New South Wales Supreme Court CITATION : Hofman v Optus & Anor [2003] NSWSC 164 HEARING DATE(S) : 5 February 2003 JUDGMENT DATE : 18 March 2003 JURISDICTION: Common Law - Administrative Law List JUDGMENT OF : Master Harrison DECISION : (1) The amended summons filed 20 February 2002 is dismissed; (2) The plaintiff is to pay the first defendant's costs as agreed or assessed. CATCHWORDS : Appeal decision of FTT: prerogative relief - procedural fairness Fair Trading Tribunal Act 1998 LEGISLATION CITED : Consumer, Trader and Tenancy Troibunal Act 2001 Fairt Trading Regulations 1999 Judicial Review of Administrative Act 2nd ed 180-181 IRC v National Federation of Self-employed & Small Businesses Ltd 1982 AC 617 CASES CITED : Annetts v McCann (1990) 170 CLR 596 [65 ALJR 167; 97 ALR 177] Kioa v West (1985) 159 CLR 550 Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 951 PARTIES : Fair Trading Tribunal (Third defendant) FILE NUMBER(S) : SC 30002/2002 COUNSEL : Mr Ian Pike (First Defendant) Ms D G Hofman (Plaintiff in person) Mr Andrew Hill of SOLICITORS : Baker & McKenzie (First Defendant) FTT (Submitting Appearance) LOWER COURT FTT JURISDICTION : LOWER COURT 99/72438 FILE NUMBER(S) : LOWER COURT Tribunal Member Ms Paull JUDICIAL OFFICER : - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST MASTER HARRISON TUESDAY, 18 MARCH 2003 30002/2002 - DENISE GRACE HOFMAN v CABLE AND WIRELESS OPTUS LIMITED & ANOR JUDGMENT (Appeal decision of Fair Trading Tribunal: prerogative relief- procedural fairness) 1 MASTER: By amended summons filed 20 February 2002 the plaintiff seeks to appeal the decision of the Fair Trading Tribunal (now the Consumer Trader and Tenancy Tribunal) dated 15 October 1999. The plaintiff alleges denial of natural justice and seeks prerogative relief. The plaintiff relied on her affidavits sworn 5 March 2002, 13 June 2002 and 26 August 2002. The first defendant relied on the affidavit of Paul Kennedy sworn 30 May 2002 and 5 February 2003. The second defendant, the Consumer, Trader and Tenancy Tribunal (CTTT) filed a submitting appearance. The plaintiff handed up lengthy written and wide-ranging submissions. She gave an oral presentation of these submissions. It was only after the plaintiff's submissions were made that the issues were crystallised. Hence, leave was granted to the first defendant to rely on a further affidavit which covered the subject matter of the plaintiff's complaints, namely, the conduct of the hearing at the Fair Trading Tribunal (FTT). 2 The plaintiff's explanation for delay in commencing these proceedings is that after the hearing in the FTT she applied to the Administrative Appeals Tribunal to obtain a document from the Police. The decision from which the plaintiff now seeks relief was handed down on 15 October 1999. The claim was filed on 29 January 2002 over 2 years after the decision was made. On 29 November 2001, the Administrative Appeals Tribunal gave a decision, which ordered the NSW Police to release an Optus document. The plaintiff submitted that this gave her grounds to seek relief pursuant to the Fair Trading Tribunal Act 1998 (the Act). 3 There are limitations upon an appeal to this court as set out in ss 61 and 62 of the Act. Clause 18 of the Fair Trading Regulations 1999 provides that no appeal lies to the Supreme Court pursuant to s 61 if the amount claimed or disputed does not exceed $25,000. The plaintiff is now seeking prerogative relief and submitted that due to the quantum of the claim she is precluded from lodging an appeal for the rehearing of her case, as there has been a denial of natural justice and procedural fairness pursuant to s 60(3)(b) of the Act. Section 60(3)(b) provides that this court is not precluded 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. This provision is mirrored by s 65(3)(b) of the Consumer, Trader and Tenancy Tribunal Act 2001. The Fair Trading Tribunal Act has been repealed and replaced by the CTTT Act. However, Sch 6 cl 6 of the CTTT Act makes provision for proceedings in the former Tribunal, which were instituted before 25 February 2002 to be continued and determined under the Act. The legislation specifically includes any proceedings that are the subject of an appeal to the Supreme Court. As the plaintiff's claim was filed on 29 January 2002, the Act is to apply to these proceedings. In any event, both Acts contain identical provisions in relation to denial of natural justice. 