Blue Haven Pools & Spas Pty Ltd v Cunningham & Anor

Judgment Introduction 1Blue Haven Pools and Spas Pty Ltd (Blue Haven), the plaintiff, brings proceedings by way of a further amended summons commencing an appeal under Part 50 of the Uniform Civil Procedure Rules 2005 filed in court on 24 February 2010 seeking ( inter alia ) orders quashing or setting aside the "decision of and orders made by the [NSW Consumer, Trader and Tenancy Tribunal] on 2 February 2010" and remitting the matter back to the Tribunal for rehearing. The dispute giving rise to the decision of the Tribunal, by which Blue Haven was ordered to pay Leanne Cunningham, the first defendant, the sum of $21,862.50, results from renovation work carried out by Blue Haven on a pool on Ms Cunningham's property. 2The Tribunal was joined as the second defendant. It filed a submitting appearance and took no active part in the proceedings. Background 3Between April and November 2008 Blue Haven carried out renovation work on Ms Cunningham's pool. In December 2008 Ms Cunningham contacted Blue Haven regarding a number of lifting copingstones situated around the pool. Between 23 January and 1 June 2009 she made several telephone calls and sent a number of letters to Blue Haven regarding rectification of the defects and its representatives undertook work on the pool but, she maintained, failed to properly rectify those defects. Under letter dated 24 July 2009 she wrote to Blue Haven stating ( inter alia ) "[s]hould the defect not be rectified by this date, we will lodge a formal complaint with the Department of Fair Trading". It was uncontroversial that the Department issued a rectification order with which Blue Haven did not comply. In response to this failure, Ms Cunningham wrote to Blue Haven by letter dated 13 November 2009 stating, "[t]he defective Works (sic) affected by this Order have not been rectified and we consequently confirm to Blue Haven our intention to take this matter to the Consumer Trader and Tenancy Tribunal" (emphasis added). 4On 23 December 2009 Ms Cunningham lodged an application with the Tribunal seeking an order for payment by Blue Haven in the amount of $34,512.00 "to pay for rectification of the original defect and repair the damage caused by Blue Haven during their four unsuccessful rectification attempts". Although Blue Haven's Executive Manager (Ms Martinez) and Construction Manager (Mr Chandler) both gave evidence that they did not recall seeing that application, it was accepted by counsel for Blue Haven that a copy of the document was received on 18 January 2010. As a result of the lodgement of the application, the Tribunal generated a "Notice of Hearing" dated 12 January 2010. The notice named Ms Cunningham as the applicant and Blue Haven as the respondent and stated that the application was listed before the Tribunal on "Tuesday 2nd February 2010 at 11:15 AM ... [f]or directions hearing" (emphasis added), informing the parties: "If you do not appear at this time and place, the Tribunal may decide the matter in your absence. The decision made will be binding on you". 5The application proceeded to hearing on 2 February 2010 in the absence of Blue Haven, with the Tribunal ordering it to pay Ms Cunningham the amount of $21,862.50. The Tribunal's written reasons for its decision provide: There was no appearance of the respondent and the matter was dealt with ex parte. The applicant notified the respondent of the defects over twelve months ago and the respondent has made several unsuccessful attempts at rectification. The applicant obtained a written report of the building works prepared by the Office of Fair Trading. A rectification order was made for compliance in respect of the defects by 12 th November, 2009. The respondent did not complete the rectification of the defective works which are clearly set out in the report tendered to the Tribunal. The applicant provides a quote for the rectification of the defects. The Tribunal is satisfied that the respondent is liable for the rectification of the building works and that the cost of rectification as submitted by the applicant is reasonable in the circumstances having regard to the nature of the defect and works required as set out in the quotation. 6Blue Haven lodged an application for a rehearing of the proceedings in the Tribunal on 18 February 2010. On 23 February 2010 the Tribunal made orders staying the orders made on 2 February 2010 and on 24 February 2010 the Tribunal wrote to Ms Cunningham informing her of the application for rehearing and inviting her to provide submissions in respect of the application, which she did on 10 March 2010 by way of objection to the rehearing application. On 11 March 2010, the Chairperson of the Tribunal made orders grantin g Blue Haven's application and setting aside the orders made on 2 February 2010 and listing the matter for directions. The matter was listed for rehearing on 21 April 2010 but was adjourned on 20 April 2010 after Ms Cunningham submitted a written application for an adjournment on 15 April 2010. On 22 April 2010 the Tribunal generated a "Notice of Directions Hearing" listing the date and time for the hearing as "Tuesday 1 st June 2010 at 11:45 AM". The hearing on 1 June 2010 proceeded before Member Connelly of the Tribunal who informed Ms Cunningham and Mr Chandler that he did not think the Tribunal had jurisdiction as the amount claimed exceeded thirty thousand dollars. He informed the parties that the Tribunal would take fourteen