Burringbar Real Estate Centre Pty Limited v Anthony John Ryder

[2008] NSWSC 779

CITATION:	BURRINGBAR REAL ESTATE CENTRE PTY LIMITED v ANTHONY JOHN RYDER & ORS [2008] NSWSC 779 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	Monday 14 July 2008
JUDGMENT DATE :	31 July 2008
JURISDICTION:	Administrative Law
JUDGMENT OF:	Hall J at 1
DECISION:	An order that the record of proceedings of the Consumer Trader and Tenancy Tribunal in proceedings numbered COM 07/50282, COM 07/49717 and COM 07/49721 and the orders made in each of the proceedings on 26 October 2007 be delivered up to this Court so that an order in the nature of certiorari can be made correcting the record and quashing the said orders made by the CTTT. An order that the orders made in proceedings numbered COM 07/50282, COM 07/49717 and COM 07/49721 on 26 October 2007 be quashed and set aside. An order that each of the matters numbered COM 07/50282, COM 97/49717 and COM 07/49721 be remitted to the CTTT for re-hearing according to law. I grant leave to the parties to lodge within 14 days any written submission on costs.
CATCHWORDS:	ADMINISTRATIVE LAW – whether breach of procedural fairness – whether breach of statutory obligations – where Tribunal has the discretion under regulations to proceed to hear a matter ex parte if a party has failed to attend the hearing – where party was waiting outside the hearing room but the court officer failed to approach it – whether prerogative relief would be futile
LEGISLATION CITED:	Administrative Appeals Tribunal Act Consumer, Trader and Tenancy Tribunal Act 2001 Property Stock & Business Agents Act 2002
CASES CITED:	Italiano v Carbone [2005] NSWCA 177 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Riordan v Cross [2005] NSWSC 112 Ross v CTTT [2003] NSWSC 218 Ross v CTTT [2003] NSWSC 444 Stead v State Government Insurance Commission (1986) 161 CLR 141 Sullivan v Department of Transport (1978) 20 ALR 323
TEXTS CITED:	Judicial Review of Administrative Action, Aronson, Dyer and Groves, 3rd ed., 2004, at p.486
PARTIES:	BURRINGBAR REAL ESTATE CENTRE PTY LIMITED v ANTHONY JOHN RYDER & ORS
FILE NUMBER(S):	SC No 2008/30009
COUNSEL:	P: R E Dubler SC 1-6D: R Scruby 7D: Submitting appearance - K Rayner
SOLICITORS:	P: O'Reilly & Sochacki 1-6D: Stacks 7D: I V Knight

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

HALL J

THURSDAY 31 JULY 2008

No 30009 of 2008

BURRINGBAR REAL ESTATE CENTRE PTY LIMITED v ANTHONY JOHN RYDER & ORS

JUDGMENT

1 HIS HONOUR: The plaintiff, Burringbar Real Estate Centre Pty Limited, originally commenced these proceedings in the Administrative Law List by way of summons filed on 25 January 2008.

2 At the hearing on 14 July 2008, the plaintiff was granted leave to proceed on an amended summons. The amended summons joined the Consumer, Trader and Tenancy Tribunal (“the Tribunal”) as a party to the proceedings (as seventh defendant). At the commencement of the hearing, the Tribunal filed a submitting appearance and otherwise took no part in the proceedings.

3 The plaintiff seeks relief in the nature of prerogative relief pursuant to s.65(3)(b) of the Consumer, Trader and Tenancy Tribunal Act 2001 (the “CTTT Act”) in respect of a decision and order of the Tribunal given and made on 26 October 2007.

4 In Annexure A to the amended summons, the plaintiff sought an order that the proceedings of the Tribunal and the orders made in each of the proceedings on 26 October 2007 be delivered up to this Court so that an order in the nature of certiorari could be made correcting the record and quashing the orders made by the Tribunal.

5 The relief sought also included an order that the orders made on 26 October 2007 in each proceedings in the Tribunal be quashed and set aside and an order that those proceedings be remitted to the Tribunal for re-hearing according to law.

A claim for agent’s commission

6 The background to the proceedings concerns a claim for commission by the plaintiff made on the defendants on 7 August 2007 pursuant to the Property Stock & Business Agents Act 2002 for work which the plaintiff claims it undertook on their behalf in respect of the sale of certain properties owned by them. That claim was disputed by the defendants.

7 A copy of the claim was marked as Annexure F to the affidavit of Glenda Colefax. It was in the amount of $120,000. It was a claim for compensation representing 3.5% of the sale price of the relevant property, plus GST. The document recorded “details of services performed” as “introduction of Dickinson Brothers, the purchaser or directors or related persons to the purchaser, the claimant being the effective introducer of the purchaser to the property of the vendor, pursuant to an exclusive agency agreement”.

8 The claim form then set out particulars of “marketing services performed”.

Proceedings before the Tribunal

9 On 26 September 2007, the first and second defendants applied to the Tribunal for declaratory relief in relation to commission claimed by the plaintiff.

10 On 3 October 2007, the third defendant also applied to the Tribunal seeking similar relief.

11 The three applications lodged in the Tribunal were listed for hearing at the Local Court at Tweed Heads at 2.00 pm on Friday 26 October 2007.

12 In circumstances detailed below, the Tribunal made orders in favour of the defendants, the applicants in the proceedings before the Tribunal.

13 Annexure J to the affidavit of Glenda Colefax is a copy of a notification on behalf of the registrar dated 7 November 2007. The document recorded:-

“On 26 – OCT – 2007 the following orders were made:-
The Tribunal orders that the commission the subject of this application is not recoverable.
Reason: Pursuant to clause 7(1)(a) of the agency agreement, the respondent agent was not the effective cause of the sale of the applicant’s property.”

The evidence in the present proceedings

14 The plaintiff relied upon the affidavits of Stuart Cahill sworn on 21 May 2008 and 14 July 2008 (paragraphs 2 to 44 of the affidavit were not read on the basis that the defendants did not rely upon the affidavit of Mr Dickinson) and the affidavits of Gregory Gustave O’Reilly, solicitor, sworn on 18 January 2008 and 14 July 2008. Mr Cahill is a director of the plaintiff.

