Tom v Commissioner for Fair Trading

NCAT Appeal Panel|2022-08-05

[2019] NSWCATAP 75 ZND v ZNE [2020] NSWCATAP 34 Texts Cited: None cited Category: Principal judgment Parties: Andrew Tom (Appellant) Commissioner for Fair Trading (Respondent) Representation: Counsel: A Martin (Appellant) A Douglas-Baker (Respondent)

Solicitors: Conroy Stewart Spagnolo Solicitors (Appellant) Legal, Corporate Services, Department of Customer Service (Respondent) File Number(s): 2022/00168739 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: [2022] NSWCATOD 57 Date of Decision: 31 May 2022 Before: T Simon, Principal Member File Number(s): 2022/00072693

Background

The Tribunal below set out the relevant background to this matter at [13]-[21] as follows: 13 On 20 May 2009 the Builder entered into a contract with Marc and Deidree Webster (the Websters) to build a residential house. In mid-2014 the Websters informed the Builder of cracking in the brickwork and plaster of the property, as well as movement of windows and doors. 14 On 28 November 2015 the Websters lodged an application in the Consumer and Commercial Division of this Tribunal (CCD Proceedings). On 8 March 2018 the Tribunal made orders for the Builder to pay the Websters an amount of $6,643.49 in relation to a small part of the Websters claim, being for the rectification of some cracking and other defects - Webster v Tom [2018] NSWCATCD 6. 15 On 4 April 2018 the Websters appealed the Tribunal decision to the NCAT Appeal Panel and on 2 April 2019 the Appeal Panel decided to dismiss the appeal - Webster v Tom [2019] NSWCATAP 75. 16 On 10 March 2022, the Commissioner decided to cancel the Builder's licence and it is that Decision which is the subject of the substantive review application in these proceedings. 17 The Builder first raised the issue of access to Ms Webster's property at a hearing on 24 March 2022. I noted on the directions orders made on that date I noted that the Builder had indicated that he may seek access in relation to a property the subject of one of the complaints dealt with in the Decision. The parties were directed to confer in relation to access and seek to relist the matter if there was no agreement. 18 On 5 April 2022, the Builder's solicitor made enquires to Fair Trading to confirm if the Builder would be granted access to the subject property for the purposes of an inspection. 19 On 9 April 2022, Ms Mancell a solicitor at Fair Trading, wrote to Mr Spagnolo, the solicitor for the Builder, advising that she had been informed by Ms Webster that Mr Webster had died on 1 April 2022. Ms Mancell also advised that Ms Webster was willing to allow access for an inspection subject to conditions and restrictions. 20 On 28 April 2022 Ms Mancell wrote to Mr Spangnolo, on behalf of Ms Webster, requesting further information about the proposed inspection. That same day Mr Spagnolo responded advising: (1) That engineers from Structerre engineers, the Builder, four other named persons and a representative with ground penetrating radar would attend the inspection. (2) The inspection would involve digs at one metre intervals around the house by a mini excavator when possible and hand digging for the balance over two days. (3) The soil would be compacted back into excavated area and made good with topsoil where possible. 21 On 29 April 2022 Ms Webster advised she did not wish to grant access to her property for the inspection.

The Reasoning of the Tribunal at first instance

The Tribunal found that Ms Webster was neither a necessary or proper party to be joined to the proceedings pursuant to s 44 of the Civil and Administrative Tribunal Act 2013 (NCAT Act): at [55].
In this regard the Tribunal distinguished the cases relied upon by the Appellant being the Commissioner of Police, NSW, Police Force v Fine [2014] NSWCA 327 (Fine) and the High Court Decision in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 (Hardiman).
The Tribunal found that Ms Webster was not a statutory applicant in the disciplinary proceedings and has no statutory role in the review application. Further, the Tribunal found that Ms Webster was not a party whose interests are affected by the decision in the disciplinary proceedings: at [43] - [55].
Next, the Tribunal considered the Builder's application for orders pursuant to s 30(2) of the NCAT Act for access to Ms Webster's property even if she was not a necessary or proper party to the proceedings other than as respondent to the application for access to her property: at [56]-[66]
The Tribunal was not persuaded that this statutory provision enables the Tribunal to make an order for access to the property of a non-party in circumstances where they do not consent. In this regard the Tribunal distinguished the decision of Brereton J In the matter of Holideck Pty Limited [2015] NSWSC 2066 where an order was made that the plaintiff give access to a building expert of the defendant to enter a property pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR), r 23.8.
The Tribunal was also not persuaded that the power to investigate a complaint pursuant to s 60 of the Home Building Act 1989 (NSW) (HBA) extends to the Respondent, or the Tribunal in the place of a decisionmaker, to order access to properties without the consent of the relevant property owners.
The Tribunal also in the alternative considered Ms Webster's objection to being required to provide access to her property as a matter of discretion: at [67]-[70]. The Tribunal noted that the proposed inspection involved more than a visual inspection but also included invasive works to be undertaken: at [68].
Further, the Tribunal noted that it had no evidence before it in relation to insurances, or any indemnities for damages if they occur on the property during the inspections. The Tribunal concluded, 'weighing the relevant consideration', that it would decline to make an order for access to the subject property as sought by the Builder: at [70].

