Wicks & Anor v The Hurst-Meyers Charity Ltd ABN 69 6111 166 119; the Hurst-Meyers Charity Ltd ABN 69 6111 166 119 v Stevens & Anor (Appeal)
[2020] ACAT 64
•25 August 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WICKS & ANOR v THE HURST-MEYERS CHARITY LTD ABN 69 6111 166 119; THE HURST-MEYERS CHARITY LTD ABN 69 6111 166 119 v STEVENS & ANOR (Appeal) [2020] ACAT 64
RT 851/2018
RT 859/2018
Catchwords: APPEAL – application for appeal against a Tribunal decision refusing an application to appeal out of time against a decision of Original Tribunal – application for appeal lodged out of time – whether the Tribunal has power to hear the application for appeal against the Tribunal’s decision – whether section 79(3) of the ACAT Act 2008 applies to such an application for appeal – whether, if the Tribunal has that power, leave should be granted to appeal out of time – principles to be considered in exercising discretionary power
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 9, 24, 30, 78,79, dictionary
Legislation Act 2001 ss 8, 10, 13, 151C, dictionary
Residential Tenancies Act 1997 s 86
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedural Rules 2020 rr 38, 92, 93, 94
Cases cited:Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7
Commissioner for Social Housing v Williams [2017] ACAT 53
Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56
Doughty-Cowell v Kyriazis [2018] VSCA 216
GP v McKenzie and Ors [2018] ACAT 96
Hurst-Meyers v Aulich Civil Law Pty Ltd ACN 155 746 777 [2020] ACAT 56
Hussain v Farhmand [2017] ACAT 107
Jackamarra v Krakouer [1998] HCA 27
Kioa v West [1985] HCA 81 at [34]
Kostov v The Society of St Vincent dePaul PtyLtd [2020] ACTCA 38
Legal Practitioner v Law Society of the ACT [2016] ACTSC 203
Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1Polleycutt v Aldcroft [2019] ACTSC 174
Reynolds v Powley & Anor [2020] ACAT 7
The Legal Practitioner v Council of the Law Society of the Australian Capital Territory (Stephen Stubbs) [2010] ACAT 19
Walls v Coutts [2019] ACAT 104
Wicks & Anor v The Hurst-Meyers Charity [2019] ACAT 92
Tribunal: President G Neate-AM
Date of Orders: 25 August 2020
Date of Reasons for Decision: 25 August 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL RT 851/2018
BETWEEN:
KEIRA WICKS
TRENT STEVENS
Applicants
AND:
THE HURST-MEYERS CHARITY LTD ABN 69 6111 166 119
Respondent
RT 859/2018
THE HURST-MEYERS CHARITY LTD ABN 69 6111 166 119
Applicant
AND:
TRENT STEVENS
KEIRA RENAE STEVENS (AKA) WICKS
Respondents
TRIBUNAL: President G Neate-AM
DATE:25 August 2020
ORDER
The Tribunal orders that:
Leave to appeal out of time against the decision of Presidential Member Daniel on 21 April 2020 is refused.
……………………….
President G Neate AM
REASONS FOR DECISION
Introduction
The present proceedings are the next stage in a process by which The Hurst-Meyers Charity Limited ABN 69 611 166 119 (the Charity) seeks to appeal the decision of the ACT Civil and Administrative Tribunal (the Original Tribunal) that the Charity pay Keira Wicks and Trent Stevens (the occupants), who occupied cottage premises under a tenancy agreement with the Charity, the sum of $2,500.[1]
[1] Wicks & Anor v The Hurst-Meyers Charity [2019] ACAT 92. The Original Tribunal referred to the applicants as ‘the occupants’ so that term is used here for consistency.
These proceedings involve an application, lodged outside the prescribed appeal period, to appeal against the decision of a differently constituted Tribunal refusing to grant the Charity leave to appeal out of time against the decision of the Original Tribunal. This stage in the proceedings is focussed on issues around the making of interlocutory orders by the differently constituted Tribunal.
The resolution of one of those issues involves considering whether the Tribunal has the power to make the orders sought by the Charity. To understand how that issue has arisen, it is necessary to outline briefly the chronology of events following the making of orders by the Original Tribunal.
Chronology of events
On 16 October 2019, the Original Tribunal released its decision in Wicks & Anor v The Hurst-Meyers Charity and ordered that the Charity pay the occupants $2,500 for breaches of their quiet enjoyment of the premises.
On 9 December 2019, the Charity lodged an application for leave to appeal out of time against that decision, together with an application for appeal.
The hearing of the application for leave to appeal out of time was listed for 20 January 2020. The hearing, which commenced before Presidential Member Daniel, was adjourned so that the Charity could file an authority for Ralph Hurst-Meyers to represent it in the proceedings. The hearing resumed on 20 April 2020. The Charity was represented by Mr Hurst-Meyers, the chairman of the board of the Charity.
On 21 April 2020, Presidential Member Daniel delivered orally her reasons for decision and made an order refusing an extension of time to appeal. The order was sent to the parties by email on 22 April 2020.
On 25 May 2020, Mr Hurst-Meyers, on behalf of the Charity, lodged an application for appeal against the decision of 21 April 2020. The application sought orders that the original orders be set aside, the appeal be reheard, and compensation be paid to the Charity. It also sought interim orders that the decision appealed against be stayed and that the appeal be allowed to go forward.
Although there was no application for leave to appeal out of time, on 2 June 2020, the Tribunal registry sent a notice of hearing of a request to extend time to appeal to each party. It noted that the matter had been listed to consider:
(a)whether this application may proceed to a hearing in the Tribunal; and
(b)if it may proceed to hearing, whether the applicant should be granted an extension of time in which to appeal.
The hearing occurred on 11 June 2020. These reasons for decision concern the issues considered at that hearing.
The issues
There are potentially two questions for the Tribunal to answer:
1.Does the Tribunal have power to hear and determine an appeal against the decision of the Tribunal on 21 April 2020 that the application of 9 December 2019 for an extension of time to appeal the decision of the Original Tribunal is refused?
2.If the answer to question 1 is yes, should leave be granted to the Charity to appeal out of time against the decision of the Tribunal on 21 April 2020?
In deciding the answer to question 2, it will be necessary to consider the prospects of success of an appeal against the decision of the Tribunal on 21 April 2020.
Can the Tribunal hear and determine an appeal against a decision not to grant leave to appeal out of time?
Submissions
Mr Hurst-Meyers submitted, on behalf of the Charity, that the Tribunal has power to review its own decisions including the decision of Presidential Member Daniel on 21 April 2020. He relied on section 79 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) and rules 92, 93 and 94 of the ACT Civil and Administrative Tribunal Procedural Rules 2020 (the ACAT Rules). He also referred to Practice Notes 1, 2, 3 and 4.[2]
[2] Transcript of proceedings 11 June 2020 page 5. Practice Note 1 of 2020 (Communicating with the Tribunal), Practice Note 2 of 2020 (Adjournment), Practice Note 3 of 2020 (Taking part by telephone) and Practice Note 4 of 2020 (Applications made by utility) are not relevant to these proceedings.
Section 79 of the ACAT Act provides that if the Tribunal has decided an application, a party to the “original application” may, by application, appeal the decision to the Tribunal on a question of fact or law.
Rule 92 prescribes the form that an application for leave to appeal within the Tribunal must take, what an application must contain and what documents and payment must accompany the application. According to Mr Hurst-Meyers he used the approved form, set out the errors in the decision appealed against, set out the orders sought and attached the orders of the Tribunal in the original proceedings.[3]
[3] Transcript of proceedings 11 June 2020 page 8. The orders were not attached to the application. See [61] below.
