The Owners Strata Plan 72041 v Cosmopolitan Constructions Pty Ltd
[2011] NSWSC 937
•26 August 2011
Supreme Court
New South Wales
Medium Neutral Citation: The Owners Strata Plan 72041 v Cosmopolitan Constructions Pty Ltd [2011] NSWSC 937 Hearing dates: 12 August 2011 Decision date: 26 August 2011 Jurisdiction: Common Law Before: Harrison J Decision: The plaintiff has been denied procedural fairness
Catchwords: PROCEDURE - CTTT - where application dismissed by Tribunal due to non-attendance of parties at initial hearing - where non-attendance of applicant caused by its solicitor's mistake - where applicant's solicitor sought relisting and offered an explanation for his non-appearance - where Tribunal did not relist the proceedings or respond to the letter - whether denial of procedural fairness - s 28(5)(g) of the Consumer, Trader &Tenancy Tribunal Act 2001 - whether Tribunal had power or jurisdiction to dismiss application at first hearing, as opposed to a "final hearing" - s 28(5)(g) not limited - plaintiff otherwise denied procedural fairness Legislation Cited: Civil Procedure Act 2005
Consumer, Trader and Tenancy Tribunal Act 2001
Home Building Act 1989Cases Cited: Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
Hyman v Rose [1912] AC 623
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189Category: Principal judgment Parties: The Owners Strata Plan 72041 (Plaintiff)
Cosmopolitan Constructions Pty Ltd (First Defendant)
The Consumer Trader and Tenancy Tribunal (Second Defendant)Representation: I G Roberts (Plaintiff)
W A D Edwards (First Defendant)
Turnbull Bowles Lawyers (Plaintiff)
Byles Anjos Lawyers (First Defendant)
File Number(s): 2011/65479
Judgment
HIS HONOUR : The plaintiff is the registered proprietor of certain common property in a Strata Scheme in Castlefield Street, Bondi. It originally brought proceedings against the defendant in the Consumer, Trader and Tenancy Tribunal in respect of allegedly defective building work carried out for it by the defendant in breach of s 18B of the Home Building Act1989 . The proceedings were first listed before Tribunal Member Smith at 3.15pm on 3 February 2011 at the Tribunal's hearing rooms in Castlereagh Street, Sydney. Even though they had each received notice of this event from the Tribunal, neither the plaintiff nor the defendant appeared at that time. Member Smith dismissed the application in default of any appearance by the parties by 3.30pm and because no satisfactory explanation for the non-attendance had been given to the Tribunal.
It is in these circumstances, by its amended summons filed on 17 June 2011, that the plaintiff seeks, among other prayers, the following relevant relief:
"1. A declaration that the plaintiff was denied procedural fairness by the [Tribunal] in relation to the order made on 3 February 2011 ("the decision").
1A. A declaration that the [Tribunal] had no power to dismiss the application pursuant to s 28(5)(g) or at all.
2. An order in the nature of certiorari that the decision of the [Tribunal] made 3 February 2011 be quashed.
3. An order that the plaintiff be permitted to proceed with its proceedings in the [Tribunal]...".
For the reasons that follow, I consider that the plaintiff is entitled to the relief that it seeks.
Background
The facts are not in dispute. The plaintiff's solicitors were instructed to attend the Tribunal on its behalf on 3 February 2011. James Blake, a lawyer employed by the plaintiff, swore an affidavit in this Court. He said that the plaintiff had notified his firm of the 3 February 2011 date by email on 17 January 2011. By what is described as an "oversight", the listing details were incorrectly entered in the firm's court diary as 4 February 2011 at 3.15pm. Mr Blake's firm became aware of the error at approximately 3.30pm on 3 February 2011 when a representative of the plaintiff telephoned the firm to enquire about what had happened at the Tribunal. Upon realising that an error had been made, Mr Blake immediately left his office and went to the Tribunal. He arrived at approximately 3.45pm. He made his way to the nominated hearing room. There was nobody there. He then went to the Registry and asked to speak to Member Smith before whom the proceedings had been listed. Mr Blake told a woman behind the counter that he had been due to appear in the matter and explained what had happened. He informed her that he needed to have the matter relisted.
The woman to whom he spoke said the following words to Mr Blake:
"I'm really sorry but I am not allowed to call [Member Smith] under any circumstances. We have strict rules about parties talking to the members outside the time of the proceedings."
