The Estate of the Late Daniel Beacom v Galvin (Appeal)
[2024] ACAT 56
•14 August 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THE ESTATE OF THE LATE DANIEL BEACOM v GALVIN (Appeal) [2024] ACAT 56
AA 4/2024 (XD 415/2023)
Catchwords: APPEAL – civil disputes – Australian Consumer Law – apprehended bias – leave to rely on additional evidence – whether limited privilege was not applied at the preliminary conference – whether the appellant was denied procedural fairness by the Original Tribunal – whether Original Tribunal’s treatment of parties at hearing gave rise to reasonable apprehension of bias – appeal dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 18, 23, 26, 34, 82
Australian Consumer Law (Cth) ss 60, 61, 62, 268
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 91(c)
Cases citedAmer v Eriksson [2019] ACAT 108
Charisteas v Charisteas [2021] HCA 29
Council of The Law Society of The Australian Capital Territory v LP 201920 (David Chen) (Appeal) [2021] ACAT 16
FZ v Commissioner for Children and Young People [2010] NSWSC 1144
Kaufhold v Huang & Anor (Appeal) [2021] ACAT 62
Kolodzeij v Ali& Anor [2021] ACAT 114
Krutsky v Commissioner for Social Housing [2023] ACAT 68
Mansour v Dangar [2017] ACAT 49
Medical Board of Australia v Adams [2023] WASCA 41
R v Davis & Anor; ex parte Curtis& Anor [1999] TASSC 22
Rawson Finances Pty Ltd v Commissioner ofTaxation [2013] FCAFC 26
Re JRL; Ex parte CJL (1986) 161 CLR 342
Roberts v Morgan & Anor (Appeal) [2017] ACAT 70
Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88
Vakauta v Kelly (1989) 167 CLR 568
Tribunal:Presidential Member J Lucy
Date of Orders: 14 August 2024
Date of Reasons for Decision: 14 August 2024
Date of Publication: 21 August 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 4/2024
BETWEEN:
THE ESTATE OF THE LATE DANIEL BEACOM
Appellant
AND:
MICHAEL PATRICK GALVIN
Respondent
APPEAL TRIBUNAL: Presidential Member J Lucy
DATE:14 August 2024
ORDER
The Tribunal orders that:
The appeal is dismissed.
………………………………..
Presidential Member J Lucy
REASONS FOR DECISION
Introduction
The estate of a homeowner challenges the Original Tribunal’s decision that the homeowner was not entitled to damages or to a refund of moneys paid under a contract with a fencing contractor, after the homeowner’s partner asked the contractor to stop work. The estate’s case before the Original Tribunal was that the contractor used poor quality materials with poor workmanship, took too long to progress the job and was aggressive towards the homeowner’s partner.
The Original Tribunal found that the estate had not proven any of its claims on the balance of probabilities.
The estate appealed on twelve grounds, including that the Original Tribunal did not allow its representative to put certain questions to the contractor at the hearing, this being a denial of procedural fairness.
I have found the procedural fairness ground to be established but have dismissed the other grounds. I gave the estate’s representative an opportunity to cross-examine the contractor at the appeal hearing, so as to cure the denial of procedural fairness at the original hearing. Having done so, I was not satisfied that the estate had established any entitlement to relief.
For these reasons, I dismissed the appeal.
Background
On 19 April 2022, the respondent, Mr Galvin, provided Mr Beacom with a quote for $18,207.80 for removing an old fence and constructing and painting a new fence at his property.
At the time, Mr Beacom was terminally ill and his partner, Larissa Kaput, was caring for him. Mr Galvin communicated with Ms Kaput about the quote and the work.
By a text message on 5 May 2024, Mr Galvin offered to start work on 16 May 2024.
Mr Galvin purchased timber for the job and had it delivered to Mr Beacom’s and Ms Kaput’s property.
On 1 June 2022, Mr Galvin was painting the timber in the garage at the property. He had not yet removed the old timber fence or commenced construction of the new one. He had, however, been paid a deposit for the work and some progress payments.
Ms Kaput went to see Mr Galvin whilst he was working in the garage and expressed concerns to Mr Galvin that his work was not progressing quickly enough and about the quality of the timber and the work. Mr Galvin and Ms Kaput then had a disagreement, the details of which are disputed. At the end of their interaction, after consulting Mr Beacom, Ms Kaput asked Mr Galvin to stop work. Mr Galvin left the property, leaving the timber behind.
On 2 June 2022, Ms Kaput sent Mr Galvin a letter, via email, stating that she had asked him to stop work on her property the day before because he was acting aggressively towards her. She stated in the letter:
… your body language became aggressive, you started swearing and marching backwards and forwards loading and unloading materials. Your demeanour further declined after I brought your attention to it. After discussing these concerns with Dan, we no longer felt safe having you on our property.
Ms Kaput requested in the letter that Mr Galvin repay her and Mr Beacom the amount of $4,187.79.
Mr Galvin did not respond to the letter.
Mr Beacom passed away in October 2022. Ms Kaput is an executor of his estate (the estate).
In April 2023, the estate commenced proceedings in the Tribunal seeking damages from Mr Galvin. In the application, it was claimed that Mr Galvin had breached the contract and had also breached the following guarantees under the Australian Consumer Law: s 60 (guarantee as to due care and skill), s 61 (guarantees as to fitness for a particular purpose etc) and s 62 (guarantee as to reasonable time for supply). The estate claimed $10,580.37 from Mr Galvin, being $10,814.29 plus interest of $494.08.
Ms Kaput described her encounter with Mr Galvin on 1 June 2022 as follows in her application to the Tribunal:
Mr Galvin began swearing at Ms Kaput and marching backwards and forwards loading and unloading materials between the garage and his car, including dropping and tossing multiple timber pieces carelessly. Mr Galvin asked Ms Kaput a number of times whether she him [sic] to continue with the project. On hearing this, Ms Kaput suspected that Mr Galvin did not actually want to continue. After going inside the house to discuss these concerns with Mr Beacom who was resting, Mr Beacom no longer felt safe having Mr Galvin on his property.
In the response to the application, Mr Galvin stated that Ms Kaput required him to apply two coats of paint instead of one, and that she insisted that the timber be bogged and sanded prior to construction of the fence, which was not on the quote. He stated that she did not know how to construct the fence herself but was instructing him on the way the work was to be done. He said that he had underestimated the amount of timber to be painted, which meant it was taking longer than he first thought. Mr Galvin explained that, after his disagreement with Ms Kaput:
… it became quite evident that she was more concerned with what she thought and her own opinion then reality. So I gave her an option, she could leave me alone and let work [sic] so I could finish the job or I would happily give her the materials and receipts and she would be free to employ one of the much cheaper options she kept mentioning were available to her.
She then claimed I was being violent and threatening and asked me to leave. So I did.
… No threats were made and I did what was asked regardless of her becoming extremely patronising and incitful [sic] in an attempt to get me to lose my temper and create a situation to her own advantage.
