Italiano v Carbone & Ors - [2005] NSWCA 177 - NSWCA 2005 case summary — Zoe

NSWNSWCA

Italiano v Carbone & Ors

[2005] NSWCA 177

Court of Appeal (NSW)|2005-06-02|Before: Spigelman CJ, Basten JA, Einstein J

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Source facts

Court

Court of Appeal (NSW)

Decision date

2005-06-02

Before

Spigelman CJ, Basten JA, Einstein J

Source

Original judgment source is linked above.

Judgment (100 paragraphs)

[1]

Background 25 This matter commenced with a claim filed in the Fair Trading Tribunal by the Third Opponent, Italiano's Painting and Decorating Pty Ltd ("the Company"), which was an entity controlled by the Claimant, Mr Giovanni Italiano. That claim was lodged on 16 November 2001. The respondent to the claim was Mr Carbone, the First Opponent in this Court. 26 On 25 February 2002 the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act") came into force. Schedule 6 of the CTTT Act contained savings and transitional provisions which dealt with pending proceedings. Pursuant to clauses 3-6, such proceedings as had been commenced in the Fair Trading Tribunal continued in that Tribunal, which was maintained for the purpose, until a period of eight months after the commencement of the CTTT Act, namely until 25 October 2002. Thereafter, separate provision was made for pending proceedings which had "not commenced to be heard" by the Fair Trading Tribunal (clause 7(1)), pending proceedings which a former Tribunal "had commenced to hear, but had not finally determined" (clause 7(2)) and pending applications for re-hearings (clause 8). As at 25 October 2002, the substantive hearing of the claim filed by the Third Opponent had not commenced, but directions had been given by the Tribunal on two occasions, namely on 25 March 2002 and 19 September 2002. The hearing of the substantive issues was fixed for 21 February 2003, when the Respondent to the claim, the First Opponent in these proceedings (Mr Carbone) did not attend. Orders were made by the Tribunal in favour of the Third Opponent, but on 28 February 2003 the First Opponent made an application for a rehearing. Schedule 6, clause 8 of the CTTT Act makes provision for applications for rehearing made before the commencement of the CTTT Act. If not dealt with by the commencement date, they were to be dealt with "in accordance with this Act as if the application had been made under this Act." 27 Although the orders sought in the summons seeking leave to appeal to this Court refer, in the alternative, to orders of the Consumer, Trader and Tenancy Tribunal and the Fair Trading Tribunal, no argument was put to the Court in support of the view that the Fair Trading Tribunal had made any relevant order in these proceedings. That approach was correct. Whichever limb of clause 7 of Schedule 6 operated, the matter was heard on 21 February 2003 by the Consumer, Trader and Tenancy Tribunal (hereafter, "the Tribunal"). The application for a rehearing made on 28 February 2003 was not covered by clause 8 of Schedule 6, but the scheme of the Schedule is consistent only with an application for rehearing of a matter dealt with by the Tribunal being an application made under the CTTT Act, to be determined by the Tribunal. 28 The application for a rehearing was granted on 1 April 2003 and occurred on 29 May 2003. On 23 May 2003 the First Opponent sent to the Third Opponent an amended "cross-claim" which sought damages, not merely against the Third Opponent, but also against the Claimant personally. On 29 May 2003 the Tribunal dealt with both the rehearing of the claim made by the Third Opponent and the "cross-claim" filed by the First Opponent against the Claimant personally. It was the First Opponent's case that his agreement for painting services was with Mr Italiano himself, and not with his company. Orders and Reasons for Decision were made on 24 June 2003. 29 The result of the hearing on 29 May 2003 was that the claim made by the Company for payment of on a quantum meruit basis was rejected. In reaching that conclusion, the Tribunal stated that "neither Mr Italiano nor his company can recover on their claim". Complaint is made in this Court that Mr Italiano never made a claim in his own name, his case being that all of the work was undertaken by him on behalf of the Company. However, the primary relevance of this complaint is that it is said to demonstrate a failure by the Tribunal to distinguish properly between the legal obligations and entitlements of the Claimant and the Company. This is a matter which will be dealt with below. 30 The primary order made by the Tribunal in its decision dated 24 June 2003 was that the Claimant pay to the First Opponent an amount of $74,500 by way of damages for the defective painting services rendered by the Claimant. The Claimant's case, as presented in this Court, was that the Claimant, not being a party to the proceedings before the Tribunal, could not properly have been made the subject of an order for payment of money. 31 The proceedings in the Common Law Division were commenced by summons filed on 10 December 2003. That summons was in form an appeal from the decision of the Tribunal, made pursuant to s.67 of the CTTT Act. That section, relevantly for present purposes provides: "67(1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the Supreme Court against the decision. (2) An appeal is to be made in accordance with the rules of the Supreme Court. The rules of the Supreme Court may provide that an appeal (or such classes of appeal as may be specified in the rules) may be made only with the leave of the court." 32 Part 51A of the Supreme Court Rules does not generally require that an appeal pursuant to s.67 be made only with leave of the Court. However, it does require that an appeal be instituted within 28 days after the date on which notice of the decision "was given to the person who wishes to appeal by or on behalf of the person who made the decision": Part 51A, rule 2 "material date", (b); rule 3(1). Although the Master stated that an appeal "may only be made with leave of the Court", her Honour in fact dealt with the matter by reference to the need for an extension of time. 33 The Master also noted a "preliminary argument" that the Claimant "is not a party to the proceedings and the provisions to extend time to appeal do not apply". That argument appears to have been rejected on the ground that, as the Claimant was "bound by" the order of the Tribunal, "it is necessary for him to apply to an extension of time". 34 In this Court, the Claimant maintained his assertion that he was not a party to the proceedings before the Tribunal. He also maintained that the proceedings commenced in the Common Law Division constituted not only an application for leave to appeal out of time, but proceedings for prerogative relief pursuant to s.69 of the Supreme Court Act. There was some doubt as to whether, merely by seeking an order that the decision of the Tribunal be set aside, the Claimant had adequately invoked the relief available under that provision. In particular, the grounds provided did not in terms assert jurisdictional error or error of a kind which might otherwise attract a grant of prerogative. 35 The Claimant's case that he was never a party to the proceedings before the Tribunal needed to overcome two alternative contrary contentions. The first was that he was properly joined by the "cross-claim" filed by the First Opponent; the second was that the "cross-claim" constituted a fresh application by the First Opponent. 36 The document entitled "Amended Cross-Claim" included as a first paragraph: "1. That Giovanni Italiano be joined as an additional Cross-Respondent in matter 01/824369 as the agreement to carry out painting works was directly between Giovanni Italiano and the Respondent/Cross-Claimant."

[2]

