Verma v Reynolds (No 2)
[2019] ACAT 19
•7 December 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
VERMA & ANOR v REYNOLDS (No 2) (Civil Dispute) [2019] ACAT 19
XD 800/2018
Catchwords: CIVIL DISPUTE – procedural fairness – party refusing to participate in hearing – party insisting on being represented by a person contrary to an order of the Tribunal
Cases cited:Doughty-Cowell (Victoria Police) v Kyriazis [2018] VSCA 216
Verma & Anor v Reynolds [2018] ACAT 89
Verma & Anor v Reynolds [2019] ACAT 4
Tribunal:Senior Member A Anforth
Date of Orders: 7 December 2018
Date of Reasons for Decision: 5 February 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 800/2018
BETWEEN:
KAVITA VERMA
First Applicant
WILLIAM REES
Second Applicant
AND:
PATRICK LEO REYNOLDS
Respondent
TRIBUNAL:Senior Member A Anforth
DATE:7 December 2018
ORDER
The Tribunal orders that:
1.The respondent is to pay the applicant $25,161.99 immediately.
…………Signed…………
Senior Member A Anforth
REASONS FOR DECISION
1.This matter is a continuation of Verma & Anor v Reynolds, [2018] ACAT 89 and [2019] ACAT 4.
2.The applicants are homeowners in the Australian Capital Territory and the respondent is a builder who undertook renovations in their home. A dispute arose over the quality of the workmanship and whether the respondent was appropriately licensed and insured. The history of the dispute is set out in the above two decisions.
3.Mr Reynolds retained Mr Eric Polleycutt to do some of the renovation work and to represent him in the tribunal proceedings. Mr Polleycutt is not a legal practitioner (which is not a prerequisite to appear as a representative).
4.On 23 October 2018 an interim application was heard by Presidential Member McCarthy. The Presidential Member was critical of Mr Polleycutt’s conduct and set out his reasons at paragraphs 22 to 30 of the reasons for decision. An order was made that “Mr Eric Polleycutt is removed as the representative of the respondent and Mr Eric Polleycutt must not take any further part in the proceeding.”
5.The orders were read to the parties on the day and a copy of the orders was posted to the parties. The full reasons for the decision were published on 9 January 2019.
6.The matter was listed for hearing before the presently constituted Tribunal on 7 December 2018. The applicants appeared in person and Mr Reynolds appeared with Mr Polleycutt. Appearances were taken and Mr Polleycutt announced his appearance for the respondent.
7.The Tribunal raised the issue of the order made by the Presidential Member on 23 October 2018. Mr Polleycutt denied any knowledge of the order and said “I haven’t received it.”[1] He was shown a copy of the order and he then responded “these orders are under appeal at the moment.”[2]
[1] Transcript of proceedings 7 December 2018 page 2, line 30
[2] Transcript of proceedings 7 December 2018 page 2, line 44
8.It was not obvious to the Tribunal how it was that the orders were under appeal if they had never been received.
9.It was explained to Mr Polleycutt that the fact of an appeal does not automatically stay the order.[3]
[3] Transcript of proceedings 7 December 2018 page 3, line 5
10.Mr Polleycutt then said that he was a “substantial witness” and “participant” and if he could not be present the respondent would suffer prejudice.[4] He asserted that he was himself a builder upon whom the respondent had relied. He then announced that the respondent and he were leaving the Tribunal until such time as their appeal had been determined.[5]
[4] Transcript of proceedings 7 December 2018 page 3, lines 6-10
[5] Transcript of proceedings 7 December 2018 page 3, lines 13-15
11.Mr Polleycutt then informed the Tribunal that if any orders were made consequential on their walk out then those orders would be also be appealed. The Tribunal asked Mr Polleycutt to desist from attempting to threaten the Tribunal.[6]
[6] Transcript of proceedings 7 December 2018 page 3, line 33
12.The Tribunal then explained that the orders of the Presidential Member did not preclude Mr Polleycutt from being a witness for the respondent; the order was that he was not to take any part as a representative.[7]
[7] Transcript of proceedings 7 December 2018 page 3, lines 45-47
13.Mr Polleycutt then asserted that Mr Reynolds had a disability that prejudiced his capacity for self-representation. The Tribunal asked what the evidence was for that, at which point Mr Reynolds advised “my intention is that I’m not defending it myself … I’m not participating in this hearing.”[8] The Tribunal said to Mr Reynolds “I suggest that you do stay and that you participate. It’s been listed for hearing today and there’s been oodles of time for both parties to prepare.”[9]
[8] Transcript of proceedings 7 December 2018 page 4, lines 30-35
[9] Transcript of proceedings 7 December 2018 page 5, lines 17-19
14.The respondent and Mr Polleycutt conferred outside the Tribunal. Upon return, Mr Reynolds sought to challenge the validity of the orders of the Presidential Member and asserted prejudice arising from his intended reliance on Mr Polleycutt to conduct his case.[10] He was told “the order has been made. [The Tribunal is] bound by the order.”[11]
[10] Transcript of proceedings 7 December 2018 page 6, lines 4-9
[11] Transcript of proceedings 7 December 2018 page 7, line 35
15.The Tribunal informed Mr Reynolds “if you leave under these circumstances I have to assume that you’re not interested and there’s no defence that you wish to put to this claim.”[12]
[12] Transcript of proceedings 7 December 2018 page 7, lines 42-44
16.There followed a period of Mr Reynolds and Mr Polleycutt asserting that they had a defence, notwithstanding no evidence having been filed and served, but were awaiting the outcome of the appeal.
