Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dusanovski v Xiao [2015] NSWCATAP 254 Hearing dates: 23 November 2015 Date of orders: 30 November 2015 Decision date: 30 November 2015 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President T Simon, Senior Member Decision: 1. Application to lodge the appeal out of time is refused. 2. Appeal dismissed. Catchwords: APPEAL – out of time – reasonable explanation for delay but no prospects of success Legislation Cited: Civil and Administrative Tribunal Rules 2014, r 25(4)(b) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Texts Cited: Aronson, Dyer and Groves, Judicial Review of Administrative Action, (5th ed 2013 LawBook Co) at 397 Category: Principal judgment Parties: Douglas Dusanovski (First Appellant) Kate Dusanovski (Second Appellant) Ting Ting Xiao (First Respondent) Peng Li (Second Respondent Representation: First and Second Appellants (self-represented) M Smith, agent (Respondents) File Number(s): AP 15/45517 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 15 June 2015 Before: G Meadows, Senior Member File Number(s): RT 15/28169 reasons for decision Introduction 1. Tenants, Mr and Ms Dusanovski, have appealed against a decision that they pay their landlords, Ting Ting Xiao and Peng Li, $3203.00. The Tribunal made the order to compensate the landlords for having to replace carpet to the value of $3060.00 and a mesh screen door to the value of $143.00. There is no longer any dispute about the mesh screen door but the tenants claim that they should not be liable for the full cost of replacing the carpet. In their view the maximum they should have to pay is between $500 and $1000. 2. This is the fifth time this dispute has been the subject of proceedings in the Tribunal. 3. The landlords' first application was dismissed without a hearing on 11 May 2015 because they did not attend. The landlords then filed a new application which was heard and determined in the absence of the tenants on 15 June 2015. That is the decision from which the tenants have appealed but before appealing they lodged both a 'set aside' application and a fresh application in the Consumer and Commercial Division. Both were dismissed. Appeal lodged out of time 1. Because the proceedings are "residential proceedings," an appeal must be lodged 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: Civil and Administrative Tribunal Rules 2014, r 25(4)(b). The Tribunal made its decision on 15 June 2014 and the tenants were advised of the decision on that day. The appeal was filed on 30 July 2015, 30 days out of time. 2. The time for lodging an appeal may be extended even though the time has expired: Civil and Administrative Tribunal Act 2013 (NSW), (NCAT Act), s 41. The Appeal Panel set out the principles to be applied when considering an application for an extension of time in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 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]. Length of delay and reasons for delay 1. The length of the delay is 30 days. That is a relatively long period of time given that the general rule is that an appeal in relation to tenancy proceedings is to be lodged within 14 days. However, during that time the tenants lodged both a 'set aside' application pursuant to cl 9(2) of the Civil and Administrative Tribunal Regulation 2013 (NSW) and a fresh application. 2. After being advised that the set aside application had been unsuccessful, the tenants say that they attempted to contact the Tenants Advice Line and the Western Sydney Tenancy Service on several occasions. When they had no response they phoned NSW Fair Trading. The tenants said that their advice was to make a fresh application to the Tribunal. They lodged that application on 16 July 2015 and the matter was heard on 27 July 2015. The Tribunal dismissed the application because the issue had already been determined on a previous occasion. The tenants were advised at that hearing that they should have appealed from the 15 June 2015 decision immediately and not made a fresh application. They lodged the appeal on 30 July 2015. 3. According to the tenants they have actively been trying to have the matter reheard in a manner that is fair and reasonable to both parties but have been given incorrect advice. In those circumstances they believe that they should be given an extension of time to appeal. The landlords submitted that the tenants chose to lodge a set aside application rather than an appeal and they should not be given any further opportunity to have the matter re-considered. Merits of the appeal 1. After the landlords lodged their second application, the matter was listed on 11 May 2015. Both parties attended on that date and the Tribunal directed that the tenants lodge their evidence and provide a copy to the landlords by 25 May 2015 and that the landlords lodge their evidence and provide a copy to the tenants by 8 June 2015. The landlords complied with the directions. The tenants did not. 2. On the morning of the hearing the tenants telephoned the Registry to apply for an adjournment. They were directed to make that application in writing and sent an email at about 9.30 am. They did not hear back from the Tribunal and said that they assumed that the hearing had been cancelled. They said that that was an honest mistake. 3. The Tribunal considered the application for an adjournment. The reasons given in support of that application were that Mr Dusanovski had been called away on urgent business on two occasions in May and that they were unable to comply with the directions to serve their evidence by 25 May 2015. Another reason for not attending the hearing was that it was Ms Dusanovski's birthday and she had tickets to an event which could only be used that day. The Tribunal did not accept these or any of the other explanation the tenants gave as providing sufficient justification to grant an adjournment. The Tribunal took into account the fact that the tenants had not complied with the directions and had not applied for an adjournment until the morning of the hearing. 