Consideration
53The circumstances in which Mr Cheung found himself on the first day of the hearing were obviously unenviable. He was by then without legal representation, even though that unfortunate position had only just occurred. He spoke and understood only limited English, and could not be expected to have been equipped to master the detail of the case against him easily or quickly, if at all. He was not himself legally trained or experienced. In the events that occurred, the Yangs' affidavits had not come into his personal possession until approximately lunchtime on that day. His case in chief had presumably been well prepared by his former solicitors, but they do not appear to have arranged for any affidavits or other evidence in reply, assuming that any were necessary or permitted. It is difficult in the circumstances to feel confident that the adjournment, that was quite properly afforded him, could have been of any real assistance or benefit to him.
54The first issue to be determined is therefore whether Mr Cheung was given a reasonable opportunity to call or give evidence or otherwise present his case and to make submissions in relation to the issues in the proceedings. There does not appear to be any question that the relevant opportunity was given to him in relation to the calling and giving of evidence. I put aside for the moment the related issue concerning cross-examination, and the related question of what Mr Cheung might reasonably have considered or believed were in fact the critical issues upon which the case would ultimately be determined. When the case commenced before the Tribunal on the first day, both sides had prepared and served their lay and expert evidence. The departure of Mr Cheung's legal team meant that he had not personally seen it.
55At a purely factual level, Mr Cheung was also given an opportunity to make submissions. The transcript bears witness to the fact that he did so, with the benefit of an interpreter, and that he had a detailed understanding of the factual issues, even if his appreciation of the legal implications was less acute.
56The question calling for consideration is whether the expression "reasonable opportunity" encompasses more than matters of timing. If Mr Cheung had retained his original lawyers for the hearing, there can be little doubt that he could have made no complaint that he had not been given a reasonable opportunity in any relevant respect. The expression only attracts attention in this case now by reason of the particular suboptimal characteristics of Mr Cheung's predicament at the time.
57In my opinion Mr Cheung was given a reasonable opportunity of the type specifically contemplated by s 35 of the Act. It should be noted that the Tribunal sought confirmation on the second day of the hearing that both parties had presented all of their evidence and that they were happy to proceed to submissions. Mr Cheung agreed that he was happy to adopt that course. It might be thought or assumed that his appreciation of what that entailed was affected by his lack of English or his lack of legal representation or experience. However, the Tribunal was faced with what must be a regularly reoccurring situation and was required to approach the matter in the circumstances as they were then known. Mr Cheung had not sought to contend that he was disadvantaged by his lack of English. He did not ask the Tribunal to give him an adjournment to obtain alternative legal assistance. He appears readily, at least to all outward appearances at the time, to have accepted the Tribunal's proposed method of proceeding. He did not give an indication that he did not comprehend what was to follow. It cannot therefore be assumed that his implicit suggestion, that he should have received somewhat more beneficial treatment by the Tribunal in the circumstances and was therefore not relevantly given a reasonable opportunity, should be accepted.
58Nor do I consider that the Tribunal erred in directing that there was to be no cross-examination. Once again, this issue has potential to emerge as part of Mr Cheung's other concerns. This is referred to later in these reasons. However, strictly and narrowly construed, the issue is not of assistance to Mr Cheung in this case.
59Mr Cheung's complaint can only be that he was not given an opportunity to cross-examine the Yangs or their witnesses, not that he was not tested in cross-examination. The only witnesses that Mr Cheung identified as a potential candidate for cross-examination was Mr Bae, and then only on the question of some relatively small amounts paid to him for plumbing and electrical work. Denying Mr Cheung the opportunity to cross-examine him would not attract a legitimate complaint in the circumstances, as well for the reason that the contest about the quantum of the cost of the works effectively disappeared in the wake of the Tribunal's acceptance of the value of the works performed by Mr Cheung.
60It was wholly within the legitimate power of the Tribunal to dispense with cross-examination if it thought fit in accordance with the terms of s 28 of the Act. The only limitation upon its power to do so consists in its obligation to conform to the rules of procedural fairness. Refusing to permit Mr Cheung to cross-examine Mr Bae did not offend those rules.
61Denying Mr Cheung the opportunity to call his wife to give further (oral) evidence also did not offend any rule of procedure or fairness. Mrs Cheung had sworn an affidavit in support of his case in chief. Everything that she might have been expected to contribute to the proceedings was no doubt contained in that document. Mr Cheung did not identify a late emerging issue to which her proposed further evidence was to be directed. An application to expand her evidence fell to be determined by the Tribunal having regard to the equal opportunities that both sides had had prior to that time to formulate their respective cases. Once again it seems highly likely that no criticism of the Tribunal could ever have been made of its decision not to allow Mr Cheung to call his wife if lawyers had continued to represent Mr Cheung. No different result should follow only because Mr Cheung appeared for himself or required an interpreter.
