Riley v St Vincent De Paul Society Canberra/Goulburn (Appeal) - [2025] ACAT 16

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

RILEY v ST VINCENT DE PAUL SOCIETY CANBERRA/GOULBURN (Appeal) [2025] ACAT 16

AA 26/2024 (RT 1252/2023)

Catchwords: APPEAL – withdrawn application for removal to Supreme Court – recusal principles – interim applications dismissed – whether service via email valid – consideration of transaction under Electronic Transactions Act 2001 – consideration of consent to electronic communication of notice – appeal dismissed – costs reserved
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 83
Electronic Transactions Act 2001 ss 3, 7, 8
Residential Tenancies Act 1997 s 83

Cases cited:Bailey v McCrae & Ors [2023] ACAT 51
Ebner v The Official Trustee in Bankruptcy [2000] HCA 63

Tribunal:Acting Presidential Member G Curtin SC

Date of Orders:  17 December 2024
Date of Reasons for Decision:      6 March 2025
Date of Publication:  14 March 2025
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 26/2024

BETWEEN:

ADRIAN RILEY
Appellant

AND:

ST VINCENT DE PAUL SOCIETY CANBERRA/GOULBURN
Respondent

APPEAL TRIBUNAL: Acting Presidential Member G Curtin SC
DATE:17 December 2024

ORDER

The Tribunal orders that:

Appeal dismissed.
Vary order 2 made by the original tribunal on 30 May 2024 by substituting the date 24 January 2025 for the date 30 May 2024.
Vary order 4 made by the original tribunal on 30 May 2024 by substituting the date 24 January 2025 for the date 20 June 2024.
Direct the Registrar to reissue the orders of the original Tribunal dated 30 May 2024 in accordance with the above.
Dismiss the appellant’s interim applications filed 21 November 2024.
Costs reserved (and to be dealt with on the papers).
Dismiss the respondent’s interim application filed on 3 October 2024.
…………………Signed……………..
Acting Presidential Member G Curtin SC

REASONS FOR DECISION

Ex tempore (revised)

Recusal

In this appeal, AA 26 of 2024, the appellant filed an interim application on 21 November 2024 that I should recuse myself from hearing this appeal and that the matter be removed to the Supreme Court. The stated reason, as set out in the application, was as follows:
The acting presidential member made a serious error, failing in his obligations and duties under the law by failing to remove the matter to the Supreme Court previously. It has just come to my attention that section 83 of the Act says that if both parties apply for or agree to the removal of the matter to the Supreme Court, then the tribunal must order the removal.
On a previous occasion before the member, both parties undisputably agreed to the removal, at which point, under the Act the member should have then ordered the removal, however, he not only failed to do so but has made it clear by his comments that he was going to be inclined to remove it to the Supreme Court and subsequently went on to inappropriately convince me into withdrawing my application for removal without in any way indicating that the Act required him to have removed it.
These actions by the member not only indicate the clear possibility of bias, especially when taking into consideration things like today's alleged incorrect ruling that had no basis in the facts at hand, constitute an egregious breach of authority and his lawful obligations with the tribunal now has an obligation to set right to take formal action against the member in question 4.
In short, and in terms of the application for removal (mentioned above), the appellant had expressly agreed to withdraw that application, and the respondent did not object to (as distinct from jointly applying for) the removal to the Supreme Court.[1]
[1] See the terms of s 83(1) of the ACT Civil and Administrative Tribunal Act 2008
The procedural history was that the application for removal to the Supreme Court was initially before another member of the tribunal before coming before me.
On 29 October 2024, amongst other things, Mr Riley informed me that he had made an application for Legal Aid, and on that day, I proposed to set the appeal down for hearing before myself. I said, “Well, I'm a bit inclined then to set the appeal down for hearing before me in two months’ time.” Mr Riley replied, “I would be happy with that.”
I later turned to Mr Riley's application to transfer to the Supreme Court, and I said, “My recollection, Mr Riley, your application was to transfer to the Supreme Court?”. To his answer, “Yes”, I then said, “Should we dismiss that application?”. Mr Riley replied, “Yes. At this point, I’m happy for you to do that under the advice of the lawyers.”
I then asked the legal representative for the respondent whether the respondent consented to Mr Riley’s application to transfer the appeal to the Supreme Court. I was told the legal representative did not have any instructions. I then said, “All right. With Mr Riley’s consent, I'll dismiss his … interim application.”
The relevant principles in relation to recusal were set out by the High Court in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 (Ebner). Ebner set out what has become known as the double might test, that is, whether a reasonable lay observer might think that a tribunal officer might not bring an independent mind to bear on the issues in dispute. I am, of course, talking about apprehended bias. None of the matters set out in Mr Riley's interim application satisfy me on either limb of that test and he has not appeared today to argue in support of that application.
The case has been case managed. Mr Riley has a tendency to be loquacious and to interrupt both myself and the respondent’s legal representatives, and at times I have asked him to desist from doing so and, on one occasion, I had to mute his remote audio in order to conduct the proceedings with a degree of dispatch. Mr Riley, once I unmuted him, declined to reappear.
In any event, no matters have been advanced today to satisfy myself that I should decline to hear this matter on the ground of apprehended bias, and as there is no actual bias, I therefore dismiss that interim application.

