Neilan Stramandinoli Family Law Pty Ltd ACN 616 840 914 v Sergi
[2019] ACAT 91
•9 October 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
NEILAN STRAMANDINOLI FAMILY LAW PTY LTD ACN 616 840 914 v SERGI (Civil Dispute) [2019] ACAT 91
XD 503/2019
Catchwords: CIVIL DISPUTE – removal of a representative – application for the removal of Mr Polleycutt as a representative – obligations of representatives – acting contrary to ACAT Act objectives
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 30
Legal Profession ACT 2006
Legislation Act 2001 ss 247, 250, 251
Service and Execution of Process Act 1992
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedural Directions 2010 s 7.1.3
ACT Civil and Administrative Tribunal Procedure Rules 2009 r 8
Court Procedures Rules 2006 r 425
Cases cited:Chessell & Anor v Reynolds [2018] ACAT 107
Caboolture Park Shopping Centre Pty Ltd (in liq) and White Industries (Qld) Pty Ltdv Flower and Hart (1993) 117 ALR 253
Francis Pires v Dibbs Barker Canberra Pty Ltd [2014] ACTSC 283
Verma & Anor v Reynolds [2019] ACAT 4
Williams Love & Nicol Lawyers Pty Ltd v Wearne [2016] ACAT 18
Tribunal: Senior Member H Robinson
Date of Orders: 11 September 2019
Date of Reasons for Decision: 9 October 2019AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 503/2019
BETWEEN:
NEILAN STRAMANDINOLI FAMILY LAW PTY LTD ACN 616 840 914
Applicant
AND:
ANTHONY SERGI
Respondent
TRIBUNAL:Senior Member H. Robinson
DATE:11 September 2019
ORDER
The Tribunal orders that:
Mr Eric Polleycutt is removed as the representative of the respondent and must take no further part in the proceedings.
The Tribunal's Orders of 25 July 2019 are amended as follows:
Order 4(a): “22 August 2019” is replaced with “11 October 2019”.
This matter is listed for hearing on Wednesday 23 October 2019 at 2:00pm.
The respondent is directed to provide to the Tribunal a working email address or phone number.
……signed………..
Senior Member H Robinson
REASONS FOR DECISION
1. By way of this interim application the applicant sought an order removing Mr Eric Polleycutt as the respondent’s representative and an order that Mr Polleycutt play no further part in these proceedings.
The interim hearing
2. At the interim hearing on 11 September 2019 the applicant was represented by Ms Davis of Counsel and the respondent by Mr Polleycutt.
3. The respondent was not in attendance at the interim hearing and indeed has not appeared at the Tribunal during the course of these proceedings.
Background
4. This substantive matter first came before the tribunal for a conference on 25 July 2019. Mr Polleycutt represented the respondent at that conference. Following that conference, Member Morris made directions to prepare the matter for hearing. The directions were emailed to the parties on 8 August 2019. The email address used for the respondent was the email address cited in the application and included on documentation attached to that application.
5. The directions provided for the applicant to file an amended application and material to be relied upon at hearing by 8 August 2019. The applicant complied with these directions.
6. The respondent was required to file a response to the amended application and material to be relied upon at hearing by 22 August 2019. On 16 August 2019, Mr Polleycutt, on behalf of the respondent, sent an email to the tribunal that appeared to question the correctness of the directions, and also question whether the relevant order containing the directions had been properly served. It is difficult to understand the full ambit of this email, but the tenor appears to be that the respondent did not authorise communication by email, and hence should not have received the directions by email, and that the respondent in any case received the directions too late to properly prepare a response in the time allowed. Having regard to the bench sheet it does appear that the respondent requested service by way of ordinary mail, but as Mr Polleycutt attended the conference he should have been aware of the directions made there.
7. The tribunal registry responded by providing Mr Polleycutt with information on how to make an interim application seeking new directions. On 19 August 2019 Mr Polleycutt replied to the tribunal by suggesting that an “appeal as to the orders is more relevant.” No interim application or appeal was lodged.
8. In subsequent correspondence, however, Mr Polleycutt took a more conciliatory approach and sought the other party’s agreement to an address for service other than an email address. His preferred means of service is discussed further below.
9. On 26 August 2019 Mr Polleycutt filed a document under cover of an email that described it as “…the interim response and details of administrative affecting the carriage of the matter” (the interim response). At the time, this Tribunal assumed that this document was the response setting out the orders sought as required by direction 4(a) of the directions of 25 July 2019. However, no evidence or other material to be relied upon at hearing was filed by the respondent at this time.
10. Subsequently, the applicant filed the subject interim application seeking Mr Polleycutt’s removal as the respondent’s representative.