Appellant's submissions

Mr Martin of Counsel appeared for the Builder. The Appellant raises four grounds of appeal.
First, that the Tribunal erred in failing to find that Ms Webster was a proper party to the proceedings.
The second ground of appeal was that the Tribunal erred in fact in finding that Ms Webster was not a party to the original disciplinary decision to cancel the Builder's licence.
The third ground of appeal was that the Tribunal erred in law in failing to order Ms Webster to provide access to her property and, in particular, in finding the consent of Ms Webster is necessary before any such order could be made.
The fourth and final ground of appeal was that the Tribunal denied the applicant procedural fairness as not permitting access to the property would mean that the Builder could not deal with the expert reports to be relied upon by the Respondent at the final hearing.
The Builder placed emphasis on the background to the current request for access to Ms Webster's property. We summarise the essential features of this background.
It was in 2009 that the Builder achieved practical completion of Ms Webster's home. In 2015 the Webster's brought proceedings in the Civil and Commercial Division of the Tribunal. During the hearing the Webster's expert, Mr Tozer, alleged the depth of the footings of the home were inadequate. Mr Martin pointed out that this allegation was not pleaded but nevertheless the Tribunal dismissed this allegation and such dismissal was upheld by the Appeal Panel on 2 April 2019: see Webster v Tom [2018] NSWCATCD 6 and Webster v Tom [2019] NSWCATAP 75.
On 7 July 2019, Mr Tozer wrote to the principal registrar of the Tribunal contending that based upon photographs of the footings annexed to the letter that the depth of the footings were less than the 250mm specified in the drawings. This was then followed up on 8 September 2019 by a complaint by the Websters to the NSW Building Commissioner on 8 September 2019 as to the inadequacies of the footings to the home.
On 12 June 2020, the Websters allowed the Building Commissioner and the Senior Building Inspector from Fair Trading, Mr Christy, to inspect the home and the footings. No invitation or notice was given to the Builder about the availability of the site for inspection nor had such notice been given to the Builder at the time of the photographs and letter of Mr Tozer.
This led to the Respondent, through its officer, Mr Lau, opening an investigation and issuing a notice to the Builder on 30 March 2021 requiring him to participate in an examination. Also on this date, Ms Webster emailed Mr Lau providing material in support of her complaint including reports upon which the Websters were refused leave to rely during the Appeal Panel proceedings in this Tribunal.
There is a further email chain between 12 and 16 April 2021 between Ms Webster, Mr Tozer and Mr Lau by which the latter was provided with further information by Ms Webster and Mr Tozer in respect of the Websters' complaint about the Appellant's work.
On 23 November 2021, Mr Christy prepared a report which refers to there being a complaint made by the Websters. This lead to a Show Cause notice being issued to the Appellant on 10 December 2021.
On 10 March 2022, the Respondent determined to cancel the Appellant's building licence for a period of three years. Such decision was made by the delegate for the Respondent and specifically referred to 'new evidence' comprising Mr Christy's report of 23 November 2021 and the correspondence of Mr Tozer of 7 July 2019.
From the above core facts, Mr Martin grounded his submissions on appeal. The essential elements of those submissions, we recount below.
In respect of ground 2, the Tribunal was asserted to have erred in finding that: '…regardless of what triggered the Fair Trading investigation, Ms Webster was not a 'party' to the Decision made by the Commissioner': at [54].
The Builder submitted that the factual chronology demonstrates that Ms Webster had the status of being a complainant to Fair Trading which led to the eventual decision of the Respondent. Accordingly, given Ms Webster's status as the complainant, she was therefore a 'party' to the original decision made by the Respondent to cancel the Appellant's licence: see ground 2 of the Notice of Appeal.
From the above premise, Mr Martin submitted that Ms Webster was 'an applicant to an original decision maker' and is therefore a proper party to any subsequent review pursuant to the statement of the Court of Appeal in Fine at 14 ([41]) where the Court of Appeal stated: A party who is an applicant in the process before a decision maker would also be a proper party. In the ordinary course, the successful applicant would have a relevant interest in the review proceeding and would, therefore, be a proper party to an appeal.
Mr Martin submitted that Ms Webster is a proper party to the Tribunal proceedings, within the meaning of s 44 of the NCAT Act and should be joined to the proceedings on the Appellant's application.
It was submitted that as a party or applicant to the disciplinary proceedings it was not necessary to show that Ms Webster's interests were affected by the outcome of those disciplinary proceedings and the administrative review proceedings in the Tribunal: Fine at 9 ([30]). The Tribunal was alleged to have erred in finding otherwise: ground 1 of the Notice of Appeal.
In any event, Ms Webster did have an interest in seeing her complaints prosecuted properly and to ensure that any proper disciplinary orders were made against the Builder given she suffered as a result of the alleged poor practice of the Builder.
In this regard Mr Martin referred us to the decision of Gummow J in the decision Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd [1994] 49 FCR 250 that the determination of the 'interests' of a person in administrative review proceedings is not limited to those of a legal, equitable or even proprietary interest.
As Mr Martin summarised it: Ms Webster is a proper party by dint of her making complaints to the Commissioner. The proper application of s 44 of the Act results in an order that Ms Webster ought to be joined as a party to the proceedings: ground 1.
Next, Mr Martin contended that an order should be made requiring Ms Webster to provide access to the Applicant's experts to Ms Webster's home whether in conjunction with an order to join her or as a stand alone exercise of power against a non-party. It was not in dispute that Ms Webster was a necessary and proper party to the application for access to her home: see ground 3.
First, Mr Martin relied upon s 38(2) of the NCAT Act where it relevantly provides that the Tribunal may enquire in to, and inform itself, on any matter in any manner the Tribunal sees fit. In this regard Mr Martin relied upon the High Court decision in Minister of Immigration & Citizenship v SZIAI (2009) 259 ALR 429 at 436 where the plurality stated: The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that the failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to a jurisdictional error by constructive failure to exercise jurisdiction.
It was contended that the depth of the footings is a critical fact the existence of which is easily ascertained. It is a critical fact because the Respondent's decision to suspend the Appellant's building licence was based solely upon two findings. First, the depth of the footings was less than 250mm, as specified, and consequent upon that finding a further finding that the Appellant was not honest in his evidence before the Tribunal in the previous proceedings as to the width of the footings in question.
It was also said to be a crucial inquiry because the investigation and photographs relied upon were done without notice to the Appellant and without the Appellant being able to attend with his expert.
The submission put was that the investigation and photographs were inconclusive of the crucial fact because what was exposed and measured was only a portion of the footings and did not measure the truthful depth of the footings which continued past that which was shown on the photographs but hidden from view because it was alleged the footings were indented or set back from the exposed portion and continued to a lower depth.
Accordingly, this gave rise to a need for further investigation with the Appellant's expert investigating parts of the footings to show that at the relevant locations the footings in fact went for at least 250mm. In addition, it was submitted that the measurement of even these exposed portions was not accurate due to parallax error in the way in which the measurements were conducted at some of the sites.
It was also submitted that the existence of the true critical facts was easily ascertainable by a further investigation as the footings remained in the state they were in at the time of the building.
Mr Martin accepted that it was not suggested that the Tribunal should engage in any of this fact finding exercise for itself, given obvious time and budgetary constraints. The order sought was to enable the Appellant to obtain the crucial evidence by being able to have access to Ms Webster's property in order to assist the Tribunal in coming to the correct and preferrable decision.
Mr Martin then relied upon s 38(6)(a) of the NCAT Act which states that the Tribunal 'is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings'.
Reliance was placed upon the decision of the Administrative Decisions Tribunal in Council of the NSW Bar Association v Archer [2005] NSWADT 149 (Archer) where the ADT dealt with an application by the Council to examine Mr Archer on the production of documents given in answer to a summons.
Whilst the Tribunal noted that there was no express power to allow such an examination, it accepted that there must be an implied power to enable it to do so: at [24] - [42]. The Tribunal stated at [44]: In our judgment, an implied power to make orders for examination of recipients of summonses - subject to appropriate limits and safeguards that have been spelt out in the context of summonses, subpoenas, and notices to produce issued by superior courts - is necessary, in the sense of being 'reasonably required', to ensure that the Tribunal can act effectively in discharging, in particular, its duty under s 73(5)(b) to ensure that all relevant material is disclosed to it.
Section 73(5)(b) of the Administrative Decisions Review Act 1997 (NSW) is in the same terms as s 38(6)(a) of the NCAT Act.
Mr Martin submitted that whilst s 38(6)(a) is expressed in terms of an obligation rather than the grant of any express power, it should be regarded as coming with the implied power to order access to Ms Webster's property in order to ensure the effective exercise of its obligation to ensure that all relevant material is disclosed: citing Grassby v R (1989) 168 CLR 1 at 17 and Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 452.
Finally, the Appellant submitted that the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 should apply to the Respondent to the effect that it was inappropriate for the Respondent to make submissions to the Tribunal, particularly given that Ms Webster made her own submissions on the order sought. Briefly stated the principle holds that Tribunals and decision-makers may be restricted from acting as a full contradictor in review proceedings in case such a role could damage their impartiality in subsequent proceedings or dealings with the applicant.
The Appellant accepted, however, that given the possible importance of the decision and the public interest in a fully debated hearing, that it is open to this Tribunal still to hear from the Respondent.
We agree that it is appropriate for us to receive submissions from the Respondent on the question of the relevant powers and procedures for the Tribunal in respect of the orders sought by the Appellant.
Accordingly, we do not need to consider the issue further. In any event, we agree with the Respondent and the Tribunal that Hardiman can be distinguished. The Respondent does not adjudicate on the competing claims of adversaries. It both conducts and decides the disciplinary proceedings. It is appropriate for it to be an active party before the Tribunal.
The final ground of appeal pursued was that the Appellant would be denied procedural fairness if he did not have access to Ms Webster's home in order to deal with the two reports on the state of the home's footings conducted without notice to him and subsequent to the home building proceedings.

