Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Susan L Couch v BMD Removals Pty Ltd [2015] NSWCATAP 25 Hearing dates: 1 December 2014 Date of orders: 26 February 2015 Decision date: 26 February 2015 Jurisdiction: Appeal Panel Before: P H Molony, Senior Member K Rosser, Senior Member Decision: The appellant's application for an extension of time is dismissed. The appeal is dismissed. Catchwords: Application for extension of time in which to appeal –no arguable case – application dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Consumer Claims Act 1998 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Branki v Mingot (1976) 12 ALR 551 at 559-560 Drake v Minister for Immigration (1979) 2 ALD 2 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Jones v Dunkel (1959) 101 CLR 298 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 Category: Principal judgment Parties: Appellant - Susan L Couch Respondent - BMD Removals Pty Ltd Representation: Appellant – in person Respondent – M Walker (agent) File Number(s): AP 14/46522 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 8 July 2014 Before: A McMurran, General Member File Number(s): GEN 13/54045 REASONS FOR DECISION Background 1. On 17 October 2013 Ms Couch (the appellant) commenced proceedings under the Consumer Claims Act 1998 in the Consumer Trader and Tenancy Tribunal (the CTTT) claiming damages and related costs arising from an alleged breach of contract by BMD Removals Pty Ltd (the respondent). She also sought an order that she not have to pay the respondent $2,500. 2. The claim related to a contract that the parties had entered into for the respondent to provide the appellant with removalist services, and to carry her goods, when moving home from Harrington in NSW to Mildura in Victoria between 9 and 11 September 2013. The appellant claimed that the contract had been breached in a number of respects, with goods left behind, lost, and damaged. 3. The application was heard at Gosford on 11 April 2014 by the Consumer and Commercial Division (CCD) of the Civil and Administrative Tribunal (NCAT). At that time the CTTT had ceased to exist, being replaced by the NCAT upon the commencement of the Civil and Administrative Tribunal Act 2013 (the CAT Act). Cl 7 of Schedule 1 of the CAT Act provides that proceedings that were pending before the CTTT are taken to have been commenced in NCAT and may be heard by it. 4. At the conclusion of the hearing on 11 April 2014 the Member reserved his decision and made orders for the filing and service of final written submissions by the parties. Notice of those orders was sent to the parties, thus – On 11-Apr-2014 the following orders were made: 1. The decision is reserved. 2. The applicant is to file and serve written submissions by 28 April 2014 3. The respondent is to file and serve written submissions by 12 May 2014 Other reserved decision: The applicant may respond to the respondent's submissions, if she chooses to do so, by 19 May 2014. Otherwise, the Tribunal reserves its decision pending receipt of the written submissions. 1. Both parties made final submissions. 2. On 8 July 2014 the Tribunal dismissed the appellant's consumer claim and published detailed reasons for that decision. The appellant says she received notice of this decision and the reasons for decision on 14 July 2014. 3. On 21 August 2014 the appellant lodged a notice of appeal with NCAT seeking an extension of time in which to lodge the appeal (which should have been lodged no later than 11 August 2014), and leave to appeal on the ground that she may have suffered a substantial injustice because the decision was not fair and equitable, and was against the weight of the evidence. 4. The respondent subsequently sought leave to be legally represented in the appeal, and leave to adduce evidence on the appeal, which evidence it had not been allowed to adduce at the original hearing due to failure to comply with procedural directions. At a directions hearing held on 12 November 2014 the Appeal Panel refused the respondent leave to be represented by its solicitor, and for the respondent to rely on evidence that had been available to it, but not tendered due to its own default, in the original proceedings. 5. The appeal was heard by us on 1 December 2014. In doing so, for the sake of convenience, the issues of an extension of time for the appeal, leave to appeal, and the substantive appeal, were each considered, but not determined at that time. In hearing the appeal the Appeal Panel had the advantage of detailed written submissions from both parties. We exercised the Tribunal's power under s 38(6)(c) of the CAT Act to limit the time which each party had to present their respective cases, to periods that we considered reasonably necessary for the fair and adequate presentation of their cases. Material before the Appeal Panel 1. In considering the appeal that Panel had regard to the following material relied on by the parties – 1. The appellant's notice of appeal to which was annexed: 1. A document described as an "itinery (sic) for moving ALL my remaining goods" which the appellant says was quoted on and accepted by the respondent (hereinafter referred to as "the appellant's inventory.") 