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Kyriakou v Long

Kyriakou v Long

Case [2013] NSWSC 1890 10 December 2013

Jurisdiction

Procedural Fairness

Natural Justice & Procedural Fairness

Discretionary Nature of Certiorari

Rehearing

Administrative Law

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Kyriakou v Long [2013] NSWSC 1890
Hearing dates: 9 and 10 December 2013
Decision date: 10 December 2013
Jurisdiction: Equity Division - Duty List
Before: White J
Decision:
Refer to paras [56] and [57] of judgment

Catchwords: ADMINISTRATIVE LAW - prerogative orders - application for order in the nature of certiorari to quash decision of Consumer, Trader and Tenancy Tribunal (CTTT) - applicant absent from hearing before CTTT because of illness - whether CTTT proceedings lacked procedural fairness - discretionary nature of certiorari - whether order in nature of certiorari should be granted when Consumer, Trader and Tenancy Tribunal Act 2001 s 68 provides for rehearing - on rehearing applicant failed to address substantive merits of case - whether process is procedurally fair is to be determined by examining entirety of process including any rehearing
Legislation Cited: Supreme Court Act 1970
Consumer, Trader and Tenancy Tribunal Act 2001
Evidence Act 1995
Bankruptcy Act 1966
Cases Cited: Re Construction Forestry and Mining Employees Union, Ex parte Multiplex Constructions Pty Limited (1992) 105 ALR 291
Atkinson v Crowley [2011] NSWCA 194
Re Refuge Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
D'Amore v Independent Commission Against Corruption [2013] NSWCA 187
Calvin v Carr [1980] AC 574
Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333
Cameron v Cole (1944) 68 CLR 571
Texts Cited: Aronson Dyer & Groves, Judicial Review of Administrative Action, 4th ed
Category: Principal judgment
Parties: Andrew Kyriakou (Plaintiff)
Guo Fen Long (Defendant)
Representation: Counsel:
In person (Plaintiff)
A Bulley (Defendant)
Solicitors:
The Australian Legal Practice (Defendant)

File Number(s): 2013/371742

Judgment

HIS HONOUR: This is an application under s 69 of the Supreme Court Act 1970 for an order in the nature of certiorari to quash a decision of the Consumer, Trader and Tenancy Tribunal given on 29 November 2013.

The application should have been brought in Common Law Division, but nothing turns on this. No interlocutory relief was sought. Both parties treated the matter as urgent and no adjournment was sought. The summons was filed in Court yesterday and dealt with on a final basis on the affidavits that were read.

At the conclusion of submissions counsel for the defendant raised the possibility of further submissions being provided overnight. But as the matter was treated as urgent, and I had indicated I had intended to deliver judgment this morning, and said that the delivery of such submissions would not provide the plaintiff, who is self-represented, with adequate time to respond, I did not grant that leave.

I am told that nonetheless my associate has received correspondence from the parties in which either further submissions were provided, or reference to authority was made. I did not give leave for any such steps to be taken and I have not had regard to what was forwarded to my associate.

Although the plaintiff seeks to quash orders of the Tribunal, the Tribunal was not joined as…

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 [2013] NSWSC 1890
Case: [2013] NSWSC 1890
Decision Date: 10 December 2013

CaseChat Overview and Summary

The case of Kyriakou v Long involved the applicant, Kyriakou, appealing against a decision made by the Consumer, Trader and Tenancy Tribunal (CTTT). Kyriakou sought an order in the nature of certiorari to quash the CTTT's decision, arguing that the tribunal proceedings lacked procedural fairness due to his absence from the hearing as a result of illness. The court had to determine whether the absence of Kyriakou from the hearing rendered the proceedings unfair and whether an order in the nature of certiorari should be granted, considering the discretionary nature of such an order and the existence of a statutory rehearing provision.

The legal issues the court was required to decide included whether Kyriakou's absence from the CTTT hearing due to illness resulted in a lack of procedural fairness, and if so, whether the discretionary nature of an order in the nature of certiorari warranted its issuance in this context. Additionally, the court had to consider the effect of section 68 of the Consumer, Trader and Tenancy Tribunal Act 2001, which provides for a rehearing of the matter. The court needed to determine whether the process was procedurally fair by examining the entire process, including any rehearing, and whether Kyriakou adequately addressed the substantive merits of the case during the rehearing.

The court held that the absence of Kyriakou from the hearing due to illness did not necessarily render the proceedings unfair, particularly as the CTTT has procedures in place to accommodate such situations. The court emphasised that the process is procedurally fair if it is examined in its entirety, including any rehearing. In this case, the rehearing provided Kyriakou with an opportunity to address the substantive merits of the case, which he failed to do. The court exercised its discretion not to grant the order in the nature of certiorari, considering the availability of a statutory rehearing and Kyriakou's failure to address the substantive merits during the rehearing. The court found that the process was procedurally fair when considering the entire proceedings, including the rehearing.

The final orders of the court were to dismiss the application for an order in the nature of certiorari. The court found that the procedural fairness of the proceedings was not compromised, given the availability of a statutory rehearing and the applicant's failure to address the substantive merits of the case during the rehearing. The court's decision underscored the importance of examining the entire process, including any rehearing, in determining procedural fairness.

Orders