Souleles v Todd

[2015] NSWSC 862

Supreme Court

New South Wales

Medium Neutral Citation:

Souleles v Todd [2015] NSWSC 862

Hearing dates:

25 June 2015

Date of orders:

02 July 2015

Decision date:

02 July 2015

Jurisdiction:

Common Law - Administrative Law

Before:

Harrison AsJ

Decision:

The Court orders that:

(1) The summons filed 6 November 2014 is dismissed.

(2) The plaintiff is to pay the defendant’s costs on an ordinary basis as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW – judicial review – decision of member of the Consumer, Trader and Tenancy Tribunal – operation of CTTT Tribunal notice of hearing provisions – when proceedings may be held in absence of party

Legislation Cited:

Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW)
Interpretation Act 1987 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Austral Brick Co Pty Ltd v Rami El Hayek t/as RCV Stoneworks [2013] NSWSC 571
Blue Haven Pools & Spas Pty Ltd v Cunningham & Anor [2011] NSWSC 1435
Brennan v New South Wales Land and Housing Corporation (2011) 83 NSWLR 23; [2011] NSWCA 298
David Harris & Deidre Harris t/as Wellington Concrete v Mayne [2011] NSWSC 1551
Italiano v Carbone & Ors [2005] NSWCA 177

Category:

Principal judgment

Parties:

George Souleles (Plaintiff)
Georgina Todd (Defendant

Representation:

Counsel:
M McAuley (Plaintiff)
SJ Stanton with MB Holmes (Defendant)

Solicitors:
NJ Papallo Lawyers (Plaintiff)
Jordan Djundja Lawyers (Defendant)

File Number(s):

2014/327177

Publication restriction:

Nil

Judgment

1. HER HONOUR: By summons filed 6 November 2014, the plaintiff seeks firstly, an order extending the time for commencing proceedings by summons under Rule 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); secondly, a declaration that the whole of the decision of the Consumer, Trader and Tenancy Tribunal (“CTTT”) dated 7 August 2013, numbered HB 12/63536 (“CTTT decision”) is vitiated by jurisdictional error; thirdly, an order in the nature of certiorari, removing the CTTT decision into this and quashing the CTTT decision; and finally, an order remitting matter numbered HB 12/63536 to the NSW Civil and Administration Tribunal to be determined according to law.

2. The plaintiff in this Court is George Souleles, who was the defendant in the CTTT proceedings. The first defendant in these proceedings is Georgina Todd, who was the plaintiff in the CTTT proceedings. The second defendant is the Consumer, Trader and Tenancy Tribunal. The third defendant is the Local Court of New South Wales. The second defendant has filed a submitting appearance. The Local Court has no involvement in this judicial review. By consent, I have removed it as the third defendant. For convenience, I shall refer to the parties by name.

3. Mr Souleles relied upon two of his affidavits dated 4 February 2015 and 23 June 2015 and the affidavit of his solicitor Richard Kouchoo dated 3 February 2015.

4. These proceedings were heard prior to 1 January 2014. On 1 January 2014, the CTTT was abolished and the NSW Civil and Administrative Tribunal (“NCAT”) was established. Hence, the Consumer, Trader and Tenancy Tribunal legislation applied when the hearing in the CTTT took place.

Relief

5. Mr Souleles relied on s 69 of the Supreme Court Act 1970 (NSW). 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.

Grounds of review

6. The grounds of review are that the CTTT erred in law and/or made a jurisdictional error in purporting to determine the proceedings at the hearing on 7 August 2013, in circumstances in which Mr Souleles was denied natural justice in that he did not received a notice of the hearing, and he was not present at the hearing.

The Tribunal generally

7. At the outset, it is helpful to set out some of the provisions of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (“CTTT Act”) that were applicable. The functions of the Tribunal are to adjudicate disputes between consumers and commercial disputes between landlords and tenants. The Tribunal is not constrained by the rigour of the courtroom. Its objects are to ensure that the Tribunal is accessible, its proceedings are efficient and effective, its decisions are fair, and to enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner. 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 (s 28).

