New South Wales Court of Appeal CITATION: DOBELL v BLUE HAVEN POOLS AND SPAS PTY LTD [2009] NSWCA 77 HEARING DATE(S): 30 March 2009 JUDGMENT OF: Allsop P at 21; Basten JA at 2; Handley AJA at 24 EX TEMPORE JUDGMENT DATE: 30 March 2009 (1) Grant the Applicants leave to appeal from the judgment and orders in the Common Law Division made on 22 July 2008. (2) Treat the notice of appeal invalidly filed on 12 September 2008 as being filed pursuant to the grant of leave. DECISION: (3) Allow the appeal and set aside the orders made in the Common Law Division. (4) In lieu thereof, order that the summons in the Common Law Division be dismissed and that the plaintiff pay the costs of the first and second defendants. (5) Grant the Respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of its costs in this Court, if not disqualified by s 6(7) of that Act. CATCHWORDS: ADMINISTRATIVE LAW – procedural fairness – party's representative unable to attend Consumer, Trader and Tenancy Tribunal hearing because of illness – reasonable opportunity to be heard – no obligation to adjourn and commence search for absent party – whether failure to accord rehearing for want of jurisdiction rendered earlier decision given without hearing from one party procedurally unfair – Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 68 - WORDS AND PHRASES – "procedural fairness" LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 65, 67, 68 Supreme Court Act 1970 (NSW), s 69 CATEGORY: Principal judgment CASES CITED: Kioa v West [1985] HCA 81; 159 CLR 550 John Alan Dobell (First Appellant) PARTIES: Kellie Dobell (Second Appellant) Blue Haven Pools and Spas Pty Ltd (First Respondent) Consumer Trader and Tenancy Tribunal (Second Respondent) FILE NUMBER(S): CA 40287/08 A Girard (Appellants) COUNSEL: M Dulhunty (First Respondent) N/A (Second Respondent) Brazel Moore Lawyers (Appellants) SOLICITORS: Coyne & Whittemore Solicitors (First Respondent) IV Knight, Crown Solicitor's Office (Second Respondent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 30012/08 LOWER COURT JUDICIAL OFFICER: Harrison AsJ LOWER COURT DATE OF DECISION: 22 July 2008 LOWER COURT MEDIUM NEUTRAL CITATION: Blue Haven Pools v Dobell [2008] NSWSC 707 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40287/08 SC 30012/08 ALLSOP P BASTEN JA HANDLEY AJA 30 March 2009 DOBELL v BLUE HAVEN POOLS AND SPAS PTY LTD Judgment 1 ALLSOP P: I will ask Justice Basten to deliver the first judgment. 2 BASTEN JA: The application for leave to appeal presently before the Court arises out of the dispute between the parties with respect to the installation of a swimming pool at premises owned by the applicants. Both parties, in separate proceedings, took their dispute to the Consumer, Trader and Tenancy Tribunal ("the Tribunal"). The Respondent, Blue Haven Pools and Spas Pty Ltd ("Blue Haven") sought payment of an amount of $8,604 said to be due under the contract. The Applicants claimed repayment of $21,300, together with a release from liability for further payments under the contract of $8,004, giving a total claim of $29,304. 3 The claims were listed before the Tribunal to be heard together on 25 May 2007. On that day, the Applicants appeared, but the Respondent did not. The Tribunal dismissed Blue Haven's proceedings and ordered, in the Applicant's proceedings, Blue Haven to pay the Applicants the sum of $21,336.05. 4 On 6 June 2007 Blue Haven applied to the Chairperson to have the completed proceedings reheard, pursuant to s 68(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the Act"). There were limitations on the right of a person to have a completed proceeding reheard. In particular s 68(13) and (14) provided, prior to September 2008: "(13) A person cannot make an application under this section for a rehearing of completed proceedings if: (a) the amount claimed or disputed under the completed proceedings was more than $25,000 (or such other amount as may be prescribed by the regulations) …. (14) The regulations may exclude the making of an application for a rehearing under this section in cases of any prescribed class or description." 5 If the amount claimed or disputed was taken as the total of the respective claims, that total was in excess of $25,000. Nevertheless, a delegate of the Chairperson apparently granted the application, that decision being described as "final and not subject to review of any kind": s 68(8). 6 The matters were listed together for rehearing on 29 November 2007. However, the Tribunal as constituted for the rehearing determined that it had no jurisdiction to rehear the matters because the amount claimed or disputed was outside the limit imposed by s 68(13). 7 Whether any substantive order was made on 29 November 2007 is unclear. The next step taken by Blue Haven was to file a summons in the Common Law Division seeking to appeal against the decision and orders of the Tribunal made on 25 May 2007. Blue Haven claimed relief in the Supreme Court on the grounds that it had been denied procedural fairness by the Tribunal in making the orders on 25 May 2007. 8 An appeal may be brought from the Tribunal against a decision of the Tribunal on a question with respect to a matter of law: the Act, s 67(1). Proceedings by way of judicial review, pursuant to s 69 of the Supreme Court Act 1970 (NSW) may also be brought, but only in respect of a complaint that the Tribunal had no jurisdiction to make the order in question or that the party challenging the order had been denied procedural fairness: the Act, s 65(3). 9 The proceedings came before Harrison AsJ on 10 July 2008, her Honour handing down judgment on 22 July 2008: see Blue Haven Pools Pty Ltd v Dobell [2008] NSWSC 707. The case for Blue Haven was that it had been denied procedural fairness because its representative, who was sick on the day of the hearing (25 May 2007) had been unable to attend. 10 Her Honour rejected that complaint on the basis that Blue Haven knew of the date of the hearing, knew that its representative was incapacitated and took no steps either to seek an adjournment or to seek alternative representation. There is no challenge to what were essentially factual findings in this regard. 11 Having rejected that case, her Honour continued to consider whether there had been a denial of procedural fairness because the Tribunal, having ruled that Blue Haven was entitled to a rehearing, then declined to rehear the matters. She upheld Blue Haven's complaint and set aside the Tribunal's decision of 25 May 2007. 