Blue Haven Pools v Dobell

Supreme Court of NSW|2008-07-10

Background 2 On 25 May 2007 proceedings HB 06/18452 and HB 06/27586 were both listed for hearing before the CTTT. The proceedings related to a contract for the construction of a pool by Blue Haven for Mr and Ms Dobell. Blue Haven was the applicant in HB 06/27586 and the respondent in HB 06/18452. The claim by Blue Haven was for the balance of monies owed under the contract. The claims by Mr and Ms Dobell were for a sum in the way of $21,300.00 to be repaid to them and for a release from having to pay any further sums that may be due under the contract. The claim by Blue Haven was for the sum of $8604. 3 The representative of Blue Haven, Mr Geoffrey Haughton, was ill on the day of the hearing and was unable to attend. The proceedings were heard in the absence of the Blue Haven representative and orders were made in favour of Mr and Ms Dobell in relation to both matters. 4 On 5 June 2007 Blue Haven applied for a rehearing of the matter. On 10 July 2007 the CTTT granted a rehearing. The matter was listed for the re-hearing on 29 November 2007. At the rehearing before Member Connolly, the Member claimed the CTTT did not have jurisdiction to rehear the matter as the amount in dispute between the parties exceeded the $25,000 jurisdictional limit contained in s 68(13) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the Act"). Blue Haven now seeks to appeal the decision of the CTTT made on 25 May 2007.

(c) an injunction, in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter." 6 Section 65(3) however provides: "(3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that:

(a) the Tribunal had no jurisdiction to make the order, or

(b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness." 7 Prerogative relief under s 65(3) of the Consumer Trader and Tenancy Tribunal Act is discretionary and 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 (Italiano v Carbone [2005] NSWCA 177 per Basten JA at [117]; Maconachie v Kullenburg & Ors [2005] NSWCA 294 per McColl JA (Giles JA agreeing) at [59]). 8 Section 67 of the Consumer Trader and Tenancy Tribunal Act allows for an appeal to be made to this court on a question with respect to a matter of law. A reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal (s 67(8)). The onus lies on the plaintiff to demonstrate that there has been an error with respect to a matter of law. 9 Section 67(3) of the Consumer Trader and Tenancy Tribunal Act provides that, after deciding the question of the subject of an appeal, the court may affirm the decision of the Tribunal, or it may make an order in relation to the proceedings in which the question arose as, in its opinion, it should have been made by the Tribunal, or it may remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal. 10 The width of s 67 was discussed in Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456. Hodgson JA (with whom Beazley and Tobias JJA agreed) stated succinctly [at para 33]: "… in my opinion, to establish an error of law by the Senior Member, it was necessary to show that he applied a wrong principle of law. That could be shown either from what he said, or because the ultimate result, associated with the facts that he expressly or impliedly found, indicates that he must have applied the wrong principle of law". 11 See also Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312 at paragraphs [39], [40], [41], [47] and [59]. A denial of natural justice or procedural fairness can give rise to prerogative relief being granted or it can be an error of law.

