Italiano v Carbone - [2005] NSWCA 177

No judgment structure available for this case.

CITATION:
Italiano v Carbone & Ors [2005] NSWCA 177
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):
02/05/05

JUDGMENT DATE:

2 June 2005

JUDGMENT OF:
Spigelman CJ at 1; Basten JA at 22; Einstein J at 121

DECISION:
Orders (1) Grant leave to the Claimant to amend the pleadings so as to reflect the proposed amendments to the draft notice of appeal and to file the amended notice of appeal (2) Order that the time for the filing of the amended summons be extended to 14 days after the date of handing down of the judgment (3) Grant leave to appeal (4) Allow the appeal from the Master (5) Set aside the judgment and orders of the Master made on 2 July 2004 (6) In lieu of the orders of the Master (a) Order that the decision of tribunal member Durie and the Consumer Trader and Tenancy Tribunal dated 26 June 2003 in proceedings No. HB 03/14211 be set aside (b) Order that the proceedings No. HB/14211 be remitted to the Consumer Trader and Tenancy Tribunal to be determined according to law. Costs (1) Order that the first Opponent pay the Claimant's costs of the appeal in this Court and to have a certificate under the Suitors Fund Act if otherwise qualified (2) Order setting aside the costs orders of the Master and in lieu thereof order that the First Opponent pay the claimant's costs in relation to the proceedings in the Common Law Division and to have a certificate under the Suitors Fund Act if otherwise qualified.

CATCHWORDS:
Administrative law - Judicial review - Natural justice - Jurisdictional error - Procedural fairness - Consumer, Trader and Tenancy Tribunal - Whether particular procedures in Tribunal flawed by failure to comply with mandatory statutory procedures - Legislation enabling Tribunal by notice in writing or by oral direction to join a person as a party in the proceedings - Tribunal fails to make order joining claimant as party to cross-claim - Whether claimant joined into proceedings by "cross-claim" filed before Tribunal - Whether proper construction of legislation showed obligation to proceed in strict compliance with its terms - Failure to serve claimant with orders of Tribunal - Whether adjournment of Tribunal hearing ought to have been ordered to give a party proper opportunity of adequately presenting his case - Practice - Joinder of party

LEGISLATION CITED:
Administrative Appeals Tribunal Act 1975 (Cth)
Anti-Discrimination Act 1977 (NSW)
Australian Securities Commission Act 1989 (Cth)
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Credit Act 1984 (NSW)
District Court Act 1973 (NSW)
Fair Trading Act 1987 (NSW)
Home Building Act 1989 (NSW)
Home Building Legislation Amendment Act 2001 (NSW)
Interpretation Act 1987 (NSW)
Magistrates' Court Act 1989 (Vic)
Migration Act 1958 (Cth)
Retirement Villages Act 1999 (NSW)
Retirement Villages Regulation 2000
Suitors' Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW)
Supreme Court Rules 1970 (NSW)

CASES CITED:
Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734
Australian Postal Commission v Dao (No. 2) (1986) 6 NSWLR 497
Bayram v Benton (1994) 117 FLR 414
Board of Education v Rice (1911) AC 179
Boghossian v Warner [2000] NSWCA 27
Brodyn Pty Ltd t/a Time Cost and Quality v Davenport [2004] NSWCA 394
University of Ceylon v Fernando [1960] 1 All ER 631
Commissioner of Police v Tanos (1958) 98 CLR 383
Emhill Pty Ltd v Bonsoc Pty Ltd (2004) 50 ACSR 305
Gallo v Dawson (1990) 64 ALJR 458
Guss v Magistrates' Court at Victoria [2003] VSC 365
Harkness v Bell's Asbestos & Engineering Ltd [1967] 2 QB 729
Hodgkinson v Companies Auditors and Liquidators Disciplinary Board & ASC (1994) 50 FCR 504
Hong Ye v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 327
Hope v Hope (1854) 4 De G.M. and G. 328
House v The King (1936) 55 CLR 499
Howship Holdings Pty Ltd v Leslie (No 2) (1996) 41 NSWLR 542
Hutley v Meigan (1997) ASC 56-370
Jackamarra v Krakouer (1998) 195 CLR 516
Ketrim Pty Ltd v AS&L Pty Ltd (2004) 52 ACSR 252
Kioa v West (1985) 159 CLR 550
Kotowicz v Law Society of New South Wales (unreported, Court of Appeal, 11 December 1978, Moffitt P)
Local Government Board v Arlidge [1915] AC 120
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Mobil Oil Australia Pty Ltd v the Federal Commissioner of Taxation (1963) 113 CLR 475
Moses v Parker; Ex parte Moses [1896] AC 245
Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2004] 1 Qd R 140
Plaintiff s157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Pino v Prosser [1967] VR 835
Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Prudential-Bache Securities (Australia) Ltd v Warner [1990] FCA 1143
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Ridge v Baldwin [1963] 2 WLR 935
Rust v Barnes (1980) 2 NSWLR 727
Russell v Duke of Norfolk [1949] 1 All ER 109
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Santos Ltd v Saunders (1988) 49 SASR 556
Sullivan v Department of Transport (1978) 20 ALR 323
Touma v Saparas [2000] NSWCA 11
Vickers v Mayne [unreported, Supreme Court of Western Australia, Full Court, Kennedy, Franklyn and Walsh JJ, 17 July 1998]
Vilenius v Heinegar (1962) 36 ALJR 200

PARTIES:
Giovanni Italiano (Claimant)
Domenic Carbone (First Opponent)
Consumer Trader and Tenancy Tribunal (Second Opponent)
Italiano's Painting and Decorating Pty Ltd (Third Opponent)

FILE NUMBER(S):
CA 40665/04

COUNSEL:
Mr PM Barham (Claimant)
Mr RW Tregenza, Ms K Welshman (First Opponent)

SOLICITORS:
Stoikovich Macri (Claimant)
Carbone & Associates (First Opponent)
Submitting Appearance (Second Opponent)

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 30108/03

LOWER COURT JUDICIAL OFFICER:
Master Harrison

CA 40665/04
SC 30108/03

SPIGELMAN CJ
BASTEN JA
EINSTEIN J
2 June 2005

ITALIANO v CARBONE & ORS

This is an appeal from the decision of a Master refusing the claimant (Mr Italiano) an application to extend time to file an appeal against a decision of the Consumer, Trader and Tenancy Tribunal (CTTT). An extension of time was also required in this Court.

The relevant CTTT proceedings involved a claim made by a company of which Mr Italiano was the sole director and shareholder, against Mr Carbone, in relation to the painting of Mr Carbone’s house. Mr Carbone cross claimed against the company for damages alleging, in effect, the painting work was performed negligently.

The company had previously obtained an award of $33,000 in its favour against Mr Carbone. However, Mr Carbone successfully obtained an order for rehearing on the basis that he was not served with notice of the proceeding.

Two days before the rehearing, Mr Italiano received an unfiled amended cross-claim, addressed to his company, from Mr Carbone, which without reading, Mr Italiano passed on to the builder advocate who was to represent the company in the rehearing. The amended cross claim sought to join Mr Italiano personally as co-cross defendant.

On the day of the rehearing, the builder advocate sought an adjournment on the basis that he did not understand that the rehearing would require, in effect, that the company’s claim be made out again in full. The application for an adjournment was refused. There was no application for an adjournment to allow Mr Italiano more time to present the defence to the cross claim in his personal capacity. The rehearing proceeded with the result that the CTTT, without ever making an order joining Mr Italiano in the proceedings, awarded the cross claimant, Mr Carbone, an award of $74,500 against Mr Italiano personally.

Long after the statutory time limit to appeal had expired, Mr Italiano sought to appeal the decision of the CTTT. The Master refused the application. After the time limit expired for an appeal from that refusal, Mr Italiano appealed to the Court of Appeal.

Apart from an extension of time to appeal from the decision of the Master, the issues for determination in the Court of Appeal included:

(i) whether, because the orders of the tribunal were addressed to Mr Italiano’s company and not him personally, he was ever served with the orders of the CTTT and therefore, whether the time period for which to appeal had ever commenced to run;

(ii) whether Mr Italiano was ever made a party to the proceedings in the CTTT;

(iii) whether Mr Italiano was accorded procedural fairness;

(iv) whether the CTTT complied with mandatory statutory procedures under the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the CTTT Act) and the Home Building Act (1989) (NSW) (the Home Building Act); and

(v) whether the Court should grant an order in the nature of certiorari quashing the decision of the tribunal.

Held in relation to issue (i):

Per Basten JA (Spigelman CJ and Einstein J not deciding):

The CTTT Act merely requires that the Tribunal give notice of its decision: s49(1). Although s78 provides for certain means by which notice can be given, it is facultative and not exhaustive. Once satisfied that Mr Italiano in fact received notice of the decision (together with the reasons for decision) the statutory requirement was satisfied and time for appeal commenced to run.

Held in relation to issue (ii):

Per Spigelman CJ:

(a) Section 48Q indicates that precise formality is not required. A person may be added as a party either by notice in writing or by oral direction given during proceedings. In this case there was neither. This is a fundamental matter which requires at least a minimum degree of formality in order to establish the jurisdiction of the Tribunal to make an order against any person. It may not require much, but it requires something. There was nothing.

(b) The Tribunal proceeded with a level of informality which Parliament did not intend to countenance, a level that Parliament intended to lead to invalidity of any decision reached in this manner.
(c) It is the extraordinary outcome of the proceedings which indicates that a significant injustice would be done if this Court stayed its hand and did not intervene. In substance Mr Carbone has received the complete cost of the paint job for which he originally contracted and for which he only paid an amount of $7,000 or $8,000. There is no justice in Mr Carbone obtaining the full advantage of a complete paint job for the small amount of money that he actually handed over in cash.