8. Evidence must be given on oath or statutory declaration (s 39(1)) but the Tribunal is not bound by the rules or practice of evidence. The Tribunal may inform itself on any matter and in such manner, as it considers appropriate (s 28(2)). The Tribunal must conform to the rules of natural justice, but broadly speaking, has control of and responsibility for its own procedures (s 28(1) and (2)). Its business is conducted in public (s 33). Section 35 provides that the Tribunal must ensure that each party in any proceedings is given a reasonable opportunity to call or give evidence and otherwise present the party’s case (whether at a hearing or otherwise); and to make submissions in relation to the issues in the proceedings. Normally, a party to the proceedings has carriage of his or her own case and is not entitled to be legally represented (s 36(1)). The Tribunal has the power to award costs (s 53), but usually each party bears its own costs. Pursuant to s 54 of the CTTT Act, the Tribunal is obliged to use its best endeavours to bring the parties to a settlement before making an order. The Tribunal has a power to correct its decision (s 50) and the Registrar can issue a certificate, which operates as a judgment to recover amounts ordered to be paid (s 51).

The CTTT proceedings

9. On 14 December 2012, Georgina Todd made an application to the Home Building Division of the CTTT seeking costs against Mr Souleles to rectify and complete works in the amount of $54,229.44 plus the loss of rent claimed at $700 per week totalling $55,224.73. This application nominated two addresses for Mr Souleles, the first c/- Legal Grounds Café (Legal Grounds Café address) and an email address. Mr Todd, Ms Todd’s father, served Mr Souleles with the application together with the notice of directions hearing that was to occur on 8 February 2014. Mr Souleles was served at the Legal Grounds Café. Legal Grounds Cafe is owned by Mr Souleles’ brother-in-law.

10. On 8 February 2013, both Ms Todd and Mr Souleles appeared at the CTTT directions hearing. The Tribunal Member set a timetable. It is as follows:

“1.   By Consent, on 8 February 2013, the hearing was adjourned to a date to be fixed by the Registrar.

2.   Georgina Todd shall send to George Souleles and the Tribunal, a copy of all documents including witness statements, on which the applicant intend to rely at the hearing by 22 February 2013.

3.   George Souleles shall send to Georgina Todd and the Tribunal a copy of all documents including expert reports and witness statements on which the respondent intends to rely at the hearing by 08 March 2013.

Georgina Todd shall allow George Souleles reasonable access to the premises for the purpose only of carrying out an inspection of the alleged defective or incomplete work. On such occasion, George Souleles (or their representative), may be accompanied by a building consultant or other expert witness. The Tribunal notes that the applicant intends to commence further building works on 21 February 2103 and access must be granted, if required by the respondent, prior to that date.

…

4.   Leave is granted to both parties to be represented.”

11. On 8 February 2013, the CTTT sent a notice of the directions made to Mr Souleles’ email address. He received this notice.

Did Mr Souleles advise the CTTT of a change of address?

12. Mr Souleles says that he has never received any correspondence or notification from the CTTT at his residential address.

13. He has sworn a number of affidavits where he sets out what he says occurred at the CTTT on 8 February 2013. He has sworn various affidavits in this Court, the NCAT, the Local Court and the Federal Circuit Court. Starting with his earlier affidavit dated 4 February 2015 filed in these proceedings, Mr Souleles deposed at [15] to [22] that at the directions hearing on 8 February 2013, the following occurred:

“15   I noticed that attached to that document there was a Notice of Directions Hearing, dated 19 December 2012, which showed matter had been set down for 8 February 2013 at 10.15 am.

16   I turned up at the CTTT on 8 February 2013.

17   The matter came before an officer of the Tribunal.

18   The solicitor for the applicant was also in attendance.

19   The Tribunal officer made certain orders.

20   I do not recall precisely the Orders

21   I did not understand them.

22   I spoke to a member of the Registry staff, who said to me the following words, or words to the following effect: ‘You will be told in writing when a hearing date is made. You don’t have to do anything until you are told of the hearing date.’”

