Jones v Dempsey

NCAT Appeal Panel|2015-03-02

Introduction

In this matter the appellant, Mr Christopher Jones, seeks to appeal from orders of the Consumer and Commercial Division of the Tribunal (the CCD) made on 29 October 2014. Mr Jones was one of the applicants in the proceedings. The other applicant was Ms Brigitte Letzbor. Mr Jones and Ms Letzbor are the owners of a property purchased from the respondent to the appeal, Mr Rod Dempsey. Mr Jones alleges defective building work by Mr Dempsey.
The orders made by the Tribunal were expressed to be made with the consent of the parties. The first order was that Mr Dempsey pay Mr Jones and Ms Letzbor the sum of $22,000 on or before 26 November 2014. The second order was that there be no order as to costs. We shall refer to these two orders as "the consent orders".
On 5 November 2014 Mr Jones filed an application with the Tribunal seeking that those consent orders be set aside pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (the Act). On 10 November 2014, the Tribunal, after noting that it was difficult to detect any obvious error in the consent orders of the type contemplated by s 63 of the Act, dismissed the application for want of jurisdiction. The Tribunal held that cl 9(1)(5)(a) of the Civil and Administrative Regulation 2013 provided that a party may not make an application for an order to set aside an order under s 63 if an appeal had been lodged.
As Mr Jones had filed this appeal on 7 November 2014, the Tribunal dismissed the application to set aside the consent orders.
There is one other preliminary matter to note. Ms Letzbor was an applicant in the proceedings below and was a beneficiary of the order. She was not named as an appellant in the notice of appeal filed by Mr Jones but is referred to as an appellant in the submissions received by the Appeal Panel on 12 December 2014. Mr Dempsey submits, amongst other things, that the Appeal Panel does not have jurisdiction because Ms Letzbor is not a party to the appeal. It is unclear whether Ms Letzbor authorised Mr Jones to lodge the appeal on her behalf or indeed whether she knew of the appeal.

Grounds of Appeal and submissions of the parties

Mr Jones' grounds of appeal of appeal are set out over two pages in his notice of appeal. A principal complaint, although there are many, is that after receiving the respondent's payment of $22,000 and after paying all legal costs, there is a deficiency. Mr Jones states that "effectively, the net effect is that the applicant/customer is paying for all [the] owner/builder's statutory obligations to remediate established defects". We note in particular that the grounds also state that Mr Jones "reluctantly accepted the negotiated settlement figure under huge pressure at the time of the hearing".
Mr Jones provided 11 pages of submissions and a further 29 pages of supporting documents to the Appeal Panel on 12 December 2014. We note that these submissions were prepared by Mr Jones personally, his previous solicitors having withdrawn. The submissions state various grounds of appeal, which we have summarised and numbered as set out below: 1. the expert witness representing Mr Dempsey, Mr McLaughlin, had a financial interest that was not disclosed to the Tribunal; 2. Mr Dempsey's solicitor, Mr Elsworthy, made a false statement at the conclave; 3. Mr Dempsey breached further legislation; 4. Mr Singh-Panwar, the solicitor who was then acting for Mr Jones, had a conflict of interest, and otherwise behaved improperly; 5. Mr Jones accepted the "negotiated settlement" with "stressed, clouded and ill-informed judgment [and] with little choice"; and 6. new evidence is available showing that Mr Dempsey's experts were not correct.
There is no contest that at all times leading up to the Tribunal making the consent orders Mr Jones was represented by a legal practitioner, Mr Singh-Panwar.
Mr Jones did not complete the notice of appeal form in its entirety and therefore has not responded to the question of whether he is seeking leave to appeal. He has nonetheless addressed the leave questions raised in the notice of appeal form. He contends, on the basis of the submissions summarised above, that the decision of the Tribunal was not fair and equitable and was against the weight of evidence and that there is new evidence now available that was not reasonably available at the time of the hearing.
Mr Jones' grounds of appeal do not identify whether he believes the Tribunal made an error that raises a question of law but given he is not legally qualified and is not legally represented in his appeal, this is not surprising or determinative.
The Tribunal is mindful that it may be difficult for self-represented appellants, like Mr Jones, to identify and properly articulate a question of law. The Tribunal must give effect to the "guiding principle" when exercising functions under the Act is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s 36(1)). This is reinforced by s 38(4) which provides that the Tribunal is required to act with "as little formality as the circumstances of the case permit" and "without regard to technicalities".
Accordingly, it is appropriate to examine Mr Jones' stated grounds of appeal and identify, where possible, any relevant question of law that may arise, even where the grounds identified are inelegantly or imprecisely expressed. We note that Appeal Panel has taken such an approach in a number of recent cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69.
Mr Jones challenges the consent orders made on 29 October 2014 and one of the grounds he contends is that he felt pressured to settle in circumstances where he alleges impropriety by his solicitor, the solicitor for Mr Dempsey and the experts acting for Mr Dempsey.
For the reasons later explained, this may raise a question of law. Even if Mr Jones appeal does not raise a question of law, it is clear he wishes to appeal the decision on the grounds that he has suffered a "substantial miscarriage of justice". The implication from his extensive written submissions is that he seeks leave to appeal on the merits.
Mr Dempsey's primary submission is that the Appeal Panel lacks jurisdiction to hear this appeal. He submits that as the consent orders being appealed were reached by the agreement of the parties they do not constitute a "decision" of the Tribunal. He further submits that Mr Jones has not raised any question of law and therefore needs leave to appeal, which has not been sought. In any event leave should not be given. The consent orders were fair and equitable and there was no failure in the way the mediation was conducted which deprived the appellant. The consent orders were entered into freely and with legal advice and there was no fraud, duress or coercion by or from any party towards the appellant. Mr Jones has not introduced any fresh evidence and instead seeks to restate the same evidence was available at the mediation in an attempt to have the matter reheard. Mr Jones claims are defamatory and vexatious and the appeal should be dismissed.
The questions for determination by the Appeal Panel were: first, whether it has jurisdiction to hear this matter given the orders were made by consent; secondly, whether there was any error of law in the Tribunal making the consent orders on 29 October 2014 and, if not; thirdly, whether leave to appeal should be given and if so, what orders should be made.

