Wollongong City Council v Papadopoulos

Parties to the appeal

1. Until 1 July 2019, the owner of the land licensed to Ms Papadopoulos was a reserve trust established pursuant to Part 5 of the Crown Lands Act 1989 (NSW). That Act was repealed by the Crown Land Management Act 2016 (NSW) with effect from 1 July 2018. However, on 1 July 2019, the reserve trust was abolished at the expiry of the "continuation period" under cl 10A(6) of Schedule 7 of the 2016 statute, and by reason of cl 11(5), the Council acquired all of its assets, rights and liabilities.
2. For those reasons, it was appropriate for the Council to be the sole appellant, although a different entity was the landowner when Ms Papadopoulos was in possession and when she was evicted, and during the trial. Orders were made regularising this when the appeal was heard.

Denial of procedural fairness

1. Ground 3 of the further amended notice of appeal is as follows: 3. Contrary to what his Honour said at [52] of his reasons, the appellant was denied procedural fairness and the primary judge acted without regard for the provisions of s 144(4) of the Evidence Act 1995 (NSW) when he determined to use the Australian Taxation Office's benchmarks and an arbitrarily fixed amount as the value of rent free accommodation of the living quarters attached to the Kiosk by way of judicial knowledge without: (a) giving the appellant the opportunity to be heard; and (b) without regard for the appellant's written submissions on the question which were actually made. Note this ground involves a challenge to a finding of fact."
2. I do not accept that this ground is made out.
3. It is necessary to consider, and with some precision, each of the events which occurred after judgment was reserved.
4. First, there was the ex parte communication from the judge's Associate to counsel on the afternoon of Thursday, 21 June 2018. The email stated on its face that Ms Papadopoulos had not been included in the communication. (During the trial, Mr Matters had told the Court that he believed that Ms Papadopoulos did not have an email address.) The email also stated on its face that the request was for counsel to "advise of a suitable time and date between 22 June 2018 and 2 July 2018 inclusive". On no view was the email an invitation to make submissions. Rather, the email was of a purely administrative nature, asking counsel to advise of a suitable time and date in a six day period. The subject matter of the further hearing was described as "to address the Court on the use of public records for the purpose of computing lost earnings".
5. Secondly, no response was made by counsel to that email, either on Thursday 21 June, or Friday 22 June, or the weekend or at any time on Monday 25 June before 6:00pm in the evening. There is no evidence that counsel was unavailable, or had failed to notice the email.
6. Thirdly, the absence of a response led to a second email from the Court, this time copied to counsel's clerk, at 4:08pm on 25 June 2018, reiterating that the primary judge "would like to hear from you before he publishes his reasons in the above matter". Once again, the email made it plain that Ms Papadopoulos had not been included in the communication, and explained why ("I see from the Court file that there is a telephone number for Ms Papadopoulos. I shall make contact with her after I hear from you"). The Court was offering any of the remaining four days that week, including from 9:00am on any of those days, if that were suitable.
7. Once again, it was plain that the email was purely administrative, not calling for any substantive response, but merely the availability of counsel.
8. Fourthly, counsel's response, sent at 6:02pm on Monday, 25 June 2018, took a different approach. Counsel did not provide any availability at any of the times which had been proffered by the Associate or the Court. Counsel attached a short written submission contending against there being any further hearing at all, and alternatively, contending that any hearing should not occur prior to Ms Papadopoulos's submissions being supplied. Counsel copied into his email both Ms Papadopoulos and Mr Matters.
9. In this Court, senior counsel for the Council submitted that the response made on 25 June 2018 "probably comes within correspondence and a submission to the trial judge suggesting a timetable that affords procedural fairness". This is not so. The Council's belated response to the Court's requests was inappropriate. There was no leave granted to make further submissions. The request from the Court was administrative for the determination of a date. The Court was evidently seeking to minimise the inconvenience to counsel in attempting to find a date that was available, and to do so in a way which did not involve the potential for confusion to Ms Papadopoulos.
10. Senior counsel's submission was unsupported by authority. It is contrary to a deal of authority, of this Court and the High Court, deprecating the provision of supplementary written material after the conclusion of oral argument, without leave. McHugh ACJ, Gummow, Callinan and Heydon JJ described doing so as "unsatisfactory" and "impermissible" in NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48 at [192]; see also Eastman v DPP (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [28]-[31] and [143] and Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 at [111]. This Court has repeatedly stated that doing so is "misconceived" and should not occur: Notaras v Waverley Council [2007] NSWCA 333; 161 LGERA 230 at [147]; Bull v Lee (No 2) [2009] NSWCA 362 at [8]-[9]; McCrohon v Harith [2010] NSWCA 67 at [136]-[137]; Bales v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 at [57]-[59] and Amaca Pty Ltd v Hicks [2011] NSWCA 295 at [41].
11. The circumstances in this trial were clear. No leave was given at all for further written submissions. All that counsel was asked to do, and was required to do, was to identify a time or times for a further hearing. The submissions should not have been drafted or sent.
12. The position is a fortiori where counsel's opponent is unrepresented. Some unrepresented litigants are themselves prone to provide material to a court without leave after judgment is reserved. Their culpability may be less than that of a legal practitioner, for they may not be expected to be familiar with basic precepts of practice which have been stated and restated by the High Court and this Court.
13. It may be assumed that the view of the Council was that the hearing contemplated by the primary judge was inappropriate. But the occasion to make that submission was in open court, in the presence of the other side, not by unilateral written submission made without leave.
