ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CHESSELL & ANOR v REYNOLDS [2018] ACAT 107

XD 22/2018

Catchwords: CIVIL DISPUTE – application to set aside order that Mr Eric Polleycutt be removed as representative for the respondent – application dismissed – application to set aside procedural directions readying matter for hearing and to vacate hearing date – relevant principles - application dismissed – application for pre-hearing procedural orders – no proper purpose – purpose of avoidance and delay – applications dismissed

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 6Court Procedures Act 2004 s 65

SubordinateLegislation: ACT Civil and Administrative Tribunal Procedure Rules rule 8

Cases cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27Commissioner for Social Housing v Williams [2017] ACAT 53Group Konstrukt Pty Ltd v Arrow International Australia Ltd [2012] ACTSC 14Monaghan v Australian Capital Territory [2015] ACTSC 187Powley v Reynolds [2018] ACAT 103UBS AG v Tyne [2018] HCA 45White v Overland [2001] FCA 1333

Tribunal: Presidential Member G McCarthy

Date of Orders: 23 October 2018Date of Reasons for Decision: 31 October 2018

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 22/2018

BETWEEN:

AARON JOHN CHESSELL AND MAXINE JOAN CHESSELL

Applicants

AND:PATRICK LEO REYNOLDS

Respondent

TRIBUNAL: Presidential Member G McCarthy

DATE: 23 October 2018

ORDERThe Tribunal orders that:

1. The respondent’s application dated 9 October 2018 for an order that the

orders of Presidential Member Daniel made on 15 October 2018 be set

aside is dismissed.

2. The respondent’s application for orders that Mr Mark Boyle, Ms Tracy

Gramlick and Mr Leigh Wallis be joined as parties to the proceeding is

dismissed.

3. The respondent’s 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 applicants amended application dated 24 May 2018 remains listed for

hearing on Friday, 2 November 2018 at 10:00am.

4. The respondent’s application for an order that the applicants give consent

for the respondent to inspect any building file held by the ACT Planning

and Land Authority of properties where windows were installed is

dismissed.

…………… Signed……………

Presidential Member G McCarthyREASONS FOR DECISION

1. This matter has a regrettably long and tortuous history. I outline only those facts

relevant for the purposes of the orders I made on 23 October 2018.

2. By application dated 3 January 2018, the applicants brought proceedings against

Patrick Leo Reynolds (hereafter the respondent) and James Quinn arising from

the respondent’s supply and installation of glazed windows at their home. The

respondent carried on a business trading as “Ardglass Windows”.

3. The applicants allege that the installation and quality of the respondent’s work

was to a poor standard. They also alleged that the windows do not comply with

applicable Australian Standards.

4. The applicants claimed $18,666.40, comprised of $17,837 by way of

compensation, payment of the tribunal filing fee of $150, payment of $660

representing the fee they paid for a report prepared by Peak Consulting and

$19.40, being the cost of sending letters of demand to the respondent.

5. There being no response by the respondent or Mr Quinn, on 2 February 2018

the Tribunal entered default judgement against the respondent and Mr Quinn.

On 14 March 2018, the Tribunal made an ex parte order that the respondent and

Mr Quinn pay the applicants $18,666.40.

6. On 2 May 2018, the respondent 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 applicants to file and serve an amended application by 25 May

2018, and the respondents to file and serve a response by 8 June 2018.

7. On 24 May 2018, the applicants filed their amended application, together with

documents in support.

8. On 7 June 2018, Mr Quinn filed a response contending that he had been

wrongly named in the claim and had had no involvement in the matters giving

rise to the dispute. On 27 June 2018, Mr Quinn filed an application for the claim

against him to be struck out. On 17 August 2018, the Tribunal made an order by

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consent that Mr Quinn be removed as a respondent in the matter.

9. The respondent (Mr Reynolds) did not file a response by 8 June 2018, as

ordered, and had still not done so when I heard the respondent’s application on

23 October 2018. Instead, he (or Mr Polleycutt on his behalf) sent unsigned and

undated correspondence and other documents to the Tribunal commenting upon

the applicants’ claim and seeking an order that the amended application be

struck out as an abuse of process.