Per Einstein J:

(a) The significance of the taking of the step joining a person into proceedings requires no emphasis. Whilst legislation may plainly be construed as eroding the need for even the oral making of an order for joinder, it is necessary for special caution before being in a position to reach any such construction.

(b) The joinder of a person to the CTTT proceedings constitutes such a critical procedural step that upon its proper construction section 48Q does impose an obligation to proceed in strict compliance with its terms.
(c) The section 48A requirement to join a party by notice in writing given to that person or by oral direction given during the proceedings being mandatory, failure to comply with that requirement meant that the CTTT did not discharge its statutory function and therefore Mr Italiano was not a party to the proceedings and the ACCC acted ultra vires.

Per Basten JA (dissenting):

(a) Whilst it may be conceded that the express terms of s32(3) of the CTTT Act, requiring certain non-compliance to be treated as an irregularity, do not apply to s48Q of the Home Building Act, it does not follow that a failure to comply with s48Q, by giving an express direction, renders the proceedings a nullity in relation to the person intended to be joined but not expressly joined.

(b) It is unlikely that a procedural step which can, in any event, be fulfilled by way of an oral direction without further formalities, should be treated as giving rise to an obligation, non-compliance with which results in invalidity, in circumstances where that which was not done expressly was, or should have been, well understood by those present at the Tribunal hearing and participating in its proceeding.

(c) Section 48Q should not be understood as imposing an obligation to proceed in strict compliance with its terms, but rather as a non-exhaustive power.

Per Einstein J (Spigelman CJ agreeing):

The discretion of the CTTT miscarried on the basis that the adjournment should have been granted. There were simply too many areas where failure to comply with the procedures laid down had taken place. Even had it been necessary to treat non-compliance with the sundry procedures laid down and referred to as an irregularity, this would not address the procedural fairness parameter. Procedural fairness was denied to Mr Italiano.

Per Basten JA (dissenting):

(a) To establish lack of procedural fairness, Mr Italiano must demonstrate that the confusion in his mind was such that he did not have a reasonable opportunity to make an application for an adjournment, or that the circumstances were otherwise such that the Tribunal itself had an obligation to consider offering an adjournment.
(b) There was a hearing at which he had an opportunity to seek an adjournment so that he could better prepare a defence to a case of which he had inadequate notice; his failure to make an application in that regard, absent some satisfactory explanation, itself grounded on procedural unfairness, is fatal to this aspect of his claim.

(c) The Tribunal based its refusal on relevant considerations arising from the history of the proceedings. The Court’s attention was not directed to any significant matter demonstrating that the Tribunal’s exercise of discretion in refusing the adjournment actually sought resulted in procedural unfairness. As that was the only material basis upon which the proceedings before the Tribunal were challenged, that challenge must fail.

Held in relation to issue (iv):

Per Basten JA:

(a) The Tribunal failed to take steps which were reasonably practicable, pursuant to s28(4) of the CTTT Act to ensure Mr Italiano understood his potential liability, and failed to provide a sufficient opportunity for Mr Italiano personally to present his case before the Tribunal, with a resultant contravention of s35 of the CTTT Act.

(b) The reconciliation of s32(3), which provided that non-compliance with the CTTT Act was to be treated as an irregularity and did not nullify the proceedings, with the specific provisions of s28(4) and s35, which are phrased in mandatory terms, in relation to the procedure of the Tribunal, do not suggest that Parliament intended that breach of those provisions should be treated as mere irregularities, when their purpose was to reflect basic principles of procedural fairness.
(c) The approach taken by the High Court in SAAP v MIMIA should be applied in the present statutory context, with the result that the breaches of the statutory provisions identified should be treated as invalidating the decision of the Tribunal.

Per Einstein J (Spigelman CJ agreeing with the orders proposed by Einstein J):

Relief should be granted.

Per Basten JA:

There was a constructive failure by the Tribunal to exercise the jurisdiction vested in it by statute. Absent compliance with those requirements, the Tribunal had no jurisdiction to make the order, a finding which falls within s65(3)(a) of the CTTT Act. In those circumstances, the Court is empowered to grant relief in the nature of certiorari, pursuant to s65(1)(a) of the CTTT Act.

CA 40665/04
SC 30109/03

SPIGELMAN CJ
BASTEN JA
EINSTEIN J
2 June 2005

ITALIANO v CARBONE & ORS

Judgment

1 SPIGELMAN CJ: In this matter I have had the advantage of reading the judgments of Basten JA and Einstein J in draft. Their Honours set out the relevant facts, issues, submissions and statutory provisions. My conclusions can be briefly stated. Leave to extend time to appeal to this Court should be granted for the reasons of Basten JA.

2 Before Master Harrison and in this Court the Claimant sought orders that the decision of the Tribunal dated 26 January 2003 be set aside and the matter be remitted for further hearing to the Consumer, Trader and Tenancy Tribunal.

3 The power purportedly exercised by the Tribunal was that found in s48O(1)(a) of the Home Building Act 1989 which empowered the Tribunal to make an order “that one party to the proceedings pay money to another party or to a person specified in the order”. The Claimant has throughout sought leave to appeal on the basis that he was not at any stage a “party”.

4 The matter appears to have been approached on the basis that the submissions in this regard would, if substantiated, constitute an appeal on a matter of law within s67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (“the CTTT Act”). In this Court, and at least in argument before the Master, the Claimant sought also to invoke the supervisory jurisdiction of the Court pursuant to s65(3)(a) of the CTTT Act. He submits that the orders that had always been sought are appropriate to be made, on the basis that the Tribunal had no jurisdiction to make an order against the Claimant, because the Claimant was never a party.

5 It does appear that invoking the supervisory jurisdiction of the Court was not clearly articulated until this Court. This submission, however, raises a question of law upon which there could have been no material evidence other than that which is already before the Court. I can see no relevant prejudice to the Opponent from the Claimant seeking to alter the juridical basis of the relief it has always sought, the substance of which has always been in issue.

6 I do not regard this case as turning on the alleged denial of procedural fairness to the Claimant. The issues involve what was once called simple ultra vires.

7 The power to make orders of payment extends only to parties. If, as the Claimant submits, he was never made a party, the Tribunal had no jurisdiction to make the order at all.

8 I recognise that a body such as the Consumer Trader and Tenancy Tribunal is not expected to conduct its proceedings with the formality of a court of law. This is clear in a number of provisions of the CTTT Act:

· It is an object of the Act that the proceedings be determined in an informal, expeditious and inexpensive manner (s3(c)).

· Subject to the rules of procedural fairness the Tribunal is not bound by the rules of evidence (s28(2)).

· The Tribunal is required to “act with as little formality as the circumstances of the case permit” and to do so “without regard to technicalities or legal forms” (s28(3)).

9 Section 48Q of the Home Building Act makes specific provision with respect to the addition of parties in relation to building claims. Although not materially different in substance, it operates, in my opinion, to the exclusion of the general provision found in cl 28 of the Consumer, Trader and Tenancy Tribunal Regulation 2002. Section 48Q indicates that precise formality is not required. A person may be added as a party either “by notice in writing” or “by oral direction given during proceedings”. In this case there was neither. I am unable to identify anything capable of answering the statutory description. This is, in my opinion, a fundamental matter which requires at least a minimum degree of formality in order to establish the jurisdiction of the Tribunal to make an order against any person. It may not require much, but it requires something. There was nothing.

10 Alternatively, the Opponent relied on service of a document identified as a cross-claim and which, for reasons outlined in the judgments of Basten JA and Einstein J, is capable of constituting an application under the CTTT Act. No attempt was made to satisfy even the minimum requirements of such an application under the applicable rules. Einstein J lists the defects. A number of them are expressed in mandatory terms. It is not important to express a conclusion with respect to each alleged defect. The cumulative effect of all of the defects is that no attempt was made to comply with the requirements for issuing proceedings other than service. Nor, on any occasion, did the Tribunal utter any words or take any formal step that recognised the new document as an application, let alone an application that involved a new party.

11 If all that was involved was an issue of procedural fairness, then the conduct of the proceedings, however cursory that may now appear to be, by the building advocate on the Claimant’s behalf, may have been sufficient to satisfy the requirements. However, persons who are subject to orders of this character are entitled to at least some minimum compliance with the formalities set down by the legislative scheme. Here there was, in effect, no compliance at all.

12 The Tribunal is a body which has been granted important powers, including powers which are not limited to small disputes in which speed and economy are entitled to determinative weight. It has a jurisdiction with respect to building claims up to $500,000 and the amount awarded in this particular case is almost double the jurisdiction of the Local Court. There are real limits to the extent to which this Court should countenance the Tribunal ignoring the basic requirements for its proper functioning, as laid down by the Parliament directly, or indirectly through Regulations which are capable of being disallowed by Parliament.

13 In this case the Tribunal proceeded with a level of informality which Parliament did not intend to countenance. Indeed a level, in my opinion, that Parliament intended to lead to invalidity of any decision reached in this manner. (See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93].)

14 Reliance was placed on s32(3) CTTT Act. This is in the traditional form of an irregularity provision which has been a feature of legislation creating courts since the Judicature Acts. (See e.g. Supreme Court Act 1970, s81; District Court Act 1973, s159; and see the analysis in Rust v Barnes [1980] 2 NSWLR 727 at 729-731 and Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 at 752-753.)

