Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 48, 79, 82,

Federal Court of Australia Act 1976 (Cth), s 27

Family Law Act 1975 (Cth), s 93A

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rule 2020 rr 38, 91, 94

Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

AulichCivil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26

CDJ v VAJ (No 1) [1998] HCA 67

Commissioner for Social Housing v Williams [2017] ACAT 53

Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56

Fox v Percy [2003] HCA 22

Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275

Legal Practitioner v Council of Law Society (ACT) [2011] ACTSC 207; (2011) 257 FLR 118

1. The application by Ralph Hurst-Meyers for the grant of leave to provide further evidence about questions of fact on appeal is dismissed.

2. The application by Aulich Civil Law Pty Ltd ACN 155 746 777 for the grant of leave to cross-appeal out of time is dismissed.

1. The present proceedings involve formal responses by Aulich Civil Law Pty Ltd ACN 155 746 777 (Aulich Law or the firm), a firm of solicitors, and Ralph Hurst-Meyers, a former client of the firm, to a decision of the ACT Civil and Administrative Tribunal (the Original Tribunal) that:

(a) Mr Hurst-Meyers pay the sum of $24,258.32 to Aulich Law;

(b) Mr Hurst-Meyers' counterclaim is dismissed; and

(c) Aulich Law's application for an order for costs is dismissed.

2. Those orders were made in response to two claims. The first was made by Aulich Law for unpaid fees for legal services that it provided to Mr Hurst-Meyers in relation to his proceeding in the ACT Supreme Court. The second was a counterclaim by Mr Hurst-Meyers for the repayment of the amount he paid Aulich Law for professional fees and disbursements, on the grounds that Aulich Law gave him negligent advice in relation to the conduct of the Supreme Court proceeding and his prospects of success in that proceeding.

(a) Mr Hurst-Meyers appealed against the decision of the Original Tribunal and has applied to adduce additional evidence at the hearing of his appeal by the Appeal Tribunal; and

(b) Aulich Law lodged an application for appeal against the dismissal by the Original Tribunal of its application for an order for costs and, because its application for appeal was lodged outside the 28 day appeal period, it is seeking leave to appeal out of time.

4. Accordingly, the issues in the present proceedings are whether:

(a) Mr Hurst-Meyers should be granted leave to adduce some or all of the additional evidence referred to in his submissions to this Tribunal; and

(b) Aulich Law should be granted leave to appeal out of time.

5. In a written statement lodged with the Tribunal on 29 June 2020, upon which he expanded orally at the hearing on 6 July 2020, Mr Hurst-Meyers identified the following evidence that he seeks to adduce at the hearing of his appeal:

(a) audio evidence of the ACT Supreme Court hearing in Hurst-Meyers v Public Trustee and Guardian for the ACT [2018] ACTSC 61, and all evidence folders in relation to those proceedings;

(b) an affidavit from Ben Aulich, a partner at Aulich Law, accounting for all conversations he had with Douglas Dawson, a solicitor who previously worked with Aulich Law and acted for Mr Hurst-Meyers in relation to the Supreme Court proceeding;

(c) oral evidence from Monica McGrath, the Office Manager of Aulich Law, in relation to the firm's practice of limiting charges if instructed to do so by clients and evidence in relation to the capping of fees billed by Aulich Law in relation to Mr Hurst-Meyers' Supreme Court proceedings;

(d) oral evidence from Douglas Dawson in relation to a fees cap set by Mr Hurst-Meyers for his Supreme Court proceedings; and

(e) oral evidence from Liza Hurst-Meyers, Mr Hurst-Meyers' former wife, about why she and Mr Hurst-Meyers had set a budget for the matter and how they had conveyed the fee instructions to Aulich Law.

6. Section 82 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides:

_An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal - _

(a) as a new application; or

(b) as a review of all or part of the original decision on the application by the tribunal.

7. Among the Directions made by Presidential Member Daniel on 15 June 2020 was Direction 7 which stated, in part, "The appeal hearing will proceed as a review of the original decision unless the Appeal Tribunal orders otherwise."

8. Rule 91(c) of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (ACAT Rules) sets out the general powers of an appeals tribunal for an appeal within the Tribunal. Among other things, an Appeal Tribunal:

(c) may, if leave is granted, receive further evidence about questions of fact, either orally or in a hearing, by written statement or in another way.

9. The Directions made by Presidential Member Daniel on 15 June 2020 included directions to each party to give the other party and the Tribunal written submissions in relation to an application by Mr Hurst-Meyers for fresh or further evidence, and that the application for fresh or further evidence was listed for hearing on 6 July 2020.

10. Having set out what section 82 and Rule 91(c) provide, it is appropriate to express colloquially what they do not provide. Dealing with an appeal as a review of an original decision under section 82 is not simply an opportunity for an unsuccessful party to have a "second bite of the cherry." In order to succeed, an appellant must be able to satisfy the Appeal Tribunal that the Original Tribunal made an error (or errors) of fact or law. Similarly, the Rules provide that leave has to be granted before further evidence is received about questions of fact shows that Rule 91(c) does not give an unsuccessful party free reign to "plug the gaps" in their case that were exposed by the reasons for decision of an Original Tribunal.

11. Although the ACAT Act and the ACAT Rules do not prescribe how an Appeal Tribunal decides whether to grant leave to receive further evidence about questions of fact on appeal, there is a substantial body of case law to guide the Appeal Tribunal when exercising its discretionary power.

12. In Fox v Percy,[1] the High Court observed that appeal is not a common law procedure but a creature of statute. Three of the Justices referred to a previous judgment of the High Court which distinguished between:

(a) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court;

(b) an appeal by rehearing on the evidence before the trial court;

(c) an appeal by way of a rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and

(d) an appeal by way of a rehearing de novo.[2]

13. As their Honours also observed, there are different meanings to be attached to the word 'rehearing' and there is a distinction between an appeal by way of rehearing and a hearing de novo.[3] Which meaning is borne by the term 'appeal' is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case.[4]

14. Those statements were made in the context of judicial hearings and appeals under particular statutes. The ACAT Act does not use the word 'rehearing' but 'review'. An appeal dealt with as a 'review' can be contrasted with an appeal dealt with as 'a new application' which, to use the language of the High Court, could be described as a hearing de novo. The present appeal is not being dealt with as 'a new application'.

15. The meanings of the word 'review' as set out in the Macquarie Dictionary include "a viewing again; a second or repeated view of something" and, more specifically "a judicial re-examination, as by a higher court, of the decision or proceedings in a case" and "Law to re-examine judicially".[5]

16. The issue whether dealing with an appeal as a 'review' is, in essence, to conduct a rehearing was considered by the ACT Supreme Court in Legal Practitioner v Council of Law Society (ACT).[6] Justice Refshauge stated:

13. The drafters have, for reasons to which I am not privy, decided not to use terms that have relatively clear meanings, such as "hearing de novo" and "rehearing". These terms have received considerable judicial interpretation and, though the precise boundaries of their meaning may not be exact, are tolerably well understood. See Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 (at [67] to [78]).

