Hutchings v CTTT

[2008] NSWSC 717

CITATION:	Hutchings v CTTT [2008] NSWSC 717
HEARING DATE(S):	13 February and 9 May 2008
JUDGMENT DATE :	17 July 2008
JUDGMENT OF:	Smart AJ at 1
DECISION:	See para 67
CATCHWORDS:	No denial of procedural fairness by CTTT - adjournment refused - insufficient evidence produced to support application - Rehearing refused due to lack of sufficient evidence - No question of general principle - case turns on its own facts
LEGISLATION CITED:	CTTT Act, 2001
CATEGORY:	Principal judgment
PARTIES:	Brian Sydney Hutchings v Consumer Trrader & Tenancy Tribunal (CTTT) and Yolanta Glinka and Margaret Glinka
FILE NUMBER(S):	SC 30069/07
COUNSEL:	M F Galvin (Hutchings) CTTT submitting E Petersen (Y & M Glinka)
SOLICITORS:	Lou Baker & Associates (Hutchings) I V Knight (CTTT - submitting) Macquarie Legal Centre (T Simon) (Y & M Glinka)
LOWER COURT JURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	HB 07/22604 HB 07/28858
LOWER COURT JUDICIAL OFFICER :	CTTT Members

-

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SMART AJ

Thursday 17 July 2008

30069/07


BRIAN SYDNEY HUTCHINGS

v
CONSUMER TRADER & TENANCY TRIBUNAL (CTTT) and YOLANTA GLINKA and MARGARET GLINKA
JUDGMENT

1 Pursuant to s 69 of the Supreme Court Act Mr Hutchings seeks a declaration that the decision of the CTTT on 14 May 2007 whereby it did not adjourn the proceedings instituted by V & M Glinka and ordered him to pay them $19,932 was attended with procedural unfairness, the quashing of the CTTT's orders and a direction that it hear and determine the proceedings according to law. Relief under s 67 of the CTTT Act, 2001 sought in the plaintiff's amended summons was not and could not be pressed.

2 On 27 April 2007 Y & M Glinka lodged an application with the CTTT seeking an order that Mr B S Hutchings pay them $32,200. That was accompanied by a detailed report by Martin D Sadler headed "Building Construction Technical Inspection Report" which was critical of the work done and a 2006 report from Peter Stubbs, Principal Building Inspector, Office of Fair Trading, and a statutory declaration by M Glinka. That declaration stated that Mr Hutchings said he was very experienced in concreting, that he had his own business and employed people and that together they would fix the problem. He said that if any more of the slabs in the driveway in front of the garage were removed the walls above the garage would crack. Mr Hutchings rang the original contractor in front of Y and M Glinka and advised him not to remove any more of the slabs as the walls would crack. Ms Glinka said that Mr Hutchings organised JJJ Concreting to lay concrete where it had been removed and they paid him $3200. Mr Hutchings sprayed over the whole driveway subsequently. The materials accompanying the application were sufficient to establish a case against Mr Hutchings unless rebutted. Three quotations as to rectification costs accompanied the application as well as a copy of a complaint sent to Mr Hutchings on 5 August 2005 by registered mail.

3 A brief description of the work contracted for as appearing in Mr Stubbs' report was:

"Resurfacing of part of the existing driveway and the supply and laying of new concrete layback and paths."

4 Under the heading in the Application form, "14. What is your dispute about" this has been written:

1. The concrete in front of the garage not removed on strong Brian H advice because he said the walls would crack

2. the driveway and footpath have cracked in many places

3. the spray is peeling off

4. the existing pattern still visible and an uneven thickness of the spray and saw cuts also visible

Replacement of the driveway is now going to cost:

$25,000. Quotations attached.

There was also a claim for $7200 paid on 13 December 2004.

5 By Notice of Conciliation and Hearing bearing date 2 May 2007 which Mr Hutchings stated he received on 9 May 2007 the CTTT advised him that the application of Y and M Glinka was listed on Monday 14 May 2007 at 9.15 at CTTT Level 2/10 Valentine Avenue Parramatta before the Tribunal.

