Troy Hood trading as UR Place Landscape v Rutten

Procedural Fairness and Further Evidence

1. It is not in every case where a Tribunal has determined a matter in the absence of a party that there will be a breach of procedural fairness. Where notice of a hearing has been given, it will be necessary for an appellant to demonstrate that through no contumelious, dilatory or careless conduct, he or she was nevertheless unable to be present at the hearing. In such cases it may be appropriate for the appellant to rely upon evidence that was not before the Tribunal at first instance, in order to prove the breach of procedural fairness. The Appeal Panel noted as follows in Waters v Waghorn [2016] NSWCATAP 247 at [27] -[34], [36]: Procedural Fairness [27] The Tribunal has a duty to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(5)(c) of the Act. The Tribunal is subject to the rules of natural justice: s 38(2) of the Act. Nevertheless, it will not be in every case where proceedings were heard in the absence of a party, that there will have been a breach of procedural fairness. Rule 35 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) applies to proceedings in the Consumer and Commercial Division (and this was such a proceeding) and provides, in effect, that the Tribunal may hear and determine proceedings in the absence of a party who has failed to attend a hearing, if the Tribunal is satisfied that notice of the hearing was duly served or duly attempted to be served on the party. Clause 9 of the Civil and Administrative Tribunal Regulations 2013 (NSW) provides that the Tribunal may set aside a decision of the Tribunal that was made in the absence of a party, if the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put. Due to the existence of these rules and regulations, in the usual case, a party will not be denied procedural fairness merely because the proceedings were determined adversely to them in their absence. [28] The appellant's contention is that despite having notice of the hearing, due to her ill health and personal circumstances, she was unable to avail herself of the opportunity to be heard and therefore, in the circumstances, was denied procedural fairness. Further evidence [29] Here, in order to demonstrate that there has been a denial of procedural fairness, the appellant seeks to adduce medical evidence that was not before the original decision maker. As noted by the Appeal Panel in Yuen v Thom [2016] NSWCATAP 243 at [14]-[20], where an Appeal Panel is not determining an appeal by way of a new hearing (pursuant to s 80(3) of the Act) the appeal is akin to a rehearing and if appropriate to the grounds, the Appeal Panel may receive further evidence. [30] Appeals on questions of law do not readily lend themselves to the receipt of further evidence, as the appeal is limited to the particular question of law. The question of law is the subject matter of the appeal: see Ferella v Chief Commissioner of State Revenue (NSW) [2014] NSWCA 378 at [22]. In many cases, error of law will be established solely on the material before the decision maker (such as where the exercise of discretion has miscarried): House v The King (1936) 55 CLR 499 at 504-5. However, in Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [13]-[14], a majority of the Full Court of the Federal Court of Australia held, in the context of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), that an appeal on a question of law concerning the denial of procedural fairness may warrant the receipt of evidence that was not before the original decision maker, in order to prove the denial of natural justice. [31] The Appeal Panel accepts that where the question of law is whether or not there has been a denial of procedural fairness, it may be appropriate to look at material that was not before the original decision maker: this may be the only way to prove the breach. This is for the reason that whether there has been a denial of procedural fairness depends on all the circumstances: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26]. There are a myriad of cases concerning appeals on the grounds of a breach of procedural fairness that suggest as much. For instance, in Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [9], [13] and [26], the Full Federal Court received evidence to establish the breach of procedural fairness, namely that the applicant received the hearing notice two days after the hearing date and had to seek help to read the letter due to his illiteracy. In Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127 at 129, a single Judge of the Federal Court received evidence from the Post Office to establish that the applicant had not received an adjournment notice in the mail. [32] In some of the authorities concerning procedural fairness, the material that could demonstrate the breach of procedural fairness was with the Tribunal at first instance, but through error or inadvertence was not provided to the original decision maker: for example in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 the applicant had provided notice of his illness, and a request for adjournment to the Registry, but this was not provided to the decision maker. However, in other cases (such as where the hearing notice goes astray) the error was unknown and unknowable by the Tribunal: see, for example, Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127; Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28. [33] What emerges from a review of authorities is that, in order to demonstrate breach of procedural fairness, it is necessary to point to something outside the control of the party, which led to the denial of procedural fairness. It would not, for example, be sufficient if the party, having notice of the hearing, simply decided to not attend the scheduled hearing. [34] An appeal on the grounds of breach of procedural fairness is unlikely to succeed when the party had notice of his or her unavailability and through contumelious or dilatory conduct failed to appear. Where a party becomes aware of his or her unavailability for a scheduled hearing, it is appropriate to seek an adjournment and put forward appropriate evidence to justify the application for an adjournment. … [36] As already noted, where a party is aware that he or she is unable to attend a scheduled hearing it is incumbent on that party to seek an adjournment and file appropriate evidence to support such an adjournment. In the event the adjournment is not granted, that party is expected to attend. Nevertheless, it must be accepted that where the adjournment application is due to ill health, there may be cases where the applicant is unable or incapable of acquiring the requisite evidence in time...
2. In this case, the Appeal Panel was provided with documents from the appellant concerning his communications with the Tribunal relating to the adjournment application, along with some medical certificates. At least two of the medical certificates were not before the Tribunal at first instance. The medical certificates reveal that, at the date of the first instance hearing, the appellant was unwell, but his diagnosis had not yet been made. He was hospitalised shortly after the hearing and underwent a surgical procedure shortly thereafter. The Appeal Panel is satisfied that the medical evidence was not reasonably available to him prior to the hearing.
3. The Appeal Panel is satisfied that the ground relied upon, that there has been a denial of procedural fairness due to the appellant's unavailability due to ill health, warrants receipt of the further evidence going to the health of the appellant at the relevant time.
4. The respondent did not seek to cavil with either the reception of the new evidence or its veracity, but relied on the appellant's previous dilatory conduct to urge the Appeal Panel to dismiss the appeal. We consider this below.

