Smith v Trust Company of Australia Ltd (RLD) [2007] NSWADTAP 18
[2007] NSWADTAP 18
•13 April 2007
Appeal Panel - Internal
CITATION: Smith v Trust Company of Australia Ltd (RLD) [2007] NSWADTAP 18 PARTIES: APPELLANT
Jennifer Therese Smith t/as Flames Grill & Carvery
RESPONDENT
Trust Company of Australia LimitedFILE NUMBER: 069067 HEARING DATES: 21 February 2007 SUBMISSIONS CLOSED: 23 March 2007
DATE OF DECISION:
13 April 2007BEFORE: Chesterman M - ADCJ (Deputy President); Fox R - Judicial Member; Weule B - Non Judicial Member CATCHWORDS: leave to extend to the merits MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 065052 DATE OF DECISION UNDER APPEAL: 10/04/2006 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997 CASES CITED: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456REPRESENTATION: APPELLANT
RESPONDENT
In person
J Ratanatray, barristerORDERS: 1. Leave is granted for the appeal to extend to the merits of the decision of the Tribunal dated 4 October 2006.; 2. That decision of the Tribunal is set aside.; 3. The matter is to be heard by the Tribunal on a date or dates to be fixed at a directions hearing of the Tribunal, which is listed for 12 noon on 19 April 2007.; 4. The Appellant is to pay the Respondent’s costs, assessed on a party/party basis, of appearing at the hearing of the Tribunal on 4 October 2006 and of this appeal.
The circumstances of this appeal
1 This appeal arises out of the dismissal of the original Application which had been listed for hearing on 4 October 2006. The Appellant, who was the Applicant, failed to appear on the hearing day. The Application was for an order that the Applicant be granted re-entry to a shopping mall shop from which she traded as ‘Flames Grill and Carvery’, or failing that, for damages.
2 The Applicant represented herself both in the initial Application, and before the Appeal Panel. Mr Ratanatray appeared for the Respondent Trust Company of Australia on both occasions.
3 The appeal hearing took place on 21 February 2007. Subsequently, a transcript of the proceedings on 4 October 2006 was obtained and made available to the parties. Pursuant to directions given at the appeal hearing, each of them then filed written submissions.
4 It is common ground that the Appellant failed to attend at the hearing of her application when it was listed for hearing before Judicial Member Higgins on 4 October 2006. This resulted in a dismissal of the application, with reasons given ex tempore. Leave was granted for written submissions on costs to be filed, this issue to be resolved ‘on the papers’.
5 The transcript of the hearing shows that, after the matter was first called, a short adjournment was granted in the hope that the Appellant might arrive. While the expedient of trying to contact the Appellant by telephone was contemplated, it appears not to have been adopted by the Tribunal. The transcript records a suggestion by Mr Ratanatray that he might ask his instructing solicitors to try to contact her, but does not make it clear whether they did so.
6 In its ex tempore reasons for dismissing the application on the ground of the Appellant’s non-appearance, the Tribunal recorded a finding that she had had ample notice of the date fixed for hearing the application. It suggested that its power to dismiss the application might stem from s. 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). This empowers the Tribunal to dismiss any proceedings that it considers to be ‘frivolous or vexatious or otherwise misconceived or lacking in substance’. In responding to submissions from Mr Ratanatray, however, the Tribunal stated clearly that it made no findings on the substance of the application and that it based its decision only on the Appellant’s non-appearance.
7 At the hearing of the appeal on 21 February 2007, the Appellant testified as to the reasons why she did not attend at the 4 October 2006 hearing. Mr Ratanatray raised no objection to her doing so. She said that at a directions hearing before Judicial Member Molloy on 17 August 2006 she inadvertently noted the hearing date as 5 October, and that she arrived at the Tribunal on that day ready to prosecute the matter.
8 The Appellant’s brother, who was at the directions hearing, was also at the hearing before us. He confirmed that he too had written the date down as 5 October. Both he and the Appellant said that several dates had been discussed and that they both wrote down a date which turned out to be the wrong one.
9 Mr Ratanatray was not able to assist with evidence about what transpired at the directions hearing. In accordance with the normal practice of the Tribunal, the directions hearing was not recorded, so no transcript was available. Mr Molloy’s notes on the Tribunal file give no indication of the contents of any discussion about the day on which the case should be heard. They simply and only.indicate that 4 October 2006 was fixed as the hearing date and that it was to be a one-day hearing.
10 Mr Ratanatray did not cross-examine the Appellant or her brother or otherwise challenge their account of what happened at the directions hearing.
11 The Appellant’s submissions to us laid stress on the fact that she had attended personally at five of the six directions hearings, and that she had attended the other one by telephone. She claimed that she was denied procedural fairness because the Judicial Member conducting the hearing did not attempt to contact her by telephone to seek to establish why she had not appeared.
