Maxwell-Smith & Anor v Consumer Claims Tribunal

[1999] HCATrans 430

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S76 of 1999

B e t w e e n -

EUGENE MAXWELL-SMITH and INGE MAXWELL-SMITH

Applicants

and

CONSUMER CLAIMS TRIBUNAL

First Respondent

S & E HALL PTY LIMITED

Second Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 1999, AT 3.32 PM

Copyright in the High Court of Australia

MR E. MAXWELL-SMITH appeared in person:   I am representing Inge Maxwell-Smith and myself, your Honour.

MR A.S. WARREN:   If it please the Court, I appear for the second respondent.  (of Sautelle & White)

McHUGH J:   Mr Maxwell-Smith, just before you commence and before your time starts to run, the Registrar has given me a certificate stating that she has been informed by the Crown Solicitor for New South Wales, solicitor for the first respondent in this matter, that the first respondent does not wish to be represented at the hearing of this matter and will submit to any order of the Court save as to costs.

Yes, Mr Maxwell-Smith.

MR MAXWELL-SMITH:   Your Honours, I shall be very brief in what we consider to be a relatively simple case.  The summary of argument in our application book outlines the reason for this special leave to appeal application and there is no need to repeat these.  However, we would like to highlight the three most significant points.

The first respondent, the Consumer Claims Tribunal, failed to recognise that the second respondent, S and E Hall Pty Limited, (a) did not give correct credits when they were due under contract and charged as extra to contract items ‑ ‑ ‑

McHUGH J:   I appreciate the points you make about those, but they are not matters within the cognisance of the Supreme Court.  They are errors within jurisdiction if they be errors at all.

MR MAXWELL-SMITH:   Can I lead up to the point?

McHUGH J:   Yes, I am just pointing ‑ ‑ ‑

MR MAXWELL-SMITH:   I am sorry, your Honour.  For argument’s sake, on the first issue, that is of the credits, we maintain that, as the example indicates in the application book, that the fact that the credit was not correctly given can be easily established by comparing a contract and a final account.  The point made here is that the Tribunal did not take into account relevant information.  On the second issue, and that is the issue of extra to contracts and ‑ ‑ ‑

McHUGH J:   Just before you go on to your second point, do you appreciate the distinction between errors of law or fact within jurisdiction and errors of law or fact that destroy jurisdiction?

MR MAXWELL‑SMITH:   Obviously, your Honour, I am not experienced in matters of law, so I am trying to do my best in what I consider to be an error of law.

McHUGH J:   Yes.

MR MAXWELL‑SMITH:   And in the second example that I would like to give to the Court, your Honour, is the fact that there were, for argument’s sake, extra to contract claims by the second respondent and the point made here is that the so‑called disputed variations to contract should have been resolved by the rules of the contract by the Tribunal.  In other words, they acted ultra vires.  They had no authority to contradict what was written in the contracts, change the rules of the contract or amend those rules.

McHUGH J:   Well, parties can amend contracts, even orally.  They can terminate written contracts orally.

MR MAXWELL‑SMITH:   But in this particular case it was a written contract which was not altered orally or in any other fashion, your Honour.

McHUGH J:   Well, it seems to be that it was altered orally by conduct or at least that is what the Tribunal found, rightly or wrongly, but these are not matters that can be examined in the courts of record.  Now, some people may regret it, that that is the situation, but Parliament has, in effect, said, “The Consumer Claims Tribunal have got a free hand as long as they stay within their jurisdiction and they do not deny natural justice.”

MR MAXWELL‑SMITH:   But this matter of jurisdiction for argument’s sake, your Honour, in the third issue that I would like to present to the Court ‑ ‑ ‑

McHUGH J:   Yes.

MR MAXWELL‑SMITH:   ‑ ‑ ‑ is that there was a great element in the dispute about unfinished work and this unfinished work is, in effect, an incomplete contract and it has been decided many years ago that if you have an incomplete contract, the contractor is not entitled to the amount of money for the work that has not been completed and that was such a clear indication of the neglect by the Tribunal to recognise this.  All the evidence, which included expert statutory declarations by assessors as well as video evidence and written quotations, that indicated that the unfinished work was well in excess of $8,500.  The claim by the ‑ ‑ ‑

McHUGH J:   I understand what you are putting, but what I am trying to put across to you to deal with is that that is an error, it seems to me, within jurisdiction, if it be an error at all.  For example, judges make errors from time to time and their judgments are set aside on appeal, but no one suggests that because they have made an error of law or fact that they did not have jurisdiction.  You have got jurisdiction to go wrong as well as to go right.  An appeal is the remedy for those errors and Parliament has taken away or not given any right of appeal against these orders of this Tribunal.  Now, you may regard that as a great injustice to persons such as yourself, but they are just not matters that can be litigated in the courts of record.

MR MAXWELL‑SMITH:   In the Act of 1987, the Consumer Claims Tribunal Act, they do outline issues that the referees have to conduct in a certain manner and in actual fact it is written in one of the cases of – of a case with the railway and I refer to this here, that it says here, in State Rail Authority New South Wales v Consumer Claims Tribunal (1988) 14 NSWLR 473; in section 31 of the Act and there was at folio 8908, and I just repeat here:

The Tribunal must determine claims in accordance with the laws of contract and its only power to depart from the law is the power to decide to give a specific remedy.

