Italiano v Carbone and 2 Ors

[2004] NSWSC 581

CITATION:

Italiano v Carbone & 2 Ors [2004] NSWSC 581

HEARING DATE(S):

25 June 2004

JUDGMENT DATE:

2 July 2004

JURISDICTION:

Common Law - Administrative Law List

JUDGMENT OF:

Master Harrison

DECISION:

(1) Leave to appeal is refused; (2) The appeal is dismissed; (3) The orders of Tribunal Member Durie dated 26 June 2003 are affirmed; (4) The plaintiff is to pay the defendants' costs as agreed or assessed.

CATCHWORDS:

Appeal decision of CTTT - whether a party was properly joined to proceedings

LEGISLATION CITED:

Consumer, Trader and Tenancy Tribunal Act - s 65(3)(b)
Consumer, Trader and Tenancy Tribunal Regulation 2002 (NSW)
Home Building Act 1989 (NSW) - ss7 & 92
Judicial Review of Administrtive Act, 2nd ed

CASES CITED:

CDJ v VAJ (No 1) (1998) 197 CLR 172
Chapmans Ltd v Yandell (t/as Yandells) [1999] NSWCA 361
Coulter v Regina (1988) 166 CLR 350
Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 951
Kioa v West (1985) 159 CLR 550

PARTIES :

Giovannai Italiano
(Plaintiff)

Domenic Carbone
(First Defendant)

Consumer Trader and Tenancy Tribunal
(Second Defendant)

Italiano's Painting and Decorating Pty Limited
(Third Defendant)

FILE NUMBER(S):

SC 30108/2003

COUNSEL:

Mr P Barham
(Plaintiff)

Mr R W Tregenza
(First Defendant)

SOLICITORS:

Stoikovich Macri
(Plaintiff)

Carbone & Associates
(First Plaintiff)

Submitting Appearance
(Second Defendant)

LOWER COURTJURISDICTION:	CTTT
LOWER COURT FILE NUMBER(S):	HB 03/14211
LOWER COURT JUDICIAL OFFICER :	Tribunal Member Durie

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 2 JULY 2004

30108/2003 - GIOVANNAI ITALIANO v
DOMENIC CARBONE & 2 ORS
JUDGMENT (Appeal decision of CTTT
- whether a party was properly joined
to proceedings)

1 MASTER: By summons filed 10 December 2003 the plaintiff seeks: firstly, an order that the time for the commencement of this appeal be extended; secondly, an order that leave be given to the plaintiff to commence these proceedings; thirdly, an order that the decision of Tribunal Member Durie and the Consumer Trader and Tenancy Tribunal (CTTT) (formerly the Fair Trading Tribunal) dated 26 June 2003 be set aside; and fourthly, an order that the matter be remitted for hearing to the CTTT. The plaintiff relied on his affidavits sworn 22 December 2003 and 9 March 2004 and the two affidavits of Boban Miljevic sworn 9 March 2004 and 5 April 2004. The first defendant relied on his affidavit sworn 19 April 2004.

2 The plaintiff is Giovanni Italiano (the plaintiff in the proceedings before the Tribunal). The first defendant is Domenic Carbone (the defendant in the proceedings before the Tribunal). The second defendant is the CTTT who filed a submitting appearance. The third defendant is Italiano’s Painting and Decorating Pty Limited (which was also a plaintiff in the proceedings before the Tribunal).

3 Section 65(3)(b) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the Act) provides that relief can be granted by way of a judgment or order in the nature of prohibition, mandamus, certiorari, and a declaratory judgment or an injunction if in relation to the hearing or declaration of the matter, a party had been denied procedural fairness.

4 Section 67 of the Act allows for an appeal to be made to this court on a question of law. An appeal may only be made with leave of the court. A reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. The onus lies on the plaintiff to demonstrate that there has been an error of law. Section 67(3) of the Act provides that after deciding the question of the subject of an appeal the court may, unless it affirms the decision of the Tribunal on the question that should have been made by the Tribunal, remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal.

