Maconachie v Kullenberg

[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

GILES JA
McCOLL JA
BASTEN JA

Wednesday, 31 August 2005

Peter Robert MACONACHIE v Frank Pierre KULLENBERG & ORS

Judgment

1 GILES JA: I agree with McColl JA.

2 McCOLL JA: The Claimant seeks leave to appeal from a decision of Master Malpass on 30 November 2004, refusing to extend the time for filing a summons to appeal from a decision of the Consumer Trader and Tenancy Tribunal. The Tribunal had found Peter Maconachie Pty Ltd (the “company”) and the Claimant, a director of that company, liable to pay damages to the Opponents for breach of the Fair Trading Act 1987 in respect of a sell and buy back contract in relation to a motorhome.

3 The application for leave to appeal and the appeal were heard concurrently.

Background

4 On 29 May 2001 the Opponents, Frank and Elaine Kullenberg, purchased a Winnebago Motorhome (“the vehicle”) for $215,800 from the company. The contract for the purchase of the vehicle bore the handwritten words “GTEE BUY BACK OF $215,000.00 UP TO 2 YEARS”. The Opponents financed the purchase by trading in a motorhome and taking a loan of $105,800 from Esanda Finance Corporation Ltd. The loan from Esanda (both principal and interest) was payable on 16 November 2003. The Opponents were to finance that repayment from the guaranteed buy-back price. The vehicle was delivered to the Opponents on 11 October 2001.

5 In 2003 the Opponents were unsuccessful in their attempt to require the company to honour the buy-back provision. They sold the vehicle themselves on 16 March 2004 for $198,000.

6 On 23 April 2004 the Opponents sought an order in the Tribunal that the company pay them the sum of $21,176.32, the difference between the buy-back price of $215,000 and the amount for which they sold the vehicle plus costs and expenses. The application to the Tribunal was an application against the company alone. It identified the dispute as “Dealer breach of contract”. On 29 June 2004 the Opponents amended their claim to include a claim for $3,978.98 on account of interest.

7 The Opponents’ application was heard on 9 August 2004. The company was represented at the hearing by a solicitor. In the course of the hearing the Opponents raised the issue that, should the Tribunal make an order against the company, the order might not be satisfied. They asserted that the company had no assets.

8 According to an affidavit sworn by Ms Longbottom, the solicitor who appeared for the company before the Tribunal, the following exchange took place:

“11. During the hearing the Chairperson said words to the effect ‘Who is your client? Do you represent Peter Maconachie Pty Limited, the corporate entity, or Peter Maconachie?’ I replied with words to the effect ‘I represent Peter Maconachie Pty Limited, the corporate entity only’.

12. During the hearing Mr Frank Pierre Kullenberg said words to the effect, ‘My expectation is that if an order is made against the company it is unlikely that we will see the money. This is because at the last hearing Peter Maconachie indicated that the company was being wound up and had no assets’.
13. The Chairperson said words to the effect, ‘There may be other ways to make Peter Maconachie personally liable, my concern however is with the other person involved in the sale’.
14. The Chairperson said to me, ‘Is there anything you have to say about this issue?’ I replied with words to the effect, ‘Peter Maconachie is not a respondent to the application, the only respondent is Peter Maconachie Pty Limited’.
15. The Chairperson said words to the effect, ‘That is correct, but I could always amend the application’.”

9 According to a Notice of Order dated 12 August 2004, on 9 August 2004 the Tribunal ordered that:

“1. The application is amended to include as a respondent Peter Maconachie.
2. The Tribunal orders that Peter Maconachie Pty Limited & Peter Maconachie, jointly and severally, are to pay to Frank Pierre & Elaine Ann Kullenberg the sum of $25,000 being $21,176.40 short fall on return of vehicle and $3,823.68 additional interest.”

10 On 10 August 2004 the solicitors for the company requested a copy of the decision made by the Tribunal and a statement of reasons for the decision.

11 On 16 August 2004 the solicitors sent a further letter asking for a statement of reasons. The Tribunal acknowledged receipt of that letter on 19 August 2004. On 10 September 2004 the solicitors sent a further letter requesting a statement of reasons as a matter of urgency. On the same day the solicitors wrote another letter to the Tribunal advising they now represented the Claimant. They asked the Tribunal to vacate the order against the Claimant because he had not received notice of his joinder to the proceedings before the orders were made. The letter asserted the orders were “void ab initio for denial of natural justice”.

