Black v Brereton [2015] NSWSC 1781

Supreme Court New South Wales

Medium Neutral Citation: Black v Brereton [2015] NSWSC 1781 Hearing dates: 22 October 2015 Decision date: 27 November 2015 Jurisdiction: Common Law Before: Button J Decision: (1) Appeal dismissed. (2) The plaintiff must pay the costs of the defendant. Catchwords: APPEAL – statutory appeal – application for leave to appeal against a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – whether there are errors of law contained in the reasons for decision of the Appeal Panel – dispute regarding timber flooring

ADMINISTRATIVE LAW – judicial review – whether the plaintiff is entitled to relief in the nature of prerogative writs – appeal dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 38, 80, 83, 83(1) Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law), s 54 Evidence Act 1995 (NSW) Home Building Act 1989 (NSW) Category: Principal judgment Parties: Adrian Marsden Black trading as Wilair Building Supplies (Plaintiff) Trevor Lawrence Brereton (Defendant) Representation: Counsel: M Dulhunty (Plaintiff) P Batley (Defendant)

Solicitors: Savage & Love Solicitors (Plaintiff) Legal Aid New South Wales (Defendant) File Number(s): 2015/00089356

Judgment Introduction 1. This is an application for leave to appeal against a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (the Appeal Panel) pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act). It was also explained by counsel at the hearing before me that, quite apart from being founded on that statutory appeal, the application was also founded on errors of law said to give rise to relief in the nature of prerogative writs. The application came before me in the Duty List some weeks ago. 2. The plaintiff, Mr Adrian Black trading as Wilair Building Supplies (Wilair), contends that there are errors of law contained in the reasons for decision of the Appeal Panel of 14 December 2015. Those proceedings before the Appeal Panel were themselves an appeal, pursuant to Sch 4 cl 12 of the Act, from a determination made by a member of the Consumer Trade and Tenancy Tribunal (the Tribunal) at Coffs Harbour on 24 February 2014. Those proceedings had originally been brought by the respondent to this application, Mr Brereton. 3. In light of the different roles played by the parties at various stages of the litigation, I shall refer to them by name, for ease of comprehension. Background 1. The background of the matter is as follows. The dispute at first instance was originally about the provision by Wilair of timber floorboards that were installed in the home of Mr Brereton. In a nutshell, Mr Brereton asserted that the timber was of a lower grade than the grade that had been agreed upon between Mr Brereton and Wilair (in the person of Mr Black). Mr Brereton also asserted that the timber was defective, in that, after it had been laid, it shrank, thereby giving rise to unsightly and inappropriate gaps between the boards. 2. The position of Wilair at first instance was there had never been negotiations directly between Wilair and Mr Brereton. Its position was also that the timber was actually sold to a builder, on the understanding that it was of a lower grade than that asserted by Mr Brereton. Furthermore, it was contended that any shrinkage was not due to the provision of poor quality timber; rather, it was as a result of defective installation, including the fact that the concrete slab upon which the timber was laid was inappropriately moist. 3. In the reasons for decision at first instance, the Tribunal member accepted the evidence that there had been direct negotiations between Wilair and Mr Brereton. The Tribunal member also accepted that, during those negotiations, Wilair never discussed the provision of floorboards that were of the lesser quality supplied. The Tribunal member rejected the proposition that the concrete slab was moist. Finally, the member found that, in any event, a moist slab would cause swelling of the floorboards, not shrinkage. 4. In short, the Tribunal member found comprehensively in favour of Mr Brereton with regard to what would be referred to in formal curial proceedings as liability. 5. Turning to the measure of compensation, the Tribunal member accepted that the only way to rectify the problem would be for the whole floor to be removed, and a new floor to be installed. There were competing quotes as to how much that would cost: one estimated between $5,500 and $7,000; the other estimated $8,455. The Tribunal member referred to the legislation calling for "fair and equitable" compensation, and determined the appropriate sum to be $7,000. 6. The following formal order was made at first instance: I therefore formally make an order that the respondent which is Wilair Building Supplies is to pay the applicant the sum of $7,000 on or before 24 March 2014 which is a month from today's date. 1. As I have said, Wilair appealed against that order to the Appeal Panel. 2. In support of that process, Wilair filed a document entitled "Issues Subject to Written Submissions", signed by the solicitor for Wilair and dated 12 June 2014. No further written submissions made by Wilair to the Appeal Panel were placed in evidence before me, or referred to in the reasons of the Appeal Panel. 3. In a nutshell, those written submissions asserted the following: that an oral hearing on the question of leave was desirable in light of the complex nature of the seven inter-related grounds of appeal; that only an oral hearing could account for the need to clarify or further expand upon the material recorded in the transcript; that only an oral hearing would allow for the resolution of inconsistencies between the transcript and any affidavit evidence filed by the appellant; and that the transcript might not become immediately available, thereby rendering the appeal incomplete. It is clear from the document that the transcript was not available as at 12 June 2014. 