Sam Robert Dragut t/as Sam's Bathrooms v CTTT & 2 Ors

Evet Zieleman (Third Defendant) FILE NUMBER(S) : SC 30082/2003 Mr D C Fitzgibbon (Plaintiff) COUNSEL : Mr G Elliott (Second & Third Defendants) Woodgate Lawyers (Plaintiff)

Submitting Appearance SOLICITORS : (First Defendant)

Ms F Frischer, Office of Fair Trading (Second & Third Defendants)

LOWER COURT Consumer Trader and Tenancy Tribunal of NSW JURISDICTION : LOWER COURT HB0242162 FILE NUMBER(S) : LOWER COURT N/A JUDICIAL OFFICER :

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

30082/2003 - SAM ROBERT DRAGUT t/as SAM'S BATHROOMS v CONSUMER TRADER & TENANCY TRIBUNAL & 2 ORS

JUDGMENT (Appeal from decision of CTTT - alleged non-receipt of notice of hearing - denial of procedural fairness) 1 Master: By amended summons filed 22 October 2003 the plaintiff seeks firstly, a declaration that he was denied procedural fairness in relation to the hearing held at the Consumer, Trader & Tenancy Tribunal (CTTT) on 28 November 2002; secondly, an order that the decision of the CTTT in respect of Application No. HB0242162 made on 28 November 2002 be quashed; and thirdly, an order that the matter be remitted to the CTTT for rehearing. 2 The plaintiff is Sam Robert Dragut t/as Sam's Bathrooms. The first defendant is the CTTT, which has filed a submitting appearance. The second defendant is Nadiene Anne Wallace. The third defendant is Evet Zieleman. The plaintiff relied on his affidavits sworn 17 September 2003, 2 April 2004 and 23 June 2004. The second and third defendants relied on the affidavit of Fabiola Maria Campora sworn 4 June 2004 and their affidavits both sworn 9 June 2004. The plaintiff and the second and third defendants were cross-examined. 3 The dispute between the plaintiff and the second and third defendants related to the quality of bathroom renovation work performed by the plaintiff at 25 George Street, Barnsley and whether there were subsequent attempts to rectify this work. 4 On 28 November 2002, the CTTT made the following orders: "1. The Tribunal orders that Sam Robert Dragut t/as Sams Bathrooms, licence number 84346C, is to pay Nadiene Wallace & Evert Zieleman the sum of $3595.00, on or before 19/12/02. 2. The Tribunal declares that the sum of $500.00 is not due and owing by the applicants to the respondent in respect of work done pursuant to quote 20 August 2001 and tax invoice 18 September 2001." Grounds of review

5 The plaintiff's grounds of review are that the Tribunal Member erred in failing to give the plaintiff notice of the 28 November 2002 hearing and denied the plaintiff procedural fairness by proceeding to hear and determine the application in the absence of the plaintiff. The notice of hearing was issued by the CTTT and forwarded to him. 6 On 16 September 2002 Mr Dragut moved to 21 Terrigal Street, Morisett because vacant possession of his residence at 23 Terrigal Street, Morisett was given to his former wife, Mary Dragut (Wray) by an order of the Family Court made 9 September 2002. His post office box in Morisett was not operative as from April 2002. From 16 September 2002 he was residing with his current wife in a caravan on the property 21 Terrigal Street, Morisett. This was the address to which the notice of hearing was sent. 7 Section 65(3)(b) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the Act) provides that relief may be granted by way of a judgment or order in the nature of prohibition, mandamus, certiorari, and a declaratory judgment or an injunction if in relation to the hearing or declaration of the matter, a party has been denied procedural fairness. Section 67(3) of the Act provides that after deciding the question of the subject of an appeal the court may remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal. 8 The plaintiff lodged two applications for rehearing by the CTTT on the basis that he did not receive the Notice of Hearing dated 14 November 2002 advising him of the hearing. Each application was refused on the basis that the applicant had not suffered substantial injustice.

The Tribunal Proceedings 9 The plaintiff received the defendants' application dated 27 May 2002 which was forwarded to "Sam Robert Dragut PO BOX 185 Morisett NSW". When the matter was originally listed for hearing on 5 November 2002 Mr Dragut was ill. On 5 November 2002 he phoned and faxed a letter to the Tribunal stating that he had not been well since the previous night and did not have a car. On 5 November 2002 the Tribunal Member adjourned the hearing to a date to be fixed. This notice of order dated 7 November 2002 also stated that a separate written notice of the hearing date would be sent to him in the near future. 10 Mr Dragut's evidence is that he actually received the notice dated 7 November 2002 but he did not receive the notice of hearing dated 14 November 2002. The CTTT file contains notices of hearing dated 7 November 2002 and 14 November 2002. Both notices were forwarded to Mr Dragut at his post office box address and his residential address. The documents forwarded to the post office box were returned to the CTTT on 30 May 2003. This occurred well after both rehearings had taken place. The notice dated 14 November 2002, which was forwarded to the plaintiff at his residential address, was never returned to the CTTT. 11 Section 35 of the Act provides that the Tribunal must ensure that each party in any proceedings is afforded a reasonable opportunity to call or give evidence and otherwise present the party's case and to make submissions in relation to the issues in the proceedings. Whether there is a denial of procedural fairness depends on the circumstances in each case. What the principals of natural justice or procedural fairness require in particular circumstances depends on the circumstances known to the CTTT at the time of the exercise of its power or further circumstances which, had if acted reasonably or fairly, it would have known - see Kioa v West (1985) 159 CLR 550, particularly at p 762.

