Powley & Anor v Reynolds
[2018] ACAT 103
•23 October 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
POWLEY & ANOR v REYNOLDS (Civil Dispute) [2018] ACAT 103
XD 334/2018
Catchwords: CIVIL DISPUTE – application for Eric Polleycutt to be removed as representative for the respondent – application dismissed – application for ex parte final orders to be set aside – relevant principles regarding timely administration of justice – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 56
Cases cited:Allesch v Maunz [2000] HCA 40
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Commissioner for Social Housing v Hutchings & Gottschalk-Krutsky [2016] ACAT 88
Gordon Lando v Krown Living Pty Ltd and Ors [2016] ACAT 60Group Konstrukt Pty Ltd v Arrow International Australia Ltd [2012] ACTSC 14
Verma and Anor v Reynolds [2018] ACAT 89
Tribunal: Presidential Member G McCarthy
Date of Orders: 23 October 2018
Date of Reasons for Decision: 25 October 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 334 /2018
BETWEEN:
DAVID POWLEY AND LOUISE POWLEY
Applicants
AND:
PATRICK REYNOLDS TRADING AS ARDGLASS WINDOWS
Respondent
TRIBUNAL: Presidential Member G McCarthy
DATE:25 October 2018
ORDER
The Tribunal orders that:
The applicants’ application dated 20 October 2018 for an order that Mr Eric Polleycutt be removed as the representative for the respondent is dismissed.
The respondent’s application dated 9 October 2018 for an order that the orders of Senior Member Ferguson made on 10 September 2018 be set aside is dismissed.
…………….. Signed………………
Presidential Member G McCarthy
REASONS FOR DECISION
By application dated 17 March 2018, the applicants brought proceedings against the respondent arising from his supply and installation of double glazed windows and doors at their home. The respondent carries on a business trading as “Ardglass Windows”.
The applicants alleged that the installation and quality of work was to a poor standard. They alleged damage to their interior walls, flooring and exterior brickwork including removal of load-bearing structures and damage to the asbestos eaves.
They also alleged that, on investigation by the Office of Fair Trading, the windows do not comply with applicable Australian Standards.
They also alleged that, after inquiry, any claim under their house insurance in relation to the supply and installation of the windows would be void and that the respondent did not hold any relevant licence or insurance to carry out the work.
The applicants sought compensation in the sum of $10,600 and payment of the filing fee of $150. The respondent filed a response dated 24 April 2018 disputing the applicants’ claim and making a counterclaim for outstanding monies owed under the contract of $10,600.
By letter dated 15 May 2018 emailed to the parties at the email addresses provided by them, the Tribunal advised the parties that the matter was listed for conference on 13 June 2018. The applicants attended, but there was no appearance by or for the respondent. The Tribunal telephoned the respondent to inquire of his whereabouts but the respondent did not answer the call. The respondent had not notified the Tribunal that he would not be able to attend. On 13 June 2018, the Tribunal ordered the respondent to pay $10,932.09 to the applicants on or before 27 June 2018 and dismissed the respondent’s counterclaim.
On 13 June 2018 the respondent applied for the Tribunal’s orders to be set aside, contending that he was unable to open the attachment containing the listing notice and that he had relied on verbal advice in his diary that the conference was to be held at 2:00pm. There was no suggestion that he contacted the Tribunal prior to 13 June 2018 to advise that he was unable to open the attachment.
On 26 June 2018, the Tribunal heard the respondent’s application. It ordered that the orders of 13 June 2018 be set aside, that the applicants file an amended application by 29 June 2018, that the respondent file a response by 13 July 2018 and that the amended application be listed for directions on 3 August 2018.
On 28 June 2018, the applicants filed their amended application repeating much of their original claim but increasing the amount claimed to $25,000 plus the Tribunal filing fee of $150 plus interest. They attached quotes totalling approximately $41,000 for the cost of the rectification work, although only claiming the jurisdictional limit of $25,000 plus the filing fee plus interest.
