Doherty v Consumer Claims Tribunal

[1999] NSWSC 371

CITATION:

Doherty v Consumer Claims Tribunal & Anor [1999] NSWSC 371

CURRENT JURISDICTION:

Administrative Law

FILE NUMBER(S):

30052/98

HEARING DATE(S):

13 April 1999

JUDGMENT DATE:

23 April 1999

PARTIES :

David Doherty
(Plaintiff)

Consumer Claims Tribunal
(First defendant)

Kevin Hancock
(Second Defendant)

JUDGMENT OF:

Master Harrison

COUNSEL :	Mr R D Marshall (Plaintiff) Mrs M A Gilmour (Second Defendant)
SOLICITORS:	Mr David Reid of Donovan Oates Hannaford, Port Macquarie (Plaintiff) Ms Fabiola Campora Department of Fair Trading
CATCHWORDS:	Denial of natural justice
ACTS CITED:	Uncollected Goods Act 1995 Consumer Claims Tribunal Act 1987 Conciliation and Arbitration Act 1904-1969 Judicial Review of Administrative Act 2nd ed
CASES CITED:	Barnes v Oliver & Ors (1970) 16 FLR 367 Fletcher v Commissioner of Taxation (1988) FCR 442 Hutley v Meigan & Ors (1997) ASC 65-370 Kioa v West (1985) 159 CLR 550 Finton Pty Limited v The Registrar CCT & Ors (NSWSC Graham AJ, 16 December 1997, unreported) Singer v Statutory and Other Officers Remuneration Tribunal (1986) 5 NSWLR 663 Archcom Pty Limited v Consumer Claim Tribunal & Ors (NSWSC 29 September 1995, unreported) Sullivan v Department of Transport (1978) 20 ALR 323
DECISION:	See para 48

30


THE SUPREME COURT
OF NEW SOUTH WALES
ADMINSTRATIVE LAW DIVISION

MASTER HARRISON

FRIDAY, 23 APRIL 1999

30052/98 - DAVID DOHERTY v CONSUMER CLAIMS
TRIBUNAL & ANOR

JUDGMENT (Quash orders of Consumer Claims Tribunal;
Denial of natural justice)

1 MASTER: By amended summons filed 3 July 1998 the plaintiff seeks to appeal against the decision of Mr Gilson a Referee of the Consumer Claims Tribunal made on 22 April 1998. The plaintiff relied on his affidavits sworn 19 May 1998, 3 August 1998 and 12 October 1998 and affidavits of Joan Bernadette Talbot sworn 10 August 1998 and Amanda Jane Mulligan sworn 10 August 1998. The second defendant relied on his affidavit sworn 2 October 1998 and on the affidavit of Kerry Cowell sworn 2 October 1998.
2 The plaintiff was the respondent in proceedings in the Consumer Claims Tribunal. The second defendant was the claimant in the proceedings in the Consumer Claims Tribunal. The first defendant has filed a submitting appearance.
3 The issue to be determined is whether the appellant was denied natural justice in the proceedings before Referee Gilson in the Consumer Claims Tribunal.
4 The dispute before the Referee was whether the plaintiff, who was the proprietor of Wauchope Mini Storage, disposed of the goods that were stored in his storage sheds in contravention of the Uncollected Goods Act 1995, what were those goods and how much compensation should be awarded. The defendant was seeking compensation. The Referee in his reasons decided that he preferred the corroborated evidence of the defendant as to the contents of the storage shed. As the goods were over a certain value, the Referee held that the plaintiff was required to dispose of the goods in accordance with the Uncollected Goods Act 1995. After he had looked at the defendant’s list of documents and his estimates of their “sale value” and replacement value, he determined a fair and equitable measure of the defendant’s loss as $6,500. He made orders accordingly.
5 I observed both the plaintiff and defendant both giving evidence and being cross examined. The plaintiff was not an impressive witness. Although he was astute, he did not answer questions in a frank and convincing manner. At times he was evasive. There were a number of inconsistencies in his evidence particularly in relation to the topics of receipt of the brochure from the Consumer Claims Tribunal, the clearing of the shed, whether he sent one or two letters to the defendant, advertising and whether he was permitted to make a telephone call during the course of the Consumer Claims Tribunal proceedings. I shall refer to these topics in more detail shortly.
6 The plaintiff had received a claim form which he read. It is clear on the form that the defendant stated that the value of the claim was $14,000. An example of the plaintiff’s evasiveness during cross examination is as follows.
7 At t 6.25-55:
“Q. And you were aware it was a large claim he was bringing against you?
A. I had no idea how he arrived at this figure.”

8 At t 8.25:

“Q. You were aware before you went to the tribunal hearing that you had to be ready to meet a claim for $14,000?
A. No. The amount was in dispute.

