Park v The Consumer Claims Tribunal [1999] NSWSC 74 (11 February 1999)

Last Updated: 7 May 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Park v The Consumer Claims Tribunal [1999] NSWSC 74

CURRENT JURISDICTION:

FILE NUMBER(S): 30122/97

HEARING DATE{S): 10/02/99

JUDGMENT DATE: 11/02/1999

PARTIES:

Jonathon Park

The Consumer Claims Tribunal

JUDGMENT OF:

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mrs Gilmour

Mr Davidson

SOLICITORS:

Davidsons Solicitors

Crown Solicitor

CATCHWORDS:

Consumer Claims Tribunal

Denial of natural justice - not demonstrated

ACTS CITED:

Consumer Claims Tribunal Act 1977

DECISION:

Amended Summons dismissed; Plaintiff to pay costs of the intervenor

JUDGMENT:

- 11 -

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DOWD J

11 February 1999

30122/97

PARK v CONSUMER CLAIMS TRIBUNAL

REASONS FOR JUDGMENT

1 This is an appeal instituted by Summons seeking to quash or set aside the decision of a referee appointed by the first defendant, The Consumer Claims Tribunal in a claim between the plaintiff, Jonathon Park, and the second defendant, Dr Kristina Morawetz ("Morawetz") and the third defendant Dr Ina Van der Merwe ("Van der Merwe"). Each of the first, second and third defendants filed submitting appearances, except as to costs. The Minister for Fair Trading ("the Minister") was granted leave to intervene and the appeal was conducted therefore on behalf of the plaintiff and the Minister as parties. The tribunal whose decision the Amended Summons appeals is a tribunal constituted under the Consumer Claims Tribunals Act 1987 ("the Act") which constitutes a referee, the tribunal, to hear and determine a consumer claim. There is no appeal or review of the decision of the tribunal that is relevant in this application, however the tribunal is obliged under s.17 of the Act to comply with the rules of natural justice. It is for a contended breach of the rules of natural justice in the tribunal's finding against the plaintiff in the Tribunal hearing that gives rise to this appeal: Kioa v West (1985) 169 CLR 550.

2 One of the particular circumstances to be taken into consideration in its determination of an allegation of breach of natural justice is the functioning of a tribunal set up by the Act. The tribunal is an inexpensive and simple procedure for determining complaints expeditiously without considerable expense. There is a registry established for facilitating the operation of tribunals and for the keeping of records. The referee has control, subject to the requirement of conforming with the rules of natural justice to set up his own procedures and is given wide powers of amendment and adjournment. The Act subject to certain restrictions precludes legal representation and requires the hearings to be heard in private and that the evidence may be given orally or in writing. A tribunal is not bound by the rules of practice or of evidence and can inform itself on any matter as it considers appropriate. There is a power for tribunals to re-hear matters. No costs may be awarded.

3 The subject matter of this appeal was a tribunal hearing before referee, Tom Kelly who determined a claim brought by the plaintiff which claim was heard before the tribunal on three separate hearings, the first on 19th June 1997, the second on 23rd June 1997 and the third on 10th October 1997. The tribunal gave its decision on 31st October 1997.

4 The original claim was brought against Morawetz as an employee of Van der Merwe in respect of dental treatment provided to the plaintiff on 8 October 1996 and contended that Morawetz mis-handled the slow speed hand piece onto the plaintiff's lower teeth causing him pain and suffering, costs and expenses as a result of damage to his teeth.

5 At the hearing of the 19 June 1997, the plaintiff made an oral statement, Morawetz made a brief statement and the matter was adjourned to 23 July 1997. The plaintiff said that at that hearing Morawetz asked for a copy of a receipt from a Dr Erskine-Smith which the Referee declined. The plaintiff said that that refusal indicated to him that the parties were not allowed copies of the evidence of the other side. At the hearing on 23 July 1997 the plaintiff tendered two reports from Dr Erskine-Smith, a report from Dr Stoermer, Dr Godfrey, records of the Royal North Shore Hospital and a statutory declaration by the plaintiff. Morawetz and Van der Merwe tendered a statutory declaration of S. Ashton a dental nurse, two declarations of Morawetz and a declaration of Van der Merwe. They made an oral reply to the plaintiff's evidence and used the tooth mould, which was produced in evidence. On 24th July Morawetz sent a letter to the tribunal requesting copies of those reports. On 29th July the plaintiff sought access to the teeth mould. On 30th July the tribunal decided to supply copies of the plaintiff's reports to Dr Morawetz but decided that the plaintiff could not take the teeth mould and only inspect it at the tribunal registry. On 4 August the reports of Drs Stoermer, Godfrey and Erskine-Smith were sent by the tribunal to Morawetz.

