Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 9, 18, 56, 74, 79, 81, 112, Dictionary

Powers of Attorney Act 2006 s 63

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) rr 8, 14, 22

Cases cited: Chessell & Anor v Reynolds [2018] ACAT 107

Chessell & Anor v Reynolds [2018] ACAT 110

Chessell & Anor v Reynolds [2019] ACAT 20

Commissioner for Social Housing v Williams [2017] ACAT 53

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

GP v McKenzie and Ors [2018] ACAT 96

Hussain & Bilkis v Rahman [2016] ACAT 145

Hussain v Farhmand [2017] ACAT 107

Jago v The District Court of New South Wales & Ors [1989] HCA 46168 CLR 23

Krown Living Pty Ltd v Lando [2016] ACAT 149

Legal Practitioner v Law Society of the ACT [2016] ACTSC 203

Reynolds v Verma & Anor [2019] ACAT 101

Rogers v The Queen [1994] HCA 42

Superal-Wallace v Indypendent Pty Ltd & Anor [2016] ACAT 144

The Legal Practitioner v Council of the Law Society of the Australian Capital Territory (Stephen Stubbs) [2010] ACAT 19

Urbaniak-Bak v Council of the Law Society of the ACT & "RA" [2016] ACAT 156

Verma & Anor v Reynolds (No 2) [2019] ACAT 19

Walls v Coutts [2019] ACAT 104

Texts/Papers cited: Beazley, Tout and Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Butterworths, 2014)

1. The appeal against the decision of Presidential Member Daniel on 15 April 2019 is dismissed.

2. The application for an extension of time to appeal against the decision of Senior Member Lennard on 7 and 14 February 2019 is refused.

3. The application for leave to appeal against orders and directions of the Tribunal on 17 August 2018, 13 September 2018, 15 October 2018, 23 October 2018 and 14 June 2019 is refused.

1. These proceedings concern applications by Patrick Leo Reynolds:

(a) to appeal against a decision by a presidential member of the ACT Civil and Administrative Tribunal refusing to grant him leave to appeal out of time against certain decisions of other members of the Tribunal in relation to proceedings brought against him by Aaron Chessell and Maxine Chessell (the Chessells); and

(b) for the grant of leave to appeal out of time against other orders made by members of the Tribunal in relation to the proceedings brought against Mr Reynolds by the Chessells.

2. The present case is one of three similar proceedings[1] in which Mr Reynolds seeks to overcome orders made by different members of the Tribunal that he pay homeowners, including the Chessells, sums of money in relation to his installation of windows and doors at their homes.

3. On 3 January 2018, the Chessells filed in the Tribunal a civil dispute application against Mr Reynolds and James Quinn arising from the supply and installation by Mr Reynolds (trading as Ardglass Windows) of glazed windows and doors at the Chessells' home. They alleged that the installation and quality of Mr Reynolds' work was to a poor standard and that the windows did not comply with the applicable Australian Standards.

4. The Chessells claimed $17,837.00 in relation to work done at their house by Mr Reynolds, plus amounts for fees, to a total of $18,666.40. The case was not particularly complex or unusual.

5. After a series of hearings before differently constituted Tribunals, and after various orders had been made, the Tribunal as constituted by Senior Member Lennard made orders on 7 February 2019, in summary, that:

1. Mr Reynolds remove all windows and doors installed by him from the Chessells' premises on or before 28 February 2019 (upon which, property in the windows would be vested in Mr Reynolds).

2. If Mr Reynolds failed to comply with Order 1 then the Chessells may remove and dispose of all windows and doors installed by Mr Reynolds at their premises, and Mr Reynolds would pay them compensation in the amount of $4,600.00.

3. Mr Reynolds pay the Chessells the amount of $23,647.00 (being $22,837.00 compensation, the Tribunal filing fee of $150.00 and the Peak Consulting report fee of $660.00) on or before 6 March 2019.

4. If Mr Reynolds failed to comply with Order 1, then he would pay to the Chessells the amount of $25,810.00 on or before 6 March 2019.

6. Following further proceedings, those orders were amended on 14 February 2019 to provide, in summary, that:

1. The Chessells may remove all windows and doors installed by Mr Reynolds at their premises.

2. The Chessells would inform Mr Reynolds in writing of the removal of the windows and doors and make those windows and doors available for collection by Mr Reynolds or his agent for a period of seven days from the date of the written notice.

3. If Mr Reynolds failed to collect the windows and doors in accordance with the notice, the Chessells could dispose of the windows and doors at their discretion.

4. Mr Reynolds pay the Chessells the sum of $25,810.00 on or before 6 March 2019.

7. In an Application for Interim or Other Orders filed on 5 July 2019, Mr Reynolds sought leave to appeal against the orders made on 7 and 14 February 2019 and against orders made by differently constituted Tribunals between 17 August 2018 and 14 June 2019.

(a) a stay of "all orders in this matter;"

(b) the setting aside of all specified orders made by the Tribunal on 17 August 2018, 13 September 2018, 15 October 2018, 23 October 2018, 7 February 2019, 14 February 2019, 15 April 2019 and 14 June 2019;

(c) leave to appeal in relation to those specified orders; and

(d) orders that the three matters XD 22/2018 (the present proceedings), XD 334/2018 and XD 800/2018 be joined.

(a) to dismiss the application for leave to appeal out of time; and

(b) to confirm the original decision(s) of the Tribunal.

10. The proceedings that led to the present applications by Mr Reynolds have a convoluted history, and the way in which they reached this stage has been far from satisfactory.

11. To understand precisely which decisions, orders and directions are the subject of Mr Reynolds' applications, it is necessary to commence by recording the chronology of hearings before, and decisions of, members of the Tribunal.

(a) set out the legal requirements for appeals against decisions of the Tribunal and the criteria to be considered by the Tribunal when deciding whether to grant leave to appeal out of time;

(b) consider whether the Presidential Member made any errors in deciding whether to refuse to grant leave to appeal out of time against certain decisions of other members of the Tribunal; and

(c) consider whether the Tribunal as presently constituted could and should grant leave to appeal out of time against any other orders made by Tribunal members in relation to the proceedings brought by the Chessells against Mr Reynolds.

13. Before turning to those matters, it is appropriate to make some brief observations about the conduct of this stage of the proceedings.

The conduct of the proceedings before the present Tribunal

14. The following observations provide a context for some of the difficulties that arose in identifying and dealing with the parties' submissions.

15. First, since 15 October 2018, Mr Reynolds has conducted the proceedings on his own. Before that date, he had been represented by Eric Polleycutt under a general power of attorney. Mr Polleycutt is not a lawyer. For reasons which are summarised below, the Tribunal ordered that Mr Polleycutt be removed as the representative of Mr Reynolds in this matter and that he must not take any further part in the proceeding.[2]

16. Mr Reynolds appeared on his own at the hearing in relation to the present application. In response to directions made by this Tribunal on 14 June 2019, Mr Reynolds filed in the Tribunal an application for leave to appeal out of time against specified decisions of the Tribunal and written submissions in support of that application comprising:

(a) a typed document of 13 pages (previously filed with Mr Reynolds' Application for Interim or Other Orders on 28 February 2019) which commences with a statement that the Supreme Court is asked to "provide legal determination to assist" the Tribunal, and includes 75 questions (apparently addressed to the Supreme Court) at least 50 of which relate to the Chessells before referring to specific issues raised by Mr Reynolds in relation to the application for leave to appeal out of time (Attachment A);

(b) a typed document of 17 pages concerning questions of law and fact in relation to the Chessells' proceedings as well as to other proceedings of a similar nature brought against Mr Reynolds by different applicants and which are the subject of separate proceedings before the Tribunal as presently constituted (Attachment B);[3]

(c) a typed document of eight pages of submissions concerning the present applications (and the applications in relation to another two proceedings involving other respondents) (Attachment C);

(d) a handwritten document of two pages listing eight decisions of the Tribunal between 17 August 2018 and 14 June 2019 that are subject of the present applications (Attachment D); and

(e) a typed document of five pages in relation to the present applications (Attachment E).

17. Mr Reynolds attended the hearing of his applications on 29 July 2019. The hearing commenced soon after 10:00am and, apart from two short breaks (one at Mr Reynolds' request), the hearing continued until just before 1:00pm. In that period, Mr Reynolds referred to his documents and provided detailed explanations in relation to specified paragraphs of them. He illustrated propositions set out in the documents by reference to particular circumstances or decisions. He answered questions from the Tribunal in relation to some aspects of his submissions. By the time of the luncheon adjournment, he had completed making his submissions.

18. When the hearing resumed at 2:18pm, Mr Reynolds was not in attendance. He was not located on the Tribunal's premises and a telephone message was left on his nominated phone number. The hearing resumed in his absence.[4] During the course of that hearing, a message was delivered that Mr Reynolds had telephoned the Tribunal registry in response to the telephone message, and advised that he was not well and would not be attending. He also indicated that he was aware that the hearing would proceed in his absence.[5]

19. Given that Mr Reynolds had provided extensive documentation in relation to the present applications and had provided supplementary oral submissions and information over a period of almost three hours, and had completed the presentation of his submissions, the Tribunal was content to proceed.

20. Second, at the commencement of the hearing on 29 July 2019, Mr Chessell stated that he had received Attachment E in July 2019, but had not received Mr Reynolds' application or Attachments A, B, C and D. It was not clear why the Chessells had not received those documents. Mr Reynolds checked emails that he said he sent at 9:37pm on 2 July 2019: Email 1 with Attachments A and C, Email 2 with Attachments B and D and the Application for Interim and Other Orders, and Email 3 with Attachment E. Mr Chessell advised that he had not received Emails 1 and 2.[6] He was provided with copies of those documents at the hearing and, during the hearing he followed the explanations and changes provided by Mr Reynolds.[7] After the luncheon adjournment, Mr Chessell made submissions in relation to those issues he described as "relevant."[8] He also made oral submissions which supplemented the Chessells' written submissions filed in response to the Tribunal's directions of 14 June 2019.

21. The Tribunal reserved its decision. These are the reasons for decision in relation to Mr Reynolds' applications.

22. As noted earlier, the Chessells filed their application on 3 January 2018, claiming a total of $18,666.40.

23. On 2 February 2018, the Chessells applied for default judgment, and on 14 March 2018 the Tribunal made orders that Mr Reynolds pay them the sum of $18,666.40.

24. On 2 May 2018, Mr Reynolds filed an application for the order to be set aside on the grounds that he had no knowledge of the hearings. On 22 May 2018, the Tribunal set aside the orders made on 2 February and 14 March 2018. It also ordered the Chessells to file and serve an amended application by 25 May 2018, and the respondents to file and serve a response by 8 June 2018.

25. On 24 May 2018, the Chessells filed their amended application for the same amount, together with documents in support.

26. On 7 June 2018, Mr Quinn filed a response contending that he had been wrongly named in the claim and had was not involved in the matters giving rise to the dispute. On 29 June 2018, Mr Quinn filed an application for the claim against him to be struck out.

27. Mr Reynolds did not file a response by 8 June 2018, as ordered, and had still not done so when Presidential Member McCarthy heard his application on 23 October 2018. Instead, Mr Reynolds (or Mr Polleycutt on his behalf) sent unsigned and undated correspondence and other documents to the Tribunal commenting upon the Chessells' claim and seeking an order that the amended application be struck out as an abuse of process.

28. By a general power of attorney dated 17 August 2018, Mr Reynolds appointed Mr Eric Polleycutt as his attorney in this proceeding.

29. On 17 August 2018 at a directions hearing, Senior Member Lennard made the following orders:

1. By consent James Quinn is removed as a respondent in this matter.

2. Respondent shall provide a power of attorney form by 24 August 2018.

3. This matter is listed for hearing on Friday, 2 November 2018 at 10:00am.

30. Senior Member Lennard also issued directions numbered 4 to 12 in relation to steps to be taken before the hearing including that each party must give to the Tribunal and each other person certain types of documents by nominated dates. They included:

4. The applicants must give to the Tribunal and to each other person, by 14 September 2018:

a) a written statement by every witness who the applicants will call to give evidence at the hearing;

b) any invoices, quotes, receipts, photographs, emails or other material the respondent relies upon.

5. The respondent must tell the Tribunal in writing by 19 September 2018 if they do not receive the applicants' material.

6. The respondent must give to the Tribunal and to each other person, by 12 October 2018:

a) a response setting out the orders the respondent seeks;

b) a written timeline of events;

c) a written statement by every witness who the respondent will call to give evidence at the hearing;

d) any expert's report the respondent will rely on at the hearing;

e) any invoices, quotes, receipts, photographs, emails or other material the respondent relies upon; and

f) the respondent must inform the Tribunal and applicants by 12 October 2018 if they require the applicants' expert witnesses to be available for cross-examination.

7. The applicants must tell the Tribunal in writing by 17 October 2018 if they do not receive the respondent's material.

8. Any subpoenas for documents or other things must be served by 12 October 2018. For interstate service leave first needs to be granted by the Magistrates Court under the Service and Execution of Process Act 1992 (Cth).

31. By amended application dated 11 September 2018, the Chessells increased the amount claimed to $25,000.00. They advised that they would still be submitting their evidence by 14 September 2018 as previously ordered, and therefore contended that the hearing date of 2 November 2018 "should not be affected." They did not alter the basis of their claim.

32. On 13 September 2018, the Tribunal confirmed orders and amended some of the directions made on 17 August 2018:

(a) noting that the hearing listed on Friday 2 November 2018 at 10:00am remained listed (Order 3, see also Direction 10);

(b) extending the date by which the Chessells had to provide their witness statements and other materials from 14 to 19 September 2018 (Direction 4);

(c) extending the date by which Mr Reynolds was to tell the Tribunal if he did not receive the Chessells' material from 19 to 24 September 2018 (Direction 5); and

(d) continuing the direction to Mr Reynolds to provide the Tribunal and the Chessells specified documents by 12 October 2018 (Direction 6).

33. On 15 October 2018, in response to an application from the Chessells arising from Mr Polleycutt's conduct, the Tribunal (comprising Presidential Member Daniel) made the following ex parte order:

1. Mr Eric Polleycutt is removed as the representative of the respondent in this matter and Mr Eric Polleycutt must not take any further part in this proceeding.

34. At that time, the Tribunal gave a summary of the reasons for decision. An edited copy of those reasons was published in writing on 5 November 2018.[9] The Tribunal decided that it was appropriate to hear and determine the application to remove Mr Polleycutt as a representative in the absence of Mr Polleycutt and Mr Reynolds because notice of the hearing was provided both by post and by email, and Mr Polleycutt sent in a written submission on behalf of Mr Reynolds.[10]

35. The Tribunal considered the file generally, the written submissions filed by Mr Polleycutt, the oral evidence and submissions of Mr Chessell, and Mr Polleycutt's oral submissions and demeanour in proceedings before the same Tribunal member on 15 September 2018. By reference to the grounds for removing representatives set out in section 8 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (ACAT Rules), the Tribunal:

(a) was satisfied that Mr Polleycutt does not have sufficient knowledge of the issues in this case to effectively represent Mr Reynolds at the hearing;

(b) had real doubt about whether Mr Polleycutt had authority to represent Mr Reynolds, notwithstanding the power of attorney filed with the Tribunal; and

(c) was satisfied that the conduct of this matter by Mr Polleycutt, on behalf of Mr Reynolds, was "not consistent with" and was "demonstrably counter to" the objects of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).[11]

36. By application dated 9 October 2018, but filed on 17 October 2018, Mr Reynolds sought (in substance) the following orders:

(a) that the orders of the Tribunal made on 17 August 2018 and 15 October 2018 be set aside;

(b) that the "matter be joined with or in the alternative administered and heard at the same time as XD 334/2017 & XD 800/2017;"[12]

(c) that Mr Mark Boyle, Ms Tracey Gramlick, Mr Leigh Wallis and Mr David Fisher be joined as parties to the proceeding;

(d) that Mr Reynolds receive a copy of correspondence between Louise Powley and Mr Boyle to the effect that Camden windows (meaning the kind of windows installed in the applicants' home) "don't meet required standards to be installed in Australia;"

(e) that Mr Reynolds have access to the Chessells' property to inspect and photograph the installed windows;

(f) that the Chessells provide the respondent with written authority permitting the respondent to inspect the building file and relevant certification files of the property where windows were installed including "the block and section numbers of the homes where windows were installed and signed by ALL current registered ACT LEASE HOLDERS on file records;" and

(g) the matter be "listed for directions after suitable timeframe for inspections to occur and/or reports to be compiled."