10. By a general power of attorney dated 17 August 2018, the respondent appointed

Mr Eric Polleycutt as his attorney in this proceeding.

11. On 17 August 2018 at a directions hearing, the Tribunal ordered that the matter

is listed for hearing on Friday, 2 November 2018 at 10:00am. The respondent

and Mr Polleycutt attended the hearing. To ready the matter for hearing, the

Tribunal also made the following orders, among others:

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;

f) any expert’s report the respondent will rely on at the hearing; and

g) 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.

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12. By amended application dated 11 September 2018, the applicants increased the

amount claimed to $25,000. 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”.

As best I can ascertain, the applicants have not altered the basis of their claim.

13. On 13 September 2018, the Tribunal amended the orders made on

17 August 2018 by extending the date (in order 4) by which the applicants were

to file their material from 14 to 19 September 2018, and by extending the date

(in order 5) from 19 to 24 September 2018. The Tribunal confirmed that the

matter remains listed for hearing on 2 November 2018.

14. On 15 October 2018, in response to an application from the applicants arising

from Mr Polleycutt’s conduct, the Tribunal made the following ex parte order:

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.

15. By application dated 9 October 2018, but filed on 17 October 2018, the

respondent 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”;1

(c) that Mr Mark Boyle, Ms Tracy Gramlick and Mr Leigh Wallis be joined

as parties to the proceeding;

(d) that the respondent 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 the respondent have access to the applicant’s property to inspect and

photograph the installed windows;

1 The stated matter numbers are incorrect, and are XD 334/2018 and XD 800/2018. Final orders have been made in XD 334/2008: see Powley v Reynolds [2018] ACAT 103

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(f) that the applicants 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.”

16. The respondent 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.2 Attachment

B concerned the applicants’ claim against the respondent. Attachment C

concerned proceeding XD 800/2018 in which Kavita Verma and Will Rees have

also sued the respondent for compensation in terms materially the same as the

applicants’ claim against the respondent. Attachments D and E were broad

ranging submissions in response to all three claims.

17. The respondent 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-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 the

respondent 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 I heard the application and the similar applications

in proceedings XD 334/2018 and XD 800/2018. The respondent attended with

Mr Polleycutt. So did the applicants, and the applicants (save for Mr Rees) in

each of the other two proceedings.

18. At the end of the hearing I made orders in this proceeding (and in the other

proceedings) and said that I would publish my reasons. I now do so.

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

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Removal of Mr Polleycutt

19. The first part of the respondent’s interim application was for an order setting

aside the Tribunal’s order made on 15 October 2018 removing Mr Polleycutt as

his representative.

20. Mr Reynolds spoke to the application. He contended that he did not know how

to defend the applicants’ claim and needed Mr Polleycutt to be his

representative for this purpose. He said that he could not respond to the order

removing Mr Polleycutt as his representative because he did not know why the

order was made.

21. The applicants opposed the respondent’s application. They contended, as they

had before Presidential Member Daniel, that Mr Polleycutt’s conduct and

representation of the respondent was contrary to the third and fourth objects of

the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), section

6, which state:

(b) to ensure that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal; and

(c) to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice.

22. Removal of a representative is governed by rule 8 of the ACT Civil and

Administrative Tribunal Procedure Rules which provides:

8 Removing representatives

(1) This rule applies if a party to a proceeding in the tribunal is being represented by someone else (the representative).

(2) The tribunal may, by order, stop the representative from taking any further part in the proceeding.

(3) However, the tribunal may only make an order under subrule (2) if satisfied that—

(a) the representative does not have sufficient knowledge of the issues in dispute in the proceeding to allow the representative to effectively represent the party at the hearing of the proceeding; or

(b) the representative does not have sufficient authority to bind the party; or

(c) the representative’s representation is inconsistent with the objects of the Act.

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Note 1 The tribunal must observe natural justice and procedural fairness (see the Act, s 7).

