Bersich v Quinlan Bulk Pty Ltd [2014] NSWCATAP 51

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bersich v Quinlan Bulk Pty Ltd [2014] NSWCATAP 51 Hearing dates: 10 September 2014 Decision date: 17 September 2014 Jurisdiction: Appeal Panel Before: Wright J, President A P Coleman SC, Senior Member G Meadows, Senior Member Decision: The application for leave to extend time in which to file the Notice of Appeal is refused. The Appeal is dismissed. Catchwords: APPEAL - Civil and Administrative Tribunal (NSW) - application for extension of time to file notice of appeal - Civil and Administrative Tribunal Act 2013 (NSW), s 41 - inadequate explanation for significant delay - low prospects of success -prejudice to the respondent if leave granted - application refused. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: Michael John Bersich (Appellant)Quinlan Bulk Pty Ltd T/AS Quinlan Repairs (Respondent) File Number(s): AP 14/0261 Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-02-04 00:00:00 Before: S F Smith, General Member File Number(s): MV 13/53125

reasons for decision

Background 1This is an application pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (the Act) to extend time for the lodging of a Notice of Appeal from a decision of the Consumer and Commercial Division of the Tribunal. 2The original decision of the Tribunal was delivered on 4 February 2014. The application concerned a claim for payment of money arising from damage by fire to a vehicle owned by Mr Bersich, the appellant, which he alleged was left in the care and custody of the respondent, Quinlan Bulk Pty Ltd T/AS Quinlan Repairs, as bailee. At that time, the application was dismissed. 3By reason of cl 25 of the Civil and Administrative Tribunal Rules 2014 an internal appeal from a decision of the Tribunal must be lodged 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). 4On the notice of appeal in this matter, the appellant has indicated that he received notice of the decision on 7 February 2014. The notice of appeal was lodged on 23 June 2014. It is therefore some 4 and a half months out of time. 5Whist the notice of appeal is not entirely clear, the hearing proceeded on the basis that the appellant was seeking leave to appeal from the original decision. As the original decision was one of the Consumer and Commercial Division, unless the appeal is on a question of law, the ability to grant leave to appeal is subject to the Appeal Panel's being satisfied that the appellant might have suffered a substantial miscarriage of justice on one or more of 3 specified grounds: see cl 12 of Sch 4 to the Act. 6The notice of appeal in this matter was not, however, the first time that the appellant had sought to challenge the decision of the Tribunal. On 24 February 2014, the appellant lodged an application for rehearing pursuant to s 68 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the CTTT Act). Neither party contended that such a course was not open and, in the light of cl 7(3) of Sch 1 to the Act, the Appeal Panel was content to proceed on the basis that an application could be made under s 68 in a case such as the present which involved "unheard proceedings" within the meaning of clause 7. 7On 19 March 2014, the application for a rehearing was refused by Member Gray, as delegate of the Deputy President. We will refer in more detail to this application, and the consequences of its refusal, below. 8On the notice of appeal in this matter, the appellant has indicated that the date of the decision appealed from was "21 March 2014". It is apparent that this is the date of the letter notifying the parties of the decision refusing the application for a rehearing. As we have noted above, the relevant date for the purposes of this application for an extension of time in which to appeal from the original decision made on 4 February 2014, was 7 February 2014, being the date on which the appellant was notified of the original decision of the Tribunal.