Wittman v Dennis & Anor (Appeal) - [2022] ACAT 4

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WITTMAN v DENNIS & ANOR (Appeal) [2022] ACAT 4

AA 43/2021 (RT 283/2021)
Catchwords: APPEAL – residential tenancies – procedural fairness – failure to file a written response as directed – oral evidence received at hearing – tribunal may inform itself as it sees fit – appeal dismissed ex parte – power to set aside ex parte orders
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 7A, 39, 48, 56, 74, 79, 82
Evidence Act 2011
Residential Tenancies Act 1997 ss 49, 83
Unit Titles Act 2001
Unit Titles (Management) Act 2011 ss 107, 109, 110, pt 6

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020

Cases cited:ACT Department of Education & Training v Prendergast [2000] ACTDT 6
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72
Bates v Port Stephens Holiday Park Pty Ltd (1996) NSWRT 208
Booth v Bosworth [2001] FCA 1453
Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298
British Railways Board v Herrington [1972] AC 877
Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23
Clements v Independent Indigenous Advisory Committee [2008] FCFCA 143
Coutts v Close [2014] FCA 19
Grozdanov v N&T Buildings Pty Ltd [2015] NSWCATAP 107
House v R [1936] HCA 40
Italiano v Carbone [2005] NSWCA 177
Kioa v West (1985) 159 CLR 550
Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266
Mansour v Dangar [2017] ACAT 49
Oliver v Registrar, Domestic Animals Act 2000 [2021] ACAT 93
Powley & Anor v Reynolds [2018] ACAT 103
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Sarbandi v Sharif [2017] ACAT 57
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29
Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73
Stead v State Government Insurance Commission [1986] HCA 54
Xia v Wang & Bian [2009] ACAT 21

Appeal Tribunal: Presidential Member H Robinson

Date of Orders:  20 January 2022
Date of Reasons for Decision:      20 January 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 43/2021
BETWEEN:
MARTIN WITTMAN
Appellant/Tenant

AND:
ROSS DENNIS
First Respondent/Lessor

AND:
LIXIN MAO
Second Respondent/Lessor

APPEAL TRIBUNAL: Presidential Member H Robinson

DATE:20 January 2022

ORDER

The Tribunal orders that:

The appeal is dismissed.
………………………………..

Presidential Member H Robinson

REASONS FOR DECISION

This is an appeal from a decision of the tribunal (the original tribunal) of 7 June 2021. The original tribunal ordered the appellant tenant (the tenant) pay the respondent lessor (the lessor) the sum of $173.25, being the amount associated with an infringement notice issued by the Owners Corporation (the charge) for, allegedly, smoking on the balcony, and the tribunal application fee.
The crux of the tenant’s argument is that he was…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] ACAT 4
Decision Date: 20 January 2022

CaseChat Overview and Summary

In the appeal of Wittman v Dennis & Anor, the applicant, represented by Mr Thomas, appealed against a decision made by the tribunal. The tribunal had conducted a hearing on 1 December 2020, but neither the tenant nor his representative attended. Despite Mr Thomas's attempt to attend remotely, he mistakenly logged into the wrong 'Webex' room. He realised the error shortly after the hearing commenced and contacted the tribunal at approximately 10:20am. A second interim application was subsequently filed to set aside the ex parte decision. The tribunal’s power to amend or set aside an order made in the absence of a party is outlined in section 56(c) of the ACAT Act, and Rule 70(7) of the ACT Civil and Administrative Tribunal Procedures Rules 2020. The tribunal must consider factors such as the reason for the party's absence, whether their attendance would have made any difference to the outcome, and the time that has passed between when the orders were made and the application to set them aside was filed.

The tribunal considered the genuine mistake made by Mr Thomas and his prompt action upon realising the error as reasons to set the decision aside. However, the tribunal also weighed the concerns about proportionality and whether the tenant’s submissions would have made any difference to the outcome. Ultimately, the tribunal decided that the interests of justice did not justify setting aside the ex parte decision. The tribunal dismissed the appeal and ordered that the appeal be dismissed.

This outcome reflects the tribunal’s consideration of the balance between procedural fairness and the need to prevent undue delay in the proceedings. While Mr Thomas’s mistake was genuine and he acted promptly, the tribunal found that the reasons for absence and the potential impact on the outcome were not sufficient to warrant setting aside the decision. The tribunal's decision underscores the importance of adhering to procedural requirements while also considering the practicalities and efficiency of the legal process.

Orders

Orders of the court

The Tribunal orders that:

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Neither the tenant nor his representative attended the 1 December 2020 hearing. While this was surprising, I declined to adjourn the matter again. In reaching this decision, I formed the view that the interests of justice, both to the parties and to the justice system, could not justify a further adjournment. Amongst other considerations, the matter in dispute was not large and was indeed exceeded by the appeal fee. The tribunal had already borne the cost of acquiring the transcripts of the termination and possession hearing, the original hearing and the appeal, as well as the costs of conducting the hearings. Both parties were represented by paid representatives, and each further hearing cost them more. The resources expended were already grossly disproportionate to the quantum in issue. Accordingly, at 10:10am, I proceeded to determine the matter without the benefit of Mr Thomas’ further submissions (the ex parte decision). I delivered brief oral reasons on that day. Shortly thereafter, the tenant’s representative filed a second interim application seeking to set aside the ex parte decision. The interim hearing was listed for 6 December 2021. It is to that I now turn. At the interim hearing on 6 December 2021 Mr Thomas explained that he had relied on an older invitation and had logged into the wrong ‘Webex’ room. He said that he contacted the tribunal shortly after that became obvious. Registry has advised me that Mr Thomas contacted the tribunal at around 10:20am. The tribunal’s power to set aside the orders made on 1 December 2021 is found in section 56(c) of the ACAT Act which states, relevantly, that:The tribunal may, by order–…(c) amend or set aside a tribunal order if–(i)the order was made after hearing an application in the absence of a party; or Rule 70(7) of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (the Tribunal’s Rules) provides that:In considering whether to set aside a final order made in the absence of a party, the tribunal must take into account the following:(a) the reason why the party was absent;(b) whether it might have made a material difference to the outcome if the party had attended;(c) anything else the tribunal considers relevant. As was observed by Presidential Member McCarthy in Powley & Anor v Reynolds[16] at [30]:Whilst the power to set aside an order made in the absence of a party (or ex parte) is stated at large, the Tribunal exercises the power only where it is in the interests of justice to do so. It must be exercised “reasonably and rationally, having regard to the area of jurisdiction in which the tribunal is sitting.” Factors such as the reason/s for why the party was absent, whether their attendance would have made any difference to the outcome and the time that has passed between when the orders were made and the filing of the application to have the orders set aside are all relevant.[16] [2018] ACAT 103 In relation to the reason for the absence, the tenant’s representative appears to have made a genuine mistake. Once he realised, he acted quickly. This is a reason to set the decision aside. Against this are the concerns about proportionality noted above, and the question of whether the tenant’s submissions would have made any difference to the outcome.

Ratio Decidendi

Legal Principle Established

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