Wollongong City Council v Papadopoulos

[2019] NSWCA 178

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Wollongong City Council v Papadopoulos [2019] NSWCA 178

Hearing dates:

2 July 2019

Decision date:

19 July 2019

Before:

Basten JA at [1];
Leeming JA at [2];
McCallum JA at [87]

Decision:

1. Appeal allowed in part.

 

2. Set aside the judgment entered in favour of Ms Papadopoulos on 6 July 2018 in the amount of $147,835.32, and in lieu thereof enter judgment in favour of Ms Papadopoulos against the Council.

 

3. Remit the proceeding to the District Court for further hearing, confined to the issue of damages.

 4. No order as to the costs in this Court, with the intention that the Council bear its own costs of the appeal.

Catchwords:

DAMAGES – breach of contract – calculation of economic loss – respondent operated kiosk on premises licensed from appellant – appellant breached licence agreement – no evidence of damages – primary judge used ATO “benchmarks” for restaurant businesses to derive likely lost profits – whether primary judge could take judicial notice of benchmarks – whether benchmarks capable of sustaining damages calculated by primary judge – whether nominal damages should be awarded or the matter remitted

  TRIAL – procedural fairness – court invited appellant’s counsel to attend to make further submissions on damages after judgment reserved – no response from counsel – invitation repeated by court – appellant’s counsel supplied written submission opposing further hearing – court proceeded to assess damages against appellant without further hearing – whether course adopted by court procedurally unfair

Legislation Cited:

Civil Procedure Act 2005 (NSW), Part 6
Crown Lands Act 1989 (NSW), Part 5
Crown Land Management Act 2016 (NSW), Schedule 7
Legal Profession Uniform Conduct (Barristers) Rules 2015, rr 4, 23
Uniform Civil Procedure rules, rr 36.15, 36.16

Cases Cited:

Amaca Pty Ltd v Hicks [2011] NSWCA 295
Aytugrul v The Queen (2012) 247 CLR 170; [2012] HCA 15
Bales v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226
Bull v Lee (No 2) [2009] NSWCA 362
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
D’Orta-Ekenaike v Victoria Legal Aid (2015) 223 CLR 1; [2005] HCA 12
Eastman v DPP (ACT) (2003) 214 CLR 318; [2003] HCA 28
Gattellaro v Westpac Banking Corporation [2004] HCA 6; 78 ALJR 394
Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52
McCrohon v Harith [2010] NSWCA 67
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31
Notaras v Waverley Council [2007] NSWCA 333; 161 LGERA 230
NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48
Rondel v Worsley [1969] 1 AC 191
Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; 332 ALR 128
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4
Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21
Stanwell Park (R83095) Reserve Trust v Papadopoulos [2019] NSWCA 57

Category:

Principal judgment

Parties:

Wollongong City Council (Appellant)
Sofia Papadopoulos (Respondent)

Representation:

Counsel:

 

M Walsh SC and M Maconachie (Appellant)
In person (assisted by Mr Matters as McKenzie friend with leave) (Respondent)
D E Baran and J Thompson (Amicus Curiae)

 

Solicitors:

  Kells The Lawyers (Appellant)

File Number(s):

2018/235339

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

Nil

Date of Decision:

5 July 2018

Before:

Curtis ADCJ

File Number(s):

2017/49343

Judgment

1. BASTEN JA: I agree with Leeming JA.

2. LEEMING JA: Wollongong City Council appeals, as of right, from a judgment entered against “Stanwell Park Reserve Trust” in the amount of “$147,835.32” in proceedings brought by Ms Sofia Papadopoulos. The appeal is narrowly focussed. For present purposes, it suffices to say that Ms Papadopoulos was the licensee of premises known as the “Stanwell Park Reserve Kiosk”, on land owned by a reserve trust and managed by the Council. Ms Papadopoulos not only operated a kiosk from those premises, but also resided there. In October 2015, the Council disconnected the range hood and oven and stove equipment in the kiosk on the basis that the electrical wiring was unsafe. Ms Papadopoulos thereafter continued to operate the kiosk using a mobile kitchen and cooking facility. She also ceased paying rent. Ultimately, Ms Papadopoulos was evicted.

3. Ms Papadopoulos commenced proceedings in 2017 in the District Court of New South Wales as an unrepresented litigant seeking damages of some $380,000.

4. Following a hearing of three days in May 2018 followed by written submissions, the primary judge found in favour of Ms Papadopoulos in a judgment delivered on 5 July 2018. There is now no challenge by the Council to the findings of liability. The Council’s further amended notice of appeal, leave for which was granted during the hearing without opposition, advances two grounds. The first is that there were errors in the assessment of damages. The second is that the Council was denied procedural fairness. The subject matter of both grounds is the same: it is the use of “benchmarks” published by the Australian Taxation Office, for the purpose of deriving an estimate of economic loss, and the selection of what the Council describes as “an arbitrarily fixed amount as the value of rent-free accommodation” for the same purpose.

5. Contrary to the enumeration of those grounds in the notice of appeal and the Council’s written submissions and, in part, its oral submissions, it is appropriate first to deal with procedural fairness. That follows not merely as the ordinary consequence of what was said in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2] and [117], as to which see Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; 332 ALR 128 at [9]; it is also a consequence of the fact that the very documents which the Council maintains in ground 2 gave rise to appellable error – the ATO benchmarks – are the documents as to which Council declined the Court’s invitation to be heard, which is the main thrust of ground 3.

6. The absence of any challenge to the Council’s liability means that large portions of the proceedings need not be summarised. What follows is confined to what appears to have been a very minor aspect of the trial, namely, Ms Papadopoulos’s case for substantial damages. The Council did not plead, and does not appear to have advanced, any positive case that Ms Papadopoulos suffered no loss.

