Buckett v Consumer Claims Tribunal

[2001] NSWSC 256

CITATION:	BUCKETT v CONSUMER CLAIMS TRIBUNAL & ORS [2001] NSWSC 256
CURRENT JURISDICTION:	Administrative Law Division
FILE NUMBER(S):	SC 30009/99
HEARING DATE(S):	8 August 2000 3 November 2000
JUDGMENT DATE:	10 April 2001
PARTIES :	Lionel Clarence Austin Buckett (Plaintiff) v The Consumer Claims Tribunal (First Defendant) John Szymanowicz (Second Defendant) Sonia Harris (Third Defendant) Minister for Fair Trading (Fourth Defendant/Intervenor)
JUDGMENT OF:	Adams J at 1

LOWER COURT JURISDICTION :	Consumer Claims Tribunal
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

COUNSEL :	Mr B Oslington QC with Ms A Mountfort (Plaintiff) Mr D Stack (Fourth Defendant/Intrervenor)
SOLICITORS:	Roderick Storie (Plaintiff) I V Knight (Fourth Defendant/(Intervenor)
CATCHWORDS:	Consumer Claims Tribunal - nature of jurisdiction - duty of referee to conciliate - refusal of adjournment - whether breach of natural justice - prior determination quashed by Supreme Court - whether Tribunal functus officio - whether fresh Tribunal can determine original claim - when claim form is lodged - removed to add particulars and returned - does not affect date of lodgment - amendments to claim made out of time - whether permissible - whether formal order making amendments is necessary
LEGISLATION CITED:	Consumer Claims Tribunal Act 1987 Consumer Claims Act 1998
CASES CITED:	Cameron v Cole 1943-44 68 CLR 571 Crane v Director of Public Prosecutions (1921) 2 AC 299 Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 Archcom Pty Limited v Consumer Claims Tribunal (unreported, NSWSC 29 September 1995) Smith v Consumer Claims Tribunal & others (unreported, NSWSC 8 April 1998) Jones v Dunkel (1959) 101 CLR 298 ANZ Group Limited v Larcos 1987 13 NSWLR 286 Fintron Pty Limited v The Registrar, Consumer Claims Tribunal & Ors (unreported, NSWSC 16 December 1997)
DECISION:	Summons is dismissed with costs.

ADAMS J

TUESDAY 10 APRIL 2001

30009/99

BUCKETT v CONSUMER CLAIMS TRIBUNAL

JUDGMENT

1    HIS HONOUR: This is an application for relief in respect of proceedings in the Consumer Claims Tribunal taken against the plaintiff.

2    In 1993 and 1994 the plaintiff was a self-employed licensed builder carrying on business under the name of Timber Slab Cottages. In July 1993 he entered into a building contract with the second and third defendants (“the owners”) to construct a timber dwelling to lock-up stage on land at Kurrajong. Building commenced in September 1993 and in March 1994 the plaintiff issued a notice of practical completion, claiming that the works were completed except for some minor omissions and defects which, he claimed, did not prevent the house from being reasonably fit for occupation or use by the owners, in accordance with clause 21 of the contract. The contract provided that when this point was reached the plaintiff was entitled to receive the unpaid balance of the contract sum together with any other amounts which may have been payable (for example, under variations to the contract). As is usual in such contracts, a defects liability period was provided for, prior to the expiration of which the owners were required to provide to the builder a written list of any defects or faults arising out of workmanship or materials not in accordance with the contract and that the builder should make good any such defects or faults at his own cost and within a reasonable time. If the builder failed to do so, the owners were entitled to engage others to make the defects or faults good and recover the cost from the builder. The contract also provided for disputes and differences to be referred to arbitration.

3    Regrettably, there was a dispute between the plaintiff and the owners and, in May 1994, the plaintiff served a notice of dispute as a preliminary to submission of the issues between them to arbitration. Some weeks later, the owners exercised their rights under clause 24 of the building contract to determine the builder’s employment for failing to rectify certain defective work and stating that the claim would be heard by the Building Disputes Tribunal. Although a claim form had been lodged with the Consumer Claims Tribunal on 11 April 1994 under the Consumer Claims Tribunal Act 1987 (“the Act”), it was not served until 30 May 1994. At some time after 11 April 1994 it appears that the claim form was uplifted by the owners and particulars inserted and that it may not have been returned until after the arbitration proceedings were commenced by the plaintiff.

4    The Consumer Claims Tribunal Act 1987 was repealed by the Consumer ClaimsAct 1998. Having regard to the transitional provisions in Schedule 1 to that Act, however, the repeal has no present significance.

5    On 11 May 1994, the plaintiff wrote to the Master Builders’ Association requesting the Association to nominate an arbitrator for the purpose of hearing the dispute between him and the owners, the day after he had been informed that a claim had been lodged by them with the Tribunal. On 26 May 1994, he was informed of the appointment of an arbitrator. There is a dispute in this case as to whether the issues arising under the claim were the subject of “pending” arbitration proceedings at the time of lodgment of the claim. If they were, the effect of s 13(3) of the Act is that the Tribunal’s jurisdiction to hear and determine those issues ceases.

