Partridge v Building Disputes Tribunal
[1999] NSWSC 810
•6 August 1999
CITATION: Partridge & Anor v Building Disputes Tribunal & Anor [1999] NSWSC 810 CURRENT JURISDICTION: Administrative Law FILE NUMBER(S): 30004/98 HEARING DATE(S): 12 July 1999, 13 July 1999, 14 July 1999, 15 July 1999, 16 July 1999 JUDGMENT DATE:
6 August 1999PARTIES :
Jon Gregory Partridge and Linda Partridge (Plaintiffs)
Building Disputes Tribunal (1st Defendant)
Amcon Constructions Pty Limited (2nd Defendant)
Minister for Fair Trading (Intervener)JUDGMENT OF: Studdert J at 1
LOWER COURT JURISDICTION: Building Disputes Tribunal LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER:
COUNSEL : Plaintiff: In person
1st Defendant: Submitting appearance
2nd Defendant: Mr J Sexton
Intervener: Mrs M GilmourSOLICITORS: Plaintiff: In person
1st Defendant: Crown Solicitor
2nd Defendant: Bilbie Dan Hickey
Intervener: Crown SolicitorCATCHWORDS: Consumer claim; appeal from decision of referee; limited nature of appeal; whether denial of natural justice; Consumer Claims Tribunals Act, ss 10(3), 12, 17, 23, 30, 31 ACTS CITED: Consumer Claims Tribunals Act 1987
Fair Trading ActCASES CITED: Carpet Fashion Pty Limited v Consumer Claims Tribunal (1992) ASC 56-189
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Fintron Pty Limited v Registrar, Consumer Claims Tribunal (unreported, Graham AJ, 16 December 1997)
Archcom Pty Limited v Consumer Claims Tribunal (unreported, Simpson J, 29 September 1995)
APA Insurance v Charles (1981) 2 NSWLR 352
Health Care Complaints Commission v McDonald (unreported, McInerney J, 4 Nopvember 1997)
Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259
Webb v The Queen (1993-94) 181 CLR 41DECISION: See para 113
IN THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISIONSTUDDERT J
Friday 6 August 1999
030004/98 JON GREGORY PARTRIDGE & ANOR v BUILDING DISPUTES TRIBUNAL & ANOR
JUDGMENT
1 HIS HONOUR: By their amended summons the plaintiffs, Jon Gregory Partridge and Linda Partridge, have brought proceedings in the Administrative Law Division of this Court against the Registrar, Building Disputes Tribunal as first defendant and Amcon Constructions Pty Limited as second defendant. The Minister for Fair Trading has been added as intervener in the proceedings pursuant to s 44 of the Consumer Claims Tribunals Act 1987 . The orders sought by the plaintiffs are the following:
“1. An order that the decision of 2.12.1997 of the Building Disputes Tribunal be reviewed under section 12(b)(ii) of the Consumer Claims Tribunal Act 1987 on the grounds that in relation to the hearing and determination, the appellant was denied natural justice; and
2. An order that the appellant be allowed until 15.1.1998 to make this appeal.”
2 No challenge has been made to any right of relief the plaintiffs might otherwise have on the basis of delay in the commencement of these proceedings and accordingly the issue on this summons has been whether or not grounds have been established to disturb the decision of the Tribunal.
3 The plaintiffs have not enjoyed the benefit of legal representation before this Court and the second plaintiff, Linda Partridge, has appeared in person representing herself and her husband. The Tribunal filed a submitting appearance and Mr Sexton of counsel has represented the second defendant. Mrs Gilmour of counsel has represented the intervener.
4 No less than thirteen affidavits were sworn by the second plaintiff. Many of these were objectionable as to form and as to content and a great deal of the hearing time in this matter was taken up in ruling on objections taken to the plaintiffs’ affidavits. The second plaintiff was cross examined.
5 The notes made by the referee in the course of the proceedings before the Tribunal were introduced into evidence and so too were the referee’s reasons for her decision. In addition, the exhibits placed before the referee were tendered in this Court, as was additional material from the file of the Registry of Consumer Claims Tribunals pertaining to the plaintiffs’ claim.
6 The second defendant entered into a contract with the plaintiffs to carry out building work for them in the construction of residential premises at 11 Burwood Street, Merewether. The dispute arose over the plaintiffs’ claim that the work done by the second defendant was defective in a number of respects. The claim as amended and presented by the plaintiffs before the Tribunal sought an order for the cost of rectification of the defective work in an amount of $18,985. The second defendant countered with a claim for extras for what it alleged was additional work required on the foundations by reason of engineer’s requirements and this claim for extras amounted to $4686.25.
7 The plaintiffs were largely unsuccessful before the Tribunal, recovering only $280, but on the other hand the second defendant was found to be owed $4686.25 for the work which the referee found to have been extra work. In the result the order of the Tribunal required the plaintiffs to pay to the second defendant the sum of $4406.25.
8 By reason of s 34 of the Consumer Claims Tribunals Act an order of a Tribunal “is final and binding on all parties to a consumer claim that is heard and determined by the Tribunal and no appeal lies in respect of an order of the Tribunal.” As the section specifically recognises however, relief may be granted pursuant to s 12 of the statute. Section 12 provides:
“(1) Except as provided by subsection (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 or a remedy of a kind referred to in subsection (1) if, in respect of a consumer claim:
(a) a tribunal has given a ruling under section 26 or refused or failed to give such a ruling after the jurisdiction of the tribunal to hear and determine the claim has been disputed by a party to the claim and the ground on which the relief or remedy is sought is that:
(i) the ruling was erroneous, or
(ii) the tribunal erred in refusing or failing to give the ruling after its jurisdiction was disputed, or
(b) a tribunal has made an order under section 30 and the ground on which the relief or remedy is sought is that:
(i) the tribunal had no jurisdiction to make the order, or
(ii) in relation to the hearing or determination of the claim, a party to the claim had been denied natural justice.”
9 In the present case it is the plaintiffs’ contention that they are entitled to relief under s 12(2)(b)(ii). It is to be observed that s 17 of the statute whilst providing for control and responsibility by the Tribunal of its own procedures requires the Tribunal to “conform to the rules of natural justice” (s 17(1)).
