Federal Court of Australia

Anderson v Morgan Crest Pty Ltd trading as Ray White Benalla [2025] FCA 817

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The proceedings be remitted to the Federal Circuit and Family Court of Australia (Division 2) for a re-trial.

3.    Orders 1, 2, 3 and 4 of the orders made by the primary judge on 6 November 2024 be set aside.

4.    Each party bear their own costs of this appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROFE J

1.    Introduction

1    This is an appeal from a judgment delivered by the primary judge in the Federal Circuit and Family Court of Australia (Division 2) (FCFCoA) on 6 November 2024, Anderson v Morgan Crest Pty Ltd trading as Ray White Benalla [2024] FedCFamC2G 1145 (Primary Judgment or PJ). This Court has jurisdiction to hear an appeal from a decision of the FCFCoA by operation of s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

2    I heard an interlocutory application and the appeal concurrently on 3 June 2025, as a single judge sitting in the appellate jurisdiction of this Court pursuant to s 25(1AA)(a) of the FCA Act. The appellant, Ms Lena Annika Anderson, represented herself and appeared via video-link. Mr St John Hibble of counsel appeared in-person on behalf of the respondent, Morgan Crest Pty Ltd trading as Ray White Benalla, and was instructed by Gilchrist Connell.

3    The Primary Judgment was delivered following a final hearing, which proceeded in the absence of Ms Anderson, following the primary judge’s refusal of Ms Anderson’s request for an adjournment of the final hearing.

4    The primary judge’s findings of fact were set out at PJ [33]–[51] and were discussed in the context of Ms Anderson’s pleaded case.

5    For the reasons that follow, I will allow the appeal and order that the matter be remitted back to the FCFCoA for re-trial.

2.    Background

6    I note from the outset that much ink has already been spilled to describe the background facts giving rise to this matter: see Sharpe v Anderson (Residential Tenancies) [2024] VCAT 375; Sharpe v Anderson (Residential Tenancies) [2024] VCAT 381; Anderson v Sharpe (No 2) [2024] VSC 279; Anderson v Sharpe [2024] VSCA 166; and Anderson v Sharpe (Residential Tenancies) [2025] VCAT 415. While Ms Anderson’s matter in this appeal relates to the conduct of her real estate agent, rather than her landlord (Mr Sharpe), her claim arises out of her residential tenancy at 26 Benson Street, Benalla in Victoria (the Property). The circumstances surrounding Ms Anderson’s tenancy are discussed in those decisions at length. The facts relevant to this appeal are briefly explained below.

7    Mr Sharpe was the owner and landlord of the Property for which Ms Anderson entered into a tenancy agreement. Ray White Benalla was Mr Sharpe’s real estate agent for the Property.

8    At first instance, Ms Anderson claimed that Ray White Benalla engaged in unconscionable conduct. As set out at PJ [4], Ms Anderson pleaded that Ray White Benalla was bound by obligations under the Residential Tenancies Act 1997 (Vic) (RT Act), the Estate Agents Act 1980 (Vic) (EA Act) and Australian Consumer Law and Fair Trading Act 2012 (Vic) (ACLFT Act) and had breached the same and acted unconscionably by:

(a)    failing to have urgent and non-urgent repairs done at the rental property as requested by her on 31 August 2022;

(b)    issuing an invalid and retaliatory notice to vacate on 22 November 2021;

(c)    issuing a second invalid and retaliatory notice to vacate on 26 October 2022;

(d)    issuing a third invalid and retaliatory notice to vacate on 3 March 2023; and

(e)    making false representations to a Victorian Civil and Administrative Tribunal (VCAT) hearing and committing offence under s 504 of the RT Act with the object of having her evicted.

9    The primary judge at PJ [5] noted that although the alleged particulars relied upon to make out the claim for unconscionable conduct all related to alleged breaches of provisions of the RT Act, and although the ACLFT Act was mentioned in the Statement of Claim dated 3 October 2023, no coherent pleading was made regarding it. Ms Anderson also alleged that certain conduct constituted unconscionable conduct in connection with the provision of goods and services in breach of the provisions of the Australian Consumer Law (ACL), as contained in Sch 2 to the Competition and Consumer Act 2010 (Cth).

10    Ms Anderson sought $43,426.00 in compensation pursuant to s 236 of the ACL, alleging that she had suffered loss and damage pursuant to the Ray White Benalla’s unconscionable conduct.

11    Ray White Benalla denied each allegation of unconscionable conduct and the alleged breaches of the RT Act, EA Act and ACLFT Act.

2.1    Events leading to proceeding

12    On 26 June 2020, Ms Anderson entered into a lease for the Property with Mr Sharpe for a fixed 12-month period, being 26 June 2020 to 25 June 2021, for $330 per week.

13    On 25 June 2021, Ms Anderson entered into a second lease for the Property with Mr Sharpe for a fixed term period of six months from 26 June 2021 to 25 December 2021, for $330 per week.

