This an internal appeal against a decision made on 8 February 2017 in the Consumer and Commercial Division of the Tribunal in proceedings HB17/01372. The proceedings were brought under the Home Building Act 1989 (the HB Act). The Tribunal ordered the appellant (the builder) to pay the respondents (the owners) the sum of $2420.
The Notice of Appeal was lodged on 15 February 2017, which is within 28 days from the day on which the appellant was notified of the decision: cl 25(4)(c) of the Civil and Administrative Rules 2014 (the Rules). The appeal has therefore been lodged within time.
For the reasons set out below, we have allowed the appeal, set aside the order made by the Tribunal and remitted the matter to the Tribunal for re-hearing.
[2]
Scope and nature of the appeal
Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because:
1. the decision of the Tribunal under appeal was not fair and equitable, or
2. the decision of the Tribunal under appeal was against the weight of evidence, or
3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:
… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,
[3]
Background
The builder contracted with the owners to construct a granny flat.
The parties fell into disagreement and both lodged applications in the Tribunal under the HB Act.
On 24 October 2016, when the applications were listed for formal hearing, the parties reached an agreement and the Tribunal made orders by consent reflecting their agreement.
In the builder's application (HB 16/31646) the Tribunal ordered the owners to pay the builder $9610 by 21 November 2016. In the owners' application (HB 16/33968), the Tribunal ordered the builder to undertake specified work in a proper and workmanlike manner on or before 21 November 2016. The work to be undertaken by the builder was described as:
Install Manhole in ceiling
Wash / clean external brick wall
Inspect tiling and repair / replace as required on floor, door entrance, kitchen, bathroom and ceiling corners
Replace / repair front and back doors
The owners claim that the builder did not complete the work as ordered. They commenced further proceedings against the builder on 10 January 2017. They claimed payment of $3000, on the basis that the builder had not complied with the orders made by the Tribunal on 24 October 2016.
The owners' application (the renewal application) was brought under cl 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). Clause 8 of Schedule 4 relevantly states:
8 Renewal of proceedings in respect of certain Division decisions
(1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.
(2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.
(3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act.
(4) When proceedings have been renewed in accordance with this clause, the Tribunal:
(a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or
(b) may refuse to make such an order.
The renewal application was listed for hearing on 8 February 2017 before the Tribunal Member who had made the consent orders in October 2016. The notice of hearing sent to the builder was addressed to the builder at an email address and not at the street address provided in the application. It appears that the email address is an address the builder provided to the Tribunal in connection with the earlier applications, although the material before us does not indicate whether the builder had agreed to be notified of earlier hearings to that email address.
The builder did not attend the hearing on 8 February 2017. The Tribunal heard and decided the application on that day, in the absence of the builder, taking into account the evidence provided by the owners.
[4]
The Tribunal's decision
The Tribunal gave brief reasons for decision as follows:
On 24 October 2016, on File 16/33968, the Tribunal made consent orders for rectification work to be carried out by the respondent builder.
The applicant has applied for the application to be renewed as the work has either not been completed or not completed in a proper and workmanlike manner.
The applicant provides photographic evidence of the defects and incomplete work and quotations for the completion of the work.
The quotes establish that the work can be completed for $2420.
Orders are made accordingly.
[5]
Evidence and submissions
In making a decision on the appeal, we have considered the Notice of Appeal filed by the appellant, the Notice of Reply filed by the respondent, the evidence and written submissions filed by both parties and oral submissions made during the hearing by the owners and the builder, both of whom were self-represented.
[6]
Notice of appeal
In the Notice of Appeal, the builder argues that the owners did not allow him to complete the work that was the subject of the Tribunal's consent orders on 24 October 2017. He seeks an order that would allow him to complete the work in accordance with the Tribunal's order.
The builder seeks leave to appeal on the basis that the decision was not fair and equitable because the owners did not allow him to complete the work, although they were asked to on several occasions. The builder states that the lack of availability of the owners' tenant was a problem. He states that he started doing the repairs, but because of a lack of proper tools, one of the jobs could not be completed. The builder claims that he informed the owners that he would get a professional joiner to complete the rest of the work, but the owners did not allow him to complete the job.
The builder also claims that the decision was against the weight of evidence. Attached to the Notice of Appeal are screen shots of text messages, which the builder claims demonstrates that the owners did not allow him access to complete the work. The builder claims that these screen shots also constitute significant new evidence that was not available at the time of the hearing.
The screen shots provided by the builder indicate that he contacted the owners about access on Saturday 19 November 2016, that access was given on 21 November, that arrangements were made to give the builder further access on 5 December, that the builder arranged to come to the premises on 6 December, that the builder cancelled that arrangement and that the owners thereafter denied that builder further access.
