Austral Brick Co Pty Ltd v Rami El Hayek t/as RCV Stoneworks

Service of notices of hearing 22Austral Brick claims that it did not receive either of the two relevant notices of hearing. Austral Bricks' counsel submitted that on the balance of probabilities, having regard to the mail process, the letters if received would have made their way to Mr Spackman. While this may seem unusual, particularly where other notices from the Tribunal similarly addressed were received, it was submitted that there is no evidence that tends to show that the notices were in fact sent by the Tribunal to Austral Bricks. 23RCV Stoneworks submitted that Austral Bricks' evidence, given by Avery Spackman and Alicia Llamas, establishes only that Austral Bricks had procedures in place for dealing with incoming mail. RCV Stoneworks submitted that the evidence given at the hearing in this Court is no more compelling than the matters relied on by the Tribunal Members who, in their respective notices of order, cited their knowledge of a system utilised by the Registrar of the Tribunal for sending notifications of hearing dates to parties in finding that the notifications had been duly served on Austral Bricks. 24According to RCV Stoneworks it was inherently unlikely that two notifications apparently properly addressed would not have been received by Austral Bricks, particularly when other notices from the Tribunal both in these proceedings and in other matters were received. RCV submitted that the most likely position was that in each case the notice was received but the plaintiff's system for dealing with incoming mail failed or that once delivered to Mr Spackman, it was simply overlooked or placed in the wrong file. Or to put it another way, as was said by Counsel for RCV Stoneworks to badly paraphrase Oscar Wilde, "To not receive one notice of hearing may be regarded as misfortune but to not receive both starts to look like carelessness."

Austral Bricks' evidence 25I will briefly refer to the evidence given by Austral Bricks in relation to service of the notices of hearing. Austral Bricks relied on two affidavits of Avery Spackman dated 27 November 2012 and 12 February 2013, the affidavit of Andrew Azzi dated 27 November 2012 and two affidavits of Alicia Llamas dated 23 November 2012 and 20 March 2013. Mr Spackman was cross-examined. 26The internal procedure of Austral Bricks, for dealing with incoming mail, is as follows. The notices dated 8 March 2012 and 21 August 2012 issued by the Tribunal were addressed to Austral Brick Co Pty Ltd t/as Austral Bricks at 738-780 Wallgrove Road, Horsley Park NSW 2175. This is the correct address. Austral Bricks shares that address with its parent company, Brickworks Ltd, although the two companies have separate offices. All mail received at 738-780 Wallgrove Road is initially dealt with in the office of Brickworks Ltd, where it is sorted and placed in pigeonholes. There is one pigeonhole specifically for mail addressed to Austral Bricks. 27Every day Ms Llamas, the personal assistant to Austral Bricks' General Manager Mr Ellenor, collects Austral Bricks' mail from its pigeonhole and takes the mail to Austral Bricks' office for distribution. Mr Spackman is Austral Bricks' sales manager and he is responsible for all matters concerning Austral Bricks in the Tribunal. If Mr Spackman is on leave, Ms Llamas gives mail from the Tribunal to Mr Ellenor. Mr Spackman was on leave between 4 and 20 July 2012 but nothing turns on this, as the notices of hearing were not issued during this time. However, Mr Spackman is obliged to travel in his job so he is not in the office every day. 28Where mail is addressed to a particular person, Ms Llamas gives the mail, still in its envelope, to that person. However, Mr Spackman's evidence is that the mail is opened by the mailroom that belongs to Austral Bricks (T 11.27). The notices are date stamped by the time Mr Spackman receives them (T 11.46). He could not tell who arranges the date stamping but that happens in Brickworks' office (T 11.48). The notice advising of orders made at the hearing that took place on 4 October 2012 bears a date stamp of 8 October 2012 (T 15.43). Mr Spackman gave the following evidence (T 16.6-26): Q. What do you say, you did not look at your mail? A. No I am saying that may have been received at the Brickworks' office on 8 October and I would say to you that the date stamp is definitely ours so issue with you, I certainly didn't receive any notice on 8 October or before about the inquiry and I could find out the date of the hearing at the Penrith CTTT and I will tell you that exact date but it was not - I did not receive this notice nor did I know of it at that time. Q. The processes were that the material was received on a daily basis? A. Yes. Q. That Ms Llamas received the Austral Bricks material on a daily basis? A. Yes. Q. And delivered it to you on a daily basis? A. She would deliver it to me. I may not be in the office on that date. I do look after New South Wales so I could be anywhere in New South Wales at any time. Q. You were in the office on 9 October? A. I don't know if I was or not. 29I accept that Mr Spackman did not actually receive the Tribunal's notices of hearing but he admits that he cannot give evidence as to what material was received by Brickworks Ltd. The only person who could (but did not) give that evidence is the person who works in the Brickworks' head office who sorts the mail (T 17.1-19). 