Mills v Consumer, Trader & Tenancy Tribunal & Ors

LOWER COURT Consumer, Trader & Tenancy Tribunal JURISDICTION : LOWER COURT HB 02/46676 and HB 03/03927 FILE NUMBER(S) : LOWER COURT Member Mannering JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30024 of 2003 Bernadette Louise Mills T/as Priority One Concreting v Consumer, Trader & Tenancy Tribunal & Ors

JUDGMENT 1 MASTER: On 8 November 2002, the second defendants brought an application in the Consumer, Trader and Tenancy Tribunal (the Tribunal) for a monetary sum of $10,000. The claim concerned damage effected to their property in the course of the construction of a concrete slab. The work was done pursuant to an oral agreement. 2 The application was given a return date (2 December 2002). By facsimile transmitted on the return date the plaintiff sought and obtained an adjournment ("unable to attend due to stomach bug"). Directions were made and the hearing was adjourned to a date to be fixed. The second defendants were given leave to amend and Mr and Mrs Mills were directed to provide a copy of all documents on which they intended to rely at the hearing. The matter was later listed for hearing on 6 January 2003. Mr and Mrs Mills were notified of the new hearing date (notice dated 6 December 2002). 3 Pursuant to the directions the second defendants lodged documents with the Tribunal. This material saw the quantum of the claim being increased to $21,613. The plaintiffs did not lodge any documentation with the Tribunal. 4 On 9 December 2002, the second defendants sought an adjournment (because of a specialist medical appointment which had been arranged six months in advance). It was supported by documentation. The application was granted and it was fixed for hearing for Monday 13 January 2003 at 2.00 pm. 5 Mr and Mrs Mills were notified of the new hearing date. The notice from the Tribunal clearly informed the parties that if there was no appearance at the appointed time and place, the Tribunal may decide the matter in the absence of the parties. The plaintiff does not dispute that such notice was received. 6 Mr and Mrs Mills allege that they suffered water damage in their new home on 10 January 2003 and that rectification work could not be carried out before 13 January 2003. It was said that this was the reason for the second of the two short notice applications for adjournment which was made on Sunday 12 January 2003. The facsimile contained inter alia the following;- "Notice of non attendance. In relation to tomorrows (sic) mediation we are due to unforseen circumstances unable to attend, due to reasons private we will divolge (sic) over a private call. We are also too …..(indecipherable) completion of our justification to void claim against us. We also are awaiting from wittnesess (sic) on holidays. Please adjorn (sic) till early February As (sic) we are eger (sic) to attend to dismiss this matter. Please call if any queries 0408027788

