D'Angola v CTTT

[2006] NSWSC 1023

CITATION:	D'Angola & Anor v CTTT & Anor [2006] NSWSC 1023
HEARING DATE(S):	25 September 2006
JUDGMENT DATE :	29 September 2006
JURISDICTION:	Common Law Division - Administrative Law List
JUDGMENT OF:	Associate Justice Harrison
DECISION:	(1) The appeal is granted; (2) The decision of the Tribunal Member dated 29 November 2005 is set aside; (3) The matter is remitted to the CTTT for rehearing; (4) The second defendant is to pay the plaintiffs' costs as agreed or assessed. The second defendant is to have a certificate under the Suitor's Fund Act if applicable.
CATCHWORDS:	Appeal decision of CTTT - non receipt of notice of hearing
LEGISLATION CITED:	Acts Interpretation Act (Qld) Consumer, Trader and Tenancy Tribunal Act 2001- ss 27, 28, 33, 35, 36, 50, 53, 54, 39, 65, 67, 68 & 78 Consumer Trader and Tenancy Tribunal Regulations 2002 - Reg 29 Interpretation Act 1987 (NSW) - s 76 Suitor's Fund Act
CASES CITED:	Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456 Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 Italiano v Carbone & Ors [2005] NSWCA 177 Kalokerinos & Anor v HIA Insurance Services Pty Ltd & Anor [2004] NSWCA 312 Mah v Consumer Trader & Tenancy Tribunal & Anor [2005] NSWSC 476 Rowlands v Consumer, Trader & Tenancy Tribunal [2003] NSWSC 730
PARTIES:	Gerardo D'Angola - First Plaintiff Donato D'Angola - Second Plaintiff t/as Gedon Concreting Consumer, Trader & Tenancy Tribunal - First Defendant Diana Brett - Second Defendant
FILE NUMBER(S):	SC 30051/2006
COUNSEL:	Mr B Neild - Plaintiffs Mr A Hourigan - Second Defendant
SOLICITORS:	Submitting Appearance - First Defendant
LOWER COURT JURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	HB 05/46540
LOWER COURT DATE OF DECISION:	29 November 2005

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

ASSOCIATE JUSTICE HARRISON

FRIDAY, 29 SEPTEMBER 2006

30051/2006 - GERARDO D’ANGOLA t/as
GEDON CONCRETING & ANOR v
CONSUMER, TRADER & TENANCY TRIBUNAL & ANOR
JUDGMENT (Appeal decision of CTTT – non receipt of
notice of hearing)

1 HER HONOUR: By summons filed 19 April 2006 the plaintiffs seek firstly, an order that time be extended to allow them to appeal the orders made by the Consumer, Trader and Tenancy Tribunal (the CTTT) in proceedings HB 05/46540 on 29 November 2005 and 17 February 2006; secondly, an order that the orders made by the CTTT in proceedings HB 05/46540 on 29 November 2005, 17 February 2006 and 21 March 2006 be set aside; and thirdly, an order that the matter be remitted to the CTTT for rehearing.

2 The first plaintiff is Gerardo D’Angola. The second plaintiff is Donato D’Angola. The first and second plaintiffs trade as Gedon Concreting (Gedon). The first defendant is the CTTT, who has filed a submitting appearance. The second defendant is Diana Brett (Mrs Brett). Gedon relied on the affidavit of Gerardo D’Angola dated 31 May 2006, the affidavit of Donato D’Angola dated 31 May 2006, the affidavit of Caterina D’Angola dated 31 May 2006. and the affidavit of John De Mattia dated 31 May 2006. Gerardo D’Angola is the father and Donato D’Angola is his son. They work together in the concreting business, Gedon. Mrs Brett relied on her affidavit dated 6 July 2006 and the affidavit of Arthur Ronald Brett dated 6 July 2006. All of the deponents (with the exception of Mrs D’Angola) were cross examined. While I carefully observed each witness when they gave evidence and were cross examined, I am unable to make any useful comments concerning their demeanour. Each of the witnesses’ evidence did not strictly accord with the evidence contained in their affidavits on the critical issue of whether the D’Angolas received a notice of hearing or not I accept their evidence.

