Adelaide Relocation Services P/L v Dowd - [2005] SADC 147

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative Appeals Tribunal: Appeal Under Residential Tenancies Act 1995)
ADELAIDE RELOCATION SERVICES P/L v DOWD
Reasons for Decision of His Honour Judge Millsteed
25 October 2005
ADMINISTRATIVE LAW
Appeal pursuant to s41 of the Residential Tenancies Act (SA) against an order made by the Residential Tenancies Tribunal for payment by the landlord to the tenant for compensation for damage and inconvenience caused by failing to keep premises in a reasonable state of repair - landlord claiming that Tribunal was in breach of the rules of natural justice and procedural fairness by conducting hearing in the absence of the landlord - whether landlord given a reasonable opportunity to present its case - whether landlord liable for compensation - appeal dismissed.
Residential Tenancies Act 1995 s37 and s110(1)(c); Evidence Act 1929 s45A, referred to.
Kioa v West (1985) 159 CLR 550; Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 187 ALR 117; Sullivan v Department of Transport (1978) 20 ALR 323; Timms v South Australian Housing Trust [2003] SASC 60; Twist v Council of the Municipality of Randwick (1976) 51 ALJR 193; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; The King v War Pensions Entitlement Appeal Tribunal: ex parte Bott (1933) 50 CLR 228; R v Deputy Industrial Injuries Commissioner; ex parte Moore [1965] 1 QB 456; Pearce v Button (1986) 8 FCR 408; A and B v Director of Family Services (1996) 132 FLR 172, considered.

ADELAIDE RELOCATION SERVICES P/L v DOWD
[2005] SADC 147
Introduction

Adelaide Relocation Services Pty Ltd (the “appellant”) was a landlord under a residential tenancy agreement with a tenant Professor Peter Dowd (the “respondent”). The appellant has appealed against a decision of the Residential Tenancies Tribunal (the “Tribunal”) made on 8 April 2005 whereby the Tribunal refused to vary or set aside an order made by the Tribunal on 11 March 2005. The earlier order required the appellant to pay the respondent compensation of $760.00 pursuant to s110(1)(c) of the Residential Tenancies Act 1995 (the “Act”) for damage to a limited edition print and inconvenience caused by a leakage of water into a bedroom.
Factual background
The residential tenancy agreement related to premises at unit 3, 11‑18 Pennington Terrace, North Adelaide. The respondent and his wife, Ms Ingrid Gittings, arrived in Adelaide from England on 28 July 2004 and took possession of the unit. After occupying the unit for a period of about 2 weeks, the respondent agreed to rent the premises from the appellant until 1 November 2004. The tenancy agreement was then extended to 13 January 2005. The premises were leased by the appellant from Brock Harcourts and sublet to the respondent.
Hearing on 31 December 2004
On 29 December 2004 the respondent lodged an application with the Tribunal seeking urgent orders for the appellant to rectify the water leak and compensation for the appellant’s failure to maintain the rented premises in a reasonable state. The hearing of the application was listed to commence on 31 December 2004. The appellant did not enter an appearance.
Ms Deanne Nottingham, the appellant’s Managing Director, informed the Tribunal by telephone on 30 December 2004 that she could not attend the hearing due to illness and, further, indicated that the appellant wanted to challenge the Tribunal’s jurisdiction to determine the dispute. On the 31 December 2004 the respondent informed the Tribunal that he did not pursue his application for repairs to be carried out because the tenancy was about to end. The Tribunal concluded that the matter was not as urgent as first appeared and adjourned the hearing to 10 January 2005.
Subsequent communications between the appellant and the Tribunal
The Tribunal subsequently served the appellant with a notice dated 4 January 2005 informing the appellant that the hearing had been adjourned to 10 January 2005. The notice further stated:
TAKE NOTICE THAT you are required to attend together with such documents and WITNESSES you feel may be able to provide information which would assist in determining the dispute.
N.B.1YOU ARE ADVISED TO BRING TO THE HEARING ALL DOCUMENTS UPON WHICH YOU MAY INTEND TO RELY (e.g. Rent Book, Inspection Sheet, Receipts, etc.)
