Berou v CTTT & Anor

(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." 9 Section 65(3) however provides: "(3) 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." 10 The plaintiff seeks relied under s 65(3)(b) of the Act. 11 Prerogative relief under s 65(1)(a) of the Act is discretionary and may be refused where there has been delay on the part of the applicant or where it can be said that the applicant has waived or acquiesced in the validity of the decision (Italiano v Carbone [2005] NSWCA 177 per Basten JA at [117]; Maconachie v Kullenburg & Ors [2005] NSWCA 294 per McColl JA (Giles JA agreeing) at [59]).

The Tribunal generally 12 At the outset, it is helpful to set out some of the provisions of the Act. 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). I shall discuss ss 28 and 35 in more detail later in this judgment. 13 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 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 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).

Procedural fairness in Tribunal 14 Section 28 of the CTTT Act reads: "28 Procedure of Tribunal generally

(1) The Tribunal may, subject to this Act, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness.

(3) 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.

(4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand: (a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings.

(5) The Tribunal … (g) may dismiss any proceedings if the applicant fails to attend a hearing, …" 15 Section 35 of the Act reads: "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." 16 Section 35 provides that the CTTT "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 at [105] and [106]. 17 There are three areas where the plaintiff submitted that he was denied procedural fairness, firstly, that he was not given a reasonable opportunity to call evidence from two witnesses; secondly, that the Tribunal Member did not take such steps to ensure that the plaintiff understood the nature of his quantum meruit claim; and lastly, that the Tribunal Member did not grant an adjournment.

Tribunal Member's decision 18 The Tribunal Member in his reasons for decision at [6]-[7] stated: "6. Shortly after the Contractor began to present his case (as set out in subparagraph 11.f below), because the Contractor gave evidence that the residential building work he carried out was not done pursuant to a written contract, having regard to the maters (sic) set out in subparagraph 5.b.ii above and the amount sought by the Homeowner by his application, the Tribunal: a. informed the Contractor than if there was no written contract, then to pursue his claim, he could not rely on any verbal contract and would need to present evidence to prove [in order to succeed on a quantum meruit and quantum valebant claim]: i. that the Homeowner requested the work and materials and accepted the same; ii. that the work and materials were provided and were appropriate; and, iii. the value of the work and materials; and, b. offered the Contractor the opportunity to be legally represented and to adjourn the proceedings until he had the opportunity to obtain such representation.

Notwithstanding the matters set out at subparagraphs a and b above, the Contractor stated that he wished to proceed with the hearing.

7. Both parties were given an opportunity to present their case, ask questions to test the other party's evidence and make submissions."