37. Mr Reynolds filed with his application Attachments A, B, C, D and E. Attachment A concerned proceeding XD 334/2018 in which David and Louise Powley made a claim against the respondent for compensation in terms materially the same as the applicants' claim against the respondent in the present proceedings.[13] Attachment B concerned the Chessells' claim against Mr Reynolds. Attachment C concerned proceeding XD 800/2018 in which Kavita Verma and Will Rees sued Mr Reynolds for compensation in terms materially the same as the Chessells' claim against Mr Reynolds. Attachments D and E were broad ranging submissions in response to all three claims.

38. Mr Reynolds filed interim applications in proceedings XD 334/2018 and XD 800/2018 in materially the same terms as the interim application filed on 17 October 2018 in this proceeding. Attachments A to E were also filed with each of the other applications, presumably on the basis that the different attachments would be relevant, or not, according to the proceeding in issue and because Mr Reynolds had applied in each case for an order that the "matter be joined with or in the alternative administered and heard at the same time" as the other two matters. On 23 October 2018, Presidential Member McCarthy heard the application and the similar applications in proceedings XD 334/2018 and XD 800/2018. Mr Reynolds attended with Mr Polleycutt. So did the Chessells, and the applicants (other than Mr Rees) in each of the other two proceedings.

39. At the end of the hearing, Presidential Member McCarthy made orders to the following effect:

1. Mr Reynolds' application dated 9 October 2018 for an order that the orders of Presidential Member Daniel made on 15 October 2018 is set aside is dismissed.

2. Mr Reynolds' application for orders that Mr Mark Boyle, Ms Tracy Gramlick and Mr Leigh Wallis be joined as parties to the proceeding is dismissed.

3. Mr Reynolds' application for an order that the orders of Senior Member Lennard made on 17 August 2018 and Deputy Legal Registrar Steel made on 13 September 2018 be set aside is dismissed, meaning in particular that the Chessells' amended application dated 24 May 2018 remained listed for hearing on Friday, 2 November 2018 at 10:00am.

4. Mr Reynolds' application for an order that the Chessells give consent for Mr Reynolds to inspect any building file held by the ACT Planning and Land Authority of properties where windows were installed is dismissed.

40. Presidential Member McCarthy said that he would publish his reasons. He did so on 31 October 2018.[14]

41. On 2 November 2018, the substantive matter was heard before Senior Member Lennard. At the end of the hearing she reserved her decision.

42. On 3 December 2018, Mr Reynolds sent to the Tribunal three copies of an email which referred as its subject to three matters to which he was the respondent: "22; 334; 800 / 2018" in two of the emails and "22; 338[sic]; 800 / 2018" in the third. Attached to one email was a document that appeared to be a notice of appeal to the ACT Supreme Court in matter XD 22 of 2018 Chessell & Anor v Reynolds. However, the form was not "Form 5.4 Supreme Court-notice of appeal" made under the Court Procedure Rules 2006 but was headed "Form 5.4 ACAT then Supreme Court-notice of appeal." In that heading and elsewhere, the form had been modified for the purpose of those appeals.

Please see attached the notice of Appeal. Could you please:

2) Provide any procedural requirements to have filing fees remitted in the matter;

3) I think the Appeal is "in time" due to availability of reasons to apply. However, if "timing" an issue please advise of any lateness and any procedural requirements to have reasons submitted and addressed;

4) Not sure if this is a Supreme Court Appeal or first has to obtain ACAT refreral [sic] or initial Appeal processes. If you could advise on the procedure for the parties that would be appreciated, as I have tried to format "in time" as best I can.

44. An officer of the Tribunal registry replied to those emails by email that afternoon. In summary, the email stated that:

(a) an Application for Appeal must be made within 28 days of the decision being made and if Mr Reynolds was outside that period he would need to apply for leave to appeal on an Application for Interim or Other Orders form accompanied by specified information (the nature of the case, the questions involved, and the reasons why leave should be given) and a draft Application for Appeal;

(b) Mr Reynolds had completed the incorrect application form;

(c) a copy of the correct Application for Appeal form and an Application for Interim or Other Orders were attached to the email;

(d) there was a specified fee to file an Application for Appeal, which would not become payable until such time as an application for leave to appeal out of time was granted; and

(e) Mr Reynolds had referenced three different matters and, as these matters were all heard separately, he would need to lodge an Application for Appeal for each individual matter.

45. Mr Reynolds replied by email on 4 December 2018 and attached what he described as "the correct ACAT forms." He stated that the forms of appeal lodged on 3 December 2018, to be attached to those forms, were his "written statement showing the accompanied information." Although his email was not clearly expressed, Mr Reynolds referred to his belief that the fact that the Tribunal had not provided reasons for decisions had "led to the non-compliance with ACAT objectives and the inability of the Tribunal to attend those Applications in a manner a right thinking person might suggest." Having expressed criticism of the Tribunal and stated that appeals "appear the most inexpensive, quick and efficient manner for these matter to be dispensed by the Tribunal in a just fair and timely manner" (whether by leave to the Supreme Court or internally), he asked the Tribunal to identify the "timing" issues.

46. By email to Mr Reynolds dated 25 January 2019, an officer of the Tribunal registry apologised for the delay in responding to his email messages of 4 December 2018 and reiterated that an Application for Appeal must be made not later than 28 days after the day the decision is made. The email continued, "As the decisions were made on 25 October 2018,[15] the Application for Appeal would have had to be lodged on 22 November 2018." Because Mr Reynolds was out of time to lodge the Application for Appeal, he would need to apply for leave to appeal out of time on each file. An Application for Interim or Other Orders was attached for his convenience. Mr Reynolds was advised that the Tribunal was "unable to process your Applications for Appeal until such time as you apply for leave to appeal out of time."

47. On 25 January 2019, a long email from Mr Reynolds' email addressed to the Tribunal and others raised various issues and made wide-ranging criticisms of different aspects of the Tribunal's administration and "discourse."

48. In an email to the Tribunal and others dated 28 January 2019, Mr Chessell referred to the recent email exchanges and asked to be included in any correspondence related to the Chessells' matter. He also noted that there appeared to be no author attributed to the latest email (dated 25 January 2019) and suggested that it could be attributed to Mr Polleycutt but submitted on Mr Reynolds' behalf. Mr Chessell referred to orders made by the Tribunal prohibiting Mr Polleycutt from proceeding any further in the Chessells' matter and suggested that if those orders "continue not to be complied with" he would submit an Application for Interim or Other Orders requesting orders under section 74 of the ACAT Act.

49. In a letter to Mr Reynolds dated 5 February 2019, the Acting Registrar of the Tribunal referred to Mr Reynolds' January 2019 emails in relation to three matters, including the matter involving the Chessells. The Acting Registrar stated that it was "difficult to identify from your emails precisely what you are seeking. I assume you are still asking for clarification on the process, timing and cost of filing an appeal against a decision in the ACAT." She recorded her understanding that Mr Reynolds was waiting for reasons for decision in the matter involving the Chessells (and a reserved decision in another matter) and advised that Mr Reynolds would be notified when the reasons and decision were available.

50. The letter continued to note that information about appeals had been provided to him in previous correspondence on several occasions, most recently in the email dated 25 January 2019, and that no fee for an appeal would be payable until leave to appeal out of time was granted. It reiterated that, as set out in the emails of 25 January 2019 and 3 December 2018, if Mr Reynolds wished to appeal a decision in the ACAT he would need to file an Application for Interim or Other Orders seeking leave to appeal out of time. He was advised that the Tribunal registry "will not take any further action in relation to these proceedings until such an application is received."

51. Senior Member Lennard's decision was handed down on 7 February 2019.[16] As noted at [4] above, it contained orders that Mr Reynolds remove the windows and doors he installed and that he pay the Chessells the amount of $23,647.00. There were also orders for the event that Mr Reynolds failed to comply.

52. On Friday 8 February 2019, an email was sent from Mr Reynolds' email address to the Chessells advising that he would be present at their property on 13 February 2019 to "commence to make good and comply with" the order that he recover the windows and doors. On 9 February 2019, the Chessells sent Mr Reynolds an email saying that 13 February 2019 was not convenient and asking him to suggest another date and time. They also stated that Mr Polleycutt was not to accompany Mr Reynolds to their premises. An email later that day from Mr Reynolds' email address to the Chessells and the Tribunal was unclear in its terms, although it asserted that "The Law compels I am to take possession of the goods." The Chessells replied on 10 February 2019 that until "we have a mutual agreement as to the date and time to remove the windows, we do not give consent to you to enter our premises or home."

53. An email on 11 February 2019 from Mr Reynolds' email address, sent to the Tribunal and others (but not the Chessells), critiqued the proceedings, referred to contacts with police about giving effect to the orders, and asked the Tribunal to:

please consider these public nuisance issues caused by your orders; and proceduraly [sic] advise accordingly if or how they may be addressed in a reasonable and expeditious timeframe without cause of further emotionally, physically and financially disadvantaging me.

54. On 11 February 2019, the Chessells lodged an Application for Interim or Other Orders (followed by an amended application) seeking the stay of Order 1 on the basis that it was unreasonable to expect them to have the windows and doors removed from their home in such a short timeframe. They stated that they were in the process of sourcing new windows and doors based on the orders made on 7 February 2019 and the timeframes to source, make and supply windows and doors would not enable them to be ready by 28 February 2019 to enable their home to be secured. Mr Reynolds had advised them that he would come to their property on 13 February 2019 to remove the windows and doors "without any negotiation with us as to a mutually agreeable time to do so." They asserted that Mr Reynolds was aware of the timeframes required to source, make and supply new windows and doors and, given his level of skill in the building industry, they were not confident in his ability to remove windows and doors without causing further damage. They contended that it was unreasonable to have their home open to the elements and not secure while they sourced new windows and doors. They sought additional orders about the timing and process for replacing windows and doors.

55. The application was listed for consideration on 14 February 2019.

56. On 14 February 2019, following a hearing which Mr Reynolds did not attend, Senior Member Lennard amended the orders of 7 February 2019. As noted at [5] above, the orders were amended to state that the Chessells may remove the windows and make them available for collection for a period of seven days; Mr Reynolds had to pay $25,810.00 by 6 March 2019; and if he did not collect the windows, the Chessells may do with them as they please.

57. In a written statement of reasons for the amended orders, Senior Member Lennard noted that under section 56 of the ACAT Act the Tribunal may amend or set aside a Tribunal order if "extraordinary circumstances make it appropriate to amend or set aside the order." Senior Member Lennard referred to email correspondence between the parties (which included statements that Mr Reynolds was unwell, that he does not have appropriate insurance and that any loss or damage caused by his work would not be his responsibility) and information that the Chessells' home would not be insured for various types of damage once the windows and doors were removed. The reasons also recited that, although it was not convenient for Mr Reynolds to attend on 13 February 2019 because the Chessells were having new carpets fitted on that day, Mr Reynolds attended the property accompanied by Mr Polleycutt on that day. They were refused access by Mrs Chessell and a violent incident occurred in which she was injured. The police were called to the premises. The Chessells had applied to the Magistrates Court for a Personal Protection Order. Senior Member Lennard found that, in "these extraordinary circumstances it is appropriate for the Tribunal to amend the orders made on 7 February 2019 as necessary to ensure that the decision of the Tribunal is given full effect."

58. On 28 February 2019, Mr Reynolds filed an Application for Interim or Other Orders seeking leave to appeal out of time for this matter, alongside matters XD 800/2018 and XD 334/3018. He attached an Application for Appeal to, among other things, stay the proceedings.

59. Following that application, on 8 April 2019 the Chessells also filed an Application for Interim or Other Orders seeking orders that:

(a) Mr Reynolds' application be deemed frivolous, vexatious, lacking in substance and an abuse of process;

(b) the Tribunal refuse to hear the application;

(c) the Tribunal direct Mr Reynolds not to make any further applications or submissions to the Tribunal without leave; and

(d) Mr Reynolds be declared a vexatious litigant.

60. Both applications were heard on 15 April 2019 by Presidential Member Daniel who made the following orders:

1. The respondent's application for an extension of time to appeal the order of 23 October 2018 on XD 22/2018 is refused.

2. The application for interim or other orders filed by the applicants on 8 April 2019 is dismissed.

61. On 2 May 2019, Mr Reynolds filed an Application for Appeal against the orders of 15 April 2019. Appeal file AA 16/2019 was created.

62. On 5 June 2019, the Chessells filed another Application for Interim or Other Orders requesting that Mr Reynolds' Application for Appeal be deemed frivolous, vexatious, lacking in substance and an abuse of process.

63. The matter was listed before me for directions on 14 June 2019. Mr Reynolds made a further amended Application for Appeal on that day.

64. I made directions for the filing of documents, and set down a date for hearing:

(a) Direction 1 was that Mr Reynolds file in the Tribunal by 5 July 2019 an application (if any) for leave to appeal out of time in relation to any of the decisions of the Tribunal listed in the applications for appeal lodged by him on 2 May 2019 and 14 June 2019, which decisions had to be specifically identified in the application for leave to appeal out of time, together with written submissions in support of that application in respect of each decision.

(b) Direction 2 required that, if Mr Reynolds filed an application for leave to appeal out of time in accordance with Direction 1, the Chessells were to provide to him and the Tribunal a written outline of submissions in response to the application, and the orders that the Appeal Tribunal should make.

65. In response to Direction 1, the Application for Interim or Other Orders filed on 5 July 2019 described the orders sought as "Leave to appeal orders suggested as out of time as per attached 'D'." Attachment D listed the following orders and decisions:

(a) orders 1, 3, 4, 7 and 8 made by Senior Member Lennard on 17 August 2018;

(b) orders 1, 3, 4, 5 and 6 made by Deputy Legal Registrar Steel on 13 September 2018;

(c) order 1 made by Presidential Member Daniel on 15 October 2018;

(d) orders 1, 2, 3 and 4 made by Presidential Member McCarthy on 23 October 2018;

(e) orders 1, 2, 3 and 4 made by Senior Member Lennard on 7 February 2019;

(f) orders 1, 2, 3 and 4 made by Senior Member Lennard on 14 February 2019;

(g) orders 1 and 2 made by Presidential Member Daniel on 15 April 2019; and

(h) orders 1 and 2 made by the present Tribunal on 14 June 2019.

66. Mr Reynolds included the following annotations to some of the orders identified for appeal in Attachment D:

(a) the orders of Senior Member Lennard dated 17 August 2018 - order 4 "Not complied with," order 7 "No knowledge of application so can't comply," and order 8 "Not complied with by Applicant;"

(b) orders of Deputy Legal Registrar Steel dated 13 September 2018 - order 4 "Not complied with," order 5 "No knowledge of new application" and order 6 "No knowledge of application;"

(c) orders of Presidential Member McCarthy dated 23 October 2018 - order 3 "as no knowledge of new application."

67. Mr Reynolds insisted that he wanted to appeal the orders listed in Attachment D. He acknowledged that "it's going to come back to me that I didn't comply with the directions setting down timetables for things and all that sort of thing."

68. He sought to explain some of his failure to comply with Tribunal orders by saying that he tried to comply with Order 1 made by Senior Member Lennard and was "refused by the applicant from complying with that order."[17] Also, he was not supplied with the final application until 21 September 2018, so he could not comply with "orders that were set down on a previous application which I had never seen that were set down on those dates."[18]

69. The appeal was heard on 29 July 2019. At the end of the hearing I reserved my decision. This is that decision and the reasons for it.

