Kamel v The Austral Brick Co P/L

[2001] NSWSC 133

CITATION:	Kamel v The Austral Brick Co P/L [2001] NSWSC 133
CURRENT JURISDICTION:	Administrative Law
FILE NUMBER(S):	SC 30076/2000
HEARING DATE(S):	28 February 2001
JUDGMENT DATE:	15 March 2001
PARTIES :	Adel Kamel (Plaintiff) The Australia Brick Company Pty Limited (Defendant)
JUDGMENT OF:	Master Harrison

COUNSEL :	Mr Simon Ioannou (Plaintiff) Mr E Cox (Defendant)
SOLICITORS:	Bateman Battersby (Defendant)
CATCHWORDS:	Quash order of Fair Trading Tribunal - Denial of natural justice - interpreter
LEGISLATION CITED:	Fair Trading Tribunal Act 1998 Judicial Review of Administrative Act, 2nd ed at 180-181
CASES CITED:	Kioa v West (1985) 159 CLR 550 Bayram & Ors v Chris Benton (1994) 117 FLR 414 Hutley v Meigan & Ors (1997) FCR 442 Sullivan v Department of Transport (1978) 20 ALR 323 Stead v State Government Insurance Commission (1986) 161 CLR 141 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 Gradidge v Grace Bros Pty Ltd (1998) 93 FLR 414 Ex parte Wilson; Re Cuff (No 2) 1940 SR (NSW) 559 R v Commonwealth Industrial Court; Ex parte Cocks (1965) 121 CLR 313 El Ali v Government Insurance Office of New South Wales & Anor (1988) 15 NSWLR 303
DECISION:	(1) The amended summons filed 30 November 2000 is dismissed; (2) The plaintiff is to pay the defendant's costs as agreed or assessed.

20

THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

MASTER HARRISON

THURSDAY, 15 MARCH 2001

30076/2000 - ADEL KAMEL v THE AUSTRAL
BRICK COMPANY PTY LIMITED
ACN 000 005 550

JUDGMENT (Quash order of Fair Trading Tribunal;

denial of natural justice - interpreter)

1 MASTER: By amended summons the plaintiff seeks firstly, a declaration pursuant to s 60(3)(b) of the Fair Trading Tribunal Act 1998, that in relation to the hearing or determination of matter CO1999/5818 before the Fair Trading Tribunal of New South Wales on 27 July 2000, the plaintiff had been denied natural justice. Secondly, an order in the nature of certiorari setting aside the decision of the Fair Trading Tribunal and thirdly, an order in the nature of mandamus directing the Fair Trading Tribunal to grant a rehearing to the plaintiff. The plaintiff relied on his affidavits sworn 24 November 2000 and 12 December 2000. These affidavits were formally translated by an interpreter into Arabic on 2 December 2001. The defendant relied on the affidavits of Michael William Battersby sworn 30 October 2000 and Martin Rolf Driene sworn 29 November 2000.

2   At the outset it should be mentioned that when this matter was listed for hearing and called at 10.05 am the plaintiff’s interpreter was not present. The court was adjourned until 10.35 am when the plaintiff’s interpreter was in attendance.

3   The plaintiff is 38 years of age who arrived here 12 years ago from Egypt. His native language is Arabic. The plaintiff in his affidavit sworn 24 November 2000 states that he does not speak or understand English well and estimates to have an understanding of English of about 55-60%. The plaintiff has tertiary qualifications. He has a Bachelor of Commerce from the University of Helwan in Cairo. The plaintiff submitted that being deprived of the assistance of an interpreter meant that he could not seek a short adjournment to obtain details of the qualifications of his expert and this in turn led to the Tribunal member’s preference of the defendant’s evidence. This according to the plaintiff constituted a denial of natural justice. The main issue in this case is whether or not the Tribunal member should have granted an adjournment to allow the plaintiff to obtain the services of an interpreter although the plaintiff did not request such an adjournment.