14. It seems to me that the appeal in s 82(a) is what is usually called a "hearing de novo" and that the appeal in s 82(b) is what is usually called a "rehearing".

17. This view was reiterated in Giusida Pty Ltd v Commissioner for ACT Revenue[7] where his Honour wrote:

15. I see no reason to resile from or change my view about the proper meaning of s 82 of the ACT Civil and Administrative Tribunal Act as here expressed.

18. In the context of section 82 of the ACAT Act, the present appeal is to be dealt with as a review of part or all of the original decision. It is akin to a rehearing on the evidence before the Original Tribunal or a rehearing on that evidence supplemented by such further evidence as the Appeal Tribunal admits under Rule 91(c) of the ACAT Rules.

19. Earlier judgments and decisions provide some guidance about the circumstances in which leave might be granted to receive further evidence about questions of fact.

20. In CDJ v VAJ (No 1),[8] the High Court considered the operation of section 93A(2) of the Family Law Act 1975 (Cth) which provided that in an appeal the Family Court shall have regard to the evidence given in the proceeding out of which the appeal arose and "has power ..., in its discretion, to receive further evidence upon questions of fact." That power is expressed in similar terms to those used in Rule 91(c) of the ACAT Rules.

21. As the High Court noted, section 93A(2) refers to "further evidence" rather than "fresh evidence."[9] It confers power on the Family Court to receive further evidence "in its discretion" while remaining silent as to any matter limiting or governing the exercise of that discretion.[10] Although the discretion is not expressed to be limited in any way, it is not unfettered.[11] The discretion is confined by the subject matter with which it is concerned.[12] In other words, the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry.[13] The subject matter, scope and purpose of the appeal provisions, and the issues involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power.[14]

22. In that case, their Honours highlighted some of the matters dealt with under the Family Law Act 1975 (Cth) that might attract a broad exercise of discretion, such as in custody cases where circumstances are changing during the course of litigation. So, for example, Justice Kirby wrote "The power to admit further evidence in an appeal is provided out of recognition of the fact that the circumstances that pertain to a parenting order can alter very rapidly, even in the interval during which the appeal is pending".[15] Justice Kirby also stated, in relation to a similarly worded discretionary power in section 27 of the Federal Court of Australia Act 1976 (Cth), that:

... in the Federal Court, it has been recognised that a wider approach is appropriate where the interests of persons other than the parties, or where the public interest, may be affected by the determination of the appeal in question. Thus, a greater willingness to receive further evidence on appeal has been evidenced in a case involving bankruptcy affecting the interests of creditors generally, and another in which the status of an industrial organisation was involved. Obviously, a case concerned with the status, welfare, residence and other rights of children bears close similarity to the last-mentioned cases.[16] (emphasis added)

23. However, Justice Kirby expressed the view that although the circumstances of the tender of evidence under section 93A(2) of the Family Law Act 1975 (Cth) are so infinitely varied that it is impossible and inappropriate to adopt precise rules, it is necessary to recognise the function of the primary judge. He continued:[17]

The advantages which that judge ordinarily enjoys make it appropriate that the reception of further evidence on appeal should be exceptional. Where the evidence existed at the time of the trial, it will ordinarily be relevant to consider whether, by the exercise of reasonable diligence, it could have been tendered at the trial. Where a party, knowing of its existence, chooses not to tender it there, that fact may afford a reason for rejecting it on appeal. (emphasis added)

24. Justice Gaudron expressed the view that, in the case where a discretion is conferred on a court exercising appellate jurisdiction after a hearing where parties can put their case and answer the case made against them, "ordinarily, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing."[18]

25. Justices McHugh, Gummow and Callinan stated that factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of discretion.[19] Their Honours continued:

The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.[20]

26. In the later case of Fox v Percy, Chief Justice Gleeson and Justices Gummow and Kirby wrote:

The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits.[21] (emphasis added)

this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not.[22]

28. In Amer v Erikson, Presidential Member Daniel reviewed the authorities and stated:[23]

19. 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.

20. 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.

21. 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...

29. Presidential Member Daniel continued: [24]

The next factor to consider is the probative effect of the new evidence. If the loss assessor's report had been before the Original Tribunal, would this have produced, or been likely to produce, a different outcome?

30. From those passages, and the authorities referred to in them, it is apparent that an appeal Tribunal would only grant leave to admit further evidence about questions of fact in exceptional circumstances where it serves the demands of justice to do so.

31. The subject of the present appeal is a private dispute between two parties about whether each owes the other money. Significant as it is to the parties, it does not have wider implications for the interests of persons other than the parties or the public interest. In deciding whether to exercise the broad discretionary power under Rule 91(c) of the ACAT Rules, the present Appeal Tribunal should consider:

(a) whether the evidence was available at the time of the hearing before the Original Tribunal;

(b) if the evidence was available at the time, whether it could have been obtained and tendered or adduced orally at the hearing;

(c) if the evidence was available, whether the party chose not to tender or adduce it;

(d) if the evidence had been available to the Original Tribunal, whether it would have produced a different result.

32. In the course of submissions about whether further evidence should be adduced at the hearing of the appeal, some matters were raised that relate to the merits or otherwise of the appeal. Those matters can be argued and dealt with at the hearing of the appeal and need not be considered in these reasons for decision. Rather, the application to adduce further evidence will be considered by reference to factors outlined above.

Volumes of documents for Supreme Court proceedings

33. Mr Hurst-Meyers urged this Tribunal to allow him to rely on four folders of documents that he prepared for his proceedings in the Supreme Court. The hearing of that case occurred on 12 December 2017 and 2 February 2018 and judgment was delivered on 9 March 2018. The folders of documents were provided to the Original Tribunal and referred to in those proceedings. Mr Hurst-Meyers said that they were handed back to him at the end of the hearing.

34. Mr Hurst-Meyers also provided to the Original Tribunal a summary of the proceedings before the Supreme Court and four hours of sound recording of that hearing.

35. As I understand it, the purpose of seeking leave to rely on those documents in these proceedings is to show:

(a) that Aulich Law did not understand the law that applied in his case against the Public Trustee and Guardian;

(b) that the folders of documents were his property and should not have been retained by Aulich Law after the firm and he parted ways and the firm no longer represented him; and

(c) the amount of effort and cost Mr Hurst-Meyers was put to when preparing the documents (which formed at least part of his original cross-claim, against Aulich Law).

(a) the relevance of the Supreme Court transcript was dealt with on the first day of the hearing before the Original Tribunal;

(b) the summary of evidence was in evidence before the Original Tribunal;

(c) the Supreme Court proceedings were dealt with in detail at the hearing before the Original Tribunal.

