David Harris & Deidre Harris t/as Wellington Concrete v Mayne
[2011] NSWSC 1551
•16 December 2011
Supreme Court
New South Wales
Medium Neutral Citation: David Harris & Deidre Harris t/as Wellington Concrete v Mayne [2011] NSWSC 1551 Hearing dates: 6 December 2011 Decision date: 16 December 2011 Jurisdiction: Common Law Before: Davies J Decision: 1. An order in the nature of certiorari removing into the Court the determination of the Consumer, Trader and Tenancy Tribunal made 14 July, 2011 in File No HB 10/50297 and quashing that determination.
2. The matter be remitted to the Tribunal to be determined in accordance with law.
3. The Defendants are to pay the Plaintiffs' costs.
4. The Defendants are to have a certificate under the Suitors Fund Act 1951 if otherwise so entitled.
Catchwords: ADMINISTRATIVE LAW - judicial review -prerogative writs and orders - certiorari and mandamus - administrative tribunals -Consumer, Trader and Tenancy Tribunal - jurisdictional error - procedural fairness - no notice of hearing - refusal of adjournment. Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001
Consumer, Trader and Tenancy Tribunal Regulation 2009
Interpretation Act 1987
Suitors' Fund Act 1951Cases Cited: Blue Haven and Spas Pty Ltd v Cunningham [2011] NSWSC 1435
Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298 House v R (1936) 55 CLR 499
Italiano v Carbone [2005] NSWCA 177
Kelly v Chulio [2007] NSWSC 677
Maconachie v Kullenberg [2005] NSWCA 294
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1Category: Principal judgment Parties: David Harris & Deidre Harris t/as Wellington Concrete (Plaintiffs)
Rick Mayne (First Defendant)
Yvette Mayne (Second Defendant)Representation: D Godwin (Plaintiffs)
P Knowles (Defendants)
Peter Merity Solicitor Pty Ltd (Plaintiffs)
Nelson Keane & Hemingway (Defendants)
File Number(s): 2011/256409
Judgment
The Plaintiffs seek prerogative relief on the basis that the Consumer Trader and Tenancy Tribunal determined a matter, in which they were Respondents, in their absence.
Background
The Plaintiffs carry on the business of Wellington Concreting. Mr Harris is a licensed concreter and his partner, Deidre Miller, carries out a number of administrative tasks in respect of the business.
In about January 2009 the Plaintiffs entered into a contract to construct a concrete stamped driveway at the residence of the Defendants at 10 Horison Place, Dubbo. The work was carried out between March and May 2009 pursuant to a quotation of $14,000, and the Plaintiffs were paid about $18,000 because of some variations to the work.
Disputes subsequently arose when the Defendants were not happy with the work that had been done. The Defendants lodged an application with the CTTT on 27 October 2010. They claimed an amount of $104,500 to have the work corrected.
On 8 February 2011 the matter was first listed at the CTTT where directions were made for the filing and service of evidence.
Subsequently the matter was listed for a telephone directions hearing on 4 April 2011. Because Mr Harris was having difficulty engaging an engineer to attend the property to inspect the work and prepare an expert's report he sought in writing from the CTTT an extension of time to comply with the orders of 8 February 2011. He was informed that further directions could be made at the directions hearing on 4 April 2011.
At that directions hearing Mr Harris sought and was granted an extension of time to file and serve his evidence in reply. He was given until 18 April 2011.
On 7 April 2011 the CTTT sent a notice of hearing to the parties fixing the matter for 13 July 2011 at 9.15am in Dubbo.
Because Mr Harris was still having difficulty obtaining an expert report from an engineer he wrote a letter to the CTTT on 5 July 2011 as follows:
TO CTTT TRIBUNAL
FILE NO 10/50297
In relation to the claim made by Rick and Yvette Mayne against David Harris Wellington Concreting.
I am listed for a hearing on Wednesday 13th July in Dubbo. I have contacted NRMA who I was insured with Claim No 10/10908/N52. They have contacted Brian Bugden from Echelon who has already contacted Rick and Yvette Mayne and is organizing a structural engineer to go around in the next couple of weeks.
Could this hearing be adjourned for another month so as to have the results and be able to work out some sort of resolution.
He did not receive a reply to this letter.
