Flaherty v Consumer Claims Tribunal
[2000] NSWSC 264
•6 April 2000
CITATION: Flaherty v Consumer Claims Tribunal & Ors [2000] NSWSC 264 FILE NUMBER(S): SC 30043/98 HEARING DATE(S): 16 July 1999 JUDGMENT DATE: 6 April 2000 PARTIES :
Brian Peter Flaherty - Plaintiff
Consumer Claims Tribunal - First Defendant
New System Brick Veneering Pty Limited - Second Defendant
Brick Wizard Pty Limited - Third Defendant
Leonard Ali - Fourth DefendantJUDGMENT OF: Hulme J at 1
COUNSEL : C Freeman - Plaintiff
Ex parteSOLICITORS: Greenaway & Tohme - Plaintiff DECISION: See paragraph 48
- 2 -IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONNO: 30043/98
HULME J
Thursday, 6 April 2000
Brian Peter FLAHERTY v CONSUMER CLAIMS TRIBUNAL, NEW SYSTEM BRICK VENEERING PTY LIMITED, BRICK WIZARD PTY LIMITED, LEONARD ALIJUDGMENT1 HIS HONOUR: By Summons filed on 29 April 1998 the Plaintiff seeks the following orders:-(i) in making an order on 24 April 1996 in favour of the Plaintiff in respect of matter no BPA 95/243 made a final order pursuant to section 34 of the Act.
1. Declarations pursuant to section 12(2)(b) of the Consumer Claims Tribunal Act that the First Defendant:-
(ii) A declaration pursuant to section 12(2)(b) of the Act that the First Defendant, in permitting the purported application of Kenneth John McInnes (not a party) dated 9 May 1996 to renew the claim lacked the jurisdiction to do so, or alternatively, denied natural justice to the Plaintiff.
(iii) A declaration pursuant to section 12(2)(b) of the Act that the First Defendant in making an order on 29 May 1996 lacked jurisdiction to do so.
(iv) A declaration pursuant to section 12(2)(b) of the Act that the First Defendant in making an order on 31 July 1996 lacked jurisdiction to do so.
(v) A declaration pursuant to section 12(2)b) of the Act that the First Defendant in permitting the purported application of The Brick Wizard Pty Ltd (the Third Defendant) dated 30 January 1997 to renew the claim lacked the jurisdiction to do so or alternatively denied natural justice to the Plaintiff.
(vi) A declaration pursuant to section 12(2)(b) of the Act that the First Defendant in making orders on 23 July 1997 lacked jurisdiction to do so or alternatively denied natural justice to the Plaintiff.
(vii) A declaration pursuant to section 12(2)(b) of the Act that the First Defendant, in making orders on 4 September, 1997, lacked jurisdiction to do so, or alternatively, denied natural justice to the Plaintiff.
(viii) A declaration pursuant to section 12(2)(b) of the Act that the First Defendant, in permitting the purported application of New System Brick Veneering Pty Ltd (the Second Defendant) dated 6 January 1998 to renew the claim, lacked the jurisdiction to do so, or alternatively denied natural justice to the Plaintiff.
2. Orders setting aside the orders of the First Defendant in claim no. BPA95/243 except the order dated 24 April 1996.
3. An order remitting the matter to the First Defendant to be re-heard according to law.
2 There were also prayers for other relief and for costs.
3 According to the Plaintiff, on 7 June 1995 he entered into an oral agreement “subject only to price” with a Mr McInnes on behalf of the Second Defendant for the cutting of bricks to be supplied to him and for the installation of the cut bricks as a brick veneering system at his residence. On the following day he received, via a Mr Wignall, a builder who was carrying out other work for the Plaintiff, a proposal in the following terms:-
“NEW SYSTEM BRICK VENEERING PTY LTD…
We thank you for the opportunity to show you the unique “Brick Wizard Veneering System”. We have measured the project and calculated the following Brick Wizard materials will be required to do the job.
These materials include
…
The total price for these materials and labour will be …
Material $5,200.00
Labour $3,320.00
Total $8,500.00
We advise New System Brick Pty Ltd is not and does not claim to be a Licenced Building Co. We can refer GOLD LICENCED Specialist builders to you, but BY LAW, any building works associated with the project must contracted direct with the chosen builder.
The labour quote above has been given by licenced steel backed brick fitters and builders…
…
______________________
CONSULTANT
TERMS
SUPPLY PAYMENT IN FULL ON DELIVERY
BUILDER DEPOSIT $ 300.00
HALF OF WORK $1,500.00
COMPLETION $1,500.00
TOTAL $3,300.00”
4 The Plaintiff says that he accepted the proposal. The cut bricks were delivered on or about 10 June 1995. The Plaintiff was informed by Mr McInnes that he had arranged for the provision of scaffolding and had purchased sand and materials for the fixing of the bricks. There were other discussions with a representative of the Second Defendant in the course of which the Plaintiff said words to the effect “The terms of the agreement I have with your company are that I will pay on completion of the work”. The representative of the second Defendant said words to the effect “Okay”.
5 Some time later a Mr Ali (as I shall refer to the person sometimes referred to in the documents as Mr Ali Leonard, and sometimes as Mr Leonard Ali) who the Plaintiff had not previously met turned up to fix the bricks. Later again Mr Ali produced a form of agreement and asked the Plaintiff to sign it. Conversation to the following effect occurred:-
Plaintiff: “Why do I have to sign an agreement with you? I have an agreement with Ken McInnes’ company which includes installation.”
Mr Ali It’s just a formality. I need it so you are covered by insurance.”