7. This Court was assisted by Mr Baran of counsel, who appeared as amicus, and who made concise and helpful written and oral submissions following his acceptance of an appointment to that role for reasons given in Stanwell Park (R83095) Reserve Trust v Papadopoulos [2019] NSWCA 57. The Court was also assisted by Mr Paul Matters who, with leave, assisted Ms Papadopoulos, as he had done before the primary judge.

The course of the trial

8. The transcript of the first day of the trial, 16 May 2018, records that there had earlier been directions for the filing and serving of not only expert but also lay evidence, contrary to the usual practice in civil actions in the District Court. Ms Papadopoulos appeared for herself. Junior counsel appeared for what was then the sole defendant, which was named as “Stanwell Park Reserve Trust” (although actually titled “Stanwell Park (R83095) Reserve Trust”). Ms Papadopoulos had sworn an affidavit on 22 June 2017 which, after summarising the factual matters leading to the disruption to services at the kiosk, continued at paragraphs 49-54 as follows (the first sentence of 49 and the whole of paragraphs 53 and 54 were objected to and appear to have been rejected by the primary judge):

“49 I estimate that I have lost eighty per cent of my business that I provided prior to the closure of the kiosk kitchen and cooking facilities. This loss of business has placed my company in jeopardy of liquidation, reduced my cash flow to the point where it no longer provides me with an income and has effectively denied me the financial resources to pay the rental that was agreed by me in the contract before it was varied.

50 On 17th December 2015 I informed Mr. Peter Coyte that I would not be paying a rental due to the disastrous losses to my business caused directly by the unsafe and dangerous condition of the kiosk cooking and kitchen facilities and the consequent inability to be able to utilize these facilities.

51 I based my decision on Clause 16 (a) and (b) of the Licence Agreement for Occupation of Land for Kiosk and Residence.

52 Since 16th December 2015 I have conducted my business without adequate cooking facilities using a mobile kitchen and cooking facility. At no time from 16th December until the day of making this affidavit have I paid rent.

53 On or about December 2016 I sent to Wollongong City Council a written proposal to resolve the issues between myself and the Stanwell Park Reserve Trust. As I am currently unable to access my business records due to the actions of Wollongong City Council I am unable to provide a copy of the proposal for settlement,

54 The defendant has not replied to my proposal of settlement as at the time of making this affidavit.”

9. The primary judge said in response to the objection to the first sentence of par 49:

“HIS HONOUR: Well, I accept that as a submission that will have to be proved by figures. Mr Matters, the books will have to be produced.

MATTERS: I’m sorry your Honour?

HIS HONOUR: The books of account will have to be produced, witness says she lost 80% of her business and that could be proved by bringing the books.

MATTERS: You’re directing it to be done by tomorrow, your Honour?

HIS HOUR: If you can get it done by tomorrow, otherwise they don’t go in.

MATTERS: I see, we’ll try our best.

HIS HONOUR: Do what you can.”

10. Ms Papadopoulos was cross-examined that day, following which the primary judge returned to the topic of evidence of loss:

“HIS HONOUR: … Now Mr Matters, it will be obvious[ly] relevant to produce some trading documents.

MATTERS: Yes, your Honour.

HIS HONOUR: So, get every bit of paper you can and we’ll see you all tomorrow.”

11. On the afternoon of the following day, Thursday 17 May, Ms Papadopoulos sought to tender “the financial records for the shop that you asked for yesterday”. She had not provided them to counsel for the Council and provided a copy to him. Seemingly, the tender was voluminous, because his Honour then said, “Mr Matters, whenever voluminous documents are prepared, it’s useful to have a summary as to the effect of it”.

12. Mr Matters responded, “Perhaps, your Honour, I will undertake to do a summary overnight and that might help”. Ms Papadopoulos confirmed that she had no further witnesses and that, subject to the tender of financial records, was her case.

13. On the third day, Friday, 18 May 2018, objection was made to the financial records. Mr Matters said that “Mrs Papadopoulos overnight did get a summary done by her accountant of those figures … and she did an affidavit which is unsigned and unsworn which goes to the issue of where those documents came from”. The primary judge suggested that business documents would speak for themselves. Counsel denied that and said:

“[COUNSEL]: They do not speak for themselves. They are not business records. They are in my submission mere scraps of paper, but I will take your Honour to that in due course”.

14. His Honour examined the bundle of documents and there were short submissions about the admissibility of Ms Papadopoulos’s opinions about the trading of her kiosk. There followed this exchange:

“HIS HONOUR: Mrs Papadopoulos, the reason rules exist in this court is to ensure fairness.

PLAINTIFF: Yes.

HIS HONOUR: If this information and the primary documents have been provided to the other side [by] the Court rules they should have been, they would have had the opportunity to verify themselves the figures. I just can’t let that go because it’s not fair to them. So I reject the tender.

[COUNSEL]: Your Honour, I haven’t in the written submission that I provided to your Honour and any submission about the affidavit, I hadn’t received it when I drafted that submission, I object also to the affidavit.

HIS HONOUR: It is consistent with what Mr Coyte said, that if you put a silly figure as he thought and if you didn’t put anything else, I don’t think it hurts you.

[COUNSEL]: I still object to it your Honour.

HIS HONOUR: If you object to it then I think – I’ve been far too accommodating perhaps in this case. Had it been conducted professionally these problems would not have arisen and I reject the affidavit.

[COUNSEL]: May it please the Court.”

15. The hearing concluded with directions for the counsel to provide submissions by 4pm on 8 June with the plaintiff’s submissions two weeks later.