On 9 October 2023, a preliminary conference was held, attended in person by Ms Kaput and remotely by Mr Galvin. The estate’s appeal submissions stated that Ms Kaput had disclosed in the preliminary conference that she had sold some of the partly painted timber palings which Mr Galvin had left at her property at a greatly reduced value. According to the estate’s submissions, a member at that preliminary conference directed her to reduce the claim by the amount the estate had received for the timber which had been sold.
On 23 October 2023, Ms Kaput provided the Tribunal and Mr Galvin with an amended application. In the amended application, the estate sought $9,114.29 in damages and $815.24 in interest (making a total of $9,929.53). Mr Galvin was directed to provide the Tribunal and the estate with a response by 6 November 2023, and the estate was directed to tell the Tribunal by 13 November 2023 if it did not receive Mr Galvin’s material.
On 26 October 2023, a registrar gave Mr Galvin leave, by email copied to Ms Kaput, to attend the hearing remotely. Ms Kaput replied to the email stating that, at the preliminary conference, the member had directed Mr Galvin to appear in person at the hearing and stated that she wanted to present samples of Mr Galvin’s timber in the hearing and wanted him to be present.
The Tribunal did not respond to the matters raised in Ms Kaput’s email.
On 13 November 2023, Ms Kaput emailed the registry stating that she had not received Mr Galvin’s response.
On 20 November 2023, a registrar responded to Ms Kaput, copying in Mr Galvin, directing the parties to comply with the Tribunal’s orders.
A tribunal hearing was listed for 22 November 2023. Mr Galvin appeared by telephone. At that hearing, it became apparent that Mr Galvin had sent to the Tribunal documents on which he relied which he had not sent to Ms Kaput. The hearing was adjourned, with a direction requiring Mr Galvin to forward those documents to Ms Kaput.
On 4 December 2023, Mr Galvin’s application to appear in telephone at the hearing listed for 11 December 2023 was granted by a registrar.
On 11 December 2023, at the resumed hearing, Mr Galvin appeared by telephone. Ms Kaput brought samples of the timber Mr Galvin had used on her job to the Tribunal to demonstrate that it was of inferior quality. The Tribunal member asked Mr Galvin questions about that timber over the telephone.
On that day, the Tribunal (to which I will refer as the Original Tribunal) dismissed the appeal. The Original Tribunal provided its reasons for its decision on 3 January 2024.
The estate appealed from the Original Tribunal’s decision on 9 January 2024. The estate was granted an extension of time to appeal on 14 February 2024.
In his response to the appeal, Mr Galvin accepted that he had been paid $10,014.29 by Mr Beacom. However, he opposed the relief sought.
Appeal grounds
The estate identified the following as errors which were said to have affected the Tribunal’s decision:
Error 1 - Limited privilege not applied to the Conference;
Error 2 - Applicant [before the Original Tribunal] criticised for the respondent’s failures to serve documents;Error 3 - Respondent avoided ever appearing in person or by video conference;
Error 4 - The [Original Tribunal] did not address the obvious inconsistencies in the respondent’s evidence;
Error 5 - No advice to subpoena the Respondent and/or Applicant as witnesses;
Error 6 - No parties sworn in to obtain any witness testimony;
Error 7 - The [Original Tribunal] was inconsistent in not allowing – then partially allowing – then refusing to ask the Respondent questions;
Error 8 – [The Original Tribunal] allowed the Respondent to talk extensively and restate almost his entire written response, yet this was denied to the applicant’s representative;
Error 9 – [The Original Tribunal] drew an incorrect inference of fact that both parties had been “irritated” [on 1 June 2022 prior to their disagreement];
Error 10 - Two obvious errors of fact [although this ground is stated in the estate’s submissions to be one obvious error of fact];
Error 11 - The timber quality issue was omitted entirely from examination and “Reasons”;Error 12 - The [Original Tribunal] failed to recognise disrespect and the link with abusive behaviour.[1]
[1] Appellant’s submissions dated 13 April 2024, page 9
The appellant elaborated on each of these grounds in written submissions. Mr Galvin responded to the grounds and submissions in writing. Each party made oral submissions about each of the grounds at the hearing.
Nature of the appeal
An appeal tribunal may, as it considers appropriate, deal with an appeal as a new application or as a review of all or part of the Original Tribunal’s decision.[2] Generally, the appeal tribunal determines how it is going to deal with an appeal at the first directions hearing.[3]
[2] ACAT Act section 82(1)
[3] Mansour v Dangar [2017] ACAT 49 at [23]
The appeal tribunal in this case dealt with the appeal as a review of the Original Tribunal’s decision. At a directions hearing, the appellant was directed to provide the Tribunal and Mr Galvin with a list of errors in the decision of the Original Tribunal and Mr Galvin was directed to provide a response to that list of errors. At the hearing of the appeal, I confirmed with the parties that the appeal was being dealt with as a review of the Original Tribunal’s decision.
In Mansour v Dangar [2017] ACAT 49, Presidential Member Daniel (as she then was) summarised the distinguishing features of the two different approaches to an appeal as follows:
For a new hearing, established principles dictate that the hearing starts afresh, evidence is given again, and the appeal tribunal’s view on any question of fact or law is determinative of the issue. Any discretion to be exercised by the original tribunal is exercised anew by the appeal tribunal.
By contrast, for a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal’s findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal’s primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal is not at liberty to interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion. (Footnotes omitted)
I have adopted that approach to an appeal by way of rehearing in this case.
Leave to rely on additional evidence
The estate applied for leave to rely on evidence which was not before the Original Tribunal when it lodged its appeal documentation. Section 82(2) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides that an appeal tribunal may, if leave is granted, receive further evidence about questions of fact, either orally in a hearing, by written statement or in another way. Rule 91(c) of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (the ACAT Rules) provides that an appeal tribunal may, if leave is granted, receive further evidence about questions of fact, either orally or in a hearing, by written statement or in another way.
The proposed new evidence comprised:
(a)orders made by the Original Tribunal;
(b)email exchanges between Ms Kaput and the Tribunal before the hearing, expressing concerns about Mr Galvin being given leave to appear remotely and indicating that she had not received documents which Mr Galvin had been directed to provide to her and the Tribunal;
(c)a transcript of the hearing on 11 December 2023;
(d)an analysis of the transcript made by Ms Kaput indicating matters such as the number of opportunities given to Mr Galvin to respond compared to the number of times given to her; the number of times each of them was interrupted; the number of times the senior member apologised to Mr Galvin and the number of times he apologised to her; and the number of words spoken by Mr Galvin and by her;
(e)evidence as to the paint manufacturer’s recommendation to paint two to three coats;
(f)a copy of a personal safety intervention order made before the hearing, which does not concern Mr Galvin; and
(g)articles described by Ms Kaput as “References on disrespect and violence against Women.”
Items 1-3 above, being orders made by the Original Tribunal, correspondence with the Original Tribunal before the hearing and the transcript of the hearing, comprise material which was loosely “before” the Original Tribunal or (in the case of the transcript) which record what occurred before the Tribunal. I have decided to admit that material.
Item 4 (Ms Kaput’s analysis of the transcript) is in the nature of an aide memoire. I have accepted it on that basis.
The remaining items (5-7) comprise evidence which the estate could have, but did not, adduce before the Original Tribunal.
