal of NSW & anor [2001] NSWSC 951

Kearns & anor v Fair Trading Tribunal of NSW & anor [2001] NSWSC 951

In the overall circumstances, including medical evidence that Mr Kearns' stroke affected his expression, comprehension and ability to formulate complex issues, the significance of the legal submissions the plaintiffs wished to advance, the limited avenues of review from the Tribunal, and the Tribunal's failure to adjourn or make adequate enquiry, the plaintiffs were denied an adequate opportunity to present their case and therefore procedural fairness. Time was extended because the delay was explained by prompt pursuit of advice after refusal of rehearing and a later accident, so strict application of the time rules could occasion injustice.

Jurisdiction
Australia
Judgment Date
25 October 2001
Procedural Posture
Supreme Court Proceedings Seeking Relief in Relation to a Fair Trading Tribunal Determination / Hearing of Summons, Including Application to Extend Time for Commencement
Outcome
Determination set aside; time for commencement extended; costs ordered in favour of the plaintiffs subject to exclusions.
Legal Topics
['procedural Fairness' 'natural Justice' 'refusal of Adjournment' 'illness of Party' 'extension of Time' 'tribunal Determination']
['administrative Law' 'civil Procedure' 'fair Trading Tribunal Proceedings'] ['procedural Fairness' 'natural Justice' 'refusal of Adjournment' 'illness of Party' 'extension of Time' 'tribunal Determination']

Case Brief

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Procedural Posture

Supreme Court Proceedings Seeking Relief in Relation to a Fair Trading Tribunal Determination / Hearing of Summons, Including Application to Extend Time for Commencement

Legal Issues

  1. 1 ['Whether the Fair Trading Tribunal denied the plaintiffs procedural fairness by refusing to adjourn the hearing after medical evidence that Mr Kearns had suffered a stroke affecting expression and comprehension of speech and his ability to formulate complex issues.' 'Whether time for commencement of the Supreme Court proceedings should be extended.' "Whether the plaintiffs' allegation of bias could be resolved on the evidence."]

Ratio Decidendi

In the overall circumstances, including medical evidence that Mr Kearns' stroke affected his expression, comprehension and ability to formulate complex issues, the significance of the legal submissions the plaintiffs wished to advance, the limited avenues of review from the Tribunal, and the Tribunal's failure to adjourn or make adequate enquiry, the plaintiffs were denied an adequate opportunity to present their case and therefore procedural fairness. Time was extended because the delay was explained by prompt pursuit of advice after refusal of rehearing and a later accident, so strict application of the time rules could occasion injustice.

Court Disposition

Determination set aside; time for commencement extended; costs ordered in favour of the plaintiffs subject to exclusions.

Orders

  • ['Leave granted to file the summons and, pursuant to Part51A Rule 3, time for commencement extended to 24 September 2001.' 'Orders made in terms of paragraphs 2, 4 and 5 of the summons.' 'The Fair Trading Tribunal determination was set aside.' 'The plaintiffs were not to have costs in respect of the motion to extend...