On 12 July 2018, the respondent sent an email to the tribunal and the applicants setting out why he disputed the amended application and stating that he was applying for orders that the amended application be struck out, costs and other orders that the Tribunal considered appropriate. The email, among many other things, stated numerous claims about deficiencies in the application, and alleged that the applicants had “undertaken actions that were malicious, vindictive and [had] entered a process to blackmail the respondent via related parties who sought reward”. The respondent contended that the Tribunal had no jurisdiction to hear the applicants’ claim.
On 3 August 2018, the Tribunal made orders that the applicants give to the Tribunal and the respondent any further evidence to be relied upon at the hearing by 17 August 2018, and that the respondent give to the Tribunal and the applicants any evidence on which he intended to rely upon at the hearing by 24 August 2018. The Tribunal listed the matter for hearing on Monday, 10 September 2018 at 1:00pm. A copy of the signed orders was sent to the respondent at his notified address.
On 17 August 2018 the respondent filed a general power of attorney for representation appointing Mr Eric Polleycutt to be his attorney.
On 20 August 2018 the respondent sent to the Tribunal by email an unsigned and undated document, which he stated to be a “jurisdictional dispute and challenge”. The respondent disputed the Tribunal’s jurisdiction to hear or make the orders sought, namely payment of compensation $25,000 together with the filing fee and sought “an appropriate setting down for the jurisdictional matter to be addressed”.
On 21 August 2018, the Tribunal advised the respondent that it could not consider his jurisdictional objection based on the submission and that he was required to file an application for interim or other orders, by way of an initiating process, to enable the Tribunal to consider the jurisdictional claim. No such application was filed.
On 21 August 2018 the respondent informed the applicants and the Tribunal that his mother “had taken a dramatic turn for the worse” and that he needed to return to Ireland. He attached flight details showing his departure on 21 August 2018 and his return on 5 September 2018. The respondent requested “the matters set out in the list in the short term to avoid any UN-necessary or avoidable disruption and expense.” There is no suggestion that the request was granted.
On 10 September 2018 at 8:34am, the Tribunal received an email from the respondent but signed by “Eric” which stated:
Dear ACAT,
The respondent has had no response from the Tribunal in relation to the jurisdictional issue. The Tribunal has not been in a position to attend the matter.
As Mr Reynolds has now returned, while his mother is a little better, I nor he have had any notice regarding the matter.
It is evident wherever this matter is and if continued. NEW evidence has arisen. AS such to provide procedural fairness to both parties the Respond (sic) requests a directions hearing in the Magistrates or suitable jurisdiction.
Sincerely
Eric
On 10 September 2018 at 9:20am, a Tribunal Registry Support Officer replied as follows:
Good morning,
Thank you for your email, it has been placed on file. Please be advised the matter is still commencing today, Monday, 10 September 2018 at 1:00pm. You may address your below email to the Member hearing the matter during the interlocutory hearing.
The respondent replied by email at 10:06am as follows
I have no correspondence regarding the listing of any interlocutory hearing. Just checked, Mr Reynolds is not aware of any notice, he and I are both unavailable
Can you please identify if when any interlocutory timing notice was served in any form?
Sincerely
Eric
The Tribunal’s Registry team leader replied at 11:05am as follows:
Dear Mr Polleycutt,
As the Tribunal Member already has the file in the hearing room, I am unable to answer your questions with reference to the complete file. However, I note that our system discloses that the hearing notice was sent out on or around 8 August 2018. It was sent with a copy of the orders made by the Tribunal on 3 August 2018, which also set out the time and date of today’s hearing. The listing notice was sent to the [respondent’s address] in compliance with the service instructions contained in the Tribunal’s order of 3 August 2018. I also note that my subsequent email to Mr Reynolds of 20 August 2018 re-states the hearing date in the context of the possibility of a further Application for Interim or Other Orders being filed.
Any request to adjourn the hearing will need to be made directly to the Tribunal Member at 1pm today. You or Mr Reynolds may attend by telephone if you are unable to attend in person: please advise the Tribunal immediately of who will be in attendance, and their preferred contact number(s) and the Tribunal Member will contact you when she is ready to commence the hearing today.
