Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rodrigo v Zhang [2014] NSWCATAP 92 Hearing dates: On the papers Decision date: 25 November 2014 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member S Higgins, Principal Member Decision: 1. The Appellants' Notice of Appeal has been lodged within time. 2. Time is extended for the Respondent to file and serve her Reply. 3. On or before 10 December 2014, the Appellants to file and serve any further written submissions and other material on which they rely. 4. On or before 17 December 2014, the Respondent to file and serve any further written submissions and other material on which she relies. 5. Parties granted leave to make an application for a copy of the audio recording of the hearing before the Tribunal below. Any such application is to be made on or before 3 December 2014. 6. In the event either party seeks to rely on the audio recording of the hearing below, a copy of that recording is to be filed and served as part of the party's material in accordance with orders 3 and 4, together with a written transcript of those parts of the recording relied upon or written submissions identifying those parts of the recording relied upon. 7. The Appellants' application for leave to appeal and their appeal in the event leave is granted is listed for hearing 14 January 2015 at 10:15 AM. Catchwords: APPEAL - Civil and Administrative Tribunal (NSW) - whether Notice of Appeal lodged within time Legislation Cited: Civil and Administrative Tribunal Act 2013 Category: Interlocutory applications Parties: Shane Rodrigo (Appellant) Zooey Zang (Respondent) Representation: D Shirley as Agent for the Respondent File Number(s): AP 14/46309 Decision under appeal Date of Decision: 2014-02-21 00:00:00 Before: D Charles, Tribunal Member File Number(s): RT 13/48074 RT 13/58731 Reasons for Decision 1The appellants seek to appeal a decision of the Tribunal in the Consumer and Commercial Division, made on Friday, 21 February 2014, relating to a residential tenancy agreement they entered with the respondent landlord, pursuant to the Residential Tenancy Act 2010 (RT Act). It was a 12 month agreement, dated 16 May 2013 and related to a unit owned by the respondent at Wentworth Point. The rent payable was $530.00 per week. 2The appellants vacated the premises early, on 29 August 2013, after having served a termination notice, under section 98 of the RT Act. 3On 12 September 2013, the appellants' commenced proceedings in the Consumer and Commercial Division seeking an order, under subsection 175(1) of the RT Act, for the repayment of their rental bond (file no RT 13/48074) (the appellants' claim). 4 On 13 November 2013, the respondent counterclaimed seeking an order for compensation in the sum of $4,989.71, under subsection 187(1)(d) and (e) of the RT Act (file no RT 13/58731) (the respondent's claim). 5The applications were heard together on 21 February 2014. The Tribunal determined each application and prepared written reasons for decision. The written determination and reasons for decision are dated the same day. 6In regard to the appellants' claim (RT 13/48074), the Tribunal ordered: 'The application is dismissed because having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established.' 7In regard to the respondent's claim (RT 13/58731), the Tribunal ordered: The tenant, VALERIA RODRIGO and SHANE RODRIGO, [address], is to pay the landlord, ZOOEY ZHANG, C/- [address], the sum of $2,594.71 on or before 21-March-2014. Reasons: RENT ARREARS $834.71 BREAK FEE $3,180.00 DAMAGES & REPAIRS $700.00 Less $2,120.00 from bond 8On 13 March 2014, the appellants lodged their Notice of Appeal with the Appeal Panel. In that Notice of Appeal, the appellants identified the decision in RT 13/58731 as the decision the subject of their appeal (i.e. the decision in regard to the respondent's claim). The appellants also sought a stay of the orders made by the Tribunal. 9On 24 March 2014, the Appeal Panel, constituted by Principal Member M Harrowell determined, on the papers, to refuse the appellant's application for a stay of the Tribunal's orders and made the following directions: 2. The appellant is to file and serve submissions and evidence to be relied upon (including the question of whether leave should be granted and whether the proceedings should be determined on the papers) on or before 7 April 2014. 3. The respondent is to file and serve submissions and documents (including the question of whether leave should be granted and whether the proceedings should be determined on the papers) on or before 7 April 2014. 4. On or before 11 April 2014 the appellant is to file and serve submissions in reply. 10On 31 March 2014, the appellants filed short written submissions and a letter from their doctor. 11On 15 April 2014, the respondent filed and served her Reply to the appellants' appeal. In her Reply the respondent said she supported the orders made by the Tribunal. The respondent said she did not accept that the appellants' appeal was lodged within time and noted that no reason was given for the late lodgement of the appeal. The respondent also opposed leave being granted to the appellants to appeal the decision of the Tribunal. 