15 The defendants relied upon the affidavit of Anthony Ryder sworn on 24 April 2008, the affidavit of Catherine Ryder sworn on 24 April 2008, the affidavit of Irvine Jackson sworn on 24 April 2008, the affidavit of Narelle Jackson on 24 April 2008 and the affidavit of Glenda Colefax sworn on 23 April 2008.

16 At the hearing in this Court, Mr Cahill and Mr O’Reilly were briefly cross-examined. The defendants were not cross-examined on their affidavits. The hearing proceeded upon the basis that there was substantial (although not complete) agreement as to the events that occurred at the Tribunal on 26 October 2007. The parties’ submissions focused upon particular provisions of the CTT Act and the regulations made under the Act.

The plaintiff’s evidence

17 Prior to the present proceedings, Mr Cahill swore an affidavit on 1 November 2007 for the purposes of making an application for review of the orders made by the Tribunal on 26 October 2007. A copy of the affidavit was annexed to Mr O’Reilly’s affidavit sworn on 14 July 2008.

18 In the first-mentioned affidavit, Mr Cahill stated that the hearing at Tweed Heads Local Court was listed for 2.00 pm on 26 October 2007 and that he was, at all relevant times, present in the court precincts.

19 Mr Cahill said that he arrived at court at 1.20 pm on 26 October 2007. He said he was the first of the parties to arrive and after a short time went into the hearing room to await the hearing. He said that the Tribunal member entered the courtroom and asked him to leave the hearing room and wait outside. He said that occurred at approximately 1.50 pm.

20 Mr Cahill sat outside the hearing room and, at approximately 1.50 pm, Mr O’Reilly arrived. He had arranged for Mr O’Reilly to observe the proceedings. They went and sat in an interview room adjacent to the waiting room of the court a little distance from where three of the defendants were waiting. Mr Cahill said that, whilst initially the door of the interview room in which he and Mr O’Reilly sat was closed, at approximately 1.55 pm, Mr O’Reilly opened the door so that he could observe and hear when the matter was to proceed.

21 Mr Cahill said that the defendants were sitting in the waiting room and that they saw Mr O’Reilly and himself enter the interview room. He said that they knew him very well and some of them knew Mr O’Reilly. He said that he spoke to the defendants. In his abovementioned affidavit, he stated:-

“6. At no time was I aware that the Applicants had entered the Court Room. At no time was I aware that my matters had been called. I am aware that a Security Guard walked past the room I was in but, at no time did he approach me or say anything to me. I was aware that another matter was listed before my matter and considered this matter was being dealt with first.

22 Mr Cahill repeated these contentions in his subsequent affidavits sworn 21 May 2008 and 14 July 2008: Affidavit of Stuart Cahill, sworn 21 May 2008, at [3]; Affidavit of Stuart Cahill, sworn 14 July 2008, at [49].

23 In his affidavit of 1 November 2007, Mr Cahill continued:-

7. At approximately 2.35 pm, my Solicitor went into the Court. I joined him immediately thereafter. It was at that time that I learned that the matter had been dealt with in my absence. The Tribunal Member indicated that he sent the Security Guard out to see if I was present. I saw the Security Guard and he looked at me but, did not talk and made no mention that the matter was to proceed, nor did he make enquiry as to whether I was the respondent.
8. At all times, I was present at the Court awaiting to participate in the Tribunal proceedings. I was shocked when I learned that the matter had been dealt with in my absence.”

24 Following Mr Cahill and Mr O’Reilly’s discovery that the Tribunal had dealt with the matter in their absence, the plaintiff applied to the Tribunal for a re-hearing of the matter. Mr Cahill, however, was advised by letter (dated 14 December 2007) on behalf of the Registrar of the Tribunal that the plaintiff’s application for a re-hearing was not granted as “the application is misconceived”. The letter advised that the stay order was lifted and that the order made on 26 October 2007 remained in full force and effect. The letter provided as “Written Reasons” the following:-

“ A re-hearing application cannot be lodged where the amount in dispute is more than $25,000 pursuant to s.68(13) of the Consumer, Trader & Tenancy Tribunal Act 2001 .”

25 Mr Cahill, in his affidavit sworn 21 May 2008 set out the matters upon which the plaintiff would wish to rely in support of its claim for commission. In summary, Mr Cahill stated:-

(1) On 17 June 2005 he was contacted by Mr Paul Brown and John McDonald & Co Solicitors in relation to the sale of a property at Wardrop Valley which was then owned by Mr Brown’s wife.

(2) Mr Cahill then became involved in the prospective sale of five properties on Wardrop Valley Road, Murwillumbah. These included properties owned by the first and second defendants, the third and fourth defendants and the fifth and sixth defendants and a property owned by Mr and Mrs King.

(3) A meeting was called by Mr Cahill on 22 July 2005 of all vendors. It was agreed by all that he would sell the properties as a “consolidated block sale” .

(4) On 22 July 2005, exclusive agency agreements were signed by the first to sixth defendants.

(5) He had not been informed by the first, second, third or fourth defendants of any offers received from any potential purchasers.

(6) Mr Cahill commenced work attempting to sell the properties as a consolidated sale to various developers including the subsequent purchaser, Wardrop Valley Pty Limited.

(7) Mr Cahill met with Mr Jim Dickinson, one of the principals of Wardrop Valley Pty Limited at a site meeting on 9 August 2005 and again on 1 and 12 September 2005, on 5 December 2005 and on 6 January 2006. He said there were negotiations regarding the terms of the consolidated purchase. A further meeting took place with the Dickinsons on 23 May 2007 at which there was further discussion on the terms of the purchase and his commission.

(8) Mr Cahill claimed that the plaintiff was entitled to commission on the basis that he introduced the Dickinsons to the concept of a consolidated block purchase of all properties and had negotiated the terms of purchase. He also relied upon the fact alleged by him that the work completed by him was the effective cause of the subsequent purchase of the five properties by Wardrop Valley Pty Limited.