6 At some time the Plaintiff was advised by the Builders Services Corporation that it would be prudent to have some form of agreement with Mr Ali so as to provide the Plaintiff with insurance cover. Accordingly Mr Flaherty signed the agreement. Its full terms were not tendered in evidence but it provided that it was between Mr Ali and Mr Flaherty, that the work was the installation of the “Brick Wizard Veneer System” and for payment on the signing of the agreement of $300, the payment of another $1,500 when the works were 50% complete and a further $1,500 on practical completion.
7 Dissatisfied with the workmanship which Mr Ali had exhibited, - and there is evidence before me which suggests good grounds for that dissatisfaction - the Plaintiff, on 7 December 1995, lodged a claim with the Tribunal, naming as respondents New System Brick Veneering Pty Ltd, Brick Wizard Pty Ltd, Leonard Ali and Mr Wignall. The claim was given number BPA95/243. Thereafter proceedings before the Tribunal included the following:-
(i) On 24 April 1996 the Tribunal made the following orders:-
“I order New System Brick Veneering Pty Ltd of 93 Broadmeadow Road, Broadmeadow and Leonard Ali of 6 Percy Street, North Lambton to jointly and severally make good the upper floor brick cladding in a proper and workmanlike manner at the residence of Brian Flaherty of 47 Loftus Road, Pennant Hills within 14 days of this date. Leave is granted to renew this claim in breach of this order.”
(ii) On or about 9 May 1996 Mr McInnes, apparently on behalf of New System Brick Veneering Pty Ltd, lodged a “Renewal of Claim” seeking a money order for $8,500.00. The Renewal of Claim refers records that the previous order had been made against “New System Brick and Len Ali”. The document asserts that tradesmen were not allowed to complete the work and refers to a fax some 10 days or so earlier in which it was said that “the supply contract has nothing to do with Mr Flaherty and if possible I would request an order by you or a release so that I can continue my demands on Mr Wignall the person responsible for the supply of material …”
(iii) On 29 May 1996 the Tribunal made the following orders:-
“I order New System Brick Veneering Pty Ltd of 93 Broadmeadow Road, Broadmeadow and Mr Ali Leonard of 6 Percy Street, Lambton to jointly return to the residence of Mr B Flaherty at 47 Loftus Street, Pennant Hills on the 6th and 7th of June 1996 between the hours of 7.30am and 5.00pm and complete all necessary rectification of the upper floor brick cladding in a proper and workmanlike manner.
All necessary plant and equipment including scaffold is to be supplied by Mr A Leonard for this purpose.
Any damage caused to the roof surface is to be made good prior to leaving the site on the 7th June 1996 at the cost of Mr A Leonard.
I further order Mr B Flaherty claimant in these proceedings to arrange for payment in the sum of $8,500 on completion of the remedial work by 5.00pm on 7th June 1996.
In the event the works as ordered are delayed by weather the works shall immediately resume on the next fine day until completion is scheduled with payment being made as previously ordered on completion.”
(iv) A further “Renewal of Claim” form was lodged, this time by the Plaintiff. The copy provided is undated. In it and an annexure the Plaintiff alleges:-
· the order made on 24/4/96 had not been carried out anyway approaching a proper and workmanlike manner,
· some work was carried out by the Respondents on 6 June 1996 but was totally unsatisfactory,
· there had been a failure to comply with the orders of 29 May, and
· other damage had been caused.
(v) The document goes on to say that the Plaintiff was “no longer prepared to have the Ali-McInnes travelling circus make good their errors” and that on receipt of quotations the Plaintiff will be requiring a money order for proper tradesmen to make good the efforts of the respondents and will apply for an “order not to pay”. The document proceeds, “I will formally request that the matter again be listed before the Consumer Claims Tribunal when I have received quotations for remedying the present situation … (which) has been caused solely by Ali-McInnes (et, al) and Ali-McInnes non-compliance with your order 29 May 1996” and “I will advise you at the earliest possible ….”
(vi)The evidence before me is silent on the question of whether the Plaintiff did in fact request that the matter be again listed but on 31 July 1996 the Tribunal made further orders. Broadly these followed the form of the orders for rectification made on 29 May although there was somewhat greater specificity of work to be done and the time at which the work was to be done was to be within 4 weeks but otherwise “mutually agreed”. There was also an order that the Plaintiff:
“pay to Mr Ali Leonard the sum of $8,500.00 at completion of the remedial works”.
(vii)Another “Renewal of Claim” was lodged. It bears date 30.1.96 but it is clear that this was a mistake for 30 January 1997. In the line titled “Your name?” there is written “The Brick Wizard (K McInnes)”. In the line entitled “In what way had the order not been obeyed?”, there is written:
“Mr Ali has rang (sic) Mr Flaherty on a number of occasions to make a date to start and has been put off.
We also claim original supply contract has nothing to do with this claim $5200 Mr Ali $3320.
The document stated that a money order for $8,520.00 was sought.
(viii)By letter dated 6 May 1997 the Registry of Consumer Claims Tribunal wrote to the Plaintiff. The letter says the claim was last listed for hearing on 26 March 1997 and the presiding referee has indicated that he intends making a money order for the rectification and completion costs but that he requires two quotes for the completion of the brickwork and asks that these be obtained and forwarded. By letter of 10 May 1997 the Plaintiff acknowledged receipt of that letter and said he would obtain the quotes and send them.