Background

5 The matter before the Tribunal was a claim by the applicant, Italiano’s Painting and Decorating Pty Ltd, which allegedly carried out the painting of a new house being constructed for the first defendant at Horsley Park. The claim was one of quantum meruit rather than in contract because of admitted failure by the tradesperson to comply with sections 7 and 92 of the Home Building Act 1989 (NSW). The defendant filed a document in the CTTT whereby he sought orders against the applicant for repudiation of the contract and the cost of carrying out rectification.

6 On 21 February 2003 the matter came on for hearing in the CTTT, Home Building Division. Mr Italiano and Mr Luna appeared. There was no appearance by the respondent. On 7 March 2003 the Tribunal Member made an order “that Domenic Carbone is to pay Italiano’s Painting and Decorating Pty Ltd the sum of $23,936.09 on or before 28 February 2003.” At paragraph 6 of their reasons for decision, the Tribunal Member stated:

“The respondent has not prosecuted any cross-claim which, if successful, may be set off against the applicant’s entitlement. In this regard, I also find that noel of the alleged actions of the applicant could have prevented the preparation and prosecution of any alleged cross claim by the respondent.”

7 On 28 February 2003 the first defendant applied for a rehearing on the basis that he did not receive the Notice of Hearing. The application for rehearing was granted. On 22 April 2003 directions were made and the matter was fixed for hearing. On 23 May 2003 the defendant served an amended answer and cross claim on the plaintiff and filed it with the CTTT. In the amended answer it sought that Giovanni Italiano be joined as an additional applicant as the agreement to carry out painting work was directly between Giovanni Italiano and the respondent. The same order was sought in the amended cross claim. The rehearing took place before the CTTT on 29 May 2003. Once again Mr Luna appeared as advocate and the respondent appeared in person.

8 The Tribunal Member gave written reasons for his decision and made orders that:

“1. The claim by Italiano’s Painting and Decorating Pty Limited be dismissed; and
2. Giovanni Italiano is to pay Domenic Carbone $74,500.00 on or before 23 July 2003.”

9 The plaintiff raised a preliminary argument that he is not a party to the proceedings and the provisions to extend time to appeal do not apply. The decision appealed against is the order that Giovanni Italiano pay to the respondent the sum of $74,500.00 on or before 23 July 2003. As the plaintiff is bound by that order it is necessary for him to apply for an extension of time.

Whether an extension of time to appeal should be granted

10 Proceedings were required to be commenced within 28 days of the material date. The material date is 24 June 2003 – see Pt 51A r 2(b) of the Supreme Court Rules 1970 (NSW). The plaintiff was served with the order on 30 June 2003. The time to commence these proceedings expired on 28 July 2003. The proceedings were commenced on 10 December 2003 which is approximately 4½ months out of time.

11 In Chapmans Ltd v Yandell (t/as Yandells) [1999] NSWCA 361, Fitzgerald JA (with whom Mason P and Davies AJA agreed) stated that it is important to keep in mind that the purpose of a requirement of leave to appeal is that it is intended to act as a filter to ensure that unsuitable appellant proceedings are not able to be brought with the demands which that places upon the resources of the court and the burden which it places upon other parties and the delays which it causes to other litigants. - see Coulter v Regina (1988) 166 CLR 350 at 359.

12 Fitzgerald JA also stated that if leave to appeal should be granted where there is some other matter which in justice required that leave to appeal be granted to allow that matter to be re-litigated, the party seeking leave to appeal obviously bears the burden of establishing that justice does require that leave to appeal be granted. Further, the Master when considering whether to grant leave to appeal obviously has a very wide discretion - see CDJ v VAJ (No.1) (1998) 197 CLR 172 (per McHugh, Gummow and Callinan JJ).

