Appeal Tribunal: Presidential Member H Robinson

APPEAL TRIBUNAL: Presidential Member H Robinson

1. This is an appeal from a decision of the tribunal (the original tribunal) of 7 June 2021. The original tribunal ordered the appellant tenant (the tenant) pay the respondent lessor (the lessor) the sum of $173.25, being the amount associated with an infringement notice issued by the Owners Corporation (the charge) for, allegedly, smoking on the balcony, and the tribunal application fee.

2. The crux of the tenant's argument is that he was denied procedural fairness because the original tribunal permitted the matter to proceed to hearing in circumstances where the lessor consistently failed to comply with directions, and then allowed the lessor to call a witness who had not filed a witness statement. He effectively submits that the matter should have been struck out because, on the evidence as filed by the applicant, he had 'no case to answer'.

3. This appeal tribunal delivered its decision dismissing the appeal on 1 December 2021, following a failure by the tenant to attend the hearing. I gave brief reasons on the day. The lessor requested written reasons. Before I could finalise those reasons, the tenant lodged an interim application seeking to have the 1 December 2021 decision set aside so that he could make further submissions. I heard the set aside application on 6 December 2021 (interim application), and also heard the tenant's representative as to what he would have said had he attended the 1 December 2021 hearing. I reserved my decision. These reasons deal with both the substantive appeal, and the interim application.

4. The tenant rented an apartment from the lessor. The apartment is in a unit-titled complex (the complex) established under the Unit Titles Act 2001, and is subject to the governance regime set out in the Unit Titles (Management) Act 2011 (UTM Act), whereby an owners corporation (OC) elects an executive committee (EC) that appoints a manager (the manager) to manage the day to day affairs of the owners corporation.

5. Under that UTM Act, owners corporations have 'rules' that govern the conduct owners and residents.[1] Tenants are also bound by those rules, although they need not comply to the extent that the rules are inconsistent with the standard terms set out in Schedule 1 of the RT Act.[2] A lessor is liable separately and together with a tenant for any breach of the rules by the tenant, unless the owner proves that they took reasonable precautions and exercised appropriate care to prevent the breach.[3] Where an owner or occupier of a unit breaches a rule, the OC may, by resolution of the executive committee, issue an infringement notice requiring the person to remedy the situation.[4] A failure to comply with an infringement notice is an offence.[5]

6. The OC rule that the tenant is alleged to have breached provides that owners and residents are not to smoke on their balconies, or allow smoke to permeate into common areas:

(a) A Unit Occupier must not smoke any cigarette, cigar or other product on the Common Property, basement car parks, balconies or on any other part of the Building where smoking is not permitted.

(b) Smoke from smoking inside a Unit should be contained within the Unit and should not permeate into the common areas external to the Unit where it can cause a nuisance to other residents. (rule 17)

7. The lessor's evidence was that the EC and/or manager received complaints from other residents of the complex about people smoking on their balconies. They investigated and concluded that the tenant had been smoking on his balcony. The OC then purported to issue a so-called "charge" of $173.25 by way of a special levy against the lessor for an alleged breach by the tenant (the charge). The lessor paid the charge and sought to recover that amount from the tenant.

8. Throughout these proceedings the tenant was represented by an authorised representative, Mr Greg Thomas, who he had appointed under a power of attorney. The respondent was represented by Mr Mitchell Cross, a real estate agent. Neither representative is a legal practitioner.

9. The appeal was conducted by way of a rehearing[6] on the material before the original tribunal and any new evidence admitted pursuant to section 82(b) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act).

10. By way of the original application dated 6 April 2021, the lessor commenced proceedings against the tenant seeking several orders, including a termination and possession order pursuant to section 49 of Residential Tenancies Act 1997 (RT Act), and compensation for loss caused by a breach of the residential tenancy agreement under section 83(1)(d) of that Act.

11. The lessor's representative lodged the application with a bundle of supporting documentation, including a notice to remedy. Neither the invoice for the charge nor the receipt for payment were amongst the documentation.

12. The application was listed for hearing on 20 April 2021 in the termination and possession list. The termination and possession list is a high-volume list, sometimes with two or more hearings an hour. Many matters listed are heard and determined on the day, on the evidence filed. Others are adjourned to a latter termination and possession list or, where they are especially complex, to a special listing. In those cases, directions may be made for filing of additional evidence.

13. On 15 April 2021 the lessor filed a further bundle of documents. Amongst these was a document in the form of a letter signed by Ms Natasha Brookes, on behalf of the strata manager (the complaint summary letter). The complaint summary letter states that "[w]e have received reports of the tenants in Unit 410 at Siena smoking on their balcony." It then contains a list of dates upon which each complaint was received, and a brief extract from the complaint. For example:

18/11/2020 - We are having lots of issues with people smoking on their balconies.

19/11/2020 - It's happening again tonight meaning we can't keep the doors open.

30/11/2020 - They are smoking again. It's unbearable and one of us has severe asthma and this could trigger it.

14. The complaints summary letter lists some seventeen complaints in total. The name or unit numbers of the complainants whose complaints were summarised are not included, and nor are copies of the original complaints, redacted or otherwise. It is unclear from the document which of the complaints, if any, specifically referenced unit 410 in their complaint. None of the extracts specifically names the tenant or states a unit number from which the smoke is allegedly emanating.

15. Shortly before the first hearing day of 20 April 2021 (the first hearing) the tenant sought an adjournment to prepare. That request was administratively denied.

16. The Tribunal's Rules do not require the respondent to a residential tenancies application to file a response prior to the hearing. However, on the morning of the first hearing, the tenant lodged a brief response and counterclaim for an amount of $7,562.50 for breach of quiet enjoyment (the counterclaim).

17. At the first hearing the tenant opposed both the making of the termination and possession order and any order that he pay the charge. Mr Thomas made a series of representations about the infringement notice, including a submission that the smoking rule was unlawful and unenforceable. He also suggested several other causes for the reported smoke but offered no evidence in support of these contentions. Mr Thomas appears to have considered it unnecessary to so, as it was the lessor who would need to "prove ... on the balance of probabilities that it was, in fact, Mr Whittman's continued cigarette smoking and not any of the other potential causes to evict him...".

18. Having heard the parties, the tribunal determined to adjourn the matter to allow the parties to file further evidence.