Background

It is appropriate to set out the background to the present appeal. Mr Jones commenced proceedings in the Home Building Division of the then Consumer Trader and Tenancy Tribunal on 28 May 2013. He sought an order that Mr Dempsey pay $268,112 in respect of defective building work. By 3 February 2014 the amount sought was $633,869.00. On 6 May 2014 the claim was reduced to $134,353.22.
An on-site conclave and mediation was held on 29 October 2013 at Mr Jones' home. Mr Jones was represented by his solicitor Mr Singh-Panwar. Also present for Mr Jones were two expert engineers, Mr Eddy and Mr Shandly, and an expert building consultant Mr Leask. Mr Dempsey was represented by his solicitor Mr Elsworthy. Present for Mr Dempsey were an engineer Mr McLaughlin and an expert building consultant Mr Shepherd. The Tribunal was constituted by Senior Member, Mr Vrabac, who conducted the conclave and the subsequent mediation. The mediation concluded with the parties agreeing to the consent orders, and the Tribunal consequently making those consent orders. The primary order was that Mr Dempsey pay Mr Jones and Ms Letzbor a total sum of $22,000.00 on or before 20 November 2014. It is common ground this amount has been paid.

Legislative framework and jurisdiction

Section 59 of the Act sets out the Tribunal's power to make orders to give effect to any agreed settlement reached by the parties. Section 59(1) provides: 59 Powers when proceedings settled (1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if: (a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal; and (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement.
As noted in Loch v New South Wales Land and Housing Corporation [2014] NSWCATAP 110 at [10], a consent order is an order which is binding on the parties in the same way as a decision given after a contested hearing.
The internal appeal jurisdiction of the Appeal Panel is set out in s 32 of the Act, which relevantly includes "any decision made by the Tribunal in proceedings for a general decision". Section 5(1) defines "decision" broadly and includes the making of an order or determination. A "general decision" is defined in s 29(3) as a decision of the Tribunal determining a matter over which it has general jurisdiction. Section 29(1)(a) provides that the Tribunal has "general jurisdiction" over a matter if legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions and the matter does otherwise not fall within the administrative review, appeal or enforcement jurisdiction of the Tribunal.
The consent orders were plainly a decision of the Tribunal (by reason of s.5 of the Act) in proceedings for a general decision (by reason of s 29(1) of the Act). We therefore reject the submission made by Mr Dempsey that the Appeal Panel does not have jurisdiction to hear this matter because there is no "decision". We concur with the Appeal Panel in Loch at [29] and find that a consent order may be an "internally appealable decision" as defined in s.32 of the NCAT Act. Accordingly, the Appeal Panel has jurisdiction to hear the appeal.
Part 6, Division 2 of the Act deals with internal appeals. Under s 80(2)(b) of the Act an internal appeal may be made as of right on any question of law but with the leave of the Appeal Panel on any other grounds. Relevantly, cl 12 of Schedule 4 of the Act provides that the Appeal Panel may grant leave to appeal in respect of a decision made by the CCD but only if satisfied that the appellant may have suffered a "substantial miscarriage of justice" because the decision was not fair and equitable, against the weight of evidence or significant new evidence is available that was not available at the hearing.
Having regard to the submissions of the parties, the second issue for determination is whether Mr Jones' grounds of appeal raise a question of law, namely, whether the circumstances alleged by Mr Jones to affect the validity of the consent orders made by the Tribunal on 29 October 2014 raise an error of law. If not, a further question arises as to whether Mr Jones should nonetheless be given leave to appeal the consent order because he may have suffered a substantial miscarriage of justice.

