Reynolds v Powley and Anor (Appeal)
[2020] ACAT 7
•24 January 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
REYNOLDS v POWLEY & ANOR (Appeal) [2020] ACAT 7
AA 17/2019 (XD 334/2018)
Catchwords: APPEAL – civil dispute – appeal against decision refusing leave to appeal out of time – application for leave to appeal out of time against other decisions of the tribunal – factors to be considered – prima facie time limits must be obeyed – length of delay – reasons for delay – merits of proposed appeal – prejudice to respondents – requirements of justice – whether Tribunal can hear appeals against interlocutory decisions
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 9, 17, 18, 19, 26, 48, 60, 79, 81
Powers of Attorney Act 2006 s 63
Australian Consumer Law ss 60, 64, 268
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) rr 14, 22
Cases cited:Allesch v Maunz [2000] HCA 40
Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7
Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56Commissioner of Social Housing v Williams [2017] ACAT 53
Chessell & Anor v Reynolds [2018] ACAT 110
Doughty-Cowell v Kyriazis [2018] VSCA 216
GP v McKenzie and Ors [2018] ACAT 96
Hussain & Bilkis v Rahman [2016] ACAT 145
Hussain v Farhmand [2017] ACAT 107
Jago v The District Court of New South Wales & Ors[1989] HCA 46
Kioa v West [1985] HCA 81
Krown Living Pty Ltd v Lando [2016] ACAT 149
Legal Practitioner v Law Society of the ACT [2016] ACTSC 203
Polleycutt v Aldcroft [2019] ACTSC 174
Powley & Anor v Reynolds [2018] ACAT 103
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Reynolds v Chessell & Anor [2019] ACAT 119Reynolds v Verma & Anor [2019] ACAT 101
Rogers v The Queen[1994] HCA 42Superal-Wallace v Indypendent Pty Ltd & Anor [2016] ACAT 144
The Legal Practitioner v Council of the Law Society of the Australian Capital Territory (Stephen Stubbs) [2010] ACAT 19
Urbaniak-Bak v Council of the Law Society of the ACT & “RA” [2016] ACAT 156Verma & Anor v Reynolds [2018] ACAT 89
Walls v Coutts [2019] ACAT 104
List of
Texts/Papers cited: Beazley, Tout and Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Butterworths, 2014)
Tribunal:President G Neate AM
Date of Orders: 24 January 2020
Date of Reasons for Decision: 24 January 2020
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 17/2019
BETWEEN:
PATRICK LEO REYNOLDS
Applicant
AND:
DAVID POWLEY
First Respondent
LOUISE POWLEY
Second Respondent
TRIBUNAL:President G Neate AM
DATE:24 January 2020
ORDER
The Tribunal orders that:
1.The application for leave to appeal out of time against Orders 1, 2, and 3 made by Senior Member Ferguson on 10 September 2018 is dismissed.
2.The application for leave to appeal out of time against Order 2 made by Presidential Member McCarthy on 23 October 2018 is dismissed.
3.The appeal against Orders 1 and 2 made by Presidential Member Daniel on 15 April 2019 is dismissed.
4.The appeal against the directions of the Tribunal made on 14 June 2019 in relation to these proceedings is dismissed.
5.The application for the stay of all matters in matter XD 334/2018 is dismissed.
6.The application for the joining of matters XD 22/2018, XD 334/2018 and XD 800/2018 is dismissed.
………………………………..
President G Neate AM
Contents
ORDER
REASONS FOR DECISION
Introduction
Chronology of events
A preliminary legal issue
Applications for leave to appeal out of time — principles
The decision of Presidential Member Daniel refusing leave to appeal out of time
The hearing and what was decided
Mr Reynolds’ submissions
Consideration and conclusion
Application for leave to appeal out of time against Senior Member Ferguson’s decision
The length of the delay
The reasons for the delay
The merits of the appeal and prospects of success
Jurisdictional limit on the Powleys’ claim
Mr Reynolds’ alleged lack of capacity to conduct proceedings
Procedural and other issues
Substantive issues
Prejudice to the Powleys if leave is granted
Interests of justice
Conclusion
The decision of Presidential Member McCarthy of 23 October 2018
Other relief sought by Mr Reynolds
Concluding observations
Orders
REASONS FOR DECISION
Introduction
1.The present proceedings are brought by Patrick Leo Reynolds in an effort to have set aside the decision by the ACT Civil and Administrative Tribunal (the Tribunal) that he pay the sum of $24,565.70 to David and Louise Powley (the Powleys). Although, as will become apparent, the proceedings leading to the present application are not straightforward, the key events that are the subject of these proceedings can be set out briefly in chronological order.
2.By application lodged in the Tribunal on 21 March 2018, the Powleys brought proceedings in the Tribunal against Mr Reynolds who carried on a business trading as Ardglass Windows. The proceedings arose out of his supply and installation of double-glazed windows and doors at their home, in October 2017. The Powleys alleged that the installation and quality of the work was to a very poor standard; there was damage to interior walls, flooring and exterior brickwork; a structural post was removed from the kitchen window; and there was damage from penetration of asbestos eaves. The windows had not been certified or tested to meet Australian Standards, and that made the Powleys’ house insurance void for any claims relating to the windows. Therefore, the Powleys were unable to keep the windows and needed to have them replaced. The Powleys had paid $10,600.00, which was 50% of the contract cost.
3.The Powleys claimed $10,600.00 plus interest of $182.09 and the Tribunal filing fee of $150.00 — a total of $10,932.09. They also sought orders that they were not liable to pay the outstanding balance of $10,600 from the original contract.
4.After a series of procedures and orders, on 10 September 2018 the Tribunal constituted by Senior Member Ferguson ordered Mr Reynolds to pay the Powleys the sum of $23,510.00 plus interest of $1,055.70.
5.Following separate applications by the Powleys and Mr Reynolds, Presidential Member McCarthy made orders on 23 October 2018:
(a)dismissing the Powleys’ application that Mr Eric Polleycutt be removed as Mr Reynolds’ representative; and
(b)dismissing Mr Reynolds’ applications for an order that the orders of Senior Member Ferguson be set aside.
6.Following another series of communications between Mr Reynolds and the Tribunal, his application for leave to appeal out of time in relation to the decisions of Senior Member Ferguson and Presidential Member McCarthy were considered on 15 April 2019 by Presidential Member Daniel, who made orders to the effect that:
(a)Mr Reynolds’ application for an extension of time to appeal the orders of 10 September 2018 and 23 October 2018 was refused; and
(b)each of the Powleys’ applications for interim and other orders (in March and April 2019), including for Mr Polleycutt to be removed as Mr Reynolds’ representative, were dismissed.
7.On 2 May 2019 and 14 June 2019, Mr Reynolds made applications for appeal in relation to the decisions made on 10 September 2018, 23 October 2018 and 15 April 2019. On 14 June 2019, the Tribunal as presently constituted convened a directions hearing and gave directions in relation to the hearing of the appeal and any application for leave to appeal out of time to occur on 31 July 2019.
8.In an Application for Interim or Other Orders lodged on 5 July 2019, Mr Reynolds sought “Leave to appeal orders suggested as out of time”, namely:
(a)Orders 1, 2 and 3 made by Senior Member Ferguson on 10 September 2018;
(b)Order 2 made by Presidential Member McCarthy on 23 October 2018;
(c)Orders 1 and 2 made by Presidential Member Daniel on 15 April 2019; and
(d)Directions 1, 2 and 3 made by this Tribunal on 14 June 2019.
Those orders were listed in one of the documents attached to the enclosed Draft Application for Appeal (Attachment F),
9.Attachment F concluded with the following statement “Matter never in jurisdiction of ACAT to make decision on the matter or result in need to Appeal.” As will become apparent, Mr Reynolds has persistently raised what he sees as jurisdictional issues throughout the history of these proceedings.
10.The grounds relied on were set out in four other documents attached to the Draft Application for Appeal. Mr Reynolds sought the following orders:
(a)All orders in Attachment F to be set aside.
(b)Order for three matters to be joined XD 22/2018, XD 334/2018 and XD 800/2018.
(c)Stay of all orders in this matter (presumably XD 334/2018).
11.In response, the Powleys sought an order dismissing the application for leave to appeal out of time.
12.To provide the context in which the orders noted above were made and the basis on which the present proceedings were conducted, it is necessary to set out some of the communications from the parties and the Tribunal between the key events summarised above.
Chronology of events
13.As noted earlier, the Powleys lodged their application with the Tribunal on 21 March 2018. In his Response – Civil Dispute lodged with the Tribunal on 1 May 2018, Mr Reynolds disputed the Powleys’ claim. In the part of the form headed “Counter claim” he applied for the payment of $10,600.00 plus interest, and sought access to the Powleys’ site (apparently to remove his tools). In relation to any times or dates in the next 10 weeks that he or his representative might not be available for any conciliation process or hearing, Mr Reynolds wrote “none known at this time.”
14.On 9 May 2018, the Powleys lodged an application for default judgment with the Tribunal. They were advised that their applications could not be processed because Mr Reynolds had filed a response.
15.By email dated 10 May 2018, Mr Reynolds asked that his response be treated as a disputed claim (rather than a counter claim) and the document was marked accordingly by the Tribunal.
16.The parties were advised by email on 15 May 2018 that the matter was listed for conference on 13 June 2018, within the period when Mr Reynolds had stated he did not know of any date when he might not be available.
17.The conference was attended by the Powleys but not Mr Reynolds. The Tribunal (Member Warwick) made the following orders:
Noting there is no appearance by or for the respondent, orders made in the absence of the respondent:
1. Judgment for the applicant.
2. The respondent is to pay $10,932.09 to the applicant on or before 27 June 2018.
3. Counter claim dismissed.
18.On 13 June 2018, despite not attending the conference, Mr Reynolds lodged with the Tribunal an Application for Interim or Other Orders seeking, among other things, to have the Tribunal’s orders of that day set aside and the matter listed for another conference.
19.The parties were advised by email on 14 June 2018 that the Tribunal would consider the application on 26 June 2018. By a power of attorney signed on 26 June 2018, Mr Reynolds appointed Eric Polleycutt to be his attorney in relation to the proceedings before the Tribunal.
20.On 26 June 2018, the Tribunal (Member Trickett) ordered that the orders of 13 June 2018 be set aside. The Tribunal also ordered the Powleys to file an amended Civil Dispute Application by 29 June 2018, Mr Reynolds to file a response by 13 July 2018, and the application be relisted for directions hearing on 3 August 2018.
21.On 28 June 2018, the Powleys lodged an amended Civil Dispute Application with the Tribunal in which they claimed the amount of $25,000.00 plus $150.00 for the Tribunal filing fee, with interest to be determined by the Tribunal.
22.An email dated 12 July 2018 sent from Mr Reynolds’ email address purported to be a response to the Powleys’ application. In that response, Mr Reynolds applied for orders that the amended application be struck out and set aside. He asserted that the amended application was “deficient and unable in its current form [to] be addressed in any procedurally fair or reasonable manner” by himself or determined by the Tribunal. He asserted, among other things that “ACTA have no jurisdiction, and the respondent does not concede to the matter being herd” (errors in original).
