Robinson-Murray v Consumer, Trader and Tenancy Tribunal

[2013] NSWSC 1914

Supreme Court

New South Wales

Medium Neutral Citation:

Robinson-Murray v Consumer, Trader & Tenancy Tribunal [2013] NSWSC 1914

Hearing dates:

20/11/2013; 17/12/2013

Decision date:

20 December 2013

Jurisdiction:

Common Law - Administrative Law

Before:

Harrison AsJ

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The orders of Tribunal Member D Turley dated 14 February 2013 are set aside.

(3) The matter is remitted to the Consumer, Trader and Tenancy Tribunal to be determined according to law.

(4) The second defendant is to pay the plaintiff's costs as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW - judicial review - appeal from decision of Consumer, Trader & Tenancy Tribunal - part of proceedings held in absence of party - whether plaintiff denied procedural fairness

Legislation Cited:

Consumer, Trader and Tenancy Tribunal Act 2001
Supreme Court Act 1970

Cases Cited:

Italiano v Carbone [2005] NSWCA 177
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Maconachie v Kullenberg [2005] NSWCA 294
Re Minister for Immigration & Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Category:

Principal judgment

Parties:

Jessica Robinson-Murray (Plaintiff)
Consumer, Trader & Tenancy Tribunal (First Defendant)
SSS Best Cars Pty Ltd (Second Defendant)

Representation:

Counsel:
J Robinson-Murray (Plaintiff in person)
Solicitors:
Crown Solicitor (Submitting Appearance First Defendant)

File Number(s):

2013/127346

Publication restriction:

Nil

 Decision under appeal 

Date of Decision:

2013-02-14 00:00:00

Before:

Tribunal Member D Turley

File Number(s):

MV 12/51721

Judgment

1. HER HONOUR: The circumstances giving rise to this application are unusual. By amended summons filed 17 May 2013, the plaintiff seeks to appeal the decision of Consumer, Trader and Tenancy Tribunal Member D Turley dated 14 February 2013, in order to "get back $1500 we were not given for the car, $542 that we had to pay to try and get it registered just after we brought it, $77 to get it started 18 days after purchase, NRMA had to get it to a auto electrician to fix it." The main issue to be determined is whether the plaintiff was afforded procedural fairness at the hearing in the Tribunal.

1. The plaintiff in these proceedings is Jessica Robinson-Murray, who was the plaintiff in the Consumer, Trader and Tenancy Tribunal proceedings ("the CTTT"). The first defendant in these proceedings is the CTTT, who has filed a submitting appearance. The second defendant in these proceedings is SSS Best Cars Pty Ltd ("SSS Best Cars"), who was the defendant in the CTTT proceedings.

1. On 10 October 2013, this matter was specially fixed for hearing in this Court on 20 November 2013. Ms Robinson-Murray was self-represented. Her mother accompanied her. There was no appearance of the defendant. SSS Best Cars, Theresa Barg and Sam Barg were called three times outside the Court. There was no appearance on behalf of the second defendant.

1. On 10 October 2013, the Registrar directed the Registry to notify the defendants of the hearing date of 20 November 2013. At the conclusion of the hearing before this Court, it came to my notice that only the CTTT, the first defendant, had been notified of the hearing date. The second defendant, who is the active contradictor had not. Ms Robinson-Murray thought that she had written to the second defendant notifying it of the hearing date. However, after a search of her records, she was unable to find a copy of the fax. Hence, it became necessary to relist this matter for hearing, notifying the second defendant of today's date to give them the opportunity to be heard.

1. On 29 November 2013, the parties were notified of this hearing date. At 10.03 am on the morning of the adjourned hearing, SSS Best Cars, Theresa Barg and Sam Barg were called three times outside Court. There was no appearance on behalf of the second defendant. The plaintiff appeared self-represented.

Proceedings in the CTTT

1. On 14 February 20913, the Tribunal Member ordered SSS Best Cars Pty Ltd c/- Sam & Theresa Barg to pay to Ms Robinson-Murray the sum of $3250 on or before 14 March 2013. The Tribunal Member also ordered that once payment of the $3250 had been made, Ms Robinson-Murray was to permit SSS Best Cars to collect the vehicle forthwith and SSS Best Cars could dispose of that vehicle as it saw fit.

