Riley v St Vincent de Paul Society Canberra/Goulburn
[2025] ACTSC 321
•25 July 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Riley v St Vincent de Paul Society Canberra/Goulburn |
Citation: | [2025] ACTSC 321 |
Hearing Date: | 23 July 2025 |
DecisionDate: | 25 July 2025 |
Before: | Elkaim AJ |
Decision: | See [42] |
Catchwords: | APPEAL – APPEAL FROM ACAT – application for leave to appeal from ACAT – whether substantial injustice if leave not given – errors in ACAT decision – leave given |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT), s 56 ACT Civil and Administrative Tribunal Rules 2020 (ACT), r 70 |
Case Cited: | The Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 35 |
Parties: | Adrian Riley (Appellant) St Vincent de Paul Society Canberra/Goulburn (Respondent) |
Representation: | Counsel Self-represented ( Appellant) C Sawley (Respondent) |
| Solicitors Self-represented (Appellant) Hicksons (Respondent) | |
File Number: | SCA 13 of 2025 |
Decision under appeal: | Court/Tribunal: ACT Admin & Civil Tribunal Before: Acting Presidential Member G Curtin SC Date of Decision: 1 April 2025 Case Title: Riley v St Vincent de Paul Society Canberra/Goulburn No 3 Court Files Number: AA 26 of 2024 RT 1252 of 2023 |
ELKAIM AJ:
Introduction:
This is an application by Mr Riley for leave to appeal from a decision in the ACT Civil and Administrative Tribunal (ACAT) made on 1 April 2025 by Acting Presidential Member G Curtin SC (the Presidential Member).
The dispute between the parties arises from a rental agreement made in 2017. Mr Riley, who I will refer to as the applicant, has had periods where he has not paid rent and there has been an accumulation of arrears. In short the respondent wants the arrears and also to evict Mr Riley.
I think this matter will benefit from a chronology. The chronology does not cover every date and every hearing, but lists the relevant events.
06/02/17 Original occupancy agreement between Mr Riley and St Vincent De Paul Society. The agreement includes a rental figure of $346 per fortnight, but acknowledged to be an error, the rent being $326 per fortnight. 03/11/19 The applicant stops paying rent. 05/07/21 The applicant resumes paying rent but at a reduced figure of $217.01 per fortnight. 08/12/23 The respondent files an application for arrears of rent from 3 November 2019 to 9 October 2023 in the sum of $29,579, but later amended to $25,000 in order to remain within the ACAT jurisdiction. 03/04/24 The respondent’s application for arrears is heard in ACAT. The applicant leaves during the hearing. 30/05/24 ACAT finds for the respondent and orders payment of the arrears of $25,000 and eviction. 19/06/24 The applicant lodges an appeal against the 30 May decision. 17/12/24 The appeal is heard by the Presidential Member. There is no appearance by the applicant. The appeal is dismissed on the same day. 28/01/25 The applicant files an application to set aside the decision made on 17 December 2024. 20/02/25 The application to set aside is heard by the Presidential Member relying on r 70 of the ACT Civil and Administrative Tribunal Rules 2020 (ACT) and s 56 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act). 01/04/25 The Presidential Member delivers his decision, dismissing the application to set aside the decision of 17 December 2024. 23/04/25 The applicant files an application in the Supreme Court for leave to appeal from the decision of the Presidential Member given on 1 April 2025.
The matter heard by me is the application for leave to appeal. In order for leave to be granted the applicant must show a substantial injustice if leave were not granted.
The applicant said there were a number of errors in the decision of 1 April 2025 which gave rise to the injustice. He submitted that he should be able to appeal from the decision of 17 December 2024 because there were good reasons for his non-appearance and he had legitimate points to raise in opposition to the arrears, or at least their calculation.
The respondent opposed the granting of leave, essentially stating that the decision of 1 April 2025 was correct because it recognised that any appeal from the decision of 30 May 2024 would have been futile and there was no good reason for the applicant not appearing at the hearing on 17 December 2024.
The respondent referred to r 70 and the qualifications within the rule to the effect that the absence of a party is not necessarily determinative of a decision being set aside under the rule.
Noting again that I am concerned with the decision of 1 April 2025, the question arises as to whether this decision contains errors such that it would be an injustice not to allow leave to appeal.
In reaching the conclusion to find against the applicant, the Presidential Member appropriately concentrated on matters relevant to r 70 and in particular whether the applicant had provided a good reason for his non-appearance and whether, had he appeared, there might have been a different result.