12On 15 April 2014, the appellants sent an email to the Principal Registry of the Tribunal in which they said the respondent's submission 'should be inadmissable' as they had been lodged after 7 April 2014, as directed by the Appeal Panel. 13On 24 April 2014, the Principal Registry wrote to the appellants enclosing a copy of the respondent's Reply to Appeal and requested that they file and serve any written reply they wished to make on or before 8 May 2014. 14The appellants did not file any further material. However, on 7 July 2014, the Principal Registry wrote to the parties and informed them that the matter had been 'referred to the Appeal Panel to decide whether the matter is to be determined on the papers (including tissue that the appeal lodged out of time) and, if so, to determine the application.' 15In light of the preliminary issue raised by the respondent in regard to the appellants' Notice of Appeal having been lodged out of time, the Appeal Panel has determined this issue on the papers, pursuant to subsection 50(2) of the Civil and Administrative Tribunal Act 2013. For the reason set out below, we have found that the appellants' Notice of Appeal has been lodged within time and we have also extended the time within which the respondent is to file and serve her reply. Internal Appeals 16There is no dispute that the appellants' appeal falls within the internal appeal jurisdiction of the Tribunal: see section 32 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). 17Section 80 of the NCAT Act makes provision for some internal appeals to be as of right and others with the leave of the Appeal Panel. That section relevantly provides: 80 Making of internal appeals (1) ... . (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance-with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance-as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) ... 18Clause 12 of Schedule 4 of the NCAT Act prescribes the following limitations on internal appeals against decisions of the Consumer and Commercial Division. That clause relevantly provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). (2) ... . 19Clause 25 of the Civil and Administrative Tribunal Rules 2013 (NCAT Rules) prescribes certain procedural rules for lodging an external and internal appeal. That clause relevantly provides as follows: 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) ... (4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged: (a) ..., 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) ... 20As the appellants' appeal is an internal appeal against a decision made in 'residential proceedings' (see clause 3(1) of the NCAT Rules), the 14 day period prescribed in clause 25(4)(b) applies. 21Clause 6 of the NCAT Rules makes provision as to how time is to be reckoned. That clause is in the following terms: 6 Reckoning of time (1) Any period of time fixed by these rules, or by any order or other decision of the Tribunal or a registrar or by any document in any proceedings, is to be reckoned in accordance with this rule. (2) If a time of one day or longer is to be reckoned by reference to a given day or event, the given day or the day of the given event is not to be counted. (3) If, apart from this rule, the period in question, being a period of 5 days or less, would include a day or part of a day on which the Registry is closed, that day is to be excluded. (4) If the last day for doing a thing is, or a thing is to be done on, a day on which the Registry is closed, the thing may be done on the next day on which the Registry is open. (5) Section 36 of the Interpretation Act 1987 (which relates to the reckoning of time) does not apply to these rules. 22Section 41 of the NCAT Act gives the Tribunal (including the Appeal Panel) power to extend time. That section is in the following terms: 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. Did the appellants lodge their Notice of Appeal within time? 23In their Notice of Appeal, the appellants state they were notified of the Tribunal's decision on 27 February 2014 and did not indicate whether they did or did not require an extension of time within which to lodge their Notice of Appeal. 24The respondent asserts that the appellants' appeal 'was lodged more than double outside the requested time frame.' However, the respondent does not make any submissions as to when she contends time began to run for the purpose of lodging an appeal. 