Doyle v Consumer Trader and Tenancy Tribunal

[2005] NSWSC 204

CITATION:	Doyle v Consumer Trader and Tenancy Tribunal & anor [2005] NSWSC 204
HEARING DATE(S):	18/11/04
JUDGMENT DATE :	17 March 2005
JUDGMENT OF:	Hislop J
DECISION:	Summons dismissed. Plaintiff to pay costs of the first and second defendants.

CATCHWORDS:	Administrative Law - CTTT - Procedural matters - Telephone hearing - No denial of procedural fairness.
LEGISLATION CITED:	Consumer Trader and Tenancy Tribunal Act - ss 28, 35, 38(1), 65(3)
CASES CITED:	Entrance to Glamour v Pignat [1999] NSWCA 475
PARTIES:	Plaintiff - David Doyle First Defendant - Consumer Trader and Tenancy Tribunal Second Defendant - Virgin Blue Airlines Pty Limited
FILE NUMBER(S):	SC 30092/04
SOLICITORS:	Plaintiff - in person First Defendant - submitting appearance Second Defendant - submitting appearance

LOWER COURT JURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	GEN 04/41226

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

Hislop J

17 March 2005

30092/04 Dr David Doyle v Consumer Trader and Tenancy Tribunal & anor

JUDGMENT

Introduction

1 The plaintiff, by summons filed in this Court on 19 October 2004, claims:

1. An order in the nature of Mandamus and/or Certiorari under section 65 of the Consumer Trader and Tenancy Tribunal Act requiring the Consumer Trader and Tenancy Tribunal (“the Tribunal”) to remake the decision made on 17 September 2004 in the matter number GEN 04/41226 according to law.
2. A declaration that the order made in the Tribunal on 17 September 2004 in the matter number GEN 04/41226 was made in breach of procedural fairness.
3. Costs of 29 August and 15 October in the Consumer Trader and Tenancy Tribunal and costs of these proceedings;
4. Such further or other orders as the Court thinks fit.

2 The plaintiff’s statement of grounds for appeal filed in this Court on 19 October 2004 states:

The plaintiff appeals from the decision of the Tribunal below
The plaintiff appeals from the decision of the Tribunal on or about 17 September 2004 to allow a telephone hearing on 15 October 2004.
Grounds For Appeal
The Tribunal failed to accord procedural fairness within the meaning of s 65(3) of the Consumer Trader and Tenancy Tribunal Act in that it:
1. Failed to hear the Plaintiff in breach of:
a) The principles of natural justice;
b) The aims and objects of the Act.
2. Failed to give notice to the Plaintiff or permit the Plaintiff to be heard on the issues.

3 The defendants are the Tribunal and Virgin Blue Airlines Pty Ltd. Neither defendant appeared on the hearing in this Court, each having filed a submitting appearance save as to costs.

Background

4 The plaintiff, by written application forwarded to the Tribunal on 30 August 2004, sought an order from the Tribunal that the second defendant pay to the plaintiff the sum of $729. The application asserted the plaintiff purchased an air ticket from the second defendant for its 9pm Brisbane to Sydney flight on 8 August 2004, the flight was cancelled, costs were incurred by him due to such cancellation, those costs comprised $550 for accommodation, $89 for the cancelled air ticket, and $90 for taxi fare.

5 The Tribunal, by notice dated 8 September 2004, advised the plaintiff the application had been listed for hearing in Sydney on 29 September 2004. The notice stated, “Do not bring any witnesses to the first hearing.”

6 By letter dated 15 September 2004 the Tribunal advised that the hearing on 29 September 2004 had been adjourned for hearing on another day to arrange a telephone hearing for the second defendant and that a new hearing date would be advised shortly. This letter appears to have been consequent upon an email dated 15 September 2004 from the second defendant’s Queensland office to the Tribunal which stated, “We request that our evidence be given by telephone on the hearing date.”

7 By notice dated 17 September 2004 the Tribunal advised the plaintiff the application had been listed for hearing on 15 October 2004. The notice stated “RESPONDENT IS TO GIVE EVIDENCE BY TELEPHONE”…..”You should arrange witnesses”.

8 The plaintiff responded by letter to the Tribunal dated 5 October 2004 in the following terms:

We refer to the above matter and to the notice from the Tribunal issued on 17 September 2004 determining that the Respondent is to give evidence by Telephone at the hearing. You have made this decision without reference to the Applicant.

Why was such a decision made and when? We wish to have it on record that we strongly object to the Respondent’s evidence being received by telephone.

9 On 6 October 2004, the Tribunal replied to the plaintiff’s letter dated 5 October 2004 as follows:

Pursuant to section 35 of the Consumer, Trader and Tenancy Tribunal Act 2001, 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.

The Registry procedure in respect of evidence by telephone requires that the Tribunal may allow a person to appear before the Tribunal, or to give evidence, and may conduct any aspect of proceedings before it, by telephone or closed-circuit television, or by any other means of communication, in any circumstances. I note the respondent’s address is interstate. Parties who are interstate are usually granted the right to give evidence by telephone.

Should you require any further information, please do not hesitate to contact the writer.

10 The Tribunal hearing on 15 October 2004 was conducted by a member thereof. The plaintiff attended in person. A representative of the second defendant participated by telephone from Queensland. The Tribunal member offered to review the decision that the second defendant’s evidence be given by telephone. This offer was refused by the plaintiff who indicated he proposed to appeal to the Supreme Court. The plaintiff did not seek to ascertain the nature of the second defendant’s defence nor did he seek any directions in that regard. No evidence was taken and the proceedings were adjourned.