Absence of the applicant on 17 December 2024
The Presidential Member dealt with the reasons for the absence from [29] of the decision. He refers to a letter from a general practitioner, Dr Le Riche (erroneously referred to as Dr Larish) dated 11 February 2025. The Presidential Member says that the letter states that “Mr Riley had been admitted to the Adult Mental Health Unit and was unable to appear at the appeal”. The letter actually says:
Adrian has been most unwell over the December period. On 14 December 2024 he presented to ED. He was seen and managed by the mental health team over December 2024. He was not able to attend his hearing on 17 December 2024. Please award him some leniency in this matter
The Presidential Member, having apparently misinterpreted the letter, decided that no leniency was appropriate.
The decision, at [31], then refers to a Discharge Summary that had been handed up by the applicant:
In the hearing before me, Mr Riley tendered a Discharge Summary from his mental health admission. It revealed he had been admitted to the Emergency Department at 3.21 am on 13 December 2024, and discharged at 4.30 pm the same day, some four days before the hearing of the appeal.
Once again the Presidential Member has misinterpreted the document. The discharge summary actually says that the applicant was discharged from the Emergency Department on 12 December 2024 and then admitted to the Mental Health Unit at 3.21am on 13 December 2024 and then later on the same day was discharged from this unit, at 4.30pm.
At [32] the Presidential Member says he does not accept the applicant’s submissions about his admission and discharge because the submissions were “inconsistent with the Discharge Summary”. There is a slight inconsistency with the applicant’s submission, as there is in the Presidential Member’s reasons.
The Presidential Member quotes from the Discharge Summary and says that it “does not reveal anything which persuades me that Mr Riley was unable to attend the appeal.” The Presidential Member goes on to say, at [34], that “[n]o evidence was provided of his mental state on the day of the appeal…”
I find these conclusions difficult to comprehend. Five days before the hearing the applicant was admitted, first to the Emergency Department and then to the Mental Health Unit suffering from suicidal ideation and was then discharged to Adult Mental Health Services until 30 December 2024. Further there is the letter from Dr Le Riche stating that “He was not able to attend his hearing on 17 December 2024.” The Presidential Member gives no reason for ignoring the opinion of the general practitioner.
There are further errors concerning the general practitioner’s letter. At [37], the Presidential Member stated:
What happened on that occasion [referring to an appearance before the President on 18 February 2025] was that Mr Riley was asserting that he had been unable to attend the hearing of the appeal because he had been admitted to hospital and remained there on the day of the hearing. The general practitioner’s letter spoke to that fact.
The general practitioner’s letter does not speak to the fact that the applicant was in hospital on the day of the hearing. The letter says he could not attend the hearing on 17 December 2024, but it does not say that was because he was in hospital on the day of the hearing.
The Presidential Member, at [36], also observes that the transcript of the hearing for 18 February suggests that the applicant had misled the Presidential Member in stating that the President had told him “that he only needed the Discharge Summary.”
An examination of the transcript for 18 February 2025 does not, in terms, say that the President had told the applicant that he only needed a Discharge Summary, but it certainly contains a question from the President asking him if he has a discharge letter from the Adult Mental Health Unit. In my view the criticism of the applicant made in [36] is unfair.
The respondent accepted that there might be some minor errors in the Presidential Member’s assessment of the medical evidence but submitted they were not such as to impugn the decision. It was also pointed out that on 11 December 2024 the applicant had made a complaint to the Office of the NSW Legal Services Commissioner concerning the conduct of the respondent’s solicitor. It was suggested that if the applicant had the capacity to make a complaint on 11 December he would have had the capacity to attend the hearing on 17 December.
The respondent’s reasoning is, with respect, flawed. Firstly the complaint was made by the applicant from home without needing to attend at any hearing of any sort, and secondly, and more importantly, the complaint predates, even if by only one day, the applicant’s admission to hospital for significant mental health reasons.
In my view the errors made by the Presidential Member concerning the applicant’s absence from the hearing are sufficient to justify the granting of leave.
I do however recognise that leave should not be granted if it would be futile having regard to its prospects of success. As pointed out by the respondent, there can be no doubt that the applicant is in significant arrears of his rent and that he is in effect simply delaying the inevitable obligation to pay those arrears and avoid eviction from his residence.
Other asserted errors
The applicant said that there were substantial issues concerning the assessment of arrears and there were also some errors in the Presidential Member’s decision of 1 April 2025 concerning various calculations.
I was first taken to the passages commencing at [18] where there is a discussion about the appropriate rent being $217.01 per fortnight as opposed to $326 per fortnight. The $217.01 was said to have come into effect on 5 July 2021. The period during which arrears were claimed was 3 November 2019 until 9 October 2023, at a rate of $326 per fortnight, although the total was later reduced to $25,000.
If the rental had been reduced to $217.01 on 5 July 2021, and continued at this rate, the calculation of the arrears would be substantially affected. The respondent submitted that the $217.01 was not, and never had been, an agreed variation of the rent but rather related to a Centrelink payment mechanism which allowed Centrelink to pay, with the applicant’s consent, the $217.01 as a part of the actual rental of $326.
