Fothergill v Canberra Workwear Pty Limited ACN 614 504 504 (Appeal)

[2022] ACAT 39

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FOTHERGILL v CANBERRA WORKWEAR PTY LIMITED ACN 614 504 504 (Appeal) [2022] ACAT 39

AA 69/2021 (XD 603/2021)

Catchwords:               APPEAL – appeal from set aside application – matter without substance – direction not to file any further applications against the respondent without leave of the Tribunal

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 32, 56

Subordinate

Legislation cited:        ACT Civil and Administrative Tribunal Procedures Rules 2020 r 70

Cases cited:Attorney-General v Wentworth (1988) 14 NSWLR 481

Hadley v Baxendale [1854] EWHC J70

Appeal Tribunal:      Presidential Member H Robinson

Date of Orders:  20 April 2022

Date of Reasons for Decision:      11 May 2022

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 69/2021

BETWEEN:

SIMON FOTHERGILL
Appellant

AND:

CANBERRA WORKWEAR PTY LIMITED ACN 614 504 504
Respondent

APPEAL TRIBUNAL:        Presidential Member H. Robinson

DATE:20 April 2022

ORDER

The Tribunal orders that:

1. The application is dismissed as it is lacking in substance.

2. The appellant is directed not to commence any further applications in the Tribunal arising from the matters the subject of XD603/2021 or against the respondent without leave of the Tribunal

3. The Tribunal will publish reasons.

…………Signed……………..
Presidential Member H Robinson

REASONS FOR DECISION

1. By way of this application, the appellant, Mr Forthergill, appealed against the decision of a Deputy Registrar of the Tribunal not to set aside the ex parte dismissal of his application for failure to attend a hearing.

2. I made orders at the conclusion of the hearing on 19 April 2022. As the appellant was not in attendance, the orders were made ex parte, and I advised the respondent that I would deliver reasons on a later date. These are my reasons.

Background

1. The full background to this matter and reasons for decision are set out in Fothergill v Canberra Workwear Pty Ltd [2021] ACAT 121 (the previous decision). The previous decision is clear and succinct, and I need do no more than briefly summarise it here.

2. The appellant engaged the respondent to undertake some embroidery work for logo designs. Due to COVID-19 restrictions and staffing issues the respondent was unable to complete this work in the agreed time.  The respondent’s staff were apologetic and refunded the appellant’s money in full.

3. On 18 June 2021 the appellant (then applicant) lodged an application (the original application) seeking additional damages for costs associated with trying to enforce the contract, including compensation for the fuel and time he expended attending the respondent’s premises to enquire as to progress of his order.

4. The application was listed for a conference and immediate determination on 8 October 2021 (the CID hearing). As is usual in such matters, standard directions were made requiring both parties to file in advance all materials they intended to rely upon at the CID hearing. The appellant failed to file any evidence of his alleged loss prior to the hearing. He also failed to attend the hearing. The application was dismissed by the presiding member.

5. The appellant then filed an application for interim or other orders seeking to set aside the dismissal (the set aside application) pursuant to section 56(c) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).

6. The set aside application was listed for hearing on 26 October 2021 before a deputy registrar. Both parties were given an information sheet that explained the test to be applied under Rule 70 of the ACAT Rules, including that the Tribunal must consider:

   (a)the reason why the party was absent;

   (b)whether it might have made a material difference to the outcome if the party had attended; and

   (c)anything else the tribunal considers relevant.

7. Directions were made for the filing of evidence and submissions. Neither party filed anything.

8. Both parties attended the set aside hearing by telephone. The deputy registrar explained the law that she needed to apply. Both parties made oral submissions.

9. The appellant explained that a sudden medical condition had rendered him unable to attend the CID hearing. He filed no medical or other evidence in support of this contention. He also filed no additional evidence in relation to loss or in support of the substantive case. Having regard to all the material before her, the deputy registrar found it was not in the interests of justice to set aside the original decision, both because of the inadequate reason for nonattendance, and because she could not be satisfied that the outcome would have been any different had he attended. She gave oral reasons, but the appellant left the hearing without listening to them.

10. Later that day, after orders had been made, the appellant filed a medical certificate. Notwithstanding that it was filed late, the deputy registrar considered it and refers to it in her written reasons. The certificate confirmed that the appellant had a physical impairment lasting several months. The deputy registrar, rightly in my view, concluded that there was nothing in the medical certificate that suggests the condition compromised the applicant’s ability to attend the conference, and nor did it explain why the appellant could not have sought an adjournment of the hearing or even advised the tribunal that he could not attend. It did not change her decision.

The appeal

1. The appellant lodged the application for appeal on 12 November 2021. His reasons for applying for review are essentially that the deputy registrar did not consider the medical evidence and that she erred in accepting the evidence from the respondent’s representative that the appellant only attended the store twice. Although not entirely clear, he also appears to submit that evidence that should have been admitted was not.

2. On 4 March 2022, I made a series of directions in chambers, including the following:

   The appellant is required by 25 March 2022 to give the respondent and the Tribunal:

   (a)     the transcript of the hearing and reasons for decision;

   (b)     a list of the errors of fact, errors of law or discretionary errors in the decision which affected the decision;

   (c)     a copy of any proposed further evidence for the hearing of the appeal; and

   (d)     written submissions in support of the application for further evidence and the appeal, and specifying the orders sought if the appeal is successful.

   The hearing was listed for 10 April 2022.