15 Section 32 of the CTTT Act appears to be directed to the Tribunal and the Tribunal only. Indeed, the concluding words of subs (3) and the introductory words of subs (4) of s32, may suggest that the section does not bind the Supreme Court in any manner, whether on appeal or exercising its supervisory jurisdiction. Nevertheless, the effect of a provision of this character is to render non-compliance voidable rather than void as may once have been the case.

16 It is by no means clear to me that s32(3) applies under any circumstances if s48Q were the requisite power. It does, however, apply to a failure to comply with the Regulations for a formal application to be made and, accordingly, could apply to the alternative manner in which the Respondent states its case on the issue of joinder.

17 Provisions of this character must be construed widely and generously. (See e.g. Harkness v Bell’s Asbestos & Engineering Ltd [1967] 2 QB 729 at 735.) Nevertheless, the issue remains whether or not a matter which, by statute, is to be treated as an irregularity, should be avoided pursuant to the clear reservation of a discretion to do so in provisions of this character. (See generally Vickers v Mayne (Unreported, Supreme Court of Western Australia, Full Court, Kennedy, Franklyn and Walsh JJ, 17 July 1998).)

18 In my opinion, any discretion should be exercised in favour of the Claimant in this case. I am concerned by the fact that the building advocate who represented the Claimant did not, it appears, understand the nature of the proceedings that his client was called upon to meet on the day of the hearing. More significantly, however, in my opinion, is the extraordinary outcome of the proceedings which indicate that a significant injustice would be done if this Court stayed its hand and did not intervene.

19 The Opponent entered into a contract with the Claimant to complete a job of painting for the amount of $33,000 of which he paid $7,000 or $8,000 in cash. In the event he was awarded an amount of $74,500 by way of compensation computed in an amount which involves repainting of the internal walls and also rectification works to the exterior. In substance the Respondent has received the complete paint job for which he originally contracted and for which he only paid an amount of $7,000 or $8,000. I can see no justice in the Respondent obtaining the full advantage of a complete paint job for the small amount of money that he actually handed over in cash. No allowance appears to have been made in assessing what was said to be compensation for the amount the Respondent ought reasonably have paid for the job whether it was to be done for cash, in the amount of $33,000, or some other amount which the Respondent should have been expected to pay other than for cash.

20 This does not raise an issue of what Mr Italiano should have been able to recover on his own claim, but what is the proper form of an order under s48O(1)(a) of the Home Building Act to be made “by way of debt, damages or restitution”. This matter ought be remitted to the Tribunal.

21 The issue comes before the Court formally in an application for leave to appeal from a discretionary judgment of the Master, who refused leave required to extend time to lodge an appeal, under Pt 51A r 3 of the Supreme Court Rules 1970. For the discretionary reasons I have indicated above, this Court should grant leave to appeal from that judgment. I agree with the orders proposed by Einstein J.

22 BASTEN JA: This matter involves an application for leave to appeal against a decision of a Master refusing the Claimant an extension of time within which to file an appeal against a decision of the Consumer, Trader and Tenancy Tribunal. The Master held that time to commence proceedings in the Common Law Division expired on 28 July 2003 and declined to extend the time to 10 December 2003 when the summons was filed. Despite that salutary lesson, the application to this Court was also filed out of time, though only by some 13 days. In any event, the Claimant requires leave from this Court to appeal from the decision of the Master.

23 The matters raised by the Claimant involve questions of statutory construction of some complexity. In addition, the lack of attention by the Tribunal to the proper identification of the parties before it gives rise to concerns of some substance, which were not addressed by the Master. The reasons for that are not entirely clear, but it appears that significant issues were not addressed before her. These factors, together with the relatively short delay in seeking leave to appeal favour an extension of time and a grant of leave. Because there were matters of principle raised by the contentions before this Court, a grant of leave is warranted even though the application before the Master was merely one for an extension of time within which to commence proceedings in the Supreme Court.

24 The issues arising in these proceedings will be dealt with below in the following order, after considering the background to the proceedings.

(1) Was there a failure to serve the Claimant with the orders of the Tribunal, so the time for appeal did not commence to run and he required no leave from the Master to institute the present proceedings?

(2) Was there a failure to join the Claimant as a party in the Tribunal, with the result that no orders could be made against him personally?

(3) In the alternative to (1), were the proceedings before the Tribunal flawed by procedural unfairness and the orders therefore invalid?

(4) Was the procedure in the Tribunal otherwise flawed by failure to comply with mandatory statutory procedures, so that the orders were therefore invalid?

The fourth matter is dealt with last because it was not raised in those terms before the Master. In this Court, it was raised, but was in substance limited to the question of joinder.

Background

25 This matter commenced with a claim filed in the Fair Trading Tribunal by the Third Opponent, Italiano’s Painting and Decorating Pty Ltd (“the Company”), which was an entity controlled by the Claimant, Mr Giovanni Italiano. That claim was lodged on 16 November 2001. The respondent to the claim was Mr Carbone, the First Opponent in this Court.

26 On 25 February 2002 the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (“the CTTT Act”) came into force. Schedule 6 of the CTTT Act contained savings and transitional provisions which dealt with pending proceedings. Pursuant to clauses 3-6, such proceedings as had been commenced in the Fair Trading Tribunal continued in that Tribunal, which was maintained for the purpose, until a period of eight months after the commencement of the CTTT Act, namely until 25 October 2002. Thereafter, separate provision was made for pending proceedings which had “not commenced to be heard” by the Fair Trading Tribunal (clause 7(1)), pending proceedings which a former Tribunal “had commenced to hear, but had not finally determined” (clause 7(2)) and pending applications for re-hearings (clause 8). As at 25 October 2002, the substantive hearing of the claim filed by the Third Opponent had not commenced, but directions had been given by the Tribunal on two occasions, namely on 25 March 2002 and 19 September 2002. The hearing of the substantive issues was fixed for 21 February 2003, when the Respondent to the claim, the First Opponent in these proceedings (Mr Carbone) did not attend. Orders were made by the Tribunal in favour of the Third Opponent, but on 28 February 2003 the First Opponent made an application for a rehearing. Schedule 6, clause 8 of the CTTT Act makes provision for applications for rehearing made before the commencement of the CTTT Act. If not dealt with by the commencement date, they were to be dealt with “in accordance with this Act as if the application had been made under this Act.”

27 Although the orders sought in the summons seeking leave to appeal to this Court refer, in the alternative, to orders of the Consumer, Trader and Tenancy Tribunal and the Fair Trading Tribunal, no argument was put to the Court in support of the view that the Fair Trading Tribunal had made any relevant order in these proceedings. That approach was correct. Whichever limb of clause 7 of Schedule 6 operated, the matter was heard on 21 February 2003 by the Consumer, Trader and Tenancy Tribunal (hereafter, “the Tribunal”). The application for a rehearing made on 28 February 2003 was not covered by clause 8 of Schedule 6, but the scheme of the Schedule is consistent only with an application for rehearing of a matter dealt with by the Tribunal being an application made under the CTTT Act, to be determined by the Tribunal.

28 The application for a rehearing was granted on 1 April 2003 and occurred on 29 May 2003. On 23 May 2003 the First Opponent sent to the Third Opponent an amended “cross-claim” which sought damages, not merely against the Third Opponent, but also against the Claimant personally. On 29 May 2003 the Tribunal dealt with both the rehearing of the claim made by the Third Opponent and the “cross-claim” filed by the First Opponent against the Claimant personally. It was the First Opponent’s case that his agreement for painting services was with Mr Italiano himself, and not with his company. Orders and Reasons for Decision were made on 24 June 2003.

29 The result of the hearing on 29 May 2003 was that the claim made by the Company for payment of on a quantum meruit basis was rejected. In reaching that conclusion, the Tribunal stated that “neither Mr Italiano nor his company can recover on their claim”. Complaint is made in this Court that Mr Italiano never made a claim in his own name, his case being that all of the work was undertaken by him on behalf of the Company. However, the primary relevance of this complaint is that it is said to demonstrate a failure by the Tribunal to distinguish properly between the legal obligations and entitlements of the Claimant and the Company. This is a matter which will be dealt with below.

30 The primary order made by the Tribunal in its decision dated 24 June 2003 was that the Claimant pay to the First Opponent an amount of $74,500 by way of damages for the defective painting services rendered by the Claimant. The Claimant’s case, as presented in this Court, was that the Claimant, not being a party to the proceedings before the Tribunal, could not properly have been made the subject of an order for payment of money.

31 The proceedings in the Common Law Division were commenced by summons filed on 10 December 2003. That summons was in form an appeal from the decision of the Tribunal, made pursuant to s.67 of the CTTT Act. That section, relevantly for present purposes provides:

“67(1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the Supreme Court against the decision.

(2) An appeal is to be made in accordance with the rules of the Supreme Court. The rules of the Supreme Court may provide that an appeal (or such classes of appeal as may be specified in the rules) may be made only with the leave of the court.”

32 Part 51A of the Supreme Court Rules does not generally require that an appeal pursuant to s.67 be made only with leave of the Court. However, it does require that an appeal be instituted within 28 days after the date on which notice of the decision “was given to the person who wishes to appeal by or on behalf of the person who made the decision”: Part 51A, rule 2 “material date”, (b); rule 3(1). Although the Master stated that an appeal “may only be made with leave of the Court”, her Honour in fact dealt with the matter by reference to the need for an extension of time.

