Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Clapham v Elsworth [2015] NSWCATAP 54 Hearing dates: 10 March 2015 Date of orders: 19 March 2015 Decision date: 19 March 2015 Jurisdiction: Appeal Panel Before: D Patten – Principal Member K Rosser – Senior Member Decision: 1. The application for an extension of time in which to appeal is refused. 2. The appeal is dismissed. 3. The stay order made on 2 December 2014 in matter RT 14/09272 is lifted. Catchwords: Appeal - Civil and Administrative Tribunal (NSW); extension of time; prospects of success Legislation Cited: Civil and Administrative Tribunal Act NSW (2013) Residential Tenancies Act NSW 2010 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Ian Robert Clapham - Appellant Frank Elsworth - Respondent Representation: Appellant - self-represented Respondent – Mr Brian Grant (Managing Agent) File Number(s): AP 14/50295 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 9 September 2014 Before: K Holwell – General Member File Number(s): RT 14/18327 and RT 14/09272 Reasons for Decision Introduction 1. By Notice of Appeal filed on 22 October 2015, the appellant seeks to appeal decisions made by the Consumer and Commercial Division of the Tribunal on 9 September 2014 in matters RT 14/18327 and RT 14/09272. The Notice of Appeal states that the appellant received the decisions on 18 September 2014. 2. The decisions were in related applications. RT 14/18327 was filed by the appellant and RT 14/09272 was filed by the respondent. Both applications related to a tenancy agreement between the parties which terminated on 2 February 2014 when the appellant, who was the tenant under the agreement, vacated the residential premises. 3. In RT 14/09272 The Tribunal ordered the appellant to pay the respondent the sum of $1671.54 by 22 September 2014. This was for rent arrears owing at the end of the tenancy. The Tribunal dismissed RT 14/18327, in which the appellant sought compensation for goods said to have been stolen by the respondent or his employees and for damage to motor vehicles said to have been caused by the respondent's failure to repair the access road to the premises. The Tribunal set out the reasons for its decision in each application in the one document. 4. On appeal, the appellant seeks an order that the respondent pay him $10,445.13, which consists of compensation in the sum of $12,116.67 less $1671.54 for rent arrears. The appellant therefore concedes that he owes the respondent rent arrears in the sum of $1671.54. 5. For the reasons set out below, the Appeal Panel has decided not to extend time in which to bring the appeal and has accordingly dismissed the appeal. The Law 1. The Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may arise. This is an internal appeal under s 80(2)(b) of the Act. Such an appeal may be made as of right on any question of law, or with leave of the Appeal Panel on any other grounds. 2. Appeals on any other grounds from decisions made in the Consumer and Commercial Division are governed by Schedule 4, clause 12 of the NCAT Act. This clause provides that an Appeal Panel may grant leave to appeal if satisfied the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable or that it was against the weight of the evidence, or because significant new evidence has arisen, being evidence that was not reasonably available at the time of the hearing. 3. Unless the Appeal Panel grants an extension under section 41 of the NCAT Act, an internal appeal against a decision made in residential proceedings must be made 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): clause 25 of the Civil and Administrative Tribunal Rules 2013 (the NCAT Rules). Residential proceedings are defined in clause 3 of the NCAT Rules as including proceedings allocated to the Consumer and Commercial Division of the Tribunal arising under the Residential Tenancies Act 2010. 4. As noted above, the appellant was notified of the Tribunal's decision on 18 September 2014. The Notice of Appeal was filed on 22 October 2014. As the appeal relates to decisions made in residential proceedings, a 14 day time period applies. Therefore the Notice of Appeal should have been filed by 2 October 2014 and an extension of time is required for the appeal to proceed. The Appeal Panel has considered the factors relevant to extending time under s 41 of the NCAT Act. Our findings are set out below. Evidence and submissions 1. In determining the appeal, we have considered the following: * The Notice of Appeal filed on 22 October 2014 with its attached elaboration of the grounds of appeal; * The Reply to Appeal dated 13 November 2014; * The appellant's statutory declaration dated 18 December 2014; * The statutory declarations made by the appellant in the proceedings before the Tribunal; * The oral submissions made during the hearing by the appellant and by the respondent's managing agent Mr Grant. Notice of Appeal 1. The grounds of appeal are set out in the Notice of Appeal. They are as follows: 1. I don't consider that Member Bassett gave satisfactory weight to the evidence I provided to the Tribunal. 2. Member Bassett has misinterpreted much of my oral evidence. 3. Member Bassett accepted new oral evidence from the landlord's agent in the summing up stage of the hearing. 4. I was not permitted the opportunity to properly respond to the new evidence provided at the summation or cross-examine. 5. An email from the landlord's manager was accepted as evidence despite it not being sworn or properly supported by other evidence. 6. I was not permitted the opportunity to cross-examine the landlord's manager. 1. The Appeal Panel concludes that with the exception of the appellant's claim that he was not given an opportunity to respond to new evidence or to cross-examine, the grounds of appeal go to questions of fact, rather than questions of law. Extension of time 1. The appellant seeks an extension of time in which to file the appeal. He states that he didn't lodge the Notice of Appeal within 14 days of being notified of the decision because he was told by Registry staff that he had 28 days in which to appeal. 