Note 2 The objects of the Act are in the Act, s 6.

23. In court proceedings, a party may appear before the court “either personally or

by a lawyer”.3 ‘Lawye’ is defined in the Legislation Act 2001 to mean a “legal

practitioner” which is in turn defined to mean “a person who is admitted to the

legal profession under the Legal Profession Act 2006 or a law that is a

corresponding law for that Act.” The Legal Profession Act 2006 in turn imposes

innumerable professional obligations upon lawyers concerning the manner in

which they represent a person in court.

24. In Tribunal proceedings, a party can be represented by a person other than a

lawyer. However, in my view, the privilege of representation still brings with it

a responsibility to present the party’s case in a proper, constructive manner that

furthers the objects of the ACAT Act. Rule 8(3)(c) permits the Tribunal to stop

the representative from taking any further part in the proceeding where the

representative is not doing so.

25. In my view, for the reasons that follow, Mr Polleycutt’s representation of the

respondent was inconsistent with the objects of the ACAT Act and, in my view,

deliberately so. His conduct amounted to overt and repeated attempts not to

meet the applicants’ claim, but to avoid and delay its resolution. The orders that

the respondent sought in his interim application were, in themselves, illustrative

of the tactic. I give some examples.

26. The file records that by email sent on 18 September 2018, the Tribunal advised

the respondent that the application to remove Mr Polleycutt as his representative

was listed for hearing on 15 October 2018 at 11:00am. The email attached a

copy of the application and listing notice. Mr Polleycutt confirmed receipt of the

notice, by sending an email on 18 September 2018 stating “The Respondents

(sic) requires a hard copy served”. The respondent sent another email on 12

October 2018 asking for the matter to be “set out of the list until suitable and

acceptable attorney has considered all applications; responded and is provided

reasonable time and resources to defend the application as required by

3 Court Procedures Act 2004, section 65

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Mr Chessell”. That request was for the Tribunal to decide at hearing or

beforehand, but neither the respondent nor Mr Polleycutt attended the hearing.

27. I reject the proposition that a party can defeat an application simply by not

attending the hearing. The respondent’s claim that he did not know why

Presidential Member Daniel made her order was a problem of his own making.

28. By email sent on 15 October 2018 at 7:06pm, the respondent requested “the

recorded basis” of the decision. He requested the Tribunal “undertake a review

of the orders” and said that if this “is not procedurally possible to have the

procedural requirements for the Matter to be appealed.”

29. The respondent received a response the next day advising that the member

could provide written reasons for decision or instead a transcript of the reasons

for decision. In answer, the respondent spoke about lodgement of an appeal, that

the orders “appear not to consider the respondent’s submission in any respect”

and requested that the matter be “stood out of the list while ACAT administers

these fundamental issues”.

30. However, determinative of my conclusion that Mr Polleycutt’s representation of

the respondent has been designed to defeat the objects of the ACAT Act is the

respondent’s non-compliance with the procedural directions made on 17 August

2018. These orders were made to enable the hearing to proceed on 2 November

2018 and to ensure that the application is resolved “as quickly as is consistent

with achieving justice”. In his capacity as the respondent’s representative,

Mr Polleycutt’s main responsibility after his appointment as the respondent’s

representative on 17 August 2018 should have been to assist the respondent in

his compliance with order 6, yet the respondent had not filed any document in

response to order 6 by 12 October 2018 (as ordered) or by 23 October 2018

when I heard the respondent’s application.

31. At hearing, the respondent referred to attachment B to his interim application as

his documents filed in compliance with order 6. However, when asked, he could

not take me to any sentence or part of Attachment B that responded to order 6.

Attachment B, instead, challenged innumerable matters that were completely

irrelevant, for example challenging the validity of a power of attorney allowing

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a person to represent Mr Quinn notwithstanding the fact that Mr Quinn by

consent is no longer a party to the proceeding. The bulk of Attachment B, in my

view, was incomprehensible. The respondent said that he and Mr Polleycutt

prepared the interim application and its attachments “collectively”.

