Walsh, Aida v Concrete Concepts

Grounds of review 7The grounds of review are firstly, that the Tribunal denied the plaintiff procedural fairness by concluding that the plaintiff had been given every opportunity prior to the hearing to submit her evidence; secondly, the Tribunal denied the plaintiff procedural fairness by issuing orders at a directions hearing on 19 March 2012 that required all evidence to be relied upon by the plaintiff at the hearing to be served and filed with the Tribunal by the same day; thirdly, the Tribunal denied the plaintiff procedural fairness by issuing orders for the preparation and service of evidence that were ambiguous and misleading; and fourthly, as a self represented litigant the plaintiff was not made sufficiently aware of the kind of evidence that was relevant to properly propound her case and to the extent therefore that relevant material was not disclosed pursuant to s 28(5)(b) of the Consumer, Trader and Tenancy Tribunal Act 2001 to enable the relevant facts and issues to be determined by the Tribunal; and fifthly, the Tribunal failed in its obligation under s 28(5)(b) to ensure that as far as practicable all relevant material was disclosed to the Tribunal. 8While the further amended summons seeks to set aside the determination of Member Tiga dated 24 July 2012, the earlier determinations of Members Howe and Charles were the subject of challenge. I shall refer to all three determinations.

The Tribunal generally 9At the outset, it is helpful to set out some of the provisions of the Act. The objects of the Act are to establish a Consumer, Trader and Tenancy Tribunal to determine disputes in relation to matters over which it has jurisdiction; to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair; to enable proceedings to be determined in an informal, expeditious and inexpensive matter; and to ensure the quality and consistency of the Tribunal's decision-making. The functions of the Tribunal are to adjudicate disputes between consumers. The Tribunal is not constrained by the rigour of the courtroom. Its objects are to ensure that the Tribunal is accessible, its proceedings are efficient and effective, its decisions are fair and to enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner. 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 (s 28). 10Evidence must be given on oath or statutory declaration (s 39(1)) but the Tribunal is not bound by the rules or practice of evidence and the Tribunal may inform itself on any matter in such manner as it considers appropriate (s 28(2)). The Tribunal must conform to the rules of natural justice, but broadly speaking, has control of and responsibility for its own procedures (s 28(1) and (2)). Its business is conducted in public (s 33). Section 35 provides that the Tribunal must ensure that each party in any proceedings is given a reasonable opportunity to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise); and to make submissions in relation to the issues in the proceedings. Normally, a party to the proceedings has carriage of his or her own case and is not entitled to be legally represented (s 36(1)). The Tribunal has the power to award costs (s 53), but usually each party bears its own costs. Pursuant to s 54 of the Act, the Tribunal is obliged to use its best endeavours to bring the parties to a settlement before making an order. The Tribunal has a power to correct its decision (s 50) and the Registrar can issue a certificate, which operates as a judgment to recover amounts ordered to be paid (s 51). I shall refer to ss 28 and 35 in more detail later in this judgment.

Background 11In October 2010, Ms Walsh (the plaintiff) entered into an agreement with Concrete Concepts (the defendant) to pave her driveway for the sum of $4800 plus GST. 12Ms Walsh was dissatisfied with the work that was performed by Concrete Concepts. As she was unable to resolve the dispute, she contacted the department of Fair Trading to arrange an inspection of the work that had been completed by the builder. 13On 27 October 2011, an inspector from Fair Trading NSW completed a complaint inspection advice. 14On 20 January 2012, Ms Walsh commenced proceedings against Concrete Concepts in the Tribunal seeking an amount of $23,000 comprising of an amount for material and labour to rectify the defective work. 15On 19 March 2012 the matter was listed before the Tribunal for directions before Tribunal Member Howe. 16On 19 June 2012, Member Charles dismissed Ms Walsh's claim. 17Ms Walsh applied to have the matter reheard pursuant to s 68 of the Consumer, Trader and Tenancy Tribunal Act. On 24 July 2012, Member Tiga refused the application for a rehearing. 18I shall refer to the three determinations of the Tribunal in chronological order.

