Alagha v Consumer Claims Tribunals and 2 Ors [1999] NSWSC 1139 (25 November 1999)

Last Updated: 3 December 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Alagha v Consumer Claims Tribunals & 2 Ors [1999] NSWSC 1139 revised - 03/12/99

CURRENT JURISDICTION: Administrative Law

FILE NUMBER(S): 30048/99

HEARING DATE{S): 18 November 1999

JUDGMENT DATE: 25/11/1999

PARTIES:

Gabriel Michel Alagha

(Plaintiff)

Consumer Claims Tribunals

(First Defendant)

Jose and Marta Sergio

(Second Defendants)

JUDGMENT OF: Master Harrison

LOWER COURT JURISDICTION: Consumer Claims Tribunal

LOWER COURT FILE NUMBER(S): BLI98/224

LOWER COURT JUDICIAL OFFICER: Referee

COUNSEL:

Mr W S Veitch

(Plaintiff)

SOLICITORS:

N/A

CATCHWORDS:

Consumer Claims Tribunals

Denial of natural justice

ACTS CITED:

Consumer Claims Tribunals Act (NSW) 1987 (as amended)

Suitor's Fund Act (NSW) 1951 (as amended)

Consumer Claims Act 1998

DECISION:

see para 22

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

ADMINISTRATIVE LAW DIVISION

MASTER HARRISON

THURSDAY, 25 NOVEMBER 1999

30048/99 - GABRIEL MICHEL ALAGHA v

CONSUMER CLAIMS TRIBUNALS & 2 ORS

JUDGMENT (Quash orders of Consumer Claims Tribunals;)

denial of natural justice)

1 MASTER: By amended summons filed 13 August 1999 the plaintiff seeks firstly, a declaration that a Referee of the Consumer Claims Tribunal, in making an order under s 30(a) of the Consumer Claims Tribunals Act (NSW) 1987 (as amended), denied the appellant natural justice in respect to two (2) items of his determination dated 21 June 1999; secondly, an order that the two (2) items under appeal be referred to an independent arbitrator for hearing, determination and final award; and thirdly, that costs of the appeal by way of an order under the Suitor's Fund Act (NSW) 1951 (as amended). The plaintiff relied on his affidavit sworn 12 July 1999. The defendant filed a submitting appearance. Mr Sergio appeared at the hearing but took no active role aside from giving evidence on one issue.

2 Mr Gabriel Michel Alagha the appellant in these proceedings is a builder, and a civil and structural engineer. He was the respondent in a claim before the Consumer Claims Tribunals. The proprietors of the premises Jose and Marta Sergio were the claimants. They claimed for loss of interest due to delay in completing work which was the subject of a contract between the parties. They also claimed for costs of repair of defects allegedly due to poor construction.

3 The appellant submitted that he had been denied natural justice in relation to two (2) items which appear in the Referee's published reasons of 21 June 1999. They are those which appear under the headings "defective concrete work and footing system".

4 In relation to defective concrete work the Referee stated:

"The Claimant maintains that a substantial area of the concrete paving is defective to the extent that it will have to be replaced for a quoted price of $5,000.00 (Ex 24). In support of the Claim there were presented both photos and an expert report from Mr Peter Martin (Ex 7).

The Respondent acknowledged a problem with a small area of the concrete but stated that the quoted cost to repair was excessive.

I prefer the evidence of the Claimant as supported by their expert. In my view the concrete is proved to be defective and the reasonable cost of the necessary repairs is $5,000.00. This amount is transferred to the summary."

5 In relation to the footing system the Referee stated:

"There was insufficient evidence presented by the Respondent to persuade me that in the circumstances he is entitled to any of the monies claimed. The Claimant denied that there had been any discussion in respect of having to pay extra and, in any case, on the evidence presented by the Claimant I am not persuaded that the Claimant received any extra benefit from the Respondent over and above what the Respondent was liable to provide under the terms of the original contract."