Events following judgment being reserved

16. Some 25 minutes before the deadline for the provision of submissions, counsel sent an email to the primary judge’s Associate, copying into the email Ms Papadopoulos and Mr Matters, seeking an extension of time until Tuesday 12 June. By email reply to all parties, the judge’s Associate granted that extension. Shortly after 8pm on Tuesday, 12 June 2018, counsel’s submissions were sent by email.

17. On Thursday, 21 June 2018, the judge’s Associate wrote to counsel without copying Ms Papadopoulos or Mr Matters as follows:

“Sofia Papadopoulos v Stanwell Park Reserve Trust 17/49343

His Honour requests that you advise of a suitable time and date between 22 June 2018 and 2 July 2018 inclusive to address the Court on the use of public records for the purpose of computing lost earnings.

Once you nominate a suitable time I will confirm that a court room is available and notify the Plaintiff.”

18. There was no response to that email on that day or Friday 22 June 2018, or the weekend, or at any time before the evening of Monday 25 June 2018.

19. At 4:08pm on Monday 25 June 2018, an officer of the District Court wrote again to counsel, copying in his clerk. The email was as follows:

“Dear [counsel],

2017/49343 Sofia Papadopoulos against Stanwell Park Reserve Trust

Acting Judge Curtis would like to hear from you before he publishes his reasons in the above matter.

I would be grateful if you could let me know a day (or two) this week which suits you so that this may take place. His Honour is able to sit from 09:00 any day this week if that suits you.

I see from the Court file that there is only a telephone number of Ms Papadopoulos. I shall make contact with her after I hear from you.

Please reply by return email at your earliest convenience.”

20. At 6:02pm on Monday, 25 June 2018, counsel replied to the email from the judge’s Associate of Thursday 21 June 2018, copying in Ms Papadopoulos and Mr Matters, in the following terms:

“Dear Associate,

I refer to your email below, and to the email of Mr Nicholas Ainsworth, dated today. That latter email is attached hereto.

I note that the Court has requested that I nominate a time this week for oral submissions on the use of public records for the purpose of computing lost earnings.

For the reasons set out in my submissions, attached hereto, the Court should not, in my respectful submission, hear submissions on that issue.

As also set out in the attached submissions, any listing for oral submissions should not be until at least next week, when the defendant has had an opportunity to consider any submissions by or on behalf of the plaintiff, which are due tomorrow.

I have copied this email to each recipient of Mr Ainsworth’s email, to the plaintiff and Mr Matters (at email address for each of them previously provided to my instructing solicitor) and to my instructing solicitor.”

21. The submissions which were attached comprised eighteen paragraphs over two and half pages. The first seventeen paragraphs addressed the history of the trial and advanced the proposition that it was not appropriate for the matter to be relisted. The submissions stated that the evidence had closed, that the Council was unaware of any application to re-open, that there was no document in evidence that obviously met the description “public record”, that no public record was referred to in the pleadings or identified at trial and that the plaintiff had not made any submissions. It was then put:

“In all of those circumstances the defendant cannot identify what public document the Court's note of 21 June 2018 contemplates. The defendant cannot identify any public record or species of public record that would be capable of assisting in the computation of lost earnings.

The defendant is entitled to receive, and to reply to, any submissions provided by or on behalf of the plaintiff prior to the Court receiving any oral submissions or giving any judgment. That is especially so if the plaintiff has raised the issue of computation of lost earnings via public documents that are not before the Court in any way, and have not been identified - indeed that are not even identifiable.

It is respectively submitted [sic] that if the plaintiff has not raised the issue of computation of lost earnings using public records, it is not appropriate for the Court to raise that issue. To do so would be for the Court to exceed the limits of proper judicial intervention: Jones v National Coal Board [1957] 2 QB 55 at 64.

The plaintiff bears the onus of proof as to any loss suffered, and as to the quantification of that loss.

To ask the defendant to address the broad question of the use to which the Court can put public records in assessing quantification of loss without there being some framework in the plaintiff's case, particularising the manner in which the plaintiff says her case is to be expressed:

(i) denies the defendant any focus so as to enable it to make any meaningful submission to the Court;

(ii) is fundamentally unfair in that it requires the defendant to set up a case in order to knock it down;

(iii) is in substance a reversal of the onus of proof; and

(iv) is inconsistent with the overarching purpose of facilitating the just, quick and cheap resolution of the real issues in dispute.

It is respectively submitted [sic] that it is not appropriate that the matter be re-listed prior to the defendant having received any submissions that the plaintiff may provide, and having had an adequate opportunity to reply to them.

It is respectively submitted [sic] that it is not appropriate for any issue not raised by the parties during the hearing to be made the subject of the proceedings now.

The matter should not be listed for further submissions until at least 3 July 2018, being one week after the date of the plaintiff’s submissions.”

22. So far as the evidence in this Court discloses, there were no further communications until, on 3 July 2018, an officer in the District Court advised Mr Matters and the solicitor whose name and email address appeared on the Council’s defence and (it may be inferred) notice of appearance, that judgment would be delivered on Thursday 5 July at 9:30am. That solicitor had ceased to practice at the firm. It would seem that there was no appearance on behalf of the Council when judgment was delivered. An email sent at 9:19pm that evening from one partner of the firm to the solicitor with carriage of the matter advised that:

“It appears that after the cloud migration that redirections are not working.

I have just found this in Lorri’s inbox.”

23. This “evidence” was contained in an affidavit sought to be read by the Council on the appeal. If there were other communications following delivery of judgment, which seems far from improbable, they were not in evidence.