days to consider the question of jurisdiction and adjourned the matter without objection. A "Notice of Order" generated to that effect on 1 June 2010 records that the matter was adjourned by "consent". A "Notice of Directions Hearing" was generated on 10 June 2010 listing the matter for directions on "Monday 28 th June 2010 at 9:30 AM". At that hearing the Tribunal made orders setting aside the order granting the rehearing and affirming the original orders made on 2 February 2010. The reasons of the Tribunal were not tendered but the written orders made by it on 28 June 2010 which were annexed to Ms Cunningham's affidavit stated that "[t]he Tribunal has no jurisdiction to entertain the rehearing..." On 14 July Ms Cunningham applied for a garnishee order against Blue Haven and on 21 July 2010 Blue Haven appealed to the District Court under Part 50 of the UCPR. The garnishee order was granted on 18 August 2010 and, on 19 August 2010, Ms Cunningham presented the garnishee order to Westpac Bank; she was advised that there were insufficient funds to satisfy the order. On 30 August 2010 Ms Cunningham and Blue Haven appeared before a Registrar of the District Court. The Registrar adjourned the matter until 14 September 2010 to consider whether the court had jurisdiction to entertain the application. On 14 September 2010 the parties again appeared in the District Court. The Registrar expressed the view that the Court did not have jurisdiction to entertain the application and the parties subsequently consented to an ordering discontinuing the proceedings. 7On 3 November 2010 Blue Haven filed a summons in this court under Part 50 of the UCPR. 8The gravamen of Blue Haven's application in this Court, indeed as it was in the Tribunal and the District Court, is that at no time prior to 2 February 2010 did it receive notification of the hearing set down for that date and that, by proceeding to hear and determine the application in its absence, the Tribunal failed to afford it procedural fairness. Blue Haven also complains that the decision of the Tribunal was "based on quotes only and with no expert reports". In response to the former it is submitted on behalf of Ms Cunningham that Blue Haven did in fact receive notification of the hearing by notice sent to it by the Tribunal and by statements made to Ms Martinez by Ms Cunningham in November 2009 and January 2010. Nature of Blue Haven's Application 9At the commencement of the hearing before me counsel for Ms Cunningham, Mr Emmett, sought to raise an issue in respect of the nature of Blue Haven's application which it is convenient to resolve before addressing the substantive questions in this matter. Shortly put, Mr Emmett contends that Blue Haven's application is an "appeal" within the meaning of Part 50 of the UCPR and is therefore subject to the requirements of Part 50 rule 3 of the UCPR concerning time limitations for lodging appeals in this Court. He submitted that Blue Haven's application was lodged outside the 28 day period, some seven weeks elapsing between the discontinuance of the proceedings in the District Court and the filing of the original summons in this Court, and therefore Blue Haven requires leave to commence the appeal. He naturally submitted that leave should be refused on the basis that the delay in commencing proceedings is unexplained. 10Mr Emmett's submission, as I think, results from the confused wording of the original summons filed by Blue Haven in the District Court and repeated in this Court and which, even after amendment, referred to the application as an "appeal". In written submissions received after the conclusion of the hearing pursuant to a grant of leave by me, Ms Cunningham pointed to the High Court's decisions in Ah Yick v Lehmert (1905) 2 CLR 593, Commonwealth v Brisbane Milling Co (1915) 21 CLR 559 at 576 per Issacs J and Rugani v Director of Police (2005) 222 CLR 489 at [10], [52] and [108] as supporting the contention that the application was an appeal and that it should be treated so because Blue Haven described the application as such. 11Whether an appeal lies to this Court from the decision of an inferior court or tribunal is a matter of statutory construction, the right to appeal being a statutory one (see Builders' Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Mason J). The UCPR does not define, either generally or for the purposes of Part 50, what constitutes an appeal. However, Part 6 of the Consumer, Trader and Tenancy Tribunal Act 2001 (unless otherwise indicated a reference to a section is a reference to this Act and a reference to a regulation is a reference to the Consumer, Trader and Tenancy Tribunal Regulation 2009) governs appeals from the Tribunal and the means of review of its decisions. Section 65(3) provides that a court may, inter alia , grant prerogative relief where the Tribunal makes an order without jurisdiction ( vide s 65(3)(a)) or "in relation to the hearing or determination of the matter [in which] a party had been denied procedural fairness" ( vide s 65(3)(b)). Although a right of appeal in respect of "a question with respect to a matter of law" is given by s 67 to the District Court, this would not seem to cover the matters referred to in s 65(3). Part 6 thus operates to exclude this Court's jurisdiction to entertain an appeal from a decision of the Tribunal. Blue Haven's application cannot therefore constitute an "appeal" for the purposes of Part 50 and, if it were in fact an appeal (which for the reasons stated below, I do not consider it to be) the application must be dismissed. 