The Law

6 On 1 March 1999 the Consumer Claims Tribunals Act 1987 was repealed by the Consumer Claims Act 1998. The Consumer Claims Act 1998 commenced on 1 March 1999. By virtue of Schedule 1 to the Consumer Claims Act 1998, the Consumer Claims Tribunals Act 1987 applied to matters that had not been finally determined by the Consumer Claims Tribunal. These proceedings fall under the 1987 Act.

7 The plaintiff relied on s 12(2)(b)(ii) of the Consumer Claims Tribunals Act 1987 which gives this court the jurisdiction to grant relief in relation to the hearing or determination of the claim if a party has been denied natural justice. No appeal lies to this court where errors of fact or law have occurred.

8 At the outset, it is helpful to set out some of the provisions of the Act. The Tribunal is not constrained by the rigour of the court room. In a sense, its function is to mete out rough justice or at least a less than perfect form of justice in an economical way appropriate for disputes within the limits of its jurisdiction. Evidence before the Tribunal must be relevant to the determination of a claim (s 23(1) of the Act and must be given on oath or statutory declaration (s 23(2) - s 23(3)) 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 23(4) - see also s 29(4)). I shall return to discuss s 23 in more detail later in this judgment. The Tribunal must conform to the rules of natural justice but, broadly speaking, has control of and responsibility for its own procedures (s 17(1)). Its business is conducted in private (s 22(1)). There is no requirement that Referees constituting the Tribunal be legally qualified. The orders of the Tribunal must, in its opinion, be "fair and equitable" (s 31(1)). The tribunal has no power to award costs (s 28). Pursuant to s 29 of the Act the Tribunal is obliged to use its best endeavours to bring the parties to a settlement before making any order.

9 In Hutley v Meigan & Ors (1997) ASC 65-370, Rolfe J referred to the often quoted and, if I may respectfully say so, the helpful comments of Hunt J (as he then was) in Singer v Statutory and Other Officers Remuneration Tribunal (1986) 5 NSWLR 633 and those of Simpson J in Archcom Pty Limited v Consumer Claims Tribunal & Ors (NSWSC, 29 September 1995, unreported) which deal with the nature of the proceedings in the Consumer Claims Tribunal.

10 The Tribunal has been established to deal with small claims in a relatively informal and expeditious manner. As Hunt J said in Singer at p 635:

"The Consumer Tribunal Act 1974 has set up a system for the speedy and inexpensive disposal of certain claims, limited in amount, arising out of contracts for the supply of goods or the provision of services by a person carrying on (or holding himself out as carrying on) the business of supplying such goods or providing such services. The tribunal hearing such claims is constituted by a referee, who need not have (and who in many cases does not have) legal qualification."

11 As Simpson J said in Archcom at p 12 after referring to the remarks of Hunt J:

"Those remarks were made in the context of the predecessor of the Act, a 1974 Act by the same title, but they apply equally to the Act. Underpinning the Act is a policy of providing expeditious access to an inexpensive and informal process for the resolution of consumer disputes involving relatively small amounts of money. Speed and economy are to be accompanied and (it is hoped) often achieved, by informality."

12 Her Honour continued, at pp 13-14:

"The intention of the legislature, in creating these tribunals as a forum for the resolution of disputes involving relatively small amounts of money was the achievement of expeditious and inexpensive justice between the parties while maintaining a proper regard for, and protection of, the rights of the parties to the dispute. The difficulty, as I see it, lies in striking the correct balance between those two goals. Speedy and inexpensive solutions may be inimicable to the protection of rights. There is no necessary relationship between the factual or legal complexity and the quantum of a claim but legal rights and obligations remain at the heart of the tribunal's jurisdiction. Although a tribunal is enjoined to make such orders as will, in its opinion, be fair and equitable to all parties to the claim (s 31(1)), those orders must be grounded in legal liability."

13 Her Honour thus stressed the need for "justice" and the "protection of rights".

14 In relation to natural justice, Professor S A de Smith, Judicial Review of Administrative Act, 2nd ed., pp 180-181 has stated:

"Natural justice generally required that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position: (a) to make representations on their own behalf; or (b) to appear at a hearing or inquiry (if one is to be held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet."