33 The Master also noted a “preliminary argument” that the Claimant “is not a party to the proceedings and the provisions to extend time to appeal do not apply”. That argument appears to have been rejected on the ground that, as the Claimant was “bound by” the order of the Tribunal, “it is necessary for him to apply to an extension of time”.

34 In this Court, the Claimant maintained his assertion that he was not a party to the proceedings before the Tribunal. He also maintained that the proceedings commenced in the Common Law Division constituted not only an application for leave to appeal out of time, but proceedings for prerogative relief pursuant to s.69 of the Supreme Court Act. There was some doubt as to whether, merely by seeking an order that the decision of the Tribunal be set aside, the Claimant had adequately invoked the relief available under that provision. In particular, the grounds provided did not in terms assert jurisdictional error or error of a kind which might otherwise attract a grant of prerogative.

35 The Claimant’s case that he was never a party to the proceedings before the Tribunal needed to overcome two alternative contrary contentions. The first was that he was properly joined by the “cross-claim” filed by the First Opponent; the second was that the “cross-claim” constituted a fresh application by the First Opponent.

36 The document entitled “Amended Cross-Claim” included as a first paragraph:

“1. That Giovanni Italiano be joined as an additional Cross-Respondent in matter 01/824369 as the agreement to carry out painting works was directly between Giovanni Italiano and the Respondent/Cross-Claimant.”

37 The Claimant’s position in relation to this document was twofold: first, he pointed out, correctly, that as a matter of fact the Tribunal made no order for his joinder, as sought by Mr Carbone. Secondly, he argued that there was no procedure available to the Tribunal by which a respondent could file a cross-claim against a third party. In the alternative, to the extent that the Tribunal had power to join a third party, it had not properly exercised its powers in the present case.

38 As a matter of principle, there is much to be said for the proposition that proceedings before the Tribunal should be conducted with such attention to procedure as is necessary to ensure that a person who is at risk of suffering an order against him or her is made aware in an appropriate manner of that risk and given an appropriate opportunity to present a case in response to the claim. The failure on the part of the Tribunal to address the question of joinder is, in the abstract, a matter of concern. The present case resulted in the dismissal of a claim in quantum meruit by the Company for an amount of approximately $33,000 and the upholding of the cross-claim against the Claimant in an amount of $74,500. Further, the jurisdiction of the Tribunal under the Home Building Act (1989) (NSW) extended to a claim for an amount up to $500,000: s.48K(1). These amounts are not trivial and, subject to what is to be found in the specific statutory provisions discussed below, suggest that care should be taken so that parties, whether corporations or individuals, are not subjected to quite significant liabilities without being properly put on notice that they are at risk.

39 On the other hand, the failure of the Tribunal to make the order sought by the First Opponent does not mean that the Claimant was not aware of the case sought to be made against him, nor that he was necessarily in ignorance of the fact that damages were sought against him personally. The Claimant gave evidence before the Tribunal and was asked a number of questions unequivocally directed to the proposition that there was no agreement between the First Opponent and the Third Opponent (the Company) but that the work was undertaken and carried out by the Claimant in his own name. The Tribunal reached an affirmative satisfaction that the arrangement, whether contractually enforceable or not, was between the First Opponent and the Claimant, not the Company.

40 Despite being called an “amended cross-claim”, the First Opponent argued the document could properly be treated by the Tribunal as a fresh application, which was before it at the hearing on 29 May 2003 and hence there was no need for a separate order joining the Claimant to the proceedings brought in the name of his company. The Home Building Act requires that a building claim be brought no more than three years after the last date on which any relevant services were supplied: s.48K(3). As the work undertaken by the Claimant, or his company, was not completed until December 2000, it would have been open to the First Opponent to make such a claim for payment of a specified sum of money in relation to the supply of building services up until December 2003.

41 The Claimant’s argument that he was not a party to the proceedings before the Tribunal gave rise to two consequences. The first was that the order for payment was ultra vires because the power of the Tribunal did not extend to making an order that a person who is not a party to the proceedings before it pay money to another person. As this case involves a “building claim” within Part 3A of the Home Building Act, the powers of the Tribunal are those found in s.48O of the Home Building Act. The relevant power is expressed as a power to make an order “that one party to the proceedings pay money to another party or to a person specified in the order …”: s.48O(1)(a). The Claimant was thus correct to assert that the Tribunal acted ultra vires if he were not a “party to the proceedings”, but that contention fails in the circumstances for the reasons set out above.

42 The second limb of his claim was expressed in the following terms:

“As the Claimant was not a party to the proceedings, the appeal provision, as well as time provisions in s.67 of the CTTT Act do not apply to the Claimant: he was not out of time.”

43 The section, so far as relevant, provides:

Appeal against decision of tribunal with respect to matter of law

If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the Supreme Court against the decision.

Home Building Act

Supreme Court Act

44 Nevertheless, the first substantive order sought in the summons was that the decision of the Tribunal “be set aside”, a form of order which would sufficiently reflect an order in lieu of a writ of certiorari. Further, Mr Barham, who appeared for the Claimant, asserted that he put his case on the basis of prerogative relief, as well as leave to appeal out of time, before the Master. In the circumstances, the Court, at the hearing, granted him leave to reformulate his application for relief so as to reflect the general law requirements in that regard.

45 It will be necessary to assess the circumstances outlined above against the statutory scheme.

46 The Master dismissed the summons before her on the ground that an extension of time was required and the delay in commencing proceedings had not been satisfactorily explained by the Claimant. There was no significant challenge to that conclusion in this Court. Rather, the Claimant placed weight upon his contentions that he was not a party, so that the order of the Tribunal was ultra vires and he did not require an extension of time. However, he did assert that, whether or not he had been made a party, the proceedings before the Tribunal were procedurally unfair, with the result that the order was invalid in any event.

47 The criteria relevant to an extension of time extend beyond the reason for delay. In Gallo v Dawson (1990) 64 ALJR 458 at 459F-G (col 1), McHugh J stated:

“When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal … .”

Jackamarra v Krakouer

R v Secretary for the Home Department; Ex parte Mehta

Gallo

“A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved.”

48 A third factor which may be relevant to such a question is the possible prejudice to the prospective respondent if an extension of time were granted. As McHugh J stated in Gallo (p.459G, col 1):

Vilenius v Heinegar

49 Returning to the prospects of success if an extension of time were granted, it may be noted that the grounds identified in the notice of appeal extended to some 18 paragraphs. Some, as already noted, were addressed to the question already considered, namely whether the Claimant had been made a party and was properly subjected to an order. Others involved complaints which appear not to have been raised before the Master. Others again did not clearly give rise to any matter of law on which the Tribunal had made a decision. These grounds need not be investigated further. The only substantial complaint which was articulated in this Court and which requires consideration is the proposition relating to procedural unfairness. The substance of that proposition is that the Claimant did not know, until he attended the Tribunal hearing, that the order for damages sought by the First Opponent was sought against him personally, rather than his alter ego, the Company.

(1) The service argument

50 Before turning to those matters, it is convenient to note an alternative basis upon which the Claimant put his case in this Court, namely that he was not out of time to appeal in any event. Part 51A, rule 3 of the Supreme Court Rules provides:

“3(1) Subject to any provisions made by or under any Act, an appeal must be instituted within 28 days after the material date or within such extended time as the Court may fix.”

Australian Postal Commission v Dao (No. 2)

51 The precise time at which notice of the decision was given is not the source of contention in the present case: the issue raised by the Claimant is whether notice was ever given to the Claimant personally, for the purposes of Part 51A. A “notice of order” was addressed to the Claimant’s company at his home address. He conceded that he received the notice, but contended that it was not given to him, but to the Company, which remained the named applicant on the Tribunal’s files. There is no dispute but that the orders found in the notice identify the Claimant personally as the subject of an order to pay money to the First Opponent.

52 Section 49 of the CTTT relevantly provides:

Notice of decisions and reasons

(1) The Tribunal must, within the time prescribed by the regulations, give notice of its decision in a matter that is the subject of proceedings to the parties in the proceedings.”

Notices, service and lodgement of documents

(1) For the purposes of this Act, a notice … may be given to a person … :

(a) in the case of a natural person – by

(i) delivering it to the person personally, or

(ii) leaving it at, or by sending it by post to, the residential or business address … of the person … .”

Interpretation Act

53 Clause 47 of the CTTT Regulation provides for service of documents. Subsections (1) and (2) deal with the service of applications and summonses. Subsection (3) is relevant for present purposes and provides:

“(3) Service of any other document may be effected in any manner provided by s.78 of the Act or in any of the following ways:

(a) if the person has an address for service on record with the Registry;

(i) by pre-paid ordinary post addressed to the person’s address for service … .”

54 No specific aspect of these provisions is in issue in the present proceedings: rather, it is contended that the notice was not given to the Claimant, although sent to his proper address, because the covering notation over the hand of the agent of the Registrar was directed to the Company. Accordingly, it was argued, he was not, and never has been, given notice by the Registrar of the decision of the Tribunal. Accordingly, time within which to appeal had not commenced to run at any point prior to the filing of the summons in the Common Law Division on 10 December 2003.

55 There is no express requirement in any of these provisions that the name of the party must be correctly stated on the notice, or the envelope containing the notice. Nevertheless, it is appropriate to imply a requirement that the “address” must be sufficient to identify the person concerned as the intended recipient. Further, separate legal entities must be treated separately. Thus, the Supreme Court Rules provide that where a husband and wife are parties to proceedings, service on one shall not have effect as against the other: Part 9, rule 13.