6 The Notice stated:

"If you do not appear at this time and place the Tribunal may decide the matter in your absence. The decision made will be binding on you."

7 The Notice contained these instructions, amongst others:

"1. Do not bring any witnesses to the first hearing. The Tribunal will tell you if you need to bring witnesses to a later hearing. However you should bring with you all relevant documents or materials to support your case such as
…
. Any photographs showing the condition and state of repair of the premises …
. Copies of any quotes, accounts or receipts for work carried out or to be carried out to the premises
. Any written reports, statements, statutory declarations or affidavits from persons who can provide relevant information about your case"

2. If you seek an adjournment you must advise the Registrar prior to the hearing and obtain consent of the other party. If a new hearing date is set you will be advised in writing."

8 On 10 May 2007 Mr Hutchings sent a FAX to the CTTT in these terms:

"I Brian Hutchings am advising the CT & TT that I am not able to attend the Tribunal listed for the 14th May 2007. I received youre ( sic ) documents on Wed 9th 2007 [ .] With so short notice I am unable to change my medical arrangements.
Please fax back to me on 9 836 5286 acknowledging
Your receipt of this
B S Hutchings."

9 That FAX was received about 1635 hours on 10 May 2007.

10 At about 1507 hours on 11 May 2007 Mr Hutchings received a FAX from the Tribunal Registrar stating that the hearing on Monday 14 May 2007 had not been adjourned. Mr Hutchings was advised that his adjournment request had not been granted and that no evidence of medical arrangements or appointment had been provided.

11 In an accompanying facsimile cover page the Registrar wrote "If you have any queries please call me on the above number". The Registrar stated an incorrect telephone number but stated the correct facsimile number.

12 Mt Hutchings sent a FAX which was received by the CTTT about 1533 hours. It was marked "Attention Meena". It pointed out that she had given him a telephone number which did not work and requested her to ring him urgently on a specified telephone number. Mr Hutchings noticed that the CTTT had another number which he telephoned. The Registrar (Meena) spoke with Mr Hutchings on the telephone and he gave this version of events:

BSH: "I don't have enough notice to change my medical arrangements. I have a back and leg injury as a result of a motor accident. It causes me pain and I have massage sessions and doctors appointments for medicines. My back is giving me trouble even today, unless I improve I won't be able to go anywhere on Monday.

Meena: 'I will go see my supervisor about this'.
At that time Meena then put me on hold on the phone and returned to me after a minute or two. When Meena returned the conversation continued with words to the effect:
Meena: "I have spoken to my supervisor and its OK. It would be the correct thing for you to advise the other party that the hearing has been adjourned. Fax me your confirmation."

BSH: "Do I need to confirm anything else? What is the correct number to ring you on? The number on this page is giving me a fax tone. Also for adjournment how soon can it be heard because I want to have a chance to say the true circumstances?"

Meena: "The number should be 9895 0011. I apologise for the error on the page. I can't advise how long, a letter will go out."

BSH: "I will try to contact Yolanta and ring you back."
On 11 May 2007 immediately after I spoke to Meena I sent a facsimile to the CTTT.

13 At 1551 hours on 11 May 2007 the CTTT received this FAX from Mr Hutchings:

"Attention Meena
I Brian Hutchings have a doctor's appointment on Monday
I present my receipt upon request.
Meena as you suggested I will advise the other people.
9895 0011
Thanks for your help Meena."

14 In a file note made at 3.33:56 on 11 May 2007 the Registrar (Meena Jao) recorded a different version of events. That contemporaneous file note read:

"Details: RANG RESPONDENT BRIAN AFTER RECEIPT OF HIS FAX. HE WAS VERY UPSET AS I HAD GIVEN HIM A WRONG PHONE NO. HE WAS RIGHT. I APOLOGISED FOR THAT. HE WAS VERY UPSET IN REGARDS TO THAT AND ALSO WHY THE MATTER WAS NOT ADJOURNED AS HE RECEIVED THE NOH ONLY 2 DAYS AGO. I SUGGESTED TO HIM TO SEND A COPY OF HIS APPOINTMENT LETTER AND THE NOH WAS SENT OUT TO HIM ON 2/5/07.

