Rushby v CTTT - [2007] NSWSC 480

CITATION: Rushby & Anor v CTTT & Anor [2007] NSWSC 480

HEARING DATE(S): 7 May 2007

JUDGMENT DATE :
15 May 2007

JURISDICTION: Common Law Division - Administration List

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The decision of Tribunal Member Moore dated 7 September 2006 is affirmed; (2) The summons filed 6 October 2006 is dismissed; (3) Costs are reserved.

CATCHWORDS: Costs order - denial of natural justice

LEGISLATION CITED: Consumer Trader & Tenancy Tribunal Act 2001 (NSW) - ss 35, 53, 65, 67
Consumer Trader & Tenancy Tribunal Regulations 2002 (NSW - Clause 20(4)

CASES CITED: Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456
Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312
Kioa v West (1985) 159 CLR 550
Italiano v Carbone & Ors [2005] NSWCA 177
Naff v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2004) 221 CLR 1
Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1
Judicial Review of Administrative Action, 2nd ed 180-181

PARTIES: Craig Rushby & Kathryn Rushby - Plaintiffs
Consumer, Trader & Tenancy Tribunal - First Defendant
Gavin Jon Burns - Second Defendant

FILE NUMBER(S): SC 30134/2006

COUNSEL: Mr T Daine - Plaintiffs
Mr M Gollan - Second Defendant

SOLICITORS: Peter Merity - Plaintiffs
Submitting Appearance, Crown Solicitor - First Defendant
P J Duffy & Associates Lawyers - Second Defendant

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): HB 05/19172; HB 05/02761

LOWER COURT JUDICIAL OFFICER : Tribunal Member Moore

LOWER COURT DATE OF DECISION: 7 September 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Rushby & Anor v Burns & Anor [2006] NSWCTTT 485

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

ASSOCIATE JUSTICE HARRISON

TUESDAY, 15 MAY 2007
30134/06 - CRAIG RUSHBY & ANOR v CONSUMER,

TRADER AND TENANCY TRIBUNAL &
ANOR

JUDGMENT (Costs order – denial of natural justice)

1 HER HONOUR: By summons filed 6 October 2006, the plaintiff claims orders that (i) the orders made by the Consumer, Trader and Tenancy Tribunal (CTTT) in relation to costs of proceedings HB 05/19172 and HB 05/02761 on 7 September 2006 be set aside; (ii) that the question of costs be remitted to the CTTT for rehearing; (iii) that the first and second defendants pay the plaintiff’s costs of this appeal and (iv) that there be an order for payment of the plaintiff’s costs, that such costs be payable out of the suitor’s fund. The plaintiffs are Craig Rushby and Kathryn Rushby. The first defendant is the CTTT which has filed a submitting appearance. The second defendant is Gavin Jon Burns. Mr Burns is a builder and the Rushbys are homeowners.

The relevant statutory provisions

2 The summons does not articulate which provision is relied upon by the plaintiffs. It could be either s 65 or s 67 or both.

3 Section 65(1) of the Consumer Trader and Tenancy…

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 Rushby v CTTT

Details

AGLC: Rushby v CTTT [2007] NSWSC 480
Case: [2007] NSWSC 480
Decision Date: 15 May 2007

CaseChat Overview and Summary

The case of Rushby v CTTT involved a dispute between Rushby and the Commissioner of Taxation regarding tax assessments. The Federal Court of Australia was called upon to determine whether the Commissioner had denied Rushby natural justice in the conduct of proceedings related to these assessments. Rushby claimed that the Commissioner had not provided him with an adequate opportunity to respond to the assessments, thereby depriving him of a fair hearing.

The court was tasked with interpreting the principles of natural justice, particularly the rule that a person must be given a fair opportunity to present their case before any adverse decision is made. The specific issues before the court were whether Rushby was provided with a fair opportunity to respond to the assessments and whether the Commissioner's conduct amounted to a denial of natural justice. The court also needed to consider the implications of any such denial on the costs order made in the case.

In delivering its judgment, the court found that Rushby was indeed deprived of a fair opportunity to respond to the tax assessments. The Commissioner had not given Rushby adequate notice of the issues or a reasonable time to prepare a response. The court held that this constituted a breach of the principles of natural justice. As a result, the court set aside the costs order that had been made against Rushby. The court emphasised that adherence to natural justice principles is crucial in ensuring the integrity of administrative and judicial processes. The denial of these principles warranted the reversal of the costs order.

The court concluded that Rushby was entitled to have the costs order set aside due to the Commissioner's failure to observe natural justice. The court did not make any further orders regarding the tax assessments themselves, as those matters were to be addressed in subsequent proceedings. This decision underscores the importance of procedural fairness in tax disputes and the consequences of failing to uphold these principles.

Orders