Moore v CTTT & 2 Ors

JURISDICTION : Common Law List Administrative Law List

DECISION : (1) The decision of Tribunal Member Cooper dated 14 January 2005 is affirmed; (2) The summons filed 18 May 2005 is dismissed; (3) The plaintiff is to pay the defendants' costs as agreed or assessed.

CATCHWORDS : Appeal decision of CTTT - failure to grant adjournment

Consumer, Trader & Tenancy Act 2001 (NSW) - ss 65 & 67 LEGISLATION CITED : Residential Tenancies Act 1987 (NSW) Residential Tribunal Act 1998 (NSW)

Holloway v Chairperson of the Residential Tribunal [2001] NSWCA 209; (2001) 51 NSWLR 716 Kioa v West (1985) 159 CLR 550 Italiano v Carbone & Ors [2005] NSWCA 177 CASES CITED : Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 Sali v SPC Ltd (1993) 116 ALR 625 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Thomas v Nedeljkovic [2004] NSWSC 524

Consumer, Trader & Tenancy Tribunal (First Defendant) PARTIES : K A Burke (Second Defendant)

Submitting Appearance (First Defendant) SOLICITORS : Submitting Appearance (Second Defendant)

No Appearance (Third Defendant)

LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT JUDICIAL OFFICER : Tribunal Member E Cooper

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

30024/2005 - DANIELLE MOORE v CONSUMER, TRADER AND TENANCY TRIBUNAL & 2 ORS

JUDGMENT (Appeal decision of CTTT - failure to grant adjournment) 1 HER HONOUR: By summons filed 18 March 2005 the plaintiff seeks firstly, an order that the decision and orders dated 14 January 2005 of the Consumer, Trader & Tenancy Tribunal (CTTT) made by Member Cooper in proceedings RT 04/58087 be quashed; and secondly, an order that the CTTT hear and determine the plaintiff's application for orders under the Residential Tenancies Act 1987 (NSW) lodged on 8 December 2004. No specific grounds of appeal are raised in the summons. 2 The plaintiff is Danielle Moore. The first defendant is the CTTT who has filed a submitting appearance. The second defendant is K A Burke who has also filed a submitting appearance. The third defendant is B J Evans. Mr Evans has not taken an active role in these proceedings. There was no contradicter - see Holloway v Chairperson of the Residential Tribunal (2001) 51 NSWLR 716. 3 In Holloway one party did not appear. The issue in dispute was the interpretation of s 63 of the Residential Tribunal Act 1998. At [42] and [43] the Court of Appeal stated that it was not satisfactory and that there was no contradictor to assist the Court. The Court commented that the Chairperson, who was a party to the proceedings, had perhaps misunderstood his or her position in filing a submitting appearance. 4 The plaintiff relies upon s 65 of the Consumer, Trader and Tenancy Act 2001 (NSW) (the Act). Section 65(3) provides that a court is not prevented from granting relief or a remedy of a kind referred to in a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or a declaratory judgment or order, or an injunction, in relation to a matter in respect of which the CTTT has made an order if the ground on which the relief or remedy is sought is that (a) the CTTT 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. The plaintiff submitted that she had been denied procedural fairness. 5 Section 67(3) of the Act provides that, after deciding the question of the subject of an appeal, the court may affirm the decision of the CTTT or it may make an order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the CTTT, or it may remit its decision on the question to the CTTT and order a rehearing of the proceedings before the CTTT.

The CTTT generally 6 At the outset, it is helpful to set out some of the provisions of the Act. The functions of the CTTT are to adjudicate disputes between consumers and commercial disputes between landlords and tenants. The CTTT is not constrained by the rigour of the courtroom. Its objects are to ensure that the CTTT is accessible, its proceedings are efficient and effective, its decisions are fair and to enable proceedings before the CTTT to be determined in an informal, expeditious and inexpensive manner. The CTTT 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(3)). 7 Evidence must be given on oath or statutory declaration (s 39(1)) but the CTTT is not bound by the rules or practice of evidence and the CTTT may inform itself on any matter in such manner as it considers appropriate (s 28(2)). The CTTT 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 CTTT 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 CTTT has the power to award costs (s 53), but usually each party bears its own costs. Pursuant to s 54 of the Act, the CTTT is obliged to use its best endeavours to bring the parties to a settlement before making an order. The CTTT has a power to correct its decision (s 50) and the Registrar can issue a certificate, which operates as a judgment (s 51). I shall refer to ss 28 and 35 in more detail later in this judgment.

