GIRDLER & RADOLL and BIRD (Residential Tenancies)
[2011] ACAT 5
•18 January 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GIRDLER & RADOLL AND BIRD (Residential Tenancies) [2011] ACAT 5
AA 10/38
RT 867 OF 2008
Catchwords: RESIDENTIAL TENANCIES – application for leave to appeal out of time – compensation for wrongful termination of residential tenancy – onus of demonstrating reasons why leave should be granted to appeal out of time – reasons why the Tribunal did not exercise discretion to allow the application for leave to appeal.
List Legislation: ACT Civil & Administrative Tribunal Act 2008,
s79
ACT Civil & Administrative Tribunal Procedural Rules 2009
(No 2) Rules 13, 13C, 14 and 22
Tribunal: Mr C. Chenoweth, Acting Presidential Member
Date of Orders: 18 January 2011
Date of Reasons for Decision: 27 January 2011
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 38 of 2010
RT 867 of 2008
BETWEEN:
MARK GIRDLER
Applicant
AND:
PETER RADOLL & JENNIFER BIRD
Respondents
TRIBUNAL: Mr C. Chenoweth, Acting Presidential Member
DATE: 18 January 2011
ORDER
1.Application for leave to appeal out of time is refused.
2.Reason for Decision to be provided by the Tribunal within 14 days.
………………………………..
Mr C. Chenoweth
Acting Presidential Member
REASONS FOR DECISION
This is an application for leave to appeal from a decision of the Tribunal dated 12 January 2009. That was a decision by Member Lennard arising from an earlier decision of hers made on 26 November 2008 that damages were to be paid by the Applicant to the Respondents because of the wrongful termination of a residential tenancy. The application was opposed by the Respondents.
The Applicant owned a residential property that had been leased to the Respondents for many years. A notice to terminate was give to the Respondents by the agent for the Applicant. The Respondents did not wish to leave, but ultimately did so. Subsequently, the Respondents received advice that the termination was unlawful and sought damages in the Tribunal for the costs related to their move to other premises, and for other losses.
The decision that was made by Member Lennard on 26 November 2008 was that as a consequence of the wrongful termination of the residential tenancy the Applicant was to pay $14,154.92 to the Respondents. On 5 December 2008 the Applicant sought to set this decision aside, and the matter was reheard by Member Lennard on 19 December 2008. The application to set the decision aside was refused, and the matter was adjourned until 12 January 2009 for consideration of an appropriate payment schedule for the moneys previously ordered to be paid, to be agreed if possible between the Applicant and the Respondents.
On 13 January 2009, a payment schedule was agreed and signed between the Applicant and the Respondents, providing for payment by 12 monthly instalments of the amount originally ordered. This agreement was made the subject of an Order in Chambers on 20 January 2009. The Applicant has paid all of the money.
On 11 November 2010 the Applicant lodged an application for leave to appeal out of time against the order of 12 January 2009. The application was one year and nine months after the expiry of the 28 day appeal period.
While the application for leave to appeal out of time referred just to the decision of 12 January 2009, in order for any appeal to be successful the Applicant would also have needed to have been given leave to appeal against the orders of 26 November 2008 and 19 December 2008. I deferred the question of whether the application for leave to appeal out of time could be amended in this case to include those other orders, pending consideration of other matters.
Appeals against an initial decision of the Tribunal are permitted by section 79 of the ACT Civil and Administrative Tribunal Act 2008 (the “ACAT Act”). The decision may be appealed on a question of fact or law. The appeal is to the Appeal Division of the Tribunal.
Rule 14 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (the “Rules”) provides that an appeal must be lodged within 28 days of the date of the original decision appealed against. Rule 13 sets out the appeal notice requirements. If the application is made for leave to appeal out of time, Rule 22 has specific requirements which are to be included in the application.
In view of the decision that I have come to it is not necessary to describe in detail the shortcomings in the application when compared with the requirements of these Rules. They are substantial, and fail to give to the Tribunal and the Respondents a clear view of the basis of the application and evidence that would be advanced to support it.
The Applicant bears the onus of demonstrating to the Tribunal the reasons why leave to appeal out of time should be granted. There must be credible reasons for the delay. A failure to actively investigate the right to appeal or to take advice from informed sources cannot justify a delay of some 21 months after the end of the appeal period.