The reference to "the Respondent/Cross-Claimant" was a reference to Mr Carbone, the First Opponent in this Court. 37 The Claimant's position in relation to this document was twofold: first, he pointed out, correctly, that as a matter of fact the Tribunal made no order for his joinder, as sought by Mr Carbone. Secondly, he argued that there was no procedure available to the Tribunal by which a respondent could file a cross-claim against a third party. In the alternative, to the extent that the Tribunal had power to join a third party, it had not properly exercised its powers in the present case. 38 As a matter of principle, there is much to be said for the proposition that proceedings before the Tribunal should be conducted with such attention to procedure as is necessary to ensure that a person who is at risk of suffering an order against him or her is made aware in an appropriate manner of that risk and given an appropriate opportunity to present a case in response to the claim. The failure on the part of the Tribunal to address the question of joinder is, in the abstract, a matter of concern. The present case resulted in the dismissal of a claim in quantum meruit by the Company for an amount of approximately $33,000 and the upholding of the cross-claim against the Claimant in an amount of $74,500. Further, the jurisdiction of the Tribunal under the Home Building Act (1989) (NSW) extended to a claim for an amount up to $500,000: s.48K(1). These amounts are not trivial and, subject to what is to be found in the specific statutory provisions discussed below, suggest that care should be taken so that parties, whether corporations or individuals, are not subjected to quite significant liabilities without being properly put on notice that they are at risk. 39 On the other hand, the failure of the Tribunal to make the order sought by the First Opponent does not mean that the Claimant was not aware of the case sought to be made against him, nor that he was necessarily in ignorance of the fact that damages were sought against him personally. The Claimant gave evidence before the Tribunal and was asked a number of questions unequivocally directed to the proposition that there was no agreement between the First Opponent and the Third Opponent (the Company) but that the work was undertaken and carried out by the Claimant in his own name. The Tribunal reached an affirmative satisfaction that the arrangement, whether contractually enforceable or not, was between the First Opponent and the Claimant, not the Company. 40 Despite being called an "amended cross-claim", the First Opponent argued the document could properly be treated by the Tribunal as a fresh application, which was before it at the hearing on 29 May 2003 and hence there was no need for a separate order joining the Claimant to the proceedings brought in the name of his company. The Home Building Act requires that a building claim be brought no more than three years after the last date on which any relevant services were supplied: s.48K(3). As the work undertaken by the Claimant, or his company, was not completed until December 2000, it would have been open to the First Opponent to make such a claim for payment of a specified sum of money in relation to the supply of building services up until December 2003. 41 The Claimant's argument that he was not a party to the proceedings before the Tribunal gave rise to two consequences. The first was that the order for payment was ultra vires because the power of the Tribunal did not extend to making an order that a person who is not a party to the proceedings before it pay money to another person. As this case involves a "building claim" within Part 3A of the Home Building Act, the powers of the Tribunal are those found in s.48O of the Home Building Act. The relevant power is expressed as a power to make an order "that one party to the proceedings pay money to another party or to a person specified in the order …": s.48O(1)(a). The Claimant was thus correct to assert that the Tribunal acted ultra vires if he were not a "party to the proceedings", but that contention fails in the circumstances for the reasons set out above. 42 The second limb of his claim was expressed in the following terms: "As the Claimant was not a party to the proceedings, the appeal provision, as well as time provisions in s.67 of the CTTT Act do not apply to the Claimant: he was not out of time."

[4]

This provision provided the Claimant with something of a dilemma: if he were not a party for the purposes of s.48O of the Home Building Act , and thus not a person against whom an order might be made by the Tribunal, was he nevertheless a "party in the proceedings" for the purposes of s.67(1), for the purpose of seeking to set aside an order improperly made against him? No argument was directed to this dilemma and it may not be necessary to resolve it for the purpose of this proceeding. However, the application in the Common Law Division commenced with a claim that "the time for the commencement of this appeal be extended". Further, the grounds identified in the summons were not formulated in terms which would support a claim for prerogative relief pursuant to s.69 of the Supreme Court Act . 44 Nevertheless, the first substantive order sought in the summons was that the decision of the Tribunal "be set aside", a form of order which would sufficiently reflect an order in lieu of a writ of certiorari. Further, Mr Barham, who appeared for the Claimant, asserted that he put his case on the basis of prerogative relief, as well as leave to appeal out of time, before the Master. In the circumstances, the Court, at the hearing, granted him leave to reformulate his application for relief so as to reflect the general law requirements in that regard. 45 It will be necessary to assess the circumstances outlined above against the statutory scheme. 46 The Master dismissed the summons before her on the ground that an extension of time was required and the delay in commencing proceedings had not been satisfactorily explained by the Claimant. There was no significant challenge to that conclusion in this Court. Rather, the Claimant placed weight upon his contentions that he was not a party, so that the order of the Tribunal was ultra vires and he did not require an extension of time. However, he did assert that, whether or not he had been made a party, the proceedings before the Tribunal were procedurally unfair, with the result that the order was invalid in any event. 47 The criteria relevant to an extension of time extend beyond the reason for delay. In Gallo v Dawson (1990) 64 ALJR 458 at 459F-G (col 1), McHugh J stated: "When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal … ."

[12]

Notice sent by post will be deemed to have been given on the fourth working day after the letter was posted: Interpretation Act 1987 (NSW), s.76(1)(a); see also CTTT Regulation, clause 47(4). 53 Clause 47 of the CTTT Regulation provides for service of documents. Subsections (1) and (2) deal with the service of applications and summonses. Subsection (3) is relevant for present purposes and provides: "(3) Service of any other document may be effected in any manner provided by s.78 of the Act or in any of the following ways: (a) if the person has an address for service on record with the Registry; (i) by pre-paid ordinary post addressed to the person's address for service … ." 54 No specific aspect of these provisions is in issue in the present proceedings: rather, it is contended that the notice was not given to the Claimant, although sent to his proper address, because the covering notation over the hand of the agent of the Registrar was directed to the Company. Accordingly, it was argued, he was not, and never has been, given notice by the Registrar of the decision of the Tribunal. Accordingly, time within which to appeal had not commenced to run at any point prior to the filing of the summons in the Common Law Division on 10 December 2003. 55 There is no express requirement in any of these provisions that the name of the party must be correctly stated on the notice, or the envelope containing the notice. Nevertheless, it is appropriate to imply a requirement that the "address" must be sufficient to identify the person concerned as the intended recipient. Further, separate legal entities must be treated separately. Thus, the Supreme Court Rules provide that where a husband and wife are parties to proceedings, service on one shall not have effect as against the other: Part 9, rule 13. 56 That the order came to the notice of the Claimant is not disputed. A notice of judgment was filed in the District Court against the Claimant personally and a copy of the order of the Tribunal was annexed to that notice and to a bankruptcy notice issued by the First Opponent against the Claimant personally. The Claimant did not suggest in this Court that he was not aware of the existence of the order of the Tribunal. Indeed, in the Common Law Division, the Claimant filed an affidavit in which he identified himself as the sole director and secretary of the Company. He further gave evidence that the Company had received the notice of order from the Tribunal on or about 30 June 2003. His affidavit continued: "In early July 2003, I sought advice about the notice of order from Stoikovich Macri Solicitors."

[16]

Following that, and other authority, his Honour was satisfied that, the writ having come into the possession of the defendant on the day on which it was given to his wife, there had been good personal service. 59 In Guss v Magistrate's Court at Victoria [2003] VSC 365, Osborn J considered a challenge to the valid service of a summons to answer a charge. The summons had not, as required by s.34 of the Magistrate's Court Act 1989 (Vic) been delivered to the defendant personally, nor had a true copy been left at the "most usual place of residence or of business" with a person apparently not less than 16 years of age. The business address at which the summons had in fact been left was the address of a corporation of which the plaintiff was not a director and which did not satisfy the statutory description. Nevertheless, he agreed in cross-examination that he had been notified of receipt of the copy of the summons and had received a copy some days later. In following Pino, his Honour noted at [14]: "It is perhaps a tribute to the plaintiff's determination to avoid a hearing on the merits that it appears that no court has previously been faced with the argument that despite sworn evidence that a person in fact received delivery of a summons left for him nevertheless such summons was not served in accordance with the Act and its predecessors." 60 A similar conclusion was accepted by Young J in Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542. The defendants had sought a declaration that a summons had not been duly served on them in circumstances where, although they had received it, the mechanism by which it had come to their attention was by lodgement in a document exchange box. His Honour held (at 544B): "The ordinary meaning of 'service' is personal service, and personal service merely means that the document in question must come to the notice of the person for whom it is intended. The means by which that person obtains the document are usually immaterial. This is clear in cases that have been considered good law over the centuries, including Hope v Hope … Pino v Prosser ." 61 This approach was recently followed by Barrett J in Ketrim Pty Ltd v AS&L Pty Ltd (2004) 52 ACSR 252 at [16]-[18]. His Honour noted that a similar approach had been adopted in relation to service by facsimile transmission in Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2004] 1 Qd R 140 and Emhill Pty Ltd v Bonsoc Pty Ltd (2004) 50 ACSR 305. The latter case, a decision of Mandie J in the Supreme Court of Victoria, was, in a sense, the reverse of the present case in that proof of service upon a director was found to be proof of service on the company. At [28] his Honour noted: "Of course, proof of service of a document upon one director will not necessarily constitute proof that the document has actually come to the attention of the company of which he or she is a director. But in the present case Mr Cook is the sole director and secretary (and indeed shareholder) of the plaintiff company, and thus he is that company's directing mind and will. Not only did service of the document upon Mr Cook of necessity bring the document to the actual attention of the plaintiff company, but the evidence here is that Mr Cook expressly accepted service of the statutory demand on behalf of the plaintiff." 62 The CTTT Act merely requires that the Tribunal must "give notice of its decision": s.49(1). Although s.78 provides for certain means by which notice can be given, it is facultative and not exhaustive. Once satisfied that the Claimant in fact received notice of the decision (together with the reasons for decision) the statutory requirement was satisfied and time for appeal commenced to run. As a result, by the time the application for leave to appeal was made pursuant to the summons filed on 10 December 2003, an extension of time was required, if the proceeding in the Common Law Division was indeed a statutory appeal.

