Wu v Medel [2008] NSWSC 895

New South Wales Supreme Court

CITATION : Wu v Medel [2008] NSWSC 895

HEARING DATE(S) : 28 August 2008

JUDGMENT DATE : 3 September 2008

JUDGMENT OF : Malpass AsJ

DECISION : Proceedings dismissed; no order as to costs of the proceedings.

CATCHWORDS : ADMINSTRATIVE LAW - denial of procedural fairness - discretionary remedy

LEGISLATION CITED : Consumer, Trader and Tenancy Tribunal Act 2001

CATEGORY : Principal judgment

CASES CITED : D'Angola & Anor v CTTT & Anor [2006] NSWSC 1023

Benxia Wu (Plaintiff) PARTIES : Erenio Enrique Medel (First defendant) Consumer, Trader and Tenancy Tribunal (Second defendant)

FILE NUMBER(S) : SC 30134/07

Martin Legal (Plaintiff) SOLICITORS : First defendant in person IV Knight (Second defendant)

LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S) : GEN 07/34767; GEN 07/54405

LOWER COURT DATE OF DECISION : 31 August 2007, 31 October 2007

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

Associate Justice Malpass

Wednesday 3 September 2008

30135/07 Benxia Wu v Erenio Enrique Medel & Anor

JUDGMENT 1 HIS HONOUR: Until 16 December 2006, the plaintiff and her ex-husband carried on business as Maria Aris Chinese Pressure Point Therapy. Prior thereto the wife of the first defendant received treatment and natural herbal supplements. Unhappiness with such therapy saw the first defendant commencing proceedings in the Consumer, Trader and Tenancy Tribunal ("the Tribunal"). This was done in or about June/July 2007. 2 The plaintiff did not appear before the Tribunal. On 31 August 2007, the Tribunal made an order that she pay the sum of $2,140 to the first defendant. The plaintiff contends that she was unaware of those proceedings until 18 October 2007 when an attempt was made to enforce the order. 3 On 25 October 2007, an application was made for rehearing. It was unsuccessful. A notice that it had not been granted was received on or about 31 October 2007. 4 A Summons was filed in this Court in December 2007. It was then brought well out of time. Subsequently, on 31 March 2008, an Amended Summons was filed. Thereafter, an extension of time was granted by the Registrar. 5 The challenge to the order of the Tribunal is founded on alleged denial of procedural fairness. 6 The hearing took place on 28 August 2008. The plaintiff was legally represented. The first defendant appeared in person. 7 The Court had before it affidavits sworn both by the plaintiff and the first defendant. Whilst the plaintiff foreshadowed the taking of objection to material contained in the affidavits of the first defendant, this was not pressed on the basis that the Court would only have regard to that of the material which was relevant and admissible. 8 Following the receiving of evidence, the parties were given the opportunity to make submissions. The plaintiff did so both in writing and orally. The first defendant made oral submissions. After the hearing of the oral submissions, the Court reserved judgment and adjourned so that it could read all of the written material. Thereafter, this task was performed. I now return to the known facts. 9 The business of Maria Aris Chinese Pressure Point Therapy was carried on at 48 Hamilton Road, Fairfield. Since the termination of that business the plaintiff has continued to trade from that address. In the course of the Tribunal proceedings a number of documents were purportedly forwarded to the plaintiff at that address (inter alia, a Notice of Hearing dated 5 July 2007, a notice of Order dated 27 July 2007, a Notice of Order dated 30 July 2007, a Notice of conciliation and hearing dated 30 July 2007 (which advised of the hearing date, 31 August 2007), a Notice or Order dated 30 July 2007, a certified copy of an Order for the payment of money dated 5 September and Notice of Order dated 3 September 2007). 10 It seems that the proceedings came before the Tribunal in July 2007. On that occasion, there was no appearance by or on behalf of the plaintiff. It seems that the proceedings were adjourned by reason of that non-attendance. The proceedings came back before the Tribunal on 31 August 2007. Again, there was no appearance by on behalf of the plaintiff. However, the first defendant says that material that had been sent by the Tribunal to the address of the plaintiff was returned to the Tribunal. In the absence of the plaintiff, the Tribunal proceeded to hear the matter and made its determination. 