David Harris & Deidre Harris t/as Wellington Concrete v Mayne

Judgment 1The Plaintiffs seek prerogative relief on the basis that the Consumer Trader and Tenancy Tribunal determined a matter, in which they were Respondents, in their absence.

Background 2The Plaintiffs carry on the business of Wellington Concreting. Mr Harris is a licensed concreter and his partner, Deidre Miller, carries out a number of administrative tasks in respect of the business. 3In about January 2009 the Plaintiffs entered into a contract to construct a concrete stamped driveway at the residence of the Defendants at 10 Horison Place, Dubbo. The work was carried out between March and May 2009 pursuant to a quotation of $14,000, and the Plaintiffs were paid about $18,000 because of some variations to the work. 4Disputes subsequently arose when the Defendants were not happy with the work that had been done. The Defendants lodged an application with the CTTT on 27 October 2010. They claimed an amount of $104,500 to have the work corrected. 5On 8 February 2011 the matter was first listed at the CTTT where directions were made for the filing and service of evidence. 6Subsequently the matter was listed for a telephone directions hearing on 4 April 2011. Because Mr Harris was having difficulty engaging an engineer to attend the property to inspect the work and prepare an expert's report he sought in writing from the CTTT an extension of time to comply with the orders of 8 February 2011. He was informed that further directions could be made at the directions hearing on 4 April 2011. 7At that directions hearing Mr Harris sought and was granted an extension of time to file and serve his evidence in reply. He was given until 18 April 2011. 8On 7 April 2011 the CTTT sent a notice of hearing to the parties fixing the matter for 13 July 2011 at 9.15am in Dubbo. 9Because Mr Harris was still having difficulty obtaining an expert report from an engineer he wrote a letter to the CTTT on 5 July 2011 as follows: TO CTTT TRIBUNAL FILE NO 10/50297 In relation to the claim made by Rick and Yvette Mayne against David Harris Wellington Concreting. I am listed for a hearing on Wednesday 13th July in Dubbo. I have contacted NRMA who I was insured with Claim No 10/10908/N52. They have contacted Brian Bugden from Echelon who has already contacted Rick and Yvette Mayne and is organizing a structural engineer to go around in the next couple of weeks. Could this hearing be adjourned for another month so as to have the results and be able to work out some sort of resolution. 10He did not receive a reply to this letter. 11On 13 July 2011 Mr Harris attended at the Tribunal in Dubbo at 9.15am. The Member presiding at the hearing said to him words to the effect: "Your matter is not listed today. It's on tomorrow, 14 July 2011. Mr Harris replied to this effect: But I received a notice from the Tribunal telling me that it's listed today. I can't come tomorrow, I have work on at the Gulgong Public School that I have to finish before school goes back. Can the hearing be adjourned? Or can it be listed for telephone directions? I can't come in tomorrow. The Member replied: You'll have to put your request in writing. 12Mr Harris then went to the front desk at the Office of Fair Trading, where the Tribunal was sitting, and an officer assisted him to write a request to adjourn the hearing. The request was as follows: URGENT REQUEST MY FILE # HB10-50297 Dave Harris 0408231069 Request phone hearing on 14 July @ 9:15am at Dubbo Fair Trading. Because of urgent work at Gulgong High School need to get work done there before Monday 18 July. Originally thought hearing was on the 13 th July as per CTTT letter I received so arranged work around that date. Please for your consideration. I can be contacted on above phone number. 13The letter was sent by facsimile to the Tamworth Registry of the CTTT by the officer, and a copy of the letter was handed to the Member presiding on 13 July. The fax mark on the letter shows that it was faxed at 9:34am on that day. The letter has 2 "Received" stamps, one at Dubbo and one at Tamworth both dated 13 July. 14Mr Harris did not receive a reply from the CTTT either in writing or by telephone. As will become clear, nor did anyone within the CTTT's organisation ensure that this fax (or, for that matter, Mr Harris's letter of 5 July) was, in a timely manner, brought to the attention of the Member who presided over the hearing. The hearing 15Mr Harris did not attend the hearing on 14 July as he had the prior work commitments that he mentioned both to the Member and in the letter. Nevertheless, the hearing proceeded on 14 July in his absence. 16Subsequently the Plaintiffs received a letter from the Tribunal being a Notice of Order. The Order required the Plaintiffs to pay to the Defendants the sum of $97,905.00 on or before 12 August 2011. 17In the Reasons for Decision attached to the Notice of Order the following appears: i) The Respondent's applications of 5/7/11 for an adjournment and of 14/7/11 (received after the hearing had proceeded for approx 90 minutes) for a phone hearing were declined. The Respondent had ample time prior to the hearing to comply with Directions of 8/2/11 and 4/4/11 and to make suitable arrangements to attend the hearing. No submissions were received from the Respondent pursuant to the Directions. The Tribunal found that any further delay by the Respondent would prejudice the Applicants. 18On 27 July 2011, after the CTTT had been forwarded a letter by the Plaintiffs' solicitor, it sent copies of documents it said had been sent to the Plaintiffs concerning the adjournment of the hearing on 13 July and the appointment of 14 July as the new hearing date. Each of the letters is dated 3 June 2011 and each is addressed to: David Harris Wellington Concrete 6 Gisborne Lane Wellington NSW 2820 19The transcript relevantly records the following matters in relation to the absence of the Plaintiffs from the hearing. At page 2 the following appears: MEMBER: Sorry. These proceedings are recorded. There's a small microphone on the table. Now I have before me Mr and Mrs Mayne, is that correct? MRS MAYNE: Yes. MEMBER: In person. Respondent David Harris, there's no appearance. Now the procedure is normally I get the applicant to give their evidence and then for the respondent to respond to that and for the applicant to call any witnesses, which I note that you have today. However there's no appearance of the respondent, but I still need to be satisfied without - I must hear your side of the