Fothergill v Canberra Workwear Pty Ltd ACN 614 504 504 (Civil Dispute)

[2021] ACAT 121

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FOTHERGILL v CANBERRA WORKWEAR PTY LTD ACN 614 504 504 (Civil Dispute) [2021] ACAT 121

XD 603/2021

Catchwords:               CIVIL DISPUTE – interim application to amend or set aside tribunal orders made at preliminary conference – failure to attend hearings or participate in proceedings – whether there was a reasonable excuse for non-attendance – whether attendance at hearing would have resulted in a different outcome or made a material difference – where provision of a medical certificate for a period of several months is inadequate – where claim lacked a cause of action – interests of justice – interim application dismissed – orders remain in effect

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 7, 47A, 48, 56

Subordinate

Legislation cited:        ACT Civil and Administrative Tribunal Procedures Rules 2020 rr 56, 70

ACT Civil and Administrative Tribunal Practice Note Number 2 of 2020: Adjournments

Tribunal:Deputy Legal Registrar E Steel

Date of Orders:  26 October 2021

Date of Reasons for Decision:      8 December 2021

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 603/2021

BETWEEN:

SIMON FOTHERGILL

Applicant

AND:

CANBERRA WORKWEAR PTY LTD ACN 614 504 504

Respondent

TRIBUNAL:Deputy Legal Registrar E Steel

DATE:26 October 2021

ORDER

The Tribunal orders that:

1. The applicant’s Application for Interim or Other Orders filed on 11 October 2021 is not granted.

The Tribunal notes:

(a)the effect of this is that the previous orders made on 8 October 2021 remain in effect and the application is dismissed.

…………Signed……………..

Deputy Legal Registrar E Steel

REASONS FOR DECISION

Introduction

1. Mr Fothergill’s application for interim or other orders filed on 11 October 2021 sought the set aside of previous orders made at a preliminary conference. Those orders had dismissed his civil dispute application in his absence. He was, in essence, asking for his substantive application to be restored.

2. Mr Fothergill left the hearing of his interim application before I read my reasons onto the record. This is an edited version of those oral reasons.

Background

1. Most of the facts forming the background to this civil dispute application were agreed.

2. Early in 2021, Mr Fothergill approached the respondent business seeking embroidery services for logo designs. He paid a fee to the business for them to produce several logos and was given a date by which the work was expected to be ready.

3. He approached the store a week after that date and was told that the work was not complete. On two or three occasions, he drove across Canberra to visit the store to enquire about the status of his order and each time found that it was not ready. It was not clear why Mr Fothergill had not made these enquiries by telephone or email, instead of driving to the store each time.

4. The respondent did not deny that it took longer than expected to complete Mr Fothergill’s work. A series of unexpected circumstances impacted the delivery of the work, including: difficulties accessing Mr Fothergill’s electronic files; staff injury and illness; and a build-up of orders delayed by stock shortages due to COVID-19. The store owner was apologetic about the delay and refunded Mr Fothergill the money he had already paid.

The civil dispute application

1. Mr Fothergill’s application filed on 18 June 2021 claimed his expenses for lost time, fuel and other incidentals. There was no evidence in support of these claims filed with the application.

2. The application was served on the respondent, a response was filed disputing the claim, and a conference and immediate determination listed for 8 October 2021. Mr Fothergill was aware of the time and details for the telephone conference, which were set out in the tribunal’s listing notice sent to the parties.

3. At the time of the conference the tribunal member convening the conference telephoned the parties and left two messages for Mr Fothergill. Mr Fothergill denies receiving those calls or messages, but there is a note on file that they were made. In any event, Mr Fothergill did not answer the conferencing member’s calls, and did not attend the telephone conference. The respondent’s representative did attend. Given the tribunal’s usual approach to adjournment applications,[1] it is not clear that a request for an adjournment at that late stage would have been granted, even if it had been made.

   [1] ACT Civil and Administrative Tribunal Practice Note Number 2 of 2020: Adjournments

4. The tribunal has the discretion to dismiss an application if an applicant fails to attend a preliminary conference.[2] In this matter, the conferencing member made orders dismissing Mr Fothergill’s application in his absence. Shortly after, Mr Fothergill filed an application to set those orders aside.

