Italiano v Carbone & Ors

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."

The first limb of this submission appeared to be self-defeating. If he sought to escape the time limitation (which in fact appears not in s.67 itself, but in Part 51A of the Supreme Court Rules) because s.67 did not apply, then he had no basis for appeal pursuant to that provision. 43 The section, so far as relevant, provides: 67. Appeal against decision of tribunal with respect to matter of law 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.

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 … ."

On the other hand, as noted in Jackamarra v Krakouer (1998) 195 CLR 516, the assessment of such prospects are undertaken on a constrained basis: Brennan CJ and McHugh J at [3], referring to Lord Denning MR in R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091; see also Kirby J at [66], par 4. In the present case, the Master dealt with the grounds of appeal, not as being relevant to the exercise of the discretion to extend time, but in case she was wrong in not granting an extension. That approach is not necessarily in error; even though McHugh J in Gallo described such an inquiring as "always necessary" it may not always be a significant consideration. For example, in Gallo itself, his Honour also stated (p.459E, col 2): "A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved."

That case bears some similarities to the present, where, after an initial rebuff by his solicitors, the Claimant returned to them for further assistance, but was said to have concentrated his attention on dealing with the bankruptcy notice rather than with lodging an appeal against the decision of the Tribunal. 48 A third factor which may be relevant to such a question is the possible prejudice to the prospective respondent if an extension of time were granted. As McHugh J stated in Gallo (p.459G, col 1): "It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201."

Although it was not relied upon before us, nor referred to by the Master, the First Opponent in the present case took steps to enforce the order of the Tribunal, prior to any application for an extension of time within which to appeal, and no doubt incurred costs in so doing. 49 Returning to the prospects of success if an extension of time were granted, it may be noted that the grounds identified in the notice of appeal extended to some 18 paragraphs. Some, as already noted, were addressed to the question already considered, namely whether the Claimant had been made a party and was properly subjected to an order. Others involved complaints which appear not to have been raised before the Master. Others again did not clearly give rise to any matter of law on which the Tribunal had made a decision. These grounds need not be investigated further. The only substantial complaint which was articulated in this Court and which requires consideration is the proposition relating to procedural unfairness. The substance of that proposition is that the Claimant did not know, until he attended the Tribunal hearing, that the order for damages sought by the First Opponent was sought against him personally, rather than his alter ego, the Company.

(1) The service argument 50 Before turning to those matters, it is convenient to note an alternative basis upon which the Claimant put his case in this Court, namely that he was not out of time to appeal in any event. Part 51A, rule 3 of the Supreme Court Rules provides: "3(1) Subject to any provisions made by or under any Act, an appeal must be instituted within 28 days after the material date or within such extended time as the Court may fix."

The phrase "material date" is defined in rule 2, in relation to a body other than a court, as meaning "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". It appears to have been assumed by the parties that the Tribunal established by the CTTT Act was not a "court" for the purposes of this provision. (That assumption may be correct, but for some purposes tribunals have been held to constitute a "court": see, eg, Australian Postal Commission v Dao (No. 2) (1986) 6 NSWLR 497, 511-514 (Kirby P) and 515-516 (McHugh J).) 51 The precise time at which notice of the decision was given is not the source of contention in the present case: the issue raised by the Claimant is whether notice was ever given to the Claimant personally, for the purposes of Part 51A. A "notice of order" was addressed to the Claimant's company at his home address. He conceded that he received the notice, but contended that it was not given to him, but to the Company, which remained the named applicant on the Tribunal's files. There is no dispute but that the orders found in the notice identify the Claimant personally as the subject of an order to pay money to the First Opponent. 52 Section 49 of the CTTT relevantly provides:

"49 Notice of decisions and reasons (1) The Tribunal must, within the time prescribed by the regulations, give notice of its decision in a matter that is the subject of proceedings to the parties in the proceedings."

Section 78 of the Act provides for the manner by which notice may be given. Relevantly, it provides: "78 Notices, service and lodgement of documents (1) For the purposes of this Act, a notice … may be given to a person … : (a) in the case of a natural person - by (i) delivering it to the person personally, or (ii) leaving it at, or by sending it by post to, the residential or business address … of the person … ."

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."