19. Before adjourning, the Senior Member presiding at the first hearing advised the lessors' representative, Mr Cross that:

The only sensible course really would be to have this matter stood over and listed for a more extended hearing at another time and at that hearing it would be necessary for you to bring forward evidence in support of the contentions that you've made in your application; to have witnesses available to give evidence relating to the matters you've covered in your application and to advance documentation in support of it.[7]

20. Mr Cross submitted in response that some witnesses were reluctant to come forward because they were frightened of the appellant. The Senior Member advised him of the availability of non-publication orders under section 39 of the ACAT Act.

21. At the conclusion of the hearing the tribunal then made directions to prepare the matter for hearing. These included a direction that the lessor:

...give to the Tribunal and to each other party by 5:00 pm on 4 May 2021 ... a written statement by every witness who the applicant will call to give evidence at the hearing.

22. These are standard directions. An similarly worded order was made for the tenant to file a response to the application and evidence, including witness statements and other documents relied upon at hearing, by 18 May 2021. The matter was listed for further hearing on 7 June 2021 and the parties notified accordingly.

23. During the period between the first directions hearing and the second, the parties resolved some of the issues between them, so by the time the matter came on for final hearing, the remaining issues were a claim for $20 unpaid rent, and the cost of the infringement notice, quantified at $173.25, and the reimbursement of the application fee, as well as the counterclaim.

24. As to compliance with the directions made on 20 April 2021, the lessors did not file any witness statements nor any further documentation by 4 May 2020. They did file further evidence on 19 May 2021, including a rent ledger and some brief points that can be taken as submissions, but no witness statements. During the period between 4 May 2020 and 19 May 2020 the tribunal was, perhaps unnecessarily, copied into some correspondence between the parties. On the basis of this material, it appears that the reason for the delay was that the parties were in negotiations. Those negotiations fell apart on or about 7 May 2021. On 8 May 2021 the tenant's representative advised the tribunal by email that the respondent had not complied with the directions of 20 April 2021. The tribunal made enquiries of the parties. The resulting correspondence between Mr Thomas and Mr Cross was escalated in tone and unhelpful, but it is apparent the delays in filing were because the respondent, at least, thought the matter would settle. Given the amount in issue, this was not an unreasonable assumption.

25. The lessors finally filed their documentation on 12 May 2021. This consisted of an email updating the tribunal on the current circumstances of the tenancy, a claim that the lessor was attempting to obtain a police report (the relevance of which is entirely unclear), and a response to the counterclaim. It also contained the following passage:

Daniel Leskovek of Vantage Strata is prepared to be called to give his version of events as the strata manager.

26. Notwithstanding the tribunal's directions requiring that they do so, the lessors did not file a witness statement from Mr Leskovek, nor set out the evidence he was going to give.

27. The tenant filed his response on 19 May 2021. It was primarily in the form of a submission prepared and signed by Mr Thomas. The submission again raised the question as to whether rule 17 was invalid. It also attaches several documents, including what is asserted to be a photograph of a cigarette butt on a balcony of a unit around the corner from the tenant's, in support of an assertion that the smoke may have travelled "around the corner, as well us up from Peddler's [a nearby bar]". The submission further states that the tenant smoked meat on his balcony (described as a "German cultural practice"), and that this may have been mistaken for smoking cigarettes. There is no witness statement in support of these contentions, whether from the tenant or anyone else. As best as I can determine, no evidence was filed in support of the respondent's proposed counterclaim. It appears from the transcript of the original hearing that the counterclaim was ultimately not pressed.

28. The substantive hearing proceeded as listed on 7 June 2021 before a differently constituted tribunal.

29. Shortly after the commencement of the hearing, the lessors' representative provided, at the request of the tribunal, a copy of the infringement notice invoice. Mr Cross explained that he had not filed it earlier due to an "oversight". When asked as to whether there was any other evidence, he explained that none of the other residents were prepared to put their complaints in writing for the tribunal.

30. Once the hearing commenced, the presiding senior member undertook a process to clarify arguments and evidence before the tribunal. As part of this process, the senior member asked for clarification as to whether the tenant was denying that he had smoked on the balcony:

SENIOR MEMBER: ...Does the tenant dispute that they are, or were, in breach of the Owners Corporation rules with regard to smoking on the balcony? This is a question for Mr Thomas.

MR THOMAS: Yes, I'm instructed that Mr Wittman disputes that fact.

SENIOR MEMBER: So he says he doesn't - he didn't smoke on the balcony?

MR THOMAS: He's now vapes with an electronic - - -

SENIOR MEMBER: Now he has, but did he ever, at the relevant time when this correspondence is going back and forward, did he smoke on the balcony?

31. The tenant had not denied smoking on the balcony in the material filed with the tribunal

32. The lessors' representative called Mr Leskovek to give evidence by telephone. Mr Thomas did not object to Mr Leskovek giving evidence, but did raise concerns about the difficulties he had cross-examining the witness. For the most part, Mr Leskovek's evidence in chief consisted of references to documentation that was held by the strata manager but was not filed with the tribunal nor cited by it. Amongst other things, Mr Leskovek conceded that he had not personally witnessed the appellant smoking, and nor had anybody else. The following extracts give the general tenor of his cross-examination:

MR THOMAS: Yes. Did anyone see Mr Wittman smoking?

MR LESKOVEK: Based on what I've received there, one or two people who referenced that the unit nearby was smoking and - - -

MR THOMAS: Did anyone see Mr Wittman smoking though?

MR THOMAS: Okay. Now, you've referenced a lot about the unit below. Was there more than one unit involved in these complaints, or just the one?

MR THOMAS: Several. Okay. And how did they come to the conclusion that it was, you know, some - there was some dispute whether it was beside of below. How was that narrowed down?

MR LESKOVEK: We asked them to provide us with - or to double check their own facts, provide us with any information they had to confirm the details. It was of some concern, and I do believe there would have been some mention that they've seen the - the unit smoking, so I'm trying to go through my emails at the moment.[9]

33. Additionally, Mr Leskovek seems to have been reviewing documentation as he gave evidence. Eventually, he identified a document that indicated that a complainant had seen the tenant smoking, but not on his balcony:

MR LESKOVEK: Okay, 'Family at apartment 5 - this particular unit. Saw them working in their vehicle, so we know they smoke.'

