New South Wales Supreme Court CITATION : Lewis & Anor v Registrar Consumer Claims Tribunal & Anor. [1999] NSWSC 381 revised - 27/04/99 CURRENT JURISDICTION : Administrative Law Division FILE NUMBER(S) : 30066/98 HEARING DATE(S) : 21 April 1999 JUDGMENT DATE : 27 April 1999 PARTIES : Michael and Maree Lewis v Registrar Consumer Claims Tribunal and Ideal Roofing Pty Ltd JUDGMENT OF : Bell J at 1 LOWER COURT JURISDICTION : Consumer Claims Tribunal LOWER COURT FILE NUMBER(S) : BHU97/8 LOWER COURT JUDICIAL OFFICER : COUNSEL : Mr. C.R. Newlinds (Second Defendant) SOLICITORS : Mrs Maree Lewis (First Plaintiff) appeared for Plaintiffs Ellis & Baxter (Second Defendant) CATCHWORDS : Consumer Claims Tribunals Act 1987; Denial of natural justice ACTS CITED : Consumer Claims Tribunals Act 1987 Archcom Pty Ltd and Consumer Claims Tribunal and Ors (unreported 29 September 1995) Carpet Fashion Pty Ltd v Consumer Claims Tribunal (unreported NSWSC Ireland J 20 October 1992 CASES CITED : Ciciwill Pty Ltd v Consumer Claims Tribunal & Ors (1997) 41 NSWLR 737 Maxwell-Smith v Consumer Claims Tribunal & Anor (unreported NSWSC Greg James J) 8 December 1998 Hutley v Meigan & Ors. (unreported 19 December 1996) Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 DECISION : See para. 40 16 IN THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION BELL J Tuesday, 27 April 1999 30066/98 - LEWIS & ANOR. v REGISTRAR CONSUMER CLAIMS TRIBUNAL & ANOR. JUDGMENT 1 HER HONOUR: In these proceedings the plaintiffs, Michael and Maree Lewis, seek an order setting aside a determination made by a referee in the Consumer Claims Tribunal in proceedings commenced against them by Ideal Roofing Pty Ltd, the second defendant. A declaration is sought that the plaintiffs were denied natural justice in the proceedings before the Tribunal. 2 The plaintiffs appeared in person in the proceedings before me. Maree Lewis is admitted to practice as a solicitor and she conducted the proceedings on behalf of herself and her husband. 3 In April 1996 the Lewises were renovating their home at 12 Westringia Place, Gymea Bay. They obtained a quote from Ideal Roofing Pty Ltd for the installation of a new roof at those premises. The quote obtained from Ideal Roofing was for the supply and installation of a "0.60 Colorbond custom orb sheeting curved to radius" roof. On or about 29th April 1996 the plaintiffs accepted the defendant's quotation. Thereafter it appears that work commenced on the installation of the roof. That work was attended by delays. The reason for those delays is a matter of controversy as between the parties. Ultimately, and prior to the completion of the roof, the plaintiffs purported to terminate the contract. At the time this was done the roof as installed comprised a corrugated G300 0.60 thickness roof supplied by Stramit Industries. 4 It appears that proceedings were first commenced before the Consumer Claims Tribunal by the plaintiffs seeking an order relieving them from having to pay the second defendant the sum of $15,980 being the price upon which they had agreed for the installation of the roof. Subsequently the plaintiffs withdrew those proceedings. Thereafter the second defendant commenced proceedings before the Tribunal seeking to recover monies due to it in respect to the supply and installation of the roof. The claim was brought under Part 3A of the Consumer Claims Tribunals Act 1987 which makes provision for building claims including claims for the supply of building goods or services. 5 Central to the issues before the referee in the subject proceedings was the contention that the plaintiffs had contracted for the installation of a roof made of BHP's custom blue orb factory curved sheeting. The roof as installed, namely the G300 corrugated 0.60 sheets, was not factory curved but rather sprung curved on site. The plaintiffs considered that the BHP product was superior to that produced by Stramit Industries. The original quote was for "0.60 Colorbond custom orb sheeting curved to radius". The plaintiffs sought to establish that this was clearly a reference to sheeting wholly produced by BHP. They led evidence before the referee to establish that "custom orb" is a BHP trademark. The second defendant led evidence from two witnesses to the effect that "custom orb" is a generic term used with reference to curved Colorbond roofs. The roof as installed comprised steel manufactured by BHP but corrugated by Stramit Industries. A complicating factor was that the description in the quote did not accurately fit the BHP product in that BHP 0.60 factory curved sheets are correctly described as "custom blue orb". BHP's "Custom orb" does not come in thickness 0.60. 