Reynolds v Verma and Anor (Appeal)
[2019] ACAT 101
•19 November 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
REYNOLDS v VERMA & ANOR (Appeal) [2019] ACAT 101
AA 10/2019 (XD 800/2018)
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 Tribunal – factors to be considered – prima facie time limits must be obeyed – length of delay – reasons for delay – merits of proposed appeal – prejudice to respondent – requirements of justice
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 8, 18, 19, 26, 32, 48, 53, 59, 60, 61, 71, 79, 81, 112
Powers of Attorney Act 2006 s 63
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) rr 8, 14, 22
Court Procedures Rules 2006 Part 2.18 (Enforcement)
Cases cited: Commissioner for Social Housing v Williams [2017] ACAT 53
Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority [2015] ACTCA 56
GP v Mackenzie & 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
Krown Living Pty Ltd v Lando [2016] ACAT 149
Legal Practitioner v Law Society of the ACT [2016] ACTSC 203
Urbaniak-Bak v Council of the Law Society of the ACT & “RA” [2016] ACAT 156
Rogers v The Queen [1994] HCA 42
Superal-Wallace v Indypendent Pty Ltd & Anor [2016] ACAT 144
Verma & Anor v Reynolds [2018] ACAT 89
Verma & Anor v Reynolds [2019] ACAT 4
Verma & Anor v Reynolds(No 2) [2019] ACAT 19
Tribunal: President G Neate AM
Date of Orders: 19 November 2019
Date of Reasons for Decision: 19 November 2019AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 10/2019 & XD 800/2018
BETWEEN:
PATRICK LEO REYNOLDS
Appellant/Applicant
AND:
KAVITA VERMA
First Respondent
WILLIAM REES
Second Respondent
TRIBUNAL: President G Neate AM
DATE: 19 November 2019
ORDER
The Tribunal orders that:
1. The appeal against the decision of Presidential Member Daniel on 8 April 2019 is dismissed.
2. The applications for an extension of time to appeal against the decision of Presidential Member McCarthy dated 23 October 2018 and the decision of Senior Member Anforth dated 7 December 2018 are refused.
3. The appeal against the directions of the Tribunal dated 14 June 2019 is dismissed.
………………………………..
President G Neate AM
REASONS FOR DECISION
Introduction
1. The present case is one of three similar proceedings in which Patrick Reynolds seeks to overcome orders made by different members of the ACT Civil and Administrative Tribunal (the Tribunal) that he pay homeowners, including Kavita Verma and William Rees, sums of money in relation to his installation of windows and doors at their homes.
2. The present case involves two applications by Mr Reynolds:
(a) an application to appeal against the decision of Presidential Member Daniel on 8 April 2019 dismissing Mr Reynolds’ application to adjourn the hearing on that date, and dismissing his application for an extension of time to lodge an appeal against the decision of Senior Member Anforth on 7 December 2018; and
(b) an application for leave to appeal out of time against:
(i) the decision of Presidential Member McCarthy on 23 October 2018; and
(ii) the decision of Senior Member Anforth on 7 December 2018 that Mr Reynolds pay the applicant $25,161.99 immediately.
3. The content of those applications can be ascertained by reading the following applications lodged by Mr Reynolds:
(a) an application for appeal dated 15 April 2019;
(b) an application for appeal dated 2 May 2019;
(c) an application for appeal dated 14 June 2019;
(d) an application for interim and other orders lodged on 5 July 2019, together with a draft application for appeal; and
(e) an application for appeal lodged on 12 July 2019,
together with the transcript of the directions hearing before the Tribunal as presently constituted on 14 June 2019 and the directions made by this Tribunal on that day.
4. In the application for interim and other orders lodged on 5 July 2019 and the application for appeal lodged on 12 July 2019, Mr Reynolds also appealed against the directions made by this Tribunal on 14 June 2019.
5. In response, Ms Verma and Mr Rees submitted that the Tribunal should:
(a) dismiss the application for leave to appeal out of time;
(b) dismiss the application for leave to appeal lodged on 15 April 2019;
(c) issue an order under section 32(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) to:
(i) refuse to hear the application;
(ii) dismiss the application; and
(iii) direct Mr Reynolds to not make a subsequent application to the Tribunal without the leave of the Tribunal.
Conduct of the hearing
6. The following five documents were attached to the applications lodged by Mr Reynolds on 5 July 2019:
(a) a typed document of 13 pages (Attachment A) which commences with a statement that the Supreme Court is asked to “provide legal determination to assist” the Tribunal, and includes 75 questions (apparently addressed to the Supreme Court) in clusters relating to one or all of the three cases, before referring to specific issues raised by Mr Reynolds in relation to the application for leave to appeal out of time, some of which relate to other proceedings of a similar nature brought by Mr Reynolds (and most of which relate to this application);
(b) a typed document of 17 pages concerning questions of law and fact in relation to the Verma and Rees proceedings as well as other proceedings of a similar nature brought against Mr Reynolds by different applicants which are the subject of separate proceedings before the Tribunal as presently constituted (Attachment B);
(c) a typed document of eight pages of submissions concerning the present applications (and the applications in relation to proceedings involving other respondents) (Attachment C);
(d) a handwritten document of one page listing five decisions of the Tribunal between 4 October 2018 and 14 June 2019 that are the subject of the present applications (Attachment H); and
(e) a typed document of five pages in relation to the present application (Attachment I).
7. In response to (but not full compliance with) Direction 2 made on 14 June 2019, Mr Reynolds also provided Ms Verma, Mr Rees and the Tribunal with a typed document of two pages identifying what he said were errors of law or fact that made by the Tribunal on 8 April 2019 and making submissions in relation to them, and noting that this was also “Appeal President Neate 14/6/19.”
8. In compliance with Direction 3, Ms Verma and Mr Rees provided Mr Reynolds and the Tribunal with a covering letter outlining their response to Mr Reynolds’ statements and a typed document of four pages containing more detailed submissions in reply to Mr Reynolds’ documents.
9. In their written submissions, Ms Verma and Mr Rees stated that Mr Reynolds’ submission:
… uses English in an idiosyncratic manner, and as written, we found it incomprehensible, devoid of logical meaning and unclear (for example, see references to the Supreme Court within the submission).
However, in efforts to infer meaning from the submission, we have attempted to provide our written submissions in accordance with Direction 3.
10. At the hearing on 6 August 2019, Mr Reynolds took the Tribunal through Attachment A and Attachment B, identifying which questions and submissions did not relate to the present proceedings. That removed a substantial amount of written material from consideration in these proceedings. Mr Reynolds also explained the meaning or purpose of some of the questions in Attachment A and the submissions in Attachment B.
11. During the morning of the hearing, Mr Reynolds indicated that he was unwell with high blood pressure, a headache and other symptoms. The hearing was paused or adjourned briefly to accommodate him. By 11:22am, having provided detailed information about his written submissions, he indicated that he was too unwell to continue and invited the Tribunal to continue to hear and decide the matter by reference to his written material.
12. After a break, the hearing resumed in Mr Reynolds’ absence. The Tribunal attempted to contact him by telephone and left a message on his answering service, noting his absence and inviting him to contact the Tribunal. No message was received in response.
13. As a consequence of Mr Reynolds’ absence, it was not possible for Ms Verma and Mr Rees or the Tribunal to obtain from him clarification about some other aspects of his written submissions. Ms Verma and Mr Rees, however, responded to some of the questions and issues raised in Mr Reynolds’ written submissions and attempted to assist the Tribunal to ascertain the meaning of parts of Mr Reynolds’ documents as well as providing statements, submissions and references to documents which, in their submission, answered questions asked by Mr Reynolds or refuted some of his submissions.
Chronology of decisions
14. In order to understand some of the submissions made by Mr Reynolds, and make appropriate responses to them, it is necessary to set out in some detail the history of the proceedings including the circumstances surrounding, and the content of, the decisions of differently constituted Tribunals on 23 October 2018, 7 December 2018 and 14 June 2019.
15. On 20 June 2018, Ms Verma filed a civil dispute application in the Tribunal claiming from Mr Reynolds the sum of $24,850.00 and $150.00 in filing fee, together with interest in the sum of $161.99 (calculated between 9 May 2018 and 20 June 2018). In summary, the claim was made on the basis that Ms Verma and Mr Rees engaged Mr Reynolds for the installation of double glazing windows, doors and sliding door at their residence. They contended that the windows and doors installed by him were not compliant with Australian standards and the installation was of poor quality. Among the statements made in the application were allegations that the work was undertaken without relevant insurances and safety checks in place, including no Asbestos Awareness card, despite undertaking work on a property built in the 1960s and later confirmed to contain asbestos in the eave sheeting. At the date of filing, Mr Reynolds had been paid $28,000.00 of the quoted $35,000.00 for the work. Ms Verma sought compensation to the value of $25,000.00 (the limit of the Tribunal’s jurisdiction) “to contribute to the reparation works required, for which we have been quoted around $50,000-$60,000.” Attached to the application were various documents and photographs in support of the claim.
16. On 22 June 2018, the Tribunal wrote to Mr Reynolds advising him of the application and that a response must be filed by him by close of business on Tuesday, 24 July 2018. A response form was enclosed and Mr Reynolds was advised that it “should be filed with the Tribunal by close of business on the date specified.”
17. On 26 June 2018, Mr Reynolds executed a general power of attorney appointing Eric Polleycutt to appear on his behalf and represent him in the proceedings before the Tribunal, and to engage in negotiations in relation to the proceedings.
18. On 23 July 2018, Mr Reynolds sent an email to the Tribunal from Mr Polleycutt referring to the power of attorney and stating “Please curtail all correspondence as requested to further stall addressing issues and further causing Mr Reynolds family further duress UN-necessarily.” Attached to that email was a document in which the respondent sought orders including dismissing the application for abuse of process, or dismissing it because the claim in total was beyond the Tribunal’s jurisdiction. It also included a chronology of events in relation to the contract between Ms Verma, Mr Rees and Mr Reynolds.