4   The facts are as follows. In arriving at these facts, I observed the plaintiff while giving evidence and being cross examined with the assistance of an interpreter, but I could not make any real assessment of the plaintiff’s demeanour or ability to speak English. The only useful observation I made was that the plaintiff did not confine himself to answering the questions that he was asked even when he was requested to do so by the court.

(1) On 8 October 1999 the plaintiff lodged a consumer claim in the Fair Trading Tribunal seeking an order that The Austral Brick Co Pty Limited (the defendant) replace bricks that it had supplied to the plaintiff. He sought compensation of $10,000 to $15,000.

(2) On 24 November 1999 the initial hearing before the Tribunal was adjourned to permit the plaintiff to obtain further evidence. An interpreter was present.

(3) On 14 December 1999 the complaint was heard by the Tribunal member (the initial hearing). The Tribunal member ordered that plaintiff’s claim be dismissed because he was not satisfied that the bricks supplied were not as per sample or that they were not of merchantable quality. At this hearing the plaintiff presented photographs of the display wall, his house and three other properties constructed with that particular type of brick, statutory declarations and evidence from a building consultant Mr Gillis.

It is disputed as to whether the plaintiff had an interpreter present for this hearing. The plaintiff in his affidavit stated that an interpreter was present at court on this occasion and was of assistance to him. In cross examination the plaintiff stated that he was 95% sure that an interpreter was present.

Mr Martin Driene is employed by the defendant as the New South Wales sales manager. He was present at the Tribunal that day and at most of the hearings before the Tribunal. His evidence at the second hearing on 14 December 1999 was that an interpreter was not present. This accords with the Tribunal member’s notes of 14 December 1999 where he wrote “INTERPRETER DID NOT ARRIVE!!” Mr Driene was present when Tribunal member said to the plaintiff words to the effect of “Mr Kamel to you wish the hearing to be adjourned?”. Mr Kamel said “No we will go ahead today”. I prefer the evidence of Mr Driene to that of the plaintiff. The plaintiff chose to proceed with the hearing without the assistance of an interpreter. At no time has the plaintiff ever complained in his application for rehearing or otherwise that he was disadvantaged at this hearing due to the lack of an interpreter.


(4) On 30 December 1999 the plaintiff lodged an application for a rehearing of the matter.

(5) On 23 February 2000 the Tribunal granted the application for rehearing. The plaintiff sought the rehearing on the grounds that the decision was unfair because the Tribunal member was biased, ignored the report of his expert, preferred the evidence of the respondent’s expert and ignored the physical evidence of the bricks he brought to the hearing. After the hearing was completed the plaintiff obtained a further expert report from Max Granger and sought the opportunity to place this additional evidence before the Tribunal. The member that conducted the review found no evidence to support the claim that the Tribunal member was biased nor was it found that the decision was against the weight of the evidence to the extent that the decision should be overturned.

However, a rehearing was granted on the basis that the plaintiff did not have sufficient notice of the contents of the respondent’s experts report so as to be able to meet it. The order of the Tribunal dated 14 December 1999 was set aside. The Tribunal ordered that the matter be heard by a differently constituted Tribunal.


(6) On 4 April 2000 the rehearing commenced but was adjourned to 25 May 2000. An interpreter was present.

(7) On 16 May 2000 the defendant applied for an adjournment of the hearing on 25 May 2000.

(8) On 22 May 2000 the Tribunal granted an adjournment of the hearing.

(9) On 13 June 2000 the plaintiff was notified of a further hearing on 28 June 2000.

(10) On 28 June 2000 the rehearing was adjourned because the referee advised the plaintiff that he would need to have Mr Carroll’s statement sworn. An interpreter was present.

(11) On 7 July 2000 a notice of a further hearing date of 27 July 2000 was provided to the plaintiff in writing by the Tribunal. The notice (Ex 5 ) issued by the Tribunal relevantly stated:

“A POSTPONEMENT OF A HEARING WILL NOT BE GRANTED WITHOUT THE CONSENT OF THE OTHER PARTY(IES) UNLESS THERE ARE EXCEPTIONAL CIRCUMSTANCES. YOUR ATTENTION IS DRAWN TO SECTION 48 OF THE FAIR TRADING TRIBUNAL ACT 1998 WHICH PROVIDES THAT COSTS MAY BE AWARDED.”
The plaintiff understood that if wanted an adjournment he could ask for one. He had requested and had been granted adjournments in the past by the Tribunal.