17.Mr Reynolds and Mr Polleycutt then rose and departed the Tribunal. As they did the Tribunal said to Mr Reynolds “you leave at your own peril.”[13]
[13] Transcript of proceedings 7 December 2018 page 8, line 41
18.There then followed discourse between the Tribunal and the applicants concerning whether they wished for default judgment to be issued and the proper amount, or whether they wished the matter adjourned. The applicants chose the former option and orders were made accordingly.
19.The Tribunal indicated it was satisfied that the applicants had adduced sufficient evidence to constitute a prima facie case.[14] The respondent did not file and serve any evidence in support of its case other than a statement of their denial of the claim.[15]
[14] Transcript of proceedings 7 December 2018 page 9, line 30
[15] Transcript of proceedings 7 December 2018 page 9, lines 20-30
20.The nature of any future appeal process was described to the applicants.
21.The respondent has since asked for reasons for the Tribunal’s decision of 7 December 2018.
22.The order was made on 7 December 2018 because:
(a)the matter had been listed for hearing and the parties had ample time to prepare;
(b)the respondent had not complied with orders to file and serve his evidence;
(c)the applicants had so complied and were ready to proceed;
(d)the respondent refused to participate and staged a walk out;
(e)the respondent was taking his lead from Mr Polleycutt;
(f)Mr Polleycutt was not emotionally capable to act as a competent representative for the respondent;
(g)Mr Polleycutt was belligerent and obstructive and appeared determined to delay matters; and
(h)the respondent was warned of the consequences of his actions in staging the walk out.
23.The Tribunal adopts the comments of the Presidential Member at paragraph 20 of Verma & Anor v Reynolds [2019] ACAT 4 concerning the importance of timeliness and efficiency in the administration of justice.
24.The Tribunal notes and applies the ratio of the Victorian Court of Appeal in Doughty-Cowell (Victoria Police) v Kyriazis [2018] VSCA 216 concerning the conscious decision of a party to refuse to participate in a hearing. The Court provided the following summary of the relevant principles (at paragraphs 1 to 8):
Ensuring a fair hearing for an unrepresented litigant can present formidable difficulties for a court. Their needs, and their attitudes towards the court, vary across a wide spectrum. At one end of the spectrum, the litigant may be inarticulate, or anxious, or distressed, and in need of considerable assistance in order simply to understand the process in which he/she is involved. At the other end, there are litigants who are variously articulate, strong-minded, stubborn, dismissive of legal advice and, very often, unwilling to accept judicial authority.
The obligation of a court to ensure a fair hearing is undoubted. The content of that obligation varies, however, with the circumstances of the case and ― in this context ― according to the particular capabilities and attitudes of the self-represented litigant.
The first respondent, Mr Kyriazis, represented himself on his appeal to the County Court against his convictions on two minor traffic offences. His conduct soon revealed that he fell towards the articulate and assertive end of the spectrum. As will appear, he was ― in pre-hearing correspondence ― provocative and confrontational and, from the first moment of the hearing, refused to accept the judge’s ruling on the straightforward question of whether he could record the proceeding. As explained below, the judge ruled that Mr Kyriazis could make a sound recording but not a video recording. This should not have troubled Mr Kyriazis, as he did not have a video recorder with him.
The hearing which followed was remarkable for the level of hostility, anger and aggression directed by Mr Kyriazis (and some of his supporters) towards the Court. The judge for the most part remained calm and patient, although ― unsurprisingly ― he did occasionally raise his voice when requesting that Mr Kyriazis keep quiet.
