Hilyard and Mainore Pty Ltd (Residential Tenancies)
[2013] ACAT 16
•22 March 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HILYARD & MAINORE PTY LTD (Residential Tenancies) [2013] ACAT 16
AA 12/57
Catchwords: RESIDENTIAL TENANCIES – appeal hearing as a review of the original decision on the grounds of appeal – elements of natural justice: procedural fairness – whether the appellant was denied procedural fairness – whether delay in proceeding increased damages payable – mixed question of fact and law: whether the appellant could rely on a procedural flaw in the earlier proceedings which was later corrected – whether the tribunal should have delayed its decision pending resolution of the appellant’s complaint to authorities about alleged perjury by the respondent’s director.
List of Legislation: ACT Civil and Administrative Tribunal Act 2008, ss. 48 and 82
Residential Tenancies Act 1997, s.62
List of Cases: Luxer Holdings Pty Ltd v. Glentham Pty Ltd
[2007] WASCA 209
R v Traino (1987) 45 SASR 473
List of Texts/Papers:
J R S Forbes, Justice in Tribunals, (3rd ed, 2010, The
Federation Press)
Tribunal: Mr C.G Chenoweth – Acting Presidential Member
Date of Orders: 22 March 2013
Date of Reasons for Decision: 22 March 2013
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL )
AA 12/57
BETWEEN:
KATHERINE HILYARD
Appellant
AND:
MAINORE PTY LTD
Respondent
TRIBUNAL: Mr C.G Chenoweth – Acting Presidential Member
DATE: 22 March 2013
ORDER
The Tribunal orders that the decision of 8 November 2012 is confirmed.
………………………………..
Mr C.G Chenoweth
Acting Presidential Member
REASONS FOR DECISION
Background
This is an appeal from a decision and order of Presidential Member Symons, dated 8 November 2012. The decision and order were in consolidated matters RT 12/452 and RT 12/649. The order dismissed the appellant’s application in proceedings RT 12/649 (that the forfeited bond of $3,800 be returned to her) and ordered that in matter RT 12/452, the appellant pay compensation to the respondent in the sum of $17,200 within 28 days of the order.
The appellant leased a residential property at unit 7, 110 Giles Street Kingston, ACT ("property") from the respondent on 26 November 2010. The lease was for a period of two years. The rent for the first year was $950 per week and for the second year was $1000 per week.
The appellant vacated the property on 27 April 2012. The appellant claimed that her vacation of the property was as a result of an agreed termination of the lease. The respondent claimed that the lease had been abandoned and that it had not agreed to the termination.
The respondent had appointed an agent, Peter Blackshaw, Manuka ("agent"), to manage the property and almost all the relevant communications were between the appellant and the agent rather than directly with the respondent.
On 27 April 2012, in matter RT 12/452 the agent on behalf of the respondent commenced proceedings in the ACT Civil and Administrative Tribunal ("tribunal") seeking confirmation of the tenancy and compensation for rent and damages to the property. While the application identified the property the subject of the application as being in Bruce ACT, it is clear that it referred to the property in Kingston.
On 23 May 2012, in matter RT12/452 an order of the tribunal was made directing the bond under the lease to be released to the landlord. Liberty was given to apply to relist the matter for any further issues after a new tenant was found.
On 8 June 2012, the appellant commenced proceedings in the tribunal against the respondent. This was in matter RT 12/649. The action was for refund of the bond and a declaration that the tenancy had been terminated by agreement on 27 April 2012.
The matter was set down for hearing on 12 July 2012. The tribunal received a request from the respondent that the hearing be adjourned as its director was on leave. On 9 July 2012, the registrar of the tribunal adjourned the matter to 7 August 2012. This date was subsequently vacated and a conference set for 21 August 2012 in this matter and also in matter RT 12/452. The matters were then consolidated and heard together.
On 21 August 2012, the tribunal ordered that both matters be heard on 20 September 2012 and that the matters had to proceed on that date. The appellant's representative Mr Guy Forsyth was present at the hearing.