Q. You read the claim form and you saw Mr Doherty was claiming $14,000 for many items which he said were missing from the storage unit and you said were not?
A. That’s correct.”

9 Later at t 13.25:
“Q. When you went to the hearing what did you think Mr Hancock was claiming that would amount in value to $14,000?
A. I had no idea, to be honest.”
10 Another example of the plaintiff’s evasive answering of a question appears at t 21.35-55 and t 22.5:

“Q. This affidavit was sworn in August 1998, wasn’t it?
A. If it says so.

Q. Some months after the hearing before the tribunal?
A. Yes.

Q. Would you look at p 9 now. Here you give an account of what was said at the hearing and you say, at par 26, the referee said ‘I am disturbed by the fact you did not advertise for Mr Hancock in the paper’ and you say ‘The licence agreement says I do not have to advertise.’ The referee said, ‘The legislation says you have to advertise.’ That conversation record (sic) in that affidavit is pure fantasy, isn’t it?
A. Which affidavit are we talking about now?”

11 I turn to some of the inconsistencies in the plaintiff’s evidence. In relation to the brochure, in his affidavit the plaintiff made no mention of receiving a brochure which accompanied a claim form together with a covering letter. In cross examination the plaintiff conceded that he probably received the brochure with the claim form. He said that he recalled receiving a little green brochure. In his answer to the next question he retreated from that stance and said he did not recall receiving the brochure and he did not know if he received the brochure (t 5). He then conceded that he may have read some of the brochure.
12 In relation to the clearing of the shed, at the hearing before the Referee the plaintiff stated “then I got someone in to clean it out.” The defendant in his statement tendered to the Referee recalled that during a conversation between the plaintiff and himself where he (defendant) asked for the location of various items that were stored in the shed, the plaintiff replied that he could not tell the defendant, and he would have to ring the bloke who cleaned the defendant’s bay out. This statement is also reflected in the Referee’s notes and the Referee in his reasons when determining a just and equitable amount of damages stated that the plaintiff had no record whatsoever of the goods he removed from the shed. In the plaintiff’s affidavit (sworn 3 August 1998) the plaintiff stated that after he had cleaned out Unit No 74 he observed that the items that were removed were of little or no value. At the hearing before me under cross examination the plaintiff said that he engaged someone “to assist him” (t 11.45). In his affidavit he stated that someone else did start clearing the shed but he took the goods in the truck to the tip. In other words he was saying to the court that he had knowledge as to the contents of the shed.
13 In relation to advertising, the defendant told Ms Cowell that he had put advertisements in the paper. At the hearing before the Referee the plaintiff maintained that an advertisement had been placed in the local paper although he had no details with him to support his allegation. During cross examination, the plaintiff said that he was aware that he had to advertise (t 9.32). The plaintiff agreed he told the Referee that an advertisement was placed in the local paper in about the end of August 1997 when 6 or 7 were placed on the same day. The defendant’s version of what the plaintiff told the Referee is that the plaintiff thought his wife had advertised and she had a receipt somewhere. The defendant does not recall the plaintiff responding to the Referee’s question of when the plaintiff actually advertised. During cross examination, the plaintiff stated that he was unable to produce any advertisement at the Tribunal hearing as the defendant’s name was not on the list (t 17). He admitted that he was aware that a subpoena had been served on the newspaper and they were unable to produce these advertisements (t 17-18). Finally, the plaintiff conceded that he did not place an advertisement in the newspaper with the defendant’s name on it (t 18.7).
14 The plaintiff claims to have sent two letters to the defendant informing him that his rent payments were in arrears and he intended to dispose of the contents. At the hearing before the Referee, the plaintiff only produced one letter. At the hearing before me he produced a second letter which was apparently dated 3 August 1997. It was suggested during cross examination that he manufactured this letter after the Tribunal hearing. His explanation as to why he did not produce the earlier letter purportedly sent in June (which also contains no addressee, address or date and was not received by the defendant) to the Referee was because “it was in a different section of the computer” (t 9-10). The defendant did not receive either letter. The plaintiff had further difficulties with his computer which meant he was unable to produce all of the rent receipts in relation to the bay used by the defendant in the storage shed. According to the plaintiff, there had been a computer malfunction prior to January and March 1997 and it was difficult to check up on about 30,000 receipt books (t 16).
15 With regard to the plaintiff’s request to make a telephone call during the hearing before the Referee, there is no evidence of this request being made either in the Referee’s notes or the Referee’s reasons. Nor is there any mention of such a request in the plaintiff’s affidavits. The first mention of this purported request was raised by the plaintiff during cross examination at the hearing before me. He said that he had asked the Referee if he could make a telephone call to his brother to confirm the prices of tools and that this request had been denied by the Referee. The plaintiff was unable to explain why he had not referred to this incident in his affidavit. The defendant gave evidence that he did not recall the plaintiff requesting permission to make a telephone call. Rather he did recall the plaintiff’s mobile ringing during the course of the hearing when the Referee asked the plaintiff to turn it off or leave the room. I shall refer to this incident again later in this judgment.
16 The defendant was asked only a few questions. He appears to be mistaken on one matter, namely whether or not his statement dated 12 October 1998 was annexed to his claim form. He said it was but conceded that he could be mistaken The claim form was lodged on 23 February 1998 and it is more likely the defendant filed this statement with the Consumer Claims Tribunal after he lodged his claim but prior to the hearing. I accept the plaintiff did not see a copy of this statement prior to the hearing. This mistake was a genuine error by the defendant. It was my view that the defendant was a truthful witness. His mistake did not cause me to doubt the rest of his evidence. His evidence contained in his statement, affidavit and before the court was consistent. Both the plaintiff and defendant gave conflicting evidence before the Tribunal and this court. The parties’ credibility was in issue. I have outlined some difficulties with the plaintiff’s evidence above and I prefer the defendant’s evidence to that of the plaintiff.
17 The brief facts leading up to the hearing in the Consumer Claims Tribunal are as follows.