6 On 8 September 1997 the plaintiff says that he made a call to the registry as one of a large number of calls that he made to the registry. The plaintiff contends that he requested documents furnished by Morawetz and Van de Merwe on the 8th September 1997. He did not however, subsequently refer to this request in correspondence except somewhat obliquely in a statutory declaration which he filed on 12 October 1997. He says that he was told by a registry officer that he was not entitled to have copies of the evidence of Morswetz and Van der Merwe. I should note that evidence by way of statutory declaration included the evidence of Morawetz pointing out the dental problems including evidence of grinding. Her evidence also was that a splint may be necessary to prevent his teeth from continually grinding.

7 At the third hearing on 10 October 1997 the plaintiff tendered a report of Dr Ashton, Dr Churchin, Dr Godfrey and his own statutory declaration. The second and third defendants tendered a report of Dr Harty. The total hearing time of the hearings was some five hours. Subsequent to the hearing on 12 October 1997 the plaintiff furnished a statutory declaration to the tribunal and subsequently wrote letters to the tribunal on 22 and 24 October 1997. The tribunal replied on 28 October and gave a decision on 31 October 1997.

8 In his statutory declaration of 12 October 1997 the complaint of the plaintiff was that he had been refused copies of the Morawetz and Van der Merwe evidence by the tribunal however Morawetz and Van der Merwe received copies of his dentist reports. The plaintiff said he was not allowed to have copies of "their materials" to prepare for the third hearing. He then sought copies of the material and wished the tribunal to reserve their decision until they had been obtained. In the tribunals letter prior to judgment the referee declined to re-open the hearing.

9 The referee dismissed the plaintiffs claim. After reviewing the evidence he commented that the expert evidence called on behalf of the plaintiff in relation to the quite substantial chip to the plaintiffs lower incisor relied on the history given to the plaintiff's experts by the plaintiff. He reviewed the evidence of Morawetz who denied the dropping of the drill and noted that she gave her opinion that grinding can be caused by stress. The dental nurse gave evidence which corroborated that of Morawetz. The evidence called by Morawetz and Van der Merwe included evidence of a Dr Harty which said that the loss of the tooth structure could be caused by biting on hard food or grinding and that he did not consider the loss of tooth structure was consisted with the removal of tooth structure by a dental drill. The referee accepted the dental nurses' evidence as a reliable witness. The referee commented adversely on the plaintiff's credibility and his agitation level and the way in which he presented his evidence. The referee also commented adversely on the variations in the evidence given by the plaintiff and in his statements and various documents.

10 In the referee's reasons for judgment he adverted to the fact that he had "declined to supply copies of material supplied by the respondents." The declaration by Mr Harty was produced at the final hearing and the plaintiff was given an opportunity to read it and comment thereon. The referee found that neither the plaintiff's evidence nor that of his experts satisfied the referee that Morawetz was negligent or caused any deterioration to the plaintiff's bottom incisor.

11 The complaint of the plaintiff as articulated by Mr Davidson before me in the hearing was first, that the plaintiff was denied by the tribunal copies of the evidence provided on behalf of Morawetz and Van der Merwe in his letter of 17 June 1997 and at the hearing on 19 June 1997 and in his telephone call of 8 September 1997. Secondly, the plaintiff claims that at the third hearing insufficient time was afforded to permit the plaintiff an opportunity to examine the material filed, particularly the evidence of Warwick Harty, refuting the evidence filed on behalf of the plaintiff, and thirdly, that he was not afforded an opportunity to reply to that statutory declaration. There was considerable evidence before me by way of affidavits and their exhibits and correspondence at the hearing and the subsequent correspondence between the various parties. It is clear, and I accept this, that the plaintiff feels a sense of grievance that the two dentists were supplied with his evidence and he was not supplied with theirs. He feels that there is an injustice in that the parties were not treated in the same ways.

12 It is accepted by Mr Davidson on the plaintiff's behalf that the tribunal is obliged to furnish to those against whom a complaint is made, copies of the material. It must be remembered that Consumer Claims Tribunals are intended to be informal proceedings and that the intention is to expeditiously and inexpensively resolve disputes. The tribunal gave some five hours of hearing. Although the plaintiff said that he was intimidated by the time provided to him in examining particularly Warwick Harty's evidence, which was supplied at the hearing of 10 October 1997 in answer to his own, which evidence refuted the contention that the damage to the tooth was done by some action of Morawetz, he does not allege in evidence or otherwise that there was any action on the part of the referee to prevent him from reading the material.