30Mr Spackman's evidence is that he received the notice of order, made on 4 October 2012, on or about 9 October 2012 (T 14.48). Prior to receipt of that notice Mr Spackman says that on or around 9 October 2012, he spoke to Mr Azzi and requested him to telephone the CTTT to find out why "we had not received a notice of hearing yet". Mr Spackman was at that time attending the CTTT at Parramatta supporting a builder's claim. The hearing of these current proceedings was listed at Liverpool. Mr Azzi telephoned Mr Spackman back and said, "the rehearing has already been held at the CTTT in our absence". In his affidavit evidence, Mr Spackman stated that he received the notice of order on or about 10 October 2012. I accept that he received the Notice of Order on either 9 or 10 October 2012. Mr Spackman, in cross-examination, agreed that of the 12 notices issued to Austral Bricks, 10 were received (T 24.36). The only two that were not received were the two notices of hearing. 31I accept that Austral Bricks had intended to defend the proceedings and had already obtained and filed in the Tribunal an expert's report of Mr Waights. 32Mr Spackman did not personally receive the notices of hearing. While this is a borderline decision, on the preponderance of evidence, I am satisfied on the balance of probabilities that the notice of hearing of 4 October 2012 was not given to Austral Bricks.

The law on notice provisions 33There are several relevant provisions of the CTTT Act and Consumer, Trader and Tenancy Tribunal Regulation 2009 ("CTTT Regulation") relating to notices issuing from the Tribunal. I shall briefly refer to them. 34Section 25 of the CTTT Act provides for notice to be given of proceedings: "25 Notice of proceedings (1) If any proceedings are to be determined by a hearing, the Registrar must cause notice of the time and place that is fixed for the hearing to be given to each party in the proceedings. (2) If a party who has been notified under subsection (1) fails to attend at the time and place notified, the proceedings may be held in the absence of the party. ... The Registrar must cause notice of the time and place that is fixed for the hearing to be given to ... and any other person the Registrar considers appropriate and any other person prescribed by the regulations for the purposes of this subsection." 35Section 35 provides for each party being given the opportunity to present its case: "35 Opportunity for parties to present case The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity: (a) to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise), and (b) to make submissions in relation to the issues in the proceedings." 36Section 35 provides that the CTTT "must ensure" that each party is given "a reasonable opportunity" to present its case. There are provisions which allow the CTTT a significant degree of flexibility in adapting its procedures to the exigencies of the case in determining the manner in which the proceedings will be conducted. Nevertheless, those provisions should not be construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness - see Italiano v Carbone [2005] NSWCA 177 at [105] and [106]. 37The provision of notices is governed by s 78 which relevantly provides: "78 Notices, service and lodgment of documents (1) For the purposes of this Act, a notice or document may be given to a person (and a document may be served on a person): ... (b) in the case of a body corporate-by leaving it at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate, or ... (3) Nothing in this section affects the operation of any provision of any law or the rules of a court authorising a document to be served in a manner not provided for by this section. (4) The regulations may: (a) provide for additional means of serving, giving or lodging any notice or document, and (b) provide that a notice or document of a class specified by the regulations be served, given or lodged only in the prescribed manner." 38Clause 30 of the CTTT Regulation provides for the consequence of a failure to attend: 30 Ex parte proceedings (1) The Tribunal may proceed to hear a matter in the absence of a party who has failed to attend the hearing: (a) if it is satisfied that notice of the hearing was duly served on the party, or (b) if: (i) being satisfied that service of notice of the hearing has been duly attempted, or (ii) having given directions under clause 50 (6), the Tribunal considers that justice requires that the matter be dealt with in the absence of the party concerned. ..." 39Clause 50 relates to the service of documents. It provides: "50 Service of documents (1) An application for the purposes of any proceedings must be served on each of the other parties within a reasonable time before the return date endorsed on the application by the Registrar or in accordance with directions under subclause (6). (2) Service of a summons is to be effected: (a) personally, or (b) in the case of a company: (i) by ordinary post addressed to the company's registered office, or (ii) by leaving a copy with a person who is apparently of or above the age of 16 years at the company's registered office. (3) Service of any other document may be effected in any manner provided by section 78 of the Act or in any of the following ways: (a) if the person has an address for service on record with the Registry: (i) by pre-paid ordinary post addressed to the person's address for service, or ... (b) in such other manner as may be directed by the Chairperson, a Deputy Chairperson or the Registrar in a particular case. (4) Service by post is taken to have been effected on a person at the end of the fourth