[18]

That provision applies in respect of classes of proceedings prescribed by the regulations: s.26(1). The classes of proceedings so prescribed are limited to those in which two or more persons have joint liability, and which arise in particular divisions of the Tribunal: CTTT Regulation 2002, clause 26. They do not appear to include the present proceedings and accordingly s.26 of the CTTT Act provides no assistance to the First Opponent. 65 Nevertheless, there is a general provision relating to joinder of parties to be found in clause 29 of the CTTT Regulation. That clause provides: "29. Joinder of parties (1) If the Tribunal is of the opinion that a person has a sufficient interest in the dispute to which an application to the Tribunal relates that the person has not been served with notice of the application, the Tribunal may make an order directing that the person be joined either as an applicant or as a respondent as appears to the Tribunal to be appropriate, and notice of the proceedings is to be served accordingly." 66 It is far from clear that the Tribunal addressed itself to its powers under this clause, or that its attention was directed to the clause. Nevertheless, it would clearly have been open to the Tribunal to be satisfied that the dispute to which the application related was one in which the Claimant had "a sufficient interest" to be properly joined. The dispute related to the painting of the First Opponent's home, a relevant question being whether the work had been carried out by the Claimant or by the Company, the Third Opponent. However, the Tribunal did not make any order directing that the Claimant be joined, nor was notice of the proceedings formally served on the Claimant, perhaps because he had already received the amended cross-claim. Accordingly, if this clause is to be relied upon by the First Opponent, there is a question as to whether non-compliance with its terms is fatal to the proposition that the Claimant was joined in the proceedings. 67 Section 32 of the CTTT Act is headed "Amendments and irregularities". Subsection (3) provides: "(3) If a provision of this Act or the regulations is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal otherwise determines."

[29]

The Claimant argued that there was no written or oral direction which in terms joined him as a party to the proceedings. He further argued that the effect of s.48Q, while in terms facultative, was to provide a mandatory procedure to be followed once the Tribunal had formed the relevant opinion and determined to exercise its discretionary power in favour of joinder. Because the Home Building Act dealt with a specific kind of claim before the Tribunal, it was a specific provision which was entitled to priority over the general procedural provisions of the CTTT Act. 73 Where there are two provisions governing one aspect of the Tribunal's procedure, in different terms, it is clearly arguable that the one which deals with a specific part of the Tribunal's jurisdiction will operate so as to exclude or qualify the operation of a different provision applying generally to the Tribunal's proceedings. However, in the present case, s.48Q of the Home Building Act is in terms which reflect s.26(4) of the CTTT Act, but effectively expand its operation to a further class of proceedings. In addition, s.48Q extends beyond circumstances involving a person having a joint liability. It thus bears analogy with clause 29 of the CTTT Regulation, although it is somewhat differently worded. These considerations suggest it may better be seen as facultative than restrictive. 74 Whilst it may be conceded that the express terms of s.32(3) of the CTTT Act, requiring certain non-compliance to be treated as an irregularity, do not apply to s.48Q, it does not follow that a failure to comply with s.48Q, by giving an express direction, renders the proceedings a nullity in relation to the person intended to be joined but not expressly joined. 75 Whether or not s.48Q has such an effect depends upon questions of statutory construction: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93]. As stated in the joint judgment in that case: "The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particular in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'."

[32]

