James v Icon Retail Investments Limited & AGL Act Retail Investments Pty Limited (Appeal)

[2024] ACAT 50

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

JAMES v ICON RETAIL INVESTMENTS LIMITED & AGL ACT RETAIL INVESTMENTS PTY LIMITED (Appeal) [2024] ACAT 50

AA 28/2023 (GEN 3/2023)

Catchwords:               APPEAL – energy and water – appeal against order to dismiss appellant’s application consequent on appellant’s non-compliance with procedural orders regarding filing of documents in preparation for hearing – alleged procedural unfairness by the original tribunal not taking into account documents filed previous to the making of the procedural orders – no indication by the appellant of intention to rely on previous documents or indication of what documents would be relied on for the purpose of the orders – conduct of appellant subsequent to the orders and prior to hearing inconsistent with appellant’s intention to rely on previously filed documents – no procedural unfairness by original tribunal dismissing the application – appeal dismissed

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

Cases cited:Commissioner for Social Housing v Williams [2017] ACAT 53

Coutts v Close [2014] FCA 19

James v Icon Retail Investments Limited ACN 074371207 and AGL ACT Retail Investments Pty Limited ACN 093631586 trading as ACTewAGL Retail [2023] ACAT 41

Pye v Pye [2022] ACAT 91

Su v Kamal (No 2) [2022] ACTSC 239
Tenant RT11421 v Commissioner for Social Housing [2023] ACAT 48

Tribunal: Presidential Member G McCarthy

Date of Orders:  11 July 2024

Date of Reasons for Decision:         11 July 2024

Date of Publication:    18 July 2024

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 28/2023

BETWEEN:

ANNIE STEPHANIE BAHIYAH JAMES

Appellant

AND:

ICON RETAIL INVESTMENTS LIMITED ACN 074 371 207 AND AGL ACT RETAIL INVESTMENTS PTY LIMITED ACN 093 631 586

Respondent

TRIBUNAL:Presidential Member G McCarthy

DATE:11 July 2024

ORDER

The Tribunal orders that:

1.Appeal dismissed.

………………………………..

Presidential Member G McCarthy

REASONS FOR DECISION

1.This appeal arose from the appellant’s complaint that the respondent, she said, inappropriately disconnected the electricity to her premises.

2.The Original Tribunal dismissed the complaint because of the appellant’s non-compliance with the Tribunal’s procedural orders regarding preparation for hearing.[1]

[1] James v Icon Retail Investments Limited CAN 074371207 and AGL ACT Retail Investments Pty Limited ACN 093631586 trading as ACTewAGL Retail [2023] ACAT 41

3.The appellant appealed on the grounds that, by dismissing her application, she was denied procedural fairness. For the following reasons, I find there was no such denial and the decision to dismiss the complaint was properly made.

Background

4.I begin with an outline of the relevant facts.

5.In November 2022, the respondent was providing electricity to the appellant’s home. On or about 22 November 2022, subsequent to the respondent repeatedly sending correspondence to the appellant informing her that her electricity account was overdue and forewarning her that her electricity may be disconnected, the respondent disconnected the power consequent on the appellant’s non-payment of her electricity bill totalling $11,187.08.

6.On 28 November 2022, the appellant lodged a complaint with the Tribunal. She contended the electricity bill was excessive and the power should not have been disconnected. She wanted the Tribunal to order the respondent to reconnect the electricity to their house, waive the bill and compensate them for their claimed damages, for example alleged damage to their electric cars and the loss of food that perished in the fridge.

7.The appellant’s concerns did not resolve through the Tribunal’s mediation process and so, on 14 March 2023, the appellant lodged a ‘hearing application form’ in which she described what had happened from her viewpoint, commented on what she had previously offered by way of settlement and the need (she said) “to come to some agreement” for ongoing costs “post our application”.

8.For the purpose of preparing the matter for hearing, on 4 April 2023 at a directions hearing the Tribunal made the following orders:

1.    Applicant is to file and serve an outline of claim, setting out what they seek and why, and any evidence they rely on by 2 May 2023;

2.    Respondent is to file anything in reply by 30 May 2023;

3.    Applicant is to file anything in reply by 6 June 2023;

4.    The matter is listed for hearing at 10.00 am on Monday 19 June 2023.

9.The appellant did not comply with order 1. Instead, by email sent on 3 May 2023, after the date by which she was required to comply, the appellant’s husband (Mr James) requested an extension until 14 June 2023 to comply as they were waiting on the results of a ‘meter read’ from their new energy supplier and wished “to rely on our energy usage for one part of our application”. The respondent agreed to the extension.

