1. a response setting out the orders the respondent seeks; 2. a written timeline of events;

1. a written statement by every witness who the respondent will call to give evidence at the hearing;

1. any expert's report the respondent will rely on at the hearing; 2. any invoices, quotes, receipts, photographs, emails or other material the respondent relies upon; 3. any expert's report the respondent will rely on at the hearing; and 4. the respondent must inform the Tribunal and applicants by 12 October 2018 if they require the applicants' expert witnesses to be available for cross-examination.
2. By amended application dated 11 September 2018, the applicants increased the amount claimed to $25,000. They advised that they would still be submitting their evidence by 14 September 2018 as previously ordered, and therefore contended that the hearing date of 2 November 2018 "should not be affected". As best I can ascertain, the applicants have not altered the basis of their claim.
3. On 13 September 2018, the Tribunal amended the orders made on 17 August 2018 by extending the date (in order 4) by which the applicants were to file their material from 14 to 19 September 2018, and by extending the date (in order 5) from 19 to 24 September 2018. The Tribunal confirmed that the matter remains listed for hearing on 2 November 2018.
4. On 15 October 2018, in response to an application from the applicants arising from Mr Polleycutt's conduct, the Tribunal made the following ex parte order:

Mr Eric Polleycutt is removed as the representative of the respondent in this matter and Mr Eric Polleycutt must not take any further part in this proceeding.

1. By application dated 9 October 2018, but filed on 17 October 2018, the respondent sought (in substance) the following orders:
   • (a) that the orders of the Tribunal made on 17 August 2018 and 15 October 2018 be set aside;
   • (b) that the "matter be joined with or in the alternative administered and heard at the same time as XD 334/2017 & XD 800/2017";[1]
   • (c) that Mr Mark Boyle, Ms Tracy Gramlick and Mr Leigh Wallis be joined as parties to the proceeding;
   • (d) that the respondent receive a copy of correspondence between Louise Powley and Mr Boyle to the effect that Camden windows (meaning the kind of windows installed in the applicants' home) "don't meet required standards to be installed in Australia";
   • (e) that the respondent have access to the applicant's property to inspect and photograph the installed windows;
   • (f) that the applicants provide the respondent with written authority permitting the respondent to inspect the building file and relevant certification files of the property where windows were installed including "the block and section numbers of the homes where windows were installed and signed by ALL current registered ACT LEASE HOLDERS on file records"; and
   • (g) The matter be "listed for directions after suitable timeframe for inspections to occur and/or reports to be compiled."
2. The respondent filed with his application attachments A, B, C, D and E. Attachment A concerned proceeding XD 334/2018 in which David and Louise Powley made a claim against the respondent for compensation in terms materially the same as the applicants' claim against the respondent.[2] Attachment B concerned the applicants' claim against the respondent. Attachment C concerned proceeding XD 800/2018 in which Kavita Verma and Will Rees have also sued the respondent for compensation in terms materially the same as the applicants' claim against the respondent. Attachments D and E were broad ranging submissions in response to all three claims.
3. The respondent filed interim applications in proceedings XD 334/2018 and XD 800/2018 in materially the same terms as the interim application filed on 17 October 2018 in this proceeding. Attachments A-E were also filed with each of the other applications, presumably on the basis that the different attachments would be relevant, or not, according to the proceeding in issue and because the respondent had applied in each case for an order that the "matter be joined with or in the alternative administered and heard at the same time" as the other two matters. On 23 October 2018 I heard the application and the similar applications in proceedings XD 334/2018 and XD 800/2018. The respondent attended with Mr Polleycutt. So did the applicants, and the applicants (save for Mr Rees) in each of the other two proceedings.
4. At the end of the hearing I made orders in this proceeding (and in the other proceedings) and said that I would publish my reasons. I now do so.

1. The first part of the respondent's interim application was for an order setting aside the Tribunal's order made on 15 October 2018 removing Mr Polleycutt as his representative.
2. Mr Reynolds spoke to the application. He contended that he did not know how to defend the applicants' claim and needed Mr Polleycutt to be his representative for this purpose. He said that he could not respond to the order removing Mr Polleycutt as his representative because he did not know why the order was made.
3. The applicants opposed the respondent's application. They contended, as they had before Presidential Member Daniel, that Mr Polleycutt's conduct and representation of the respondent was contrary to the third and fourth objects of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), section 6, which state:

(b) to ensure that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal; and

(c) to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice.

