Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mason v Hyland [2018] NSWCATAP 203 Hearing dates: 9 July 2018 Date of orders: 31 August 2018 Decision date: 31 August 2018 Jurisdiction: Appeal Panel Before: R Titterton, Principal Member R Perrignon, Senior Member Decision: 1. The appeal is dismissed. 2. The order made on 4 June 2018 staying the operation of the order made on 16 May 2018 is lifted. Catchwords: APPEALS – where Tribunal decision made in absence of party – where party does not pursue application to set aside the decision – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 Andy and Patrick Floor Covering Pty Ltd t/as Silver Trading Timber Floor v Li [2018] NSWCATAP172 R v The War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CL5 228Wholesale Auto City Pty Ltd v Jobson [2018] NSWCATAP 25 Texts Cited: Aronson and Groves in Judicial Review of Administrative Action (5th Ed) Category: Principal judgment Parties: Mathew Mason t/as Neverfail Pest & Termite Solutions (Appellant) Margaret Hyland (Respondent) Representation: Appellant: M Whittaker, Manager Respondent: self-represented File Number(s): AP 18/23657 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 16 May 2018 Before: P Smith, General Member File Number(s): GEN 18/16351 REASONS FOR DECISION Summary 1. Ms Hyland, who is the respondent to this appeal, contracted with Mr Mason, who trades as Neverfail Pest & Termite Solutions, for the provision of termite extermination services. She filed an application with Consumer and Commercial Division of the Tribunal (the Tribunal) on 9 April 2018 in respect of those services. She sought an order that Mr Mason pay her $8,115.00. 2. The hearing on 16 May 2018 proceeded in the absence of Mr Mason. The Tribunal at first instance ordered that Mr Mason refund to Ms Hyland the costs paid by her for his services and her building costs for the additional damages caused by the termites in the premises after the service was carried out. Mr Mason says that he never received a notice of hearing, and that the orders and findings should be set aside. The principal issue for determination by the Appeal Panel is whether the Tribunal erred in proceeding to hear and determine the matter in his absence. 3. For the following reasons, the appeal is dismissed, and the stay on the Tribunal's order made by the Appeal Panel on 4 June 2018 lifted. Tribunal Decision 1. The Tribunal gave brief written reasons for its decision. Relevantly, the Tribunal found that: 1. on 10 December 2016 the parties entered into an agreement for Mr Mason to conduct a termite inspection at Ms Hyland's home; 2. an inspection was carried out and live termites were identified; 3. Mr Mason recommended a sub-floor solution barrier with Termidor as soon as possible; 4. a chemical saturation was carried out on 14 December 2016; 5. a follow up inspection was carried out within 21 days as recommended by Mr Mason; 6. Ms Hyland paid $250.00 for the inspection and $3000.00 for the treatment; 7. the treatment came with a 10 year warranty; 8. in April 2017, the applicant contracted with a builder to rectify termite damaged timber. Upon inspection the builder identified current termite damages and additional termite infestation in the sub floor areas where the termite border was placed by Mr Mason. 1. Ms Hyland submitted that Mr Mason's services had not been performed in a proper and workmanlike manner, and that she then had to have her premises extensively treated to eradicate termites and to protect her premises from further infestation. The Tribunal was satisfied on the material before it that Ms Hyland had established grounds for orders for a refund of the costs incurred by her for the services carried out by Mr Mason and the building costs for the additional damages caused by the termites in the premises after the service was carried out. Nature of an appeal 1. An appeal is not a rehearing of the matter already decided. The appellant bears the onus of establishing error. In this respect, a party can appeal to the Appeal Panel as of right on a question of law: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2). If no error of law is identified, leave to appeal is required: s 80(2). Accordingly, the appellant needs to identify an error which is a question of law, or otherwise persuade the Tribunal that there is some other error requiring a grant of leave. 