Sullivan v Hudson

[2004] NSWSC 839

CITATION:

Sullivan v Hudson [2004] NSWSC 839

HEARING DATE(S):

8 September 2004

JUDGMENT DATE:

14 September 2004

JURISDICTION:

Common Law - Administrative Law List

JUDGMENT OF:

Master Harrison

DECISION:

(1) The orders of Tribunal Member Phillipps dated 7 May 2004 are affirmed; (2) The summons filed 1 July 2004 is dismissed; (3) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS:

Appeal decision of CTTT - mechanical works - installation of clutch - rehearing

LEGISLATION CITED:

Consumer, Trader & Tenancy Tribunal Act 2001 (NSW) - s 67

PARTIES :

Owen Noel Sullivan
(Plaintiff)

Adam Stuart Hudson t/as Engadine Area Mobile Mechanic
(First Defendant)

Consumer, Trader & Tenancy Tribunal
(Second Defendant)

FILE NUMBER(S):

SC 30051/2004

COUNSEL:

N/A

SOLICITORS:

Mr O N Sullivan
(Plaintiff in person)

Mr A S Hudson
(Defendant in person)

LOWER COURTJURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	MV 04/12592
LOWER COURT JUDICIAL OFFICER :	Senior Member R Phillipps

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

MASTER HARRISON

TUESDAY, 14 SEPTEMBER 2004

30051/2004 - OWEN NOEL SULLIVAN v ADAM STUART
HUDSON t/as ENGADINE AREA MOBILE
MECHANIC & ANOR

JUDGMENT (Appeal decision of CTTT – mechanical
works – installation of clutch - rehearing)

1 MASTER: By summons filed 1 July 2004 the plaintiff seeks to appeal the decision of the Consumer, Trader and Tenancy Tribunal (CTTT) dated 31 May 2004, No. MV 04/12592. The plaintiff relied on his affidavit. Neither the plaintiff nor the defendant were legally represented. Mr Sullivan was the defendant in the Tribunal but for the purpose of these proceedings and for convenience I shall refer to him as the plaintiff. The second defendant the CTTT has filed a submitting appearance.

2 Section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the Act) allows for an appeal to be made to this court on a question of law. The onus lies on the plaintiff to demonstrate that there has been an error of law. Section 67(3) of the Act provides that after deciding the question of the subject of an appeal the court may, unless it affirms the decision of the Tribunal on the question that should have been made by the Tribunal, remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal.

3 At the outset, it is helpful to set out some of the provisions of the Act. The function of the Tribunal is 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 27(3)).

4 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 and the Tribunal may inform itself on any matter and in such a manner 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 of the Act 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 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 (s 51).

Grounds of appeal

5 The plaintiff’s grounds of appeal are set out in the plaintiff’s affidavit. The plaintiff submitted that the Tribunal Member not just erred in judgment, but erred “quite a bit” by not studying all the evidence from both parties that had been presented to the Tribunal. In particular, the plaintiff submitted that the Tribunal Member ignored the plaintiff’s claim that the clutch was not to the manufacturer’s specification and the clutch was only suitable for a 4WD not a 2WD. The plaintiff made other wide-ranging submissions such as prosecuting the defendant under the Motor Dealers Act 1974 (NSW) but these submissions did not seem to relate to the Tribunal Member’s decision.

Tribunal proceedings

6 On 31 May 2004 Senior Member R Phillipps heard the matter. The plaintiff sought orders that he did not have to pay the amount of $800.00, which was an amount outstanding and owed by him to the defendant for mechanical works. The mechanical works were the supply and installation of a clutch kit to a Subaru motor vehicle owned by the plaintiff. The Senior Member made an order that the plaintiff was to pay to the defendant the sum of $800.00 on or before 18 June 2004.