Characterising the orders appealed against - an overview

70. The orders which Mr Reynolds seeks to appeal out of time, listed at [64] above, can be characterised in broad terms as follows:

(a) The orders and directions made by Senior Member Lennard on 17 August 2018 were procedural, removing one respondent (by consent of the parties) and directing steps to prepare for the hearing of the Chessells' application.

(b) The orders and directions made by Deputy Legal Registrar Steel on 13 September 2018 repeated most of the orders and directions made on 17 August 2018 and extended the dates by which some of the procedural steps were to be taken.

(c) The order made by Presidential Member Daniel on 15 October 2018 was procedural in nature, removing Mr Polleycutt as Mr Reynolds' representative and prohibiting Mr Polleycutt from taking any further part in the proceeding.

(d) The orders made by Presidential Member McCarthy on 23 October 2018 were essentially procedural, dismissing Mr Reynolds' applications to set aside the procedural orders of Senior Member Lennard made on 17 August 2018, Deputy Legal Registrar Steel made on 13 September 2018 and Presidential Member Daniel on 15 October 2018, as well as dismissing an application to join certain persons as parties and dismissing an application for Mr Reynolds to inspect certain files.

(e) The orders made by Senior Member Lennard on 7 February 2019 directly affected the rights of the parties.

(f) The orders made by Senior Member Lennard on 14 February 2019 amended the orders made on 7 February 2019 and directly affected the rights of the parties.

(g) The orders made by Presidential Member Daniel on 15 April 2019 were procedural in nature, refusing Mr Reynolds' application for an extension of time to appeal the orders of Presidential Member McCarthy on 23 October 2018 and dismissing the Chessells' Application for Interim or Other Orders in relation to Mr Reynolds.

(h) The orders made by the present Tribunal on 14 June 2019 were procedural directions for the preparations of the hearing of the present application, formally lodged by Mr Reynolds on 5 July 2019.

71. Mr Reynolds told this Tribunal that he considers that every Tribunal decision has been against him, to his detriment. Consequently, he appeals everything. He does not know if there is any value in appealing the decisions. He said it is very hard to know when to start and when to stop. From day one he has felt disadvantaged. Consequently, he is seeking leave to appeal all of the decisions.[19]

72. That statement illustrates the scattergun approach taken by Mr Reynolds in these proceedings, one consequence of which is the unnecessary time it has taken to hear and decide the matter.

73. When asked why he wanted to appeal against directions 1 and 2 of 14 June 2019, Mr Reynolds said that it was because this Tribunal had "discarded my power of attorney" and had not taken into consideration his legal incapacity.[20] He acknowledged that although he did not comply with the directions, he wanted to appeal them.[21] However, after further exchange with this Tribunal about the utility of appealing those directions, Mr Reynolds suggested removing "those two at the end" (that is, at the end of the list in Attachment D) because "there's not much value to it."[22] That exchange was enough to dispose of the attempt to appeal the directions given by this Tribunal on 14 June 2019 (item (h) above).

74. The scope of Mr Reynolds' application raises a broader legal issue, namely whether (assuming each appeal was within time or leave was granted to appeal out of time) the Tribunal has the power to hear and determine each one of those appeals. In short, there are decisions of the Tribunal, including a decision of a differently constituted Appeal Tribunal delivered after the hearing of these applications, to the effect that the Tribunal has no power to hear appeals in relation to what are described as interlocutory orders or decisions.

75. In Walls v Coutts,[23] the Appeal Tribunal drew on a previous decision of an Appeal Tribunal in GP v McKenzie and Ors[24] (GP) and a Tribunal decision in The Legal Practitioner v Council of the Law Society of the Australian Capital Territory (Stephen Stubbs).[25] Those earlier decisions were to the effect that various sections of the ACAT Act dealing with appeals, when interpreted in the ordinary meaning of the words, could only have referred to a final decision of the initiating application, and that there was no express power to appeal interlocutory decisions.[26] The approach taken in GP was to ask whether the consequence of the order or orders being challenged "finally determine the parties' rights in the principal causes of action."[27] The Appeal Tribunal concluded in GP that the decisions being considered in that case did not formally determine the parties' rights in the principal causes of action (defamation claims) and hence the decisions were interlocutory decisions and no appeal lay from them.[28]

76. The Appeal Tribunal in Walls v Coutts considered in detail whether internal appeals can be made from interlocutory decisions of the Tribunal. It focused on section 79 of the ACAT Act, relevant parts of which provide:

(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.

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

77. Having considered a textbook on appeals,[29] the expressions 'original application' and 'decision' in section 79 of the ACAT Act, the definition of 'application' and 'authorising law' in the Dictionary in that Act, and section 9 (Applications under authorising laws), the Appeal Tribunal concluded that "only final decisions of the originating process can be appealed within the tribunal."[30] The Appeal Tribunal continued:

If 'application' in section 79 is limited to the originating process - then it follows that decisions on every other sort of application are simply not amenable to internal appeal. So, for example, an application for a private hearing, or for interim orders, or for costs are applications in a proceeding and would not be internally appellable. Decisions about how the matter should progress, and how the hearing should be conducted, would be appellable only in the context of an appeal from the final decision on the substantive application. A party dissatisfied with the outcome on such an interlocutory point must take their concerns to the Supreme Court, if an immediate review is sought.[31]

78. The Appeal Tribunal also noted that the other key term in section 79 is "decision." It was not disputed in that case that the accepted meaning of decision (which excludes interlocutory findings or reasons) should be adopted.[32]

[W]e consider that on its correct interpretation section 79 of the ACAT Act permits an internal appeal to be brought from a final decision on an originating process. It needs to be a decision - not merely a reason or ruling on the way to a decision - and it needs to determine the rights of the parties in the substantive application.[33]

80. This matter was not raised by the Chessells, Mr Reynolds or this Tribunal during the hearing of the present application. The fact that it was not raised does not confer on this Tribunal the power to decide appeals against interlocutory orders.

81. On the basis that those decisions correctly state the applicable law, it is apparent that this Tribunal does not have power to hear the applications in respect of most of the orders identified by Mr Reynolds in Attachment D.

82. Apart from the orders made by Senior Member Lennard on 7 and 14 February 2019, none of the orders and directions that are the subject of Mr Reynolds' application finally determined the rights of the parties in the principal cause of action, that is, the Chessells' application filed on 3 January 2018. Most of the orders and directions were procedural in nature. Some of them were made in response to attempts to set aside procedural orders made earlier in the proceedings. They were decisions about how the matter should progress and how the hearing should be conducted.

83. Only the orders on 7 and 14 February 2019 constituted, on their face, final decisions on the originating process. Given that the 14 February 2019 orders were an amended version of the orders dated 7 February 2019, only the orders on 14 February 2019 could be considered final orders. Consequently, only those orders could properly be the subject of an appeal. That does not mean they are the subject of an appeal. That will only occur if leave is granted to appeal out of time.

84. That conclusion does not dispose of these proceedings. At the very least it is necessary to deal with the application for leave to appeal out of time in relation to the final orders made by Senior Member Lennard in February 2019. In addition, given that the legal issue was not raised by or before the parties to these proceedings, it is appropriate to express conclusions in relation to the merits of the case, as argued by the parties, primarily in relation to the decision of Presidential Member Daniel on 15 April 2019.

Applications for leave to appeal out of time - principles

85. As noted earlier, section 79 of the ACAT Act allows a party to appeal a decision made by an original Tribunal on a question of fact or a question of law. Appeals are considered within the Tribunal by an Appeal Tribunal.[34]

86. A notice of appeal must be filed in the Tribunal not later than 28 days after the day the original decision is made.[35] Once time runs out, the party has to apply for leave to appeal out of time. The application for leave to appeal must be accompanied by a draft notice for appeal, and must have a written statement showing the nature of the case, the questions of fact or of law that the person says are involved in the appeal, and the reasons why leave should be given.[36]

87. An application for leave to appeal out of time is not an appeal in itself, and a decision about such an application is not a decision of an Appeal Tribunal. There is no appeal unless leave is granted.[37] As a matter of practice, presidential members are allocated to the Tribunal for the application.

88. 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)[38] (Concerned Citizens), Refshauge J summarised the principles he had set out in an earlier case:[39]

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.

89. That passage has been relied on by the Tribunal in published decisions[40] and oral ex tempore decisions.

90. In essence, the principles require the Tribunal to consider the applicant's explanation of the delay, any prejudice to the other party, the merits of the proposed appeal and whether justice requires the application to be allowed.

The decision on 15 April 2019 - refusing leave to appeal out of time

91. On 15 April 2019, Presidential Member Daniel heard an application by Mr Reynolds for leave to appeal out of time in relation to decisions of other members of the Tribunal in the Chessell proceedings.

92. At the conclusion of the hearing, Presidential Member Daniel ordered that:

The respondent's application for an extension of time to appeal the order of 23 October 2018 on XD 22/2018 is refused

93. Her reasons for decision were delivered orally.

94. On appeal to the Tribunal as presently constituted, the extensive written and oral submissions made by Mr Reynolds did not separately identify specific errors of fact or law in relation to that decision. Rather, the submissions made wide-ranging assertions in relation to the range of Tribunal decisions.

95. It is clear from the transcript of the hearing that Presidential Member Daniel, in making her decision to refuse leave to appeal out of time, had regard to a decision of the Appeal Tribunal that prima facie timeframes have to be respected. However, she stated that the Tribunal should extend time if that is necessary to do justice. In her view, there had to be a good reason why Mr Reynolds did not apply in time to appeal. He also had to show that there was something arguable in his grounds of appeal that would "have an impact in the end."[41]

96. Presidential Member Daniel asked Mr Reynolds why he was "a bit late" in lodging the appeal from Presidential Member McCarthy's decision. Mr Reynolds referred to the removal of his power of attorney, and to his notes about "Lennard's appeal." Mr Reynolds volunteered that "it is likely to be better to go to Lennard," that is, to appeal against the decision of Senior Member Lennard. Presidential Member Daniel appeared to agree, suggesting that it is "probably more productive" for Mr Reynolds to do so because the "stumbling block" that he faced was that Senior Member Lennard conducted a full hearing. Presidential Member Daniel proffered the view that it was difficult to show the connection between the decision of Senior Member Lennard and the decisions by Presidential Member McCarthy not to join the Chessells' matter with other matters and not to set aside the order removing Mr Polleycutt. She suggested that the appeal against Presidential Member McCarthy's decision was "pretty much dead in the water now in terms of getting you anything, because even if you are successful in showing that President McCarthy was wrong, it doesn't mean Senior Member Lennard was. Where you need to focus your attention now is Senior Member Lennard." Mr Reynolds agreed. Presidential Member Daniel decided not to grant leave to appeal out of time against Presidential Member McCarthy's decision because she thought that it was going to be a waste of Mr Reynolds' resources.[42]

97. I am satisfied that in making that decision, Presidential Member Daniel had regard to the extent of the delay in lodging the application to appeal out of time, the need to adhere to timeframes for lodgement of appeals, and the utility of such an appeal proceeding to hearing irrespective of the prospects of success (that is, the merits of the case). Those were the relevant factors to consider in this case and, it would appear, Mr Reynolds accepted them on the day. In the absence of any error of fact or law being demonstrated, I am not persuaded to set aside those orders of Presidential Member Daniel.

(a) the orders made by Presidential Daniel stand; and

(b) the application for leave to appeal the decision of Presidential Member McCarthy having been dismissed, that is not a matter to be dealt with in the present proceedings.

Application for leave to appeal out of time - the decisions in February 2019

99. As noted earlier in these reasons (and highlighted by Presidential Member Daniel on 15 April 2019) the substantive decision that disposed of the Chessells' application is found in orders made by Senior Member Lennard in February 2019. For both legal and practical reasons, it is those orders that are properly the subject of Mr Reynolds' application for leave to appeal out of time.

100. The first orders in this matter were made on 7 February 2019 and the amended, final orders were made on 14 February 2019. Mr Reynolds' application for leave to appeal those orders was filed on 2 July 2019, some four months out of time.

101. In their submissions, the Chessells noted that the Tribunal held in Commissioner for Social Housing v Williams[43] that nine days was a significant delay in submitting an appeal out of time.

102. Mr Reynolds gave a range of explanations for his delay in lodging appeals generally. They appear to fall into three broad categories:

(a) the actions of the Tribunal, including delays in providing written reasons for some decisions and advice given to him about the lodging of appeals;

(b) his lack of capacity to conduct proceedings, including lodging appeals, that resulted from his debilitating illness; and

(c) the action of the Tribunal in denying him the services of Mr Polleycutt as his representative, leaving him without any representation.

103. Those categories were distilled from lengthy written submissions in which Mr Reynolds set out the following explanations for the delay in lodging appeals:

(a) his non-compliance with the law was "forced by ACAT irresponsibly, wilfully carelessly and with no just cause" making decisions without making the "identified reasons available for FOUR MONTHS" (even though the reasons "must be known as ACAT references precedent in reasons to decisions made simultaneously by the member at the same time on same day!") and so "deliberately obfuscates...TO MAKE sure APPEAL is seen an IMPOSSIBILITY without further unreasonable delay; expense; waste of limited public resources; in breach of the ACAT act and its objectives" (errors in original);[44]

(b) his failure to appeal the Tribunal's decisions resulted from "ACAT's administrative incompetence caused by the cost; and time ACAT takes to provide procedural fairness is a waste of public funds as this incompetence is considered peripheral procedural issues that allow ACAT to discriminately refuse addressing those very fundamental failures that caused it's decision to be made ERRORS OF LAW;"[45]

(c) the Tribunal advised Mr Reynolds that the filing of the intended appeal "was not possible without reasons for the decision being completely addressed as to its unlawful manner and or mis-understanding of the facts before the decision maker;"[46]

(d) "in direct compliance with the Tribunals lawful obligations to assist in filing" Mr Reynolds was advised that any reasons for decision were "capable of being delayed for up to and over three (3) months" (and, he contended, "no decision of the Tribunal is administratively ever going to be possible to appeal in a compliant manner";)[47]

(e) Mr Reynolds was advised to file an Application for Interim or Other Orders as "a form of appeal to enable the Tribunal to circumvent and decision makers actions to prevent an appeal occurring" and give him capacity, so that he would "automatically be 'in time' for the filing of an appeal to be valid if and when a decision was ever going to be available;"[48]

(f) The Tribunal's actions in the matter have been "a waste of the public resources and time."[49] Mr Reynolds would not be able to settle anything without knowing what the arguments are, and setting the matter down before knowing the issues to be addressed would be a waste of time; and

(g) Mr Reynolds is suffering from a debilitating illness and is recorded on file by a Presidential Member of the Tribunal as being "'legally incompetent' to provide any form of legal reliability to his legal affairs," which circumstances were ignored by the Tribunal to effect prejudice against Mr Reynolds by removing "any form of assistance" (principally his power of attorney).[50]

104. In Attachment C, Mr Reynolds included the following summary of his submissions on this point:[51]

Explanation for delaying; and what action was taken to address the potential for out of time;

1. Why the default occurred; ACAT administrations; ACAT false and misleading statements (confusion) in hearings cause of material error in Law fact and process;
2. If there is good reason for default: ACAT does not have the procedural ability to have filed any Appeal "in time" not preapproved by their meeting their legislative guidelines to allow anyone to Appeal.
3. The Appellant has taken and followed every echelon of possibility to have the Appeals and errors addressed in a quick timely and efficient manner;
4. Suffering from Debilitating illness; Clearly ACAT's own rulings and comments in hearing is that the Appellant has a sever legal disability that precludes ACAT allowing him his legal rights; Further members have deposed "surprise the Appellant can function at the most basic level given the round about ACAT have put him through"
5. Not simply ignoring direction; At no time has any direction been ignored. ACAT in making directions ignoring the facts and consequences on the file, have made if not deliberate in reality compliance is impossible. I.E service; recording of information on file; no decision is made with any reasons

105. When asked by this Tribunal why he had taken so long to appeal against the substantive decisions of Senior Member Lennard on 7 and 14 February 2019, Mr Reynolds replied:

Because we were going through each and every individual appeal in process. Well the simple fact is that we never had that claim.[52]

Because we were going through the other appeal process at that stage and I don't know. It's all set out in these attachments and everything else why it's there.[53]

106. It seems surprising that the decisions of most material significance to Mr Reynolds were the decisions which he took so long to attempt to appeal, particularly when it is noted that the following exchange occurred at the hearing by Presidential Member Daniel of the application for leave to appeal out of time on 15 April 2019:[54]

PRESIDENTIAL MEMBER: So this application for an extension of time, is that about wanting an extension of time to appeal President McCarthy's decision, or an extension of time to appeal the decision of Senior Member Lennard?

