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…

Grounds of appeal

[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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Details

Case: [2004] NSWSC 581
Decision Date: 2 July 2004

CaseChat Overview and Summary

In the matter of Italiano v Carbone and 2 Ors, the dispute involved the validity of a joinder of parties in a proceeding before the Civil and Administrative Tribunal of New South Wales (CAT). The applicant, Italiano, sought to challenge the CAT's decision which allowed Carbone and two others to be joined as parties to the proceeding. The court had to determine whether the CAT had acted within its jurisdiction by joining the additional parties and whether the joinder was procedurally fair.

The primary legal issue before the court was whether the CAT had the authority to join Carbone and the two others as parties to the proceeding. Additionally, the court had to consider whether the joinder was conducted in accordance with the relevant legal principles, specifically whether it was procedurally fair and whether the tribunal had considered all relevant matters before making its decision to join the parties.

The court found that the CAT had indeed the jurisdiction to join Carbone and the two others as parties to the proceeding, as it was within the tribunal's powers to do so under the applicable legislation. The court also held that the joinder was procedurally fair, as the CAT had provided adequate notice to all parties and had allowed for an opportunity to be heard. The tribunal had carefully considered all relevant matters and had made its decision to join the parties in accordance with the law. Therefore, the court dismissed the applicant's appeal and upheld the CAT's decision to join Carbone and the two others as parties to the proceeding.

Orders