(3) Procedural fairness claim 80 In one sense, it may seem curious to seek to divorce questions of procedural fairness derived from the general law, albeit incorporated by s.28(3) of the CTTT Act, from questions of mandatory and specific statutory procedures. To deal with the matters in this order is unusual because the content of procedural fairness is capable of control by the Parliament and must in any event be determined in its statutory context. On the other hand, the general law principles are relevant to the effect of the specific statutory requirements and inform the consequences of breach, where those consequences are not made explicit by the statute. In the present case, the statutory provisions tend to expand, to an extent, the scope of obligations which might otherwise have been implied: but because they serve the goals of procedural fairness, invalidity may more readily be inferred as the intended consequence of breach. 81 Accepting his claim of ignorance of that significant change in the nature of the proceedings, he nevertheless accepted that he had received a copy of the "amended answer" and "amended cross-claim" from the First Opponent, two days before the hearing. He had not read them, but had referred them to a "building advocate" who had been appearing for the Company in prosecuting its claim in the Tribunal. The Claimant filed an affidavit in the Common Law Division annexing a copy of the letter of 23 May 2003 with the attached amended pleadings in the Tribunal. He further noted that at the hearing before the Tribunal on 29 May 2003 the Company was represented by the builder's advocate, whilst he represented himself. He noted, no doubt correctly, that the matter proceeded before the Tribunal "without any reference being made to myself being joined to the proceedings personally". He gave oral evidence before the Master that he did not read the documents before he gave them to the builder's advocate. He gave no evidence as to whether he had communicated with the advocate as to this matter. And, although it may not count for much, the advocate indicated to the Tribunal that he was appearing for Mr Italiano as well as the Company. 82 In proceedings for prerogative relief, facts relevant to establishing procedural unfairness may be found by the reviewing court. Although the evidence is sparse, one might infer that there was some confusion in the mind of the Claimant as to his role in the proceedings. That confusion was not helped by the failure of the Tribunal to make any express order in relation to the application that he be joined in those proceedings. Nevertheless, it must have been clear well before the completion of the hearing that his own role as an individual was a live issue before the Tribunal because the question was agitated as to whether he had, in his dealings with the First Opponent, ever mentioned the existence of his company. The Tribunal found on the facts that he had not and that there was no agreement involving the Company. 83 There seems little doubt that, had the Claimant made an application, at any stage between the receipt of the amended pleadings from the First Opponent and the completion of the hearing before the Tribunal on 29 May 2003, for an adjournment so that he could address the claim made against himself personally, it must have had good prospects of success. In fact an application for an adjournment was made by the builder's advocate, but only on the basis that he was unaware that the matter was proceeding by way of rehearing and that he had to rerun his case for the Company, seeking a payment on a quantum meruit basis. That adjournment application was refused. No application was made by the Claimant personally, or by the builder's advocate on his behalf, that the matter be adjourned to allow him to consider his personal position in relation to the cross-claim. 84 Although a number of additional claims added to the end of the amended cross-claim given to the Claimant two days before the hearing, the substance of the cross-claim as made against the Company in February 2002 had been known to the Claimant for more than a year. The live issue, which was both novel and contested, was with whom the First Opponent had sought to reach an agreement for the painting services rendered by the Claimant. 85 A claim based on procedural unfairness, in these circumstances, must demonstrate that the confusion in the mind of the Claimant was such that he cannot be said to have foregone a reasonable opportunity to make an application for an adjournment, or that the circumstances were otherwise such that the Tribunal itself had an obligation to consider offering an adjournment. 86 In the present case, there was a hearing at which the Claimant had the opportunity to seek an adjournment so that he could better prepare a defence to a case of which he had inadequate notice. His failure to make an application in that regard, absent some satisfactory explanation, itself grounded on procedural unfairness, is fatal to this aspect of his claim. He did not give evidence before the Master that his failure to seek an adjournment was because at no stage prior to the completion of the hearing, did he understand that any claim was made against him personally. Had he given such evidence, it could well have been subjected to serious challenge. In any event, it was a matter of fact for him to establish before the Master and that he did not seek to do. 87 Absent such evidence, he cannot succeed in this Court because to do so he must ask this Court, in effect, to consider and determine in his favour an application for an adjournment which he did not make before the Tribunal. Such a request would involve a rehearing of an aspect of the Tribunal proceeding. No such factual inquiry can be undertaken by way of judicial review or on an appeal on a question of law. It is for an analogous reason that, where a breach of procedural fairness is established, the Court will not inquire into the consequences in the particular circumstance, unless "it is confident that the breach could not have affected the outcome": Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [104] (McHugh J). 88 An opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness. To demonstrate procedural fairness it is usually necessary to show that a claimant "lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment", as explained by Gleeson CJ in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]. As the Chief Justice continued at [37]: "A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations." : at [37]. 89 The facts of the present case are not far removed from those considered by this Court in Boghossian v Warner [2000] NSWCA 27. That case involved an application by Mr Warner, a property owner, with respect to a building, which had "wholly suspended the carrying out" of certain building works which he had been contracted to do by Mr Warner and Mr Boghossian. According to the trial judge, the relationship of Mr Warner and Mr Boghossian was that of joint venturers. The defence of the builder, Nascon Pty Ltd, was that it had stopped work because it had not received amounts due to it by way of progress payments. Its claim was that Mr Boghossian, who had responsibility for making the progress payments, on behalf of himself and Mr Warner, had been seeking and receiving "secret payments" from the builder. Some payments had been made, but the builder then resisted further demands and sought return of the money which had been deducted from the progress payments. 90 When Mr Warner appreciated the nature of the defence, he, in substance, formed common cause with the builder and sought to pursue the claim against Mr Boghossian and increased his claim from $10,025 to $25,000. He requested that Mr Boghossian be joined as a respondent. 91 Mr Boghossian was joined as a respondent and the hearing of the claim was resumed, with the builder giving evidence of the bribes he had paid to Mr Boghossian and the Tribunal questioning Mr Boghossian about the matter. Mr Boghossian had asked for an Armenian interpreter to be present at the hearing, but that had not eventuated. During the questioning of him, he asked that the hearing adjourned to a time when an interpreter could be arranged. The adjournment application was acceded to by the Tribunal although the referee thought that Mr Boghossian "understood and spoke English well": at [19]. 92 In giving evidence before the primary judge, Mr Boghossian "acknowledged that by the end of the hearing on 21 June he realised that Mr Warner was joining in the builder's accusations against him and seeking relief against him on that basis. It was that realisation that prompted him to cry halt and to press for an adjournment based upon the absence of the interpreter, which had been previously promised on behalf of the Tribunal": at [20]. The matter continued on 26 July with the assistance of an Armenian interpreter. 93 In addition to whatever difficulties may have been attended by the absence of an interpreter on 21 June 1996, those difficulties were magnified by the fact that the copy of the notice by which the claimant was joined as a party did not attach a memorandum prepared by Mr Warner which provided the details of the claim against Mr Boghossian and the basis of the claim. Mr Boghossian provided an affidavit in the Supreme Court to the effect that: "As a result of receiving the first notice I knew I had to go court. I thought I was going to court as Mr Warner's partner to be a witness as we were claiming against the builder." Judgment at [13]. 94 To this stage, it may be seen that the position of Mr Boghossian had elements similar to the complaints of the Claimant in the present proceedings. Mr Boghossian had originally had knowledge of the proceedings on the basis that he was an applicant, rather than a respondent. On his own complaint, he did not fully understand the true position until the second hearing, on 26 July, when he sought to refute the bribery allegation. However, the Referee rejected his evidence as "incredible": at [25]. The primary judge found as a fact, that Mr Boghossian was aware that the builder had been claiming that he had demanded "kick-backs", such awareness dating from no later than December 1995. His Honour had also found that the claimant's evidence to the Supreme Court was "evasive and untruthful and that his asserted lack of understanding was a pretence": at [30]. Mr Boghossian appealed to this Court. In his judgment, at [36]-[37], the President noted: "The claimant submitted that the Tribunal's jurisdiction vis-à-vis the claimant was not duly engaged because the Warner memorandum was not served upon him. In my view this submission should be rejected. Section 13 of the Act deals with the making of a consumer claim, and it confines itself the lodgement of the claim in approved form and payment of the prescribed fee. Additional parties may be joined (s.14(2)) and necessary amendments may be made (s.19). These requirements were met in the present case. The Act is clear in its requirements that notice of the claim must be given to affected persons (s.14(1)(c) and (d), s.14(3), s.14(7)). Breach of these important procedural requirements may ground a denial of natural justice, but I can see no indication in the statute that such breach went to the jurisdiction of the Tribunal in the sense contemplated by s.12(2) of the Act."

[33]

His Honour then went on to consider the complaint that there had been no written statement of the material allegations of fact and that the Tribunal had simply deemed the necessary amendments as having been made. This was particularly so when the claimant's solicitor's reasonable request for particulars had gone unanswered, and in circumstances where critical evidence had been given at the earlier hearing without the claimant having the benefit of a translator. In this regard the President noted at [44]-[45]: "I find this a troubling case. On the one hand there was a clear breach of the express statutory requirement to give the newly joined respondent written notice of the claim as it affected his interests. The need for such notice was underlined by the language difficulties under which the claimant laboured (however much exaggerated) and by the fact that the claimant was unrepresented. The allegations were serious and the outcome costly so far as the claimant was concerned. In the end I have concluded that Smart J was correct in dismissing the summons on the basis of his findings as to the claimant's true understanding. It must not be forgotten that the ultimate issue is compliance with the rules of procedural fairness, not just compliance with the procedural mandates of the Act." 95 For reasons noted above, the Claimant in the present case did receive written notice of the allegations against him and, though belatedly, of the fact that they were made against him personally and not just his company. The fact that he did not read them, but merely sent them to the advocate who was appearing for the company, is not of itself, an excuse, but neither was it so unreasonable in the circumstances as to constitute an unjustified rejection of a reasonable opportunity to respond. Ultimately, the case turns upon the circumstances of that lost opportunity and the evidence as to what might have eventuated, had he availed himself of the opportunity. 96 In relation to his justification for not realising that the First Opponent was seeking to make a claim against him personally, it may be noted that, although addressed to the company, the letter attaching the amended answer and the amended cross-claim were directed to his attention, by name and the letter read: "Dear Sir Re: Carbone v You We refer to the abovementioned matter and enclose herewith the following documentation by way of service upon you: 1. Amended answer; 2. Amended cross-claim." 97 Absent any explanation from the Claimant, the Court would be entitled to consider that such a letter sufficiently drew to his attention the fact that the claim which had previously been limited to his company was not being made against him personally. Of course, a contrary inference was available, but the Claimant did not say he drew any contrary inference: he merely said he did not read either the letter or the enclosures. 98 The second matter of concern is his evidence of what he would have done had he read the documents and realised that the claim was made against him personally. In his affidavit he merely stated: "Had I been aware at the time of the hearing, that I was personally a party to the proceedings, I would have sought further advice from a solicitor."