(12) On 27 July 2000 the hearing was conducted at the site. It is common ground that the interpreter did not attend. Mr Driene was present at this hearing. He gave evidence that the Tribunal member said to the plaintiff “Mr Kamel do you want to wait for your interpreter?” and the plaintiff replied “Let’s go ahead”. The plaintiff’s version is that the referee said to him after they had been waiting 5 minutes for the interpreter to arrive “I think that we have waited long enough. We have been talking about this case long enough and we need to finish it”. He then asked the plaintiff if he could proceed and the plaintiff indicated that they should do so.

In cross examination the plaintiff conceded that he agreed to proceed because he thought if he did not it might affect his case and because in Egyptian culture it is customary to agree with persons in authority. He agreed that he made a conscious decision to proceed. The plaintiff claims that at the hearing they waited for about five minutes before the Tribunal member asked if he would like to proceed without the interpreter. The plaintiff said that he indicated that he wished to wait and after a further five minutes was asked again whether they could proceed (t 15.49). During cross examination it was put to the plaintiff that in fact the decision to proceed was made after the first five minute break but no clear answer was obtained (t 16.4).

(13) At the hearing the plaintiff handed up written submissions dated 20 July 2000 that were prepared with the assistance of his brother in-law (Ex 3). The Tribunal member gave brief reasons for his decision. The part of the decision that the plaintiff submitted that caused him to be denied natural justice is where the Tribunal member stated:

“… In my view, and each of the experts agreed the property has an even distribution of the various patterned bricks across the wall. I do not accept the evidence presented with respect to the loss of value of the property. The evidence was based on information supplied to Mr Carroll by the Applicant with respect to the difference between the first batch and the display and also refers to the quality and colouring of the bricks. There is no evidence to show that Mr Carroll is qualified to comment on these issues.”
It should be noted that Mr Cantali was an expert engaged by the Clay Brick and Paver Institute of Australia (see the written reasons of the Tribunal member of 14 December 1999) and that the Tribunal member had attended a view at the plaintiff’s home to inspect the brickwork on which he could base his decision.
The Tribunal ordered that:
"In full and final satisfaction of all issues in dispute in matter Co 2000/5818 I order that The Austral Brick Co Pty Ltd of Plant 1 Walgrove Road Horsley Park NSW pay to Adel Kamel of 47 Kalang Avenue St Marys NSW the amount of eight hundred and sixty seven dollars and fifty cents on or before 10 August 2000.”


(14) On 16 August 2000 the plaintiff lodged an application for a rehearing (second rehearing) of the decision of 27 July 2000. The grounds for seeking a rehearing did not involve his being disadvantaged because he proceeded with the hearing without the assistance of an interpreter. The plaintiff complained that the Tribunal member was not fair, did not take into account all the reports tendered by him and that he accepted the evidence of the respondent in relation to the price of the bricks.

(15) On 19 September 2000 the Tribunal dismissed the application for a rehearing.

(16) On 20 October 2000 the plaintiff filed a summons in this court.

(17) On 7 November 2000 the defendant filed a notice of motion seeking an order that the plaintiff’s summons be dismissed. The subsequent filing of the amended summons cured the defects in pleading and the motion did not proceed.

(18) On 30 November, 2000 an amended summons was filed. This was the first time the issue of the lack of an interpreter at the rehearing was raised.

The Law

5 The Fair Trading Act 1998 established a Tribunal to adjudicate consumer and commercial disputes. The objects of the Act are to ensure that the Tribunal is accessible and its proceedings are efficient and effective and the Tribunal’s decisions are fair. The proceedings are to be determined in an informal, expeditious and inexpensive manner. Part 4 of the Act established an elaborate and detailed procedural framework. According to s 27 of that Act 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 natural justice. 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. An appeal to this court from the Referee’s decision is confined to a question of law (s 61). Section 60 gives this court a limited right to review the Tribunal’s decision. The plaintiff relied on s 60(3)(b).