19. Mr Reynolds did not file a response to the application by close of business on Tuesday, 24 July 2018.
20. In an email to Mr Reynolds at 10:49am on 25 July 2018, the Tribunal registry acknowledged receipt of the email and document but advised that the registry could not action his request at this stage. If he wanted to seek the orders stated in his document he was asked to file an interim application stating clearly the orders sought and attaching documents as supporting evidence. He was also advised to file a response to the application:
because if no response has been received, the applicant may lodge an Application for Default Judgment with the Tribunal and a judgement may be entered against you. Therefore it is in your best interest to lodge your response as soon as possible. It is sufficient to simply indicate on the response form whether you are disputing the claim, or admitting liability in part or in whole.
Mr Reynolds was invited to contact the Tribunal by return mail or by telephone if he had any questions.
21. At 12:57pm on 25 July 2018, a message from Mr Polleycutt was sent to the Tribunal and Ms Verma from Mr Reynolds’ email address stating, among other things:
As disclosed to all parties and Tribunal as the application is not within the jurisdiction of the Tribunal, and the Respondent specifically denies the possibly intentional misrepresentation of one applicant and in the body that another applicant appears to still be intending to double dip beyond the jurisdictional limit NO FORMAL application can be dealt with by the Tribunal, as such no reasonable basis to require a RESPONSE unless the Tribunal wishes to ignore the issues raised, breaching its jurisdictional limits making orders defined in any case on appeal.
22. He continued by referring to the “facts of transactions in the matter to be considered if a Proper and within jurisdictional limits is applied for to enforce the contract the Applicant breached between the Two persons in receipt of services and Mr Reynalds” (errors in original). He suggested the applicant had attempted to mislead the Tribunal “into carelessly ignoring the contents of the application and breaching its jurisdictional limits, enlivening appeal.” He also stated that “Any application for default judgement will be strongly refuted and defended and appealed in the proper cause.”
23. On 26 July 2018, Ms Verma sent the Tribunal by email an attached application for default judgment. She noted in her email to the Tribunal that neither Mr Reynolds nor Mr Polleycutt had chosen to comply with the registry’s instructions on 25 July 2018 to lodge their response in accordance with the Tribunal’s process.
24. The application for default judgment was stamped on 27 July 2018. It claimed $24,850.00 and $150.00 for the filing fee together with interest calculated from 9 May 2018 in the sum of $161.99. The total amount of the claim was $25,161.99.
25. By email from Mr Reynolds’ email address on Friday, 27 July 2018 to the Tribunal and Ms Verma, Mr Polleycutt asked, among other things, whether the jurisdictional matter had been determined in chambers and, if not, when any hearing “on that pivotal issue” was listed.
26. On 31 July 2018, Senior Member Robinson made an in chambers order listing the matter for a jurisdictional hearing on Friday, 17 August 2018 and requiring Mr Reynolds “to file and give to the applicant any material to be relied upon at the jurisdictional hearing and a brief submission setting out the basis for the objection by Friday 10 August 2018.” On 8 August 2018, Deputy Registrar Barry vacated that hearing date and listed the jurisdictional hearing for Wednesday, 22 August 2018.
27. By email dated 10 August 2018, Mr Reynolds provided to the Tribunal and Ms Verma written submissions and a copy of the contract of sale and installation with Ardglass Windows (Mr Reynolds’ trading name) dated 20 June 2017.
28. On 17 August 2018, Mr Reynolds executed a general power of attorney appointing Eric Polleycutt to appear on his behalf and represent him in the proceedings before the Tribunal, and to engage in negotiations in relation to the proceedings.
29. By email dated 21 August 2018, Mr Reynolds advised the Tribunal and Ms Verma that his mother was unwell and he had to return to Ireland on a flight booked for 21 August 2018. He wrote:
I note the hearing for tomorrow Wednesday; regarding the jurisdictional limits and or parties to the proceedings. I request the matters set out of the list in the short term to avoid any UN-necessary or avoidable disruption and expense.
In the alternative may the matter be determined in chambers or in my absence.
30. Neither Mr Reynolds nor Mr Polleycutt appeared at the hearing on 22 August 2018. Senior Member Robinson made ex parte orders including joining Mr Rees as the second applicant. With the agreement of the first applicant and consistently with Mr Reynolds’ alternative suggestion, Senior Member Robinson adjourned the jurisdictional issue to be determined in chambers, and stated that Ms Verma and Mr Rees would consider whether to commence these proceedings in the ACT Magistrates Court.
31. On 13 September 2018, Senior Member Robinson issued written reasons for her decision that the application for interim orders was dismissed and the matter be referred to a conference and evaluation on Friday, 5 October 2018.
32. In the reasons for decision, Senior Member Robinson held:
(a) by reference to sections 18 and 19 of the ACAT Act, that a claim for interest is to be disregarded when calculating the jurisdictional limit for a claim; and
(b) by reference to section 48 of the ACAT Act (which deals with Costs of proceedings), that costs are not part of the substantive claim but are reimbursement for the cost of bringing the claim and hence, if the applicant is successful, the Tribunal may also order the respondent to pay (or reimburse) the application fee.
33. Senior Member Robinson concluded by observing:
Ultimately, however, this issue is unlikely to arise in this matter in any practical way, because even in the event that the applicants are awarded the full damages claimed, and the application fee, their claim will only total $25,000 plus interest, which for reasons set out above, may be ordered pursuant to section 19 of the ACAT Act in addition to the substantive claim.
34. With an email dated 4 October 2018, Mr Reynolds sent to the Tribunal a copy of the submissions sent to the Tribunal on 10 August 2018.
35. On 4 October 2018, the Tribunal registry wrote to the parties advising the Tribunal had been notified that the respondent and his representative were not available to attend the conference, the conference date had been vacated, and the conference would be relisted.
36. By orders dated 4 October 2018, Senior Member Robinson listed the application for hearing on 7 December 2018 and gave directions for Mr Reynolds and Ms Verma and Mr Rees to provide material to each other and the Tribunal by specified dates, and the service of subpoenas by specified dates. Mr Reynolds’ address for service by post was care of Mr Polleycutt and at an email address.
37. An email from the Tribunal registry to the parties on 5 October 2018, attaching a copy of the directions, referred to discussions on 4 October 2018 in relation to the conference and evaluation not proceeding. The parties were advised that they would be required to attend the hearing or send an authorised person on their behalf, and that the Tribunal may make orders in the absence of the parties.
38. Later that day, the following email message was sent from Mr Reynolds’ email address in relation to the Verma and Rees application (XD 800 of 2018) and two other applications (XD 22 of 2018 Chessell and Chessell v Reynolds, and XD 233 [sic – 334 of 2018] Powley and Powley v Reynolds):
been trying to reply with completed interim applications since 21 September but they all bounce from your server?
Have requested stays on all cases. If Tribunal wishes to ignore request to hear all cases together or at the same time; or deal with issuies [sic] in Powley then I need to Lodge Appeal ASAP and request extension of time to do so.
39. The Tribunal registry replied to Mr Reynolds by email that afternoon, suggesting he lodge his application for interim or other orders either in person at the Tribunal’s front counter or by way of post. The email continued:
Please complete and lodge your application outlining the orders you are seeking, if required, please attach any relevant materials. Upon receipt, your application will be giving to a Tribunal Member or Registrar for consideration.
Prior to lodging your application for Interim or Other Orders, please note that all three matters; XD 22/2018, XD 334/2018 & XD 800/2018 are at different stages of their proceedings, accordingly please apply consideration to the best course of action in these circumstances. You may wish to consider making enquiries with the appeal section of the Tribunal on 6207 7426, in relation the requirements of an extension to file an Application for appeal if required as outlined below.
It should be noted, if you wish to apply for a stay of any of the proceedings, you must complete and lodge an application for Interim or Other orders. Until such application/s is lodged and considered, the matters will remain on their current course. (Errors in original)
40. On 17 October 2018, Mr Reynolds filed an Application for Interim or Other Orders in relation to the Verma and Rees matter, XD 800 of 2018. He sought orders including:
(a) the Orders of Senior Member Robinson of 4 October 2018 be set aside/dismissed;
(b) the Verma and Rees matter be joined with, or administered and heard at the same time as, XD 334 of 2017 [sic 2018] and XD 22 of 2017 [sic 2018];
(c) the “attachment” of specified persons;
(d) the provision of a copy of specified correspondence “if it exists” to Mr Reynolds;
(e) Mr Reynolds be granted access to Ms Verma’s and Mr Rees’ property to enable him (and accompanying professionals, witnesses and other support persons) to inspect and take photographs where the windows were installed;
(f) Ms Verma and Mr Rees to provide written authority to Mr Reynolds or the ACTPLA to allow Mr Reynolds to inspect the building file and relevant certification files for the property where the windows were installed including “the block and section numbers of the houses where windows were installed and signed by ALL current registered ACT LEASE HOLDERS on file records” (emphasis in original);
(g) the matter be listed for directions after a suitable period for inspections to occur and/or reports to be compiled; and
(h) other orders the Tribunal may consider reasonable.
41. Attached to the application were four documents, one each in respect of each matter and one in respect of all three matters.
42. On 18 October 2018, the parties were notified that the application would be heard on 23 October 2018.
43. Ms Verma, Mr Rees, Mr Reynolds and Mr Polleycutt attended the hearing before Presidential Member McCarthy. Having heard from the parties, he made the following orders:
1. The respondent’s application dated 9 October 2018 for an order that the orders of Senior Member Robinson made on 4 October 2018 be set aside is dismissed, meaning in particular that the applicants’ application dated 20 June 2018 remains listed for hearing on Friday, 7 December 2018 at 2:00 pm.
2. The respondent’s application for orders that Mr Mark Boyle, Ms Tracy Gramlick and Mr Leigh Wallis be joined as parties to the proceeding is dismissed.
3. The respondent’s application for an order that the applicants give consent for the respondent to inspect any building file held by the ACT Planning and Land Authority concerning properties where windows were installed is dismissed.
4. Mr Eric Polleycutt is removed as the representative of the respondent and Mr Eric Polleycutt must not take any further part in the proceeding.
