Merrick v Hines

NCAT Appeal Panel|2020-10-19

REASONS FOR DECISION

This appeal arises out of a decision in the Consumer and Commercial Division.
In this decision, any reference to "the builder" is a reference to the appellant; and any reference to "the homeowners" is a reference to the respondent.
On 14 November 2019, the homeowners, who are the respondents in this appeal, made an application to the Tribunal under the provisions of the Home Building Act 1989 for the refund of an amount of $10,000 from the builder.
The homeowners alleged that the builder had failed to properly complete the building works contracted for by the parties.
The matter was listed for hearing in the Tribunal on 11 June 2020. The hearing was conducted by telephone.
On 11 June 2020, in the absence of the builder, the Tribunal made orders for the builder to pay the homeowners an amount of $10,000. Written reasons set out the basis on which the order was made.
On 4 August 2020 the builder lodged this appeal together with an application to stay the Tribunal order.
On 14 August 2020 the Appeal Panel made an order for a stay of the money order made by the Tribunal, on condition that the builder pays to the respondents $85 for costs incurred by them in registering a money order in the Local Court.

Extension of Time

The Notice of Appeal was lodged outside the 28-day time period specified in cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (the Rules). The Appeal Panel has power to extend time under s 41 of the NCAT Act.
The principles on which an extension of time would be granted to bring an appeal were set out by the Appeal Panel in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 at [21]-[22]. The matters to consider include; 1. The length of the delay, 2. The reason for the delay, and 3. The prospects of success.
The appellant, who was unrepresented both at the initial hearing and in the appeal stated that he had made an earlier application to the Tribunal under Cl. 9 (1) (b) of the Civil and Administrative Tribunal Regulations 2013 (NSW) ('the NCAT Regulations') to set aside the Tribunal order and that application had been declined.
The appeal is 26 days out of time. While we accept that the reason for the delay was because the appellant had lodged a set aside application and that the delay is not substantial, we are not satisfied (for the reasons provided below) the appeal has any prospects of success.
Accordingly, we are not satisfied that we should grant any extension of time for the making of the appeal.

The Tribunal Decision

On 11 June 2020, the Tribunal determined the homeowner's application in the absence of the appellant. The reasons for decision state that the Member was unable to contact the appellant at the scheduled time.
The Member decided that he should proceed to hear the matter in the absence of the appellant because the application had been made on 14 November 2019 and he was satisfied that the appellant had received notice of the hearing.
The respondent had not provided any documentary evidence in accordance with Tribunal previous directions.
The Tribunal made the following relevant findings in determining the application: 1. On or about 11 September 2020, the parties entered into a contract for the appellant to undertake home building work to renovate a bathroom. 2. Between 11 September 2019 and 1 October 2019, the homeowners had paid the builder a total of $13,500. 3. That the appellant had failed to undertake the agreed work to an acceptable standard or complete it. 4. That the appellant was not entitled to retain the monies paid, except for an amount of $3,500 in relation to demolition works and removal works that had been completed. On that basis the Tribunal made an order refunding the homeowners an amount of $10,000
The parties to the appeal were unrepresented. In those circumstances and in accordance with established Appeal Panel practice, we have adopted the position as was stated by an Appeal Panel in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]: 'In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.'
We understood that the appellant was raising an issue of procedural fairness and seeking leave to appeal.

Procedural Fairness

The appellant submits that he was denied the opportunity to supply his evidence. He stated that because of COVID he could not get the required paperwork from his mother's house as he was in quarantine at the time and that he had been ordered by the doctor not to go to his mother's house. The appellant also alleges that he also did not receive a call on the day of a hearing.
This ground of appeal raises the question whether the appellant was denied procedural fairness and we are satisfied that this raises a question of law: Clements v Independent Indigenous Advisory Committee (2003) FCAFC 143; 131 FCR 28 at [8]; Italiano v Carbone [2005] NSWCA 177 at [5].