Mr Blake replied in the following terms:
"I don't want to get directions. I'm not trying to take advantage of the other side. I just want to explain what happened and have the matter relisted. Can you at least check what orders he has made?"
The woman replied:
"There is nothing on the computer. He must still have the file."
Mr Blake then asked:
"Well what can I do if no orders have been made and you won't let me speak to him? Can you call him and give him the message?"
The woman finally replied:
"No. I'm sorry. You should send through a fax addressed to the member explaining what happened and asking to have it relisted. That should be fine. I will make sure it gets to the file."
Mr Blake sent a fax to the Tribunal upon his return to the office that afternoon. It was relevantly as follows:
"This firm acts for the applicant in the above matter which was listed for directions at 3.15pm on Thursday 3 February 2011.
I was due to attend to represent the interests of the [plaintiff]. I failed to diary [ sic ] the listing correctly and was not in attendance at the directions before Member Smith.
I respectfully request the Registrar to relist the matter at the earliest available date and provide details of any orders made on this occasion. The applicant is prepared to press this matter without delay and set a timetable for the conduct of the proceedings.
Please accept my most sincere apologies both to the member and the Tribunal for my failure to appear at the directions hearing. The responsibility for this error rest [ sic ] solely with me and should not reflect on the applicants [ sic ] in any way.
A copy of this letter has been forwarded to the respondents [ sic ] with my apologies."
By letter dated 9 February 2011, the Tribunal wrote to the parties. The letter was not evidently in reply to Mr Blake's letter. It appears rather to be a letter of a formal nature, as its following terms appear to suggest:
"On 03-Feb-2011 the following orders were made:
1. The application is dismissed because:
There is no appearance of either party by 03.30pm. No satisfactory explanation for such non-attendance has been given to the Tribunal.
M Ermitano
for the Registrar
09/02/11 "
A footnote on that letter drew attention to s 49(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 ('the Act') and recited its terms. This section is referred to later in these reasons.
On 1 March 2011 Mr Blake's firm requested a transcript of the proceedings. The Tribunal responded by letter dated 9 March 2011 advising that as a result of neither party attending the hearing, the Tribunal Member "made no oral reference to the matter being dismissed".
The defendant had completed the building work for the plaintiff on or about 15 December 2003. The time for bringing a claim in respect of defective building work in alleged breach of s 18B is seven years from the date of practical completion. The proceedings in the Tribunal were commenced within that period but the plaintiff is unable to start again as more than seven years have now passed.
Plaintiff's case
The plaintiff's case was based on two propositions. First, in the events that occurred in this case, the dismissal of the proceedings amounted to a denial of procedural fairness. Secondly, the Tribunal had no power, and hence had no jurisdiction, to make an order dismissing the proceedings for want of appearance by either party in circumstances where the matter was not listed for a final hearing. Put another way, the plaintiff argued that the Tribunal could not dismiss the proceedings at an interlocutory hearing, such as the first return date for directions, or at any hearing not amounting to a final hearing.
These propositions are dealt with in turn.
Denial of procedural fairness
The plaintiff contended that it was denied procedural fairness because it was not given the opportunity to provide a satisfactory explanation for its non-attendance to the Tribunal. Mr Blake is said to have made numerous attempts to do so without success. Member Smith did not ask the parties, but in particular the plaintiff, to explain their non-attendance at the hearing before he dismissed the proceedings. The plaintiff contended that he should have done so and that his failure to do so means that there has been a denial of procedural fairness. This was said particularly to be so in circumstances where the stated reasons for dismissing the proceedings were that there had been no appearance by either party and that no satisfactory explanation for such non-attendance had been given to the Tribunal.
The plaintiff was quick to emphasise that an explanation for its non-attendance had been given. This was contained in the letter dated 3 February 2011 sent to the Tribunal by Mr Blake. I do not apprehend that the defendant takes any issue for its part with the proposition that the explanation given by the plaintiff's solicitor was satisfactory. Indeed, the defendant failed to attend the hearing as well. The plaintiff contends that it is difficult, if not impossible, to reconcile the contents of the 9 February 2011 letter from the Tribunal, which purports to record the orders that were made on 3 February 2011 before Mr Blake's letter of the same date had been received, and the date of the letter conveying the terms of those orders, which was clearly sent after Mr Blake's letter providing the explanation for his non-attendance would have been received by the Tribunal. In particular, when the Tribunal made orders at 3.30pm on 3 February 2011, it necessarily did so in the absence of any explanation from either party, for the obvious reason that the parties had failed to attend. The reference to "no satisfactory explanation" could not therefore have been a reference to an explanation given to the Tribunal before 3.30pm on 3 February 2011, which it considered to be unsatisfactory, because no explanation of any kind had by then been provided. The end result is that the Tribunal either made orders without hearing from the plaintiff as to why the proceedings should not be dismissed, or alternatively chose without explanation either to ignore the explanation that had been given by Mr Blake or else to reject it without explaining why it was unsatisfactory.