13 Although I accept that he felt intimidated by the fact that people were looking at him as he read, he does not allege and cannot point to any action which denied him an opportunity to properly examine the material. The plaintiff is an articulate, forthright and assertive person who does not appear to me to be readily intimidated, although I accept that he felt so intimidated.

14 In the light of the function of the tribunal in its speedy and expeditious disposal of claim (Singer v Statutory and Other Officers Remuneration Tribunal (1986) 5 NSWLR 633 at p.635), I do not feel that any evidence has been put before me to show that the plaintiff was denied natural justice in not being furnished material which he said he sought. I do not accept his evidence in the light of his cross-examination and the lack of clear corroboration in the material, written and filed by him, that he requested written material, in his telephone call of 8 September 1997 but even if he had the relevant, significant evidence of Warwick Harty had not yet been filed before the tribunal. Even if the June and July material had been furnished at that stage, this would not have altered the result.

15 The rules of natural justice apply to the tribunal, not the registry. It is not the registry's function to provide that material. I do not accept that at the third hearing there was insufficient time afforded to the plaintiff to examine the material. He says that he was given either between five and thirteen minutes to examine it although there is no evidence that his examination of the material was terminated in any way. The termination was of his own choosing.

16 It is conceded that the plaintiff did not seek an adjournment to answer Warwick Harty's report.

17 His request for the material being forwarded to him in his statutory declaration of 12 October was denied, being a decision made by the tribunal after the conclusion of the hearing. His application did not set out that he had been prejudiced by the evidence of Warwick Harty he was simply seeking the furnished material, on the basis that the two dentists had had it furnished to them and that he should have theirs furnished to him. The plaintiff's reasons furnished to the referee of 10 October 1997, in the light of the fact that the hearing had been concluded, did not show that if he had been granted an opportunity to furnish additional material a different result would have ensued. There was nothing in that statutory declaration that would reasonably support a request for further re-opening of the hearing and it has not been shown to the Court that any denial of natural justice occurred thereby.

18 In the High Court in Stead v SGIO [1986] HCA 54; (1986) 161 CLR 141 held that not every departure from the rules of natural justice at a trial will entitle an aggrieved party to a new trial. All that an appellate needs to show is that the denial of natural justice deprived him of a successful outcome. It is necessary for the appellate court to find that a properly conducted trial could not possibly have produced a different result.

19 In terms of the reasons put forward by the plaintiff in his statutory declaration of 12 October he did not therein clearly articulate that he required an opportunity to refute the evidence of Warwick Harty. I do not see any basis in the light of the evidence, at that stage, before the tribunal and in the articulated reasons furnished by the tribunal, that even evidence that completely answered Warwick Harty's evidence could have altered the evidentiary balance in favour of the plaintiff. The issue of grinding had arisen at the second hearing. There was ample opportunity for the plaintiff to answer that. The evidence of grinding as a basis for the chip was also adduced at the third hearing. The plaintiff has not shown that even if he had been furnished an opportunity to produce further evidence that he could have produced evidence to show that the grinding could not have produced the chip therefore even if the referee had breached the rules of natural justice the plaintiff has not shown that such evidence would have produced a different result. The onus is on the plaintiff to show evidence which would have negatived the evidence of Morawetz, in the first place, and in particular Warwick Harty at the final hearing. I do not find that he was denied the opportunity to produce the evidence but. He had not shown this court, the evidence that he would have produced to change the result. He therefore fails the test in Stead.

20 There was no evidence before the tribunal either at the hearing or subsequently that the plaintiff was under any disadvantage and there is no obligation on the tribunal under the Act to furnish copies of any statutory declarations filed by a respondent: Hodgekinson v Companies Auditors and Liquidators Board (1994) 50 FCR 504. And Archcom Pty Ltd v CCT, unreported decision of Simpson J of this Court of 29th September 1995.

21 In my view the plaintiff has failed to establish any denial of natural justice in respect of any of the three claims made by out by him. The Amended Summons is therefore dismissed. An application has been made by the first defendant for costs. In the light of the plaintiff failing to succeed in this hearing I can see no basis for making a finding other than in terms of the normal principle that costs should follow the event and therefore I allow the first defendant costs against the plaintiff. I make no order for costs in respect of any of the defendants.

22 The orders that I make therefore are as follows;

1. The Amended Summons is dismissed.

2. The plaintiff should pay the costs of the intervener.

3. I make no order as to the costs of the defendants.

oOo

LAST UPDATED: 04/05/1999