On 13 July 2011 Mr Harris attended at the Tribunal in Dubbo at 9.15am. The Member presiding at the hearing said to him words to the effect:
"Your matter is not listed today. It's on tomorrow, 14 July 2011.
Mr Harris replied to this effect:
But I received a notice from the Tribunal telling me that it's listed today. I can't come tomorrow, I have work on at the Gulgong Public School that I have to finish before school goes back. Can the hearing be adjourned? Or can it be listed for telephone directions? I can't come in tomorrow.
The Member replied:
You'll have to put your request in writing.
Mr Harris then went to the front desk at the Office of Fair Trading, where the Tribunal was sitting, and an officer assisted him to write a request to adjourn the hearing. The request was as follows:
URGENT REQUEST
MY FILE # HB10-50297
Dave Harris 0408231069
Request phone hearing on 14 July @ 9:15am at Dubbo Fair Trading. Because of urgent work at Gulgong High School need to get work done there before Monday 18 July. Originally thought hearing was on the 13 th July as per CTTT letter I received so arranged work around that date. Please for your consideration. I can be contacted on above phone number.
The letter was sent by facsimile to the Tamworth Registry of the CTTT by the officer, and a copy of the letter was handed to the Member presiding on 13 July. The fax mark on the letter shows that it was faxed at 9:34am on that day. The letter has 2 "Received" stamps, one at Dubbo and one at Tamworth both dated 13 July.
Mr Harris did not receive a reply from the CTTT either in writing or by telephone. As will become clear, nor did anyone within the CTTT's organisation ensure that this fax (or, for that matter, Mr Harris's letter of 5 July) was, in a timely manner, brought to the attention of the Member who presided over the hearing.
The hearing
Mr Harris did not attend the hearing on 14 July as he had the prior work commitments that he mentioned both to the Member and in the letter. Nevertheless, the hearing proceeded on 14 July in his absence.
Subsequently the Plaintiffs received a letter from the Tribunal being a Notice of Order. The Order required the Plaintiffs to pay to the Defendants the sum of $97,905.00 on or before 12 August 2011.
In the Reasons for Decision attached to the Notice of Order the following appears:
i) The Respondent's applications of 5/7/11 for an adjournment and of 14/7/11 (received after the hearing had proceeded for approx 90 minutes) for a phone hearing were declined. The Respondent had ample time prior to the hearing to comply with Directions of 8/2/11 and 4/4/11 and to make suitable arrangements to attend the hearing. No submissions were received from the Respondent pursuant to the Directions. The Tribunal found that any further delay by the Respondent would prejudice the Applicants.
On 27 July 2011, after the CTTT had been forwarded a letter by the Plaintiffs' solicitor, it sent copies of documents it said had been sent to the Plaintiffs concerning the adjournment of the hearing on 13 July and the appointment of 14 July as the new hearing date. Each of the letters is dated 3 June 2011 and each is addressed to:
David Harris Wellington Concrete
6 Gisborne Lane
Wellington NSW 2820
The transcript relevantly records the following matters in relation to the absence of the Plaintiffs from the hearing. At page 2 the following appears:
MEMBER: Sorry. These proceedings are recorded. There's a small microphone on the table. Now I have before me Mr and Mrs Mayne, is that correct?
MRS MAYNE: Yes.
MEMBER: In person. Respondent David Harris, there's no appearance. Now the procedure is normally I get the applicant to give their evidence and then for the respondent to respond to that and for the applicant to call any witnesses, which I note that you have today. However there's no appearance of the respondent, but I still need to be satisfied without - I must hear your side of the story and I must be satisfied of things, damages that have been suffered. So you still have to prove your case.
At page 44 the Presiding Member and the expert for the Defendants, Mr Cook, were engaged in an exchange when the Member is recorded as saying "Just one moment". It seems clear from what follows a little further on that it was at that point that the Member was first alerted to the fax sent by Mr Harris on the previous day and perhaps (it is not clear, but see paragraph [17] above) the letter of 5 July. The transcript obviously does not record everything that was said but the following parts of the transcript seem to indicate that the Defendants and their expert were shown a copy of the fax. At pages 45 and 46 the following is recorded:
MR MAYNE: I should be at work, too, by the way.
MR COOK: Yeah, yeah.