BRIAN DID NOT HAVE A COPY OF THE APPOINTMENT LETTER AS HE MADE THE APPOINTMENT OVER THE PHONE SUGGESTED TO HIM TO SEND US A FAX EXPLAINING THAT AND THAT HE WOULD SEND A MEDICAL CERTIFICATE AFTER SEEING THE DOCTOR. HE ALSO MENTION HE WOULD INFORM THE APPLICANT THAT HE IS REQUESTING AN ADJOURNMENT.

I INFORMED HIM HIS FAX WOULD BE DEALT WITH ON MON 14/5/07."

15 That file note and a letter from the Crown Solicitor's office of 6 February 2008 to the solicitor for Y and M Glinka were admitted without objection. Relevantly the letter read:

"I am instructed to inform you that Ms Meena Jao's only recollection of her conversation with Mr Hutchings as referred to in paragraph 10 of his Affidavit is that she received a telephone call from him and made a note of their conversation. A copy of this file note is annexed.
As discussed, my client is willing to provide you with an affidavit setting out Ms Jao's recollections of her conversation with Mr Hutchings if required."
That letter was signed by Mr Marcus Steele for the Crown Solicitor. Neither Mr Hutchings nor Ms M Jao were cross-examined.

16 Counsel for Mr Hutchings also relied on an email of 6 February 2008 sent by Mr Marcus Steele to Mr Brett Eurell, Legal Officer, CTTT in which Mr Steele states:

"… I do seem to recall you informing me that you had discussed this matter briefly with Meena last year and she had told you (unsurprisingly) that she had no recollection of having a conversation with Mr Hutchings as alleged in his affidavit.
In these circumstances I advise that an appropriate way to progress this matter would be to write to the Glinka's solicitors advising them that Meena has no recollection of the alleged conversation and offering to provide a short affidavit to that effect if required."

17 There was no dispute that after 3pm on 11 May 2007 Ms Meena Jao, the CTTT Registrar, had a conversation with Mr Hutchings. The dispute was as to its terms.

18 The letter of 6 February 2008 was in somewhat more guarded terms than the email. The File Note reminded Ms Jao that she had spoken to Mr Hutchings. Her only recollection of her telephone conversation was that recorded in the file note.

19 It seems from the versions of the conversations after 3.15pm on 11 May 2007 of the Registrar and Mr Hutchings that there was discussion about Mr Hutchings speaking to the applicants about an adjournment of the proceedings on 14 May 2007. According to the Registrar's file note Mr Hutchings mentioned he would inform the applicants. Mr Hutchings' FAX received at 1551 hours states that the Registrar suggested that he advise the applicants. These are not necessarily inconsistent. The Registrar may have suggested such notification and Mr Hutchings agreed.

20 Curiously, Mr Hutchings' FAX sent at 1551 hours on 11 May 2007 does not confirm that he has been granted an adjournment nor give other than very general details about his doctor's appointment. No time was specified.

21 The Registrar records in her file note that she suggested that he send the CTTT a FAX explaining that he did not have a copy of the appointment letter as he made the appointment over the phone. He did not do so. He was to send a medical certificate after seeing the doctor.

22 Importantly she records, "I informed him his Fax would be dealt with on Mon 14/5/07."

23 Mr Hutchings said that after he sent the FAX (recorded as received at 1551 hours) on11 May 2007 he tried to ring the contact number of Y and M Glinka but there was no answer on the telephone. He said that he tried to ring the Registrar but was unsuccessful. He said that after about an hour he again tried to telephone the Registrar (Meena) at the CTTT but was unsuccessful. Mr Hutchings said that he then sent a FAX in these terms:

"HB07/22604
Attention Meena
I have again tried to contact you on the number that you gave me. I have not received a call from you on 9 836 5286
Could you please ring on 0405 582670
B Hutchings"

24 Mr Hutchings does not mention in his FAX that he had tried to contact Y and M Glinka without success. A document in these terms last quoted does not appear to be on the CTTT file. The telephone call to the Registrar may well have been made after the CTTT Registry had closed and the FAX may also not have got through. Mr Hutchings said that he did not receive a response to his last mentioned FAX.