The overarching principle to be applied when considering whether to allow new evidence on appeal is whether that would be in the interests of justice.[4] Whilst it is not usually in the interests of justice to allow new evidence on appeal, in some cases it may be if there is an acceptable reason for the evidence not being brought at the original hearing.[5] A material consideration when deciding whether to give an appellant leave to rely on further evidence on an appeal conducted by way of a rehearing, is whether the evidence is likely to have affected the outcome of the decision made at first instance.[6]
[4] Kolodzeij v Ali & Anor [2021] ACAT 114 at [12](f); Amer v Eriksson [2019] ACAT 108 at [19]
[5] Amer v Eriksson [2019] ACAT 108 at [20]
[6] Krutsky v Commissioner for Social Housing [2023] ACAT 68 at [7]; Amer v Eriksson [2019] ACAT 108 at [20]
The estate has not provided an acceptable reason for not providing the material in Items 5 to 7 above to the Original Tribunal. That of itself provides a strong reason not to admit it.
It is also unlikely that that material could have made a difference to the result. The paint manufacturer’s recommendations are unlikely to have made a difference to the Tribunal’s finding as to the parties’ agreement as to how many coats of paint Mr Galvin would apply under their contract. The quotation, which the estate accepted, specifies that Mr Galvin would use 4 to 6 litres of paint to paint the fence. The Tribunal found that “[w]ith regard to the number of coats of paint, the wording of the accepted quote does not lead the Tribunal to conclude, on the balance of probabilities, that more than one coat, together with ‘touch-ups’, was agreed.”
The personal safety order, which was not made against Mr Galvin, is not probative of whether Mr Galvin behaved aggressively and could not reasonably have affected any material factual finding which the estate challenges.
The articles concerning violence against women are in the nature of opinion evidence, and the authors of the articles have not been called as witnesses. There is no reasonable possibility that those articles could have made a difference to the Original Tribunal’s finding about Mr Galvin’s demeanour or his conduct towards Ms Kaput.
For all of these reasons, it is not in the interests of justice to admit the material described in items 5 to 7 above. Leave to rely on that evidence is refused.
The estate filed an application for interim orders on the morning of the hearing, seeking leave to rely upon an expert report prepared by Steven Unthank, a carpenter, concerning the quality of the material selected by Mr Galvin to construct the fence.
I refused leave to rely upon that report at the hearing. Orders had been made by the Appeal Tribunal in a directions hearing, requiring the appellant to provide to the Tribunal and Mr Galvin a copy of any further evidence on which it proposed to rely by 13 March 2024. That time for compliance with that order was later extended to 13 April 2024. The appellant was given ample opportunity by those orders to obtain an expert report and to provide it to the Tribunal and Mr Galvin in accordance with the timetable. It would have been prejudicial to Mr Galvin to allow the appellant to rely upon an expert report produced on the day of the hearing.
Additionally, the expert report was fresh evidence which could have been obtained before the hearing before the Original Tribunal. It was not relevant to establishing that the Original Tribunal had made any errors on the material before it.
Ground 1: Limited privilege not applied at the preliminary conference
The first ground of appeal is that the member presiding at the preliminary conference directed Ms Kaput to reduce her claim by the amount she received for the timber when she sold it. As Ms Kaput had volunteered the information about selling the timber for a certain price at the preliminary conference, Ms Kaput said that this was a breach of privilege.
Section 34(3) of the ACAT Act provides that evidence of any words spoken at a preliminary conference must not be admitted in a proceeding under that Act. Accordingly, Ms Kaput’s account of what the member said at the preliminary hearing is not admissible.
That is sufficient to dispose of this ground. However, it should also be noted that the directions made by the member who presided at the preliminary conference were simply that the applicant file an amended application setting out the orders it seeks. There was no direction as to the content of that amended application and no reference to reducing the amount of the claim.
This ground is dismissed.
Ground 2: Appellant criticised for the respondent’s failure to serve documents
The second ground is that, on 22 November 2023, when the matter was first listed for hearing, the Tribunal member criticised Ms Kaput for failing to tell the Tribunal that she had not received the documents which Mr Galvin had not served on her.
In oral submissions made at the hearing of the appeal, Ms Kaput said that she felt a perceived bias because she had been criticised when the failure to respond was the fault of Mr Galvin.
Mr Galvin stated, in response to this ground, that he had accidentally copied in the wrong person to his response. The Tribunal member then adjourned the hearing to another date to give Ms Kaput sufficient time to review Mr Galvin’s documents.
There is no transcript of the hearing on 22 November 2023. At the appeal hearing, the parties provided different accounts of what occurred at that hearing. In the circumstances, there is insufficient evidence to conclude that there was any unfairness to Ms Kaput occasioned by the Tribunal member criticising her. Even if the Tribunal had criticised her unfairly, I could not conclude, on the material before me, that there was any apprehended bias (and a claim of apprehended bias is not, in any event, made in the estate’s written submissions in support of the ground).
This ground is dismissed.
Ground 3: Respondent avoided ever appearing in person or by video conference
The third appeal ground is that the respondent avoided ever appearing in person or by video conference. He appeared at the hearings via telephone.
Ms Kaput stated that she was disadvantaged by Mr Galvin not appearing in person, because the Tribunal was unable to see that he was comparatively much bigger than her (to show why she would feel fearful of him if he behaved aggressively). The appellant also stated that Mr Galvin could not see her physical evidence (pieces of timber which she brought to the hearing) and this caused both the member and Ms Kaput confusion when discussing the evidence.
Ms Kaput also stated at the appeal hearing that the registry did not respond to her emails objecting to Mr Galvin appearing remotely. She submitted that there was perceived bias in the Tribunal member saying that he wanted to be fair to Mr Galvin, when he was asking questions about the timber which Mr Galvin could not see, whereas the Tribunal did not acknowledge the unfairness to her.
In response, Mr Galvin stated that he had requested permission to appear by telephone as he was working in Jindabyne, and that permission had been granted. He also denied being a large man.
It appears that the tribunal granted Mr Galvin’s application to appear remotely without first hearing from Ms Kaput. However, Ms Kaput had an opportunity, at the hearing of 22 November 2023, to object to Mr Galvin appearing remotely at the adjourned hearing. As there is no transcript, it is not clear whether that occurred.
Ms Kaput said to the Tribunal member at the hearing on 11 December 2023 that she wanted to ask two questions. She then said:
One was Mr Galvin requested to appear via teleconference, but I can’t see him. I’ve bought [sic] timber today to show him and I told the registrar’s desk that, and the timber is with security.
Mr Galvin explained to the member that he was working at Jindabyne and the member stated that Mr Galvin was at liberty to appear by telephone. Ms Kaput did not formally object to Mr Galvin appearing by telephone or ask the Tribunal for an adjournment so that a hearing could be held with Mr Galvin appearing in person. She had an opportunity to make submissions opposing Mr Galvin appearing remotely but did not do so. That makes it very difficult for the estate to establish that it was denied procedural fairness.
