Gaia Partners Pty Ltd ACN 627 832 455 v Jahanpanah (Appeal) - [2021] ACAT 128

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GAIA PARTNERS PTY LTD ACN 627 832 455 v JAHANPANAH (Appeal) [2021] ACAT 128

AA 41/2021 (XD 324/2020)

Catchwords: APPEAL – civil claim for unpaid wages – default judgment in favour of the applicant – non-attendance of respondent at hearing to assess damages – application to set aside assessment of damages dismissed consequent upon non-attendance of the respondent at hearing – appeal against assessment of damages – statement of principles regarding whether to set aside Tribunal orders – no grounds to set aside assessment order – order varied to increase statutory interest – application for appeal otherwise dismissed

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

Subordinate

Legislation cited: Court Procedures Rules 2006 r 1619

Cases cited:Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Commissioner for Social Housing v Williams [2017] ACAT 53
Davies v Pagett (1986) 10 FCR 226
Evans v Bartlam [1937] AC 473
Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537
Stormer Building Group Pty Ltd v Johnson and Johnson [2014] ACTSC 23

Tribunal:Presidential Member G McCarthy

Date of Orders:  21 December 2021
Date of Reasons for Decision:      21 December 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 41/2021

BETWEEN:

GAIA PARTNERS PTY LTD ACN 627 832 455
Appellant

AND:

OMID JAHANPANAH
Respondent

APPEAL TRIBUNAL: Presidential Member G McCarthy

DATE:21 December 2021

ORDER

The Tribunal orders that:

The orders made on 7 April 2021 are set aside.
The appellant pay the respondent the sum of $5,705.64 by 18 January 2022 comprised of:
(a)     $5,136.70 debt amount;
(b)     $400.44 interest;
(c)     $9.00 ASIC search fee; and
(d)     $159.50 Tribunal filing fee.

………………………………..
Presidential Member G McCarthy

REASONS FOR DECISION

The appellant operates a taxi fleet business. It carries on its business under the business name, ACT AllGreen Cabs.
The appellant’s managing director is Petar Ivanovski,[1] who also uses the names ‘Petar Johnson’ and ‘Peter Johnson’. In this appeal, Mr Ivanovski presented himself as Mr Johnson and I so shall refer to him by that name.
[1] ASIC company extract
As I understood it, the appellant operates its business by leasing taxis to drivers for a fee. Under the terms of engagement, taxi fares earned by a driver are apportioned between the appellant and the driver. The terms of engagement are not under consideration in this case.
In November 2019, the appellant engaged the respondent as a driver. The relationship between them did not end well. By civil dispute application dated 18 February 2020, the respondent commenced proceedings against the appellant seeking $5,136.70 in damages; reimbursement of the ASIC fee ($9) that he paid to identify the appellant’s business name; and reimbursement of the tribunal filing fee ($159.50) that he paid to commence his claim against the appellant.
The appellant did not participate in hearings scheduled for the purpose of determining the respondent’s claim and, as a result, default judgment was entered against it. A further hearing was held to assess the quantum of the respondent’s claim. Again, the appellant did not attend the hearing. Relying on the information provided by the respondent who attended the hearing, the original tribunal made orders that the appellant pay the respondent the amount claimed in his original application.
This appeal concerned the question whether the default judgment and the consequential assessment of the respondent’s claim should stand or be set aside. This appeal is not a determination of the merits of the respondent’s claim. It is about the importance of dealing with claims “as quickly as is consistent with achieving justice”[2] and why, in this case, the interests of justice demand that the default judgment and the assessment of the respondent’s claim should stand.
[2] ACT Civil and Administrative Tribunal Act 2008, section 6(c)
I begin with a chronology of events in the original proceeding, XD 324 of 2020 in which the order under appeal was made. The chronology is turgid, but it needs to be stated in order to understand the outcome of this appeal.