Consideration

The Appeal Panel in Troy Hood trading as UR Place Landscape v Rutten [2016] NSWCATAP 250 at [5] stated the following in relation to procedural fairness: It is not in every case where a Tribunal has determined a matter in the absence of a party that there will be a breach of procedural fairness. Where notice of a hearing has been given, it will be necessary for an appellant to demonstrate that through no contumelious, dilatory or careless conduct, he or she was nevertheless unable to be present at the hearing….
In Waters v Waghorn [2016] NSWCATAP 247 at [27] -[34], [36] the Appeal Panel also considered whether absence of a party will be a breach of procedural fairness and also noted. [27] The Tribunal has a duty to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(5)(c) of the Act. The Tribunal is subject to the rules of natural justice: s 38(2) of the Act. Nevertheless, it will not be in every case where proceedings were heard in the absence of a party, that there will have been a breach of procedural fairness. Rule 35 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) applies to proceedings in the Consumer and Commercial Division (and this was such a proceeding) and provides, in effect, that the Tribunal may hear and determine proceedings in the absence of a party who has failed to attend a hearing, if the Tribunal is satisfied that notice of the hearing was duly served or duly attempted to be served on the party. Clause 9 of the Civil and Administrative Tribunal Regulations 2013 (NSW) provides that the Tribunal may set aside a decision of the Tribunal that was made in the absence of a party, if the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put. Due to the existence of these rules and regulations, in the usual case, a party will not be denied procedural fairness merely because the proceedings were determined adversely to them in their absence. [28] The appellant's contention is that despite having notice of the hearing, due to her ill health and personal circumstances, she was unable to avail herself of the opportunity to be heard and therefore, in the circumstances, was denied procedural fairness.
In this appeal we are not satisfied that the appellant was denied procedural fairness for the reasons that follow.
As has been in the Tribunal practice during COVID, the matter was listed for final hearing by telephone. The Member proceeded with the hearing because he was satisfied that the appellant was aware of the hearing as the appellant had earlier unsuccessfully sought an adjournment of the hearing listed on 11 June 2020.
The reasons for decision state that the Member was unable to contact the appellant on the day of hearing. The transcript provided by the appellant demonstrates that the Member attempted to call the appellant twice and that no message was left.
The appellant suggests that the Tribunal should have left a message. We reject that submission that it is incumbent for a party to make themselves available to answer the phone at the time of hearing and not for the Tribunal to leave a message or a reminder that the hearing is listed. It is also incumbent upon the party to keep their telephone switched on (if it is mobile phone); and check for received calls.
The usual procedure of the Tribunal is to send parties a written notice of hearing, identifying the time, date and place of the hearing. That notice contains information that makes clear the importance of a party being available to be contacted at the time and date of the hearing, and that if the party cannot be contacted the Tribunal may make a decision in the absence of the party.
There is nothing to indicate in the factual circumstances of this appeal that the normal procedure of the Tribunal in respect of parties being notified of the hearing has been departed from.
There is nothing in the factual circumstances of this appeal to indicate that the Member was in error in finding that the appellant had notice of the hearing. This is confirmed by the information contained in the written notice of appeal filed on 4 August 2020 where the appellant states: "Did not receive phone call on the day of the hearing and called Wollongong NCAT to confirm this on the day".
If a party receives notice of the time, date and place of the hearing from the Tribunal in respect of a hearing conducted by telephone, and the party does not receive any phone call from the Tribunal at the notified time, it is incumbent upon the party to take reasonable and appropriate measures to protect their interests.
Such measures include the party contacting the Tribunal Registry immediately to make enquiries as to why they have not been contacted by the presiding Member and state they are waiting to be contacted.
There may be an appropriate reason why the Member has not contacted the party, such as a delay caused by the time taken to hear earlier matters listed on the day. If the party makes enquiries with the Tribunal Registry, such information can be conveyed to the presiding Member and the party informed when the hearing is likely to commence.
A party to litigation in the Tribunal should be proactive in this regard, not wait until sometime later on the date of the hearing to contact the Tribunal Registry.
There may also be appropriate reasons why a party cannot be contacted by the Tribunal Member, or cannot make expeditious contact with the Tribunal Registry to make enquires on the hearing date about why he or she has not been contacted at the appointed time (such as a medical emergency). This appeal does not raise any such issue.
Moreover, the appellant's assertion that a message was not left, indicates that he did not answer the phone rather than not having received a call at all. The mere fact that a party to a hearing in the Tribunal does not answer a telephone call or calls from the presiding Member and so does not participate in the hearing is not a denial of procedural fairness.
The appellant has provided no supporting evidence in relation to his telephone records or the attempts that he made to contact the Tribunal when he allegedly did not receive a phone call at the nominated time of hearing.
For those reasons, we are not satisfied that the Member failed to telephone the appellant at the nominated time of hearing. We are satisfied the appellant failed to take reasonable measures to contact the Tribunal Registry expeditiously to make enquires so that he could participate in the hearing.
The matter had initially come before the Tribunal for conciliation and hearing on 11 December 2020 and directions were made for the parties to provide their documents. The homeowners were required to provide their documents on 13 March 2020 and the builder by 30 March 2020.
There was a notation on the directions that the appellant would pay two amounts totalling $7,500 in instalments in February and March 2020 and the matter would be withdrawn if those payments were made. Those payments were not made and the matter proceeded.
On 31 March 2021 the Tribunal adjourned the final hearing that was initially listed on 3 April 2021 and extended time for the appellant to provide documents until 30 April 2021. That extension was allowed on the basis that the appellant had been unable to access his home to collect his documents and prepare his case because of quarantine.
By the time the matter had come before the Tribunal on 11 June 2020, despite the extension of time granted, the appellant still had not provided his documents he intended to rely on for the hearing.
While we accept that during COVID there have been various times of complete shut down and requirements for quarantine, the appellant provided no supporting evidence in relation to when and for how long he was required to quarantine and isolate or that he was prevented the entire time from obtaining evidence.
Further the appellant could not identify what restrictions have been in place before 30 March 2021 that had prevented him from collecting the documents from his mother's premises in order to prepare his documents.
Moreover, after the final hearing in the Tribunal, on 26 June 2020 the appellant provided a document headed 'Defence' in which he pleads "wrongful termination of the contract." In the statement the appellant pleads an alternate case that the contract was wrongfully terminated by the homeowners and the appellant could not complete the works.
Attached to that document was the quotation for the works and a copy of the contract for works. It appears from the Tribunal's reasons for decision that those documents had been provided by the applicant in any case and were before the Tribunal at the hearing. It is unclear even now, what documents, if any, the builder required from his mother's home in order to formulate his defence and provide his documents in accordance with the Tribunal directions.
We are not satisfied on the documents now provided by the appellant as to what documents he needed to access from his mother's home and what, if any difference they would have made to his case. It is also unclear why his inability to access any documents prevented him from having a reasonable opportunity to put his case to the Tribunal.
For reasons that are unclear, the appellant did not provide a statement until after the hearing was finalised and had not provided any adequate reason as to why it was not provided in accordance with the Tribunal directions. It was always open to the appellant to provide the statement contesting how the contract came to an end in the same way he did after the hearing.
Other than the extension of time and adjournment that was granted by the Tribunal for the builder to provide his documents, we have not been provided with any other extension of time that was requested by the appellant prior to the final hearing.
The statement now provided by the builder does not annex any documents that were not already before the Tribunal. Further, no evidence is provided as to why, any necessary documents could not have been forwarded to the builder prior to the hearing or why the builder could not have made contact with the homeowners or the Tribunal and provided an alternative address for documents to be sent to.
We are satisfied that it was as a result of the appellant's own dilatory conduct that he was not present at the hearing or that he had not provided documents to support his case.
The Tribunal was correct to proceed with the matter in the builder's absence, and on that basis we do not find that the appellant was denied procedural fairness or that he has established an error of law.