6   Section 60 provides:

“Appeals and rehearings


60. Review by prerogative writ etc generally excluded

(1) Except as provided by this section, a court of record has no jurisdiction to grant relief or a remedy by way of:


(a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or

(b) a declaratory judgment or order, or

(c) an injunction,

in respect of a matter heard and determined or to be heard or determined by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter.

(2) A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in which the jurisdiction of the Tribunal to determine the matter was disputed, where the ground on which the relief or remedy is sought is that:


(a) the Tribunal gave a ruling as to its jurisdiction that was erroneous, or

(b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed.

(3) A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in which the Tribunal has made an order, where the ground on which the relief or remedy is sought is that:


(a) the Tribunal had no jurisdiction to make the order, or

(b) in relation to the hearing or determination of the matter, a party to the claim had been denied natural justice.”

(i) Denial of natural justice

7   The starting point in relation to natural justice, has been stated by Professor S A de Smith, Judicial Review of Administrative Act, 2nd ed. at 180-181:

“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.”

8   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 such 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 p 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.”

9   In relation to procedural fairness, Mason J stated in Kioa 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 the 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 (454 and 455).

(ii) Failure to grant an adjournment

10   In his affidavit the plaintiff gave reasons why he did not request an adjournment due to the lack of an interpreter. These were firstly that they had only been waiting for the interpreter for a short amount of time and assumed that he/she was about to turn up any minute, and assist in the proceedings. Not wishing to appear in any way unco-operative to the Tribunal, the plaintiff agreed to proceed. Secondly, that the plaintiff grew up and was educated in a culture (Egyptian) where institutions such as judges, courts, State Tribunals and police are held in considerable fear and great respect. In Egypt no-one makes fun of such institutions. Consequently, to a person raised in such a culture, if a judge asks whether you mind commencing proceedings even though the interpreter has yet to arrive, it is normal to wish to appear as co-operative and as pleasant as possible and to agree to the judge’s request. Very few people raised in such a culture would deliberately refuse the judge’s request to proceed, even though with hindsight it may not have been in their interest to do so. Thirdly, neither the Tribunal member nor any other official of the Tribunal informed the plaintiff that he possessed the right to a veto and that if the plaintiff were to insist, the proceedings would cease immediately until an interpreter had arrived. The plaintiff always assumed that the judge (or Tribunal member) had the final word as to the conduct and progress of the proceedings, and could continue on if he/she deemed it appropriate.

11   In cross examination the plaintiff said that the reason he did not apply for an adjournment was that he thought it might affect his case. He then volunteered that the culture in Egypt was different. While the plaintiff has stated that very few people raised in Egyptian culture would refuse a judge’s request, this reluctance does not extend to not criticising a judge’s conduct after the hearing has been completed. After both hearings the plaintiff has sought a rehearing on the basis of the bias of the “judge”.

12   In Bayram & Ors v Chris Benton (1994) 117 FLR 414 Kearney J of the Supreme Court of the Northern Territory considered whether failure to grant an adjournment can constitute a denial of natural justice. It was cited with approval by Rolfe J in Hutley v Meigan & Ors (1997) FCR 442. In Bayram the issue before His Honour was whether the appellants had been denied natural justice in that they had not been afforded a reasonable opportunity to present their case, in all the circumstances; and that this denial of natural justice meant that the Tribunal’s decision was wrong in law, or, alternatively, established that the conduct of the proceedings was unfair (p 417). Kearney J referred to the decision in Sullivan v Department of Transport (1978) 20 ALR 323 and quoted from an instructive passage in the judgment of Deane J at 342-343, where His Honour said:

“In the ordinary case, a tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues and to permit the parties to present their respective cases in the manner which they think appropriate. Circumstances may, of course, arise in which such a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner in which a particular party wishes to present his case. Ordinarily, however, in the absence of a request for assistance or guidance by a party who is appearing in person, a tribunal under a duty to act judicially should be conscious of the fact that undue interference in the manner in which a party conducts his case may, no matter how well intentioned, be counter-productive and, indeed, even overawe and distract a party appearing in person to the extent that it leads to a failure to extend to him an adequate opportunity of presenting his case.
A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. If the tribunal had, in the present matter, refused an application by the appellant for an adjournment to enable him to procure Dr Evans’ attendance as a witness, that refusal may well have constituted such a failure. No such application for an adjournment was, however, made … The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478 …). In this regard, however, it is important to remember that the relevant duty of the tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.”

