Marshall v Consumer Trader Tenancy Tribunal

[2005] NSWSC 576

CITATION:	Marshall & Anor v Consumer Trader Tenancy Tribunal & Ors [2005] NSWSC 576
HEARING DATE(S):	17/06/2005
JUDGMENT DATE :	17 June 2005
JUDGMENT OF:	Hoeben J at 1
DECISION:	Summons dismissed.

CATCHWORDS:	Appeal from Consumer Trader and Tenancy Tribunal - issue of law - absence of reasons - no issue of law able to be identified.
LEGISLATION CITED:	Consumer, Trader and Tenancy Tribunal Act 2001
PARTIES:	Andrew Marshall and Jenni Marshall - Plaintiffs Consumer Trader & Tenancy Tribunal - First Defendant Salvatore Papandrea - Second Defendant Rita Papandrea - Third Defendant
FILE NUMBER(S):	SC 30056/04
SOLICITORS:	Plaintiffs in person Submitting appearance by first defendant Submitting appearance by second and third defendants.

LOWER COURT JURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	04/15956
LOWER COURT JUDICIAL OFFICER :	D Sheehan, Tribunal Member

IN THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

HOEBEN J

Friday, 17 June, 2005

30056/04 – Andrew MARSHALL & ANOR v CONSUMER TRADER TENANCY TRIBUNAL & ORS

JUDGMENT

1 HIS HONOUR: The plaintiffs by way of an Amended Summons filed on 18 August 2004 appeal from a decision of the Consumer Trader and Tenancy Tribunal (the Tribunal) delivered on 20 May 2004. The plaintiffs appear for themselves. The first defendant has entered a submitting appearance. The second and third defendants have indicated they do not wish to participate in the proceedings.

2 The decision by the Tribunal in relation to which this appeal is brought was to the following effect:

(1) The plaintiffs were ordered to pay an amount of $273.42 to the second and third defendants.

(2) The Rental Bond Board was directed to pay the second and third defendants that amount out of rental bond monies, which it was holding on behalf of the plaintiffs.

(3) The plaintiffs’ cross-claim or claim for a set off in the sum of $126.50 was rejected because it was out of time (the payment having been made on 15 November 2003) and the second and third defendants gave evidence before the Tribunal that they had never received any notification of the claim.

3 Section 49 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the Act) provides:

“49(1) The Tribunal must, within time prescribed by the regulations, give notice of its decision in a matter that is the subject of proceedings to the parties in the proceedings. The notice must indicate that any party may, within fourteen days of receiving notice of the decision, request the Tribunal to provide a statement of reasons for its decision.
(2) Any party may, within fourteen days of receiving notice of the decision, request the Tribunal, in the manner prescribed by the regulations, to provide a statement of reasons for its decision. The statement must be provided within seven days after the request is made.
(3) The statement may be brief but must:
(a) set out the decision and the reasons for it and,
(b) set out the findings on any material question of fact and,
(c) refer to the evidence or any other material on which the findings of fact were based.”

4 The “Notice of Order” made on 20 May 2004 was sent to the plaintiffs at the address, which they had notified to the Tribunal as their correct address. The plaintiffs clearly received the “Notice of Order” because they applied for a rehearing by the Tribunal in a letter dated 24 May 2004.

5 No request for reasons seems to have been made by the plaintiffs to the Tribunal until 15 April 2005. Not surprisingly the member of the Tribunal, D Sheehan, who originally decided the matter, had barely any recollection of it by that time. In a document dated 12 May 2005 the Tribunal member tried to reconstruct the reasons which led to the finding in favour of the second and third defendants referred to above.

6 In the proceedings before me Mrs Marshall advised that she had requested that the Tribunal provide a statement of its reasons but that it had not done so. An oral request of this kind is not one, which is “prescribed by the regulations”. Such a request has to be in writing.

7 Leaving that aside, however, I am not satisfied that Mrs Marshall did make such a request to the Tribunal. A perusal of the documents attached to her affidavit filed with the Court on 20 July 2004 makes it clear that had there been a failure by the Tribunal to comply with a request of Mrs Marshall she would almost certainly have written to the Tribunal to complain of that fact. In the absence of any such correspondence, I am not satisfied that she did in fact make requests for a Statement of Reasons from the Tribunal, either orally or otherwise, until the letter of 15 April 2005.

