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Kyriakou v Long

Kyriakou v Long

Case [2014] NSWCA 308 4 September 2014

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kyriakou v Long [2014] NSWCA 308
Hearing dates: 27 August 2014
Decision date: 04 September 2014
Before: Basten JA at [1];
Meagher JA at [2]
Decision:
(1) Application for an adjournment of the hearing of the application for leave to appeal refused.
(2) Application for leave to appeal from the judgments and orders of White J of 10 and 11 December 2013 dismissed.
(3) Appeal brought by notice of appeal filed on 6 January 2014 dismissed as incompetent.
(4) Order the applicant to pay the respondents' costs of that appeal and application for leave, in the case of the first respondent up to 4 March 2014, and in the case of the second respondent up to 25 June 2014.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: APPEAL - application for leave - no appearance on behalf of applicant - appeal from refusal to quash decision of Consumer, Trader and Tenancy Tribunal for denial of procedural fairness - no arguable error - decision-making process included opportunity for rehearing by decision-maker - application for rehearing made and rejected - in the circumstances, no utility in adjourning application for leave
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 68
Supreme Court Act 1970 (NSW), ss 69, 101
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16(2), 51.12
Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Calvin v Carr [1980] AC 574
Coulter v The Queen [1988] HCA 3; 164 CLR 350
Greyhound Racing NSW v Cessnock & District Agricultural Assn [2006] NSWCA 333
R v Marks; Ex parte Australian Building Construction Employees & Builders Labourers' Federation [1981] HCA 33; 147 CLR 471
South Australia v O'Shea [1987] HCA 39; 163 CLR 378
Category: Principal judgment
Parties: Andrew Kyriakou (Applicant)
Guo Fen Long (First Respondent)
New South Wales Civil & Administrative Tribunal (Second Respondent)
Representation: Counsel:
No appearance (Applicant)
Submitting appearance (First Respondent)
Submitting appearance (Second Respondent)
Solicitors:
Self-represented (Applicant)
Jane Crittenden Lawyer (First Respondent)
Crown Solicitor's Office (Second Respondent)

File Number(s): 2014/4091
Decision under appeal

Jurisdiction:

9111

Citation:

Kyriakou v Long [2013] NSWSC 1890
Kyriakou v Long (No 2) [2013] NSWSC 1891

Before:

White J

File Number(s):

2013/371742

Judgment

BASTEN JA: I agree with Meagher JA.

MEAGHER JA: The Court has before it an application for leave to appeal from two judgments of White J (the primary judge). The application is made in proceedings commenced by the filing of a notice of appeal from the first of those judgments. The respondents…

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.

Continue reading Kyriakou v Long

Details

AGLC: Kyriakou v Long [2014] NSWCA 308
Case: [2014] NSWCA 308
Decision Date: 04 September 2014

CaseChat Overview and Summary

This matter concerned an application for leave to appeal from a decision of White J, which itself arose from a refusal to quash a decision of the Consumer, Trader and Tenancy Tribunal. The applicant, Kyriakou, alleged a denial of procedural fairness by the Tribunal. The respondents were Long and others.

The primary legal issue before the Court of Appeal was whether there was an arguable error in the decision below, which had refused to quash the Tribunal's decision. This involved considering whether the Tribunal's decision-making process, which included an opportunity for a rehearing by the decision-maker, had afforded procedural fairness to the applicant. The applicant had previously made and had rejected an application for such a rehearing.

Basten and Meagher JJA found no arguable error in the decision of White J. Their Honours reasoned that the Tribunal's process, which allowed for a rehearing, provided a sufficient opportunity for the applicant to present their case. The prior rejection of the applicant's request for a rehearing did not, in the circumstances, demonstrate a denial of procedural fairness. Consequently, the Court determined there was no utility in adjourning the application for leave to appeal.

The Court ordered that the application for an adjournment be refused, and the application for leave to appeal be dismissed. The appeal itself was dismissed as incompetent, and the applicant was ordered to pay the respondents' costs.

Orders

Orders of the court

(1) Application for an adjournment of the hearing of the application for leave to appeal refused.

(2) Application for leave to appeal from the judgments and orders of White J of 10 and 11 December 2013 dismissed.

(3) Appeal brought by notice of appeal filed on 6 January 2014 dismissed as incompetent.