14. Further, counsel's primary obligation was to assist the Court. That duty has long been described as "paramount" or "overriding". In Rondel v Worsley [1969] 1 AC 191 at 227, Lord Reid said: "[Counsel] has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests." The same principles are stated in Giannarelli v Wraith (1988) 165 CLR 543 at 555-556, 572; [1988] HCA 52, and D'Orta-Ekenaike v Victoria Legal Aid (2015) 223 CLR 1; [2005] HCA 12 at [111]. The same principles are reflected in the Legal Profession Uniform Conduct (Barristers) Rules 2015: see r 23, "A barrister has an overriding duty to the court to act with independence in the interests of the administration of justice" and r 4(a), "barristers owe their paramount duty to the administration of justice".
15. Counsel had an obligation to respond to the primary judge, and to do so promptly. He was required to do so even if he considered, or was instructed, that it was contrary to the interests of his client. There was no explanation given as to why counsel did not respond promptly to the judge's Associate's first email until a reminder email was sent some four days later. Nor was there an explanation as to why counsel did not respond directly to the primary judge's request that he nominate a date for hearing. In particular, there was no suggestion that counsel was unavailable on all of the six days nominated by the primary judge.
16. Contrary to the Council's submissions, what the primary judge said at [52] of his reasons is factually correct. It is true that the primary judge's Associate invited counsel to attend Court and make oral submissions in relation to the use of public records. Paragraph 52 (set out at [33] above) is incomplete, insofar as it does not mention the fact that counsel was invited not once but twice to do so. The paragraph is also in substance correct to record that counsel declined that invitation. The primary judge nominated no fewer than six dates for that hearing to occur. The Court, on the following Monday, offered four dates, including outside ordinary Court hours, for that to occur. Counsel's response declined to accept any of the dates which had been proffered to him on either of those invitations.
17. It is true that [52] is incomplete, insofar as the paragraph fails to summarise counsel's substantive response, which was that there should be no further hearing, and indeed that it was wrong for the primary judge to suggest that there should be, with alternative submissions that if there was a hearing it should be after Ms Papadopoulos had supplied her submissions, and in any event, after the days nominated by the primary judge. The fact that the primary judge did not record the fallback submissions made without leave on behalf of the Council does not make [52] erroneous.
18. Much reliance was placed by the Council on the short exchange which occurred on 31 July 2018. Counsel protested that: "So in my respectful submission, I didn't decline an invitation to come back to Court, I said [Council's] position is that your Honour would not entertain, or, rather would not take into account public records, but in any event, oral submissions should be next week." That is a somewhat skewed summary of a response which declined every proffered date. It is true that the primary judge is recorded as saying that he had misread counsel's email, but it is far from clear that what was said by the primary judge after the event is materially relevant to whether there was a breach of procedural fairness. Whether or not there was a breach of the obligation to accord procedural fairness is determined objectively, on the basis of the facts established at the time of the breach.
19. One reason for prominence being given to what was said on 31 July 2018 was to sustain the submission that, not until that occasion did the Council become aware of the mistake which, so it was said, the Court had made, and by that stage, the 14 days for which Uniform Civil Procedure Rules r 36.16 made provision had elapsed. This submission is unsound, for the following reasons: 1. First, this is a question of fact, and is unsupported by any evidence. 2. No later than 17 June 2018, instructions had been sought and obtained and counsel had filed a notice of motion seeking a stay. An element of that application was identifying error (or arguably error) in the judgment of the Court. There is no reason to doubt that one of the errors in fact articulated on 31 July 2018, the alleged denial of procedural fairness, had in fact been appreciated when the motion was filed. That was within the 14 day period. 3. Indeed, the fact that the primary judge had used benchmarks published by the ATO, and had purported to apply s 144 of the Evidence Act, was obvious on the face of his Honour's reasons, and must have become known to the Council shortly after those reasons were received. Likewise, the fact that the primary judge had recorded the invitation extended to the Council, and Council's declining to accept it, was also obvious on the face of the reasons. It may be noted that the reasons occupy a mere 9 pages. 4. In any event, the power in r 36.16 is supplemental to the separate power conferred by r 36.15, to vary or set aside judgments or orders made "irregularly, illegally or against good faith". Council's complaint in ground 3, if made out, falls within r 36.15. Senior counsel expressly withdrew a submission that had been made that r 36.15 was subject to the same time limits as r 36.16. The withdrawal was properly made.
20. It follows that I do not accept that there was a denial of procedural fairness in relation to the use of the ATO's benchmarks. If the Council declines the invitation to be heard, twice proffered, it cannot later complain that it had no opportunity to be heard.
21. The use by the primary judge of an amount of $300 per week as the value of rent-free accommodation falls into a different category. This did not depend upon any document (whether or not in evidence). It is probable that the further hearing which was declined by the Council would have addressed the calculation of rent. In any event, no separate submissions were made as to this being an independent basis to conclude that there had been a denial of procedural fairness.
22. Finally, I do not accept the final aspect of this ground, that no regard was had to the Council's "written submissions on the question which were actually made". The substance of those submissions was not to accede to the invitation to be heard. That was accurately recorded in [52] of the reasons of the primary judge.
23. This ground is not made out.