The Tribunal’s decision

12 On 15 September 2004 the Tribunal forwarded a statement of reasons for its decision to the Claimant’s and the company’s solicitors. The cover sheet identified the Opponents as “the applicants” and the company as the respondent. It described the application as “Payment of balance of moneys due under contract”, but identified the issues as “Contract term, deceptive and misleading conduct”. It set out the orders made on 9 August 2004, (adding to order 2 the words “by no later than 30/8/04”). The reasons relevantly stated:

“ APPLICANTS’ EVIDENCE

The Applicants said that this was the second “Winnebago” which they had purchased from the First Respondent. The contract was drawn up by the Respondent’s salesperson. The Applicants said that, as they had dealt with him previously, they negotiated with P Maconachie personally for the Respondent to buy back the vehicle at the end of two years for $215,000.00. The Applicants said that this was a precondition to their entering the contract to purchase the vehicle.

The Applicants asserted that, in or around July, 2002, they suggested to the First Respondent that they return the vehicle before the expiration of the two year period. The Applicants asserted that P Maconachie told them that the vehicle would only be repurchased at the guaranteed buy back price if it was returned at the end of the two year period.

The Applicants said that they had heard that the First Respondent was going out of business and contacted P Maconachie to discuss the earlier return of the vehicle. The Applicants said that P Maconachie confirmed that he was selling the business, but that nonetheless would honour the buyback arrangement.

Following discussions between the parties, P Maconachie agreed to sell the vehicle from his dealership at Nowra. He took possession of the vehicle on 17 April 2003 and returned it to Nowra.

The Applicants said that they believed that the dealership had been sold to the Holden dealership at Bomaderry, known as Country Winnebago, possibly in April 2003.

By October, 2003, the Applicants said that the vehicle had not been sold, and, concerned by their obligations to the finance company, undertook to arrange a private sale of the vehicle.

The vehicle was finally sold by the Applicants on 16 March, 2004, for $198,000.00.

The applicants gave evidence of the lengths to which they went to expedite the sale of the vehicle. They said that they had incurred considerable expenses in so doing and for which they seek reimbursement from the Respondent.

RESPONDENTS CASE

The First Respondent was represented by Ms Leadbottom, solicitor.

The First Respondent tendered no documentary evidence and made no submissions at the hearing.

The Solicitor for the First Respondent did not take issue with the Tribunal’s joinder of P Maconachie as Second Respondent.

FINDINGS

The Applicants’ evidence was uncontested, and I have no hesitation in accepting their version of events.

The relevant term of the contract states

“GTEE BUY BACK OF $215,000=00 UP TO 2 YEARS.”

In plain terms, this means that the First Respondent guaranteed to the Applicants that it would purchase the vehicle from them at any time during the two year period after the date of the contract, for $215,000.00. Simply, the Applicants were to return the vehicle at any time within the two year time frame, and the First Respondent would pay the applicant $215,000.00.

However, it appears that when the Applicants sought to return the vehicle in April, 2003, the First Respondent told them that he was ill, but that he still owned the dealership and that he would respect this contractual obligations. There is no evidence that the Second Respondent had any intention of causing his corporation to pay the agreed sum and such evidence as there is points to the contrary.

Perhaps foolishly, and in an attempt to mitigate their loss, and to assist the First and the Second Respondents, the Applicants offered to take the vehicle and try to sell it themselves.

The only finding that the Tribunal can make on the evidence before it is that the First and Second Respondents had no intention of ever fulfilling its obligation to buy back the vehicle, that such representation was false, and that it was made merely as an inducement for the Applicants to enter into the contract to purchase the vehicle.

Further, the representation was, at all relevant times, made by one of the directors of the Respondent, P Maconachie…. The Second Respondent, P Maconachie, took possession of the vehicle at around the same time as he apparently sold the business….
On my reading of the terms of the contract, the Applicants were entitled to exercise the buy-back clause in the agreement in April, 2003. This should have involved a transfer of the vehicle to the First Respondent, at the same time as a payment by the First Respondent to the Applicant of $215,000.00.

It therefore follows that the Applicants are entitled as damages to payment of $215,000.00, in April 2003. …

I find that the First Respondent breached Sections 42, (1), 43(1) and 44 of the Fair Trading Act. I find that the Second Respondent has himself breached Section 62 of the Fair Trading Act in aiding and abetting these breaches by his Corporation and is liable to the Applicants in damages as claimed pursuant to Section 68 of the Fair Trading Act.

In these cases, the jurisdictional limit of this Tribunal is $25,000.00. The applicants have abandoned the excess.” (emphasis added; spelling and expression as in original)

The reference to “Ms Leadbottom” was an erroneous reference to Ms Longbottom.