Sections 65 and 67 of the CTTT Act

3 It appears that ss 65 and 67 of the Consumer, Trader and Tenancy Act 2001 (NSW) are relied upon. Section 65(3) provides that a court is not prevented from granting relief or a remedy in the form of a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or a declaratory judgment or order, or an injunction, in relation to a matter in respect of which the CTTT has made an order if the ground on which the relief or remedy is sought is that (a) the CTTT had no jurisdiction to make the order, or (b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness.

4 Section 67 allows for an appeal to be made to this court on a question with respect to a matter of law. A reference to a matter of law includes a reference to a matter relating to the jurisdiction of the CTTT. The onus lies with the plaintiff to demonstrate that there has been an error with respect to a matter of law.

5 The width of s 67 was discussed in Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456. Hodgson JA (with whom Beazley and Tobias JJA agreed) stated succinctly [at para 33]:

“… in my opinion, to establish an error of law by the Senior Member, it was necessary to show that he applied a wrong principle of law. That could be shown either from what he said, or because the ultimate result, associated with the facts that he expressly or impliedly found, indicates that he must have applied the wrong principle of law”.

6 See also Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312 at paragraphs [39], [40], [41], [47] and [59].

7 Section 67(3) of the CTTT Act provides that, after deciding the question, the subject of an appeal, the Court may affirm the decision of the CTTT, or it may make an order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the CTTT, or may remit its decision on the question to the CTTT and order a rehearing of the proceedings by the CTTT.

The Tribunal generally

8 At the outset, it is helpful to set out some of the provisions of the CTTT Act. The functions of the Tribunal are to adjudicate disputes between consumers and commercial disputes between landlords and tenants. The Tribunal is not constrained by the rigour of the courtroom. Its objects are to ensure that it is accessible, its proceedings are efficient and effective, its decisions are fair and to enable proceedings before it to be determined in an informal, expeditious and inexpensive manner. The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 28(3)).

9 Evidence must be given on oath or statutory declaration (s 39(1)) but the Tribunal is not bound by the rules of evidence and it may inform itself on any matter, in such manner, as it considers appropriate (s 28(2)). The Tribunal must conform to the rules of natural justice, but broadly speaking, has control of and responsibility for its own procedures (s 28(1) and (2)). Its business is conducted in public (s 33). Section 35 provides that the Tribunal must ensure that each party in any proceedings is given a reasonable opportunity to call or give evidence and otherwise present the party’s case (whether at a hearing or otherwise); and to make submissions in relation to the issues in the proceedings. Normally, a party to the proceedings has carriage of his or her own case and is not entitled to be legally represented (s 36(1)). The Tribunal has the power to award costs (s 53) but usually each party bears its own costs. Pursuant to s 54 of the Act, the Tribunal is obliged to use its best endeavours to bring the parties to a settlement before making an order. The Tribunal has a power to correct its decision (s 50) and the Registrar can issue a certificate, which operates as a judgment (s 51).

Grounds of appeal

10 Gedon appeals against the whole of the decisions made by the CTTT in proceedings HB 05/46540 on 29 November 2005, 17 February 2006 and 21 March 2006. The grounds of appeal are that firstly, the CTTT denied Gedon procedural fairness by determining the proceedings on 29 November 2005 in the absence of each of the plaintiffs; secondly, the CTTT denied Gedon procedural fairness by failing to give it a reasonable opportunity to call or to give evidence and otherwise present its case and to make submissions in relation to the issues in the proceeding; and thirdly, the CTTT acted ultra vires by determining the proceedings on 29 November 2005 in breach of s 35 of the CTTT Act in that it failed to give Gedon a reasonable opportunity to call or give evidence and otherwise present its case and to make submissions in relation to the issues in the proceedings.

Background

11 On about 11 November 2004 Mrs Brett engaged Gedon to provide concreting services in relation to the construction of a concrete floor for a garage, concreting and stencilling of a driveway and the making and fitting of a concrete lid to a water tank at her premises at Werrington. Between 11 November 2004 to about 2 December 2004 Gedon undertook the concreting works. At the hearing before this Court there was conflicting evidence between the parties concerning conversations about the rectification work and who was to pay for the water tank lid.

