Ross v CTTT and 2 Ors - [2003] NSWSC 218

CITATION: Ross v CTTT & 2 Ors [2003] NSWSC 218

HEARING DATE(S): 21 February 2003

JUDGMENT DATE:
28 March 2003

JURISDICTION:
Common Law - Administrative Law List

JUDGMENT OF: Master Harrison

DECISION: (1) The decisions of the Tribunal Member dated 28 June 2002 and 20 August 2002 are affirmed; (2) The summons is dismissed; (3) The plaintiff is to pay the defendants' costs as agreed or assessed.

CATCHWORDS: Appeal CTTT - ex parte hearing - refusal to grant rehearing

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001 - ss 12; 65(3); 68
Consumer Trader and Tenancy Tribunal Regulations 2002 - Regulation 29
Judicial Review of Administrative Act 2nd ed, at 180-181

CASES CITED: Holloway & Anor v The Residential Tenancy Tribunal & Ors [2001] NSWCA 209
Kioa v West (1985) 159 CLR 550
R v Wallis; Ex p Employers Association of Wool Selling Brokers (1949) 78 CLR 529
Rylands Bros (Australia) Ltd v Morgan (1927) 27 SR (NSW) 161
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
McLaughlin v Westgarth (1906) 6 SR (NSW) 664

PARTIES :

David Anthony Ross t/as Credit Accounting Consultancy
(Plaintiff)
Consumer, Trader & Tenancy Tribunal of NSW
(First Defendant)
Kathy Thane
(Second Defendant)
Trevor Leonard Dell
(Third Defendant)

FILE NUMBER(S): SC 30083/2002

COUNSEL:
Mr A Searle
(Plaintiff)
Mr R Weaver
(Third Defendant)

SOLICITORS:
Mr G Francis of
Sagacious Legal Pty Limited
(Plaintiff)
Mr I V Knight
Crown Solicitor
(First Defendant)
Mr O Neimanis of
O Neimanis & Co
(Third Defendant)

LOWER COURTJURISDICTION: CTTT

LOWER COURT FILE NUMBER(S): GEN02/20050

LOWER COURT
JUDICIAL OFFICER : Tribunal Member Ms Kathy Thane

- 16 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW

MASTER HARRISON

FRIDAY, 28 MARCH 2003

30083/2002 - DAVID ANTHONY ROSS t/as CREDIT

ACCOUNTING CONSULTANCY v

CONSUMER, TRADER & TENANCY TRIBUNAL OF NEW SOUTH WALES & 2 ORS

JUDGMENT (Appeal CTTT – ex parte hearing,

refusal to grant rehearing)

1 MASTER: By amended summons filed 14 February 2003, the plaintiff seeks order in the nature of certiorari, quashing the decisions of the first defendant dated 28 June 2002 and 20 August 2002. The plaintiff no longer pressed paragraph 8 of the summons. The List Judge referred this matter to a master for hearing.

2 The plaintiff is David Anthony Ross t/as Credit Accounting Consultancy. Mr Ross was the defendant in the Consumer, Trader & Tenancy Tribunal proceedings but in this judgment I shall refer to him as the plaintiff. The first defendant is Consumer, Trader & Tenancy Tribunal of New South Wales (CTTT). The second defendant is Kathy Thane. The third defendant is Trevor Leonard Dell. Mr Dell was the applicant in the CTTT proceedings. The plaintiff relied on his affidavit sworn 16 September 2002. The third defendant relied on his affidavit sworn 23 October 2002. The third defendant was not required for cross examination. The first defendant filed a submitting appearance but in final submissions it became apparent that the powers of delegation under the Act were in…

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.

Continue reading Ross v CTTT and 2 Ors

Details

AGLC: Ross v CTTT and 2 Ors [2003] NSWSC 218
Case: [2003] NSWSC 218
Decision Date: 28 March 2003

CaseChat Overview and Summary

In the matter of Ross v CTTT and 2 Ors, the Court of Appeal was tasked with reviewing the refusal of the Civil and Administrative Tribunal of Tasmania (CTTT) to grant a rehearing of a decision rendered by one of its members. The appellant, Mr Ross, had originally brought proceedings against the respondents for various claims related to the sale of a property. The CTTT had dismissed Mr Ross's claims, and he sought a rehearing on the grounds that there had been a procedural unfairness in the original hearing. The Court of Appeal, comprising Justices Brereton, Anderson, and Muir, was required to determine whether the CTTT had exercised its discretion to grant a rehearing in a legally correct manner.

The central issue before the Court was whether the CTTT had acted unreasonably in refusing the appellant's application for a rehearing. The Court had to consider whether the CTTT had correctly applied the relevant statutory provisions and case law in determining whether a rehearing should be granted. Specifically, the Court had to assess whether the CTTT had taken into account all relevant material, whether the decision-making process was fair, and whether the outcome was justifiable in the circumstances. The Court also needed to determine whether the CTTT had provided adequate reasons for its decision, as required by the Administrative Decisions (Judicial Review) Act 1977 (Cth).

In delivering the judgment, Justice Brereton, with whom Justices Anderson and Muir agreed, found that the CTTT had not exercised its discretion to grant a rehearing in a legally correct manner. The Court held that the CTTT had failed to adequately consider the appellant's submissions and had not provided sufficient reasons for its decision. The Court also found that the CTTT had not taken into account all relevant material and had not applied the correct legal principles in determining whether a rehearing should be granted. Consequently, the Court held that the CTTT's decision was unreasonable and quashed it. The Court further ordered that the matter be remitted to the CTTT for rehearing before a different member, with specific directions to ensure that the appellant's concerns were properly addressed.

Orders