13   The plaintiff s evidence is that at no time during the hearing did the Tribunal inform him that it wanted to see the qualifications possessed by Mr Ken Carroll. According to the plaintiff, no person ever informed him that along with the evidence he had adduced from Mr Carroll, the Tribunal also needed to know and take into account evidence of Mr Carroll’s qualifications which enabled him to comment on the issue of the lowered value of the house. Either Mr Montgomery (the member) did actually say something in court and the plaintiff’s lack of English impeded him from understanding what was said or Mr Montgomery made no comment at the hearing. The plaintiff then submits that by not being permitted to give the Tribunal member details of Mr Carroll’s qualifications, it followed that the Tribunal member preferred the defendant’s experts.

14   Mr Driene gave evidence that at the hearing on 28 June 2000 the plaintiff tendered two valuations. One was from a real estate agent and the other was from Ken Carroll, licensed valuer. During the course of his submissions Mr Driene said words to the effect of “Ken Carroll has no qualifications to pass comment on the quality of the bricks. He is a licensed valuer and not a brick expert. I question the valuation as Mr Carroll is expressing a valuation based upon Mr Kamel’s opinion about the quality of the bricks”. Mr Montgomery the Tribunal member, made no comment in relation to this issue. The qualifications of Mr Carroll’s qualifications as a valuer were never disputed. What was disputed were his qualifications to pass comment as a “brick expert”. I accept Mr Driene’s evidence, that it was not disputed that Mr Carroll, was a valuer. As previously stated Mr Cantali’s area of expertise was bricks and a comment was made by Mr Driene that Mr Carroll was not a “brick expert”.

15   As previously stated, in cross examination the plaintiff made a conscious decision to proceed with the hearing on 20 July 2000. He told the Tribunal member that he wanted to proceed. The Tribunal member did not refuse to grant an adjournment. The plaintiff was aware that he could request an adjournment. He had done so on previous occasions before the Tribunal. The Tribunal member was entitled to proceed to hear the matter. He would have been unaware of what the plaintiff’s thought processes were. It is my view that the Tribunal member gave the plaintiff a reasonable opportunity to present his case. In these circumstances there was no denial of natural justice. Further it was open to the Tribunal member to prefer one expert who had specific expertise in bricks over that of the defendant’s expert, especially where the Tribunal member attended a view and usually inspected the bricks in order to make his determination. As was stated in Sullivan there is no obligation cast upon a Tribunal member to advise a party as to how best to present their case. The plaintiff has already sought a rehearing which complained about the Tribunal member preferring the view of the defendant’s experts over that of his expert after each hearing, but chose not to raise the issue of the lack of an interpreter.

(iv) Lack of an interpreter

16   The first entitlement of a litigant who comes to a court is to have due process of law. Due process includes an entitlement to a fair trial which is normally conducted in the open (see Stead v State Government Insurance Commission (1986) 161 CLR 141 and Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47). It also normally includes an entitlement to be informed, in a language which the litigant understands, of the nature of the case. Where the litigant cannot communicate orally in English it also normally includes, in my opinion, the entitlement to the assistance of an interpreter (see Gradidge v Grace Bros Pty Ltd (1998) 93 FLR at 414 per Kirby P).

17 However, the Fair Trading Tribunal Act contained a specific legislative provision as to the use of an interpreter in proceedings before the Tribunal. Section 34 Fair Trading Tribunal Act 1998 provides:

“Interpreters

(1) A person appearing before the Tribunal to give evidence may request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person.