44. Presidential Member McCarthy also noted that:
(a) Ms Verma and Mr Rees had agreed for Mr Reynolds, and only Mr Reynolds, to attend their premises on 24 October 2018 between 9:30am and 10:30am for the purpose, and only for the purpose, of inspecting the windows installed by Mr Reynolds; and
(b) the Tribunal would publish its reasons for decision.
45. The Tribunal registry sent the orders to each party by email on 24 October 2018.
46. On 24 October 2018 at 10.33 am Ms Verma sent an email to the Tribunal and Mr Reynolds advising that Mr Reynolds did not “show up” at the property to take photos, “nor did he communicate in any way to notify me that he would not be attending.”
47. On 3 December 2018, Mr Reynolds sent to the Tribunal three copies of an email which referred as its subject to the 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 Supreme Court in matter XD334/2018 Powley and Anor v Reynolds. Attached to another email was a document that appeared to be a notice of appeal to the Supreme Court in matter XD22 of 2018 Chessell & Anor 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. There was no attachment in relation to matter XD800 of 2018 Verma & Anor v Reynolds.
48. Each email message included the following:
Please see attached the notice of Appeal. Could you please:
1) Receipt correspondence;
2) Provide any procedural requirements to have filing fees remitted in the matter;
3) 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;
4) 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.
49. 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;
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.
50. 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.
51. Mr Reynolds did not provide an Application for Interim or Other Orders to seek leave to appeal out of time.
52. The hearing proceeded before Senior Member Anforth on 7 December 2018. Ms Verma, Mr Rees, Mr Reynolds and Mr Polleycutt attended the hearing. There was an initial discussion between Mr Polleycutt and Senior Member Anforth in which the Senior Member referred to the order that Mr Polleycutt was not allowed to take any further part in the proceeding. Mr Polleycutt seemed to suggest that he had not received the orders of 23 October 2018, then stated that those orders were under appeal. The Senior Member stated that “until they’re overturned on appeal they stand.” Mr Polleycutt stated “we can’t participate if that’s the way it is … So we are leaving until the appeal is done …” He continued, “So we are leaving without prejudice. If you make orders we’ll be appealing them because … that’s basically what we put in.”
53. The Senior Member suggested that Mr Polleycutt “just take a breath for a moment” and stated that the order says that he could not act or represent Mr Reynolds but did not say that he could not be present or that he could not give evidence as a witness. “So you can’t appear or you can’t play any part as a representative in the proceedings.” Mr Reynolds stated that he was not defending the matter himself. However the Senior Member suggested to him that he stay and participate.
54. Ms Verma advised Senior Member Anforth that both Mr Reynolds and Mr Polleycutt were in attendance at the hearing on 23 October 2018 and were advised, as were all the parties at that time, that Mr Polleycutt was not to be the representative. Written confirmation was sent to the parties on 24 October 2018. Mr Polleycutt continued to intervene, although the Senior Member stated that he was not interested in hearing from him and was bound by the order. The Senior Member advised Mr Reynolds that “if you leave under these circumstances I have to assume that you’re not interested and that there is no defence that you wish to put to the claim.” Mr Reynolds replied, “My opinion is I’m being prejudiced.” After further interjections from Mr Polleycutt and, to a lesser extent Mr Reynolds, the Senior Member said “You leave at your peril.” Mr Reynolds replied “Okay. Thank you.”
55. It appears that Mr Reynolds left at that point. Senior Member Anforth put to Ms Verma and Mr Rees the alternatives of the Tribunal:
(a) entering a default judgment for the $25,000 (which could be appealed); or
(b) adjourning the matter to another time to be fixed by the Registrar.
56. Mr Rees elected to have default judgment, and noted that Mr Reynolds had not provided any evidence or supporting documents. Senior Member Anforth said that he was satisfied, on the evidence before him (including expert reports), that there was more than a prima facie case in favour of Ms Verma and Mr Rees.
57. By order dated 7 December 2018, Senior Member Anforth ordered Mr Reynolds to pay Ms Verma and Mr Rees the sum of $25,161.99 immediately.
58. The order was sent to the parties on 12 December 2018.
59. On 13 December 2018, Mr Reynolds sent an email to the Tribunal and Ms Verma and Mr Rees in which, among other things, he:
(a) asked for a copy of the reasons for decision of the order made on 7 December 2018;
(b) asked that this email be formally recorded as a “request in support of any extension of time to file an appeal with [sic] 28 days;”
(c) noted that the Tribunal “can decide to take up to 3 months to provide reasons for orders” and stated that “the delays in filing appeals in my matters are out side of my control and in ACAT with-holding the information I am required to address I am again legally disabled and prejudiced from participating in this public funded process;”
(d) listed various concerns about Senior Member Anforth, including some about how he conducted the proceedings on 7 December 2018 and other concerns that seem to have no relationship to these proceedings.
60. On 9 January 2019, Presidential Member McCarthy published written reasons for his decision on orders made on 23 October 2018. The reasons were sent to the parties by email that day.
61. An email dated 10 January 2019 from Mr Reynolds’ email address (but with no name on the email) thanked the Tribunal for the reasons for decision and asked for information about quotes used in paragraph 28 of those reasons. The Tribunal registry sent a reply that morning.
62. An unidentified email with further questions about the reasons for decision was sent from Mr Reynolds’ address. A detailed email from the Tribunal registry to Mr Reynolds on 11 January 2019:
(a) confirmed the information provided to Mr Reynolds by email on 10 January 2019;
(b) advised that the reasons for decision were final and the Tribunal’s registry was unable to provide further assistance in relation to questions about the content of those reasons;
(c) invited Mr Reynolds to seek legal advice or assistance in relation to the decision, and gave contact details for free legal advice provided by the ACT Law Society and the ACT Legal Aid Office;
(d) provided a link to a Tribunal email address if he wished to make a complaint;
(e) asked Mr Reynolds to include a signature block indicating who is the author of future emails, and stated that, as Mr Polleycutt had been excluded as his representative, it would be inappropriate for Tribunal staff to communicate directly with Mr Polleycutt; and
(f) advised Mr Reynolds that, if he wished to authorise another person to correspond with the Tribunal registry on his behalf, he should file a new power of attorney.
63. By email to Mr Reynolds dated 25 January 2019, an officer of the Tribunal registry apologised for the delay in responding to his email messages 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, 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.”
64. That evening, in a long email to the Tribunal, Ms Verma and Mr Rees and others, Mr Reynolds raised various issues and made wide-ranging criticisms of different aspects of the Tribunal’s administration and “discourse.”
65. In a letter to Mr Reynolds dated 5 February 2019, the Acting Registrar of the Tribunal referred to Mr Reynolds’ January emails in relation to three matters, including the matter involving Ms Verma and Mr Rees. The Acting Registrar stated that it was “difficult to identify from your emails precisely what you are seeking. I assume you are still asking for clarification on the process, timing and cost of filing an appeal against a decision in the ACAT.” She recorded her understanding that Mr Reynolds was waiting for reasons for decision in the matter involving Ms Verma and Mr Rees (and a reserved decision in another matter), and advised that Mr Reynolds would be notified when the reasons and decision were available.
66. The letter continued to note that information about appeals had been provided to him in previous correspondence on several occasions, most recently in the email dated 25 January 2019, and that no fee for an appeal would be payable until leave to appeal out of time was granted. It reiterated that, as set out in the emails of 25 January 2019 and 3 December 2018, if Mr Reynolds wished to appeal a decision in the ACAT he would need to file an Application for Interim or Other Orders seeking leave to appeal out of time. He was advised that the Tribunal registry “will not take any further action in relation to these proceedings until such an application is received.”
67. On 5 February 2019, Senior Member Anforth published written reasons for his decision on 7 December 2018. A copy of those reasons was sent to each party by email and also by post to Mr Reynolds.
68. On 28 February 2019, Mr Reynolds filed in the Tribunal an Application for Interim or Other Orders in which he sought “leave to appeal orders suggested as possibly out of time to be heard in chambers ex party.” He also sought the set-aside of orders made on 23 October 2018 and a stay of proceedings.
69. Under the heading “Reasons for appeal” in the attached application for appeal he wrote “Reasons for appeal will be supplied when reasons for decision are available.” That statement appears surprising given that the reasons for decision were published on 9 January 2019 and, as noted earlier, there had been correspondence between the Tribunal and Mr Reynolds and/or his unidentified representative about aspects of the reasons for decision. However, the application for appeal was dated 3 December 2018 (before the reasons for decision were provided) and had not been updated.
70. Although the application related to the Verma and Rees case, it included a 13 page typewritten attachment comprising:
(a) an executive summary stating, among other things, that the Supreme Court was asked to “provide legal determination” to assist the Tribunal in answering various questions of law relevant to the decision on appeal, and the court was asked to confirm vary or set aside the Tribunal’s decision, and remit the case to the Tribunal to be heard and decided again;
(b) separate series of questions in relation to matter XD 334 of 2018 (Powley & Anor v Reynolds), XD 22 of 2018 (Chessell & Anor v Reynolds) and XD 800 of 2018 (Verma & Anor v Reynolds) at pages 1-5;
(c) a series of questions “involved for all three cases above” at pages 5-7; and
(d) issues and questions, and reasons for leave to be given, in relation to application for “out of time” at pages 7-13.
71. That document is the same as Attachment A in the present proceedings.
72. On 14 March 2019, the Tribunal registry sent to numerous addressees (including Mr Reynolds) a detailed response to three emails received from Mr Polleycutt (and sent to those numerous addressees) in the previous 24 hours. For present purposes it is appropriate to note only that the email stated that:
(a) despite arrangements being made for Mr Reynolds to inspect the three Tribunal files in which he was a party, he attended with Mr Polleycutt and, after discussion with Tribunal registry staff, both of them left the Tribunal without viewing the files;
(b) if Mr Reynolds wished to inspect the files on his matters, he might make arrangements with the registry staff for a time to do so;
(c) the registry staff had provided Mr Reynolds with procedural advice on completing and lodging an application for appeal, including an application for leave to appeal out of time; and
(d) Mr Polleycutt was advised that the registry would not be responding to further communication from him.