MRS MAYNE: Yeah, I know, exactly.
MEMBER: Thank you.
MR COOK: It's good of him to send somebody at 10 to 11, it's ... (not transcribable)... It could've been sent last night or something.
MEMBER: One a half hours into the hearing. So you object to this?
MRS MAYNE: Yes. He's been given every chance to get organised. Just like us.
MR MAYNE: Mate, it's ...(not transcribable) ...
MRS MAYNE: We have six kids. We - we have to organise structure, business.
MR MAYNE: What's this been going now? Six months.
MRS MAYNE: Longer.
MR COOK: And he hasn't complied with any directions, either.
MRS MAYNE: No. No. Nothing, there's been-
MR COOK: Can I possibly have another quick look at that, if you don't mind?
MRS MAYNE: There's been nothing.
MR MAYNE: Not a phone call, not a bit of piece of paper; he's done nothing.
MRS MAYNE: No. He's put it off and put it off. I think he thought we were going to go away.
MEMBER: Yes. Yes, no, it's all right. Yes. I gather that you object to it.
MRS MAYNE: Yes.
MR COOK: I'll give you a couple of those. I was just looking for a send number on it.
MEMBER: What?
MR COOK: I was looking for a send number to see if it was sent from Gulgong.
MEMBER: It doesn't appear to be.
MR COOK: It's gone through the Registry.
MR MAYNE: He has more lives than a cat, this guy.
MR COOK: Who thinks they can tell him what to do.
MR MAYNE: What's he doing now?
MRS MAYNE: He can see we object to it, but we'll just see.
MR MAYNE: We object big time.
MRS MAYNE: He only sent it yesterday.
MR COOK: No, it's today, isn't it?
MRS MAYNE: The 13th, so yesterday, he sent it to me yesterday.
MR MAYNE: What? He can just make a phone call and actually completely -just turn things right around. He's supposed to be here today.
MRS MAYNE: That's right.
MR COOK: Yes. No, that's all right.
MEMBER: So I'll just mention for the benefit of the tape that at 10.50 a faxed letter was received from the respondent which states that because of an urgent work at Gulgong High School he needed to get to work there and finish it before Monday the 18th of July. And that he originally thought the matter was on the 13th, but the Tribunal notes that correspondence was forwarded to him informing of the alternate [sic] date . He's seeking a phone hearing for today. That's not possible because the matter has been now going for an hour and a half.
There's a strong objection to this by the applicant who points out that there have been previous telephone hearings for directions. Directions have been given and extended at the request of the respondent, but to date there has been no evidence that's been produced in accordance with those directions and it appears as though it may be another attempt to have the matter delayed. The Tribunal is not satisfied that the request for the adjournment or the phone hearing is appropriate, and accordingly, will continue with the hearing as it is today.
MRS MAYNE: Yeah.
MR COOK: When did you receive notification of the change from the 3rd to the 14th?
MRS MAYNE: A month ago. Yes, it was six weeks ago.
MEMBER: No, you would've received it 3 June, so it would've been a couple of days after that.
MRS MAYNE: Yeah.
MEMBER: Yes, that's all right. I just need to do that formal. Now I must apologise for that interruption... (emphasis added)
It should be noted that Mr Cook was the Defendants' expert witness. What business he had in entering into the debate about the Plaintiffs' non-attendance was not explained. It scarcely appears, in the light of that involvement, that he was an objective witness giving evidence about matters within his expertise rather than being an advocate for those who retained him.
Finally, in what appears to be the Reasons for his decision the Presiding Member said this (at p 53):
The respondent, there was no appearance by the respondent. No submissions were provided by the respondent, despite directions that were made on 8 February and also on 4 April. During one of those hearings the direction date was extended at the request of the respondent to enable him to be able to comply and this has occurred over 3 months ago and there is still no evidence that has been provided by him.
A letter dated 5 July was received from the Registry from the respondent requesting an adjournment as he was arranging for a structural engineer. No details of this have been provided to the applicant. A copy of it was provided to the applicant before the commencement of the hearing. The applicant objected to that on the basis that the matter had been set down for hearing and ample time had been given for that evidence to be done. The Tribunal accepts that argument and commenced the hearing in accordance with the matter that had been set down.