56 That the order came to the notice of the Claimant is not disputed. A notice of judgment was filed in the District Court against the Claimant personally and a copy of the order of the Tribunal was annexed to that notice and to a bankruptcy notice issued by the First Opponent against the Claimant personally. The Claimant did not suggest in this Court that he was not aware of the existence of the order of the Tribunal. Indeed, in the Common Law Division, the Claimant filed an affidavit in which he identified himself as the sole director and secretary of the Company. He further gave evidence that the Company had received the notice of order from the Tribunal on or about 30 June 2003. His affidavit continued:

“In early July 2003, I sought advice about the notice of order from Stoikovich Macri Solicitors.”

“The [Claimant] was seeking advice from our firm as to whether or not there were any grounds for appealing the order of the Tribunal.”

57 It is obviously correct to say that service on one person does not constitute service on another, where the latter has no knowledge of the document, no matter how close their connection in social or practical terms. Nevertheless, where a document is served on a company, which can only take note of the document through the act and apprehension of an individual agent, there is a certain artificiality in saying that the agent, who thus becomes aware of the existence of the document and its relevance to himself has not relevantly been “given” the notice. In substance, the question is whether the statutory provisions, despite their facultative terminology, provide an exhaustive statement of the mechanisms by which a notice can be given.

58 A similar issue was addressed by McInerney J in the Supreme Court of Victoria in Pino v Prosser [1967] VR 835. The case involved service of a writ, requiring personal service on the husband, by handing a copy to his wife, who handed it to him on the same evening. When, two days later, the process server returned to the house to recover the writ so as to effect personal service on the husband, he was told by the wife that her husband was not at home and had taken the writ to his solicitor. McInerney J noted authority for the proposition that “service on the wife, or a known agent of the defendant is not good service”: Ibid at 837 (30). His Honour continued:

“If that passage correctly states the law, the conclusion is, on the facts of this case, remarkable to the point of seeming absurdity, in that the defendant who, on his own affidavit admits that he received the writ on 28 March from his wife and instructed his solicitors on 10 April, should be held not to have been served.”

Hope v Hope

“The object of all service is of course only to give notice to the party to whom it is made, so that he may be aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the court may feel perfectly confident that service has reached him, every has been done that is required.”

59 In Guss v Magistrate’s Court at Victoria [2003] VSC 365, Osborn J considered a challenge to the valid service of a summons to answer a charge. The summons had not, as required by s.34 of the Magistrate’s Court Act 1989 (Vic) been delivered to the defendant personally, nor had a true copy been left at the “most usual place of residence or of business” with a person apparently not less than 16 years of age. The business address at which the summons had in fact been left was the address of a corporation of which the plaintiff was not a director and which did not satisfy the statutory description. Nevertheless, he agreed in cross-examination that he had been notified of receipt of the copy of the summons and had received a copy some days later. In following Pino, his Honour noted at [14]:

“It is perhaps a tribute to the plaintiff’s determination to avoid a hearing on the merits that it appears that no court has previously been faced with the argument that despite sworn evidence that a person in fact received delivery of a summons left for him nevertheless such summons was not served in accordance with the Act and its predecessors.”

60 A similar conclusion was accepted by Young J in Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542. The defendants had sought a declaration that a summons had not been duly served on them in circumstances where, although they had received it, the mechanism by which it had come to their attention was by lodgement in a document exchange box. His Honour held (at 544B):

Hope v Hope

Pino v Prosser

61 This approach was recently followed by Barrett J in Ketrim Pty Ltd v AS&L Pty Ltd (2004) 52 ACSR 252 at [16]-[18]. His Honour noted that a similar approach had been adopted in relation to service by facsimile transmission in Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2004] 1 Qd R 140 and Emhill Pty Ltd v Bonsoc Pty Ltd (2004) 50 ACSR 305. The latter case, a decision of Mandie J in the Supreme Court of Victoria, was, in a sense, the reverse of the present case in that proof of service upon a director was found to be proof of service on the company. At [28] his Honour noted:

“Of course, proof of service of a document upon one director will not necessarily constitute proof that the document has actually come to the attention of the company of which he or she is a director. But in the present case Mr Cook is the sole director and secretary (and indeed shareholder) of the plaintiff company, and thus he is that company’s directing mind and will. Not only did service of the document upon Mr Cook of necessity bring the document to the actual attention of the plaintiff company, but the evidence here is that Mr Cook expressly accepted service of the statutory demand on behalf of the plaintiff.”

62 The CTTT Act merely requires that the Tribunal must “give notice of its decision”: s.49(1). Although s.78 provides for certain means by which notice can be given, it is facultative and not exhaustive. Once satisfied that the Claimant in fact received notice of the decision (together with the reasons for decision) the statutory requirement was satisfied and time for appeal commenced to run. As a result, by the time the application for leave to appeal was made pursuant to the summons filed on 10 December 2003, an extension of time was required, if the proceeding in the Common Law Division was indeed a statutory appeal.

(2) The joinder issue: statutory non-compliance

63 The primary ground agitated by the Claimant in these proceedings was that the Tribunal had failed to join him in the proceedings commenced by the Company. Although he relied upon statutory provisions contained in the CTTT Act, he also invoked, during the course of the hearing, s.48Q of the Home Building Act. At the time of the hearing, judgment was reserved in the High Court in SAAPv Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24. That judgment, delivered on 18 May 2005, gives support to the contention that, in particular circumstances, breach of a mandatory statutory procedure may lead to invalidity of any resulting decision. The present statutory context is different in significant respects from the Migration Act 1958 (Cth) which was considered in that case. Nevertheless, the principles to be derived from SAAP must be applied by this Court. In my view, the statutory scheme does not make mandatory any particular obligation with respect to joinder, although other aspects of the scheme do impose mandatory requirements on the Tribunal.

64 Dealing first with the question of joinder, the only express provision permitting the Tribunal to join a person as a party in proceedings before it is that found in s.26 of the CTTT Act. Subsection (4) of that provision provides:

“(4) If at any time the Tribunal is of the opinion that a person should be joined as a party in proceedings to which this section applies, the Tribunal may, by notice in writing given to the person or by oral direction during the proceedings, join the person as a party in the proceedings.”

65 Nevertheless, there is a general provision relating to joinder of parties to be found in clause 29 of the CTTT Regulation. That clause provides:

Joinder of parties

(1) If the Tribunal is of the opinion that a person has a sufficient interest in the dispute to which an application to the Tribunal relates that the person has not been served with notice of the application, the Tribunal may make an order directing that the person be joined either as an applicant or as a respondent as appears to the Tribunal to be appropriate, and notice of the proceedings is to be served accordingly.”

66 It is far from clear that the Tribunal addressed itself to its powers under this clause, or that its attention was directed to the clause. Nevertheless, it would clearly have been open to the Tribunal to be satisfied that the dispute to which the application related was one in which the Claimant had “a sufficient interest” to be properly joined. The dispute related to the painting of the First Opponent’s home, a relevant question being whether the work had been carried out by the Claimant or by the Company, the Third Opponent. However, the Tribunal did not make any order directing that the Claimant be joined, nor was notice of the proceedings formally served on the Claimant, perhaps because he had already received the amended cross-claim. Accordingly, if this clause is to be relied upon by the First Opponent, there is a question as to whether non-compliance with its terms is fatal to the proposition that the Claimant was joined in the proceedings.

67 Section 32 of the CTTT Act is headed “Amendments and irregularities”. Subsection (3) provides:

“(3) If a provision of this Act or the regulations is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal otherwise determines.”

Supreme Court Act

68 Before turning to answer those questions, it is convenient to note the terms of s.28, the relevant parts of which read as follows:

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.

(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.

(5) The Tribunal:

(a) is to act as expeditiously as is practicable, …”

69 Although s.28(2) appears to envisage that the general law rules of procedural fairness will have application, in some specific instances the CTTT Act makes express provision in that regard. Thus, s.35 is in the following terms:

Opportunity for parties to present case

The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity:

(a) to call and give evidence and otherwise present the party’s case (whether at a hearing or otherwise), and

70 Provisions similar to s.28(3) are not uncommon in statutory schemes establishing tribunals. A similar provision, then found in s.108(1)(b) of the Anti-Discrimination Act 1977 (NSW), was considered by this Court in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26. The joint judgment of Gleeson CJ and Handley JA noted (at 29F):

“The precise effect of this section is not immediately clear. Section 118(1) provides that a party aggrieved by a decision of the tribunal may appeal to the Supreme Court on a question of law and subs. (3) provides that the Court shall hear and determine the question of law arising on the appeal and may make such order in relation to the appeal as to it seems fit. It is apparent therefore that s.108(1)(b) does not release the tribunal from the obligation to apply rules of law in arriving at its decisions. If that had been the effect of s.108(1)(c) (sic) there would have been no point in conferring a right of appeal to the Supreme Court on a question of law. The apparently conflicting provisions must, as a matter of construction, be reconciled … .”

Migration Act

Minister for Immigration and Multicultural Affairs v Eshetu

Qantas Airways Ltd v Gubbins

“They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.”

71 The Claimant sought to evade the operation of s.32(3) by reliance upon s.48Q of the Home Building Act, being part of a scheme with respect to building claims introduced into the Home Building Act by the Home Building Legislation Amendment Act 2001 (NSW) which commenced on 1 January 2002. Non-compliance with that provision, he argued, was not excused as a mere irregularity, because s.32(3) applied only with respect to non-compliance with the CTTT Act and the regulations under it.

