Irwin v F S Hough

[2004] NSWSC 171

CITATION:	Irwin v F S Hough & Anor [2004] NSWSC 171
HEARING DATE(S):	15 March 2004
JUDGMENT DATE:	15 March 2004
JURISDICTION:	Common Law Division Administrative Law List
JUDGMENT OF:	Master Malpass
DECISION:	The decisions made by the Tribunal on 19 September 2003 are set aside. The matter is returned to the Tribunal for determination in accordance with law. I reserve the question of the costs of the summons and allow Miss Dolenec time to research the question of whether or not the Suitors Fund Act 1951 applies to appeals from the Tribunal. It can be noted that the decisions are the decisions made on 19 September 2003 dismissing the plaintiff's application in the Tribunal and the other decision made by the Tribunal making orders against the plaintiff on the first defendant's application.
CATCHWORDS:	Plaintiff not notified of listing date - orders made in her absence - denial of procedural fairness.
LEGISLATION CITED:	Suitors Fund Act 1951.
CASES CITED:	N/A
PARTIES :	Dawn Irwin (Plaintiff) v F S Hough Pty Limited (First Defendant) Consumer Trader & Tenancy Tribunal (Second Defendant)
FILE NUMBER(S):	SC 30100 of 2003
COUNSEL:	M Dolenec (Plaintiff) N/A (Defendants)
SOLICITORS:	Turnbull Bowles Lawyers Pty Limited (Plaintiff) Hunter Lawyers - Submitting Appearance (First Defendant) I V Knight - Crown Solicitor - Submitting Appearance (Second Defendant)

LOWER COURTJURISDICTION:	Consumer, Trader & Tenancy Tribunal
LOWER COURT FILE NUMBER(S):	HB 03/05006; HB 02/52741
LOWER COURT JUDICIAL OFFICER :	Member Thane

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

Master Malpass

Monday 15 March 2004

30100 of 2003 Dawn Irwin v F S Hough Pty Ltd & Ors

JUDGMENT

1 MASTER: The plaintiff brought an application in the Consumer Trader and Tenancy Tribunal (the Tribunal). She now seeks relief in this Court in relation to decisions made by the Tribunal on 19 September 2003.

2 In the proceedings before the Tribunal she was permitted to have legal representation. Miss Turnbull was retained to appear on her behalf in those proceedings. She did, in fact, appear for her before the Tribunal, (including on 12 June 2003).

3 On that date the proceedings were further stood over to allow an independent assessor to prepare a report in relation to the claim. On that occasion, the Tribunal was informed that the plaintiff would be absent overseas during a specific period.

4 The Tribunal records reveal that it was at least intended to send notice to the parties by a document dated 9 July 2003 advising that the application would be listed on Friday 19 September 2003 at 9.15 a.m. for directions and hearing.

5 There seems to be no evidence in the Tribunal’s material to support the contention that the notice was, in fact, sent. There is evidence before this Court that both the plaintiff and Miss Turnbull did not receive notification of the further listing.

6 On 19 September 2003 the Tribunal proceeded to dismiss her claim in her absence. It also made orders against her. In the circumstances, the plaintiff was deprived of the opportunity of presenting her case and being heard by the Tribunal.

7 In my view, she was clearly denied procedural fairness. In the circumstances, I am satisfied that she is entitled to the relief sought. I should add that neither the first defendant nor the second defendant (which is the Tribunal) oppose the relief sought. Both parties have filed a submitting appearance and have not appeared today in court.

8 The decisions made by the Tribunal on 19 September 2003 are set aside. The matter is returned to the Tribunal for determination in accordance with law. I reserve the question of the costs of the summons and allow Miss Dolenec time to research the question of whether or not the Suitors Fund Act 1951 applies to appeals from the Tribunal.

9 It can be noted that the decisions are the decisions made on 19 September 2003 dismissing the plaintiff’s application in the Tribunal and the other decision made by the Tribunal making orders against the plaintiff on the first defendant’s application.

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Last Modified: 04/05/2004