Phibbs v Giannone

Grounds of appeal

1. The grounds of appeal state that the orders made failed to take into account work completed and extra work carried out and not paid for. The appellant claims that the Tribunal should order that: 1. extra work totalling $4,410 be paid for by the respondent; 2. completed work at the rear of the premises and drainage totalling $5,100 be paid for by the respondent; and 3. the amounts referred to in (a) and (b) be deducted from any refund due to the respondent to avoid unjust enrichment.
2. The appellant claims that: 1. the decision was not fair and equitable; 2. the contract was frustrated and could not be completed due to the existence of a non-disclosed easement; 3. the decision does not take into account the actions of the respondent causing damage to original works; 4. the decision does not take into account extra work carried out; and 5. the contract was frustrated by the respondent not giving further instructions or payment.

Appellant's submissions

1. The appellant has provided written submissions in which he claims that: 1. the work could not be completed at the rear of the premises because of flooding; 2. there was an undisclosed easement at the front of the premises.; 3. he had no building licence but no building contract was required; 4. no council approval was required because the work was inside the boundary and the height of the landscaping wall did not require an engineer's or council's approval; 5. plans were changed by the applicant; 6. the site was too wet; 7. other contractors on site damaged wiring; 8. he completed the bulk of the work and ordered brick blocks which were not substantially used to the cost of $5,035.40 and which cannot now be used; 9. extra work not quoted upon included supplying synthetic lawn, basin garden bed soil and a concrete wall, all of which work in the backyard was completed; 10. a robotic mower was installed and the turf ripped up and the appellant was required to relay and top dress; and 11. he ceased work after the last invoice was not paid for extra work.

Respondent's submissions

1. The respondent states that: 1. the appellant did not attend the Tribunal hearing; 2. the appellant is not a licensed landscaper; 3. the appellant was provided with building plans clearly showing a 3m easement; 4. Albury City Council stated to the appellant the requirements he needed to comply with in order to obtain Council approval; 5. those guidelines included a requirement that the landscaper be licensed; and 6. the appellant's claim that he was not provided instructions is dishonest.
2. With respect to the work involved, the respondent has provided a statement confirming that: 1. the appellant was provided with a full set of plans; 2. whilst water was pooling following rain, the appellant commenced work as the water dissipated; 3. the appellant was instructed to obtain Council approval before constructing the retaining wall, which ultimately had to be demolished because of the absence of consent rendering the work illegal; 4. the respondent failed to draw a plan but merely provided an illustrative sketch; 5. the only modification to the plans was made when it was discovered that the work did not comply with the regulations; 6. the appellant stored materials on adjacent blocks of land and those blocks have since been built on; 7. no other contractors dug in the backyard and wires were severed in six locations; 8. the appellant attempted to reposition sprinkler heads and repair damaged underground pipes which had been installed incorrectly; 9. "extra work" claimed by the appellant was to supply synthetic turf and the expense of this work was paid directly by the respondent; 10. no other invoice or paperwork was provided to him other than the original quotation; 11. there was no need to top dress turf and it was not torn up requiring a relay; and 12. a ratchet clip failed within 24 hours and had to be replaced by the respondent so the irrigation system could operate to avoid flooding.
3. The respondent stated that: 1. the only paperwork received from the appellant was a quotation #1635 for a total amount of $21,860.30 including GST for the proposed landscaping; 2. the terms of the contract required that the respondent pay a deposit of 60%, namely $13,116.18, and this was paid to the appellant; 3. the appellant damaged underground wiring which required repair in the amount of $254.30; 4. the appellant was to obtain Council consent and because he did not do so, the respondent obtained it at a cost to him of $314.

Leave to appeal

1. This appeal has been instituted under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the Act"). It is an internal appeal as provided by s 80(2)(b). Pursuant to Part 6 of Schedule 4 to the Act, an Appeal Panel may grant leave under s 80(2)(b) only if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel considered the requirements for a grant of leave. At [84] the Appeal Panel held: "… (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision-maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [ 45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which Is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, …"
3. In summary, it must be demonstrated that the appellant may suffer a substantial miscarriage of justice because the decision of the Tribunal under appeal is not fair and equitable, or the decision under appeal was against the weight of evidence, or new evidence has arisen that was not reasonably available at the time of the hearing.

Application for stay

1. The appellant has sought a stay of the orders under appeal. Section 43(3) of the Act provides discretion as to whether to grant a stay. Such discretion is to be exercised judicially. A stay may be granted where the Appeal Panel considers it appropriate to do so. Such consideration would necessarily involve examining the circumstances in which the Tribunal hearing took place and the grounds of appeal. In view of the fact that the stay application and the appeal are being determined simultaneously, there is no reason to grant a stay.

