Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Harmony Stone Gallery Pty Ltd v Ajuria [2017] NSWCATAP 80 Hearing dates: 31 March 2017 Date of orders: 06 April 2017 Decision date: 06 April 2017 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member R Titterton, Senior Member Decision: 1. Time to appeal is extended up to and including 10 January 2017. 2. Leave to admit fresh evidence is refused. 3. Appeal dismissed. Catchwords: Application to extend the time for the filing of a notice of appeal – leave granted – no question of principle Proceedings heard and determined in absence of appellant/respondent – where respondent sought adjournment on basis of illness – no medical evidence provided – no error by Tribunal in proceeding in respondent's absence Cases Cited: Bobolas v Waverley Council [2016] NSWCA 139 House v The King (1936) 55 CLR 499; HCA 40 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Kostov v Zhang [2016] NSWCA 262 NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 Sali v SPC Ltd (1993) 67 ALJR 841; (1993) HCA 47 Squire v Rogers (1979) 39 FLR 106; [1979] FCA 95 Category: Principal judgment Parties: Harmony Stone Gallery Pty Ltd (Appellant) Lillian Ajuria (First Respondent) Aidan Kinsella (Second Respondent) Representation: V Nouri (Appellant) In Person (First and Second Respondent) File Number(s): AP 17/00693 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 30 November 2016 Before: C Campbell, General Member File Number(s): GEN 16/49337 REASONS FOR DECISION 1. This is an application to extend time to appeal and, if leave is granted, to appeal from a decision of the Tribunal given on 30 November 2016. 2. On that date, the Tribunal ordered that the appellant pay to the respondents $10,596 as a refund of monies paid by the respondents to the appellant for the supply and installation of nine stone panels, and costs associated with the removal of three of those panels, re-waterproofing and screeding of a bathroom floor. 3. For the reasons that follow, the application for an extension of time is granted, but the appeal is dismissed. Background and Procedural History 1. The hearing before the Tribunal took place on 30 November 2016. Oral reasons for the Tribunal's decision were given that same day. For reasons more fully set out later in these reasons, there was no appearance on behalf of the appellant at that hearing. 2. At that time, and now, the appellant had two directors, being Mr Vahid Nouri (who appeared on behalf of the appellant on the appeal) and Mr Ritchie Hayward. 3. On 29 November 2016, Mr Nouri said he fell ill. 4. At 2.37 pm on 29 November 2016, an email from Mr Nouri's email address was sent to the Tribunal saying that Mr Nouri had "not been feeling well and will not be able to attend" the hearing. It went on to say that he would be seeking medical advice the following day and could (then) provide a medical certificate. 5. At 3.24 pm on 29 November 2016, the Tribunal replied to Mr Nouri's email. The Tribunal said that the appellant's application for an adjournment would be given to the Member hearing the case the following day, and it would be up to that Member whether an adjournment would be granted. The Tribunal said that Mr Nouri's medical certificate could be faxed to a number provided in the email. The email went on to say that it was in the parties' best interests to still attend the hearing. 6. Mr Nouri says he lived alone at the time, and had his son come to his home and drive him to his general practitioner. Mr Nouri said he obtained a medical certificate from Dr Maria Bastas that day. That medical certificate stated: "This is to certify that I examined Vahid Nouri on Tuesday, 29 November 2016. In my opinion he is suffering from VIRAL GASTROENTERITIS. He will be unfit for work from Tuesday, 29 November 2016 to Friday, 2 December 2016." [Emphasis hers] 1. That medical certificate was not faxed, emailed or otherwise sent to the Tribunal that day, or the next day, being the date for hearing. 2. The Tribunal's reasons for decision given on 30 November 2016 were delivered orally. The appellant did not request that the Tribunal provide a written statement of its reasons. The appellant did not provide the sound recording of the hearing at first instance (which would have recorded the Tribunal's oral reasons) to the Appeal Panel despite being directed to do so on 7 February 2016 (at which Mr Nouri was present). 3. Ms Ajuira and Mr Kinsella had attended the hearing on 30 November 2016. They informed us that the Tribunal said that it had received an email from Mr Nouri to the effect that he was too ill to attend the hearing. No adjournment of the hearing was granted to the appellant. 4. The appellant said it received notice of the Tribunal's decision on 30 November 2016. 5. The appellant said that it filed an application to set aside that decision on or about 5 December 2016. It was at this stage that Mr Nouri says that the medical certificate was first sent to the Tribunal. The application to set aside the Tribunal's decision of 30 November 2016 was dismissed on 13 December 2016. 