Rule 93 sets out the ways in which an appeal within the Tribunal may be lodged. Mr Hurst-Meyers stated that he lodged the application by email.[4]
[4] Transcript of proceedings 11 June 2020 page 9
Rule 94 provides that an application for appeal “within the Tribunal” must be lodged no later than 28 days after the day the orders of the Tribunal in the “original application” were made, or “any further time that the tribunal allows.” Mr Hurst-Meyers submitted that the Charity’s application for appeal was made in time because he was told there was no time limit to appeal out of time.[5]
[5] Transcript of proceedings 11 June 2020 pages 9, 17, 19
After a short break in the hearing, and apparently after seeking the advice of counsel during that break, Mr Hurst-Meyers submitted that the application for leave to appeal out of time (which was heard and decided by Presidential Member Daniel) was an “original” application. Consequently, he submitted, section 79(3) of the ACAT Act applied and the Tribunal has jurisdiction to hear an internal appeal against that decision.[6]
[6] Transcript of proceedings 11 June 2020 pages 42-43, 48
Mr Faulder for the occupants submitted that the application heard by Presidential Member Daniel was not an “original” application, but an interlocutory application involving a procedural issue. The originating application was the application commenced by the occupants some time ago. On that basis, the Tribunal does not have jurisdiction to hear the Charity’s application for appeal against the decision of Presidential Member Daniel.[7] Consequently, even if the Charity were to be granted leave to appeal out of time against the decision of Presidential Member Daniel, that would be of no benefit to the Charity because the Tribunal lacks the power to make the order sought by the Charity.[8]
[7] Transcript of proceedings 11 June 2020 page 45
[8] Transcript of proceedings 11 June 2020 page 34
In making that submission, Mr Faulder relied on passages in the reasons for the decisions of differently constituted Appeal Tribunals in Legal Practitioner v Council of the Law Society of the ACT,[9] Walls v Coutts,[10] and GP v McKenzie and Ors,[11] and from the reasons for decision of the Tribunal as presently constituted in Reynolds v Powley & Anor.[12] Mr Faulder submitted, on the basis of those decisions, that because the decision made by Presidential Member Daniel to refuse leave to appeal out of time is not a final decision of the Tribunal, it is not open to the Charity to appeal that decision within the Tribunal. It might be possible to appeal that decision to the Supreme Court, but the Tribunal does not have jurisdiction to hear the Charity’s appeal.
[9] Legal Practitioner v Law Society of the ACT [2016] ACTSC 203
[10] Walls v Coutts (2019) ACAT 104
[11] GP v McKenzie and Ors [2018] ACAT 96
[12] Reynolds v Powley & Anor [2020] ACAT 7
Mr Faulder acknowledged that the Charity had the power to appeal internally the decision of the Original Tribunal, and that the Charity had sought to do so but had lodged its application for appeal out of time. Consequently, it had to seek leave to appeal out of time. Having been refused leave to appeal out of time, the Charity could not appeal internally and would have to take the matter to the Supreme Court.
Consideration and conclusion
The resolution of this issue involves the interpretation and application of specific sections of the ACAT Act. The key section is section 79, relevant parts of which provide:
79 Appeals within tribunal
(1) This section applies if—
(a) the tribunal has decided an application (the original application); and
(b) the original application was not an appeal from a decision by the tribunal.
…
(3) A party to the original application may, by application, appeal the
decision to the tribunal on a question of fact or law.
The Dictionary to the ACAT Act contains the following definition:
application—
(a) for this Act generally—means an application under section 9;
and
(b) for parts 5 to 9 includes—
(i) a matter referred or appealed to the tribunal under any authorising law; and
(ii) a matter heard or dealt with by the tribunal on its own initiative.
The appeal provisions of the ACAT Act are in Part 8, so both paragraphs of the definition are relevant to the first issue being considered.
“Decision” is defined in the Dictionary to the ACAT Act as follows:
decision, of the tribunal, means—
(a) an original decision on a matter stated in an application; or
(b) the review of another entity’s decision stated in an application; or
(c) an advisory opinion on a matter stated in an application; or
(d) for an appeal—a decision by the tribunal for the appeal.
Only paragraph (a) of that definition is relevant for present purposes.
In Powley v Reynolds & Anor,[13] the Tribunal as presently constituted referred to previous Tribunal decisions on this issue. The following six paragraphs draw on or repeat what was stated on that occasion.
[13] Reynolds v Powley & Anor [2020] ACAT 7 at [106]-[113]
There are decisions of the Tribunal to the effect that the Tribunal has no power to hear appeals in relation to what are described as interlocutory orders or decisions. In particular, in Walls v Coutts,[14] the Appeal Tribunal drew on a previous decision of an Appeal Tribunal in GP v McKenzie and Ors[15] (GP) and a Tribunal decision in The Legal Practitioner v Council of the Law Society of the Australian Capital Territory (Stephen Stubbs).[16] Those decisions were to the effect that various sections of the ACAT Act dealing with appeals, when interpreted in the ordinary meaning of the words, could only have referred to a final decision of the initiating application, and that there was no express power to appeal interlocutory decisions.[17]
[14] Walls v Coutts [2019] ACAT 104
[15] GP v McKenzie and Ors [2018] ACAT 96
[16] The Legal Practitioner v Council of the Law Society of the Australian Capital Territory (Stephen Stubbs) [2010] ACAT 19
[17] See GP v McKenzie and Ors [2018] ACAT 96 at [60], [61]
The approach taken in GP was to ask whether the consequence of the order or orders being challenged “finally determine the parties’ rights in the principal causes of action.”[18] The Appeal Tribunal concluded in GP that the decisions being considered in that case did not formally determine the parties’ rights in the principal causes of action (defamation claims) and hence the decisions were interlocutory decisions and no appeal lay from them.[19]
[18] GP v McKenzie and Ors [2018] ACAT 96 at [68]
[19] GP v McKenzie and Ors [2018] ACAT 96 at [68]
The Appeal Tribunal in Walls v Coutts considered in detail whether internal appeals can be made from interlocutory decisions of the Tribunal. It focused on section 79 of the ACAT Act.
Having considered a textbook on appeals,[20] the expressions ‘original application’ and ‘decision’ in section 79 of the ACAT Act, the definition of ‘application’ and ‘authorising law’ in the Dictionary in that Act, and section 9 (Applications under authorising laws), the Appeal Tribunal concluded that “only final decisions of the originating process can be appealed within the tribunal.”[21] The Appeal Tribunal continued:
If ‘application’ in section 79 is limited to the originating process – then it follows that decisions on every other sort of application are simply not amenable to internal appeal. So, for example, an application for a private hearing, or for interim orders, or for costs are applications in a proceeding and would not be internally appellable. Decisions about how the matter should progress, and how the hearing should be conducted, would be appellable only in the context of an appeal from the final decision on the substantive application. A party dissatisfied with the outcome on such an interlocutory point must take their concerns to the Supreme Court, if an immediate review is sought.[22]
[20] Beazley, Tout and Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Butterworths, 2014)
[21] Walls v Coutts [2019] ACAT 104 at [24]
[22] Walls v Coutts [2019] ACAT 104 at [27]
The Appeal Tribunal also noted that the other key term in section 79 is ‘decision’. It was not disputed in that case that the accepted meaning of decision (which excludes interlocutory findings or reasons) should be adopted.[23]
[23] Walls v Coutts [2019] ACAT 104 at [28]
The Appeal Tribunal concluded:
[W]e consider that on its correct interpretation section 79 of the ACAT Act permits an internal appeal to be brought from a final decision on an originating process. It needs to be a decision – not merely a reason or ruling on the way to a decision – and it needs to determine the rights of the parties in the substantive application.[24]
[24] Walls v Coutts [2019] ACAT 104 at [30]
The brief submission made by Mr Hurst-Meyers for the Charity suggests that the focus in resolving this question of the Tribunal’s power should not be on the type of orders sought by the application (in this case, an interlocutory order in the form of the grant of an extension of time to appeal) but on the whether the application for an extension of time to appeal should be characterised as an ‘original’ application for the purpose of section 79.
In the absence of detailed legal argument for the Charity, it falls to this Tribunal to discern the reasoning which might be advanced in support of the conclusion sought by the Charity. What follows is an attempt to do that.
The phrase ‘original application’ is also used in section 78 of the ACAT Act, which provides for the correction to an order made on an application to the Tribunal (referred to as the “original application”) other than an application for review of a decision under certain nominated laws.[25] To the extent that it provides context for the use of “original application” elsewhere in the ACAT Act, section 78 would support (without compelling) a conclusion that the phrase refers to a substantive application.
[25] ACT Civil and Administrative Tribunal Act 2008 section 78(1), (2) and (3)
The next question raised by Mr Hurst-Meyers’ submission is whether there is support outside sections of the ACAT Act for characterising an application under rule 94 as an “original application” to which section 79(3) of the ACAT Act applies. To answer that question, it is appropriate to focus on the character of the ACAT Rules.