1. The proceedings before the CTTT were sound recorded. The plaintiff and her mother appeared by telephone. The plaintiff had medical reasons that prevented her from attending the Tribunal in person.

1. The Tribunal Member in his written reasons recorded that after the hearing had proceeded for about 35 minutes Ms Robinson-Murray's mother became emotional and abusive to all concerned including her daughter, who then terminated the conversation by stating that she would have to get her mother to hospital. Ms Robinson-Murray then hung up the phone. The Tribunal Member declined to adjourn the hearing and gave verbal reasons for that decision, which were sound recorded. These reasons for refusing the adjournment have not been transcribed.

The Tribunal Member's reasons for decision

The Tribunal Member's reasons for his decision are as follows:

"The facts briefly are that the applicant with the assistance of her mother purchased a vehicle from the respondent on 1/9/2012 for $4250.00. The applicant alleges that the vehicle was not roadworthy and that the respondent made a number of misrepresentations about the vehicle at the time of sale. The respondent arranged for the vehicle to be blue slip tested at an RTA authorised station on 27 August 2012. No defects at all were recorded on that blue slip test result which was tendered by the respondent in its bundle of papers.

The applicant's mother alleged that the hearing was unfair in that she wished to subpoena the person who did the test but the respondent would not reveal the tester's name. The respondent denied ever receiving that request from the applicant but then went on to correctly point out that the applicant could still have subpoenaed the tester whose examiner's number is recorded on the blue slip even though the signature is illegible.

The applicant submitted an NRMA report dated 17/1/13 which is four and a half months after the sale. A large number of problems are recorded therein but only a few of those issues go to road worthiness which included rear tyres worn - in the applicant's mechanic's report of 8/11/12 stated that the rear tyres would require replacing at the next 5000 KM service so this is not an issue of roadworthiness at the point of sale. Also recorded in the NRMA report in relation to roadworthiness is seat belt failure. Again this is not evidence as to the condition of the seat belts at the point of sale and they may have failed in the intervening 4 and 1/2 months.

The major issue in the NRMA report is item 53 about accident damage which is starting to rust and also that the rear under floor panel is pealing away from the chassis and starting to rust. In my opinion these are major defects and they could not possibly have happened in just the 4 and 1/2 months between the sale and the NRMA report. Based on this aspect it is my opinion that the vehicle was not in a roadworthy condition at the point of sale. The NRMA inspector concluded "Vehicle appears to be in a poor condition and in present state not roadworthy".

All the applicant's allegations of misrepresentation were denied under oath by the respondent. Unfortunately the applicant had to terminate the phone call and so these issues were not tested under cross examination.

A curious issue arose about the trade in vehicle. The applicant's mother claims that she was only paid $250 for the trade and it would probably have been sold for $6000.00 which she claims is due to her even though she is not a party to this dispute. In my opinion the trade in is an issue of some difficulty as to who owned that vehicle and whether in effect I can rewrite that contract. There is the possibility of damages for false or misleading conduct if proven but it was at this point of time Mrs Robinson informed me "it is the law". When I asked her what law Mrs Robinson spoke at some length and then the phone conversation was terminated.

The curious incident was that the respondent gave evidence that Mrs Robinson wanted to be paid in cash for the trade in so that the father of the applicant would not find out the amount she was paid for the trade in. The respondent asserted that he paid Mrs Robinson $1500.00 in cash for the trade in and in support of this submission he tendered a copy of the RTA registration form. That form shows a sale price of $1500.00 and bears what I am told is Sarah Robinson's signature. Strange as these submissions may appear there was no evidence before to dispute them and the RTA transfer form gave credence to these submissions. Evidence was also given of the subsequent sale of the trade-in vehicle for $2500.00 on 7/9/2012 and the identity of that purchaser.

