Luxmore v Fair Trading Tribunal & Anor

PARTIES : Fair Trading Tribunal (First Defendant)

Canella Pty Limited t/as Wilson Removals (Third Defendant) JUDGMENT OF : Master Harrison

LOWER COURT FTT Queanbeyan JURISDICTION : LOWER COURT CO 2001/12081 FILE NUMBER(S) : LOWER COURT Registrar, FTT Queanbeyan JUDICIAL OFFICER :

COUNSEL : N/A Mr P J Luxmore (Plaintiff in person)

SOLICITORS : Submitting Appearance (First Defendant)

Mr J B Wilson (Second Defendant in Person) CATCHWORDS : Appeal decision of Fair Trading Tribunal - venue changed LEGISLATION CITED : Fair Trading Act 1998 CASES CITED : Kioa v West (1985) 159 CLR 550 Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 951 DECISION : (1) Thre summons and notice of motion are dismissed; (2) The plaintiff is to pay the defendant's costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10265/2002 - PETER LUXMORE v FAIR TRADING TRIBUNAL & ANOR

JUDGMENT (Appeal decision of Fair Trading Tribunal; venue changed) 1 MASTER: By summons filed 30 January 2002 and notice of motion filed 28 February 2002 the plaintiff firstly, seeks an order that the decision of the Fair Trading Tribunal (FTT) made on 20 December 2001 in matter No CO 2001/12081 be set aside; secondly, that the matter be reheard or appealed to be determined by the appropriate court so that the plaintiff has the opportunity to present his case and to produce evidence so as to remedy the denial of natural justice; and thirdly, the reimbursement of his legal costs at the conclusion of the matter. The plaintiff relied on his affidavits both sworn 21 March 2002. The second defendant Canella Pty Limited t/as Wilson Removals relied on the affidavit of John Bruce Wilson, a director of the corporation, sworn 15 February 2002. Mr Luxmore appeared unrepresented. Mr Wilson is the director of Canella Pty Limited and appeared unrepresented. The first defendant filed a submitting appearance. 2 The plaintiff appeals the decision of the FTT made on 20 December 2001. It appears that there is a typographical error on the decision as it refers to 19 December 2001. The notice for hearing listed the matter for hearing on 20 December 2001. That was the day Canella was advised that the hearing would take place and this is the day Mr Wilson appeared. The plaintiff did not allege that the hearing took place on a day other than the one that was allocated. 3 The grounds of appeal are as follows:

(1) The plaintiff's request to have the application heard in Sydney was ignored.

(3) It was not explained to the plaintiff about telephone hearings.

(4) The plaintiff was unable to present his case, question the defendant, and was not able to produce evidence.

The proceedings before the FTT 4 The Fair Trading Tribunal Act 1998 established a Tribunal to adjudicate consumer and commercial disputes. The objects of the Act are set out in s 3. They are to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair, and to enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner. According to s 27 of that Act 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 natural justice. 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. 5 On 13 November 2001 the plaintiff filed an application and statement at the FTT at Sydney. The plaintiff deposes that he requested that the hearing be held in Sydney and that he was advised by the staff that this would be so and to except a waiting time of three months for the hearing. 6 On 28 November 2001 the FTT advised the plaintiff by a notice of hearing that the application would take place before it at: " Queanbeyan Court House Farrer Place Queanbeyan at 9.30am on Thursday, 20 December, 2001" 7 Further, at the foot of the notice of hearing appeared the following: "This matter is listed for a 1 hour hearing TAKE NOTICE: · The case can be heard in your absence. · FAILAURE TO ATTEND ANY HEARING COULD RESULT IN AN ORDER BEING MADE AGAINST YOU. · A POSTPONEMENT OF A HEARING WILL NOT BE GRANTED WITHOUT THE CONSENT OF THE OTHER PARTY(IES) UNLESS THERE ARE EXCEPTIONAL CIRCUMSTANCES. YOUR ATTENTION IS DRAWN TO SECTION 48 OF THE FAIR TRADING TRIBUNAL ACT 1998 WHICH PROVIDES THAT COSTS MAY BE AWARDED." 8 By letter dated 4 December 2002 addressed to the FTT at Wollongong, the plaintiff stated: "I received the Notice of Hearing dated 28th November 2001. The proceedings in relation to this application has been listed to take place before the Tribunal situated at Queanbeyan Court House Farrer Place QUEANBEYAN at 9.30am on Thursday, 20th December. I wish to advise the Registry that I am not able to travel to attend the hearing because of ongoing medical treatment, Centrelink's assistance commitments and as I have not had employment for almost 2½ years I cannot afford the high cost of travel and accommodation and I wish to apply to have the application listed in a Tribunal at a more convenient location in Sydney. Because of the nature of the application, I can envisage more than one hearing in order to resolve the disputes and holding the hearings in Queanbeyan would not provide a timely and inexpensive means of resolving the disputes. I have been refused Legal Aid as it does not pass the merit test. No one else is available to present my case and by presenting evidence by statutory declaration would disadvantage the presentation of my case. My general practitioner has advised me that because of the nature of my health problems, it would be unadvisable and unreasonable for me to travel to Queanbeyan to attend court. The medical condition was initially diagnosed 11th January, 2000 and requires treatment over the next 3 months. Having to travel to Queanbeyan would interupt (sic) this treatment. I am a resident in Sydney. Canella Pty Limited is a corporation with the resources to travel to Sydney for the hearings as they are interstate furnature (sic) removalists and the storage services they are proving arises out of a relocation back to Sydney 8th December 1999." 9 The reason for this decision was solely in the province of the Tribunal and remains unexplained. The matter may have been transferred to Queanbeyan for hearing because the goods stored by the defendant since December 1999 arise from a contract that was made in Queanbeyan (see application to FTT). However in these proceedings, Mr Wilson, a director of the second defendant, has travelled from Queanbeyan to Sydney on a number of occasions to represent the company when he had no involvement in the decision to transfer the hearing of the dispute to Queanbeyan and understandably could not offer any explanation as to why this was done. 10 The FTT did not respond or acknowledge receipt of the plaintiff's letter. The matter proceeded at Queanbeyan on 20 December 2001 in the plaintiff's absence. Mr Wilson appeared for Canella. The plaintiff's application together with his detailed statement (Ex A) was considered by the Tribunal member as was the respondent's written reply to the plaintiff's version of events (Ex 2). The plaintiff stated in his application that he was seeking an order that he did not have to pay $219.00 and sought an order that the second defendant provide services of "$?" value. On 20 December 2001 the Tribunal member dismissed the application on the merits because the applicant failed to prove the claims. Hence although the applicant did not attend his statement was considered as evidence in support of his claim. It is noted that the plaintiff was of the view that limiting his case to the reading of that statutory declaration would disadvantage his presentation of his case. 11 On 16 January 2002 the FTT advised the plaintiff that his application for a rehearing was refused. The reasons for the refusal were that the applicant did not attend the hearing in person but had his statement considered as evidence in support of his claim and the evidence of the respondent was preferred. The order made was available on the evidence and the matter was concluded.

