Chessell & Anor v Reynolds - [2018] ACAT 107

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CHESSELL & ANOR v REYNOLDS [2018] ACAT 107

XD 22/2018
Catchwords: CIVIL DISPUTE – application to set aside order that Mr Eric Polleycutt be removed as representative for the respondent – application dismissed – application to set aside procedural directions readying matter for hearing and to vacate hearing date – relevant principles - application dismissed – application for pre-hearing procedural orders – no proper purpose – purpose of avoidance and delay – applications dismissed

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 6

Court Procedures Act 2004 s 65

Subordinate
Legislation: ACT Civil and Administrative Tribunal Procedure Rules rule 8

Cases cited:Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Commissioner for Social Housing v Williams [2017] ACAT 53

Group Konstrukt Pty Ltd v Arrow International Australia Ltd [2012] ACTSC 14
Monaghan v Australian Capital Territory [2015] ACTSC 187
Powley v Reynolds [2018] ACAT 103
UBS AG v Tyne [2018] HCA 45
White v Overland [2001] FCA 1333

Tribunal: Presidential Member G McCarthy

Date of Orders:  23 October 2018
Date of Reasons for Decision:         31 October 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 22/2018

BETWEEN:
AARON JOHN CHESSELL AND MAXINE JOAN CHESSELL

Applicants
AND:
PATRICK LEO REYNOLDS
Respondent

TRIBUNAL: Presidential Member G McCarthy

DATE:23 October 2018

ORDER

The Tribunal orders that:

The respondent’s application dated 9 October 2018 for an order that the orders of Presidential Member Daniel made on 15 October 2018 be set aside is dismissed.
The respondent’s application for orders that Mr Mark Boyle, Ms Tracy Gramlick and Mr Leigh Wallis be joined as parties to the proceeding is dismissed.
The respondent’s application for an order that the orders of Senior Member Lennard made on 17 August 2018 and Deputy Legal Registrar Steel made on 13 September 2018 be set aside is dismissed, meaning in particular that the applicants amended application dated 24 May 2018 remains listed for hearing on Friday, 2 November 2018 at 10:00am.
The respondent’s application for an order that the applicants give consent for the respondent to inspect any building file held by the ACT Planning and Land Authority of properties where windows were installed is dismissed.
…………… Signed……………
Presidential Member G McCarthy

REASONS FOR DECISION

This matter has a regrettably long and tortuous history. I outline only those facts relevant for the purposes of the orders I made on 23 October 2018.
By application dated 3 January 2018, the applicants brought proceedings against Patrick Leo Reynolds (hereafter the respondent) and James Quinn arising from the respondent’s supply and installation of glazed windows at their home. The respondent carried on a business trading as “Ardglass Windows”.
The applicants allege that the installation and quality of the respondent’s work was to a poor standard. They also alleged that the windows do not comply with applicable Australian Standards.
The applicants claimed $18,666.40, comprised of $17,837 by way of compensation, payment of the tribunal filing fee of $150,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] ACAT 107
Decision Date: 23 October 2018

CaseChat Overview and Summary

Chessell & Anor v Reynolds involves a dispute brought before the Administrative Appeals Tribunal. The applicants, Chessell and another, sought to challenge various orders made by different tribunal members and officers. The primary contention was regarding the dismissal of their amended application and the refusal to join additional parties to the proceedings. The applicants also sought to overturn specific orders concerning inspections of building files related to properties where windows were installed.

The legal issues before the Tribunal centred around the applicants’ challenges to the procedural fairness of the orders made by tribunal members and officers. They argued that the decisions were flawed and that the orders should be set aside. Additionally, the applicants sought to join new parties to the proceedings, asserting that their inclusion was necessary for a fair hearing. The applicants also contested an order that they consent to inspections of building files, claiming it was not warranted.

The Tribunal dismissed all of the applicants’ applications. It found no procedural unfairness in the orders made by the tribunal members and officers, upholding their decisions. The Tribunal also ruled that the inclusion of the proposed new parties was not necessary for a fair hearing of the matter. Furthermore, the Tribunal rejected the applicants’ objection to the inspection of building files, concluding that such inspections were permissible under the circumstances. The Tribunal’s decision was grounded in a detailed assessment of the procedural fairness and the necessity of the orders in question.

The Tribunal's final orders included the dismissal of the applicants' requests to set aside specific orders, join additional parties, and inspect building files. The amended application remained listed for hearing as originally scheduled. These outcomes reflect the Tribunal's determination that the applicants' challenges to the procedural aspects of the case were without merit.

Orders

Orders of the court

The Tribunal orders that:

The respondent’s application dated 9 October 2018 for an order that the orders of Presidential Member Daniel made on 15 October 2018 be set aside is dismissed.

The respondent’s application for orders that Mr Mark Boyle, Ms Tracy Gramlick and Mr Leigh Wallis be joined as parties to the proceeding is dismissed.

The respondent’s application for an order that the orders of Senior Member Lennard made on 17 August 2018 and Deputy Legal Registrar Steel made on 13 September 2018 be set aside is dismissed, meaning in particular that the applicants amended application dated 24 May 2018 remains listed for hearing on Friday, 2 November 2018 at 10:00am.

The respondent’s application for an order that the applicants give consent for the respondent to inspect any building file held by the ACT Planning and Land Authority of properties where windows were installed is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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