Barker v Plunkett and Anor Trading As M and J Plunkett Builders
[2018] ACAT 9
•7 February 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BARKER v PLUNKETT & ANOR TRADING AS M & J PLUNKETT BUILDERS (Civil Dispute) [2018] ACAT 9
XD 864/2016
Catchwords: CIVIL DISPUTE – application for costs after application to re-open case – principles regarding whether or not to re-open a case bar on further proceedings except with leave of the tribunal – whether there was unreasonable delay or obstruction
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 30, 32, 48, 56
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedural Directions 2010 (No. 1) ss 1, 3, 45
ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) r 6
Cases cited:Caruso v Jafer (Supreme Court of Victoria, unreported, 18 June 1998)
CIC Australia Ltd v Australian Capital Territory Planning and Land Authority (2013) 277 FLR 26
Commissioner for Social Housing v Hutchings & Gottschalk-Krutsky [2016] ACAT 88
Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 45
Council of the Law Society of ACT & the Legal Practitioner [2011] ACAT 49
Equuscorp Pty Ltd Formerly Equus Financial Services Limited v Francis Xavier Lah [2009] ACTSC 113
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13
Gindy v Chief Minister & ACT Government [2011] ACAT 67
Linder v Wright (1976) 14 ALR 105
Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227
Robinson v Fernsby [2003] EWCA Civ 1820
Smith v J&C Whyte Family Trust & Anor [2016] ACAT 132
Tenth Vandy Pty Limited v Natwest Markets Australia Pty Ltd (No 2) [2006] VSC 241
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Tribunal: Registrar K Soper
Date of Orders: 7 February 2018
Date of Reasons for Decision: 7 February 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 864/2016
BETWEEN:
GEOFFREY BARKER
Applicant
AND:
MATHEW AND JO PLUNKETT TRADING AS M & J PLUNKETT BUILDERS
Respondent
TRIBUNAL:Registrar K Soper
DATE:7 February 2018
ORDER
The Tribunal orders that:
1.No orders as to costs.
………………………………..
Registrar K Soper
REASONS FOR DECISION
Application
1.A civil dispute application was filed at the ACT Civil and Administrative Tribunal (the Tribunal) by the applicant on 10 August 2016. The applicant sought $1,081.78 from the first and second respondents under a minor works contract, dated 14 August 2014 (the Contract). The description of the work to be carried out was: “ground floor alterations to create bathroom and kitchenette to existing rooms.”[1] The Contract price was $29,380, with a requirement for progress payments.[2] The Contract permitted variations to the work. It relevantly stated:
The work may be changed by way of addition, omission or substitution agreed in writing between the parties or required by a competent Authority…[3]
[1] Item 4 of the Contract
[2] Item 8 of the Contract
[3] Item 9 of the Contract
2.The applicant paid $1,081.78 above the price specified in the Contract. It was acknowledged by the applicant that the Contract can be varied. However, the applicant indicated that the amount paid above the Contract price was not payable as the Contract “includes supply of all materials and labour”.[4] The applicant said that the builder never stated that any of the work that was carried out was a variation; and there was never any discussion, agreement or any paperwork signed in relation to a variation of the Contract.
Response
[4] Item 4 of the Contract and quotation attached to the Contract
3.The respondents filed a response on 8 September 2016, which disputed the amount claimed in the civil dispute application. The respondents indicated that at the time the quotation was prepared,[5] the respondents did not know what materials the applicant wished to use for fitting and fixtures, therefore, allowances were made. The respondents said that costs additional to the Contract price in the amount of $1,174.69 were incurred by the respondents due to contract variations. In particular, these costs involved the assembly of a Kaboodle kitchen flat pack. The respondents say that they told the applicant of the additional costs and were instructed by the applicant to assemble the flat pack kitchen.
[5] Ibid
4.The respondents have indicated that the applicant received the benefit of the work and that he was notified of the cost verbally and also in writing in a document titled ‘Final Account Breakup’. The respondents stated that they did not charge an additional 10% margin as they were entitled to do,[6] but only passed on material and labour costs. The response lodged on 8 September 2016 provided that:
The Respondents hereby put the Applicant on notice that if this application is pressed, they will seek that the ACAT dispense with the no-costs rule and order that the applicant pay their costs of the proceedings.
Dismissal of the civil dispute application
[6] Item 3 of the Contract
5.This matter was listed for a preliminary conference at the Tribunal on 17 October 2016. However, on 14 October 2016, the applicant filed a notice of discontinuance. On 17 October 2016, the Acting Registrar dismissed the application and vacated the preliminary conference.