story and I must be satisfied of things, damages that have been suffered. So you still have to prove your case. 20At page 44 the Presiding Member and the expert for the Defendants, Mr Cook, were engaged in an exchange when the Member is recorded as saying "Just one moment". It seems clear from what follows a little further on that it was at that point that the Member was first alerted to the fax sent by Mr Harris on the previous day and perhaps (it is not clear, but see paragraph [17] above) the letter of 5 July. The transcript obviously does not record everything that was said but the following parts of the transcript seem to indicate that the Defendants and their expert were shown a copy of the fax. At pages 45 and 46 the following is recorded: MR MAYNE: I should be at work, too, by the way. MR COOK: Yeah, yeah. MRS MAYNE: Yeah, I know, exactly. MEMBER: Thank you. MR COOK: It's good of him to send somebody at 10 to 11, it's ... (not transcribable)... It could've been sent last night or something. MEMBER: One a half hours into the hearing. So you object to this? MRS MAYNE: Yes. He's been given every chance to get organised. Just like us. MR MAYNE: Mate, it's ...(not transcribable) ... MRS MAYNE: We have six kids. We - we have to organise structure, business. MR MAYNE: What's this been going now? Six months. MRS MAYNE: Longer. MR COOK: And he hasn't complied with any directions, either. MRS MAYNE: No. No. Nothing, there's been- MR COOK: Can I possibly have another quick look at that, if you don't mind? MRS MAYNE: There's been nothing. MR MAYNE: Not a phone call, not a bit of piece of paper; he's done nothing. MRS MAYNE: No. He's put it off and put it off. I think he thought we were going to go away. MEMBER: Yes. Yes, no, it's all right. Yes. I gather that you object to it. MRS MAYNE: Yes. MR COOK: I'll give you a couple of those. I was just looking for a send number on it. MEMBER: What? MR COOK: I was looking for a send number to see if it was sent from Gulgong. MEMBER: It doesn't appear to be. MR COOK: It's gone through the Registry. MR MAYNE: He has more lives than a cat, this guy. MR COOK: Who thinks they can tell him what to do. MR MAYNE: What's he doing now? MRS MAYNE: He can see we object to it, but we'll just see. MR MAYNE: We object big time. MRS MAYNE: He only sent it yesterday. MR COOK: No, it's today, isn't it? MRS MAYNE: The 13th, so yesterday, he sent it to me yesterday. MR MAYNE: What? He can just make a phone call and actually completely -just turn things right around. He's supposed to be here today. MRS MAYNE: That's right. MR COOK: Yes. No, that's all right. MEMBER: So I'll just mention for the benefit of the tape that at 10.50 a faxed letter was received from the respondent which states that because of an urgent work at Gulgong High School he needed to get to work there and finish it before Monday the 18th of July. And that he originally thought the matter was on the 13th, but the Tribunal notes that correspondence was forwarded to him informing of the alternate [sic] date . He's seeking a phone hearing for today. That's not possible because the matter has been now going for an hour and a half. There's a strong objection to this by the applicant who points out that there have been previous telephone hearings for directions. Directions have been given and extended at the request of the respondent, but to date there has been no evidence that's been produced in accordance with those directions and it appears as though it may be another attempt to have the matter delayed. The Tribunal is not satisfied that the request for the adjournment or the phone hearing is appropriate, and accordingly, will continue with the hearing as it is today. MRS MAYNE: Yeah. MR COOK: When did you receive notification of the change from the 3rd to the 14th? MRS MAYNE: A month ago. Yes, it was six weeks ago. MEMBER: No, you would've received it 3 June, so it would've been a couple of days after that. MRS MAYNE: Yeah. MEMBER: Yes, that's all right. I just need to do that formal. Now I must apologise for that interruption... (emphasis added) 21It should be noted that Mr Cook was the Defendants' expert witness. What business he had in entering into the debate about the Plaintiffs' non-attendance was not explained. It scarcely appears, in the light of that involvement, that he was an objective witness giving evidence about matters within his expertise rather than being an advocate for those who retained him. 22Finally, in what appears to be the Reasons for his decision the Presiding Member said this (at p 53): The respondent, there was no appearance by the respondent. No submissions were provided by the respondent, despite directions that were made on 8 February and also on 4 April. During one of those hearings the direction date was extended at the request of the respondent to enable him to be able to comply and this has occurred over 3 months ago and there is still no evidence that has been provided by him. A letter dated 5 July was received from the Registry from the respondent requesting an adjournment as he was arranging for a structural engineer. No details of this have been provided to the applicant. A copy of it was provided to the applicant before the commencement of the hearing. The applicant objected to that on the basis that the matter had been set down for hearing and ample time had been given for that evidence to be done. The Tribunal accepts that argument and commenced the hearing in accordance with the matter that had been set down. Almost at the end of the evidence that was given by the applicant, and that's the applicant's evidence in relation to this matter, that was one and a half hours into the hearing. A request was received by the Member from the respondent seeking a phone interview due to work commitments. Now both the requests by the respondent to the adjournment or the phone hearing were strongly objected to by the applicant. The respondent had been given plenty of time to arrange attendance and to produce evidence, including an extension of time at this request on 4 April. It appears to be a delaying tactic. The Tribunal, after giving consideration to that submission, does not accept the respondent's request for an adjournment or a phone hearing and the reasons stated as being sufficient to justify those matters. Accordingly, the matter is to continue to proceed. It is noted that the applicant's evidence was almost completed when the request for the phone hearing was sought and justice in the case requires the matter to continue today.