I am not satisfied that the estate was materially disadvantaged by Mr Galvin not being present. Mr Galvin’s height may have affected whether Ms Kaput felt threatened by him. However, the relevant question was not whether she felt threatened, but whether his behaviour was such as to breach a guarantee under the Australian Consumer Law or to otherwise justify relief under that law. Mr Galvin’s height was not a factor which was rationally probative of the allegation that he was abusive.
Mr Galvin’s appearance by telephone meant that he could not see the timber which Ms Kaput brought to the hearing. Ms Kaput brought the timber in to demonstrate that it was of poor quality. The inability to see the timber was more likely to disadvantage Mr Galvin than the estate. Ms Kaput made submissions about the quality of the timber, which the Tribunal member was able to see, and Mr Galvin responded.
It may be accepted that Mr Galvin’s inability to see the timber made it more difficult to conduct the hearing, and that it may have caused Ms Kaput some degree of confusion. However, I am not satisfied that it adversely affected Ms Kaput’s opportunity to be heard as to the quality of the timber.
There was no breach of procedural fairness by the time of the hearing on 11 December 2023 in the Tribunal permitting Mr Galvin to appear by telephone. If I am wrong about that, any breach was not material to the outcome of the hearing, as there is no reasonable possibility that Mr Galvin appearing in person would have changed the outcome.
This ground is dismissed.
Ground 4: The Original Tribunal did not address obvious inconsistencies in the respondent’s evidence
The estate contends that the Original Tribunal did not note a number of inconsistencies in Mr Galvin’s evidence, nor did it question Mr Galvin about them. Ms Kaput said at the appeal hearing that these were matters affecting Mr Galvin’s credibility and indicating that he was an unreliable witness and that the Original Tribunal should have identified them.
The examples given by Ms Kaput, for the estate, of inconsistencies in Mr Galvin’s evidence are:
(a)Mr Galvin stated that the carpenter he recommended to Ms Kaput to build a pergola was not his colleague, but called him “my carpenter”;
(b)Mr Galvin’s mathematics do not add up, in that his invoice for the deposit and the 15% progress payment total $5,200, whereas he quoted $5,547 for materials, and the amount charged does not match his invoices;
(c)Mr Galvin’s evidence was that he did not make any money out of the job and that he had underpriced the job by $10,000, whereas other contractors quoted less than Mr Galvin;
(d)Mr Galvin’s response to the amended application differed from his response to the original application, in that he deleted some paragraphs and added some words;
(e)Inconsistencies found within the estate’s timeline of events, including that Mr Galvin’s text message of 26 May 2022 indicates that he had accepted a 15% progress payment from the estate (instead of the 30% requested by him) and that he would discuss a further 15% progress payment in a week.
In response to my question at the appeal hearing as to whether Ms Kaput had drawn these matters to the Original Tribunal’s attention or made any submissions about them, Ms Kaput said that she had not. She said that it was her expectation that the Original Tribunal would notice things that did not match.
The Original Tribunal was obliged to weigh the evidence. However, it was not required to analyse alleged inconsistencies in the respondent’s evidence which the estate had not expressly identified.
None of the matters raised by the estate under this ground are matters which the Original Tribunal was required to determine in order to determine the estate’s claim. None of the matters was material to the decision and it is not plain, in any event, that any of these matters adversely affected Mr Galvin’s credibility. Taking them in turn:
(a)There may have been an inconsistency in the way Mr Galvin referred to the carpenter he had recommended to build Mr Beacom’s pergola, but this allegation was not put to him. It would not have been procedurally fair for the Tribunal to draw an adverse inference about this, without giving Mr Galvin an opportunity to respond. In any event, Mr Galvin’s relationship with the carpenter he recommended was not directly relevant to the issues the Original Tribunal was required to decide.
(b)The payments made by the estate to Mr Galvin did not necessarily relate to materials and Mr Galvin’s position was that he still needed to buy more materials. The figures do not, of themselves, indicate any lack of reliability on Mr Galvin’s part.
(c)The circumstance that other contractors completed the job for a lower price does not necessarily mean that Mr Galvin did not make any money out of the job, or that he did not genuinely consider that he had underpriced it.
(d)Mr Galvin was entitled to provide an amended response to the amended application, and the changes he made to his original response do not indicate any intention to mislead the Tribunal.
(e)The estate’s timeline does not, of itself, establish any inconsistencies in Mr Galvin’s evidence. Mr Galvin maintained in his evidence that the parties had agreed on a 30% progress payment, then he reluctantly accepted Ms Kaput’s offer to pay two instalments of 15%. The documentary evidence as to the amount agreed by the parties for progress payments and the criteria for when such payments are due is unsatisfactory.
I am not persuaded that the Original Tribunal made any error by not identifying the alleged inconsistencies in Mr Galvin’s evidence, when no submissions were made to it about them, or by not making any adverse findings about Mr Galvin’s credibility.
This ground is dismissed.
Ground 5: No advice to subpoena respondent and/or applicant as witnesses; Ground 6: No parties sworn in to obtain any witness testimony; Ground 7: The Original Tribunal was inconsistent in not allowing – then partially allowing – then refusing to ask the respondent questions
Grounds 5 to 7 are related, so are conveniently dealt with together. The estate contends that the Original Tribunal erred by not advising it to subpoena Mr Galvin to appear as a witness and by not administering an oath or an affirmation to Ms Kaput and Mr Galvin. The estate also contends that the senior member should have allowed Ms Kaput to cross examine Mr Galvin or should have put certain questions to him on her behalf which it refused to ask him.
Relevant context
These grounds arise out of an exchange between the Original Tribunal, Ms Kaput and Mr Galvin which occurred after Ms Kaput had given some evidence and made some submissions, and after Mr Galvin had done the same. The Original Tribunal member told the parties that he would allow them each a couple of minutes to quickly sum up their submissions. Ms Kaput then said to the Tribunal member: “Okay. So we don’t get an opportunity to cross-examine?” The following exchange then occurred:
[Original Tribunal]: Well, you can – are there any particular questions you want to ask?
MS KAPUT: Yes. There’s lots.
[Original Tribunal]: Lots?
MR GALVIN: Are we in court?
[Original Tribunal]: It’s up to – it’s really up to Mr Galvin whether he wants to be a witness in this matter or not. If you wanted to call him as a witness, you should have actually subpoenaed him and required him to be in attendance.
MS KAPUT: I was ---
[Original Tribunal]: So, look, in the circumstances, no. I don’t think it’s appropriate to do a cross-examination. But it’s – I can allow a certain level of informality. So if you have questions – you know, if you want to put something to Mr Galvin, I’ll allow it, but not in a cross-examination sense. Does that make sense, what I’m saying? If there’s a couple of things you wanted to clarify, I’ll allow you to put that. If you put that submissions to me, perhaps, and Mr Galvin can then decide whether he wishes to answer it or not. …
Ms Kaput asked the senior member constituting the Original Tribunal to put certain questions to Mr Galvin. The senior member put a number of those questions to Mr Galvin and rejected other proposed questions.
Some of the questions Ms Kaput asked the Original Tribunal to put to Mr Galvin related to the estate’s claim that he behaved aggressively towards her.