10.To accommodate the appellant’s request, on 8 May 2023, the Tribunal convened a further directions hearing at which it made the following orders:

1.  The orders of 4 April 2023 are set aside;
2.  Applicant is to file and serve an outline of claim, setting out what they seek and why, and any evidence they rely on by 14 June 2023;
3.  Respondent is to file anything in reply by 12 July 2023;
4.  Applicant is to file anything in reply by 19 July 2023;

5.  The matter is listed for hearing at 10.00 am on Wednesday 2 August 2023.

11.On 19 June 2023, after the extension date she requested and by which she was ordered to comply with order 2, the appellant wrote to the Tribunal seeking another extension of time. She did not state for how long. She claimed their new energy company was “yet to produce a new bill for us”.

12.On 21 June 2023, the Tribunal sent an email to the appellant refusing the request for a further extension of time and confirming the hearing date of 2 August 2023. The email stated, “The 8 May 2023 orders will not be amended [and] the parties should endeavour to comply with the 8 May 2023 orders.” The Tribunal provided reasons for why the appellant’s request for another extension was refused.

13.On 22 June 2023, the respondent wrote to the Tribunal, the appellant and Mr James. The respondent foreshadowed an application to dismiss the appellant’s application if the appellant did not comply with order 2 of 8 May 2023 by 23 June 2023. The respondent said in its email:

·   it is unclear what relevance the [foreshadowed] bill from [the appellant’s new energy provider] has;

·   in the respondent’s view the applicant should file and serve their outline of claim in accordance with order 2 immediately;

·   the applicant has not given ACAT or the respondent any indication as to when it is likely to comply with order 2. As per the orders, the respondent had 20 business days to respond to the applicant’s claim. As a result of the applicant’s delay in outlining their claim, the respondent now only has 15 days to respond which continues to decrease the longer the applicant fails to comply with the orders.

14.Still the appellant did not provide any of the documents she had been ordered to provide, per order 2 of 8 May 2023. Nor did she or Mr James send a response of any kind to the Tribunal or, it would seem, the respondent.

15.On 12 July 2023, the respondent sent an email to the Tribunal, the appellant and Mr James stating, among other things:

As per order 3 [made on 8 May 2023], the respondent was required to file a response to the applicant’s outline of claim and evidence today.

The respondent cannot comply with order 3 as the applicant has failed to submit any outline of claim or evidence.

16.Neither the appellant nor Mr James responded to the respondent’s email or provided anything pursuant to order 2 made on 8 May 2023.

17.On 31 July 2023 at 8:29 pm, effectively one day before the hearing listed to commence on 2 August 2023 at 10:00 am, Mr James sent an email to the Tribunal and the respondent in which he apologised for “the delayed provision of information”. He attached two tax invoices from ASR Security Services for $264 and $770 both dated 7 December 2022 for callout services to assess security alarms and a tax invoice from Hydrotec Pty Ltd for $1,282.05 dated 20 January 2023 for its cost of cleaning the appellant’s swimming pool. All invoices indicated the full amount remained due and owing. There was no evidence the invoices had been paid. Why the invoices could not have been provided by 8 May 2023, per order 1 made on 4 April 2023, was not explained.

18.Mr James also attached photographs of perished food in their fridge and claimed in his email “this is thousands of dollars of frozen and other goods”. The photographs were not new. The appellant’s husband had previously provided them on 10 January 2023 in support of the appellant’s complaint.

19.The appellant did not provide anything from their new energy provider.

20.In his email sent on 31 July 2023, Mr James also stated:

In relation to our submission we have approved the ACAT to rely and use all our previous information and correspondence to the ACAT and in wasteful mediation with ACTewAGL.

21.Mr James repeated his claim that he and the appellant had asked the respondent not to disconnect their electricity, but they did so anyway and added, “We also submit that our energy consumption could not possibly have been that high – if you [the Tribunal] look at the comparative tables in their bills”.

22.Mr James concluded:

We apologies (sic) again for the delayed submission - it is a lot to get through as a Mum and Dad with children, with no staff/teams/lawyers etc.

23.As the Original Tribunal pointed out,[2] the appellant had still not stated what they were seeking and why – as required per order 2 made on 8 May 2023.

[2] [2023] ACAT 41 at [15]

24.By email to the Tribunal sent the following day, 1 August 2023, the respondent requested the hearing be vacated on the grounds it needed reasonable time to respond to the appellant’s materials filed the night before. It pointed out that under the timetable set on 8 May 2023, it was given 4 weeks to respond to the appellant’s materials. The Tribunal replied by stating the request for the adjournment would be considered at the hearing the following day.