An affidavit filed by his solicitor confirmed that the Claimant had attended at the solicitor's office in or about the first week of July 2003 and stated: "The [Claimant] was seeking advice from our firm as to whether or not there were any grounds for appealing the order of the Tribunal."

The inference to be drawn is that he was at that stage aware that an order had been made against him personally. 57 It is obviously correct to say that service on one person does not constitute service on another, where the latter has no knowledge of the document, no matter how close their connection in social or practical terms. Nevertheless, where a document is served on a company, which can only take note of the document through the act and apprehension of an individual agent, there is a certain artificiality in saying that the agent, who thus becomes aware of the existence of the document and its relevance to himself has not relevantly been "given" the notice. In substance, the question is whether the statutory provisions, despite their facultative terminology, provide an exhaustive statement of the mechanisms by which a notice can be given. 58 A similar issue was addressed by McInerney J in the Supreme Court of Victoria in Pino v Prosser [1967] VR 835. The case involved service of a writ, requiring personal service on the husband, by handing a copy to his wife, who handed it to him on the same evening. When, two days later, the process server returned to the house to recover the writ so as to effect personal service on the husband, he was told by the wife that her husband was not at home and had taken the writ to his solicitor. McInerney J noted authority for the proposition that "service on the wife, or a known agent of the defendant is not good service": Ibid at 837 (30). His Honour continued: "If that passage correctly states the law, the conclusion is, on the facts of this case, remarkable to the point of seeming absurdity, in that the defendant who, on his own affidavit admits that he received the writ on 28 March from his wife and instructed his solicitors on 10 April, should be held not to have been served."

His Honour referred to a comment by the Lord Chancellor in Hope v Hope (1854) 4 De G.M. and G. 328 at 342 to the following effect: "The object of all service is of course only to give notice to the party to whom it is made, so that he may be aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the court may feel perfectly confident that service has reached him, every has been done that is required."

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.

(2) The joinder issue: statutory non-compliance 63 The primary ground agitated by the Claimant in these proceedings was that the Tribunal had failed to join him in the proceedings commenced by the Company. Although he relied upon statutory provisions contained in the CTTT Act, he also invoked, during the course of the hearing, s.48Q of the Home Building Act. At the time of the hearing, judgment was reserved in the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24. That judgment, delivered on 18 May 2005, gives support to the contention that, in particular circumstances, breach of a mandatory statutory procedure may lead to invalidity of any resulting decision. The present statutory context is different in significant respects from the Migration Act 1958 (Cth) which was considered in that case. Nevertheless, the principles to be derived from SAAP must be applied by this Court. In my view, the statutory scheme does not make mandatory any particular obligation with respect to joinder, although other aspects of the scheme do impose mandatory requirements on the Tribunal. 64 Dealing first with the question of joinder, the only express provision permitting the Tribunal to join a person as a party in proceedings before it is that found in s.26 of the CTTT Act. Subsection (4) of that provision provides: "(4) If at any time the Tribunal is of the opinion that a person should be joined as a party in proceedings to which this section applies, the Tribunal may, by notice in writing given to the person or by oral direction during the proceedings, join the person as a party in the proceedings."

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."

This provision partly reflects the language of s.81(1) of the Supreme Court Act 1970 (NSW). The effect of the provision is to save proceedings from being treated as a nullity because a step required by the Act or regulations has not been taken. Although the provision is expressed to apply to any provision of "the Act or the regulations", a question arises as to whether it extends to remove the consequence of a breach of such provisions as might form part of the essential elements of procedural fairness and as to whether it extends to any implied obligations of procedural fairness. 68 Before turning to answer those questions, it is convenient to note the terms of s.28, the relevant parts of which read as follows: "28. Procedure of Tribunal generally (1) The Tribunal may, subject to this Act, determine its own procedure.

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

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

(4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand: (a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings. (5) The Tribunal: (a) is to act as expeditiously as is practicable, …" 69 Although s.28(2) appears to envisage that the general law rules of procedural fairness will have application, in some specific instances the CTTT Act makes express provision in that regard. Thus, s.35 is in the following terms: "35. Opportunity for parties to present case The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity:

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

(b) to make submissions in relation to the issues in the proceedings."

