Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Short v Smith [2015] NSWCATAP 108 Hearing dates: 18 May 2015 Date of orders: 16 June 2015 Decision date: 16 June 2015 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President M Anderson, Senior Member Decision: Leave to appeal is granted The appeal is upheld The decision below is set aside The appellant is to obtain any expert reports upon which he intends to rely in defending the proceedings and such report is to be filed with the Tribunal and a copy served on the respondent within six weeks from the date of these orders. The proceedings are remitted to the Consumer and Commercial Division for rehearing. Catchwords: ADMINISTRATIVE LAW- Civil and Administrative Tribunal (NSW)- whether there was a substantial miscarriage of justice under clause 12(1) of Schedule 4 Civil and Administrative Tribunal Act 2013 (NSW)- appellant not afforded a reasonable opportunity to be heard in the hearing at which he did not appear- there is insufficient evidence to be satisfied that the appellant knew of the date of the hearing- if the Tribunal did not find that the appellant was an employee the appellant defends the case against him on the basis that the work was not defective and then relies upon an expert report in response to the report that the respondent had relied upon- leave to appeal under section 80(2)(b) Civil and Administrative Tribunal Act 2013 (NSW) granted and appeal allowed- order that the appellant obtain an expert report- file and serve a copy on the respondent within six weeks and such report to be used in the remitted hearing. Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Regulations 2013 Cases Cited: Hammond v. Ozzy's Cheapest Cars [2015] NSWCATAP 65 Category: Principal judgment Parties: Appellant: Jason Short Respondent: Darren Smith Representation: Both parties represented themselves File Number(s): AP 15/06825 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal New South Wales Jurisdiction: Consumer and Commercial Division Date of Decision: 30 January 2015 Before: D Barnetson File Number(s): HB15/00199,HB 14/39812 REASONS FOR DECISION Introduction 1. The appellant has lodged this appeal against a decision made on 30 January 2015 in the Consumer and Commercial Division of the Tribunal. The effect of that decision was to dismiss the appellant's application to set aside the earlier decision of the Tribunal made on 3 December 2014. The decision of 3 December 2014 found the appellant liable to the respondent in the sum of $68,139.50 and ordered the appellant to pay that sum to the respondent immediately. Background 1. The background to the appeal is set out in the following paragraphs. 2. The respondent (who was the applicant below) filed an application in the Tribunal in August 2014 and the Tribunal listed the application for a directions hearing on 22 September 2014 by a notice (dated 21 August 2014) which was sent to the parties and had the heading "Both parties to attend by Telephone". Prior to that date, the Tribunal had issued a notice to the parties dated 14 August 2014 advising the parties that procedural directions had been made to the effect that the applicant and the respondent were to provide a telephone number to the Tribunal's registry on or before 25 August 2014 and further providing that the parties were to provide "all documentation to be relied upon at the hearing to the Tribunal and the other party" on or before the same date (25 August 2014). That correspondence was addressed to the appellant at, a specific lot in Cornfield Parade, Fisherman's Paradise and also to another address at Ulladulla. The subsequent notice of 21 August 2014 was also sent to the appellant at the same two addresses. 1. The Tribunal's file contains a record to the effect that a member of the registry staff contacted the appellant to obtain his contact number for the directions hearing and that he advised that his mobile number was his contact number. The file record discloses that the registry staff member stated that the Tribunal would ring the respondent on 22 September 2014, "around 11:30am" and that if he did not answer the directions hearing will proceed in his absence. 2. The Tribunals file records discloses that the telephone hearing occurred on 22 September 2014 but that the appellant did not attend by telephone as was apparently planned by the Tribunal. At the appeal hearing the respondent (to the appeal) who was in attendance by telephone on 22 September 2014 informed the Appeal Panel that the Tribunal had attempted to contact the appellant without success. 3. The Tribunal made directions on 22 September 2014 for the parties to exchange evidence and a written copy of those directions was sent to the appellant at the Cornfield Parade address and to another address at Ulladulla. There is evidence that the Ulladulla address was not an appropriate address because the Tribunal file contains evidence that correspondence sent to that address was returned. 4. By a notice dated 7 November 2014 the Tribunal advised the parties that the hearing of the application would occur on 3 December 2014 ("the original hearing") at the Bateman's Bay Court House. That notice was sent to the appellant at the Cornfield Parade address. The file record discloses that the hearing went ahead in the presence of the respondent (the applicant below) but that the appellant was absent. A decision was published on 3 December 2014 and a corrected decision (correcting an error made in the first decision) was published on 8 December 2014. The essence of the decision was that work conducted by the appellant at the address of the respondent was defective and that that work had been conducted pursuant to a contract between the two parties. The respondent relied on an expert report and a Scott Schedule but there was no evidence before the Tribunal from the appellant. The Tribunal stated that it was persuaded by the evidence of the expert put forward by the respondent (the applicant below). 