Muir v Icon Water Limited
[2018] ACAT 125
•13 December 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MUIR v ICON WATER LIMITED (Appeal) [2018] ACAT 125
AA 36/2018 (XD 629/2017)
Catchwords: APPEAL — claim for unpaid water supply services and sewerage services — whether Icon Water ‘provided’ a utility service to the appellant for the purposes of section 92 of the Utilities Act 2000 — whether a water network and/or a sewerage network was made ‘available’ for the provision of water connection services and/or sewerage connection services — whether the original Tribunal erred by admitting expert opinion evidence from employees of Icon Water — whether the original Tribunal erred by receiving evidence after the hearing — no error found — appeal dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 79, 82
Law Officers Act 2011 s 11
Unit Titles Act 2011 ss 34, 35
Unit Titles (Management) Act 2011 s 19
Utilities Act 2000 ss 11, 13, 92
Subordinate
Legislation cited: Law Officer (Model Litigant) Guidelines 2010 (No 1)
Law Officers (General) Legal Services Directions 2012
Cases cited:B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219
Hutchinson v Scott [1905] HCA 59
Icon Water Limited v Muir & Anor [2018] ACAT 75
Ikechukwu v Duong [2018] ACAT 97
Isbester v Knox City Council [2015] HCA 20
The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207
Mansour v Dangar [2017] ACAT 49
Minister for Immigration and Citizenship v Li [2013] HCA 18
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Tribunal:Presidential Member G McCarthy
Presidential Member MT Daniel
Date of Orders: 13 December 2018
Date of Reasons for Decision: 13 December 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 36/2018
BETWEEN:
DAVID MUIR
Appellant
AND:
ICON WATER LIMITED
Respondent
TRIBUNAL:Presidential Member G McCarthy
Presidential Member MT Daniel
DATE:13 December 2018
ORDER
The Tribunal orders that:
The appeal is dismissed, and the orders under appeal are confirmed.
………………………………..
Presidential Member G McCarthy
For and on behalf of the Tribunal
REASONS FOR DECISION
The appellant owns four commercial units in Units Plan 328. He appealed from a decision of the original Tribunal made on 27 July 2018 ordering him to pay a sum of $7,695.68 to the respondent for the supply of water and sewerage services for the years ending 30 June 2014 to 2017 inclusive.[1]
[1] Icon Water Limited v Muir &Anor [2018] ACAT 75. The original Tribunal also dismissed the appellant’s counter claim for loss of earnings and witness expenses. This part of the decision was not challenged on appeal
In this decision ‘Tribunal’ means the original Tribunal appealed from and ‘Appeal Tribunal’ means this Tribunal.
Procedural background
On 24 September 2018, at a directions hearing at which both parties were legally represented, directions were made for the filing of documents for the hearing of the appeal.
The respondent did not file any submissions or other documents. On 19 November 2018, the solicitor for the respondent sent an email to the Tribunal registry advising “Icon Water will not be appearing at the hearing on 30 November 2018. Please proceed with the hearing of the appeal in the absence of Icon Water Limited … We look forward to receiving the Tribunal’s decision following the hearing on 30 November 2018 and the reasons for the Tribunal’s decision.”
The Appeal Tribunal heard the appeal on 30 November 2018. Mr Buckland of counsel appeared on behalf of Mr Muir, who was also present. There was no appearance on behalf of the respondent.
The absence of a representative for the respondent at the hearing of the appeal and its election not to comply with the Tribunal’s orders regarding filing of submissions was surprising and disappointing. It is not conduct one would expect of a model litigant.[2]
[2] Law Officers Act 2011 section 11; Law Officers (General) Legal Services Directions 2012; Law Officer (Model Litigant) Guidelines 2010 (No 1)
The appellant sought leave to rely on seven grounds of appeal, described in Mr Buckland’s outline of submissions dated 9 November 2018 as the appellant’s “List of Errors”. These alleged errors were pursued in substitution for the grounds of appeal listed in the application for appeal. In the absence of the respondent, the Appeal Tribunal granted leave. The List of Errors read as follows:
(a)The Learned Member erred in concluding that a water and/or sewerage service was provided by the Respondent to the Appellant for the purposes of section 92(1)(b)(ii) of the Utilities Act 2000 at [83] (Ground 1).