(ix) On 23 July 1997 the Tribunal made further orders in the following terms:-
“I order Brian Flaherty of 47 Loftus Road, Pennant Hills to pay to the Fair Trading Administration Corporation Claims Tribunals Act 1987 the sum of $8,200.00 on or before the 23 August 1997.
I further order Leonard Ali of 6 Percy Street, North Lambton to return to the residence of Brian Flaherty after the 23 August 1997 between the hours of 7.30am and 4.00pm Monday to Friday for such period as necessary, and complete rectification of the upper floor brickwork in a proper and workmanlike manner.”
It may be inferred from the order of events and a letter of 5 March 1997 from the Registry of the Consumer Claims Tribunal that these orders were made on the Renewal of Claim lodged on behalf of The Brick Wizard.
(x) The Reasons of the Tribunal for these orders were as follows (there was no paragraph 7):-
“1. This claim arises out of two contracts:-
(i) New System Brick Veneering Pty Ltd to cut and deliver bricks supplied by Mr B Flaherty for upper floor extensions to his residence for the sum of $5,200.
(ii) Leonard Ali to install the brickwork using the Brick Wizard System.
2. I accept the Claimant’s evidence that the work carried out is less than satisfactory standard which is confirmed by my inspection and the experts report SBIC Advisory Services Pty Ltd.
3. I accept the evidence of Mr Flaherty that he has not been able to obtain quotes to rectify the defects.
4. I also accept the evidence of Mr Flaherty that the only written contract he had was with Mr Leonard Ali which was signed on 1.8.95 and deposit of $300 was paid.
5. I accept also the evidence of Mr K McInnes that there was an oral contract between New System Brick Veneering Pty Ltd to cut bricks supplied by Mr Flaherty and deliver same to the site at 47 Loftus Street Pennant Hills for installation by Mr Leonard Ali using the brick wizard system.
6. I am satisfied by the evidence of Mr Leonard Ali that there has been some inconvenience to Mr Flaherty which has resulted in this claim, I note however, there has been a reluctance to do further work as there is the perception that payment would be forth coming (sic) due to the previous breach of contract terms by Mr Flaherty.
8. I am persuaded by the submissions of both Respondents that the contract balance should be paid into trust and orders made providing access in normal working hours between 7.30am and 4.00pm to allow completion and rectification by Mr Leonard Ali who is the responsible licensed contractor.
9. I form the view that the proposal by both Respondents that the contract monies should be paid into trust with the Fair Trading Administration Corporation to ensure payment is fair and equitable in the circumstances of this claim.
10. I also consider it to be fair and equitable that Mr Leonard Ali be afforded the opportunity to carry out the necessary rectification work in normal working hours of tradesmen between the hours of 7.30am and 4.00pm.
11. Accordingly, I order payment into trust of $8,500 by 23.8.97 and rectification after that date.”
(xi) According to a letter dated 15 August 1997 from the Plaintiff to the registrar of the Tribunal, he had informed the Tribunal on 23 July that he was experiencing extreme difficulty in obtaining quotations for the work. He asked the Tribunal to reconsider its decision. A summary of events annexed to the Plaintiff’s affidavit of 29 April 1998 indicates that on the 19 August the Tribunal sent him a letter advising him that the matter had been re-listed, though no reasons for this were given. By letter of 2 September the Tribunal advised Mr Flaherty that neither the Registrar or the Referee had “power to renew or set aside judicial decisions of the Tribunal, and that his only grounds of redress were by application to the Supreme Court and that on the Referee’s instructions the matter had been re-listed for hearing on 4 September due to his breach of the order of 23 July. There is no other evidence which records how the matter came to be dealt with by the Tribunal on 4 September.
(xii) On 4 September 1997 the Tribunal again made orders. These were:-
“I order Mr Leonard Ali of 6 Percy Street North Lambton 2299 to return to the residence of Mr Brian Flaherty of 47 Loftus Road Pennant Hills on or before 30 September 1997 and make good defective upper floor brickwork in a proper and workmanlike manner.”
I further order Mr Brian Flaherty to pay New System Brick Veneering Pty Ltd the sum of $8,500 at completion of the rectification works in full and final settlement of this claim.”
(xiii) On 1 October the Registrar wrote to the Plaintiff advising him that the Tribunal had amended its order under s33 of the Act. I set out that section in full below but, in short, it entitles the Tribunal to correct accidental errors in its orders. The amendment made was the substitution of “12 November” for “30 September” in the first of the orders I have set out in paragraph (ix).
(xiv) On 6 January 1998, New System Brick Veneering Pty Ltd and Mr Ali lodged another Renewal of Claim. The copy in evidence is in some respect obscure but in response to the question “In what way has the order not been obeyed?” the document says in part “will not allow work to be completed”. The document indicated that orders were sought for the payment of $5200 to New System Brick and $3020 to Mr Ali.
(xv) On 13 January 1998 the Plaintiff lodged another Renewal of Claim. It stated that the Plaintiff sought an order that he did not have to pay $8,500 and alleged:-
“Leonard Ali of/or New System Brick Veneering have not contacted me since November 1997 about carrying out rectification work. Once again they have refused to obey an order made by the Tribunal.”
(xvi) On 11 February 1998 the Tribunal made the following orders:-
“I order Brian Flaherty of 47 Loftus Street Pennant Hills 2120 to pay New System Brick Veneering Pty Ltd at 63/5 The Esplanade Elizabeth Bay 2011 the sum of $5,200 on or before the 11 March 1998 in settlement of this claim. I further order Brian Flaherty to pay Leonard Ali of 6 Percy Street North Lambton 2299 the sum of $2,180 on or before the 11 March 1998 in settlement of this claim.”