Almost at the end of the evidence that was given by the applicant, and that's the applicant's evidence in relation to this matter, that was one and a half hours into the hearing. A request was received by the Member from the respondent seeking a phone interview due to work commitments. Now both the requests by the respondent to the adjournment or the phone hearing were strongly objected to by the applicant. The respondent had been given plenty of time to arrange attendance and to produce evidence, including an extension of time at this request on 4 April. It appears to be a delaying tactic.
The Tribunal, after giving consideration to that submission, does not accept the respondent's request for an adjournment or a phone hearing and the reasons stated as being sufficient to justify those matters. Accordingly, the matter is to continue to proceed. It is noted that the applicant's evidence was almost completed when the request for the phone hearing was sought and justice in the case requires the matter to continue today.
The legislation
The relevant provisions of the Consumer, Trader and Tenancy Tribunal Act 2001 are these:
25 Notice of proceedings
(1) If any proceedings are to be determined by a hearing, the Registrar must cause notice of the time and place that is fixed for the hearing to be given to each party in the proceedings.
(2) 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.
...
28 Procedure of Tribunal generally
(1) The Tribunal may, subject to this Act, determine its own procedure.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness.
(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) The Tribunal is to take such measures as are 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.
(5) The Tribunal:
(a) is to act as expeditiously as is practicable, and
(b) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and
(d) in the case of a hearing-may require the presentation of the respective cases of the parties in proceedings to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and
(e) may require a document to be served outside the State, and
(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and
(g) may dismiss any proceedings if the applicant fails to attend a hearing, and
(h) must, if requested by the applicant, allow the applicant to withdraw the application, and
(i) may dismiss any proceedings if it considers the proceedings to be frivolous or vexatious or for any other reason that appears to it sufficient, and
(j) may order that any proceedings are to be stayed.
...
32 Amendments and irregularities
(1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice.
(2) Any such amendment may be made:
(a) at any stage of the proceedings, and
(b) on such terms as the Tribunal thinks fit, but may only be made after notifying the party to whom the amendment relates.
(3) If a provision of this Act or the regulations is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal otherwise determines.
(4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.
...
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 present the party's case (whether at a hearing or otherwise), and
(b) to make submissions in relation to the issues in the proceedings.
...
38 Oral evidence by telephone etc
(1) The Tribunal may allow a person to appear before it, or to give evidence in any proceedings, and may conduct any aspect of its proceedings, by telephone, audio visual link or any other means of communication.
(2) If, any case where proceedings are held in public, a person appears or gives evidence by any means referred to in subsection (1), the Tribunal is to take such steps as are reasonably necessary to ensure that the public nature of the proceedings is preserved and that the rights of all the parties in the proceedings are not prejudiced.
...
78 Notices, service and lodgment of documents
(1) For the purposes of this Act, a notice or document may be given to a person (and a document may be served on a person):
(a) in the case of a natural person - by:
(i) delivering it to the person personally, or
(ii) leaving it at, or by sending it by post to, the residential or business address, or other address for service, of the person that was last known to the person giving or serving the document, or
(b) in the case of a body corporate-by leaving it at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate, or
(c) in the case of a Government Department-by leaving it at, or by sending it by post to, any office of that Department addressed to the head of the Government Department.
(2) A notice or other document may be served on the Tribunal by leaving it at, or by sending it by post to (or a document that is required or permitted to be lodged with the Tribunal may be lodged at):
(a) the office of the Registrar, or
(b) if the Registrar has more than one office, any one of those offices.
(3) Nothing in this section affects the operation of any provision of any law or the rules of a court authorising a document to be served in a manner not provided for by this section.
(4) The regulations may:
(a) provide for additional means of serving, giving or lodging any notice or document, and
(b) provide that a notice or document of a class specified by the regulations be served, given or lodged only in the prescribed manner.
In addition, clauses 30 and 50 of the Consumer, Trader and Tenancy Tribunal Regulation 2009 provide:
30 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 50 (6),
the Tribunal considers that justice requires that the matter be dealt with in the absence of the party concerned.
(2) If a matter is adjourned by the Tribunal in the absence of a party, the Registrar is to give notice of the time and place of the adjourned hearing to the absent party. If the party who is so notified fails to attend the hearing, the matter may be dealt with in the absence of the party.
