Zivkovic v Style Craft Blinds

[2002] NSWSC 1024

CITATION:	ZIVKOVIC v STYLE CRAFT BLINDS & ORS [2002] NSWSC 1024
FILE NUMBER(S):	SC 30013/01
HEARING DATE(S):	15/03/2002
JUDGMENT DATE:	1 November 2002
PARTIES :	Appellant - Slobodan Zivkovic First Respondent - Style Craft Blinds and Awnings Pty Ltd Second Respondent - Fair Trading Tribunal
JUDGMENT OF:	Dowd J

LOWER COURT JURISDICTION :	Fair Trading Tribunal
LOWER COURT FILE NUMBER(S) :	BU 2000/05763
LOWER COURT JUDICIAL OFFICER :	N/A

COUNSEL :	Appellant - Ms B Vukadinovic First Respondent - Mr H Shore Second Respondent - submitting appearance
SOLICITORS:	Appellant - Anthony & Associates Respondent - Goldrick Farrell Mullan
CATCHWORDS:	Appeal from tribunal - allegation of denial of natural justice - sustained as to part of the claim.
LEGISLATION CITED:	Fair Trading Tribunal Act (1998)
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Kioa v Minister for Immigration and Ethnic Affairs (ALR) (1985) 159 CLR 550 Sullivan v Department of Transport (1978) 20 ALR 323
DECISION:	(1) Appeal allowed; (2) Record of second respondent brought up; (3) Decision of the second respondent quashed in part; (4) Matter remitted to second respondent for a hearing de novo on original application.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DOWD J

1 November 2002

30013/01 Slobodan Zivkovic v Style Craft Blinds and Awnings Pty Ltd & ors

JUDGMENT

1 DOWD J: This was an appeal from the Fair Trading Tribunal, Home Building Division (the “Tribunal”) by way of summons, where the appellant brought proceedings against the first respondent. The second respondent’s members were the decision makers in two proceedings before the Tribunal.

2 The appellant’s application was heard by the Tribunal on 16 October 2000, the claim being initially, for removal of an awning attached to his property by the first respondent as it was not fit for the purpose for which it was intended and purchased, and for refund of the monies paid. The Tribunal also heard a claim for damages to the appellant’s property consequent upon the erection of the awning.

3 On 29 November 2000 the appellant applied to the Tribunal seeking a re-hearing under s63 of the Fair Trading Tribunal Act (1998) (the “Act”) seeking a review of the earlier decision, which review was refused.

4 The appellant alleged that in the two hearings the appellant was denied natural justice and/or procedural fairness and made the following allegations:

a. The second respondent made the decision without allowing the appellant an opportunity to be heard in relation to the purpose of the awning, the unsuitability of the awning, the damage arising as a result of the installation of the awning, the defects apparent once installation of the awning had occurred, and other related matters;

b. The second respondent did not determine the issue of the unfitness of the awning for the use for which it was purchased which was the subject of the appellant’s claim as filed with the Tribunal in May 2000;

c. The second respondent did not convey to the appellant his right to object to service of the first respondent’s expert’s report on the day of the hearing; or

d. The second respondent did not convey to the appellant the implications of accepting the tender of the first respondent’s expert’s report on the day of the hearing without having had the opportunity to reply to the report;

e. The second respondent ordered that the experts for each of the parties produce a joint report and did not take action on the first respondent’s breach of the Member’s Directions of 8 August 2000;

f. At the hearing of 16 October 2000, the second respondent did not explain to the appellant the likely prejudice to the appellant of not adjourning the proceedings for the first respondent’s failure to comply with the Directions of 8 August 2000;

g. The second respondent in his decision wrongly stated that the appellant agreed to proceed to a hearing on 16 October 2000 when no such option was put to the plaintiff;

h. At the hearing of 8 August 2000 when the appellant amended his claim to include a breach of duty of care, the second respondent did not explain to the appellant what elements are to be determined in a claim for damages for breach of duty of care;

i. The second respondent made his decision without allowing the appellant an opportunity of calling extra witnesses, submitting relevant evidence and cross-examining witnesses.

