Supreme Court New South Wales Medium Neutral Citation: AEA Constructions Pty Ltd v New South Wales Civil and Administrative Tribunal and Ors [2014] NSWSC 911 Hearing dates: 24 June 2014 Decision date: 09 July 2014 Jurisdiction: Common Law Before: Price J Decision: 1. Declare that the plaintiff was denied procedural fairness at the hearing before the Tribunal Member on 28 February 2014. 2. The award made by the Tribunal Member on 28 February 2014 in favour of the second and third defendants is set aside. 3. The matter is remitted to the New South Wales Civil and Administrative Tribunal for re-hearing. 4. The second and third defendants are to pay the plaintiff's costs of the appeal. 5. I grant to the second and third defendants an indemnity certificate under the Suitors' Fund Act 1951 in respect of the appeal. Catchwords: Administrative law - declaratory relief - Consumer, Trader and Tenancy Tribunal - failure to comply with directions as to expert's report - application for adjournment refused - failure to consider s 35(a) CTTT Act - declaration of denial of procedural fairness. Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth) Civil and Administrative Tribunal Act 2013 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Bloch v Bloch (1981) 180 CLR 390 House v R (1936) 55 CLR 499 Sali v SPC Ltd (1993) 116 ALR 625 Category: Principal judgment Parties: AEA Constructions Pty Ltd (Plaintiff) New South Wales Civil and Administrative Tribunal (First Defendant) Hugh McCoid (Second Defendant) Annette McCoid (Third Defendant) Representation: Mr T. Bors (Plaintiff) Mr A. Hatsatouris (Plaintiff) Mr J. Rafferty (Second and Third Defendants) File Number(s): 2014/83528-1 Judgment 1HIS HONOUR: These proceedings concern a decision of the New South Wales Civil and Administrative Tribunal (NCAT) on 28 February 2014 not to vacate a hearing for the purpose of allowing AEA Constructions Pty Ltd (the plaintiff) to obtain an expert report. It is the plaintiff's contention that this decision resulted in a denial of procedural fairness. 2The plaintiff seeks a declaration and consequential orders in the nature of certiorari pursuant to s 69 Supreme Court Act 1970 (NSW). The orders sought 3By a summons filed on 19 March 2014, the plaintiff seeks the following relief: 1. A Declaration that the Plaintiff was denied procedural fairness in relation to the Hearing held by the first Defendant on 28 February 2014. 2. An Order that the decision of the First Defendant in respect of Application No. HB 13/50646 be set aside, precluded from enforcement and/or quashed. 3. An Order that the Second Defendant and Third Defendant be precluded or prevented from enforcing the Orders of the First Defendant dated 28 February 2014. 4. That the matter be remitted to the First Defendant for Re-Hearing. 5. Costs. 4Mr Bors of counsel appeared for the plaintiff and Mr Rafferty a solicitor appeared for Hugh McCoid (the second defendant) and Annette McCoid (the third defendant). NCAT (the first defendant) submits to any orders this court might make. 5As the second and third defendants' application was commenced on 26 September 2013, the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (CTTT Act) continues to apply pursuant to sch 1 cl 7(3)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). 6Section 65 CTTT Act, relevantly, limits the jurisdiction of courts to grant relief in the nature of certiorari in respect of any matter that has been heard and determined by the Tribunal except as provided by the section. Section 65(3)(b) provides that a court is not prevented from granting relief in the nature of certiorari if the ground on which the relief is sought is that "in relation to the hearing or determination of the matter, a party has been denied procedural fairness." 7Before venturing further, it is convenient to provide a summary of the background to the proceedings. Background 8The second and third defendants are the owners of premises at Park Parade, Pagewood (the premises). The premises sustained storm damage in June 2007 and required a new roof. The plaintiff was contracted to carry out the replacement of the roof, but the second and third defendants contend that the work performed by the plaintiff was inadequate and the premises suffered extensive water penetration. 9The second defendant is a 71 year-old self-funded retiree. In his affidavit sworn 14 May 2014 he refers to issues with his health and his dependence on his daughter, Jacqui Visch. It is evident from the affidavit that the plaintiff commenced the repair work in early 2008 and was advised between June and October 2008 by the second defendant that the work failed to comply with the building code and resolve the water penetration issue. Discussions between the parties were unable to settle the dispute. 