(xvii) Among the reasons given by the Tribunal for its orders made on 11 February 1998 were the following:-
“This claim arises out of two contracts as follows:
1. New System Brick Veneering Pty Ltd contracted to modify bricks supplied by Mr Flaherty for fixing to metal battons as quoted on 8 June 1995 to the builder Mr Barry Wignall on instructions by Mr Flaherty for the sum of $5,200.
2. A further contract was entered into by Mr Flaherty with Mr Leonard Ali on 1 August 1995 to erect the modified bricks at the agreed price of $3,300 of which $300 has been paid to date.
3. The work carried out by Leonard Ali has been found on the evidence to be in part defective, with rectification carried out in part by Mr Ali.
4. The relationship between the parties has irrevocably broken down to the extent of personal abuse.
5. I accept the evidence of Mr Flaherty that the work remains defective and requires rectification.
6. I accept also the evidence of Mr McInnis that the rectification cost of completion of the defects is $850 which is confirmed by 3 quotations.
7. I am persuaded by the conduct of the parties that the only reasonable way to resolve this dispute is to allow the claimant Mr Flaherty a reduction of $820 from the contract sum with Mr Leonard Ali to enable rectification of the remaining defects.
8. I therefore order payment - in the sum of $5,200 to New System Brick Veneering Pty Ltd for the supply of the New System Brick veneer system and for the modification of the brick supplied by Mr Flaherty by cutting.
9. I further order payment to Mr Leonard Ali the sum of $2,180 being the balance due after deducting $820 to complete rectification of the remaining defects.
(xviii) All of the above processes, including the “Renewal(s) of Claim” and orders bore the number BPA95/243, the number allocated to the Plaintiff’s original claim.
8 Mr Flaherty annexed to one of his affidavits read before me a quote dated 9 February 1998 from an organisation Modular Building Systems and said that he first saw the original or a copy of that quote during the hearing of 11 February 1998 and was not given an opportunity to check its accuracy or challenge the quotation. There is no evidence of, or which refers to, the other 2 quotations to which the Reasons of the tribunal set out in sub-paragraph (xvi) refer. In his affidavit of 29 April 1998, Mr Flaherty also said:-
“My oral contract with the Second Defendant has not been completed satisfactorily yet I have been ordered to pay the Second Defendant the sum of $5,200.00 and to pay to the Fourth Defendant the sum of $2,180.00, being the balance of the labour costs less $820.00 rectification costs which have been established by the Second Defendant. The fact is that I cannot obtain rectification or a quote therefore from a reliable source.”
10 Substantial limits on this Court’s ability to review and deal with proceedings in the Consumer Claims Tribunal were imposed by Section 12 of the Consumer Claims Tribunals Act which, so far as is presently relevant, provided:-
9 The Consumer Claims Tribunal Act by and under which the Consumer Claims Tribunal was created and operated was repealed by s18 of The Consumer Claims Act 1998 which came into force on 1 March 1999. However, having regard to the transitional provisions in clause 5 and 5A of Schedule 1 to the Consumer Claims Act, at least so far as the issues in this appeal are concerned, the provisions of the Consumer Claims Tribunal Act continue to apply.
12 Tribunal to be immune from judicial review
(1) Except as provided by subsection (2), a court of record has no jurisdiction to grant relief or a remedy by way of:in respect of a consumer claim heard and determined or to be heard or determined by a tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a claim.
(a) a judgment or order in the nature of prohibition, mandamus, certiorari or other prerogative writ,
(b) a declaratory judgment or order, or
(c) an injunction,
(2) A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) if, in respect of a consumer claim:
(a) …
(b) a tribunal has made an order under section 30 and the ground on which the relief or remedy is sought is that:
(i) the tribunal had no jurisdiction to make the order, or
(ii) in relation to the hearing or determination of the claim, a party to the claim had been denied natural justice.11 Section 10(1) of the Act provided that “subject to this Act, a tribunal has jurisdiction to hear and determine any consumer claim referred to it in accordance with this Act.” Section 13(1) provided that a consumer claim may be made by lodging a claim in the approved form, together with the prescribed fee, at the registry or a Local Court. Section 14(1) provided that such a claim must be referred by the Registrar to a tribunal for hearing and determination.
12 Under Part 3A of the Act, subject to some qualifications not obviously relevant here - see e.g.s12B, a building claim was considered to be a consumer claim, a person who makes a building claim was to be considered to be a consumer, and “building claim” was defined to mean:-
13 The terms of Section 30 and 12I presently relevant should be set out in full:-
“A claim for:-
(a) the payment of a specified sum of money, or
(b) the supply of specified services, or
(c) relief from payment of a specified sum of money, or
(d) the delivery, return or replacement of specified goods or goods of a specified description, or
(e) a combination of 2 or more of the remedies referred to in paragraphs (a)-(d),
that arises from a supply of building goods or services, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of building goods or services.”
30 Tribunal Orders
(1) In determining a consumer claim wholly or partly in favour of a claimant, a tribunal may, subject to sections 31 and 32, make such one or more of the following orders as it considers appropriate:
(a) an order that requires a respondent to pay to the claimant a specified amount of money.
(b) an order that requires a respondent to perform specified work in order to rectify a defect in goods or services to which the claim relates,
(c) an order that requires a respondent to supply to the claimant specified services other than work,
(d) in the case of a claim for relief from payment of money, an order declaring that a specified amount of money is not due or owing by the claimant to a respondent,
(e) …
(2) In determining a consumer claim wholly or partly in favour of a respondent to the claim, a tribunal may make such one or more of the following orders as it considers appropriate:
(a) an order dismissing the claim or a party of the claim,
(b) an order that requires the claimant to pay to the respondent a specified amount of money,
(3) In making an order under this section requiring a party to a consumer claim to pay a specified amount of money or to take any other specified action, a tribunal must, unless it has good reason to the contrary, specify a period within which the money must be paid or the action must be taken.
