New South Wales Supreme Court CITATION : Pacific Sports Marine P/L v Mike Kristen & Anor [2003] NSWSC 388 HEARING DATE(S) : 6 May 2003 JUDGMENT DATE : 12 May 2003 JURISDICTION: Common Law, Administrative Law List JUDGMENT OF : Master Harrison DECISION : (1) The appeal is dimissed; (2) The orders of the Tribunal dated 12 June 2002 and 30 July 2002 are affirmed; (3) The summons is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed; (5) The stay of execution on the judgment granted 5 September 2002 is lifted. CATCHWORDS : Appeal decision of CTTT - refusal to grant adjournment LEGISLATION CITED : Consumer Trader & Tenancy Tribunal Act 2001 - s 65 Judicial Review of Administrative Act 2nd edition CASES CITED : Kioa v west (1985) 159 CLR 550 Pacific Sports Marine Pty Limited (Plaintiff) PARTIES : Mike Kristen (First Defendant) Consumer Trader & Tenancy Tribunal (Second Defendant) FILE NUMBER(S) : SC 30076/2002 COUNSEL : Mr M Refenes of James A Moustacas & Co (Plaintiff) SOLICITORS : Mr Russo of Stormers Solicitors (First Defendant) Submitting Appearance for Crown Solicitor (Third Defendant) LOWER COURT Consumer Trader & Tenancy Tribunal JURISDICTION : LOWER COURT GEN 02/20900 FILE NUMBER(S) : LOWER COURT Registrar, CTTT JUDICIAL OFFICER : - 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST MASTER HARRISON MONDAY, 12 MAY 2003 30076/2002 - PACIFIC SPORTS MARINE PTY LIMITED v MIKE KRISTEN & ANOR JUDGMENT (Appeal decision of CTTT - refusal to grant an adjournment)) 1 MASTER: By summons filed 5 September 2002, the plaintiff seeks orders pursuant to s 65(3) of the Consumer Trader & Tenancy Tribunal Act 2001 that the orders of the Consumer Trade & Tenancy Tribunal dated 12 June 2002 (and amended on 19 June 2002) in matter No. GEN02/20900 be set aside. The plaintiff relied on two affidavits of John Paul Tzanis sworn 28 August 2001 and 24 February 2003. The first defendant relied on his affidavit sworn 6 November 2002. For convenience, I shall refer to Pacific Sports Marine Pty Limited as the plaintiff and Mike Kristen as the defendant. The plaintiff is Pacific Sports Marine Pty Limited who was the respondent before the Tribunal. The first defendant is Mike Kristen who was the applicant in the Tribunal proceedings. The second defendant is the Consumer Trader & Tenancy Tribunal who filed a submitting appearance. This matter has been referred to a Master for hearing by the list Judge. 2 Section 65(3)(b) Consumer, Trader and Tenancy Tribunal Act 2001 (the Act) provides that relief can be granted by way of a judgment or order in the nature of prohibition, mandamus, certiorari, and a declaratory judgment or an injunction if in relation to the hearing or declaration of the matter, a party had been denied procedural fairness. On 5 September 2002, Bell J granted an extension of time in which to bring this appeal. 3 Section 67 of the Act allows for an appeal to be made to this court on a question of law. An appeal may only be made with leave of the court. A reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. The onus lies on the plaintiff to demonstrate that there has been an error of law. Section 67(3) of the Act provides that after deciding the question of the subject of an appeal the court may, unless it affirms the decision of the Tribunal on the question that should have been made by the Tribunal, remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal. 4 At the outset, it is helpful to set out some of the provisions of the Act. The function of the Tribunal is to adjudicate disputes between consumers and commercial disputes between landlords and tenants. The Tribunal is not constrained by the rigour of the court room. 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. The Tribunal is 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)). 5 Evidence must be given on oath or statutory declaration (s 39(1)) but the Tribunal is not bound by the rules or practice of evidence and the Tribunal may inform itself on any matter in such manner as it considers appropriate (s 28(2)). The Tribunal must conform to the rules of natural justice, but broadly speaking, has control of and responsibility for its own procedures (s 28(1) and (2)). Its business is conducted in public (s 33). Normally a party to the proceedings has carriage of his or her own case and is not entitled to be legally represented (s 36(1)). The Tribunal has the power to award costs (s 53), but usually each party bears its own costs. Pursuant to s 54 of the Act, the Tribunal is obliged to use its best endeavours to bring the parties to a settlement before making an order. The Tribunal has a power to correct its decision (s 50) and the registrar can issue a certificate which operates as a judgment (s 51). 6 The plaintiff appeals the whole of the orders made by the CTTT on 12 June 2002 and alleges denial of procedural fairness. The claim arises from a contract for the plaintiff to supply the defendant with a boat trailer. The defendant claimed that the plaintiff supplied a cheaper sub-standard trailer which meant that he was unable to transport his boat to the water. On 31 May 2002, the Tribunal forwarded a Notice of Conciliation and Hearing to the parties advising that the application was listed before the Tribunal on Wednesday 12 June 2002 at 10.30 am. At the foot of the notice, general information is provided. At point 2 it is stated: "2. If you seek an adjournment you must obtain written consent of the other party and send a copy to the Registrar prior to the hearing. If you are not advised prior to the hearing, you should attend." 7 On 7 June 2002, in response to the above letter, the general manager of the applicant, Rick Fitzgerald, wrote: "We acknowledge receipt of your Notice of Hearing dated 31/5/02 and would like to postpone/adjourn the Hearing to allow more time to prepare our Response. Our Company has recently moved premises and our redirected mail is taking several days extra to reach us. As Monday the 10th of June is the Queens Birthday Holiday, we have only three working days in which to prepare for the Hearing. This is insufficient time for us to gather the relevant information required for our Response. Our new address for all Notices is; 363 Victoria Road Rydalmere NSW 2116" 8 It appears that this letter was not received by the Tribunal prior to the hearing date (see reasons for refusal to grant a rehearing). On 12 June 2002, the Tribunal proceeded to hear the matter ex parte and made the following orders: "1. PACIFIC SPORTS MARINE PTY LIMITED, 363 Victoria Road, Rydalmere NSW 2116 is to pay MIKE KRISTEN, 6-14 Peachtree Road, Penrith NSW 2750, the sum of $4,236.00 payment to be made on or before 26/06/02 NOTE: If the other party does nor comply with the order to pay money, a certified copy of the above money order may be obtained from the Tribunal for the purpose of enforcement action through the Local Court. 