73. By notices dated 29 March 2019, the parties were notified of a directions hearing in relation to this application for appeal and a hearing in relation to the application for leave to appeal out of time to be heard on 15 April 2019.
74. By email to the Tribunal dated Monday, 1 April 2019, Ms Verma and Mr Rees requested that the date of the hearing be moved because, they said, they were unable to attend due to work commitments and they were unable to appoint a representative to speak on their behalf. They then listed dates that they were unavailable from the period 2 April 2019 until 26 July 2019. They also made statements in relation to:
(a) their “Vehement objection to Mr Reynolds attending our property;”
(b) the “Continued lack of any evidence and deliberate efforts to delay the core issues raised in our claim;” and
(c) “Removing Mr Polleycutt as a representative.”
75. On Thursday, 4 April 2019, the Tribunal registry sent an email to each party:
(a) reminding Ms Verma that any material provided to the Tribunal in relation to this matter must also be provided to the other party to the case and asking her to ensure that Mr Reynolds is included in all future correspondence with the Tribunal;
(b) asking Ms Verma whether she would be available to attend the hearing on 15 April by telephone;
(c) advising that the Tribunal “may be able to reschedule a hearing” to 8 April 2019 at 9:00am;
(d) asking both parties to provide their views “in regards to the above.”
76. Ms Verma replied by email that day confirming that she and Mr Rees were available to attend a rescheduled hearing on 8 April 2019, and stating that she would include Mr Reynolds in all future correspondence to the Tribunal. The registry replied to her email and asked Mr Reynolds to “please urgently advise your views in regards to moving the hearing” to 8 April 2019.
77. On Friday, 5 April 2019, Ms Verma and Mr Rees asked the registry whether the hearing would be rescheduled to the following Monday or not.
78. At 3:41pm on 5 April 2019 the parties were sent a written notice that the matter had been listed for Monday, 8 April 2019 at 9:00am. The covering email to the parties included the following:
To Mr Reynolds, the Tribunal attempted to seek your views with regards to the change of date on two occasions by email on 4 April 2019 and also attempted to phone you on two occasions today. A voicemail message was also left requesting a return call.
Should you be unavailable to attend in person on Monday, you are permitted to attend via phone instead. Please advise the Tribunal in writing if you would like to attend by phone and provide your best contact number.
79. At 1:38pm on Saturday, 6 April 2019 an unsigned email was sent from Mr Reynolds’ email address to the parties, the Tribunal and others (including the ACT Chief Minister and the Attorney General). It stated, among other things “I have been unwell; (assault in relation to associated matters before ACAT)” and that “given the lateness of your suggested amendment, without notice, would not appear to be reasonable.” It concluded:
Unfortunately, Attendance on Monday is not possible and I am not available to attend by phone. I object to the ex-party [sic] process and what appears preference of one party to another with no notice. Please identify how the Registry decision is to be reconsidered or procedural advice to have it objected to, under the circumstances above.
80. In an email sent only to the parties and the Tribunal at 8:44am on Sunday 7 April 2019, Mr Rees responded to that email and noted that Mr Reynolds had been asked on 4 April 2019 to confirm his availability for 8 April 2019. The correspondence with that request detailed the unavailability of Ms Verma and Mr Rees on 15 April 2019 and included a list of dates that they were unavailable for the next 14 weeks. He then noted not only that Mr Reynolds had not responded until after the close of business on Friday, 5 April 2019 but he had not made himself available for any of the other dates on which Ms Verma and Mr Rees were available. Mr Rees submitted it would seem “extremely unfair/prejudicial” for Mr Reynolds to push solely for 15 April 2019 knowing that Ms Verma and Mr Rees could not attend. He noted that, unlike Mr Reynolds, they had not missed or changed the hearing to that point. They referred to other occasions where Mr Reynolds had advised of his non-attendance out of business hours before the scheduled hearing. Furthermore, having been granted access to their property to take photographs at a nominated time, Mr Reynolds had not attended or responded to Ms Verma’s communications on the day. Mr Rees concluded, “As a result, we will attending the hearing as listed for 8 April 2019 at 9am as directed by the ACAT, and would encourage Mr Reynolds to attend, given that this is his appeal.”
81. The hearing proceeded before Presidential Member Daniel on 8 April 2019. Ms Verma and Mr Rees attended. Mr Reynolds was not present and was not represented. Presidential Member Daniel continued in his absence. The conduct of that hearing is considered in some detail later in these reasons for decision.
82. After that hearing, Presidential Member Daniel made the following directions:
1. The application by Mr Reynolds to adjourn the hearing today is dismissed.
2. The application by Mr Reynolds for an extension of time to lodge an appeal is dismissed.
83. On 15 April 2019, Mr Reynolds filed an application for appeal against the decision made on 8 April 2019. He listed the following as reasons for appeal:
1. No notice of this hearing was sent to me at service address
2. Original date of hearing 15/2/2019 when 3 related matters to be heard.
3. Registry takes 3 days to reply to email (not sent to me!!!) but requires respondent attend hearing with no notice
4. Procedural fairness
5. Additional persons may be added when reason for decision is furnished
84. On 2 May 2019, Mr Reynolds filed an application for appeal in relation to decisions made in relation to XD 800 of 2018 on 8 April 2018, 23 October 2018, 7 December 2018 and 8 April 2019. This application was made out of time for the decisions dated 23 October 2018 and 7 December 2018 and repeated the appeal previously filed within time for the decision dated 8 April 2019. He listed the following as reasons for appeal:
1. Timely use of Government resources in Persuit [sic] of Justice
2. errors in Law
3. errors in Fact
4. Additional evidence
5. errors in the weighting of Materials considered
85. In an email to the Tribunal registry dated 2 May 2019, Mr Reynolds asked to organise a suitable time when he could inspect the files in XD 22 of 2018, XD 334 of 2018 and XD 800 of 2018. He also asked for a copy of the transcript of the hearing on 7 December 2018. Arrangements were made, and Mr Reynolds inspected the ACAT files on 10 May 2019. Later that day he was provided with scanned copies of six documents. By email dated Sunday, 12 May 2019, Mr Reynolds requested a hard copy of those documents. Those documents were sent to him by post on Monday, 13 May 2019.
86. On 29 May 2019, each party was sent a copy of the application for appeal filed on 15 April 2019 and advised that the appeal had been listed for a directions hearing on Friday, 14 June 2019.
87. In response to the request for reasons for the decision of Presidential Member Daniel on 8 April 2019, the Tribunal decided under section 60 of the ACAT Act that a transcript of the oral reasons given at the hearing was sufficient to cover the request. A copy of that transcript was enclosed as an attachment to an email dated 12 June 2019 which was sent to each of the parties.
88. On 13 June 2019, Mr Reynolds appointed Mr Polleycutt as his attorney under a general power of attorney with the exercise of the power being subject to “nil” directions, limitations and conditions. The power of attorney commenced immediately and it was filed in the Tribunal on 14 June 2019.
89. On 14 June 2019, Mr Reynolds filed an application for appeal which was a copy of the application for appeal dated 2 May 2019 (the front page of which was signed in the presence of a Justice of the Peace for New South Wales) together with a typewritten document of five pages in relation XD 800 of 2018.
90. Mr Reynolds (together with Mr Polleycutt), and Ms Verma and Mr Rees attended the directions hearing before the Tribunal as presently constituted on 14 June 2019. Mr Polleycutt asserted his right to attend on the basis of his power of attorney and that “There’s an order in the case that says Mr Reynolds is suffering a legal disability, that he cannot sign a document.” When pressed on the existence of that order, Mr Polleycutt stated that there “is reasons for the order in this case that says Mr Reynolds is incapacitated.” (The matter of Mr Reynolds’ alleged incapacity is dealt with later in these reasons for decision.) This Tribunal considered a medical statement shown on that day which did not support that assertion, and proceeded with the directions hearing by dealing directly with Mr Reynolds rather than Mr Polleycutt, consistently with the order made by Presidential Member McCarthy on 23 October 2018.
91. The Tribunal provided each party with a copy of the Tribunal’s reasons for decision in Commissioner for Social Housing v Williams to alert them to the factors the Tribunal has to take into account in deciding whether to grant leave to appeal out of time.
92. Directions were made that Mr Reynolds, Ms Verma and Mr Rees take certain specified actions by nominated dates before 26 July 2019 and that the hearing of the appeal against the decision on 8 April 2019 and any application for leave to appeal out of time against other decisions was to commence on 6 August 2019.
93. On 5 July 2019, Mr Reynolds filed in the Tribunal an application for interim and other orders, together with a draft application for appeal in relation to decisions of the Tribunal dated 4 October 2018, 23 October 2018, 7 December 2018, 8 April 2019 and 14 June 2019.
94. On 12 July 2019, Mr Reynolds filed in the Tribunal an application for appeal in relation to decisions dated 7 (sic 8) April 2019 and 14 June 2019.
Applications for leave to appeal out of time — principles
95. 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. Appeals are considered within the Tribunal by an Appeal Tribunal.
96. A notice of appeal must be filed in the Tribunal not later than 28 days after the day the original decision is made. 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.
97. 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. As a matter of practice, presidential members are allocated to the Tribunal for the application. If leave is given and time extended, an appeal can progress using the same file and, subject to availability, the same presidential member.
98. 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) (Concerned Citizens), Refshauge J summarised the principles he had set out in an earlier case:
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.
99. That passage has been relied on by the Tribunal in published decisions and oral ex tempore decisions.
100. In essence, the principles require the Tribunal to consider the applicant’s explanation for 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
What the Tribunal decided
101. As noted earlier, Mr Reynolds’ application for interim or other orders was lodged in the Tribunal registry on 28 February 2019. It sought “leave to appeal orders suggested as possibly out of time to be heard in chambers ex party.” Attached to that application was an application for appeal in relation to XD 800 of 2018 seeking the set-aside of orders made on 25 October 2018 and the stay of proceedings.
102. The document included the following: “Reasons for appeal will be supplied when reasons for decision are available.” That statement indicates that Mr Reynolds was aware that it was possible to lodge an application for appeal against orders of the Tribunal without having received written reasons for making those orders. However, the statement is curious given that written reasons for the orders made on 23 October 2018 were sent to the parties on 9 January 2019. In case it is relevant, it is also worth recalling that the written reasons for the decision on 7 December 2018 were sent to the parties on 5 February 2019.