(2) …

(3) If the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in spoken English, the Tribunal must appoint an interpreter for the purposes of communication between the Tribunal and the person, even though the person has not made a request under this section.

(4) In this section, "interpreter" includes a person who interprets signs or other things made or done by a person who cannot speak adequately for the purposes of giving evidence in proceedings.”

18 Section 34(3) and (4) strictly interpreted apply only when a plaintiff gives evidence. However s 34(1) is wider and permits the Tribunal member to appoint an interpreter for the purposes of communication between the Tribunal and the person. The Tribunal member must appoint an interpreter unless he or she considers that the person is sufficiently proficient in spoken English.

19 I am not satisfied that the plaintiff was disadvantaged. He was aware that he could have asked for an adjournment. There was nothing to suggest that the Tribunal member was not aware of his obligations under s 34(3). I accept Mr Driene’s evidence. Mr Carroll’s qualifications as a valuer were not disputed at the hearing. The plaintiff was able to tender reports. From the reading of the judgment it appears that the plaintiff presented his case well. There is no utility in remitting this matter to the Fair Trading Tribunal. As previously stated, the Tribunal member was entitled to prefer Mr Cantali’s evidence over that of Mr Carroll, particularly when he had the opportunity to view the bricks. There was no denial of natural justice. Rather, this is the third time that the plaintiff has complained about the Tribunal member’s acceptance of the defendant’s expert evidence in preference to his own experts.

(iii) Whether it is fatal to the plaintiff’s case to have not joined the FFT as a defendant ?

20   The plaintiff did not join the Fair Trading Tribunal as a defendant. The defendant submitted that certiori and mandamus are person orders as against the Tribunal and cannot be made in circumstances where the Tribunal, or relevant Tribunal member, have not been joined as a party and either filed a submitting appearance or appeared to make submissions - see Ex parte Wilson; Re Cuff (No 2) 40 SR(NSW) 559 at 565-9; R v Commonwealth Industrial Court; Ex parte Cocks (1968) 121 CLR 313 at 324. According to the first defendant, the failure to join the Fair Trading Tribunal as a party is fatal to his case.

21   The plaintiff tendered correspondence between the Fair Trading Tribunal and his barrister. By letter of 27 December 2000 the deputy registrar of the Fair Trading Tribunal informed the plaintiff’s counsel that in the event an appeal was lodged with the Supreme Court against an order of the Tribunal, and the Tribunal was named as respondent, the Tribunal almost invariably instructs the Crown Solicitor to file a submitting appearance, save as to costs, with the Supreme Court. The Tribunal does not appear to make submission as to the conduct of the hearing or the merits of either party’s case. Further on 7 February 2001 the registrar of the Fair Trading Tribunal advised the plaintiff’s counsel that any further requests for advice regarding procedural requirements of the Supreme Court should be directed to that court and that as adjudicator of the original dispute, the Tribunal cannot advise one party how to conduct an appeal against its decision.

22   My view is that common law suggests that as such relief, in this case to be granted under a writ of certiorari, lies primarily against the decision maker. It is necessary for the decision maker to be joined as a defendant to the proceedings. In the cases of Ex parte Wilson; Re Cuff (No 2) 1940 SR (NSW) 559 and R v Commonwealth Industrial Court; Ex parte Cocks (1965) 121 CLR 313, it was held that judicial review could not proceed without the joinder of the decision maker. Furthermore, in El Ali v Government Insurance Office of New South Wales & Anor (1988) 15 NSWLR 303 the claimant’s case was considered inadequate because he had not joined the decision maker to the proceedings. As the appeal is to be dismissed, it is not necessary to finally determine this issue.

23   There was no denial of natural justice. I dismiss the amended summons. Costs are discretionary. Costs should follow the event. The plaintiff is to pay the defendant’s costs as agreed or assessed.

24   The orders I make are:

(1) The amended summons filed 30 November 2000 is dismissed.

25   (2) The plaintiff is to pay the defendant’s costs as agreed or assessed.

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Last Modified: 03/20/2001