(1) That prior to 11 October 1997 the goods were removed from Unit 74 within the storage shed complex as the defendant had fallen into arrears with his rental payments Some of the goods were put on consignment in the second hand store next door to the storage shed complex. Goods that were considered worthless were taken to the tip.

(2) On 11 October 1997 the defendant attempted to take possession of the goods he had stored with the plaintiff. Subsequently some goods were returned to the defendant. However, the defendant alleged that some of the items, personal possessions and papers were not returned. The plaintiff and defendant had a conversation. It is agreed that the defendant prepared a list of the missing goods and later that day gave it to the plaintiff. The plaintiff’s evidence is that the list contained only 5 or 6 items, whereas the defendant’s evidence is that the list contained more than 6 items but less than the number that appeared in a schedule that he prepared for the hearing. (Ex 1 p 22b). The plaintiff’s evidence is that he lost this list prior to the hearing.

(3) The defendant lodged a complaint with the Department of Fair Trading at Port Macquarie. On 4 February 1998 the plaintiff had a conversation with an officer of that department who informed him that they had received a complaint from Mr Hancock in relation to the way in which he had dealt with some of the goods belonging to Mr Hancock in a shed within the storage complex. The plaintiff was informed that he had not dealt with the goods in accordance with the Uncollected Goods Act . The defendant replied that he had a written agreement that specifically stated that he could do as he pleased. The conversation ended when the officer requested the plaintiff fax a copy of the Licence Agreement and that his supervisor would get back to the plaintiff.

(4) On 10 March 1998 the plaintiff telephoned Ms Cowell who was the office manager. Once again Ms Cowell informed the plaintiff that there were strict methods under the Uncollected Goods Act which required certain notices and steps to be taken. The plaintiff says that he told Ms Kerry Cowell that he had sent notices and queried how the defendant could claim $10,000 against him. The plaintiff said that he had returned most of the goods to the defendant and the items that he did not have he threw out because they were rubbish and of no value and that if they had been of any value he would have sold them and applied it to the outstanding rent. According to the plaintiff Ms Cowell replied “Well I am under an obligation to tell Mr Hancock that he can lodge a claim with the Consumer Claims Tribunal should he wish to do so”. The plaintiff replied “I’ll defend any claim he makes because the goods that are missing are not worth $10,000, they would be worth a couple of hundred dollars at the most”.

(5) Ms Cowell’s version of events is contained in a contemporaneous file note. The note states that the plaintiff had rung and was most upset about receiving this claim. He had tried to contact the defendant over monies the defendant owed him but he had moved. The plaintiff had advertised in the paper and all. Ms Cowell explained that if a person wished to lodge a claim that under the Act the office had to take it. The plaintiff said that the Act should be changed. He was told he could contact his local member if he wished to discuss changing the Act. Ms Cowell explained that the matter would be listed for hearing at Port Macquarie and the onus was on the defendant to prove the claim and it would be the defendant’s chance to provide evidence for his side. He was told to bring all his documents in relation to the matter and that the hearing would be either April or May. The note concluded by saying that the plaintiff had calmed down by the end of the conversation. The plaintiff admits that he was told that he had to attend the hearing.