13 On 21 September 2004 the solicitors wrote to the Registrar of the Tribunal complaining that, in addition to the matters raised in their 10 September letter, the Tribunal had decided the claim against the Claimant on the basis he had aided and abetted the company’s breach of the Fair Trading Act. The letter complained that the Opponents’ claim had not been based on a breach of the Fair Trading Act, and, further, that the facts did not demonstrate that the Claimant “knew the essential facts to be established to prove the contravention”. They again complained that the Claimant had been denied procedural fairness. They complained that the Claimant had received no notice of his joinder before the orders were made. They referred to cll 25 and 28 of the Consumer, Trader and Tenancy Tribunal Regulation 2002 (the “2002 Regulation”). They pointed that the company’s representative, who appeared at the hearing, had had no instructions to appear for the Claimant and had not sought leave to do so. They contended that because he had had no notice of his joinder, the Claimant had been deprived of a reasonable opportunity to present his case. They referred to cl 35 of the 2002 Regulation, although they clearly intended to refer to s 35 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the “CTTT Act”). They submitted that the orders made by the Tribunal were void ab initio as a denial of natural justice.

14 On 27 September 2004, the Deputy Chairperson of the Tribunal wrote to the solicitors advising he was unable to intervene in the matter and that the “presiding member is not prepared to consider your application to vacate the orders made on 9 August 2004”.

The Supreme Court proceedings

15 On 8 October 2004 the Claimant filed a summons in this Court seeking, relevantly, an order that the time for the commencement of his appeal be extended and an order that the Tribunal’s decision be set aside as far as it affected him. On 30 November 2004, the Master dismissed the summons.

16 That application for an extension of time (see SCR Pt 51A r 3(1)) proceeded on the premise that the “material date” for the purposes of the appeal was 9 August 2004 and that the 28 day time limited for an appeal to this Court had, therefore, expired approximately a month before the summons was filed: see SCR Pt 51A rr 2,3 and generally Italiano v Carbone [2005] NSWCA 177 at [50] – [55]. The Opponents opposed the application to extend time and the claim for principal relief.

17 An appeal lay to the Supreme Court against a decision of the Tribunal with respect to a matter of law: see s 67 of the CTTT Act. Proceedings in the Common Law Division could also have been brought pursuant to s 65(3)(b) of the CTTT Act, which enables a court to grant relief or a remedy by way of a judgment or order in the nature of prohibition, mandamus, certiorari or other relief where a party had been denied procedural fairness in relation to the hearing or determination of the matter. As I later explain if the proceedings were brought pursuant to s 65(3)(b), no question of an extension of time or leave to appeal arose.

18 The Claimant relied on an affidavit sworn by Ms Longbottom, who was employed by Marriott Oliver. She annexed the correspondence I have outlined to her affidavit. She said that “no leave was ever given by the Tribunal for a legal representative to appear on behalf of Peter Robert Maconachie” and that prior to the hearing before the Tribunal, that firm had not had instructions to appear before the Tribunal for the Claimant. She set out the exchange to which I have already referred and said that after the Member’s last statement, “there was no further discussion at the hearing in relation to amending the application”. She said that the claimant was not given notice that he was to be made a party to the proceedings at any time before the orders were made by the Tribunal and that he was not given a reasonable opportunity to present his case before the Tribunal.

19 The Master noted that “a bare minimum of material” was placed before him and commented (at [9]), “[t]he paucity of the material may of itself suffice to lead to a dismissal of the summons”. He referred to the documents annexed to Ms Longbottom’s affidavit and the account she gave of the dialogue concerning the Claimant during the hearing and commented (at [12]) that he did not “find this material particularly helpful”.

20 He then said:

“15 When the order was made has been left unclear. It may be that the order was made at the conclusion of the hearing. However, what material there is reveals that the question of joinder came up for discussion at some unidentified stage during the hearing. This is what appears from the affidavit of Ms Longbottom. It was supported by what was said on behalf of the defendants from the bar table. Indeed, what has been said on behalf of the defendants suggest that some considerable discussion of the matter took place during the hearing. It seems that matters such as the winding-up of the company and the stripping of its assets probably formed part of the discussion.

16 It appears that the plaintiff was the person who negotiated the sale of the vehicle. He was one of the directors of the company. It appears that he was joined as a party because of fears that the company lacked the assets to satisfy any order made against it.


17 The reasons disclose that the company tendered no documentary evidence and made no submissions in the proceedings before the Tribunal. The reasons also record that Ms Longbottom did not take issue with the joinder of the plaintiff as a second respondent.

18 The material suggests that the plaintiff ran the business of the company and had the daily conduct of its affairs. It seems to have been the corporate structure which was used for the purposes of a business carried on by him. It would appear that he gave the instructions to Ms Longbottom for the purposes of the proceedings before the Tribunal. He was before the Tribunal when directions were given. Although he was not present at the hearing itself, it is said that he was at home (it is said that he was having health problems) and that he lived but five minutes away from where it was heard. He was contactable on that day (he was notified of the orders).

