(a) a copy of any fresh evidence admissible in accordance with Order 3 of these orders that she wishes to rely on at the appeal; and

(b) a document setting out the errors of fact, errors of law, or discretionary errors that the appellant says infected the decision.

The Tribunal notes: if the appellant does not comply with these orders, the appeal may be dismissed pursuant to section 74(1) of the ACAT Act for failure to comply with an order of the tribunal.

1. The respondent is to file and serve any response to the material filed in compliance with order 4 by 3 September 2021.
2. The respondent's interim application seeking dismissal of the matter pursuant to section 32 of the ACAT Act and the substantive appeal are listed for hearing at 10am on 29 September 2021.
3. Any further requests for adjournments by the appellant on medical grounds must be accompanied by a medical certificate or report stating the nature of the appellant's illness and the effect that it has on her preparation for hearing. Any request for an adjournment on any other ground must be accompanied by other evidence.

1. This is an appeal against a decision of the tribunal in matter DT 30 of 2020 Hamers v South Canberra Holdings Pty Ltd (first instance decision) dismissing the appellants claim of discrimination under the Discrimination Act 1991. The preliminary question before the Tribunal is what form the appeal should take. The appellant seeks a new hearing (a hearing de novo), with fresh evidence on several points. The respondent wants the Appeal Tribunal to conduct a rehearing, or review, of the conclusions of the original tribunal. The appeal considers the effect of COVID-19 on the procedures of the tribunal.

1. The principles to be applied when determining which form of appeal is appropriate were considered by Presidential Member Daniel in Mansour v Dangar[1] as follows:
   1. Section 82 of the ACAT Act provides that the appeal tribunal may either deal with the appeal as a new application (a hearing de novo/new hearing) or as a rehearing (review).[2] In deciding the correct approach to take, the appeal tribunal is required by the ACAT Act to adopt a procedure which is as simple, quick, inexpensive and informal as is consistent with achieving justice, and the requirements of procedural fairness.[3] Other than containing these overarching requirements, the legislation does not dictate how the choice between a new hearing or a rehearing is to be made. It is nonetheless an important procedural distinction, which may have substantive consequences.
   2. For a new hearing, established principles dictate that the hearing starts afresh. Evidence may be given again, and additional evidence may be given. The appeal tribunal's view on any question of fact or law is determinative of the issue. Any discretion to be exercised by the original tribunal is exercised anew by the appeal tribunal.[4]
   3. By contrast, for a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal's findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal's primary findings of fact, but may be less constrained in relation to drawing inferences of fact.[5] The appeal tribunal should not interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion.[6]
   4. ...Applications for appeal raising only questions of law or confined questions of fact are most expeditiously dealt with as a rehearing, occasionally with further evidence admitted in relation to areas of factual dispute. By contrast, where there appears to have been a real failure of process at the original hearing, such as a failure to hear both parties, the appeal might be heard as a new application. In such circumstances, this approach is often the simplest, quickest and most inexpensive way to achieve a fair and just outcome. [original footnotes retained]
2. In summary, the usual approach of the Appeal Tribunal is to conduct a rehearing or review on the evidence before the original tribunal, plus with fresh evidence that may be, exceptionally, admitted. However, where there has been a failure of process during the first hearing, for whatever reason, a new hearing may be the most appropriate means to address that.

1. The appellant argues that the Tribunal should rehear the matter for four reasons:

(a) There were errors of fact made that can only be rectified by the admission of the documentary evidence from the Australian Federal Police (AFP) and telephone records from the respondent - hence the application to admit new evidence.

(b) Witness statements were admitted into evidence after the conclusion of the original hearing, and in circumstances where the appellant was not able to respond to them, amounting to a breach of natural justice that can only be remedied by a new hearing.

(c) The hearing was in breach of natural justice because it was conducted in circumstances where the appellant was at a disadvantage due to her disabilities and this cannot be remedied without a rehearing.

(d) The Senior Member fell into error by considering the appellant's 'demeanour' when considering the credibility of her evidence, particularly as her demeanour is affected by her disability.