(b)The Learned Member erred in concluding that there was an enforceable contract between the Appellant and the Respondent pursuant to section 92(2) of the Utilities Act 2000 at [83] and [147] (Ground 2).
(c)The Learned Member erred in concluding that, as a result of the water and/or sewerage networks being available to the body corporate for Units Plan 328, that those services were available to the Appellant (at [138] – [139]) (Ground 3).
(d)The Learned Member erred in concluding that the water and/or sewerage networks were available to the Appellant such that the Respondent was entitled to charge the Appellant an access charge pursuant to clause 6.3 of the standard consumer contract (at [145] – [146]) (Ground 4).
(e)The Learned Member erred in admitting and relying upon the expert evidence of Ian McDonell and Sam Sasche in circumstances where:
(i) Both expert reports were provided after the final hearing;
(ii) The Appellant was not afforded the opportunity to cross‑examine either expert; and
(iii) Both experts were employees of the Respondent and as such were not independent as required by the Expert Witness Code of Conduct (Ground 5).
(f)The Learned Member erred in preferring the evidence of Mr McDonell over the evidence of the Appellant’s expert Mr Stodulka in circumstances where Mr McDonell was not sufficiently independent for the Tribunal to be able to accord his evidence any weight (Ground 6).
(g)The Learned Member’s decision to admit the expert evidence of Mr McDonell and Mr Sasche in the circumstances was a breach of the rules of natural justice and/or legally unreasonable (Ground 7).
The appeal proceeded as a review of the original decision. There was no application to admit additional evidence. Mr Buckland spoke to his written submissions, and answered questions posed by the Appeal Tribunal. At the end of the hearing, the Appeal Tribunal reserved its decision.
The original hearing and decision
In its reasons for decision, the Tribunal described the appellant’s units as follows:
The units
37. The respondent emphasised during the hearing that the units were located in an older building in Fyshwick and did not have an active water and sewerage connection. He relied on the report from his expert witness, Andy Stodulka. Mr Stodulka asserted that the units were designed in such a way that it was never contemplated that the units would ever be connected to the water and sewerage network.
38. The units are located in Fyshwick Plaza, Wollongong Street Fyshwick and are part of UP 328, which comprises 40 units. The applicant’s units are located on the first floor of a free standing hexadecagon two storey brick building located towards the front of the block on Wollongong Street. There are eight units, including the respondent’s four units, on the first floor which are situated around a central service core comprising the common area and the wet area (common property). There are seven units on the ground floor of this building and 25 units located in the single level buildings along three sides of the property.
39. Mr Stodulka described the architectural features of the building in which the units are located in his second report dated 16 April 2018 as:
… the overhanging mushroom form, the ground floor units being immediately under the subject premises, the ceiling of the ground floor is the concrete slab of the first floor – there is no suspended ceiling space…
and
the building design is unique in that a considerable portion of the first floor overhangs the ground floor premises and forms over cover walking and parking area.
40. It is not in dispute that the Water and Sewerage Network is available to the common property in UP 328. UP 328 is connected to and uses the Water and Sewerage Network. The occupants of the applicant’s units and their visitors use the facilities in the common property.
41. What is in dispute is whether the applicant’s Water and Sewerage Network is available to the units. (footnotes omitted)
The Tribunal outlined the submissions of each party, and then identified the issues in the matter:
Issues
70. The following issues have arisen:
(a)Has the applicant made available to the respondent’s units Water Supply Services, Water Consumption and Sewerage Services as defined in the Utilities Act 2000?
(b)Is it unfair that the respondent be required to contribute to the costs and charges of the applicant’s Water and Sewerage Network where the units’ use is limited?
71. If the Tribunal finds that the respondent is liable for the payment of the charges, the respondent asks the Tribunal to determine if the Owners Corporation should provide the connections to the water and sewerage. The Tribunal will consider this as Issue (c).
