Anthony v Chris Savage Pty Ltd & Anor

LOWER COURT Fair Trading Tribunal; Consumer, Trader & Tenancy Tribunal JURISDICTION : LOWER COURT BU2000/5370; HB02/27309 FILE NUMBER(S) : LOWER COURT Member Smith; Member Moore JUDICIAL OFFICER :

• 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10309/03 Christina Anthony v Chris Savage Pty Ltd & Anor

Judgment 1 His Honour: Christina Anthony seeks extension of the time for appeal and (subject thereto) appeals from two decisions of the Consumer, Trader and Tenancy Tribunal made respectively on 27 February 2002 and 19 December 2002. 2 The notice of appeal was filed on 6 February 2003. Time for appeal, subject to any extension of time, is 28 days. 3 The appeals are limited to questions of law. 4 The first proceeding (BU2000/5370) was commenced by application filed on 2 May 2000 in the Fair Trading Tribunal, which is constituted under the Fair Trading Tribunal Act 1998. Under transitional provisions, that proceeding continued before the Consumer, Trader and Tenancy Tribunal which is constituted under the Consumer, Trader and Tenancy Tribunal Act 2001. 5 The second proceeding (HB02/27309) was commenced by application filed in the Consumer, Trader and Tenancy Tribunal on 18 June 2002. 6 In this judgment, I will refer to both tribunals as "the Tribunal". 7 In the first application, Mrs Anthony, joined Chris Savage Pty Limited as respondent, claiming a money order for $37,470 as compensation for alleged non-performance by the respondent of a contract made on 3 December 1997 to supply and install mouldings on a house property owned by her. 8 On 18 July 2000, the installers Joseph and Justina Stephens, trading as J & J Traditional Rendering & Plastering, were joined as a second respondent. 9 On 28 November 2000, the applicant and the two respondents entered into a written agreement for the supply by Savage and installation by J & J of a fresh set of mouldings to the same design and quantity as previously, but with certain explicit and particular warranties as to fitness. The agreement provided a timetable for the supply and installation of the new mouldings. It included provision for payment by Savage to the applicant of a specified sum of money by a specified date. The agreement further provided that the parties otherwise released each other from all claims and demands in respect of the matters pleaded and claimed in the proceedings. The effect was to substitute the rights and obligations arising under the agreement of 28 November 2000 for the rights and obligations arising under the agreement of 3 December 1997. 10 On the same date, 28 November 2000, the Tribunal, made orders for performance of the agreement (it being within the jurisdiction of the Tribunal to make orders for the performance of work) and also made the following order. 11. Leave is granted to all parties to ask the Registrar at any time prior to 31st March 2001 to relist this matter for further hearing if these orders are not complied with. 11 On 2 March 2001 (that is, within the time specified), the applicant requested that the matter be relisted. 12 On 9 May 2001, the Tribunal extended the dates for performance of the work orders. It also made the following orders. 2. The period of time provided for in Order No. 11 made on 28 November 2000 is extended to 31 August 2001. 3. If no request is made to the Registrar pursuant to Order No. 11 of 28 November 2000, the parties may make written submissions on the issue of costs only. Such submissions are to be filed by 14 September 2001.