2. A copy of an undated letter from the NSW Department of Education & Communities to the appellant regarding a workplace incident in which the appellant was involved at work on 11 August 2014. The letter noted that the appellant remained at work after the incident, but asked that she contact the injury management advisor if she sought medical treatment. 3. A copy of the Member's reasons for decision dated 8 July 2014. 1. The respondent's reply to the appeal which was lodged by its solicitors. Annexed to it were: 1. A document entitled "Response to appellant's Grounds of Appeal." 2. A document entitled "Respondent's objection to leave being granted." 3. A document entitled Respondent's objection to an extension of time." 4. A letter from the solicitor's seeking leave to represent the respondent on appeal. 1. Submissions filed by the appellant on 17 November 2014 (14 pages) to which was annexed a copy of an email from the respondent to the CTTT dated 24 November 2013 briefly setting out its response to the appellant's consumer claim. The appellant had annotated this with her comments in reply. 2. Submissions in reply filed by the respondent on 21 November 2014 (7 pages). 3. The appellant's submissions in response filed on 28 November 2014. The principles applicable to applications to extend time 1. Section 41 of the CAT Act provides: (1) The Tribunal may, of its own motion or on an 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 principles to be applied by the Appeal Panel on applications for an extension of time in which to appeal were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The Appeal Panel relevantly said: 18 Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. 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 Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings". 19 An informative exposition of the role and nature of provisions which permit a Court or Tribunal to extend the time limits established for the orderly conduct of proceedings, including the time in which to lodge an appeal, is found in the decision of McHugh J sitting as a single justice of the High Court in Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2]: The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935: "The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion." 20 The Courts have identified in numerous cases various factors that should be considered in deciding whether to grant an extension of time in which to appeal. Substantially the same principles have also been applied by the Appeal Panel of the Administrative Decisions Tribunal (ADT), one of the predecessors of the Tribunal, in relation to appeals in the ADT - Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16], Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. These authorities provide useful guidance on the principles that are to be applied by the Appeal Panel in this regard. 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. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice. 22 The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) 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 - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] 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 - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) 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 and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]. Length of and explanation for delay 1. The appellant lodged the notice of appeal 10 days late, and therefore requires an extension of time. A short delay does not automatically excuse a failure to comply with a time limit. 2. In her notice of appeal when applying for an extension of time the appellant wrote – I did not receive the decision until 14/7/14 due to distance and notice not sent by express post. No instructions regarding appeal were included with decision. Recently I was ill, (still am) and I was injured, at work on 8/8/14. So could not use my right arms to write. I sent an email objection to appeal the decision via email, on 11/8/14 and only received link for appeal on 12/8/14. 1. A review of the Tribunal file reveals that the appellant wrote a six page letter to the Member asking him to reconsider his decision on 10 August 2014. This was emailed to the Newcastle Registry on 11 August 2014 under cover of an email, which said – Please see the attached request to appeal the recent judgment made in this case. The next day the Registrar advised the appellant by email that she had a limited right to lodge an internal appeal to an NCAT Appeal Panel and that time limits apply. She was provided with a link to the notice of appeal form, and advised that the Member could not reconsider her decision on the basis of her letter. 1. From this we conclude that the appellant wrote to the Tribunal within the time limit for the filing of an appeal (28 days from the receipt of reasons for decision and notice of order: see rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014) seeking to have the decision appealed or reconsidered. Ten days later, having received advice as to the correct procedure from the Registrar the appellant lodged her notice of appeal. 