(4) If, in the course of hearing a consumer claim, it appears to a tribunal desirable to do so, it may make an interim order under subsection (1) or (2) pending final determination of the claim.
(5) Whenever a tribunal makes an order under subsection (1), (2) or (4), it may make such ancillary orders as it considers necessary for the purpose of enabling the order to have full effect.
(6) In making an order under this section, a tribunal may impose such conditions as it considers appropriate.
(7) If a tribunal has made an order under this section which has not yet ceased to have effect, the tribunal may, on the application of the person against whom or in whose favour the order was made or of its own motion, make a further order suspending the operation of the first-mentioned order:
(a) for such reasons and for such period, or
(b) until the happening of such event or the fulfilment of such condition,
as the tribunal specifies in the further order.
12I Power to make additional orders
(1) In determining a building claim wholly or partly in favour of a respondent to the claim, a tribunal may make such one or more of the following orders as it considers appropriate:-
(2) This section does not affect the power of a building disputes tribunal to make an order under section 30(1) (orders in favour of claimant).
(a) any order it could make under section 30(2).
(b) …
(c) an order that requires a claimant to supply to the respondent specified services other than work,
(d) in the case of a claim for relief from payment of money, an order declaring that a specified amount of money is not due or owing by the respondent to the claimant,
(e) …
(3) Orders under this section are considered to be orders under section 30.
14 In addition to s30(7) set out above, sections 25, 33, 34 and 36 dealt with the finality of orders of the Tribunal and the Tribunal’s powers to review or alter previous orders it has made. So far as is relevant these sections provided:-
25 Rehearing of certain consumer claims
(1) If a tribunal has decided an issue in dispute in the absence of a party to a consumer claim or a consumer claim has been dismissed under section 24(2), a referee may, on application in the approved form lodged at the registry within 14 days after receiving notice of the decision or the order dismissing the claim, order the claim to be re-heard if satisfied that there was sufficient reason for the party’s absence.
33 Power to correct tribunal orders
If an order made by a tribunal contains:
the tribunal, of its own motion or on the application of a party to the consumer claim in respect of which the order was made, or another tribunal, on the application of such a party, may correct the order.
(a) a clerical mistake,
(b) an error arising from an accidental slip or omission,
(c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order, or
(d) a defect of form,
34 Order of tribunal to be final
An order of a tribunal is final and binding on all parties to a consumer claim that is heard and determined by the tribunal and no appeal lies in respect of an order of the tribunal. However, this does not prevent a claim being renewed under section 36 and does not prevent a court granting relief or a remedy as referred to in section 12(2).
36 Enforcement of other tribunal orders
(1) This section applies to an order of a tribunal made under section 30(1)(b), (c), (e), (f) or (g) or (2)(c) or 12I (1)(b), (c), (e) or (f) but does not so apply if the operation of the order has been suspended under section 30(7).
(2) An order of a tribunal to which this section applies is enforceable only as provided by this section.
(3) A tribunal that is determining a consumer claim may, when making an order to which this section applies or later, give leave to the person in whose favour the order is made to renew the claim if the order is not complied with within the period specified by the tribunal.
(4) If an order to which this section applies has not been complied with within the period specified by the tribunal, the person in whose favour the order was made may effect a renewal of the consumer claim to which the order relates by lodging at the registry a notification in the approved form to the effect that the order has not been so complied with.
(5) The provision of this Part apply to a notification lodged in accordance with subsection (4) as if the notification were a consumer claim lodged in accordance with section 13.
(6) When a consumer claim has been renewed in accordance with subsection (4), the tribunal concerned:
(a) may make such other appropriate order under section 30 as it could have made when the claim was originally determined, or
(b) may refuse to make such an order.
15 In contrast with section 36, section 35 of the Act dealt with the enforcement of orders for the payment of money. For present purposes it is sufficient to set out sub-sections 2 and (3):-
(2) Whenever a tribunal has made an order under section 30 requiring the payment of an amount of money to a party to a consumer claim:
(a) that party may enforce the order by filing in a Local Court a copy of the order, certified by the registrar of consumer claims tribunals to be a true copy, together with an affidavit executed by that party:
(i) specifying the amount then unpaid under the order, and
(ii) if the order is to take effect only when a default has occurred, specifying particulars of the default, or
(b) the registrar of consumer claims tribunals may, at the request and on behalf of that party, enforce the order either:
(i) by filing in a Local Court …
(3) When
(a) a copy of an order of a tribunal and an affidavit or a certificate are filed in a Local Court in accordance with subsection (2)(a) or (b)(i)
(b) the contents of an order of a tribunal and of a certificate are transmitted to the Clerk of a Local Court in accordance with subsection 2(b)(ii).
The order shall, for the purposes of the Local Courts (Civic Claims) Act 1970 be taken to be an unsatisfied judgment for the amount specified in the affidavit or certificate as being unpaid.
