Souleles v Todd

Court of Appeal (NSW)|2016-04-28|Before: Beazley P, McColl JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

THE COURT; The applicant, Mr George Souleles, seeks leave to appeal against the decision of Harrison AsJ dismissing his summons seeking judicial review of a decision of the Consumer, Trader and Tenancy Tribunal (the CTTT): Souleles v Todd [2015] NSWSC 862. In that decision the CTTT ordered the applicant to pay Ms Todd, the respondent in this Court, $60,374 being damages for breach of statutory warranties and breach of contract.
By his summons seeking judicial review, the applicant sought relief in the nature of a writ of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW), on the basis that the CTTT had erred in law and/or made a jurisdictional error in determining the proceedings before it in circumstances where he was denied natural justice, in that he did not receive notice of the hearing and was not present at the hearing.
The applicant's principal contention was that he had never received any correspondence or notification at his residential address of the hearing date from the CTTT. He also contended the CTTT erred in law in hearing the matter in his absence having regard to cl 30 of the Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW) ("CTTT Regulation") (repealed with effect from 1 January 2014). He said he first became aware of the CTTT orders when he was served at his residential address with a creditor's petition founded on the CTTT order which had been registered as a judgment in the Local Court.

Background

The applicant was the respondent to proceedings brought in the CTTT by the respondent, claiming moneys she paid to the applicant in respect of building work he had contracted to perform, but which she alleged he had failed to complete. The respondent also claimed moneys for rectification work that she had been required to carry out together with a sum for loss of rent. As we have said, the respondent was awarded damages in a total sum of $60,374.00 by the CTTT.
The respondent's father served the application and a notice of directions hearing on the applicant at Legal Grounds Café ("Café") in Macquarie Street, Sydney. That business is owned by the applicant's brother-in-law. The CTTT application identified two "postal" addresses for service for Mr Souleles - an email address and the address of the Café. Those addresses, and Ms Todd's postal details, were entered on the document in a different handwriting to that with which the body of the document was completed. It can be inferred from the other handwriting that the "postal" addresses and "postal details" inserted on the application were not in Ms Todd's handwriting.
The applicant and the respondent both appeared at a CTTT directions hearing on 8 February 2013, during which a timetable for the service of evidence was set. Direction 3 made on that day required the applicant to serve his evidence by 8 March 2013. The primary judge found (at [11]) that on the same day, the CTTT sent to the applicant's email address a notice of the directions that had been made and that he received that notice.
On about 25 February 2013, the respondent requested an extension of time to comply with the 8 February 2013 directions. The applicant did not reply to a letter from the CTTT sent to the Café address asking whether he consented to the request. On 12 March 2013, the CTTT sent a letter to the Café address confirming that the respondent's request had been considered and directions had been made. The CTTT also emailed the applicant a copy of this letter. He received the letter containing those directions: primary judgment (at [26]). Direction 3 extended to 2 April 2013 the time for him to comply with Direction 3 made on 8 February 2013.
On 18 March 2013, the CTTT sent a notice to the applicant at the Café address advising him that the application was listed for directions before the Tribunal on 29 April 2013 at 10.15am. The applicant did not appear on that date. A notice was sent to the Café address to the effect that the hearing had been adjourned to a date to be fixed.
On 3 June 2013, a notice of hearing was sent by the CTTT to the applicant c/- the Café address to the effect that the hearing date had been fixed for 25 July 2013. A further letter was sent on 4 June 2013 indicating that the 25 July 2013 hearing had been adjourned, and that written confirmation of the new hearing date would be sent shortly. The latter notice was also sent to the applicant's email address. He received that notice.
On 14 June 2013, the CTTT sent another notice to the applicant c/- the Café address advising that the hearing was set down for 9.15am on 7 August 2013. The notice noted the possibility of the Tribunal deciding the matter in the applicant's absence.
The applicant did not appear on 7 August 2013. He had not complied with the directions for filing his evidence. The hearing proceeded in his absence. The Tribunal Member's judgment stated: "The respondent did not appear at the hearing of the matter and no reasonable excuse for the non-appearance has been provided to the Tribunal. The respondent has declined to participate in the hearing of the matter and has failed to file any evidence in accordance with the directions issued by the Tribunal. I am satisfied that a hearing notice was sent to the address provided by the respondent and that he has previously appeared before the Tribunal after notices of hearing were sent to his business address. The directions issued by the senior member on the last occasion put the respondent on notice that the hearing may proceed in his absence if he did not attend. Having regard to the previous non appearances and as no evidence has been filed I am satisfied that the justice of the case requires that the hearing proceed today, and in the absence of any application for adjournment the matter was dealt with in the absence of the respondent."
The applicant submits that the first of these paragraphs of the Tribunal's decision discloses the following errors. First, that the hearing notice was sent to the address he had provided. Secondly, that the Café is "his business address". Thirdly, that he had previously appeared before the Tribunal after notices of hearing were sent to that address.