working day after the date on which the document was posted to the person. ... (6) The Chairperson, a Deputy Chairperson or the Registrar may, without hearing from the other parties, do any one or more of the following: (a) direct a party to serve an application or any other document on a person who is not a party, (b) direct substituted service to be effected in such manner as the Chairperson, Deputy Chairperson or Registrar considers appropriate, (c) reduce (subject to any relevant Act or law) the time within which service must be effected. (7) This clause has effect subject to the provisions of any Act or law or of any directions of the Chairperson under section 24 (3) of the Act." 40Finally, s 76 Interpretation Act 1987 relevantly reads: "76 Service by post (1) If an Act or instrument authorises or requires any document to be served by post (whether the word "serve", "give" or "send" or any other word is used), service of the document: (a) may be effected by properly addressing, prepaying and posting a letter containing the document, and (b) in Australia or in an external Territory-is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted, ..." 41The operation of these notice provisions in relation to the CTTT have been discussed in Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298; David Harris & Deidre Harris t/as Wellington Concrete v Mayne [2011] NSWSC 1551; and Blue Haven Pools & Spas Pty Ltd v Cunningham & Anor [2011] NSWSC 1435. 42Section 25 does not provide a mechanism for giving notice and does not deem notice to have been given where a particular procedure has been followed. Section 78 provides for a means of service of a document but does not provide for determining if service has been effective. Clause 50(4) of the CTTT Regulation is a deeming provision but is subject to the provisions of any other Act (clause 50(7)). Section 76 of the Interpretation Act 1987 raises a rebuttable presumption of service at a stated time after the date on which the document was posted (see Brennan, Giles JA at [7]-[8]; Basten JA at [50]). 43The statutory provisions require that firstly, under s 25(1) the Registrar must cause notice of the time and place for the hearing to be given to each party to the proceedings. If the parties have been so notified and one fails to attend, s 25(2) allows for the proceedings to be held in their absence. Section 78 provides for service of notice of a hearing to a body corporate by post to the head, registered or principal office of that body corporate. Clause 30 of the CTTT Regulation provides that if a party fails to attend, the Tribunal may proceed to hear the matter if it is satisfied that the notice of hearing was duly served or service has been duly attempted and it considers that justice requires that the matter be dealt with in their absence. 44In Harris v Mayne, Davies J at [36] held that the requirement of s 25(1) is mandatory and proceedings may only be held in the absence of a party under s 25(2) if the requirements of s 25(1) have been complied with. If notice has not been given then neither s 25(2) nor clause 30 is engaged and if clause 30 was engaged, there was no evidence that the Tribunal had satisfied itself that the notice of hearing had been duly served on the party or had been attempted as required by clause 30(1). 45It has been established in Blue Haven Pools & Spas Pty Ltd that the evidence of a copy of the notice on file is insufficient to establish that notice of the hearing had been duly served as required by s 25(1). Adams J at [30] held that the existence of a copy of the notice of hearing on the Tribunal's file raised the distinct possibility that it was posted. However, this did not of itself establish the fact of it being posted as being more probable than not. Adams J was not satisfied that the notice was posted and the Member could not have concluded otherwise simply because a copy of the notice was placed on the file. It did not appear that the Member had considered whether justice required the matter to proceed with regards to Blue Haven (Regulation 30(1)), the party that had failed to appear, and as a result, the requirements of s 35 and Regulation 50(1) were not satisfied. Mere proof of posting the notice would not by itself have resolved the question of whether it was just to proceed despite Blue Haven's absence (at [31]). 46In relation to Austral Bricks, the notice of hearing of 4 October 2012 is on the CTTT file and it correctly records Austral Bricks' postal address. However, a copy of notice of hearing on a file of the Tribunal does not, by itself, establish that it was posted: Blue Haven Pools & Spas Pty Ltd per Adams J at [30]; Harris v Mayne per Davies J at [31]. 47Austral Bricks submitted it was not established that the notice was received by Austral Bricks. It also submitted that its evidence that it was not served with the relevant notices takes the case outside the scope of s 25(2) because it was not a party "who has been notified": Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298 per Basten JA at [65]. 48According to Austral Bricks, no different conclusion can follow from the terms of clause 30 of the CTTT Regulation, or that clause would be inconsistent with the provisions of the CTTT Act: Brennan per Basten JA at [66]. As was said by Adams J in Blue Haven at [31]: "Regulation 30(1] requires explicit consideration to be given to the issue of service and a positive decision made whether justice required 'that the matter be dealt with in the absence of the [missing] party...' ...I am not satisfied that the notice was posted and I do not see how, on the basis that a copy of the notice was placed on the file, the Member could properly have concluded otherwise." 