Grygiel v Consumer Trader and Tenancy Tribunal

[2004] NSWSC 914

CITATION:	Grygiel v Consumer Trader & Tenancy Tribunal & Ors [2004] NSWSC 914
HEARING DATE(S):	1 October 2004
JUDGMENT DATE:	5 October 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass at 1
DECISION:	The summons is dismissed; the plaintiff is to pay the costs of the proceedings.
CATCHWORDS:	Appeal against the granting of an adjournment - plaintiff not given an opportunity to be heard - Tribunal did not decide a question with respect to a matter of law - futility of granting relief.
LEGISLATION CITED:	Consumer Trader & Tenancy Act 2001, s28(5), s34, s35, s67
PARTIES :	Christopher Andrew Grygiel (Plaintiff) Consumer Trader & Tenancy Tribunal (First Defendant) Anthony J Baine (Second Defendant) Janice Wiley (Third Defendant) Blakemore Electrical Services Pty Limited (Fourth Defendant)
FILE NUMBER(S):	SC 30043 of 2004
COUNSEL:	Dr D Doyle (Solicitor) (Plaintiff) Ms E Olssen SC (Second and Third Defendant)
SOLICITORS:	The Builders' Lawyer (Plaintiff) Crown Solicitor (First Defendant) MasseyBailey (Second and Third Defendant) MBP Legal (Fourth Defendant)

LOWER COURTJURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	HB 02/48685 HB 02/32025
LOWER COURT JUDICIAL OFFICER :	Registrar CTTT

- 5 -

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

Master Malpass

5 October 2004

30043 of 2004 Christopher Andrew Grygiel v Consumer Trader & Tenancy Tribunal & Ors

JUDGMENT

1 Master: The parties are involved in a building dispute presently before the Consumer Trader & Tenancy Tribunal (the Tribunal). It has become a saga generating strong emotions.

2 Whilst those proceedings were on foot, the plaintiff commenced proceedings 30088 of 2003 in this court. The purpose of these proceedings was to propound an appeal against various interlocutory decisions and costs orders that had been made by the Tribunal. The appeal was dismissed on 20 August 2004. Further appeal was made to the Court of Appeal on 18 May 2004. It was dismissed by the Registrar by reason of incompetence (failure to seek leave). There is now an appeal from that decision.

3 On 4 March 2004, the Tribunal fixed a date for a directions hearing (to be held on 17 May 2004) for the building dispute.

4 By facsimile transmitted on 11 May 2004, the solicitor for the second and third defendants communicated with the Tribunal. In that communication, a request was made to defer any directions hearing until after the time for the filing of an appeal had passed (time expired on 18 May 2004). The plaintiff was advised of this communication. There was subsequent oral communication between the parties. The Tribunal adjourned the directions hearing to a date to be fixed. This action provoked complaint from the plaintiff (see letter dated 14 May 2004). One matter of expressed concern was delay in inspection of the subject premises. The plaintiff also advised of a wish to make application for costs thrown away by reason of the adjournment. He further raised the matter of reversal of the adjournment.

5 The Tribunal responded by letter dated 26 May 2004. It contained the following:-

There was insufficient time for the Tribunal to seek comments from the builder as to the homeowners’ application that the directions hearing set down for 18 May 2004 be adjourned.
The homeowners’ application was dated 11 May 2004, and was forwarded to myself to decide on it on 14 May. There appeared, on the face of it, to be no prejudice flowing to the builder if the adjournment was granted. Furthermore, it seemed good case management not to have a directions hearing of a matter that is under the scrutiny of the Supreme Court.
The Tribunal did what appeared to be fair and equitable in the circumstances surrounding the homeowners’ application.
I am unable to entertain your application for costs. It will have to be put to and entertained by the presiding Member. I understand that the matter has been listed for directions by the Registrar on 30 June 2004, 10.00am.

6 Subsequently, the plaintiff commenced these proceedings (by summons filed on 11 June 2004). It seeks inter alia:-

1. A declaration that the order made in the Consumer, Trader and Tenancy Tribunal (“the Tribunal”) on 14 May 2004 in the matters No. HB 02/48685 and No. HB 02/32025 was made in breach of procedural fairness.
2. A declaration that the order made in the Consumer, Trader and Tenancy Tribunal (“the Tribunal”) on 14 May 2004 in the matters No. HB 02.48685/ and No. HB 02/32025 was ultra vires.
3. A declaration that the order made in the Consumer, Trader and Tenancy Tribunal (“the Tribunal”) on 14 May 2004 in the matters No. HB 02.48685/ and No. HB 02/32025 was ultra vires.