10 The nature of the relief available in this court from an order of a tribunal constituted under the Consumer Claims Tribunal Act 1987 is limited. It does not avail a party who feels aggrieved by a decision of a tribunal to maintain that a decision was made against the weight of evidence. Rather, as s 12(2) of the statute recognises, there must be shown, provided the tribunal had jurisdiction to make the order made, that there was in relation to the hearing or the determination a denial of natural justice.
11 Section 23 of the Consumer Claims Tribunal Act allows for a measure of informality in proceedings before a tribunal:12 In his decision in Carpet Fashion Pty Limited v Consumer Claims Tribunal (1992) ASC 56-189 Ireland J considered the concept of natural justice in its application to proceedings under the Consumer Claims Tribunal Act . In doing so his Honour cited the statement of principle by Dr Allars in “Introduction to Australian Administrative Review”. I refer to his Honour’s judgment at 57,919-57,920:
“(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 of practice or evidence and, subject to subsections (2) and (3), can inform itself on any matter in such manner as it considers appropriate.”
13 Mrs Gilmour referred to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and to dicta of Mason CJ at 356-357, referring to statements in English cases in the context of judicial review of findings of fact which supported a “no sufficient evidence test” . The Chief Justice said:
“It is important in the instant case to direct the issues to the permissible question. The issue in the instant case is not whether there was a decision against the weight of evidence, for it is not the function of this Court to review decisions made by referees under the Act merely because it is contended that a decision was made against the weight of evidence. The instant issue is whether there was a denial of natural justice.
Dr M. Allars in Introduction to Australian Administrative Review (1990) at 236 conveniently states the principles of natural justice or procedural fairness as follows:-
‘The three principles of procedural fairness are the hearing rule, the bias rule and the no evidence rule. The hearing rule, based on the maxim audi alteram partem, requires a decision-maker to give an opportunity to be heard to a person whose interest will be adversely affected by the decision. The bias rule, based on the maxim nemo debet esse in propria sua causa, requires a decision-maker to be disinterested or unbiased in the matter to be decided… The no evidence rule, which has developed comparatively recently, requires that a decision be based upon logically probative evidence.’
As I understand the submission of counsel for the plaintiff he bases his contention as to denial of natural justice upon the third of these bases, namely the no evidence rule. However, I must confess to some uncertainty as to the relevance of the Referee’s comment ‘It’s only $2,485’ to the question of whether the plaintiff was denied natural justice.
Again I stress that the question is not whether the decision went against the weight of evidence but only as to whether there was no logically probative evidence at all to support the conclusions of fact reached. Only then will the decision be open to review.”
14 Mrs Gilmour submitted that the requirement that the “no evidence rule” called for a decision to be based upon logically probative evidence was to state the effect of the rule too broadly in view of the above dicta. I do not accept that submission. In any event the above observations were not directed to the requirements of natural justice in the context of the provisions of the Consumers Claims Tribunals Act , and what natural justice requires may depend on the statute in question, so that there is a need to consider the framework of the particular legislation. Thus in Bond , Deane J said at 366:
“On the other hand, there are statements in the English cases which support a ‘no sufficient evidence’ test in the context of judicial review of findings of fact: see, for example, Reg v Governor of Brixton Prison; Ex parte Armah [1968] AC 192, at pp 235, 257, but cf pp 241, 263. It remains to be seen whether these statements convey any more than a ‘no probative evidence’ test. So far no occasion has arisen to determine whether this is the case and, if so, whether the statements are to be seen as expressing what is or should be the law of Australia on the topic. There are also statements in the English cases which suggest that findings and inferences are reviewable for error of law on the reasonably drawn from the primary facts: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, at p 36; Cooper v Stubbs [1925] 2 KB 753 at p 772; British Launderers’ Research Association v Borough of Hendon Rating Authority [1949] 1 KB 462 at pp 471-472; Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 at 1326; [1965] 3 All ER 371 at p 374. Further, in Mahon v Air New Zealand [1984] AC 808 at p 821 the Judicial Committee stated that natural justice requires that ‘the decision to make [a] finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self contradictory’. These statements may be traced back to the observations of Diplock LJ in Reg v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at p 488; see also Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at pp 67-68; 31 ALR 666 at pp 689-690, per Deane J (an appeal from a decision of Administrative Appeals Tribunal under the AAT Act). The approach adopted in these cases has not so far been accepted by this Court.”
15 In Fintron Pty Limited v Registrar, Consumer Claims Tribunal (unreported, 16 December 1997) Graham AJ said at p 5:
“As has often been said, the precise content of the obligation of a statutory tribunal to act judicially or to observe the requirements of natural justice or procedural fairness may vary according to the statutory framework of the particular proceedings.”
16 Once a tribunal under the Consumer Claims Tribunals Act has jurisdiction, there is no appeal on the merits. I respectfully agree with Simpson J when she said in Archcom Pty Limited v Consumer Claims Tribunal (unreported, 29 September 1995, at 7):
“The duty to accord natural justice is a duty to act fairly. What the rules of natural justice require in any particular case varies according to the circumstances and is to be determined, inter alia, by reference to the relevant statutory provisions.”
“It is also important to bear in mind that there is no appeal on the merits from the decision of a tribunal, and nor is there an appeal on a question of law.”
17 Moreover, once a tribunal has jurisdiction to make an order under s 30 of the statute, it has jurisdiction to err: see APA Insurance v Charles (1981) 2 NSWLR 352 and Archcom (supra, at 9).
18 For the purposes of the Consumer Claims Tribunals Act , I accept that the principles of natural justice are those identified by Ireland J in the Carpet Fashion case. The requirement that a decision must be based on logically probative evidence does not mean that the decision must follow the weight of the evidence. Where there is evidence available to a referee to support a finding of fact, provided it logically goes to the proof of that fact, there can be no denial of natural justice simply because in making that finding the referee prefers such supporting evidence rather than a preponderance of contrary evidence.
