Ross v Consumer, Trader & Tenancy Tribunal of NSW & Anor

LOWER COURT Consumer Trader & Tenancy Tribunal of NSW JURISDICTION : LOWER COURT GEN 02/31009 FILE NUMBER(S) : LOWER COURT Member Farey JUDICIAL OFFICER :

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

30099 of 2002 David Anthony Ross trading as Credit Accounting Consultancy v Consumer, Trader & Tenancy Tribunal of NSW & Anor

JUDGMENT 1 MASTER: The plaintiff is in the business of providing financial management services to the public. More detail as to the nature of this business may be found in an affidavit sworn by his solicitor (Mr Martin) on 16 October 2002. 2 He retains consultants, who interview and advise clients and collect moneys for fees and services from the clients. One of those consultants was Mr Wright. 3 Mr Balin (who is the second defendant in these proceedings) is a litigant in person. He was living in Newcastle. He was a bus driver and has been unemployed. He has limited financial means and was unable to afford legal representation. 4 The second defendant sought services from the plaintiff (he wanted a loan). He was seen by Mr Wright. He paid moneys to him. He did not receive the services and he did not get his moneys back. 5 The second defendant brought an application in the Consumer, Trader and Tenancy Tribunal (the Tribunal). A notice of hearing was served on the plaintiff. He disputes that he received all of the relevant documentation that was relied on by the second defendant. The material does not make clear what it is that he says that he did not get. 6 The matter came before the Tribunal on 27 August 2002. Prior to that time, the plaintiff did not take advantage of the procedures provided by the Tribunal to either apply for an adjournment or to place his documentation before it. He did not seek further of the second defendant's material. 7 On 27 August 2002, Mr Martin as solicitor for the plaintiff attended the Tribunal and made applications on behalf of the plaintiff. The plaintiff was not present. The transcript of the proceedings before the Tribunal reveals as the only explanation offered by Mr Martin for his absence as being "Mr Ross isn't always in Sydney". 8 Mr Martin made two applications. One was for an adjournment. The other was for legal representation. 9 The transcript reveals that the adjournment was sought on the basis that the plaintiff had not received full notice and/or the paperwork that underlies the claim. 10 The second application was for the plaintiff to be legally represented. It has not been said that he was unable to represent himself. The basis upon which the application for legal representation was made may be found at page 4 of the transcript. In essence it appears to concern the plaintiff's contention that he has been the victim of fraud perpetrated by Mr Wright. The plaintiff was presented as being desirous of agitating this matter before the Tribunal (hitherto the matter had not been put before the Tribunal). It has since been said to throw up arguably complex matters of fact as well as a point of law. 11 Both applications were rejected. Following the rejection of the applications, nothing further was put to the Tribunal by Mr Martin for the purpose of enabling Mr Ross to be present and thereby being able to conduct his own case. The Tribunal proceeded to hear the application. The court has been told that Mr Martin was allowed to remain and that he did so for some time but left before the conclusion of the hearing. 12 The hearing concluded and the plaintiff was ordered to pay the second defendant the sum of $2,833.01. 13 These proceedings were commenced by Summons filed on 23 October 2002. The proceedings appear to have been filed out of time. If that is the case, the proceedings are presently incompetent. As that matter has not been argued before me, I put it aside for present purposes. The Summons seeks to challenge the decision of the Tribunal on a number of grounds. I shall now proceed to deal with the grounds that were argued. 14 The refusal of the two applications is said to give rise to a denial of natural justice. I do not accept that submission. In my view, there was no denial of natural justice. 15 Mr Martin was allowed to make the applications on behalf of the plaintiff. He was given a reasonable opportunity to be heard. He took advantage of that opportunity and his submissions were considered by the Tribunal. 16 The material does not support the view that the plaintiff was unable to be present at the Tribunal. It seems as though his absence may have been a matter of personal choice. It may be that he made an ill judged attempt to frustrate the prosecution of the second defendant's claim. 17 Whatever may have been his intention, he had the benefit of legal advice (indeed, he was involved in a number of matters before the Tribunal) and should have been aware that his applications may be refused and that the hearing of the proceedings may then take place. Further, following the refusal of the applications, no attempt was made inter alia for an appropriate short adjournment to enable the plaintiff to be present for the purposes of the conducting of his case (if that is what he had intended to do). 18 The plaintiff looks to s 35 of the Consumer, Trader And Tenancy Tribunal Act 2001 (the Act). It appears in Pt 4 of the Act ("Procedure of Tribunal"). Broadly speaking, the section provides that the Tribunal must ensure that each party in any proceedings is given a reasonable opportunity to present his or her case. 19 In my view, the plaintiff was given the requisite opportunity. He took a course which saw him failing to take advantage of that opportunity. 20 The granting of legal representation is covered by provisions contained in s 36 of the Act and clauses 13 and 14 of the Consumer, Trader And Tenancy Tribunal Regulation 2002 (the Regulation). 21 The relevant provisions are as follows:- CONSUMER, TRADER AND TENANCY TRIBUNAL ACT 2001 "36. Representation of parties

(1) Except as provided by this section, a party in any proceedings has the carriage of his or her own case and is not entitled to be represented by any person.

(2) A party may, in accordance with the regulations, apply to the Tribunal for permission to be represented by a person in the proceedings or in part of the proceedings. The Tribunal may approve any such application and make an order permitting the party to be represented.

(3) In any proceedings where an amount is claimed or disputed, a party is not entitled to be represented by a legal practitioner if the amount does not exceed $10,000 (or such other amount as may be prescribed by the regulations) unless the Tribunal is of the opinion that the exceptional circumstances of the case warrant such representation.