(6) On 23 February 1998 the defendant lodged a claim form with the Consumer Claims Tribunal. On 10 March 1998 the plaintiff received a letter from the Consumer Claims Tribunal enclosing a copy of the claim form. In cross examination the plaintiff was asked whether or not he received the brochure enclosed and the covering letter. The covering letter referred to the claim and attached a copy of it. Also enclosed was a brochure entitled “Information about Consumer Claims Tribunals and Building Disputes Tribunals”. The letter covering referred to the brochure which explains the operation of the Tribunals. The covering letter also advised the plaintiff that the matter would be listed for hearing as soon as a date became available. At the foot of the document a note appears (in bold letters) marked “ *IMPORTANT* ”. Underneath the plaintiff is directed to read the brochure enclosed. This brochure contained advice as to whether or not a party can have an interpreter or a lawyer present, what happens if a party cannot attend a hearing and also explains what the Tribunal does. There is paragraph headed “What Happens at the Hearing?” which states as follows:


“* You must present your own case.

* You bring any documents such as contracts, quotes, receipts, drawings, plans, cheque books or letters and any other information or material you think will help you prove your case (Photographs are often very helpful).

* If you bring documents etc. to a hearing, please bring a copy to be retained as part of the Tribunal record. Otherwise originals MAY be retained by the Tribunal.

* If you have other evidence, e.g. the opinion of a relevant expert or witness, they must give evidence on affidavit or statutory declaration or attend the Hearing and give evidence under oath.

* The hearing is informal and is headed by a Referee.

* At the hearing if you think you are at a disadvantage you can ask the Referee if someone can speak for you.

This is only allowed in certain circumstances.

* The Referee encourages each side to settle the problem.

* If you have not settled your problems the Referee listens to each side.

* The person who made the claim goes first and tells their side and gives their evidence.

* The other person then answers the claim and tells their side and gives their evidence.

* If you still cannot reach an agreement yourself, the Referee makes an order that is fair to each side.

* The Tribunal’s orders are final.

You must obey the Tribunal’s order.”


(7) As previously stated, the plaintiff initially gave evidence under cross examination that he had probably read the brochure and then after further questions said that he could not recall. However, he does not deny that he would have received this brochure through the mail with the letter. He conceded that he may have read the brochure.

(8) It is more likely than not that the plaintiff knew that he had read the brochure. The plaintiff gave evidence that he knew he had to turn up at the hearing and had to prepare his claim and get his matter ready for the hearing. He admitted that he was aware that the defendant was claiming $14,000 but he was not aware of how that amount was made up. The plaintiff agreed that the document contained some helpful suggestions such as bringing documents and witnesses to the hearing. He said that he was aware that Ms Talbot the owner of the second hand goods store next door was an important witness.

(9) On 7 April 1998 the plaintiff received a letter from the Consumer Claims Tribunal advising him that the claim had been listed for hearing in Port Macquarie on 22 April 1998 at 9.30 am for one hour. At the foot of the document it stated:

“YOU ARE NOTIFIED THAT IN THE ABSENCE OF EITHER PARTY THE CASE MAY BE DETERMINED BY THE TRIBUNAL AND AN ORDER MADE ON THE EVIDENCE AVAILABLE. EVEN IF YOU HAVE ATTENDED AN INITIAL HEARING, IT IS ALWAYS IN YOUR INTERESTS TO ATTEND ANY SUBSEQUENT RELISTING OF A CLAIM.”
(10) At the hearing on 22 April 1998, the plaintiff, defendant and Mr Morrison attended the hearing before the Referee. It is common ground that on 22 April 1998 the matter took 2 hours having previously been estimated to take 1 hour. The Referee introduced himself to both the parties and informed the parties that his decision was final and he was going to ask them to swear an oath. Mr Hancock was accompanied by Mr Morrison who later gave evidence. It is also common ground that the Referee spoke generally about the case in the context of the claim form. The Referee invited the defendant to put his case. The defendant handed to the Referee a statement of a list of goods that he said had not been recovered out of the shed. This list contains 32 items. Although the plaintiff had not previously received a copy of this list he was given an opportunity to examine it. He commented upon items that were in the storage unit and what they were worth (t 20). It is the defendant’s version of events that this list contained most of the items that he had earlier written on the back of an envelope and given to the plaintiff. As previously stated, the plaintiff lost this list.

(11) The defendant handed to the Referee numerous quotes from a hardware store which refer to the replacement value of the goods he alleged were not returned to him. A copy of these quotes was provided to the plaintiff. However although he denied ever seeing only one of them from Hulberts Hardware. The plaintiff agreed that he was given the opportunity to go through the list and comment on the prices. He took 5 to 10 minutes to go through the list. According to the plaintiff he told the Referee the prices were not fair and he commented on what they were worth. The plaintiff stated that he knew that a mechanic tool kit was not worth $3,500 (t 20).