19 Against the background of the limited nature of the right of challenge afforded by s 12(2)(b)(ii) of the Consumer Claims Tribunal Act , I now consider in turn each of the many submissions advanced by the second plaintiff in support of the contention that the plaintiffs were denied natural justice by the referee who determined the outcome of the proceedings before the Tribunal.
20 It was submitted that the plaintiffs were denied natural justice because the referee arrived at various conclusions of fact, which conclusions were unsupported by logically probative evidence. The second plaintiff, in developing this submission, referred to a number of passages in the reasons expressed by the referee for her decision and I will deal with the various submissions to this effect in the order in which they were advanced.
21 (i) On p 9 of the reasons the following passage appears:
“I find that the architectural plans which were provided by the claimant provide details as to the depth to which excavations will have to be made to provide footings. This information, I find, the respondent relied on in his quotation. These specific details are disclosed in the respondent’s quotation .”
22 Mrs Partridge submitted that the sentence to which emphasis has been added above amounted to a decision of fact unsupported by logically probative evidence. Her submission in effect was that the referee should have found that the second defendant had the engineering drawings as well before quoting.
23 Mrs Partridge drew attention to a passage in the quotation under the heading “ Concreter” which, in referring to the “slabs”, stated inter alia:24 The second plaintiff then referred to the architectural plans which referred to the floor slab as follows:
“Jointex to single skin walls F72 reinforcement…”
“Floor slab F62 fabric…”
25 The second plaintiff submitted that it was necessary to go to the engineering drawings to see a reference to F72 in respect of the floor slab. Thus, it was argued, that the second defendant must have had the engineering drawings when the quotation was given.
26 No doubt that was an argument that was available to the plaintiffs in the proceedings before the referee, but I am not persuaded by it that the referee was compelled to make the finding which the plaintiffs sought to have made. The focus on those parts of the evidence to which this submission is directed is to ignore other evidence in the case, and in particular the evidence given on behalf of the builder. The paragraph from the referee’s reasons to which this submission is directed was preceded by a conclusion expressed in this passage also on p 9:
“Having considered the evidence presented by the parties, I am satisfied on the balance of probabilities that the respondent was not given the engineering plans at the time of quoting.”
27 In my opinion, that was a finding which was open to the referee and I stress for the benefit of the plaintiffs that it is not for this Court to substitute the finding it would or may have made upon the same evidence for a finding that the referee made.
28 This first challenge fails.
29 (ii) On p 7 of the reasons, the referee said:
“The success of the respondent’s counter-claim depends largely on whether the Tribunal accepts that the company was given the engineering plans at the time of quoting and whether the quote in question was based on those plans or not.”
30 Mrs Partridge submitted that the conclusion which the referee reached as to when the engineering plans became available to the builder was not supported by logically probative evidence. In developing that submission Mrs Partridge referred to evidence to indicate that the builder was aware of the engineering requirements when the job was costed but the very same difficulty confronts the plaintiffs in arguing this ground as confronted them with the first ground. To advance the submission that there was logically probative evidence that would have supported a contrary conclusion does not mean that the referee was compelled to reach that conclusion where there was other evidence which she was entitled to accept which supported the builder’s case, and in this regard the evidence supporting the builder’s case included the oral evidence of the builder which it was for the referee to assess as the tribunal of fact.
31 This second ground of challenge cannot succeed.
32 (iii) On p 6 of the reasons of the referee, in addressing the claim for the rear verandah frame, the referee concluded:
“Having no specific quotation to rely on for this minor work, which would involve no materials and less than one hour’s work, I allow thirty dollars ($30).”
33 The second plaintiff submitted that this conclusion was not based upon logically probative evidence.
34 The second plaintiff drew attention to the evidence introduced through the statutory declaration of a builder, Colin Hutchinson, and that declaration and the attached quotation for rectification work dealt with the rear verandah work identifying a need to remove the existing gutter and downpipe, to trim all the rafters in a straight line and to install new fascia and then re-install the existing gutter and downpipe. Provision was made also for repainting. There was no quotation for or expert evidence as to the cost of only trimming the rafters. The referee determined that the claim for the installation of the fascia was not established so that the referee was left in the position of having no evidence either as to the cost of the trimming which the referee found ought to be provided for nor as to the time such trimming would take. It was of course for the plaintiffs to prove their case. How much of the figure of $692 advanced on behalf of the plaintiffs as being the cost of all the work contemplated by Mr Hutchinson in relation to the back verandah related merely to trimming the rafters was not addressed in the plaintiffs’ evidence and I am quite unable to conclude that in arriving at the allowance made by the referee there was a denial of natural justice to the plaintiffs. This ground of challenge fails.
35 (iv) On p 4 of the referee’s reasons the referee was addressing a complaint about the width of the external stairs. The referee found that the stairs were defective in certain respects and said:
“The issue of stair width is perhaps not as straightforward in view of the level of disagreement between the experts. Having considered their views and those of the parties and in taking what I believe to be a common sense approach, I find the difference between the plans and that actually constructed to be insignificant.
Clearly the plans are not clear. If they were, the experts themselves would not be in dispute .”
36 It was submitted by the second plaintiff that that finding was not based on logically probative evidence.
37 I cannot accept that submission. The referee went on after the passage underlined to say:
“There are no details anywhere to be seen on the plans as to the specific width of the stairs. If a slide rule is applied, the stairs appear to represent a measurement of between 900 and about 1000 mm. There is no way, in view of the lack of detail in the plans, to ascertain exact measurements.”
38 Consideration of the plans themselves justifies what the referee said.
39 Having considered what the second plaintiff had to say about this ground of challenge and Mr Sexton’s contrary submissions, I am satisfied that the referee was entitled to reach the conclusion expressed in the passage here challenged. This submission made by Mrs Partridge fails.
40 (v) The next submission to the effect that the referee’s decision was not based upon logically probative evidence, concerns the driveway. I propose to set out the referee’s reasons concerning the driveway in their entirety:
“The claimant alleges that the driveway is not constructed according to correct levels and that the box drain is in the wrong position. No expert evidence or evidence of any kind has been produced by the claimant in support of this claim. There is nothing to suggest that the driveway is defective in any way.
