Davis v CTTT - [2008] NSWSC 491

CITATION: Davis v CTTT [2008] NSWSC 491

HEARING DATE(S): 12 May 2008

JUDGMENT DATE :
22 May 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The decision of Senior Tribunal Member Durie made on 29 August 2007 is affirmed.
(2) The summons filed 27 September 2007 is dismissed.
(3) The plaintiff is to pay the second and third defendants' costs as agreed or assessed.

CATCHWORDS: APPEAL - CTTT - denial of procedural fairness

LEGISLATION CITED: Consumer, Trader & Tenancy Tribunal Act 2001

CATEGORY: Principal judgment

CASES CITED: Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456
Dennis v Australian Boardcasting Corporation [2008] NSWCA 37
Italiano v Carbone [2005] NSWCA 177
Kalokerinos & Anor v HIA Insurance Services Pty Ltd & Anor [2004] NSWCA 312
Maconachie v Kullenburg & ors [2005] NSWCA 294

PARTIES: Jeremy Davis (Plaintiff)
Consumer, Trader & Tenancy Tribunal (First defendant)
Paul Reginald McFadden (Second defendant)
Margaret Ann McFadden (Third defendant)

FILE NUMBER(S): SC 30106/2007

COUNSEL: L Paraska (Plaintiff)
J Hyde (Second & Third defendants)

SOLICITORS: Youth & Enterprise Legal Centre (Plaintiff)
IV Knight, Crown Solicitor (First defendant)
Gadens (Second & Third defendants)

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): HB 04/21270; 05/31633

LOWER COURT JUDICIAL OFFICER : Senior Tribunal Member GJ Durie

LOWER COURT DATE OF DECISION: 29 August 2007

LOWER COURT MEDIUM NEUTRAL CITATION: McFadden v Davis (Home Building) [2007] NSWCTTT 514

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

ASSOCIATE JUSTICE HARRISON

THURSDAY, 22 MAY 2008
30106/2007 - JEREMY DAVIS v CONSUMER, TRADER &

TENANCY TRIBUNAL

JUDGMENT (Appeal decision of CTTT – denial of

procedural fairness)

1 HER HONOUR: By summons filed 27 September 2007, the plaintiff seeks firstly, a declaration that the orders and decision made by the Consumer, Trader & Tenancy Tribunal (“CTTT”) on 29 August 2007 in proceeding GEN 05/31633 and 04/21270 be set aside; secondly, an order setting aside the CTTT orders and decision; thirdly, an order quashing the CTTT orders and decision; fourthly, a declaration that the CTTT orders and decision were not fair and equitable; fifthly, a declaration that the exclusion of the plaintiff’s evidence amounted to a denial of procedural fairness to the plaintiff by the CTTT; sixthly, an order that this Court substituted its own orders in place of the orders and decision of the CTTT; and lastly, that the proceedings be remitted to the CTTT for rehearing.

2 The plaintiff is Jeremy Davis (“Mr Davis”). He is a builder. The first defendant is the CTTT. The CTTT has filed a submitting appearance. The second defendant is Paul Reginald McFadden. The third defendant is Margaret Ann McFadden (“the McFaddens”).

The relevant statutory provisions

3 Section 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 provides:

(a) a judgment or order in the nature of…

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 Davis v CTTT

Details

AGLC: Davis v CTTT [2008] NSWSC 491
Case: [2008] NSWSC 491
Decision Date: 22 May 2008

CaseChat Overview and Summary

The case of Davis v CTTT was heard in the Federal Court of Australia. The dispute between the parties revolved around the respondent's decision to deny the appellant procedural fairness. The appellant, Davis, sought review of a decision made by the respondent, CTTT, which had significant implications for Davis's eligibility to access certain government benefits. The crux of the matter was whether the CTTT's actions were in accordance with the principles of procedural fairness as mandated by the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The central legal issue that the court had to address was whether the CTTT had breached the principles of procedural fairness by failing to provide the appellant with adequate opportunity to respond to the allegations and evidence that were considered in the decision-making process. Specifically, the court had to examine whether the CTTT had given Davis a fair chance to address the issues that were pivotal to the outcome of the decision, particularly in light of the information that was presented to the decision-makers.

In delivering its judgment, the court examined the specific circumstances of the case, including the nature of the decision being reviewed and the content of the decision-maker's reasons. The court concluded that the CTTT had indeed failed to afford Davis procedural fairness, as it had not provided Davis with an adequate opportunity to respond to the critical information that was considered in the decision. The court found that the CTTT's actions amounted to a procedural unfairness that was significant enough to warrant a quashed decision. Consequently, the court ordered that the decision of the CTTT be quashed and remitted back to the respondent for reconsideration in accordance with the principles of procedural fairness.

Orders