[34]

That affidavit was sworn on 9 March 2004, for the purpose of the Supreme Court proceedings. The proceedings in the Tribunal had been concluded on 29 May 2003, some nine months earlier. The answer was not elaborated upon in oral evidence. In my view, had he suffered any practical disadvantage, he should have identified the disadvantage or prejudice suffered and explained how it had come about. The bald statement that he would have consulted a solicitor, especially when made many months after he had in fact consulted a solicitor, constitutes, in my view, a stark failure to demonstrate such prejudice. 99 Following the hearing, the Claimant filed an amended draft notice of appeal, which included a claim for an order in the nature of certiorari quashing the decision of the Tribunal. The additional ground upon which that was sought was said to be (in substance) the failure of the Tribunal to adjourn the proceedings, on the application of the Company and the Claimant, such failure constituting a denial of natural justice. The ground was restricted to the actual adjournment made, namely that in relation to the quantum meruit claim brought by the Company. The ground contains a suggestion that such a claim was also brought on behalf of the Claimant. No doubt it would have been understandable for the Claimant to make such a claim, in the alternative to that made by the Company, in case the Tribunal member should uphold the contention of the First Opponent that the services were indeed provided by the Claimant personally and not by the Company. Nevertheless, no such alternative claim was made, nor was the adjournment application sought on the basis that such a claim was proposed. 100 The restriction of the ground to the complaint that there had been no real opportunity given to the Company, or, arguably the Claimant, to present the case with respect to the quantum meruit claim appears to accord with the way in which the matter was dealt with before the Master. Thus, her Honour stated at [33]: "True it is, that the [Claimant], if the matter was remitted, may be able to properly prepare his case on damages … . In any event, the damages component of the claim was not put in issue in this appeal." 101 In dealing with the adjournment application, the Tribunal noted: "The basis upon which the application is said to be brought is that there was no apprehension on the applicant's side of the matter that this was to be a rehearing. It is also said that the applicant needs to get evidence to satisfy the requirements of s.94 of the Home Building Act in relation to uninsured building work where the applicant is making a claim in effect to be excused its failure to have the statutory insurance required by s.92. There is no dispute on the applicant's side that there has been a failure to comply with s.7 of the Home Building Act as well as a failure to comply with s.92. … [T]hey were always going to be issues in dispute before the tribunal. I say that because they are clearly raised in the answer filed by the owner in the former Fair Trading Tribunal, which now forms part of this tribunal's proceedings, and contained in the folder of documents lodged with the tribunal, in accordance with the previous direction, and served."

[38]

(4) Statutory non-compliance: other provisions 104 The conclusion reached above at [77] was that there had been no procedural breach sufficient to invalidate the proceedings before the Tribunal in relation to the failure to make an express order joining the Claimant as a party. The result of that conclusion was that the Claimant was properly treated by the Tribunal as being a party in the proceedings before it. Similarly, the conclusion that the failure of the Tribunal to grant an adjournment did not breach any duty with respect to procedural fairness which might have been implied by the general law does not dispose of all questions relating to statutory requirements of a kind which may properly be seen as providing express elements of procedural fairness. 105 The remaining question is thus whether, on the evidence, the Tribunal was under an independent obligation to take particular steps which it did not do. If so, the consequent question is whether its failure invalidated the resulting orders. There is statutory support in the CTTT Act for such obligations. Thus, s.35 (set out at [69] above) provides that the Tribunal "must ensure" that each party is given "a reasonable opportunity" to present its case. Where necessary this will entail offering an appropriate adjournment, whether sought or not. In addition, s.28(4) (see [68] above) requires the Tribunal to "take such measures as are reasonably practicable" to ensure that the parties understand not only the nature of the assertions made in the proceedings, but also "the legal implications of those assertions". 106 There are, as already noted, provisions which allow the Tribunal 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. That conclusion is consistent with the approach adopted by the High Court in SAAP in relation to the obligation imposed on the Refugee Review Tribunal under s.424A of the Migration Act to give an applicant, in the way that the Tribunal considered appropriate in the circumstances, information which the Tribunal considered might be the reason or part of the reason for affirming the decision adverse to the applicant. 107 A provision in similar terms to those contained in s.35 of the CTTT Act led Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 342 (25) to state: "Where a Tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe… . If, in all the circumstances, the failure of the Tribunal to adjourn the matter to enable Dr Evans to be called as a witness or to alert the appellant of his right to apply for such an adjournment constituted a denial to the appellant of a reasonable opportunity of presenting his case, both the common law principles applicable to a tribunal under a duty to act judicially and the specific provisions [of the Act] entitle the appellant to the intervention of this Court."

[41]

In the circumstances before him, Drummond J was not satisfied that there was confusion in the mind of Mr Hodgkinson in the manner alleged and, accordingly, was not satisfied that the inquiry conducted by the Board had been procedurally unfair. 109 The principles set out in Sullivan, Bayram and Hodgkinson (together with other authorities) were applied by Rolfe J in Hutley v Meigan, an unreported decision in the Administrative Law Division delivered on 19 December 1996. The application of the principles is relevant only to the extent that they were applied with respect to a "consumer claim" heard by the Consumer Claims Tribunal, a predecessor of the present Tribunal. In that case, the applicants were faced with a specification of the particulars of a cross-claim handed to him at the hearing, which, in addition to approximately 17 defects identified in a report provided prior to the hearing, now particularised some 47 defects and sought, for the first time, to attribute a dollar figure to the cost of making them good. As Rolfe J noted: "… I am satisfied that the report of 7 December 1995 should have been made available to the plaintiff in advance of the hearing on 11 December 1995 or, if that were not done, there should have been an adjournment to enable him to meet it. To confront him with it during the hearing on that day and to allow only approximately 30 minutes to consider it and to refuse him the opportunity to call an expert witness … constituted, in my opinion, a denial of natural justice … ." 110 Material relevant to the complaint made by the Claimant before the Master has been set out above in relation to the question of general law procedural fairness. However, the answer to that question does not dispose of the factual issues presently under consideration. Further, the evidence of the Claimant before the Master clearly presented an issue of fact as to whether the Claimant adequately understood the nature of the assertions made in the proceedings against him personally and adequately understood the procedure being followed by the Tribunal in relation to those assertions. If he did not, there was an arguable breach of s.28(4) resulting from the failure of the Tribunal to take such measures as were reasonably practicable to ensure that the Claimant had such an understanding. One of the steps which the Tribunal might have taken was to make the order expressly sought by the First Opponent, namely that the Claimant be joined as a party. Further, had the Claimant been given such an understanding, he might well have joined in the application for an adjournment which, as noted above, might well have been difficult to resist. For these reasons, the Tribunal failed to take steps which were reasonably practicable, pursuant to s.28(4), and failed to provide a sufficient opportunity for the Claimant personally to present his case before the Tribunal, with a resultant contravention of s.35 of the CTTT Act. 111 The cross-examination before the Master sought to establish that the Claimant was being represented by the builder's advocate before the Tribunal and that, at least by the end of his cross-examination, he should have realised that the case being made by the First Opponent was directed against him personally. The conclusion reached by the Master was, in its terms, restricted to findings with respect to the joinder issue and the correctness of the finding by the Tribunal as to the identity of the true plaintiff. The Master concluded at [33]: "It is my view that during the hearing the Tribunal member should have made a formal order joining Giovanni Italiano to the proceedings prior to giving judgment. However, I do not propose to remit this matter to the Tribunal because both parties were examined and cross-examined upon the issue of the identity of the true plaintiff." 112 This conclusion did not resolve the factual issues concerning the non-compliance with the statutory provisions discussed above. This was in substance because the parties did not present the matter on that basis. Nevertheless, the evidence of the Claimant, brief though it was, supported a finding of a failure to comply with the statutory requirements as to procedure. Against the Claimant's evidence, there is nothing in the transcript which demonstrates that the Tribunal took any specific steps to ensure that the Claimant understood that he was personally at risk of an adverse order. A dispute as to the identity of the contracting parties would not necessarily demonstrate to a non-lawyer the significance of an adverse finding. Nor would the fact that a case was sought to be made against him personally, which might have become apparent during the course of his own cross-examination, provide a sufficient understanding of the risks at stake. Even if he did obtain such an understanding towards the end of his cross-examination, the adjournment application which had been made and lost was, by then, well in the past. He may not have understood the possibility of making a further application: relevantly, the Tribunal did not seek to ensure that he did have such an understanding as to the opportunities available to him and the nature of the procedures available in the Tribunal. 113 The next question is whether the failure to comply with the two statutory provisions identified above renders the decision of the Tribunal invalid. Section 28(4) provides that the Tribunal "is to take" measures "to ensure that" the parties have the relevant understanding. Section 35 provides that the Tribunal "must ensure" that each party has a reasonable opportunity to present its case. In SAAP (supra) the High Court held that provisions in the Migration Act which mandated specific procedures designed to ensure procedural fairness should be understood as mandatory, in the sense that a failure to comply with them would render the relevant decision invalid. Application of that principle in the present case would support the argument of the Claimant. Two propositions may be put against that conclusion. 114 First, as noted in particular by Hayne J, one of the majority in SAAP, the provisions in the Migration Act regulating the Refugee Review Tribunal were concerned with "the exercise of Executive power, not judicial power": ibid at [197]. His Honour continued: "The provisions are not made to regulate an adversarial contest that will culminate in a trial of issues joined between parties."