5 The appellant claimed the second respondent had a duty to act fairly and failed to discharge that duty in that:

a. Mr Durie took into account irrelevant considerations in making the decision of 16 October 2000:

i. The erroneous evidence of the experts G H Larkin and Keighran & Associates Pty Ltd with respect to the alleged modifications to the home.

b. Mr Durie failed to take into account relevant considerations:

i. The evidence of expert, Mr Milinkovic, MIEAust CPEng;

ii. The weight of the evidence of Mr Janicijevic, Mr Rosic, Ms Rosic, Ms Kovacevic; and

iii. Ignored the evidence of the appellant and his wife Mrs Zivkovic.

c. The decision of Mr Durie was so unreasonable that no reasonable person in his position would have made the decision;

d. Mr Durie failed to consider the substance of the appellant’s submissions and evidence and wrongfully disregarded these;

e. Mr Durie failed to bring to the appellant’s notice his right to object to the late service of the evidence of the first respondent;

f. Mr Durie failed to conduct the proceedings in a fair manner having regard to the appellant’s lack of legal representation and lack of knowledge of the law;

g. Mr Mallam on determining the application for review failed to take into account relevant considerations:

i. The evidence of expert, Mr Milinkovic, MIEAust CPEng;

ii. The weight of the evidence of Mr Janicijevic, Mr Rosic, Ms Rosic, Ms Kovacevic;

iii. Ignored the eidence of the appellant and his wife Mrs Zivkovic;

iv. The decision of Mr Durie as being so unreasonable that no reasonable person in his position would have made the decision;

v. Mr Durie’s failure to consider the substance of the appellant’s submissions and evidence and wrongful disregard of these;

vi. Mr Durie’s failure to bring to the appellant’s notice his right to object to the late service of the evidence of the first respondent;

vii. Mr Durie’s failure to conduct the proceedings in a fair manner having regard to the appellant’s lack of legal representation and lack of knowledge of the law.

6 The appellant therefore claims:

a. A declaration that the appellant was denied natural justice or procedural fairness by the second respondent.

b. An order in the nature of certiorari setting aside the decision of the second respondent dated 16 October 2000, in matter number BU2000/05763.

c. An order in the nature of certiorari setting aside the decision of the second respondent dated 24 January 2001, in matter number BU2000/05763.

d. An order that the matter be remitted to the second respondent for a hearing de novo.

e. Costs.

Jurisdiction

7 Part 6, which includes s60 of the Act provides in subs 60(3)(b) that the court may grant a judgment or order in the nature of prohibition, mandamus, certiorari or other relief where a party to the claim has been denied natural justice. There are otherwise, only appeals to this Court on questions of law. Section 63 of the Act provides for re-hearing which, in fact, occurred, as set out above, in these proceedings.

8 The issue the appellant must establish is the denial of natural justice by the Tribunal to be entitled to relief.

Facts

9 The appellant and his wife purchased their current dwelling in Homebush West in 1997, it appearing that the house had been erected prior to 1977 with a separate garage at the rear erected sometime thereafter. Subsequently a billiard room and balcony were erected on top of the garage with stairs to gain access to the upper level.

10 The appellant called the first respondent for a quote to install an awning to attach to this building. Measurements were taken and a quote provided and an extendable awning installed in pursuance of that quote. The awning was 6 metres in width and extended out 3.6 metres. The purpose of the awning was for shade.

11 A few days after installation of the awning the mounts, which fixed the awning to the garage, started to pull away. The first respondent was notified and shortly afterwards two workmen attended the premises and attached a rope tying the mounting to the balcony. The first respondent’s evidence was that this was to prevent its use while a solution was worked out. The appellant opened out the awning in January 2000 and found that the middle of the awning was sagged, that a light breeze caused the awning to billow out and that consequent vibrations were felt to the timber of the first floor of the garage and within the structure of the whole building.

12 After contacting the first respondent, Mr Godsell a manager of the first respondent and two workmen fixed the awning to the wall of the garage by rods and secured the awning to the wooden beams of the balcony and from the floor of the second level of the garage. The original holes from the first attempt at mounting were not repaired.

13 The appellant thereafter observed cracks in the structure of the garage which he had not previously seen. There were discussions between the parties which resulted on 27 April 2000 in the first respondent offering to purchase the awning for five hundred dollars leaving the balance of four hundred and eighty five dollars still owing and then remove it from the garage or, alternatively, offering to sell the awing as a second hand product in situ.

14 The appellant brought an application for resolution of this dispute before the second respondent, the claim seeking a total refund of monies paid and the removal of the awning.