The Tribunal then considered the evidence and arguments of each party, before arriving at its conclusion as follows:
Conclusion – Issue (a) and Issue (b)
139. Having considered all of the evidence, the documents and the submissions and for the above reasons the Tribunal adopts the applicant’s submissions and is satisfied and finds:
(a)the applicant provides water and sewerage services in accordance with the provisions in the Utilities Act to the respondent’s units by making a network available for the provision of water and sewerage connection services to the respondent’s units and the UP 328;
(b)the applicant has provided active connection points in close proximity to the boundary to UP 328 as shown in the Water and Sewerage Network Plans being Annexures B and C and in the photographs being Annexures D, E, F and G to the witness statement of Mr McDonell. The applicant has complied with Rules S2 and W2 of the ACTEW Corporation Water and Sewerage service and Installation Rules;
(c)UP 328 has accessed the applicant’s connections and in doing so demonstrated that the applicant has made a water and sewerage network available for connection to the property where the respondent’s units are located.
(d)It is not a defence to the applicant’s claim to say that the respondent is not liable for the payment of the fees and charges claimed as his units are not connected to the network. Any impediment to connection is a matter between the respondent as the owner of the units and the units plan. It is the obligation of the respondent and UP 328 to install and maintain connections between the respondent’s units and the relevant connection points provided by the applicant;
(e)the applicant is not responsible for connections within the common property beyond the relevant connection points on UP 328; the connection points must terminate at the boundary as applicant cannot build on the respondent’s property, or the property of anyone else;
(f) the design of the building in which the respondent’s units are located is not unique in so far as it contains units with no connection to the water and sewerage network. This is a design commonly featured in commercial premises where utilities and kitchen facilities located on common property are shared by multiple units;
(g)the intention of the Utilities Act and the ICRC is that all property owners that have access to the water and sewerage network should contribute to the cost of the network;
(h)should the ICRC have intended that commercial units, such as the units owned by the respondent, would not be liable to pay the fixed water and sewerage supply charges, this would have been explicitly stated in the SCC and Schedule of Fees;
(i)as a property owner, the respondent should contribute towards the cost of essential infrastructure along with other property owners in accordance with the fees and charges approved by the ICRC and contained in the SCC;
(j)the pricing set by the ICRC is based on calculations that take into consideration the number of properties serviced by the applicant’s water and sewerage network so that charges can be fairly apportioned across all property owners. The applicant’s overall pricing is largely based on a cost recovery basis consistent with ‘National Water Initiative Pricing Principle 1: Cost Recovery’;
(k)it is fair that the respondent, as the owner of property in the Australian Capital Territory, be required to contribute to the costs and charges of the applicant’s Water and Sewerage Network as determined by the ICRC and included in the SCC. (footnotes omitted)
At [148]-[151], the Tribunal found that the respondent (Icon Water) was not responsible for connections beyond the relevant connection points for Units Plan 328, and that these connections were a matter to be dealt with between the appellant and other relevant unit holders.
The Tribunal found that the quantum sought in the respondent’s application, which was not disputed, was made out.
Principles applying to appeals
Section 82 of the ACT Civil and Administrative Tribunal Act 2008 provides that the Appeal Tribunal may hear the appeal as a new application or as a review.[3] In this case, the appeal was dealt with as a review. In an appeal conducted by way of review, an appellant must satisfy the Appeal Tribunal that the original decision-maker erred in fact or law,[4] and that the error was material to the outcome.[5]
[3] The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207 [14]; B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219 [11]‑[12]
[4] ACT Civil and Administrative Tribunal Act 2008 section 79
[5] Mansour v Dangar [2017] ACAT 49 at [18]-[19]
When conducting a review, the Appeal Tribunal must proceed by reference to the original decision. In Mansour v Dangar, the tribunal said:
[F]or a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal’s findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal’s primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal should not interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion. (footnotes omitted)[6]
[6] Mansour v Dangar [2017] ACAT 49 at [22]
In his submissions, Mr Buckland dealt with the appellant’s case in two parts, first in the context of his claims regarding the proper construction of section 92 of the Utilities Act 2000 (Utilities Act) and whether the water and sewerage networks were ‘available’ for the purposes of sections 11 and 13 of the Utilities Act and standard customer contracts (Grounds 1 - 4), and secondly regarding procedural fairness (Grounds 5 - 7). We have done likewise.