Denial of natural justice 12 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." 13 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) at 628 stated: "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." 14 In relation to procedural fairness, Mason J stated in Kioa 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 (pp 454 and 455). 15 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." 16 However, whether there is a denial of procedural fairness depends on the circumstances in each case. The plaintiff lodged the application in Sydney. The plaintiff was notified of the date, time and place of hearing with enough time to adequately prepare for the hearing. The plaintiff's request was not that the matter be adjourned to another date but rather the venue for hearing be Sydney in lieu of Queanbeyan. However, the plaintiff was at all times aware that if he did not appear at Queanbeyan the matter would be heard in his absence, and that a postponement of a hearing would not be granted without the consent of the other party unless there were exceptional circumstances. The plaintiff must have been aware that his reasons for the transfer, namely that he could not afford the costs of travel and accommodation to Queanbeyan, and that he had a medical condition, may not considered exceptional by the Tribunal member, yet he was prepared to take the risk. He did not check prior to the hearing date whether the Tribunal had considered his request and if it had what action, if any, had been taken. (There was no medical certificate attached to the letter). 17 Despite the plaintiff's protestations that a statutory declaration would disadvantage his presentation of the case, the amount in dispute was to be $219.18 plus perhaps an unquantified amount. The plaintiff had provided a statement outlining his case which was considered by the Tribunal member. 18 One of the plaintiff's grounds of appeal is that no-one he claims explained about telephone hearing. The defendant in these proceedings filed an originating application from the Small Claims Tribunal ACT dated 23 July 2001 seeking that the plaintiff pay the amount of $344.73 being the amount of outstanding storage fees from February 2001 to 30 July 2001. The plaintiff did not attend that hearing but gave evidence by means of telephone hookups on 13 September 2001, 21 October 2001 and 31 October 2001 (plaintiff's aff para 43). On 31 October 2001 the magistrate gave judgment for the defendant in the sum of $299.67. Thus, the plaintiff was aware of the availability of the telephone hookups in courts and if he wished to canvass the availability of a similar service in the FTT he could have made enquiries. 19 I have concluded that in the overall circumstances, the plaintiff has not established that he was denied natural justice or procedural fairness. The summons and notice of motion should be dismissed.

Costs 20 The second defendant sought $3,000 costs for travelling from Queanbeyan to Sydney on three occasions when the matter was mentioned before this court. On two occasions the defendant drove to Sydney on one occasion he caught a plane. He has also sought reimbursements of his wages although there was no evidence as to the amount. The plaintiff also sought his costs of $50,000 for loss of income. Costs are discretionary. Costs normally follow the event. There is no reason to depart from this rule. The plaintiff is to pay the second defendant's costs. 21 The court orders:

(1) The summons and notice of motion are dismissed.

(2) The plaintiff is to pay the second defendant's costs. **********

Last Modified: 06/11/2002 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.