37. On 4 November 2019, Mr Hurst-Meyers filed four bundles of documents and a four hour recording concerning the ACT Supreme Court matter[25] in which Aulich Law formerly acted for him.

38. The orders made by Senior Member Warwick on 6 November 2019:

(a) noted that Mr Hurst-Meyers had filed documents comprising materials relevant to the application before the Original Tribunal and materials relevant only to a proposed application by him for costs; and

(b) included an order that Mr Hurst-Meyers advise Aulich Law and the Tribunal by 20 November 2019 which materials he relied on for the determination of the application before the Original Tribunal and confirming that the remaining materials are not relied upon for the determination.

39. At the hearing before the Original Tribunal on 26 February 2020, Mr Hurst- Meyers agreed on what material would be tendered as exhibits. In particular, Mr Hurst-Meyers agreed not to tender all the documents contained in what he identified in the 'yellow folder', which included a chronology. The Original Tribunal went through the documents in the folder with Mr Hurst-Meyers. Among the evidence that he agreed not tender was a summary of the Supreme Court proceedings and the recording of the proceedings at the Supreme Court, which he is now seeking leave to adduce. As the transcript shows:

MR HURST-MEYERS: After the chronology, you've got the transcripts from McWilliam. They're just related to the - what's on discs handed to the tribunal and also Aulich.

PRESIDENTIAL MEMBER McCARTHY: Okay. But what I want to know about this is, look down here. It's not clear to me at the moment what purpose is served because looking at the first group when you talk about words to the effect, and then you've got 1.28, I take it these are comments that McWilliam AsJ said during the hearing. Is that right?

MR HURST-MEYERS: Yes, both McWilliam and also Sharwood.

PRESIDENTIAL MEMBER McCARTHY: Well, that's the second page. Just focus on the first bit. Looking at the little summary there, it seems to me that that is very brief summary of what ultimately ends up in the decision anyway.

PRESIDENTIAL MEMBER McCARTHY: So given that we've got the decision where that substance is recorded in the decision I mean, - - -

PRESIDENTIAL MEMBER McCARTHY: - - - I can't see any value in us hearing what McWilliam had to say in the hearing. Would you agree?

PRESIDENTIAL MEMBER McCARTHY: Okay, so can we put that section aside?

40. There is no dispute that the evidence of the Supreme Court hearing, sought to be adduced was available before the Original Tribunal. Indeed, Tabs 2 to 31 of the documents in the folder were marked as Exhibit R8 and so are already in evidence. Some other documents from the folders were also marked as exhibits.[27] Following an exchange with the Original Tribunal, Mr Hurst-Meyers agreed with the Original Tribunal that "we can put aside all the other folders" and there were no other documents that he wished to rely on in his case.[28]

41. The evidence that Mr Hurst-Meyers wants to adduce on appeal is not fresh or new or even additional. It was clearly available and provided to the Original Tribunal. Its relevance was discussed orally during the proceedings. Some of it is already in evidence. Mr Hurst-Meyers chose not to tender some on the basis that the judgment of McWilliam AsJ had already incorporated that evidence. The Original Tribunal discussed and quoted the judgment and took it into consideration in its decision.[29] It did so, in part at least, because Mr Hurst-Meyers confirmed to the Original Tribunal that everything he relied on to establish an aspect his counterclaim was to be found in the reasons for decision given by McWilliam AsJ.[30] For those reasons, the application with respect to this evidence is dismissed.

42. Mr Hurst-Meyers sought an affidavit from Mr Aulich accounting for all his conversations with Mr Dawson regarding what Mr Hurst-Meyers described as the $20,000 fee cap. In particular, Mr Hurst-Meyers referred to a document in a yellow folder at Tab 16 page 3 which apparently records that Mr Dawson stated that he discussed with Mr Aulich that he was unable to keep the cost under $20,000. Mr Hurst-Meyers contends that the document shows that the two men spoke about a cost cap, and that Mr Aulich could confirm that he spoke to Mr Dawson about imposing a cap. Mr Hurst-Meyers wants Mr Aulich's sworn testimony and notes of the discussion. Mr Hurst-Meyers also wants to know Mr Aulich's attitude to his financial limits, and contended that he has a right to cross examine Mr Aulich (as a hostile witness) who knew about the cap.

43. Mr Hurst-Meyers also referred to a phone call which the Original Tribunal alluded to in its reference to the particulars of professional fees invoiced on 31 January 2017 which indicated that Mr Dawson and Mr Hurst-Meyers discussed the evidence deadline on 23 January 2017. The Original Tribunal observed that a file note of the conversation "was not in evidence."[31] Mr Hurst-Meyers contends that this file note was withheld by Aulich Law. It was only when he read the Original Tribunal's reasons for decision that realised that the Original Tribunal had picked up on something that was not apparent to him. Then he remembered a conversation with Mr Dawson, telling Mr Dawson not to go above $20,000. Mr Hurst-Meyers said that he believes the document was withheld. It is the only piece of paper that is missing.

44. Mr Hurst-Meyers said that it did not occur to him to call Mr Aulich until he read the Original Tribunal's reasons for decision.

45. Aulich Law submitted that Mr Hurst-Meyers had access to the firm's Supreme Court matter file and was aware, before the proceedings in the Original Tribunal, of the conversations about which he now wants to examine Mr Aulich. Mr Hurst-Meyers made no attempt to subpoena Mr Aulich at the hearing. Further, Mr Hurst-Meyers refers to a discussion between Mr Aulich and Mr Dawson in which, he contends, Mr Aulich communicated to Mr Dawson that he would agree to a costs cap as requested by Mr Hurst-Meyers. But that would be of no consequence to the outcome of the case. Aulich Law submitted that the findings of the Original Tribunal are clear in that there was no evidence that the firm ever agreed to a costs cap. Mr Aulich never met with Mr Hurst-Meyers. All of Mr Hurst-Meyers' dealings were with Mr Dawson, and it is unequivocal on the evidence (that is, the firm's Supreme Court matter file) that Mr Dawson never communicated any agreement to Mr Hurst-Meyers that Aulich Law agreed to a costs cap.

46. In relation to any file note of the discussion between Mr Hurst-Meyers and Mr Dawson, Aulich Law submitted that nothing turns on it for the purpose of these proceedings. The Original Tribunal stated[32] that a file note of the conversation was not in evidence, but the conversation was about the evidence deadline on 23 January 2017.

47. Subsequent paragraphs of the reasons for decision dealt with the correspondence on the file. Having considered the totality of the evidence, the Original Tribunal decided that there was not a cap on the fees.

48. The submissions in relation to the evidence Mr Aulich might give traversed a range of matters. The main concerns related to the completeness of the firm's file and whether Mr Aulich's evidence might affect the outcome of the proceedings.

