Davis v CTTT

Supreme Court of NSW|2008-05-12

Background 13 On 8 November 2004, the McFaddens commenced proceedings in the CTTT against Mr Davis, a builder, for defective and incomplete work carried out by him to the McFaddens' family home. On 24 June 2005, Mr Davis filed a cross claim against the McFaddens. Between 20 July 2005 and 25 October 2007, there were a number of directions hearings and orders made by the Tribunal. 14 On 8 November 2006, this matter was listed for hearing before Tribunal Member Briggs. On that day, Mr Davis was ready to proceed and was not legally represented. Mr Davis deposed that during the course of the proceedings, his then solicitors, Adams Partners, prepared, filed and served affidavits, expert's reports and other evidence on his behalf. Mr Iscowicz, a building expert was retained on his behalf and attended the Tribunal for conclave. Mr Iscowicz's reports were given to Dr Briggs at the conclave. The McFaddens were represented by counsel and a solicitor. 15 At that hearing, the Tribunal Member pointed out to the McFaddens that firstly, there was a dispute as to whether the builder was Mr Davis or a company; and secondly, that they had only made out their claim to the amount of $7,000. The McFaddens sought an adjournment. The Tribunal Member in the exercise of his discretion granted the adjournment. 16 On 8 November 2006, the following procedural directions were made: "1. Parties are to advise available dated for 2 day hearing in February/March 2007 by 16 November 2006. 2. Parties to access CTTT website or contact registry and obtain copies of " Chairperson's directions for building cases over $25,000.00 " and " Chairperson's direction to expert witnesses ". 3. Parties are to comply strictly with the timetable and direction unless leave is given to amend the timetable and/or directions. 4. Homeowner is to allow access for inspection to the builder and his agents 9.am to 5.pm, Monday to Friday or 48 hours notice on not more than 3 occasions. 5. Parties to include in their material submissions and submissions in reply as to the identity or the parties and in particular as to the identity or assorted identity of the builder. 6. The CTTT notes that agreement has been shown in respect to some items in Exhibit 3. 7. The applicant and cross applicant shall no later than 7 December 2006 provide to the respondent and the Tribunal copies of all documents on which the applicant intends to rely at the hearing. 8. The respondent and cross-respondent shall not later than 1 February 2007 provide to the applicant, any other respondents, and the Tribunal copies of all documents on which each respondent/cross-respondent intends to rely at the hearing. 9. Homeowner to reduce material to Scott Schedule format by 9 February 2007. 10. Leave is granted to all parties to be legally represented. The parties' representatives shall advise the Registrar and all other parties in writing by no later than 4.00pm on the weekday following these orders of their name, address for service, telephone and facsimile numbers. 12. The Tribunal reserves costs of the day."

[Tribunal's emphasis] 17 A the conclusion of the notice of the orders made which were sent to the parties is a box in which is written:

Parties may not present any evidence in chief, whether spoken or written, at the hearing of their case unless that evidence has already been provided to the Tribunal and other party/ies in accordance with Tribunal directions, unless the Tribunal grants leave to do so in accordance with the Chairperson's Directions. 18 Mr Davis says that in February 2007 (the time stipulated for compliance as per previous directions), the McFaddens completely repleaded their case and prepared a Scotts Schedule that was entirely different to those prepared before. Mr Davis also was given until February 2007 to provide copies of all documents on which he intended to rely upon at the hearing. He did not provide copies of any further documents to the McFaddens or the Tribunal. The Tribunal fixed the dates for hearing in this matter on 25, 26 and 27 July 2007. 19 In 8 May 2007, the McFaddens filed a notice of motion seeking: "1. Pursuant to section 30 of the Consumer Trader and Tenancy Tribunal Act 2001, judgment be given and entered in favour of the Applicants in terms of paragraph 26 of the Further Amended Application and Points of Points of Claim filed on 28 February 2007. 2. The Respondent Cross Applicants pay the Applicants' costs of the proceedings." 20 On 27 June 2007, Tribunal Member Briggs heard the motion and decided that the proposed orders sought by the McFaddens would be punitive rather than remedial and pointed out that Mr Davis had failed to adhere to what was obviously a strict timetable, intended to assist the parties in the efficient management of this litigation. The Tribunal Member made orders firstly, that the matters proceed to hearing on 25, 26 and 27 July 2007 as previously directed; secondly, leave was refused for the respondent/cross applicants to rely upon any further evidence having regard to their failure to comply with the November directions or to seek leave to vary those directions; and thirdly, no order as to costs. 21 The matter was heard on 25 and 26 July 2007 by Senior Tribunal Member Durie (which I will refer to in more detail shortly). On 29 August 2007 Senior Tribunal Member Durie delivered his written reasons for decision. The Tribunal Member made an order that the McFaddens file short minutes of order giving effect to his reasons on or before 10 September 2007. Judgment was ultimately entered that Mr Davis pay the McFaddens $161,109. The Tribunal Member dismissed any claim by or against Options in Building (Australia) Pty Limited and dismissed Mr Davis's cross claim.