Non-appearance of appellant at Tribunal hearing

1. The Tribunal is required to afford procedural fairness to the parties. This includes a right to be heard. A failure to afford a party procedural fairness will constitute an error of law: see Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28; [2003] FCAFC 143 at [8]. Section 38 of the Act describes the procedure to be adopted by the Tribunal. In particular, s 38(5) requires the Tribunal to take such measures as are reasonably practicable: (a) to ensure the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
2. The appellant was provided with the opportunity of attending the hearing and providing submissions and evidence in response to the claims made by the respondent. The order made by the Tribunal expressly refers to the fact that it was satisfied that notice of the hearing was duly served on the appellant.
3. The Appeal Panel notes that the appellant communicated with the respondent on the day of the hearing. However, the appellant has provided no explanation for his non-attendance at the hearing. The requirements of natural justice include the right to be heard. However, a hearing was offered to the respondent which he ignored.
4. It has been held that even where a legal representative makes a mistake in his instructions and fails to represent his client, the opportunity for a further hearing has been lost. After considering such cases, Lord Bridge in Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 at 898 said: "… But in any one of these cases it would surely be fanciful to say that there had been a breach of the audi alteram partem rule [i.e., the right for a party to be heard]."
5. Accordingly, the Appeal Panel finds that: 1. the correct procedures have been followed, as provided by s 38 of the Act. There has been no denial of procedural fairness; 2. in the absence of the appellant's participation in the hearing, the Appeal Panel was required to consider the evidence before it.

Merits of appellant's submissions

1. Based upon such material, it was open to the Tribunal to make orders as made. The Appeal Panel has considered the claims made by the appellant, but notes that the respondent has provided an apparent answer to each of the claims made. Specifically, the respondent states in answer to the appellant's submissions: 1. the respondent supplied a diagram to the appellant at the outset of the contract which clearly showed the existence of the easement; 2. there is no evidence that the contract was frustrated: on the contrary, the respondent repeatedly attempted to have the appellant complete the works but there was no response from the appellant; 3. there were no actions of the respondent which in any way contributed to any damage to the original works: the retaining wall constructed by the appellant was constructed illegally, without Council approval; 4. if there were extra works carried out, namely the laying of a synthetic turf lawn, the respondent has paid for all materials and the work provided by the appellant required rectification by another landscaper and was of no use to the respondent; 5. there is no evidence to support the assertion that the contract was frustrated by the respondent not giving further instructions or payment; 6. the appellant was unlicensed: the appellant was aware that he was required to obtain Council approval and that Council approval required a licensed contractor to undertake the works. The appellant claims that he had insurance, but the only insurance document he has produced to the Appeal Panel shows that he held a certificate of business insurance effected on 11 February 2021, namely after the claim was made by the respondent in the Tribunal.
2. In these circumstances, the Appeal Panel considers that the only basis upon which the appellant could succeed is if the appellant can demonstrate that the Tribunal's decision was so unreasonable that no reasonable decision-maker could make it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 at [10]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.
3. The appellant stated that he did not attend the hearing because he did not have a mobile telephone with him on the day of the hearing. However, it does not appear that the appellant provided any material to the Tribunal prior to the hearing. Further, there is no evidence that the appellant attempted to communicate with the Tribunal to request an adjournment of the hearing. The Appeal Panel does not accept that the appellant could not have made arrangements to notify the Tribunal that he could not appear at the hearing, or that he could not otherwise have appeared.
4. There is nothing to suggest that the Tribunal acted upon a wrong principle, or had mistaken the facts, or did not take into account some material consideration: upon the facts the decision is not unreasonable nor plainly unjust, as is considered in House v The King (1936) 55 CLR 499; [1936] HCA 40. Further, there was evidence to support the finding that was made by the Tribunal: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; [1990] HCA 33.
5. The guiding principle to be applied to practice and procedure is set out in s 36 of the Act, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The appellant was provided an opportunity to present his defence to the claim and elected not to do so. In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, the majority at [92] considered the need for expedition to avoid delays and costs in legal proceedings, subject to the right of a party to be given the opportunity to plead their case (see [98]), and said "speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings".
6. The Appeal Panel is satisfied that the interests of justice require finality in proceedings and that the interests of the respondent in facing another hearing are not justified in view of the fact that the Appeal Panel can discern no substantial miscarriage of justice in the proceedings.

Orders 1. The Appeal Panel orders that leave to bring the appeal be refused and that the appeal be 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: 22 July 2021