6    In due course the Tribunal, comprising a referee, heard the dispute and made a determination on 22 August 1994. Proceedings were then taken in the Supreme Court by the plaintiff claiming that the Tribunal had no jurisdiction to make the determination and, in addition, that the plaintiff had been denied natural justice. A number of alleged defects in the proceedings were relied on. On 4 May 1998 Bruce J determined that the proceedings before the referee were affected by a denial of natural justice comprising, in essence, permitting representatives of the Building Services Corporation to be present and to cross-examine the plaintiff contrary to the provisions of s 22 of the Act requiring hearings to be conducted in private. His Honour ordered that the determinations both in favour of the plaintiff and against him should be quashed but made no order as to a re-hearing.

7    In 1998, the Tribunal, comprising a different referee, commenced a re-hearing of the claim. It is submitted by the plaintiff that it had no jurisdiction to do so as the Tribunal was functus officio in the sense that, as I understand the submission, the Tribunal’s jurisdiction to determine the application was exhausted by its conducting a hearing and making its determinations even though those determinations were later quashed.

8    As I have said, Bruce J considered that, by contravening s 22 of the Act, the Tribunal denied the plaintiff natural justice. There is some question in my mind whether this was so, but I am bound by his Honour’s judgment (in the circumstances here) and, at all events, it was not sought to argue that the Tribunal was not bound by the rules of natural justice as a condition of the exercise of its jurisdiction under the Act and had acted in denial of natural justice in this particular case. The distinction may not matter since, in my opinion, the requirements of s 22 of the Act are mandatory and essential to the exercise by the Tribunal of its jurisdiction to hear and determine a claim.

9    Even if the determination of the Tribunal was not void ab initio but remained valid and operative until challenged and set aside by Bruce J, becoming invalid ab initio only at that time (which I doubt), this could not conclude the matter in the plaintiff’s favour. To use the language of Rich J in Cameron v Cole 1943-44 68 CLR 571 at 589 (citing Crane v Director ofPublic Prosecutions (1921) 2 AC 299 at 332), “The setting aside of the valid determination lays the ghost of the simulacrum of a trial and leaves the field open for a real trial”. It matters not whether, in that case, the statutory tribunal which acted outside its jurisdiction had the jurisdiction to set aside the invalid determination itself or, as here, the determination was quashed by order of a superior court: Macksville & DistrictHospital v Mayze (1987) 10 NSWLR 708 at 729 per Mahoney JA). Once the determination is quashed, the Tribunal can proceed to hear and determine the original claim. It is not necessary to recommence proceedings.

10    Accordingly, in my view, the Tribunal had jurisdiction to consider the original complaint providing that it was lodged before the arbitration proceedings were commenced. It is necessary to return to the sequence of events surrounding the lodgment of the claim form by the owners.

11    Section 13 of the Act requires a consumer who wishes to have a claim heard and determined by the Tribunal to lodge with the Registrar a claim in the prescribed form together with the prescribed fee. The prescribed form required the claimant to “give full details of faulty or incomplete work”. As lodged, the details of claim which were provided were as follows -

“Unfinished work
Not rectifying faulty work
Overcharging
Not following plans”

12    It is not disputed that the prescribed fee was paid on 11 April 1994. It also appears that the claim form was returned after lodgment to the owners in order to provide the particulars which were required. It was not sought to be argued (nor could it be) that the details as originally provided could be regarded as “full”. The particulars added were as follows -

“Double charge on Floor joist $800 Both items are on drawing and are included in contract price
Extra charge AC sheet $975
Interest claim by builder $418.18 to date
Cancellation of fireplace $680.00
Faulty footing to fireplace $770.00
Credit for short balcony
should be 9 metres Built
8.5 metres $500.00
Credit to variation invoice
No 567 $195.00
Builders time for variation
invoice No 567 $ 40.00
Costs of repairs which will be surveyed
by a qualified building surveyor, as well as any
completion work which has not been carried out by builder
Approx $20,000
We claim $200.00 a week from 28/2/94 for compensation.
For rent, overdue on completion date
Rectification order attached to this list
Cost of these repairs.”

13    As the plaintiff concedes, there is no direct evidence establishing when the claim form was returned to the Tribunal. The plaintiff submits that the true date of lodgment for the purposes of the Act is the date of return, whatever it was, and not the date when it was first produced (to use a neutral term) to the Registry and the fee paid. The complete form was ultimately served by the Registry of the Tribunal on the plaintiff under cover of a letter dated 30 May 1994 and, in another letter of the same date addressed to the owners, the Registrar referred to a claim having a file reference number lodged with the Tribunal. Although the plaintiff submits that I should infer that the application was returned to the Registry on or shortly before 30 May 1994 it seems obvious that the mere fact that a copy of the form was sent out to the plaintiff on that date cannot establish when it came back into the custody of the Tribunal.

14    I have already mentioned that on 3 May 1994 the plaintiff had served on the owners a notice of dispute which was to the effect that the dispute would be submitted to arbitration in accordance with the contract and that notice of appointment of the arbitrator was given on 26 May 1994. I do not consider that any proceedings could be “pending” before an arbitrator before appointment of the arbitrator. If it were necessary to make a decision as to whether the claim was returned to the Tribunal before the arbitrator was appointed, my scepticism about bureaucratic efficiency would lead me to the tentative conclusion that the former event was also the prior event. However, it is not necessary to speculate about this matter since I am satisfied that, even though the claim form required the addition of particulars and for that purpose was removed temporarily from the Tribunal’s custody, for the purposes of s 11(2) of the Act it was lodged on 11 April 1994.