In unchallenged evidence before me, the applicant says that orders 2 and 3 above were made by the Tribunal of its own motion and without the consent of the applicant. I proceed on that basis. 13 On 11 September 2001 - 11 days out of time - the applicant requested that the proceedings be relisted. 14 On 14 September 2001, the applicant lodged a statement asserting that the new mouldings supplied by Savage under the orders made on 28 November 2000 were defective, and claiming a money order for damages and costs. 15 On 27 February 2002, the matter again came before the Tribunal. The presiding member of the Tribunal, Mr J Smith, expressed the provisional view that the Tribunal was functus officio in view of the applicant's failure to request that the matter be relisted within the time specified in order 2 made on 9 May 2001. Ms Olsson of counsel, for the applicant, applied for an order extending the time for that request retrospectively. She also submitted that the Tribunal was not functus officio in the absence of a final order having been made disposing of the proceedings. 16 Having heard argument, Mr Smith held that order 3 made on 9 May 2001 operated as a self-executing order and that he had no power to vary the time for compliance with such an order. He made the following orders: 1. The application for orders, other than orders in relation to costs, is dismissed. 2. The second respondents, Joseph and Justina Stephens, jointly and severally, are to pay 25% of the applicant's costs in this matter up to and including 28 November 2000. 3. The first respondent Chris Savage Pty Ltd is to pay 75% of the applicant's costs in this matter up to and including 28 November 2000 plus the whole of the applicant's costs incurred between 29 November 2000 and 31 August 2001 plus the whole of the applicant's costs only in respect of making written submissions on costs incurred between 1 September 2001 and 28 September 2001. 4. The costs are to be as agreed between the parties or as assessed under Division 6, Part 11 of the Legal Professions Act 1987. 5. The respondents are each to pay their own costs in this matter. 17 In the course of his reasons for decision, Mr Smith referred to FAI General Insurance Company Limited v Southern Cross Exploration NL (1987-1998) 165 CLR 268, in which it was held that the Supreme Court of New South Wales had power to vary retrospectively the time for compliance with an order of the Court, thereby avoiding what would otherwise have been the operation of a self-executing order dismissing the proceedings. Mr Smith distinguished that decision on the ground that it did not apply to a statutory tribunal which lacked inherent powers. 18 The Tribunal's determination of 27 February 2002 was erroneous in law for the following reasons. 19 Order 3 made on 9 May 2001 was not a self-executing order, in that it did not provide that the proceedings would stand dismissed in the event that a request for relisting was not made by the specified date. 20 The terms of order 3 demonstrate that Mr Smith was of the opinion that, if no such request was made by the specified date, the proceedings would be at an end save as to costs. Conformably, in his reasons for decision, as conveyed by the notice of order dated 21 March 2002, Mr Smith said as follows: 16. Order No. 3 made on 9 May 2001 operated as a "self-executing" order in that it provided that if no request for a re-listing had been made in accordance with Order No. 11 of 28 November 2000 by 31 August 2001 (extending to that date by order No. 2 of 9 May 2001) then the Tribunal would consider submissions on the issue of costs only. 17. That was quite clearly the intention of the Order and that intention was explained to the representatives of the parties present on 9 May 2001. It was explained that the order was being made with the specific intention of bringing some finality to the proceedings that had already been in the Tribunal for one year. The applicant's legal representative was advised that if the orders made on 28 November 2000 had not been complied with by the time limits as re-set on 9 May 2001, he could seek a money order in the Tribunal to compensate the applicant for any loss suffered as a result of the non-compliance. It was advised to the parties that the issue of liability would not be necessary to prove, but that the applicant would have the burden of proof that there had been non-compliance with the orders. That opportunity, it was explained, was only open until 31 August 2001.

Mr Smith's opinion as to the nature of the order, his subjective intention and his observations to the parties about the intended operation of the order are not material. The order is to be construed according to its terms. 21 The Tribunal was not functus officio even if order 3 of 9 May 2001 was a self-executing order. It had power to vary retrospectively the time for a relisting request with the effect of avoiding the operation of such an self-executing order. The statutory provision giving the Tribunal power to extend the time was in materially identical terms to the court rule under consideration in FAI. That decision did not relate to any inherent power and could not be distinguished on that ground. 22 The order made on 27 February 2002 dismissing the application save as for costs was predicated on Mr Smith's erroneous opinion that the Tribunal was functus officio and was, accordingly, itself erroneous. 23 The order was also erroneous as a matter of reasoning because, if the Tribunal was functus officio as at 27 February 2002, by operation of the earlier order and in the events that had occurred, the Tribunal had no power to make an order ostensibly dismissing the application as at that date. 24 The Tribunal was bound to grant the application for an extension of time. There has been no serious reason for a self-executing order; in particular, there was no history of contumelious default or delay on the part of the applicant as at 9 May 2001. The delay in requesting a relisting had been of short duration. Prejudice to the applicant in refusing her a hearing on the merits of her claim was substantial. There would have been no unfair prejudice to the respondents in extending the time. Refusal of the application to extend the time was so unreasonable as to be one which a reasonable tribunal could not have made in the circumstances of the case. 25 It follows that, subject to time for appeal, the appeal against the determination of 27 February 2002 should be allowed. 26 On 4 April 2002, the applicant applied to the Tribunal for a rehearing. That application was rejected on 9 April 2002. 27 On 18 June 2002, the applicant filed the second application (HB02/27309) joining Savage as the sole respondent. In that application, the applicant claimed an order for a payment of $36,000.68 for the cost of and incidental to the supply and installation of "alternate mouldings". That was a reference to new mouldings supplied under the agreement of 28 November 2000 and which the applicant asserted were again defective. 28 On 29 July 2002, the Tribunal directed that written submissions be filed. That was done and the hearing resumed on 25 September 2002 before Mr Moore, a member of the Tribunal. (The cover sheet of the transcript for 25 September 2002 refers to Mr Smith as the presiding member, but that is incorrect.) Having heard argument, Mr Moore reserved his decision. 29 The determination by Mr Moore was forwarded by notice of order to the applicant's solicitors. It is dated 19 December 2002. (The notice states that the orders were made on 25 September 2002, which is not correct, Mr Moore having reserved his decision on that date.) The orders made, as conveyed by the notice, were as follows. 1. The application is misconceived and accordingly is dismissed. 2. The applicant is to pay the costs of the first respondent, Chris Savage Pty Limited. 30 Mr Moore's reasons for decision, conveyed in the notice, were as follows.