Setting aside a final order

[2] ACT Civil and Administrative Tribunal Act 2008 section 47A; ACT Civil and Administrative Tribunal Procedures Rules 2020 rule 56(2)(d)

1. There is a framework around the tribunal’s decision about whether a previous order should be set aside.

2. In the big picture, the tribunal’s power to set aside a final order other than by appeal is found in section 56 of the ACT Civil and Administrative Tribunal Act 2008. The Tribunal is also mindful of principles such as:

   (a)seeking to ensure tribunal procedures are simple, quick, inexpensive and proportionate;[3] and

   (b)the requirement that a final order may only be set aside if it is in the interests of justice to do so.[4]

   [3] ACT Civil and Administrative Tribunal Act 2008 section 7

   [4] ACT Civil and Administrative Tribunal Procedures Rules 2020 rule 70(2)

3. More specifically, the framework around whether a final order should be set aside is found in rule 70 of the ACT Civil and Administrative Tribunal Procedures Rules 2020.

4. An information sheet about rule 70 was sent to the parties with the listing notice for the hearing. The parties were made aware that, for an application to set aside an order where a party was absent, the tribunal must take into account:

   (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.[5]

   [5] ACT Civil and Administrative Tribunal Procedures Rules 2020 rule 70(7)

5. The parties had an opportunity to give to the tribunal and each other, any evidence in support of their submissions for the hearing of the interim application. They did not do so. They did make oral submissions about these matters at the hearing on 26 October 2021.

The hearing

1. Mr Fothergill knew that the conference was listed on 8 October 2021. He had not asked for, or been granted, an adjournment. He told me that an unexpected medical situation arose at the time of the conference and he was not able to attend, although at the time of the hearing no evidence of that medical situation was provided to the Tribunal.

2. I was not able to consider it at the time of the hearing, but Mr Fothergill did send the tribunal a medical certificate later that day. The certificate covered a period of several months which included the date of the conference. It was not clear on its face why the particular medical condition it identified had prevented Mr Fothergill from participating in a telephone conference. There was no supporting information explaining why that medical condition impacted his participation on that day. There was no information explaining why, if he was aware that this long-term medical condition may affect him from time to time, he had not made arrangements either to request an adjournment of the conference or authorise a representative to attend on his behalf. In any event, the certificate was provided after the hearing and after the orders had been made.

3. I invited the parties to tell me about the application and why it would, or would not, have made a difference if Mr Fothergill had attended the conference.

4. Although not entirely clear, I gathered that Mr Fothergill’s submission was that if he had come to the conference, the tribunal would have made an order in his favour for the amounts he claimed.

5. I accepted Mr Fothergill’s assertion that he was a highly qualified person whose time is valuable. I also appreciate Mr Fothergill’s disappointment that the respondent did not complete his work in the time he expected. However, this was not enough to substantiate his claim for time, inconvenience and associated expenses.

6. The tribunal is a no costs jurisdiction.[6] Mr Fothergill was seeking additional expenses which are outside the nature of claims usually ordered by the tribunal. There was nothing to show there was a particular basis for orders that the respondent pay the amounts claimed.

   [6] See ACT Civil and Administrative Tribunal Act 2008 section 48

7. Even if they were able to be sought, Mr Fothergill had not provided any supporting evidence for the expenses he said he incurred. There was no satisfactory explanation as to why he drove to the store rather than contact them to ask about the progress of his work by telephone or email. Although he submitted that, if required, he could calculate fuel prices, his weekly expenses and other costs and put those on paper, he had not done so. He had not included any supporting evidence in his initial application, and he had not taken the opportunity to provide additional information prior the hearing of his interim application.

8. In essence, the business had already reimbursed him for his actual loss by repaying his upfront fee, and there was no basis for his additional claims.

Conclusion

1. I could not be satisfied that it was in the interests of justice to set aside the previous orders. Having taken into account the reasons Mr Fothergill gave for his absence at the conference, and having found that it would not have made a material difference to the outcome of the proceedings if he had attended, Mr Fothergill’s application for interim orders was not granted. As a result, the final orders made on 8 October 2021 remain in effect and the application remains dismissed and is thereby finalised.

   ………………………………..

Deputy Legal Registrar E Steel

Date(s) of hearing:	26 October 2021
Applicant:	In person
Respondent:	By its authorised representative