Leave to Appeal

The appellant also seeks leave to appeal.
As the decision the subject of appeal is a decision of the Tribunal in the Consumer and Commercial Division, the Appeal Panel may only grant leave to appeal where it is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). (see NCAT Act, Sch 4, cl 12)
In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel stated at [76] that a substantial miscarriage of justice may have been suffered where: " ... there was a 'significant possibility' or a 'chance which was fairly open' that a different and more favourable result would have been achieved for the appellant had the relevant circumstances in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
If the appellants satisfy the requirements of clause 12(1), the Appeal Panel must still consider whether it should exercise its discretion pursuant to s.80(2)(b) of the Act.
We find no grounds to allow leave to appeal. The appellant's submissions in relation to leave are in essence the same as the issues raised in relation to the denial of procedural fairness. In particular, in relation to the submitting of new evidence, the appellant has not demonstrated that there was evidence which he could have provided that had not been reasonably available to him at the time of hearing.
Accordingly, we do not grant leave to appeal and the appeal is dismissed.

Orders

We make the following orders: 1. An extension of time for the making of the appeal is refused. 2. Leave to appeal is refused. 3. The appeal is dismissed. 4. The stay order made by the Appeal Panel on 14 August 2020 is lifted.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2021

Civil and Administrative Tribunal Regulations 2013(NSW)

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Judgment (9 paragraphs)

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