25.At the hearing, the Original Tribunal focused on the appellant’s non-compliance with order 2 made on 8 May 2023 rather than the respondent’s application for an adjournment. It noted the appellant had not submitted anything by way of compliance with order 2 until Mr James sent his email on 31 July 2023 and had still not stated what she was seeking as required under order 2.

26.The Original Tribunal dismissed the appellant’s claim by reason of her failure to comply with directions, in particular order 2. The Original Tribunal referred to the objects of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) set out in section 6 of the ACAT Act, in particular section 6 (c):

to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice

27.The Original Tribunal found the appellant had been “offered every opportunity to articulate the claim that was being made against the respondent [and had] not done so.”[3] It referred to Mr James’ email sent on 31 July 2023 “the day before the hearing when the applicant first purported to comply with those directions”.[4] It stated the respondent was “entitled to be informed of the case to be made against it in time for it to investigate and respond to any allegations of fact or submissions of the applicant.”[5] The Original Tribunal said it was “unfair to the respondent for it to be given little or no opportunity to prepare a response and marshal evidence to answer an application.”[6]

[3] [2023] ACAT 41 at [28]

[4] [2023] ACAT 41 at [31]

[5] 2023] ACAT 41 at [35]

[6] [2023] ACAT 41 at [36]

28.The Original Tribunal concluded:

38. Multiple and persistent noncompliance with the directions of the tribunal over many months, and the failure of the applicant to articulate what orders or other relief is being sought from the tribunal, are indicative of a failure by the applicant properly prosecute the claim/s against the respondent.
39. The respondent is prejudiced by the noncompliance.

40. It is in the interests of justice that the application be dismissed.[7]

Grounds of appeal

[7] [2023] ACAT 41 at [38]-[40]

29.The appellant claimed she (and Mr James) were denied procedural fairness. Their claim was described in their documents entitled “Reasons for Appeal” dated 29 August 2023 and their written response dated 22 November 2023 in response to the respondent’s submissions. The grounds of appeal were not precisely stated but seemed to come down to three points.

30.First, the appellant contended that at the directions hearing on 4 April 2023, the member “sought our permission to provide all files and correspondence”[8] on the Tribunal’s investigation file to the file concerning her application for orders arising from the disconnection of her electricity. When the appellant agreed to what the member asked, the appellant said, the Original Tribunal erred by not considering and/or relying on what was on the investigation file for the purpose of determining the appellant’s claim.

[8] Appellant’s Reasons for Appeal dated 29 August 2023, page 4

31.Second, the appellant contended the Original Tribunal denied her (and Mr James) procedural fairness by interrupting Mr James, not permitting him to answer questions, “cutting us off” and leading us “down a pre-determined path which was formed in his mind, prior to the hearing.”[9]

[9] Appellant’s Reasons for Appeal dated 29 August 2023, page 5

32.Third, the appellant complained that the respondent did not seek dismissal of the application until the end of the hearing when the Original Tribunal’s intentions, she said, were clear.

Ground 1: the appellant’s submissions

33.In support of their claimed understanding that the Tribunal would rely on the documents in the investigation file, the appellant and Mr James referred to the following passage from a transcript of the directions hearing on 4 April 2023:

PRESIDENTIAL MEMBER: Now, I do have access to the investigation file, but the way the hearing works is once you’re here we put that to one side. We’ve just got the complaint now and some of the other documentation and we can discuss with you and work out whether you want me to transfer what was on that complaint file across to the hearing file or whether you prefer to have a fresh start with new evidence, okay. I don’t mind.

MR JAMES: I’m happy to transfer it across, yes.

PRESIDENTIAL MEMBER: You’re happy to transfer it across.

MR JAMES: It will save everyone time.

PRESIDENTIAL MEMBER: Yes. Sometimes it does, but often if you’ve had negotiations or settlement negotiations that you would prefer not to go to a hearing member, then I’m happy to put the file to one side.

MR JAMES: No, we’re fine to transfer it across.

PRESIDENTIAL MEMBER: You’re fine. Okay. All right. Well, that makes it a bit easier for me too.[10]

[10] Transcript of proceeding, 4 April 2023, page 2, line 30-page 3, line 5

34.In their “Reasons for Appeal” dated 29 August 2023, Mr James and the appellant then relied on the following exchange between Mr James and the Original Tribunal at the hearing on 2 August 2023:

MR JAMES:- the hard thing for us - and one thing the member did say in the last hearing - and again, I'm not a lawyer - is, 'Can we rely upon your previous correspondence in relation to this - to the future matter?' and we said, 'Absolutely you can.' So I guess it's from my understanding that that was already, I guess, pre-submitted, because it was very lengthy, the mediation process we had.

