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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Italiano v Carbone [2005] NSWCA 177
Case
[2005] NSWCA 177
Decision Date
CaseChat Overview and Summary
The case of *Italiano v Carbone* concerned an appeal to the Court of Appeal of New South Wales, presided over by Spigelman CJ, Basten JA, and Einstein J. The dispute involved allegations of jurisdictional error and breaches of natural justice in proceedings before the Consumer, Trader and Tenancy Tribunal. Specifically, the claimant argued that the Tribunal had failed to comply with mandatory statutory procedures, including the proper joinder of parties and the provision of adequate notice and opportunity to present a case.
The primary legal issues before the Court of Appeal were whether the Tribunal had erred in its construction and application of the legislation governing the joinder of parties, and whether the claimant had been afforded procedural fairness. This included determining whether the filing of a "cross-claim" before the Tribunal constituted a valid joinder of the claimant as a party, and whether the Tribunal's failure to make a formal order joining the claimant to the cross-claim, or to serve the claimant with its own orders, amounted to a failure to comply with mandatory statutory requirements. Furthermore, the Court considered whether an adjournment should have been granted to allow a party a proper opportunity to present their case.
The Court reasoned that the legislation required strict compliance with its terms, particularly concerning procedural matters. It found that the Tribunal had failed to follow the mandatory procedures for joining a party to proceedings, and that the claimant had not been afforded a proper opportunity to present their case. Consequently, the Court concluded that the decision of the Tribunal and the subsequent orders of the Master were vitiated by jurisdictional error and a failure to observe the rules of natural justice.
The Court of Appeal allowed the appeal, set aside the judgment and orders of the Master, and in lieu thereof, set aside the decision of the Tribunal member and remitted the proceedings back to the Consumer Trader and Tenancy Tribunal to be determined according to law. The Court also made orders regarding costs and granted leave to amend pleadings and extend time for filing.
Orders
Orders of the court
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.