I encourage you to attend Canberra Community Law (formerly Welfare Rights and Legal Centre) to seek legal advice.

1. Unfortunately, the circumstances surrounding the service of these documents on 18 February 2016 appear to have added to the confusion in this case, rather than minimising it. The evidence of Mr Hutchings was that there a long standing animosity between himself and one of the housing officers who came to serve the documents, and that ACT Housing had previously advised him that he would not have to deal with that officer again. Allegedly, as a consequence of that officer's attendance, and his inappropriate conduct while there, a low-level altercation ensured between the officer and Mr Hutchings. The officer left, leaving "a thick envelope" of documents on the doorstep. Mr Hutchings alleges that he rang Housing to make a complaint about the incident, but was accused of lying and "shut down", so he "just didn't see the point" of pursuing the matter further. [4] As a consequence of this series of events, Mr Hutchings was not minded to open the envelope or read the documents.
2. Further, in relation to the documents, Mr Hutchings gave the following evidence:

Ms Gould: Did they explain anything about the documents? --- They didn't explain and I didn't worry about it.

Did they tell you anything about the Tribunal hearing? --- No. They just told me that the paperwork was to do with the Tribunal.

Okay, so you knew there was a tribunal hearing? --- I didn't know there was a tribunal hearing.

What did you think the paperwork was? --- I knew it was paperwork to do with the tribunal but I didn't read it and I still haven't read it to this day.[5]

1. I accept that ACT Housing's choice of officer to deliver this paperwork may not have been ideal. I accept that, as a consequence of the altercation, Mr Hutchings was perhaps not as inclined to read the documents as he otherwise may have been. However, it is quite apparent from this evidence that, as at this date, Mr Hutchings knew that a process involving him and Ms Krutsky had been commenced at the tribunal. He also had been given the relevant documentation, both by the applicant and the tribunal. He made a choice - albeit an unwise one - not to read this documentation.
2. Still, it does seem that the respondents, around this time, did read some documentation relating to the proceedings. To their credit, they took steps to get legal representation and advice to assist them to respond to the application.
3. Canberra Community Law's (CCL) submissions set out a series of communications between its officers and the respondents. The submissions are carefully worded so as to minimise any risk of a waiver of privilege, but CCL frankly accepts (whether fairly or not) some of the responsibility for the respondents' inability to get legal advice at an early stage in these proceedings. This, CCL submits, amounts to an explanation for their failure to attend the hearing.
4. CCL's submissions indicate that on 19 February 2016 a volunteer at CCL took a message on behalf of both respondents.[6] The message stated that the respondents were seeking advice on: "How should they proceed in regards to the documents? Can housing arrive at the house unannounced?" While the 'documents' referred are not detailed in the message, CCL submits that the following documents were attached to the file note on their files:
   • (a) An email from Ms Krutsky, in which she (inter alia) stated that "all we want is a suitable house to be transferred to" and asked for advice on "how to put my case forward or a meeting to better explain our situation with housing act to someone who can help us, some representation would be amazing also";
   • (b) the orders of 4 February 2016; and
   • (c) a subpoena dated 12 February 2016, stating the return date as 23 February 2016.
5. According to CCL's submissions, on 25 February 2016 a staff member at CCL called Ms Krustky and gave advice about interacting with housing officers, and about their request for a transfer, but apparently offered no advice on the orders of 4 February 2016 or about how to "put [her] case forward".
6. CCL's submissions further state that a staff member called Ms Krutsky again on 8 March 2016. Notes indicate that during this conversation, Ms Krutsky confirmed that she was still seeking legal representation and said that she was unclear if the matter had been listed for a substantive hearing. The advice given was summarised as being that:

[CCL] would need to review a copy of her documents before we could consider representation.

The advisor also notes that the phone cut out at this stage and she could then not get back through to Ms Krutsky's phone. The advisor seemed to be unaware that Ms Krutsky had in fact already provided documents to CCL including directions stating that the matter had in fact been listed for a substantive hearing.

1. For whatever reason it is apparent that the parties discontinued communication for some time after this telephone call, until the respondents finally received the TPO.
2. During the interim hearing Mr Hutchings gave evidence about two telephone conversations he had with CCL. He explained that when he called, he:

...was answered by a lady on the phone. I'm not sure 100 per cent by names or anything but I think she was front reception. I told her that we were going to be needing legal representation. I told her that we were going through the tribunal. I told her why. I told her that we had been through the tribunal previously and that we used this branch previously before they were renamed I believe. She then told me that because of the changes that there would be a good chance that they wouldn't be able to represent me but they should be able to give advice. I got pretty upset at that at the time because I could not see how you couldn't like represent a family in need, I suppose, when you're there to do that. At that point they hadn't explained to me why they couldn't so I just left it.