The appeal

This is an appeal from an ex tempore decision given on 30 May 2024 in proceedings RT 1252 of 2023. It concerned two issues: one was the amount of outstanding rent and the other was whether there had been valid service of a notice to terminate. The alleged outstanding rent at the time of the hearing exceeded the jurisdictional limit of the tribunal, and the respondent abandoned that excess of a little under $4,000 and claimed $25,000 rent. The issue in relation to the notice to terminate was whether the service of it by email on 17 October 2023 was valid.
Before the Original Tribunal, the respondent contended that the rental agreement between it and the appellant was an occupancy agreement rather than a residential tenancy agreement. On that issue, the Original Tribunal found in favour of the appellant and there is no appeal from that finding.
The respondent contended that the Original Tribunal was able to correct any defect in service pursuant to the terms of then section 83(1) of the Residential Tenancies Act1997 as it was as at 17 October 2023, but the Original Tribunal held that it could not correct a defect under that section and there is no appeal from that holding.
However, the Original Tribunal found in favour of the respondent pursuant to section 8 of the Electronic Transactions Act 2001 (the Act).
In that Act, section 8(1) provides:
If, under a territory law, a person is required to give information in writing, that requirement is taken to have been met if:
(a)     the person gives the information by means of an electronic communication; and
(b)     at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
(c)     the person to whom the information is required to be given consents to the information being given by means of an electronic communication.
Subsection (4) of section 8 says:
This section applies to a requirement or permission to give information, whether the expression give, send or serve, or any other expression, is used.
Subsection (5) says:
For this section, giving information includes, but is not limited to, the following:
...
(c) giving, sending or serving a notification.
In the dictionary to the Act, ‘consent’ is defined as follows:
Consent includes consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with.
‘Information’ is defined as:
Information means information in the form of data, text, images or sound.
The term ‘transaction’ is defined to mean:
Transaction includes:
...
(b) any… notice… that the parties are required to make or choose to make in relation to the … performance of a contract, agreement or other arrangement;
I have left out some words from the subsection for ease of reading in the context of the issues in dispute in this case.
The Original Tribunal held that:
(1) The Electronic Transactions Act applied to this particular case for four reasons, namely, that the Act was expressly intended to apply to ACT legislation notwithstanding individual Acts may contain specific requirements for transactions and communications to be made in writing;
(2) The Act was enacted after the Residential Tenancies Act and regulation 5 of the Residential Tenancies Regulation 1998;
(3) The Electronic Transactions Act in section 6 provides that regulations could be made to exempt legislation from the operation of the Electronic Transactions Act but no such regulations had been made; and
(4) That the Legislation Act contains an exemption where particular laws contain particular modes for service but the Electronic Transactions Act does not contain any express exemptions.
I see no error in the Original Tribunal’s holding that the Act applies to the service of a notice to vacate under the Residential Tenancies Act 1997. The objects of the Act, set out in section 3, include to recognise the importance of the information economy to the future economic and social prosperity of Australia, to facilitate the use of electronic transactions, and to promote business and community confidence in the use of electronic transactions.
Section 7(1) of the Act provides:
For a territory law, a transaction is not invalid because it took place wholly or partly by means of 1 or more electronic communications.
The issue in this case is whether a notice to vacate was invalid because it took place (that is, it was served) electronically rather than in person or by post.
The aforementioned definition of ‘transaction’, in my view, covers the service of a notice to vacate under a residential tenancy agreement because it is a notice required to be made in relation to the performance of a contract or agreement. A residential tenancy agreement is a form of contract or agreement governed to an extent by statute. The performance aspect of that contract or agreement would include the option under allowable circumstances to bring the agreement to an end.