103. On 8 April 2019, Presidential Member Daniel considered the application for an extension of the time to appeal the decision of Presidential Member McCarthy dated 23 October 2018.
104. Ms Verma and Mr Rees participated in the hearing. Mr Reynolds was not present or represented. Presidential Member Daniel reviewed recent email correspondence between Mr Reynolds and the Tribunal and received evidence from Ms Verma and Mr Rees in relation to Mr Reynolds’ absence from the hearing. It is clear from the transcript of that hearing that Presidential Member Daniel had regard to the following:
(a) a notice of listing sent by individual emails on 29 March 2019 to Ms Verma, Mr Rees and Mr Reynolds (and by post to Mr Reynolds) with a hearing date of 15 April 2019 for the application for an extension of time to appeal, together with Mr Reynolds’ application for interim or other orders dated 28 February 2019;
(b) an email from Ms Verma and Mr Rees sent to the Tribunal on 1 April 2019 asking for the date to be moved because of their work commitments, and the provision by them of dates on which they would be unavailable for the next 14 weeks;
(c) evidence that Mr Reynolds had been playing golf at the Murrumbidgee Golf Course, Kambah on Wednesday, 3 April 2019, and that he had won the competition that day;
(d) an email from the Tribunal Registry on 4 April 2019 to Ms Verma and Mr Rees and Mr Reynolds, reminding Ms Verma that any material provided to the Tribunal in relation to the matter must be provided to the other party, and asking both parties to advise whether they would be available to attend the hearing on 15 April 2019 by phone or a rescheduled hearing on 8 April 2019 at 9.00am;
(e) further email correspondence on 4 April 2019 confirming that Ms Verma and Mr Rees were available to attend a hearing rescheduled to 8 April and a request that Mr Reynolds “please urgently advise of your views in regards to moving the hearing to 8 April 2019 at 9.00am;”
(f) attempts by the Tribunal Registry to contact Mr Reynolds twice on 4 April 2019 by email to seek his views with regard to the change of date;
(g) emails to each party on 5 April 2019 advising of the relisting of the matter on Monday, 8 April 2019 at 9.00am;
(h) attempts by the Tribunal Registry to contact Mr Reynolds by email and telephone on Friday 5 April 2019 to advise him of previous attempts to contact him and advising him that if he was unable to attend in person on 8 April 2019 he was permitted to attend by telephone, and asking him to advise the Tribunal in writing if he would like to attend by telephone and to provide his best contact number;
(i) an email message from Mr Reynolds to the Tribunal, Ms Verma and Mr Rees (and others who are not parties to the proceedings) on Saturday, 6 April 2019 stating, among other things, that he had “been unwell (assault in relation to associated matters before ACAT)”, he relied on the Tribunal’s notice of 4 April 2019 and “given the lateness of your suggested amendment, without notice,, would not appear to be reasonable” and concluded “Unfortunately, Attendance on Monday is not possible and I am not available to attend by phone. I object to the ex-party process and what appears to be preference of one party to another with no notice. Please identify how the Registry decision is to be reconsidered or procedural advice to have objected to, under the circumstances above;”
(j) evidence that Mr Reynolds had been playing golf at the Murrumbidgee Golf course on Sunday, 7 April 2019 and had placed 26th in that competition;
(k) an email sent by Mr Rees to Mr Reynolds, the Tribunal and Ms Verma (but not the non-parties to whom Mr Reynolds had sent his email) on Sunday, 7 April 2019 explaining that it was sent out of hours in order to respond to Mr Reynolds’ out of hours email before the hearing at 9:00am on Monday 8 April 2019; apologising for not including Mr Reynolds in the email to the Tribunal on 1 April 2019; and stating, among other things, that Mr Reynolds chose not to respond to the Tribunal about his availability on 8 April 2019 until after the close of business on 5 April 2019 nor did he make himself available for any of the other dates in the next 14 weeks on which Ms Verma and Mr Rees were available, it would seem extremely unfair/prejudicial for him to push for 15 April 2019 knowing that Ms Verma and Mr Rees could not attend (noting that, to that point, they had not missed or changed a hearing but Mr Reynolds had not attended “multiple times, with a pattern of notifying ACAT/us with less than 24hrs (usually less than 12hrs) out of ACAT business hours, the night before the hearing)”, and advising that they would be attending the hearing as directed on 8 April 2019 at 9:00 am and “would encourage Mr Reynolds to attend, given that this is his appeal.”
105. In deciding whether to hear and decide the application in Mr Reynolds’ absence, Presidential Member Daniel noted the circumstances in which the hearing date had been changed from 15 to 8 April 2019, attempts by the Tribunal to contact Mr Reynolds about the change of date, his email message on the Saturday, and the fact that Mr Reynolds gave no reason why it was not possible for him to attend the hearing by telephone. Presidential Member Daniel did not accept that Mr Reynolds was unwell because he played 18 holes of golf on Wednesday 3 April 2019 and on Sunday 7 April 2019, and was capable of reading (and sending) emails on Saturday 6 April 2019. She did not accept that he had a good reason for not being at the hearing, and continued with the hearing in his absence.
106. In deciding whether to grant leave to Mr Reynolds to appeal out of time, Presidential Member Daniel noted that an applicant has to give a good reason for the delay, and that the grant of extension would not disadvantage the other party. She decided that:
(a) Mr Reynolds did not provide any decent explanation for why he did not file an application within the first 28 days; and
(b) if anything, he saw this matter as intrinsically linked to the other two matters. However, they are separate matters and that is not a good reason for not lodging the application within 28 days after the decision.
107. For those reasons, Presidential Member Daniel made the following directions:
1. The application by Mr Reynolds to adjourn the hearing today is dismissed.
2. The application by Mr Reynolds for an extension of time to lodge an appeal is dismissed.
108. When announcing her decision, Presidential Member Daniel stated that Mr Reynolds could seek to appeal the decision to the Appeal Tribunal or could make another interlocutory application for an extension of time, and properly explain why he did not attend the hearing on 8 April 2019 and what his grounds for appeal are.
Mr Reynolds’ submissions
109. Although his submissions are not clearly expressed, Mr Reynolds appears to suggest that Presidential Member Daniel was in error in making the decision at the “express notice” from her that it was going to be appealed, particularly when she gave Ms Verma and Mr Rees the choice of putting the matter over until Mr Reynolds could attend or obtain orders that would be appealed. He submitted that, having chosen to have orders made, Ms Verma and Mr Rees “determined the outcome” of the hearing, received orders that the Tribunal could not make and gave him the opportunity to appeal. He continued:
Further; as foreshadowed … Appeal will be sought because the member is sitting as the original tribunal, so he will appeal decision to the appeal Tribunal; or in fact the extension of time is interlocutory and he will file again.
110. It is clear enough from the transcript of the hearing on 8 April 2019 that Presidential Member Daniel was simply acknowledging that Mr Reynolds would be able to appeal her decision to the Appeal Tribunal or lodge a fresh application. She was not inviting an appeal, and her statements about the circumstances in which an appeal might be made did not infer that she thought her decision was wrong. Nor do those statements constitute an appealable error.
111. It falls to Mr Reynolds to convince this Tribunal that:
(a) Presidential Member Daniel was in error in conducting the hearing on 8 April 2019 in the absence of Mr Reynolds; and/or
(b) Presidential Member Daniel’s decision to dismiss his application for an extension of time to lodge an appeal was wrong.
112. On the first point, I understand Mr Reynolds’ submissions to be, in summary, that:
(a) he had “instructed” the Tribunal to join his appeal against the Ms Verma and Mr Rees decision with two other related matters under appeal;
(b) the Tribunal had entertained ex parte communications with Ms Verma and Mr Rees “regarding their refusal to entertain organising limited time out of their day” to attend the scheduled hearing or to take “ten minutes break from what ever they intended to do three weeks latter” (errors in original);
(c) the Tribunal emailed its intention to “prejudice the matter” (that is, change the hearing date) by the end of the day (presumably 4 April 2019) if Mr Reynolds did not reply, and the Tribunal “took no measure to make any communication legal or reliable to enable any suggested reliance on it;”
(d) as Mr Reynolds did not receive and was not aware of the correspondence about the short notice, the Tribunal “prejudiced the matter accordingly;”
(e) Presidential Member Daniel relied on evidence from the Internet that Mr Reynolds was playing golf on another day and “as a result considered his attention to correspondence and notice of hearing was sufficient as he was on a golf cause (sic) the day before;”
(f) regardless of the notice at 1:38pm on 6 April 2019, Presidential Member Daniel “perused, considered and disregarded with prejudice” and suggested that Mr Reynolds should have provided phone contact and made 10 minutes out of his time to attend, while not considering Ms Verma and Mr Rees the same way;
(g) Presidential Member Daniel “unfairly prejudiced” the hearing in circumstances where Ms Verma and Mr Rees were “fully at fault for not being available” on 15 April 2019, and the Tribunal took no reasonable steps to identify another date that Mr Reynolds had suggested be made and did not identify “anything of relevance” as to why Ms Verma and Mr Rees could not appear by phone or authority on 15 April 2019;
(h) despite detailing other dates they were available, Ms Verma and Mr Rees “refused to make themselves available on any other date;”
(i) despite Ms Verma and Mr Rees considering other dates acceptable, the Tribunal did not provide “any reason or benefit for change” other than the convenience to Ms Verma and Mr Rees of separating the appeals in three related matters and “deliberately duplicating all costs” (emphasis in original).