The ACAT Rules are made under section 24 of the ACAT Act, subsection (4) of which provides that a rule is a “notifiable instrument.” The note to that subsection states that a notifiable instrument must be notified under the Legislation Act 2001.[26]
[26] The ACAT Rules were notified by Notifiable Instrument NI2020-64 on 31 January 2020. Most of the Rules commenced on 3 February 2020.
The Legislation Act 2001 provides that:
(a)a ‘notifiable instrument’ is a ‘statutory instrument’ (whether or not legislative in nature) that is declared to be a notifiable instrument by an Act[27] (in this case, the ACAT Act);
(b)a ‘statutory instrument’ includes an instrument (whether or not legislative in nature) made under an Act, and includes a ‘subordinate law’ and a ‘notifiable instrument’;[28]
(c)a ‘subordinate law’ includes a rule (whether or not legislative in nature) made under an Act;[29]
(d)a ‘law’ of the Territory includes a subordinate law.[30]
[27] Legislation Act 2001 section 10(1)
[28] Legislation Act 2001 section 13(1)(a), (2)
[29] Legislation Act 2001 section 8(1)(a)
[30] Legislation Act 2001 Dictionary Part 1
It follows from those definitions that the ACAT Rules are a law of the Territory. Hence, it could be argued, an application made under rule 94 would be an application for the purpose of section 79(3) of the ACAT Act if such an application is covered by section 9 of that Act, which provides:
A person may apply to the tribunal if an authorising law provides that the application may be made.
In Walls v Coutts the Appeal Tribunal described section 9 as “the linchpin by which an authorising law and the ACAT Act are generally brought together to enliven the tribunal’s jurisdiction in a matter.”[31]
[31] Walls v Coutts [2019] ACAT 104 at [17]
If the ACAT Rules are a ‘law’ of the Territory, is rule 94 an ‘authorising law’? The Dictionary to the ACAT Act defines ‘authorising law’ to mean:
(a) a territory law that provides that an application may be made to the tribunal; and
(b) for a civil dispute – includes this Act.
Rule 94 does not provide that an application may be made to the Tribunal. It specifies the period within which an application for appeal (which is authorised by section 79) must be lodged. It contemplates that the Tribunal might allow further time for lodgement. Note 1 to rule 94 states that an application for further time may be made, before or after the specified period, and refers to section 151C of the Legislation Act 2001. Note 2 refers to the rules about extending time in rule 38. A note is not part of a statutory instrument.[32]
[32] Legislation Act 2001 section 127(1)
Rule 38 applies if there is a time limit under the ACAT Act or the ACAT Rules for making an application to the Tribunal. That rule does not provide expressly that an application may be made to the Tribunal. Rather, it provides that the Tribunal may, by order, extend the time for making an application, and that the Tribunal may make such an order on application by a party. A note to rule 38 states that an application for an order can be made using the approved form (Application for Interim or Other Orders – General). Another note states that a request for an extension of time may be made even though the time to be extended has already ended and refers to section 151C of the Legislation Act 2001.
Section 151C(1) of the Legislation Act 2001 provides that the section applies if, under an Act or statutory instrument, something must be done within a particular period of time but a court or other entity has power to extend the time for doing the thing. The section continues:
(2) A person may apply to the court or other entity for the relevant time to be extended even though the relevant time has ended.
(3) The court or other entity may extend the relevant time even though the relevant time has ended.
On that reading, neither rule 94 nor rule 38 is an authorising law which provides that the application may be made. However, when those rules are read with section 151C of the Legislation Act 2001, an argument can be made that there is an authorising law providing that a person may apply to the Tribunal for the time in which to lodge an application for appeal to be extended, even though the 28 day period prescribed by rule 94 has ended. Consequently, if the Tribunal has decided such an application, a party to that application may appeal the decision of the Tribunal on a question of fact or law under section 79(3) of the ACAT Act.
That conclusion would not reverse the previous decisions noted above. Rather it would provide an exception to the approach taken in them because an authorising law expressly provides for applications to be made in relation to an extension of the appeal period. Absent such a specific authorising law, those decisions would apply to prevent the Tribunal hearing an appeal against a Tribunal decision refusing to grant leave to appeal out of time.
In the context of this case, it is not appropriate to express a final view on that point, given that:
(a)the preceding paragraphs were written without the benefit of detailed argument from Mr Hurst-Meyers, and Mr Faulder had no opportunity to put any submissions in reply; and
(b)this Tribunal is reluctant to overturn the interpretation of the law found in the decisions of appeal tribunals without the benefit of the alternative interpretation being properly argued.
However, it is appropriate to consider the substantive aspects of the submissions made on behalf of the Charity on the basis that it is arguable that the Tribunal has jurisdiction to hear an appeal against a decision on an application for the grant of leave to appeal out of time.
Before doing so, it is necessary to deal with Mr Hurst-Meyers’ submission that the Charity’s application for appeal was within time under rule 94 because he was told there was no time limit on filing an application to appeal out of time.
That submission is rejected. If an application to appeal is made outside the 28 day appeal period it is clearly late. Rules 94 and 38 (discussed below) expressly contemplate that an application for an extension of time may be made before or after the 28 day period has expired.[33] Although it is correct to say there is no prescribed limit on when an application for leave to appeal out of time can be made, that is no indication that an application made out of time would be granted. Indeed, the authorities indicate that the longer the period after 28 days have expired, the more difficult it might be to obtain leave to appeal.[34]
Should leave be granted to appeal out of time against the decision not to grant leave to appeal out of time?
Legislation and legal principles
[33] See also Legislation Act 2001 section 151C
[34] See for example Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56 at [20]-[21]
As noted earlier, section 79 of the ACAT Act provides that if the Tribunal has decided an application:
(3) A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.
Part 3.1 of the ACAT Rules applies to appeals within the Tribunal under section 79 of the ACAT Act. Rule 94 states:
94 Application for appeal within tribunal—time for lodging
An application for appeal within the tribunal must be lodged no later than 28 days after the day the orders of the tribunal in the original application were made, or any further time that the tribunal allows.
Note 1An application for further time may be made before or after the 28-day period (see Legislation Act, s 151C).
Note 2For rules about extending time, see r 38 (Extension of time for making application).
The provisions of rule 38 relevant to the present proceedings state:
38 Extension of time for making application
(1) This rule applies if there is a time limit under the Act, another law or these rules for making an application to the tribunal.
(2) The tribunal may, by order, extend the time for making an application.
Note A request for extension of time may be made even though the time to be extended has already ended (see Legislation Act, s 151C).
(3) The tribunal may make an order under subrule (2) on application by a party, another person or on its own initiative.
NoteAn application for an order under this part can be made using the approved form Application for Interim or Other Orders - General.
…
(5) This rule is subject to any express provision about the extension of time in these rules or any other law.
Examples
1 the Planning and Development Act 2007 prohibits the extension of time for some applications
2 the Limitation Act 1985 provides for extension of time for some claims
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)[35] (Concerned Citizens), Justice Refshauge repeated the principles he had set out in an earlier case:
[35] [2015] ACTCA 56 at [20] – [21]
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.
That passage has been relied on by the Tribunal in published decisions[36] and oral ex tempore decisions.
[36] See, e.g. Commissioner for Social Housing v Williams [2017] ACAT 53 and cases cited there and, more recently, Hurst-Meyers v Aulich Civil Law Pty Ltd ACN 155 746 777 [2020] ACAT 56 at [105]
Drawing on those principles for the purpose of this case it is appropriate to consider the evidence and submissions in relation to:
(a)the length of the period beyond the 28 day appeal period after which the Charity lodged its application for appeal;
(b)the reason(s) for the delay in lodging the application for appeal;
(c)whether the occupants would be prejudiced if the Charity were to be granted an extension of time;
(d)the merits or prospects of success of the appeal;
(e)whether the interests of justice demand that an extension be granted; and
(f)whether a miscarriage of justice will occur if an extension is not granted.
Mr Hurst-Meyers, as the chairman of the board of the Charity, was authorised to act on behalf of the Charity.[37] He gave evidence to this Tribunal in relation to some of these matters. The salient points are summarised below.