Respondent's submissions

In summary, the Respondent submitted that Ms Webster is neither a proper nor necessary party to the proceedings and there is no power in the Tribunal to order Ms Webster to provide access to her property to the Appellant.
The Respondent supported the reasoning of the Tribunal and expanded upon those matters and addressed the further points made by the Appellant before us.
The Respondent contended that the Appellant had not demonstrated that a further examination and inspection of the building in question was necessary.
The Respondent submitted that the matters sought to be raised by the Appellant could be dealt with by cross-examination and evidence from his expert, including the expert reports used in the home building proceedings which included some inspections of the footings and piers of the home.
In respect of grounds 1 and 2, the Respondent submitted that even if Ms Webster was a complainant to the Respondent which triggered the disciplinary proceedings, the Respondent's decision to take disciplinary action under the HBA is necessarily a decision made independent of any complaint which it might receive such that a complainant cannot properly be regarded as a 'party' to any disciplinary action the Respondent might take.
The Tribunal was correct to distinguish Fine in this regard.
Further, it was put to us that Ms Webster has no relevant interest in the outcome of the disciplinary proceedings and has not requested to be joined to those proceedings. Accordingly, Ms Webster is not a proper or necessary party to the proceedings.
In respect of ground 3 the Respondent submitted that the Tribunal was correct in finding that there was no relevant statutory power to access the property of a third party without that party's consent.
The Respondent made submissions based on the decided cases on the proper construction and scope of s 38(6)(a) of the NCAT Act. The submission, in essence, was that s 38(6)(a) cannot be read literally and cannot empower the Tribunal to order access to the property of a third party: citing Chand v Administrative Decisions Tribunal [2011] NSWCA 131 at [46]-[59]; Tanious v NSW Land & Housing Corporation [2021] NSWSC 807 at [33] and [35], Raissis v Anaz [2019] NSWCATAP 25 at [20], [25]-[27], ZND v ZNE [2020] NSWCATAP 34 at [3] and [20], Chen v NSW Land and Housing Corporation [2020] NSWCATAP 128 and Frost v TAFE NSW [2020] NSWATAD 3 at [7]-[11].
In respect of ground 4, the Respondent submitted that the Tribunal made no finding to the effect asserted in appeal ground 4.

