John Peter Maiolo v Frank Chiarelli and Anor

Is leave required?

1. The appellant addressed the Appeal Panel on this ground of appeal first. He submitted that a denial of natural justice, if established, constitutes an error of law for which no leave is required.
2. The appellant's submissions which accompanied his Notice of Appeal and the submissions filed in the Tribunal on 21 January 2016 do not specifically address this ground of appeal.
3. In connection with the ground of appeal that the Tribunal's decision was against the weight of evidence, the Appellant stated in his Notice of Appeal under item 6Bii: 'The appellant advised the Tribunal that he had filed a folder of evidence on 15 September 2015 and that he had the folder with him for the Member to consider but the Member declined to consider the folder of evidence and/or give proper and due regard and weight to it and proceeded to make his determination on the Respondents' evidence only.'
4. In submissions before the Appeal Panel the appellant relied on this material as being the substance of the ground of appeal that he was denied natural justice on the renewal application heard by the Senior Member on 12 October 2015.
5. The Appeal Panel accepted the following evidence in connection with this ground of appeal. First, a folder titled 'Respondent's Evidence for Hearing as per Orders made 31 August 2015. Secondly, a statement dated 20 January 2016.
6. At the hearing before us, the respondents agreed that the folder was provided to them before the hearing on 12 October 2015 and also as part of the material that the appellant intended to rely upon in the Appeal, although it was not filed with the appellant's appeal documents.
7. The statement dated 20 January 2016 was filed in the Appeal proceedings and served on the respondents. We only allowed paragraphs 1 and 10 to be tendered having ruled that the balance of the statement was either irrelevant or more akin to a submission.
8. Relevantly, paragraph 10 states: 'During the hearing before member Meadows he did not have before him the folder of statements and documents which I had filed and served. I asked the learned member whether I could give him my copy of the folder containing the documents in question to have regard to but he declined my offer and did not have regard to those materials. I do not, with respect believe, that I got a fair and unbiased hearing from the learned member.'
9. The respondents were given the opportunity at the call over held on 26 November 2015 to file with the Tribunal and provide the appellant with all evidence provided to the Tribunal below on which they intended to rely, any fresh evidence on which they intended to rely and their written submissions in opposition to the Appeal. The respondents only filed written submissions which do not address paragraph 10 of the appellant's statement dated 20 January 2016. Although at the hearing the respondents declined to concede the facts referred to in paragraph 10 of the appellant's statement dated 20 January 2016, they have not filed any evidence which challenges those facts. The content of paragraph 10 therefore stands un-contradicted.
10. The only authority to which we have been referred in connection with the denial of natural justice ground of appeal was Stead v State Government Insurance Commission (1986) 161 CLR 141.
11. In Ayoub v CPT Corp Pty Ltd [2015] NSWCATAP 259 the Appeal Panel stated at paragraph 19: 'A failure to afford procedural fairness raises a question of law: Italiano v Carbone (2005) NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 at [8]. Section 38 of sub-sec 2 of the Act provides that whilst the Tribunal is not bound by the rules of evidence it nevertheless is subject to the rules of natural justice and ss 38(5) and (6) of the Act also embody aspects of procedural fairness. Of particular relevance is paragraph 38(5)(c) which provides that the Tribunal must take such measures as are reasonably practicable "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceeding". Accordingly, leave to appeal was not required'
12. See also John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at paragraph 17.
13. The passage cited above is sufficient authority for us to hold that the appellant's ground of appeal based on a failure to afford procedural fairness raises a question of law and that leave to appeal is not required.

Was there a denial of natural justice?

1. The factual background to this ground of appeal is that: 1. The respondents filed a 'Notice To Renew Proceedings' in the Tribunal on 10 August 2015. 2. On 31 August 2015, the Tribunal made orders which, inter alia, required the appellant to provide to the respondents and the Tribunal a copy of all documents on which he intended to rely at the hearing by 14 September 2015. 3. The appellant filed a copy of his documents in the Tribunal on 15 September 2015. 4. At the hearing on 12 October 2015 the Tribunal Member did not have the appellant's folder of documents, filed one day late in accordance with the orders made on 31 August 2015; 5. At the hearing on 12 October 2015 the appellant asked the Tribunal member whether he could hand up a copy of the folder of documents that he had filed, but the Tribunal Member declined the offer and determined the respondents' Renewal Application without the benefit of those documents.
2. As pointed out by the Appeal Panel in Ayoub v CPT Corp Pty Ltd the Civil and Administrative Tribunal Act Act requires the Tribunal to allow parties natural justice. Section 38(2) states: '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 natural justice'
3. Importantly, section 38(5) of the Civil and Administrative Tribunal Act as emphasized by the Appeal Panel in Ayoub v CPT Corp Pty Ltd provides: 'The Tribunal is to take such measures as are reasonably practicable: (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.'
4. On the facts available to us, which have not been disputed by the respondents, it is our opinion that the Tribunal Member by his refusal to consider the appellant's folder of documents which the appellant sought to hand up on 12 October 2015 deprived the appellant of the opportunity to have his evidence considered and also his opportunity to make submissions based on that evidence in the Renewal Application.
5. In Italiano v Carbone & Ors [2005] NSWCA 177 at paragraph 88, Basten JA stated : '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]'
6. Having regard to the passage quoted above we are of the view that the appellant was denied natural justice at the rehearing application on 12 October 2015 when the Tribunal Member refused to accept the folder of documents filed by him in accordance with Tribunal orders. Such refusal by the Tribunal Member was in contravention of sections 38 (2) and (5) of the Civil and Administrative Tribunal Act.

