O'Hara v Consumer Trader and Tenancy Tribunal & Ors

CATCHWORDS : Appeal from decision from Consumer Trader and Tenancy Tribunal - refusal of application for adjournment - whether procedural unfairness - costs.

LEGISLATION CITED : Consumer Trader and Tenancy Tribunal Act 2001 Residential Tenancy Act 1987

CASES CITED : Italiano v Carbone & Ors [2005] NSWCA 177

Louise O'Hara - Plaintiff Consumer Trader and Tenancy Tribunal - First Defendant PARTIES : Jared Russell - Second Defendant Jeremy Burton - Third Defendant Daniel O'Connor - Fourth Defendant

Plaintiff in person COUNSEL : Mr A Arnott - Second Defendant No appearance - Third Defendant No appearance - Fourth Defendant

Plaintiff in person SOLICITORS : Arnotts Lawyers - Second Defendant No appearance - Third Defendant No appearance - Fourth Defendant

LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT JUDICIAL OFFICER : Consumer Trader and Tenancy Tribunal Member Mr Murphy

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

30097/2006 - Louise O'HARA v CONSUMER TRADER and TENANCY TRIBUNAL & Ors

JUDGMENT 1 HIS HONOUR: The plaintiff appears for herself in this matter. By an Amended Summons filed on 15 December 2006 she seeks an order that the orders of the Consumer Trader and Tenancy Tribunal (CTTT) made on 3 March 2006 be set aside and that the matter be remitted to the CTTT for rehearing. Since the original Summons was not filed in this Court until 2 August 2006, the plaintiff also seeks an order that time be extended for the filing of her Summons to appeal from the decision of the CTTT. 2 The basis for the plaintiff's application is described in the Amended Summons as "denial of natural justice". On inquiry the plaintiff's application is brought pursuant to s 65(3)(b) of the Consumer Trader and Tenancy Tribunal Act 2001 (the Act) on the basis that she has been denied procedural fairness. The plaintiff submits that an application for adjournment by her was wrongly refused by the CTTT and as a result she lost the opportunity of putting forward her case. That is the issue which is before the Court.

Factual background 3 Although the plaintiff disputed a number of peripheral details, the essential background to the matter appears to be as follows. I have relied largely upon the material in the plaintiff's affidavit of 2 August 2006 and that of Jared Russell of 7 December 2006. 4 The plaintiff is the owner of a property at 7 Winslow Street, Kirribilli (the property). The plaintiff leased the property to the second, third and fourth defendants (the defendants) between 26 May 2004 and 26 January 2005. Prior to the defendants entering the lease, they paid a rental bond of $1740. The defendants appear to have left the property on the specified date. 5 On 5 May 2005 the plaintiff made application to the CTTT for an urgent hearing seeking orders for rectification of damage to the property and other relief. The plaintiff's application was set down for hearing on 23 May 2005. Before that matter came on for hearing it was withdrawn by the plaintiff. 6 On 1 July 2005 the defendants applied to the CTTT for an order for the return of the rental bond from the plaintiff. The matter was fixed for hearing by the CTTT on 27 July 2005. The plaintiff did not attend on 27 July 2005 and orders were made for the rental bond to be returned to the defendants. 7 On 5 September 2005 the plaintiff applied to the CTTT for a rehearing of the matter relating to the return of the rental bond. On 26 September 2005 the plaintiff's application for a rehearing of that matter was granted and the order of 27 July 2005 was stayed. The rehearing was fixed for 6 October 2005. 8 On 27 September 2005 the plaintiff requested an adjournment of that rehearing. The request was refused and the plaintiff was notified of that refusal by letter dated 30 September 2005. 9 On 28 September 2005 the plaintiff filed an application with the CTTT seeking an order that the defendants pay compensation under s 16 of the Residential Tenancy Act 1987 and for the bond plus interest to be offset against this debt. The amounts particularised by the plaintiff in that claim were as follows:

Rent $1,566.43, cleaning $537.21, painting $4,213, window lock keys $242, glass pane broken $309.40, water usage $163.80, roof damage $456.98 plus painting of ceiling, damage to light switches and bayonet fitting $135, damage to lounge floor $1,710, missing sieve, plug and doormat $19.08, hedge $85, damage to letterbox $19.95, telephone $312.11, removal of goods $90 and non-financial loss $10,000. 10 On 6 October 2005 the parties appeared before the CTTT and engaged in conciliation. This was unsuccessful. The plaintiff then requested an adjournment on the basis that she was too unwell to give evidence. A medical certificate in non-specific terms was tendered by her. The adjournment was granted and the rehearing was adjourned to a date to be fixed by the Registrar. Included in the orders made by the CTTT were the following: "1. An adjournment shall only be granted on the next occasion in exceptional circumstances. 2. If the applicant is unable to attend the next hearing, the applicant shall appoint an agent or a representative to appear on her behalf by doing so in writing." 11 Both matters, ie the claim by the defendants for return of the rental bond and the plaintiff's claim for compensation, were fixed for hearing before the CTTT on 30 November 2005. Before the matter commenced, the plaintiff agreed to limit her claim to $10,000 being the jurisdictional limit of the CTTT in tenancy matters. On that occasion evidence was given by both sides and cross-examination took place. The matter did not complete and was adjourned to a date to be fixed by the Registrar. On 20 December 2005 the parties were notified by the CTTT that the matter would resume on 3 March 2006. The rehearing notice stated that: "Applications for adjournments should be in writing and well in advance of the hearing date …" 12 On 24 February 2006 the plaintiff telephoned the CTTT and requested an adjournment of the hearing. A file note in the CTTT records shows the following: "Mrs O'Hara rang to inform she is going to be absent for a file viewing organised for Monday 27.2.06. Mrs O'Hara said she has to leave urgently for Queensland because a member of her family is extremely sick. Mrs O'Hara believes she may be absent at the hearing on 3.3.06 because of the situation in the family. I informed Mrs O'Hara of the following: That I'll note her conversation and if she wants to ask for an adjournment she has to make a written request; if no request is made and she is absent at the hearing then, the hearing may go ahead in her absence." 13 On 28 February 2006 the plaintiff sent by way of facsimile transmission a handwritten letter to the Registrar of the CTTT as follows: "Dear Madam, I write to confirm my telephone advice last Friday to Ronny that it was necessary for me to fly to be at my mother's side as she became dangerously ill while in hospital. I had only been back in Sydney for a few days after being with her for three weeks. I will therefore be unable to attend the Tribunal hearing this week and I seek an adjournment. I also requested last Friday that the Tribunal notify the tenants. I am concerned that the Tribunal member refers to the "tenants' bond" when the Tribunal has to determine how the tenancy bond will be distributed. I have suffered significant damage and trauma caused by these tenants and I have waited a long time for compensation. I attended the previous hearing but the scheduled time was manifestly inadequate. For the sake of natural justice it is necessary for me to give my evidence in the hearing of this matter. I would appreciate your understanding of my position. Yours sincerely, Louise O'Hara" 14 On 2 March 2006 the plaintiff was left a voicemail message by the CTTT notifying her that her request for an adjournment in her letter of 28 February 2006 was not granted. I accept the plaintiff when she says that she did not receive that voicemail communication because she was in Queensland at the time. 15 When the matter came on for hearing before CTTT member Mr Murphy on 3 March 2006, there was no appearance by the plaintiff. The plaintiff's letter of 28 February 2006 was placed before Mr Murphy. Mr Murphy gave a copy of the letter to Mr Russell and Mr Burton, who were the two defendants who had attended the hearing to represent themselves. They opposed the adjournment being granted on the basis that this was the third time that they had attended the Tribunal in relation to this matter and that they were losing wages. They complained that the plaintiff had not notified them of her intention to ask for an adjournment. 