Rowlands v Consumer, Trader and Tenancy Tribunal

[2003] NSWSC 730

CITATION:	Rowlands v Consumer, Trader & Tenancy Tribunal [2003] NSWSC 730 revised - 20/08/2003
HEARING DATE(S):	07/08/03
JUDGMENT DATE:	7 August 2003
JUDGMENT OF:	Gzell J
DECISION:	Order nisi granted
CATCHWORDS:	ADMINISTRATIVE LAW - Prerogative Writs and Orders - Consumer, Trader & Tenancy Tribunal - Order for termination of tenancy in absence of plaintiff - Rehearing application refused - Exception to privative clause for denial of procedural fairness - Whether order nisi in the nature of a prerogative writ should be granted
LEGISLATION CITED:	Consumer, Trader and Tenancy Tribunal Act 2001
PARTIES :	Rachel Rowlands - Plaintiff Consumer, Trader and Tenancy Tribunal - 1st Defendant Daniel Nott - Second Defendant
FILE NUMBER(S):	SC 30070/03
COUNSEL:	Ms Rachel Rowlands - In Person
SOLICITORS:

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 7 AUGUST 2003

30070/03 ROWLANDS v CONSUMER, TRADER & TENANCY TRIBUNAL & ANOR

EX TEMPORE JUDGMENT

1 I have before me Ms Rowlands, an applicant in person. On Friday 1 August 2003, an application was due to be made to the Consumer, Trader & Tenancy Tribunal at 2pm concerning her occupancy of premises at 31 Elizabeth Bay Road, Elizabeth Bay, Sydney. Because of transportation difficulties, Ms Rowlands notified the Tribunal that she would be late. She says she arrived at 2.35pm. She was handed a document being a notice of an order made for termination and possession of the premises together with an order that she should pay the landlord a daily occupation fee at a specified rate to the date of giving up possession.

2 On Monday 4 August 2003, Ms Rowlands applied under the Consumer, Trader and Tenancy Tribunal Act 2001, s 68(1) for a rehearing. Today, Thursday 7 August 2003, she received a notice that on Tuesday 5 August 2003 her application for a rehearing was refused. It was said that she was aware of the time and place of the hearing and an additional 45 minutes was allowed for her to be present. Ms Rowlands disputes this.

3 The Consumer, Trader and Tenancy Tribunal Act 2001, s 65(1) is in the following terms:

“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.”

Section 65(3), however, provides:

“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.”

4 I think it is open to argument that Ms Rowlands was denied procedural fairness in the refusal by the Tribunal to rehear the matter.

5 I make an order that the Tribunal show cause before me at 10am on Friday 8 August 2003 why a judgment or order in the nature of prohibition, mandamus, certiorari or other relief should not be issued forthwith. I direct that notice of this order be given in the first instance by telephone by my Associate to the Tribunal.

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Last Modified: 08/20/2003