113. In Attachment B he wrote:
The Appellant filed and served; and the respondents even noted at times in the same manner and forms (but without serving the Appellant of such information) claimed inability to attend due to they were out of country on holiday; clashing of “commitments” so they would not be in attendance. WHILE in the alternative: The appellant filed and served notice to all parties and the Tribunal he had been, caused due to family illness and possible death bed to be out of the country. In the decision making process this was used to prejudice his participation as the Tribunal members had not approved his family to cause his absence due to their illness and it had not been addressed, although clearly on file. However the respondents not served same notice cause Tribunal to alter “timing notices” ex-party without service and carry on hearings ex-party because in one instance he played golf at some time before the matter was to be in hearing. (emphasis and errors in original)
114. Although his written submissions on the application for appeal filed on 12 July 2019 are not clearly expressed, I understand Mr Reynolds to submit also that:
(a) Presidential Member Daniel had determined that he did not have legal capacity to file legal documents, and so he is incapable to have anyone attend as his power of attorney;
(b) Presidential Member Daniel appeared to suggest at the hearing that he is only of legal disability if he provides medical certification of such;
(c) Presidential Member Daniel reviewed the evidence and “audited” the powers of attorney, but “did not ever appear to make informed application for the Tribunals discretionary power to allow attorney deal with the matter;”
(d) Mr Reynolds was “falsely mislead, and received to unfairly be prejudiced in the members statements the Parties must agree to amend the proceedings as a result.”
115. In conclusion, he submitted:
This material effect of the substance and claims made in the matter caused material variances to the application and hearing of the matter in any reasonable due procedural and fair manner.’ Further ACAT member then attended to withdraw the Power of Attorney’s Legal Aid in the commission, and had cause to denigrate and defame that professional in Federal Court. ACAT appears to suggest the respondent with no experience or knowledge of procedural adherence and capacity is, legally disabled to understand his authority of providing Power of Attorney; to assist his procedural and communications at hearing with some clarity; to prejudice his matter due to the fact that his Power of Attorney identified the Members errors, and attended to deal with them in his best interests.
Ms Verma’s and Mr Rees’ submissions
116. Ms Verma and Mr Rees submitted that Mr Reynolds failed to comply with Direction 2. His submission did not include any information that identified which page or pages on the transcript from the hearing on 8 April 2019 recorded an error in law or fact. Mr Reynolds also failed to put forward orders that he requested the Appeal Tribunal should make.
117. They noted that the decision made by the Tribunal on 8 April 2019 was to dismiss an appeal that was also made out of time against the substantive decision made on 7 December 2018.
Consideration and conclusion
118. Mr Reynolds’ submissions have been summarised and quoted in detail above. Those submissions raise procedural rather than substantive issues. Although in some circumstances procedural defects (including when caused by the Tribunal) could lead to a decision being set aside and a rehearing being ordered, the procedural flaw needs to be significant.
119. In relation to the rescheduling of the hearing from 15 April to 8 April 2019, the following are my conclusions by reference to the order of Mr Reynolds’ submissions summarised above.
120. As to the submission summarised at [112](a), I simply note that it is not for a party to “instruct” the Tribunal to join one matter with one or more others. The three proceedings against Mr Reynolds were commenced separately, involve different parties, and resulted in different remedies being awarded. At no time, to date, have the appeals been joined substantively or procedurally. To the extent that Mr Reynolds might have timed his applications for appeal and applications for leave to appeal out of time in the hope or expectation that all three matters would be somehow joined together, he was mistaken. That was a tactical error on his part and not one for which the other parties should be caused to suffer. As to the related submission summarised at [112](h), it could equally be argued that there would be a duplication (or more) of costs if all three appeals were joined and the applicant in each matter had to participate in a full appeal hearing for all three matters.
121. The interrelated submissions summarised at [112](b), (c), (d), (g), (h) and (i) are rejected. The Tribunal did not change the date to 8 April 2019 at the request of Ms Verma and Mr Rees. Rather, it changed the date from 15 April 2019 at their request because of their unavailability (as it had done by vacating the 5 October 2018 conference date because Mr Reynolds and his representative were unavailable to attend the conference). Ms Verma and Mr Rees nominated dates that they were unavailable in the period 2 April 2019 until 26 July 2019. By inference, if the Tribunal chose any other date or dates they would participate. It is manifestly incorrect to assert that Ms Verma and Mr Rees refused to make themselves available on any other date, or that they were “fully at fault for not being available” on 15 April 2019.
122. The Tribunal asked whether Ms Verma could attend by telephone on 15 April 2019. The Tribunal also advised both parties that it “may be able to reschedule a hearing” to 8 April 2019 at 9:00am, and sought the parties’ views. Repeated attempts to contact Mr Reynolds and obtain his views were unsuccessful. It was Ms Verma who contacted the Tribunal to ask whether the date and time had been changed.
123. The Tribunal’s initiative needs to be understood in the factual and statutory context in which it operates. First, the Tribunal is busy with thousands of matters filed each year, a small number of full-time members and a range of sessional members who are engaged to deal with individual matters or list of matters on days when the need arises and they are available. Having scheduled matters to be heard at specified times and dates, the Tribunal tries to make appropriate arrangements if a party or parties have a demonstrable and valid reason to be unavailable at that time and date. However, it is not the parties who determine those dates and times. The Tribunal has to make appropriate or optimal use of its resources of time and personnel. It might be able to accommodate the changed circumstances of a party or parties, but also has to consider the overall impact of changing times and dates on other, unrelated matters scheduled to be heard. The administration of justice involves more than the determination of individual cases between particular parties.
124. Second, the Tribunal also operates in the context of statutory provisions, including an object of the ACAT Act “to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice.” In exercising its functions under that Act, the Tribunal must “ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice.”
125. For those reasons it was appropriate for the Tribunal (not a party or parties) to nominate and settle on 8 April 2019 for the rescheduled hearing.
126. As for the submission summarised at [112](e), Mr Reynolds did not deny the evidence of him playing golf on 3 and 7 April 2019 and did not put in issue the conclusion drawn by Presidential Member Daniel based on that evidence. Significantly, he offered no evidence to this Tribunal to demonstrate that he was unwell and that he was unable to attend the rescheduled hearing for that or any other reason, or that he could not participate by telephone. Nor did he provide any basis on which this Tribunal could find that Presidential Member Daniel was in error when finding that he played golf on 3 and 7 April 2019, and in concluding that he was not unwell.
127. The submission summarised at [112](f) lacks force, given Presidential Member Daniel’s finding that Mr Reynolds was not unwell and that he provided no other substantive reason for not attending or participating in the hearing of his application.
128. The submission quoted at [113] repeats matters in [112] which are dealt with above.
129. The submissions summarised at [114] and [115] are not clear, but it is difficult to discern their relevance to Presidential Member Daniel’s decision to proceed in Mr Reynolds’ absence on 8 April 2019, particularly as there was already an order in place that Mr Polleycutt not participate as Mr Reynolds’ representative. The issue about Mr Reynolds’ alleged lack of capacity and legal disability is dealt with in detail later in these reasons for decision (see [159] to [166] and [243] to [261]). To the extent that the findings and conclusions expressed there are relevant to these submissions they are adopted, and these submissions are not accepted.
130. This Tribunal has no difficulty in accepting that Mr Reynolds was unhappy about the rescheduling of the hearing of his application for the grant of extension of time in which to appeal the decision of Presidential Member McCarthy. However, this Tribunal is not satisfied that, in the circumstances, Presidential Member Daniel was in error in proceeding in his absence.
131. It is necessary therefore to consider whether Presidential Member Daniel was in error in dismissing the application for leave to appeal out of time against the decision of Presidential Member McCarthy.
132. As noted earlier, in deciding whether to grant leave to Mr Reynolds to appeal out of time, Presidential Member Daniel stated that an applicant has to give a good reason for the delay, and that the grant of extension would not disadvantage the other party. She decided that:
(a) Mr Reynolds did not provide any decent explanation for why he did not file an application within the first 28 days; and
(b) if anything, he saw this matter as intrinsically linked to the other two matters. However, they are separate matters and that is not a good reason for not lodging the application within 28 days after the decision.
133. Those reasons, although brief, were sufficient to dispose of the application before the Tribunal. Mr Reynolds had not filed his application for appeal within the prescribed period and had not given any decent explanation why he did not do so. Nor did Presidential Member Daniel decide that the grant of extension would not disadvantage the other party.
134. Mr Reynolds has provided nothing to suggest, let alone compel, a conclusion that the decision was legally incorrect.
135. Consequently, I dismiss the appeal against the decision of Presidential Member Daniel on 8 April 2018 to refuse an extension of time to appeal against the decision of Presidential Member McCarthy.
Application for leave to appeal out of time – the Tribunal decisions of 23 October 2018 and 7 December 2018
What the Tribunal decided
136. The two decisions that are the subject of applications for leave to appeal out of time are:
(a) the decision of Presidential Member McCarthy on 23 October 2018, for which written reasons were delivered on 9 January 2019; and
(b) the decision of Senior Member Anforth on 7 December 2018, for which written reasons were delivered on 5 February 2019.
137. On 23 October 2018 Presidential Member McCarthy made the orders quoted at [43]. In his written reasons for the decision on 23 October 2018, Presidential Member McCarthy explained that he had not set aside the directions made by Senior Member Robinson on 4 October 2018 because:
(a) to do so (including vacating the hearing date) would have been a “very significant step” for the Tribunal, which is established and run at public cost to enable small claims to be resolved as quickly as is consistent with achieving justice;
(b) Mr Reynolds’ application was based on claims that were baseless and, had he wished to pursue the issues set out in his interim application, he should have done so months before;
(c) he was satisfied that the orders in the interim application were sought only to further Mr Reynolds’ and/or Mr Polleycutt’s endeavour to delay and avoid, rather than respond to, the substance of the claim;
(d) to have vacated the hearing date would have caused Ms Verma and Mr Rees “considerable distress and frustration;”
(e) to have set aside the orders made on 4 October 2018 would have defeated a fundamental object of the Tribunal’s civil jurisdiction, namely to resolve small claims as quickly as is consistent with achieving justice, and Mr Reynolds had by his conduct made clear that he had no intention of defending the substance of the claim brought against him and instead intended to avoid the claim as best he could;
(f) timeliness in the administration of justice and the efficient use of the Tribunal as a public resource are important.
138. In summary, the reasons why Presidential Member McCarthy concluded that Mr Polleycutt should be stopped from representing Mr Reynolds or taking any further part in this proceeding were as follows.