MR LESKOVEK: Well, in that particular email, they said, 'We have seen them smoking in their unit - in their' - not in their unit, in their vehicle, which doesn't help with the balcony issue.

SENIOR MEMBER: Okay. So, sorry, were you able to answer Mr Thomas' question about whether anybody actually saw Mr Wittman smoking?

MR LESKOVEK: Not that I can confirm right at this time, apart from what people have advised and reported that they've noted the unit nearby smoking.

SENIOR MEMBER: Okay. Did that answer your question, Mr Thomas?

34. This document was not filed with the tribunal, and in the circumstances it could not be readily handed up nor marked for identification.

35. Mr Leskovek conceded that the EC had received complaints about other people smoking in the complex, although not in the vicinity of tenant's apartment, and that the complaints had commenced in November 2020. The tenant moved into the complex in March 2020.

36. That, along with some documents, concluded the lessor's case.

37. The tenant's case consisted of the submission and attached documents. The tribunal then enquired of Mr Thomas as to whether the tenant was available and invited him to give evidence. The tenant agreed. Neither Mr Thomas nor Mr Cross raised any objection.

38. The tenant had not filed a witness statement, and nor did Mr Thomas lead any evidence from him. Rather, his evidence commenced with cross-examination by Mr Cross, who asked only one question:

MR CROSS: Well, I guess the first would be, did you ever smoke on the balcony?

MR WITTMAN: Well, thank you, Mr Cross. That's the very first time you've ever bothered to ask me that question. All the other times, you've only deliberately accused me. The answer to your question is no, because I take my vape in - before I even moved in there, you'll notice that these whole things, smoking, only ever came up after I had asked you for rental receipts.

SENIOR MEMBER: Okay. So that's the answer to that. Are there any other questions that you have with regard - for Mr Wittman, Mr Cross?

39. Mr Thomas did not ask any questions in re-examination. That concluded the tenant's evidence.

40. Following this, both parties then given an opportunity to make submissions. The tribunal reserved over the lunch break and delivered an oral decision.

41. The relevant part of those reasons was as follows:

In relation to the claim for the rule infringement charge that the owners paid, the only issue really in dispute was whether or not the tenant had smoked on the balcony in breach of the rules. The lessor said he did and relied on the evidence of the strata manager who had recorded a lot of complaints from nearby unit owners. And I found that on the balance of that evidence, although the tenant's representatives did put some strong arguments to say there were other plausible reasons for what the other owners were experiencing, on the balance I found that the scales were tipped, just slightly, in favour of the lessor.

And that is really the onus that needs to be satisfied that it is more probable than not, and I thought it was just more probable than not, weighing up what each party's representative had said that the tenant had breached the rule and as a result the owner had suffered loss, being the incursion of that special levy which reflected a charge for a breach of the rules.[12]

(3) The tenant is to pay to the lessor by 5 July 2021 the sum of $173.25 compensation for the lessor's loss arising from the tenant's failure to comply with the owners corporation smoking rule. So they are the orders in regard to the claim.[13]

43. In the application for appeal, the tenant states the grounds as follows:

The [respondent's] failure to tender evidence ahead of the hearing in accordance with an ACAT order made on 30 April 2021. On 5 May 2021 [the] ACAT sent orders via email made on 30 April 2021 which ordered amongst other things that the applicants provide by 4 May 2021:

On 8 May 2021 I advised the ACAT that I had not received the [respondent's] material.

At no point prior to the hearing held 7 June 2021 did I receive any of the material outlined above. This led me to believe that the...applicant did not wish to contest the matters. The applicant's failure to comply meant that I was not able to prepare an adequate defence, as it appeared there was no case to answer. Furtherl [sic] the applicant's failure to provide a witness list or statements led to the introduction of surprise witnesses at the hearing. The left [us] very much on the back foot and did not facilitate the preparation of an adequate defence and appeared at odds with the notions of procedural fairness.

44. The tenant's grounds of appeal were clarified in his written submissions filed 6 September 2021. They may be summarised as follows:

(a) The lessors' continual failure to file evidence in compliance with the tribunal's direction constituted a breach of the lessor's obligations under section 7A of the ACAT Act and its obligations to the tribunal, and accordingly the lessor's application should have been struck out (the compliance with directions argument).

(b) The lessors' failure to provide documents in accordance with directions and the introduction of a 'surprise' witness during the hearing meant that the respondent did not have a reasonable opportunity to present his case (the procedural fairness argument) - in support of this the tenant noted the comments of the presiding member at the first hearing.

(c) More broadly, the original tribunal's conclusions are not supported by the evidence (error of fact argument).

45. The tenant also submitted that this matter raised "an issue of public importance" and that the matter should be referred to the Supreme Court, but did not press that argument or seek removal of the matter at the hearing.

46. The tenant lodged his appeal on 2 August 2021. It was one day out of time, but the lessor did not object to an extension of time.

47. The appeal was listed for a directions hearing on 23 August 2021. At that hearing, the tribunal made the following directions:

1. The appeal is listed for hearing on 7 September 2021 at 10:00am by Webex and will proceed by way of rehearing on the material before the Tribunal and any new evidence admitted.

2. If either party wishes to rely on any further evidence at the hearing, a copy of that evidence is to be filed and served by 31 August 2021. The admission of the new evidence will be considered at the hearing.

48. Neither party filed any additional evidence in accordance with the directions.

49. The tenant filed written submissions on 6 September 2021, as well as a copy of his previous submissions of 15 April 2021. These written submissions more clearly articulate its ground of appeal and I have set out parts of them below.

50. The lessor filed a further evidentiary document on 7 September 2021 - that is the morning of the hearing. Given how late it was filed, I have had no regard to it. The respondents' representative did not file written submissions but did make oral submissions at the appeal hearing. In summary, the lessors' position is:

(a) The complaint summary, prepared by Ms Brookes, set out when the OC had received complaints from different residents of the building should be taken as the lessors' submissions, together with the other evidence filed, including the notices to remedy and emails.

