Von Reisner v CTTT

LEGISLATION CITED : Consumer, Trader and Tenancy Tribunal Act 2001

Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456 CASES CITED : Italiano v Carbone [2005] NSWCA 177 Kalokerinos & Anor v HIA Insurance Services Pty Ltd & Anor [2004] NSWCA 312 Maconachie v Kullenburg & Ors [2005] NSWCA 294

TEXTS CITED : The Macquarie Dictionary, 4th ed (rev) (2005) The Oxford Dictionary, 8th ed (2004)

Koidu Von Resiner (Plaintiff) PARTIES : Consumer, Trader & Tenancy Tribunal (Second defendant) NSW Land and Housing Corporation (Third defendant)

COUNSEL : Plaintiff in person A Jungwirth (Second & Third Defendants)

Plaintiff in person SOLICITORS : IV Knight, Crown Solicitor (Second defendant) McCabe Terrill (Third defendant)

LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT JUDICIAL OFFICER : Tribunal Member Connolly

LOWER COURT DATE OF DECISION : 5 December 2005

LOWER COURT MEDIUM NEUTRAL CITATION : Reisner v NSW Land and Housing Corporation [2005] NSWCTTT 820

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

JUDGMENT (Appeal decision of CTTT -preliminary conference: whether Tribunal Member should not conduct hearing) 1 HER HONOUR: By summons filed 3 April 2006, the plaintiff seeks firstly, an order that the decision made by the Consumer, Trader and Tenancy Tribunal on 5 December 2005 be set aside; and secondly, "The orders of the Tribunal that changed Supreme Court Rules for the time for an appeal from 28 days to a lesser of 14 days to declare as VOID and outside the Tribunal's jurisdiction". 2 The plaintiff is Koidu Von Reisner. The second defendant is the Consumer, Trader and Tenancy Tribunal (CTTT). The third defendant is the NSW Land and Housing Corporation (Housing Corp). The plaintiff relied on her affidavits sworn 18 April 2006, 9 June 2006 and 27 March 2008. Ms Von Reisner was self represented. It was on the first day of this hearing that the appeal grounds became clearer. 3 In submissions on the first day of the hearing, Ms Von Reisner asserted that the Tribunal Member had conducted preliminary conference in these proceedings. The hearing of this appeal was adjourned to give the parties an opportunity to put on evidence on this issue. Ms Von Reisner has filed a further affidavit dated 28 April 2008. The Housing Corp relied on an affidavit of Robert Weeks sworn 1 May 2008. Mr Weeks was the advocate for the Housing Corp who appeared at the Tribunal on 26 July 2005. 4 On 24 April 2008 this Court wrote to the CTTT requesting the CTTT file for this hearing on 5 May 2008. The CTTT file was not available. However, Ms Von Reisner has photographed some of the Tribunal file and these photographs have been tendered (Exs C to E).

The relevant statutory provisions 5 Section 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 provides: "(1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of: (a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or

(c) an injunction, in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter." 6 Section 65(3) however provides: "(3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that:

(a) the Tribunal 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." 7 Prerogative relief under s 65(3) of the Consumer Trader and Tenancy Tribunal Act is discretionary and may be refused where there has been delay on the part of the applicant or it can be said that the applicant has waived or acquiesced in the validity of the decision (Italiano v Carbone [2005] NSWCA 177 per Basten JA at [117]; Maconachie v Kullenburg & Ors [2005] NSWCA 294 per McColl JA (Giles JA agreeing) at [59]). 8 Section 67 of the Consumer Trader and Tenancy Tribunal Act allows for an appeal to be made to this court on a question with respect to a matter of law. A reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal (s 67(8)). The onus lies on the plaintiff to demonstrate that there has been an error with respect to a matter of law. 9 Section 67(3) of the Consumer Trader and Tenancy Tribunal Act provides that, after deciding the question of the subject of an appeal, the court may affirm the decision of the Tribunal, or it may make an order in relation to the proceedings in which the question arose as it, in its opinion, should have been made by the Tribunal, or it may remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal. 10 The width of s 67 was discussed in Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456. Hodgson JA (with whom Beazley and Tobias JJA agreed) stated succinctly [at para 33]: "… in my opinion, to establish an error of law by the Senior Member, it was necessary to show that he applied a wrong principle of law. That could be shown either from what he said, or because the ultimate result, associated with the facts that he expressly or impliedly found, indicates that he must have applied the wrong principle of law". 11 See also Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312 at paragraphs [39], [40], [41], [47] and [59].

