Yarraford Pastoral Company Pty Ltd v Wise

Principles of procedural fairness

1. The Tribunal is required to comply with the rules of natural justice, otherwise known as the rules of procedural fairness: NCAT Act, s 38(2). The classic statement of the rule is found in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 where Mason J said, at 584: The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.
2. One aspect of procedural fairness is the "fair hearing rule" which is re-stated in s 38(5)(c) of the NCAT Act. Under that provision the Tribunal is to "ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings."

Grounds of appeal

1. Yarraford did not submit that it had a "legitimate expectation" that the Tribunal would take into account the submission attached to its email. Rather, its case was that its interests were affected by the decision and it had not been given a reasonable opportunity to be heard. According to Yarraford, the Tribunal had misled it into assuming that electronic filing was permitted and that its submissions had been received and would be taken into account. It is not necessary in order for there to be a breach of procedural fairness for the Appeal Panel to find that the Tribunal misled Yarraford. The issue is whether the Tribunal gave Yarraford a "reasonable opportunity to be heard or otherwise have their submissions considered".

Evidence and findings

1. The evidence and submissions put forward by Yarraford in support of the appeal was that: 1. the directions of 9 February 2015 are silent on the matter of how the submissions should be filed and served; 2. the Tribunal routinely accepted correspondence from both parties by email; 3. the Tribunal was on notice that the submissions had been sent because: 1. the Tribunal sent an automatically generated email in response to the email of 6 March 2015 stating that the email "has been forwarded to the appropriate area for attention"; 2. Mr Wise's solicitor, W.A. Baxter & Co Pty Ltd, wrote to the Tribunal on 20 March 2015 confirming that the matter was before the Member to determine an application for costs, stating that each party had filed written submissions and requesting a further direction to file and serve submissions in reply.
2. In addition to those matters, the Appeal Panel drew the parties' attention to an email that the Registry wrote to Yarraford on 4 August 2014, responding to an email Yarraford sent on the same day attaching several affidavits relating to the substantive proceedings: "S 78 of the CTTT Act 2001 does not allow for the emailing of notices or documents in relation to CTTT proceedings including submissions, summons and evidentiary material. "Please send your notice of CTTT proceedings by post, fax or in person to a CTTT Registry.".
3. The references to the "CTTT Act 2001" and the "CTTT Registry" were out of date as the Consumer, Trader and Tenancy Tribunal had become a Division of NCAT on 1 January 2014.
4. We find that the parties routinely corresponded with the Tribunal by email.

Procedural rules about filing submissions

1. Clause 13(3) of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) sets out the means by which documents may be served on, given to or lodged with the Tribunal: A notice or document may be served on, given to or lodged with the Tribunal: (a) by leaving it at the Registry, or (b) by sending it by post to the Registry, or (c) by such electronic means as the Tribunal has made available for use for the service, giving or lodgment of notices or documents with the Tribunal.
2. Paragraphs 9 and 10 of NCAT Procedural Direction 1 - "Serving and Giving of Notice" repeats the substance of the Rules in relation to the serving and giving of notice: 9. A document can be lodged with the Tribunal by: (a) leaving it at a registry of the Tribunal; (b) sending it by post to a registry of the Tribunal; and (c) sending it by electronic means to the Tribunal if the Tribunal has made electronic lodgment available for that type of document and in the type of proceedings concerned. 10. If a person sends material by email or other electronic means when lodgment by these means is not available, the document will not be taken to have been lodged.
3. The direction in paragraph 10 of the Procedural Direction is repeated in the "Common Questions" section of NCAT's website: Can I email my documents and attachments back to NCAT? NCAT's system does not currently enable supporting material to be lodge electronically, i.e. by email. NCAT is working on changes to its systems to enable this to happen in the future. Please send your case-related documents by post, fax or in person to any NCAT Registry Office.
4. For certain kinds of proceedings, the NCAT Rules provide for documents to be served, given or lodged by electronic means: Electronic Transactions Act 2000 (NSW), Sch 1, cl 9; NCAT Rules, cl 9, 10. Electronic Case Management (ECM) was, and continues to be, available for use in relation to the kind of application Yarraford lodged in the Consumer and Commercial Division. But use of ECM is restricted to the originating application and response. Evidence and submissions cannot be lodged electronically.
5. In the decision awarding costs against Yarraford the Tribunal stated that, "No submission has been received from the applicant." We infer from that statement that Registry officers did not bring the email to the attention of the Tribunal Member. There is no evidence as to whether that was a deliberate decision because the submissions had not been filed in accordance with the NCAT Rules, or it was an oversight.

Consideration

1. Yarraford's interests were affected by the Tribunal's consideration of Mr Wise's application for costs. In those circumstances the hearing rule of procedural fairness requires that Yarraford be given a "reasonable opportunity to be heard or otherwise have their submissions considered". What amounts to a "reasonable opportunity" will depend on all the circumstances including the consequences for Yarraford of not having their submissions taken into account. The circumstances in this case include the fact that the Tribunal chose to determine the application for costs 'on the papers' and the practice and procedure of the Tribunal.
2. The consequences for Yarraford are that the Tribunal has made a costs order against it without taking into account its submission as to why it should not have to pay those costs. The Tribunal did not "hear" Yarraford on that issue despite the fact that it attempted to bring those submissions to the Tribunal's attention.
3. The Tribunal decided to determine the issue of costs 'on the papers': NCAT Act, s 50. The Tribunal may make such an order "if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal." When parties are not either physically present or participating by phone, there is no mechanism for ensuring that all the material a party assumes has been lodged, provided and served on another party has been received. In cases where there is no oral hearing, the integrity of the process requires that special care be taken to ensure that parties' submissions are taken into account.
4. The Tribunal made directions as to the filing and service of submissions on costs. Those directions did not state that the submissions had to be filed by any particular means but the NCAT Rules do not allow lodgement by email. Yarraford lodged its submissions by email before the due date. An automatically generated reply advised Yarraford that the email "has been forwarded to the appropriate area for attention" and "will be answered as soon as possible." It was not unreasonable for Yarraford to assume on the basis of that email, that its submissions would be taken into account. While Yarraford had been put on notice in August 2014 that affidavits filed by email would not be accepted, it was not legally represented at that time. The earlier email referred to s 78 of the Consumer Trader and Tenancy Tribunal Act 2000. That provision was repealed on 1 January 2014 and replaced with cl 13(3) of the NCAT Rules. Under those Rules the Tribunal may dispense with any requirement of the Rules: NCAT Rules, cl 5.
5. The Tribunal failed to take into account Yarraford's submission on the assumption that no submission had been received. The Tribunal did not reject the submissions because of non-compliance with cl 13 of the NCAT Rules. In circumstances where Mr Wise's application for costs was to be determined 'on the papers' and the Tribunal did not make it clear in the automatically generated email that its submissions would not be taken into account, there has been a "practical injustice" and the decision should be set aside: Re Minister for Immigration and Multi-Cultural and Indigenous Affairs, 214 CLR 1 at 14.

Orders 1. The decision of the Tribunal made on 27 March 2015 that, "The applicant shall pay the respondent's cost in this matter in the sum of $5,000" is set aside. 2. The requirement in Rule 13(3) of the Civil and Administrative Tribunal Rules 2014 as to the way a submission may be served on, given to or lodged with the Tribunal is dispensed with. 3. The Tribunal is to re-consider Mr Wise's application for costs taking into account the submissions of Yarraford Pastoral Pty Ltd provided by email on 6 March 2015 and any submission Mr Wise may be directed to lodge and serve in reply. 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: 22 September 2015