Consideration

The Tribunal made the consent orders following mediation. There is no suggestion that the Tribunal did not have power to make the consent orders but rather that the orders should not have been made because Mr Jones felt pressured to agree to the settlement in a mediation process which he alleges was tainted by impropriety. Mr Jones does not contend, nor is there any material before the Appeal Panel to suggest, that there has been a breach of s 59 of the Act.
We note that rule 37 of the Civil and Administrative Rules 2014 provides that, in deciding whether to make orders to give effect to a settlement reached by parties to proceedings, the Tribunal is to take into account the interests of any "vulnerable person". A vulnerable person for the purposes of the rule is a minor, or a person who is totally or partially incapable of representing himself or herself in proceedings because he or she is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled. Mr Jones has not submitted that this rule has any application in the circumstances of his appeal or that this rule provides a basis to allow his appeal and set aside the consent orders. Relevantly, there is no material before the Appeal Panel that would support such a submission in any event.
In Loch the Appeal Panel considered a similar submission to that raised by Mr Jones in the present appeal, noting that a consent order may be set aside if it is affected by matters such as fraud, mistake, duress or undue influence. In its decision the Appeal Panel referred to the decision of the High Court of Australia in Harvey v Phillips [1956] HCA 27. The High Court there considered an appeal where the appellant claimed that "great pressure" had been placed on her to consent to a settlement, and where "counsel went to unusual lengths to overcome her resistance" (see [5]). In the course of its judgment the Court explained at [9]: The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.
This decision was followed and applied by the Appeal Panel in Loch at [27] to [29]. The Appeal Panel held that the grounds at common law for setting aside a consent order "were also grounds which may lead the Appeal Panel to conclude that it should set aside a consent order" but relevantly noted, [at 29]: If a party intends to rely on grounds such as duress, undue influence or misrepresentation, it will be necessary to provide evidence of the facts which support that ground.
After considering the evidence, the Appeal Panel concluded it was not satisfied the Tribunal made an error of law or that there had been a substantial miscarriage of justice warranting leave.
We have considered the written submissions and material provided by both parties and we are not satisfied that Mr Jones has established grounds to set aside the consent orders, either because there was an error of law or because there may have been a substantial miscarriage of justice.
Mr Jones' six grounds of appeal are summarised above. Of those grounds, in our view, only the grounds numbered (1) (undisclosed financial interest of Mr Demspey's expert), (3) ("Mr Elsworthy made a false statement at the conclave"), and (5) ("Mr Jones accepted the "negotiated settlement" with "stressed, clouded and ill-informed judgment [and] with little choice") potentially fall within the principles we have referred.
In relation to ground (1), while it is asserted that Mr McLaughlin had a financial interest that was not disclosed to the Tribunal, the actual ground of objection appears to be Mr McLaughlin's independence, or lack thereof. Mr Jones submits that Mr McLaughlin was not independent as he as Mr Demsey's design engineer for over 13 years, having been engaged to design Council-approved and other work. Mr Jones submits that the Tribunal was misled by Mr McLaughlin not disclosing his financial interest in the proceedings. As the Tribunal made no decision on the merits of Mr Jones' application, and simply made consent orders at the request of the parties following their agreement, there is no substance in this submission. Nor has Mr Jones it provided any evidence of the facts which might support such a ground.
As to ground (3), the allegedly false statement explained in Mr Jones' submissions was a statement made at the conclave by Mr Elsworth that Mr Dempsey had the necessary Council approvals for undertaking building work over a 13 year period. Mr Jones does not in terms suggest that he relied on this statement in any way or that it caused him to enter into the agreement to compromise the proceedings. In those circumstances we do not consider that this is the type of statement falling into the categories identified in Harvey v Phillips. Nor has Mr Jones provided any evidence of the facts which might support his assertion.