Should relief be granted?

1. In Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Gleeson CJ stated at paragraph 37: 'Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.'
2. In Stead v State Government Insurance Commission (1986) 161 CLR 141 the plurality stated at paragraphs 9 ,10 and in the first sentence of 11: 'That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial. Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.
3. Counsel for the appellant specifically referred to the statement at paragraph 16 in Stead that: 'All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result'
4. The issue is therefore whether the appellant could show that the Tribunal Member's failure to accept the folder of documents deprived him of the possibility of a successful outcome; was it demonstrated that a properly conducted hearing could not possibly have produced a different result.
5. In our view, applying the test in Stead, the Tribunal Member's failure to accept the folder of documents did deprive the appellant of the possibility of a successful outcome on the Renewal Application on 12 October 2015. Our reasons for arriving at this conclusion are as follows.
6. The appellant's folder of documents which he sought to hand up on 12 October 2015 contained some 146 pages of documents some of which were no doubt irrelevant, or were copies of documents filed in the Tribunal in connection with the hearing on 3 July 2015. However, not all documents in the folder were irrelevant.
7. The first document to which we have been referred was a statement of the appellant dated 14 September 2015 which was prepared in compliance with the orders made on 31 August 2015. This was clearly a statement of evidence on which the appellant intended to rely at the hearing of the Renewal Application on 12 October 2015.
8. The appellant's statement which is part submission and part factual material discloses that: 1. The appellant stated that he was at all material times ready willing and able to comply with order 3 made by the Tribunal on 3 July 2015, but that he had been frustrated in his ability to comply with the order by the attitude of the respondents and their refusal to act reasonably in the face of difficulties with which he was confronted and which were disclosed to them; 2. The appellant attempted to install the kitchen the subject of the orders on 8 and 9 July 2015; 3. The appellant was going on an overseas vacation which had been booked on 3 June 2015 before the Tribunal orders had been made on 3 July 2015. The appellant stated that he was committed to the travel arrangements which were of a family nature and had been planned some three months before the Tribunal's decision on 3 July 2015; 4. The appellant had made an application to the Tribunal on 16 July 2015 for a variation of the orders made on 3 July 2015 which was rejected as we have described above, because he had failed to provide evidence of the travel. Nonetheless, the appellant attached to his statement and his folder a document from his travel agent dated 3 June 2015 which established that he would be departing from Sydney to Los Angeles on 15 July 2015 and that he would return from Los Angeles to Sydney on 18 August 2015; and 5. When the Tribunal decided on 28 July 2015 not to vary the time for compliance with order 3 made on 3 July 2015, the appellant was already overseas, having left on 15 July 2015;
9. The appellant's folder also contained a statement from the appellant dated 28 August 2015 which provides evidence that the appellant actually received the Tribunal's orders of 3 July 2015 on 8 July 2015. The appellant also annexes correspondence passing between his solicitor and the respondents' solicitor whereby the appellant's solicitor informed the respondents' solicitor on 8 July 2015 that the appellant: 1. was ready willing and able to install 'the downstairs kitchen' on 9 and 10 July 2015; 2. sought access to the premises on those dates in order to carry out the work; 3. would be out of the country from 14 July to 18 August 2015; and 4. would not be able to complete the installation of the 'the downstairs kitchen' until his return unless access was permitted on the 9 and 10 July 2015.
10. The respondents refused the appellant access on 9 and 10 July 2015 because they had not received adequate notice in order to prepare the premises for the installation of 'the downstairs kitchen'. However their solicitor stated that the respondents would ensure the premises would be available on 20 July 2015. In what we believe was an acknowledgement of the information that the appellant would be out of the country from 14 July to 18 August 2015, the respondents' solicitor stated that if the appellant chose to leave the country, 'he should be prepared to instruct other qualified installers to complete the job for him.'
11. At the Appeal hearing we accepted the tender by the respondents of an email that was not tendered before the Tribunal Member on 12 October 2015. The email was dated 31 July 2015 and sent by the respondents' solicitor to the appellant's solicitor. The email stated that in the interests of resolving the matter quickly the respondents were prepared to make their premises available from 5 - 7 August 2015. The email went on to state 'If your client fails confirm by COB today that he will attend and complete the work, and/or fails to complete the work by Friday, 7 August 2015 our client will commence enforcement proceedings without notice and hold your client liable for all his costs.'
12. The respondents' solicitor stated that this communication established that the respondents provided ample opportunity for the appellant to carry out the necessary work. We disagree. The respondents had been informed on 8 July 2015 that the appellant was overseas at that time, namely 5 - 7 August 2015. On the same day the appellant's solicitors informed the respondents' solicitor that they would seek instructions, but their client was overseas. We do not consider that the respondents' solicitor's email of 31 July 2015 takes the matter any further, since all it does is offer access to the appellant on dates when the respondents knew he was overseas.
13. Some, but not all, of the matters referred to above were known to the Tribunal Member on 12 October 2015. The Tribunal Member referred to these matters in that part of his reasons which are: 'Although the respondent does not challenge the basic facts stated above, he states that he attempted to comply with the orders within the due period, but was denied access to do so. The issue arose because following the orders of 3 July 2015 the respondent sought an extension of time in which to comply, because he had arranged an overseas trip within less than two weeks of the date of the orders. The attempt to comply just mentioned, consisted of a request to the applicants late on 8 July 2015 to attend their premises the following morning 9 July 2015 and the following day. The applicants responded that this was insufficient notice to allow them to prepare the premises for the works (it appears the applicants had "rigged up" some type of temporary kitchen for their use) and so the respondent was denied access for those days. The respondent then went on his overseas trip. The respondent through his solicitor, sought an extension of time. This was refused on 30 July 2015 by Senior Member Boyce (who had made the original orders) on the basis that the respondent was aware that there would be a work order made in the substantive proceedings and that the respondent had failed to provide evidence of the travel arrangements. The respondent claimed today that he had made numerous attempts to gain access to install the kitchen but on questioning he agreed he had not done so following the attempt of 08 July 2015. The applicants pointed out that the respondent had apparently returned from his trip before the end of August and had made no attempt to offer to return and complete the works. The respondent maintains he is ready willing and able to return to complete the works. The applicants are adamant that they do not want the respondent to return.'