(12) After the defendant had put his case the Referee invited the plaintiff to put his case. The plaintiff handed to the Referee a copy of the licence agreement. The Referee raised the issue of advertising and what had happened to the goods that were removed. The plaintiff defended the proceedings on two bases, namely that para G of the contract gave him permission to dispose of the goods in the manner he saw fit and secondly that with the exception of 6 items, all the goods that were in the shed were returned. It is curious that the plaintiff used the defence that he was entitled to dispose of the goods pursuant to the contract when he had previously been advised on two occasions that he was not entitled to do so due to the provisions of the Unclaimed Goods Act which were applicable. Even though the plaintiff asserted that he was entitled to dispose of the goods, his alternative position was that he sent a reminder notice about one month earlier. This notice is undated and the defendant’s name and address do not appear on the letter and he received no reply. A copy of this letter was produced. He also advertised in the local paper but no copy of the advertisement was produced.

The defendant told the Referee that he could not produce records to the Referee at the hearing of what was sent to the second hand shop although he did not believe any were sold. According to the defendant at the end of the hearing the plaintiff told the Referee that he had a brief look in the shed and thought it contained mainly junk but no reference to this appears in the Referee’s notes He affirmed that another person moved the items out.

(13) The Referee once again explored whether the parties were able to settle the proceedings. When settlement negotiations failed the Referee adjourned for 20 minutes to consider his decision. He called the parties in and read out his decision to them.
The Law