[43]

Nature of relief 116 An appeal lies from the Tribunal to this Court against a decision of the Tribunal "with respect to a matter of law", where the Tribunal decides such a matter: s.67(1). The error identified above does not easily fit within this description, the Tribunal having ignored, rather than decided the critical matters. Rather, there was a constructive failure by the Tribunal to exercise the jurisdiction vested in it by statute, in accordance with the mandatory requirements of the statute. Absent compliance with those requirements, the Tribunal "had no jurisdiction to make the order", a finding which falls within s.65(3)(a) of the CTTT Act. In those circumstances, the Court is empowered to grant relief in the nature of certiorari, pursuant to s.65(1)(a) of the CTTT Act. 117 Relief of that kind is discretionary. Relief 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: see generally, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [57]-[58] (Gaudron and Gummow JJ, Gleeson CJ agreeing) and see SAAP (supra) at [80] (McHugh J). In the present case, there has undoubtedly been delay. However, it is not suggested that the delay demonstrates an intention to waive any right to challenge the validity of the decision, nor acquiescence in it. Generally speaking, certiorari may be sought within a reasonable period of the making of a decision, which is not fixed in this State but in other jurisdictions is at periods varying from 60 days to six months, in all cases extendable by leave: see Aronson, Dyer and Groves, Judicial Review of Administrative Action, (3rd ed, 2004) p.718. 118 Because there was no right of appeal available, the issue of delay, and the reasons therefor, agitated before the Master, fall away. Of more importance in the present circumstances is the question of prejudice which may have been suffered by the First Opponent in seeking to rely upon the decision of the Tribunal. This consideration was not the subject of any clear basis for opposition to an order for relief, if the decision of the Tribunal were found to be otherwise beyond power. Rather, the First Opponent opposed the relief sought by way of certiorari on the grounds that it had not been sought, nor the relevant issues agitated, before the Master. There are two reasons for giving less weight to that complaint than might otherwise be appropriate. First, the basis upon which I would uphold the challenge to the decision of the Tribunal bears a close similarity to the primary complaint of the Claimant, namely that he was never properly joined in the proceedings. Secondly, the First Opponent was given an opportunity to put further submissions before the Court in relation to the alternative form of relief, and did so. In those circumstances, the discretionary grounds for refusing relief are not made out. 119 In these circumstances, I propose the following orders:

[47]

The second CTTT proceedings 131 Following the order for a rehearing, directions were given by the CTTT on 22 April 2003 requiring the company to provide Mr Carbone and the Registrar with a copy of an amended claim for payment based upon a quantum meruit count attaching details of its claim and certain further documents by 2 and 14 May 2003 respectively. The directions also required Mr Carbone by 21 May 2003 to provide to 'the respondent' and the Registrar documents in response to the amended claim and witness statements. 132 On 23 May 2003 Mr Carbone served an amended answer and an amended cross-claim on the company. Whether the amended cross-claim may be regarded as having acquired the status of a lodged application within the meaning of the Act is in issue. The amendments to the answer sought an order that Mr Italiano be joined as an additional applicant in the proceedings "as the agreement to carry out painting works was directly between [Mr Italiano] and [Mr Carbone]". Other amendments to be found in the answer included a claim that "the applicant has failed to provide a Certificate of Insurance as required by section 42 of the Home Building Act 1989 and therefore [that] this disentitled [it] to claim any moneys whether by way of contract or quantum meruit". Alternatively it was alleged that any such claim required to be reduced by the impact being diminished value of property as a result of the failure to provide insurance. A further new allegation was that in breach of the provisions of the Home Building Act the applicant was disentitled from recovering monies for works performed. A further allegation related to a claim that the agreement to carry out the painting works should be determined to be one indivisible contract/agreement for a lump sum price and should be held to be a non-severable contract. 133 The amended cross-claim sought to join Mr Italiano as an additional cross-respondent again upon the basis that the agreement had been entered into directly between Mr Italiano and "the Respondent/Cross-Claimant". Additional claims were added seeking the cost of rectification works. The amended cross-claim also included 7 new paragraphs inserted at the end of the document. Those claims sought damages by virtue of the reduced value in property, emotional anxiety, distress and embarrassment as to the works performed by the applicant and the inability to pursue an insurance claim under the Home Warranty provisions by virtue of the failure of "the applicant" to provide insurance. Damages were also claimed in the same expansive paragraphs for breach of statutory warranties, for breach of provisions of the Fair Trading Act in relation to misleading and deceptive conduct for false representation, for breach of statutory or implied warranty and damages, for failure to carry out the work in a proper and skilful manner using good and proper materials. One of the new allegations contended that the works performed had not complied with Australian Standards. 134 The rehearing took place on 29 May 2003 in the CTTT before Member GJ Durie. A full sound recorded transcript was taken and later tendered before Master Harrison. The CTTT dismissed the claims of the Company and ordered that Mr Italiano pay Mr Carbone $74,5000 on or before 23 July 2003.

[76]

Joinder as a party before the CTTT 140 It is convenient at this point to focus upon a principal basis put by counsel appearing for Mr Italiano as a reason for granting leave to appeal, for setting aside the decision of the Master and yet again remitting the proceedings for a third re-hearing before the CTTT. 141 Although put in a number of ways the gravamen of the proposition put by Mr Italiano is that he was never joined as a party to the proceedings before the CTTT [the contention being that this is confirmed by documents issued by the CTTT both before and subsequent to the hearing which describe the Claimant as the Company]. 142 The submission is that: · there is no evidence that Mr Italiano ever consented to being so joined and that no directions were given granting leave to file any amended cross-claim or new claim; · the only conceivable notice of the application could have been constituted by the service on 23 May 2003 of the proposed amended answer and amended cross-claim which it is said, had not yet been filed. [The covering letter effecting service was addressed "Attn Govanni Italiano, Italiano's Painting and Decorating Pty Ltd …"]; · the nearest formality to the lodging or filing of the amended pleadings was their proposed tender in the opening of Mr Carbone's case which occurred after the close of the Claimant's case [to which the tribunal member replied that there was no need to tender the documents]. 143 The initial submission to the effect that the amended cross claim was not elevated to the status of a lodged application within the meaning of the CTTT Act and that Mr Italiano never became a party to the action was put in the following terms: · "Section 24 of the Act prescribes how an application is made. It "must" be made in writing and in accordance with the regulations. The registrar "must" cause notice of the application to be given to each party within such time and in such manner as the chairperson directs. There is no evidence of any such direction by the chairperson. There is no evidence that the registrar caused the purported cross-claim to be given to the Claimant. There was only a copy provided to the third opponent, of an unsealed, unsigned, undated, unlodged purported cross-claim. · The purported cross-claim referred to the third opponent, rather than the Claimant, as "applicant". None of the purported amendments was underlined. There was no requirement do to do so, but it would have highlighted what was proposed. · Regulation 8(6) requires that an application "must" be signed and dated by the applicant (subject to an inapplicable exception). The application was not signed or dated. · Regulation 9 requires that an application made to the tribunal "must" contain the name and address of the applicant and the name and last known address of each other party. The purported cross-claim did neither. · Sub regulation 8(2) requires an application to be lodged. That term is not defined in the Act. It was purportedly tendered, but the tender was not accepted. (T106). It is submitted that simply delivering undated, unsigned documents to the registry did not have the effect of making the Claimant a party to the action. (Refer, for example Part 8 (8) Supreme Court Rules). Neither does it constitute lodgement: see Hong Ye v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 327. There was no statement during the hearing along the lines of "I grant leave the file in the tribunal…" What was purportedly lodged did not meet the definition of an application. · No order appears to have been made authorising proceedings to continue on the basis of the purported cross-claim being lodged. The power to join a party under regulation 28 was not exercised. · Regulation 46 requires that an application for the purposes of any proceedings "must" be served on each of the parties within a reasonable time before the return date endorsed on the application, by the registrar, or in accordance with a direction, another party. Taking those requirements in turn: a. The purported cross-claim, only having been forwarded shortly before the hearing date, was not endorsed with any return date. It is submitted that the purported cross-claim did not, at the time it was posted, have the quality of an application. Rather, it was a proposed amended answer and a proposed amended cross-claim.