The law
11. Section 30 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that a party may appear in person or be represented by a lawyer or someone else. Where a non-lawyer represents a party who is an individual, section 7.1.3 of the ACT Civil and Administrative Tribunal Procedural Directions 2010 (Procedural Directions) requires that the representative be authorised by a power of attorney. The respondent has filed with the tribunal a general power of attorney, in broad terms and with no limitations, dated 7 June 2019 which authorises Mr Polleycutt to represent him generally.
12. Rule 8 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (the Rules) provides that the Tribunal may, by order, stop a representative of a party taking part in the proceeding in certain circumstances. Rule 8 provides in full that:
8 Removing representatives
(1) This rule applies if a party to a proceeding in the tribunal is being represented by someone else (the representative).
(2) The tribunal may, by order, stop the representative from taking any further part in the proceeding.
(3) However, the tribunal may only make an order under subrule (2) if satisfied that—
(a)the representative does not have sufficient knowledge of the issues in dispute in the proceeding to allow the representative to effectively represent the party at the hearing of the proceeding; or
(b)the representative does not have sufficient authority to bind the party; or
(c)the representative’s representation is inconsistent with the objects of the Act.
Note 1 The tribunal must observe natural justice and procedural fairness (see the Act, s 7).
Note 2 The objects of the Act are in the Act, s 6.
13. Litigants should, generally, be entitled to appoint who they please as their representative, and therefore the Tribunal exercises the right to remove a representative only sparingly.
Issue one: Does Mr Polleycutt have sufficient understanding of the issues in dispute
14. As set out in paragraph 12, above, under Rule 8(3)(a) of the Rules, the tribunal may remove a representative who does not have sufficient knowledge of the issues in dispute to effectively represent a party at the hearing.
15. The Tribunal raised this issue with Mr Polleycutt during the hearing. Mr Polleycutt maintained the position that although he is not legally trained, he had sufficient knowledge of the law and the issues to represent Mr Sergi at the hearing, and that he could obtain advice from a solicitor where necessary.
16. The substantive issue in this dispute is whether the applicant can recover unpaid legal fees allegedly owed pursuant to a costs agreement entered into between the parties. The Tribunal’s role in legal costs matters of this kind is limited to consideration of contractual issues arising under the costs agreement. The Tribunal can determine whether there is a valid cost agreement, whether the fees were incurred pursuant to that agreement, and whether the respondent had made out any of the usual contractual defences. Assessments as to the reasonableness of the costs fall within the exclusive jurisdiction of the ACT Supreme Court under the Legal Profession ACT 2006 (LP Act).
17. I have attempted to discern Mr Polleycutt’s understanding of the matters in dispute by reference to three sources:
a.(a) the respondent’s response filed 31 May 2019 (the response);
b.(b) the interim response; and
c.(c) Mr Polleycutt’s oral submissions to the Tribunal at the interim hearing.
a.18. The response is a bare response. It appears to have been prepared before Mr Polleycutt was appointed as the respondent’s attorney, but Mr Polleycutt’s submission at the interim hearing was to the effect that it clearly sets out the respondent’s defence to the claim. The response states only that the respondent does not have an obligation to pay and that the application is “false and misleading”. In the response, the respondent also appears to dispute that the application was properly served. He requests that the Tribunal dismiss the application and “set aside the appearance of the respondent.” I do not quite understand the argument about the application not being properly served, but it is evident that the respondent received a copy of the application and responded to it.
b.19. The interim response is a more substantive document. It consists of two parts. The first part commences with the words “Dear ACAT”, and there follows six pages of allegations of inappropriate conduct by the tribunal, tribunal staff members and the applicant. Following this, at the base of the sixth page of the interim response, are the words “Response to Amended Application by Lucy Stramandinoli…”, followed by the matter number of this proceeding, and what appears to be a response to many of the contentions in the amended application. Having had regard to these words, I had assumed that the document (or at least the second part of it) constituted the respondent’s amended response to the amended application filed 8 August 2019, or alternatively his submissions in relation to the proceeding. However, Mr Polleycutt clarified at the hearing on 11 September 2019 that this document is “not a response”, and that its purpose was “…to raise a few procedural issues and some other things” and, seemingly, to give an outline of the respondent’s position.
c.20. If the interim response is not a response to the applicant’s amended application, then the respondent is non-compliant with the tribunal’s directions of 25 July 2019 and has filed no material in response to the applicant’s case, save the bare response, and no evidence either. This would raise in my mind concerns about Mr Polleycutt’s understanding of and capacity to comply with the directions of the tribunal, as considered further below. Additionally, the only issue that would have been raised by the respondent is the question as to service by email, which is not a material issue in dispute given the respondent’s attendance at the tribunal.