SENIOR MEMBER: But there is no letter on the file where you assert that in all of the occasions when you were reminded of the directions of the court.

MR JAMES: Yes.

SENIOR MEMBER: Of the tribunal.

MR JAMES: Well, that's what she did say at the time. That's what the member said.

SENIOR MEMBER:  I'm not going to go back and look at that transcript today - - - [11] [12]

[11] Transcript of proceeding, 2 August 2023, page 8, lines 22-40 

[12] The transcript of the hearing on 4 April 2023 did not exist at the time. The record shows the transcript of the directions hearing held on 4 April 2023 was provided on 17 August 2023

35.The appellant also relied on the following further exchange between Mr James and the Original Tribunal:

MR JAMES: But what we understood - and again, we're not lawyers - from the previous member is that because we’ve already made those submissions to ACAT and we’ve provided with the actual emails, the dates, the people who were in it - there was a whole ream of information that we provided and what our understanding was when we came here today that you would - you would have had access to that and that you would already have been able to read it previously. And so from our perspective - - -

SENIOR MEMBER: I'm not - - -

MR JAMES: - - - had we known that that wasn't the case, we would have re- attached all of that information and sent it to you.

SENIOR MEMBER: But you didn't.

MR JAMES: But we thought we didn’t have to because the previous member asked us if they could rely on it. So we were of the view that we would be able to - that you would have it, basically, in the files. We didn't understand that it would just be - there would be a sort of line drawn in the sand.[13]

[13] Transcript of proceeding, 2 August 2023, page 10, line 45-page 11, line 17

36.That exchange was followed by comments of the Original Tribunal, on which the appellant relied:

You made some assumptions that are in your head, they’re only in your head.[14]

How do they know without you telling them that you want to rely on that information?[15]

Are they supposed to guess?[16]

I haven't seen anything on the file that said, 'I'm going to rely on these documents’.[17]

How is the other side to know what’s in your mind unless you tell them?[18]

[14] Transcript of proceeding, 2 August 2023, page 11, lines 41-42

[15] Transcript of proceeding, 2 August 2023, page 12, lines 11-12

[16] Transcript of proceeding, 2 August 2023, page 12, line 16

[17] Transcript of proceeding, 2 August 2023, page 12, lines 43-44

[18] Transcript of proceeding, 2 August 2023, page 13, lines 1-2

37.Mr James characterised these comments as “unhelpful which entirely disregarded our agreement with the Presidential Member”.[19] [20]

[19] Reasons for Appeal, dated 29 August 2023, page 4

[20] The reference to ‘the Presidential Member’ is a reference to the member who conducted the directions hearing on 4 April 2023

38.At the appeal hearing, I said to Mr James that I had read his documents filed for the purposes of the appeal and asked if there was anything else he wished to say. This led to the following exchange:

MR JAMES: Well, I can.  I mean, I think what we wrote I think was deliberately succinct, Presidential Member, because we didn’t want to make it too lengthy.  But I guess from our perspective if, being in a court or a tribunal, says to one side of an argument or a dispute that they’ll admit, you know, a body of evidence, and in this case it was a very significant body of material, and then it doesn’t, and for whatever reason, you know – and it could say, well, the decision was made because of something completely different – but it doesn’t know because it’s operating in the abstract – whether had it had that first body of material or evidence, if it would still have made the same decision.  It just doesn’t know. No one knows.

And I guess for that reason, when we thought about it further – and this is why I guess we’re here today – we thought that was unfair and that – and we don’t think there’s any tribunal or court that would agree to admit evidence and not do it, finding against the person who that evidence benefited, and then wouldn’t given them the benefit of having that evidence put back forward again.  And that’s – I guess that’s really -   

PRESIDENTIAL MEMBER: That’s the nub of your case.

MR JAMES:  That’s it. Yes, that’s it, yes.

PRESIDENTIAL MEMBER: Yes. Yes, I follow. The tribunal essentially dismissed your claim not really on the merits of it as such, but because of the non-compliance with the orders regarding what you needed to do and the timeframes within which they needed to be done, and then the extensions of time which were granted for that purpose.

MR JAMES: Yes.

PRESIDENTIAL MEMBER: And that seemed to be the basis for the decision. Do you want to say anything about that?