(9) The agency agreements had not been formally terminated by the first, second, third and fourth defendants. The fifth and sixth defendants terminated their agency agreement on 14 May 2007.

(10) He is aware that the third and fourth defendants’ contract was settled on or about 31 July 2007 and that they received $950,000.

(11) He is aware the first and second and fifth and sixth defendants entered into contracts on 15 June 2007 but that there was a delayed settlement of 12 to 18 months.

(12) The sale of the Kings’ property also involves a delayed settlement.

26 Mr O’Reilly, in his affidavit sworn on 18 January 2008, stated that he attended the Tribunal at the Local Court at Tweed Heads at approximately 1.50 pm where he met Mr Cahill who was then waiting in the waiting area of the Tribunal.

27 In a subsequent affidavit, he further stated that another matter, Philros Pty Limited, was listed at 2.00 pm on 26 October 2007 before the defendants’ applications: Affidavit of Mr O’Reilly, sworn 14 July 2008 at [4].

28 In his affidavit sworn 18 January 2008, Mr O’Reilly stated that he and Mr Cahill entered and sat in an interview room adjacent to the waiting area. He said that Mr Cahill had advised him that on his arrival he had gone into the hearing room but had been requested to leave by the presiding member to wait outside for his matter to be called.

29 Unbeknown to Mr O’Reilly, the hearing of the defendants’ applications commenced. Mr O’Reilly stated that whilst he saw the “security guard”/Tribunal attendant walk past the interview room in which he and Mr Cahill were sitting:-

“At no time did the Court Officer call out the name of the plaintiff or Mr Cahill. At no time did he call the parties in any proceedings to appear before the Court. At no time did he enter our room or approach us or indicate to the plaintiff or myself that the proceedings had commenced” : Affidavit of Gregory Gustave O’Reilly, sworn 14 July 2008 at [4].

30 Mr O’Reilly added that he was very familiar with the precincts of the Tweed Heads Court and the interview rooms: Affidavit of Gregory Gustave O’Reilly, sworn 14 July 2008 at [5].

31 Mr O’Reilly and Mr Cahill remained in the interview room until, as Mr O’Reilly stated:-

“8. At approximately 2.20 pm, I became concerned that the Plaintiff’s matter had not been called. I went into the Court and spoke to the Presiding Member who advised that the matter had been dealt with in the absence of the Plaintiff and that Orders would be made in each of the proceedings in favour of the Applicants and providing that no commission was payable to the Plaintiff.
9. As a consequence of the matter being dealt with on an ex parte basis, on 8 November, I caused an Application for re-hearing to be filed at the CTTT. In support of this Application, Mr Cahill prepared an Affidavit sworn on 1 November 2007. Annexed and marked A is a true copy of the Affidavit …”

32 Mr O’Reilly noted that the plaintiff claimed that it had been denied procedural fairness in the conduct of the proceedings. It maintained that it would be manifestly unjust and inequitable for the defendants’ application to have been successful in circumstances where the plaintiff was not present at the Tribunal to give evidence, make submissions and otherwise participate in the proceedings and that orders were sought as set out in the summons.

The defendants’ evidence

33 Mr Ryder, in his affidavit, stated that, when he arrived at the Local Court at Tweed Heads on 26 October 2007 at about 1.40 pm, he noticed the “plaintiff’s” (he was clearly intending to refer to Mr Cahill’s) car was outside the court. He said that Mr and Mrs Colefax arrived at about the same time as he and they all waited for Mr and Mrs Jackson to arrive.

34 Shortly after, the Jacksons arrived and all of the defendants entered the waiting area outside the hearing room. He said there were two or three interview rooms and he annexed to his affidavit (Annexure G) a sketch of the waiting area.

35 Mr Ryder said that he noticed that the “plaintiff” (again clearly intending to refer to Mr Cahill) was in a chair on the far right hand side of the waiting room. He said that Mr Cahill looked at them and said “G’day”.

36 He said that, shortly after, he saw a man enter the courthouse and say hello to Mrs Colefax then walk over to Mr Cahill. The two of them then walked into a small interview room adjacent to the waiting area and closed the door. He was told by Mr and Mrs Colefax that the man who had entered was Mr O’Reilly, a solicitor who had done work for Mrs Colefax.

37 According to Mr Ryder, at 1.55 pm, the door to the interview room was opened and he had a clear view of Mr Cahill.

38 At about 2.00 pm, the court officer opened the hearing room and, according to Mr Ryder, said in a loud voice words to the effect “all those for the 2.00 pm hearing, please go into the Court”. There was, in fact, one other matter in the 2.00 pm list ahead of the defendants’ applications. He said that all of the defendants entered the courtroom and the Tribunal member entered shortly after and introduced himself.

39 The Tribunal member asked for a representative from each of their groups, with Mr Ryder and Mr Jackson moving to the table closer to the Tribunal member.

40 Mr Ryder then stated in his affidavit:-

“18. When the Tribunal Member called for a representative from Burringbar Real Estate, I looked around the Courtroom and could not see the Plaintiff. I heard the Fifth Defendant, Mr Irvine Jackson, say to the Member words to the effect of, ‘he is in the interview room outside’. The Tribunal Member then said to the Court Officer words to the effect of, ‘please go outside and see if you can find him’. The Court Officer at this time left the Courtroom and returned shortly later and said words to the effect of, ‘there is nobody out there’.”

41 Mr Ryder then said “We then outlined our case to the Tribunal Member” (paragraph 19).

42 Mr Ryder then stated, in his affidavit:-

“20. At some point during our outline, the Member then looked around the Courtroom to see if the Plaintiff had arrived. He said to the Court Officer words to the effect of, ‘go back outside and see if Mr Cahill is in the foyer or the interview rooms’. The Court Officer returned and said words to the effect of, ‘there is no-one in there’. The Member asked, ‘did you call his name?’ and the Court Officer replied, ‘yes’.”

