Khoury v Kassim [1999] NSWSC 762

New South Wales Supreme Court CITATION : Khoury v Kassim [1999] NSWSC 762 CURRENT JURISDICTION : Administrative Law FILE NUMBER(S) : 30103 of 1998 HEARING DATE(S) : 26 July 1999 JUDGMENT DATE : 26 July 1999

PARTIES : Michael Khoury & Ors v Malek Kassim trading as Kassim Constructions & Anor JUDGMENT OF : Carruthers AJ at 1-27

Mr McCluskey for the plaintiffs COUNSEL : Z. Naef for the first defendant Mr Singleton for the second defendant Photios Vouroudis & Co for the plaintiffs SOLICITORS : Naef & Associates for the first defendant Mr Singleton, I.V. Knight, Crown Solicitor for the second defendant CATCHWORDS : Decision and order of referee of a consumer claims tribunal quashed for failure to give a ruling after jurisdiction of tribunal disputed - whether plaintiff entitled to order for costs against the referee. ACTS CITED : Consumer Claims Tribunals Act 1987 (this Act was repealed by the Consumer Claims Act 1998 as from 1.3.99) CASES CITED : State Rail Authority of New South Wales v Consumer Claims Tribunal & Ors (1988) 14 NSWLR 473 ex parte Blume, re Osborn (1958) S.R. (NSW) 334 at 339 DECISION : Refer paras 26 and 27

- 12 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

CORAM : CARRUTHERS AJ

MONDAY, 26 JULY 1999

030103/98- MICHAEL KHOURY & ORS v MALEK KASSIM- T/AS KASSIM CONSTRUCTIONS & ANOR

JUDGMENT

1 HIS HONOUR: When I delivered judgment in this matter on 20 July 1999, I fixed today for the purpose of hearing argument on the question of costs. The argument has been an interesting one and although I would be able to express my views in a more lucid fashion if I were to deal with the matter by way of a reserved judgment, there is more than one reason why the matter should be dealt with now in an ex tempore fashion. 2 It is first necessary to trace a little of the background of this matter. By these proceedings the plaintiffs, Michael Khoury, Mary Khoury and David Khoury sought prerogative relief against the first defendant, Malek Kassim trading as Kassim Constructions and the second defendant whom they named in the summons as "Consumer Claims Tribunal". 3 The first defendant carries on business as a carpenter and the proceedings in the consumer claims tribunal arose out of disputes between him and the plaintiffs in relation to certain work carried out at the residence in which the plaintiffs live. 4 When Mr Kassim commenced proceedings in the tribunal he named each of the three plaintiffs as respondents to his claim. Mr George Vardas was appointed referee and the hearing was conducted over four separate days. 5 In my judgment dated 20 July 1999, I quashed the decision handed down by Mr Vardas on 24 August 1998 on the ground that the plaintiffs had been denied natural justice. There were two points involved here as I found. Firstly, that although two of the plaintiffs, Michael and David Khoury had objected to the jurisdiction of the tribunal, the referee failed to rule upon the matter as he was required to do under s 26 of the Consumer Claims Tribunals Act 1987, to which I shall hereinafter refer as "the Act". 6 The second basis was perhaps an unusual point. Rather reluctantly, as I held, the plaintiffs proceeded with a cross-claim before the tribunal. I say "reluctantly" because they made it clear on a number of occasions to the referee that they wished to proceed with their cross-claim in the Local Court. However, as Mr Kassim was adamant that his claim was to proceed before the tribunal and the plaintiffs did not wish to be disputing with Mr Kassim in two jurisdictions, they reluctantly stayed in the tribunal so far as their cross-claim was concerned. 7 On 20 November 1997 the referee reserved his decision. On 8 July 1998 the registrar of the Consumer Claims Tribunals wrote to each of the plaintiffs and Mr Kassim stating, inter alia, that as Mr Vardas was overseas and his return date was unknown, their matter had been listed before another referee for rehearing. The registrar attached to this letter a fresh hearing notice specifying a hearing date of 4 August 1998. 8 The plaintiffs were unhappy about this and instructed their solicitors to write to the registrar expressing concern about the costs which they had already incurred and stating that they objected to the matter proceeding to a rehearing, that their cross-claim exceeded the jurisdiction of the tribunal which was $25,000 and that they intended to initiate civil proceedings in the Local Court at Burwood. The letter concluded, "Kindly confirm that the hearing date of 4 August 1998 is now vacated". The registrar did not reply to that letter from the plaintiffs' solicitors but, thereafter, forwarded a document entitled "Notice of order" to the various plaintiffs stating: "At Hurstville on 24 August 1998 the following reserved decision was made: I order that the respondents pay to the claimant the sum of $7,500 within one month". It is not necessary to refer to the detail of the reserved decision except to note that there was an award in favour of Mr Kassim (covering both the claim and cross-claim) in the sum of $7,500. 9 The plaintiffs were dismayed with this result and commenced proceedings in this Court, by summons dated 15 October 1998, seeking to have the decision of Mr Vardas quashed. 10 I held that in addition to the failure to rule upon jurisdiction being a denial of natural justice, there was a failure to afford natural justice to the plaintiffs by the registrar declining or failing to respond adequately to the solicitor's letter to which I have referred, and, in the circumstances, the plaintiffs were presented with an adverse decision of doubtful validity. My judgment explains why I was of the view that the decision of the referee was of doubtful validity and I need not repeat those reasons here. 11 When the matter came before me for hearing this morning, Mr McCluskey of counsel appeared for the plaintiffs, Mr Naef appeared for the first defendant and Mr Singleton appeared for the second defendant, described, as I have said, Consumer Claims Tribunal.