New South Wales Supreme Court CITATION : Jabbour v CTTT & Anor [2003] NSWSC 187 HEARING DATE(S) : 18 March 2003 JUDGMENT DATE : 21 March 2003 JURISDICTION: Common Law - Administrative Law List JUDGMENT OF : Master Harrison DECISION : (1) The orders of the CTTT dated 31 January 2002, 1 May 2002, 26 July 2002 and 6 August 2002 are set aside; (2) The matter is remitted to the CTTT for rehearing; (3) The second defendant is to pay the plaintiff's costs. The second defendant is to have a certificate under the Suitors' Fund Act 1951. CATCHWORDS : Appeal decision of CTTT - failure to receive notices CTTT Act LEGISLATION CITED : Uncollected Goods Act 1995 Suitors' Fund Act 1951 Judicial Review of Administrative Act, 2nd ed., 180-181 CASES CITED : Kioa v West (1985) CLR 550 Fadi Jabbour (Plaintiff) PARTIES : Consumer, Trader & Tenancy Tribunal (First Defendant) Kim Meng Lai (Second Defendant) FILE NUMBER(S) : SC 30069/2002 COUNSEL : Mr Moschoudis (Plaintiff) Mr Angelo Andresakis, Andresakis & Associates (Plaintiff) Submitting Appearance SOLICITORS : (First Defendant) Mr Wirun Nhoung, Wirun & Company (Second Defendant) LOWER COURT CTTT JURISDICTION : LOWER COURT C02001/12719 & FILE NUMBER(S) : 01/82719 LOWER COURT Member W G Mallam JUDICIAL OFFICER : - 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST MASTER HARRISON FRIDAY, 21 MARCH 2003 30069/2002 - FADI JABBOUR v CONSUMER, TRADER & TENANCY TRIBUNAL & ANOR JUDGMENT (Appeal decision of CTTT - failure to receive notices) 1 MASTER: By summons filed 28 August 2002, the plaintiff seeks orders firstly, that the orders made on 31 January 2002 by W G Mallam, Member of the Fair Trading Tribunal (FTT) in proceedings No C02001/12719 for the repair of the car owned by the second defendant to be completed, and for the plaintiff to pay the second defendant the sum of $1,300 within 21 days of the car being returned fully repaired, to be quashed; secondly, an order that the order made on 1 May 2002 by W G Mallam, Member of the Consumer, Trader & Tenancy Tribunal (CTTT) in proceedings 01/82719 that the plaintiff pay the second defendant the sum of $10,000 be quashed; thirdly, an order that the matter be remitted to a differently constituted CTTT to hear and determine the matter according to law; fourthly, an order that time be extended to permit the plaintiff to appeal the orders of the FTT and CTTT; and fifthly, an order that the execution of the said orders of the Tribunal in proceedings No 01/82719 be stayed till further order of the court. 2 The plaintiff relied on his affidavits sworn 28 August 2002 and 4 October 2002. The plaintiff was the defendant in the CTTT proceedings but I shall refer to him as the plaintiff in this judgment. The first defendant is the CTTT and the second defendant is Kim Meng Lai and he relied upon his affidavit affirmed 23 September 2002. The second defendant was the applicant in the CTTT proceedings but I shall refer to him as the defendant in these proceedings. The first defendant filed a submitting appearance. Dunford J has referred this matter to a Master for hearing. Grounds of appeal 3 The plaintiff's grounds of appeal are that the Member denied him procedural fairness, firstly, by proceeding to determine the matter in his absence without affording him a reasonable opportunity to be heard; secondly, by failing to ensure that the plaintiff had a reasonable opportunity to adduce evidence and otherwise present his case in the proceedings contrary to s 35 of the CTTT Act ; thirdly, by failing to temporarily adjourn the proceedings to allow the plaintiff to attend before the tribunal and be heard before the order of the tribunal were made; and fourthly, by the denial of the legitimate expectation of the plaintiff that the tribunal would permit him to provide a full explanation as to why he did not attend the hearing and/or canvass the merits of the case before proceeding to determine the matter. 4 Section 67 of the CTTT Act allows for an appeal from the tribunal to this court where the tribunal decides a question with respect to a matter of law and a party to proceedings is dissatisfied with that decision. The plaintiff is now seeking prerogative relief pursuant to s 65(3)(b) of the CTTT Act. Section 65(3)(b) provides that this court is not prevented from granting relief where the ground on which the relief or remedy is sought is that a party to a claim has been denied natural justice. Denial of natural justice and procedural fairness 5 In relation to natural justice, Professor S A de Smith, Judicial Review of Administrative Act, 2nd ed., pp 180-181 has stated: "Natural justice generally required that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position: (a) to make representations on their own behalf; or (b) to appear at a hearing or inquiry (if one is to be held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet." 6 In Kioa v West (1985) 159 CLR 550 the High Court held that the duty to accord natural justice is a duty to act fairly. In the normal course, a party to judicial proceedings (as are those in a tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing such as to give it a reasonable opportunity to meet that case and to advance its own. These statements are similar to those expressed by Professor de Smith and referred to earlier. Brennan J (as he then was) at 628 stated: "A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interest which the repository of the power proposes to take into account in deciding upon its exercise." 