25The Consumer and Commercial Division files record both applications (RT 13/48074 and RT 13/58731) as having been listed for hearing at 9:15am on the morning of 21 February 2014. The files also record the Tribunal having made its determination at 4:50pm that afternoon. Copies of a written notice, addressed to the appellants and the respondent, informing them of the Tribunal's decision in regard to each claim together with written reasons for decision are also contained in each file. Each notice is dated 21 February 2014 and appears to have been sent by post. 26The Tribunal's written reasons for decision do not state the notice of decision or reasons for decision given on an extempore basis, or that notice of the decision or reasons for decision were in fact given to the parties on that day. While the Tribunal Member did note that the applications were heard at a 'formal hearing' where both parties were present that fact does not provide a basis to infer the decision was notified or reasons were given at that time. 27We note section 61 of the NCAT Act provides that a decision of the Tribunal 'takes effect on the date on which it is given or such later date as may be specified in the decision.' Subsection 62(1) of the NCAT Act provides that the Tribunal is to ensure that each party to proceedings (including appeals) is given 'notice' of any decision that it makes in regard to the proceedings. However, as we have noted above, for the purpose of reckoning time for lodging an internal appeal to the Appeal Panel, time does not commence to run until the appellant is notified of the decision the subject of appeal, or given reasons for the decision. 28As noted above, the appellants say they were notified of the decision on Thursday, 27 February 2014. The respondent has not contradicted this statement. 29Hence, on the material before the Appeal Panel we find that the appellants were notified of the decision and given reasons for the decision the subject of this appeal on 27 February 2014. On this basis, the appellants' appeal was lodged with the Principal Registry on the 14th day after the day on which they received notice of the Tribunal's decision and reasons for decision. Consequently, the appellants' Notice of Appeal was lodged within the time prescribed in clause 25(4)(b) of the NCAT Rules (see also clause 6(2) of the NCAT Rules in regard to the reckoning of time). Did the respondent lodge her Reply to Appeal out of time? 30Clause 26(4) and (5) of the NCAT Rules provide that the Tribunal may direct a respondent to lodge a Reply within a specified period. Where such a direction is made, the Reply is to be lodged within that period, unless the Tribunal grants and extension of time under section 41 of the Act. 31In this appeal, the Appeal Panel directed the respondent to lodge her Reply by 7 April 2014. That Reply was not lodged until 15 April 2014. Accordingly, it was lodged out of time. 32Section 41 of the NCAT Act gives the Tribunal a discretion to extend time, of its own motion, or on application by any person and such time can be extended even though the relevant period of time has expired. 33The respondent has not sought an extension of time within which to lodge her Reply. However, in our view, as a Reply is a response to a Notice of Appeal and does not initiate an appeal, time should be extended unless it can be shown that an extension of time would unduly prejudice the appellant in his/her appeal. In this appeal, the appellant has not pointed to any prejudice if time is extended. Accordingly, it is appropriate to extend the time within which the respondent is to file and serve her Reply to appeal to 15 April 2014. Conclusion and orders 34For the reasons set out above the Appeal Panel finds that the appellants have lodged their Notice of Appeal within time. Time has also been extended for the respondent to file her Reply. 35As the appellants have objected to their application for leave to appeal and their appeal to be heard on the papers it is appropriate to make orders for the filing of any further material by the parties and to set the matter down for a short half day hearing. 36On this basis the Appeal Panel makes the following orders: (1)The Appellants' Notice of Appeal has been lodged within time. (2)Time is extended for the Respondent to file and serve her Reply. (3)On or before 10 December 2014, the Appellants to file and serve any further written submissions and other material on which they rely. (4)On or before 17 December 2014, the Respondent to file and serve any further written submissions and other material on which she relies. (5)Parties granted leave to make an application for a copy of the audio recording of the hearing before the Tribunal below. Any such application is to be made on or before 3 December 2014. (6)In the event either party seeks to rely on the audio recording of the hearing below, a copy of that recording is to be filed and served as part of the party's material in accordance with orders 3 and 4, together with a written transcript of those parts of the recording relied upon or written submissions identifying those parts of the recording relied upon. (7)The Appellants' application for leave to appeal and their appeal in the event leave is granted is listed for hearing 14 January 2015 at 10:15 AM. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ******** 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: 26 November 2014