2. Mr Mason has not identified any error of law his Notice of Appeal. Where appellants are not legally represented, it is appropriate for the Appeal Panel to examine the notice of appeal: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. Mr Hyland says that he was not notified of the hearing. A hearing which proceeds in the absence of a party may constitute a denial of natural justice and a denial of procedural fairness. This would constitute an error of law. 3. We explained to Ms Whittaker and Ms Hyland that we perceived the fundamental issue to be whether the Tribunal erred in hearing and determining the proceedings in Mr Mason's absence. This in turn would involve an assessment of the evidence with respect to notice of the hearing and whether or not we accepted that Mr Mason had not received a notice of the hearing of 16 May 2018. 4. To consider this issue it is necessary to set out some of the procedural background leading up to the hearing. Background 1. Ms Hyland's application before the Tribunal was first listed for hearing on 27 April 2018. On that occasion, the hearing was adjourned on Mr Mason's application. The application for adjournment was in fact made by Ms Marie Anne Whittaker, who is the Manager of Mr Mason's business. She sent two emails to the Tribunal the day before the hearing. In the first, she said that Mr Mason was unable to attend due to illness. There was no medical certificate provided in support of this claim. In the second email, Ms Whittaker repeated that Mr Mason was unwell, and indicated that it would be difficult for her to attend as the hearing was during the school holidays and she had child care commitments. Furthermore, "Trent the termite technician is on leave". 2. A hearing was then held on 16 May 2018. Mr Mason did not attend the hearing. On the material before it, the Tribunal was satisfied that Ms Hyland was entitled to a refund of the cost of the services provided, and for the costs of damage caused by termites after Mr Mason's services were carried out. Brief written reasons were given for the decision, including that the material before the Tribunal included expert reports relied on by Ms Hyland. 3. We observe at this point that, the decision having been made in Mr Mason's absence, Mr Mason could have made an application to the Tribunal pursuant to reg 9 of the Tribunal's Regulations. That regulation provides that the Tribunal set aside an order 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. Mr Mason did not make such an application. 4. Rather, Mr Mason filed a notice of appeal and an application for a stay of the Tribunal Decision. The Notice of Appeal states that Mr Hyland did not receive notice of the hearing, and that his technician (Trent), who had been incarcerated at the time of the first hearing on 27 April 2018, was available for the hearing on 16 May 2018. Mr Mason says that he suffered a great miscarriage of justice by not being able to show the Tribunal that the termite treatment did not fail. 5. The appeal was listed for directions on 4 June 2018. On that occasion, a stay was granted by consent, and both parties were directed to file all the evidence which had been presented to the Tribunal at first instance, any fresh evidence, submissions, the sound recording of the hearing below and a typed transcript of the relevant parts. In the case of Mr Mason, he was also directed to file a statutory declaration setting out when he became aware of the hearing on 16 May 2018 and why he did not attend. Evidence at the appeal hearing 1. In support of the appeal, Mr Mason filed a statutory declaration as directed. The statutory declaration was dated 22 June 2018. In it Mr Mason declared: I had no knowledge of the tribunal hearing held on 16/5/18. No mail or email was sent to me. I have been unable to attend any hearings due to the exacerbation of COPD + Emphysima [sic]. I am awaiting 24/7 O2 and am unable to breath very well. 1. We are un-persuaded by this evidence. As Ms Whittaker told us, she answered all the mail and attended to all office duties. It would not be surprising if Mr Mason was not personally aware of whether a notice of hearing had been delivered at a particular time or not. In his Notice of Appeal, which is inconsistent with the account given by Ms Whittaker, he states, "I was not notified of the new hearing date until 2 days after the hearing occurred". Ms Whittaker told the Appeal Panel that she first became aware that the hearing had been held after she contacted the Tribunal Registry on or about 18 May 2018. Mr Mason's Notice of Appeal reads as if he had been notified by the Tribunal to this effect. That was not the case. It was Ms Whittaker who ascertained the date of the hearing. Based on Ms Whittaker's oral evidence, it was she who told Mr Mason about the Tribunal's order after she had contacted the Tribunal on or about 18 May. 2. Curiously, there is no record on the Tribunal file of the Registry having posted the order of 16 May 2018 to Mr Mason. Ms Whittaker told the Tribunal that she thought she received an email from the Tribunal Registry attaching the