2. The Appeal Panel considered the principles which govern the granting of an extension of time in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel stated at [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] NSWCA 369; (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] NSWCA 369; (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]. 1. The Appeal Panel has considered the application of these principles to this appeal as follows. Consideration Length of delay and reason for delay 1. In relation to the length of the delay and the reason for the delay, we accept that the appellant understood that he had 28 days in which to appeal. This is a plausible explanation for the Notice of Appeal not being filed within 14 days. Although the Notice of Appeal was not filed within 28 days, it was filed only a few days outside this period. In these circumstances, we conclude that neither the length of the delay nor the reason for the delay weigh against granting an extension of time. Prejudice to the respondent 1. In relation to potential prejudice to the respondent, in the Reply to Appeal the respondent states that he objects to an extension of time being granted. However, the respondent does not elaborate on why he considers that he would be prejudiced were an extension of time to be granted. While we accept that there is some inherent prejudice to the respondent in an appeal being pursued once the time for doing so has expired, the respondent was able to adequately respond to the grounds of appeal. The Appeal Panel considers that any potential prejudice to the respondent does not weigh strongly against extending time. Prospects of success 1. The Notice of Appeal does not explicitly raise any questions of law. However, as the appellant is unrepresented, we have considered whether any questions of law are raised. As noted above, a possible question of law relates to the appellant's assertions that he was not given the opportunity to respond to "new oral evidence" raised in closing submissions and was not given the opportunity to cross-examine the respondent's representative in relation to this "new evidence". If these assertions are well-based, they may constitute a denial of procedural fairness. 2. However, we are not satisfied that there was any such denial of procedural fairness. Firstly, the Tribunal is not bound by the rules of evidence and "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice": s 38(2) of the NCAT Act. In making a decision, the Tribunal may therefore take into account material put for the first time during closing submissions, as long as the other party is given an opportunity to respond to that material, assuming it is material relevant to the Tribunal's decision. 3. At the hearing, the appellant told the Appeal Panel that the "new oral evidence" to which the Notice of Appeal refers was the assertion made by the respondent's representative that most of the access road to the premises - which in the appellant's application to the Tribunal he claimed the respondent had an obligation to maintain and repair - belongs to the local Council. At the hearing before the Appeal Panel, the appellant did not deny that at least part of the road belonged to the Council. In any event, we do not consider that the respondent's representative's evidence in this regard was particularly relevant to the Tribunal's ultimate decision. 4. Secondly, the appellant did not tender a transcript or the sound recording of the hearing. In these circumstances, the Appeal Panel is not satisfied that the appellant was unable to question the respondent's representative, including about any new evidence. We note that during the appeal hearing, Mr Grant denied that the appellant was prevented from doing so. 5. Overall, we are not satisfied that the appellant has demonstrated any lack of procedural fairness in the conduct of the hearing. The Notice of Appeal does not disclose any other potential question of law and none is apparent to the Appeal Panel based either on the written material or on the submissions made during the hearing. 6. Turning to the clause 12 Schedule 4 grounds of appeal, we conclude that the appellant's assertion that the decision was not fair and equitable and against the weight of the evidence is based on the Tribunal having preferred the evidence of the respondent to his evidence. The Tribunal's reasons for decision do not suggest that the Tribunal did not take the appellant's evidence into account. In these circumstances, we are not satisfied that the appellant has demonstrated either that the Tribunal's decision is not fair and equitable or that it is against the weight of the evidence. 7. In relation to the appellant's assertion that significant new evidence is now available that was not reasonably available at the time of the hearing, the appellant confirmed that this new evidence consists of photographs taken after he received the Tribunal's reasons for decision. We are not satisfied that this evidence is "new" in the manner contemplated by clause 12(c). Had the appellant wished to obtain photographs to support his case, he could have done so prior to the Tribunal hearing. 8. We conclude that the appellant has neither established that a question of law arises on the appeal, nor that any of the clause 12 Schedule 4 grounds apply. We are not satisfied that the appellant has been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved: Collins v Urban [2014] NSWCATAP 17 at [77]. In those circumstances it is highly unlikely that the Appeal Panel would be satisfied that the appellant may have suffered a substantial miscarriage of justice. We have determined not to grant an extension of time for this reason. Conclusion 1. We have decided not to extend the time for filing the appeal and have dismissed the appeal because we are not satisfied that it has any realistic prospect of success. As noted above, the orders sought on the appeal indicate that the appellant does not dispute that he owes rent arrears in the sum of $1671.54. The stay order has accordingly been lifted. During the hearing the appellant told the Appeal Panel that he could not afford to pay the rent arrears. Whether the respondent takes proceedings to enforce the money order made by the Tribunal is a matter for the respondent. ********** 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: 30 March 2015