Reasons of the primary judge

24. The primary judge addressed damages at [37]–[52]. His Honour commenced by stating that no financial records were in evidence to assist in the calculation of damages, and referred to what he described as an attempt to “tender an accountant’s report” that had not been previously served upon the defendants. This, presumably, was a reference to the summary of primary documents supplied on the second day of the trial, which was said to have been prepared by Ms Papadopoulos’ accountant, in response to the request by the primary judge on the first day of the trial.

24. The primary judge then said at [38]:

“Nevertheless I believe that the defendant’s conduct has been disgraceful. I have no jurisdiction to award damages for unconscionable conduct pursuant to section 62B of the Retail Leases Act 1994 but propose to adopt a robust approach to the determination of the plaintiff’s loss.”

26. His Honour said that the probable losses were capable of calculation from other evidence. His Honour then reproduced the whole of paragraph 49 of Ms Papadopoulos’s affidavit, including the first sentence to which objection had been taken and ruled upon. After referring to s 144 of the Evidence Act1995 (NSW), his Honour referred to the benchmarks regularly published by the ATO as a guide to the average costs of operating small businesses. He said that those benchmarks used information contained within restaurants’ tax returns and business activity statements. He then said:

“The Benchmark for restaurants in the 2015-16 financial year, records the ratio of rent to turnover varies between 13% and 19% (average 16%) and the average total expenses as a percentage of turnover varies between 81% and 90%. (Average 85.5%).”

27. His Honour then said that it followed that the average profit was 14.5% of turnover, and the probable turnover could be deduced from figures in evidence.

28. By reference to the breach notice served by the Council referring to some 61 weeks of unpaid rent, his Honour calculated that the annual rent and rates payable was $114,261. His Honour then stated that if that sum was 16% of the annual turnover, then that turnover must be $714,131, and a profit at 14.5% was $103,549 per annum, or $1,991 per week. Allowing for income tax, that left an after-tax profit of $77,289 or $1,486 per week.

29. His Honour then dealt with the value of rent-free accommodation as follows:

“To this must be added the value of rent free accommodation in the attached living quarters. Judicial knowledge permits me to arbitrarily fix this at $300 per week because it cannot be reasonably argued that it is less. The annualised loss of Mrs Papadopoulos after the eviction is then $92,889, that is, $1786.30 per week.

Mrs Papadopoulos was evicted on 21 June 2017. The license ran until 2 February 2018, a further 32.4 weeks. The loss after eviction is $57,876.12.”

30. The primary judge then dealt with the period from 16 October 2015, when the Council disconnected the cooking facilities, to 20 June 2017 when she was evicted. The primary judge said that Ms Papadopoulos retained the use of the residence but said that her turnover was reduced by 80%. Another witness estimated 60%. His Honour said that he took a middle figure of 70% and using the weekly turnover of $13,733, concluded that turnover was reduced to $4,120. His Honour said that the profit of that reduced turnover would be $597.40 per week. That reflected a loss of $935.60 per week (calculated by reference to net figures of $1,486 minus $550.40), and an accumulated loss of $81,397.

31. The final component of damages was the repayment of Ms Papadopoulos’s security deposit in the amount of $8,580.

32. The damages awarded of $147,835.32 was said to comprise the sum of $57,876.12, $81,397.20 and $8,580. (That sum is in error. The correct sum should be $147,853.32, although nothing ultimately turns on this.)

33. The primary judge stated at [52]:

“After reserving my decision, through my associate, I invited [counsel] to attend court and make oral submissions in relation to this use of public records. He declined that invitation.”

The application after judgment

34. By notice of motion filed 17 July 2018 (12 days after judgment was delivered), the Council sought a stay of execution. The motion was heard by the primary judge on 31 July 2018. That hearing was only partially transcribed. It appears that counsel identified a series of errors which were to be the subject of an appeal, at least some of which were directed to points that did not form part of the appeal in this Court. Most of the first two pages of transcript that is available seeks to identify an alternative basis for terminating Ms Papadopoulos’s lease, in accordance with Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 378; [1931] HCA 21; no such submission was made in the appeal. The following submission was then made:

“[COUNSEL] … Then, your Honour, the last arguable ground, in my respectful submission, is that it wasn’t permissible in circumstances for the Court to rely upon public records to calculate loss, and your Honour referred to, in relying on statistics from the Australian Taxation Office, section 144 of the Evidence Act, which I think I foreshadowed in my submissions to why your Honour should not entertain or should not take into account public records. That section refers to matters that are common knowledge in the place or in the locality”.

35. Counsel then said that:

“there was an element of unfairness to the council because when I was asked to indicate when I could come to Court to discuss that, I didn’t know what public records were being contemplated and in order to prepare for that, I would’ve had to have known.”

36. The primary judge was critical of counsel refusing his invitation to attend Court. Junior counsel denied that that was what he did. He said that he drafted submissions as to why a further hearing was not appropriate and then added that any further hearing should not occur until Ms Papadopoulos had put on her submissions. He supplied to the primary judge his email, which has been reproduced above, and there followed this exchange:

“[COUNSEL]: … So in my respectful submission, I didn’t decline an invitation to come back to Court, I said [Council’s] position is that your Honour would not entertain, or, rather would not take into account public records, but in any event, oral submissions should be next week. It may be that I could’ve worded it more clearly and I apologise if I didn’t make myself clear.

HIS HONOUR: No, I think you might be right. I was I think overseas at the time and communication was difficult”.

37. After a further exchange, during which counsel developed the point that the benchmarks from the ATO were inappropriate in that they had no application to this individual plaintiff, the primary judge said “anyway, I think you’ve made your point. I apologise to you … for misreading your email, which I probably read very quickly”. The primary judge granted a stay of execution.