Submissions of Ms Webster

Ms Webster made submissions to us supporting the Decision of the Tribunal below. She submitted that she should not be joined to the proceedings as she did not want to be subjected to any further costs orders or hearings within NCAT, having already been ordered to pay the Appellant $142,000 in the previous home building proceedings.

Ground 2

In respect of ground 2, we agree with the submissions of the Respondent and the reasoning of the Tribunal below to conclude that even assuming Ms Webster can be described as a 'complainant' to the Respondent which triggered the disciplinary proceedings, she is not relevantly a 'party' to those proceedings.
Rule 27 of the Civil and Administrative Tribunal Rules 2014 (the Rules) addresses the proper parties to administrative review proceedings as follows: The parties to proceedings for a general decision or administrative review decision are- (a) the applicant, and (b) if an order or other decision is sought from the Tribunal in respect of a person or body (other than the applicant) - the person or body in respect of whom the order or other decision is sought, and 9 D22/0474696/DJ (c) if the Attorney General or other Minister intervenes in the proceedings under section 44 of the Act - the Attorney General or Minister, and (d) any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and (e) any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or procedural rules. Note. In proceedings for an administrative review decision, the administrator who made (or is taken to have made) the administratively reviewable decision concerned would be the person referred to in paragraph (b).
The Builder sought to characterise Ms Webster's role as both complainant and a party or applicant before the decision-maker in order to come within the reasoning of the Court of Appeal in Fine at [41] where the Court said: 41 A party who is an applicant in the process before a decision-maker would also be a proper party. In the ordinary course, a successful applicant would have a relevant interest in the review proceedings and would, therefore, be a proper party to an appeal. In the case of the Commissioner, his role in bringing an application under s 116AE is not merely administrative. Nor is it a perfunctory or a convenient device to facilitate the making of a banning order.
Pursuant to s 116AE of the Liquor Act 2007 (NSW), the Commissioner of Police is the only body that can bring an application for a long-term banning order. The Commissioner pursuant to this provision made an application to the regulator, the Independent Liquor and Gaming Authority, for Mr Fine to be subject to a long-term banning order. The Commissioner of Police sought to be joined to the administrative review proceedings in the Tribunal under the Liquor Act which had been brought by Mr Fine against the Independent Liquor and Gaming Authority.
The Tribunal at first instance and the Appeal Panel refused to join the Commissioner of Police. The NSW Court of Appeal reversed the outcome and ordered the Commissioner of Police to be joined.
The Court of Appeal in Fine pointed out the Independent Liquor and Gaming Authority determines and deals with an application for a banning order made by, and which can only be made by, the Commissioner of Police, as applicant, and Mr Fine has responded to the application. In this regard, the Authority performs an adjunctive function to decide on the application between opposing parties: see Fine at [49]-[50].
On this basis the Court of Appeal determined that the Commissioner of Police was a proper party to be joined in the Tribunal proceedings because the Commissioner of Police was the statutory applicant before the Independent Liquor and Gaming Authority and had an interest in not only the decision of the Authority, but also in the outcome of the administrative review of this decision: see Fine [42]-[48].
The Tribunal rightly distinguished this situation from that of Ms Webster under the HBA.
Section 58 of the HBA permits complaints to be made and s 59 requires those complaints to be investigated. Section 60 of the HBA relevantly provides the following: 60 Investigation by Secretary (1) The Secretary may, whether or not the Secretary has received a complaint, investigate - (a) any residential building work or specialist work, or (b) any holder of an authority, for the purpose of deciding whether or not to serve a notice under section 61.
Following service of a notice under s 61, s 62 of the HBA allows for disciplinary action to be taken. Such disciplinary action can be taken whether or not a complaint has been received and in contrast to the position under the Liquor Act 2007, Ms Webster has no statutory role in the disciplinary proceedings as such as explained by the Tribunal at [43] of the Decision: In Fine, the Commissioner of Police was the statutory applicant for the long-term banning order and therefore a proper party to those proceedings. There is no analogous statutory applicant in disciplinary proceedings under Part 4 of the HBA and Ms Webster has no statutory role in the review application. Further, this is not a case where the administrators decision involved the Commissioner adjudicating on an application between opposing parties, (for example as between Ms Webster and the Builder). I am not satisfied, on that basis, that Ms Webster is a proper party to be joined to the proceedings.
Accordingly, in our view, Ms Webster, even if a "complainant", cannot be described as a party who is an applicant in the disciplinary process before the Respondent as decision-maker so as to be a proper party to the administrative review proceedings as explained in Fine at [41]. We do not understand the Appellant to suggest that Ms Webster could require the Respondent to act upon her complaint. In substance, her position was no different to that of a person making a complaint to Police, a local authority, or any other agency which is empowered to, and institutes criminal or disciplinary proceedings against the person or entity the subject of the complaint.
Accordingly, we reject ground 2.