Procedural fairness in the Tribunal 22 Section 28 of the Consumer Trader and Tenancy Tribunal Act reads: "28 Procedure of Tribunal generally

(1) The Tribunal may, subject to this Act, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand: (a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings.

(5) The Tribunal … (g) may dismiss any proceedings if the applicant fails to attend a hearing, …" 23 Section 35 reads: "Opportunity for parties to present case

The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity:

(a) to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise), and

(b) to make submissions in relation to the issues in the proceedings." 24 Section 35 provides that the CTTT "must ensure" that each party is given "a reasonable opportunity" to present its case. There are provisions which allow the CTTT 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 - see Italiano v Carbone & Ors [2005] NSWCA 177 at [105] and [106]. 25 Mr Davis submitted that at the hearing that commenced on 25 July 2007, he was denied procedural fairness because firstly, he was not permitted to rely upon the evidence of Mr Iscowicz; secondly, he was denied the opportunity to consider the McFaddens' expert evidence; thirdly, the Tribunal declined to permit him to rely upon further evidence; and fourthly, the Tribunal Member failed to read or consider the earlier ruling made by Dr Briggs concerning whether Mr Davis should be permitted to rely on further evidence prior to ruling that further evidence would not be received. The McFaddens submitted that Mr Davis was afforded procedural fairness.