23.At a directions hearing on 3 August 2018, the Tribunal (Senior Member Robinson) made orders requiring the Powleys to give to the Tribunal and Mr Reynolds any further evidence to be relied on at the hearing (including any expert evidence) by 17 August 2018. The Tribunal also ordered Mr Reynolds to give to the Tribunal and the Powleys any evidence to be relied on at the hearing by 24 August 2018. Orders were made about addresses and means of service for each party. The matter was listed for hearing on Monday, 10 September 2018. The Powleys, Mr Reynolds and Mr Polleycutt were present. On 8 August 2018, the orders were sent by email to the Powleys and by post to the nominated address for Mr Reynolds.
24.On 17 August 2018, the Tribunal received a letter from the Powleys with which was enclosed all relevant evidence and information that would be relied on by them at the hearing on 10 September 2018. The documents included:
(a)a summary of events between 19 June 2017 (the date of the contract between the Powleys and Mr Reynolds) and 15 March 2018;
(b)a copy of the contract of sale and installation, quotation information including a statement that “All Windows and Doors supplied by Ardglass Windows conform to all relevant Australian and European Standards,” and statements that a deposit of 50% would be required on order with a further 30% on delivery and the balance due on “satisfactory completion;”
(c)copies of email correspondence between Mr Reynolds and Mr Powley;
(d)copies of correspondence between the Powleys and Mark Boyle, a Senior Investigator with Access Canberra;
(e)a letter of demand dated 18 February 2018 from the Powleys to Mr Reynolds requesting the refund of the deposit of $10,600.00;
(f)a letter from Mr Boyle to Mrs Powley dated 27 February 2018 confirming advice by the Australian Window Association that the UK standard to which the windows had been certified “is not equivalent to the Australian Standard AS 2047;”
(g)an email dated 15 March 2018 from Mr Boyle advising that Mr Reynolds had advised him that the Camden Group in the UK had no interest in certifying the windows with the Australian Standard, and that Mr Reynolds had advised that he did not intend to seek certification of the windows and doors himself, and that Ardglass was no longer operating and that he had ceased installing windows and doors;
(h)a Special Purpose Inspection Expert Defects Report on the Powleys’ property prepared by George Pudja of Peak Consulting;
(i)a witness statement of Mr Boyle dated 9 August 2018;
(j)a quotation for window and door rectification work at the Powleys’ premises prepared by David Fisher of Smith & Sons dated 7 August 2018 in the amount of $34,110.00;
(k)material published by the Australian Window Association summarising consumer guarantees under the Australian Consumer Law;
(l)other information on buying and installing windows and Australian Standard 2047;
(m)correspondence between the Powleys and the Vinyl Council of Australia about the need for windows to comply with AS 2047;
(n)the Australian Window Association’s A Guide to Window and Door Selections;
(o)information about window glass regulations; and
(p)information about asbestos awareness training requirements.
25.On 17 August 2018, Mr Reynolds signed a power of attorney appointing Mr Polleycutt as his attorney in relation to proceedings before the Tribunal.
26.On 20 August 2018, the Tribunal received an unsigned typed document (apparently from Mr Reynolds) in relation to these proceedings which, among other things, dealt at some length with the contention that the amended application was beyond the Tribunal’s jurisdictional limit of $25,000.00 and that the Tribunal had no jurisdictional capacity to make orders or hear the matter. It asked that the jurisdictional matter be set down for hearing. The parties were advised by email that the issue had been referred to the Tribunal member for consideration and they would be advised of their decision in due course.
27.On 20 August 2018, an officer of the Tribunal registry sent an email to Mr Reynolds advising him that the senior case managing member had considered his attachment titled “Jurisdictional objection,” and asking him to complete an Application for Interim or Other Orders in the attached form, setting out the orders that he sought in relation to the jurisdictional issue and the grounds on which he said the Tribunal could rely to make those orders. He was advised that, once his application was received, the Tribunal would list that application for a hearing. As the substantial matter was listed for hearing on 10 September 2018, he was asked to make the application at his earliest convenience. No application was received before the scheduled hearing.
28.In an email at 1:11pm on 21 August 2018, the Powleys advised the Tribunal that they requested that the filing fee of $150.00 “be abandoned from this case, so as to remove the issue of an amount claimed exceeding limits of $25,000, as this appears to be causing an issue. … Hopefully this will resolve that particular issue and we will be able to move forward.” They also confirmed that, as previously advised during the last hearing, they would be out of the country from 22 until 31 August 2018 and would be unable to attend any hearing during that time.
29.In an email at 3:31pm on 21 August 2018, Mr Reynolds advised the Powleys and the Tribunal that, because his mother had taken a “dramatic turn for the worse” he had been advised that he should return to Ireland as soon as practicable. He had arranged to leave on 21 August 2018 with a return provisionally booked for 3 October 2018. He asked that “the matters [be] set out of the list in the short term to avoid any UN-necessary or avoidable disruption and expense.”
30.At 8:34am on 10 September 2018, an email from Eric (Mr Polleycutt) was sent to the Tribunal and Ms Powley. It stated that the respondent “had no response from the Tribunal in relation to the jurisdictional issue.” It advised that Mr Reynolds had returned, but neither he nor Mr Polleycutt had notice regarding the matter. It requested a directions hearing in the Magistrates Court or suitable jurisdiction. An officer of the Tribunal’s registry replied by email at 9:20am that day advising that the hearing was still commencing that day at 1:00pm and that Mr Polleycutt could address his 8:34am email to the Member hearing the matter during the interlocutory hearing.
31.Mr Polleycutt replied by email at 10:06am stating that he had “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.”[1] He asked the officer to identify when any interlocutory timing notice was served in any form.
[1] In subsequent proceedings before Presidential Member McCarthy, Mr Polleycutt said that he was in the ACT Supreme Court and Mr Reynolds was at work on 10 September 2018. As Presidential Member McCarthy observed, Mr Reynolds 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 about needing to be in the Supreme Court and he would have known about that commitment before 10 September 2018 and could have informed the Tribunal of the conflict. He never did. See Powley & Anor v Reynolds [2018] ACAT 103 at [37].
32.Another officer replied by email at 11:05am stating that “our system discloses that the hearing notice was sent out on or around 8 August 2018” and was sent with a copy of the orders made by the Tribunal on 3 August 2018 which set out the time and date of the hearing. The listing notice was sent to the address contained in the Tribunal’s order of 3 August 2018. The officer also noted that her subsequent email to Mr Reynolds of 20 August 2018 restated the hearing date in the context of the possibility of a further Application for Interim or Other Orders being filed. She advised that any request to adjourn the hearing would need to be made directly to the Tribunal Member at 1:00pm that day, and that Mr Reynolds or Mr Polleycutt may attend by telephone if unable to attend in person. She asked him to advise the Tribunal immediately of who would be in attendance and their preferred contact number(s) and that the Tribunal Member would contact him when she was ready to commence the hearing. There is no record of any reply being received to that email.
33.The Powleys attended the hearing. Neither Mr Reynolds nor Mr Polleycutt attended or participated by telephone. Mr Reynolds volunteered to the present Tribunal “We weren’t at Senior Member Ferguson’s thing, because we said it was an unlawful jurisdiction”.[2]
[2] Transcript of proceedings 31 July 2019 page 41
34.The hearing commenced at 1:25pm and concluded at 2:06pm. Senior Member Ferguson commenced by noting the recent email correspondence with Mr Polleycutt and considering whether to adjourn the hearing. She heard submissions from Mrs Powley (including about how the Powleys had complied with the Tribunal’s directions and Mr Reynolds had not) and noted the presence of David Fisher (a witness from Smith & Sons who had performed remedial work at the Powleys’ premises). Senior Member Ferguson stated that:
(a)she was bound by the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) to conduct proceedings that are as quick, inexpensive and informal as possible while having regard to procedural fairness for both parties;[3]
(b)the applicants and a witness had attended expecting a hearing;
(c)Mr Reynolds had adequate notice of the hearing and the opportunity to attend, but had failed to attend;
(d)Mr Polleycutt was given an opportunity to attend by phone but had not contacted the Tribunal with a telephone number, and she assumed that he did not wish to attend by telephone; and
(e)an adjournment would result in unacceptable disadvantage to the Powleys, particularly given the previous delays and non-attendance in this matter.
[3] ACT Civil and Administrative Tribunal Act 2008 section 7
35.Accordingly, Senior Member Ferguson decided to proceed on an ex parte basis to hear and determine the Powleys’ application.[4]
[4] Transcript of proceedings 10 September 2018 pages 3-4
36.Senior Member Ferguson said she would address everything on the file and would only grant orders on the basis of the evidence. She dealt first with the jurisdictional issue and confirmed that the Powleys had abandoned their claim to the $150.00 filing fee.[5]
[5] Transcript of proceedings 10 September 2018 pages 5-6, 14
37.The Tribunal then focused on the substantive claim, referring to the “comprehensive amount of evidence as provided by the Powleys in two folders titled “Summary of Events” and “Report + Evidence.”[6]
[6] See documents listed at [24]
38.Mrs Powley outlined the history of the installation of the windows in October 2017, the Powleys’ concerns about the quality of the work which they expressed to Mr Reynolds, the advice they sought from Mr Fisher about whether the installation was adequate, the work undertaken by Mr Reynolds and Mr Polleycutt in November 2017, the Powleys’ contact with the Office of Fair Trading, and Mr Reynolds’ request for their list of issues with the work he had carried out. Mrs Powley outlined issues around Mr Reynolds’ (and Mr Polleycutt’s) lack of a builder’s licence, asbestos awareness training or white card to work on a property, the penetration through asbestos, and the removal of a structural support from the kitchen window. The Powleys followed up with the Office of Fair Trading and were contacted by Mark Boyle who inspected the property and agreed that it was not up to standard. At that stage the Powleys found out that the windows had never been certified as conforming to Australian Standards even though the quote provided by Mr Reynolds stated that the windows met all Australian Standards and had been certified and tested. Mr Reynolds could not provide certification because the windows had not been tested. She referred to subsequent communications from Mr Boyle confirming that the Australian Window Association had advised the windows were not to Australian Standards and that it would involve a two-year testing process to get them standardised.[7]
[7] Transcript of proceedings 10 September 2010 pages 6-8
39.Senior Member Ferguson noted that in the original application the Powleys sought a refund of the amount paid to Mr Reynolds, but in their amended application they sought a lump sum of damages.
