New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298
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Catchwords
New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298
Judgment (7 paragraphs)
[1]
Introduction
In July 2014 Mr Paltram, the Respondent in this appeal, carried out rendering work for Mr Trenholme, a builder, at a site in Hawkes Nest, New South Wales where Mr Trenholme was building a home.
On 10 September 2014, following a hearing in the Tribunal that day in Taree, after lodging an application in the Tribunal on 18 August 2014, Mr Paltram obtained an order that Mr Trenholme immediately pay him $5,554.70 being the balance of the amount Mr Paltram claimed was owing to him for this rendering work.
Mr Trenholme was absent from the hearing.
We are of the opinion that the appeal should be allowed. Our reasons are set out below.
[2]
The decision at first instance
In short reasons the Tribunal member below found that there was an oral contract for the rendering work to be done on a "do and charge" basis. It found that Mr Paltram charged this work at a linear rate, he had rendered an invoice in respect of this work which had not been paid and, therefore, an order for payment was to be made.
The Tribunal had no material before it concerning Mr Trenholme's response to Mr Paltram's application. The hearing on 10 September 2014 was the first occasion the matter had come before the Tribunal for a hearing.
The Tribunal's reasons contained no reference to Mr Trenholme's absence from the hearing and why it proceeded in his absence.
The Tribunal had a discretionary power to proceed in Mr Trenholme's absence on condition it was satisfied that he had been duly served with notice of the hearing or that such service had been duly attempted and it considered that justice required it to proceed in the absence of Mr Trenholme; Rule 35 of the Civil and Administrative Tribunal Rules 2014 (the Rules).
One means of service provided for in the Rules was posting notice of the hearing to Mr Trenholme's residential address in which event the time at which service was deemed to be effected was at the end of the fourth working day after posting ; Rules 13 (2)(b)(ii) and 13(4)(a).
The Tribunal's file concerning the decision at first instance does not disclose any record of consideration by the Tribunal of the exercise of this discretionary power. Relevantly, the file reveals that:
1. Mr Paltram's application gave the Respondent's "Postal address" as 3 Antrim Street, East Ballina, NSW, along with a telephone number and email address as the Respondent's contact details. The Ballina address was, in fact, Mr Trenholme's residential address;
2. the file includes two documents addressed to Mr Trenholme at the above address in Ballina from the Tribunal at Newcastle. Each is dated 27 August 2014. One of the documents is a "Notice of Conciliation and Hearing (Group List)". This document gave the location and time of hearing on 10 September 2014 and also contained a warning that the Tribunal may decide the matter in his absence. The other document was a letter enclosing a copy of Mr Paltram's application (also stating that failure to attend the hearing may result in the matter being determined in his absence). A handwritten note on the file indicates that the correspondence was to be sent by priority post;
3. the Tribunal's appearance sheet for the hearing on 10 September 2014, initialled by the Tribunal member, notes that there was no appearance by Mr Trenholme. In this same section of the record concerning the Respondent there also appears, in different handwriting to the Tribunal member's handwriting, the words "sent by priority post";
4. this notation appears to have been made in an attempt to comply with the Tribunal's practice to record the means of service of notice of hearing on the appearance sheet where the notice is served by means other than ordinary post. However, it did not accord with that practice because it did not record the date and time in relation to such service: paragraph 14 of the Statutory Declaration of Ms Hardwick, the Divisional Registrar of the Consumer and Commercial Division of the Tribunal dated 29 July 2014;
5. in the case of service of notices by ordinary post, in contrast to priority post, we note that the practice of the Tribunal, which can be relied upon by the Tribunal in considering whether to proceed in the absence of a party under Rule 35, is to print, batch and deliver to the post office all on the same day: paragraphs 9 to 12 of Ms Hardwick's Statutory Declaration.
[3]
Mr Trenholme's explanation for his absence
Mr Trenholme gave sworn oral evidence at the hearing of the appeal that he had not seen any of the above correspondence from the Tribunal until after the hearing on 10 September 2014. He said that at the time he was not staying at his home in Ballina where the correspondence was sent. He was staying at Hawks Nest where he had a building job. When he returned to Ballina for a weekend he found and read the letters from the Tribunal with Mr Paltram's application and notice of hearing. His flat mate had left his mail for him unopened on his desk. He then contacted the Tribunal by telephone and explained the situation. He was told he could appeal the decision.
In his Notice of Appeal dated 22 September 2014 Mr Trenholme said that he drove back to Ballina on Thursday afternoon of 11 September 2014 after working 21 days straight on the building job at Hawkes Nest. He opened his mail on Friday 12 September 2014 and from that discovered that the hearing had taken place on 10 September 2014.
Mr Trenholme's version of what occurred was, essentially, unchallenged and we find that he did not see the notice of hearing until 12 September 2014.
There is no evidence as to when the correspondence from the Tribunal arrived at Mr Trenholme's home in Ballina.
[4]
Mr Trenholme's response to Mr Paltram's claim
From his grounds of appeal and sworn oral evidence Mr Trenholme's position in the dispute can be summarised as follows. He disputes that Mr Paltram was entitled to any further payment in respect of the rendering work. He had paid him $14,000 for the work which he believed to be a fair and equitable amount. He claimed that the rendering work was only 90% complete and he had paid another renderer to complete the job. He had originally wanted an hourly rate. Mr Paltram then gave him an oral quote, which he understood was based on a linear rate, which was well below what Mr Paltram came to charge. In his grounds of appeal he set out some detailed calculations supporting what he regarded as a fair charge. In his oral evidence he sought to provide some support for his figures with some calculations supplied by Michael Davies Consulting. Also, in his oral evidence, he raised an issue about the quality of Mr Paltram's paintwork.
[5]
Consideration
In view of the absence of reasons or record on the file, we conclude that either the Tribunal below did not consider or properly consider whether it could and should proceed ex parte to make final orders against Mr Trenholme or, if it did, error has occurred because of a breach of the duty to provide reasons.
With respect to the failure to provide reasons concerning the exercise of the discretionary power, there needed to be findings on material questions of fact concerning service of notice, referring to the evidence on which those findings were based and an explanation of the reasoning process for the conclusion to proceed ex parte: as to what is required of reasons for decision, see, for example, Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 at [32].
The extent of such reasons will vary with the circumstances and with the gravity of the orders being sought. Frequently, we would expect such reasons to deal with the issue quite shortly, particularly in the context of a sizeable daily list of matters for hearing.
In the particular circumstances of this matter, it is unnecessary for the Appeal Tribunal to resolve issues concerning the construction of the relevant provisions in the legislation and rules and the requirements of procedural fairness of the kind which were dealt with or referred to in a related but not equivalent statutory context in Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing Corporation v Brennan (2011) 83 NSWLR 23: see also Al-Mehdawi v Secretary of State for the Home Department (1990) 1 AC 876. It is undesirable that we do so in the circumstances here where the parties were unrepresented and we have not had the benefit of any argument on such issues, let alone argument from legal representatives.
[6]
Orders
For these reasons, the Appeal Panel makes the following orders:
1. The appeal is allowed;
2. The orders made by the Tribunal on 10 September 2014 as corrected on 22 September 2014 be set aside;
3. The whole of the case be reconsidered by the Tribunal.
[7]
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
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Decision last updated: 09 March 2015
Parties
Applicant/Plaintiff:
Ryan Stephen Trenholme t/as Trenholmes Constructions