Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sethi v Cho [2023] NSWCATAP 221 Hearing dates: On the papers Date of orders: 28 July 2023 Decision date: 28 July 2023 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member Decision: 1. Leave to extend time to lodge the application to set aside or vary the decision of the Appeal Panel of 30 June 2023, published as Sethi v Cho [2023] NSWCATAP 179, is refused. 2. The application to set aside or vary the Appeal Panel's decision of 30 June 2023 in respect of the application for an order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) is listed for oral hearing on 3 August 2023 at 2.15pm. Catchwords: APPEALS – application to vary regularly made decisions of the Appeal Panel under regulation 9 of the Civil and Administrative Tribunal Regulations 2022 (NSW) – power of the Tribunal to do so where the terms of that regulation not engaged – separate factors to be considered in respect of an application to vary a decision regarding non-disclosure or non-publication Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 41, 50, 64, 80(2) Civil and Administrative Tribunal Regulations 2022 (NSW), reg 9 Cases Cited: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 In the Matter of An Appeal by Luck (2003) 78 ALJR 177 at 178-179; [2003] HCA 70 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Sethi v Cho [2023] NSWCATAP 179 Sethi v The Owners – Strata Plan No 93392 [2023] NSWSC 853 Texts Cited: None Cited Category: Procedural rulings Parties: Akhil Sethi (Applicant) Jo Cho (Respondent) Representation: Appellant (Self-represented) B Lou (lay advocate) (Respondent) File Number(s): 2023/00085892 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal NSW Jurisdiction: Consumer and Commercial Division Date of Decision: 01 March 2023 Before: G Ellis SC, Senior Member File Number(s): RT 22/56559, RT 23/03109 REASONS FOR DECISION Summary 1. On 30 June 2023, after a hearing conducted on 9 May 2023 attended by the applicant and a representative agent of the respondent, a differently constituted Appeal Panel refused the appellant leave to appeal a decision of the Consumer and Commercial Division that had terminated his tenancy with the respondent, and dismissed the appeal, save that the Appeal Panel allowed the applicant a further four weeks to vacate the premises which had been the subject of the tenancy and made machinery orders regarding the calculation and collection of any ongoing occupation fee. 2. The Appeal Panel gave reasons and that decision has been published: Sethi v Cho [2023] NSWCATAP 179. 3. On 11 July 2023, the applicant lodged an "Application to set aside or vary Tribunal decision". On its own terms, that application refers parties to reg 9 of the Civil and Administrative Tribunal Regulation 2022 (NSW) (Regulations), where the general power to set aside or vary a decision is contained. 4. The face of that form prominently advises parties to: "Only fill in this form to make an application for an order to set aside or vary a Tribunal decision that determines proceedings if: 1. All parties agree that the decision should be set aside or varied OR 2. You were not present when the decision was made and as a result your case was not adequately put to the Tribunal" 1. The form also makes it plain that such an application must be lodged within seven days of the decision. 2. One of the varied orders sought in the application is an order to stay the effect of the termination of the tenancy which was the subject of the appeal until "any other current or arising related matters are completely resolved and fully finalised." In that regard, the applicant referred to the fact that he had instituted proceedings in the Supreme Court numbered 2023/00137553. 3. However, no application for a stay was formally made in the interim. 4. Other varied orders sought included an order prohibiting the publication of the applicant's name and of any report of "any order or judgment". 5. I made directions from chambers for the parties to lodge and serve their evidence and submissions in respect of the application, in the following relevant terms: "The applicant is to lodge in the Appeal Registry and give to the respondent any further evidence and submissions in support of the application to set aside or vary the Tribunal's decisions on or before 20 July 2023, by email. Notation: Such submissions should address, but are not limited to, how Regulation 9 of the Civil and Administrative Tribunal Regulation 2022 (NSW) (Regulations) has any application in relation to the Appeal Panel's substantive decision refusing leave to appeal where: (a) the application does not appear to be being made by consent; and (b) the applicant was present at the hearing of the appeal on 9 May 2023. the appellant is also to lodge and serve a copy of the document initiating proceedings 2023/00137553 in the Supreme Court. The respondent is to lodge in the Appeal Registry and give to the applicant any evidence and submissions in opposition to the application on or before 27 July 2023, by email. As noted in the "Application to set aside or vary Tribunal decision" the application may be determined on the papers: Regulations, reg 9(8). If the Appeal Panel decides to conduct a hearing the parties will be advised." 1. As noted in those directions, the determination of applications under reg 9 may be conducted on the papers and a hearing is not required. As a result, there is no need to take submissions in that regard from the parties, or to formally make an order dispensing with a hearing of such an application under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. There were in fact two decisions made by the Appeal Panel on 30 June 2023, and it is clear the applicant seeks to set aside or vary them both. The first decision was to refuse leave to appeal, and dismiss the appeal, but to allow an extension of the stay on the order for possession (the Substantive Decision). The second decision came about because, after the applicant was advised the Substantive Decision was to be published to Caselaw, he made an application for an order under s 64 of the NCAT Act preventing that publication, which the same Appeal Panel refused. 