2. The respondent submitted that the appellant has not provided a reasonable explanation of her delay. The appellant's claim that she was injured at work on 8 August 2014 was said to be irrelevant because – 1. The appellant had not provided an explanation for not preparing her appeal between receipt of the decision and 8 August 2014; and 2. She was able to work despite her injury. 1. We are not persuaded by these arguments. It is clear that between receipt of the decision and 10 August 2014 the appellant prepared the detailed letter to the Member asking him to reconsider his decision. Between 12 August 2014, when the appellant was advised of the correct appeal procedure, and 21 August 2014, when the appeal was lodged by mail from Mildura, the appellant completed and lodged the notice of appeal, which was completed by hand (all her other submissions have been typed). 2. On balance we think that the appellant has provided a reasonable explanation for the delay in lodging her notice of appeal. We are also satisfied that she did seek to appeal, or to have the decision reconsidered by the Member, within time, but did not do so in proper form. Prejudice to the Respondent 1. The respondent has the benefit of a vested order dismissing the appellant's claims against it. If an extension of time is granted it may lose the benefit of the order made in its favour, and face the prospect of the loss of further time and money involved in again defending the claim. The Panel accepts that this is potentially prejudicial to its interests. The Appellant's prospects of success 1. An appellant from a decision of the CCD may appeal a final decision of the Tribunal on a question of law as of right, but requires leave to appeal such a decision on any other grounds. In the case of appeals from the CCD clause 12(1) of Schedule 4 to the CAT Act provides that leave may only be granted on the ground that the appellant may have suffered a substantial injustice 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). 1. In her notice of appeal the appellant set out the following grounds of appeal – 1. The applicant has suffered a substantial miscarriage of justice because the decision was not fair and equitable. 2. The decision was against the weight of the evidence and logic e.g. Mr Walker (BMD) issued me to complete an insurance claim form but said my losses were not covered. 3. Member has used the wrong inventory so misunderstood that all items were listed, quoted on, and were to be relocated by BMD. 4. Decision was based on respondent's testimony, rather than the applicant's evidence, despite contradictory testimony by witness. 5. Despite acknowledging respondent's failure to behave professionally, Member preferred his testimony. 6. Factual errors in reasons given for decision which evidence and transcript of hearing will show. 7. Insufficient time at hearing to respond: no break given at full day hearing by phone. 1. Of these, only ground 7 could be said to represent an error of law, namely a denial of procedural fairness to the appellant. All grounds however are relevant relate to the issues of whether: 1. The appellant should be granted leave to appeal the decision on the ground that the she may have suffered substantial injustice because the decision is not fair and equitable or was against the weight of the evidence; and 2. The appeal should be allowed on those grounds. Does the appellant have a reasonably arguable case 1. The appellant wishes to seek leave to appeal on the grounds that she may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, or was against the weight of evidence: see cl 12 of Schedule 4 to the CAT Act. 2. In seeking leave to appeal in her notice of appeal the appellant wrote- The decision was based on the respondent's false testimony although he provided no evidence supporting his claim except testimony of an employee, which, at times, contradicted his employer's testimony. This despite acknowledging his failure to behave professionally (checking goods, signing inventory, listing prior damages etc) and the fact that his other employee did not appear as a witness or sign a stat dec which suggests he was not prepared to give false testimony, even to save his job. The applicant's testimony and evidence was discounted although rarely contradicted by the respondent. I was also denied a break during the hearing and denied "natural justice" as I was not able to explain or ask enough questions. 1. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel reviewed the case law relating to the granting of leave to appeal generally and offered the following summary, at [84]: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]. (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 1. With respect to the requirements of cl 12 of the First Schedule of the CAT Act, concerning appeals from the CCD, the Appeal Panel said - 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]. 