Italiano v Carbone & Ors [2005] NSWCA 177

New South Wales Court of Appeal

Italiano v Carbone & Ors [2005] NSWCA 177 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 02/05/05

JUDGMENT DATE: 2 June 2005

JUDGMENT OF: Spigelman CJ at 1; Basten JA at 22; Einstein J at 121

DECISION: Orders (1) Grant leave to the Claimant to amend the pleadings so as to reflect the proposed amendments to the draft notice of appeal and to file the amended notice of appeal (2) Order that the time for the filing of the amended summons be extended to 14 days after the date of handing down of the judgment (3) Grant leave to appeal (4) Allow the appeal from the Master (5) Set aside the judgment and orders of the Master made on 2 July 2004 (6) In lieu of the orders of the Master (a) Order that the decision of tribunal member Durie and the Consumer Trader and Tenancy Tribunal dated 26 June 2003 in proceedings No. HB 03/14211 be set aside (b) Order that the proceedings No. HB/14211 be remitted to the Consumer Trader and Tenancy Tribunal to be determined according to law. Costs (1) Order that the first Opponent pay the Claimant's costs of the appeal in this Court and to have a certificate under the Suitors Fund Act if otherwise qualified (2) Order setting aside the costs orders of the Master and in lieu thereof order that the First Opponent pay the claimant's costs in relation to the proceedings in the Common Law Division and to have a certificate under the Suitors Fund Act if otherwise qualified.

CATCHWORDS: Administrative law - Judicial review - Natural justice - Jurisdictional error - Procedural fairness - Consumer, Trader and Tenancy Tribunal - Whether particular procedures in Tribunal flawed by failure to comply with mandatory statutory procedures - Legislation enabling Tribunal by notice in writing or by oral direction to join a person as a party in the proceedings - Tribunal fails to make order joining claimant as party to cross-claim - Whether claimant joined into proceedings by "cross-claim" filed before Tribunal - Whether proper construction of legislation showed obligation to proceed in strict compliance with its terms - Failure to serve claimant with orders of Tribunal - Whether adjournment of Tribunal hearing ought to have been ordered to give a party proper opportunity of adequately presenting his case - Practice - Joinder of party