But in this particular case the Tribunal ignored the written contract which, in our particular case, was the only agreement that existed between the second respondent and ourselves and for that agreement to be ignored by a tribunal is a significant step outside their authority.

McHUGH J:   Well, it may be an error, but it does not mean that they have stepped outside their jurisdiction.  If, for example, they had made an award of damages against you for negligence, for example, well, that would be completely outside their jurisdiction.  They would have no power to make such an order, but here the order that they have made is an order that you pay a sum of money pursuant to a contract.  Now, the Tribunal may have been wrong about that, but the fact is it was an order that they had power to make.  That is the problem. 

This is a tragic case in which you have apparently expended more than $30,000 in legal costs over a sum of money of $6,000.  No court can address the matter otherwise than with sympathy to your plight, but there are rules, Mr Maxwell‑Smith, and at the moment it seems to me that the errors are errors within jurisdiction, assuming in your favour that they are errors.

KIRBY J:   It just may be the reason that Parliament has not given appeals and limited the review is to prevent people getting into the predicament that you now find yourself in, because the claims are relatively small and the costs are relatively large.

MR MAXWELL‑SMITH:   Your Honour, the fact that they actually repealed this particular Act shows that it was most unfair and did not operate ‑ ‑ ‑

KIRBY J:   Yes, but it has been replaced by another doing the same thing.

MR MAXWELL‑SMITH:   By another.  Within the Tribunal, there is an actual appeal process because they have a magistrate to whom a referee is accountable.  In this particular case a referee is totally unaccountable for whatever decisions a referee makes and that in a way is, under common law, a complete denial of justice to people like ourselves, your Honour.

McHUGH J:   Yes, you carry on.  Are they your submissions?

MR MAXWELL‑SMITH:   Well, when I in actual fact here told them those particular issues, that we have no legal right to ask for a legal appeal for this matter to be heard, then obviously ‑ ‑ ‑

KIRBY J:   Well, you have a legal right to ask, but we have a legal obligation to apply the law.

MR MAXWELL‑SMITH:   Sure.  I understand that, your Honour, but I just cannot understand how a denial of justice that has occurred in this particular case cannot be recognised and a denial of justice and a denial of natural justice in a particular case the Tribunal is also accountable for.

McHUGH J:   Yes.

KIRBY J:   Yes, thank you.

McHUGH J:   Mr Maxwell‑Smith, if there is anything further that you want to put or that your wife wants you to put, you put it.

MR MAXWELL‑SMITH:   I just wrote a conclusion in this particular case, your Honour, and that was the answer of the second respondent that our particular application for special leave of appeal was frivolous in its nature seems to be rather strange because the second respondent themselves have expended more than $25,000 in opposing our appeals and ‑ ‑ ‑

McHUGH J:   Yes.  I do not think they mean it is frivolous in that sense.  I think they mean it is frivolous in the sense that you have got no legal grounds.

MR MAXWELL‑SMITH:   Yes.  Yes, the question raised by Mrs Maxwell‑Smith once again is a matter of – as you stated before, is

within the jurisdiction, but the fact is that the outstanding work which you find is in the supporting documents from the Department of Fair Trading which they estimated at over $9,500, the Tribunal deducted from the claim of the second respondent a pitiful $596.50.  Now, that is a disgrace, your Honour, and ‑ ‑ ‑

KIRBY J:   Yes, but that is not something we can deal with.  There is no basis in which we can deal with that.

MRS I. MAXWELL‑SMITH:   Excuse me, your Honour.  I know you cannot deal any more before ‑ ‑ ‑

KIRBY J:   Yes, you are a party.  You are entitled to speak.

MR MAXWELL‑SMITH:   Okay.

MRS MAXWELL‑SMITH:   ‑ ‑ ‑ yes, because I do not want him to get an attack.  I might not express it proper, but, I mean, they did handle it without…..because the referee personally he had video evidence, he had everything what was wrong, what was unfinished on the house.  He actually came out.  He inspected it.  He saw it all and it has taken us three years now and finally the Department of Fair Trading, the insurance, sent an assessor out because even the insurance was expired and the…..and I said they had to send somebody out because we had claimed already before the insurance expired and the assessor assessed the damage.  Over $10,000.  We had to spend already nearly $2,000 to make the house livable because fumes were coming in.  The builder walked off the site.  He claimed that we owe him $7,000.  He never finished the work.  He break the contract.  He did not stick to the contract.  The Tribunal ignored all the evidence.  They never stick to the contract.  Class 11 states ‑ ‑ ‑

McHUGH J:   States that variations have got to be in writing, and there were some variations in writing.

MRS MAXWELL-SMITH:   Yes, that is correct.

McHUGH J:   But, the Tribunal found that there were other variations which you had agreed to.

MRS MAXWELL-SMITH:   Yes, but ‑ ‑ ‑

McHUGH J:   But, as I explained to your husband, if they are errors, they are errors within the jurisdiction of the Tribunal.

