The legality of the decision of 30th July 2013
28The Court's supervisory jurisdiction is concerned with the legal limits of the Tribunal's exercise of its powers, not with the merits of its decisions. S 65 of the Repealed Act is a privative provision excluding a remedy for error of law on the face of the record: Kirk v Industrial Relations Commission [2010] HCA 1; 239 CLR 531.
29I will deal with Mr Kumar's points in the order in which I have set them out at [5] above. Points (a) to (d) relate to the decision of 30th July 2013. Point (e) relates to the later refusals to grant a re-hearing which I will deal with separately.
30Mr Kumar's first point is that the dismissal of the earlier application by Member Sarginson on 11th March 2013 was a final decision engaging the doctrine of res judicata, subject only to the express power to grant a rehearing under s 68 of the Repealed Act. Mr Kumar used the expression res judicata in the sense of a cause of action estoppel: KR Handley, Spencer Bower and Handley Res Judicata (Lexis Nexis, 4th Edition, 2009) at [1.02] - [1.06]. In Burrell v R (2008) 238 CLR 218 at [15], the High Court of Australia identified the principle underlying the doctrine in the following terms taken from its earlier decision in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1:
A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.
The doctrine applies not only to the Courts, but to all Tribunals whose function is judicial, or adjudicative. As Gibbs J put it in Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 353 at 453:
The doctrine of estoppel extends to the decision
of any tribunal which has jurisdiction to decide finally a question
arising between parties, even if it is not called a court, and its
jurisdiction is derived from statute or from the submission of
parties, and it only has temporary authority to decide a matter
ad hoc (Citations Omitted)
(See Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 at 373 - 4 [22]).
31There can be no question that the doctrine applied to the Tribunal. By s 21 of the Repealed Act, it had "jurisdiction to decide matters". By s 22, a court's jurisdiction is ousted when the Tribunal is seized of an issue first. By s 35, as I have stated, the Tribunal is obliged to permit the parties to call evidence and make submissions about the issues in the case. By s 52, parties must comply with the orders of the Tribunal. By s 65, the Tribunal's decisions "in respect of any matter that has been heard and determined" are final except for jurisdictional error, referral of a question of law, appeal, or order for rehearing by the Tribunal. The Tribunal is under a statutory obligation to provide reasons if requested: s 49.
32A cause of action estoppel will arise where the same matter has been decided by an adjudicative decision which is final in nature between the same parties: Kuligowski at p 373 [21]. In the present case the only question is whether Member Sarginson's order dismissing the previous application for the non-attendance of the parties was final.
33In Kuligowski at p 375 [25] the Court said:
A "final" decision, then, is one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final. It must be "final and conclusive on the merits": "the cause of action must be extinguished by the decision which is said to create the estoppel". (citations omitted)
34The central question in the present case is whether the order dismissing the previous application was "final and conclusive on the merits".
35Manifestly, an order dismissing proceedings may be a final order. The rule discussed in Kuligowski is about substance, not form. Section 91(2) Civil Procedure Act 2005 (NSW) (which does not apply to the Tribunal - see s 4(1); Schedule 1 of that Act, notwithstanding the broad definition of "court" in s 3) provides an obvious example. Plainly, Tribunal Member Sarginson's order of 11th March 2013 involved no decision on the merits. The application was dismissed because there was no appearance by either party and no satisfactory explanation for their non-attendance had been provided. The relevant principle was expressed succinctly by Lord Salmon in Birkett v James [1978] AC 297 at 328, "the dismissal of [a] first action without any decision on the merits [does not] constitute res judicata".
36Mr Kumar's second point may be readily dealt with. Contrary to Mr Kumar's argument, the powers of the Tribunal were not limited to those specified in s 28(5). Indeed, as I have indicated above, Member Smith was expressly empowered by s 25(2) of the Act to proceed in the absence of Mr Boensch provided he was satisfied that Mr Boensch had been notified of the time and place of the hearing. Member Smith was so satisfied and Mr Boensch does not dispute that he had been notified. There is nothing in this point and I reject it.
37The third and fourth points may be taken together. Both concern aspects of natural justice. I have set out the terms of s 35 of the Act above. Undoubtedly, it imposes an obligation on the Tribunal to afford parties to proceedings in the Tribunal natural justice as that expression is legally understood. What is required by the terms of the section is "a reasonable opportunity" of presenting the party's case and making submissions in relation to the issues. Naturally, s 25 requires notice of the time and place of hearing.
38These provisions restate the "hearing rule", an aspect of the general law idea of natural justice. The rule was stated by Heydon J in International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319 at 379 [141] in the following terms:
One of the primary principles on which the judicial process in this country operates is the principle that before any judicial decision is made which has substantive consequences there generally should be a "hearing". A hearing takes place before a judge at a time and place of which the moving party has given notice to the defending party. At it both parties have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for. This aspect of the rules of natural justice pervades Australian procedural law. (Footnotes omitted)
39It needs to be emphasised that what s 35 and general law considerations of procedural fairness require is a reasonable opportunity. In Italiano v Carbone [2005] NSWCA 177, Basten JA at [102] said of the Tribunal's obligations:
The minimum requirement of fairness, consistent with a legal exercise of power, will depend not only on the circumstances of the case, but also upon the statutory regime. The fact that the provisions of the CTTT Act referred to above permit the Tribunal a considerable area of discretion in moulding its own procedures suggests that the bounds of legality may need to be expanded beyond those which might apply in other circumstances.
In the particular circumstances of this case, Mr Kumar argues that the case-management procedures adopted by the Tribunal under s 29 of the Act engendered a "legitimate expectation" that the matter would not proceed to hearing unless Donovan Electrical first complied with the procedural directions imposed upon it by Member De Jersey on 17th May 2013.
