Hanania v CCT

[2000] NSWSC 145

CITATION:

Hanania & Anor v CCT & Anor [2000] NSWSC 145

CURRENT JURISDICTION:

Administrative Law

FILE NUMBER(S):

SC 30101/98

HEARING DATE(S):

22 February 2000

JUDGMENT DATE:

10 March 2000

PARTIES :

Simon Hanania
(First Plaintiff)

Marcella Claudia Hanania
(Second Plaintiff)

The Consumer Claims Tribunal
(First Defendant)

Bruce John Wookey
(Second Defendant)

JUDGMENT OF:

Master Harrison

COUNSEL :	Mr P J Bambagiotti (Second Defendant)
SOLICITORS:	Mr Simon Hanania (First Plaintiff in Person also appeared on behalf of Second Plaintiff) Ms Dina Glass of Michell Sillar (Second Defendant)
CATCHWORDS:	Review decision of CCT - concurrent proceedings in Local Court and CCT - denial of natural justice
LEGISLATION CITED:	Consumer Claims Tribunal Act 1987 Consumer Claim Act 1998 Local Court Act Local Court (Civil Claims) Rules
CASES CITED:	Hutley v Meigan & Ors (1997) ASC 65-370 Singer v Statutory and Other Officers Remuneration Tribunal (1986) 5 NSWLR 633 Archom Pty Limited v Consumer Claims Tribunal & Ors (NSWSC, 29 September 1995, unreported) Kioa v West (1985) 159 CLR 550 Full Brick Homes Pty Limited c Consumer Claims Tribunal & Ors (NSWSC, Rolfe J unreported, 13 February 1997) McClelland v Acmil Industries Pty Limited (1983) 1 NSWLR 615
DECISION:	See para 37

21

THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

MASTER HARRISON

FRIDAY, 10 MARCH 2000

30101/98 - SIMON HANANIA & ANOR v
THE CONSUMER CLAIMS TRIBUNAL &
ANOR

JUDGMENT (Review decision of CCT; concurrent
proceedings in Local Court and CCT;
denial of natural justice)

1   MASTER: The plaintiff by amended summons filed 29 December 1998 seeks an order in the nature of certiorari setting aside the order of the first defendant in claim No TPA97/89 and a declaration that the first defendant had no jurisdiction to determine the claim between the plaintiffs and the second defendant or alternatively a declaration that the first defendant denied the plaintiffs procedural fairness. The plaintiffs are Simon Hanania and Marcella Hanania. They are husband and wife. Mrs Hanania did not attend the hearing as she was unwell. The second plaintiff supplied a medical certificate and a fax. The medical certificate stated that she was unfit for work as she had asthma. The fax gave Mrs Hanania’s husband permission to represent her in these proceedings (Ex B). Mr Hanania represented them in an articulate and knowledgeable manner. He is currently studying law.

2   The proceedings were discontinued by Mapaga Pty Limited as it has been placed in liquidation. The first defendant, the Consumer Claims Tribunal (CCT) has filed a submitting appearance. The plaintiffs relied on the affidavits of Simon Hanania sworn 6 September 1999 and 25 November 1999. The second defendant relied on the affidavit of Dina Glass sworn 29 June 1999. As the parties have been named as both plaintiff and defendants in the Local Court and CCT I shall refer to them by name for convenience.

3   The issues to be decided are firstly whether the Referee continued to hear the matter when there were concurrent proceedings in the Local Court and secondly, whether Mr and Mrs Hanania were denied natural justice when the matter was heard in their absence on 18 August 1998 and 10 September 1998 when their applications for rehearing were refused. There is no appeal in relation to the Referee’s substantive determination made on 19 August 1998.

4   The relevant facts have most helpfully been set out in the Wookeys’ submissions and I have reproduced some of them below.

(1) On 2 December 1996 proceedings were commenced in the Local Court, No 12952/96 (the Local Court proceedings), in relation to the removal and storage of the Wookeys’ goods. The parties were Bruce Wookey and Louise Wookey as plaintiffs, Nicolas Saba t/as Saba’s City Removal as first defendant, Simon Hanania as second defendant, Mapaga Pty Limited as third defendant and Marcella Sammartano as fourth defendant. Marcella Sammartano is now Marcella Hanania.