15    In Archcom Pty Limited v Consumer Claims Tribunal (unreported, NSWSC 29 September 1995) Simpson J said -

“At the outset it is worth recalling that the Act had set up a system for the speedy and inexpensive disposal of certain claims, limited in amount, arising out of contracts for the supply of goods or the provision of services ...”

16    In Smith v Consumer Claims Tribunal and others (unreported, NSWSC 8 April 1998) Newman J (citing with approval the above observation) observed that “the scheme of the...Act is one of informality and is designed to create an inexpensive form of justice”. The mere fact that the claim form did not contain certain prescribed particulars does not mean, in my opinion, that the claim had not been lodged for the purposes of s 11. The added particulars all clearly fell within the original categories of claim specified in the form. Once arguments as to the adequacy of the claim form are introduced, the certainty and simplicity of relying upon the date of lodgment for jurisdictional purposes is unnecessarily and inconveniently qualified by the requirement to inquire as to whether the prescribed details have been adequately provided, which will always be a matter of fact and degree. If those charged with administering the Tribunal perceived an error or omission in the form, the mere fact that it was administratively convenient to permit its removal, correction and return does not, to my mind, create a requirement to determine the date of return, at least for the purposes of s 11(2) of the Act. (However, good administrative practice obviously makes it desirable to record the movement of documents, especially when they are removed and returned.) Moreover, I note that the plaintiff’s application for arbitration specified no particulars of the dispute. Insofar as the “issues” raised by the claim in its original form was concerned, therefore, the arbitration covered the same ground. The need to consider such niceties is at odds with the evident legislative intention to avoid complexity which sacrifices substance to form.

17    At all events, in this case the plaintiff bore the onus of establishing that the Tribunal’s jurisdiction was ousted by the pendency of arbitration proceedings. In the circumstances, in respect of the date of the return of the completed claim form to the Registry, the plaintiff is entitled to the inference, following from the rule in Jones v Dunkel (1959) 101 CLR 298, that the evidence of the owner who lodged and returned or arranged for the return of the form would not have assisted the defendant Minister. However, even with this inference taken into account the evidence would still not justify to my mind the conclusion that the form was returned after the appointment of the arbitrator.

18    The plaintiff also claims that the determination of the Tribunal was without jurisdiction by virtue of s 10(3) of the Act which excludes jurisdiction in respect of a consumer claim relating to goods or services supplied more than three years before the date on which the claim was lodged.

19    I have set out above the details of the claim as particularised when the form was returned to the Registry. On 6 July 1998 a registrar of the Tribunal ordered the owners to issue a written statement detailing the orders sought by them and particularising the matters they relied upon. On 20 July 1998 the owners itemised the relief sought by them as follows -

“(a) Relief of payment of a double charge for A C sheeting.
(b) Relief on payment of invoice 527 for thicker stair treads.
(c) Relief of payment for failing to supply grey ironbark flooring.
(d) Relief of payment of interest claimed by the builder.
(e) Relief of payment for failing to construct a fireplace.
(f) Relief of payment for construction of a balcony shorter than specified.
(g) Relief of payment for variation to invoice 567.
(h) Relief of payment for variation invoice 567.
(i) Relief from payment for use of non-kiln dried floor joists.
(j) Relief of payment of invoice 527.
(k) Relief of payment in respect of new front door and fittings.
(l) Relief from payment on invoice 527.
(m) Damages for loss of rent due to late completion.
(n) Damages for loss of rent due to rebuilding of the house.”

This letter also specified experts reports, described as “available” but obviously, in the context, in the sense that it was proposed to rely on them at any hearing.

20    On 12 August 1998 the owners wrote to the Tribunal requesting that their claim be amended to increase the amount sought in respect of the non-kiln dried floor joists and provided detailed particulars of how the additional sum was calculated.

21    The plaintiff submitted that there was no jurisdiction in the Tribunal to determine the claim as amended since at no stage did it actually “make such amendments to the claim” (emphasis mine) under s 19 of the Act which gives the Tribunal a power to amend a consumer claim.

22    When the plaintiff took the point before the Tribunal that the amendments comprised, in effect, a new claim and hence that the Tribunal had no jurisdiction to hear it by virtue of the time limit, the referee responded as follows -

“Submissions were put that the Claim as amended is in effect a new claim, and thus it is barred. The general rule is that amendments of pleadings speak from the date of the document being amended. Although claim forms are scarcely pleadings, I consider that the same rule applies. Similarly, a pleading can be amended so as to bear little relationship to the original beyond the title of the document, but still be treated as an original. I do not consider that this ground has been made out.”

23    The ruling presupposed actual amendment. Following the hearing, the referee made a determination and gave brief reasons for it. Those reasons noted that amendments had been made to the original claim, that copies of those amendments were given to the respondent and then dealt with each of the amended claims. Although the observation in the penultimate sentence of the passage cited above somewhat overstates the case, I consider that, in substance, the Tribunal did exercise its powers of amendment under s 19 of the Act although there was no independent order in that behalf. Section 19 does not require the making of separate orders for amendments or, for that matter, any particular formalities. However, it will usually be useful for the Tribunal to state specifically that it has made particular amendments to the claim in order to avoid possible controversy about the matter.