1. Removal of a representative is governed by rule 8 of the ACT Civil and Administrative Tribunal Procedure Rules which provides:
   1. Removing representatives

(1) This rule applies if a party to a proceeding in the tribunal is being represented by someone else (the representative).

(2) The tribunal may, by order, stop the representative from taking any further part in the proceeding.

_(3) However, the tribunal may only make an order under subrule (2) if satisfied that - _

(a) the representative does not have sufficient knowledge of the issues in dispute in the proceeding to allow the representative to effectively represent the party at the hearing of the proceeding; or

(b) the representative does not have sufficient authority to bind the party; or

(c) the representative's representation is inconsistent with the objects of the Act.

Note 1 The tribunal must observe natural justice and procedural fairness (see the Act, s 7).

Note 2 The objects of the Act are in the Act, s 6.

1. In court proceedings, a party may appear before the court "either personally or by a lawyer".[3] 'Lawye' is defined in the Legislation Act 2001 to mean a "legal practitioner" which is in turn defined to mean "a person who is admitted to the legal profession under the Legal Profession Act 2006 or a law that is a corresponding law for that Act." The Legal Profession Act 2006 in turn imposes innumerable professional obligations upon lawyers concerning the manner in which they represent a person in court.
2. In Tribunal proceedings, a party can be represented by a person other than a lawyer. However, in my view, the privilege of representation still brings with it a responsibility to present the party's case in a proper, constructive manner that furthers the objects of the ACAT Act. Rule 8(3)(c) permits the Tribunal to stop the representative from taking any further part in the proceeding where the representative is not doing so.
3. In my view, for the reasons that follow, Mr Polleycutt's representation of the respondent was inconsistent with the objects of the ACAT Act and, in my view, deliberately so. His conduct amounted to overt and repeated attempts not to meet the applicants' claim, but to avoid and delay its resolution. The orders that the respondent sought in his interim application were, in themselves, illustrative of the tactic. I give some examples.
4. The file records that by email sent on 18 September 2018, the Tribunal advised the respondent that the application to remove Mr Polleycutt as his representative was listed for hearing on 15 October 2018 at 11:00am. The email attached a copy of the application and listing notice. Mr Polleycutt confirmed receipt of the notice, by sending an email on 18 September 2018 stating "The Respondents (sic) requires a hard copy served". The respondent sent another email on 12 October 2018 asking for the matter to be "set out of the list until suitable and acceptable attorney has considered all applications; responded and is provided reasonable time and resources to defend the application as required by Mr Chessell". That request was for the Tribunal to decide at hearing or beforehand, but neither the respondent nor Mr Polleycutt attended the hearing.
5. I reject the proposition that a party can defeat an application simply by not attending the hearing. The respondent's claim that he did not know why Presidential Member Daniel made her order was a problem of his own making.
6. By email sent on 15 October 2018 at 7:06pm, the respondent requested "the recorded basis" of the decision. He requested the Tribunal "undertake a review of the orders" and said that if this "is not procedurally possible to have the procedural requirements for the Matter to be appealed."
7. The respondent received a response the next day advising that the member could provide written reasons for decision or instead a transcript of the reasons for decision. In answer, the respondent spoke about lodgement of an appeal, that the orders "appear not to consider the respondent's submission in any respect" and requested that the matter be "stood out of the list while ACAT administers these fundamental issues".
8. However, determinative of my conclusion that Mr Polleycutt's representation of the respondent has been designed to defeat the objects of the ACAT Act is the respondent's non-compliance with the procedural directions made on 17 August 2018. These orders were made to enable the hearing to proceed on 2 November 2018 and to ensure that the application is resolved "as quickly as is consistent with achieving justice". In his capacity as the respondent's representative, Mr Polleycutt's main responsibility after his appointment as the respondent's representative on 17 August 2018 should have been to assist the respondent in his compliance with order 6, yet the respondent had not filed any document in response to order 6 by 12 October 2018 (as ordered) or by 23 October 2018 when I heard the respondent's application.
9. At hearing, the respondent referred to attachment B to his interim application as his documents filed in compliance with order 6. However, when asked, he could not take me to any sentence or part of Attachment B that responded to order 6. Attachment B, instead, challenged innumerable matters that were completely irrelevant, for example challenging the validity of a power of attorney allowing a person to represent Mr Quinn notwithstanding the fact that Mr Quinn by consent is no longer a party to the proceeding. The bulk of Attachment B, in my view, was incomprehensible. The respondent said that he and Mr Polleycutt prepared the interim application and its attachments "collectively".
10. The respondent submitted that without Mr Polleycutt's assistance he was unable to meet the claim against him. He contended that he did not understand the applicants' claim. The contention was disingenuous. The claim is quite simple: the applicants allege that the windows that the respondent installed in their house do not comply with applicable Australian Standards and were, in substance, installed in a faulty manner. The respondent claims to have been installing these windows in the course of carrying on his business for the past 15 years. He should be better placed than most to show that the windows comply with Australian Standards (if they do), and to meet the claims about faulty installation. Instead of doing so, Mr Polleycutt has drawn the respondent into an application, willingly or otherwise, intended in my view only to frustrate resolution of the dispute.
11. In Aon Risk Services Australia Ltd v Australian National University[4] the High Court said:
    1. The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. In Bomanite Pty Ltd v Slatex Corp Aust French J said of Bowen LJ's statements in Cropper v Smith:

"... That may well have been so at one time, but it is no longer true today ... Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary." (footnotes omitted)

1. In its recent decision, UBS AG v Tyne,[5] the High Court discussed the overriding importance of the efficient and timely administration of justice in the context of an application for proceedings to be permanently stayed as an abuse of process. By a majority, the Court determined that the proceedings should have been permanently stayed. The minority (Nettle and Edelman JJ) disagreed on the facts, but not on questions of principle.
2. Kiefel CJ, Bell and Keane JJ said:
   1. The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute ... Integral to a "just resolution" is the minimisation of delay and expense. ... These considerations inform the rejection in Aon of the claimed "right" of a party to amend its pleading at a late stage in the litigation in order to raise an arguable claim. The point is made that a party has a right to bring proceedings but that choices are made respecting what claims are made and how they are framed. Their Honours speak of the just resolution of the dispute in terms of the parties having a sufficient opportunity to identify the issues that they seek to agitate.

1. The courts must be astute to protect litigants and the system of justice itself against abuse of process. It is to hark back to a time before this Court's decisions in Aon and Tomlinson and the enactment of s 37M of the FCA to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the "just, quick and efficient" resolution of litigation. To insist, for example, on "inexcusable delay" as a precondition of the exercise of the power to stay proceedings as an abuse of process is to fail to appreciate that any substantial delay is apt to occasion an increase in the cost of justice and a decrease in the quality of justice. And other litigants are left in the queue awaiting justice. Further, there is no reason why the courts should tolerate attempts to manipulate other parties and the courts themselves by the deployment, by a single directing mind and will, of different legal entities under common control for such a purpose. The concern is as to whether the processes of the court are being abused. Given that this is the central concern, the circumstance that the abuse is effected by the use of multiple entities orchestrated by a single mind and will is no reason to tolerate it.
2. Gageler J discussed the issue as follows:
   1. ... There is a public interest in the timely and efficient administration of civil justice. The importance of that public interest has only increased in the years since Lord Bingham spoke.
   2. Dowsett J sought to capture that public interest when he referred in dissent in the decision under appeal to the abusive character of litigious conduct which, if permitted, would lead "the right-thinking person" to perceive the system for the administration of civil justice to be "inefficient, careless about the incurrence of cost by the parties, and profligate in the application of public moneys". His Honour's anthropomorphic allusion was evidently drawn from the frequently quoted description of the power to prevent an abuse of process in terms of an "inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people"..
   3. Although undoubtedly capable of application in circumstances in which use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute, the doctrine of abuse of process has repeatedly been recognised to be insusceptible of a formulation which would confine it to closed categories. In the context of the application of the doctrine to the bringing of successive proceedings, consistently with the analysis of Lord Bingham, I think it better in weighing the private and public interests involved to eschew the extremes of private "oppression" and of public "disrepute". The relevant public interest is ordinarily appropriately identified in more general and less emotive terms as the timely and efficient administration of civil justice. (footnotes omitted)
3. In White v Overland, the Federal Court per Allsop J (as he then was) said:

... by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. .... Litigation is not a game. It is a costly and stressful, though necessary, evil. To paraphrase Roscoe Pound from "The Causes of Popular Dissatisfaction with the Administration of Justice" (1906) 29 ABA Rep 395, 404-406, the "sporting theory of justice" and any behavioural manifestation of it should be seen as a survival, or better, a relic, of the days when a lawsuit was a fight between two clans: cf Jackamara v Krakouer (1998) 195 CLR 516 at 526-527 per Gummow and Hayne JJ.[6]

1. In Monaghan v Australian Capital Territory, the Supreme Court, per Mossop ASJ (as he then was) said:

1. It is, unfortunately, necessary at the outset to outline some obvious propositions:

(b) The power to give directions is fundamental to the proper management of cases and hence to the administration of justice.

(c) Compliance with directions is essential in order to meet the goals of r 21 of the Court Procedures Rules 2006 (ACT) (the Rules) namely the just resolution of the real issues in the proceedings with a minimum of delay and expense.

(d) Lawyers representing clients in the Court have a professional duty to assist their clients to fulfil their obligations under this rule. That involves them conducting themselves honestly and professionally in the light of the recognition that: 'Litigation is not a game. It is a costly and stressful, though necessary, evil' (White v Overland [2001] FCA 1333 at [4]).

(e) The fact that a lawyer's client may be impecunious is not a factor which reduces his or her professional obligations either to the client or to other parties to proceedings.[7]

1. In Powley v Reynolds[8] I refer to similar comments made by the ACT Supreme Court, per Burns J, in Group Konstrukt Pty Ltd v Arrow International Australia Ltd.[9]
2. The President of the Tribunal expressed similar sentiments in Commissioner for Social Housing v Williams[10] in the context of an application to extend time for leave to appeal. The President of the Tribunal referred to several decisions of the ACT Supreme Court and English decisions underlining the importance of timely and cost efficient resolution of disputes. Determination of applications for amendments or adjournments or reliance on evidence filed late must take into account prejudice to other parties, particularly where the grant of an application necessitates vacation of the hearing date.
3. By the close of the hearing on 23 October 2018, I was satisfied that Mr Polleycutt's representation of the respondent "is inconsistent with the objects of the Act" and warranted his removal as the respondent's representative under rule 8(c). I deal briefly with each of the other orders sought in the respondent's interim application to explain why, in my view, they were baseless, and sought only to further the respondent's and Mr Polleycutt's tactic of avoidance and delay.

Application to set aside the orders of 17 August 2018

1. To set aside the directions made on 17 August 2018, amended on 13 September 2018, including vacating the hearing date would have been a very significant step, noting that the Tribunal is a forum established and run at public cost to enable small claims to be resolved as quickly as is consistent with achieving justice.
2. The respondent installed the windows in the applicants' home in 2016 and 2017. The applicants have been waiting for resolution of their claim for nearly a year. I accept that to vacate the hearing date, probably to a date in 2019 having regard to the reasons why the respondent applied for all the procedural directions and the hearing date to be vacated, would have caused the applicants considerable distress and frustration.
3. The respondent gave no explanation for why he had not complied with the procedural directions regarding filing and service of his evidence, save perhaps him stating that he did not understand the applicants' claim. As mentioned, I regard that is disingenuous. Even if it were true, he has had months to inquire.
4. The application to set aside the procedural directions, including the hearing date, was made with reliance on all the other procedural and preparatory actions that, the respondent said, needed first to occur as detailed in the further orders sought. Two difficulties arose. First, they were baseless. Secondly, if the respondent wished to pursue these issues he should have done so long before. The further orders work, in my view, only to pursue the respondent's and/or Mr Polleycutt's endeavour to delay and avoid.