The Respondent's Submissions

1. The respondent submits that the Appeal Panel ought to not allow the appeal as there have already been significant delays; and in the interests of finality, the matter ought not to be agitated again.
2. The respondent points to earlier dilatory conduct of the appellant including failing to file written evidence or submissions ahead of the hearing and on previous occasions either causing or contributing to delays of the hearing. The appellant accepts that at least on one occasion he was responsible for causing a delay, when he was on his honeymoon and did not attend a hearing. However, the prior dilatory conduct does not impact upon the question of whether the appeal might be meritorious. Further, the respondent did not suggest the delay resulted in irreparable prejudice, as opposed to inconvenience and a costs burden of having to prosecute the case again.
3. The respondent also points to the fact that, at the first instance hearing, expert evidence was provided and therefore there was a proper basis for the decision made at first instance. Notwithstanding that the matter was determined originally on the basis of expert evidence, the Appeal Panel accepts that by the hearing being conducted in the absence of the appellant, the appellant missed an opportunity to put his case to the Tribunal and put questions to the respondent's expert which conceivably may have affected the outcome.
4. The respondent also points to the fact that at the relevant time the appellant did not have the appropriate license, a fact which the appellant does not deny. The respondent does not contend, however, that this renders the appeal futile.

Consideration

1. The question for the Appeal Panel is whether the appellant had a reasonable opportunity to be heard. This depends primarily on his explanation for failing to attend on the last occasion. As mentioned above, the Tribunal was aware of an adjournment application, but stated that no medical evidence had been provided to support it. The appellant's evidence (referred to further below) is equivocal on when the first medical certificate was filed. As appears from the Decision at first instance, the medical certificate was not before the first instance decision maker. In those circumstances, it was reasonable for the Tribunal to refuse the adjournment application. Without a compelling reason to adjourn, the Tribunal could be satisfied that the appellant had been given a reasonable opportunity to present his case.
2. The Appeal Panel however accepts, from the evidence received on appeal, that on the morning of the hearing the appellant contacted the Tribunal and advised that he was unwell and could not attend the hearing. The Registry asked him to provide a medical certificate. That medical certificate was provided to the Tribunal, apparently on 13 July 2016 (that being the day after the hearing - albeit the appellant maintained at the hearing of the appeal that the medical certificate had been provided on the day of the hearing). Subsequently, the appellant provided further medical certificates: relevantly, one under the letterhead Healthscope which indicates that he was admitted to hospital on 13 July (the day after the hearing) and that at least by 16 July he had not yet been discharged. That document indicated that he had a surgical procedure performed on 14 July. The Appeal Panel accepts this to be the case and the respondent did not seek to refute that information. Further, the respondent did not cavil with the appellant's submission that this medical procedure explained his absence from the first instance hearing.
3. The respondent contended that even if the appellant had appeared at the hearing the expert evidence was compelling and the appellant would not have succeeded. However, as the appellant's contention is that neither he nor a sub-contractor were responsible for the defective conduct, his evidence to that effect may have impacted upon the Tribunal's orders. Further there may have been questions put to the expert that could have affected the outcome.

Conclusion

1. The Appeal Panel is satisfied that the appellant had a compelling reason to not attend the hearing and that by holding the hearing without him he was denied an opportunity to present his case: an opportunity that may have affected the outcome.
2. As mentioned above, the Regulations provide a mechanism for setting aside a Decision that has been made in the absence of a party. Such an application must be made within 7 days of the Decision, though there is an opportunity for the Tribunal to extend time: r 9(3) of the Regulations and s 41 of the Act. This power is "[i]n addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions…": r 9(1) of the Regulations. In this case, the medical evidence indicates that the appellant was hospitalised for a period immediately following the hearing and therefore not in a position to make an application to set aside the Decision within the requisite time. In another case, it may be necessary for an appellant who did not attend a hearing, to demonstrate why a set aside application was not made. As the parties did not address us on this issue and as there was evidence that the appellant was indisposed for a period after the hearing, we refrain from saying anything further about this.
3. Accordingly, the appeal is allowed. The matter is remitted to the Consumer and Commercial Division of the Tribunal to be reconsidered on such evidence as the Tribunal sees fit.

Orders

1. Appeal allowed.
2. The matter is remitted to the Tribunal to reconsider on such evidence as the Tribunal so allows.

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: 18 November 2016