Guo v CTTT

[2007] NSWSC 1335

CITATION:

Guo v CTTT & Anor [2007] NSWSC 1335

HEARING DATE(S):

16 November 2007

 
JUDGMENT DATE : 

23 November 2007

JURISDICTION:

Common Law Division - Administrative Law List

JUDGMENT OF:

Associate Justice Harrison

DECISION:

(1) The appeal is dismissed; (2) The decision of Tribunal Member Borsody dated 16 April 2007 is affirmed; (3) The amended summons filed 3 September 2007 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS:

Appeal, review of CTTT - procedural fairness

LEGISLATION CITED:

Consumer Claims Act 1998 (NSW) - s 13
Consumer Trader & Tenancy Tribunal Act 2001 (NSW) ss 35, 65, 67
Fair Trading Act 1987 (NSW) - s 13(1)(d)

CASES CITED:

Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA
Italiano v Carbone [2005] NSWCA 177
Jung v Son NSWCA, 18 December 1998, unreported
Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA
Maconachie v Kullenburg & Ors [2005] NSWCA
Milstern Retirement v Carton [2006] NSWSC 937

PARTIES:

Alan Xiong Guo - Plaintiff
Consumer Trader and Tenancy Tribunal - First Defendant
George Behjan bht Ramon Behjan - Second Defendant

FILE NUMBER(S):

SC 30044/2007

COUNSEL:

Ms R M Henderson - Second Defendant

SOLICITORS:

Louise Butt Lawyers - Plaintiff

Submitting Appearance
Mr I V Knight, Crown Solicitor -First Defendant

Mr M Grinsberg
Office of Fair Trading - Second Sefendant

LOWER COURT JURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	GEN 07/14692
LOWER COURT JUDICIAL OFFICER :	Tribunal Member Borsody
LOWER COURT DATE OF DECISION:	16 April 2007

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

ASSOCIATE JUSTICE HARRISON

FRIDAY, 23 NOVEMBER 2007

30044/2007 - ALAN XIONG GUO v
CONSUMER TRADER AND TENANCY TRIBUNAL & ANOR
JUDGMENT (Appeal, review of CTTT;
procedural fairness)

1 HER HONOUR: By amended summons filed 3 September 2007, the plaintiff seeks firstly, an order allowing this appeal and dismissing the second defendant’s application to the Consumer Trader and Tenancy Tribunal (CTTT) in GEN 07/14692; secondly, in the alternative, that in accordance with s 67(3) of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW) (CTTT Act) and in the application of s 13 of the Consumer Claims Act 1998 (NSW) the Tribunal should have found that no refund was payable by the plaintiff to the second defendant and that the goods were not returnable by the second defendant to the plaintiff; thirdly, that the matter be remitted to the Tribunal for rehearing and to be redetermined in accordance with s 67(3) of the CTTT Act; fourthly, an order that the orders made by Tribunal Member A Borsody on 16 April 2007 were vitiated by errors of law; fifthly, an order that the orders were made in circumstances which amounted to a denial of procedural fairness; and sixthly, an order in the nature of certiorari ordering removal of the record of the proceedings before the CTTT to this Court and quashing the orders.

2 The plaintiff is Alan Xiong Guo (Mr Guo). The first defendant, the CTTT, has filed a submitting appearance. The second defendant is George Behjan by his tutor Ramon Behjan (Mr Behjan). Mr Guo relied on his affidavits dated 26 April 2006 and 30 August 2007 and the affidavit of Angela Yuan Zhang dated 23 May 2007. While Mr Guo was legally represented at the hearing of these proceedings, no interpreter was present.

3 On 9 July 2007 the Minister for Fair Trading, Linda Burney, pursuant to s 13(1)(d) of the Fair Trading Act 1987 (NSW), approved Lyn Baker, as the Commissioner for Fair Trading, granting an application for legal assistance to the second defendant in these proceedings. Ms Henderson appeared for the Commissioner. Mr Ramon Behjan was also present in Court.

The relevant statutory provisions

4 Section 65 of the CTTT Act provides:

“(1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of:


(a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or

(b) a declaratory judgment or order, or

(c) an injunction,
in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter.”

5 Section 65(3) however provides:

“(3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that:


(a) the Tribunal 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.”

6 Prerogative relief under s 65(1)(a)(a) of the CTTT Act is discretionary and may be refused where there has been delay on the part of the applicant or it can be said that the applicant has waived or acquiesced in the validity of the decision (Italiano v Carbone [2005] NSWCA 177 per Basten JA at [117]; Maconachie v Kullenburg & Ors [2005] NSWCA 294 per McColl JA (Giles JA agreeing) at [59]).

7 Section 67 of the Act 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 Tribunal (s 67(8)). The onus lies on the plaintiff to demonstrate that there has been an error with respect to a matter of law.

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

9 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”.