(i) The directions hearing on 19 March 2012 before Member Howe 19On 19 March 2012, the matter was listed before Member Howe for directions. Ms Walsh appeared in person. Mr Roditis a director appeared on behalf of Concrete Concepts. At this directions hearing Member Howe asked Ms Walsh what it was that she claimed was defective about the instalment of the pavers. Ms Walsh outlined what had occurred at the site inspection, with the inspector from the department of Fair Trading and the advice the inspector had given her regarding the dispute. She said she had some documents she wanted to rely upon at the hearing. 20Member Howe asked the plaintiff the following: MR HOWE: How are you going to prove that he [the builder] is liable? MS WALSH: Because the Fair Trading came. They already inspected, and also I have paid independent builder who come, that that's the recommendation. 21At that stage, the plaintiff indicated she was relying on two reports, the independent builder's report (the Rentokil report) (Ex A) and the report of Mr Patrick Daly dated 25 November 2011 (the Fair Trading report). The Rentokil report stated in relation to the driveway, "The paving bricks/blocks are uneven in some sections and relaying is recommended to provide a level surface." The Fair Trading report stated, "In my opinion, the work is defective." Ms Walsh also indicated that she was relying upon two quotes from Amber as to the cost of replacement pavers ($9,944 plus $220.80) and the other a quote from New Edition Constructions dated 1 March 2012 to carry out the paving work in the sum of $9,572.40 plus GST $1,063.60 (total $10,636). 22Mr Roditis outlined his case to the Member as follows. "MR RODITIS: The basis for the applicant's complaint is that the pavers she supplied have been installed on a compacted paving sand bed, not a sand and cement bed. I've got the manufacturers recommendations which state that the exact pavers she supplied state that our installations are correct. I've also got photos and video footage of the job taking a week ago, and there's about four cracked pavers in 75 square metres. MR HOWE: Four cracked pavers." 23The Tribunal Member did not examine the contents of either parties' documents. Both parties advised the Member that they could serve their documents "today", namely 19 March 2012. 24Mr Roditis outlined the evidence he intended to rely upon. 25Member Howe then made the following orders. "1. By Determination of member, on 19 March 2012 the hearing was adjourned to a date to be fixed by the Registrar. 2. The parties are encouraged to obtain advice and to have further settlement discussions prior to the next hearing. The applicant is to advise the Tribunal in writing immediately if the matter settles and if the application is withdrawn. 3. The applicant shall provide to the respondent and the Tribunal, a copy of all documents on which the applicant intends to rely at the hearing by 19-Mar-2012. 4. The respondent shall provide to the applicant and the Tribunal, a copy of all documents on which the respondent intends to rely at the hearing by 19-Mar-2012." 26Later, the Tribunal advised both parties that this application (together with a cross application by Mr Roditis seeking payment of the GST component of the work done) was fixed for hearing on 19 June 2012. 27On 30 May 2012, Ms Walsh forwarded an additional document to the Tribunal and indicated that she would like to be considered at the hearing on 19 June 2012. It is a quotation from the Gardenedge Landscapes (undated) that itemises the work that needs to be done and the costing.

(ii) The hearing before Member Charles on 19 June 2012 28Ms Walsh appeared unrepresented. Mr Paul Roditis appeared on behalf of the defendant. At the outset, Member Charles outlined the procedure to be followed at the hearing. Then Member Charles asked Ms Walsh if she could identify the documents she relied upon to support her case. She replied: "MS WALSH: I submitted the original copy of the quotation that Paul has given me prior to entering in a contract. I also submitted the contract that was signed by me and Paul Roditis when we entered in the contract, a copy of the building report when the job was done by an independent building inspector." 29She also informed Member Charles that she had four quotations to rely upon. Later during the hearing the following exchange took place. "MR CHARLES: You keep talking about the - look, I'm sorry. You keep talking about the Fair Trading. I told you. All Fair Trading says, "In my opinion, the work is defective." Is there another Fair Trading report I'm not looking at. Mr Patrick Daly dated 25 November. Is there something else? MS WALSH: That's all I'm relying on. MR CHARLES: That's all he says. How does that help you? MS WALSH: That's how he explained to me. I'm not an expert. That's how they explain to me. MR CHARLES: Did you get some legal advice before you brought this case? MS WALSH: The thing is I don't know where I'm going to stand. All I'm understanding is there is a problem in my driveway. I went to approach Fair Trading. Fair Trading came in and investigated the situation, and they said, "Yes, it is defective." So where will I go?" 30The Member also considered to the contents of the Rentokil report where it stated in relation to the driveway "The bricks/blocks are uneven in some sections and relaying is recommended to provide a level surface." 31The defendant presented his case. Briefly, it was to the effect that he paved 76 to 78 metres of paving (Ms Walsh claimed it was 103 metres) there were only four bricks that were cracked, he had followed the manufacturers instructions for the installation of those pavers and Council approved the paving. He produced photographs that depicted the paving on the driveway. Mr Roditis also drew to the Member's attention that the quote Ms Walsh proffered from Gardenedge Landscaping states the work that is to be performed is "supply and install paving on a sand bed". He stated that it was exactly what he did and what Ms Walsh contended should not have been done (T25). 32At the conclusion of the hearing, the Member's reasons for decision were brief. He stated: "1. The application is dismissed because having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established."