19 Ms Longbottom had notice of what might happen. It was open to her to take whatever steps she considered to be necessary to deal with the joinder question and any potential orders (inter alia, she could have applied for a short adjournment to enable her to get instructions from the plaintiff and she could have appeared for him and made submissions on his behalf). Instead, she appears to have done nothing and allowed the joinder and order for payment of money to be made without opposition.

…

21 In determining whether or not there has been a denial of procedural fairness, the task for the court is to look at the particular circumstances of the case before it. Procedural fairness is a flexible concept. Each case can be expected to turn on its own circumstances. The onus rests with the plaintiff to demonstrate entitlement to relief.

22 On the material before me, I am not satisfied that there has been a denial of procedural fairness in this case. In my view, a reasonable opportunity was had to do whatever was necessary to protect the interests of the plaintiff before the Tribunal. The orders were made because advantage was not taken of the opportunity that was had. In these circumstances, it would be futile to grant an extension of time for the filing of the summons .

23 The supporting affidavit does not specifically address the matter of the failure to file the summons within time. However, it is known that Marriott Oliver continued to act after 9 August 2004 and formally received instructions to act for the plaintiff on 10 August 2004. Despite this, the summons was not filed until 9 October 2004. It has been said that the delay was caused by a decision to consider the reasons prior to bringing the appeal. I find that unpersuasive. The reasons were sought on behalf of the company. The grounds on which the appeal has been brought must have been known to the plaintiff and his legal advisers since 9 August 2004. The reasons afforded no utility to the case that has been litigated on behalf of the plaintiff.

24 It may be that the solicitors chose to delay the bringing of an appeal until the Tribunal had responded to their application to vacate the orders. Whatever brought about the delay, in my view it has not been adequately explained. I am not satisfied that the plaintiff has demonstrated an entitlement to an extension of time.

25 The summons is dismissed. The plaintiff is to pay the costs of the summons.” (emphasis added)

21 The Master also said that the Claimant had not adequately explained the “delay” in commencing the Supreme Court proceedings. He referred only to Ms Longbottom’s affidavit in that respect. It appears that, in addition to that affidavit, Ms Longbottom had filed a statement (presumably as required by SCR Pt 51A r 5) at the time the proceedings were commenced which explained that the “delay” was caused by waiting for receipt of the Tribunal’s reasons and their consideration in order to obtain instructions as to whether to appeal.

22 The Master did not deal with the Claimant’s complaint that the Tribunal’s reliance on the Fair Trading Act in its reasons also constituted a breach of the rules of procedural fairness, although it is common ground that that issue was raised before him.

The Court of Appeal proceedings

23 On 13 January 2005 the Claimant’s solicitors filed a holding summons for leave to appeal. On 14 April 2005 they filed an ordinary summons for leave to appeal. The summons also sought an order granting an extension of time for serving the summons until 8 February 2005 pursuant to SCR Pt 51 r 4(6). The extension was required because, although the holding summons was filed within time, it was not served on the Tribunal until 2 February 2005 and on the Opponents until 7 February 2005.

24 The Claimant asserts that leave to appeal should be given, in short, because of the gravity of the denial of procedural fairness involved in the Tribunal’s decision.

Legislative Framework

25 Section 28 of the CTTT Act relevantly provides:

28 Procedure of Tribunal generally


(1) The Tribunal may, subject to this Act, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand:

(a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings.” (emphasis added)

26 Section 32 of the CTTT Act provides:

(1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice.
(2) Any such amendment may be made:
(a) at any stage of the proceedings, and
(b) on such terms as the Tribunal thinks fit,
but may only be made after notifying the party to whom the amendment relates.

(3) If a provision of this Act or the regulations is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal otherwise determines.

(4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.” (emphasis added)

27 Section 35 of the CTTT Act provides:

“The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity:

(a) to call or give evidence and otherwise present the party’s case (whether at a hearing or otherwise), and

(b) to make submissions in relation to the issues in the proceedings.”

28 Clause 28(1) of the 2002 Regulation provides:

“(1) If the Tribunal is of the opinion that a person has a sufficient interest in the dispute to which an application to the Tribunal relates but the person has not been served with notice of the application, the Tribunal may make an order directing that the person be joined either as an applicant or as a respondent, as appears to the Tribunal to be appropriate, and notice of the proceedings is to be served accordingly.”

Claimant’s submissions

29 The Claimant essentially advances two grounds of appeal. First, that the Master erred in not finding that the Tribunal denied the Claimant procedural fairness. Secondly, that he erred in not granting the Claimant an extension of time to file the summons.