(b) There was no need to file a witness statement from Mr Leskovek, as he would only be repeating what Ms Brookes said:

MR CROSS: Yes I, well, I mean, I could have named it a witness statement at the top, and again he would only have repeated exactly what was written on the evidence that he had already provided.[14]

(c) There was "overwhelming evidence" that the tenant was "smoking, whether it's vaping or smoking, on the balcony ... without question".[15]

51. After hearing from the parties, I reserved my decision. I advised the parties that I would order and review the transcript of the first directions hearing, which I did.

52. After I reserved my decision, I became aware of another issue that had not been ventilated at the appeal hearing - that the tenant had not, prior to the substantive hearing, raised as a ground of defence that he did not smoke on his balcony, and nor had he filed a witness statement. This gave me some cause for concern as to whether any 'practical injustice' could arise from the Senior Member allowing a witness to give evidence in a circumstance where the tenant himself had neither fully set out his grounds of defence, nor filed any evidence in support of them in advance of the hearing. I set the matter down for a directions hearing, and at that hearing I outlined my concerns and offered both parties the opportunity to make submissions in response. The appellant's representative requested an adjournment to consider his position, and so I relisted the matter on 1 December 2020, when I proposed to hear final submissions on this issue.

53. Neither the tenant nor his representative attended the 1 December 2020 hearing. While this was surprising, I declined to adjourn the matter again. In reaching this decision, I formed the view that the interests of justice, both to the parties and to the justice system, could not justify a further adjournment. Amongst other considerations, the matter in dispute was not large and was indeed exceeded by the appeal fee. The tribunal had already borne the cost of acquiring the transcripts of the termination and possession hearing, the original hearing and the appeal, as well as the costs of conducting the hearings. Both parties were represented by paid representatives, and each further hearing cost them more. The resources expended were already grossly disproportionate to the quantum in issue. Accordingly, at 10:10am, I proceeded to determine the matter without the benefit of Mr Thomas' further submissions (the ex parte decision). I delivered brief oral reasons on that day.

54. Shortly thereafter, the tenant's representative filed a second interim application seeking to set aside the ex parte decision. The interim hearing was listed for 6 December 2021. It is to that I now turn.

The second interim application and interim hearing

55. At the interim hearing on 6 December 2021 Mr Thomas explained that he had relied on an older invitation and had logged into the wrong 'Webex' room. He said that he contacted the tribunal shortly after that became obvious. Registry has advised me that Mr Thomas contacted the tribunal at around 10:20am.

56. The tribunal's power to set aside the orders made on 1 December 2021 is found in section 56(c) of the ACAT Act which states, relevantly, that:

(c) amend or set aside a tribunal order if-

(i) the order was made after hearing an application in the absence of a party; or

57. Rule 70(7) of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (the Tribunal's Rules) provides that:

In considering whether to set aside a final order made in the absence of a party, the tribunal must take into account the following:

(b) whether it might have made a material difference to the outcome if the party had attended;

(c) anything else the tribunal considers relevant.

58. As was observed by Presidential Member McCarthy in Powley & Anor v Reynolds[16] at [30]:

Whilst the power to set aside an order made in the absence of a party (or ex parte) is stated at large, the Tribunal exercises the power only where it is in the interests of justice to do so. It must be exercised "reasonably and rationally, having regard to the area of jurisdiction in which the tribunal is sitting." Factors such as the reason/s for why the party was absent, whether their attendance would have made any difference to the outcome and the time that has passed between when the orders were made and the filing of the application to have the orders set aside are all relevant.

59. In relation to the reason for the absence, the tenant's representative appears to have made a genuine mistake. Once he realised, he acted quickly. This is a reason to set the decision aside. Against this are the concerns about proportionality noted above, and the question of whether the tenant's submissions would have made any difference to the outcome.

60. Ultimately, I decided to hear Mr Thomas as to the submissions he would have made had he attended the 1 December 2021 hearing, and to reconsider my decision and reasons in light of those submissions. I advised the parties that if I was convinced by the tenant's arguments and considered the outcome would have been different had the tenant or his representative been in attendance, I would set aside the ex parte decision and remake it, taking into account the tenant's submissions. I would not, however, set aside the ex parte decision if the submissions would have made no difference to the outcome. On that basis, I reserved my decision on both the interim application and, in effect, on the substantive hearing.

61. This is an application for appeal under section 79 of the ACAT Act. This section provides that:

_(1) This section applies if - _

(a) the tribunal has decided an application (the original application); and

(b) the original application was not an appeal from a decision by the tribunal.

62. As is the usual course, this appeal was conducted as a 'rehearing', or a review of the decision on the material before the original tribunal, and any additional evidence admitted with leave of the tribunal. In Mansour v Dangar,[17] the tribunal explained the role of the appeal tribunal in such an appeal as follows:

[F]or a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal's findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal's primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal is not at liberty to interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion. [Footnotes omitted]

63. In other words, while the appeal tribunal must do a full review of the hearing process and outcome, its role is the correction of error, not merely substituting its opinion for that of the original tribunal.

64. With that in mind, I turn to each of the tenant's arguments.

The applicants' failure to provide a lawful reason for withholding the respondent's bond resulted in the mediation not to be able to proceed which represented a failure by the [lessors] to comply with the principles of the ACAT.

The applicants' failure to comply with the ACAT Directions of 20 April 2021 to provide to the tribunal and the respondent the material the applicants were directed to provide constituted a breach of the applicants' obligations under section 7A to uphold the tribunal's principles.

_In exercising its functions under this Act, the tribunal must - _

_(a) seek to ensure the procedures of the tribunal - _

(i) are as simple, quick, inexpensive and informal as is consistent with achieving justice; and

(ii) are implemented in a way that facilitates the resolution of the issues between the parties so that the cost to the parties and the tribunal is proportionate to the importance and complexity of the subject matter of the proceeding; and

(b) observe natural justice and procedural fairness.

_Each party to a proceeding, their authorised representative and anyone else accompanying the party or allowed to participate in the proceeding has a duty - _

(a) to cooperate with the tribunal to give effect to the tribunal principles mentioned in section 7; and

(b) to comply with the Act and any directions.

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation or rules (see Legislation Act, s 104).

68. Section 7A imposes on the parties and their representatives a positive duty to cooperate with the tribunal and comply with directions. One of those directions was a direction to file a witness statement from any person called to give evidence at the hearing. The lessors plainly did not do this. They also filed documents late. The lackadaisical attitude of the lessors, or their representative, was a breach of their obligations to the tribunal as set out in section 7A of the ACAT Act.

