Blackington Pty Limited & 1 Ors v Leonard Hogg & 2 Ors

CATCHWORDS : The ambit of s67 - denial of procedural fairness - amendment without notice - order for compensation for stress and anxiety - application of s16 of Civil Liability Act.

Administrative Decisions Tribunal Act 1997 (NSW) LEGISLATION CITED : Civil Liability Act 2002 (NSW) Consumer Trader and Tenancy Tribunal Act 2002 (NSW) Residential Parks Act 1998 (NSW)

Baltic Shipping v Dillon (1992) 176 CLR 344 Commissioner for Fair Trading v Tschannen [2004] NSWSC 67 CASES CITED : Grygiel v Baine [2005] NSWCA 218 Kalokerinos v HIA Insurance Services P/L [2004] NSWCA 312 Martin's Camera Corner Pty Limited v Hotel Mayfair Ltd (1976) 2 NSWLR 15 Owners-Strata Plan No.53094 v Fair Trading Administration Corporation & 1 Ors [2007] NSWSC 249

Blackington Pty Limited Caraco Pty Limited PARTIES : Leonard Hogg Maria Hogg Consumer, Trader and Tenancy Tribunal

COUNSEL : Mr S. B. Docker (Pl) Mr N. Eastman (1st & 2nd Defs)

SOLICITORS : Cochranes Lawyers (Pl) Office of Fair Trading (1st & 2nd Defs)

LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

30133/06 Blackington Pty Limited & 1 Ors v Leonard Hogg & 2 Ors

JUDGMENT 1 HIS HONOUR: The defendants are residents of Banora Point Caravan Park. The plaintiff is the park owner. 2 On or about 21 July 2006, certain material (the material) was placed in the window of the park office. It has been described as comprising a photograph of the first defendant, an enlarged copy of a three page letter from Tweed Shire Council addressed to the plaintiff and a newspaper article. 3 On 28 July 2006, an application was made to the Consumer Trader and Tenancy Tribunal (the Tribunal) by the defendants seeking an order that the plaintiff remove the material. The parties received a Notice of Hearing dated 14 August 2006. It advised that the application had been listed before the Tribunal on 4 September 2006 at 3.00pm. 4 There were other applications before the Tribunal involving the parties on that day. What happened during the hearing of the subject application was not the subject of sound recording. There are two versions of the hearing. One is provided on behalf of the plaintiff by Sharon Muschialli (Muschialli), who is a secretary in the employ of the plaintiff. The other version is provided by the first defendant. Both have sworn an affidavit. The latter is the fuller version. There is little real conflict. On that day, the Chairperson (a Ms K. Ransome) presided. 5 It appears that at times during the day of hearing Muschialli and Miimetua Puia (Puia), who was the park caretaker, were present and purported to act on behalf of the plaintiff before the Tribunal. 6 It appears that some time after midday Muschialli informed the Chairperson that she had to pick up her children from childcare at 2.30pm and made a request that the application be earlier heard. As this was not suitable to the first defendant, it was not done. It appears that no express application was made for adjournment. The application remained in the list for hearing at 3.00pm. 7 At 3.00pm, there was no appearance on behalf of the plaintiff. The hearing of the application commenced some short time thereafter. At a later time (perhaps about 3.25pm), Puia attended the Tribunal and placed some documents (the documents) on the table in front of the Chairperson and left. The documents were read by the first defendant and then returned to the Chairperson. The plaintiff did not otherwise participate in the hearing. 8 The defendants adduced evidence and made submissions. During submissions, the first defendant raised the matter of compensation. After some discussion on this matter, a short adjournment was taken. 9 Upon her return, the Chairperson made the following orders:- "1) The application is amended to seek an order that the park owner pay compensation for the stress and anxiety caused by the park owner's breach of the residential tenancy agreement. 2) The park owner is to remove from the shop/office window immediately the poster depicting a copy of a three page letter from the Tweed Shire Council, a photograph of Mr. Leonard Hogg and a copy of a newspaper article from the Tweed Sun Newspaper. 3) The park owner is to pay the applicants the sum of $1,000 immediately." 10 The parties were later given a written copy of the orders together with some short reasons. The reasons are as follows:- "On 21 July 2006 the park owner caused or permitted a poster to be affixed to the window of the office/shop at the entrance to the park. The poster depicts a copy of a three page letter from the Tweed Shire Council, a photograph of Mr. Leonard Hogg and a copy of to today (sic). The clear implication from the juxtaposition of the material pasted to the shop/office window is that Mr. Hogg is responsible for Tweed Shire Council refusing the park owner permission to operate the residential park. This is a deliberate act and has exposed Mr. & Mrs. Hogg to threats and abuse from residents within the park and others. The Tribunal is satisfied that the park owner is in breach of the residential tenancy agreement as it has caused, or has permitted, interference with the reasonable peace, comfort and privacy of the applicants. The material is to be removed immediately. The applicants are entitled to compensation for the stress and anxiety they have suffered as a result of the breach of the agreement by the park owner."

