List of Regulations: ACT Civil and Administrative Tribunal Procedural

List of Cases: Allesch v Maunz (2000) HCA 40; 203 CLR 172

Kang v R & D Constructions Pty Ltd (2013) ACAT 24

Thornthwaite v Commissioner for Social Housing (Residential Tenancies) (2012) ACAT 11

Appeal Tribunal: W.G Stefaniak - Appeal President

APPEAL TRIBUNAL: Mr W G Stefaniak, Appeal President

1. Appeal dismissed.
2. Judgment for the Respondent in the sum of $879.00 (being filing fee of $46.00, debt of $477.00 and interest of $56.00 for XD 12/710, plus costs of $300 awarded by Registrar Thompson on 16 January 2013).
3. The appellant is allowed 28 days to pay.

1. This appeal was heard on 22 April 2013. The initial appeal documents were lodged on 8 March 2013 and a preliminary hearing/directions conference was heard on 9 April 2013. As the appellant was technically either one day or six weeks out of time to appeal, an application to appeal out of time was heard. In the light of the circumstances of this case and the confusion that arose in relation to it regarding advice given by ACAT in February, I had no hesitation in allowing his application to succeed. The appeal duly proceeded on 22 April 2013.

1. An originating application was made on 22 May 2012. This was amended by a further application on 3 August 2012. A default judgment dated 12 September 2012 was made and sent out on 17 September 2012. The respondent at first instance and the appellant in the matter before me indicated at no stage had he received any application. He stated that upon returning from overseas and going through his papers he received the default judgment.
2. On 2 November 2012 he applied to set aside the orders as they'd been made in his absence. He further stated that he had paid the applicant for work performed and the applicant Mr Joe Sipeki had kept changing the amount he owed and adding to the costs claimed. The appellant went on to say the amount owed was disputed. The application to set aside the ex parte order was listed for 10am on Wednesday 14 November 2012.
3. The appellant (the applicant in the application to set aside) stated on that day, he rang the tribunal and left a message on an answering machine that he had a flat tyre. He did not attend the tribunal. He indicated that he could have attended after 11, but felt that he did not need to as he had contacted the tribunal. He was unaware of procedure. Interestingly, had he attended, at 11 o'clock, he would have been able to be heard, as the matter had not been reached at that time.
4. Sometime after 11am on 14 November 2012 Registrar James Gralton dismissed the application to set aside as there was no appearance by or on behalf of the appellant.
5. On 17 December 2012 the appellant received the order of 14 November 2012 by Registrar Gralton dismissing his application and he made a further application to set aside the ex parte order. He indicated why he had not attended, he apologised for the inconvenience, and the tribunal on 3 January 2013 sent a notice to both parties indicating the new application to set aside had been set down at 10am on Wednesday 16 January 2013. Those are the facts in relation to the matter leading up to 16 January 2013.
6. I say at this stage I accept the reasoning of Registrar Gralton in dismissing the application of 14 November 2012 when there was no appearance by the appellant. I also accept the reasoning of the registry staff who gave the appellant another chance as a result of his excuse for not turning up.
7. Regarding the hearing date for the application to set aside on 16 January 2013, the appellant gave evidence that on his return to work on 7 January 2013 he was going through his mail, and he saw the notice indicating that he should appear at 10am on Wednesday 16 January 2013 to prosecute his application. He stated he put the application aside with some other important documents, namely bills that he had to pay. Unfortunately, between 7 January and 16 January 2013 it slipped his mind and he did not turn up.
8. The applicant in the substantive proceedings at first instances, Mr Sipeki, who is the respondent to the appeal and also the respondent to the application to set aside, did turn up on 16 January 2013. Registrar Thompson made an order dismissing the application to set aside as again the appellant had not shown up to prosecute his application. In the course of the proceedings he granted costs of $300 to Mr Sipeki, the respondent to the application, for inconvenience and costs of attending. He based this on Mr Sipeki charging as a tradesman approximately $150.00 per hour. The matter was not finalised until after noon on 16 January 2013. Mr Sipeki submitted that the default judgment should be honoured and he was somewhat peeved that the matter had been adjourned on a number of occasions to give the appellant, Mr Munday a chance to have the default judgment overturned. Mr Sipeki did not support Mr Munday's appeal. He felt that Mr Thomson's order and the subsequent orders made by Registrar Morris should be accepted.
9. Mr Munday, who represented himself and his wife in all proceedings before the appeal tribunal and during the two applications to set aside, indicated that the matter had slipped his mind and he had been under considerable pressure as a result of some issues he was having with a Government department. These issues were ongoing and were due in the Federal Court again in July this year. He and his wife also had some emotional issues in relation to some medical procedures which he declined to put on the public record but which could be summarised as not being life threatening or indeed not being physical painful but nevertheless stressful for both he and his wife.
10. I do not believe the detail of the medical issues should be put on the public record as my description above is sufficient. The respondent Mr Sipeki felt that he should be told what they were and I indicated during the hearing on 22 April 2013 that another forum may take a different view but I for one felt that it was suffice to simply summarise in the way I have above these issues which were personal.