Grounds 1 - 4: ‘provided’ and ‘available’
Section 92 of the Utilities Act states:
92 Creation of standard customer contracts
(1)The terms on which a utility may provide a utility service to a person are —
(a) to the extent that the service is provided under a negotiated customer contract — the terms of the contract; or
(b) in any other case — the terms of the standard customer contract for the provision of the service by the utility that apply —
(i)when the person applies to the utility for the service on those terms; or
(ii)when the service is provided by the utility to the person in the absence of an application by the person.
(2)Where subsection (1) (b) applies, the terms of the standard customer contract constitute an enforceable contract between the utility and the person for the provision of the service.
(3)A standard customer contract —
(a) has no effect in relation to anything occurring before it comes into operation; and
(b) is subject to any variation under section 93; and
(c) is unenforceable by the relevant utility to the extent (if any) to which it does not comply with the requirements set out in section 89 (2) (a) and (b).
Under sections 11 and 13 of the Utilities Act, a ‘utility service’ includes “making a water network available for the provision of water connection services” and “making a sewerage network available for the provision of sewerage connection services”, respectively.
With reference to section 92(1)(b)(ii), Mr Buckland submitted that the Tribunal was wrong to conclude that there was a contract between the appellant and the respondent under section 92(2) because a utility service was not ‘provided’. He acknowledged that the water and sewerage networks were provided to the common property, but argued that the appellant could not access the network except by trespassing over the common property. He relied on section 19 of the Unit Titles (Management) Act 2011, pursuant to which the owners corporation is the legal owner of the common property. In this sense, he said, the network was not ‘available’ to the appellant because access to the network would require him to trespass across the common property owned by another entity, namely the owners corporation. He relied on the High Court’s decision in Hutchinson v Scott[7] in which the Court upheld the proposition that a contract to do a thing which cannot be performed without a violation of the law is void, whether the parties knew the law or not.
[7] Hutchinson v Scott [1905] HCA 59
In our view, the appellant’s ‘trespass’ submission fails because the appellant could access the network without trespassing on the property of anyone. In its decision, the Tribunal referred to sections 34 and 35 of the Unit Titles Act 2011 (Unit Titles Act) which create easements for the provision of utility services. The Tribunal was satisfied that easements were available, and could be used to provide the water and sewerage connection services from the networks to the appellant’s units.
Mr Buckland submitted that the Tribunal was incorrect to conclude that there was an easement because, he said, the easements only exist if they are ‘necessary for the reasonable use and enjoyment’[8] of the appellant’s units. He relied on the evidence of the appellant and Mr Stodulka that the appellant’s units were commercial, had not been designed with individual water or sewerage services in mind, and that such services were not contemplated by the appellant as being reasonably necessary for his use or enjoyment of the units because he used the water and sewerage facilities provided to the common property. It was submitted that the Tribunal could not have been certain that the owners corporation would agree to allow access across the common property from the appellant’s units to the connection points for the water or sewerage networks because it might impact adversely on other owners or on the common property.
[8] Unit Titles Act 2011, section 35(1)
The Appeal Tribunal was not persuaded by these arguments. The word used in section 92 is ‘provided’. That word is not defined in the legislation, and so should take its ordinary English meaning. The word ‘provide’ means:
To give or supply … make suitable preparation for something[9]
1. To furnish or supply. 2. to afford or yield. 3. Law to arrange for or stipulate beforehand. 4. Obsolete to get ready, prepare or procure beforehand.[10]
[9] Pollard, E an Liebeck, H (eds), The Oxford Paperback Dictionary (Oxford University Press, 4th edn, 1994)
[10] Macquarie Dictionary (Pan McMillan, 7th edn, 2017)
The word ‘provide’ can be interpreted from the point of view of the person receiving what is supplied, as the appellant submitted. In that sense, the appellant said that notwithstanding the network running close to his property, it is not directly adjacent to his unit and he gets nothing from it. Further, until water and sewerage services are reasonably necessary for his enjoyment of his units, the statutory easements do not exist for him to be able to lawfully access the networks.