5. On 5 January 2015 the appellant lodged a "set aside application" by which the appellant sought to set aside the decision of 3 December 2014. The appellant stated that in that application he had received notice of the decision on 16 December 2014. He also stated that he did not receive notice of the hearing of the proceedings. He said that his correct address is Lot XX Fisherman's Paradise Road, not XX Cornfield Parade. He further stated that as a result the decision was made in his absence and he had been unable to adequately put his case to the Tribunal. 6. In the "set aside" application the appellant also stated that he had lodged his application within seven days of becoming aware of the decision (ie 16 December 2014). That does not seem to be accurate as the set aside application appears to have been filed on 5 January 2015 which is outside of the period of seven days from 16 December 2014 required by Regulation 9 of the Civil and Administrative Regulations 2013 (The Regulations). The Tribunal below on 6 January 2015 extended the time within which the appellant may make the application to set aside to 5 January 2015. 7. The appellant also stated in the set aside application that he wanted to put forward evidence to support his case and that he would require "an order for access to the respondent's property to obtain photos, reports and such other evidence as I need to adequately put my case and argue my defence." 8. Following receipt of that application the Tribunal made orders for the parties to file submissions and then on 30 January 2015 a member of the Tribunal made orders dismissing the application on the basis that despite the absence of the applicant at the hearing the Tribunal was not satisfied that that party's case had not adequately been put to the Tribunal. The reasons went on to state: "1. The mail was sent to the correct address to the applicant as evidences (sic) by his licence number 76596C; the records of registered mail being received by him at that address; and by the fact that none of the mail from the Tribunal to that address was returned unclaimed or undelivered. 2. The applicant previously failed to attend the hearing of 22 September 2015, even though he was contacted by phone by Tribunal staff, given the details of the time and date and provided his phone number for use at the hearing. 3. He has failed to comply with any directions of the Tribunal. 4. He has not provided any information which would indicate that he had relevant evidence of submission which would have been presented at the hearing on 3 December 2014." The Appeal 1. The appellant now appeals the decision of 30 January 2015 dismissing his "set aside" application. His grounds of appeal (filed on 13 February 2015) state as follows: 1. He acknowledges receiving a call whilst at work but was distracted. He did not understand that a hearing had been convened for 22 September 2014 and had no other notification of that hearing. He had no notification of the hearing on 3 December 2014. 2. The contract he entered into with the respondent was an employment contract by which he agreed to perform work as an employee for the respondent and in return be paid wages. He stated that he had not issued any invoices and that the Tribunal should conclude that he was a wage earner only. 1. In the notice of appeal the appellant stated that he was employed as a wage earner and that he was owed $4,000.00 for wages and material that "had not been paid for." 2. The respondent has filed a reply to appeal. The respondent denied that he had employed the appellant and provided documents in support of his argument that he had contracted with the appellant to undertake certain work. That documentation included a quotation issued by the appellant referring to the appellant's ABN number, further quotations, an invoice dated 3 December 2014, a bank statement showing the payments made to the appellant on the following dates 26 February 2013, 28 February 2013, 3 March 2013, 14 March 2014, 17 March 2014, 18 March 2014, 19 March 2014 and 20 March 2014. Each payment was for $1,000.00. The respondent also attached to his Reply a number of email exchanges between himself and the appellant. These will be referred to subsequently in these reasons. 3. The respondent submitted some evidence from Australia Post which the respondent asserted was evidence that the appellant received documents sent to him by the appellant concerning these proceedings on 2 December 2014 (i.e. the day before the original hearing). The appellant subsequently filed a submission and the respondent filed submissions as well. 1. The appellant's submissions contained more information concerning the assertion that he was engaged as an employee only. 2. The respondent's further submissions contain evidence suggesting that the appellant had been unlicensed to undertake the work the subject of the dispute during most of the period in which the work was undertaken. The appeal hearing 1. At the hearing of the appeal the appellant submitted from the bar table that he had experienced difficulties with his mail for many years. He said that this arose because of the fact that his address is known by two different descriptions, one being the Fisherman's Paradise Road description and the other being the Cornfield Parade description. Both descriptions describe the same lot but mail is often not delivered to his mail box. 2. The appellant also submitted that he did not know of the hearing on 22 September 2014 and nor did he know of the hearing on 3 December 2014. 