MR REYNOLDS: Okay. So this was initially filed as an appeal against Mr McCarthy's decisions, but if this doesn't apply to Senior Member Lennard's decisions of seven February we will be appealing those individually, separately, and also the decisions made on 14 February as well, so there was a follow-on hearing. So those are going to be out of date as well at this stage, so ---

PRESIDENTIAL MEMBER: Wouldn't it be, you know, quicker and simpler to just appeal Senior Member Lennard's decision if you think she's got it wrong?

PRESIDENTIAL MEMBER: Because President McCarthy's decision doesn't matter if Senior Member Lennard got the decision right in the end. It doesn't really matter about President McCarthy making a wrong judgement call if in the end Senior Member Lennard got the answer right. So in terms of, you know, reducing your stress and focusing on what's important, wouldn't you just focus on the main game?

PRESIDENTIAL MEMBER: So do you think that Senior Member Lennard got the decision wrong?

PRESIDENTIAL MEMBER: Okay, and you haven't filed an appeal from her decision yet.

MR REYNOLDS: No, and since then, I've been stressed out.

MR REYNOLDS: ... The orders and the - we got copies of transcripts from the thing and there are a multitude of reasons why her decisions are wrong.

PRESIDENTIAL MEMBER: ... but for the transcript, I should say I got an application by Mr Reynolds for an extension of time to appeal from the decisions of President McCarthy on 23 October.

But your foreshadowing there will be an application for an appeal from the orders of Senior Member Lennard, and of course that's out of time now isn't it?

MR REYNOLDS: There will be an application for an extension of time on that due to medical incapacity to formulate anything for court proceedings.

107. Later in the hearing, at the time when Presidential Member Daniel was ruling on whether to grant leave to appeal out of time against Presidential Member McCarthy's decision, the following exchange occurred:[55]

PRESIDENTIAL MEMBER: ... Where you need to focus your attention now is Senior Member Lennard.

PRESIDENTIAL MEMBER: ... I think that you're better off in this matter going to the front counter, lodging an application to appeal from Senior Member Lennard and attaching to that what you think the grounds of appeal are, the errors that made a real difference, and what your explanation is for whites taking you an extra month or six weeks to lodge that appeal, and will probably back to look at that. That's my feeling of it.

(a) Mr Reynolds saying that Senior Member Lennard's decision was "absolutely" wrong and that there were "a multitude of reasons why her decisions are wrong;"

(b) Mr Reynolds saying that "we will be appealing" the decisions made on 7 and 14 February 2019;

(c) Mr Reynolds saying that there would be an application for an extension of time as a result of "medical incapacity to formulate anything for court proceedings" (apparently because he had been "stressed out"); and

(d) Presidential Member Daniel urging Mr Reynolds to go to the Tribunal's registry counter and lodge an application to appeal (attaching the grounds of appeal showing the "errors that made a real difference" and the explanation for taking the extra time to lodge that appeal),

it was almost 12 weeks between 15 April and 5 July 2019 (including the directions hearing on 14 June 2019) before Mr Reynolds made his application that included (but was not confined to) an application to appeal against those decisions.

109. The Chessells submitted that Mr Reynolds provided no explanation at all why there has been such a significant delay bringing this submission before the Tribunal.

110. Because Mr Reynolds did not specify any particular reason or reasons for his delay in bringing an Application for Appeal against Senior Member Lennard's decisions of February 2019, it is appropriate to consider whether his more general reasons might provide some justification for the delay.

111. As noted above, Mr Reynolds seems to attribute the delay in lodging appeals to actions taken by the Tribunal. His allegations about the Tribunals' actions were set out length in Attachments A, B, C and E and are summarised at [102] and [103] above. Much of his language was, to say the least, intemperate as well as confusing and at times incomprehensible. Rather than repeat in detail his written submissions (as clarified and amplified by his oral submissions), it is enough to attempt to summarise them.

112. Mr Reynolds submitted that, although an appeal must be made within 28 days of a decision, it might take three months (that is, longer than the appeal period) to receive the Tribunal's reasons for that decision. He indicated that he had spoken to Tribunal registry staff about the matter. In response to suggestions from this Tribunal that they might have told him that he could appeal as soon as the order was made, he replied "No." When it was put to him that sometimes people lodge an appeal against orders and amend their appeal later in light of the reasons for decision, he responded "Never told that. Never. I can honestly say that."[56] He persisted to submit that he could not appeal against the numerous orders made in the history of these proceedings without knowing the member's reasoning for each order or set of orders. He concluded "I was never told that you can put in an appeal - that you can say, well, we'll amend it then at the time."[57]

113. Careful consideration of the documentary evidence in these proceedings and the applicable law shows that Mr Reynolds' submissions (and in some cases allegations) are ill informed, incorrect and without legal foundation. In other words, they are wrong in fact and law.

114. For example, Mr Reynolds described the chronology around the lodging of his appeal against the orders of Presidential Member McCarthy made on 23 October 2018. His key statements were:[58]

(a) "we filed appeal notices on 4 December 2018;"

(b) "They were out of time at that stage, but they were three or four days out of time;"

(c) "then we had to apply for leave out of time, which took more time, and then we had to apply for relief of fees and all that sort of thing;"

(d) "They were eventually filed, completed on 28 February but ... the original application has been lodged and stamped on 4 December;" and

(e) "it took obviously until April before those matters were heard."

115. That chronology illustrates that he was aware that, by reason of his own actions, his Application for Appeal was out of time.

116. There are three reasons why Mr Reynolds cannot succeed in reliance on those submissions. First, the Tribunal was under no legal obligation to assist him to lodge an appeal. The ACAT Act provides that a party to an original application before the Tribunal may, by application, appeal the decision to the Tribunal on a question of fact or law.[59] It is for an appellant to lodge a notice of appeal with the information required not later than 28 days after the date of the decision appealed from was made.[60]

117. Second, the Tribunal Registrar has the function of taking "reasonably practical steps to help a person make an application, as the registrar considers appropriate."[61] Such steps might include helping a person to put an application in writing.[62] In this case, the Tribunal registry attempted to assist Mr Reynolds by providing information in response to his requests sent by email. For example, the communications by email and letter from the Tribunal registry in December 2018 and January 2019 (referred to at [43] to [49] above) set out clearly what Mr Reynolds was required to do to seek leave to appeal out of time and to make an Application for Appeal in the proper form. The appropriate documentation was attached to that correspondence. There is no merit in Mr Reynolds' submissions to the effect that somehow the actions of the Tribunal were a reason for his delay in lodging an appeal or an application to appeal out of time.

118. Third, it is possible to lodge an Application for Appeal against a decision within the 28 day period without receiving reasons for the decision. That option is apparent from the legislative scheme and the way in which that scheme is administered by the Tribunal.

119. The ACAT Act sets out the process for the Tribunal to provide a party to an application with the Tribunal's orders and reasons for making the orders. The key components of the scheme are set out below.[63]

120. The Tribunal may make an order for an application.[64] An order takes effect:

(a) on the day the order is made;[65] or

(b) if the Tribunal so orders, on an earlier or later date and at an earlier or later time.[66]

121. If the Tribunal makes an order on an application, the Tribunal must:

(a) make and keep a written record of the details of the order; and

(b) give each party a copy of the order within seven days after the Tribunal makes the order.[67]

122. Where a party has not received a statement of reasons within the 28 days after the decision (in this case the relevant orders) was made:

(a) the notice of appeal can set out briefly the appellant's grounds for appeal, and state that the person is awaiting reasons for decision and may amend their application subsequently; or

(b) the party might apply to the Tribunal for an extension of time in which to appeal on the basis that written reasons have been sought but not yet received,[68] something that Mr Reynolds purported to do on 13 December 2018 in relation to the decision on 7 December 2018 in other similar proceedings.[69]

123. Whether it is made before or after the 28 days since a decision was made, an application for leave to appeal out of time must be accompanied by a written statement showing the nature of the case, the questions involved and the reasons why leave should be granted.[70]

124. I am not satisfied that the submissions made by Mr Reynolds (and the, at times, unfounded and offensive allegations made by him) provide any factual or legal basis for the lengthy delay in appealing against the orders made by Senior Member Lennard in February 2019.

Reasons for delay - Mr Reynolds' incapacity to conduct his case

125. As noted earlier, Mr Reynolds submitted that the Tribunal had observed or determined that he lacked capacity to conduct proceedings before the Tribunal, yet it made little or no allowance for his circumstances in the way it treated him. In particular, Mr Reynolds relied on:

(a) a statement by Senior Member Lennard on 14 February 2019 to the effect that the Tribunal was amazed Mr Reynolds had any capacity to function on even a basic level under the circumstances of the administration of these matters before the Tribunal; and

(b) him "suffering from debilitating illness" as recorded in a finding by Presidential Member Daniel in relation to the Chessell matter that Mr Reynolds is "legally incompetent" to provide "any form of legal reliability to his legal affairs."[71]

126. Mr Reynolds said that he agreed with Senior Member Lennard's assessment of him and said, "I'm amazed I can function as well."[72]

127. Mr Chessell submitted that there was no evidence that the Tribunal has made any determination about Mr Reynolds' legal incapacity.[73] Mr Chessell referred to an email dated 12 October 2018, apparently from Mr Reynolds addressed to an officer of the Tribunal registry and various others, which included the statement "I AGREE, I am attending the initial application under a severe and debilitating incapacity." Mr Chessell noted that Mr Reynolds did not say what the "severe and debilitating incapacity" was, and that (despite any such incapacity) it was Mr Reynolds who was bringing the current proceedings.[74]

128. To assess the accuracy and potential relevance of the statements attributed to Senior Member Lennard and Presidential Member Daniel, and hence their relevance to the present applications, this Tribunal has considered those statements in their respective contexts.

129. On 14 February 2019, Senior Member Lennard was hearing an application in relation to orders she had made one week earlier against Mr Reynolds in separate proceedings.[75] At the start of the hearing, Senior Member Lennard recorded that the Tribunal had received late on the previous afternoon an email from Mr Reynolds and an attached medical certificate saying that he was unwell and could not participate in the hearing that day. She decided to proceed with the hearing in his absence. In the course of that hearing she noted that the two parties could make an agreement and continued "I wish Mr Reynolds was here, because I wanted to say to him in even clearer terms that I've said on previous occasions that the sooner he cuts all ties with Mr Polleycutt, the sooner... [t]his will be resolved. And that is clearly a difficulty... I don't know why he is so reliant on him". Senior Member Lennard then stated in relation to Mr Reynolds, "I thought he did a pretty good job by himself of explaining what was happening."[76] There was some discussion then about protection orders being sought against both Mr Polleycutt and Mr Reynolds by the Chessells and how enforcement proceedings against Mr Reynolds might proceed in the Magistrates Court. Senior Member Lennard expressed the view that "one of the saddest points of this" is that it would have "all been settled by negotiation if Mr Polleycutt hadn't got involved" and if Mr Reynolds had "decent legal advice." Her second point was that the matter has "now gone on so long, and Mr Reynolds has become unwell, and I think he is almost in a mental state of unable to function."[77]

130. Those observations do not constitute a finding by the Tribunal that Mr Reynolds lacks legal capacity to conduct his proceedings. Rather, they reflect the assessment of Senior Member Lennard at that time of the effect of the proceedings on Mr Reynolds. What emerges from those observations, is that Mr Reynolds did a "pretty good job" in representing himself and that the strain of proceedings that could otherwise have been settled by negotiation was exacerbated by Mr Polleycutt's involvement.

131. The second statement referred to by Mr Reynolds has its genesis in the written reasons for a decision by Presidential Member Daniel on 5 November 2018 in relation to an application to have Mr Polleycutt removed as Mr Reynolds' representative. In deciding that it was appropriate to remove Mr Polleycutt, Presidential Member Daniel wrote:[78]

17. Turning to the next factor in section 8(3), I have a real doubt as to whether Mr Polleycutt has authority to represent Mr Reynolds, notwithstanding the power of attorney filed with the Tribunal.

18. This is due to what may be a legal incapacity of either Mr Polleycutt or Mr Reynolds, or both, which might be inferred from the content of the email correspondence.

19. The existence of a legal incapacity seems to be acknowledged on the first page of the most recent email[79] to the Tribunal, where the author 'agrees' he is attending the application under "severe and debilitating incapacity" but does not have the funds to pay for representation. That email is unsigned but I take it to be drafted by Mr Polleycutt, this is because on 11 September Mr Polleycutt explained to me that he sent emails from Mr Reynolds' email address. Insofar as the email suggests that Mr Reynolds lacks capacity to manage his own legal affairs, this would have the effect of invalidating the power of attorney relied upon to provide authority to Mr Polleycutt in this matter. There is however no medical or other evidence that Mr Reynolds is suffering from a legal disability.

20. Irrespective of that issue, the frequency and content of the correspondence on the file sent by Mr Polleycutt suggests that, although he is familiar with legal phrases and processes, he may be a person with impaired decision making ability. Under section 63 of the Powers of Attorney Act 2006, a power of attorney is revoked when an attorney becomes a person with impaired decision-making ability.[80]

21. It is a long bow to draw to infer from the content of a single piece of correspondence that the author is not legally competent. Many self-represented litigants and non-lawyer representatives are unskilled in the law and upset to be involved in litigation, and their correspondence reflects their distress and confusion. Nonetheless, such persons are entitled to represent themselves or their principal, and it is the responsibility of the Tribunal to assist them to put their case as best they can. However, the frequency, subject matter, tone and content of the correspondence sent by Mr Polleycutt on behalf of Mr Reynolds in this matter falls into an entirely different class.

22. For these reasons, I have real doubt that Mr Polleycutt is currently authorised by the power of attorney relied upon in this matter.

132. Those reasons for decision do not constitute a finding that Mr Reynolds lacks legal capacity. As Presidential Member Daniel noted, there was no medical or other evidence that Mr Reynolds is suffering from a legal disability and it was at least open to find that it was Mr Polleycutt, not Mr Reynolds, who was not legally competent.

133. That conclusion is consistent with Presidential Member Daniel's statement in a hearing in other proceedings on 16 October 2018 that it might be that Mr Polleycutt "is lacking decision-making ability himself."[81]

134. The difficulty of making firm conclusions based on emails is complicated by the uncertainty of the authorship of some of them sent to the Tribunal and parties. Mr Polleycutt may have written at least some of them. Mr Reynolds did not seek to distance himself from Mr Polleycutt. However, he clearly stated that, although he obtains assistance from "various people," his email accounts "are mine" and anything sent from his email accounts "irrespective of who the title is from, have been agreed by me."[82]

135. In those circumstances and for those reasons, the submissions made by Mr Reynolds based on the statements by Senior Member Lennard and Presidential Member Daniel must fail.

