Burton v Referee, Small Claims Tribunal, Gympie

[1997] QSC 226

IN THE SUPREME COURT
OF QUEENSLAND

No.788 of 1994

Brisbane

Before the Hon. Mr Justice Mackenzie

[Burton v. Referee, Small Claims Tribunal, Gympie]

BETWEEN:
  DOUGLAS JEFFREY BURTON
  Applicant

AND:
  REFEREE, SMALL CLAIMS TRIBUNAL, GYMPIE
  First Respondent

AND:
  GYMPIE BUILDING COMPANY PTY LTD
  Second Respondent

CATCHWORDS:  JUDICIAL REVIEW - natural justice - procedural fairness - decision of SCT in respect of award for building works - whether breach of hearing rule - right of tribunal to regulate proceedings - party not allowed to put case in precise order or detail party wishes - whether bias evident from degree of reduction of applicant’s claim and acceptance of respondent’s estimate over applicant’s - whether order was fair and equitable in the circumstances:  Referee enquired about the monetary difference in assessing the claim on a cost or value basis, estimate given by respondent only which was not mechanically applied to achieve the sum awarded.

Counsel:Applicant appeared on his own behalf.

Ms J.E. Sligo for the first respondent.
Second respondent appeared by its Managing Director Mr P.J. Lohse.

Solicitors:Applicant appeared on his own behalf.

Crown Solicitor for the first respondent.  
Second respondent appeared by its Managing Director.

Hearing date:          4 December 1997

JUDGMENT - MACKENZIE J.

Judgment delivered 10 December 1997

The applicant has applied for review of a decision of the Small Claims Tribunal, Gympie on 24 October 1994 in which he was awarded $100 in respect of his claim and $57 costs against the respondent company which had built a lavatory for him at business premises in Gympie. The contract was completed in late 1987 but the claim was not instituted until 11 September 1994. The application for review was filed on 17 November 1994 but remained quiescent, following dismissal by Fryberg J of an application under s.48 of the Judicial Review Act on 6 January 1995, until September 1997, apparently because the applicant was preoccupied with other things including sale of the premises as an adjunct to which the lavatory had been constructed.  The applicant volunteered that the sale of the premises had recently occurred, and said that the lavatory had not been repaired prior to the sale. 

The applicant argued the matter in person.  The respondent Gympie Building Company was represented by its managing director Mr Lohse.  The Referee indicated through a solicitor from the Crown Law Office that he would abide the order of the court and leave was given to the legal representative to withdraw on that basis with the right being reserved to make submissions as to costs.  Because of these factors some latitude was extended to the parties in the way submissions were presented. 

The invoice as presented to the applicant included an item “to construct D/Toilet Block as quoted”.  The quotation referred to constructing a “double toilet block 3 metres x 2 metres with concrete floor 100 millimetres thick and coved concrete upstands under partitions, walls to be sheeted with 4.5 millimetre thick hardiflex”.  A substantial issue before the Referee was the meaning of the words “concrete upstands under partitions”.  According to Mr Lohse that reference was to be understood in terms of the following passage in one of his affidavits:-

“In a quotation given by my company, a concrete upstand was included.  This means that a small concrete lip is placed on the floor and then a wall is placed on top of that (“the first method”).  The alternate method of construction is to place the wall directly on to the floor and put a cover strip abridging the wall and the floor and seal the top of the cover strip with silicon to prevent any moisture penetration (“the second method”).  The plans provided by the Applicant did not disclose which method was to be followed.

The construction was in accordance with the second method.”

It is common ground that the second method of construction was used.  The applicant on the other hand said that the quotation required the first method to be used.  By agreement of the parties  I have had resort to a sketch prepared after the hearing in the Small Claims Tribunal by the applicant to aid my understanding of the two different methods.  It is common ground that the second method involves greater difficulty in replacing wall sheeting in the event that that becomes necessary although precisely what would be necessarily involved was in dispute. 

The applicant outlined five areas of complaint against the Referee’s conduct of the matter.  The first was whether or not he had allowed the applicant to say all that he wished to say.  The second was whether the Referee showed bias in favour of the respondent company.  The third was whether the Referee based his decision on “proven damages evidence”.  The fourth was whether he had erred in law by making an award on a cost basis instead of a value basis and the fifth was an alleged error of fact in that it was said to be obvious that the difference in price between the two methods of construction was far more than $80 or $100. 