1. When one considers the appellant's grounds of appeal and supporting submissions, it becomes apparent that the appellant's concerns regarding the decision of the Member can viewed as fitting into a number of categories. These are: 1. That the decision was not fair and equitable because the appellant was denied procedural fairness by: 1. Not being given a break during the hearing; 2. Being denied the opportunity to ask further questions of the respondent's witness, Mr Bartrim; and 3. Not having her final submissions considered. 1. That the decision was not fair and equitable and was against the weight of evidence because: 1. The Tribunal preferred the respondent's evidence over hers. 2. The Tribunal used the wrong inventory. 3. The Tribunal failed have regard to evidence produced by her from third persons which was consistent with her evidence. 4. The Tribunal failed to draw a conclusion that the respondent's third employee did not give evidence because he refused to lie like the employees who gave evidence. 1. It should also be noted that a substantial proportion of the appellant's submissions are directed at procedural non-compliance by the respondent throughout the course of this appeal (and earlier), and an alleged lack of honesty by its representative, Mr Walker, concerning those issues. Mr Walker in turn, in his submissions, took issue with the appellant's views and denied any wrongdoing. The Appeal Panel did not find any of these submissions of assistance, as they do not go the issues in this appeal. 2. We think there is little merit to the appellant's claim that she was denied procedural fairness, and that as a consequence the decision was not fair and equitable. We reach this conclusion, on both an error of law basis and on the on the basis we are not satisfied that the alleged denial of procedural fairness errors caused the decision to not be fair and equitable. This is so for a number of reasons. 3. First, contrary to the appellant's assertion, two breaks were taken during the hearing, lunch and an unscheduled break when a fire drill took place at the hearing venue. The appellant worked through her lunch break, recalculating her claim in the light of comments made by the member concerning the adequacy of her proofs of loss. This is not an unusual or uncommon event. Indeed being fully occupied in the course of a hearing day is the norm, rather than the exception. The appellant has not drawn to our attention any disability or other disadvantage she suffers from which might have entitled her to special consideration in this regard, and, most importantly, there is no evidence of any such information being before the Member. We do not agree that she was denied procedural fairness by being denied a break. 4. In the course of oral submissions the appellant claimed that she was denied the opportunity to ask all the questions she wanted to ask the respondent's witness, Mr Bartrim. She asserted that the member had told her she would have the opportunity to ask him questions at the next hearing. But, she said, that next hearing had never taken place, with the Member instead providing a written determination. This she claimed was a denial of procedural fairness to her. 5. In order to resolve this issue we have listened to part of the oral recording of the hearing, in the absence of either party filing a transcript of the hearing. The recording discloses that at the conclusion of Mr Bartrim's evidence the appellant told the Tribunal that she disagreed with his evidence as to when she was first told that all of the goods in her unit for removal to Mildura would not fit in the respondent's truck. The Tribunal then said – All right, If you've no more question for Mr Bartrim I will let him go, and unless you want him to come back on the next occasion, if we have to come back again. Mr Bartim you're excused from any further attendance unless one of the parties requires you to be here. The Tribunal certainly doesn't. And thank you for your attendance and thankyou for your time this afternoon. … 1. The Tribunal then observed that, "that really gets as far as we are going today" and asked Mr Walker whether he had any further evidence he wanted to call. He replied, "No," but added a further question he wanted to ask Mr Bartrim, which Mr Bartrim answered. 2. The Tribunal then embarked on a lengthy discussion with the parties as to what would happen next, with the Member observing that, "I do not want to bring you back unnecessarily." This resulted in the Member determining to reserve his decision, and putting in place a timetable for submissions in writing from the parties, in consultation with them. At no point in that discussion did the appellant indicate that she wished to question Mr Bartrim further, or would prefer for the hearing to be adjourned to another day. 3. In the light of our consideration of the recording of the hearing, we think there is no merit in the appellant's claim that she was denied procedural fairness by being prevented from asking questions of the respondent's witness, or that the Member's decision was made without notice to her. At the conclusion of the hearing on 11 April 2014 the respondent indicated it had no further evidence to call, and the Tribunal put in place a mechanism for the parties to make final submissions in writing, before a written determination of the dispute was made. The appellant made submissions in accordance with that mechanism. Her claim that she was denied procedural fairness in this regard is without merit. 