1. Mr Boyle is an officer with the Office of Fair Trading that carried out an investigation into a claim that the windows that the respondent supplied were sourced from overseas, and were not compliant with Australian Standards. He had no role in the supply or installation of the windows. The suggestion that he be joined as a party to this proceeding was nonsensical. In any event, if such an application were to be entertained, it should have been brought soon after these proceedings were commenced in January 2018. It would have required service of the application on Mr Boyle and him having an opportunity to respond to it. To file an application on 17 October 2018 for an order that Mr Boyle be joined as a party in a matter to be heard on 2 November 2018 was, in my view, nothing more than a tactic designed to obstruct and delay.
2. Ms Gramlick is the Chief Executive Officer of Australian Windows Association. Her only role, so far as I could tell, was to inform Mr Boyle of her understanding that the Camden windows that the respondent installed in the applicants' home do not comply with Australian Standards. The proposition that she be joined as a party to this application was again, and for the same reasons, nonsensical. She had no role in the supply or installation of these windows.
3. Mr Wallis (the respondent alleges) is a director of Smith and Sons, who, the respondent alleges, provided false expert advice. Again, regardless of whether the respondent could establish that the advice was "false" , it would not be a basis to join Mr Wallis as a party to this proceeding. Again, the only rational purpose for the application, in my view, was to avoid the hearing on 2 November 2018.

Correspondence between Louise Powley and Mark Boyle

1. It would appear from Ms Powley's witness statement dated 9 September 2018 that in late 2017 she contacted Mr Boyle regarding her own experiences with the respondent, and that Mr Boyle informed her that "it appeared the windows and doors had never been tested to conform to Australian Standards."
2. Regarding the proposed order, there is no suggestion that correspondence between Ms Powley and Mr Boyle exists or (if it does exist) that Ms Powley is refusing to provide it. In any event, if the respondent wished to obtain such correspondence, assuming it exists and assuming Ms Powley and Mr Boyle are refusing to provide it, the proper means for the respondent to obtain the correspondence is by subpoena. That preparatory step should have occurred long ago.

1. There were many problems with this application. First, I was not persuaded that the Tribunal can order the applicants to provide written authority for the respondent to inspect files held by the ACT Planning and Land Authority regarding their home or other homes where windows have been installed, meaning (presumably) windows installed by the respondent. Even if there were such a power, I could see no reason why it should be exercised. The respondent could not identify any document that was or might be on any ACTPLA file pertaining to the applicants, or to any windows, that would or might be relevant to the case. Again, the proposed order seemed to have no purpose but avoidance and delay.
2. Second, the respondent seeks access to all files where windows have been installed, signed by all ACT leaseholders. In addition to the logistical nonsense of this application, such files would be irrelevant. This is a case about windows installed in the applicants' home, not anywhere else.

1. The proposed order for access and inspection was, again, in my view no more than a tactic for avoidance and delay. The respondent carried out the work in 2016 and 2017. These proceedings commenced in January 2018. To apply for access two weeks or so before the hearing was, in my view, not for the purpose of presenting his case but for the purpose of avoidance and delay.

[1] The stated matter numbers are incorrect, and are XD 334/2018 and XD 800/2018. Final orders have been made in XD 334/2008: see Powley v Reynolds [2018] ACAT 103

[2] Final orders have been made in that matter. See Powley v Reynolds [2018] ACAT 103

[3] Court Procedures Act 2004, section 65

[4] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 at [99]

[5] UBS AG v Tyne [2018] HCA 45 (17 October 2018)

[6] White v Overland [2001] FCA 1333 at [4]

[7] Monaghan v Australian Capital Territory [2015] ACTSC 187 at [5]

[8] Powley v Reynolds [2018] ACAT 103

[9] Group Konstrukt Pty Ltd v Arrow International Australia Ltd [2012] ACTSC 14 at [19] - [22]

[10] Commissioner for Social Housing v Williams [2017] ACAT 53 at [20]