The period of delay before lodging the application for appeal
[37] Transcript of proceedings 11 June 2020 page 21
The orders were made by Presidential Member Daniel on 21 April 2020. The 28 day appeal period expired on 19 May 2020. The application for appeal was lodged on 25 May 2020, six days outside the appeal period.
Mr Hurst-Meyers submitted that the period of six days was not significant.[38]
The reasons for the delay
[38] Transcript of proceedings 11 June 2020 page 51
In ascertaining the reason or reasons for the delay in lodging the application for appeal, it is useful to identify the date on which the Charity (in practice, Mr Hurst-Meyers) became aware of the orders made on 21 April 2020.
The records of the Tribunal show that an email message with a copy of the orders was sent to Mr Hurst-Meyers and Mr Faulder at 10:33am on 22 April 2020. The email stated, “Please find attached orders made by the Tribunal in relation to the above-mentioned matter.”
Despite that communication, the Charity’s application for appeal included the sentence “I have not receive (sic) the written orders and I was excluded from the decision hand (sic) down by the Member.”
Mr Hurst-Meyers’ oral evidence on this point included apparently contradictory statements. At different times in the hearing he advised this Tribunal that:
(a)on looking at his emails, “it jumps” from 20 to 23 April “so that I don’t have receipt for anything … from 20 April to 23 April in my inbox” and “there’s nothing” on 21 or 23 April;[39]
(b)“I’m just looking at actually what happened. I’ve got a date stamp of email on it. My goodness. Yes, I did receive that on 22 April. … I’ve changed my view to all mail and then it is there;”[40]
(c)on 21 and/or 22 April 2020 he spoke to Ms Bolas, a solicitor representing the Charity at that time, who was present at the hearing on 21 April 2020;[41]
(d)he became aware of the orders of 21 April on or about 22 April 2020;[42]
(e)he communicated with Mr Faulder on 22 April 2020 that “we’re appealing the decision.”[43]
[39] Transcript of proceedings 11 June 2020 page 22
[40] Transcript of proceedings 11 June 2020 page 23
[41] Transcript of proceedings 11 June 2020 pages 4-5, 23
[42] Transcript of proceedings 11 June 2020 page 23
[43] Transcript of proceedings 11 June 2020 page 23
Although Mr Hurst-Meyers indicated to Mr Faulder on 22 April 2020 that the Charity would be appealing the decision, he gave evidence to this Tribunal that the board of the Charity talked about the matter “probably about a week or two after”, having received both a report from Ms Bolas about what Presidential Member Daniel had said and advice from Mr Whybrow of counsel. Having discussed what they should do, the board eventually decided to appeal against the decision of Presidential Member Daniel.[44]
[44] Transcript of proceedings 11 June 2020 pages 6, 23-24
Mr Hurst-Meyers provided five explanations for the application for appeal being lodged after the appeal period expired. First, he stated that, in relation to both the proceedings before Presidential Member Daniel and the present proceedings, the Charity looked at communications with the Tribunal in which the Charity was told that there was no limit to an out of time appeal.[45] In particular, he referred to an email dated 19 November 2019 from the Administrative Review Team at the Tribunal (ACAT Admin Review) addressed to Mr Hurst-Meyers which stated “There is no time limit for filing an application for leave to appeal out of time.” As noted earlier, he suggested that the Charity’s application for appeal was within time because of ACAT Rule 94.
[45] Transcript of proceedings 11 June 2020 page 25-27
Second, Mr Hurst-Meyers described how the grounds of appeal were prepared. He advised this Tribunal that he prepared the grounds for appeal set out in the application for appeal dated 25 May 2020. Those grounds were based in part on the report that Ms Bolas provided. He was assisted by Jonathan Bevan, a paralegal with Ms Bolas.[46]
[46] Transcript of proceedings 11 June 2020 pages 27-28
Mr Hurst-Meyers also stated that he was relying on Ms Bolas’ interpretation of what Presidential Member Daniel said, and that “we weren’t told in time, and that caused the – the deadline to lapse.”[47]
[47] Transcript of proceedings 11 June 2020 page 52
Mr Hurst-Meyers stated that, although Ms Bolas had provided a report on Presidential Member Daniel’s decision, she was involved in a large case that drew her out of the state and her time became limited, so that she was not able to continue with the appeal. Ms Bolas informed him of that “maybe a few weeks after the actual decision.”[48]
[48] Transcript of proceedings 11 June 2020 pages 34-35
Mr Hurst-Meyers stated that, had he been advised that “the quicker you get it in, the better, we could have handed something in on the spot.”[49] He continued by saying, in relation to the application for appeal:
they posed those questions, a written statement about the need for the case, the questions, reasons, giving leave, the draft application was out of time, then attached the interim orders and then we felt that all required legal advice and the first time I could get to Steve Whybrow to talk about this was a couple of weeks later and that’s hence the reason why we’ve put it in right after speaking to Steve about it.[50]
[49] Transcript of proceedings 11 June 2020 page 51
[50] Transcript of proceedings 11 June 2020 page 51
Third, according to Mr Hurst-Meyers, their ability to create the document was hampered by COVID-19. In his words, “trying to actually do legal documents across the actual Internet, and also through Skype, and, you know, like, without contact this is not an easy thing to do. It was actually quite difficult.”[51] When asked whether he was in telephone contact with Mr Bevan, Mr Hurst-Meyers said “Yes. But when you sit side by side with somebody and you’re doing the actual document together, it’s – it’s certainly a lot more efficient, but we were hampered by COVID-19, as was the world.”[52]
[51] Transcript of proceedings 11 June 2020 page 28
[52] Transcript of proceedings 11 June 2020 page 28
Fourth, Mr Hurst-Meyers referred to a statement of Presidential Member Daniel at the hearing on 21 April 2020 that an appeal from her decision would have to go to the Supreme Court. He gave evidence that he contacted the Tribunal’s registry by telephone before or around 22 May 2020,[53] and that (although he was “only going off memory now” and he did not have any emails), having spoken to the registry and being told that he could appeal he was “surprised” that what Presidential Member Daniel said on the transcript “was not correct advice.”
[53] Transcript of proceedings 11 June 2020 page 28
At 2:04pm on 22 May 2020, he sent an email to ACAT Admin Review and to Mr Faulder which stated:
Dear Registrar
We are appealing the “out of time rejection” handed down by Presidential Member Daniels (sic) and want to know the procedure for pursuing this. The Member said we can appeal her ruling through the Supreme Court and we want to know if this is correct the (sic) procedure for doing so?
At 3:30 pm, ACAT Admin Review replied by email addressed to Mr Hurst-Meyers and copied to Mr Faulder:
Good afternoon
As the decision was made on the original RT file, any application to appeal this decision needs to be made to the Tribunal in the first instance. More information about Appeals to the Tribunal can be found at
Mr Hurst-Meyers told this Tribunal:
We were headed towards the Supreme Court, but I thought I’d just check with the registry one more time, and then he responded saying that we can appeal the decision to the tribunal in the first instance, which surprised it because that contradicted what Daniels had told me directly and I think that’s held on a transcript. … I was surprised but I thought, okay, well, we’ll just run it in the – in the ACAT and – and hope for a fair hearing.[54]
[54] Transcript of proceedings 11 June 2020 pages 28-29
At 3:42pm on 22 May 2020, Mr Hurst-Meyers sent an email to the Tribunal asking, “Is there a time-limit on this appeal.” At 3:45pm he sent another email asking, “Can you send me the link to the form so I can begin filling out the appeal form.” The Tribunal registry did not respond. It did not need to. The information on the link provided to Mr Hurst-Meyers at 3:30pm included information about appeals within 28 days of a Tribunal decision, the need to apply for leave to appeal if the application for appeal is made outside the 28 day period, a link to the form for an application for leave to appeal out of time, and a link to the form for an application for appeal.
Mr Faulder sent an email to Mr Hurst-Meyers (and ACAT Admin Review) on Sunday 24 May 2020 explaining that the Charity had 28 days within which to appeal the decision to the Supreme Court.[55]
[55] Transcript of proceedings 11 June 2020 page 47
On 25 May 2020, the Charity lodged its application for appeal.
