Roberts v Morgan & Anor (Appeal) - [2017] ACAT 70

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ROBERTS v MORGAN & ANOR (Appeal) [2017] ACAT 70

AA 14/2016
Catchwords: APPEAL – civil dispute – whether ‘set off’ can be relied upon to bring a claim within the Tribunal’s jurisdictional limit – process adopted at hearing - whether the Tribunal’s failure to allow cross-examination of witnesses amounted to a lack of procedural fairness – Tribunal erred in failing to advise parties of process hearing was to take – jurisdictional limit increased during the course of the matter – hearing of appeal as new application

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 18, 30, 21, 22, 82
Australian Consumer Law (Cth) ss 54, 55, 64, 259, 260
Evidence Act 2011 ss 21, 27
Legislation Act 2001 ss 256
Magistrates Court Act 1930 s 237, 284 (repealed)

Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedure Rules 2009 (no 2) r 21
Court Procedure Rules 2006 r 3743 (repealed)

Cases cited:B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219
Gibb Australia Pty Limited v Cremor Pty Limited (1992) 108 FLR 129
Kioa v West (1985) 159 CLR 550
Mansour v Dangar [2017] ACAT 49
Morgan & Anor v Roberts [2016] ACAT 24
The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207

Tribunal:                   Presidential Member M-T Daniel
Date of Orders:  15 September 2017
Date of Reasons for Decision:         15 September 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          AA 14/2016

BETWEEN:
GLENN ROBERTS
Appellant

AND:
DAVID & JANETTE MORGAN
Respondents

TRIBUNAL:Presidential Member M-T Daniel

DATE:15 September 2017
ORDER

The Tribunal orders that:

1.The orders of 27 January 2016 are set aside.
2.Proceedings XD15/800 and XD15/824 are to be heard together.
3.In relation to matter XD15/800 judgment for Mr and Mrs Morgan.
4.In relation to matter XD15/824 judgment for Mr Roberts.
5.Mr and Mrs Morgan are to pay to Mr Roberts the sum of $3,317.00, being comprised of $9,796.00 found owing by them on XD15/824 less $6,479.00 payable by Mr Roberts to them on XD 15/800.

………………………………..
Presidential Member M-T Daniel

REASONS FOR DECISION

Introduction

1.On 27 January 2016 the Tribunal heard and decided two competing civil dispute applications and ordered that Glenn Roberts (the appellant) pay to David and Janette Morgan (the respondents) the amount of $2641.00 plus the filing fee of $140.00.
2.Mr Roberts has appealed from the orders made on those applications.
3.For consistency and to avoid confusion in these reasons Mr Roberts will be referred to as the appellant and David and Janette Morgan will be referred to as the respondents, including when referring to the decision subject to appeal.
4.The issues raised on this appeal are:
(a)whether the doctrine of ‘set-off’ can be utilised to reduce a claim to below the Tribunal’s jurisdictional limit, when the ACT Civil and Administrative Tribunal Act 2008 does not expressly provide that this may occur;
(b)whether the Tribunal’s failure to allow the appellant to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] ACAT 70
Decision Date: 15 September 2017

CaseChat Overview and Summary

In the matter of Roberts v Morgan & Anor (Appeal), the respondents, Mr and Mrs Morgan, appealed against the decision of the Tribunal to dismiss their claim. The appellant, Mr Roberts, cross-appealed against the Tribunal’s decision to award damages in favour of Mr and Mrs Morgan. The dispute centred around whether the respondents’ claim was within the jurisdictional limit of the Tribunal and whether the Tribunal had failed to provide procedural fairness during the hearing. The matter was heard in the Supreme Court.

The central legal issues before the court were whether the set-off could be used to bring the respondents’ claim within the jurisdictional limit of the Tribunal, whether the Tribunal’s failure to allow cross-examination of witnesses amounted to a lack of procedural fairness, and whether the Tribunal erred in not advising the parties of the process the hearing was to take. Additionally, the court had to consider the impact of the jurisdictional limit increasing during the course of the matter and the appropriate way to hear the appeal.

The court held that the Tribunal had erred in law by not allowing the respondents to set-off their debt against the appellant’s claim. The court also found that the Tribunal’s failure to allow cross-examination of witnesses amounted to a lack of procedural fairness. Furthermore, the court held that the Tribunal had not adequately advised the parties of the process the hearing was to take, which amounted to a failure in procedural fairness. The court held that the appeal should be heard as a new application due to the increase in the jurisdictional limit during the course of the matter. The court set aside the orders of 27 January 2016 and ordered that the proceedings be heard together. The court found in favour of the appellant in one matter and in favour of the respondents in the other matter, ordering the respondents to pay the appellant the sum of $3,317.00.

Orders

Orders of the court

1. The orders of 27 January 2016 are set aside.

2. Proceedings XD15/800 and XD15/824 are to be heard together.

3. In relation to matter XD15/800 judgment for Mr and Mrs Morgan.

4. In relation to matter XD15/824 judgment for Mr Roberts.

5. Mr and Mrs Morgan are to pay to Mr Roberts the sum of $3,317.00, being comprised of $9,796.00 found owing by them on XD15/824 less $6,479.00 payable by Mr Roberts to them on XD 15/800.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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