MR JAMES: Yes, I do. I do, because there was one item that at the date of the hearing that we hadn’t provided, but we had provided another one, which is why the respondent had requested an extension of time, because we provided it late.  But, again, these were very small amounts of the whole, I guess, argument.  And if you were to put them, one might be one page – might be two pages, whereas the rest of the evidence which wasn’t – or, well, material that wasn’t transferred across might have been 30 pages, and that actually formed the basis of our case, and it wasn’t transferred across.

PRESIDENTIAL MEMBER: I follow that part, but there were orders requiring, you know, an outline of your argument, for example.  I don’t think that was done.

MR JAMES: That’s because the outline of the argument was in the material that Presidential Member Robinson agreed to transfer across to the next hearing.

PRESIDENTIAL MEMBER: You didn’t think it would be a good idea to write our submission is X?

MR JAMES: No, because it’s very clear, Presidential Member, that it was going to be transferred across, so we didn’t need to do it. And [the] Presidential Member. even said ‘that makes it easier for me as well’, and so, you know – it’s clear what she said and, of course, we didn’t think we had to rewrite it again because she was going to transfer it across.

PRESIDENTIAL MEMBER: But why apply for extensions of time?

MR JAMES: The extension of time was about the fact that when we moved our energy account from what’s – the retail brand is known as Actew. When we moved it across to a new provider, which is called Red Energy, they set up a smart meter for us, so it reads the meter in real time, and we had to wait for – there’s a period basically from when a new provider takes on before they can generate a bill in their system, and so we needed to wait for that bill to generate.[21]

Ground 1: the respondent’s submissions

[21] Transcript of appeal proceeding, 27 November 2023, page 3, line 37-page 5, line 10

39.For the purpose of the appeal, Ms Hagerty on behalf of the respondent relied on her written submissions dated 15 November 2023. The respondent submitted the appellant (and Mr James) were well aware of their obligation to file and serve an outline of what they were seeking and the evidence on which they would seek to rely, per the orders made on 4 April and 8 May 2023. Ms Hagerty relied on the appellant’s request for extensions to file and serve evidence, with reference to proposed evidence, which was then not provided, and their application for extensions after the date by which the appellant had been ordered to file and serve her documents.

40.The respondent submitted the appellant has misrepresented the comments of the member on 4 April 2023 by ‘cherry picking’ a statement of the member.

41.The respondent submitted the appellant was afforded procedural fairness and the appeal should be dismissed.

42.Ms Hagerty relied on recent comments of the Supreme Court, per McCallum CJ, in Su v Kamal (No 2)[22] about rule 1404 of the Court Procedures Rules 2006 (ACT) that empowers the Court to dismiss an application for failure to comply with a direction concerning the conduct of a proceeding. In Su v Kamal (No 2), her Honour said:

[22] [2022] ACTSC 239

31. The application of that rule must of course be undertaken in the context of the Court's obligations under section 5A of the Court Procedures Act 2004 (ACT) which provides:

5A Main purpose of civil procedure provisions

(1)   The main purpose of the civil procedure provisions is to facilitate the just resolution of disputes—

(a)     according to law; and

(b)     as quickly, inexpensively and efficiently as possible.

(2)   Without limiting subsection (1), the main purpose includes the following objectives:

(a)     the just resolution of the real issues in civil proceedings;

(b)     the efficient use of the judicial and administrative resources available for the purposes of the court;

(c)     the efficient disposal of a court’s overall caseload;

(d)     the timely disposal of civil proceedings;

(e)     the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

…

32.    It is now well understood that case management provisions of those kinds were intended to effect a wholesale change in the way in which litigation is to be conducted in Australia and the expectations of the court as to the cooperation of the parties in that undertaking.  As long ago as 2010, the New South Wales Court of Appeal in Bi v Mourad [2010] NSWCA 17 explained why parties should expect that if they do not prosecute their claims with due expedition, or if they permit themselves repeatedly not to comply with orders of the court, proceedings may be dismissed. The proposition is perhaps best captured in the judgment of Young JA at [31] where his Honour said:

“It must also be remembered these days that ss 56 to 60 of the Civil Procedure Act 2005 set up a regime that requires the courts to turn away reluctant gladiators and to ensure that they either prosecute their claims in due time or get sent away from the court.”[23]

[23] [2022] ACTSC 239 at [31]-[32]

43.On the question of procedural unfairness, Ms Hagerty relied on similar comments by this Tribunal in Pye v Pye[24] and Tenant RT11421 v Commissioner for Social Housing[25] about the importance of timely resolution of disputes “as quickly as is consistent with achieving justice”.[26]

[24] [2022] ACAT 91

[25] [2023] ACAT 48

[26] ACT Civil and Administrative Tribunal Act 2008, section 6(c)

