ALEXIS-NICOLAS TESSIER v TIMOTHY SUTHERLAND and TANYA SUTHERLAND

NCAT Appeal Panel|2014-12-16

INTRODUCTION 1The Appellant is a commercial photographer and was engaged by the Respondents to do photography on their wedding day. The Respondents paid the Appellant $6,472 for the wedding photography package, which included the standard photography, a video with sound, and an album of their chosen favourite photographs from the photographs taken. 2At the Appellant's suggestion the Respondents hired an antique car for use in photographs. This cost $880. 3The Respondents requested the Appellant to stay the night before the wedding at the venue where guests for the wedding would be staying so that he could meet them as preparation for his photography the next day. That cost them $350. 4After the wedding the Respondents complained that Some of the video had no sound; many of the photographs were of poor quality; because the Appellant had arrived at the venue late on the night before the wedding, he had not had the opportunity to meet with any of the guests; and because of the poor quality of the photographs taken with the motor vehicle the expenditure for the motor vehicle was a waste of money. 5The Respondents commenced proceedings in the Consumer, Trader and Tenancy Tribunal, one of the Tribunals that was from 1 January 2014 superseded by the NSW Civil and Administrative Tribunal. They made a claim against the Appellant under the Consumer Claims Act, 1998. The hearing took place on 22 January 2014 in the NSW Civil and Administrative Tribunal and the Tribunal Member delivered the Orders and Reasons on 2 April 2014. 6The Orders of the Tribunal of 2 April 2014 made the following requirements of the parties: 6.1) The Appellant was to provide the DVD's in accordance with the contract with the sound rectified on or before 14 April 2014. 6.2) The Respondents were to advise the Appellant by the close of business on 14 April 2014 as to which 80 to 140 photographs they wished to have included in their wedding album. 6.3) The Appellant was to provide the wedding album to the Respondents on or before 12 May 2014. 6.4) The Appellant was to pay the Respondents the sum of $2,800 in compensation on or before 12 May 2014. 6.5) All other aspects of the Respondents' claim were dismissed. 7The Appellant filed his Notice of Appeal on 30 May 2014. This is the hearing of the Appeal.

THE EVIDENCE 8The evidence before the Appeal Panel is as follows:

Reasons and Orders of the Consumer and Commercial Division dated 2 April 2014;
Letter from Appellant to the Tribunal received by the Tribunal on 30 May 2014;
Notice of Appeal filed 30 May 2014;
The ticket, receipt and itinerary for travel via Emirates Airlines;
Invoice from Tom Psomotragos Photography for report;
CV of Tom Psomotragos;
CTTT Expert Witness Code of Conduct;
Document titled "Reasons for Complaint against Alexis Nicolas Tessier T/A Lumiere";
E-mail of 14 April 2014 from Respondents to Appellants nominating 145 photographs to be included in album;
Document titled "Summary of Monetary Claim against Alexis Nicolas Tessier T/A Lumiere;
Document of 16 June 2014 being submissions and evidence from Respondents to Appeal including formal Reply to Appeal, Attachment 1 - Reply to Grounds,
Respondents' Response to Orders sought by Appellant in Section 11C of Notice of Appeal;
Letter of 21 May 2014 from Tribunal to parties confirming dismissal of Setting Aside Application and Reasons;
Letter of 2 April 2014 from Tribunal to parties notifying of Orders;
Expert's report by Tom Psomotragos;
Directions of President of Tribunal made 11 August 2014;
Letter of 25 August 2014 to Tribunal from Appellant;
Letter to Tribunal on 27 August 2014 from Appellant;
e-mail of 23 September 2014 from Respondents to Tribunal;
Bundle of documents (32 pages) filed by Respondents on 8 September 2014 including submissions and evidence;
Letter from Tribunal of 31 October 2014 providing replacement sound recording (3 disks); and
the 3 discs of sound recording. 9When the matter was referred to the Panel for consideration on the papers, a compact disc was provided, purportedly the sound transcript of the hearing. However, it transpired not to be the relevant recording. The recording was not then received until 4 November. The recording is approximately 3 hours in length, but most of it is unintelligible.