The estate’s amended application to the tribunal did not expressly make a claim for relief in relation to Mr Galvin’s aggressive behaviour. Under the heading “orders sought,” the amended application stated that the estate sought damages from contract breach and breach of the guarantees in sections 60 to 62 of the Australian Consumer Law. At the beginning of the hearing, however, Ms Kaput made the following submission:
So what I didn’t write is – and I did write it in the email to Mr Galvin on 2 June – but what I didn’t write previously is clarity around the major problem that we had with the service. So a service has a problem when it creates an unsafe situation, which is the situation I say that we were in, and it has either one serious problem or several smaller problems, and when a service has a major problem, a consumer can choose to cancel the contract and get a refund.
So that’s essentially the thing that happened, and the way that it happened was Mr Galvin was acting aggressively towards me.
Ms Kaput described the incident with Mr Galvin in this way at the original hearing:
So I was mentioning how Mr Galvin was throwing the timber into the car, taking it back out, tossing it in the garage. Then he escalated. So from irritation to outright anger. And he is not speaking that way today. I agree. He was swearing at me. For example, he used the F word. And when I brought his attention to the fact – I said to him, ‘Why are you swearing at me? Don’t swear at me?’
When I said that, instead of deescalating it, it made it worse, to the point that he was in a rage, his face was red, he was agitatedly and quickly walking between the car and the garage, tossing timber, in a rage, angry, and it was scary, and when he started swearing and we were in the garage, I noticed I was alone.
It then emerged that Mr Galvin’s telephone connection with the tribunal had malfunctioned, and he had missed some of what Ms Kaput had said. The senior member constituting the Original Tribunal summarised what Ms Kaput had said and asked him to respond. Mr Galvin then gave his account of the incident, stating that he was “irritated at the fact that we kept going over the same things over and over again,” that he “was in a highly stressed out situation when I’d just been informed that the last three and a half to four weeks… that I had worked for her, had been an entire total waste of time and I hadn’t made any money out of it.” He stated:
So yes, I was pretty irritated at that point, but I didn’t abuse her. I never went to a threatening manner and made her fear for her safety. That’s all hearsay. I’m getting extremely irritated about the fact that it keeps coming back to these types of things.
When Mr Galvin had finished, Ms Kaput asked the senior member to ask Mr Galvin if he swore at her. The senior member responded that Mr Galvin just said he didn’t. The following exchange then occurred:
[Original Tribunal]: Mr Galvin just said – and Ms Kaput, you heard what he said – I’ve made a note that he said he acknowledges that he was pretty irritated, but he did not threaten or abuse her. Now, that’s the answer to your question.
MS KAPUT: I see. He did not physically abuse me, but he’s
[Original Tribunal]: No, no, abuse – swearing is a form of abuse. So that is the answer to your question. You may not agree with it…
MS KAPUT: Okay.
[Original Tribunal]: … but that it the answer to your question. Abuse doesn’t have to be just physical abuse. Verbal abuse. It covers verbal abuse as well, and he’s effectively saying he did not threaten or swear at you. Now, you may not agree with that, but that’s what he has just said. So you don’t need to ask him again. He’s already said it.
The senior member agreed to ask Mr Galvin whether he was marching backwards and forwards tossing timber into the car, and he agreed that he was. He said that that occurred after Ms Kaput said she did not want him to continue on the project.
The senior member gave oral reasons at the hearing. He said the following about Ms Kaput’s allegation that Mr Galvin had acted in a threatening way towards her:
[Original Tribunal]: … Finally, I look to the contention that the applicant is entitled to damages because the respondent’s conduct made her concerned about her and her partner’s safety. I’ve listened carefully to the views that have been put by either side and I acknowledge that both parties felt that they had legitimate concerns. But in the first instance I need to be satisfied that the respondent did in fact behave in a threatening manner, and based on the evidence available to me, and the fact that it’s essentially one person’s word against another, I’m unable to conclude that either is right or wrong. That leaves me in the situation where I’m unable to conclude, on the balance of probabilities, that the behaviour was in fact threatening and justification for ceasing the contract.
Based on all of the above reasons, the application is dismissed.
The estate then requested written reasons, which the Original Tribunal provided. Those reasons were expressed differently from the oral reasons given at hearing, but the estate made no complaint about that. In its written reasons, the Original Tribunal said the following:
The Tribunal finally notes the applicant’s statement that the respondent’s conduct made her apprehensive. Based on the evidence available, the Tribunal is unable to conclude, on the balance of probabilities, that the respondent’s demeanour was such that it would justify an award of damages under the contract.
Based on all of the above reasons, the application is dismissed.
Consideration of grounds 5-7
The Original Tribunal’s comment to Ms Kaput that she should have subpoenaed Mr Galvin if she wanted to call him as a witness was misguided. Mr Galvin had voluntarily appeared at the hearing (by telephone) and had given oral evidence. He was not Ms Kaput’s witness. Ms Kaput wanted to challenge his evidence and question him, as the opposing party. She was not required to subpoena him in order to ask him questions.
The Original Tribunal was not required to swear in Mr Galvin or Ms Kaput before hearing their evidence. It was entitled to decide its own procedure and to inform itself in any way it considered appropriate in the circumstances.[7] The oral evidence given by Mr Galvin and Ms Kaput at the hearing, whilst not sworn, was nevertheless evidence before the Original Tribunal. There is no suggestion that it did not consider that evidence.
[7] ACAT Act ss 23(1), 26
For these reasons, Grounds 5 and 6 are dismissed.
As to Ground 7, the Original Tribunal was required to provide Ms Kaput with procedural fairness when considering her request to cross examine Mr Galvin.[8] A failure to allow a party to cross examine a witness may, in some circumstances, constitute a denial of procedural fairness.[9] However, the content of the requirements of procedural fairness varies according to the circumstances of the case, the nature of the inquiry, the legislation under which the decision-maker is acting and the subject matter being dealt with.[10] Procedural fairness does not always require a tribunal to provide a party with an opportunity to cross examine a witness.
[8] ACAT Act s 7(b)
[9] See, for example, Medical Board of Australia v Adams [2023] WASCA 41 at [89]-[90]; FZ v Commissioner for Children and Young People [2010] NSWSC 1144 at [51]; Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 at [73]
[10] Medical Board of Australia v Adams [2023] WASCA 41 at [89]; FZ v Commissioner for Children and Young People [2010] NSWSC 1144 at [29]
In Roberts v Morgan & Anor (Appeal) [2017] ACAT 70, Presidential Member Daniel (as she then was) observed:
[27] The process of hearing adopted by the Tribunal, whereby witnesses of the facts were not required to be accountable for their statements either by cross-examination by the other party or by questioning by the Tribunal, was not unusual. This process is often adopted, without contention, when there are no relevant facts in dispute. In other small claims jurisdictions, hearings involving contested facts are routinely undertaken on the basis of written witness statements and documents, with no cross-examination of witnesses. In such jurisdictions, the manner in which the hearing is to be conducted is known to the participants in advance, and there is facility for the parties to seek that evidence be given orally, or that there be cross-examination of a witness or witnesses, where the interests of justice require.