Mr Hurst Meyers submitted that, because the Charity stopped its approach to the Supreme Court and came back to the Tribunal (apparently on the basis that Presidential Member Daniel’s statement was incorrect), that should be taken into account as a reason for the delay in lodging the application for appeal in the Tribunal.[56]
[56] Transcript of proceedings 11 June 2020 pages 29, 51
Fifth, Mr Hurst-Meyers referred to a multiplicity of other cases in which he and the Tenants Union or clients of the Tenants Union are involved. Although it was not entirely clear, it may be that he was suggesting that the range of concurrent proceedings at various stages might have had some bearing on the Charity’s capacity to lodge an application for appeal in this case on time.[57]
[57] Transcript of proceedings 11 June 2020 pages 29-31, see also page 50
In summary, Mr Hurst-Meyers submitted that a “small oversight” could be excused in light of the Charity losing its lawyer unexpectedly and the effect of COVID-19.[58]
[58] Transcript of proceedings 11 June 2020 page 46
Mr Faulder submitted that there was no reasonable explanation for why the Charity did not file an appeal within the prescribed 28 days. He submitted that little weight should be placed on Mr Hurst-Meyers’ evidence that he spoke with someone at the Tribunal who informed him that the appropriate method was to appeal to the Tribunal, first, because there is no record of that conversation and, second, because his email correspondence on 22 May 2020 would not make sense if he had spoken with someone at the Tribunal. Also, there was no evidence that the Charity took any steps before 22 May to appeal the decision, including any proceedings in the Supreme Court.[59]
[59] Transcript of proceedings 11 June 2020 page 32
Mr Faulder contended that the email correspondence suggested that Mr Hurst-Meyers had no idea that there was a 28 day time-limit and that it had elapsed. Yet that is not a reasonable excuse in circumstances where the issue being appealed involves an appeal out of time.[60]
[60] Transcript of proceedings 11 June 2020 pages 48-49
In any case, Mr Faulder submitted, the Tribunal registry does not and should not give legal advice. It is for a party to seek its own legal advice. In Mr Faulder’s submission, it beggars belief that, in circumstances where the Charity was legally represented at the hearing before Presidential Member Daniel in relation to an application for leave to appeal out of time, the Charity would not be informed by its legal advisors that if the Charity did not like the decision of Presidential Member Daniel it had 28 days in which to appeal.[61] Indeed, he submitted, it would have been incumbent on the Charity’s legal representative to have notified the Charity of the appeal period.[62]
[61] Transcript of proceedings 11 June 2020 pages 32-33
[62] Transcript of proceedings 11 June 2020 page 49
Further, Mr Faulder noted that the application for appeal was filed on 25 May which was the day after which he had informed Mr Hurst-Meyers by email that the Charity had 28 days to appeal the decision of Presidential Member Daniel to the Supreme Court.[63]
Whether the occupants would be prejudiced if an extension of time was granted
[63] Transcript of proceedings 11 June 2020 page 32
No submissions were made in relation to this factor. However, it is reasonable to expect that the occupants would suffer some prejudice if leave were granted and there was a further delay in them receiving the amount awarded by the Original Tribunal. As Brennan CJ and McHugh J observed in Jackamarra v Krakouer, in cases regarding extension of time to lodge an appeal, “the respondent to the application has a vested right to retain the judgement, the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent.”[64] In any case, as noted earlier, even if the occupants would not be prejudiced by the grant of leave to appeal out of time, the mere absence of prejudice is not enough to justify the extension of time.
The merits or prospects of success of the appeal
[64] Jackamarra v Krakouer [1998] HCA 27 at [4], quoted in Kostov v The Society of St Vincent dePaul PtyLtd [2020] ACTCA 38 at [23]
Although the reasons for appeal attached to the application for appeal comprise 10 typed pages, many of those reasons relate to issues before the Original Tribunal. At the hearing before this Tribunal, Mr Hurst-Meyers contended that the Charity had good prospects of success because the Original Tribunal did not properly apply the law in relation to an issue concerning asbestos.[65]
[65] Transcript of proceedings 11 June 2020 page 35
Mr Faulder submitted that, if the Tribunal has jurisdiction to hear the appeal, the Charity’s prospects of success on appeal are extremely limited, particularly as much of the application for appeal refers to the decision of the Original Tribunal which is not subject of the current application.[66] In any case, if the Tribunal lacks jurisdiction to hear the appeal, the prospects of success are zero.[67]
[66] Transcript of proceedings 11 June 2020 pages 33-34
[67] Transcript of proceedings 11 June 2020 page 34
As was made clear at the hearing, this Tribunal is concerned with the merits of the Charity’s appeal against the decision of Presidential Member Daniel. In other words, can the Charity satisfy this Tribunal that it has at least an arguable case that her decision was made in error and that any error or errors are of such significance that the decision should be reversed?
A careful reading of the reasons for appeal discloses that the Charity contends that Presidential Member Daniel was in error in relation to the following:
(a)Not receiving into evidence:
(i) a video recording which the Original Tribunal had not admitted into evidence and which showed Liza Hurst-Meyers delivering a termination notice which was served as an emergency as a result of asbestos contamination caused by the occupants;
(ii) new photographs to counter the argument that the damage to the lino was caused by normal wear and tear (which photos were found after the hearing before the Original Tribunal).
(b)Acknowledging that it was an error to refer to the Charity as the ‘owner’ (when it was the licensee) but viewing that error as irrelevant.
(c)Concluding that the Charity had no prospects of success on appeal, stating incorrectly that the friable asbestos contaminating the environment was not an emergency when it is an emergency.
(d)The Original Tribunal having only applied the Residential Tenancies Act 1997 in part, ignoring the fact that the asbestos contamination breach that was detected constituted an emergency and the lessors were permitted to go to the property after 6:00pm.
(e)Finding there was no proper reason to allow the appeal based on the error in the Tribunal registry not confirming with Mr Hurst-Meyers or the Charity the last date to lodge the appeal.
(f)Finding that:
(i) there was no denial of natural justice or procedural fairness;
(ii) any errors of fact would not have affected the outcome of the case; and
(iii) there would be prejudice to the occupants due to the delay (when Mr Faulder was notified by email on 1 and 14 November 2019 of the Charity’s intention to appeal the Original Tribunal’s decision, and when there is prejudice to the Charity arising from the damage to property by the occupants, and for which the Charity should be compensated).
(g)Concluding that Mr Hurst-Meyers is experienced in court proceedings and then relying on Mr Hurst-Meyers’ inexperience to take advantage of him in his appeal, when the Charity was not properly represented, and the full evidence of Mr Hurst-Meyers and Ms Hurst-Meyers was not put to the Original Tribunal or Presidential Member Daniel.
(h)Concluding that this was not a matter for determination due to public policy, when all matters involving deliberate asbestos contamination as an extortion attempt is a public policy matter.
The Charity also:
(a)contended that Presidential Member Daniel informed it that an appeal against her decision should be taken to the Supreme Court, which was “not correct advice;”
(b)noted that Mr Hurst-Meyers was excluded from the handing down of the decision, which was “another example of unfairness from the Tribunal;”
(c)questioned the fitness of Presidential Member Daniel to occupy her current position on the basis of comments made by her that drug trafficking by the occupants was irrelevant or of no concern.
Although the present proceedings are not an appeal against the decision of Presidential Member Daniel, it is necessary to consider carefully her reasons for decision in order to assess whether an appeal against that decision would have merit or prospects of success. Consequently, in preparing these reasons for decision, I have read those reasons for decision, the transcript of the hearing on 20 April 2020 and the reasons for decision of the Original Tribunal.
I note that, although Mr Hurst-Meyers appeared on behalf of the Charity before this Tribunal in relation to the current application, Ms Bolas, a solicitor, was granted leave to appear on behalf of the Charity at the hearing on 20 April 2020 (although no notice had been filed). She made submissions in addition to what Mr Hurst-Meyers had provided on 20 January 2020.[68]
[68] Transcript of proceedings 20 April 2020 pages 2-3, 6-8, 28, 31, 34-56, Transcript of proceedings 21 April 2020 pages 62-63
Presidential Member Daniel considered the submissions of the parties by reference to the principles enunciated by Refshauge J in Concerned Citizens (quoted at [53] above), including the principle that time limits are important and prima facie they must be observed.[69] The following consideration of her reasons for decision follows fairly closely the order in which she considered the submissions.