12 There are a number of difficulties with that conclusion. First, if the Tribunal Member were correct in his conclusion on 29 November that he had no jurisdiction to conduct a rehearing, the failure to conduct the rehearing can hardly have constituted a denial of procedural fairness. (The Member's conclusion in that respect was not challenged.) Secondly, it was not argued that the decision of the delegate of the Chairperson of the Tribunal, that Blue Haven was entitled to a rehearing, itself established a right giving rise to a denial of procedural fairness at the first hearing. 13 Accordingly, her Honour's orders were misconceived and must be set aside. 14 In this Court the respondent argued that, in accordance with the reasons of the High Court in Kioa v West [1985] HCA 81; 159 CLR 550, because the respondent did not obtain a hearing of its case on the merits there had therefore been a denial of procedural fairness. With respect, that is not a correct summary of the legal requirement. The legal requirement is that the company be afforded a reasonable opportunity to be heard. 15 It was that issue to which her Honour directed her consideration prior to the final paragraphs of her decision. She came to the view that such a reasonable opportunity had been accorded and that is the issue which is not presently under challenge. 16 It is unfortunate that in a number of cases which come to this Court from the Tribunal difficulties have arisen because of inappropriate procedural steps being taken or rulings made. However, in the present case that did not give rise to any self-evident injustice. In the Common Law Division, the representative of Blue Haven filed an affidavit dated 29 April 2008 which referred to what had happened, according to the deponent's view, at the rehearing, in the following terms: "(i) The member of the Tribunal Mr Connolly who dealt with the re-Hearing advised that he was unable to hear the applications as he was without jurisdiction because the subject of the application for re-Hearing exceeded $25,000 in aggregate and the application should have been made to this Honourable Court and not the Tribunal. (ii) Mr Connolly was prepared to re-hear the Dobell application if Blue Haven withdrew its application. (iii) After discussions between the parties' [sic] solicitors it was agreed that notwithstanding the Member's position, Blue Haven would make an application to the Supreme Court for re-Hearing. (iv) That application was made to the Supreme Court within the periods agreed. (v) Dobell's [sic] solicitors filed an Appearance and Defence but at no stage applied for a Dismissal of the Supreme Court application. (vi) Had the parties not agreed to the application to the Supreme Court Blue Haven could have accepted the offer of Mr Connolly to withdraw its application and proceed on a re-Hearing of the Dobell application only." 17 Blue Haven made the foreshadowed application to the Supreme Court on an available ground, namely denial of procedural fairness in respect of the orders and decision of the Tribunal on 25 May 2007. Findings were made relevant to that application pursuant to which it should have been dismissed. In short, Blue Haven has not been denied the opportunity for a hearing in the Tribunal, nor for the only relief available to it in respect of an adverse outcome of that hearing, namely an opportunity to seek relief in this Court. 18 Two further matters should be noted. First, one of the orders made in respect of costs by Harrison AsJ on 22 July 2008 was to require that Blue Haven pay the costs "thrown away on 25 May 2007, 5 July 2007 and 29 November 2007". If that order is set aside, those costs being costs in the Tribunal, such orders as had been made by the Tribunal in respect of those costs will stand. 19 Secondly, the plaintiff joined the Tribunal to the "appeal" filed in the Common Law Division. Although it is appropriate and necessary to join the decision-maker in proceedings seeking judicial review, it is neither necessary nor appropriate to join the decision-maker to an appeal, absent statutory provision to the contrary. For the same reason, the applicants were in error in joining the Tribunal to the proceedings in this Court. However, the Tribunal has (properly) not appeared and has not sought costs. For that reason, no order is proposed with respect to the costs of the Tribunal. 20 Although the amount in dispute is well below the limit of this Court with respect to matters enjoying a right of appeal (namely $100,000) the decision in the Common Law Division was manifestly erroneous and, in the interests of maintaining the regularity of the administration of justice, leave should be granted and the orders made in the Common Law Division set aside. The orders of this Court should be: (1) Grant the Applicants leave to appeal from the judgment and orders in the Common Law Division made on 22 July 2008. (2) Treat the notice of appeal invalidly filed on 12 September 2008 as being filed pursuant to the grant of leave. (3) Allow the appeal and set aside the orders made in the Common Law Division. (4) In lieu thereof, order that the summons in the Common Law Division be dismissed and that the plaintiff pay the costs of the first and second defendants. (5) Grant the Respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of its costs in this Court, if not disqualified by s 6(7) of that Act. 21 ALLSOP P: I agree, I would only add the following. 22 Some aspects of the submissions made this afternoon by Ms Dulhunty apparently sought to attack the decision of the primary judge in relation to her clear conclusion that there had been no denial of procedural fairness in the first decision. This attack was based on an asserted legal obligation to ascertain the whereabouts of an absent party otherwise regularly informed of the date and place of the hearing. The question as to the fairness of the process was fully litigated before the primary judge. There is no principled basis to conclude that her Honour was in error in refusing to conclude that there had been lack of procedural fairness in the first decision because of any such asserted rule. The circumstances described in paras 32 and 33 of her Honour's judgment meant that the Tribunal was not legally obliged to adjourn and commence a search either for the absent party or for an explanation of the absent party. 23 With those additional comments I would agree with the proposed orders and with Justice Basten's reasons. 24 HANDLEY AJA: I agree with both of the judgments that have been delivered. 25 ALLSOP P: The orders of the Court are as proposed by Justice Basten. ********** 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.