C Mares v M R Kirsten [2018] NSWCATAP 306

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: C Mares v M R Kirsten [2018] NSWCATAP 306 Hearing dates: 14 November 2018 Date of orders: 19 December 2018 Decision date: 19 December 2018 Jurisdiction: Appeal Panel Before: R L Hamilton S.C., Senior Member S Thode, Senior Member Decision: 1. The appeal is dismissed 2. The stay is lifted and the Registrar may pay the amount of $10,481.28 to Mr Kirsten. Catchwords: APPEALS- interlocutory matter-leave questions-error of law- proceeding in absence of party Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: N/a Category: Principal judgment Parties: C Mares – Appellant M R Kirsten - Respondent Representation: Counsel: Both parties self-represented

Solicitors: File Number(s): AP18/39625 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 14 August 2018 Before: C Marzilli, General Member File Number(s): HB 18/18003

Reasons for decision 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 against a decision made in the Consumer and Commercial Division of the Tribunal. The hearing below was held on 14 August 2018. The appellant here asked for the hearing to be adjourned but this was refused. He did not attend the hearing, and did not file any evidence before the hearing despite being directed to do so. The appellant was ordered to pay $9996 to the respondent. 2. The appellant had two appeal grounds which he argued were errors of law. The issues are: 1. Was it an error of law to refuse the appellant an adjournment of the hearing below? 2. Was it an error of law to hear the matter without the appellant's evidence? 1. It is noted that leave is not sought to appeal on the merits. The appeal grounds were drafted by the appellant's then solicitor. The grounds of appeal are stated as follows: 1. The Appellant was denied procedural fairness by not being served with any documents of which the Respondent relied upon at the Hearing on 14 August 2018. 2. The Appellant was denied procedural fairness by not being able to attend the Hearing. 1. The appellant's claim concerning the adjournment is an "interlocutory decision" (definition in s. 4 Civil and Administrative Tribunal Act 2013 (CAT Act)) for which leave is required to appeal (s.80(2)(a) CAT Act) and we have permitted the appellant to seek leave at the hearing. 2. In the Tribunal directions were given on 24 May 2018 clearly specifying the evidence to be filed and a timetable for filing. 3. Mr Kirsten (the builder) was due to file evidence by 7 June 2018. Mr Mares (the home owner) was due to file his evidence on 20 July 2018. 4. Mr Mares wrote at 4.19pm on 7 June 2018 by email to the Tribunal quoting some of the order of 24 May 2018 saying that nothing had been received by him by way of evidence from Mr Kirsten, and sought dismissal. 5. In a later affidavit (sworn 15 October 2018) Mr Mares stated (para 18) that he went to the NCAT Registry at Penrith on that day to inspect the order of 24 May 2018 stating that he had not previously seen that order. He does not explain how he knew about the timetable for the filing of Mr Kirsten's evidence and was able to complain when that evidence had not been provided by the original due date, if he did not know the contents of the Tribunal's direction of 24 May 2018. Taking a benevolent view, perhaps Mr Mares neglected to check on his paper work and memory before he swore his affidavit. 6. On 21 June 2018 Mr Kirsten sought an extension of time from the Tribunal to file and serve his evidence providing an explanation involving illness. That application was opposed by Mr Mares. Mr Mares stated that he had received the Registry correspondence. The Tribunal granted an extension of time for Mr Kirsten to file his evidence until 3 July 2018. 7. On 4 July 2018 Mr Kirsten filed his evidence with the Tribunal. The Appeal Panel was taken to a copy of the Tribunal's receipt, which also contains a statement signed by Mr Kirsten confirming that he had served the evidence on Mr Mares. 8. The matter was listed for hearing on 14 August 2018 and the parties were advised on 9 July 2018. 9. Mr Kirsten provided evidence to the Appeal Panel that he served his evidence by mail and email on 4 July 2018 and personally on 18 July 2018 by placing a copy of that evidence in Mr Mares' letterbox at his home. 10. Mr Mares maintained that he never received Mr Kirsten's evidence by any of the three paths (email, mail or personal service) until about 2 weeks before this appeal hearing. Mr Kirsten pointed out the anomalous nature of this claim as correspondence from the Tribunal sent to Mr Mares at the same address as that used by Mr Kirsten seemed to have reached him. We therefore regard Mr Mares claims of non-receipt of documents with a degree of scepticism. 11. Mr Mares did not comply with the timetable for filing and serving his evidence by 20 July 2018. He did not file or serve evidence in accordance with directions made on 24 May 2018 at any time before the hearing of the matter on 14 August 2018. 12. On 31 July 2018 Mr Mares emailed the Tribunal seeking an adjournment of the hearing date as he was going overseas. He left for Canada on 6 August 2018. Mr Mares did not supply any supporting evidence for his request. His request was refused. He was advised by the Tribunal to provide evidence to support his request and referred to Guidelines on 'Adjournments' available on line on 2 August 2018. 13. On 2 August 2018 Mr Mares sent an email saying he was happy to provide documents, but did not do so. 14. On 9 August 2018 he made a third approach seeking adjournment but still did not provide evidence. 