Accordingly I made an order which took into consideration the purchase of $4250.00 from which I deducted the $1500.00 which was paid in cash for the trade in. This left a balance of $2750.00 to which I added $500.00 as a contribution to the cost of the NRMA report which was necessary to prove the applicant's claim and the cost of the immobilisers. I dismissed the claim for the mechanical repairs which were completed by "Ryans" as these were mostly maintenance issues. The front tyres were replaced during that service but there is no evidence before me that these were in need of replacement at the point of sale. Accordingly, I made the two orders first for the payment of $3250 to the applicant and then the second for the surrender of the vehicle to the respondent once the $3250.00 has been paid."

The relevant statutory provisions

1. The plaintiff brought her claim pursuant to s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 ("CTTT Act"). She can also rely on s 69 of the Supreme Court Act 1970.

1. Section 69 of the Supreme Court Act provides that this Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari, which includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

1. Section 65(1) of the CTTT Act provides:

"(1) Except as provided by this section, a court 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 relief, or

(b) a declaratory judgment or order, or

(c) an injunction,

in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter."

1. Section 65(3) however provides:

"(3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that:

(a) the Tribunal had no jurisdiction to make the order, or

(b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness."

1. Prerogative relief under s 65(3) of the CTTT Act is discretionary and may be refused where there has been delay on the part of the applicant or it can be said that the applicant has waived or acquiesced in the validity of the decision (Italiano v Carbone [2005] NSWCA 177 per Basten JA at [117]; Maconachie v Kullenberg [2005] NSWCA 294 per McColl JA (Basten and Giles JJA agreeing) at [59]).

Denial of procedural fairness

1. The thrust of the plaintiff's submissions is that she has been denied procedural fairness both in the Tribunal.

1. The starting point is Kioa v West [1985] HCA 81; (1985) 159 CLR 550, where Mason J held that the duty to accord natural justice is a duty to act fairly (at 583). In the normal course, a party to administrative proceedings (as are those in a tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing so as to give it a reasonable opportunity to meet that case and to advance its own.

1. In Kioa v West, Mason J (at 584-585) stated that the law in relation to procedural fairness had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. Whether there is a denial of procedural fairness depends on the circumstances in each case.

1. In Re Minister for Immigration & Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 the High Court discussed the manner in which procedural fairness cases are approached by the courts. Gleeson CJ said (at [37]):

"Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."

1. The matters raised in the plaintiff's submissions are wide ranging. However, I shall confine this judgment to the matters raised in the amended summons.

1. So far as the Tribunal is concerned, specific reference should be made to ss 28 and 35 of the CTTT Act. Section 28 relevantly reads:

"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..."

1. Section 35 reads:

"Opportunity for parties to present case

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."

1. Section 35 provides that the CTTT "must ensure" that each party is given "a reasonable opportunity" to present its case. Provisions of the CTTT Act allow the CTTT a significant degree of flexibility in adapting its procedures to the exigencies of the case in determining the manner in which the proceedings will be conducted. Nevertheless, those provisions should not be construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness - see Italiano v Carbone at [105] and [106].

1. The point raised is a short one, whether the Tribunal Member denied procedural fairness when he declined to grant an adjournment during the hearing.

Events prior to the hearing

1. On 21 January 2013, the CTTT allocated a hearing date in this matter on 14 February 2013 at 9.15 am at Liverpool. The plaintiff sought to change the venue to Sydney and provided medical evidence to support her request.

1. On 4 February 2013, Dr Gergis of XXXX XXXX, XXXXX wrote to the Ms M Marquez, Deputy Registrar of the CTTT regarding the hearing date on 14 February 2013 at 9.15 am and requesting that the hearing be moved to the Sydney Tribunal.

1. After setting out details of Ms Robinson-Murray's medical condition [which for reasons of privacy I will not reproduce here] Dr Gergis continued:

"...

Jessie Robinson will be unable to travel to Liverpool for the hearing, due to her illness and the fact she has no transport (the reason for the hearing).

Jessie Robinson would be able to attend the Sydney Tribunal, as it is only 10 minutes by ferry for her, as long as the hearing lasts no more than one hour or one and a half hours at most.