25 Mr Hutchings said that about 1.00pm on Saturday 12 May 2007 he telephoned the contact number of Y and M Glinka. Mr Hutchings said that he had a conversation to this effect:

"BSH: The hearing on Monday has been adjourned. I've been told it would be courteous of me to advise you that the meeting has been cancelled."
YG: That doesn't suit me. It will go ahead. You don't know what I can do."

26 Mr Hutchings said that after a pause in the conversation YG said words to the effect "I'm not satisfied with that." In his file note Mr Hutchings has recorded that she (YG) will contact Meena and that he gave her the correct number to speak to Meena.

27 Ms Y Glinka said that she did not receive a telephone call from Mr Hutchings on Friday 11 May on her mobile telephone or at home and no message was left. She gave a more detailed version of the conversation she had with Mr Hutchings on 12 May 2007 when he told her the hearing had been cancelled by Fair Trading because he had a medical appointment. She asked, "How come nobody from Fair Trading rang us?" Mr Hutchings replied, "I don't know I spoke to somebody named Meena, her number is 9 895 0011 or 1300, 135, 399. Ms Y Glinka replied, "But it's Saturday. Is she going to be there?" Mr Hutchings allegedly told Ms Y Glinka "Just call her." He also allegedly said "I asked Meena should I ring them or will you do it? Meena said "… that's fine, you can notify the other party that the hearing has been adjourned." Ms Y Glinka thought it was a set-up.

28 On 14 May 2007 the proceedings came on before a Tribunal member of the CTTT. Y and M Glinka appeared. Mr Hutchings did not. At the outset the Tribunal member noted that Mr Hutchings had sought an adjournment which the Tribunal had refused. I have read the transcript of the proceedings. The Tribunal member enquired whether Y & M Glinka and Mr Hutchings had sorted anything out. Ms Glinka replied, "No". The Tribunal Member read and analysed the material filed in support of the application. She noted that the application and the material in support had been served on Mr Hutchings. She also put to Ms Glinka what she anticipated would be Mr Hutchings' defence, namely, that he only did a small part of the job and was not responsible for the complete job. Ms Glinka insisted that they had one contract and it was with Mr Hutchings even though he arranged other people to do parts of the work.

29 The Tribunal Member only allowed portion of the sum claimed, namely $19,932 and explained her reasons. She also explained that in the CTTT it was the practice for each party to bear its own costs.

30 Mr Hutchings said that on 14 May 2007 he was unable to attend the doctor's appointment because his back injury prevented him driving. Mr Hutchings explained that he was badly injured in 1992 when a truck ran over him. He spent 13 months in hospital. Eventually he was discharged from work as medically unfit with a pension which he continues to receive. He said that the work he now does is light and offers him the opportunity for light exercise for his back and leg muscles.

31 Mr Hutchings said that on Wednesday 16 May 2007 he received a letter from the CTTT. It bears date 11 May 2007 and is the hard copy of the letter faxed to him on 11 May 2007 and received about 1507 hours. Mr Hutchings said that the advice contained in the letter that the proceedings had not been adjourned was a complete surprise to him. He said "Until I read the facsimile I believed that the matter had been adjourned in accordance with my conversation with Meena on the previous Friday, 11 May 2007". There appears to be some confusion in Mr Hutchings' mind in that it was the receipt of the letter of 11 May 2007 and the coversheet by facsimile which led to him speaking to the Registrar after 3pm on 11 May 2007. Perhaps Mr Hutchings thought that the hard copy letter received on 16 May 2007 related to his oral request for an adjournment on 11 May 2007.