15. Crucially, in none of the three requests for adjournment of the hearing date did Mr Mares make any mention of his claim that he had not been served with Mr Kirsten's evidence. Nor did he say anything relating to his own failure to file and serve evidence by 20 July 2018 in accordance with the Tribunal's direction of 24 May 2018 as extended. 16. At the hearing the Tribunal specifically found that Mr Mares had received notice of the hearing (see paragraph 2 of the decision) and refused the adjournment due to the absence of evidence in support, failure to explain why someone else could not represent him, and disadvantage to Mr Kirsten who was present and ready (para 1). 17. The Tribunal then proceeded to examine Mr Kirsten's evidence (as detailed in paragraph 8 of the Tribunal's decision) and decided the matter in Mr Kirsten's favour on a quantum meruit basis. 18. As mentioned previously, the decision of the Tribunal to refuse the adjournment is an interlocutory decision; and Mr Mares requires leave to appeal the refusal decision (s.80(2)(a) CAT Act). 19. In Donna O'Neil v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [20] to [23], the Appeal Panel made the following remarks in regard to the principles applicable to adjournment applications: "20 In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, a unanimous High Court said: "In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice." 21 That approach is applicable in this Tribunal. Section 36(1) of the Civil and Administrative Tribunal Act 2013 ('the Act') is in relevantly identical terms to s 56(1) of the Civil Procedure Act2005, the provision considered in the Expense Reduction decision. 22 It follows that a number of principles apply to applications for an adjournment: (1) matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, (2) an application for an adjournment should be seen as the exceptional rather than the ordinary course; (3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment 23 Further, there is the effect on the opposing party to consider. In Sayhoun v Owners Corporation Strata Plan 75123 [2014] NSWCATAP 112, an Appeal panel of this Tribunal said at [17], in terms we would adopt: "We are satisfied that the respondent would be prejudiced if an extension of time were granted. That prejudice may be addressed by an award of costs, although we note the remarks of the plurality in Aon Risk Services Aust Pty Ltd v Australian National University[2009] HCA 27; (2009) 239 CLR 175 at [100] that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants; and their approval (also at [100]) of Bowen LJ's statement in Cropper v Smith [1884] 26 Ch D 700 that: Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary." 1. We adopt the principles set out above. It is plain from its decision that the Tribunal considered the application for adjournment extensively and took into account that the appellant had provided no reasonable explanation for his non-attendance and the Tribunal considered the effect of the adjournment on the opposing party. In considering whether to grant leave to appeal the interlocutory decision about the adjournment the Appeal Panel must also take into account the various matters set out in paras 82 to 84 of the Appeal Panel decision in Collins v Urban [2014] NSWCATAP 17. We must exercise restraint in interfering, and act only if there is a reasonably clear injustice. These seem the only matters presently relevant. 2. Mr Mares was advised of the hearing date well in advance. He did not put on his own evidence by the due date or seek an extension of time. He knew of the timetable. He did not raise any complaint that Mr Kirsten had not served his evidence by the date as extended. He sought an adjournment 6 days before he was due to travel overseas. That adjournment was not granted and he was advised he needed to provide evidence to support his adjournment application. He did not provide such evidence. Nor did he provide the Appeal Panel with any evidence which would assist us in evaluating the merits of the case that he would have put to the Tribunal if he had appeared at the hearing. 3. In these circumstances we do not consider that leave should be granted to appeal the Tribunal decision to refuse the adjournment. We find that there was no substantial miscarriage of justice and that leave to appeal should not be granted. 4. Similarly we do not consider there has been an error of law for the Tribunal to have proceeded with the hearing in the absence of Mr Mares. He had been given notice of the hearing date. The appellant went overseas knowing of the date of the hearing without being granted an adjournment. He had been told what to do to support an adjournment request. He had ample opportunity to put on his own evidence but did not do so. Mr Kirsten's evidence had been properly served on Mr Mares by posting it to his last known place of address (CAT Rule 13(2)). Mr Mares did not complain about not receiving Mr Kirsten's evidence by the extended date until after the hearing below. He did not put forward the case he would otherwise have argued. 5. Having regard to these findings we are not of the view that the appellant has established an error of law. Accordingly, we have decided to dismiss the appeal. 6. The decision below was stayed on condition that Mr Mares paid the amount of $10,481.28 to the Tribunal in trust pending the outcome of the appeal. As the appeal is dismissed, we order that the stay be lifted, and the Registrar may pay the amount of $10,481.28 to Mr Kirsten. 7. ORDERS 1. 1. The appeal is dismissed 2. 2. The stay is lifted and the Registrar may pay the amount of $10,481.28 to Mr Kirsten.