The word ‘provide’ can also be interpreted from the point of view of the supplier, as the respondent submitted to the Tribunal below. In that sense, the provision of the networks themselves, close enough for lawful connection (as has occurred for the common property and other units), is all that is required for the utility service to be ‘provided’. Suitable preparation has been made. This interpretation is consistent with the definitions of a ‘utility service’ concerning a water network and a sewerage network in sections 11 and 13 of the Utilities Act, respectively, which define utility service to include making the network available “for the provision of” water or sewerage connection services, respectively.
By reference to sections 11 and 13 of the Utilities Act, the interpretation of ‘provided’ in section 92 must be construed as ‘available’ for the provision of the connection services, irrespective of whether the connection services are installed or used by the customer.
This leads to the question of the easements provided under the Unit Titles Act. Whether an easement is necessary for the reasonable use and enjoyment of the unit must be determined objectively. Whether an individual unit owner considers that the essential service is necessary (or not) for his or her use or enjoyment of the unit is not determinative of the issue. To pose the question in reverse exposes the flaw in the appellant’s argument. If a unit holder has requested connection services to access the water and/or sewerage network, especially where connection services are available to the common property and to other units in the units plan, it would be a nonsense for the owners corporation or other unit holders to contend that the unit holder should not also have access to such basic utility services for the unit holder’s reasonable use and enjoyment of his or her property.
The appellant also submitted that the networks are not ‘available’ to him, relying on the expert evidence of Mr Stodulka that it would be extremely expensive to plumb the appellant’s units and to install connection services necessary to access the relevant networks. Significant expense was acknowledged by the respondent’s witnesses. The Tribunal does not consider that expense in accessing a network is relevant to the question of its availability, which is a question of fact. The question is whether it is factually and legally possible to access a network, regardless of the cost. Were it otherwise, endless debate would occur with lease and/or unit holders depending on their subjective views about whether the cost of connection services is reasonable, which would invariably introduce questions about each person’s capacity to pay.
Factually, we are satisfied that the water and sewerage networks are physically proximate to the appellant’s units, there being existing connections into Units Plan 328, and that the appellant is entitled to access those networks. As such, he holds statutory easements over the common property as are necessary for connections from his units to the networks to be installed.
For these reasons, the Appeal Tribunal agrees with the conclusion of the Tribunal that the water and sewerage networks are ‘provided’ to the appellant such that the standard customer contracts are in place for each utility service under section 92(2). As the services are ‘available’, it follows that the respondent was entitled to charge the appellant access charges pursuant to the standard consumer contracts.
For these reasons, Grounds 1, 2, 3 and 4 are not made out.
Grounds 5 - 7: expert evidence and procedural fairness
Referring to Ground 5(i) and (ii) and Ground 7, after considering the manner in which the Tribunal proceeded, we were not persuaded that there was any denial of procedural fairness by it receiving the further evidence of Mr McDonell and Mr Sasche after the final hearing and without cross-examination. Why this occurred needs to be put in context. Procedural fairness is not an abstract issue; rather, attention needs to be focused on whether the conduct which is said to be procedurally unfair produced some practical injustice. In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam, the High Court, per Gleeson CJ, said:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[11]
[11] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 [14]
At the original hearing, the appellant relied upon a report from Mr Andrea Stodulka who opined that the water supply and sewerage services are not available to the appellant’s four units. Towards the end of the hearing, the original Tribunal pointed out to the appellant that limited weight could be given to Mr Stodulka’s report because he was not available to be cross-examined. Discussion then ensued, canvassing deficiencies in the content of the first report, and the need for a second report. It was not certain whether Mr Stodulka would later need to be asked questions, but the respondent made clear that if the Tribunal were to receive a further report from Mr Stodulka it wanted the opportunity to file expert evidence in reply.