49. At the directions hearing on 6 November 2019, Mr Hurst-Meyers foreshadowed subpoenaing Aulich Law for its file in relation to his ACT Supreme Court matter. Aulich Law agreed to provide the file without the need for Mr Hurst-Meyers to issue a subpoena. On 13 November 2019, Aulich Law provided Mr Hurst-Meyers with what the firm described as a complete copy of its file held for the Supreme Court matter.

50. The hearing before the Original Tribunal took place on 26 and 27 February 2020. On the first day of the hearing, Mr Hurst-Meyers conceded in cross-examination that he had received a complete copy of Aulich Law's file in respect of this matter.[33]

51. Aulich Law's written and oral submission to this Tribunal was that Mr Hurst-Meyers had a complete copy of the firm's file which contained contemporaneous records of all Mr Hurst-Meyers dealings with any employee of Aulich Law. There are no further documents in the firm's possession relating to Mr Hurst-Meyer's matter. If any document (such as the file note of the conversation between Mr Hurst-Meyers and Mr Dawson) exists and was on the file, Mr Hurst-Meyers would have it and could have provided it to the Original Tribunal. Aulich Law has nothing else in its possession and has not withheld any document.

52. Mr Hurst-Meyers told this Tribunal that even if the missing phone record could be discovered and produced that would not be enough to satisfy him. He would still want to call Mr Aulich as a witness.

53. What is apparent from both the proceedings at the Original Tribunal and during these proceedings is that:

(a) Mr Hurst-Meyers relied on the content of a file that was already available to him in November 2019, and hence was available at the time of the hearing;

(b) the purpose of requesting Mr Aulich's affidavit is to support Mr Hurst-Meyers' contention that Mr Aulich agreed to a fee cap of $20,000, contrary to the conclusion reached by the Original Tribunal; and

(c) it was only after reading the Original Tribunal's decision, that the idea to call Mr Aulich to provide evidence occurred to Mr Hurst-Meyers.

54. I have made a distinction between the evidence that Mr Hurst-Meyers alleges is contained in a file note that was not in evidence before the Original Tribunal and the request to call Mr Ben Aulich to be cross-examined. I accept the statement by the firm that all the firm's evidence including documented file notes were available to Mr Hurst Meyers at the time of the Original Tribunal's hearing. As such, it was his choice what submission he made and what evidence was highlighted and tendered.

55. With respect to Mr Aulich swearing an affidavit or being subpoenaed to be cross-examined (as a hostile witness). Mr Aulich was available at the time of the hearing and Mr Hurst-Meyers did not subpoena him. In addition, given that Mr Aulich had no communication with Mr Hurst-Meyers during the relevant period, it is unclear how this supplementary evidence would have an effect on the Original Tribunal's decision.

56. It is clear from the documents quoted at length by the Original Tribunal[34] that the issue of the rising amount of fees and Mr Hurst-Meyers' capacity or willingness to pay them was considered by a partner or partners at Aulich Law in discussion with Mr Dawson. It is also clear that it was Mr Dawson who communicated the firm's position to Mr Hurst-Meyers, not Mr Aulich. There is nothing in that material to suggest that Mr Aulich agreed to a fee cap of $20,000. It is possibly relevant to note that the Original Tribunal quoted[35] an email from Mr Dawson to Mr Hurst-Meyers dated 19 January 2017 in which Mr Dawson referred to a discussion with Mr Aulich about bringing counsel back into the matter, then referred to the costs agreement sent to Mr Hurst-Meyers on 12 December 2016. Mr Dawson stated that he "will be unable to limit the costs to under $20,000 to get the job done or progress the matter much further at all". Although that statement is not attributed to Mr Aulich, it occurs in an email which states "I have discussed this matter with Ben Aulich, partner".

57. Mr Hurst-Meyers does not know what Mr Aulich would say if he gave evidence. He might simply reiterate what was in evidence before, and quoted by, the Original Tribunal.

58. For these reasons the application for leave to call that further evidence from Mr Aulich is dismissed.

59. Mr Hurst-Meyers wants Ms McGrath, the Office Manager of Aulich Law, to give evidence about:

(a) when the fee cap was put into place;

(b) the telephone log for the conversation with Mr Dawson (referred to at paragraph [64] of the Original Tribunal's reasons for decision) which Mr Hurst-Meyers contends was withheld from evidence by Aulich Law;

(c) any administrative notes of what was communicated to administration by Mr Dawson to control these costs as requested by Mr Hurst-Meyers;

(d) the firm's internal practice of limiting charges if instructed to do so by clients (together with all administrative notes regarding this); and

(e) what steps were taken by Aulich Law to pass on the subpoena to Mr Dawson to be a witness.

60. Mr Hurst-Meyers acknowledged that Ms McGrath was available to give evidence at the hearing and that he had agreed not to call her at that time. However, he now thinks that weakened his case and he wants to cross-examine her as a hostile witness about what she knows.

61. In response to the clear record that he had agreed not to call her to give evidence at the original hearing (and other instances of him agreeing to procedural suggestions made by Tribunal members in the course of ACAT hearings), Mr Hurst-Meyers contended that Presidential Member McCarthy is a 'charismatic leader' and that Mr Hurst-Meyers has to "get out of the habit of accommodating people in powerful positions".

62. That explanation of his behaviour before the Original Tribunal, whether or not it is a rationalisation that came to his mind after the hearing, does not overcome the reasonableness and logic of the approach suggested to and adopted by Mr Hurst-Meyers at the hearing before the Original Tribunal.

63. On 19 February 2020, Mr Hurst-Meyers sent an email to the Tribunal and Aulich Law notifying them that he no longer required Ms McGrath, to attend the hearing of the matter.

64. Despite that email, on 21 February 2020, Mr Hurst-Meyers requested Ms McGrath give evidence via telephone. On the same day, Aulich Law emailed the Tribunal and Mr Hurst-Meyers and notified them that Ms McGrath was not the Office Manager at the time of Mr Hurst-Meyers' matter but that, in any event, she would be available to give evidence by telephone.

65. During the hearing, the following exchange took place between Presidential Member McCarthy and Mr Hurst-Meyers in relation to any evidence that Ms McGrath might provide:[36]

PRESIDENTIAL MEMBER MCCARTHY:...Before we do that, Mr Hurst-Meyers, can you explain to me why- what evidence you anticipate her giving that's going to be relevant in the case?

MR HURST-MEYRS: Just the administrative link and protocol behind Doug Dawson being advised, and if there was any communication about those facts

PRESIDENTIAL MEMBER MCCARTHY: Alright. So two things. One, she didn't work there at the time.

MS TAYLOR: She wasn't the office manager at the time

... PRESIDENTIAL MEMBER MCCARTHY: All right..... Ms Taylor, do I take it that Aulich Civil Law Pty Ltd accepts responsibility for whatever M Dawson did or didn't do?