4. Next, the appellant submitted that the Member did not have any regard to her final submissions when making his determination. Once again, we consider there is no merit in this submission. Paragraph 6 of the Tribunal's reasons for decisions state – In response to directions from the Tribunal, the applicant filed submissions on 25 November 2013, 10 February 2014, and then further submissions following the hearing, on 1 May 2014 and again on 4 June 2014 in reply to written submissions form the respondent. It is apparent that the Member had those submissions and considered them when writing his reasons for decision. The fact that his conclusions did not accord with the submissions does not demonstrate that he had no regard to them. Was the decision against the weight of the evidence? 1. The appellant's submissions take issue with many of the findings of fact made by the Tribunal. They are replete with instances in which the appellant seeks to impugn the honesty and integrity of the respondent, and its employees, and to bolster her own status as a witness of truth. It is principally this view, as to the relative merits of the honesty and consistency of her evidence vis a vis that of the witnesses called by the respondent, which underlies her submission that the decision reached by the Tribunal was "against the weight of the evidence." As the Appeal Panel noted in Collins v Urban this means that, "the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach." 2. This requires some consideration of the some conclusions reached by the Tribunal and of the evidence before it. 3. The appellant's claim was for damages for a breach of contract by the respondent to load and carry household contents to Mildura. The appellant packed her own boxes, and did not request a quote from the respondent for packing. A quote was requested on line, with respect to the transport of 45 cubic meters of the appellant's possessions. In requesting the quote the appellant supplied the respondent with an "eMove" removal inventory, which calculated the cubic volume of goods to be moved. There was no dispute that the respondent quoted on that basis, and did not inspect the goods to be moved prior to the moving day. The quote of $3,500 was accepted by email. In the quote the respondent advised "No need for an inventory." 4. It was accepted by both parties that not all of the goods at the appellant's Harrington home were to be moved to Mildura. 5. The appellant alleged that in the course of the move the respondent failed to load certain goods, gave away other goods without authority, lost goods entrusted to its care, and damaged other goods. In response the respondent's evidence was that it had loaded what the appellant instructed its employees to load. It denied giving away any goods (but its employees gave evidence that they had observed the appellant doing so) and denied that any goods were lost or damaged in the course of the move. 6. At paragraph 28 of its decision the Tribunal wrote – The Applicant relied principally on her "electronic inventory" as evidence of what was packed and what was to be conveyed. Unfortunately, the inventory was not checked or ticked off by the respondent and most boxed items were packed by the applicant herself, excluding furniture. There is no evidence that the respondent's Mr Walker inspected the packed boxes. 1. Later at paragraphs 45 to 47 and 49 the Tribunal continued – 45. To prove the damaged and missing items, the applicant relies principally on List A in her bundle of documents. The difficulty with that list is that it was prepared unilaterally, not sighted by the respondent nor checked by him and in fact Mr Walker disputes its contents, maintaining that all items were delivered, other than those the applicant chose to leave behind. It was common ground that at least 10 cubic metres would not be included in the move, and it was incumbent on the applicant to identify those items with some specificity. 46. The applicant bears the onus of proof to establish what it is that was packed by her in boxes and in what condition. It is not enough in the Tribunal's view for the applicant to simply prepare a list after the event, as set out in List A, without having provided the respondent or someone on its behalf an opportunity to verify the contents. This is especially so in circumstances where the respondent was not engaged to pack the goods, now alleged to have either been damaged or "missing". 