Blair & Anor v Lawton & Anor

Consumer, Trader & Tenancy Tribunal (Second defendant) FILE NUMBER(S) : SC 30077/2002 Mr K Pierce COUNSEL : (Plaintiff) Mr I G Roberts (First Defendant) Messrs Budd & Piper, Tweed Heads (Plaintiff)

SOLICITORS : Minter Ellison (First Defendant)

LOWER COURT Consumer, Trader & Tenancy Tribunal JURISDICTION : LOWER COURT HB 02/08375 FILE NUMBER(S) : LOWER COURT Tribunal Member Murray Sainsbury JUDICIAL OFFICER :

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

30077/2002 - KEITH BLAIR & ANOR v THOMAS LAWTON & ANOR

JUDGMENT (Appeal decision of CTTT - alleged non-receipt of notice of hearing) 1 MASTER: By summons filed 5 September 2002, the plaintiff seeks an order pursuant to s 65 of the Consumer, Trader and Tenancy Act 2001 (the Act) to the effect that firstly, the decisions of the second defendant dated 18 May 2002 and 11 July 2002 be set aside, precluded from enforcement and or quashed; secondly, that the first defendant be precluded or prevented from proceeding, or enforcing the decisions of the second defendant dated 18 May 2002 and 11 July 2002; thirdly, in lieu of the decision and orders made on 18 May 2002 and 11 July 2002 the court make such judgment and or order in the proceedings as, in its opinion, should have been made in the Consumer, Trader and Tenancy Tribunal (CTTT); and fourthly, in the alternative, that the matter be remitted to the CTTT for a rehearing. 2 The plaintiffs are Keith Blair and Margaret Blair who are husband and wife. The first defendant is Thomas Lawton and the second defendant is the CTTT. Mrs Blair relied upon her affidavits sworn 4 October 2002 and 12 November 2002 and the affidavit of Keith Blair sworn 4 October 2002. The first defendant relied on his affidavit filed 8 November 2002. Mr and Mrs Blair were cross-examined. The second defendant has filed a submitting appearance. This matter has been referred by the List Judge to a Master for hearing. 3 At the outset, it is necessary to record that the first plaintiff is an un-discharged bankrupt. On 4 September 2002, a sequestration order was made in respect of the first plaintiff. On 5 September 2002, the present proceedings were commenced. At the time that the proceedings were commenced by the first plaintiff, he was bankrupt and hence he had no standing to bring such proceedings. His assets by virtue of the sequestration order had vested in the trustee on 4 September 2002. The proceedings as brought by the first plaintiff Keith Blair are dismissed. In these proceedings Margaret Blair is the only remaining plaintiff. Hence, in this judgment, I shall refer to Mrs Blair as "the plaintiff". 4 A stay of enforcement of judgment in favour of the first defendant in proceedings 175/02 in the District Court of New South Wales at Lismore, and/or further execution of writ No 175/02 issued out of the District Court of New South Wales, Lismore on 14 June 2002. That stay has been granted pending further orders of this court. 5 The plaintiff relied on s 65 of the Act. Section 65(3) provides that relief can be granted by way of a judgment or order in the nature of prohibition, mandamus, certiorari, and a declaratory judgment or an injunction if in relation to the hearing or declaration of a matter, a party has been denied procedural fairness. This court may make an order affirming or setting aside the decision of the Tribunal, or an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of this court.

Denial of natural justice and procedural fairness 6 In relation to natural justice, Professor S A de Smith, Judicial Review of Administrative Act, 2nd ed., pp 180-181 has stated: "Natural justice generally required that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position: (a) to make representations on their own behalf; or (b) to appear at a hearing or inquiry (if one is to be held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet." 7 In Kioa v West (1985) 159 CLR 550 the High Court held that the duty to accord natural justice is a duty to act fairly. In the normal course, a party to judicial proceedings (as are those in a tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing such as to give it a reasonable opportunity to meet that case and to advance its own. These statements are similar to those expressed by Professor de Smith and referred to earlier. Brennan J (as he then was) stated at 628: "A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interest which the repository of the power proposes to take into account in deciding upon its exercise." 8 In relation to procedural fairness, Mason J stated in Kioa at 584-585 that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. 9 In Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 951 Grove J stated at para 25: "There is ample authority that procedural fairness is denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequate opportunity to prepare or present a case: Sullivan v Department of Transport (1978) 20 ALR 323; Opitz v Repatriation Commission (1991) 29 FCR 50; Humphrey v Wills (1989) VR 439." 10 Whether there is a denial of procedural fairness depends on the circumstances in each case.

