AJ Bignell Pty Ltd v SG Edenden t/a Everdry Waterproofing and Coatings and 4 ors

[2004] NSWSC 27

CITATION:	AJ Bignell Pty Ltd v SG Edenden t/a Everdry Waterproofing and Coatings and 4 ors [2004] NSWSC 27
HEARING DATE(S):	05/02/04
JUDGMENT DATE:	18 March 2004
JURISDICTION:	Administrative Law List
JUDGMENT OF:	Shaw J at 1
DECISION:	1) No error of law; 2 Appeal Dismissed; 3) Plaintiff to pay the defendants' costs of the appeal
CATCHWORDS:	Error of law - Fair Trading Tribunal - Consumer Trader and Tenancy Tribunal Act 2001 (NSW)
LEGISLATION CITED:	Consumer Trader and Tenancy Tribunal Act 2001 (NSW), s67
CASES CITED:	AJ Bignell Pty Ltd v Stephen Gary Edenden & Paula Anne Edenden t/a Everdry Waterproofing and Coatings, Ison & Co Pty Ltd, Dunmore Sand & Soil Pty Ltd, 30 March 2002, CTTT; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Bignell P/L v Edenden t/as Everdry Waterproofing [2003] NSWSC 77; Janos Hoey v Consumer Trader & Tenancy Tribunal & Anor [2002] NSWSC 1023; The Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126
PARTIES :	AJ Bignell - Appellant/Plaintiff SG Edenden t/as Everdry Waterproofing & Coatings - 1st Respondent/Defendant PA Edenden t/as Everdry Waterproofing & Coatings - 2nd Respondent/Defendant Dunmore Sand & Soil Pty Ltd - 4th Respondent/Defendant Consumer Trader, and Tenancy Tribunal - 5th Respondent/Defendant
FILE NUMBER(S):	SC 30042/2002
COUNSEL:	M. Tzannes - Appellant/Plaintiff T. Bland - 1st & 2nd Respondent/Defendant M. Lee - 4th Respondent/Defendant
SOLICITORS:	Atkins Jones - Appellant/Plaintiff Lindsay Brien - 1st & 2nd Respondent/Defendant Marsden Law Group - 4th Respondent/Defendant

LOWER COURTJURISDICTION:	Fair Trading Tribunal
LOWER COURT FILE NUMBER(S):	00/78406
LOWER COURT JUDICIAL OFFICER :	Member Mallam

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Shaw J

18 March 2004

30042 of 2002


A J Bignell Pty Ltd (Appellant/Plaintiff)
v

S G Edenden t/a Everdry Waterproofing and Coatings (First Respondent/Defendant)

P A Edendend t/a Everdry Waterproofing and Coatings (Second Respondent/Defendant)

Ison & Co Pty Ltd (Third Respondent/Defendant)

Dunmore Sand and Soil Pty Ltd (Fourth Respondent/Defendant)

Consumer Trader, and Tenancy Tribunal (Fifth Respondent/Defendant)

JUDGMENT

1 Shaw J: By its second amended summons filed on 30 April 2003 in the Administrative Law List of this Court, the plaintiff, A J Bignell Pty Ltd, claims that an order made by Member Mallam, of what was then described as the Fair Trading Tribunal, on 30 March 2002, should be set aside on the basis that there was an error of law. The plaintiff also claims orders that the first or the fourth defendant pay rectification costs associated with the claim before that Tribunal and, in the alternative, an order should be made by this Court that the matter be remitted to the Tribunal for rehearing. There is also a claim for the costs of these proceedings.

2 By judgment of 24 February 2003 Master Harrison dealt with certain interlocutory matters arising from the proceedings pointing out that, at least as initially framed, the proceedings did not appear to articulate findings of fact which were not reasonably open to the Tribunal member, that the proceedings sought to re-litigate findings of fact made by the Tribunal member, and that there was no place for judicial review because of the absence of a demonstrable error of law. However, in relation to one ground of appeal, the learned Master felt that the position was different: Bignell P/L v Edenden t/as Everdry Waterproofing [2003] NSWSC 77. She said at [16]:

The fifth ground of appeal in the amended appeal is in a different category. The plaintiff submitted that in coming to the conclusion that there were no issues between the plaintiff and the first defendant the Tribunal Member failed to consider firstly, that the parties were originally jointly represented as the plaintiff was in agreement with the first defendant as to the cause of the defective render; secondly, when a subsequent cause of the defective render was alleged by the third defendant, the plaintiff believed there would be a conflict if joint representation continued; thirdly, on the second day of hearing, the Tribunal Member was expressly advised by both the plaintiff’s and first defendant’s legal representatives that each party would retain their own and separate legal representation; and fourthly, the Tribunal Member failed to consider advice from the parties’ legal representatives that the parties were separately represented due to the conflict of interest. The plaintiff’s affidavit evidence establishes that on the first day of the hearing, Counsel Mr Wilson who was jointly representing Bignell and Everdry, found himself in a position of a conflict of interest when it became apparent that Dunmore was alleging that the materials used by Everdry were the cause of the pop-outs. At the second day of the hearing, the plaintiff and first respondent were separately represented.