72 Section 48Q of the Home Building Act relevantly provides:

“48Q Power to join persons as parties to proceedings

Home Building Act

73 Where there are two provisions governing one aspect of the Tribunal’s procedure, in different terms, it is clearly arguable that the one which deals with a specific part of the Tribunal’s jurisdiction will operate so as to exclude or qualify the operation of a different provision applying generally to the Tribunal’s proceedings. However, in the present case, s.48Q of the Home Building Act is in terms which reflect s.26(4) of the CTTT Act, but effectively expand its operation to a further class of proceedings. In addition, s.48Q extends beyond circumstances involving a person having a joint liability. It thus bears analogy with clause 29 of the CTTT Regulation, although it is somewhat differently worded. These considerations suggest it may better be seen as facultative than restrictive.

74 Whilst it may be conceded that the express terms of s.32(3) of the CTTT Act, requiring certain non-compliance to be treated as an irregularity, do not apply to s.48Q, it does not follow that a failure to comply with s.48Q, by giving an express direction, renders the proceedings a nullity in relation to the person intended to be joined but not expressly joined.

75 Whether or not s.48Q has such an effect depends upon questions of statutory construction: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93]. As stated in the joint judgment in that case:

“The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particular in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.”

Interpretation Act

76 For present purposes, the statutory scheme should be understood to include both the Home Building Act and the CTTT Act. Because the Home Building Act conferred on the CTTT a jurisdiction to order payment of significant sums, it is arguable that a stricter approach to procedural steps may be expected within the terms of the Home Building Act. On the other hand, there is nothing in the Home Building Act which expressly denies the operation of those provisions of s.28 of the CTTT Act which have been set out above. Section 28(3) can have a variable operation, as explained in Qantas Airways Ltd v Gubbins. As noted in the joint judgment referred to above (at p.30E) in relation to the words “equity, good conscience and the substantial merits of the case”:

Moses v Parker; Ex parte Moses

77 In these circumstances, s.48Q should not be understood as imposing an obligation to proceed in strict compliance with its terms, but rather as a non-exhaustive power. Accordingly, that aspect of the argument sought to be raised by the Claimant in the present proceedings should not succeed.

78 In these circumstances, it is unnecessary to consider whether the provision to the Claimant of the cross-claim seeking his joinder in paragraph 1, could appropriately have been treated as a fresh application.

79 The conclusion that the failure to make an express order joining the Claimant did not invalidate the decision does not exhaust the relevance of the factual concern. The failure to make such an order had broader consequences for the compliance by the Tribunal with its statutory mandate. Thus, it gives rise to separate questions as to whether the proceedings were procedurally unfair and, separately, whether there was a breach of other mandatory statutory requirements. These matters will be addressed below, in that order.

(3) Procedural fairness claim

80 In one sense, it may seem curious to seek to divorce questions of procedural fairness derived from the general law, albeit incorporated by s.28(3) of the CTTT Act, from questions of mandatory and specific statutory procedures. To deal with the matters in this order is unusual because the content of procedural fairness is capable of control by the Parliament and must in any event be determined in its statutory context. On the other hand, the general law principles are relevant to the effect of the specific statutory requirements and inform the consequences of breach, where those consequences are not made explicit by the statute. In the present case, the statutory provisions tend to expand, to an extent, the scope of obligations which might otherwise have been implied: but because they serve the goals of procedural fairness, invalidity may more readily be inferred as the intended consequence of breach.

81 Accepting his claim of ignorance of that significant change in the nature of the proceedings, he nevertheless accepted that he had received a copy of the “amended answer” and “amended cross-claim” from the First Opponent, two days before the hearing. He had not read them, but had referred them to a “building advocate” who had been appearing for the Company in prosecuting its claim in the Tribunal. The Claimant filed an affidavit in the Common Law Division annexing a copy of the letter of 23 May 2003 with the attached amended pleadings in the Tribunal. He further noted that at the hearing before the Tribunal on 29 May 2003 the Company was represented by the builder’s advocate, whilst he represented himself. He noted, no doubt correctly, that the matter proceeded before the Tribunal “without any reference being made to myself being joined to the proceedings personally”. He gave oral evidence before the Master that he did not read the documents before he gave them to the builder’s advocate. He gave no evidence as to whether he had communicated with the advocate as to this matter. And, although it may not count for much, the advocate indicated to the Tribunal that he was appearing for Mr Italiano as well as the Company.

82 In proceedings for prerogative relief, facts relevant to establishing procedural unfairness may be found by the reviewing court. Although the evidence is sparse, one might infer that there was some confusion in the mind of the Claimant as to his role in the proceedings. That confusion was not helped by the failure of the Tribunal to make any express order in relation to the application that he be joined in those proceedings. Nevertheless, it must have been clear well before the completion of the hearing that his own role as an individual was a live issue before the Tribunal because the question was agitated as to whether he had, in his dealings with the First Opponent, ever mentioned the existence of his company. The Tribunal found on the facts that he had not and that there was no agreement involving the Company.

83 There seems little doubt that, had the Claimant made an application, at any stage between the receipt of the amended pleadings from the First Opponent and the completion of the hearing before the Tribunal on 29 May 2003, for an adjournment so that he could address the claim made against himself personally, it must have had good prospects of success. In fact an application for an adjournment was made by the builder’s advocate, but only on the basis that he was unaware that the matter was proceeding by way of rehearing and that he had to rerun his case for the Company, seeking a payment on a quantum meruit basis. That adjournment application was refused. No application was made by the Claimant personally, or by the builder’s advocate on his behalf, that the matter be adjourned to allow him to consider his personal position in relation to the cross-claim.

84 Although a number of additional claims added to the end of the amended cross-claim given to the Claimant two days before the hearing, the substance of the cross-claim as made against the Company in February 2002 had been known to the Claimant for more than a year. The live issue, which was both novel and contested, was with whom the First Opponent had sought to reach an agreement for the painting services rendered by the Claimant.

85 A claim based on procedural unfairness, in these circumstances, must demonstrate that the confusion in the mind of the Claimant was such that he cannot be said to have foregone a reasonable opportunity to make an application for an adjournment, or that the circumstances were otherwise such that the Tribunal itself had an obligation to consider offering an adjournment.

86 In the present case, there was a hearing at which the Claimant had the opportunity to seek an adjournment so that he could better prepare a defence to a case of which he had inadequate notice. His failure to make an application in that regard, absent some satisfactory explanation, itself grounded on procedural unfairness, is fatal to this aspect of his claim. He did not give evidence before the Master that his failure to seek an adjournment was because at no stage prior to the completion of the hearing, did he understand that any claim was made against him personally. Had he given such evidence, it could well have been subjected to serious challenge. In any event, it was a matter of fact for him to establish before the Master and that he did not seek to do.

87 Absent such evidence, he cannot succeed in this Court because to do so he must ask this Court, in effect, to consider and determine in his favour an application for an adjournment which he did not make before the Tribunal. Such a request would involve a rehearing of an aspect of the Tribunal proceeding. No such factual inquiry can be undertaken by way of judicial review or on an appeal on a question of law. It is for an analogous reason that, where a breach of procedural fairness is established, the Court will not inquire into the consequences in the particular circumstance, unless “it is confident that the breach could not have affected the outcome”: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [104] (McHugh J).

88 An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant “lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment”, as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]:

“A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations.” : at [37].

148 Where as here, a complaint amounts to a denial of procedural fairness, the Court is not dealing with fairness as an abstract concept. As was put by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam [2003] 214 CLR 1 (at [37]):

149 In some cases the manner in which the parties and the CTTT conduct proceedings may show that albeit that some procedures are not formally observed, the parties by their conduct may be taken to have implicitly accepted that further compliance with suggested formalities was otherwise waived. The real question concerns whether any and if so which procedural step requires to be strictly observed in the absence of which the proceedings are a nullity.

The cross-claim issues

150 The cross-claim questions which have been raised for consideration include:

· whether a cross-claim might be filed before the CTTT against an applicant and if so what the procedures to permit a cross-claim were or could legitimately have embraced;

· whether a cross-claim might be filed against a person not being the applicant and if so what the procedures to permit such a cross-claim were or could legitimately have embraced.

151 It may be noted that although only coming into effect after the determination of the current proceedings, the CTTT “Chairperson's Directions in respect of Home Building Division Claims or Disputes in excess of $25,000” effective from 1 August 2003, require that where a respondent wishes to seek orders against the applicant, the respondent must lodge a separate application to be called a "cross-application". The directions then provide that applications and cross-applications will be heard and determined together unless circumstances preclude such a course of action.

152 In truth cross-claims are simply applications of a certain type. Notwithstanding that the Consumer, Trader and Tenancy Tribunal Regulation 2002 stipulated only for the manner of lodgment of “Applications” to the CTTT, at the material time there was no statutory or regulatory inhibition disentitling the CTTT from allowing cross-applications [whether so described or described as cross-claims] by a respondent. The regulations promulgated at the time prescribed the requisite fees payable in respect of applications which would have been apposite also to cross applications/cross claims.

Notification of amendments

153 Section 32 of the Act clearly empowered the CTTT to make any amendments to any document filed in connection with the proceedings which was considered to be necessary in the interests of justice and to do so at any stage of the proceedings, but only after notification to the party to whom the amendment related.