A party before the Tribunal is not entitled to be represented by any person, except with leave of the Tribunal: s.36. 70 Provisions similar to s.28(3) are not uncommon in statutory schemes establishing tribunals. A similar provision, then found in s.108(1)(b) of the Anti-Discrimination Act 1977 (NSW), was considered by this Court in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26. The joint judgment of Gleeson CJ and Handley JA noted (at 29F): "The precise effect of this section is not immediately clear. Section 118(1) provides that a party aggrieved by a decision of the tribunal may appeal to the Supreme Court on a question of law and subs. (3) provides that the Court shall hear and determine the question of law arising on the appeal and may make such order in relation to the appeal as to it seems fit. It is apparent therefore that s.108(1)(b) does not release the tribunal from the obligation to apply rules of law in arriving at its decisions. If that had been the effect of s.108(1)(c) (sic) there would have been no point in conferring a right of appeal to the Supreme Court on a question of law. The apparently conflicting provisions must, as a matter of construction, be reconciled … ."

A similar question was considered in relation to s.420 of the Migration Act in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49]. After referring to Qantas Airways Ltd v Gubbins , Gleeson CJ and McHugh J stated of such provisions: "They 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 inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question."

The High Court held that such a provision did not give rise to an obligation, breach of which might constitute a failure to comply with a procedure prescribed by the Act. Consistently with that view, no attempt was made in the present case to construct any obligation on the part of the Tribunal from the terms of s.28(3). However, the difficulty is to reconcile specific requirements of the statute with provisions such as ss.28(3) and 32(3) of the CTTT Act. 71 The Claimant sought to evade the operation of s.32(3) by reliance upon s.48Q of the Home Building Act, being part of a scheme with respect to building claims introduced into the Home Building Act by the Home Building Legislation Amendment Act 2001 (NSW) which commenced on 1 January 2002. Non-compliance with that provision, he argued, was not excused as a mere irregularity, because s.32(3) applied only with respect to non-compliance with the CTTT Act and the regulations under it. 72 Section 48Q of the Home Building Act relevantly provides: "48Q Power to join persons as parties to proceedings

If, at any time before or during proceedings before it in relation to a building claim, the Tribunal is of the opinion that a person should be joined as a party to the proceedings, the Tribunal may, by notice in writing given to the person or by oral direction given during proceedings, join the person as a party to the proceedings."

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'."

This approach is consistent with a purposive construction, as required by s.33 of the Interpretation Act 1987 (NSW). 76 For present purposes, the statutory scheme should be understood to include both the Home Building Act and the CTTT Act. Because the Home Building Act conferred on the CTTT a jurisdiction to order payment of significant sums, it is arguable that a stricter approach to procedural steps may be expected within the terms of the Home Building Act. On the other hand, there is nothing in the Home Building Act which expressly denies the operation of those provisions of s.28 of the CTTT Act which have been set out above. Section 28(3) can have a variable operation, as explained in Qantas Airways Ltd v Gubbins. As noted in the joint judgment referred to above (at p.30E) in relation to the words "equity, good conscience and the substantial merits of the case": "In some circumstances the presence of this language may indicate that the decision-maker is free from any obligation to apply rules of law so that any decision will be executive rather than judicial and not subject to appeal even if that is otherwise available: see Moses v Parker; Ex parte Moses [1896] AC 245."

That is not this case, but the existence of such a provision renders it unlikely that a procedural step which can, in any event, be fulfilled by way of an oral direction without further formalities, should be treated as giving rise to an obligation, non-compliance with which results in invalidity, in circumstances where that which was not done expressly was, or should have been, well understood by those present at the Tribunal hearing and participating in its proceedings. 77 In these circumstances, s.48Q should not be understood as imposing an obligation to proceed in strict compliance with its terms, but rather as a non-exhaustive power. Accordingly, that aspect of the argument sought to be raised by the Claimant in the present proceedings should not succeed. 78 In these circumstances, it is unnecessary to consider whether the provision to the Claimant of the cross-claim seeking his joinder in paragraph 1, could appropriately have been treated as a fresh application. 79 The conclusion that the failure to make an express order joining the Claimant did not invalidate the decision does not exhaust the relevance of the factual concern. The failure to make such an order had broader consequences for the compliance by the Tribunal with its statutory mandate. Thus, it gives rise to separate questions as to whether the proceedings were procedurally unfair and, separately, whether there was a breach of other mandatory statutory requirements. These matters will be addressed below, in that order.

(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."

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."

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."