49As previously stated, due to the further evidence given at this hearing, I accept that Austral Bricks had not been served with the notice of hearing of 4 October 2012. There was no evidence that the Registrar caused the notice of time and place fixed for hearing to be given to Austral Bricks. 50Austral Bricks submitted that even if clause 30 were enlivened, it could not be said that there was a positive decision made in relation to whether justice required the matter to be heard in Austral Bricks' absence. According to Austral Bricks, all that was said by the Tribunal on 31 May 2012 was that justice of the case required the matter to proceed because Austral Bricks had failed to appear and RCV Stoneworks was ready to proceed and those matters are merely a precondition to any consideration of the requirements of justice under clause 30; that they cannot in themselves establish that justice requires that a case proceed in a party's absence. 51Austral Bricks submitted that it follows that the Tribunal's purported decisions on 4 October 2012: (a) lacked jurisdiction; and (b) denied procedural fairness to Austral Bricks. In those circumstances, it was submitted that the decisions should be quashed and an order made that there be a rehearing in the Tribunal. 52There can be no doubt that Austral Bricks was entitled to procedural fairness before the Tribunal. Where a party does not receive notice of a hearing, and does not appear, then procedural fairness is denied: Brennan per Giles JA at [4] and Basten JA at [59]. 53In Harris v Mayne, Davies J found that there was no evidence that the Registrar caused Notice of the time and place fixed for the hearing to be given to the plaintiffs (at [34]) and that even if clause 30(2) was engaged there was nothing to suggest that any enquiry was made to ascertain that the correspondence had been forwarded to the plaintiffs and whether it was appropriate to proceed in the plaintiffs' absence (at [36]): "Moreover, even if cl 30 of the Regulation was engaged there was no evidence from anything contained in the transcript of the hearing before the CTTT or otherwise that the CTTT had satisfied itself that Notice of the hearing was duly served on the party or had been attempted as cl 30 (1) requires: Blue Haven at [31]. The highlighted portion in paragraph [20] above is a mere ipse dixit by the presiding Member, presumably because copies of the Notices were on the file. There is nothing to suggest that any enquiry was made to ascertain that the correspondence had been forwarded to the Plaintiffs and whether it was appropriate to proceed in the Plaintiffs' absence: Blue Haven at [31]." 54RCV Stoneworks submitted that the position in these proceedings is different to that in Harris v Mayne because the Tribunal Members on both occasions where the hearing proceeded ex parte turned their mind to the question of service and, having regard to their knowledge of the Registrar's practice, found that notification of the hearing date had been provided to the plaintiff. 55Accordingly, RCV Stoneworks submitted, the Registrar complied with s 25 of the CTTT Act and the proceedings were properly determined under s 25(2) and clause 30 of the CTTT Regulations. Once the provisions of clause 30 of the Regulations are applicable by reason of the operation of s 25(1), it is a matter for the Tribunal to assess whether "justice requires" that the matter be dealt with in the absence of the parties and that it is not a matter that ought to be revisited by the Court. 56So far as whether or not a notice of hearing was given, counsel for RCV Stoneworks referred to Connor v Blacktown District Hospital [1971] 1 NSWLR 713, a decision of the Court of Appeal where Asprey JA (with whom Mason JA agreed), said at 721 that evidence of a relevant practice may be given by a person who: "... has regularly and uniformly performed acts, or has observed the regular and uniform performance of acts by others, under the same circumstances and upon the same occasions, so as to make it appear probable in the minds of reasonable men that, given the same circumstances and occasions, the like acts will again be performed. " 57RCV Stoneworks submitted, applying that principle, the Tribunal Member could draw an inference, due to both a copy of the notice being on file and because of his knowledge of the Registrar's usual practice, that the notice had been served. The Tribunal Member having turned their mind to it, it was a finding of fact and as such, should not be revisited. 58On 4 October 2012, the Tribunal Member stated that he was satisfied that in accordance with the Registrar's usual practice, the notice of the hearing had been posted to Austral Bricks. However, the Tribunal Member did not indicate whether he considered that it was in the interests of justice to proceed in Austral Brick's absence. The Tribunal Member stated only that: "There is no reason therefore as to why the previous decision of the Tribunal should be disturbed." 59The Tribunal Member did not address all parts of the statutory test. As was said by Adams J in Blue Haven at [31]: "Mere proof of posting the notice, even had it been forthcoming, would not by itself have resolved the question whether it was just to proceed despite Blue Haven't absence." 