Original proceeding, XD 324 of 2020

On 24 February 2020, the respondent filed his civil dispute application. The application named the appellant by reference to its business name as the respondent to his application. The respondent[3] attached an extract from the Australian Securities and Investments Commission (ASIC) issued on 2 March 2020 which recorded the registered business address for ACT ALLGREEN CABS and “GAIA PARTNERS PTY LTD”, being the appellant in this proceeding, as the holder of the business name.
[3] By ‘respondent’, I mean the respondent to the appeal that is the subject of these reasons.
By letter dated 10 March 2020, the tribunal wrote to the appellant at its registered business address (using its business name) informing it that it had received the respondent’s application and advising that a response “must be filed by the respondent by close of business on 9 April 2020”. The tribunal attached a copy of the respondent’s application.
On 16 March 2020, the tribunal’s letter and the envelope in which it was sent was returned with “RTS Not Here” handwritten on the front of the envelope.
By email sent on 14 April 2020, the tribunal informed the respondent that his application had been returned to the tribunal as a “return to sender”. The tribunal asked the respondent if he was aware of another address to which his application could be sent to the appellant and advised about the option of substituted service.
Over the following months, the respondent engaged in conversation and correspondence with the tribunal in an effort to obtain details about how to serve his civil dispute application and who he should serve it on.
On 21 October 2020, the tribunal obtained a company search for Gaia Partners Pty Ltd which trades as ACT Green Cabs. The extract recorded that “ASIC mail” sent to the company’s registered address had been returned to ASIC. It recorded the director of the company to be “Petar Ivanovski”. By email sent to the respondent on 21 October 2020, the tribunal enquired whether “Peter Johnson is also known as Petar Ivanovski”.
On 26 October 2020, the tribunal ordered that the name of the respondent be changed to “Gaia Partners Pty Ltd ACN 627 832 455” (Gaia Partners).
On 26 October 2020, the Tribunal ordered that service of the respondent’s civil dispute application will be affected by sending it by ordinary post to the registered office of Gaia Partners and by text message to Petar Johnson’s known mobile number.
On 26 October 2020, Mr Johnson rang the tribunal and requested that the documents be mailed to him as he could not read them on his mobile phone. In the course of the phone call, Mr Johnson provided his email address. On the same day, the tribunal sent an email to Mr Johnson to confirm that the address was correct.
On 2 November 2020, Mr Johnson sent an email in reply stating:
I am writing to confirm that this is an appropriate email address to send the documents relating to the above application. It is our intention to defend this application. Please send the relevant documents to this email.
On 3 November 2020, the tribunal sent the respondent’s application and the tribunal’s orders dated 26 October 2020 to Mr Johnson by email. The documents were also sent under cover of letter from the tribunal dated 27 October 2020 which stated “a response must be filed by the respondent by close of business on 25 November 2020”.
On 25 November 2020, the respondent filed a response disputing the application. Mr Johnson requested two weeks to provide evidence in defence. He did so from a different email address. Mr Johnson did not provide any evidence within the timeframe he requested.
By letter dated 2 December 2020, sent by email at 1:06pm, the tribunal wrote to the parties advising that the respondent’s application was listed for a conference by telephone on 2 February 2021 at 10:30am. The letter stated that the conference was to be held by telephone to minimise the spread of COVID-19. The letter was sent to the address provided by the respondent, but not to the address provided by the appellant: the tribunal registry inadvertently added “.au” to the end of the address that the appellant had provided on 26 October 2020.
On 2 December 2020 at 1:06pm, the tribunal received an automated message that the email address used to send the email to Mr Johnson on 2 November 2020 “does not exist”.
On 2 December 2020 1:14pm, the tribunal sent another email to Mr Johnson, addressed to the address that Mr Johnson had used on 25 November 2020 to send his response. The tribunal’s email stated “[p]lease see below email the last email was undelivered. Please advise the best email contact for all future correspondence” The email was sent as part of an email ‘chain’ so that Mr Johnson could see the email that the tribunal had tried to send him at 1:06pm and its content. By this means, Mr Johnson could (or would) have observed that the respondent’s application was listed for a conference on 2 February 2021 at 10:30am and the reason why the tribunal’s earlier email was undelivered (namely the inadvertent addition of “.au”). The tribunal did not receive an automated response that that email sent to Mr Johnson at his alternative email address was undelivered. The tribunal did not receive a reply from Mr Johnson. I am satisfied that Mr Johnson was notified of the conference to be held on 2 February 2021.
On 2 February 2021, the tribunal conducted the conference in accordance with the notice that had been emailed to the parties.