4. The proceedings before the Appeal Panel were heard on the papers on 18 December 2014, and a decision and orders handed down on 14 January 2015. By that stage, the transcript was available and before the Appeal Panel. The application for leave to appeal was refused, the appeal was dismissed, and written reasons were given for the making of those orders. 5. It is that decision of the Appeal Panel that Wilair seeks to impugn before me. Statutory framework 1. The proceedings at first instance were brought pursuant to s 38 of the Act. That section is as follows: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in: (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal: (a) is to ensure 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, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases. 1. The proceedings before the Appeal Panel were brought pursuant to s 80 of the Act. That section is as follows: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 1. Finally, the proceedings before me were brought pursuant to s 83 of Act. That section is as follows: 83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings. (2) A person on whom a civil penalty has been imposed by the Tribunal in proceedings in exercise of its enforcement or general jurisdiction may appeal to the appropriate appeal court for the appeal on a question of law against any decision made by the Tribunal in the proceedings. (3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following: (a) an order affirming, varying or setting aside the decision of the Tribunal, (b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court. (4) Without limiting subsection (3), the appropriate appeal court for an appeal against a civil penalty may substitute its own decision for the decision of the Tribunal that is under appeal. (5) Subject to any interlocutory order made by the court hearing the appeal, an appeal under this section does not affect the operation of the appealable decision of the Tribunal under appeal or prevent the taking of action to implement the decision. 1. In short, it can be seen that, to the extent that the application before me was founded upon prerogative relief and the statutory appeal, an error of law must be demonstrated by Wilair. Separately, for the statutory appeal to succeed, leave must be granted. Grounds of appeal before the Appeal Panel 1. Other than the written submissions of 12 June 2014, no separate document setting out the grounds of appeal notified and pressed before the Appeal Panel was able to be located by Wilair at the hearing before me. In those circumstances, both parties were content for me to look to the grounds of appeal determined in the reasons for decision of the Appeal Panel. They were as follows: 1. The order was inept since it required payment of a sum of money before the period allowed for appealing the order had expired. 2. A lack of reasons for the order was a denial of procedural fairness. 3. The level of compensation was so high that no reasonably minded Tribunal would have ordered that compensation. 4. The decision was not fair and equitable and was seen not to be fair or equitable, the Tribunal having omitted the reasoning for the order appealed against despite an express request by the appellant [for] the Tribunal to do so, and despite the Tribunal member's statement that such reasoning would be given. 5. The amount of compensation ordered would be excessive even had the appellant been liable, which is denied. 6. The decision was against the weight of the evidence, particularly evidence tending to show (a) that any defect in the flooring occurred during the laying process, and (b) that the contract was between the appellant and Warren [Pitkin], and not an oral contract between the appellant and Mr Brereton, the respondent, and was for downgraded timber. 7. There has been a clear injustice because the decision does not take account of the only written evidence as to the cause of any loss to the respondent in this appeal. Grounds of appeal before me 1. Wilair originally moved upon a summons for leave to appeal that was filed on 25 March 2015. At the hearing, counsel for Wilair helpfully provided me with a short document that set out the pressed grounds as refined after the exchange of written submissions by counsel. That document was expanded upon in oral submissions. The grounds pressed before me were as follows: 1. Failure to accord procedural fairness. 2. Incorrect application of legislation and legal principle. 3. Non-application of correct legislation. 4. Findings against the weight of the evidence. 5. Failure to consider relevant evidence. 6. Accepting flawed evidence such as hearsay evidence and accepting as expert evidence, the evidence of non-experts who were self-interested. 7. Failure to join parties material to the issues in the matter. Discussion of each ground 1. It is convenient, with regard to each pressed ground, to set out first, a short summary of the subject matter of it, as explained by counsel for Wilair; secondly, to summarise the submissions of Wilair in support of it; thirdly, to set out the submissions of Mr Brereton in response as necessary; and fourthly, to provide my determination with regard to each ground. Ground one – failure to accord procedural fairness 1. At the hearing before me, counsel for Wilair expanded upon this ground as follows. It was said that the Appeal Panel was wrong to decide the matter on the papers, rather than convening a further hearing. That contention was based upon the proposition that the transcript of the proceedings before the Tribunal member was inadequate, in that much of the evidence of Mr Brereton for Wilair was unable to be transcribed. 