PRESIDENTIAL MEMBER McCARTHY: ... Why does Ms McGrath's evidence matter one way or another as to what Mr Dawson did or didn't do?

MR HURST-MEYERS: I accept the statement. If Aulich Law is accepting responsibility for Mr Dawson's actions then I except that - I except that and that's primarily where I was going towards anyway.

PRESIDENTIAL MEMBER McCARTHY: And believe me, I'm not for a moment criticising you because you didn't have that assurance until now.

PRESIDENTIAL MEMBER McCARTHY: But now that you do have that, does that mean there is no need to call this McGrath?

MR HURST-MEYERS: Yes, as long as the Tribunal accepts the same statement, then I am happy to.

(a) Mr Hurst-Meyers had the opportunity to call Ms McGrath in the hearing and chose not to do so;

(b) Mr Hurst-Meyers has no insight into the evidence that Ms McGrath could give; and

(c) any evidence that Ms McGrath might give in relation to Aulich Law's internal procedures or protocols cannot have any bearing on the outcome because it is clear, on the evidence presented, that no cost cap was ever applied by Aulich Law.

67. The availability of Ms McGrath to provide evidence before the Original Tribunal is not disputed. In fact, Mr Hurst-Meyers admitted that he agreed not to call her. The exchange recorded in the transcript (quoted above) explains why. Accordingly, this evidence was available at the time of the hearing, the decision was made by Mr Hurst- Meyers not to adduce evidence from her, and it was made clear that her evidence would not have any bearing on the outcome of the Original Tribunal's decision. The fact that only after reading the Original Tribunal's decision, he realised that his choice "weakened his case" is not sufficient to warrant introducing this evidence at the appeal stage. The application with respect to this evidence is therefore dismissed.

68. Mr Hurst-Meyers wants to call Mr Dawson to confirm:

(a) that a fee cap was set by Mr Hurst-Meyers (including in telephone conversations) and that it was recorded in the documents that were withheld by Aulich Law; and

(b) his advice to Mr Hurst-Meyers (in the presence of Ms Taylor and Liza Hurst-Meyers) that Mr Hurst-Meyers could not win the case against the Public Trustee and Guardian and should stop the application.

69. Mr Hurst-Meyers contends that the evidence that he told Mr Dawson "in no uncertain terms" about his financial situation and why there should be a fee cap and how furious he was about the bills that the firm kept issuing, "turns everything".

71. The evidence was not available at the hearing before the Original Tribunal because, although they tried to find Mr Dawson "in many ways" and made "considerable effort" to contact him, they were unable to do so. Mr Dawson's assistant said that he went travelling overseas but would return to Australia. According to Mr Hurst-Meyers, his only contact with Mr Dawson was through Aulich Law, which would not release his address to Mr Hurst-Meyers. Aulich Law had agreed to pass on the subpoena to Mr Dawson, but there was no evidence that the firm did so.

72. There were two limbs to Aulich Law's submission. First, Aulich Law submitted that Mr Hurst-Meyers had access to the firm's file and did not call Mr Dawson to give evidence. Aulich Law did not have Mr Dawson's current address, and Mr Hurst Meyers did not subpoena the firm for it. Despite directions made by the Tribunal, Mr Hurst-Meyers did not provide information about his attempts to contact Mr Dawson. Although he left a subpoena to Mr Dawson at Aulich Law's office, there was no request for the firm to forward it to Mr Dawson and there was no order of the Tribunal that it do so. Nor had Aulich Law given an undertaking in relation to that subpoena. Rather, Aulich Law submitted, it was for Mr Hurst-Meyers to either serve the subpoena or advise why he had not served it and make an application to the Tribunal in accordance with orders made by Senior Member Warwick and Presidential Member McCarthy.

73. Second, Aulich Law submitted, even if he was called as a witness, nothing would turn on his evidence. Mr Hurst-Meyers had the complete firm file and there is nothing that Mr Dawson could add.

74. Two observations should be made about Mr Dawson's evidence. First, it is evidence that could (and possibly would) have been given at the hearing before the Original Tribunal had Mr Dawson been subpoenaed to give that evidence. Mr Hurst-Meyers focussed on the subpoena issue, and, although there seem to be some differences of recollection, it is appropriate to outline what occurred.

75. In summary, on 6 November 2019, the parties attended a directions hearing for the matter before Senior Member Warwick. Mr Hurst-Meyers stated that he wished to call Mr Dawson to give evidence. The representative of Aulich Law informed Mr Hurst-Meyers that Mr Dawson was no longer employed by the firm and that they did not have a current address for Mr Dawson. Apparently, Senior Member Warwick suggested that Mr Hurst-Meyers notify Aulich Law of any attempts that had been made to locate Mr Dawson. Senior Member Warwick also notified Mr Hurst-Meyers that he may make application for any subpoena to Mr Dawson to be forwarded by Aulich Law or to subpoena Aulich Law for the last contact details that the respondent held for Mr Dawson.

76. The orders made that day included an order that Mr Hurst-Meyers was to advise the efforts he had made to contact Mr Dawson by email to Aulich Law on or before 20 November 2019.

77. According to Mr Hurst-Meyers he tried in many different ways to locate Mr Dawson and was informed by his assistant that Mr Dawson was traveling. In any case, Aulich Law declined to voluntarily provide Mr Hurst-Meyers with Mr Dawson's contact details.

78. Despite the direction made on 6 November 2019, Mr Hurst-Meyers:

(a) did not notify Aulich Law of any attempts made by him to locate Mr Dawson;

(b) did not apply for any subpoena to Mr Dawson to be forwarded by Aulich Law to Mr Dawson; and

(c) did not subpoena Aulich Law for Mr Dawson's contact details.

79. On 27 November 2019, Senior Member Warwick made further directions including that the matter be listed for hearing on 12 February 2020 and that Mr Hurst-Meyers give to the Tribunal and each other person by 15 January 2020 a written statement of every witness who he would call to give evidence at the hearing.

80. The bench sheet for that directions hearing includes a handwritten note by Senior Member Warwick to the effect that Mr Hurst-Meyers intended to issue a subpoena for Mr Dawson to attend as a witness and that Mr Hurst-Myers had no contact details for him. Aulich Law "will forward subpoena by prepaid post to the last known address" for Mr Dawson "upon request from Trib Registrar and to any more recent address that may be obtained by Aulich Civil Law via social media. (No promise by Aulich to contact DD but will do their best)."

81. The directions made on 27 November 2019 were amended on 10 January 2020 and 5 February 2020 in response to requests by Mr Hurst-Meyers for extensions of time. On 5 February 2020, Presidential Member McCarthy made orders listing the matter for hearing on 26 February 2020 and requiring Mr Hurst-Meyers to provide the Tribunal with a draft subpoena directed to any witness that he required to attend and give evidence by 5pm on 10 February 2020.