136. There is also a positive reason why the submission must fail. As noted earlier, Mr Reynolds attended the hearing of his applications on 29 July 2019. The hearing commenced soon after 10:00am and, apart from two short breaks, the hearing continued until just before 1:00pm. Early in the hearing, Mr Reynolds said "I've got some clarifications I want to go through, if that's all right, first."[83] In that period, Mr Reynolds referred to his documents and provided detailed explanations in relation to specified paragraphs of them. He illustrated propositions set out in the documents by reference to particular circumstances or decisions. He answered questions from the Tribunal in relation to some aspects of his submissions. He identified typographical errors and spelling mistakes in his written submissions. By the time of the luncheon adjournment, he had completed making his submissions.

137. There is no doubt that Mr Reynolds has exhibited symptoms of stress at various stages of the proceedings. For example, at the hearing before Presidential Member Daniel on 15 April 2019, Mr Reynolds said that he was suffering "extreme stress" and that he was on medication for high blood pressure among other things. He expressly denied that he should not be at the hearing, but said that his doctor had advised that if Mr Reynolds was willing to go forward with the hearing, it could cause him extreme stress.[84] Later in those proceedings he foreshadowed an application for an extension of time "due to medical incapacity to formulate anything for court proceedings." He advised the Presidential Member that "I've been able to function for everything outside of court, but as soon as court proceedings come up and as soon as the legislation - and I have to sit down and tried and concentrate on something at that sort of level. I can't do it, I can't do it."[85]

138. To paraphrase what he told this Tribunal, Mr Reynolds became "seriously stressed" and struggled to speak in proceedings such as this and to put the case that is in his head. "Because of that I don't deliver what I want to say. So I can't tell you the case I want to produce."[86]

139. However, Mr Reynolds clearly explained aspects of his submission to this Tribunal on 29 July 2019. He said "my articulation probably isn't that articulate, let's put it that way. I'm trying my best. That's why I wrote all of this down."[87]

140. The physical and emotional impact of the proceedings on both parties was evident to, and acknowledged by, the Tribunal. For example, in the hearing before Senior Member Lennard on 2 November 2018, Mr Reynolds indicated that he was unwell and he was excused from the hearing for a short break. The Tribunal then checked that he was able to continue in the hearing.[88]

141. Later in that hearing, the bases for the parties' emotional states were put succinctly by:

(a) Mr Chessell "This is so emotive to us. ... This is our house;" and

(b) Mr Reynolds "This is my life."[89]

142. Senior Member Lennard acknowledged that "this is emotional" and explained that, without being "disdainful or disrespecting or dismissive of the extreme emotion that I know each party is under," if she took on their emotions she could not do her job. She was "trying to get to the real issues to make a real decision based on the proper evidence," in circumstances where there was "that red tide of unhappiness rising up."[90]

143. The obstacles faced by Mr Reynolds in prosecuting his case have proved to be significant, but they are obstacles faced by many self-represented parties in proceedings before the Tribunal. Indeed, in the course of the hearing on 29 July 2019, Mr Chessell said "I'm stressed every time I come here."[91] He continued later in the proceedings to say "I accept that he's stressed, sure. As you said, pretty much every self-represented litigant is stressed, out of their depth, don't understand things. I think that's just the nature of the beast. ... But to claim that he is (sic - has) a legal and debilitating [in]capacity, I think, is a very long bow to draw."[92]

144. To the extent that it was able to do so appropriately, the Tribunal at each stage of the proceedings attempted to assist Mr Reynolds to proceed at an appropriate pace and have the opportunity to put all relevant material and submissions to the Tribunal.

145. Having read the transcript of proceedings of the hearing before Senior Member Lennard on 2 November 2018 and having observed Mr Reynolds in hearings before this Tribunal, I am satisfied that Mr Reynolds was capable of conducting, and did conduct, his case in an appropriate manner.[93]

146. Despite that, it was clear at the hearing of these applications that Mr Reynolds had difficulty understanding precisely the nature of the applications presently before the Tribunal. Basically, he considers that the windows that he installed at the Chessells' house were compliant with relevant standards. There had never been any leakage into any of the houses where he has installed windows. He said that he has never had call-backs in relation to his work. He considers that the Chessells just want money back and to keep the windows for nothing.[94]

147. Mr Reynolds' assessment might provide an additional explanation of his persistence in pursuing every possible procedural remedy. He put it more fully in various statements in the hearing before Senior Member Lennard about the quality of the glass used in the windows and doors he imported and installed.[95] Towards the end of that hearing he stated that the windows had been imported into Australia long before he started his business. The windows were installed in new homes and existing homes.[96] As he put it, "What I can't understand still to this day the windows are perfectly good, the installation may not have been perfect."[97]

148. Those statements also illustrate that Mr Reynolds had the capacity to conduct the proceedings.

149. Related to the submissions about his capacity to conduct the proceedings were Mr Reynolds' submissions that he was denied representation because his support person (Mr Polleycutt) had been removed from the proceedings by the Tribunal. There were two aspects to this submission.

(a) the Tribunal had incorrectly accepted the power of attorney on behalf of other parties but had refused Mr Reynolds' power of attorney granted to Mr Polleycutt; and

(b) without the assistance of Mr Polleycutt, Mr Reynolds was unable to be represented at the hearings before the Tribunal.

150. Mr Reynolds also made submissions to the effect that the Tribunal's removal of Mr Polleycutt as his representative prevented Mr Polleycutt from assisting Mr Reynolds.[98]

• 151. Mr Reynolds also submitted that in some way the Tribunal had foreshadowed the removal of Mr Polleycutt as his representative before any application was made, and that accordingly the subsequent assessment of the application for his removal was not fair.[99]

152. The Chessells made submissions in relation to both aspects of Mr Reynolds' submission. First, Mr Chessell described as "just nonsense" Mr Reynolds' claims that he has been precluded from being represented at the Tribunal by the removal of Mr Polleycutt as his representative. In Mr Chessell's submission, Mr Polleycutt was removed as Mr Reynolds' representative for several reasons, and there are no orders in place that prevent Mr Reynolds from obtaining another representative. He observed that it was "quite obvious" from what Mr Reynolds said at the hearing and from his written submissions that Mr Polleycutt was still helping Mr Reynolds, including by drafting his submissions. He submitted that if, despite the Tribunals advising him to seek competent legal assistance, Mr Reynolds persisted in engaging with Mr Polleycutt as his "representative," then "that's his own doing, his own decision, and it's not prejudicial towards him."[100] Mr Chessell went on to submit that Mr Polleycutt's representation of Mr Reynolds "was not to Mr Reynolds' advantage at all" because, while Mr Polleycutt was representing Mr Reynolds, Mr Reynolds did not comply with orders or directions and did not supply any evidence for the final hearing. In the Chessells' submission, the removal of Mr Polleycutt was in no way prejudicial to Mr Reynolds.[101]

153. Mr Chessell also refuted any claim by Mr Reynolds that the Tribunal had directed that Mr Polleycutt be removed as a potential witness for Mr Reynolds.[102]

154. Second, Mr Chessell noted that Presidential Member Daniel had asked Mr Reynolds why he had not obtained legal advice and why he was still relying on Mr Polleycutt. In his submission, Mr Reynolds had not provided any good reason why he had not done anything. Mr Chessell continued:

The fact that he's made a bad decision in terms of either not going and getting proper legal advice is a decision of his own making and that is not prejudicial to him in any way. That's his own prejudice against himself. It's not prejudice of the tribunal and it's not prejudice from us. Just because you make a bad decision doesn't mean it's prejudicial.[103]

155. I am satisfied that Mr Reynolds' submissions about his lack of representation should not be adopted. The first part of Mr Reynolds' submission implies that Mr Polleycutt was removed because of some flaw in the power of attorney, and that the flaw could be remedied by a subsequent power of attorney (as shown to the Tribunal as presently constituted on 14 June 2019). That is not correct. Mr Polleycutt was removed as Mr Reynolds' representative because Presidential Member Daniel was satisfied, by reference to section 8 of the ACAT Rules that he should be removed. The written reasons for that decision were published on 5 November 2018.[104] They state clearly that the Tribunal:

(a) was satisfied that Mr Polleycutt does not have sufficient knowledge of the issues in this case to effectively represent Mr Reynolds at the hearing;

(b) had real doubt about whether Mr Polleycutt had authority to represent Mr Reynolds, notwithstanding the power of attorney filed with the Tribunal; and

(c) was satisfied that the conduct of this matter by Mr Polleycutt, on behalf of Mr Reynolds, was "not consistent with" and was "demonstrably counter to" the objects of the ACAT Act.[105]

When Mr Reynolds sought to have that decision set aside, Presidential Member McCarthy dismissed that application.

156. The second part of Mr Reynolds' submission is also flawed. The Tribunal's orders in relation to Mr Polleycutt do not prevent Mr Reynolds from being represented by some other person, preferably a legal practitioner. Indeed, the Tribunal has suggested on a number of occasions that he obtain professional advice in relation to these proceedings. For example, at the hearing on 15 April 2019, Presidential Member Daniel suggested that Mr Reynolds go to Legal Aid or the Pro-Bono Clearing House. She said that there are a number of organisations that could give him competent legal advice and who could help him make sense of the Tribunal's decisions and where to "put your energy." That might "remove a lot of stress," although she cautioned that he might not be happy with the "competent and proficient legal advice" he might receive.[106]

157. Mr Reynolds informed this Tribunal that he sought assistance from Legal Aid but Legal Aid "aren't willing to take it on."[107] Apparently they "had no inclination towards doing it at all" while he was employed and, after he lost his job, Legal Aid was "just not interested in dealing with this matter. Nobody is."[108] As to other possible assistance, Mr Reynolds said "I have no money, no assets, no nothing in order for me to - you get half an hour with a solicitor if you're lucky, and even then, with the amount of paperwork you come up with, they're not interested."[109]

158. In response to Mr Reynolds' statements that he had been unable to find anyone to assist him, Mr Chessell said:

We are self-represented.... We have been able to engage with solicitors and haven't paid a cent for it. We've been to a couple of solicitors. We've been to the Pro-Bono Clearing House, I think it's called, and received advice from them as well. So although I understand Mr Reynolds may have gone to Legal Aid and various other solicitors, in my experience and our experience, we've done exactly the same thing and have got assistance.... And we haven't paid anything for it.[110]

159. Although Mr Reynolds might have benefited from legal representation, and despite the manifest stress of these proceedings on him, Mr Reynolds has demonstrated that, with some procedural assistance from the Tribunal, he has been able to convey to the Tribunal the submissions he wishes to make. Had he followed the procedural advice offered to him by the Tribunal registry staff, he might at least have lodged appeals against Tribunal decisions in time and with the necessary content.

160. I am not satisfied that his lack of representation by Mr Polleycutt is a sufficient explanation of Mr Reynolds' delay in lodging appeals or applications for leave to appeal out of time.

The merits of the appeal and the prospects of success on appeal

161. A feature of this case is how many of the previous proceedings and how much of Mr Reynolds' current submissions focused on procedural matters, and how little focus there is in the appeal documents and submissions on the Tribunal's order that Mr Reynolds pay the Chessells the sum of $25,810.00 and the associated orders about the windows and doors. Yet a key matter to be considered by this Tribunal in deciding whether to grant leave to appeal out of time is whether the appeal has merit. If, as Mr Reynolds told Presidential Member Daniel on 15 April 2019, there were "a multitude of reasons why [Senior Member Lennard's] decisions are wrong,"[111] what are they?

162. To put Mr Reynolds' submissions in relation to the substantive decision in context, it is useful to note how the hearing before Senior Member Lennard was conducted and on what basis she made her orders.

163. Before the hearing, in accordance with directions given by Senior Member Lennard on 17 August 2018 (as amended on 13 September 2018), the Chessells provided the Tribunal and Mr Reynolds with a bundle of documents comprising:

(a) a timeline of events from just before 1 July 2015 until 23 May 2018;

(b) witness statements from Aaron Chessell, Maxine Chessell, Alison Biziak, Louise Powley, and Mark Boyle (Office of Fair Trading);

(c) documents (including "Special Purpose Inspection Window Installation Opinion/Report" (the Peak Consulting report) - Item Y) and photographs identified by letters A to Z and AA to AP; and

(d) two emails from Tracey Gramlick (Executive Director and CEO of Australian Windows Association) that were described as subpoenaed material.

164. By contrast Mr Reynolds did not provide any such material, [112] despite a direction that he provide to the Chessells and the Tribunal by 12 October 2018 a response to the Chessells' claim and the orders he sought, a written timeline of events, witness statements, any expert reports, and other documents such as invoices, quotes, receipts, photographs and emails. As Senior Member Lennard said, Mr Reynolds had "done nothing to get together evidence to respond to the evidence of the other side" despite having had "ample opportunity" to do so.[113]

165. The hearing was conducted on 2 November 2018. Mr Chessell and Mr Reynolds were present. Oral evidence was given by George Pudja, who prepared the Peak Consulting report. He participated by telephone. Mr Reynolds had the opportunity to question Mr Pudja and did so.

166. At the end of the hearing, Senior Member Lennard asked the parties whether they felt they needed any opportunity to make final submissions beyond that day. Mr Chessell indicated that he did not. Mr Reynolds said he had nothing else "at this point," but went on to explain his position by raising some issues and stating that the "whole scenario" had "wrecked" him financially, mentally and health wise.[114] The parties then ventilated matters between them in relation to the Chessells' claim in ways that constituted their further oral submissions.[115]

167. In her written reasons for decision,[116] Senior Member Lennard set out the legal context in which the contract between the parties was formed and the contractual claim would be decided. In deciding whether Mr Reynolds was in breach of the contract, she addressed the two key issues identified by the parties, namely:

(a) whether the windows installed by Mr Reynolds (although not certified) conformed to the relevant Australian Standards; and

(b) whether the quality of the work undertaken by Mr Reynolds was defective.

168. Senior Member Lennard considered the oral and written evidence provided by both parties and made a series of findings of fact to support her conclusions that, among other things:

(a) Mr Reynolds had, in breach of contract, failed to provide to the Chessells windows that comply with the express terms of their contract; and

(b) that the work performed by him was of a poor quality, was not performed in a proper and skilful manner and was not of acceptable quality.

169. She considered a range of matters before determining what she considered to be the appropriate remedy for the breach of contract.

170. Mr Reynolds' written and oral submissions in the present proceedings contain relatively few statements about the substantive decision and why, in his view, there were errors of fact or law. As noted earlier, his written submissions were often difficult to understand and at times incomprehensible.

171. A careful reading of those submissions, as usefully supplemented and explained by Mr Reynolds' oral submissions, disclose that he raised issues in relation to:

(a) the amendment of the Chessells' claim on 11 September 2018;

(b) the qualifications of George Pudja to give expert written and oral evidence in relation to the Chessells' claims;

(c) the identity of the person who took photographs referred to by Mr Pudja and the Chessells in relation to the Chessells' claim;

(d) the lack of weight given by the Tribunal to a report by Craig Brennan about whether the windows installed by Mr Reynolds at the Chessells' house complied with Australian Standards;

(e) the Tribunal's assessment of statements by Mark Boyle;

(f) the way in which the Tribunal determined the amount which Mr Reynolds was ordered to pay to the Chessells; and

(g) other matters about the exercise of the Tribunal's discretionary powers (for example in relation to powers of attorney, and the behaviour of the parties) and the way Mr Polleycutt's involvement in these and other Tribunal proceedings is being used in relation to him in courts.

172. For the reasons that follow, none of those submissions disclose that Mr Reynolds' case has merit and might succeed if he were to be granted leave to appeal out of time. His submissions on each of those issues are considered below.

The amendment of the Chessells' claim on 11 September 2018

173. Mr Reynolds made the following assertions in relation to the Chessells' final amended application filed on 11 September 2018:[117]

(a) it was never served on Mr Reynolds;

(b) it "fundamentally changed the basis of [the] claim from a breach of contract to a damages claim" and "fundamentally changes the case;"

(c) no estimate of the amount of damages was ever delivered apart from "our" $40,000.00 estimate, "which obviously was taken into consideration;" and

(d) the $5,000.00 payable as compensation for damage caused by Mr Reynolds was made before Mr Chessell had obtained quotes.

