Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nicholson v Office of Local Government [2020] NSWCATOD 162 Hearing dates: On the papers Date of orders: 6 May 2020 Decision date: 06 May 2020 Jurisdiction: Occupational Division Before: S Montgomery, Senior Member Decision: (1) The Tribunal declines to extend the time for lodgement of an appeal in regard to the decision of the Deputy Secretary, Local Government, Planning and Policy, Department of Planning, Industry and Environment dated 26 September 2019. (2) The appeal is dismissed. Catchwords: ADMINISTRATIVE LAW – procedure – time limits – appeal lodged out of time – no application for extension of time - principles to be applied – whether reasonable excuse for the delay in making the application. Legislation Cited: Civil and Administrative Tribunal Act 2013 Local Government Act 1993 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Tomko v Palasty (No 2) (2007) 71 NSWLR 61 Category: Procedural rulings Parties: Jeffrey Nicholson (Applicant) Office of Local Government (Respondent) Representation: Solicitors: Applicant (Self Represented) C Rowe (Respondent) File Number(s): 2019/00343923 Publication restriction: Nil Reasons for Decision Introduction 1. The issue before the Tribunal is whether the Tribunal should extend time for the making of an appeal to the Tribunal. Background 1. The substantive proceedings concern an appeal filed by Jeffrey Nicholson ("the Applicant" or "CIr Nicholson") against a decision of the Deputy Secretary, Local Government, Planning and Policy, Department of Planning, Industry and Environment ("the Respondent"). 2. By Order dated 26 September 2019, the Respondent suspended CIr Nicholson from civic office for a period of three months pursuant to section 440l(2)(g) of the Local Government Act 1993 ("the Act"). The period of suspension commenced on 8 October 2019 and ended on 7 January 2020. 3. Section 440I of the Act provides that: (1) The Departmental Chief Executive may take disciplinary action against a councillor if the Departmental Chief Executive is satisfied that-- (a) the councillor has engaged in misconduct (whether on the basis of a departmental report or a report by the Ombudsman or Independent Commission Against Corruption), and (b) disciplinary action is warranted. (2) The Departmental Chief Executive may take one or more of the following actions (and any such action is disciplinary action)-- (a) counsel the councillor, (b) reprimand the councillor, (c) by order, direct the councillor to cease engaging in the misconduct, (d) by order, direct the councillor to apologise for the misconduct in the manner specified in the order, (e) by order, direct the councillor to undertake training, (f) by order, direct the councillor to participate in mediation, (g) by order, suspend the councillor from civic office for a period not exceeding 3 months, (h) by order, suspend the councillor's right to be paid any fee or other remuneration, to which the councillor would otherwise be entitled as the holder of the civic office, in respect of a period not exceeding 3 months (without suspending the councillor from civic office for that period). … 1. CIr Nicholson indicated that he was advised of the Order on or about 26 September 2019. His appeal was lodged with the Tribunal on 1 November 2019. Applicable legal principles 1. Section 440L of the Act provides: 440L APPEALS AGAINST DISCIPLINARY ACTION (1) A councillor against whom disciplinary action (other than disciplinary action comprised only of counselling or reprimanding) is taken by the Departmental Chief Executive may appeal to the Civil and Administrative Tribunal against the decision of the Departmental Chief Executive to take disciplinary action. Note : An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013 . (2) An appeal must be made within 28 days after the day on which the councillor is notified of the Departmental Chief Executive's decision to take disciplinary action against the councillor. … 1. Accordingly, pursuant to section 440L of the Act CIr Nicholson's appeal was to be made within 28 days of 27 September 2019. That is, by 25 October 2019. 2. CIr Nicholson filed an External Appeal Form on 1 November 2019. He acknowledged that the External Appeal Form was lodged outside the time allowed by ticking the appropriate box and providing the following reasons: "I was upset with the findings and unable to deal with anyone as to receiving legal advice; Unable to complete my application until I obtained from Forbes Shire Council details of my submissions held on my iPad which is in the possession of Council and not available to me." 1. Section 31 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") provides: 31 External appeal jurisdiction of Tribunal (1) The Tribunal has "external appeal jurisdiction" over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision (or class of decisions). (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its external appeal jurisdiction-- (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An "appealable external decision" is a decision of an external decision-maker over which the Tribunal has external appeal jurisdiction. (4) An "external appeal" is an appeal to the Tribunal against an appealable external decision. (5) A provision of enabling legislation that provides for a decision of an external decision-maker to be appealed to the Tribunal extends to the following-- (a) a decision made by a person to whom the function of making the decision has been delegated, (b) if the provision specifies the decision-maker by reference to the holding of a particular office or appointment--a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment, (c) a decision made by any other person authorised to exercise the function of making the decision. (6) Nothing in this section permits external appeal jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act. 1. Section 40 of the NCAT Act provides: 40 Making of