Boensch v Donovan Electrical Services Pty Ltd

The issues to be decided 4The summons lists 8 grounds, each of which have been carefully addressed in the written submissions of Mr Kumar of Counsel who appears for Mr Boensch. They were responded to by Donovan Electrical's solicitors and amplified by Ms Button, solicitor, who appeared for Donovan Electrical on the hearing. 5In my judgment, Mr Boensch's grounds may be summarised into the following principal points: (a)The Tribunal had no power to entertain the application determined on 30th July 2013 because it was a second application in respect of the same matter, the first application having been dismissed by Tribunal Member Sarginson on 11th March 2013. That previous dismissal restricted the Tribunal's powers to the power to grant a rehearing under s 68; (b)The Tribunal had no power to proceed on an ex parte basis (in the absence of Mr Boensch) on 30th July 2013; (c)By proceeding in his absence, the Tribunal denied Mr Boensch natural justice because the Tribunal, by the practices it adopted for case-managing the application, had engendered a "legitimate expectation" that the matter would not proceed to a hearing unless Donovan Electrical as applicant first complied with procedural directions made by Tribunal Member De Jersey on 17th May 2013 requiring it to provide Mr Boensch with a copy of all documents on which it intended to rely at the hearing by 14th June 2013; (d)The Tribunal denied Mr Boensch natural justice by proceeding in his absence without first making enquiries, or attempting to contact him, to ascertain the reason for his non-attendance. In fact on the day of the hearing he was under medical treatment and unable to attend; (e)Given his right to be present at the hearing on 30th July 2013, in exercising its powers under s 68, the Tribunal ought to have accorded Mr Boensch the right to appear to present his arguments as to why he should be granted a rehearing. Moreover, his applications were refused arbitrarily. I take this to be a reference to the concept of legal unreasonableness. Complaints were also made about the adequacy of the reasons given for various decisions, especially the decision of Member Smith of 30th July 2013.

Evidence before me 6Mr Boensch's affidavit affirmed on 8th October 2013 was read and he was cross-examined on it. Pages 1, 12 and 13 of the transcript of the proceedings in the Tribunal on 30th July 2013 were tendered (Exhibit "A"). 7Miss Button tendered the Notice of Hearing posted to Mr Boensch by the Registrar of the Tribunal on about 7th June 2013 (Exhibit 1) and the Notice of 22nd April 2013 attaching Donovan Electricals application including the invoice upon which it relied (Exhibit 2). 8In his affidavit Mr Boensch said he appeared "at the first call-over" ([6]), presumably 17th May 2013 (Exhibit 2), and objected to the matter proceeding as it "was already dismissed". He says his objection was "disregarded". It is common ground on that day Member De Jersey made directions for the service of evidence by each party including by Donovan Electrical by 14th June 2013. 9Mr Boensch says, which is not disputed, that he was not served with any evidence at any time prior to the hearing on 30th July 2013 and accordingly, he asserts, he "did not file and serve any evidence in reply or file any submissions in reply" ([8]). 10He affirmed that he had health issues requiring an internal examination in hospital. He had been told the diagnosis was possibly cancer. The internal examination, which I infer was by way of endoscopy or the like, was set down for 1st August 2013 and he was required "to prepare [his] bowel in the 2 days leading up to the examination". His medical advice was that he needed to be able "to visit the toilet very regularly". 11He said at [11]: I have pointed out and was physically and emotionally so overwhelmed that I lost sight of the events surrounding me including the hearing date on 30th July 2013 in the CTTT regarding this matter (sic). He became aware of the order made in his absence when he received a copy of the orders, and Member Smith's reasons, in the mail on 5th August 2013. 12He said he was very surprised to receive the orders because he "understood the production of evidence and submissions [was] a condition for the case to go ahead and these matters were not attended to by the applicant" ([13]). 13Mr Boensch accepted that he had been notified of the hearing date. He also said that an earlier hearing date had been adjourned on his application made by email when he was overseas on holidays (24.5T). He said that he would have turned up on the hearing date "if it wasn't for the medical incident". 14He accepted that he could have emailed the Tribunal, as he had done previously, or telephoned to advise that he was unfit to attend. He said, however, his "world turned upside down basically". He said at (28.25T): I should have and it would have been appropriate to pick up the phone and ring up, but it was just out of my head, I can't say more than that. At 29.45T he said that his non-attendance "was not a planned matter". He added: I would have definitely attended if that medical issue didn't come up. I was ropeable about the claims Mr Donovan made, and I would have definitely been there. There was no reason for me not to be there other than I just, yeah, the medical issue popped up and I wasn't capable of addressing that in a proper manner. 15He agreed that he received Exhibit 2 which included the application setting out the short facts upon which Donovan Electrical relied and the amount of the claim. Donovan Electrical's invoice was attached. Moreover, he also received Exhibit 1, which included information about applying for an adjournment "if you cannot attend". He did not recall reading that. 16The cross-examiner pointed out that the information provided stated that a matter may be dismissed, not must be dismissed, if the parties failed to comply with procedural directions.