82. According to Aulich Law, on or around 10 February 2020 Mr Hurst-Meyers:

(a) filed subpoenas to, among others, Ms McGrath of Aulich Law and Mr Dawson;

(b) left a copy of the subpoenas to those people in the reception area of Aulich Law.

83. Aulich Law understands that Mr Hurst-Meyers did not serve these people with the subpoenas, and he made no attempt to contact Mr Dawson. He did not seek to have the subpoena to Mr Dawson forwarded by Aulich Law. Nor did he subpoena Aulich Law for Mr Dawson's contact details.

84. Whatever evidence Mr Dawson could give, he would have been able to give at the time of the original hearing. In other words, the evidence existed at that time. Yet, he was not called. Had Mr Hurst-Meyers taken the steps set out in the directions, the problems of locating Mr Dawson might have been addressed.

85. Mr Hurst-Meyers also did not subpoena Aulich Law for the contact details of Mr Dawson. It is not sufficient for him to rely on the party with which he is in dispute to deliver his subpoena, and now seek to call Mr Dawson because Aulich Law failed to do so.

86. Second, I am not satisfied that had Mr Dawson been called as a witness, his evidence would have made a difference to the findings of the Original Tribunal.

87. As noted earlier, the Original Tribunal quoted[37] the records of communications between Mr Dawson and Mr Hurst-Meyers about the changing estimates of costs and Mr Hurst-Meyers' circumstances, and file notes and communications to Mr Hurst-Meyers to the effect that Mr Dawson had raised with a partner or partners of Aulich Law the issue of the amount of costs incurred by the firm and whether the necessary work could be done within amounts nominated by Mr Hurst-Meyers, and the pressure Mr Dawson was under from the partners to ensure payment by Mr Hurst-Meyers of outstanding amounts.

88. In addition, the Original Tribunal expressly addressed the point about whether Mr Dawson advised Mr Hurst-Meyers that he could not win the case against the Public Trustee and Guardian and should stop the application. As the Original Tribunal noted, Mr Dawson gave advice in conference that Mr Hurst-Meyers was likely to lose the case "if he failed to provide appropriate documentary evidence. That is clear from [Mr Dawson's] email sent on 6 June 2017, and [Aulich Law] always accepted that it was responsible for the correctness of the solicitor's advice."[38]

89. For those reasons, the application for leave to provide this evidence on appeal is dismissed.

90. Mr Hurst-Meyers wants to recall Liza Hurst-Meyers to expand on her sworn testimony and on her current affidavit, and to include conversations that she was privy to and that confirmed the Hurst-Meyers' position that they had a set budget for their matter and that Aulich Law was told that. At least some of those conversations were only between Mr Hurst-Meyers and Ms Hurst-Meyers, but she was also present at a few meetings with Mr Dawson.

91. Mr Hurst-Meyers noted that Ms Hurst-Meyers gave uncontested oral evidence at the hearing before the Original Tribunal, but in retrospect he realised the importance of "internal discussions" with Ms Hurst-Meyers, who was his wife at that time. She was involved in every decision they made and was aware of the reason for capping the fees.

92. Mr Hurst-Meyers stated that Ms Hurst-Meyers made a written statement at his suggestion after the decision by the Original Tribunal. He said that the statement was prepared with the assistance of a paralegal at another law firm. Mr Hurst-Meyers has seen the statement. He contended that it would need to be expanded upon, but it states that Ms Hurst Meyers met with Mr Dawson.

93. Mr Hurst-Meyers also contended that her evidence would be believed and would affect the result in this case.

94. Aulich Law noted that Mr Hurst-Meyers called Lisa Hurst-Meyers in the proceedings and she gave evidence. In Aulich Law's submission, the Original Tribunal found her evidence unhelpful and found that the evidence she gave regarding the second meeting was not reliable and that, in any event, nothing turned on the evidence that she gave.[39] No subsequent statement should be adduced in the appeal proceedings.

95. Not only was the evidence by Ms Hurst Meyers available at the time of the hearing, she gave evidence and her witness statement was marked as Exhibit R7. She was questioned by Mr Hurst-Meyers and he decided not to continue her examination.

96. It is clear from the Original Tribunal's reasons for decision[40] that Ms Hurst-Meyers (and Mr Hurst-Meyers) gave evidence that they both attended a conference with Mr Dawson and Ms Taylor of Aulich Law, in which Ms Taylor and Mr Dawson gave advice about the respondent's prospects of success. Each lawyer is claimed to have said, "You will not win." Neither Ms Hurst Meyers nor Mr Hurst-Meyers was specific about the date of the conference.

97. The Original Tribunal assessed Ms Hurst-Meyers' evidence in the context of the evidence as a whole.[41]

98. The fact that Mr Hurst-Meyers later realised that Ms Hurst-Meyers could have given additional evidence to bolster his case is no reason to grant leave to recall his witness at the hearing of the appeal.

99. In any case, the further evidence that Mr Hurst-Meyers expects that Ms Hurst-Meyers would give to the Appeal Tribunal would seem to do no more than expand on what was before the Original Tribunal. In addition, evidence of her private conversations with Mr Hurst- Meyers would have not resulted in a different outcome. Nor would further evidence that she was present at the discussion between Mr Hurst-Meyers and Mr Dawson. The application for that evidence to be provided on appeal is dismissed.

100. The decision of the Original Tribunal was delivered on 21 April 2020. Mr Hurst-Meyers lodged his application for appeal with the Tribunal on 19 May 2020.

101. On 3 July 2020, Aulich Law lodged a cross-appeal against that part of the Original Tribunal's decision that relates to costs. It sought leave to appeal that part of the decision out of time.

102. Section 79 of the ACAT Act provides that if the Tribunal has decided an application:

(3) A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.

103. Part 3.1 of the ACAT Rules applies to appeals within the Tribunal under section 79 of the ACAT Act. Rule 94 states:

94 Application for appeal within tribunal - time for lodging

An application for appeal within the tribunal must be lodged no later than 28 days after the day the orders of the tribunal in the original application were made, or any further time that the tribunal allows.

Note 1 An application for further time may be made before or after the 28-day period (see Legislation Act, s 151C).

Note 2 For rules about extending time, see r 38 (Extension of time for making application).

104. The provisions of Rule 38 relevant to the present proceedings state:

1. This rule applies if there is a time limit under the Act, another law or these rules for making an application to the tribunal.
2. The tribunal may, by order, extend the time for making an application.

Note A request for extension of time may be made even though the time to be extended has already ended (see Legislation Act, s 151C).

1. The tribunal may make an order under subrule (2) on application by a party, another person or on its own initiative.

Note An application for an order under this part can be made using the approved form Application for Interim or Other Orders - General.

(5) This rule is subject to any express provision about the extension of time in these rules or any other law.