18 The plaintiff relied on s 12(2)(b)(ii) of the Consumer Claims Tribunal Act 1987 which gives this court the jurisdiction to grant relief in relation to the hearing or determination of the claim if a party has been denied natural justice. No appeal lies to this court where errors of fact or law have occurred.
19 At the outset, it is helpful to set out some of the provisions of the Consumer Claims Tribunal Act 1987. The Tribunal is not constrained by the rigour of the court room. In a sense, its function is to mete out rough justice or at least a less than perfect form of justice in an economical way appropriate for disputes within the limits of its jurisdiction. Evidence before the Tribunal must be relevant to the determination of a claim (s 23(1) of the Consumer Claims Tribunal Act 1987 as amended) and must be given on oath or statutory declaration (s 23(2) - s 23(3)) but the Tribunal is not bound by the rules or practice of evidence and the Tribunal may inform itself on any matter in such manner as it considers appropriate (s 23(4) - see also s 29(4)). The Tribunal must conform to the rules of natural justice but, broadly speaking, has control of and responsibility for its own procedures (s 17(1)). Its business is conducted in private (s 22(1)). There is no requirement that Referees constituting the Tribunal be legally qualified. The orders of the Tribunal must, in its opinion, be “fair and equitable” (s 31(1)). The tribunal has no power to award costs (s 28). Pursuant to s 29 of the Act the Tribunal is obliged to use its best endeavours to bring the parties to a settlement before making any order.
20 The plaintiff referred to Barnes v Oliver & Ors (1970) 16 FLR 367 and Fletcher v Commissioner of Taxation (1988) FCR 442. The second defendant relied on Hutley v Meigan & Ors (1997) ASC 65-370, Kioa v West (1985) 159 CLR 550 and Finton Pty Limited v The Registrar CCT & Ors (NSWSC, Graham AJ, 16 December 1997, unreported).
21 In Hutley , Rolfe J referred to the often quoted and if I may respectfully say so the helpful comments of Hunt J (as he then was) in Singer v Statutory and Other Officers Remuneration Tribunal (1986) 5 NSWLR 633 and those of Simpson J in Archcom Pty Limited v Consumer Claims Tribunal & Ors (NSWSC, 29 September 1995, unreported) which deal with the nature of the proceedings in the Consumer Claims Tribunal.
22 The Tribunal has been established to deal with small claims in a relatively informal and expeditious manner. As Hunt J said in Singer at p 635:
“The Consumer Tribunal Act 1974 has set up a system for the speedy and inexpensive disposal of certain claims, limited in amount, arising out of contracts for the supply of goods or the provision of services by a person carrying on (or holding himself out as carrying on) the business of supplying such goods or providing such services. The tribunal hearing such claims is constituted by a referee, who need not have (and who in many cases does not have) legal qualification.”
23 As Simpson J said in Archcom at p 12 after referring to the remarks of Hunt J:
“Those remarks were made in the context of the predecessor of the Act, a 1974 Act by the same title, but they apply equally to the Act. Underpinning the Act is a policy of providing expeditious access to an inexpensive and informal process for the resolution of consumer disputes involving relatively small amounts of money. Speed and economy are to be accompanied and (it is hoped) often achieved, by informality.”
24 Her Honour continued, at pp 13-14:
“The intention of the legislature, in creating these tribunals as a forum for the resolution of disputes involving relatively small amounts of money was the achievement of expeditious and inexpensive justice between the parties while maintaining a proper regard for, and protection of, the rights of the parties to the dispute. The difficulty, as I see it, lies in striking the correct balance between those two goals. Speedy and inexpensive solutions may be inimicable to the protection of rights. There is no necessary relationship between the factual or legal complexity and the quantum of a claim but legal rights and obligations remain at the heart of the tribunal’s jurisdiction. Although a tribunal is enjoined to make such orders as will, in its opinion, be fair and equitable to all parties to the claim (s 31(1)), those orders must be grounded in legal liability.”
25 Her Honour thus stressed the need for “justice” and the “protection of rights”.
26 In Barnes , a decision of the Commonwealth Industrial Court, the central issue of the case was whether Mr Oliver had been since 22 January 1970 the duly appointed branch secretary of the New South Wales Branch of the Australian Workers Union.
27 Mr Oliver attended a meeting on 17 January 1970 when the vice president read out a report which he (Oliver) had not previously seen. The scope, charges and breadth of the matters set out in the report involved the consideration of numerous aspects of branch activities which extended over many years. Mr Oliver was not given a fair chance to deal with the charges. A motion was passed that Mr Oliver be immediately removed as branch secretary.
28 Sweeney J stated (at p 390) that the question to be decided turned on the construction of r 67 of the Conciliation and Arbitration Act 1904-1969. His Honour referred to the words of Professor S A de Smith, Judicial Review of Administrative Act , 2nd ed., pp 180-181 which are reproduced below.
“Natural justice generally required that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position: (a) to make representations on their own behalf; or (b) to appear at a hearing or inquiry (if one is to be held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet.”
29 His Honour held that the notice given to Mr Oliver by the reading of the report was not adequate and it was no answer to say that Mr Oliver did not seek an adjournment. Sweeney J held that a branch executive seeking to exercise a power conferred by r 67 of the Act was obliged to give adequate notice and proffer natural justice. His Honour concluded that a party confronted as Oliver was, after long and silent preparation by his accusers, with a report containing allegations and purported findings of neglect of his official duty extending over a long period, should not be placed in a position where, although vigorously protesting his innocence, he can finally be deprived of the benefits of natural justice unless he demands an adjournment.
30 In Kioa the High Court held that the duty to accord natural justice is a duty to act fairly. In the normal course, a party to judicial proceedings (as are those in a tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing such as to give it a reasonable opportunity to meet that case and to advance its own. These statements are similar to those expressed by Professor de Smith and referred to earlier. Brennan J (as he then was) at p 628 stated:
“A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interest which the repository of the power proposes to take into account in deciding upon its exercise.”
31 In relation to procedural fairness, Mason J stated in Kioa that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect the rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case (pp 454 and 455).