In terms of the requirements of section 8, there was no dispute that the notice to vacate was communicated to Mr Riley via his Gmail email address and there was no dispute before the Original Tribunal that he did receive it. The Original Tribunal found that Mr Riley's Gmail email account fell within the terms of section 8(1)(b), that is, that it was reasonable to expect that the information would be readily accessible so as to be usable for subsequent reference. There is no appeal from that finding.
The real issue in dispute before the Original Tribunal was consent and whether section 8(1)(c) was satisfied.
The issue of consent under that Act has previously been considered by the tribunal in Bailey v McCrae [2023] ACAT 51. In that decision, the senior member referred to the explanatory memorandum to the Electronic Transactions Bill 2000, which included a statement to the effect that the definition of consent set out in the bill made clear that consent could be inferred from a person's conduct and that it was intended to ensure that express consent was not required prior to every electronic communication.
The senior member noted there was limited case law on the issue and none was referred to him, however, the member found that any consent must be present at or before the communication in question, which seems to me to be both logically correct and correct on the proper construction of the Act. Needless to say, subsequent conduct might throw light on the question of prior consent but the factual issue in dispute is whether there was consent existing at the time of the relevant notice.
In this case, a notice to remedy was emailed to Mr Riley about a month prior to the emailing of the notice to terminate. The notice to remedy was emailed to Mr Riley on or about 14 September 2023 and Mr Riley replied to that email within 17 minutes (taking issue with the matters raised therein).
The email from the respondent of 14 September said:
Dear Mr Riley,
Please find attached a copy of a notice to remedy which has been forwarded to you by registered post.
Mr Riley replied 17 minutes later and said:
I will see you in the tribunal as this is clearly retaliation by your organisation due to my having filed a formal complaint the other day about St Vincent de Paul and Amelie Housing. As for being in breach of the Residential Tenancies Act, I would remind you that I'm still waiting on repairs that your organisation was (sic) advised of the need for over five years ago.
I would remind you that as your organisation and its Amelie Housing have failed to take action regards to multiple notices to remedy that have been served upon you over the years, and I would therefore argue that your complete refusal to take any action in response nullified any claim you have to rent as you have clearly failed to provide the services as required of you under your service funding agreement and as such, the only entity that would have claim to rent for the property would be Housing ACT as the only services provided have been by them.
Thank you.
The reason for quoting that email is to demonstrate that there was no objection taken by Mr Riley to the service of the notice to remedy on him by email, and at a time when the postal version of that notice had not yet then arrived. Therefore, by his conduct, Mr Riley took no exception to the notice to remedy being communicated to him electronically.
There was no dispute in the Original Tribunal that that notice to remedy had been served both electronically and by email, and the Original Tribunal’s finding of fact was that Mr Riley’s response to the email of 17 September 2023 was consent that could be reasonably inferred from Mr Riley’s conduct, namely being the reply to that email.
I note that Mr Riley, despite there being directions from this Appeal Tribunal for him to file submissions in support of his appeal, declined to do so, nor does his amended application to appeal set out any alleged errors made by the Original Tribunal in arriving at its finding of fact. I also can see no errors.
The Original Tribunal relied upon the conduct of Mr Riley in replying to the email of 17 September 2023 from the respondent in finding, pursuant to section 8, that Mr Riley had consented to receive the notice to terminate. It was served by email on 17 October 2023, providing 20 days’ notice to vacate, and I note that Mr Riley replied to that email (serving the notice to vacate) about 23 minutes later. In that email, he said, “In reply to your notice to vacate received today, I wish to point out the following issues making it invalid.” He then set out three matters, but nowhere in his email did he take issue with the service of the notice to vacate.