12By order three of its further amended summons Blue Haven seeks "[t]he decision of and orders made by the [Tribunal] on 2 February 2010 be quashed or set aside", which this Court is empowered to grant in its supervisory jurisdiction (see Kirk v Industrial Relations Commission (2010) 262 ALR 569 at [91]-[100]). While the power to grant the relief sought, namely an order in the nature of certiorari, is contained in s 69 of the Supreme Court Act 1970, it is a power which this Court grants in its original, as distinct from its appellate jurisdiction. This was clearly stated by the High Court in Craig v South Australia (1995) 184 CLR 163 at 175 - "Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdiction error, some failure to observe some applicable requirement of procedural fairness..." 13Notwithstanding the confused wording of its pleadings it is manifest that Blue Haven seeks orders which may only be granted by this Court in its inherent jurisdiction. Proceedings of this kind should not be bedevilled by unnecessary technicality and it seems to me that, there being no discernible prejudice to the parties, I should treat these proceedings as seeking relief pursuant to s 69 of the Supreme Court Act 1970 . Thus, Part 50 does not apply and Blue Haven does not require leave to commence its application. 14Nevertheless, the question of delay remains relevant. In Italiano v Carbone [2005] NSWCA 177 Basten JA considered the power of this Court to grant relief in the nature of certiorari under s 65 of the CTTT Act prior to the amendment which removed appeals to this Court under s 67(1). His Honour stated: "... 116 An appeal lies from the Tribunal to this Court against a decision of the Tribunal "with respect to a matter of law", where the Tribunal decides such a matter: s.67(1). The error identified above does not easily fit within this description, the Tribunal having ignored, rather than decided the critical matters. Rather, there was a constructive failure by the Tribunal to exercise the jurisdiction vested in it by statute, in accordance with the mandatory requirements of the statute. Absent compliance with those requirements, the Tribunal "had no jurisdiction to make the order", a finding which falls within s.65(3)(a) of the CTTT Act. In those circumstances, the Court is empowered to grant relief in the nature of certiorari, pursuant to s.65(1)(a) of the CTTT Act. 117 Relief of that kind is discretionary. Relief may be refused where there has been delay on the part of the applicant or it can be said that the applicant has waived or acquiesced in the validity of the decision: see generally, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [57]-[58] (Gaudron and Gummow JJ, Gleeson CJ agreeing) and see SAAP (supra) at [80] (McHugh J). In the present case, there has undoubtedly been delay. However, it is not suggested that the delay demonstrates an intention to waive any right to challenge the validity of the decision, nor acquiescence in it. Generally speaking, certiorari may be sought within a reasonable period of the making of a decision, which is not fixed in this State but in other jurisdictions is at periods varying from 60 days to six months, in all cases extendable by leave: see Aronson, Dyer and Groves, Judicial Review of Administrative Action , (3rd ed, 2004) p.718. 118 Because there was no right of appeal available, the issue of delay, and the reasons therefore, agitated before the Master, fall away. Of more importance in the present circumstances is the question of prejudice which may have been suffered by the First Opponent in seeking to rely upon the decision of the Tribunal. This consideration was not the subject of any clear basis for opposition to an order for relief, if the decision of the Tribunal were found to be otherwise beyond power. Rather, the First Opponent opposed the relief sought by way of certiorari on the grounds that it had not been sought, nor the relevant issues agitated, before the Master. There are two reasons for giving less weight to that complaint than might otherwise be appropriate. First, the basis upon which I would uphold the challenge to the decision of the Tribunal bears a close similarity to the primary complaint of the Claimant, namely that he was never properly joined in the proceedings. Secondly, the First Opponent was given an opportunity to put further submissions before the Court in relation to the alternative form of relief, and did so. In those circumstances, the discretionary grounds for refusing relief are not made out." 15For the reasons discussed below, I do not consider that the delay in seeking relief is of such a degree, having regard to all the circumstances of this case, as to warrant refusing the relief sought. Evidence 16Ms Cunningham's evidence before the Court comprised an affidavit affirmed by her on 23 December 2010, which had exhibited to it copies of correspondence between her and Blue Haven, notices issued by the Tribunal, and what was termed a "spreadsheet" recording communications between her and Blue Haven. Blue Haven's evidence comprised affidavits sworn by Mr Chandler, Ms Martinez, Valerie Rodriguez and Sarah Chasling on 26 November 2010 and Mr Chandler and Ms Martinez on 19 January 2011 in which each denied any knowledge of the hearing on 2 February 2010 prior to its taking place. Other documents were tendered during the course of the hearing, which are discussed below. 