32. The respondent submitted that without Mr Polleycutt’s assistance he was unable

to meet the claim against him. He contended that he did not understand the

applicants’ claim. The contention was disingenuous. The claim is quite simple:

the applicants allege that the windows that the respondent installed in their

house do not comply with applicable Australian Standards and were, in

substance, installed in a faulty manner. The respondent claims to have been

installing these windows in the course of carrying on his business for the past 15

years. He should be better placed than most to show that the windows comply

with Australian Standards (if they do), and to meet the claims about faulty

installation. Instead of doing so, Mr Polleycutt has drawn the respondent into an

application, willingly or otherwise, intended in my view only to frustrate

resolution of the dispute.

33. In Aon Risk Services Australia Ltd v Australian National University4 the High

Court said:

100. The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. In Bomanite Pty Ltd v Slatex Corp Aust French J said of Bowen LJ's statements in Cropper v Smith:

"... That may well have been so at one time, but it is no longer true today ... Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary." (footnotes omitted)

34. In its recent decision, UBS AG v Tyne,5 the High Court discussed the overriding

importance of the efficient and timely administration of justice in the context of

4 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 at [99]

5 UBS AG v Tyne [2018] HCA 45 (17 October 2018)

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an application for proceedings to be permanently stayed as an abuse of process.

By a majority, the Court determined that the proceedings should have been

permanently stayed. The minority (Nettle and Edelman JJ) disagreed on the

facts, but not on questions of principle.

35. Kiefel CJ, Bell and Keane JJ said:

38. The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute … Integral to a "just resolution" is the minimisation of delay and expense. … These considerations inform the rejection in Aon of the claimed "right" of a party to amend its pleading at a late stage in the litigation in order to raise an arguable claim. The point is made that a party has a right to bring proceedings but that choices are made respecting what claims are made and how they are framed. Their Honours speak of the just resolution of the dispute in terms of the parties having a sufficient opportunity  to identify the issues that they seek to agitate.

…

45. The courts must be astute to protect litigants and the system of justice itself against abuse of process. It is to hark back to a time before this Court's decisions in Aon and Tomlinson and the enactment of s 37M of the FCA to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the "just, quick and efficient" resolution of litigation. To insist, for example, on "inexcusable delay" as a precondition of the exercise of the power to stay proceedings as an abuse of process is to fail to appreciate that any substantial delay is apt to occasion an increase in the cost of justice and a decrease in the quality of justice. And other litigants are left in the queue awaiting justice. Further, there is no reason why the courts should tolerate attempts to manipulate other parties and the courts themselves by the deployment, by a single directing mind and will, of different legal entities under common control for such a purpose. The concern is as to whether the processes of the court are being abused. Given that this is the central concern, the circumstance that the abuse is effected by the use of multiple entities orchestrated by a single mind and will is no reason to tolerate it.

36. Gageler J discussed the issue as follows:

70. … There is a public interest in the timely and efficient administration of civil justice. The importance of that public interest has only increased in the years since Lord Bingham spoke.

71. Dowsett J sought to capture that public interest when he referred in dissent in the decision under appeal to the abusive character of litigious conduct which, if permitted, would lead "the right-thinking

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person" to perceive the system for the administration of civil justice to be "inefficient, careless about the incurrence of cost by the parties, and profligate in the application of public moneys". His Honour's anthropomorphic allusion was evidently drawn from the frequently quoted description of the power to prevent an abuse of process in terms of an "inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people"..