On 14 September 2012, the appellant sought to issue a subpoena in the tribunal against the agent, and sought to adjourn the hearing set for the 20th September pending a response by the agent and the opportunity to consider materials produced. The tribunal advised that the matter would proceed on the nominated day. The subpoena was complied with, even though it was not served until the day before the hearing.
On 20 September 2012, both matters were heard before Presidential Member Symons. The appellant was not present at the hearing. She was in Melbourne. She had appointed Mr Forsyth under a power of attorney as the person who would represent her at the hearing. The appellant gave evidence by telephone and was cross-examined by the solicitor for the respondent. The managing director of the respondent gave evidence and was cross-examined by the representative of the appellant. An extensive amount of documentation was produced, as set out in paragraph 6 of the reasons for the decision under appeal. Submissions were made by both parties on the issue of the extent of damages, having regard to the limits imposed by section 62 of the Residential Tenancies Act 1997 (the RT Act).
On 9 October 2012, the attorney for the appellant advise the tribunal that a submission had been lodged with the Australian Federal Police claiming that the director of the respondent who had given evidence in the tribunal had committed perjury in that evidence.
On 8 November 2012, Presidential Member Symons ordered that the appellant's application in matter RT 12/649 be dismissed, and that the applicant was to pay the respondent in matter RT 12/452 the sum of $17,200 within 28 days of the order. This payment was in addition to the forfeiture of the bond of $3,800 which had been ordered previously. Detailed written reasons were given for the decision. There was also an order for costs made against the appellant in earlier interlocutory proceedings, which was not appealed against.
The hearing was conducted on the basis that if the tenant had been entitled to terminate the lease then the order forfeiting the bond would be vacated and the bond returned to the tenant. In view of the reasons for decision under appeal, this outcome did not arise and the landlord was entitled to retain the bond as part of the damages it had incurred.
The Appeal
On 6 December 2012, the respondent lodged an appeal against the order of 8 November 2012. There was no cross-appeal by the respondent. The notice of appeal set out five grounds for the appeal. They were as follows:
(a)The appellant had been denied procedural fairness in the hearing, because she was not able to be present because of a commitment in Melbourne on that day. The appellant pointed to an earlier adjournment given to the respondent due to the absence of its director on holidays. The appellant claimed that the granting of an adjournment for one purpose and a failure to grant an adjournment requested by the other party for another purpose amounted to a breach of the rules of procedural fairness.
(b)The respondent's delay in causing the matter to be heard had contributed to the appellant's damages. The delay arose from the adjournment granted to the respondent to allow its director to take a holiday.
(c)The failure of the tribunal to hear the matter promptly and the use by the respondent of an address in proceedings that the respondent knew was not the current address of the appellant.
(d)A failure by the tribunal in the proceedings to consider evidence relating to access to a storage cage at the property.
(e)A claim that tainted testimony had been given to the tribunal by the respondent's director, amounting to perjury, and this raised the question of whether the tribunal's proceedings should have been stayed pending an investigation by the Australian Federal Police and the Director of Public Prosecutions.
Section 82 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides as follows:
"An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal –
(a) as a new application; or
(b) as a review of all or part of the original decision on the application by the tribunal.”
I determined that the appeal should not be considered as a new application, but should be limited to a review of the original application on the grounds set out in the notice of appeal. Having perused the transcript of the original hearing, the detailed and comprehensive reasons for decision appealed from and the specific matters specified in the notice of appeal, I was satisfied that this was the appropriate course.
Following the filing of the notice of appeal on 6 December 2012, there were directions hearing held before the Appeal President on 21 December 2012 and on 11 January and 15 February 2013. The order of 11 January 2013 included an order for costs of $200 payable by the appellant as a result of the failure by the appellant to appear at the December directions hearing. There has been no appeal against this order.
On 8 February 2013, the appellant filed materials by way of submissions in the matter. The respondent filed submissions in response on 13 February 2013. Included in these was a statement by Ms Rochelle Print, a property manager of the agent.