7 The Senior Member provided written reasons for his decision and stated:

“I asked the applicant three times to tell me precisely what he said when he arranged with the respondent to have the new clutch installed. At no stage in his verbal evidence he did not say anything about asking that the Subaru brand clutch be installed. He had, however, made the allegation in his letter to Subaru Australia.
Having had this discrepancy drawn to his attention, Mr. Sullivan then said that he had asked for a Subaru clutch to be installed.
The respondent’s evidence was that he was asked and agreed to remedy a problem in the vehicle. He said that he would take the vehicle away, examine it, and contact the applicant. He did so, and he installed a suitable clutch kit. The respondent was most clear and most emphatic in his evidence that at no stage was he asked to fit a Subaru clutch.
I note that the applicant has, in relation to the allegedly nature of the clutch provided inconsistent and misleading evidence. I do not know whether this is because he is dishonest or simply because he has difficulty understanding clear English, or for some other reason. His inability to be accurate makes it harder for me to accept his evidence in relation to other matters.
I am satisfied that there is no evidence before me that would suggest that the clutch provided was unsuitable for the vehicle to which it was fitted.
In relation to the claim that the applicant specified and the respondent agreed to supply a Subaru clutch, I do not accept the evidence of the applicant. I prefer the evidence of the respondent. There are a number of reasons for these. First, I have already indicated that I have some hesitation about accepting uncorroborated evidence form the applicant.
Second, had a Subaru clutch been requested there would be no reason for the respondent not to do so and set a price accordingly (that is assuming that a Subaru clutch would be more expensive).
The applicant has to prove the facts for which he contends. He has not done so.
Accordingly, pursuant to section 8(2) of the Consumer Claims Act1998 I ordered the applicant to pay the money he owes to the respondent and otherwise dismissed the application.”

8 Thus, the Tribunal Member based his decision on the credit of the parties and a witness, Mr Tony Robinson who was called by the plaintiff. He did not find Mr Sullivan a credible witness. The Tribunal Member was entitled to do so.

9 The plaintiff is claiming that the clutch that was installed in his vehicle was only suitable for a Subaru 4WD but his Subaru is a 2WD and the Tribunal Member erred in relation to this issue. The plaintiff called Mr Tony Robinson an employee of Subaru (Australia) Pty Limited who was not a mechanic but a customer relations officer. Mr Robinson’s evidence was that there had been some confusion about whether the clutch was for a 2WD or a 4WD motor vehicle. Mr Robinson was satisfied from appraisal of the specifications that it was a 2WD clutch and could not see why the clutch would be unsuitable. The Tribunal Member stated that he was satisfied that the confusion about 2WD and 4WD clutches related to an error in drafting of a parts manual used by the respondent. Thus, the Tribunal Member accepted the evidence of the plaintiff’s witness Mr Robinson, which he was entitled to do. The Tribunal Member has not erred at all. There is no error of law.

Application for rehearing

10 The plaintiff did not refer to any error of law in relation to the rehearing in his oral submissions. The only reference in his affidavit was that, as he understood it, the application for rehearing had to be utilised first and he did so.

11 On 16 June 2004 the plaintiff lodged an application for a rehearing. On 22 June 2004 the application for rehearing was refused. In considering the plaintiff’s application the Tribunal must be satisfied that the plaintiff had suffered a substantial injustice because (a) the decision of the Tribunal in the completed proceedings was not fair and equitable, or (b) the decision of the Tribunal was against the weight of evidence, or (c) significant new evidence has arise (being evidence that was not reasonably available at the time the completed proceedings were being hear) – see s 68 of the Act.

12 On 23 June 2004 Deputy Registrar L Clegg in his reasons stated:

“The Tribunal’s decision is based on an evaluation of competing evidence that required making findings as to credit. The Presiding Member was best placed to test that evidence.
Having made a finding as to credit, the Presiding Member came to a decision that was clearly open to the Tribunal on the evidence.
Dissatisfaction otherwise with the Presiding Member’s findings does not amount to substantial injustice.
APPLICATION FOR A REHEARING NOT GRANTED.”

13 There is no error of law arising from the determination of the rehearing. The appeal is dismissed. The orders of Tribunal Member Phillipps dated 7 May 2004 are affirmed. The summons filed 1 July 2004 is dismissed.

14 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs as agreed or assessed.

Orders

15 The Court orders:

(1) The orders of Tribunal Member Phillipps dated 7 May 2004 are affirmed.

(2) The summons filed 1 July 2004 is dismissed.

(3) The plaintiff is to pay the defendant’s costs as agreed or assessed.
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Last Modified: 09/20/2004