32 Mr Hutchings endorsed on the bottom of the CTTT letter of 11 May 2007 received on 16 May 2007 the following:

"Note. Meena advised me to contact other party and tell them of the cancelled appointment. Which I did talk ( sic) and told both ladies that Meen (sic) said a new date will be set. I said that I was not able to make the appointment because of my medical appointments."

33 Counsel for Mr Hutchings relied on the note of J Schroder of 16 May 2007 in the CTTT file:

"RESPONDENT RANG VERY UPSET AND RUDE, COULD NOT UNDERSTAND WHY THE MATTER HAD BEEN HEARD, AFTER HE HAD ASKED FOR THE MATTER TO BE ADJOURNED. TRIED EXPLAINING THE PROCEDURES TO HIM IN RELATION TO ADJOURNMENT REQUESTS, KEPT ON TALKING OVER ME AND RAISING HIS VOICE. ADVISED HIM THAT IF HE CONTINUED TO TALK TO ME IN THAT MANNER I WOULD HAVE TO TERMINATE THE CALL. MANAGED TO CALM DOWN. ASKED WHAT HIS OPTIONS WERE SUGGESTED TO HIM THAT HE LODGE A REHEARING APPLICATION, TELLING HIM WHAT PROCEDURES WERE RE: REHEARING. ALSO GAVE HIM A NUMBER OF LAW ACCESS FOR HIM TO RING. WAS EXTREMELY DISSATISFIED WITH THE OUTCOME. EXPLAINED ONCE AGAIN WHAT HIS OPTIONS WERE, ASKED FOR REHEARING APPLICATION TO BE SENT TO HIM IN THE MAIL. STATED THAT HE WOULD BE TAKING THIS MATTER FURTHER."
Counsel for Mr Hutchings submitted that this revealed Mr Hutchings' understanding of what had occurred on 11 May 2007."

34 Mr Hutchings may well have convinced himself that he had achieved what he wanted, namely, an adjournment of the CTTT proceedings on 14 May 2007. The question remains whether he was justified objectively in taking such a view. I remind myself that before this Court this is not an application to set aside a default judgment.

35 Mr Hutchings appears to have taken up the suggestion of Mr Schroder of CTTT that he lodge a re-hearing application. Such an application is permitted by s 68 of the CTTT Act on the ground, amongst others, that the applicant for the re-hearing may have suffered a substantial injustice because the decision of the Tribunal in the completed proceedings was not fair and equitable. This would embrace a denial of procedural fairness. Mr Hutchings' application bearing date 28 May 2007 was supported by his letter of 25 May 2007 in these terms:

"I could not attend the hearing dated 14 May 2007 due to medical appointments that at such short notice were unable to be changed. These concerns had been discussed with Meena and written confirmation provided by fax on Friday 11 May 2007. After these discussions it was my understanding that Meena was going to reschedule the hearing date and I was to advise the Glinka's, which I did.

I am at a loss as to why the hearing went ahead on the original date.

With regard to the situation itself I supplied a Quotation (No 0209 copy enclosed) to Y & M Glinka on 13 December 2004 with regard to spraying a pattern on their driveway.

Throughout the initial discussion with Y & M Glinka they enquired about re-concreting the surface before spraying it, to which I replied that I am not a concreter, but I could pick up business cards for concreters' from my local materials supplier.

I picked up some business cards for JJJ Concreting (Jason Semaan) at the Concreters Warehouse and passed them onto Y & M Glinka.
As I have no concreting experience I advised Y & M Glinka to seek recommendations from the customers of whomever they choose to do the concreting and deal with them direct.
My quotation was to Spray a Pattern onto their driveway, re-concreted or not this was the only job that was completed for Mr & Mrs Glinka by my company in 2004, Best Home Improvements.
If you have any further queries, please do not hesitate to contact me on 0405 582 670."