On 19 February 2013, the appellant filed further submissions in reply. Included in these was an unsigned undated statement by the appellant. At the hearing of the appeal on 22 February the appellant was not present. Her representative said that she had decided to attend a commercial commitment elsewhere on that day. The representative attempted to contact her to see if she could attend the hearing, and be cross-examined on the statement if it was to be admitted, but these attempts were unsuccessful. I declined to admit the statement as evidence in the appeal.
In response to the appellant’s submissions in reply, the respondent filed revised submissions on 21 February 2013, including a signed and dated statement of Ms Eleanor Earley, who was an employee of the agent. The statement addressed an issue in the appellant’s statement referred to in paragraph 19, concerning the alleged failure to receive an e-mail. Ms Earley was present at the hearing and available for cross-examination by the appellant’s representative. I admitted the statement but the appellant’s representative said that he did not wish to cross-examine Ms Earley on it.
No verbal evidence was given by either party in the appeal and the matter proceeded on the basis of submissions filed and verbal argument on the notice of appeal. Following the hearing of the appeal, the respondent handed up further submissions. I admitted these and allowed the appellant 14 days to respond to these. Submissions in reply by the appellant were filed on 8 March 2013.The respondent was given a further seven days to respond to any of the appellant’s submissions. Further submissions were received from the respondent on 15 March 2013. The issues in the appeal were well ventilated in both oral argument and written submissions.
The tribunal is required to conduct its hearings in accordance with the rules of natural justice. Natural justice, or its alternative name of procedural fairness, is a rule of law that addresses the procedures to be adopted by a tribunal where it makes a decision having an effect on the rights or obligations of a party. It has two basic elements (or "twin pillars".) These are firstly, the right of a person to be properly heard in any proceedings (including administrative actions) where a person's legal rights are adversely affected, and secondly, the right to a decision maker whose mind is open to persuasion and is free from bias. (See generally
J R S Forbes, Justice in Tribunals, (3rd ed, 2010, The Federation Press), at page 105, and following.)
No allegation of personal bias has been made against the decision maker in the decision under appeal. The appellant has contended that because the respondent was allowed an adjournment of the hearing, a similar decision should have been made on her application to adjourn the proceedings to be held on 20 September 2012. As the appellant put it in item 1 under the heading "Questions of Law or Fact", "[a]s such, it is procedurally unfair to accommodate a party (company or person) for a holiday and not accommodate another party for a scheduled work commitment. As a result, the denied adjournment compelled the Appellant to appear by telephone. The Respondent solicitor cast continual aspersions throughout the hearing on the failure of the Appellant to attend in person. The Appellant was also placed at a distinct disadvantage in not being able to view documents or hear the testimony of the Respondent or the Respondent’s witnesses."
The tribunal had ordered on 21 August 2012 that the hearing was to be held on 20 September 2012, and that: "Note: matter must proceed on that day." The appellant was aware of this, and yet it was not until 14 September that the appellant sought the issue of a subpoena to obtain further evidence. The reason given for the delay, that the appellant had made an offer of settlement and was waiting for a response, does not assist the appellant in this regard. Whether or not the matter was settled prior to the hearing, it was the appellant’s responsibility to prepare her appeal and if she wanted documents to issue a subpoena within the time set out in the tribunal's rules. No criticism can be made of either the tribunal or the registrar for the failure to grant a further adjournment on this basis. The reasons for the delay set out in paragraph 1 (vi) of the appellant’s submissions filed on 8 November 2013 are quite misguided and provide no basis for delaying the hearing.
First ground of appeal
The first ground of appeal is that the appellant was denied procedural fairness. There is no merit in this ground. The appellant had been notified of the hearing date on 21 August 2012. The hearing was to deal with all of the issues between the parties, including whether the bond should have been forfeited. The hearing was in relation to both the tenant’s application and the landlord’s application, as the matters had been consolidated. The appellant chose to attend the meeting interstate of another body on that day, in her capacity as a councillor of that body. This was the appellant's choice. The tribunal's procedures and the rights of the landlord cannot be held up simply because the appellant has chosen to give priority to a private engagement rather than to prosecute her appeal on the day that she has been notified a month previously.
