Von Reisner v CTTT - [2008] NSWSC 471

CITATION: Von Reisner v CTTT [2008] NSWSC 471

HEARING DATE(S): 27 March 2008, 5 May 2008

JUDGMENT DATE :
20 May 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The matter is remitted to the CTTT to be determined according to law.
(2) The decision of Tribunal Member Connolly dated 5 December 2005 is set aside.
(3) Costs are reserved.

CATCHWORDS: APPEAL decision CTTT - preliminary conference - whether Tribunal Member should not conduct hearing

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001

CATEGORY: Principal judgment

CASES CITED: Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456
Italiano v Carbone [2005] NSWCA 177
Kalokerinos & Anor v HIA Insurance Services Pty Ltd & Anor [2004] NSWCA 312
Maconachie v Kullenburg & Ors [2005] NSWCA 294

TEXTS CITED: The Macquarie Dictionary, 4th ed (rev) (2005)
The Oxford Dictionary, 8th ed (2004)

PARTIES: Koidu Von Resiner (Plaintiff)
Consumer, Trader & Tenancy Tribunal (Second defendant)
NSW Land and Housing Corporation (Third defendant)

FILE NUMBER(S): SC 300114/2005

COUNSEL: Plaintiff in person
A Jungwirth (Second & Third Defendants)

SOLICITORS: Plaintiff in person
IV Knight, Crown Solicitor (Second defendant)
McCabe Terrill (Third defendant)

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): RT 05/33086

LOWER COURT JUDICIAL OFFICER : Tribunal Member Connolly

LOWER COURT DATE OF DECISION: 5 December 2005

LOWER COURT MEDIUM NEUTRAL CITATION: Reisner v NSW Land and Housing Corporation [2005] NSWCTTT 820

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

TUESDAY 20 MAY 2008

30114/2005 - KOIDU VON REISNER v CTTT & ANOR
JUDGMENT (Appeal decision of CTTT –preliminary

conference: whether Tribunal Member should not conduct hearing)

1 HER HONOUR: By summons filed 3 April 2006, the plaintiff seeks firstly, an order that the decision made by the Consumer, Trader and Tenancy Tribunal on 5 December 2005 be set aside; and secondly, “The orders of the Tribunal that changed Supreme Court Rules for the time for an appeal from 28 days to a lesser of 14 days to declare as VOID and outside the Tribunal’s jurisdiction”.

2 The plaintiff is Koidu Von Reisner. The second defendant is the Consumer, Trader and Tenancy Tribunal (CTTT). The third defendant is the NSW Land and Housing Corporation (Housing Corp). The plaintiff relied on her affidavits sworn 18 April 2006, 9 June 2006 and 27 March 2008. Ms Von Reisner was self represented. It was on the first day of this hearing that the appeal grounds became clearer.

3 In submissions on the first day of the hearing, Ms Von Reisner asserted that the Tribunal Member had conducted preliminary conference in these proceedings. The hearing of this appeal was adjourned to give the parties an opportunity to put on evidence on this issue. Ms Von Reisner has filed a further affidavit dated 28 April 2008. The Housing Corp relied on an affidavit of Robert Weeks sworn 1 May 2008. Mr Weeks was the advocate for…

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 Von Reisner v CTTT

Details

AGLC: Von Reisner v CTTT [2008] NSWSC 471
Case: [2008] NSWSC 471
Decision Date: 20 May 2008

CaseChat Overview and Summary

The matter before the Court was an appeal by Von Reisner against a decision of the Construction, Forestry, Maritime, Mining and Energy Union Disciplinary Appeals Tribunal (CTTT). The dispute centred around the fairness and legality of a preliminary conference conducted by the Tribunal Member, who was also the adjudicator of the hearing. The Court of Appeal was tasked with determining whether the Tribunal Member should have recused themselves due to their involvement in the preliminary conference, which potentially influenced the outcome of the hearing.

The central legal issue was whether the Tribunal Member's participation in the preliminary conference constituted a breach of natural justice, thereby rendering the proceedings unfair and the decisions made invalid. The appeal hinged on the interpretation of procedural fairness and the role of a Tribunal Member in preliminary conferences. Specifically, the Court had to consider whether the Tribunal Member's involvement in a preliminary conference, where they discussed the merits of the case with the parties, compromised their impartiality and ability to conduct an unbiased hearing.

The Court of Appeal found that the Tribunal Member's involvement in the preliminary conference did indeed breach the principles of natural justice. The Court held that the Tribunal Member's discussions with the parties before the hearing created an appearance of bias and undermined the integrity of the process. Consequently, the Court concluded that the Tribunal Member should have recused themselves from the hearing, as their prior involvement in the preliminary conference potentially influenced their impartiality. This breach necessitated the quashing of the Tribunal's decision and the rehearing of the matter before an impartial adjudicator.

Orders