Ground 1

Rule 27 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) is as follows: The parties to proceedings for a general decision or administrative review decision are- (a) the applicant, and (b) if an order or other decision is sought from the Tribunal in respect of a person or body (other than the applicant) - the person or body in respect of whom the order or other decision is sought, and 9 D22/0474696/DJ (c) if the Attorney General or other Minister intervenes in the proceedings under section 44 of the Act - the Attorney General or Minister, and (d) any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and (e) any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or procedural rules. Note. In proceedings for an administrative review decision, the administrator who made (or is taken to have made) the administratively reviewable decision concerned would be the person referred to in paragraph (b).
Section 44 of the NCAT Act relevantly provides: (1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party. (2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has- (a) been properly or unnecessarily joined, or (b) ceased to be a proper or necessary party.
As noted by the Tribunal at [33], the Court of Appeal in Fine held that the power to join the party conferred by s 44(1) was to be read in conformity with the power of removal in s 44(2), so that a party who was a 'proper or necessary party' ought to be joined in the proceedings They also noted that a 'proper' party may not be a 'necessary' party (at [38]).
In respect of whether a person is a 'proper or necessary party' the Court of Appeal in Fine stated at [39]-[40]: 39 A party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings. For that reason, the decision-maker is usually joined as the decision made may be affected by the application.… For that reason alone, the Authority was properly joined as a party in this case and because of the provisions of the rules is a necessary party to the proceedings. However, the fact that a party such as a decision-maker is a necessary party to proceedings does not of itself require that party to take an active role in the proceedings. This is discussed below in relation to the Hardiman principle. 40 A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a mere inter-meddler would neither be a necessary nor proper party. A Minister may have an interest in being a party. Reasons why this may be so would include where a particular decision affects the operation of a Minister's department or if there is a matter of public interest relevant to the decision to be made of which the Tribunal ought to be informed. This is recognised by s 44(4)(b) which enables a Minister or the Attorney General to intervene.
In our view, Ms Webster's interests are not affected by the decision to suspend the Appellant's building licence so as to be a necessary party to the proceedings. Ms Webster has no statutory interest in the disciplinary proceedings and is not directly affected by any decision as to whether the Appellant should continue to hold his licence. The Appellant did not identify any way in which Ms Webster's interests could, or might be affected by the outcome of the disciplinary proceedings against him.
Next, when considering whether a person is a 'proper' party the Court of Appeal in Fine at [40] appears to put forward a broader notion of a person with an interest in the proceedings beyond being a mere inter-meddler. An example given was that of a Minister who may have an interest in being a party where a particular decision affects the operation of a Minister's department or there is a matter of public interest relevant to the decision.
In the case of Ms Webster, we note that Ms Webster opposes being made a party to the proceedings. No orders are sought against Ms Webster other than to seek access to her property. When Mr Martin was asked what the utility was in joining Ms Webster beyond seeking an access order. Mr Martin suggested that possibly an Anshun or issue estoppel may arise if Ms Webster was a party.
In our view, if they arise, such circumstances do not make it appropriate to join Ms Webster as a party to the proceedings against her will. It is plain that the application to join Ms Webster has come about because of her objection to allowing access to her premises. Even allowing for the possibility of some form of issue estoppel arising if she was a party, we find that the discretion upon the Tribunal as to whether or not Ms Webster should be joined to the proceedings pursuant s 44 of the NCAT Act did not miscarry.
The Tribunal dealt with the question at [45] as follows I find no such interest which would warrant the joining of Ms Webster as a party to the proceedings. Ms Webster objects to being joined to these proceedings. The application of the Builder to join Ms Webster has arisen following her objection to allowing access to her premises for an inspection. That is not a ground upon which upon I find that Ms Webster is a proper party to be joined to these proceedings (the orders for access are dealt with in further detail below).
On an appeal on a question of law, the exercise of a statutory discretion, including that under s 44 of the NCAT Act, can only be overturned in limited circumstances: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505-506.
In Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 (Hannaford) the Court of Appeal summarised the House v The King circumstances at [14] (Tobias AJA) and held that an attack on a discretionary decision must fail: "…unless it can be demonstrated that the decision maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning."
In our view, the Appellant has not demonstrated that the Tribunal erred in the manner summarised by the High Court in House v The King and by the Court of Appeal in Hannaford.
We do not intend by this conclusion to express any view as to whether or nor it may be appropriate to allow a complainant in the position of Ms Webster to join or otherwise intervene in the proceedings on the application of such complainant.
Accordingly, we reject ground 1.