1 the Planning and Development Act 2007 prohibits the extension of time for some applications

2 the Limitation Act 1985 provides for extension of time for some claims

105. The principles that the Tribunal must follow when considering an application for leave to appeal out of time are well-established and used regularly by courts and tribunals. In Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority)[42] (Concerned Citizens), Justice Refshauge repeated the principles he had set out in an earlier case:

1. Time limits are important and must, prima facie, be obeyed.

2. In order to justify a court acceding to an application to extend time, there must be some material on which the court can exercise its discretion.

3. Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so.

4. There should be an explanation for the delay, as to which any action (other than to appeal) that has been taken by the applicant is relevant.

5. The court must consider any prejudice to the respondent in defending the proceeding, as caused by the delay, and any such prejudice will tell against the extension.

6. The mere absence of prejudice is not enough to justify the extension of time.

7. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted.

8. The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case.

9. Nevertheless, the application is to be determined by the court's view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula.

10. In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.

106. That passage has been relied on by the Tribunal in published decisions[43] and oral ex tempore decisions.

107. Drawing on those principles in this case it is appropriate to consider the length of the period beyond the 28 day appeal period after which Aulich Law lodged its application for appeal, the reason(s) for the delay, whether Mr Hurst-Meyers would be prejudiced if Aulich Law were to be granted an extension of time, the merits or prospects of success of the appeal, whether the interests of justice demand that an extension be granted, and whether a miscarriage of justice will occur if an extension is not granted.

108. Aulich Law states that it was not served with Mr Hurst-Meyer's application for appeal until the final day of the appeal period. After it received the application for appeal, Aulich Law decided to appeal in relation to the decision dismissing its application for costs.

109. Aulich Law submitted that its prospects of success on appeal are good. In summary, Mr Hurst-Meyers had repeatedly not complied with directions of the Tribunal and that constituted "unreasonable delay or obstruction" of a type referred to in section 48(2)(b) of the ACAT Act. Although the Original Tribunal had dealt with those submissions, it found it "impossible to discern" any agreement on the part of Aulich Law to limit its costs to $20,000 plus GST.[44] Aulich Law submitted that the Original Tribunal had a discretion to award costs.

110. Aulich Law also submitted that Mr Hurst-Meyers would not be prejudiced if it was granted leave to appeal out of time.

111. Aulich Law also submitted that it is in the interests of justice to grant an extension of time to appeal. The objects of the ACAT Act include, in sections 6(b) and (c) of the ACAT Act that:

(b) ....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

112. Mr Hurst-Meyers' conduct did not accord with that, and the Tribunal should not allow non-compliance with its objectives and an order for costs should flow on from that conduct.

113. Aulich Law submitted to the Original Tribunal that Mr Hurst-Meyers' conduct was entirely inconsistent with the objects and principles of the ACAT Act and therefore costs should be awarded to the firm.[45]

114. Further, it submitted, there would be a miscarriage of justice if Aulich Law could not have the opportunity to argue that the Original Tribunal fell into error.

116. He noted that in other proceedings before the Tribunal in which he is involved, he lodged an application for appeal one day after the appeal period and was denied leave to appeal. (That decision is currently under appeal.) In his submission, if he as an unrepresented appellant was denied leave to appeal out of time, a law firm (who "are legal professionals and know the actual rules. They have broken their own set of rules and they have offered up no reason why...") should not be granted leave to appeal so many days after the appeal period expired.

117. Further, he took issue with Aulich Law's contention about delay on his part. He noted that on 9 January 2020 Ms Taylor, a partner at Aulich Law, sent the Tribunal an email stating that a one-month adjournment would be appropriate because of the effect of summer fires. He added that all of the deadlines in the proceedings before the Original Tribunal were upheld, as is evident in the discussion in relation to costs on the final day of the hearing before the Original Tribunal.

118. In his submission, the Tribunal is a non-costs jurisdiction and Aulich Law had the same period as he had within which to lodge its appeal.

119. The starting point is that time limits are important and must, prima facie, be obeyed. As this Tribunal observed in Commissioner for Social Housing v Williams,[46] that principle is based on time limits being established for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty to the parties to proceedings (especially the party in whose favour orders have been made), and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced.[47]

120. Exceptions should be made where the interests of justice so require. However, the Tribunal should have regard to a range of case management matters when deciding whether to permit an extension of time for an appeal which would otherwise be prohibited by the Rules. The Tribunal will consider the needs of Tribunal users generally, not only on doing justice between parties in the individual case, and the wider public interest in the use of the Tribunal's limited resources. As the High Court stated in Aon Risk Services Australia Limited v Australian National University,[48] the Court recognises the effects of delay not only on parties to the proceedings in question but upon the court (or tribunal) and other litigants. Dealing with applications for extensions of time, as well as the grant of such extensions, displaces resources that could be used to deal with other aspects of the Tribunal's work.[49]

(a) the object of the ACAT Act "to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice;" and

(b) the statutory principle that, in exercising its functions under the ACAT Act, the Tribunal must ensure that its procedures are "as simple, quick, inexpensive and informal as is consistent with achieving justice."[50]

122. The application for appeal was lodged 45 days after the 28 days prescribed by the Rules as the period in which an application for appeal "must be lodged." That is not an insubstantial period. It is 73 days after the decision was released.

123. The reason for the delay is not clear. If, as it submitted, Aulich Law considered that it had strong prospects of success on appeal against the decision in relation to costs, it could have lodged the appeal within time and irrespective of whether Mr Hurst-Meyers chose to appeal.

124. If, as seems to be the case, Aulich Law waited to see whether Mr Hurst-Meyers would appeal before lodging its cross-appeal, then that would explain a delay of a day or so in lodging its application for appeal. It does not explain a delay of 45 days. Either way, it is difficult to see how the timing of such a tactical response itself is a compelling reason for lodging the appeal out of time. It would have been open to Aulich Law to lodge its application for appeal within time and then withdraw it if Mr Hurst-Meyers had chosen not to appeal.

125. Aulich Law submitted that Mr Hurst-Meyers would not suffer prejudice if the extension of time were to be granted. On one view, that is correct given that Mr Hurst-Meyers' appeal is scheduled to be heard and the cross-appeal could be heard at the same time. However, although Mr Hurst-Meyers made no submission on this point, he might suffer detriment in having to prepare his response to an unexpected cross-appeal lodged within the timeframe already set for his appeal to be heard. I need not express a concluded view about whether or how much prejudice he might suffer because, as Refshauge J pointed out, the mere absence of prejudice is not enough to justify the extension of time.