72. Although undoubtedly capable of application in circumstances in which use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute, the doctrine of abuse of process has repeatedly been recognised to be insusceptible of a formulation which would confine it to closed categories. In the context of the application of the doctrine to the bringing of successive proceedings, consistently with the analysis of Lord Bingham, I think it better in weighing the private and public interests involved to eschew the extremes of private "oppression" and of public "disrepute". The relevant public interest is ordinarily appropriately identified in more general and less emotive terms as the timely and efficient administration of civil justice. (footnotes omitted)

37. In White v Overland, the Federal Court per Allsop J (as he then was) said:

… by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. …. Litigation is not a game. It is a costly and stressful, though necessary, evil. To paraphrase Roscoe Pound from "The Causes of Popular Dissatisfaction with the Administration of Justice" (1906) 29 ABA Rep 395, 404-406, the "sporting theory of justice" and any behavioural manifestation of it should be seen as a survival, or better, a relic, of the days when a lawsuit was a fight between two clans: cf Jackamara v Krakouer (1998) 195 CLR 516 at 526-527 per Gummow and Hayne JJ.6 

38. In Monaghan v Australian Capital Territory, the Supreme Court, per Mossop

ASJ (as he then was) said:

Basic propositions

5. It is, unfortunately, necessary at the outset to outline some obvious propositions:

6 White v Overland [2001] FCA 1333 at [4]

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(a) The directions made are orders of the Court.

(b) The power to give directions is fundamental to the proper management of cases and hence to the administration of justice.

(c) Compliance with directions is essential in order to meet the goals of r 21 of the Court Procedures Rules 2006 (ACT) (the Rules) namely the just resolution of the real issues in the proceedings with a minimum of delay and expense.

(d) Lawyers representing clients in the Court have a professional duty to assist their clients to fulfil their obligations under this rule. That involves them conducting themselves honestly and professionally in the light of the recognition that: ‘Litigation is not a game. It is a costly and stressful, though necessary, evil’ (White v Overland [2001] FCA 1333 at [4]).

(e) The fact that a lawyer’s client may be impecunious is not a factor which reduces his or her professional obligations either to the client or to other parties to proceedings.7

39. In Powley v Reynolds8 I refer to similar comments made by the ACT Supreme

Court, per Burns J, in Group Konstrukt Pty Ltd v Arrow International Australia

Ltd.9

40. The President of the Tribunal expressed similar sentiments in Commissioner for

Social Housing v Williams10 in the context of an application to extend time for

leave to appeal. The President of the Tribunal referred to several decisions of

the ACT Supreme Court and English decisions underlining the importance of

timely and cost efficient resolution of disputes. Determination of applications

for amendments or adjournments or reliance on evidence filed late must take

into account prejudice to other parties, particularly where the grant of an

application necessitates vacation of the hearing date.

41. By the close of the hearing on 23 October 2018, I was satisfied that

Mr Polleycutt’s representation of the respondent “is inconsistent with the

objects of the Act” and warranted his removal as the respondent’s representative

under rule 8(c). I deal briefly with each of the other orders sought in the

respondent’s interim application to explain why, in my view, they were

7 Monaghan v Australian Capital Territory [2015] ACTSC 187 at [5]8 Powley v Reynolds [2018] ACAT 1039 Group Konstrukt Pty Ltd v Arrow International Australia Ltd [2012]

ACTSC 14 at [19] – [22]10 Commissioner for Social Housing v Williams [2017] ACAT 53 at [20]

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baseless, and sought only to further the respondent’s and Mr Polleycutt’s tactic

of avoidance and delay.

Application to set aside the orders of 17 August 2018

42. To set aside the directions made on 17 August 2018, amended on 13 September

2018, including vacating the hearing date would have been a very significant

step, noting that 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.

43. The respondent installed the windows in the applicants’ home in 2016 and 2017.

The applicants have been waiting for resolution of their claim for nearly a year.

I accept that to vacate the hearing date, probably to a date in 2019 having regard

to the reasons why the respondent applied for all the procedural directions and

the hearing date to be vacated, would have caused the applicants considerable

distress and frustration.

44. The respondent gave no explanation for why he had not complied with the

procedural directions regarding filing and service of his evidence, save perhaps

him stating that he did not understand the applicants’ claim. As mentioned, I

regard that is disingenuous. Even if it were true, he has had months to inquire.

45. The application to set aside the procedural directions, including the hearing

date, was made with reliance on all the other procedural and preparatory actions

that, the respondent said, needed first to occur as detailed in the further orders

sought. Two difficulties arose. First, they were baseless. Secondly, if the

respondent wished to pursue these issues he should have done so long before.