Errors in the calculation of damages

1. Ground 2 is in the following terms: "2. The learned primary judge erred in: (a) using untendered benchmarks published by the Australian Taxation Office to calculate the plaintiff's loss; and (b) adopting an arbitrarily fixed amount as the value of rent free accommodation in the living quarters attached to the Kiosk; and (c) making a finding of an entitlement in the respondent to repayment of her security deposit in the sum of $8,580 forfeited by the second appellant, in the absence of evidence to sustain such a finding, to calculate the plaintiff's loss."
2. The appellant's original submissions in support of its appeal, dated 21 November 2018 and signed by junior counsel and a senior counsel who did not appear at the appeal, annexed a two page extract purporting to be a printout from the ATO website from a directory described as "Home / Business / Small Business Benchmarks / In Detail / Benchmarks A-Z / R-Z / Restaurants". The extract included the following advice: "Restaurants Business in this industry sell food and drink, generally for consumption on the premises. Performance benchmarks These benchmarks use information reported on tax returns and activity statements for the 2015-16 financial year, and are updated each year. This is the most current data. The benchmarks show ranges of business income to business expenses that you can use to compare your performance against similar businesses in your industry. Key benchmark range Cost of sales to turnover is the key benchmark range for this industry - it is likely to be the most accurate when predicting business turnover. If you don't report cost of sales, or only report a small amount, use total expenses to turnover as your key benchmark range instead. Generally, you should fall within the key benchmark range for your particular annual turnover. Falling outside the key benchmarks for your industry may indicate your business has room for improvement. It may also be worthwhile checking you reported all income and accounted for any trading stock you may have used for private purposes, as these can affect your results. Certain businesses can use amounts we accept as estimates, check if they are available for you."
3. The document proceeded to identify, inter alia, the ratios of total expenses as a proportion of turnover, labour as a proportion of turnover, and rent as a proportion of turnover, for restaurant businesses with various amounts of turnover. For businesses with a turnover between $65,000 and $500,000, the benchmark ratios were: 1. total expenses/turnover: 81%-90%; 2. labour/turnover: 18%-28%, and 3. rent/turnover: 13%-19%.
4. However, senior counsel who appeared at the hearing in this Court disavowed any reliance upon those pages. Indeed, he went further, and said that no judicial notice could be taken of those pages.
5. That cannot be right. I have no doubt - not least because the document was annexed to submissions signed by two barristers in support of the Council's appeal - that the ATO publishes on its website a series of "Small Business Benchmarks", one of which is directed to "Restaurants", and does so for the purposes stated in that document to assist people operating restaurants and their accountants. The benchmark in that document for the financial year ended 30 June 2016 included that for restaurants with a turnover of between $65,000 and $500,000, the rent should be between 13% and 19% of that turnover, while the total expense should be between 81% and 90%.
6. Submissions in this Court proceeded on the basis that s 144 of the Evidence Act entirely supplanted the position at common law. That proposition is supported by what was said in Gattellaro v Westpac Banking Corporation [2004] HCA 6 at [17]; 78 ALJR 394 at [17] and Aytugrul v The Queen (2012) 247 CLR 170; [2012] HCA 15 at [21], and I proceed, favourably to the Council, on that basis.
7. Section 144 provides: "144 Matters of common knowledge (1) Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally, or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The judge may acquire knowledge of that kind in any way the judge thinks fit. (3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account. (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced."
8. It seems plain to me, as I would presume it seemed perfectly plain to counsel who signed the appellant's written submissions, that the accuracy of the printout containing the ATO's restaurant benchmarks is capable of verification by reference to the ATO website, which is a document the authority of which cannot reasonably be questioned. I note that the underlying webpage (which is a file) is both "any record of information" and "anything from which … images … can be reproduced … with the aid of [a computer]" within the meaning of "document" in the Dictionary of the statute. Subsection 144(1) is satisfied. So too is s 144(4). The requisite opportunity to be heard was given, for the reasons stated in relation to ground 3.
9. However, it is one thing for the Court to acquire knowledge, pursuant to s 144, of the ATO's publication; it is another thing entirely for the benchmark ratio for restaurants with a turnover between $65,000 and $500,000 to be used in order to determine the kiosk turnover of which Ms Papadopoulos was in large measure deprived.
10. For one thing, there are restaurants and there are restaurants. The ATO document categorises restaurants by turnover, but there must still be a very wide range of restaurants with a turnover of between $65,000 and $500,000. Some would be located in high-rental areas (such as inner city buildings and major shopping centres). On the other hand, many suburban and regional restaurants might pay little by way of rent. There must also be a large number of restaurants operating from owned, as opposed to rented premises, for which the rent would be nil, which would prima facie have the effect of reducing the average rent of all restaurants.