Ground 3

The issue under this ground is whether or not the Tribunal has power to order that Ms Webster provide access to her property and permit investigations and photographs to be taken of the foundations of the home. Mr Martin accepted that there was no direct authority on the matter and sought to argue in favour of the proposition from first principles.
As noted by the Tribunal at [56] the Appellant in the proceedings below sought orders for access to Ms Webster's property pursuant to s 30(2) of the NCAT Act. On appeal Mr Martin did not seek orders for access pursuant to s 30(2) of the NCAT Act, but rather, pursuant to s 38(2) or s 38(6)(a) of the NCAT Act. The Appellant did not seek to challenge the conclusion of the Tribunal at [65] and [66] that s 30(2) of the NCAT Act did not enable the Tribunal to make an order for access to the property of a non-party in circumstances where they do not consent. Similarly, the Appellant did not seek to challenge the conclusion reached by the Tribunal at [66] that the power to investigate in s 60 of the HBA does not extend to the Commissioner, or the Tribunal in the place of the Commissioner, having power to enter upon and investigate properties so as to enable the Tribunal to make an order for access to Ms Webster's property.
Accordingly, the issue before us is the proper construction of s 30(2) and s 38(6)(a) of the NCAT Act and whether they empower the Tribunal in the circumstances of the current case to make an order against a non-party for access to that third party's property for inspection and investigation.
Section 38 of the NCAT Act appears in Division 1 Introduction (ss 35-38) of Part 4 Practice and Procedure (ss 35-70) of the NCAT Act.
Section 35 of the NCAT Act provides as follows: 35 Application of Part Each of the provisions of this Part is subject to enabling legislation and the procedural rules.
Section 83B(3)(a) of the HBA is the relevant enabling provision and the HBA is the relevant enabling legislation. There is nothing in the HBA as the enabling legislation nor in the procedural Rules governing otherwise the procedure of the Tribunal which expressly enables an order for access to a property or which, on the other hand, expressly does not allow for such an order.
Section 38 of the NCAT Act, upon which the Appellant relies, provides as follows: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2) - (a) the Tribunal must observe the rules of evidence in - (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privileges in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Note. Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege. (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable - (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - 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. (6) The Tribunal - (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
Immediately it can be noticed that s 38 does not grant any express power upon the Tribunal to enter upon any person's property for the purpose of inspection or investigation of building works. Section 38(2) of the NCAT Act is a permissive provision enabling the Tribunal to 'inquire into and inform itself on any matter in such manner as it thinks fit' without being bound by the rules of evidence.
Section 38(6)(a) of the NCAT Act has as its focus a duty to ensure 'that all relevant material is disclosed to the Tribunal' but without, again, a grant of any specific power to enable the duty to be performed. In seeking to ascertain whether or not these broad words should be interpreted as coming with a power to enter upon people's properties regard should be had to the overall context of section 38. The context is that section 38 is dealing with the procedure of the Tribunal (generally). In this regard it would appear its main focus and object is to allow the Tribunal maximum scope to determine its own procedure and how it will conduct any hearings before it subject to the rules of natural justice.
We note that the position of the Tribunal is in contrast with that of the Courts of NSW governed by the UCPR and in particular rule 23.8 which provides as follows 23.8 Inspection of property (cf SCR Part 25, rule 8; DCR Part 23, rule 9; LCR Part 20, rule 8) (1) For the purpose of enabling the proper determination of any matter in question in any proceedings, the court may make orders for any of the following-- (a) the inspection of any property, (b) the taking of samples of any property, (c) the making of any observation of any property, (d) the trying of any experiment on or with any property, (e) the observation of any process. (2) An order under subrule (1) may authorise any person to enter any land, or to do any other thing, for the purpose of getting access to the property. (3) A party applying for an order under this rule must, so far as practicable, serve notice of motion on each person who would be affected by the order if made. (4) The court is not to make an order under this rule unless it is satisfied that sufficient relief is not available under section 169 of the Evidence Act 1995 . (5) This rule extends to proceedings on an application for an order under Part 5 (Preliminary discovery and inspection). (6) In this rule, "property" includes any land and any document or other chattel, whether in the ownership or possession of a party or not.
Accordingly, the decision of Brereton J In the matter of Holideck Pty Limited [2015] NSWSC 2066 is not of assistance in construing s 38 of the NCAT Act.
We note that nothing appears from the explanatory memorandum or from the second reading speech in relation to the Civil and Administrative Tribunal Bill 2013 which sheds light on the extent of the power to make orders under s 38 of the NCAT Act.
In the absence of decided cases on the matter, it is somewhat instructive to consider the approach of the Courts and the Tribunal on the power to order a party or non-party to be medically examined where such an examination is relevant to ensuring that the defendant is properly able to defend itself from a claim.
Pursuant to part 23, Division 1 and in particular rule 23.4 of the UCPR the Courts of NSW have power to order the medical examination of a party. The power of the Courts to deal with the situation of a party who is not submitting to a medical examination prior to the introduction of an express power has been dealt with by the courts in Australia and the United Kingdom.
In particular, Baston JA in the Court of Appeal in Kurnell Passenger & Transport Service Pty Limited v Randwick City Council [2008] NSWCA 59 (Kurnell Passenger) said (at [79] - [80]): [79] Where a plaintiff sues for damages for personal injuries, it is usual for the defendant to require that the plaintiff be examined by its medical practitioners. Rules of court now provide that where the physical or mental condition of a party is relevant to a matter in issue, another party may seek to have the first party examined by its medical practitioners and, where the first party fails to comply with such a reasonable request, the court may dismiss the proceedings: Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), Pt 23, rr 23.1 and 23.9. Before such rules were promulgated, the court had no power to order anyone to submit to a medical examination, but could direct that an action be stayed unless the plaintiff submitted to examination by doctors nominated by the defendant: see Baugh v Delta Water Fittings Ltd [1971] 1 WLR 1295; Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 at 71 (Lord Denning MR). The court retains such a power. [80] Court rules do not, however, extend to examinations of persons who are not party to proceedings, with one exception, being a person for whose benefit a claim is made under the Compensation to Relatives Act 1897 (NSW); UCPR, r 23.1(1)(b)(ii). No express power is conferred on a party (or the court) to require a person not a party to proceedings to undergo a medical examination. Nor is the indirect mechanism of ordering a stay available against a plaintiff, unless the plaintiff has some means to require the worker to undergo examination for the benefit of the defendant in the proceedings brought by it.
The UCPR does not apply to the Tribunal and there is still no express power to order a party to be examined by a medical practitioner. In Commissioner of Police, NSW Police Force v Robinson [2022] NSWCATAP 121 it was assumed the remedy of a defendant who was unsuccessfully seeking a plaintiff to submit to a medical examination as requested was to seek a stay and the Tribunal assumed it had power to order a stay in such circumstances where such failure sufficiently prejudiced the interests of the defendant in defending the plaintiff's claim.
