New South Wales Supreme Court CITATION : Elias & 1 Ors v Consumer, Trader and Tenancy Tribunal & 1 Ors [2006] NSWSC 692 HEARING DATE(S) : 6 July 2006 JUDGMENT DATE : 12 July 2006 JURISDICTION : Common Law Division JUDGMENT OF : Associate Justice Malpass at 1 DECISION : The challenge to the orders fails. The Summons is dismissed. The Plaintiffs are to pay the costs of the Summons. The Exhibit may be returned. CATCHWORDS : Litigants in person: bypass rehearing procedure - the procedure established by the legislature to review findings of fact - jurisdictional limitations of this Court to deal with challenges to Tribunal decisions - no duty to explain or discuss decision - decision finalises the hearing of the applications - misconceived serious allegation of bias - no entitlement to relief. LEGISLATION CITED : Consumer, Trader and Tenancy Tribunal Act 2001, ss 65, 67 Norman Naseem Elias (First Plaintiff) PARTIES : Swee Kheng Leong (Second Plaintiff) Consumer, Trader and Tenancy Tribunal (First Defendant) Jandson Pty Ltd (Second Defendant) FILE NUMBER(S) : SC 11056/06 In person (First and Second Plaintiffs) COUNSEL : Submitting appearance (First Defendant) Mr G A Kinsey (Second Defendant) Not represented (First and Second Plaintiffs) SOLICITORS : I V Knight, Crown Solicitor (First Defendant) G A Kinsey, Solicitor (Second Defendant) LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW LOWER COURT FILE NUMBER(S) : HB 04/50431 HB 04/58970 LOWER COURT JUDICIAL OFFICER : Tribunal Member, G.G. O'Keeffe LOWER COURT DATE OF DECISION : 3 February 2006 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Associate Justice Malpass Wednesday, 12 July 2006 11056 of 2006 Norman Naseem Elias & 1 Ors v Consumer, Trader and Tenancy Tribunal & 1 Ors JUDGMENT 1 His Honour: The Plaintiffs are the owners of a property at 20 Newman Street, Mortdale (the "property"). The second Defendant is a licensed builder. The parties entered into a standard form of contract for a building of the house upon the property. 2 The parties fell into dispute. There was a purported termination of the contract. The dispute brought the parties to the Consumer, Trader and Tenancy Tribunal (the "Tribunal"). 3 The Defendant filed an application on 3 November 2004. It sought an order for the payment of the sum of $14,761.10 (being the balance of the contract price after allowing for liquidated damages). The Plaintiffs also brought an application which was filed on 24 December 2004. It sought two orders. Firstly, an order that the Defendant pay the sum of $14,544.66 (being the costs of goods, appliances and repairs). Secondly an order that the Plaintiffs did not have to pay the amount claimed by the Defendant. 4 The applications were heard together by the Tribunal Member (Mr O'Keeffe). The hearing took place on 3 June and 13 September 2005. Mr Matherson (a director and nominated supervisor) appeared on behalf of the Defendant. Mr Elias appeared on behalf of both Plaintiffs. Written reasons for decision were given and dated 3 February 2005 (the "reasons"). 5 The Tribunal made the following orders: "1. On the application, the Tribunal orders Norman Naseem Elias and Swee Kheng Leong to pay Jandson Pty Ltd the sum of $14,441.10 ; 2. On the cross application the Tribunal orders Jandson Pty Ltd to pay Norman Naseem Elias and Swee Kheng Leong the sum of $8,486.98 ; 3. The Tribunal directs that the sum ordered to be paid by Norman Naseem Elias and Swee Kheng Leong to Jandson Pty Ltd pursuant to order 1, be set off against the sum ordered to be paid by Jandson Pty Ltd to Norman Naseem Elias and Swee Kheng Leong pursuant to order 2, with the balance of $5,954.12 to be paid by Norman Naseem Elias and Swee Kheng Leong to Jandson Pty Ltd on or before 3 March 2006; and 4. Each party is to bear its own costs." 6 The Plaintiffs were unhappy with the result and did not accept the decision as finalising the hearing of the application. Rather than apply for a rehearing, they chose to enter into correspondence with the Tribunal. The Plaintiffs seemed to labour under the misapprehension that the Tribunal had an obligation to explain the decision to them or enter into discussion with them concerning it. The Tribunal directed the attention of the Plaintiffs to the rights of challenge conferred by the Consumer, Trader and Tenancy Tribunal Act (the "Act"). 7 It may be observed in passing that there seems to be an unwelcome trend these days for litigants in person to call upon decision-makers and persist with communication after the event. It is something that should not happen. 8 A Summons was filed in this Court on 6 March 2006. It purports to bring a challenge to the orders made by the Tribunal. The appeal grounds set forth therein are as follows: "1) Question of relevance and legitimacy as to the Tribunal's decision to accept and determine the application of Jandson Pty Ltd when the applicant builder had two (2) outstanding non-compliances of Tribunal orders at the time of their application against the plaintiffs. This fact is shown in the plaintiffs' submissions to the Tribunal dated 24 December 2004 and again in the plaintiffs final submission (Item 3) dated 11 October 2005. 2) Apprehension of bias of Tribunal member G.G. O'Keeffe. 3) Pursuant to the final order as determined by the Tribunal dated 3 February 2006, paragraph 27, page 8, which refers to the cost of concrete to make good the council footpath (although not part of the contracted building works), but damaged by the builder, Jandson Pty Ltd during building construction, the plaintiff seeks to have this item stand. 4) Items 5 & 6 of the plaintiffs' submission to the Tribunal, dated 11 October 2005 identify false and misleading statements by the builder. The relevant details were proven to be false and misleading, supported by written and photographic evidence, and case histories. The respective items highlighted in the plaintiffs' final submission were never acknowledged by the Tribunal in its interim or final decision, or subsequent correspondence to the Tribunal after their decision was handed down 3 February 2006 (pursuant to Section 71 of the NSW CTTT Act 2001). 