40.Senior Member Ferguson referred to written evidence including a witness statement from Mr Boyle, a quote from Smith & Sons for $34,110.00 (provided by Mr Fisher) and a building report from George Pudja of Peak Consulting dated 15 August 2018.[8] She was satisfied that Mr Pudja had complied with the expert witness code of conduct, and described the Peak Consulting report as “very comprehensive.” There was no counter evidence from the respondents of a similar level, but “simply a denial that they are liable or that they have done anything wrong.”[9] The evidence of Peak Consulting was, she considered, “compelling, to say the least.” The respondent had not attended so had not cross-examined Mr Pudja. Senior Member Ferguson accepted his evidence, which was “central” in the Powleys’ case. Based on that report, she was satisfied that the work was not carried out in a professional way, that it resulted in significant defects, and that the windows need to be removed and replaced to bring the whole installation to an acceptable standard.[10]
[8] Transcript of proceedings 10 September 2018 pages 8-9
[9] Transcript of proceedings 10 September 2018 page 10 lines 10-11
[10] Transcript of proceedings 10 September 2018 page 10 line 13
41.On the basis of the evidence, Senior Member Ferguson inclined to the view that Mr Reynolds was in breach of section 60 of the Australian Consumer Law and that the work satisfied the definition of “major failure” in section 268 of the Australian Consumer law because the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of that failure. The windows could not easily and within a reasonable time be remedied to make them fit for purpose, and they needed to be removed and replaced. The supply of services created an unsafe situation, particularly with regard to asbestos. Senior Member Ferguson was also satisfied that the windows were not of an acceptable standard, particularly as they do not comply with Australian Standards, and that Mr Reynolds was in breach of section 64 the Australian Consumer Law.[11]
[11] Transcript of proceedings 10 September 2018 pages 10-11
42.Senior Member Ferguson dismissed the cross-claim because Mr Reynolds had provided services from which the Powleys had derived no benefit. Consequently, there had been, in contractual terms, a total failure of consideration. Indeed, the Powleys were in a worse position because they had to remove the windows.[12]
[12] Transcript of proceedings 10 September 2018 Page 11 lines 27-28. As noted earlier in these reasons (see [15]), Mr Reynolds asked the Tribunal on 10 May 2018 to treat his response as a disputed claim rather than a counter claim.
43.The next issue was how to determine the amount of damages to put the Powleys in the same position, insofar as that was possible, as they would have been if the breach had not occurred (in other words, if the contract had been performed). Senior Member Ferguson noted that the Powleys would need to recover the cost of removing the current windows, the cost of remedial work, including action in relation to asbestos and the structural issue with the support post and the cost of reinstalling windows. She noted that the Powleys had not paid to Mr Reynolds the full contract price for installing the windows, and heard some evidence from Mr Fisher about the requirements for replacing the beam. On the basis that the quote from Smith & Sons covered all the work of rectification, removal and reinstalling, Senior Member Ferguson ascertained that the Powleys would be in the same position financially if the $10,600.00 that they did not pay Mr Reynolds was deducted from the amount of $34,110.00 quoted. Accordingly, she determined the amount of damages in the sum of $23,510.00 with interest from the date the final remedial work was completed to the date of decision.[13]
[13] Transcript of proceedings 10 September 2018 pages 11-14
44.On 10 September 2018, Senior Member Ferguson made the following orders:
Ex-Parte the respondent [that is, Patrick Leo Reynolds Trading as Ardglass Windows], pursuant to section 44 of the ACT Civil and Administrative Tribunal Act 2008:
1. The respondent’s request for an adjournment is refused.
2. The respondent shall pay the Applicants [that is, the Powleys] by 8 October 2018:
(a)$23,510.00 damages pursuant to section 267(4) of the Australian Consumer Law for breaches of section 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 counter claim 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.
45.On 12 and 13 September 2018, there was a series of email messages between Ms Tracey Gramlick of the Australian Window Association and an unnamed correspondent at Mr Reynolds’ email address, who Ms Gramlick took to be Mr Reynolds, about subpoenaed documents.
46.On 13 September 2018, Senior Member Robinson published reasons for decision in similar proceedings brought against Mr Reynolds.[14] He had applied to strike out the proceedings on the basis that the application exceeded the Tribunal’s jurisdictional limit of $25,000.00. The Tribunal understood Mr Reynolds’ position to be that the $25,000.00 limit includes the application fee and interest. Having considered section 18 of the ACAT Act (which sets the $25,000.00 limit on civil dispute applications) and section 19 (which deals with working out the amount of an application for jurisdiction), Senior Member Robinson concluded that a claim for interest is not included when working out the amount of an application.[15] Having also considered section 48 of the ACAT Act (Cost of proceedings), Senior Member Robinson concluded, in summary that “the applicant is entitled to claim up to the Tribunal’s jurisdictional limit of $25,000, plus interest. If the applicant is successful, the Tribunal may also order that the respondent pay (or reimburse) the application fee.”[16]
[14] Verma & Anor v Reynolds [2018] ACAT 89
[15] Verma & Anor v Reynolds [2018] ACAT 89 at [18]
[16] Verma & Anor v Reynolds [2018] ACAT 89 at [30]
47.On 14 September 2018, there was email correspondence between the Tribunal’s registry and Mr Polleycutt about a notice of new contact details in relation to XD 22/2018 and Mr Polleycutt’s request that the notification of addresses and emails be used in relation to the present matter and XD 800/2018. On 17 September 2018, Mr Polleycutt sent another email about a range of matters and, in relation to the present matter, referred to Senior Member Robinson’s “extensive determination on the matters of Jurisdiction.”[17] He then stated that it appeared that Senior Member Ferguson may not have considered the issues raised before Senior Member Robinson in that Senior Member Ferguson’s orders of 10 September 2018 “appear to have been in relation to an application the Tribunal Member had NO JURISDICTION to make.”
[17] This was, presumably, a reference to the decision in Verma & Anor v Reynolds [2018] ACAT 89
48.In an email from an officer of the Tribunal’s Registry dated 18 September 2018, Mr Polleycutt was advised that the Tribunal had made a final decision in relation to matter XD 334/2018 and that the Tribunal would not review or revisit the decision unless an application for appeal was filed by a party to the matter. The email included a link to the Tribunal’s website and an invitation to speak to the Appeals Section of the Tribunal by telephone. Mr Polleycutt replied by email that day noting that appeals are required to be filed in 28 days and seeking an extension to 46 days on the basis that the decision was ex parte, the Tribunal heard an application outside its jurisdiction without/against consent, and the orders did not appear to reflect “anything of value in the application that might be determined easily.” By internal email, the Appeals Section was asked to assist Mr Polleycutt with his question about applying for an extension of time to file an appeal.
49.In an email to the Tribunal registry dated 19 September 2018, Mr Polleycutt sought “further procedural assistance to how to deal with the Tribunal attending to matters with no jurisdiction.” He suggested that it was not possible to lodge an appeal to “such a matter that is not bona fide, fair or the application is … an application that could not be accepted in ACAT.” He suggested that, as the Tribunal “has no jurisdiction. ACAT’s hands are tied by the objectives to ensure decisions are fair to all parties. Thus any decision on Appeal within ACAT of a matter outside its jurisdiction would be as unfair, unjust and invalid to all parties as the first.” In an email later that day, an officer of the Tribunal’s Registry advised Mr Polleycutt that she had referred the issues raised in his emails of 18 and 19 September 2018 about the process for extensions and filing fees in relation to appeals to the Appeals Section of the Tribunal.
50.On 17 October 2018, nine days after being ordered to pay the Powleys the amounts stated in the orders, Mr Reynolds lodged an Application for Interim or Other Orders seeking, among other orders, an order that the orders made by the Tribunal on 10 September 2018 be “set aside/dismissed.”
51.On 22 October 2018, the Powleys lodged an application for an order that Eric Polleycutt be removed as Mr Reynolds’ representative.
52.Presidential Member McCarthy heard both applications on 23 October 2018 and made the following orders:
1. The applicants’ application dated 20 October 2018 for an order that Mr Eric Polleycutt be removed as the representative for the respondent is dismissed.
2. 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.
53.He published his written reasons for decision on 25 October 2018[18] explaining why:
(a)in the circumstances in which the application was made, he did not agree that Mr Polleycutt should be removed as Mr Reynolds’ representative; and
(b)he did not set aside the ex parte orders made by the Tribunal on 10 September 2018.
[18] Powley & Anor v Reynolds [2018] ACAT 103
54.In the course of those reasons, he addressed the issues raised by Mr Reynolds about whether the Tribunal had jurisdiction to make the orders where the Powleys had claimed $25,000.00 in compensation plus the $150.00 filing fee and described Mr Reynolds’ submissions as “misconceived.”[19] He continued:
[34] 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.[20] In other words, Verma & Anor v Reynolds is authority that directly contradicts Mr Polleycutt’s submission.
[35] 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.
[19] Powley & Anor v Reynolds [2018] ACAT 103 at [33]
[20] Verma & Anor v Reynolds [2018] ACAT 89 at [18] and [30]
55.Presidential Member McCarthy also ruled on submissions made by Mr Reynolds about the “new information” said to be relevant to his case, and the reasons why it was submitted that Mr Reynolds and Mr Polleycutt did not attend the hearing on 10 September 2018. Presidential Member McCarthy set out other factors that caused him to conclude that he should not set aside the Tribunal’s orders, including that Mr Reynolds had not complied with the Tribunal’s directions regarding filing and service of evidence in preparation for the hearing, there was evidence before the Tribunal that the windows Mr Reynolds installed were not compliant with the relevant Australian Standard, and quotes totalling $41,642.60 for rectification work.
56.Presidential Member McCarthy also took into account the delay between when Mr Reynolds and Mr Polleycutt were informed of the orders (11 September 2018) and when Mr Reynolds filed his application for the orders to be set aside (17 October 2018). Presidential Member McCarthy concluded that the application was prompted by enforcement proceedings that the Powleys commenced in the ACT Magistrates Court.
57.On 3 December 2018, Mr Reynolds sent to the Tribunal three copies of an email which referred as its subject to three matters to which he was the respondent: “22; 334; 800 / 2018” in two of the emails and “22; 338[sic]; 800 / 2018” in the third. Attached to one email was a document that appeared to be a notice of appeal to the ACT Supreme Court in matter XD 334 of 2018 Powley & Powley v Reynolds. However, the form was not “Form 5.4 Supreme Court-notice of appeal” made under the Court Procedure Rules 2006 but was headed “Form 5.4 ACAT then Supreme Court-notice of appeal.” In that heading and elsewhere, the form had been modified for the purpose of those appeals.
58.Each email message included the following:
Please see attached the notice of Appeal. Could you please:
Receipt correspondence;
Provide any procedural requirements to have filing fees remitted in the matter;
I think the Appeal is “in time” due to availability of reasons to apply. However, if “timing” an issue please advise of any lateness and any procedural requirements to have reasons submitted and addressed;
Not sure if this is a Supreme Court Appeal or first has to obtain ACAT refreral [sic] or initial Appeal processes. If you could advise on the procedure for the parties that would be appreciated, as I have tried to format “in time” as best I can. (errors in original)
59.An officer of the Tribunal registry replied to those emails by email that afternoon. In summary, the email stated that:
(a)an Application for Appeal must be made within 28 days of the decision being made and if Mr Reynolds was outside that period he would need to apply for leave to appeal on an Application for Interim or Other Orders form accompanied by specified information (the nature of the case, the questions involved, and the reasons why leave should be given) and a draft Application for Appeal;
(b)Mr Reynolds had completed the incorrect application form;
(c)a copy of the correct Application for Appeal form and an Application for Interim or Other Orders were attached to the email;
(d)there was a specified fee to file an Application for Appeal, which would not become payable until such time as an application for leave to appeal out of time was granted; and
(e)Mr Reynolds had referenced three different matters and, as these matters were all heard separately, he would need to lodge an Application for Appeal for each individual matter.