14. There is no mention that he advised a registry staff member of his residential address.

15. In his latter affidavit dated 23 June 2015 (also filed in these proceedings two days prior to the hearing) Mr Souleles [7] to [9] deposed:

“7   When I was at the directions hearing at the CTTT on 8 February 2013, I said the following words, or words to the following effect to an officer of the CTTT: ‘You had better note my email and my residential address. The Legal Grounds Café is not my residential address. My address is xxx, and my email address is xxx.’

8   The officer of the CTTT said: ‘I will make a note of this.’

9   I observed the officer of the CTTT make a note of both my residential address and my email address in the records of the CTTT.”

16. There is no record of change of address in the CTTT file.

17. Mr Souleles was extensively cross examined as to what occurred at the CTTT on 8 February 2013. In cross examination, Mr Souleles identified the person he spoke to at the registry as being female. At [9] (Aff, 23 June 2015) he says that he observed the member “make a note of both my residential address and my email address.” However in cross examination he gave the following evidence (T32.37-49, T33.1-23):

“Q. You were content to allow Legal Grounds to remain as the address?

A. No.

Q. Because you had no intention of defending these proceedings at all?

A. And at any instance I never received it through the mailing system anyway. It was handed to me by Mr Todd, which happens to be the defendant's father.

Q. And you never filed any evidence in these proceedings, did you?

A. Which proceedings?

Q. As they then were, the CTTT proceedings, you never filed any evidence?

A. I had all my evidence to file and it was adjourned as quick as we got in there.

Q. You had it ready to file but you didn't file it, is that what you are saying?

A. Yeah. No-one filed anything. It was‑

Q. Your evidence, I am interested in that, you had ready to file?

A. It wasn't a proper-

HER HONOUR

Q. When did you have the evidence ready to file?

A. On the day, on 8 February. Was it the 8th? Yeah, 8th.

STANTON

Q. What was that evidence?

A. All the email correspondence and SMS correspondence I had between the defendant, or today's defendant, and myself.

Q. That was ready to file?

A. Yes. Or to be shown. I don't know if it was going to be filed that day, but to be shown.

Q. You brought it to the registry?

A. I had everything.”

18. On 8 February 2013, when Mr Souleles appeared at the directions hearing at the CTTT, he had says he had his evidence ready.

19. This evidence is at odds with Mr Souleles’ earlier affidavit where he portrays himself as an unsophisticated person who does not understand court orders. He points out that he has never studied law, never undertaken any courses in law (Aff, 4 February 2015 [10] and [12]) and his knowledge of the law is based on what he has learnt from talking to people and from what he has read in the newspapers. He says that he did not understand procedural directions nor Tribunal orders (Aff, 4 February 2015 [21] and [24]).

20. In the other affidavits, one in the Local Court and the other at NCAT, Mr Souleles sets out what occurred in the CTTT. In cross examination he admitted that he did not mention the alleged conversation with the female registry officer on 8 February 2013 in either of these affidavits. However, he says he has a recollection of telling his solicitors about the conversation that took place with the female registry officer in the CTTT registry but they omitted to include it in his earlier affidavits (T12-15).

21. Overall, I found Mr Souleles to be an unsatisfactory witness. He agreed that he is not a stupid man (T26.15). I formed the opinion that he was well able to understand and answer questions when in the witness box. In my view, he is more than capable of understanding court orders and process. On 8 February 2013, he was prepared as he took his evidence with him to the CTTT at the first directions hearing (although there is no mention of this in his affidavit). I do not accept the conversation referred to in paragraphs [7] to [9] of his 23 June 2015 affidavit actually took place. Rather, this conversation is one of recent invention where he seeks to explain that he took steps to advise the CTTT of his correct address but the CTTT overlooked it. Not only did the CTTT overlook recording his residential address but apparently so did his solicitors as they failed to include it in his earlier affidavits. As I have previously stated, there is no record of this purported conversation contained in the CTTT records. I also do not accept Mr Souleles’ evidence that he had almost no comprehension of what occurred before the Tribunal Member on 8 February 2013.

22. I shall set out the further chronology of the listings in the CTTT, focussing upon when Mr Souleles appeared and when he did not and then refer to other steps he has taken to set aside the ensuing Local Court judgment and bankruptcy proceedings.