N.B.2IF YOU ARE AN APPLICANT AND FAIL TO ATTEND THIS HEARING OR ANY ADJOURNMENT THEREOF THE TRIBUNAL MAY DISMISS YOUR APPLICATION OR HEAR AND DETERMINE THE MATTER IN YOUR ABSENCE.
THE DECISION MADE WILL BE BINDING ON YOU.
N.B.3IF YOU ARE THE OTHER PARTY TO AN APPLICATION AND FAIL TO ATTEND THIS ADJOURNED HEARING THE TRIBUNAL MAY HEAR AND DETERMINE THE MATTER IN YOUR ABSENCE THE DECISION MADE WILL BE BINDING ON YOU.
N.B.4IF YOU OR YOUR WITNESSES NEED AN INTERPRETER AT THE HEARING PLEASE TELEPHONE THE LISTING CLERK ON 8266 0708 AS SOON AS POSSIBLE AND AN INTERPRETER WILL BE ARRANGED FOR YOU AT NO COST.
On 5 January 2005 Ms Nottingham telephoned the Tribunal and spoke to Joanne Mardon, the Tribunal’s Support Co-ordinator. It is common ground that Ms Nottingham informed Ms Mardon that she was going into hospital on 7 January 2005 and, further, indicated that she would not be able to attend the hearing unless she was out of hospital by 10 January and well enough to attend on that day.
Ms Nottingham, however, claims that Ms Mardon told her that the Tribunal would hear argument on 10 January 2005 only on the question of whether the Tribunal had jurisdiction to deal with the respondent’s application and that any hearing of the merits of the respondent’s application would take place at a later date. This assertion is inconsistent with Ms Mardon’s note of the conversation which appears on the Tribunal’s file.
The note states:
Agent will be going into hospital on 7 /1/05. Does not know if will be out of hospital or well enough to attend by the date of the hearing. If agent is well enough and out of hospital agent will attend hearings. Otherwise could hearing be adjourned to a later date. Further surgery booked for Friday [7 January 2005]. Agent does not know when she will be well enough to attend hearing. Uinder (sic)doctors orders to not do too much.
Tenant is moving out on 14 /1/05.
Premises rented from other agent for tenant. If order made Adelaide Relocation Services will lodge their own application for compensation from the agent that they rented it from. They will decide whether to send through a request for a relist.
Another note on the Tribunal file indicates that at 11.21am on 10 January 2005 a member of the Tribunal’s staff, Mr Craig Wilton, spoke by telephone with Ms Nottingham. The note suggests that Ms Nottingham spoke to Mr Wilton from a telephone at the appellant’s place of business. The note further states:
Spoke to the agent, she advised that she is not well enough to attend the hearing. She advised she is not seeking an adjournment and will be providing documentation prior to the hearing to be taken into account in her absence.
The contents of Mr Wilton’s note are disputed by Ms Nottingham. She claims that she did not attend work on 10 January due to illness and never spoke to Mr Wilton on that day. Ms Nottingham contends that Mr Wilton spoke to an employee of the appellant named Kathy Strauss. She also disputes that Ms Strauss would have informed Mr Wilton that the appellant was not seeking an adjournment of the hearing.
Later that morning, prior to the commencement of the hearing, Ms Krystal Bayet, a property consultant employed by the appellant, delivered to the Tribunal a letter dated 10 January 2005 signed by Ms Nottingham. The letter advised the Tribunal that Ms Nottingham could not attend the hearing and requested the Tribunal to take into account various documents that had been enclosed with the letter.
The letter states:
Further to our telephone calls of last week advising of my unlikely ability to attend the hearing scheduled for today due to my recent hospitalisation and ongoing illness requiring further treatment, I will be unable to attend.
We enclose for today’s hearing all relevant rental agreements and short term booking letters which clearly show that Prof Dowd signed this lease indicating that is (sic) was not his principal place of residence.
We believe Prof Dowd to be a learned man; his title and academic achievements indicate this.
The documents enclosed show some of the conjecture regarding the rental term. Many amendments were received and the term was ultimately changed from a 6 month lease to a 3 month lease, then further reduced to a 1 week booking, then a further week booking was required, then an extension was requested for a further 10 weeks and finally the last extension for a further 3 months. These extensions were brought about due to a house sale falling through in the UK and delays in locating suitable accommodation in Adelaide.