6 The proceedings appear to have occupied hearing time before the referee at the Consumer Claims Tribunal on a number of occasions. Oral evidence was given and a number of expert reports were tendered. The referee invited the parties to present written submissions. In the light of the fact that Mrs Lewis is legally qualified the referee allowed the second defendant to be represented. He reserved his decision. He had before him both the second defendant's claim together with what was described as a cross-claim by the plaintiffs. This is annexure "T" to the affidavit of Maree Lewis sworn on 25th June 1998. In this cross-claim the plaintiffs sought an order for payment in an amount of $18,500 being the costs of removing the sprung curved Stramit roof and replacing it with a BHP custom blue orb factory curved roof together with some associated costs. 7 On 1st June 1998 the referee's determination was handed down. He found that "custom orb" although a BHP trademark is a generic term used to describe curved Colorbond roofs. He accepted the Lewis' evidence that they had wanted only the BHP product and that, had they been aware the sheeting was corrugated by another company, they would have had nothing to do with it. However, he rejected any attempt to distinguish the BHP and Stramit products in terms of quality. He found the product used on the plaintiffs' roof to be at least equal to BHP "custom blue orb" sheeting. He rejected the plaintiffs' cross claim. The second defendant had conceded that the plaintiffs were entitled to credit for certain work not done leaving its claim as one for the payment of $12,425. The referee allowed the second defendant's claim in the amount of $11,000. He discounted the total sum claimed to reflect the circumstance that the second defendant should have been more careful in its tender and ought to have put the plaintiffs on notice of its intention to use a non-BHP corrugated product. 8 As to the scheme of the Act generally, I note the observations of Simpson J in Archcom Pty Ltd and Consumer Claims Tribunal and Ors (unreported, 29th September 1995): "At the outset it is worth recalling that the Act 'has set up a system for the speedy and inex"pensive disposal of certain claims, limited in amount, arising out of contracts for the supply of goods or the provision of services by a person carrying on (or holding himself out as carrying on) the business of supplying such goods or providing such services'. (Singer v Statutory Officers Remuneration Tribunal (1985) 5 NSWLR 633 per Hunt J). Those remarks were made in the context of the predecessor of the Act, a 1974 Act by the same title, but they apply equally to the Act. Underpinning the Act is a policy of providing expeditious access to an inexpensive and informal process for the resolution of consumer disputes involving relatively small amounts of money." 9 Section 34 of the Consumer Claims Tribunals Act 1987 provides that an order of a tribunal is final and binding on all parties to a consumer claim that is heard and determined by it and no appeal lies in respect of its orders. Section 12 of the Act immunises the Tribunal from judicial review save for matters caught by sub-section (2). That subsection is as follows: "(2) A court is not precluded from granting relief or a remedy of a kind referred to in sub-section (1) if, in respect of a consumer claim: (a) a Tribunal has given a ruling under Section 26 or refused or failed to give such a ruling after the jurisdiction of the Tribunal to hear and determine the claim has been disputed by a party to the claim and the ground on which the relief or remedy is sought is that: (i) the ruling was erroneous, or (ii) the Tribunal erred in refusing or failing to give the ruling after its jurisdiction was disputed, or (b) a Tribunal has made an order under Section 30 and the ground on which the relief or remedy is sought is that: (i) the Tribunal had no jurisdiction to make the order, or (ii) in relation to the hearing or determination of the claim, a party to the claim had been denied natural justice." 10 The plaintiffs' claim is of a denial of natural justice within the meaning of s.12(2)(b)(ii). 11 Mrs Lewis referred me to a number of decisions of this Court touching on the scope of the concept of a denial of natural justice for the purpose of this provision. In particular my attention was drawn to Carpet Fashion Pty Ltd v Consumer Claims Tribunal (unreported, NSWSC Ireland J, 20th October 1992), Archcom referred to above, Ciciwill Pty Ltd v Consumer Claims Tribunal & Ors (1997) 41 NSWLR 737, Maxwell-Smith v Consumer Claims Tribunal & Anor (unreported, NSWSC Greg James J, 8th December 1998). 12 It was the plaintiffs' contention that a denial of natural justice may be made out by demonstrating that the Tribunal had no logically probative material before it on which to base its findings. In this respect reliance was placed on a passage in Introduction to Australian Administrative Law, Dr M Allars Butterworths (1990) at p.236 where it is suggested that there are three principles which comprise procedural fairness; the hearing rule, the bias rule and the no evidence rule. The latter Dr Allars observes is of comparatively recent development. This principle requires that a decision be based on logically probative evidence. 13 Ireland J in Carpet Fashion accepted that the requirements of natural justice for the purpose of s.12(2)(b)(ii) of the Act do demand that a referee base his decision on logically probative evidence. 