Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Donna O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 Hearing dates: 17 April 2015 Date of orders: 17 April 2015 Decision date: 07 May 2015 Jurisdiction: Appeal Panel Before: Dr J Renwick SC, Senior Member and S Thode, Senior Member Decision: The Appellant's application for an adjournment is refused. The Appeal is dismissed. The stay ordered on 6 March 2015 in matter MV 14/01816 is lifted. Noted: The orders made in MV 14/01816 on 27 June 2014 remain in full force and effect. Catchwords: APPEAL – adjournment application refused – appeal dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 Sayhoun v Owners Corporation Strata Plan 75123 [2014] NSWCATAP 112 Texts Cited: None Category: Principal judgment Parties: Appellant - T and I Engines Pty Ltd Respondent – Donna O'Neill Representation: Mr Booy for the Appellant in his capacity as a director of the Appellant The Respondent in person File Number(s): AP 14/46479 Publication restriction: None Decision under appeal Court or tribunal: NCAT Consumer and Commercial Division Citation: Donna O'Neill v T and I Engines Pty Ltd Date of Decision: 27 June 2014 Before: G.Sarginson General Member File Number(s): MV 14/01816 REASONS FOR DECISION INTRODUCTION 1. On 17 April 2015 the Appeal was listed for hearing. When the Appellant's application for an adjournment was refused, the Appeal went ahead, however the Appellant had neither written nor oral submissions to make, nor any material filed in support of the Appeal. The Appeal was dismissed. We now provide our reasons for making those orders. 2. The Appeal was brought against the decision made in Matter MV 14/01816 which was heard by the Tribunal on 27 June 2014, the Tribunal ordering that the Appellant pay to the Respondent the sum of $12,871.57. 3. The Appellant filed a Notice of Appeal dated 21 July 2014. A stay was later ordered. 4. The Appellant appeared at a directions hearing on 5 March 2014 and was ordered to file and serve submissions and any outline of written arguments and material to be relied upon by no later than 26 March 2013. 5. The standard direction issued at the Appeal callover was printed and sent to the Appellant, namely: "if a party wants to rely on any material on the Tribunal file from the original hearing or a sound recording or transcript of that hearing or any other material, the party must ensure that this material is filed and served in accordance with the directions of the Tribunal set out above. If the material is not filed and served in accordance with those directions the party may not be allowed to rely on that material at the hearing of the Appeal." (emphasis added) 6. Contrary to the directions issued by the Appeal Panel, the Appellant filed no material or submissions at all. Instead, on 15 April 2015, three days before the allocated hearing date, the Appellant sought an adjournment by email addressed to the Appeal Panel in the following terms: "the above hearing is scheduled for the 17 April 2015. As outlined in the application there is conflicting evidence given at the original hearing on 19 May 2014. To enable us to present our case we applied for and paid $24 for a copy of the sound recording. This application was made on 18 March 2015. At this time we have not received a sound recording. As it is an essential part of our case we would respectfully ask that the Appeal be heard on a later date once the sound recording has been received and we have had the opportunity to evaluate and prepare our case." 7. A copy of this email was not provided to the Respondent prior to the hearing. She was taken by surprise by the adjournment application. She opposed it and gave evidence from the bar table, without demur from the Appellant, as to why she would be considerably prejudiced if the adjournment were granted. Her evidence is set out below. 8. The Appeal Panel invited Mr Booy to make enquiries with the Appellant company whether it would be in a position to pay forthwith the amount outstanding to the Respondent. On such undertaking being given, the Respondent was willing to consent to an adjournment. 9. After a short adjournment, Mr Booy informed the Appeal Panel that he had received legal advice and that there would be no undertaking to pay the outstanding sum. He renewed the adjournment application. We refused it for the following reasons. The adjournment application 1. The Appellant stated in his Notice of Appeal dated 21 July 2014 that he was appealing an order for payment of $12,871 57. 2. The grounds of Appeal were expressed as follows: "conflicting evidence of the second Respondent, the evidence of the second applicant is challenged as in the decision of the Tribunal that he should not have been a party to the proceeding. And we at no time admitted liability even though a second engine was sent as goodwill." 3. Leave to Appeal was also sought on the basis that "evidence was now available that not available at the time of the hearing". 4. Under the heading "what evidence is now available that was not reasonably available at the hearing, what evidence do you now seek to produce to the Tribunal?", the Appellant stated: "evidence linked to the conflicting statements during the hearing". 