14. It is clear from the above extract from the Senior Member's reasons that despite his refusal to allow the appellant to hand up his folder of documents, the appellant was nonetheless given an opportunity to make submissions and to answer questions put to him by the Senior Member.
15. The Senior Member's reasons indicate that the following matters were not made known to him. First, that the appellant had been planning his trip since 3 June 2015. The Senior Member incorrectly stated that the appellant 'had arranged an overseas trip within less than two weeks of the date of the orders'. The date of the orders was 3 July 2015. Because the Senior Member did not have the travel agent's document before him, he could not have known that in fact the appellant had booked the travel one calendar month before the date of the orders. Secondly, because the Senior Member did not have the travel agent's document before him, he could not know that the appellant was out of the country from 14 July to 18 August 2015. Thirdly, the Senior Member was not aware that the appellant had only received the 3 July 2015 orders on 8 July and had immediately proposed the unsuccessful arrangements for access. Fourthly, if the Senior Member had the travel agent's document before him, he would have known that the appellant did not return to Sydney until 18 August 2015 and the Renewal Application had been filed before then on 10 August 2015.
16. We would add that we have not been provided with a transcript of the hearing on 12 October 2015 or a sound recording of the proceedings, as provided for in the Appeal Panel's orders of 26 November 2015 when this appeal came before the Appeal Panel for directions.
17. We are of the view that the matters identified in paragraph 46 are the most significant issues that arise out of the folder of documents which the Senior Member declined to accept from the appellant on 12 October 2015. In accordance with what was said in Stead v State Government Insurance Commission the issue is, is it established that the further information could not possibly have made any difference?
18. The denial of natural justice with which this appeal is concerned relates to the entitlement of the appellant to make submissions on the facts that we have referred to above. In our view the lack of an opportunity to make submissions on those four matters did deprive the appellant of the possibility of a successful outcome on 12 October 2015. We are unable to conclude that a properly conducted hearing of the Renewal Application, that is if the appellant's folder of documents had been admitted into evidence, could not possibly have produced a different result.
19. For the reasons set out above we find that the appellant's ground of appeal that he was denied natural justice at the Renewal Application on 12 October 2015 has been made out and that on that basis his appeal should be allowed and the decision of the Tribunal on 12 October 2015 should be set aside. Given that the appeal is successful we do not think that it is necessary to deal with the appellant's remaining grounds of appeal.
20. Section 81 of the Civil and Administrative Tribunal Act states: '(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.'
21. Rather than remitting the respondents' Renewal Application to be reconsidered by the Tribunal, we are the view that we should proceed under section 81(d) of the Act and substitute another decision for the decision at first instance that has been set aside. In that regard we will exercise the jurisdiction conferred on us by section 81(2) of the Act to exercise the functions that were conferred on the Tribunal at first instance. We have decided to proceed in this way because we have formed the view that it is in the best interests of the parties that this matter should be finalised as soon as possible. We were informed at the hearing that the respondents have not taken any action to have the kitchen fabricated by another contractor and installed. That being the case we are of the view that the implementation of the work order made on 3 July 2015, remains the appropriate order.
22. The original orders of Tribunal were made under section 48O of the Home Building Act 1989 which provides: '(1) In determining a building claim, the Tribunal is empowered to make one or more of the following orders as it considers appropriate: (a) an order that one party to the proceedings pay money to another party or to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person, (b) an order that a specified amount of money is not due or owing by a party to the proceedings to a specified person, or that a party to the proceedings is not entitled to a refund of any money paid to another party to the proceedings, (c) an order that a party to the proceedings: (i) do any specified work or perform any specified service or any obligation arising under this Act or the terms of any agreement, or (ii) do or perform, or refrain from doing or performing, any specified act, matter or thing. (2) The Tribunal can make an order even if it is not the order that the applicant asked for.'
23. In his Reasons on 12 October 2015 the Tribunal Member stated that there was considerable animosity between the parties. Be that as it may, section 36 of the Civil and Administrative Tribunal Act states: '(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.'
24. Section 36(3) obliges the parties in these proceedings to co-operate with the Tribunal and to comply with directions and orders of the Tribunal. This extends in our view to the necessary co-operation to ensure that work orders made by the Tribunal can be implemented in an orderly way.
25. At the time the Renewal Proceedings were commenced, section 48MA of the Home Building Act stated: 'A court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the responsible party) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome.'
26. For the reasons set out above, and having regard to the preferred outcome referred to in section 48MA of the Home Building Act we will order the appellant to install the kitchen which was previously stored in the respondents' garage at 1 Vale Avenue Dee Why in a proper and workman like manner, including returning and installing the applicants hot plate and under bench sinks.
27. So far as the costs of the Appeal are concerned we note that in Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120, an Appeal Panel of the Tribunal held that section 60 (Costs) of the Civil and Administrative Tribunal Act applies to the determination of costs in an internal appeal even if different costs provisions applied in the proceedings in the Tribunal at first instance.
28. If a party wishes to make an application of the costs of the Appeal proceedings on the basis of section 60 of the Civil and Administrative Tribunal Act, we will make appropriate directions.