60.Mr Reynolds replied by email on 4 December 2018 and attached what he described as “the correct ACAT forms.” He stated that the forms of appeal lodged on 3 December 2018, to be attached to those forms, were his “written statement showing the accompanied information.” Although his email was not clearly expressed, Mr Reynolds referred to his belief that the fact that the Tribunal had not provided reasons for decisions had “led to the non-compliance with ACAT objectives and the inability of the Tribunal to attend those Applications in a manner a right thinking person might suggest.” Having expressed criticism of the Tribunal and stated that appeals “appear the most inexpensive, quick and efficient manner for these matter to be dispensed by the Tribunal in a just fair and timely manner” (whether by leave to the Supreme Court or internally), he asked the Tribunal to identify the “timing” issues.
61.On 6 January 2019, Mr Reynolds sent an email to the Tribunal in relation to all three matters in which he was involved. The email made complaints about the Tribunal and its processes generally, including complaints about the timeframe for filing appeals and the process of obtaining written reasons and transcripts.
62.The Acting Registrar provided a response to this email on 16 January 2019.
63.Following the receipt of that response, Mr Reynolds sent a further email to the Tribunal to request that the Registrar “clarify some points that seem to have fallen though the crack.” The email then went on to reiterate the concerns of the email dated 6 January 2019, although they were expressed in different terms. It also was critical of the decision dated 23 October 2018 and the reasons for decision on 25 October 2018. The Acting Registrar replied briefly by email on 17 January 2019.
64.By email to Mr Reynolds dated 25 January 2019, an officer of the Tribunal registry apologised for the delay in responding to his email message of 4 December 2018 and reiterated that an Application for Appeal must be made not later than 28 days after the day the decision is made. The email continued, “As the decisions were made on 25 October 2018,[21] the Application for Appeal would have had to be lodged on 22 November 2018.” Because Mr Reynolds was out of time to lodge the Application for Appeal, he would need to apply for leave to appeal out of time on each file. An Application for Interim or Other Orders was attached for his convenience. Mr Reynolds was advised that the Tribunal was “unable to process your Applications for Appeal until such time as you apply for leave to appeal out of time.”
[21] The date of 25 October 2018 was the date nominated by Mr Reynolds in his application. As noted earlier, the decision was dated 23 October 2018.
65.On 25 January 2019, a long email from Mr Reynolds’ email addressed to the Tribunal and others raised various issues and made wide-ranging criticisms of different aspects of the Tribunal’s administration and “discourse.”
66.In a letter to Mr Reynolds dated 5 February 2019, the Acting Registrar referred to his emails of 22 and 29 January 2019 and outlined her understanding of his position in relation to the three matters to which he was the respondent. She referred to information about appeals that had been provided to him in previous correspondence on several occasions, most recently in the email of 25 January 2019, and reiterated the advice about applying for leave to appeal out of time.
67.On 28 February 2019, Mr Reynolds filed an Application for Interim or Other Orders to which he attached a 13 page typed document (Attachment A) together with an Application for Appeal to which he attached the notice of appeal document sent to the Tribunal on 3 December 2018. The orders sought in the application for interim or other orders were not clearly stated. They were “Leave to appeal orders suggested as possibly out of time.” It would appear from the notice of appeal document that he was appealing the orders made by Presidential Member McCarthy on 25 October 2018. The grounds of appeal set out raised a number of issues with the hearing conducted by Senior Member Ferguson on 10 September 2018.
68.On 30 March 2019, the Powleys lodged an Application for Interim and Other Orders seeking the removal of Mr Polleycutt as the representative of Mr Reynolds.
69.On 10 April 2019, the Powleys lodged another Application for Interim and Other Orders seeking orders to the effect that:
(a)The actions of Mr Reynolds and Mr Polleycutt “be noted as frivolous, obfuscatory, lacking in actual knowledge and substance of the case in hand and an abuse of process”.
(b)Mr Reynolds’ Application for Appeal be dismissed.
(c)Mr Reynolds and Mr Polleycutt be forbidden from making further applications or sending further submissions to the Tribunal.
(d)Mr Reynolds be deemed frivolous and vexatious in his proceedings.
70.On 15 April 2019, Presidential Member Daniel considered Mr Reynolds’ application for leave to appeal out of time in relation to the decisions of Senior Member Ferguson on 10 September 2018 and Presidential Member McCarthy on 23 October 2018.
71.Mr Reynolds and the Powleys were present at the hearing of that application. Each party represented themself. The hearing went from 2:40pm until 4:56pm, approximately two hours. At the conclusion, Presidential Member Daniel made orders to the effect that:
(a)Mr Reynolds’ application for an extension of time to appeal the orders of 23 October 2018 and 10 September 2018 was refused; and
(b)each of the Powleys’ applications for interim or other orders, including for Mr Polleycutt to be removed as Mr Reynolds’ representative was dismissed.
72.In an email to the Tribunal dated 20 April 2019, Mr Reynolds sought reasons for decision of Senior Member Ferguson and Presidential Member Daniel. After correspondence confirming the identity of the author of that email, the Tribunal replied by email dated 29 April 2019 advising him that:
(a)by operation of section 60 of the ACAT Act, a request for reasons must be made within 14 days of the date of the orders and, because the request for reasons for Senior Member Ferguson’s decision of 10 September 2019 was outside that period, no reasons would be provided, however he could order the transcript by using the link provided in the email; and
(b)his request for reasons for decision of Presidential Member Daniel had been forwarded to her for her attention noting that, under section 60 of the ACAT Act, a member may prepare written reasons for decision (which might be published online) or may decide to provide a transcript of the oral reasons for decision.
73.Mr Reynolds was advised that any application for appeal must be lodged within 28 days of the date of the orders, not from the date he received a written reasons or transcript containing the oral reasons.
74.Arrangements were made for Mr Reynolds to inspect the Tribunal’s files in relation to the three sets of proceedings against him, including the present proceedings brought by the Powleys. That occurred on 10 May 2019, and he was sent copies of documents including the transcript of the hearing on 15 April 2019.
75.On 2 May 2019, Mr Reynolds lodged an Application for Appeal in relation to decisions made on 10 September 2018, 23 October 2018 and 15 April 2019. The orders sought were “HOLDING APPEAL with the view to set aside orders.” The interim orders he sought were “Reasonable notice of hearings. Combining matters to be heard together XD 22/2018, XD 334/2018 & XD 800/2018.”
76.On 29 May 2019, the parties were advised that a directions hearing in relation to the appeal was listed for Friday, 14 June 2019.
77.On 12 June 2019, Mr Reynolds was advised by email that the Tribunal had decided that a transcript of the oral reasons given at the hearing on 15 April 2019 was sufficient to cover his request. A copy of that transcript was enclosed.[22]
[22] As noted earlier, the Tribunal previously provided a copy of that transcript to Mr Reynolds on 10 May 2019.
78.On 14 June 2019, Mr Reynolds lodged a copy of the Application for Appeal dated 2 May 2019 together with a five-page typed document headed “Powley XD 334/18”.
79.On 14 June 2019, the Tribunal as presently constituted gave directions which, in summary, were that:
(a)Mr Reynolds was to file in the Tribunal by 5 July 2019 any application for leave to appeal in relation to the decision of the Tribunal dated 10 September 2018 and any written submissions in support of that application (Direction 1);
(b)Mr Reynolds was to provide the Powleys and the Tribunal by 12 July 2019 with a written statement identifying every error of law or fact that he says was made by the Tribunal on 15 April 2019 (identifying the page or pages of the transcript of that hearing where each error was made) and a written outline of submissions about why the Tribunal was in error, and the orders that the Appeal Tribunal should make (Direction 2); and
(c)the Powleys were to provide to Mr Reynolds and the Tribunal by 26 July 2019 a written outline of submissions in response to any application for leave to appeal out of time made in accordance with Direction 1, and the documents provided by Mr Reynolds, and the orders that the Appeal Tribunal should make (Direction 3);
(d)the hearing of the appeal and any application for leave to appeal out of time occur on 31 July 2019 (Direction 4).
80.On 5 July 2019, Mr Reynolds lodged an Application for Interim or Other Orders together with a draft Application for Appeal which:
(a)appeared to comply with Directions 1 and 2 by seeking that the orders in the decision of the Tribunal on 10 September 2018 and 15 April 2019 be set aside; and
(b)went beyond these direction by seeking that the orders in two other decisions of the Tribunal be dismissed, namely:
(i) the decision of Presidential Member McCarthy on 23 October 2018 that dismissed Mr Reynolds’ application dated 9 October 2018 for an order that the orders of the Tribunal made on 10 September 2018 be set aside; and
(ii) directions 1, 2, and 3 made by the Tribunal as presently constituted on 14 June 2019.
81.The following five documents were attached to the documents lodged by Mr Reynolds on 5 July 2019:
(a)A typed document of 13 pages (Attachment A filed previously) which commenced with a statement that the Supreme Court is asked to “provide legal determination to assist” the Tribunal, and included 75 questions (apparently addressed to the Supreme Court) before referring to specific issues raised by Mr Reynolds in relation to the application for leave to appeal out of time, many of which related to other proceedings of a similar nature brought by Mr Reynolds but only some of which were in relation to this application.
(b)A typed document of 17 pages concerning questions of law and fact in relation to the Powleys’ proceedings as well as other proceedings of a similar nature brought against Mr Reynolds by different applicants and which were the subject of separate proceedings before the Tribunal as presently constituted[23] (Attachment B).
(c)A typed document of eight pages of submissions concerning the present application (and the applications in relation to proceedings involving other respondents) (Attachment C).
(d)A handwritten document of one page listing four decisions of the Tribunal between 10 September 2018 and 14 June 2019 that are the subject of the present application (Attachment F).
(e)A typed document of five pages in relation to the present application (Attachment G).
[23] AA 10/2019 Reynolds v Verma & Rees; AA 16/2019 Reynolds v Chessell & Anor
82.In compliance with Direction 2, Mr Reynolds provided the Powleys and the Tribunal with a typed document of seven pages identifying every error of law or fact that he said was made by the Tribunal on 15 April 2019 identifying the page or pages on the transcript of the hearing where each error was made. He also provided a written outline of submissions about why the Tribunal was in error on that occasion and the orders that the Appeal Tribunal should make.
83.In accordance Direction 3, on 23 July 2019 the Powleys provided a typed two-page document in response to Mr Reynolds’ application for leave to appeal out of time and the documents provided by him.
84.Before considering the merits of the applications, it is appropriate to note some unusual features of Attachment A to Mr Reynolds’ applications and describe how this Tribunal will treat that document.
85.Attachment A commenced with the following:
Executive summary:
Supreme Court is asked to provide legal determination to Assist ACAT:
· Examine and answer questions of law relevant to ACAT decision on appeal:
· Supreme Court is asked:
· Confirm, vary or set aside the ACAT decision;
· Remitting the case to ACAT to be heard and decided again, with or without hearing of further evidence;
· To exercise and of the powers of the ACAT, including the power to receive further evidence; and
· Order the safe custody and photography of the Respondents windows ASAP;
· To make any other appropriate order: (errors in original)
86.Attachment A then listed 75 questions grouped in relation to each or all of the three appeal proceedings currently before this Tribunal:
(a)XD 334/2018, AA17/2019 Reynolds v Powley - Questions 1 to 10;
(b)XD 22/2018, AA 16/2019 Reynolds v Chessell - Questions 11 to 24;
(c)XD 800/2018, AA 10/2019 Reynolds v Verma & Rees - Questions 25 to 52; and
(d)Questions 53 to 75 in relation to all three proceedings.