13 As previously stated, the plaintiff acknowledged that he was aware of the Tribunal’s decision on 30 June 2003. The plaintiff’s solicitor deposed that in the first week of July 2003 the plaintiff attended their office with the copy of the Notice of Order dated 26 June 2003 from the CTTT. The plaintiff was seeking advice from their firm as to whether or not there were any grounds for appealing the order of the CTTT. The plaintiff was advised that it was not an area of the firm’s specialty and that he should engage an expert in the field from elsewhere.

14 On about 16 July 2003 the plaintiff again attended the solicitor’s office and instructed that he was too busy to locate another firm of solicitors who he trusted and instructed the firm to act on his behalf. On 18 July 2003 the solicitor sent a retainer and cost agreement to the plaintiff seeking execution by way of confirming their instructions. The plaintiff deposed that he was not aware of the significance of the orders until service of a bankruptcy notice upon him on 5 September 2003. This is difficult to accept because if that were right one must query why the plaintiff consulted solicitors in the first week of July. He does not explain that he was, at that stage, seeking advice in relation to company’s position.

15 After being served with the bankruptcy notice, the plaintiff briefed his solicitors Stoikovich Macri of Liverpool and focused on the notice set aside through proceedings commenced in the Federal Magistrates Court of Australia. The plaintiff succeeded in his application and the Federal Magistrates Court of Australia made an order on 28 October 2003 setting the bankruptcy notice aside.

16 On 15 September 2003, the plaintiff's solicitors, Stoikovich Macri, had briefed counsel, to advise on the bankruptcy notice and the substantive appeal against the decision of the Tribunal. On 23 November 2003, the plaintiff's solicitors briefed Mr Peter Barham. On 10 December 2003, the summons was filed. It is my view that the plaintiff did not act diligently in prosecuting this appeal. In effect, he did nothing until 5 September 2003, which was two months after the decision, and then even though the time to appeal had elapsed he chose to put this appeal in abeyance until after his bankruptcy problem was dealt with. Taking into account the above matters it is my view that the application for extension of time to lodge this appeal should be refused.

17 If I am wrong I shall consider the appeal. At this stage it is convenient to set out some of the provisions of the Act. The function of the Tribunal is to adjudicate disputes between consumers and commercial disputes between landlords and tenants. The Tribunal is not constrained by the rigour of the courtroom. Its objects are to ensure that the Tribunal is accessible, its proceedings are efficient and effective, its decisions are fair and to enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner. The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 27(3) of the Act).

18 Evidence must be given on oath or statutory declaration (s 39(1) of the Act) but the Tribunal is not bound by the rules or practice of evidence and the Tribunal may inform itself on any matter in such a manner, as it considers appropriate (s 28(2) of the Act). The Tribunal must conform to the rules of natural justice, but broadly speaking, has control of and responsibility for its own procedures (ss 28(1) and (2) of the Act). Its business is conducted in public (s 33 of the Act). Section 35 of the Act provides that the Tribunal must ensure that each party in any proceedings is given a reasonable opportunity to call or give evidence and otherwise present the party’s case (whether at a hearing or otherwise); and to make submissions in relation to the issues in the proceedings. Normally a party to the proceedings has carriage of his or her own case and is not entitled to be legally represented (s 36(1) of the Act). The Tribunal has the power to award costs (s 53 of the Act), but usually each party bears its own costs. Pursuant to s 54 of the Act the Tribunal is obliged to use its best endeavours to bring the parties to a settlement before making an order. The Tribunal has a power to correct its decision (s 50 of the Act) and the registrar can issue a certificate, which operates as a judgment (s 51 of the Act).

