Park v Minister for Fair Trading & Ors

NEW SOUTH WALES COURT OF APPEAL

CITATION: PARK v. MINISTER FOR FAIR TRADING & ORS. [2000] NSWCA 96

FILE NUMBER(S):
40144/99

HEARING DATE(S): 13 April 2000

JUDGMENT DATE: 05/05/2000

PARTIES:
Jonathan Park (Claimant)
Minister for Fair Trading (First Opponent)
Consumer Claims Tribunal (Second Opponent)
Kristina Morawetz (Third Opponent)
Ina Van Der Merwe (Fourth Opponent)

JUDGMENT OF: Mason P Powell JA Beazley JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): CLD 30122/97

LOWER COURT JUDICIAL OFFICER: Dowd J

COUNSEL:
Claimant in person
Mrs. M.A. Gilmour (First Opponent)
(Second, Third and Fourth Opponents submitting)

SOLICITORS:
Claimant in person
I.V. Knight, State Crown Solicitor (First and Second Opponents)
Tress Cocks & Maddox (Third and Fourth Opponents)

CATCHWORDS:
APPEAL AND NEW TRIAL - Appeal from Common Law Division following application for review Consumer Claims Tribunal - Whether leave to appeal required.
INFERIOR COURTS AND TRIBUNALS - Consumer Claims Tribunal - Appeal from - To Supreme Court - Grounds for - Party to claim denied natural justice - Whether established D

LEGISLATION CITED:

DECISION:
Appeal dismissed as incompetent; Leave to appeal refused.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40144/99
CLD 30122/97
MASON P.
POWELL JA
BEAZLEY JA
6 May 2000