15 In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 the High Court held that the duty to accord natural justice is a duty to act fairly. In the normal course, a party to judicial proceedings (as are those in a tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing such as to give it a reasonable opportunity to meet that case and to advance its own. These statements are similar to those expressed by Professor de Smith and referred to earlier. Brennan J (as he then was) at p 628 stated:

"A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interest which the repository of the power proposes to take into account in deciding upon its exercise."

16 In relation to procedural fairness, Mason J stated in Kioa that the law had 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 the rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case (pp 454 and 455).

17 In relation to the defective concrete work, the appellant complained that he had never seen an experts report of Mr Peter Martin nor a quote from Arinaldo's Concreting dated 13 May 1999 in the sum of $5,000. The appellant has sworn an affidavit to that effect. However, his version of not being supplied with Mr Martin's report is at odds with the account given by the Referee and Mr Sergio. The Referee's notes of 18 November 1998 at p 4 refer to the expert's report (Ex 7 in those proceedings) and stated that Mr Alagha was given a copy of it (Ex B in these proceedings). In the Referee's notes of 24 March 1999 (Ex C in these proceedings) there is a statement that he reminded the parties that they had access to all of the bundle of documents. There are references in the Referee's notes concerning the appellant's behaviour before the tribunal which show that it was less than exemplary. Mr Sergio gave evidence that when he received Mr Martin's report he spoke to the appellant by telephone. The appellant asked Mr Sergio to fax a copy of the report. Mr Sergio said he faxed a copy of Mr Martin's report to the appellant within a few days. I prefer the evidence of Mr Sergio and the Referee. I find that the appellant did receive the experts report well before the hearing in March 1999. The appellant submitted that the quote should have been in the form of an affidavit. Section 23 of the Act provides:

"Taking of evidence

(1) At the hearing of a consumer claim, evidence relevant to the determination of the claim may be given orally or in writing.

(2) If evidence at the hearing of a consumer claim is to be given orally, it must be given on oath.

(3) If evidence at the hearing of a consumer claim is to be given in writing, it must be given either on oath or by statutory declaration, as the giver of evidence prefers.

(4) A tribunal is not bound by the rules or practice of evidence and, subject to subsections (2) and (3), can inform itself on any matter in such manner as it considers appropriate."

18 It would also seem that the appellant had ample opportunity to inspect the quote and raise any objection he had in relation to it being admitted into evidence. The appellant submitted that the quote should have been in the form of a statutory declaration in accordance with s 23(3). The appellant was given an adjournment for a short period on 23 March 1999. If he had any difficulty meeting the quote he could have sought a further adjournment.

19 I he had any concerns he could have raised them at hearing. There is no evidence that he did so. He did however take the opportunity to submit to the Referee, that the quote to repair was excessive. I do not think that either of these complaints give rise to a denial of natural justice.

20 The last complaint in relation to the defective concrete work was that the Referee preferred the evidence of Mr Martin the claimant's expert, rather than that of the respondent (appellant in these proceedings). It was open to the Referee to prefer one view over the other. There was no error of law or fact. Even if there had been an error of law or fact it is not reviewable by this court - see s 12(2)(b)(ii) of the Act. The appellant appeared at the tribunal and was able to effectively prepare his own case and answer the case he had to meet and was given an opportunity to make representations on his behalf. There was no denial of natural justice.

21 In relation to the appellant's complaint concerning the Referee's findings on the footing system, they amount to assertions that the Referee made an error of fact or law. There is no denial of the rules of natural justice. The appellant has been unsuccessful. The decision of the Referee of 21 June 1999 is affirmed. The amended summons is dismissed. The appellant is to pay the second defendants' costs.

22 The orders I make are:

(1) The decision of the Referee of 21 June 1999 is affirmed.

(2) The amended summons filed 13 August 1999 is dismissed.

(3) The appellant is to pay the second defendants' costs.

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LAST UPDATED: 03/12/1999