The "answer" to which the Tribunal referred was apparently filed on 5 February 2002. The Tribunal continued: "That document, the answer, would have been served upon Mr Italiano or his company some considerable time ago, so it's always been the position in this matter that proof of the matters necessary to obtain the indulgence under s.94 of the Home Building Act has to be a necessary part of the tradesperson's claim. That has not been done. The applicant says that he is not in a position now to proceed and prove that. The second matter I wish to refer to is that directions were given by the tribunal at a hearing on 22 April this year which required the applicant to provide a copy of an amended claim for payment based on the quantum meruit by 2 May and by 14 May the applicant was to provide further documents. There seems to be a typographical error in the transcription of the Member's order but it clear that there has been compliance with neither of those orders. … There has been no amended claim filed in accordance with the direction of the tribunal and I am told that none of the documents referred to in the second of those directions has been produced to the respondent.'

In substance, the Tribunal found that the applicant was "the author of its own misfortune in the failure to comply with directions" and therefore "had to bear the consequences of its own failure". 102 No doubt, as the Master recognised, a refusal to grant an adjournment may give rise to procedural unfairness. In Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40], Gaudron and Gummow JJ said: "Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness."

The relevant question is what test a court exercising supervisory jurisdiction should apply in considering whether the request was "reasonable". In Touma v Saparas [2000] NSWCA 11, this Court applied the principles in House v The King (1936) 55 CLR 499 in determining whether a District Court judge had erred in refusing an adjournment, so as to render the trial before him procedurally unfair: at [27]. The minimum requirement of fairness, consistent with a legal exercise of power, will depend not only on the circumstances of the case, but also upon the statutory regime. The fact that the provisions of the CTTT Act referred to above permit the Tribunal a considerable area of discretion in moulding its own procedures suggests that the bounds of legality may need to be expanded beyond those which might apply in other circumstances. Indeed, it is well understood that the requirements of natural justice may need to be modified from time to time "to meet the particular exigencies of the case": see Kioa v West (1985) 159 CLR 550 at 615, per Brennan J. 103 On the face of it, the Tribunal based its refusal on relevant considerations, arising from the history of the proceedings. The Court's attention was not directed to any significant matter demonstrating that the Tribunal's exercise of discretion in refusing the adjournment resulted in procedural unfairness. As that was the only material basis upon which the proceedings before the Tribunal were challenged, relevantly for present purposes, that challenge must fail.

(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."

His Honour then referred to provisions in the Administrative Appeals Tribunal Act (s.33(1)(b)) equivalent to s.28(3) of the CTTT Act. His Honour concluded, at p.343 (10): "A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment … that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a Tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506. In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled."

(See also the comments by Smithers J at 331 in relation to the essentiality, for the appellant, of the evidence of Dr Evans. See also the application of these principles in Bayram v Benton (1994) 117 FLR 414 (Kearney J).) 108 In Hodgkinson v Companies Auditors and Liquidators Disciplinary Board (1994) 50 FCR 504, Drummond J considered the requirements of procedural fairness, again in a context where the statutory scheme establishing the Board, included s.216 of the Australian Securities Commission Act 1989 (Cth) which was in similar terms to ss.28(2) and (3) of the CTTT Act. It was suggested that Mr Hodgkinson was confused as to whether the case he was required to meet was limited to matters concerning a particular company, or whether the matters extended to the company's subsidiaries. If he were confused, it was submitted that the Board failed in its duty to ensure that he understood "the critical issue in the hearing" and further that the confusion should have been apparent to the Board. In stating the relevant principles, Drummond J held at 507F: "If, in a case such as that to which I have referred, a tribunal realises or ought reasonably to realise that the respondent is labouring under a bona fide error as to the scope of the issues being investigated, then in my view there will be a want of natural justice if a tribunal proceeds with the hearing without clearly informing the respondent of his error and giving him such time as may reasonably be necessary to marshal his answering case to the charge actually before the tribunal. Whether the person in question is or is not legally represented is, of course, a very relevant matter for the tribunal to take in to account when it has to form a view as to whether the person may be labouring under such an error."

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."