12 On 7 September 2005 Mrs Brett filed an application with the CTTT, seeking an order that Gedon pay the sum of $6,000 for rectification work to the concreting and the replacement of the water tank lid. On 29 November 2005 the Tribunal Member heard the matter in the absence Gedon and made an order that Gedon pay Mrs Brett the sum of $5,837.00 on or before 6 December 2005.

Prior dealings with Office of Fair Trading

13 On 12 April 2005, Jane Dolan, Customer Service Officer at the Office of Fair Trading received a call from Mrs Brett. Ms Dolan subsequently made a telephone call and spoke to Donato D’Angola. Ms Dolan’s file note of the conversation with Ms Brett (Ex 2) reads:

“Spoke with the C [Customer] and she advised me that she wants 400.00 reimbursement for the Water tank lid and is wanting reimbursement of them to pay someone to come and repair their work.”

14 Ms Dolan then spoke to Donato D’Angola. Her file note records:

“Rang the T [Trader] and Spoke to Don (partner) advised him of the problem he advised me that he had been speaking to Arthur and C and advised the C that if he gets the metal tank lid then he will pay for it the T is going to go to C’s house at the end of the week to fix that up I advised the T of the other problems and he advised me that any cracks under 5ml wide is Australian standard and ever thing else that the C has put in her complaint apparently the C was advised of the T is stating that there is no problems.”

15 Arthur is Arthur Brett, Mrs Brett’s husband.

16 In Donato D’Angola’s first affidavit (31/05/2006) at [4] he denied that Ms Dolan had ever contacted him. Later he corrected this statement. Mr Donato D’Angola deposed (Aff, 22/09/2005 [3]) that, after being informed by his solicitor that it appeared from documents produced by the Office of Fair Trading under subpoena that Ms Dolan had spoken to him on 13 April 2005, he then recalled his conversation with Ms Dolan. He believed he said to her “I have been speaking to Arthur about the tank lid and I said I will pay for it. I will have to go around and follow that up by the end of the week.” Donato D’Angola recalled going to Mrs Brett’s home a few days after he had spoken to Jane Dolan and speaking to Mr Brett about the tank lid.

17 There is evidence by Mr Brett that in late October or early November 2005 he had a conversation with Donato D’Angola as follows:

“Donata said “Your wife has taken me to Fair Trading. She has gone too far and will loose (sic).”
I said “The matter is out of my hands. My wife is not happy with the work and I am not her boss.”
Donato said “We would have fixed it up. She shouldn’t have gone to Fair Trading.” (Aff, 6/07/2006 [8])

18 When Mr Brett was cross examined about when this conversation took place, he conceded that he could not really put a time on it. Hence, this conversation could have taken place in April 2005.

19 Donata D’Angola, Caterina D’Angola and Gerardo D’Angola all deny that they received any notice in writing or by telephone from the CTTT about the complaint lodged by Mrs Brett or of the hearing on 29 November 2005. Their evidence is that they first became aware of the CTTT proceedings and of the order against them when the sheriff came to the home of Caterina and Gerardo D’Angola on 15 February 2006 and sought to seize the work vehicle in execution of the writ.

Hearing – 29 November 2005

20 At the hearing before the Tribunal Member, Mrs Brett appeared. There was no appearance by the D’Angolas. In the application form Mrs Brett had named the defendant as “Gedon Concreting (Don or Gerry)”. There is a copy of the notice of hearing on the CTTT file which shows that it was directed to “Gerardo D’Angola and Donata D’Angola Trading As Gedon Concreting” at “22 Jorgensen Avenue St Clair NSW 2759”. That address is the residential address of Gerardo D’Angola and his wife Caterina D’Angola. Donato D’Angola does not reside there. There had not been any directions hearings or prior adjournments granted prior to the hearing. The D’Angolas had not corresponded with the Tribunal prior to the hearing taking place. Hence, this failure to receive this notice of hearing would have been fatal.

21 There are short reasons by the Tribunal Member (which appear at the conclusion of the Notice of Order dated 19 November 2005) that state “The Tribunal found that the surfaces of the driveway and garage were defective, and the respondent has been given since January to rectify.”