The tribunal held the conference in an effort to help decide what were the real issues in dispute, to try and resolve the matter at an early stage before both parties spent more time, effort and money on the matter and before the parties became more entrenched in their positions. Conferences are particularly important in matters of this kind that involve claims for small sums of money.
The respondent participated in the conference. Mr Johnson did not answer his telephone to participate in the conference. The bench sheet records the mobile number used to ring Mr Johnson. It matches the mobile number he had previously provided to the tribunal. The tribunal’s bench sheet records that the tribunal member who was conducting the conference telephoned Mr Johnson at 10:30am and left a message for him to “call back”. The bench sheet records that the tribunal member left another message for Mr Johnson at 10:40am, and another message at 10:48am. Mr Johnson never called. The tribunal member concluded the conference at 11.00am and set the matter down for a directions hearing to occur on 17 March 2021.
By letter dated 4 February 2021, the tribunal wrote to the respondent and the appellant advising them that the matter was set down for a directions hearing on Wednesday, 17 March 2021 at 3.00pm, to be conducted by telephone, and attached a copy of the tribunal’s order made on 2 February 2021 to that effect. The letter was sent by email to the email addresses that the respondent and the appellant had provided, respectively. The email was sent to the respondent’s correct email address as provided by Mr Johnson on 26 October 2020.
On 17 March 2021, the tribunal conducted the listed directions hearing. The respondent attended. There was no attendance by Mr Johnson or anyone on behalf of the appellant. Accordingly, the tribunal made 4 orders:
1.       Judgment is entered for the applicant.[4]
2.       The applicant is given leave to amend his application to seek interest on his application, and the application is taken to be so amended.
3.       The applicant is to file and serve on the respondent[5] any material relied upon, including any financial records in support of [sic] claim and a document setting out how the damages are calculated by 24 March 2021.
4.       The matter is listed for an assessment hearing on Wednesday, 7 April 2021 at 10:00am.
[4] The applicant is the respondent on this appeal
[5] The respondent is the appellant on this appeal
The tribunal sent the orders to the parties by email on 19 March 2021 at 4:21pm, addressed to the email addresses that the parties had provided, respectively. The covering email stated:
Please find attached orders made by the Tribunal in the above-mentioned matter.
The matter is listed for Wednesday 7 April 2021 at 10:00 am. (emphasis in original)
On 22 March 2021, the respondent sent a document to the tribunal in support of his claim to comply with order 3 made on 17 March 2021.
Notwithstanding the orders made on 17 March 2021 in his absence, neither Mr Johnson nor anyone on behalf of the appellant contacted the tribunal regarding the orders made that day.
On 7 April 2021, the tribunal conducted the assessment hearing by telephone. The respondent attended by telephone. The tribunal member telephoned Mr Johnson on the number he had provided but the call was not answered. The bench sheet records “went to voicemail”. The bench sheet also records that the tribunal member was satisfied it was appropriate to proceed in the absence of the appellant, noting that he had been notified by email of the assessment hearing.
The bench sheet records that the hearing was conducted for a period of 25 minutes after which the tribunal member made the following orders, which now constitute the decision under appeal:
1. The respondent is to pay the applicant the sum of $5,553.44 by 21 April 2021, comprised of:
a)$5,136.70 debt amount;
b)$248.24 interest;
c)$9.00 ASIC search fee; and
d)$159.50 Tribunal filing fee.
By email sent on 7 April 2021 at 3:27pm, Mr Johnson filed an application for the orders “to be set aside and a new hearing date established”. The application stated:
Today I was available at the required time at 10.00am but I did not receive a call. I waited until 10.30am and then moved to other business. I presumed that the applicant had decided not to proceed with this inappropriate case of [sic] the matter had been deferred.
I thought later in the day to contact ACAT to check if the case was still proceeding or whether it had ceased and I was advised that a call had been made … but no message was left.
I life [sic] on a rural residential property where telephone contact is intermittent. I usually do receive calls but during some periods they do not come through. In this instance not only was there no call, but no message and no missed number (this missed number until much later in the day).
Mr Johnson went on to explain that he wished to defend the case. Why Mr Johnson would think that the respondent “had decided not to proceed” with his case when the respondent already had judgment entered in his favour was not explained.
The application also stated:
I will in the future, ensure that I move to a region of good telephone coverage in order to ensure that this does not happen again.
Mr Johnson’s email to which he attached his interim application stated:
I will make all effort to ensure I relocate to a city area in the future for this case.
On 7 April 2021 at 4:01pm, Mr Johnson sent another email attaching a statement of evidence that the appellant’s Fleet Manager intended to give. Mr Johnson wrote that the statement was provided “with the objective of clarifying that justice has not been achieved in relation to this case. Please advise as to the outcome of our application for the orders to be set aside so that we can properly defend this application.”
On 16 April 2021, the tribunal made the following orders:
1. The application for Interim or Other Orders lodged on 7 April 2021 is listed for hearing on Tuesday 4 May 2021 at 10:30am.
2. Each party, or their representative, is to provide their nominated telephone number to the Tribunal in writing or make a request to attend the hearing in person, by 27 April 2021. (emphasis in original)
On 22 April 2021, Mr Johnson (writing as Mr Peter Ivanovski) wrote to the tribunal by email requesting an update on his application to have the orders made on 7 May 2021 set aside.
By return email sent on 23 April 2021 11:03am, the tribunal replied:
I can confirm that the matter has been listed on 4 May 2021 at 10:30am in regards to your request to have the orders set aside.
I have also attached the email that was sent on 23 April 2021 in regards to the listing notice.
The final sentence of the above-mentioned email was a reference to an email from the tribunal sent to the parties earlier that day at 9:29am by which it sent a letter dated 23 April 2021 and a copy of the orders made on 16 April 2021.
The email and the covering letter both stated that the appellant’s application lodged on 7 April 2021 was listed for hearing by telephone on 4 May 2021 at 10:30am. The email to the appellant was sent to Mr Johnson’s personal email address, as provided by him.
On 4 May 2021, a Registrar of the tribunal telephoned Mr Johnson and the respondent to conduct a hearing of the appellant’s application for the orders made on 7 April 2021 to be set aside. The respondent answered the tribunal’s call. Mr Johnson did not.
The bench sheet records that the tribunal member telephoned Mr Johnson four times at 10:32am, 10:33am, 10:39am and 10:42am. The bench sheet records that, on each occasion, the tribunal’s call “went to voicemail”. The bench sheet records that 10:44am the tribunal Registrar went outside the hearing room into the tribunal’s foyer to be sure that Mr Johnson had not attended in person. The bench sheet records that the tribunal Registrar searched the tribunal’s file for any alternative phone number by which to contact Mr Johnson, but “none found”.
The bench sheet records that, in the absence of Mr Johnson or anyone on behalf of the appellant, the tribunal Registrar ordered that the appellant’s application to set aside the orders made on 7 April 2021 “is dismissed” and concluded the hearing at 10:53am.
The bench sheet records that after the conclusion of the matter, a registry officer came to the hearing room and advised the tribunal Registrar that Mr Johnson had telephoned the Tribunal to provide a different mobile number on which he could be contacted. By this stage, the hearing had concluded and the tribunal’s call with the respondent had been terminated.
The tribunal Registrar nevertheless telephoned Mr Johnson on the number he had provided to the tribunal’s registry officer earlier that morning. Mr Johnson stated that he had “phone problems” and said that they “would be addressed”. The tribunal Registrar noted that another representative for the appellant could have participated in the hearing if Mr Johnson had “phone issues”, and that no alternative number have been provided by which the tribunal could contact anyone on behalf of the appellant in relation to the application. There was no suggestion that Mr Johnson was unaware of the hearing. Mr Johnson indicated his intention to make a further application for the orders to be set aside.
By letter dated 4 May 2021, the tribunal sent a copy of the order made on 4 May 2021 to the parties.
On 5 May 2021 Mr Johnson sent an email to the tribunal stating:
We continue to have technological barriers for this hearing and we apply to have the matter heard in person so that the case can proceed.
On 5 May 2021, the tribunal received another application for interim or other orders from the appellant, this time dated 5 May 2021, by which Mr Johnson asked for the orders to be set aside and for the tribunal to organise a “face-to-face directions hearing”.
The application stated:
Again I was available at the nominated time and had my telephone on. The call from ACAT did not come in. I expected that my telephone was in reception range as there was still 1 bar of reception indicated. I tried to call in at 10.45 - but my phone showed a “not in service area” message. I then borrowed a telephone and rang in at 10.50 asking about the conference. I was advised by a separate call at 11.00am that the orders had been issued in my absence. I receive notice on my phone at 11.12am that I had missed 2 phone calls.
This is the 2nd time that the matter has been hampered by technological barriers and I feel it is best for this matter to be heard in person so that the case can proceed to a just outcome.
…
I apologise for the delays but they have been based on technological barriers which I now seek to overcome by applying for a face to face hearing to allow for directions to be made for the case.