174. He also submitted that "if there was new evidence in that filed application" that had "prejudiced me and I'm to determine that that's serious miscarriage of justice and that I haven't been able to enact upon the most recent application."[118]

175. Mr Chessell refuted Mr Reynolds' suggestion that Mr Reynolds had no knowledge of the Chessells' amended application on 11 September 2018. According to Mr Chessell:[119]

(a) there was a hearing in relation to a return of subpoena before Presidential Member Daniel on 11 September 2018;

(b) Mr Reynolds and Mr Polleycutt were present at that hearing;

(c) at the end of the hearing, Mr Chessell sought leave from Presidential Member Daniel to submit an amended application increasing the amount claimed by the Chessells from $17,837.00 to $25,000.00 (the Tribunal's jurisdictional limit);

(d) the basis of the Chessells' claim did not change;

(e) the amount of $25,000.00 was less than the $40,000.00 estimate referred to in a report from Peak Consulting and referred to in a letter sent by the Chessells to Mr Reynolds in June 2017;

(f) the Chessells sent Mr Reynolds a letter of demand in December 2017 for the sum of $17,000.00 that they had paid to him;

(g) leave was granted and, immediately after the hearing, Mr Chessell filed the amended application in the registry and it was stamped 11 September 2018;

(h) because Mr Reynolds and Mr Polleycutt had left the Tribunal's premises by that time, Mr Chessell went to Mr Reynolds' home in Fisher the next day and placed in the letterbox an envelope (addressed to Mr Reynolds at that address) containing the amended application.

176. Mr Chessell submitted that, whether or not Mr Reynolds received the documents left in his letterbox, he was on actual notice of the application to amend their original claim.[120]

177. Mr Reynolds submitted that the Tribunal exercised discretionary powers against him in relation to applications to delay proceedings, but had granted Mr Chessell "numerous occasions to refile and refile his application after the fact and then he files it with a claim which I've never seen."[121]

178. Mr Reynolds also submitted that the Chessells had made "multiple applications" and had been given "discretionary leave not to incur costs" so that each reapplication has been made at no cost and "it's encouraging him to abuse that reapplication" and "abuse process at no cost."[122]

179. More broadly, he submitted that no discretionary powers had been exercised in his favour yet the Chessells had been given "discretionary leave to refile with no financial constraints."[123]

180. Having regard to the evidence summarised above, and having compared the Chessells' amended application dated 11 September 2018 with their original application, I am satisfied that:

(a) Mr Reynolds was on notice on 11 September 2018 of the amendment to increase the amount claimed to $25,000.00;

(b) the basis of the Chessells' claim did not change (let alone "fundamentally" change);

(c) the Chessells did make amended applications on 24 May 2018 and 11 September 2018; and

(d) there is no evidence to suggest that the Tribunal exercised any discretions favourably to the Chessells or that they were encouraged to abuse the process.

The qualifications of George Pudja to give expert evidence

181. This issue was raised obliquely in Questions 19 and 20 of Attachment A, which should be read together:

19) Does ACAT have the legal capacity to accept assistance from a party with NO RELEVANT area of EXPERTISE of the "expert" in the matter before the Court?

20) Or incapable of making all enquiries appropriate to the issuies [sic] he is "expert and author"?

182. According to Mr Reynolds, Question 19 relates to the evidence of Mr Pudja. He submitted that Mr Pudja's "licenses are out of date or his affiliations to different things are gone, and ... We're saying there is no relevant area of expertise from that point of view. There's a New South Wales licence to - he's not entitled under his building licence to write building reports and to do building certification or assessments."[124]

183. Mr Reynolds confirmed that this issue was raised before Senior Member Lennard and he recalled that she said that Mr Pudja was an expert witness.[125]

184. Mr Pudja's qualifications were listed at the end of the Peak Consulting report dated 5 June 2017. He was described as a "licensed Builder" and a "licensed Building Consultant (BC737NSW) (now obsolete)." Photocopies of his licenses showed that his Building Consultancy License expired in January 2008, his membership of the Housing Industry Association (as IBIS Integrated Building & Inspection Services) would expire on 31 March 2018, his Contractor licence from NSW Fair Trading would expire in 2018, and his Contractor Occupation Licence expired in about mid 2017.

185. The Chessells provided the Peak Consulting report to Mr Reynolds well in advance of the hearing on 2 November 2018. He had the opportunity to read the report and assess it before the hearing.

186. Mr Reynolds did not ask any questions about Mr Pudja's qualifications at the hearing. He did not object to Mr Pudja giving evidence or to the Tribunal having regard to the Peak Consulting report.

187. Senior Member Lennard did not raise an issue about Mr Pudja's qualifications but proceeded on the basis that he was an expert witness and that he understood the Expert Witness Code of Conduct. She reminded Mr Pudja of his role as an expert witness.[126] In her reasons for decision, she described him as the expert author of the report.[127]

188. It is too late for Mr Reynolds to raise this issue. He could have explored at the hearing the nature and extent of Mr Pudja's training, qualifications and experience and the relevance of Mr Pudja's licences to his ability to offer expert opinion evidence. It is not possible to say at this stage whether such questioning would have cast doubt on the value of the Peak Consulting report.

189. In any case, it is clear from the transcript of the proceedings and the reasons for decision by Senior Member Lennard that, although the Peak Consulting report was significant to the outcome in this case, there was other evidence (including photographic evidence which was the subject of much discussion at the hearing) to support the Chessells' claim.

190. Consequently, the identification in Mr Reynolds' submission of an issue about Mr Pudja's qualifications is not sufficient to support a conclusion that an appeal against Senior Member Lennard's decision has merit.

The identity of the photographer to whose photographs Mr Pudja referred

Is the proper application of law for the Applicant (regardless of jurisdiction) required to be honest; upfront and disclose all relevant information in a claim in ACAT?

192. Mr Reynolds contended, in relation to "claim" 22, that Mr Chessell's final application deposed that all the photographs relied on were produced by his building expert, Mr Pudja. However, Mr Pudja's report stated (at page 7 of 15) that the photographs on which he relied in his report were provided by the applicant.[128] According to Mr Reynolds, the photographs were taken in 2017 in the following circumstances:

There were two windows in the original installation that weren't fitted - that weren't measured and delivered correctly - perfectly - so we got them remade, no extra charge or cost or anything like that, as part of sort of like a warranty sort of thing, but it's to get the job up to spec. When we went to replace those windows, all the rest of the windows in the house - the frames, the architraves, the rebates and recesses and everything else - had all been painted up.

There were curtains on and there were furnishings around the windows which weren't - which were in place and done and painted and completed before Mr Pudja came to do his report, which was when the windows were - supposedly the photographs were taken by Mr Pudja, but as Mr Chessell says, Mr Pudja said that they were supplied by Mr Chessell.[129]

193. Mr Reynolds submitted that the Tribunal was misled about when the photographs were taken and what they show. He asserted that the Chessells had submitted that the photographs on which they relied were created by Mr Pudja in 2017, yet Mr Pudja's report (that "carried huge weight") stated that the photographs were provided by the applicant. There were "false submissions that those photographs were taken by Mr Pudja" an expert witness.[130] Mr Reynolds said that he made this contention about the identity of the photographer because "it's about [Mr Chessell] being honest and upfront."[131]

194. The Peak Consulting report was submitted as evidence before Senior Member Lennard, but the point about who took the photographs was not identified to her.

195. Mr Chessell refuted Mr Reynolds' statement that the Chessells submitted photographs as if they were taken by Mr Pudja. According to Mr Chessell, they took the photographs and supplied them to Mr Pudja, who wrote his report based on them. Mr Chessell also refuted any suggestion that he had misled the Tribunal in relation to the photographs.[132]

196. The chronological Summary of Dispute provided with the Chessells' Civil Dispute Application referred, in the entry for 4 July 2017, to receiving the Peak Consulting report which referred to "the photographic evidence provided by the owners."

197. It is clear from the transcript of the hearing before Senior Member Lennard that:

(a) Mr Pudja took photographs at the Chessells' house when he inspected it on 5 June 2018;[133]

(b) those photographs were not included in the Peak Consulting report;[134]

(c) Mr Pudja's photographs were not in the report because, according to Mr Chessell, "it was going to cost us $1700 and I didn't have $1700;"[135]

(d) the report referred to "Photographic record of windows and door installation furnished by the homeowner;"[136]

(e) the report also referred to "the photographic evidence provided by the owners" from which, together with close examination of the installed windows and doors, it was "clear that no proper flashing was installed;"[137]

(f) other photographs, apparently taken by Mr Chessell at the time of the installation of the windows by Mr Reynolds (possibly in April 2018), were included in the documents provided to the Tribunal and Mr Reynolds by the Chessells (items K to Q);[138] and

(g) those photographs were considered by the parties and the Tribunal at the hearing on 2 November 2018, and there was detailed discussion about whether there was any evidence of flashing at the windows.[139]

198. In her reasons for decision, Senior Member Lennard wrote:[140]

The applicants provided photographs taken by them at the time of the installation of the windows. They revealed damaged plasterwork, gaps left between frames and doors, lack of flashing, silicon marks on doors and windows and gaps in the sealant, window frames that are not square or otherwise don't fit properly, and window frames that are split by nails. These photos support the conclusion that the workmanship was of a general poor quality. (emphasis added)

199. She then quoted from the Peak Consulting report about the nature of the defective installation and non-compliance with Australian Standards and relevant building codes. She concluded "on the evidence before me" that the work performed by Mr Reynolds was of poor quality, was not performed in a proper and skillful manner and was not of acceptable quality.[141]

200. I am satisfied that Mr Reynolds' contention about the photographs was misconceived, that the Tribunal was not misled, and the submission (even if made out) would not support a finding that the appeal has merit and that leave to appeal out of time should be granted.

The lack of weight given to the report of Craig Brennan

201. Mr Reynolds stated that, as part of the subpoena process, "we were given notice of a document," a report by Mr Brennan from the Australian Windows Association, and "They said that the windows were compliant with Australian standards."[142] According to Mr Reynolds, the report was produced in April 2018 and Mr Chessell had knowledge of it. The document was brought before Senior Member Lennard but "she didn't take any notice of it. She discarded it." He submitted that Senior Member Lennard "erred in the weighing she put on that document."[143]

202. Mr Chessell rejected Mr Reynolds' suggestion that a report by Mr Brennan certified the windows. That document was submitted in evidence before Senior Member Lennard. Mr Chessell made statements about when, he understood, Mr Reynolds became aware of the report by Mr Brennan. He disputed Mr Reynolds' claim that he did not know about it until 23 October 2018 when the matter was before Presidential Member McCarthy. Mr Chessell claimed to have email evidence from the person who commissioned the report that Mr Reynolds was aware of it in April 2017 and received a copy early in May 2018. In Mr Chessell's submission, this was a case of Mr Reynolds "hiding this report from us" rather than the Chessells hiding anything from Mr Reynolds.[144]

203. A review of the transcript on 2 November 2018 shows that a report of Mr Brennan was referred to and considered in the course of the hearing.[145] Contrary to Mr Reynolds' submission, Senior Member Lennard referred in detail to Mr Brennan's report in her reasons for decision.[146] As she observed,[147] that report was prepared in relation to windows installed in other premises by Mr Reynolds. Mr Brennan reached his conclusions based on an on-site inspection. There was no evidence that he had performed any pressure or safety tests upon the windows or doors in question, although he laser-measured the thickness of the glass. Mr Brennan concluded that these windows/doors were representative of the products to be installed in a number of houses in the local area[148] (referring to Mr Reynolds' other customers) and he concluded, based upon his observations, that the products "will meet the requirements of AS2047"[149] for houses in this location. The report was specific to the location of the house in which these particular doors and windows would be installed and there was no information before the Tribunal as to whether Mr Brennan's findings could also be applied to the windows and doors installed in the Chessells' premises.

204. Senior Member Lennard considered his conclusion in light of all the evidence about whether the windows installed by Mr Reynolds, although not certified, conform to the relevant Australian Standards. She was satisfied that they did not.[150]

205. The fact that, having considered all the evidence, Senior Member Lennard did not adopt Mr Brennan's conclusion is no reason for concluding that an appeal against the decision has merit and might succeed.

Is the Statements made by Mark Boyle on 9 August 2019, not putting in that statement that ACCESS Canberra in April 2018 official records of communications with the Applicant that the Goods being investigated had been certified and communicated to the Applicant of a Matter Re-filed and documented. (Emphasis and errors in original)

207. Mr Reynolds submitted that Access Canberra conducted an investigation and determined on 18 April 2018 that the windows had been certified. According to Mr Reynolds, "I've never said that they were certified, but the government authority has done," and Access Canberra communicated with the applicant, that is, the Chessells.[151]

208. Mr Reynolds told this Tribunal that he could not remember whether the communications between Access Canberra and the Chessells were in evidence before Senior Member Lennard. It came to light in response to a subpoena issued by Mr Chessell in September 2018 and might have been referred to in the hearing on the return of subpoena before Presidential Member Daniel on 11 September 2018.[152]

209. Mr Chessell stated that he was not aware of any report from the Office of Fair Trading in Access Canberra stating that the windows installed by Mr Reynolds complied with the relevant standards.[153]

210. At the hearing on 2 November 2018, there were references to a record of communication between Mr Boyle (a senior investigator at Access Canberra) and Mr Chessell which, Mr Reynolds suggested, established that Mr Chessell was informed that the windows had obtained Australian certification. Mr Chessell recalled that the conversation referred to another of Mr Reynolds' customers who was seeking certification of their windows. That seems apparent from the exchange at that hearing.[154]

211. Mr Boyle's position was clearly stated in a letter dated 23 May 2018 to Mr Chessell.[155] In that letter, Mr Boyle referred to investigations by a team within Access Canberra of Mr Chessell's complaint against Ardglass Windows. Mr Boyle noted that he had attended Mr Chessell's home with another senior investigator and inspected the works undertaken by Ardglass Windows. "It was noted that the installed windows did not bear the Australian Certification Standard."

212. Mr Boyle referred to subsequent discussions with Mr Reynolds in which Mr Boyle informed Mr Reynolds that the windows he was installing did not appear to be certified to the Australian Standard. In the period between 14 November 2017 and 14 February 2018, Mr Boyle "regularly engaged with Mr Reynolds regarding your complaint and his efforts to address the issue of certification." On 14 February 2018, Mr Reynolds telephoned Mr Boyle and informed him that he was ceasing to trade and that he would be winding up his business. Mr Boyle wrote that Mr Reynolds had failed to provide the written confirmation sought and his "numerous attempts to contact" Mr Reynolds had not been responded to. Because the office of Access Canberra could be of no further assistance to Mr Chessell in this matter, his file was closed.

213. That letter is consistent with emails from Tracey Gramlick to Mr Reynolds, including one dated 13 December 2017 advising him that the reports he provided about the windows he installed "have little relevance to AS2047 performance type testing that is required in Australia. There is no way to claim equivalence to our standards with the information in these reports."[156]

214. Accordingly, there is no foundation for Mr Reynolds' submissions on this issue.

How the amount in the Tribunal's order was determined

Can ACAT further decide an Application for Other orders to address the filing; administration; hearing; and determination of the matter above the legislated jurisdictional limits of authority; BASED on the consideration that the legislated LAW is irrelevant due to the only legal consideration for ACAT is what the final Order once the amount determined as damages by ACAT above the legislated jurisdictional limits of authority are to be reduced by ACAT applying the debts owed to the Respondent by the Applicants so the Determination of the amounts above the legislated jurisdictional limits of authority are reduced to be within?