14 Simpson J in Archcom referred to this proposition at pp.27-28 but did not find it necessary to express a view on whether the "no evidence" rule was a component of natural justice for the purpose of the subsection. In that case it was sufficient for her Honour to observe that even accepting that the rules of natural justice did impose such a requirement there was evidence before the referee which was logically probative on the question. 15 The decision in Ciciwill turned on the failure of the referee to give reasons that complied with the requirements of s.34A of the Act. In that case Hulme J expressed his general agreement with the view expressed by Simpson J in Archcom in rejecting the proposition that the obligation to give reasons is an incident of the obligation to accord natural justice. His Honour went on to note that the Act imposes an obligation to give reasons in s.34A. In that case the referee's reasons did not deal "with the substantial issues raised by the unsuccessful party". His Honour concluded that the obligation imposed by s.34A of the Act will, at least normally, extend to reasons why, in the face of significant evidence to the contrary, a claimant should be believed (p.752). 16 In Maxwell-Smith, Greg James J observed that the referee in that case had complied with what his Honour described as the test in Ciciwill. It should be noted that his Honour explicitly refrained from deciding whether a breach of natural justice might be founded on the lack of adequate reasons; p.11. 17 Mr Newlinds who appeared for the second defendant submitted that the so-called "no evidence" rule was not a component of natural justice for the purpose of s.12(2)(b)(ii) of the Act. For a tribunal to arrive at a finding on the basis of material that was not logically probative may amount to an error of law but would not be a denial of natural justice. 18 The issue of whether the no evidence rule is a component of natural justice is the subject of some debate (the authorities tending for and against are summarised in Judicial Review of Administrative Action, Aronson & Dyer, LBC, 1996 at pp.388-392). In the approach I take to the present matter it is not necessary to decide the issue. 19 The evidence before me on the hearing of this matter comprised an affidavit of Maree Lewis sworn on 25th June 1998 to which there were a number of annexures. Those annexures included the referee's reasons for decision, the written submissions prepared by Mrs Lewis and placed before the referee comprising 75 typewritten pages, together with various attachments to those submissions which are referred to therein. Expert reports prepared both on behalf of the plaintiffs and the second defendant were also among the annexures to Mrs Lewis' affidavit. A further affidavit sworn by Mrs Lewis on 26th October 1998 was read together with the affidavit of her husband, Michael John Lewis, sworn on 24th June 1998. A video tape recording a segment from "The Investigators" television programme relating to a complaint about a sprung curved roof was also in evidence before me. Mr Newlinds did not object to the tender of this material but indicated, in a general way, that it was his contention that none of the factual material surrounding the dispute was relevant to the issues for determination. 20 Mrs Lewis contended, firstly, that the referee had failed to consider the contents of expert reports which were in evidence before him. This she submitted in the circumstances was a denial of natural justice. Further, she submitted that the referee had failed to give reasons as he was required to do pursuant to s.34A of the Act and, in this respect, she relied on the decision in Ciciwill. Although her principal challenge was said to be on the "no evidence" point, Mrs Lewis also contended that there had been a denial of natural justice arising out of the refusal of an adjournment and because of a reasonable apprehension that the referee was biased. 21 I will deal firstly with the natural justice challenge arising out of the latter two submissions. In the initial proceedings brought by Mr and Mrs Lewis the second defendant sought to obtain an order from the Tribunal directing the Lewises to allow access to their premises for the purpose of the preparation of an expert report. Mrs Lewis was of the view that the Tribunal lacked power to make such an order. The matter had been listed for hearing on this issue alone on 13th December 1996. Prior to that day Mrs Lewis developed a severe case of whooping cough. She wrote to the Tribunal enclosing a medical certificate and asking that the proceedings be adjourned. That application was not granted. Mr Lewis attended the Tribunal on 13th December 1996 and it appears that the referee directed that he and his wife give access to the second defendant and its building expert to inspect the roof. Subsequently, by letter dated 3rd January 1997 which was annexure "L" to Mrs Lewis' affidavit, Mrs Lewis wrote to the Registrar of the Consumer Claims Tribunal. In that letter, amongst other things, she challenged the direction given by the referee as being without power. She also addressed a number of evidentiary issues going to the merits of her claim. 