17The evidence of Ms Cunningham centred, in large part, on her discussions with Martinez between November 2009 and January 2010. She was shown a copy of the spreadsheet exhibited to her affidavit which she agreed was a contemporaneous record and which was, for the most part, updated as conversations occurred and letters were received. She agreed that the spreadsheet recorded that on 23 December 2010 she "[l]odged formal complaint [with the] CTTT" and that on 4 January 2010 she "[l]odged evidence" with the Tribunal. 18Ms Cunningham agreed that she had a telephone conversation with Ms Martinez on 22 January 2010 and that she recorded the details of the conversation in the spreadsheet. She agreed that the last part of the entry provides "LC [a reference to Ms Cunningham] confirmed that we would proceed to the CTTT as we felt our only option to (sic) get the job done properly." Whilst she agreed that she did not tell "exactly" Ms Martinez that she had lodged the application she said that she did tell her the date of the listing. When asked why the details of the discussion in the spreadsheet omitted reference to her informing Ms Martinez of the hearing date she said she "didn't think it was important at the time and these notes are largely what - what I thought was important..." She said that she first raised the matter with her lawyers when proceedings had been commenced in this Court and that she was not mistaken about her recollection of the discussion although she said that she could not say that she was sure that she used the words "we would proceed to CTTT", although she accepted that it was recorded in the spreadsheet. 19Both Ms Martinez and Mr Chandler gave evidence concerning receipt by Blue Haven of documents relating to the proceedings in the Tribunal and the procedures in its Sydney office for handling of documents received in relation to proceedings in the Tribunal generally. Ms Martinez, deposed that, when a document was received by post it was stamped with a date stamp and where the document related to proceedings in the Tribunal or complaints to the Department of Fair Trading in relation to "construction or renovation cases", copies of the document were produced and provided to her and Mr Chandler. She said that, if the document related to a hearing date, then the details of the hearing date are placed on a whiteboard located in the construction department in the office. In cross examination she said that a copy of all correspondence received by the Sydney office in relation to proceedings in the CTTT or complaints to Department is placed in a lever arch file under an alphabetical tab. She agreed that the documents once placed in the lever arch file were not maintained in chronological order and could be placed out of order. She also gave evidence that Blue Haven maintained a computer program in which telephone conversations were recorded. A print-out from that program was tendered during the course of the hearing and referred to as the "work log". 20In cross examination Ms Martinez said she first became aware of the ongoing dispute between Blue Haven and Ms Cunningham regarding work carried out on the pool in November 2009. She said that she had seen a letter from Ms Cunningham addressed to Blue Haven dated 13 November 2009 in which Ms Cunningham expressed an "intention to take this matter to the Consumer Trader and Tenancy Tribunal." She said that, whilst she discussed the letter with Mr Chandler, she did not remember when she first saw it. She agreed that she had a conversation with Ms Cunningham in November 2009 in which she offered to send someone out to rectify the defects and that she said "let us do that and if you are not happy with it then you can keep going with the CTTT", to which Ms Cunningham responded that she was going to proceed to the Tribunal. 21Ms Martinez agreed that a Notice of the commencement of the proceedings was stamped as having been received by Blue Haven on 18 January 2009 although she said that she did not recall seeing it until "we were preparing the file or being involved in this side of things". She agreed that the stamp placed on the document was indicative of it having been received by Blue Haven on 18 January 2009 and copies should have been placed in the file and provided to her, Mr Chandler and another employee. She said that, whilst she should receive a copy of Tribunal documents, Mr Chandler is responsible for attending to the substantive matters relating to matters in the Tribunal and that she would not normally "act on" a document of this nature, leaving it to Mr Chandler to deal with. 22Ms Martinez gave evidence that she again had a telephone conversation with Ms Cunningham on 22 January 2010 during which Ms Cunningham made remarks about her intention to proceed with matters in the Tribunal. She denied knowing that at the time of that conversation that Ms Cunningham had commenced proceedings in the Tribunal or that she understood that she had commenced any such proceedings, saying that she understood only that Ms Cunningham intended to commence proceedings. She denied that Ms Cunningham told her that proceedings had been commenced in the Tribunal and that she had ever asked Ms Cunningham the date on which the proceedings had been fixed for hearing, stating that she had telephoned Ms Cunningham for the purposes of resolving the matter and that she would not have done so if she knew proceedings had been commenced. To this end, she said that it was her responsibility to attempt to resolve matters with clients prior to proceedings being commenced in the Tribunal or complaints made to the Department and if Ms Cunningham had told her either that proceedings had been commenced in the Tribunal or that a date had been fixed for hearing she would have made a note to that effect in the work log (there being no record of any comment relating to the Tribunal in the work log in respect of that conversation) because Mr Chandler had asked her to speak with Ms Cunningham "to avoid it getting to that point". 