216. According to Mr Reynolds, that question relates to "the accepted evidence of a $40,000 damages claim by Mr Chessell through a report from Mr Pudja. ...You just need to claim the ACAT limit of 25,000 without having to look at any of the - so that's what it relates to."[157] He continued:

So basically what we're saying in that is that Senior Member Lennard accepted the fact that there was an estimate of the damages done to Mr Chessell's house in Mr Pudja's report - and then in a subsequent report which I never got - said the damages were in excess of $40,000 which is obviously above the jurisdictional limit. ... And is it fair that you're able to reduce that claim down to 25,000 without ever having to detail of where this 25,000 has ever come from? That's basically what we're asking - or what I'm asking. ... If it's a $40,000 claim it should be in another jurisdiction. Therefore, ... You didn't even have jurisdiction to hear the case.[158]

217. Mr Reynolds submitted that Senior Member Lennard "made a decision with 40,000 in her head, not 25,000 in her head.... So that's where we come from on that case."[159]

218. Mr Chessell confirmed that there has never been a claim against Mr Reynolds for $40,000.00.[160] As noted earlier, the Chessells' original claim was for $17,837.00. The application was amended on 11 September 2018 to $25,000.00, the jurisdictional limit for Civil Dispute Applications as provided in section 18 of the ACAT Act.

219. Senior Member Lennard put her position plainly when she said, in relation to any award of damages and a suggestion from Mr Reynolds it might be $40,000.00, "Just for Mr Reynolds' benefit. There's no way I'm ordering $40,000 because I don't have the power to do that."[161]

220. Mr Chessell referred to the $25,000 limit, and Senior Member Lennard stated "I want you to be clear that there's a limit. ... And I have to be clear that you get to that limit or not."[162]

221. As noted earlier, the original amount awarded for compensation in the order of 7 February 2019 was $22,837.00, less than the $25,000.00 jurisdictional limit.

222. Mr Reynolds also said that a sum of $5,000.00 was ordered for compensation with no mention of that sum in the hearing or in the building reports. Accordingly, there is a question about the source of that figure or "has it just been plucked as a figure out of the air"?[163]

223. It is clear from her reasons for decision that Senior Member Lennard was satisfied that Mr Reynolds caused damage to the walls adjacent to the windows and that work was necessary to the front entry door opening. She determined the amount by reference to that damage. Senior Member Lennard wrote: "I have determined, based upon the items set out in Table 1 of the Peak Consulting Report that the respondent should pay $5,000 compensation to the applicants."[164]

224. Mr Reynolds' submissions on these aspects of the decision lack foundation.

225. Mr Reynolds raised issues about what he submitted was the Tribunal's exercise of discretionary power in favour of the Chessells and against him. Examples of these submissions are referred to earlier in the discussion of the amendments to the Chessells' claim in September 2018. Other submissions are considered below.

226. First, Mr Reynolds put in issue a determination by Member Warwick in relation to a power of attorney which allowed Mr Quinn's wife to represent Mr Quinn. According to Mr Reynolds, the power of attorney was completed incorrectly and was partially blank.

• 227. Mr Quinn ceased to be a party to the Chessells' application by consent of the parties on 17 August 2018. Yet Mr Reynolds persisted in making submissions about this alleged flaw in the power of attorney because, he said, "the whole process of justice the whole way through. It's not been followed by ACAT."[165] Mr Reynolds referred later to the second respondent "never having contested their liability" and to the Tribunal (Member Warwick then Presidential Member Daniel in separate hearings) allowing Mrs Quinn's attendance under what is "now in evidence to be shown to be an incomplete partially blank power of attorney" that was "deemed viable and valid at the hearing."[166] Mr Reynolds asked whether "if we'd had the ability to contest her power of attorney at that stage would Mr Quinn still be here"?[167]

228. When this Tribunal asked him what difference it would have made to the proceedings if Member Warwick had made a mistake and the power of attorney was shown to be invalid on that occasion, Mr Reynolds said:

I'm not necessarily saying it would make a difference. But what I am saying is Presidential Member Daniel determined that that power of attorney was correct but my power of attorneys were wrong. She then progressed obviously to - removing my power of attorney at a later date - and I'm saying the whole thing has shown prejudice against me the whole way through. ... I can't make it any clearer."[168]

229. When this Tribunal noted to Mr Reynolds that Mr Polleycutt had been removed as his representative not because of any defect in the power of attorney but by reference to the Tribunal's Rules, Mr Reynolds said "It was confirmed in the hearing on the 11 September my power of attorney - the basis of my power of attorney was correct and that he'd done nothing wrong." Mr Reynolds submitted that the way the Tribunal treated the powers of attorney "the whole way through has always been against me. ... the whole way through it's been wrong."[169] Those statements confirm that the submissions about the alleged erroneous action by the Tribunal in relation to the power of attorney to Mrs Quinn are an example of a general assertion made by Mr Reynolds that during the hearings "on numerous occasions" he had raised "issues concerning the deficiencies in the administration of justice." He continued, "I don't think it's being administered properly and I'm not getting a fair crack of the whip."[170]

• 230. More broadly, he submitted that no discretionary powers had been exercised in his favour, yet the Chessells had been given "discretionary leave to refile with no financial constraints."[171]

231. I am not satisfied that the differently constituted Tribunals exercised their discretionary powers inappropriately. Mr Reynolds clearly feels aggrieved by a series of rulings which he considers were to his detriment. That does not mean that the rulings were incorrect. Nor is that a basis for granting leave to appeal out of time.

232. Second, Mr Reynolds took issue in relation to the way Presidential Member Daniel dealt with his assertions that, during a break in proceedings on 11 September 2018, Mr Chessell used "foul and abusive language" and "discriminatory words" and made "threats of violence" towards Mr Reynolds. Mr Reynolds contended that Mr Chessell was in contempt of the Tribunal, yet Presidential Member Daniel discounted what Mr Chessell said at the time as being "acceptable language to use within a court proceeding."[172]

233. Views will vary about the impact of the language allegedly used outside the hearing. For present purposes, even if Mr Reynolds' recollection of events is correct, that provides no basis for concluding that the decision that the decision of Senior Member Lennard was incorrect or that leave should be granted to appeal out of time.

234. Third, Mr Reynolds made imprecise assertions that proceedings before the Tribunal had been used in the Magistrates Court in a way that is "basically derogatory" to prejudice the person holding his power of attorney (Mr Polleycutt) in unrelated proceedings in that Court. Mr Reynolds stated that "the only way they could gave gotten any notice of it was from this court, this tribunal." When asked who he was accusing of that, Mr Reynolds replied "I'm not accusing anybody. I don't know who it is."[173] Subsequently in the hearing Mr Reynolds asserted that the actions of Mr Polleycutt in the Tribunal (and the fact that he was removed as Mr Reynold's representative in Tribunal proceedings) were being brought up in the Federal Court in the course of a Family Court matter.[174] Even later in the hearing, Mr Reynolds referred to "a Federal Court matter being prejudiced by defamation of Mr Polleycutt."[175]

235. Mr Reynolds' submission in relation to Mr Polleycutt can be dealt with briefly as follows:

(a) The submission has no relevance to proceedings before the Tribunal, particularly the current application for the grant of leave to appeal decisions out of time.

(b) The order and reasons for decision of Presidential Member Daniel for the removal of Mr Polleycutt as Mr Reynolds' representative[176] are publicly available and published on the Tribunal's website.

236. In response to a range of assertions by Mr Reynolds, Mr Chessell submitted that procedural fairness "goes both ways." He referred to the attempts by Mr Reynolds, including through various emails, requesting the registry to perform various tasks including submitting an appeal for him. In Mr Chessells' submission "you can't have one party making submissions to the tribunals and the registry that effectively are procedurally unfair to the other party." That was, in his submission, what had happened as Mr Reynolds was "constantly not following the rules and procedures" and that "should be considered an abuse of process." He identified some directions with which Mr Reynolds did not comply, including orders by Member Warwick in relation to an application that Mr Quinn be removed as a respondent (which application was dealt with by consent of the parties).[177] Mr Chessell also identified the number of decisions and orders in the course of these proceedings that Mr Reynolds has appealed or sought to appeal.[178]

237. In more general terms, Mr Chessell submitted that, to the extent that Mr Reynolds had identified factual errors, Mr Chessell had been able to "rebut those assertions" and "put some light on where Mr Reynolds may be taking things out of context or may be remembering them in a different way."[179]

238. In summary, the Chessells submitted that no errors of law had been identified, no errors of fact had been identified, and no new evidence was provided for the purpose of the appeal. Other than "many spurious accusations and irrelevant and immaterial claims," they submitted that Mr Reynolds had not presented any case, let alone a strong case (given the long delay in seeking to appeal) for the Tribunal to consider in relation to his submissions. Consequently, they submitted, there was no material on which the Tribunal could exercise any discretion to extend time for an appeal.

239. I agree. There has been no lack of procedural fairness to Mr Reynolds. His assertions, quoted earlier, that:

(a) he "has taken and followed every echelon of possibility to have the Appeals and errors addressed in a quick timely and efficient manner;" and

(b) "At no time has any direction been ignored,"

are incorrect. It is clear from the chronology set out earlier and other examples referred to in these reasons that he has failed to comply adequately or at all with some directions made by the Tribunal. His actions have been contrary to the disposition of appeals in "a quick timely and efficient manner." In some instances, proceedings have continued despite his absence in an effort to resolve the substantive matters. The concerns Mr Reynolds has expressed about how he has been treated by the Tribunal do not provide a basis for granting leave to appeal out of time against Senior Member Lennard's decisions in February 2019.

240. Some other matters were raised by Mr Reynolds in Attachment C. They were unclear or not supported by evidence. It is not necessary to recite and respond to them.

Prejudice to the respondent if leave is granted

241. The Chessells submitted that they would suffer prejudice if leave to appeal out of time were granted. Indeed, in their submission, the prejudice to them caused by the delay is "extreme." The import of their written submission as supplemented by statements made by Mr Chessell at the hearing on 29 July 2019,[180] is that:

(a) final judgment and orders were handed down in this matter on 7 February 2019;

(b) following the Tribunal's final decision, they sourced and paid for new windows and doors at substantial cost to them;

(c) in about July 2019 they replaced the windows and doors installed by Mr Reynolds;

(d) in accordance with Order 2 of the amended orders dated 14 February 2019, they notified Mr Reynolds to collect the windows and doors that were removed;

(e) Mr Reynolds did not reply to that email or collect the windows and doors; and

(f) at the end of the appeal period they should have the right to retain the benefit of the decision of the Original Tribunal, especially when they had complied in good faith with orders of the Tribunal.

242. Further, the Chessells observed, this matter (which is "effectively a simple civil dispute regarding a breach of contract") had been ongoing for 19 months due to Mr Reynolds' history of non-compliance with Tribunal directions and orders.

(a) the cost to the Tribunal and the parties is significantly disproportionate to the complexity and significance of the material case, and is not in keeping with the overarching of 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 prejudice to other users of the Tribunal is also significant, given the length of time and resources the Tribunal needed to manage this matter.

244. I am satisfied that the Chessells have suffered prejudice by the delay in the proceedings to date. That prejudice would be exacerbated if Mr Reynolds was granted leave to appeal out of time.

245. Mr Reynolds submitted, in effect, that the rigid enforcement of time limits could be "instruments of injustice." In his submission, the Tribunal has sought to further prejudice matters by using legislative time limits for that purpose. Consistent use of such time limits:

might only serve to limit accountability, pervert the course of justice, discriminate, and discriminate to serve a higher directive or reverent power. That is not such a power expected by the people in the appointment of a person to fulfil a public position to prescribe the legislation and Law made by the people for all people.[181]

246. That submission fails to recognise the importance given by courts and tribunals to the use of such time limits:

(a) to facilitate the finalisation of matters in dispute before them; and

(b) to ensure that parties to particular proceedings and also the many other parties who have applications before the Tribunal, have an opportunity to have their matters heard and determined in a timely manner.

The submission also seems to proceed on the basis that time limits are enforced without regard to surrounding circumstances. As the preceding lengthy consideration of a wide range of submissions indicates, this Tribunal has regard to a range of circumstances in deciding whether the otherwise strict time limits should be varied in a particular case.

247. In the Chessells' submission, there is no miscarriage of justice in refusing to allow Mr Reynolds' application.

248. It is apparent from the preceding discussion of Mr Reynolds' wide-ranging applications for relief on the basis for those applications, that not only would there be no miscarriage of justice in refusing to allow his application but there would be a miscarriage of justice to grant the relief he seeks. There should be no further delay in giving effect to the orders made by the Tribunal on 14 February 2019.

249. For the reasons set out above, I have concluded that:

(a) there was a substantial delay between the orders made by Senior Member Lennard in February 2019 and the lodgement of an application to appeal out of time against those decisions;

(b) Mr Reynolds has not provided adequate reasons for that delay;

(c) the appeal lacks merit;

(d) the Chessells have suffered prejudice by the delay in the proceedings to date, and that prejudice would be exacerbated if Mr Reynolds was granted leave to appeal out of time; and

(e) there would be no miscarriage of justice if leave to appeal out of time is refused, but there would be a miscarriage of justice if leave were granted.

250. Consequently, leave to appeal out of time against the orders of the Tribunal on 7 and 14 February 2019 is refused.

Other relief sought by Mr Reynolds and the Chessells

251. The reasons set out above deal with the merits of Mr Reynolds' application for leave to appeal against orders listed in [64](e), (f) and (g). As recorded in [72], at the hearing on 29 July 2019 Mr Reynolds abandoned his application for leave to appeal the directions given by this Tribunal on 14 June 2019 (listed in [64](h)).

252. For completeness, I note that even if it were legally possible for appeals to be made against interlocutory decisions, the applications made by Mr Reynolds in relation to the orders listed in [64] (a), (b), (c) and (d) would be dismissed. They related to procedural matters only. Some of the orders were made in relation to procedural matters that had been decided previously. None directly affected the rights of the parties in relation to the relief sought by the Chessells in their original application.

253. Mr Reynolds advanced no compelling case for leave to be granted to appeal those decisions out of time. Even if he had done so, upholding any appeal would have had no practical effect. The dates for compliance with some procedural directions, and the dates for hearings, have passed. One party was removed by consent. Other people were not joined as parties. There would have been no practical benefit in hearing the appeal as no practical orders could have been made in the unlikely event that one or more of the appeals succeeded.

254. It follows from the conclusions reached above that Mr Reynolds' applications for:

(a) the stay of "all orders in this matter;" and

(b) orders that the three matters XD 22/2018 (the present proceedings), XD 334/2018 and XD 800/2018 be joined,

255. As all of Mr Reynolds' applications are refused or dismissed it is not necessary to make orders in relation to the Chessells' application for Mr Reynolds' application to be deemed frivolous, vexatious, lacking in substance and an abuse of process.

256. In his reasons for decision dated 31 October 2018, Presidential Member McCarthy referred to the "regrettably long and tortuous history" of this matter. That description has added force in light of the events since then which led to the lengthy reasons for decision of this Tribunal.

257. Three concluding observations are appropriate. Given the similarity of this case with the proceedings in Reynolds v Verma & Anor, it is appropriate to restate (with minor modification) the observations made at the end of the reasons for decision in that case.[182]

258. First, the reasons for decision in this case are unusually long and detailed, particularly given the nature of the issues before this Tribunal. As will be apparent from the reasons, their length was primarily a response to the wide-ranging submissions made by Mr Reynolds which were lengthy, often unclear and sometimes incomprehensible. The submissions related to separate proceedings before differently constituted Tribunals. The matters being argued involved the present Tribunal exercising the powers of an Appeal Tribunal in relation to some matters, and the powers of a Tribunal at first instance in relation to others. The complex and at times confusing series of events which led to the hearing of these matters did not facilitate the speedy disposition of the case.

259. Having paid close attention to what both parties provided, the issues to be decided became clear enough. In the end, the decisions and the reasons for them were able to be expressed relatively briefly.