Grounds of appeal 12 The plaintiff appeals the decision of the CTTT made on 5 December 2005 on the following grounds: "1. Pursuant to CTTT Regulations of 2002 Section 44: Objection to participation of member following preliminary conference. 2. Pursuant to Section 55(3)(b): Preliminary conferences. 3. Failure to provide any records in relation to the hearings held in the matter." 13 The issue is a short one. Ms Von Reisner submitted that Tribunal Member Connolly conducted preliminary conference on 26 July 2005 in these proceedings and pursuant to s 55(3)(b) he was not entitled to preside over the hearing which took place on 5 December 2005. 14 On 28 June 2005 Ms Von Reisner filed an application against the Housing Corp in the Tribunal seeking various order including repairs and compensation (File No RT 05/33086). 15 On 22 September 2005 Ms Von Reisner filed an amended application in 33086/05. The application was listed before the Tribunal at 9.15 am on 26 July 2005 (Ex B). While the notice of hearing refers to the application being listed it does not specifically refer to any preliminary conference being held on that day. 16 Section 54 of the Consumer Trader and Tenancy Act reads: "54 Tribunal to promote conciliation

(1) Before making an order to determine any matter that is the subject of proceedings, it is the duty of the Tribunal to use its best endeavours to bring the parties in the proceedings to a settlement that is acceptable to all the parties." 17 It is common ground that on 26 July 2005 there was no conciliation process conducted by the Tribunal.

Tribunal Member's Decision 18 On 5 December 2005 the Tribunal Member in his written reasons stated: "8. Having been party to the mediation between Ms Reisner and the Landlord Corporation in 2001, which revealed to me confidential aspects of each party's case, was a further reason for my disqualification. Ms Reisner further stated that on this basis, the Tribunal Regulations precluded my further involvement in any matter involving her and the Landlord Corporation.

The Landlord Corporation did not have any objection to my continuing in the matter. Mr Weeks submitted the 2001 matter was in respect of mould, dampness and glue on the floor, matters quite distinct to those presently before the Tribunal.

I told the parties that I had very limited recollection of the 2001 mediation as I had dealt with several thousand matters since that date. Further my understanding of the Tribunal procedure was that a Member involved in conciliation was not precluded from hearing a matter i.e the matter conciliated. This would hardly then result in a 2001 mediation/conciliation disallowing my continued involvement in a matter in 2005. (I refer to the note inserted at the end of clause 44 of the Consumer, Trader & Tenancy Regulations 2002, by the C onsumer, Trader & Tenancy Tribunal Amendment (Miscellaneous) Regulation 2005 (GG. No 132 of 26 October 2005, P8951).)

I note the application lodged on 28 June 2005, amended before me on 26 July 2005, further amended on 20 September 2005 and purportedly further amended on 28 November 2005 (copies of which are attached for ease reference) does not appear to relate to mould, dampness and/or the removal of glue.

In all the circumstances I did not believe I would fall foul of the test propounded in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 492. I was satisfied a fair-minded lay observer would not reasonably apprehend that I would not bring an impartial and unprejudiced mind to the resolution of the matters contained in 05/33086.

I dismiss the application that I disqualify myself on the basis of bias actual or apprehended.

A short adjournment was taken to allow Ms Reisner to consider her position. On resumption Ms Reisner indicated she would take the matter on appeal to the Supreme Court of NSW. The proceedings were stayed to allow the appeal to be made. Procedural orders were made as to the future conduct of the matter." 19 It appears that the submissions made to the Tribunal Member were based on the earlier proceedings (the 2001 proceedings) between Ms Von Reisner and the Housing Corp, although reference was had to regulation 44 of the Consumer, Trader & Tenancy Regulation 2002.

The relevant statutory provisions 20 Section 55 of the Consumer Trader and Tenancy Act reads: "55 Preliminary conferences

(1) In addition to or in the course of any action taken under section 54, the Tribunal may, before commencing to hear and determine an application, confer with, or arrange for a member or the Registrar to confer with, the parties in the proceedings and make any determination with respect to the proceedings that is agreed to by the parties.

