New South Wales Supreme Court CITATION : CJM Roof Services v O'Brien & Anor [2003] NSWSC 687 HEARING DATE(S) : 9 July 2003 JUDGMENT DATE : 29 July 2003 JURISDICTION: Common Law Division Administrative Law List JUDGMENT OF : Master Malpass DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned. CATCHWORDS : Appeal - procedural fairness - requirement to give reasons - sufficiency of reasons - reasons may be discerned by implication. LEGISLATION CITED : Consumer, Trader and Tenancy Tribunal Act 2001, s 28 (3), s 35, s 49, s 65, s 68. CASES CITED : Madden v NSW Insurance Ministerial Corporation [1999] NSWSC 196. CJM Roof Services Pty Ltd (Plaintiff) PARTIES : v David O'Brien (First Defendant) Consumer, Trader & Tenancy Tribunal (Second Defendant) FILE NUMBER(S) : SC 30010 of 2003 Mr R W Tregenza (Plaintiff) COUNSEL : Mr P Singleton (First Defendant) N/A (Second Defendant) Adams & Partners Lawyers (Plaintiff) SOLICITORS : McPhee Kelshaw (First Defendant) I V Knight - Crown Solicitor - Submitting Appearance (Second Defendant) LOWER COURT Consumer, Trader and Tenancy Tribunal JURISDICTION : LOWER COURT HB 02/25910 FILE NUMBER(S) : LOWER COURT Michael Courtney, Member JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST Master Malpass Tuesday 29 July 2003 30010 of 2003 CJM Roof Services Pty Ltd v David O'Brien & Anor JUDGMENT 1 MASTER : The first defendant is the owner of a property at Orchard Hills. He entered into a contract with the plaintiff to perform roofing work on a residence on the property. Disputes arose between the parties and discussions were had. The issues were not resolved and the plaintiff did not complete the work. There was an urgent need for repair work and another contractor was engaged. 2 On 20 June 2002, the first defendant brought proceedings by way of application (Exhibit A) in the Consumer, Trader and Tenancy Tribunal (the Tribunal). He sought monetary relief (in the sum of $63,000). 3 Following the making of the application, on 2 July 2002, the Tribunal sent out documentation in standard form advising of the Building Conciliation Service and appointing a hearing date (9 August 2002). 4 As the Building Conciliation Service came to the view that it was a matter unsuitable for resolution through alternate resolution procedures, on 31 July 2002, the Tribunal sent out further documentation in standard form which advised both of that view and of the matter being referred for hearing. 5 It is not in dispute that the plaintiff received all of this documentation. 6 On 9 August 2002, the first defendant attended at the Tribunal for the purpose of the hearing. There was no appearance by the plaintiff and no explanation for its non-appearance. 7 The Tribunal proceeded to hear the application. It received evidence from the first defendant. After standing the matter down for a short period during that day (to enable the first defendant to get further quotations), the Tribunal delivered its decision. The plaintiff was ordered to pay the sum of $79,000 and the first defendant was relieved from paying a sum of $8,335.50 under the contract. The plaintiff was notified of the decision by a document dated 21 August 2002. 8 In January 2003, the plaintiff brought proceedings in this Court by way of challenge to the decision of the Tribunal. The challenge is brought both by way of appeal and review by prerogative writ. Similar arguments were advanced in respect of both avenues of challenge. 9 The challenge proceeded in a manner which could be described as unusual. Mr McCrudden (a director of the plaintiff) has sworn a number of affidavits. Two affidavits were sworn by the first defendant. These affidavits contained considerable material that could have been the subject of successful objection. The exercise of deciding what was admissible would have been both time consuming and unrewarding. By consent between the parties, they took the course of reading all of the affidavit material without objection. The parties reserved their position to make submissions as to the admissibility or weight of the tendered material. There was cross-examination of the deponents. In addition, Mr Harrison (who had been an officer at the Tribunal at relevant times) was called to give oral evidence and cross-examined. 10 This saw the hearing taking on the appearance more of a fresh hearing rather than an appeal. In dealing with the evidence, I have endeavoured to have regard only to that which should have been properly before the court. 11 The challenge by way of appeal is presently incompetent. It is well out of time. It can only be maintained if an extension of time is granted. Delay is also of relevance to the granting of any relief by way of review. 12 Largely, it is sought to explain away the delay by reason of the making of three abortive applications for rehearing. The first of such applications was made on 20 September 2002. The third of such applications was refused on 19 November 2002. 13 Why three such abortive applications were made is left unexplained. It is clear from the provisions of the Consumer, Trader and Tenancy Tribunal Act 2001 (the Act) that the rehearing provisions have no application in the present case. It is not in dispute that the plaintiff's present solicitors have been acting for it since prior to the making of the application to the Tribunal. No evidence is put forward from its solicitors to assist in the explanation for delay. 14 Following the refusal of the last application for rehearing, advice was sought from counsel. His advice was obtained during January 2003. Following the receipt of that advice, the proceedings were commenced. 15 In my view, the delay is significant and the explanation put forward falls short of being satisfactory. 16 I now turn to the merits of the challenge. Largely, the grounds have been presented as asserting denial of natural justice. There is also assertion of lack of reasons. 17 It is said that the ex parte hearing saw the plaintiff being denied a reasonable opportunity to put its case before the Tribunal (reference was made to s 35 of the Act). It is said that the Tribunal inadvertently misled the plaintiff and so brought about the non-attendance on 9 August 2002. 18 In an affidavit, Mr McCrudden deposes to confusion arising from both the documentation received from the Tribunal and conversations said to have been had with Mr Harrison. In cross-examination, he appeared to retreat to a somewhat narrower position. His oral evidence presented the contention that confusion arose not from what had been said by Mr Harrison but from the documentation sent out on 31 July 2002. It is said that because this documentation advised that the matter had now been referred for hearing, he was led to believe that he would receive a further notice of hearing and that 9 August 2002 was no longer the date for such hearing. He also deposes to knowing now that he made an error. 