Application for restoration of the proceedings
6.On 6 January 2017, after the civil dispute application had been dismissed, the applicant obtained legal representation. An application was filed seeking the restoration of the proceedings under section 45 of the ACT Civil and Administrative Tribunal Procedural Directions 2010 (No. 1) (the Procedural Directions). The grounds for the restoration application are summarised as follows:
(a)The applicant was previously self-represented.
(b)The applicant: “believes that he was intimidated by the respondents with the threat of costs…”. Further, “This may constitute duress on the part of the respondents”.
(c)In these circumstances, the applicant panicked and discontinued his application.
(d)The applicant is not estopped from seeking the restoration of the proceedings.
(e)The applicant has strong evidence to prove his claim and should be given the opportunity to do so.
(f)It is desirable to have the case heard on its merits.
Response to the application for restoration
7.The respondents provided written submissions at the hearing. It was submitted that whilst the Procedural Directions confer a discretion to restore the proceedings, the Tribunal made orders that dismissed the proceedings. Any restoration of the proceedings will now require those orders to be set aside. Extraordinary circumstances[7] are required to do this. Further, the respondent submitted that at the Tribunal it is common for parties to be self-represented. However, this of itself is insufficient to support a finding of extraordinary circumstances. The respondents also submitted that permitting the proceedings to be restored would give undue weight to the applicant’s unrepresented status.
[7] Section 56(iii) of the ACT Civil and Administrative Tribunal Act 2008
8.In relation to the applicant’s claim of duress, the respondent indicated that:
(a)their correspondence in relation to costs was lawful;
(b)the applicant had two weeks to consider the offer of settlement prior to discontinuing; and
(c)no protest of duress was made at the time.
9.The respondent indicated that the applicant has already had an opportunity to present his case, but decided not to do so. Further, the respondent submitted that any order for restoration would contravene an agreement to settle the dispute. It is stated that the settlement, in this instance, consisted of:
(a)The respondents’ letter dated 30 September 2016 which made an offer to resolve the dispute on the basis that the applicant would discontinue his claim so the parties could “walk away and move on” and the respondents would agree not to seek to recover their legal costs;
(b)The applicant’s reply on 14 October 2016, which states: “I have decided to accept your offer, with the details, as outlined in your email”; and
(c)The proceedings were then discontinued.
10.The respondents referred to Malago Pty Ltd v AW Ellis Engineering Pty Ltd[8] as authority for the proposition that a party that agrees to a settlement, but has not signed consent orders, can still be bound by the agreement provided the parties had intended the agreement to be immediately binding. An affidavit of the first respondent was also provided. It relevantly stated:
(a)My belief was that we had an agreement with Mr Barker that we would walk away and take no further action in the ACAT proceedings and that the notice of discontinuance concluded the matter.[9]
(b)The costs we have incurred have far outweighed the original claim by Mr Barker, a claim that we resolved in October 2016.
[8] Malago Pty Ltd v AW Ellis Engineering Pty Ltd (2012) NSWCA 227
[9] Paragraph 9 of the witness statement of Matthew Plunkett dated 13 January 2017
11.The respondents sought orders that:
(a)The applicant’s application to restore the proceedings be dismissed.
(b)In accordance with section 32(2)(c) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), the applicant not make a subsequent application to the Tribunal in relation to the dismissed claim without the leave of the Tribunal.