The proposed appeal

The applicant's draft notice of appeal and summary of argument identifies three alleged errors in the primary judge's decision. In essence, the issues raised, in the order in which they were addressed in the written submissions, are: 1. Whether her Honour erred in making certain factual findings, in the absence of evidence or any available inference from the evidence: Draft Notice of Appeal: Ground 4 2. Whether her Honour erred in holding that there had not been a denial of procedural fairness in the CTTT hearing the case in the applicant's absence, such denial depriving the CTTT of jurisdiction, in circumstances where the applicant did not have notice of the Tribunal hearing and was not present when it occurred: Draft Notice of Appeal: Ground 2 3. Whether her Honour erred in declining to hold that the CTTT had no jurisdiction to make the orders in that the CTTT failed to exercise jurisdiction in accordance with the mandatory requirements of s 35 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("CTTT Act") (repealed with effect from 1 January 2014) and that the CTTT's finding fell within s 65(3)(a) of the CTTT Act and was thus ultra vires and of no effect: Draft Notice of Appeal: Ground 3.
Ground 1 of the Draft Notice of Appeal is a general ground alleging error.
Ordinarily leave to appeal will only be granted where the appeal would raise a question of principle, a matter of public importance is involved, or it is reasonably clear that there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge was in error: Lee v New South Wales Crime Commission [2012] NSWCA 262 at [12] per Bathurst CJ; Hudson v State of New South Wales [2012] NSWCA 319 at [5] per Meagher JA.

Impugned factual findings

On the hearing of the summons before the primary judge, affidavit evidence was read. The applicant gave evidence and was cross-examined. The applicant's evidence was relevantly directed to two matters. First, that he had never received any of the letters forwarded by the CTTT to the Legal Grounds Café and therefore had no notice of the hearing date. Secondly, that when he had attended at the Tribunal at the 8 February 2013 directions hearing, he had informed an officer of the CTTT of his residential address and observed the officer make a note of that address ("the CTTT conversation"). He also said that he was present in Court on 8 February 2013 when the Tribunal made "certain orders". He said he did not understand them.
Harrison AsJ rejected the applicant's evidence about giving his residential address to the officer at the CTTT as a "recent invention," both because she found him to be an unsatisfactory witness and, it appears, because it was inconsistent with contemporary documentary evidence, in particular, affidavits filed in the Local Court and NCAT. Each of those documents, her Honour said, set out what occurred at the CTTT, but did not refer to the CTTT conversation: primary judgment (at [20]). In general, her Honour formed an unfavourable view of his oral evidence: primary judgment (at [21]).
The applicant submits her Honour erred in relying upon the "omission" in those affidavits as they were intended to prove elements relevant to the proceedings in which they were prepared. However, as Harrison AsJ said (at [20]), this was not the applicant's evidence. Rather, he contended he had informed his legal advisers of the CTTT conversation, but they had omitted it: primary judgment (at [21]). No evidence of those instructions was adduced.
In our view, the conclusion of "recent invention" her Honour drew was open to her on the evidence.
Her Honour "had the very considerable advantage of seeing the [applicant] give [his] oral evidence and was thus able to bring to bear aspects of judgment and appraisal that are simply unavailable to this Court": Sahade v Bischoff [2015] NSWCA 418 at [77]. In light of the well-known principles enunciated in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, the applicant has no real prospects of success in persuading the Court Harrison AsJ made an erroneous finding of recent invention.
The applicant's first proposed ground of appeal does not raise any question of principle and has little, if any, prospect of success. We would not allow leave to appeal on this ground.