62The only possibly viable basis upon which Mr Cheung could seek to impugn the Tribunal's procedures consists in the proposition that its decision was based upon a finding of fraud against him, or what for all relevant purposes was the equivalent of such a finding, requiring or demanding that he should have been confronted directly with the relevant allegation and have been given an opportunity to deny it. The corollary of this contention is that the Tribunal could not have arrived at any legitimate conclusion on the point adverse to the interests of Mr Cheung unless comfortably satisfied of the matters put against him. It is in this context that the issue of cross-examination, being cross-examination of Mr Cheung rather than cross-examination by him, re-emerges for consideration.
63It will be recalled that the decision of the Tribunal adverse to Mr Cheung turned upon the question of whether or not it was "just and equitable" for him to recover money in respect of work performed by him despite the fact that he failed to arrange the required insurance as a prerequisite to the performance of residential building work. The Tribunal must have found that it was not just and equitable in the circumstances of this case. That is because there is no absolute impediment to a contractor, such as Mr Cheung, recovering the cost of work performed upon a quantum meruit basis, other than a court or tribunal considering that such recovery was not just and equitable. Senior Member Smith put it this way at [67] in Scott v Dimov:
"[67] The effect of s 94(1)... is to remove any right by a builder to claim in quantum meruit (even if otherwise meritorious) if the necessary insurance is not in place. Section 94(1A) reinstates the right in circumstances where it is 'just and equitable' to do so."
64In this case the Tribunal specifically determined the value of the work performed by Mr Cheung to which amount it seems apparent he would otherwise have been entitled.
65It does not appear to be controversial that the Tribunal would not have been required to find that Mr Cheung's conduct was fraudulent or dishonest before it could have come to the conclusion that it was not just and equitable for him to recover the costs of the work he performed. A determination of what is just and equitable is not necessarily coextensive with the presence of absence of fraud or dishonesty. It is perfectly plausible that a Tribunal might conclude, in the absence of any allegation or evidence of fraud or dishonesty, that a particular builder was nonetheless not entitled to recover because it did not consider it otherwise just and equitable that he should do so.
66Mr Cheung's submissions in this case appear to invite a consideration of two matters. First, the extent to which, if at all, it was the Tribunal's decision that it was not just and equitable in the circumstances of this case that he should recover money in respect of the work he performed on a quantum meruit basis. Secondly, the extent to which, if at all, that decision proceeded or was based upon a finding that Mr Cheung was also fraudulent or dishonest. It is at the heart of Mr Cheung's contentions in this Court that he was unfairly denied the opportunity to put the question of his alleged fraudulent conduct and his honesty in issue. Implicit in this approach is that the exercise of the Tribunal's discretion was or may arguably have been adversely affected by its failure to afford Mr Cheung procedural fairness.
67It is tolerably clear that the Tribunal's decision, in finding that he was "not entitled to a quantum meruit claim", was a decision made in accordance with s 94(1A) of the Act, that the Tribunal did not consider it just and equitable that Mr Cheung should recover on that basis. It was based in terms upon the Tribunal's concern that Mr Cheung performed work knowing that the cost exceeded the agreed price without forewarning the Yangs of that fact or of his intention to claim an amount representing nearly three times the amount of the original price. As the Tribunal emphasised, it was "of crucial importance in this particular case, that [Mr Cheung] made no attempt to advise the [Yangs] of the actual mounting costs as the work proceeded." The Tribunal effectively determined that it was not just and equitable that Mr Cheung could expect or require the Yangs simply "to sit down and settle the total amount" or to "calmly accept an increase in costs from the original estimate of $30,000 to a sum approaching or even exceeding $80,000." Whether or not that conclusion is capable of successful challenge is neither presently relevant nor a justiciable issue in this Court. Proceedings between the parties commenced in the District Court that presumably raise that issue are currently stayed.
68The Tribunal's decision is also apparently based upon its finding at [32] "that [Mr Cheung] deliberately misled the [Yangs] as to his licence status" and its finding at [34] "that the failure to obtain the necessary licence or the necessary insurance was wilful and deliberate and (at least in relation to the licence) done with the intent to mislead potential clients and the [Yangs] in this case in particular." Was Mr Cheung denied a proper opportunity to present his case on the matters that supported these findings and thereby denied procedural fairness?
69Mr Cheung relied in the Tribunal upon his affidavit sworn 11 November 2011. Paragraph 61 of that affidavit is in these terms:
"61. I have worked as a builder since 1985. I started working in Japan in 1985 and commenced working in Korea in 2003. Exhibited to me at the time of swearing this affidavit and marked 'AI' is a copy of a Business Registration Certificate in respect of my work in Korea, together with a translation. I entered into Australia on or about 17 January 2004 and commenced working with Chul Dong Park, whose licence number is 152062C. I worked with Mr Park until about 2007. I have now had it explained to me that I need to be licensed in my own right. I did not understand that I could not trade because of my association with Mr Park."