The claimant has tendered a quotation from Mr Col Hutchinson to the value of $4956.00 to remove the driveway and reconstruct.
The claimants have carriage of their own claim. For it to succeed they must establish the claim of [sic] the balance of probabilities.
The claimants have produced no evidence, this item must fail.”
41 Mrs Partridge has submitted that the above conclusion involved a denial of natural justice because it was not supported by probative evidence. I shall treat that submission broadly so as to regard it as a submission that the referee ignored logically probative evidence supporting the plaintiffs’ grievance.
42 There was evidence which calls for consideration in respect of this submission, consisting of the contract and specifications, the plan, photographs, the report from Craig’s Building Advisory Services Pty Limited, and a quotation from C. Hutchinson Constructions.
43 It is clear from a consideration of the contract documents that the builder undertook to construct a driveway and to construct a box gutter drain. According to the plan of the architect the box gutter drain was to be immediately below the balcony.
44 The Craig report concludes on p 14:
“The driveway box drain has also been positioned in a different location than shown on plan. The plan shows the drain alignment with the front edge of the north east corner balcony. However the drain has been positioned immediately adjacent to the garage roller door.”
45 There was a photo, poorly reproduced on p 15 of the exhibit before this Court, that shows the drain just outside the garage shutter.
46 There was a quotation from the builder, C.H. Hutchinson Constructions, dated 21 October 1997, quoting $4956 “to rectify driveway levels as shown on stamped plans” . This price, it would seem from the detail of the quotation, contemplated the cost of removing the existing driveway, altering levels and relaying concrete.
47 The referee was not correct in stating in her reasons (set out above) that there was no evidence of any kind ” and that the claimants “have produced no evidence ” in relation to this head of claim. That is clear having regard to the evidence reviewed above. If the architect’s plan was relied upon to evidence the level of the driveway then what it showed was a slope down towards the front of the house to the door edge of the balcony but from that point on that the driveway was to be level until it entered the garage. Moreover, looking at the Craig report, it identifies that the drain was positioned other than where suggested on that plan. So it is that there was evidence indicating a departure from the requirements of the contract.
48 However it was submitted by both Mr Sexton and Mrs Gilmour that the errors of expression in the referee’s reasons to which I have above referred did not establish a denial of natural justice. I was referred to the decision of McInerney J in Health Care Complaints Commission v McDonald (unreported, 4 November 1997). That was a case involving challenge to a finding of the Nurses’ Tribunal. His Honour there referred to Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 which involved consideration of the role of judicial review from a delegate’s assessment under s 22AA of the Immigration Act , and said at 10-11:49 It was submitted that this Court should adopt the same approach as was identified in Liang, Pozzolanic and McDonald in reviewing the reasons for decision as expressed by the referee in this case. I consider there is merit in that submission and that it is not for this Court to disturb the referee’s decision merely for loose expression. In the passage above set out from the referee’s reasons, the referee was correct to state that it was for the plaintiffs to prove their claim “on the balance of probabilities” and it seems to me, having regard to the way the claim was presented before the referee, it was open to the referee to reject the claim concerning the drain and the driveway. I have concluded that I should accept the submissions advanced by Mr Sexton and Mrs Gilmour to this effect, having regard to the following:
“The court set out the role of a reviewing court. I believe in principle that those comments apply to the task that befalls me in this case.
It was said that when a reviewing court is reviewing an administrative decision it should give the reasons for that decision a beneficial construction. The court referred with approval to Collector of Customs v Pozzolanic (1993) 43 FCR 280 where the Full Court of the Federal Court discussed the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language… nor with unhappy phrasing’ of the reasons of an administrative decision-maker. The court said (at 287):
‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’
The majority judges consisting of Brennan CJ, Toohey, McHugh and Gummow JJ went on to say (at 272):
‘These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.’”
(a) In their claim form in the proceedings in the Tribunal, the claim was identified as one directed to defective work. The referee’s notes (Exhibit A) at the outset record this as being the one issue raised by the plaintiffs. There was no complaint expressed in the form that the builder did not do the work as contemplated by the contract documents, and in particular no complaint was made in the claim that the builder departed from the requirements of the contract in relation to the location of the drain or the level of the driveway. The issues expressed in the claim concerned alleged defects in the manner in which the work was done, not whether the builder departed from stipulations of the contract in where it placed the drain or how it addressed the level of the driveway.(b) Section 31(1) of the Consumer Claims Tribunal Act required of the second defendant that it “make such orders, as in its opinion, will be fair and equitable”.
(c) The plaintiffs first complained of the placement of the drain in the course of hearing before the referee, some three years after the completion of the building work.
(d) The Craig report referred to the location of the drain but not to the driveway level. The Craig report did not address the cost of doing work again in strict accordance with the architect’s plans. Nor did the author of the report address either issue, that is either the drain location or the driveway level, in his evidence.
(e) The quotation from Hutchinson Constructions did not address the issue as to why the work subject to the quotation should be done. There was no break-up of the quotation for $4956, so the referee had no separate costing for the relocation of the drain alone. To determine that the slope of the driveway departed from the architect’s plan depended upon an interpretation of the plan. Certainly the plan appears to show the drive as sloping down towards the house to a point directly under the front of the verandah, and from that point being flat to the garage door, but there was no evidence to indicate any practical problems either with the driveway or the effectiveness of the drain where it had been located.
(f) The author of the quotation for the amount of $4956 gave no evidence before the referee. Section 23 of the statute provided for the manner of giving evidence. Either it was to be given orally on oath, or, if in writing, by statutory declaration. The quotation relied upon by the plaintiffs was not supported by statutory declaration.
50 With the above considerations in mind, it seems to me that it was open to the referee to determine that the plaintiffs had not satisfied her it was fair and equitable to order the builder to pay for the cost of the work covered by the quotation which was not proved as required by s 23.
51 Mrs Partridge submitted that the referee should have had a view as she requested the referee to do. A view would have assisted, it was submitted, in addressing any shortcomings in the plaintiffs’ case on this item.