In substance, Mr Johnson was asking the tribunal to put aside everything that had occurred to date, over the previous 18 months, and to begin again.
In his application, Mr Johnson also alleged that the respondent’s case “is without merit” and that the respondent was attempting “to extort money from our company through intimidation and inappropriate use of public institutions”. He said that written or verbal evidence would be required from two other parties “and an FOI with ACT Police”. There was no evidence that any of these steps had been taken.
On 12 May 2021, the tribunal made the following order:
Being satisfied pursuant to section 32 of the ACT Civil and Administrative Tribunal Act 2008 that the application lacks substance and is an abuse of process:
The Tribunal Orders:
1.The respondents Application for Interim or Other Orders dated 5 May 2021 will not be listed for hearing and is dismissed.
On 12 May 2021, the tribunal sent an email to the parties by which it provided its reasons for its orders made on 12 May 2021. The reasons, in summary, noted the procedural matters set out above following which the tribunal stated:
Prior to lodging the 7 April 2021 set-aside application, the respondent’s[6] participation in this matter was limited to lodging a Response. The respondent failed to attend at all four (4) listings of the matter, including the hearing on 4 May 2021 of the respondent’s 7 April 2021 set-aside application. The reason given by the respondent’s representative for failing to participate in ACAT listings is that he has experienced phone reception problems. In the 7 April 2021 and 5 May 2021 set-aside applications, the grounds provided by the respondent for having failed to attend the ACAT listings is phone reception issues. The respondent appears to have taken no action, up to and including 7 April 2021, to confidently and effectively address the issue. The applicant[7] has attended at each listing of the matter. The hearing on 4 May 2021 was in fact prolonged in order to give the respondent’s representative an opportunity to participate, however when, after 20 minutes he could not be contacted, orders were made ex parte.
I have taken into account the objects and principles of the ACT Civil and Administrative Tribunal Act 2008 set out in sections 6 and 7. I consider that it is reasonable for parties to expect that matters will be finalised as quickly as possible. Given the circumstances set out above, I consider that the respondent’s 5 May 2021 set-aside application lacks substance and is an abuse of the tribunal’s process. Pursuant to section 32 of the ACT Civil and Administrative Tribunal Act 2007 [sic], I have decided to make orders to not list the respondent’s 5 May 2021 set-aside application for hearing and to dismiss the application.
Given the orders made on 4 May 2021 and today, the orders made on 7 April 2021 continue to operate and the matter is finalised.
[6] The respondent in the email, is the appellant in this appeal proceeding.
[7] The applicant in the email, is the respondent in this appeal proceeding.
By email sent on 13 May 2021, Mr Johnson wrote to express his “dissatisfaction” with the tribunal’s decision “not to relist the matter for hearing”. He contended that the decision “is perpetuating a miscarriage of justice” because the application “holds no substance”, “is without merit and substantial” and because “the matter has not been heard, but due to administrative efficiency is [sic] appears that the application is supported.” Mr Johnson continued by saying that if the tribunal was not willing to reconsider the merits of his objections, he sought clarification on how it could be appealed.
On 18 May 2021 the tribunal acknowledged Mr Johnson’s email and referred him to the tribunal’s website for information about how to appeal.
On 25 May 2021, Mr Johnson sent another email stating that he had read the tribunal’s reasons for its decision not to allow him to proceed with his further set-aside application, and that he believed he had not provided the appropriate information to justify the tribunal considering his further set-aside application.
Mr Johnson attached yet another set-aside application, this time dated 21 May 2021. In it, Mr Johnson made serious allegations against the respondent. He submitted that the appellant’s capacity to participate had been “hampered by inconsistent telephone problems and substantial health limitations”.
On 26 May 2021, the tribunal advised Mr Johnson that it was rejecting his further set-aside application and referred to the order made on 12 May 2021. The tribunal advised Mr Johnson that if he remained dissatisfied the appropriate avenue was to appeal the final orders made in the matter.
By email sent on 18 June 2021, more than three weeks later, Mr Johnson filed an application for appeal against the decision made on 7 April 2021. The application attached a lengthy document headed “Response by the respondent” that set out Mr Johnson’s view about what occurred in November 2019 in connection with the respondent’s use of the appellant’s taxi. The document said nothing about why he did not attend the hearing on 7 April 2021 when the order was made.
By email sent on 18 June 2021, the tribunal informed Mr Johnson that, ordinarily, an application for appeal must be filed not later than 28 days after the day on which the decision he wished to appeal was made, and that if he wished to proceed with his appeal he would need to file an application to extend time to making the application for appeal.
Mr Johnson did not reply. By email sent on 1 July 2021, the tribunal wrote to Mr Johnson enquiring if he wished to proceed.
By email sent on 6 July 2021, Mr Johnson said he did wish to proceed. On the same day, Mr Johnson filed his application for leave to extend time.
On 11 August 2021 I made the following order:
The applicant on the application for interim or other orders dated 6 June 2021 (corrected to 6 July 2021) has leave to file an application for appeal against the order made on 7 April 2021 by 5pm on 18 August 2021.
On 11 August 2021, I conducted a directions hearing in relation to the appellant’s application to extend time. I did so because it was apparent from the appellant’s document “Response by the respondent” attached to his application for appeal that Mr Johnson did not appreciate that an initial question was why the order made on 7 April 2021 should be set aside in circumstances where he had been sent written notice of the hearing and did not attend.