5) The Tribunal member has erred in his as [sic] stated in paragraph 23, page 7 of his final orders dated 3 February 2006, as no such document was ever tendered into evidence to the Tribunal and the fact that no such document as stated by the Tribunal ember did ever exist. 6) In the correspondence submitted by the plaintiffs' to the Deputy Chairperson (Determinations) of the Tribunal dated 13 February 2006 requesting reasons and explanations of the member's decisions dated 3 February 2006 were only in part, addressed by the Deputy Chairperson (Determinations) with a number of issues not addressed or even acknowledged. The Deputy Chairperson (Determinations) responded to the plaintiffs' correspondence after 14 days (27 February 2006). The plaintiffs were not in receipt of the Tribunal's response until 2 March 2006, being one day prior to the orders having to be complied with. The plaintiffs believe this not to be in accordance with and contrary to Section 49 of the NSW CTTT Act 2001." 9 The proceedings took place on 6 July 2006. Again, Mr Elias appeared on behalf of both Plaintiffs. A solicitor (Mr Kinsey) appeared for the second Defendant. The only evidence placed before the Court was a bundle of documents preferred by the Plaintiffs. It was admitted as Exhibit A. It comprised some of the material that was before the Tribunal and inter alia the transcript and the reasons. The totality of what was before the Tribunal remains in the realms of the unknown. 10 Before proceeding further, it is necessary to stress the limited avenue of challenge provided by the Act to orders made by the Tribunal. The relief that is available is provided by ss 65 and 67. 11 For present purposes, relevantly, s 65 enables a challenge to be brought where a party has been denied procedural fairness. Section 67 provides relief where the Tribunal decides a question with respect to a matter of law. 12 Section 67 provides a narrow avenue of challenge. It is not equivalent to the appeal avenue available in respect of error in point of law. The error has to relate to a decision made with respect to a matter of law. There is authority for the proposition that the decision must relate to what is said to be a pure question of law. 13 Section 67 does not enable a challenge to be brought where the complaint relates to error in the fact-finding process. A common error made by litigants in person is that it does. The rehearing process provided by s 68 is the avenue of challenge provided by the legislature to deal with inter alia questions of fact. In this case, misguidedly the Plaintiffs decided to bypass that process and come straight to this Court. 14 The obtaining of legal advice on what should have been done to challenge the orders might have prevented them from bringing their challenge in an inappropriate forum and advancing grounds of appeal that had no prospects of success. 15 A reading of the appeal grounds quickly discloses the misconceptions behind these proceedings. It is plainly obvious that the matters complained of therein largely not only do not fall within the narrow ambit of s 67 but also could not be employed to challenge the orders. For completeness, I should add nothing that was said by Mr Elias and nothing that appears in the material demonstrated error that would fall within the ambit of s 67. 16 In his submissions, Mr Elias gave some prominence to one aspect of his claim. He had sought compensation in respect of alleged damage by the Defendant to a public footpath near the property. This matter was dealt with by the Tribunal Member in paragraph 27 of the reasons (the claim was obviously rejected). Leaving aside Tribunal jurisdictional questions the Plaintiffs lacked status to bring a claim to recover moneys for damage to a public footpath. If action is brought against him by the Council they may be able to pursue relief in those proceedings. 17 These days, there are many cases in which a disposition to trawl through transcript in the hope of dressing up a case of bias on a denial of procedural fairness is manifested. It is a disposition much evidenced in proceedings brought by parties in person in this Court. 18 The Plaintiffs' submissions concentrate on what appears on page 88 of the transcript for 3 June 2005 and what appears on page 3 of the transcript for 13 September 2005. Relevant material may be found on other transcript pages and in the reasons. The alleged incident which is the genesis of the submissions is presented on pp 87 – 88. The further discussion that took place concerning it is recorded on pp 2 – 16. The relevant decision is set forth in paragraphs 15 – 17 of the reasons. 19 As a general observation, it seems to me that a careful reading of the whole of the transcript fails to support any question of bias (be it apprehended or actual). Despite what he had to put up with, the Tribunal Member appears to have maintained remarkable control and patience. 20 The particular matter that gives rise to the complaint from the Plaintiffs concerns the decision that had to be made on the questions of the date of practical completion and the award of liquidated damages and what took place between Mr Matherson and the Tribunal Member during an alleged incident in relation to it. It is said that Mr Matherson, during the course of the hearing, approached the Tribunal Member. The transcript suggests that Mr Matherson had referred to a decided case in submissions and that he showed the name of it to the Tribunal Member. Mr Elias makes the assertion that something was said whilst this was done which he did not hear. He further makes the serious assertion that this was a private disclosure to Mr Matherson by the Tribunal Member of the decision that he would make on the questions. 