Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Teague v Commissioner for Fair Trading [2023] NSWCATOD 175 Hearing dates: On the papers Date of orders: 28 November 2023 Decision date: 28 November 2023 Jurisdiction: Occupational Division Before: J D Little, Senior Member Decision: 1. The Applicant is granted an extension of time to file the application for administrative review to 28 August 2023. 2. The Respondent's application for dismissal of the proceedings is dismissed. 3. The proceeding is set down for directions for the further conduct of the proceedings on 5 December 2023 at 11.30am. Catchwords: EXTENSION OF TIME - application to extend time to lodge application for administrative review - unrepresented litigant - extension opposed by Respondent. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2022 (NSW) Property and Stock Agents Act 2022 (NSW) Cases Cited: Bomanite Pty Ltd and Ors v Slatex Corporation (Australia) Pty Ltd and Ors (1991) 104 ALR 165 Cropper v Smith (1884) 26 Ch D 700 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Procedural rulings Parties: Jonathan Teague (Applicant) Commissioner for Fair Trading (Respondent) Representation: Self-represented (Applicant) Ms S Robosa (Respondent) File Number(s): 2023/00273281 Publication restriction: None REASONS FOR DECISION 1. The Applicant seeks review of a decision by the Respondent to refuse his certificate of registration as an assistant agent in real estate pursuant to the Property and Stock Agents Act 2022 (NSW) (the PSA Act) on the basis that the Applicant was not a fit and proper person. 2. In this regard, the internal review considered the Applicant's criminal history as described below. 3. The Applicant's administrative review was filed outside the 28-day limit and he seeks an extension of time of four months and 18 days. 4. Conversely, the Respondent opposes the extension and makes application to have the proceedings dismissed for want of jurisdiction. 5. On 26 September 2023, the parties indicated that they consented to the matter being determined on the papers. I am satisfied in the circumstances, that it is appropriate to deal with the Agent Application on the papers, as a hearing would amount to further unnecessary costs. I have made an order under s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Background 1. On 27 September 2019, the Applicant was charged with possessing a prohibited drug and destroying property. On 27 May 2020, he was fined $250 and subjected to a good behaviour bond by the Surry Hills Children's Court. 2. On 9 July 2020 he was charged with custody of a knife in a public place and possession of a prohibited drug. On 21 October 2020, he was fined $350 for the former and $250 for the latter by the Surry Hills Children's Court. 3. On 1 May 2021 he was charged with resisting or hindering a police officer in the execution of duty and two counts of common assault. On 3 November 2021, he received a s 10A conviction with no other penalty, fined a total of $900 and subjecting to a 12 months community corrections order concluding on 2 November 2022 by Manly Local Court. 4. On 3 June 2022, he was charged with assault occasioning actual bodily harm and common assault. 5. On 20 December 2022, the Applicant lodged an application for registration as an assistant agent in real estate pursuant to the PSA Act. In support of his application, he included two references and disclosed his criminal history. 6. On 22 February 2023, the Respondent's delegate refused the application in view of the convictions and the then, pending charges. 7. On 2 March 2023, the Applicant lodged an application for internal review. The internal review was dated 14 March 2023. At the time of the internal review, the charges relating to the incident of 3 June 2022 were still pending. 8. On 29 May 2023, the Applicant was refunded the application fee less the processing fee given the absence of an appeal related to the Respondent's decision. 9. On 1 August 2023, the charges relating to the incident of 3 June 2022 were dismissed with costs awarded to the Applicant against the Respondent. 10. On 28 August 2023, the Applicant lodged an application for administrative review in this Tribunal. However, any application for administrative review to this Tribunal ought to have been made within 28 days being by 11 April 2023. 11. As noted above, the Applicant seeks an extension of time of four months and 18 days. Conversely, the Respondent opposes the extension and makes application to have the proceedings dismissed for want of jurisdiction. Legislation and principles 1. The NCAT Act provides a wide discretion to extend time, even if the time period has expired. The power is found in s 41 of the NCAT Act. Section 41 provides: (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. The discretion to grant an extension of time is unfettered but must be exercised judicially: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18] (Jackson). 2. Relevant considerations, set out in Jackson at [22], are: 1. Is there proof that strict compliance with the rules will work an injustice on the applicant? 2. In the context of a pending appeal, the expiration of the period for appeal gives a vested right to retain the decision in question with the consequences that the time for appealing should not be extended unless the proposed appeal has prospects of success. 