Regards B Mills Also could someone please call in relation to this matter." 7 On 13 January 2003, Mr Mills made a telephone call to the Tribunal. The file of the Tribunal contained a note concerning the telephone call. It records in effect that Mr Mills was advised that because of the short notice of the application it would be considered by the Member at the hearing. 8 The hearing proceeded before the Tribunal on 13 January 2003 and the Tribunal ordered that Bernadette Mills T/as Priority One Concreting & Michael Mills jointly and severally were to pay the second defendants the sum of $22,463. The plaintiff was advised of this order by a Notice of Order from the Tribunal. 9 On 29 January 2003, the plaintiff (Mrs Mills) made an application for rehearing. The application was founded on alleged denial of natural justice by reason inter alia of not being able to attend the hearing because of the water problem and evidence from the plaintiff was not presented at the hearing. 10 On 20 February 2003, the application for rehearing was not granted. By Notice of Order dated 21 February 2003 the plaintiff was advised of that decision. 11 The Notice of Order contained the following reasons:- "Respondents granted adjournment of hearing listed for 02.12.02 and directed to file and serve documentary evidence. No documentary evidence filed and no request made for extension of time. Request per fax for adjournment of hearing on 13.01.03 received on 13.01.03 and considered by member and refused. No reason given in adjournment applicants per request made and no mention of alleged rain damage to respondents (sic) premises. Satisfied no denial of natural justice and consequently rehearing applicant has not made out case for rehearing under Section 68(2)(a). Not satisfied the additional evidence mentioned as now being available was not reasonably available at the time of the hearing - particularly in view of directions made on 02.12.02." 12 On 7 March 2003, the plaintiff filed a Summons in this Court. The relief sought in the Summons seeks to challenge both the order made on 13 January 2003 and the not granting of the rehearing application on 20 February 2003. The Summons raises only two grounds of appeal. One relates to the order. The other relates to the rehearing. Both are framed in terms of denial of "procedural fairness and natural justice". There seemed to be some understanding that these were different concepts. 13 The hearing of the Summons took place on 15 August 2003. Both the plaintiff and the second defendants were represented by counsel. 14 Before proceeding to deal with the submissions made by the plaintiff during the hearing of the appeal, I should make certain other observations. 15 The order of the Tribunal was made against both Mr and Mrs Mills. Mrs Mills is the only plaintiff in this appeal. Mr Mills has not challenged the order. 16 Although the Summons seeks to challenge both the order and the not granting of the rehearing, it is presently incompetent so far as challenge is made against the making of the order. The appeal in relation to it has been brought out of time. Although this matter was brought to the attention of counsel for the plaintiff, no application for extension of time was subsequently made. Indeed, the submissions subsequently made by counsel addressed only the challenge to the not granting of the rehearing. 17 Although the Summons restricted the grounds of appeal to those of denial of procedural fairness, (an avenue of challenge provided by s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the Act) ) an attempt was made to argue error of law pursuant to s 67 of the Act. This was done, even though no application was made to amend the grounds of appeal. 18 Although, the purported challenge to the making of the order is presently incompetent, for the assistance of the parties I propose to direct certain comments in relation to it. 19 Largely, the Tribunal is in a position to determine its own procedure (see inter alia s 28 of the Act). Whilst it is appreciated that it is required to act as informally as the circumstances permit and that substantially it deals with litigants in person, this case (like many others that have been brought to this Court in recent times), throws up the problems that can arise when adjournment applications are dealt with by way of telephone or facsimile transmission. There have now been a number of appeals before this Court which have arisen from a refusal of an adjournment application and/or the plaintiff not attending before the Tribunal. 20 There seems to be a fashionable trend to allege denial of procedural fairness consequent upon a refusal of an adjournment application or a non-attendance. The trend is founded on misconception. Generally speaking, if there be an avenue of appeal, it could be expected to be by way of challenge to the exercise of the discretion. 21 In this case, the refusal of the adjournment application did not occasion denial of procedural fairness. There was an awareness that the application may be dealt with in the absence of an attendance. There was an awareness that the application for adjournment would be dealt with by the Tribunal Member at the hearing. The plaintiff should have been aware that the application may not be granted. A reasonable opportunity was had to present a case. Advantage was not taken of that opportunity. A decision was made not to attend and to proceed on the basis that the application would be granted. 22 I put to one side the question of whether or not there was genuine reason for not attending. It is not a question that needs to be determined. However, I will make certain observations. It was not a reason advanced in the facsimile and it was not a matter which would appear to have to be kept "private". One of the reasons advanced suggests that they were not ready to proceed (witnesses on holidays). 23 Assuming that there was a requirement for an attendance at their home on 13 January 2003, nothing has been said to suggest that it was not possible for one of the parties to be at their home for some time during the day and for at least the other to attend before the Tribunal at 2.00 pm. 24 The facsimile reflects a disturbing trend manifested by some litigants in person. It is now not an unusual practice for such facsimiles to be received by a court or tribunal shortly before the time of hearing. Inevitably they give rise to the suspicion that it is sought to force an adjournment on the court and the other parties. If it is granted it can be expected to cause prejudice to others and is disruptive to the conduct of the court's business. 25 In this case, the facsimile transmission has the characteristics of arrogance. It presents itself as a "Notice of non attendance" and calls upon the Tribunal to respond by telephone. At the very least it manifests a lack of respect for the Tribunal. Indeed, it might be said to be bordering on contempt. 26 I now turn to the not granting of the rehearing. The plaintiff was given a reasonable opportunity to put her case on the rehearing. In my view, there is no basis whatsoever for contending (if indeed, such an allegation is made) that there was any denial of procedural fairness in relation to it. 27 At least largely, the submissions made to this Court were but brief and might be said to relate to allegations of error of law. The grounds of appeal relied on by the plaintiff do not enable the putting of such submissions. Be that as it may, the submissions did not agitate any error of law in the relevant sense (see inter alia Eather & Anor v Rawson homes & Anor [2003] NSWSC 439), and in any event were lacking in substance.

28 Before concluding this judgment, for completeness I should also mention that the submissions saw the ventilating of matters concerning the quantum of the order and the parties against whom it was made. The second defendants had been given leave to amend. The quantum of the order was marginally larger than the amount of the amended claim. The difference was minimal and would not of itself justify the granting of any relief. In any event, the reason for the quantum of the order is left unclear. There is no demonstration of error. There was material in the Tribunal file that suggested Mr Mills may have been the party who participated in the making of the oral agreement. It also suggests that he may have falsely presented himself as a licensed tradesman. It also appears that he was expected to supervise work done under the agreement. Presumably subsequent inquiry led to the discovery that Mrs Mills carried on business under "Priority One Concreting" (the file contained a Business Names Extract). It could be expected that evidence of inter alia the same may have led to both the seeking and the making of the order against both Mr and Mrs Mills. 29 What took place before the Tribunal largely remains a mystery. The evidence before the court was the Tribunal file (Exhibit A1). The reason for this is that the plaintiff failed to seek written reasons from the Tribunal. The lack of reasons of itself was another of a number of matters that operated to render this appeal hopeless. 30 The plaintiff bears the onus of satisfying the court that a decision of the Tribunal should be disturbed. In my view, that onus has not been discharged. 31 The Summons is dismissed. The plaintiff is ordered to pay the costs of the Summons. The Exhibit may be returned.

Last Modified: 08/28/2003 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.