The defendant submitted that there had been no denial of procedural fairness at all. The bare fact that the plaintiff was not heard was said not to amount to a denial of procedural fairness by the Tribunal. What occurred was entirely the result of the conduct of the plaintiff's solicitors. Nothing that the Tribunal did or failed to do, as the decision-maker, denied procedural fairness to the plaintiff.
The defendant referred to the well-known passages from Al-Mehdawi v Secretary of State for the Home Department[1990] 1 AC 876 at 898 and 901, holding that there was no denial of natural justice where a party missed a hearing resulting in a dismissal of his application because his solicitors sent the relevant notice to the wrong address. The following passages from the speech of Lord Bridge should be noted:
"It has traditionally been thought that a tribunal which denies natural justice to one of the parties before it deprives itself of jurisdiction. Whether this view is correct or not, a breach of the rules of natural justice is certainly a sufficiently grave matter to entitle the party who complains of it to a remedy ex debito justitiae. But there are many familiar situations where one party to litigation will effectively lose the opportunity to have its case heard through the failure of his own legal advisers, but will be left with no remedy at all except against those legal advisers. I need only instance judgments signed in default, actions dismissed for want of a prosecution and claims which are not made within a fixed time limit which the tribunal has no power to extend. In each of these situations a litigant who wishes his case to be heard and who has fully instructed his solicitor to take the necessary steps may never in fact be heard because of his solicitor's neglect and through no fault of his own. But in any of these cases it would surely be fanciful to say that there had been a breach of the audi alteram partem rule. Again, take the case of a county court action where a litigant fails to appear at the hearing because his solicitor has neglected to inform him of the date and consequently judgment is given against him. He can at best invite the court in its discretion to set aside the judgment and it is likely to do so only on the terms that he should pay the costs thrown away. Yet, if it can be said that he has been denied natural justice, he ought in principle to be able to apply for certiorari to quash the judgment which, if he is personally blameless, should be granted as a matter of course.
These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events which the subject matter of the dispute raises issues of private law between citizens.
*****
Here again the argument proceeds from the assumed premise that where a party has been deprived of a hearing through his own solicitor's negligence there has been a breach of natural justice and a flaw in the decision making process. I have already sought to explain why I think this premise cannot be sustained. But I would add that, if once unfairness suffered by one party to a dispute in consequence of some failure by his own advisers in relation to the conduct of the relevant proceedings was admitted as a ground on which the High Court in the exercise of its supervisory jurisdiction over inferior tribunals could quash the relevant decision, I can discern no principle which could be invoked to distinguish between a "fundamental unfairness", which would justify the exercise of the jurisdiction, and a less than fundamental unfairness, which would not. Indeed, Sir Charles Fletcher-Cooke was constrained to rest on the proposition that, in the last analysis, it was all a matter of discretion and the court could be trusted only to exercise its discretion in extreme cases where justice demanded a remedy. I am of the opinion that the decision of the Court of Appeal can only be supported at the cost of opening such a wide door which would indeed seriously undermine the principle of finality in decision making."
The defendant also referred to SZFDE v Minister for Immigration and Citizenship[2007] HCA 35; (2007) 232 CLR 189 at [53] in support of the proposition that a complaint of a denial of natural justice must be based upon more than merely unfairness that results from the conduct of a party's own legal adviser as follows:
"[53]... In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made..."