22 The Registrar of the Tribunal wrote to Mrs Lewis on 15th January 1997, annexure "M" to her affidavit, responding to the matters raised in her letter of 3rd January. The Registrar stated that the referee had requested that she convey to the plaintiffs a number of matters. These included an assertion that it had been inappropriate to canvass evidentiary matters in correspondence with the Tribunal and that any challenge to a ruling such as the direction concerning the building inspection should be brought in this court pursuant to s.12(2) of the Act. It appears that shortly after the receipt of this letter the original proceedings were discontinued by the plaintiffs. 23 The claim commenced before the Tribunal by the second defendant came on for hearing before the same referee. Evidence had already been given before him on the plaintiffs' earlier claim. His reasons for decision of 1st June 1998 record: "It was agreed at the outset of the hearing of the present claim that all the evidence taken in the earlier hearing before me would be evidence in these proceedings". 24 The plaintiffs conceded that this was so. 25 Before me, Mrs Lewis contended that the refusal of an adjournment in the earlier (discontinued) proceedings constituted a denial of natural justice with respect to the subject proceedings. She referred to the decision of Rolfe J in Hutley v Meigan & Ors. (unreported, 19th December 1996) in this regard. It was her submission that since the evidence in the initial proceedings had been adopted by consent in the later proceedings they, too, were infected by the original denial of natural justice. In Hutley v Meigan, Rolfe J found that a failure to grant an adequate adjournment to enable a party to consider a cross-claim of which he had not received notice prior to the second day of the hearing constituted, in the circumstances of that case, a denial of natural justice. The facts of Hutley v Meigan are very far removed from the facts in the present case. In particular, the refusal of the adjournment complained of related to proceedings which were discontinued. It is difficult to see how that refusal can ground a complaint as to denial of natural justice with respect to the subject proceedings. One way in which it was sought to do so was to contend that the refusal, when seen in conjunction with the referee's comments conveyed to Mrs Lewis in the Registrar's letter of 15th January 1997, were together such as to give rise to a reasonable apprehension of bias. 26 No application was made to the referee that he disqualify himself on the ground of apprehended bias. Mrs Lewis, as noted above, is a solicitor. She impressed me as articulate and forthright in the presentation of her case. Her failure to invite the referee to disqualify himself is in the context of the submission now advanced before me notable. I do not consider that the circumstances surrounding the adjournment, together with the letter from the Tribunal, would give rise to an apprehension in the mind of a fair minded person that the referee was biased. 27 I do not consider there is any substance to the complaint that the plaintiffs were denied natural justice arising out of either the refusal of the adjournment in the earlier proceedings or the contents of the Tribunal's letter of 15th January 1997. 28 I turn now to the submission that the referee's reasons were so inadequate as to not constitute reasons for the purposes of s.34A of the Act. This ground was advanced in conjunction with the "no evidence" challenge. Section 34A is in these terms: "(1) There is to be noted on the official record of a tribunal in respect of a consumer claim the tribunal's reasons for: (a) any ruling given by the tribunal with respect to its jurisdiction to hear and decide the claim, and (b) any order made by the tribunal in respect of the claim (other than an interim or ancillary order made under s.30). (2) The reasons are to be as brief as is reasonably practicable in the particular case". 29 In this case, as noted above, the referee took time to consider his decision. He handed down his reasons on 1st June 1998. They comprised twelve typewritten pages. After reciting some introductory matters, the referee purported to summarise both the claimant's case and the respondents' case. Thereafter he set out in some detail the thrust of the written submissions prepared by Mrs Lewis. He then dealt with the claimant's response to the allegations made by Mr and Mrs Lewis. He then summarised the evidence of Mr Austin, a building expert, who had prepared a report at the request of the second defendant. Thereafter he noted in point form the evidence said to support the second defendant's claim. Then he canvassed the law as it applied to his determination and finally he recorded his findings. 