The contents of that email, it seems to me, corroborate or further support a conclusion of fact that Mr Riley consented to receiving notifications from the respondent electronically. That is, the fact that he did not raise any complaint about service in that email indicates to me that Mr Riley’s state of mind prior to receipt of the email was one of consent to receiving notices electronically, pursuant to the Act. Therefore, in the absence of any written or oral submissions by Mr Riley, and in the absence of his appearance to argue his appeal and doing the best I can in examining the reasons of the Original Tribunal, I can see no error.
In relation to claims made that the Original Tribunal erred in terms of rent, I am in a similar position, in that although Mr Riley has made a number of assertions that the rent was over-calculated, or matters of that sort, he has not provided any submissions, any references to evidence, or any matters of that sort which would allow me to identify any error made by the Original Tribunal.
The Original Tribunal accepted into evidence a rental ledger which was a contemporaneous business record of the respondent. There does not seem to me to be any utility in this decision to set out the Original Tribunal’s reasons in the absence of knowing what it is about those reasons which Mr Riley asserts was in error.
Needless to say, the Original Tribunal’s reasons are set out in the transcript of the oral reasons for decision of 30 May 2024.
I should note here that in the amended application for appeal filed on 15 October 2024, Mr Riley gave five reasons for appeal and sought four orders.
His first reason for appeal was that he did not consent to electronic service of documents. I’ve dealt with that issue above.
His second reason was that his emails of 14 and 24 September did not contain and did not constitute consent to electronic service of documents. Again, I've dealt with that matter above.
His third reason for appeal was, he said that he wanted “to appeal the amount of the rental arrears order as it was incorrectly calculated”. Other than that bald assertion, no other reasons are given.
He then refers in reasons 4 and 5 to alleged conduct of an officer of the respondent and the respondent's lawyers. There is no substance to those allegations.
The reasons for appeal 4 and 5 were to the effect that a “without prejudice” email sent by the respondent contained an unlawful and illegal demand. It clearly was not, and clearly the email could not be tendered because “without prejudice” privilege is a joint privilege which can only be waived with the consent of both parties.
The fifth reason for appeal was to the effect that that the “without prejudice” offer to resolve issues between the parties was deliberately withheld from the Original Tribunal. I reject that allegation. It was clearly inappropriate for that email to have been placed before the Original Tribunal, and rather than there being any misconduct in withholding it, the respondent’s legal advisers acted properly in not tendering that email to the Original Tribunal.
In the orders sought in the amended application for appeal, Mr Riley sought an order that the Original Tribunal orders be set aside and that the respondent’s application before the Original Tribunal be dismissed. Neither of those orders will be made as this appeal will be dismissed.
Mr Riley then sought further orders that the respondent be prohibited from any further applications to the tribunal and sought an order that an officer of the respondent be referred to an unidentified organisation for criminal investigation. There is no substance to either order.
The result of what I have said above is that I will order that the appeal be dismissed.

Orders

I make the following orders:
(a)Appeal dismissed.
(b)I vary order 2 made by the Original Tribunal on 30 May 2024 by substituting the date 24 January 2025 for the date 30 May 2024.
(c)I vary order 4 made by the Original Tribunal on 30 May 2024 by substituting the date 24 January 2025 for the date 20 June 2024.
(d)Direct the Registrar to reissue the orders of the Original Tribunal dated 30 May 2024 in accordance with the above.
(e)Dismiss the appellant’s interim applications filed 21 November 2024.
(f)Costs reserved (and to be dealt with on the papers).
(g)Dismiss the respondent’s interim application filed on 3 October 2024.
………………………………..

Acting Presidential Member G Curtin SC

Date of hearing:	17 December 2024
Applicant:	No appearance
Solicitor for the Respondent:	C Sawley, Hicksons Lawyers