Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chamma v Director General, NSW Fair Trading [2015] NSWCATOD 69 Hearing dates: On the papers Decision date: 09 July 2015 Jurisdiction: Occupational Division Before: K Rosser, Senior Member Decision: 1. The application to extend time to make an application to set aside the decision made by the Tribunal on 4 May 2015 is dismissed. 2. The Tribunal declines to reinstate the application pursuant to s 55(2) of the Civil and Administrative Tribunal Act 2013. Catchwords: Set aside application out of time; No reasonable explanation for failure to appear; Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Regulation 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: Solicitors: Ramy Chamma (Applicant) H Williams, NSW Fair Trading (Respondent) Representation: Solicitors: R Chamma (Applicant in person) NSW Fair Trading (Respondent) File Number(s): 1520013 Reasons for decision Background 1. Mr Chamma applied for review of a decision made by the Director General, NSW Fair Trading. His application for review was listed for hearing on 4 May 2015. A Registry officer contacted Mr Coluccio, the solicitor on the record for Mr Chamma. He advised that he no longer represented Mr Chamma and stated that Mr Chamma was aware of the hearing. An attempt was made to contact Mr Chamma by phone, but this was unsuccessful. Mr Chamma's application for review was consequently dismissed for failure to appear pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). 2. Mr Chamma applied for the Tribunal's order dismissing his application to be set aside under Reg 9(1) of the Civil and Administrative Tribunal Regulation 2013 (the Regulation). For the reasons set out below, the Tribunal has determined not to extend time for making this application. The Tribunal has also decided not to reinstate the application under s 55(2) of the NCAT Act because it does not consider that Mr Chamma had a reasonable explanation for failing to appear at the hearing. Set aside application 1. Mr Chamma signed an Application to Set Aside or vary a Tribunal Decision on 11 May 2015. As noted above, the application was made under Reg 9(b) of the Regulation. Pursuant to Reg 9, the Tribunal has the power to set aside or vary a Tribunal decision if the decision was made in a party's absence and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. 2. The set aside application was filed on 15 May 2015. In an attachment to the application, Mr Chamma explains his failure to appear at the hearing on 4 May by stating that he had "previous gone into surgery" and "was on high dosages of medication". He also claims that there was a "slight misunderstanding" with his legal representative and he thought that the hearing was on 4 June. 3. Mr Chamma did not provide any evidence in support of his assertions, even though the general information set out at part 12 of the application form states that applicants should attach all documents and material relied on in support of the application. Applicants are also advised that a medical certificate should be provided if the failure to attend was because of illness. Respondent's submission 1. The respondent was notified of Mr Chamma's application and given an opportunity to make a submission. A submission was received from the respondent on 16 June 2015. The respondent did not specifically address the requirements of Reg 9. Instead, the respondent's submission focused on whether the applicant had a reasonable explanation for his failure appear at the hearing. Consideration 1. If the applicant did have a reasonable explanation for his failure to appear, the Tribunal could reinstate the application pursuant to s 55(2) of the NCAT Act. 2. Accordingly, the Tribunal has considered both whether to set aside the order pursuant to Reg 9 of the Regulation and whether to reinstate the application pursuant to s 55(2) of the NCAT Act. I am satisfied that the parties have had an opportunity to make submissions and that it is appropriate to dispense with a hearing in accordance with s 50(2) of the NCAT Act. Reg 9 1. Reg 9(3) states: Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made. 1. Mr Chamma's application was filed on 15 May 2015, which is more than seven days after the decision was made. The order made by the Tribunal therefore cannot be set aside unless time for making the application is extended under s 41 of the Act. The Tribunal therefore considered whether time should be extended. Extension of time 1. The Appeal Panel considered the factors relevant to a decision whether to extend time to make an application in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. These factors are: 1. The length of the delay; 2. The reasons for the delay; 3. The merits of the case and 4. Any prejudice to the other party. 1. In this case, the delay is relatively short, being only four days. Mr Chamma acknowledged that an extension of time was required when completing Part 9 of the application form, which states that the applicant must explain why the application was not lodged within the time limit. In this part of the application form, Mr Chamma states that he requires an extension of time because he is confident that the result would have been different had he attended the hearing. However, he has provided no explanation for his failure to lodge the set aside application within time. 2. In relation to the merits of the case, while Mr Chamma claims that the outcome would have been different had he been in attendance at the hearing, he has provided no material from which it can be concluded that he has a reasonably arguable case. In relation to this, Mr Chamma chose not to file any material in support of the substantive application. 3. As the respondent did not make any submissions in respect of the set aside application, the Tribunal is not satisfied that the respondent would be prejudiced if time to make the application were extended. However, Mr Chamma's failure to provide any reasons for the delay and the lack of evidence as to the merits of the case lead the Tribunal to conclude that time for making the application should not be extended. Reinstatement 1. There is also a seven day time limit on reinstatement applications: Rule 36 Civil and Administrative Tribunal Rules 2014. However, as the form completed by Mr Chamma did not specifically refer to reinstatement under s 55(2) or to the applicable time limit, the Tribunal has considered the merits of the issue. 2. As noted above, Mr Chamma claims that he was on medication following surgery and that he thought the hearing was on 4 June. However, Mr Chamma has provided no medical evidence to support a conclusion that he was unable to attend the hearing for medical reasons. Nor has Mr Chamma provided any evidence to support a conclusion that the effects of medication would have either prevented his attendance or affected his ability to remember the hearing date. 3. In relation to Mr Chamma's claim that there was a misunderstanding with his solicitor, documents attached to the respondent's submission indicate that Mr Chamma's solicitor Mr Coluccio ceased to act in April 2015. This is confirmed in an email dated 8 April 2015 from Mr Coluccio to Ms Williams from NSW Fair Trading. This email was copied to Mr Chamma and his brother. On the same day, Ms Williams sent an email to Mr Chamma and to his brother. This email states, amongst other things: I take this opportunity to remind you that the above matter is listed for hearing on Monday 4th May 2015 at 2pm ….. 1. In view of this email correspondence, the Tribunal is satisfied that Mr Chamma was aware that the hearing was on 4 May. The Tribunal is not satisfied that Mr Chamma understood that the hearing was on 4 June. 2. Overall, the Tribunal does not consider that there is a reasonable explanation for Mr Chamma's failure to appear at the hearing on 4 May 2015. The Tribunal accordingly declines to make an order reinstating the application pursuant to s 55(2) of the NCAT Act. 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: 09 July 2015