PARK v. MINISTER FOR FAIR TRADING & ORS.
JUDGMENT

MASON P: I agree with Powell JA.
POWELL JA: The Court has heard submissions by the Claimant in support of a Summons for Leave to Appeal from a Judgment delivered by Dowd J in the Common Law Division on 11 February 1999, pursuant to which Judgment his Honour dismissed with costs in favour of the First Opponent (“the Minister”) an application which had been made by the Claimant seeking to have reviewed an order which had been made by a referee constituting a consumer claims tribunal dismissing a consumer claim which had been made by the Claimant pursuant to the provisions of the Consumer Claims Tribunals Act 1987 (“the Consumer Claims Act”). In addition, the Court has heard submissions by the Claimant in support of a Notice of Motion pursuant to which he seeks an order that the Minister be removed from the proceedings pursuant to the provisions of SCR Part 8 r.9. It should be noted, however, that, notwithstanding his having filed the Summons for Leave - apparently pursuant to a direction given by Mr. Deputy Registrar Studdert on 9 August 1999 - the Claimant maintains that he is entitled to appeal to this Court as of right.
In order that one may more readily understand the circumstances which have given rise to the applications with which the Court is concerned to deal, it is necessary that one provide a somewhat more extended statement of facts than would otherwise be the case.
The Claimant is a young man, now 29 years of age, who appears to have been born in Korea and, with his family, immigrated to this country in January 1988.
When still a young boy and living in Korea, the Claimant developed a nephrotic syndrome which, although treated by medication, ultimately progressed to the stage where, in December 1992, he underwent a renal transplant at the Royal North Shore Hospital (“RNSH”). Since that time, so it would seem, the Claimant has been obliged to continue on a programme of medication designed to control his condition.
In March 1996 - the relevance of which date will shortly appear - the Claimant was referred by his treating renal physician, Dr. Mahoney of the Renal Unit at RNSH, to the RNSH Dental Clinic for treatment for an impacted wisdom tooth. After a course of treatment apparently prescribed by Dr. Mahoney, the impacted wisdom tooth appears to have been removed surgically in April 1996 (see Annexure “O” to Claimant’s Submissions).
On 8 October 1996, the Claimant attended at the dental surgery conducted by the Fourth Opponent (“Dr. Van Der Merwe”) at 197 Condamine Street, Balgowlah for treatment to two teeth which required restoration. On that occasion, the Claimant was seen by the Third Opponent (“Dr. Morawetz”) whom he had seen on two occasions in the preceding four weeks. On 8 October 1996, Dr. Morawetz, having carried out the appropriate preparatory treatment, inserted Vitrebond amalgam fillings in the two teeth in question. The Claimant asserts that, while Dr. Morawetz was carrying out this treatment, she negligently chipped his lower left first incisor. The materials which are before the Court would indicate that, on varying occasions, the Claimant has given varying versions of what Dr. Morawetz is said to have done on this occasion.
On 10 October 1996, the Claimant attended upon another dental surgeon, Dr. Stoermer, at the surgery in Neutral Bay where she carried on practice, complaining of his treatment by Dr. Morawetz. In a report (Annexure “K” to Claimant’s Submissions) which she was to provide in July 1997, Dr. Stoermer recorded:
“Examination revealed that the lower left first incisor was chipped. The chip was approximately 4mm cube in size. I made Jonathan aware that I could not speculate as to when, where and why this had occurred. It was recommended that he should organise an appointment with the practice at Condmine Street (sic). I rang Dr. Kristina Morawetz after Jonathan's consultation on 10 October 1996 in order to make her aware of this."
Other material which is before the Court (Annexure "I2" to Claimant's Submissions; cf Annexure "B" to Claimant's Submissions) suggests that that telephone call occurred on 16 October 1996.
Meantime, on 11 October 1996, the Claimant returned to Dr. Van Der Merwe's surgery where he saw Dr. Van Der Merwe. In a Statutory Declaration which she was later to tender on the hearing before the referee (Annexure "I1" to Opponent's Submissions), Dr. Van Der Merwe deposed:
"6.Mr. Park next consulted me on 11 October 1996. Mr. Park said to me words to the following effect:
'Dr. Morawetz dropped the fast drill handpiece on one of my lower front teeth and chipped it. It is now also very sensitive to cold.'
Mr. Park was referring to tooth 31. Upon examination of tooth 31 I could not see any fractures. In his mouth I noticed there was incisal wear generally which was the worst on tooth 31. I also noticed that Mr. Park had a porcelain crown on the opposing tooth 21 and I related the wear on tooth 31 to the hardness of the porcelain crown. I related this information to Mr. Park and he became very aggressive. We then had an argument about whether Dr. Morawetz dropped the drill on his lower front teeth. I said to Mr. Park words to the following effect:
'I was not present when you saw Dr. Morawetz.'
I took study models of Mr. Park's teeth before tooth 31 was restored. I then restored tooth 31 for Mr. Park and I did not charge him. …"
(see also Dr. Van Der Merwe's Patient Record, Annexure "P" to Opponent's Submissions.)
The Claimant asserts (Annexure "G4" to Claimant's Submissions) that he attended on Dr. Morawetz on 22 October 1996, seemingly to complain that one of the fillings which she had inserted on 8 October 1996 had already broken down but, on this occasion, obtained no satisfaction.
Thereafter - seemingly on 23 October 1996 - the Claimant forwarded to the Dental Board a complaint taking the form of a Statutory Declaration (Annexure "G4" to Claimant's Submissions). In that Statutory Declaration, the Claimant asserted that (inter alia):
"Dr. Kristina Morawetz is an employee of Dr. Ina van der Merwe. Dr. Morawetz performed two fillings on 08 10 96 … She mishandled the slow speed hand piece and broke some of my bottom front teeth and created a big chip and a small chip … I suffered from a more sensitive pain where the big chip was until her employer Dr. Van Der Merwe performed comp resin rest, 1sfc Ant Tooth on 11/10/96 free of charge. I suffered from sensitivity where the small chip was for more than ten days after she hit my teeth. I want Dental Board to discipline Dr. K. Morawetz justly for the pain she caused. …"
The Claimant appears to have consulted another dental surgeon, Dr. Erskine-Smith, at the surgery where he carries on practice at Neutral Bay, on 3 March 1997. In the report (Annexure "N" to Claimant's Submissions) which he was to provide on 11 June 1997, Dr. Erskine-Smith wrote (inter alia):
"This is to confirm details of treatment provided by me. On 3/3/97 Mr. Park attended my surgery. He told me he had a drill dropped on his lower left incisor, but on further discussion he told me it was 'mishandled' and that the drill went out of control and had drilled his tooth.
On 3/3/97 (later that day) I replaced the existing filling on the lower left first incisor. The size of the restored portion of the tooth was greater than that which one would normally expect if the chip on the edge of the tooth was caused by natural grinding. Usually normal grinding results in fragmentation of the enamel in the vicinity of 1-2 square millimetres but this was more like 4 square millimetres. This is not to say it is impossible this chip had happened naturally, just that it is unlikely (80% unlikely in my estimation). It could also have been caused by other factors I am unaware of e.g. trauma, biting a hard object accidentally etc. etc, but the chip size seemed consistent with the history I was given of something being 'dropped'."
Although the materials which are before the Court do not make it clear when he did so, it would seem (see Annexure "H1" to Claimant's Submissions) that it was in early May 1997 when the Claimant lodged with the Consumer Claims Tribunal ("the Tribunal") a consumer claim seeking to recover from either Dr. Morawetz or Dr. Van Der Merwe compensation. The materials which are before the Court do not include the complete form of consumer claim. However, in the "Details of Claim" (Annexure "B1" to Opponent's Submissions) which appears to be part of the form of claim, the following appears:
"On 8/10/96, Dr. K. Morawetz mishandled 'slow speed hand piece' and broke my tooth. I suffered from sharp pain on the tooth until her employer, dentist Ina Van Der Merwe did resin job on the tooth free of charge. The resin last only 5 months. I spent $270 for another dental resin service on 3/3/97. Dr. Morawetz claimed that she did not remember that she mishandled the equipment whereas her employer, Dr. Ina believed my words. On 10/10/96 independent dentist Dr. Elisa Stoermer rang Dr. Morawetz to inform her that she saw a big chip on the tooth."
Before proceeding with the narrative, it is convenient to pause for the purpose of recording, but shortly, some of the relevant provisions of the Consumer Claims Act. They are as follows:
"5. (1) A tribunal is constituted by a referee sitting alone.
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10. (1) Subject to this Act, a tribunal has jurisdiction to hear and determine any consumer claim referred to it in accordance with this Act.