The defendant also submitted that Australian law supported the policy of finality of litigation: see D'Orta-Ekenaike v Victoria Legal Aid[2005] HCA 12; (2005) 223 CLR 1 at [35] - [36]. The consequences would be potentially far reaching if this Court were to recognise that judicial review was available for the plaintiff in this case. The Tribunal's Annual Report for 2009-2010 demonstrated that almost 60,000 applications were lodged and that 75 per cent were finalised prior to or at the first hearing. Presumably some proportion of those was dealt with under s 28(5) of the Act, about which more is said later in these reasons. The defendant contended that the principle promoted by the plaintiff had potential more widely to apply in other jurisdictions as well: it would be applicable to a range of other situations where negligence or inattentiveness by lawyers was the only reason why a party was not heard. Sympathy for the unfortunate position in which the plaintiff finds itself is not an adequate basis for the grant of the relief that it seeks.
The defendant finally contended that Member Smith was functus officio . I did not understand that contention to be pressed with any enthusiasm. This would appear to be at least for the reason that the application to relist the matter was not an application to Member Smith in particular, even though for convenience it would have been preferable for him to hear it, so much as an application to the Tribunal at large to reinstate a matter that had been otherwise properly dismissed.
Disposition of procedural fairness ground
The plaintiff in effect makes two complaints in this case. The first is that it has been denied procedural fairness because its proceedings were dismissed in its absence. The second is that it has been denied procedural fairness because its application to have the Tribunal reinstate the proceedings was not dealt with or otherwise properly considered. The first complaint raises the question of whether or not the plaintiff's predicament was caused by the fault of its solicitor, in which case the authorities suggest there has been no denial of procedural fairness. The second complaint raises the question of whether or not there is any sound basis for demonstrating that the Tribunal's refusal or failure to reinstate the proceedings occurred in circumstances that also amount to a denial of procedural fairness.
In my opinion, the first complaint is not made out. There is powerful authority to suggest that the dismissal of the proceedings in the circumstances of a case such as the present does not amount to a denial of procedural fairness. When the matter came before the Tribunal there were no appearances. The member waited for 15 minutes apparently in the hope or the expectation that someone for at least one of the parties would appear. When that did not occur the member proceeded to dismiss the application for want of any appearance. It was true that, at that stage, no explanation for the non-attendance of the parties had been provided. The orders that were made at that time, therefore, were correctly recorded in the letter dated 9 February 2011 that was sent by the Tribunal to the parties advising what had happened. The Tribunal was in my opinion entitled to exercise the power contained in s 28(5)(g) of the Act, which precisely contemplated an order of the type that was made in fact. Consistently with SZFDE , the solicitor's "mishap" does not entitle the plaintiff to be heard to complain that the detriment suffered by the plaintiff following the dismissal of the proceedings vitiates the Tribunal's decision to do so.
The position is different with respect to the attempt by the plaintiff's solicitor to reinstate the proceedings. That attempt consisted in an immediate attendance at the Tribunal, a conversation with a woman at the counter in the Registry, an immediate return to the solicitor's office and the immediate writing of a letter of explanation and apology. There was no "bad or negligent advice or some other mishap" detectable in any of that conduct. It was timely and appropriate. The evidence that establishes what Mr Blake did in this respect was neither challenged nor criticised. It is difficult to see how it could be.
However, there appears to have been no response to this application from the Tribunal. The letter of 9 February 2011 was not a reply to Mr Blake's letter, so that the fact that it failed to refer to it is not significant. It is significant, however, that no response to it was ever made later. The Tribunal in effect stood by its original order dismissing the proceedings after an application to reinstate them had been received without at any time acknowledging that the letter containing the reinstatement application had in fact been received or saying why it would not reinstate the proceedings in the circumstances which the letter outlined. It was not suggested to me on behalf of the defendant that Mr Blake's application was inappropriately informal, presumably because it viewed what Mr Blake did in the circumstances as wholly appropriate. I think it was wholly appropriate. So much is apparent from a consideration of s 28(2) and s 28(3) of the Act. The Tribunal had the power to inquire into and inform itself about Mr Blake's expressed concerns without derogating from the rules of procedural fairness. It could also quite properly have dealt with Mr Blake's letter with little formality, which the circumstances of this case plainly permitted. Equity, good conscience and the substantial merits of the case, unconstrained by technicalities or legal forms, also called for a consideration of the letter and a response to it that properly comprehended and dealt with its contents.
In Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 the Court of Appeal dismissed an appeal from a decision of Rothman J in which his Honour had found that there had been a denial of procedural fairness by a Magistrate in the Local Court when he struck out a defence because of a failure by the defendant to conform to procedural obligations in accordance with earlier orders that had been made. The learned President observed at [42] that "[t]he primary judge's conclusion as to a denial of procedural fairness can be seen to be a conclusion that the response of the Magistrate was disproportionate to the [defendant's conduct]". The decision of the primary judge and of the Court of Appeal turned to a large extent upon a proper consideration and application of the Civil Procedure Act2005 , which does not in terms apply to the Tribunal. However, attention was given in particular to s 57(1)(a), which refers to "the just determination of the proceedings". That provision was referred to in Hans Pet v Cassar at [43] as "a matter to be given weight as a fundamental element in the decision making process." The Court was of the view that that principle had not been properly considered or applied. Referring to the provision, the learned President went on to say this:
"[43]...If he had given it weight, it may well have been outweighed by other factors, though it is difficult to see how any proportionate response to a failure to file evidence could require more than a refusal to vacate the dates and a decision that the resolution of the parties' controversy should proceed on the evidence then filed."
I consider that this decision is instructive by analogy with the present case. A fair reading of the Act suggests that the Tribunal is required to make decisions for or leading to a just determination of the proceedings, even if such a requirement would not otherwise be implied. In the present case, the plaintiff's application to relist the matter was not dealt with in a way that had that result. A failure to respond to, or to deal with, the letter from Mr Blake fell outside what I consider to be the proper range of legitimate responses that could and should have been considered. It is important to emphasise that the original dismissal of the proceedings in the absence of the plaintiff, which the Tribunal had power to order, is not in issue. What is in issue is the Tribunal's failure to give the plaintiff the requested opportunity to revisit that decision in order to explain its non-attendance at the hearing. I consider that that refusal is disproportionate to the failure to appear in the first place. The penalty for non-appearance was the order dismissing the proceedings. The explanation offered in support of the application to relist the proceedings required the Tribunal to give the plaintiff an opportunity to be heard as requested or at least to provide a response that dealt with the application. The outcome of the Tribunal's approach, which had the effect of confirming the order dismissing the proceedings, was in my view disproportionate to the plaintiff's original conduct.
I note finally in this respect that s 49 of the Act provides as follows:
" 49 Notice of decisions and reasons
(1) The Tribunal must, within the time prescribed by the regulations, give notice of its decision in a matter that is the subject of proceedings to the parties in the proceedings. The notice must indicate that any party may, within 14 days of receiving notice of the decision, request the Tribunal to provide a statement of reasons for its decision.
(2) Any party may, within 14 days of receiving notice of the decision, request the Tribunal, in the manner prescribed by the regulations, to provide a statement of reasons for its decision. The statement must be provided within 28 days after the request is made.
(3) The statement may be brief but must:
(a) set out the decision and the reasons for it, and
(b) set out the findings on any material question of fact, and
(c) refer to the evidence or any other material on which the findings of fact were based."
Even though the Tribunal gave notice by its letter dated 9 February 2011 of its decision to dismiss the proceedings in accordance with s 49(1), it does not appear that it complied with the section so far as concerns the plaintiff's application to relist the matter. There may be more than one reason for this. There arises in these circumstances at least the possibility that the plaintiff has not been afforded the statutory opportunity to request reasons for the decision now being considered. Counsel for the defendant referred to this provision in a slightly different context during the course of his submissions but the plaintiff raised no complaint that any failure by the Tribunal to comply with it in this case advanced its position in any way. It would in those circumstances be inappropriate for me to determine this case upon the foundation that anything that the Tribunal did or failed to do, having regard to s 49 of the Act, provides the plaintiff with any basis for its claimed relief.
There was in my opinion in all of these circumstances a denial by the Tribunal of procedural fairness to the plaintiff.
Absence of power or jurisdiction
The plaintiff contended that whereas the Tribunal had power to dismiss proceedings where a party fails to attend a final hearing, it had no equivalent or corresponding power to do so at a directions hearing. This argument was said to flow from an examination of the relevant provisions of the Act. Some of these are as follows:
" 3 Objects of Act
The objects of this Act are as follows:
(a) to establish a Consumer, Trader and Tenancy Tribunal to determine disputes in relation to matters over which it has jurisdiction,
(b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,
(c) to enable proceedings to be determined in an informal, expeditious and inexpensive manner,
(d) to ensure the quality and consistency of the Tribunal's decision-making.
25 Notice of proceedings
(1) If any proceedings are to be determined by a hearing, the Registrar must cause notice of the time and place that is fixed for the hearing to be given to each party in the proceedings.
