Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McErlane v Kelly [2015] NSWCATAP 93 Hearing dates: 29 October 2014 Date of orders: 20 May 2015 Decision date: 20 May 2015 Jurisdiction: Appeal Panel Before: J Smith, Senior Member P Wass SC, Senior Member Decision: 1.Appeal dismissed 2.Order of the Tribunal of 4 July 2014 that the appellant is to pay to the respondent the sum of $42,350 forthwith is confirmed. Catchwords: ADMINISTRATIVE LAW - procedural fairness – absence at the hearing – case not adequately put – evidence required of case to be put had the party been present at the hearing. Legislation Cited: Civil and Administrative Tribunal Act 2013; ss. 36 and 38 Civil and Administrative Tribunal Regulation 2013; Regulation 9(1)(b) Cases Cited: Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598; 97 ALR 177; (1990) 65 ALJR 167; 21 ALD 651. Kioa and Ors v West [1985] HCA 81; (1985) 159 CLR 550 at 585 and at 612-615; (1985) 62 ALR 321; (1986) 60 ALJR 113; 9 ALN N28. Collins v. Urban [2014] NSWCATAP 17 Kline v. NSW Land and Housing Corporation [2014] NSWCATAP 41 Category: Principal judgment Parties: Christopher Stanley McErlane (Appellant) Tanya Kelly (Respondent) Representation: Counsel: George (Appellant) N/A Self Represented (Respondent) Solicitors: Reimer Winter Williamson Lawyers (Appellant) N/A Self Represented (Respondent) File Number(s): AP 14/46513 Decision under appeal Court or tribunal: NCAT Jurisdiction: Consumer and Commercial Division Date of Decision: 4 July 2014 Before: T Simon File Number(s): HB 14/27596 REASONS FOR DECISION 1. For the reasons that follow, the Appeal Panel has determined to dismiss the appeal and uphold the decision of the Tribunal on 4 July 2014 not to set aside the order made on 24 March 2014 and to confirm the Tribunal's order that the appellant pay to the respondent $42,350. Introduction 1. The matter was listed before the Tribunal for hearing on 4 July 2014, on the appellant's application to set aside an order made on 24 March 2014 that the appellant pay to the respondent $42,350. That application was refused. 2. The appellant appeals against that refusal, citing 9(1)(b) of the Civil and Administrative Tribunal Regulation 2013 ("the Regulation") and submitting that the Tribunal misunderstood (and presumably therefore misapplied) the relevant test required under the Regulation and failed to have regard to sections 36 and 38 of the Civil and Administrative Tribunal Act ("the Act") in considering the Regulation. 3. The appeal grounds raise alleged errors of law, in respect of which leave to appeal is not required: s 80(2)(b) of the Act. See also Hammond v. Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car sales [2015] NSWCATAP 65 at [40]. Background 1. In about 2006, the appellant, a carpenter and joiner, entered into a contract with the respondent, the owner and occupant of premises at Wallacia ("the Premises"), to perform building works at the Premises. The appellant carried out Works in 2006 and 2007. 2. On 27 August 2013, the respondent applied to the Consumer, Trader and Tenancy Tribunal ("the Tribunal") for work to be carried out at the Premises, specifically for demolition and replacement by the appellant of the respondent's back decking. 3. On 21 November 2013, the Tribunal made orders for the filing of evidence. Both parties were aware of the orders. 4. The respondent lodged a bundle of documents, including a statement and an expert report in support of her claim for an amount in excess of $42,000. The appellant filed a document entitled "points of defence" and a quote for rectification work in the sum of $12,774.58 from PA and LC Reynell Building ("the quote"). It is noted that the quote was for a different sized deck and was for materials only. 5. On 4 February 2014, a notice that the proceedings were listed for hearing on 24 March 2014, was sent to both parties at addresses on the Tribunal's record. The appellant asserts that he did not receive the notice of the hearing and therefore did not attend. Tribunal's Initial Decision 1. When the matter was called for hearing on 24 March 2014, the respondent appeared. There was no appearance by the appellant. The matter proceeded with the respondent tendering her evidence and providing oral evidence. 2. Relevantly, the Tribunal, in ordering that the appellant pay to the respondent $42,350, held that: 1. The notice of hearing had been sent to the appellant at his nominated address; 2. The justice of the case required the hearing to proceed; 3. The points of defence and the quote obtained by the appellant was taken into account by the Tribunal; and 4. The respondent's claim for work could be dealt with as a claim for a money order for cost of rectification of incomplete and defective work. 1. On 20 May 2014, the appellant sought to have the order set aside on the grounds that: 1. He was unaware of the hearing date; 2. He complied with directions of the Tribunal for the filing of evidence and intended to contest the hearing; 3. He was denied the opportunity to present his case, to put questions to the respondent, and raise his defence; and 4. He was denied the opportunity to question and/or present evidence as to the cost of rectification, the respondent's quote being almost $30,000 more than the appellant's quote. 