10On 26 September 2013, the second and third defendants lodged an application in the Home Building Division of the Consumer, Trader and Tenancy Tribunal (CTTT), now known as the Consumer and Commercial Division of NCAT against the plaintiff. The application sought the cost of rectification of defective workmanship at the premises. 11At a directions hearing on 5 November 2013, presiding Senior Member Smith stated that he "would normally allow 28 days" (5/11/13 T5 L17) for the plaintiff to reply to the Scott schedule and evidence provided by the second and third defendants but as they were "running into the Christmas period where there is a shut-down in the building industry" (5/11/13 T5 L18) he would allow until 28 January 2014. Mr Bors, who appeared for the plaintiff agreed that this would be sufficient time so long as their expert was allowed early access to the property for the purpose of conducting a building inspection. The second and third defendants, who were not legally represented, agreed. 12The directions made by the presiding Senior Member included the following: 1. The hearing was adjourned to a date to be fixed by the Registrar (not before 28 January 2014). 2. The [second and third defendants] provide to the [plaintiff] and to the Tribunal by 3 December 2013, a copy of all documents which included witness statements, expert reports and the Scott schedule on which the [second and third defendants] intended to rely at the hearing. 3. The [plaintiff] provide to the [second and third defendants] and to the Tribunal by 28 January 2014, a copy of all documents which included witness statements and expert reports the [plaintiff] intended to rely at the hearing, including a reply to the Scott schedule. 4. Failure by a party to provide documents in accordance with these directions may result in the party in breach of the directions being unable to rely on the documents at the hearing without leave of the Tribunal. 13It is apposite to note that the directions obliged the second and third defendants to file and serve any expert reports on which they intended to rely by 3 December 2013. The plaintiff was required to file and serve its expert reports by 28 January 2014. 14On 27 November 2013, the Tribunal fixed a hearing date of 28 February 2014 and notified the parties. 15On 3 December 2013, the second and third defendants filed their evidence with the Tribunal, which was received by the plaintiff's solicitor on 7 December 2013. 16The evidence included an Independent Expert Roofing Report dated 28 November 2013 authorised by Daniel Binnington, Senior Engineer. Mr Binnington's findings noted that "the non-conformances of the roof are widespread and extended to all elements of the roofing..." (HRM 14/5/14 p 73). 17Mr Binnington recommended a complete re-roofing of the premises. The estimated cost of the recommended remediation was $126,830 (incl GST). 18Angelo Hatsatouris, the plaintiff's solicitor had informed George Alexiou, a director of the plaintiff company, in the second week of November 2013 that he should engage a building consultant. When Mr Alexiou received the second and third defendants' evidence on or about 7 December 2013, he rang two building consultants but was told they could not inspect the premises prior to Christmas. He then rang Mr Hatsatouris telling him that he had been unable to find a building consultant prior to Christmas. Mr Hatsatouris said that he would try to arrange a building consultant to undertake the inspection. 19On 10 December 2013, Mr Hatsatouris spoke with John Hickey, a building consultant. Mr Hatsatouris had a prior arrangement with Mr Hickey and knew he was familiar with water penetration issues. Mr Hickey told him that he could not do the inspection prior to Christmas, but asked that he be contacted in the New Year when a full inspection could be arranged. 20Mr Hatsatouris closed his office on 23 December 2013 and did not return to work until 13 January 2014. Mr Hatsatouris then attempted to contact Mr Hickey on a number of occasions but was unable to speak to him until approximately 17 January 2014. 21On 24 January 2014, the second and third defendants received an email from the plaintiff's solicitor requesting that they grant access to Mr Hickey to conduct an inspection of the premises in early February. The email also informed them that the plaintiff would be making an application to NCAT to reschedule the hearing date due to a possible delay in obtaining Mr Hickey's expert report. 