23. On about 25 February 2013, Ms Todd requested an extension of time in order for her to comply with directions made on 8 February 2013. A letter was sent by the CTTT to Mr Souleles at the Legal Grounds Café address asking him whether he consented to the request. He did not reply.

24. On 12 March 2013, the CTTT wrote to Mr Souleles confirming the request from Ms Todd to extend time for compliance with the directions made on 8 February 2013 had been considered and directions made. The CTTT also emailed Mr Souleles a copy of this letter.

25. On 12 March 2013, the CTTT made the following directions:

“The request by Georgina Todd to extend time to comply with procedural directions made on 8/2/13 has been considered.

On 12/3/13 the following procedural directions were made:

1.   Timetable made by the Tribunal on 8/2/13 is amended.

2.   Time for compliance with direction 2 is extended to 19/3/13.

3.   Time for compliance with direction 3 is extended to 2/4/13.”

26. Mr Souleles received this notification at his email address.

27. On 18 March 2013, the CTTT issued a notice of directions hearing to Mr Souleles advising him that the application was listed before the Tribunal on 29 April 2013 at 10.15 am. The notice further advised, “It is important that you are on time as the Tribunal may decide the matter in your absence. The decision made will be binding on you.” This notice was posted to him c/- the Legal Grounds Café address. Mr Souleles did not appear at this directions hearing.

28. On 29 April 2013, the appearance record noted that Mr Souleles did not appear. A notice dated 29 April 2013, was sent to the parties that states:

“1.   On 29 April 2013 the hearing was adjourned to a date to be fixed by the Registrar.

2.   The Parties shall advise the Tribunal and each other by 4.00pm 06 May 2013 of unavailable dates for hearing of their witnesses and representatives and the names of the other parties’ witnesses required for cross-examination.

3.   The applicant is to file and serve the outstanding document no later than Friday 03 May 2013.

4.   Any evidence not served in compliance with previous orders or the order above may not be admitted at the hearing of this matter.

A separate written notice of the new hearing date will be sent to you in the near future.”

29. It was also noted by the Registrar that Mr Souleles had not attempted to access the property nor had he provided any evidence or sent any correspondence. These orders were posted to Mr Souleles at the Legal Grounds Café address.

30. On 3 June 2013, a notice of hearing fixing the date for hearing on 25 July 2013 at 9.15am was posted by the CTTT to Mr Souleles at the Legal Grounds Café address.

31. On 4 June 2013, a further letter was posted to Mr Souleles advising him that the hearing on 25 July 2013 had been adjourned, that there was no need for him to turn up and written confirmation of the new hearing date would be sent by the CTTT to him shortly. This notice was also emailed to him. He says he received that notice at his email address.

32. On 14 June 2013, the CTTT issued a notice of hearing that was posted to Mr Souleles c/- Legal Grounds Café. This notice advised that the hearing was set down for 7 August 2013 at 9.15am at Room 6, Floor 13, 175 Castlereagh Street, Sydney NSW 2000. This notice further stated, “It is important that you are on time as the Tribunal may decide the matter in your absence. The decision made will be binding on you”. Mr Souleles says that he did not receive this notice.

33. On 7 August 2013, Mr Souleles did not appear. Ms Todd and her solicitor appeared. The hearing proceeded in his absence.

34. On 7 August 2013, in his reasons for decision, the Tribunal Member relevantly stated:

"The respondent did not appear at the hearing of the matter and no reasonable explanation for the non-appearance has been provided to the Tribunal. The respondent has declined to participate in the hearing of the matter and has failed to file any evidence in accordance with the directions issued by the Tribunal. I am satisfied that a hearing notice was sent to the address provided by the respondent and that he has previously appeared before the Tribunal after notices of hearing were sent to his business address.

The directions issued by the senior member on the last occasion put the respondent on notice that the hearing may proceed in his absence if he did not attend. Having regard to the previous non appearances and as no evidence has been filed I am satisfied that the justice of the case requires that the hearing proceed today, and in the absence of any application for adjournment the matter was dealt with in the absence of the respondent.”