applications and appeals An application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules. 1. Rule 25 of the Civil and Administrative Tribunal Rules 2014 provides: 25 External and internal appeals (1) An external or internal appeal (including, where required, an application for leave to appeal) may be made by lodging a notice of appeal. (2) The notice of appeal must be: (a) in or to the effect of the approved form, and (b) duly completed, and (c) lodged at the Registry, and (d) accompanied by the applicable fee (if any) for the appeal. (3) A notice of appeal need not specify the Division of the Tribunal (if any) to which the function of determining the appeal is allocated by the Act. However, if the appropriate Division is not specified or an incorrect Division is specified, a registrar may complete or alter the notice form accordingly. (4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged: (a) in the case where the enabling legislation specifies the period within which the appeal is to be made—within the period specified, or (b) in the case of an internal appeal against a decision made in residential proceedings—within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later), or (c) in any other case—within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later). (5) An appellant who lodges a notice of appeal must serve on each respondent a sealed copy of the notice as soon as practicable after lodging the notice. 1. Section 41 of the NCAT Act provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 1. Section 36 of the NCAT Act provides: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it— (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal— (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. 1. As indicated, the Tribunal may extend time for the making of an application to it under section 41 of the NCAT Act. Section 41 does not require that the Tribunal is to form an opinion that the applicant has provided a reasonable excuse for the delay in making the application. However, in my view this may be a relevant consideration if the Tribunal is to make an order of its own volition. 2. The Tribunal has considered the principles to be applied in regard to applications under section 41 and its predecessors on a number of occasions. 3. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, the Appeal Panel said at paragraphs [18] – [22]: 18. Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings". 19. An informative exposition of the role and nature of provisions which permit a Court or Tribunal to extend the time limits established for the orderly conduct of proceedings, including the time in which to lodge an appeal, is found in the decision of McHugh J sitting as a single justice of the High Court in Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2]: The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. [1978] VicRp 27; (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg [1967] VicRp 113; (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935: "The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion." 20. The Courts have identified in numerous cases various factors that should be considered in deciding whether to grant an extension of time in which to appeal. Substantially the same principles have also been applied by the Appeal Panel of the Administrative Decisions Tribunal (ADT), one of the predecessors of the Tribunal, in relation to appeals in the ADT - Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16], Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. These authorities provide useful guidance on the principles that are to be applied by the Appeal Panel in this regard. 21. Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice. 22. The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]. 1. At paragraph [35] the Appeal Panel suggested that "it may be that the appellant would have to satisfy the Panel that her case has more substantial merit than merely being fairly arguable". This suggestion is made by reference to views expressed by Hodgson JA in Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at paragraph [14]: 14 In my opinion, there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable. Steps taken by the parties 1. CIr Nicholson did not file an application for extension of the time to lodge his appeal at the time that he lodged the appeal. He appeared by telephone at the Directions Hearing before Judge Cole on 4 December 2019. He did not make an oral application for an extension of time on that occasion. 2. Judge Cole made directions for the prosecution of the matter. This included a direction that CIr Nicholson file and serve an application for an extension of the time for bringing the appeal. CIr Nicholson did not file an application for extension of the time in accordance with that direction. 3. The Tribunal nevertheless has power to grant an extension of time in which to appeal in the present matter. 4. The Respondent has filed written submissions opposing any extension of the time for CIr Nicholson to lodge his appeal. It contends that this is not a matter in which the Tribunal should extend the time by its own volition. The Respondent has raised the following issues for consideration: 1. No application for an extension has been filed and served; 2. CIr Nicholson's reasons are inadequate. Those supplied are equivocal and without supporting evidence as to why the External Appeal form was served on the Respondent late (and only after the Respondent made contact with CIr Nicholson to inquire as to his position); 3. The length of the delay, while short is not explained satisfactorily and there is no supporting evidence; 4. CIr Nicholson has not explained the injustice or prejudice he would suffer in the event the extension was not granted; 5. The Respondent is entitled to rely not only on the Deputy Secretary's decision but also the fact that the penalty has been suffered; and 6. CIr Nicholson has failed to establish the requisite substantial merit, militating against granting an extension of time. 1. The Respondent submits that the absence of any proper explanation weighs heavily against the grant of leave to extend time. It submitted: 1. The grant of leave would be contrary to the guiding principle set out in the Act namely that in relation to proceedings in the Tribunal, the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act section 36(1). 