30 The attack made by Mrs Lewis is based on the circumstance that the referee did not refer, in terms, to items of evidence which were of significance in the case made by the plaintiffs. In this regard particular emphasis was placed on the following matters: * The finding that although "custom orb" is a BHP trademark, it has become a generic term in reference to curved Colorbond roofs (p.11). * The rejection of the plaintiff's submission that the second defendant knew, or ought to have known, that the roofing sheets should have been mechanically curved to radius at the factory (p.11). * The finding that, given the sheets had been delivered to the site and left there prior to installation, if the respondents had felt aggrieved they should have voiced their concerns at the time and not waited until the bulk of the work was completed and the associated observation that even if the plaintiffs' concerns as to the inadequacy of the sprung curved sheets were legitimate they would be estopped by their conduct from taking that position now (pp.11/12). 31 As to the first matter Mrs Lewis acknowledged that there had been evidence that "custom orb" is a generic term used to describe curved Colorbond roofing sheets. She submitted that the referee should have rejected this evidence since the Stramit Industries brochure about their product did not describe it as "custom orb". 32 As to the second matter Mrs Lewis submitted that the referee appeared to have ignored material tendered on the plaintiffs' behalf such as the BHP manual, expert reports from Mr Bateman, structural engineer, and Bradley Trott, architect. I note, however, that it is clear that there was expert evidence before the Tribunal tending the other way. 33 As to the third matter Mrs Lewis submitted that this overlooked evidence given before the referee to the effect that she and her husband had queried a man by the name of Benecke, who I understand was a sub-contractor retained by the second defendant, as to whether the sheets delivered to the site were "curved to radius". 34 On the most generous view of the content of natural justice for the purpose of s.12(2)(b)(ii) the matters agitated by Mrs Lewis as set out in (1) - (3) above would not found a successful challenge. It is not that there was no evidence to support the findings which were made but rather the complaint is that the referee ought to have preferred the evidence relied on by the plaintiffs. 35 In general it was Mrs Lewis' contention that the referee's failure to refer to the reports of Mr. Bateman, the structural engineer retained by the plaintiffs, and Mr Trott, the architect who prepared the specifications for the roof, and the technical material comprising BHP brochures, standards prepared by the Australian Standards Association and the Stramit brochure, were omissions of such material significance that the referee's reasons failed to meet the requirements imposed by s.34A of the Act. From this failure, in conformity with Ciciwill, it might be inferred that the referee had failed to give consideration to this important body of evidence and this constituted a denial of natural justice. 36 In paragraphs numbered 1-12 under the heading "Respondents' Contentions" the referee summarised each of the matters of substance which had been agitated before him on the Lewises behalf. In this respect it might be thought that the present case differs from Ciciwill. It was not necessary for him to refer to each expert report and item of oral evidence and record his findings with respect to it. Section 34A of the Act does not impose such a requirement nor does the common law; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. 37 The true burden of the plaintiffs' complaint seems to me to be more a submission that the referee's findings were against the weight of the evidence rather than that there was no logically probative evidence to support the findings that he made. I should perhaps note that on the material before me I do not suggest that the plaintiffs have established a credible basis for the latter conclusion. 38 I consider the circumstances of this case fit within the observations made by Greg James J in Maxwell-Smith where he said: "The case appears to me, on the material provided, to be one in which unsuccessful parties formed the view that a decision adverse to them had to be, because it was adverse to their interests, wrong, biased or in bad faith". 39 Assuming, as I am prepared to for the purpose of these proceedings, that a denial of natural justice for the purposes of s.12(2) of the Act might be made out on proof that the Tribunal had made findings when there was no logically probative evidence to support them, I do not consider that the plaintiffs have established a breach of natural justice in this case. 40 I dismiss the Summons. I order that the stay of enforcement of the judgment of the Consumer Claims Tribunal in respect of the subject proceedings granted on 15th October 1998 be set aside. ********** Last Modified: 27/04/99 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.