With kind regards,
The Tribunal’s file records that the applicants attended the hearing, but there was no appearance by the respondent or Mr Polleycutt. It records also that the matter was “last called” at 1:35pm. The Senior Member noted on the file that she was satisfied that the respondent had had notice of the proceedings. She also noted that the respondent had been advised earlier that day, at 9:20am, that the matter would be proceeding that day at 1pm. The respondent’s email sent at 10.06am confirms his receipt of that email.
The Tribunal proceeded to hear the applicants’ application and, after doing so, made the following orders:
1.The respondent’s request for an adjournment is refused.
2.The respondent shall pay to the applicants by 8 October 2018:
(a)$23,510 damages pursuant to section 267 (4) of the Australian Consumer Law for breaches of sections 54 and 60 of the Australian Consumer Law; and
(b)$1,055.70 interest on the sum ordered at paragraph (1)(a)(sic), in accordance with Schedule 2 of the Court Procedures Rules 2006, from 17 November 2017 to 10 September 2018.
3.The respondent’s counterclaim is dismissed.
The Tribunal notes that: at the hearing, the applicants did not pursue their claim for the Tribunal filing fee or for the ASIC search costs.
On 11 September 2018, the Tribunal sent a sealed copy of the orders to the applicants and to the respondent. The orders were sent to the respondent at his notified address, to his email address and to Mr Polleycutt at his notified address.
On 17 October 2018, nine days after the respondent had been ordered to pay the applicants the amounts stated in the orders, the respondent filed an application for interim or other orders seeking, among many other orders, an order that the orders of the Tribunal made on 10 September 2018 be “set aside/dismissed”.
On 20 October 2018, the applicants filed an application for an order that Mr Polleycutt be removed as the respondent’s representative.
I heard both applications on 23 October 2018. After doing so, I ordered that both applications be dismissed. I said that I would publish my reasons. I now do so.
Application for removal of Mr Polleycutt
Mr Polleycutt opposed the application for his removal as the respondent’s representative on the grounds that he and the respondent had received it only the day before the hearing. He submitted that it was procedurally unfair for him (or the respondent) to have to meet such an application on such short notice.
The applicants submitted that Mr Polleycutt should be removed because his conduct on behalf of the respondent amounted to no more than obfuscation, avoidance and delay. They relied on the respondent’s failure to file a response, in proper form, in response to their amended application, non-compliance with Tribunal orders regarding the respondent filing documents in preparation for hearing and email correspondence that did not address the substantive issues in the case. They contended that Mr Polleycutt’s behaviour was inconsistent with the objects in section 6 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), which include:
(c) to ensure that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal; and
(d) to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice.
After considering the submissions of both parties, I concluded that the application for removal of Mr Polleycutt should be dismissed. First, there was force in Mr Polleycutt’s submission that it would be procedurally unfair to remove him in response to an application received the day before, particularly where the question in issue was confined to whether to set aside final orders regarding the applicants’ application. Second, the interim application involved the important question of whether the final orders made on 10 September 2018 should be set aside. I concluded that the respondent, through Mr Polleycutt as the respondent wished, should have a full opportunity to address that issue.
Application to set aside the orders of 10 September 2018
The Tribunal’s power to set aside the orders made on 10 September 2018 was in section 56(c) of the ACAT Act which states:
The tribunal may, by order –
…
(c) amend or set aside a tribunal order if –
(i)the order was made after hearing an application in the absence of a party; or
(ii)the order is in error in relation to an amount or the name or address of a party, and the tribunal proposes to amend or set aside the order only to correct the error; or
(iii)extraordinary circumstances make it appropriate to amend or set aside the order
Whilst the power to set aside an order made in the absence of a party (or ex parte) is stated at large, the Tribunal exercises the power only where it is in the interests of justice to do so. It must be exercised “reasonably and rationally, having regard to the area of jurisdiction in which the tribunal is sitting.”[1] Factors such as the reason/s for why the party was absent, whether their attendance would have made any difference to the outcome and the time that has passed between when the orders were made and the filing of the application to have the orders set aside are all relevant.