(2) On 13 February 1997 the Wookeys commenced proceedings in the Tribunal against Mapaga Pty Limited as first respondent, Nick Hanania and Nicola Hanania t/as Saba City Removals as second respondent, Simon Hanania as third respondent, Mapaga Pty Limited (15854) t/as World Maps Removals as fourth respondent and Marcella Sammartano as fifth respondent.

(3) On 21 January 1998 Mrs Hanania challenged the jurisdiction of the Tribunal. Mrs Hanania filed an affidavit. The Tribunal adjourned the hearing on the jurisdiction point pending further evidence. The decision on the jurisdictional point was not given until 1 June 1988.

(4) On 6 March 1998 the Wookeys sought to discontinue the Local Court proceedings. The registrar granted leave for the discontinuance. At the time of the callover a notice of motion filed by Mapaga for leave to cross claim was dismissed. Mr Hanania did not attend this hearing.

(6) On 27 March 1998 Mapaga filed a notice of motion seeking to have its former notice of motion seeking to file a cross claim reinstated and that the orders of 6 March 1998 be vacated.

(7) On 31 March 1998 the second respondent told the Tribunal that the Local Court proceedings were withdrawn.

(8) On 24 April 1998 in a contested hearing the court refused to make the orders sought by Mapaga. The grounds of the refusal were that the matter had already been discontinued and was now defunct.

(9) On 26 May 1998 the tribunal joined Mrs Wookey to the proceedings as a claimant.

(10) On 1 June 1998 the Tribunal issued a ruling as to its jurisdiction (the jurisdiction ruling). The ruling found that the Local court proceedings were withdrawn for the purposes of the Act on 6 March 1998.

(11) On or about 24 July 1998 the Tribunal sent a number of notices to the plaintiffs and Mapaga, notifying them of a hearing to be held on 18 August 1998.

(12) On 18 August 1998 the Tribunal conducted a hearing. The Wookeys attended but there was no appearance for the plaintiffs. As previously stated an affidavit filed by Mrs Hanania was before the Referee.

(13) On 19 August 1998 the Tribunal made a ruling (the substantive ruling). The Referee gave reasons for his decision. The claimants were ordered to pay the Wookeys $8,014.

(14) On 31 August 1998 and 1 September 1998 the plaintiffs applied for a rehearing.

(15) On 10 September 1998 the Tribunal ruled on both applications and refused to grant a rehearing. Detailed reasons were given for this ruling and will be referred to in more detail later in this judgment.

The Law

5 On 1 March 1999 the Consumer Claims Tribunal Act 1987 was repealed by the Consumer Claims Act 1998. The Consumer Claims Act 1998 commenced on 1 March 1999. By virtue of Schedule 1 to the Consumer Claims Act 1998, the Consumer Claims Tribunal Act 1987 applied to matters that had not been finally determined by the Consumer Claims Tribunal. The 1987 Act is applicable in this case.

6   The plaintiff relied on s 12(2) of the Act. Section 12(2)(a)(i) of the Act gives this court the jurisdiction to grant relief in relation to the hearing or determination if the Tribunal has given a ruling under s 26 of the Act which was erroneous. Section 12(2)(b)(ii) of the Act 1987 gives this court the jurisdiction to grant relief in relation to the hearing or determination of the claim if a party has been denied natural justice. No appeal lies to this court where errors of fact or law have occurred.

7   At the outset, it is helpful to set out some of the provisions of the Consumer Claims Tribunal Act 1987. The Tribunal is not constrained by the rigour of the court room. In a sense, its function is to mete out rough justice or at least a less than perfect form of justice in an economical way appropriate for disputes within the limits of its jurisdiction. Evidence before the Tribunal must be relevant to the determination of a claim (s 23(1) of the Consumer Claims Tribunal Act 1987 as amended) and must be given on oath or statutory declaration (s 23(2) - s 23(3)) 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 23(4) - see also s 29(4)). Its business is conducted in private (s 22(1)). There is no requirement that Referees constituting the Tribunal be legally qualified. The orders of the Tribunal must, in its opinion, be “fair and equitable” (s 31(1)). The tribunal has no power to award costs (s 28). Pursuant to s 29 of the Act the Tribunal is obliged to use its best endeavours to bring the parties to a settlement before making any order.