30 The Claimant submits that the Tribunal denied him procedural fairness because:

(a) he was not given notice that he was to be joined;

(b) he was not given sufficient opportunity to oppose his joinder;

(c) the findings and orders pursuant to the Fair Trading Act were made without an amendment to the proceedings claiming such relief;

(d) the Tribunal made a serious finding, tantamount to fraud, against him without giving him an opportunity to be heard.

31 The Claimant also submits that there was no evidence to support the Tribunal’s finding that he was an accessory to the company’s breach of the Fair Trading Act. That is a complaint of error of law which was not the subject of the claim for relief. Having regard to the manner in which the Claimant’s application can be dealt with, it is unnecessary to consider this matter further.

32 Finally, the Claimant complains that the Tribunal’s approach to the question of whether the company had sufficient assets to meet any order shows that at the time the question of joinder was being considered, the Tribunal had already determined facts adverse to the company and him and demonstrated bias.

33 The Claimant submits that the Master erred in concluding he had a reasonable opportunity to protect his interests before the Tribunal because of Ms Longbottom’s presence. He argues that the Master failed to have regard to the fact that the solicitor had no instructions to act on his behalf so that it was not up to her to seek an adjournment of the proceedings. Rather, the Claimant contends, it was a matter for the Tribunal to adjourn the proceedings if he was to be joined and to reconstitute the hearing after he was given notice of the allegations against him. He also submits that a reconstituted hearing should have been presided over by a different Tribunal member as the original member had formed an adverse view of him.

34 The Claimant also complained that the Master failed to deal with his complaint that he was denied procedural fairness because of the Tribunal’s reliance upon the Fair Trading Act.

35 The Claimant submits that the Master erred in refusing to extend the time for filing the summons. He challenged the Master’s finding “[t]he grounds which the appeal has been brought must have been known to the Claimant and his legal advisor since 9 August 2004”. He argued there he could not know the basis upon which the order was made against him until he saw the Tribunal’s reasons on or about 15 September 2004.

Opponents’ submissions

36 The Opponents oppose the Claimants’ application for leave to appeal. They submit, in their fair and carefully prepared written submissions, that the Master did not err in law on the ground of procedural fairness and that he was correct not to consider the issue under the Fair Trading Act 1987.

37 They accept that the Claimant had a right to be heard, but argue, in substance, that the Tribunal and the Master were correct to treat Ms Longbottom as the Claimant’s representative. This was because the Claimant was, in substance, the company’s controlling mind. They contend “[t]he controlling director of Peter Maconachie Pty Ltd and Peter Maconachie, the person, are one and the same and cannot be separated”. They also assert that Ms Longbottom was in contact with the Claimant on the day of the hearing as, at one stage, the proceedings were interrupted so she could establish why he had not appeared for the company (as he had at an earlier directions hearing) and returned to advise the Tribunal he was having chemotherapy that day. (It is not clear that there was any evidence of this before the Master.)

38 The Opponents say the Master did not err in failing to consider the Claimant’s complaint about the Fair Trading Act. They submit that the Claimant sought to introduce that issue on the morning of the hearing before the Master, without notice and contrary to the statement of grounds of appeal.

39 They submit that the appeal to this Court should be limited to the Claimant’s two grounds of appeal in the court below which were, essentially, his complaints about joinder and that he was deprived of a reasonable opportunity to present his case or to make submissions in relation to the issues in the proceedings.

Consideration

40 The Opponents’ concern, expressed during the Tribunal hearing, that the company had no assets to meet any order appears to have been treated by the Tribunal as an application to join the Claimant personally. The Claimant accepts that that is an appropriate characterisation of that exchange. It was open to the Tribunal to entertain that application, albeit in the Claimant’s absence. However cl 28 of the 2002 Regulation required that if he were joined as a party, notice of the proceedings should have been served on him. The Claimant was not served personally with notice of the proceedings prior to the orders being made.

41 The proceedings before the Tribunal and the Master on the joinder issue were clearly flawed by their failure, respectively, to appreciate that when Ms Longbottom said she represented “Peter Maconachie Pty Limited, the corporate entity only”, she meant it, as a matter of both fact and law.

42 The Tribunal commented in its reasons that “[t]he Solicitor for the First Respondent did not take issue with the Tribunal’s joinder of P Maconachie as Second Respondent”. That may be correct as a statement of fact, but to the extent it impliedly asserts that Ms Longbottom had a right, let alone an obligation, to take up the cudgels on the Claimant’s behalf when she had made it plain to the Tribunal he was not her client, demonstrates a manifest failure to appreciate the significance of her statement. The Tribunal appears to have succumbed to the legal error, also apparent in the Opponents’ submissions, that because the company appeared to be the Claimant’s alter ego, Ms Longbottom’s appearance on the company’s behalf was tantamount to an appearance for him.