14    On 8 September 2021, Ms Anderson entered into a temporary rent reduction agreement with Mr Sharpe. Over the coming period, Ms Anderson received emails on behalf of Ray White Benalla with arrears notices.

15    From 15 November 2021 to 4 March 2023, four notices to vacate were sent to Ms Anderson. Three of the four notices were challenged in separate proceedings in VCAT, in the Supreme Court of Victoria and the Court of Appeal.

•    On 15 November 2021, a notice to vacate (First Notice) was sent to Ms Anderson with a vacate date of 22 January 2022. On 21 January 2022, Ray White Benalla withdrew the First Notice.

•    On 26 October 2022, a second notice to vacate (Second Notice) was sent to Ms Anderson with a vacate date of 3 January 2023. On 3 March 2023, this notice was struck out by VCAT and was found to be invalid.

•    On 25 January 2023, a third notice to vacate for non-payment of rent was sent to Ms Anderson with a vacate date of 17 February 2023 (Third Notice). On 24 March 2023, pursuant to the Third Notice, VCAT ordered Ms Anderson to vacate the Property and pay rent in arrears, totalling $3,880. On 28 March 2023, Ms Anderson commenced an application for leave to appeal against the 24 March 2023 VCAT orders, which was heard in the Supreme Court. On 19 September 2023, Gorton J found that the Third Notice did not meet the legal requirements and therefore set aside the orders for possession of the Property: Anderson v Sharpe [2023] VSC 559.

•    On 4 March 2023, a fourth notice to vacate (Fourth Notice) was issued and sent to Ms Anderson with a vacate date of 10 May 2023.

16    On 4 March 2023, Ms Anderson applied to VCAT for urgent repairs to be made to the Property, with Ray White Benalla thereafter issuing work orders in response. In the meantime, Ms Anderson would not allow access to the Property until her appeal on the Third Notice was heard by the Supreme Court.

17    On 3 October 2023, Ms Anderson filed her application against Ray White Benalla in the FCFCoA for unconscionable conduct. On 3 November 2023, Ms Anderson lodged a second application in VCAT for urgent repairs to the Property. On 6 December 2023, this second repairs application was heard by VCAT, with orders made that day requiring for repair works be undertaken. The 6 December 2023 orders were not complied with, with subsequent orders made on 25 March 2024 by Senior Member Treble requiring Mr Sharpe to undertake works and finding that the Property had not been maintained in good repair. Throughout the following period, attempts were made by tradespeople to enter the Property to conduct the repairs.

18    Mr Sharpe brought two applications for possession of the Property in parallel in VCAT.

(a)    The first application (First Application) for possession relied on Ms Anderson’s failure to pay rent and was heard by Deputy President Warren. Deputy President Warren made orders and gave reasons on 19 April 2024 requiring Ms Anderson to vacate the property by 19 April 2024: Sharpe v Anderson (Residential Tenancies) [2024] VCAT 375.

(b)    The second application filed on 12 May 2023 (Second Application) relied on the Fourth Notice. This application was determined by Senior Member Campana, who was satisfied that it was reasonable and proportionate to make a possession order against Ms Anderson: Sharpe v Anderson (Residential Tenancies) [2024] VCAT 381.

19    Ms Anderson sought to appeal both the decisions of Deputy President Warren and of Senior Member Campana. Justice Gorton heard the appeal, with each application for leave to appeal dismissed on 29 May 2024: Anderson v Sharpe (No 2) [2024] VSC 279. Ms Anderson sought leave to appeal this decision to the Court of Appeal, who refused leave to appeal on 19 July 2024: Anderson v Sharpe [2024] VSCA 166.

20    By reason of the order of the Court of Appeal made on 19 July 2024, Ms Anderson was required to vacate the Property by 4.30 pm on 3 August 2024. On 31 July 2024, Ms Anderson emailed the chambers of the primary judge, foreshadowing an application for adjournment of the hearing listed on 8 August 2024. Ms Anderson provided an affidavit in support sworn on 31 July 2024. On 3 August 2024, police arrived at the Property and Ms Anderson subsequently vacated the Property, leaving behind certain possessions and documents in the garage of the Property. Within this period, Ms Anderson was required to find temporary accommodation for herself and her two elderly dogs.

3.    Adjournment application

21    The hearing was set down for two days beginning 8 August 2024, but concluded on the first day. The details concerning the adjournment application are taken from the hearing transcripts and the primary judge’s ex tempore reasons delivered on that date.

22    After business hours on 31 July 2024, Ms Anderson sent an email to the primary judge’s chambers attaching an affidavit of the same date and foreshadowing that she would seek an adjournment of the hearing on the grounds that her preparation for the hearing was prejudiced by the conduct of Ray White Benalla and the decision of the Victorian Court of Appeal. The primary judge directed that any adjournment application would be dealt with at the commencement of the hearing.

23    Ms Anderson made her adjournment application at the outset of the hearing on Thursday 8 August 2024, seeking a one-month adjournment. The oral adjournment application was based on three matters: the production of an asbestos report, the late filing of an affidavit, and the impact of the Supreme Court decision which resulted in Ms Anderson’s eviction from the Property. The primary judge correctly rejected the first two matters as grounds for an adjournment, which are not relevant to this appeal.