2. The proceedings are now inutile. Absent a stay the penalty has been suffered and the substance of the appeal is, effectively, spent. 3. CIr Nicholson proffers no evidence of any prejudice he will suffer if the grant of leave is now refused. 4. No application for extension of time was filed or served. No oral application for an extension of time was made at the directions hearing on 4 December 2019. 5. No application for a stay was made either at the time of filing the External Appeal Form, or at the Directions Hearing on 4 December 2019. 6. The absence of an application for an extension of time and a stay of penalty places NCAT in a position where, absent its own motion, it does not technically presently have the jurisdiction to consider the matter. 7. CIr Nicholson was required to file and serve material on or before 24 January 2020 on the issue of extension of time. He did not comply with that direction. Consideration 1. The decision that is the subject of the substantive matter was taken by the Deputy Secretary on 26 September 2019. The relevant Order suspended CIr Nicholson from civic office for a period of three months commencing on 8 October 2019 and ending on 7 January 2020. 2. CIr Nicholson's External Appeal form indicates that he was notified of the decision on or about 26 September 2019. The material provided by the respondent suggests that CIr Nicholson was formally advised of the Order by email on 27 September 2019. A letter to CIr Nicholson dated 26 September 2019 advised him that he had been suspended and also advised him of his appeal rights. This letter included the advice that he had 28 days from the date of service of the Order to appeal the decision. 3. CIr Nicholson has not indicated that he was unaware of the time for bringing an appeal. As noted above, his explanation for the delay was: "I was upset with the findings and unable to deal with anyone as to receiving legal advice; Unable to complete my application until I obtained from Forbes Shire Council details of my submissions held on my iPad which is in the possession of Council and not available to me." 1. He has not filed any further details to explain the delay. He apparently contacted the Respondent in that regard but did not significantly elaborate on his explanation for the delay. The Respondent has provided a copy of an email, purportedly sent by the Applicant, which it received on 28 January 2020. In relation to the lodgement of the Appeal the email stated: "Late Appeal 1. I was upset with the findings. I have a teenage daughter still at school. After all the media exposer of this case including the local paper, ABC radio, T.V. channels, and Facebook this had a huge impact on my family. Unable to complete this until my homelife was in order. 2. Then my solicitor was away and Forbes Shire Council had possession of my iPad which I needed to gain permission from OLG in order for me to access information off my iPad." 1. CIr Nicholson has not requested an extension of the time to lodge the appeal nor did he request a stay of the Respondent's decision. 2. There must be some material upon which the Tribunal can exercise its discretion. It is understandable that CIr Nicholson may have been upset by the findings and by the media coverage. However, he has not provided evidence, for example a medical certificate, to substantiate his position. He has not provided any evidence in regard to his attempts to obtain legal advice or that his solicitor was unavailable or in regard to his attempts to obtain access to his iPad. He has not provided any detail on which I could form an opinion in regard to any public interest considerations in favour of extending the time to lodge the appeal or in regard to possible injustice that he might suffer if the time is not extended. 3. As was noted in Jackson v NSW Land and Housing Corporation, the discretion to grant an extension of time must be exercised having regard to the guiding principle of facilitating the just, quick and cheap resolution of the real issue in the proceedings. The period of suspension has expired and therefore there appears to be little utility in determining whether or not the Respondent's decision was the correct and preferable one. 4. In my view, CIr Nicholson has not adequately explained the delay in bringing the appeal. 5. Further, if consideration is to be given to CIr Nicholson's prospects of success, as suggested by Hodgson JA in Tomko v Palasty (No 2), he must show, prima facie, that his case has more substantial merit than being merely arguable. He has not done so. 6. In the circumstances, it is my view that the Tribunal should not exercise its power to grant an extension of the time to lodge the appeal. 7. The Tribunal's external appeal jurisdiction in this matter is subject to a condition that the filing of the appeal has occurred within the period prescribed by section 440L of the Act. That is, the appeal must have been made within 28 days after the day on which CIr Nicholson was notified of the decision. As that condition has not been satisfied, the Tribunal does not have jurisdiction to deal with the matter. For that reason, the appeal should be dismissed. Orders 1. The Tribunal declines to extend the time for lodgement of an appeal in regard to the decision of the Deputy Secretary, Local Government, Planning and Policy, Department of Planning, Industry and Environment dated 26 September 2019. 2. The appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 February 2023