11 In an affidavit sworn by the plaintiff, she deposes as follows: "At the time, at which the first defendant filed his application in the CTTT I was no longer trading under the business name 'Maria Aris Chinese Pressure Point Therapy' and was undergoing a divorce from my then-husband, who was the other natural person, who had traded as 'Maria Aris Chinese Pressure Point Therapy'. I cannot be certain what happened to all of the mail, which was addressed to 'Maria Aris Chinese Pressure Point Therapy' during that period." 12 In that affidavit she deposes that on or about 31 October 2007 she did receive a Notice of Order from the Tribunal which advised that the application for rehearing had not been granted. She also deposes to receiving a further communication from the Tribunal on or about 21 November 2007. 13 In his affidavit material, the first defendant alleges that the plaintiff had full knowledge of the proceedings and deliberately did not attend the hearings. The allegations are expressed in the form of a belief. As such, in the circumstances of this case, such allegations are not in an admissible form and carry no evidentiary weight. Accordingly, I put them aside. 14 The first defendant also gives evidence of prior knowledge had by those involved in the business of an intention by the first defendant to bring proceedings in the Tribunal. In addition to that, there is the evidence earlier mentioned of the return of material sent by the Tribunal which was sent back to it with an endorsement "send to the sender". Unfortunately, the Tribunal file was not before the Court. Be that as it may, the first defendant was not cross examined concerning this evidence. 15 The concept of procedural fairness is a flexible one. Generally speaking, each case will turn on its own particular facts. The onus rests with the plaintiff. 16 The complaint of the plaintiff is that she was denied a reasonable opportunity to present her case. It is up to her to put evidence before the Court that demonstrates that this was the position. She must do so on the balance of probabilities. 17 Before proceeding further, I should dispose of one aspect of the case put on behalf of the plaintiff. The decision on the re-hearing cannot be challenged in this Court (see s 68(8) Consumer, Trader and Tenancy Tribunal Act 2001 ("the Act")). 18 The plaintiff relies on another decision of this Court: D'Angola & Anor v CTTT & Anor [2006] NSWSC 1023. It is not a decision that binds this Court. It was said that it concerned a case having similar facts. In my view, that is not the position. The facts of the respective cases are distinguishable. 19 A close analysis of the evidence (such as it is) does not reveal a denial that the Tribunal correspondence was not received at the plaintiff's business address. At its highest, it suggests that she did not see this material, perhaps because of the change of business name and that she was undergoing a divorce from the person who was then her husband. It is in essence putting forward reasons why she was allegedly unaware of the material. It may be added that the reasons are far from persuasive. 20 It must be borne in mind that it must be demonstrated in this case that any denial of procedural fairness was brought about by the Tribunal. In my view that has not been done. If she did not in fact see the material, it was not the fault of the Tribunal. Unless she can demonstrate that the Tribunal correspondence did not arrive at her premises, she was not denied a reasonable opportunity to present her case. It did its part. It may be added that, curiously, other material from the Tribunal was received by her at that same address. 21 In my view, the plaintiff's case fails because her own evidence on its face value falls short of demonstrating a denial of procedural fairness. 22 This case can be determined without looking to matters of credibility and reliability of the plaintiff's evidence. If those matters were to be pursued, the Court may have come to a view that it was neither credible nor reliable. This was a case in which there was no cross-examination. This is understandable in respect of the first defendant. He appeared in person and does not seem to have had any legal advice. 23 It may be added that the relief sought by the plaintiff (which is preserved by s 65 of the Act) is of a discretionary nature. This case involves a very modest sum. It involves at least largely a factual dispute. There is no novel question of law or any other matter of public interest. There is also another statutory remedy (rehearing) which has been pursued by the plaintiff. In my view, this is not a case in which a discretion should be exercised in favour of the plaintiff. 24 Accordingly, I have come to the view that the proceedings should be dismissed and I so order. I make no order as to the costs of the proceedings. **********