52 In my opinion that submission should be rejected. Whilst a referee may hold a view, and this may be a legitimate way of informing a tribunal on an issue, an unwillingness to conduct a view in this case could not be regarded as a denial of natural justice. It must be borne in mind that the statute under which the referee was operating is concerned to afford expeditious and inexpensive process for the resolution of disputes. This was quite a lengthy hearing and it does not seem to me that natural justice demanded of this referee that she attend upon a view to address shortcomings in the presentation of the plaintiffs’ case. In any event, a view would not have addressed the absence of evidence as to how the drain and the driveway as located and constructed were achieving their respective purposes.
53 Having reflected on the competing submissions concerning the driveway and the drain, I am not persuaded that the referee’s decision in relation to these items can be regarded as a denial of natural justice and the plaintiffs’ submissions in point accordingly fail.
54 (vi) Passing to the next matter raised by Mrs Partridge, it was submitted that the referee was in error in the manner in which she addressed the issue of “bowed windows” on p 6 of her report. It was submitted that there was error in the interpretation of Mr Hutchinson’s evidence and the significance to be attributed to it in respect of timber shrinkage.
55 The ultimate finding on the windows was expressed on p 7 in the following passage:
“Having considered the evidence in respect of the windows I cannot be satisfied on the balance of probabilities that the respondent did not allow 10 mm for wood shrinkage as he said he did. Whilst I think that a builder clearly is responsible for shrinkage and must make an appropriate allowance for same he cannot be held liable should the wood shrink more than what one would reasonably expect. On the evidence I find that this is what has occurred in the present circumstances.
In any event, on the evidence, all the windows still operate freely and the bowing complained of is apparently less than one centimetre. This is hardly significant and does not warrant the rectification work suggested by the claimant.”
56 Those findings were expressed after a review of the evidence and in my opinion it simply cannot be said that in her approach to this issue the referee denied natural justice to the plaintiffs. This submission fails.
57 The next submission advanced by Mrs Partridge was that she was prevented from presenting relevant evidence. There can be no question but that if a party in proceedings before a tribunal is not afforded a reasonable opportunity to present his or her case that will amount to a denial of natural justice. The requirement of fairness demands that such an opportunity be given, together with an adequate opportunity to respond to the case presented in opposition.
58 Mrs Partridge drew attention to what occurred before the referee on 25 August 1997 when the second defendant was called upon, and referred in particular to what was recorded on p 4 of the referee’s notes, Exhibit A. The second defendant was critical of Mrs Partridge and informed the referee that a barrister had described Mrs Partridge as the most difficult she had ever dealt with and that she was vexatious and unfair. This prompted Mrs Partridge to write to the referee on 26 October 1997 (Annexure (d) to the affidavit of 1 May 1998) and in that letter paragraph 6 was in these terms:
“Ms Olsson said that I was the most difficult she’d dealt with. Contradictory evidence - reasons for the decision - commercial tribunal - 15.5.1997 - p 13, p 6, p 10, p 6 - all Ms Olsson’s witnesses were discredited.”
59 Mrs Partridge argued that she was prevented from taking the referee through that “contradictory evidence” before the hearing concluded. The earlier proceedings before the Commercial Tribunal were proceedings between Mrs Partridge and Building Services Corporation for which latter body Ms Olsson had appeared in those earlier proceedings. That tribunal made findings favourable to Mrs Partridge and was critical of Mr Murdoch of the second defendant. It is clear that the tribunal in those earlier proceedings had made an adverse finding as to Mr Murdoch’s credibility.
60 The findings of the earlier tribunal in relation to the credibility of Mr Murdoch were not binding on the referee in the later proceedings and Mrs Gilmour is correct in the submission made that the material identified in para 6 of the letter of 26 October and above set out was not relevant to the proceedings before the referee. The credibility of Mrs Partridge on the one hand and of Mr Murdoch on the other hand was not to be determined by findings made by the tribunal earlier constituted for the purposes of the proceedings taken by Mrs Partridge against the Building Services Corporation.
61 In determining what happened before the referee on the hearing on this matter, I am largely dependent upon a consideration of the notes of the referee (Exhibit A). I am quite unable to determine, having considered those notes, that the plaintiffs were not given the opportunity to present relevant evidence. Indeed, I note that at the conclusion of the hearing on 27 October 1997, according to the referee’s notes, the referee told Mrs Partridge that she needed to sit down and reflect on the claim and “put it in some order” . The referee suggested, according to her notes, that “perhaps w [Mr Hutchinson] will assist her” .
62 The submission I have identified in para 57 has not been made good.
63 Mrs Partridge next submitted that the referee refused to allow relevant evidence. Mrs Partridge complained that Mr Hutchinson had been required to wait outside the room where the proceedings were being conducted on 27 October 1997. The complaint continued that he was not allowed to be present whilst Mr Murdoch gave evidence and addressed matter in Mr Hutchinson’s report. If it be the fact that the referee required Mr Hutchinson to remain outside the hearing room, I do not consider that that could be regarded as amounting to a denial of natural justice having regard to the relevant provisions of the Consumer Claims Tribunals Act: see in particular ss 17 and 22. In any event it is clear that before proceedings concluded on 27 October Mr Hutchinson was in the hearing room. There is a note at p 9 of the referee’s notes, Exhibit A:
“C [Mrs Partridge] now has her witness [Mr Hutchinson] in the room.”
64 When, as is indicated on p 10, the time allocated for the hearing on 27 October was exhausted, it was then that the referee suggested, according to the notes I reviewed when considering the last ground argued by Mrs Partridge, that Mrs Partridge should reflect upon her case before the next hearing date appointed and call in aid Mr Hutchinson if need be.
65 I am not persuaded that there was any denial of natural justice by the referee in relation to Mr Hutchinson’s involvement in this matter. This ground of challenge therefore fails.
