Tamawood Pty Ltd v Dunne[2000] QDC 316

DISTRICT COURT OF QUEENSLAND

          REGISTRY: BRISBANE

APPEAL NO: 2562 of 2000

Appellant:

TAMAWOOD PTY LTD

and

Respondent

DAVID TERENCE DUNNE

REASONS FOR JUDGEMENT

Delivered the 30^th day of October, 2000.

1. Pursuant to leave granted by His Honour Judge Wylie on 8^th August, 2000 the appellant appeals against the “whole of the decision of the Queensland Building Tribunal dated 2^6th May 2000.”

2. By that decision the Member of the Tribunal ordered:

1. Pursuant to section 95(4) of the Queensland Building Services Authority Act, Tamawood Pty Ltd be added as a party to the building contract between David Terence Dunne and Dario Saciolotto; and

2. Tamawood Pty Ltd shall pay David Terence Dunne the sum of $2,513.00.^[1]

3. The evidence before the Member showed that the respondent and his wife spoke with members of the appellant’s staff about their building a home in the style of a design produced by the appellant and known as “Mornington.”  In particular the respondent and his wife spoke to one Roger Beale who is described as an “Executive Design Consultant.”

4. It is not in dispute that these discussions took place, and that they lead ultimately to the respondent and his wife signing a building contract with a builder for the construction of a home.  The appellant was not named as a party to that contract.  The plans and specifications were, however, prepared by the appellant’s staff.

5. As I have mentioned the style of home design which appealed to the respondent and his wife was known as the “Mornington.”  The advertising material for this style of home clearly shows a gable over the front door.  During the course of discussions plans were prepared which omitted the gable.  The plans which formed part of the contract did not provide for a gable.

6. The respondent’s case before the member was that he and his wife expected that a gable would be included.  Mrs. Dunne gave evidence, which the Member accepted, that Mr. Beale in essence undertook to vary the building plans to restore the gable, but failed to do so.

7. The respondent then brought proceedings before the Queensland Building Tribunal in essence seeking damages for the failure to incorporate the gable in the building plans.

8. I was told that the Tribunal ordered that the parties could not appear before it by counsel or solicitor.^[2]  The respondent appeared in person, and the appellant was represented by Mr. D. Boundy who describes himself as “Corporate Counsel.”^[3]  I was told he is a solicitor of the Supreme Court of Queensland, although I was also told that he lacked litigation experience.

9. Both parties had prepared witness statements which were before the Tribunal.  It is common ground that the respondent had required that the appellant produce its witnesses to be cross-examined. 

10. It seems to me that if the Member accepted the evidence of Mrs. Dunne then it was clearly open to her to find that there was a contract between the respondent and Mrs. Dunne on one side and the appellant on the other for the appellant to prepare plans in accordance with the instructions of the respondent and his wife.  Indeed the material would also, in my view, clearly support the finding that the proximity of the respondent and his wife and the appellant was such as to create a duty in the appellant to take all reasonable care to ensure that the respondent and his wife’s instructions were faithfully implemented.  Acceptance of the respondent’s material generally showed a breach of that contract and duty, and an entitlement in the respondent to damages.

11. The Member did accept Mrs. Dunne’s evidence.  However complaint is now made of the Member’s conduct during the proceedings.  In essence, the complaint is that the Member was in fact biassed against the appellant, or, alternatively, that there is  reasonable cause to suppose that the Member might have been so biassed.

12. Before proceeding, it is probably worthwhile to quote from the decision of the High Court in The Commonwealth Conciliation and Arbitration Commission and Others; ex parte The Angliss Group.^[4]  In that case objection was made before the High Court to certain members of the Commission entertaining an application for equal pay for men and women, on the basis that earlier statements of the members suggested they had preconceived views favouring the granting of equal pay to women.  The Court said:^[5]

.  ... Nor can there be any doubt that members of that Commission under the Act are bound to act in a judicial manner or that the common law principles of natural justice are applicable to the Commission and its members in relation to such hearings. But it must be borne in mind that these principles are not to be found in a fixed body of rules applicable inflexibly at all times and in all circumstances. Tucker L.J. said in Russell v. Duke of Norfolk:^[6]

" The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth."

This passage was approved by the Privy Council in University of Ceylon v. Fernando,^[7] and was used by Kitto J. in Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation.^[8]   There his Honour observed

" What the law requires in the discharge of a quasi-judicial function is judicial fairness .... What is fair in a given situation depends upon the circumstances."