36 The letter provided an outline of the matters on which he relied. Mr Hutchings did not seem to understand that he was required to provide more detailed material and corroborate it. It was not up to the Chairperson or his delegate to seek it. Granting a re-hearing is a major step. By Notice of Order dated 4 June 2007 Mr Hutchings was advised that his application for a rehearing was not granted as the delegate of the Chairperson was not satisfied that the applicant may have suffered a substantial injustice. The following written reasons were given:

"1. It was clear that the hearing had not been adjourned and that Mr Hutchings was to provide further information to enable his request to be considered.
2. He had not provided any material in compliance with case-management directions.
3. The re-hearing does not suggest any defence.
4. There is still no corroboration of the medical appointment said to prevent attendance at the hearing."

37 The delegate of the Chairperson would have had access to the CTTT's file. The letter of 11 May 2007 from the Tribunal faxed to Mr Hutchings that day stated that the hearing on 14 May 2007 had not been adjourned and the file note of the Registrar indicated that Mr Hutchings had been told by her that his FAX would be dealt with on Monday 14 May 2007. Mr Hutchings was seeking to reverse the decision refusing the adjournment. He seemed to think that if he told the Registrar he had a doctor's appointment and subsequently produced evidence that he had attended that appointment that would suffice. He seemed to think that his assertion was sufficient. The delegate was entitled to be sceptical that the appointment could not be re-scheduled at a relatively early time if the reasons for the cancellation were made known.

38 Proceedings were instituted in this Court in a timely way. At the hearing before me on 13 February 2008 counsel for Mr Hutchings conceded, correctly, that the material before the Tribunal on 14 May 2007 was sufficient for it to make the orders which it ultimately made. Mr Hutchings also led material which, if accepted, indicated that he had a defence upon the merits. Mr Hutchings' complaint was that there had been a lack of procedural fairness.

39 The hearing could not proceed to a conclusion on 13 February 2008 because neither the transcript of proceedings on 14 May 2007 before the Tribunal member nor the Tribunal files were before this Court and I indicated that I could not and would not make a finding of a denial of procedural fairness against a Tribunal member without these. They were subsequently procured, with difficulty and delay, by Mr Hutchings' solicitor. He was not responsible for the delay. The transcript and the files were tendered by Mr Hutchings and admitted in evidence.

40 Counsel for Mr Hutchings referred to s 28 of the CTTT Act 2001. The CTTT is not bound by the rules of evidence and may enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness (subs (2)). It is to act with as little formality as the circumstances permit and without regard to technicalities or legal forms (subs (3)). The Tribunal is to act as expeditiously as possible.

41 Under s 35 the Tribunal must ensure that each party in any proceedings is given a reasonable opportunity:

(a) to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise) and

(b) to make submissions as to the issues.

42 Section 25 provides that if a party who has been notified of the time and place fixed for a hearing fails to attend, the proceedings may be held in the absence of the party. The Notice of Conciliation and Hearing sent to Mr Hutchings specifically warned him that if he did not appear at the specified time and place the Tribunal may decide the matter in his absence and that the decision would be binding.

43 The terms of the Notice also alerted Mr Hutchings to the need to obtain the consent of Y and M Glinka if he sought an adjournment as well as advising the Registrar.

44 It is obvious from the Notice that each party to the dispute was required to bring all written materials to the hearing. After looking at these and hearing the parties the CTTT member may decide on the matters on which it would hear oral evidence or argument and may fix time limits for the presentation of the respective cases – see s 28(5)(c) and (d) of the CTTT Act.

45 Counsel for Mr Hutchings relied on the following:

(a) He was given insufficient notice of the hearing date. Although it was posted on 2 May 2007 Mr Hutchings said that he did not receive the notice until Wednesday 9 May 2007 and the hearing was fixed to take place on Monday 14 May 2007. This allowed him insufficient time to prepare his case. It was very late notification and did not take into account that he may have other commitments which were either difficult or impossible to break. He had a medical appointment arranged for 14 May 2007 and that was important to him.