44.In Pye v Pye, the Appeal Tribunal said:

21.    I accept that “achieving justice” includes giving parties a fair opportunity to prepare and present their case, but justice is not denied if a party does not take that opportunity or is underprepared for reasons that were within their control.[27]

[27] Pye v Pye [2022] ACAT 91 at [21]

45.In Tenant Rt11421 v Commissioner for Social Housing, the Appeal Tribunal said:

98.    …When considering whether a party has had a reasonable opportunity to present their case, the entirety of the circumstances [must be considered], including that party’s conduct and circumstances, and the history of the matter to date.[28]

Ground 1: Consideration

[28] Tenant RT11421 v Commissioner for Social Housing [2023] ACAT 48 at [98]

46.I begin with comment on what constitutes procedural unfairness. In Coutts v Close,[29] the Federal Court said:

120   It is also now settled that procedural fairness is not an abstract issue; rather, attention needs to be focused on the question whether conduct which is said to be procedurally unfair produced some practical injustice. As Gleeson CJ observed in Lam (2003) 214 CLR 1 at 14:

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. (Emphasis added).[30]

[29] [2014] FCA 19

[30] [2014] FCA 19 at [120]

47.In this case, the question is whether it was procedurally unfair for the Original Tribunal to dismiss the appellant’s complaint consequent on her non-compliance with the Tribunal’s orders made on 8 May 2023 in circumstances where, Mr James said, the Tribunal said it would rely on the material in the investigation file and they thought they could rely on that material for the purpose of presenting their case.

48.I begin by noting that at the hearing on 2 August 2023 before the Original Tribunal, Mr James accepted the appellant had not complied with the orders. This acceptance contradicted his later submissions. The transcript states:

SENIOR MEMBER:- - - The problem I have is that on two occasions at least directions were made that you provide evidence and statements for this tribunal.

MR JAMES: Yes.

SENIOR MEMBER: And you didn't do so until two days before this hearing which you have known about for many months, for a couple of months.

MR JAMES: Correct.[31]

[31] Transcript of proceeding, 2 August 2023, page 5, line 46-page 6, line 9

49.Later in the hearing, the Original Tribunal set out its understanding of the appellant’s non-compliance with which Mr James agreed. The transcript states:

SENIOR MEMBER: Let me go through the history that I know about in terms of what the tribunal is concerned about.

MR JAMES: Yes.

SENIOR MEMBER: On 7 March the tribunal sent you an email in relation to a hearing process should you wish to pursue your claim. That had details of the tribunal's processes.

MR JAMES: Yes.

SENIOR MEMBER: On 14 March you filed an application form. On 17 March the matter was listed for hearing on 4 April. You weren’t ready for that hearing.

MR JAMES: No, that's true. I kind of remember that.

SENIOR MEMBER: Then directions were made on 4 April in relation to the preparation of the matter for hearing. On 3 May you requested another extension and you were sent a lengthy letter saying why you couldn’t have another extension.

MR JAMES: Yes.

SENIOR MEMBER: But a new timetable was provided and there was a further set of directions made on 8 May for the preparation of this matter for hearing which provided that you were to file an outline of evidence by 14 June. You failed to do that.

MR JAMES: Yes.

SENIOR MEMBER: On 19 June you requested another extension which was again refused with detailed reasons and then you didn't file your evidence or any evidence or anything until the 31st, I think is the date.

MR JAMES: It's a couple of days ago.

SENIOR MEMBER: Sorry?

MR JAMES: Yes, a few days ago.

SENIOR MEMBER: Yes, a few days ago.

MR JAMES: Yes.

SENIOR MEMBER: So you didn't comply with any of the directions of the tribunal, did you?

MR JAMES: The last two directions[32] we didn't comply with, no.

SENIOR MEMBER: No.[33]

[32] meaning the orders made on 4 April and 8 May 2023

[33] Transcript of proceeding, 2 August 2023, page 7, line 7-page 8, line 10

50.The transcript then continues:

MR JAMES: But before that we complied.[34]

[34] Transcript of proceeding, 2 August 2023, page 8, line 12

51.By this, Mr James was referring to the documents the appellant had provided prior to 14 March 2023 when the appellant filed her ‘application for hearing form’. The transcript then continues with the exchange set out in paragraph 34 above where Mr James claimed it was his “understanding” that the appellant’s previous correspondence “was already, I guess, pre-submitted”. For many reasons, this claim was problematic.

