D'Angola & Anor v CTTT & Anor

Prior dealings with Office of Fair Trading 13 On 12 April 2005, Jane Dolan, Customer Service Officer at the Office of Fair Trading received a call from Mrs Brett. Ms Dolan subsequently made a telephone call and spoke to Donato D'Angola. Ms Dolan's file note of the conversation with Ms Brett (Ex 2) reads: "Spoke with the C [Customer] and she advised me that she wants 400.00 reimbursement for the Water tank lid and is wanting reimbursement of them to pay someone to come and repair their work." 14 Ms Dolan then spoke to Donato D'Angola. Her file note records: "Rang the T [Trader] and Spoke to Don (partner) advised him of the problem he advised me that he had been speaking to Arthur and C and advised the C that if he gets the metal tank lid then he will pay for it the T is going to go to C's house at the end of the week to fix that up I advised the T of the other problems and he advised me that any cracks under 5ml wide is Australian standard and ever thing else that the C has put in her complaint apparently the C was advised of the T is stating that there is no problems." 15 Arthur is Arthur Brett, Mrs Brett's husband. 16 In Donato D'Angola's first affidavit (31/05/2006) at [4] he denied that Ms Dolan had ever contacted him. Later he corrected this statement. Mr Donato D'Angola deposed (Aff, 22/09/2005 [3]) that, after being informed by his solicitor that it appeared from documents produced by the Office of Fair Trading under subpoena that Ms Dolan had spoken to him on 13 April 2005, he then recalled his conversation with Ms Dolan. He believed he said to her "I have been speaking to Arthur about the tank lid and I said I will pay for it. I will have to go around and follow that up by the end of the week." Donato D'Angola recalled going to Mrs Brett's home a few days after he had spoken to Jane Dolan and speaking to Mr Brett about the tank lid. 17 There is evidence by Mr Brett that in late October or early November 2005 he had a conversation with Donato D'Angola as follows: "Donata said "Your wife has taken me to Fair Trading. She has gone too far and will loose (sic)." I said "The matter is out of my hands. My wife is not happy with the work and I am not her boss." Donato said "We would have fixed it up. She shouldn't have gone to Fair Trading." (Aff, 6/07/2006 [8]) 18 When Mr Brett was cross examined about when this conversation took place, he conceded that he could not really put a time on it. Hence, this conversation could have taken place in April 2005. 19 Donata D'Angola, Caterina D'Angola and Gerardo D'Angola all deny that they received any notice in writing or by telephone from the CTTT about the complaint lodged by Mrs Brett or of the hearing on 29 November 2005. Their evidence is that they first became aware of the CTTT proceedings and of the order against them when the sheriff came to the home of Caterina and Gerardo D'Angola on 15 February 2006 and sought to seize the work vehicle in execution of the writ.

Hearing - 29 November 2005 20 At the hearing before the Tribunal Member, Mrs Brett appeared. There was no appearance by the D'Angolas. In the application form Mrs Brett had named the defendant as "Gedon Concreting (Don or Gerry)". There is a copy of the notice of hearing on the CTTT file which shows that it was directed to "Gerardo D'Angola and Donata D'Angola Trading As Gedon Concreting" at "22 Jorgensen Avenue St Clair NSW 2759". That address is the residential address of Gerardo D'Angola and his wife Caterina D'Angola. Donato D'Angola does not reside there. There had not been any directions hearings or prior adjournments granted prior to the hearing. The D'Angolas had not corresponded with the Tribunal prior to the hearing taking place. Hence, this failure to receive this notice of hearing would have been fatal. 21 There are short reasons by the Tribunal Member (which appear at the conclusion of the Notice of Order dated 19 November 2005) that state "The Tribunal found that the surfaces of the driveway and garage were defective, and the respondent has been given since January to rectify." 22 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, …" 23 Section 35 of the CTTT 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." 24 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 v Carbone & Ors [2005] NSWCA 177 at [105] and [106]. 25 Section 78(1) of the CTTT Act provides: "Notices, service and lodgment of documents

(1) For the purposes of this Act, a notice or document may be given to a person (and a document may be served on a person): (a) in the case of a natural person - by: (i) delivering it to the person personally, or (ii) leaving it at, or by sending it by post to, the residential or business address, or other address for service, of the person that was last known to the person giving or serving the document, or

(b) in the case of a body corporate - by leaving it at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate, …" 26 The Tribunal Member proceeded to hear the matter in the absence of a party, which he or she is empowered to do, provided he or she has been satisfied that the notice of hearing was duly served on the party - see Regulation 29 of the Consumer Trader and Tenancy Tribunal Regulations 2002 (NSW). There are no reasons given by the Tribunal Member that he or she was satisfied that the notice of hearing was duly served on the defendant. 27 Mrs Bretts' counsel referred to Fancourt v Mercantile Credits Limited (1983) 154 CLR 87, where the Fancourts had given sworn evidence that they did not receive the relevant notices. The High Court noted that it was not contended that this amounted to proof that the appellants had not been served with the notices and added (at 95): "Such a contention would have been difficult having regard to the fact that there is nothing to show that the notices were not delivered as addressed and having regard to the fact that (the relevant provision) clearly contemplates … service other than personal service." 28 Their Honours then considered the relevant provision of the relevant Acts Interpretation Acts 1954 to 1962 (Qld). The equivalent section can be found in s 76 of the Interpretation Act 1987 (NSW). However, their Honours noted that, in the absence of the notices having been returned undelivered or any other circumstance which suggested that they did not reach their destination, by the Queensland Acts Interpretation Acts, service was deemed to have been effected at the time when the notices would have been delivered in the ordinary course of the post. 29 Each case depends upon its facts. True it is that in the case before this Court it appears that the document addressed to the defendant was not returned to the CTTT. The D'Angolas have given sworn evidence that they did not receive the notice of hearing. Had there been some correspondence by the D'Angolas to the CTTT or even to Mrs Brett showing they were aware of the proceedings, I would have been satisfied that they were aware of the proceedings. Even if they had attended a prior directions hearing, that may have been sufficient. However, where the defendants did not appear and the Tribunal Member's reasons are silent as to whether he or she was satisfied that the notice of hearing was duly served on the D'Angolas, amount to a denial of procedural fairness. The D'Angolas' reasons for rehearing contains a defence on its merits. The appeal is granted. The decision of the Tribunal Member dated 29 November 2005 is set aside. The matter is remitted to the CTTT for rehearing. 30 Costs are discretionary. Costs usually follow the event. The second defendant is to pay the plaintiffs' costs as agreed or assessed. The second defendant is to have a certificate under the Suitor's Fund Act 1951 (NSW) if applicable.

(2) The decision of the Tribunal Member dated 29 November 2005 is set aside.

(3) The matter is remitted to the CTTT for rehearing.

(4) The second defendant is to pay the plaintiffs' costs as agreed or assessed. The second defendant is to have a certificate under the Suitor's Fund Act 1951 (NSW) if applicable. **********

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