8   In Hutley v Meigan & Ors (1997) ASC 65-370, Rolfe J referred to the often quoted and, if I may respectfully say so, the helpful comments of Hunt J (as he then was) in Singer v Statutory and Other Officers Remuneration Tribunal (1986) 5 NSWLR 633 and those of Simpson J in Archcom Pty Limited v Consumer Claims Tribunal & Ors (NSWSC, 29 September 1995, unreported) which deal with the nature of the proceedings in the Consumer Claims Tribunal.

9   The Tribunal has been established to deal with small claims in a relatively informal and expeditious manner. As Hunt J said in Singer at p 635:

“The Consumer Tribunal Act 1974 has set up a system for the speedy and inexpensive disposal of certain claims, limited in amount, arising out of contracts for the supply of goods or the provision of services by a person carrying on (or holding himself out as carrying on) the business of supplying such goods or providing such services. The tribunal hearing such claims is constituted by a referee, who need not have (and who in many cases does not have) legal qualification.”

10   As Simpson J said in Archcom at p 12 after referring to the remarks of Hunt J:

“Those remarks were made in the context of the predecessor of the Act, a 1974 Act by the same title, but they apply equally to the Act. Underpinning the Act is a policy of providing expeditious access to an inexpensive and informal process for the resolution of consumer disputes involving relatively small amounts of money. Speed and economy are to be accompanied and (it is hoped) often achieved, by informality.”

11   Her Honour continued, at pp 13-14:

“The intention of the legislature, in creating these tribunals as a forum for the resolution of disputes involving relatively small amounts of money was the achievement of expeditious and inexpensive justice between the parties while maintaining a proper regard for, and protection of, the rights of the parties to the dispute. The difficulty, as I see it, lies in striking the correct balance between those two goals. Speedy and inexpensive solutions may be inimicable to the protection of rights. There is no necessary relationship between the factual or legal complexity and the quantum of a claim but legal rights and obligations remain at the heart of the tribunal’s jurisdiction. Although a tribunal is enjoined to make such orders as will, in its opinion, be fair and equitable to all parties to the claim (s 31(1)), those orders must be grounded in legal liability.”

12   Her Honour thus stressed the need for “justice” and the “protection of rights”.

Concurrent proceedings

13   I turn to the issue of whether the Referee erred in law in hearing the matter when there were concurrent proceedings on foot in the Local court.

14   The relevant portion of s 11 of the Act is as follows:

“Other jurisdictions excluded in some cases
(1) …
(2) If:
(a) a consumer claim has been lodged in accordance with section 13, and
(b) at the time when the claim was so lodged, no issue arising under the claim was the subject of a dispute in proceedings pending before a court,
a court has no jurisdiction to hear or determine such an issue, unless;
(c) the claim, or part of the claim to which the issue relates:
(i) is withdrawn, or
(ii) is dismissed for want of jurisdiction, or
(d) a court of record has, on a judicial review, quashed or declared invalid an order, determination or ruling of a tribunal made in respect of the claim on the ground that the tribunal had no jurisdiction to hear and determine the issue.
(3) If:
(a) a consumer claim has been lodged in accordance with section 13, and
(b) at the time when the claim was so lodged, an issue arising under the claim was the subject of a dispute in proceedings pending before a court,
the tribunal, on becoming aware of those proceedings, ceased to have jurisdiction to hear or determine the issue, unless:
(c) those proceedings, or the part of the proceedings relating to the issue, are or is:
(i) withdrawn, or
(ii) dismissed by the court, or by another court on appeal in those proceedings, for want of jurisdiction or without deciding the issue on its merits, or
(d) a court of record has, on a judicial review, quashed or declared invalid:
(i) any order, judgment or decision made in those proceedings in relation to the issue,
on the ground that the first-mentioned court has no jurisdiction to hear and determine the issue.
(4) …
(5) …”

15   Section 26 of the Act provides:

“Procedure to be followed when a tribunal's jurisdiction is disputed

(1) If, before a tribunal has determined a consumer claim , the jurisdiction of the tribunal to hear and determine the claim is disputed by a party to the claim, the tribunal must not proceed to determine the claim without first giving a ruling as to whether or not it has that jurisdiction.

