Court Procedures Act 2004 ss 14, 15

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

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

Group Konstruct v Pty Ltd v Arrow International Australia Ltd [2012] ACTSC 14

House v R [1936] HCA 40

Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56

Sali v SPC Ltd [1993] HCA 47

1. Appeal dismissed.
2. The appellant pay the tribunal filing fee in the sum of $593.50 by 24 November 2022.

1. This appeal arose from a dispute between Mr Christopher Pye (the appellant) and his father, Mr Kenneth Pye (the respondent), as to whether cash the respondent handed to his son on 11 November 2021 was a gift or a loan and whether the amount was $6,000 or $7,000.
2. The appellant and the respondent were unable to resolve the dispute between themselves. The respondent then sued his son to recover the money.
3. On 20 June 2022, the original tribunal heard Mr Kenneth Pye's claim. On 27 June 2022, it found on the evidence that the cash provided by the respondent to his son was a loan and that the amount was $7,000. It ordered Mr Christopher Pye pay his father $7,000 plus interest.
4. Mr Christopher Pye did not pay. Instead, he appealed from the original tribunal's decision. He appealed on three grounds:
   1. An adjournment was requested on 20 June & agreed upon by both parties as "No evidence" had been provided to the tribunal by either party. SM Lancken refused this and proceeded with the hearing, making his decision with Zero evidence other than hearsay over the phone.
   2. - Witness statements by Julie Rapson and Genel Dutt who were both present at the time of the incident, agreed by Ken Pye during the hearing with [SM] Lancken.
      • - Voicemail file, text exchanges between Ken and involved parties
      • - emails.

At the appeal hearing, Mr Christopher Pye explained that the second ground of appeal was that he was not granted the opportunity to provide this evidence at a later hearing:

3. - I was unfairly and unjustifiably forced to proceed to hearing underprepared to defend myself properly.

- Both parties agreed to adjourn but SM Lancken refused the application.

- A decision was made based off of hear/say when evidence wasn't granted the opportunity to be provided at a later hearing date. (sic)

1. Having regard to the grounds of appeal, which were all claims of procedural unfairness, I was satisfied that the appeal should be dealt with as a review of the original decision pursuant to section 82(1)(b) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act).

1. The first ground of appeal required consideration of the relevant facts and circumstances leading up to the hearing on 20 June 2022 and the original tribunal's reasons for refusing the application for an adjournment.
2. On 22 April 2022, the tribunal conducted a preliminary conference which both parties attended. The tribunal gave directions that Mr Kenneth Pye (the applicant in the original proceeding) file, among other things, a written statement from every witness he intended to call and any documents on which he intended to rely. He was directed to do so by 13 May 2022. Mr Christopher Pye was directed to do likewise by 3 June 2022.
3. On 22 April 2022, the tribunal also ordered the matter be listed for hearing on Monday, 20 June 2022 at 2:00pm.
4. The tribunal provided typed orders, signed and dated by the member who made them. The orders were posted to the applicant and the respondent under a covering letter dated 28 April 2022 which repeated (in bold text) that the matter was listed for hearing on Monday, 20 June 2022 at 2:00pm.
5. On 24 May 2022, Mr Kenneth Pye asked that the hearing be conducted by telephone as he is a sick pensioner with a disability. On 25 May 2022, the tribunal sent an email to Mr Kenneth Pye and Mr Christopher Pye confirming that the hearing had been arranged to be conducted "in person on Monday, 20 June 2022 at 2pm", but would now be conducted by telephone.
6. Neither party filed any documents in response to the orders made on 22 April 2022.
7. On 20 June 2022 at 2pm, the original tribunal telephoned the parties to commence the hearing. Both parties answered the tribunal's call. However, Mr Christopher Pye promptly asked for an adjournment. He said, "for some reason I had 22nd in mind, not the 20th",[1] that he had had surgery on his finger "last weekend"[2] and that he was in the middle of moving house. He said that "in the midst of moving I've lost the paperwork."[3] He also said, "there has been a lot going on in the interim as well, we are back and forth with police after breaches of order".[4]
8. Mr Christopher Pye said he wanted to provide some witness statements to support his case. He agreed he had been given the opportunity to do so, per the orders made on 22 April 2022, and had not done so, but said "that can be sorted very quickly".[5]
9. The Tribunal asked Mr Kenneth Pye for his views about the requested adjournment. The following exchange occurred:

SENIOR MEMBER: I'm going to ask what you say about that, Mr Kenneth Pye.

MR K PYE: Look, I just - I'm a very sick man and to the point of - like I could - as long as any extension is not too far away because I may not have time in the future because I'm very, very ill.

SENIOR MEMBER: So you don't really want it adjourned, is that right, Mr Pye, Kenneth Pye? You would prefer it not to be adjourned.