1. This appears to be Mr Hutchings' recollection of the telephone conversation described by CCL in paragraph 19 of these reasons.
2. He described his next contact with the CCL as follows:

The second time I called back, I'm not sure whether it was a week or maybe two later, I thought maybe, just by some chance, after I'd talked to Legal Aid, that I might be able to get someone to help and they still said that they wouldn't be able to represent, only to give advice so I left it.[7]

1. Mr Hutchings then stated that on the third occasion he contacted CCL, sometime later, he finally got representation.[8] I will come to that shortly.
2. Ms Krutsky's recollection of her three telephone calls to CCL was as follows:

We called Welfare Rights and Legal Centre but they had changed to Canberra Community Law. They said that they could no longer help us. They could only offer advice and I said that I'd probably have to represent myself and could I get some advice on how to even go about representing myself in the case and they said that they could probably do that but like you said, we didn't get a call back. We tried to call them back again. We were told that we wouldn't be able to be helped and then my partner spoke to them the other day, after we got the notice, the warrant to actually leave, and we realised that we had two days to leave and then we were helped.[9]

1. Whatever the minor discrepancies in the recollection of the various players, it seems clear that at the first telephone call of around 18 February 2016, Ms Krutsky and Mr Hutchings had been given advice that CCL may be able to provide advice, but perhaps not representation. They were advised that they may have to represent themselves. Although there was some follow up, no offer of representation was ever made and CCL was not instructed to represent the respondents at or prior to the final hearing. CCL did, however, provide some advice to the respondents in relation to dealing with Housing.
2. Mr Hutchings gave evidence that he attempted to contact Legal Aid and the Aboriginal Legal Service, although it appears he only made a formal application for assistance in May.[10]
3. From early March there was a series of orders for the inspection and production of documents, including notices of listing for a return of subpoena of 1 March 2016, 22 March 2016 and 5 April 2016. The respondents received documentation about interim hearings. By way of example, on 22 March 2016, the applicant wrote to the respondents enclosing one such subpoena. The cover letter that included the words:

we encourage you to attend the ACT Civil and Administrative Tribunal (ACAT) on that date (5 April at 9.30am).

1. The respondents thought that these interim hearings were (not incorrectly) "about evidence being brought in or something"[11] and did not attend. They argued that the volume of correspondence, particularly that relating to hearings on the return of subpoenas, was confusing. I have no reason to doubt this assertion. I accept that the respondents became confused as to the stage that the proceedings were at, and what hearings they were required to attend, and which we only about return of subpoenas.
2. Still, the fact is, they did not attend any of the hearings.
3. Each document sent to the respondents by the tribunal contained the contact information for the tribunal, either in the body of the letter or in the header or footer of the document. For example, on 23 February 2016, the tribunal sent a copy of Orders made in relation to the return of subpoena on that date, and the covering letter included the words: "if you have any queries, please contact this office on (02) 6207 1740."
4. Despite this, the respondents did not make contact with the tribunal at any time in relation to any of these matters. In reply to questioning about why they did not, both Ms Krutsky and Mr Hutchings stated that they did not know what they could contact the tribunal directly.[12] I do not accept this assertion, for reasons set out below.
5. On or about 18 May 2016 the respondents were served with copies of the applicant's witness statements from five witnesses. There is no dispute that these documents were properly served on Mr Hutchings, as under cross examination, Mr Hutchings agreed that he received the statements, saying that "the main paperwork I read through the tribunal proceedings were the witness statements as I picked out a lot of lies."[13]
6. In response to questions from Mr Phillipson and the Tribunal, Mr Hutchings gae the following evidence:

MR PHILLIPSON: So you chose to read the witness statements; is that correct?---Yes.

But you didn't choose to read any of the other documents that were sent to you?---No.

You chose not to?---No, it's not that I chose not to. It's that I understood what the witnesses were doing. I understood what that was about. I'm not going to just sit there and read what I don't understand because that's just useless to understand.

SENIOR MEMBER ROBINSON: So what did you think the witness statements were for?

What did you think the witness statements were for?---The witness statements are their versions of what they think I've done.

And why do you think they were given to you?---To read.