24    Ms Anderson gave oral evidence in relation to her application, on which she was cross-examined. Relevantly, Ms Anderson gave evidence as to the third ground of her application, amongst other things, that she:

(a)    had to vacate the Property by 4.30 pm on the Saturday before the hearing;

(b)    was informed by the Benalla police that they would execute the warrant to evict at 4.35 pm on the Saturday;

(c)    could not take any of her documents with her as she left the Property in a hurry as the police were coming to evict her and were sitting in their car outside the Property at 4.25 pm;

(d)    had left her documents in the garage at the Property;

(e)    had spent the two weeks prior to 3 August 2024, trying to find alternative accommodation and seeking assistance with finding alternative accommodation including meeting with Beyond Housing, St Vincent’s Assistance, Anglicare, Benalla Homelessness Response Group and the Benalla Anglican Church in the week prior to her eviction;

(f)    experienced difficulty finding alternative accommodation that would accept her two elderly dogs;

(g)    was currently staying in temporary accommodation with her two dogs and minimal belongings; and

(h)    did not have her computer.

25    As to the temporary accommodation, Ms Anderson gave evidence that it was a share property, and the other occupant was unsure about the dogs. Ms Anderson’s evidence was that she had left home at 6.00 am on the morning of the hearing, that the dogs had been shut in the laundry since then, and that if she did not get home before the share house occupant got back from work at 5.30 pm to clean up any mess the dogs might have made, she would be thrown out. Ms Anderson gave evidence that her train left at 12.30 pm and that would get her home by 2.30 pm in time to clean up any dog mess before the other share house occupant returned.

26    The hearing was adjourned at 11.02 am with the primary judge stating that she would return to deliver ex tempore reasons about whether she would grant the adjournment or not.

27    When the primary judge returned at 12.03 pm to deliver her reasons, Ms Anderson had left the courtroom, after informing her Honour’s associate that she would be leaving, and was not in the court building. After handing down her reasons for refusing the adjournment, the primary judge observed:

For the record, I make the following remarks: as I alluded to earlier, the applicant has left the court. She was aware that I was to deliver reasons in respect of her adjournment application. I did not at any time give her permission to leave the court. She certainly appeared this morning and participated in the hearing. I have no formal explanation for why she left other than the brief reference to having to leave because there were dogs left inside the share home where she’s now residing. In all the circumstances that have occurred this morning, the court would have expected her reasonably to have understood that she should have remained to hear whether her adjournment was granted or otherwise.

She elected not to do so, and I’m not convinced that her reasons were proper reasons.

Mr Hibble has made an application that I should proceed to conduct the hearing, and I’m satisfied that I should, having refused the adjournment, for all the reasons I’ve given. Although, on one view, the applicant may have abandoned her application, the court is seized with the proceedings, it has time today, and it ought to conduct the hearing today to conclude the proceedings, consistent with the objectives in section 5 of the Federal Circuit and Family Court of Australia Act, that is to conclude proceedings effectively and efficiently.

However, out of an abundance of caution because Ms Anderson is self-represented, I will receive her affidavit-in-chief, I will receive the respondent’s evidence-in-chief, and I will receive Mr Hibble’s written submissions already filed, and permit Ms Anderson to file written submissions in response, and the judgment in this matter will be reserved on the basis of the two affidavits and the two written submissions.

28    The primary judge then continued the hearing on the basis of the affidavit material before her and the submissions made on behalf of Ray White Benalla. The primary judge gave leave for Ms Anderson to file written submissions in closing in response to the Ray White Benalla’s written submissions within 14 days of the hearing on 8 August 2024. Ms Anderson filed her submissions in accordance with this direction on 21 August 2024.

4.    Primary Judgment

29    At the outset, her Honour noted at PJ [8] that the matter was listed for final hearing and that Ms Anderson sought an adjournment, which was opposed by Ray White Benalla. When the hearing was resumed, after it was stood down to allow her Honour to consider the adjournment application, Ms Anderson did not remain for the balance of the hearing: PJ [9].

30    The primary judge noted that she gave “extensive oral reasons for not being satisfied that the adjournment should be granted”: PJ [10]. I pause here to observe that the primary judge’s oral ex tempore reasons for refusing the adjournment had not been published prior to the hearing of this appeal, nor was the transcript of those reasons available. I directed my chambers to obtain a copy of these reasons from the Court’s transcript provider, VIQ Solutions. Although the request was made prior to the hearing of the appeal, the transcript was not made available to my chambers until the day after the hearing of the appeal had concluded.

31    At PJ [16]–[21], the primary judge rejected Ray White Benalla’s submission that the FCFCoA did not have jurisdiction to hear this matter, as the FCFCoA does have jurisdiction to hear and determine claims arising under the ACL.