Whether an extension of time to appeal should be granted 11 Proceedings were required to be commenced within 28 days of the material date. The material date in this case was 23 May 2002, the date on which notice of the decision was given to the plaintiffs - see Pt 51A r 2(b) SCR. The time to commence these proceedings expired on 28 June 2002. The proceedings were commenced on 5 September 2002 which is over two months out of time. 12 The plaintiff has not proffered an explanation as to why a summons was not filed within the time required by the rules. On 27 May 2002, the plaintiff was aware of the CTTT's order. On 30 May 2002, the plaintiff engaged a solicitor. On 7 June 2002, the Blairs applied for a rehearing in the CTTT on the basis that they did not receive the notice of hearing. On 11 July 2002, the application for a rehearing was not granted. The reasons of the Tribunal will be referred to in more detail later in this judgment. The first defendant took steps to enforce the judgment of the CTTT. The certified order from the Tribunal was registered as a judgment in the District Court. The plaintiff filed a notice of motion seeking to stay enforcement of the judgment in the District Court. This notice of motion was not served upon Mr Lawton and he found out by accident when he telephoned the Sheriff to discuss the progress of the writ (para 25, Lawton's aff). On 5 August 2002, the Judge dismissed the motion on the basis that he did not have jurisdiction to uphold the stay. 13 On 8 August 2002, the Sheriff, who was seeking to execute the writ, reported that he was unable to gain access to the Blair's premises due to a six foot fence and a locked gate. On 2 September 2002, Mr Lawton filed an application for renewal of writ of execution. On 11 September 2002, Mr Lawton filed an application to record a writ. The writ was recorded on 18 September 2002. On 20 September, Mr Lawton filed a notice to the judgment debtor and a registration of a writ of execution. The matrimonial property at 7 River Street, Chinderah is solely owned by Margaret Blair. The plaintiff was most diligent in her attempts to stop the enforcement proceedings but she did not focus her attention on appealing the decision of the Tribunal. 14 However, the plaintiff's credit has been put in issue and for the reasons given later in this judgment on this topic it is my view that justice is best served if the extension of time is refused.

The Tribunal proceedings 15 On 16 May 2002 at 2.00 pm, the first defendant attended the Tribunal hearing at the Tweed Heads Shire Council. The plaintiff did not appear and the proceedings were heard in her absence. The first defendant produced documents to the Tribunal Member. On 16 May 2002 the Tribunal made an order that: "The Respondent, Keith Blair and Margaret Blair T/as Stress Free Holidays, 7 River Street, CHINDERAH NSW 2487, are jointly and severally to pay to the Applicant, Thomas Lawton, 83 City View Road, CAMP HILL QLD 4152, THE SUM OF $45,547.50 ON OR BEFORE 13 June 2002." 16 The first defendant, Mr Lawton deposed that he received a notice of hearing dated 1 May 2002 from the Tribunal advising him that the matter was listed for hearing on 16 May 2002. There is a copy of an identical notice, also dated 1 May 2002 addressed to Keith Blair & Margaret Blair t/as Stress Free Holidays, 7 River Road, Chinderah NSW 2487 on the CTTT file. The plaintiff and her husband have resided at the same address for the past two years. 17 In written reasons of Tribunal Member Murray Sainsbury dated 11 September 2002, he stated: "The applicant appeared. Neither respondent appeared. According to the Tribunal's file, a notice of hearing was posted to the respondents on 1 May 2000 (sic). The notice was not returned, and I therefore presume notice of the hearing was duly served. The applicant stated that to his knowledge the address shown on the Tribunal's correspondence to the respondents was correct" 18 Despite this evidence the plaintiff's counsel somewhat surprisingly maintained that the notice was not sent by the Tribunal. I am satisfied on the balance of probabilities that the notice of hearing was forwarded by the Tribunal to the plaintiff. However, it does not automatically follow that the notice was actually received by Mrs Blair and this largely depends on whether the Blair's evidence on this point is accepted by the court. The plaintiff submitted that she did not receive the notice of hearing dated 1 May 2002 but only became aware of the proceedings when she received a copy of the order in the post on 17 May 2002. On 30 May 2002, the plaintiff's solicitors Budd and Piper wrote to the Tribunal stating that they were instructed that the Blairs received a copy of an order made by the Tribunal but they had not received a notice of the application. It is appropriate at this stage that I record my observations of Mr and Mrs Blair. 19 Mrs Blair relied on her husband's evidence in relation to the alleged non-receipt of the notice. I carefully observed Mr Blair while he gave evidence and during cross-examination. I did not find him to be a persuasive witness and have difficulty accepting his evidence. Although Mr Blair stated in his affidavit at para 5 that he did not receive the notice of the Tribunal hearing of 16 May 2002, when he was asked in cross-examination if he received the notice of the hearing he said "...yes that would be right I guess" (t 11.36-44). Prior to giving that answer, he admitted receiving notices in other matters where he was named as the sole defendant. 20 Apart from the proceedings on 16 May 2002, Mr Blair had made no appearance on two other occasions at the Tribunal. On neither of these occasions was Mrs Blair a party to the proceedings. When it was suggested to Mr Blair that an application to the Tribunal against him personally had no effect upon him because he had no assets, Mr Blair replied ambiguously: "Well, I guess there is, yes..." (t 11.25-28). When he was then asked whether he did not appear at the proceedings on 16 May 2002 because it did not occur to him that Mrs Blair might be a party to the proceedings he agreed saying: "if we got a letter with Margaret's name on it, we would have gone straight away..." (t11.45-49). As the registered owner of their house, Mrs Blair holds the couple's only significant asset. When Mr Blair was asked whether he responded to the order notifying him of the Tribunal decision's on 23 May 2002 because it occurred to him that his wife, as the owner of their house, was a party to the Tribunal's order he also agreed saying: "Yes. Well, as I said to Margaret we had to do something..." (t12 12-13). 21 I also carefully observed Mrs Blair while she gave evidence and was examined. She was not a persuasive witness and I have difficulties accepting her evidence. Mrs Blair asserted that she only assisted with the design of the kitchen and the bathroom of the Lawson's house (t 22.19-20). However, an exchange of faxes (Aff Thomas Lawton annexure N) between her and Jill Lawton indicate that she was involved in overseeing the detailed construction of the bathroom and kitchen. One of these faxes, marked to the attention of Jill Lawton, detailed a contractor's requirements. The fax was signed "REGARDS MARGARET". When asked about this, Mrs Blair claimed that her husband had signed and sent this fax on her behalf but this answer is not credible. 22 In another fax, which was marked as sent by Jill Lawton on 14 January 2002 to "MARGARET/KEITH" there was written as the fourth item under the title "KITCHEN": "Margaret to provide prices for kitchen sink before cabinet maker starts." When asked whether this went beyond assisting with the design of the house, Mrs Blair replied: "Well it was just friendship, I thought I was giving." She then sought to explain that she had been only asked to finish providing prices and stated that she obtained "a price" because all she "had to do was find the sink." (t 25.29-54). 23 When Mrs Blair was referred to Wreckair tax invoices in the name of "K&M BLAIR" and asked whether she was the M Blair indicated, she accepted that it was. However, she sought to explain this by saying that she had to attend Wreckair because her husband had asked her to come with her credit card as Wreckair "wouldn't give anyone anything". She said her husband was paying cash but that Wreckair would not accept it "without a credit card" (t 26.37-46). 24 When Mr Blair was asked about the Wreckair tax invoices he gave a somewhat different answer. He said that before 'getting anything' from Wreckair it was necessary for him to produce some identification. He stated that even though he sought to hire materials from Wreckair on the occasion in question, he used his wife's driver's licence, which Wreckair accepted because his "name was the same..." When Mr Blair was then asked how it was Wreckair knew he and Mrs Blair had the same surname he replied: "Well, I don't know. We turned up there together. They took it as that." (t 16.34-55) 25 It is more probable than not that Mrs Blair was aware of the notice of the proceedings of 16 May 2002 against her husband. She denied this, but as noted earlier, her husband conceded that it "would be right" that he did get the notice addressed to both of them. It seems unlikely that he would not have told his wife of this particularly when they were both aware that Mrs Blair owned the matrimonial property. When asked in cross-examination if she received in the mail a notice from the Tribunal, Mrs Blair stated that she only received the notice dated 23 May 2002, which was addressed to her. She said that she put on "the table" any mail that was addressed to her husband and only opened mail that had her name on it (t 21.20-55). When it was put to her that the notice of 23 May 2002 was in fact addressed to her husband as well as herself, Mrs Blair would only say she did not "tell lies" (t 22.11). It is my view that it is more probable than not that she received the notice of hearing from the Tribunal. When Mrs Blair was asked questions relating to her purported defence, her answers lacked credibility. In these circumstances it is my view that there has not been a denial of natural justice nor of procedural fairness.