1. Mr Hutchings then proceeded to briefly state the basis upon which he considered the statements were wrong.[14] The statements add flavour to the respondents' argument that they have a reasonable case, but I do not need to consider this further, as I am satisfied that the respondents had at least some basis for an arguable case. Under further cross examination by Mr Phillipson as to what he did after receiving the statements, Mr Hutchings stated that he contacted his worker from Gugan Galan "that very minute" to ask for assistance, but he did "...nothing immediately. I was waiting to get to the Tribunal to defend myself".[15]
2. Other evidence before the Tribunal also indicates that Mr Hutchings contacted Legal Aid and made an application for legal assistance.
3. The case came back before the Tribunal for final directions on 5 May 2016. Again, there was no appearance by the respondents. President McCarthy noted that the orders of 4 February 2016 had been served by express post and had not been returned to the Tribunal. President McCarthy made directions for the filing of further evidence by the applicant. Those orders were mailed to the respondents, and were not returned to the Tribunal as undelivered.
4. The matter proceeded to final hearing on 25 May 2016. President Daniel decided to hear the matter in the absence of the respondents. The Commissioner's representative took her through the evidence, including the witness statements, and she listened to an audio recording that had been filed by the applicant. The Commissioner had made five witnesses available for cross examination, but having heard the recording, President Daniel determined that she did not need to ask them any questions. She asked for submissions from the Commissioner's representative, questioned him, and delivered oral reasons. President Daniel conducted a full hearing; she did not deliver a default judgement. She gave oral reasons. She made the TPO.
5. Once served with the TPO of 25 May 2016, the respondents were apparently able to obtain legal advice and representation from CCL. The respondents lodged an application to set aside the TPO on 30 May 2016.

1. This was the second application for a termination and possession order brought by the Commissioner against the respondents.
2. The first application was commenced on 16 April 2013, shortly after the respondents moved into the current property. The basis of the first application was substantially similar to that of the current proceedings. The previous application was successful at first instance, but was overturned on appeal because of a procedural defect. I do not know what happened after that appeal was decided, but that eviction process appears to have been abandoned by the Commissioner for some time.
3. The previous proceedings are relevant for four reasons:
   • (a) First, the respondents submitted, had they been in attendance at the hearing, it would have been open to them to argue that these proceedings are 'retaliatory proceedings', thus engaging a presumption in section 57 of the RT Act that must be displaced by the Commissioner. This may have affected the manner in which the hearing was conducted, and may go to whether there was an 'arguable case'. I accept that this is at least arguable, although put it no higher than that.
   • (b) Secondly, it appears that there is an argument that some of the evidence relied upon in these proceedings should not have been considered by the Tribunal because it was used in previous proceedings. Again, this goes to the 'reasonable case' argument. I accept that this is arguable, but again put it no higher than that.
   • (c) Thirdly, it is not the case that the respondents are completely unfamiliar with tribunal processes. While I accept that they were represented in the earlier case, and that the lack of representation in these proceedings makes this experience quite different, I am unable to accept that the respondents are ignorant of tribunal processes.
   • (d) Fourthly, Ms Krutsky's evidence to the Tribunal was that, following the first proceeding, she was advised that the eviction process might start over again, and that it might need to "go back to the tribunal or whatever".[16] Accordingly, this application cannot have come as a complete surprise to her, and she must have been aware that a termination and possession may be made.

1. Section 44 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) expressly provides that if a party fails to appear either personally or by a representative, the tribunal may proceed to hear the matter in that party's absence.
2. The tribunal's power to set aside a decision made in the absence of one party is found in paragraph 56(c)(i) of the ACAT Act, which provides that:
   1. Other actions by tribunal

(i) the order was made after hearing an application in the absence of a party; or

1. The ACAT Act does not set out any criteria for the exercise of power under section 56. The discretion is broad. This is not surprising, as equivalent powers in other Acts in other jurisdictions are similarly worded. It may also be relevant that the tribunal's jurisdiction is itself very broad, encompassing diverse matters, from contested civil proceedings through to applications for mental health orders. Perhaps it was thought unlikely that a single set of principles could apply to all matters before the tribunal where a party may be absent?
2. Nonetheless, while the tribunal's discretion to set aside matters is broad, it must be exercised reasonably and rationally, having regard to the area of jurisdiction in which the tribunal is sitting. Guidance about when it is appropriate to set aside a decision made by the tribunal exercising its civil jurisdiction can be found in the legislation, broader common law principles, and in earlier decisions of this tribunal and other courts.
3. The starting point for any consideration should be the principles in section 7 of the ACAT Act. These relevantly provide that:
   1. Principles applying to Act

_In exercising its functions under this Act, the tribunal must - _

(a) ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice; and

(b) observe natural justice and procedural fairness.