16 Mr Murphy rejected the plaintiff's adjournment application. The transcript records the refusal of Mr Murphy to grant the adjournment in the following terms: "First of all what I am going to do in relation to the landlord's claim and request for an adjournment. I am not satisfied based on the letter provided by the landlord that there is a sufficient reason for an adjournment. I am not going to grant that. The landlord claims she is unable to attend because of some medical difficulties with her mother. There is no supporting evidence of that. The matter has been listed for a whole day today and in my view I think it is an effort in frustrating the progress of this claim. I'm not going to grant that request for an adjournment. There is no appearance of the applicant in this matter so I'm going to dismiss the claim because there is no satisfactory explanation for the non-attendance of the landlord that has been given to the Tribunal …" 17 In his decision the following reasons were given: "The landlord requested a number of adjournments by facsimile prior to the first hearing of the matter on 6 October 2005 which were determined by the Chairperson of the Tribunal and refused. A further adjournment was requested by the landlord in person on 6 October 2005 and a medical certificate was presented to the Tribunal in support of this application. The landlord refused to provide information as to the nature of the illness. The Tribunal declined to grant an adjournment as it was not satisfied that, in the circumstances, the illness was sufficient to prevent the landlord from preparing and presenting her case. The landlord also argued that she was unable to attend as a relative was seriously ill and required her care. The Tribunal directed her to appoint another person to appear at the Tribunal if she was unable to appear herself. An adjournment request was made by the landlord by facsimile by 28 February 2006, prior to the hearing on 3 March 2006 which was considered by the Chairperson of the Tribunal and refused. The same request was presented to the Tribunal at the hearing on 3 March 2006 and declined as the landlord was earlier placed on notice to make arrangements for another person to attend on her behalf if she was unable to attend the Tribunal herself." 18 On the basis of the evidence which had been given on 30 November 2005, Mr Murphy allowed in the plaintiff's favour some amounts by way of unpaid rent and $100 to clean the premises. He otherwise dismissed the plaintiff's claim and made an order that the plaintiff pay to the defendants the balance of the rental bond, ie $963.57. 19 The plaintiff's application for an adjournment on this occasion was based on fact. Her mother was seriously ill and died on 8 March 2006. The plaintiff says that she was distraught and upset because of her mother's illness. She got on the first plane that she could on 24 February 2006 and when she sent the letter of 28 February 2006 by facsimile, she sent it from Queensland. That is confirmed by the facsimile notation on the letter received by the CTTT. 20 The plaintiff has explained her delay in commencing proceedings in this Court on the basis that there was a considerable delay in obtaining the reasons for the Tribunal's decision and because she as a lay person does not have legal expertise. I accept the plaintiff's explanation for delay and subject to her succeeding on her substantive application I am prepared to extend time for the filing of her Summons.