24    It is further submitted by the plaintiff that, in respect of the amendments itemised on 20 July 1998, those identified above as (b), (h) and (i) were not part of the original claim and hence did not constitute amendments but rather, new claims. Having regard to the generality of the particulars in the original claim form this submission cannot succeed. There is no doubt that the additional matters arose out of the identified building contract and the failure to supply goods and services in accordance with it. In so far as they raised new matters, after the expiration of the time limit, the making of the amendments dates back to the lodgment of the claim. The well-known principle was succinctly stated in Baldry v Jackson (1976) 2 NSWLR 415 by Samuels JA (at 419): “But an amendment duly made, takes effect, not from the date when the amendment is made but from the date of the original document which it amends ...”; see also ANZ Group Limited v Larcos (1987) 13 NSWLR 286 at 289.

25    On 16 November 1998, the referee conducted a directions hearing to deal with procedural matters prior to the impending hearing due to commence on 23 November 1998. One of the owners (who conducted the case on behalf of both) informed the referee that they would be relying on the reports “which are listed in [the] claim”, which I take to be a reference to the letter dated 20 July 1998 also containing particulars, to which I have already adverted. The owner identified to the referee the reports of a Mr Taylor, a Mr Passfield, the Hawkesbury Council, Bennett Real Estate, a Mr Harrington and a Mr Jamieson, a Mr Roberts and a Mr Beckett. The referee asked whether the plaintiff had copies of the material and the owner responded that he should have had a copy of them but he was uncertain about the CSIRO and the Beckett reports. The plaintiff, at the referee’s request, was shown the owner’s folder of documents to determine whether he had previously received copies of the same material. The owner conceded that the plaintiff would not have had the statutory declarations annexing the reports. These were not substantive documents, merely identifying and verifying the reports. The referee asked the owner to provide copies of the documents upon which he proposed to rely to the plaintiff “in the next couple of days”, adding “otherwise we are going to have to take time during the hearing for Mr Buckett to read them”. The owner said that he would do his best to get the documents to the plaintiff by Wednesday 19 November 1998. The referee said that the purpose of his directions “is to make sure that you have both got copies of the same documents”. The owner offered to give the plaintiff a list of the documents and asked him to inform him of the documents which he had not received. I infer that the list is the letter of particulars of 20 July 1998 (which, as I mention below, the plaintiff had already received). After lengthy submissions made by the plaintiff concerning the Tribunal’s jurisdiction, the hearing returned to what was proposed for the following week, during which the referee asked the plaintiff what material he proposed to rely upon. The plaintiff said that he would await the referee’s ruling on his submissions and the receipt of legal advice on it. He did not state, let alone imply, that he might not otherwise be ready. The referee then said -

“I was just hoping to shorten the proceedings next week. If necessary, we may have to adjourn so that ... [the owner] can read any material which you provide during the course of the hearing.”

The referee repeated that, so far as he was concerned, the hearing of the case would commence on the following Monday.

26    On 23 November 1998, the plaintiff complained at the outset to the referee that he had only received on 21 November 1998 copies of the reports to be relied on by the owners. Those documents comprised 308 pages. The plaintiff said that the documents were with his solicitors.

27    There is no dispute that the plaintiff had received a number of documents both during the 1994 proceedings which resulted in the determination quashed by Bruce J and certain other proceedings. Not surprisingly, the referee asked the plaintiff whether he had previously received copies of the documents which had been delivered to him on 21 November 1998. The plaintiff said that he did not know, since he had not checked and compared them with what he had earlier been given. He did not suggest that he had not the opportunity to do so. (I have inspected the documents in question, which were tendered before me. It would have been the work of less than an hour for this to have been done.) The plaintiff stated in his affidavit read in this Court that he sent the documents which he collected on 21 November to his solicitor on the morning of the hearing itself. At no stage did the plaintiff submit that, in respect of documents that he had in fact received some time previously and which were referred to in the letter of 20 July 1998, he was not ready to proceed.

28    The plaintiff submitted to the referee that he should have an adjournment to enable him to go over the documents delivered to him by the owners with his solicitors and counsel and prepare his case. He said it would take about three to four weeks for him to do this. A number of documents were produced to the referee. Precisely what they were is slightly obscure but I conclude that they were copies of what had been served on 21 December 1998. After hearing submissions from both sides, the referee said -

“ ... I think the matter should at least start this week. I am quite satisfied that most of the material has already been made available to Mr Buckett or those then advising him from time to time. The fact that Mr Buckett doesn’t have copies with him today is because he has couriered them or made arrangements for them to go to his legal advisers to get further advice. But that’s an action he has taken. I am quite satisfied that the bulk of the material was available to him before Friday afternoon, or whenever it was that ... [the owners] delivered it ... And that therefore he is not prejudiced by proceeding today .”