19 Mr Harrison has very little recollection of the conversations had with Mr McCrudden. However, he did make file notes which are in evidence (tendered by the plaintiff). The file note records in effect inter alia Mr Harrison being told by Mr McCrudden that he would be referring the matter to his solicitors and that he would then call Mr Harrison back. There is no suggestion in the evidence that Mr McCrudden ever did call back. It might be added that the notes give little support for Mr McCrudden's version of the conversation. 20 I do not accept the contention that the material from the Tribunal gives rise to the confusion complained of by the plaintiff. In my view, it is clear from the material that the matter would be before the Tribunal on 9 August 2002 and that if the plaintiff did not appear, the Tribunal may decide the matter in its absence. 21 It is not said that Mr McCrudden made further contact with the Tribunal. It was a course open to him if there was any confusion and clarification was required. His affidavit deposes to seeking to make contact with his solicitor and being informed that Mr McHarg (who was merely one solicitor in the firm) was on leave for four weeks. His evidence does not suggest that he attempted to make contact with any other solicitor in the firm (who may have been handling the mater whilst Mr McHarg was on leave) for the purposes of getting legal advice or clarification. 22 Even assuming that the non-appearance of the plaintiff was due to confusion and error, it seems to me that the plaintiff has failed to satisfy the court that it has been denied procedural fairness in relation to the hearing or determination of the matter as contemplated by s 65. 23 In my view, this is a case where it had a reasonable opportunity to be heard but failed to take advantage of that opportunity. Mr McCrudden's non-appearance was due to his own fault. If he was confused, he failed to take reasonable steps to clarify or resolve the position. 24 I consider that the first defendant and the Tribunal were unaware of the alleged confusion or error and were entitled to proceed on the basis that the plaintiff had decided not to appear or defend the proceedings. 25 It was also said that the first defendant should have endeavoured to notify the plaintiff of the fact that the proceedings had been stood down during the day. In my view, there is no substance in this contention. It is not a course usually taken in court proceedings. 26 This was a case in which neither party had applied for permission to be legally represented. The first defendant has no legal qualifications. He appeared in person. The conduct of the hearing was in the control of the Tribunal. The first defendant presented his evidence and left the conduct of the hearing and the questions of the relief to be granted in the hands of the Tribunal. The material placed before it led the Tribunal to the view that the relief granted should have been given. If the plaintiff had been present, it could have addressed these matters in the course of the hearing. It needs to be borne in mind that the hearing of the application should not be viewed as being similar to court proceedings. The Tribunal is required to act with as little formality as the circumstances of the case permit and inter alia according to the substantial merits of the case without regard to technicalities or legal forms (s 28 (3) ). In my view, what happened during the hearing does not throw up any matter which would justify a disturbing of the decision. 27 I should also add that the orders made by the Tribunal record the noting of an amended claim. The first defendant did not seek to have any amendment made. Presumably any amendment was brought about by the Tribunal on its own motion. The Act provides that amendments made without notice are to be treated as irregularities. Jurisdiction in relation to irregularities is given to the Tribunal. 28 It is claimed that no reasons were given for the making of the order that the first defendant be relieved from paying the sum of $8,335.50 (in respect of the balance of the contracted roofing works). 29 Alternative arguments were put in opposition to this contention. It was said that the Act had taken away any requirement to give reasons. In the alternative, it was said that if reasons were required, then the reasoning process had been sufficiently disclosed. 30 Section 49 of the Act deals with the matters of the giving of notice of decisions and statement of reasons for decisions. The structure of the section enables a party within 14 days of receiving notice of the decision to request the Tribunal to provide a statement of reasons for its decision. There is provision for extension of time. In this case, no extension was sought and the request was not made within the prescribed 14 days. However, voluntarily reasons for decision were provided. 31 It may be that in these circumstances, the Tribunal was not required to provide reasons. However, for present purposes, it is unnecessary to further pursue this question. I consider that, the reasoning was sufficiently disclosed. 32 The cases demonstrate that what will be sufficient will vary from case to case. In the present circumstances, a Tribunal was deciding an ex parte application. The reasoning process need not be expressly disclosed. It can sufficiently appear by implication (see inter alia Madden v NSW Insurance Ministerial Corporation [1999] NSWSC 196). 33 In my view, this is one of those cases where the reasoning process can be discerned by implication from other material appearing in the reasons. The reasons identify the evidence that was led and contain the findings made by the Tribunal. In my view, the order made can be seen to flow from that material. 34 It may be that it was intended by Parliament that the rehearing provisions would provide a remedy for cases where a party does not appear at a hearing. If that was the case unfortunately for the plaintiff, the claim fell outside the jurisdictional limitations of s 68. 35 My consideration of the grounds argued by the plaintiff has led me to the view that the challenge should fail on the question of merits. In the circumstances, it would be futile to grant any extension. 36 The plaintiff bears the onus of satisfying the court that it is entitled to the relief sought. In my view, it has failed to discharge that onus. 37 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned. ********** Last Modified: 08/05/2003 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.