43 Mr Ryder then said that the Tribunal member made comments “about his view of our case and made his ruling”. He said he soon after left the hearing room and, as he did so, he looked to the left and into the interview room and he saw Mr Cahill sitting in there.

44 The account of events given by Mrs Ryder in her affidavit is similar to that of her husband. In paragraph 11, she said that the Tribunal member called the defendants’ names individually and then called a representative from the plaintiff. She stated (paragraph 11):-

“… and I recall that the Fifth Defendant, Mr Irvine Jackson, said to the Tribunal Member words to the effect of ‘Mr Cahill is outside’.”

45 After giving an account of telling their “story” to the Tribunal member, Mrs Ryder stated:-

“14. The Tribunal Member at some point during this process said words to the effect that he would like to hear from ‘Mr Cahill’, or he could have said ‘a representative from the Burringbar Real Estate’, I do not recall.”

46 Mrs Ryder went on to state that Mrs Jackson said words to the effect that Mr Cahill was outside in a room that was off the waiting room and that the Tribunal member then said to the court officer, “Please go outside and check all of the rooms”. The court officer returned and said something like “I can’t find him”.

47 Mrs Ryder said that the Tribunal member then finished the proceedings by making his determination and said that an official notice would be sent. She also said that on departing the room, she saw Mr Cahill sitting in a chair in the interview room and they left the courthouse shortly afterwards.

48 Mr and Mrs Jackson, in their affidavits, gave accounts which were essentially consistent and similar to that given by Mr and Mrs Ryder. Mr Jackson also said that the Tribunal member, after hearing from the defendants, told the court officer “please go and check if the Burringbar Real Estate representative is outside”. He did not refer to a direction to the court officer to call a representative of the plaintiff. It was on the second occasion when the Tribunal member gave the direction to the court officer that he said “make sure you check all the interview rooms”.

49 Mrs Colefax, in her affidavit, said that she saw Mr Cahill on her arrival, but did not speak to him. She recalled that, shortly afterwards, she saw her former solicitor, Mr O’Reilly, enter the courthouse. He stopped and said hello to her and then went over to Mr Cahill. She said they both entered a small interview room and closed the door. She said that at 1.55 pm when the door was opened, she saw both men seated in the interview room.

50 When the Tribunal member took appearances, she said he inquired “does anyone know if he is here?”. Mrs Colefax believed that Mr Jackson responded with words to the effect that he had seen Mr Cahill outside the interview room. According to Mrs Colefax, the Tribunal member asked the court officer “go outside and call [the plaintiff]”. The officer returned shortly thereafter and said “there is no-one there”.

51 Mrs Colefax’s account thereafter is similar and consistent with the affidavits of the other defendants.

Submissions for the plaintiff

52 Mr R E Dubler SC, on behalf of the plaintiff, submitted that there had been a breach of the provisions of s.28(4) and of s.35 of the CTTT Act and, additionally, a breach of the procedural fairness requirements under general law principles.

53 The plaintiff relied upon the provisions of s.65(3) of the CTTT Act which provides:-

“65(3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which relief or remedy is sought is that:-
(a) the Tribunal had no jurisdiction to make the order, or
(b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness.”

54 It is convenient at this stage to refer to the relevant provisions of the Act. Part 4, Procedure of Tribunal, prescribes the requirements for proceedings of the Tribunal. In particular, in that respect, the following provisions are noted:-

• Section 25(1) provides that, if any proceedings are to be determined by hearing, the Registrar must cause notice of the time and place that it is fixed for the hearing to be given to each party in the proceedings.

• Section 25(2) provides that, if a party who has been notified under subsection (1) fails to attend at the time and place notified, the proceedings may be held in the absence of the party.

• Section 28(1) provides that the Tribunal may, subject to the Act, determine its own procedure.

• By s.28(3), the Tribunal is to act with as little formality as the circumstance of the case permits and according to equity and good conscience and the substantial merits of the case without regard to technicalities or legal forms.

• By s.28(4):-

“the Tribunal is to take such measures as a reasonably practicable to ensure that the parties in any proceedings understand:-
(a) the nature of the assertions made in the proceedings and the legal implications of those assertions; and
(b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings.”

• By s.28(5)(f), the Tribunal may adjourn proceedings to any time and place.

55 Mr Dubler submitted that despite s.28(4), the Tribunal, in the absence of the plaintiff, heard the assertions of the defendants in the proceedings and, to this day, the plaintiff does not understand the nature of them because it did not hear them and was not given an opportunity to respond.

56 The plaintiff also specifically relied upon the provisions of s.35 which are in the following terms:-

“35. Opportunity for parties to present case
The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity:-
(a) to call or give evidence and otherwise the present the party’s case (whether at a hearing or otherwise), and
(b) to make submissions in relation to the issues in the proceedings.”

57 The submission for the plaintiff was that the provisions in s.28(4) and s.35 in combination impose obligations similar to those that were under the hearing rule in accordance with the general law principles associated with natural justice.

58 Anticipating reliance by the defendants on clause 29 of the Consumer, Trader & Tenancy Tribunal Regulations 2002, the plaintiff’s submission was (transcript, 14 July 2008, p.5):-

“… it would be wrong to conclude that regulation 29 was engaged because there was not a failure to attend the hearing; that the evidence is that Mr Cahill waited in the tribunal room, was told to wait outside until the matter was called; he did wait outside and the matter was not called and so he was very much physically in attendance at the hearing and, due to the mishap in the security guard not actually calling out the name of the party and bringing the plaintiffs in, he was denied his opportunity to present the case.”

59 In terms of s.28(4), it was submitted that the measures that were reasonably practicable to ensure the plaintiff understood the matters set out in s.35(a) and (b) included an announcement or calling outside the hearing room that the matter was ready to proceed or, alternatively, that Mr Cahill be called by name. The submission was (transcript 14 July 2008, p.5):-

“And in a similar fashion, under s.35 the failure to, by voice, call the matter outside when the tribunal was informed that the parties were in fact waiting outside was a failure to ensure that the plaintiff had had a reasonable opportunity to come inside the tribunal and call and give its evidence.”