The Tribunal accordingly made orders for the appellant to file a second report from Mr Stodulka, and the respondent to file any expert report in reply. Final written submissions were to be lodged by 27 April 2018. The Tribunal gave the parties liberty to apply, and otherwise reserved its decision.[12]
[12] [2018] ACAT 75 at [25]
The appellant filed a second report from Mr Stodulka, but did not file further written submissions. The respondent filed two expert reports, and no further written submissions.
Notwithstanding these procedural orders designed to minimise delay and expense, Mr Buckland submitted that the appellant was denied procedural fairness because the appellant was denied the opportunity to cross-examine the respondent’s witnesses upon their statements, or to make further submissions as a consequence of that cross-examination.
Mr Buckland submitted that the conduct of the hearing in this matter was “unreasonable”, with reliance on the High Court’s decision in Minister for Immigration and Citizenship v Li.[13] In our view, that decision is not relevant to this case. It concerned an application for an adjournment, and a decision of a member of the Migration Review Tribunal not to grant it. In this case, there was no application regarding the further conduct of the matter and no opposition by anyone to the course of action proposed and ordered by the Tribunal.
[13] [2013] HCA 18
Mr Buckland submitted that the appellant, as a self-represented litigant, was not given an explanation about the usual way a hearing is conducted, with evidence before submissions, or that he would usually have a right to cross‑examine the witnesses called by the other party.
In Ikechukwu v Duong [2018] ACAT 97 the Tribunal’s responsibility to self‑represented litigants was summarised as follows:
51. A court or tribunal’s duty to a self represented litigant is bound up with the obligation to act in a procedurally fair manner, and in practice “raises issues of considerable complexity” (Mortimer J in [MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392]). In Maher v Carpenter Justice Refshauge quoted from the decision of Kenny v Ritter where the relevant principles were summarised as follows:
In our view, the following principles emerge from the authorities discussed.
— A litigant has a fundamental right to appear in person. When faced with a litigant in person, the court is under a duty to give such assistance to that litigant as may be required to ensure that there is a fair trial.
The purpose of the assistance is to ensure that as far as possible, the disadvantage that litigants may suffer as a result of lack of representation is adequately addressed.
— Although the duties of the court in relation to self represented litigants are discussed by numerous authorities, it is difficult to ascertain a common approach as to the manner and form in which assistance is provided which can be applied in practice to all circumstances. This is unsurprising bearing in mind the myriad of circumstances in which litigants may appear in person. However, the authorities do provide general guidance as to principles which can be applied by the courts.
— Judicial assistance would include ensuring that unrepresented litigants are aware of their substantive and procedural rights, which in turn would depend upon the nature and circumstance of the case.
— The degree and form of the judicial assistance required depends upon several factors, including the overall knowledge and skills of the litigant and the particular circumstances of the case.
— Judicial assistance is to be limited to that which is necessary to diminish so far as possible the disadvantage that the unrepresented litigant will suffer when another party or parties are represented by a lawyer. It is a matter of redressing imbalance so far as possible but at the same time ensuring that the party who is represented is not thereby disadvantaged and thereby obtains less entitlements.
— In order to provide assistance to redress any imbalance or disadvantage which may arise by reason of lack of legal representation, the court should first assess the degree to which an unrepresented person may require assistance. This is not to be an automatic assumption.
— It is not part of the role of a judge to become an advocate for the unrepresented person; or stand in the shoes of counsel acting for that litigant; or unduly interfere with the conduct of the trial on the litigant’s behalf. Instead, the court has the difficult task of striving to achieve a balance between these seemingly conflicting duties to ensure that there is a fair trial.
— The court at all times is under an obligation to maintain the appearance of impartiality and neutrality and not be seen to apply preferential rules to the self represented litigant to the disadvantage of the represented litigant. (footnotes omitted)
The Appeal Tribunal does not consider that the procedure adopted by the Tribunal in this case denied procedural fairness to the appellant. In making the directions it did, the original Tribunal was clearly balancing the need to allow the appellant to put his witness’s report into proper form and the respondent to call evidence in reply, against the time and cost to the parties by resuming the hearing which could be avoided if cross-examination was not required. The possibility that further hearing might become appropriate or necessary was addressed by the Tribunal giving the parties liberty to apply.