The applicant said that the $217.01 was substantiated by a CustomerFirst document in which the $217.01 is listed as the amount to be paid by Centrelink for the period from 1 July 2022 until 14 July 2022. The respondent submitted that this document was no more than a statement of the mechanism I have referred to above.
The applicant responded that there were other documents to support his position. He first of all referred to a receipt provided by a Mr Adrian Cobb on 18 June 2021 which refers to a deduction of $217.01 and also to an email (Exhibit D) which attached the receipt sent by Mr Cobb to ACAT on 25 June 2021. Mr Cobb was the respondent’s Senior Housing Officer who would have had the authority to reduce the applicant’s rent.
The applicant said the $217.01 had been agreed with Mr Cobb as an interim measure pending resolution of a dispute between the parties. That dispute was never resolved, to the effect that the applicant was still paying the $217.01 per fortnight.
Exhibit D is difficult to understand. It does refer to $217.08 and also to a figure of $140.80 from Centrelink making a total of $357.88 per fortnight. The total is not consistent with the $326 and the statement of arrears of $14,653.80 as at 17 June 2021 is not consistent with the rental ledgers referred to by the respondent. I also note that if Centrelink was paying $140.80 this is perhaps inconsistent with the $217.01 being a Centrelink mechanical payment.
It is impossible for me to resolve the anomalies thrown up by the documents I have just referred to. The respondent’s legal representative faced the same quandary because she had not seen Exhibit D before it was produced in court in the hearing before me.
Whatever the fact of the matter is, the applicant does seem to have an argument that his rent was reduced to $217.01 from 5 July 2021. If correct then the claim for arrears will be affected.
The respondent, both in relation to the reduced rent, and generally, made the point that all of this material could have been put before ACAT prior to, or at, the original hearing on 3 April 2024 when the arrears were claimed. This is a valid point. However it should not be forgotten that the applicant is a self-represented person with mental health problems and to demand of him, as the respondent seemed to do in submissions, that he act with the same competency and efficiency as a lawyer, is inappropriate.
The applicant pointed to some other errors in the Presidential Member’s decision, some of which I accept are quite minor. For example at [24] the Presidential Member refers to the applicant’s “best case” being that “the arrears applied to his rent account at the commencement of the Occupation Agreement amounted to $413.24”. This figure arose from an oddity in the applicant’s rental account going back to 2014, even though he only became a tenant on 6 February 2017. An examination of the rental account suggests that the correct figure is $783.96.
The applicant referred me to [21] of the decision where the Presidential Member refers to payments of rent of “$346 per fortnight from the beginning of 2018 until the end of the rental statements he tendered to me.” The reference to the $346 was, as I understand the reasoning, indicative of the rent not being $217.01 per fortnight. In other words the $346 contradicted the applicant’s submissions. However, the rental statement that was tendered ends on 18 March 2019 which is well before the commencement of the asserted $217.01 on 5 July 2021. The rental statement simply has no bearing and does not, as suggested by the Presidential Member, contradict the applicant’s assertions.
In The Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 35, the ACT Court of Appeal emphasised that ACAT “as part of the mandatory procedures the ACAT must apply in exercising its functions, it must ‘observe natural justice and procedural fairness’: s 7(b) of the ACAT Act.” Although the current case is factually very different to the case that was being considered in the Court of Appeal, I do note this passage within [79]:
The ACAT was obliged to determine the issues which were before it by virtue of the application lodged by the Society and in exercising that jurisdiction, it was required to observe the rules of natural justice and fairness, including allowing the practitioner an opportunity to present evidence and argument on the question of penalty…
In my view the decision of 1 April 2025 does not recognise the applicant’s right to have been given the opportunity to present his case and does not accurately assess the reasons behind the applicant being absent from the hearing on 17 December 2024.
Conclusion and orders
Leave to appeal from the decision of 1 April 2025 must follow. As to costs the respondent pointed out that the applicant was self-represented and should only be entitled to his disbursements. The applicant said that, as a pensioner, he had been relieved of paying a filing fee and his only expenses were about $100 for a transcript and some expenses relating to travel. I think it appropriate to fix his costs at $150.
In the interests of both parties, it would be appropriate if the appeal could deal with as many of the outstanding issues as possible. Obviously this would depend on amendments to the appeal and the consent of the respondent.
As to the continuation of the matter I will place it before a Registrar for the making of any necessary procedural orders, such as a timetable.
I make the following orders:
(1) The applicant, Mr Adrian Riley, is given leave to appeal from the decision of the ACAT Appeal Tribunal made on 1 April 2025.
(2) The respondent is to pay the applicant’s costs of the application assessed in the sum of $150.
(3) The matter is listed before the Registrar in the Appeals Index List on 6 August 2025.
(4) The order vacating the stay made on 18 February 2025 is set aside.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Elkaim. Associate: Date: |
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