Submissions for the defendants

60 Mr Richard Scruby of counsel, on behalf of the defendants, submitted that there were essentially two issues for determination. The first was whether the plaintiff was denied procedural fairness such that an order in the nature of certiorari would issue. The second was, if the plaintiff was denied procedural fairness, whether relief should be withheld as a matter of discretion (written submissions of the defendant, paragraph 3).

61 In relation to the first issue, the basis of the plaintiff’s claim, it was submitted essentially was that the Tribunal denied him procedural fairness because it determined the defendant’s claim in his absence. Mr Cahill was sitting outside the hearing room waiting for the hearing to commence while the matter was being dealt with.

62 In determining what constitutes a denial of procedural fairness, it was submitted, it is necessary to ascertain what rights a party in the plaintiff’s situation has to be heard. Reference was made in this respect to the provisions of s.35. It was contended that s.35 did not assist the plaintiff because it does not impose obligations on a tribunal in relation to a party who does not appear at a hearing: Ross v CTTT [2003] NSWSC 218 at [11]; Ross v CTTT [2003] NSWSC 444 at [34] to [37].

63 It was further submitted that, where a respondent does not appear at a hearing, the Act empowers the Tribunal to proceed in that party’s absence. In this respect, reference was made to the provisions of s.86(2)(d) of the Act which is the regulation making provision. Particular reliance was placed upon clause 29 of the Regulations. That clause provides as follows:-

“29. Ex parte proceedings
(1) The Tribunal may proceed to hear a matter in the absence of a party who has failed to attend the hearing:-
(a) if it is satisfied that notice of the hearing was duly served on the party, or
(b) if:-
(i) being satisfied that service of notice of the hearing has been duly attempted, or
(ii) having given directions under clause 46(6),
the Tribunal considers that justice requires that the matter be dealt with in the absence of the party concerned.”

64 Mr Scruby observed that clause 29 confers a discretion on the Tribunal to proceed in the absence of a party in the event that it is satisfied that notice of the hearing was duly served on the party. He observed that no complaint was made that the Tribunal’s discretion miscarried. In any event, he submitted any such complaint could not support an order in the nature of certiorari, (or indeed on a question of law) reliance being placed upon Riordan v Cross [2005] NSWSC 112 at [22] to [26].

65 The defendants further submitted that the proposition that the plaintiff did not fail to attend the hearing was not valid. In this respect, reference was made to the fact that the proceedings had not been listed for hearing at the time that Mr Cahill first entered the hearing room and the proceedings had not, at that time, been called. In addition, it was said that there was no suggestion in the evidence that Mr Cahill identified himself as a representative of the plaintiff or that the Tribunal member had appreciated who he was.

66 The defendants also submitted that the plaintiff did not, as he contended, attend the hearing because he was outside the courtroom. The hearing of the matter was not outside the hearing room but inside it.

67 The defendants also disputed the submission for the plaintiff that the “security guard” (or Tribunal attendant) and the member could collectively be regarded as the Tribunal.

68 On the above basis it was submitted that the court would dismiss the amended summons.

69 It was also submitted for the defendants that the reason for a party’s non-attendance is irrelevant for the purposes of clause 29 of the Regulations and that that is apparent from the very terms of the clause itself.

70 The question of whether the matter was called outside the courtroom was, Mr Scruby argued, irrelevant as:-

(1) The question is whether the Tribunal’s discretion under clause 29 was engaged. That is, the question is whether the plaintiff “failed to attend the hearing” . If the Tribunal’s discretion is engaged, that is the end of the matter. It is irrelevant to that question to ask whether the matter was called.

(2) Insofar as the issue is relevant, it can only be relevant to ask whether the Tribunal could reasonably have concluded that the Tribunal was not outside the courtroom at the time the matter was being heard. That question, it was submitted, would be determined in the defendants’ favour:-

(a) There is no doubt the matter was called, at the time the defendants went into court.
(b) Mr Ryder’s uncontradicted evidence is that the guard told the Tribunal that the matter had been called without response.
(c) The evidence of the remaining defendants is consistent with this. As lay people they were not attempting to draw a distinction between a matter formally being called and someone going outside to try to find a party.
(d) Insofar as there is doubt about the question, it should be resolved in favour of the defendants. The plaintiff had an opportunity to seek the Tribunal’s reasons for its determination. It never did so. Those reasons, it was contended, would, no doubt, have included the reasons for the Tribunal exercising its discretion under clause 29.

Consideration

71 Whilst the CTTT Act refers to the efficient and effective disposal of proceedings, it also places considerable emphasis upon the requirements of procedural fairness in the conduct of proceedings by the Tribunal. The provisions as to notice (s.25), as to the procedure of the Tribunal (s.28) and the reasonably opportunity provisions (s.35) make that very plain.

72 The provisions of the legislative scheme distinguish between:-

(1) The failure by a party to attend “at a time and place notified” : s.25(2) of the Act.

(2) The failure of a witness to “attend before the Tribunal” : s.41(1), s.42(1)(a) of the Act.

(3) The failure of a party “to attend the hearing” : clause 29(1) of the Regulation.

73 In relation to (1), a party may be notified to attend at a place at which a hearing will be conducted at a date and time specified. The attendance at those premises at that time and date would constitute compliance with a notice under s.25 of the Act where the notice does not specifically call for attendance at a particular hearing room or courtroom in the premises.

74 In the present case, Mr Cahill attended the premises of the Local Court at Tweed Heads on the hearing date and at the appointed time. It could not be suggested in the circumstances of this case that he failed to comply with a notice issued under s.25(1) of the Act, and no submission to that effect was made.

75 As to (2), the failure of a witness to attend is not one expressed in terms of a failure to attend a hearing. There may be circumstances, for example, where there is no hearing in relation to a witness who produces documents to the Registrar or other officer of the Tribunal in accordance with proper procedure in answer to a summons.