We agree with the foregoing statements of the relevant law.  It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances. It is therefore important to bear in mind that the Commission does not sit to enforce existing, private rights.  Amongst other things, it is its function to develop and apply broad lines of action in matters of public concern resulting in the creation of new rights and in the modification of existing rights.  It is not necessarily out of place, and indeed it might be expected that a member of the Commission from time to time in the course of discharging his duties should express more or less tentative views as to the desirability of change in some principle of wage fixation.  The very nature of the office of a member of the Commission requires that he should apply his mind constantly to general questions of arbitral policy and consider the lines along which the processes of conciliation and arbitration for the prevention and settlement of industrial disputes ought to move.  But allowing for considerable scope for the formation and expression of opinion upon such matters of public interest and concern, it should not be forgotten that the confidence with which the Commission and its decisions ought to be regarded and received may be undermined, as much as may confidence in the courts of law, by a suspicion of bias reasonably - and not fancifully entertained by responsible minds.

The common law principles of natural justice are well understood though they have been variously expressed. It is sufficient here in relation to that aspect of those principles which is called in aid by the applicant to recall the well known passages from Allinson v. General Council of Medical Education and Registration,^[9] as cited and commented upon by Isaacs J. in Dickason v. Edwards^[10] and from R. v. Sussex Justices ; Ex parte McCarthy.^[11] A recent exposition is to be found in the judgment of the Master of the Rolls in Metropolitan Properties Co. (F.G.C.) Ltd. v . Lannon.^[12]

Those requirements of natural justice are not infringed by mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds.  Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.

13. Applying the statements of principle just referred to, it seems to me that I must examine the material put before me to see whether it “firmly establishes” that a suspicion may reasonably be engendered that the Member did not bring to the resolution of the matters before her a “fair and unprejudiced mind.”

14. In performing this examination it seems to me that I must have regard to all the circumstances, including the nature of the Tribunal itself and the nature of the dispute which fell for resolution.

15. The Tribunal was established by the provisions of Part 7 of the Queensland Building Services Authority Act 1991.  The members must have legal qualifications,^[13] and may be full or part time members.^[14]  The Members may be appointed for a term of up to seven years.^[15]  The member, during a hearing, may himself or herself summons a witness^[16] or refer a matter to a technical expert.^[17]

16. Section 87 of the Act provides that during a proceeding the tribunal must allow the parties “a reasonable opportunity” to call or give evidence, examine or cross-examine witnesses, and to make submissions.  Sub-section 3 of that section provides:

(3)   In a proceeding before the tribunal -

1. (a)
   the procedure of the tribunal is, subject to this Act, within the discretion of the tribunal; and

2. (b)
   the proceeding is to be conducted with as little formality and technicality and with as much speed, as the requirements of this Act and a proper consideration of the matters before the tribunal permit; and

3. (c)
   the tribunal is not bound by the rules of evidence but may inform itself in any way that it considers appropriate.

17. Thus whilst it is certainly true to say that the tribunal exists to determine and adjust private property rights, it nonetheless is intended by the Parliament that those exercising its jurisdiction shall do so unimpeded by some at least of the restrictions which would apply to a traditional court.  Parliament intended, it seems to me, that the tribunal should, to the best of its ability, provide for the speedy resolution of disputes with as little formality as the circumstances would permit.  I think it important to bear this assessment in mind when considering what was said and done in this case.

18. As I have mentioned, the respondent did not have an entitlement to legal representation before the Tribunal.  It is clear that the Member assisted the respondent by asking him and his wife numerous questions - but it does not seem to me that at any stage the Member could be said to be improperly putting words into the witness’ mouths so far as the critical issues were concerned.

19. The most significant grounds argued by the appellant are the first two,  viz -

1. The learned Member prejudged issues in that she decided to accept the evidence of the respondent’s wife, Mrs. Dunne, and reject the evidence of the appellant’s witnesses, Mr. Beale, prior to Mrs. Dunne being cross-examined on behalf of the appellant.

2. The learned Member erred insofar as she held that the reasons for Mr Beale’s non-attendance to be cross-examined on his sworn statement and otherwise give evidence were of “no interest” to her.

20. As I have mentioned, the appellant, despite being required to do so, did not  produce its witnesses before the Tribunal.  This lead to a few exchanges, one of which was emphasised by counsel for the appellant at the hearing.

21. The first exchange occurred just after the Member had ascertained from the respondent the nature of his case.  The relevant part reads:^[18]

MEMBER:   .....  Mr Boundy can you just outline to me whether I have the correct take on Tamawood's position today or if there's anything else you want to add to it.

MR BOUNDY:    Okay. Basically your synopsis is read, is basically correct. And you're right in that Tamawood maintains that it's not a contractual party. And that there is a builder involved who is licenced, who is responsible, who has the Plans as drawn and that the responsibility lies there. Should you find that we'll be joined as a party then we'll deal with it also, separately but -

MEMBER:    Have you got any witnesses?