(2) If proceedings are referred under this section to a member or the Registrar and the parties agree to the determination of the member or the Registrar, the determination has effect as a decision of the Tribunal.

(3) If the proceedings are not determined under this section and the matter proceeds to a hearing: (a) evidence is not to be given, and statements are not to be made, concerning any words spoken or acts done at a conference held in accordance with this section unless the parties otherwise agree, and

(b) any member who presided over a preliminary conference in respect of the proceedings is not entitled to be a member of the Tribunal determining the proceedings if any party in the preliminary conference objects, in the manner and form prescribed by the regulations, to the member's participation in the proceedings. (4) The Chairperson may direct that a preliminary conference is to be held under this section in the case of any applications made to the Tribunal of a kind specified in the direction." 21 Regulation 44 of the Consumer Trader and Tenancy Regulation provides:

"44 Objection to participation of member following preliminary conference An objection under section 55 (3) (b) of the Act may be made in writing addressed to the Registrar and lodged with the Tribunal within 14 days after the matter concerned is listed for hearing or, if the matter is listed for hearing within the 14-day period, may be made by oral submission at the commencement of the hearing of the matter concerned. Note. Section 55 (3) (b) of the Act provides that if proceedings are not determined under section 55 (Preliminary conferences) any member who presided over a preliminary conference in respect of the proceedings is not entitled to be a member of the Tribunal determining the proceedings if any party in the preliminary conference objects. Nothing in the Act or this Regulation prevents a member who was involved in attempting to bring the parties in proceedings to a settlement under section 54 (Tribunal to promote conciliation) of the Act from being a member of the Tribunal that later determines the proceedings." 22 By letter dated 5 December 2005 Ms Von Reisner indicated to the Tribunal Member that she requested Tribunal Member Connolly disqualify himself from hearing the matter on the basis that he "has been involved in the case previous, numerous mediation hearings and are in possession of privileged and confidential information regarding the case and the parties. As the Mediator and person with the previous knowledge and interest in the case your present involvement is legally inappropriate, and is in breach of, in addition, of Legal Profession Act for numerous reasons." 23 I accept that Ms Von Reisner did object to the Tribunal Member's participation in writing as required in regulation 44. However, the letter of objection does not specifically raise that Ms Von Reisner considered that the Tribunal Member had presided over a preliminary conference on 26 July 2005 in those proceedings, and therefore should not participate in the hearing pursuant to s 55(3)(b). Section 55(3)(b) says that any member who presided over a preliminary conference in respect of the proceedings is not entitled to be a member of the Tribunal determining the proceedings if any party in the preliminary conference objects. 24 Ms Von Reisner says that Tribunal Member Connolly conducted a preliminary conference in these proceedings on 26 July 2005. Mr Weeks, an advocate, appeared for the Housing Corp. He deposes that the matter came before Tribunal Member Connolly who heard submissions from both parties concerning the future conduct of the application. Mr Weeks recalls that Ms Von Reisner filed a motion that day and as a result of submissions and the motion, the Member made procedural directions. Mr Weeks does not specifically address the time period in which this occurred, although there is a notice of hearing, which appointed the time of 9.15 am. It is common ground between the parties that there were procedural directions made by Tribunal Member Connolly. 25 Ms Von Reisner in her oral submission stated that at 9.15 am her matter was listed with a number of matters in Room 2. All the parties were present in Room 2. She does not have a firm recollection as to whether Mr Weeks was present or not. She says that all the matters listed in Room 2 related to rent rises by the Housing Corp, although her application does not seem to involve a rent rise. According to Ms Von Reisner, as a result of a callover of the matter by Tribunal Member Connolly in Room 2 some matters were withdrawn. Those that were to proceed were referred to other rooms where there were other Tribunal Members present to conduct the directions hearings. Tribunal Member Connolly conducted the directions and dealt with Ms Von Reisner's application in these proceedings later in the morning.