(2) A tribunal must not, of its own motion, make an order under section 30 (2) (a) dismissing a consumer claim for want of jurisdiction without first giving a ruling as to its jurisdiction to hear and determine the claim.

(3) If a tribunal has given a ruling under this section in respect of its jurisdiction to hear and determine a consumer claim , it must not determine the claim:


(a) until at least 14 days have elapsed since the day on which the ruling was given, or

(b) if, before it has determined the claim, it becomes aware that proceedings for relief or a remedy of a kind mentioned in section 12 have been instituted in a court in respect of the ruling-until those proceedings have been concluded.”

16   As previously stated when the hearing in the Tribunal commenced Mrs Hanania raised the jurisdictional issue of the concurrent proceedings in the Local court and the Tribunal. The Referee adjourned the matter until 31 March 1998 for further evidence to be given. On 31 March 1998 Mr Hanania informed the Referee that he had not been served with the Wookeys’ notice of motion to discontinue proceedings in the Local court. The Wookeys informed the Referee that the matter in the Local court had been withdrawn. There was a letter from the registrar of the Local court which the Referee found to be inconclusive. The Referee adjourned the hearing before the Tribunal to 26 May 1998 to allow further evidence to be adduced including the current status of the proceedings of the Local court. On 12 May 1998 the matter was postponed until 26 May 1998 due to illness of Mr Hanania. On 26 May 1998 the Referee determined the jurisdiction issue. On 1 June 1998 he gave reasons and held that the Tribunal had jurisdiction.

17   The plaintiff submitted the Referee continued to hear the matter when the Local court proceedings were still on foot. According to the plaintiffs, even now the civil claim matter had not been properly discontinued. A notice of discontinuance was not filed in accordance with Part 5(1) of the Local Court Rules (LCR) until October 1999. However it appears that the registrar granted the Wookeys leave to discontinue the civil claim matter on 6 March 1998 when a hearing was scheduled because on that day Mapaga had a motion returnable. Mr Hanania is an employee of Mapaga and Mrs Hanania is a director of Mapaga. Mr Hanania submitted that the registrar’s powers contained in Part 33 LCR did not extend to discontinuing proceedings. However a registrar of a court held at the Downing Centre held the power to exercise the power granting leave to discontinue proceedings under Part 17 r 2(1)(c) - see Part 33 r 1(4)(c). However, it appears that Part 17 r 2(1)(c) has been repealed. The registrar made the order discontinuing proceedings against all four defendants on 6 March 1998. Even if the registrar did not have such power, s 69(1) of the Local Court Act (LCA) provides that all judgments and orders of the court exercising jurisdiction under this act shall be final and conclusive. The CCT and this court cannot go behind that order. There is no claim brought by the plaintiff in these proceedings against the Local court. The proceedings in the Local court were discontinued on 6 March 1998. Mr Hanania’s contention that because he has filed a motion to set aside the order of 6 March 1998 the proceedings are on foot is incorrect.

18   If there are concurrent proceedings in the court and CCT, one has to take precedence over the other. Section 11(2) says that if there are proceedings filed in the court and the Tribunal, the court has no jurisdiction to hear and determine issues subject to certain exceptions. The Tribunal on becoming aware that there are concurrent proceedings ceases to have jurisdiction. The statute contemplates that where there are proceedings in both the Tribunal and the court covering the same subject matter the party or parties have to elect to discontinue one set of the proceedings. Section 11(3) anticipates that there will be cases where some of the issues in the court and Tribunal will be common and some will not. It, in my view, was correct for the Referee to conduct a hearing for the purpose of determining whether matter falls within s 11(3)(c) and whether he has jurisdiction to hear the claim. The words “becoming aware” contemplates a continuum of level of awareness or understanding.

19   There is no definition of the meaning of the word “withdrawn” in either the Act or in the Local Court (Civil Claims) Act 1970 (LCA) or the Local Court (Civil Claims) Rules (LCR). Earlier in the Referee’s reasons he referred to the action being discontinued.

