Middle East Group v Osman

[1999] NSWSC 377

CITATION:	Middle East Group v Osman & Anor [1999] NSWSC 377
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	10375/99
HEARING DATE(S):	29/3/99, 1/4/99, 21/4/99
JUDGMENT DATE:	23 April 1999
PARTIES :	Middle East Group Pty Limited t/as AMI Migrating Consultants (Plaintiff) Ali Mohamad Osman (1st Defendant) Consumer Claims Tribunal (2nd Defendant)
JUDGMENT OF:	Studdert J

LOWER COURT JURISDICTION:	Consumer Claims Tribunal
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:

COUNSEL :	F.P. Hanna (Plaintiff) In person (1st Defendant) Submitting appearance (2nd Defendant)
SOLICITORS:	Firmstone & Associates (Plaintiff) In person (1st Defendant) I.V. Knight (2nd Defendant)
CATCHWORDS:
ACTS CITED:	Consumer Claims Tribunals Act, 1987
CASES CITED:	Cameron v Cole (1943) 68 CLR 571 Hoskins v Van Den-Braak (1998) 43 NSWLR 290 Taylor v Taylor (1979-80) 143 CLR 1
DECISION:	See para 21

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Friday 23 April 1999

10375/99 MIDDLE EAST GROUP PTY LIMITED t/as AMI MIGRATING CONSULTANTS v ALI MOHAMAD OSMAN & ANOR

JUDGMENT
1 HIS HONOUR: Middle East Group Pty Limited is the plaintiff in these proceedings and has applied by way of summons for the following orders:
“1. An order that the order made on 7 September 1998 by the Consumer Claims Tribunal at Hurstville, NSW be quashed and set aside.

2. An order that the Consumer Claims Tribunal grant a re-hearing of the claim made by the Defendant, Ali Mohamad Osman.”

2 The plaintiff was not legally represented before this Court, but Mr Hanna, a director of the plaintiff, appeared. The defendant, Ali Mohamad Osman, appeared in person. I ordered that the Consumer Claims Tribunal be joined as a defendant and the matter was further adjourned to enable the opportunity for such joinder. Subsequently Mr Ellis announced his appearance for the Tribunal. Mr Ellis has returned on the listing of this matter today and has filed in Court a submitting appearance on behalf of the Tribunal. In these circumstances I have already indicated that I will proceed to deliver judgment forthwith.
3 The only evidence placed before the Court was an affidavit on behalf of the plaintiff sworn by Mr Hanna on 18 February 1999 and the following documents:

(a) A document described as “Movements Details”, evidencing that Mr Hanna departed from Australia on 26 August 1998 and returned on 12 September 1998;
(b) A copy of a notice of order of the Tribunal advising of the order made on 7 September 1998;
(c) A letter from the Tribunal dated 21 September 1998.

4 It emerges from the evidence that:

(i) In proceedings in the Consumer Claims Tribunal the plaintiff was ordered to pay to the defendant the sum of $2500; that order was made on 7 September 1998.
(ii) On that date Mr Hanna was in Egypt on what he described in the affidavit as “urgent business” that resulted in his absence from Australia from 26 August 1998 until 12 September 1998;
(iii) In his absence there was no person who appeared before the Consumer Claims Tribunal on 7 September 1998 to present the plaintiff’s case;
(iv) When Mr Hanna learned on his return to Australia of the order that had been made by the Consumer Claims Tribunal, he applied to the Tribunal for a re-hearing, on a form provided by the Tribunal. The form provided for the making of an affidavit by the plaintiff and the basis of an application for a re-hearing was addressed in paragraphs 4 and 5 of that affidavit:
“4. I was not present at the hearing
and
I was not represented by anyone
and
my case was not presented by affidavit or statutory declaration.
5. I did not attend the hearing because:
I was on an important and crucial business visit to Egypt. I am a small business owner and to keep my company running I had no other alternative other than travelling myself. Also my present staff is not aware of the case and I believe that justice can not be done to my organisation and our sincere work. I wish to be heard by honourable tribunal again.”
(v) The application for a re-hearing was refused and the Tribunal wrote to the plaintiff on 22 September 1998 in the terms following:
“I refer to the Consumer Claims Tribunal hearing held on 7/9/98 and your application for a rehearing of this matter.
Section 25(1) of the Consumer Claims Tribunals Act, 1987 provides that a Tribunal may grant a request for a rehearing if satisfied there was sufficient reason for the party’s absence at the previous hearing.
The Tribunal has reviewed your application and has decided in this instance not to grant a rehearing of this claim. Therefore the Tribunal Order of 7/9/98 is still in effect.
Your only avenue of appeal in this matter is to the Supreme Court of New South Wales. Should you contemplate such action it is advisable that you seek legal advice.”
The plaintiff presumably acted on the content of the last paragraph of the above letter in making application to this Court.

