Wittman v Dennis & Anor (Appeal)

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.