Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kelly v A and A Worm Farm Waste Systems Pty Ltd [2024] NSWCATAP 237 Hearing dates: 6 November 2024 Date of orders: 22 November 2024 Decision date: 22 November 2024 Jurisdiction: Appeal Panel Before: D Ziegler, Senior Member J Connelly, Senior Member Decision: (1) The application for an extension of time in which to file the appeal is refused. (2) The appeal is dismissed. Catchwords: APPEAL – application for extension of time in which to file the appeal – significant delay – no satisfactory explanation for the delay – whether Tribunal has power to make conditional order involving a third party – appeal lacking in merit – application for extension of time refused. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Asia Pacific Glass Pty Ltd v Sindea Trading K Pty Ltd (No 2) (2003) 47 ASCR 737; [2003] NSWSC 845 El Ali v Antoniou [2019] NSWCATAP 88 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Texts Cited: Macquarie Dictionary (Pan Macmillan Australia, 2024) Oxford Dictionary of English Grammar (2 ed) (Oxford University Press, 2022) Category: Principal judgment Parties: Gordon Kelly (Appellant) A and A Worm Farm Waste Systems Pty Ltd (Respondent) Representation: Counsel: A Crossland (Appellant) Solicitors: Jameson Law (Appellant) A Duke (Director) (Respondent) File Number(s): 2024/00242998 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 29 May 2023 Before: L. Wilson, Senior Member File Number(s): 2023/00412387 (formerly HB 23/06667) REASONS FOR DECISION Introduction 1. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal involving consent orders made by the Tribunal on 29 May 2023. 2. The dispute involves works carried out by the respondent in March 2021 to install a waste treatment system at Mr Kelly's property, which is located in a rural area of New South Wales (the works). The agreed contract price for the works was $14740. Prior to commencement of the works, Mr Kelly (the appellant) paid a deposit of $7,370. 3. On 11 February 2023 the appellant commenced proceedings in the Tribunal in which he sought compensation, alleging that the works were defective. One of the complaints made by the appellant was that the works were not in accordance with the development consent (the DA) which had been granted by Bega Valley Shire Council (the Council), because they had been installed in a different location to that contemplated by the DA. The respondent agrees that the works were installed at a different location, but says that this was done on the advice of a representative of the Council given to the respondent at the time of installation, and that the appellant consented to the relocation of the works at that time. 4. On 23 May 2023 the matter came before the Tribunal for a final hearing. At the conclusion of the hearing the Tribunal made the following consent orders: 1. By consent, [the applicant] is to pay [the respondent] the sum of $6,820.00 after the work described in Work Order 2 below is complied with. … Reasons: • $6,820.00 once the work order is complied with the applicant to pay the respondent remaining contract sum. 2. By consent, the Tribunal orders that the respondent … is to cause the undertaking of the following work in a proper and workmanlike manner on or before 28-Jul-2023 on the proviso that Bega Valley Shire Council issue a waste water permit which enables the relocation of the system as proposed in the below order (the parties agree that they will pay half of the cost of the permit each): 1. There followed a detailed description of the scope of works which involved relocating the works to a different location on the appellant's property. At the end of the notice of order the Tribunal made the following notation: NOTE: The applicant agrees to communicate with council to obtain the required permit to enable the work order to be carried out. The parties agree to pay half of the permit fee each. If the applicant does not apply for the permit or pay half the permit fee then the work order cannot progress. 1. The sole ground of appeal is that the Tribunal did not have the power to make order 2 because, on the appellant's submission, the Tribunal does not have power to make a conditional order where the condition involves action being taken by a third person – that is, a person (in this instance the Council) - who is not a party to the proceedings. 2. The appeal has been brought significantly out of time and therefore the appellant requires an extension of time for the filing of the appeal. For the following reasons we have decided to refuse the application for an extension of time and to dismiss the appeal. Should the Appeal Panel extend time for filing the appeal? 1. The Notice of Appeal was lodged on 1 July 2024 which is more than twelve months outside of the 28-day period specified in r 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules). 2. Section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) empowers the Tribunal to extend time for the lodgement of the appeal. 3. The principles applicable to an extension of time are well established and are set out in the Appeal Panel decision of Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) as follows: 1. Under s 41, the Appeal Panel has power to grant an extension of time in which to file an appeal. 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 NCAT Act that the guiding principle for the NCAT Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings": see [18]. 