Parties to the appeal

38. Until 1 July 2019, the owner of the land licensed to Ms Papadopoulos was a reserve trust established pursuant to Part 5 of the Crown Lands Act 1989 (NSW). That Act was repealed by the Crown Land Management Act 2016 (NSW) with effect from 1 July 2018. However, on 1 July 2019, the reserve trust was abolished at the expiry of the “continuation period” under cl 10A(6) of Schedule 7 of the 2016 statute, and by reason of cl 11(5), the Council acquired all of its assets, rights and liabilities.

39. For those reasons, it was appropriate for the Council to be the sole appellant, although a different entity was the landowner when Ms Papadopoulos was in possession and when she was evicted, and during the trial. Orders were made regularising this when the appeal was heard.

Denial of procedural fairness

40. Ground 3 of the further amended notice of appeal is as follows:

3. Contrary to what his Honour said at [52] of his reasons, the appellant was denied procedural fairness and the primary judge acted without regard for the provisions of s 144(4) of the Evidence Act 1995 (NSW) when he determined to use the Australian Taxation Office’s benchmarks and an arbitrarily fixed amount as the value of rent free accommodation of the living quarters attached to the Kiosk by way of judicial knowledge without:

(a) giving the appellant the opportunity to be heard; and

(b) without regard for the appellant’s written submissions on the question which were actually made.

Note this ground involves a challenge to a finding of fact.”

41. I do not accept that this ground is made out.

42. It is necessary to consider, and with some precision, each of the events which occurred after judgment was reserved.

43. First, there was the ex parte communication from the judge’s Associate to counsel on the afternoon of Thursday, 21 June 2018. The email stated on its face that Ms Papadopoulos had not been included in the communication. (During the trial, Mr Matters had told the Court that he believed that Ms Papadopoulos did not have an email address.) The email also stated on its face that the request was for counsel to “advise of a suitable time and date between 22 June 2018 and 2 July 2018 inclusive”. On no view was the email an invitation to make submissions. Rather, the email was of a purely administrative nature, asking counsel to advise of a suitable time and date in a six day period. The subject matter of the further hearing was described as “to address the Court on the use of public records for the purpose of computing lost earnings”.

44. Secondly, no response was made by counsel to that email, either on Thursday 21 June, or Friday 22 June, or the weekend or at any time on Monday 25 June before 6:00pm in the evening. There is no evidence that counsel was unavailable, or had failed to notice the email.

45. Thirdly, the absence of a response led to a second email from the Court, this time copied to counsel’s clerk, at 4:08pm on 25 June 2018, reiterating that the primary judge “would like to hear from you before he publishes his reasons in the above matter”. Once again, the email made it plain that Ms Papadopoulos had not been included in the communication, and explained why (“I see from the Court file that there is a telephone number for Ms Papadopoulos. I shall make contact with her after I hear from you”). The Court was offering any of the remaining four days that week, including from 9:00am on any of those days, if that were suitable.

46. Once again, it was plain that the email was purely administrative, not calling for any substantive response, but merely the availability of counsel.

47. Fourthly, counsel’s response, sent at 6:02pm on Monday, 25 June 2018, took a different approach. Counsel did not provide any availability at any of the times which had been proffered by the Associate or the Court. Counsel attached a short written submission contending against there being any further hearing at all, and alternatively, contending that any hearing should not occur prior to Ms Papadopoulos’s submissions being supplied. Counsel copied into his email both Ms Papadopoulos and Mr Matters.

48. In this Court, senior counsel for the Council submitted that the response made on 25 June 2018 “probably comes within correspondence and a submission to the trial judge suggesting a timetable that affords procedural fairness”. This is not so. The Council’s belated response to the Court’s requests was inappropriate. There was no leave granted to make further submissions. The request from the Court was administrative for the determination of a date. The Court was evidently seeking to minimise the inconvenience to counsel in attempting to find a date that was available, and to do so in a way which did not involve the potential for confusion to Ms Papadopoulos.

49. Senior counsel’s submission was unsupported by authority. It is contrary to a deal of authority, of this Court and the High Court, deprecating the provision of supplementary written material after the conclusion of oral argument, without leave. McHugh ACJ, Gummow, Callinan and Heydon JJ described doing so as “unsatisfactory” and “impermissible” in NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48 at [192]; see also Eastman v DPP (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [28]–[31] and [143] and Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 at [111]. This Court has repeatedly stated that doing so is “misconceived” and should not occur: Notaras v Waverley Council [2007] NSWCA 333; 161 LGERA 230 at [147]; Bull v Lee (No 2) [2009] NSWCA 362 at [8]-[9]; McCrohon v Harith [2010] NSWCA 67 at [136]-[137]; Bales v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 at [57]-[59] and Amaca Pty Ltd v Hicks [2011] NSWCA 295 at [41].

50. The circumstances in this trial were clear. No leave was given at all for further written submissions. All that counsel was asked to do, and was required to do, was to identify a time or times for a further hearing. The submissions should not have been drafted or sent.

51. The position is a fortiori where counsel’s opponent is unrepresented. Some unrepresented litigants are themselves prone to provide material to a court without leave after judgment is reserved. Their culpability may be less than that of a legal practitioner, for they may not be expected to be familiar with basic precepts of practice which have been stated and restated by the High Court and this Court.

52. It may be assumed that the view of the Council was that the hearing contemplated by the primary judge was inappropriate. But the occasion to make that submission was in open court, in the presence of the other side, not by unilateral written submission made without leave.

53. Further, counsel’s primary obligation was to assist the Court. That duty has long been described as “paramount” or “overriding”. In Rondel v Worsley [1969] 1 AC 191 at 227, Lord Reid said:

“[Counsel] has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests.”