22On 28 January 2014, the third defendant informed the plaintiff's solicitor that access could be provided for the inspection on 5 February 2014. In an email to the plaintiff's solicitor on 30 January 2014, the third defendant advised that they did not consent to vacating the hearing date. 23On 5 February 2014, Mr Hickey inspected the premises and informed Mr Hatsatouris that he had "just finished the inspection, [but would] not be able to have a report finished by 28 February." He said that he would need until about mid-March to properly respond to Mr Binnington's report. 24On 6 February 2014, the second and third defendants received a copy of a letter which had been sent to NCAT by the plaintiff's solicitor on the same day. The letter sought to vacate the hearing date of 28 February 2014 due to difficulty obtaining an expert report in time. A directions hearing was fixed for 20 February 2014. However, as the plaintiff did not appear on that day, the application to vacate was dismissed. 25On 21 February 2014, the plaintiff's solicitor wrote to NCAT explaining that the reason for the "non-appearance before the Tribunal was not attributable to the [plaintiff] but rather to [their] office" (AH 18/3/14 p 46). The plaintiff's solicitor requested that the hearing date of 28 February 2014 be for the purpose of "a Direction as to service of its expert's report and the vacation of the hearing date" (AH 18/3/14 p 50). The application to vacate 26On 28 February 2014, Mr Bors appeared for the plaintiff and Jacqui Visch appeared for the second and third defendants. Mr Bors sought that the hearing be adjourned to allow for Mr Hickey's report to be obtained. 27He explained that the plaintiff was not in a position to proceed and that he did not have any evidence. He submitted that his clients could not be said to be dragging their feet. Presiding Senior Member Correy (the Tribunal Member) said he did not accept that. He said directions had been made for the expert report to have been filed by 28 January 2014 and noted that the plaintiff had some "seven odd weeks" (28/2/14 T5 L50) to obtain the report after Mr Binnington's report had been served. The Tribunal Member said that he would not have adjourned the matter a week ago even if the plaintiff had appeared. The Tribunal Member said (28/2/14 T6 L25-29): "[I]f you can speak to your expert, and indeed, you know, I'm prepared to hear him over the telephone. I'm not prepared to stand this matter down and waste a day of the tribunal's time, the public purse. No, I'm not prepared to do that. So I'll stand the matter down for half an hour and you can get some instructions." 28After a short adjournment, Mr Bors informed the Tribunal Member that he had spoken to Mr Hickey who told him that his report would be ready in 14 days. Mr Bors renewed his application for the hearing to be vacated and sought a direction that the plaintiff serve its evidence within 14 days. Mr Bors told the Tribunal Member that he was not in a position to proceed, he did not have evidence and had been unable to confer with his expert. He put to the Tribunal Member that the reason for the lapse of time was that his solicitor had considerable difficulty arranging someone to go and do anything prior to Christmas (28/2/14 T6 L44-50). 29The Tribunal Member observed that the plaintiff had not got its evidence and that the plaintiff had "three months to get it" (28/2/14 T7 L22). He said that the plaintiff had assumed that the matter would not proceed and that this was an assumption that should never have been made. 30The Tribunal Member noted that while the plaintiff submitted that there would only be a 14 day delay, as the Tribunal's lists were already full, the second and third defendants would not have the opportunity to have their case heard for another couple of months at a minimum. 31The Tribunal Member told Mr Bors that he could formally make an adjournment application when his instructing solicitor was present. In making his formal application, Mr Bors said (28/2/14 T10 L11-19): "Member, I'm instructed to make an application for an adjournment once again, on the basis that, given the intervening Christmas/New Year period during which my clients were obliged to retain and brief their expert, obtain and serve an expert's report, they have not been able to. In the circumstances I make the submission directly in respect to section 35 of the old Act and suggest that in the circumstances where the Tribunal are not willing to grant an adjournment then my client would have been denied a reasonable opportunity to lead evidence responsive to the evidence with which it has been served by the applicants." 32Ms Visch strongly objected to an adjournment being granted. 33In an ex tempore judgment the Tribunal Member refused the application to vacate for the following reasons: 1.The [plaintiff] has not complied with the previous direction of the Tribunal, which was made almost four months ago, to file and serve evidence upon which it relies by 28 January 2014. 