Findings about Mr Boensch's non-attendance. 17I accept that Mr Boensch did not receive any material from Donovan Electrical. I do not accept that he had been unaware of the facts upon which Donovan Electrical relied for its claim. Those facts were set out in the application he received. From his evidence, I understand he disputed their accuracy. Moreover, he received the invoice setting out the amount of the claim and how it had been calculated. 18I do not understand Mr Boensch to say that he relied upon the non-service of Donovan Electrical's evidence as his reason not to attend the Tribunal. Quite the contrary, on my understanding of the evidence I have set out above, which I accept, Mr Boensch neglected to attend on 30th July 2013 because he was preoccupied with, and worried about, his medical condition and the investigations he was to undergo on 1st August 2013. As he said, because of his pre-occupation the hearing date was just out of his head. His non-attendance was "not a planned matter". I accept he did not deliberately flout his obligation to attend.

The proceedings on 30th July 2013. 19The application was fixed for hearing on Tuesday 30th July 2013 at 1:15 pm. The hearing notice requested the parties to arrive at least 15 minutes before the start of the hearing. The following endorsement appeared in bold on the hearing notice: It is important that you are on time as the Tribunal may decide the matter in your absence. A decision made may be binding on you. The "important information about hearings" section stated, in the first sentence under the heading Hearing: This matter has been listed for hearing for a specific time and length. 20S 25 of the Repealed Act requires the Registrar to "cause notice of the time and place that is fixed for hearing to be given to each party to the proceedings". Section 25(2) is in the following terms: 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. 21As I have said there is no issue that Mr Boensch received the Notice of Hearing. 22S 35 is in the following terms: 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. 23S 35 must be read with the terms of s 25(2). It is axiomatic that the Act must be read as a whole. 24On the date and at the time appointed, Mr Donovan appeared for Donovan Electrical. At the outset Tribunal Member Smith said: We will just wait for a few minutes to see if the other person attends. It was also apparent that the Member took Mr Donovan to task for his non-compliance with the directions made on 17th May 2013. 25It is common ground before me that the only document tendered was the invoice attached to the application. Mr Donovan gave evidence. Tribunal Member Smith commenced his ex-tempore reasons as follows: There was no appearance from the respondent and no request for an adjournment. The Tribunal records indicate the respondent was sent a notice of the hearing by post on 7th June 2013. I am aware of the procedures adopted by the Registrar for the service of notice on parties as set out in the statutory declaration dated 29th February 2013. I am satisfied that the respondent has been properly served with Notice of the Hearing and that the justice of the case requires that it now be conducted in the absence of the respondent. The reference to 29th February 2013 was unexplained, but may relate to the previous application which had been dismissed. 26The Member accepted Mr Donovan's uncontested evidence, who apparently acknowledged that one receptor was to be paid for by Commonwealth grant and that his claim related to the second. The member held that Donovan Electrical was not entitled to claim on the contract for the supply and installation of the solar receptor because of non-compliance with the Home Building legislation's requirement for a written contract. He then considered whether a claim lay "in quantum meruit" and decided that the requirements of the Home Building Legislation relating to a claim for quantum meruit had been complied with. That is to say, despite the absence of compulsory insurance, it was just and equitable for Donovan Electrical to recover on that basis. The Member gave reasons for this conclusion. In assessing the fair amount of the claim, he made a deduction of $2,000 from the amount claimed for the assistance of Mr Boensch "during the installation". 27As I have said, the Member ordered Mr Boensch to pay Donovan Electrical the sum of $6,203.25.