2. The discretion can only be exercised in favour of an appellant upon proof that strict compliance with the rules will work an injustice upon the appellant: see [22(1)]. 3. 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, 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: see [22(2)]. 4. Generally, in an application for an extension of time to appeal, the Appeal Panel will be required to consider (at [22(3)]): 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 (to the appeal). 1. 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, namely, it may be relevant whether the appellant has a case that has more substantial merit than being fairly arguable: see [22(4)]. Length of delay 1. This appeal was filed more than twelve months out of time (and more than eleven months after the due date for compliance with the orders). This is a significant delay which militates strongly against the grant of an extension of time. The reasons for the delay 1. The appellant has provided evidence of his interactions with Bega Valley Shire Council (the Council) and with his lawyers, which he says provide an adequate explanation for the delay. 2. The relevant timeline is as follows: 1. The Tribunal orders were made on 29 May 2023. 2. On 27 June 2023 the appellant emailed the Council "seeking advice about the unauthorised change of DA202:443". That email refers to previous correspondence from the appellant to the Council on 31 May and 15 June 2023, although copies of that earlier correspondence were not provided to the Appeal Panel. The email states "to date, no acknowledgment, advise [sic] or response has been received". 3. On 7 July 2023 a representative of Council sent an email to the appellant relevantly stating: To answer your question, confirming that Council will require a new Section 68 application to move your OSM to your proposed location, that being the location originally shown on the approved DA plans. Adding some complexity to this situation, I have only recently become aware that there are creek buffer zones impacting this proposed location that my team did not realise were present at the time of original approval. These buffer zones will constrain the site considerably … these buffer zones will likely make it unfeasible to be able to approve in the proposed location. 1. On 19 September 2023, following further correspondence from the appellant, the same Council representative wrote to the appellant stating "as per my email of 7 July 2023 … you will need a new Section 68 application to move your disposal area from where it is currently situated… I would recommend leaving the disposal area where it currently is, being from my staff's assessment, the most appropriate place for effluent disposal due to the site constraints … I flag that the original location was found to have unforeseen constraints, necessitating the move in the first place, and that the further information that we have now about buffer zones would make approval in the original position untenable." 2. On 6 October 2023 (ie more than two weeks later), the appellant wrote to the Council expressing concerns about the "unapproved change" of the DA and seeking copies of Council's records regarding the matter. 3. He did not receive a response. 4. The appellant says that "sometime around October 2023" he decided to seek legal advice. He also says that he did not meet with his solicitors and legal counsel until December 2023, and that he received a letter of advice from his legal counsel on 10 April 2024. 5. After receiving that advice, the appellant instructed his solicitors to write to the Tribunal to inquire about reopening the proceedings. His solicitors did so on 7 May 2024. On 8 May 2024 the Tribunal's registry informed the appellant's solicitors that the proceedings could not be reopened but that an appeal could be filed. 6. The notice of appeal was filed on 1 July 2024. 1. The appellant says that this timeline of events demonstrates that he was not "sitting on his hands" and that "every step of the way he was trying to deal with the situation". 2. We do not agree. Firstly, the appellant has provided no evidence of having taken the necessary steps to have the condition in order 2 fulfilled (that is, obtaining Council approval to the relocation of the works). That is, there is nothing before us which establishes that the appellant ever lodged a formal application with the Council for such approval, or of Council having refused such an application. The correspondence from Council relied on by the appellant confirms that a "s 68" approval would be required to relocate the works. Although that correspondence refers to anticipated problems with relocating the works, there is nothing before us to suggest that a formal application for approval was ever lodged by the appellant, or formally refused by the Council. 3. In this regard the appellant says, somewhat confusingly, that in his opinion no approval is in fact required for relocation of the works. However, he has provided no evidence to support this position, which is inconsistent with the advice he received from Council on multiple occasions. 