Lazic v Pacey and Ors

[2009] NSWDC 72

CITATION:	Lazic v Pacey and Ors [2009] NSWDC 72
HEARING DATE(S):	31/03/2009
EX TEMPORE JUDGMENT DATE:	8 April 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	The orders on the motion are as follows. The motion is dismissed, the respondents are to pay the appellants’ costs of the motion. The outstanding motion and the appeal are listed for hearing on 27 April 2009, noting a time estimate of one day plus and with liberty to the parties to apply in the event that that date proves to be unsuitable.
CATCHWORDS:	Appeal against the decision of the Consumer Tenancy and Trader Tribunal - the jurisdiction of the court to hear the matter - whether relief sought in nature - writ of certiorari
LEGISLATION CITED:	Consumer Trader and Tenancy Tribunal Act 2001 District Court Act 1973
CASES CITED:	Ideal Waterproofing Pty Limited v BuildCorp Australia Pty Limited 2004 NSWSC 765 Custom Credit in Liquidation v Commercial Tribunal of New South Wales 1999 NSWSC 1021 Italiano v Carbone 2005 NSWCA 177
PARTIES:	Mladin Lazic (Plaintiff) Andrew Pacey (First Defendant) Lisa Pacey (Second Defendant)
FILE NUMBER(S):	014/09
COUNSEL:	Mr Davies (Plaintiff) Mr Harrison (First Defendant and Second Defendant)
SOLICITORS:	McDonald Johnson Lawyers (Plaintiff) Bilbie Dan (First Defendant and Second Defendant)

JUDGMENT

1 The appellant seeks to appeal against the decisions of the Consumer Tenancy and Trader Tribunal made in proceedings HB0715913 and HB0721941. The relief sought in respect of the Tribunal’s decision appears in paragraphs 3 and 4 of the summons filed on 14 January 2009, namely:

3. That the judgment and orders of the court below be set aside.
4. That the matter be remitted for hearing in the court below.

2 The grounds for the appeal were:

1. That the judgment and associated orders are not fair and equitable.
2. That the decision of the court below to deal with the matter ex parte amounted to a denial of procedural fairness to the appellant.
3. That the Tribunal member erred in the court below in finding that the appellant is liable to the respondent in the sum of $110,158.40.

3 A stay of the orders of the Tribunal was granted by the registrar of this Court on 14 January 2009. The stay was expressed to continue until the appeal has been decided. The respondents to the appeal seek orders dismissing the appeal and vacating the stay.

4 The appeal was brought pursuant to s 67 of the Consumer Trader and Tenancy Tribunal Act 2001. This provision permits an appeal to be brought to this Court on a decision of the Tribunal with respect to a question of law. This phrase was interpreted by Sperling J, in Ideal Waterproofing Pty Limited v BuildCorp Australia Pty Limited 2004 NSWSC 765, agreeing with James J, in Custom Credit in Liquidation v Commercial Tribunal of New South Wales 1999 NSWSC 1021, as requiring that an appellant establish that:

1. The decision raised a discrete question of law.

2. The decision on the question of law was integral to the Tribunal’s conclusion.

3. The decision was wrong.

5 James J, also noted that the decision might be implicit rather than express and isolated but there must be a clearly identifiable error on a question of law.

6 In this case the basis for the appeal was that the appellant was not present before the court at the time the decision in favour of the defendants was made and that therefore he was denied natural justice. The defendants argued that the question of whether natural justice was afforded was a question of fact and that in seeking relief in the nature of a prerogative writ of certiorari the appellant was seeking an exercise of jurisdiction that this Court did not have.

7 The issue relating to natural justice in this case was whether, in deciding to proceed ex parte, the Tribunal exercised its discretion to do so in accordance with proper principles. My view that this raised a question at law was fortified by my reading of the decision of the Court of Appeal in Italiano v Carbone 2005 NSWCA 177, in which the Court of Appeal dealt with a claim of denial of natural justice in refusing an adjournment. The Court expressed no reservations on the matter of whether a question of law was involved.

8 In the case before me, the decision of the Tribunal that was the basis for the appeal was that in which the Tribunal determined to proceed with the hearing of the claim in the absence of the appellant. Before making such a decision it was necessary that the Tribunal consider the principles of natural justice that require that a party be given a reasonable opportunity to be heard before orders are made that are disadvantageous to that party’s interests.

9 Further, the Act contains a number of provisions directed at those principles. For instance, s 30 deals with proceedings causing disadvantage and s 35 deals with the opportunity for parties to present a case. Whether those principles were appropriately applied, in my view raises a question of law.

10 The next question was whether this Court had power to grant the relief sought, namely the setting aside of the decision of the Tribunal. As noted, the argument was that the effect of such an order would be the granting of relief in the nature of certiorari and that such relief was within the exclusive jurisdiction of the Supreme Court. I rejected the argument that the District Court was without power for the following reasons.

11 Discussion of relief in the nature of prerogative writs arose in Italiano v Carbone in circumstances where there was doubt whether the appellant had been joined as a party to the proceedings and therefore whether he had any right of appeal under s 67 of the Act. It was apparent from the decision of Basten, J, at [44], that the appellant argued his appeal on the alternative bases that the Tribunal’s decision was ultra vires and therefore should be quashed or that it should be dealt with as provided for in s 67 of the Act. The certiorari alternative was proposed in the context of the doubt that surrounded the appellant’s standing in the proceedings. The appellant’s standing was not in issue in this case.

12 Further, s 67 (3) confers on the District Court specific power having heard an appeal and decided the question of law involved to: remit its decision on the question to the Tribunal and to order a rehearing of the proceedings by the Tribunal. The exercise of that power necessarily involves the setting aside of the judgment and orders of the Tribunal. If the court were to do so in this case it would be exercising the power conferred by s 67 (3) of the Act.

13 Finally, in any event, I take the view that power to grant relief akin to a prerogative writ of certiorari has been conferred on this Court to permit the relief sought to be granted pursuant to s 65. Reference in that section to a court is not limited to the Supreme Court. In contrast, s 66 specifies the Supreme Court as the Court to which questions of law may be referred while proceedings continue and the District Court as the court to which appeals are to be brought.

14 In addition s 44 of the District Court Act confers on the District Court jurisdiction in respect of actions that if brought in the Supreme Court would be assigned to the Common Law Division of that Court.

15 This interpretation and these provisions in my view are consistent with the objects expressed in s 3 of the Consumer Tenancy and Trader Tribunal Act, which include the determination of proceedings in a manner that is informal, expeditious and inexpensive.

16 As far as the stay of the orders was concerned, the Tribunal directed the appellant to pay a large sum of money to the respondents. In the light of the fact that he was not heard before those orders were made, I consider it appropriate to continue the stay until his appeal is decided. The outcome of the appeal will determine whether he will be given an opportunity to be heard in defence of the respondent’s claims.

ORDERS

17 The orders on the motion are as follows. The motion is dismissed, the respondents are to pay the appellants’ costs of the motion.

18 The outstanding motion and the appeal are listed for hearing on 27 April 2009, noting a time estimate of one day plus and with liberty to the parties to apply in the event that the date proves to be unsuitable.

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