29    The plaintiff shortly afterwards, stated that he intended to leave the Tribunal to seek legal advice and to commence preparing his case. He submitted that, if the referee continued to hear the case, he would “be just compounding the unfairness of the situation”. He declined to tell the referee when he proposed to return. The referee then adjourned the hearing for almost an hour. On resuming the hearing the referee noted the plaintiff’s absence and indicated his intention to continue the hearing as the plaintiff had not given him any reason for his absence. Despite the attempt of his counsel in the proceedings before me to characterise the plaintiff’s behaviour as but the expression of a justifiable sense of grievance, I consider that it was calculated to frustrate the conduct of the proceedings on any terms but his own.

30    It is clear from the passage which I have set out above, especially when taken with the remarks he had made earlier, that the referee had decided that he would commence the proceeding on 23 November and make adjustments to the hearing timetable as he proceeded past what he described as “the start”. In all the circumstances, the referee was certainly entitled to be sceptical about the plaintiff’s ambit claim. I have no doubt that the plaintiff was given to understand, indeed, that he understood, that if it transpired that he did not have the documents to be relied on by the owner or needed to refresh his memory as to any part of them, that time would be granted and that he would be given the opportunity to deal with any material of which he did not have fair notice. In this last respect, however, I consider that it was known to the plaintiff, and had been known to him for some time (certainly since his receipt of the letter of 20 July 1998), what the nature and content of the owner’s case was. His insistence on a further three or four weeks’ adjournment to prepare his case, made at the last moment, and in substance inconsistent with the line taken by him at the previous directions hearing, has all the hallmarks of a mere delaying tactic. In my view the referee was entirely justified in undertaking the matter step by step, as in my view he unmistakably foreshadowed, to see what unfolded and how real the plaintiff’s complaints were. I note that the plaintiff’s extensive affidavit in these proceedings does not advert to any consultations with his solicitor or counsel in connection with preparing his case. Nor does it suggest what preparation in an evidentiary sense he need to undertake himself.

31    I cannot discern any unfairness in the referee’s approach or in his proposed mode of proceeding. Furthermore, his decision that the plaintiff was not prejudiced by commencement of the hearing on 23 November 1998, bearing in mind what he had foreshadowed as to the procedure, is a matter of fact which, even if it is reviewable in this Court for the purpose of deciding whether there was a breach of natural justice, I would be loath, without good reason, to disturb. It seems to me that the plaintiff had the opportunity to be heard in respect of evidence which was proposed to be taken by the Tribunal on 23 November 1998 and the ensuing days. He declined to be present. In the circumstances as a whole, I do not consider that hearing the claim in his absence was inconsistent with the requirements of procedural fairness. To the contrary, having regard to the attitude of the plaintiff, I consider it was reasonable that the referee should have proceeded to hear the claim. Had he declined to do so, this would, in effect, have given the plaintiff the adjournment which he failed to obtain following his submissions.

32    At the commencement of the hearing on the following day, 24 November, the referee delayed commencing to give the plaintiff an opportunity to appear. When he did not, the referee placed on record the information that he had heard nothing further from the plaintiff since his departure from the Tribunal on the previous morning and, accordingly, he proposed to continue hearing the claim. The hearing concluded on 25 November 1998 with the referee reserving his decision.

33    The plaintiff wrote to the referee on 1 December 1998 making reference to the documents which were tendered at the proceedings which he sought to examine. On 6 December 1998, the plaintiff again wrote to the referee stating that he had completed preparation of his case with the exception of three reports that the owner had not provided and seeking the opportunity “to reply to this case against me”. On 18 December 1998, the plaintiff wrote once more to the referee stating that if he had been told that he would have been provided with three documents allegedly not provided (identified as “Applicants’ documents 4,5 and 6” and comprising, though this is uncertain, a Hawkesbury City Council report, Inspector Thompson’s report and that from Mr Harrington of Bennett Real Estate) the plaintiff would not have needed to absent himself from the proceedings “and all this carrying on could have been avoided”. If this is true (and I do not see why it should not be accepted as an admission) the submission made by the plaintiff to the referee when he sought the adjournment was considerably less than candid. The plaintiff’s affidavits are somewhat obscure and inconsistent as to the documents in his possession from time to time but, in the end, it seems to me he does not maintain now that he had not received this material before the hearing and, in most cases, well before. I am satisfied, at all events, that he did. Even if the situation were otherwise, if the plaintiff had raised the issue with the referee when the owner sought to rely on this material, appropriate adjustments could have been made to permit him to deal with and, if necessary, respond to material of which he was unaware or in respect of which it was reasonable that he had not by then prepared a response. By making an unjustified general claim, which was rightly rejected, and then absenting himself, the plaintiff precluded any consideration by the referee of his actual difficulties.

34    The referee’s determination was made on 22 December 1998. In his reasons, the referee adverted to the plaintiff’s adjournment application and summarised briefly his reasons for it, which I do not need to set out here. The referee said -

“At first blush, Mr Buckett’s submission appeared to have some merit. It would be wrong to force on a hearing when a party had had only brief access to a large amount of material to be tendered against him. However, after hearing both parties and examining the relevant correspondence, I am satisfied that, apart perhaps for some very short documents, all matters had been known to Mr Buckett for a considerable period of time . These short documents are, in general terms, affidavits or statutory declarations verifying reports previously in the respondent’s possession...This is more so when one considers that there had been a hearing of the claim only a few weeks before. Perhaps it was not until Thursday evening that Mr Buckett knew just what was to be tendered on this occasion, but he must have had a fair idea. Further, his answers to questions put to him to elicit the extent of any possible prejudice were evasive...In short, I did not consider that there was any prejudice to Mr Buckett in proceeding to commence the hearing of the claim on 23 November, and I refuse the application.” (Emphasis mine)

35    No submissions were put to me on the plaintiff’s behalf suggesting that the referee’s characterisation of the extent of the documentation provided to the plaintiff (in italics in the passage above) was wrong. It coincides with my own examination of the material tendered to me.