...
50 Service of documents
(1) An application for the purposes of any proceedings must be served on each of the other parties within a reasonable time before the return date endorsed on the application by the Registrar or in accordance with directions under subclause (6).
(2) Service of a summons is to be effected:
(a) personally, or
(b) in the case of a company:
(i) by ordinary post addressed to the company's registered office, or
(ii) by leaving a copy with a person who is apparently of or above the age of 16 years at the company's registered office.
(3) Service of any other document may be effected in any manner provided by section 78 of the Act or in any of the following ways:
(a) if the person has an address for service on record with the Registry:
(i) by pre-paid ordinary post addressed to the person's address for service, or
(ii) if the person's address for service is a box in a document exchange, in New South Wales, of Ausde Pty Ltd, by leaving a copy in that exchange box or in another exchange box for transmission to that exchange box,
(b) in such other manner as may be directed by the Chairperson, a Deputy Chairperson or the Registrar in a particular case.
(4) Service by post is taken to have been effected on a person at the end of the fourth working day after the date on which the document was posted to the person.
(5) Service by document exchange is taken to have been effected on a person at the end of the second working day after the date on which the document was left in the person's exchange box or, if the document is left at some other exchange box for transmission to the person's exchange box, in that other exchange box.
(6) The Chairperson, a Deputy Chairperson or the Registrar may, without hearing from the other parties, do any one or more of the following:
(a) direct a party to serve an application or any other document on a person who is not a party,
(b) direct substituted service to be effected in such manner as the Chairperson, Deputy Chairperson or Registrar considers appropriate,
(c) reduce (subject to any relevant Act or law) the time within which service must be effected.
(7) This clause has effect subject to the provisions of any Act or law or of any directions of the Chairperson under section 24 (3) of the Act.
In addition, s 65 of the Act precludes judicial review except on the basis that the CTTT lacked jurisdiction or denied procedural fairness. They are the 2 bases upon which relief is sought in this case.
Submissions
The Plaintiffs submitted that as a result of the failure of the Tribunal to give notice to the Plaintiffs of the hearing of 14 July 2011 the Tribunal lacked jurisdiction to hear the matter. Alternatively, the Plaintiff submitted that if the Tribunal had jurisdiction it failed to afford procedural fairness to the Plaintiff in all of the circumstances.
The Defendants submitted that there was no absence of jurisdiction because of the wide powers given to the Tribunal to control its own procedures. The issue was one of determining whether the Tribunal misapplied its discretion to refuse the Plaintiff's applications. In reviewing the Tribunal's decision, it was submitted, this Court must not only apply the principles in House v R (1936) 55 CLR 499 but also take into account the Tribunal's considerable powers to determine its own procedures.
The Defendants submitted that the Plaintiffs were given notice on 13 July of the hearing on 14 July, but they did not avail themselves of the opportunity to attend and present their case. The Defendants submitted that in those circumstances the Tribunal had the power to conduct the hearing in the absence of the Plaintiffs particularly because it satisfied itself that notice had been duly given.
Finally, the Defendants submitted that there is no evidence before this Court of what information or submission the Plaintiffs could have put to the Tribunal which would have countered the submissions put by the Defendants. Accordingly, the Plaintiffs have not shown that they were deprived of an opportunity to do that. Reliance was particularly placed in this regard on Kelly v Chulio [2007] NSWSC 677.
Did the Plaintiffs receive notice?
It must first be determined if the Plaintiffs received notice of the hearing. Nothing in the provisions of the CTTT Act or the Regulation precludes the giving of such evidence in this Court because Regulation 50(4) is inconsistent with, or at least subject to, s 76 Interpretation Act 1987 which allows such evidence to be adduced: Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298 at [16], [50], [54] and [80]; Blue Haven and Spas Pty Ltd v Cunningham [2011] NSWSC 1435 at [31].