Determination in the absence of the applicant: the natural justice issue

Section 25 of the CTTT Act relevantly provided: "25 Notice of proceedings (1) If any proceedings are to be determined by a hearing, the Registrar must cause notice of the time and place that is fixed for the hearing to be given to each party in the proceedings. (2) If a party who has been notified under subsection (1) fails to attend at the time and place notified, the proceedings may be held in the absence of the party. …."
The power invoked by the CTTT in proceeding to determination on 7 August 2013 in the absence of the applicant was found in s 25(2) and in cl 30 of the CTTT Regulation, which was relevantly in the following terms: "30 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 50 (6), the Tribunal considers that justice requires that the matter be dealt with in the absence of the party concerned. … ."
Section 78(1)(a) of the CTTT Act relevantly provided that a notice or document may be given to or served on a person by sending it by post to "the residential or business address, or other address for service … of the person that was last known to the person giving or serving the document". Clause 50(3) of the CTTT Regulation enabled service of documents other than a summons to be effected in the manner provided by s 78 of the CTTT Act. Pursuant to cl 50(4) service was taken to have been effected at the end of the fourth working day after posting.
The applicant's submission in support of this ground was based on the proper construction and operation of cl 30. He contended that cl 30 requires the decision-maker to take positive steps to ensure that the party is notified and to make enquiries to ascertain whether it is appropriate to proceed in the party's absence: see Blue Haven Pools & Spas Ltd v Cunningham [2011] NSWSC 1435 ("Blue Haven") at [31] per Adams J.
The applicant correctly complains that the CTTT's finding, which appears to have been, in part at least, the basis upon which it found that justice permitted the matter to proceed in his absence, that the applicant had previously attended after notices were sent to the Legal Grounds Café, was factually wrong. In fact it appears from the CTTT records before the primary judge that the only occasion the applicant appeared before the CTTT was on 8 February 2013, after he had been personally served with the CTTT application. As to the other two errors upon which the applicant relies, there is no finding of fact to either effect, neither alleged error apparently having been relied upon before the primary judge.
We do not agree that there is a positive obligation on the Tribunal to make factual enquiries of the kind or extent that appeared to be indicated in Blue Haven. In this case, the Tribunal member was satisfied that notification had been sent to the applicant at what appeared to be a business address. The applicant's contention to the contrary was mere assertion.
The primary judge held (at [70]) that the applicant was aware that the application and notice of the directions hearing recorded an address, namely, "c/- Legal Grounds Café", that was not in fact his residential address (a matter stated in his affidavit of 23 June 2015) and he took no steps to advise the CTTT of his actual residential address. Her Honour further held that "c/- Legal Grounds Café" was an "other address for service" that was last known to the person [CTTT] serving the document (CTTT Act, s 78(1)(a)(ii)). Accordingly, she found the CTTT complied with its obligation to post the notice of hearing to the c/- Legal Grounds Café address. Her Honour also held that, on this basis, the Tribunal Member was satisfied that the notice of hearing was duly served and also considered that justice required that the matter be dealt with in Mr Souleles' absence (CTTT Regulation, cl 50(3)(a)(i) and cl 30). Accordingly, the Tribunal Member had acted in accordance with her statutory duties and had afforded procedural fairness.
In our view, the applicant has not established any arguable basis for contending her Honour erred in law in so finding. In addition to the matters upon which the primary judge relied, and in considering the prospects of success on appeal, we note that the Tribunal Member also relied on the fact the applicant had failed to file any evidence, thus indicating his non-participation in the hearing. The applicant was before the Tribunal when the directions concerning the filing of evidence were made. He said he did not understand the orders, yet gave evidence that he had had his evidence ready to file on 8 February 2013: primary judgment (at [17]).
The primary judge, as we have said, did not accept the applicant's evidence concerning the CTTT conversation, a conclusion which in our view was plainly open. Nevertheless, it is apparent from the applicant's evidence before her Honour that he understood the concepts of evidence and the necessity that it be "filed". Her Honour found that he was "more than capable of understanding court orders and process." She rejected his evidence "that he had almost no comprehension of what occurred before the Tribunal Member on 8 February 2013": primary judgment (at [21]). Thus, even if, as the applicant submits, her Honour erred in finding that he received an email from the Tribunal setting out the 8 February 2013 directions, on her Honour's finding he was present when the directions for filing evidence were made and understood them. Notwithstanding that, he failed to file any evidence.
In those circumstances we are of the view that there is no arguable case that the applicant was denied natural justice. It was open to the Tribunal Member to conclude that the applicant's non-appearance was consistent with his failure to file any evidence.
The applicant further contended that he was not afforded procedural fairness in that he was not given the opportunity to give evidence or present his case in accordance with s 35 of the CTTT Act. The applicant contended that s 35 imposed a mandatory obligation on the Tribunal to ensure that he was afforded the opportunity of doing so.
The primary judge stated (at [52]) that s 35 was found in an Act that allowed the CTTT a significant degree of flexibility and that its provisions "should not be construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness".
There was no error in her Honour's approach to s 35. The proper construction and operation of a provision has to be considered in context. The relevant context for the purposes of s 35 is that the CTTT Act and CTTT Regulation provided for notice to be given to a party to proceedings and for the matter to proceed in the absence of a party provided cl 30 has been satisfied. Given that there was no error in her Honour's finding in respect of cl 30, s 35 did not come into play.

Jurisdiction/Ultra Vires

Having regard to our conclusion in relation to s 35, the applicant's contention that the orders made by the CTTT were outside jurisdiction and thus ultra vires does not arise.

Orders

The leave application was originally listed for hearing on 12 April 2016. However, due to an error in the Court of Appeal registry, notice of the hearing date was not received by the respondent's solicitors. None of the respondent's legal representatives were available to appear on that date. Accordingly, it was adjourned for hearing. Costs were reserved.
The applicant's counsel faintly (and with a hint of irony) submitted that the respondent's solicitors should have inquired as to a hearing date, being on notice that the Registrar had advised an April date was likely. In the alternative, he accepted that the respondent's submission that each party bear their own costs of that day was the appropriate course. We agree.
We make the following orders: 1. Summons seeking leave to appeal dismissed with costs. 2. No order as to the costs of the adjourned hearing on 12 April 2016, with a view to each party bearing their own costs of that date.

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. Decision last updated: 02 May 2016

Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

Consumer, Trader and Tenancy Tribunal Regulation 2009(NSW)

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