32    The primary judge then considered the proceeding “likely ought to be dismissed” because of estoppel principles or because the proceeding is an abuse of process: at PJ [25]. However, “out of an abundance of caution”, the primary judge considered Ms Anderson’s pleaded claims.

33    The primary judge considered the provisions relating to statutory unconscionability under ss 20, 21 and 22 of the ACL at PJ [27]–[30]. At PJ [31]–[32], the primary judge summarised the relevant principles relating to statutory unconscionability espoused by the Full Court in Australian Competition and Consumer Commission v Mazda Australia Pty Limited [2023] FCAFC 45 (Mazda FC).

34    At PJ [33]–[51], the primary judge made relevant factual findings based on the evidence before her. Due to Ms Anderson’s lack of participation in the hearing, she did not cross-examine or adduce further admissible evidence to contradict evidence which was filed in the proceeding. For example, in relation to Ms Anderson’s case as to whether the First Notice was issued on a bona fide basis, the primary judge noted at PJ [42] that:

… the applicant invites the Court to accept her subjective perception, opinion or speculation about the reason for the issuing of the notice to vacate. The applicant’s perception, opinion and speculation constitute inadmissible evidence. On the balance of probabilities, the Court is not persuaded that the reason given by the landlord was false. Nor has the applicant persuaded me that the respondent had knowledge that the contents of the statutory declaration was untrue.

35    The primary judge also considered that Ms Anderson had purposefully obstructed works and repairs in an unreasonable fashion at PJ [46], also finding that Ray White Benalla “acted as expected of a real estate property agent for the landlord pursuant to obligations under the property management agreement” at PJ [49].

36    The primary judge rejected the assertion that Ray White Benalla acted in a retaliatory manner or made false representations at PJ [50].

37    At PJ [53], the primary judge explained that the conduct of Ray White Benalla was not unconscionable. At PJ [53] and [55], the primary judge expressed the following in relation to matters raised in Ms Anderson’s submissions.

(a)    There is no probative evidence that Ray White Benalla departed from a professional standard or contrary to the industry code. Instead, Ms Anderson asked the Court to draw an inference on the evidence;

(b)    Ray White Benalla did not act dishonestly or unfairly, did not induce breaches of the tenancy agreement, fail to obtain relevant information, and fail or neglected to address repair issues; and

(c)    Ray White Benalla acted consistently with their obligations under the property management agreement and in a professional and businesslike manner.

(d)    Ray White Benalla did not put Ms Anderson at financial disadvantage. She inspected the rental property and was aware of its condition before taking the lease. Further, she was warned to make her own enquiries, and no false representations had been established.

(e)    Ray White Benalla was not required to inform Ms Anderson, prior to her tenancy, that the rental property would be needed for the landlord’s daughter. Further, the tenancy agreements were only for fixed terms and the date by which vacation was required pursuant to the first notice to vacate was after the expiry of the fixed term.

(f)    Ray White Benalla did not mislead Ms Anderson into entering the lease and there was no evidence before the Court of Ms Anderson telling Ray White Benalla about her special needs at any time before entering the lease.

38    At PJ [56]–[60], the primary judge also dismissed additional submissions made by Ms Anderson which the primary judge said were without merit as they were not supported by the findings she had made, or involved conjecture and speculation about matters relating to State legislation which the Court could not determine.

39    At PJ [61], the primary judge finished with the following observation about Ms Anderson:

…The conduct of the applicant and the terms of her communication are aggressive, threatening and intimidating. Her communications demonstrate a capacity to articulately and fervently pursue in a persistent manner her subjective point of view, which belies being harassed or disempowered and threatened as claimed.

5.    Appeal

40    The Notice of Appeal dated 28 November 2024 lists the following grounds of appeal:

(a)    Ground 1:

The primary judge erred by failing to consider case law precedent in her decision, as submitted by the Appellant in her Submission for the Applicant accepted for filing on 22 August 2024.

(b)    Ground 2:

The primary judge erred by failing to consider industry regulations in her decision, as submitted by the Appellant in her Submission for the Applicant accepted for filing on 22 August 2024.

(c)    Ground 3:

The primary judge erred by failing to consider relevant statutory law in her decision, specifically offences under the Residential Tenancies Act 1997 (RTA).

(d)    Ground 4:

The primary judge erred by refusing to adjourn the hearing after the Appellant was made homeless by the Respondent’s actions less than a week before the hearing leaving her without access to her documents.

(e)    Ground 5:

The primary judge erred by failing to provide the Appellant with a fair opportunity to be heard.

6.    Grounds 1 and 2

41    Grounds 1 and 2 are without merit and can be dismissed in relatively short compass.

6.1    Submissions

42    In her written submissions, Ms Anderson grouped her submissions in relation to Grounds 1 and 2 together, stating:

Grounds 1 and 2 of this appeal contend that the primary judge erred by failing to consider case law precedent and industry regulations in her decision, as submitted by the Appellant in her Submission for the Applicant accepted for filing on 22 August 2024.

a)    Judge Taglieri does not record the case law cited by the Appellant in her judgment and appears to have disregarded the Appellant’s submission altogether.

b)    The Appellant refers to and relies on that submission in this appeal.