[7]
Builder's submissions
In accordance with directions made by the Appeal Panel at call over, the builder provided written submissions in support of the appeal on 27 March 2017.
In his submissions, the builder raises for the first time the manner in which he was notified of the hearing on 8 February 2017. He states that the notice of hearing was sent to his email account. He claims that he was not informed of the hearing by mail from the Tribunal or by the owners.
The builder also raises the following issues in his submissions:
He was unable to get access until 21 November 2016, which was the last date for compliance with the Tribunal's order.
The owners allowed him to carry out some work after 21 November 2016.
He has obtained a cheaper quotation to undertake the work than that obtained by the owners. (Attached to the submissions is a quote from Taj Homes Australia in the sum of $800 plus GST).
[8]
Reply to appeal
In the Reply to Appeal, the owners state, amongst other things, that:
They allowed the builder an additional two weeks after 21 November 2016 to complete the work order, but the builder didn't complete the work.
The builder missed two appointments to come on site during that period and a further appointment during the Tribunal's time frame.
The worker sent by the builder to do the work after 21 November 2016 was neither a professional builder nor a handyman. He had no tools, no car, no licence, no Australian qualifications or recognition and no experience of doing such work. The worker damaged the house and the owners did not allow him to return.
The following morning the builder was supposed to come to the house, but did not do so.
The owners attached to the Reply to Appeal documents supporting their claims that the builder missing appointments and that the builder's work damaged their property.
[9]
Owners' submissions
In written submissions provided in accordance with the Appeal Panel's directions at call over, the owners repeat the assertions made in the Reply to Appeal.
[10]
Issues
The builder did not clearly articulate the grounds of appeal in the Notice of Appeal. While he claims that the Tribunal's decision was not fair and equitable and against the weight of evidence, the real issue for the builder as set out in the Notice of Appeal appears to be his claim that the owners did not allow him access to complete the work.
As noted above, in his written submission the builder stated that the notice of hearing was sent to him by email only. At the hearing, the builder stated that he was not aware of the hearing notice until after the call over, when he retrieved it from the "junk mail" box in his email account. He stated that he wished to pursue this issue as a ground of appeal.
As the builder is self-represented, it is appropriate for us to examine the grounds of appeal generally to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the owners: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69.
We are satisfied that is appropriate to consider the issue of whether the builder was properly notified of the hearing as part of his grounds of appeal, even though the issue was not raised in the Notice of Appeal. We reached this conclusion because the owners had an opportunity to question the builder in relation to this issue during the appeal hearing and to make submissions concerning it.
The issues to be determined therefore are:
1. Has a question of law been raised in the material provided by the builder?
2. If not, has the builder established one of the grounds for leave to appeal set out in cl 12 Schedule 4?
3. If so, should leave to appeal be granted?
[11]
Has a question of law been raised in the material provided by the builder?
The builder claims that the notice of hearing for the hearing on 8 February 2017 was sent to his email address and not to his postal address. As noted above, at the hearing of the appeal, the builder claimed that the emailed notice was diverted to his junk mail box and that he was not aware of this until after the appeal was listed for call over. The Appeal Panel allowed him to give some oral evidence about this (albeit unsworn) and also allowed the owners to put some questions to him about that evidence.
Records held in the Tribunal's case management system confirm that the only manner in which the builder was notified of the hearing on 8 February 2017 was by a notice being sent email. A notice of hearing was not sent to the street address provided by the owners in their renewal application.
At the hearing of the appeal, the owners disputed the builder's claim that the emailed notice of hearing was diverted to his junk mail box. In relation to this, they pointed out that the claim about the hearing notice was not raised in the Notice of Appeal and that the builder did not say, in his Notice of Appeal, that he had not received notice of the hearing. They also pointed to instances of what they considered to be the builder's general unreliability and lack of honesty.
We have some concerns about the reliability of the builder's claim that he was not aware of the emailed notice of hearing until after the call over. In our view, if a party had not received a notice of hearing and was unaware that a hearing had taken place, this is likely to feature prominently in a Notice of Appeal. The builder's failure to raise the notification issue until after the Notice of Appeal was lodged lends some support to the owners' assertion that the builder is not being truthful about this issue.
It is also notable that the builder explained at the appeal hearing that he made the claim concerning the notice of hearing being provided by email when a lawyer friend told him that it was not permissible for a tribunal to notify parties of a hearing by email. He did not say, even in the written submissions where he raised this issue, that he was not notified of the hearing at all. This claim did not emerge until the builder was asked at the appeal hearing why he had not attended the hearing before the Tribunal on 8 February 2017.