260. The case illustrates not only the difficulties confronted by unrepresented parties and the Tribunal in dealing with the types of issues raised by these proceedings, but also illustrates how those issues can be compounded if one party engages someone to assist them who not only does not progress their case but confuses it and introduces unnecessary (and ultimately detrimental) procedural complexity.

261. Second, there is a public interest in the finality of litigation. It is clear from this case that Mr Reynolds seems intent on using every procedural option available to him to try to avoid confronting the real issues in the case, and the orders against him. His manifest tactic is to use the Tribunal's processes for the purposes of avoidance and delay.

262. In that context, I note that a differently constituted Appeal Tribunal wrote in Hussain v Farhmand:[183]

... it may seem a curious feature of this case that the legislation permits more than one application for leave to appeal out of time to be made. This may be to enable justice to be done in the rare cases where new and significant evidence comes to light that was not previously known about or available. However, the lack of an express limit also provides the potential for justice to be delayed and denied.[184]

To be properly brought, any second or subsequent application for leave to appeal out of time cannot merely repeat or rely upon arguments that have already been heard and ruled upon in an earlier application for leave. In our view, an application for leave to appeal of that kind, or brought for an ancillary purpose, amounts to an abuse of process.[185]

263. The results in this case and the reason for it demonstrates the adverse consequences for applicants (in this case the Chessells) and the diversion and use of substantial Tribunal resources when dealing with procedures with such manifest lack of merit.

264. Third, and more generally, these proceedings demonstrate the way in which appeals against a range of orders made and directions given by the Tribunal can unnecessarily prolong the resolution of applications to the Tribunal and frustrate the object of the ACAT Act that applications to it are resolved "as quickly as is consistent with achieving justice" while ensuring that "the decisions of the tribunal are fair."[186] They also cut across the obligation on the Tribunal, when exercising its functions under the ACAT Act, to ensure the procedures of the Tribunal are "as simple, quick, inexpensive and informal as is consistent with achieving justice" while observing "natural justice and procedural fairness."[187]

265. As noted earlier, there is a real question whether the Tribunal has power to deal with a range of interlocutory applications. There are two relatively recent decisions of Appeal Tribunals (one delivered after the hearing of this case) to the effect that no appeal lies from interlocutory decisions of the Tribunal.[188] Persuasive as they are, those decisions are not binding on other members of the Tribunal. Having regard to the circumstances outlined in detail above in these proceedings, as well as the circumstances giving rise to those decisions, it might be appropriate for the Legislature to consider whether the ACAT Act should be amended to clarify which decisions can, and cannot, be the subject of internal appeals.

(a) the appeal against the decision of Presidential Member Daniel on 15 April 2019 is dismissed;

(b) the application for an extension of time to appeal against the decisions of Senior Member Lennard on 7 and 14 February 2019 is refused; and

(c) the application for leave to appeal against orders and directions of the Tribunal on 17 August 2018, 13 September 2018, 15 October 2018, 23 October 2018 and 14 June 2019 is refused.

[1] XD 22/2018 Chessell & Anor v Reynolds; XD 334/2018 Powley & Anor v Reynolds; XD 800/2018 Verma & Rees v Reynolds

[2] See Chessell & Anor v Reynolds [2018] ACAT 110

[3] AA 17/2019 Reynolds v Powley & Anor; AA 10/2019 Reynolds v Verma & Rees

[4] Transcript of proceedings 29 July 2019 pages 57-58

[5] Transcript of proceedings 29 July 2019 page 72

[6] Transcript of proceedings 29 July 2019 pages 2-7

[7] Transcript of proceedings 29 July 2019 pages 38, 56

[8] Transcript of proceedings 29 July 2019 pages 58-59

[9] Chessell & Anor v Reynolds [2018] ACAT 110

[10] Chessell & Anor v Reynolds [2018] ACAT 110 at [5], [6]

[11] Chessell & Anor v Reynolds [2018] ACAT 110 at [7]- [25]

[12] The stated matter numbers were incorrect, and are XD 334/2018 and XD 800/2018

[13] Final orders have been made in that matter. See Powley v Reynolds [2018] ACAT 103

[14] Chessell & Anor v Reynolds [2018] ACAT 107

[15] The date of 25 October 2018 was the date nominated by Mr Reynolds in his application. As noted earlier, the decision was dated 23 October 2018.

[16] Chessell & Anor v Reynolds [2019] ACAT 20

[17] Transcript of proceedings 29 July 2019 page 29

[18] Transcript of proceedings 29 July 2019 page 50

[19] Transcript of proceedings 29 July 2019 pages 49-50

[20] Transcript of proceedings 29 July 2019 page 49

[21] Transcript of proceedings 25 July 2019 page 50

[22] Transcript of proceedings 29 July 2019 pages 51-52

[23] Walls v Coutts [2019] ACAT 104

[24] GP v McKenzie and Ors [2018] ACAT 96

[25] The Legal Practitioner v Council of the Law Society of the Australian Capital Territory (Stephen Stubbs) [2010] ACAT 19

[26] See GP v McKenzie and Ors [2018] ACAT 96 at [60], [61]

[27] GP v McKenzie and Ors [2018] ACAT 96 at [68]

[28] GP v McKenzie and Ors [2018] ACAT 96 at [68]

[29] Beazley, Tout and Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Butterworths, 2014)

[30] Walls v Coutts [2019] ACAT 104 at [24]

[31] Walls v Coutts [2019] ACAT 104 at [27]

[32] Walls v Coutts [2019] ACAT 104 at [28]

[33] Walls v Coutts [2019] ACAT 104 at [30]

[37] See the discussion of this by Elkaim J in Legal Practitioner v Law Society of the ACT [2016] ACTSC 203

[38] [2015] ACTCA 56

[39] [2015] ACTCA 56 at [21]

[40] See, for example, Urbaniak-Bak v Council of the Law Society of the ACT & "RA" [2016] ACAT 156; Krown Living Pty Ltd v Lando [2016] ACAT 149; Hussain & Bilkis v Rahman [2016] ACAT 145; Superal-Wallace v Indypendent Pty Ltd & Anor [ 2016] ACAT 144

[41] Transcript of proceedings 15 April 2019 page 10

[42] Transcript of proceedings 15 April 2019 pages 10-11

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

[44] Attachment A page 9/13 paragraph 7) r; see also page 10/13 paragraph 7) s xiv, xv

[45] Attachment A page 11/13 paragraph 7) xxi

[51] Attachment C page 7 paragraph 2) b

[52] Transcript of proceedings 29 July 2019 page 53

[53] Transcript of proceedings 29 July 2019 page 56

[54] Transcript of proceedings 15 April 2019 pages 6-7

[55] Transcript of proceedings 15 April 2019 page 11

[56] Transcript of proceedings 29 July 2019 page 29

[57] Transcript of proceedings 29 July 2019 page 30, see also page 35, Attachment B page 8(g), 11

[58] Transcript of proceedings 29 July 2019 page 31

[59] ACT Civil and Administrative Tribunal Act 2008 section 79(3)

[60] ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2), rule 14(1)

[61] ACT Civil and Administrative Tribunal Act 2008 section 112(1)(b)

[63] For a fuller description of the scheme see Reynolds v Verma & Anor [2019] ACAT 101 at [323] to [239]

[64] ACT Civil and Administrative Tribunal Act 2008 section 61(1)

[65] ACT Civil and Administrative Tribunal Act 2008 section 61(2)

[66] ACT Civil and Administrative Tribunal Act 2008 section 61(3)

[67] ACT Civil and Administrative Tribunal Act 2008 section 59(1)

[69] See Reynolds v Verma & Anor [2019] ACAT 101 at [57]- [59], [238]

[70] ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2), rule 22

[71] Transcript of proceedings 29 July 2019 page 45. See also Attachment B pages 1 at 1(a), 10(g), 17(3), Attachment C page 7(b)(iv)

[72] Transcript of proceedings 29 July 2019 page 20, see also pages 34, 45

[73] Transcript of proceedings 29 July 2019 pages 79-81, 83

[74] Transcript of proceedings 29 July 2019 page 80

[75] XD 22/2018 Chessell & Chessell v Reynolds

[76] Transcript of proceedings XD 22/2018 Chessell & Chessell v Reynolds 14 February 2018 page 4

[77] Transcript of proceedings XD 22/2018 Chessell & Chessell v Reynolds 14 February 2018 page 7

[78] Chessell & Anor v Reynolds [2018] ACAT 110

[80] Powers of Attorney Act 2006 section 63

[81] Transcript of proceedings XD 22/2018 Chessell & Chessell v Reynolds 16 October 2018 page 7

[82] Transcript of proceedings 29 July 2019 pages 19-20

[83] Transcript of proceedings 29 July 2019 page 7

[84] Transcript of proceedings 15 April 2019 pages 3-4

[85] Transcript of proceedings 15 April 2019 pages 8-9

[86] Transcript of proceedings 29 July 2019 page 47

[87] Transcript of proceedings 29 July 2019 page 16

[88] Transcript of proceedings 2 November 2018 pages 32-33, 46-48

[89] Transcript of proceedings 2 November 2018 page 58

[90] Transcript of proceedings 2 November 2018 page 58

[91] Transcript of proceedings 29 July 2019 page 82

[92] Transcript of proceedings 29 July 2019 page 83

[93] Transcript of proceedings 29 July 2019 page 82

[94] Transcript of proceedings 29 July 2019 pages 47-48

[95] See for example transcript of proceedings 2 November 2018 pages 8, 19, 24-25, 29-30

[96] Transcript of proceedings 2 November 2018 page 98

[97] Transcript of proceedings 2 November 2018 page 89

[98] Transcript of proceedings 29 July 2019 page 35, Attachment B page 12 (d)

[99] Transcript of proceedings 29 July 2019 pages 36-37, Attachment B page 13 (k) and (l)

[100] Transcript of proceedings 29 July 2019 pages 83-84

[101] Transcript of proceedings 29 July 2019 page 86

[102] Transcript of proceedings 29 July 2019 pages 85-86, citing Verma & Anor v Reynolds (No 2) [2019] ACAT 19 at [12]

[103] Transcript of proceedings 29 July 2019 pages 78-79

[104] Chessell & Anor v Reynolds [2018] ACAT 110

[105] Chessell & Anor v Reynolds [2018] ACAT 110 at [7]- [25]

[106] Transcript of proceedings 15 April 2019 page 9

[107] Transcript of proceedings 29 July 2019 page 35

[108] Transcript of proceedings 29 July 2019 page 36

[109] Transcript of proceedings 29 July 2019 page 35

[110] Transcript of proceedings 29 July 2019 page 84

[111] Transcript of proceedings 15 April 2019 pages 6-7

[112] Transcript of proceedings 2 November 2018 pages 8-11, 82

[113] Transcript of proceedings 2 November 2018 page 10

[114] Transcript of proceedings 2 November 2018 pages 88-90

[115] Transcript of proceedings 2 November 2018 pages 90-101

[116] Chessell & Anor v Reynolds [2019] ACAT 20

[117] Transcript of proceedings 29 July 2019 pages 24-25, 34, 37, 41-42, 52. See also Attachment B page 10(f), page 11(j) and (i), Attachment C page 2

[118] Transcript of proceedings 29 July 2019 page 48

[119] Transcript of proceedings 29 July 2019 pages 59-66

[120] Transcript of proceedings 29 July 2019 page 60-61

[121] Transcript of proceedings 29 July 2019 page 32

[122] Transcript of proceedings 29 July 2019 page 39, see Attachment C at page 1 2(a)(3)

[123] Transcript of proceedings 29 July 2019 page 40-41, Exhibit C page 2 part 5, 6

[124] Transcript of proceedings 29 July 2019 page 11

[125] Transcript of proceedings 29 July 2019 page 11

[126] Transcript of proceedings 2 November 2018 pages 33-35

[127] Chessell & Anor v Reynolds [2019] ACAT 20 at [18](c)

[128] Transcript of proceedings 29 July 2019 page 14

[129] Transcript of proceedings 29 July 2019 page 17

[130] Transcript of proceedings 29 July 2019 page 43.

[131] Transcript of proceedings 29 July 2019 page 15

[132] Transcript of proceedings 29 July 2019 pages 86-87

[133] Transcript of proceedings 2 November 2018 page 42

[134] Transcript of proceedings 2 November 2018 page 42

[135] Transcript of proceedings 2 November 2018 page 76

[136] Peak Consulting report page 6 of 15

[137] Peak Consulting report page 7 of 15

[138] Transcript of proceedings 2 November 2018 page 57

[139] See, for example, Transcript of proceedings 2 November 2018 pages 61-77

[140] Chessell & Anor v Reynolds [2019] ACAT 20 at [26]

[141] Chessell & Anor v Reynolds [2019] ACAT 20 at [27]

[142] Transcript of proceedings 29 July 2019 page 13

[143] Transcript of proceedings 29 July 2019 page 14

[144] Transcript of proceedings 29 July 2019 page 79

[145] Transcript of proceedings 2 November 2018 pages 6-8, 83-84. Mr Brennan's name was misspelt in part of the transcript as Brendan

[146] Chessell & Anor v Reynolds [2019] ACAT 20 at [16]

[147] Chessell & Anor v Reynolds [2019] ACAT 20 at [16]

[148] Report of C&M Brennan Management Services Pty Ltd trading as CMB Management 9 April 2018 [1.3]

[149] Report of C&M Brennan Management Services Pty Ltd trading as CMB Management 9 April 2018 [3.8]

[150] Chessell & Anor v Reynolds [2019] ACAT 20 at [18]- [21]

[151] Transcript of proceedings 29 July 2019 page 12

[152] Transcript of proceedings 29 July 2019 pages 12-13

[153] Transcript of proceedings 29 July 2019 page 66

[154] Transcript of proceedings to November 2018 pages 4-7, 24-25, 79-83, 89

[155] Document AJ in the materials provided by the Chessells

[156] Document AN in the materials provided by the Chessells

[157] Transcript of proceedings 29 July 2019 page 9

[158] Transcript of proceedings 29 July 2019 page 10

[159] Transcript of proceedings 29 July 2019 page 11

[160] Transcript of proceedings 29 July 2019 pages 10-11

[161] Transcript of proceedings 2 November 2019 page 52

[162] Transcript of proceedings 2 November 2019 page 52

[163] Transcript of proceedings 29 July 2019 pages 11-12

[164] Chessell & Anor v Reynolds [2019] ACAT 20 at [32]

[165] Transcript of proceedings 29 July 2019 pages 21-22

[166] Transcript of proceedings 29 July 2019 page 45. See Attachment C page 8 at d. iv

[167] Transcript of proceedings 29 July 2019 page 45-46

[168] Transcript of proceedings 29 July 2019 pages 46-47

[169] Transcript of proceedings 29 July 2019 page 47

[170] Transcript of proceedings 29 July 2019 page 23

[171] Transcript of proceedings 29 July 2019 pages 40-41, Exhibit C page 2 part 5, 6

[172] Transcript of proceedings 29 July 2019 pages 25-26, 35, 41, Attachment B page 12, Attachment C page 3(7)

[173] Transcript of proceedings 29 July 2019 pages 26-27

[174] Transcript of proceedings 29 July 2019 page 32

[175] Transcript of proceedings 29 July 2019 page 48. See Attachment C page 8 at 9.b

[176] Chessell & Anor v Reynolds [2018] ACAT 110

[177] Transcript of proceedings 29 July 2019 pages 69-73

[178] Transcript of proceedings 29 July 2019 pages 73-78

[179] Transcript of proceedings 29 July 2019 page 89

[180] Transcript of proceedings 29 July 2019 pages 89-92

[182] Reynolds v Verma & Anor [2019] ACAT 101 at [311]- [318]

[183] Hussain v Farhmand [2017] ACAT 107 at [41], [42]

[184] Jago v The District Court of New South Wales & Ors [1989] HCA 46

[185] Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at [16]

[188] GP v Mackenzie & Ors [2018] ACAT 96; Wall v Coutts [2019] ACAT 104