15 The application came before Member Durie on 8 August 2000 where the question of damage to the garage building was raised. Directions were given for the filing of expert reports and a request made that the experts confer as to points of agreement and disagreement.

16 There was evidence from the appellant of damage to the garage with a quote dated August 2000 of nineteen thousand one hundred and twenty seven dollars ($19,127.00) to repair the damage to the building.

17 The expert report of the first respondent was not served until the day of the hearing which was 16 October 2000 which proceeded before Mr Durie at which hearing the reports were admitted before the Tribunal together with statements of lay witnesses, photographs and certain oral evidence was given. The application was dismissed.

18 An application for re-hearing was made before Member Mallam of the Tribunal on 24 January 2001 and was also dismissed.

19 The appellant’s evidence before the Court was that it was not explained to him as to the evidence the Tribunal would require and it was not explained to the appellant what legal issues he or his experts would have to address nor the onus of proof and as a lay person the appellant expected assistance and direction from the Tribunal as to these matters.

20 The appellant further alleged that he was not able to test the evidence of the first respondent’s expert reports and was not given an opportunity to call further evidence and that the appellant said that he was not given the opportunity to explain fully, in his own words and his own time, the matters that were of concern to him about the fitness of the awning and the damage arising as a result of the installation of the awning and the defects which became apparent once it was installed.

21 There was exhibited before this Court the decision of the second respondent delivered by Member Durie and the transcript of the hearing which took place on 16 October 2000.

The Appellant’s Case

22 The first ground of appeal was that under s27 of the Act there are certain procedures that the Tribunal must follow in proceedings before it, that natural justice and procedural fairness be observed, and it was submitted that the member of the Tribunal did not carry out those procedures. In particular, that the case, which the application brought, was for removal of the awning and a refund but at the hearing of 8 August 2000, as a result of some “without prejudice” negotiations, the issue arose as to the consequential damage to the appellant’s property.

23 It was then submitted, on the appellant’s behalf, that the appellant and his wife did not understand what was going on and that by introducing the additional claims, which arose out of the settlement discussions, it was the member of the Tribunal who introduced those issues and that his conduct was, therefore, inappropriate.

24 It is further suggested that in the expert reports that were to be filed there was no indication as to what issues were to be addressed.

25 It was further submitted on behalf of the appellant that the member failed to explain the procedure and the likely prejudice that would be suffered in not putting the report, which was served late, to another expert or getting a joint expert report as had been directed by the member and, therefore, the appellant was denied procedural fairness and then that he was not aware this option was open to him and that the member owed a further duty to make greater effort with people for whom English was obviously a second language.

26 It was further contended, on behalf of the appellant, that the legal issues involved in establishing duty of care and negligence were not explained and that the hearing was more in the nature of a “free-for-all” argument as to who was right and who was wrong and that there was no structure to the proceedings.

27 It was further alleged that some greater assistance should have been given in relation to the questions asked. It should be noted that during the course of the hearing before this Court, it was conceded by the appellant’s counsel that the additional allegation as to the resulting damage due to the installation, became an issue for both parties before the Tribunal but it was submitted that the member did not decide the initial question.

28 The appellant further submitted that the Tribunal did not look at the photographs which show the awning clearly to be faulty and that the member’s decision largely dealt with the issues of negligence and contract and damages and that the separate law relating to these different issues were not explained to the appellant.

29 The appellant relies on the judgment of Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 in which he stated:

“If a statutory Tribunal is required to act judicially it must act rationally and reasonably”.

The appellant says that procedural fairness was not accorded the appellant as appears from the judgment and evidence.

30 The appellant further relied on the judgment of Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 344 concerning a refusal to grant an adjournment and the appellant contended an adjournment of the proceedings would have allowed them to seek further evidence.

31 Mr Shore for the first respondent submitted that assistance was provided as appropriate and that a hearing was afforded. It was submitted that the member of the Tribunal was looking to the interest of the appellant in widening the claim and that he turned his mind to the correct questions and examined the issue of the defectiveness of the wall and the piers and foundations in the garage.

32 Mr Shore further put it that the appellant made it quite plain that the principal issue was negligence and breach of duty of care at the time of the hearing before Member Durie occurred.

33 It was further put, on behalf of the first respondent, that adjournment was available to the appellant, that late service of the report was conceded but that happens in a very large number of legal proceedings and there was nothing unusual about that occurring.