11. Secondly, the benchmarks are designed to check the reliability of the figures actually obtained from a restaurateur. This is obvious from their name, and if it were not, it is what the ATO explains on the document itself. They are not designed to derive what the profit would have been on the basis of rent alone. This is also obvious from the document. For example, the ratio of total expenses to turnover ranges from 81%-90% for restaurants with a turnover between $65,000 and $500,000. That is a large range. Consider two restaurants with the same turnover but which are at the extremes of the range. The gross profit of the first (19% of turnover) is almost double the gross profit of the second (10% of turnover). That is to say, the margin of one business is almost double the margin of the other. How can such a benchmark be used with any confidence to estimate profit from expenses?
12. Thirdly, the use by the primary judge of the ATO benchmark was internally contradictory. The calculations by the primary judge produced a turnover of $714,131. But that calculation was based upon the benchmark for restaurants with a turnover of no more than $500,000. The ATO benchmark for the ratio of profit to turnover from $500,000 to $2 million was 9%-14%. Had any figure within that range been applied, the profit would have been less than the primary judge derived. Had the midpoint (11.5%) been used, then the result would have been around a third less.
13. All of this confirms what to some might seem obvious, namely, that while the document published by the ATO may be a useful tool for restaurant operators who know their actual rent and actual turnover and actual profit and can compare the ratios with the benchmarks, they do not meaningfully permit the calculations employed by the primary judge.
14. A fourth difficulty with the calculations of the primary judge is the treatment of taxation. The largest component of the award of damages is the lost profit, which the calculated on the basis of net amounts, after tax. It is not completely clear how $1,991 per week before tax has been reduced to a net weekly amount of $1,486, nor how $597.40 per week has been reduced to a net weekly amount of $550.40, but it is clear that a tax-free threshold has been applied (because of the minor change to the smaller weekly amount). No submissions were directed to the tax treatment of the components of the judgment, and I do not express any view as to whether this component of the economic loss should have been calculated using before or after tax figures. However, there was some evidence that the business was operated through a company. Ms Papadopoulos's affidavit included the statement that "This loss of business has placed my company in jeopardy of liquidation". A document dated 1 December 2016 referred to Mr Matters writing "as her company secretary in regard to her corporate and business affairs". I do not understand that companies enjoy a tax-free threshold.
15. In light of those errors, and the absence of any other probative evidence, the Council submitted that the loss alleged was "speculative in nature" and that Ms Papadopoulos had failed to prove on the balance of probabilities that she sustained some loss or damage in accordance with the approach adopted in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 355; [1994] HCA 4. It was the Council's submission that in the absence of evidence proving some loss or damage, Ms Papadopoulos was only entitled to nominal damages, relying on Brennan J's judgment in Sellars at 359: "In contract cases, a plaintiff may be entitled to nominal damages for loss of the opportunity promised even though the plaintiff fails to prove what, if any, value performance of the unfulfilled promise would have had (Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286 at 301, 312)."
16. It is tolerably clear from the transcript that there was likely to have been evidence of loss available to Ms Papadopoulos, but that the manner in which she sought to tender it led to its being rejected. Counsel for the Council accepted that there was little to no assistance offered to Ms Papadopoulos as a litigant in person with respect to how the matter was to be run at trial. Counsel also properly accepted that no assistance had been offered to Ms Papadopoulos with respect to the need to file a notice of contention should she have wished to challenge the rejection of the evidence prepared by her accountant and the underlying documents, some of which may well have been admissible as business records.
17. It is unnecessary in light of these difficulties, and it is inappropriate in the absence of the underlying documents and submissions on the point, to identify precisely how damages might be calculated. The transcript suggests that there was a voluminous bundle of primary financial material, which the primary judge invited, and which Ms Papadopoulos sought to tender, to which the Council's objection was successful. In the absence of a notice of contention from the order rejecting the tender, that material was not before this Court, and so it is impossible to express a view as to whether every document sought to have been tendered was not admissible as a business record. It is sufficient to observe that it would be wrong for this Court to accede to the Council's submission that Ms Papadopoulos should receive nominal damages and there should be no remitter. I am not close to being satisfied that there would be no substantial wrong or miscarriage if a judgment for nominal damages was entered, so as to avoid the need for a new trial. In addition to the inherent improbability that Ms Papadopoulos was incapable of establishing any loss, there was in fact testimonial evidence from an employee of Ms Papadopoulos that the shop took $250,000 in the peak months of December and January, while a letter from Ms Papadopoulos dated 31 October 2016 (tendered by the Council and without limitation) estimated that "my losses are approximately seven thousand dollars per week".
18. Given that conclusion, it is not necessary to address the smaller component of the judgment, directed to the value of the loss of residential accommodation.
19. Similarly, for the reasons set out above and in light of the orders I propose below, it is not necessary to address the security deposit in the sum of $8,580, which was part of the judgment, which the Council accepted it should pay in its notice of appeal and amended notice of appeal but which it belatedly claimed in its further amended appeal had been provided by way of bank guarantee. If there continues to be a dispute about this, then that too will be a matter for the District Court to determine on remitter.

