Cumming v Deadman

NCAT Appeal Panel|2022-02-08

REASONS FOR DECISION

This is an appeal from the Tribunal's decision to amend orders under what is commonly known as "the slip rule" set out in section 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"). The Tribunal had amended the original orders after receiving a request to do so from the respondent but without the appellants having been notified of that request and without being given the opportunity to be heard on the application.
For the reasons that follow the appeal must be upheld because procedural unfairness was visited upon the appellants and, had they been given proper notice and the opportunity to make submissions, and possibly to have led evidence, there is a possibility that the original orders may not have been amended at all, or not amended in the same form as they were.

Denial of Procedural Fairness

For the reasons which immediately follow, the appellants rightly complained that they were denied procedural fairness in the Tribunal's decision to amend its orders.
It is a basal right of parties to litigation (specific statutory exceptions aside) that they receive all of their opponent's evidence, all of their opponent's submissions, copies of all communications between their opponent and the court or tribunal hearing their case including notice of any application the opposing party is making.
It is not in doubt that the Tribunal is obliged to afford the parties before it procedural fairness - Makowska v St George Community Housing Ltd [2021] NSWCATAP 198 ("Makowska") at [54]. An appeal from this decision was dismissed - Makowska v St George Community Housing Ltd [2022] NSWCA 5.
Part of procedural fairness concerns notice and the opportunity to be heard.
As is said in Halsbury's Laws of Australia, online edition, at [10-12760] (footnotes omitted): "Notice that a decision will be made that may adversely affect an individual's interests is a minimum requirement of procedural fairness. On a proper construction of a statute empowering an administrator to make a decision affecting a person's interest, procedural fairness may require the administrator to notify the person of his or her right to make representations in opposition to the proposed exercise of power."
The NCAT Act also provides that, whilst the Tribunal is not bound by the rules of evidence, it may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (natural justice being a synonym for procedural fairness in this context)- see s 38(2) of the NCAT Act.
The NCAT Act also says that the Tribunal is 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 - s 38(5)(b) of the NCAT Act.
In Makowska the Appeal Panel noted at [57]: "In Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, the Full Federal Court, comprising Northrop, Miles and French JJ said at 590-591: 'It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.' (Emphasis original)
By proceeding to amend the orders without notice being given to the appellants of the respondent's application to vary the orders, and by failing to give the appellants an opportunity to be heard on that application, the Tribunal denied the appellants procedural fairness.