CONSUMER, TRADER AND TENANCY TRIBUNAL REGULATION 2002 "13. Application for representation

(1) An application under section 36 (2) of the Act by a party to the Tribunal for permission to be represented in any proceedings may be made:

(a) in writing addressed to the Registrar and lodged before the date set down for hearing of the proceedings, or (b) by oral submission at the commencement of the hearing.

(3) If an application for representation is made in writing, the applicant may include submissions in relation to the competence of the proposed representative or any matter the applicant desires to address in support of the application.

(4) An application for permission to be represented cannot be determined by the Tribunal unless each other party to the proceedings has been given an opportunity to make oral or written submissions in relation to the application.

(5) In making an order permitting a party to be represented in any proceedings, the Tribunal may impose such conditions in relation to the representation as the Tribunal thinks fit.

14. Circumstances in which application for representation may be made An application under section 36 (2) of the Act by a party for permission to be represented in any proceedings may be made in any one or more of the following circumstances only:

(a)……………. ………………. (q) if the Tribunal is of the opinion that the party would be placed at a disadvantage if not represented at the hearing,

(r) if the Tribunal is of the opinion that representation should be permitted as a matter of necessity due to the likelihood that complex issues of law or fact will arise in the proceedings." 22 Before looking at the structure of the relevant provisions, it may be noted that it was open to the plaintiff to make an application in writing prior to the hearing date and that he did not do so. 23 The starting point is as set forth in subs (1) of s 36. It was intended that the parties would have the carriage of his or her own case unless the Tribunal approved an application for legal representation. This appears to have been intended as a general rule. The second reading speech recites that parties will continue to be largely required to carry the conduct of their own cases. This seems to be consistent with an intention to establish a specialised consumer trader disputes resolution forum (outside the court system) for smaller claims. 24 In the present case, because of the small amount involved, the parties were not entitled to be represented by a legal practitioner unless the Tribunal was of the opinion that the exceptional circumstances of the case warranted such representation. 25 Clause 14 of the Regulation enables applications to be made only where the circumstances specified therein are present. 26 It seems to me that the purpose of this provision was to impose threshold requirements which must be satisfied before the Tribunal can proceed to approve an application and make an order pursuant to subs (2) of s 36. 27 In the light of the material before the Tribunal, it is my view that it was open to the Tribunal to conclude that the threshold requirements had not been satisfied and to not form the opinion that the circumstances of this particular case were exceptional. 28 The expression "exceptional circumstances" is not defined. This expression (and like expressions which contain the word "special") appear in various provisions without definition (see inter alia Stavert v Stavert (Supreme Court, unreported, 30 July 1998) ). 29 The dictionaries tend to define "exceptional" as "forming an exception; unusual; extraordinary.". 30 Each case has to be looked at in the light of its own particular facts. It may not be a productive exercise to embark on the task of seeking to further define "exceptional circumstances". 31 In this case, it was said that there were arguably complex matters of fact as well as a point of law (whether or not Mr Wright in his dealings with Mr Balin was acting within the scope of his employment). 32 The plaintiff had not raised any issues in the Tribunal. Mr Martin did not put material before the Tribunal which supported the assertion of arguably complex matters of fact as well as a point of law. What was before the Tribunal appeared to be relatively simple. The Tribunal was established largely to enable questions of fact (whether complex or otherwise) and questions of law to be decided without the assistance of legal representation. In my view, the circumstances of this case lack what might be regarded as forming an exception, being unusual or extraordinary. 33 For completeness I should add that if there be complex matters of fact and a point of law arising from what was said by Mr Martin they do not appear to arise in the claim made by the second defendant against the plaintiff. Rather, it may be that they are relevant only to whatever relief the plaintiff may seek against his consultant. 34 The plaintiff also raised a jurisdictional argument. The plaintiff relies on cl 29 of the Regulation. The relevant provisions are as follows:- "29. Ex parte proceedings

(1) The Tribunal may proceed to hear a matter in the absence of a party who has failed to attend the hearing:

(a) if it is satisfied that notice of the hearing was duly served on the party, or (b) if: (i) being satisfied that service of notice of the hearing has been duly attempted, or (ii) having given directions under clause 46 (6), the Tribunal considers that justice requires that the matter be dealt with in the absence of the party concerned.

(2) If a matter is adjourned by the Tribunal in the absence of a party, the Registrar is to give notice of the time and place of the adjourned hearing to the absent party. If the party who is so notified fails to attend the hearing, the matter may be dealt with in the absence of the party. " 35 The Regulation purports to enable the Tribunal to proceed to hear a matter in the absence of a party who has failed to attend the hearing in any of the circumstances specified therein. 36 In this case, the circumstances specified in (a) thereof were met. The Tribunal was satisfied that notice of the hearing was duly served. 37 Apart from what was said by Mr Martin, no material was placed before the Tribunal to substantiate the submission that was made. The transcript reveals that the Tribunal did have before it material (presumably in its files) which supported a finding of due service. In any event, the submission made by Mr Martin does little more than suggest that some of the material relied on by the second defendant had not been given to him. It is not said that the plaintiff did not have notice of the hearing. That he had such notice was confirmed by the appearance of Mr Martin. The finding made by the Tribunal was open on the material. 38 In my view, there is no substance in the lack of jurisdiction submission. 39 I should also add that it was not otherwise sought to demonstrate any error in the decision of the Tribunal. 40 The plaintiff bears the onus of satisfying the court that the decision of the Tribunal should be disturbed. In my view, that onus has not been discharged. 41 The Summons is dismissed. The plaintiff is to pay the costs of the Summons.

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