1. On 4 July 2014 the Tribunal dismissed the appellant's application to set aside the order. 2. In its reasons, the Tribunal relevantly noted at [14]: The Tribunal notes that this is a relatively new provision. It was not contested that the decision was made in the absence of the contactor. However, two issues arise from the contractor's application. The first is if the Tribunal should extend the time for the making of the set aside and second is if the contractor's case has been adequately put to the Tribunal. 1. The Tribunal decided to extend time for reasons not presently relevant and turned its attention to the second question. 2. The Tribunal noted at [19]: Regulation 9 gives a limited right for the set aside which varied from an appeal right. The Tribunal agrees with the homeowner's submissions that the contractor has not met the threshold test that his case had not been adequately been put to the Tribunal. The reasons for the decision clearly indicate that the Member considered the documents of the contractor and clearly made reference to the expert report of the contractor. The Tribunal also made a finding that it was not satisfied by the contractor's expert evidence in relation to the reasonable cost of rectification because it was a quote for materials only and related to an incorrect deck size. The contractor did not address how presenting his case or how asking questions would have altered that decision. The Tribunal agrees with the homeowner's submission that the mere assertion of a denial of natural justice is not enough. The failure to allow the contractor to make oral submissions or examine a witness does not in itself satisfy the test in Regulation 9(1)(b). The builder has failed to demonstrate or provide any evidence that his absence has resulted in his case not being adequately put to the Tribunal or how it would have made a difference…. The Tribunal is satisfied that the contractor's case has been adequately put to the Tribunal. The contactor has failed to demonstrate otherwise and the application for set aside is dismissed. The Appellant's Contentions 1. The Appellant first filed a Notice of Appeal on 24 July 2014, in respect of a Decision dated 4 July 2014. 2. In it he relies on the following grounds of appeal: 1. The Tribunal failed to consider the requirements and effect of section 36 of the Act and sections 33 and 34 of the Interpretation Act 1987 2. The Tribunal failed to consider the requirements and effect of section 38 of the Act and sections 33 and 34 of the Interpretation Act 1987 3. The Tribunal misunderstood the meaning, effect, test and considerations of what clause 9 of the Civil and Administrate Tribunal Regulation required. 4. The Tribunal erred in not allowing the Appellant to challenge the admissibility of the Respondent's evidence. 5. The Tribunal erred in denying the Appellant to be heard and in making its determination on acceptance of evidence after the hearing. 1. The appellant seeks to have the orders of the Tribunal dated 24 March 2014 set aside and to remit the matter for a rehearing. 2. In his submissions the appellant contends that, as he had filed points of defence in the proceedings, the Tribunal had to be aware that the issues in the proceedings were: first, the terms of the contract; second, the performance of the contract with due care and skill; and third, if the contract had not been performed with due care and skill, what work was the appellant required to do to make good the works? The Respondent's Contentions 1. The respondent, who appeared unrepresented before the Appeal Panel, stated that she had provided at the hearing all the information available to her, most significantly the building report. 2. She also relevantly contended that she had provided all the evidence in the matter and that the respondent had provided no evidence upon which the Appeal Panel could act. She also contended that he had been provided with all the documents prior to the initial hearing and was on notice of the issues. Resolution of the Regulation 9(1)(b) Issue – Grounds 3, 4, and 5 1. Regulation 9(1)(b) is in the following terms. 9 Additional power to set aside or vary decision determining proceedings (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: … (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. 1. It is noted that the only matter ultimately pressed for determination before the Appeal Panel is whether or not the Tribunal was in error in coming to the conclusion that it could be satisfied that the appellant's absence has resulted in his case not being adequately put to the Tribunal. 