76 As to (3), a failure to attend the hearing is a failure to attend the place at which the hearing will be conducted and must, in my opinion, refer to a failure to attend the courtroom or hearing room in which the hearing is to take place. This, as noted above, was the construction which Mr Scruby contended for in his submissions.

77 Accordingly, in the present case, whilst the plaintiff, by its director Mr Cahill, attended in response to the notice of proceedings, he did not actually attend “the hearing” by entering the hearing or courtroom at the appointed time of 2.00 pm. It is in those circumstances that the defendants rely upon the discretionary power available to the Tribunal to proceed on an ex parte basis under clause 29 of the Consumer, Trader and Tenancy Tribunal Regulation.

78 Whilst the defendants’ contended that the discretionary power in the Tribunal to proceed in the absence of a party under clause 29 provided a complete answer to the plaintiff’s claim for relief, I do not consider, in the circumstances of this case, that it does. In particular, I do not accept, for reasons stated below, that an exercise of the discretion under clause 29, in the circumstances of the present case, necessarily precludes a finding that the plaintiff was denied procedural fairness.

79 The Tribunal’s power to proceed to hear a matter in the absence of a party who has failed to attend a hearing is a power that must be considered and exercised in the context of the statutory obligations of the Tribunal under the CTTT Act. Those obligations required it, in the present case, to give due consideration to the particular circumstances that were disclosed in evidence concerning the plaintiff’s non-attendance before it exercised the power.

80 In Italiano v Carbone [2005] NSWCA 177, Basten JA (dissenting on the issue as to whether procedural fairness had been accorded by the Tribunal but whose statement of principle was not the subject of disagreement) observed at [106]:-

“There are, as already noted, provisions which allow the Tribunal a significant degree of flexibility in adapting its procedures to the exigencies of the case in determining the manner in which the proceedings will be conducted. Nevertheless, those provisions should not be construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness. …”

81 Basten JA also observed in that case at [80] that the content of procedural fairness is one that is capable of control by the Parliament and it must be determined in its statutory context. His Honour stated:-

“…the general law principles are relevant to the effect of the specific statutory requirements and inform the consequences of breach, where those consequences are not made explicit by the statute. In the present case, the statutory provisions tend to expand, to an extent, the scope of obligations which might otherwise have been implied: but because they serve the goals of procedural fairness, invalidity may more readily be inferred as the intended consequence of breach.”

82 His Honour there also raised the question at [85] as to whether, in the circumstances, procedural fairness required, in relation to the question of an adjournment of proceedings, that the proceedings be adjourned in the interests of the claimant, identifying as one possibility whether the circumstances were “… otherwise such that the Tribunal itself had an obligation to consider offering an adjournment”. Reference was also made to authorities that considered circumstances in which, although an adjournment application had not been made by a party, an obligation may arise in the Tribunal to adjourn a matter. That obligation was identified as an incident of the Tribunal’s duty to act judicially.

83 Included in the case law to which his Honour referred was the judgment of Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 342 (25), wherein the following observation appears:-

“where a Tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe … If, in all the circumstances, the failure of the Tribunal to adjourn the matter to enable Dr Evans to be called as a witness or to alert the appellant of his right to apply for such an adjournment constituted a denial to the appellant of a reasonable opportunity of presenting his case, both the common law principles applicable to a tribunal under a duty to act judicially and the specific provisions [of the Act] entitle the appellant to the intervention of this Court.”

84 In Sullivan (supra), following reference to provisions in the Administrative Appeals Tribunal Act (s.33(1)(b)) being the equivalent to s.28(3) of the CTTT Act, Deane J concluded at 343 (10):-

“A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment … that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a Tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506). In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposed upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.”

85 Returning to the facts of the present proceedings, this was not a case simpliciter of a party failing to attend a hearing. Mr Cahill, on behalf of the plaintiff as the respondent before the Tribunal, had, as earlier noted, in fact, attended minutes before the appointed time at the Tweed Heads Courthouse. That fact was made known to the Tribunal member by one or more of the defendants.

86 The fact of Mr Cahill’s presence at the courthouse immediately prior to 2.00 pm on the hearing date demonstrated in itself the plaintiff’s interest in the proceedings that were to be heard by the Tribunal. The Tribunal member having been alerted to his presence, directed that the Tribunal’s attendant find Mr Cahill. The fact that the Tribunal’s attendant apparently did not find him so soon after the commencement of the hearing may, as a matter of theoretical possibility, have been explicable by a number of circumstances. Mr Cahill may, for example, have been urgently required to have gone elsewhere or he may have become temporarily indisposed.

87 The undisputed fact, however, was that Cahill and Mr O’Reilly at all material times were in fact waiting outside the hearing room. The fact that the Tribunal’s attendant apparently saw them but did not approach or speak to either of them, is indeed a puzzling feature of the case. Although there was some evidence that the attendant was told to call the plaintiff and/or Mr Cahill outside the hearing room, both Mr Cahill and Mr O’Reilly’s evidence indicates that the attendant did not do so. It was not suggested to either of them in cross-examination that their evidence was erroneous in this respect. I consider on the evidence it is probable that the Tribunal attendant did not call the matter or Mr Cahill’s name when he left the hearing room as directed by the Tribunal.

88 The amount of the claim for commission by the plaintiff, the subject of the application before the Tribunal, was a very substantial one indeed. As Spigelman CJ in Italiano (supra) observed at [12]:-

“The Tribunal is a body which has been granted important powers, including powers which are not limited to small disputes in which speed and economy are entitled to determinative weight. It has a jurisdiction with respect to building claims up to $500,000 and the amount awarded in this particular case is almost double the jurisdiction of the Local Court. There are real limits to the extent to which this Court should countenance the Tribunal ignoring the basic requirements for its proper functioning, as laid down by the Parliament directly, or indirectly through Regulations which are capable of being disallowed by Parliament.”