order. But there is no evidence of that email either on the file. 3. Mr Mason also relied on a statutory declaration of Ms Whittaker, also dated 22 June 2018. In her statutory declaration she states: I/We did not became awear [sic] of the new tribunal set for the 16/5/18 until the 18/5/18. It wasn't until I emailed + called the Tribunal on the 17+ 18 that I found out the hearing had been held. No mail or email was received at [XXXX] Schofields or the post box at Rouse Hill. 1. We asked Ms Whittaker a number of questions about this evidence and the notices of hearing for the hearing of 16 May. Ms Whittaker told us, and we find that: * the ASIC registered address for service for Mr Mason's business was a residential address in Riverstone; * the Riverstone address was Ms Whittaker's home, where she operated a "home office" for Mr Mason; * Ms Whittaker moved homes in November 2017. She arranged for the mail which was otherwise sent to her Riverstone address to be forwarded to her new address in Schofields; * Ms Whitaker first arranged for the mail to be redirected shortly before November 2017. She arranged for a further redirection six months later; * Mr Mason maintains a post office box for his business in Rouse Hill. As far as she is aware, Mr Mason still pays for this post office address for his business, but for some reason not known to her it is not functioning properly. Consideration 1. At the end of the day, this fundamentally is a matter of deciding whether or not we accept Mr Mason's explanation of what happened, as conveyed by Ms Whittaker: that is, that he never received the notice of the hearing. 2. We are not satisfied that on the balance of probabilities that he did not. We have come to this conclusion for the following reasons: * Mr Mason became aware of all other aspects of the hearings, applied for adjournments and received orders, but asserts that he did not receive the notice of the hearing, despite Ms Whittaker having arranged for all mail to be forwarded by the post office from her Riverstone address to her Schofields address; * there was no convincing reason why Ms Whittaker decided to contact the Tribunal on 18 May to find out what had happened. This appears to the Appeal Panel to be unpersuasively coincidental; * at all material times there was a mail redirection in place redirecting mail sent to Mr Mason's ASIC registered address for service (being Ms Whitakker's address in Riverstone) to Ms Whitaker's address in Schofields; * for the reasons stated above, we have placed little weight on Mr Mason's evidence; * we place limited weight on Ms Whitaker's evidence on the crucial issue, given the unconvincing nature of some of her evidence, including inconsistencies between what she told the Appeal Panel and what appears in her submission. The overwhelming majority of her evidence set out in her "submission" included in her appeal materials is hearsay and double hearsay. By way of example, Ms Whitaker states in her submission that, in relation to Ms Hyland's rear rooms "It was easily noticed that all bearers and joists had been affected by termites". But we were told that Ms Whitaker had never attended Ms Hyland's home. Thus, while the submission may be correct, proof of the fact of the termite damage could not be proved through Ms Whitaker, only the person who informed her of that fact, presumably Mr Mason or his son Trent. 1. Most importantly, we had before us the file for matter GEN 18/16351 which we discussed with the parties. The file shows that notices of the hearing of 16 May 2018 were sent to Mr Mason at the box office address in Rouse Hill and to Ms Whittaker's home at Riverstone. The notice of hearing sent to the post office box was returned to the Tribunal marked "returned to sender". However, the notice of hearing addressed to Mr Mason's business sent to the Riverstone address was not returned to the Tribunal marked "returned to sender". Accordingly, there was evidence before the Tribunal on which it could be satisfied that Mr Mason received the notice and was aware of the hearing. We so find. 2. In summary, we are not satisfied on the evidence before us that we should accept Ms Whittaker's version of events. As the Appeal Panel stated recently in Andy and Patrick Floor Covering Pty Ltd t/as Silver Trading Timber Floor v Li [2018] NSWCATAP 172at [40] (see also Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [18]): A court or tribunal is informed and persuaded only by the presentation of evidence. Evidence is material which tends to persuade the court or tribunal of the truth or probability of the facts being alleged. Evidence may be photograph[ic], documentary or testimonial. But it will only succeed in persuading the tribunal if it appears as being truthful, reliable and cogent. In civil cases the standard or proof depends on the balance (or preponderance) of probabilities. This simply means that a party must prove that their case is more likely than not to be true. If the scales tip in favour of the party, however slight, they have proved their case. But if the probabilities are equal, they have failed to prove their case. ... 