Jessie Robinson will be unable to be in the same room as SSS Best Cars due to her health and the stress that they have caused her.

Jessie's Mother Sarah Robinson will be unable to be in the same room as SSS Best Cars, as due to the stress of this case and Jessie's health she has collapsed unconscious and an ambulance had to be called to attend to her.

Due to the severe health issues for Jessie and her mother, I am requesting you change the hearing to Sydney Tribunal or have a phone conference. I understand that to date you have refused the request to have the hearing changed to the Sydney Office."

1. The Tribunal did not change the venue from Liverpool to Sydney but made arrangements so that the plaintiff could present her case by means of telephone.

Mother's medical condition during the hearing

1. So far as the Tribunal Member's refusal to grant an adjournment of the hearing, the plaintiff has now produced two medical reports in relation to her mother's medical condition on 14 February 2013 when the hearing took place.

1. On 27 February 2013, Dr Tang issued a medical certificate confirming that Ms Sarah Robinson had a medical condition and that she was seen in Dr Tang's surgery on 14 February 2013 (Ex B).

1. On 21 November 2013, Dr Bui issued a medical certificate stating that:

"I see Mrs Robinson today. She asks me for a letter to the supreme court.

Mrs Robinson said that she was on the phone conference with CTTT and SSS Best Cars. She was so upset and collapsed during the conference

Her daughter Jessica took her to see DR Tang (on maternity leave now)

DR Tang stayed with her for about ½ to calm her down

Check Blood pressure. Talked to get her through the hysterical state.

Stayed in treatment room for another 20 minutes before she calmed down to go home."

1. Ms Robinson-Murray in her amended summons relevantly states as follows.

"k. We were not present for this hearing and there for (sic) not allowed to give our evidence that was all in front of the Tribunal member, which he did not use.

l. We were given $250 for mums trade in, we were told that it had to be scraped and they were going us a favour.

m. The respondent claims that he sold the car for $2500, however he produced evidence that he sold it for $2999 to the tribunal.

n. The respondent claimed we asked for $1500 cash for the car he paid us $250.

o. Bank statements show that I paid $3,500 and mum paid $750 in F/Pos cash.

...

r. Respondent claims he sold the trade in for $2500 yet produced evidence he sold it for $2999 at the tribunal.

s. Our appeal is to get back the $1500 we were not given for the car, $542 that we had to pay to try and get it registered just after we bought it, $77 to get it started 18 days after purchase, NRMA had to get it to a auto electrician to fix it.

t. I bought the car to learn to drive in, SSS Best Cars knew this, the car was not safe for me to drive so I had to get a small loan to get the car to go, and then I had to pay for driving lessons. I request my money back for the driving lessons that I would not have had to get if the car was road worthy $1524.00."

1. Ms Robinson-Murray case is that she paid $4250 for the car and the amount she received for the car she traded in was only $250. On 14 February 2013, the Tribunal Member ordered that SSS Best Cars pay $3250 to the plaintiff. In ordering the amount to be paid, the Tribunal Member took into account the $1500 allegedly paid in cash for the trade in but Ms Robinson-Murray claims that she only received $250. There was a factual dispute over the amount that was paid for the trade in. However, Ms Robinson-Murray did not have the opportunity to properly present her case on this issue of the amount she received for the trade in.

1. While the circumstances are unusual, it is my view that Ms Robinson-Murray was denied procedural fairness in the Tribunal hearing on 14 February 2013 when she was denied an adjournment and where the hearing continued in her absence.

1. The appeal is upheld. The orders of Tribunal Member D Turley dated 14 February 2013 are set aside. The matter is remitted to the Consumer, Trader and Tenancy Tribunal to be determined according to law. The second defendant is to pay the plaintiff's costs as agreed or assessed.

The Court orders that:

(1) The appeal is upheld.

(2) The orders of Tribunal Member D Turley dated 14 February 2013 are set aside.

(3) The matter is remitted to the Consumer, Trader and Tenancy Tribunal to be determined according to law.

(4) The second defendant is to pay the plaintiff's costs as agreed or assessed.

**********

Decision last updated: 03 January 2014