43    In her oral submissions, Ms Anderson noted that the primary judge did not expressly consider the cases of Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (2021) 285 FCR 133 (Quantum FC) or Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525 (Paciocco HC), cited in her submissions in the proceeding below, and that this was sufficient to conclude that her Honour did not consider case law which forms precedent.

44    Ray White Benalla contends that it is incorrect on Ms Anderson’s part to advance that the primary judge did not consider case law, which is precedent, cited in her submissions. In Ray White Benalla’s view, not only does PJ [29]–[32] set out the relevant case law, but PJ [32] expressly references the two authorities relied on by Ms Anderson in her written submissions at first instance, namely: Quantum FC and Paciocco v Australia and New Zealand Banking Group Limited (2015) 236 FCR 199 (Paciocco FC).

45    With respect to the contention that the primary judge did not consider industry regulations, Ray White Benalla notes that the primary judge expressly refers to and rejects Ms Anderson’s submissions made with respect to the industry regulations. At PJ [53(a)], the primary judge expresses that “[t]here is no probative evidence about how they departed from a professional standard or contrary to the industry code. Instead, the applicant asks the Court to draw an inference on the evidence…”.

46    As such, Ray White Benalla submits that no error arises by reason of Grounds 1 or 2.

6.2    Consideration

47    In her written closing submissions, Ms Anderson cited the decisions of Quantum FC and Paciocco HC in the following manner:

(a)    “Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd [2021] FCAFC 40 [2021]: 87 – 95”; and

(b)    “Paciocco v Australia & New Zealand Banking Group Ltd (2016) 90 AL.JR 835; [2016] HCA 28”.

48    The primary judge at PJ [32] quoted the majority of the Full Court in Mazda FC at [487]−[488] (per Mortimer and Halley JJ) as follows:

Finally, it is to be noted that whilst exploitation of “some form of pre-existing disability, vulnerability or disadvantage” is often a feature of unconscionable conduct, it is not a necessary feature for the impugned conduct to fall within the meaning of s 21 of the ACL: Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (2021) 285 FCR 133; [2021] FCAFC 40 at [78] (Allsop CJ, Besanko and McKerracher JJ).

All of these authorities emphasise that the task is an evaluative one. The conclusions reached may be “contestable” in the sense that reasonable judicial minds may differ, as Allsop CJ observed in Paciocco [v Australia and New Zealand Banking Group Limited [2015] FCAFC 50] at [304].

49    Whilst the reference to “Paciocco” is a reference to the Full Court’s reasons, and not those of the High Court, it is evident from PJ [26]–[32] that the primary judge takes into consideration the relevant law for statutory unconscionability and unconscionable conduct. The legal principles summarised at PJ [31] evidence the primary judge’s consideration of the binding legal principles expressed in Quantum FC at [76], [87], [91]−[92].

50    Although the primary judge did not expressly cite Paciocco HC in her reasons, this does not indicate that the relevant principles from case law were not considered. When reviewing the Primary Judgment, it becomes clear that the primary judge did consult the relevant case law and precedent.

51    I acknowledge that Ms Anderson is a litigant-in-person and, without discounting the effort and preparation she invested in formulating her written submissions, it may be that the differences in citation between her submissions and those in the Primary Judgment contributed to any confusion underlying this ground of appeal.

52    Notwithstanding, having found that the primary did appropriately consider the relevant case law, Ground 1 of the appeal must be dismissed.

53    With respect to Ground 2, the primary judge at PJ [53] indicates that no evidence was filed by Ms Anderson to explain how Ray White Benalla’s conduct departed from any standard or code.

54    In her written closing submissions at first instance, Ms Anderson explained the following at [6]−[7]:

For the Respondent, acceptable commercial behaviour is set out in its Professional Conduct Regulations (industry code), the objective of which is to prescribe rules of professional conduct for estate agents and agent’s representatives, with the authorising provision being section 99 of the Estate Agents Act 1980.

The Applicant relied on the following specific provisions of the Respondent’s industry code to protect her interests when leasing the property through the Respondent:

a.    Provision 6 - Knowledge of the law

b.    Provision 10 - Fairness and honesty;

c.    Provision 13 - Estate agent or agent’s representatives not to induce breach of contract;

d.    Provision 14 - Estate agent or agent’s representatives not to induce breach of contract;

e.    Provision 15 - Estate agent or agent's representative to ascertain information;

f.    Provision 18 - Maintenance and repairs of residential rental property;

g.    Provision 20 - Dispute resolution procedures;

h.    Provision 21 - Estate agent or agent’s representative to advise of dispute resolution procedures.

(Footnotes omitted.)

55    While these industry regulations may inform the appropriate standard of behaviour for a real estate agent, and inform the non-exhaustive considerations under s 22 of the ACL, any breach of these regulations does not automatically give rise to a claim of unconscionable conduct.

