Ebbersten v Kanjian [2009] NSWSC 1185

Ebbersten v Kanjian [2009] NSWSC 1185

The Tribunal did not commit jurisdictional error in transferring the proceedings to the District Court because s 23(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 empowered transfer to a court with jurisdiction and the proceedings then continued as if instituted there; in any event the District Court had power to extend time under UCPR r 1.12. The tenant was not denied procedural fairness because the transfer issue was heard on 4 February 2009, when he had a reasonable opportunity to raise the s 81 jurisdiction point but did not, and the 23 February 2009 hearing was only to clarify the bond issue. The Chairperson's rehearing decision was not reviewable because s 68(8)(c) makes...

Jurisdiction
Australia
Judgment Date
05 November 2009
Procedural Posture
Judicial Review of Consumer, Trader and Tenancy Tribunal Decisions / Principal Judgment on Summons Filed 1 April 2009
Outcome
The application for judicial review fails. The summons filed 1 April 2009 is dismissed.
Legal Topics
['jurisdictional Error' 'procedural Fairness' 'transfer of Proceedings to District Court' 'certiorari' 'rehearing Applications in the Consumer, Trader and Tenancy Tribunal']
['administrative Law' 'residential Tenancies' 'judicial Review'] ['jurisdictional Error' 'procedural Fairness' 'transfer of Proceedings to District Court' 'certiorari' 'rehearing Applications in the Consumer, Trader and Tenancy Tribunal']

Case Brief

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Procedural Posture

Judicial Review of Consumer, Trader and Tenancy Tribunal Decisions / Principal Judgment on Summons Filed 1 April 2009

Legal Issues

  1. 1 ['Whether the Consumer, Trader and Tenancy Tribunal gave an erroneous ruling as to its jurisdiction by transferring proceedings to the District Court.' 'Whether the District Court had jurisdiction to hear applications relying on s 81 of the Consumer, Trader and Tenancy Tribunal Act 2001 and s 47 of the Residential Tenancies Act 1987 after transfer.' 'Whether the tenant was denied procedural fairness when the Tribunal refused an extension of time application on 23 February 2009.' "Whether the Chairperson's dismissal of the rehearing application was reviewable." 'Whether Senior Tribunal Member Paull and Chairperson Ransom were tainted by actual or apprehended bias if the proceedings were remitted.']

Ratio Decidendi

The Tribunal did not commit jurisdictional error in transferring the proceedings to the District Court because s 23(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 empowered transfer to a court with jurisdiction and the proceedings then continued as if instituted there; in any event the District Court had power to extend time under UCPR r 1.12. The tenant was not denied procedural fairness because the transfer issue was heard on 4 February 2009, when he had a reasonable opportunity to raise the s 81 jurisdiction point but did not, and the 23 February 2009 hearing was only to clarify the bond issue. The Chairperson's rehearing decision was not reviewable because s 68(8)(c) makes...

Court Disposition

The application for judicial review fails. The summons filed 1 April 2009 is dismissed.

Orders

  • ['The summons filed 1 April 2009 is dismissed.' 'Costs are reserved.']