(b) This was the first return day of the proceedings before the Tribunal, an occasion when one would expect directions to be given in an obviously contentious matter so that both sides could make prudent preparations, obtain the evidence needed and reasonably available and fairly present their evidence and their cases. A hearing would not be anticipated as the parties were told not to bring their witnesses.

(c) The Registrar led Mr Hutchings to believe that he had been granted the adjournment he sought and would be advised in writing of the new hearing date and that he should notify Y and M Glinka of the adjournment. The FAX sent by Mr Hutchings at 1551 hours was consistent with this. It referred to his medical appointment on 14 May 2007 and his intended notification to Y and M Glinka of the adjournment of the proceedings.

(d) He was not given a reasonable opportunity to present his defence. His understanding of what had occurred was reasonably clear and was acceptable based on the course of events. While the amount at issue may not seem great, viewed objectively, it was important to Mr Hutchings who had significant disabilities and was on a pension.

(e) The Registrar had no recollection of the conversation with Mr Hutchings and was confined to her file note. Mr Hutchings' evidence as to the terms of the conversation should be accepted as it was uncontradicted.

46 On the assumption that both dates mentioned in sub para (a) of the preceding paragraph are correct, the transmission of the Notice through the post has taken an undue amount of time. If Mr Hutchings had appeared before the Tribunal Member, produced such reports as he had, outlined his case and the evidence he intended to adduce and sought an adjournment so he could adequately prepare his case it would probably have been granted and directions given for the delivery of his evidence and any evidence in reply. A fresh hearing date would probably have been given. I do not overlook two possibilities. The Tribunal Member may have endeavoured to help the parties settle the matter on the first return day or an on-site inspection may have been held which would have effectively determined the matter.

47 Having regard to the terms of the Notice of Hearing and Conciliation Mr Hutchings was not entitled to proceed on the basis that he would be granted an adjournment, especially when Y and M Glinka did not consent. There was no convincing evidence that the medical appointment could not be rescheduled once the reasons for the cancellation were explained. Any adjournment was likely to occasion loss to Y and M Glinka, particularly if either had to take time off work.

48 Even though the period of notice was relatively short Mr Hutchings was not entitled to assume that the Tribunal Member and Y and M Glinka would not wish to make useful progress on 14 May 2007 even if by way of directions. To return on another occasion for directions would be wasteful and expensive.

49 As earlier indicated the Registrar's contemporaneous file note differed in some respects from Mr Hutchings' version of the conversation and that file note was admitted without objection. As both parties made a deliberate decision not to cross-examine I deal with the dispute as to what occurred on the balance of probabilities. I was conscious that cross-examination may not have helped and that counsel were better appraised of any likely benefit from cross-examination than I was.

50 It is improbable that the Registrar would have conveyed to Mr Hutchings that the CTTT had granted him an adjournment. The CTTT requires evidence of medical arrangements and/or the appointment to be provided. No time for the appointment was provided. Depending on the time this may affect the course the CTTT would take. The CTTT does not act solely on the assertion of the party that he or she has a medical appointment. It would also need to be persuaded that the appointment could not be rescheduled at a relatively early date once the reasons for the cancellation were explained. The other party's consent is required to an adjournment in the absence of a ruling given after a contest, unless there was some persuasive material, for example, being admitted to hospital.

51 The terms of the letter dated and faxed on 11 May 2007 were explicit.

52 Assuming that Mr Hutchings is correct that the Registrar placed him on hold and that she spoke to one of the members it is improbable that such member would have departed from the requirement that the applicant for the adjournment produce acceptable corroborative evidence of the medical appointment and that it could not be rescheduled at a relatively early date.

53 Mr Hutchings could not and should not have expected to obtain an adjournment when he did not have the consent of Y and M Glinka and there had been no notification of them prior to 12 May 2007 and no hearing.

54 The Registrar has recorded that she told Mr Hutchings that his FAX (seeking an adjournment of the hearing) would be dealt with on Monday 14 May 2007. That is probable especially as Mr Hutchings had not produced any additional evidence.