The Tribunal hearing 12 On 28 November 2002, at the outset of the hearing when the Tribunal Member became aware that Mr Dragut was not present, the Tribunal Member attempted unsuccessfully to contact him by telephone. 13 The Tribunal Member in his reasons for decision stated: "There was no appearance and no evidence for the Respondent. The Tribunal noted that the Notice of Hearing appeared to have been served on the Respondent and that it could proceed to hear and determine the claim ExParte." 14 On page 2 of the transcript of the Tribunal hearing held on 28 November 2002, the Tribunal Member dealt with the issue now in dispute, stating: "… Now, as far as I can see, the notice of the hearing was sent to 21 Terrigal Street and (indistinct) the addresses we had for the respondent. They haven't been returned and I can only assume that there's been service and the respondent has decided not to attend so we'll proceed on an ex parte basis." 15 According to the transcript of the Tribunal hearing held on 28 November 2002, after the Tribunal Member's remarks, the second defendant informed the Tribunal Member that she had forwarded documents to the plaintiff's PO Box address in accordance with the Tribunal's previous orders. The documents listed (aff 18 November 2002) do not include the notice of hearing. Ms Wallace's evidence is that these documents were not returned to her. Even if I were to accept that the plaintiff did not receive the letters addressed to the post office, the question remains as to whether Mr Dragut received the notice of hearing forwarded to him at 21 Terrigal Street, Morisett. 16 The plaintiff gave evidence that he did not receive it. He was in receipt of the notice dated 7 November 2002, which had been posted to his residential address. This document would have alerted him to expect another notice of hearing being received by him in the near future. When he did not receive a further notice of hearing within a few weeks, he did not elect to telephone the Tribunal to ascertain whether a hearing date had been allocated. Rather, he waited until he received a copy of the orders made by the Tribunal on 12 February 2003. In his affidavits the plaintiff omitted to record that by December 2002 he had become aware that orders had been made against him. In a handwritten letter received by the Tribunal on 20 December 2002, Mr Dragut requested a copy the reasons for the decision so that he could understand his position. 17 It is my view that the Tribunal acting reasonably and fairly was unaware that Mr Dragut had not received the notice of the hearing to be held 28 November 2002. Even if Mr Dragut had not received that notice of hearing, he was on notice that a hearing date was to be allocated by the CTTT shortly after 5 November 2002. He could have made enquiries of the Tribunal but chose not to do so. It is my view that in these circumstances there has been no denial of procedural fairness. The rehearing applications The first rehearing

18 On 5 March 2003 the plaintiff lodged an application for rehearing with the CTTT. On 18 March 2003, F Hancock on behalf of the Registrar provided written reasons for refusing to grant the application for rehearing and stated: "The Tribunal is not satisfied that the applicant has shown on the face of the application that they may have suffered a substantial injustice. The rehearing application was made shortly out of time. I am not satisfied that Mr Dragut did not receive notice of the hearing. No mail was returned by Australia Post, and the applicants also gave notice to him. It would be strange for both letters to go astray, and for there to be no returned mail. APPLICATION FOR A REHEARING NOT GRANTED"

The second rehearing 19 The plaintiff made a second application for rehearing with the CTTT. On 15 July 2003 N Inness on behalf of the Registrar provided written reasons for refusing to grant the application for a second rehearing and stated: "This is the second application by Mr Dragut for a rehearing. The first rehearing application was refused on 13/03/03. S.68(8)(c) provides that the decision is final. APPLICATION FOR A REHEARING NOT GRANTED" 20 It is my view that the plaintiff was not denied procedural fairness in the conduct of the hearing or the rehearings. His claim fails. 21 Further, the plaintiff received the reasons for the tribunal's decision on 16 February 2003 but did not commence these proceedings until 16 September 2003. I accept that he made two applications for rehearing, one in March 2003 and one in July 2003 to the Tribunal, both of which were unsuccessful. The second one would have been of doubtful utility. Proceedings were not commenced in this Court until about 10 months after the decision of the CTTT was made. I accept that the tapes of the proceedings in the CTTT did not become available until April 2004 but this was not a reason proffered for the delay in commencing these proceedings. Also taking this delay into account, in the exercise of my discretion, I would not make an order under s 65 of the Act. 22 The decision and orders made by the CTTT on 28 November 2002 are affirmed. The appeal is dismissed. The plaintiff's amended summons filed 22 October 2003 is dismissed. 23 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the second and third defendants' costs as agreed or assessed.

Orders 24 The court orders that: (1) The decision and orders made by the CTTT on 28 November 2002 are affirmed. (2) The appeal is dismissed. (3) The plaintiff's amended summons filed 22 October 2003 is dismissed. (4) The plaintiff is to pay the second and third defendants' costs as agreed or assessed. **********

Last Modified: 09/08/2004 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.