22 Section 28 of the CTTT Act reads:

“28 Procedure of Tribunal generally

(1) The Tribunal may, subject to this Act, determine its own procedure.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness.
(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand:

(a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and
(b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings.

(5) The Tribunal
…

(g) may dismiss any proceedings if the applicant fails to attend a hearing, …”

23 Section 35 of the CTTT Act reads:

“Opportunity for parties to present case

The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity:

(a) to call or give evidence and otherwise present the party’s case (whether at a hearing or otherwise), and

(b) to make submissions in relation to the issues in the proceedings.”

24 Section 35 provides that the CTTT “must ensure” that each party is given “a reasonable opportunity” to present its case. There are provisions which allow the CTTT a significant degree of flexibility in adapting its procedures to the exigencies of the case in determining the manner in which the proceedings will be conducted. Nevertheless, those provisions should not be construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness - see Italiano v Carbone & Ors [2005] NSWCA 177 at [105] and [106].

25 Section 78(1) of the CTTT Act provides:

“Notices, service and lodgment of documents

(1) For the purposes of this Act, a notice or document may be given to a person (and a document may be served on a person):

(a) in the case of a natural person—by:

(i) delivering it to the person personally, or
(ii) leaving it at, or by sending it by post to, the residential or business address, or other address for service, of the person that was last known to the person giving or serving the document, or

(b) in the case of a body corporate—by leaving it at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate, …”

26 The Tribunal Member proceeded to hear the matter in the absence of a party, which he or she is empowered to do, provided he or she has been satisfied that the notice of hearing was duly served on the party – see Regulation 29 of the Consumer Trader and Tenancy Tribunal Regulations 2002 (NSW). There are no reasons given by the Tribunal Member that he or she was satisfied that the notice of hearing was duly served on the defendant.

27 Mrs Bretts’ counsel referred to Fancourt v Mercantile Credits Limited (1983) 154 CLR 87, where the Fancourts had given sworn evidence that they did not receive the relevant notices. The High Court noted that it was not contended that this amounted to proof that the appellants had not been served with the notices and added (at 95):

“Such a contention would have been difficult having regard to the fact that there is nothing to show that the notices were not delivered as addressed and having regard to the fact that (the relevant provision) clearly contemplates … service other than personal service.”

28 Their Honours then considered the relevant provision of the relevant Acts Interpretation Acts 1954 to 1962 (Qld). The equivalent section can be found in s 76 of the Interpretation Act 1987 (NSW). However, their Honours noted that, in the absence of the notices having been returned undelivered or any other circumstance which suggested that they did not reach their destination, by the Queensland Acts Interpretation Acts, service was deemed to have been effected at the time when the notices would have been delivered in the ordinary course of the post.

29 Each case depends upon its facts. True it is that in the case before this Court it appears that the document addressed to the defendant was not returned to the CTTT. The D’Angolas have given sworn evidence that they did not receive the notice of hearing. Had there been some correspondence by the D’Angolas to the CTTT or even to Mrs Brett showing they were aware of the proceedings, I would have been satisfied that they were aware of the proceedings. Even if they had attended a prior directions hearing, that may have been sufficient. However, where the defendants did not appear and the Tribunal Member’s reasons are silent as to whether he or she was satisfied that the notice of hearing was duly served on the D’Angolas, amount to a denial of procedural fairness. The D’Angolas’ reasons for rehearing contains a defence on its merits. The appeal is granted. The decision of the Tribunal Member dated 29 November 2005 is set aside. The matter is remitted to the CTTT for rehearing.

30 Costs are discretionary. Costs usually follow the event. The second defendant is to pay the plaintiffs’ costs as agreed or assessed. The second defendant is to have a certificate under the Suitor’s Fund Act 1951 (NSW) if applicable.

The Court Orders:

(1) The appeal is granted.

(2) The decision of the Tribunal Member dated 29 November 2005 is set aside.

(3) The matter is remitted to the CTTT for rehearing.

(4) The second defendant is to pay the plaintiffs’ costs as agreed or assessed. The second defendant is to have a certificate under the Suitor’s Fund Act 1951 (NSW) if applicable.
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