Natural justice and procedural fairness 8 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 so as to give it a reasonable opportunity to meet that case and to advance its own. 9 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. Whether there is a denial of procedural fairness depends on the circumstances in each case. 10 In Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 the High Court discussed the manner in which procedural fairness cases are approached by the courts, and Gleeson CJ said (at 14, [37]): "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 11 In considering what is procedural fairness for the purposes of the CTTT it is appropriate to consider the objects of the Act in s 3. 12 The objects of this Act are as follows:

"(a) to establish a Consumer, Trader and Tenancy Tribunal to determine disputes in relation to matters over which it has jurisdiction,

(b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,

(c) to enable proceedings to be determined in an informal, expeditious and inexpensive manner,

(d) to ensure the quality and consistency of the Tribunal's decision-making." 13 In the CTTT the Tribunal Member must act in accordance with the provisions of ss 28(4) and 35 of the Act. They provide: "28 Procedure of Tribunal generally …

(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." "35 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." 14 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]. 15 As previously stated whether there is a denial of procedural fairness depends on the circumstances in each case. The decision to grant an adjournment is a discretionary one and factors to be taken into account are set out in State of Queensland v JL Holdings Pty Limited (1997) 189 CLR 146; Sali v SPC Ltd (1993) 116 ALR 625 and Thomas v Nedeljkovic [2004] NSWSC 524.

The proceedings in the CTTT 16 The plaintiff's solicitor prepared helpful summary of the proceedings in the CTTT which I gratefully adopt. 17 The plaintiff was the tenant of residential premises owned by the second and third defendants from April 2004 to December 2004 under the terms of a residential tenancy agreement ("the agreement"). The premises were a 3 bedroom house and land at Moonee (about 20 minute's drive north of Coffs Harbour). 18 Clause 7 of the agreement provided: "The landlord agrees: 7.1 that the tenant will have quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by through or under the landlord or having superior title to that of the landlord, and 7.2 that the landlord or the landlord's agent will not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of the tenant in using the premises." 19 In December 2004, the plaintiff served notice of termination of the tenancy on the ground that the landlords were in breach of clause 7. 20 At the same time, the plaintiff filed an application in the CTTT seeking the following orders: "1. An order terminating the residential tenancy agreement.

2. An order that the landlord pay the tenant compensation for breach of the tenant's right of quiet enjoyment. Amount of compensation $6,000.

3. If necessary, an order extending the time to claim breach of quiet enjoyment." 21 The plaintiff's application to the CTTT answered the question in the application form, "What are your reasons for requesting this order/s?" as follows: "1. I moved into the premises in April '04. I chose the premises as a quiet place to live, surrounded by bush and open paddocks. There was no sign of any planned building work.

2. Within 2 weeks of moving cars and trucks started driving across the property, past my lounge room window. These included big trucks doing road building. They passed several times a day.

3. I complained to the real estate agent, but no action was taken.

4. This continued several times a day for six months. Sometimes as early as 6.00 am sometimes as late as 10.00 pm." 22 The plaintiff in her affidavit before this court stated that she did not mean to say in paragraph 4 (above) that the breaches of quiet enjoyment ceased after six months. Rather, what she meant to convey was that the frequency of driving across the premises several times a day lasted for six months. She deposed that she thought she would have an opportunity at the hearing to give evidence of what had happened and she had thought it was not necessary to include a lot of detail in the application form and that detail would be provided at the hearing. She deposed that in October and November the driving across the premises occurred about once a day or sometimes once every 2 days. However, it is important to remember that the Tribunal Member was not aware of the plaintiff's intended rectification of paragraph (4). 23 On 4 January 2005 the hearing was adjourned to a date by consent of the parties. The plaintiff telephoned the CTTT towards the end of the week commencing 4 January 2005 and the new hearing date allocated was 14 January 2005. She attempted to contact a tenancy advocacy service and heard a recorded message to the effect that the office would be unattended until 10 January 2005. On 12 January 2005 (some 2 days before the hearing) she spoke to someone at the tenancy advocacy service and was told the service would not be at the CTTT sittings on Friday 14 January 2005. 24 The plaintiff asked her employer, the proprietor of a café, for time off work to attend the CTTT and he replied with words to the effect, "it is too busy in the holidays and I do not have time to find a replacement. I cannot give you time off." The plaintiff called the tenancy advocacy service and told them she could not get time off work. She says the advocacy service told her words to the effect, "You will have to fax the Tribunal to ask for an adjournment. Write in the reasons why you cannot go." 25 On 12 January 2005 the plaintiff sent a facsimile message to the CTTT in the following terms: "To Tenancy Tribunal