56    While the primary judge did not list each relevant provision cited by Ms Anderson, I reject the Ms Anderson’s contention that the primary judge failed to consider industry regulations. The primary judge at PJ [53] explained that there was no probative evidence before her regarding how Ray White Benalla’s conduct departed from any applicable code. In light of the facts and material before her Honour, or lack thereof, I consider it was appropriate for the primary judge to have approached the industry regulations as she did. More is required than simply raising the industry regulations and asserting that they have been breached; evidence was required to substantiate any such claims.

57    Ground 2 of the appeal is dismissed.

7.    Ground 3

7.1    Submissions

58    Ms Anderson submits that the offences under the RT Act were set out in her Statement of Claim and should have been considered along with the evidence when reviewing the industry regulations governing Ray White Benalla’s conduct.

59    Ray White Benalla contends that the primary judge assessed that Ms Anderson’s claim includes breaches (including offences) under the RT Act insofar as such alleged breaches of the RT Act purport to prove unconscionable conduct under the provisions in the ACL.

60    Ray White Benalla expressly denied the alleged breaches of the RT Act and submitted that the primary judge correctly held that the FCFCoA could not make findings about whether the RT Act had been breached as it is Victorian legislation and the FCFCoA only exercises jurisdiction under Federal legislation at PJ [18]. Ray White Benalla noted that the primary judge could make findings of fact (as distinct from findings as to breach of the RT Act) which could lead to a finding of unconscionable conduct. That is, without considering whether the conduct found to have occurred constitutes a breach of the Victorian legislation, it may amount to unconscionable conduct contrary to the ACL.

61    Based on the evidence before the Court, Ray White Benalla notes that the primary judge held that Ms Anderson bore the onus of persuading the Court that its conduct was unconscionable and that she failed to satisfy the Court that it had acted unconscionably in anyway alleged by her.

7.2    Consideration

62    In the Statement of Claim, Ms Anderson alleged various breaches of Div 5 of the RT Act and the commission of offences under ss 502, 503 and 504.

63    Section 502 of the RT Act states:

502    Offence to persuade person not to exercise rights or take proceedings

A person must not, in relation to a residential rental agreement, a proposed residential rental agreement, a site agreement, a proposed site agreement or a residency right, by threat or intimidation persuade or attempt to persuade—

(a)    a party to the residential rental agreement or proposed residential rental agreement; or

(b)    a resident; or

(c)    a rooming house operator; or

(d)    a caravan owner or a caravan park owner; or

(e)    a party to the site agreement or proposed site agreement—

not to exercise their rights to take or continue proceedings under this Act.

Penalty:    150 penalty units in the case of a natural person;

750 penalty units in the case of a body corporate.

64    Section 503 of the RT Act states:

503    Offence to aid, abet, counsel or procure commission of offence

A person must not in relation to a residential rental agreement, a proposed residential rental agreement, a site agreement, a proposed site agreement or a residency right, aid, abet, counsel or procure the commission of an offence against this Act.

Penalty:        150 penalty units in the case of a natural person;

750 penalty units in the case of a body corporate.

65    Section 504 of the RT Act states:

504 Offence to give false information

A person must not knowingly make a false or misleading statement or provide false or misleading information to the Authority or the Director under this Act.

Penalty:     150 penalty units in the case of a natural person;

750 penalty units in the case of a body corporate.

66    Whilst the FCFCoA may have jurisdiction under relevant cross-vesting legislation to determine various associated matters under State legislation, that jurisdiction does not extend to State criminal offences.

67    At its highest, Ms Anderson’s case is that if, on the evidence, the elements of the RT Act offences are established, that is relevant to the unconscionable conduct claim. I accept that Ms Anderson bore the onus of proof to make out the elements of each offence alleged under her Statement of Claim and that there was insufficient evidence provided by Ms Anderson to make out any of the alleged offences under the RT Act.

68     Ms Anderson does not demonstrate any judicial error under Ground 3 of the appeal.

8.    Grounds 4 and 5

69    Ground 4 is subsumed within Ground 5 so I will deal with them together.

8.1    Submissions

70    Ms Anderson contends that the primary judge erred by refusing to adjourn the hearing in circumstances where she was made homeless less than a week before the hearing, leaving her without access to her documents and computer. As a result, Ms Anderson contends that she was denied the opportunity to put her case at trial and was denied procedural fairness.

71    Ray White Benalla notes that, in relation to Ground 4, Ms Anderson has no right to appeal, even with leave, from the decision to refuse her adjournment application by virtue of s 24(1AA) of the FCA Act. Pursuant to this section, an appeal must not be brought from a judgment referred to in s 24(1)(d) if the order was a decision to adjourn a hearing: s 24(1AA)(b)(ii) of the FCA Act.

72    Ray White Benalla cites Tran v Singh [2019] FCA 70, where Thawley J expressed at [37]–[38]:

There is no provision which qualifies s 24(1AA) by, for example, permitting an appeal by leave notwithstanding the prohibition contained in s 24(1AA).