[28] It cannot be said that a ‘fair hearing’ requires that in all cases, witnesses in relation to contested facts must be made available for cross-examination. While procedural fairness requires that a party have a fair opportunity to present their case, this does not always include being given an opportunity to test the opposing case by cross-examination. The content of the ’fair hearing’ aspect of procedural fairness will vary depending upon the circumstances. For example, in some cases the evidence which a party wishes to rely upon in ’their’ case can only be adduced by cross-examination of an opposing witness. However the tribunal may decide that given the nature of the evidence or amount in dispute, or the delay or costs of hearing from that witness, the witness will not be required for cross-examination.
[29] In all cases, it is a requirement of procedural fairness that a party know in advance the procedure to be adopted for the hearing so that they may present their case effectively within those parameters. Where the procedure to be followed can vary, parties should be given adequate opportunity to submit that a different procedure would be preferable, be that for efficiency, timeliness, the interests of justice or any other relevant circumstance. Neither of those steps occurred in this case.
(footnotes omitted)
Here, the Original Tribunal was dealing with a dispute about the construction of a fence in its civil disputes jurisdiction under the ACAT Act. This is what might be described as a small claims jurisdiction, with a jurisdictional limit of $25,000.[11] The Tribunal, in exercising its functions, is required to seek to ensure that its procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice.[12] Those are relevant factors in the consideration of whether procedural fairness required the Original Tribunal to give the estate an opportunity to cross examine Mr Galvin.
[11] ACAT Act s 18
[12] ACAT Act s 7
In all of the circumstances, it was not necessary for the Original Tribunal to allow Ms Kaput to cross examine Mr Galvin, in order to provide her with procedural fairness, given that it adopted another procedure which allowed the estate to test Mr Galvin’s evidence. There may in some cases be reasons why cross examination is inappropriate, particularly when the person conducting the cross examination is self-represented. These include that it may increase the length and formality of the proceedings and it may accentuate conflict.[13] Cross-examination through a tribunal member may meet the requirements of procedural fairness in a particular case.[14] Caution needs to be exercised, however, when adopting that procedure, so as to avoid the appearance of bias and so as to ensure that the party who wishes to ask questions is not denied an adequate opportunity to test a witness’s evidence.
[13] R v Davis & Anor; ex parte Curtis& Anor [1999] TASSC 22 at [31]
[14] See R v Davis & Anor; ex parte Curtis& Anor [1999] TASSC 22 at [31]
The process adopted by the Original Tribunal, of asking Mr Galvin questions on Ms Kaput’s behalf, in principle allowed the estate an adequate opportunity to present its case. However, the Original Tribunal denied the estate procedural fairness when it refused to ask Mr Galvin whether he swore at Ms Kaput, notwithstanding her request that he do so. When the Original Tribunal stated that Mr Galvin had already answered that question, this assumed that Mr Galvin’s denial that he had abused Ms Kaput equated to a denial that he had sworn. The two are not necessarily the same, and Ms Kaput was entitled to test what Mr Galvin meant by his answer (that is, whether by saying he did not abuse Ms Kaput, he meant that he did not swear).
The issue of the nature of Mr Galvin’s conduct towards Ms Kaput was a relevant factor in the Tribunal’s decision-making, because the Original Tribunal stated that it needed to be satisfied that Mr Galvin did in fact behave in a threatening manner and that it was not so satisfied on the balance of probabilities. This was the basis upon which the Tribunal declined to award any damages under the contract in relation to Mr Galvin’s demeanour. Had Ms Kaput been allowed to test Mr Galvin’s evidence as she wished to, it is possible that the Original Tribunal could have been satisfied that Mr Galvin behaved in a threatening manner towards Ms Kaput.
For these reasons, I am satisfied that the Original Tribunal’s refusal to ask Mr Galvin whether he swore at Ms Kaput, or to allow Ms Kaput to ask that question, constituted a denial of procedural fairness which was material to its decision.
Ground 7 is established.
Ground 8: The Original Tribunal allowed Mr Galvin to talk extensively but did not allow the estate’s representative to do so
The estate contends that the Original Tribunal allowed Mr Galvin to talk extensively, whilst Ms Kaput waited assuming that she would be given a chance to respond, but she was not given that chance. At the appeal hearing, Ms Kaput said that she was twice not permitted by the member to correct something. Ms Kaput contended that this gave rise to a perceived bias.
Where a party is not given a reasonable opportunity to present that party’s case, that may amount to a denial of procedural fairness. Appearing to favour one party over the other may give rise to a reasonable apprehension of bias, which is also a form of procedural unfairness.
I have had regard to Ms Kaput’s analysis of the transcript, which states that Mr Galvin spoke 4,092 words for 55% of the time and she spoke 3,367 words for 45% of the time. I have also considered the statistics she compiled as to interruptions, opportunities to respond and apologies. I have not checked her figures.
The analysis provided by Ms Kaput gives a general indication of the amount of time afforded to each party and patterns in the way the Original Tribunal dealt with the parties. However, the critical legal question is whether the Original Tribunal denied Ms Kaput a reasonable opportunity to put the estate’s case by giving Mr Galvin more time to talk than it gave her, or by not allowing her to speak. That cannot be determined solely by reference to a statistical analysis.
I accept, as Ms Kaput submits, that Ms Kaput asked whether she could correct something in the middle of Mr Galvin’s evidence and submissions, and the Original Tribunal asked her to do so at the end.[15] I also accept that towards the end of the hearing, Ms Kaput asked again whether she could add something, and was told she could do that in the time she was to be given to sum up her submissions.[16] The Original Tribunal’s proposal that each party sum up their submissions was immediately overtaken by Ms Kaput’s question about having an opportunity to cross examine. Ms Kaput then asked questions of Mr Galvin, through the Original Tribunal member, and also gave some unprompted evidence about her altercation with Mr Galvin. After the Original Tribunal had finished putting questions to Mr Galvin, at the request of Ms Kaput, he did not ask Ms Kaput whether she had finished summing up her submissions. He may have assumed that what she wanted to say, she had already said.
[15] Transcript of proceeding, 11 December 2023, page 15, lines 19-24
[16] Transcript of proceeding, 11 December 2023, page 26, lines 36-45
The effective denial of an opportunity to make closing submissions might in some circumstances constitute a breach of procedural fairness, but the appellant needs to demonstrate that the error was material, that is, one which could make a difference to the outcome.[17] Ms Kaput indicated in her appeal submissions that she wanted to bring to the Original Tribunal’s attention the paint manufacturer’s recommendation to paint two or three coats. Ms Kaput did not identify anything else which she would have said, if given an opportunity. She said that the member not permitting her to speak “put her off.”
[17] See, for example, Kaufhold v Huang & Anor (Appeal) [2021] ACAT 62 at [15]-[16]; Council of The Law Society of The Australian Capital Territory v LP 201920 (David Chen) (Appeal) [2021] ACAT 16
On balance, I am not persuaded that the estate was denied procedural fairness by the Original Tribunal giving more time to Mr Galvin, or denying Ms Kaput an opportunity to speak. Ms Kaput was given an opportunity to make oral submissions first, as the estate’s representative, and did so. When she had nearly finished, the Original Tribunal asked her if there were any other matters she wished to raise.[18] Ms Kaput summarised the issues she had covered then said, “That’s a summary, yes. Thank you.”[19] The additional matter of the paint manufacturer’s recommendation was not relevant to the terms of the contract and there is no reasonable possibility that it would have made a difference to the outcome.