The hearing in the CTTT on 25 and 26 July 2007 26 Due to financial circumstances, Mr Davis could no longer afford legal representation and appeared unrepresented at the hearing before the Tribunal Member. He also ceased to retain Mr Iscowicz an expert. Mr Davis had a McKenzie friend present at the hearing, namely Mr Foletta, a law graduate and then a volunteer with the Youth and Enterprise Legal Centre. Mr Foletta's role was to assist Mr Davis with ordering and retrieving documentation at the hearing. The McFaddens were legally represented by solicitor and counsel at the hearing. 27 Although Tribunal Member Phillips had heard evidence at an earlier date and exhibits had been tendered, Tribunal Member Phillips's term of appointment had expired so the matter could not be relisted before him (B 90.8-10). Hence, the Tribunal Member Durie at the hearing indicated the reports that had been tendered on the previous occasions, before Tribunal Member Phillips, needed to be re-tendered before him (B 98.9-11). 28 Mr Davis indicated that he would like to present a sworn affidavit before the end of the day and stated that the reason that he wanted to have it admitted was because he had not been able to respond to the report dated 7 December 2006 (the third Brincat report) because he had not seen it (Bundle (B) 96.5-13). 29 On 8 December 2006, the McFaddens' solicitor forwarded an expert's report of Mr Brincat together with a covering letter to Mr Davis at his mother's address by courier. Mr Davis acknowledged that his mother signed for it but denies receiving the report until the first day of the hearing. However, on 19 December 2006, Mr Adams the solicitor who had been acting for Mr Davis wrote to the Tribunal. In that letter Mr Adams acknowledged that he (the solicitor) had received the letter dated 8 December 2006 which attached, inter alia, the building report by Edward Brincat dated 7 September 2006. It is unlikely, in my view, that Mr Davis had not seen this report prior to the hearing in circumstances where his mother had received a copy addressed to him at a time when had been residing with her and his solicitor was also in possession of a copy. 30 Counsel for the McFaddens handed a copy to Tribunal Member Durie at the hearing (B 92). So far as the anticipated affidavit was concerned, the Tribunal Member stated that Mr Davis was trying to get it into evidence contrary to the directions of Dr Briggs (B 96.3-4). The Tribunal Member then stated that if Dr Briggs said "no further evidence" and that means "no further evidence in my view". (B 97.6-7). 31 In the Tribunal Member's written reasons dated 29 August 2007 he elaborated at (b): "The applications had been case managed and the parties had filed and served documents and reports. Mr Davis did not comply with directions. An order was made by Member Briggs that he be barred from relying upon any document not then filed, or from calling evidence which should have been included in a filed and served document. At the hearing, Mr Davis sought to rely upon such evidence. I considered that the order of Dr Briggs should be followed, and barred the presentation of the additional evidence." 32 At the hearing, Mr Davis relied on his affidavit dated 19 April 2005. This affidavit, together with annexures, occupies one black folder. At the earlier experts' conclave held on 26 June 2007, the Tribunal received a Scott Schedule which was prepared by Mr Brincat and was subject to agreements between Mr Brincat and Mr Iscowicz. This formed part of the evidence before the Tribunal Member (Ex 5) and was accepted by the Tribunal Member. Aside from this agreement in the Scott Schedule as to the sum of about $20,000, there does not appear to be any written expert's reports prepared by Mr Iscowicz in existence. There is only one exchange in relation to Mr Iscowicz contained in the transcript where the Tribunal Member asked Mr Davis whether Mr Iscowicz was going to be called, Mr Davis replied "I don't know we need his service" or alternatively, "I don't retain those services". The McFaddens submitted that there was no written report prepared by Mr Iscowicz and from my perusal of the evidence and transcript this is correct. 33 Both Mr McFadden and Mr Davis gave oral evidence before the Tribunal Member and were cross examined. Mr Davis was able to cross examine the McFaddens' expert Mr Brincat extensively (over 80 pages of transcript). 34 Towards the end of the hearing in the Tribunal the sworn affidavit that Mr Davis sought unsuccessfully to rely upon at the beginning of the hearing was accepted by the Tribunal Member and treated as being submissions. 35 In the end, the Tribunal Member preferred the evidence of Mr McFadden and his expert to that of Mr Davis. The Tribunal Member stated (at [k]-[n]): "k. When Mr Davis terminated the retainer of his solicitor, he also ceased to retain Mr Iscowicz, an expert who had provided reports. Those reports were not tendered, and the only independent expert evidence before me is that of Mr Brincat, who had been retained by the Owners. Mr Brincat appears from his qualifications to be well able to provide expert evidence in home building claims, and I note that his evidence was given on the basis of his knowledge of, and in compliance with, the Chairperson's evidence concerning expert witness.

l. Mr McFadden and Mr Davis both gave oral evidence. Mr McFadden was an impressive witness. I am always reluctant to rely upon demeanour as a major factor in considering reliability of evidence, but it must be said that Mr McFadden gave his evidence in a quiet and calm manner, and did not exaggerate the complaints being made. His evidence was consistent with the evidence of Mr Brincat and with the documentary evidence before the Tribunal.

m. Mr Davis's evidence is not as reliable. I have already referred to the inconsistency between his evidence on the formation of the company as an insurance requirement and the issue of a certificate nominating him personally as the builder. There were other instances of inconsistency in his evidence, and I shall refer to them in the discussion of individual items.