The statutory framework of the CTTT 33The procedure of the Tribunal and the opportunity for the parties to present their case are set out in ss 28 and 35 of the Consumer, Trader and Tenancy Tribunal Act. They read: 34Section 28 of the Consumer, Trader and Tenancy Tribunal Act relevantly reads: "28 Procedure of Tribunal generally (1) The Tribunal may, subject to this Act, determine its own procedure. (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 procedural fairness. (3) 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. (4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand: (a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings. (5) The Tribunal: (a) is to act as expeditiously as is practicable, and (b) is to ensure, as far as practicable, 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 in proceedings 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) ... (f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and ..." 35And s 35 relevantly reads: "Opportunity for parties to present case The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity: (a) to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise), and (b) to make submissions in relation to the issues in the proceedings." 36Section 35 provides that the Tribunal "must ensure" that each party is given "a reasonable opportunity" to present its case. There are provisions which allow the Tribunal a significant degree of flexibility in adapting its procedures to the exigencies of the case in determining the manner in which the proceedings will be conducted. Nevertheless, those provisions should not be construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness - see Italiano v Carbone & Ors [2005] NSWCA 177 at [105] and [106].

Was there a failure to afford the plaintiff procedural fairness 37Counsel for the plaintiff submitted that despite the plaintiff advising the Tribunal at the directions hearing before Member Howe of her intention to rely on the Fair Trading report, the Tribunal did not advise that this was not evidence that the Tribunal would generally accept as being a basis upon which it would make the orders that the plaintiff sought. According to the plaintiff, the failure of the Tribunal to draw her attention that the evidence she intended to rely upon was not the type of evidence that the Tribunal would place any weight on was a failure of the Tribunal to ensure that the plaintiff was, as far as practicable, aware of the procedure of the Tribunal. 38Further, counsel for the plaintiff submitted that the orders made by the Tribunal at the directions hearing on 19 March 2012, closing the evidence on the same day as the first return date before the Tribunal, reinforced the plaintiff's mistaken belief that the material that she had advised the Tribunal that she intended to rely upon at hearing would be evidence that would be capable of propounding her case. In general, he says, persons appearing before the Tribunal should not have to seek and pay for legal advice. 39So far as Member Charles's determination is concerned, counsel for the plaintiff submitted in oral submissions that if Member Charles determined that the plaintiff had not discharged her onus of proof, it may have been appropriate to offer her the benefit of an adjournment in order to give her an opportunity for her to rectify her case before he dismissed her application. This ground of review had not been articulated in either the grounds of review nor the plaintiff's written submissions. 40The solicitor for the defendant submitted that the Tribunal is not obliged to advise a party of any weaknesses in their case. If the Member was obliged to identify the defects in evidence and advise a party what he or she has to do to win the case the defendant says that the Member steps into the role of an advocate. According to the defendant, where the line between advocacy and impartiality of the Member becomes blurred it results in procedural unfairness being suffered by the defendant. The solicitor for the defendant agrees that while there is an obligation on the Tribunal to explain the procedures to litigants, it cannot be expected that a Member becomes an advocate for a party in a matter before the Tribunal. 41Counsel for the plaintiff focussed on the Tribunal's obligations to firstly, to take such measures as are reasonably practicable to ensure that the parties in any proceeding understand the procedures of the Tribunal and any decisions or ruling made by the Tribunal that relates to the proceedings (see s 28 (4) (b)); and secondly, s 28 (5) (b) of the Consumer, Trader and Tenancy Tribunal Act which he submitted places a positive obligation on the tribunal to ensure, as far as practicable, 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 proceeding. 42In support of these propositions above, the plaintiff relied upon Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. In Ekermawi, a self represented litigant commenced proceedings in the Administrate Decisions Tribunal under s 93A of the Administrative Decisions Tribunal Act 1977. The plaintiff required leave to proceed with his action in the ADT. The plaintiff had proceeded to hearing under the erroneous belief that leave had in fact been granted and that at the hearing other matters would be ventilated. Leave had not been granted and the plaintiff did not advance any evidence or submissions as to why leave should be granted. Leave was subsequently refused. The plaintiff then made an application to the Supreme Court pursuant to s 69 of the Supreme Court Act 1970. 