32 In Fletcher the applicant taxpayers had claimed certain deductions in respect of elaborate arrangements into which they had entered respecting certain annuities. The respondent Commissioner had rejected their claims for deductions and, subsequently, had disallowed their objections in respect of his decision to reject their claims. The Administrative Appeals Tribunal had confirmed the Commissioner’s disallowance of the taxpayers’ objections but in doing so the Tribunal had purported to exercise the discretion conferred upon the Commissioner by s 177F(1) of the Income Tax Assessment Act 1936 (Cth). The court held that the failure of the Tribunal to give notice to the taxpayers of the possibility of a determination under s 177F(1) in the circumstances constituted a denial of procedural fairness and remitted the matter to the Tribunal for further hearing. I did not find this case useful.
33 The most relevant case is that of Kearney J of the Supreme Court of the Northern Territory in Bayram & Ors v Chris Benton (1994) 117 FLR 414. It was cited with approval by Rolfe J in Hutley . In Bayram the issue before His Honour was whether the appellants had been denied natural justice in that they had not been afforded a reasonable opportunity to present their case, in all the circumstances; and that this denial of natural justice meant that the Tribunal’s decision was wrong in law, or, alternatively, established that the conduct of the proceedings was unfair (p 417). Kearney J referred to the decision in Sullivan v Department of Transport (1978) 20 ALR 323 and quoted from a passage in the judgment of Deane J at p 343, where His Honour said:
“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 to enable him to procure Dr Evans’ attendance as a witness, that refusal may well have constituted such a failure. No such application for an adjournment was, however, made … 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 …). 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 imposes upon the tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.”
34 In Hutley the claimant before the Building Disputes Tribunal indicated that he needed time to prepare a response to the Scott schedule and was given a short break during a recess of about 30 minutes to review the list and telephone his solicitor. Upon returning to the hearing room he indicated he was unable to properly address the items raised without a visual inspection of the site and opportunity to engage an independent expert. Rolfe J held that the plaintiff had been denied natural justice when a referee refused an adjournment of a hearing when requested to do so, after the respondent at the hearing handed to the referee a Scott schedule listing defects and rectification works of four pages in length and listing 47 items each attributed with a probable cost.
35 The plaintiff has made a number of complaints concerning the hearing before the Referee which he submitted amounted to a denial of natural justice. They are, firstly that the Referee should have advised him of the availability of an adjournment particularly when he allegedly sought permission during the proceedings to make a telephone call; secondly he did not know what role Mr Morrison was to play at the hearing; thirdly all paperwork and documents used by the defendant in his submissions were typed on the letterhead of Garrett & Walmsley, solicitors of Port Macquarie; fourthly Mr Hancock did not possess receipts for the original purchase of the goods allegedly in the shed and relied upon valuations for new goods; fifthly the plaintiff did not bring any witnesses to the hearing because he did not think he needed these people at the hearing; sixthly he was not given a copy of the list of goods and their values claimed by Mr Hancock and seventhly nor was he invited to review the list prior to it being handed to the Referee.
36 In relation to the first complaint that the Referee should have advised him of an adjournment, the plaintiff’s evidence was that he did not know that he could request an adjournment. However the plaintiff claimed for the first time at the end of his cross examination that he requested the Referee’s permission to make a telephone call. The defendant denies that the plaintiff made this request and the Referee’s notes and decision do not make any mention of it. I am not satisfied that on the balance of probabilities this request was made. However, it does indicate that the plaintiff was aware that he could ask for an adjournment at least for a few minutes. I do not accept the plaintiff’s evidence that he was unaware that he could ask for an adjournment. As was stated in Sullivan , the Referee had a duty to ensure that the plaintiff was given a reasonable opportunity to present his case. Even if the plaintiff had sought and obtained a short adjournment to confirm with his brother that the prices referred to in the quotes from the hardware store it would have served little purpose as the plaintiff already knew they were outrageous and went on to make submissions on this topic. The plaintiff had previously received the claim form and a list of goods that were in the shed. That list contained items that had not been returned. The list may not have been as complete as the one handed to the Referee by the defendant at the Tribunal hearing. The Referee does not have to ensure that the plaintiff took the best advantage of the opportunity to which he is entitled. The Referee was aware that the plaintiff had some documents to support his case. The plaintiff was able to give his version of events and gave an alternative submission when the plaintiff thought it expedient to do so. In short, the plaintiff did not draw to the Referee’s attention that he was unable to meet the defendant’s invoices. There is no evidence to suggest that the plaintiff made such a complaint to indicate he could not meet the defendant’s case or that the Referee would have been able to discern that the plaintiff was not in a position to meet the defendant’s case.
37 In relation to the second complaint, that the plaintiff said he did not know the role that Mr Morrison played, that would have become evident during the proceedings. If he was unsure at the commencement of the proceedings he could have asked the Referee. According to the plaintiff it was two on one and Mr Morrison was bolstering Mr Hancock’s argument despite the fact that the comments were in relation to issues that Mr Morrison could have known nothing about. Another complaint was that Mr Morrison was not asked to wait outside until he had been called into the room. The rules of evidence do not apply at a Tribunal hearing and proceedings are informal. However, during the course of the tribunal proceedings it became apparent to the plaintiff that Mr Morrison was appearing in his role of witness. Although he looked different in a suit and tie, the plaintiff conceded that he recognised that it was Mr Morrison who went with the defendant to recover the goods from the storage shed on 11 October 1997. A statement made by Mr Morrison was tendered to the Referee and Mr Morrison gave short evidence.