The same principles are stated in Giannarelli v Wraith (1988) 165 CLR 543 at 555-556, 572; [1988] HCA 52, and D’Orta-Ekenaike v Victoria Legal Aid (2015) 223 CLR 1; [2005] HCA 12 at [111]. The same principles are reflected in the Legal Profession Uniform Conduct (Barristers) Rules 2015: see r 23, “A barrister has an overriding duty to the court to act with independence in the interests of the administration of justice” and r 4(a), “barristers owe their paramount duty to the administration of justice”.

54. Counsel had an obligation to respond to the primary judge, and to do so promptly. He was required to do so even if he considered, or was instructed, that it was contrary to the interests of his client. There was no explanation given as to why counsel did not respond promptly to the judge’s Associate’s first email until a reminder email was sent some four days later. Nor was there an explanation as to why counsel did not respond directly to the primary judge’s request that he nominate a date for hearing. In particular, there was no suggestion that counsel was unavailable on all of the six days nominated by the primary judge.

55. Contrary to the Council’s submissions, what the primary judge said at [52] of his reasons is factually correct. It is true that the primary judge’s Associate invited counsel to attend Court and make oral submissions in relation to the use of public records. Paragraph 52 (set out at [33] above) is incomplete, insofar as it does not mention the fact that counsel was invited not once but twice to do so. The paragraph is also in substance correct to record that counsel declined that invitation. The primary judge nominated no fewer than six dates for that hearing to occur. The Court, on the following Monday, offered four dates, including outside ordinary Court hours, for that to occur. Counsel’s response declined to accept any of the dates which had been proffered to him on either of those invitations.

56. It is true that [52] is incomplete, insofar as the paragraph fails to summarise counsel’s substantive response, which was that there should be no further hearing, and indeed that it was wrong for the primary judge to suggest that there should be, with alternative submissions that if there was a hearing it should be after Ms Papadopoulos had supplied her submissions, and in any event, after the days nominated by the primary judge. The fact that the primary judge did not record the fallback submissions made without leave on behalf of the Council does not make [52] erroneous.

57. Much reliance was placed by the Council on the short exchange which occurred on 31 July 2018. Counsel protested that:

“So in my respectful submission, I didn’t decline an invitation to come back to Court, I said [Council’s] position is that your Honour would not entertain, or, rather would not take into account public records, but in any event, oral submissions should be next week.”

That is a somewhat skewed summary of a response which declined every proffered date. It is true that the primary judge is recorded as saying that he had misread counsel’s email, but it is far from clear that what was said by the primary judge after the event is materially relevant to whether there was a breach of procedural fairness. Whether or not there was a breach of the obligation to accord procedural fairness is determined objectively, on the basis of the facts established at the time of the breach.

58. One reason for prominence being given to what was said on 31 July 2018 was to sustain the submission that, not until that occasion did the Council become aware of the mistake which, so it was said, the Court had made, and by that stage, the 14 days for which Uniform Civil Procedure Rules r 36.16 made provision had elapsed. This submission is unsound, for the following reasons:

1. First, this is a question of fact, and is unsupported by any evidence.

2. No later than 17 June 2018, instructions had been sought and obtained and counsel had filed a notice of motion seeking a stay. An element of that application was identifying error (or arguably error) in the judgment of the Court. There is no reason to doubt that one of the errors in fact articulated on 31 July 2018, the alleged denial of procedural fairness, had in fact been appreciated when the motion was filed. That was within the 14 day period.

3. Indeed, the fact that the primary judge had used benchmarks published by the ATO, and had purported to apply s 144 of the Evidence Act, was obvious on the face of his Honour’s reasons, and must have become known to the Council shortly after those reasons were received. Likewise, the fact that the primary judge had recorded the invitation extended to the Council, and Council’s declining to accept it, was also obvious on the face of the reasons. It may be noted that the reasons occupy a mere 9 pages.

4. In any event, the power in r 36.16 is supplemental to the separate power conferred by r 36.15, to vary or set aside judgments or orders made “irregularly, illegally or against good faith”. Council’s complaint in ground 3, if made out, falls within r 36.15. Senior counsel expressly withdrew a submission that had been made that r 36.15 was subject to the same time limits as r 36.16. The withdrawal was properly made.

59. It follows that I do not accept that there was a denial of procedural fairness in relation to the use of the ATO’s benchmarks. If the Council declines the invitation to be heard, twice proffered, it cannot later complain that it had no opportunity to be heard.

60. The use by the primary judge of an amount of $300 per week as the value of rent-free accommodation falls into a different category. This did not depend upon any document (whether or not in evidence). It is probable that the further hearing which was declined by the Council would have addressed the calculation of rent. In any event, no separate submissions were made as to this being an independent basis to conclude that there had been a denial of procedural fairness.

61. Finally, I do not accept the final aspect of this ground, that no regard was had to the Council’s “written submissions on the question which were actually made”. The substance of those submissions was not to accede to the invitation to be heard. That was accurately recorded in [52] of the reasons of the primary judge.

62. This ground is not made out.

Errors in the calculation of damages

63. Ground 2 is in the following terms:

“2. The learned primary judge erred in:

(a) using untendered benchmarks published by the Australian Taxation Office to calculate the plaintiff’s loss; and

(b) adopting an arbitrarily fixed amount as the value of rent free accommodation in the living quarters attached to the Kiosk; and

(c) making a finding of an entitlement in the respondent to repayment of her security deposit in the sum of $8,580 forfeited by the second appellant, in the absence of evidence to sustain such a finding,

to calculate the plaintiff’s loss.”

64. The appellant’s original submissions in support of its appeal, dated 21 November 2018 and signed by junior counsel and a senior counsel who did not appear at the appeal, annexed a two page extract purporting to be a printout from the ATO website from a directory described as “Home / Business / Small Business Benchmarks / In Detail / Benchmarks A-Z / R-Z / Restaurants”. The extract included the following advice:

“Restaurants

Business in this industry sell food and drink, generally for consumption on the premises.