The Applicant’s representative stated that following the decision of the Tribunal on 19 December 2008, he sought advice from officers of the Magistrate's Court registry and from a senior Queen's Counsel at the Canberra bar about the prospect of appeal. The advice from both was that the only avenue of appeal was to the High Court of Australia. The Applicant decided that he could not afford this and did not press the matter further. The Applicant's father also sought advice from a solicitor he knew concerning the question of costs, but did not get advice about the prospect of an appeal. Although the original case concerned a rental property, no advice was sought from the agent handling the property or from the agent who subsequently took over management. The Applicant stated that he only became aware of the appeal rights within the Tribunal when the matter was raised in a conference in relation to another matter within the Tribunal in which the Applicant was a party.
During this period the Applicant continued to pay to the Respondents the amounts that had been agreed to.
It is not up to the Respondents to demonstrate why leave to appeal out of time should not be granted. They opposed the application.
The Respondents have had the benefit of the original decision and they have also received the monies ordered by the Tribunal to be paid. On general principles, in the absence of a successful appeal made within the prescribed period set out in the Rules the Respondents are entitled to the benefit of the decision and to retain the money. There would need to be extraordinary circumstances warranting the granting of leave to appeal after all this time.
There are sound public policy reasons for only granting an extension of time to lodge an appeal very sparingly, and only where there are strong grounds. The later the application, the greater the burden on the Applicant to justify it. The work of the Tribunal cannot proceed where parties have the opportunity to go back over the years and re-contest matters which have been decided. The Respondents have received the benefit of the decision and made use of the monies ordered and paid. To reopen the matter, with the possibility that they would have to refund these monies after this time, would impose a significant burden on them.
It is also appropriate for the Tribunal to consider whether there is a substantive prospect of overturning the original decision on a re-hearing. Although the application for leave to appeal out of time is not of itself a re-hearing of the matter, one consideration that the Tribunal can take into account is whether the original decision is likely to be overturned. It is for this reason that under
Rule 13 (c) of the Rules, the appeal notice should include details of further evidence that is to be put, and set out what is sought to be proved by that evidence. This was not done in this case, and the Tribunal had to rely upon statements from the Applicant and his representative. These did not provide any credible reasons to suggest that an appeal may be successful.
There were assertions by the Applicant (disputed by counsel for the Respondents) that at the hearing before the Member on 19 December 2008, the Applicant was refused the opportunity to call a witness, Mr Ross, who was available. The witness would have given evidence concerning the intentions of the Applicant following the giving of the notice to terminate the tenancy.
Mr Ross was present and gave evidence before the Tribunal in this hearing. He said that he had listened to the audio recording of the earlier case, and acknowledged that there was nothing in the audio record which would support the claim that the Member hearing the case had prevented him from being called as a witness.
Parties to a hearing must prepare and conduct their own cases, although the Tribunal can and does assist in the presentation of these where appropriate. I am not satisfied that the Applicant was prevented from presenting his case by the Member hearing the original case. On the material before me, I cannot see any serious prospect of the decision being overturned on a re-hearing.
There was no satisfactory explanation as to the reason, if any, for the very great delay in making the application for leave to appeal out of time. During the period of delay the Applicant had paid the money directed by the Tribunal and the Respondents had received it and used it appropriately for their own purposes.
The lack of credible explanation as to the delay is of itself sufficient grounds for refusing the application.
If there had been some explanation for the delay, it may have been appropriate to then have considered whether the application for leave should be amended to refer to all of the decisions of the Tribunal in this matter. In view of the decision that I have come to this is not necessary to consider. Nor was it necessary to consider further consequences of the substantial failures to comply with the Rules in the form in which the application was lodged with the Tribunal.
The general policy of the need for finality in the litigation processes and the need to ensure that a successful party may retain the benefits of a judgement or decision after the appeal period has terminated, and the hardship and inconvenience that would be caused by the Respondents having to face another hearing and the prospect of repaying the money after all this time if the matter was reheard and the application went against them, are all further reasons for not exercising the discretion to allow the application.
Having considered all of these matters, I determined that the application should be refused.
………………………………..
Mr C. Chenoweth
Acting Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AA 10/38
APPLICANT: MARK GIRDLER
RESPONDENTS: PETER RADOLL & JENNIFER BIRD
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT: Harold Girdler
RESPONDENTS: Peter Radoll &
Jennifer Bird
S. Alonso, Tenants Advice Services
TRIBUNAL MEMBER/S: Mr C. CHENOWETH,
ACTING PRESIDENTIAL MEMBER
DATE OF HEARING: 18/01/2011 PLACE: CANBERRA
DATE OF DECISION: 27/01/2011 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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