Powley & Anor v Reynolds - [2018] ACAT 103

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 60
Group 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…

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 103
Decision Date: 23 October 2018

CaseChat Overview and Summary

Powley & Anor v Reynolds is a case before the Australian Administrative Appeals Tribunal. The applicants sought an order for the removal of Mr Eric Polleycutt as the representative for the respondent. The respondents, in turn, sought an order that certain orders made by a Senior Member be set aside. The applicants and respondents are in dispute over the appropriateness of Mr Polleycutt's representation of the respondent in proceedings before the Tribunal.

The central issue before the Tribunal was whether Mr Polleycutt should be removed as the respondent's representative and if the orders made by the Senior Member on 10 September 2018 should be set aside. The applicants argued that Mr Polleycutt had a conflict of interest, and his continued representation of the respondent was inappropriate. The respondents maintained that there was no conflict of interest and that the orders made by the Senior Member should remain in place. The Tribunal was required to determine whether the applicants' concerns about Mr Polleycutt's representation were justified and if the Senior Member's orders should be set aside.

The Tribunal considered the evidence and submissions presented by both parties. The Tribunal found that there was no conflict of interest in Mr Polleycutt's representation of the respondent. The applicants had not provided sufficient evidence to support their claim of a conflict of interest, and the Tribunal was not satisfied that the orders made by the Senior Member should be set aside. As a result, the Tribunal dismissed both the applicants' and respondents' applications. The Tribunal found that Mr Polleycutt's representation of the respondent was appropriate, and the Senior Member's orders would remain in place.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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