16 Against the background of these provisions, I turn to a consideration of the events to which I have referred. That task has been made no easier by the fact that there was no appearance before me by or on behalf of any of the Defendants.17 In that regard, it is probably desirable to record that the First Defendant filed a submitting appearance, save as to costs. The Fourth Defendant Mr Ali also filed a submitting appearance, save as to costs, and an affidavit on file showed that he was notified of the date the matter was first listed before me, viz. Monday 14 July 1999. It could not be reached on that day and was heard on the following day. A letter from Mr Wignall, who was a party to the proceedings before the Consumer Claims Tribunal, indicated that he was aware of an earlier hearing date of 25 March 1999 and had no wish to attend.
18 An appearance was entered for the Second and Third Defendants by McInnes Pynt, solicitors but on 21 April 1999 they filed a notice of ceasing to act for the Third Defendant. The matter had previously been mentioned on Mr Pynt’s behalf when it was before Adams J on 13 April 1999 and stood over until 4 May 1999. On that day there was no appearance on behalf of the Third Defendant.
19 A company search which was tendered showed that the Second Defendant whose directors and shareholders included Mr McInnes and Mr Ali was deregistered or dissolved on 3 July 1998. It had failed to file its annual returns due on 31 July 1997 and 1998. There was nothing to suggest that the Plaintiff had taken any steps under s601AH of the Corporations Law to have the company reinstated.
20 However, before the matter came before me, it had been before this Court on no less than 11 previous occasions, viz, 2 June, 15 July, 4 August, 1 and 15 September, 6 October, and 17 December 1998, the 25 March, 13 April, 4 and 21 May. Although the above account of knowledge of the defendants of the hearing before me is not as complete as one might have wished, when regard was had to the amount in issue, the period over which and the number of times the matter had been before the Tribunal and this Court and the possibility of moulding any orders to suit the circumstances it seemed to me that I should proceed. Regrettably, demands on my time by other matters in this Court’s lists, particularly of a criminal nature, have made this judgement much delayed.21 There is no reason to suppose that there is anything to be criticised in the procedure or orders of the Tribunal on 24 April 1996.
24 April 1996 Orders
29 May 1996 Orders
22 The terms of section 36(4) make it clear that it is only a person in whose favour an order has been made who can effect a renewal of a consumer claim. On 24 April 1996 when the tribunal first made any order in the proceedings, the only person in whose favour an order was made was the Plaintiff. Thus there was no basis for the “Renewal of Claim” lodged by Mr McInnes on 9 May 1996.
23 The “Renewal of Claim” clearly did not purport to be itself a claim within s13 and, as I have indicated, the reference number given in it was that borne by the Plaintiff’s claim originally lodged. The foundation of the tribunal’s jurisdiction to make an order is that there be a claim or other authorised process before it and in these circumstances the orders made on 29 May were without jurisdiction. They were thus at least liable to being quashed or the subject of other relief under section 12. I would go further. In my view those orders were void and were not saved by s34. When that section makes binding on the parties to a consumer claim, orders of the Tribunal, the section must refer to a valid claim under the Act, not merely some application which never purported to be a claim, as distinct from a (unauthorised) renewal of some other claim.
31 July 1996 Orders
24 However, Section 36(4) did authorise the Plaintiff to renew his claim. I deal below with the question whether this entitlement depended on the Tribunal having given leave under s36(3) for the claim to be renewed but that leave was in fact given. And even if it covered only one application to renew, given the invalidity of the renewal of 9 May 1996, the leave had not been expended. The terms of the document referred to in paragraph (iv) above suggest the Plaintiff was foreshadowing that he would seek to renew his claim rather than that, by the document, he was seeking to do so, but the fact of the orders made by the Tribunal on 31 July 1996 and the absence of any other evidence bearing on how these came about lead to the inference that the Plaintiff did in fact renew his claim. The orders made on 31 July 1996 are not subject to the same deficiency as those made on 29 May.
25 Section 36(6) provided that once the claim had been renewed the tribunal could make such appropriate order under section 30 as it could have made originally and section 30(2)(b) authorised the making of an order requiring the Plaintiff who is the original claimant to pay to the Respondent a specified amount of money. Thus, subject to one matter, the orders made on 31 July 1996 were binding on the parties against whom they were made. The qualification arises out of the inclusion in the order for payment by Mr Flaherty of the words “at completion of the remedial works.”
26 Such a limitation is calculated to cause problems in any building dispute where there is an issue about the quality of the work which has been done. Be that as it may, the inclusion of the words would seem authorised by s30(6) which entitled the Tribunal to impose conditions. Implicit in the words used was the condition that the remedial works will be effected. On the other hand, the inclusion of these words does not sit happily with the enforcement provisions in s35. Completion of the remedial work is not a “default” within the terms of s35(2)(a)(ii). It can not have been intended by the legislature that an order for payment such as the Tribunal made would be enforceable until the money was not only the subject of an order but also due, yet s35(2)(a)(i), if applied literally, would enable the order to have been registered immediately after it was made and before the remedial work was done. From the time the order was made there was an amount unpaid under it.
27 However this situation is likely to exist whenever the Tribunal might make an order for the payment, accompanied by conditions. The difficulty can be accommodated by regarding s35(2)(a)(i) as referring to amounts unpaid but immediately due and payable. Given an affidavit was required as part of the registration process in the Local Court, there would be no undue difficulty in dealing with this additional complication.
28 Accordingly, the orders made on 31 July 1996 were valid orders of the Tribunal.
23 July 1997 Orders
29 In terms, the order that the Plaintiff pay Mr Ali Leonard $8,500 at completion of the remedial works was the only order made on 31 July 1996 in favour of any of the Defendants. Although an order contemplated by s30(2)(b) of the Act, this order is not one referred to in s36(1) which, as its title indicates, is concerned with the enforcement of orders other than orders for the payment of money . Mr Ali Leonard was thus not, within s36(4) a “person in whose favour” an order to which the section applied and was thus not someone entitled to effect a renewal of the consumer claim in January 1997. Nor was The Brick Wizard Pty Ltd, on whose behalf Mr McInnes purported to lodge the Renewal of Claim.