43Schmidt AJ (as she then was) in Ekermawi concluded that the discretion of the presiding member to allow leave should be viewed in accordance with the requirements of s 73 of the Administrative Decisions Tribunal Act. 44After having regard to the requirements of s 73 of the Administrative Decisions Tribunal Act, her Honour concluded: "Once the Tribunal had come to appreciate that the plaintiff had a significant misunderstanding as to what has occurred at the hearing, to take no steps at all to advise him of his misunderstanding, but to decide the matter against him, without giving him an opportunity to be heard at all on the question of whether the leave sought should be refused, because the complaint had been adequately dealt with by another process, was to deny him natural justice." 45According to counsel for the plaintiff, the conclusions reach by Schmidt AJ in Ekermawi is in accordance with the High Court's decision in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 where Gleeson CJ observed: "A common form of detriment suffered where a decision maker has failed to take a procedural step is loss of an opportunity to make representation." 46Further, the plaintiff submitted that had the Tribunal complied with its obligations pursuant to ss 28(2), (3), (4) and (5) she would have been made aware that the material she intended to rely upon was not what the Tribunal would accept as being relevant to the propounding of her case and the failure of the Tribunal to adhere to its own statutory requirements has in effect left the plaintiff without a proper opportunity to put her case. 47The plaintiff's counsel submitted that s 73 of the Administrative Decisions Tribunal Act is in the same terms as s 28 of the Consumer, Trader and Tenancy Tribunal Act. The solicitor for the defendant disagreed with this proposition. It is my view that s 73 is similar. Section 73(4)(c) of the Administrative Decisions Tribunal Act obliges the Tribunal to take such measure as are reasonably practicable to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. Section 73(5)(b) says that the Tribunal is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all the relevant facts in issue in any proceedings. In Ekermawi the Tribunal did not inform him that it was necessary for him to obtain leave to appeal. This was a procedural step he was required to satisfy which was not explained to him. 48As previously stated, the plaintiff submitted that the material she intended to rely upon as evidence at the directions hearing, and the subsequent closing of the evidence after that date, led her to the erroneous belief that what she intended to rely upon was relevant, and evidence capable of properly propounding her case. According to the plaintiff, the failure of the Tribunal to ensure that she understood the procedures of the Tribunal as to relevant evidence, and the failure of the Tribunal to ensure that all relevant material was disclosed to the Tribunal, denied the plaintiff procedural fairness. 49At the directions hearing, the Member is obliged to take such measures as are reasonably practicable to ensure that the parties understand firstly, the nature of the assertions made in the proceedings and the legal implications of those assertions and the procedure of the Tribunal and any decision or ruling made by it; and secondly, the Member is also obliged to ensure, as far as practicable, 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. 50Was the Member obliged to consider the strengths, weakness and adequacy of the evidence of each party on the issues in dispute and advise them in relation to these issues? The Member is allowed a significant degree of flexibility in adapting its procedures to the exigencies of the case in determining the manner in which the proceedings will be conducted, provided procedural fairness is afforded to both parties. I accept that if one party had not produced any evidence at all in support of their case, the Member's obligation may have extended to the requirement that he or she explain to that party that should they wish to proceed to a hearing and not obtain evidence to support their case, this will result in their claim being unsuccessful at the hearing. 51At the directions hearing, both parties had evidence on liability and quantum. The Member had encouraged both parties to seek advice (see order 2). It is my view that contrary to the plaintiff's counsel's assertions, the plaintiff did not hold the view that the evidence had been closed at the conclusion of the directions hearing. The reason for holding this view is because after the directions hearing concluded, she obtained two new quotes which she relied upon at the hearing. It is my view that Member Howe afforded Ms Walsh procedural fairness at the directions hearing. 52So far as the decision of Member Charles is concerned, ss 28 and 35 do not go so far as to obligate the Member, once he or she reaches the view that one party's case is doomed to fail due to inadequacies in their evidence, to offer an adjournment to that party. There are a number of factors to be considered, one of which is whether or not to grant an adjournment. Overall, the Member has to consider the interests of both parties and the objects of the Tribunal, and in so doing did not elect to offer Ms Walsh an adjournment. In these circumstances, Member Charles did not deny the plaintiff procedural fairness. 53There was no denial of procedural fairness by either Member Howe or Member Charles. It follows that these decisions should not be quashed.