We believe that appropriate time was provided by our office to read and fully understand the original lease agreement sent to Prof Dowd whilst still residing in the UK. We confirm that three (3) queries regarding the agreement were received indicating this was read.
We also wish to advise that during the term of all lease agreements Prof Dowd confirmed in writing that he referred to university personnel for assistance and advice regarding an electrical socket – which incidentally had already been confirmed as safe to use by numerous qualified electricians who actually visited the property at the expense of the property owner.
If Prof Dowd was unaware of any contents of this agreement, you could comfortably assume that assistance would have also been sought from the university’s extensive law departments.
It is also important to note that Adelaide Relocation Services are also a tenant as we too have a rental agreement for this property with Brock Harcourts being the property managers acting on behalf of the property owner. We wish to confirm that that (sic) any compensation awarded to Prof Dowd will also be sought by our office from the property managers Brock Harcourts.
We will await receipt of any orders associated from today’s hearing in due course. Kindly mail these to PO Box 324, Kensington Park, SA 5068.
Please feel free to contact the writer should you require further clarification.
(My emphasis)
Hearing on 10 January 2005
The hearing before the Tribunal commenced later that day. The respondent and his wife gave evidence. No person appeared for the appellant. The Tribunal had regard to Ms Nottingham’s letter of 10 January 2005 and the other documents delivered by Ms Bayet.
By order dated 11 March 2005, the Tribunal rejected the appellant’s contention that the Tribunal lacked jurisdiction to determine the dispute and found that the respondent was entitled to compensation in the sum of $760.00.
The Tribunal’s written reasons for order refer to Ms Nottingham’s non-attendance on 10 January 2005.
There was no appearance by or on behalf of the landlord. I note that Ms Deanne Nottingham, the Manager of Adelaide Relocation Services Pty Ltd, wrote to the Tribunal by letter dated 10 January 2005 and indicated that she would not be able to attend. She enclosed all relevant information which she wished to bring to the attention of the Tribunal. She did not seek an adjournment.
The Tribunal gave the following reasons for granting the respondent compensation:
Professor Dowd gave evidence that when he arrived at the apartment on 28 July 2004 he noticed problems with the lighting mechanism in the kitchen area and a fault with the extractor fan over the cooker. In addition, there was a problem with the shower cubicle. I am satisfied that he then noticed serious problems with the electrical cabling in the open plan area. There was damp evident in the wall around the cabling and socket. He notified the agent of this in writing on 2 August 2004. He followed this up with further notifications on 13 September, 6 October, 13 October and 8 November 2004. Although he agreed to renew his lease during this period of time he did so on the basis that the electrical issues would be addressed. The landlord sent an electrician who placed a note over the socket in question advising that it should not be used. The socket was then replaced in November with an identical one. The problem with the damp in the wall continued but the landlord did not address it.
On 16 November 2004, I accept that there was a significant water leak through the central area of the ceiling of the second bedroom. I am satisfied that the landlord was notified immediately. The landlord suggested that the room not be used and that items stored in the room be moved away from the damp area. I am satisfied this was done. I am satisfied that in December water began to stream down the walls of that bedroom. I am further satisfied that a print which had been stored in the centre of the room and had then been moved in order to avoid the water from the ceiling became damaged as a result of the second ingress of water. I am satisfied that the print in question was purchased from D’Art De Main Galleries Broken Hill at a cost of $150.00 within a matter of weeks prior to it being damaged. I am further satisfied that despite being notified of the significant leak in the second bedroom from the central area of the ceiling that no rectification work was undertaken by the landlord. I am satisfied that having been notified of the leak in bedroom 2 the landlord failed to act with reasonable diligence to have the leak repaired. I am satisfied the further leak occurred as a result of the lack of diligence on the part of the landlord. I accept that the landlord is not the owner of the subject premises. However, that does not alleviate the landlord from its obligation under Section 68 of the Act to maintain the premises in a reasonable condition. I shall allow the cost of replacing the limited edition print which I am satisfied was $150.00 together with postage of $10.00.
