Gallo v Duflou [2014] NSWCATAP 115 | Case summary

Background 1This is an appeal from orders made by the Tribunal in the Consumer and Commercial Division on 8 July 2014 requiring the appellant to pay the respondent a sum of $17,864. 2The respondent engaged the appellant to carry out work on the respondent's pool. Following a dispute as to the quality of that work, the parties entered into consent orders requiring the appellant to carry out rectification work on the appellant's pool. The appellant engaged Gemtex Pty Ltd to do this rectification work on his behalf. 3After Gemtex Pty Ltd had completed the rectification work, the respondent had the pool emptied for about ten days so that an unrelated third party could carry out building work in areas surrounding the pool. As the decision below relates, the respondent then commenced fresh proceedings concerning the quality of the rectification work. 4The respondent claimed that the rectification work was not done in a proper and workmanlike manner and resulted in the separating of the pool render. The appellant's case was that the damage to the pool was caused by the respondent emptying the pool, which the respondent should not have done for such a long period, particularly in summer. 5At the hearing, below the appellant and the respondent were both unrepresented. Both gave evidence. The respondent (ie the applicant below) tendered an expert report, which he had previously filed and served, prepared by a firm called WjH and a letter from a pool company called XQuisite in support of his case that the damage to the pool was caused by the appellant's poor workmanship. The material sent to the parties prior to the hearing instructed them that their witnesses must attend the hearing. However, the respondent did not produce the author of the report or the author of the letter for cross examination. 6The appellant (ie the respondent below) also produced a witness, Mr Carter, an employee of Gemtex Pty Ltd, who gave evidence indicating that the damage was caused by the respondent emptying the pool and not by any defects of workmanship. 7The respondent cross examined Mr Carter. During the cross examination, the respondent asked Mr Carter if he had read the WjH expert report, to which Mr Carter answered in the affirmative. The respondent then asked Mr Carter which aspects of the report he disagreed with. In his response, Mr Carter said at the outset that the damage was caused by expansion (consistently with Mr Carter's view that the heat of the sun had caused the damage when the pool was empty). He then said: "I haven't had an opportunity to speak to the gentleman that wrote the report" or to explain to him his views about the cause of the damage. He also said: "There are other opinions to this person's opinion as to what might cause that [the damage] and given an opportunity to speak to that person he might have viewed the thing slightly differently." He added: "I'd be happy to debate the point with the man at any time you wish". 8The appellant did not ask to question the author of the WjH expert report or the author of the letter from XQuisite. The Tribunal did not comment on the absence of those witnesses, nor did it ask the respondent why they were not present or ask the appellant whether he wanted to cross examine them. 9The Tribunal preferred the respondent's evidence over that of Mr Carter and the appellant. It commented: (1)the weight of Mr Carter's evidence is lessened by the fact that he is employed by Gemtex, who carried out the work in dispute (2)the weight of Mr Carter's evidence is further weakened by the fact that he has not personally attended the site to inspect the current problem but based his views on what he was told by his son(who did not give evidence) and photographs (3)the WjH report is persuasive. Although the author did not attend so that his opinion could not be tested, weight must be given to the author's qualifications and experience; the authors understanding of his obligations as an expert witness and his methodology (4)the applicants case is also supported by a signed letter from XQuisite. Although I acknowledge that once again this evidence could not be tested and that that company has tendered to rectify the work, it does add weight to the WjH report

CONSIDERATION 16The appellant's first, second, fifth and sixth grounds of appeal do not raise questions of law and the appellant therefore requires leave to appeal on those grounds (Act, s 80(2)(b)). The Appeal Panel may only grant leave to appeal if satisfied of the matters set out in cl 12(1) of Sch 4 to the Act. The third and fourth grounds raise questions of law. 17In his Notice of Appeal, the appellant contended that the diminished weight attributed to Mr Carter's evidence and the fact that the appellant had obtained evidence to indicate that pools should not be emptied for long periods of time meant that the Tribunal's decision was not fair and equitable. He also said that the decision was against the weight of evidence because more evidence could have been given at the hearing, and because the respondent's evidence in fact favoured his case. Finally he said, in response to the question on the appeal form asking whether evidence was now available which was not available at the hearing, that there was overwhelming evidence available on the internet giving advice not to empty pools. 18The Appeal Panel is not satisfied that the appellant may have suffered a substantial miscarriage of justice due to any of the factors in cl 12(1) of Sch 4 to the Act. The matters about which he complains in grounds 1, 2, 4 and 6 are concerned with the weight the Tribunal gave to evidence and/or concern evidence which was not before the Tribunal but was available at the time of the hearing. The Appeal Panel therefore does not grant the appellant leave to appeal on those grounds. 19The appellant's third and fourth grounds identify a question of law, namely an alleged denial of procedural fairness. Accordingly, the appellant may appeal as of right on those grounds (Act, s 80(2)(b)). 