11. I also find ,as indicated to both parties on 22 April 2013, that both the application by Mr Sipeki and the defence ultimately attempted to be filed by the appellant, on the face of them appeared to have merit. This is particularly important in terms of a final decision whether to hear a matter or not.
12. Whilst the appeal was not filed until March another attempt to apply to have the ex parte orders set aside was made on 14 February 2013 by Mr Munday. This was rejected by Registrar Morris, who stated "Pursuant to Part 5, Rule 9 of the ACAT Procedural Rules 2009 (No2) I declare (in Rule 9(2)(a)) that I reject this document entitled "application to set aside ex parte order state proceedings dated 14-2-13 and I made this rejection on the basis that its filing constitutes or appears on its face to constitute an abuse of tribunal process (Rule 9 subsection 1) A Morris registrar. Note I consider this abuse of process in that Mr Munday has consistently failed to appear on two separate occasions on his own applications, signed A Morris".
13. On 6 March 2013 a notice was sent out to the parties, stating that an application to set aside the ex parte order in the proceedings was filed by the respondent on 17 December 2012 and was refused in the order of 16th January 2013 and further that, no further applications to set aside the ex parte order in the proceedings can be filed and it was signed by a deputy registrar. This was sent as a result of Mr Morris' decision.
14. I also comment on the fact that Mr Munday also spoke shortly after 16 January 2013 to Mr Thomson and Mr Thomson indicated to him that he was not going to change his decision. Whilst I feel that it was inappropriate for someone to attempt to speak a person who presided over a hearing, it occurred, nothing further turned on it and Mr Munday then took other action as indicated above, unsuccessfully.
15. Mr Munday based his case on the fact that people have a fundamental right to be heard and also that he had a reasonable excuse.
16. The rules in relation to setting aside matters are clear. In the ACAT Act section 79 deals with appeals. Section 79(1) states "this section applies if (a) the tribunal has decided an application (the original application) and (b) the original application was not an appeal from a decision by the tribunal". Section 79(1)(a) has been taken to mean that the tribunal has decided the original application, in other words, the matter has been dealt with by a tribunal in some way or another and decided.
17. In the matter of Kang v R&D Regional Constructions Pty Ltd (2013) ACAT Appeal 2013 ACAT 24 an appeal against Mr Thomson as Registrar setting aside a default judgment was dismissed. It was dismissed on the basis that setting aside a default judgment was setting aside an administrative decision by the tribunal and it could not be said in instances like that that the tribunal had decided an application (being the original application). Accordingly, section 79(1)(a) of the ACAT Act was not satisfied. The tribunal had not decided an original application as the tribunal had not listed the matter for a hearing. It had merely made a default judgment in the registry by means of the actions of the deputy registrar.
18. There is another situation where persons attempt to set aside a judgment and that is setting aside an ex parte order. This is different and section 79(1)(a) certainly applies to that. Ex parte orders are made when a matter actually gets before a member of the Tribunal, be it a registrar in a motions list or a tribunal member actually hearing the matter and one party does not turn up. If it is the applicant, the application is dismissed. If it is the respondent the matter will often be dealt with in favour of the applicant and an order made. The aggrieved party may then apply to set aside the ex parte order. In these situations it can certainly be said that section 79(1)(a) is invoked because a final order has been made and made by a tribunal member or registrar sitting in the tribunal.
19. The test for dealing with these matters is the test in Allesch v Maunz 2000 HCA 40 (2003) CLR 172. This test is also mentioned in Thornthwaite v Commissioner for Social Housing [2012] ACAT 11 at paragraph 43 which states "that test is the standard test in terms of dealing with ex parte matters in applications to aside ex parte matters. The first test is, is there a good reason why the applicant did not turn up at the original hearing. And secondly, if that is the case, is there then a reasonable case? Does the applicant actually have a reasonable case which indicates the matter should be set aside and the case be heard?" Paragraph 44 goes on to say it is a two-pronged test, both are needed to succeed. In the case of Kang this test was put as an alternative in case the tribunal was mistaken in its application of section 79(1)(a) At any rate in this current matter, Mr Munday the appellant, by applying on two occasions to have the default judgment set aside, he took the matter out of the section 79(1)(a) situation that applied in the Kang matter. His application was dealt with by a Registrar on both occasions, in a Tribunal list and ex-parte orders were made.
20. Had Mr Munday turned up on the 14th November, in my view the tribunal would have been at fault if it did not set aside the default judgment. Unless Mr Munday's defence was obviously on the face of it utterly spurious there was no reason why it would not be set aside. It was setting aside an administrative order made by a deputy registrar. The matter deserved to be substantially heard. Indeed, even if it was a rather peculiar defence (and his defence in this case seemed on the face of it reasonable and not peculiar), the fact that Mr Munday had a reasonable excuse for not turning up may well have been sufficient, again on the basis of section 79(1)(a) of the ACAT Act in that it was setting aside a default judgment made by a deputy registrar in the registry.