MRS MAXWELL-SMITH:   But the Tribunal only can do this if the contract does not stipulate.  If the contract stipulates – I mean, how can you put – you have it written down.  I mean, we research in one of the law books that you cannot divide from the contract unless - or you cannot add and vary to it.  I mean, the Tribunal did.

McHUGH J:   As a matter of fact you can, Mrs Maxwell‑Smith.  It is open to parties to vary even written agreements.  They can do it orally but whether the tribunal was right or wrong, the fact is that the remedies open to you - or open to any citizen once an order is made against them is very, very limited.  We have read – Justice Kirby and I have read every piece of paper that you have put before us and I read them again, and again, and again.

MRS MAXWELL-SMITH:   I mean, this case is so unbelievable that it is – do not always give up because, I mean, what are we going to do?  There is a whole lot of courts overrule everything.  Yes, they are coming out with laws – is there any justice?  This is what I would like to know.  We get ordered.  We cannot afford a solicitor and barrister any more.  Then, the opponent, they never said one word.  That was not even the defendant, it was the Tribunal who done the wrong thing here.  They were only the second respondent and they created an expense over $35,000.  They actually - they wasted court’s time in legal fees by opposing our appeal, the judicial review, the leave for appeal, our motion – they requested for a stay of order.  The Sheriff is knocking on our doors already for that – for six times we had to come to the Supreme Court to get a stay until we have been heard here because – there must be justice on this world.

KIRBY J:   This is very upsetting to you, and there must be justice, and there is justice, but in our country it is justice according to the law.

MRS MAXWELL-SMITH:   Yes.

KIRBY J:   We cannot just make it up.  We cannot simply bend the justice or forget the legal principles or ignore the Act of Parliament.  You see, what you, essentially, and your husband want was a right of appeal to a court, to a judge.

MRS MAXWELL-SMITH:   Yes.

KIRBY J:   But, Parliament has not given that in this case, and presumably it has not given it in order to try to discourage people spending a lot of money over a little bit of money.

MRS MAXWELL-SMITH:   No, we did not do this.  We wanted – no, we did not.  I mean, if you get order to pay somebody $7,000 and you have not even - he has not even finished your house and you do know you do not owe him, do you go and pay to him?  So, we approached the departments for three years.  We wrote letters.  We have got a suitcase full.  They

ignored.  They said, “We cannot do anything about it.  The builder is taking you to court”.  They never looked into our case.  We wrote to ministers, to everybody.  Nobody is helping us and we – I know our rights.  I know it.  I know it from my heart and what the Tribunal did that it is unforgivable.  What the builder did and what the solicitors did, yes, I can understand but not a referee who is appointed.  I mean, he knew.  He knew there was damage.  He ignored it.  He totally ignored it.  He has seen it.  We have got video evidence.  I mean, the Tribunal they sent somebody out and they said, “Yes, you do” and even the department – they said, “Look. we have…..you have to fix it.  I know, because you pay to the insurance” but all the things which we have paid already they cannot pay us any more.  We have to fix the builder’s damage which he left behind because I could not otherwise live in the house because it was only half finished.  And the lower courts, they overlooked, the Supreme Court, they overlooked and the Judicial Review, they reckoned you can break a contract of law.  This is not a denial of natural justice.  I do not like to know what a denial of natural justice is in this country.  I do not know.  I really do not know.

McHUGH J:   Thank you very much, Mr and Mrs Maxwell-Smith.

MRS MAXWELL-SMITH:   You have got everything in your application book. I am pretty sure that you have that – everything in it and then you would have seen that we are right because my husband – he made a speech and that is - he even typed it and he could not even say to come everything out clearly.

McHUGH J:   Yes.  Thank you, Mrs Maxwell-Smith.

MRS MAXWELL-SMITH:   I am only asking this appeal.

McHUGH J:   Thank you, Mrs Maxwell-Smith. The Court does not need to hear you, Mr Warren.

Given the limited jurisdiction of the Supreme Court of New South Wales to review orders of the Consumer Claims Tribunal of that State it is plain that an appeal to this Court against the refusal of the Court of Appeal to grant leave to appeal against the judgment of Justice Gregory James would have no reasonable prospect of success.  As to the claim that the applicants have been denied natural justice by the Tribunal, Justice James found that the applicants had failed to prove that claim.  The Court of Appeal reached the same conclusion.  Justice James also found, correctly in our opinion, that the Tribunal had jurisdiction to make the orders which it made.  That conclusion was also upheld by the Court of Appeal. 

Justice James said that the submissions that the Tribunal had disregarded relevant material, had taken into account irrelevant material, had disregarded contract law and had failed to comply with section 31 of the Consumer Claims Tribunal Act 1987 in any substantial or material respect was not borne out by the reasons or the evidence, notwithstanding the assertion in the submissions of the applicants.  We would add that, even if the submissions of the applicants had been made out, the asserted errors on the part of the Tribunal were errors within jurisdiction.  They were not errors that deprived it of its jurisdiction.  In the circumstances, the application must be dismissed with costs.

AT 3.53 PM THE MATTER WAS CONCLUDED