Conclusion and orders

1. For those reasons, although the Council has failed on most of the issues advanced in this Court, the appeal must be allowed and the matter remitted to the District Court for retrial, confined to the issue of damages, unless the parties can resolve their dispute consensually. The Council's acceptance of liability makes it appropriate to substitute an unquantified judgment in favour of Ms Papadopoulos. Given the regrettable way in which the documents sought to be tendered by Ms Papadopoulos came to be excluded, neither party should be confined to the evidence adduced at the first trial.
2. The Council has succeeded in setting aside the money judgment against it. However, it has failed in its primary submissions in this Court. I see no reason for Ms Papadopoulos to bear any of the Council's costs in this Court, in circumstances where the occasion for Council's appeal has been Council's own failure to provide the primary judge with the assistance he sought and to which he was entitled. Nor is there any occasion to interfere with the order made by the primary judge that the Council pay Ms Papadopoulos' expenses as agreed or determined by his Honour.
3. It would be surprising in the light of such evidence as is available if in fact Ms Papadopoulos suffered no loss as a result of the wrongful conduct of the Council. The costs of the new trial will be in the discretion of the court on remitter, but it may be expected that if it is necessary for there to be a further hearing, which results in an award of damages, then Ms Papadopoulos would be entitled to the costs of that hearing. If she is unrepresented, those costs will be limited to her expenses and disbursements.
4. It is to be expected that the Council and those advising it will be conscious of the public funds and resources which have been consumed to date by this litigation, and will take especial care to ensure that such dispute as remains is resolved in accordance with the provisions of Pt 6 of the Civil Procedure Act 2005 (NSW) and the ethical constraints to which they are subject.
5. I proposed the following orders:
6. Appeal allowed in part.
7. Set aside the judgment entered in favour of Ms Papadopoulos on 6 July 2018 in the amount of $147,835.32, and in lieu thereof enter judgment in favour of Ms Papadopoulos against the Council.
8. Remit the proceeding to the District Court for further hearing, confined to the issue of damages.
9. No order as to the costs in this Court, with the intention that the Council bear its own costs of the appeal.
10. McCALLUM JA: I agree with Leeming JA.

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: 19 July 2019