47. The evidence as to what was allegedly damaged, missing or left behind is in the Tribunal's view, entirely unsatisfactory. In hindsight, it would have been a better exercise for both parties to have noted in writing the number of boxes packed by the applicant, the furniture items to be conveyed and noting those items to be left behind. Some agreement should have been noted as to the condition of specific furniture items said to have been already damaged. Time on the day did not permit the parties to check and verify. As that did not occur, the Tribunal is left to speculate on the evidence and cannot be satisfied as to the identification of those items. … 49. The applicant prepared a list marked "SD3a" in her bundle and titled "Items Not Delivered." The same problem confronts the applicant with the preparation of this list, as with list A. it was never checked or verified by the respondent. 1. This view of the unsatisfactory nature of the evidence produced by the appellant was at the heart of the Tribunal decision to dismiss her claim. Importantly the Tribunal also noted at paragraph 60 that – 60. …The evidence from both the applicant and the respondent confirms that there was little contemporaneous complaint about damage. Complaints only arose after the event and following the commencement of legal process. 1. In addition, when summarising its reasons for decision the Tribunal wrote – 80. In this case, the Tribunal is satisfied that in all the circumstances andhaving carefully regarded the evidence of the parties, the respondent took such care of the goods once loaded on his truck, as in all the circumstances was reasonable. This takes into account the undisputed evidence from both parties that there was a large amount of confusion on the day, exacerbated by time constraints, the fact there were more goods by cubic metre, than estimated by the applicant for loading and carrying, and goods given away on the day by the applicant or already damaged which were not specifically identified. 81. To the extent that there are inconsistencies between the evidence given by or on behalf of the respondent and the allegations and claims made by the applicant. The Tribunal prefers the evidence of the respondent. 82. To the extent that the applicant has unilaterally and painstakingly prepared inventories of goods lost, damaged and/or left behind, that evidence is not reliable and the Tribunal has already stated that it does not meet the civil standard. It is impossible to be satisfied that the items in the applicant's list prepared after the event and the subject of the applicant's inventories were in fact goods "lost", or left behind or damaged. 83. To the extent that the applicant asserts items were broken during transit or during the unpacking stage, the evidence consists primarily of that of the applicant and the evidence of Mr Bartrim, Mr Walker gave no specific evidence about items alleged to have been damaged or broken in transit and while at Mildura when being unloaded. 84. The Tribunal cannot be satisfied on the evidence as it was presented that the particular goods nominated by the applicant were in fact damaged by the respondent during transit. Those goods fall into the same category as those alleged to have been lost or left behind, given that there was no proper inventory prepared at the outset, no mutual inspection of goods at the beginning for identification purposes, or at the end. These was also no opportunity provided to the respondent or anyone to verify the complaints made after the event by the applicant and which complaints were not made contemporaneously. 1. In the circumstances of this case it is our view the Tribunal' s conclusion that inventories and lists, prepared unilaterally by one party, and not agreed to by the other party, did not establish what was transported, its condition, or what was lost, was a conclusion that was open to the Tribunal, and was one the Member could reasonably reach. Once it was reached, the appellant's claims were bound to fail because she could not demonstrate that she had placed the missing or damaged goods in the care of the respondent, or the nature of their condition when she did so. 2. In passing we note that in the course of its reasons for decision the Tribunal referred to and determined a number of associated issues adversely to the appellant. These were: 1. A dispute as to whether or not a valuable carpet was loaded on the truck but not delivered in Mildura; 2. A dispute as to whether or not the respondent's employees warned the appellant shortly after their arrival with the truck that all her goods would not fit in the truck; 3. A dispute as to who gave away unidentified goods belonging to the appellant; the appellant herself or the respondent's employees without permission. The Tribunal accepted the respondent's evidence with respect to each of these matters, and preferred it over that of the appellant. Each of those conclusions was one that a reasonable Tribunal Member could reach on the evidence before the Tribunal. 