2. Pacific Sports Marine Pty Ltd are to perform the following orders; - Supply Bow Covers constructed from Water Proof material - Supply side glass to boat - Supply rear Storm Cover 3. Mike Kristen is to return to Pacific Sports Marine PTY Ltd Felk Boat Trailer, such return to be arranged by respondent at premises 6-14 Peachtree Road, Penrith, return on or before 26/06/02. 4. If these orders are not complied with then at any time before 12/07/02 the landlord may request the relisting of the application to determine whether the tenancy agreement should be terminated." Denial of natural justice 9 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." 10 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." 11 In relation to procedural fairness, Mason J stated in Kioa 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 (pp 454 and 455). However, whether there is a denial of procedural fairness depends on the circumstances in each case. 12 The onus rested upon the plaintiff to ensure that the letter seeking an adjournment of the hearing date was received by the Tribunal. The notice of hearing specifically warned the plaintiff that if he did not receive advice from the Tribunal that the adjournment had been granted he should attend on the hearing date. The plaintiff did not take steps to ensure that the letter reached the Tribunal prior to the hearing date nor did he attend at the hearing. As it turns out, the managing director of the plaintiff was ill on the day and had obtained a medical certificate. No attempt was made by the plaintiff to inform the Tribunal of this fact. In these circumstances, there has been no denial of procedural fairness. The rehearing application 13 On 25 June 2002, the plaintiff sought a rehearing. It claimed that orders were made against it, because its director Mr John P Tzanis was unable to attend the hearing due to medical reasons. A medical certificate was attached. The medical certificate merely stated that Mr Tzanis was on 12 June 2002 unfit to continue his usual occupation. In the rehearing application, the plaintiff further explained that it is only a small company with three employees. There was no-one else able to appear on its behalf. The plaintiff reiterated that it had trouble preparing its response in time because it only had three workings days from when notification was received, prior to the hearing. Mr Tzanis also stated that a rehearing would allow the plaintiff to present its response and achieve a different result. It did not elaborate on what its response would be. These were the reasons that the plaintiff gave for suffering a substantial injustice. 14 On 30 July 2002, the Tribunal made the following orders: "1. The application for a re-hearing of matter 02/20900 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. 2. The stay order made on matter 02/20900 is lifted. 3. The parties are to note that the orders made on matter 02/20900 on 12/6/02 remain in full force and effect. Written Reasons The request for an adjournment was refused and Pacific sports Marine did not attend the hearing. No notice was received from them until after the orders were made to indicate that Pacific Sports Marine were unwilling to appear on the day, yet they produced a medical certificate after the hearing and its decision. It would appear that the medical certificate dated 4/6/02 was to cover the date of the hearing being 12/6/02. APPLICATION FOR A REHEARING NOT GRANTED" 15 On 17 July 2002, the plaintiff requested that the Tribunal reconsider its application for a rehearing. Mr Tzanis provided an explanation as to why the medical certificate was dated 4 June 2002 when the doctor had actually seen him on 12 June 2002, the day of the hearing. 16 On 22 July 2002, the Tribunal replied by stating: "It is not possible to reconsider your application for a rehearing on the basis of your letter. While it is possible for you to make a further application for a rehearing under Section 68 of the Consumer, Trader and Tenancy Act 2001, we would urge you to obtain advice prior to doing so. A Section 68 application does not provide you with the opportunity to have a matter reheard where you are unhappy with a decision made by the Tribunal. I also refer you to Section 67 of the Consumer, Trader & Tenancy Tribunal Act 2001 whish sets out the basis on which you may appeal to the Supreme Court with respect to a matter of law. I enclose a copy of that section for your information. Any further application needs to be on the appropriate Section 68 form and must be accompanied by the fee. I enclose a s68 application form." 17 The plaintiff elected not to make a further application for a rehearing to the Tribunal. The plaintiff's defence/response, which is outlined in the affidavit of John Tzanis sworn 24 February 2003, and his explanation for the pre-dated medical certificate, have never been the subject of a rehearing application. It is my view that the plaintiff's defence is an arguable one. It is my view that a further application for rehearing should be made to the Tribunal which puts all the material upon which the plaintiff intended to rely before it before the plaintiff can seek relief in this court. It is difficult to say that the plaintiff has been denied procedural fairness when it has not put all material upon which it intends to rely before the Tribunal so that the Tribunal can make its decision based on that material. I dismiss the appeal. The orders of the Tribunal dated 12 June 2002 and 30 July 2002 are affirmed. The summons is dismissed. 18 Costs are discretionary. Normally costs follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed. 19 The court orders: (1) The appeal is dismissed. (2) The orders of the Tribunal dated 12 June 2002 and 30 July 2002 are affirmed. (3) The summons is dismissed. (4) The plaintiff is to pay the defendant's costs as agreed or assessed. (5) The stay of execution on the judgment granted on 5 September 2002 is lifted. ********** Last Modified: 05/13/2003 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. 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