MR BOUNDY:     No.

MEMBER:No witnesses at all. So you're not calling the Builder, or the Co­-ordinator or anyone of that type.

MR BOUNDY:       I've supplied the Affidavit material, everything's in there.

MEMBER: Alright. But these people aren't available for cross- examination.

MR BOUNDY:      No. The Builder is also up North. The Sales Consultant involved is down the Gold Coast and declined to be here without being summonsed and­

MEMBER:  And so you elected not to Summons them.

MR BOUNDY:      Yeah. I don't require them.

MEMBER: You understand Mr Boundy as a Solicitor, as I understand you are, that where there's a conflict in evidence and the author's of your statements aren't available for cross-examination, it may well be difficult to accept the veracity of what they allege in their material.

MR BOUNDY:       Understood, but it is a sworn document.

MEMBER: Yes. Yes but if they are not presented­

MR BOUNDY:       Understood.

MEMBER: There may be some problems for you. Alright Mr Dunne now do both of you need to give evidence? Both of you want to give evidence?

22. The passage particularly relied upon by counsel for the appellant occurred after the respondent had given his evidence, and after his wife had given her evidence in chief. This then occurred:^[19]

CROSS-EXAMINATION

MR BOUNDY:      Unfortunately Roger wasn't able to be here so we'll just have to accept that you disagree obviously.

MEMBER: No I'll have to make a decision Mr Boundy as to whose evidence I prefer.

MR BOUNDY:       Sorry.

MEMBER: When confronted with a conflict, and when confronted with a witness who's here giving oral evidence, the view that I have I can tell you what it is right now. It is that I prefer Mrs Dunne's evidence. She has quite a clear recollection. Mr Beale makes a bald statement without reference to any detail. And  based upon her evidence I reject that and I accept her evidence. What Mr Beale's arrangements were for today are of no interest to me save that he has been unable to be presented by the Respondent for cross-examination, notwithstanding that he was required for cross-examination. That's              a risk that your side ran Mr Boundy. Please continue.

MR BOUNDY:      Likewise I'll pose the same questions to you as to Mr Dunne. You obviously saw the plans when they were signed. You've already discussed that. ....

23. In respect of this last quoted passage the appellant submits that the appellant was denied natural justice in that the Member:

1. Prejudged the issues in that she decided to accept the evidence of the Respondent’s wife, Mrs. Dunne, and reject the evidence of Mr. Beale, prior to Mrs. Dunne being cross-examined on behalf of the appellant; and

2. Erred insofar as she held that the reasons for Mr. Beale’s non-attendance to be cross-examined on his sworn statement and otherwise give evidence were of “no interest” to her.^[20]

24. It has to be said that the language used by the Member in the second passage quoted above was unfortunate.  Some of the words, looked at in isolation, might suggest that the Member had closed her mind to further evidence and argument.

25. However it is important that one not look at the words complained of in isolation - they have to be understood in the context in which they were uttered.

26. The situation was that the Member had before her a matter involving a comparatively small amount of money.  The applicant before her was not legally represented.  The respondent before her was represented by a solicitor, albeit not one in private practice.  He had when first asked about the availability of his deponents informed the Member (from the Bar table) that the “Sales Consultant involved is down the Gold Coast and declined to be here without being summonsed ...”  In response to the Member’s inquiry, “And so you elected not to Summons them” he replied, “Yeah.  I don’t require them.”

27. The Member then warned the Appellant’s representative in brief words of the consequences of his failure to produce his deponents.  In essence she told him that in the event of a conflict between his witness and other witnesses, it would be difficult to accept the evidence of the witness who was not, as it were, in court.  No complaint could be made of anything that was said at this stage.

28. By the time the words particularly complained of were said the Member had heard the evidence of Mr. Dunne - which, it has to be said, did not take the liability issue very far.  She had heard the evidence in chief of Mrs. Dunne - which certainly did raise critical matters on the issue of liability.  She had read all the evidence which the respondent proposed to put before her. 

29. The appellant’s representative then commenced his cross-examination with an observation that it was unfortunate that his witness “wasn’t able to be here.”  He then stated that “we’ll just have to accept that you disagree.”  This latter statement was, probably as it seems to me,  an indication by him that he did not intend to comply with the requirements of the rule in Browne v. Dunn.^[21]

30. The Member’s response to these statements was to explain to the appellant’s representative that, notwithstanding his comment, her responsibility was to come to a conclusion on the conflicting evidence.  She explained that she would have to resolve the conflict.  She is recorded as saying (and the respondent has not suggested the transcript is in error) “I prefer Mrs. Dunne’s evidence,” and that she would reject the evidence of Mr. Beale.