(a) Mr Polleycutt’s conduct amounted to “overt and repeated attempts not to meet the applicants’ claim, but to avoid and delay its resolution.”
(b) Attachment C to Mr Reynolds’ interim application did not respond to the claim by Ms Verma and Mr Rees but instead “Mr Polleycutt made claims that in a court application (pleading), in my view, would be struck out as scandalous and vexatious.”
(c) Rule 8(3)(c) of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) permits the Tribunal, by order, to stop a representative from taking any further part in the proceeding where the representative’s representation is inconsistent with the objects of the ACAT Act.
(d) Mr Polleycutt’s conduct in representing Mr Reynolds in this case was inconsistent with the objects of the ACAT Act, and he should be stopped from representing Mr Reynolds.
139. Presidential Member McCarthy described the proposed order for access and inspection as “no more than a tactic for avoidance and delay,” especially as Mr Reynolds had been on notice of the alleged defects since 12 December 2017 and had months to arrange a time to inspect the alleged defects and deal with them.
140. In the course of his written reasons for decision, Presidential Member McCarthy referred twice with approval to the decision of Senior Member Robinson dismissing the claim that the original claim for $25,161.99 exceeded the Tribunal’s jurisdiction of $25,000.
Prejudice to Ms Verma and Mr Rees if leave is granted
283. Mr Reynolds submitted that he, rather than Ms Verma and Mr Rees, is the person suffering prejudice including as a result of the “prejudice caused by dispensing ex-party an proper process of conference and disclosure prejudicial the Appellant in the whole” (errors in original).
284. His written submissions, while unclear, seemed to be that:
(a) by refusing to bring their claim into jurisdiction, Ms Verma and Mr Rees caused Mr Reynolds prejudice “all the way through as a result of their misleading conduct;” and
(b) because they sought to enforce the Tribunal’s order in the Magistrates Court while there are appeal proceedings in the Tribunal, they have wasted Court resources and “they have forced upon themselves” any “determent” (sic - detriment?) “at a last resort to raise unfair un-reasonable claim of prejudice (If now made) in reply.”
285. Ms Verma and Mr Rees submitted that, although Mr Reynolds has held himself out as the victim, it is they who have suffered as a result of what he has done. They do not want the process for resolving their claim to be delayed further.
286. The financial and emotional consequences of these proceedings for Ms Verma and Mr Rees were evident from their written and oral submissions to this Tribunal. They have had to make substantial financial investment in relation to what Mr Reynolds has done.
287. Mr Rees stated that they had considered commencing proceedings in the Magistrates Court but had proceeded in the Tribunal, thinking that “it would be a quick process that would be easy to deal with.” However, it had become “a prolonged process” which they were trying to complete as soon as possible.
288. At the end of the hearing on 6 August 2019, Ms Verma explained that the ongoing impact of having to live with the poor workmanship and faulty product was exacerbated by the prolongation of these proceedings by the repeated attempts by Mr Reynolds to appeal or seek leave to appeal out of time each decision of the Tribunal. She said:
Every single day since November 2017 we have woken up and these windows have been there. The damaged to our property, any future renovations that we have sought out to do with our brand new property as a married couple, we have not been able to do. This giant folder is a reflection of some of the weight that we have carried since November 2017 to put forward arguments to Mr Reynolds to rectify the wrong he has done towards us.
289. That prejudice extended to the conduct of the present proceedings. It became apparent at the hearing on 6 August 2019, that although he sent Attachments A, B, C, H and I to Ms Verma and Mr Rees, Mr Reynolds had not provided them with the application dated 5 July 2019. He gave no explanation of that failure to comply with Direction 1. To that extent, Ms Verma and Mr Rees were disadvantaged in not knowing in advance of the hearing the context in which the Attachments were provided.
Other observations and conclusion
290. As noted elsewhere in these reasons, Mr Reynolds’ voluminous submissions were difficult to understand. Their general import could only be gleaned by repeated and close reading. A torrent of text is no substitute for substance. The numerous procedural points were either not made out or were convincingly rebutted. The fewer evidentiary and potentially substantive points lacked substantiation or were plausibly rebutted.
291. The analysis of the material provided by or on behalf of Mr Reynolds leads inevitably to the conclusions that:
(a) there was no meritorious reason for his delay in lodging his application for appeal against either the decision of Presidential Member McCarthy on 23 October 2018 or Senior Member Anforth on 7 December 2018;
(b) if Mr Reynolds was granted leave to appeal out of time, it is highly likely that his appeals would not succeed; and
(c) any further delay in the finalisation of these proceedings would only prolong and compound the prejudice already suffered by Ms Verma and Mr Rees since the date when the order was made that Mr Reynolds pay them $25,161.99.
292. Consequently, the applications for an extension of time to appeal against the decision of Presidential Member McCarthy dated 23 October 2018 and the decision of Senior Member Anforth dated 7 December 2018 are refused.
The directions dated 14 June 2019
What the Tribunal decided
293. Each party attended and participated in the directions hearing on 14 June 2019. Mr Polleycutt was also present with Mr Reynolds.
294. During the directions hearing, Mr Polleycutt asserted his right to attend on the basis of his power of attorney and that “There’s an order in the case that says Mr Reynolds is suffering a legal disability, that he cannot sign a document” and that there “is reasons for the order in this case that says Mr Reynolds is incapacitated.” This Tribunal considered a medical statement shown on 14 June 2019 which did not support Mr Polleycutt’s assertion, and proceeded with the directions hearing by dealing directly with Mr Reynolds rather than Mr Polleycutt, consistently with the order made by Presidential Member McCarthy on 23 October 2018.
295. The Tribunal provided each party with a copy of the reasons for decision in Commissioner for Social Housing v Williams to alert them to the factors the Tribunal has to take into account in deciding whether to grant leave to appeal out of time.
296. When formulating the timetable to be followed, this Tribunal asked Mr Reynolds how much time he would need to comply with the initial direction and Mr Reynolds suggested “Three weeks, maybe” as he had three matters to deal with. The timetable for the directions took that request into account. Ms Verma and Mr Rees were then asked how long would be sufficient for them to reply. The arrangements for each party to provide documents to the other were reviewed.
297. The Tribunal then made four directions to the effect that:
(a) by 5 July 2019, Mr Reynolds was to file in the Tribunal any application for leave to appeal out of time in relation to any one or more of the decisions of the Tribunal listed in applications lodged by him on 2 May 2019 and 14 June 2019 that was not already listed in the application for appeal lodged by him on 15 April 2019, and written submissions in support of the application for leave to appeal out of time in respect of each decision listed in the application (Direction 1);
(b) by 12 July 2019, Mr Reynolds was to provide to Ms Verma and Mr Rees and the Tribunal a written statement identifying every error of law or fact that he said was made by the Tribunal on 8 April 2019 identifying the relevant page or pages of the transcript of the hearing where each error was made, as well as copies of any documents he relied on as evidence in relation to reasons for appeal specified in his application of 15 April 2019, a written outline of submissions about why the Tribunal was in error, and the orders that Appeal Tribunal should make (Direction 2);
(c) by 26 July 2019, Ms Verma and Mr Rees were to provide Mr Reynolds and the Tribunal with a written outline of submissions in response to any application for leave to appeal out of time made by Mr Reynolds and the documents provided by him, and the orders that the Appeal Tribunal should make (Direction 3); and
(d) the hearing of the appeal and any applications for leave to appeal out of time would commence at 10:00am on Tuesday, 6 August 2019 (Direction 4).
Mr Reynolds’ submissions
298. Mr Reynolds’ applications filed on 5 July 2019 include the “decision” of this Tribunal on 14 June 2019 in the list of decisions against which he appealed. Attachment H specified Directions 1 to 4 as ‘appealed.’
299. In the two pages of typewritten submissions lodged on 12 July 2019 with his application for appeal, the only reference to these directions is “Appeal President Neate 14/6/19.”
300. However, in the written submissions attached to the draft application for appeal filed on 5 July 2019, Mr Reynolds made the following written submissions:
g. File not looked at;
i. Obviously as demonstrated in the President Neat hearing in the pre-emptive administration of the matters; Seemingly no regard is placed on inspecting; viewing; or considering the file; the reasons recorded; the transcripts on file; or the apparent breaches of Law making the matters un-lawful regardless appear relevant in the administration of the matters before the most senior of Tribunal decision makers.
301. He continued later:
In regards the President Neate hearing in all three appeal matters he refused to consider, address or decide anything in relation to the Federal power of attorney’s filed and served ignoring the Disclosure of the Appellants medical health; stress depression and anxious shock caused at the hands of his Tribunal.
302. When asked at the hearing on 6 August 2019 why he was appealing the directions Mr Reynolds stated that “everything seems to be going against me and I just appeal everything. As I said to you, I’m not particularly good at doing these things but we – I, sorry, apologies, basically think that you didn’t take into consideration my lack of representation, the fact that it had been removed from me.”
Ms Verma’s and Mr Rees’ submissions
303. Ms Verma and Mr Rees noted that Mr Reynolds gave no reason for appealing against the directions made at the directions hearing on 14 June 2019. They also noted that the first time Mr Reynolds referred to a power of attorney was at that directions hearing.
Consideration and conclusion
304. Mr Reynolds did not provide a legal basis for appealing directions of this Tribunal, nor did he present a persuasive argument for why (if an appeal was legally possible) the directions should be set aside.
305. In any case, no practical purpose would be achieved by allowing the appeal. As noted earlier, each party responded to the Directions 1 to 3 for the preparation, lodgement and exchange of documents. Each party attended the hearing in accordance with Direction 4. A successful appeal would achieve no practical outcome.
306. The appeal against the directions made by this Tribunal on 14 June 2019 is dismissed.
307. Finally, it is appropriate to note that, in his application for interim and other orders filed on 5 July 2019, Mr Reynolds listed the decision dated 4 October 2018 among those which he sought to appeal. The inclusion of that decision was inconsistent with Direction 1, as that decision had not been listed in previous applications for appeal. Accordingly, it was not dealt with during the hearing on 6 August 2019.