89 Although the present case is not a building claim and there is no issue in the present case of the Tribunal ignoring any particular requirements in the Regulations, the above observation of the Chief Justice I consider to be pertinent to the obligation to accord procedural fairness in the present case. The matters before the Tribunal involved a substantial claim. There was no evident urgency that required the applications to be heard and disposed of without delay. They were, on the evidence, disposed of within a period of approximately 20 to 25 minutes after 2.00 pm.

90 In the circumstances in which the Tribunal member had been informed that the plaintiff’s director had been seen only a few minutes before waiting outside the hearing room, the minimum requirement in terms of taking “… measures as are reasonably practicable” as required by s.28(4) was to adjourn the proceedings for a short time to permit due inquiry to be made. On the known facts, a short adjournment would, with certainty, have revealed the fact that, although apparently unknown to the court attendant, Mr Cahill (and Mr O’Reilly) were and had at all times been waiting outside the hearing room with the intention of participating in the hearing. That simple step would have ensured that the plaintiff was accorded the opportunity of participating in the hearing.

91 Where there is a failure to attend in terms of s.25(2), there may well be circumstances in which the Tribunal is entitled to proceed to hear a matter in the absence of a party. However, in the circumstances of the present case in which there was no failure to attend as required by that section and the Tribunal member was told that Mr Cahill had attended and was seen in the interview room just before 2.00pm, the Tribunal, in my opinion, was obliged as an incident of its judicial duty in affording procedural fairness, as a minimum, to have adjourned the hearing for a short time to enable further inquiries to be made. In not doing so the consequence was that a decision and an order were made without the plaintiff having the opportunity to participate. This occurred in circumstances in which the decision and order could not be the subject of any subsequent re-hearing by reason of Regulation 24(1)(a).

92 The fact that clause 29 conferred a discretionary power on the Tribunal does not, in my opinion, render any exercise of it unreviewable on procedural fairness grounds. The cases involving decisions refusing adjournments, I consider, illustrate that point plainly enough.

93 I do not accept, as was submitted for the defendants, that once clause 29 is engaged that that is an end of the matter. That provision in the regulation, it is true, confers a discretionary power upon the Tribunal. It is also true that the width of any discretion conferred on a decision-maker may be relevant in determining the content of the obligation to accord a party procedural fairness: Judicial Review of Administrative Action, Aronson, Dyer and Groves, 3rd ed., 2004, at p.486.

94 However, clause 29 cannot, of its own force, operate in disregard of the CTTT Act, in particular, the mandatory provisions in s.28(4) and s.35. The discretion under clause 29, like a discretion in a court or tribunal to grant or refuse an adjournment, is subject to the requirements of procedural fairness having due regard to the circumstances of the particular case.

95 In general, where a party establishes a breach of procedural fairness against it, a Court will exercise its discretion and grant relief unless satisfied that the breach could have had no effect on the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. This qualification underlines the object of the law, namely, to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14.

96 Gleeson CJ in Lam (supra) observed that one such common practical injustice occurs where, owing to the breach, a person has lost an opportunity to make representations and advance his or her case: Lam (supra) at 13-14.

97 In the present case the plaintiff lost the opportunity to advance his case, an opportunity that cannot be addressed by way of an application for rehearing by the Tribunal: clause 24(1)(a) of the Regulations under the Act. The defendants, however, contend that the lost opportunity could not have made any difference to the outcome.

98 At hearing, Mr Scruby acknowledged that it was for the defendants to establish the proposition that any grant of relief by this Court would be futile. However he contended that even if the plaintiff had had an opportunity to present its case (and to hear the case against it) before the Tribunal, the decision would remain unchanged as on the defendants’ case, the plaintiff had no entitlement to commission under the terms of the agency agreements with the defendants.

99 On or around 22 July 2005, the plaintiff company entered into “Sales Inspection Report & Agency Agreements” with each of the Ryders, the Colefaxs and the Jacksons, with the plaintiff company to act as agent in the sale of the defendants’ respective properties. The agency agreements vested exclusive selling rights in the plaintiff as agent until midnight, 23 November 2005, and thereafter it made provision that the agent “retain non-exclusive selling rights until terminated in writing…”.

100 Clauses 7 and 12 entitled the plaintiff to commission in certain circumstances. Clause 7 relevantly provided:-

7(i) The Agent shall be entitled to a commission of 3.85% … of the sale price,
(a) if they sell the property in accordance with this Agency Agreement or they effectively introduce to the Principal a Purchaser who enters into a contract to buy the property
OR
(b) where Clauses 12 and 13 apply [clause 13 having been crossed out in all the agreements].”

101 Clause 12 relevantly provided:-

“12. EXCLUSIVE AGENCY
(i) The Agent is granted exclusive selling rights and shall be entitled to the payments mentioned in Clause 7 as the Agent’s commission if during the period of the agreement or any extension EITHER the property is sold:-
(a) by the Agent,
(b) by any other Agent or any other person,
(c) by the Principal.
OR a purchaser is introduced to the Principal or the property by anyone referred to in (a), (b) or (c) above and they subsequently purchase the property.”

102 The plaintiff’s entitlement to commission (at least as to one basis relied upon in submissions) turned on whether it could be said that it had “introduced” the purchaser, Wardrop Valley Pty Limited, to the principals (the Ryders, Colefaxs and Jacksons) or introduced the purchaser to the property. Under clause 7(i)(a), the agent was entitled to commission if it “effectively introduced to the Principal a Purchaser who enters into a contract to buy the property”. Under clause 12(i), the entitlement to commission arose if “during the period of the agreement .... a purchaser is introduced to the Principal or the property by [the Agent, or any other agent or other person, or by the Principal] and they subsequently purchase the property”.

103 Mr Scruby submitted that, if this matter proceeded to a substantive hearing, it was inevitable that the plaintiff would be unable to establish his entitlement to commission as it could not be said that the agent had “effectively introduced” the purchaser to the principals, or that he had “introduced” the purchaser to the property in circumstances where Wardrop Valley Pty Limited had been negotiating with the defendants to purchase the properties since 2002: Written Submissions of the Defendant at [20].