We consider that ground (5) is Mr Jones' principal concern. As he explains it: The huge stress by the large number of unfair injustices caused a mental blank and cloud over my logical thinking. I just wanted to end it all because the legal system did not seem fair to a layperson, the lies and deception during proceedings and the same unfair behaviour by [Mr Dempsey] almost two years prior to exchange of contracts and settlement.
It is clear enough on the materials provided that Mr Jones, having agreed to the settlement of the matter which is encapsulated in the consent orders, almost immediately regretted his decision. However, he has advanced no persuasive reason, in terms of the principles we have set out above and in circumstances where he was legally represented at all material times and apparently further advised by two expert engineers and an expert building consultant, as to why the consent orders of the Tribunal should not have been made and why they should now be set aside. We also note that the sum of money agreed to be paid by Mr Dempsey has in fact been paid.
As already noted, there is no submission or evidence that Mr Jones is a "vulnerable person" within the meaning of rule 37. It is possible that Mr Jones is seeking to invoke the principle of duress as the basis for setting aside the consent order, namely, he agreed to the settlement because there was no other practical choice open to him ("I just wanted to end it all").
As noted in Universe Tankships Inc of Monrovia v International Transport Workers Federation ("The Universe Sentinel") [1983] AC 366 at 400B-D: [there are] two elements in the wrong of duress: (1) pressure amounting to compulsion of the will of the victim; and (2) the illegitimacy of the pressure exerted. There must be pressure, the practical effect of which is compulsion or the absence of choice. Compulsion is variously described in the authorities as coercion or the vitiation of consent.
Mr Jones has not provided any detailed particulars or evidence of either the pressure he claims was exercised on him (that is, who exerted the pressure, what it was and who exerted it) or how it was that pressure caused him to suffer what he describes as "a mental blank and cloud". In those circumstances we conclude, for all the reasons set out above, that ground (5) must fail.

Conclusion

Mr Jones does not have an arguable ground of appeal in light of the principles we have set out above. In the circumstances we conclude there is no error of law, leave to appeal should be refused, and the appeal otherwise dismissed.

Costs

Mr Dempsey claims that the appeal is vexatious. He has requested the opportunity to seek an order for costs of the appeal. In this Tribunal, the usual rule is that each party is to pay their own costs (s 60(1)), but the Tribunal may award costs in relation to the proceedings before it only if it is satisfied that there are "special circumstances" warranting an award of costs. In determining whether there are special circumstances warranting an award of costs, s 60(3) provides that the Tribunal may have regard to the following: 1. whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, 2. whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, 3. the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, 4. the nature and complexity of the proceedings, 5. whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, 6. whether a party has refused or failed to comply with the duty imposed by section 36 (3), 7. any other matter that the Tribunal considers relevant.
We are of the view that this is a matter where it is appropriate that there be no order as to costs. If either party seeks some other order, submissions should be filed within 14 days of receiving these submissions, with the other party responding if it wishes within a further 14 days. If necessary any order as to costs will be determined on the papers.
For these reasons, the Appeal Panel makes the following orders: 1. The appeal on a question of law is dismissed and leave is refused for Mr Jones to appeal on other grounds. 2. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 March 2015

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