26 By letter dated 27 July 2005 the Tribunal wrote to Ms Von Reisner advising that on 26 July 2007 the hearing was adjourned to a date to be fixed by the Registrar and that the following procedural directions were made: "1. The applicant shall provide to the respondent and the Registrar a copy of all documents on which the applicant intends to rely at the hearing by 15/8/05. The respondent shall provide to the applicant and the Registrar copy of all documents on which the respondent intends to rely at the hearing by 5/9/05. NOTE 1. The Tribunal notes that the amendment to the application in respect of compensation and the supporting allegations in prayers 1 and 2 of the notice of motion filed by the applicant on 26/7/05. NOTE 2. Prayer 3 is dismissed for the reasons given at the hearing. NOTE 3. The Tribunal refused to make the orders contained on the short minutes of the orders and interim orders for the reasons given at the hearing. The Tribunal is satisfied in this matter can best be dealt with fairly expeditiously and sufficient formality though compliance with the orders made and Tribunal be set today. Order - By consent 1. The landlord is granted access to the premises on 1 August 05, during the period 9:00AM to 11:00AM for the purpose of inspecting the premises in respect of the four matter raised in this application. The access will be given to up to four (4) people being: i) Team Leader Department of Housing & Technical Officer Department of Housing and; ii) Independent Contractors. NOTE 4. Access to carry out any repairs that may be necessary pending the inspection on 1 August 05 is to [be] arranged between the parties. A separate written notice of the new hearing date will be sent to you in the near future." 27 There is a handwritten adjudication sheet prepared on 26 July 2005 (Ex E p 3), which accords with the contents of the letter reproduced above. 28 On 12 August 2005 the Tribunal Wrote to Ms Von Reisner as follows: "I refer to your correspondence dated 9 August 2005 and 12 August 2005. The Tribunal at the hearing of this matter on 26 July 2005 directed that the next hearing would be a formal hearing. The Tribunal determines its own procedures. This matter will not be listed for an interlocutory hearing. Procedural directions were made on 26 July 2005 as well as consent orders. The Tribunal has not decided this matter, and therefore is unable to supply a statement of reasons. …"

What is a preliminary conference? 29 There is no definition of a "preliminary conference" in the Act. However, a preliminary conference is in addition to conciliation. Conciliation is a process where the Tribunal uses its best endeavours to bring the parties in the proceedings to a settlement - s 55(1). The Chairperson may direct a preliminary conference in the case of any application made to the Tribunal - s 55(4). 30 Black's Law Dictionary 8th ed, 2004 defines "preliminary" as "Introductory; initiatory; preceding; temporary and provisional; as preliminary examination, injunction, articles of peace, etc." and "conference" as "A meeting of several persons for deliberation, for the interchange of opinion, or for the removal of differences or disputes." 31 The Macquarie Dictionary, 4th ed (rev) (2005) defines "preliminary" as "preceding and leading up to the main matter or business; introductory; preparatory; something preliminary; introductory or preparatory step" and "conference" as "a meeting for consultation or discussion; the act of conferring or consulting together; consultation, especially on an important or serious matter." 32 The Oxford Dictionary, 8th ed (2004) defines "preliminary" as "introductory or preparatory; (in pl.) preparatory measures or arrangements" and "conference" as "the action of bringing together; collection; addition, adding up; to confer". 33 If the evidence of Ms Von Reisner is accepted, the meeting at 9.15 am may have constituted a preliminary conference. It was the first scheduled meeting where come discussion took place between a Tribunal Member and the parties. However, in her submissions before the Tribunal Member, Ms Von Reisner did not articulate her objection to the Tribunal Member was on the basis that he had conducted a preliminary conference on 26 July 2005 in these proceedings. The submissions made then were rather more wide ranging and referred to earlier proceedings but reference was had to regulation 44. It was only at the conclusion of the hearing of this appeal that it became clear that Ms Von Reisner was saying that there were two conferences held on 26 July 2005 and the earlier one, the one held at 9.15 am, was a preliminary conference. 34 In my view, the earlier conference conducted by Tribunal Member Connolly on 26 July 2005 would have been a preliminary conference. As Ms Von Reisner had objected to the Tribunal Member presiding over the hearing on 5 December 2005, he was not entitled to conduct that hearing. The matter is remitted to the CTTT to be determined according to law. The decision of Tribunal Member Connolly dated 5 December 2005 is set aside. 35 Costs are reserved.

(1) The matter is remitted to the CTTT to be determined according to law.

(2) The decision of Tribunal Member Connolly dated 5 December 2005 is set aside.

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.