However, on the basis of the material before us and the evidence given and submissions made at the hearing of the appeal, we accept on the balance of probabilities that the notice of hearing went to the builder's junk mail box. The builder had attended all previous hearings in the proceedings prior to the renewal proceedings, in circumstances where he had been notified of those hearings by mail. This gives some credibility to his claim that he did not attend the hearing in the renewal proceedings because he did not know about it. We therefore accept that the builder was not actually aware of the hearing on 8 February because he had not seen the emailed notice of hearing.
In the Consumer and Commercial Division of the Tribunal, the Registry serves notices of hearing.
Clause 13(2) of the Civil and Tribunal Rules 2014 (the Rules) sets out the manner in which notices and documents may be served. It relevantly provides that a notice or document may be served on a person or body:
(a) by means of personal service, or
(b) by posting a copy of the notice or document, addressed to the person or body:
(i) to the person's or body's address for service, or
(ii) if the person or body does not have an address for service, to the person's or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document), or
(c) by leaving a copy of the notice or document, addressed to the person or body:
(i) at the person's or body's address for service, or
(ii) if the person does not have an address for service, at the person's or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document), or
…..
….. or
(g) in the case of a person or body that has consented to electronic service by means of an email address or mobile phone number specified by the person or body-by transmitting the notice or document in an electronic format, addressed to the person or body, to that address or number, or
…… or
(i) in such other manner as the Tribunal or a registrar may direct in a particular case.
In this case, the builder was not served in accordance with cl 13(a), cl 13(b) or cl 13(c). Although the owners provided the builder's business or residential address in the application, the notice of hearing was not sent to that address. In addition, there is no evidence that the builder consented to electronic service of the notice of hearing in the proceedings by means of an email address. We therefore find that service of the notice of hearing was not effected in accordance cl 13(2)(g) of the Rules. Furthermore, there is no evidence that any direction under clause 13(2)(i) was made by either the Tribunal or a registrar. We conclude that the builder was not served with a notice of hearing in accordance with cl 13(2).
The Tribunal's procedure in hearing and determining applications is dealt with in s 38 of the NCAT Act. Section 38(5) requires the Tribunal to take such measures as are reasonably practicable "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".
We conclude that the failure to serve the builder with a notice of the hearing in accordance with cl 13 of the Rules, in circumstances where the builder was not in fact aware of the hearing, means that the builder was not given a reasonable opportunity to be heard in the proceedings.
We conclude from this that the builder was not afforded procedural fairness in that the hearing rule was breached: The hearing rule requires a decision-maker to inform a person of the case against them and provide them with an opportunity to be heard.
Whether there was a denial of procedural fairness is a question of law: Italiano v Carbone [2005] NSWCA 177.
However, not every departure from the requirements of procedural fairness will entitle the aggrieved party to a new hearing. For example, if all that happened at a hearing was that the aggrieved party was denied the opportunity to make submissions on a question of law, in circumstances where there was clearly no merit to the submissions the party would have made, it would be futile to order a new hearing: Stead v State Government Insurance Commission (1986) 161 CLR 141 at [10].
In this case, it appears that the essence of the builder's case as it would have been put had he been present at the hearing, is that:
He undertook some of the work that the Tribunal ordered him to do on 24 October 2016;
The owners denied him the opportunity to complete the work; and
The cost of rectification claimed by the owners and ordered by the Tribunal is excessive.
We make no comment on the merits of the builder's case, other than that on the builder's own evidence it appears that he made no effort to comply with the Tribunal's orders until Saturday 19 November 2016, only two days prior to the compliance date, in circumstances where consent orders had been made on 24 October 2016, almost four weeks previously. Further, the builder's own evidence indicates that the owners permitted him to undertake rectification work after 21 November 2016, when they were under no obligation to do so.
However, given that the denial of procedural fairness to the builder affected his entitlement to provide evidence on factual issues such as the amount of work that remained to be completed and the reasonable cost to complete that work, we cannot conclude that the failure to notify the builder of the hearing in accordance with cl 13(2) of the Rules made no difference to the outcome of the case. Had the builder been notified of the hearing, he would have had an opportunity to provide evidence to the Tribunal in relation to factual issues in dispute. Whether that evidence would have made any difference to the outcome is not a matter we can determine on the material before us.
[12]
Conclusion
We conclude that the denial of procedural fairness is such that the Tribunal's decision should be set aside and the matter remitted to the Tribunal for re-hearing. In these circumstances, it is not necessary for us to make findings in respect of the builder's other grounds of appeal. We have made orders as follows:
1. The appeal is allowed.
2. The order made by the Tribunal on 8 February 2017 is set aside.
3. The matter is remitted to the Tribunal for rehearing.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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: 17 May 2017