5 It appears from correspondence annexed to Mr Hanna’s affidavit that the proceedings in the Tribunal, in which Mr Osman was the claimant, were first set down for hearing on 3 August 1998 but that date was vacated for reasons which do not appear. A fresh hearing date on 17 August 1998 was allocated. However, by letter dated 13 August 1998 the Tribunal advised that the hearing date was to change once more and that the matter was to be dealt with on 7 September 1998. According to Mr Hanna’s affidavit, the letter advising of this September date “was dated 19th August and was received in the plaintiff’s office on 24th August 1998.” That assertion is plainly incorrect, at least in part, because the letter from the Tribunal annexed to the affidavit plainly carried the date stamp 13 August 1998. Be that as it may, the plaintiff received notice of the new hearing date less than two weeks before Mr Hanna was due to depart for Egypt.
6 According to Mr Hanna’s affidavit, he telephoned the Tribunal before he left for Egypt but was advised that the hearing date set for 7 September 1998 would not be postponed.
7 I have set out above the entirety of the evidence placed before this Court by the plaintiff. Mr Osman produced no evidence.
8 The Act under which the Consumer Claims Tribunal functions is the Consumer Claims Tribunals Act, 1987. Under s 34 an order of a Tribunal is to be final. That section provides:
“An order of a tribunal is final and binding on all parties to a consumer claim that is heard and determined by the tribunal and no appeal lies in respect of an order of the tribunal. However, this does not prevent a claim being renewed under section 36 and does not prevent a court granting relief or a remedy as referred to in section 12(2).”
9 Consistently with s 34, s 12 of the statute provides for immunity of decisions of the tribunal from judicial review other than in the circumstances set out in s 12(2). Section 12 provides:
“(1) Except as provided by subsection (2), a court of record has no jurisdiction to grant relief or a remedy by way of:

(a) a judgment or order in the nature of prohibition, mandamus, certiorari or other prerogative writ,
(b) a declaratory judgment or order, or
(c) an injunction,
in respect of a consumer claim heard and determined or to be heard or determined by a tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a claim.
(2) A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) if, in respect of a consumer claim:
(a) a tribunal has given a ruling under section 26 or refused or failed to give such a ruling after the jurisdiction of the tribunal to hear and determine the claim has been disputed by a party to the claim and the ground on which the relief or remedy is sought is that:
(i) the ruling was erroneous, or
(ii) the tribunal erred in refusing or failing to give the ruling after its jurisdiction was disputed, or
(b) a tribunal has made an order under section 30 and the ground on which the relief or remedy is sought is that:
(i) the tribunal had no jurisdiction to make the order, or
(ii) in relation to the hearing or determination of the claim, a party to the claim had been denied natural justice.”