I am satisfied that as a result of water leaking into the bedroom it was not able to be used as a bedroom. At this stage, Professor Dowd had his son at the premises. It would have been convenient for him to have used the bedroom. As it was damp the tenant’s son was unable to use the room and had to sleep on the sofa in the lounge. I accept that this was inconvenient. I accept that because the second bedroom could not be used many of the tenant’s belongings had to be stored in the living room. Professor Dowd had paid for the use of the second bedroom but it was unavailable to him for storage and for use as a bedroom whilst his son was visiting from England. I shall compensate Professor Dowd for the loss of use of the room for a period. It seems to me that, taking into account all of the evidence including the rent payable under the agreement for the furnished premises was over $500.00 per week that it is reasonable to allow $600.00.
I am also satisfied that the landlord did not appropriately deal with the problem of the shower door at the subject premises. However, I note the tenant has not sought compensation for this default and accordingly allow no compensation.
In total I find the tenant is owed $760.00.
The hearing on 8 April 2005
On 24 March 2005 the appellant lodged an application with the Tribunal for an order setting aside the order made on 11 March 2005 pursuant to s37 of the Act. The order was sought on the ground that Ms Nottingham was unable to attend the hearing on 10 January 2005 due to illness and also because she allegedly had been informed by Tribunal staff prior to the date of the hearing that the merits of the respondent’s application for compensation would not be determined on that day.
By order dated 14 April 2005, the Tribunal rejected the appellant’s application. After referring to the notes relating to the telephone conversations on 5 and 10 January 2005, the Tribunal said in its written reasons:
Ms Nottingham now claims that she was told by Tribunal staff that the tenant’s claim for compensation would not be heard on 10 January 2005. Rather that this hearing was only a hearing to determine whether the Tribunal had jurisdiction to hear the tenant’s application.
Ms Nottingham’s submission is not supported by any of the telephone messages noted on the Tribunal file. Neither is it supported by a reading of the tenant’s application or even a reading of the letter Ms Nottingham sent to the Tribunal on 10 January 2005. Despite Ms Nottingham’s submissions to the contrary the documents attached to the landlord’s letter are not restricted only to the question of jurisdiction and the letter refers to matters other than the argument relating to jurisdiction. In part the letter states:
“We wish to confirm that any compensation awarded to Prof Dowd will also be sought by our office from the Property Managers Brock Harcourts.
We will await receipt of any orders associated from today’s hearing in due course …”
The letter anticipates an order being made by the Tribunal which might compensate the tenant.
I do not accept Ms Nottingham’s submissions that she was advised that the hearing on 10 January 2005 would only determine jurisdiction. Neither do I accept her submission that the documents submitted on 10 January 2005 were restricted to an argument on jurisdiction. The application made by the tenant was clear. It was adjourned to be determined on 10 January 2005. Hearing notices received by the parties warned the parties to attend the adjourned hearing and bring to the hearing all documents on which the parties might rely or any witnesses which would assist the Tribunal in determining the dispute. Ms Nottingham had this opportunity on 10 January 2005 but elected to rely on written submissions provided to the Tribunal that day. Ms Nottingham has failed to make out a proper ground on which the Tribunal might now re-open the previous decision of the Tribunal. The landlord’s application must therefore be dismissed.
The appeal
By Notice of Appeal filed on 11 April 2005 the appellant now seeks a rehearing of the matter on the following grounds:
Procedural fairness was denied to landlord due to hospitalisation between 16/12/04 to 07/01/05 with further treatment required, despite 3 telephone calls of 30/12/04 +1 further call of 05/01/05, advising of my [Ms Nottingham’s] inability to attend and offer to provide letters from Dr’s confirming dates of hospitalisation + illness details.
Order of 11/3/05 provided by Tenancies Tribunal detailed many inaccuracies including dates incident occurred, rental amount being paid by tenant +Tribunal misinformed themselves of the cause + responsible parties.
On the hearing of the appeal the appellant was represented by Ms Nottingham and Ms Bayet. The respondent appeared with his wife. I heard submissions from Ms Nottingham and Ms Bayet and from the respondent and his wife on all grounds. I also received from the appellant’s representatives a bundle of documents which they argued supported the appellant’s contention that the Tribunal had erred in finding that the respondent was entitled to compensation by reason of the water leak.