Appeal proceeding AA 41 of 2021

On 11 August 2021, I made an order staying the tribunal’s order made on 7 April 2021; a series of procedural directions including orders that the parties file a list of the errors of fact or law or discretionary errors in the decision; any further evidence of which either party wish to rely; and written submissions in support of the appeal. I also made an order, at Mr Johnson’s request, that the matter be listed for mediation on 23 September 2021 at 10:00am.
At the directions hearing, I explained to Mr Johnson that before moving to the merits of the respondent’s civil dispute application filed on 24 February 2020, or his defence of it, the tribunal would first need to be persuaded why the order made on 7 April 2021 should be set aside in circumstances where the appellant was notified of the hearing and did not attend.
In an effort to be sure Mr Johnson understood the first question arising on the appeal, at the end of my written orders made on 11 August 2021, I wrote:
And the Tribunal notes
On the appeal against the order made on 7 April 2021, the first question will be whether and why the order made on 7 April 2021 should be set aside. Any consideration of the merits of the applicant’s original claim dated 18 February 2020 arises if and only if the order made on 7 April 2021 is set aside.
On 25 August 2021, the appellant filed its application for appeal. The respondent objected to the late filing in circumstances where the appellant had been given leave to file by 18 August 2021. In an email to the tribunal, the respondent wrote about Mr Johnson and the appellant’s conduct as follows:
This shows that the other parties had ample opportunity to take part in the proceeding, he has consequently refused to engage and respect procedure orders. This appellant is made in bad faith.
…
In addition to that from 7th of April till now he’s just kept saying there is errors, misunderstanding and technical barriers.
Obviously, he has no respect for my time and more importantly ACAT’s time.
The presidential member asked me to give him one [more] opportunity but he already lost it. Definitely, it was his last chance.
On 8 September 2021, I conducted a further directions hearing in an effort to address the impasse. I determined that the question of whether the order made on 7 April 2021 should be set aside needed to be dealt with as a separate and preliminary question before addressing the merits of the parties’ respective claims. I therefore made the following order:
The appeal is listed for hearing commencing at 10:00am on 13 October 2021 on the preliminary question of whether the order made on 7 April 2021 should be set aside.

Submissions on the preliminary question

The appellant made three primary submissions as to why the orders of 7 April 2021 should be set aside.
First, he submitted that there was no evidence to support the quantum of the respondent’s claim that “can be considered as suitable, comprehensive or factual as to the claimed debt”. He submitted that the respondent relied only on “selective” mobile text exchanges, and that a complete set of texts would provide “the full picture”. Mr Johnson submitted that the award “cannot be justified under any circumstances with the exception of blatant misleading statements” by the respondent. He submitted that the respondent is “not a credible witness/applicant”. He submitted that a “simple line of inquiry would have uncovered a substantial weakness” in the respondent’s application. Mr Johnson wrote many pages describing the strength of the appellant’s case, the wrongs of the respondent’s case, the amount that the appellant owed the respondent, a greater amount that (he said) the respondent owed the appellant because of the alleged negligence of the respondent who, he says, damaged the taxi assigned to him and “the unreasonable and plainly unjust nature of the order” made on 7 April 2021. Mr Johnson submitted that the order must be set aside to enable the appellant to put its case.
Second, Mr Johnson alleged that the applicant “has been deceptive and misleading” by making financial claims against the appellant and by failing to disclose material and relevant facts. He submitted that “on no basis could his claims amount to the award of damages”. He submitted that the tribunal was in error to award damages based on facts supplied by the applicant that were in error.
Third, Mr Johnson submitted that he had been hampered due to “technical difficulties” he experienced in receiving calls from the tribunal at the allocated times. He submitted that he called the tribunal as soon as it was apparent that the “telephone connection was failing”. Mr Johnson also relied on a “necessary medical limitation to the travel away from his residence due to health matters”.
The respondent submitted that Mr Johnson has had “ample time and opportunities” to attend the hearings. He submitted:
It is not fair and justice that I worked for Petar Johnson who has kept my income for almost two years, moreover, being absent for all hearings with no reasonable and acceptable reasons.[8]