As will appear, Mr Kyriazis at an early stage announced to the judge that he would not participate in his own County Court appeal. The judge patiently proceeded to call on Mr Kyriazis’s subpoenas, examine the documents and release them to Mr Kyriazis. The evidence in the prosecution was led but, apart from occasionally objecting to what he described as leading questions, Mr Kyriazis refused to participate.
It was the judge himself who elicited, during the informant’s evidence, that the period during which Mr Kyriazis had refused to produce his licence was only five minutes. Unsurprisingly, the judge expressed his disapproval of the charge having been laid for what was ‘no more than a technical breach’. In the event, although he found the charges proved and convicted Mr Kyriazis, he discharged him.
Nevertheless, Mr Kyriazis filed an application for judicial review, contending that he had been denied procedural fairness. The judge at first instance upheld that complaint, concluding that the judge had not accorded Mr Kyriazis a fair hearing and was guilty of ostensible bias.
For reasons which follow, we respectfully disagree. As already indicated, this was not a case where the judge was obliged to take extra measures to provide assistance to Mr Kyriazis. On the contrary, it was Mr Kyriazis who ― for no good reason ― decided to withdraw from his own appeal and who thereafter engaged in what can only be described as disgraceful conduct towards the judge. There was nothing more his Honour could have done to ensure a fair hearing. Accordingly, the appeal must be allowed.
25.The Court went on to say (at paragraphs 63 to 75):
In the matter of [Roberts v Harkness [2018] VSCA 215] … we discussed the fundamental obligation of every court to ensure a fair hearing for the parties before it. We made the following points:
(1)Fairness is not an abstract concept. When one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
(2)The practical question is whether the party in question was given a reasonable opportunity to present his or her case and advance submissions in support, and to know the case to be advanced by the opposing party and to make submissions in opposition to that case.
(3)What is reasonable for this purpose will necessarily depend upon the circumstances. Matters to be taken into account will include:
·the nature and complexity of the issues in dispute;
·the nature and complexity of the submissions which the party wishes to advance;
·the significance to that party of an adverse decision; and
·the competing demands of the time and resources of the Court.
(4)The question to be asked is whether the party (represented or unrepresented) was given a reasonable opportunity to advance his or her own case and to be informed of and respond to the opposing case.
(5)The key difference with respect to unrepresented litigants is the need for the Court to assess the capacity of an unrepresented person to formulate, and articulate, the case which they wish to present. As we said:
The assessment of capability will typically be based on any written documentation which the litigant has filed and, where there is an oral hearing, on the quality of the litigant’s verbal communication with the Court. Very often, the judicial officer will be able to assess relatively quickly whether, and to what extent, the litigant will need assistance, either from the Court or from a third party, in order for the Court to understand the litigant’s case. -
…
In this Court, counsel for Mr Kyriazis submitted that a judge’s obligation to provide assistance was unaffected by any unwillingness on the part of a litigant in person to receive such assistance. That submission must be rejected. As was said by Mazza JA in O’Connell v The State of Western Australia:
Being unrepresented is not a free pass to misbehave, flout the legal or procedural rules, ignore the law of evidence or to treat the trial judge and witnesses with disrespect or contempt. Where an unrepresented [person] acts or attempts to act in any of these ways, a trial judge must fairly and, if necessary, firmly deal with such behaviour. The extent to which a trial is regarded as fair will be examined in the light of [the unrepresented person’s] own conduct
…
In the present case, Judge Chettle provided Mr Kyriazis with all of the assistance he could reasonably expect. Notwithstanding Mr Kyriazis’s continued rude and disrespectful behaviour to the judge, the judge maintained a calm (if, at times, frustrated and annoyed) demeanour and continued throughout the hearing to attempt to engage with Mr Kyriazis and inform him about the process and of his options from time to time.
Mr Kyriazis was not a naïve litigant. He subpoenaed documents; he was obviously aware of the order of evidence; and he made a conscious decision to withdraw from the proceeding, making repeated references to his intention to go to ‘the Prothonotary’ in order to challenge the conduct of Judge Chettle in another forum. While Mr Kyriazis demonstrated misperceptions about particular matters from time to time ― for example, that he needed the judge’s leave to approach the Prothonotary ― there is nothing in the transcript that suggests he was in any way uninformed about the essential elements of the process he was engaged in. On the contrary, he was well aware of his right to lead evidence and to cross-examine, and he showed an obvious familiarity with procedure when he purported to object to leading questions.
………………………………..
Senior Member A Anforth
HEARING DETAILS
FILE NUMBER:
XD 800/2018
PARTIES, APPLICANT:
Kavita Verma and William Rees
PARTIES, RESPONDENT:
Patrick Leo Reynolds
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member A Anforth
DATES OF HEARING:
7 December 2018
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