87.It is not apparent on the face of the document how the advice of the Supreme Court would be sought and obtained. When asked by this Tribunal what was intended, Mr Reynolds was unable to provide any clear explanation of how the Supreme Court might become involved. He agreed that one way might be to appeal the decision of this Tribunal. He asked the Tribunal to suggest other options.[24] He also asked “So then how do I get these questions answered?”[25]
[24] Transcript of proceedings 31 July 2019 page 33
[25] Transcript of proceedings 31 July 2019 page 34
88.When it was put to Mr Reynolds that, in any case, Question 1 “Can ACAT file and serve a claim above the legislated jurisdictional limits of authority?” was misconceived as it is the parties not the Tribunal that files and serves a claim, he suggested that the Tribunal files claims. In discussion with this Tribunal he agreed that the question was “incorrectly formed” and that the question might have been whether an applicant can file and serve a claim above the Tribunal’s jurisdictional limit.[26]
[26] Transcript of proceedings 31 July 2019 pages 34-35
89.Mr Reynolds informed the Tribunal that:
(a)despite the terms of the Executive Summary quoted above, the Tribunal was being asked to answer the questions listed for this case (Questions 1 to 10); and
(b)in relation to the present case, the Tribunal should also answer Questions 21, 32, 34 to 46, 49, 50 and 52 which inadvertently were not included in that list.[27]
[27] Transcript of proceedings 31 July 2019 pages 32-41, 53-60
90.Questions 1 to 10 in Attachment A started by asking, in summary, whether the Tribunal can “file and serve,” “administer” and “hold a hearing” for a claim “above the legislated jurisdictional limits of authority” (Questions 1, 2, 3 and 7). Although somewhat unclear, the questions raised issues about whether the Tribunal can “amend” (presumably permit amendment) the amount claimed to reduce it to the jurisdictional limit, on an ex parte application without notice to Mr Reynolds, then continue to hear and determine the matter ex parte without notifying Mr Reynolds (Question 4 to 6).
91.Mr Reynolds asked whether it was proper for the Tribunal not to consider an applicant’s evidence that makes the application “vindictive, malicious and an abuse of process in determining the Applicants favour” (Question 9).
92.He also asked whether the Tribunal can determine that the use of certain words and phrases was not offensive, derogatory or in contempt (Question 10). That issue was specific to the Chessells’ proceedings and need not be considered further here.[28]
[28] Transcript of proceedings 31 July 2019 pages 38-39
93.Questions 21 and 69 referred to the statements made by Mr Boyle on 9 August 2018 and continued “not putting in that statement that ACCESS Canberra in April 2018 official records of communications with the Applicant that the Goods being investigated had been certified and communicated to the Applicant of a Matter Re-filed had documented.” (errors in original)
94.Questions 34 to 38, although unclear, raised issues based on Mr Reynolds alleged “legal disability”, including whether the Tribunal should have allowed him to appear “without proper guidance determination and legal protection,” whether his power of attorney to Mr Polleycutt was invalidated, whether the Tribunal can “impose preference” against him, and whether the Tribunal can make default orders based on the parties having ample time to prepare when it had “defined that one of the parties is suffering from legal disability” and it “took no affirmative action to providethe considerable assistance in order for Mr Reynolds to simply understand the process in which he is involved.” Those matters are dealt with later in these reasons for decision.[29] It is sufficient to note at this stage that (unlike in the two other similar proceedings against Mr Reynolds) the Tribunal did not order that Mr Polleycutt be prevented from representing Mr Reynolds in these proceedings.
[29] See [200]-[219]
95.Some of the questions in that set related to or repeated questions in later sets in Attachment A.
96.Questions 53 to 75 were described as other questions involved for all three cases. Some were not questions but were topics which did not identify particular errors in the decisions in any of the cases. For example:
53) Procedural fairness
54) Prejudicial conduct
55) Public Authorities breaches of Human rights (Human Rights Act 2004 ACT Legislation)
97.Questions 56 to 60 asked about whether the Tribunal was covered by or subject to the Legal Profession Act 2006, the Guide to Judicial Conduct “prescribed” by the Australian Institute of Judicial Administration Incorporated, the Court Procedures Rules 2006, the ACAT Act, and the ACT Civil and Administrative Tribunal Procedure Rules 2009.
98.Other questions in that set and some questions listed earlier in Attachment A appeared to relate to aspects of the proceedings but did not identify specific errors of fact or law in a particular decision or decisions. In summary, there were questions about:
(a)the Tribunal’s legal capacity to determine a Class C builder in the ACT, whether the Tribunal could decide whether Mr Polleycutt is a builder (“on facts not in existence”), and whether the Tribunal was required to be able to identify and consider the “fundamental exemptions” to the Building Act and regulations “they are to abide by” (Question 61);
(b)whether the Tribunal could ignore a document that provides “compliant information” in relation to a matter that is not on a Tribunal form (Questions 32 and 63);
(c)whether the Tribunal could be satisfied “the service and or goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of[30] that misconceived failure of ACAT to apply the relevant section of the Law in the matter before it” (Question 43);
(d)whether the Tribunal could “determine ‘asbestos’ when there is no legal obligation or evidence to suggest” that Mr Reynolds is liable (Question 44);
(e)whether the Tribunal can legally determine a party’s standing as “legally impaired” because they raise issues of service, jurisdiction, and decisions made with no reasons available for up to five months, and whether the Tribunal can refuse the filing of appeals as “out of time” because of the Tribunal’s “defective administration” (Question 65);
(f)whether the Tribunal is legally required to have filed a written understanding and agreement to be bound by the Expert Witness Code of Conduct and how the Tribunal can be satisfied of compliance with that code of conduct (Questions 42 and 66);
(g)whether the Tribunal has legal capacity to accept assistance from a party with no relevant areas of expertise in a matter, or who is incapable of making all enquiries appropriate to the issues about which he is an “expert and author” (Questions 67 and 68);
(h)the application of law “after the (contract 95% complete to include to include terms not agreed: I.E. ‘you are not willing to have the windows tested and certified to Australian Standards’) event exparty without consent and not in legislative Law be applied by ACAT” (Question 70);
(i)whether an applicant is required to be honest, upfront and disclose all relevant information in the claim in the Tribunal (Question 71);
(j)whether the Tribunal can legally determine the aggregate of claims of damages when no such damage is evident and the claim is “based on the possibilities with regard to conjecture of happens that may or may not occur” (Questions 50 and 73); and
(k)whether the Tribunal can disregard the applicants’ “qualifications and position of power and use of deception conduct to obtain financial advantage” (Question 75).
[30] See summary of Senior Member Ferguson’s decision at [40]
99.Other questions were more broadly expressed, for example asking:
(a)whether the Tribunal is legally obliged to ensure a fair hearing (Question 39);
(b)whether, in providing default judgment, the Tribunal can bypass the legal responsibility for the applicants to provide all relevant facts to establish their claim (Question 40);
(c)whether the Tribunal is legally obliged to consider all the evidence before it, apply the relevant law, and consider any defence that might be applied within the relevant law, before considering any remedies (Question 41);
(d)whether the damages assessed by the Tribunal can include costs that the applicants “would be required to incur regardless to achieve what they desired” (Question 45);
(e)whether the Tribunal can disregard laws of ownership and liability “to obtain what the Applicants failed to attend to assert ‘damages’” (Question 46);
(f)whether the Tribunal can, in its own investigations and application of the law, ignore the law it seeks to apply “to provide for a prejudicial outcome that is not possible from the reasonable interpretation of the applicable laws” (Question 62);
(g)whether the Tribunal can alter Mr Reynolds’ address for service of documents without notice or application (Question 64);
(h)whether the Tribunal can hear the “appeal” of three “related, concurrent and incestuous Applications, reasonable or evidentially able to make a legal decision in regards to the reasons for the initial decision being ‘appealed’” when the Tribunal’s administration and procedures do not allow those reasons to be in existence at the time, or whether the Tribunal is legally required to hold the appeal until those reasons are made known (Questions 49 and 72); and
(i)whether there are legal requirements for the Tribunal to seek to protect participants attending the Tribunal from personal violence, from inciting personal violence, and making orders that are not appealable in the time, and that are not capable of being before the court for enforcement because they are above the jurisdictional limit (Question 74).
100.The role of this Tribunal in these proceedings is not to answer a series of abstract questions of the type outlined about. Rather, as explained to Mr Reynolds at the hearing, this Tribunal will deal with the issues that have to be decided in order to rule on:
(a)the appeal against the decision of Presidential Member Daniel refusing the application for leave to appeal out of time against the decision of Presidential Member McCarthy; and
(b)the application for leave to appeal out of time in respect of the decision of Senior Member Ferguson.
101.Some of the questions listed in Attachment A might be answered in the course of that process. But it is not the role of this Tribunal in these proceedings to provide advisory opinions in response to those questions.
102.The Powleys submitted that Attachment A is merely a list of questions to the Tribunal and does not actually state any laws that the errors are related to. That submission is largely, but not completely, correct. There are passages late in Attachment A that set out submissions in relation to the application for leave to appeal out of time to which reference will be made later in these reasons for decision.
103.It is also appropriate to note, at this point, that (as is evident from some of the quoted questions) many of the submissions and other statements contained in the documents provided with Mr Reynolds’ applications were difficult to understand and, indeed, in parts were incomprehensible. As the Powleys put it in their written submissions, the “numerous pages/attachments provided are difficult to comprehend and respond to due to the manner in which they are written.” The Powleys found the text “difficult to interpret and therefore, gain a perspective on what is being stated.” In their submission, the material was not in accordance with the directions made by this Tribunal on 14 June 2019. The Powleys also noted that Attachment C related to three separate cases, including the present proceedings. It is not always clear from that document which paragraphs relate to which case. It is written in a format/text that is difficult to interpret and respond to. Attachment G appeared to be a timeline of events in which no errors of law or fact were stated.
104.The difficulties posed by the documents are discussed later in these reasons for decision, and will be apparent from passages quoted at various places below.
105.It is also worth noting that some of Mr Reynolds’ submissions, including statements in Attachment A that were critical of the Tribunal and of the Powleys were expressed in colourful at times offensive language. They were made without specified factual foundation. They did not provide grounds for the grant of leave to appeal out of time, nor did they add support to any of his other submissions.
A preliminary legal issue
106.The scope of Mr Reynolds’ application raises a broader legal issue, namely whether (assuming each appeal was within time or leave was granted to appeal out of time) the Tribunal has the power to hear and determine each one of those appeals. In short, there are decisions of the Tribunal, including a decision of a differently constituted Appeal Tribunal delivered after the hearing of the present application, to the effect that the Tribunal has no power to hear appeals in relation to what are described as interlocutory orders or decisions.