3. The appellant stated that mail addressed to the Cornfield address was not always delivered and that last year he stopped using that address in favour of the Fisherman's Paradise Road address. Grounds of Appeal 1. The appellant's main point relevant to this appeal is he was not afforded a reasonable opportunity to be heard. His secondary point is that he was an employee and therefore not liable to the respondent for defective work, but further, if he is held to be a contractor (as opposed to an employee) he would like to present expert evidence in defence of his workmanship. Decisions 1. The Appeal Panel finds that there is insufficient evidence to enable the Appeal Panel to be satisfied that the appellant knew of the orders made on 22 September 2014 and the hearing on 3 December 2014. The appellant asserts that he did not know of either the order of 22 September 2014 or the hearing on 3 December 2014 and accordingly the Appeal Panel finds that the appellants' assertions in that regard must be accepted, notwithstanding some evidence to the contrary. The contrary evidence comes from the respondent who submits that he forwarded his submissions to the appellant by registered post. He has produced a receipt provided by Australia Post which appears to indicate that the appellant signed for registered mail on 2 December 2014. In our view this evidence is insufficient to alter our view that the appellants submissions must be accepted because there is insufficient evidence to be satisfied that the appellant knew of the hearing. 2. It is a fundamental principle that a party to legal proceedings must have a reasonable opportunity to be heard. This principle was recently considered in a decision of an Appeal Panel in Hammond v. Ozzy's Cheapest Cars [2015] NSWCATAP 65. The Appeal Panel said that justice generally requires that parties against whom orders are made must be given a reasonable opportunity of appearing and presenting their case 3. The appellant also made submissions concerning his assertion that he had been engaged as an employee only and that accordingly he was not liable to the respondent because any work that he did was done under the direction or supervision of the respondent. He submitted that the arrangement between himself and the respondent was that he would be paid the sum of $200.00 per day every seven days, and that he would undertake the work agreed and would as well buy materials. He acknowledged that he had issued a quotation but said that he was not engaged as a contractor pursuant to the quotation but rather engaged as an employee. He confirmed that he had no pay slips, that he had not filed a tax return and that he had not received any superannuation contributions. He did not ask the respondent for evidence that the respondent had Workers Compensation insurance. He also said that he had supplied his own tools and he had built into the agreed sum of $200.00 per day a "tool allowance". 4. The appellant also submitted that if the Tribunal did not find that he was an employee he wanted to defend the case against him on the basis that the work was not defective and that he wanted to supply an expert report in response to the report that the respondent had relied upon. 5. In response to a question from the Appeal Panel the appellant stated that if he were given an opportunity for a rehearing he would wish to obtain his own expert report and could do so within four to six weeks. 6. The respondent made submissions from the bar table which are summarised in the following paragraphs. 7. The respondent confirmed that at the directions hearing on 22 September 2014 the Tribunal attempted to ring the appellant but was unsuccessful. 8. The respondent stated that following the directions made on 22 September 2014 he had caused his evidence to be posted to the appellant and he relied upon evidence he had collected from Australia Post to the effect that the evidence he had posted was collected by the respondent on 2 December 2014. 9. The respondent denied that he had employed the appellant. He had no knowledge of the agreement to pay $200.00 per day and pointed to the fact that he had not made payments in accordance with such arrangement. 10. In our view the evidence before us does not support the proposition that the appellant was an employee. If this appeal was only concerned with whether the appellant's case that he was an employee was not adequately put we would dismiss the appeal. However, that is not the only issue. The other issues are that it cannot be established that the appellant was aware of the hearing on 3 December 2014 and that he is entitled to be heard on his argument that if he was not an employee he would like to defend the proceedings demonstrating the work was not defective. 11. At the appeal hearing the appellant said that he had a copy of the respondent's report. 12. In all of the circumstances the appellant should be granted leave to appeal under section 80(2)(b) Civil and Administrative Tribunal Act 2013 (NSW) ("the Act") and clause 12(1) of Schedule 4 of the Act on the basis that there was a substantial miscarriage of justice in the original hearing. 13. Accordingly, we are also of the view that it is appropriate for the reasons given to uphold the appeal and order a rehearing. In order to assist in progressing this matter to a rehearing we will order that the appellant obtain an expert report, file it with the Tribunal and serve a copy on the respondents within six weeks of today. The proceedings should be listed for a directions hearing as soon as possible to address any other matters necessary to have the rehearing occur without further excessive delay. Our opinion on the evidence concerning the appellant's argument that he was an employee does not preclude the appellant from putting the same argument before the Tribunal again. 14. Orders will be made accordingly. ********** 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: 16 June 2015