Length of, and reasons for, the delay
[69] Transcript of proceedings 21 April 2020 page 68
Presidential Member Daniel noted that the time taken to lodge the Charity’s application for appeal on 9 December 2019 was more than three weeks after the 28 days appeal period ended. If one calculated the period to the date on which the authority to act for the Charity and associated documentation was filed (about 18 March 2020), the period was almost four months after the appeal period had expired.[70]
[70] Transcript of proceedings 21 April 2020 pages 61-63, 68
At the hearing on 20 April 2020, Ms Bolas made submissions about the reasons for and length of the delay which were, in summary, that:
(a)Mr Hurst-Meyers was an unrepresented litigant and “as such he may have got something a bit wrong. He was emotional. He was running his own case. He was involved. Maybe he didn’t write it down properly” and his “understanding of the legal process and … time limits for appealing” should be considered. [71] Indeed, Ms Bolas stated, “he has made an error in thinking he was the representative of the company” and “he thought he was a party.”[72] In that context, Mr Hurst-Meyers sought to clarify the time in which an application for appeal should have been lodged, and the Tribunal registry did not reply that day to assist him.[73]
(b)The fact that he took another three weeks to lodge the documents can be explained by reference to there being no time limit on applications to appeal out of time and hence there was no duty or obligation to meet a time limit in lodging the application. In that period, he took advice from a senior barrister.[74]
(c)Three weeks is not a long period of time.[75]
[71] Transcript of proceedings 20 April 2020 page 35
[72] Transcript of proceedings 20 April 2020 page 36
[73] Transcript of proceedings 20 April 2020 pages 36-39
[74] Transcript of proceedings 20 April 2020 pages 38-39
[75] Transcript of proceedings 20 April 2020 page 37
Presidential Member Daniel referred to oral and documentary evidence provided in relation to the delay,[76] and noted that Mr Hurst-Meyers and Ms Bolas explained that the failure to file the application for appeal by 13 November 2019 was an error on Mr Hurst-Meyers part which he made because:
(a)he was unclear about the timeframe within which to lodge an appeal;
(b)he had been told by a registry officer that he had to file on 17 November 2019 (a Sunday);
(c)his email to the Tribunal registry on 13 November 2019 enquiring about the date was not responded to on that date; and
(d)had a response been sent on that date he could have lodged an application for appeal on time.
[76] Transcript of proceedings 21 April 2020 page 68
Presidential Member Daniel rejected (as an “invention”) that part of the explanation that Mr Hurst-Meyers was told by a registry officer that he had to file on 17 November 2019.[77]
[77] Transcript of proceedings 21 April 2020 pages 63-65
Presidential Member Daniel noted that when the Original Tribunal’s decision was provided on 16 October 2019 it was accompanied by a letter stating that there was a 28 day period in which to appeal. She referred to subsequent email correspondence in relation to a possible appeal. When the Tribunal’s registry replied to Mr Hurst-Meyers on 14 November 2019 that the appeal period had expired, Mr Hurst Meyers replied that day that he would lodge his documents as soon as possible. Presidential Member Daniel was not satisfied with Mr Hurst-Meyers’ explanation for the delay to that point, and noted that he had been told twice in writing that there were 28 days within which to lodge the documents.[78]
[78] Transcript of proceedings 21 April 2020 pages 69-70
There were two other reasons why Presidential Member Daniel was not satisfied that there was an acceptable reason for the delay in lodging the application for appeal. First, she did not accept that the delay was caused by the need of the Charity to obtain legal advice. The only evidence was given by Mr Hurst-Meyers which was described as “imprecise.” It appeared to shift whenever an attempt was made by the Tribunal to clarify details of what was required. There was no evidence before the Tribunal from a solicitor or barrister attesting to when legal advice was requested or obtained either about the time for an appeal or about the requirements for an appeal. In other words, there was no corroborative evidence before the Tribunal. Consequently, the Tribunal had no reliable evidence as to the dates and times at which legal advice was required or provided and so was unable to be satisfied that the Charity was unable to obtain legal advice in a timely manner in order to lodge the appeal within the prescribed time.[79] Second, the Tribunal noted that, from the point of receipt of the decision, Mr Hurst-Meyers on behalf of the Charity asserted that the decision would be appealed. Given that assertion, it was unclear to the Tribunal why any further legal advice was required.[80]
[79] Transcript of proceedings 21 April 2020 pages 63-65
[80] Transcript of proceedings 21 April 2020 page 65
In summary, Presidential Member Daniel was not satisfied that the delay was due to misinformation provided by the Tribunal registry or an inability to obtain timely legal advice. Rather, it seemed to her more likely that Mr Hurst-Meyers overlooked the task until the last minute and, upon hearing there was no timeframe for a request to extend time, relaxed and did not give preparation of the documents sufficient priority.[81]
[81] Transcript of proceedings 21 April 2020 page 65
Although, on one view, the delay in lodging the application for appeal was short, Presidential Member Daniel referred to the decision in Commissioner for Social Housing v Williams where the delay was nine days and an extension of time was refused. She “reluctantly” came to the view that this application for extension of time should be refused on the basis that she was not satisfied that it was in the overall interests of justice for the appeal to be allowed to be brought out of time.[82]
Prejudice to the occupants
[82] Transcript of proceedings 21 April 2020 pages 66, 67P
Relatively little mention was made in submissions about any prejudice to the occupants if leave to appeal out of time is granted.[83] Mr Faulder submitted that the occupants are entitled to rely on a decision in their favour.[84]
[83] See Ms Bolas’ submissions at transcript of proceedings 20 April 2020 pages 50-51
[84] Transcript of proceedings 20 April 2020 page 20
Presidential Member Daniel concluded that, given that Mr Hurst-Meyers had advised the occupants that the Charity would appeal the Original Tribunal’s decision, their ability to respond to the appeal had not been prejudiced by the delay.[85]
[85]Transcript of proceedings 21 April 2020 pages 68-69. There was also the possibility that, for reasons outside their control, the occupants would have to obtain different legal representation or be unrepresented at the hearing of an appeal.
There is no basis on which to find that her conclusion was in error.
Merits or prospects of success of the appeal
When considering the merits of the appeal and its prospects of success, Presidential Member Daniel discussed in some detail the grounds of appeal as conceptualised by Ms Bolas, commencing with those that raised issues about whether the Charity had been afforded natural justice by the Original Tribunal.