2.He did not accept the [plaintiff's] submission that the Christmas shut-down period had prevented an expert report from being obtained within the relevant timeframe. 3.He did not regard the current matter pertaining to the faulty installation of a roof as complex, relative to other matters before the Tribunal, as it relates largely to a single discrete problem. 4.He did not accept that, in the circumstances, a reasonable amount of time was not afforded for the [plaintiff] to obtain evidence. 5.He was satisfied that more could have been done to prepare the matter given the time available. He recognised that the unavailability of a witness was usually a sufficient ground for an adjournment but said this was a case where the unavailability of the witness could be attributed to the fault of the party seeking the adjournment. 6.The Tribunal should not only have regard to the interests of the litigants but also take into account the effect of the adjournment, the Tribunal's resources, the competing claims of litigants in other cases awaiting a hearing, the working of the listing system and the importance of adherence to dates for the proper working of that system. 34In the course of his judgment, the Tribunal Member cited the decision of the High Court in Sali v SPC Ltd (1993) 116 ALR 625, and quoted what was said by the majority at 629: "In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties... What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources." 35The Tribunal Member also cited State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1992) 29 NSWLR 487 and quoted what was said by Gleeson CJ at [493]: "The courts of this State are overloaded with business, and their workload has, over a number of years, increased at a greater rate than any increase of the resources made available to them. The inevitable consequence has been delay. This, in turn, has brought an increasing responsibility on the part of judges to have regard, in controlling their lists and cases that come before them, to the interests of the community, and of litigants in cases awaiting hearing, and not merely to the concerns of the parties in the instant case. The days have gone when courts will automatically grant an adjournment of a case simply because both parties consent to that course, or when a decision to grant or refuse an adjournment sought by one party is made solely by reference to the question whether the other party can adequately be compensated in costs." 36The Tribunal Member noted that to assume that an adjournment would only result in a short delay was simply incorrect. He stated that based on his immediate inquiries of the listing office, the earliest possible date for a new hearing would likely be in May or June. 37After the application to vacate was refused, Mr Bors and his instructing solicitor withdrew and took no further part in the proceedings. 38The hearing then proceeded ex parte which included oral evidence from Mr Binnington. 39The Tribunal Member held that he was "satisfied that the work carried out... was not in accordance with the requirements under the Home Building Act in terms of the warranties that were required and in terms of the work being carried out in accordance with the relevant standards" (28/2/14 T36 L23). 40An award of $101,021 was made in favour of the second and third defendants. 41In written reasons for judgment, the Tribunal Member referred to the application for the adjournment and that it had been rejected for the reasons stated in his ex tempore decision. The Tribunal Member noted that: "Mr Bors did not accept the earlier offer earlier (sic) by me before finally rejecting the adjournment application, of leave for the builder to call oral evidence from his expert over the telephone if unavailable to attend in person, noting again that the builder's expert had inspected the subject premises on 5 February 2014 even though he had not yet provided his report." 42Mr Hickey's report was prepared on 13 March 2014. He considered that the second and third defendants were entitled to have the roof restored to a position where the tiles, the sarking and battens which had been laid complied with Australian Standard 2050 installation of Roof Tiles. He concluded that currently was not the case (AH 18/3/14 p 79). In Mr Hickey's opinion, the value of the works to reinstate the roof in accordance with the quotation offered by the plaintiff and the Scope of Works was $17,518.79 (incl GST)(AH 18/3/14 p 82). 43The plaintiff paid the sum of $17,518.79 to the second and third defendants by letter dated 11 April 2014. 