3. Both parties have now lodged and served their material. I see no need for a hearing insofar as the application relates to the application to set aside or vary the Substantive Decision. For reasons I will return to, I take a different view about the application to set aside or vary the decision to refuse to make an order under s 64 of the NCAT Act, and I will list the application in that regard for a brief hearing. So that the application is not stymied, I will direct the Registry not to publish this decision to Caselaw until that application is resolved, and then only in accordance with my decision in respect of that application. 4. The respondent confirms that the application is opposed. The applicant acknowledges that he was present at the hearing of the appeal leading to the Substantive Decision he now seeks to set aside or vary. 5. Due to the imminent expiry of the extended stay on the order for possession, and the view I come to later about where any proper exercise of the applicant's rights to challenge the Substantive Decision may lie, it has been necessary to prepare this decision with some urgency. Consideration of the application in respect of the Substantive Decision 1. The applicant acknowledges his application was lodged two days out of time. In his application, he indicates that an explanation of the reasons for the delay and the basis for an extension is addressed in the attached submissions. It is not, at least in any clear fashion. Nor was it addressed in the submissions and evidence later filed by the applicant in the form of an affidavit. 2. I have power to extend time to lodge the application to set aside or vary the orders under s 41 of the NCAT Act. The relevant considerations, albeit addressed in the context of extending time in which to bring an appeal, were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: 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 applicant; 2. The discretion is to be exercised in the light of the fact that the respondent 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 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; 3. Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: 1. The length of the delay; 2. The reason for the delay; 3. The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and 4. The extent of any prejudice suffered by the respondent, 1. It may be appropriate to go further into the merits of an application 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. 1. The Appeal Panel has concluded those considerations are generally apposite in respect of extensions of time under s 41 of the NCAT Act in other contexts. I am similarly satisfied they are appropriate here. 2. As I have noted, no proper explanation for the delay has been forthcoming from the applicant, but the delay is comparatively short and the time limit for applications of this nature is particularly constrained. There is undoubted prejudice to the respondent if I extend time because he became entitled to possession on 29 March 2023 and that has been delayed by the appeal process, but potential prejudice to the applicant if I do not. I consider those factors relatively neutral, weighing slightly against an extension where the delay is unexplained. What will be determiniative is the apparent merit of the application. Given the lack of any proper explanation for the delay, and the significance of the prejudice to the respondent, it is appropriate that I delve further into the apparent merit of the application, rather than simply considering whether it is fairly arguable. 3. As noted above, reg 9 of the Regulations is in the following relevant terms: 9 Additional power to set aside or vary decision determining proceedings—the Act, s 90(2)(a) (1) In addition to a power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if— (a) all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, or (b) the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. Example— The Act, sections 45(3), 53(4), 63, 64(3) and 73(3) expressly confer powers to set aside or vary decisions of the Tribunal. … (5) A party may not make an application for an order under this section to set aside or vary a decision of the Tribunal if— (a) an internal appeal or appeal to a court against the decision has been lodged or determined, or (b) an application for a judicial review of the decision has been made or determined. … (8) Proceedings for this section are prescribed for the Act, section 50(1)(d). Note— A hearing is not required for proceedings that are prescribed for the Act, section 50(1)(d). (9) This section does not limit a power of the Tribunal to set aside, revoke or vary its interlocutory decisions or other decisions that do not operate to determine proceedings. 1. As can be seen, the Tribunal's power under reg 9 to set aside or vary a decision is contingent upon the decision being categorised as one which determines the proceedings and then only where the decision was made in the absence of a party or the order setting aside or varying the decision is by consent. 2. The applicant does not submit that the Substantive Decision did not determine the appeal proceedings, and his use of the application form suggests that he accepts that it does. To the extent the Substantive Decision dismissed the appeal, that was determinative. I note the use of that term is distinct from terms used elsewhere in the NCAT Act differentiating between orders that are interlocutory, ancillary, or otherwise: see for example NCAT Act, s 80(2). If the Substantive Decision did determine the appeal proceedings then the application is hopeless, because the applicant appeared before the Appeal Panel and the respondent opposes the application. 3. However, I note the comments of the High Court In the Matter of An Appeal by Luck (2003) 78 ALJR 177 at 178-179; [2003] HCA 70 that: "An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action." 1. A more nuanced approach may be required in respect of the Appeal Panel's refusal of leave to appeal, as the effect of that order is that challenges raised by the applicant that did not identify questions of law were not determined on their merits. Out of an abundance of caution, I will go on to determine the apparent merit of the application if the Substantive Decision in that regard could be said not to have determined aspects of the appeal proceedings. 2. The applicant mounts a wide-ranging challenge to the Substantive Decision in the nature of an attempt to reagitate the appeal on issues already put before the Appeal Panel or otherwise drafted in the nature of grounds of appeal. 