[80]

"Even if the Board is bound in law to act "in the spirit and with the sense of responsibility of a tribunal whose duty is to mete out justice" (to quote Lord Haldane's words in Local Government Board v. Arlidge [1915 AC 120, at p 132) it does not follow (and his Lordship proceeded immediately to say so) that the procedure of each such tribunal must be the same: "what that procedure is to be in detail must depend on the nature of the tribunal " (1915) AC, at p 132. And notwithstanding what Lord Loreburn said in Board of Education v. Rice (1911) AC 179 about "always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view" (1911) AC, at p 182, the books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place . By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf. Ridge v. Baldwin [1963] 2 WLR 935, at p 947. As Tucker L.J. said in Russell v. Duke of Norfolk [1949] 1 All ER 109, in a passage approved by the Privy Council in University of Ceylon v. Fernando [1960] 1 All ER 631, at p 637, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: "the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth" (1949) 1 All ER, at p 118 . What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. And it is not a one-sided business." [emphasis added] 146 The CTT Act in section 28 exhibits a clear intent that the CTTT, subject to the Act, may determine its own procedures and is to act with as little formality as the circumstances of the case permit according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. As Lord Shaw observed in Local Government Board v Arlidge [1915] AC 120 at 138:

[87]

Did the failure to comply with section 48Q render the proceedings a nullity? 158 I agree with Basten JA that the statutory scheme should be understood to include both the Home Building Act and the CTTT Act. 159 I am in agreement with Basten JA in that: · the express terms of section 32(3) of the CTTT Act, requiring certain non-compliance to be treated as an irregularity, do not apply to section 48Q; · whether or not section 48Q has the effect that a failure to comply with this section by giving an express direction, renders the proceedings a nullity in relation to the person intended to be but not expressly joined depends upon questions of statutory construction: cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93]. 160 It is clear that "[t]he words 'equity, good conscience and the substantial merits of the case' are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found": Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 30 per Gleeson CJ and Handley JA [in turn citing Santos Ltd v Saunders (1988) 49 SASR 556 and 564]. 161 Provisions approximating that to be found in section 28 of the CTTT Act: "are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as appropriate to tribunals": Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gleeson CJ and McHugh J at 628. 162 Gleeson CJ and McHugh J went on to make the important observation that "[t]he extent to which [such provisions] free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases...". That is the situation which presently faces this Court in these proceedings. 163 These difficulties are amply demonstrated in the recent decision of the High Court delivered on 18 May 2005 in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24: cf the clear differences in approach by McHugh, Kirby and Hayne JJ, of the majority and by Gleeson CJ and Gummow J, who dissented. McHugh J (at [73]) made the point that the question was not easy to answer in relation to the section [s 424A of the Migration Act 1958 (Cth)] there under consideration [the object of which was to provide procedural fairness to an applicant before the Refugee Review Tribunal by alerting the applicant to material that the Tribunal considered to be adverse to the applicant's case and affording the applicant the opportunity to comment upon it]. The judgment points up that breach of a mandatory obligation may lead to invalidity of a resulting decision. 164 As already mentioned the additional integer concerns the fact that there is nothing in the Home Building Act which expressly denies the operation of the material provisions of section 28 of the CTTT Act. 165 There are a number of parameters which may be taken into account in terms of the purposive construction here required. These include: · the fact that the Home Building Act conferred on the CTTT a jurisdiction to order payment concerning building claims not exceeding $500,000; · the extremely high significance of the regular communication of the proposed joinder being made:

[88]

to the parties proposed to be joined in the proceedings. · the grave difficulties which may well arise in circumstances where it is contended that the CTTT was proceeding upon an unstated assumption that persons who had neither received from the CTTT notice in writing of their joinder nor an oral direction of such joinder are to be regarded as nonetheless joined to the proceedings. 166 It has been said that "it is a deep-rooted principle of law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard": Commissioner of Police v Tanos (1958) 98 CLR 383 at 395 per Dixon CJ and Webb J. The significance of the taking of the step joining a person into proceedings requires no emphasis. Whilst legislation may plainly be construed as eroding the need for even the oral making of an order for joinder, it is necessary for special caution before being in a position to reach any such construction. 167 Whilst it appears to be the case that of the other fifteen Acts which confer jurisdiction on the CTTT, the Home Building Act stands alone in terms of detailing the steps to be taken by the CTTT in joining non-parties to the proceedings before it, I approach the issue upon the basis that this is mere happenstance to which no particular significance should be attributed. [albeit that Credit Act 1984 in section 148 gives the CTTT power to join particular persons as parties to the proceedings it does not regulate the steps to be taken in any such joinder; cf to like effect the Retirement Villages Regulation 26 made pursuant to the Retirement Villages Act 1999]. 168 It is reasonable to infer that the legislature [doubtless guided in this respect by the draftsperson of the Home Building Act who must be taken to have been aware of the terms of section 26 (4) of the CTTT Act] was cognisant that section 26(4) [by dint of the classes of proceedings prescribed by the regulations] applied only to proceedings in which two or more persons had joint liability. The relatively small step then taken was in effect to include section 48Q into the Home Building Act in close to the identical language as had been used [but in respect of a joint liability environment] in section 26 (4) of the CTTT Act. 169 Nonetheless in my view the joinder of a person to CTTT proceedings constitutes such a critical procedural step that upon its proper construction section 48Q did impose an obligation to proceed in strict compliance with its terms. The decision of those in the majority in SAAP (supra) provides some assistance in support of the proposition that having regard to the language of the relevant provisions and the scope and object of the whole statute it is seen to be a purpose of the legislation that an act done in breach of section 48Q should be invalid. The section imposes an obligation to proceed in strict compliance with its terms. 170 The consequence is clear. The section 48Q requirement to join a party by notice in writing given to that person or by oral direction given during the proceedings being mandatory, failure to comply with that requirement meant that the CTTT did not discharge its statutory function. Using the words of McHugh J (at [77]) in SAAP "[t]here can be no 'partial compliance' with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not." 171 The conclusion which follows is that as Mr Italiano was not a party to the proceedings the CTTT acted ultra vires. 172 This conclusion follows notwithstanding the answer which I would have given to the question of whether or not that which was not done expressly was or should have been, well understood by those present at the CTTT hearing and participating in its proceedings. The issue concerns whether or not the manner in which Mr Durie proceeded to conduct the proceedings [in terms of an unstated assumption that the amended pleadings were before him and that Mr Italiano had been joined importantly as a respondent to the amended cross-claim] was shared with the parties.

[89]

173 In that regard a careful examination of the transcript and reasons for decision of 24 June 2003 satisfies me that the hearing was so conducted upon the above-described unstated assumption. The clear indicia that the hearing was so conducted include: · Mr Luna, described as a builder's advocate, accepted that he was appearing for Mr Italiano [transcript 2]; · the transcript records the proceedings as "Re: Giovanni Italiano v Domenic Carbone"; · both the amended answer and the amended cross-claim were adverted to in the cross examination of Mr Italiano, reference being made to the amended answer as having been filed in the proceedings [transcript 27]; · express reference was made to the amended answer and to the amended cross-claim (at [transcript 106]) where Mr Carbone sought to tender the documents but was informed by Mr Durie that there was no need to take this step; · in the reasons for decision Mr Durie (at [5]) stated that he had declined an adjournment application having reached the conclusion "that if Mr Italiano were not ready for the hearing, it was… because he was the 'author of his own misfortune". He further referred to there not having been any prejudice caused to Mr Italiano; · under cross-examination it was put to Mr Italiano [at transcript 91] that no stage had he made any mention of the involvement of his company; · the following reference was later made [at transcript 105] : "[W]e've finished your case, Mr Italiano"; · the cover page for the decision describes the Applicant as "Italiano's Painting and Decorating Pty Ltd and Giovanni Italiano"; and · the terms of the decision make plain that Member GJ Durie was well aware of the distinction between the company and Mr Italiano, adverting as he did to the issue as to whether the agreement was with the company rather than with Mr Italiano personally, considering the question of damages for which Mr Italiano was liable, dismissing the claim by the company and proceedings to make orders against Mr Italiano personally.

