Chessell v Reynolds

[2018] ACAT 110

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CHESSELL & ANOR v REYNOLDS (Civil Dispute) [2018] ACAT 110

XD 22/2018

Catchwords:              CIVIL DISPUTE – removal of person as representative of party – lack of sufficient knowledge – lack of authorisation – objectives of legislation – failure to prepare substantive case - unsolicited email correspondence

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 ss 6, 30, 44

Powers of Attorney Act 2006 s 63

Subordinate

Legislation cited:      ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) s 8

ACT Civil and Administrative Tribunal Procedural Directions 2010 (No 1) s 7

Tribunal:                   Presidential Member MT Daniel

Date of Orders:           15 October 2018

Date of Reasons for Decision:         5 November 2018

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL        )          XD 22/2018

BETWEEN:

AARON CHESSELL & MAXINE CHESSELL

Applicant

AND:

PATRICK REYNOLDS

Respondent

TRIBUNAL:   Presidential Member MT Daniel

DATE:15 October 2018

ORDER

The Tribunal orders that:

1.Mr Eric Polleycutt is removed as the representative of the respondent in this matter and Mr Eric Polleycutt must not take any further part in this proceeding

The Tribunal notes that:

Penalties may apply if a party to an application fails to comply with a Tribunal order.

……………Signed……………

Presidential Member MT Daniel

REASONS FOR DECISION

1.On 15 October 2018 I heard and determined an application by Aaron and Maxine Chessell for Eric Polleycutt to be removed as the representative of Patrick Leo Reynolds, the respondent. The substantive matter was a civil dispute, which had already been before the tribunal on a number of occasions for interlocutory matters including setting aside of default judgment, preliminary conference, return of subpoenas and the making of directions to prepare the matter for hearing. The substantive matter was listed for final hearing on 2 November 2018.

2.Section 30 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that a party may appear in person or be represented by a lawyer or someone else. Where a non-lawyer represents a party who is an individual, section 7.1.3 of the ACT Civil and Administrative Tribunal Procedural Directions 2010 (Procedural Directions) requires that the representative be authorised by a power of attorney. Mr Reynolds had filed with the Tribunal a power of attorney which authorised Mr Polleycutt to represent him in relation to matters brought against him in the Tribunal.

3.The application to stop Mr Polleycutt taking further part in the proceeding was brought under section 8 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (the Rules). That section provides that the Tribunal may stop a representative of a party taking part in the proceeding, in limited circumstances:

8   Removing representatives

(1)     This rule applies if a party to a proceeding in the tribunal is being represented by someone else (the representative).

(2)     The tribunal may, by order, stop the representative from taking any further part in the proceeding.

(3)     However, the tribunal may only make an order under subrule (2) if satisfied that—

(a)the representative does not have sufficient knowledge of the issues in dispute in the proceeding to allow the representative to effectively represent the party at the hearing of the proceeding; or

(b)the representative does not have sufficient authority to bind the party; or

(c)the representative’s representation is inconsistent with the objects of the Act.

Note 1        The tribunal must observe natural justice and procedural fairness (see the Act, s 7).

Note 2        The objects of the Act are in the Act, s 6.

4.The applicants attended the hearing on 15 October 2018, however neither Mr Reynolds nor Mr Polleycutt attended. At the conclusion of the hearing, I made the orders sought removing Mr Polleycutt as the representative of Mr Reynolds in the proceedings.  At that time I gave a brief summary of my reasons, what follows is an edited copy of those reasons.

Proceeding ex parte

5.First, I am satisfied it is appropriate to proceed to hear and determine the application to remove Mr Polleycutt as a representative in the absence of Mr Reynolds and Mr Polleycutt. Notice of today’s hearing was provided both by post and by email. I note that Mr Polleycutt has sent in a written submission on behalf of Mr Reynolds addressing the application, so he is clearly aware of these proceedings. I conclude he has chosen not to attend or participate.

6.So it is appropriate to hear the matter in their absence under section 44(2)(d) of the ACAT Act, and that is what I have done.

Evidence and submissions by the parties

7.I have had regard to the file generally, and noted the number and type of attendances at the tribunal, and correspondence that has been sent in over the history of the file by Mr Polleycutt on behalf of Mr Reynolds.

8.I have had particular regard to the application for interim orders filed on 7 September by Mr and Mrs Chessell, which attaches a document setting out 16 grounds on which they think that Mr Polleycutt should not be representing Mr Reynolds. I have also had particular regard to the written submissions in relation to that application and the document entitled Attachment B filed by Mr Polleycutt on Mr Reynolds’ behalf.

9.I have considered the oral evidence and submission of Mr Chessell today. I have also considered Mr Polleycutt’s oral submissions and his demeanour when the matter was before me on 11 September 2018, in relation to an application by the respondent which I ultimately dismissed as misconceived.

10.On the basis of everything that I have had regard to, I am satisfied that I can draw certain inferences of fact, and I draw those inferences as follows.

Section 8(3)(a) sufficient knowledge of the issues to effectively represent the party

11.First, I am satisfied that despite some familiarity with legal processes and jargon, Mr Polleycutt does not have sufficient knowledge of the issues in this case to effectively represent Mr Reynolds at the hearing. Mr Polleycutt’s inability to identify and comprehend the real issues in this case is demonstrated by his scattergun approach of email correspondence raising irrelevant legal content.

12.On 11 September 2018 I had said to Mr Polleycutt and Mr Reynolds, who was present, “Focus on the issues in this matter. You have to prepare your evidence for hearing. That is what’s important.” I thought that I had explained clearly that sending in lengthy emails with spurious issues in them was no way to prepare the case for the imminent hearing. I drew the parties’ attention to directions that the formal response to the claim was to be filed together with the respondent’s evidence on 12 October 2018.