Grounds of appeal

19 The plaintiff appeals from the whole of the Member’s decision on the grounds that: firstly, the learned Tribunal member erred in ordering the applicant in the proceedings below (plaintiff in these proceedings) to pay any money to the respondent/cross-claimant in the proceedings below in circumstances where the plaintiff was not, or should not have been, a party to the proceedings; secondly, the learned Tribunal member erred in finding that the plaintiff could not recover on the claim, when the plaintiff had never sought to recover on the claim; thirdly, the learned Tribunal member erred in finding that because there was no written contract he was unable to find that the agreement was with the company rather than the plaintiff personally in circumstances where there was evidence from which it might be inferred that there was a contract with the third defendant; and fourthly, the learned Tribunal member erred in finding the plaintiff personally liable for the breach of warranty which he found in circumstances where there was a contract with the third defendant, not the plaintiff and the plaintiff was not party to the proceedings.

20 The plaintiff submitted that the plaintiff and third defendant are legally separate and one is not to be treated as the alter ego of the other and that generally speaking, a court or tribunal may only make an order against a party to an action. Prior to the hearing Mr Italiano received a copy of the answer and amended cross claim seeking to have him added as an applicant. He chose not to read them but gave them to his advocate Mr Luna.

Denial of natural justice and procedural fairness

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

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

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

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

23 In relation to procedural fairness, Mason J stated in Kioa at 584-585 that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures, which are appropriate and adapted to the circumstances of the particular case.

24 In Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 951 Grove J stated at para 25:

“There is ample authority that procedural fairness is denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequate opportunity to prepare or present a case: Sullivan v Department of Transport (1978) 20 ALR 323; Opitz v Repatriation Commission (1991) 29 FCR 50; Humphrey v Wills (1989) VR 439.”

25 Whether there is a denial of procedural fairness depends on the circumstances in each case.

Joinder of parties

26 Regulation 28(1) of the Consumer, Trader and Tenancy Tribunal Regulation 2002 (NSW) 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 but the personal has not been served with notice of the application, the Tribunal may make an order directing that the personal 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.”

27 Section 26(1) of the Act is not applicable as it relates to joint liability, but it permits that during proceedings the Tribunal Member may by oral direction join a person as a party in proceedings. Otherwise the Tribunal can join a person who has a sufficient interest in the proceedings and as Mr Italiano was present at the hearing the Member knew that Mr Italiano was aware of the proceedings. Hence the Tribunal Member could dispense with the requirement that Mr Italiano be served with the notice of proceedings.

28 At the outset of the hearing before the CTTT the following exchange took place:

“TRIBUNAL MEMBER: You’re Mr Italiano?
MR ITALIANO: Correct. (t 1)
TRIBUNAL MEMBER: You’re appearing for Mr Italiano?
MR LUNA: Appearing, yes. I’ve been (indistinct) with the case all along. (t 2)
TRIBUNAL MEMBER: This is a complete rehearing.
MR LUNA: Right. Well, I’d have to apply for a rehearing – request a rehearing to make an application.
TRIBUNAL MEMBER: It’s now. This is the rehearing of it.
MR LUNA: If it’s a rehearing of the whole case not just section 94A---
TRIBUNAL MEMBER: It’s a rehearing of the whole case including the matters under section 94. Mr. Italiano or his company was not licensed.
MR LUNA: No, we’re not arguing that.
TRIBUNAL MEMBER: He was certainly not insured at the time.
MR LUNA: No, we were licensed.” (t 4)

29 The Tribunal Member asked Mr Luna if he was appearing for Mr Italiano and was told by Mr Luna that he was. The Tribunal Member than asked for the basis upon which the applicant’s claim for quantum meruit where the work was uninsured building work was founded. Mr Luna replied that he was not aware that they were going to discuss the matter. When he realised that it was a rehearing of the whole case, he sought an adjournment which was refused on the basis that the applicant did not comply with the orders made on 22 April 2003 by which he had to provide a copy of the amended claim based on quantum meruit by 2 May 2003 and to provide further documents by 4 May 2003.

30 The evidence of the witnesses, namely Mr Carbone and Mr Italiano, was not entirely accepted by the Tribunal Member. The Tribunal did not find Mr Italiano to be a witness on whose evidence he could confidently rely. In some matters his evidence was patently untrue and bore all the hallmarks of invention to suit the circumstance (J 4). There were also problems with the evidence of Mr Carbone and in particular whether Mr Carbone paid Mr Italiano $7,000 or $8,000 in cash and did not seek a receipt (J 5).