2. It was said that the written submissions of 12 June 2014 had requested an oral hearing before the Appeal Panel, though it was accepted that at that stage nothing was said about the inherent inadequacy of the transcript (apart from anything else, as I have said, the transcript was not available at that stage). 3. It was conceded that, once the transcript became available, no further submissions were made to the Appeal Panel relying upon the inadequacy of the transcript as a basis for an oral hearing. It was said, however, that the Appeal Panel should, of its own motion, have realised that the transcript was so inadequate that to determine the matter based upon it would deny Wilair procedural fairness, and, on that basis, refused to proceed upon the papers. 4. I do not accept the basal submission of Wilair. In short, unassisted by submissions pointing to the asserted inadequacy of the transcript, I do not consider that it was incumbent upon the Appeal Panel, of its own motion, to determine that any characteristic of the transcript ultimately supplied meant that there was a necessity for an oral hearing. 5. It is one thing to accept that the Appeal Panel should have considered any such submission if it had been made, and should have provided procedural fairness to Wilair if it had done so; it is quite another to say that the Appeal Panel was called upon to consider such matters without the benefit of submissions. 6. This ground must be rejected. Ground two – incorrect application of legislation and legal principle 1. Counsel explained in oral submissions that this ground of appeal is founded upon the failure of the Tribunal member to join parties and order reports from experts, and that that erroneous approach was thereafter affirmed by the Appeal Panel. 2. It was also said that it was an error of law, committed by both the Tribunal member and the Appeal Panel, to apply s 54 of the Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) in determining that the floorboards supplied were required to be of "acceptable quality". 3. Finally, it was said that the asserted error with regard to the failure to order the reports of experts had to be understood in the context of evidence being given that was soundly contrary to the Evidence Act 1995 (NSW). 4. Turning to my determination, in considering this ground it needs to be recalled that what needs to be identified by Wilair are errors of law in the reasons for decision of the Appeal Panel, not an analysis of the reasons given at first instance. 5. Bearing in mind that the proceedings before the Appeal Panel were the determination of errors of law said to have been committed at first instance, and the determination of whether leave should be granted with regard to errors of mixed fact and law said to have been committed at first instance, I consider that there needs to be a close focus by me upon the grounds of appeal actually mounted before the Appeal Panel. 6. It is true that the reasons for decision of the Appeal Panel say nothing about the joinder of parties or the ordering of expert reports. But that is for the simple reason that no ground of appeal placed before the Appeal Panel contended that any such error had been committed by the Tribunal member. 7. Similarly, it can be seen that the Appeal Panel did indeed apply the test of "acceptable quality" derived from s 54 of the Competition and Consumer Act 2010. But again, that cannot be something that founds a ground before me, because no complaint about the Tribunal member having done so was pleaded before the Appeal Panel. 8. Finally, it can be seen that the legislation mandates that, both at first instance and before the Appeal Panel, the rules of evidence have no application. And in any event, again, there was no ground of appeal before the Appeal Panel asserting that the Tribunal member had wrongly failed to apply the rules of evidence, whether that be in a strict sense or in a practical way. 9. In those circumstances, I do not consider it apposite for Wilair now to seek to impugn the reasons for decision of the Appeal Panel on the basis that those reasons did not deal with contentions that had themselves not been placed before the Appeal Panel for its determination. 10. Ground two must be rejected. Ground three - non-application of correct legislation 1. It was explained that this ground is founded upon a failure to apply the Home Building Act 1989 (NSW). Reliance was placed on a reference in the catchwords of the reasons for decision of the Appeal Panel to "building dispute". 2. It is quite true that, in its reasons for decision, the Appeal Panel said nothing about applying the Home Building Act; indeed, it said nothing about that piece of legislation at all. But that is entirely to be expected: none of the grounds of appeal placed before the Appeal Panel said anything about that legislation either. I do not accept that it was an error of law for the Appeal Panel to fail to apply a piece of legislation that had not been brought to its attention, let alone relied upon by Wilair before that body. 3. As for the reference to a particular phrase in the catchwords, the fact is that this was a building dispute, in the broad sense of the term. And to my mind, my task is to analyse the orders made, and the reasons given by the Appeal Panel for those orders, not to seek to parse catchwords that are nothing more than an informal summary of those reasons. 