23Mr Chandler gave evidence that he had primary carriage of the matter involving Ms Cunningham in the Tribunal on behalf of Blue Haven. He said that he first became aware that there had been a hearing in the Tribunal when he received a Notice of Order from the Tribunal dated 3 February 2010 and date stamped by Blue Haven on 4 February 2010. Mr Chandler said that he had not received notification of the hearing on 2 February 2010 prior to that date, although he did say when questioned about whether he knew of Ms Cunningham's intention to commence proceedings in the Tribunal that he knew of that intention and that it was possible that he knew she had commenced proceedings in the Tribunal, although he said that he could not say definitely either way. When asked as to the source of the knowledge, he said that it was "[b]ecause of the Office of Fair Trading order." He said that has never found a document notifying Blue Haven of the proceedings and that he was surprised when he received notification that a hearing of the matter had taken place and that an order had been made in Blue Haven's absence. He gave evidence that he made inquiries as to whether notification of the hearing had been received, saying that "I went through everything I could find. I could not find any evidence that there was going to be a hearing." He said that he received the notification of the hearing and Ms Cunningham's supporting documents some months after Blue Haven lodged its application for rehearing in February 2010, although he could not say when. 24Mr Chandler was shown a bundle of documents consisting of the Notice of Hearing, an unsigned letter from Ms Cunningham dated 4 January 2010, correspondence with the Department and between the parties, payment records, a report prepared by the Department, a certificate of insurance, photographs of the pool and a quote for rectification work from a pool and landscaping company. He agreed that, based upon his experience in the Tribunal, Blue Haven would usually receive such documentation, comprising a complainant's "supporting documents", along with a "cover page" and a notice of appearance as well as information from the Tribunal in a yellow form accompanied by a two page document, outlining the relief sought by the complainant. When shown the Notice of Hearing he said that they were not the same document and he denied seeing the former on or shortly after 18 January 2010, although he said he may have seen it after the hearing on 2 February 2010. He denied that, in his experience, it was a form commonly used by the Tribunal. He denied receiving or seeing any of this documentation prior to 2 February 2010. 25Mr Chandler was shown a copy of Blue Haven's "application for a rehearing" signed by him on 18 February 2010. Mr Chandler said that Mr Atti of Blue Haven prepared the document. He was also shown a bundle of documents consisting of photographs of the pool, electronic payment receipts from Ms Cunningham to Blue Haven, and a quote from a pool and landscape company to Ms Cunningham which, except for the photographs, were produced by Blue Haven from its files. When asked if he could explain how Blue Haven acquired those documents Mr Chandler said that he could not, saying "I don't necessarily have access to the folder or I wouldn't have looked in it - go looking for that sort of material." Legislative provisions 26The relevant provisions of the Act and Regulations provide - Section 25 Notice of Proceedings (1) If any proceedings are to be determined by a hearing, the Registrar must cause notice of time and place that is fixed for the hearing to be given to each party in the proceedings. (2) If a party who has been notified under subsection (1) fails to attend at the time and place notified, the proceedings may be held in the absence of the party. (3)... Section 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. Section 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): (a) in the case of a natural person-by: (i) delivering it to the person personally, or (ii) leaving it at, or by sending it by post to, the residential or business address, or other address for service, of the person that was last known to the person giving or serving the document, or `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 (c) ... (2) ... (3) ... Regulation 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. (2) ... Regulation 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) ... (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. (5) ... (6) ... (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. 27The Interpretation Act 1987 - 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, and (c) ... (2) ... Discussion 28I should mention, at the outset, that it does not seem to me to be important in respect of the real issues presented by this summons whether Ms Cunningham had informed Blue Haven that she had actually commenced proceedings in the Tribunal or Blue Haven had received notice of the application (though I think that it did). The issues are whether the notice of hearing was posted to Blue Haven, whether it was received and whether the Tribunal was correct to proceed to final determination of the merits in its absence. 