1. The concepts of natural justice and procedural fairness encompass the right to a fair hearing (although not necessarily a 'fair' outcome).[17] A fair hearing requires, amongst other things, that a person whose interests are affected by a decision must ordinarily be given a right to be heard. As was observed by Kirby J, in his oft-cited decision in Allesch v Maunz [2000] HCA 40:

It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as "an indispensable requirement of justice" Re Brook and Delcomyn [1864] EngR 418; (1864) 16 CB (NS) 403 at 416 per Erle CJ [1864] EngR 418; [143 ER 1184 at 1190]. The maxim is audi alteram partem, audiatur et altera pars. See Broom, A Selection of Legal Maxims, 10th ed (1939) at 65; cf Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 589; The Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395-396. It is a rule of natural justice or "procedural fairness" Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 583. It will usually be imputed into statutes creating courts and adjudicative tribunals ... [18]

1. As should be obvious from the phrasing of section 7 of the ACAT Act, the rules of procedural fairness and natural justice is not just imputed into the tribunal's procedures - they are expressly included. The right to be heard must be the starting point to any consideration of whether to set aside a decision that has been made in the absence of a party.
2. However, while natural justice requires that a person be given a right to be heard, it does not require that the person actually be heard before a decision can be made. As Kirby J went on to observe in Allesch v Maunz:

... Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.

Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation. [19]

1. Turning to the specific issue of when a decision made in the absence of a party should be set aside for a lack of procedural fairness, Kirby J concluded at paragraphs 49 and 50 of Allesch v Maunz that:

If no reasonable explanation is given for the default, it is not an injustice to deny the party in default a second opportunity to be heard. That opportunity is taken to have been waived or forfeited. Nowadays, the consideration of the reasonableness of an explanation will take into account the legitimate interests of any other party affected by the court's order (including any innocent third parties) as well as the general public. The interests at stake include a general respect for the finality of judicial orders and for the efficient management of judicial proceedings that is consistent with their fundamental objectives, including the attainment of justice.

Similarly, there will be no miscarriage of justice if the party affected by the impugned order cannot demonstrate an arguable case that reopening the matter might reasonably produce a materially different result which is more favourable to that party. If the process by which that order is made is flawed, but it is not shown that the outcome might reasonably be materially different, the party offended by the process may be upset by a sense of procedural injustice. However, upon analysis, that feeling will not find reflection in the ultimate disposition of the rights and duties of the parties with which the law is finally concerned. Correction concentrates on any supposed error in the ultimate judicial orders and not exclusively on the procedures leading to, or reasons given for, those orders_._

1. Numerous tribunal decisions have applied the 'dual test' set out by Kirby J in Allesch v Maunz. An example is Thornthwaite v Commissioner for Social Housing [2012] ACAT 11, where the test was described as follows:

The first test is, is there a good reason why the applicant did not turn up at the original hearing? And secondly, if that is the case, is there then a reasonable case? Does the applicant actually have a reasonable case which indicates the matter should be set aside and the case be heard?

It is a two-pronged test. Both are needed to succeed. [20]

1. In oral submissions before the Tribunal, both parties broadly accepted the dual test as the appropriate test to be applied in this case. However, I doubt that these are the only tests that should be applied.
2. Kirby J delivered a minority judgement in Allesch v Maunz. The majority[21] observed, in relation to a comparable provision of the Family Law Act 1975 (Cth), that justice as between the parties must be considered when exercising the discretion to set aside:

The consideration which informs the power conferred by s 79A of the Act is that the court be satisfied that there was "a miscarriage of justice". And whether exercising inherent power or a power of the kind conferred by s 79A of the Act, a court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side. In this last regard, it should be noted that injustice will often be capable of remedy by the imposition of terms as to costs. However, where, as here, orders have been carried into effect, injustice may not be capable of remedy except on terms that those orders stand and that the matter be reopened only to a limited extent.

1. Having regard to the judgements of both the majority and Kirby J in Allesch v Maunz it seems apparent that the purpose of the discretion in paragraph 56(c)(i) is to prevent a 'miscarriage of justice'. Where the 'dual test' is met, the circumstances will usually justify the setting aside of an order. But these are not necessarily the only considerations relevant to the exercise of discretion in determining whether to set aside a decision.
2. In this regard, I agree with the observations of Member Daniel (now President Daniel) in Commissioner for Social Housing v Pesi [2012] ACAT 38 at [25], where she observed that:

It is important to note that the factors potentially relevant to the exercise of discretion under paragraph 56(c)(i) should not be considered as limited to the two factors identified by the parties in this matter. Paragraph 56(c)(i) provides a power that is available to the Tribunal across a multiplicity of jurisdictions, and factors such as the nature of the jurisdiction and decision; whether the requirements of natural justice have been met; the length of time which has passed; reliance upon the decision by the respondent and third parties; whether an order for costs could address the disadvantage suffered by the other party; and other matters may be relevant in appropriate cases.