It was only after the appellant had been advised by the registrar on 14 September 2012 that the hearing on the 20th of September was unlikely to be adjourned to allow documents produced under subpoena to be considered, that the appellant’s representative raised the issue that the appellant was likely to be in Melbourne and unable to appear. The late raising of this issue, after a delay to issue the subpoena had been refused, reflects adversely on the appellant and her credibility in wishing to prosecute her appeal.
The appellant’s submissions dwelt on the alleged failure to give proper notice to the appellant in matter RT12/452, the action by the landlord to recover the bond. It appears that these proceedings were commenced using as the address for service of the appellant, the address of the property from which she had departed. Had these proceedings between the parties been the only ones, and had they not come to the attention of the appellant prior to the order, there would be some merit in the argument.
Any such merit was lost when the matters were consolidated and heard in full on the 20 September 2012. The appellant had every opportunity to argue the issue and as noted earlier in paragraph 14 above, the case proceeded on the basis that if the appellant had been successful in her claim the bond would have been repaid by the landlord. If there was any unfairness in the way that matter RT 12/452 had been originally conducted (and I am not deciding that question), that was resolved by the way in which the proceedings of 20 September 2012 were conducted. The member hearing the matter decided that the appellant had wrongly terminated the tenancy. It followed that the bond was available to offset the damages that the landlord had suffered.
Second ground of appeal
The second ground of appeal was that the delay in hearing the matter caused by the adjournment for the holiday of the respondent’s director had increased the damages payable by the appellant. As a consequence, damages should have been calculated up to some date prior to the hearing. It was argued that the delay in hearing has increased the amount payable by the appellant.
As an aside, it is worth noting that if this argument was correct then if the further delay which the appellant sought (and the refusal of which is claimed to be unfair) had been granted then it would have increased the damages payable by the appellant because of a later hearing date.
The damages payable by a tenant who abandons her lease do not cease when proceedings are taken to enforce the lease. The damages are calculated by the loss of the landlord. These may be able to be more accurately determined after the end of the term, but they can be calculated prior to that with appropriate adjustments for contingencies such as the prospect of re-letting after the date of the hearing.
The law on the subject is conveniently set out in the Western Australia Supreme Court, Court of Appeal case of Luxer Holdings Pty Ltd v. Glentham Pty Ltd [2007] WASCA 209. In that case, the court agreed with the following statements of Buss JA:
…"38. In my opinion, the authorities to which I have referred indicate that the proper approach to the assessment of damages where a lessor sues the lessee for loss of bargain damages, consequent upon the lease agreement having been terminated for breach of an essential term or for repudiation, is, ordinarily, as follows.
…39. Where the trial of a lessor’s action against the lessee occurs before the term of the lease would otherwise have expired, the normal measure of damages is the total rent and outgoing etc that would otherwise have been payable after the date of termination, less:
(a) any amount the lessor has obtained as profits from the use of the premises between the date of termination and the date of trial; and
(b) any amount the lessor is likely to obtain as profits from the use of the premises between the date of trial and the date on which the lease would otherwise have expired,
by re-letting the whole or part of the premises or otherwise. If the lessor has failed to mitigate its damage between the date of termination and the date of trial, it will be necessary to make a further adjustment on that account. Interest will usually be awarded on any damages referable to a period between the date of termination and the date of trial. Also, a discount for acceleration must be applied in calculating any damages referable to the period between the date of trial and the date on which the lease would otherwise have expired. The doctrine of mitigation applies directly in respect of the period between the date of termination and the date of trial. The calculation of damages in respect of the period between the date of trial and the date on which the lease would otherwise have expired is carried out on the basis that the lessor will act reasonably, throughout that period, to mitigate.