[1] Commissioner for Social Housing v Hutchings & Gottschalk-Krutsky [2016] ACAT 88 at [48]
That the respondent had not been heard is not itself enough. In Commissioner For Social Housing v Hutchings & Gottschalk-Krutsky[2] the Tribunal observed:
… while natural justice requires that a person be given a right to be heard, it does not require that the person actually be heard before a decision can be made. As Kirby J went on to observe in Allesch v Maunz:[3]
... Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
[2] Commissioner for Social Housing v Hutchings & Gottschalk-Krutsky [2016] ACAT 88 at [52]
[3] Allesch v Maunz [2000] HCA 40
The respondent’s primary submission for why the orders should be set aside was that the Tribunal did not have jurisdiction to make them. Mr Polleycutt referred me to the Tribunal’s decision in Verma & Anor v Reynolds[4] in which the Tribunal dismissed another application brought by the respondent represented by Mr Polleycutt against applicants in another proceeding who have also sued the respondent for compensation arising from faulty installation of windows that did not comply with Australian Standards. Mr Polleycutt relied on the decision to contend that the Tribunal’s jurisdiction is limited to $25,000, and submitted that the orders made on 10 September 2018 were beyond jurisdiction because the applicants had claimed $25,150, comprised of their claim for compensation ($25,000) and the filing fee ($150).
[4] Verma & Anor v Reynolds [2018] ACAT 89 at [16]
The submission was misconceived.
First, the application was properly framed within the jurisdictional limit because, as the Tribunal noted in Verma & Anor v Reynolds, the filing fee and interest can be awarded in addition to the limit that can be awarded by way of compensation.[5] In other words, Verma & Anor v Reynolds is authority that directly contradicts Mr Polleycutt’s submission.
[5] Verma & Anor v Reynolds [2018] ACAT 89 at [18] and [30]
Second, in theory an applicant can claim what they wish. What matters is what the Tribunal orders and whether the orders are within power. In this case, the Senior Member ordered the respondent to pay compensation of $23,510, well below the jurisdictional limit. I also noted that the compensation ($23,510) and interest ($1,055.70) awarded are, together, still below the jurisdictional limit.
Mr Polleycutt next submitted that he had “new information” relevant to the respondent’s case and that the orders of 10 September 2018 should be set aside so that the respondent could present it. Mr Polleycutt avoided the question as to when the respondent came into possession of this “new information”, although it was some time prior to 10 September 2018 and appeared to relate to a contention that an inquiry by the Office of Fair Trading into the respondent’s conduct had been closed. I was not persuaded that the “new information”, whatever its content, was a proper basis to set aside the orders. If the respondent had “new information”, it should have been brought to the attention of the Tribunal prior to 10 September 2018 or at least at the hearing on 10 September 2018 for the purpose of determining whether the respondent should be permitted to rely upon it, despite it not been provided earlier to the applicants, or whether (for example) it was of such importance that the hearing should be adjourned. None of that occurred.
Mr Polleycutt then submitted that neither he nor the respondent was available on 10 September 2018. Mr Polleycutt said that he was in the ACT Supreme Court and that the respondent was at work. I was not persuaded that either claim, if true, was a proper basis to set aside the orders. The respondent had known about the hearing since 3 August 2018, or shortly thereafter and should have made arrangements to attend. There was no suggestion in any of Mr Polleycutt’s correspondence at the time about needing to be in the Supreme Court, and (if true) I expect Mr Polleycutt would have known about that commitment before 10 September 2018 and could have informed the Tribunal of the conflict. He never did.
The respondent and Mr Polleycutt were at all times aware of the hearing. Even on the day of the hearing were told by way of email confirmation that the hearing was proceeding, and yet elected not to attend.
In Gordon Lando v Krown Living Pty Ltd and Ors[6] the Tribunal observed:
A party sued for non-payment of a debt cannot avoid prosecution of the claim simply by stating an inability to attend the hearing. Whether a hearing will be adjourned is a matter for the Tribunal to decide, not a party to assume.