35. The Tribunal Member gave reasons for his decision and ordered Mr Souleles to pay Ms Todd the sum of $60,374 for damages for breach of statutory warranties and breach of contract. This amount was ordered to be paid on or before 9 September 2013. Mr Souleles was also ordered to pay Ms Todd’s legal costs on a party/party basis. A copy of the reasons for decision and a notice of order were sent by the CTTT to Mr Souleles by post to the Legal Grounds Café address. Mr Souleles says that he did not receive those documents.

36. Mr Souleles says that he first became aware of the award against him by the CTTT on 23 June 2014 when he was served with a creditor’s petition in the Federal Circuit Court of Australia (Aff, 23 June 2015 [16]).

The subsequent enforcement and stay proceedings

37. On 30 September 2013, Ms Todd applied to the Local Court for registration of the NCAT judgment (Local Court proceedings 2013/294312).

37. On 21 February 2014, judgment was entered in the Local Court in favour of Ms Todd for the sum of $60,458.

38. On 23 June 2014, Ms Todd filed a creditor’s petition in the Federal Circuit Court of Australia.

39. On 3 September 2014, NCAT received an application from Mr Souleles to set aside orders 1 and 2 of the orders made on 7 August 2013.

40. On 3 September 2014, NCAT made the following orders:

“1.   The operation of the orders referred to above for the payment of money are stayed until further order.

2.   The Respondent is to make any submissions concerning the application to set aside by 22/09/14, such submissions to be lodged with the Tribunal and provided to the Applicant.

3.   The Applicant is to make any submissions in reply to the Respondent’s submissions by 29/09/14, such submissions to be lodged with the Tribunal and provided to the Respondent.

4.   The time to make application to set aside is extended to 3/09/14.”

42. On 4 September 2014, Mr Souleles filed a notice of motion in the Local Court seeking the following orders:

“1.   The judgment entered in these proceedings, in favour of the plaintiff, Georgina Todd, on 30 September 2013, pursuant to the registration of an order made by default in favour of the plaintiff, Georgina Todd, on 7 August 2013 by the NSW Civil and Administration Tribunal (formerly Consumer Trader & Tenancy Tribunal), file number, HB 12/635136 be set aside.

2.   That the defendant be allowed within 28 days to file a defence.

3.   That the court grant a stay of enforcement in this matter until the application to set aside judgment is decided.

4.   That the court grant a stay of enforcement of this matter until the hearing of the application filed in the NSW Civil and Administration Tribunal to set aside the order made on 7 August 2013 by default is heard.

5.   That the application for a stay of enforcement be dealt with on an urgent ex parte basis, in chambers.

6.   That costs of this motion be costs in the cause.”

43. The notice of motion was listed before the Local Court for hearing on 9 October 2014 at 9.30 am. The Local Court made the following orders:

“EX PARTE STAY OF PROCEEDINGS REFUSED

(1)   Order over 12 months old.

(2)   Defendant aware of order some 10 weeks prior to Motion being lodged with Court and Set aside Application filed with NCAT.

(3)   No enforcement action pending in the Local Court over which this court could exercise control.

**Applicant to Serve Motion & Affidavit as required by Rule 18.2 UCPR**”

44. On 15 September 2014, the NCAT Tribunal Member ordered:

“1.   The operation of the orders referred to above for the payment of money are stayed until further order.

2.   The Respondent is to make any submissions concerning the application to set aside by 22/09/14, such submissions to be lodged with the Tribunal and provided to the Applicant.’

3.   The Applicant is to make any submissions in reply to the Respondent’s submissions by 29/09/14, such submissions to be lodged with the Tribunal and provided to the Respondent.

4.   The time to make the application to set aside is extended to 3/09/14.”

45. On 23 September 2014, the NCAT Tribunal Member considered the application to set aside the orders made on 7 August 2014 and concluded:

“… I am satisfied that the application is fundamentally flawed for the reasons set out below and that it should be dismissed without any need for the set aside respondent to file documents in reply.

…

The matter … was never an NCAT decision and so the set aside provisions under the NCAT Regs do not apply.

The set aside application is dismissed pursuant to NCAT Act sS55(1)(b).