43 This was a fallacy (the representation fallacy). A company is a separate legal entity from its directors. The Tribunal misdirected itself because of the representation fallacy that, through Ms Longbottom’s presence, the Claimant had notice of the proceedings. That was clearly wrong.

44 The Master perpetuated the representation fallacy. He accepted Ms Longbottom’s failure to object to the Claimant’s joinder had the significance the Tribunal attached to her silence. He also assumed it was open to Ms Longbottom to take whatever steps she considered to be necessary to deal with the joinder question and any potential orders, but observed, critically, that she appeared “to have done nothing and allowed the joinder and order for payment of money to be made without opposition”.

45 In Italiano v Carbone Mr Italiano received a document purporting to make him a party to proceedings in the Tribunal that Mr Carbone had brought against his company. He was present at the hearing. The Tribunal ordered him to pay $74,500 to Mr Carbone without making an order joining him as a party.

46 Section 48Q of the Home Building Act 1989, which was relevant for the purposes of that case, provided that:

“If, at any time before or during proceedings before it in relation to a building claim, the Tribunal is of the opinion that a person should be joined as a party to the proceedings, the Tribunal may, by notice in writing given to the person or by oral direction given during proceedings, join the person as a party to the proceedings.”

47 Both Spigelman CJ and Einstein J held that the Tribunal’s failure to comply with s 48Q invalidated its decision. Spigelman CJ concluded (at [9]) that he was “unable to identify anything capable of answering the statutory description in s 48Q”. He said:

“11 …[P]ersons who are subject to orders of this character are entitled to at least some minimum compliance with the formalities set down by the legislative scheme. Here there was, in effect, no compliance at all.

12 The Tribunal is a body which has been granted important powers, including powers which are not limited to small disputes in which speed and economy are entitled to determinative weight. It has a jurisdiction with respect to building claims up to $500,000 and the amount awarded in this particular case is almost double the jurisdiction of the Local Court. There are real limits to the extent to which this Court should countenance the Tribunal ignoring the basic requirements for its proper functioning, as laid down by the Parliament directly, or indirectly through Regulations which are capable of being disallowed by Parliament.

13 In this case the Tribunal proceeded with a level of informality which Parliament did not intend to countenance. Indeed a level, in my opinion, that Parliament intended to lead to invalidity of any decision reached in this manner. (See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93].)

14 Reliance was placed on s 32(3) CTTT Act. This is in the traditional form of an irregularity provision which has been a feature of legislation creating courts since the Judicature Acts. (See e.g. Supreme Court Act 1970, s81; District Court Act 1973, s159; and see the analysis in Rust v Barnes [1980] 2 NSWLR 727 at 729-731 and Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 at 752-753.)

15 Section 32 of the CTTT Act appears to be directed to the Tribunal and the Tribunal only. Indeed, the concluding words of subs (3) and the introductory words of subs (4) of s 32, may suggest that the section does not bind the Supreme Court in any manner, whether on appeal or exercising its supervisory jurisdiction. Nevertheless, the effect of a provision of this character is to render non-compliance voidable rather than void as may once have been the case.

16 It is by no means clear to me that s 32(3) applies under any circumstances if s48Q were the requisite power. It does, however, apply to a failure to comply with the Regulations for a formal application to be made and, accordingly, could apply to the alternative manner in which the Respondent states its case on the issue of joinder.

17 Provisions of this character must be construed widely and generously. (See e.g. Harkness v Bell’s Asbestos & Engineering Ltd [1967] 2 QB 729 at 735.) Nevertheless, the issue remains whether or not a matter which, by statute, is to be treated as an irregularity, should be avoided pursuant to the clear reservation of a discretion to do so in provisions of this character. (See generally Vickers v Mayne (Unreported, Supreme Court of Western Australia, Full Court, Kennedy, Franklyn and Walsh JJ, 17 July 1998).”

48 Einstein J concluded (at [169] – [171]) that compliance with s 48Q was mandatory and that an act done in breach of s 48Q should be invalid. He concluded that failure to comply with that requirement meant the Tribunal did not discharge its statutory function.

49 Although nothing turns on it for present purposes, it should be noted that s 32(3) of the CTTT Act, which is referred to in the judgment of the Chief Justice (at [14]-[16]), is in similar (though not identical) terms to s 81(3) of the Administrative Decisions Tribunal Act 1997. Each provision provides that certain failures to comply with the requirements of the respective Acts are to be “treated as an irregularity” and are not to “nullify” the proceedings. The effect of the provision in the Administrative Decisions Tribunal Act was given more extensive attention by the Court in Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261 at [83] ff (Spigelman CJ), [156]-[178] (Mason P) and at [190]-[198] (Tobias JA). The scope of s 32(3) of the CTTT Act does not govern the outcome of the present case, because it does not override basic requirements of procedural fairness.