11 During October 2006, the plaintiff filed a Summons in this Court (it was later amended). The relief claimed in the Amended Summons is described as an appeal against the whole decision of the Tribunal made on 4 September 2006. It lists five appeal grounds. They were as follows:- "1. The Third Defendant erred in law by amending the application at an ex parte hearing and making Orders on the amended application without providing the Appellants the opportunity of answering the amended claim. 2. The Third Defendant erred in law by failing to dismiss the application. 3. The Third Defendant erred in law in determining the application to the Tribunal without reaching any relevant, or adequate, findings of fact. 4. The Third Defendant erred in law in failing to give proper reasons for its decision. 5. The Third Defendant erred in law in making an award of compensation or damages inconsistently with the provisions of the Civil Liability Act." 12 The Court has been told that the plaintiff has complied with the second order. As it would be futile to give that matter any further consideration, it may be put aside. 13 What is claimed in the Amended Summons can only be characterised as a claim for relief pursuant to s67 of the Consumer, Trader and Tenancy Tribunal Act 2002 (the Act). This is the only provision in the Act which enables the bringing of an appeal. Relief may also be sought under s65. This latter section provides limited relief or remedy by way of what is set forth in sub-section 1 thereof. The relief or remedy is restricted to those cases where the Tribunal had no jurisdiction or a party has been denied procedural fairness. 14 The plaintiff has sought to make submissions in respect of denial of procedural fairness. In my view, it is not open to the plaintiff to claim that relief or remedy in these proceedings (I mention also that I hold a similar view in respect of any challenge founded on an allegation of insufficient reasons). However, in due course, I will briefly address certain of the matters that were ventilated. 15 Before proceeding further, I should first look at the question of the ambit of the avenue of appeal provided by s67 of the Act. It is a question that has been posed in numerous cases (inter alia, Kalokerinos v HIA Insurance Services P/L [2004] NSWCA 312). What has been said in the cases may still leave doubt. 16 Leaving aside what may fall within the category of the doubtful, certain aspects of the ambit of the appeal seem to be clear. 17 In Owners-Strata Plan No.53094 v Fair Trading Administration Corporation & 1 Ors [2007] NSWSC 249, I observed that:- "17. The ambit of the challenge is narrow. It has to concern the deciding of a question of the nature specified in the section. It is not synonymous with the common law concept of error in point of law or the like (which is a familiar form of limited right of appeal conferred by Statute). It has been said to be drafted in careful language and it has been distinguished from the familiar forms used in the granting of limited rights of appeal by Statute. It has been said that it is restricted to cases where the appeal involves a pure question of law. 18. The section has to be construed in context (inter alia, having regard to other provisions thereof and the provisions of s65). Section 67(8) provides that a reference in the section to a matter of law includes a reference to a matter relating to the jurisdiction of the tribunal. Section 65 provides an avenue of challenge in respect of matters of jurisdiction and denial of procedural fairness." 18 There is authority that a Notice of Appeal should state grounds which identify the decision and the question with respect to matter of law with clarity (see, inter alia, Kalokerinos). Indeed, it has been said that it is necessary to do so, so as to evoke the jurisdiction of the Court (see Grygiel v Baine [2005] NSWCA 218). 19 In this case, what are put forward as appeal grounds fall well short of performing that task. 20 In an endeavour to at least rectify this problem in part, when in reply, Counsel for the plaintiff sought to amend the second ground as follows:- "The third defendant erred in law by failing to dismiss the application by construing s20(1)(b) of the Residential Parks Act 1998 in finding that the plaintiff caused or permitted interference with the defendants' reasonable peace, comfort or privacy in the use of their residential premises."