Section 24(1A) contemplates that an appeal might be brought from an “interlocutory decision” if leave is given. Section 24(1A) must be read with s 24(1AA). Section 24(1AA) clearly evinces an intention that determinations or decisions of the kind there described not be the subject of appeal, with or without leave. That provision cannot be sidestepped on the basis that the determination or decision can be characterised as an “interlocutory decision” which would otherwise be amenable to appeal if leave were obtained in accordance with s 24(1A). Indeed, if s 24(1A) had that effect, s 24(1AA) be rendered practically ineffective.

73    In relation to Ground 5, Ray White Benalla relied on Jacobson J’s observation in Wilson v Alexander [2003] FCA 183 at [50] that “a party cannot turn his back on the Court and expect that the proceedings will remain permanently in limbo without any final determination” and submitted that by evincing an intention to play no further part of the proceedings, Ms Anderson effectively closed her case.

8.2    Consideration

74    Ms Anderson, an older person with a chronic health condition who was representing herself, sought a month-long adjournment of the hearing on the basis that she had been forced to vacate her home on the weekend prior to the trial, leaving with minimal belongings and two elderly dogs, but not her legal documents or computer.

75    This was the first application by Ms Anderson for an adjournment in the course of the proceeding.

76    By Ground 4, Ms Anderson contends that the discretion of the primary judge in refusing the adjournment miscarried. By Ground 5, Ms Anderson challenges the effect the refusal of the adjournment had on her ability to receive a fair trial, rather than the interlocutory decision to refuse the adjournment.

77    The majority of the High Court in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 observed at [6] (per Gaudron, McHugh and Hayne JJ) that in an appeal against a final judgment, an appellate court can correct any interlocutory order which affected the final result, citing Nolan v Clifford (1904) 1 CLR 429, where Griffiths CJ remarked at 431 that “[o]n an appeal from a final judgment, all points raised in the course of the case are open to the unsuccessful party”. The qualification “which affected the final result” was said at [7] of Gerlach to reflect the well-established principle that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice.

78    The primary judge observed that her discretion as to whether to grant the adjournment should be exercised with regard to the objectives of the Federal Circuit and Family Court of Australia Act 2021 (Cth), that justice be delivered effectively and efficiently, and in particular it is in the public interest’s “that matters be heard when they are set down on allocated dates otherwise adjournments may lead to consequential waste of judicial time, delay and costs, interfering with other cases and the onerous workload of this Court”.

79    In exercising her discretion, the primary judge observed that she did not consider the prejudice to Ray White Benalla to be a great factor in her discretionary assessment. Rather, the primary judge gave great weight to the lack of what she considered to be a satisfactory explanation for why Ms Anderson could not proceed that day as tipping the balance in favour of refusing the adjournment.

80    The primary judge also gave weight to the history of the proceedings, taking into account that since January and April, Ms Anderson demonstrated signs of preparation for the hearing, including filing her affidavit in support of her case according to the Court’s timetable.

81    As to Ms Anderson’s inability to represent herself properly due to her lack of documents and computer, the primary judge observed:

While I am dubious of the claim that the applicant would not take necessary documents with her when she left the property on 3 August 2024 knowing that she had not been given an adjournment having raised that on 31 July and that the Court would be hearing the application to adjourn this morning, I am satisfied that the availability of a comprehensive court book prepared by the respondent can be utilised by her during the course of the defended hearing. To the extent that the applicant may claim that she will need to check the court book, I would permit her time to review the index to the court book, identify any material she says is relevant but not included in it, and I would give her time as she seeks during the course of the hearing to become familiar with material as she requests.

82    The primary judge noted that there had only been “vague reference” to Ms Anderson’s personal distress and pressure from “recent events concerning her being required to vacate the property”. Whilst Ms Anderson had given her evidence of distress under oath, the primary judge gave it “little or no weight” as there was “no probative medical evidence demonstrating that the applicant is medically or psychologically incapable of presenting her case”.

83    Buried in the materials as an annexure to Ms Anderson’s 11 June 2024 affidavit is a medical report from Emeritus Professor Geoffrey Littlejohn, a rheumatologist, dated 14 December 2016. Whilst the medical report was at the date of the hearing some seven years old, it set out Professor Littlejohn’s expert opinion that Ms Anderson had, dating back to at least 2008, the clinical features of, fibromyalgia characterised by, amongst others, widespread pain, irritable bowel symptoms and neuralgic symptoms. Professor Littlejohn wrote that the symptoms of Ms Anderson’s fibromyalgia “have at various times been aggravated by stress”. Whilst this medical report does not address Ms Anderson’s ability to present her case at the hearing before the primary judge, it does establish that she has a chronic health condition which is exacerbated by stress.

84    The principles governing the exercise of discretion in an adjournment application are not in doubt and they are reflected in the High Court decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. As French CJ observed at [5]:

In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system…

See also the observations of the plurality to similar effect at [93], [95] and [100] (per Gummow, Hayne, Crennan, Kiefel and Bell JJ).