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.

Tribunal Member Rosser's decision 54Section 68 of the Repealed Act so far as is presently material is in the following terms: 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). ..... (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. ..... (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. ... 55Mr Boensch made a written application for rehearing on 16th August 2013. He relied upon each of the grounds of substantial injustice specified in s 68(2). Dealing with s 68(2)(a), he set out his side of the story about his arrangement with Donovan Electrical for the supply and installation of the solar receptors in narrative form. The last sentence was in the following terms: Additionally I was medicated and in preparation the days before a doctor examination on the 1st August 2013. According to his affidavit, in response to a letter from the Tribunal dated 22nd August 2013, and by email dated 30th August 2013, he drew attention to the sentence noted above and attached a medical certificate dated 27th August 2013. This medical certificate of Dr Graham Ctercteko certified that Mr Boensch "will be unfit for work from 1st August 2013 for a consultation". In his email Mr Boensch also explained that he was unable to leave home on the two days before the examination because of necessary "preparation" for the procedure. 56Tribunal Member Rosser, as delegate of the Chairperson, refused the application because she was "not satisfied that the applicant may have suffered a substantial injustice" she gave the following reasons. The medical evidence provided by the re-hearing applicant states that he was unfit for work on 1/8/13. He has provided no medical evidence confirming that preparation for the medical treatment rendered him unfit to attend a hearing on 30/7/13. The re-hearing applicant has not explained his failure to request an adjournment on the day of the hearing if he was unfit to attend. Nor has he given a satisfactory explanation of his failure to provide evidence in accordance with the Tribunal's directions. The re-hearing applicant's assertion that he did not receive material from the applicant is not a sufficient explanation in this regard, particularly in the absence of any evidence that the re-hearing applicant contacted either the applicant or the Tribunal in respect of the applicant's alleged failure to comply. Further the assertions made by the re-hearing applicant do not support a conclusion that the Tribunal made an error in deciding the application. Overall, the Tribunal is not satisfied on the material provided that the decision is not fair and equitable, that it was against the weight of the evidence or that new evidence is now available which was not reasonably available at the time of the hearing. 57In the light of the express power conferred by s 68(8) to decide an application for re-hearing without the need for any hearing or meeting, Mr Kumar's argument that the failure to afford a hearing of the application itself constituted jurisdictional error cannot be accepted. There is nothing in the evidence before me to suggest that a hearing was requested. In the absence of such a request, which certainly need not be granted if made, and in the light of the express statutory power to decide the application in chambers in the absence of the parties, I am satisfied that this alleged error has not been made good. 58As I understand the argument that Member Rosser's decision was capricious and arbitrary, it is an articulation of the ground of jurisdictional error that the decision to refuse the application was legally unreasonable: Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. 59In my judgment this question must be considered through the lens of Mr Boensch's prima facie right to have the proceedings heard in his presence referred to above (see [53] above). As the reasons of Gibbs J in Taylor v Taylor at page 4 make clear, this presumptive right is an aspect of the hearing rule forming part of the reasonable "opportunity of being heard": Commissioner of Police v Tanos (1958) 98 CLR 383 at p 395. As Jenkins LJ expressed it in Grimshaw (at p 416): Prima facie that is his right, and if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case - no doubt on suitable terms as to costs As Gibbs J pointed out it matters not that the absence of opportunity "was not due to any fault" on the part of the opposing party, the court or tribunal. 60In Woods v Sheriff of Queensland (1895) 6 QLJ 163 Griffith CJ said at 164: When an order is made ex parte, the Court or Judge making it may, upon application of any person prejudicially affected by the order, review and, if necessary, discharge it. This is a rule of natural justice. 