Performance benchmarks

These benchmarks use information reported on tax returns and activity statements for the 2015–16 financial year, and are updated each year. This is the most current data.

The benchmarks show ranges of business income to business expenses that you can use to compare your performance against similar businesses in your industry.

Key benchmark range

Cost of sales to turnover is the key benchmark range for this industry – it is likely to be the most accurate when predicting business turnover. If you don’t report cost of sales, or only report a small amount, use total expenses to turnover as your key benchmark range instead.

Generally, you should fall within the key benchmark range for your particular annual turnover.

Falling outside the key benchmarks for your industry may indicate your business has room for improvement.

It may also be worthwhile checking you reported all income and accounted for any trading stock you may have used for private purposes, as these can affect your results. Certain businesses can use amounts we accept as estimates, check if they are available for you.”

65. The document proceeded to identify, inter alia, the ratios of total expenses as a proportion of turnover, labour as a proportion of turnover, and rent as a proportion of turnover, for restaurant businesses with various amounts of turnover. For businesses with a turnover between $65,000 and $500,000, the benchmark ratios were:

1. total expenses/turnover: 81%-90%;

2. labour/turnover: 18%-28%, and

3. rent/turnover: 13%-19%.

66. However, senior counsel who appeared at the hearing in this Court disavowed any reliance upon those pages. Indeed, he went further, and said that no judicial notice could be taken of those pages.

67. That cannot be right. I have no doubt – not least because the document was annexed to submissions signed by two barristers in support of the Council’s appeal – that the ATO publishes on its website a series of “Small Business Benchmarks”, one of which is directed to “Restaurants”, and does so for the purposes stated in that document to assist people operating restaurants and their accountants. The benchmark in that document for the financial year ended 30 June 2016 included that for restaurants with a turnover of between $65,000 and $500,000, the rent should be between 13% and 19% of that turnover, while the total expense should be between 81% and 90%.

68. Submissions in this Court proceeded on the basis that s 144 of the Evidence Act entirely supplanted the position at common law. That proposition is supported by what was said in Gattellaro v Westpac Banking Corporation [2004] HCA 6 at [17]; 78 ALJR 394 at [17] and Aytugrul v The Queen (2012) 247 CLR 170; [2012] HCA 15 at [21], and I proceed, favourably to the Council, on that basis.

69. Section 144 provides:

“144 Matters of common knowledge

(1) Proof is not required about knowledge that is not reasonably open to question and is:

(a) common knowledge in the locality in which the proceeding is being held or generally, or

(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.

(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.

(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.”

70. It seems plain to me, as I would presume it seemed perfectly plain to counsel who signed the appellant’s written submissions, that the accuracy of the printout containing the ATO’s restaurant benchmarks is capable of verification by reference to the ATO website, which is a document the authority of which cannot reasonably be questioned. I note that the underlying webpage (which is a file) is both “any record of information” and “anything from which … images … can be reproduced … with the aid of [a computer]” within the meaning of “document” in the Dictionary of the statute. Subsection 144(1) is satisfied. So too is s 144(4). The requisite opportunity to be heard was given, for the reasons stated in relation to ground 3.

71. However, it is one thing for the Court to acquire knowledge, pursuant to s 144, of the ATO’s publication; it is another thing entirely for the benchmark ratio for restaurants with a turnover between $65,000 and $500,000 to be used in order to determine the kiosk turnover of which Ms Papadopoulos was in large measure deprived.

72. For one thing, there are restaurants and there are restaurants. The ATO document categorises restaurants by turnover, but there must still be a very wide range of restaurants with a turnover of between $65,000 and $500,000. Some would be located in high-rental areas (such as inner city buildings and major shopping centres). On the other hand, many suburban and regional restaurants might pay little by way of rent. There must also be a large number of restaurants operating from owned, as opposed to rented premises, for which the rent would be nil, which would prima facie have the effect of reducing the average rent of all restaurants.

73. Secondly, the benchmarks are designed to check the reliability of the figures actually obtained from a restaurateur. This is obvious from their name, and if it were not, it is what the ATO explains on the document itself. They are not designed to derive what the profit would have been on the basis of rent alone. This is also obvious from the document. For example, the ratio of total expenses to turnover ranges from 81%-90% for restaurants with a turnover between $65,000 and $500,000. That is a large range. Consider two restaurants with the same turnover but which are at the extremes of the range. The gross profit of the first (19% of turnover) is almost double the gross profit of the second (10% of turnover). That is to say, the margin of one business is almost double the margin of the other. How can such a benchmark be used with any confidence to estimate profit from expenses?

74. Thirdly, the use by the primary judge of the ATO benchmark was internally contradictory. The calculations by the primary judge produced a turnover of $714,131. But that calculation was based upon the benchmark for restaurants with a turnover of no more than $500,000. The ATO benchmark for the ratio of profit to turnover from $500,000 to $2 million was 9%-14%. Had any figure within that range been applied, the profit would have been less than the primary judge derived. Had the midpoint (11.5%) been used, then the result would have been around a third less.

75. All of this confirms what to some might seem obvious, namely, that while the document published by the ATO may be a useful tool for restaurant operators who know their actual rent and actual turnover and actual profit and can compare the ratios with the benchmarks, they do not meaningfully permit the calculations employed by the primary judge.