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12. (1) Except as provided by sub-s.(2), a court of record has no jurisdiction to grant relief or a remedy by way of -
(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.
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.
(2) A court is not precluded from granting relief for a remedy of the kind referred to in sub-s.(1) if, in respect of a consumer claim -
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(b)a tribunal has made an order under s.30 and the ground on which the relief or remedy is sought is that
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(ii)in relation to the hearing or determination of the claim, a party to the claim has been denied natural justice.
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17. (1) Except as expressly provided by this Act or the regulations, a tribunal has control of and responsibility for its own procedures, but in exercising its functions under this Act must conform to the rules of natural justice.
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21. (1) Subject to this section, a party to a consumer claim has the carriage of the party's own case.
(2) A party to a consumer claim ('the party') is not entitled to be represented at the hearing of the claim …
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22. (1) Except as provided by sub-s.(2) a tribunal must hear a consumer claim in private.
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23. (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.
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28. A tribunal has no power to award costs to or against a party to a consumer claim.
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30. (1) In determining a consumer claim wholly or partly in favour of a claimant, a tribunal may, subject to ss. 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;
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31. (1) When making an order or orders under s.30, a tribunal must make such orders as, in its opinion, will be fair and equitable to all the parties to the claim.
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32. (1) A Tribunal has no jurisdiction to make in respect of a particular consumer claim, an order or orders in favour of the claimant or, where there are 2 or more claimants, in favour of those complainants if the total of -
(a)the amount or amounts (if any) of money to be paid;
………
under or by virtue of the order or orders would exceed the prescribed amount.
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34. (1) Subject to section 36, an order of a tribunal is final and binding on all parties to a consumer claim that is heard and determined by the tribunal.
(2) No appeal lies in respect of an order of a tribunal.
(3) Subsection.(2) does not affect the operation of section 12.
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44. (1) If any proceeding, order or ruling of a tribunal is challenged, reviewed or called into question in proceedings before a court, the Minister is entitled to intervene at any stage of the proceedings before the court, by counsel, solicitor or agent.
(2) If the Minister exercises the right conferred by subsection (1) to intervene in proceedings before a court, the Minister thereupon becomes a party to, and has all the rights of a party to, those proceedings, including the right to appeal against any order or judgment of the court."
It is agreed that at the time of the lodgment by the Claimant of his consumer claim, and at the hearing of that consumer claim, the "prescribed amount" referred to in s.32(1) of the Consumer Claims Act was $25,000.00
The Claimant's consumer claim was heard by Mr. Referee Kelly, there being three hearings, the first on 19 June 1997, the second on 23 July 1997 and the third on 10 October 1997. The referee gave his decision on 12 October 1997 (Annexure "B" to Affidavit M.J. Tregurtha, 2 July 1999) although notice of the order made by the referee and a copy of "brief reasons" required by s.34A of the Consumer Claims Act do not appear to have been forwarded to the Claimant until 31 October 1997 (Annexure "A" to Affidavit M.J. Tregurtha, 2 July 1999).
At the hearing on 19 June 1997, the Claimant made an oral statement, as did Dr. Morawetz. The Claimant asserts that, at that hearing, Dr. Morawetz asked for a copy of a receipt from Dr. Erskine-Smith which had apparently been produced by the Claimant, to which request the referee declined to accede. The Claimant asserts that that refusal indicated to him that parties to a consumer claim were not allowed copies of the evidence tendered by the opposing party, an assertion which is difficult to reconcile with actions which he later claimed to have taken (Judgment Dowd J para. 5).
On the resumed hearing on 23 July, the Claimant tendered a Statutory Declaration of his own and Statutory Declarations - attaching their respective reports - from Dr. Stoermer, Dr. Erskine-Smith and Dr. Godfrey, an oral surgeon. In addition, the Claimant tendered the record which had apparently been obtained from the RNSH Dental Clinic (Annexure "O" to Claimant's Submissions), the purpose of that tender seemingly being to demonstrate that the record contained no reference to damage caused by grinding.
At the same hearing, Drs. Van Der Merwe and Morawetz tendered Statutory Declarations which they had made together with a Statutory Declaration by a Ms. Ashton, who was a dental nurse employed in the practice, and who had assisted Dr. Morawetz when she treated the Claimant. In addition to tendering those Statutory Declarations, the doctors gave oral evidence which they illustrated in part by reference to the tooth mould which Dr. Van Der Merwe had made in October 1996, which mould was tendered. On this occasion, the Claimant was given the opportunity to read the Statutory Declarations tendered by the doctors and was offered the opportunity to cross-examine the doctors on the oral evidence which they gave.
Despite the fact that, on the hearing before this Court, the Claimant complained that it was quite impossible for him fully to comprehend and digest the Statutory Declarations and the oral evidence, he did not, at that time, seek to obtain from the referee copies of those Statutory Declarations or of Dr. Van Der Merwe's Patient Record which was also tendered on the hearing. On the hearing before this Court, the Claimant asserted that the reason for his failure to request copies of that evidence at the time was his belief that parties to a consumer claim were not entitled to copies of the evidence tendered by the opposing party.
On 24 July 1997, Dr. Morawetz wrote to the Tribunal requesting copies of the reports of Drs. Stoermer, Erskine-Smith and Godfrey. That request, so it would seem, was, as appears to have been the practice, referred to the referee who, on 30 July 1997, decided that it was appropriate that those copies be supplied, as they were on 4 August 1997.
Meantime the Claimant had on 29 - or perhaps it was 30 - July 1997 applied to the Tribunal for leave to uplift the tooth mould in order that it might be examined by experts. A telephone note (Annexure "H1" to the Claimant's Submissions) dated 30 July 1997, and made by a Ms. Smith records:
"c phoned to see if he could pick up teeth to take and be examined by experts. Advised c he couldn't take teeth away to be examined but the experts can come to our office to examine teeth."
A later telephone note dated 16 September 1997 (Annexure "H2" to Claimant's Submissions) also made by Ms. Smith records (inter alia):
'C phoned and wanted to know if he could pick up his teeth for a dentist to examine. Advised C that the Ref had already advised C that if any dentist was to look at the teeth it was to be at the CCT. C said he would fax a letter to Ref to see if he would change his mind because the dentist wants to charge C $200.00 to examine teeth at CCT. …"
In an Affidavit sworn by him on 14 April 1998 in connection with the application to Dowd J (Annexure "G1" to Claimant's Submissions), the Claimant deposed as follows:
"5.I refer to paragraph 10 of my Affidavit sworn 2 February 1998. As a result of my further inquiries as deposed to above, I now believe the telephone conversation between myself and the lady at the Consumer Claims Tribunal deposed to therein as occurring on 7 August 1997 actually occurred on 8 September 1997. With respect to such telephone conversations (sic) on 8 September 1997 I now recall I telephoned the Consumer Claims Tribunal a number of times on 8 September 1997. I telephoned the Tribunal at about 4.42 p.m. and had a conversation that lasted for about 5 minutes. During this conversation I said words to the effect 'I didn't make a photocopy of some of my evidence especially Dr. Craig Erskine-Smith's letters, can I have a copy of them please'. The lady replied 'Yes, they will be delivered in the next day's mail'. I said 'Could I have the photocopy of the other side's evidence?'. She said 'You can't have copies of the other side's evidence.'
I then said 'I want a copy of the Statutory Declaration I made to the Dental Board which I don't have a copy of'. 'This evidence was presented by the Respondents but it is my Statutory Declaration, am I allowed to have it?' She replied 'You can't have copies of the other side's evidence no matter what it is'.
At about 4.51 p.m. I telephoned the Tribunal again and said 'Can I have a copy of the Royal North Shore Dental Clinic's record'.
I cannot be sure as to the exact content of the other telephone conversations which the Tribunal on 8 September 1997."