7 Prior to the filing of the summons, the Tribunal had appointed a further directions hearing (to be held on 30 June 2004).

8 On 6 July 2004, the second and third defendants filed a notice of motion. In effect, it seeks summary dismissal of the summons.

9 Since the bringing of the appeal, there have been two directions hearings before the Tribunal. The first was held on 30 June 2004. Directions were given (including a direction inter alia dealing with the matter of inspection and a direction that the proceedings were not to be listed before January 2005). The second was held on 2 September 2004.

10 Although these hearings have taken place, it seems to be accepted by both parties that the further conduct of the Tribunal proceedings must abide the disposition of the latest appeal.

11 The plaintiff has filed a statement of grounds for appeal. It purports to raise various matters (including failure to hear the plaintiff on the adjournment application, acting in breach of the requirements of the Consumer Trader & Tenancy Tribunal Act 2001 (the Act), acting with improper purpose, failing to take into account relevant considerations, taking into account irrelevant considerations (including the appeal) and acting unreasonably in the Wednesbury sense).

12 Despite the assertion of this variety of grounds, what was in fact argued fell within a narrow compass (alleged denial of procedural fairness because the plaintiff was not given an opportunity to be heard on the adjournment application and alleged error of law because of non-compliance with statutory provisions).

13 Before proceeding further, I should observe that s67 of the Act confers a narrow avenue of relief (where the Tribunal decides a question with respect to a matter of law). Where error in deciding such a question has been demonstrated, relief may be granted if the error justifies the disturbing of the decision of the Tribunal.

14 By consent, the court heard both the appeal and the notice of motion contemporaneously.

15 I am bewildered at the bringing of this appeal. It is devoid of utility. It is another instance of the numerous appeals coming to this court concerning interlocutory matters and/or costs.

16 There is little need to venture into the territory of what might be loosely described as the merits of this appeal. It can be disposed of for other reasons.

17 For completeness, I mention that the plaintiff has referred to certain provisions, (including s34 of the Act).

18 The Tribunal has power or jurisdiction to adjourn proceedings (s28(5)). It is misconceived to say that the granting of the adjournment was ultra vires. The Tribunal has obligations under s35 (which relate to the obligation had by the it to ensure that each party is given a reasonable opportunity to present the party’s case and to make submissions). I shall return to this matter in due course.

19 In my view, there is no need to further pursue questions of statutory compliance in this case. By the time that this appeal had been brought, the adjournment was a matter of past history and there was nothing that the court could effectively do about it (even if it was persuaded that there was any reason so to do).

20 I may add that the granting of the adjournment was of little consequence to the plaintiff. A further directions hearing was allocated prior to the bringing of the appeal and at that hearing the matter of concern for the plaintiff was addressed.

21 In my view, rather than take the course that he did, the interests of the plaintiff would have been better served by promptly moving in the Tribunal for a further directions hearing.

22 I am not satisfied that there has been error that invokes the provisions of s67. Whether or not there has been any denial of procedural fairness, I am not satisfied that the plaintiff has any entitlement for relief in this case. It would have been futile to make the declarations sought by the plaintiff. The court does not make declarations which have no utility. In my view, the appeal fails.

23 The appeal seems to have been motivated inter alia by a sense of outrage concerning the manner in which the Tribunal is said to be conducting its business. It was asserted that it was now a body “out of control”. The sense of outrage appeared to concern failure to have established procedures and/or failure to comply with statutory requirements.

24 In this case, the plaintiff was not given an opportunity to be heard on the adjournment application. Be that as it may, it seems to me that the intention of the Tribunal in granting the adjournment was well-meaning (to save the parties the time and expense of what was thought to be a pointless attendance before it by reason of the proposed appeal). What it did does not generate any entitlement to relief in this case.

25 In other judgments, I have drawn attention to the problems that can be thrown up when applications are dealt with otherwise than before a Tribunal member.

26 The Tribunal is obliged to accord procedural fairness to all parties. It should give all parties a reasonable opportunity to be heard on any adjournment application.

27 For completeness, I return to the notice of motion. A party seeking the discretionary remedy of summary dismissal bears the onus of demonstrating what may be described as a clear case. In my view, that onus has been discharged. I consider that this appeal should not have been brought. Apart from the needless incurring of further costs, it unnecessarily took up valuable court time.

28 The summons is dismissed. The plaintiff is to pay the costs of the proceedings.

Last Modified: 10/06/2004