Maconachie v Kullenberg

Case [2005] NSWCA 294
CITATION:

Maconachie v Kullenberg & Ors [2005] NSWCA 294
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):

30 August 2005
 
JUDGMENT DATE: 


31 August 2005

JUDGMENT OF:

Giles JA at 1; McColl JA at 2; Basten JA at 70
DECISION:

(1) Grant the Claimant an extension of time within which to appeal from the judgment of the Master in the Common Law Division. (2) Grant leave to appeal and direct that the Notice of Appeal be filed within 7 days. (3) Allow the appeal to this Court and set aside the judgment and orders of the Master. (4) In lieu of the orders of the Master, order: (a) that the decision of the Consumer Trader and Tenancy Tribunal dated 9 August 2004 in proceedings No MV 04/20472 be set aside as against the Claimant; and (b) that the matter be remitted to the Consumer Trader and Tenancy Tribunal to be heard and determined according to law. (5) Order the Opponents to pay the Claimant's costs of the appeal and the proceedings before the Master, but have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.
CATCHWORDS:

ADMINISTRATIVE LAW - judicial review - procedural fairness - CONSUMER, TRADER AND TENANCY TRIBUNAL - whether Tribunal's order flawed - failure to comply with statutory procedure requiring person joined as party to be served with notice of the proceedings - finding that Claimant aided and abetted company's contravention of the Fair Trading Act 1987 - failure to give Claimant a reasonable opportunity to be heard - D
LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997
Consumer, Trader and Tenancy Tribunal Act 2001
Consumer, Trader and Tenancy Tribunal Regulation 2002
Fair Trading Act 1987
Home Building Act 1989
Supreme Court Rules 1970
Suitors' Fund Act 1951
CASES CITED:

Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261
Grygiel v Baine [2005] NSWCA 218
Italiano v Carbone [2005] NSWCA 177
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
NSW Breeding and Racing Stables Pty Ltd v Administrative Decisions Tribunal (NSW) (2001) 53 NSWLR 559
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Sullivan v Department of Transport (1978) 20 ALR 323
PARTIES:

Peter Robert Maconachie (Claimant)
Frank Pierre Kullenberg (First Opponent)
Elaine Ann Kullenberg (Second Opponent)
The Registrar, Consumer Trader & Tenancy Tribunal (Third Opponent)

FILE NUMBER(S):

CA 40040/05
COUNSEL:

Mr B Slowgrove (Claimant)
In person (First/Second Opponents)
Submitting appearance (Third Opponent)
SOLICITORS:

Marriott Oliver Solicitors (Claimant)
First/Second Opponents (In person)
I V Knight (Third Opponent)

LOWER COURT JURISDICTION:

Supreme Court

LOWER COURT FILE NUMBER(S):

SC 13297/04

LOWER COURT JUDICIAL OFFICER:

Master Malpass



                          CA 40040/05
                          SC 13297/04

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Details
AGLC
Maconachie v Kullenberg [2005] NSWCA 294
Case
[2005] NSWCA 294
Decision Date

CaseChat Overview and Summary

The appeal concerned a decision of the Consumer Trader and Tenancy Tribunal which found that the Claimant had aided and abetted a company's contravention of the *Fair Trading Act 1987*. The Claimant sought judicial review of this decision, arguing that the Tribunal had failed to afford him procedural fairness.

The primary legal issue before the Court of Appeal was whether the Tribunal's decision was vitiated by a failure to comply with statutory requirements for service and a denial of procedural fairness. Specifically, the court considered whether the Claimant, who was joined as a party to the proceedings, had been given adequate notice and a reasonable opportunity to be heard before the Tribunal made its findings against him.

The Court of Appeal reasoned that the Tribunal had erred by failing to serve the Claimant with notice of the proceedings as required by statute, and by not providing him with a reasonable opportunity to present his case. This failure to adhere to procedural requirements amounted to a denial of procedural fairness. Consequently, the Court allowed the appeal, setting aside the Master's judgment and the Tribunal's decision as against the Claimant. The matter was remitted to the Tribunal for a fresh hearing and determination according to law.

Orders

Orders of the court

(1) Grant the Claimant an extension of time within which to appeal from the judgment of the Master in the Common Law Division. (2) Grant leave to appeal and direct that the Notice of Appeal be filed within 7 days. (3) Allow the appeal to this Court and set aside the judgment and orders of the Master. (4) In lieu of the orders of the Master, order: (a) that the decision of the Consumer Trader and Tenancy Tribunal dated 9 August 2004 in proceedings No MV 04/20472 be set aside as against the Claimant; and (b) that the matter be remitted to the Consumer Trader and Tenancy Tribunal to be heard and determined according to law. (5) Order the Opponents to pay the Claimant's costs of the appeal and the proceedings before the Master, but have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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