The telephone note made by a Ms. Celita, a member of the staff of the Consumer Claims Tribunal on 8 September 1997 (Annexures "H1-H2" to the Claimant's Submissions) reads as follows:
"Claimant telephoned. Asked for photocopy of Royal Nth Shore dental Clinic and Dr. Crae's (sic) letter, also Eskine Smith's (sic) letter. leters (sic) and certificates wh he supplied to Tribunal."
In his Judgment (para. 14) Dowd J wrote (inter alia):
"I do not accept (the Claimant's) evidence in the light of his cross-examination and the lack of clear corroboration material written and filed by him that he requested written material in his telephone call of 8 September 1997 …"
On 9 September 1999, the Claimant forwarded to the Registrar of the Dental Board by facsimile a letter requesting a copy of his Statutory Declaration which formed his complaint to the Board (Annexure "G2" to Claimant's Submissions) a copy of which Declaration appears to have been forwarded by facsimile to the Claimant by the Registrar on the same day (Annexure "G3" to Opponent's Submissions).
On the third hearing day, the Claimant tendered Statutory Declarations of himself, Dr. Godfrey (2), Dr. Ashton, a dentist "from HCF", Dr. Churchin, a prosthodontist, his report (Annexure "L" to Claimant's Submissions) being dated 7 October 1997. There is no suggestion that any of those Statutory Declarations or reports had been made available by the Claimant to Dr. Van Der Merwe or Dr. Morawetz prior to the commencement of the hearing on the third hearing day.
Dr. Churchin's report contained the following (inter alia):
"There were obvious bruxowearfacets on the teeth consistent with both clenching and grinding habits. The latter would be a mixture of protrusive and lateral jaw movements. When Mr. Park was instructed to carry out various eccentric jaw movements there was no contact between the tooth 31 and its opposing teeth.
A report of the pre-restored study models shows an elliptically shaped defect. Taking the tooth grinding habit in to (sic) account there appears to be a loss of 2-3mm of incisal tooth structure not consistent with tooth clenching/grinding.
DIAGNOSIS
In response to specific questions posed by Mr. Park the following may be stated:
1.The tooth wear pattern on the pre-restorative model is a combination of both tooth grinding and damage from another source.
2.Given Mr. Parks' (sic) assertion that the tooth loss was not present before the handpiece was dropped; it is feasible that this could be the source of the damage.
PROGNOSIS AND FUTURE TREATMENT NEEDS
Given Mr. Parks (sic) tooth grinding habit I believe that he requires an occlusal splint to protect the restoration of the 31 from further damage. The tooth also needs to be monitoned (sic) on an annual basis."
After the Claimant had tendered the Statutory Declarations to which I have earlier referred and read them, Dr. Morawetz tendered and commenced to read a Statutory Declaration which had been made by Dr. Harty, also a prosthodontist . Although the materials before the Court do not contain a copy of that report, Mr. Referee Kelly in his reasons recorded that, in it, Dr. Harty:
"… stated he examined a mould of the Claimant's teeth taken soon after the alleged incident and said 'the loss of the tooth structure could be caused by a number of different factors for example trauma, biting on hard food or grinding on the tooth in question. I do not feel that the loss of tooth structure seen on this tooth is consistent with removal of tooth structure by dental drill."
In paragraph 7 of the Affidavit sworn by him on 14 April 1998 - the materials which are before the Court do not contain the whole of that paragraph - the Claimant asserted (inter alia):
"7.I refer to paragraph 15 of my Affidavit sworn 2 February 1998. About 40 to 50 minutes prior to the conclusion of the hearing on 10 October 1997 Dr. K. Morawetz commenced reading Dr. Harty's report. I said to the Referee 'Are they allowed to do that'. The Referee said 'Yes". I said 'When I rang you, either Judith Paskins or Meg Smith said to me that I was not allowed copies of the other side's evidence'. I then listened to Dr. Harty's report. Dr. Morawetz particularly criticised Dr. Godfrey's report dated 15 July 1997 quoting a section of Dr. Harty's report."
This paragraph in the Claimant's affidavit invites the following comments:
1.as is apparent from what I have earlier recorded, the person to whom the Claimant spoke on 8 September 1997 was not Ms. Smith or Ms. Paskins but Ms. Celita;
2.the telephone note made by Ms. Celita does not record any request by the Claimant for copies of evidence tendered by Drs. Van Der Merwe or Morawetz;
3.as I have earlier recorded, Dowd J, in his Judgment, rejected the Claimant's evidence that in his telephone call of 8 September 1997, he had sought copies of the evidence which had been tendered by Dr. Van Der Merwe or Dr. Morawetz;
4.although, as I will shortly record, the Claimant later sought from the Consumer Claims Tribunal copies of the Statutory Declarations tendered by Dr. Van Der Merwe and Dr. Morawetz, there is no suggestion that, on the hearing on the third hearing day, the Claimant sought copies of any of those Statutory Declarations;
5.as will be apparent from what I have earlier written, there is no suggestion that, prior to the commencement of the hearing on the third hearing day, the Claimant had supplied to Drs. Van Der Merwe and Morawetz copies of the additional Statutory Declarations which he tendered on that day;
6.despite what he claims to have been his protests at the reading of Dr. Harty's Statutory Declaration, the Claimant did not seek an adjournment in order that he might obtain a copy of that Statutory Declaration and seek expert evidence in order to reply to it - the Claimant asserted, on the hearing before the Court, that his failure to do so was due to the fact that Mr. Referee Kelly had indicated that 10 October 1997 was to be the final hearing day.
In his reasons, to which I have earlier referred, Mr. Referee Kelly wrote (inter alia):
"After the final hearing, the Claimant submitted a Statutory Declaration seeking copied (sic) of 'material supplied by the Respondents'. I can see no point in acceding to this request. It was not made at the hearing; Respondent (sic) and Ms. Ashton made Statutory Declarations which claimant read and each attended repeated their evidence orally and claimant was offered the opportunity of questioning them. Mr. Harty's Statutory Declaration was produced at the last hearing and claimant was given the opportunity of reading it and commenting thereon. Respondent also produced claimant's dental records to which Claimant was given access during the hearing."