70A material order form on the stationery of Universal Roofing and Accessories Pty Ltd is exhibited to Mr Cheung's affidavit. His stamped details are on that document, including "Carpenter Lic. No. 152062C."
71On 29 June 2012 Mrs Yang swore an affidavit for use in the Tribunal. She referred at paragraph 4 of her affidavit to a conversation with Mrs Cheung in the course of which Mrs Cheung told her that Mr Cheung was "qualified in Australia as a builder and also holds a carpenter's licence." Paragraph 8 of that affidavit is in these terms:
"8 After this meeting Mr and Mrs Cheung would visit our home more frequently. They would come in Mr Cheung's work vehicle, on which I noticed a sign containing the name 'Oohirahome Interior Japan', an ABN number and his carpentry licence number. This confirmed my initial opinion of Mr Cheung as an accomplished and qualified builder in Australia as had been represented to me by his wife. It was only much later on that I came to be aware that Mr Cheung did not in fact have a carpentry licence at any time while he was undertaking the building work for us."
72Mr Yang swore two affidavits in effectively identical terms dated 30 June 2012 and 2 July 2012. Neither affidavit referred to the issue of Mr Cheung's unlicensed status, apart from what his wife had told him concerning her conversation with Mrs Cheung, or to the question of insurance.
73It can be seen that the original affidavit evidence upon which the parties relied placed very little emphasis upon the fact that Mr Cheung did not have a licence. Although the two issues are necessarily linked, the affidavit evidence also failed to refer at all to the fact that he did not have insurance. The emphasis and apparent importance that these issues received in the Tribunal's decision are therefore disproportionate to the attention it received in the parties' respective cases in chief. It would appear to have been given somewhat more emphatic attention during the course of final submissions, with the consequence that it also became prominent in the final result. It was not, however, an issue that was obviously central to the way in which the parties conducted the case, which instead revolved around what occurred when Mr Cheung presented the Yangs with a large and unexpected invoice, rather than around their original decision to choose Mr Cheung as their builder in the first place because they understood him to have been, and placed reliance upon the fact that he was, both licensed and insured.
74Mr Cheung's complaint distils to the contention that the Tribunal decided the case against him without indicating that it was minded to treat the issues of his licence or his insurance as important or significant, or at least as important or significant as it ultimately appears to have become, and in those circumstances without inviting a response from Mr Cheung about it before doing so.
75The modern statement of the hearing rule appears in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584-5 as follows:
"The law has 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...
In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations...
When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?"
76One aspect of the hearing rule is that a person should have matters adverse to that person or that person's interest put to that person for comment or evidence before an adverse decision is made. A decision-maker should not make a decision having had regard to undisclosed material adverse to a party that was credible, relevant and significant to the decision to be made without first putting that material to that person: Kioa v West at 629; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57; Muin v Refugee Tribunal [2002] HCA 30; (2002) 76 ALJR 966. Furthermore, a decision maker should bring the critical issue or factor on which the decision is likely to, or may possibly, turn to the person's attention so that he or she might have an opportunity to deal with it: for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [81]. Finally, a decision-maker should not wittingly or unwittingly mislead a party as to the importance, or possible importance, of a factor to the decision-maker: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah; Muin v Refugee Tribunal.
77For all anyone knows, the Tribunal may well have been satisfied that it was not just and equitable for Mr Cheung to recover on a quantum meruit basis, even without proceeding to find that he had deliberately misled the Yangs as to his licence status or that he had wilfully and deliberately failed to obtain the necessary licence or insurance with the intention of misleading them. Be that as it may, the Tribunal made those findings. They cannot be quarantined or excised from the Tribunal's decision. The findings apparently underpinned the ultimate decision to some extent. Nor were they issues that were obvious or apparent from the evidence upon which the case was determined or issues that were put to Mr Cheung during his submissions at the end of the hearing. They were not identified from the content of any cross-examination because there was none. At best the issues arose, as I have intimated, at the end of the proceedings and only then from the way in which counsel for the Yangs sought to characterise the fact that Mr Cheung was neither licensed nor insured.
78As unfortunate as it is to extend or add to the time and cost of this litigation, it seems to me that Mr Cheung was denied a fair and reasonable opportunity to know and understand, and thereby to deal with, the prospect or possibility that the Tribunal was considering finding against him on any of the bases referred to in [32] or [34] of its decision. As I have indicated, whether or not the same conclusions at which the Tribunal arrived would or could have followed without such findings is wholly beside the point. They form part of the Tribunal's decision and Mr Cheung could be forgiven for being surprised by them. He was in my opinion denied procedural fairness in the sense contemplated by s 65(3)(b) of the Act.