5. Relevantly, at page 5 of the Notice of Appeal form, the Applicant stated he required an extension of time "as one of the grounds of Appeal is the conflicting evidence given by one of the applicants to enable us to access this we need to have the oral recording available application for the recording is made." 6. The Notice of Appeal was signed on 18 July 2014 and filed on 21 July 2014 by Leopold Booy. 7. The next document under the hand of Mr Booy was the adjournment application dated 14 April 2015, some nine months later, stating that application for transcript was made on 18 March 2015. 8. The Appellant was unable to explain why he had delayed an application for the sound recording and transcript for nine months. He could not explain why an outline of submission was not filed in accordance with directions. He submitted that in the event the adjournment was not granted, and the Appeal proceeded, he would Appeal and seek his remedy 'elsewhere'. 9. The Respondent opposed the adjournment application. She stated that she was disadvantaged by the late application. She had travelled from Campbelltown to the city and was ready to proceed. She had not been informed exactly what the grounds for Appeal were, nor had she been served with any material to inform her of the "inconsistencies" the Appellant relied upon. No outline of submissions was served as was directed by the Appeal Panel. Indeed, no material had been filed at all. In light of the lack of material served on her she was confident that the Appeal would go ahead and she had good prospects of succeeding. 10. On the question of prejudice by reason of the adjournment, the Respondent submitted she is the primary carer and breadwinner for a disabled husband and four dependent children. The order made by the Tribunal should have enabled her to repair her 15-seater bus to continue with her private shuttle bus business. As a stay had been granted, she was unable to afford repairs and was deprived of income. A further delay would significantly prejudice her and her family would continue to lose income. Findings and decision 1. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, a unanimous High Court said: "In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice." 1. That approach is applicable in this Tribunal. Section 36(1) of the Civil and Administrative Tribunal Act 2013 ('the Act') is in relevantly identical terms to s 56(1) of the Civil Procedure Act 2005, the provision considered in the Expense Reduction decision. 2. It follows that a number of principles apply to applications for an adjournment: 1. matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, 2. an application for an adjournment should be seen as the exceptional rather than the ordinary course; 3. where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment 1. Further, there is the effect on the opposing party to consider. In Sayhoun v Owners Corporation Strata Plan 75123 [2014] NSWCATAP 112, an Appeal panel of this Tribunal said at [17], in terms we would adopt: "We are satisfied that the respondent would be prejudiced if an extension of time were granted. That prejudice may be addressed by an award of costs, although we note the remarks of the plurality in Aon Risk Services Aust Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [100] that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants; and their approval (also at [100]) of Bowen LJ's statement in Cropper v Smith [1884] 26 Ch D 700 that: Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary." 1. Applying these principles, we are not satisfied that the adjournment should be granted. 2. The Appellant was aware as early as 21 July 2014 that the sole material he relied upon was the recording of the hearing below. There was no explanation as to why it waited until March 2015 to apply for the transcript. 3. There was no explanation as to why the Tribunal's direction to file submissions or an outline of argument had not been complied with – evidently not all of the Appellant's arguments needed to await the transcript, at least the gist of the arguments could have been put on these and any other grounds relied upon. 4. By themselves these matters meant there should be no adjournment. 5. Further, the prejudice to the Respondent, set out above, was real, unchallenged, and not able to be adequately compensated for by a costs order. 6. Accordingly, we refused the adjournment. 7. The Appeal proceeded and the Appellant who had as noted filed neither material nor submissions, declined to make any oral submissions. 8. There was nothing in the Notice of Appeal itself which justified the granting of the appeal. The appeal was thus dismissed. 9. Accordingly, the Appeal Panel made the following orders: 1. The Appellant's application for an adjournment is refused. 2. The Appeal is dismissed. 3. The stay ordered on 6 March 2015 in matter MV/01816 is lifted. 4. Noted: The orders made in MV 14/01816 on 27 June 2014 remain in full force and effect. ********** 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: 07 May 2015