104 At hearing, the defendants relied upon written correspondence in 2005 between John McDonald & Partners, a firm of solicitors acting for the defendants as well as for Pauline Brown, and the Dickinsons (the “principals” of Wardrop Valley Pty Limited) and solicitors acting for the Dickinsons: Affidavit of Anthony Ryder, dated 24 April 2008, Annexure C and D.

105 In one letter (dated 8 June 2005), the solicitors for the defendants and Pauline Brown indicated that:-

“Our clients … will agree to sell their properties to your clients provided suitable terms can be promptly agreed upon.
Would you please let us know if your clients are interested in proceeding in this way and, if so, their proposal in terms of a settlement date and the price they are prepared to pay for each of the four properties in question.”

106 In a subsequent letter (dated 30 June 2005), the solicitors acting for the defendants and Pauline Brown corresponded directly with the Dickinsons, stating:-

“Our clients are adamant that they will not agree to permit their properties to be re-zoned.

You are invited to make an offer to purchaser all four properties. Our clients will consider all reasonable offers.”

107 The plaintiff acknowledged that there may have been negotiations between the Dickinsons and solicitors for the defendants and Pauline Brown concerning re-zoning of those properties. Nonetheless it emphasised that sale of the defendants’ properties only occurred after Mr Cahill, following his meetings with the Dickinsons from 9 August 2005 onwards, suggested that Wardrop Valley Pty Limited purchase the four properties (those owned by the defendants and Pauline Brown) along with the neighbouring property of Mr and Mrs King as a “consolidated block sale”: Transcript, 14 July 2008, at p.20, p.59-60; Affidavit of Stuart Cahill, sworn 21 May 2008, at [28]-[30].

108 The plaintiff’s position is that the fact that the Dickinsons had corresponded with the defendants about their properties prior to the defendants entering into the agency agreements with the plaintiff does not preclude the plaintiff from having “effectively introduced” or “introduced” Wardrop Valley Pty Limited to the defendants or their properties. Counsel for both parties referred to Big Brother Movement Ltd v Richard Stanton & Sons Pty Limited [1989] ANZ Conv R 153. The decision in that case acknowledged that in some circumstances it is possible to introduce a person, the eventual purchaser, to the property on more than one occasion.

109 In Big Brother Movement (supra), the majority held that the agent in question had not introduced the purchaser to the vendor, the introduction having occurred before the agency agreement was signed. The purchaser had also contacted the vendor expressing its interest in the property prior to the vendor entering into an agency agreement. In coming to its decision, it was considered significant that the interest of the purchaser never waned from its initial expression of interest (preceding the agency agreement and efforts of the agent) through to the eventual sale of the land: see Big Brother Movement (supra) at 159 per Rogers AJA. On the facts of that case it could not be said that the efforts of the agent somehow enlivened the interest of the eventual purchaser such that the relevant “introduction” was that occasioned by the agent after the execution of the agency agreement.

110 In the present matter, little evidence was presented regarding the course of Wardrop Valley Pty Limited’s interest in the defendants’ properties. Mr Scruby emphasised, as I have previously noted, that negotiations between Wardrop Valley Pty Limited and the defendants had been on foot since 2002. Agency agreements between the plaintiff and the defendants were signed on 22 July 2005, the agent commencing contact with Wardrop Valley Pty Limited (or specifically, the Dickinsons) on 9 August 2005 and sale of the properties by the defendants to Wardrop occurring in or about June 2007. There is, in my opinion, insufficient evidence as to the level and nature of the purchaser’s interest prior to 22 July 2005 in the properties against which to gauge the impact or effect, if any, of Mr Cahill’s efforts on the interest of Wardrop in the defendants’ properties.

111 Mr Scruby submitted that the plaintiff’s claim for commission was put upon the basis that it had introduced the purchaser to the concept of a block purchase: Written Submissions of the Defendant at [21]. This, the defendants contended, was irrelevant to the determination of any entitlement to commission as “commission is payable under the agreements in the event that a purchaser is introduced to the property, not to concepts in relation to the property”: Written Submissions of the Defendant at [21]. In view of the reasoning of Rogers AJA in Big Brother Movement (supra), whether or not it can be argued that the concept of a “block purchase” as claimed by Mr Cahill was a fact that may be taken into account in determining whether there has been an effective introduction in the sense of being instrumental in establishing or enlivening Wardrop Valley Pty Limited’s interest in purchasing the defendants’ land (and its interest in the two neighbouring properties) is a matter that, in my opinion, can only be established by a final hearing on the merits.

112 Without evidence directed to the course of Wardrop Valley Pty Limited’s interest in the defendants’ properties and the impact of the plaintiff’s “block purchase” concept on Wardrop’s decision to purchase, I do not consider that the defendants have established that the plaintiff has no reasonably arguable claim to commission.

113 Accordingly, in all the circumstances I do not consider that the defendants have established that a grant of relief by this Court would be futile. I am of the opinion on the basis of the findings and conclusions expressed above that the plaintiff is entitled to the orders sought.

Orders

114 An order that the record of proceedings of the Consumer Trader and Tenancy Tribunal in proceedings numbered COM 07/50282, COM 07/49717 and COM 07/49721 and the orders made in each of the proceedings on 26 October 2007 be delivered up to this Court so that an order in the nature of certiorari can be made correcting the record and quashing the said orders made by the CTTT.

115 An order that the orders made in proceedings numbered COM 07/50282, COM 07/49717 and COM 07/49721 on 26 October 2007 be quashed and set aside.

116 An order that each of the matters numbered COM 07/50282, COM 97/49717 and COM 07/49721 be remitted to the CTTT for re-hearing according to law.

117 I grant leave to the parties to lodge within 14 days any written submission on costs.

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12/11/2008 - Correction of CTTT proceedings number - COM 07/57290 deleted; COM 07/50282 inserted. - Paragraph(s) Cover sheet, [114], [115], [116]