Mr Harris gave evidence that he did not receive the Notice vacating the hearing of 13 July nor the Notice appointing 14 July as the hearing date. I note that both such Notices contain his correct address. On the face of the matter it seems unusual that he did not receive them especially when other notices from the CTTT similarly addressed were received. On the other hand, there was no evidence that tended to show that the Notices had in fact been sent by the CTTT to the Plaintiffs prior to their being forwarded on 27 July at the request of the Plaintiffs' solicitor. The mere fact that a copy of the Notices was to be found on the file of the CTTT is no proof at all that the Notices were ever forwarded to the Plaintiffs. This was a matter commented upon in Brennan at [35], but Basten JA noted that the primary Judge found the CTTT had sent the relevant Notice in that case although there was no evidence to that effect.
In my opinion, Mr Harris was an honest and straightforward witness. There was an attack on his credit because he accepted that his statement in paragraph 13 of his affidavit of 10 September 2011 was wrong in saying he did not receive any communication from the Defendants until he received the CTTT Application. He accepted that Mr Mayne had rung him before receipt of the CTTT Application. I do not consider that this error, which was an error of an unimportant detail, demonstrates that his evidence generally should not be accepted.
I accept his evidence that the Notices concerned were never received by the Plaintiffs. There is some objective support for that by reason of the fact that the Notices were dated 3 June 2011, but on 5 July Mr Harris wrote to the Tribunal asking for the date of 13 July to be altered. Further, he attended at the Tribunal on 13 July believing that that was the date for the hearing when he had not received a response to his letter of 5 July. Those matters point strongly to the fact that he had not received the Notices from the Court vacating 13 July and appointing 14 July as the hearing date. There would simply be no point in writing on 5 July, and attending on 13 July, if he had received the Notices vacating 13 July and appointing 14 July for the hearing.
Did the Tribunal have jurisdiction?
The next matter to be determined is whether the oral notification Mr Harris was given by the Tribunal Member on 13 July was sufficient to enable the CTTT to proceed to hear the matter in his absence on 14 July. Section 25 required the Registrar to give notice of the time and place fixed for the hearing. Even if I put out of consideration the evidence of Mr Harris that no such Notice was received, there is no evidence, as I have said, that the Registrar caused Notice of the time and place fixed for the hearing to be given to the Plaintiffs.
The requirement in s 25(1) is mandatory. A proceeding may only be held in the absence of a party (under s 25(2)) if s 25(1) has been complied with. Where notice has not been given neither s 25(2) nor cl 30 is engaged: Brennan at [65] and [66]. This is not a case of an adjourned hearing being fixed in the presence of the parties where notification under s 25 is not required: Brennan at [40].
Moreover, even if cl 30 of the Regulation was engaged there was no evidence from anything contained in the transcript of the hearing before the CTTT or otherwise that the CTTT had satisfied itself that Notice of the hearing was duly served on the party or had been attempted as cl 30 (1) requires: Blue Haven at [31]. The highlighted portion in paragraph [20] above is a mere ipse dixit by the presiding Member, presumably because copies of the Notices were on the file. There is nothing to suggest that any enquiry was made to ascertain that the correspondence had been forwarded to the Plaintiffs and whether it was appropriate to proceed in the Plaintiffs' absence: Blue Haven at [31].
Nor can the provisions of s 32(3) of the Act operate to transform the procedural failures into a mere irregularity because the failures mean that the basic requirements of procedural fairness have not been followed: Italiano v Carbone [2005] NSWCA 177 at [115]; Maconachie v Kullenberg [2005] NSWCA 294 at [49] - [51].
Further, the evidence discloses that the CTTT did not ensure that the Plaintiffs were given a reasonable opportunity to call or give evidence, present their case and make submissions (s 35). This is because the first time the Plaintiffs knew that the case was to be heard on 14 July was on 13 July. That, in itself, was not a reasonable opportunity. But when that is coupled with the CTTT's knowledge (both by Mr Harris's oral statements to the Tribunal Member on 13 July and his fax to the CTTT of the same date) that Mr Harris had organised work commitments (which could not be altered or easily altered) around 13 July, the date the CTTT had notified him on which the hearing would be held, the unreasonableness of requiring his attendance on 14 July was considerably magnified. Such a failure is jurisdictional: Maconachie v Kullenberg at [51].
For these reasons the CTTT lacked jurisdiction to determine the matter. The Defendants accepted, correctly, that in such circumstances the Plaintiffs were not obliged to demonstrate that they were deprived of any opportunity to put evidence or submissions to the CTTT.
Was there procedural unfairness within jurisdiction?
