Boensch v Donovan Electrical Services Pty Ltd - [2014] NSWSC 1297

Supreme Court

New South Wales

Medium Neutral Citation: Boensch v Donovan Electrical Services Pty Ltd [2014] NSWSC 1297
Hearing dates: 4 July 2014
Decision date: 24 September 2014
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1)Proceedings dismissed;
(2)The plaintiff to pay the first defendant's costs of and incidental to the proceedings on the ordinary basis forthwith after they have been agreed or assessed.

Catchwords: ADMINISTRATIVE LAW - judicial review - decision of Consumer, Trader and Tenancy Tribunal - denial of natural justice - ex parte hearing - whether there should have been a rehearing on the ground that party not present due to medical reasons - whether refusal of application to grant rehearing constituted a denial of natural justice
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (Repealed), ss 25, 35, 49, 68
Civil Procedure Act 2005 (NSW), s 91
Cases Cited: Aida v Concrete Concepts (Aust) Pty Ltd [2013] NSWSC 72
Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 353
Allianz Australia Limited v Kerr [2012] NSWCA 13
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Birkett v James [1978] AC 297
Burrell v R (2008) 238 CLR 218
Commissioner of Police v Tanos (1958) 98 CLR 383
Craig v South Australia (1995) 184 CLR 163
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1:
Grimshaw v Dunbar [1953] 1 QB 408
in International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319
Kirk v Industrial Relations Commission [2010] HCA 1; 239 CLR 531
Milstern Retirement Services Pty Ltd v Carton [2006] NSWSC 937
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123
Minister for Immigration v Yusuf [2001] HCA 30; 206 CLR 323
Minster for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
QBE (Australia) Limited v Miller [2013] NSWCA 442
Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1
Roger v DeGelder (2011) 80 NSWLR 594
Stead v State Government Insurance Commission (1986) 161 CLR 14
Taylor v Taylor (1979) 143 CLR 1
Woods v Sheriff of Queensland (1895) 6 QLJ 163
Texts Cited: KR Handley, Spencer Bower and Handley Res Judicata (Lexis Nexis, 4th Edition, 2009)
Category: Principal judgment
Parties: Franz Boensch (Plaintiff)
Donovan Electrical Services Pty Ltd (First Defendant)
Consumer Trader and Tenancy Tribunal (Second Defendant)
Representation: Counsel: A Kumar (Plaintiff)
JA Button, solicitor (First Defendant)
Solicitors:

File Number(s): 2013/305926

Judgment

Mr Boensch, by application for judicial review, challenges the legality of three decisions made against him in the former Consumer Trader and Tenancy Tribunal. The application is opposed by the successful party, Donovan Electrical Services Pty Ltd which I will refer to as Donovan Electrical.

The first decision was made on 30th…

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.

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Details

Case: [2014] NSWSC 1297
Decision Date: 24 September 2014

CaseChat Overview and Summary

In the case of Boensch v Donovan Electrical Services Pty Ltd, the respondent, Boensch, sought judicial review of a decision made by the Consumer, Trader and Tenancy Tribunal, which had dismissed his claim against the appellant, Donovan Electrical Services Pty Ltd. The claim was related to an alleged breach of consumer guarantees by the appellant in relation to a dishwasher installation. The primary issue before the court was whether the Tribunal's decision to deny Boensch's application for a rehearing of the matter constituted a denial of natural justice, as Boensch had not been present at the original hearing due to medical reasons.

The court considered whether the absence of Boensch from the original hearing constituted a procedural unfairness that warranted a rehearing. It was noted that the Tribunal had discretion under the relevant legislation to grant a rehearing if it considered it just and equitable to do so. However, the court found that the Tribunal's decision to deny the application for a rehearing was not unreasonable, as Boensch had not demonstrated any prejudice resulting from his absence or any exceptional circumstances that warranted a rehearing. The court also found that the Tribunal had considered all relevant evidence and arguments presented by both parties before making its decision.

Based on the above findings, the court dismissed Boensch's application for judicial review. The court held that the Tribunal's decision to deny a rehearing did not constitute a denial of natural justice, as Boensch had not been deprived of a fair opportunity to present his case. The court emphasised that the principles of natural justice are not absolute and must be balanced against other considerations, such as the efficiency and effectiveness of the Tribunal's processes. The court also noted that the Tribunal had acted within its discretion in denying the application for a rehearing.

Orders