107.In Walls v Coutts,[31] the Appeal Tribunal drew on a previous decision of an Appeal Tribunal in GP v McKenzie and Ors[32] (GP) and a Tribunal decision in The Legal Practitioner v Council of the Law Society of the Australian Capital Territory (Stephen Stubbs).[33] Those earlier decisions were to the effect that various sections of the ACAT Act dealing with appeals, when interpreted in the ordinary meaning of the words, could only have referred to a final decision of the initiating application, and that there was no express power to appeal interlocutory decisions.[34] The approach taken in GP was to ask whether the consequence of the order or orders being challenged “finally determine the parties’ rights in the principal causes of action.”[35] The Appeal Tribunal concluded in GP that the decisions being considered in that case did not formally determine the parties’ rights in the principal causes of action (defamation claims) and hence the decisions were interlocutory decisions and no appeal lay from them.[36]
[31] Walls v Coutts [2019] ACAT 104
[32] GP v McKenzie and Ors [2018] ACAT 96
[33] The Legal Practitioner v Council of the Law Society of the Australian Capital Territory (Stephen Stubbs) [2010] ACAT 19
[34] See GP v McKenzie and Ors [2018] ACAT 96 at [60], [61]
[35] GP v McKenzie and Ors [2018] ACAT 96 at [68]
[36] GP v McKenzie and Ors [2018] ACAT 96 at [68]
108.The Appeal Tribunal in Walls v Coutts considered in detail whether internal appeals can be made from interlocutory decisions of the Tribunal. It focused on section 79 of the ACAT Act, relevant parts of which provide:
Appeals within tribunal
(1) This section applies if—
(a)the tribunal has decided an application (the original application); and
(b)the original application was not an appeal from a decision by the tribunal.
…
(3) A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.
109.Having considered a textbook on appeals,[37] the expressions “original application” and “decision” in section 79 of the ACAT Act, the definition of “application” and “authorising law” in the Dictionary in that Act, and section 9 (Applications under authorising laws), the Appeal Tribunal concluded that “only final decisions of the originating process can be appealed within the tribunal.”[38] The Appeal Tribunal continued:
If ‘application’ in section 79 is limited to the originating process – then it follows that decisions on every other sort of application are simply not amenable to internal appeal. So, for example, an application for a private hearing, or for interim orders, or for costs are applications in a proceeding and would not be internally appellable. Decisions about how the matter should progress, and how the hearing should be conducted, would be appellable only in the context of an appeal from the final decision on the substantive application. A party dissatisfied with the outcome on such an interlocutory point must take their concerns to the Supreme Court, if an immediate review is sought.[39]
[37] Beazley, Tout and Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Butterworths, 2014)
[38] Walls v Coutts [2019] ACAT 104 at [24]
[39] Walls v Coutts [2019] ACAT 104 at [27]
110.The Appeal Tribunal also noted that the other key term in section 79 is “decision.” It was not disputed in that case that the accepted meaning of decision (which excludes interlocutory findings or reasons) should be adopted.[40]
[40] Walls v Coutts [2019] ACAT 104 at [28]
111.The Appeal Tribunal concluded:
[W]e consider that on its correct interpretation section 79 of the ACAT Act permits an internal appeal to be brought from a final decision on an originating process. It needs to be a decision – not merely a reason or ruling on the way to a decision – and it needs to determine the rights of the parties in the substantive application.[41]
[41] Walls v Coutts [2019] ACAT 104 at [30]
112.This matter was not raised by the Powleys, Mr Reynolds or this Tribunal during the hearing of the present application. The fact that it was not raised does not confer on this Tribunal the power to decide appeals against interlocutory orders.
113.On the basis that those decisions correctly state the applicable law, it is apparent that this Tribunal does not have power to hear the applications in respect of most of the orders identified by Mr Reynolds in Attachment F.
114.Consequently, only the orders made by Senior Member Ferguson could properly be the subject of an appeal. That does not mean they are the subject of an appeal. That will only occur if leave is granted to appeal out of time. Accordingly, it is necessary to deal with the application for leave to appeal out of time in relation to those orders.
115.In addition, given that the legal issue was not raised by or before the parties to these proceedings, it is appropriate to express conclusions in relation to the merits of the case, as argued by the parties, primarily in relation to the decision of Presidential Member Daniel on 15 April 2019.
Applications for leave to appeal out of time – principles
116.Section 79 of the ACAT Act allows a party to appeal a decision made by an Original Tribunal on a question of fact or a question of law. Under section 81, appeals are considered within the Tribunal by an Appeal Tribunal.
117.A notice of appeal must be filed in the Tribunal not later than 28 days after the day the original decision is made.[42] Once time runs out, the party has to apply for leave to appeal out of time. The application for leave to appeal must be accompanied by a draft notice for appeal, and must have a written statement showing the nature of the case, the questions of fact or of law that the person says are involved in the appeal, and the reasons why leave should be given.[43]
[42] ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) rule 14
[43] ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) rules 14 and 22
118.An application for leave to appeal out of time is not an appeal in itself, and a decision about such an application is not a decision of an Appeal Tribunal. There is no appeal unless leave is granted.[44]
[44] See the discussion of this by Elkaim J in Legal Practitioner v Law Society of the ACT [2016] ACTSC 203
119.The principles that the Tribunal must follow when considering an application for leave to appeal out of time are well-established and used regularly by courts and tribunals. In Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority)[45] (Concerned Citizens), Refshauge J summarised the principles he had set out in an earlier case:[46]
[45] [2015] ACTCA 56
[46] [2015] ACTCA 56 at [21]
1. Time limits are important and must, prima facie, be obeyed.
2. In order to justify a court acceding to an application to extend time, there must be some material on which the court can exercise its discretion.
3. Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so.
4. There should be an explanation for the delay, as to which any action (other than to appeal) that has been taken by the applicant is relevant.
5. The court must consider any prejudice to the respondent in defending the proceeding, as caused by the delay, and any such prejudice will tell against the extension.
6. The mere absence of prejudice is not enough to justify the extension of time.
7. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted.
8. The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case.
9. Nevertheless, the application is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula.
10. In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.
120.That passage has been relied on by the Tribunal in published decisions[47] and oral ex tempore decisions.
[47] See, for example, Urbaniak-Bak v Council of the Law Society of the ACT & “RA” [2016] ACAT 156; Krown Living Pty Ltd v Lando [2016] ACAT 149; Hussain & Bilkis v Rahman [2016] ACAT 145; Superal-Wallace v Indypendent Pty Ltd & Anor [2016] ACAT 144
121.In essence, the principles require the Tribunal to consider the applicant’s explanation of the delay, any prejudice to the other party, the merits of the proposed appeal and whether justice requires the application to be allowed.
The decision of Presidential Member Daniel refusing leave to appeal out of time
The hearing and what was decided
122.In dealing with Mr Reynolds’ application for an extension of time to appeal the decisions of Senior Member Ferguson and Presidential Member McCarthy, Presidential Member Daniel considered methodically and in sequence the issues raised by Mr Reynolds in writing, clarifying as best she could the essence of each. That task was complicated by the fact that Mr Reynolds did not have the document with him in the hearing.
123.Having identified the main issues (as set out in Mr Reynolds’ notice of appeal), Presidential Member Daniel heard from Mr Reynolds and Mrs Powley on each, including about some evidence that was or was not before Senior Member Ferguson in respect of some issues. For present purposes a summary of the grounds of appeal and what transpired in relation to each issue is set out below.
124.The first ground of appeal was a failure of the Tribunal (Senior Member Ferguson) to record any reasons for its orders sought to be set aside available to the parties or to Presidential Member McCarthy. The submissions in relation to that ground ranged more widely and included contentions that:
(a)the respondents were not notified of the “interlocutory hearing” on 10 September 2018 until one hour before it commenced and requested it be adjourned for procedural fairness;
(b)the Tribunal allowed the Powleys to abandon their claim for the $150.00 filing fee to bring their application within the $25,000.00 jurisdictional limit of the Tribunal, without formal notice of the amendment being given to Mr Reynolds, and then assessed the claim to be above the jurisdictional limit and awarded the full amount of $34,110.00;
(c)the Tribunal considered incorrect material to support a decision not to grant an adjournment on the grounds notified by Mr Polleycutt on receiving the first and only notice of the interlocutory hearing one hour before the hearing;
(d)Senior Member Ferguson dealt with the claim for loss for just over $34,000.00;
(e)Senior Member Ferguson determined that there was a breach of terms of contract or consumer guarantee, and that the applicant had the onus of proving the relevant facts necessary to establish the claim (although a “right thinking person would not suggest anything but”). The Tribunal relied on the “Special Purpose Inspection Defects Report” by George Pudja to determine the facts necessary to establish the claim, but Mr Pudja’s “expert” qualifications relevant to that information were “misleading and deceiving,” and so he is not an expert. The report does not include the exceptions from certification and compliance with building codes of the relevant ACT law, regulations and applicable codes. Nor was any expert evidence given to Senior Member Ferguson about the assessment of asbestos damage relevant to the claim;
[234] Reynolds v Verma & Anor [2019] ACAT 101 at [274], [276]
276.Finally, Mr Reynolds was correct in contending that the Tribunal decided matters on the “balance of probabilities.” But he was incorrect in suggesting that the Tribunal proceeded on the “balance of undeterminable possibilities with no evidence of fact to support” and that the Tribunal’s decisions were based on manufactured “balance of what might not be possibilities” of unknown future events. Senior Member Ferguson proceeded on the basis of detailed, relevant documentary material provided by the Powleys.[235] She heard from the Powleys and their witness, Mr Fisher. She referred to the “comprehensive amount of evidence” provided by the Powleys and noted that there was no counter evidence from Mr Reynolds, but “simply a denial that they are liable or that they have done anything wrong.”
[235] See the list of documents at [24]
277.I repeat that Mr Reynolds and Mr Polleycutt had the opportunity to attend the hearing. They did not attend or participate by telephone. Their absence was intentional. They did not challenge the evidence provided by the Powleys. They decided not to provide evidence to the Tribunal. The transcript shows that Senior Member Ferguson read and inquired about aspects of the evidence. Her findings and orders were based on evidence, not on things that were imagined or manufactured. Mr Reynolds’ submissions on this point are rejected.
278.None of the grounds advanced by Mr Reynolds and outlined above have been established. Hence there is no basis on which this Tribunal could find that Mr Reynolds had any prospects of success on appeal in relation to the substantive findings made by Senior Member Ferguson which supported the orders that Mr Reynolds seeks to challenge.
Prejudice to the Powleys if leave is granted
279.In relation to the possible prejudice caused by the grant of leave to appeal out of time, Mr Reynolds submitted that the matter was “out of Jurisdiction” and “is of no prejudice other than a waste of public monies and prejudice to [himself] in having the stress and anxiety cause.”[236]
[236] Attachment C page 7
280.At the hearing of the present applications on 31 July 2019, Mrs Powley gave an eloquent and compelling description of the types of prejudice the Powleys have suffered as a consequence of the prolongation of the proceedings to this stage, and the further prejudice they would suffer if the decision of Presidential Member Daniel was set aside and leave was granted to appeal out of time against the decision of Senior Member Ferguson.
281.The Powleys have been prejudiced by the procedural delays in relation to the final disposition of their claim. Mrs Powley explained that she had commenced proceedings in the Tribunal on the understanding that the matter would be conducted in a quick, efficient and timely way with an appropriate outcome. The Powleys had been advised that all procedures were to be conducted in a timely manner so as to avoid delays, distress and unnecessary expense. At the time of the hearing before Senior Member Ferguson and with the delivery of a decision on that day, her expectations were met. What followed in the ACT Magistrates Court and the Tribunal negated that understanding. In summary, the Powleys sought to enforce the Tribunal’s orders in the Magistrates Court. She told the Tribunal at the directions hearing that there had been seven hearings in the Magistrates Court and Mr Reynolds had attended three of them.[237] By her account, Mr Reynolds did not attend the first three hearings and only appeared at the fourth when he faced possible arrest. He failed to supply adequate information and evidence, which again caused delay in proceedings and added expense to the public purse. He provided information on the day of the hearing, allowing the Powley is very little time to consider that information.