(4) Order the applicant to pay the respondents' costs of that appeal and application for leave, in the case of the first respondent up to 4 March 2014, and in the case of the second respondent up to 25 June 2014.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Kyriakou v Long [2014] NSWCA 308

Most Recent Citation

Kyriakou v Long [2015] NSWCATAD 31

Cases citing this decision · 8 of 8 shown

Secretary of the Ministry of Health v Australian Paramedics Association (NSW)
[2022] NSWSC 1431

…v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 Kyriakou v Long [2014] NSWCA 308 Lord v Flight Centre Ltd (No 2) (2006) 156 IR 420; [2006] NSWIRComm 282 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 2…
Burns v Gaynor (No 2)
[2022] NSWCATAD 114 Para 18

…n would be futile. See, in a different but related context, Kyriakou v Long [2013] NSWSC 1890 at [33] and [55], approved on appeal in Kyriakou v Long [2014] NSWCA 308 at [18]. Section 38(4) of the Act is consistent with this approach, in that it requires the Tribunal to act according to the substantial merits of th…
Ferella v Chief Commissioner of State Revenue
[2020] NSWCATAD 327 Para 18

…n would be futile. See, in a different but related context, Kyriakou v Long [2013] NSWSC 1890 at [33] and [55], approved on appeal in Kyriakou v Long [2014] NSWCA 308 at [18]. Section 38(4) of the Act is consistent with this approach, in that it requires the Tribunal to act according to the substantial merits of th…
Lazarus v Director of Public Prosecutions (NSW)
[2015] NSWCA 408 Para 5

…application for leave to appeal, the Court approaches that question in the same way as similar applications made and dealt with in Kyriakou v Long [2014] NSWCA 308 at [2], [3], [23], [24]; Roskott v Commonwealth Bank of Australia [2014] NSWCA 341 at [14] and Gillies v District Court of New South Wales [2014] NSWCA…
Kyriakou v Long
[2015] NSWCATAD 31 Para 11

…-heard but had not set out what his defence would be: Kyriakou v Long [2013] NSWSC 1890. Mr Kyriakou appealed to the Court of Appeal: Kyriakou v Long [2014] NSWCA 308. Mr Kyriakou did not appear and sent an email stating that he was unwell. The Court of Appeal refused his application for an adjournment because ther…
Aquaqueen International Pty Ltd v Titan National Pty Ltd (No. 3)
[2014] NSWDC 219 Para 2

…circumstances as follows (at [14]): "The appropriate course to take in these circumstances is that which was adopted by the Court in Kyriakou v Long [2014] NSWCA 308. In that case the applicant also failed to appear, the Registrar having been advised early on the morning of the hearing by a housemate that the appl…
Gillies v District Court of New South Wales
[2014] NSWCA 357 Para 4

…In view of the authority of the decision of this Court in Kyriakou v Long [2014] NSWCA 308 at [2], [3], [23] and [24] per Meagher JA with whom Basten JA agreed and in Roskott v Commonwealth Bank of Australia [2014] NSWCA 341 at [14] per Basten JA, with whom Meagher JA agreed, the Court declined what it took to be a…
Roskott v Commonwealth Bank of Australia
[2014] NSWCA 341 Para 1

…The appropriate course to take in these circumstances is that which was adopted by the Court in Kyriakou v Long [2014] NSWCA 308. In that case the applicant also failed to appear, the Registrar having been advised early on the morning of the hearing by a housemate that the applicant was ill. The application for an…

View all 8 citing cases →

Cases cited in this decision · 8 of 8 shown

Kyriakou v Long (No. 2)
[2013] NSWSC 1891 Para 1

…applicant's claim in relation to the alleged denial of procedural fairness, he had no jurisdiction to grant the relief sought: Kyriakou v Long (No 2) [2013] NSWSC 1891.…
Kyriakou v Long
[2013] NSWSC 1890 Para 1

…gs were heard by the primary judge, sitting in the Equity Division, on 9 and 10 December 2013. His Honour dismissed that application: Kyriakou v Long [2013] NSWSC 1890. He did so on the basis that, taking into account the whole of the decision-making process before the Tribunal, including the application for reheari…
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das
[2012] NSWCA 164 Para 1