The Claimant's Statutory Declaration which is said to have been dated 12 October 1997 must have been forwarded to the Consumer Claims Tribunal by facsimile for, as I have earlier recorded, Mr. Referee Kelly's reasons are dated 12 October 1997.
In his reasons, Mr. Referee Kelly recorded and commented on the evidence which had been provided by the Claimant's experts, and the evidence provided by Dr. Van Der Merwe and Dr. Morawetz. Having done so, he offered some comments of a critical kind of the Claimant and his credibility as a witness and recorded varying descriptions which had been given by the Claimant of the alleged incident on 8 October 1996. Having done so, he concluded:
"Neither claimant's evidence or that of his experts satisfy me that Respondent One was negligent nor caused any deteriotion (sic) to his front bottom tooth.
The evidence of Respondents and their witnesses satisfy me that Respondent One was not negligent and did not cause any deterioration to the tooth."
A note made by Ms. Paskins on 13 October 1997 at 11.21 am (Annexure "F" to Claimant's Submissions) records the following (inter alia):
"C came in to photograph teeth mould, Meg sat with him 1 hour. He then spoke to me, asked why copies of his stat dec were sent to R which enabled R to provide expert advise (sic) which cancelled his evidence, he feels he was disadvantaged by this, also C said he had been told, he thinks by me, that he could not have copies of R evidence but I had sent copies of all his evidence to R. !!!!
I told C that all info he sent with his claim form is sent to R, and I had no knowledge of his request for all of R's evidence, also told C all evidence is available to all parties to see, but not all evidence is permitted to be given to all parties and if R presented evidence at H, C should have asked Ref if he could have copies."
On 2 February 1998, s.101(2) of the Supreme Court Act 1970 was amended so as to read:
"101(2) An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal from -
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(r)a final judgment or order in proceedings of the Court, other than an appeal:
(i)that involves a matter at issue amounting to or of the value of $100,000 or more, or
(ii)that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more."
Although the materials which are before the Court do not clearly demonstrate that this was so, the probability is that it was in February 1998 when the application which ultimately was dealt with by Dowd J was filed on behalf of the Claimant.
Although Drs. Van Der Merwe and Morawetz, as well as the Consumer Claims Tribunal were joined as defendants to that application, each of Drs. Van Dr Merwe and Morawetz filed a submitting appearance to the proceedings as did the Consumer Claims Tribunal. At some time prior to the application coming on for hearing before Dowd J, the then Minister exercised the right conferred on her by s.44 of the Consumer Claims Tribunals Act 1987 to intervene in the proceeding and thus became the sole contradictor in the hearing before Dowd J.
That application, as I have previously recorded, was heard by Dowd J on 10 February 1999, his Honour's Judgment being delivered, and the application dismissed by his Honour, on 11 February 1999.
In his Judgment (para 11) Dowd J identified the basis of the Claimant's assertion that he had been denied natural justice in the following way:
"The complaint of the plaintiff as articulated by Mr. Davidson before me in the hearing was first, that the plaintiff was denied by the tribunal copies of the evidence provided on behalf of Morawetz and Van der Merwe in his (sic) letter of 17 June 1997 and at the hearing on 19 June 1997 and in his telephone call of 8 September 1997. Secondly, the plaintiff claims that at the third hearing insufficient time was afforded to permit the plaintiff an opportunity to examine the material filed, particularly the evidence of Warwick Harty, refuting the evidence filed on behalf of the plaintiff, and thirdly, that he was not afforded an opportunity to reply to that statutory declaration. There was considerable evidence before me by way of affidavits and their exhibits and correspondence at the hearing and the subsequent correspondence between the various parties. It is clear, and I accept this, that the plaintiff feels a sense of grievance that the two dentists were supplied with his evidence and he was not supplied with theirs. He feels that there is an injustice in that the parties were not treated in the same ways."
Having stated those grounds, Dowd J then continued (paras. 12-22):
"It is accepted by Mr. Davidson on the plaintiff's behalf that the tribunal is obliged to furnish to those against whom a complaint is made, copies of the material. It must be remembered that Consumer Claims Tribunals are intended to be informal proceedings and that the intention is to expeditiously and inexpensively resolve disputes. The tribunal gave some five hours of hearing. Although the plaintiff said that he was intimidated by the time provided to him in examining particularly Warwick Harty's evidence which was supplied at the hearing of 10 October 1997 in answer to his own, which evidence refuted the contention that the damage to the tooth was done by some action of Morawetz, he does not allege in evidence or otherwise that there was any action on the part of the referee to prevent him from reading the material.
Although I accept that he felt intimidated by the fact that people were looking at him as he read, he does not allege and cannot point to any action which denied him an opportunity to properly examine the material. The plaintiff is an articulate, forthright and assertive person who does not appear to be to be readily intimidated, although I accept that he felt so intimidated.
In the light of the function of the tribunal in its speedy and expeditious disposal of claim (Singer v. Statutory and Other Officers Remuneration Tribunal (1986) 5 NSWLR 633 at p.635), I do not feel that any evidence has been put before me to show that the plaintiff was denied natural justice in not being furnished material which he said he sought. I do not accept his evidence in the light of his cross-examination and the lack of clear corroboration in the material, written and filed by him, that he requested written material, in his telephone call of 8 September 1997 but even if he had the relevant, significant evidence of Warwick Harty had not yet been filed before the tribunal. Even if the June and July material had been furnished at that stage, this would not have altered the result.