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

The Tribunal generally

11 At the outset, it is helpful to set out some of the provisions of the 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 the Tribunal is accessible, its proceedings are efficient and effective, its decisions are fair and to enable proceedings before the Tribunal 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).

12 Evidence must be given on oath or statutory declaration (s 39(1)) but the Tribunal is not bound by the rules or practice of evidence and the Tribunal 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 to recover amounts ordered to be paid (s 51). I shall discuss s 28, 35 and 37 in more detail later in this judgment

Grounds of appeal

13 Mr Guo appeals the whole of the decision of the CTTT made on 4 June 2007 firstly, on the grounds that he was denied procedural fairness; secondly, that the Tribunal Member erred in the application of s 13 of the Consumer Claims Act 1998; thirdly, that the Tribunal Member failed to provide sufficient reasons.

Background

14 From 1 November to 27 December 2005, Mr George Behjan made purchases from Living Budget Homewares totalling $17,082.90. These purchases varied from one purchase per day to 18 purchases in one day of figurines and statutes with a particular penchant for statutes of Buddha.

15 On 29 November 2006, the Guardianship Board appointed Ramon Behjan as the financial manager for George Behjan.

16 On 13 March 2007, Mr Ramon Behjan filed an application in the CTTT seeking a “refund of statues and figurines purchased over a period of two months by a mentally ill person, George Behjan) managed by Ramon Behjan. It was also stated on the application that “goods amounting to over $17,000 were sold during November and December to a mentally ill person unconscionably.”

17 On 16 April 2007, the matter was heard in the CTTT. The Tribunal Member made orders firstly, that Mr Guo was to pay Mr Behjan the sum of $10,000 on or before 7 May 2007; secondly, Mr Behjan was to return to Mr Guo the goods purchased except for those purchased on 1 and 2 November 2005. On 4 June 2007, the Tribunal Member gave written reasons.

Procedural fairness in Tribunal

18 The plaintiff submitted that he was denied procedural fairness because firstly, he had difficulty in understanding questions put to him; secondly, the Tribunal Member had difficulty understanding his answers, such that the Tribunal Member should have enquired as to whether he required an interpreter; thirdly, the Tribunal Member did not enquire as to whether he required additional witnesses; fourthly, The Tribunal Member did not offer him an adjournment; fifthly, did not invite him to cross examine Mr Behjan; sixthly, the Tribunal Member permitted an unidentified male person to be present at the hearing; and finally, the Tribunal Member did not allow him to make additional submissions after the Tribunal Member had given her judgment. Mr Guo has produced an affidavit of his wife to show that she could have given evidence concerning her dealings with George Behjan.

19 The second defendant submitted that the plaintiff was not denied procedural fairness.

20 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.

…”

21 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.”

22 Mr Guo speaks English as his second language. He first language is Mandarin.

23 Section 37 of the CTTT Act reads:

“(1) A person may, in any proceedings, request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person.

(2) The Tribunal must comply with a request made by a person under this section unless it considers that the person is sufficiently proficient in spoken English.

(3) If the Tribunal considers that a person in any proceedings is not sufficiently proficient in spoken English, the Tribunal must appoint an interpreter for the purposes of communication between the Tribunal and the person, even though the person has not made a request under this section.

(4) …”

24 Mr Guo appeared unrepresented. Mr Ramon Behjan appeared unrepresented. No witnesses were present. At the outset, the Tribunal Member asked Mr Guo whether he had everything he needed, whether he had shown documents to Mr Behjan, what evidence he was going to provide, whether he had documents, and whether he was ready (t 2-4). Mr Guo informed the Tribunal Member that he had some documents that he had not shown Mr Behjan but they were not relevant to the case. Then he said that he did not think that he needed to bring anything in this case. When Mr Guo was asked whether he was ready he replied “Yes”.

25 Copies of receipts issued by Living Budget Homewares were produced by Mr Behjan. There were also photographs depicting the statutes and figurines. There was also medical certificates from two psychiatrists (February 2006) stating that Mr George Behjan suffered from a mental illness and had been very unwell over the past six months and that this had led to some significant impairment of judgment and inappropriate purchase of goods.

26 The Tribunal Member asked Mr Guo if he had seen some photographs and Mr Guo replied that he had. At one stage Mr Guo interrupted Mr Behjan’s evidence about the behaviour of his brother George. The Tribunal Member then explained that Mr Behjan would present his case first and then Mr Guo would present his case. Mr Guo replied “Sorry Ma’am”.

27 The Tribunal Member asked Mr Guo to give an account of what had happened. Mr Guo told of Mr George Behjan’s purchases at his shop and Mr Ramon Behjan’s disclosure to him that George had a mental illness. When asked if he had anything further to say Mr Guo referred to the size of his shop, how he had to reorder items each time George bought them, and the problem he would have reselling the items without their packaging. He explained that 30% of the value of the items was packaging (t 8-9). On each occasion Mr Guo responded as if he understood the question. It is my view that Mr Guo appeared to have had a clear appreciation of the nature of the proceedings and the issues that the Tribunal had to determine.