1. The Tribunal's finding that it preferred the evidence of the respondent over that of the appellant where they differed is the subject of considerable complaint by the appellant. At the heart of the appellant's submissions in this regard is her view at to the reliability and probity of her evidence, when compared to that of the evidence adduced by the respondent. That the Tribunal took a different view and preferred the evidence of the respondent where it differed from that of the appellant does not ipso facto demonstrate that the Tribunal's decision was against the weight of the evidence or not fair and equitable. The Tribunal Member had the benefit of seeing and hearing the evidence given by both parties and was in the best position to assess the relative merits of their competing evidence. He came to a conclusion, adverse to the appellant, as to the reliability of the respondent's evidence vis a vis that of the appellant. That conclusion was reasonably open to him on the evidence. We add that, irrespective of the Tribunal's expressed preference for the evidence lead by the respondent, the Tribunal's findings with respect to the associated disputes did not impact on its principal reason for dismissing the appellant's claim; i.e. that it did not accept on the balance of probabilities the evidence the appellant relied on to prove what had been consigned into the respondent's care, and its condition. 2. Further, the appellant submitted that the Tribunal's decision was against the weight of the evidence and that the decision was not fair or equitable because the Tribunal used the wrong inventory. Paragraph 32 and 33 of the Member's reasons said – 32. The volume of goods in the property was a major factual issue. The applicant relied on a document created by her from an online program which she used to determine the number of cubic metres of goods in her home. That appears at document I1A. The document prepared by the applicant calculated a total cubic metreage of 54.46 and which included, according to the applicant, items which she knew would not separately be carried by the respondent. In the Tribunal's view, those items were never clearly identified. The applicant's calculation was never seen by the respondent and was not an "agreed' calculation of the number of cubic metres in the villa. The respondent disputed the amount in argument, asserting there was significantly more than estimated by the applicant. 2. The applicant confirmed that she had been living in the property with two teenage children for two years and conceded it contained a large number of items. The applicant had obtained two quotes, one for 44.96 cubic metres from the respondent for $3,500.00 and a second quote for 54.46 cubic metres for $4,000.00. The applicant chose the lesser amount being approximately 45 cubic metres on the basis that not all items would be removed and some would be donated or given to others. 1. It is apparent that the Tribunal proceeded on the basis that the contract between the parties proceeded was for 44.96 cubic meters to be moved. The Panel accepts that the eMove calculation inventory for that cubic meterage is not appellant's document I1a, as stated by the Member, but document I1b. Document I1a was for 54.46 meters. The point the appellant seeks to make from this is that the quote she accepted was for all her remaining goods and that there should have been no surplus. It is to be noted however that the Tribunal found that by 4pm on moving day that – … it was self-evident that all of the contents of the property would not fit in the truck. The Tribunal also noted that both Mr Walker and Mr Bartrim gave evidence that when they first saw to volume of goods to be moved they expressed the view to the appellant that it would exceed the capacity of the truck. This was denied by the appellant. 1. In the Panel's view there is no doubt that the Tribunal proceeded on the basis that the contract was for the removal of 44.96 cubic meters of goods, based on an eMove calculation inventory that was never seen by the respondent. The fact that the Tribunal wrongly identified that document in its reasons as document I1a, rather than I1b, is immaterial to the conclusion of fact reached by the Member. It does not demonstrate the conclusions reached by the Member were against the weight of the evidence, but that he made an error in citing a document. 2. Thirdly, the appellant argued that the Tribunal did not have regard to evidence from third parties upon which she relied. These were: 1. A statutory declaration from the appellant's neighbour in Mildura (the neighbour's evidence) concerning complaints the appellant made to her about missing goods "after the trucks left." The neighbour also deposes to - 1. Assisting the appellant unpack boxes in the ensuing weeks which contained items of no value and that the appellant told her that "her good things would fit in the truck if they did not fill it with junk she told them to leave." 2. That "many times" she saw the appellant with "new things" purchased "because the movers did not bring her things." 1. An email from the estate agent for the appellant's Harrington premises dated 26 August 2013 (the agent's email) confirming arrangement for an outgoing inspection at 4pm on 9 September 2013 "to see how you are progressing," and advising that. "I can only do the outgoing when you are completely out & the place is clean." 