70. A party's failure to comply with a procedural requirement does not invalidate the proceedings. This is made clear by rule 59 of the ACAT Rules, which provides that:

(1) Failure to comply with a procedural requirement for an application is an irregularity and does not make a proceeding, or a document lodged, step taken or order made in the proceeding, void.

(2) If there has been a failure to comply with a procedural requirement, the tribunal may make any order dealing with the proceeding or the application that it considers appropriate.

Note The Act, s 56 (d) applies.

1 If the defaulting party in an application is the applicant, the tribunal may dismiss the application, extend the time to comply with the procedural requirement that has not been complied with or give further directions.

2 If the defaulting party in an application is the respondent, the tribunal may decide the application, extend the time to comply with the procedural requirement that has not been complied with or give further directions.

(3) The tribunal may make an order under subrule (2) on application by a party or on its own initiative.

Note Rule 62 (Interim and other orders) applies to an application.

71. Where there has been a breach, the tribunal has a range of mechanisms available to it under the ACAT Act, both in the general powers in sections 56 and a specific power in 74(2), which provides:

(2) If a party contravenes subsection (1), the tribunal may do 1 or more of the following:

(a) order the person to pay to the Territory a stated amount (not more than any amount prescribed by regulation);

(b) if the party is the applicant - strike out the application in relation to the dispute;

(c) if the party is the respondent - make an order in favour of the applicant.

72. The tribunal may strike out proceedings under section 74(2)(b) on an application by a party or on its own initiative where a party fails to comply. However, a strike-out is not the only option, and not always the most efficient or appropriate one.

73. The tenant lodged an interim application seeking dismissal of the claim on 15 April 2021. As I understand the tenant's position, he expected his application for dismissal to be heard first, and for the proceeding to be dismissed accordingly. As such, he did not believe it would be necessary to file any serve any evidence for the substantive hearing, such as witness statement.

74. Unfortunately for the tenant, the timeframe did not permit the interim application to be heard before the substantive hearing, which had been listed for 20 April 2021, five days later. The matters were listed together, and it was therefore a matter for the tribunal to determine how to best hear both. As it happened, the strike-out was ultimately not considered independently of the substantive resolution of the matter, which proceeded to hearing.

75. Procedural decisions such as this are discretionary decisions by the tribunal. As was observed by the High Court in House v R[18] (Dixon, Evatt and McTiernan JJ) the scope for appealing discretionary decisions is limited, and only in rare cases would the appeal tribunal intervene:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion.

76. In other words, it is not enough that the appeal tribunal would have done something different to the original tribunal. The appellant must show that the original tribunal was in error.

77. The tribunal's obligations under section 7 of the ACAT Act require that it be simple, quick and inexpensive, and that it take a proportionate approach to the proceedings, having regard to the importance and complexity of the subject matter of the proceeding. Applying those principles, this was a small claim that did not, as argued, raise any complicated question of law. It was entirely appropriate that the original tribunal proceed to hear the substantive matter, especially given the commonality of issues between the dismissal application and the substantive case. There was no error in the exercise of discretion.

78. The decision to allow the lessor's witness to give evidence is a more complicated matter, and one I consider below in the context of whether the original tribunal's approach resulted in a breach of procedural fairness. However, at the abstract level, there is no error in permitting the witnesses to give evidence, despite not having filed witness statements. A tribunal is not a court and may inform itself in any way it considers appropriate in the circumstances.[19] Its overarching obligation is to inform itself in a way that ensures procedural fairness is provided. Whether that happened in this case is considered below.

79. Before moving on, it is worth noting that some of the tenant's arguments about what the tribunal should or should not have done appear to be influenced by what he, or his representative, understand to be the practice of courts. Proceedings in courts are inherently adversarial in nature, with the scope of issues defined by the parties. Tribunals, even when exercising civil jurisdiction, may take a more inquisitorial approach to hearings than a Court.[20] Just how interventionist a tribunal should be in civil disputes raises complicated issues that need not be addressed here. However, for present purposes, the approach was usefully discussed by the NSW Residential Tenancies Tribunal in Bates v Port Stephens Holiday Park Pty Ltd (1996) NSWRT 208[21] as follows:

The Tribunal does not in practice sit back and wait as parties attempt to do their best. It advises; it raises issues, asks questions and suggests hypotheses. Within the framework of natural justice and conventional legal procedures it actively intervenes in an attempt to adduce the relevant evidence which it finds to be admissible. The words of Deane J in Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 342 are apposite:

In the ordinary case, a tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues and to permit the parties to present their respective cases in the manner which they think appropriate. Circumstances may, of course, arise in which such a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner in which a particular party wishes to present his case.

80. The approach by the original tribunal, to define and deal with what it identified as the 'real issues' in the proceeding is consistent with the quasi-inquisitorial role of the tribunal, and the tribunal's duties under section 7 of the ACAT Act.

81. That said, I acknowledge the tenant's frustration at the process. A differently constituted tribunal may have approached the matter in a different manner. However, that does not mean that the tribunal's decision to proceed the substantive matter was in error. This ground of appeal is not made out.

82. Notwithstanding that a procedural decision is legally appropriate, it may still result, in practice, in a breach of procedural fairness that gives rise to a ground of appeal.

83. A practical failure to accord procedural fairness will constitute an error of law.[22]

84. The question in this case is not whether the obligation to give procedural fairness existed, but whether it was met.

85. Procedural fairness incorporates two elements: the fair hearing rule and the rule against bias. It is the former that is asserted in this case. The fair hearing rule requires a decision-maker to disclose 'critical issues' to be addressed and information that is credible, relevant and significant to the issues, and to afford a person an opportunity to be heard on those matters before making a decision affecting their interests.[23]

86. In considering whether procedural fairness has been given, or denied, the appeal tribunal does not approach the question in a purely theoretical way. As Griffiths J observed in in Coutts v Close,[24] procedural fairness is concerned with practical justice, or the avoidance of injustice:

It is also now settled that procedural fairness is not an abstract issue: rather, attention needs to be focused on the question whether conduct which is said to be procedurally unfair produced some practical injustice. As Gleeson CJ observed in Lam [2003] HCA 6; (2003) 214 CLR 1 at 14:

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[25] [emphasis in original]

87. There are cases where the breach would have made no difference to the outcome of the case_._[26] A first instance decision will not be set aside in such a case.