I shall return to that matter in due course. 21 The appeal was heard on 22 March 2007. The parties relied on written submissions which were supplemented by oral argument. Despite the small amount at issue (I shall refer again to that matter in due course), a hard fought appeal took place which occupied more than three hours. 22 During oral argument, no attention was directed to the fourth ground. It was later confirmed that this ground was not being pressed. 23 I shall now return briefly to the matter of denial of procedural fairness. I should commence by observing that there was no challenge to the Tribunal proceeding with the hearing in the absence of Muschialli. What is complained of is the making of the amendment order and the ordering of the payment of the sum of $1,000.00. 24 The concept of procedural fairness is a flexible one. Each case can be expected to turn on its own particular circumstances. The onus rests with the plaintiff to demonstrate that any such denial justifies a disturbing of the decision that is under challenge (there is the loss of a possible chance). 25 In my view, this is a case that very much turns on its own particular facts. It appears that the plaintiff ultimately decided to play but a limited role only in the hearing. The role was simply to rely on a written submission. The written submission was as follows:- "Submission: (i) The respondent is Blackington Pty. Limited. (ii) The respondent company submits there is no breach of Mr. & Mrs. Hogg's site agreement. (iii) The respondent company submits the CTTT has no jurisdiction to hear this matter. (iv) As evidenced herewith Mr. Hogg is persistent spokesperson who seeks media attention for some reason (sic)."