The rules of natural justice apply to the tribunal, not the registry. It is not the registry's function to provide that material. I do not accept that at the third hearing there was insufficient time afforded to the plaintiff to examine the material. He says that he was given either between five and thirteen minutes to examine it although there is no evidence that his examination of the material was terminated in any way. The termination was of his own choosing.
It is conceded that the plaintiff did not seek an adjournment to answer Warwick Harty's report.
His request for the material being forwarded to him in his statutory declaration of 12 October was denied, being a decision made by the tribunal after the conclusion of the hearing. His application did not set out that he had been prejudiced by the evidence of Warwick Harty he was simply seeking the furnished material, on the basis that the two dentists had had it furnished to them and that he should have theirs furnished to him. The plaintiff's reasons furnished to the referee on 10 October 1997 (sic), in the light of the fact that the hearing had been concluded, did not show that if he had been granted an opportunity to furnish additional material a different result would have ensued. There was nothing in that statutory declaration that would reasonably support a request for further re-opening of the hearing and it has not been shown to the Court that any denial of natural justice occurred thereby.
In the High Court in Stead v. SGIO (1986) 161 CLR 141 held (sic) that not every departure from the rules of natural justice at a trial will entitle an aggrieved party to a new trial. All that an appellate (sic) needs to show is that the denial of natural justice deprived him of a successful outcome. It is necessary for the appellate court to find that a properly conducted trial could not possibly have produced a different result.
In terms of the reasons put forward by the plaintiff in his statutory declaration of 12 October he did not therein clearly articulate that he required an opportunity to refute the evidence of Warwick Harty. I do not see any basis in the light of the evidence, at that stage, before the tribunal and in the articulated reasons furnished by the tribunal, that even evidence that completely answered Warwick Harty's evidence could have altered the evidentiary balance in favour of the plaintiff. The issue of grinding had arisen at the second hearing. There was ample opportunity for the plaintiff to answer that. The evidence of grinding as a basis for the chip was also adduced at the third hearing. The plaintiff has not shown that even if he had been furnished an opportunity to produce further evidence that he could have produced evidence to show that the grinding could not have produced the chip therefore even if the referee had breached the rules of natural justice the plaintiff has not shown that such evidence would have produced a different result. The onus is on the plaintiff to show evidence would have negatived the evidence of Morawetz, in the first place, and in particular Warwick Harty at the final hearing. I do not find that he was denied the opportunity to produce the evidence but (sic). He had not shown this court, the evidence that he would have produced to change the result. He therefore fails the test in Stead.
There was no evidence before the tribunal either at the hearing or subsequently that the plaintiff was under any disadvantage and there is no obligation on the tribunal under the Act to furnish copies of any statutory declarations filed by the respondent: Hodgekinson v. Companies Auditors and Liquidators Board (1994) 50 FCR 504. And Archcom Pty. Ltd. v. CCT, unreported decision of Simpson J of this Court of 29th September 1995.
In my view the plaintiff has failed to establish any denial of natural justice in respect of any of the three claims made out by him. The Amended Summons is therefore dismissed. An application has been made by the first defendant (sic) for costs. In the light of the plaintiff failing to succeed in this hearing I can see no basis for making a finding other than in terms of the normal principle that costs should follow the event and therefore I allow the first defendant (sic) costs against the plaintiff. I make no order for costs in respect of any of the defendants (sic).
The orders that I make therefore are as follows:
1.The Amended Summons is dismissed.
2. The plaintiff should may (sic) the costs of the intervener.
3. I make no order as to the costs of the defendants."
The Consumer Claim's Tribunal Act 1987 was repealed on 1 March 1999, on which date the Consumer Claims Act 1998 and the Fair Trading Tribunal Act 1998 came into force. Section 7 of the Consumer Claims Act 1998 conferred upon the Fair Trading Tribunal established by the Fair Trading Tribunal Act 1998, jurisdiction to hear and determine consumer claims. Part 2 - Provisions Consequent on an Enactment of this Act of Schedule 1 - Savings and Traditional Provisions - of the Consumer Claims Act 1998 provided (inter alia):
"3. Phasing out of Consumer Claims Tribunals
(1) On the date of commencement of this Schedule:
(a)no application may be made to bring any matter before a consumer claims tribunal and
(b)the consumer claims tribunals continue to exist, and any person holding office as a member of such tribunal immediately before that date continues to hold office as such, only for the purpose of the exercise by the tribunals of their functions under clause 5, and of winding up their affairs.
………
5. Pending proceedings
Proceedings before a consumer claims tribunal that:
(a)were instituted before the commencement of this Schedule, and
(b)have not been finally determined by the consumer claims tribunal before the commencement of this Schedule,
may be continued and determined as if this Act had not been enacted, and for that purpose the provisions of any Act, statutory rules or other law that would have applied to or in respect of the proceedings had this Act not been enacted continue to apply".
Although the materials which are before the Court do not clearly demonstrate that this was so, the probability is that the Claimant filed a Notice of Appeal Without Appointment on 11 March 1999 (see Transcript of application before Mr. Deputy Registrar Studdert on 9 August 1999 p.2).
Thereafter, on 10 June 1999, the Claimant filed a Notice of Appeal with appointment.