29It is not controversial that the Tribunal is obliged to accord procedural fairness to the parties in proceedings before it. Mr Emmett correctly contends that the requirements of procedural fairness depend on the particular circumstances of the case (see SZBEL v Minister for Immigration (2006) 228 CLR 152 at [26]). He argued that, while s 35 is the primary source of the Tribunal's obligation to afford procedural fairness, it must be read in conjunction with the provisions as to the mode of service and the ability of the Tribunal to proceed in the absence of a party. Mr Emmett submitted that where the Tribunal causes a notice containing the information required under s 25(1) to be generated and, in the case of a body corporate, serves that notice in accordance with the method of service contained in s 78(1)(b), then it has satisfied the "procedural requirements for notice" and may dispose of the matter in the absence of that body corporate under s 25(2). He submitted that the fact there was a copy of the Notice of Hearing on the Tribunal's file addressed to Blue Haven at its registered office is sufficient to establish that it was indeed posted. 30The evidence of Ms Martinez and Mr Chandler, whom I thought to be honest and reliable witnesses, demonstrates that Blue Haven had a system for dealing with consumer complaints and proceedings in the Tribunal, for one reason or another, such proceedings apparently being not infrequent. Had the notice of hearing been received, it would in the normal course have triggered a procedure that would have ensured attendance at the hearing. No such procedure was triggered. I am satisfied that there was no reason why the notice, had it been received, would have been ignored as it was patently in Blue Haven's interest to attend. It would, of course, have been possible that ordinary human failing might have led to the notice being mislaid or lost before the procedure had been undertaken but, whilst this cannot be dismissed as an explanation, it seems to me to be improbable. I accept that Ms Cunningham is sure that she told Ms Martinez about the hearing date but I believe that she is mistaken, an opinion which is confirmed by the contemporary documents, although of course one must always be cautious about drawing a positive conclusion from a negative. Whilst a copy of the notice of hearing is on the Tribunal's file, and this raises the distinct possibility that it was indeed posted, this does not by itself establish this fact more probably than not. (I note that the reasons of the Member do not mention that he asked Ms Cunningham about notice or that she told him she had mentioned the hearing date to Ms Martinez.) 31It is to be observed that s 25 does not provide for the method of giving notice and s 78, which does do so, does not provide that compliance amounts to service. The deeming provision in reg 50(4) is subject, of course, to s 76 of the Interpretation Act , which permits rebuttal of the presumption of service. 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 ..." As mentioned above, 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. Moreover, it does not appear that the Member of the Tribunal considered whether or not it had been. The record mentions only Blue Haven's absence. I would have expected, had an inquiry been made as to the processes in the Tribunal for mail, that it would have been mentioned. Except for an enquiry by the Member as to whether Ms Cunningham would like to proceed or "rather have the matter recalled", she indicating, preference for the former course as she and her partner had taken time off work to attend, it does not appear that the Member considered whether justice required the matter to proceed so far as Blue Haven was concerned. The opportunity for parties to attend on the hearing is of such importance that continuing with a hearing despite such an absence, as it seems, automatically, does not to my mind satisfy the requirements of s 35 and reg 50(1). 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's absence. 32There is another fundamental problem facing Ms Cunningham's case. The notice required to be given was of the hearing that was intended to be conducted. The notice said to have been posted was, in terms "[f]or directions hearing". This is not a final hearing. The notice also states that, in the event of a failure to appear, "the Tribunal may decide the matter in your absence ... [and] the decision ... will be binding". However, in the context, this must be taken to refer to the directions for which the hearing was convened. Accordingly, even if the notice had been posted, it was not and could not have been just to have proceeded to finally determine the merits of the application in Blue Haven's absence. Conclusion 33Although Blue Haven did not act expeditiously in bringing this application there is no evidence that a fresh hearing would be unfair. The failure to give proper notice of hearing and the other matters to which I have referred demonstrate such a fundamental breach of the rules of procedural fairness and failure by the Tribunal to comply with its legislative remit that, despite the delay, relief should be granted. 34Accordingly, I make the following orders -