n. On the occasions when it is necessary to resolve disputes between Mr McFadden and Mr Brincat on the one side, and Mr Davis on the other, I do not accept the evidence of Mr Davis." 36 It is my view, that Mr Davis was given a reasonable opportunity to call and give evidence and make submissions at the hearing that took place on 26 and 27 July 2007. So far as the decision not to allow further evidence is concerned, Counsel for the McFaddens referred to Dennis v Australian Boardcasting Corporation [2008] NSWCA 37 at [28]-[29] where the Court of Appeal stated: "28 The respondent invoked the authority of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 in support of its ability to amend, even for the fifth time. Case management practices in all Australian courts have changed significantly in the decade since that judgment. Although it remains binding authority with respect to the applicable common law principles, the circumstances of the case were significantly different from those in the present case and do not dictate its outcome. In any event, such principles can be, and have been, modified by statute both directly and via the statutory authority for Rules of Court. 29 In this State J L Holdings must now be understood as operating subject to the statutory duty imposed upon the courts by s 56(2) of the Civil Procedure Act 2005, which requires the Court in mandatory terms - "must seek" - to give effect to the overriding purpose - to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" - when exercising any power under the Act or Rules. That duty constitutes a significant qualification of the power to grant leave to amend a pleading under s 64 of the Civil Procedure Act ." 37 It was open to the Tribunal Member not permit further evidence to be relied upon by either party. 38 In any event, at the hearing on 26 and 27 July 2007, no further evidence was excluded. Mr Davis did not have a written expert's report, nor the expert present to give evidence. His latter affidavit which covered much of the same grounds as his earlier affidavit was taken into account as it was treated as being submissions. 39 It is my view that in these circumstances Mr Davis was afforded procedural fairness at the hearing on 26 and 27 July 2007. The decision of Senior Tribunal Member Durie made on 29 August 2007 is affirmed. The summons filed 27 September 2007 is dismissed. 40 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the second and third defendants' costs as agreed or assessed.

(1) The decision of Senior Tribunal Member Durie made on 29 August 2007 is affirmed.

(2) The summons filed 27 September 2007 is dismissed.

(3) The plaintiff is to pay the second and third defendants' costs as agreed or assessed. **********

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.

Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456 Dennis v Australian Boardcasting Corporation [2008] NSWCA 37 CASES CITED : Italiano v Carbone [2005] NSWCA 177 Kalokerinos & Anor v HIA Insurance Services Pty Ltd & Anor [2004] NSWCA 312 Maconachie v Kullenburg & ors [2005] NSWCA 294

LOWER COURT MEDIUM NEUTRAL CITATION : McFadden v Davis (Home Building) [2007] NSWCTTT 514

(b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness." 5 Prerogative relief under s 65(3) of the Consumer Trader and Tenancy Tribunal Act is discretionary and may be refused where there has been delay on the part of the applicant or it can be said that the applicant has waived or acquiesced in the validity of the decision (Italiano v Carbone [2005] NSWCA 177 per Basten JA at [117]; Maconachie v Kullenburg & Ors [2005] NSWCA 294 per McColl JA (Giles JA agreeing) at [59]). 6 Section 67 of the Consumer Trader and Tenancy Tribunal Act allows for an appeal to be made to this court on a question with respect to a matter of law. A reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal (s 67(8)). The onus lies on the plaintiff to demonstrate that there has been an error with respect to a matter of law. 7 Section 67(3) of the Consumer Trader and Tenancy Tribunal Act provides that, after deciding the question of the subject of an appeal, the court may affirm the decision of the Tribunal, or it may make an order in relation to the proceedings in which the question arose as it, in its opinion, should have been made by the Tribunal, or it may remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal. 8 The width of s 67 was discussed in Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456. Hodgson JA (with whom Beazley and Tobias JJA agreed) stated succinctly [at para 33]: "… in my opinion, to establish an error of law by the Senior Member, it was necessary to show that he applied a wrong principle of law. That could be shown either from what he said, or because the ultimate result, associated with the facts that he expressly or impliedly found, indicates that he must have applied the wrong principle of law". 9 See also Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312 at paragraphs [39], [40], [41], [47] and [59].

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