[237] Transcript of proceedings 14 June 2019 page 5
282.The financial cost to the Powleys can be stated briefly. They paid Mr Reynolds approximately $10,000 for a defective product. His work made a mess of their house. The contract was never completed. According to Mrs Powley, Mr Reynolds acknowledged to her at her home that he would not be paid by the Powleys. He had not sought the amount still owing under the contract. The Powleys had suffered not only from defective work that had damaged their home, and had voided their insurance policy. They had rectified the damage at their own expense, spending some $30,000 for replacement windows that are compliant and meet Australian standards. The delay in recovering the amount awarded to them by Senior Member Ferguson has caused financial difficulty.
283.The emotional cost of the proceedings since Senior Member Ferguson’s decision had been significant. The Powleys’ submission was that the matter has now been ongoing with the Tribunal for 14 months and the delays have caused “extreme stress and anxiety.” At the directions hearing, Mrs Powley said that the case had tuned into “an absolute utter nightmare.”[238] According to Mrs Powley, her life had been “turned upside down” since October 2017, and particularly in the 10 months since Senior Member Ferguson’s decision.[239] The case takes over her life and her “thinking time.” The present proceedings had been in her mind in the weeks leading to the hearing on 31 July 2019. Between her work as a nurse and a university student and her activities as a wife and mother, she has been thinking about these proceedings. As she put it, she is “beyond over it” but will “never give up.”[240]
[238] Transcript of proceedings 14 June 2019 page 5
[239] Transcript of proceedings 31 July 2019 page 99
[240] Transcript of proceedings 31 July 2019 pages 102-103
284.Mrs Powley expressly acknowledged that Mr Reynolds had been through a hard time with his sick mother in 2018. As a nurse, Mrs Powley understands that. But she has also faced challenges in the various stages of the proceedings as a self-represented litigant who had to comply with the Tribunal’s directions. She had to present the case as an applicant and then as a respondent to Mr Reynolds’ proceedings.
285.Mrs Powley submitted that the way Mr Reynolds has proceeded in the Magistrates Court and the Tribunal makes a mockery of the justice system and makes the Tribunal “look like a bit of a joke.” By her account, seven members of the Tribunal had been involved in the proceedings and Mr Reynolds says that all seven are wrong in their decisions. Although she acknowledged that Mr Reynolds has the right to appeal, he had been given chances repeatedly to contest decisions and this process “has got out of hand.” Mr Reynolds had had “so many bites of the cherry” but appears not to understand the implications of his actions for others.[241]
[241] Transcript of proceedings 31 July 2019 pages 99, 102-104
286.Mr Reynolds offered no response to Mrs Powley’s oral submissions.
287.There is no doubt that the Powleys have suffered prejudice by the delay in the enforcement of Senior Member Ferguson’s orders, and that they would be prejudiced by the grant of leave to appeal against those orders.
Interests of justice
288.Finally, it is appropriate to consider whether the demands of justice compel the grant of leave to appeal out of time and whether, if the application is refused, there will be a miscarriage of justice.
289.Mr Reynolds submitted, in effect, that the rigid enforcement of time limits could be “instruments of injustice.” In his submission, the Tribunal has sought to further prejudice matters by using legislative time limits for that purpose. Consistent use of such time limits:
might only serve to limit accountability, pervert the course of justice, discriminate, and discriminate to serve a higher directive or reverent power. That is not such a power expected by the people in the appointment of a person to fulfil a public position to prescribe the legislation and Law made by the people for all people.[242]
[242] Attachment C page 4 at xi
290.In support of that submission, Mr Reynolds repeated earlier contentions that the Tribunal had “determinately and discriminatively forced strict compliance with rules against” him this while “loosely, carelessly and or wilfully eliminated” the Powleys’ compliance to rules “via discretion not afforded” to him.[243] Those contentions were not correct.
[243] Attachment C page 5
291.Later in Attachment C he wrote:
(a) Above all else: court to determine there has not been and will not be in refusing out of time appeal; a miscarriage of justice (ensure justice can be done and majority of cases). That is the overriding consideration. That appears to have gone un-considered in these matters as a whole from their inception. Un-feted use of ‘discretionary powers appears to have delivered and become an instrument of injustice caused in ACAT matters.
(b) Applications for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim.
(i)Facts of substantial delay and wasted costs, concerns of case management, assume importance on an application for leave to amend;
(ii)Court should recognise the effects of delay, not only to the parties to the proceedings in question, but upon the Court and other litigants.[244] (errors and emphasis in original)
[244] Attachment C page 8
292.Those submissions failed to recognise the importance given by courts and tribunals to the use of such time limits:
(a)to facilitate the finalisation of matters in dispute before them; and
(b)to ensure that parties to particular proceedings and also the many other parties who have applications before the Tribunal, have an opportunity to have their matters heard and determined in a timely manner.
293.The submissions also seemed to proceed on the basis that time limits are enforced without regard to surrounding circumstances. As the preceding lengthy consideration of Mr Reynolds’ numerous submissions indicates, this Tribunal has regard to a range of circumstances in deciding whether the otherwise strict time limits should be varied in a particular case.
294.Mr Reynolds’ submissions also referred to the “very clear and apparent” waste of the Tribunal’s time and costs.[245] Paragraph 1.1.3.2.2.3 of the Notice of Appeal considered by Presidential Member Daniel referred to:
the waste of limited public resources by ACAT intentionally ignoring jurisdiction and inherent costs that will never be recovered as a direct result. This contradicts the very precedent of Mossop ASJ and similar words of Burns J regarding the efficient and proper conduct of civil litigation.[246]
[245] Attachment B page 14
[246] These submissions did not cite the judgments in which those observations were made
295.Later, the same submission stated:
Applicants with such “Dirty hands” and abusive character of litigious conduct, if permitted, would lead a right-thinking person to perceive the system administration of civil justice to be inefficient, careless about the inappropriate in currents of cost caused to Patrick [Reynolds] and profligate in the application of public monies.
296.In Attachment C he contended that the Tribunal’s actions in the matter have been “a waste of the public resources and time,” particularly with setting a matter down for hearing before the issues were identified and other exercises of discretion “to administer this and other matters before in the use of and prejudicial funding of scarce public funds to achieve outcomes in individual cases.”[247] In allocating time and resources for appeals, and in exercising its discretion in case managing individual cases, the Tribunal should apply “at all cost, a least cost to the public purse Key Performance Indicator.”[248] Yet he went on to submit that the public interest in the use of public funds to administer any matter before the Tribunal is “strong reason” to support the discretionary grant of leave to appeal and/or the appeals themselves.[249]
[247] Attachment C page 1
[248] Attachment C page 4
[249] Attachment C page 6
297.In the circumstances of this case, it seems at best disingenuous for Mr Reynolds to make submissions about the waste of public resources incurred in these proceedings, and to lay the blame for that cost on the Tribunal and the Powleys, and then suggest that it would be in the public interest for additional resources to be devoted to an appeal hearing.
298.The costs of proceedings to date have been significant, particularly in light of the subject of the proceedings and the amount in dispute. These costs can be measured in many ways, not just the time, effort and expense to the parties. Members and officers of the Tribunal have spent substantial periods of time in relation to hearing and deciding consecutive applications by Mr Reynolds that lacked merit. That included the time spent considering, deciphering and analysing submissions that repeatedly and at length traversed issues that had been decided against Mr Reynolds. As the Appeal Tribunal stated in Commissioner for Social Housing v Williams:
... There is no doubt that dealing with applications for extensions of time to lodge appeals (as well as analogous applications for variations of directions in relation to matters proceeding to a hearing) takes time as well as member and other resources that could be used (and in some cases have already been allocated) for other substantive matters. In other words, the amount of attention required to deal with matters such as this necessarily displaces resources that could be used to deal with other aspects of the Tribunal’s work.[250]
[250] Commissioner for Social Housing v Williams [2017] ACAT 53 at [20]
299.In that context, Mr Reynolds was correct to identify the waste of limited public resources incurred in these proceedings. He and Mr Polleycutt might reflect on the extent to which their actions and inaction caused much of that waste.
300.The detailed chronology set out earlier in these reasons for decision and the extensive submissions quoted, paraphrased or cited elsewhere in these reasons lead this Tribunal to the same conclusion as expressed by Presidential Member McCarthy on 25 October 2018,[251] namely that Mr Reynolds has, by his conduct, made clear that he had no intention to defend the substance of the claim brought against him and instead sought to avoid the claim. As the present set of reasons demonstrate, again he has been unsuccessful. The proceedings must come to an end.
[251] Powley & Anor v Reynolds [2018] ACAT 103 at [44]
301.Not only would there be no miscarriage of justice in refusing to allow his applications but there would be a miscarriage of justice to grant the relief he seeks. There should be no further delay in giving effect to the orders made by the Tribunal on 10 September 2018.
Conclusion
302.Mr Reynolds has failed to convince this Tribunal in relation to any of the grounds on which leave to appeal out of time could be granted. He has not provided a satisfactory reason for the significant delay in lodging an appeal against the orders of Senior Member Ferguson. He has not provided any basis for concluding that, if leave were granted, he would succeed on appeal because of procedural defects leading to those orders or because of errors of fact or law in Senior Member Ferguson’s reasons for decision. The Powleys would suffer further prejudice if leave were to be granted. There would be no miscarriage of justice if the application for leave is refused.
303.For those reasons, the application for leave to appeal out of time against the orders made by Senior Member Ferguson on 10 September 2018 must be dismissed.
The decision of Presidential Member McCarthy of 23 October 2018
304.Mr Reynolds sought leave to appeal out of time in relation to Order 2 made by Presidential Member McCarthy on 23 October 2018, dismissing Mr Reynolds’ application to have Senior Member Ferguson’s orders set aside. Reasons for that decision were published on 25 October 2018. A summary of that decision and Order 2 are set out earlier in these reasons for decision.[252]
[252] See [52]-[56]
305.Mr Reynolds submitted that:
(a)the “quasi-appeal” was heard without access to documented reasons and, as a direct result, was not compliant with the considerations of the relevant facts and law in its entirety, and the reliance on another Tribunal member’s self-opinion and prejudicial selection of possible facts and/or the possible use or determination of the relevant application of law could not be considered fair, impartial, relevant;
(b)the Tribunal decision maker in the “quasi-appeal” appears to have used discretionary powers to undermine Mr Reynolds in that matter from any reasonable assistance to participate in the matter before the Tribunal, denying him to authorise a power of attorney, and/or disregarded Mr Reynolds’ state of health to prejudice him; and
(c)the decision-maker in the “quasi-appeal” did not provide his reasons for decision until 25 October 2018, and had the Application for Appeal submitted by Mr Reynolds on 3 December 2018 and stamped on 4 December 2018.
306.Those submissions cover matters dealt with earlier, and in some respects lacked a factual foundation. Given that Presidential Member McCarthy dismissed the Powleys’ application for Mr Polleycutt be removed as Mr Reynolds’ representative, it is not clear what Mr Reynolds meant by his statement in (b) above. Given that Presidential Member McCarthy published his written reasons two days after the orders were made, it is not clear why Mr Reynolds would seem to be suggesting a delay on the Tribunal’s part (see (c) above).