1. I consider each of these grounds in turn below.

1. The background to this matter may be briefly be summarised follows.
2. The respondent operates a caravan park in the Australian Capital Territory. The appellant sought accommodation on the site and that request was denied (denial decision). The appellant says that the denial amounted to direct discrimination, citing several protected attributes, including disability and parental status, as the basis for the denial decision. The respondent says it refused the appellant accommodation because she provided an incomplete application, failed to provide proof of income, and left a previous occupancy with a debt (an allegation that turned out to be wrong).
3. The appellant's case was that various statements made to the appellant by the respondent's staff during this period, coupled with the actions taken by those staff, establish that the respondent treated her unfavourably because of her protected attributes.
4. The events that constitute the alleged acts of discrimination are alleged to have occurred during conversations in October 2019, when the appellant says she first made an application to stay at the park, and then between 29 November 2019, when the appellant says she made a second application to stay at the park, and 1 December 2019, when she was advised by employee of the park that her application had been unsuccessful. The respondent's witnesses denied saying the things as alleged. The documentary evidence supported those conversations having taken place, but not the content. As such, it was one person's word against another's.
5. The application was ultimately dismissed because the original tribunal found that Ms Hamers could not, "due to discrepancies in the evidence",[7] establish, on the balance of probabilities,[8] that she was treated unfavourably because of a protected attribute. In reaching this conclusion, the original tribunal took into account the 'inherent believability' of the various witness accounts. The original tribunal also found that "[e]ven if the respondent did treat her unfavourably, it was not because she had one of the protected attributes."[9]

1. It is important to emphasise that the purpose of this decision is not to decide the merits of the appellant's grounds of appeal, but rather to consider whether the issues she has raised justify a hearing de novo.

First Ground: There were errors of fact made that only be rectified by the admission of the documentary evidence from the AFP and telephone records from the respondent

1. Rule 91(c) of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (the Rules) provides that the Appeal Tribunal "may receive further evidence about questions of fact, either orally or in a hearing, by written statement or in another way". Although the Rules do not prescribe how this power is to be exercised, the appeal tribunal's approach is to apply the principles established for similar statutory powers in other jurisdictions, as per, for example, the decision of Presidential Member Daniel in Amer v Eriksson [2019] ACAT 108 (Amer):
   1. The overarching principle to be applied when considering whether to allow new evidence on appeal is the interests of justice. The power "exists to serve the demands of justice" and is a "remedial" power.
   2. It is not usually in the interests of justice to allow new evidence on appeal. To do so would be inconsistent with the appellate nature of the proceedings, and the public interest of finality in litigation. However, in a particular case it may be in the interests of justice to admit new evidence on appeal if there is an acceptable reason for the evidence not being brought at the original hearing and the new evidence would, or was likely to, have produced a different result.
2. The evidence that the appellant seeks to admit is, as I understand it, phone records and other documentary records that confirm that officers of the AFP attended a dispute at the respondent's premises and that they overheard, and reacted to, a conversation with the appellant while there.
3. In an email to the ACT Human Rights Commission on 17 January 2020, the appellant alleged that a representative of the respondent, Ms Hutcheson, stated in a conversation with her that she was not going to allow the appellant to stay because her son and his partner "did not want me there." The email continued:

[Ms Hutcheson] said this in front of two AFP officers who were there for another matter. They heard what she said and seemed taken aback by her comment.

1. In her oral evidence at the hearing, the appellant also alleged that in the same conversation, Ms Hutcheson called her "an overbearing parent". The AFP was there, the appellant said, due to the conduct of another resident, including hitting another person with a car:

Ms Hutchison called me an overbearing parent and said that she would have to ask my son if I could stay there, my son and his partner if I could stay there. The police actually heard that and they did look with, like - they heard - you could see that they were, like, 'Okay, what's going on here?'.[10]

1. The respondent denies that the conversation occurred as alleged, and also denies that the police were there on the day in question. The respondent's witnesses deny that the AFP were there investigating the ramming of cars, or at all, that day.
2. The original tribunal was not satisfied that Ms Hamers had met the onus of proof in relation to this allegation. She did not obtain evidence from the AFP, nor did she call any witnesses to support her allegation. She now seeks an opportunity to do so. She believes the documents will confirm that the police were in attendance as she alleges.
3. Applying Amer, there are two issues for the Appeal Tribunal:

(a) was there is an acceptable reason for this fresh evidence not being brought to the original hearing; and

(b) would the evidence have produced a different result.

1. In considering the first element, the question is whether the new evidence could have been procured with reasonable diligence for the original tribunal. If the new evidence could have been available at the original hearing, the Appeal Tribunal must consider whether there was an acceptable reason why it was not relied upon at that time.
2. The appellant's explanation for her failure to obtain this evidence is that she was unaware she could obtain the police incident reports. While I accept this is true, I do not accept that she could not have discovered this through reasonable diligence. This weighs against allowing the new evidence to be admitted.
3. In terms of the probative value of this new evidence, it may have some relevance to the allegation of discrimination based on parental status, and more speculatively may go to credibility. This is a consideration in favour of allowing the application.
4. I am wary of allowing this new evidence in, particularly at this stage of the proceedings, particularly given the relative ease with which it could have been obtained for the first instance hearing. Appeals should not become an opportunity to 'have another go' or fix obvious mistakes at first instance, and on balance this appears to fall into that category.
5. If this matter were not being reopened for other reasons, I would refuse this application. However, for reasons set out below, and in light of limited other fresh evidence I have decided to admit the additional material from the appellant, I will allow a brief period in which to file this additional fresh evidence.