On 2 July 1999 there was filed on behalf of the Minister a Notice of Motion seeking that the appeal be struck out as incompetent.
When that Notice of Motion came before him on 9 August 1999, the Deputy Registrar Studdert directed (T.6) first, that the Claimant file a Summons for Leave to Appeal, and, second that the Notice of Motion stand adjourned to be dealt with at the same time as the Summons for Leave to Appeal - that Summons appears to have been filed on 31 August 1999.
On 24 December 1999 the Claimant filed the Notice of Motion to which I referred at the outset (para. 1 (above)) of this Judgment.
It is against the background of the facts as I have recorded them above that the Court must deal with the applications which have been made to it.
It is convenient, first, to deal with the Claimant's application to have the Minister removed from the proceedings as a party.
The sole basis upon which the Claimant has sought to found this application was that the Minister was an "officious busybody" and not a person with any real or legitimate interest in the outcome of the proceedings. To support this submission, the Claimant relied upon some of the observations of McHugh J in the course of the argument on the application for leave to appeal from this Court to the High Court in Batemans Bay Local Aboriginal Council v. The Aboriginal Community Benefit Fund S 114/97 2 December 1997 as to "lax rules on standing" and also on the observations of a number of judges of the Court - for example, Abadee J in Parkroad Projects Pty. Limited v. Luckey [1999] NSWSC 241 - for refusing to award costs to the Minister who, having intervened in proceedings, had succeeded in the proceedings.
This application may be dealt with shortly. As will be apparent from what I have earlier recorded, s. 44 of the Consumer Claims Act conferred upon the Minister a right to intervene in the proceedings in any matter in which a decision of a referee was challenged in any court, so that there arose no question beyond the fact that Mr. Referee Kelly's decision was challenged which required the Minister to establish some special ground for standing or for leave to intervene being granted. Further, while the observations of judges of the Court going to the question of the exercise of their discretion as to costs are relevant to that issue, they do not bear upon the question of the right of a Minister to intervene in, and to become a party to, proceedings. Further still, as s.44 of the Consumer Claims Act makes clear, once the Minister has intervened, she or he becomes a party to the proceedings and has all the rights, and is