Consideration

[8] Respondent’s statement provided on 27 September 2021

At different times and for different reasons, courts and tribunals have repeatedly stated the importance of conducting litigation and resolving disputes in a timely manner. I mention some examples.
In Davies v Pagett,[9] the Federal Court discussed relevant principles to be considered when deciding whether a default judgment should be set aside. The Court noted that it is a discretionary question for the Court based on the facts and circumstances that led to the entering of the default judgment. Key considerations are whether the person against whom the default judgment was entered was aware of the other party’s intention to apply for default judgment and, if so, why the first-mentioned person did not attend the hearing and oppose the default judgment at the time.
[9] (1986) 10 FCR 226
The Federal Court also noted that the prejudice to the party against whom default judgment was entered needs to be weighed against the prejudice to the party who holds the benefit of the default judgment. The Court also said:
But there is in my view another type of prejudice which falls for consideration and it is a prejudice which cannot really be ameliorated by way of costs. I refer to the anxieties which accompany litigation in which ordinary people become involved. The delays experienced in our civil courts are a threat to the administration of civil justice, they tend to bring the law into disrepute. Such delays promote confusion and frequently impede the ultimate fact finding processes, as time dulls memory. The Rules of Court were designed to promote the orderly procedures of litigation and the time limits imposed are intended as an aid to reasonably prompt disposal.[10]
[10] Davies v Pagett (1986) 10 FCR 226, 230, quoting Evans v Bartlam [1937] AC 473 at [489] (Lord Wright)
In the tribunal, the ameliorating option of awarding costs against the party who asks for the default judgment to be set aside is not available because the tribunal is a ‘no costs’ jurisdiction.
In Stormer Building Group Pty Ltd v Johnson and Johnson,[11] the ACT Supreme Court, per Mossop M (as he then was) noted that these comments by the trial judge were commented on favourably by members of the Full Court of the Federal Court. Mossop M added:
I would particularly associate myself with the comments about the delays in civil courts being a threat to the administration of justice.[12]
[11] [2014] ACTSC 23
[12] Stormer Building Group Pty Ltd v Johnson and Johnson [2014] ACTSC 23 at [14] (Stormer)
In Aon Risk Services Australia Ltd v Australian National University, the High Court ruled that the University should not have been granted leave to amend its claim at a late stage primarily because of the importance of timely resolution of litigation. French CJ said:
The ACT Rules, like their precursors, confer the discretion to give leave to amend and impose the duty to make amendments for the purpose of deciding the real issues …. But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation.[13]
[13] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 at [24] (Aon)
The High Court drew on earlier decisions to note the responsibility of judges to ensure “that the limited resources which the State commits to the administration of justice are not wasted by the failure of parties to adhere to trial dates of which they have had proper notice.”[14]
[14] Aon at [25]
In Commissioner for Social Housing v Williams,[15] the President of this Tribunal, President Neate AM, refused an application to appeal out of time. The President referred to a decision of the Court of Appeal (UK), Mitchell v News Group Newspapers Limited,[16] in which the Court commented on the need to consider why the appeal was not filed within time when deciding whether to exercise a discretion to permit the application to be filed out of time. The Court said:
If there is a good reason for it the court will likely to decide that relief should be granted. For example if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then depending on the circumstances, that may constitute a good reason ... But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason.
[15] Commissioner for Social Housing v Williams [2017] ACAT 53 (Williams)
[16] [2013] EWCA Civ 1537 at [41]
In Williams, President Neate referred to case management rules that require a matter to be decided according to law but also as quickly, inexpensively and efficiently as possible. He said:
20. The decisions quoted above support an approach that is consistent with managing the diverse range and high volume of matters that come to the Tribunal. There is no doubt that dealing with applications for extensions of time to lodge appeals (as well as analogous applications for variations of directions in relation to matters proceeding to a hearing) takes time as well as member and other resources that could be used (and in some cases have already been allocated) for other substantive matters. In other words, the amount of attention required to deal with matters such as this necessarily displaces resources that could be used to deal with other aspects of the Tribunal’s work.
21. The approach underpinning those judgments is also consistent with:
(a)the object of the ACAT Act “to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice;” and
(b)the statutory principle that, in exercising its functions under the ACAT Act, the Tribunal must ensure that its procedures are “as simple, quick, inexpensive and informal as is consistent with achieving justice.” [17]
[17] Williams at [20]-[21]
The decisions in Aon, Stormer and Williams are binding on me when considering the appellant’s application to appeal from the orders made on 7 April 2021.
The question whether to set aside an order made ex parte (meaning in the absence of the party against whom it was made), and thereby to deprive the person who has the benefit of that order, involves an exercise of discretion. That exercise requires consideration of all the circumstances, in particular the circumstances in which the order was made in the absence of the party against whom it was made.
On appeal, my task was to consider whether the discretion was reasonably exercised even if I, or another tribunal member, might have decided the question differently. In this case, I therefore needed to consider whether the tribunal erred in its discretion to proceed to assess the respondent’s claim on 7 April 2021 in the absence of the appellant consequent upon the default judgment that had already been entered.
The appellant contends that the orders of 7 April 2021 should be set aside because the respondent’s claim lacked merit as discussed above and because the appellant was “hampered” in his defence of the case arising from his “technical difficulties” in receiving calls and because of his “necessary medical limitation” to travel away from his residence.
I begin with perhaps the most important issue: the appellant’s explanations for not attending the hearing of which he had notice.
Mr Johnson contended that he has poor telephone reception at his home. However, as Mr Johnson acknowledged in the appeal hearing before me, he has lived at his home for many years. He has always known that he has poor telephone reception at his home.
Mr Johnson provided a mobile telephone number for the purpose of participating in the hearing on 7 April 2021 and the earlier hearings in the original proceeding. If Mr Johnson had been motivated to participate in the hearing, he could and would have made arrangements to ensure he was at a place with good mobile coverage without risk of the problems that can come with poor reception. The need to do so had already been demonstrated by the hearings on 2 February 2021 and 17 March 2021 when the tribunal’s several calls to his phone were not answered.