8 What does emerge from the Tribunal member’s statement of reasons are the bare bones of the original claim. It seems that there was in existence between the plaintiffs and the second and third defendants, a lease of a residential property at 14 Nancy Place, Galston. The second and third defendants were the lessors and the plaintiffs were the lessees. The plaintiffs vacated the property on 11 March 2004. It seems that when the premises were vacated, there was outstanding an unpaid amount in relation to water rates for the premises. There was an outstanding amount of $196.98 for the period 17 October 2003 to 24 January 2004 and a further amount of $76.44 which covered the period 24 January 2004 until 11 March 2004 producing a total of $273.42.

9 The Tribunal member as of April 2005 was not able to provide reasons for the decision made on 20 May 2004. Accordingly this appeal has to proceed on the basis of a bare order without reasons. In my opinion the responsibility for the absence of reasons is that of the plaintiffs and no-one else. The reasons for the decision should have been applied for much earlier.

10 Following the making of the order by the Tribunal on 20 May 2004, the plaintiffs applied for a rehearing by letter dated 24 May 2004. By letter dated 23 June 2004 the Tribunal advised the plaintiffs that their application for a rehearing had been refused. The present proceedings were commenced on 20 July 2004 by way of an appeal from the decision of the Tribunal. An Amended Summons was filed on 18 August 2004 and that is the document upon which the plaintiffs currently rely.

11 The right to appeal from a decision of the Tribunal is set out in s67 of the Act.

“67(1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the Supreme Court against the decision.
…
(8) A reference in this section to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal.”

12 The Amended Summons seeks the following orders:

“1) APPEAL AGAINST DECISION OF TRIBUNAL WITH RESPECT OF MATTER OF LAW,
RTA, 61. 1,2,3a & 8.
2) SEEKING ORDERS, THAT THE FIRST DEFENDANTS PAY THE PLAINTIFF FOR:
(a) WATER USAGE (SEE RECEIPT),
(b) URGENT REPAIR (SEE ACCOUNT)
(c) REHEARING FEE (SEE RECEIPT)
(d) FILING FEE STATEMENT OF CLAIM.
(e) TIME TAKEN OFF WORK BOTH PLAINTIFF.
(f) TRAVEL, PARKING,TOLL FEES,
(g) PHOTO COPYING EXPENSES
(h) SERVICE FEES, ANY OTHER COURT FEES.
3) DAMAGES.
THE PLAINTIFF CLAIMS THAT THERE HAS BEEN A BREACH OF THE RULES OF NATURAL JUSTICE.”

13 The right of appeal provided by s67 of the Act is limited to a point of law. It is also implicitly limited to those matters which were before the Tribunal. The right of appeal does not entitle a plaintiff to raise new matters and seek to “piggyback” them as it were onto the appeal.

14 Accordingly as a preliminary matter item 3, that is the claim for damages, in the Summons must be rejected. The Court has no jurisdiction to deal with that matter. Accordingly, the claim in item 3 of the Summons is struck out.

15 In relation to item 2, the first two matters relating to water usage and urgent repair are the two substantive factual matters which were before the Tribunal. The remaining matters would seem to relate to costs to which the plaintiffs would be entitled if they are successful in their Summons. This was pointed out to the plaintiffs in the course of the hearing.

16 The complaint by the plaintiffs is that the claim for payment of the water account was wrongly made because they had already paid most of it, ie $197 in April 2004. There was a written submission to that effect, supported by documentation, forwarded to the Tribunal by letter dated 13 April 2004. They further assert that because they were obliged to pay for plumbing repairs, which were properly the obligation of the lessors, they were entitled to offset that amount against the balance of the water rates claim.

17 As indicated the matter proceeded before the Tribunal with Mr and Mrs Papandrea, the lessors, in attendance but without the presence of the plaintiffs. Clearly one or other or both of the Papandreas gave evidence in the proceedings. The Tribunal should have had before it the written submission and supporting documentation of the plaintiffs. For reasons not clear to me, and for reasons which the Tribunal member quite understandably could no longer recall twelve months later, that material which was put forward by the plaintiffs was rejected by the Tribunal or found not to be an adequate answer to the claim.

18 The finding by the Tribunal that the plaintiffs owed Mr and Mrs Papandrea the amount of $273.42 with its implicit rejection of the defence of payment of $197 is a finding of fact. It does not raise a question of law. Similarly the rejection of the setoff amount because it was out of time and had not been notified to the landlords was a factual finding.

19 Those factual findings are invulnerable to appeal to this Court unless the reasoning behind them discloses an error of law. There is no reasoning behind the decision which can be analysed or checked for error of law. As indicated, the fault for there being no reasons lies squarely with the plaintiffs and their failure to seek reasons in a timely manner. In that circumstance there is nothing which this Court can examine or peruse for the purposes of dealing with the appeal.