3. Even where an order is interlocutory, does not otherwise determine the rights of the parties, or create a res judicata or issue estoppel, Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 laid down a principle, that has often been repeated, as to when such orders should be revisited. That decision is to the effect that whilst such orders may be revisited and varied, there is an ordinary but not invariable rule of practice, founded on the interests of justice, that such an application should be founded on a material change in circumstances or discovery of new material. 4. The only material claim of that nature, cited by the applicant as a "critical factor", is that "[i]n the interest of justice and in order to fact-find about the conspiracy and criminal aspects reported to the NSW Police [Point 9, Point 10 and statement provided to NSW Police of the written submissions of the Appellant dated 15 March 2023], [the] Appellant had to recently commence a proceeding in the Supreme Court of NSW against the Owners Corporation STRATA PLAN 93392 of which the Respondent 'Joe Cho' is an owner member of the STRATA scheme. The Supreme Court matter number is 2023/00137553 and title is 'Akhil Sethi v STRATA PLAN 93392'. It is likely that further defendants will get added to that matter including any other related matters arising from that matter." 5. The applicant has produced only a redacted copy of the initiating process of those proceedings in the Supreme Court in accordance with my directions, but I note the Court recently published a decision in that matter: Sethi v The Owners – Strata Plan No 93392 [2023] NSWSC 853. Some of the reasons of the Court, explaining why the summons was struck out and the proceedings stayed whilst the applicant repleaded, bear consideration. Campbell J noted that: "4. … As [the applicant] explained his case to me, and without seeking to categorise the legal rights he says have been infringed at this stage, he has formed the conviction that the owners corporation of the strata apartment block in which he resides has conspired with other, as yet unidentified or at least unknown parties, to commit various crimes of which he is the victim. 5. There is a wide-ranging group of offences which he points to, and his case is essentially that, because he has detected within his home, which is on the 19th floor of the apartment block, a disturbance of his possessions, there must have been a conspiracy to allow third parties into the apartment block for the purpose of doing him harm, even very great harm. 6. The logic upon which this conviction is founded is that, as is common enough, there are a number of layers of security protecting the residence of a person within an apartment block. There are external security doors which must be activated by a fob or electronic key of some kind, a lift operated on a similar basis, and of course a lock on the person's home. As I understood what Mr Sethi explained to me, those circumstances suggested that the persons who he believes have invaded his home could not have done so without some connivance on the part of persons responsible for the management of the owners corporation or the apartment block itself. 7. His conviction has been heightened, from his explanation to me from the bar table, by the circumstance that he has met with, in his own appreciation of the circumstances, obstruction when he sought to obtain access to CCTV footage to try and identify the persons who may have infringed the sanctity of his home. And that conviction has been further inflamed by the circumstance that, notwithstanding his reports of these events to police, as the building management suggested, no action seems to have been taken, such that he now suspects that the police may be in on what he regards as the conspiracy." 1. I would simply note that those concerns seem to be directly at odds with the applicant seeking to stay in the premises and inconsistent with the interests of justice requiring the Tribunal to allow him to do so. Further, to the extent the applicant seeks an order that he be granted a stay until "any other current or arising related matters are completely resolved and fully finalised", the Court's decision makes it clear that there could be no certainty as to how long that process will take. 2. There is nothing that is probative in the the material relied upon by the applicant in the nature of a material change in circumstances or discovery of new material. I do not think the application has sufficient apparent prospects of success to warrant an extension of time. Nor do I think that allowing the extension would result in the Tribunal being able to resolve the real issues in dispute between the parties in an manner which is just, quick and cheap given the applicants wide-ranging concerns. To the extent the applicant says the Appeal Panel made appellable errors in the hearing on the merits of the application for leave to appeal, those concerns should have been addressed by an appeal, not a set aside application. 3. I will refuse to extend time to lodge the application in respect of the set aside application of the Substantive Decision. The application to vary the decision in respect of the s 64 application should go to hearing 1. As noted in the example beneath reg 9(2)(b) of the Regulations, there is a specific power to vary orders under s 64 in respect of decisions about non-disclosure or non-publication. It is contained in s 64(3) of the NCAT Act, as follows: (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). 1. Whilst the applicant did not formally make a separate application to set aside or vary this decision, he correctly draws a distinction between the Appeal Panel's decisions in that regard. On that basis, I am satisfied that I should consider the application about the Appeal Panel's decision in respect of the order under s 64 separately. As applications under s 64 of the NCAT Act are not prescribed for the purposes of s 50 of the NCAT Act, and the parties have not had an opportunity to make submissions about whether a hearing in respect of that decision should be dispensed with, it is appropriate that the parties be afforded a hearing of that application. As I have their written submissions on the substantive issue, that hearing can be relatively brief and should be listed promptly. 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 Amendments 22 August 2023 - Paragraph 1 - added after a hearing 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: 22 August 2023