ZIVKOVIC v STYLE CRAFT BLINDS & ORS [2002] NSWSC 1024

New South Wales Supreme Court

CITATION : ZIVKOVIC v STYLE CRAFT BLINDS & ORS [2002] NSWSC 1024 FILE NUMBER(S) : SC 30013/01 HEARING DATE(S) : 15/03/2002 JUDGMENT DATE : 1 November 2002

Appellant - Slobodan Zivkovic PARTIES : First Respondent - Style Craft Blinds and Awnings Pty Ltd Second Respondent - Fair Trading Tribunal JUDGMENT OF : Dowd J

LOWER COURT Fair Trading Tribunal JURISDICTION : LOWER COURT BU 2000/05763 FILE NUMBER(S) : LOWER COURT N/A JUDICIAL OFFICER :

Appellant - Ms B Vukadinovic COUNSEL : First Respondent - Mr H Shore Second Respondent - submitting appearance SOLICITORS : Appellant - Anthony & Associates Respondent - Goldrick Farrell Mullan CATCHWORDS : Appeal from tribunal - allegation of denial of natural justice - sustained as to part of the claim. LEGISLATION CITED : Fair Trading Tribunal Act (1998) Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 CASES CITED : Kioa v Minister for Immigration and Ethnic Affairs (ALR) (1985) 159 CLR 550 Sullivan v Department of Transport (1978) 20 ALR 323 DECISION : (1) Appeal allowed; (2) Record of second respondent brought up; (3) Decision of the second respondent quashed in part; (4) Matter remitted to second respondent for a hearing de novo on original application.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DOWD J

1 November 2002

30013/01 Slobodan Zivkovic v Style Craft Blinds and Awnings Pty Ltd & ors

JUDGMENT 1 DOWD J: This was an appeal from the Fair Trading Tribunal, Home Building Division (the "Tribunal") by way of summons, where the appellant brought proceedings against the first respondent. The second respondent's members were the decision makers in two proceedings before the Tribunal. 2 The appellant's application was heard by the Tribunal on 16 October 2000, the claim being initially, for removal of an awning attached to his property by the first respondent as it was not fit for the purpose for which it was intended and purchased, and for refund of the monies paid. The Tribunal also heard a claim for damages to the appellant's property consequent upon the erection of the awning. 3 On 29 November 2000 the appellant applied to the Tribunal seeking a re-hearing under s63 of the Fair Trading Tribunal Act (1998) (the "Act") seeking a review of the earlier decision, which review was refused. 4 The appellant alleged that in the two hearings the appellant was denied natural justice and/or procedural fairness and made the following allegations: a. The second respondent made the decision without allowing the appellant an opportunity to be heard in relation to the purpose of the awning, the unsuitability of the awning, the damage arising as a result of the installation of the awning, the defects apparent once installation of the awning had occurred, and other related matters; b. The second respondent did not determine the issue of the unfitness of the awning for the use for which it was purchased which was the subject of the appellant's claim as filed with the Tribunal in May 2000; c. The second respondent did not convey to the appellant his right to object to service of the first respondent's expert's report on the day of the hearing; or d. The second respondent did not convey to the appellant the implications of accepting the tender of the first respondent's expert's report on the day of the hearing without having had the opportunity to reply to the report; e. The second respondent ordered that the experts for each of the parties produce a joint report and did not take action on the first respondent's breach of the Member's Directions of 8 August 2000; f. At the hearing of 16 October 2000, the second respondent did not explain to the appellant the likely prejudice to the appellant of not adjourning the proceedings for the first respondent's failure to comply with the Directions of 8 August 2000; g. The second respondent in his decision wrongly stated that the appellant agreed to proceed to a hearing on 16 October 2000 when no such option was put to the plaintiff; h. At the hearing of 8 August 2000 when the appellant amended his claim to include a breach of duty of care, the second respondent did not explain to the appellant what elements are to be determined in a claim for damages for breach of duty of care; i. The second respondent made his decision without allowing the appellant an opportunity of calling extra witnesses, submitting relevant evidence and cross-examining witnesses. 5 The appellant claimed the second respondent had a duty to act fairly and failed to discharge that duty in that: a. Mr Durie took into account irrelevant considerations in making the decision of 16 October 2000: i. The erroneous evidence of the experts G H Larkin and Keighran & Associates Pty Ltd with respect to the alleged modifications to the home. b. Mr Durie failed to take into account relevant considerations: i. The evidence of expert, Mr Milinkovic, MIEAust CPEng; ii. The weight of the evidence of Mr Janicijevic, Mr Rosic, Ms Rosic, Ms Kovacevic; and iii. Ignored the evidence of the appellant and his wife Mrs Zivkovic. c. The decision of Mr Durie was so unreasonable that no reasonable person in his position would have made the decision; d. Mr Durie failed to consider the substance of the appellant's submissions and evidence and wrongfully disregarded these; e. Mr Durie failed to bring to the appellant's notice his right to object to the late service of the evidence of the first respondent; f. Mr Durie failed to conduct the proceedings in a fair manner having regard to the appellant's lack of legal representation and lack of knowledge of the law; g. Mr Mallam on determining the application for review failed to take into account relevant considerations: i. The evidence of expert, Mr Milinkovic, MIEAust CPEng; ii. The weight of the evidence of Mr Janicijevic, Mr Rosic, Ms Rosic, Ms Kovacevic; iii. Ignored the eidence of the appellant and his wife Mrs Zivkovic; iv. The decision of Mr Durie as being so unreasonable that no reasonable person in his position would have made the decision; v. Mr Durie's failure to consider the substance of the appellant's submissions and evidence and wrongful disregard of these; vi. Mr Durie's failure to bring to the appellant's notice his right to object to the late service of the evidence of the first respondent; vii. Mr Durie's failure to conduct the proceedings in a fair manner having regard to the appellant's lack of legal representation and lack of knowledge of the law. 6 The appellant therefore claims: a. A declaration that the appellant was denied natural justice or procedural fairness by the second respondent. b. An order in the nature of certiorari setting aside the decision of the second respondent dated 16 October 2000, in matter number BU2000/05763. c. An order in the nature of certiorari setting aside the decision of the second respondent dated 24 January 2001, in matter number BU2000/05763. d. An order that the matter be remitted to the second respondent for a hearing de novo. e. Costs.