Orders

1. The appeal from the Tribunal's orders dated 12 October 2015 in HB 15/47133 is allowed and the orders are set aside.
2. Having regard to section 36(3) of the Civil and Administrative Tribunal Act and section 48MA of the Home Building Act we are of the view that the orders that should be substituted for the orders made on 12 October 2015 should allow the appellant a reasonable period of time to comply with the order made on 3 July 2015 namely, that the appellant must install the kitchen which was previously stored in the respondents' garage at 1 Vale Avenue Dee Why in a proper and workman like manner, including returning and installing the applicants hot plate and under bench sinks on or before 18 April 2016.
3. We would also make an order under clause 8 of Schedule 4 of the Civil and Administrative Tribunal Act granting leave to the respondents to renew the original proceedings HB15/17048 if the appellant fails to comply with the order within the period of time specified. In order to avoid any future difficulties regarding the timing of the period for completion of the work we grant the parties liberty to apply to the Appeal Panel in order to vary the time for the performance of specified work.
4. Any costs application pursuant to section 60 of the Civil and Administrative Tribunal Act must be lodged with the Appeal Panel and served on the costs respondent within 14 days of the date of these orders either attaching or referring to the documents relied upon in support of the application
5. The costs respondent will have 14 days after the date of receipt of the costs application referred to above, to lodge with the Appeal Panel and serve on the costs applicant the submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon
6. The cost applicant will have 14 days after the date of receipt of the cost respondent's submissions to lodge with the Appeal Panel and serve on the costs respondent the submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.
7. The Appeal Panel Tribunal will determine any costs application on the basis of the papers lodged with them.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 19 April 2016 - Amended date in order 2 to 9 May 2016. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2016