Procedural Fairness
I turn to the appellant’s complaint of procedural unfairness.
In essence, the appellant contends that there was a denial of procedural fairness by reason of the Tribunal proceeding to deal with the merits of the respondent’s application on 10 January 2005 when Ms Nottingham was led to believe that only the issue of jurisdiction would be the subject of argument on that day.
It is well established that there is a common law duty for statutory tribunals 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 manifestation: Kioa vWest (1985) 159 CLR 550.

The concept of procedural fairness requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 per Gaudron and Gummow JJ at 126. However, as Deane J observed in Sullivan v Department of Transport (1978) 20 ALR 323 at 343:
… it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled …
Under the Act, the Tribunal has power to “proceed to hear and determine an application in the absence of a party”: s32(1)(d). This provision is not incompatible with the common law duty to afford parties to proceedings procedural fairness by giving them a reasonable opportunity to present their case: see Timms v SouthAustralian Housing Trust [2003] SASC 60: cf Twist v Council of the Municipality of Randwick (1976) 51 ALJR 193. Consequently, it was incumbent on the Tribunal to give the appellant a reasonable opportunity to be heard not only on the issue of jurisdiction, but also in respect of the merits of the respondent’s application.
Was the appellant denied such an opportunity?
In determining the answer to this question, it must be remembered that the appellant carries the onus of establishing error on the part of the Tribunal. As the High Court observed in Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684:
The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part, he has not been heard.
Ms Nottingham’s letter and the delivery of documents to the Tribunal on 10 January 2005 clearly indicate that the appellant’s representatives anticipated that a hearing would take place before the Tribunal on that day. The critical issue is, whether Ms Nottingham may have been under a misapprehension that the hearing would be confined to a consideration of the issue of jurisdiction due to statements made to her by Tribunal staff. If Ms Nottingham had been so misled, then I accept that the proceedings conducted on 10 January 2005 may have been conducted in circumstances where the appellant was denied a reasonable opportunity of presenting its case in respect of the merits of the application.
The appellant’s complaint is based on Ms Nottingham’s assertion that Ms Mardon misled her as to the nature and purpose of the relevant hearing. The Tribunal’s written reasons disclose that it rejected Ms Nottingham’s assertion, in part, on the basis of Ms Mardon’s note of the conversation on 5 January 2005. The note constitutes hearsay and would ordinarily be excluded in judicial proceedings unless it was admissible, for example, as a business record under s45A of the Evidence Act 1929.
I have turned my mind to the question of whether the Tribunal should have heard oral evidence from Ms Mardon rather than rely, at least in part, on the note.
Pursuant to s32(2) “the Tribunal’s proceedings must be conducted with the minimum of formality and in the exercise of its jurisdiction the Tribunal is not bound by evidentiary rules but may inform itself as it thinks appropriate”.
The effect of this provision is that the Tribunal can obtain information in any way it thinks best, but must give an interested party a fair opportunity to meet that information. Whether sworn evidence is required and whether cross-examination is permitted is entirely a question for the discretion of the Tribunal: see The King v War Pensions Entitlement Appeal Tribunal: ex parte Bott (1933) 50 CLR 228 per Rich, Dixon and McTiernan JJ at 244 and Starke J at 250. The Tribunal is entitled to have regard to any material provided it has some probative value. If the material has some probative value, the weight to be attached to it is a matter for the Tribunal: R v Deputy Industrial Injuries Commissioner; ex parte Moore [1965] 1 QB 456 per Diplock LJ at 488. None of this means that the rules of evidence are irrelevant. Fairness may require compliance with the rules of evidence, for example, where there is a real dispute about matters which go to the heart of a case: see Pearce v Button (1986) 8 FCR 408 per Lockhart J at 422; A and B v Director of Family Services (1996) 132 FLR 172 at 177.
