Lancaster v McMillan [2004] NSWSC 729

New South Wales Supreme Court

CITATION : Lancaster v McMillan [2004] NSWSC 729 HEARING DATE(S) : 11 August 2004 JUDGMENT DATE : 13 August 2004

JURISDICTION: Common Law Division Administrative Law List JUDGMENT OF : Master Malpass at 1 DECISION : The summons is dismissed; the plaintiff is to pay the costs of the proceedings

CATCHWORDS : Appeal from Consumer, Trader & Tenancy Tribunal - limited avenue of appeal - denial of natural justice in refusing adjournment sought by facsimile - no appearance by plaintiff before the Tribunal - lack of evidence - futile appeal LEGISLATION CITED : Consumer, Trader & Tenancy Tribunal Act 2001, s67 Steven Lancaster (First Plaintiff) Amanda Lancaster (Second Plaintiff) PARTIES : Steven McMillan (First Defendant) Andrew Morrow (Second Defendant) Consumer, Trader & Tenancy Tribunal (Third Defendant) FILE NUMBER(S) : SC 30014/04 COUNSEL : In person (Plaintiff) Mr P Fordyce (Solicitor) (First & Second Defendants) SOLICITORS : PMF Legal (First & Second Defendants) Crown Solicitor (Third Defendant)

LOWER COURT Consumer Trader and Tenancy Tribunal of NSW JURISDICTION : LOWER COURT RT 03/34170 FILE NUMBER(S) : LOWER COURT Member P Smith JUDICIAL OFFICER :

- 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Administrative Law List

Master Malpass

13 August 2004

30014 of 2004 Steven Lancaster & Anor v Steven McMillan & Anor

JUDGMENT 1 Master: A relationship of landlord and tenant existed between the plaintiffs and the defendants in respect of the premises 16 John Radley Avenue Dural. 2 The defendants (the landlords) made application to the Consumer, Trader & Tenancy Tribunal (the Tribunal) for a monetary order (for unpaid rent and water usage). The application advised the Tribunal that the defendants were unavailable on Thursdays. 3 The application was listed for conciliation and hearing on Thursday 25 September 2003 at 2pm. 4 By facsimile date 23 September 2003, the first plaintiff made a request for an adjournment. It was in the following terms:- I have just received the listing for the above File Number, scheduled before the Tribunal for 2pm this Thursday 25 September. As discussed previously with your Clerk, I work overseas and, once known, will advise the CTTT of my availability to attend a hearing, providing 2 weeks clear notice in advance, as requested. I have advised the Applicant's agent of this adjournment request and am currently reviewing their evidence with a view to possible settlement without further inconvenience to the Tribunal schedules. We were previously advised that the Applicant's Agent could not attend on Thursday of any week. Had notice been provided by other means, rather than relying on re-directed international mail services, then it may have been possible to arrange attendance on this occasion. Unfortunately prior work commitments preclude this at such notice. 5 The plaintiffs did not appear at the appointed time for conciliation and hearing. The application for adjournment was rejected and orders were made against both of them in the sum of $8280.84, $8196.05 being for rent and $84.79 for water usage. 6 The plaintiffs made an application for re-hearing. The application for re-hearing was not granted. The written reasons given by the Tribunal are as follows:- The applicant's request for an adjournment of the hearing on 25/9/03 was considered by the Tribunal member at the hearing. The adjournment was not granted. Matters are not listed by the Tribunal to accord with a party's work commitments. 7 Proceedings were commenced in this court by summons filed on 6 February 2004. An amended summons was filed on 28 May 2004. 8 The plaintiffs are not legally represented. The originating process seems to have been signed and filed by the first plaintiff. The court was told that the appeal is brought on behalf of the first plaintiff only. 9 The proceedings seek to bring an appeal against the decision not to grant a re-hearing. The ground on which the appeal is brought is denial of natural justice. 10 I should digress at this stage to observe that although the appeal is brought in respect of the decision not to grant a re-hearing, what is sought to be attacked is what was earlier done on 25 September 2003. Any appeal against the orders made on that day is presently incompetent (it being brought well out of time). 11 The appeal came on for hearing on 11 August 2004. The summons was supported by an affidavit sworn by the second plaintiff. It annexes certain copy documentation relevant to what took place before the Tribunal. It contains inter alia the following:- … … … 2. Claim is that: (a) Notice had previously been given verbally to CTTT Officer of change of address of Plaintiffs on 27th August 2003 (b) Suitable notice period was not given for CTTT Hearing, the notice being sent to Plaintiff's old address, resulting in a delay from mail re-direction (c) Notice was received with only 2 days warning when Plaintiff was abroad (d) Hearing was then held with Plaintiff in absentia , denying natural justice through failure to execute due process correctly. … … … 12 The ambit of appeal open against a decision of the Tribunal is set forth in s67 of the Consumer Trader & Tenancy Tribunal Act 2001 (the Act). The section enables an appeal to be brought only where the Tribunal has decided a question with respect to a matter of law. The section amplifies the meaning to be given to this provision by providing that a reference to a "matter of law" includes a reference to a matter relating to the jurisdiction of the Tribunal. Despite this amplification, the ambit of challenge is limited. 13 The precise ambit of the appeal is a vexed question which was not argued in this case. For present purposes, it suffices to assume that an appeal is available on the ground of denial of natural justice. 14 The application for re-hearing was brought in respect of what was perceived to be an erroneous rejection of an adjournment application. Neither the Tribunal nor the chairperson decided a question with respect to a matter of law. 15 The first plaintiff has not sworn any affidavit deposing to the facts necessary to support his summons. The affidavit that has been sworn by his wife merely provides some copy documentation and asserts what is described as a "claim". As a consequence, the evidence that is required to found the appeal is not before the court. For that reason alone, the appeal is doomed to failure. 16 Even assuming, that there was material before the court to substantiate the alleged factual basis for a claim of denial of natural justice, I do not consider that the circumstances relied on by the plaintiffs see any denial of natural justice. In my view, the appeal is misconceived. 17 Whether or not the first plaintiff was in a situation of difficulty, the material fails to explain why some attendance could not have been made before the Tribunal. Putting that matter aside, the complaint is one of lack of suitable notice. On any view, the plaintiffs had an opportunity to appear and present their case. They did not take advantage of that opportunity. 18 Whilst a Tribunal can be expected to do what it can to ensure that justice is best served between the parties, it cannot be expected to organise the conduct of its business around the particular work commitments of one litigant. 19 The undesirable practice of seeking an adjournment per medium of facsimile or telephone communication without attendance before the Tribunal has become a vehicle of abuse. If a party chooses to use that vehicle, he or she takes the risk that the Tribunal will reject the application and proceed to a hearing of the proceedings in his or her absence. The Notice of Conciliation & Hearing makes this quite clear. 20 In dealing with adjournment applications, the Tribunal must consider inter alia the interests of all parties. On the material before the court, I am not satisfied that in refusing the adjournment application, the Tribunal did other than properly exercise its discretionary powers. 21 I should also add that this court does not set aside orders unless some useful purpose is served by so doing. In the present case, the granting of relief would be an exercise in futility. In this case, nothing is put forward to suggest that the plaintiffs have an arguable defence to what has been claimed against them. Mention was made of a possible cross-claim. However, there is no evidence to support such claim and no relief was sought in the Tribunal in respect of it. If there is such a cross-claim, it can still be pursued. 22 For a variety of reasons, the appeal is hopeless. 23 The summons is dismissed. The plaintiff to pay the costs of the summons.