7 In relation to procedural fairness, Mason J stated in Kioa, at 584-585, that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. Hence, whether there is a denial of procedural fairness depends on the circumstances in each case. Tribunal proceedings 8 On 31 January 2002, the Tribunal Member in his reasons stated that in the absence of hearing from the plaintiff he was satisfied that he was in breach of contract in that he failed to carry out the repairs and return the car to the second defendant. He made the following orders: "1. As an interim order it is ordered that the respondent Fadi Jabbour t/as A1 Smash Repairs of 15 Clarke Street Guildford complete the repairs to the car owned by the applicant King Mei Lai of 1/182 Hume Highway Lansvale and have the car available at its business premises at 15 Clarke Street Guildford ready for the applicant to pick up on or before 28 February 2002. The applicant is to pay the respondent a further $1,300-00 within 21 days of the car being returned fully repaired. 2. Leave is granted for either party to apply for this matter to be re-listed but only up until 28 March 2002 when this order becomes a final order of this Tribunal. 3. Directed that if such an application is made the applicant serve on the Tribunal and the respondent a letter in which it is stated: (a) who failed to comply with the order, and (b) how that person failed to comply, and (c) what orders the applicant wants if the matter is re-listed, and (d) copies of any documents intended to be presented at the hearing." 9 On 1 May 2002, the Tribunal Member ordered that the plaintiff pay to the second defendant the sum of $10,000.00 on or before 1 June 2002. He stated in his reasons: "1. On 31 January 2002 this Tribunal ordered the respondent to complete repairs to a car owned by the applicant and for the respondent to have the car available at his premises ready for the applicant to puck up on or before 28 February 2002. 2. On 26 March 2002 the applicant wrote to the Tribunal and requested that the matter be re-listed on the grounds that the respondent had failed to comply with the order. 3. It makes no sense to make a second order, that the respondent have the car ready for the applicant to pick up, when he had not complied with the first order. I intend therefore to make an order that the respondent pay compensation to the applicant for the value of the car and the return of the monies paid to him by the applicant. 4. In the absence of hearing from the respondent I am satisfied that the value of the car, in the condition it was in when handed to the respondent, was $8,500-00 . This was the amount paid by the applicant to Pickles Auction for the purchase of the car. 5. I am satisfied that the applicant also paid the respondent $500-00 in cash for labour and $1,000-00 in cash for parts purchased by the respondent. 5.(sic) The respondent should pay the applicant $10,000-00 within 1 month and is entitled to retain possess of the care once this sum is paid in full." 10 On 16 July 2002, the Tribunal wrote to the plaintiff acknowledging receipt of his application for a rehearing pursuant to s 68 of the CTTT Act and staying the orders made on 1 May 2002 for payment of money until further order. A copy of the plaintiff's application was forwarded by the Tribunal to the second defendant who was asked to provide written submissions in response by 31 July 2002. The Tribunal advised the plaintiff that when this had occurred the rehearing application and any written submission would be forwarded to the Chairperson or their delegate for decision. 11 Around Easter 2001, the second defendant left his car at the business premises of the plaintiff trading as A1 Smash Repairs at 15 Clarke Street, Guildford, for repairs. The second defendant thinks he paid the plaintiff the sum of $500.00. 12 In August 2001 the plaintiff instructed his solicitor in relation to the sale of his smash repair business. He also gave instructions to his solicitor with respect to the second defendant's car. The plaintiff claims that as the second defendant failed to return to claim the vehicle the plaintiff wanted to sell it to recover the repair bill. The plaintiff's solicitor sent two letters (31 August 2000 and 11 October 2001) to the Commissioner of Police, Stolen Vehicles Unit requesting a certificate that the vehicle was not recorded as being stolen. 13 On 5 September 2001, the plaintiff and his wife Amelia entered into a contract for the purchase of their current home at 10 Harrod Street, Prospect. Settlement took effect on 1 November 2001. At the time of entering into the contract, the plaintiff and his wife resided at 40 Beaufort Road, Blacktown. 14 On 10 October 2001, the plaintiff's business was sold to Ahmad Alex Ghamrawi and settlement occurred on 17 October 2001. 