Second Ground: Witness statements were admitted into evidence after the conclusion of the hearing, and in circumstances where the appellant was not able to respond to them, amounting to a breach of natural justice that can only be remedied by a new hearing

1. As is often the case with self-represented parties, the scope of the original complaint was not well defined and it shifted somewhat through the course of the proceedings. During the course of this matter, some issues were raised that had been referred to the HRC but had not been outlined in the initial documentation filed in the tribunal.
2. Accordingly, at the conclusion of the hearing, the original tribunal made a series of directions allowing the submission of further evidence by both parties. This included permitting the respondent to file further witness evidence about:

(a) whether or not a particular employee worked at the respondent's premises on Sundays;

(b) evidence about what occurred at the respondent's premises that was provided by the appellant to the Human Rights Commissioner in the complaint; and

1. It is apparent from the transcript that the purpose of this evidence was to tie off a loose end arising from the evidence given orally at hearing, and to avoid the need for the parties to come back for a further oral hearing.
2. The respondent complied with the directions, filing documents that confirmed that Ms Burton had worked on one Sunday, and witness statements from two employees, Mr Steven Shortt and Ms Olivia Flanagan, setting out their recollection of events on 26 November 2019 and 29 November 2019. The respondent also filed further submissions. Arguably the covering submission filed by the respondent makes additional factual assertions, particularly in relation to the state of the appellant's accounts.
3. I am not satisfied that the additional material raises any substantive issue of procedural fairness, as the evidence was given during the hearing and the appellant was given an opportunity to address relevant matters in the statement during the course of the hearing. Nonetheless, and given the matter will be listed for hearing of the appeal in any case, I will permit the appellant to file limited evidence that directly addresses any factual allegations in those statements and submissions. Additionally, as set out above, I will also grant leave to file any documents relating to the attendance by the AFP on 29 November 2019. If the respondent wishes to respond to this evidence, it may do so. This addresses any perception issues that may arise. No other fresh evidence will be admitted.

Third Ground: The hearing was in breach of natural justice because it was conducted in circumstances where the appellant was at a disadvantage due to her disabilities

1. The appellant contends that her personal circumstances, coupled with the COVID-19 declaration, meant that she was compromised in her ability to prosecute these proceedings and was denied natural justice. She says she sought adjournments, but these were denied, despite there being "no urgency"[11] to the matter and that she should have been granted an adjournment and further time to prepare.
2. Central to the appellant's argument is that the tribunal adjourned other matters listed before it due to COVID-19. This is partially correct. In March 2020, the tribunal did adjourn the initial listing of some non-urgent matters, primarily in its civil jurisdiction. The civil jurisdiction is a high-volume jurisdiction, and limited 'on site' staffing arrangements necessitated by social distancing compromised the tribunal's capacity to process and list those matters. Matters in the review and regulation jurisdiction, which includes matters brought under the Discrimination Act 1991, were not subject to the same limitations, and were not adjourned unless they were unsuitable for telephone hearing.
3. In any case, this matter was received on referral from the Human Rights Commission on 2 July 2020 and was only first listed for a directions hearing later that month on 20 July 2020. By that stage, the tribunal had procedures in place to manage matters using telephone and virtual hearings.
4. The Tribunal was aware that legal advice and evidence gathering could be compromised by COVID-19. This matter was given a lengthy preparation period, with the matter set down for hearing on 2 November 2020. The additional time should have been sufficient to overcome any disadvantage caused by COVID-19. Nonetheless, several additional extensions were granted.
5. On 10 August 2020 the appellant wrote to the tribunal seeking an extension of time so that she could obtain legal representation. She referred to 'overwhelming' personal challenges, but provided no evidence of what these were. The respondent opposed amending the timeframe.
6. The matter was listed for directions on 21 August 2020. Shortly prior to that occasion, a lawyer from Legal Aid ACT filed a notice of representation indicating he was acting for Ms Hamers. At the directions hearing she was granted an adjournment of time to prepare her documents. She subsequently advised the tribunal Legal Aid was only assisting her prepare a response, and later that they were no longer assisting her at all.
7. By way of a further email to the tribunal on 2 October 2020 the appellant sought a further adjournment. She was advised to file an application for interim or other orders seeking amendments to the directions, but did not do so. The matter was listed for a directions hearing on 9 October 2020, and on that occasion it was referred to a preliminary conference on 23 October 2020. At the preliminary conference further directions were made, and another extension was granted, this time allowing the appellant to file evidence and submissions by 13 November 2020, with the hearing date again pushed back to a later date.
8. The appellant sought another extension from the tribunal on 13 November 2020. As the request was made by email rather than by an application for interim or other orders it was decided administratively and was refused. She filed material later that day.
9. The matter was listed for hearing on 26 November 2020. The hearing proceeded, and the original tribunal reserved its decision, after making, as noted above, directions for the filing of specified additional evidence and submissions by both parties. Both parties complied with these directions and the matter was reserved for decision.
10. The appellant did not request an adjournment at the hearing on 26 November 2020, and therefore it was not a matter that the original tribunal considered. No error arose at that hearing.
11. In terms of whether an adjournment should have been granted anyway, whether administratively or otherwise, I note the cautionary words of the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University:

[T]here is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.[12]

Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.[13]

1. Having regard to the full chronology above, and the principles, I am satisfied that the appellant was provided with an extended period of time to find legal assistance and to comply with the directions of the tribunal and file her material.
2. The tribunal is required to be as "quick...as is consistent with achieving justice".[14] Parties must have an appropriate opportunity to plead and argue their case, but there is no requirement for the tribunal to constantly extend deadlines, particularly in the absence of an application, let alone supporting evidence.
3. Accordingly, I am satisfied that no error was made in the administrative management of this application. The appellant was advised to lodge an interim application seeking an adjournment, and she did not do it. Nonetheless, a short adjournment was granted at the preliminary conference on 23 October 2020. The administrative refusal of a further adjournment, requested on 13 November 2020 by way of email and unsupported by evidence, was appropriate.
4. Being satisfied that it was not an error to decline to adjourn the matter generally, the issue before the Tribunal turns to whether these circumstances in some way lead to the conclusion that the hearing amounted to a denial of natural justice that is of such magnitude that a de novo hearing is required to address that injustice.
5. It may be that a decision that was reasonable at the time may be capable of giving rise to an injustice when viewed with the benefit of hindsight. This was recognised, albeit in the context of an adjournment application in a hearing, in Squire v Rogers,[15] in which his Honour Deane J observed that:

The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances: (Conroy v Conroy [1917] NSWStRp 44; [1917] 17 SR (NSW) 680, at p 682) ... A court of appeal will not, as a general rule, interfere with the decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to ... the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion.[16]

1. Consequently, if I was satisfied that a serious injustice had in fact resulted from the exercise of discretion to refuse to adjourn the matter, it may be open to the Tribunal to agree to a rehearing to address that error. Still, it would be a matter for the appellant to demonstrate an actual injustice.
2. The appellant has largely unspecified disabilities. Although I am unclear precisely what they are, she is in receipt of DSP and has a NDIS package. I accept that they have an impact on her daily life. The difficulty is that I have no basis upon which I can assess their impact on her ability to conduct these proceedings. In the absence of expert evidence, all I have to work with is the appellant's own representations, my observation of her presentation at the hearing, and my reading the transcript of the first instance hearing. The appellant impressed me as an articulate and capable advocate of her own interests, with a good understanding of her claim. I would certainly have no basis to conclude that she is not fit to present her own case or that requiring that she do so breached natural justice.
3. In terms of whether the proceedings should have continued in the absence of the appellant being legally represented, while a person is entitled to be represented by a lawyer in the tribunal, there is no requirement that they so be. Access to free or affordable legal advice is a policy issue for government. One way in which the legislature has attempted to provide access to justice is the establishment of tribunals, such as the present one, with simple procedures that encourage litigants to represent themselves. The majority of applicants in discrimination matters are self-represented. There is no basis to conclude that the hearing miscarried because the appellant could not obtain representation or legal assistance in the time available.
4. There is, in any case, no basis upon which I could conclude that listing the matter for a new hearing could alter the situation, as the appellant has yet to demonstrate she is likely to gain access to legal assistance.
5. In terms of whether COVID-19 restrictions more generally may be a reason to grant a rehearing, I again note that the appellant's conduct of the appeal hearing suggests that she was capable of competently using and expressing her position through a virtual hearing. The broader circumstances, including the limitations on access to some services, are certainly an inconvenience, but such were the times. These realities of the situation were also acknowledged by Perram J of the Federal Court of Australia in Capic & Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486, particularly, paragraphs 23-25 where his Honour observed:

If I could be sure that the crisis would have passed by October I would not hesitate to adjourn all the trials in my docket... [a view with which I concur] such that...Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode of a trial on a party against its will ... these are not ordinary circumstances.