36    It is unnecessary for me to set out in detail an account of the correspondence between the plaintiff and the Building Services Corporation in respect of the dispute between him and the owners. A number of hearings occurred before that with which I am presently concerned in November 1998. They were, firstly, in the Consumer Claims Tribunal in August 1994 (the decision of which was quashed by Bruce J in May 1998), then, in September 1995, disciplinary proceedings were commenced in the Commercial Tribunal (now known as the Fair Trading Tribunal) and ensued for 101 hearing days before being discontinued in August 1997 and, lastly, the 1998 proceedings, which involved one hearing that commenced on 18 August 1998 and went for some weeks but could not be completed because the referee disqualified himself and then the hearing with which I am concerned. It is fair to infer that the letter of particulars of 20 July 1998 was certainly in the hands of the plaintiff prior to the commencement of August 1998 hearings.

37    It is inescapable that, well before 23 November 1998, the plaintiff was familiar with all the material in respect of which he sought the adjournment to consider except for some relatively minor documents. In his affidavit read in this Court the plaintiff referred to a number of documents as causing him difficulties of one form or another if the hearing of the claim had proceeded on 23 November 1998. I will refer to them briefly, in the order in which they are mentioned in the affidavit. First, there is a statutory declaration of a Mr Beckett declared on 17 July 1997 in respect of which the plaintiff said, in effect, that he was unable to deal with or respond to both that and the report to which it was annexed. The statutory declaration simply affirmed the correctness of the report, which was dated 17 April 1997 and served on the plaintiff in the course of the disciplinary proceedings. The plaintiff says that he had “decided not to review or respond to this material at the time as it was not written by ... [a witness] who was [then] under cross-examination”. Those proceedings continued for a number of days before terminating whilst that witness’s evidence was incomplete and the plaintiff said that it was therefore unnecessary to examine or respond to the documents and reports including that of Mr Beckett. The plaintiff’s affidavit in this respect does not assert that he did not subsequently read that report or, for that matter, the other reports which had been served on him during the disciplinary proceedings or that he did not understand that they would not be relied on in the consumer claim proceedings. The clear implication of his affidavits is that, indeed, he had done so. Furthermore, the letter of particulars of 20 July 1998 informed the plaintiff that Mr Beckett’s report would be relied on. The plaintiff asserted that he had not seen a two page affidavit of a Mr Passfield (comprising a curriculum vitae and annexing a report, which he had previously seen and considered). Although some time might have been taken up by a consideration of the curriculum vitae, it would obviously have been short. The plaintiff claimed that he also needed time to consider a statutory declaration of a Mr Stafford, which he had previously seen and which, on 20 July 1998, he had been informed was proposed to be used. That declaration simply stated that Mr Stafford had worked in the dwelling for about fifteen minutes, that it was his practice to wear rubber soled shoes to avoid damage to surfaces and that he did not damage any. A similar claim was made in respect of a statutory declaration by a Mr Harrington, which annexed a short letter confirmed as being correct. That letter identified the owner of the dwelling, expressed the opinion that it would attract a particular weekly rental and that the property would not be hard to rent. Notice had also been given that it was intended to rely on this document. A number of other short documents are referred to by the plaintiff and the same claim is made. In respect of these, also, the plaintiff had been given notice on 20 July 1998 of the intention to tender them to the Tribunal. In respect of a quotation by a building firm in respect of rectification work, the plaintiff said that he had seen it during the disciplinary proceedings but needed time to reconsider it and to approach its author. An application made at an appropriate time for an adjournment for this purpose could have been considered on its merits by the referee but, in light of the plaintiff’s own behaviour, no such application was made. The plaintiff claimed that a statutory declaration by a Mr Roberts had not been seen by him before it was collected on 21 November 1998. That document, in substance, simply identifies Mr Roberts as having participated in certain tests and the preparation of a report by the CSIRO. On 20 July 1998 the plaintiff was informed that the owner proposed to tender the report. Consideration of the two-sentence statutory declaration of Mr Roberts would not have taken long and could easily have been arranged with the referee in accordance with his indicated time table. The plaintiff also said that he needed time to reconsider the CSIRO report. As I have already mentioned, he had notice that it was proposed to rely on this report long before the hearing date. The plaintiff also claimed in respect of a document entitled a “Show Cause Report” that he first saw it in early 1995 and at that time it was broken up into individual pages as a result of objections in the disciplinary proceedings. Of course, objections could not have been made unless the document had been considered. The plaintiff claimed that, even so, he needed time to reconsider it. Notice, however, that it was intended to rely on the report was given on 20 July 1998. Three pages of relatively little significance were, the plaintiff claimed, seen by him during 1997 and he needed time to reconsider them. If such time was necessary, it would only have needed to be brief. The same can be said for an Area Manager’s Report, comprising two pages and setting out a brief chronology of events. The plaintiff said that he had seen this document during the disciplinary proceedings in 1997 and needed time to reconsider it. He made the same claim in respect of some twenty-two photographs taken by the area manager but it seems to me that, given the history of the matter, he would not have needed much time to do so. There can be no doubt that he would have realised that these photographs, together with the other 150 pages of photographs which he had also received well before 21 November 1998, were to be relied on in the proceedings.