The appellant submitted that if the matter had been heard at the earliest opportunity by the tribunal then if the appellant had been found liable for future losses she could have mitigated those losses by subletting the property or using it for staff housing (appellant’s submissions in reply filed 19 February 2013, paragraph 13). The fatal weakness in this argument is that the appellant had already given up the lease and therefore had no right to sublet or allow others to use the property. Had she sought to do so she would have been a mere trespasser on the land.
This ground of appeal is quite misconceived, and it fails.
Third ground of appeal
The third ground of appeal alleged a mixed question of fact and law – a failure in the first proceedings to serve documents at the business address of the appellant. Even if this did happen and the agent of the respondent did not use the alternative address of which it was aware, once the two matters were consolidated and it was made clear by the respondent to the tribunal and the appellant that if the appellant was successful the bond would be repaid, any supposed mischief had been overcome. The appellant cannot rely on a procedural flaw in earlier proceedings where that flaw has been corrected by proceedings in which she has taken part, and where it is clear that no damage could have flowed to her from any alleged flaw.
The second arm of this point of appeal was that the tribunal failed to resolve the matter quickly. (See appellant’s submissions in reply filed 19 February 2013, paragraph 19.) Having reviewed the file I can make no criticism of the way in which staff and members of the tribunal have dealt with the matter. Further, the criticism of the appellant is based on the misunderstanding that damages would cease at the date of hearing, rather than being based on the unexpired portion of the lease. Even if there had been unreasonable delay in the tribunal's processes (which I do not accept occurred) it would not have had any effect on the damages to which the appellant was liable. This claim has no merit and is rejected.
Fourth ground of appeal
The fourth ground of appeal is that the tribunal failed to consider evidence concerning the storage cage. It was agreed that the lease of the property was intended at the start to include access to a storage cage in the building. The appellant alleges that she was told by an employee or other person on behalf of the respondent that there was no storage cage, and therefore that there had been a breach of an important, if not fundamental, term of the lease. The agent had told the appellant in an e-mail when the question was raised about access to the storage cage, that there was such a facility and how it could be accessed. The agent’s e-mail directed the appellant to a named person (René) who could assist the appellant in providing access to the storage cage through the use of the keys for her unit. There was a storage cage in the basement of the building, with the appellant’s unit number on it.
It is clear from the e-mails produced at the original hearing and available in this appeal that the agent was telling the appellant in writing quite clearly that there was a storage cage and the name of the person who could help her get access. The appellant says that she spoke to René who told her that the granting of the storage cage was a mistake and the appellant was not entitled to access to it. The appellant says that she was told the same thing by a member of the staff of the agent.
It seems most unlikely that a manager would tell the appellant that there was no such storage unit and that the appellant would just accept this when her evidence was that it was important to her, and where the agent had repeatedly e-mailed acknowledging that there was a right to the storage unit and giving assistance in accessing it. I am satisfied that when the appellant queried what she has allegedly been told by René, the agent again sent an e-mail confirming the availability of the storage unit after having spoken to René to overcome any misunderstanding. While the appellant maintains that she did not get this e-mail, it is clear that the disputed e-mail was in evidence at the hearing below, and from the evidence of the agent’s representatives there is little if any likelihood that it was not sent. Whether the appellant read it or recalled it is a separate matter.
The only evidence which would support the appellant's contention is that given by her. She did not call René to give evidence of any discussion with her. That failure to call him raises questions about the credibility of the appellant, when compared with the e-mail material available at the hearing. How the evidence on this point was construed, and the weight to be given to it including the email chain, was a matter for the member hearing the case but I can find no fault in it.
Had the issue of the availability of the storage cage been as important as the appellant maintains one must question why she did not pursue it with the agent when receiving the (presumably) totally unexpected verbal advice from René that there was no storage cage for her. The storage cage had her unit’s number on it. Her failure to do so was explained by her representative as a result of her being "busy and having other things on her mind." This is hardly credible. A fair view of the evidence is that the appellant lost interest in the storage cage until it became convenient to raise it as a matter that might assist her to defend the damages claim. I am not satisfied that the appellant has made out this ground for appeal.