66 Mrs Partridge next submitted that the referee gave “no weight to estoppels” . Mrs Partridge argued that the second defendant was estopped from making a claim for extras in association with the work required by the engineer’s drawings because of correspondence that had passed between the parties, and in particular the account from the second defendant entitled “Reconciliation” and dated 11 July 1994 and a further exchange of letters, being the letter from Mrs Partridge to the second defendant of 20 March 1995 and the response of 27 February 1997. Mrs Partridge argued that the stated balance outstanding defined in the “Reconciliation” document of 11 July 1994 was paid and on 10 March 1995 Mrs Partridge wrote to the second defendant denying any indebtedness to it but claiming to be owed the sum of $388.11. That sum of money was paid to the plaintiffs by the second defendant under cover of 27 February 1997.
67 In these circumstances Mrs Partridge maintained that it was not open to the second defendant to pursue the claim for extras which was the subject of the counter claim before the referee.
68 The arguments which the plaintiffs based upon the exchange of correspondence reviewed might well have found favour with the referee but the exchange of correspondence and the payment ultimately made by the second defendant could not be regarded as giving rise to an estoppel.
69 The referee dealt with the substance of the submission now under consideration on p 9 of her reasons:
“The respondent company says that it has never waived its right to payment of the monies, although in attempts to settle the matter (without prejudice) it has offered a reduction of the amounts owing. The respondent says that the claimants have never agreed to accept any of the offers so made.
The respondent company says that it paid the claimants the $388.11 owed in good faith because the contract was a bill of quantities and they wanted to do the right thing. The respondent says that it did not claim the monies previously as they did not realise that a claim could be lodged through the Building Disputes Tribunal without the need of legal fees. The respondent says that with the other stresses associated with this building job, the monies owed for the footings was not a high priority and may indeed not have been actively sought had the claimants not lodged with the present claim, which the respondent regards as vexatious.”
70 It is plain from the decision of the referee that the considerations he addressed in the above paragraphs involved her rejection of the arguments against the plaintiffs based upon the reconciliation account and the subsequent correspondence. Whilst the referee could well have arrived at a contrary decision on this point, the decision reached was not one which could be regarded as involving a denial of natural justice.
71 Mrs Partridge next submitted that the decision reached by the referee was so unreasonable that no reasonable tribunal of fact could have reached such a decision.
72 This submission cannot succeed.
73 It seems to me that there was evidence upon which the referee could arrive at the decision which she reached. It does not avail the plaintiffs, having regard to the nature of proceedings in this Court, to be able to point to evidence which warranted a contrary conclusion. I have earlier stated the relevant principles which govern the proceedings on this summons.
74 Mrs Partridge next submitted that the referee failed to follow s 31(2)(f) and s 31(3)(a) of the Consumer Claims Tribunals Act .
75 I referred earlier to the requirement imposed upon a tribunal by s 31(1) to make orders which in its opinion are fair and equitable. Section 31(2) provides, so far as is relevant to this submission:76 Section 31(3)(a) provides:
“(2) Without limiting subsection (1), when a tribunal is considering whether or not to make an order or orders under section 30, the following factors are relevant, so far as they are material to the particular circumstances of the case:
………….
(f) the conduct of the parties to the claim in relation to similar transactions to which any of them has been a party.”
“Without limiting subsection (1), when a tribunal is considering whether or not to make an order or orders under section 30, it is appropriate for the tribunal to take into account, so far as material to the particular circumstances of the case:
(a) any code of practice for fair dealing prescribed under Part 7 of the Fair Trading Act 1987”
77 Mrs Partridge submitted that the referee did not heed the conduct of the parties in the earlier appeal proceedings between Mrs Partridge as appellant and Building Services Corporation as respondent. I referred to these proceedings earlier in paras 59-60 of this judgment. Those proceedings did not enliven s 31(2)(f), and in any event the findings of that tribunal earlier constituted could not properly be used to assist the referee in deciding whether he should believe Mrs Partridge or Mr Murdoch. This was something the referee had to determine for herself.
78 As to Pt 7 of the Fair Trading Act , it was submitted that it required the referee to regard the engineer’s drawings as part of the contract on which the price was quoted. Certainly the engineer’s plans became part of the contract, but the issue was whether the quotation was based upon those plans at the time the quotation was provided. I do not accept the submission that Pt 7 prevented the referee from treating the costs of compliance with the engineer’s drawings as an extra in respect of which the second defendant could claim against the plaintiffs. The referee had to consider all the evidence placed before her to determine whether the counter claim had been established.
79 In my opinion there is nothing in s 31(2)(f) and/or s 31(3)(a) which leads to the conclusion that in her approach to this matter the referee denied the plaintiffs natural justice.
80 Mrs Partridge next submitted that the evidence presented by the second defendant was given undue weight and that relevant evidence was ignored. In making this submission Mrs Partridge focussed in particular on that part of the referee’s decision in which the external stairs issue was addressed. Mrs Partridge submitted that too much weight was given to the evidence of Victor Topic and Rodney Douglas. The evidence from these sources was by way of statutory declaration. The statutory declaration from Mr Topic referred to his twenty years experience on which he based the opinions he expressed. However, Mr Douglas was silent as to his qualifications and experience in his declaration and Mrs Partridge submitted his declaration ought to have been disregarded.
81 The referee reviewed the evidence on the issue of the external stairs in some detail at pp 2-4 of the reasons for the decision reached. That she mentioned the declaration of Rodney Douglas in her review does not mean that the referee gave his evidence undue weight. What weight the referee gave to the evidence placed before her was, of course, for her to determine, and, for reasons earlier expressed, a submission to the effect that undue weight was given to the evidence put forward by the second defendant cannot avail the plaintiffs here because of the limited nature of the relief available under s 12 of the Consumer Claims Tribunals Act .
82 This submission also fails.
83 Finally, it was submitted that the referee had no jurisdiction to entertain the second defendant’s counterclaim for the extra cost of the footings.