MR K PYE: I'd prefer it not to be but if the adjournment isn't, you know, it's four or six weeks away, like I can - I would accept that but if it's any longer no, I need it to go ahead today.[6]

1. After hearing from the applicant and the respondent, the tribunal refused the adjournment. It pointed out that both parties had known the matter had been listed for hearing since 28 April 2022 or thereabouts when the typed orders were sent to them. It noted the directions that had been made about the filing of documents and the dates by which they needed to be filed. It noted that Mr Christopher Pye had not filed any witness statements. The tribunal concluded by stating:

Mr Christopher Pye who seeks an adjournment, filed no other documents as a result of that order of the court. He now seeks an adjournment saying he wants to put on other evidence and would prefer that the hearing be put off for another time. The applicant, Mr Kenneth Pye, says he is not well and doesn't particularly want to have an adjournment because he is ill.

On the balance of what's fair between the parties, given that the only witnesses to this dispute are Mr Kenneth Pye and Mr Christopher Pye, I am going to refuse the application for an adjournment and conduct the hearing today.[7]

1. For the purposes of the appeal, in a written submission filed on 30 September 2022 by email under a heading "errors of discretion fact or law", Mr Christopher Pye repeated his claim that the hearing "proceeded against my request of adjournment made on the day which was unopposed by the applicant".
2. At the appeal hearing on 12 October 2022, Mr Christopher Pye said he was "unprepared" and that it was a "murky time with a lot of emotion and hurt." He said that when the tribunal member called him on 20 June 2022 to commence the hearing, he had forgotten the hearing was on that day and was in the middle of moving house.
3. The question on appeal was whether the tribunal erred by not granting the adjournment. In my view, no error is demonstrated.
4. First, the appellant's claim that the adjournment was "agreed" or "unopposed" is not correct. The transcript quoted above makes clear that the respondent preferred the hearing "not to be" adjourned. He was willing to accept a short adjournment, but not if it would be any longer than "four or six weeks away".
5. Second, Mr Kenneth Pye's willingness to agree to a short adjournment does not mean the tribunal erred by not granting it. An important object of the ACAT Act, per section 6(c), is "to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice". That parties seek an adjournment, even by consent, is not by itself a basis to grant it. The question is whether justice cannot be achieved unless the adjournment is granted.
6. I accept that "achieving justice" includes giving parties a fair opportunity to prepare and present their case, but justice is not denied if a party does not take that opportunity or is underprepared for reasons that were within their control.
7. In this case, the tribunal was dealing with a simple dispute about whether a comparatively small sum of cash handed from one person to another was a loan or a gift and how much was handed over.
8. As the tribunal member pointed out, whether to grant an adjournment was a question of "balance of what's fair between the parties".
9. Noting that Mr Christopher Pye had not provided any witness statements and so did not have any witness to call, and that Mr Kenneth Pye did not have any witnesses, the following exchange occurred:

SENIOR MEMBER: So Mr Christopher Pye, in the circumstances where you haven't put on any witness statements why are you prejudiced for this matter going ahead on the telephone today? Why can't we just run this hearing? You can give your evidence, can't you?

MR C PYE: Sorry, yes. We can run it if you'd like. I just - I wasn't - seeing that I haven't provided any information to back up my statement which are - which witness statements.

SENIOR MEMBER: You had an opportunity do that. I'm not going to repeat myself. But in April you were given that opportunity and you haven't taken that opportunity, have you?

MR C PYE: Yeah, look - yeah, I understand that. And as I said, I was - I am sincerely apologising here and if it's my problem, my problem.

1. That Mr Christopher Pye had not provided any witness statements was a problem of his own making. The proposed witnesses were his mother and his partner. Each was readily available for the purpose of preparing a witness statement. He had been on notice since 22 April 2022 about the need for witness statements if he wished to call them as witnesses. There was no suggestion of a reason beyond his control for not providing witness statements.
2. The claim that the original tribunal made its decision "with zero evidence other than hearsay over the phone" is not correct. The (then) applicant, Mr Kenneth Pye, was sworn in as a witness and then gave direct (not hearsay) evidence about what occurred when he handed over money to his son on 11 November 2021.[8] Mr Christopher Pye did likewise.[9]
3. Mr Christopher Pye's reasons for not being prepared for the hearing were unconvincing. There was no explanation as to why surgery to his finger materially prevented his preparation of his case, and it would seem he had materially recovered from the surgery because he was well enough to be moving house. He did not contact the tribunal in advance of the hearing to explain his circumstances or to say he would not be ready for the hearing or to seek an adjournment.
4. At the appeal hearing, Mr Christopher Pye said he had overlooked the hearing on 20 June 2022 and only recalled it when the tribunal called him to commence the hearing. That he had forgotten the date of the hearing was a clear indication of his priorities, especially where, three times, he was told the date of the hearing, namely orally on 22 April 2022, by letter dated 28 April 2022 and by email on 25 May 2022.
5. I accept that unforeseen circumstances beyond a person's control that prevent a person from being able to present their case on a stated date can sometimes require an adjournment of the hearing, but that is not this case. Mr Christopher Pye's lack of preparation and lack of readiness for the hearing were problems within his control and entirely of his own making. The timely administration of justice would collapse if adjournments were granted in such circumstances. I see no error on the part of the original tribunal by not granting an adjournment. Ground 1 fails.