3 It seems that by the second day of the hearing the Everdry and Dunmore were separately represented. In accordance with this reasoning, the Master granted leave to file and Amended Notice of Appeal and Summons being restricted to this fifth ground, which I have identified. Thus it seems that the Second Amended Summons was filed in accordance with the judgment of the Master.

4 The factual matrix from which the present controversy arises, began with the building of a sixteen unit development, the rendering of that premises and the allegation that the render was failing and becoming unsightly. Thus, the claim was made that there was faulty workmanship and that the issue was agitated before the primary tribunal. It was apparently alleged that the cause of the failure of the render was pyrites in the sand supplied by the fourth defendant, Dunmore Sand and Soil. Because of those allegations it was apparently perceived that there was no conflict of interest between the first and second defendants, Everdry, and the fourth defendant, Dunmore, and thus one solicitor was retained for both of those parties.

5 However, once the proceedings had been commenced, expert witness for Dunmore, asserted that the cause of the failure was not the pyrites in the sand but rather the method by which the render was mixed and applied by the first defendant. Hence, the view was taken, correctly in my opinion, that separate legal representation was required for the Dunmore and Everdry, and on the second day of the hearing before the tribunal a different firm of solicitors represented the first defendant.

6 There is an appeal to this Court only from an error of law made by the tribunal. This Court cannot review factual findings. However, the plaintiff contends that an error of law did occur in that Member Mallam found that “there is no issue between the parties” and that therefore the tribunal misdirected itself in declining to make any findings of causation of the failure to render by the first defendant: AJ Bignell Pty Ltd v Stephen Gary Edenden & Paula Anne Edenden t/a Everdry Waterproofing and Coatings, Ison & Co Pty Ltd, Dunmore Sand & Soil Pty Ltd, 30 March 2002, CTTT at [42]. The submission that this finding was contrary to the evidence is unpersuasive, however, the question remains as to whether it was an error of law.

7 The plaintiff contends that the erroneous finding that there were no issues between the parties, and that therefore the tribunal did not have to make a finding as to whether the failure of the render was caused by the actions of the first defendant, or whether it was due to some other cause, led to what has been described in the submissions as a “further” error of law. It is said that the failure to take into account that there were in fact issues between the parties which required separate representation on the second and further days of the hearing meant that issues have remained undetermined, namely whether, the render had failed because the first respondent had “bridged the damp course.”

8 Some of these considerations come perilously close to factual findings, but the question remains as to whether an error of law is discernible in the proceedings at first instance.

9 The defendants contend that it was open to the tribunal to make a finding of fact that there was “no issue” between the parties as to the cause of the pop outs. Certainly, as has been contended, an administrative tribunal is entitled to draw inferences of fact. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Mason CJ said at 356:

So long as there is some basis for an inference – in other words, the particular inferences reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

10 Section 67 of the Consumer, Trader & Tenancy Tribunal Act 2001 confines an appeal to this Court to a decision of a question with respect to a matter of law. The onus is on the plaintiff to establish the existence of this error: Janos Hoey v Consumer Trader & Tenancy Tribunal & Anor [2002] NSWSC 1023 at [18].

11 The classic delineation between questions of law and questions of fact in the New South Wales jurisdiction was articulated by Sir Frederick Jordan when he was Chief Justice of this Court in Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 at 138, whereas his Honour said:

A finding of fact by a tribunal of that cannot be disturbed if the facts inferred by the tribunal upon which the finding is based are capable of supporting its finding, and there is evidence capable of supporting its inferences …… such a finding can be disturbed only (a) if there is no evidence to support its inferences or (b) if the fact inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences.

12 In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Kirby P (dissenting) at 151 discussed what type of error constitutes an error of law:

The finding of what have been called the primary facts of a case does not, in itself; expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge's fact finding has involved an error of law. If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another. This is his function… Where the evidence points only in one direction, and, as in Poricanin the trial judge nonetheless states that he disbelieves it, the onus being upon that person, the court, on appeal, may not intervene.

13 Applying these principles, I am unable to accept the submission that because, it is alleged, that the first defendant failed to properly combine ingredients, or because they bridged the damp course and that there was a defect in one of the products, that there was therefore some error of law on the part of the tribunal. The tribunal concluded that these alleged errors were not the cause of the defect and consequently dismissed plaintiff’s claim. If there was error in this process of reasoning, then it seems to me it was factual rather than legal.

14 The appeal is dismissed. The plaintiff is to pay the defendants’ costs of the appeal.

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Last Modified: 03/23/2004