20   The Macquarie Dictionary 2nd revised ed reprinted 1988, 1989, 2nd revision 1987 p 1959 defines the meaning of “withdrawn” as (1) past participle of withdraw; (2) shy, retiring or modest; (3) secluded, as a place and “withdraw” (1) to draw back or away, take back, remove; (2) to retract or recall; (3) to retire, retreat, go apart or away; (4) to retract a statement or expression; (5) Parl. proc. to remove an amendment, motion etc from consideration. The Concise Oxford Dictionary reprinted 1990, 1991 at p 1408 defines “withdraw” past part. “withdrawn” as (1) pull or take aside or back; (2) discontinue, cancel, retract; (3) remove, take away; (4) take (money) out of an account; (5) retire or go away, move away or back (6) (as withdrawn adj.) abnormally shy and unsociable, mentally detached. It is my view that although the Local court proceedings were discontinued, this term falls within the more imprecise term of the meaning of “withdrawn”.

21   It is my view that s 26(3) gives the CCT power to hear evidence from both parties to enable the registrar to determine whether or not it has jurisdiction. The Tribunal cannot determine a claim without first giving a ruling as to whether or not it has jurisdiction. The Referee had to hear evidence and argument to be in a position to make such a ruling. On 26 May 1998 the Referee in determining whether the issues in dispute in the Local court were the same as that in the Tribunal found it necessary to join Mrs Wookey as a party to the proceedings. There is nothing to suggest that the Referee did anything other than embark on a hearing to determine whether the issues in dispute were the same and whether the Local court proceedings had been withdrawn. The Referee was exercising his powers under s 26(3) to determine whether or not the Tribunal had jurisdiction.

22   It is my view that there is no valid basis for the plaintiff’s jurisdictional challenge and this ground of appeal fails.

Denial of natural justice

23   In relation to natural justice, Professor S A de Smith, Judicial Review of Administrative Act, 2nd ed., pp 180-181 has stated:

“Natural justice generally required that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position: (a) to make representations on their own behalf; or (b) to appear at a hearing or inquiry (if one is to be held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet.”

24   In Kioa v West (1985) 159 CLR 550 the High Court held that the duty to accord natural justice is a duty to act fairly. In the normal course, a party to judicial proceedings (as are those in a tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing such as to give it a reasonable opportunity to meet that case and to advance its own. These statements are similar to those expressed by Professor de Smith and referred to earlier. Brennan J (as he then was) at p 628 stated:

“A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interest which the repository of the power proposes to take into account in deciding upon its exercise.”

25   In relation to procedural fairness, Mason J stated in Kioa that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect the rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case (pp 454 and 455).

26   A number of further provisions of the Act are relevant. Section 14 provides that the registrar of the Tribunal must when the initial hearing is deferred, cause notice of the time and place fixed for hearing to be served on all interested parties - s 14(1)(d) and (7). Section 20 empowers the Tribunal to adjourn the case from time to time and if the matter is adjourned, the registrar must cause notice of the time and place fixed for hearing to be served on the parties - s 20(2). Section 40 provides that it is sufficient for service of notices under the Act, that the notice be posted by pre-paid mail to the person’s usual or last known address.

27   Section 17(1) provides that except as expressly provided by the Act and regulations, the Tribunal in exercising its functions, must conform to the rules of natural justice. Section 21(1) provides that subject to the section, a party has the carriage of the party’s case. Section 21(2) provides that a party is not entitled to be represented unless the party is a corporation and it is represented by one of its officers - subsection (a); or the tribunal decides that a party would be disadvantaged if not represented - subsection (j); or in any other case, representation is approved by the tribunal - subsection (k). Thus if a party to the claim does not present a case to the Tribunal, the Tribunal must decide the issues in dispute upon the evidence before it and the order made is just as effective as if that party had been fully heard. Section 25 provides for the rehearing of a consumer claim if the registrar is satisfied that there was sufficient reason for the party’s absence.