The thrust of the complaint about limiting what the applicant wished to say is based on the proposition that the Referee had not permitted the applicant to present his case in as much detail as he had wished, and that, although the applicant wished to enlarge upon his submissions, the Referee intervened and brought the proceedings to a swift conclusion.  The applicant’s complaint includes that he had been prevented from explaining in detail how he calculated the sum of $2,800 as the cost of rebuilding.  What happened was that the Referee asked the applicant what he said the difference in cost between the two methods of construction was.  The applicant said that he was unprepared for this and did not give an answer directly responsive to the question, whereupon the Referee asked Mr Lohse what his estimate was.  Mr Lohse replied to the effect that there was about $80 difference.  The Referee then said that he would award $100 for the claim and $57 costs, remarking that the applicant had had 6 years use out of the facility. .

It is common ground that the hearing had lasted 1½ hours and that evidence had been taken from the applicant, Mr Lohse and two of his employees.  Where it is alleged that a person has been denied procedural fairness by denial of the right to put his case, ordinarily there will be something which shows with sufficient clarity that that had happened.  The right to put one’s case and the right of a tribunal to regulate proceedings before it coexist.  A decision maker who exercises the right to regulate proceedings does not improperly inhibit the former merely because, having given the parties the opportunity to put the essence of their cases sufficiently, he or she does not allow a party to put the case in precisely the order or degree of detail that the party wishes.  In the end, the point at which a denial of procedural fairness or natural justice occurs is a question of degree.  On the material before me I am far from convinced that the applicant was denied the opportunity to put the essence of his case adequately and that aspect of his argument fails.

So far as bias is concerned, the applicant said it was self-evident from the result that there was bias.  He agreed with the proposition that the basis of his argument was that the bias was demonstrated by the degree of reduction in his claim.  He also said that it was evident in the fact that  the Referee chose to accept Mr Lohse’s estimate in preference to his submission.  There is nothing in the material before me that suggests ostensible partisanship, personal prejudice or pre-judgment on the part of the Referee.  Nor is there anything in the way in which the proceedings were conducted that suggests bias.  There is nothing in my view which suggests that a reasonable observer would apprehend that the decision maker might not or would not resolve the issues with a fair and unprejudiced mind.  There is no basis upon which the applicant can succeed on this ground.  It is commonplace in the courts for evidence or submissions of one party to be accepted in preference to that of the other side without any suggestion whatsoever of real or perceived bias. 

With respect to the other three grounds I assume for the purpose of the matter that the privitive  clauses in ss.18 and 19 of the Small Claims Tribunal Act 1973 do not exclude them as relevant grounds.  The Referee’s function under s.10 of the Small Claims Tribunal Act, if it was impossible to reach a settlement acceptable to all parties, was to make such an order as was fair and equitable.  It is accepted by the applicant that he and Mr Lohse were placed on oath for the purposes of the hearing.  The applicant accepts that he did not give a response directly to the question concerning the relative costs of the methods of construction when asked by the Referee whereas Mr Lohse did.  It is apparent from the decision that the Referee did not mechanically apply that figure to the award made.  He awarded a different sum.  It is true that he had enquired about the difference in costs between the two methods.  It may be that he had in mind that if there was a cost difference, the applicant had been overcharged by that amount.  It may be that he was seeking some sort of a baseline upon which he might determine a fair and equitable order as between the parties.  Ordinarily although not always, in a proceeding for breach of contract the measure of damages would be the difference in value between the structure as constructed and the value of a structure constructed as it should have been according to the contract.  It may be the total value of the structure if the structure actually built was unusable which was not the case here.  Apart from the applicant’s statement that he had been told by a builder that he would not do the repair work except on the basis that he demolished the structure and built it again there is no basis in the material for drawing the conclusion that such a course was necessary.  The Referee was entitled to think that cheaper alternatives were available.

Having regard to these factors and the fact that the Referee did not award the amount which was given as an estimate by Mr Lohse it is impossible to conclude that he did other than discharge his function of considering the matter on the basis of what was a fair and equitable order.  The application is dismissed.