13.I see today however that of the about 2½ centimetres of correspondence and documents have been added to the file in the month since 11 September, none seems to be a response, or witness statement or submissions on behalf of Mr Reynolds addressing the issues in the substantive matter.

14.Of course without a formal response it is difficult to be certain what will ultimately be in issue in the hearing, but at the most basic level this case will turn on whether the facts on which the claim is brought are established and, if so, whether there is a defence to that claim. In order to contest the claim, Mr Reynolds has got to get on file a response, and some witness statements. Mr Polleycutt, on behalf of Mr Reynolds, simply hasn’t been able to focus on that but is distracted by peripheral procedural issues. I infer from that failure that Mr Polleycutt does not know what the real issues are in this dispute.

15.I also accept Mr Chessells’ evidence given today that in the negotiations and conversations with Mr Polleycutt, Mr Polleycutt has seemed to not understand what the claim is about and what is at issue in the substantive proceedings. In this regard I note that section 7.1.4 of the Procedural Directions specifies:

7.4  A representative must have sufficient knowledge of the matter to enable effective participation in an application and to discuss settlement or resolution of the dispute where appropriate. A representative must be able to contact a party during any tribunal conference or hearing at which the party is not present in order to receive or confirm instructions.

16.In relation to section 8(3)(a) of the Rules, I do not think Mr Polleycutt has sufficient knowledge of the issues in dispute to represent Mr Reynolds.

Section 8(3)(b) sufficient authority to bind the party

17.Turning to the next factor in section 8(3), I have a real doubt as to whether Mr Polleycutt has authority to represent Mr Reynolds, notwithstanding the power of attorney filed with the Tribunal.

18.This is due to what may be a legal incapacity of either Mr Polleycutt or Mr Reynolds, or both, which might be inferred from the content of the email correspondence.

19.The existence of a legal incapacity seems to be acknowledged on the first page of the most recent email[1] to the Tribunal, where the author ‘agrees’ he is attending the application under “severe and debilitating incapacity” but does not have the funds to pay for representation.  That email is unsigned but I take it to be drafted by Mr Polleycutt, this is because on 11 September Mr Polleycutt explained to me that he sent emails from Mr Reynolds’ email address. Insofar as the email suggests that Mr Reynolds lacks capacity to manage his own legal affairs, this would have the effect of invalidating the power of attorney relied upon to provide authority to Mr Polleycutt in this matter. There is however no medical or other evidence that Mr Reynolds is suffering from a legal disability.

[1] 12 October 2018 1:49pm

20.Irrespective of that issue, the frequency and content of the correspondence on the file sent by Mr Polleycutt suggests that, although he is familiar with legal phrases and processes, he may be a person with impaired decision making ability. Under section 63 of the Powers of Attorney Act 2006, a power of attorney is revoked when an attorney becomes a person with impaired decision-making ability.[2]

[2] Powers of Attorney Act 2006 section 63

21.It is a long bow to draw to infer from the content of a single piece of correspondence that the author is not legally competent. Many self-represented litigants and non-lawyer representatives are unskilled in the law and upset to be involved in litigation, and their correspondence reflects their distress and confusion.  Nonetheless, such persons are entitled to represent themselves or their principal, and it is the responsibility of the Tribunal to assist them to put their case as best they can. However, the frequency, subject matter, tone and content of the correspondence sent by Mr Polleycutt on behalf of Mr Reynolds in this matter falls into an entirely different class.

22.For these reasons, I have real doubt that Mr Polleycutt is currently authorised by the power of attorney relied upon in this matter.

Section 8(3)(c) representation is inconsistent with the objects of the ACAT Act

23.Under section 8(3)(c) I have looked at Mr Polleycutt’s representation of Mr Reynolds in the context of the objects of the ACAT Act. The objects, as set out in section 6 of the ACAT Act include access to the tribunal being simple and inexpensive, and applications being resolved as quickly as is consistent with achieving justice. The conduct of this matter by Mr Polleycutt, on behalf of Mr Reynolds, is demonstrably counter to these imperatives.

24.Of course, not every matter is going to be quick, inexpensive and simple. There are complicated matters, they take longer to run, they have multiple tribunal events. All of that can be necessary, in a complicated case, for the matter to be determined in a way that is consistent with achieving justice and ensures the decision of the tribunal is fair.

25.But this is not a case that raises complicated issues. It is a straightforward civil dispute. When the delays, expense and complexity comes from a failure to file a response or evidence as directed, and the filing instead of incoherent email correspondence expressed with erratic capitals and bolding, that is not consistent with the objects of the ACAT Act. It is not simple, inexpensive, or fair for the other side to a dispute, or the Registry, to be expected to wade through pages of correspondence from a representative trying to work out its meaning. It is not quick or inexpensive, or simple, for there to be multiple tribunal events in order to hear directly from the representative, to work out whether the correspondence is an application for some sort of order, or not. That sort of representation, which has occurred in this matter to date, is not consistent with the objects of the tribunal’s legislation.

Conclusion

26.It is a very significant exercise of power to remove a party’s representative; they’re entitled to appear in person or with a properly authorised representative. Nonetheless as I’ve outlined above, I am satisfied it is appropriate to remove Mr Polleycutt as representative for Mr Reynolds in this matter, and I will make those orders as sought.

………………………………..

Presidential Member MT Daniel

HEARING DETAILS

FILE NUMBER:	XD 22/2018
PARTIES, APPLICANT:	Aaron Chessell & Maxine Chessell
PARTIES, RESPONDENT:	Patrick Reynolds
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	Presidential Member MT Daniel
DATES OF HEARING:	15 October 2018