44In an affidavit sworn 9 April 2014, Mr Hatsatouris states that payment of the full amount of the judgment would impose a significant financial burden on the plaintiff. Relevant legislation 45The background to the proceedings would be incomplete without a review of the relevant provisions of the CTTT Act. 46The objects of the CTTT Act are found in s 3: "3 Objects of Act The objects of this Act are as follows: (a) to establish a Consumer, Trader and Tenancy Tribunal to determine disputes in relation to matters over which it has jurisdiction, (b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair, (c) to enable proceedings to be determined in an informal, expeditious and inexpensive manner, (d) to ensure the quality and consistency of the Tribunal's decision-making." 47Section 28(5)(b) provides: "28 Procedure of Tribunal generally (5) The Tribunal: ... (b) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." 48Section 30 provides: "30 Proceedings causing disadvantage (1) This section applies if the Tribunal is of the opinion that a party in any proceedings is conducting the proceedings in such a way that unreasonably disadvantages another party in the proceedings by any conduct (including by failing to comply with an order or direction of the Tribunal). (2) The Tribunal may: (a) if the party causing the disadvantage is the applicant-order that the proceedings (or part of the proceedings) be dismissed or struck out, or (b) if the party causing the disadvantage is not the applicant: (i) determine the proceedings (or part of the proceedings) in favour of the applicant and make any appropriate orders, or (ii) order that the party causing the disadvantage be struck out of the proceedings (or part of the proceedings). (3) Before making any order under subsection (2) against a party, the Tribunal is to have regard to the following: (a) the extent to which the party is familiar with the procedures of the Tribunal, (b) the party's capacity to understand, and act on, a direction of the Tribunal, (c) whether the party suffers from a disability, (d) whether the party is acting deliberately in failing to comply with the Tribunal's directions." 49Section 35 is as follows: "35 Opportunity for parties to present case The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity: (a) to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise), and (b) to make submissions in relation to the issues in the proceedings." Argument 50Mr Bors submitted that the refusal of the Tribunal Member to grant an adjournment for the purposes of obtaining an expert report resulted in a denial of procedural fairness. Mr Bors argued that the Tribunal Member did not consider s 35 CTTT Act and that the authorities referred to, namely: Bloch v Bloch (1981) 180 CLR 390, Sali v SPC Pty Ltd (1993) 67 ALJR 841 and State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1992) 29 NSWLR 487 were "distinguishable on [the] facts." 51It was submitted that the Tribunal Member ought properly to have considered: 1. its obligations under s 35 CTTT Act with respect to the parties before it; 2. the reasons advanced in support of the application for the adjournment; 3. prejudice to the 'innocent' party; and 4. the effect of the refusal of an adjournment upon the party seeking it. 52Mr Bors contended that in circumstances where to the knowledge of the Tribunal Member, the second and third defendants' case was framed and advanced in reliance of Mr Binnington's expert evidence (the plaintiff had retained Mr Hickey who had inspected the premises and his report would be furnished by mid-March 2014), the plaintiff was not in a position to lead responsive evidence and the plaintiff had no relevant history of dilatory conduct, the refusal of the adjournment and the ex parte hearing had amounted to a failure to comply with s 35 and had precipitated a denial of procedural fairness to the plaintiff. 53Mr Rafferty contended that to grant the plaintiff's application would be inconsistent with the objects of the CTTT Act. 54The obligation under s 35 was said only to extend to providing to the plaintiff a reasonable opportunity to present its case, not to ensuring that the parties take the best advantage of the opportunity. Mr Rafferty referred to the directions made on 5 November 2013 that granted the plaintiff a period of 12 weeks to prepare and submit its evidence to the Tribunal by 28 January 2014 which the plaintiff failed to comply with. Mr Rafferty pointed out that the plaintiff did not appear on 20 February 2014 when the matter was listed and the application to vacate the hearing date was dismissed. 