1. These comments are consistent with the observation of the majority in Allesch v Maunz that prejudice to the other party must be considered, and with the approach taken in Courts to the setting aside of a default judgment[22] (noting that this was an ex parte decision and not a default judgement, the consequences of this distinction being considered further below).
2. In their written submissions, the respondents made some further submissions about legal error by CCL as being another reason for the exercise of the discretion. It is not clear whether this is advanced as a separate basis for a set aside, or as a element of the 'reasonable excuse' test, but I do not which it is ultimately matters.

**Did the respondents have a "reasonable explanation" for non attendance?

1. This is not a case where the respondents simply failed to attend a single hearing. The respondents failed to attend any hearings, failed to file any documents and failed to communicate with the tribunal. In considering whether the respondents had a 'reasonable explanation' for their non-attendance I have considered not only why they were absent from the final hearing, but also why they did not engage in the proceedings at all.

1. In her written submissions, the respondents' lawyer characterised the respondents' evidence as to their reason for non attendance as follows:

the evidence from the respondents indicated that although they knew legal proceedings were on foot, they did not feel equipped to access the Tribunal unrepresented.

1. I accept this submission as an accurate and reasonable summation of the evidence of both respondents. They did not deny receiving at least some of the documentation, they did not deny reading some of those documents, they agreed that they knew an application was on foot, and they knew termination was a possibility. They did not attend or otherwise respond to the claim because they felt unequipped to do so.
2. The question is whether this was a reasonable excuse for non-attendance. This involves a consideration of a number of factors.

The respondents' claim that they felt they were incapable of prosecuting their own defence

...based on their current life experiences it was both of their understanding that the correct thing to do in the circumstances was to obtain legal representation. Rightly or wrongly, it was the belief of the respondents that it would be futile to try to self-represent in Tribunal proceedings. Rightly or wrongly, it was the respondent's subjective belief that they were no capable of prosecuting their own defence.

1. The Commissioner's response to this was, in part, to argue that there is no right to legal representation before the Tribunal. I do not think that the respondents are arguing that there is such a right, but I have dealt with the argument below, in any case.
2. Rather, what I understood the respondents to be arguing was that they thought that their attendance would not make any difference (or, perhaps, would make things worse), and that this was, subjectively, a reasonable excuse for their non attendance. I accept that this may well have been what the respondents thought, but I do not accept that this is a reasonable excuse for non attendance. My reasons are three-fold.
3. First, I have given some weight to Ms Krutsky's (appreciably frank) evidence as to why she thought she could not represent herself. In answer to a question from Ms Gould she said:

MS GOULD: Okay. So did you think these were important documents?**---**Yes, I did. Obviously I did. I still do think they're important. I just knew that I didn't have any representation or anything. I didn't understand that I could just call the tribunal and say, "I can't make it" or I suppose I might have had a thought cross my mind to be worried that if I came in here with nobody and then still got kicked out then I'd just have to take it.

1. Later, Ms Krutsky made a further observation along the same lines:

... I understand that, you know, the tribunal would think or feel that we have wasted its time and we have wasted its resources and it's gone on without us. We should have been here. I accept that we should have been here but, yes, I don't know. I don't know what I would have said if I'd come here. I don't know whether I would have said the right things or like now, I get emotional and it's not the best way to, you know, to put a case forward.

MS GOULD: So you were putting all your eggs in the basket of having a lawyer; is that right?---Pretty much, yes.

1. I must, of course, be cautious about taking a few words, spoken under the traumatic conditions of giving evidence, and extrapolating from those words a strategic intention or motivation. However, it seems apparent from this evidence that Ms Krustsky knew that she was facing eviction proceedings, and was fearful that if she attended in response to those proceedings she may not be successful. Having thought about this, she made a deliberate decision that she would not attend without a lawyer.
2. I am not critical of Ms Krutsky for being fearful about representing herself, or being concerned about what she would say or do at the tribunal. She showed insight as to the risks that were confronting her. However, in making the decision not to attend, she left herself exposed to exactly the kind of thing that happened in this case - that is, an adverse decision made in her absence. That her decision not to attend was a mistake, and that the worse in fact did happen, does not mean that she has a reasonable explanation for not attending.

The respondents' explanation must be viewed in light of their previous court experience

1. I have taken into account the argument, advanced by the respondents, that having regard to their previous experiences with the legal system, in all of which they were represented, it was reasonable for them, on a subjective basis, to form the belief that they needed to be represented in order to appear in the tribunal.
2. Having regard to the evidence and reasons above, I do not accept that the respondents thought that they needed to be represented in order to attend - Ms Krutsky, at least, clearly knew she could attend in person. However, I do accept that the respondents thought they needed to be represented in order to put forward their best case. This is not an unreasonable conclusion.
3. However, it is not a reasonable excuse for non-attendance.
4. If anything, the respondents in fact stood in a better position to understand their rights and obligations than some other applicants. They had been through proceedings in the tribunal before; indeed, they had been through this exact process before. They must have had some knowledge of the process, what they needed to do, and the potential consequences of non-attendance. I do not consider previous experience with legal proceedings makes their excuse any more 'reasonable'.