20 The attempted reconstruction by the Tribunal member is as follows:

“At this point in time it is entirely unclear to this member what was before me at the hearing on 20 May 2004, as the notes I usually make of the evidence are now not on the file, and there were no recording facilities at the venue at that time.
I can only recall, from the orders made, that the applicants must have given evidence that they had not received any payment for the water usage, when requested by them in their correspondence to the tenants dated 6 February and 6 March 2004, attached to their application.
It also seems clear that I considered the tenants’ correspondence of 11 May 2004 addressed to the Chairperson of the Tribunal which contained in effect a claim for a setoff from the landlords’ claim in the sum of $126.50 for a plumber’s account dated 15 November 2003, addressed to the tenants. It appears the landlords gave evidence that they had not been notified of such a claim at the time or later.
…
Finally I note that the file now has on it a facsimile from the tenants dated and apparently received by the Tribunal registry on 13 April 2004, which contains amongst other correspondence an apparent copy of the post office receipt for payment of $197, a sum approximating the 19 February water usage account, and dated 11 April 2004.
In the absence of my notes and in view of the time delay to this request for reasons, it is not clear to me whether this was in fact on the file as at the date of hearing, and also due to the time delay, it is not possible to recall whether, if it was on the file, it was put to the applicant/landlords at the hearing. From my recollection, at least some of the file-notes on the separate clip, dated prior to the hearing, were not before me at the hearing.
It is indeed possible that not all file-notes and correspondence were before me at the hearing, as the file seems (quite properly) to have been absent from the registry a number of times prior to its eventual hearing, whilst adjournment requests and complaints by both parties were dealt with. I understand that, certainly whilst the file is in transit, even though it is Registry practice to place documents on files as soon as possible after receipt, correspondence and file-notes sometimes have to remain in a pending status and may not always return to the file at the instant of its return to the Registry.
The above is therefore the extent of the reasons for decision that can be given now.”

21 It is against that background that the plaintiffs bring this appeal.

22 When the need to identify a point of law was brought to their attention, Mrs Marshall articulated the question in this way. She said that the claim for unpaid water rates was bad because $197 of it had been paid and the written submission provided by the plaintiffs had attached to it a receipt to that effect. For the Tribunal to have reached the decision which it did, the member must have ignored the receipt or misunderstood it, or otherwise have failed to deal with it properly and therefore some error of law must have been involved.

23 The very nature of the submission indicates the difficulty which confronts the plaintiffs. They were not present at the hearing. Mr and Mrs Papandrea were. We do not know what use was made by the Tribunal of the receipt which was attached to the plaintiffs’ written submission. We do not know what answer was made by Mr and Mrs Papandrea if and when that receipt was drawn to their attention. In other words at this point in time we can only speculate as to what occurred at the hearing and what reasons motivated the Tribunal to reach the decision which it did.

24 As indicated there is simply no material available to enable the Supreme Court to decide whether there was some error of law in the reasoning process of the Tribunal. Accordingly the challenge to the finding by the Tribunal that the plaintiffs pay Mr and Mrs Papandrea the amount of $273.42 on the basis that it remained unpaid as at the date of the hearing must fail. For the same reason the claim for set-off must also fail.

25 The only possible point of law which might arise is the question of whether the fundamental principle of fairness was breached in that the plaintiffs were not given an opportunity to attend the hearing on 20 May 2004.

26 When I raised this matter with the plaintiffs, Mrs Marshall advised the Court that such a point was not being taken. She and her husband were well aware of the fact that the hearing was to take place on 20 May 2004. As was indicated in their written submission of 13 April 2004 (p 22 of the documents attached to Mrs Marshall’s affidavit) they could not afford financially to take time from work to attend to the Tribunal.

“7. We cannot financially afford to take time off work as we would lose $150 per day as casual, and $250 per day as sole trader. We don’t have a permanent job as work is our only income with two dependants. There is not much work for us.”

27 The plaintiffs therefore chose not to attend the hearing before the Tribunal on 20 May 2004 but to rely upon their written submission of 13 April 2004.

28 In those circumstances no question of denial of natural justice or unfairness arises on the basis that the plaintiffs were unaware of the hearing date before the Tribunal.

29 For the reasons stated above, the plaintiffs’ summons must fail.

30 The orders which I make are as follows:

(1) Summons dismissed.

(2) Each party to pay their or its own costs.

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