Consideration
Restoration application
12.The power to make Procedural Directions is found in Rule 6 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (the Rules).[10] The object of the Procedural Directions is to guide practice and procedure in the Tribunal.[11] The Procedural Directions relevantly provide that on application by a party the Tribunal may order that a proceeding be restored. This may occur if the proceeding has been discontinued.[12] If a restoration order is made, there is a discretion to make further orders. This includes any orders the Tribunal considers just.[13]
[10] Rule 6 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2)
[11] Procedural Direction 1
[12] Procedural Direction 45.1 - 45.1.2
[13] Procedural Direction 45.2.1 and 45.2.6
13.The Procedural Directions are silent in relation to what can be considered when deciding whether to exercise the discretion to restore a matter. Procedural Direction 3.3 states that:
Parties should check the provisions of the Act, authorising laws and the Rules before using the Procedural Directions.[14]
[14] Procedural Direction 3.3
14.The respondents have submitted that any restoration of these proceedings would also require the Tribunal to set aside the orders made on 17 October 2016 that dismissed the civil dispute application. Section 56(c) of the ACAT Act relevantly provides that the Tribunal may, by order, amend or set aside a Tribunal order if extraordinary circumstances make it appropriate to amend or set aside the order.[15]
[15] Section 56(c) of the ACAT Act
15.Equuscorp Pty Ltd Formerly Equus Financial Services Limited v Francis Xavier Lah[16] provided that in relation to the reinstatement of a case the: “discretion is traditionally regarded as one which is available to relieve against injustice.”[17] In Council of the Law Society of the Australian Capital Territory v The Legal Practitioner,[18] the Tribunal considered the principles regarding whether or not to grant an application to re-open a case. That Tribunal said that these principles were usefully stated in Urban Transport Authority of NSW v Nweiser[19] byClarke JA (with whom Mahoney and Meagher JJA agreed):
The principle which should guide the court in determining whether to grant an application for leave to reopen is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place …
[16] Equuscorp Pty Ltd Formerly Equus Financial Services Limited v Francis Xavier Lah (2009) ACTSC 113
[17] See generally FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13
[18] Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 45
[19] (1992) 28 NSWLR 471, 478
16.Further guidance can be found in Robinson v Fernsby[20], in which May LJ said:
The cases also acknowledge that there may very occasionally be circumstances in which a judge not only can, but should make a material alteration in the interests of justice. There may for instance be a palpable error in the judgment and an alteration would save the parties the expense of an appeal. On the other hand, reopening contentious matters or permitting one or more of the parties to add to their case or make a new case should rarely be allowed. Any attempt to do this is likely to receive a summary rejection in most cases. It will only very rarely be appropriate for parties to attempt to do so. This necessarily means that the Court would only be persuaded to do so in exceptional circumstances, but that expression by itself is no more than a relatively uninformative label. It is not profitable to debate what it means in isolation from the facts of a particular case.
[20] [2003] EWCA Civ 1820
17.The applicant stated in his restoration application that he had strong evidence to prove his claim. On the other hand, the respondent indicated that: “No evidence has been adduced to support the strength or otherwise of the claim”.[21] In Caruso v Jafer[22], Mandie J stated that:
It seems to me that it is incumbent upon a plaintiff who seeks to reinstate a proceeding under this rule to satisfy the court that justice requires that the court exercise its discretion to reinstate the proceeding.[23]
[21] Paragraph 24 of the respondents’ submissions
[22] Supreme Court of Victoria, unreported, 18 June 1998
[23] In Tenth Vandy Pty Limited v Natwest Markets Australia Pty Ltd (No 2) (2006) VSC 241, Hargrave J quoted Mandie J in Caruso v Jafer (Supreme Court of Victoria, unreported, 18 June 1998)
18.I formed the view that there was insufficient information presented by the applicant in relation to the merits of the case for the purposes of a restoration application.
19.The applicant also submitted that he should be shown leniency as he was previously self-represented. I accept that it would not be unusual for a self-represented party to feel some uncertainty or apprehension when navigating Tribunal processes. A person who is a party to an application in the Tribunal may appear in person, be represented by a lawyer or someone else.[24] As stated in Commissioner for Social Housing v Hutchings & Gottschalk-Krutsky[25]:
In contrast to many other administrative tribunals, the ACAT Act gives parties the right to be represented before the Tribunal. Notwithstanding that right, parties are regularly unrepresented, especially in the civil and residential tenancies jurisdiction, and the processes of the tribunal (which are required to be simple, inexpensive and quick) recognise that.[26]
[24] Section 30 of the ACAT Act
[25] [2016] ACAT 88
[26] Commissioner for Social Housing v Hutchings & Gottschalk-Krutsky at [86] per Senior Member Robinson
20.The applicant referred to the ‘threat of costs’. In this instance, the applicant obtained procedural information from the Tribunal regarding costs. On the afternoon of 27 September 2016, the Tribunal received an email from the applicant’s email address which relevantly stated:
I am told that ACAT is normally a ‘no-cost’ hearing. However if the respondent hires a lawyer to represent him, and particularly if I (applicant) loses the case, can the respondent then sue me for recovery of costs??