6. The appellant says it then sent to the Tribunal, on 14 December 2016, an email explaining why Mr Hayward was incapable of representing the appellant at the hearing before the Tribunal on 30 November. 7. By letter dated 16 December 2016, the Tribunal informed the appellant that it had received its application/letter concerning the Tribunal's orders made on 13 December 2016 (presumably dismissing the appellant's application to set aside the orders made on 30 November). General reference was then made to the fact that time limits apply to applications, and a general reference was made to appeals. 8. Mr Nouri says that he telephoned the Tribunal on 16 December, was told that appeals were required to be filed within 28 days of the date of "the letter", and that he took this to mean the letter from the Tribunal of 16 December 2016 (and not the document informing him of the Tribunal's decision of 30 November 2016). 9. The Notice of Appeal was filed on 10 January 2016, more than 28 days after 30 November 2016 (allowing for days the Tribunal Registry was closed) but less than 28 Days after 16 December 2016. 10. On 27 February 2017, the appellant filed with the Tribunal: 1. a statutory declaration of Mr Nouri to the effect that he was aware that Mr Hayward suffered from various medical difficulties, and that he and Mr Hayward had agreed that Mr Nouri would represent the "external affairs" of the appellant; 2. a statutory declaration of Mr Hayward describing his medical difficulties and confirming the agreement with Mr Nouri referred to above; 3. various copies of newspaper articles referring to events said to have given rise to Mr Hayward's medical difficulties; 4. various treatment records from Manly Hospital referring to various attendances of Mr Hayward at the Hospital and dated 20 May 2010, 11 May 2011 and 21 January 2016. Extension of Time to Appeal 1. The considerations relevant to an extension of time to appeal were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18] – [22]. They need not be repeated here. 2. The appellant says that it misunderstood the Tribunal in the telephone conversation of 16 December 2016 and thought the 28 days for filing the Notice of Appeal ran from 16 December rather than 30 November 2016. 3. The respondents opposed the application for an extension of time. They said such confusion on behalf of the appellant is unlikely given the time limitation for filing Notices of Appeal are on the Tribunal's website (Mr Nouri acknowledged that he read the Tribunal's Guideline 1: Internal Appeals which says that appeals must be filed within 28 days of when the appellant was notified of the decision appealed against, or was given reasons for the decision, whichever is the later). 4. The length of the delay in filing the Notice of Appeal is small. The reason for the delay has been provided, and although not very compelling, has some substance. There is no relevant prejudice to the respondents. In the circumstances, we consider an extension of time to file the Notice of Appeal is warranted and so order. Grounds of Appeal 1. The appellant says that the Tribunal erred in holding that it could have been represented by Mr Hayward at the hearing, as Mr Hayward suffered from various medical difficulties which would have prevented him adequately representing the company, Mr Nouri himself was sick, and there was no individual who held the capacity to represent the interests of the appellant at the hearing. Mr Nouri submits that the Tribunal erred in proceeding in his absence. 2. In substance, the appellant submits that the Tribunal erred in failing to grant an adjournment of the hearing. Mr Nouri told the Appeal Panel that this was the only error that he could identify in the Tribunal's consideration of the application and conduct of the hearing. 3. The principles governing appellate review of a trial judge's refusal to grant an adjournment are well established. The same principles apply in the Tribunal. 4. The refusal of an adjournment is discretionary and the principles governing the review of discretionary judgments applies to appellate review of a refusal to grant an adjournment. [1] An appellate court (or Appeal Panel) will be slow to interfere with the discretion of a trial judge (or Tribunal) to refuse an adjournment. [2] It will generally only do so when: [3] "the exercise ... of discretion has miscarried in the sense that that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material ... This general rule is subject to any power of the particular appellate court to receive new evidence on the hearing of an appeal... and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion." 1. To succeed in a challenge to such an exercise of discretion, the applicant must demonstrate that the Tribunal: [4] 1. made an error of legal principle; 2. made a material error of fact; 3. took into account some irrelevant consideration; 4. failed to take into account a relevant consideration; or 5. arrived at a result so unreasonable or unjust as to suggest such an error even though the error did not appear on the face of the reasoning. 