61Although agreeing about the existence of the "rule" each of Gibbs, Mason, Murphy and Aickin JJ expressed themselves in somewhat different language, but all to a similar effect. Dissenting as to the form of order, Murphy J expressed the rule in terms of a discretion to set aside the judgment: pp 20 - 21. As did Gibbs J, at p 8. Mason J and Aickin J, however, spoke in stronger language. 62Aickin J said this at page 22: The principle that parties to litigation are entitled to be present and heard, either in person or by a duly authorized legal representative, is of fundamental importance and involves the consequence that, where through no fault of his own, a party is deprived of that entitlement, prima facie any order of a court made against him may be set aside by that court. I can see no basis for confining the application of that principle to cases where there has been a failure to serve the process or give other appropriate notice. (Emphasis added). Mason J (with whose judgment Aickin J was agreeing) also equated "the jurisdiction" when a party's absence is due to no fault of his own, with the jurisdiction to set aside a judgment obtained without service of process. Gibbs J saw those considerations as manifestations of the same principle. But his Honour thought the power when the absent party had been served was "discretionary", the service of process distinguishing the cases. However Gibbs J also said "there was no reason to refuse ... the application" if there was a real question to be tried (pp 8 - 9). 63Where legal process is not duly served, a defendant is entitled to have a judgment obtained on it set aside ex debito justitiae, that is to say, as of right. The judgments of Mason J and Aickin J which equate the absence of a blameless party with that category of case raise the question whether proof that Mr Boensch was absent through no fault of his own, would require the Tribunal to accede to his application for a re-hearing. For the reasons which follow it is unnecessary to answer this question because the Tribunal was not satisfied that Mr Boensch was without fault on the material he put before it, which decision, in my view, was open on that material. 64The central question presented by s 68 to the delegate of the Chairperson is whether there was a substantial injustice. That expression is well understood in appellate jurisprudence as involving an inquiry into whether "the re-hearing applicant" was deprived of the possibility of a favourable result. In answering this question one needs to bear in mind that what may be involved is a denial of natural justice. The High Court of Australia in Stead v State Government Insurance Commission (1986) 161 CLR 141, writing of the position of an intermediate Court of Appeal exercising its powers on an appeal by way of re-hearing, put it in the following terms: However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial. 65Making all necessary adaptations for the difference in context between an appeal by re-hearing and an application under s 68, this statement applies in substance to the exercise of the powers of the Tribunal under s 68 when the complaint underpinning the application is an asserted denial of natural justice. 66I have found on the evidence before me that Mr Boensch's concern about and pre-occupation with his then as yet undiagnosed, but potentially serious, medical condition caused his absence from the hearing because he was extremely distracted and missed the date. His evidence, which was unchallenged in this regard, supported by a certificate of Dr Janet Davis dated 10th September 2013 (not before Member Rosser), explains that he needed to stay close to a toilet during those two days of preparation for the internal examination. His full explanation, therefore, is that he was unable to attend and his preoccupation led to his failure to make prior contact with the Tribunal to explain his expected absence and seek an adjournment. This evidence satisfied me that his absence from the hearing on 30th July 2013 was due to no fault of his own. Neither was it due to any fault on the part of the Tribunal or Donovan Electrical. But that latter consideration is not to the point. 67I am also satisfied that there was a real question to be tried because Mr Boensch disputes the version of Donovan Electrical and his own version, if accepted, would defeat Donovan Electrical's claim. Accordingly, on the evidence before me, he has shown substantial injustice by application of the principle discussed in Stead. 68However do these conclusions mean that Mr Boensch has established jurisdictional error on the part of the Tribunal when it refused his application for rehearing? I will answer this question by reference to the oft-cited passages in Craig v South Australia (1995) 184 CLR 163 at 179 and Minister for Immigration v Yusuf [2001] HCA 30; 206 CLR 323 at 351 [82], bearing in mind that the list of factors referred to in those passages "is not exhaustive". 