10 In the present case the plaintiff applies to this Court claiming that there has been a denial of natural justice and that in this case it is accordingly appropriate for this Court to intervene by granting the relief sought in the summons.
11 The plaintiff complains that it was denied a reasonable opportunity of being heard in this matter. The authorities make it plain that to deny a party to proceedings a reasonable opportunity to be heard does constitute a denial of natural justice. This principle is well settled and I refer only to the following authorities.
12 In Cameron v Cole (1943) 68 CLR 571 Rich J said at 589:
“It is a fundamental principle of natural justice, applicable to all courts, whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case.”
13 The above dicta were cited with approval in Taylor v Taylor (1979-80) 143 CLR 1, see in particular the judgment of Gibbs J at 7.
14 See also Hoskins v Van Den-Braak (1998) 43 NSWLR 290 and in particular the judgment of Mason P at 294.
15 Parties to proceedings in the Consumer Claims Tribunal are entitled to natural justice as the scheme of that Act makes clear. Indeed s 12(2) expressly recognises that a party to a claim in the Tribunal is entitled to expect natural justice. Section 17, which provides that the Tribunal has control of and responsibility for its own procedures, further provides in sub-s (1) that “in exercising its functions under this Act [a tribunal] must conform to the rules of natural justice.”
16 Proceedings before a Consumer Claims Tribunal are of course less formal than proceedings in a court but nevertheless the statute contemplates that there will be a hearing and s 23 contemplates that evidence may be given orally or in writing at a hearing. Sections 24 and 25 contemplate that the Tribunal may act in the absence of evidence from a party. Section 24 provides:
“(1) Subject to section 25, if at the hearing of a consumer claim by a tribunal the case of a party to the claim is not presented to the tribunal:

(a) the tribunal must decide the issues in dispute on such evidence as is otherwise adduced before it, and
(b) an order made by the tribunal to determine the claim is just as effective as if that party had been fully heard.
(2) Subject to section 25, if none of the cases of the parties to a consumer claim is presented to the tribunal at the time and place fixed for the hearing of the claim, or at the time and place to which the hearing of the claim is adjourned, the tribunal must make an order dismissing the claim.”

17 Section 25, under which section the Tribunal acted in inviting the affidavit which Mr Hanna completed on 14 September 1998 provides in sub-s (1):
“(1) If a tribunal has decided an issue in dispute in the absence of a party to a consumer claim or a consumer claim has been dismissed under section 24(2), a referee may, on application in the approved form lodged at the registry within 14 days after receiving notice of the decision or the order dismissing the claim, order the claim to be reheard if satisfied that there was sufficient reason for the party’s absence.”
18 On the evidence which has been placed before this Court, it has emerged that the plaintiff was not heard in the proceedings before the Tribunal. Indeed on that evidence I find that the plaintiff was not afforded a reasonable opportunity to be heard. I should add that this was through no fault of Mr Osman but nevertheless it is my finding that the plaintiff was not afforded a reasonable opportunity to be heard by the Tribunal.
19 Doubtless the demands upon the Tribunal’s resources are taxing and it may well be difficult to quickly accommodate a matter where an adjournment becomes necessary. However the history of this claim indicates that when, for whatever reason, it became necessary to vacate the first hearing date on 3 August 1998 the Tribunal was able to allocate a new date fourteen days thereafter. Then when it was necessary, again for whatever reason, to vacate that hearing date it proved practicable for the Tribunal to accommodate the matter three weeks thereafter on 7 September 1998. It is noted that on each of those occasions that a hearing time was appointed the time allowed for the hearing was one hour so that to afford to the plaintiff an opportunity to be heard would have required accommodation for one hour at some time following Mr Hanna’s return from Egypt.
20 It seems to me on the evidence before this Court that the plaintiff was not afforded a reasonable opportunity to be heard as I have already indicated. The affidavit sworn by Mr Hanna on 14 September 1998, and to which I have referred, on the face of it showed sufficient reason for his absence at the earlier appointed hearing date and, in the absence of any explanation for the decision of the Tribunal not to grant a re-hearing, I conclude that the plaintiff has established grounds for the relief sought in the summons. It seems to me that the requirements of natural justice demand that the plaintiff be given a reasonable opportunity to be heard by the Tribunal and that thus far such opportunity has not been afforded to it.
21 Accordingly I make the orders sought in paragraphs 1 and 2 of the summons.

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