31 At page 27 of the transcript:

MR CARBONE: Q: Do you have a copy of the answer
or the amended answer which has been filed by me in these proceedings?
A: Which one was that?
Q: Do you have those document in front of you?
A: Yes. (t 27)

At page 91 of the transcript:

MR CARBONE: Q: Ta, Just excuse me for a moment.
Now, Mr Italiano, you would agree with me that all the discussions that we had at the beginning in terms of this contract related to discussions had between you and me directly. Is that correct?
A: Contract?
Q: Yes.
A: What contract?
Q: Well, the contract where you say you tendered for $33,000 lump sum.
A: Yes.
Q: The discussions were between you and me.
A: That’s correct.
Q: Not at any stage did you make any mention of the involvement of your company.
A: Myself and my company, I talked myself and my company, yes.
Q: But never at any stage did you produce anything in writing from your company by way of a quote. All the discussions were verbal between yourself and myself.
A: Correct.
Q: And you have never mentioned the involvement of your company.
A: Yes. You never asked for it though, I never – I never – never done it.
Q: And you continued on with employing his services, is that correct.
A: Yes we did because we had given him $8,000.”

32 Mr Italiano was given notice prior to the hearing that a claim was made against him in his personal capacity. In cross-examination he was keen to volunteer that he did not understand that a claim was being made. However he admitted that he chose not to read those documents. Mr Italiano was personally present at the hearing before the CTTT. Mr Italiano was represented by Mr Luna, a building advocate, and was personally present before the Tribunal when Mr Luna informed the tribunal Member that he appeared for him.

33 The Tribunal Member was entitled to accept and act on this information. It was up to Mr Luna to explain to Mr Italiano that he was now a party in the proceedings particularly when he had been given the documents by Mr Italiano, by which Mr Carbone sought to join Mr Italiano in his personal capacity. It is my view that during the hearing the Tribunal Member should have made a formal order joining Giovanni Italiano to the proceedings prior to giving judgment. However, I do not propose to remit this matter to the Tribunal because both parties were examined and cross-examined upon the issue of the identity of the true plaintiff. In cross-examination Mr Italiano admitted that he never mentioned the involvement of his company to Mr Carbone. Mr Luna told the Tribunal Member that he represented Mr Italiano. No utility would be served in the matter being reheard again. True it is, that the plaintiff, if the matter was remitted, may be able to properly prepare his case on damages - but he was on notice prior to the rehearing that he needed to serve documentation and chose not to comply with court directions. Thus it was his own fault that he appeared at the rehearing unprepared. In any event, the damages component of the claim was not put in issue in this appeal.

34 In relation to ground 3, namely that the Tribunal Member erred in finding that there was a contract with Mr Italiano and Mr Carbone when Mr Italiano admitted that he did not mention to Mr Carbone the involvement of his company.

35 The Tribunal Member at para 24 stated:

“There was nothing in Mr Italiano’s evidence to suggest that he disclosed that it was the company which would be carrying out the work. Because of the failure to enter into a written contract, I am quite unable to find that the agreement was with the company rather than with Mr Italiano personally. He is therefore liable personally for the breach of warranty which I have found.”

36 As previously stated, the credit of both witnesses was in issue. It was open on the evidence for the Tribunal Member to make this finding.

37 Leave to appeal has been refused refused. The appeal is dismissed. The orders of Tribunal Member Durie dated 26 June 2003 are affirmed.

38 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendants’ costs as agreed or assessed.

Orders

39 The Court orders:

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

(3) The orders of Tribunal Member Durie dated 26 June 2003 are affirmed.

(4) The plaintiff is to pay the defendants’ costs as agreed or assessed.
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Last Modified: 07/05/2004