d.21. However, I am satisfied that, whatever Mr Polleycutt’s express intention, the interim response is in effect the respondent’s response, and it provides the only written clarification of the respondent’s position. The confusion and uncertainty over the status of this document is reflective of the difficulties that arise from Mr Polleycutt’s representation of the respondent and his apparent reluctance to cooperate with the tribunal.
e.22. The first six pages of complaints about ‘administrative issues’ in the interim response are for the most part not relevant to the substantive proceedings, the possible exception being those allegations that relate to the issue of email service considered below. The allegations are unhelpful and made using intemperate language and include alleged motivations about which he offers no evidence. This is not the first time Mr Polleycutt has made scandalous allegations of this nature in a document filed with the tribunal. If these claims were made as claims in pleadings filed in a court they would likely be struck out as scandalous and vexatious.
f.23. Had claims of this nature been made by an admitted legal practitioner, that practitioner may well be subject to disciplinary action if they could not establish that they had specific instructions and an appropriate evidentiary foundation for making such claims. While lay representatives do not have the same ethical obligations as admitted solicitors, they do have a responsibility to present the party’s case in a proper, constructive manner that furthers the objects of the ACAT Act. This includes an obligation to ensure that matters before the tribunal are resolved as quickly as is consistent with achieving justice.
g.24. In considering Mr Polleycutt’s knowledge of the issues in dispute, I consider I am entitled to have regard to whether his written submissions properly identify and raise relevant legal or factual disputes, whether he has submitted evidence in support of the factual disputes, and whether he has a sufficient knowledge and acceptance of the tribunal’s (simple) procedures. The first six pages of Mr Polleycutt’s interim response do not do this. Mr Polleycutt’s focus on procedural issues within the registry leaves me with some doubt about whether he can properly identify and consider the real issues in dispute before the Tribunal.
h.25. In relation to the substantive issues, the respondent’s position, as best as the Tribunal can discern from the interim response, is that he does not owe the money because:
a.(a) the debt has not ‘crystallised’ and is not payable until an interim distribution of proceeds from the sale property is made; and/or
b.(b) possibly, the costs agreement is invalid or applies only for some of the period claimed;
c.(c) possibly, there was some form of negligence on the applicant’s part, perhaps occasioned by a conflict of interest; or
d.(d) possibly, the invoices are incorrect by reason of being “misleading; incorrect, careless and possibly wilfully non-compliant”;
e.(e) the respondent may have a counterclaim or set-off for nervous shock – or “anxious shock caused by the Applicants advice”.
a.26. I have used the word ‘possibly’ because the written documentation is very difficult to read and understand. The language used is dense, and there are many grammatical errors, typographical errors and apparently incomplete sentences. Propositions of law are made without reference to authority. Some of the language is emotive. Parts of the interim response, in particular, are nonsensical. Some assistance was provided by Mr Polleycutt at the hearing, but even so, many of the submissions in the interim response and the arguments in support of them, remain incomprehensible to this Tribunal.
b.27. Additionally, Mr Polleycutt has, in his submissions, used legal terminology incorrectly or out of context. This has caused delay as the Tribunal has struggled to understand the ostensibly legal argument made. I am satisfied that while Mr Polleycutt has a basic understanding of some legal concepts, he does not have sufficient understanding of the issues in dispute to apply that reasoning in an appropriate way.
c.28. The interim response, and Mr Polleycutt’s oral submissions to the Tribunal, lead me to doubt that he had sufficient knowledge of the issues to effectively represent the respondent.
The representative’s representation is inconsistent with the objects of the Act
a.29. Section 6 of the ACAT Act sets out the objects of the Tribunal. These include:
(b) to ensure that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal; and
(c) to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice; and
…….
a.30. Ms Davis submitted that the conduct of this matter by Mr Polleycutt to date is contrary to these objectives. In particular, Ms Davis submitted that Mr Polleycutt’s submissions were unclear and that his prescriptive requirements for the exchange of correspondence communication were contrary to the objects of the ACAT Act. Mr Polleycutt submitted that his requirements were simply to ensure a reliable means of communication.
b.31. As set out above, at paragraphs 26 to 27 in relation to the interim response, the language used by Mr Polleycutt in the interim response is extraordinarily dense and unhelpful and uses unnecessary legalisms. This unnecessarily increases the time and expense needed to resolve the matter.
c.32. The Tribunal is intended to be an accessible forum. Reduced or compromised literacy should not be a barrier to appearing in the Tribunal. Members of this Tribunal, particularly those who sit in the civil jurisdiction, are used to dealing with submissions that are written in a basic manner or simplistic manner, by parties who have little or no facility with legal discourse, and for whom English may well be a second language. Had the interim response been prepared by the respondent himself, allowances could be made. However, the document was not written or prepared by the respondent, but by a person who is purporting to be his representative. Such a person is liable to be removed under Rule 8 of the directions.