28 In order to fully assess Mr Guo’s proficiency in spoken English this Court listened to the tape of the proceedings before the Tribunal Member and carefully read the transcript. It is my view that Mr Guo understood what was being said and was able to express himself in English in a proficient manner at the hearing in the Tribunal.

29 As stated in Milstern Retirement v Carton [2006] NSWSC 937 at [43] it is not the role of a Tribunal Member to ensure that each party’s case is prepared and represented at its highest. However, Section 35 of the CTTT Act 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]. The Tribunal Member has flexibility. It is not necessary for the Tribunal to insist that cross examination takes place in every case. Nor was it necessary here.

30 In relation to the unknown male person being present, in the transcript he is referred to as a Tribunal Member. This male person asked Ramon Behjan if photographs that he showed to the Tribunal were taken in Mr George Behjan’s flat and Mr Behjan replied that they were. He also stated “We’ll just adjourn for five minutes”. It may be that the male person was being trained as a Tribunal Member or perhaps another Tribunal Member.

31 As for the submissions made after the Tribunal Member gave her extempore decision, Mr Guo asked how he went about appealing her decision. Mr Guo is raising the same issue that he raised before the Tribunal Member, namely that he did not see that Mr George Behjan had mental problems from the start.

32 While perhaps it would have been more prudent if the Tribunal Member had at the outset outlined the procedure she wished to adopt at the hearing, it is still my view that the plaintiff had a reasonable opportunity to be heard and make submissions. He was able to give his version of events and explain why he should not be ordered to refund the money.

The application of s 13 of the Consumer Claims Act

33 Section 13 of the Consumer Claims Act provides:

“Matters to be taken into account by Tribunal when making orders under this Part

(1) When making an order or orders under this Part, the Tribunal must make such orders as, in its opinion, will be fair and equitable to all the parties to the claim.

(2) Without limiting subsection (1), when the Tribunal is considering whether or not to make an order or orders under this Part, the following factors are relevant, so far as they are material to the particular circumstances of the case:


(a) whether or not there was any material inequality in bargaining power between the parties to the claim,

(b) whether or not:


(i) any party to the claim was not reasonably able to protect the party’s interest, or

(ii) any person who represented any of the parties to the claim was not reasonably able to protect the interests of any party represented by that person,
because of the age or physical or mental capacity of that party or person,

34 The Tribunal Member delivered extempore reasons and on 4 June 2007 she provided written reasons. The Tribunal Member summarised (t 9-11) Mr Guo’s case as follows.

“…basically the Tribunal has to take into account a whole range of things but Section 13 of the Consumer Claims Act says that the Tribunal must make such orders as in its opinion will be fair and equitable to all the parties and there are specific things that need to be taken into account, one which is whether or not any party to the claim was not reasonably able to protect the party’s interests because of the age or physical or mental capacity of that party or person. And I think given the evidence that I think is overwhelming, Mr George Behjan was not in a position to protect his own interest.
He was suffering from a mental illness to the extent that the Guardianship Tribunal has stepped in and appointed a guardian. Now, it’s not always easy for somebody outside to make any sort of decision or understand what’s happening but at some point it must have become apparent to Mr Guo that Mr Behjan was not able to protect his interest and was not really making rational decisions. So, it seems to me the first two days which, after all, amounted to some – the first days of this, 1 and 2 of November, 20 items and $2,800 worth. Up to that point, okay, maybe you thought you had somebody who simply liked a lot of stuff.

I think from that point onwards it’s no longer feasible to say this was just a shopper who liked a lot of things. I think at that point it becomes clear that this is somebody who has an incapacity. I also accept that what the respondent would get back is not exactly the same as what the respondent sold because (sic) have been taken out of their packaging and I’m prepared to make an allowance for that. It seems to me that allowing for that 2,800 taken off the total and allowing a certain amount for packaging, $10,000 refund.”

35 It is my view the Tribunal Member considered the matters raised by both parties and assessed what in her opinion was fair and equitable to them. The Tribunal Member’s reasons demonstrate that she understood the case that Mr Guo put forward. She correctly applied the provisions of s 13 of the Consumer Claims Act. The Tribunal Member’s reasons make it clear what she was deciding and why – see Jung v Son NSWCA, 18 December 1998, unreported.

36 It is my view that the plaintiff was afforded procedural fairness. There was no error of law. The appeal is dismissed. The decision of Tribunal Member Borsody dated 16 April 2007 is affirmed. The amended summons filed 3 September 2007 is dismissed.

37 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant’s costs as agreed or assessed.

The Court orders:

(1) The appeal is dismissed.

(2) The decision of Tribunal Member Borsody dated 16 April 2007 is affirmed.

(3) The amended summons filed 3 September 2007 is dismissed.

(4) The plaintiff is to pay the defendant’s costs as agreed or assessed.
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