21 At pp 87 – 88 of the transcript, a discussion of the questions is recorded. The Court has been informed that the Tribunal Member did not have any officer or attendant to assist him in the conduct of the hearing (this explains why it was necessary to make the approach). At or about the time of the alleged incident the Tribunal Member made the following observation: "O'Keeffe Oh well look, if you want to make, we'll talk about it next time. It seems to me that the liquidated damages issue is somewhere between 30th of September and the 8th of … ." 22 Discussion on this incident resumed on the second hearing date. What took place is recorded on pp 2 – 16. 23 Page 2 of the transcript records inter alia the following: "Elias That was a document that Mr Matherson tendered to you, regarding some case. I don't know what it was, but it was not made available to me. And then a discussion took place between yourself and Mr Matherson out of earshot of myself. So, I don't know what the document is, what interpretation was sought, or what was discussed. You did ask if that was a previous, a document in a previous submission. He at first stated yes, then you asked him again, and he said no. He proceeded to your bench, and then a discussion of approximately 10 to 15 seconds took place between the two of you of which I was not a party to. Matherson Member, I think you asked me to clarify one of the cases I referred to that was on my notes. Elias But a discussion took place in private, between the two of you at your bench. I don't know what it was about. Was an interpretation sought? Was an interpretation given? Or, was a decision discussed? O'Keeffe I have no recollection of it. If there was any discussion … I mean this is a very small hearing room, but if there's any discussion taken place with somebody standing a metre and half from you, I would have assumed you-you'd heard the conversation." 24 These passages of transcript seem to record the initial stance taken by Mr Elias (it was out of earshot and he did not know what it was about). As the transcript proceeds his position appears to change (conflicting comments from him are recorded) and move to the firm position of an assertion that notification of the proposed decision was privately conveyed to Mr Matherson. Thereafter, the assertion is aggressively pressed and bias is alleged. 25 The transcript later records the Tribunal Member vigorously denying the assertion and any bias on his part. 26 In my view, leaving aside the matter of the unlikelihood of what is asserted happening, the content of this material badly reflects on its credibility. 27 Further, in the circumstances of this case, it seems to me to be extremely unlikely that the asserted incident would have taken place. 28 What the material reveals is that there is no evidence whatsoever to support the assertion made by Mr Elias. All the Court has is the bare assertion made by him. 29 In my view, I see no reason why I should not accept the denials of the Tribunal Member. Even on one of the versions offered by Mr Elias, the alleged discussion only occupied approximately 10 – 15 seconds at a time when he was positioned close to both Mr Matherson and the Tribunal Member. Prior to the hearing the latter were unknown to each other. The quantum in issue was not large (indeed, what is involved in the whole dispute was relatively modest). Even putting these matters aside, the concept of the assertion lacks any sense of reality. 30 I reject the assertion made by Mr Elias. In my view, it was recklessly made. It is baseless and unfounded. In my view, it should not have been made. If it had been made by a legal practitioner, the maker of it may now be facing serious consequences. 31 The following is recorded on p 16 of the transcript: "Elias I am sorry I still form the strong belief in view that there is a bias there and I will ask you to stand down on the grounds of reasonable apprehension of bias. O'Keeffe OK Well I have heard your submissions on that and I reject the submission. Elias Then OK I will no longer acknowledge or recognise you as the presiding Member of this hearing, I will be submitting no further submissions and I will be lodging a formal application of complaint." 32 I observe that despite this threat from Mr Elias, he continued to participate in the hearing (inter alia making submissions). 33 For completeness, I should add that Mr Kinsey did take the Court to authorities dealing with the question of the expression of preliminary views during the course of a trial. Mr Elias has not taken the Court to any authority on this question. In the circumstances of this case it is unnecessary to look to the authorities. 34 I have already set out what was said by the Tribunal Member as to the questions on the first hearing date. 35 I consider that this comment makes it clear that a preliminary thought was being expressed at that time and that the Tribunal Member was informing the parties that the questions were to be pursued when the further hearing resumed. The transcript records that what was contemplated by those comments later took place. The questions were further discussed on the second hearing date. They were not resolved until February 2005 when the reasons were given. 36 The decision on the question is to be found in paragraphs 15 - 17 of the reasons. The paragraphs record that the Tribunal was satisfied that practical completion had not been reached as at 30 September 2004. An award of liquidated damages was made for the period from 28 January 2004 to 8 October 2004. 37 The challenge to the orders fails. The Summons is dismissed. The Plaintiffs are to pay the costs of the Summons. The Exhibit may be returned. ********* 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.