At no point did the appellant apply to the Tribunal for the opportunity to cross‑examine any of the respondent’s witnesses, or to resume the hearing for any other reason. We are not persuaded that Mr Muir might not have understood that he could do so, or the meaning of the order that the parties had liberty to apply. The precipitating factors for the procedure adopted were the need for Mr Muir’s witness to be available for cross-examination and the opportunity for the respondent to call evidence in reply, the ramifications of which were discussed with Mr Muir during the hearing.[14] Further, at the appeal hearing, Mr Muir referred us to an email dated 4 June 2018 from the Tribunal’s registry officer to the solicitor for the respondent, copied to Mr Muir, in which the officer noted that the Tribunal had given liberty “to either party to apply on 5 days notice” and therefore “if you would like the matter to be relisted you may apply”. It is apparent from the email that the appellant was equally able to apply for the matter to be re-listed. He never did so.
[14] Transcript of proceedings, 5 February 2018, pages 106, 110, 111, 115 and 116
We reject the proposition that a party, and in this case the appellant, can actively participate in the design of a procedure for the conduct of a matter intended to minimise cost and delay and then, after the event, contend that the procedure was a breach of procedural fairness.
Referring to Ground 5(iii) and Ground 6, the appellant submitted that the Tribunal was wrong to have preferred the evidence of Mr McDonell and Mr Sasche (both employees of the respondent) over that of the appellant’s witness, Mr Stodulka. It was submitted that their evidence should not have been admitted as ‘expert evidence’ because, as employees, they could not be said to be independent. Mr Buckland relied upon the High Court’s decision in Isbester v Knox City Council[15] in which the Court reviewed and confirmed relevant principles concerning apprehended bias on the part of a decision-maker, in particular that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide”[16].
[15] Isbester v Knox City Council [2015] HCA 20
[16] Ibid quoting Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [344]
Mr Buckland submitted that, by reference, the same principle should apply to the respondent’s expert witnesses in the sense that a fair-minded lay observer might apprehend that they would not bring an impartial mind to the questions about which they were asked to give an opinion because their opinions concerned the interests of their employer.
We were not persuaded that the High Court’s reasoning in Isbester or in any other case concerning partiality of a decision-maker should be applied for the purpose of determining admissibility in a proceeding of expert evidence, nor did Mr Buckland refer the Appeal Tribunal to any decision to that effect. Nor did he refer to any aspect of the evidence of Mr McDonell of Mr Sasche which reflected a lack of independence. As Mr Buckland noted, each witness had agreed to be bound by the tribunal’s Expert Witness Code of Conduct. Issues might arise in some cases about the weight that should be given to an expert opinion, when given by an employee of a party, but we were not persuaded that the tribunal cannot or should not admit expert opinion evidence given by an experienced or qualified person simply because they are an employee of a party. In many matters, for example in tax, valuation and planning matters, the tribunal routinely receives expert evidence from an employee of a party.
In any event, there was no objection to the Tribunal receiving the evidence of Mr McDonell and Mr Sasche on the grounds that they were employees of the respondent. We were not persuaded that the Tribunal erred in admitting their evidence where there was no objection to it.
For these reasons, Grounds 5 - 7 are not made out.
Conclusion
The appellant has failed to satisfy the Appeal Tribunal that the Tribunal erred in its conclusions regarding provision or availability of water and sewerage networks or connection services, its conduct of the hearing or its treatment of the evidence of the witnesses. It follows that the appeal must be dismissed.
………………………………..
Presidential Member G McCarthy
For and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | AA 36/2018 |
PARTIES, APPELLANT: | David Muir |
PARTIES, RESPONDENT: | Icon Water Limited |
COUNSEL APPEARING, APPELLANT | Mr B Buckland |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPELLANT | United Legal Pty Ltd |
SOLICITORS FOR RESPONDENT | NV Lawyers |
TRIBUNAL MEMBERS: | Presidential Member G McCarthy Presidential Member MT Daniel |
DATE OF HEARING: | 30 November 2018 |
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