Thursday, 21 November 2013

Building and Construction Law

The Consumer, Trader & Tenancy Tribunal is dead.  Long live the NSW Civil and Administrative Tribunal

The end is nigh! The Consumer, Trader & Tenancy Tribunal (CTTT) is about to be no more. As of 1 January 2014 the CTTT and 20 other NSW Tribunals will all merge into the new NSW Civil and Administrative Tribunal (or the NCAT, if you will).

So what does this mean?  Well on a practical level, nothing really.  The NCAT will now hear all former CTTT disputes in its 'Consumer and Commercial Division' - one of 5 divisions within the NCAT, the others being the Administrative & Equal Opportunity, Occupational & Regulatory, Guardianship and Victims Support divisions. Staff from the CTTT will be moved to the NCAT and all existing proceedings will be transferred across.

Now on the subject of proceedings and procedure, a recent decision of the NSW Supreme Court dealing with how proceedings were carried on in the CTTT raises some interesting matter.  It is reported as Cheung v Yang and was handed down on 19 November 2013.

Mr and Mrs Yang got Mr Cheung to convert their garage into a granny flat.  In brief, a dispute arose with the Yangs saying Mr Cheung had done a bad job and refusing to pay, and Mr Cheung demanding his money.  None of that is very important for our purposes.  What is important is what happened at the hearing.

The proceedings were listed for hearing at the CTTT on 30 and 31 July 2012.  Mr Cheung was originally represented but his solicitors withdrew on 11 July 2012.  Prior to that, and on 7 July 2012, the Yangs solicitors served 7 affidavits on Mr Cheung's solicitors, being the evidence they intended to rely on at the hearing.

So on 30 July Mr Cheung arrived at the hearing unrepresented and saying he had no idea that any of the 7 affidavits had been served.  Moreover, Mr Cheung's first language was Korean and he needed an interpreter to assist him at the hearing.  From this point on, the Member of the CTTT hearing the matter seems to have got things horribly wrong. Despite having no representation and despite the fact that Mr Cheung had little, or no, grasp of English, the Member decided to adjourn the proceedings to the next day and give Mr Cheung the opportunity to consider the affidavits.  The proceedings resumed the next day, the affidavits were used as evidence and there was no cross-examination of any witnesses.  On 15 August 2012, the CTTT published its determination, finding Mr Cheung liable and dismissing his cross-claim.

A bit harsh?  Mr Cheung thought so.  He brought proceedings in the NSW Supreme Court to quash the decision of the CTTT and for the matter to return to the CTTT for a proper hearing.  It came before Judge Harrison.

Judge Harrison first dealt with the thrust of Mr Cheung's argument, that the CTTT "had an obligation to ensure that he understood the procedural aspects of the case so that he received a fair hearing.  This was particularly so in the present case as he was unrepresented and needed the assistance of an interpreter".

His honour found, referring to the High Court decision of Kioa v West that:

"The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations... The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations...".
His Honour concluded that "One aspect of the hearing rule is that a person should have matters adverse to that person or that person's interest put to that person for comment or evidence before an adverse decision is made. A decision-maker should not make a decision having had regard to undisclosed material adverse to a party that was credible, relevant and significant to the decision to be made without first putting that material to that person... Furthermore, a decision maker should bring the critical issue or factor on which the decision is likely to, or may possibly, turn to the person's attention so that he or she might have an opportunity to deal with it."

Mr Cheung was not given this opportunity by the CTTT, hence he was denied procedural fairness.  So back to the CTTT His Honour sent them for a new hearing, but by the time they get there they will be in the NCAT.  Maybe the new tribunal will get it right.

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