4. In any event, regardless of whether the appellant took appropriate steps to seek approval from Council, the timeline relied upon by the appellant does not support his position that there is an adequate explanation for the delay in filing the appeal. In particular, the appellant has not explained why: 1. despite being made aware of the Council's position as early as July 2023, he did not take steps to obtain legal advice until approximately three months later; 2. despite deciding to obtain legal advice in October 2023, he did not meet with his legal team until some two months later, and did not receive counsel's written advice for a further four-month period; 3. neither he nor his lawyers approached the Tribunal about reopening the proceedings until approximately one month after the appellant had received written legal advice (and five months after the appellant's meeting with his legal team); or 4. despite being informed by the Tribunal registry on 8 May 2024 that the proceedings could not be reopened, the notice of appeal was not filed until almost two months later on 1 July 2024. 1. In the circumstances, the explanation for the delay in filing the appeal is entirely unsatisfactory. Extent of prejudice 1. The respondent made no submissions in relation to this issue at the hearing of the appeal. At a call-over hearing before the Appeal Panel, the respondent's representative indicated that he would not be opposing an extension of time. 2. The appellant submitted that there could be no prejudice to the respondent if time for filing the appeal is extended because the respondent agrees that the orders of the Tribunal are unsatisfactory. The appellant referred to the statement in the respondent's reply to appeal that the "results were inconclusive for both parties" and to the fact that the respondent recently commenced separate proceedings (which were ultimately dismissed) in which it sought to recover the unpaid portion of its invoice. 3. This may well be the case. However, at the hearing of the appeal the respondent's representative did not support the appeal, and indicated to the Appeal Panel that in his view the orders of the Tribunal should stand. 4. Thus, an extension of time would involve an inherent prejudice to the respondent in the sense that once the period for the appeal has expired, the respondent can be thought of as having a "vested right" to retain the benefit of the Tribunal's orders: Jackson at [22(2)]. Otherwise, we are not aware of any potential prejudice to the respondent if time is extended and therefore this factor is not a significant consideration in deciding whether to extend time. Prospects of success 1. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2). 2. In this matter the sole ground of appeal is that the Tribunal did not have the power to make order 2 because the Tribunal does not have power to make an order conditional on the actions of third parties. 3. Applying the principles set out in detail in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204, we are satisfied that this ground of appeal involves an error on a question of law for which leave to appeal is not required. 4. It is not disputed that pursuant to s 58 of the NCAT Act, the Tribunal has the power to make an order or other decision subject to such conditions (including exemptions) as the Tribunal specifies. 5. The appellant submits s 58 should be construed as "directed towards conditions that might be fulfilled by one or both of the parties". He says the provision should be construed as not permitting orders that are conditional on the actions of third parties who are strangers to the proceedings because: 1. An order of the Tribunal does not, and cannot, bind the non-party person (here the Council) to do the conditional act. 2. In the absence of certainty (or at least evidence) that the non-party can, or is willing to do, the act, it potentially leaves the parties' dispute unresolved. 3. In the event the non-party does not do the conditional act (through neglect, refusal or incapacity), the parties have no mechanism for obtaining satisfaction in relation to the orders (and that is true in this case for both parties). 1. The appellant has not referred us to any authorities which support his position. 2. The contemporary approach to statutory construction requires both the text and the context, and purpose of the relevant statutory provision, to be considered. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 at [14], the High Court said (footnotes omitted): The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. 1. Section 58 states: A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision. 1. The provision is couched in broad terms and its meaning is clear. The Tribunal's order-making power includes the power to make the order or other decision "subject to such conditions (including exemptions) as the Tribunal specifies". The term "condition" is not defined in the NCAT Act, and the ordinary meaning of that word is not confined in the manner suggested by the appellant. Relevant dictionary definitions include: "a circumstance, situation, action, etc. upon the fulfilment of which another circumstance, situation, action, etc. obtains": Oxford Dictionary of English Grammar (2 ed) (Oxford University Press, 2022) and, (per Macquarie Dictionary (Pan Macmillan Australia, 2024)): 7. a restricting, limiting, or modifying circumstance. 8. a circumstance indispensable to some result; a prerequisite; that on which something else is contingent. 9. something demanded as an essential part of an agreement. 1. Section 58 contains no express limitation on the nature of conditions which the Tribunal may impose, and the appellant has pointed to nothing in the context or purpose of the NCAT Act which would support his preferred construction. We turn now to address each of the appellant's submissions. 