Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jack Tilburn v The Owners-Strata Plan No 21079 [2014] NSWCATCD 204 Hearing dates: 20 October 2014 Decision date: 28 October 2014 Jurisdiction: Consumer and Commercial Division Before: S Westgarth, Deputy President Decision: Application dismissed Catchwords: Application for reinstatement – S 55(2) Legislation Cited: The Civil and Administrative Tribunal Act (NSW) 2013 (the Act) The Strata Schemes Management Act 1996 (SSMA) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: Jack Tilburn (applicant) The Owners-Strata Plan No 21079 (respondent) Representation: J Tilburn (in person) Mr Prestipino (for the respondent) File Number(s): SCS 14/15790 Publication restriction: Unrestricted REASONS FOR DECISION BACKGROUND 1. This is an application under s 55(2) of the Act to reinstate proceedings which were dismissed on 11 June 2014. Those proceedings were an appeal from a decision of an Adjudicator published on 20 February 2014. The Adjudicator was exercising functions conferred by virtue of the SSMA. The applicant had sought orders from the Adjudicator invalidating one or more resolutions of the executive committee of the Body Corporate and seeking the appointment of a compulsory manager. The Adjudicator dismissed the application. The applicant appealed to the Tribunal and on 11 June 2014 the appeal was dismissed. 2. The Adjudicator stated that the applicant had not provided any evidence that is relevant to the making of an order for the appointment of a strata manager and that the applicant had failed to supply the requisite consent by a strata manager to be appointed. In addition the Adjudicator stated that the applicant had provided no evidence in support of the application that certain motions contested by the applicant should be invalidated. 3. As stated the applicant lodged an appeal in respect of the Adjudicator's decision and that appeal first came before the Tribunal on the 9 April 2014 for directions. The directions hearing was listed before the same Member who was the Adjudicator. That was an error and contrary to Tribunal practice but the matter was appropriately dealt with by adjourning the proceedings for a later directions hearing. That directions hearing occurred on 5 May 2014 before another Member. The applicant was present as was a representative of the Owners Corporation. Directions were made for the parties to exchange any relevant documents upon which they proposed to rely at the appeal. The applicant complied with that order by filing with the Tribunal a document received on the 19 May 2014. The respondent complied by filing a document received on 3 June 2014. 4. The Tribunal forwarded a Notice of Directions Hearing on 6 May 2014 advising the parties that the application had been listed before the Tribunal on 11 June 2014 at 9:15 am. That notice included the following warning: "It is important that you are on time as the Tribunal may decide the matter in your absence. The decision will be binding on you." 1. When the proceedings came before the Tribunal on 11 June a representative of the respondent was present but the applicant was not present. The Tribunal went on to determine the matter in the absence of the applicant. The Tribunal dismissed the appeal because: "The appeal is vexatious and misconceived, the appellant has failed to appear." In addition there was an order that the appellant pay the cost of the respondent in the sum of $ 600. 2. The applicant then forwarded a facsimile to the Tribunal on 8 July 2014 seeking to have the proceedings reinstated pursuant to provisions of section 55(2) of the Act. Unfortunately, the Tribunal Registry did not treat that as an application for reinstatement but instead treated it as a complaint about the conduct of the earlier hearing. It was therefore dealt with within the Registry as a complaint. 3. Subsequently the application came to the attention of the Deputy President who determined that the matter should be listed for a hearing of the application for reinstatement as contained in the facsimile received on 8 July 2014. THE PRESENT APPLICATION 1. The present application came before the Tribunal on 20 October 2014 and the applicant was present. The respondent was represented by a solicitor. 2. The applicant submitted that he had not appeared on 11 June 2014 because of the effect of post -traumatic stress disorder (PTSD). He stated that he was ill on 11 June and unable to attend. He had no medical evidence or certificate in support of that submission. He also submitted that he had thought that the hearing on 11 June was a merely a directions hearing and that had he known that the proceedings could have been dismissed he would have made an effort to be present. 3. The applicant submitted that the respondent's submissions received by the Tribunal on 3 June had not been received by him prior to the hearing on 11 June notwithstanding that the respondent provided evidence that a copy had been sent to his address at the same time that the original had been sent to the Tribunal. 4. The applicant submitted that he learnt of the decision the following day (12 June) and thereafter proceeded to consider what he needed to do. He explained that he was unsure of his next step and it took him sometime to decide what needed to be done. Once he completed his enquiries he thereafter lodged the facsimile of 8 July 2014 with the Tribunal. The respondent never received that facsimile and was provided a copy during the course the hearing. 