15 On 1 November 2001, the plaintiff and his wife moved into the Blacktown premises. On 28 November 2001, the plaintiff received the letter (26 November 2001) from the Stolen Vehicles Unit together with a certificate No. 2001/684 indicating that the vehicle was not recorded as stolen. 16 The plaintiff submitted that he did not receive the application to the FTT dated 26 November 2001 as it had been sent to 15 Clarke Street, Guildford and 23 Theresa Street, Guildford and he had sold his business at Clarke Street and had not lived in the premises at Theresa Street for approximately 2½ years. The property at Theresa Street was his parents, who had sold it some 18 months earlier. The plaintiff submitted that he also did not receive the orders of the CTTT of 31 January 2002 nor 1 May 2002 as they too had been sent to the premises at Clarke Street and Theresa Street. 17 In June 2002, the plaintiff was helping a friend, at his wrecking yard at Yennora to get some parts, who gave him a copy of the order addressed to the second defendant which had apparently been dropped off at the wrecking yard sometime earlier by an unknown person. This was the first time the plaintiff was aware of the CTTT's orders. 18 On 3 July 2002, the plaintiff telephoned the tribunal and was advised to lodge an application for rehearing. On 9 July 2002 the Sheriff attended his property with a notice of seizure. The plaintiff advised them of his application for rehearing and was told nothing had been received. On 10 July 2001, he went to the tribunal and lodged another application for rehearing. 19 On 26 July 2002, the Tribunal refused the plaintiff's application for rehearing and gave the following reasons. "The application for a rehearing of matter number GEN 01/82719 is not granted as the Tribunal is not satisfied that the applicant has shown on the face of the application that they may have suffered a substantial injustice. This application for rehearing was considered by the Chairperson delegate on 9/7/02 (see file GEN 02/27396) and was not granted. I also note that notice of the original matter (GEN 01/82719) were forwarded to Fadi Jabbour c/- two addresses being his principal place of business and the address of the person carrying on the business, 23 Theresa Street, Smithfield (as detailed in the Business Names Extract). I note that the Notice of Order was sent to the address (23 Theresa Street, Smithfield) on 9/5/02 and was not returned unclaimed." 20 On 6 August 2002, the Tribunal again refused the plaintiff's application for a rehearing on the basis that the application was misconceived. "This is the third rehearing application on matter number GEN 01/82719 by Fadi Jabbour. A rehearing application by this party was considered and refused on 9/7/02 and on 25/7/02. Pursuant to the Consumer, Trader and Tenancy Tribunal Act, Section 68(8)(c), the subject rehearing decision is "final and not subject to review of any kind". 21 The short point is that the first notice sent by the CTTT to the plaintiff was dated 26 November 2001. The notice was sent to the plaintiff at his business address, namely 15 Clarke Street, Guildford and his parents' address at 23 Theresa Street, Guildford. The plaintiff's business had been sold by 17 October 2001 and his parents had moved from the Theresa Street address 18 months earlier. Thus, he did not receive either notice from the CTTT. While the plaintiff stated he did not receive the notice in his application for rehearing, he did not explain why he did not receive each of the notices in detail in that application. 22 The plaintiff's defence is that firstly, the defendant owed him the money for the repairs to the motor vehicle in the sum of $1,100; secondly, there was an agreement in August 2001 by which the defendant agreed to pay the plaintiff $15.00 per day storage fees and did not do so; and thirdly, the car was an uncollected good within the meaning of the Uncollected Goods Act 1995. The first two issues were raised in the rehearing application. From the documentation of 31 October 2001, he plaintiff had instructed a solicitor to take steps to obtain a certificate under the Act so that the vehicle could be disposed of. The credibility of the parties will be in issue at the hearing. 23 It is my view that as the plaintiff did not receive the notices from the Tribunal he was denied the opportunity to present his case as outlined above. He has been denied natural justice. The orders of the Tribunal dated 31 January 2002, 1 May 2002, 26 July 2002 and 6 August 2002 are set aside. The matter is remitted to the Tribunal for rehearing. 24 The second defendant is to pay the plaintiff's costs. The second defendant is to have a certificate under the Suitors' Fund Act 1951. 25 The court orders: (1) The orders of the CTTT dated 31 January 2002, 1 May 2002, 26 July 2002 and 6 August 2002 are set aside. (2) The matter is remitted to the CTTT for rehearing. (3) The second defendant is to pay the plaintiff's costs. The second defendant is to have a certificate under the Suitors' Fund Act 1951. ********** Last Modified: 03/24/2003 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.