[18] Transcript of proceeding, 11 December 2023, page 8, lines 44-45
[19] Transcript of proceeding, 11 December 2023, page 9, lines 6-7
The estate has not persuaded me that a reasonable apprehension of bias arose from the way the Original Tribunal member conducted the hearing. The test is whether a fair-minded lay observer might reasonably apprehend that the Original Tribunal member might not have brought an impartial and unprejudiced mind to the resolution of the question that it was required to decide.[20] An apprehension of bias must be firmly established.[21]
[20] See, for example, Charisteas v Charisteas [2021] HCA 29, the Court at [11]
[21] Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568, Dawson J at 575, Toohey J at 585
A judge or tribunal member may descend into the arena and adopt the mantle of advocate through frequent interventions into proceedings, giving rise to a reasonable apprehension of bias.[22] Having reviewed the transcript, I am not satisfied that that occurred in this case.
[22] Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 at [219]
Accordingly, this ground is dismissed.
Ground 9: The Original Tribunal drew an incorrect inference of fact that both parties were “irritated” prior to their disagreement
The estate contends that the Original Tribunal made an error of fact when the member stated during the hearing, in reference to the events of 1 June 2022, that “it’s fair to say that both parties were a little bit irritated with each other, or were unhappy with each other in one respect or another.” The estate submits that Ms Kaput was not irritated, nor unhappy; it says she was concerned, worried and fearful.
The comments made by a tribunal member during a hearing are not factual findings. The Original Tribunal did not make any finding about whether Ms Kaput was irritated or unhappy in its oral or written reasons. That was not, in any event, material to the question of whether Mr Galvin breached the contract by acting in an intimidating or threatening way. The Original Tribunal did make a finding in its written reasons (which is not challenged) that Mr Galvin acknowledged that he was irritated on the occasion in question.
This ground is dismissed.
Ground 10: An obvious error of fact
The estate submits that the Original Tribunal made an obvious error of fact when it stated in its written reasons that Mr Galvin had stated that he never actually saw Mr Beacom.
It may be accepted that this was an error of fact. However, it was not a material error.[23] It could not reasonably have affected the outcome of the case.
[23] See Council of The Law Society of The Australian Capital Territory v LP 201920 (David Chen) (Appeal) [2021] ACAT 16
Accordingly, this ground is dismissed.
Ground 11: The timber quality issue was omitted entirely from the Original Tribunal’s examination and its reasons
The estate contended in its written appeal submissions that, at the hearing, the Original Tribunal “did not investigate the fact that the timber was not, in fact, timber” but was rather “reconstituted from small timber sections.” It submitted that one of the main issues concerning timber quality was that a portion of the timber had been reconstituted. In oral submissions at the appeal hearing, Ms Kaput said that the Original Tribunal had not sought an expert opinion about the quality of the timber.
Mr Galvin submitted in response that the timber he purchased was all real timber.
The estate’s submission on appeal that the timber is reconstituted is not a submission which was made before the Original Tribunal. At the hearing before the Original Tribunal, Ms Kaput described the timber she had brought to the hearing, saying there was “a big knot in this one” and “a piece missing on the side of this one and a knot there and there; and there’s a knot on the third one.”[24] Ms Kaput also told the Original Tribunal that on the day she had an altercation with Mr Galvin she “pointed out to him the knots, the missing pieces of timber, the discolouration, the fact that it was not up to the same quality as my neighbours’ fences and we wanted a high quality timber.”[25] The estate’s case at the original hearing was not that the timber was reconstituted from small timber sections.
[24] Transcript of proceeding, 11 December 2023, page 7, lines 1-3
[25] Transcript of proceeding, 11 December 2023, page 22, lines 42-45
To the extent that the estate contends that the Original Tribunal was required to “investigate” the quality of the timber, and to inquire as to whether it was reconstituted, that misconceives the tribunal’s function. The Original Tribunal’s role was to determine the estate’s claim, as that claim was advanced by the estate. It was not required to conduct an own-motion investigation into the quality of the timber to identify issues not raised by the parties. Nor was it required to engage an expert. That was the responsibility of the applicant.
The Original Tribunal did deal with the quality of the timber in its reasons, finding that the “quality of the timber was as agreed between the parties and specified in the original quote.”[26] There was no error in it failing to address in its reasons the question of whether the timber was reconstituted, when the estate had not submitted that that was the case and had not provided any evidence that the timber was reconstituted.
[26] Original Tribunal’s Reasons at [13]
Ms Kaput said that, had she been given an opportunity to do so, she would have asked Mr Galvin questions about the quality of the timber and whether it had been reconstituted. This is not an aspect of this ground, as the estate has advanced it, being an allegation that the Original Tribunal omitted the timber quality issue from its examination and reasons. The estate has already succeeded on Ground 7, concerning the lack of an opportunity to test Mr Galvin’s evidence.
This ground is dismissed.
Ground 12: The Original Tribunal failed to recognise disrespect and the link with abusive behaviour
The estate’s final ground is that the Original Tribunal failed to recognise disrespect and the link with abusive behaviour. That does not, in itself, identify any error of law, fact or discretion. Having regard to the estate’s written appeal submissions, this ground appears to be directed at the Original Tribunal’s finding about Mr Galvin’s behaviour on the day of the altercation, which was as follows:
That leaves me in the situation where I’m unable to conclude, on the balance of probabilities, that the behaviour was in fact threatening and justification for ceasing the contract.
The substance of this ground appears to be that the Original Tribunal erred in fact by not finding that Mr Galvin’s behaviour was threatening, and possibly (although this is not made plain) that it also erred in law in some way. The estate identified in its written submissions that the correct finding of fact should have been that Mr Galvin disrespected Ms Kaput, had been aggressive towards her, that she had been in an unsafe situation, and that this was a major service breach.
Mr Galvin denied, in his appeal submissions, that he had been abusive towards Ms Kaput and indicated that he found the allegation extremely insulting.
The estate seeks to rely, in support of this ground, on various websites in which disrespect towards women is connected with violence against women or abusive behaviour towards women.
I am not satisfied that the Original Tribunal erred in fact when concluding, on the evidence before it, that Mr Galvin did not engage in threatening behaviour towards Ms Kaput. The estate had the onus to establish that he engaged in that behaviour, if that was part of its case. The Original Tribunal was not required to have regard to articles associating disrespect towards women with abusive behaviour, especially in circumstances where the estate had not provided those articles to the Original Tribunal.
This ground is accordingly dismissed.
I note however that as the estate has succeeded on Ground 7, I have reconsidered the question of whether Mr Galvin engaged in threatening behaviour towards Ms Kaput, as discussed below.