2. The appellant's first submission is that a Tribunal order does not and cannot bind a third party. Whilst this statement is correct, it is of no assistance to the appellant's position because a condition imposed in making an order is not enforceable and is not, of itself, a source of an obligation: El Ali v Antoniou [2019] NSWCATAP 88 at [26]. We note that that decision of the Appeal Panel cites the NSW Supreme Court decision of Asia Pacific Glass v Sindea Trading Co (No 2) [2003] NSWSC 845 (Asia Pacific) in which Barrett J said at [13]: "the concept underlying a conditional order is that the court, by the condition, specifies what the successful party must do in order to have the benefit of the order; and it is then for that party to decide whether he or she will take the specified steps and secure that benefit or not take them and thereby forego it". It might be argued that Barrett J was suggesting that a condition attached to an order necessarily involves a party to the proceedings. However, those comments were obiter dicta and related to specific, differently worded, provisions of the Corporations Act 2001 (Cth). Moreover, they were made in the context of discussing a conditional order which did not involve a third party. They do not address whether a condition can involve a non-party. The obiter dictum in Asia Pacific therefore does not assist in construing s 58. 3. The appellant's second submission - that a conditional order involving a third party leaves the Tribunal without certainty that the non-party can or will do the act, and potentially leaves the parties' dispute unresolved - is of no moment. The very nature of a conditional order is that the condition may or may not be fulfilled and if it is not fulfilled then the obligation to perform the relevant order is not triggered. 4. Whilst conditions attached to orders will most commonly involve actions to be taken by a party to the proceedings, there will be situations where it will be appropriate or indeed necessary for the Tribunal to make a conditional order involving a third party. This is so even though the Tribunal cannot be certain that the condition can or will be satisfied. A simple example is a dispute involving defective goods where the Tribunal orders the supplier to issue a refund, conditional upon the defective goods being returned to the supplier. Frequently, a third party (such as Australia Post) will by necessity be involved in fulfilment of such a condition. If the goods are not successfully delivered by that third party, then the obligation to comply with the money order is not triggered. Another example is, (as was the case in this appeal), where the Tribunal makes an order for a party to perform agreed building works, but the works in question require approval from a governmental authority. If the requisite approval is not forthcoming, then, quite appropriately, the works cannot be done and the work order will not be triggered. It may also be appropriate in a dispute involving a strata scheme for the Tribunal to make an order which is conditional upon the owners corporation passing a motion at a general meeting. It is axiomatic that the Tribunal cannot know whether the requisite motion will be passed in advance of the meeting. 5. The appellant's third submission is that, in the event the condition is not fulfilled, the parties "have no mechanism for obtaining satisfaction in relation to the orders". However, this does not take the matter further. This issue could equally arise where a conditional order does not involve a third party, particularly where there are multiple interacting conditions within a set of orders. It is a reason for the Tribunal to be cautious when deciding to make a conditional order, but it cannot be extrapolated from this that section 58 does not empower the Tribunal to make conditional orders involving third parties in any circumstances. 6. There will be times when a conditional order involving a third party is susceptible to criticism, for example because the condition is couched in unclear language rendering the relevant order incapable of enforcement. As mentioned, the Tribunal should take care when crafting conditional orders. However, it does not follow that a conditional order made under s 58 can never involve actions by third parties. 7. For these reasons we are not satisfied that the appeal has merit. Conclusion in relation to the extension of time application 1. As the Appeal Panel stated in Jackson at [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. 1. Relevant to this is that the Tribunal's guiding principle under s 36(1) of the NCAT Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Appeal Panel must seek to give effect to the guiding principle when it exercises any power under the NCAT Act or the procedural rules, including its power to extend time under s 41: s 36(2). Parties and their representatives are also under a duty to co-operate with the Tribunal to give effect to the guiding principle: s 36(3). 2. Within this context, and in light of the significant delay in filing the appeal, the inadequacy of the appellant's explanation for the delay, and the appeal's lack of merit, we are of the view that it would not be appropriate to extend time for filing the appeal. Orders 1. The orders we are making are as follows: 1. The application for an extension of time in which to file the appeal is refused. 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: 22 November 2024