60Hence, on 4 October 2012, in reaching his decision to proceed in the absence of Austral Bricks the Tribunal Member did not properly address the requirement contained in clause 30(b)(ii), namely whether justice requires that the matter be dealt with in the absence of Austral Bricks. 61RCV Stoneworks made a submission that that Austral Bricks' application to the Court under s 69 of the Supreme Court Act was premature as it had not exhausted its remedies pursuant to the CTTT Act and Regulations to make an application under s 68(1) of the CTTT Act for a rehearing. Austral Bricks' position is that only one application for rehearing is permitted under s 68. 62Section 68 of the CTTT Act provides: "68 Rehearings by Tribunal (1) A party in any proceedings that have been heard and determined by the Tribunal (the completed proceedings) may, in the manner and within the time prescribed by the regulations, apply to the Chairperson to have the completed proceedings reheard by the Tribunal. (2) The grounds on which such an application may be made are that the applicant may have suffered a substantial injustice because: (a) the decision of the Tribunal in the completed proceedings was not fair and equitable, or (b) the decision of the Tribunal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the completed proceedings were being heard). (3) The applicant may request that the rehearing be limited to the matters specified in the application. (4) If the applicant is relying on significant new evidence as a ground for the rehearing, the applicant must establish or otherwise produce the new evidence in support of the application. (5) The Chairperson is not to grant the application unless: (a) each other party in the completed proceedings has: (i) been notified and given a copy of the application, and (ii) been given an opportunity to respond in writing to the application within the time prescribed by the regulations, and (b) the Chairperson has taken into consideration any such response. (6) Subsection (5) does not apply in relation to such classes of applications as may be prescribed by the regulations. (7) The Chairperson is not to grant the application unless it appears to the Chairperson that the applicant may have suffered a substantial injustice. (8) The Chairperson's decision whether to grant or refuse the application: (a) may be made without the need for any hearing or meeting, and (b) is not to be considered to be part of the Tribunal's proceedings, and (c) is final and not subject to review of any kind. (9) If the application is granted, the Chairperson is to determine: (a) the constitution of the Tribunal in a manner appropriate for the purposes of the rehearing (having regard to the circumstances of the case), and (b) the matters that are to be reheard. (9A) If an application is refused, a person may make a further application under this section, but only if the application is made within the time prescribed by the regulations and the Chairperson is satisfied that: (a) significant new evidence has arisen since the application was refused, and (b) that evidence suggests a substantial injustice to one or more parties to the proceedings has occurred. (10) The rehearing is to be dealt with by the Tribunal as a fresh hearing of the matters to be reheard, but it does not give rise to any further rehearing under this section. (11) Subsection (9) does not prevent the Tribunal from dealing with any matter that arises during the rehearing so long as it is a matter that is related to the completed proceedings. (12) If, in relation to any completed proceedings, more than one application for a rehearing is granted by the Chairperson, all of the matters to be reheard are to be reheard together. (13) A person cannot make an application under this section for a rehearing of completed proceedings if: (a) he amount claimed or disputed under the completed proceedings is more than the amount prescribed by the regulations, or (b) the person is a corporation and the matter relates to a dispute in respect of which the Tribunal has jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010. (14) The regulations may exclude the making of an application for a rehearing under this section in cases of any prescribed class or description." 63Whether or not a further application can be made under s 68 is not clear. Even if more than one application is permissible, it is one of the discretionary factors to be taken in account in determining whether or not the application for judicial review should be granted. I have taken this factor into account and it is my view that the application for judicial review should be granted. This decision of the Tribunal Member dated 4 October 2012 is vitiated by jurisdictional error and should be quashed. 64If a rehearing date is fixed, the Tribunal may consider, in addition to the usual method of service by post, a scanned copy of the notice of hearing be forwarded to Mr Spackman by email to ensure that Austral Bricks has been notified of the hearing date. 65Costs are reserved.

The Court declares that: (1) The decision of the Consumer, Trader and Tenancy Tribunal of 4 October 2012 numbered GEN 12/32636 is vitiated by jurisdictional error.

The Court makes an order (2) In the nature of certiorari removing into the Court the decision of the Consumer, Trader and Tenancy Tribunal of 4 October 2012 numbered GEN 12/32636 and quashing that decision.

The Court furthers orders that: (3) Matter number GEN 12/32636 is remitted to the Consumer, Trader and Tenancy Tribunal to be determined in accordance with law. (4) Costs are reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2013