Regarding File No: RT 04/58087 I Danielle Moore, prior Tenant of 17 Moonee Beach Rd, am requesting an adjournment due to the fact that my representation (Mid North Coast Advocacy) will not be available for this date, and as I am unable to get time off work at such late notice I am unable to attend myself on this day. Thanking you Danielle Moore… ." 26 On 14 January 2005 the landlords' agent attended the CTTT, the plaintiff did not attend. The CTTT refused the plaintiff's application for an adjournment and dismissed the plaintiff's application.

The Tribunal Member's decision 27 The plaintiff submitted that, in addition to the CTTT's failure to apply the correct legal principles, in particular the CTTT's legislated obligations to the parties, and the error of fact outlined above, in the overall circumstances, the decision of the CTTT to refuse an adjournment was plainly unjust. It is submitted that the exercise of the CTTT's discretion miscarried and the refusal of an adjournment denied the plaintiff procedural fairness. 28 On 9 June 2005 the Tribunal Member E Cooper provided his written reasons. His reasons for not granting an adjournment are as follows: "1. On 13 January 2005, the Applicant sent a facsimile to the Registry of the Consumer, Trader and Tenancy Tribunal seeking an adjournment "due to the fact that my representation (Mid North Coast Advocacy) will not be available for this date, and as I am unable to get time of (sic) work at such late notice I am unable to attend myself on this day".

2. On the hearing date of 14 January 2005, the Applicant did not attend and sent no representative. The Respondent objected to the adjournment on the grounds that: a) The lease had been terminated by consent of the parties on 29 December 2004.

b) The property had been sold and the Respondent would be put to further time, trouble and expense if the matter was adjourned.

c) The Applicant's claim for compensation for loss of quiet enjoyment was not sustainable because: (i) The property had not been advertised as a rural property. (ii) The tenant only leased part of the property. (iii) There was a second driveway on the property which had been used by heavy vehicles for a period of about 3 weeks in July/August 2004. This did not form part of the leased property." 29 The Tribunal Member decided to refuse the adjournment because no substantial reasons have been provided and injustice would result to the respondent. 30 The Tribunal Member then dismissed the plaintiff's application for termination and compensation on the following grounds: (1) The tenancy was terminated by consent of the parties on 29 December 2004. The Tribunal notes that the landlord acknowledges that the landlord has no grounds to make any claims against the tenant in relation to the tenancy. (2) The application for compensation allegedly applies to the period from April to September 2004. Section 16(1) of the Residential Tenancies Act 1987 requires the application to be filed within 30 days of the Applicant becoming aware of the breach. The application is therefore out of time." 31 The plaintiff availed herself of the opportunity to apply for an adjournment. She clearly stated what her reasons were for seeking the adjournment. Those reasons were taken into account by the Tribunal Member. The defendant opposed the application for adjournment and gave reasons for doing so. It is my view that the Tribunal Member was entitled in the exercise of his discretion to refuse to grant the adjournment. The Tribunal Member then dealt with the plaintiff's claim on its merits. Even if there was an error in the calculation of the plaintiff's time in which she could make a claim, this did not change the fact that the plaintiff would have required an extension of time. There has been no denial of procedural fairness. The decision of Tribunal Member Cooper dated 14 January 2005 is affirmed. The summons filed 18 March 2005 is dismissed. 32 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed.

(1) The decision of Tribunal Member Cooper dated 14 January 2005 is affirmed.

(3) The plaintiff is to pay the defendants' costs as agreed or assessed.

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.