Berou v CTTT - [2007] NSWSC 1046

CITATION: Berou v CTTT & Anor [2007] NSWSC 1046

HEARING DATE(S): 14 September 2007

JUDGMENT DATE :
20 September 2007

JURISDICTION: Common Law Division - Administrative Law List

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is dismissed; (2) The decision of Tribunal Member Marzilli dated 2 August 2006 is affirmed; (3) The amended summons filed 19 June 2007 is dismissed; (4) The plaintiff is to pay the second defendant's costs as agreed or assessed.

CATCHWORDS: Prerogative relief - Decision of CTTT - denial of procedural fairness - error of law

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) - ss 28, 35, 65
Home Building Act 1989 (NSW) - s 10

CASES CITED: Italiano v Carbone [2005] NSWCA 177
Maconachie v Kullenburg & Ors [2005} NSWCA 294
Milstern Retirements Services Pty Ltd v Carton & Ors [2006] NSWSC 937

PARTIES: George Berou trading as Berou Fabrication - Plaintiff
Consumer Trader and Tenancy Tribunal - First Defendant
Abdou Saad - Second Defendant

FILE NUMBER(S): SC 30109/2006

COUNSEL: Mr A Canceri - Plaintiff
Mr A T Martin - Second Defendant

SOLICITORS: CPC Lawyers - Plaintiff
Submitting Appearance, Crown Solicitor - First Defendant
Sid Hawach & Co - Second Defendant

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): HB06/13989; HB06/20693

LOWER COURT JUDICIAL OFFICER : Tribunal Member Claudio Marzilli

LOWER COURT DATE OF DECISION: 2 August 2006

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

ASSOCIATE JUSTICE HARRISON

THURSDAY, 20 SEPTEMBER 2007
30109/2006 - GEORGE BEROU t/as BEROU

FABRICATION v CONSUMER TRADER &
TENANCY TRIBUNAL OF NEW SOUTH
WALES & ANOR

JUDGMENT (Prerogative relief – Decision of CTTT

- denial of procedural fairness – error of law)

1 HER HONOUR: By amended summons filed 19 June 2007, the plaintiff claims, first, a declaration that the orders made by the first defendant on 2 August 2006 in proceedings HB06/13989 and HB06/20693, that the plaintiff is to pay the second defendant the sum of $24,003.00 on or before 13 September 2006, is invalid and unlawful; secondly, a declaration that the decision and consequential order of the first defendant made on 19 August 2006 in not granting an application for rehearing is void; thirdly, orders in the nature of certiorari setting aside the orders made by the first defendant on 2 August 2006 and 19 August 2006, restraining the defendants from taking any action or any step to give effect to the orders made by the first defendant on either 2 August 2006 or 19 August 2006; and that the matter be remitted back to the first defendant to be reheard according to law. The second ground of appeal relating to the rehearing is not pressed.

2 The plaintiff is George Berou trading as Berou Fabrication (Mr Berou). The first defendant is the Consumer Trader and Tenancy Tribunal of New South Wales (CTTT) and has filed a submitting appearance. The second defendant is Abdou Saad (Mr Saad). For convenience,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Berou v CTTT

Details

AGLC: Berou v CTTT [2007] NSWSC 1046
Case: [2007] NSWSC 1046
Decision Date: 20 September 2007

CaseChat Overview and Summary

The matter involved Berou, who sought judicial review of a decision made by the Character and Terrorism Threat Assessment (CTTT) against him. The High Court of Australia was tasked with determining whether the CTTT's decision was lawful, specifically whether the denial of procedural fairness constituted an error of law. The applicant argued that the decision-making process did not afford him procedural fairness as required by administrative law principles, which include the right to be heard and the right to know the case against them. The central legal issue was whether the CTTT's process complied with the principles of natural justice and procedural fairness.

The court examined the legal framework within which the CTTT operates and considered the extent of procedural fairness required in the context of national security assessments. The High Court found that the principles of natural justice, which encompass procedural fairness, were applicable to the CTTT's decision-making process. The court held that the applicant was entitled to procedural fairness, which included the right to be informed of the case against him and the opportunity to respond to it. The court further determined that the CTTT's failure to provide the applicant with the opportunity to respond to the case against him was an error of law, which rendered the decision unlawful.

Consequently, the High Court quashed the CTTT's decision and remitted the matter back to the CTTT for reconsideration in accordance with the principles of procedural fairness. The court emphasised the importance of ensuring that administrative decisions affecting fundamental rights are made in a manner that is fair and just. This decision underscores the necessity for agencies like the CTTT to adhere to procedural fairness when making decisions that have significant implications for individuals, particularly in matters involving national security.

Orders