The first concerned Mr Hurst-Meyers’ email of 13 November 2019. As noted earlier, Presidential Member Daniel stated that when the Original Tribunal’s decision was provided on 16 October 2019 it was accompanied by a letter stating that there was a 28 day period in which to appeal. She referred to subsequent email correspondence in relation to a possible appeal. When the Tribunal’s registry replied to Mr Hurst-Meyers on 14 November 2019 that the appeal period had expired, Mr Hurst Meyers replied that day that he would lodge his documents as soon as possible. Presidential Member Daniel was not satisfied with Mr Hurst-Meyers’ explanation for the delay to that point, and noted that he had been told twice in writing that there were 28 days within which to lodge the documents. She concluded that he had not been denied natural justice because the Tribunal registry had not responded on 13 November 2019 to his email of that date. She noted further that on 19 November 2019 he sent an email asking if there was a time limit on the extension of time application. He was told there was no time limit. The documents were lodged on 9 December 2019.[86]
[86] Transcript of proceedings 21 April 2020 pages 68-70
Next, Ms Bolas noted that there was an issue about whether anyone had signed an authority to act for the Charity in the original proceedings. She submitted that the hearing was “run by people who have said they are representing the charity,” but nobody who was representing the Charity went into the witness box. They were denied the opportunity to give evidence.[87] Mr Faulder submitted that the fact that Mr Hurst-Meyers had not provided an authority to act for the Charity at the original hearing did not change what the outcome would be. The Charity might take issue with a director who acted in that fashion, but nothing was raised that the original hearing about not being able to lodge an authority.[88]
[87] Transcript of proceedings 20 April 2020 page 47
[88] Transcript of proceedings 20 April 2020 page 20
With respect to the submission that the Charity was not correctly represented because the Original Tribunal did not allow the authority to act to be put on the record, Presidential Member Daniel noted that Mr Hurst-Meyers was given the opportunity to represent the Charity. It had time to arrange alternative representation had it wanted to. There was no failure to afford natural justice to the Charity.[89]
[89] Transcript of proceedings 21 April 2020 pages 70-71
A number of points were made in the hearing before Presidential Member Daniel about whether the Charity’s case was properly heard by the Original Tribunal. For example, the following points were made about the contention that Mr Hurst-Meyers was not allowed to finish his evidence-in-chief:
(a)directions were given that evidence in documentary form be exchanged before the hearing so that at the hearing witnesses might be cross-examined or re-examined;[90]
(b)while he was being cross-examined by Mr Faulder, Mr Hurst-Meyers became angry and the Original Tribunal directed him to leave the hearing room;[91]
(c)consequently, Mr Hurst-Meyers did not have the opportunity to re-examine;[92]
(d)Mr Hurst-Meyers believed that he was giving evidence-in-chief while he was being examined by Presidential Member Daniel and Mr Faulder, he did not finish his evidence-in-chief and (whether or not it was evidence-in-chief) he “had more to say and he didn’t get to say it,” and so he considered it was not a fair hearing.[93]
[90] Transcript of proceedings 20 April 2020 page 20
[91] Transcript of proceedings 20 April 2020 pages 20-21
[92] Transcript of proceedings 20 April 2020 page 21
[93] Transcript of proceedings 20 April 2020 page 43
At the point of making the enquiry, according to Mr Hurst-Meyers, the Charity had the paperwork ready to lodge but awaited the reply of the registry. He stated that Mr Bevan, a paralegal with Ms Bolas, could confirm that the papers were ready. They “just wanted to check a couple of things,” and wanted to know why they were supposed to deliver something on a Sunday.[172]
[172] Transcript of proceedings 11 June 2020 pages 37, 44
Mr Hurst-Meyers also suggested that the delay was because the Charity had a right to seek legal advice and it took a couple of weeks to get answers to questions put by Mr Whybrow of counsel. Mr Hurst-Meyers considered that the Charity should not have been refused the ability to appeal out of time “because we responded a couple of weeks later” rather than the next day.[173]
[173] Transcript of proceedings 11 June 2020 pages 36-37
Those arguments were materially the same as the arguments put to Presidential Member Daniel.
Having reviewed the transcript and evidence before Presidential Member Daniel, I am not satisfied that she was in error in her conclusions about the reason for the delay and her decision that the explanation did not support the grant of an extension of time. There was evidence and cogent arguments to support that decision.
To the extent that her findings were based on her assessment of the veracity of Mr Hurst-Meyers’ oral evidence, Presidential Member Daniel had the benefit of seeing and hearing from him directly. This Tribunal is not in a position to dispute that finding.
In essence, Mr Hurst-Meyers on behalf of the Charity was in the same position as any other party, whether legally represented or not. The ACAT Rules provide a 28 day period within which to appeal. Mr Hurst-Meyers was advised in writing on the day of the Original Tribunal’s decision that there was a 28 day period in which to appeal. He received subsequent notification of that, and he made it clear well within that period that an appeal was likely. To the extent that he thought that the lack of a time limit on an application for leave to appeal out of time in some way relieved him of any need to comply with a 28 day appeal period, he was in error. To the extent that the Charity was put at a disadvantage because of Mr Hurst-Meyers’ lack of compliance with the ACAT Rules, that is a matter for the Charity to take up with him as its (subsequently) authorised representative.
Second, submissions were made to Presidential Member Daniel on the basis that Mr Hurst-Meyers was a self-represented litigant who was unfamiliar with the procedures of the Tribunal and needed assistance which the Tribunal was obliged to provide. As Presidential Member Daniel pointed out, it was the Charity rather than Mr Hurst-Meyers that is the party. Putting that important point to one side, it was implicit in those submissions that it is usual or preferable for parties in proceedings before the Tribunal to be legally represented. However, section 30 of the ACAT Act provides:
A person may, in relation to an application before the tribunal, appear in person or be represented by a lawyer or someone else (other than a person prescribed under the rules).
It is often (if not usually) the case that one or more of the parties to proceedings before the Tribunal represent themselves or are assisted by a friend or family member rather than a lawyer. In that sense, Mr Hurst-Meyers (and the Charity on whose behalf he appeared) was in the same position as many parties before the Tribunal each day. Often the Tribunal provides some procedural assistance, without stepping into the arena to run a party’s case. That role cannot be described with precision. Many factors will be considered on a case-by-case basis.
Some parties are well prepared, organised and confident in their presentation. Others need more assistance. Within appropriate bounds, the Tribunal attempts to accommodate the specific needs of individual parties. Ultimately, however, it is for each party to prepare and present their case to the best of their ability. They are assisted in this by directions or orders made by the Tribunal. Compliance with those directions and orders assists each party and the Tribunal in the fair and timely disposition of cases.
Although the difficulties faced by some self-represented parties can have a bearing on things such as the amount of latitude the Tribunal will give them in the way in which evidence is provided or submissions made, a party should not assume that simply because they are not legally represented, they do not need to comply with the ACAT Rules or the directions given in their particular case.
Presidential Member Daniel identified that Mr Hurst-Meyers was not a novice in proceedings before the Tribunal (or, indeed, the Supreme Court) but I am not satisfied that she overstated the implications of that experience for him (or the Charity he represented) in the proceedings. In particular, I am not satisfied that she relied on his inexperience to take advantage of him in his appeal.
Third, some of Ms Bolas’ submissions to Presidential Member Daniel were to the effect that the Original Tribunal failed to provide procedural fairness to Mr Hurst-Meyers (or, more correctly, the Charity on whose behalf he appeared). Consequently, it is appropriate to make some brief observations about the concept of procedural fairness.
Procedural fairness is “an essential attribute of a court’s procedure”.[174] However, Gleeson CJ stated in Lam that “fairness is not an abstract concept. It is essentially practical…”, and that “the concern of the law is to avoid practical injustice”.[175] Although according procedural fairness to each party is descriptively accurate, “the rules of procedural fairness do not have immutably fixed content”.[176] “Practical judgments about its content and application” will vary according to circumstances.[177]
[174] Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 at [156]
[175] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14
[176] Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 at [156]
[177] Kioa v West [1985] HCA 81 at [34]
The critical question in every case is therefore “what does the duty to act fairly require in the circumstances of the particular case”?[178] In Doughty-Cowell v Kyriazis, the Supreme Court of Victoria decided the practical question with cases involving self-represented litigants is whether the parties are given a reasonable opportunity to present their case.[179]
[178] Kioa v West [1985] HCA 81 at [34]
[179] Doughty-Cowell v Kyriazis [2018] VSCA 216
Those statements are reinforced in the judgment of Associate Justice McWilliam in Polleycutt v Aldcroft. Her Honour wrote:
Procedural fairness is not a rigid concept, and there are competing priorities in courts with high volumes of cases and full lists.[180] …
It is well appreciated that there is a daily struggle to balance efficiency in the disposal of court business with the essential requirements of procedural fairness.[181]
[180] Polleycutt v Aldcroft [2019] ACTSC 174 at [55]
[181] Polleycutt v Aldcroft [2019] ACTSC 174 at [56]
Her Honour noted that it is part of the role of the judicial officer to assist a self-represented litigant in aspects of a hearing.[182] But there is no procedural obligation on the court, even where a litigant is self-represented, to proactively ensure that the litigant attend the hearing in circumstances where the litigant was present at the time the hearing was set down. An applicant cannot assume that a request for an adjournment will be granted simply because an email is sent to the court.[183]
[182] Polleycutt v Aldcroft [2019] ACTSC 174 at [55]
[183] Polleycutt v Aldcroft [2019] ACTSC 174 at [28]
Having read the separate reasons for decision of the Original Tribunal and Presidential Member Daniel, I am not satisfied that Presidential Member Daniel was in error in her decision to the extent that it involved assessing whether the Original Tribunal accorded procedural fairness to Mr Hurst-Meyers.
Fourth, Presidential Member Daniel did not have to decide whether any or all of the further evidence identified by Mr Hurst-Meyers would be admitted if the appeal was heard. However, it was appropriate for her to categorise the types of evidence (evidence that was refused by the Original Tribunal and evidence that was not put to the Original Tribunal) and to note the obstacles that the Charity would have to clear before an Appeal Tribunal would admit such further evidence.[184]
[184] Transcript of proceedings 21 April 2020 pages 73-74. On this point see the subsequent decision in Hurst-Meyers v Aulich Civil Law [2020] ACAT 56
Fifth, it is regrettable that (as the parties have agreed) the Original Tribunal made some errors in the reasons for decision. However, those errors were given greater attention in submissions than they merit in terms of their effect on the outcome in this case. Presidential Member Daniel dealt with them appropriately.