Practical Injustice

The usual order where procedural fairness has occurred is for a new hearing. That order will not be made if we were of the opinion that a properly conducted application (by the respondent to vary the terms of the original orders) could not have produced a different result - Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54.
Put another way, if there was a non-fanciful possibility that there would have been a different outcome, then a new hearing of the application to amend the original orders will be ordered. It is possible that such a hearing could be conducted on the papers i.e. without an oral hearing, but we will leave that matter to the Tribunal to decide.
The respondent provided us with extracts of a transcript of the original hearing which, he submitted, demonstrated that the appellants had agreed, during the hearing, to the subject panels being installed for the whole length of the fence.
There is some force in the respondent's submissions.
During the hearing the following exchange took place: "1h 15 Member Nightingale In your own time Mr Cumming, that's the evidence from Mr Deadman and just to confirm that we are discussing uhm, the front panels from Ocean Parade to the front of the detached garage of Mr Deadman's as to what should be a suitable dividing fence And again, I'm happy to hear from you (Mr Cumming) in relation to other issues that we've just discussed about the costs, preferred contractor, timing and that last issue we spoke about about the 50 x 200mm panel embedded into the ground and where the palings should be sitting. If you can give me evidence in regard to that. Mr Cumming OK. We'll deal with the last thing first because it's the most irrelevant. The bottom paling which he's talking about is exactly what I have at the rear of my premises now, with Darren Turvey's place, so. It's a pretty standard process these days. Most fencers do it. It makes no difference to the overall height because the overall height is still determined by the legislation, which is a maximum height. And in any orders, obviously that's got to be clearly there." (Emphasis original)
There was also this exchange: "Mr Deadman Ah, one point perhaps of clarification. We had spoken about and Ric, ah Mr Cumming sorry, agreed that the 50 x 200mm treated pine board is common practice these days, that's what they do etc, but we did that as part of the discussion about 'panels' and which side they would be on. I just wanted to make sure that everybody is clear. Mr Cumming, if you would like to clarify for Member Nightingale, that it's the 'rails' which are of issue and might be worth stating that clearly so that Member Nightingale is of the same view, on which side you want the rails to be. Mr Cumming The rails, as I understand you've agreed, will be on your side and that panel will be sitting under the palings on my side. Obviously you can have them on your side if you wish, but yeh. Mr Deadman I just wanted to make sure that we're all clear that the rails are on your side, sorry, the rails are on my side and that the palings sit on top of those boards, yes. That's just for clarity, that's all. Mr Cumming That's the standard with construction. That's normal, yes." (Emphasis original)
As we read those extracts the question of the panels (or plinths) were not of great concern. However, in our opinion, those extracts do not establish a clear, unequivocal agreement by Mr Cumming that panels could be installed for the whole length of the fence. The first exchange, for example, suggests that, at least at that time, the discussion was limited to part of the fence (from the street to the south to the front of the detached garage on Mr Deadman's property).
In his submissions Mr Cumming said that a relevant part of the sound recording was at 1.11.40 - 1.14.20. He submitted that although he agreed that the use of plinths was standard fencing practice, he did not endorse the size of the plinths and referred to the sound recording at 1.15.50 - 1.16.25.
The difficulty with both parties' submissions is that no party provided us with a copy of the sound recording or a full transcript. It would be unwise for us to act on the appellants' submissions when they did not provide us with any sound recording or a transcript of the parts relied on (as they were directed to do) and unwise of us to act only on the extracts provided by the respondent given they did not include those parts identified by the appellants and the possibility that what we have read may have a different meaning when read in the context of other statements made at the hearing. Of course, a full transcript may add context and establish the respondent's contention that there was the agreement alleged.
Be that as it may, the fact is that we do not have a full transcript or a copy of the sound recording. In those circumstances we must be very cautious in coming to a view that no different result could have been achieved had the appellants been given the opportunity to be heard on the application to vary the original orders.
In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Gaudron and Gummow JJ, at [81], quoted with apparent approval what was said by Megarry J in John v Rees [1970] Ch 345 at 402: "[a]s everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change".
In addition to the uncertainty about who said what at the hearing, we do have some evidence from the appellants which had not been tendered to the Tribunal at the original hearing. This is allowable to demonstrate that there has a been a practical injustice brought about by the procedural unfairness - see Shi v ABI-K Pty Ltd [2014] NSWCA 293 per Basten JA, with whom Barrett and Ward JJA agreed, at [50]-[53].
That evidence, principally a contour diagram, on its face demonstrates a fall in the ground level from the appellants' property directly towards the proposed fence and the respondent's property in the area roughly north of the respective dwellings. It is suggested that if the fence were built in that area as proposed in the amended orders, the fence would interfere with any stormwater run-off in a manner detrimental to the appellants' land.
The appellants submitted the same applied to the area roughly south of the dwellings, but the contour diagram suggests the fall is more or less directly towards the properties' respective rear boundaries and we are somewhat doubtful (although we make no finding in that regard) that the fence (per the amended orders) would materially interfere with any stormwater run-off at the section of the fence.
To be clear, we make no findings on any of those issues. All that the appellants need to demonstrate on this appeal is the possibility of a different result had they been given the opportunity to be heard. In our opinion there was a possibility of a different result, a conclusion the respondent properly accepted in his submissions. The agreement alleged to have been made may not have been made, and the extension of the plinths from a 20 m section to the whole length of the fence may be adjudged to be so detrimental to the appellants' land that the Tribunal may not have amended the orders as it did.

Conclusion

Section 63 is confined to obvious errors in the text of the orders. Such may consist of obvious clerical or typographical errors in the text of the orders, or perhaps be an error arising from an accidental slip or omission.
The Tribunal did not give reasons for deciding to amend the orders, nor was it required to. We simply make the point that neither we nor the parties know the basis for the Tribunal's amendment of the orders.
What is clear however is that by proceeding to amend its orders without notice being given to the appellants of the respondent's application for that variation, and by failing to give the appellants an opportunity to be heard on that application, the Tribunal denied the appellants procedural fairness.
The result is that the Tribunal's amended orders of 18 October 2021 should be set aside (leaving the original orders in place) and the respondent's application to amend the original orders (as contained in his email to the Tribunal of 12 October 2021) to be remitted to the Tribunal to be determined according to law. In this case, most particularly, that involves providing an opportunity to the appellants to be heard on the respondent's application to vary the orders.
We shall leave it to the Tribunal to make such directions as it sees fit to determine that application, including the question whether the parties should or should not be allowed to tender further evidence on the application.

Orders

We make the following orders: 1. Appeal allowed. 2. Set aside the Tribunal's orders of 18 October 2021, and in lieu thereof re-instate the Tribunal's orders of 28 September 2021. 3. Remit the respondent's application of 12 October 2021 to vary the orders of 28 September 2021 to the Tribunal as originally constituted to be determined according to law. 4. The stay granted by the Appeal Panel on 25 November 2021 is extended pending further order or finalisation of the respondent's application of 12 October 2021, whichever first occurs.

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 February 2022

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