His Honour then referred to provisions in the Administrative Appeals Tribunal Act (s.33(1)(b)) equivalent to s.28(3) of the CTTT Act. His Honour concluded, at p.343 (10):
"A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment … that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a Tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506. In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled."
- Applying these principles to the present case, it seems to us that that the Tribunal should have adjourned the proceedings. The appellants did not have notice of the hearing, did not have the documents submitted on their behalf by the Agent for the purpose of the hearing and did not have other evidence to which the appellants wished to refer. In short, Mr Roach was unable to proceed in the absence of this material.
- The appellants were placed in this position because the failure of the Agent.
- The transcript does not suggest that the Tribunal identified the documents Mr Roach's agent had submitted and it is unclear from the reasons the use to which the Tribunal put to these documents. There appears to have been no discussion about the content of this evidence nor was Mr Roach given a chance to rely on the material provided by the Agent or to make submissions about its contents. Consequently, the steps taken by the Tribunal did not ameliorate the effect of any disadvantage to the appellants.
- The disadvantage to the appellants in not having documents available to Mr Roach is demonstrated by at least one part of the decision of the Tribunal. This relates to the award of $624 made in respect of the balcony door.
- Mr Roach had given oral evidence about this matter in the proceedings at first instance. This evidence was to the effect that Mr Bob White, handyman, had attended the premises and had carried out repairs to the door.
- In its reasons in respect of the door not operating correctly the Tribunal rejected oral evidence given by Mr Roach concerning whether repairs had been carried out. The Tribunal said (Transcript at 01:48:07 p. 56):
The landlord did claim that he did send a handyman Bob White out to fix the roller doors in November 2017, but there was no supporting evidence … to satisfy me that that had occurred. So I'm … not. I'm satisfied [it] remained unfixed until … the 12th of November 2020, and therefore I do make an award with respect to that because that's an ability to access the property via door doors.
- On appeal, Mr Roach said he had an invoice from Bob White Home Handyman & Maintenance demonstrating work was done. This invoice (found in Packet 2 p 12) was provided to the Appeal Panel and indicates that repairs to the door had in fact been carried out in 2017.
- Whether such material would ultimately have led to dismissal of the respondent's claim is unnecessary to decide, particularly as the respondent has not had a chance to respond and cross examine the relevant witnesses. However this material is sufficient to conclude that there has been a relevant error causing disadvantage which should be corrected.
- In our view, an adjournment should have been granted in the circumstances of this case and the appellants have not been afforded a reasonable opportunity to be heard. Consequently, it is appropriate to set aside the orders of the Tribunal and remit the hearing for rehearing.
- The problems arising in this case arose, in part, from the failure of the Agent to properly represent the appellants, keep the appellants informed of the directions, review notices from the Tribunal and ensure that the appointed representative attended on the day of the hearing. We will therefore make an order revoking leave for the appellants to be represented by the Agent.
- Finally, during the hearing of the appeal, submissions were made by both parties concerning what occurred during the tenancy. There was significant disputation about factual matters including what repair work was done, who did that work and when. There were also issues raised as to the credibility of each of the parties, in part based on conversations said to have taken place with third parties engaged by the appellants to carry out repair work. It would seem from the transcript that both parties gave oral evidence concerning these matters. This was despite directions having been made for such evidence to be provided in the form of written statements. It would also seem that the third party witnesses did not provide evidence of these events. This has led to circumstances where each of the parties have been confronted by allegations made in oral evidence about which they have been unable to respond or provide corroborating documents or statements from relevant witnesses to support or rebut various allegations.
- We will make directions so that the proceedings can be returned to the Division and refixed for hearing as soon as possible without the need for a further directions hearing. These directions will provide for all witnesses, including the parties, to provide their evidence by way of statutory declaration, signed statement or appropriate expert report. Witnesses should be available for cross-examination.
- If possible, the rehearing should be conducted in person or by video link. However if this cannot be achieved due to pandemic, the hearing should take place by telephone so that the dispute can be finalised.