4 Prerogative relief is a feature of judicial review of administrative action, where 'prerogative remedies' or 'prerogative orders' are sometimes referred to. In his judgment in IRC v National Federation of Self-employed & Small Businesses Ltd 1982 AC 617, Lord Roskill, at 656, referred to the phenomenal growth of prerogative "orders" or relief to check the usurpation of power by administrative bodies to the disadvantage of the ordinary citizen and this sentiment has also been echoed in Australian courts in recent times: Annetts v McCann (1990) 170 CLR 596 [65 ALJR 167; 97 ALR 177]. 5 At general law, prerogative relief can be granted in the form of a judgment or order for declaration, injunction, mandamus, certiorari, prohibition, habeas corpus and quo warranto. These forms of relief are issued at the discretion of the court and not as of right and each may require certain considerations to be met. Three factors may have a bearing upon the courts in the exercise of their discretion. They are: (1) the existence of an adequate alternative remedy; (2) the nature of the decision under review; (3) the futility of granting relief. 6 As I understand it, the plaintiff asserted that she was never given an opportunity to reply to the Optus arguments and was not given the opportunity to participate in mediation. The plaintiff wishes to have the opportunity to clear her name and reputation and the only way she feels that she can do this is by way of having her case re-heard. 7 The brief facts which give rise to the plaintiff's complaints to FTT are as follows. On 24 July 1998 the plaintiff replaced her analogue mobile telephone with a Nokia Digital telephone. For four years prior the plaintiff used an analogue telephone and had not experienced any problems with her phone nor her account. For both the analogue and digital mobile phones, Optus was her service provider. The plaintiff's telephone bills increased from $70 to hundreds of dollars per month. She claimed that she was billed for $700.00 even though her phone had not been operational for more than three months. The plaintiff lodged an application with the Fair Trading Tribunal and sought reimbursement of her telephone bill payments, $13,000 for security to her home, salary and medication for stress. 8 The presiding Member in her reasons for judgment, dated 15 October 1999 stated: "The applicant made numerous complaints to the respondent through its customer service department. She alleged that "Matthew" at Optus had told her "someone was manipulating the brain of my phone externally" . The applicant told officers of the respondent that she was assisting police in relation to a criminal investigation and that, shortly after she had spent some time with police, her phone started to behave strangely. She was convinced that her phone was being intercepted or bugged by police. She also gave this evidence to the Tribunal." 9 The Tribunal made findings that: "1. The applicant's allegations that her phone was not working in early November was contradicted by the respondent's evidence. 2. The applicant failed to produce any evidence to show that her telephone was "bugged" – even her witness could put it no higher than "suspicion" or "belief". 3. Even if the applicant was correct that the telephone was "bugged" by police or other third party, it was difficult to see how the respondent was liable. 4. The respondent's evidence that it had charged the applicant for cancelling service for non-payment pursuant to the contract was not refuted by the applicant. 5. The applicant produced no evidence as to the quantum of her claim." 10 The application was dismissed. On 2 November 1999 the plaintiff sought a re-hearing. On 25 November 1999, the application for rehearing was dismissed. 11 It is helpful to outline some of the provisions of the CTTT. The function of the CTTT is to adjudicate disputes between parties. The Tribunal is not constrained by the rigour of the courtroom. Its objects are to ensure that the Tribunal is accessible, its proceedings are efficient and effective, its decisions are fair and to enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner. 12 Similar objects were stipulated previously under the Act for the FTT. These objects are mirrored in the CTTT Act. The FTT was to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 27(3); CTTT Act s 28 (3)). Evidence was to be given on oath or statutory declaration (s 36(1); CTTT Act 39 (1)) but the Tribunal was not bound by the rules or practice of evidence and the Tribunal could inform itself on any matter in such manner as it considered