Application to set aside the orders of 4 October 2018

1. The respondent's interim application to set aside the directions made on 4 October 2018 mirrored his application in Chessell to do likewise in relation to the procedural directions made on 17 August 2018, as amended on 13 September 2018. As detailed in my reasons for decision in Chessell, to set aside the directions including vacating the hearing date would have been a very significant step. The Tribunal is a forum established and run at public cost to enable small claims to be resolved as quickly as is consistent with achieving justice. In this case, as in Chessell, I was not persuaded that I should do so.
2. The respondent's application to vacate all the directions including the hearing date was based on the same claims that he made in support of his application to vacate all the directions in Chessell. As I said in that matter, two difficulties arose. First, for the reasons I gave in that matter, the claims were baseless, hence orders 2 and 3 in this matter that were similarly made in Chessell. Secondly, for the reasons I gave in that matter, if the respondent wished to pursue the issues set out in his interim application, per the proposed orders in paragraphs 12(c)-(f) above, he should have done so months before.
3. Consistent with my conclusion and reasons for it in Chessell[9] which need not be repeated here, I was satisfied that the orders in the interim application were sought only to further the respondent's and/or Mr Polleycutt's endeavour to delay and avoid rather than respond to the substance of the claim. Consistent with my conclusion in Chessell, I accept that to have vacated the hearing date would have caused the applicants considerable distress and frustration.
4. Having regard to the applicants' case against him, I can understand why the respondent chose the path of procrastination, avoidance and delay. The applicants' evidence included a detailed building inspection report from Mr David Fisher of Smith & Sons, a licensed builder, detailing the many defects in the respondent's work. Mr Fisher stated that the windows and doors do not conform to Australian Standards and that the windows and doors "should never have been installed into an Australian family home". He included photographs that comprehensively illustrated defects in the windows and doors and in their installation. He gave quotes totalling between $20,000 and $60,000, depending on the scope of the rectification work.
5. In all, consistent with my conclusion in Chessell, I concluded that to have set aside the Tribunal's orders made on 4 October 2018 would have defeated a fundamental object of the Tribunal's civil jurisdiction, namely to resolve small claims as quickly as is consistent with achieving justice. The respondent had, by his conduct, made clear that he had no intention of defending the substance of the claim brought against him and instead intended to avoid the claim as best he could.
6. In Chessell I referred to the decision of the ACT Supreme Court, per Burns J, in Group Konstrukt Pty Ltd v Arrow International Australia Ltd,[10] in which his Honour commented with reference to the High Court's decision in Aon Risk Services Australia Ltd v Australian National University[11] upon the importance of timeliness in the administration of justice and the efficient use of courts and tribunals as a public resource. My comments in Chessell with reference to those decisions are equally applicable to this case.
7. Applying these principles, I concluded that the respondent's application for an order that the Tribunal's orders made on 4 October 2018 be set aside should be dismissed.