50 Basten JA concluded in Italiano (at [74] – [79]) that in the light of s 28 of the CTTT Act, failure to comply with s 48Q did not render the proceedings a nullity in relation to the person intended to be joined but not expressly joined in circumstances where what was not done was, or should have been, understood by those present at the Tribunal hearing and participating in its proceedings.

51 However, in his Honour’s view (at [115]) failure to comply with the ss 28(2) and 35 requirement in the CTTT Act to give a party a reasonable opportunity to be heard, should be treated as invalidating the conclusion of the Tribunal.

Joinder of the Claimant: conclusion

52 The majority decision in Italiano that failure to comply with a statutory provision concerning joinder invalidated the decision gives strong support for the Claimant’s argument concerning the Tribunal’s failure to comply with cl 28 of the 2002 Regulation.

53 It is unnecessary to decide whether failure to comply with that provision should be treated as giving the Court a discretion to grant relief (Spigelman CJ) or as mandatory so that non-compliance invalidated the Tribunal’s decision (Einstein J). On either basis the Tribunal’s failure to require notice of the Claimant’s joinder to be served on him was a breach of cl 28 which, in my view, invalidated its decision.

Fair Trading Act claim: conclusion

54 Further, s 35 of the CTTT Act required the Tribunal, once the Claimant was joined, “to ensure that [he] was given a reasonable opportunity … to call or give evidence and otherwise present” his case and “to make submissions in relation to the issues in the proceedings”. The Tribunal gave the Claimant neither of these opportunities. This leads to the next error on the part of the Tribunal: the reliance on the Fair Trading Act against the company (which is not a party to these proceedings) and, in particular, on its accessorial liability provisions against the Claimant.

55 It is common ground that the Opponents did not rely on the Fair Trading Act before the Tribunal. The Opponents expressly so asserted, but under the apparent misunderstanding that the source of their rights, as found by the Tribunal was the CTTT Act, not the Fair TradingAct. That is incorrect. The CTTT Act gave the Tribunal power to determine their claim, but it was necessary that the claim be founded on a legal entitlement such as a breach of contract or a contravention of the Fair TradingAct.

56 Despite the issues identified on the cover sheet of the Tribunal’s reasons (which included a reference to “contract term”) the Fair TradingAct was the sole basis for the finding against the Claimant. The failure to give him notice he had been joined in the proceedings, let alone notice that the case was to be decided against him as an accessory pursuant to the Fair Trading Act, deprived him of an “opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment”, and of “an opportunity to make representations” see Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [36], [37] per Gleeson CJ. Both the common law, and s 35, required that in order to accord the Claimant procedural fairness, he “be informed of the case against him [and] be given [a reasonable] opportunity to answer it”: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ.

57 The Tribunal’s reliance on the Fair Trading Act as a basis of its order against the Claimant was a breach of the rules of procedural fairness requiring him to be given an opportunity to be heard. This failure to give the Claimant an opportunity to present his case means the Court must intervene: Sullivan v Department of Transport (1978) 20 ALR 323 at 342 (25) per Deane J.

Relief

58 It is not entirely clear whether the proceedings in the Common Law Division constituted an appeal under s 67 of the CTTTAct against a decision of the Tribunal “with respect to a matter of law” or whether they sought relief in the nature of certiorari under s 65(3)(b) on the basis that the Tribunal had no jurisdiction to make an order against the Claimant or that it had denied him procedural fairness. The Claimant asserted that relief was sought on both grounds and, consistently with that view, the Tribunal was joined as a party to the proceedings, a course which was inappropriate unless prerogative relief was sought. This uncertainty appears, however, to have pervaded the proceedings below. If relief was sought by way of certiorari, there was no question as to a failure to commence proceedings within time. Further, although the summons sought not only an extension of time, but leave to commence the proceedings, no such leave is presently required under s 67(2), as the rules of the Supreme Court did not require such leave. No leave is required to institute proceedings under s 65(3) of the CTTT Act.

59 If an error of the kind provided for by s 67(1) is identified, the grant of relief is not discretionary. (As to the nature of such an error, see generally Grygiel v Baine [2005] NSWCA 218 at [26]-[29].) On the other hand, if the relief sought is by way of prerogative relief, the remedy is discretionary: see, eg, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82. Again, the importance of identifying the nature of the process invoked is demonstrated.

60 The application to the Court should be regarded as an application for relief in the nature of certiorari, although relief was not claimed in that form. If, however, it be regarded as an appeal and either an extension of time in which to seek leave to appeal and leave to appeal were necessary, in my view, such relief should be granted, and should have been granted by the Master. The substantive case raises serious questions concerning the Tribunal’s exercise of its powers and discharge of its obligation to accord procedural fairness.