By contrast, the proceedings in the present case are closer to a judicial model than an inquisitorial model and do, in one sense, involve the trial of issues between parties. On the other hand, representation before the Tribunal is subject to leave and the Tribunal has a broad power to inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness: s.28(2). Accordingly, the present case falls somewhere between the two kinds of procedure identified by Hayne J in SAAP . 115 Secondly, the statutory structure being considered in SAAP was different in a number of respects from that under which the Tribunal operated in the present case. On the one hand, there was a privative clause in the Migration Act, although one which did not preclude a challenge to a decision which was infected by jurisdictional error. On the other hand, the Refugee Review Tribunal did not have a provision in its governing procedures which suggested that failure to comply with requirements of the Migration Act should be treated as an irregularity, rather than a nullity: c.f. s.32(3) of the CTTT Act. Nevertheless, as noted above, a reconciliation of s.32(3) with the specific provisions, phrased in mandatory terms, in relation to the procedure of the Tribunal, do not suggest that Parliament intended that breach of those provisions should be treated as mere irregularities, when their purpose was to reflect basic principles of procedural fairness: c.f. Plaintiff S157 v Commonwealth (2003) 211 CLR 476. In my view, the approach taken by the majority in SAAP should be applied in the present statutory context, with the result that the breaches of the statutory provisions identified above should be treated as invalidating the conclusion of the Tribunal.

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:

(1) Grant leave to the Claimant to amend the summons and to file the amended notice of appeal in this Court. (2) Grant the Claimant an extension of time within which to appeal from the judgment of the Master in the Common Law Division. (3) Allow the appeal to this Court and set aside the judgment and orders of the Master. (4) In lieu of the orders of the Master: (a) order that the decision of the Consumer Trader and Tenancy Tribunal dated 26 June 2003 in proceedings No HB 03/14211 be set aside; and (b) order that the matter be remitted to the Consumer Trader and Tenancy Tribunal to be heard and determined according to law. 120 There remains a question as to the costs of these proceedings. While the Claimant has been successful in this Court, the point on which he succeeded was not presented in those terms to the Master. In my view, the proper order for costs in relation to the proceedings in the Common Law Division is that each party should bear its or their own costs. In this Court, the Claimant has been successful in challenging the validity of the decision of the Tribunal, but on a basis which was not in substance raised until the hearing in this Court. An appropriate order is that the Claimant have 50% of his costs in this Court. Having set aside the orders of the Master, the only further order required is as follows:

(5) Order that the First Opponent pay one-half of the Claimant's costs of the appeal in this Court. 121 EINSTEIN J: There is before the court an amended summons for leave to appeal from a decision of Master Harrison given on 2 July 2004 being heard concurrently with the appeal. 122 The proceedings raise questions concerning the legislation and procedures laid down by the Consumer, Trader and Tenancy Tribunal Act 2001 ["the CTTT Act"]. 123 The Claimant/Plaintiff below, Mr Giovani Italiano, had sought: · an order extending the time for the commencement of his appeal from orders made by the Consumer, Trading and Tenancy Tribunal ["CTTT"] on 26 June 2003; · a grant of leave to commence the proceedings in the Supreme Court; · an order setting aside the decision of the CTTT; and · an order remitting the proceedings for hearing to the CTTT. 124 Master Harrison refused the application for leave to appeal, dismissed the appeal, affirmed the orders of the CTTT and ordered Mr Italiano to pay the defendant's costs as agreed or taxed. 125 As explained in the reasons for judgment given by Basten JA, Mr Italiano during the hearing before this Court was granted leave to reformulate his application for relief by seeking an order in the nature of certiori quashing the decision of the CTTT. 126 The proceedings before the CTTT related to painting services carried out pursuant to an agreement entered into with the First Opponent/First Defendant below, Mr Carbone. An issue concerns whether the other party to that agreement was Mr Italiano or the Third Opponent/Third Defendant below, Italiano's Painting and Decorating Pty Ltd, a company of which Mr Italiano was the sole director ["the Company"]. 127 The Second Opponent/Second Defendant below is the CTTT.

The first CTTT proceedings 128 The first proceedings before the CTTT commenced on 16 November 2001. It is material to note that in early February 2002 Mr Carbone filed an answer and a cross-claim against the company, there being no then allegation that the other party to the agreement had been Mr Italiano. 129 The first proceedings were heard and determined in favour of the company on 21 February 2003. That claim was upheld on a quantum meruit basis in the absence of any appearance by Mr Carbone. 130 A rehearing was ordered following an application to set aside the decision in circumstances concerning Mr Carbone not having received the Notice of Hearing.