NOTICE OF THE ORDERS AND REASONS 10The Reasons and Orders of the Tribunal are dated 2 April 2014. In the usual course of the Tribunal's practice the Orders and Reasons would have been posted to the parties on 2 April or the next working day. The 2nd April 2014 was a Wednesday. It is a reasonable assumption, in the absence of direct evidence, that the Appellant would have received the Orders and Reasons on or before Tuesday 8 April 2014 at his address in Pitt Street, Sydney. APPELLANT'S SUBSEQUENT CONDUCT 11On 28 April 2014 the Appellant filed an Application to Set Aside or vary the decision. By 6 May the 28 day appeal period expired. No Appeal was filed by then. The Appellant's Application to Set Aside the Orders was heard on 21 May 2014 and was dismissed. 12The Tribunal Member gave as his reasons for refusing the Application: "The Application is dismissed because both parties were present at the hearing. The Tribunal can only consider an application to set aside the Tribunal's decision in circumstances where a party was absent from the hearing or both parties agreed to the orders being set aside." The Application was apparently made under Clause 9 of the Civil and Administrative Tribunal Regulation 2013. It had no merit. 13The Notice of Appeal was filed on 30 May 2014 by the Appellant. It was at least 24 days outside the 28 day appeal period. THE APPEAL IS OUT OF TIME 14The Panel has jurisdiction to entertain internal appeals under s.32 of the Civil and Administrative Tribunal Act 2013 ("the Act"). Section 80 of the Act provides: (1) An appeal against an internally appealabale decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note : Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance-with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance-as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 15Under para 25(4)(c) of the Civil and Administrative Tribunal Rules, 2014, for an internal appeal such as this matter, the appeal is required to be filed with the Tribunal "within 28 days from the day on which the Appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later)". 16The Notice of Appeal was filed at least 24 days outside the 28 day appeal period. APPLICATION FOR EXTENSION OF TIME TO FILE APPEAL 17Section 41 of the Act allows the Tribunal to extend the time for filing an appeal "of its own motion or on application by any person". 18The test of whether such a power should be exercised to extend the statutory time limit is whether there is: "proof that strict compliance with the rules will work an injustice upon the Applicant ..." (per McHugh J in Gallo v Dawson [1990] HCA30). The onus is on the Appellant to prove on the balance of probabilities that if the time for filing the Appeal is not extended by 24 days to 30 May 2014, there will be an injustice to the Appellant. 19The appellant did not have legal representation and completed the Notice of Appeal form himself. He did not seek an order extending the time for the filing of the Notice of Appeal in that document or any other. 20An extensive discussion of the law in this area and the matters a Court or Tribunal should take into account when considering such an application is set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (19 May 2014) at paras 18-22. 21In this matter in considering whether there would be an injustice if the time is not extended as requested, the relevant considerations included: (a) the length of the delay; (b) the reason(s) for the delay; (c) other relevant conduct of the Appellant in the proceedings; (d) the prejudice to the Respondents if leave is granted; (e) when the appellant first became aware of the time for an appeal, (f) what relevant legal advice and representation the appellant had before filing the appeal; and (g) the Appellant's prospects of success in the Appeal.

CONSIDERATION OF WHETHER THE TIME FOR APPEAL SHOULD BE EXTENDED

22The delay was at least 24 days beyond the prescribed period of 28 days. It is a substantial delay. The Appellant knew of the Orders and Reasons by 8 April and did not file his Appeal until 53 days later.

23The Appellant has offered no explanation for any of the delay. c)Other Relevant Conduct of the Appellant in the Proceedings. 24 It should be noted that the Appellant, in addition to his application to set aside the orders, also filed a stay application that was heard and dismissed at the directions hearing on 11 August 2014. Both those Applications appear to have had no merit. 25In addition the President of the Tribunal at that directions hearing made an order for the Appellant to file and serve a fresh Notice of Appeal, an Application for an extension of time in which to file the Appeal and written submissions and other material that he wanted to rely upon in relation to the extension of time application on or before 25 August 2014. 26In the Notice of Appeal the Appellant did not apply for an extension of time to file the Appeal or for leave to file the Appeal. He did not comply with the direction of 11 August 2014 to file a further copy of the Notice of Appeal and an Application for an Extension of Time in which to file the Appeal. He did not file any submission or other material in response to the direction that he do so in relation to his Application for an Extension of Time.

27It is now more than 7 months since the Respondents obtained the Orders made by the Tribunal against the Appellant. The Appellant has repeatedly delayed by filing his unmeritorious application to set aside the orders, by delaying the filing of the Appeal, and by filing his unmeritorious application for a stay of the orders. 28The Appellant has not complied with any of the the Orders although they have remained in force since they were made on 2 April. (d) The prejudice to the respondents if leave is granted 29The protracted litigation since the orders were made is out of proportion to the amount involved in the orders. The Respondents have been subjected to unnecessary delay and unnecessary inconvenience and, no doubt, expense. 30Having obtained the orders in their favour the Respondents have not had the benefit of implementation of any of the orders or payment of any part of the amount the Appellant was ordered to pay; even the amount of $1,450 he proposed in his Notice of Appeal that he should pay. 31Allowing the extension of time for the appeal would occasion further considerable delay and other prejudice to the Respondents. (e) when the appellant first became aware of the time for an appeal 32The appellant has not disclosed when he first became aware that any appeal was required to be filed within 28 days of him receiving the orders and reasons. (f) what relevant legal advice and representation the appellant had before filing the appeal 33The Appellant has not had legal representation on any of the occasions the proceedings were before the tribunal or the appeal has been before the panel or the President for directions. He has not disclosed what legal advice he has had, if any.