84 Mrs Partridge relied upon s 10(3) of the Consumer Claims Tribunals Act which provides as follows:
“(3) A tribunal does not have jurisdiction in respect of a consumer claim (not being a claim referred to in subsection (3A)) if:
(a) in the case of a consumer claim relating to goods or services that have been supplied to or for the claimant, the date on which the supply was made or, if made in instalments, the date on which the supply was last made,
(b) in the case of a consumer claim relating to goods or services which are required under a contract to be supplied to or for the claimant on or by a specified date or within a specified period but which have not been so supplied, the date on or by which the supply was required under the contract to be made, or
(c) in the case of a consumer claim relating to:
(i) a contract for the supply of goods or services to which neither paragraph (a) or (b) applies, or
(ii) a collateral contract,
the date on which the contract was entered into,
was more than 3 years before the date on which the claim was lodged in accordance with section 13 of this Act or section 13 of the repealed Act.”
85 Since the work was completed by December 1993 it was submitted that time for the making of a claim by the second defendant expired in December 1996. Alternatively, the extra cost of the foundations was first raised in writing as being a variation on 28 June 1994 and if that be the date from which time began to run against the second defendant, the time for pursuing a claim expired in June 1997. It was not until after the plaintiffs lodged their claim on 2 July 1997 that the counterclaim was pursued.
86 Mr Sexton conceded that had the second defendant wanted to institute proceedings by way of claim for the extra cost of the footings it could have done so by lodging a claim under the Consumer Claims Tribunals Act 1987 . Had it done so, it would seem that the limitation period under s 10(3) would be relevant. However, the second defendant did not lodge any such claim.
87 This submission advanced by Mrs Partridge warrants attention to the framework of the Act. There is no provision to which I have been referred which is directed at the raising of a cross claim or a counterclaim. However, what the statute does contemplate is that a tribunal constituted under the Act can have regard to what is considered fair and equitable in making any orders on a claim brought by a consumer. Circumstances may warrant the making of an order that requires the person who has brought the claim before the tribunal to make a payment to the person against whom the claim has been brought. I refer in this regard to s 31(1) and to s 30(2), and I now set out those provisions. Section 31(1) provides:88 Section 30(2) provides:
“31.(1) When making an order or orders under section 30, a tribunal must make such orders as, in its opinion, will be fair and equitable to all the parties to the claim.”
“In determining a consumer claim wholly or partly in favour of a respondent to the claim, a tribunal may make such one or more of the following orders as it considers appropriate:
(a) an order dismissing the claim or a part of the claim,
(b) an order that requires the claimant to pay to the respondent a specified sum of money ,
(c) an order that requires the claimant to return to the respondent specified goods which are in the possession or under the control of the claimant, whether the property in the goods has passed or not.”
89 It seems to me, having regard to the way the relevant provisions of the statute have been expressed, that s 10(3) did not prevent the referee from making the order which was made concerning the claim for extras. That order was made in dealing with the plaintiffs’ claim which was instituted by the filing in the prescribed form of a claim form on 2 July 1997. That claim was not the subject of any challenge to the Tribunal’s jurisdiction under s 10(3). Once that claim was before the tribunal, s 31(1) required of the referee that orders be made such as were in the opinion of the referee fair and equitable, and s 30(2)(b) gave the referee jurisdiction to make an order, in determining the plaintiffs’ claim, that the plaintiffs pay a specified sum of money to the second defendant. Indeed, it is clear from s 30(2) that if a claim lodged with the tribunal fails the tribunal may nevertheless not only make an order dismissing that claim but also make an order that requires the claimant to pay a specified sum of money to the respondent.
90 Accordingly, I am of the opinion that the referee did have jurisdiction to make the order which was made, requiring the plaintiffs to pay to the second defendant the sum specified in the referee’s decision.
91 Mrs Partridge regarded the referee as being biased. That underlies a number of the submissions urged upon this Court. It is difficult to appreciate precisely what happened during the course of what was a relatively lengthy hearing before the referee. For obvious reasons this Court has no transcript. However, I have been asked to have regard to the referee’s notes. They are extensive notes and they were taken on the various hearing dates, 25 August 1997, 22 September 1997, 27 October 1997 and 24 November 1997. The original notes are handwritten but a typescript has been provided and the typescript exceeds twelve pages. I have considered those notes and they do not give rise in my mind to any concern that the referee may have been other than fair and even-handed in her approach to the task she faced.
92 The notes indicate that there were exchanges between Mrs Partridge and the referee. For instance, on 25 August 1997 the referee has recorded (and this appears on the typed version at the foot of p 3):93 Then later on p 5 of the typescript, there is recorded:
“I point out to [the plaintiff] that time was allowed on this occasion so that she could complete evidence, it is not good enough to not be ready. I say this is a great inconvenience to [the second defendant] [The plaintiff] says this is abuse. I say to [the second defendant] Do you see me abusing [the plaintiff] - they say no…”
94 In the middle of p 7 there is recorded the following:
“[the plaintiff] is difficult to control
Told me I ‘abused her’ when I simply asked her to ensure that she has her evidence in order as it is an inconvenience to [the second defendant] and the Tribunal
I referred to her as ‘madam’ and she said ‘see, there you go again’. At another time she said ‘I see you have great animosity towards me.’
I explained that I tried to be fair to all parties and this was what she objected to the names that [the second defendant] referred to her as.
I said ‘well you said I abused you, I take exception to that’
[The plaintiff] says ‘I don’t think I said that!’
I asked [the second defendant] what was said and they confirmed that [the plaintiff] accused me of abusing her…”
95 Then on p 9 of the typescript the following appears:
“I asked [the plaintiff] if she had a problem with the manner in which I conducted these proceedings? No, she says. Are you sure? Yes I am. I stressed AGAIN that I am trying to be fair to both sides…”
“[The plaintiff] began to start her evidence again
I pointed out she had 4 hours to give her evidence
The opportunity now was for [the plaintiff] to answer the claim…”
96 If the referee’s notes invite the inference, as in the above extracts they may, that the referee became irritated during the hearing with Mrs Partridge that could not of itself warrant a conclusion that the referee was biased: see, for instance, the dicta of Meagher JA in Galea v Galea (1990) 19 NSWLR 263 at 283-284.
97 In Galea Kirby A-CJ, as he then was, acknowledged that concern about the efficient conduct of proceedings may warrant intervention by a tribunal: see the judgment at 279.