5. Rule 36 of the Tribunal Rules is in the following terms: "Unless the Tribunal grants an extension under section 41 of the Act, an application made to Tribunal to reinstate proceedings that were dismissed under section 55 (1) (c) of the Act must be made within 7 days after the Tribunal dismissed the proceedings that are sought to be reinstated." 1. Accordingly the applicant made an application for an extension of time under section 41 of the Act. The applicant submitted that the delay in filing the reinstatement application was not long (the relevant delay is two to three weeks) and that an allowance should be made for him on account of his health and age (he submitted that he was 88 years of age). 2. The applicant submitted that if the decision of 11 June 2014 is to be set aside, then the order for costs should also be set aside. 3. The applicant informed the Tribunal that he is regularly seeing a doctor and had recently seen the doctor in connection with the renewal of his driver's licence. 4. The respondent opposed the application. THE DECISION 1. The initial question is whether the decision of 11 June 2014 was made under s 55 (1)(c) of the Act. If it was not, then this application under s 55(2) is misconceived and the applicant's remedy if he wishes to contest the decision of 11 June 2014 is elsewhere. S 55 is in the following terms: "Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure". 1. The dismissal of 11 June 2014 is not stated to have been made under s 55 (1)(c). The appeal was dismissed because: "The appeal is vexatious and misconceived; the appellant failed to appear". 2. It is clear that s 55(2) is not available where a decision to dismiss has been made pursuant to s 55(1)(b). That was the case here. Although the dismissal was also based on the appellants failure to appear that fact does not permit a s 55(2) application where another ground identified in s 55(1)(a), (b) or (d) also constitutes the basis for the dismissal. 3. Accordingly, the reinstatement procedure available under s 55(2) is not available to the applicant. If the applicant decides to appeal against the decision of 11 June 2014 he needs to consider alternative procedures. 4. However, if I am wrong on this analysis and the application is treated as an application under s 55(2), the first question is whether the time for lodgement of the application for reinstatement should be extended pursuant to section 41 of the Act. As indicated in Rule 36, unless an extension is granted, an application to reinstate proceedings must be made within 7 days after the Tribunal dismisses the proceedings. 5. The relevant principles concerning whether time should be extended under Section 41 has been dealt with by an Appeal Panel in the case Jackson v NSW Land and Housing Corporation. That decision makes it clear that the relevant considerations may be described as follows: 1. The length of the delay 2. Reason for delay 3. The prospects of success, that is whether the application has an fairly arguable case 4. The extent of any prejudice suffered by the respondent to the application. 1. Here the delay was not excessive. It was only a matter of weeks. The respondent has not put forward an argument that the delay caused any prejudice. The delay between the 8 July and 20 October in dealing with the application is not the fault of the applicant. That delay occurred within the Tribunal. 2. The reason for the delay may be summarised as follows. Firstly the applicant stated that he suffers PTSD and secondly he stated that he had some difficulty working out what needed to be done in response to the decision made on 11 June. As against those two matters, it is relevant that the applicant produced no supporting medical evidence even though he is regularly seeing a doctor and there was no suggestion that he was unable to obtain supporting medical evidence. The fact that the applicant needed to work out what needed to be done is not necessarily a persuasive consideration. The rule provides for a relatively short period of time in which to seek reinstatement and it is obviously necessary for parties to act promptly where they wish to seek reinstatement. 3. The third consideration is the applicant's prospects for success. The decision of 11 June 2014 dismissing the application described the application as vexatious and misconceived. The member described the applicant's submission as written in "violent and abusive" terms, making "unsubstantiated allegations" against the Adjudicator and others. 4. There was nothing put by the applicant demonstrating or even suggesting that the member's description of the applicant's case as misconceived and containing unsubstantiated allegations was an error. Similarly the applicant did not seek to demonstrate that the decision of the Adjudicator contained error. The only point made the applicant was that his failure to obtain the consent of a strata manager to be appointed as compulsory manager is something which he should not be responsible for but is something the Tribunal should itself obtain. 5. Having considered the applicant's submissions, the Tribunal's decision and reasons of 11 June 2014 and the Adjudicator's decision and reasons, it is clear to me that the applicant's case has very slim chances of success. Indeed, in my view it is a case which might be described as having no reasonable prospect of success. 6. Accordingly, I would decline leave to extend time under section 41. 7. The application must be dismissed. 8. Finally I note that the respondent's representative did not seek any order other than dismissal. S Westgarth Deputy President Civil and Administrative Tribunal of New South Wales 28 October 2014 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: 05 February 2015