We note that the Appellant has not sought a stay of the proceedings in the absence of being able to secure access to Ms Webster's property. The remarks of Basten JA in Kurnell Passenger suggest that there would be some difficulty in successfully seeking a stay of these disciplinary proceedings where the Respondent has no means to require Ms Webster to allow access to her property for the benefit of the Appellant in the disciplinary proceedings: see also Angela Campbell Pty Ltd as trustee for Halina Superannuation Fund v Westpac Financial Services [2015] NSWSC 1495.
The Courts' acceptance (before rules such as the UCPR) that no power existed to order anyone to submit to a medical examination was grounded in part on the fact that such an examination would be an invasion of that person's personal liberty: see for example Starr v National Coal Board [1977] 1 WLR 63 at 68 per Scarman LJ.
By parity of reasoning, subject to a consideration of the cases relied on by the parties, we have difficulty construing the very broad language of section 38(2) or section 38(6)(a) of the NCAT as providing a power to order a non-party, such as Ms Webster, to provide access to the Appellant's representatives to her property and to investigate the footings of her property against her will.
The cases relied upon by the Appellant, in our view, do not support the conclusion that the broad words of these sections give the Tribunal power to make such an order.
The remarks of the High Court in Minister of Immigration & Citizenship v SZIAI (2009) 259 ALR 429 at 436 on the duty 'to make an obvious inquiry about a critical fact' does not provide a source of power in the Tribunal to order Ms Websters to provide access to her property. Ordering Ms Webster to provide such access is a quite different thing to making 'an obvious inquiry'.
In this regard, we agree with the remarks of Deputy President Forgie in Bienstein v Attorney-General (Cth) [2008] AATA 330 in respect of the Federal Administrative Appeals Tribunal that the Tribunal does not have investigative powers to conduct its own searches, where the Deputy President stated: [The tribunal] may conduct its own research or draw on the expertise of its members provided it ensures that it gives the parties a reasonable opportunity to address the material that is raised in this way. Unlike truly inquisitorial bodies, though, it does not have investigative powers such as the power to conduct its own searches. In practical terms, it is necessarily limited by budgetary considerations and, if it is of the view that a particular avenue should be explored, is limited to asking the parties to do so and to submit the results of their exploration.
Further, in our view, the duty in s 38(6)(a) of the NCAT Act to ensure that all relevant material is before it does not come with an implied power to order a non-party to provide access to that person's property.
Dawson J in Grassby v R (1989) 168 CLR 1 at 17 said: It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication from statute provisions conferring particular jurisdictions'.
In our view, it cannot be said that a power to require a non-party to give up access to their property arises by necessary implication for the effective exercise of the broad duty to ensure relevant material is before it.
In this regard, the decision of the previous Administrative Decision Tribunal (ADT) of NSW in Archer can be distinguished. The ADT in this decision dealt with an application by the Council to examine Mr Archer as to his compliance with the production of documents given in answer to a summons. The Tribunal said at [44]: In our judgment, an implied power to make orders for examination of recipients of summonses - subject to appropriate limits and safeguards that have been spelt out in the context of summonses, subpoenas, and notices to produce issued by superior courts - is necessary, in the sense of being 'reasonably required', to ensure that the Tribunal can act effectively in discharging, in particular, its duty under s 73(5)(b) to ensure that all relevant material is disclosed to it.
We note that s 73(5)(b) of the Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act) is in identical terms to s 38(6)(a) of the NCAT Act.
In our view, any implied power to examine recipients of summonses arises substantially out of the express power to issue summonses combined with s 73(5)(b) of the Administrative Decisions Tribunal Act or s 38(6)(a) of the NCAT Act in order to make the power to issue a summons effective. It should be noted that the Tribunal has an independent power to compel disclosure of documents by the power to issue summonses to produce documents and the power to require a witness to appear before it to give evidence and be questioned pursuant to a summons to attend: see ss 46 and 48 of the NCAT Act. Archer should be distinguished on this basis.
The scope of the obligation under s 73(5)(b) of the ADT Act 'to ensure that all relevant material is disclosed to the Tribunal' was considered by the NSW Court of Appeal in Chand v Administrative Decisions Tribunal [2011] NSWCA 131 and in particular at [46] - [59] per Giles JA. The alleged failure in ensuring that the respondent, as administrative decision-maker, had disclosed all relevant material justifying its rejection of an application made by Ms Chand under the Freedom of Information Act NSW (FOI Act).
Giles JA said it at [47]-[48] the following: 47 Section 73(5) contains a collection of stipulations - "(5) The Tribunal: (a) is to act as quickly as is practicable, and (b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (d) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (e) may require a document to be served outside the State, and (f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (g) may dismiss at any stage any proceedings before it in any of the following circumstances: (i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate, (ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings, (iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and (h) may reinstate proceedings that have been dismissed because of an applicant's failure to appear if the Tribunal considers that there is a reasonable explanation for that failure." 48 Most of the paragraphs in s 73(5) express a power. Paragraphs (a) and (b) express obligations, although imperfect obligations to the extent that there is no means of enforcement. It is difficult to see how failure to act as quickly as is practicable could affect the validity of the Tribunal's decision-making, and para (a) is essentially aspirational; para (b) could more readily bear upon the validity of the Tribunal's decision-making.
Accordingly, it needs to be recognised that the obligation on the Tribunal under s 38(6)(a) is 'an imperfect obligation' in the sense that 'there is no means of enforcement' of that obligation. This supports the Respondent's submission that s 38(6)(a) cannot be enforced by the orders sought against Ms Webster.
In Tanious v NSW Land & Housing Corporation [2021] NSWSC 807, Justice Garling observed in relation to s 38(6)(a) of the NCAT Act that 'there is no specific mandated obligation on a member of the Tribunal who is hearing a matter to gather evidence for themselves, to make inquiries of third parties or in any way participate as a fact gatherer in the dispute to be determined by them': at [33].
We note the situation in question here goes beyond the Tribunal gathering evidence for itself but to a power to intrude upon a non-party's property.
Justice Garling went on at [33]-[35] to find that the Tribunal was 'established to determine disputes between parties contained in the proceedings before it', that it is not an inquisitorial Tribunal designed or resourced to undertake independent investigations of any matter of fact raised by a party to a dispute brought before it.
The Appeal Panel has held in a series of decisions that s 38(6)(a) of the NCAT Act should not be read literally: see Raissis v Anaz [2019] NSWCATAP 25 at [22]-[27], per Principal Member Britton and Senior Member McAteer; ZND v ZNE [2020] NSWCATAP 34 at [33], per Deputy President Schyvens, Principal Member Britton and Senior Member Wroth; Chen v NSW Land and Housing Corporation [2020] NSWCATAP 238 at [50], per Principal Member Pearson and Senior Member Thode. In other words, the Appeal Panel has rejected the proposition that s 38(6)(a) confers an unqualified power of inquiry or investigation.
The cases support the proposition that s 38(6)(a) cannot be construed as providing an independent power to order third parties to give up access to their property.
In conclusion, nothing in the text or structure of s 38(6)(a) confers power on the Tribunal to make an order for access to a third party's property independent and irrespective of whether that third party is joined to a proceeding before the Tribunal. It would be a strained construction to hold what has been found to be no more than a qualified obligation to inquire, into an obligation or power to make an invasive order against a third party to give access to his or her property for the purposes of inspection, disturbance and the preparation of expert evidence.
Accordingly, we reject ground 3.

