Kadric v Rattan
[2002] NSWSC 1136
•28 November 2002
CITATION: Kadric & Anor v Rattan & Anor [2002] NSWSC 1136 CURRENT JURISDICTION: Common Law Division
Administrative Law ListFILE NUMBER(S): SC 30054 of 2002 HEARING DATE(S): 25 November 2002 JUDGMENT DATE: 28 November 2002 PARTIES :
Meenuna Kadric & Seid Kadric T/as Kadric Building Services (Plaintiff)
v
Prabhawati Rattan (First Defendant)
Consumer, Trader and Tenancy Tribunal (formerly known as the Fair Trading Tribunal of New South Wales) (Second Defendant)
JUDGMENT OF: Master Malpass
LOWER COURT
JURISDICTION :Fair Trading Tribunal of New South Wales LOWER COURT
FILE NUMBER(S) :BU2000/11450 LOWER COURT
JUDICIAL OFFICER :J Farey, Tribunal Member
COUNSEL : Mr Alex Gelbart (Plaintiff)
Mr C W Robinson (First Defendant)
N/A (Second Defendant)SOLICITORS: Leslie Abboud (plaintiff)
Gerard O'Donnell (First Defendant)
I V Knight - Crown Solicitor - Submitting Appearance (Second Defendant)
CATCHWORDS: Extension of time to bring appeal - denial of natural justice - entitlement to legal representation before Tribunal - alleged refusal of application for legal representation - evidentiary deficiencies. LEGISLATION CITED: Fair Trading Tribunal Act 1998, s 33. CASES CITED: N/A DECISION: See Paragraph 28 - 29.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LISTMaster Malpass
Thursday 28 November 2002
JUDGMENT30054 of 2002 Meenuna Kadric & Seid Kadric T/as Kadric Building Services v Prabhawati Rattan & Anor
1 MASTER: The plaintiffs carry on business as builders. A contract was made with the first defendant for the performance of building works on her home. Disputes arose and the first defendant brought an application in the Fair Trading Tribunal (the Tribunal) seeking relief in respect of defective work.
2 A hearing took place. The first defendant was the successful party. She obtained inter alia an order against the plaintiffs for the payment of the sum of $19,135.
3 The decision of the Tribunal was made on 15 January 2002. Written reasons for that decision have been given by the Tribunal (Exhibit A).
4 Subsequently, both the plaintiffs and the first defendant sought re-hearing. Indeed, the plaintiffs made two applications. All applications were unsuccessful.
5 On 5 July 2002, the plaintiffs filed the Summons which commenced these proceedings. It seeks to propound an appeal against the decision of the Tribunal. It is presently incompetent, being brought out of time. Accordingly, application is also made for an extension of time in which to bring the appeal.
6 The avenue of appeal open to the plaintiffs is a narrow one. It is restricted to error of law.
7 It is convenient to first look at the question of whether or not the plaintiff should be granted an extension of time. The court has a discretionary power to grant such relief. The discretion is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served. The onus rests with the plaintiff.
8 In cases such as the present, the relevant circumstances usually include the length of the delay, the explanation offered for the delay and the merits of the appeal.
9 In this case, the delay is considerable (in the order of 6 months) and little is offered to explain it. In the circumstances of this case, I am not satisfied that the delay has been sufficiently explained.
10 I now turn to the merits of the appeal. The plaintiffs complain of a denial of natural justice. The plaintiffs contend that during the course of the hearing, they made an unsuccessful application for legal representation.
11 Entitlement to legal representation is governed by the provisions of s 33 of the Fair Trading Tribunal Act 1998 (the Act) and the Regulations made thereunder. In the circumstances of the present case, under the relevant provisions the plaintiffs were entitled to have legal representation.
12 One of the problems confronting the plaintiffs in this case, is the unreadiness of the matter for hearing by reason of evidentiary deficiencies. This situation persisted despite the matter being listed for directions on a number of occasions over a considerable period. A hearing date was procured on the basis of assurances as to its readiness for hearing. A belated application for adjournment was refused.
13 I have already mentioned the evidentiary deficiencies concerning the matter of explanation for delay. In addition, although the proceedings before the Tribunal were recorded, no transcript has been placed before the court. In this case, the transcript was crucial. It was important for the plaintiffs’ case that this Court had before it all of the relevant material and that what took place before the Tribunal was identified with precision. Without it, the plaintiffs’ case floundered because of evidentiary deficiencies.