52.First, in my view, Mr James seriously misrepresents the conversation between himself and the member at the directions hearing on 4 April 2023. True, the member agreed to “transfer across” the investigation file so he (and the appellant) could draw on documents they had previously provided for the purpose of presenting their case rather than starting afresh, but to claim the member asked Mr James if the Tribunal could “rely” on his previous correspondence or documents for the further hearing and that he agreed to the Tribunal doing so is simply untrue.

53.Likewise, Mr James’ statement to me at the appeal hearing that at the directions hearing on 4 April 2023 the member said “they’ll admit, you know, a body of evidence”[35] was untrue.

[35] See paragraph 38 above

54.On 4 April 2023, the member asked Mr James whether he wanted the complaint file to come across or would prefer to have a fresh start with new evidence. The appellant chose the former. What documents the appellant (or any party) then intended to rely on was a matter for them, not the Tribunal. For example, if the appellant wanted to rely on a tax invoice, a photograph or a printout of an email that was on the investigation file, as part of her evidence at the hearing, she needed to say so. Otherwise, how was anyone to know? In my view, the comments of the Original Tribunal at paragraph 36 above were not “unhelpful”: they were entirely appropriate.

55.Second, it is quite clear from the transcript, following the passage on which Mr James relied, that the transfer did not excuse the appellant from complying with the orders made that day and that Mr James understood what still needed to be done. As the respondent pointed out, and I agree, Mr James ‘cherry picked’ a passage from the transcript without regard to context. After the presidential member agreed to transfer across the investigation file, the exchange with Mr James continued:

PRESIDENTIAL MEMBER: But what we need you to do is set out effectively what your claim is. So it’s really an outline of [your] case where you say this is what we want and this is why we want it.

MR JAMES: Yes.

PRESIDENTIAL MEMBER: And you craft the orders you think – or you would like us to make if you are successful.

MR JAMES: Yes.[36]

[36] Transcript of proceeding, 4 April 2023, page 3, lines 23-32

56.After discussing with Mr James what his claim entailed, the following exchange occurred:

PRESIDENTIAL MEMBER: So I’m going to say the applicants are to file and serve an outline of claim setting out what they seek and why and any evidence they rely upon. How long would you need to do that?

MR JAMES: As long as we can have honestly, because we’ve got so much on.

PRESIDENTIAL MEMBER: Well, what [do] you need? Six weeks, is that going to - - -

MR JAMES: That’s plenty.

PRESIDENTIAL MEMBER: Four weeks, six weeks?

MR JAMES: Yes, four weeks is fine.[37]

[37] Transcript of proceeding, 4 April 2023, page 4, line 45-page 5, line 14

57.Third, these exchanges, particularly Mr James’ statements about how long they would need, are inconsistent with his later claimed understanding that the outline of his claim and the evidence (or at least the majority of it) on which they would seek to rely had already been provided. Had that been his understanding, he would and should have said so. As the Original Tribunal and the respondent pointed out, he never did.

58.Fourth, Mr James’ claimed understanding that the Tribunal would rely on documents on the investigation file, and/or that he could rely on those documents without telling anyone he intended to do so or what documents he would rely on, is inconsistent with order 1 made on 4 April 2023 and order 2 made on 8 May 2023, both of which are unconditional.

59.Fifth, Mr James’ claimed understanding is inconsistent with his emails sent on 3 May and 19 June 2023 requesting extensions of time to submit their evidence as they were waiting on an energy bill from their new supplier. There is no suggestion or implication of any reliance on any documents they had provided before the Tribunal’s orders were made or that the awaited energy bill would supplement such documents. In particular, there was no suggestion they had already filed “an outline of claim, setting out what they seek and why” as required under the orders.

60.Sixth, Mr James’ claimed understanding is also inconsistent with his conduct. By email sent on 22 June 2023, the respondent complained about the appellant not providing an outline of her claim and not complying with order 2. By email sent on 12 July 2023, the respondent said it could not comply with order 3 as the applicant has failed to submit “any outline of claim or evidence.” If Mr James thought any document in the investigation file was an outline of his claim or evidence on which he intended to rely, he would and should have said so. He said nothing.

61.Then there is a problem with the investigation file itself. It comprises 183 pages made up primarily of email correspondence between the parties and the Tribunal, often with attachments of different kinds, none of which could be fairly described as the appellant’s outline of their claim or what they were seeking at hearing. Nor did Mr James refer to any document on the investigation file said to be the appellant’s outline of their claim. It is simply illogical for Mr James to contend that the documents on the investigation file, filed prior to the appellant filing her hearing application form on 14 March 2023, automatically constituted the appellant’s compliance with orders made on 4 April or 8 May 2023.