21.On the morning of 28 September 2016, the Tribunal replied to the applicant, with an email which relevantly states:
Section 48 of the ACT Civil and Administrative Tribunal Act 2008 covers the question of costs of proceedings. While it does state that parties are expected to bear their own costs in tribunal matters, it goes on to provide further information on exceptions to this expectation. You are advised to obtain some legal advice in this regard as the tribunal is unable to provide legal advice to parties to tribunal matters [the Tribunal then provided the details of some places that provided free legal advice].
22.It is clear that procedural information in relation to costs was provided to the applicant, as well as referrals to free legal advice providers. This occurred 16 days prior to the matter being discontinued by the applicant. The applicant also had other avenues open to him, such as choosing to attend the preliminary conference which had been scheduled at the Tribunal. In all the circumstances, the applicant was provided sufficient opportunity to make relevant enquiries prior to discontinuing his application.
23.Whilst consent orders were never sought in this case, it appears from the material before me that an agreement was reached in relation to the finalisation of this case. This agreement included the applicant discontinuing the application.
24.The applicant also sought restoration on the grounds that the ‘threat of costs’ “may constitute duress on the part of the respondents”. Sometimes in Tribunal proceedings a party is put on notice of the other party’s intentions, including in relation to seeking costs. In addition, the applicant obtained information from the Tribunal in relation to costs and could have obtained legal advice prior to discontinuing his application. Duress was not established by the applicant.
25.On 17 January 2017 I declined to restore the proceedings. In summary, this was due to the following:
(a)Whilst the civil dispute application had not been heard by the Tribunal on its merits, there was insufficient information as to why the applicant claimed to have a strong case.
(b)It is not appropriate to restore the proceedings simply on the basis that the applicant was previously self-represented. Particularly when the applicant obtained procedural information from the Tribunal and had the opportunity to seek further information.
(c)The applicant had sufficient time before he discontinued to consider his position and obtain any relevant advice or additional information.
(d)Duress had not been established.
(e)An agreement appeared to have been reached regarding the finalisation of the proceedings. This included the applicant discontinuing his application. The respondents thought that the matter was finalised and had already incurred costs that outweighed the value of the claim.
(f)In all these circumstances, it was not in the interests of justice to restore the application.
Bar on further applications without leave
26.The respondents also sought an order that the applicant not make a subsequent application to the Tribunal in relation to the dismissed application without the leave of the Tribunal.[27] Such an order may only be made in circumstances such as when an application is lacking in substance, frivolous or vexatious or otherwise an abuse of process.[28] The respondents indicated that the applicant’s case lacked merit. However, I was not inclined to make an order under section 32(1) of the ACAT Act in all the circumstances. Whilst there was insufficient information in relation to the merits of the applicant’s case, this is not the same thing as having no arguable case, or that the application lacked substance in respect of any element that is essential to be proved.[29]
[27] Section 32(2)(c) of the ACAT Act
[28] Section 32(1) of the ACAT Act, Gindy v Chief Minister & ACT Government [2011] ACAT 67 and Council of the Law Society of ACT & the Legal Practitioner [2011] ACAT 49
[29] Gindy v Chief Minister & ACT Government [2011] ACAT 67
27.There is nothing prohibiting the applicant from lodging a new civil dispute application.
Costs
28.Procedural Direction 45.4 provides that: “If the tribunal does not make a restoration order on an application under sub-direction 46.1, the tribunal may make any order for costs it considers appropriate.” It appears as though the reference to ‘sub-direction 46.1’ of the Procedural Directions is likely to be an error in drafting. I accept that it is meant to refer to ‘sub-direction 45.1’,[30] which relates to the restoration of proceedings.
[30] In Linder v Wright (1976) 14 ALR 105 a cross reference in a section of an Act to subs (3) should have been to subs (4). Muirhead J was prepared to read the Act in this way
29.The Procedural Directions for the Tribunal’s civil jurisdiction provide that:
Subject always to the power to determine procedure in a particular application, the tribunal intends that the procedure for civil dispute applications should generally reflect the procedure in use before 2 February 2009 for claims made in the Small Claims Court wherever that procedure is consistent with the Act, the Rules and the General Directions. However, there are several examples of procedures previously in use that are now the subject of provisions of the Act or are included in the General Directions.[31]
[31] In the Procedural Directions, prior to Procedural Direction 30, under the heading ‘Civil Dispute Applications’
30.The ACT Magistrates Court (the Court) had jurisdiction to hear small claims prior to the establishment of the Tribunal. In relation to the restoration of proceedings, the Tribunal adopted a similar procedure as the Court.[32] However, the Court was also guided by Court Procedure Rule 3781, which provided that there could be no order for costs made in relation to representation by a lawyer.