14 In an endeavour to rectify the problem created by the lack of transcript the plaintiffs sought to tender both an affidavit sworn by the first defendant and a responsive affidavit sworn by one of the plaintiffs. This created various difficulties for the plaintiffs. Firstly, the court did not have the benefit of a full and accurate record of what happened before the Tribunal. Secondly, it left the court with competing versions of what is said to have taken place.
15 The application appears to have been before the Tribunal on at least three occasions. It was before the Tribunal on 2 March 2001. It subsequently came before the Tribunal on 16 May 2001. It was again before the Tribunal on 20 July 2001. On none of these occasions was the plaintiff legally represented. On each of these occasions, Mr Kadric appeared on behalf of the plaintiffs. He was accompanied by an interpreter. There was also a young male person. There appears to be dispute as to his role. For completeness, I should add that the court was informed that the plaintiffs were not legally represented in the re-hearing applications.
16 According to Mr Kadric, prior to 12 March 2001, he was aware that he was entitled to have legal representation.
17 On 12 March 2001, he sent a letter to the Tribunal seeking inter alia permission to have a solicitor represent him at the next hearing. He further says that the Tribunal did not respond to that letter.
18 When the hearing resumed in May 2001, Mr Kadric did not attend at the hearing with a retained legal representative. Accordingly, it would be necessary for the proceedings to be further adjourned if he was to have legal representation.
19 Whilst doubt may be entertained as to whether or not he did intend to retain a legal representative, I shall proceed on the assumption that he did so.
20 Whilst it is common ground that something was said by Mr Kadric to the Tribunal concerning the matter of legal representation, there was dispute as to what took place. Thus the court was left with conflicting versions and an unnecessary problem has been created by reason of the lack of transcript.
21 The version of the first defendant is as follows:-
- “17. As I further recall, Mr Seid Kadric said to the Tribunal member words of or to the effect: ‘Can I bring my solicitor on the next hearing?’ When I was asked about being represented, I said words of or to the effect: ‘I can’t afford to pay a solicitor’s fee – I can represent myself.’ The matter then proceeded.”
22 The version of Mr Kadric is as follows:-
- “8. In respect of paragraph 17 of the First defendant’s affidavit, I agree with the contents therein except the words attributed to me. I said words to the following effect during the hearing of the 16 May 2001 to the member, when the issues became difficult for me to understand. ‘Can I have a solicitor to represent me’, the tribunal member replied, ‘Don’t even think about it, and get on with hearing’. I took that to mean I could not obtain legal representation at the hearing and I was denied any adjournment to get legal representation.I conclude that since the First defendant did not want legal representation as she could not afford it, the member did not want me to be legally represented and prejudiced my right to a fair hearing.”
23 Mr Kadric was not at court during the hearing of this appeal. A requirement that he make himself available for cross-examination was waived when it was ascertained that this would bring about further delay. The first defendant was present in court but was not cross-examined.
24 This placed the court in a very difficult situation. It was left to resolve the conflict without the benefit of observing either deponent in the witness box.
25 In the circumstances, I am not satisfied that I should prefer the version offered by Mr Kadric to that presented by the first defendant. In any event, I am not satisfied that his version should be read as an application to be allowed legal representation and as a refusal of that application. Further, it should be observed that he did not need to make an application, he was entitled as a matter of law to be legally represented. He chose to attend the further hearing without a retained legal representative. He brought about a situation where an adjournment would be required. If what he did can be seen as the making of an adjournment application, a refusal of such an application would have been reasonably open to the Tribunal.
26 For completeness, I should mention certain other matters. The plaintiffs are builders and the subject of the dispute was defective work under a building contract. The amount in dispute was not a large one. The first defendant is a retired lady (about 66 years of age). She was not legally represented.
27 In addition to these matters, there is yet a further hurdle confronting the plaintiffs. When regard is had to the material and the submissions made by counsel, I am not satisfied that a different result would have been reached in the proceedings had the plaintiffs been legally represented.
28 In my view, the onus borne by the plaintiffs has not been discharged. Apart from the insufficiently explained delay, the plaintiffs have failed to demonstrate any arguable error of law entitling them to relief.
29 Accordingly, the application for extension of time is refused and the Summons is dismissed. The plaintiffs are to pay the costs of the Summons. The Exhibit may be returned.
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