The stay on the original orders shall continue for a further 14 days but will be lifted after that time if an application pursuant to the CTTT Act s68 has not been filed.”

46. On 25 September 2014, Mr Souleles made a further application to set aside the order made on 7 August 2014.

47. On 26 September 2014, Tribunal Member Howe considered the NCAT application to set aside and made the following orders:

“1.   The application is dismissed because it is misconceived.

2.   The stay order made in matter number HB 14/44218 on 19/9/14 is lifted.

Reasons:

This is an application under s 68 of the Consumer, Trader and Tenancy Act. The CTTT regulation 25 prohibits a person making an application if the amount disputed exceeds $30,000. The order made by Consumer, Trader and Tenancy on 7/8/13 was for $60,374.00”

48. On 26 September 2014, NCAT wrote to Mr Souleles advising that the stay had been lifted. This letter was addressed to his home address. This letter was also sent to Mr Souleles care of his solicitor N J Papallo Lawyers.

Was there a denial of procedural fairness or jurisdiction error?

49. It is convenient here that I set out some more relevant provisions of the CTTT Act and regulations.

Notice provisions in the CTTT

50. Section 25 of the CTTT Act provides for notice to be given of proceedings:

“25   Notice of proceedings

(1)   If any proceedings are to be determined by a hearing, the Registrar must cause notice of the time and place that is fixed for the hearing to be given to each party in the proceedings.

(2)   If a party who has been notified under subsection (1) fails to attend at the time and place notified, the proceedings may be held in the absence of the party.

…

the Registrar must cause notice of the time and place that is fixed for the hearing to be given to … and any other person the Registrar considers appropriate and any other person prescribed by the regulations for the purposes of this subsection.”

51. Section 35 of the CTTT Act provides for each party being given the opportunity to present its case:

“35   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.”

52. Section 35 provides that the CTTT Act “must ensure” that each party is given “a reasonable opportunity” to present its case. There are provisions which 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 & Ors [2005] NSWCA 177 at [105] and [106].

53. The provision of notices is governed by s 78 of the CTTT Act which relevantly provides:

“78   Notices, service and lodgment of documents

(1)   For the purposes of this Act, a notice or document may be given to a person (and a document may be served on a person):

(a)   in the case of a natural person - by:

(i)   delivering it to the person personally, or

(ii)   leaving it at, or by sending it by post to, the residential or business address, or other address for service, of the person that was last known to the person giving or serving the document, or

…

(3)   Nothing in this section affects the operation of any provision of any law or the rules of a court authorising a document to be served in a manner not provided for by this section.

(4)   The regulations may:

(a)   provide for additional means of serving, giving or lodging any notice or document, and

(b)   provide that a notice or document of a class specified by the regulations be served, given or lodged only in the prescribed manner.”

54. Clause 30 of the Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW) (“CTTT Regulation”) provides for the consequence of a failure to attend the hearing.

55. Clause 30 of the CTTT Regulation relevantly provides:

“30   Ex parte proceedings

(1)   The Tribunal may proceed to hear a matter in the absence of a party who has failed to attend the hearing:

(a)   if it is satisfied that notice of the hearing was duly served on the party, or

(b)   if:

(i)   being satisfied that service of notice of the hearing has been duly attempted, or

(ii) having given directions under clause 50 (6),

the Tribunal considers that justice requires that the matter be dealt with in the absence of the party concerned.

(2)   If a matter is adjourned by the Tribunal in the absence of a party, the Registrar is to give notice of the time and place of the adjourned hearing to the absent party. If the party who is so notified fails to attend the hearing, the matter may be dealt with in the absence of the party.”

56. Clause 50 of the CTTT Regulation relates to the service of documents. It relevantly provides:

“50   Service of documents

(1)   An application for the purposes of any proceedings must be served on each of the other parties within a reasonable time before the return date endorsed on the application by the Registrar or in accordance with directions under subclause (6).

(2)   Service of a summons is to be effected:

(a)   personally, or

(b)   …

(3) Service of any other document may be effected in any manner provided by section 78 of the Act or in any of the following ways:

(a)   if the person has an address for service on record with the Registry:

(i)   by pre-paid ordinary post addressed to the person’s address for service, or

…

(b)   in such other manner as may be directed by the Chairperson, a Deputy Chairperson or the Registrar in a particular case.