69It is important to keep firmly in mind that Mr Boensch did not put his case to the Chairperson's delegate in the same way as it was put to this Court. I repeat, here he relied both on medical unfitness and an explanation for not notifying the Tribunal of his unfitness. In the Tribunal on his first application for rehearing he relied merely upon his unfitness. The Tribunal Member correctly noted that the medical certificate provided did not cover his alleged unfitness on 30th July 2013, nor was any explanation given of "his failure to request an adjournment on the day of the hearing if he was unfit to attend". 70I am conscious that jurisdictional error "may be established by any admissible evidence": Allianz Australia Limited v Kerr [2012] NSWCA 13 at [15]. However, the central question raised by s 68 was whether the Chairperson (or his delegate) was satisfied "that the applicant may have suffered a substantial injustice" (my emphasis). By s 68 (7), an order for rehearing may not be made unless it appears to the Chairperson that there may have been a substantial injustice. This brings into play the considerations identified by Basten JA in QBE (Australia) Limited v Miller [2013] NSWCA 442 at [36], which is in the following terms: Once it is accepted that the characterisation of the information is a matter to be considered in the first instance by the proper officer and not one to be determined by this court afresh on a judicial review application, the review proceedings are limited to determining whether the proper officer's opinion has been properly formed according to law: Buck v Bavone [1976] HCA 24 ; 135 CLR 110 at 118-119 (Gibbs J); D'Amore at [220]. The critical question is thus "whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ). Further, as explained by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432: If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide. (See also Roger v DeGelder (2011) 80 NSWLR 594 at 114 by Macfarlan JA). 71An important consideration to be drawn from these authorities for present purposes is that it is not open to me to decide the jurisdictional fact for myself. My function is limited to determining whether the opinion of Chairperson's delegate "has been properly formed according to law". Accordingly, it would be impermissible for me to decide the question posed by s 68 (7) on the basis of my findings drawn from the evidence I have heard that was not lead before Member Rosser. 72By the order she made, Member Rosser demonstrated that she directed herself according to the central question which was whether she was satisfied that the applicant may have suffered a substantial injustice: the order she pronounced was in the following terms: The application for a re-hearing of matter HB13/20241 was not granted as the delegate of the Chairperson is not satisfied that the applicant may have suffered a substantial injustice. From her reasons as set out above at [57], it is also clear that she correctly identified the central question in the circumstances of the present case as whether Mr Boensch had provided a satisfactory explanation for his non-attendance i.e. had he put forward material that satisfied the Chairperson's Delegate that the preferable or correct view was that his failure to attend was through no fault of his own. With respect, the Tribunal Member gave cogent reasons for rejecting the explanation that was actually provided to her. And it doesn't matter that a better explanation may have been available, as was given to me. I am of the view that Mr Boensch's previous failure to comply with the Tribunal's procedural directions was relevant to the Member's assessment of the explanation proffered. She also took into account whether "the assertions made by the re-hearing applicant ........ support a conclusion that the Tribunal made an error in deciding the application". This was arguably irrelevant because the question for her was not whether the previous decision was in error, but whether Mr Boensch may have suffered a substantial injustice because of a denial of natural justice. Having said that, as Mr Boensch argued that the decision of Member Smith was against the weight of the evidence then perhaps her conclusion that Mr Boensch had not demonstrated error is referrable to that ground. On balance, that is the conclusion I draw. 73The critical question then is whether Member Rosser's determination was irrational, illogical or not based on findings, or inferences, of fact supported by logical grounds according to the material available to her. That question should be answered in the negative. 74Additionally it has not been shown that she misdirected herself by asking the wrong question, or that she failed to consider matters she was required to consider, or took irrelevant matters into account: Buck v Bavone at pp118-9. Her decision is not vitiated by jurisdictional error.