Whether plaintiff was given a reasonable opportunity to call witnesses 19 Mr Berou was unrepresented at the proceedings before the Tribunal. Having first arrived in Australia from Syria he says that he has a very limited understanding of English and cannot read or write in English with any great proficiency. 20 Mr Berou says the interpreter provided at the hearing before the Tribunal on 1 June 2006 spoke a Sudanese dialect of Arabic which Mr Berou did not fully understand. This is disputed. Mona Saad deposed that during the course of her work on her home she had always spoken to Mr Berou in Arabic. In her opinion Mr Berou's interpreter appeared to be Egyptian, was clearly understandable in his translations both from Arabic to English and English to Arabic at the Tribunal. Further, she says that she did not hear any errors in the interpreting, and nor does she remember Mr Berou making any complaint about the interpreter, nor any misinterpretation being made. She does not recall any attempt by Mr Berou to get the two men with him in court to give evidence. The transcript does not record Mr Berou asking the Tribunal Member if he could call witnesses to give evidence. 21 I have carefully read the transcript and it is my view that Mr Berou was able to present a fairly detailed case by the use of an interpreter. Sometimes he answered questions in English (as denoted in the transcript) but the majority of time he used the interpreter. I cannot discern any difficulties he had with what the Tribunal Member was asking him. Mr Berou was able to present his case. 22 Mr Berou deposed that he made a request to call Kousay Naamo and Fadiy Youssev as witnesses, but he was not provided an opportunity to call them. They were present at the Tribunal on the day of the hearing. He asserts that their evidence would have been of great assistance to his case. Mr Naamo, who was employed by Mr Berou at the time, would have given evidence that the alleged spray painted areas were in fact powder coated, and that some of the items on the job site could have been rectified. He would have verified that such an offer had been made and declined by Mr Saad. Mr Youssev would have given evidence that the installation was carried out as instructed by Mrs Saad. Further, Mr Berou deposed that Mr Youssev would have confirmed that Mr Saad had not been on site at the time and did not discuss any of the particulars of the job with him. 23 Mr Berou was cross examined on this issue at the hearing of this appeal. At first he agreed that what he said in his affidavit was correct. That is, that he was not provided with an opportunity to call his witnesses even though he requested that he be allowed to call them (t 2.48). He gave evidence that he told the Tribunal Member that he had witnesses. Later he said that he did not know that he could request the witnesses and he did not request to call them directly. Finally, in re examination he said that he said to the interpreter "I have witnesses" and to tell the Tribunal Member that he had witnesses. 24 As there is no record of his request to call witnesses in the transcript, it is disputed by Mrs Saad and Mr Berou's evidence on this topic is inconsistent, it is my view that the Tribunal Member was not informed that Mr Berou wanted to call witnesses to give evidence. I am not persuaded that Mr Berou asked the interpreter to tell the Tribunal Member that he wanted to call witnesses. If Mr Berou had wanted to call these witnesses, he was in a position to make such a request to the Tribunal Member. He did not choose to do so.