98 There are indications in the referee’s notes of an endeavour to be even-handed. For instance at the conclusion of the notes for 27 October 1997 (p 10 of the typescript) the following appears:99 Then on 24 November 1997 it is recorded that Mrs Partridge wanted to amend her claim as foreshadowed in her letter of 4 November 1997. The second defendant objected to the proposed amendments but the amendments were allowed. The typescript of the referee’s notes records:
“I said we really need to stop now. [the plaintiff] needs to sit down and reflect on the claim and may be put it in some order. Perhaps [the plaintiffs’ witness] will assist her. I said it looks like we need another hearing, I am sorry.
I asked [the second defendant] to wait in the room while [the plaintiff] packed up her things, as I did not wish to be left in the room with one party.”100 Ultimately the test concerning bias in a tribunal is that expressed in Webb v The Queen (1993-94) 181 CLR 41. In their joint judgment in that case Mason CJ and McHugh J said:
“[The plaintiff] wants to amend claim
letter on file
has been forwarded to [second defendant] also
[second defendant] has objection
I say I will allow the amendment as the issues (apart from driveway) have all been referred to previously
[plaintiff] invited to give evidence.”
“When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case (Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Reg v Watson; Ex parte Armstrong (1976) 136 CLR 248, at pp 261-262, 264, 267; Re Judge Leckie; Ex parte Felman (1977) 52 ALJR 155 at p 158; 18 ALR 93, at pp 97-98; Re Lusink, Ex parte Shaw (1980) 55 ALJR 12, at pp 14, 16; 32 ALR 47 at pp 50-51, 54; Livesey v NSW Bar Association (1983) 151 CLR 288, at pp 293-294, 300; Re JRL; Ex parte CJL (1986) 161 CLR 342, at pp 349, 251, 359, 368, 371; Vakauta v Kelly (1989) 167 CLR 568, at pp 575, 584; Grassby v The Queen (1989) 168 CLR 1 at p 20). The Court has applied the same test to a Commissioner of the Australian Industrial Relations Commission (Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179, at p 182; 119 ALR 206, at p 210) and to a member of the Australian Broadcasting Tribunal (Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at pp 87, 92, 102). The Court has specifically rejected the real likelihood of bias test (Reg v Watson (1976) 136 CLR at pp 261-262). The principle behind the reasonable apprehension or suspicion test is that it is of ‘fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’ (R v Sussex Justices, Ex parte Mc Carthy [1924] 1 KB 256 at p 259, per Lord Hewart CJ; Re JRL; Ex parte CJL (1986) 161 CLR at pp 351-352).”
101 Applying that test, and having regard to the behaviour of the referee, particularly as reflected in the notes which were taken during the hearing, it does not seem to me that fair-minded people would reasonably apprehend or suspect that the referee had prejudged or might prejudge the case.
102 The plaintiffs have failed to establish any basis for the intervention of this Court under s 12 of the Consumer Claims Tribunals Act .
103 Accordingly the summons is dismissed.
104 This leaves the question of costs.
105 The parties were invited to address me on costs. The second defendant through Mr Sexton submitted that in the event that the summons was dismissed the plaintiffs should be ordered to pay its costs. Mrs Partridge did not contend to the contrary. It seems to me since the plaintiffs have failed to obtain the relief sought on the summons by which they brought the second defendant here they should be ordered to pay the second defendant’s costs of the proceedings before this Court. I propose to make an order to that effect.
106 Mrs Gilmour submitted that the plaintiffs should also be ordered to pay the costs of the Minister for Fair Trading arising from the intervention in this matter. The plaintiffs did not nominate the Minister as a party in these proceedings; rather the Minister intervened pursuant to s 44 of the Consumer Claims Tribunals Act . This the Minister was plainly entitled to do, but the question arises as to whether it is just that the plaintiffs should be ordered to pay the Minister’s costs in the circumstances of this case.
107 As the hearing has been conducted the submissions advanced on behalf of the Minister have been in sympathy with those advanced on behalf of the second defendant. There has been no conflict between the second defendant and the Minister in the manner in which the relief sought by the plaintiffs on their summons has been opposed.
108 I was however asked to consider four affidavits, only in the event that I came to the conclusion that the plaintiffs’ summons should be dismissed. After I reached that conclusion I turned to consider the affidavits to which my attention was invited. Those affidavits were the following:
(a) affidavit of Paul Murdoch sworn 20 April 1998;(b) affidavit of Paul Murdoch sworn 29 June 1998;
(c) affidavit of Susan Murdoch sworn 29 June 1998;
(d) affidavit of Susan Murdoch sworn 6 November 1998.
109 With the exception of the first of those affidavits which I have identified, the remaining three affidavits were prepared by the Crown Solicitor as the solicitor for the Minister. The thrust of the affidavits, if this can be so shortly summarised, is that the deponents contended that the referee had given both the plaintiffs and the second defendant a fair hearing.
110 Having regard to the nature of the complaints made by the plaintiffs, it was submitted by Mrs Gilmour that it was appropriate for those affidavits to be prepared by the Crown Solicitor and for this Court to have the benefit of representation on behalf of the Minister.
111 Having regard to the nature of the complaints made by the plaintiffs, it was submitted by Mrs Gilmour that it was appropriate for those affidavits to be prepared by the Crown Solicitor and for this Court to have the benefit of representation on behalf of the Minister. Whilst there is merit in this submission, it was no doubt apparent to the Minister that the second defendant was resisting the relief sought in the summons, and indeed Paul Murdoch’s affidavit of 20 April 1998 was prepared by the solicitor for the second defendant. On the hearing before this Court the second defendant was represented by very experienced counsel and no doubt appropriate inquiry of the second defendant’s solicitors before the hearing would have revealed that this was going to be the case. It seems to me, having reflected on the competing submissions and all the circumstances of this case, that the costs of the Minister ought not to be visited upon the plaintiffs.
112 In these circumstances I do not propose to make the costs order sought by Mrs Gilmour.
113 The formal orders of the Court then are as follows:
1. The summons is dismissed:2. I order the plaintiffs to pay the second defendant’s costs of the proceedings in this Court;
3. The application that the plaintiffs pay the costs of the intervener is refused.
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