3. It will usually be necessary to consider: 1. the length of the delay, 2. the reason(s) for the delay, 3. the applicant's prospects of success, ie whether there is a fairly arguable case, 4. the extent of any prejudice suffered by the opponent(s). 1. If the explanation for the delay is less than satisfactory and/or if the opponent as a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that it is fairly arguable. 1. Rule 8 of the Civil and Administrative Tribunal Regulation 2022 provides that an application for an extension of time made under section 41 of the Act must be made in writing unless the Tribunal dispenses with that requirement. In this case, the Applicant has complied with Rule 8. Submissions 1. The Applicant submits as follows: I am requesting an extension of time outside the specified 28 day period due to new evidence that has been made available after that period ended which should have a material effect on the determination for issuing me with a real estate licence. In relation to the incident on the 3 June 2022 all charges have been dismissed with costs awarded to me against the police. This decision was made on 1 August 2023 which is outside the 28 days period and thus explains why there is a delay in appealing the determination. I've worked diligently to improve my behaviour since the incident in Manly on 1 May 2021, 2 years and 5 months ago. I kindly request a review of my determination considering the new evidence, with the hope of obtaining a real estate license. I'm eager to restart my career in real estate and positively contribute to society. 1. In making this submission, the Applicant appeared to have been operating under the mistaken belief that he was required to await the finalisation of the criminal proceedings related to an incident which occurred on 3 June 2022 given the emphasis placed on his criminal history in the internal review. 2. In support of his application for an extension of time, the Applicant relies upon: 1. Written submissions dated 24 October 2023; 2. Letter from Phoenix Legal Consulting dated 2 October 2023 confirming that all charged had been dropped and costs awarded against the police; 3. A copy of a Criminal History Check Certificate dated 12 October 2023 1. Conversely, the Respondent opposes the application and seeks dismissal of the proceedings. In summary, the Respondent submits as follows: 1. The delay is considerable in that it is 139 days outside the 28 day period in circumstances where the 28- day period was clearly indicated in the decision however the Applicant opted not to apply for an external review and accepted the refund of his application fees which were only refunded because of the absence of an application. 2. The Applicant's explanation for the late lodgement is not reasonable because the pending hearing of the charges did not prevent the lodgement of an application in this Tribunal. 3. There is a public interest in promoting compliance with the 28-day period as it promotes the orderly and efficient conduct of proceedings. 4. There is prejudice to the Respondent who have had no opportunity to assess and consider the new evidence which is the decision to dismiss the charges and would incur legal costs. 5. Lastly, the Respondent contends that the Applicant has poor prospects of success given his criminal history and because of the conduct relating to the incident of 3 June 2022 irrespective of the outcome of the criminal proceedings. Consideration 1. In considering the evidence and the submissions before me, I find as follows. 2. The length of delay (four months and 18 days) is not insignificant but in the context of the injustice on the Applicant in removing his opportunity to have the decision reviewed by this Tribunal if an extension is not granted, it is not of a quantum that will make such an extension unreasonable if the other circumstances satisfy me that it is in the interests of justice. 3. The Applicant has provided a reason for the delay in that his evidence supports that he was operating under the mistaken belief that he was required to await the finalisation of the criminal proceedings related to an incident which occurred on 3 June 2022. Such a belief being in part attributed to the emphasis placed on his criminal history in the internal review. This was an error, but I note that the Applicant is self-represented and self-evidently unfamiliar with the processes and procedure of this Tribunal. 4. While I accept that there is a public interest in promoting compliance with the 28-day period as it promotes the orderly and efficient conduct of proceedings, this interest must be balanced with a litigant's right to be heard and ensuring justice is served by not adopting a too rigid approach when it comes to process and procedure especially in a jurisdiction that often has self-represented litigants. 5. In the Full Court of the Federal Court of Australia in Bomanite Pty Ltd and Ors v Slatex Corporation (Australia) Pty Ltd and Ors (1991) 104 ALR 165, French J at 177 referred to what was said by Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 710: The substantive goal of this court is to do justice between parties according to law. That objective is not to be compromised by undue rigidity in the application of the procedural requirements which are its handmaidens. Bowen LJ said in Cropper v Smith (1884) 26 Ch D 700 at 710 : … it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. 