38    To my mind, it is significant that the plaintiff does not suggest how long he needed to reconsider the documents, the vast bulk of which he had received long before 21 November 1998 and of which he had notice, in effect, that it was proposed they be tendered against him on the hearing of the complaint.

39    It was submitted on the plaintiff’s behalf that the referee failed to appreciate the substance of the plaintiff’s submission which was, not so much that he had not seen the documents before, but that he needed time to check whether he had received copies of the documents to be relied on by the owner at an earlier time than 21 November and that he needed time to prepare his case. In light of the limited ruling made by the referee, as indicated above, it was unnecessary for the referee to analyse each document or to assess what difficulties the plaintiff had with presenting his case as a whole. I do not accept that the referee misunderstood the substance of the plaintiff’s application. I note that the plaintiff does not, in his affidavit, give any explanation for his departure from the hearing and for remaining absent.

40    The plaintiff complains about other documents tendered in the proceedings in his absence which he claims not to have earlier seen. However, if the adjournment he sought was rightly refused and it was proper for the referee to proceed when the plaintiff absented himself from the proceedings, I do not see how he can complain that there was any breach of the rules of natural justice simply because, as the matter unfolded, additional relevant material was tendered.

41    It was not submitted to me that the referee was not entitled to take into account his adverse assessment of the candour with which the plaintiff made his application for an adjournment as a material factor in deciding whether or not to grant it. Having considered the transcript myself, I think that there was ample material for the referee to have drawn the conclusion he expressed about the plaintiff’s evasiveness.

42    The letters written to the referee in December 1998 by the plaintiff were treated as an application to re-open the hearing to give the plaintiff a further opportunity to present his case. However, for reasons given by the referee, he did not think it right to take this course. It is not submitted in this Court that the referee’s decision in this respect was wrong. At all events, it was clearly justified.

43    In the result, I consider that the plaintiff has not established a denial of procedural fairness in the refusal of the referee to grant him an adjournment of the hearing.

44    The last matter raised by the plaintiff concerns the alleged failure of the Tribunal to comply with s 29 of the Act and attempt to conciliate the dispute. So far as is material, that section provides -

“(1) A tribunal must not make an order in respect of a consumer claim that is before it unless it has brought, or used its best endeavours to bring, the parties to a settlement acceptable to all of them.
…
(3) A tribunal must ensure that any meeting or proceeding held for the purposes of subsection (1) is not held in public.
(4) Any statement or admission made before a tribunal at a meeting or proceeding held for the purposes of subsection (1) is not admissible at a hearing of the consumer claim concerned or in any other legal proceeding.”

45    At the outset it needs to be noted that the Act does not create a single Tribunal acting through referees appointed from time to time to determine claims. Section 3(1) defines a “tribunal” as meaning “a consumer claims tribunal constituted under this Act”. Section 4 empowers the Governor to “appoint persons to be referees of tribunals” and s 5 provides that a tribunal “is constituted by a referee sitting alone”. The name of the Act itself indicates that it provides for the creation and jurisdiction of a number of tribunals. A single registry, however, is established in respect of the tribunals by s 7. The registrar and deputy registrars have such functions, inter alia, as may be conferred by the senior referee: s 8(2).

46    It is clear, in the light of these provisions, that the primary duty to conciliate is placed on the referee who is hearing the claim since the tribunal is expressly prohibited from making an order unless it has attempted to conciliate. The evidence does not disclose what, if anything, the referee in this case did in this regard. However, counsel on both sides have proceeded on the basis that he undertook no direct action. The claim form required the owners to state whether there had been an attempt at resolution by referral of their complaints to the plaintiff. They stated they had done so but had met with a negative response. On 30 May 1994 the registrar informed the owners that a suggestion had been made to the plaintiff that he should contact them “with a view to possibly resolving the matter by direct negotiation” and requesting that the owners send notice of withdrawal “if an offer is made which is acceptable to you”. On 9 July the then referee (who later disqualified himself) ordered the plaintiff to inform the owners of his “offer to settle the matter” and file the statement of his terms with the registry. The plaintiff complied with an offer that involved no or no substantial element of compromise. The owners, predictably, rejected that offer but made no counter offer. Neither the letters nor the orders encouraged the owners to consider what they might settle for and instigate negotiations directed to resolution of the dispute. The plaintiff was directed to initiate matters. In light of the history of the matter and the plaintiff’s attitude throughout, as well as his offer of settlement, the notion that any conciliation was possible is rather unreal. The plaintiff (who takes the point that the referee failed to attempt conciliation) has not, in any evidence tendered before me, ever suggested that he might have been interested in resolving the matter on terms different to those proffered pursuant to the referee’s order.