20The main issue is whether the Tribunal denied the appellant procedural fairness by failing to ask the appellant whether he wished to cross examine the authors of the expert report and letter, and by failing to adjourn the hearing to allow him the opportunity to do so. 21The authorities are clear that the failure to allow a party an opportunity to cross examine may, in some situations, constitute a denial of procedural fairness. In Wakim v Mathiew Pty Ltd [2002] NSWSC 405 at [30], after noting that the requirements of natural justice may not confer on a party the right to cross-examine in a given case, O'Keefe J said: There may, however, be cases in which the denial of an oral hearing or of the right to cross-examine may constitute a denial of natural justice. In determining whether or not that is so in a given case, it is necessary to consider the whole of the circumstances including the legislation, the general practice as understood by the parties and any acceptance by them as to the way in which the proceedings are to be conducted... 22In Williams v NSW Land and Housing Corporation [2012] NSWSC 1022, Schmidt J considered an application to quash a decision of the former Consumer Trader and Tenancy Tribunal ("CTTT"), the jurisdiction of which is now exercised by the Consumer and Commercial Division of this Tribunal, on the grounds that the plaintiff was denied procedural fairness. Part of the plaintiff's case related to the CTTT's alleged failure to ensure that she had an adequate opportunity to cross examine the defendants' witnesses. The plaintiff, Ms Williams, had been unrepresented in the CTTT. 23Schmidt J reviewed the transcript of the hearing and said (at [8]): [8] It is apparent from the transcript of the proceedings that Ms Williams had significant difficulty, in part as the result of the way in which the Tribunal Member conducted the hearing. The Tribunal Member gave Ms Williams an explanation of the procedures to be followed, before calling on the first defendant to call its witnesses. In the explanation given, no mention was made of Mrs Williams having any right to question or cross-examine any of those witnesses. ... 24The Court noted (at [9]) that the Tribunal member told Ms Williams, after two of her opponent's witnesses had given evidence, that she was entitled to cross examine, and Ms Williams responded by saying that she would not ask those witnesses any questions. The Court continued (at [10]): [10] This was the first time that any mention was made of any right to ask questions. There was no explanation given by the Tribunal as to what cross-examination involved, or what its purpose was, namely to challenge the evidence which the witness had given, as to its truth and/or reliability. Before Ms Williams gave up the right to question the defendant's witnesses, as a matter of elementary fairness, she ought to have been given some explanation of the purpose of cross-examination, albeit in the context of the proceedings before the Tribunal, that explanation could have been given in simple terms. 25Later in her Honour's judgment, Schmidt J made the following comments about the rules applicable in a tribunal (at [47]-[49]): [47] While the proceedings here in question came before the Tribunal, rather than a court, given that this statutory scheme requires the Tribunal to adhere to rules of procedural fairness, and to act according to equity, good consciousness and the substantial merits of the case, the importance of ensuring that Ms Williams had a fair opportunity to cross-examine the defendant's witnesses is apparent. At the least, she needed to be given some explanation of what the process was and why it was important. [48] That is underscored when consideration is given to the fact that the power to examine and cross-examine witnesses given by s 39 of the Consumer, Trader and Tenancy Tribunal Act was one which the Tribunal Member plainly exercised in relation to witnesses Ms Williams called, but without explaining that this power was available to be exercised by the Tribunal. It is also relevant that it was not one exercised in the same way, in relation to the witnesses called by the defendant, a matter about which Ms Williams complained. The result of the approach adopted was that the evidence given by the defendant's witnesses was not explored or challenged, but the evidence which she called was closely examined by the Tribunal Member. [49] That is an unusual approach to adopt in adversarial proceedings such as this, particularly where the first defendant was represented, but Ms Williams was not. It is not one about which the first defendant complains. It is Ms Williams who complains that by the approach adopted by the Tribunal Member, she was denied procedural fairness. Given that she was also not given the opportunity to make any submissions as to the case brought against her, as the first defendant had been, it is impossible to see that the approach adopted adhered to the statutory requirements governing the conduct of these proceedings. 26Williams v NSW Land and Housing Corporation [2012] NSWSC 1022 was cited with approval in Cheung v Yang [2013] NSWSC 1694 at [48], a case which raised similar issues but in which the court found there had been no denial of procedural fairness. Harrison J considered an argument that the CTTT had an obligation to ensure that an unrepresented litigant, Mr Cheung, understood the procedural aspects of the case so that he received a fair hearing. Mr Cheung said that the CTTT failed to explain to him the procedures for hearing, including that he might seek to cross-examine witnesses (at [45]) and also said that the CTTT erred in failing to allow him an opportunity to cross-examine (at [47]-[49]). 27The Court held that the CTTT did not make an error in directing that there was to be no cross-examination (at [58]). The issue on which Mr Cheung said he would have cross-examined "effectively disappeared" given the course the CTTT took (at [59]). The only limitation on the CTTT's power to dispense with cross-examination was its obligation to conform to the rules of procedural fairness and the Court held that it had done that (at [60]). 28The starting point for considering the requirements of procedural fairness is the statutory scheme (Williams v NSW Land and Housing Corporation [2012] NSWSC 1022 at [38], [47], [49], [60]). 29The statutory scheme applicable to this Tribunal is similar to that which applied to the former CTTT. This Tribunal is required to comply with the rules of natural justice when it conducts a hearing (Act, s 38(2); cf the repealed Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("CTTT Act"), s 28(2)). It is also required to take reasonably practicable measures "to ensure that the parties have a reasonable opportunity to be heard" (Act, s 38(5)(c); cf CTTT Act, s 35). 