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

The appeal before the court involves Mr Fothergill, the appellant, who sought to challenge the decision of a Deputy Registrar of the Australian Capital Territory Civil and Administrative Tribunal (ACAT) to dismiss his application for failure to attend a hearing. The appeal was lodged against the decision not to set aside the dismissal of his application for additional damages against Canberra Workwear Pty Ltd, the respondent. The original application was dismissed due to the appellant's failure to file evidence of his alleged loss and his non-attendance at the hearing. The appellant subsequently filed an application for interim or other orders seeking to set aside the dismissal, which was also dismissed by the Deputy Registrar. The appellant's appeal of this decision is what is presently before the court.

The central legal issue in this appeal is whether the Deputy Registrar erred in not setting aside the dismissal of the appellant's original application. The appellant argues that the Deputy Registrar failed to consider the medical evidence and erred in accepting the evidence from the respondent's representative that the appellant only attended the store twice. Although not entirely clear, the appellant also appears to submit that evidence that should have been admitted was not. The court must determine whether there was any error of fact, law, or discretion in the Deputy Registrar's decision not to set aside the dismissal.

The court found that the appeal was without substance and should be dismissed. The appellant failed to identify any error of fact or law on the part of the Deputy Registrar. The Deputy Registrar did consider the medical certificate, but it was not relevant to the decision as it did not explain why the appellant could not have attended the hearing or sought an adjournment. Furthermore, even if the appellant attended the store more than the number stated by the Deputy Registrar, this would not change the outcome of the case as there was no cogent evidence of any loss. The principle in Hadley v Baxendale holds that a person who breaches a contract is responsible for losses that arise 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 too remote to meet this test, particularly in the absence of any reasonable explanation for why they were incurred, let alone what they are.

The court also expressed concern that the appeal was vexatious, as the appellant had a pattern of behaviour indicating that he may not have genuinely intended to prosecute these matters. The court considered it 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.

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.
3. The Tribunal will publish reasons.