4. Ground three must be rejected. Ground four - findings against the weight of the evidence 1. Counsel explained that the findings that were relied upon were as follows. 2. The first was that the amount of compensation actually ordered – that is, $7,000 – went far beyond what was originally claimed by Mr Brereton. There having been no amendment to the claim, it was not appropriate for the Tribunal member to have ordered that sum. 3. Secondly, it was said that the Tribunal member accepted the oral evidence of Mr Brereton, despite its contradiciton by documentary evidence that supported the position of Wilair. 4. It can be seen, both from ground 6 before the Appeal Panel, and from the reasons for decision of the Appeal Panel at [24]-[30] and [38]-[42], that the question of the availability of certain findings of fact was indeed agitated before the Appeal Panel. 5. In a nutshell, the Appeal Panel found that the quantum of compensation was reasonably open (to use an inexact phrase) to the Tribunal member on the evidence; that so was the acceptance that the timber was defective, not its installation; that the agreement was between Mr Black and Mr Brereton; and that the timber supplied was a lesser quality than what was agreed. 6. With regard to the question of quantum, the Appeal Panel said that: [30] The Tribunal below found that the only way to repair was to remove the defective floorboards and replace them. The evidence below as to the quantum of compensation ordered was contained in two quotes. The Tribunal noted that one quote was for $8,455 and the other was between $5,500 and $7,000. The Tribunal decided 'in view of all these figures in front of me' to determine as a fair and equitable amount, the sum of $7,000. Applying the law just noted, it is not manifestly unreasonable so as to amount to an error of law for a Tribunal which has two estimates from experts in evidence before it to order an amount which was within the range from one, and less than the quote of the other. This ground of appeal is thus not made out. 1. With regard to the latter, the Appeal Panel said that: [41] … there was evidence below: (a) in the form of an invoice from Boral Ltd showing the timber supplied by it to the appellant was 'reject flooring' although it was sold to the respondent as 'downgrade quality'; (b) in the form of a statement from [the builder] that the respondent ordered the timber directly from the appellant; (c) in the form of evidence from both [the builder] and carpenter and joiner…that the flooring was sub-standard and that this defective quality caused the shrinking and need for replacement. [42] We consider all of this evidence to be at least plausible, including when viewed against the evidence in its entirety; evidently the Tribunal below regarded it as convincing. We therefore reject the submission that such findings were against the weight of evidence. We would not otherwise grant leave and reject this ground. 1. Turning to my determination of this ground, there is no error of law demonstrated in the approach of the Appeal Panel to these two contentions. 2. Separately, it was not suggested that the Tribunal member was incorrect in recounting the various quotes that had been placed before him with regard to repairs of the flooring. 3. Finally, I do not accept that, in proceedings before the Tribunal, there must be a strict adherence to the rules of amendment of pleadings with regard to quantum of compensation; indeed, I consider that the regime in the Tribunal is very much to the contrary. 4. Because I do not consider that there was any error of approach by the Appeal Panel to any assertedly erroneous finding of fact by the Tribunal member, this ground must fail as well. Ground five - failure to consider relevant evidence 1. Before me it was explained that this ground is based upon the absence of any mention of the affidavit of Mr Black of 24 December 2014 in the reasons for decision of the Appeal Panel. 2. So much may be accepted. But (as one would expect) the grounds of appeal notified on 12 June 2014 to the Appeal Panel make no mention of an affidavit of Mr Black of 24 December 2014. Quite apart from that, it will be recalled that the Appeal Panel was called upon to determine whether there had been errors of law, or errors of mixed fact and law, in the determination of the Tribunal member of 20 January 2014. I do not accept that that exercise called for the consideration of evidence that came into existence eleven months after the proceedings at first instance had concluded, and therefore was completely unavailable to the Tribunal member. 3. This ground must be rejected. Ground six - accepting flawed evidence 1. It was explained that this ground was something of a repetition of matters that had been placed before me in support of ground two. For the reasons that I have given with regard to ground two, ground six must be rejected as well. Ground seven - failure to join parties material to the issues in the matter 1. Again, before me it was explained that this ground was something of a repetition of one of the foundations of ground two. For the reasons that I have already given with regard to ground two, ground seven must be rejected as well. Conclusion 1. All grounds having failed, the application must be dismissed. Ancillary determination 1. All grounds having been determined by me on the merits and rejected, it is not necessary for me to say anything about the entirely separate prerequisite of a grant of leave by me for the agitation of a statutory appeal from the Appeal Panel in this Court. Costs 1. There is no reason why costs should not follow the event. Orders 1. I make the following orders: 1. Appeal dismissed. 2. The plaintiff must pay the costs of the defendant.