(iii) The rehearing decision of Member Tiga dated 24 July 2012 54Section 68 of the Consumer, Trader and Tenancy Tribunal Act deals with rehearings. Section 68(2) sets out the grounds upon which a rehearing application may be made. They are that the applicant may have suffered a substantial injustice because firstly, the decision of the Tribunal in the completed proceedings was not fair and equitable, or secondly, the decision of the Tribunal was against the weight of evidence, or thirdly, significant new evidence has arisen (being evidence that was not reasonably available at the time the completed proceedings were being heard). 55Importantly, s 68(8)(c) provides that the Chairperson's decision on whether or not to grant a rehearing "is final and not subject to review of any kind". There are two conflicting decisions of this Court on this topic. In Mah v Consumer, Trader & Tenancy Tribunal & Anor [2005] NSWSC 476 Master Malpass (as he then was) at [21] to [23] stated that ss 65 and 67 of the Act have no application in relation to such a decision and that the legislature makes it clear that such a decision is to be final and not subject to review of any kind. This decision does not address s 69 of the Supreme Court Act. In Rowlands v Consumer, Trader & Tenancy Tribunal [2003] NSWSC 730 Gzell J referred to ss 65(1) and (3) and stated that it was open to argument that the plaintiff was denied procedural fairness in the refusal by the Tribunal to rehear the matter. 56Subsequently, the High Court has decided Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 in which the High Court discussed the concept of error of law on the face of the record at [78]-[89]. 57Suffice to say that without detailed submissions on this topic, I do not intend to decide whether or not this Court can entertain jurisdictional review in relation to a rehearing in the Tribunal. Hence, I will address the matters raised in the rehearing. 58On 9 July 2012, the plaintiff lodged an application for a rehearing in relation to the decision of Member Charles on 19 June 2012. Mr Roditis lodged an objection. 59Member Tiga stated in her written reasons that her reasons for not granting the rehearing dated 24 July 2012 are as follows: "Both parties were present at the hearing and gave evidence to the Tribunal. The presiding member's decision was based upon an evaluation of the evidence presented. Brief written reasons for the decision have been provided which set out the basis upon which the decision was made. The rehearing applicant states that she now has new evidence that was not reasonably available at the time of the hearing. The evidence obtained by the applicants is 'new' in the sense that they did not have it at the time the matter was determined by the Tribunal. But, as has been affirmed by the Supreme Court in Milstern Retirement Services Pty Ltd v Carton [2006] NSWSC 937, the rehearing provisions concerning 'significant new evidence' do not refer to a situation where the applicants now wish to rely upon evidence which could have been produced at the hearing. It is clear that the evidence now sought to be relied upon, a technical report, was evidence which could easily have been obtained with reasonable diligence prior to the hearing. This was a matter which was entirely within the control of the rehearing applicant who was given every opportunity prior to the hearing to submit her evidence." 60As previously stated, neither of the earlier determinations denied the plaintiff procedural fairness. The plaintiff relied upon the grounds of rehearing that the Tribunal Member did not have access to the NSW Fair Trading Commission file and she had new evidence that was not reasonably available at the time the proceedings were being heard. The Member decided that the further report was new evidence that could have been obtained prior to the hearing. There is no error in the Member's reasons on rehearing. 61The applications for judicial review are dismissed. The decision of Member Howe dated 19 March 2012, the decision of Member Charles dated 19 June 2012 and the decision of Member Tiga dated 24 July 2012 are all affirmed. The further amended summons filed 5 February 2013 is dismissed. 62Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the first defendant's costs as agreed or assessed.

The Court orders that: (1) The applications for judicial review are dismissed. (2) The decision of Member Howe dated 19 March 2012, the decision of Member Charles dated 19 June 2012 and the decision of Member Tiga dated 24 July 2012 are all affirmed. (3) The further amended summons filed 5 February 2013 is dismissed. (4) The plaintiff is to pay the first defendant's costs as agreed or assessed.

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: 26 February 2013