(4)   Service by post is taken to have been effected on a person at the end of the fourth working day after the date on which the document was posted to the person.

…”

57. Finally, s 76 of the Interpretation Act 1987 (NSW) relevantly reads:

“76   Service by post

(1)   If an Act or instrument authorises or requires any document to be served by post (whether the word ‘serve’, ‘give’ or ‘send’ or any other word is used), service of the document:

(a)   may be effected by properly addressing, prepaying and posting a letter containing the document, and

(b)   in Australia or in an external Territory - is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted, and

…”

58. The operation of these notice provisions in relation to the CTTT have been discussed in Brennan v New South Wales Land and Housing Corporation (2011) 83 NSWLR 23; [2011] NSWCA 298; David Harris & Deidre Harris t/as Wellington Concrete v Mayne [2011] NSWSC 1551; and Blue Haven Pools & Spas Pty Ltd v Cunningham & Anor [2011] NSWSC 1435.

59. Section 25 of the CTTT Act does not provide a mechanism for giving notice and does not deem notice to have been given where a particular procedure has been followed. Section 78 of the CTTT Act provides for a means of service of a document but does not provide for determining if service has been effective. Clause 50(4) of the CTTT Regulation is a deeming provision but is subject to the provisions of any other Act. Section 76 of the Interpretation Act raises a rebuttable presumption of service at a stated time after the date on which the document was posted (see Brennan, Giles JA at [7]-[8]; Basten JA at [50]).

60. As I stated in Austral Brick Co Pty Ltd v Rami El Hayek t/as RCV Stoneworks [2013] NSWSC 571 at [43] to [45] the statutory provisions require that firstly, under s 25(1) of the CTTT Act the Registrar must cause notice of the time and place for the hearing to be given to each party to the proceedings. If the parties have been so notified and one fails to attend, s 25(2) allows the proceedings to be held in their absence. Section 78 provides for service of notice to a person by post. Clause 30 of the CTTT Regulation provides that if a party fails to attend, the Tribunal may proceed to hear the matter if it is satisfied that the notice of hearing was duly served or service has been duly attempted and it considers that justice requires that the matter be dealt with in their absence.

61. In Harris v Mayne, Davies J at [36] held that the requirement of s 25(1) is mandatory and proceedings may only be held in the absence of a party under s 25(2) if the requirements of s 25(1) have been complied with. If notice has not been given then neither s 25(2) nor clause 30 is engaged and if clause 30 was engaged, there was no evidence that the Tribunal had satisfied itself that the notice of hearing had been duly served on the party or had been attempted as required by clause 30(1).

62. It has been established in Blue Haven that the evidence of a copy of the notice on file is insufficient to establish that notice of the hearing had been duly served as required by s 25(1). Adams J at [30] held that the existence of a copy of the notice of hearing on the Tribunal’s file raised the distinct possibility that it was posted. However, this did not by itself establish the fact of it being posted as being more probable than not. Adams J was not satisfied that the notice was posted and the Member could not have concluded otherwise simply because a copy of the notice was placed on the file. It did not appear that the Member had considered whether justice required the matter to proceed with regards to Blue Haven (Regulation 30(1)), the party that had failed to appear, and as a result, the requirements of s 35 and Regulation 50(1) were not satisfied. Mere proof of posting the notice would not by itself have resolved the question of whether it was just to proceed despite Blue Haven’s absence (at [31]).

63. On 7 August 2013, at the hearing the Tribunal Member stated that Mr Souleles did not appear at the hearing of the matter and no reasonable explanation for the non appearance has been provided to the Tribunal. The Tribunal Member formed the view Mr Souleles has declined to participate in the hearing of the matter and had failed to file any evidence in accordance with the directions issued by the Tribunal. The Tribunal Member was satisfied that a hearing notice was sent to the address provided by Mr Souleles and that he previously appeared before the Tribunal after notices of hearing were sent to his business address.