The further orders work, in my view, only to pursue the respondent’s and/or Mr

Polleycutt’s endeavour to delay and avoid.

Joinder of other persons

46. Mr Boyle is an officer with the Office of Fair Trading that carried out an

investigation into a claim that the windows that the respondent supplied were

sourced from overseas, and were not compliant with Australian Standards. He

had no role in the supply or installation of the windows. The suggestion that he

be joined as a party to this proceeding was nonsensical. In any event, if such an

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application were to be entertained, it should have been brought soon after these

proceedings were commenced in January 2018. It would have required service

of the application on Mr Boyle and him having an opportunity to respond to it.

To file an application on 17 October 2018 for an order that Mr Boyle be joined

as a party in a matter to be heard on 2 November 2018 was, in my view, nothing

more than a tactic designed to obstruct and delay.

47. Ms Gramlick is the Chief Executive Officer of Australian Windows

Association. Her only role, so far as I could tell, was to inform Mr Boyle of her

understanding that the Camden windows that the respondent installed in the

applicants’ home do not comply with Australian Standards. The proposition that

she be joined as a party to this application was again, and for the same reasons,

nonsensical. She had no role in the supply or installation of these windows.

48. Mr Wallis (the respondent alleges) is a director of Smith and Sons, who, the

respondent alleges, provided false expert advice. Again, regardless of whether

the respondent could establish that the advice was “false” , it would not be a

basis to join Mr Wallis as a party to this proceeding. Again, the only rational

purpose for the application, in my view, was to avoid the hearing on 2

November 2018.

Correspondence between Louise Powley and Mark Boyle

49. It would appear from Ms Powley’s witness statement dated 9 September 2018

that in late 2017 she contacted Mr Boyle regarding her own experiences with

the respondent, and that Mr Boyle informed her that “it appeared the windows

and doors had never been tested to conform to Australian Standards.”

50. Regarding the proposed order, there is no suggestion that correspondence

between Ms Powley and Mr Boyle exists or (if it does exist) that Ms Powley is

refusing to provide it. In any event, if the respondent wished to obtain such

correspondence, assuming it exists and assuming Ms Powley and Mr Boyle are

refusing to provide it, the proper means for the respondent to obtain the

correspondence is by subpoena. That preparatory step should have occurred

long ago.

ACTPLA files

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51. There were many problems with this application. First, I was not persuaded that

the Tribunal can order the applicants to provide written authority for the

respondent to inspect files held by the ACT Planning and Land Authority

regarding their home or other homes where windows have been installed,

meaning (presumably) windows installed by the respondent. Even if there were

such a power, I could see no reason why it should be exercised. The respondent

could not identify any document that was or might be on any ACTPLA file

pertaining to the applicants, or to any windows, that would or might be relevant

to the case. Again, the proposed order seemed to have no purpose but avoidance

and delay.

52. Second, the respondent seeks access to all files where windows have been

installed, signed by all ACT leaseholders. In addition to the logistical nonsense

of this application, such files would be irrelevant. This is a case about windows

installed in the applicants’ home, not anywhere else.

Access and inspection

53. 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

2016 and 2017. These proceedings commenced in January 2018. To apply for

access two weeks or so before the hearing was, in my view, not for the purpose

of presenting his case but for the purpose of avoidance and delay.

………………………………..Presidential Member G McCarthy

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HEARING DETAILS

FILE NUMBER: XD 22/2018

PARTIES, APPLICANT: Aaron Chessell and Maxine Chessell

PARTIES, RESPONDENT: Patrick Leo Reynolds

COUNSEL APPEARING, APPELLANT N/A

COUNSEL APPEARING, RESPONDENT N/A

SOLICITORS FOR APPELLANT N/A

SOLICITORS FOR RESPONDENT N/A

TRIBUNAL MEMBERS: Presidential Member G McCarthy

DATE OF HEARING: 23 October 2018

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