21. The question in this case is just how many goes can someone have? Mr Munday again sought to have an application to set aside dealt with on 16 January 2013. Mr Sipeki turned up on that occasion. It is my view in this instance, that the rules in Allesch v Maunz as adopted by this tribunal in Thornthwaite should apply. It is the second time the matter has been before a member or registrar of the tribunal in open tribunal. It is the second time the appellant and applicant has not turned up, and on the second occasion Mr Sipeki the respondent to the application and the applicant in the substantive matter has attended.
22. It is my duty to look at both Mr Morris' in chambers order and what Mr Thomson did. I of course have to look at what Mr Thomson did on the basis of in what has been put before me. What has been put before me is effectively what would have been put before a third tribunal hearing had Mr Morris allowed the third application to set aside to go through. In other words I had before me the reasons (which Mr Thomson did not) as to why Mr Munday did not attend. There is nothing wrong with Mr Thomson's order of the 16th as he could do nothing more.
23. When I look at what Mr Morris did, he decided to reject the document as he felt it to be an "abuse" of process because the applicant/appellant had already had one go and not turned up and here he was not turning up a second time and he wanted to have a third go. Whilst I find the wording of Rule number 9 a bit sharp and stark and "abuse" might seem an overly harsh description of what occurred here, it is a common term used in legal proceedings and does legally describe what occurred here. At any rate I can find no fault in what Mr Morris did in terms of rejecting the application.
24. That said, I of course am able to override his order should I be satisfied that it is in the interests of justice to do so. Unfortunately for Mr Munday, there is nothing that persuades me that Mr Morris' order should be overridden. He was apprised of the reason why Mr Munday did not attend on the second occasion and he obviously rejected it. When I look at that reason too I agree that it is not a valid reason. Whilst I am certainly satisfied that both Mr Munday and the respondent appear to have a good case which would be worth hearing, Mr Munday does not get past first base as he did not have a good reason not to attend. The tribunal takes the view that everyone is normally entitled to a second chance and this occurred when Mr Munday was not able to attend the tribunal on 14th November 2012. However, his reason for not attending (it slipped his mind) on his second attempt in January 2013 is not acceptable.
25. I believe that exceptional circumstances would be needed to justify him being given a third chance to apply to set aside a default judgment. Indeed if for some reason he couldn't get to the hearing he could also ring up and conduct his application by phone. The tribunal is very flexible in this regard. I would think a sudden death of an immediate family member or serious injury to someone like an immediate family member or serious injury to himself would be needed to justify a third attempt. To merely have it slip his mind and for the reasons he gave, is not sufficient.
26. We all have various pressures in our lives; family pressures, business pressures, pressures which sometimes involve government agencies and we all operate and continue to operate and abide by our commitments. One would expect someone who was so aggrieved as to apply to set aside a judgment to actually attend and certainly if they were unable to attend on the first occasion due to an unfortunate mishap beyond their control, one would expect them to make a big effort to attend on the second occasion. To merely have it slip your mind during a nine day period is not acceptable and to use the excuses used by Mr Munday is not in my view acceptable.
27. One has to balance his right for a hearing with the right of the other party to have the matter finalised as expeditiously as possible and also the fact that the tribunal's time is not to be unduly wasted. Whilst I find "abuse of process" a rather harsh term in some instances, it does nevertheless encapsulate Mr Munday's third attempt here. He had run out of chances. He was entitled to one further chance, especially as a result of circumstances beyond his control but in terms of not taking up his second chance and especially as he was well aware of the need to attend and indeed put the papers in a pile of papers that had to be attended to immediately and then forgot about it, is not good enough.
28. Accordingly in all the circumstances his appeal to have Mr Thomson's decision and Mr Morris' decision reversed does not succeed.
29. He has also appealed against Mr Thomson's award of costs to Mr Sipeki. I feel Mr Thomson awarded appropriate costs. His reasoning in doing so appeared accurate. In reality having heard from Mr Sipeki I note he is effectively only been compensated $100 per hour rather than the $150 per hour in Mr Thomson's reasoning on the basis that he left his place of employ about half an hour before being due at the tribunal and did not get back until half an hour after the tribunal had finished his matter (i.e three hours not two).
30. There's also clear provision in the ACAT Act and in our rules for a member to award costs/compensation for any inconvenience caused to a party who turns up ready to proceed and the other party does not show up. Accordingly the appellant should pay those costs.
31. I should note that my final order reflects the fact that the collection agencies fees of $130.68 are not claimable as they are merely part and parcel of an applicant attempting to recover his costs. They are akin to someone attempting to recover legal costs which also are not normally claimable in our low cost jurisdiction. Accordingly the judgment that I made reflects this and the figures have been adjusted accordingly.
32. I calculated the interest also on the $447 being the original debt and running from the time of the original debt until the time of the appeal. For the reasons stated above the appeal will be dismissed and an amended order made.

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