12 Mr Ratanatray’s submissions included the following contentions: (a) that the Tribunal’s decision to dismiss the application was within the Tribunal’s powers by virtue of the broad provision in s. 73(1) of the ADT Act that it ‘may, subject to the Act and the rules of the Tribunal, determine its own procedure’; (b) that this decision did not deny the Appellant procedural fairness because, as she herself pointed out, she had attended all the relevant directions hearings (in person and by telephone) and had therefore been fully on notice of all directions given, including the direction fixing the date of the hearing; and (c) that a decision on our part to allow the appeal and permit the Appellant to pursue her application for relief would open a gateway of delay for unscrupulous litigants.
Our conclusions
13 In view especially of the corroboration of the Appellant’s evidence by her brother and the absence of any challenge to this evidence by the Respondent, we find that the reason why the Appellant did not attend on 4 October 2006 was that she made a genuine and understandable mistake about the date fixed for the hearing.
14 In order to explain what in our view follows from this finding, it is useful to set out the following provisions of the ADT Act relating to internal appeals:-
- 113 Right to appeal against appealable decisions of the Tribunal
(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.
(2) An appeal under this Part:
- (a) may be made on any question of law, and
(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision….
(1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
- (a) any relevant factual material,
(b) any applicable written or unwritten law.
(3) In determining any such appeal, the Appeal Panel may decide:
- (a) to affirm the decision, or
(b) to vary the decision, or
(c) to set aside the decision and make a decision in substitution for the decision it set aside.
15 In Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456, it was held by Spigelman CJ and Tobias JA in the Court of Appeal, overturning previous Tribunal decisions to the contrary, that an Appeal Panel may grant leave under s. 113(2)(b) for an appeal to extend to the merits without having first determined that an error of law exists or may exist in the decision under appeal.
16 The present appeal is unusual in so far as the Appeal Panel, without objection from the Respondent, received evidence, directly relating to the grounds of the decision under appeal, that had not been put before the maker of the decision. The Tribunal, in deciding on 4 October 2006 to dismiss the Appellant’s application on the ground of her non-appearance, was unaware of the reason why she had not appeared. We agree with Mr Ratanatray that its decision was within the scope of the powers conferred on the Tribunal by s. 73(1) of the ADT Act. But we are in the different position of having received evidence as to why the Appellant failed to appear, and we have made a finding based on that evidence.
17 In this situation, two further provisions within s. 73 of the ADT Act, to which we have not yet referred, are of particular relevance. Subsection (2) makes it clear that the Tribunal, in conducting its hearings, is at all times ‘subject to the rules of natural justice’. Subsection (4)(c) requires it ‘to take such measures as are reasonably practicable… to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings’.
18 A further matter of relevance is the fact that the Appellant does not now press for re-entry to the premises. The only relief that she seeks is money compensation. This means that any disadvantage occasioned to the Respondent by the delay in bringing this matter to trial can be adequately addressed by orders for interest and costs.
19 It is open to us to require the Appellant to pay to the Respondent the costs incurred by her failure to appear at the scheduled hearing. Under s. 88(1) of the ADT Act, the Tribunal may award costs if there are ‘special circumstances warranting an award of costs’. In Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60], Santow JA said: ‘Serious unfairness is not a prerequisite to determining that there are special circumstances [for the purposes of s. 88]; it is nonetheless a highly relevant consideration.’ The matter before us is a clear instance where it would be seriously unfair for the Respondent not to be given the costs thrown away by the failure of the Appellant to appear, despite the fact that this failure can be characterised as ‘innocent’. The same considerations apply to the costs of this appeal.
20 Taking these matters into account, the rulings that we believe to be both practicable and just are to the following effect:-
- 1. We should grant leave under s. 113(2)(b) of the ADT for this appeal to extend to consideration of the merits of the Tribunal’s decision to dismiss the application on the ground of the Appellant’s non-appearance.
2.Pursuant to our obligation under s. 115(1) to make the correct and preferable decision having regard to the material now before us, we should set aside the Tribunal’s decision and provide a further opportunity for the Appellant to present her case at a rescheduled hearing.
3. Since it was the Appellant’s error that has necessitated both this appeal and a rescheduled hearing, we should order her to pay the Respondent’s costs, assessed on a party/party basis, of appearing at the hearing on 4 October 2006 and of this appeal.
21 In conclusion, we would add three comments. First, this case demonstrates the importance of ensuring at directions hearings, particularly when self-represented parties are involved, that the date or dates fixed for the substantive hearing are made entirely clear to all parties and are duly noted by them. Secondly, consideration should be given to adopting a practice within the Registry of sending to all self-represented parties a written notice of any hearing date or dates that are fixed at a directions hearing. This could be done immediately after the directions hearing. Thirdly, consideration should be given to amending the ADT Act or the rules promulgated under the Act to provide that in a case such as the present the non-appearing party, instead of lodging an appeal, may apply to the Tribunal at first instance for an order setting aside the decision made by virtue of the non-appearance and permitting the case to proceed as originally intended, subject to the payment of costs as appropriate.
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