d.33. To his credit, Mr Polleycutt recognised at the hearing that his written English skills were not the best, conceding that:
I know I don't have the best of English written skills, but it definitely has not been any reason for anyone to have any issue of a major concern before. But if there is any question with my discourse or the language used, or highlighting or anything else, at any time, I'm more than happy to clarify it, in goodwill. It's not an issue of causing any grief for anyone.
a.34. While the Tribunal appreciates that Mr Polleycutt is willing to discuss his submissions orally, this will not always be possible. The Tribunal is intended to be a simple, quick and efficient forum that is open to self-representation, or representation by lay people, including for example friends or relatives. However, those representatives should be capable of assisting the represented person to put their case forward in a manner that meets these objectives. The manner in which Mr Polleycutt has presented this case does not achieve these outcomes.
b.35. In addition, Mr Polleycutt has put forward five potential defences to the claim, unsupported by evidence of any kind, notwithstanding the clear directions that he file evidence by 28 August 2019. No explanation for the lack of evidence in support of the respondent’s case has been forthcoming. The conduct of Mr Polleycutt has, in this matter, been inconsistent with the hearing proceeding in a quick, simple and fair manner.
c.36. Furthermore, the process of communication requested by the respondent was contrary to the ACAT Act. Mr Polleycutt required that the applicant send correspondence to the respondent’s home address by regular mail, notwithstanding that Mr Polleycutt would communicate with the Tribunal or the other party by email. In other words, Mr Polleycutt’s position was that the applicant should not be permitted to respond to emails by email. This is simply impracticable.
d.37. In response to this application, Mr Polleycutt advised orally at the interim hearing that the applicant and the tribunal could email him. However, he submitted that:
..the only problem is, is when you email someone it’s – requirement is if they’re not 24/7, like, it’s not a business operation, that formally identifies email address for service, if you are going to email someone, you need to let them know that there’s an email that they can pull down off of wherever, to get service. Under the Service and Executions Act, if you email somebody something and you wish to rely on that, they would need to inform me, or inform Mr Sergi that there is some correspondence needing attention to.
a.38. To the extent that this submission suggests that the tribunal may not use email to communicate with a party, without also advising the party that it has sent an email, it is not correct. Once a party nominates an email address for communication, there is no need to separately advise a party that correspondence has been sent to that email address. There is no requirement that the email address be monitored at all times. No such obligation exists under the Service and Execution of Process Act 1992 (which, applies only to interstate proceedings, in any case). In any case, Mr Polleycutt’s submissions are simply incorrect. Service of tribunal documents, other than for an application, is dealt with under part 19.5 of the Legislation Act 2001. For service of applications see Procedural Direction 10.3. Section 247(d) of the Legislation Act specifically provides that a document may be served on a person by emailing it to an email address of the individual, and sections 250 and 251(4)(c) of the Legislation Act effectively provide that the email will be taken to be served when sent unless the sender has reason to believe that the address to which the email was sent was not an email address of the recipient.
b.39. The applicant suggests that the insistence on postal service and communication is a deliberate attempt to delay proceedings. While I do not accept this submission, I do agree that the nominated means of communication by the respondent is unmanageable and will have the consequence of delaying the resolution of these proceedings to an unacceptable degree. Insistence upon this means of communication is not consistent with the objects of the Tribunal.
c.40. There is no suggestion that the respondent lacks the capacity to represent himself, either alone or with the assistance of an advocate, or that he could not have another person to represent him. Were an argument of ‘necessity’ raised, I may have been inclined to engage in a weighing of the various objectives of the Tribunal, including considering whether the delays caused by Mr Polleycutt’s approach to these proceedings are outweighed by the respondent’s requirement to be represented by someone. However, given no explanation has been offered as to why the respondent has appointed Mr Polleycutt as his representative I cannot consider this any further.
Conclusion
a.41. Overall, the nature and content of the material filed on behalf of the respondent by Mr Polleycutt, the lack of preparedness of the respondent’s case by Mr Polleycutt, and the insistence on differential modes of communication satisfy me that Mr Polleycutt does not have sufficient knowledge of the issues to effectively represent the respondent, and indeed that his representation of the respondent to date has been inconsistent with the objects of the ACAT Act.
b.42. The Tribunal is satisfied that Mr Eric Polleycutt should be removed as the representative of the respondent and must take no further part in the proceedings.
………………………………..
Senior Member H Robinson
HEARING DETAILS
FILE NUMBER: | XD 503/2019 |
PARTIES, APPLICANT: | Neilan Stramandinoli Family Law Pty Ltd ACN 616 840 914 |
PARTIES, RESPONDENT: | Anthony Sergi |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | Senior Member H Robinson |
DATES OF HEARING: | 11September 2019 |
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