61 Regarding the application as an application for relief in the nature of certiorari, one matter, which may be relevant to the withholding of discretionary relief, is the availability of a convenient and satisfactory remedy in the Tribunal. Such a remedy, by way of rehearing, is provided by s 68 of the CTTT Act.

62 Section 68(2) enables a party in any proceedings that have been heard and determined by the Tribunal who may have suffered a substantial injustice to apply to the Chairperson to have the completed proceedings reheard by the Tribunal in the manner and within the time prescribed by the regulations.

63 In the present case, there is no doubt that the Claimant seeks to assert that he has suffered “a substantial injustice” for the purposes of s 68(2). Given the amount in dispute and the undoubted cost of proceedings in the Common Law Division and in this Court, it is unfortunate that the statutory procedure was not availed of. In an appropriate case, that fact might provide a basis upon which the Court would refuse relief. The existence of review by an Appeal Panel of the Administrative Decisions Tribunal was relied on by Barrett J in refusing relief in NSW Breeding and Racing Stables Pty Ltdv Administrative Decisions Tribunal (NSW) (2001) 53 NSWLR 559 at [49]-[53]. The unnecessary expense involved in appeals and applications for review by the Court should be discouraged by declining relief where appropriate.

64 This, however, is not an appropriate case in which to take that course. As noted above, after receiving instructions from the Claimant, the solicitors wrote promptly to the Registrar of the Tribunal seeking to have the orders against him vacated. They raised in substance the primary grounds on which he has succeeded in this Court. The Tribunal may have been misled in so far as the letter did not advert to s 68, was not addressed to the Chairperson, and was not in the form provided for under cl 22 of the 2002 Regulation. Nevertheless, one would have expected the Tribunal to have at least adverted to the possibility that s 68 was being invoked and to have invited the Claimant, through his solicitors, to clarify that matter and provide information in the necessary form. The Tribunal did not take that approach. Where an aggrieved party seeks, in a timely manner, to raise its concerns with the Tribunal, albeit in a manner which did not comply with the prescribed forms, it should not be denied relief from the Court where that is the only alternative relief available: see generally, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at [149]-[153] (McHugh J) and [215]-[222] (Kirby J).

Costs

65 The failure by the Tribunal both to follow statutory procedures as to joinder of parties prescribed by the CTTT Act and cl 28 of the 2002 Regulation and to accord the Claimant procedural fairness as prescribed by the CTTT Act was unfortunate; that the Tribunal failed to identify the possibility that it was being called upon to rehear the matter was also unfortunate. The statutory scheme of the CTTT Act should be well known to officers and members of the Tribunal. No doubt the solicitor for the Claimant, in writing to the Tribunal seeking to have the order vacated, also paid insufficient attention to the statutory scheme. In any event, the Claimant was entitled to seek relief in the Court and has been successful. The Opponents could have conceded the errors identified and agreed to a rehearing of the application in relation to the Claimant personally. Because they did not do so, they must bear the costs of the proceedings in the Common Law Division and in this Court.

66 Counsel for the Claimant accepted in the course of argument that the Claimant could not in fairness look to the Opponents for costs in excess of those which might be recovered under the Suitors Fund Act. This is an entirely appropriate approach, but is a matter to be dealt with between the parties. Although the Claimant has had success in setting aside the order made against him by the Tribunal, the matter is to be remitted to the Tribunal so that it can determine the claim before it according to law. The Claimant thus remains at risk of an adverse finding. The possibility that some compromise may be achieved without further costs being incurred is a matter which should be commended to the parties for their consideration.

Orders

67 The Claimant submitted that in the event that he was successful it would be futile to remit the proceedings to the Tribunal because s 68 of the Fair Trading Act did not provide a basis for the damages order which had been made against him. It is inappropriate to deal with that argument in the absence of evidence of the basis upon which the Opponents would seek to make that case before the Tribunal. The Claimant acknowledged as I have earlier noted that if he was successful, the Tribunal had not dealt with the Opponent’s application to join him according to law. It is appropriate in such circumstances that the matter be remitted to the Tribunal for that application to be dealt with properly.

68 As there is, in my view, force in the Claimant’s submission that a fair-minded lay observer might reasonably apprehend that the Tribunal member who heard the original proceedings might not bring an impartial mind to their resolution, they should be heard before a differently constituted Tribunal.

69 I propose the following orders:

(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.

70 BASTEN JA: I agree with McColl JA.

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31/08/2005 - Para 57 the word "in" deleted. - Paragraph(s) 57