Decision under s 68(9A) of 30th September 2013 75S 68 (9A) provides for the making of a further or second application. It is in the following terms: (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. 76As will readily be seen, this ground is strictly circumscribed. Moreover, it too depends upon the Chairperson's subjective satisfaction, and the principles I have discussed at [70]-[71] apply equally here. 77Mr Boensch's further application focused upon his medical condition. He provided an additional medical certificate covering the 30th and 31st July 2013 (from Dr Davis, see [66]), and spelt out in more detail his particular inability to travel to the Tribunal because of a need "to use the bathroom every 30 minutes". He added this: I unfortunately did not advise the (Tribunal) of my absence prior to the hearing date as I was so overwhelmed physically by the preparation for upcoming surgery that I overlooked contacting the Tribunal. He also explained that he had not complied with the procedural directions because he was under the belief that he was only required to respond to Donovan Electrical's material. He "did not realise [he] had to contact the other party or the Tribunal" if Donovan Electrical failed to comply with its obligations. Again he set out his version and said why, if his version was accepted, Member Smith's decision would have been different. 78The Chairperson was not satisfied that significant new evidence had arisen since the first application for a rehearing was refused. He gave the following reasons: Applicant seeks an extension of time to file evidence in support of the second application for a rehearing in order to consider the transcript from 30/7/2013. No request for the transcript has been received. In any event the request is misconceived in view of the limited grounds for a secondary hearing application -see s 68(9A) of the CTTT Act. This request is refused. S 68(9A) requires there to be significant new evidence to have arisen since the first rehearing was refused (heard on 4/9/2013). There is no such evidence. I note the medical condition of the applicant was foreshadowed and therefore an application to adjourn could have been made. There is no basis to grant this application for a rehearing. 79As I have said the s 68(9A) test is a very narrow one. It is also conjunctive: there needs to be both significant new evidence and that new evidence has to suggest a substantial injustice. Significantly, the statutory pre-condition about "new evidence [that] has arisen since the application was refused" obviously expresses a composite idea. It seems to me that the idea of significant new evidence relates to evidence capable of affecting the outcome of the proceedings, not just the rehearing application. Moreover, it must be new evidence in the sense of not being previously available, rather than simply additional: the evidence has to have "arisen" since the first application for rehearing was refused. This collocation of words calls for something in the nature of fresh evidence: Aida v Concrete Concepts (Aust) Pty Ltd [2013] NSWSC 72 at [59] - [60]; Milstern Retirement Services Pty Ltd v Carton [2006] NSWSC 937. Mr Boensch's enhanced and expanded explanation, which is effectively the explanation he provided in evidence before me, was not fresh evidence in the sense of being previously unavailable and not obtainable by the exercise of reasonable diligence. It was not capable of satisfying the language of s 68(9A)(a). 80Moreover, the significant new evidence itself had to suggest substantial injustice. It was not enough for Mr Boensch to amplify the explanation for non-attendance previously given. Manifestly, the full explanation could have been given in the first application for a rehearing. 81Applying the legal tests expressed at [70]-[71] above, I am not satisfied that Mr Boensch has demonstrated jurisdictional error in this third decision in the relevant sense of a constructive denial of jurisdiction, or at all.

Mr Boensch's complaint about the adequacy of the reasons provided by the Tribunal 82The requirement for the Tribunal to give reasons for its decisions is dealt with in s 49 of the Repealed Act. It is of interest that the express statutory duty to provide reasons is triggered by a request of a party for a statement of reasons for a decision. The content of reasons is specified in s 49(3) in the following terms: (3) The statement may be brief but it must: (a) Set out the decision and the reasons for it; and (b) Set out the findings and any material question of fact, and (c) Refer to the evidence or any other material on which the findings of fact were based. 83I infer from the evidence before me that the reasons given for each decision under review were provided without a s 49 request. 84I have summarised Member Smith's reasons at [25] - [26]; those of Member Rosser at [56], and those of the Chairperson at [78]. I think it self-evident that the reasons provided for each decision were sufficient to comply with the statutory obligation, had it been invoked. Any implied obligation, over and above the obligation imposed by s 49, to give reasons at the time of the decision cannot be more onerous than the statutory obligation. Anyone reading the reasons of the Tribunal for its various decisions in this case fairly and as a whole would readily understand what was decided and why. No evidence or material relevant to each decision appears to have been overlooked or ignored. I reject this ground of complaint. 85That I may have made a different decision from Member Rosser and the Chairperson is explicable by reference to this Court's limited role, and the consideration that different evidence was led before me. 86For these reasons the application for judicial review fails. 87My orders are: (1)Proceedings dismissed; (2)The plaintiff to pay the first defendant's costs of and incidental to the proceedings on the ordinary basis forthwith after they have been agreed or assessed.

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: 24 September 2014