47    I do not think that it would be fair to characterise what had been done as the exercise of “best endeavours to bring the parties to the claim to a settlement acceptable to all of them” vide s 29 of the Act. Moreover, whatever was done was not done by the referee. Even if what had been done by others (which I have set out above) amounted to the use of best endeavours to conciliate, the question remains whether this would comply with s 29. Counsel for the plaintiff did no more than make the bald submission that the referee did not attempt to bring about a settlement and did not advert to prior correspondence or the previous referee’s order. Counsel for the Minister submitted that the matters which I have set out above amounted to compliance with s 29 but did not refer to the question whether the referee in the instant case had any direct duty to attempt to get the parties to settle and, if so, its extent. It is, at least, reasonably possible that the referee examined the file to ascertain what had been done about conciliation and decided that it was unnecessary or pointless to do more.

48    In Smith v Consumer Claims Tribunal & ors (supra), Newman J considered whether s 29 had been sufficiently complied with where a letter (the terms of which are not set out) in respect of conciliation went to a company but not to the director who later became a party. His Honour, pointing to what he described as “the informal nature of the proceedings”, held that s 29 had been satisfied. Although, having regard to his Honour’s language, I think it likely that the letter he was considering was not sent by the referee who ultimately heard the claim, the question whether compliance required the referee’s personal intervention was not in issue. In Fintron Pty Limited v The Registrar, Consumer Claims Tribunal & ors (unreported, NSWSC 16 December 1997), Graham AJ referred to correspondence from “the Tribunal” inviting the parties to attempt settlement. Again, I think that this characterisation did not take up the distinction between a tribunal constituted by the referee actually conducting the hearing on the one hand and another referee or the registrar (or, for that matter, his or her staff) on the other. Again, it is likely that his Honour was referring to correspondence issued by the registry. However this may be, the distinction which seems to me to be important here was not (with respect, rightly) the subject of any consideration by his Honour and the judgment takes the question no further.

49    In my opinion, the language of s 29 imposes a direct and non delegable duty on the referee appointed to hear and determine a claim to undertake personal responsibility for encouraging the parties to settle their dispute. This is not to say that the registrar or his or her staff should not encourage the parties to consider settlement at an early stage. This will give a context and some guidance to the referee in exercising his or her statutory function in this regard. Of course, the referee must not go so far as to prejudice either the appearance or the substance of impartiality. A number of matters could be drawn to the parties’ attention, in some cases conveniently in writing. They will probably include references to the likely length of the hearing with its consequent inconvenience and cost, the possibility of settling some aspects of the dispute (for example, agreements as to some amounts if not all or as to liability) could be mentioned, the delay in judgment and the uncertainty of litigation. In particular cases, other relevant issues might be mentioned. It is neither necessary or desirable to lay down any particular approach or procedure. The matter must be governed by fairness, common sense and the reasonably practicable.

50    Section 29 clearly presupposes that the referee may conduct “a meeting or proceeding” in order to attempt settlement. The existence of this exceptional jurisdiction, which would be completely inappropriate for a court, emphasises both the informal character of the proceedings and the importance ascribed to attempting settlement.

51    The obligation imposed by s 29 cannot be fulfilled unless the tribunal, at least, satisfies itself that the parties have adverted to the material considerations affecting their dispute and turned their minds to the possibility and scope of a settlement which each side might be disposed to accept. This might (and, probably should) not involve the disclosure of any particular sums. However, it would be a rare case, in my view, where a mere exchange of correspondence at the instigation of the tribunal would be sufficient to satisfy s 29. It is notorious that cases are very often settled at the door of the court, even where negotiations have hitherto seemed hopeless. It is imminent access to a determinative tribunal and the knowledge that evidence is about to be given and tested that seem to focus minds on the possibility of compromise and settlement. This practical consideration justifies the statutory imposition of the duty to attempt this disposition of the case on the referee responsible for making the ultimate orders and explains why prior attempts by others are insufficient.

52    In this case, the exchange of correspondence following the orders made by the preceding referee, as well as the history of the matter as it unfolded before the hearing may well have led the ultimate referee to consider that there was no point in further exhortation, and that all reasonable steps had already been taken to encourage settlement. However, there is no evidence that he turned his mind to s 29 of the Act at all. On the other hand, the proceedings before him commenced with submissions by the plaintiff that he had no jurisdiction to hear the claim, followed by an application for an adjournment and, when that failed, by his walking out. By his own actions the plaintiff precluded any attempt thereafter by the referee to bring about a settlement acceptable to the parties. Whether he would have done so remains unknown but there is no basis for inferring that he would not. The plaintiff deprived the referee of the opportunity to make0 the attempt. It would be absurd if a result of the plaintiff’s refusal to participate in the procedure provided by the statute was that the (inevitable) failure to encourage him to settle prevented the referee from making any orders. Section 29 presupposes that some steps, of whatever kind, are practicable. The presence of the parties appears to be a minimum requirement. The mere fact that the referee could have attempted conciliation at an earlier stage is, in the circumstances, irrelevant.

53    Even if I was of the view that s 29 of the Act, in the ultimate, had not been complied with by the referee, I would decline to grant relief to the plaintiff in light of his absenting himself from the hearing in a deliberate refusal to participate in the proceedings.

54    Accordingly, the summons is dismissed with costs.

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Last Modified: 04/10/2001