34 It was put to this Court, on behalf of the first respondent, that neither of the expert reports indicates that the awning was defective. But, I must observe, that the reports were not in substance dealing with the question of the fitness of the awning at all, but rather, on the effect that it may have had on the building.

Tribunal Procedure under the Act

35 Section 27 of the Act sets out the procedure of the Tribunal which may determine its own procedure and is not bound by the rules of evidence and may inform itself in any way that it thinks fit. Subsections 27(3), (4) and (5) of the Act provide:

27 (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 of legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties to the proceedings before it 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 before it 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 at any stage any proceedings before it for want of prosecution by the applicant or at the request of the applicant, and

h. may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or for any other reason that appears to it sufficient.”

36 Points c – i set out in the Summons and the allegations a – g of breach of duty and failure to discharge the Tribunal’s duty substantially relate to the hearing in relation to the question of damage to the building and breach of duty of care. An examination of the evidence and the issues raised before the hearing on this issue under the powers and duties of the Tribunal conferred on it by the Act have, in my view, substantially been complied with. This was an issue which arose as a result of discussions between the parties but was clearly adopted by the appellant and respondent as the major issue in the hearing, at least in fiscal terms. It cannot be said that the appellant did not understand the issue since he produced a relevant report which was tendered in evidence, clearly on his instructions.

37 The appellant clearly understood that the issue of damage to the garage was before the member and it appears to this Court that any complaints that have been raised are issues of law or determinations of fact which cannot be brought before this Court. In terms of natural justice, in terms of procedures of the Tribunal, I consider that the issues relating to the hearing before the Tribunal as such, substantially dealt with that issue of fault and damage to the garage, whether the appellant be happy with those proceedings or not.

38 Even though the appellant contends that more notice should be taken of his expert’s evidence and his evidence and the evidence brought on his part this was clearly, on the question of contract and duty of care and consequential damage, dealt with by the member and, in my view, no question of denial of natural justice arises on that account.

39 In relation to the first two points, which concern the appellant being heard as to the purpose and suitability of the awning and the question of the unfitness for its use, the evidence, photographs and description were clearly before the member, which was the original reason for the bringing of the application, does not appear to have been dealt with at all. The member simply refers to the fact that there appears to be an agreement as to the means of fixing the awning to the wall at one stage and thus disposes of that issue in his reasons for his determination.

40 The greater question of the more expensive damage to the building naturally consumed most of his contemplation but should not have detracted from the fact that the original dispute brought, clearly related to the fitness of the awning and the question of its removal. Whatever the circumstances of the taking of the photographs which were admitted in evidence the awning does not appear from the photographs to be aesthetic nor sufficiently taut to prevent the wind to cause it to billow and its use prevented as people are unable to walk under it because of the way it hangs below the frame itself.

41 In terms of the authorities referred to above I consider that in relation to the hearing of a determination of the matter, which is the fitness of the awning and the way in which it is attached and the remedies sought against the first respondent, there has been a denial of natural justice and that the appellant is entitled to a hearing on that issue, since there was almost no evidence at the hearing on that issue and the appellant was not directed or guided to address it. The Tribunal failed to adequately deal with the fitness of the awning and deprived the appellant of the hearing to which he was entitled.

42 It should, however, be understood that in the event of a further hearing that nothing relating to the consequential damage to the building should be included within that hearing and that it should be confined simply to the fitness of the awning for the purpose for which it was acquired and the way it was attached. The evidence before the Tribunal clearly was that it was intended for shade only and that it was designed to be retracted rather than be used for any other purpose.

43 Accordingly, the appellant should succeed in part as to the proceedings before this Court as he was denied natural justice on the issue raised by him in the original application. In terms of the law particularly as articulated in Kioa v Minister for Immigration and Ethnic Affairs (ALR) (1985) 159 CLR 550 the appellant became, under s60 (1) of the Act, entitled to prerogative relief in the nature of certiorari.

44 I would, therefore, propose the following Orders:

1. That the appeal be allowed;

2. That the record of the second respondent dated 16 October 2000 in matter number BU 2000/05763 be brought up to this Court;

3. That the decision of the second respondent dated 16 October 2000 in matter number BU 2000/05763 be quashed in so far as it relates to the matters contained in the original application which sought the removal of the awning and reimbursement of the cost of such awning;

4. That the matter be remitted to the second respondent for a hearing de novo on the question of the removal of the awning and reimbursement of the cost of such awning.

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Last Modified: 01/06/2003