4. The Tribunal accepted the evidence from the landlords that the carpet was so damaged that it could not be repaired and that the mesh screen door needed to be replaced. The Tribunal found that the landlords had proved their case. 5. The appeal is against the decision made on 15 June 2015, not against the 'set aside' decision made on 10 July 2015. Consequently we have not taken into account the tenants' submission that the Tribunal hearing the set-aside application ignored a medical certificate which had been provided. We have not taken into account any of the grounds of appeal that relate to other irrelevant matters including the enforcement of the Tribunal's order. 6. The tenants are entitled to appeal on a question of law but must obtain the Appeal Panel's leave before appealing on other grounds: NCAT Act, s 80(2)(b). In relation to appeals from the Consumer and Commercial Division, leave to appeal on grounds other than a question of law can only be granted in the limited circumstances set out in Schedule 4, cl 12 to the NCAT Act: (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice 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. One possible question of law raised by the Notice of Appeal is that the Tribunal breached the rules of procedural fairness by refusing to grant an adjournment. Section 38(2) provides that: 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. 1. The Tribunal is also required to ". . . take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings." NCAT Act, s 38(5)(c). 2. The rules of procedural fairness require that a person be afforded a fair and unbiased hearing before decisions are taken which affect them: Aronson, Dyer and Groves, Judicial Review of Administrative Action, (5th ed 2013 LawBook Co) at 397. In particular the hearing rule, which is an element of procedural fairness, requires that a decision-maker hear a person before making a decision affecting their interests. McHugh J spoke generally of this rule in Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [101]: One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding (Mahon v Air New Zealand Ltd [1983] UKPC 29; [1984] AC 808 at 820-821.) 1. The content of the hearing rule must be "appropriate and adapted to the circumstances of the particular case": Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J at 585. 2. In this case the tenants had notice of the hearing and of the directions that they provide their evidence by 25 May 2015. At the appeal hearing Ms Dusanovski said that they knew they had to file the evidence but thought it would be acceptable to bring it on the day of the hearing. They submitted that their failure to understand and comply with the Tribunal's processes should not prevent them from receiving a fair hearing. They also assumed that the application for an adjournment would be granted. 3. There has been no breach of procedural fairness in this case. The tenants were on notice of the hearing and of the directions to provide their evidence in advance. They failed to comply with that direction nor did they seek an extension of time in which to comply. By way of explanation the tenants say that Mr Dusanovski's business was undertaking a major telecommunications project which required him to work in excess of 100 hours per week. The excuse that they were too busy, unprepared, or not able for any other reason to attend the hearing does not explain why they did not seek an extension of time to provide their evidence. There is no basis for their assumption that they could bring their evidence on the day of the hearing or that an application for an adjournment on the morning of the hearing would be granted. 4. In relation to the appeal on questions other than a question of law, the tenants relied on the same grounds to submit that the decision was not fair and equitable. The reason it was not fair and equitable was said to be that the Tribunal did not have any of their evidence nor were they present at the hearing. They admit that this was a mistake but say that it was an honest mistake. The tenants say that they now feel they have more time and space to contribute to the case and put the evidence forward. 5. The Tribunal gave clear and unequivocal directions as to what was expected. There is no substantial miscarriage of justice in circumstances the tenants did not comply with directions, did not seek an extension of time to comply with those directions, did not apply for an adjournment until the morning of the hearing and did not have a reasonable excuse for not attending the hearing. Prejudice to the landlord 1. Since the decision was made on 15 June 2015, the landlords have incurred further expense defending an application to set aside that decision and a fresh application lodged by the tenant. However, there is no particular prejudice to the landlord if the appeal is accepted out of time because the merits of the appeal were argued in full at the same time. Conclusion 1. The tenants were active in seeking to have the decision made on 15 June 2015 re-visited. The delay in lodging the appeal was as a result of two failed attempts to have the merits of their defence considered. We are satisfied that the tenants have a reasonable explanation for not appealing within time and there is no particular prejudice to the landlords in accepting the late appeal. However, we have decided not to accept the appeal because the appeal itself is without merit. Justice requires that a party be given a reasonable opportunity to present his or her case. We are satisfied that the tenants were given that opportunity in this case but they failed to take advantage of it. Order 1. Application to lodge the appeal out of time is refused. 2. Appeal 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: 30 November 2015