85    In the exercise of discretion to refuse or grant an adjournment “the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the Court as well as the interests of the parties”: Sali v SPC Ltd (1993) 116 ALR 625 at 629 (per Brennan, Deane and McHugh JJ).

86    The Full Court observed in Wyman v Queensland (2015) 235 FCR 464 at [63] (per North, Barker and White JJ) that:

…a failure to grant an adjournment can in some circumstances constitute a denial of procedural fairness. That circumstance will obtain if a party has been denied a reasonable opportunity to present its case.

87    In exercising her discretion, I consider that the primary judge overlooked an important discretionary factor: the need to maintain public confidence in the judicial system. Considerations of court efficiency and competing court resources are important considerations in the modern court environment. However, they must be part of the consideration, not the totality. As observed by French CJ in Aon, another important consideration to be taken into account is the need to maintain public confidence in the judicial system.

88    Denying Ms Anderson any adjournment in the circumstances of this case does not assist in maintaining public confidence in the judicial system and amounts to a denial of procedural fairness. Compounding the impression that procedural fairness was lacking in this case is the fact that the primary judge’s reasons for refusing the adjournment were delivered ex tempore in Court and never published or otherwise circulated to the parties. As I noted above, there was no written record of these reasons until a copy was supplied to my chambers after the appeal hearing. Accordingly, had Ms Anderson wished, she was unable to access the reasons in formulating her grounds of appeal, or in seeking leave to appeal, if available, an interlocutory judgment of the Court.

89    In the exercise of judicial power, a judge must accord procedural fairness to litigants appearing before them. The requirements of procedural fairness include the provision of a reasonable opportunity for litigants to present evidence and to make submissions: Boensch v Somerville Legal (2021) 286 FCR 293 at [85] (per Katzmann, Markovic and Abraham JJ).

90    In my view, the primary judge’s refusal to grant an adjournment of the hearing on 8 August 2024, in the circumstances, was a clear denial of procedural fairness. Ms Anderson’s ability to put her case to the best of her ability on the issues in the case, including challenging the evidence put against her and making oral submissions, was impeded. Having proper regard to Ms Anderson’s situation at the time, it was inappropriate for the hearing to proceed. That procedural unfairness was compounded by the fact that, although the primary judge delivered oral reasons in Court that day, no written copy was subsequently provided to the parties. Ms Anderson was entitled to a fair opportunity to correct or contradict any relevant material prejudicial to her: Kioa v West (1985) 159 CLR 550 at 569 (per Gibbs CJ).

91    Whilst Ms Anderson may have demonstrated a capacity to articulately and fervently pursue in a persistent manner her subjective point of view (at PJ [61]), this should have been reviewed in the context that she was an older person with a chronic health condition who was representing herself and had experienced a stressful two-week period which culminated in her leaving her home of several years in a hurry. Considerations of procedural fairness required that she be given an adjournment, especially where the adjournment sought was only a month.

92    The question then arises as to whether that procedural unfairness is sufficient to justify the setting aside of the primary judge’s orders and the making of an order for a new trial.

93    In Stead v State Government Insurance Commission (1986) 161 CLR 141, the High Court at 145 (per Mason, Wilson, Brennan, Deane and Dawson JJ) referred to the general principle expressed by the English Court of Appeal in Jones v. National Coal Board [1957] 2 QB 55 (per Denning, Romer and Parker LJJ) where Denning LJ (as his Lordship then was) said at 67:

There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.

94    Ms Anderson needs to show is that the denial of procedural fairness deprived her of the possibility of a successful outcome, rather than the probability of a different result, and in order to negate that possibility it would be necessary for this Court to find that a properly conducted trial could not possibly have produced a different result: Stead at 147 (per Mason, Wilson, Brennan, Deane and Dawson JJ); Nobarani v Mariconte (2018) 265 CLR 236 at [38]−[39] (per Kiefel CJ, Gageler, Nettle, Gordon, Edelman JJ). That is to be treated as a question of “realistic possibility”: Nathanson v Minister for Home Affairs (2022) 276 CLR 80 at [32]−[33] (per Kiefel CJ, Keane and Gleeson JJ); [45] and [59] (per Gageler J).

95    The majority in Nathanson held that where a tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity, and does not require the articulation of a specific course of action which could realistically have changed the result: see [2], [33], [34] and [39] (per Kiefel CJ, Keane and Gleeson JJ); [48] and [59] (per Gageler J).

96    Whilst Ms Anderson’s unconscionable conduct claim is weak, I am not able to conclude that a properly conducted trial could not possibly have produced a different result.

97    Accordingly, I find that Ms Anderson has established Ground 5 of the appeal.

9.    Conclusion

98    In light of Ground 5 being upheld, the appeal should be allowed, and the judgment of the primary judge set aside. I consider in the interest of maintaining public confidence in the administration of justice it is appropriate to remit the matter back to the FCFCoA for a new trial by a different judge.

99    As Ms Anderson was representing herself on appeal and is unlikely to have incurred any substantial recoverable costs, I consider that each party should bear its own costs of the appeal.

Associate:

Dated:    16 July 2025