The proceedings were complicated and the respondents confused

1. The respondents' solicitor submitted that, in considering whether their excuse was a 'reasonable' one, the Tribunal has to look to both the particular circumstances of the respondents, and their subjective understanding of the proceedings.
2. The respondents' written submissions set out a list of factors that are peculiar to the respondents. I have considered them all. Because of the personal nature of some matters, I do not need to set out the details here. I accept that the respondents' are vulnerable young people with complex histories, and that this could influence how they viewed documents from official sources, and especially from ACT Housing and the tribunal.
3. One of the key points raised by the respondents was that these proceedings involved a considerable number of documents, including multiple listing notices and many documents about subpoenas. A lot of information was sent to the respondents from ACT Housing and the tribunal, and I accept that they felt overwhelmed.
4. However, I cannot accept this amounts to a reasonable excuse for the respondents' complete non-engagement with the tribunal. The reality is, many parties to proceedings are likely confused or overwhelmed or frightened, and the majority of them attend the tribunal and participate in proceedings. The tribunal simply cannot function if parties are excused from attendance because they are confused by the processes or paperwork.
5. I also accept, on a more practical level, that when the respondents read the information, they were confused about which hearing dates were particularly important and which were about subpoenas. Again, however, this is not a reasonable excuse for not attending. The respondents received the directions made on 4 February 2016, which included the hearing dates and procedural steps, well before any other listing notices or other documents were sent to them. From this date, they were, or should have been, aware of the date of the final hearing.
6. Both respondents demonstrated excellent reading capacity during the hearing, and I have no doubt that they were able to read and understand the general thrust of the documents, even if some of the technicalities eluded them.
7. Additionally, both respondents had attended the tribunal before on a nearly identical application. I accept that they were previously represented, and that their failure to obtain legal representation this time may have added to their sense of frustration and confusion when confronted with a lot of documents. However, having regard to their previous experience before the Tribunal, it may just as readily be concluded that the volume of document should have, if anything, impressed upon them the seriousness with which the Commissioner was pursuing this matter, and the importance of participation.

1. I accept that the respondents did not ignore these proceedings. They acted with a reasonable degree of promptness to contact CCL and other legal service providers in an attempt to get representation. They were, at least initially, unsuccessful in obtaining representation, although CCL did provide some advice. CCL has conceded that administrative oversights on their part contributed to the respondents' failure to obtain legal representation before the substantive hearing.
2. An error or mistake by a party's representative may amount to a reasonable excuse for a party's failure to attend a hearing, but this will depend on the circumstances. Examples might include, for example, a failure by a properly instructed representative to file a claim on time or attend a hearing. This is not such a case. There is no evidence that CCL gave the respondents incorrect advice or that the respondents were relying upon CCL representatives to attend. CCL was not even representing the respondents until after the TPO had been made. Mr Hutchings, at least, appears to have been under the impression that CCL had denied them legal representation before the TPO was made.
3. Accordingly, I do not accept that representative error was a substantial reason for the respondents' failure to participate in these proceedings.