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.

Service of notice of the decision 135 The Notice of Orders was served upon the company and this Notice was entitled "Application to the Tribunal concerning Italiano's Painting and Decorating Pty Ltd and Domenic Carbone". The CTTT Act [section 49(1)] required that the CTTT "give notice of its decision". An issue raised concerns whether this requirement was satisfied in relation to such notice being given to Mr Italiano.

The material provisions of the CTTT Act 136 The CTTT Act came into force on 25 February 2002. Basten JA has identified the material savings and transitional provisions which dealt with pending proceedings. 137 The CTTT Act provides inter alia as follows:

3. Objects of Act The objects of this Act are as follows:

(a) to establish a Consumer, Trader and Tenancy Tribunal to determine disputes in relation to matters over which it has jurisdiction, (b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair, (c) to enable proceedings to be determined in an informal, expeditious and inexpensive manner. … 5 Establishment of Consumer, Trader and Tenancy Tribunal (1) A Consumer, Trader and Tenancy Tribunal of New South Wales is established by this Act.

(2) The Tribunal has and may exercise such functions as are conferred or imposed on it by or under any Act. The following Acts confer jurisdiction on the Tribunal: Community Land Management Act 1989 Consumer Claims Act 1998 Consumer Credit Administration Act 1995 Consumer Credit (New South Wales) Act 1995 Credit Act 1984 Credit (Home Finance Contracts) Act 1984 Fair Trading Act 1987 Holiday Parks (Long-term Casual Occupation) Act 2002 Home Building Act 1989 Motor Dealers Act 1974 Motor Vehicle Repairs Act 1980 Residential Parks Act 1998 Residential Tenancies Act 1987 Retirement Villages Act 1999 Strata Schemes Management Act 1996 Travel Agents Act 1986 21 General statement of jurisdiction (1) The Tribunal has such jurisdiction to decide matters, and such powers to make orders and otherwise exercise any function in connection with any such decisions, as is conferred on it by this or any other Act. … 24 Application to Tribunal (1) A person ( the applicant ) may, in accordance with the Act under which the application is made, apply to the Tribunal to have a matter dealt with by the Tribunal.

(2) Despite the provisions of any other Act, an application to have a matter dealt with by the Tribunal must be made: (a) in writing (or in such other form as may be prescribed by the regulations), and (b) in accordance with the regulations. (3) The Registrar must cause notice of an application to the Tribunal to be given to each party (other than the applicant) in the proceedings within such time and in such manner as the Chairperson directs.

(4) It is sufficient compliance with subsection (3) if: (a) the Registrar directs a party in the proceedings to serve notice of the application on another party on the Registrar's behalf, and (b) notice is served on the other party in accordance with the Chairperson's directions referred to in subsection (3).

25 Notice of proceedings (1) If any proceedings are to be determined by a hearing, the Registrar must cause notice of the time and place that is fixed for the hearing to be given to each party in the proceedings.

(2) If a party who has been notified under subsection (1) fails to attend at the time and place notified, the proceedings may be held in the absence of the part ….

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

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

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

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

(5) The Tribunal: (a) is to act as expeditiously as is practicable, and (b) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument. … 32 Amendments and irregularities (1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice.

(2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Tribunal thinks fit, but may only be made after notifying the party to whom the amendment relates.

(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.

(4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings. 35 Opportunity for parties to present case The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity:

(a) to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise), and (b) to make submissions in relation to the issues in the proceedings. … 49 Notice of decisions and reasons (1) The Tribunal must, within the time prescribed by the regulations, give notice of its decision in a matter that is the subject of proceedings to the parties in the proceedings. The notice must indicate that any party may, within 14 days of receiving notice of the decision, request the Tribunal to provide a statement of reasons for its decision.

(2) Any party may, within 14 days of receiving notice of the decision, request the Tribunal, in the manner prescribed by the regulations, to provide a statement of reasons for its decision. The statement must be provided within 7 days after the request is made.

(3) The statement may be brief but must: (a) set out the decision and the reasons for it, and (b) set out the findings on any material question of fact, and (c) refer to the evidence or any other material on which the findings of fact were based. … 65 Review by prerogative writ etc generally excluded (1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of: (a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or (b) a declaratory judgment or order, or (c) an injunction,

in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter.