55Mr Rafferty stated that the plaintiff did not attend the final hearing but was represented by counsel who applied to vacate the hearing. Mr Rafferty reminded the court that the plaintiff was offered the opportunity by the Tribunal Member to call oral evidence from Mr Hickey over the telephone but the offer was not accepted. 56Mr Rafferty put to the court that the second and third defendants, who were not legally represented at the time, were afforded the identical opportunity to that of the plaintiff and had complied with the Tribunal's direction, notwithstanding their lack of familiarity with the Tribunal's procedures, the acquisition of expert building reports and the construction industry. Mr Rafferty argued that pursuant to s 30 CTTT Act, the Tribunal can consider the extent to which a party is familiar with the proceedings of the Tribunal and a party's capacity to understand, and act on a direction of the Tribunal. 57Mr Rafferty submitted that the Tribunal Member provided the plaintiff with opportunities to present its case in compliance with the requirements of s 35 but the plaintiff chose to forgo those opportunities. By offering the plaintiff every opportunity to call or give evidence, Mr Rafferty contended that the Tribunal Member has complied with the requirements of s 28(5)(b) CTTT Act. Consideration 58The Tribunal has discretion to grant an adjournment when it is sought. Where an adjournment is refused, an appellate court will not intervene unless it is shown that the Tribunal has not exercised the discretion judicially or where its exercise was based upon wrong principle or was plainly unjust. It is not enough that the appellate court would have granted the adjournment if the court had been in the position of the Tribunal: House v R (1936) 55 CLR 499; Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 per Kirby P at 252; Sullivan v Department of Transport (1978) 20 ALR 325 per Deane J at 342. 59The decision to grant an adjournment involves the careful balancing of different factors which include not only the competing interests of the litigants in the case, but also the effect of an adjournment on court resources and the importance to the proper working of the Tribunal's case management system of adherence to the Tribunal's directions and dates fixed for hearing. 60The objects of the CTTT Act include ensuring that the Tribunal's proceedings are efficient and effective and are determined in an informal, expeditious and inexpensive manner. 61In his ex tempore judgment the Tribunal Member expressly recognised the obligation to take into account the impact of an adjournment on the Tribunal's resources, citing what was said by the majority of the High Court in Sali v SPC Ltd and Gleeson CJ in State Pollution Control Commission v Australian Iron and Steel Pty Ltd. 62During oral address, the Tribunal Member had told Mr Bors that he was not prepared to stand the matter down and waste a day of the Tribunal's time. He observed that as the Tribunal's lists were already full, the case would not be heard for another couple of months at a minimum. 63Another matter that appears to have influenced the Tribunal Member in refusing the plaintiff's application is that he considered that this was a case where the unavailability of the witness could be attributed to the fault of the party seeking the benefit of the adjournment. He expressly cited as authority for that proposition Walker v Walker [1967] 1 WLR 327. The Tribunal Member had said earlier (T28/2/14 T11 L33-36): "Unavailability of a party or witness is usually a sufficient ground for an adjournment, unless of course that unavailability is not the fault of the party whose interests would be prejudiced by the refusal of the adjournment, or that party's solicitor." 64In my respectful opinion, Walker does not support what was said by the Tribunal Member. Walker was a case where the husband's solicitor applied for an adjournment producing a letter from the husband's employer which gave details of their arrangement for his departure to India, where the husband was at the time of the hearing. The justices declined to look at the letter, refused the application and proceeded to hear his wife's case. The English Court of Appeal, Probate, Divorce and Admiralty Division allowed the husband's appeal and ordered a rehearing. Sir Jocelyn Simon P said at [330]: "First, where the refusal of an adjournment would result in a serious injustice to the party requesting the adjournment, the adjournment should only be refused if that is the only way that justice can be done to the other party; and, secondly, that although the granting or refusal of an adjournment is a matter of discretion, if an appellate court is satisfied that the discretion has been exercised in such a way as would result in an injustice to one of the parties, such appellate court has both the power and the duty to review the exercise of the discretion." 