Ground 2: denial of opportunity to provide evidence

1. This ground of appeal is misconceived. Mr Christopher Pye had every opportunity to provide witness statements from the witnesses he wished to call (namely his mother and partner) and the documents upon which he wished to rely (namely printouts of text messages exchanged with his father on 23 November 2021 and voicemail recordings from his father on 23 November 2021). He was given six weeks to provide his evidence, namely by 3 June 2022. There was no suggestion of anything that prevented him from doing so by the due date or at least prior to the hearing on 20 June 2022.
2. All that can be said is that through no one's fault but his own, Mr Christopher Pye had not prepared or provided the evidence on which he wished to rely. In my view, it was appropriate for the tribunal to proceed with the hearing of the matter rather than give Mr Christopher Pye yet more time to provide his evidence. Ground 2 fails.
3. For the purposes of the appeal, Mr Christopher Pye sought to rely upon a witness statement from his mother, Julie Rapson, dated 30 September 2022; a witness statement from his partner, Genel Dutt, dated 28 September 2022 but provided to the Tribunal on 12 October 2022; printouts of a lengthy text exchange between him and his father that occurred on 23 November 2021; and a USB containing 'voicemail' recordings of two messages from his father. In a covering email sent to the tribunal on 11 October 2022, Mr Christopher Pye states that the voicemail recordings were received on 23 November 2021.
4. The witness statements of Ms Rapson and Ms Dutt set out their version of events on 11 November 2021, when Mr Kenneth Pye provided cash to his son, and subsequent events on 23 November 2021 and following.
5. The text exchanges and the voicemail recordings on 23 November 2021 are little more than a barrage of abuse exchanged between Mr Kenneth Pye and Mr Christopher Pye that appears primarily directed to a disagreement about a dog. There were only two text messages which appear to have anything to do with the cash provided on 11 November 2021.
6. The first is from Mr Christopher Pye to his father where he states:

NOTHING HAPPENED TO YOUR FUCKING DOG DAD NOW FUCK OFF.

FUCK ME DEAD! All IS FORGOTTEN IN A MINUTE! YOULL HAVE YOUR MONEY BACK ASAP IVE HAD IT.

1. The second is from Mr Kenneth Pye to his son in reply where he states:

I will be like her in a min and ask for everything back if ya want to talk to me like that Chris when I am trying to find out why my dog went to the vet

Good on you get a loan for the 6 grand Chris I need it as much as you now having to pay for all the help I am not getting cheers son.

1. The voicemail recordings refer primarily to the disagreement about a dog. The only words said by Mr Kenneth Pye which appear to have anything to do with the cash provided on 11 November 2021 are follows:

I tell you what. You can pay the whole fucking seven grand back ... now, fuck you. You're a fucking disgrace.

1. Before turning to what, if anything, should be drawn from the proposed evidence, the first question is whether any of it should be admitted on the appeal. Mr Kenneth Pye opposed the admission of the further evidence and, understandably, had evidence in reply.
2. The principles to be applied regarding the admission of further evidence on appeal are well settled. They are usefully summarised by President Neate in Hurst-Myers v Aulich Civil Law Pty Ltd[10] in which the President drew on the High Court's decision in CDJ v VAJ (No 1)[11] to say that the reception of further evidence on appeal should be "exceptional". He noted Justice Gaudron's view that:

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.[12]

1. President Neate noted the observations of Justices McHugh, Gummow and Callinan, who stated that factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to whether the discretion to admit new evidence should be exercised. He noted their Honours' view that:

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.[13]

1. President Neate concluded by saying that from these authorities:

[I]t 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.[14]

1. I was not persuaded that any of the proposed new evidence should be admitted on the appeal. All of the proposed evidence was available to Mr Christopher Pye from the beginning. There is no suggestion that his mother and partner could not have provided their witness statements well in advance of the hearing on 20 June 2022. Likewise, the text messages and the voicemail recordings were all in Mr Christopher Pye's possession from 23 November 2021. No explanation was given for why the evidence was not provided by the ordered date, namely 3 June 2022. No "exceptional circumstances" were offered as to why I should now, on appeal, admit the evidence.
2. Also, I am not satisfied that the proposed evidence "would have produced a different result if it had been available at the [original hearing]".[15]
3. In their witness statements, Ms Rapson and Ms Dutt give an account of events which is broadly consistent with the account that Mr Christopher Pye gave at the hearing on 20 June 2022, but there is no apparent reason why their version must be preferred to Mr Kenneth Pye's version of what occurred.
4. I make the same observations about the text messages and the voicemail recordings. They say nothing about whether the cash was provided as a loan or a gift. They are inconsistent about whether the amount was $6,000 or $7,000.