2. Relevantly, paragraph 8A of the Tribunal's standard application form, directed the appellant to present before the Appeal Panel (and indeed directed him to present before the Tribunal), evidence to support his contention that his absence has resulted in his case not being adequately put to the Tribunal by providing an explanation, supported by such evidence, that the decision would have been different had he been present. That in turn required the appellant to direct his attention to what he would have done in the presentation of his case, had he appeared, in order to contest the respondent's claim. 3. The appellant contends that Regulation 9(1)(b) requires that for an order to be properly made under it, there must be some additional factor (other than the party's absence) that makes it unjust for the initial order to stand. 4. In the Appeal Panel's view, that question of justice in turn requires an analysis as to whether or not, by reason of the absence of the appellant at the hearing on the evidence he had garnered for that purpose, he has lost a significant possibility or a chance which was fairly open that, by his presence, he may have achieved a more favourable result in respect of either one or more of his individual claims. 5. In that sense, paragraph 8A of the Tribunal's application form ought more accurately read "could" instead of "would" where referred to above. However, on the facts of this case, nothing turns on that difference, as both require that any applicant put before the Tribunal evidence upon which he may have achieved a more favourable result had he appeared, something which he did not do, either on the application before the Tribunal, or before the Appeal Panel. 6. This requirement is consistent with the Tribunal's duty to accord a person procedural fairness and it arises because the power involved is one which may "destroy, defeat or prejudice a person's rights, interests or legitimate expectations": Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598; 97 ALR 177; (1990) 65 ALJR 167; 21 ALD 651. The content of the duty in a particular case depends upon the circumstances of the case and the nature of the power being exercised: Kioa and Ors v West [1985] HCA 81; (1985) 159 CLR 550 at 585 and at 612-615; (1985) 62 ALR 321; (1986) 60 ALJR 113; 9 ALN N28. 7. In Collins v. Urban [2014] NSWCATAP 17, the Appeal Panel comprising of Wright J, President, S Westgarth, Deputy President and M Harrowell, Principal Member, commencing at [40], held in respect of hearings before the Tribunal with respect to matters of procedural fairness, that s 38(5)(c) of the NCAT Act requires that the Tribunal "take such measures as are reasonably practicable ... to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings". 8. This loss of a chance to obtain a more favourable result can only be established by the appellant if he is able to establish that he put before the Tribunal what he might have said or done before the Tribunal at the original hearing, had he been present and that, in doing so, he may have achieved a more favourable result in any part of his case. 9. In Hammond at [93] the Appeal Panel took into account, in determining whether or not there was, as the Appeal Panel expressed it, an arguable case for a different decision, the fact that the appellant in that case was able to provide a factual basis to indicate that there was some basis for defending aspects of the proceedings. No such factual basis was presented in this case, either before the Tribunal or before the Appeal Panel. Accordingly, there is no evidence upon which the Tribunal could have concluded that there was any basis upon which the appellant could have procured a better result in the litigation. 10. Although submissions were made before the Appeal Panel that he has lost the opportunity to obtain a better result, there was no evidence put before the Tribunal, or indeed before the Appeal Panel, as to what the appellant would have said or done, had he been present at the Tribunal hearing in order to affect in any way the likelihood that he may have achieved a more favourable outcome in the litigation. 11. Accordingly, the Appeal Panel finds that Tribunal Member was not in error in dismissing the application and dismisses the appeal on the grounds set out at paragraph 17(3), (4) and (5). Resolution of the Issues regarding Sections 36 and 38 of the Act – Grounds 1 and 2 1. Section 36 of the Act requires that the Tribunal act in its practices and procedures to ensure that it facilitates the just, quick and cheap resolution of the real issues in the proceedings and in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings. Section 38 of the Act provides that the Tribunal is not bound by the rules of evidence and that it can inform itself as it sees fit, subject to the rules of natural justice. It also provides that the Tribunal conducts itself with as little formality as the circumstances permit whilst ensuring that all relevant material is disclosed to it and, most relevantly in this case, that the parties have had a reasonable opportunity to be heard or otherwise have their submissions considered. 