The rehearing application 26 On 11 July 2002, the following orders were made: "The application for a re-hearing of matter 02/08375 is not granted as the application is misconceived. The stay order made on matter 02/08375 on 20/6/02 is lifted." 27 The reasons given for not granting a rehearing were that pursuant to s 68(13)(a) "a person cannot make an application under this section for a rehearing of completed proceedings if the amount claimed or disputed under the completed proceedings was more than $25,000...." Accordingly, as the amount claimed or in dispute is $45,547.50, the application cannot be entertained. 28 To overcome obvious difficulties of the provisions of s 68(13)(a) the plaintiff's counsel submitted that the Tribunal should set aside the order dated 18 May 2002 on the basis that the non-receipt of the notice was an irregularity in accordance with s 32 of the Act. However the plaintiff's application for rehearing form referred to an application being made under s 68 of the Act, and this is precisely the section under which the Tribunal considered the application. The plaintiff is not entitled to bring a rehearing application. This submission fails. The appeal is dismissed. The orders of the CTTT dated 18 May 2002 and 11 July 2002 are affirmed. The summons is dismissed. 29 Costs are discretionary. Normally costs follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed. 30 The court orders:

(2) The decisions of the CTTT dated 18 May 2002 and 11 July 2002 are affirmed.

(4) The stay of enforcement of judgment in favour of the first defendant in proceedings 175/02 in the District Court of New South Wales at Lismore, and/or further execution of writ No 175/02 issued out of the District Court of New South Wales, Lismore on 14 June 2002 is dissolved.

(5) The plaintiff Margaret Blair is to pay the defendants' costs as agreed or assessed. **********

Last Modified: 05/08/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.