Australian Barter Exchange Pty Ltd v Ma Victoria Cezina trading as Immia Cleaning Services

Is an extension of time required for the lodging of the Notice of Appeal?

1. Rule 25(4)(c) the Civil and Administrative Tribunal Rules 2013 (the CAT Rules) requires that a notice of appeal from the Consumer and Commercial Division be lodged within 28 days from "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)." In this case the appellant was present when the orders were made on 15 July 2014. The Tribunal record shows notice of the orders (which notice included short reasons for decision) were posted to the parties on that day. As a consequence, unless the contrary is proved, rule 13(4)(a) of the CAT Rules provides the Notice of Decision is taken to be given "at the end of the fourth working day after the date on which the notice or document was posted to the person:" i.e. 23 July 2014.
2. The notice of appeal says that notice of the decision was received by the appellant on 6 August 2013. This statement in the notice of appeal is contradicted by a letter from the appellant's solicitors to the Divisional Registrar dated 25 July 2014 which said - We act for Australian Barter Exchange Pty Ltd, in the above matter recently before Member P Smith and specifically in relation to the Notice of order made on 15 July (attached) in the matter of Ma Victoria Cenzia T/A Immia Cleaning Services v Australian Barter Exchange Pty Ltd. On behalf of our client we require, pursuant to s 62(2) of the Civil and Administrative Tribunal Act 2013, a written statement of reasons for decision. That letter had attached to it a copy of the Tribunal's Notice of Order made 15 July 2014. The letter is stamped as being received by the Tribunal on 28 July 2014.
3. On 31 July 2014 the Divisional Registrar responded that - It is noted that the orders issued to you included reasons prepared by the Member which satisfy the requirements of s 62(2) of the Civil and Administrative Tribunal Act 2013. The Presiding member has advised that no further reasons are available. That letter was sent to the appellant, not its solicitors. As a consequence Mr Baldwin submitted the Divisional Registrar's response was not received until 6 August 2014.
4. In her Notice of Reply the respondent argued that the appellant's Notice of Appeal was not filed in time. The appellant took issue with this but indicated in submissions that - If the Tribunal is of the view that the appeal was lodged out of time, the Applicant is prepared to advance reasons for the granting of an extension of time.
5. The Notice of Appeal was lodged on 3 September 2014, exactly 28 days after the appellant said notice of the decision was received. Given the fact that the appellant's solicitors had the Notice of Orders in their possession when they sought reasons for decision on 25 July 2014, the Panel is of the view that the appellant received the Notice before that date. In those circumstances the Panel considers that the assumption authorised by rule 13(4)(a) should apply, and the appellant should be taken to have been served with the Notice of Order on 23 July 2014.
6. As a consequence the Notice of Appeal was filed 10 days out of time, and the appellant requires an extension of time in order for the appeal to proceed. The appeal hearing proceeded on the basis that the appellant was seeking an extension of time.

The material before the Appeal Panel

1. The appellant relied on the following material: 1. The Notice of Appeal to which was annexed - 1. A document setting out the grounds of appeal and the relief sought; 2. A copy Notice of Order relating to the orders made by the CTTT on 6 September 2013; 3. A copy of the letter from the appellant's solicitors to the Divisional Registrar dated 25 July 2014. 4. A copy of the Divisional Registrar's response dated 31 July 2014. 1. The Notice of Order made by the Tribunal on 15 July 2014. 2. The appellant's submissions in reply to the respondent's Notice of Reply. 3. The appellant's submission in reply to the respondent's submissions.
2. The respondent relied on the following material: 1. The Notice of Reply lodged on 27 October 2014 to which was annexed: 1. A document entitled Response to the Appeal of Australian Barter Exchange Pty Ltd 2. A copy Notice of Order relating to the orders made by the CTTT on 6 September 2013; 3. A copy of an email from the admin@abexchange.com.au to the respondent dated 17 September 2013; and 4. A copy Notice of Order relating to the orders made by the CTTT on 6 September 2013. 5. The respondent's application for renewal of the proceedings 1. The respondent's submissions lodged 20 November 2012.

Application for extension of time - submissions

1. Mr Baldwin who appeared for the appellant submitted that the delay in the filing of the Notice of Appeal was due to instructions to lodge the appeal being received late in circumstances where: 1. His client was not aware of the time limits; and 2. The Notice of the order appealed against was directed to the attention of a person who was no longer an employee of the appellant. Mr Baldwin said that when he did receive instructions he took the view that the appeal should be properly prepared, and, if necessary, an extension of time sought.
2. The appellant did not place any evidence before the Tribunal that went to explain the delay in filing the Notice of Appeal.
3. The respondent opposed the granting of an extension of time to enable the appellant to seek leave to appeal. She considered that allowing the appellant to appeal out of time unfair to her.