88. It is impossible to exhaustively state a general principle about what must be done to satisfy this the requirements of procedural fairness,[27] and much will depend on the circumstances. The starting point is to ask whether the respondent knew the substance of that material that was credible, relevant and significant to the issue to be determined.[28] Beyond this, consideration needs to be given to institutional setting in which decision-making operates, the relevant statutory scheme, the subject matter of the decision and, as part of that analysis, the seriousness of the potential consequences of an adverse decision.[29]

89. As I understand the tenant's argument, it is that the original tribunal's decision to allow the lessors to call Mr Leskovek to give evidence gave rise to a breach of procedural fairness because he was 'taken by surprise' that Mr Leskovek was permitted to give evidence, and he did not have the opportunity to call further evidence to support his position, which he would have done had he known that the evidence would be admitted.

90. Having carefully reviewed the process and the evidence, I am not satisfied that the tenant was 'taken by surprise'. He was on notice that the lessor intended to call Mr Leskovek, and he was aware of the broad nature of the complaints received by the owners corporation in the form of the complaint summary document. The detail was lacking, but Mr Leskovek said little that was new or inconsistent with the evidence that was filed.

91. Additionally, by allowing Mr Leskovek to give evidence, the tribunal allowed the respondent's representative to put questions to him. The questions clarified, that neither Mr Leskovek nor any other person had seen the tenant smoke on his balcony.

92. I am also satisfied that the tenant was offered an opportunity to respond to Mr Leskovek's evidence, in that he was offered, and accepted, an opportunity to give evidence himself. The only question was whether the tenant smoked on the balcony, something that was within his personal knowledge, and for which he did not need to make further enquiries. He admitted he vaped, but denied doing so on the balcony. Additional time or notice could not have changed this aspect of his evidence.

93. The tenant giving evidence of this kind was not what Mr Thomas had planned, but it is not always possible to predict how proceedings will unfold, and tribunal advocates may need to be flexible (much like the tribunal itself). My above comments in relation to the quasi-inquisitorial nature of tribunal proceedings apply here.

94. Turning to whether there was any 'practical injustice', the tenant says that the practical injustice arose because the lessors were able to supplement their inadequate evidence with new witness evidence, without which they could not have proved their case.

95. As stated above, I am not entirely convinced that the respondents' case would have failed without Mr Leskovek's evidence, and I am certainly not convinced it would have been summarily dismissed. However, even setting that to one side, it is useful to consider what would have happened if the Senior Member took a more 'judicial' approach and denied both parties the opportunity to present additional evidence.

96. As most people know, a person accused of criminal conduct is, broadly, entitled to stay silent and put the prosecution to proof. The common law and Evidence Act 2011 place limitations on drawing inferences from silence in some circumstances in such criminal matters.

97. Civil proceedings are different. The tenant is correct when he argues that in civil proceedings the applicant bears the onus of proof to prove their case on the balance of probabilities. The original tribunal had to reach a state of 'actual persuasion' of the occurrence or existence of the facts in issue.[30] Theoretically, this means that a party to civil proceedings may 'stay silent' and let the applicant's case rise or fall on its merits. In practice, however, taking this approach can be difficult and risky, if not unwise.

98. In most courts, pleadings effectively prevent a party to a civil case from staying silent, at least past the preliminary stage of litigation. An applicant to a civil proceeding in a court is usually required to file a 'statement of facts' or similar document that sets out each relevant fact alleged. Unless that pleading is struck out early in the process,[31] the respondent is then required to file a response admitting or denying each of those factual allegations. A fact may be 'not admitted', but that is most appropriate when the allegation is outside the knowledge of the respondent. Otherwise, non-admissions are equivalent to a denial. Costs penalties may be imposed where a party fails to admit a fact that is within their knowledge which is later proven.

99. Pleadings can be technical and so the tribunal does not require them. However, in some matters, the tribunal requires parties to file a response, both to ensure that the parties are properly aware of each other's case and to define the scope of the case. This can be done by way of rules[32] or by directions made by a member at a directions hearing or in chambers. In this case, the tenant was clearly directed at the first hearing on 20 April 2021 to file a response and any evidence in support of it, including a statement from any witness.

100. The tribunal's form 'Response - Resolution of dispute under the Residential Tenancies Act 1997' contains a box titled "Section B. I dispute the application on the following grounds:" This is where a party is expected to properly set out all the grounds of their response. A response that properly addresses the scope of the case is important because there is a public interest in the proper and efficient use of public resources.[33] Litigation cannot be a rolling feast of issues, and parties to civil proceedings, including in the tribunal, are under an obligation to assist with the efficient case management of the claim. Failing to respond to a key issue in the dispute may itself be a breach of the principles that the tenant complains, on other grounds, about the lessor having breached. Accordingly, if it was the tenant's position was that he had never smoked a cigarette on the balcony, that should have been made clear in his response or his submissions.

101. The tribunal, for the reasons set out above, took a flexible approach that allowed this deficiency to be addressed. A court, or a tribunal adopting a more adversarial approach, may not have. This would have limited the hearing to the lessors' largely uncontested evidence and the respondent's silence.

102. The approach taken to silence, in a civil matter, is different to that taken in criminal proceedings. Inferences may be drawn. In British Railways Board v Herrington [1972] UKHL 1; [1972] AC 877, 930-931, Lord Diplock, dealing with the liability of a railway for injuries suffered by a trespasser, observed that:

The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold.

103. Justice Branson of the Federal Court concluded in Booth v Bosworth [2001] FCA 1453 that in a case where a party fails to give evidence, certain inferences may be drawn:

42. I conclude that the appropriate approach for me to adopt in this case having regard to the failure of the respondents to give evidence is as follows:

(a) as the burden of proof with respect to each of the facts in issue between the parties lies on the applicant, the applicant must establish evidence of each of the facts in issue notwithstanding that some relevant and important evidence is peculiarly within the knowledge of the respondents;

(b) the failure of the respondents to give evidence does not of itself amount to proof of any fact in issue;

(c) however, provided that there is before the Court evidence tending to establish each of the facts in issue (albeit that it may be "meagre in the extreme" - see Jones v Dunkel per Kitto J at 305), in assessing the probability of the existence of a fact in issue (ie in weighing the evidence on that issue) use may be made of the failure of the respondents to give evidence apparently in their possession relevant to that fact in issue. That is, it is open to the Court to draw the inference that the evidence which the respondents could have given to the Court would not have been favourable to their case and thus more confidently to draw inferences available to be drawn from the evidence that is before the Court.