(g) the Appellant's prospects of success in the Appeal

34The Grounds of the Appeal are as follows: 35Ground (1) "Unequal treatment by the Tribunal - I was only allowed 12 minutes of talking time out of 3 hours 15 and most of it happened at the end of the hearing only to be stopped because it was to go." From listening to the recording of the hearing the Panel is satisfied that in addition to any time the Appellant had for submissions at the end of the hearing, he also had extensive time during the hearing to make submissions and to answer questions. This Ground was not shown to have any merit. 36Ground (2): "Decision based on corrupted material - being a technical matter the member insisted on the fact that she would review the hearing via the audio recordings prior to taking a decision." "These C D's are inaudible (Attachment #1 of Set Aside Application) therefore she could have based her decision upon the hearing". 37This objection does not attack the findings or orders made by the Tribunal Member and does not take into account the proposition that she would have had available to her her notes of the hearing (including oral evidence) and the documentary evidence at the hearing. This Ground was not shown to have merit. 38Ground (3): "The Member said that there was nothing wrong with the photos (Attachment #2 of the Set Aside Application). What happened during the 3 months it took to receive the decision then? There is no way the Member could have listen to this recordings [sic]." This seems to be a repeat of the earlier Ground. The references to Attachments #1 and #2 are not supported by the relevant documents. The Appellant has not placed them in evidence before us. We are therefore unable to make any finding as to their contents. This Ground was not shown to have merit. 39Ground (4): "Obvious errors in the decision. The value of the photography element within the photograph and video package is $2,990, so if any payment based on a 50/50 basis had to be made, the amount should be $1,450." 40The question of the value of the photography element was a factual issue requiring leave to appeal. No leave has been granted and no leave has been sought. The Ground therefore has not been entertained by this Panel. In any event, the Tribunal Member found that the evidence of the Appellant was that the wedding photography itself was worth about $4,900 of the package. 41The Respondent's expert testified that only 7.2% of the photographs were "sharp" and 85.9% had a sharpness that was "soft", "soft to blurred" or "blurred". His opinion was that 29.6% of the photographs were blurred and were unsuitable for use. His opinion was that these images suffered from "chromatic fringing as the lens was damaged". He testified that the images were unable to be rectified. 42He also gave an opinion that the images also had a flat or washed out colour appearance and that was the result of shooting into the light and not using appropriate fill-in lighting to balance against shooting the images into direct daylight. Again, he said that this issue could not be rectified. 43 Ground (5): "Comment [sic] sense error and sign of bad faith from the Applicants - if the photos are of bad quality why grant the Applicants their request to have an album created and printed. A year ago, the Applicants were supposedly distressed and could not make a selection to create the album (Attachment #3 of the set aside application). However, this year once they were awarded a sum of money by NCAT they had no issue at all with finding photos to create an album. This a [sic] sign of bad faith to me." 44The Appellant did not place the document "Attachment #3" into evidence in the Appeal. The objection does not go to the validity of the Orders made. Given the findings that some of the photographs were of a commercial quality and acceptable, it was open to the Tribunal, then, to make an order which allowed the Respondents to choose some of the better photographs for the album to be prepared by the Appellant pursuant to the contract. The Appellant has not demonstrated that the Order regarding the photographs for the album was not open to the Tribunal on the evidence or involved an error by the Tribunal. This Ground has no demonstrated merit.

CONCLUSIONS 45On the material before us the Grounds of Appeal have no merit and the Appeal has no prospect of success. Extending the time for the appeal has not been shown to be necessary to avoid an injustice to the Appellant. It follows that the time for the appeal should not be extended and the appeal should be dismissed. 46The length of the delay in filing the appeal, the absence of any explanation for the delay, the prejudice to the Respondents if leave is granted; and the failure of the appellant to provide evidence as to when he first became aware of the time for an appeal and of what relevant legal advice he had before filing the appeal all support the conclusion that there is no injustice to the appellant if an extension of time is denied and the appeal is dismissed. 47The Panel therefore concludes that the Appeal is out of time, and has no prospect of success. Accordingly the time for filing the appeal should not be extended and the appeal should be dismissed.

ORDER 48The Order of the Appeal Panel therefore is:

The Notice of Appeal filed 30 May 2014 is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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: 16 December 2014

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