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Norman Waterhouse

Procedural Fairness – the unrepresented litigant

In Atkins v Hughes & Anor [2019] SASCFC 49, the Full Court of the Supreme Court of South Australia was asked to consider an application for permission to appeal a decision of the President of the South Australian Civil and Administrative Tribunal (SACAT), Her Honour Justice Hughes, to affirm a decision made by a Member of SACAT (the Member).

Facts

A tenant lodged a claim in SACAT, alleging the landlords had breached clauses in the tenancy agreement relating to cleanliness, repair and maintenance of the property. The tenant sought relief and compensation in the amount of $40,000.

Background

On 14 February 2018, the Member conducted a hearing and made orders concerning the future conduct of the proceedings. Subsequent to this, the tenant filed an amended claim which was accompanied by a document comprising of more than 140 pages.

The matter came before the Member again on 29 March 2018, where the Member applied Section 48 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act) to dismiss the application on the basis it was misconceived or lacking in substance, an abuse of process and being used for an improper purpose.

This order was recorded on SACAT’s own initiative, in accordance with Section 48(3) of the SACAT Act, and was made on the documents without the parties being required to attend. The Member noted that even if the tenant had a substantive claim, the aggressive manner in which he had dealt with the landlords’ agent in the course of the proceedings amounted to the use of proceedings for an improper purpose and/or abuse of process.

Internal Review

The tenant sought an internal review under Section 70 of the SACAT Act on the basis he had not been given a hearing. He also provided written submissions detailing the various repairs and maintenance he alleged had not been undertaken in a timely way and stated he suffered from acute post-traumatic stress disorder and ‘chronic anxiety stress panic attack disorder’. It was apparent the tenant displayed difficulties with written communication that were consistent with his claim of suffering from dyslexia.

The President of SACAT heard the matter and the tenant gave evidence in response to the findings of the Member. Her Honour concluded the Member had correctly dismissed the claim on the grounds that it was misconceived or lacking in substance and affirmed the decision under review.

The Application for Permission to Appeal

On application by the tenant, the Full Court of the Supreme Court of South Australia heard the tenant had not been given the opportunity to make submissions about the merits of his claim.

The Full Court determined it was necessary for SACAT to give the tenant the opportunity to make submissions in support of his contention the landlords had failed to meet their obligations and that he was entitled to compensation. The Full Court stated:

‘The obligation to allow a reasonable opportunity to make relevant oral submissions was particularly important in this case because of the obvious difficulty the [tenant] had in presenting appropriate and meaningful written submissions.’

It was concluded that the failure to allow the tenant ‘an appropriate opportunity to put his case resulted in a clear denial of procedural fairness.’ The appeal was allowed.

Conclusion

The findings of this case highlight the need for any Court or Tribunal dealing with a claim made by an unrepresented party to exercise particular care and consider carefully whether the claim may have some possible merit notwithstanding gross deficiencies in the manner in which the case has been presented.

Take Home Message

In its dealings, councils are often faced with unrepresented litigants who may not fully comprehend the process of an appeal or, similar to this case, submit documents that are difficult to understand, deficient or irrelevant to the matter at hand.

This case examines the difficulties associated with an appeal by a party that is self represented and reinforces both the council’s and SACAT’s obligations when dealing with unrepresented litigants. It is important councils afford unrepresented litigants procedural fairness in both its own decision making processes and when appearing before Courts or Tribunals, this may include providing the person adequate time to understand the issues, their rights and the potential consequences of their actions. Further, unrepresented litigants may require alternative methods to make relevant submissions. Some flexibility on behalf of the council will help preserve procedural fairness.

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