55 I am not persuaded that the Tribunal failed to give Mr Hutchings a reasonable opportunity to be heard.

56 Even if I had been persuaded that Mr Hutchings had established procedural unfairness I would have declined relief on discretionary grounds. His application for a rehearing was not sufficiently detailed. On the application form for a re-hearing it is stated:

"It is not enough to simply say the decision was not fair and equitable.

You must describe in detail how the decision is not fair and equitable

If you were unable to present your case, explain why (attach a medical certificate if you were ill)
…
You must also say what you could have told the Tribunal if you had been there, that might have led to a different decision."

57 Under this section of the form Mr Hutchings wrote:

"Please see my attached documents"

58 I have earlier set out the terms of the attached letter of 25 May 2007.

59 Attached to that letter was a copy letter of 25 May 2007 purporting to be from Jason Semaan, Director, JJJ Concreting stating:

"I carried out concreting work for Miss Yolanta and Miss Margaret Glinka in January 2005. I made arrangements and paid for an inspection with Baulkham Hills Council on 12 January 2005.
All communications and arrangements pertaining to the entire job were made with Miss Yolanta and Miss Margaret Glinka directly."

60 Mr Hutchings also enclosed a copy Quotation (0209) which he said he supplied to Y and M Glinka on 13 December 2004 "with regard to spraying a pattern on their driveway." With the writing on the quote it is not easy to follow. It seems that although his initial quote was for $4560 he in fact charged Y and M Glinka $4000.

61 Mr Hutchings did not provide any corroborative medical evidence with his application although that was suggested, if not sought, in the application form.

62 The delegate of the Chairperson found that the re-hearing application does not suggest any defence. Mr Hutchings' letter of 25 May 2007 does not expressly state his defence and he does not expressly purport to deny that he was responsible for the complete job of re-concreting and spraying the concrete surface and to assert that he was responsible only for spraying the surface of concrete laid by others engaged by Y and M Glinka. It was not in issue that JJJ Concreting carried out the concreting. The issue was whether Mr Hutchings was responsible to see that the work was carried out in a good and workmanlike manner. There is no point in attempting to spray or spraying the surface with a pattern if the re-concreting is not satisfactory. Mr Hutchings does not deny that he had advised Y and M Glinka not to remove any further slabs from the driveway in front of the garage as the walls above the garage would crack.

63 I would dismiss the Amended Summons.

Costs

64 The hearing was not able to proceed on 13 February 2008, the day on which the matter was first listed for hearing because neither the CTTT file was available nor the transcript of the hearing before the Tribunal member. I declined to proceed until they were available. The fixing of a date for hearing when these were not available should not have occurred and the Court should have been told of this deficiency. It was the primary responsibility of the plaintiff to attend to ensuring that the Court had all the relevant papers. The defendant should have alerted the Court to the incomplete nature of the papers before the Court. On 13 February 2008 I ruled on the admissibility of the various affidavits. If the papers had been complete in the first instance the hearing would have concluded in one day and the second hearing date would not have been required.

65 Provisionally, I am of the opinion that the appropriate costs order is that the plaintiff pay the costs of the defendants Y and M Glinka on an ordinary basis of a brief of hearing of one day and a second day as on a costs of the day and not a refresher basis. In view of the small amount at issue I have endeavoured to avoid listing the matter for further hearing on the question of costs with the attendant extra expenses. However, if either party so desires I will list the matter for argument as to costs.

66 I record that following the hearing on 13 February 2008 it was not necessary for various scheduled mentions to occur and that the ultimate hearing date was arranged between my Associate and the solicitors for the parties.

67 I make the following Orders:

1. Amended Summons dismissed.
2. Subject to either party not advising my Associate and the opposing party in writing within 7 days that he or she desires to argue the question of costs the Plaintiff to pay the costs of Y and M Glinka on an ordinary basis of a brief of hearing of one day and of a second day as on a costs of the day and not on a refresher basis.

3. These orders are not to be taken out for a period of 7 days.

4. Exhibits may be returned.

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