NSW Civil and Administrative Tribunal (NCAT) Refusal to Grant Adjournment – Appeal Allowed by Supreme Court on basis of denial of procedural fairness

30/11/2020

In the case of Hanson v Metricon Homes Pty Limited [2020] NSWSC 401 the Supreme Court has considered various obligations of Tribunal Members including failure to allow adjournments.  One of the general principles is Section 36 of the Civil and Administrative Tribunal Act (NCAT Act) which provides in essence, guiding principles that proceedings in the Tribunal are to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

Section 38 of NCAT Act provides that the Tribunal may determine its own procedures however those procedures include provision to cover:

(a)      The Tribunal taking reasonably practical measures to ensure that the parties to the proceedings understand the nature of the proceedings.

(b)      If requested to do so, explain to the parties any aspects of the procedure of the Tribunal that relates to the proceedings; and

(c)      To ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

The case concerned proceedings commenced by Metricon Homes Pty Limited (Metricon) v Mr & Mrs Hanson, the Owners of the property.  The Metricon proceedings were commenced in NCAT. 

The Owners subsequently filed a Defence to the Metricon proceedings. 

The Owners also filed in a separate proceedings (as is the procedure in NCAT), a cross claim against Metricon.

There had been various delays in the proceedings. 

There also had been unusual orders in relation to the appointment of an Expert (the Joint Expert) to make a determination on various issues.  However there were conflicting directions in relation to this aspect, either it was to be an expert determination not subject to any review or it was a determination subject to a possible further review.  The Joint Expert who was to provide the Report served it late namely, one business day prior to the hearing which was well outside the time provided for by directions of NCAT.  This caused some concern to the conduct of the proceedings. 

The lawyer who acted on behalf the Owners withdrew from the proceedings on the morning of the proceedings.  There was an Application for Withdrawal.  There was no request from the Senior Member as to the basis of the withdrawal and it was granted. 

It was clear that the Owners in effect, sought an adjournment on numerous basis including the basis that they had no representation, they had not prior to this point, seen the tender bundle in evidence, the Joint Expert’s Report had been served very late, the Owners had not had an opportunity to review and did not understand the basis of the Expert’s Report and further that Mrs Hanson was seriously unwell.  

There were robust discussions between Mr and Mrs Hanson and the Senior Member of the Tribunal as to how the matter would proceed.  It was clear that Mr and Mrs Hanson were unable to proceed.  The Senior Member at one stage indicated that he would proceed with the Builder’s claim and allow the Owners’ claim to be adjourned however at a later stage, both cases proceeded. 

It is the usual course where there is a Builder’s claim and Owners’ claim that both cases would proceed simultaneously and that evidence in one would be the evidence in the other, as there are interlocking factual matters that would be relevant to each of the Builder’s claim and the Owners’ claim.

An adjournment was not offered or granted.

The Senior Member noted that extensive delays to the date of the hearing and said:

“Unless you can tell me about some extraordinary circumstances why the matter shouldn’t go ahead today, I am minded to order that it should go ahead today because simply adjourning it and pushing it further into the future first because it’s inconvenient is not really in accordance with the guiding principles of the tribunal”.

The guiding principles of the Tribunal are those referred to in Section 36 as referred to above.

It became clear (based on the Transcript) that Mr and Mrs Hanson were unable to present their case as they wished, because they did not understand the procedures and other matters.  There was some encouragement by the Senior Member that the Owners could withdraw their claim and it could be dealt with separately.  Eventually the hearing of the Builder’s case proceeded and during the hearing, the Owners withdrew their case in effect on the basis they were unable to proceed with it, without representation.

The Owners appealed to the Appeal Panel of NCAT essentially on the basis that there was a denial of procedural fairness.  The Appeal Panel refused the Appeal.

Thereafter as is the process, the Owners sought leave to appeal to the Supreme Court of NSW and the matter was decided by His Honour Justice Hamill.  The Supreme Court extended the time in which the Owners could appeal, granted leave to appeal, allowed the appeal and set aside the Orders of NCAT Appeal Panel. 

The Supreme Court:

1. Allowed the Appeal.
2. Quashed the Decision of the Senior Member at first instance, which included the claim by Metricon.
3. Remitted the matter for hearing by a different Senior Member of the Tribunal to be dealt with in accordance with the law.
4. Ordered Metricon to pay the costs of the appeal to NCAT Appeal Panel and the costs of the Appeal to the Supreme Court of New South Wales.

Justice Hamill in the Supreme Court noted and found:

1. That the Tribunal was obliged to provide a reasonable opportunity for each party to be heard and present its case. 
   
   His Honour was concerned as to the last minute withdrawal of the Owners’ legal representation without any question from the Tribunal as to the basis.  This left the Owners unrepresented which was a denial of natural justice especially in the context of the Joint Expert’s Report which was received very late and there were inconsistent directions in relation to the effect of the Report.
2. That the guiding principles of the Tribunal were for proceedings to be quick and cheap but also just.  The just requirement cannot be overlooked in favour of the quick and cheap.
3. There is no basis under NCAT Act for the test applied by the Senior Member namely, the Owners to tell him about “some extraordinary circumstances why the matter shouldn’t go ahead today”. 
4. That applying the incorrect test and refusing adjournment in the circumstances described, did amount to a denial of natural procedural fairness and the Appeal Panel’s failure to recognise that was an error in law.

At Watson & Watson Lawyers we undertake numerous matters at NCAT and NCAT Appeal Panel and are well aware of the requirements and the difficulties that parties face in complying with the directions given by NCAT and NCAT Appeal Panel.  Not all refusals for adjournment are a denial of natural justice and each matter must be considered on its own merits. 

One should always be prepared to proceed as the consequences of not being prepared are very serious. 

1. Firstly (for example the Owners in this case) an adjournment might not be granted.
2. Secondly if NCAT granted an adjournment it would usually be that the party seeking the adjournment would have to pay the cost of the other side thrown away.
3. There would be extra significant costs in preparing for a further hearing. 
4. Any Appeal would be to NCAT Appeal Panel and thereafter with leave to the Supreme Court of New South Wales.
5. There is also a risk to each party to the proceedings that goes through the initial Tribunal, the Appeal Panel and Supreme Court, that whoever loses will have to pay the cost of each of the proceedings.

If you have any issues in relation to building works or strata matters or matters you are proposing to commence in NCAT or NCAT Appeal Panel, please contact Watson & Watson Lawyers.  Our highly experienced Solicitors in building and construction and strata can assist you.  Please contact Richard Watson Accredited Specialist in the stream of Building & Construction or his Personal Assistant Shereen DaGloria to discuss your matter and seek appropriate advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011