307.That application for leave to appeal is rejected. The reasons can be stated shortly. First, Presidential Member McCarthy’s decision was an interlocutory decision and, for the reasons set out earlier,[253] is not subject to appeal. Accordingly, there would be no benefit in granting leave to appeal out of time.
[253] See [106]-[115]
308.Second, Mr Reynolds gave the following explanation for his delay in appealing Presidential Member McCarthy’s decision on 23 October 2018.
So this is one of three cases. He provided written reasons for another case in … the end of October, I think it was at 28 or something like that. I can’t remember. And then the third case, the third of the three things, he didn’t give his written reasons until the middle of January as far as I remember. … The three cases were heard at the same time. … And we then had to formulate how we’re going to appeal his decisions as he wasn’t going to allow us the ruling, the decisions. So it took too long. We took too long to do it. It’s the excessive amount of having to – of stuff to do. … In relation to those three separate appeals lodged at the same time, and the first appeal – because he didn’t join all of the matters. There was – so there had to be three separate appeals. We appealed against each of the decisions and all of the decisions by Member McCarthy and I asked for them to be set aside and reheard. [254]
[254] Transcript of proceedings 31 July 2019 page 87
309.The fact that Mr Reynolds made a tactical error in not appealing the decision within the 28 days, when he had full written reasons that were provided almost immediately after the orders were made, is an insufficient reason for granting him leave to appeal out of time.
310.Third, Mr Reynolds provided no substantive reasons as to why (assuming an appeal was possible) leave to appeal should be granted:
(a)He did not identify any reasons for appealing beyond those put before Presidential Member Daniel who considered his arguments on 15 April 2019 and dismissed his application for an extension of time to appeal those orders. For reason set out above, I have rejected Mr Reynolds application to appeal against Presidential Member Daniel’s decision.
(b)Having read Presidential Member McCarthy’s reasons for decision, I am not persuaded that he made any errors that would provide grounds for a successful appeal if leave were to be granted.
(c)Having already considered Mr Reynolds’ detailed submissions of more general application about proceedings before the Tribunal, I have concluded that there is nothing in those submissions that contain appropriate explanations for the delay in appealing that decision, or would overcome the prejudice to the Powleys if leave to appeal were granted.
311.For those reasons, Mr Reynolds’ application must be dismissed.
Other relief sought by Mr Reynolds
312.The application for appeal filed on 12 July 2019 also sought:
(a)to appeal Directions 1, 2, and 3 made on 14 June 2019 in relation to these proceedings;
(b)a stay of all orders and matters in this matter (XD 334/2018); and
(c)the joining of the three matters XD 22/2018, XD 334/2018 and XD 800/2018.
These three matters can be dealt with briefly.
313.First, putting to one side whether there is any legal right to appeal directions, the grounds for appealing the directions made on 14 June 2019 are misconceived. They start by stating that the directions are “appealed in the first right” because “there are no recording of reasons for decisions.” However, the reasons for making the directions were given on the day and are set out in the transcript of those proceedings. Mr Reynolds and Mr Polleycutt were present and participated in the directions hearing.
314.The grounds also repeat that there are decisions of the Tribunal that Mr Reynolds was determined to be legally incapacitated. However, he asserts, the Tribunal was “confused; ill-conceived or chose to ignore” those decisions and reasons for decision and “without concern carried forward to force to deal with matters” ignoring “his health and sickness ACAT have scribed on record.” As a consequence of those steps taken by this Tribunal, Mr Reynolds stated he:
feels the prejudice created in the tribunal against his matters and setting of time tables without consideration of his abilities/disabilities and requirements for representation prejudices him in any decision as an outcome of the process.
315.The misconceived assertions about decisions of the Tribunal about Mr Reynolds’ alleged incapacity are dealt with earlier[255] and the reasons for rejecting those assertions need not be repeated. As noted below, the directions were made in consultation with the parties and without objection by Mr Reynolds.
[255] See [199]-[218]
316.The ground about Mr Reynolds’ power of attorney is incomprehensible. In any case, there was no issue at the directions hearing about the power of attorney.
317.More significantly, it is difficult to see the purpose of the appeal against the directions or accept the grounds for it. The directions were made to facilitate the hearing of Mr Reynolds’ application. These are not proceedings brought by others against him. He is the applicant, not the respondent. He has a right to be heard as do the other parties. The timetable gave sufficient time to prepare the documents necessary for each party to be aware of the other’s case and for the hearing to proceed in an orderly way. In addition, the directions facilitated Mr Reynolds making an application for leave to appeal out of time against the decision of Senior Member Ferguson, which is the decision ordering him to pay money to the Powleys and which, at that date, it appeared was not the subject of an appeal.
318.Further, this Tribunal also took the unusual step of providing each party with a copy of the Appeal Tribunal’s decision in Commissioner for Social Housing v Williams [2017] ACAT 53 so that the parties would be aware of the principles that the Tribunal must follow when considering an application for leave to appeal out of time.
319.Mr Reynolds did not dispute the timetable nor the opportunity afforded to him to seek leave to appeal the substantive decision.
320.Not only was each party to these proceedings present at the directions hearing. Mr Polleycutt also appeared with Mr Reynolds, and asked the Tribunal for dates “similar to last time,” that is, at earlier directions hearings for other matters.[256] When asked if a hearing on 31 July 2019 was suitable Mr Reynolds said “That’s fine.”[257]
[256] Transcript of proceedings 14 June 2019 page 9
[257] Transcript of proceedings 14 June 2019 page 13
321.For those reasons, the appeal against the directions made on 14 June 2019 is dismissed.
322.Second, the application to stay all orders and matters is refused. The orders in each matter were the subject of separate proceedings, and separate orders were made in relation to these and the other proceedings.
323.Third, the application for the joining of matters XD 22/2018, XD 334/2018 and XD 800/2018 was not pressed at the hearing. In any case, it is too late. The matters have never been joined in one proceeding. Each has been considered separately and, with the orders made in this case, the Tribunal proceedings in respect of all of them are concluded.
Concluding observations
324.Three concluding observations are appropriate. Given the similarity of this case with the proceedings in Reynolds v Verma & Anor and Reynolds v Chessell & Anor, it is appropriate to restate (with minor modification) the observations made at the end of the reasons for decision in those cases.[258]
[258] Reynolds v Verma & Anor [2019] ACAT 101 at [311]-[318]; Reynolds v Chessell & Anor [2019] ACAT 119 at [255]-[264]
325.First, the reasons for decision in this case are unusually long and detailed, particularly given the nature of the issues before this Tribunal. As will be apparent from the reasons, their length was primarily a response to the wide-ranging submissions made by Mr Reynolds which were lengthy, often unclear and sometimes incomprehensible. The submissions related to separate proceedings before differently constituted Tribunals. The matters being argued involved the present Tribunal exercising the powers of an Appeal Tribunal in relation to some matters, and the powers of a Tribunal at first instance in relation to others. The complex and at times confusing series of events which led to the hearing of these matters did not facilitate the speedy disposition of the case.
326.Having paid close attention to what both parties provided, the issues to be decided became clear enough. In the end, the decisions and the reasons for them were able to be expressed relatively briefly.
327.The case illustrates not only the difficulties confronted by unrepresented parties and the Tribunal in dealing with the types of issues raised by these proceedings, but also illustrates how those issues can be compounded if one party engages someone to assist them who not only does not progress their case but confuses it and introduces unnecessary (and ultimately detrimental) procedural complexity.
328.Second, there is a public interest in the finality of litigation. It is clear from this case that Mr Reynolds seems intent on using every procedural option available to him to try to avoid confronting the real issues in the case, and the orders against him. His manifest tactic is to use the Tribunal’s processes for the purposes of avoidance and delay.
329.In that context, I note that a differently constituted Appeal Tribunal wrote in Hussain v Farhmand:[259]
… it may seem a curious feature of this case that the legislation permits more than one application for leave to appeal out of time to be made. This may be to enable justice to be done in the rare cases where new and significant evidence comes to light that was not previously known about or available. However, the lack of an express limit also provides the potential for justice to be delayed and denied.[260]
To be properly brought, any second or subsequent application for leave to appeal out of time cannot merely repeat or rely upon arguments that have already been heard and ruled upon in an earlier application for leave. In our view, an application for leave to appeal of that kind, or brought for an ancillary purpose, amounts to an abuse of process.[261]
[259] Hussain v Farhmand [2017] ACAT 107 at [41], [42]
[260] Jago v The District Court of New South Wales & Ors[1989] HCA 46
[261] Rogers v The Queen[1994] HCA 42 at [16]
330.The results in this case and the reason for it demonstrates the adverse consequences for applicants (in this case the Powleys) and the diversion and use of substantial Tribunal resources when dealing with procedures with such manifest lack of merit.
331.Third, and more generally, these proceedings demonstrate the way in which appeals against a range of orders made and directions given by the Tribunal can unnecessarily prolong the resolution of applications to the Tribunal and frustrate the object of the ACAT Act that applications to it are resolved “as quickly as is consistent with achieving justice” while ensuring that “the decisions of the tribunal are fair.”[262] They also cut across the obligation on the Tribunal, when exercising its functions under the ACAT Act, to ensure the procedures of the Tribunal are “as simple, quick, inexpensive and informal as is consistent with achieving justice” while observing “natural justice and procedural fairness.”[263]
[262] ACT Civil and Administrative Tribunal Act 2008 section 6
[263] ACT Civil and Administrative Tribunal Act 2008 section 7
332.As noted earlier, there is a real question whether the Tribunal has power to deal with a range of applications about interlocutory orders. There are two relatively recent decisions of Appeal Tribunals (one delivered after the hearing of this case) to the effect that no appeal lies from interlocutory decisions of the Tribunal.[264] Persuasive as they are, those decisions are not binding on other members of the Tribunal. Having regard to the circumstances outlined in detail above in these proceedings, as well as the circumstances giving rise to those decisions, it might be appropriate for the Legislature to consider whether the ACAT Act should be amended to clarify which decisions can, and cannot, be the subject of internal appeals.
Orders
[264] GP v Mackenzie & Ors [2018] ACAT 96; Walls v Coutts [2019] ACAT 104
333.For the reasons given above:
7.The application for leave to appeal out of time against Orders 1, 2, and 3 made by Senior Member Ferguson on 10 September 2018 is dismissed.
8.The application for leave to appeal out of time against Order 2 made by Presidential Member McCarthy on 23 October 2018 is dismissed.
9.The appeal against Orders 1 and 2 made by Presidential Member Daniel on 15 April 2019 is dismissed.
10.The appeal against the directions of the Tribunal made on 14 June 2019 in relation to these proceedings is dismissed.
11.The application for the stay of all matters in matter XD 334/2018 is dismissed.
12.The application for the joining of matters XD 22/2018, XD 334/2018 and XD 800/2018 is dismissed.
………………………………..
President G Neate AM
HEARING DETAILS
FILE NUMBER:
AA 17/2019
PARTIES, APPLICANT:
Patrick Leo Reynolds
PARTIES, RESPONDENT:
David Powley
Louise Powley
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
President G Neate AM
DATE OF HEARING:
31 July 2019
22
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