subject to all the obligations, of a party.

It follows that the claimant's application to have the Minister removed as a party to the proceedings must fail.
I turn, next, to deal - albeit but briefly - with the Claimant's assertion that he may appeal as of right.
The basis for the Claimant's assertion is anything but clear - at one stage he made an oblique reference to the amendments to Part 5 of the Justices Act 1902 made by the Justices Legislation Amendment (Appeals) Act 1998, which have nothing of any relevance to say on the question - but, perhaps, it is to be found in his belief that on an appeal this Court would have jurisdiction to award him damages - including aggravated damages - which would exceed the sum of $100,000.00 (see Affidavit J. Park sworn 15 October 1999).
But whatever may be the basis for the Claimant's assertion, the simple fact is that, even if this Court were to uphold an appeal from Dowd J., all that it could do, in the circumstances, would be to remit the Claimant's consumer claim to the Tribunal - the limit of the jurisdiction of which, as I have earlier noted, was $25,000.00 - to be dealt with according to law.
It follows that it was not open to the Claimant to appeal as of right.
I turn, then, to the primary question for determination upon these applications.
As s. 17 of the Consumer Claims Act made clear, and as does not appear to have been disputed on the hearing before Dowd J, a referee constituting a tribunal for the purpose of determining a consumer claim must conform to the "rules of natural justice".
This being said, it is to be observed that the "rules of natural justice" are not rigid or technical. As Tucker J (as his Lordship then was) said in Russell v. Duke of Norfolk [1949] 1 AER 109, 118:
"The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth."
However, while the detailed content of "the rules of natural justice" may vary from case to case, it seems to me that, in a case such as this was said to be, the essential ingredients are three, they being:
1.that each party to the proceeding is informed of the nature of the case sought to be raised against him,
2.that each party to the proceeding has an adequate opportunity to test the case that is being raised against him and to tender material designed to contradict that case; and
3.that the person who constitutes, or the persons who constitute, the tribunal, has, or have, no personal interest in the outcome of the proceedings or is, or are, not otherwise disqualified from participating in, or being present at, the deliberations of the relevant tribunal.
I agree with Dowd J that, in the present case, the Claimant failed to demonstrate that the referee failed to accord to him the benefit of "the rules of natural justice".
It is to be observed, at the outset, that the function of the Tribunal is to provide for the speedy and expeditious disposal of consumer claims in a manner which does not involve the formality of a hearing before a conventional court and in a manner intended to keep costs to as low a level as possible. This fact, of necessity, has a bearing upon the content of "the rules of natural justice" to be applied in relation to the hearing and determination of a consumer claim.
This notwithstanding, the essential ingredients of those rules, as I have suggested above, needed still to be observed.
It is my view that, in the present case, those rules were observed and that the Claimant has failed to demonstrate otherwise.
It is clear that, from the outset, the Claimant appreciated that, in order to succeed in his claim, he needed to demonstrate negligence on the part of Dr. Morawetz. It is also clear that, even before he had lodged his claim, the Claimant appreciated that one of the issues which he was likely to meet on any hearing was whether or not, contrary to what he asserted had been the case, such damage as his tooth disclosed was due to grinding (see Dr. Erskine-Smith's report).
It is equally clear that, by no later than the commencement of the second hearing before the referee, the Claimant had armed himself with material (the reports of Drs. Stoermer, Erskine-Smith and Godfrey and the record from the NRSH Dental Clinic) intended both to support his version of how the damage to his tooth was sustained and also to meet the expected claim by Drs. Van Der Merwe and Morawetz that the damage had been caused by grinding.
Further, it is clear that, on the second hearing before the referee, the Claimant was given the opportunity to read the Statutory Declarations tendered by Drs. Van Der Merwe and Morawetz and also to cross-examine them on the oral evidence which they gave, as also is it clear that the Claimant did not, at that time, either, seek an adjournment in order to consider those matters, or, seek then to obtain copies of the Statutory Declarations which had been tendered by the doctors.
Despite the fact, which I have earlier recorded, that the Claimant asserted that, on 8 September 1997, he sought copies of the Statutory Declarations which had been tendered by Drs. Van Der Merwe and Morawetz, Dowd J, as I have earlier recorded, rejected the Claimant's evidence in that regard. Although the Claimant mounted a significant argument on Dowd J's finding in this respect, I see no reason to interfere with his Honour's finding, as the material which is before the Court would seem to demonstrate, first, that there was no rigid rule that copies of materials which had been tendered would not be made available to opposing parties; second, that when a request for copies of, or access to, material which had been tendered was made, it was referred to the relevant referee for his decision; third, that, when requested, copies of material which had been tendered were commonly made available to the applicant party; and that, while the uplifting of evidence - as, for example, the tooth mould - may not have been permitted, access to it in the Tribunal's premises was available.
Nor so it seems to me, did what occurred on the third hearing involve a denial of "the rules of natural justice".
It is clear that, even if it had not been so before, by this time the Claimant appreciated that there was a significant issue between himself and Drs. Van Der Merwe and Morawetz as to the cause of any damage to his tooth and that, by reason of that fact, he had armed himself with further material - the further reports of Dr. Godfrey, the report of Dr. Ashton and the prosthodontist's report of Dr. Churchin - dated then as recently as 7 October 1997 - to support his claim, as also does it seem to be clear that none of those reports had been served upon or made available to Drs. Van Der Merwe and Morawetz prior to the commencement of that hearing.
While it is true that the Claimant asserts that, when Dr. Morawetz commenced to read the Statutory Declaration of Dr. Harty, he protested, it seems to be clear that he did not seek an adjournment in order to deal with it, nor did he then seek to obtain a copy of it so that it might be referred to his professional advisers. His claim that he did not do so as the referee had earlier made it clear that the hearing on that day was to constitute the final hearing of the claim is difficult to accept in the light of the fact that, a few days later, he sought to obtain copies of other Statutory Declarations which had been tendered by Drs. Van Der Merwe and Morawetz on the second hearing day.
Nor does the fact that the referee declined to accede to that later request in my view constitute a denial of "the rules of natural justice". As I have earlier indicated, the function of a tribunal constituted by a referee when dealing with a consumer claim is to deal with it in a speedy and expeditious manner and at as little cost as is possible. Given that the parties appear to have had a more than adequate opportunity to advance their respective cases, to tender material in opposition to, and otherwise to test, the case advanced by the opposing party or parties and given that the request made by the Claimant seems merely to have been for the provision of material rather than an application to reopen the hearing, there seems to me to have been no reason why the referee should have acceded to the Claimant's request.
However, while I agree with Dowd J that, in the present case, the Claimant failed to make out his claim that he had been denied the benefit of "the rules of natural justice", I would wish to add an observation as to that part of his Honour's Judgment where he wrote:
"… There is no obligation on the Tribunal under the Act to furnish copies of any statutory declarations filed by a respondent: Hodgekinson v. Companies Auditors and Liquidators Board (1994) 55 FCR 504. And Archcom Pty. Ltd v. CCT unreported decision of Simpson J of this Court on 29th December 1995."
It is true that the Consumer Claims Act did not, in terms, impose on the Tribunal or upon the referee appointed to deal with a consumer claim any obligation to furnish copies of any Statutory Declarations filed by a respondent - or, for that matter, except to the extent to which it formed part of a consumer claim, by a claimant. This notwithstanding, the obligation of the referee to abide by "the rules of natural justice" required him to ensure that a party was given reasonable information as to the case which he had to meet and was given an adequate opportunity to test that case and to tender material in opposition to that case. In a case such as this seems to have been, that obligation, as it appears to me, extended to providing to a party, if requested prior to the conclusion of the hearing of the consumer claim, copies of material tendered by the other side in order that that material might be digested and understood and, if need be, referred to professional advisers, and also extended toward granting an adjournment, if sought on reasonable grounds and prior to the conclusion of the hearing of the consumer claim, in order that that material might be referred to professional advisers and any appropriate answer obtained.
However, in the present case, as what I have earlier recorded makes clear, no such request was made prior to the conclusion of the hearing of the consumer claim, it following that the referee did not, in this respect, fail to accord to the Claimant the benefit of the "rules of natural justice".
I therefore conclude that the Claimant has failed to make out any case for the grant of leave to appeal on the principal ground sought by him.
The Claimant also sought to challenge the order made by Dowd J as to costs, the basis for that claim being that the Minister was "an officious busybody" and, therefore, in the light of the observations of such Judges of the Court as Abadee J in Parkroad Projects Pty. Limited v. Luckey supra, ought not receive an order for costs.
The making of an order for costs is a matter which lies at the discretion of the Court. That being so, in order that an appeal against the making of such an order might succeed, it must be demonstrated that the order is one which falls in one or other of those cases referred to in the well known passage in the joint Judgment of Dixon, Evatt and McTiernan JJ in House v. The King (1936) 55 CLR 499, 504-505. It is sufficient, in my view, to record that the Claimant has failed to demonstrate that the order made by Dowd J falls within one or other of those classes of case.
The Claimant has therefore failed to make out any ground for the granting of leave to appeal on this aspect of the matter as well.
I would therefore propose the following Orders:
1.ORDER that the Appeal filed 10 June 1999 be dismissed as incompetent.
2.ORDER that the Notice of Motion filed by the Claimant 24 December 1999 be dismissed.
3. ORDER that the Summons for Leave to Appeal be dismissed.
4.ORDER that the Claimant pay the First Opponent's costs of the Appeal - such costs to include the costs of the Notice of Motion filed by the First Opponent on 2 July 1999 - of the Notice of Motion filed by the Claimant on 24 December 1999 and of the Summons for Leave to Appeal.
5.MAKE NO ORDER as to the costs of the Second, Third and Fourth Opponents.
BEAZLEY JA: I agree with Powell JA.

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LAST UPDATED: 22/05/2000

[2000] NSWCA 96

5 May 2000

Key Legal Topics

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Administrative Law

Civil Procedure

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Appeal

Natural Justice

Procedural Fairness

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