appropriate (s 27(2); CTTT Act 28 (2)). The Tribunal was required to conform to the rules of natural justice, but broadly speaking, had control of and responsibility for its own procedures (s 27(1) and (2); CTTT Act s 28 (1) and (2)). Its business is conducted in public (s 30; CTTT Act s 33). Normally a party to the proceedings had carriage of his or her own case and was not entitled to be legally represented (s 33(1); CTTT Act s 36 (1)). The Tribunal had the power to award costs (s 48; CTTT Act s 53), but usually each party bore its own costs. Pursuant to s 49 of the Act (CTTT Act s 54), the Tribunal was obliged to use its best endeavours to bring the parties to a settlement before making an order. The Tribunal had a power to correct its decision (s 46; s 50 CTTT Act) and the registrar could issue a certificate which operated as a judgment (s 47; CTTT Act s 51). Denial of natural justice and procedural fairness 13 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." 14 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." 15 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. 16 In Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 951 Grove J stated at para 25: "There is ample authority that procedural fairness is denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequate opportunity to prepare or present a case: Sullivan v Department of Transport (1978) 20 ALR 323; Opitz v Repatriation Commission (1991) 29 FCR 50; Humphrey v Wills (1989) VR 439." 17 Whether there is a denial of procedural fairness depends on the circumstances in each case. 18 The plaintiff submitted that she had been given an unsigned copy of a document of Rosetta Bernadello. Yet when she read her FTT file in 2002 she was shocked to find that Rosetta Bernadello's declaration was now signed and witnessed by a JP. However, the JP had not written his number on the document which the plaintiff said is a legal requirement of all JP's witnessing signatures on legal document in this State. The plaintiff asked the question: "How did this document get signed after the hearing date?" The plaintiff submitted that she could only assume that someone interfered with the file when it was read by the solicitors acting on behalf of Cable and Wireless Optus when faced with a Supreme Court challenge because they knew an unsigned statutory declaration should not have been accepted by the FTT in the original hearing. 19 The plaintiff also submitted that the documents on the FTT file are different to the ones given to her on the day by Christine Paull. The statutory declaration is now signed and the record of phone conversations she had with Optus is different to the pages that she was given. She submitted that on the file, the document entitled "Memo – Optus Confidential" does not contained "blacked out" entries. Both the blacked out version and the non-blacked out version are on the CTTT file. It is the surnames of individuals named within that memo that are blacked out. From the subsequent correspondence on file, it seems that the Tribunal Member took the view that once that document was put in evidence Optus waived any claim of confidentiality. 20 Prior to the hearing, the parties had been advised by letter that the matter was listed for hearing for one hour's duration. The main area of dispute between the parties is when and in what form documents were given to Ms Hofman during the hearing process. As there is no transcript taken in CTTT matters the parties have given evidence as to their version of what occurred at the hearing. It is common ground between the parties that Mr Kennedy and Ms Kate Courtney of Optus attended the hearing. Ms Courtney left the employ of Optus in November 2001 so she did not swear an affidavit nor give evidence at this hearing. In the plaintiff's camp, Mr Bill Allen accompanied the plaintiff to the hearing at the CTTT. He provided a statement and gave evidence at this hearing. In the defendant's camp, Mr Kennedy swore an affidavit and gave evidence. 