Kertai v Deal

[2004] NSWSC 1085

CITATION:	Kertai v Deal [2004] NSWSC 1085
HEARING DATE(S):	15 November 2004
JUDGMENT DATE:	22 November 2004
JURISDICTION:	Common Law Division Administrative Law List
JUDGMENT OF:	Master Malpass at 1
DECISION:	The summons is dismissed; the plaintiff is to pay any costs incurred by the defendant; the exhibits are returned.
CATCHWORDS:	Appeal from Tribunal in respect of small claim - no decision on a question with respect to a matter of law - need for legislative or other action to restrict the bringing of appeals to this court in respect of such claims.
LEGISLATION CITED:	Consumer Trader & Tenancy Act 2001
PARTIES :	John Kertai (Plaintiff) Robert Francis Deal t/as BRAD Removals & Storage (Defendant)
FILE NUMBER(S):	SC 30094 of 2002
COUNSEL:	In person (Plaintiff) In person (Defendant)
SOLICITORS:	N/A N/A

LOWER COURTJURISDICTION:	Fair Trading Tribunal
LOWER COURT FILE NUMBER(S):	1999/1519
LOWER COURT JUDICIAL OFFICER :	Member W Faulkes, Member C Paull

- 1 -

OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINSTRATIVE LAW LIST

Master Malpass

22 November 2004

30094 of 2002 John Kertai v Robert Francis Deal t/as BRAD Removals and Storage

JUDGMENT

1 Master: These proceedings arise out of an arrangement made on 16 August 1997 for the transport of household furniture. At that time, the defendant carried on a removals and storage business. The plaintiff arranged with him to have household furniture transported to Port Macquarie.

2 Since then, there has been a long and unfortunate history of conflict. Proceedings have been brought in the Local Court. There have been hearings and re-hearings in the Fair Trading Tribunal (the Tribunal). The matter is now in this court.

3 What is presently relevant commences with an application brought by the plaintiff in the Tribunal on 15 June 1999. In that application, in essence the plaintiff was seeking to recover a sum in the order of $1,500. It was said to represent an overcharge for the amount that should have been payable for the transporting of the furniture (the sum that has been paid was in the order of $3,000).

4 The proceedings before this court presently concern a decision given on 3 July 2000 (in respect of the hearing that took place on 15 June 2000) and a decision on an application for re-hearing which was given on 18 September 2004. The court is not presently concerned with earlier hearings and re-hearings.

5 The parties appeared in person before the Tribunal. Written reasons have been provided for both decisions.

6 If the hearing that took place on 15 June 2002 was recorded, there is no transcript made available to this court. Largely, what took place during that hearing is a matter for conjecture.

7 The reserved decision delivered on 3 July 2000 saw the dismissal of the plaintiff’s claim. His application for re-hearing was dismissed.

8 On 14 October 2002, he filed a summons for leave to appeal. The hearing of the summons took place on 15 November 2004. Again, the parties appeared in person.

9 There is a limited avenue of appeal from a decision of the Tribunal. The Consumer Trader & Tenancy Tribunal Act 2001 (the Act) restricts it to a case where a Tribunal decides a question with respect to a matter of law. Apart from challenge by way of appeal, relief may be granted (under s65 of the Act) where, inter alia, there has been a denial of procedural fairness.

10 The hearing presented the court with a real challenge. Apart from the lack of knowledge as to what had taken place during the hearing, the parties in person could only give the court limited assistance.

11 Before proceeding further, I should mention one matter which presents an obstacle for the plaintiff. The appeal brought against the decision made on 3 July 2000 is well out of time and incompetent. It can only be maintained if an extension of time was granted. No such application has been made and the court does not have before it material which would support a granting of an extension of time.

12 For present purposes, I shall put that matter side and look at what might be described as the merits of the appeal. Broadly speaking, it seems that before the Tribunal the parties were in dispute as to the contractual arrangements that had been made for the transporting of the furniture.

13 The court has before it two bundles of documents (the documentation). One bundle is Exhibit A (it was a collection of documents tendered by the plaintiff). The other is Exhibit 1 (a collection of documents tendered by the defendant). It does not have any other material.

14 The bundles of documents reveal that the Tribunal had before it documentation signed by the plaintiff. Generally speaking, there was in this court dispute between the parties as to whether or not this documentation constituted a contract.

15 There was also a dispute before the Tribunal as to whether or not the defendant had given a quotation for the transportation costs. The defendant had contended that what had been provided by him was no more than an “estimate”.

16 The Tribunal member looked at the documentation and other material that had been placed before her. After so doing, she came to a decision in favour of the defendant.

17 I consider that it was reasonably open to the Tribunal to find that a quotation had not been given (the defendant had done no more than provide an estimate as to transportation costs).

18 I have carefully looked at the contents of the documentation and the written reasons of the Tribunal. In my view, I am not satisfied that there has been any error in deciding a question with respect to a matter of law.

19 Primarily, one matter only was argued by the plaintiff. It concerned a statement that had been prepared by the defendant. It seems to be common ground that the statement was one of a number of documents placed before the Tribunal member by the defendant. There is nothing to suggest that objection was made to the Tribunal member having regard to this statement.

20 Be that as it may, it was argued that the Tribunal member fell into error by having regard to the statement. The basis upon which it was said that such error arose was far from clear. There was complaint that the statement had been prepared for the purposes of the Local Court proceedings. There was also complaint that it was a “perjurious document”.

21 I am not satisfied that there was error on the part of the Tribunal member in receiving the document. Even if there had been error in her so doing, I am not satisfied that it could be regarded as an error in deciding a question with respect to a matter of law. Further, a reading of the written reasons does not support the view that the statement was material to the decision reached by the Tribunal member. I should add that the documentation does not disclose that these complaints were ventilated in the re-hearing application.

22 Although it was not touched upon during oral submissions, for completeness I should add that I am not satisfied that the plaintiff was denied procedural fairness.

23 I am not satisfied that there is any basis for disturbing either the decision of the Tribunal member or the decision on the re-hearing application.

24 It needs to be appreciated by parties that an appeal to this court is not available merely because a party is unhappy with decisions made by the Tribunal.

25 This is another of many cases where an appeal is maintained in respect of an amount that can be regarded as too small to be litigated in this court. Too much of this court’s valuable time is now taken up by appeals of such nature. This appeal had a hearing time estimate between half a day and one day. The need for legislative or other change is imminent. There is a real need for such appeals to either be the subject of appropriate restrictions or for them to be diverted to the District Court.

26 The present case is certainly not one that justifies activity in the Tribunal and courts for a period in the order of seven years. This court should not have to set aside a whole day to entertain it.

27 The summons is dismissed. The plaintiff is to pay any costs incurred by the defendant. The exhibits are returned.

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Last Modified: 11/29/2004