A The original proceedings BU2000/5370 were between the same parties as the present proceedings and sought orders for the payment of $37,470.00 as compensation for defective mouldings as made by the first respondent and installed by the second respondent. B These proceedings were the subject of consent orders on 28/11/00 in which the first respondent was to pay the sum of $6,400.00 and to supply new mouldings to be installed by the second respondent. C As the consent orders contained a work order, the applicant was given the right to relist the application, initially to 31/3/01, but extended to 31/8/01. D Member Mr Jeffrey Smith subsequently held that the purpose of the relisting was to allow the applicant to pursue monetary compensation if the work order was not adhered to by the respondents. E The Member also determined that the failure to relist the application by 31/8/01 effectively meant that the applicant could not pursue orders further to those agreed on 28/11/00. F The result of the orders of 28/11/00 and subsequent determinations in proceedings BU2000/5370 is that the applicant's claim for compensation arising from the fabrication and installation of the moulding at her premises, has been finally determined. G The failure of the applicant to relist the application in the time provided gives rise to an issue estoppel in respect of any further compensation claim against the respondents arising from the supply and installation of the mouldings at the applicant's premises in Coogee. 31 The applicant's solicitor first saw the notice of 19 December 2002 when his office re-opened on 13 January 2003. 32 The notice of appeal filed on 6 February 2003 was some ten months out of time in relation to the decision of 27 February 2002 and a little out of time in relation to the decision of 19 December 2002 after taking into account the court vacation. 33 There is an explanation for the delay relative to the decision of 19 December 2002 involving an injury received by the applicant's solicitor in January 2003. Counsel for the respondent Savage fairly and properly concedes that leave should be granted in relation to the appeal from the decision of 19 December 2002. 34 As to the application for an extension of time in relation to the appeal from the decision of 27 February 2002, the relevant rule is Pt 51A r3(3) of the SCR which confers an unqualified discretion on the court. 35 Counsel for Savage has referred the court to two decisions at first instance by McHugh J, where applications to extend time for appeal after lengths of time similar to that involved in the present case had occurred: Gallo v Dawson (1990) 93 ALR 479; Re Commonwealth of Australia; Ex Parte Marks (2000) 75 ALJR 470. His Honour was of the view that, where there is delay of that order, the circumstances would have to be exceptional to warrant an extension of time. However, the over-arching consideration is whether the strict application of the time limitation will or may occasion injustice: Gallo (supra); Re Manchester Economic Building Society (1883) 24 Ch D 488 per Bowen LJ; Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27; Moulieux v Girvan NSW Pty Ltd (rec and mgr apptd) (NSWCA, 20 September 1991, unreported, Kirby P, Priestley and Handley JJA). 36 The present case is exceptional and the refusal to extend time would occasion injustice. When the applicant's legal advisers opted to proceed as they did following the decision of 27 February 2002, rather than appeal at that stage, there was at least a prospect that the Tribunal would reverse its decision on reconsideration and then that the Tribunal would entertain the fresh application. 37 In the latter regard, it was at least reasonably arguable that the applicant was not estopped by the earlier determination: first, because as at 31 August 2001 (when the order of 9 May 2001 was said to have operated to terminate the proceedings) no claim had been notified to the Tribunal for monetary compensation for non-performance of the agreement of 28 November 2000 (that claim having first been notified on 14 September 2001); and, secondly, because of the Tribunal's statutory charter "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" (Consumer, Trader & Tenancy Tribunal Act 2001, s28(3)). 38 For the applicant's legal advisers to act as they did in these circumstances was not unreasonable. There was no serious delay in the prosecution of proceedings before the Tribunal following the decision of 27 February 2002. On the evidence led on the hearing before me, the applicant has a bona fide claim supported by evidence which the Tribunal would have entertained under the original application but for the decision of 27 February 2002. The respondent Savage suffers no unfair prejudice, not being the beneficiary of any favourable determination of the claim made against it on the merits, and knowing soon after the decision of 27 February 2002 that the applicant intended to continue to prosecute her claim notwithstanding that decision. 39 For these reasons, the time for appeal in relation to the decision of 27 February 2002 should be extended to accommodate the appeal. 40 As for the appeal from the decision of 19 December 2002, it is unnecessary for me to decide whether the Tribunal erred in holding that the applicant was estopped from prosecuting her claim for monetary compensation for non-performance of the agreement of 28 November 2000, if the decision of 27 February 2002 were to stand. The earlier decision is foundational to the later one. The consequence of my decision that the appeal from the earlier decision should be allowed is that the appeal from the later decision must also be allowed. 41 The proceedings should be remitted to the Tribunal for redetermination in accordance with this judgment. It would be appropriate, in that regard, for the Tribunal to relist both applications for hearing and determination concurrently so that all outstanding matters (including costs) may be determined at the one hearing. 42 Counsel should bring in short minutes of order to implement this decision, including proposed orders in relation to the costs of the appeals. -o0o-

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