[32] Procedural Direction 45 was based on Court Procedure Rule 3780
31.The Tribunal has a different approach to costs, as set out in section 48 of the ACAT Act. This provides that: “The parties to an application must bear their own costs unless this Act otherwise provides or the Tribunal otherwise orders.” This general principle does have exceptions, as found in section 48(2)(b). It provides that:
if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application—the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction.
32.Section 48 of the ACAT Act was considered in CIC Australia Ltd v Australian Capital Territory Planning and Land Authority (CIC). Penfold CJ found that given section 48(1) of the ACAT Act, the Tribunal does not have any general power to award costs. It follows that there are limited costs powers, as provided for in section 48(2) of the ACAT Act.[33] This is in contrast with Procedural Direction 45.4, which gives the Tribunal the discretion when a restoration order is not made to award the costs “it considers appropriate”. The Procedural Directions do not apply if there is a contrary provision in the ACAT Act.[34] They also do not limit the power of the Tribunal to decide that a different procedure should be followed in a particular application.[35] The broad discretion to award costs when a restoration application is unsuccessful does not operate harmoniously with section 48 of the ACAT Act. Even if Procedural Direction 45.4 is not contrary to the ACAT Act, it is appropriate to be guided by section 48 of the ACAT Act when determining whether or not to exercise the discretion to award costs.
[33] CIC Australia Ltd v Australian Capital Territory Planning and Land Authority (2013) 277 FLR 26
[34] Procedural Direction 3.2
[35] Procedural Direction 3.4
33.There must be something to depart from the general rule, which is each party bears their own costs. There are some limited circumstances where a costs order is appropriate, for example, there has been unreasonable delay or obstruction. When looking at this provision, the ordinary meaning of ‘delay’ and ‘obstructs’ is to be used.[36] Delay is relevantly defined as: “make (someone or something) late or slow” and “postpone or defer an action”.[37] Delay must be unreasonable and “can be minor or occur unintentionally and/or unavoidably.”[38] ‘Obstructs’ is relevantly defined as “prevent or hinder (something or someone in motion)” and “deliberately make (something) difficult”.[39]
[36] These words are not defined in the ACAT Act
[37] Oxford Dictionary (online)
[38] Smith v J&C Whyte Family Trust & Anor [2016] ACAT 132 at [140], per President McCarthy
[39] Oxford Dictionary (Online). President McCarthy also provides an analysis of the meaning of obstruction in Smith v J&C Whyte Family Trust & Anor [2016] ACAT 132 at [143]-[148]
34.It is relevant in relation to this matter that the application to restore the proceedings was brought approximately two and a half months after the proceedings were dismissed. There were some negotiations prior to the matter proceeding in the Tribunal, which is not uncommon. These things do not, in this case, constitute unreasonable delay. This is particularly so given that the applicant sought to have his civil dispute application heard on its merits. This was in circumstances where the Tribunal has a discretionary power to restore the proceedings.
35.It is unfortunate that the respondents have now accrued costs in these proceedings that exceed the value of the applicant’s claim. However, it does not follow that costs can or should be awarded against the applicant solely on that basis, even when the application to restore was not successful. No order was made under section 32 of the ACAT Act which would prohibit further applications unless leave is granted. Orders of this nature can only be made if the Tribunal considers that an application, or part of it, is frivolous, vexatious, lacking in substance or an abuse of process.[40] Even if such an order were made, Smith v J&C Whyte Family Trust & Anor, provides that ‘delay’ or ‘obstruction’ in section 48(2)(b) of the ACAT Act does not encompass an unmeritorious action, or bringing an action that amounted to bad faith or abuse of process.[41] I am not satisfied that there has been unreasonable delay or obstruction in relation to this case. I make no order as to costs.
[40] Section 32 of the ACAT Act
[41] Smith v J&C Whyte Family Trust & Anor [2016] ACAT 132 at [143], per President McCarthy
………………………………..
Registrar K Soper
HEARING DETAILS
FILE NUMBER:
XD 864/2016
PARTIES, APPLICANT:
Geoffrey Barker
PARTIES, RESPONDENT:
Mathew And Jo Plunkett Trading as M & J Plunkett Builders
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
R & J Lawyers
SOLICITORS FOR RESPONDENT
Mills Oakley Lawyers
TRIBUNAL MEMBERS:
Registrar K Soper
DATES OF HEARING:
17 January 2017
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