1. The question whether the Tribunal fell into such an error is a question of law. 2. Further, the appellant seeks leave to adduce fresh evidence, being the medical certificate, statutory declarations, newspaper articles and treatment records referred to earlier. Consideration 1. We are not persuaded that the Tribunal's refusal of the adjournment was affected by any error of principle, material error of fact, irrelevant consideration, failure to take into account a relevant consideration or was so unreasonable a result as to suggest error. 2. All that the appellant put before the Tribunal was Mr Nouri's email dated 29 November 2016. It simply asserted Mr Nouri was ill, but did not include any evidence to that effect. It was apparently taken into account, and no other material has been identified by the appellant which was available to the Tribunal and not taken into account. 3. The appellant says the Tribunal did not take into account a relevant consideration, being Mr Hayward's alleged incapacity to represent the appellant. But no material of any kind was provided to the Tribunal on that topic, nor did Mr Nouri's email of 29 November 2016 mention this alleged incapacity. 4. The appellant has not identified any irrelevant material which was taken into account by the Tribunal, nor any error of principle. 5. Nor are we persuaded that the refusal of the adjournment was so unreasonable or unjust as to suggest such an error. First, given the material the appellant provided to the Tribunal, no unreasonableness is apparent. Second, no evidence has been sought to be led by the appellant on this appeal which might establish that it had some bona fide defence to the respondents' application. Third, the fresh evidence which was sought to be tendered on the appeal, even if admitted by us, would not, even in hindsight, have established any error. 6. The appellant did not forward (by fax, email or other means) the medical certificate obtained by Mr Nouri. Mr Nouri says he was too unwell to do so, an explanation unsupported by any corroborative evidence (at the time, or now) and at odds with the fact Mr Nouri was well enough to attend his doctor, and had his son available to assist him. Mr Nouri had the certificate and could readily have copied or taken a photograph of it and emailed it to the Tribunal, or have asked his son to do so on his behalf. 7. Even had that medical certificate been forwarded to the Tribunal, it was of no weight. It said that Mr Nouri was ill and unable to attend work, but there was no evidence of what work it was that Mr Nouri was unable to do and which may have allowed a comparison to be made with the demands to travel to the Tribunal and participate in the hearing. 8. In Bobolas v Waverley Council [2016] NSWCA 139 McColl JA, with whom Simpson JA and Sackville AJA agreed, citing NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 (at [6]) per Lindgren J, said at [221]: "A medical certificate relied upon to demonstrate a litigant is unable to attend court must address the 'critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing'". 1. The medical certificate, although saying Mr Nouri was unfit for (unspecified) work, did not address whether Mr Nouri's illness would prevent him travelling to the Tribunal and participating effectively in the hearing, and if so, why. 2. No evidence was provided to the Tribunal of Mr Hayward's asserted incapacity to represent the company. Mr Hayward did not attend the Tribunal on 30 November to give oral evidence of his incapacity to represent the appellant (and the appellant provided no explanation why this was not done), or to provide such documentary material as he may have had to corroborate any such assertion. 3. Assuming that the material now relied upon by the appellant had been before the Tribunal, it does not establish any such incapacity. Assuming Mr Hayward had suffered the misadventure referred to in the newspaper articles, the treatment records are limited to complaints of headache in 2010, a cough and dizziness in 2011, and a nose bleed in 2016. 4. Thus, even if this new evidence had been received by us, it would not have established, even in hindsight, that the exercise of discretion by the Tribunal miscarried. 5. Accordingly, we refuse the application to lead fresh evidence, and we dismiss the appeal. Endnotes 1. See House v The King (1936) 55 CLR 499; HCA 40. 2. Sali v SPC Ltd (1993) 67 ALJR 841; HCA 47 at 628. 3. Squire v Rogers (1979) 39 FLR 106; FCA 95 per Deane J, with whom Forster and Brennan JJ agreed, at [12]. 4. Kostov v Zhang [2016] NSWCA 262 per Meagher and Payne JJA at [33]. 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: 06 April 2017