Fifth ground of appeal
The final ground of appeal was that the director of the respondent who had given evidence had perjured himself and that the matter had been reported to the police with a view to investigation and prosecution. The appellant’s argument was that the decision of the tribunal should be delayed until the final resolution of this matter by the Australian Federal Police and the Director of Public Prosecutions. The allegation arose because the appellant claimed that the tap water in the property was or may be tainted, but that after she had left the property and in the time period between the hearing of the case and the delivery of the decision of the tribunal, Mr Zivko had refused access to ACTEW personnel to check the water quality.
The allegation of perjury depends upon the construction of some answers that Mr Zivko gave in cross-examination by the appellant's representative, as compared with an e-mail sent to the appellant's representative by an ACTEW inspector on the 25 September 2012 – some days after the date of the original hearing of the matter.
In his affidavit of 16 October 2012 filed in this matter, Mr Guy Forsyth, the appellant’s representative, who appeared for her in the proceedings sets out a passage of transcript from the earlier proceedings. It reads as follows:
"Mr Forsyth – do you recall during June 2012, being contacted by the ACT Planning and Land Authority to conduct an inspection?
Mr Zivko- – yes
Mr Forsyth – and what did you do?
Mr Zivko -they laughed when they realised Ms Hilyard had left the premises and they realised that the reason for the inspection was for her to try and reduce her liability under the lease. (continues with irrelevant testimony.)
Mr Forsyth – so I put it to you that they were not permitted on to the property.
Mr Zivko-they didn't want to come on to the property once they realised what the reason was. And that was after Ms Hillyard had left."Mr Forsyth also annexed to his affidavit an e-mail from an ACTEW inspector, Mr Brian Connors, dated 25 September 2012. This had apparently been sent in response to an earlier e-mail from Mr Forsyth asking ACTEW to investigate a complaint of noxious odours and possible unsafe drinking water in the apartment complex in which the property is located. A follow-up e-mail was sent on 21st September from Mr Forsyth to ACTEW. It appears that the e-mail of Mr Brian Connors of the 25th September was a response to this. In his e-mail Mr Connors said as follows:
"The complaint that Mrs Hilyard submitted on 5 June regarding the alleged noxious odours and possible unsafe drinking water was followed up with the owner of the unit. However, the owner would not grant consent for ESDD inspectors to access the property for the purpose of an inspection. The owner of the unit advised me that there was currently a contractual dispute with Mrs Hilyard that was being dealt with in court."
(balance of e-mail not relevant).The inspector was not called by the appellant to give evidence.
Two statements are not necessarily inconsistent, much less wilfully so. There would presumably have been a general discussion between Mr Zivko and the inspectors that may have lasted some moments, and the details of that are not disclosed. Mr Zivko may have explained the situation and said that there was no need for an inspection. He was within his rights in doing so. He may have joked with inspectors about the reason for the appellant’s request and about her reasons for raising the issue of water quality, particularly coming so long after her departure and in the midst of legal proceedings to recover damages for lost rent. He may have given his own views on the water quality and discussed with the inspectors whether any other complaints about water quality had been made. The last exchange set out in paragraph 45 is quite consistent with (a) Mr Zivko initially refusing access and explaining the situation, and (b) the inspectors appreciating what had been said and departing on the basis that access had been refused for understandable reasons.
The definition of perjury is an offence at common law of making a false statement on oath in a judicial proceeding concerning a matter material to the proceeding, while knowing that the statement is false, or not believing it to be true: R v Traino (1987) 45 SASR 473 at 475. It is a very serious offence because it strikes at the heart of the integrity of judicial or tribunal proceedings. It should be noted that for a legal practitioner to make such an allegation of perjury requires that the practitioner personally satisfy him or herself that all of the elements of the offence have been made out and that there is credible evidence to support each element. The making of an allegation of perjury in the absence of this judgement can amount to a professional conduct offence, which will bring the practitioner under the view of the discipline authorities.