In the present case, the Tribunal was entitled to act on the note made by Ms Mardon without requiring sworn evidence from her. The weight to be attached to that note was a matter for the Tribunal. However, because the relevant telephone conversation was the subject of controversy it would have been better if the Tribunal had required oral evidence from Ms Mardon and provided Ms Nottingham with an opportunity to cross-examine her. It is true, or so it would seem on the material put before me, that Ms Nottingham did not ask for Ms Mardon to be called. However, it must be remembered that she is a lay person unfamiliar with the rules of evidence and procedure.
Having said that, I am not persuaded that the Tribunal erred in rejecting Ms Nottingham’s claims.
The notice served on the appellant on about 4 January 2005 made it clear that the respondent’s adjourned application was to be heard on 10 January 2005. As the Tribunal observed, the notice warned the parties to attend the hearing and bring to the hearing all documents on which the parties might rely or any witnesses which would assist the Tribunal in determining the dispute. The notice further warned the parties that the Tribunal might hear and determine the matter in their absence and that any decision reached would be binding on them.
From the Tribunal’s perspective, the respondent’s adjourned application was to be heard on 10 January 2005. The Tribunal had never indicated to the parties that the merits of the respondent’s application would not be heard on that day. It is implausible that the support co-ordinator would have informed Ms Nottingham that only the question of jurisdiction would be considered without a direction to that effect from the Tribunal. Clearly, Ms Mardon had received no such direction before she spoke to Ms Nottingham on 5 January 2005. Furthermore, in the unlikely event that such an arrangement had been made over the telephone, it is improbable that Ms Mardon would not have informed the Tribunal of the arrangement prior to the hearing on 10 January 2005.
But more than that, as the Tribunal points out in its reasons for order, Ms Nottingham’s letter of 10 January 2005 contemplates that an order for compensation might be made by the Tribunal on that day in consequence of which the appellant might seek compensation from Brock Harcourts. The terms of the letter are inconsistent with Ms Nottingham’s assertion that she was labouring under the misapprehension that only the issue of jurisdiction was to be considered. The Tribunal also had the advantage of seeing and hearing Ms Nottingham give evidence on this issue. In the circumstances, I do not think that it can be said that the Tribunal demonstrably erred in rejecting her claim.
Given that Ms Nottingham was aware that the merits of the respondent’s claim were to be dealt with on 10 January 2005, it cannot be said that the appellant was denied a reasonable opportunity to present its case. If Ms Nottingham was too unwell to attend the Tribunal, and a proper presentation of the appellant’s case required her attendance, then an application for an adjournment of the hearing should have been made on behalf of the appellant.
No such application was made by Ms Nottingham in her letter to the Tribunal on 10 January 2005. Furthermore, the file note of Mr Wilton indicates that he spoke to Ms Nottingham on 10 January 2005 and that she indicated that the appellant did not seek an adjournment of the hearing. The Tribunal was entitled to take that note into account without requiring sworn evidence from Mr Wilton. As earlier observed, Ms Nottingham disputes the content of Mr Wilton’s note and asserts that he spoke to Ms Strauss. However, the appellant never called Ms Strauss to support Ms Nottingham’s claim. In the circumstances, the Tribunal was entitled to find that Mr Wilton was informed that the appellant did not want an adjournment of the hearing. In any event, as I have said, Ms Nottingham’s letter of 10 January 2005, and the delivery of other documents to the Tribunal on that day, clearly contemplated that a hearing would take place before the Tribunal.
In the circumstances, it cannot be said that the appellant was denied a reasonable opportunity to present its case.
The merits of the respondent’s claim
I turn to the remaining ground of appeal which attacks the Tribunal’s decision to grant the respondent compensation. This ground can be disposed of quickly. It would effectively require me to rehear the case and to admit evidence that was not put before the Tribunal. On the hearing of the appeal I received documentary material presented by the appellant for the purpose of following and evaluating the appellant’s argument. I reserved the right to rule upon its admissibility later. I see no good reason to embark upon the process contended for by the appellant. The appellant had a reasonable opportunity to present its case on 10 January 2005. The evidence that the appellant now seeks to put before me could have been obtained with reasonable diligence before the 10 January 2005 and put before the Tribunal on that day. Nothing has been put forward by the appellant which constitutes a sufficient ground to now receive any fresh evidence in this matter or to rehear the matter.
The appeal is dismissed and the decision of the Tribunal confirmed.