2. The Appeal Panel finds that the way in which Regulation 9 is to be understood, as exposed by the above reasoning, is adequate to ensure that ss. 36 and 38 of the Civil and Administrative Tribunal Act 2013 ("the Act) is complied with, ensuring a fair result and that procedural fairness is accorded to the appellant. Provided that the appellant can establish to the satisfaction of the Tribunal on proper evidence that the case could have been conducted differently and, more importantly, in a way that could have led to a more favourable outcome, then he will have satisfied the provisions of Regulation 9(1)(b). Conclusion 1. The Appeal Panel rejects the appellant's contention that the Tribunal ought to have been satisfied that the appellant's case was not adequately put to the Tribunal by reason of his absence. It is not sufficient to assert, as he does before the Appeal Panel, that his case was not adequately put. It must be established that any such inadequacy resulted from his absence. This, in turn, required him to address what he would have done had he been present. 2. Finally, the appellant contends that the justice of the case requires the appeal to be upheld on the basis that although the respondent's application sought an order for "work or services" that is, for demolition and reconstruction of the decking by the appellant, the Tribunal made at the conclusion of the hearing, an order for compensation. 3. The appellant in his submissions before this Panel describes the decision as "troublesome". However, it is noted that it was open to the Tribunal pursuant to the Home Building Act 1989 s 48O(2), to make an order for the payment of monies, despite the application being framed as a "work" order, and that for the appellant to succeed on this ground, he must establish, had he been present at the hearing, what he would have done or said to resist such an order being made. He did not do so before the Tribunal or before the Appeal Panel. 4. The appellant referred the Appeal Panel to the decision of Kline v. NSW Land and Housing Corporation [2014] NSWCATAP 41, a case which deals with procedural fairness and a party's right to have notice of the hearing and a right to be heard. It is not, however, a case determined by reference to Regulation 9(1)(b). 5. In respect of Regulation 9(1)(b), the Appeal Panel finds that in order to determine whether or not the appellant's case has not been adequately put by reason of his absence, is one which the Appeal Panel finds is not based on guesswork or speculation, but on the consideration of evidence to be lead as to what material would have been lead, had, in this case the appellant, been present at the hearing. It requires at the very least, an explanation supported by evidence, as why the appellant's case was not adequately put by reason of his absence. That is, there must be a causal relationship between the absence and any resulting inadequacy in the presentation of the case. 6. It was submitted on behalf of the appellant that the Tribunal could not have known what would have been put had the appellant appeared at the hearing and stated, for example, that the appellant could have given oral evidence. It was noted on behalf of the appellant that the respondent gave oral evidence at the hearing and that, accordingly the appellant could also have done so. 7. In argument before the Appeal Panel the appellant accepted however that there was no evidence, either in the application to set aside or before the Appeal Panel, as to what the appellant would have done or said had he been present at the Tribunal hearing. The highest the appellant's submission rose was that "he wanted to do something". 8. That lack of evidence is critical to the outcome of this appeal. In order for the appellant to succeed in making an application pursuant to Regulation 9(1)(b), it was necessary for him to establish to the satisfaction of the Tribunal that his failure to adequately present his case was a result of his failure to attend at court. That being so it was necessary for him to establish what, if anything he would have said or done, had he been present. As we have stated, he has failed to provide any such evidence, either before the Tribunal or before the Appeal Panel and accordingly the Appeal was doomed to fail. 9. Sections 36 and 38 of the Act and general common law principles of procedural fairness do not abrogate the necessity of an appellant who moves pursuant to Regulation 9(1)(b) to put before the Tribunal sufficient, or indeed any, evidence of what he would have done had he appeared in the proceeding. 10. Accordingly, the Appeal Panel orders as follows: 1. Appeal dismissed; 2. Order of the Tribunal of 4 July 2014 that the appellant is to pay to the respondent the sum of $42,350 forthwith is confirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 20 May 2015