38 The third complaint is that all the paperwork and documents the defendant used in his submissions were typed on solicitors’ letterhead. The plaintiff submitted that the defendant should not have been allowed to use the solicitor’s submission because he knew that solicitors were not allowed to be involved in the hearing. The defendant’s evidence is that he may have had documents with him at the tribunal with solicitors’ letterhead, but he did not rely on these documents, nor were they his submissions. None of the correspondence on the Consumer Claims Tribunal file is on solicitor’s letterhead. In any event the defendant was entitled to seek the assistance of solicitors in the preparation of his case and he availed himself of this opportunity.
39 In relation to the fourth complaint namely that the defendant did not produce receipts for the goods stored in the shed but rather relied on valuation of new goods, according to the defendant all documents of this nature were in the storage shed. They were disposed of by the plaintiff. The plaintiff denied there were personal papers in the storage shed and thought that the plaintiff’s assertion was “convenient”. I prefer the defendant’s evidence. However it is more likely that some but not all of the original receipts were in the storage shed. In any case, these valuations were estimates that gave the Referee some indication as to the value of the goods that had been stored in the shed. It is clear from the Referee’s notes and decision that he had taken into consideration the sale and replacement value. He awarded less than half the amount claimed by the defendant.
40 In relation to the fifth and sixth complaints that he did not bring any witnesses, when the plaintiff was asked in cross examination whether he made a decision not to call Ms Talbot at the hearing before the Referee he made a telling statement. He replied “I was unaware that I was up against any other witnesses.” That is the plaintiff made a tactical mistake and did not anticipate that the defendant would bring his witness.
41 The plaintiff submitted that he could have called the witnesses if he had understood the nature of the hearing but the form that was sent to him gave no indication of whether or not he needed witnesses. He had previously been involved in a court hearing and at the hearing the names of the witnesses had to be disclosed otherwise they could not attend. As the plaintiff had not been advised by Mr Hancock or the Tribunal of any of Mr Hancock’s witnesses he assumed that Mr Hancock had none and did not bring any of his own. He could have called his brother and his father-in-law who came into the shed before he cleared it out to advise him if there was anything of any value in respect of the car parts that were there; Mrs Joan Talbot, who runs the second hand shop as she was there when things were cleared out and she advised him as to whether anything was of any value to sell. Those items that were of value were given to Mrs Talbot to sell, and were subsequently returned to Mr Hancock as they had not been sold and the person who helped him clear the shed out. In this regard, the defendant has filed affidavit evidence which deposes to the value of the goods in storage. Ms Mulligan who assisted Mr Hancock when he placed the goods in the storage shed has filed an affidavit and itemised the list of goods that were placed in the storage shed in October 1996. The parties agreed that the evidence of Ms Talbot and Ms Mulligan are in issue as they both attest to the value of goods in the shed.
42 I do not accept that the plaintiff was unaware that he should have brought witnesses to the hearing despite his evidence to the contrary. Ms Cowell told the plaintiff that it was his chance to produce evidence for his side at the tribunal. The plaintiff received a brochure telling him “If you have other evidence, eg., the opinion of a relevant expert or witness, they must give evidence on affidavit or statutory declaration or attend the hearing and give evidence under oath.” The plaintiff conceded that he probably read this brochure. Therefore he would have been aware that if he had any witnesses he should have brought them to the tribunal but chose not to do so.
43 In relation to the plaintiff’s sixth complaint that he was not give a copy of the list of goods, in evidence he said that he had the opportunity to look at it and make comments on it and he did so.
44 The plaintiff was however given a copy of the invoices regarding the tools and it had a very broad descriptions regarding the various items. The plaintiff firstly indicated his position to the Referee that the invoices were irrelevant as these goods were not in the shed. He also admitted that he commented that the prices were not fair and commented on what they were worth. He spent 5 to 10 minutes in the following manner examining the quotes. In relation to the list, I accept that the defendant had previously furnished a list on the back of an envelope which contained most of the items that appeared in the typed list. The plaintiff lost the original list.
45 It is my view that the plaintiff chose to present his case that the contract stipulated that he could dispose of the goods, he attempted to contact the defendant about the arrears and inform the defendant of his intention to dispose of the goods, he advertised before disposal and the goods in the shed were mostly junk. He got all but 6 items back from the second hand goods shop and what was not returned was worthless. The plaintiff elected not to properly prepare for the hearing and is now seeking a second chance. Taking all of the plaintiff’s complaints into account, it is my view that the plaintiff appeared at the hearing, had the opportunity to make representations on his own behalf and to prepare his case and to answer the case he had to meet. The onus was on the plaintiff to show that there had been denial of natural justice and he had not done so. The Referee ensured that the plaintiff was given a reasonable opportunity to meet the defendant’s case. As the plaintiff adopted the position that the goods in the shed were junk and alternatively submitted that the goods were not worth as much as quoted in the invoices and made comment as to how much they were worth the Referee was not obliged to afford the plaintiff an opportunity to ask for an adjournment. In any event, the Referee substantially reduced the amount claimed by the defendant and allowed less than half the amount he claimed.
46 The plaintiff submitted that the Referee could have treated the hearing on 22 April 1998 as an initial hearing and adjourned the hearing to another day. Claims in the Consumer Claims Tribunal are to be dealt with in a speedy and inexpensive way. The Referee would not have had any reason to believe that the plaintiff was at a disadvantage such that he required an adjournment. It would seem that unless a case is unduly complex, an initial hearing would be avoided as it would add to the cost and duration of the dispute.
47 I dismiss the summons. Costs should follow the event. The plaintiff is to pay the defendant’s costs.
48 The court orders that:
(1) The summons is dismissed.
(2) The plaintiff is to pay the defendant’s costs.
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Last Modified: 04/23/1999