Icon Water Limited v Preston - [2018] ACAT 133

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ICON WATER LIMITED v PRESTON (Civil Dispute) [2018] ACAT 133
XD 1155/2018
Catchwords: CIVIL DISPUTE — application for default judgment to be set aside — civil jurisdiction and energy and water jurisdiction of tribunal — relevant test to set aside default judgment — reasonable excuse for not responding to substantive proceedings — reasonable prospect of successfully defending substantive proceedings

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 56
Utilities Act 2000 s 179

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedural Directions 2010 (No 1)

Cases cited:Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503
Allesch v Maunz [2000] HCA 40
Commissioner for Social Housing v Hutchings & Gottschalk‑Krutsky [2016] ACAT 88
Day and Munday Trading As Gone Postal & Proactive Airconditioning Pty Ltd [2013] ACAT 40
Gordon Lando v Krown Living Pty Ltd & Ors [2016] ACAT 60
Hardship Applicant 13312 v Icon Water Limited [2018] ACAT 83
Kang v R&D Regional Constructions Pty Ltd [2013] ACAT 24
Powley & Anor v Reynolds [2018] ACAT 103

Tribunal:Senior Member H Robinson

Date of Orders:  14 December 2018
Date of Reasons for Decision:         21 December 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 1155/2018

BETWEEN:
ICON WATER LIMITED
Applicant

AND:
NORA KLARA PRESTON
Respondent

TRIBUNAL:Senior Member H Robinson
DATE:14 December 2018
ORDER

The Tribunal orders that:

The interim application is dismissed.

……………Signed…………..
Senior Member H Robinson

REASONS FOR DECISION

This is an interim application seeking orders to stay the enforcement of and/or set aside a default judgment entered against the respondent pursuant to direction 43.2.1 of the ACT Civil and Administrative Tribunal Procedural Directions 2010 (No 1).
The parties consented to the matter being decided in chambers, without an oral hearing, on the documentary material submitted by the parties on tribunal file XD1588/2018 (tribunal file).

Background

On 20 August 2018 the applicant filed an application seeking to recover from the respondent an amount of $1,433.30 for allegedly unpaid water consumption and supply bills, plus the tribunal filing fee and interest (the application).
The tribunal file shows that registry mailed the application to the respondent’s home address in Kambah on 22 August 2018. It was not returned as undelivered. The application was accompanied by a covering letter which advised that (amongst other things):
(a)a response to the application must be filed by close of business, Friday 21 September 2018; and
(b)if no response is received by that date, default judgment may be entered.
The respondent failed to submit a response to the application by 21 September 2018, or at all.
On 18 October 2018 the applicant lodged an application for default judgment. Default judgment was entered on that day (default judgment).
The application for default judgment was filed with the tribunal two days after the Tribunal, sitting in its Electricity and Water Jurisdiction, dismissed a complaint by the respondent against her electricity provider[1] (EW Complaint).

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] ACAT 133
Decision Date: 14 December 2018

CaseChat Overview and Summary

Icon Water Limited filed an application for default judgment against Ms Preston, which was subsequently entered by the tribunal on 18 October 2018. Ms Preston did not respond to the application and was subsequently served with the default judgment. She then sought to have the default judgment set aside, claiming she had not received the application documents and had been unwell. Despite multiple opportunities, Ms Preston did not attend the scheduled hearings and her applications were dismissed.

The primary legal issue before the tribunal was whether the default judgment should be set aside based on Ms Preston's claims of not receiving the application documents and her period of ill health. The tribunal needed to assess whether there were grounds for setting aside the default judgment under the relevant legislation and rules.

The tribunal considered Ms Preston's submissions and the procedural history of the case. It was noted that Ms Preston had multiple opportunities to attend the hearings and provide reasons for her non-attendance and failure to respond to the initial application. The tribunal concluded that Ms Preston had not provided sufficient grounds for setting aside the default judgment, and therefore, the default judgment remained in place.

The tribunal dismissed Ms Preston's applications to set aside the default judgment, thereby confirming the default judgment entered on 18 October 2018.

Orders

Orders of the court

The Tribunal orders that:

The interim application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 18 October 2018 the applicant lodged an application for default judgment. Default judgment was entered on that day (default judgment). The application for default judgment was filed with the tribunal two days after the Tribunal, sitting in its Electricity and Water Jurisdiction, dismissed a complaint by the respondent against her electricity provider[1] (EW Complaint).[1] EW 56 of 2018 On 28 October 2018, the respondent emailed the tribunal’s general mailbox and effectively advised that she had not received any documents relating to the application prior to receiving the default judgment.[2] She asked that the judgment be ‘dismissed’, and provided a medical certificate attesting to a period of ill health. A registry officer responded to her on 29 October 2018, advising that she should make an application to have the default judgment set aside, and suggesting that she seek advice from Legal Aid.[2] Email from respondent to ACAT Registry 28 October 2018, 11.34am On 2 November 2018, the respondent sent a similar email to the tribunal’s civil registry.[3] She asked that the default judgment be set aside, and suggested that the matter belonged instead in the ACAT’s Energy and Water Complaints jurisdiction. [3] Email from respondent to ACAT Registry 2 November 2018, 3.42pm On 5 November 2018, the respondent filed an ‘application for interim and other orders’ pursuant to which she sought to have the default judgment set aside for “[f]ailing to follow process” (first interim application). The first interim application was listed for hearing on 20 November 2018. Neither party attended the hearing on that day. The presiding tribunal member noted that the respondent had advised registry that she had not had time to access legal advice, and on that basis she adjourned the proceedings to 27 November 2018. The orders of 20 November 2018 stated that “if there is no appearance by the applicant on the next occasion, orders will be made in her absence.” This order should probably have referred to the ‘respondent’ rather than the applicant, but it is clearly intended to refer to the applicant for interim orders, that is, Ms Preston. On 27 November 2018 there was, again, no appearance by either party. Accordingly, the first interim application was dismissed. The consequence of this was that the default judgment entered on 18 October 2018 continued to stand. Subsequent to the 27 November 2018 decision, there was further correspondence between the tribunal and the respondent. By way of an email dated 4 December 2018, the respondent was provided with another copy of the form for the application for interim or other orders. Registry advised the respondent that:You can use this application to ask the Tribunal to:1. to set aside the judgment of 22 October 2018, explaining why you did not respond to the original application 2. to request that the Registrar place an urgent stay on the default judgment (this is generally rare, as if enforcement proceedings are underway in the Magistrates Court, it is more likely that you would be required to apply through the Magistrates Court for a stay of the enforcement proceedings in that Court)3. to explain why you were not in attendance at the two hearing dates of your first application for interim orders. Your application for interim or other orders will be listed for hearing and you are required to attend the Tribunal to speak to your application. If you do not attend, the application may be dismissed again.

Ratio Decidendi

Legal Principle Established

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