(2) If a party who has been notified under subsection (1) fails to attend at the time and place notified, the proceedings may be held in the absence of the party.
(3)...
28 Procedure of Tribunal generally
(1) The Tribunal may, subject to this Act, determine its own procedure.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness.
(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand:
(a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and
(b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings.
(5) The Tribunal:
(a) is to act as expeditiously as is practicable, and
(b) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and
(d) in the case of a hearing-may require the presentation of the respective cases of the parties in proceedings to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and
(e) may require a document to be served outside the State, and
(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and
(g) may dismiss any proceedings if the applicant fails to attend a hearing, and
(h) must, if requested by the applicant, allow the applicant to withdraw the application, and
(i) may dismiss any proceedings if it considers the proceedings to be frivolous or vexatious or for any other reason that appears to it sufficient, and
(j) may order that any proceedings are to be stayed.
(6)...
29 Procedural directions by members
(1) A member may, in any proceedings, give procedural directions in relation to the proceedings.
(2) In the event of an inconsistency between any procedural direction given by a member under this section and any procedural direction given by the Chairperson under section 12, the procedural direction given by the Chairperson is to prevail.
(3) Procedural directions under this section may be given by any member (whether or not the member is hearing the matter to which the proceedings relate).
(4) Without limiting the grounds on which a member may give procedural directions, such directions may be given that, in the opinion of the member, will enable costs to be reduced and will help to achieve a prompt hearing of the matters in issue between the parties in the proceedings.
(5) The powers conferred by this section extend to enabling a member, if it appears just and expedient to do so, to direct that several matters that are in some manner associated are to be heard and determined together.
(6) The functions of a member under this section may be delegated to the Registrar.
34 Circumstances in which hearing may be dispensed with
(1) The Tribunal may, with the consent of the parties in any proceedings, determine the proceedings:
(a) by considering the documents or other material lodged with or provided to the Tribunal, and
(b) without any hearing,
if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.
(2)...
35 Opportunity for parties to present case
The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity:
(a) to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise), and
(b) to make submissions in relation to the issues in the proceedings."
The plaintiff argued that by reference to a combination of these provisions, the proposition contended for was made good. The power to dismiss any proceedings contained in s 28(5)(g), if the applicant fails to attend a hearing, was said to be limited in context to a final hearing. Section 28(5)(a), (b) and (c) are at best neutral. Section 28(5)(d) is specifically directed to the position "in the case of a hearing". The only other reference to "hearing" in s 28(5) is in s 28(5)(g). The plaintiff argued that "hearing" must have the same meaning wherever used within the section. The plaintiff contended that in s 28(5)(d), "hearing" clearly meant final hearing, and that the same word when used in s 28(5)(g) must have the same meaning.
The plaintiff contended that although in s 28(5)(g) the term "hearing" is preceded by the indefinite article, wherever the word appears elsewhere in Part 4 of the Act it is clear that it is intended to be a reference to "the" final hearing. If "hearing" means final hearing in every other section in Part 4 of the Act, it should be interpreted similarly and consistently in s 28(5)(g).
The reference to a "hearing" in s 34 was said to mean "final hearing" because the power to dispense with a hearing could only have such a meaning. The finality attached to the notion of determining the proceedings, either at a hearing or by dispensing with a hearing, was said to produce that result.
Section 35 requires the Tribunal to ensure that each party is given a reasonable opportunity to call evidence and present its case, whether at a hearing or otherwise. Ordinarily a party would call evidence and present its case at a final hearing. The plaintiff submitted that the (apparent) distinction between "a hearing or otherwise" was "no doubt designed to accommodate the circumstances where a hearing is dispensed with pursuant to s 34".
The only other section of the Act where the term "hearing" is used is s 42 dealing with contempt. Section 42(h) deals with a situation where "the person publishes, or permits or allows to be published, any evidence given before the Tribunal or any of the contents of a document produced at a hearing that the Tribunal has ordered not to be published". The plaintiff submitted that both s 42(h) and (i) show in context that the reference to a "hearing" must be a reference to a final hearing to determine the proceedings.
According to the defendant, the distinction for which the plaintiff contends is unfounded. It proceeded upon the unstated but manifestly erroneous premise that "the final hearing" is the only thing that answers the description of "a hearing". On the contrary, a directions hearing is no less a hearing than a final hearing. Both are encompassed in and contemplated by s 28(5)(g) of the Act. If the draughtsman had intended to limit "a hearing" to "a final hearing", he could easily have said so.