2. Evidence that she had engaged a cleaner to clear the Harrington premises on the day of removal. 1. The appellant is correct in saying that the Member did not refer to this evidence. It is not incumbent on a member when giving reasons for decision to deal with and consider every factual issue raised by a party (Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407, at 423 per McHugh J) or ones that are not material to the decision (Drake v Minister for Immigration (1979) 2 ALD 2 per Smithers J). It is not uncommon in Tribunal proceedings for parties to rely on evidence of little or no probative value, or that is immaterial to the resolution of the dispute. That was the case here. 2. The neighbour's evidence was essentially hearsay evidence of what the appellant had told her. Aside from her own observations, which do not of themselves provide evidence of goods not moved, or of goods lost or damaged during the move, the substance of the neighbour's evidence relies on what the appellant told her. As such the neighbour's evidence was subsidiary to the conflict between the appellant's evidence and that advanced by the respondent. The Tribunal resolved this by rejecting the appellant's evidence as to what was consigned into the respondent's care and its condition. We can see no requirement that the Tribunal expressly deal with the subsidiary conflict in those circumstances. The foundation of the subsidiary evidence had already been rejected. 3. The point the appellant seeks to make by relying on the agent's email about the cleaning arrangements is that she would not have made arrangements for cleaning and inspection if she had known that there would still be goods remaining in the house. This is said to support her version of events, and, as a result, the appellant considers it required direct consideration by the Member. As a matter of logic we are unable to see how arrangements made some time before the date of the move can provide evidence of what occurred on the date of the move. We see no need for the Member to directly consider this evidence in his reasons in the light of the direct evidence before him, from both parties, as to what occurred on moving day. Further, in light of the member's conclusions as to the appellant's being unable to prove her case in the absence of an agreed inventory, we are unable to see how this evidence from third parties demonstrates that the decision reached by the Member was not one that was reasonably open to him. 4. Finally, the appellant argued that the Tribunal had not drawn an adverse inference from the respondent's failure to call evidence from its third employee, and that this was not fair and equitable or contrary to the weight of the evidence. The inference the appellant said should have been drawn was that the employee "was not prepared to give false testimony, even to save his job." In submissions the respondent explained that at the time of the hearing that person no longer worked for it. 5. The only inference that can be drawn from the unexplained failure by a party to call a witness is that the witnesses' evidence would not have assisted that party's case: Jones v Dunkel (1959) 101 CLR 298. It cannot be inferred that the evidence would have been unfavourable to the party's case. (Branki v Mingot (1976) 12 ALR 551 at 559-560.) . 6. There is no evidence that the appellant asked the Tribunal to draw an adverse inference during the hearing. Rather this seems to be a point reserved for the appeal. As a consequence this ground of appeal is without merit. 7. Assuming that the respondent's explanation for the third employee's failure to give evidence is unsatisfactory (an issue it is not necessary for us to decide) the adverse inference which the appellant argues the Tribunal should have drawn (i.e., that the employee was unwilling to give false evidence) is not one the Tribunal could have drawn. The fact that the Tribunal did not draw the inference it could have drawn (that the employee's evidence would not have assisted its case) does not result in the Tribunal's decision being against the weight of the evidence, or the decision not being fair and equitable. 8. In the light of the above we conclude that the appellant does not have an arguable case with respect to her proposed appeal. Conclusion concerning the application to extend time. 1. In the light of the conclusions reached above the Appeal Panel refuses the appellant's application for an extension of time. We are satisfied that the appellant will not suffer an injustice as a consequence. While she has explained the delay in seeking to appeal, she does not have an arguable case and has no prospect of success. 2. In so far as it may be necessary to do so, because of the filing of the Notice of Appeal, the appeal itself should be dismissed, being out of time. The orders we make are: 1. The appellant's application for an extension of time is dismissed. 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: 26 February 2015