1. The facts in this matter are similar to those in a recent decision of the Appeal Panel in Wholesale Auto City Pty Ltd v Jobson [2018] NSWCATAP 25. In that case, the Appeal Panel was also not satisfied that the appellant had not been properly served with notices issued by the Tribunal. 2. For the reasons given above, we are not satisfied that Mr Mason did not receive notice of the hearing on 16 May 2018. Conclusion 1. As we have noted, appeals from decisions made in the Consumer and Commercial Division of the Tribunal may be brought as of right on any question of law or any other grounds only with leave: NCAT Act, s 80(2). The effect of Mr Mason's Notice of Appeal is that he was denied procedural fairness. That is a question of law and the leave of the Appeal Panel is not required. 2. However, for the above reasons, we are of the view that that ground of appeal fails. 3. The Appeal Panel may grant leave to appeal in respect of other errors only if it is satisfied that a substantial miscarriage of justice may have been suffered because: * the decision of the Tribunal under appeal was not fair and equitable; or * the decision of the Tribunal under appeal was against the weight of evidence; or * significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. Even if, contrary to our finding, Mr Mason did not receive notice of the hearing, we do not think that the Decision made by the Tribunal would have been any different had Mr Mason (or someone on his behalf such as Ms Whittaker) been present at the hearing. The principal submissions advanced by Ms Whittaker as to why the outcome would be different were as follows: 2. First, the agreement between the parties did not include a ten year guarantee. Here we note that the document relied on by Ms Hyland includes (we were told, in Mr Mason's handwriting) the words "All work comes with 10 years warranty". Ms Whitaker submitted that this was not a term that formed part of any written contract, as this was noted on the Termite Inspection Report prepared by Mr Mason. Be that as it may, it was open to the Tribunal to have found that this representation formed part of the agreement between the parties. 3. Secondly, the only testimonial evidence before us was the evidence of Ms Whitaker in her "submission". As noted above, where that submission purports to be evidence, it is mostly hearsay, or even more remote. True it is, that this tribunal is not bound by the rules of evidence (NCAT Act, s 38(2)). Nevertheless, it is appropriate to recall the caution of Evatt J in R v The War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228. His Honour stated at 256: But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice". 1. As is observed by Aronson and Groves in Judicial Review of Administrative Action (5th Ed) at 581: Provisions which free a tribunal or other body from the rules of evidence are best regarded as facultative. They are intended to provide procedural flexibility but not to displace logic or reasons. A decision-maker freed from the rules of evidence must therefore still consider the whether the material it can consider should in fact be considered. The litmus test is usually whether the material is rationally probative. It follows that provisions which free tribunals from the rules of evidence do not allow decision-makers to "draw inferences or jump to conclusions, which the available material did not adequately support". 1. Based on the evidence before us, we are of the opinion that had Mr Mason been present on 26 September 2017 and put forward the arguments which he now puts to us, through Ms Whitaker, the Decision would have been the same. As to the suggestion that Trent Mason would be called to give evidence if there is another hearing, there was no evidence before us in the form of a statement or outline of evidence about what evidence he would actually give. 2. We are of the opinion that the Decision does not reveal that Mr Mason has suffered a substantial miscarriage of justice in the sense referred to in cl 12 of Sch 4 of the NCAT Act. 3. Therefore, we make the orders set out below. Orders 1. The Appeal Panel makes the following orders: 1. The appeal is dismissed. 2. The order made on 4 June 2018 staying the operation of the order made on 16 May 2018 is lifted. ********** 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: 31 August 2018