Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Miriani v Jin [2020] NSWCATAP 75 Hearing dates: On the papers Date of orders: 05 May 2020 Decision date: 05 May 2020 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member J Lonsdale, Senior Member Decision: The application to reinstate the proceedings is dismissed. Catchwords: APPEAL – dismissal of proceedings for non-appearance – whether reasonable explanation for failure to appear Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Magjarraj v Asteron Life Pty Ltd [2009] NSWSC 1433 Wallace v Price [2017] NSWCATAP 151 Category: Principal judgment Parties: Joe Miriani (Appellant) Jin Xiaoqing (Respondent) Representation: Solicitors: Appellant (Self Represented) Respondent (Self Represented) File Number(s): AP 20/13748 Publication restriction: Nil REASONS FOR DECISION Background 1. This is an application to reinstate appeal proceedings (Appeal Proceedings) pursuant to s 55(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). For the reasons set out in this decision, we dismiss the application for reinstatement. 2. The hearing of the Appeal Proceedings was listed for 9 March 2020. The appellant was directed to file and serve an amended notice of appeal by 14 February 2020 and evidence, submissions and other relevant information by 21 February 2020. The appellant did not file an amended notice of appeal or evidence, submissions and other information as directed. 3. The appellant failed to appear at the hearing. On 9 March 2020, the Appeal Panel made the following orders: "1. The Appellant has failed to appear and the proceedings are dismissed – s55(1)(c)." 1. On 17 March 2020, the appellant filed an application to reinstate the Appeal Proceedings. Is the application to reinstate out of time? 1. In the application form, the appellant requested an extension of time for making the reinstatement application. One of the grounds on which the respondent opposed reinstatement of the Appeal Proceedings is that the application was made out of time, which we will deal with as a preliminary issue. 2. Clause 36 of the Civil and Administrative Tribunal Rules 2014 (NSW) (Rules) provides that, unless an extension is granted under s 41 of the NCAT Act, an application to reinstate proceedings that were dismissed under s 55(1)(c) of the NCAT Act must be made within 7 days after the proceedings were dismissed. Clause 6(2) of the Rules provides that where a date is to be reckoned by reference to a given event (such as the event of filing at the Registry) the day of the given event is not to be counted. Taking this into account, and taking 10 March 2020 as the start of the 7 day period after the proceedings were dismissed, the application to reinstate the Appeal Proceedings was made within time. Consideration of the application to reinstate the Appeal Proceedings 1. Relevantly, s 55(1) of the NCAT Act provides: "(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: … (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings …" 1. Section 55(2) of the NCAT Act provides: "(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure." 1. As set out in [3] above, the Appeal Panel dismissed the Appeal Proceedings under s 55(1)(c) of the NCAT Act. The issue then is whether we can be satisfied that there is a reasonable explanation for the appellant's failure to appear at the hearing on 9 March 2020. Appellant's submissions 1. On 6 April 2020, the appellant filed submissions and information in these reinstatement proceedings. However, none of that material is relevant to reinstatement of the Appeal Proceedings under s 55(2) of the NCAT Act. Accordingly, the appellant's case is limited to the information contained in the application form, to which copies of a medical certificate and a medical prescription were attached. 2. The following is set out in the application form as the explanation for the appellant's failure to appear and why the appellant considers the Appeal Proceedings should be reinstated: "I fell ill during the weekend and developed flu-like symptoms with a cough. My doctor prescribed antibiotics for my chest infection after making sure I was not infected with COVID 19." 1. The medical certificate is dated 9 March 2020. The certificate states that the appellant was examined by a doctor and given a diagnosis of "Medical Condition". The certificate also provides that the appellant was "unfit for work 9/3/20 inclusive". 2. The prescription provides that the patient is the appellant and that the prescription was prepared on 9 March 2020. Respondent's submissions 1. The respondent opposes the application for reinstatement and, in summary, makes the following submissions relevant to this matter: 1. The appellant did not file an amended notice of appeal or any submissions, evidence or information in accordance with the directions of the Appeal Panel. 2. The appellant has not given any "reason why [the appellant] can't attend the hearing". 3. The appellant did not inform the Appeal Panel or the respondent of his illness, in circumstances where he has indicated the symptoms arose prior to the hearing. Decision 1. It is clear that the appellant was aware that the hearing had been listed for 9 March 2020. The appellant has not raised any suggestion to the contrary and, in any event, the appellant appeared in person at the time the Appeal Panel listed the Appeal Proceedings for hearing on 9 March 2020. 2. In Magjarraj v Asteron Life Limited [2009] NSWSC 1433, the Supreme Court of NSW stated at [22]: "All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition", culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything." 1. The medical certificate states that the appellant had a "Medical Condition" and was "unfit for work" on the day of the hearing. The medical certificate provided by the appellant does not provide sufficient evidence or information on which we could form a view that the appellant had a reasonable explanation for his failure to appear on 9 March 2020. The medical certificate provides no explanation as to why the medical condition prevented the appellant from appearing at the hearing, which with leave could have been by telephone.. For the same reasons, the prescription provides no relevant evidence or information to assist us. 2. The appellant has provided no explanation as to why he was unable to call or email the Appeal Panel on or before the day of the hearing in circumstances where he was able to attend a medical clinic for an appointment and subsequently go to a pharmacy. 3. The appellant states in the application form that he fell ill "during the weekend". The appellant has provided no explanation as to why he was unable to take any steps to contact the Appeal Panel (for example, by email over the weekend to seek an adjournment or propose other arrangements) when it first appeared that he may not be in a position to appear at the hearing. 4. For the reasons outlined above, we are not satisfied that the appellant has provided a reasonable explanation for his failure to appear on 9 March 2020. 5. As we are not satisfied that the appellant has a reasonable explanation for failing to appear at the hearing, our discretion as to whether we will reinstate the proceedings is not enlivened. Accordingly, it is not necessary to consider the factors that might be relevant to the exercise of the discretion and as set out in Wallace v Price [2017] NSWCATAP 151. However, for completeness, we note that the appellant did not file the submissions and other information that he was directed to file prior to the hearing. It is clear that the appellant had not taken all the steps that he was directed to take to prepare the Appeal Proceedings for hearing and demonstrate that the Tribunal fell into error. On that basis, the appeal had no reasonable prospects of success. Orders 1. The Appeal Panel orders: 1. The application to reinstate the proceedings is 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: 05 May 2020