Sullivan v Hudson [2004] NSWSC 839

New South Wales Supreme Court

CITATION : Sullivan v Hudson [2004] NSWSC 839 HEARING DATE(S) : 8 September 2004 JUDGMENT DATE : 14 September 2004 JURISDICTION: Common Law - Administrative Law List JUDGMENT OF : Master Harrison DECISION : (1) The orders of Tribunal Member Phillipps dated 7 May 2004 are affirmed; (2) The summons filed 1 July 2004 is dismissed; (3) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS : Appeal decision of CTTT - mechanical works - installation of clutch - rehearing LEGISLATION CITED : Consumer, Trader & Tenancy Tribunal Act 2001 (NSW) - s 67 Owen Noel Sullivan (Plaintiff)

PARTIES : Adam Stuart Hudson t/as Engadine Area Mobile Mechanic (First Defendant)

Consumer, Trader & Tenancy Tribunal (Second Defendant) FILE NUMBER(S) : SC 30051/2004 COUNSEL : N/A Mr O N Sullivan (Plaintiff in person) SOLICITORS : Mr A S Hudson (Defendant in person)

LOWER COURT Consumer Trader and Tenancy Tribunal of NSW JURISDICTION : LOWER COURT MV 04/12592 FILE NUMBER(S) : LOWER COURT Senior Member R Phillipps JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

MASTER HARRISON

TUESDAY, 14 SEPTEMBER 2004

30051/2004 - OWEN NOEL SULLIVAN v ADAM STUART HUDSON t/as ENGADINE AREA MOBILE MECHANIC & ANOR

JUDGMENT (Appeal decision of CTTT – mechanical works – installation of clutch - rehearing) 1 MASTER: By summons filed 1 July 2004 the plaintiff seeks to appeal the decision of the Consumer, Trader and Tenancy Tribunal (CTTT) dated 31 May 2004, No. MV 04/12592. The plaintiff relied on his affidavit. Neither the plaintiff nor the defendant were legally represented. Mr Sullivan was the defendant in the Tribunal but for the purpose of these proceedings and for convenience I shall refer to him as the plaintiff. The second defendant the CTTT has filed a submitting appearance. 2 Section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the Act) allows for an appeal to be made to this court on a question of law. 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. 3 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 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. 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)). 4 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 and in such a manner 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). Section 35 of the Act provides that the Tribunal must ensure that each party in any proceedings is given a reasonable opportunity to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise); and to make submissions in relation to the issues in the proceedings. 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).