3. The appellant did not file any material by 25 March 2022.

4. On 7 April 2022 the tribunal’s registry wrote to the appellant and asked him when he would be filing his material. Later that afternoon he sent an email with the words “Submission, Appeal, 20^th April 10:00”. Attached to this email was the application for appeal and the medical certificate, together with a document entitled “Front Office Incident Report”.  This document is on Australian Federal Police letterhead. It appears to be copy of a complaint the appellant made to the AFP alleging that a witness at the interim hearing lied about the number of times the appellant attended the respondent’s premises.

5. For the purposes of the hearing, I was prepared to accept that the 7 April 2022 email and the   accompanying documents are an attempt to comply with Orders 1(b) and 1(c) of 4 March 2022. The appellant did not, however, file the transcript or submissions, and nor did he seek a fee waiver or exemption in relation to the transcript.

6. On 14 April 2022 the tribunal’s registry again emailed the appellant, this time setting out, again, the directions of 4 March 2022 extracted above. The appellant did not respond. He did not file any further material in response. The respondent also filed no material.

7. Meanwhile, the respondent requested an adjournment of the appeal hearing, citing staff shortages and work pressures.  This was not granted.

8. On the morning of the hearing, having abandoned all hope that the appellant would file and serve the transcript (or request a fee waiver), I listened to the recording of the set aside hearing.  This is not usual practice, but the hearing was short and the recording readily available.

9. Unfortunately, the appellant did not attend the appeal hearing. He did not contact registry and advise he would be absent. He did not seek an adjournment. The respondent did attend, albeit its representative was late. Accordingly, I dismissed the appeal and upheld the original decision. I also made order under section 32 of the ACAT Act prohibiting the appellant from commencing further proceedings in relation to the matters the subject of this application, or the respondent.

Reasons for decision

1. Having regard to the material before me, being:

   (a)the appeal application;

   (b)the accompanying material, including the medical certificate;

   (c)the recording of the interim hearing; and

   (d)the reasons for decision;

   I am satisfied that this appeal is lacking in substance and should be dismissed pursuant to section 32(2)(b).

2. The purpose of an appeal is the correction of error[1].  The appellant has failed to identify any error of fact or law on the part of the registrar. Having undertaken a full review, including listening to the recording of the hearing, and reviewing the published reasons, I am satisfied no error was made.

   [1] Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [49]

3. The registrar did consider the medical certificate. It is plainly not relevant, for the reasons she stated in the written decision.

4. In terms of the witness evidence, the deputy registrar determined that the appellant attended the respondent’s store “two or three times”. Even if the appellant is correct that he attended more than that, this is not an error of such substance that it would change the outcome of the case.  No matter how many times he attended the store, there is no cogent evidence of any loss.  This is despite the appellant having been given three opportunities to file evidence (at the CID hearing, the interim hearing, and the appeal hearing), and the deputy registrar discussing with him at the interim hearing the kind of evidence he would need to succeed in this case.  He has also offered no satisfactory explanation as to why he drove to the store rather than calling on the telephone or sending an email.

5. The principle in Hadley v Baxendale [1854] EWHC Exch J70 Courts of Exchequer holds that a person who breaches a contract is responsible for losses that arises naturally from the breach itself or that are within the reasonable contemplation of the parties at the time of contracting. The kinds of expenses sought by the appellant were simply too remote to meet this test, particularly in the absence of any reasonable explanation for why they were incurred, let alone what they are.

6. In these circumstances, the appeal was certainly without substance and should be dismissed accordingly.

7. In addition to being without substance, I have some concern that the appeal was vexatious, in the sense of being instituted with the intention of annoying the respondent: see Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491. The appellant is not an inexperienced litigant. He has had numerous other matters before this tribunal. He must be aware of the requirement that he comply with directions and attend listed hearings, failing which a matter may be dismissed. On 19 January 2022 I dismissed the appeal in Forthergill v JB Hi-FiGroup Pty Ltd AA 52/21 in similar circumstances to the present, where the appellant failed to attend, failed to contact registrar and failed to provide an explanation for his absence. A further two matters in which the appellant was the applicant have been dismissed for non-attendance in the last few months.[2] Such a pattern of behaviour gives rise to a question as to whether the appellant ever genuinely intended to prosecute these matters.

   [2] XD905/2021 (Simon Fothergill Trading as Soulful Café v. Peter Jensen trading as Capital Sports and Embroidery); XD 207/2022 Fothergill v Chen & Cyber Data Computing Pty Limited

8. Section 32(2)(c) of the ACAT Act provides that where the Tribunal dismisses a matter as lacking in substance, it may also:

   (c)direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—

   (i)     within a stated period of time; or

   (ii)     without the leave of the tribunal.

9. This matter needs to end.  Accordingly, having reviewed this matter, and heard from the respondent, I was satisfied it is appropriate, necessary and proportional to make a direction that the appellant not commence further proceedings arising from the facts the subject of this matter, or against the respondent, without the leave of the Tribunal.

10. I also gave serious consideration as to whether to make a direction under this section that the appellant not commence any further civil actions in this tribunal without leave. Ultimately, I decided that the evidence did not justify such a step. I took into account that the last few years have been stressful for everyone, no doubt including the appellant.  I was also aware that the circumstances of this case meant I did not offer the appellant an opportunity to comment on the direction. However, the appellant should be in no doubt that, should he continue commencing and not prosecuting proceedings, a wider direction under 32(2)(c) remains a possibility.

Orders

1. The appeal is dismissed.

2. The appellant is directed not to commence any further applications in the Tribunal arising from the matters the subject of XD603/2021 or against the respondent without leave of the Tribunal

………………………………..

Presidential Member H Robinson

Date(s) of hearing:	20 April 2022
Applicant:	In person
Respondent:	Ms Mackenzie, authorised representative