31. These last two statements follow her observations to the appellant’s representative that Mrs. Dunne “has quite a clear recollection” which she contrasted with the “bald statement without any reference to any detail” made by Mr. Beale.^[22]

32. The Member then goes on to say that Mr. Beale’s arrangements for the day were of no interest to her.  Of course, she had already been told from the Bar table that he was “down the Gold Coast” and that he would not attend unless summonsed.

33. The exchange ended with the Member’s inviting the appellant’s representative to continue, which he did.  At the end of the evidence she heard submissions from both parties.

34. In my view it is important to bear in mind that when the appellant’s representative was reminded of the implications of his not producing the appellant’s deponents for cross-examination he did not seek an adjournment.

35. Nor did he seek an adjournment, or make an application for the Member to disqualify herself after she made the statements which are now complained of.

36. Having given the matter considerable thought, I am persuaded that the Member, notwithstanding the actual language used by her in a couple of places, was intending to do no more than indicate to the appellant’s representative that he would find it difficult to persuade her to reject Mrs. Dunne’s evidence bearing in mind his inability to produce Mr. Beale.

37. In coming to this conclusion I have thought it significant that the exchange complained of concludes with the invitation to the appellant’s representative to continue his cross-examination, which would have been pointless had she in fact intended to convey to him that her mind was closed on the important issues.

38. I have also thought it significant that the appellant’s representative did not make complaint at the time or seek that the Member disqualify herself.  Had the impression been created in him that further cross-examination was useless or that the Member had resolved the important issue of fact against the appellant one would have expected that he would have said something to protect the appellant’s position.  His failure to do so is a factor which makes me more confident in concluding that he did not at the time interpret the Member’s comments as meaning that she had closed her mind to the evidence he might seek to elicit by cross-examination.

39. As I have mentioned a number of times, an “explanation” of Mr. Beale’s failure to attend had been put before the Member early in the piece.  I can well understand her observation, in the light of what she had been told, that the details of his arrangements were of no interest to her.

40. In my view the appellant’s arguments based on a suggested denial of natural justice must fail.

41. The findings of fact made by the member cannot be gainsaid once the “natural justice” ground is disposed of.

42. The appellant also appeals against the member’s order that the appellant be “added as a party to the building contract ....”

43. In my view, the findings of the member were sufficient to establish that there was a contract between the appellant and the respondent.  Clearly (on the Member’s findings) that contract was breached, and damages might be awarded consequent upon the breach.  Equally, in my view, it could be said that the appellant was under a duty of care to ensure that the contractual documents were in accordance with the respondent’s instructions, and that the appellant breached that duty, entitling the respondent to an award of damages.

44. In these circumstances it was unnecessary for the member to make the order adding the appellant as a party to the contract.

45. In the circumstances it is not necessary for me to analyse the process by which the member arrived at the conclusion that she had the power to make the order.  My opinion is that she was correct in concluding that in appropriate cases the power may be exercised by the tribunal.

46. However I think the member was wrong in her conclusion that this was an appropriate case to add the appellant as a party to the contract.

47. Merely to declare that a party is deemed to be a party to a contract it seems to me is of no practical utility.  What obligations is the added party to have under the contract?  Perhaps the member might have varied the contract further by providing that it should be deemed to provide that the appellant was to be responsible for the cost of constructing a gable, together with “rectification” of the drawings to provide for such a gable.  This, it seems to me, would be cumbersome in the extreme.

48. In my view the second order made by the appellant should be set aside - on the grounds that making it was a wrongful exercise by the member of her discretion.

49. The last significant ground of appeal relates to the member’s finding that $500 should be included in her award for damages for “mental distress and inconvenience.”

50. It is concede that damages under such a head could not be awarded for breach of contract.^[23]

51. However damages under this heading can be awarded for breach of a delictual duty of care.  The member referred to two cases, Campbelltown City Council v. Mackay^[24] and Rentokil Pty. Ltd. v. Channon^[25] in which the making of such a award was upheld - and in both cases the basis of liability relied upon appears to have been tortious.

52. In my view the award made can be supported as damages for breach of the delictual duty of care.

53. Complaint was also made - more in written submission than in oral argument - of the member’s finding that the appellant “supervised the construction.”  Nothing, it seems to me, followed from that finding. There is, in my view, no point in further considering the matter.

54. My orders are:

1. That the appeal be allowed to the extent of setting aside the second order made by the member, viz. “That pursuant to section 95(4)(d) of the Queensland Building Services Authority Act, Tamawood Pty Ltd be added as a party to the building contract between the applicant and Dario Sacilotto;”

2. That the appeal be otherwise dismissed.

55. I will hear the parties on the issue of costs.

H. W. H. Botting, D.C.J.