The quantum meruit claim and whether an adjournment should have been granted 25 The plaintiff submitted a reading of the transcript of the proceedings before the CTT reveals that the plaintiff had very little knowledge about how to prosecute his application and defend the cross application. The plaintiff's Counsel highlighted that plaintiff was not even aware that the absence of a written agreement between himself and the second defendant precluded him from claiming damages or to enforce any other remedy in respect of breach of contract pursuant to s 10 of the Home Building Act 1989 (NSW) (t 12.2). In oral submissions the plaintiff's Counsel stated that while procedural directions were given in relation to Mr Berou's claim none were given in relation to the cross application. 26 The plaintiff submitted that the transcript reveals that the Tribunal member did not make it clear that there were three crucial elements to a quantum meruit claim. He further submitted that the Tribunal Member should have informed him, in no uncertain terms, that he simply did not have any evidence in support of a quantum meruit claim. 27 The following are relevant portions of the transcript are relevant to both issues of the quantum meruit claim and whether an adjournment should have been granted. They are: MEMBER: "Mr Saad has filed an application seeking that you pay him $40,000. Right, no directions have been made with respect to the exchange of documents. There may be documents. Are you ready to proceed to answer that claim today?" MR BEROU: Yes MEMBER: "You understand that if you say yes, you are ready to proceed I will go on to hear the matter and the applicant will more than likely give me documents in support of his case." MR BEROU: "Yes." MEMBER: "Those documents, most of it appears were attached to the application. If you need time to prepare a reply to those documents, for example, to obtain an expert's report, then you should consider the position now, because if I start hearing the matter I will not give you time to obtain such a report. I will proceed on whatever evidence is available today. So what I am asking you is do you require time to prepare a reply to this claim that is being brought by the applicant on 21 April?" MR BEROU: "Go ahead." … MEMBER: "Before you go any further, did you have a written contract for this work?" MR BEROU: "No, no." MEMBER: "Well, I hope you don't take offence at what I'm about to say, Mr Berou but it appears to me that you would benefit from legal representation. The reason being that in order to set out your case in the absence of a written agreement, contrary to the provisions of the Home Building Act, you have to show to me why or you have to show to the Tribunal firstly why an order should be made in you favour given that no written contract has been entered into in breach of the Act. And then after you have done that you have to show me that the work was requested, that the work was done, and what the value of the work is. Also there's provisions in the Home Building Act with respect to insurance and it may - did you obtain any home warranty insurance for this work you were going to do?" MR BEROU: "I have insurance that covers me and the co-workers that work with me, the labourers that work with me." MEMBER: "I believe you would benefit from legal advice. I saw that previously you were represented in the Local Court by Mr Fegali, Fegali from Prestige solicitors. Would you like to obtain legal representation?" MR BEROU: "No." MEMBER: "No, not now, we'd have to come back another day, because I don't think you are presenting your case as strongly as you could and that could be because of language difficulties and you don't understand the law that relates to building activities, residential building work. And I want to give you the opportunity to present your case at its strongest." INTERPRETER: "I'm just asking if he's keeping track of what I'm saying." MEMBER: "What do you think?" ME BEROU: "The legal representation would be through the Tribunal or I have to get my legal representation?" MEMBER: "You would have to get your legal representation. The Tribunal won't provide it to you. I'm giving you the opportunity to do that." MR BEROU: "Shouldn't we - should I tell my story to the end and then see what I'm forced to there after I've finished telling my side of the story?" MEMBER: "On what I've heard so far you don't understand, it appears to me, what you need to show the Tribunal to succeed in your claim. Moreover, given that the applicant, or rather Mr Saad, is seeking $40,000 from you it may be prudent for you to carefully consider your position. If you proceed further without legal representation - which you can, it's your choice - once I've heard the evidence I go to a decision and then you will be abide by that decision." MR BEROU: "Yes." … MEMBER: "Mr Berou, the reason I want to extend to you every opportunity to present your case properly is because the claim made by the other side against you is substantial. Right? Have you received a copy of the application from Mr Saad?" MR BEROU: "Yes." MEMBER: "He's claiming $40,000." MR BEROU: "Yes, I received that." MEMBER: "Unless you are very well prepared, it could be an outcome of these proceedings that an order is made against you for that amount. I haven't heard all the evidence yet but that's a possibility. That's why I want to make sure that you are well prepared to answer that matter." MR BEROU: "Yes.* Providing that there is a defect in my work as Mr Saad claims I'm ready to go ahead." MEMBER: "So you want to proceed today without legal presentation?" MR BEROU: "Like, hypothetically speaking, if I tell my side of the story to the end, could then after the decision appeal the decision if it's not again - if it's not in my favour?" … MEMBER: "Do you want to proceed today or not? MR BEROU: "Yes." * Denotes not through interpreter 28 On 1 May 2006 (prior to the hearing date of 1 June 2006), the Tribunal Member explained to Mr Berou that the directions made on 19 April 2006 had not given him a chance to prepare his case in reply to the homeowners' application and notwithstanding that warning, Mr Berou stated that he wanted to proceed. Thus, prior to the hearing date Mr Berou indicated that he wanted to matter to go to hearing. 29 It is my view that at the hearing in the Tribunal the Tribunal Member could not have done more. The Tribunal Member explained to the plaintiff the elements of a quantum meruit claim and that on what he had heard so far he [the plaintiff] did not understand what he needed to show the Tribunal to succeed in his claim. The Tribunal Member explained that if the plaintiff proceeded further without legal representation and heard the evidence, the decision would be final. 30 Despite being advised on a number of occasions that he could obtain an adjournment Mr Berou elected not to take one. In these circumstances the Tribunal Member is not obliged to force a plaintiff to take an adjournment over his continued election not to take one. The Tribunal Member could do no more. 31 As I stated in Milstern Retirements Services Pty Ltd v Carton & Ors [2006] NSWSC 937 it is not the role of the Tribunal Member to ensure that the plaintiff's case is prepared and presented at its highest. Mr Berou chose to follow a particular course which ultimately did not serve him well. 32 There was no denial of procedural fairness. There is no error of law. The decision should not be quashed. 33 The appeal is dismissed. The decision of Tribunal Member Marzilli dated 2 August 2006 is affirmed. The amended summons filed 19 June 2007 is dismissed. 34 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the second defendant's costs as agreed or assessed.

(2) The decision of Tribunal Member Marzilli dated 2 August 2006 is affirmed.

(3) The amended summons filed 19 June 2007 is dismissed.

(4) The plaintiff is to pay the second defendant's costs as agreed or assessed. **********

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