Shortcomings of the proceedings

154 It is apparent that in terms of the above requirements, the proceedings before the CTTT exhibited considerable shortcomings. The delivery of the undated and unsigned cross-claim to the registry could not itself have had the effect of making Mr Italiano a party to the proceedings. Neither the amended answer nor the amended cross-claim were served upon Mr Italiano. Albeit that he was a director of the Company upon which the documents were served, he ought to have been personally served in his own right. The application to amend does not appear to have been formally considered, if indeed considered at all. The record appears to suggest that Mr Durie simply proceeded to conduct the proceedings upon the unstated assumption that the amended answer and the amended cross-claim were before him and that Mr Italiano had been joined both as an additional applicant, and as a respondent to the amended cross-claim. There was no order allowing these amendments, nor allowing joinder.

155 There is a form which is the usual form for applications in the form of the application made by the Company in these proceedings. The amended cross-claim was not in that form and did not approximate that form. It appears that the reason why the procedure at the CTTT was for a cross-claim to proceed by way of a separate claim, which would then be heard with the original claim, was that the CTTT collected application fees in relation to each claim. There was no provision for an application fee in relation to a cross-claim in regulation 10.

156 There is substance in the proposition that had Mr Carbone commenced fresh proceedings it would have been quite clear that they were brought against Mr Italiano and there would likely have been separate directions issued for both sets of proceedings to be heard together.

157 As counsel for Mr Italiano submitted:

Did the failure to comply with section 48Q render the proceedings a nullity?

158 I agree with Basten JA that the statutory scheme should be understood to include both the Home Building Act and the CTTT Act.

159 I am in agreement with Basten JA in that:

· the express terms of section 32(3) of the CTTT Act, requiring certain non-compliance to be treated as an irregularity, do not apply to section 48Q;

· whether or not section 48Q has the effect that a failure to comply with this section by giving an express direction, renders the proceedings a nullity in relation to the person intended to be but not expressly joined depends upon questions of statutory construction: cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93].

160 It is clear that "[t]he words 'equity, good conscience and the substantial merits of the case' are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found": Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 30 per Gleeson CJ and Handley JA [in turn citing Santos Ltd v Saunders (1988) 49 SASR 556 and 564].

161 Provisions approximating that to be found in section 28 of the CTTT Act: "are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as appropriate to tribunals": Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gleeson CJ and McHugh J at 628.

162 Gleeson CJ and McHugh J went on to make the important observation that "[t]he extent to which [such provisions] free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases...". That is the situation which presently faces this Court in these proceedings.

163 These difficulties are amply demonstrated in the recent decision of the High Court delivered on 18 May 2005 in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24: cf the clear differences in approach by McHugh, Kirby and Hayne JJ, of the majority and by Gleeson CJ and Gummow J, who dissented. McHugh J (at [73]) made the point that the question was not easy to answer in relation to the section [s 424A of the Migration Act 1958 (Cth)] there under consideration [the object of which was to provide procedural fairness to an applicant before the Refugee Review Tribunal by alerting the applicant to material that the Tribunal considered to be adverse to the applicant's case and affording the applicant the opportunity to comment upon it]. The judgment points up that breach of a mandatory obligation may lead to invalidity of a resulting decision.

164 As already mentioned the additional integer concerns the fact that there is nothing in the Home Building Act which expressly denies the operation of the material provisions of section 28 of the CTTT Act.

165 There are a number of parameters which may be taken into account in terms of the purposive construction here required. These include:

· the fact that the Home Building Act conferred on the CTTT a jurisdiction to order payment concerning building claims not exceeding $500,000;

· the extremely high significance of the regular communication of the proposed joinder being made:

- to existing parties to the proceedings, and also

· the grave difficulties which may well arise in circumstances where it is contended that the CTTT was proceeding upon an unstated assumption that persons who had neither received from the CTTT notice in writing of their joinder nor an oral direction of such joinder are to be regarded as nonetheless joined to the proceedings.

166 It has been said that "it is a deep-rooted principle of law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard": Commissioner of Police v Tanos (1958) 98 CLR 383 at 395 per Dixon CJ and Webb J. The significance of the taking of the step joining a person into proceedings requires no emphasis. Whilst legislation may plainly be construed as eroding the need for even the oral making of an order for joinder, it is necessary for special caution before being in a position to reach any such construction.

167 Whilst it appears to be the case that of the other fifteen Acts which confer jurisdiction on the CTTT, the Home Building Act stands alone in terms of detailing the steps to be taken by the CTTT in joining non-parties to the proceedings before it, I approach the issue upon the basis that this is mere happenstance to which no particular significance should be attributed. [albeit that Credit Act 1984 in section 148 gives the CTTT power to join particular persons as parties to the proceedings it does not regulate the steps to be taken in any such joinder; cf to like effect the Retirement Villages Regulation 26 made pursuant to the Retirement Villages Act 1999].

168 It is reasonable to infer that the legislature [doubtless guided in this respect by the draftsperson of the Home Building Act who must be taken to have been aware of the terms of section 26 (4) of the CTTT Act] was cognisant that section 26(4) [by dint of the classes of proceedings prescribed by the regulations] applied only to proceedings in which two or more persons had joint liability. The relatively small step then taken was in effect to include section 48Q into the Home Building Act in close to the identical language as had been used [but in respect of a joint liability environment] in section 26 (4) of the CTTT Act.

169 Nonetheless in my view the joinder of a person to CTTT proceedings constitutes such a critical procedural step that upon its proper construction section 48Q did impose an obligation to proceed in strict compliance with its terms. The decision of those in the majority in SAAP (supra) provides some assistance in support of the proposition that having regard to the language of the relevant provisions and the scope and object of the whole statute it is seen to be a purpose of the legislation that an act done in breach of section 48Q should be invalid. The section imposes an obligation to proceed in strict compliance with its terms.

170 The consequence is clear. The section 48Q requirement to join a party by notice in writing given to that person or by oral direction given during the proceedings being mandatory, failure to comply with that requirement meant that the CTTT did not discharge its statutory function. Using the words of McHugh J (at [77]) in SAAP "[t]here can be no 'partial compliance' with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not."

171 The conclusion which follows is that as Mr Italiano was not a party to the proceedings the CTTT acted ultra vires.

172 This conclusion follows notwithstanding the answer which I would have given to the question of whether or not that which was not done expressly was or should have been, well understood by those present at the CTTT hearing and participating in its proceedings. The issue concerns whether or not the manner in which Mr Durie proceeded to conduct the proceedings [in terms of an unstated assumption that the amended pleadings were before him and that Mr Italiano had been joined importantly as a respondent to the amended cross-claim] was shared with the parties.

173 In that regard a careful examination of the transcript and reasons for decision of 24 June 2003 satisfies me that the hearing was so conducted upon the above-described unstated assumption. The clear indicia that the hearing was so conducted include:

· Mr Luna, described as a builder's advocate, accepted that he was appearing for Mr Italiano [transcript 2];

· the transcript records the proceedings as "Re: Giovanni Italiano v Domenic Carbone";

· both the amended answer and the amended cross-claim were adverted to in the cross examination of Mr Italiano, reference being made to the amended answer as having been filed in the proceedings [transcript 27];

· express reference was made to the amended answer and to the amended cross-claim (at [transcript 106]) where Mr Carbone sought to tender the documents but was informed by Mr Durie that there was no need to take this step;

· in the reasons for decision Mr Durie (at [5]) stated that he had declined an adjournment application having reached the conclusion "that if Mr Italiano were not ready for the hearing, it was… because he was the 'author of his own misfortune". He further referred to there not having been any prejudice caused to Mr Italiano;

· under cross-examination it was put to Mr Italiano [at transcript 91] that no stage had he made any mention of the involvement of his company;

· the following reference was later made [at transcript 105] : "[W]e've finished your case, Mr Italiano";

· the cover page for the decision describes the Applicant as "Italiano's Painting and Decorating Pty Ltd and Giovanni Italiano"; and

· the terms of the decision make plain that Member GJ Durie was well aware of the distinction between the company and Mr Italiano, adverting as he did to the issue as to whether the agreement was with the company rather than with Mr Italiano personally, considering the question of damages for which Mr Italiano was liable, dismissing the claim by the company and proceedings to make orders against Mr Italiano personally.

Prerogative relief

Procedural fairness - The adjournment application

174 Whilst the above conclusion renders it unnecessary to determine whether or not practical injustice has been shown in the particular circumstances, my own view in relation to this matter is that it raises an entirely disparate ground for holding that procedural fairness was denied to Mr Italiano.

175 The question which arises is as to whether an adjournment of the hearing ought to have been ordered in the particular circumstances which obtained, it being clear that “a refusal to grant an adjournment can constitute a failure to give a party…the opportunity of adequately presenting his case”, Sullivan v Department of Transport (1978) 20 ALR 323 per Deane J; cf Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] cited by Basten JA.

176 Again one is thrown back to examining the extent to which the measure of natural justice that the Act requires to be given was complied with: cf Brodyn Pty Ltd t/a Time Cost and Quality v Davenport [2004] NSWCA 394 per Hodgson JA (at [54]).

177 I refer here to the extremely short time [three business days] between the date of service of the 23 May 2003 letter enclosing the amended answer and cross-claim and the 29 May 2003 rehearing. The radical new element, now for the very first time sought to be injected into the hearing, indeed required very careful consideration. Notwithstanding that this was not the basis for the adjournment application, it is plain enough from the transcript that Mr Luna sought to make clear that he was unaware that certain matters required to be proven on that occasion, having apparently been unaware that it would be necessary to again present a case under section 94 (1 A) of the Home Building Act.

178 One question which arises is whether or not the failure in the circumstances of Mr Italiano, through Mr Luna [who was not a legal practitioner], to seek an adjournment on this basis should have the effect that the matter should be regarded as foreclosed by that forensic decision.

