(3) The failure of a party "to attend the hearing" : clause 29(1) of the Regulation.
73 In relation to (1), a party may be notified to attend at a place at which a hearing will be conducted at a date and time specified. The attendance at those premises at that time and date would constitute compliance with a notice under s.25 of the Act where the notice does not specifically call for attendance at a particular hearing room or courtroom in the premises.
74 In the present case, Mr Cahill attended the premises of the Local Court at Tweed Heads on the hearing date and at the appointed time. It could not be suggested in the circumstances of this case that he failed to comply with a notice issued under s.25(1) of the Act, and no submission to that effect was made.
75 As to (2), the failure of a witness to attend is not one expressed in terms of a failure to attend a hearing. There may be circumstances, for example, where there is no hearing in relation to a witness who produces documents to the Registrar or other officer of the Tribunal in accordance with proper procedure in answer to a summons.
76 As to (3), a failure to attend the hearing is a failure to attend the place at which the hearing will be conducted and must, in my opinion, refer to a failure to attend the courtroom or hearing room in which the hearing is to take place. This, as noted above, was the construction which Mr Scruby contended for in his submissions.
77 Accordingly, in the present case, whilst the plaintiff, by its director Mr Cahill, attended in response to the notice of proceedings, he did not actually attend "the hearing" by entering the hearing or courtroom at the appointed time of 2.00 pm. It is in those circumstances that the defendants rely upon the discretionary power available to the Tribunal to proceed on an ex parte basis under clause 29 of the Consumer, Trader and Tenancy Tribunal Regulation.
78 Whilst the defendants' contended that the discretionary power in the Tribunal to proceed in the absence of a party under clause 29 provided a complete answer to the plaintiff's claim for relief, I do not consider, in the circumstances of this case, that it does. In particular, I do not accept, for reasons stated below, that an exercise of the discretion under clause 29, in the circumstances of the present case, necessarily precludes a finding that the plaintiff was denied procedural fairness.
79 The Tribunal's power to proceed to hear a matter in the absence of a party who has failed to attend a hearing is a power that must be considered and exercised in the context of the statutory obligations of the Tribunal under the CTTT Act. Those obligations required it, in the present case, to give due consideration to the particular circumstances that were disclosed in evidence concerning the plaintiff's non-attendance before it exercised the power.
80 In Italiano v Carbone [2005] NSWCA 177, Basten JA (dissenting on the issue as to whether procedural fairness had been accorded by the Tribunal but whose statement of principle was not the subject of disagreement) observed at [106]:-
"There are, as already noted, provisions which allow the Tribunal 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. …"
81 Basten JA also observed in that case at [80] that the content of procedural fairness is one that is capable of control by the Parliament and it must be determined in its statutory context. His Honour stated:-
"…the general law principles are relevant to the effect of the specific statutory requirements and inform the consequences of breach, where those consequences are not made explicit by the statute. In the present case, the statutory provisions tend to expand, to an extent, the scope of obligations which might otherwise have been implied: but because they serve the goals of procedural fairness, invalidity may more readily be inferred as the intended consequence of breach."
82 His Honour there also raised the question at [85] as to whether, in the circumstances, procedural fairness required, in relation to the question of an adjournment of proceedings, that the proceedings be adjourned in the interests of the claimant, identifying as one possibility whether the circumstances were "… otherwise such that the Tribunal itself had an obligation to consider offering an adjournment". Reference was also made to authorities that considered circumstances in which, although an adjournment application had not been made by a party, an obligation may arise in the Tribunal to adjourn a matter. That obligation was identified as an incident of the Tribunal's duty to act judicially.
83 Included in the case law to which his Honour referred was the judgment of Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 342 (25), wherein the following observation appears:-
"where a Tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe … If, in all the circumstances, the failure of the Tribunal to adjourn the matter to enable Dr Evans to be called as a witness or to alert the appellant of his right to apply for such an adjournment constituted a denial to the appellant of a reasonable opportunity of presenting his case, both the common law principles applicable to a tribunal under a duty to act judicially and the specific provisions [of the Act] entitle the appellant to the intervention of this Court."
84 In Sullivan (supra), following reference to provisions in the Administrative Appeals Tribunal Act (s.33(1)(b)) being the equivalent to s.28(3) of the CTTT Act, Deane J concluded at 343 (10):-
"A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment … that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a Tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506). In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposed upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled."
85 Returning to the facts of the present proceedings, this was not a case simpliciter of a party failing to attend a hearing. Mr Cahill, on behalf of the plaintiff as the respondent before the Tribunal, had, as earlier noted, in fact, attended minutes before the appointed time at the Tweed Heads Courthouse. That fact was made known to the Tribunal member by one or more of the defendants.