76. A fourth difficulty with the calculations of the primary judge is the treatment of taxation. The largest component of the award of damages is the lost profit, which the calculated on the basis of net amounts, after tax. It is not completely clear how $1,991 per week before tax has been reduced to a net weekly amount of $1,486, nor how $597.40 per week has been reduced to a net weekly amount of $550.40, but it is clear that a tax-free threshold has been applied (because of the minor change to the smaller weekly amount). No submissions were directed to the tax treatment of the components of the judgment, and I do not express any view as to whether this component of the economic loss should have been calculated using before or after tax figures. However, there was some evidence that the business was operated through a company. Ms Papadopoulos’s affidavit included the statement that “This loss of business has placed my company in jeopardy of liquidation”. A document dated 1 December 2016 referred to Mr Matters writing “as her company secretary in regard to her corporate and business affairs”. I do not understand that companies enjoy a tax-free threshold.

77. In light of those errors, and the absence of any other probative evidence, the Council submitted that the loss alleged was “speculative in nature” and that Ms Papadopoulos had failed to prove on the balance of probabilities that she sustained some loss or damage in accordance with the approach adopted in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 355; [1994] HCA 4. It was the Council’s submission that in the absence of evidence proving some loss or damage, Ms Papadopoulos was only entitled to nominal damages, relying on Brennan J’s judgment in Sellars at 359:

“In contract cases, a plaintiff may be entitled to nominal damages for loss of the opportunity promised even though the plaintiff fails to prove what, if any, value performance of the unfulfilled promise would have had (Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286 at 301, 312).”

78. It is tolerably clear from the transcript that there was likely to have been evidence of loss available to Ms Papadopoulos, but that the manner in which she sought to tender it led to its being rejected. Counsel for the Council accepted that there was little to no assistance offered to Ms Papadopoulos as a litigant in person with respect to how the matter was to be run at trial. Counsel also properly accepted that no assistance had been offered to Ms Papadopoulos with respect to the need to file a notice of contention should she have wished to challenge the rejection of the evidence prepared by her accountant and the underlying documents, some of which may well have been admissible as business records.

79. It is unnecessary in light of these difficulties, and it is inappropriate in the absence of the underlying documents and submissions on the point, to identify precisely how damages might be calculated. The transcript suggests that there was a voluminous bundle of primary financial material, which the primary judge invited, and which Ms Papadopoulos sought to tender, to which the Council’s objection was successful. In the absence of a notice of contention from the order rejecting the tender, that material was not before this Court, and so it is impossible to express a view as to whether every document sought to have been tendered was not admissible as a business record. It is sufficient to observe that it would be wrong for this Court to accede to the Council’s submission that Ms Papadopoulos should receive nominal damages and there should be no remitter. I am not close to being satisfied that there would be no substantial wrong or miscarriage if a judgment for nominal damages was entered, so as to avoid the need for a new trial. In addition to the inherent improbability that Ms Papadopoulos was incapable of establishing any loss, there was in fact testimonial evidence from an employee of Ms Papadopoulos that the shop took $250,000 in the peak months of December and January, while a letter from Ms Papadopoulos dated 31 October 2016 (tendered by the Council and without limitation) estimated that “my losses are approximately seven thousand dollars per week”.

80. Given that conclusion, it is not necessary to address the smaller component of the judgment, directed to the value of the loss of residential accommodation.

81. Similarly, for the reasons set out above and in light of the orders I propose below, it is not necessary to address the security deposit in the sum of $8,580, which was part of the judgment, which the Council accepted it should pay in its notice of appeal and amended notice of appeal but which it belatedly claimed in its further amended appeal had been provided by way of bank guarantee. If there continues to be a dispute about this, then that too will be a matter for the District Court to determine on remitter.

Conclusion and orders

82. For those reasons, although the Council has failed on most of the issues advanced in this Court, the appeal must be allowed and the matter remitted to the District Court for retrial, confined to the issue of damages, unless the parties can resolve their dispute consensually. The Council’s acceptance of liability makes it appropriate to substitute an unquantified judgment in favour of Ms Papadopoulos. Given the regrettable way in which the documents sought to be tendered by Ms Papadopoulos came to be excluded, neither party should be confined to the evidence adduced at the first trial.

83. The Council has succeeded in setting aside the money judgment against it. However, it has failed in its primary submissions in this Court. I see no reason for Ms Papadopoulos to bear any of the Council’s costs in this Court, in circumstances where the occasion for Council’s appeal has been Council’s own failure to provide the primary judge with the assistance he sought and to which he was entitled. Nor is there any occasion to interfere with the order made by the primary judge that the Council pay Ms Papadopoulos’ expenses as agreed or determined by his Honour.

84. It would be surprising in the light of such evidence as is available if in fact Ms Papadopoulos suffered no loss as a result of the wrongful conduct of the Council. The costs of the new trial will be in the discretion of the court on remitter, but it may be expected that if it is necessary for there to be a further hearing, which results in an award of damages, then Ms Papadopoulos would be entitled to the costs of that hearing. If she is unrepresented, those costs will be limited to her expenses and disbursements.

85. It is to be expected that the Council and those advising it will be conscious of the public funds and resources which have been consumed to date by this litigation, and will take especial care to ensure that such dispute as remains is resolved in accordance with the provisions of Pt 6 of the Civil Procedure Act 2005 (NSW) and the ethical constraints to which they are subject.

86. I proposed the following orders:

1. Appeal allowed in part.

2. Set aside the judgment entered in favour of Ms Papadopoulos on 6 July 2018 in the amount of $147,835.32, and in lieu thereof enter judgment in favour of Ms Papadopoulos against the Council.

3. Remit the proceeding to the District Court for further hearing, confined to the issue of damages.

4. No order as to the costs in this Court, with the intention that the Council bear its own costs of the appeal.

87. McCALLUM JA: I agree with Leeming JA.

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Decision last updated: 19 July 2019