104. In other words - as long as there was some, albeit 'meagre' evidence before the original tribunal that the tenant smoked on the balcony, it would have been permissible for the tribunal to draw an inference that witness evidence that could have been called, including from the tenant, but ultimately was not, could have helped. In considering whether that evidence existed, the original tribunal would have been entitled to draw certain common sense inferences from what was before it. I do not know what a tribunal, faced with that meagre evidence of the lessor, would have decided, but I cannot conclude that it would not have been open to the tribunal to find for the lessor.

105. Ultimately, however, this is all is all highly speculative, because the reality of the situation was that the tribunal sought to address the evidentiary failures on both parties, in a way that gave both of them an opportunity to submit additional evidence and address the real issues in the case in an efficient manner. It was a proportional approach to a dispute over a modest sum.

106. I wish to be clear here: I am not suggesting tenant was required to put on evidence in support of his contentions. A respondent may, of course, choose to file not evidence, and let the applicant's case rise and fall on its merits. However, in doing so, the respondent takes a very significant risk, particularly in a tribunal, where the member might start asking questions about what they see as the real issues. The tenant took that risk in this case.

107. At the interim hearing, Mr Thomas submitted a number of explanations for his decision to take the approach that he did.

108. First, he submitted that he was not a lawyer, and suggested he should not be expected to know this. However, the obligations in section 7A apply to all representatives, and all representatives are expected to familiarise themselves with the tribunal's procedures. This does not give rise to a ground of appeal.

109. Mr Thomas further explained that his strategy was formed after listening to the presiding Senior Member at the first hearing, as extracted at paragraph 19 of these reasons above. Having reviewed those comments, I accept that the Senior Member at the first hearing clearly advised the lessors' representative of the need to prove their case. It may be drawn from those comments that the Senior Member did not consider the evidence filed by the lessors to be sufficient. However, this was an observation only. It was not determinative of the matter. The Senior Member certainly did not advise the tenant to decline to respond to the allegation. That was a strategic decision made by the tenant or his representative. This does not give rise to an error of law or other ground of appeal.

110. There is however one matter that may give rise to an error of law. The one thing the tenant perhaps did not appreciate in advance of the hearing is that the original tribunal's decision would come down to a question of the credibility of his evidence. This aspect of the case did come as a surprise to him. Procedural fairness may be denied if a decision-maker fails to adjourn proceedings and that has the effect of depriving a person of adequately presenting the person's case.[34] I accept that there is a tenable argument that the original tribunal erred in not adjourning or offering to hear the parties on the question of adjourning the hearing to allow the tenant to call evidence to corroborate his version of events (i.e. that he vaped, rather than smoked, and that he neither vaped nor smoked on his balcony).

111. Again, the question of practical injustice arises.

112. What more evidence could be provided? The tenant's representative submitted that had proceedings been adjourned, the tenant could have filed a witness statement from another witness, supporting his claims that he had ceased smoking and only vaped inside his apartment. Given the lessors' narrow success on the balance of probabilities, I accept this may have made a difference to the outcome. This, to my mind, is the sole ground where a breach of procedural fairness may be established.

113. However, at this stage in the proceedings, another question rises: why was that evidence not filed on appeal?

114. Both parties were given the opportunity to file and seek leave to adduce additional evidence in advance of the appeal. Those directions were clear. Any new evidence to the relied upon at the appeal needed to be filed in accordance with those directions. The appellant did not file any additional witness statements, or indeed any additional evidence for this appeal.

115. The directions made to prepare this matter for appeal aimed to ensure the full evidence was before the tribunal. If there was indeed a breach of procedural fairness by the original tribunal, it was remedied by giving the tenant the opportunity to file additional evidence in support of the appeal. He did not do it. Moreover, there is nothing before me to suggest that the contemplated evidence is even available to the tenant.

116. Accordingly, this ground of appeal must fail, as I am satisfied that to the extent there was a breach of procedural fairness, this appeal has offered the tenant an opportunity to remedy it.

The error of fact argument - was the wrong decision reached?

117. Setting aside the questions of law raised, the substantive question on appeal is whether the original tribunal erred in finding, on the balance of probabilities, that the tenant smoked on his balcony.

118. It appears that the original tribunal preferred documentary and oral evidence provided by the lessors' agent to the tenant's oral evidence. As the lessors' evidence was 'circumstantial', the tribunal drew an inference that it was more likely than not that the tenant had been smoking on the balcony. It follows from this that the tribunal must also have formed its own views as to the tenant's credibility as a witness.

119. In Sarbandi v Sharif [2017] ACAT 57 the tribunal considered the role of the appeal tribunal when the original tribunal decided a case on the assessment of the witnesses. Although lengthy, it is useful to set out the appeal tribunal's observations in full as they are relevant here:

67. There are well settled principles that govern how an appeal court or an appeal tribunal should proceed in circumstances such as this. As the authors of Cross on Evidence observe, quoting from numerous reasons for judgments:

The appellate court will naturally be loath to disturb a finding of fact by the trial judge who has had the advantage of observing the demeanour of the witnesses, "their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial." ... The principle applies particularly where "the interests of individuals are divergent and conflicting, where personal feeling is acute, and where ... so much depends upon the character, personal motives and interests of individual persons." "Trial by transcript can seldom be an adequate representation of an oral trial..." Reading the transcript alone is not a substitute for seeing and hearing the witness, "since the transcript eliminates clues to voracity that are supplied by tone of voice, hesitation, body language, and other non-verbal expression." ... It does not follow that because the trial judge did not refer expressly to demeanour and credibility that they played no part in the judge's conclusions.