(2) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the jurisdiction of the Tribunal to determine the matter was disputed if the ground on which the relief or remedy is sought is that: (a) the Tribunal gave an erroneous ruling as to its jurisdiction, or (b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed. (3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that: (a) the Tribunal had no jurisdiction to make the order, or (b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness. … 67 Appeal against decision of Tribunal with respect to matter of law (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.

(3) After deciding the question the subject of such an appeal, the Supreme Court may, unless it affirms the decision of the Tribunal on the question: (a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or (b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal.

The Regulations 138 The judgment of Basten JA details the Consumer Trader and Tenancy Tribunal Regulations 2002 material for present purposes. Clause 28 Importantly treats with "Joinder of parties" in the following terms:

"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 but 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."

The Home Building Act 1989 139 Basten JA has outlined the Home Building Act and the manner of its introduction. Section 48Q provided as follows:

"Power to join persons as parties to proceedings If, at any time before or during proceedings before it in relation to a building claim, the Tribunal is of the opinion that a person should be joined as a party to the proceedings, the Tribunal may, by notice in writing given to the person or by oral direction given during proceedings, join the person as a party to the proceedings."

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.

b. The purported cross-claim was not "served" upon the Claimant, as service would only relate to either a formal document which has been lodged or an informal document which has been directed to be served pursuant to a direction of the CTTT. Whilst the informal document was seen by the Claimant, (although he did not read it) that does not equate to him being served, within the meaning of regulation 46: service of a bankruptcy notice which has not issued from the office of the Official Receiver, is not service of a bankruptcy notice: see Prudential-Bache Securities (Australia) Ltd v Warner, unreported, FCA, 13 August 1999 per Emmett J. [1999] FCA 1143.

c. Whether there was service or not of the proposed claim, receipt of that document was not within a reasonable time. It is noted that under section 30, the issue of a summons merely for the production of documents requires not later than five working days for service. In this matter, purported service against a new party was two days before the hearing date." 144 During the hearing before this Court counsel for Mr Italiano sought to rely upon section 48Q of the Home Building Act contending that a failure to comply with this section [in circumstances where no express direction/order has been made], must have the necessary result that the proceedings are a nullity in relation to a person intended to be so joined.

The measure of natural justice which the Act requires to be observed 145 These submissions raise the question of the measure of natural justice which the Act requires to be observed by the CTTT. Clearly enough the critical parameter in terms of procedures required to be followed can only be discerned from the express and implied provisions of the Act. The proper approach was put in the following terms by Kitto AJ in Mobil Oil Australia Pty Ltd v the Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504:

"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:

"[T]he assumption that the methods of natural justice are ex necessitate those of courts of justice is wholly unfounded." 147 However there are some aspects of the procedures which require to be seen to have been observed, preferably formally. The record does require a clear identification of the parties. There must be no doubt as to the identity of the applicant. There must be no doubt as to the identity of the respondent. Notice of an application requires to be served on the respondent. Where a party applies for an amendment to an application, appropriate notice requires to first be given to the respondent and the application to amend amendment requires thereafter to be considered and if granted, should be made by order of the CTTT. Whilst a considerable degree of informality is clearly permissible [cf section 43 (3)], the above described procedures centrally go to the record and are basic to the fundamental requirement entitling each party to be aware of the identity of the parties and of the nature of the case made against them. 148 Where as here, a complaint amounts to a denial of procedural fairness, the Court is not dealing with fairness as an abstract concept. As was put by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam [2003] 214 CLR 1 (at [37]):

"[Fairness] is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 149 In some cases the manner in which the parties and the CTTT conduct proceedings may show that albeit that some procedures are not formally observed, the parties by their conduct may be taken to have implicitly accepted that further compliance with suggested formalities was otherwise waived. The real question concerns whether any and if so which procedural step requires to be strictly observed in the absence of which the proceedings are a nullity.