[6] Gordon Lando v Krown Living Pty Ltd and Ors [2016] ACAT 60 at [12]
Other factors caused me to conclude that I should not set aside the Tribunal’s orders.
Most importantly, the respondent had not complied with the Tribunal’s direction regarding filing and service of evidence in preparation for hearing. He had filed no evidence at all. I concluded that the respondent did not attend the hearing primarily because he realised that there was nothing he could constructively say, and had not filed any evidence upon which he could rely, in defence of the claim.
Having regard to the applicants’ case against him, I can understand why the respondent did not attend and chose the path of procrastination, avoidance and delay. The applicants’ evidence included advice from the Chief Executive Officer of the Australian Window Association that the windows that the respondent sourced from overseas and installed in the applicants’ home “were not compliant with the Australian Standard AAS 204”; an expert report from a building consultant working with Peak Consulting detailing the many defects in the respondent’s work and a conclusion that “all the windows need to be removed so the installation can be rectified”; photographs that comprehensively illustrated defects in the windows and in their installation; and quotes totalling $41,642.60 for the rectification work.
I also took into account the delay between when the respondent and Mr Polleycutt were informed of the orders (11 September 2018) and when the respondent filed his application for the orders to be set aside (17 October 2018). At the hearing on 23 October 2018, the second applicant, Ms Powley, explained that she and her husband had just commenced enforcement proceedings in the ACT Magistrates Court when they received the respondent’s application for the orders of 10 September 2018 to be set aside. The timing and events caused me to conclude that the respondent had elected to ignore the Tribunal’s orders of 10 September 2018 until faced with enforcement proceedings, at which point he ‘doubled back’ to the Tribunal in an effort to have the orders set aside and by that means defeat the enforcement proceedings.
In all, I concluded that for me to have set aside the Tribunal’s orders made on 10 September 2018 would have defeated a fundamental object of the Tribunal’s civil jurisdiction. It is a forum established and run at public cost to enable small claims to be resolved as quickly as is consistent with achieving justice. The respondent had, by his conduct, made clear that he had no intention to defend the substance of the claim brought against him and instead to avoid the claim as best he could.
In Group Konstrukt Pty Ltd v Arrow International Australia Ltd[7] the ACT Supreme Court, per Burns J, said with reference to the High Court’s decision in Aon Risk Services Australia Ltd v Australian National University:[8]
[7] Group Konstrukt Pty Ltd v Arrow International Australia Ltd [2012] ACTSC 14 at [19] – [22]
[8] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
19. Aon marked a turning point in the application of principles concerning judicial management of civil litigation in our adversary system of justice. It is not appropriate for litigants or their lawyers to attempt to confine the decision in Aon to its particular facts. Much of what fell from the members of the High Court in Aon is applicable generally to civil litigation.
20. … On appeal to the High Court, in upholding the appeal by Aon Risk Services, French CJ said at [5]:
“Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, 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.”
21. Whilst these comments are directed towards inefficiencies arising out of the adjournment of trials, they are equally apt to be applied to inefficiencies arising out of repeated failures to comply with rules of court and directions given by the court, or to properly and efficiently prepare a case for trial. The evils identified by French CJ are not only to be found in cases of adjournment in the course of a fixed trial date but also, as here, where a litigant is subjected to the forensic equivalent of the death of a thousand cuts.
22. At par [24] in Aon his Honour continues:
“The discretion [to allow amendments] is exercised in the context of the common law adversarial system as qualified by changing practice. But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interest of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates...because of noncompliance with court timetables...”
Applying these principles, I concluded that the respondent’s application for an order that the Tribunal’s final orders made on 10 September 2018 be set aside should be dismissed.
……………………………….
Presidential Member G McCarthy
HEARING DETAILS
FILE NUMBER: | XD 334/2018 |
PARTIES, APPLICANT: | David Powley and Louise Powley |
PARTIES, RESPONDENT: | Patrick Reynolds |
COUNSEL APPEARING, APPELLANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPELLANT | N/A |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | Presidential Member G McCarthy |
DATE OF HEARING: | 23 October 2018 |
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