Grounds of Appeal 12 There are three grounds of appeal. Firstly, that the decision and orders given or made by the CTTT on 25 May 2007 denied Blue Haven procedural fairness and natural justice; secondly, that the said decision and orders were given in circumstances such as to operate as a manifest injustice and prejudice against Blue Haven; and thirdly, that the CTTT erred in law in proceeding to hear and decide the issues between the parties below in the absence of Blue Haven. 13 There were two applications before the Tribunal listed for hearing on 25 May 2007. In HB 06/27586 Blue Haven was the applicant and in HB 06/18452 they were the respondent. It is not disputed that Mr Haughton was aware of the hearing set down on 25 May 2007. 14 On 25 May 2007 at the hearing Mr and Ms Dobell appeared with their solicitor Mr McCarthy. The matter was listed for hearing at 2.15 pm. Blue Haven was called outside the Tribunal hearing room at 2.15 pm and then again at 2.45 pm. There was no appearance on behalf of Blue Haven. There was no prior correspondence received by either the Dobells or the Tribunal advising them that there would be no appearance by Blue Haven. Blue Haven had not notified the Tribunal or the Dobells that it was unable to proceed on the hearing date and an adjournment would be sought. 15 The Tribunal Member ordered in HB 06/27586 that: "1. The application is dismissed because: · There is no appearance of applicant by 2:49 pm. No satisfactory explanation for such non-attendance has been given to the Tribunal. 2. The Tribunal further orders that: a. To the extent that the Respondents costs in defence of this application are different to their costs as Applicants in application HB 06/18452, the Applicant is ordered to pay the Respondents' costs of and incidental to this application, those costs to be agreed or failing agreement to be assessed on a party/party basis pursuant to the provisions of the Legal Profession Act 2004." 16 And in proceedings HB 06/18452: "1. The respondent BLUEHAVEN POOLS & SPAS PTY LTD, 118 Pacific Highway, Tuggerah 2259, to pay the applicant, JOHN DOBELL & KELLIE DOBELL, xx xxxxxxx xxxx, XXXXXXXXXX, the sum of $21,336.05 immediately. Reasons- · DAMAGES $21,336.05 2. The Tribunal further orders: a. The Respondent pay the Applicant's costs of and incidental to this application, those costs to be agreed or failing agreement to be assessed on a party/party basis pursuant to the provisions of the Legal Profession Act 2004. b. The costs of application HB 05/45159 having been reserved on 17 March, 2006 until the conclusion of the hearing of this application, the Respondent is ordered to pay the Applicant's costs of and incidental to the application HB 05/46159, those costs to be agreed or failing agreement to be assessed on a party/party basis pursuant to the provisions of the Legal Profession Act 2004." 17 Mr Haughton has since provided an explanation for his non attendance at the Tribunal hearing on 25 May 2007. At the hearing of these proceedings in this Court Mr Haughton gave evidence and was cross examined. His explanation for his non attendance is as follows. 18 Mr Haughton says that he was involved in negotiations with the Dobell's solicitor Mr McCarthy. He attended a conciliation conference at the CTTT at Gosford and subsequently attended with Mr McCarthy at the worksite after that conciliation conference. He attended on at least one further directions hearing in the proceedings but it appears that he missed another on held on 17 March 2006. 19 Mr Haughton believed that following discussions with Mr McCarthy, that the issues between the parties had largely been resolved and that if a figure could be agreed upon between the parties the claim and counter claim could be resolved. He says that it was his intention to attend the Tribunal on 25 May 2007 and to advise the Tribunal of the progress that had been made towards resolution and to suggest an adjournment so that there could be further discussions between him and Mr McCarthy. He had checked his diary at the beginning of the week and knew this hearing was listed on 25 May 2007. 20 However, on about 23 May 2007, Mr Haughton fell ill and went home early from work. He did not return to work for the rest of the week. Mr Haughton gave evidence that he is a diabetic and has a lung condition. On 23 May 2007, he became very ill so went home and was confined to bed. His wife, a charge sister, looked after him. His wife tried to arrange a medical appointment on Friday, 25 May 2007 but could not obtain one as the doctor was booked out. On Saturday 26 May 2007, Mr Haughton's wife drove him to his local general practitioner Dr Cummins for consultation. 21 The doctor examined Mr Haughton and recorded: " Saturday May 26 2007 11.37.10 Dr Edmond Cummins 1/52 chest cough dirty sputum urti o/e ears chest nad mild pharyngitis Examination: … Reason for visit: Lower Respiratory Tract Infection" [Ex 1] 22 Dr Cummins prescribed medication. 23 Mr Haughton's evidence is that his diary was at work and due to his illness he overlooked the Tribunal hearing. Early in the following week, when Mr Haughton returned to work he became aware that the matters had been heard by the CTTT. He says that he phoned a registry officer and was advised that he should obtain a medical certificate and apply for a rehearing. On 1 June 2007, he obtained a medical certificate (also see Ex1). 24 On 5 June 2007, Mr Haughton on behalf of Blue Haven applied to the Tribunal for a rehearing. The application was successful and orders for rehearing was made by the Tribunal on 10 July 2007. The rehearing was set down for 29 November 2007. At the hearing on 29 November 2007, Tribunal Member Conolly declared that the Tribunal lacked jurisdiction as both the claim by the Dobells' and the claim by Blue Haven were on foot and in aggregate exceeded $25,000. On 18 January 2008, Blue Haven filed the summons in this Court.

