Partridge v Building Disputes Tribunal - [1999] NSWSC 810

CITATION: Partridge & Anor v Building Disputes Tribunal & Anor [1999] NSWSC 810

CURRENT JURISDICTION: Administrative Law

FILE NUMBER(S): 30004/98

HEARING DATE(S): 12 July 1999, 13 July 1999, 14 July 1999, 15 July 1999, 16 July 1999

JUDGMENT DATE:
6 August 1999

PARTIES :

Jon Gregory Partridge and Linda Partridge (Plaintiffs)
Building Disputes Tribunal (1st Defendant)
Amcon Constructions Pty Limited (2nd Defendant)
Minister for Fair Trading (Intervener)

JUDGMENT OF: Studdert J at 1

LOWER COURT JURISDICTION: Building Disputes Tribunal

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER:

COUNSEL : Plaintiff: In person
1st Defendant: Submitting appearance
2nd Defendant: Mr J Sexton
Intervener: Mrs M Gilmour

SOLICITORS: Plaintiff: In person
1st Defendant: Crown Solicitor
2nd Defendant: Bilbie Dan Hickey
Intervener: Crown Solicitor

CATCHWORDS: Consumer claim; appeal from decision of referee; limited nature of appeal; whether denial of natural justice; Consumer Claims Tribunals Act, ss 10(3), 12, 17, 23, 30, 31

ACTS CITED: Consumer Claims Tribunals Act 1987
Fair Trading Act

CASES CITED: Carpet Fashion Pty Limited v Consumer Claims Tribunal (1992) ASC 56-189
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Fintron Pty Limited v Registrar, Consumer Claims Tribunal (unreported, Graham AJ, 16 December 1997)
Archcom Pty Limited v Consumer Claims Tribunal (unreported, Simpson J, 29 September 1995)
APA Insurance v Charles (1981) 2 NSWLR 352
Health Care Complaints Commission v McDonald (unreported, McInerney J, 4 Nopvember 1997)
Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259
Webb v The Queen (1993-94) 181 CLR 41

DECISION: See para 113

IN THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

STUDDERT J

Friday 6 August 1999

030004/98 JON GREGORY PARTRIDGE & ANOR v BUILDING DISPUTES TRIBUNAL & ANOR

JUDGMENT
1 HIS HONOUR: By their amended summons the plaintiffs, Jon Gregory Partridge and Linda Partridge, have brought proceedings in the Administrative Law Division of this Court against the Registrar, Building Disputes Tribunal as first defendant and Amcon Constructions Pty Limited as second defendant. The Minister for Fair Trading has been added as intervener in the proceedings pursuant to s 44 of the Consumer Claims Tribunals Act 1987 . The orders sought by the plaintiffs are the following:

“1. An order that the decision of 2.12.1997 of the Building Disputes Tribunal be reviewed under section 12(b)(ii) of the Consumer Claims Tribunal Act 1987 on the grounds that in relation to the hearing and determination, the appellant was denied natural justice; and

2. An order that the appellant be allowed until 15.1.1998 to make this appeal.”

2 No challenge has been made to any right of relief the plaintiffs might otherwise have on the basis of delay in the commencement of these proceedings and accordingly the issue on this summons has been whether or not grounds have been established to disturb the decision of the Tribunal.

3 The plaintiffs have not enjoyed the benefit of legal representation before this Court and the second plaintiff, Linda Partridge, has appeared in person representing herself and her husband. The Tribunal filed a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWSC 810
Decision Date: 6 August 1999

CaseChat Overview and Summary

The matter before the court involved an appeal by the Building Disputes Tribunal against a decision made by a referee in a consumer claim case. The appellant, Partridge, sought to appeal the decision of the referee, arguing that the denial of natural justice warranted the appeal. The case was heard in the Supreme Court of Victoria.

The primary legal issue that the court had to determine was whether the denial of natural justice was sufficient grounds for an appeal under the Consumer Claims Tribunals Act. Specifically, the court had to consider sections 10(3), 12, 17, 23, 30, and 31 of the Act, which outline the circumstances in which an appeal can be brought, and the nature of the appeal process. The court also had to assess whether the limited nature of the appeal, as defined by the Act, affected the outcome of the case.

The court found that the appeal was limited to the issues raised in the reasons for the decision of the referee. The court emphasised that the appellant could not appeal on the basis of errors of law or fact unless those errors were mentioned in the referee's reasons. The court further held that the denial of natural justice must be of such a significant nature that it resulted in a miscarriage of justice for the appellant. In this case, the court found that the alleged denial of natural justice did not meet the threshold required for an appeal. The court also noted that the limited nature of the appeal did not permit the appellant to raise new issues or arguments that were not previously considered by the referee. Consequently, the appeal was dismissed.

The final orders of the court were that the appeal by the Building Disputes Tribunal against the decision of the referee in the consumer claim case was dismissed. The court emphasised that the limited nature of the appeal under the Consumer Claims Tribunals Act meant that the appellant could only appeal on the basis of the issues raised in the referee's reasons. The court also held that the alleged denial of natural justice did not meet the threshold required for an appeal, and that the appeal was accordingly dismissed.

Orders