65The finding by the Tribunal Member that the plaintiff or his solicitor was at fault in not obtaining Mr Hickey's report prior to the hearing did not in itself justify the refusal of the adjournment application. If the Tribunal Member considered that it did, he was in error. A finding of fault may however, weaken a claim for an adjournment. 66Section 35(a) CTTT Act provides that "the Tribunal must ensure that each party in any proceedings is given a reasonable opportunity to call or give evidence and otherwise present the party's case." The requirement that a party must be given a reasonable opportunity to present its case lies at the core of the Tribunal's obligation to accord procedural fairness which is further recognised in s 65(3)(b). The Tribunal's duty is to ensure that a party is given a reasonable opportunity to present its case. As was said in Italiano v Carbone & Ors [2005] NSWCA 177 by Basten JA at [88]: "An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural [un]fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment", as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]: 'A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations.'" 67 In Sullivan, when considering s 39 Administrative Appeals Tribunal Act 1975 which was in similar terms to s 35(a) Deane J observed at 343: "Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled. 68During his ex tempore judgment, the matters mentioned by the Tribunal Member included the Tribunal's resources, the Tribunal's busy lists, the competing claims of other litigants, the working of the listing system and the plaintiff's fault in not obtaining Mr Hickey's report. No reference was made by the Tribunal Member to s 35(a) which was a fundamental consideration in the decision making process. It might be that the Tribunal Member was of the view that by indicating he was prepared to hear the expert over the telephone, the plaintiff had been afforded a reasonable opportunity to present its case, but the Tribunal Member did not say so. In any event, it appears that he was not prepared to stand the matter down and waste a day of the Tribunal's time, whatever may have been the outcome of the discussions that Mr Bors had with Mr Hickey. 69Whilst I appreciate that the judgment was given ex tempore and should not be scrutinised over critically, the Tribunal Member in his written reasons for judgment did not refer to s 35(a), although the application for the adjournment was mentioned. 70During the discussions that preceded the delivery of the judgment, the Tribunal Member took into account the interests of the second and third defendants by observing that an adjournment would delay the hearing of the case for another couple of months. As to Mr Rafferty's submission that the Tribunal can consider s 30, the Tribunal Member did not mention that section and it appears that he did not give it any consideration. I do not think that is of significance in this appeal. 71Nowhere in the discussions with the parties did the Tribunal Member mention s 35(a) or direct his attention to the consequences to the plaintiff if the application was refused. The determination of the second and third defendant's substantive application before the Tribunal centred upon expert evidence. The refusal of the adjournment was fatal to the plaintiff's case. This order was made at the very least without a proper consideration of s 35(a). 72In my respectful opinion, if the Tribunal Member had regard to s 35(a), a different decision may have been made. Mr Alexiou and Mr Hatsatouris had tried to engage a building consultant before Christmas and an expert's report was to be available within 14 days. It did not necessarily follow that the plaintiff had foregone an opportunity that was reasonably available to present evidence because the Tribunal's directions had not been strictly complied with. 73In failing to take into account a fundamental consideration, the Tribunal Member did not accord procedural fairness to the plaintiff. Orders 74I make the following orders: 1. Declare that the plaintiff was denied procedural fairness at the hearing before the Tribunal Member on 28 February 2014. 2. The award made by the Tribunal Member on 28 February 2014 in favour of the second and third defendants is set aside. 3. The matter is remitted to the New South Wales Civil and Administrative Tribunal for re-hearing. 4. The second and third defendants are to pay the plaintiff's costs of the appeal. 5. I grant to the second and third defendants an indemnity certificate under the Suitors' Fund Act 1951 in respect of the appeal. ********** 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. Decision last updated: 09 July 2014