11 Subsequently the application was listed for hearing on 29 November 2004. The notice of such hearing dated 3 November 2004 states, “FOR FORMAL HEARING – BRING WITNESSES”. It made no reference to any evidence being given by telephone. A further notice dated 9 November 2004 also advised the application was listed before the Tribunal on 29 November 2004. The notice was endorsed “[Second defendant] is to give evidence by telephone”. This notice made no reference to the earlier notice dated 3 November 2004. The hearing on 29 November 2004 was adjourned to await the outcome of the summons in this Court.

Discussion

12 The Tribunal has express statutory power to permit oral evidence to be given by telephone – s 38(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (“the Act”) states:

The Tribunal may allow a person to appear before it, or to give evidence in any proceedings, and may conduct any aspect of its proceedings, by telephone, audio-visual link or any other means of communication.

13 The plaintiff’s primary submission was that there had been a denial of procedural fairness pursuant to general principles as complemented by the provisions of the Act, particularly ss 28 and 35 thereof.

14 In support of that submission, the plaintiff contended:

a) A decision had been made between 15 and 17 September 2004 to permit the second defendant to give evidence by telephone on 15 October 2004. This was to be inferred from the letter dated 15 September 2004, and the notice dated 17 September 2004, though a copy of the decision and the reasons for it were not available to the plaintiff.

b) The Tribunal, before reaching that decision, should have determined from the second defendant what the issues were and the evidence likely to be called, and have then determined, after hearing submissions from both parties, whether the giving of evidence on behalf of the second defendant by telephone was appropriate.

c) The plaintiff had not been notified of the intention of the Tribunal to make an order permitting the second defendant to give evidence on 15 October 2004 by telephone. The letter dated 15 September 2004 was not adequate notice in this respect. Thus, the plaintiff had not had an opportunity of being heard on the issue.

d) The prejudice which the plaintiff may have suffered as a result of evidence being taken by telephone was that he would not be able to observe any witness as he cross-examined him or her, he could not see documents from which the witness was reading, he could not see if the witness was using notes to give evidence, he would not be able to observe and draw inferences from the demeanour of the witness.

15 Although there is force in the plaintiff’s contentions, I am unable to accept his primary submission for the following reasons:

a) The plaintiff in his statement of grounds for appeal has appealed “from the decision of the Tribunal on or about 17 September 2004 to allow a telephone hearing on 15 October 2004”. No evidence was given at the hearing on 15 October 2004. The matters of detriment which the plaintiff envisaged could arise from the hearing being conducted by telephone did not arise. Accordingly, I conclude no procedural injustice to the plaintiff has been demonstrated as a result of the second defendant being permitted to participate by telephone in the hearing on 15 October 2004.

b) Additionally, as the hearing on 15 October 2004 has been concluded, no purpose would be served by making any orders in respect of the decision of the Tribunal to allow a telephone hearing on that day.

c) The Tribunal member on 15 October 2004 offered to review the decision that the second defendant’s evidence be given by telephone. This offer was rejected by the plaintiff. In Entrance to Glamour v Pignat [1999] NSWCA 475 Priestley JA (with whom Meagher and Stein JJA agreed) said:

When a party has in substance had a real opportunity of meeting the case against that party, then there will have been no denial of the right to be heard.

The objects of the Act are to enable proceedings to be determined in an informal, expeditious and inexpensive manner (s 3(c) of the Act). The amount in dispute in these proceedings is $729. In my opinion, the Tribunal member on 15 October 2004 afforded the plaintiff a real opportunity of making submissions as to whether the second defendant should be permitted to give evidence by telephone or not. The opportunity was reasonable and appropriate having regard to the amount in issue and the general objects of the Act. Accordingly, in my opinion, there has been no denial of procedural fairness. Alternatively, these circumstances are such that I would refuse the plaintiff’s application on discretionary grounds.

16 It may also be arguable that s 65(3)(b) of the Act does not extend to the determination of interlocutory procedural issues, but it is not necessary to address that question in these proceedings.

17 I am mindful that a further date for hearing is to be set and the issue of telephone evidence may again have to be considered. If these circumstances arise, I would suggest that before the hearing date is set, it would be appropriate for the Tribunal to consider the issue of telephone evidence having regard to the matters referred to in paragraph 14b) above.

18 I note the plaintiff made a number of additional submissions as to the Tribunal’s procedures. These included submissions that related to the provision of unclear, conflicting and potentially misleading notices of hearing, the adjournment of hearings by the Tribunal and fixing of hearing dates without reference to the parties, the failure to require the second defendant to state its defence and provide witness statements, the absence of procedural rules, the failure to make public internal procedural guidelines used in the Tribunal, that procedural powers had not been effectively delegated to Deputy Registrars and the use of ex parte hearings when not sanctioned by the Act.

19 It is not necessary for present purposes to reach any conclusion as to any of those submissions. It would be inappropriate to do so, as they are not referred to in the statement of grounds for appeal and the defendants have filed submitting appearances. In any event, the determination of any of those issues favourably to the plaintiff would not cause me, in the circumstances of this case, to exercise my discretion to grant the relief sought.

Orders

20 I dismiss the summons. The plaintiff is to pay the costs of the first and second defendants.

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