28   Mr Hanania referred to Full Brick Homes Pty Limited v Consumer Claims Tribunal & Ors (NSWSC, Rolfe J unreported, 13 February 1997). At that hearing before the Building Disputes Tribunal in Full Brick Homes the second and third defendants did not appear. The proceedings were determined in their absence. The second and third defendants applied for a rehearing on the grounds that Mrs Barrett (who appeared for the second and third defendants) did not receive notification of the hearing as her address had changed and although there was a redirection order at the post office no notification was received by her. Rolfe J stated that there could have hardly been a more compelling prima facie reason put forward for a rehearing. When the rehearing was refused there was no evidence that the Referee in any way examined the assertion by Mrs Barrett that the notification of the hearing had not been received. Rolfe J then made a finding that no notification was given to the plaintiff of the hearing. Rolfe J held that the plaintiff was denied natural justice because it was not given any notice of the original hearing and that it was not given any opportunity in relation to the rehearing to press any submissions to the first defendant. His Honour held that because of the first breach of natural justice there should not have been a compounding of that breach of natural justice by refusing the rehearing.

29   The Court of Appeal decision of McClelland v Acmil Industries Pty Limited (1983) 1 NSWLR 615 also involved a hearing before the Consumer Claims Tribunal under the Consumer Claims Tribunal Act 1974. Approximately 14 days before the hearing, the registrar of the Tribunal gave notice of the hearing, by post to the respondent. The notice was received at the address at which the respondent carried on business (as opposed to its principal office which was elsewhere) on the day before the hearing but was not received by the responsible officer until the day after the hearing. The Court of Appeal held that in these circumstances there was no denial of natural justice. Reference was made in the judgments to ss 14(1)(b), 34 and 37 of the 1974 Act (these provisions have materially similar counterparts in the Act being ss 14(1)(d) and (7), 17(1) and s 40).

30   Hope JA stated at p 617:

“In my opinion there is no basis in the terms of the legislation, which is essentially directed to the setting up of a fairly peremptory system of dealing with small claims, to construe the Act so as to require that a notice given by the registrar pursuant to s14(1)(b) should be received at a time which would enable the recipient to prepare his case for hearing.
…the Act is not to be construed to require that a notice is to be given at a time which will take into account the internal arrangements of the recipient. The notice… is a notice which is effective when it is received;…

…the requirement that the tribunal have regard, in the control of its procedures and the exercise of that control, to natural justice is subject to the Act and regulations. The Act requires the registrar to give a notice of the hearing and authorizes the service of that notice by post.
The notice is deemed to be sufficient if posted in accordance with the provisions of s 37. If a notice is served in accordance with the provisions of s 37 and
…is received at a time which would give an opportunity to the respondent to attend at the hearing before the tribunal, if acted upon at the time of receipt, there is, …no basis, whether by the application of s34 or otherwise, to deny the validity of the ensuing proceedings by reason of the time or manner of the service of the notice.”

31   Hutley JA commented that the provisions of the Consumer Claims Tribunal Act 1974 are designed to see that natural justice has very little role to play. Furthermore, the Tribunal itself cannot give effect to its ideas of natural justice because it is only subject to the Act and regulations that it can exercise control on the bases of natural justice. However, although it is true that there is provision for the court intervening under circumstances disclosing absence of natural justice, the occasions on which it will be able to intervene will be limited.

32   As was stated by Hutley J in McClelland even if the circumstances disclose an absence of natural justice the occasions on which the court can intervene are limited. In this case, His Honour was of the opinion that the court should not intervene and comment that the plaintiff may have been treated harshly. However as the Tribunal complied with the requirements of the Consumer Claims Tribunal Act there had not been a denial of the rules of natural justice. The plaintiff’s claim failed.

33   The facts in Full Brick differ from the facts in this case. In Mr and Mrs Hanania’s applications for rehearing they stated that they were seeking a rehearing because they were not notified of the hearing date. Hence he did not attend and had he been notified he would have attended the hearing. Mr Hanania also sought a rehearing on behalf of Mapaga on the same basis that it was not notified of the hearing. The Referee gave reasons for refusing the rehearing. He referred to s 40 (the effect of which has previously been discussed in McClelland). In relation to Mr Hanania, the Referee stated:

“(a) Mr Hanania does not give an address in his affidavit but he does designate PO box number - 6021 Wetherill Park 2164 as his address and the address of Mapaga Pty Ltd.
(b) I am satisfied that a Notice of Relisting dated 24 July 1998 was sent by the Registrar to Simon Hanania at 10 Turquoise Crescent Bossley Park NSW 2176. That Notice of Relisting has not been returned to the Registry. I add that 10 Turquoise Crescent, Bossley Park NSW 2176 is the address of the respondent Marcella Claudia Hanania, also known as Sammartano (see her affidavit sown on 28 August 1998 in support of her application for a rehearing). I believe her to be the wife of Simon Hanania.
(c) I am satisfied that a Notices (sic) of Relisting dated 24 July 1998 was sent by the Registrar to Nick Hanania and Nicola Hanania at 10 Turquoise Crescent Bossley Park NSW 2176 and at 27 Tallowood Crescent, Bossley Park NSW 2176. Those Notices of Relisting have not been returned to the Registry.(d) I am satisfied that:
(i) Notices of Relisting dated 24 July 1998 for the hearing on 18 August 1998 were posted to Mapaga Pty Ltd by pre-paid mail at several addresses including 10 Turquoise Crescent, Bossley Park NSW 2176 and PO Box 6021 Wetherill Park 2164, and
(ii) The Notices of Relisting posted to 10 Turquoise Crescent, Bossley Park NSW 2176 and PO Box 6021 Wetherill Park 2164 have not been returned to the Registry.
I am satisfied that the Notices of Relisting were not received by Mapaga Pty Ltd. I add that whilst it may be possible, although in my opinion unlikely, that the mail posted to a private mail address is removed from the letter box, I believe that is highly unlikely that the Notice of Relisting would not be delivered to a post office post box.
Further, whilst the order in this claim mailed by registered post to Mapaga Pty Ltd at a number of addresses was returned, the order which was mailed by registered mail to the above post box was not returned. I believe this supports the probability that the Notice of Relisting was delivered to the company at that post box.
(e) Prior to the hearing on 18 August 1998 this claim was listed before the tribunal on 3 December 1997, 21 January 1998, 2 February 1998, 31 March 1998, 12 May 1998, 26 May 1998 and 21 July 1998. I am satisfied that prior to each of those hearings, Notices of Hearing/Relisting were posted by pre-paid mail addressed to Simon Hanania, Nick Hanania and Nicola Hanania at 10 Turquoise Crescent, Bossley Park NSW 2176. Notices were also posted by pre-paid mail to Nick Hanania and Nicola Hanania, i.e., Simon Hanania, at 27 Tallowood Crescent, Bossley Park NSW 2176. On each occasion Mr Hanania appeared or sought a postponement of the hearing. I conclude that he had received the Notices at one or other of the addresses. Further, Mr Hanania did not advise the tribunal at any of the numerous hearings which he attended, or at any other time, that the addresses were incorrect.”

34   The Referee gave similar reasons in relation to Mapaga and Marcella Hanania. In determining all of the rehearing applications the Referee was satisfied that there was sufficient reason for Mr Hanania’s absence from the hearing and consequently he did not propose to order that the claim be reheard. Unlike in Full Brick, the Referee in the case before the court checked whether letters were forwarded to Mr and Mrs Hanania. He was satisfied that they were. The explanation that Mr Hanania did not receive notification of the hearing when it was sent to three different addresses and not returned was at the very least implausible.

35   The notices of hearing were served in accordance with s 40. There is no reason to deny the validity of the ensuing proceedings by reason of the time and manner of service of the notice. The Tribunal did more than was required under the Act. It is my view that the plaintiff has not been denied natural justice. There has been no error of law. Accordingly, the notice of motion and summons are dismissed. Costs are to follow the event. The plaintiff is to pay the defendants’ costs.

36   In the event that I am wrong, I turn to consider whether prerogative relief should be granted. The decision on jurisdiction was made in June 1998 yet the original summons was not filed until 9 October 1998. No explanation has been given for this delay. The summons nor the amended summons does not join Mrs Wookey as a party yet she was a plaintiff in the tribunal proceedings. On 19 August 1998 the Referee ordered the claimants to pay the Wookeys the sum of $8,014. It was necessary to join her as a party in these proceedings because any order made in these proceedings affects hers. These are further discretionary reasons why the orders sought by the plaintiffs should be refused.

37   The orders I make are:

(1) The decision of the Referee dated 1 June 1998 is affirmed.

(2) The amended summons is dismissed.

(3) The plaintiff is to pay the defendants’ costs as agreed or assessed.
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Last Modified: 09/25/2000