126. It is not necessary in these circumstances for this Tribunal to express a concluded view about the prospects of success on appeal. It is sufficient to note that the Original Tribunal considered in detail the application by Aulich Law that Mr Hurst-Myers pay the firm's costs of proceedings on a party/party basis, or alternatively, as agreed or assessed. The Original Tribunal quoted the lengthy (though imprecise) submissions by Aulich Law which expressed concerns that Mr Hurst-Myers had "attempted to obstruct or delay the resolution of these proceedings on numerous occasions and has failed to comply with directions of the Tribunal."[51]

127. The Original Tribunal observed that a party seeking an order under section 48(2) of the ACAT Act bears the onus to demonstrate that its case comes within one of the circumstances set out in section 48(2)(a) to (d). Before it could make an order under section 48(2)(b) on the "unreasonable delay" ground, the Tribunal must be satisfied that the party against whom costs are sought "caused" the actual delay and that the delay was "unreasonable" in all the circumstances. An "attempt" to delay resolution of the proceeding does not meet the requirements of the section.[52] Having considered the submissions, and for the reasons it set out, the Original Tribunal was not persuaded that it could order Mr Hurst-Myers to pay Aulich Law's costs under section 48(2)(b) on the "unreasonable delay" ground.[53] For the reasons it set out, the Original Tribunal also concluded that it was not satisfied that it had power to award costs under section 48(2)(b) on the "obstruction" ground.[54] It is clear from the reasons for decision that the Original Tribunal concluded that it did not have power to award costs, not that it exercised its discretionary power to dismiss the application for costs made by Aulich Law.

128. It cannot be said that the Original Tribunal failed to consider the submissions advanced by Aulich Law or that the Original Tribunal did not give reasoned consideration in relation to reaching a conclusion contrary to that put by Aulich Law. Nor do those reasons disclose any obvious error of reasoning leading to that conclusion.

129. This Tribunal is not convinced that the interests of justice support, let alone compel, the grant of leave to appeal against the Original Tribunal's order in response to Aulich Law's application for costs. However frustrating Mr Hurst-Meyers' applications for adjournments were, the Tribunal granted adjournments. Nor is this Tribunal satisfied that a miscarriage of justice would occur if Aulich Law is not granted an opportunity to argue that the Original Tribunal fell into error in refusing to make an order for costs in the firm's favour.

130. Taking into account the evidence and submissions as a whole, it is appropriate to dismiss the application by Aulich Law for leave to cross-appeal out of time because of:

(a) the substantial period between the end of the 28 day appeal period and when the application was made;

(b) the lack of a persuasive reason or reasons for the delay in making the application;

(c) the potential detriment to Mr Hurst-Meyers if leave were to be granted at this late stage;

(d) the absence of prospects of success on appeal, given the detailed reasons for decision by the Original Tribunal and no obvious error of reasoning leading to its conclusion; and

(e) the absence of persuasive reasons that the interests of justice require the grant of leave, or that there would be a miscarriage of justice if leave is not granted.

1. The application by Ralph Hurst-Meyers for the grant of leave to provide further evidence about questions of fact on appeal is dismissed.

2. The application by Aulich Civil Law Pty Ltd ACN 155 746 777 for the grant of leave to cross-appeal out of time is dismissed.

[1] Fox v Percy [2003] HCA 22

[2] Fox v Percy [2003] HCA 22 at [20] citing Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 619-622, and Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 40-41 [130]

[3] See for example Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 180-181 [23], 187 [44]

[4] Fox v Percy [2003] HCA 22 at [20]

[5] Macquarie Dictionary, Macquarie Dictionary Publishers, Seventh edition, 2017, page 1283

[6] Legal Practitioner v Council of Law Society (ACT) [2011] ACTSC 207; (2011) 257 FLR 118 at [13]- [14]

[7] Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [37]

[8] CDJ v VAJ (No 1) [1998] HCA 67

[9] CDJ v VAJ (No 1) [1998] HCA 67 at [52] per Gaudron J, [100] per McHugh, Gummow and Callinan JJ, [185]6 per Kirby J

[10] CDJ v VAJ (No 1) [1998] HCA 67 at [52] per Gaudron J, [185]6 per Kirby J

[11] CDJ v VAJ (No 1) [1998] HCA 67 at [107], [108] per McHugh, Gummow and Callinan JJ, [185]8 per Kirby J

[12] CDJ v VAJ (No 1) [1998] HCA 67 at [53] per Gaudron J

[13] CDJ v VAJ (No 1) [1998] HCA 67 at [104] per McHugh, Gummow and Callinan JJ

[14] CDJ v VAJ (No 1) [1998] HCA 67 at [108] per McHugh, Gummow and Callinan JJ

[15] CDJ v VAJ (No 1) [1998] HCA 67 at [185] 9

[16] CDJ v VAJ (No 1) [1998] HCA 67 at [185] 7, citations omitted

[17] CDJ v VAJ (No 1) [1998] HCA 67 at [185] 9

[18] CDJ v VAJ (No 1) [1998] HCA 67 at [55][ per Gaudron J

[19] CDJ v VAJ (No 1) [1998] HCA 67 at [104]

[20] CDJ v VAJ (No 1) [1998] HCA 67 at [111]

[21] Fox v Percy [2003] HCA 22 at [22]

[22] Fox v Percy [2003] HCA 22 at [26]

[23] Amer v Erikson [2019] ACAT 108 at [19]-[21] citations omitted

[24] Amer v Erikson [2019] ACAT 108 at[26]

[25] Hurst-Meyers v Public Trustee and Guardian for the ACT [2018] ACTSC 61

[26] Transcript of the proceedings of 26 February 2020, pages 78-79

[27] Transcript of proceedings 26 February 2020 pages 83-87

[28] Transcript of proceedings 26 February 2020 pages 87-88

[29] Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [160],[162]-[169]

[30] Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [161]

[31] Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [64]

[32] Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [64]

[33] Transcript of the proceedings of 26 February 2020, at page 62

[34] See Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [45] and [131], [59], [74], [92] and [98]

[35] Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [59]

[36] Transcript of proceedings 26 February 2020 pages 51-52

[37] Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [45] and [131], [59], [74], [92] and [98], see also [99] and [108]

[38] Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [102], see also [172]-[177]

[39] Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [101]- [102].

[40] Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [101]

[41] Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [102]

[42] [2015] ACTCA 56 at [20] - [21]

[43] See, e.g. Commissioner for Social Housing v Williams [2017] ACAT 53 and cases cited there.

[44] Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [133]

[45] Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [188]

[46] Commissioner for Social Housing v Williams [2017] ACAT 53

[47] Commissioner for Social Housing v Williams [2017] ACAT 53 at [24]

[48] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [111] per Gummow, Hayne, Crennan, Kiefel and Bell JJ

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

[50] Commissioner for Social Housing v Williams [2017] ACAT 53 at [21] quoting ACT Civil and Administrative Tribunal Act 2008 sections 6(c) and 7(a)

[51] Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [182]- [187]

[52] Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [191]- [192]

[53] Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [193]- [194]

[54] Aulich Civil Law Pty Ltd ACN 155 746 777 v Hurst-Meyers [2020] ACAT 26 at [195]- [198]