1. In contrast to many other administrative tribunals, the ACAT Act gives parties the right to be represented before the Tribunal.[23] Notwithstanding that right, parties are regularly unrepresented, especially in the civil and residential tenancies jurisdiction, and the processes of the tribunal (which are required to be simple, inexpensive and quick[24]) recognise that. Had the respondents made any enquires of the tribunal, they would have been so advised.
2. There is no legislation in the Territory, or at Commonwealth level, that grants a person a right to legal representation. There is some High Court authority to the effect that the denial or lack of representation to a person accused of a serious criminal offence may mean that an accused is unable to receive, or did not receive, a fair trial[25], but this principle does not to extend to civil cases.
3. The Human Rights Act 2004 (ACT) provides a right to a fair trial.[26] The proposition that this gives rise to a positive right to legal representation in all matters was rejected by Reshauge J in Commonwealth of Australia v Davies Samuel Pty Ltd[27], although his Honour did acknowledge that a right may arise where "...the absence of legal representation will effectively abrogate the Applicants' access to a court."[28]
4. The case relied upon by Justice Refshauge in making the exception was Golder v United Kingdom,[29] a case in which the European Court of Human Rights held that the denial of access to a solicitor for a serving prisoner who wished to commence civil proceedings against a guard was a denial of access to a court in breach of article 6 of the European Convention on Human Rights (ECHR) because the right of access to a court would, for him, have been valueless without access to legal advice.[30] Other cases based on the ECHR have confirmed that the key issue in the right to a fair trial is not necessarily the availability of legal aid, but the ability to effectively participate in proceedings - this can be met by the provision of legal aid, but also through increased accessibility through, for example, simplified procedures.[31]
5. Eviction proceedings may have serious consequences for the parties involved. However, in my view, no right to legal representation arises in this case because a lack of representation would not necessarily have compromised the respondents' capacity to receive a fair hearing. Relevant factors include that:
   • (a) the proceedings are conducted before a tribunal that is intended to be informal;
   • (b) the tribunal member hearing the application would be experienced in eviction processes and aware of the law;
   • (c) the respondents were not incarcerated or otherwise unable to physically attend the tribunal, seek advice, or defend themselves against the application; and
   • (d) the respondents were not completely ignorant of tribunal processes.
6. Significantly, this is not a matter that involves a single failure to attend, or a request for a stay or adjournment. It is a matter in which the respondents have failed to participate in the proceedings at all. By contrast, for example, the case Davies Samuel involved a request for an adjournment so as to enable a party to obtain legal advice. Had the respondents attended the Tribunal on one of the earlier occasions, and requested such an adjournment, the adjournment may have been granted. They chose instead not to attend at all. In short, a lack of legal representation may be a reason to adjourn a hearing, but it is not an excuse for failing to attend the hearing, or for failing to participate in the proceedings at all.
7. No doubt, the respondents were distressed and frustrated that they could not get representation (whether from CCL or elsewhere), but their situation is not unusual. Free or low cost legal advice and representation is, unfortunately, extremely limited. Tribunal processes and procedures are designed to facilitate access by unrepresented parties. The tribunal cannot function if a failure to obtain legal representation is an excuse for non-attendance, and accordingly I cannot accept a failure to obtain legal representation as a reasonable excuse.

The respondents were unaware that they could contact the tribunal

1. The respondents both said that they had not contacted the Tribunal at any stage during the proceeding because they did not know that they could.
2. As set out above, all correspondence from the tribunal included the registry's phone number, and several items of correspondence made it clear that any party who had questions about a document could telephone the tribunal. The respondents had been to the tribunal before, and knew where the registry was. I do not accept that the respondents were unaware that they could telephone the tribunal or attend the registry in person. In any case, even if they were so unaware, I do not consider that ignorance to be reasonable. Minimal investigations would have shown that they could contact the Tribunal, in person or by telephone, to receive basic procedural information or guidance.

Would the respondents' attendance have made a difference?

1. The respondents' solicitor made a number of submissions about the defences that may have been raised had the respondents been in attendance. The legal arguments included the possibility of raising arguments under the Human Rights Act 2004 (ACT), the application of section 57 of the RT Act (which deals with retaliatory applications), and the admissibility of some of the evidence. Ms Gould also submitted that some of the evidence of some of the witnesses would have been challenged.
2. The requirement that the respondents have an arguable case does not require that I need to be satisfied that any of these grounds are actually made out - an interim application is not a full hearing on the merits. I need only be satisfied that the grounds are at least arguable. I am satisfied that this test is met. The applicant did not seriously contest this point.
3. Accordingly, I am satisfied that the respondents had an arguable case and that their attendance may have made a difference.