1. The first part of the respondent's interim application in Chessell was for an order setting aside the Tribunal's order made on 15 October 2018 removing Mr Polleycutt as his representative. I gave reasons for my decision to dismiss that part of the respondent's interim application.[12] At its core, I was satisfied that Mr Polleycutt's representation of the respondent was inconsistent with the objects of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), section 6. His conduct amounted to overt and repeated attempts not to meet the applicants' claim, but to avoid and delay its resolution.
2. Whilst Mr Polleycutt's particular actions in this case were different, the character of his representation of the respondent was materially the same. I give some examples.
3. First, the respondent's earlier interim application made on 23 July 2018 seeking an order that the applicants' claim against him to be struck out as an abuse of process was, in my view, itself an abuse of process.
4. The contention that Mr Rees should be joined as a co-respondent to a claim made by Mr Rees' wife against the respondent, where there was no suggestion that the applicant had any claim against her husband, was perverse. That Mr Rees be joined as a second applicant, he being a party to the contract with the respondent, was ordered by consent. It never needed to be the subject of an application.
5. The contention that the Tribunal does not have jurisdiction to order payment of interest and the filing fee, in addition to damages to its statutory limit of $25,000, was baseless. As the Tribunal noted in its reasons for decision,[13] the ACAT Act clearly provides for payment of interest and the application filing fee in addition to damages up to the jurisdictional limit. In any event, as I noted in Powley, an applicant can claim what they wish. What matters is what the Tribunal orders and whether the orders are, or would be, within power.[14] In relation to a limit on the quantum that can be awarded, it is a question for resolution at the end of a proceeding, not a basis to strike out a claim.
6. Secondly, in Attachment C to the respondent's interim application, the respondent did not respond to the applicants' claim. Instead, Mr Polleycutt made claims that in a court application (pleading), in my view, would be struck out as scandalous and vexatious.[15]
7. For example, Mr Polleycutt contended that the applicants' claim was caused by the interference of Mr and Mrs Powley and Mr and Mrs Chessell by them "spamming defamatory content" and that the respondent reserved the right "to consider formal charges of blackmail". He contended that Mr Rees who received "these devious natured communications ... must have had reasonable cause to make him suspect such defamation ... [and] instruct the Respondent he terminated the contract between them as a result". He contended that Mr Rees "has chosen to either withhold relevant information from Mrs Kavita Verma in his addition to the Application or Mrs Kavita Verma has knowingly, and carelessly with wilful disregard to her professional ethics and responsibilities as a Learned registered legal professional and or Public Servant deliberately and intentionally failed to acknowledge disclose or produce the report MR Will Rees paid for the production of that received by Him in the matter" (errors in original).
8. In Chessell I commented upon the obligations of a person who is representing a party in proceedings, particularly the obligation to present the party's case in a proper, constructive manner that furthers the objects of the ACAT Act.[16] Rule 8(3)(c) of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) permits the Tribunal, by order, to stop a representative from taking any further part in a proceeding where the representative's representation is inconsistent with the objects of the ACAT Act.
9. In Chessell I concluded that Mr Polleycutt's representation of the respondent was inconsistent with the objects of the ACAT Act, and he should therefore be stopped from representing him. Where Mr Polleycutt's conduct in representing the respondent in this case was materially the same, I concluded that in this case also he should be stopped from representing the respondent or taking any further part in this proceeding. I therefore ordered accordingly.

1. The proposed order for access and inspection was, again, in my view no more than a tactic for avoidance and delay. The respondent carried out the work in 2017, and had been on notice of the alleged defects since 12 December 2017, via emails from the applicants sent to him on 12 and 21 December 2017. He had had months to arrange a time to inspect the alleged defects and then to deal with them, by rectifying them or by taking photographs in order to refer the (alleged) evidence of the defects to an independent expert for comment. The application for access to inspect the alleged defects, where a request for access should have been made immediately following the applicants' claim about defects in December 2017 or at least immediately following the applicants' commencement of proceedings in the Tribunal was, in my view, not for the purpose of presenting his case but for the purpose of avoidance and delay.
2. Nevertheless, where I heard the application on 23 October 2018 and the matter was not listed for hearing until 7 December 2018, it seemed appropriate that the respondent still have access by arrangement. At hearing, the applicants were agreeable to the respondent having access for the purpose of inspecting the windows, provided it occurred on an agreed day and time and in the absence of Mr Polleycutt.
3. After discussion with the respondent, who explained that access on an agreed day for an hour would be sufficient for his purposes, I made a note about the time and date on which the applicants would permit the respondent to attend their property for that purpose.

[3] Respondent's Application for Interim or Other Orders filed 17 October 2018

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

[5] Powley & Anor v Reynolds [2018] ACAT 103

[6] Verma & Anor v Reynolds [2018] ACAT 89

[7] The stated matter numbers are incorrect, and are XD 334/2018 and XD 22/2018. Final orders have been made in XD 334/2018: see Powley & Anor v Reynolds [2018] ACAT 103

[8] Final orders have been made in that matter: see Powley & Anor v Reynolds [2018] ACAT 103

[9] [2018] ACAT 107 [45]-[48] and [51]-[52]

[10] Group Konstrukt Pty Ltd v Arrow International Australia Ltd [2012] ACTSC 14 [19]-[22]

[11] [2009] HCA 27

[12] Chessell & Anor v Reynolds [2018] ACAT 107 [25]-[41]

[13] Verma & Anor v Reynolds [2018] ACAT 89 [18] and [24]

[14] Powley & Anor v Reynolds [2018] ACAT 103 [35]

[15] Court Procedures Rules 2006 rule 425(1)(c)

[16] Chessell & Anor v Reynolds [2018] ACAT 107 [23]-[24]