Denial of natural justice or procedural fairness 25 In Kioa v West (1985) 159 CLR 550 the High Court held that the duty to accord natural justice is a duty to act fairly. In the normal course, a party to judicial proceedings (as are those in a tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing so as to give it a reasonable opportunity to meet that case and to advance its own. 26 In relation to procedural fairness, in Kioa v West Mason J (at 584-585) stated that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures, which are appropriate and adapted to the circumstances of the particular case. 27 In Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 the High Court discussed the manner in which procedural fairness cases are approached by the courts, and Gleeson CJ said (at 14, [37]): "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 28 However, whether there is a denial of procedural fairness depends on the circumstances in each case. 29 Section 28 of the Consumer Trader and Tenancy Tribunal Act reads: "28 Procedure of Tribunal generally

(1) The Tribunal may, subject to this Act, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness.

(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 or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings 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 … (g) may dismiss any proceedings if the applicant fails to attend a hearing, …" 30 Section 35 reads: "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." 31 Section 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 & Ors [2005] NSWCA 177 at [105] and [106]. 32 I accept that Mr Haughton , an employee of Blue Haven who was handling the matter on behalf of Blue Haven, was ill and unable to attend the Tribunal hearing on 25 May 2007. However, in my view that is not enough. What has not been provided is an explanation by Blue Haven as to why it did not notify the Tribunal and the Dobells prior to the hearing taking place on 25 May 2007 of its anticipated non attendance at the Tribunal due to Mr Haughton's unexpected illness and that it would be seeking an adjournment. That way the inconvenience and expense of Mr and Mrs Dobell and the Tribunal Member could have been avoided. 33 Blue Haven would have been aware that Mr Haughton went home from work on 23 May 2007 and that he had left work unattended. His work diary remained at work. Mr Haughton was not at work the next day, 24 May 2007, nor on the day of the hearing. It was Blue Haven's responsibility to ensure that a representative attended the Tribunal hearing or alternatively to ensure that an adjournment was sought prior to the hearing taking place. There was adequate opportunity for Blue Haven to make arrangements to take those steps outlined above. In the absence of that explanation for the non attendance of Blue Haven the Tribunal Member was entitled to proceed with the hearing. 34 However, the result is that Blue Haven has never been afforded a hearing on its merits. This situation would have been rectified had the amount claim in the completed proceedings been less than $25,000. 35 Blue Haven was granted a rehearing by the Tribunal. When the actual rehearing was to take place before the Tribunal, Member Connolly ruled that the Tribunal did not have jurisdiction because he considered that the amount claimed or disputed under the completed proceedings was more than $25,000 (it was about $29,936.05). If the amount claimed under the completed proceedings is more than $25,000 a person cannot make an application for a rehearing - see 68(13) of the Act. 36 In my view, in the circumstances of this case where the Tribunal had ruled Blue Haven obtained a rehearing which was later taken away, there has been a denial of procedural fairness. The orders of the Tribunal Member dated 25 May 2007 are set aside. The proceedings are remitted to the Tribunal to be determined according to law. 37 However, the main reason why this unfortunate sequence of events has occurred is because of Blue Haven's non attendance at court on 25 May 2007. Costs are reserved.

(1) The orders of the Tribunal Member dated 25 May 2007 are set aside.

(2) The proceedings are remitted to the Tribunal to be determined according to law.

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.

Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

CITATION : Blue Haven Pools v Dobell [2008] NSWSC 707

Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456 Italiano v Carbone [2005] NSWCA 177 CASES CITED : Kalokerinos & Anor v HIA Insurance Services Pty Ltd & Anor [2004] NSWCA 312 Kioa v West (1985) 159 CLR 550 Maconachie v Kullenburg & Ors [2005] NSWCA 294 Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1

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