26 This was one of the documents left with the Tribunal by Puia. It had been accompanied by photocopies of numerous newspaper articles featuring the first defendant. That material is not before the Court. 27 It was a submission that not only put in issue the question of jurisdiction, but also put in issue the question of breach. 28 The case propounded by the defendants before the Tribunal was founded on a term of the Residential Tenancy Agreement (it was a term imported by virtue of s20 of the Residential Parks Act 1998 (NSW)). It is referred to as the resident's right to quiet enjoyment. It has been observed to be an expansion by the section of the covenant of quiet enjoyment as understood by the common law (see Martin's Camera Corner Pty Limited v Hotel Mayfair Ltd [1976] 2 NSWLR 15 and Commissioner for Fair Trading v Tschannen [2004] NSWSC 67). 29 The defendants alleged breach of that term. It is the breach of that term that empowers the Tribunal to make the order that was made. 30 It is not said that the Tribunal did not have jurisdiction to make the order. It is not said that the quantum of the order exceeded any monetary limit. It is merely said that the quantum should have been determined by application of the provisions of s16 of the Civil Liability Act 2002 (NSW) (the CLA). 31 This is not a case in which the plaintiff was denied a reasonable opportunity to participate in the hearing of the proceedings and present its case (whether by the way of adducing evidence or merely by making submissions). It clearly had such a reasonable opportunity. In proceeding to play a limited role only in the hearing it failed to take advantage of the opportunity that was given to it. By so doing, it exposed itself to the risk of what took place. 32 If it had taken advantage of such opportunity, it would have been in a position to address the questions of amendment and of the making of the order. It was the conduct of the plaintiff (or lack of it) that is the cause of its present complaints. 33 In my view, there was no denial of procedural fairness in this case. Further, if a different view were to be taken on that matter, I consider that no basis has been shown for the disturbing of the decision of the Tribunal. 34 I shall now generally consider the remaining submissions that were advanced during oral argument. 35 Firstly, I move to the question of the amendment itself. At the outset, I should observe that in my opinion it does not throw up any question that falls within the ambit of s67 of the Act. 36 Section 32 of the Act enables the making of amendments. Sub-section 2 provides that an amendment may only be made after notifying the party to who the amendment relates. Sub-section 3 thereof provides in effect that a non-compliance with such a statutory provision is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal otherwise determines. 37 The Court has been taken to authority (Spigelman CJ in Attorney General of New South Wales v World Best Holdings [2005] NSWCA 261 at 94). In that case, the Chief Justice made observations concerning a similar provision (s81) contained in the Administrative Decisions Tribunal Act 1997 (NSW) (the ADT Act). 38 The Chief Justice saw such provisions as being directed to matters of practice and procedure. He further observed that the deficiencies to which such a provision applies are voidable rather than void. 39 Section 32 confers jurisdiction upon the Tribunal to otherwise determine. It was open to the plaintiff to pursue the matter in that jurisdiction. No such action has been taken by the plaintiff. 40 Section 32 appears in a somewhat different context to the provision considered by the Chief Justice. The Act does not have a provision similar to s112 of the ADT Act. Instead, it has s65 and the restrictions imposed upon a Court to grant relief or remedy. I take these matters no further as they have not been the subject of argument. 41 In my view, if it be assumed that the Court has jurisdiction in respect of it, nothing has been advanced to justify a setting aside of the amendment decision. I consider that the failure to notify should be regarded as a non-compliance which retains the character of an irregularity. 42 The Tribunal exercised a discretion to make the amendment. It was a discretion exercised in relation to a matter of practice and procedure. I am not satisfied that it was not done in the interests of justice. If there be jurisdiction to do so, I do not consider that the Court should grant relief in respect of it pursuant to the Act. 43 The thrust of another aspect of the submissions is to attack the finding of breach made by the Tribunal. One avenue of challenge was a contention of misconstruction of the term. In my view, the plaintiff faced a near impossible task in making out this attack. 44 The approach involved what might be described as engaging in a deductive process in respect of the reasons. 45 This process was pursued in the following circumstances. There was no transcript. What has been said by the first defendant merely tells the Court that he gave evidence. Save for an identification of some documentary material, the content of the evidence is unknown. The first defendant has given evidence as to submissions made by him to the Chairperson. The content of certain of those submissions stands consistently with there being evidence that what was being complained of (at least in part) concerned what was contemplated by the term (s20)(1)(b)). It is unclear as to whether or not the reasons purport to be an exhaustive statement of facts and findings that were relied on to reach the decision. As they present as short reasons, it seems to me to be more likely that the decision may also depend on unexpressed evidence and findings. 46 If it be assumed that there is jurisdiction in respect of this attack, I am not satisfied that the attack has been made out. 47 Finally, I turn to the last submission. One of the powers conferred on the Tribunal is to make an order as to compensation for any breach of a residential tenancy agreement. This appears to be the power that was exercised by the Tribunal in this case. It was expressly allowed "for the stress and anxiety they have suffered as a result of the breach". There is no issue that the Tribunal may make an order in respect of such matters (see Baltic Shipping Co v Dillon (1993) 176 CLR 344). 48 In the context of the litigation that took place before the Tribunal, it seems to me that even if the plaintiff had been notified of the amendment the prospect of questions arising under the CLA being ventilated could be described as being more than just remote. In the circumstances, I am far from persuaded that the plaintiff should now be allowed to ventilate such matters in this appeal. 49 Leaving that matter aside, I am not persuaded that the CLA has application in this particular case. The ultimate issue between the parties seemed to turn on whether what was allowed for stress and anxiety fell within the definition of "non-economic loss" as defined in s3 thereof. There has to be uncertainty as to what the Tribunal had in mind when it referred to "stress" and "anxiety". The Court does not have the benefit of knowledge of the evidence that was before the Tribunal. There was clearly no psychiatric evidence. Presumably, there was no evidence of the suffering of ill health. The submissions would suggest that the Tribunal was dealing with, inter alia, threats and the emotional impact had by such conduct on the defendants (inter alias, distress). In the circumstances, I am not satisfied that the legislation has application in this particular case. 50 By reason of what has been earlier said, I refuse the application to amend the Amended Summons. In reaching that decision, I have had regard to, inter alia, the lateness of the making of the application, any prejudice that this might engender and the lack of utility in the making of it. 51 Before concluding this judgment I wish to take advantage of the opportunity to endorse the observations made by Dunford J in Caraco Pty Ltd & Anor v Alan Shepherd & Ors (NSWSC) unreported, Dunford J, 15 April 2003 at paragraphs 3-5. His Honour was dealing with an appeal from the Tribunal in the sum of $700.00. The position is much the same in this case. I repeat the expressed concern "that these proceedings should be brought at all". 52 The Summons is dismissed. The plaintiff is to pay the costs of the proceedings. The exhibit may be returned. **********

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