1. This ground, in large part, repeated ground 1. On 22 April 2022, the tribunal listed the matter for hearing. It did so approximately two months prior to the hearing date. Mr Christopher Pye attended the directions hearing on 22 April 2022 and was aware of the hearing date from the outset.
2. Whether to grant an adjournment was a discretionary decision for the original tribunal. An appeal tribunal should interfere with a discretionary decision only where there is clear error.[16] In this case, far from being persuaded of any clear error, I agree with the original tribunal's decision to proceed with the hearing notwithstanding Mr Christopher Pye's lack of preparation which was a problem entirely of his own making.
3. Courts and tribunals have repeatedly confirmed that the proper administration of justice requires disputes to be determined in a timely manner.
4. In Sali v SPC Ltd, a decision given in 1993, the High Court dismissed an appeal against a refusal of a lower court to grant an adjournment of a hearing for two weeks. In its reasons for dismissing the appeal, the High Court said:

In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties ... What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.[17]

1. These principles are now well entrenched as part of the case management systems used by courts and tribunals.
2. In Aon Risk Services Australia Ltd v Australian National University, the High Court allowed an appeal against a decision to grant an adjournment of a matter that had been listed for hearing. In Aon, French CJ said:

... there 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.[18]

1. These statements of principle have been acknowledged and followed by the ACT Supreme Court and by this Tribunal.
2. In Group Konstruct v Pty Ltd v Arrow International Australia Ltd, the ACT Supreme Court, per Burns J, stated that the decision in Aon should not be confined to its facts and is "applicable generally to civil litigation".[19] His Honour acknowledged that there needs to be a just resolution of disputes but noted that "speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings."[20]
3. Mr Kenneth Pye was forced to bring proceedings against his son in order to recover his money. A date was set for the hearing. I am not persuaded that the original tribunal erred by not granting an adjournment, applied for at the commencement of the hearing, simply because Mr Christopher Pye was not ready to proceed through no fault of anyone but himself. To have granted the adjournment would have frustrated Mr Kenneth Pye's efforts to recover his money and have been contrary to the timely administration of justice. Ground 3 fails.
4. For these reasons, the appeal must be dismissed.

1. Ordinarily, pursuant to section 10 of the ACAT Act and section 14(1) of the Court Procedures Act 2004, an appellant must pay the tribunal filing fee in advance of the conduct of the hearing. In this case, Mr Christopher Pye requested the fee "be waived or at least be deferred for 90 days"[21] on the grounds it would cause him further financial hardship.
2. The registrar was not persuaded that the fee should be waived but, pursuant to section 15(1) of the Court Procedures Act, deferred payment of the fee until 24 November 2022.
3. The registrar informed Mr Pye of the deferment by letter dated 24 August 2022. He proceeded with his appeal on that basis and the filing fee remains payable by 24 November 2022 notwithstanding my decision to dismiss the appeal. I will order accordingly.

1. Appeal dismissed.
2. The appellant pay the tribunal filing fee in the sum of $593.50 by 24 November 2022.

[1] Transcript of proceeding, 20 June 2022, page 5, line 27

[2] Transcript of proceeding, 20 June 2022, page 5, line 22

[3] Transcript of proceeding, 20 June 2022, page 3, line 14

[4] Transcript of proceeding, 20 June 2022, page 7, lines 45 - 46

[5] Transcript of proceeding, 20 June 2022, page 7, line 11

[6] Transcript of proceeding, 20 June 2022, page 5, line 37 and page 6, line 4

[7] Transcript of proceeding, 20 June 2022, page 9, lines 9 - 18

[8] Transcript of proceeding, 20 June 2022, page 9, line 29 - page 13, line 29

[9] Transcript of proceeding, 20 June 2022, page 13, line 36 - page 26, line 20

[10] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [11]- [30]

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

[12] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [24]

[13] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [25]

[14] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [30]

[15] Hurst-Myers v Aulich Civil Law Pty Ltd [2020] ACAT 56 at [25]

[16] House v R [1936] HCA 40

[17] Sali v SPC Ltd [1993] HCA 47 at [11]

[18] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 at [5]

[19] Group Konstruct v Pty Ltd v Arrow International Australia Ltd [2012] ACTSC 14 at [19]

[20] Group Konstruct v Pty Ltd v Arrow International Australia Ltd [2012] ACTSC 14 at [98]

[21] Request about payment of fees dated 19 August 2022