40Before evaluating this argument, it is worth bearing in mind that s 30 of the Repealed Act conferred a discretion on the Tribunal to dismiss proceedings where the applicant "is conducting the proceedings in such a way that unreasonably disadvantages" the respondent. This may include failing to comply with a procedural direction under s 29.
41It is also well to bear in mind my finding about the explanation for Mr Boensch's non-attendance on 30th July 2013 ( at [18]-[19]): it had nothing to do with any reliance upon any actual expectation that the matter would not proceed because Donovan Electrical had failed to comply with the procedural directions.
42In Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [22] Mason CJ said:
In the cases in this court in which a legitimate expectation has been held entitled to protection, protection has taken the form of procedural protection, by insisting that the decision-maker apply the rules of natural justice. In none of the cases was the individual held to be entitled to substantive protection in the form of an order requiring the decision-maker to exercise his or her discretion in a particular way.
43In Minster for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291 Mason CJ and Deane J said:
The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law.
I also observe in passing that on the same page, their Honours expressed the view that to be legitimate, an expectation need only be objectively reasonable; it is not necessary that the applicant "should personally entertain the expectation".
44For this ground to form a basis for judicial review, it is necessary for Mr Boensch to demonstrate that by the orders of 17th May 2013, the Tribunal was making a promise or representation that a certain procedure would be followed i.e. that no hearing would proceed and no adverse order would be made against him unless Donovan Electrical first complied with the procedural direction made on that day. In Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 at 12 [34] Gleeson CJ accepted "that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed." His Honour said:
But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation.
45Gleeson CJ also pointed out that fairness is an essentially practical concept. And in those circumstances if a decision-maker has made a representation about the procedural steps to be followed it will be difficult to conclude the departure from the promised procedure is unfair if the party claiming relief had no "subjective expectation in consequence of which he did, or omitted to do, anything" (Lam at 13 [36]; 14 [37]).
46Gummow and McHugh JJ (at 34 [105] (with whom Callinan J agreed at 46 [148]) stressed that "a notion of legitimate expectation" is concerned "with the fairness of the procedure adopted, rather than the fairness of the outcome", that is procedural, not substantive, rights are involved.
47Applying these principles to the current case, Mr Kumar's argument must be rejected at every level. It has not been established that the Tribunal made any representation that the hearing would not proceed, or that no adverse order would be made, unless Donovan Electrical complied with the procedural direction. Rather the evidence demonstrates that the notices provided by the Tribunal to Mr Boensch made it clear that the hearing would proceed on a specified date, at a specified time and place. It informed him that he should arrive in good time because, in accordance with the statutory powers, if he did not, it could proceed in his absence.
48Treating the procedural direction as a promise or representation is not justified. Such an approach will be inconsistent with the terms of the statute, which empowered the Tribunal to make procedural directions, conferred a power to cure disadvantages arising from non-compliance, and empowered it to proceed in the absence of a party who had received due notice of the hearing . Binding the Tribunal to enforce its procedural directions in a particular way for the advantage of the opposite party would be inconsistent with the breadth of the powers conferred by the statute. Moreover, the expectation contended for comes close to the expectation of a substantive right that the Tribunal would not exercise its powers, not only to hear the matter, but also to make an order adverse to Mr Boensch unless Donovan Electrical complied with the procedural directions. This goes beyond the continued application of the concept of "legitimate expectation" in Australian Law.
49Moreover, Mr Boensch did not lose any opportunity to call evidence or make any argument to advance his defence. He was able to attend the hearing, apply for an adjournment if prejudiced by Donovan Electrical's non-compliance, or fully participate in the hearing before Member Smith. On the findings I have made, he did not specifically rely upon Donovan Electrical's non-compliance for his non-attendance which, in the circumstances, would have been unreasonable. I am not satisfied any practical unfairness flowed from the alleged departure from any supposed "legitimate expectation" in the particular circumstances of this case.
50Turning to Mr Kumar's fourth point, I accept that in some limited statutory circumstances, natural justice may require a Tribunal, especially one whose procedures were inquisitorial in nature, "to make it own inquiries": Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [26]; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [25]. Where it arises, the obligation is limited, as made clear by the plurality in SZIAI at [25], in the following way:
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.
At [24] their Honours said that a failure to initiate inquiries would not constitute a departure from the standards of natural justice: see also Teoh at 290 per Mason CJ and Deane J.
51The statutory powers exercisable by the Tribunal to hear and determine the proceedings between the parties were essentially adversarial or adjudicative in nature. As it was sometimes put it was a "court-substitute tribunal". Once satisfied, as Member Smith was, and about this there is no complaint, that Mr Boensch had received adequate notice of the date, time and place of hearing, there was no obligation on Member Smith to do anything other than to consider whether to exercise his power to proceed ex parte. Delaying the commencement of the hearing for a few minutes to make allowance for Mr Boensch running a little late, as he did, was more than was legally required.
52Different circumstances may produce different results. Given the prima facie right of a party to have proceedings heard in his presence (Grimshaw v Dunbar [1953] 1 QB 408 at 416; Taylor v Taylor (1979) 143 CLR 1 at 4 per Gibbs J; at 15 -6 per Mason J; Murphy J at 20-1; and at 22 per Aickin J), it may be that if a court or tribunal has sufficient reason to suspect that a party is absent for good cause the matter should be stood down, or stood in the list, to enable appropriate inquiries to be made before deciding whether to proceed or not. But that is not this case.
53I am not satisfied that Mr Boensch has established that Member Smith's decision of the 30th July 2013 was vitiated by jurisdictional error.