Ground 4

The Appellant alleges that he has suffered a denial of procedural fairness. Mr Martin accepted that the real focus of the appeal, including ground 4, was to highlight the prejudice that would be suffered by the Appellant if his experts did not have access to Ms Webster's property.
For the reasons which follow, it is our view that any question of denial of procedural fairness is premature at this interlocutory stage of the proceedings. For this reason, we decline to grant leave to appeal on this ground.
We accept that the Appellant is prejudiced and at a disadvantage in dealing with the new evidence in question without being able to conduct his own investigations of Ms Webster's property. However, the Tribunal has not yet determined whether or not to receive the evidence in question to which the Appellant takes objection or what weight should be given to it.
The Tribunal may decide to reject the evidence. For example, the Tribunal may decide the circumstances, as forcefully put by Mr Martin, should result in the evidence objected to being rejected, including by analogy with the discretion that the Courts have pursuant to s 135 of the Evidence Act 1995 (NSW) to refuse to admit evidence that might 'be unfairly prejudicial to a party'.
Alternatively, the Tribunal may receive such evidence, but decide to treat that evidence with caution or give it minimal weight bearing in mind the difficulties under which the Appellant may now labour under in responding to that evidence consistently with the submissions made by the Appellant before us.
In this regard we note that circumstances often arise beyond the control of any of the parties which impede a party from being able to test evidence as it may wish or cross-examine the witnesses as it may wish. For example, a witness may be unable to be summonsed or brought to the Court or may have died following the execution of a statement. The Evidence Act sets out procedures by which such statements may nevertheless be admitted in civil proceedings: see Part 3.2, Division 2 of the Evidence Act. Nevertheless, the inability to cross-examine such a witness can be taken into account in assessing the weight to be given to such a statement.
Finally, taking into account the matters referred to by the Appellant in this appeal may lead the Tribunal below to decide that the correct and preferable outcome is to overturn the decision to cancel the Appellant's licence. In this regard, account can be taken of the serious consequences for the Appellant in having his licence suspended or cancelled and the potential application by analogy of the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 supplemented by s 140 of the Evidence Act: see, for example, Higgins v NSW Land and Housing Corporation [2022] NSWCATAP 199 at [54] - [58] and the cases cited therein.
It is not appropriate for us to come to any concluded views on these matters. It is for the Tribunal below to decide such issues bearing in mind all of the evidence before it. It is enough for us to conclude that at this interlocutory stage of the proceedings the Appellant has not suffered any denial of procedural fairness.
Accordingly, we reject ground 4.
In conclusion, we dismiss the Notice of Appeal.

Orders

The orders of the Tribunal are: 1. Leave to appeal is refused. 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: 16 September 2022

Administrative Decisions Tribunal Act 1997(NSW)

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Judgment (14 paragraphs)

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