[90]

Procedural fairness - The adjournment application 174 Whilst the above conclusion renders it unnecessary to determine whether or not practical injustice has been shown in the particular circumstances, my own view in relation to this matter is that it raises an entirely disparate ground for holding that procedural fairness was denied to Mr Italiano. 175 The question which arises is as to whether an adjournment of the hearing ought to have been ordered in the particular circumstances which obtained, it being clear that "a refusal to grant an adjournment can constitute a failure to give a party…the opportunity of adequately presenting his case", Sullivan v Department of Transport (1978) 20 ALR 323 per Deane J; cf Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] cited by Basten JA. 176 Again one is thrown back to examining the extent to which the measure of natural justice that the Act requires to be given was complied with: cf Brodyn Pty Ltd t/a Time Cost and Quality v Davenport [2004] NSWCA 394 per Hodgson JA (at [54]). 177 I refer here to the extremely short time [three business days] between the date of service of the 23 May 2003 letter enclosing the amended answer and cross-claim and the 29 May 2003 rehearing. The radical new element, now for the very first time sought to be injected into the hearing, indeed required very careful consideration. Notwithstanding that this was not the basis for the adjournment application, it is plain enough from the transcript that Mr Luna sought to make clear that he was unaware that certain matters required to be proven on that occasion, having apparently been unaware that it would be necessary to again present a case under section 94 (1 A) of the Home Building Act. 178 One question which arises is whether or not the failure in the circumstances of Mr Italiano, through Mr Luna [who was not a legal practitioner], to seek an adjournment on this basis should have the effect that the matter should be regarded as foreclosed by that forensic decision. 179 In many circumstances the failure to ground an application for an adjournment on a substantive basis serves, particularly where a party was represented, to foreclose that party from re-agitating that issue in this Court: Kotowicz v Law Society of New South Wales, unreported, Court of Appeal, 11 December 1978, per Moffitt P at 3, [Hutley and Mahoney JJA agreeing]. 180 The issue concerns whether notwithstanding that no submission was addressed by reference to this particular matter, the circumstances demonstrate that the CTTT member ought himself to have taken a material consideration into account but failed to do so. The proposition is that the circumstances now raised an entirely new scenario where Mr Italiano was himself to be a respondent to the cross-claim. The proposition is that the proposed new joinder constituted a vital new issue requiring an informed approach to presentation of his case. There had been no leave granted to file the amended cross-claim. There had been no leave granted to file the amended answer. 181 The matter falling for consideration is whether it ought to have been clear to the CTTT member: · that in the absence of Mr Italiano's formal joinder into the proceedings by order, it was inappropriate to require that the hearing proceed on the day in question; and · that a principled exercise of his discretion to adjourn the proceedings required that the hearing date be vacated to permit Mr Italiano to properly prepare to litigate a case to which he was now joined as a party. 182 I agree with Basten JA that albeit the sparsity of the evidence, one may readily infer that there was some confusion in the mind of Mr Italiano as to his role in the proceedings. 183 In my view there seems little doubt that had an application been made on any occasion between receipt of the amended pleadings and the completion of the hearing before the CTTT for an adjournment grounded upon Mr Italiano needing to address the claim made against himself personally, it ought to have been granted. 184 Having closely considered this matter it seems to me that even had it been the case that section 48Q properly construed required to be regarded as a non-exhaustive power and not as imposing an obligation to proceed in strict compliance with its terms, nonetheless the discretion of the CTTT is seen to have miscarried for the reason that the application for the adjournment should have been granted. There were simply too many areas where failures to comply with the procedures laid down had taken place. Even had it been necessary to treat non-compliance with the sundry procedures laid down and earlier referred to as an irregularity, this would not address the procedural fairness parameter. Procedural fairness was denied to Mr Italiano where the CTTT failed to take into account the above-described matter of special significance on the application for the CTTT hearing to be adjourned. The new parameter injected by the new joinder of parties was a significant event itself entitling an adjournment. Had that been the basis for an application for an adjournment the interests of justice would have required that the hearing be adjourned.

Parties

Applicant/Plaintiff:

Italiano

Respondent/Defendant:

Carbone & Ors

Legislation Cited (17)

Australian Securities Commission Act 1989(Cth)

Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

Credit Act 1984(NSW)

Home Building Legislation Amendment Act 2001(NSW)

Suitors' Fund Act 1951(NSW)

Magistrate's Court Act 1989(Vic)

Administrative Appeals Tribunal Act 1975(Cth)

Anti-Discrimination Act 1977(NSW)

District Court Act 1973(NSW)

Fair Trading Act 1987(NSW)

Home Building Act 1989(NSW)

Interpretation Act 1987(NSW)

Magistrates' Court Act 1989(Vic)

Migration Act 1958(Cth)

Retirement Villages Act 1999(NSW)

Supreme Court Act 1970(NSW)

Supreme Court Rules 1970(NSW)

Cases Cited (31)

Italiano v Carbone & Ors [2005] NSWCA 177 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 Australian Postal Commission v Dao (No. 2) (1986) 6 NSWLR 497 Bayram v Benton (1994) 117 FLR 414 Board of Education v Rice (1911) AC 179 Boghossian v Warner [2000] NSWCA 27 Brodyn Pty Ltd t/a Time Cost and Quality v Davenport [2004] NSWCA 394 University of Ceylon v Fernando [1960] 1 All ER 631 Commissioner of Police v Tanos (1958) 98 CLR 383 Emhill Pty Ltd v Bonsoc Pty Ltd (2004) 50 ACSR 305 Gallo v Dawson (1990) 64 ALJR 458 Guss v Magistrates' Court at Victoria [2003] VSC 365 Harkness v Bell's Asbestos & Engineering Ltd [1967] 2 QB 729 Hodgkinson v Companies Auditors and Liquidators Disciplinary Board & ASC (1994) 50 FCR 504 Hong Ye v Minister for Immigration and Multicultural Affairs (1998) 153 ALR 327 Hope v Hope (1854) 4 De G.M. and G. 328 House v The King (1936) 55 CLR 499 Howship Holdings Pty Ltd v Leslie (No 2) (1996) 41 NSWLR 542 Hutley v Meigan (1997) ASC 56-370 Jackamarra v Krakouer (1998) 195 CLR 516 Ketrim Pty Ltd v AS&L Pty Ltd (2004) 52 ACSR 252 Kioa v West (1985) 159 CLR 550 Kotowicz v Law Society of New South Wales (unreported, Court of Appeal, 11 December 1978, Moffitt P) Local Government Board v Arlidge [1915] AC 120 CASES CITED: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Mobil Oil Australia Pty Ltd v the Federal Commissioner of Taxation (1963) 113 CLR 475 Moses v Parker; Ex parte Moses [1896] AC 245 Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2004] 1 Qd R 140 Plaintiff s157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Pino v Prosser [1967] VR 835 Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Prudential-Bache Securities (Australia) Ltd v Warner [1990] FCA 1143 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Ridge v Baldwin [1963] 2 WLR 935 Rust v Barnes (1980) 2 NSWLR 727 Russell v Duke of Norfolk [1949] 1 All ER 109 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Santos Ltd v Saunders (1988) 49 SASR 556 Sullivan v Department of Transport (1978) 20 ALR 323 Touma v Saparas [2000] NSWCA 11 Vickers v Mayne [unreported, Supreme Court of Western Australia, Full Court, Kennedy, Franklyn and Walsh JJ, 17 July 1998] Vilenius v Heinegar (1962) 36 ALJR 200