Consideration 21 One of the functions of the CTTT is to adjudicate disputes between landlords and tenants. It is not constrained by the formality of a courtroom. Its objects are to ensure that it is accessible, its proceedings are efficient and effective, its decisions are fair and to enable proceedings before it 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 of the Act). 22 The CTTT nevertheless has its own statutory obligations to ensure fairness in its consideration of matters before it. Section 35 provides: "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." 23 Accordingly, despite the significant degree of flexibility which the CTTT has in determining the manner in which proceedings before it will be conducted, it must comply with those provisions such as s 35 which are expressed in obligatory language and which constitute core elements of procedural fairness (Italiano v Carbone & Ors [2005] NSWCA 177 at [105] and [106]). 24 In this case the serious illness of the plaintiff's mother in my opinion did constitute a proper reason for an adjournment. I accept that the deterioration in the mother's condition was sudden and unexpected otherwise the plaintiff would not have returned from Queensland after spending some three weeks with her. I also accept that the deterioration in her mother's health would have been very upsetting to the plaintiff. Absent other considerations, she was entitled to an adjournment for the reason which she advanced to the CTTT in her letter of 28 February 2006. 25 Having said that, I have considerable sympathy for the position in which Mr Murphy and Messrs Russell and Burton found themselves when the plaintiff's letter of 28 February was placed before them on 3 March 2006. As is clear from the statement of facts, the plaintiff had made a number of specious adjournment applications on earlier occasions. One could not help but form an impression that the plaintiff was consciously seeking to drag out the proceedings in the CTTT and avoid their finalisation. In view of the reasons given by Mr Murphy in his decision of 3 March 2006 I also have a suspicion that there is little substance in the plaintiff's claim for compensation and that the dispute is in reality over a relatively modest sum of money being primarily the rental bond of $1,740. Against that background it is easy to see why in the absence of any substantiation the bare assertion of hardship by the plaintiff in her letter of 28 February would be disregarded, both by the CTTT member and by the defendants. 26 The plaintiff by her previous conduct in the proceedings before the CTTT had brought about a situation where an application for adjournment by her would not be granted unless that application was substantiated or corroborated in some fashion. Tendered, on behalf of the defendants in the proceedings before me, were four decisions of the CTTT and its predecessor, the Residential Tribunal of New South Wales, in which the plaintiff had been involved in disputes with her tenants concerning rental matters and in which numerous applications for adjournment, some successful some unsuccessful, had been made by the plaintiff. On at least two occasions decisions had been made by the relevant Tribunal in the plaintiff's absence. It is clear that as of February 2006 the plaintiff was well aware that if she wished to make a successful adjournment application she had to provide some corroboration or substantiation of the basis on which the application was being made. 27 Had the plaintiff's application for adjournment in this case been based on ill health or inconvenience I would have no hesitation in dismissing the Summons given the circumstances of this case and the way in which the plaintiff has conducted it in the CTTT. That, however, is not the situation. The situation which confronted the plaintiff in February 2006 was stressful and emotionally demanding. It did involve genuine compassionate considerations and had the CTTT been persuaded as to the genuineness of the application and the seriousness of the illness from which the plaintiff's mother suffered, an adjournment would undoubtedly have been granted. It was the plaintiff's own fault due to her earlier conduct in the litigation and in failing to make clear to the CTTT the seriousness of her mother's condition that led to the adjournment being refused. The decision of the CTTT member is understandable in those circumstances. 28 Nevertheless as s 35 of the Act provides and as the general law requires, a litigant is entitled to put his or her case and s 35 requires the CTTT to ensure that such an opportunity is given. Despite the shortcomings of the way in which she put her application, the plaintiff had a proper reason for seeking an adjournment. I am prepared to accept that, due to the stress associated with her mother's illness, the plaintiff was not thinking in terms of what was necessary to make a successful adjournment application and that a failure to provide full information to the CTTT on this occasion can be excused for that reason. 29 In the circumstances I am satisfied that the plaintiff has been denied procedural fairness. An adjournment should have been granted to her because of the serious nature of the illness of her mother and that in the circumstances the plaintiff should be given an opportunity to present her case before the CTTT. 30 Accordingly, I propose to make the orders sought by the plaintiff in her Summons. 31 Although the plaintiff has succeeded in her application, I do not propose to award costs in her favour. As I have indicated, the situation which led to the CTTT refusing her adjournment application was one of her own making. It was due to her previous conduct in this matter before the CTTT and due to her failure to provide full information to the CTTT concerning the basis for her adjournment application.

(i) I extend the time for the filing of the plaintiff's summons to 2 August 2006.

(ii) The orders of the Consumer Trader and Tenancy Tribunal made on 3 March 2006 are quashed.

(iii) The matter is to be remitted to the Consumer Trader and Tenancy Tribunal for rehearing.

(iv) I make no order as to costs with the intention that each party pay his or her costs of the proceedings in this Court.

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.