Further opportunity to cross-examine
I indicated to the parties at the hearing of the appeal that I considered that the Original Tribunal may have denied the estate procedural fairness by not allowing Ms Kaput an opportunity to put some of the questions she wished to ask to Mr Galvin (either directly, or through the Original Tribunal).
The appeal tribunal may, if leave is granted, receive further evidence about questions of fact, either orally in a hearing, by written statement or in another way.[27] I granted Ms Kaput leave to put questions to Mr Galvin by way of cross examination, to obtain further oral evidence from him. This was so that the appeal tribunal could remedy any denial of procedural fairness which occurred before the Original Tribunal and decide the relevant factual questions for itself.
[27] ACAT Act s 82(2)(c)
Ms Kaput asked Mr Galvin questions on two main topics. The first topic concerned the quality of the timber he chose to construct the fence, and the second concerned his behaviour towards her on the day of their altercation.
Quality of the timber
Ms Kaput asked Mr Galvin at the appeal hearing whether the timber he chose was structural pine timber. He replied that treated pine is structural. In response to Ms Kaput’s questions, Mr Galvin said that the timber was laminated and agreed that there were multiple joins in the timber. However, he denied that it was fragile. Mr Galvin also said that the timber he had purchased was not being used as structural timber (even though it was structural timber) and that, at the time he stopped work, he had not yet purchased the rails.
The estate submitted that the timber selected was not fit for purpose.
I do not have any expert evidence before me which could satisfy me that the use of laminated timber when constructing a fence is contrary to accepted practice, that the timber chosen was not fit for purpose, or that it was not the timber contemplated by the contract. My reasons for rejecting the expert evidence the estate sought to adduce on the morning of the hearing are set out above. Mr Galvin has denied that the timber was not fit for purpose.
In these circumstances, I am not satisfied, on the balance of probabilities, that the timber selected by Mr Galvin was not fit for purpose. I also note that section 61 of the Australian Consumer Law, on which the estate relied, provides that there is a guarantee that any product resulting from the services provided by a supplier to a consumer must be reasonably fit for the disclosed purpose. In circumstances where the fence was not constructed at the time the contract was terminated, there is no “product” to which section 61 could apply.
Nature of Mr Galvin’s behaviour
Ms Kaput asked Mr Galvin questions about whether he swore during their altercation on 1 June 2022. He replied that he had said “For fuck’s sake” and then something to the effect that he could not believe he had come through all the hoops Ms Kaput had put up, only for her to spit it back in his face. Mr Galvin said that, although he had sworn, he did not swear at Ms Kaput.
I am satisfied from the evidence that Mr Galvin was angry during his interaction with Ms Kaput on 1 June 2022 and that he expressed his anger in a way which made Ms Kaput feel unsafe. This included swearing, marching back and forth unloading timber from his car (as he acknowledged), and tossing timber in the garage. I accept Ms Kaput’s evidence, given at the original hearing, that Mr Galvin’s face was red and that “he was agitatedly and quickly walking between the car and the garage, tossing timber, in a rage, angry.” Mr Galvin has acknowledged that he was irritated and expressed some of his anger in the way he spoke at the appeal hearing. Further, Ms Kaput described his behaviour in a letter written to Mr Galvin the day after the altercation occurred, stating: “your body language became aggressive, you started swearing and marching backwards and forwards loading and unloading materials.” That account is close to being contemporaneous with the events in question and I find it to be reliable.
The critical question is, however, whether Mr Galvin’s behaviour gave rise to any entitlement on the part of the estate to damages, or to a refund or the moneys it paid to Mr Galvin.
The estate’s case at the hearing was put on the basis that there was a “major problem with the service” because it had created an unsafe situation. Ms Kaput orally submitted that, in that case, a consumer could choose to cancel the contract and get a refund. The lack of safety which Ms Kaput identified as constituting a major problem with the service was Mr Galvin acting aggressively towards her.
Mr Galvin did not object to Ms Kaput raising this issue at the original hearing, and the Original Tribunal entertained this new claim.
The estate’s appeal submissions refer, in support of the contention that Mr Galvin’s conduct gave rise to a major problem with a service, to a web page within the Australian Competition and Consumer Commission (ACCC) website. The web page states that a service has a major problem when it creates an unsafe situation. The web page also states that when a service has a major problem, a consumer can choose to cancel the contract and get a refund. The context is that the web page is dealing with breaches of a consumer guarantee under the Australian Consumer Law.
The Australian Consumer Law does not use the expression “major problem.” It provides, in section 268, that a failure to comply with certain consumer guarantees applying to the supply of services is a “major failure” in some situations. These include that the supply of the services creates an unsafe situation.[28]
[28] Australian Consumer Law s 268(1)(e)
Before section 268 applies, it is necessary to identify a failure to comply with a guarantee that applies to the supply under Subdivision B of Division 1 of Part 3‑2 of the Australian Consumer Law. The guarantees in that subdivision upon which the estate relies are s 60 (guarantee as to due care and skill), s 61 (guarantees as to fitness for a particular purpose etc) and s 62 (guarantee as to reasonable time for supply). The estate has not established that Mr Galvin failed to comply with any of those guarantees.
Section 268(1)(e) of the Australian Consumer Law is directed to the situation where a failure to comply with one of those guarantees, such as a failure to exercise due care and skill when supplying services, creates an unsafe situation. That provision does not give rise to a right to terminate a contract if a contractor has created an unsafe situation without breaching a consumer guarantee.
The Original Tribunal also considered whether Mr Galvin’s conduct would justify an award of damages under the contract. The estate did not claim in its amended application to the Original Tribunal or in its submissions at the original hearing that Mr Galvin’s behaviour towards Ms Kaput on 1 June 2022 constituted a breach of contract justifying an award of damages. When Ms Kaput raised the issue of Mr Galvin’s aggressive conduct at the hearing (with no prior notice to Mr Galvin), she framed the issue in terms of Mr Beacom having a major problem with the service because it created an unsafe situation. She continued to frame the issue in this way on appeal.
It would be procedurally unfair for the Appeal Tribunal to consider whether Mr Galvin’s conduct in swearing, throwing pieces of timber and marching backwards and forwards breached the contract, when that was not the subject of submissions. If that issue were to be considered, it would be necessary to identify the contractual term which was alleged to have been breached. As there was no term in the quotation which would apply, that term would presumably be implied. The estate did not identify any contractual term which required Mr Beacom not to behave aggressively. Further issues which might have arisen, had that issue been explored, include whether any term which could be identified would be breached by Mr Galvin’s behaviour towards Ms Kaput, when both parties and the Original Tribunal proceeded on the basis that the contract was with Mr Beacom.
I also note that, while Mr Galvin’s behaviour made Ms Kaput feel unsafe, he did not threaten her physically or verbally. He left the property as she requested, albeit after tossing wood in an angry way.
For all of these reasons, I am not satisfied that the estate has established that it is entitled to any relief as a result of Mr Galvin’s behaviour towards Ms Kaput.
Accordingly, the appeal is dismissed.
………………………………..
Presidential Member J Lucy
| Dates of hearing: | 17 June 2024 | |
| Applicant: | Ms L Kaput, authorised representative | |
| Respondent: | In person | |
0
14
0