308. Even if that decision had been properly the subject of the application for leave to appeal out of time, leave would not have been granted. The reasons are essentially the same as those given for rejecting the application in relation to the directions made on 14 June 2019.
309. By orders dated 4 October 2018, Senior Member Robinson listed the application for hearing on 7 December 2018 and gave directions for Mr Reynolds and Ms Verma and Mr Rees to provide material to each other and the Tribunal by specified dates, and the service of subpoenas by specified dates. Mr Reynolds’ addresses for service by post and email were specified.
310. The orders were procedural. The parties either complied or did not comply with them. The hearing proceeded on 7 December 2019 as scheduled. The outcome of that hearing is the subject of an application to appeal out of time which is considered earlier in these reasons for decision. There would be no practical benefit in allowing an appeal to proceed in relation to the orders of 4 October 2018. The application lacks merit and is dismissed.
Concluding observations
311. Three concluding observations are appropriate. 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.
312. 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.
313. 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.
314. 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.
315. In that context, I note that a differently constituted Appeal Tribunal wrote in Hussain v Farhmand:
… 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.
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.
316. The results in this case and the reason for it demonstrates the adverse consequences for applicants (in this case Ms Verma and Mr Rees) and the diversion and use of substantial Tribunal resources when dealing with procedures with such manifest lack of merit.
317. 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.” 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.”
318. As noted earlier, there is a real question whether the Tribunal has power to deal with a range of interlocutory applications. There is a relatively recent decision of a presidential member of the Tribunal to the effect that no appeal lies from interlocutory decisions of the Tribunal. There was no appeal against that decision. Nonetheless, it remains a decision which is 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 that earlier decision, 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
319. For the reasons set out above:
(a) the appeal against the decision of Presidential Member Daniel on 8 April 2019 is dismissed;
(b) the applications for an extension of time to appeal against the decision of Presidential Member McCarthy dated 23 October 2018 and the decision of Senior Member Anforth dated 7 December 2018 are refused; and
(c) the appeal against the directions of the Tribunal dated 14 June 2019 is dismissed.
………………………………..
President G Neate AM
Appendix – Attachment A to Application for Appeal pages 8-11
Reasons for leave to be given:
1) Procedural fairness / natural justice (Legal concern to avoid practical injustice);
2) Breach of Human rights; ·
3) Prejudice in administration if not and or hearing of the matter
4) Wilful carelessness or deliberate advantage sought to-what ACAT determined the Respondent suffering "legal disability";
5) Legal error;
6) ACAT has NOT provided equal access; application and capacity to participate in the Public Authority's administration and application of Law;
7) Orders are incorrect:
a. Orders do not legally meet of consider the objectives of the Act
b. Orders breach the intention of the Act
c. ACAT failure to give proper consideration of and / or reasonable weight on “evidence” before the court;
d. Application was unsuccessfully filed twice on order on order to be refiled with better particulars to enable the claim met
e. Application relied on "Expert" who did not file appropriate. undertaking or warrant on approved Tribunal form;
f. Application relied on verbal opinion of unlicensed ''builder" without any relevant qualification and capacity;
g. ACAT procedures and administration deficient and prejudicing Respondent from access and participation in the public authority's determination of the matters;
h. ACAT after Legislative Assembly members advised of breach of human rights advised after the fact of NEW capacity to file APPEAL without compliance of Law, previously unavailable, was now accepted without any basis of appeal identified as VALID due to ACATs failures to administer decisions in a timely cost effective manner;
…
k. Nature of ACAT in administering Hearings and or to consider the effect and well being of Respondent and Representative in the matter harassed and threatened by personal Violence on ACAT record;
l. Failure of ACAT to consider weight or guidance on the incapacity of the Respondent to understand or meet what is a convoluted claim of unknown and undermined possibilities of future events;
m. ACAT decision of "balance of probabilities" based on what appears "balance of undeterminable possibilities with no evidence of fact to support"
n. ACAT failure to consider or weight and address ACAT's determination of "legal disabilities" caused by the Applicants behaviour and Applications.
o. ACAT failures to not only avoid blatant discrimination but careless disregard to being seen to be indiscriminate or to NOT interfere within the evidence and assessment of that evidence withheld from the respondents;
p. ACAT failure to administer the Law and justice, by withholding any reasons for decisions for some FOUR MONTHS,
q. ACAT application of LAW quoting reasons of decisions made simultaneously in the same hearing as basis of the decision made at the same time!
r. Non compliance with law was forced by ACAT irresponsibly, willfully carelessly and with no just cause;
i. ACAT wilfully and carelessly makes decisions with no identified reasons available for FOUR MONTHS;
ii. ACAT wilfully and carelessly delays providing reasons; that must be known as ACAT references precedent in reasons to decisions made simultaneously by the member at the same time on same day! But deliberately obfuscates up to FOUR MONTHS TO MAKE sure APPEAL is seen an IMPOSSIBLITY without further unreasonable delay; expense; waste of limited public resources; in breach of the ACAT act and its objectives;
s. Endemic systemic failure’s of the public authority ACT Courts and Tribunal; ACAT; to administer Justice;
i. Not having sufficient APPLICATION filed to enable the Respondent determine what of relevance or basis of claim can be made out or met;
ii. Respondent unable to understand or consider what was claimed is irrelevant to ACAT as decisions note ACAT has the responsibility to define and apply the correct Law. The Respondent is to weight for decision to be able to understand if anything has been found in dispute; to identify any "Law'' Sections and Regulations ACAT may have applied or failed to apply in defining what ACAT might consider as legally relevant;
iii. Respondent unable to identify or agitate matters in a reasonable manner and without prejudice to the decisions made;
iv. ACAT decisions based on manufactured "balance of what might of might not be possibilities" of unknown future events unable to quantify or determine in any reasonable if at all capacity of these imaginary damages today on "balance of probability"
v. discriminately ACAT members hand picked irrelevant legislation without reasonable assessment of its application to prejudice the Respondent and imply terms not capable of inclusion "as implied terms" under the Legislation in the matter;
vi. ACAT Orders not based on nor were they reasonably made in consideration of and or appropriately weighted the relevant Laws in prescribing or administering the matters within the appropriate legal procedures required to enable ACAT to and be seen to conduct the administration of the public authority with due care and consideration of determining Law consistent with achieving justice;
vii. ACAT Senior Members provided miss-directions; statements of fact that were false and misleading and at the very foundations of and pivotal matters that affected the matter so it could NOT EVERY be reasonably possible to identify on any “balance of probability” the parties the Applicant was made against or the cause of action pressed.
viii. ACAT lake of legal required “timing notices” (phone calls to say hearing in two hours be there)
ix. ACAT lake of attendance to its Jurisdiction limits (Claim what you like will hear it ex-party; verbally alter claim and determine matter in Parties absence to what should be if not amended application filed heard in competent jurisdiction;
x. ACAT altered without approval the Chessell file; the respondents SERVICE ADDRESS. On inspection 15-20 times were RED TAGED AS ALTERATIONS made by Registry without consent. Their was only ONE bono fide NOTICE OF CHANGE OF ADDRESS;
xi. ACAT interfered with the application of Law and the pursuit of Justice by altering the Respondents capacity to have served, consider, reflect, seek advice and agitate reasonably matters.
xii. A lot of pivotal elements of the case file were interfered with. NO documents or information had been served and this is prescriptive the breaches of Law and actions in obtaining these orders. Presumed reasonably to be Illegal in the Courts administration of Justice
xiii. Orders were made after the Members had applied procedures, directed evidence, squashed the giving of evidence, and did not allow evidence to be fully completed.
xiv. While the appeal (denied by Registry as available due to ACAT not providing reasons of decisions that enable consideration and required to be itemised as deficient in APPEAL) made the day or there by to many orders. The ACAT registry failed to direct procedure or manage the hearings in compliance of seeking Justice.
xv. While the appeal (denied by Registry as available due to ACAT MEMBERS not providing reasons of decisions that enable consideration and required to be itemised as deficient in APPEAL) made the day or there by to many orders; The ACAT SENIOR MEMBERS failed to direct procedure or manage the hearings in compliance of seeking Justice.
xvi. While the Respondent was unavailable / incapacitated; or unaware of ACAT decisions ACAT Senior MEMBERS pressed on regardless on the basis of their own personal feelings and imaginations of what a decision made might have been based on "the possibilities to substantiate what they derived to be the "balance of probabilities" in the matter.
xvii. ACAT placed no weight on the Matter’s importance being of or above the HIGHEST JURISDICTIONAL LIMIT; gave no weight or consideration to the Tribunal’s incapacity to administer the basic fundamental issues required in an application (jurisdiction; basis; content; capacity or inclusion of real / relevant evidence) to enable a reasonable person respond other than to dispute claim.
xviii. ACAT is wilfully careless or an incompetent jurisdiction in compliance with it's fundamental obligations and Legislative Law's the Public Authority is to administer the public office;
xix. ACAT refer to the informal setting provides capacity to consider its failure to administer the public authority in compliance with the Law to prejudice anyone asking for procedural fairness, as valid under "5A" to reduce it's costly; time consuming waste of limited public funds to apply in the pursuit of justice;
xx. ACAT in written decision, prejudices parties attending the Public Authority for raising any error of fundamental basis causing legal issuies to be packaged up as reasons to remove a person subjected to what ACAT determine a legal disability (of ACTA's causation in failure to administer the law competently) "is distracted by peripheral procedural issuies {of minor importance; not essential and superficial}
xxi. ACAT considers a parties failures to appeal ACAT's decisions based on failures to apply Law / error of law resulting from ACAT's administrative incompetence caused by the cost; and time ACAT takes to provide procedural fairness is a waste of public funds as this incompetence is considered peripheral procedural issuies that allow ACAT to discriminately refuse addressing those very fundamental failures that caused it's decisions to be made ERRORS OF LAW.
…
…
HEARING DETAILS
FILE NUMBER:
AA 10/2019
PARTIES, APPLICANT:
Patrick Leo Reynolds
PARTIES, RESPONDENT:
Kavita Verma
William Rees
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
DATES OF HEARING:
6 August 2019
2
13
5