Whilst not strictly necessary to do so I should consider whether, if the CTTT had jurisdiction it nevertheless failed to accord procedural fairness to the Plaintiffs in (1) failing to inform them of the changed hearing date prior to 13 July, and (2) failing to grant an adjournment of the hearing fixed for 14 July. In a sense these 2 matters should be considered together because the late notification was a particular reason for the adjournment application. I accept that the minimum requirement of fairness, consistent with a legal exercise of power, will depend not only on the circumstances of the case, but also on the statutory regime: Italiano v Carbone at [102].
In my opinion it cannot be said that procedural fairness was afforded to the Plaintiffs by giving one day's notice of a new hearing date. Two matters in the Act and Regulation provide support for that view. First, cl 50(4) in the Regulation deems the 4 th working day after posting notices by the CTTT to be the date on which a notice is served. Even in the case of a person with a document exchange 2 working days are allowed: sub cl (5). Secondly, s 35 speaks of parties being given a "reasonable opportunity" to call evidence and present their case. Given that that may involve the CTTT issuing a Summons to a witness to appear (ss 39 & 40) it is plain beyond argument that one day's notice is not a reasonable opportunity.
Mr Harris informed the CTTT on 13 July both orally and in writing that he has work commitments that were difficult to alter which he had made on the basis of the hearing taking place on 13 July. He explained what those commitments were. He gave evidence before me about them and why he could not alter them. I accept his evidence in that regard. It was not improbable. There was no suggestion made to him that he did not have such commitments. In that way the objection made to annexure "Q" to his first affidavit falls away.
What was put to him was that he could have made other arrangements after being informed on 13 July that the hearing was the next day. In my opinion it was entirely unreasonable to expect him to have done so in the circumstances. He was the only concreter engaged for the 14 July job. He had seen the relevant site. It would be difficult to explain to someone else precisely what had to be done. He may well have broken his contract with those who had engaged him if he did not carry out the work himself. He said it had to be done that day because of the deadline arising from school term commencing on 18 July.
I accept the submissions of the Plaintiffs that the CTTT considered the adjournment application based on a number of misconceptions. It believed that Mr Harris had faxed the request during the morning of 14 July and well into the hearing. It gave no indication that it understood Mr Harris had attended the previous day believing that was the day for hearing, nor that he had been advised to fax a written request for an adjournment which he did promptly. Rather, it appears to have believed that the Plaintiffs were notified of the hearing on 14 July. Under those misconceptions it characterised his request as a "delaying tactic".
If it is necessary for the Plaintiffs to demonstrate errors of the House v R kind, they have done so by reason of taking into account considerations that were irrelevant because they were not true. The Plaintiffs demonstrate, therefore, that they were denied procedural fairness in the CTTT's consideration of their adjournment application.
If there is a necessity in the present case for the Plaintiffs to show, in addition, that they have been denied an opportunity in terms of s 35 or otherwise ( Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [36]-[38]; Italiano v Carbone at [88]) I consider that they have done so. The circumstances in Kelly v Chulio (relied on by the Defendants) were significantly different from the present case. I am prepared to assume, however, that the approach of Hoeben J at [36] should be applied here. Although the Plaintiffs led no evidence before me of what expert evidence they might have relied upon (except some hearsay evidence in paragraph 12 of Mr Harris's affidavit of 10 September 2011 which was objected to and which I will disregard), what the Plaintiffs were deprived of was the evidence of Mr Harris and the submissions he would have made. There was material in the affidavits showing, in general terms, what that evidence would have been. That material included what was agreed and not agreed between the parties, and explanations for the way the work was carried out.
Conclusion
The order of the CTTT made 14 July 2011 was made without jurisdiction. There are no discretionary reasons to refuse prerogative relief.
I make the following orders:
(1) An order in the nature of certiorari removing into the Court the determination of the Consumer, Trader and Tenancy Tribunal made 14 July, 2011 in File No HB 10/50297 and quashing that determination.
(2) The matter be remitted to the Tribunal to be determined in accordance with law.
(3) The Defendants are to pay the Plaintiffs' costs.
(4) The Defendants are to have a certificate under the Suitors Fund Act 1951 if otherwise so entitled.
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Decision last updated: 16 December 2011
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