68. Second, as the authors of Cross on Evidence also state by reference to judgments:

Errors of law or fact by the court below on other matters do not necessarily vitiate its conclusion on credibility. Hence it is unusual to set aside ... the findings of a trial judge based on the credibility of a witness unless it can be concluded that the trial judge failed to use or palpably misused the advantage he or she had of seeing and hearing the witness, or that the trial judge relied on evidence which was inconsistent with facts incontrovertibly established by the evidence, or that the trial judge acted on evidence which was glaringly improbable, or that the trial judge fell into some error of principle, or that the trial judge mistook or misapprehended the facts, or if the effect of the overall evidence was such that it was not reasonably open to make the findings. However, it is possible to set aside ... credibility -based findings in other circumstances, because "no short exhaustive formula" of the above kinds can meet every case. The court occasionally takes the view that the judge was wrong to give credence to a particular witness, or to find a witness unreliable, in either case because "a whole body of evidence points inescapably to a conclusion different from that reached by the judge at first instance, where in a complex pattern of events incontrovertible evidence can only be fitted into the pattern if a different view of the credibility of a witness is taken by the court on appeal.

120. Broadly, in order to conclude the original tribunal had made an error, I would need to find, having regard to the totality of the evidence before me, that that evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach.[35]

121. The evidence of the lessors' manager was vague as to detail, but demonstrated a pattern of warnings being issued to the tenant about smoking on the balcony. It is not clear to me that the tenant ever denied them, although Mr Thomas submitted that he did, and I accept that is possible. The EC seems to have concluded that the tenant was at fault nonetheless. The tenant admitted to vaping, although not on his balcony. Having regard to the transcript evidence, I am not comfortably satisfied that the tenant smoked on his balcony, but as acknowledged above, reading the transcript alone is not a substitute for seeing and hearing the witness and drawing a conclusion on credibility. I may not have made the same decision as the original tribunal. However, that is not the question. I am not satisfied that the original tribunal's decision was outside the scope of what could be decided, or that it is plainly wrong. Accordingly, this ground of appeal is not made out.

122. Mr Thomas' submissions at the interim hearing were most helpful. Nonetheless, although I have given due regard to them, nothing that he submitted at the interim hearing has caused me to alter my view that this appeal should be dismissed. As I am not satisfied that the appeal, if heard on 1 December 2021, would have been successful, it follows that I decline to set aside the orders of that date. The interim application must be dismissed.

123. The above being said, it should not be overlooked that, as much as the tenant's approach to the proceedings, and particularly his failure to file an adequate response and address the central issue, have led to the dismissal of this appeal, it is the lessors' failure to comply with the directions of the tribunal that is a reason why this matter is on appeal. The tenant made a risky tactical decision that undermined his case. The lessors, or their agent, wilfully breached the tribunal's directions in relation to preparation and filing of documents, going as far as to attempt to file a document they had had for some time on the morning of the appeal hearing. This was a disrespectful and frustrating approach to the proceedings, and I can well understand why the tenant is annoyed and feels that he has been dealt an injustice.

124. I have given some thought as to whether I should order the lessors to pay part of the application fee. However, there is no basis upon which I could make an award.

125. The tribunal's costs power to award the application fee, and other costs, is found in section 48 of the ACAT Act, which provides:

(1) The parties to an application must bear their own costs unless this Act or another territory law otherwise provides or the tribunal otherwise orders.

_(2) However - _

(a) if the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant--

(i) the filing fee for the application; and

(ii) any other fee incurred by the applicant that the tribunal considers necessary for the application; or

(b) if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application - the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or

126. Section 48(2)(a) only permits me to require a respondent to pay the application fee, or other costs, where the appellant is successful. That is not the case here.

127. I have also considered whether the lessors' conduct warrants an award of costs to the tenant under section 48(2)(b), but there is nothing about the lessors' conduct in the appeal that has caused obstruction or delay in the manner contemplated by that clause.

128. The limited other costs provisions in section 48 also do not apply in this matter. Accordingly, I cannot order the lessor to pay the tenant's costs.

129. The interim application is dismissed and the decision of the tribunal of 1 December 2021 to dismiss the appeal and confirm the orders of the original tribunal is confirmed.

7 September 2021, 17 November 2021, and 1 December 2021

[6] See Oliver v Registrar, Domestic Animals Act 2000 [2021] ACAT 93 at [11]- [12]

[7] Transcript of proceedings 20 April 2021, page 4, lines 33-43

[8] Transcript of proceedings 7 June 2021, page 6

[9] Transcript of proceedings 7 June 2021, page 21

[10] Transcript of proceedings 7 June 2021, pages 22-3

[11] Transcript of proceedings 7 June 2021, pages 25-6

[12] Transcript of proceedings 7 June 2021, page 54

[13] Transcript of proceedings 7 June 2021, page 54

[14] Transcript of proceedings 7 September 2021, page 25

[15] Transcript of proceedings 7 September 2021, page 26, lines 29-31

[16] [2018] ACAT 103

[17] Mansour v Dangar [2017] ACAT 49 at [22]

[18] [1936] HCA 40; (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ)

[20] See Italiano v Carbone [2005] NSWCA 177 at [114] (Basten JA), citing SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [197] (Hayne J)

[21] Cited by the tribunal in Xia v Wang & Bian [2009] ACAT 21 at [108]

[22] Clements v Independent Indigenous Advisory Committee [2008] FCFCA 143 at [8] (Gray ACJ and North J)

[23] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 587 (Mason J) (Kioa v West)

[24] [2014] FCA 19 at [120]

[26] [1986] HCA 54; (1986) 161 CLR 141 at [28]

[27] Kioa v West, 611-612 (Brennan J); See for example Stead v State Government Insurance Commission [1986] HCA 54

[28] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72

[29] Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298 at [63] per Giles JA

[30] Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 at [136] (Spigelman CJ)

[31] E.g. for disclosing no cause of action, being frivolous or vexatious or an abuse of process.

[32] See the ACT Civil and Administrative Tribunal Procedures Rules 2020

[33] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 195 (French CJ)

[34] See Grozdanov v N&T Buildings Pty Ltd [2015] NSWCATAP 107 at [51]; Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 at [21]- [22]

[35] Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; 173 CLR 33 at [41]- [42]; Mainteck Services Pty Limited v Stein Heurtey SA and Stein Heurtey Australia Pty Ltd [2013] NSWSC 266 at [153]; ACT Department of Education & Training v Prendergast [2000] ACTDT 6