Moreover, according to the defendant, the plaintiff's argument is also inconsistent with the well-established principle that legislative provisions conferring jurisdiction, particularly discretionary powers, are to be construed broadly. In Hyman v Rose[1912] AC 623, the Earl of Loreburn LC said in another well-known passage:
"It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based on the statutory enactment at all. It is not safe, I think, to say that the Court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make this Court wish it had kept a free hand."
There are numerous High Court confirmations of this approach. For example, in Oshlack v Richmond River Council[1998] HCA 11; (1998) 193 CLR 72 at [21] - [22] Gaudron and Gummow JJ said this:
"[21] The provisions of s 69 of the Court Act which confer upon the Court the discretion exercised by the primary judge attract the application of the general proposition that it is inappropriate to read a provision conferring jurisdiction or granting powers to a court by making conditions or imposing limitations which are not found in the words used. The necessity for the exercise of the jurisdiction or power by a court favours a liberal construction. Considerations which might limit the construction of such a grant to some different body do not apply.
[22] The terms of s 69(2) contain no positive indication of the considerations upon which the Court is to determine by whom and to what extent costs are to be paid. The power conferred by the section is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt the words of Dixon J, unconfined except in so far as "the subject matter and the scope and purpose" of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be "definitely extraneous to any objects the legislature could have had in view".
The defendant submitted that the plaintiff's argument also ignored the fact that pursuant to s 28(1) of the Act, the Tribunal may determine its own procedure. On one view of the matter, the Tribunal has made such a determination, namely that it will exercise its s 28(5)(g) powers at any hearing. The notice of hearing sent to the parties contains a notification that "[i]t is important that you are on time as the Tribunal may decide the matter in your absence". It continues, "[t]he decision made will be binding on you". The defendant contended that it would be wrong to seek to construe a grant of particular power in s 28(5) as a substantive limitation on the Tribunal's general power given by s 28(1).
Disposition of the jurisdiction ground
With great respect to the detailed submissions proffered by the plaintiff, I am unable to accept that the power of the Tribunal to dismiss proceedings is limited or constrained in the way suggested. I accept the defendant's submission that such a limitation on power can neither be derived from the natural and ordinary meaning of the words of the statute, nor should it be found to exist unless there is the clearest of indications from the words of the Act that it does. There appears to me to be no warrant for engrafting onto the power of the Tribunal to determine its own procedure a limitation that is both unexpressed and not otherwise obvious or apparent. I do not agree that the use of the term "hearing" within the context of the Act, or any particular parts of it, leads to the conclusion that there is such a limitation. Moreover, as a matter of practical and procedural common sense, there does not appear to be any principled or rational imperative for limiting the Tribunal's power to dismiss proceedings to final hearings when the utility of being empowered to do so in an appropriate case well before a final hearing occurs is obvious. Indeed, a final hearing may never occur in some cases for the very reason that an applicant for relief before the Tribunal either never appears or ceases to appear.
I would reject the plaintiff's argument based upon this ground.
Orders
It follows in my opinion that the plaintiff is entitled to relief.
Section 65 of the Act is in the following relevant terms:
" 65 Review by prerogative writ etc generally excluded
(1) Except as provided by this section, a court 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 relief, or
(b) a declaratory judgment or order, or
(c) an injunction,
in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter.
(2) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the jurisdiction of the Tribunal to determine the matter was disputed if the ground on which the relief or remedy is sought is that:
(a) the Tribunal gave an erroneous ruling as to its jurisdiction, or
(b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed.
(3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that:
(a) the Tribunal had no jurisdiction to make the order, or
(b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness."
The plaintiff's amended summons claims the relief that I have earlier described. It includes an order in the nature of prerogative relief. The power of this Court to grant such relief is recognised by s 65 of the Act. However, having regard to my conclusions in this matter and to the plaintiff's other prayers for relief, including an order that the proceedings be remitted to the Tribunal for further directions with respect to the future conduct of the matter, I consider that the parties should be given an opportunity to consider these reasons and to make such brief submissions with respect to the appropriate form of relief to be granted at some convenient time. That time should be arranged in consultation with my Associate, conveniently to the Court and to the parties. I will then also hear the parties on the question of the costs of the proceedings before me if required.
**********
Decision last updated: 29 August 2011
0
5
3