1. Consistent with the observations of French J, while the perception and social circumstances in which the observations of Bowen LJ were made have changed, this Tribunal recognises, as did Lord Justice Bowen in 1884, that the procedural requirements attending reparation and conduct of litigation must be sufficiently flexible to make reasonable allowance for human error. 2. With respect to the prospects of success, it is always difficult to assess without a full hearing on the merits an applicant's prospects of success in the substantive case, particularly where evidence is yet to be filed. However, the Tribunal has the benefit of the submissions made by the Applicant to the Respondent in the context of the internal review which are summarised in the internal review. The internal review records the Applicant's submissions as follows: On 2 March 2023, Mr Teague requested an internal review of the refusal decision and submitted: o he is aware the application was refused based on information supplied in the National Police Check o the conviction on 21 October 2020 related to incidents when he was under 18 years old and, while it shows as a conviction on the police report, he was not convicted under section 14 of the Act but was fined $550 (total) o the conviction on 3 November 2021 related to his getting drunk In a licensed premises and refusing to leave, resulting in a fine and a community correction order which he has completed o he has pleaded not guilty to the pending charge and will be strenuously defending the matter, which has been adjourned by the police until later this year o he recognises his behaviour has not been exemplary and that it may look like he is developing a pattern of bad behaviour o he admits to having some social issues, particularly with alcohol, however has voluntarily undergone counselling and rehabilitation to address these issues o the consequences of his actions have been understood and lived and he takes full responsibility for his poor judgment in friends and decision making o his misdemeanours, particularly when he was younger and poorly navigating his way through life, should not be a pre-cursor to his future and the person he is working hard to be o he has a supportive group of friends and family and is very fortunate to have their guidance o he sought a career in real estate as he is a goal-oriented person who is good with people and enjoys the pace o he is good at his job, has built respect with his colleagues and managers and has received positive feedback from customers o his approach to the job is with the highest level of respect, professionalism and conduct o he has taken the necessary steps to resolve his personal issues, work on being a better person and demonstrate his commitment to real estate by upholding the highest standards of conduct o a letter from his supervisor at his place of employment (Upstate Group Pty Ltd), dated 1 March 2023. 1. Assuming the Applicant can provide evidence supporting these allegations, then the Applicant does have a fairly arguable case. 2. With respect to the alleged prejudice to the Respondent as identified by the Respondent, that prejudice is said to be the lack of opportunity to consider the new evidence which is the decision to dismiss the charges and would incur legal costs. I reject this as a basis to find prejudice: 1. First, it is not clear why the Respondent, who is the Commissioner of Police, would not have knowledge of the criminal proceedings but in any case, the evidence has not yet been filed and served in these proceedings and the Respondent will have the opportunity to consider it in due course. That alleviates any prejudice in that regard. 2. Secondly, while the need to pay legal fees in some circumstances may support an allegation of prejudice in the circumstances before me, I am not satisfied that such prejudice arises. Currently, the Respondent is represented by a solicitor employed by the NSW Government in the Customer Service division. Even if that solicitor's engagement in these proceedings is rightfully characterised as incurring costs on behalf of the Respondent, in all the circumstances the injustice on the Applicant in removing his opportunity to have the decision reviewed by this Tribunal if an extension is not granted outweighs this prejudice. 1. In all the circumstances, the correct and preferable decision is to exercise my discretion to grant an extension of time. I grant the extension of time to 28 August 2023 being the date the Applicant's application to this Tribunal was filed. 2. I so find. Orders 1. I make the following orders: 1. The Applicant is granted an extension of time to file the application for administrative review to 28 August 2023. 2. The Respondent's application for dismissal of the proceedings is dismissed. 3. The proceeding is set down for directions for the further conduct of the proceedings on 5 December 2023 at 11.30am. ********** 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 November 2023