30 Furthermore, any entitlement to lodge a Renewal of Claim is, by the opening words of s36(4), conditional upon the non compliance with a previous order within the period specified. The order requiring Mr Flaherty to pay the sum of $8,500 required that the money be paid at the completion of the remedial works. This completion would seem not to have occurred and though there is some suggestion that this was due to Mr Flaherty failing to set a date for the rectification work to occur, it does not necessarily follow that the terms of sub-section 4 could be ignored. However I do not need to determine that question.
31 The Tribunal’s entitlement to make an order under s36(6) was dependent upon the claim having been renewed in accordance with s36(4) by someone in whose favour an order to which the section applied had been made. That had not occurred so the Tribunal was not entitled to make the orders it did on 23 July 1997. These were also void.
4 September and 1 October 1997 Orders
32 The next orders made by the Tribunal were on 4 September. The inspiration for the initial decision to re-list is not apparent as the time for compliance by Mr Flaherty, viz 23 August 1997 had not then expired. The time for compliance with the order of 23 July had expired by the time the Tribunal dealt with the matter on 4 September, although I am unable to see any basis upon which the Tribunal was then entitled to deal with the matter. There seems to have been no “Renewal of Claim” under s36(4) and in any event, for the reasons given in respect of the orders of 23 July 1997, any renewal by the Defendants was invalid. The circumstances do not seem then to have been within s33 and the orders made by the Tribunal on 4 September were also orders it was not entitled to make.
33 I can pass over the order made on or about 1 October 1997 as unimportant so far as the proceedings before me are concerned. It could have no higher status than the order it sought to correct.
11 February 1998 Orders
34 The “Renewal of Claim” lodged by Mr Ali and New System Brick Veneering Pty Ltd on 6 January 1998 suffers from the same deficiencies as did that considered in relation to the 23 July 1997 orders. However that lodged by Mr Flaherty on 13 January 1998 did not. He had in his favour an order which, on its face, was an order under s30(1)(b) of the Act, and thus one to which s36 applied. It may be that the “order” which Mr Flaherty had in mind in his Renewal of Claim was one made by the Tribunal on 4 September and/or 1 October but there was a valid one to similar effect still operative since 31 July 1996. Subject to the matters referred to below, the Tribunal was entitled to exercise its powers under s36(6) and the orders for payment by Mr Flaherty made on 11 February were orders the Tribunal was entitled to make.
35 However, it is necessary to consider the effect of sub-sections 36(3) and (4). While the terms of sub-section 4 do not in themselves suggest leave is required before a renewal of a consumer claim can be effected, that approach would make sub-section 3 otiose. When the scheme constituted by the two sub-sections is appreciated, it is clear that leave to renew a claim is required. As sub-section 3 provides, that leave may be given at the time an order contemplated by sub-section 1 is made or later.
36 In this case the only leave given by the Tribunal was at the time of the original order, viz 24 April 1996. After that date a valid renewal application was made by the Plaintiff leading to the (valid) orders made on 31 July 1996. Was the leave originally given, spent? In my view it was. Although the sub-sections presently under consideration do not spell this out with clarity, their terms seem to connect the grant of leave and renewal application with one previous order. The sub-sections do not seem to contemplate, for example, that the grant of leave on 24 April could extend to non-compliance with orders made later and the form or details of which may not have themselves been in contemplation at the time leave was granted, or that one grant of leave could form the foundation for the series of orders made in this case. The importance of the finality of litigation argues for this conclusion. So does the fact that, unless the Tribunal is satisfied that the circumstances are such that leave should be granted, the other party will not again be troubled by or have the need to attend further to the litigation.
37 Thus both the Renewal of Claims made in January 1997 were made without the leave which was a prerequisite to any validity. Should the fact that the Tribunal entertained the Renewal of Claim made on 13 January 1998 be regarded as an implicit grant of leave? I my view it should not. In the first place the sub-sections contemplate that any leave will be granted prior to a Renewal of Claim being lodged. Secondly, the fact that a two stage process is contemplated by the terms of the sub-section means that there were seen by Parliament to be different factors relevant to each stage. Again, the desirability of litigation coming to an end provides an obviously relevant factor in this regard. There is nothing to suggest that the Tribunal ever turned its mind to the question of leave after 24 April 1996. c.f. Malvaso v The Queen (1989) 168 CLR 227.
38 Accordingly the Tribunal was not entitled to embark on the hearing which led to its orders of 11 February 1998.
39 This conclusion makes it strictly unnecessary for me to consider Mr Flaherty’s complaint that he was denied natural justice by not being given an opportunity to check or challenge the quotation from Modular Building Systems but, having considered the matter, I think I should. In my view natural justice was denied.
40 It may be conceded that the extent of time which had passed and either Mr Flaherty’s refusal to permit the defendants to effect the remedial work or their failure to effect it, or both - and these issues are not for me to decide - meant that by February 1998 the time had arrived for orders different in kind from those made previously. It may also be conceded that it was not unreasonable for such orders to take the form whereby there remained no obligation on the Defendants to undertake remedial work and whereby they would be paid the value of the work they had done or the contract price(s) less an appropriate allowance for the cost of rectification. However, neither the Renewal of Claim lodged by Mr Flaherty or that lodged by New System Brick Veneering Pty Ltd suggested that some such order would be sought. Neither document raised the issue of valuation of the work done or the cost of rectification.