1. I am satisfied that the circumstances under which the case ran, while not perfect due to COVID-19, were not so problematic as to give rise to any substantial denial of natural justice, let alone warrant a de novo hearing.

Ground Four: The Senior Member fell into error by considering the appellant's 'demeanour' when considering the credibility of her evidence, particularly as her demeanour is affected by his disability

1. The appellant argues that the original tribunal took account of her 'demeanour' in assessing her credibility. This, she submitted, was in error, and a denial of natural justice, particularly as her demeanour was affected by her disability.
2. I am not convinced this argument is correct. The original member noted the difficulties with considering demeanour. What the original tribunal did rely on was the 'credulity' of the appellant's evidence. The original tribunal started with consideration of the "inherent believability of both parties' stories".[17] The tribunal observed that the appellant was a "forthright witness", but said that her evidence had "a degree of incredulity"[18] about it. That incredulity led the original tribunal to prefer the evidence of the respondents' witnesses to that of the appellant. This is a matter not of 'demeanour', but of credibility assessed by reference to the surrounding circumstances, including the cumulative weight of the evidence.
3. Key to the original tribunal's findings was the lack of corroborating evidence: no attempt was made by the appellant to obtain documents to prove the police were there on the relevant day, nor did she call any witness statement to support her account of the conversation. Some of the evidence seemed designed to discredit other witnesses rather than address the issues.
4. To the extent that the Senior Member may have erred in her findings as to credit, these errors can be adequately identified by reference to the transcript, and potentially by the admission of additional evidence as outlined above. It does not warrant a rehearing.

1. The application for a 'new' or de novo hearing is dismissed.
2. The appeal is listed for hearing on 29 September 2021 and will proceed by way of a 'review' of the evidence before the original tribunal and new evidence admissible pursuant to these orders.
3. The appellant is granted leave to file the following additional material (the 'fresh evidence'):

(a) AFP records of attendance and other records of the events of 29 November 2019;

(b) a witness statement of any witness to the events of 29 November 2019; and

(c) a witness statement of any witness in reply the events in the statements of Ms Flanagan on 11 December 2020 and Mr Shortt.

(a) a copy of any fresh evidence admissible in accordance with Order 3 of these orders that she wishes to rely on at the appeal; and

(b) a document setting out the errors of fact, errors of law, or discretionary errors that the appellant says infected the decision.

The Tribunal notes: if the appellant does not comply with these orders, the appeal may be dismissed pursuant to section 74(1) of the ACAT Act for failure to comply with an order of the tribunal.

1. The respondent is to file and serve any response to the material filed in compliance with order 4 by 3 September 2021.
2. The respondent's interim application seeking dismissal of the matter pursuant to section 32 of the ACAT Act and the substantive appeal are listed for hearing at 10am on 29 September 2021.
3. Any further requests for adjournments by the appellant on medical grounds must be accompanied by a medical certificate or report stating the nature of the appellant's illness and the effect that it has on her preparation for hearing. Any request for an adjournment on any other ground must be accompanied by other evidence.

[1] [2017] ACAT 49

[2] The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207 at [14]; B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and The Owners - Units Plan 3324 [2013] ACTSC 219 at [11], [12]

[4] Theodorelos v Nexus Projects Pty Limited [2009] ACTSC 149 (Theodorelos) at [78]

[5] For example where the factual finding is clearly affected by error, or where there is no issue or credit or reliability of witnesses: Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192; Edwards v Noble (1971) 125 CLR 296; Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531.

[6] Theodorelos at [78]; House v R (1936) 55 CLR 499

[7] Transcript of first instance decision 23 February 2021, page 3, line 21

[8] See WSOL & John James Memorial Hospital [2011] ACAT 81 at [33]

[9] Transcript of proceedings 26 November 2020, page 3

[10] Transcript of proceedings 26 November 2020, page 23, lines 23-26

[11] Transcript of proceedings 8 June 2021, page 10, lines 15-20

[12] [2009] HCA 27 at [5]

[13] [2009] HCA 27 at [30]

[14] ACT Civil and Administrative Tribunal Act 2008 section 7(a)(i)

[15] [1979] FCA 48

[16] Squire v Rogers [1979] FCA 48 at [113]- [114]

[17] Transcript of proceedings 23 February 2021, page 9, line 26

[18] Transcript of proceedings 23 February 2021, page 9, line 27