21 At the outset the Tribunal member, Ms Paull invited the parties into the hearing room. Ms Paull introduced herself but Mr Allen and the plaintiff could not discern the Trinal member's name. The five persons present were introduced to each other and the Tribunal member administered an oath to those in attendance to tell the truth. Ms Paull then asked Ms Hofman to outline her case. Ms Hofman spoke for between 20 to 25 minutes, although Mr Kennedy thought it was longer. Mr Allen gave evidence that both the plaintiff and defendant spoke for about the same length of time. According to the Tribunal Member's notes, the hearing was of two hours duration from 2.00pm to 4.00pm. 22 Ms Hofman outlined a number of matters, which included reasons as to why she should not be required to pay the telephone bill that Optus had rendered to her. She says that, while she cannot remember all of what she said, her main focus was that she should not have to pay a bill to her phone service provider when the service did not work. Ms Hofman maintained that she should not have to pay for calls she had not made. Ms Hofman gave evidence that she either handed documents to the Tribunal member or had previously posted them to the Tribunal (t 41 49-50). Mr Kennedy gives a different version of the plaintiff's evidence to the Tribunal and his evidence largely accords with the evidence recorded in the Tribunal Member's notes. 23 After Ms Hofman had finished presenting her case, the Tribunal member asked Optus to state its case. Ms Courtney presented Optus' case and Mr Paul Kennedy observed her doing so. The plaintiff alleges the documents on the Tribunal file are different from those handed to her, and that these documents were only given to her by the Tribunal Member when the proceedings had finished. Mr Kennedy's recollection was that a packet containing copies of the documents was given either by Ms Courtney or himself to Ms Hofman at the same time as the package of material was given to the Tribunal member and that this occurred prior to Ms Courtney outlining Optus' case. The Optus documents handed up by Ms Courtney consisted of firstly, a memorandum; secondly, a statutory declaration; thirdly, an internal document which details the plaintiff's complaints and action Optus staff took; and fourthly, a copy of the standard agreement for supply of Optus Mobile Digital Service. 24 According to Mr Kennedy, the main points highlighted by Ms Courtney were firstly, that Optus had fully investigated Ms Hofman's complaints as to the quality of the service and the phone and had found them to be unsubstantiated; secondly, that a number of the complaints made by Ms Hofman, concerning such things as drop outs, were regularly experienced with a mobile phone service generally; and thirdly, Optus' investigations revealed that Ms Hofman had been properly charged for the calls made. 25 During the course of Ms Courtney's address Mr Kennedy observed both Ms Hofman and Mr Allen to be looking at the package of material Ms Courtney had given them. On a number of occasions throughout Ms Courtney's address, Ms Hofman interrupted her to point out that she was wrong. Mr Kennedy estimated that this occurred on at least 15 occasions during the course of the 20 minute address. Mr Allen agreed that Ms Hofman put her point of view forward while Ms Courtney was presenting Optus' case but says it was on less than 15 occasions. 26 Before retiring from the room, the Tribunal member requested the parties to take the opportunity while she was out of the room to try and settle the dispute. Mr Kennedy's recollection is that both Ms Courtney and Ms Hofman said to the Tribunal Member words to the effect that they did not think that the matter would settle. The Tribunal member then said that she was proposing to leave the room for approximately 10 to 15 minutes and would come back and give her reasons if the parties had not settled the matter. The Tribunal member then left the room. 27 Both parties agree that while the Tribunal member was out of the room, there was a discussion between Ms Hofman and the Optus representatives. These discussions were not fruitful. Optus was unwilling to negotiate a settlement. Approximately 10 to 15 minutes after the Tribunal member left the room, she returned. She asked the parties whether they had settled the matter and she was told "No". This part is common ground. However, what was said by the Tribunal member afterwards is in dispute. According to Mr Kennedy the Tribunal member upon being told the matter had not settled looked at Ms Hofman and said words to the effect: "I have listened to both parties and read the material. I do not think you have made out your case and I find in favour of Optus. Accordingly, the case is dismissed." 