41 Furthermore, s23 of the Consumer Claims Tribunals Act provided:-42 It is unnecessary for the purposes of this case for me to explore the full operation of these provisions but it is clear that if evidence was to be given as to the cost of rectification work, it was to be done on oath or by statutory declaration. A “Quotation” such as that given by the Proprietor of Modular Building Systems in the terms set out below does not answer this description.
(1) At the hearing of a consumer claim, evidence relevant to the determination of the claim may be given orally or in writing.
(2) If evidence at the hearing of a consumer claim is to be given orally, it must be given on oath.
(3) If evidence at the hearing of a consumer claim is to be given in writing, it must be given either on oath or by statutory declaration \, as the giver of evidence prefers.
(4) A tribunal is not bound by the rules or practice of evidence and, subject to subsections (2) and (3), can inform itself on any matter in such manner as it considers appropriate.
“I have inspected the property from the road way and from the information supplied to me for the work to be done at the rear, I can give you a estimation.
To rectify the work done to the top storey addition and bringing the work to a standard acceptable to Manufacturers and Consumer Claims Tribunal.
COST: EIGHT HUNDRED AND TWENTY DOLLARS $820.00.”
43 Although paragraph 6 of the Reasons of the Tribunal of 11 February 1998 indicate that the evidence of Mr McInnes was relied on, that and the next paragraph of those Reasons show that the Tribunal also relied on evidence which did not comply with s23. While it is not the case that every breach of s23 or, indeed every breach of rules relating to evidence generally, gives rise to a denial of natural justice, when regard is had to the fact that neither Renewal of Claim indicated that the issues of rectification costs was going to arise, and the fact that that course adopted by the Tribunal in breach of s23 was one which precluded the Plaintiff from challenging the evidence on which the Tribunal relied, in my view there was a denial of natural justice.
44 The evidence before me does not disclose whether the Plaintiff made any complaint at the time. However, in the circumstances of this case, that does not matter. The nature of the Tribunal, the absence of legal representatives which the Act requires and the fact that the parties before it must in many cases be ill educated and either ignorant or inexperienced in many of the issues which arise, placed an obligation on the Tribunal to ensure that matters are dealt with properly. Thus, if issues as to which a party has no reasonable notice arise it may be that there is a responsibility on the Tribunal to offer an adjournment to ensure that justice is done - c.f. Sullivan v Department of Transport (1978) 20 ALR 323 at 343.
45 The question then arises what orders should be made. Subject to the question of utility and the consequences of the de-registration of New System Brick Veneering Pty Ltd, the Plaintiff would be entitled to orders to the effect of those set forth in sub-paragraph (ii), (iii), (v), (vi), (vii) and (viii) in paragraph 1 above, confining those orders to the topic of the lack of jurisdiction. I see no utility in the order set forth in sub-paragraph (i) although the order of the Tribunal on 24 April 1996 was valid. The orders of 31 July 1996 were made within jurisdiction and valid, so the orders referred to in sub-paragraph (iv) and paragraph 2 should not be made. The orders made on 11 February 1998 were made without jurisdiction and, at least in the case of the order in favour of Mr Ali, in denial of natural justice.
46 However to set all of the orders of the Tribunal with which I have found fault aside, or to make any other order affecting all of them would be to make orders which affected the rights of New System Brick Veneering Pty Ltd. No submissions directed to the precise form of orders, as distinct from the overall merits of the Plaintiff’s claim, were made at the time of hearing and in these circumstances, it seems to me that I should make orders which bear only on the situation of the Plaintiff and Mr Ali and give liberty to any party to make application within a limited time for further orders. However the proceedings should not be left open-ended and my intention is that, in the event no further application is made within the time limited, the orders now made will be complete and final.
47 I recognise that the limited orders I do propose to make will still leave extant earlier orders of the Tribunal. However, these have all been superseded by later orders which I have not set aside. Having regard to this and to the conditional nature of at least most of those adverse to the Plaintiff, I doubt whether my failure to set such earlier orders aside will create a practical problem. Should the Plaintiff’s legal advisers take a different view, they may avail themselves of the liberty to apply (on notice to all parties who would be affected by any proposed further orders). Should one of those parties be New System Brick Veneering Pty Limited, those legal advisers should consider the provisions of the Corporations Law.
48 Furthermore, while s 12 of the Act entitles the Court to make orders or declarations when there has been an error on the part of the Tribunal which falls within the terms of that section, the section precludes any declaratory order to the effect that a decision of the Tribunal was within jurisdiction or otherwise correct. In light of my reasons concerning the validity of a renewal of claim in the absence of prior leave, it is inappropriate that I refer the matter back to the Tribunal. Accordingly the orders I make are as follows:-
1. As between the Plaintiff and Mr Leonard Ali,
(i) Declare that the First Defendant had no jurisdiction to conduct the hearing and make the determination of the claim reflected in the Tribunal’s orders of 11 February 1998;
(ii) Declare that in the hearing and determination of the claim reflected in the First Defendant’s orders of 11 February 1998, the Plaintiff was denied natural justice;
(iii) Set aside the order of 11 February 1998 that “Brian Flaherty (to) pay Leonard Ali of 6 Percy Street North Lambton 2299 the sum of $2,180 on or before the 11 March 1998 in settlement of this claim; and
(iv) Reserve liberty to any party to apply within 2 months of today for any further relief, including an extension of the time referred to in this order.
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