86 The fact of Mr Cahill's presence at the courthouse immediately prior to 2.00 pm on the hearing date demonstrated in itself the plaintiff's interest in the proceedings that were to be heard by the Tribunal. The Tribunal member having been alerted to his presence, directed that the Tribunal's attendant find Mr Cahill. The fact that the Tribunal's attendant apparently did not find him so soon after the commencement of the hearing may, as a matter of theoretical possibility, have been explicable by a number of circumstances. Mr Cahill may, for example, have been urgently required to have gone elsewhere or he may have become temporarily indisposed.
87 The undisputed fact, however, was that Cahill and Mr O'Reilly at all material times were in fact waiting outside the hearing room. The fact that the Tribunal's attendant apparently saw them but did not approach or speak to either of them, is indeed a puzzling feature of the case. Although there was some evidence that the attendant was told to call the plaintiff and/or Mr Cahill outside the hearing room, both Mr Cahill and Mr O'Reilly's evidence indicates that the attendant did not do so. It was not suggested to either of them in cross-examination that their evidence was erroneous in this respect. I consider on the evidence it is probable that the Tribunal attendant did not call the matter or Mr Cahill's name when he left the hearing room as directed by the Tribunal.
88 The amount of the claim for commission by the plaintiff, the subject of the application before the Tribunal, was a very substantial one indeed. As Spigelman CJ in Italiano (supra) observed at [12]:-
"The Tribunal is a body which has been granted important powers, including powers which are not limited to small disputes in which speed and economy are entitled to determinative weight. It has a jurisdiction with respect to building claims up to $500,000 and the amount awarded in this particular case is almost double the jurisdiction of the Local Court. There are real limits to the extent to which this Court should countenance the Tribunal ignoring the basic requirements for its proper functioning, as laid down by the Parliament directly, or indirectly through Regulations which are capable of being disallowed by Parliament."
89 Although the present case is not a building claim and there is no issue in the present case of the Tribunal ignoring any particular requirements in the Regulations, the above observation of the Chief Justice I consider to be pertinent to the obligation to accord procedural fairness in the present case. The matters before the Tribunal involved a substantial claim. There was no evident urgency that required the applications to be heard and disposed of without delay. They were, on the evidence, disposed of within a period of approximately 20 to 25 minutes after 2.00 pm.
90 In the circumstances in which the Tribunal member had been informed that the plaintiff's director had been seen only a few minutes before waiting outside the hearing room, the minimum requirement in terms of taking "… measures as are reasonably practicable" as required by s.28(4) was to adjourn the proceedings for a short time to permit due inquiry to be made. On the known facts, a short adjournment would, with certainty, have revealed the fact that, although apparently unknown to the court attendant, Mr Cahill (and Mr O'Reilly) were and had at all times been waiting outside the hearing room with the intention of participating in the hearing. That simple step would have ensured that the plaintiff was accorded the opportunity of participating in the hearing.
91 Where there is a failure to attend in terms of s.25(2), there may well be circumstances in which the Tribunal is entitled to proceed to hear a matter in the absence of a party. However, in the circumstances of the present case in which there was no failure to attend as required by that section and the Tribunal member was told that Mr Cahill had attended and was seen in the interview room just before 2.00pm, the Tribunal, in my opinion, was obliged as an incident of its judicial duty in affording procedural fairness, as a minimum, to have adjourned the hearing for a short time to enable further inquiries to be made. In not doing so the consequence was that a decision and an order were made without the plaintiff having the opportunity to participate. This occurred in circumstances in which the decision and order could not be the subject of any subsequent re-hearing by reason of Regulation 24(1)(a).
92 The fact that clause 29 conferred a discretionary power on the Tribunal does not, in my opinion, render any exercise of it unreviewable on procedural fairness grounds. The cases involving decisions refusing adjournments, I consider, illustrate that point plainly enough.
93 I do not accept, as was submitted for the defendants, that once clause 29 is engaged that that is an end of the matter. That provision in the regulation, it is true, confers a discretionary power upon the Tribunal. It is also true that the width of any discretion conferred on a decision-maker may be relevant in determining the content of the obligation to accord a party procedural fairness: Judicial Review of Administrative Action, Aronson, Dyer and Groves, 3rd ed., 2004, at p.486.
94 However, clause 29 cannot, of its own force, operate in disregard of the CTTT Act, in particular, the mandatory provisions in s.28(4) and s.35. The discretion under clause 29, like a discretion in a court or tribunal to grant or refuse an adjournment, is subject to the requirements of procedural fairness having due regard to the circumstances of the particular case.
95 In general, where a party establishes a breach of procedural fairness against it, a Court will exercise its discretion and grant relief unless satisfied that the breach could have had no effect on the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. This qualification underlines the object of the law, namely, to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14.