Mr Johnson’s indifference to the tribunal’s processes is demonstrated by his statement on 7 April 2021, after the orders were made, that he would, in future, ensure he was in “a region of good telephone coverage in order to ensure that this does not happen again”. Notwithstanding that statement, he made no effort to ensure he had good telephone coverage on 4 May 2021 for the purpose of participating in the appellant’s own application to have the orders of 7 April 2021 set aside.
The record shows this to be Mr Johnson’s consistent approach to the respondent’s claim brought against his company. Per paragraphs 24, 27, 31 and 44 above, Mr Johnson has failed to attend hearings on 2 February, 17 March, 7 April and 4 May 2021, about which he was notified, yet he contends that the Appeal Tribunal should nevertheless start again in the interests of justice. I disagree.
The appellant has been given ample opportunity to present its case. That it did not do so is an outcome for which Mr Johnson is responsible. Where the administration of justice calls for a timely and efficient resolution of disputes, and where this litigation has been occurring for nearly two years consequent upon Mr Johnson’s failure to participate in the process, I see no error in the tribunal’s decision to proceed to an assessment of the respondent’s claim notwithstanding the appellant not attending the hearing of which it had been notified. I would have done likewise. Mr Johnston’s approach to this litigation has been avoidance and delay. That approach should not be permitted to frustrate the processes of the Tribunal.
Referring to the second consideration, I am not persuaded that Mr Johnson’s medical circumstances prevented him from travelling from his home. None of the medical evidence that Mr Johnson provided to the Appeal Tribunal supports that claim. At best, the medical practitioner reports Mr Johnson’s advice that he has “experienced difficulties” including “driving long distances” arising from his condition. Further, contrary to that claim at paragraph 35 above, Mr Johnson said that he would drive to a city area to ensure good mobile coverage for future hearings. There is no suggestion of an inability to do so.
I make a similar observation about Mr Johnson’s contention that the respondent’s claim against the appellant is without merit. If that is Mr Johnson’s view, he could and should have attended the hearings held for the purpose of determining the respondent’s claim to argue his case. He did not do so for reasons for which he has only himself to blame.
Particularly in small claims such as that made by the respondent, the tribunal has an overarching obligation, per the objects stated in section 6 of the ACAT Act, to ensure that claims “are resolved as quickly as is consistent with achieving justice”. As discussed above, achieving justice involves more considerations than ensuring, come what may, that a particular claim is heard and determined. There are competing considerations of delay, avoidance and timeliness. As discussed above, the appellant has had many opportunities to put its case and has chosen not to take any of them. In the circumstances, I am not persuaded that the appellant should, now, be given yet another opportunity to defend the claim, or bring its own cross claim, arising out of events that occurred more than two years ago.
In my view, to set aside the orders made on 7 April 2021 in circumstances where the appellant has had repeated opportunities to defend the claim against it would be contrary to the proper administration of justice.
For these reasons, I endorse the order of the tribunal made on 4 May 2021 to dismiss the appellant’s application to set aside the orders made on 7 April 2021. Where the appellant had his opportunity to be heard regarding his application to set aside the orders, and did not take it, I also endorse the tribunal’s order made on 12 May 2021 not to list his further application for the orders to be set aside. I agree that to file a further application, in the face of his earlier application that had already been dismissed, was an abuse of the tribunal’s process.
It remains only to adjust the orders that were made on 7 April 2021. Rather than paying the money it was ordered to pay, the appellant appealed and, by doing so, further delayed its obligation to pay. Where the appeal is unsuccessful, it follows that the appellant should pay interest on the debt owed to the respondent, calculated at the statutory rate from when the respondent brought his claim to the date of my orders in this appeal.[18] I will make orders accordingly.
[18] Court Procedures Rules 2006, rule 1619

………………………………..

Presidential Member G McCarthy

Date(s) of hearing:	13 October 2021
Applicant:	Mr P Johnson, authorised representative
Respondent:	In person