64. The Tribunal Member turned his attention to whether it was just to proceed to the hearing and stated that having regard to the previous non appearances and as no evidence had been filed, he was satisfied that the justice of the case required that the hearing proceed that day.

65. Counsel for Mr Souleles submitted that it was only when the CTTT emailed Mr Souleles that he received notices sent by them. I accept that the CTTT had both the Legal Grounds Café address and the email address, supplied by Ms Todd in the application, on its file. Counsel for Mr Souleles submitted that on 7 June 2013, when the matter was listed for hearing and Mr Souleles did not appear, the Tribunal Member should have made further enquiries as to whether Mr Souleles had been advised of the hearing date by checking the CTTT file or requesting Ms Todd’s solicitor or the registry staff to telephone Mr Souleles.

66. According to counsel for Ms Todd, if Mr Souleles truly did not understand the orders, it was open to him to obtain legal representation, and further that Mr Souleles was content to receive any notice as to further hearing dates at the address appearing in the notice of directions hearing. In other words, he did not advise the registry staff of his postal address for service of notices.

67. Further, counsel for Ms Todd submitted that the failure by Mr Souleles to obtain legal representation (having regard to his evidence that he did not understand the orders of the Tribunal), his failure to appear in the matter and failure to adduce any evidence, and his failure to make enquiries with the Tribunal registry as to the status of the matter demonstrates that Mr Souleles was disinterested in (but not that he was unaware of) the proceedings. Mr Souleles’ interest only truly became enlivened when judgment was sought to be enforced against him.

68. Counsel for Ms Todd submitted that there was adequate notice provided to Mr Souleles of the hearing date for the purposes of s 25 of the CTTT Act and it follows that there is no jurisdictional error demonstrated.

69. Both parties relied on Austral Brick Co. Counsel for Ms Todd sought to distinguish the facts. In Austral Brick Co, the focus at hearing was not on whether the address was correct but whether it was possible that the Registrar had sent some notices but not all notices. It was also clear in Austral Brick Co that Austral had intended to defend the proceedings. Ms Todd submitted that in the present case, there are no documents in the CTTT proceedings which would allow this Court to be satisfied that Mr Souleles ever intended to defend the proceedings or that he had any defence. Also, unlike in Austral Brick Co this Court is not faced with reconciling the difficulty that some notices were received and others not, since Mr Souleles only did not acknowledge receipt of any of the CTTT notices sent to the Legal Grounds Café. Mr Souleles does however acknowledge receipt of the notices sent to his email address. Further, counsel for Ms Todd argued that in the present case, the Tribunal Member had satisfied himself that the notice was in fact sent to Mr Souleles, as opposed to an inference drawn from a document on the CTTT file or from the Registrar’s usual practice. He submitted that it follows that s 25 of the CTTT Act is satisfied and that the Tribunal Member acted within jurisdiction.

70. In my view, Mr Souleles was aware that the application and notice of the first directions hearing recorded an address, namely, c/- Legal Grounds Café, that was not in fact his residential address. Despite his evidence to the contrary (that I do not accept), he took no steps to advise the CTTT of his actual residential address. The address for Mr Souleles at c/- Legal Grounds Café falls with the “other address for service” that was last known to the person [CTTT] serving the document (see s 78 of the CTTT Act). The CTTT complied with its obligation to post the notice of hearing to c/- the Legal Grounds Café address. The statutory provisions do not provide that where an email address is given the documents must be forwarded to that email address. The Tribunal Member was satisfied that the notice of hearing was duly served. He also considered that justice required that the matter be dealt with in Mr Souleles absence (Clause 50(3)(a)(i) and Clause 30). The Tribunal Member has acted in accordance with his statutory duties and he has afforded procedural fairness.

71. The decision of the Tribunal Member dated 7 August 2013 is not vitiated by jurisdictional error. Nor has there been a denial of procedural fairness. The result is that the summons filed 6 November 2014 is dismissed.

72. Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant’s costs on an ordinary basis as agreed or assessed.

The Court orders that:

(1)   The summons filed 6 November 2014 is dismissed.

(2)   The plaintiff is to pay the defendant’s costs on an ordinary basis as agreed or assessed.

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Decision last updated: 02 July 2015