Drain v. Eagle Auto Parts Pty Ltd [2015] NSWCATAP 109

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Drain v. Eagle Auto Parts Pty Ltd [2015] NSWCATAP 109 Hearing dates: 10 February 2015 Date of orders: 17 June 2015 Decision date: 17 June 2015 Jurisdiction: Appeal Panel Before: P.M. Wass SC, Senior Member S. Thode, Senior Member Decision: The application for an extension of time in which to appeal is refused. The appeal is dismissed. Catchwords: APPEAL - Civil and Administrative Tribunal (NSW) – application for extension of time in which to appeal – exercise of discretion – application for leave to appeal refused - appeal dismissed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) NCAT Interim Rules 2014 (NSW) Category: Principal judgment Parties: Andrew John Drain (Appellant) Eagle Auto Parts Pty Ltd (Respondent) Representation: Mr Drain in his personal capacity

Mr Loftus for the respondent File Number(s): AP 14/46504 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2014] NCAT Date of Decision: 16 July 2014 Before: D Moss, General Member File Number(s): MV 14/08500

REASONS FOR DECISION

Introduction 1. The appellant has sought to appeal from a decision of the Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal ("the Tribunal") made on 16 July 2014. 2. Before the Tribunal below the appellant alleged that a motor supplied to him by the respondent was not fit for purpose as the engine failed. It was alleged by the appellant that the engine failed due to inadequate bearing clearance on the assembly and that it failed after only 223km. 3. Section 40 of the Civil and Administrative Tribunal Act ("the Act") provides that any appeal is to be made within the time prescribed by the Act. 4. The Civil and Administrative Tribunal Regulation 2014, Regulation 24 provides that the appeal must be filed within 28 days from the day on which the appellant was notified of the decision. 5. The appellant's Notice to Appeal was filed on 8 September 2014 and is therefore out of time. The Notice of Appeal does not, however seek and extension of time and provides no material to the Appeal Panel as to the reasons why the appeal was filed out of time. Regardless of his failure to tick the appropriate box on the Notice of Appeal, the appellant submitted that he does seek an extension of time and the appeal panel proceeded on that basis. 6. The appellant was on notice that his appeal is out of time by the Reply to Appeal filed by the respondent on 14 November 2014. Part 11 of the Notice of Reply to Appeal states that the respondent does not accept that the appeal was lodged within time, that the appellant received notice of the decision on 21 July 2014 and, as such filed his appeal approximately 48 days after the date upon which he was aware of the decision. The appellant by his Notice of Appeal accepts that he received notice of the decision on 21 July 2014. 7. Accordingly the appeal is filed out of time and the appellant was put on notice by the Reply to Appeal that this was a live issue raised by the respondent. Regardless, the appellant has provided no explanation for the 24 day delay in filing the Notice of Appeal. 8. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel considered the principles which govern the granting of an extension of time. 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 considers that this is a case, in accordance with the principles as set out in paragraph [22][4] above, in which it is appropriate to go further into the merits of the appeal as the explanation for the delay "is less than satisfactory". Before the appeal proper can be determined the Appeal Panel must first decide whether the extension of time should be granted. 2. The Appeal Panel is further constrained by the provisions of Clause 12 of Schedule 4 of the Act. Clause 12(1) of Schedule 4 of the Act provides that the Appeal Panel may only grant leave under section s80(2) of the Act if it is satisfied that the appellant may have suffered a substantial miscarriage of justice on one or more of three grounds, namely 1. That the decision of the Tribunal under appeal was not fair and equitable 2. That the decision of the Tribunal under appeal was against the weight of the evidence, or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).