…hat is merely arguable. The relevant principles are collected by Basten JA in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[39].…
Greyhound Racing NSW v Cessnock & District Agricultural Association
[2006] NSWCA 333

…012] NSWCA 164 Calvin v Carr [1980] AC 574 Coulter v The Queen [1988] HCA 3; 164 CLR 350 Greyhound Racing NSW v Cessnock & District Agricultural Assn [2006] NSWCA 333 R v Marks; Ex parte Australian Building Construction Employees & Builders Labourers' Federation [1981] HCA 33; 147 CLR 471 South Australia v O'Shea […
Coulter v The Queen
[1988] HCA 3 Para 1

…tertained by the relevant Court including when they have little or no realistic prospects of success: per Deane and Gaudron JJ in Coulter v The Queen [1988] HCA 3; 164 CLR 350 at 359.…
South Australia v O'Shea
[1987] HCA 39 Para 1

…ample, albeit in a different context, the approach adopted by Mason CJ (Murphy, Aickin and Wilson JJ relevantly agreeing) in South Australia v O'Shea [1987] HCA 39; 163 CLR 378 at 389. In some cases the original or primary decision-making process may involve a staged consideration before the making of the operat…
R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation
[1981] HCA 33 Para 1

…n: see Calvin v Carr [1980] AC 574 at 595-596; and R v Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1981] HCA 33; 147 CLR 471 at 484-485.…
[1980] AC 574
[1980] AC 574 Para 1

…y the earlier determination was wrong. This circumstance justified the refusal of relief in the exercise of the Court's discretion: see Calvin v Carr [1980] AC 574 at 595-596; and R v Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1981] HCA 33; 147 CLR 471 at 484-…

Legislation cited in this decision · 3

Supreme Court Act 1970 (NSW)
101, 101(1)(a), 101(2)(e), 101(2)(r), 69 6 mentions (from Para 1)
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
68 2 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
36.16(2), 51.12 2 mentions (from Para 1)

Medium Neutral Citation:	Kyriakou v Long [2014] NSWCA 308
Hearing dates:	27 August 2014
Decision date:	04 September 2014
Before:	Basten JA at [1]; Meagher JA at [2]
Decision:	(1) Application for an adjournment of the hearing of the application for leave to appeal refused. (2) Application for leave to appeal from the judgments and orders of White J of 10 and 11 December 2013 dismissed. (3) Appeal brought by notice of appeal filed on 6 January 2014 dismissed as incompetent. (4) Order the applicant to pay the respondents' costs of that appeal and application for leave, in the case of the first respondent up to 4 March 2014, and in the case of the second respondent up to 25 June 2014. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - application for leave - no appearance on behalf of applicant - appeal from refusal to quash decision of Consumer, Trader and Tenancy Tribunal for denial of procedural fairness - no arguable error - decision-making process included opportunity for rehearing by decision-maker - application for rehearing made and rejected - in the circumstances, no utility in adjourning application for leave
Legislation Cited:	Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 68 Supreme Court Act 1970 (NSW), ss 69, 101 Uniform Civil Procedure Rules 2005 (NSW), rr 36.16(2), 51.12
Cases Cited:	Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Calvin v Carr [1980] AC 574 Coulter v The Queen [1988] HCA 3; 164 CLR 350 Greyhound Racing NSW v Cessnock & District Agricultural Assn [2006] NSWCA 333 R v Marks; Ex parte Australian Building Construction Employees & Builders Labourers' Federation [1981] HCA 33; 147 CLR 471 South Australia v O'Shea [1987] HCA 39; 163 CLR 378
Category:	Principal judgment
Parties:	Andrew Kyriakou (Applicant) Guo Fen Long (First Respondent) New South Wales Civil & Administrative Tribunal (Second Respondent)
Representation:	Counsel: No appearance (Applicant) Submitting appearance (First Respondent) Submitting appearance (Second Respondent) Solicitors: Self-represented (Applicant) Jane Crittenden Lawyer (First Respondent) Crown Solicitor's Office (Second Respondent)
File Number(s):	2014/4091
Decision under appeal	Jurisdiction: 9111 Citation: Kyriakou v Long [2013] NSWSC 1890 Kyriakou v Long (No 2) [2013] NSWSC 1891 Before: White J File Number(s): 2013/371742