The cross-claim issues 150 The cross-claim questions which have been raised for consideration include: · whether a cross-claim might be filed before the CTTT against an applicant and if so what the procedures to permit a cross-claim were or could legitimately have embraced; · whether a cross-claim might be filed against a person not being the applicant and if so what the procedures to permit such a cross-claim were or could legitimately have embraced. 151 It may be noted that although only coming into effect after the determination of the current proceedings, the CTTT "Chairperson's Directions in respect of Home Building Division Claims or Disputes in excess of $25,000" effective from 1 August 2003, require that where a respondent wishes to seek orders against the applicant, the respondent must lodge a separate application to be called a "cross-application". The directions then provide that applications and cross-applications will be heard and determined together unless circumstances preclude such a course of action. 152 In truth cross-claims are simply applications of a certain type. Notwithstanding that the Consumer, Trader and Tenancy Tribunal Regulation 2002 stipulated only for the manner of lodgment of "Applications" to the CTTT, at the material time there was no statutory or regulatory inhibition disentitling the CTTT from allowing cross-applications [whether so described or described as cross-claims] by a respondent. The regulations promulgated at the time prescribed the requisite fees payable in respect of applications which would have been apposite also to cross applications/cross claims.

Notification of amendments 153 Section 32 of the Act clearly empowered the CTTT to make any amendments to any document filed in connection with the proceedings which was considered to be necessary in the interests of justice and to do so at any stage of the proceedings, but only after notification to the party to whom the amendment related.

Shortcomings of the proceedings 154 It is apparent that in terms of the above requirements, the proceedings before the CTTT exhibited considerable shortcomings. The delivery of the undated and unsigned cross-claim to the registry could not itself have had the effect of making Mr Italiano a party to the proceedings. Neither the amended answer nor the amended cross-claim were served upon Mr Italiano. Albeit that he was a director of the Company upon which the documents were served, he ought to have been personally served in his own right. The application to amend does not appear to have been formally considered, if indeed considered at all. The record appears to suggest that Mr Durie simply proceeded to conduct the proceedings upon the unstated assumption that the amended answer and the amended cross-claim were before him and that Mr Italiano had been joined both as an additional applicant, and as a respondent to the amended cross-claim. There was no order allowing these amendments, nor allowing joinder. 155 There is a form which is the usual form for applications in the form of the application made by the Company in these proceedings. The amended cross-claim was not in that form and did not approximate that form. It appears that the reason why the procedure at the CTTT was for a cross-claim to proceed by way of a separate claim, which would then be heard with the original claim, was that the CTTT collected application fees in relation to each claim. There was no provision for an application fee in relation to a cross-claim in regulation 10. 156 There is substance in the proposition that had Mr Carbone commenced fresh proceedings it would have been quite clear that they were brought against Mr Italiano and there would likely have been separate directions issued for both sets of proceedings to be heard together. 157 As counsel for Mr Italiano submitted:

"[t]he proper order of events should be that a signed and dated application (regulations 8 and 9) containing appropriate names and addresses (regulation 9) is to be lodged with the tribunal (section 24) and application fees paid (regulation 10). The registrar then must cause notice of the application to be given to each party (section 24, regulation 46, regulation 9(2)) and, if proceedings are to be determined by hearing, the registrar must then cause, or direct another party to give, notice of the time and place to be given to each party in the proceedings (section 25). If there is to be a joinder, regulation 28 applies. The tribunal is to ensure that the Claimant understood the nature of the proceedings (section 28(4))."

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:

• 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.

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.

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.

Orders 185 The appropriate course is to make the following orders:

(1) Grant leave to the Claimant to amend the pleadings so as to reflect the proposed amendments to the draft notice of appeal and to file the amended notice of appeal;

(2) Order that the time for the filing of the amended summons be extended to 14 days after the date of handing down of the judgment;

(5) Set aside the judgment and orders of the Master made on 2 July 2004;

(6) In lieu of the orders of the Master: (a) Order that the decision of tribunal member Durie and the Consumer Trader and Tenancy Tribunal dated 26 June 2003 in proceedings No. HB 03/14211 be set aside;

(b) Order that the proceedings No. HB/14211 be remitted to the Consumer Trader and Tenancy Tribunal to be determined according to law.

Costs 186 The appropriate course is to make the following costs orders: (1) Order that the first Opponent pay the Claimant's costs of the appeal in this Court and to have a certificate under the Suitors Fund Act if otherwise qualified;

(2) Order setting aside the costs orders of the Master and in lieu thereof order that the First Opponent pay the Claimant's costs in relation to the proceedings in the Common Law Division and to have a certificate under the Suitors Fund Act if otherwise qualified.

16/08/2005 - Typographical error - Paragraph(s) 171

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