28 Mr Allen is an environmental health officer for the centre of public health and due to the nature of his job is often in court giving evidence (t 27.50). Mr Allen's evidence is that: "We were given a copy of a blacked out statement after the member left the room to leave us to try and speak for both parties to talk to each other then she came back in, gave us a copy with a blacked out version. We had a quick look while we were there and Ms Hofman asked questions on that. And we then said – I think she said as I said: "Have you reached an agreement?" Both parties had not reached an agreement. Then she said "I can do no more, it's dismissed" and we went outside and reviewed this blanked out version of a statement from – I don't know who it was signed by, I don't know who, purportedly from Optus. Now I can't believe the Fair Trading Tribunal operates that way. The way it was there Ms Hofman could not present everything, or they were challenging on the, I think, the phone tapping or phone bugging, but her case is about her phone having a problem. To me, she didn't really get a mention much." (t 28.40-55) 29 Mr Allen refers only to the blacked out copy being given after the Member left the room and concedes Ms Hofman did have the opportunity to ask some questions "about that". According to Mr Allen, the Member asked "Have you both reached an agreement?" Both parties said "No." The Member said that she could "do no more" and dismissed the case. The parties then left the room. Ms Hofman and Mr Allen then had a brief look at the blacked out document given to the plaintiff by the Tribunal Member. In evidence, the plaintiff supported Mr Allen's version. In the plaintiff's letter to the FTT dated 1 December 1999, she records that the Tribunal Member stated "I dismiss the case", but did not make reference to the purported statement that she could "do no more". 30 Section 32 of the Act provides that the Tribunal must ensure that each party in the proceedings is given a reasonable opportunity to call evidence and otherwise present the party's case and make submission. It is my view that the plaintiff was given a reasonable opportunity to present her case and make submissions. Overall the proceedings occupied about two hours of hearing time. Both parties spent about an equal amount of time presenting their case and making submissions. The plaintiff had the opportunity to hand up her four documents and call Mr Allen as a witness. The plaintiff was able to follow the case presented by Optus as she interrupted Ms Courtney at least several times. If she did not have the Optus documents she would have had difficulty following Optus' case and it is likely that she would have asked the Tribunal Member if she could see and read the documents or the Tribunal Member would have made sure that she had a copy of those documents. Likewise, Optus had the opportunity to hand up its documents and make submissions. On the balance of probabilities it is more likely than not that the plaintiff received copies of the Optus documents at the outset of Optus' presentation of its case. Mr Allen refers only to the blacked out document being given to Ms Hofman at the conclusion of the proceedings and even then Ms Hofman asked some questions about it before the Tribunal Member gave her decision. 31 Section 49 of the Act (CTTT Act s 54), required the Fair Trading Tribunal to promote settlement. But the section relevantly provides that it was the duty of the Tribunal only to use it's: "best endeavours to bring the parties in the proceedings to a settlement that is acceptable to all the parties". It seems that both parties told the Tribunal member that the matter would not settle but nevertheless, in the exercise of her discretion, the Tribunal member gave the parties an opportunity to settle their dispute. The Tribunal member is not obliged to insist on the parties settling the matter. I am satisfied that there was procedural fairness afforded to the parties at the hearing in the FTT. 32 Even if I am wrong, I would not grant relief because two years have passed since the hearing took place. The further documents which the plaintiff stated were necessary for her to obtain prior to lodging the appeal do not establish that the plaintiff's mobile phone was faulty. Hence, it would be futile to remit this matter to the CTTT. The decision of the FTT dated 15 October 1999 is affirmed. The summons is dismissed. 33 Costs normally follow the event. The plaintiff is to pay the first defendant's costs as agreed or assessed. 34 The court orders that: (1) The amended summons filed 20 February 2002 is dismissed. (2) The plaintiff is to pay the first defendant's costs as agreed or assessed. ********** Last Modified: 03/19/2003 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.