1. Much of the respondents' evidence went to their extraordinarily complex and difficult personal circumstances, and the genuine threat of homelessness that confronts them as a consequence of these proceedings. Consistent with the test of whether there has been a 'miscarriage of justice' set out by the majority in Allesch v Maunz, I consider it open to the tribunal to give weight to these factors. They are relevant both to whether the respondents have a reasonable excuse for non-attendance, and to whether the discretion can be exercised under section 56 of the ACAT Act at all.
2. For the most part, my consideration of these factors is set out above. I have also considered whether the respondents' personal circumstances, alone, may be a reason to set aside the decision.
3. My view, having regard to all the factors, is that they do not justify setting aside of decision. The respondents' personal circumstances, although complex and difficult, are not significantly different to many others who are required to attend the tribunal. This is not a case where, for example, there is medical evidence of a condition that would compromise the ability of both the respondents' to participate. This is not a matter where the respondents were incapable of understanding the proceedings. This is not a matter that involves a single inadvertent act, such as a failure to attend a hearing, or to file a response. The evidence shows that the respondents made a choice not to attend the tribunal, or to participate in the proceedings, over many months. The tribunal cannot operate effectively if making a poor choice to not attend or participate can lead to a decision being set aside.
4. Secondly, I have considered the broader interests of administration of justice. The applicant relied upon the evidence of numerous witnesses, all of whom were required to attend the tribunal for the final hearing. If the tribunal is to maintain public confidence, some weight must be given to the importance of finality in concluding legal proceedings. To set aside a decision, and start again, because the respondents have failed to participate undermines the tribunal's credibility more broadly.
5. Finally, I have given consideration to the other option that is available to the respondents, namely an appeal.
6. The decision of President Daniel was an ex parte decision (ie. a decision made in the absence of a party). It was not a default judgement. This means that the respondents may be entitled to appeal the decision.
7. A default judgement is available in civil matters were there is no response by the respondent in proceedings. In many cases, the task of entering a default judgment is effectively administrative. The respondent is provided with a certain period of time, following which, if they do not submit a response, default judgement is entered by the registry. There is no hearing on the facts and there is usually no 'decision' that can be appealed, as the tribunal has not 'heard the application' as required by section 79 of the ACAT Act.[32] Instead, there is a process for restoring these proceedings to the list set out in the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No.2) (Rule 45).
8. An ex parte hearing is a hearing of the matter by a tribunal member in the absence of a party.[33] Where it is the respondent who does not attend, the Tribunal will usually hear evidence and the submissions of the applicant and form a view as to whether the application is made out on the facts[34]. That is precisely what President Daniel did in this case; she put the applicant's representatives to proof, heard submissions, and delivered oral reasons.
9. In contrast to a default judgement, an ex parte decision may be appealed pursuant to section 79 of the ACAT Act. In most cases, section 82 of the ACAT Act permits an Appeal Tribunal to deal with the appeal as a hearing de novo (subsection 82(a)) or as a rehearing (subsection 82(b)).[35]
10. The fact that this is an ex parte decision, not a default judgement, is, in my view, a significant consideration, and one that I can properly consider, having regard to the 'factors' approach in Pesi.

1. Having regard to all the above considerations, I determined that the decision the Tribunal of 25 May 2016 to make a TPO should not be set aside. Accordingly, the interim application is dismissed.
2. I also determined to stay the termination and possession order of 27 May 2016 until 5pm 3 May 2016 so as to give the respondents' time to consider what other options may be open to them.

[1] Transcript of proceedings 2 June 2016, page 33, line 25

[2] Transcript of proceedings 2 June 2016 page 49, lines 1-3

[3] Transcript of proceedings 2 June 2016 page 29, lines 11-12

[4] Transcript of proceedings 2 June 2016, page 29, lines 1-5

[5] Transcript of proceedings 2 June 2016, page 28, lines 33-37

[6] Respondent's submissions dated 3 June 2016

[7] Transcript of proceedings 2 June 2016, page 32 at line 33 to page 33 at line 4

[8] Transcript of proceedings 2 June 2016, page 33 at lines 4-6

[9] Transcript of proceedings 2 June 2016, page 43 at lines 10-20

[10] Transcript of proceedings 2 June 2016, page 33 at line 44

[11] Transcript of proceedings 2 June 2016, page 42 line 44 to page 43 line 1.

[12] Transcript of proceedings 2 June 2016, page 27, lines 23-25; page 34, lines 5-6; page 43, line 12

[13] Transcript of proceedings 2 June 2016, page 34, lines 42-44.

[14] Transcript of proceedings 2 June 2016, page 35, lines 1-20

[15] Transcript of proceedings 2 June 2016, page 35, lines 33-34

[16] Transcript of proceedings 2 June 2016 page 42, lines 34-35

[17] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25]

[21] At [28] per Gaudron, McHugh, Gummow and Hayne JJ

[22] See: Davies v Pagett [1986] FCA 186; (1986) 10 FCR 226; Ezekiel-Hart v Law Society [2012] ACTSC 103 at [29]

[25] Dietrich v the Queen (1992) 177 CLR 202

[26] Section 21 of the Human Rights Act 2004

[29] (1975) 1 EHRR 524 at [28]-[36]

[30] European Convention on Human Rights (ECHR)

[31] See: The Right to a Fair Hearing and Access to Justice: Australia's Obligations; submission to the Senate Legal and Constitutional Affairs Committee inquiry into Australia's Judicial System, the Role of Judges and Access to Justice (6 March 2009) at [36] to [49]

[32] Kang v R&D Regional Constructions Pty Ltd (2013) ACAT 24; Day And Munday Trading As Gone Postal & Proactive Airconditioning Pty Ltd [2013] ACAT 40 at [18-19]

[34] See discussion in Elringtons Pty Ltd v Dee (Civil Dispute) [2016] ACAT 87 at [14] to [25].

[35] See: Legal Practitioner v The Council of the Law Society of the ACT [2011] ACTSC 207 per Refshauge J; cited in B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219 at [11] per Burns J