62.The appellant’s inability at hearing to rely on documents held on the investigation file did not arise from any procedural unfairness by the Original Tribunal. It arose from the appellant’s non-compliance with the Tribunal’s orders made on 8 May 2023. Ground 1 fails.

Ground 2: not being allowed to answer questions/cutting us off

63.The appellant alleged there are “a multitude of examples” in the transcript where the Original Tribunal asked questions, interrupted their responses and then asked a different question. The appellant contended the Original Tribunal was not impartial and led them down “a pre-determined path which was formed in his mind, prior to the hearing.”

64.Mr James did not refer to anything in the transcript to support the appellant’s claims, and in my view the claims misrepresent what occurred. True, the Original Tribunal stated its concern about the appellant’s non-compliance with the orders made on 4 April and 8 May 2023 and asked at the beginning of the hearing “why I shouldn’t dismiss your claim”,[38] but it was not a “pre-determined path”: it was the Original Tribunal raising its concern about the appellant’s non-compliance at an early stage to give Mr James an opportunity to respond. In my view, it was an appropriate and procedurally fair way to proceed.

[38] Transcript of proceeding, 2 August 2023, page 5, line 19

65.Also, the transcript does not evidence the Original Tribunal being on a pre-determined path. Rather, it records the Original Tribunal giving Mr James every opportunity to explain why the claim should not be dismissed for non-compliance. For example, the transcript records:

SENIOR MEMBER: Why shouldn't I dismiss your claim, is the question.

MR JAMES: I'll tell you why, because - - -

SENIOR MEMBER: You want to make those submissions now or you want some time to think about it?

MR JAMES: I'm happy to make them - - -

SENIOR MEMBER: Because I'm happy to give you time to think about it.

MR JAMES: No, I'm happy to make them now. Because the whole reason that this happened was because - and whether or not we have evidence to say the bill was right or was wrong, we were in discussions with ACAT.  My wife was - sorry, Actew. We were in discussions with Actew about not disconnecting our energy from our house where our - we live with our five children and that we were going on holidays, and they agreed to that and said that was fine.

SENIOR MEMBER: This is your case. I'm asking you why, when you fail to comply with the directions of this tribunal, I shouldn't dismiss your case.[39]

[39] Transcript of proceeding, 2 August 2023, page 6, lines 11-31

66.The appellant’s claim about being interrupted is also not borne out. To the extent there was interruption, it arose because Mr James was deviating from the question concerning the Original Tribunal and was for the purpose of bringing Mr James back to the question that had been asked. I see no evidence of partiality or the Original Tribunal being unwilling to listen. Ground 2 fails.

Ground 3: dismissal not sought

67.The appellant complains that at the beginning of the hearing before the Original Tribunal the respondent was seeking an adjournment, not dismissal of the appellant’s application, and Ms Hagerty only sought dismissal when she perceived that to be the Original Tribunal’s intention.

68.In my view, for the Original Tribunal to be considering dismissal on its own initiative was not procedurally unfair. It had an overarching obligation under section 6 (c) of the ACAT Act to resolve applications “as quickly as is consistent with achieving justice”. That the respondent was seeking an adjournment, or even if the appellant had agreed to that course, was not by itself a basis to grant it. In Pye v Pye, the Appeal Tribunal said:

51.    In Aon Risk Services Australia Ltd v Australian National University, the High Court allowed an appeal against a decision to grant an adjournment of a matter that had been listed for hearing. In Aon, French CJ said:

… there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials are to be taken into account. So too is the need to maintain public confidence in the judicial system.

52.    These statements of principle have been acknowledged and followed by the ACT Supreme Court and by this Tribunal.

53.    In Group Konstruct v Pty Ltd v Arrow International Australia Ltd, the ACT Supreme Court, per Burns J, stated that the decision in Aon should not be confined to its facts and is “applicable generally to civil litigation”.  His Honour acknowledged that there needs to be a just resolution of disputes but noted that “speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings.”[40]

[40] Pye v Pye [2022] ACAT 91 at [51]-[53]

69.The importance of the Tribunal determining applications in a timely manner was also discussed in Commissioner for Social Housing v Williams.[41]

[41] [2017] ACAT 53 at [4] and [8]-[21]

70.I see no error in the Original Tribunal raising the appellant’s non-compliance with Tribunal orders on its own initiative or dismissing the application for that reason. Ground 3 fails.

Conclusion

71.For the above reasons, the appeal will be dismissed.

………………………………..

Presidential Member G McCarthy

Date of hearing:	27 November 2023
Appellant:		Mr M James
Respondent:		Ms E-L Hagerty