179 In many circumstances the failure to ground an application for an adjournment on a substantive basis serves, particularly where a party was represented, to foreclose that party from re-agitating that issue in this Court: Kotowicz v Law Society of New South Wales, unreported, Court of Appeal, 11 December 1978, per Moffitt P at 3, [Hutley and Mahoney JJA agreeing].

180 The issue concerns whether notwithstanding that no submission was addressed by reference to this particular matter, the circumstances demonstrate that the CTTT member ought himself to have taken a material consideration into account but failed to do so. The proposition is that the circumstances now raised an entirely new scenario where Mr Italiano was himself to be a respondent to the cross-claim. The proposition is that the proposed new joinder constituted a vital new issue requiring an informed approach to presentation of his case. There had been no leave granted to file the amended cross-claim. There had been no leave granted to file the amended answer.

181 The matter falling for consideration is whether it ought to have been clear to the CTTT member:

· that in the absence of Mr Italiano’s formal joinder into the proceedings by order, it was inappropriate to require that the hearing proceed on the day in question; and

· that a principled exercise of his discretion to adjourn the proceedings required that the hearing date be vacated to permit Mr Italiano to properly prepare to litigate a case to which he was now joined as a party.

182 I agree with Basten JA that albeit the sparsity of the evidence, one may readily infer that there was some confusion in the mind of Mr Italiano as to his role in the proceedings.

183 In my view there seems little doubt that had an application been made on any occasion between receipt of the amended pleadings and the completion of the hearing before the CTTT for an adjournment grounded upon Mr Italiano needing to address the claim made against himself personally, it ought to have been granted.

184 Having closely considered this matter it seems to me that even had it been the case that section 48Q properly construed required to be regarded as a non-exhaustive power and not as imposing an obligation to proceed in strict compliance with its terms, nonetheless the discretion of the CTTT is seen to have miscarried for the reason that the application for the adjournment should have been granted. There were simply too many areas where failures to comply with the procedures laid down had taken place. Even had it been necessary to treat non-compliance with the sundry procedures laid down and earlier referred to as an irregularity, this would not address the procedural fairness parameter. Procedural fairness was denied to Mr Italiano where the CTTT failed to take into account the above-described matter of special significance on the application for the CTTT hearing to be adjourned. The new parameter injected by the new joinder of parties was a significant event itself entitling an adjournment. Had that been the basis for an application for an adjournment the interests of justice would have required that the hearing be adjourned.

Orders

185 The appropriate course is to make the following orders:

(1) Grant leave to the Claimant to amend the pleadings so as to reflect the proposed amendments to the draft notice of appeal and to file the amended notice of appeal;

(2) Order that the time for the filing of the amended summons be extended to 14 days after the date of handing down of the judgment;

(3) Grant leave to appeal;

(4) Allow the appeal from the Master;

(5) Set aside the judgment and orders of the Master made on 2 July 2004;

(a) Order that the decision of tribunal member Durie and the Consumer Trader and Tenancy Tribunal dated 26 June 2003 in proceedings No. HB 03/14211 be set aside;

Costs

186 The appropriate course is to make the following costs orders:

(1) Order that the first Opponent pay the Claimant's costs of the appeal in this Court and to have a certificate under the Suitors Fund Act if otherwise qualified;

(2) Order setting aside the costs orders of the Master and in lieu thereof order that the First Opponent pay the Claimant's costs in relation to the proceedings in the Common Law Division and to have a certificate under the Suitors Fund Act if otherwise qualified.

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16/08/2005 - Typographical error - Paragraph(s) 171

Citations

Italiano v Carbone [2005] NSWCA 177

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Statutory Material Cited

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Boghossian v Warner [2000] NSWCA 27

Brodyn Pty Ltd v Davenport [2004] NSWCA 394

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CITATION:	Italiano v Carbone & Ors [2005] NSWCA 177 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	02/05/05
JUDGMENT DATE:	2 June 2005
JUDGMENT OF:	Spigelman CJ at 1; Basten JA at 22; Einstein J at 121
DECISION:	Orders (1) Grant leave to the Claimant to amend the pleadings so as to reflect the proposed amendments to the draft notice of appeal and to file the amended notice of appeal (2) Order that the time for the filing of the amended summons be extended to 14 days after the date of handing down of the judgment (3) Grant leave to appeal (4) Allow the appeal from the Master (5) Set aside the judgment and orders of the Master made on 2 July 2004 (6) In lieu of the orders of the Master (a) Order that the decision of tribunal member Durie and the Consumer Trader and Tenancy Tribunal dated 26 June 2003 in proceedings No. HB 03/14211 be set aside (b) Order that the proceedings No. HB/14211 be remitted to the Consumer Trader and Tenancy Tribunal to be determined according to law. Costs (1) Order that the first Opponent pay the Claimant's costs of the appeal in this Court and to have a certificate under the Suitors Fund Act if otherwise qualified (2) Order setting aside the costs orders of the Master and in lieu thereof order that the First Opponent pay the claimant's costs in relation to the proceedings in the Common Law Division and to have a certificate under the Suitors Fund Act if otherwise qualified.

CATCHWORDS:	Administrative law - Judicial review - Natural justice - Jurisdictional error - Procedural fairness - Consumer, Trader and Tenancy Tribunal - Whether particular procedures in Tribunal flawed by failure to comply with mandatory statutory procedures - Legislation enabling Tribunal by notice in writing or by oral direction to join a person as a party in the proceedings - Tribunal fails to make order joining claimant as party to cross-claim - Whether claimant joined into proceedings by "cross-claim" filed before Tribunal - Whether proper construction of legislation showed obligation to proceed in strict compliance with its terms - Failure to serve claimant with orders of Tribunal - Whether adjournment of Tribunal hearing ought to have been ordered to give a party proper opportunity of adequately presenting his case - Practice - Joinder of party
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 (Cth) Anti-Discrimination Act 1977 (NSW) Australian Securities Commission Act 1989 (Cth) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Credit Act 1984 (NSW) District Court Act 1973 (NSW) Fair Trading Act 1987 (NSW) Home Building Act 1989 (NSW) Home Building Legislation Amendment Act 2001 (NSW) Interpretation Act 1987 (NSW) Magistrates' Court Act 1989 (Vic) Migration Act 1958 (Cth) Retirement Villages Act 1999 (NSW) Retirement Villages Regulation 2000 Suitors' Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW) Supreme Court Rules 1970 (NSW)
CASES CITED:	Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 Australian Postal Commission v Dao (No. 2) (1986) 6 NSWLR 497 Bayram v Benton (1994) 117 FLR 414 Board of Education v Rice (1911) AC 179 Boghossian v Warner [2000] NSWCA 27 Brodyn Pty Ltd t/a Time Cost and Quality v Davenport [2004] NSWCA 394 University of Ceylon v Fernando [1960] 1 All ER 631 Commissioner of Police v Tanos (1958) 98 CLR 383 Emhill Pty Ltd v Bonsoc Pty Ltd (2004) 50 ACSR 305 Gallo v Dawson (1990) 64 ALJR 458 Guss v Magistrates' Court at Victoria [2003] VSC 365 Harkness v Bell's Asbestos & Engineering Ltd [1967] 2 QB 729 Hodgkinson v Companies Auditors and Liquidators Disciplinary Board & ASC (1994) 50 FCR 504 Hong Ye v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 327 Hope v Hope (1854) 4 De G.M. and G. 328 House v The King (1936) 55 CLR 499 Howship Holdings Pty Ltd v Leslie (No 2) (1996) 41 NSWLR 542 Hutley v Meigan (1997) ASC 56-370 Jackamarra v Krakouer (1998) 195 CLR 516 Ketrim Pty Ltd v AS&L Pty Ltd (2004) 52 ACSR 252 Kioa v West (1985) 159 CLR 550 Kotowicz v Law Society of New South Wales (unreported, Court of Appeal, 11 December 1978, Moffitt P) Local Government Board v Arlidge [1915] AC 120 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Mobil Oil Australia Pty Ltd v the Federal Commissioner of Taxation (1963) 113 CLR 475 Moses v Parker; Ex parte Moses [1896] AC 245 Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2004] 1 Qd R 140 Plaintiff s157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Pino v Prosser [1967] VR 835 Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Prudential-Bache Securities (Australia) Ltd v Warner [1990] FCA 1143 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Ridge v Baldwin [1963] 2 WLR 935 Rust v Barnes (1980) 2 NSWLR 727 Russell v Duke of Norfolk [1949] 1 All ER 109 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Santos Ltd v Saunders (1988) 49 SASR 556 Sullivan v Department of Transport (1978) 20 ALR 323 Touma v Saparas [2000] NSWCA 11 Vickers v Mayne [unreported, Supreme Court of Western Australia, Full Court, Kennedy, Franklyn and Walsh JJ, 17 July 1998] Vilenius v Heinegar (1962) 36 ALJR 200
PARTIES:	Giovanni Italiano (Claimant) Domenic Carbone (First Opponent) Consumer Trader and Tenancy Tribunal (Second Opponent) Italiano's Painting and Decorating Pty Ltd (Third Opponent)
FILE NUMBER(S):	CA 40665/04
COUNSEL:	Mr PM Barham (Claimant) Mr RW Tregenza, Ms K Welshman (First Opponent)
SOLICITORS:	Stoikovich Macri (Claimant) Carbone & Associates (First Opponent) Submitting Appearance (Second Opponent)

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 30108/03
LOWER COURT JUDICIAL OFFICER:	Master Harrison