I turn now to the overall assessment of the reasons for decision of Presidential Member Daniel and the merit, or prospects of success, of the Charity’s appeal. Presidential Member Daniel considered carefully and in detail the submissions made to her and the material on which they were based. Her assessment was sound and the conclusions she reached were open to her on the basis of those submissions and that material.
The submissions put by the Charity to this Tribunal were essentially the same as those put to Presidential Member Daniel. They traverse ground covered in the hearing before her and dealt with in her reasons. I am not satisfied that those submissions would have any better prospect of success on appeal if leave were granted to appeal out of time.
There are no other reasons to support the grant of leave to appeal out of time in this case.
Finally, it is appropriate to deal with the three additional matters referred to at [89] above.
First, as noted earlier in these reasons, Presidential Member Daniel stated, in response to a question from Mr Hurst-Meyers, that he could not appeal this decision but could go to the Supreme Court if he wanted to have something done about it.[185] She then advised Ms Bolas that her decision could not be appealed to, say, the president of the Tribunal but would probably be amenable to some sort of Supreme Court review. Alternatively, Mr Hurst-Meyers could apply again for an extension of time but would need to ensure he was not being frivolous or vexatious.[186]
[185] Transcript of proceedings 21 April 2020 page 66
[186] Transcript of proceedings 21 April 2020 page 67
Presidential Member Daniel’s response was informed by the decisions referred to earlier to the effect that there could not be an appeal within the Tribunal against an interlocutory decision of the Tribunal. A decision about whether to grant leave to file an application for appeal out of time is an interlocutory decision. If the Charity wanted to appeal such a decision it could not appeal internally and would have to seek a ruling from the ACT Supreme Court. Because Presidential Member Daniel was expressing the view based on the state of decisions of appeal tribunals at that time, I do not accept the Charity’s contention that it was not correct advice. The conclusion about the issue of internal reviews of such decisions as set out earlier in these reasons for decision raises additional matters to be considered but does not change the current state of the law.
Second, the circumstances in which Presidential Member Daniel delivered her reasons for decision explain when and why Mr Hurst-Meyers was excluded from part of that hearing. At the conclusion of the hearing on 20 April 2020, Presidential Member Daniel advised the parties that she would reserve her decision and would contact the participating parties and their representatives by telephone at 2:00pm the following day. Having contacted Mr Hurst-Meyers, Mr Bevan, Ms Bolas and Mr Faulder by telephone, Presidential Member Daniel commenced to read her reasons for decision. Mr Hurst-Meyers interrupted the Tribunal at the point when Presidential Member Daniel rejected his explanation for the delay in lodging the Charity’s application for leave to appeal. He was informed of the etiquette that he remain quiet while the Tribunal read the reasons for decision. Mr Hurst-Meyers continued to interrupt. Having been cautioned that if he continued to interrupt Presidential Member Daniel would end the phone call and read the reasons to an empty room, he said he wanted to listen to her. He agreed to be quiet and listen to the further reasons in relation to the explanation for the delay. He then asked, “Can I say something?” The Tribunal continued with the reasons and Mr Hurst-Meyers persisted and asked “can I appeal this decision?”[187] Having answered his question, Presidential Member Daniel said “I am now going to hang the phone up and I’m going to read the rest of my reasons into the transcript without the interruptions. Does anybody who is capable of being quiet want to be rung back?” Mr Faulder and Ms Bolas asked to be rung back. Presidential Member Daniel contacted each of them by telephone and continued to deliver her reasons for decision.[188]
[187] Transcript of proceedings 21 April 2020 pages 64-66
[188] Transcript of proceedings 21 April 2020 pages 66-67
Those actions were not an example of unfairness from the Tribunal. Rather, they were a means of preserving the orderly conduct of proceedings. By that stage, the parties and their representatives had provided evidence and completed submissions. The Tribunal was delivering detailed reasons for decision orally and the practice is that the Tribunal is uninterrupted. The Tribunal explained the etiquette to Mr Hurst-Meyers. He continued to interrupt. Had the hearing been conducted in person, the Tribunal could have directed Mr Hurst-Meyers to leave the hearing room. As the proceedings were conducted entirely by telephone, the call was discontinued. The full reasons were then read to the Charity’s legal representative and the occupants’ lawyer. The orders were sent to the parties. Neither Mr Hurst Meyers nor the Charity were denied procedural fairness.
The third matter raised by the Charity can be disposed of quickly. It is without foundation. It appears to be based on an exchange near the end of Ms Bolas’ summary submissions when she stated that, in the video that was not admitted into evidence, the occupants admitted to selling and being dealers in crack cocaine and had changed their evidence. The following exchange occurred:
PRESIDENTIAL MEMBER DANIEL: So are you saying that everyone who deals cocaine is necessarily a liar?
MS BOLAS: No, but they change their stories, give another statement, so there’s ---
PRESIDENTIAL MEMBER DANIEL: So what’s the crack cocaine got to do with anything, Ms Bolas?
MS BOLAS: That erases their credibility because they’ve changed their story several times.
PRESIDENTIAL MEMBER DANIEL: Okay. All right. Mr Faulder.[189]
[189] Transcript of proceedings 20 April 2020 page 9, see also pages 46-47
There is no support in that exchange for the unmerited attempt to question Presidential Member Daniel’s fitness to hold the office of presidential member.
Conclusions and order
For the reasons set out above, there is a question whether the Tribunal has jurisdiction to hear an appeal against a decision concerning an application for leave to appeal out of time. It was neither necessary nor appropriate for this Tribunal to resolve the issue on the basis of the submissions put to it. Consequently, this Tribunal proceeded on the basis that it is arguable that the Tribunal has jurisdiction to hear an appeal against such a decision.
In summary, this Tribunal is satisfied that:
(a)the Charity has not provided a reasonable explanation for the delay in lodging the application for appeal against the decision of Presidential Member Daniel on 21 April 2020;
(b)the occupants might suffer some prejudice if leave were granted and there was a further delay in them receiving the amount awarded by the Original Tribunal;
(c)the reasons for decision given by Presidential Member Daniel for refusing to grant leave to appeal out of time were soundly based on the submissions made to her and the material on which they were based, her conclusions were open to her on the basis of those submissions and that material, and the Charity would have little or no prospects of success in an appeal against that decision;
(d)the interests of justice do not demand that an extension of time in which to appeal be granted; and
(e)there would be no miscarriage of justice if an extension of time is not granted.
Rather, it is more likely that the interests of justice support the dismissal of the application. The Original Tribunal observed, “The amount of public and private resources consumed in this matter is out of all proportion to the seriousness of the issues or the amount of money involved.”[190]
[190] Wicks & Anor v The Hurst-Meyers Charity [2019] ACAT 92 at [93]
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 the Tribunal are resolved “as quickly as is consistent with achieving justice” while ensuring that “the decisions of the tribunal are fair.”[191] 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.”[192]
[191] ACT Civil and Administrative Tribunal Act 2008 section 6
[192] ACT Civil and Administrative Tribunal Act 2008 section 7
As noted on previous occasions,[193] it might be appropriate for legislation to prescribe the limited circumstances in which interlocutory orders, and applications for leave to appeal out of time, can be made.
[193] See for example Reynolds v Powley & Anor [2020] ACAT 7 at [332], Hussain v Farhmand [2017] ACAT 107 at [41], [42].
For those reasons, leave to appeal out of time against the decision of Presidential Member Daniel on 21 April 2020 is refused.
………………………………..
President G Neate AM
HEARING DETAILS
FILE NUMBER: | RT 851 of 2018 RT 859 of 2018 |
PARTIES, APPLICANT: | The Hurst-Meyers Charity Ltd |
PARTIES, RESPONDENT: | Keira Wicks and Trent Stevens |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | Mr C Faulder |
TRIBUNAL MEMBERS: | President G Neate AM |
DATES OF HEARING: | 11 June 2020 |
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