30The Tribunal has the power to "examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings" and may "call any witness of its own motion" (Act, s 46(1)(a), (c); cf CTTT Act, s 39(1)(a) and (c)). 31There is a difference between the two statutory schemes in relation to the requirement to explain procedural matters. Section 28(4)(b) of the CTTT Act provided that "[t]he Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand:... (b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings." By contrast, s 38(5)(b) of the Act provides that "[t]he Tribunal is to take such measures as are reasonably practicable... (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings" (emphasis added). 32The words "if requested to do so" might be taken to suggest that the Tribunal does not have a duty to explain to a party that they may cross examine the other side's witnesses unless the party asks the Tribunal whether they may cross examine. However, in our view, that interpretation of the provision is not warranted. 33Where a party is unrepresented, a court or tribunal has a common law duty to ensure that that party understands that they may cross examine the other party and that party's witnesses (subject of course to any contrary statutory provision): Lee v Cha [2008] NSWCA 13, Basten JA at [48]-[49]; Norfeld Pty Ltd v Jones trading as Watermark Patent & Trademark Attorneys [2014] NSWSC 992, Hamill J at [92]-[96]. This is particularly so where the absence of an understanding of a procedural matter adversely affects a party's opportunity to be heard. 34In the case of In the Marriage of N and M L Johnson (1997) 22 Fam LR 141 at 115, Ellis, Baker and Lindenmayer JJ commented: In the unreported decision of C and O (Fam C of A, Full Court, 18 March 1996, unreported) the Full Court of this Court, at p 22 held: This ground does however raise the wider issue as to under what circumstances the court is able to give assistance to an unrepresented litigant in the course of proceedings before it. Clearly a trial judge would be obliged to inform a litigant in person of the manner in which the trial is to proceed, the order of the calling of witnesses and the right which he or she has to cross-examine witnesses. Similarly, I am of the opinion that a trial judge should explain to a litigant in person any matters of procedure relative to the litigation and generally assist him or her by taking basic information from witnesses called, such as, name address and occupation and then indicating to him or her as the trial proceeds when he or she may ask questions, whether in chief or in cross-examination and when final submissions are to be made. 35Thus, the Full Court of the Family Court has recognised a judicial obligation to inform an unrepresented litigant of the right to cross-examine and to ask the litigant whether he or she wishes to ask a witness questions. That common law obligation also applies to this Tribunal and is not, in our view, excluded by s 38(5)(b) of the Act where assistance is not directly requested. 36In the circumstances of this case, the rules of natural justice required the Tribunal to explain to the appellant that he had a right to question the respondent's witnesses, and to give him some explanation of "what the process was and why it was important" (Williams v NSW Land and Housing Corporation [2012] NSWSC 1022 at [47]). If the Tribunal had done this, the appellant would then have had an opportunity to consider whether to request that those witnesses be made available for cross examination, and whether to request an adjournment so that this could occur. 37The appellant was entitled to expect that the author of the report and the letter relied upon by the respondent would come to the hearing, because the material provided to both parties by the Tribunal prior to the hearing stated: "If you are relying on witnesses, those witnesses must attend". 38The Tribunal was put on notice, when Mr Carter was giving evidence, of his view that he could communicate information to the author of the expert report which might cause the author to change his expert opinion. 39The respondent was given an opportunity to cross examine Mr Carter, and did so. This is not a case like Cheung v Yang [2013] NSWSC 1694 where neither party cross-examined the other's witnesses. Mr Carter's evidence did not comply with the Tribunal's procedural direction concerning expert witnesses, but Mr Carter nevertheless had some expertise and commented on the validity of the findings in the expert report. Thus, the person the appellant put forward as having some expertise as to the cause of the damage to the respondent's pool was cross-examined, and the respondent's expert was not available for cross-examination. This was not procedurally fair. 40The expert evidence which Mr Carter challenged was critical to the finding that the appellant was responsible for the damage to the respondent's pool. This again makes the case unlike Cheung v Yang [2013] NSWSC 1694, where the evidence which could have been challenged was not important for the outcome of the case. 41In the absence of an explanation from the Tribunal that there was, or may be, a right to cross examine the respondent's witnesses, and of the purpose of cross examination, the (unrepresented) appellant did not understand that he could request an adjournment and/or request that the respondent's witnesses attend for cross examination. This resulted in "practical injustice", given the importance of the expert evidence (Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam (2003) 214 CLR 1, Gleeson CJ at [37]). 42In these circumstances, the Tribunal did not ensure that the appellant had a reasonable opportunity to be heard, as it was required to do by s 38(2) and 38(5)(c) of the Act. This was an error of law. 43We order as follows: (1)Appeal upheld. (2)Order made by the Tribunal below quashed. (3)Pursuant to s 81(i)(e) of the Act, order that the case be reconsidered by the Tribunal below, with such further evidence as the Tribunal allows, consistently with the rules of procedural fairness. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 23 December 2014

Gallo v Duflou

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