The most charitable thing that can be said about this point of appeal is that Mr Forsyth in making the claims in his statutory declaration neither understands the elements necessary to establish such a serious charge, nor has shown the ability to analyse the evidence to establish to the requisite degree that the charge could possibly be made out.
Whether the Australian Federal Police, much less the Director of Public Prosecutions, take any action on the allegation is a matter for them. There is nothing in this point that would support a successful appeal or lead me to consider that the decision handed down and the subject of this appeal should have been delayed. This ground of appeal is dismissed.
Claim by the respondent for additional damages
The respondent in its submissions of the 12 February 2013 and in argument at the hearing sought that the decision below be set aside to the extent of the damages ordered, and that the figure of $25,000 be substituted. This is the maximum amount that could be awarded in accordance with the RT Act. The respondent in the hearing referred to authorities to indicate that it was open to an appeal court, where the issue had been raised in submissions, to review that component of the order and to increase it where it saw fit.
As noted previously, the respondent did not cross appeal against this aspect of the decision under review. While the matter was raised in submissions, there was no detailed written submission to support the proposition that damages be increased, leaving it to the oral arguments at the hearing of the appeal.
In my opinion, the respondent’s submissions on this aspect should be rejected. Had the matter been raised by cross-appeal, it would have been squarely before the appellant and her representative in the preparation for the appeal. Detailed written arguments could have been set out, as they were in the rest of the respondent’s submissions. It would now be unfair to allow the matter to be the subject of substantive oral argument on appeal and decision, where it has not been raised in detail in the written submissions and the appellant put on notice of the authorities referred to. What may be judged by a court to be appropriate in the context of experienced counsel being involved in a case and in an appeal, does not necessarily apply where the tribunal is dealing with lay litigants.
It should also be noted that in paragraph 139 of her decision, Presidential Member Symons noted that the solicitor for the respondent acknowledged that the tribunal could discount what might happen in the remaining four weeks between the date of hearing and the date of termination of the lease. She exercised her discretion to discount the damages, on the basis of the evidence before her. I see no reason to interfere with that exercise of discretion. In all the circumstances, this application by the respondent fails.
The respondent filed submissions in reply to the appellant’s submissions filed on 8 March 2013. The opportunity to file submissions in reply was part of the orders made by me following the hearing of the appeal. The respondent’s submissions in reply were filed on 15 March 2012. In those submissions, the respondent sought an order for costs for the preparation of the submissions in reply. The reason given for the application was that “the vast bulk of the grounds advanced in the appellant’s submissions of 8 March 2013 were not raised in the appeal hearing, nor in the proceedings below.”
In hearing the appeal I restricted it to the grounds set out in the notice of appeal. To the extent that the appellant’s submissions canvassed other grounds, they are not relevant and have not been given any weight in deciding the matter.
The tribunal’s power to order costs is set out in section 48 of the ACAT Act Section 48(1) provides that:
“(1) The parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders”
The provisions of subsection (2) are not relevant to this case.
The respondent handed up submissions at the hearing of the appeal, being the submissions filed on 13 February 2013. It was appropriate that the appellant be given the opportunity to respond to these, which she took by the submissions filed on 18 March 2013. As both parties were given and took the opportunity to make submissions after the hearing, it is not appropriate that either be penalised by a costs order on that account. The request by the respondent for a further costs order is refused.
The appellant's appeal against the tribunal’s order of 8 November 2012 is unsuccessful. The order is confirmed.
………………………………..
Mr C.G Chenoweth
Acting Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER: | AA 12/57 |
PARTIES, APPLICANT: | Katherine Hilyard |
PARTIES, RESPONDENT: | Mainore Pty Ltd |
COUNSEL APPEARING, APPLICANT | |
COUNSEL APPEARING, RESPONDENT | |
SOLICITORS FOR APPLICANT | |
SOLICITORS FOR RESPONDENT | |
TRIBUNAL MEMBERS: | C.G Chenoweth – Acting Presidential Member |
DATES OF HEARING: | 22 February 2013. |
PLACE OF HEARING: | ACAT, Canberra |
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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