The principles applicable to applications to extend time

1. Section 41 of the CAT Act provides: (1) The Tribunal may, of its own motion or on an application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
2. The principles to be applied by the Appeal Panel on applications for an extension of time in which to appeal were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The Appeal Panel relevantly said: 18 Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings". 19 An informative exposition of the role and nature of provisions which permit a Court or Tribunal to extend the time limits established for the orderly conduct of proceedings, including the time in which to lodge an appeal, is found in the decision of McHugh J sitting as a single justice of the High Court in Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2]: The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that 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 applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935: "The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion." 20 The Courts have identified in numerous cases various factors that should be considered in deciding whether to grant an extension of time in which to appeal. Substantially the same principles have also been applied by the Appeal Panel of the Administrative Decisions Tribunal (ADT), one of the predecessors of the Tribunal, in relation to appeals in the ADT - Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16], Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. These authorities provide useful guidance on the principles that are to be applied by the Appeal Panel in this regard. 21 Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice. 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) 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) 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 and explanation for delay

1. The appellant lodged the notice of appeal 10 days late, and therefore requires an extension of time. A short delay does not automatically excuse a failure to comply with a time limit.
2. The appellant has not put any evidence before us that explains the failure to lodge the Notice of Appeal. The explanation offered in submissions by Mr Baldwin is both lacking in specifics (e.g. no details are given as to when instructions to appeal were received) and unsupported by any evidence. Indeed, the letter the solicitors wrote the Divisional Registrar on 25 July 2014 indicates that they had received some instructions in relation to the matter at that time.
3. We are not persuaded that the appellant has provided a satisfactory explanation for the failure to lodge the Notice of Appeal in time.

Prejudice to the Respondent

1. The respondent is the sole owner and operator of her business. She has been involved in prosecuting her consumer claim against the appellant for more than a year. If an extension of time is granted she may lose the benefit of the order made in her favour, and face the prospect of the loss of further time and money involved in again prosecuting her claim. The Panel accepts that this is potentially prejudicial to her interests.

The Appellant's prospects of success

1. In its Notice of Appeal and submissions the appellant did not identify any specific error of law upon which it relied. Rather, the appellant identified mixed issues of fact and law concerning which it sought leave to appeal on the ground that it may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, and was against the weight of evidence: see cl 12 of Schedule 4 to the CAT Act.
2. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel reviewed the case law relating to the granting of leave to appeal generally and offered the following summary, at [84]: 1. In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 1. In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
3. With respect to the requirements of cl 12 of the First Schedule of the CAT Act, concerning appeals from the CCD, the Appeal Panel said - 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55].
4. In the present case under the heading "Decision not fair and equitable" in the Notice of Appeal the appellant wrote: The appeal rests on both questions of law and of fact. Both questions of law and of fact arise from the fact that the Member did not understand the facts or the industry involved, leading to a decision against the weight of the evidence and which as a result [is] unfair. The grounds are set out in detail in the attached materials. If the decision stands, it will seriously harm our client's business and other bartering businesses.
5. With respect to the decision being against the weight of evidence the appellant wrote: The Member failed to understand both the initial consent orders and the bartering industry in which the dispute arose. Details are provided in the attached material.
6. In the material attached to the Notice of Appeal the appellant made a number of assertions of fact concerning the history of the matter and then set out 10 grounds of appeal These were: 1. The Consent Order was indisputably to the effect that remedy afforded to the Applicant, and to be provided by the Respondent, was to be in Trade Dollars. 2. The references in the Consent Order to Australian dollars are solely for the purpose of specifying the way in which the value would be determined of the products or services which would satisfy the Respondent's obligation, namely by reference to retail prices. 3. The Tribunal in the Further Order finds, inter alia, that "the consent orders clearly identify as (sic) the currency for the agreement as retail prices". The Tribunal accordingly fell into error because, as a matter of English construction, a "currency" is incapable of being a "price". 4. In the statement quoted in 3 above, to the extent that the Tribunal intended to say that the Consent Order intended the remedy to be in Australia dollars, it again fell into error. Nothing in the Consent Order provides, either implicitly or expressly, that the Respondent was required to make a payment in Australian dollars as a means of discharging its obligation to the Applicant. 5. It follows from 4 above that, in making the Further Order, the Tribunal purported to enforce an order which had never been made, ie an order requiring payment in Australian dollars. This is, in the Respondent's submission, sufficient in itself for the Further Order to be set aside. 6. In the alternative, as the Consent Order made no reference to payment in Australian dollars, to the extent that the Further Order requires a payment in money, it has purported to impose a monetary penalty or fine. 7. Nothing in Part 5 of the Act or otherwise empowers the Tribunal to impose a fine on a party to proceedings in circumstances of the kind in question. 8. The Tribunal has accordingly, in making an order to pay money, acted ultra vires. 9. Further, the Tribunal has erred in fact in finding that the Respondent failed to comply with the Consent Order. The Consent Order was confined to products and/or services available through the Respondent's bartering process. The Respondent complied with the Consent order by offering to the Applicant all such products and services. The Applicant acted outside the Consent Order by demanding to be supplied with a service which was not within the range of products and services offered. 10. As a result of the matters set out in 9 above, the Tribunal fell into error by making an order, whether within or outside its powers, against the Respondent
7. In the course of oral argument the provisions of s 8(1) of the CC Act were drawn to the attention of Mr Baldwin. This provides that - (1) In determining a consumer claim wholly or partly in favour of a claimant, the Tribunal may, subject to this Part, make such one or more of the following orders as it considers appropriate: (a) an order that requires a respondent to pay to the claimant a specified amount of money, (b) an order that requires a respondent to perform specified work in order to rectify a defect in goods or services to which the claim relates, (c) an order that requires a respondent to supply to the claimant specified services other than work, (d) in the case of a claim for relief from payment of money, an order declaring that a specified amount of money is not due or owing by the claimant to a respondent, (e) an order that requires a respondent to deliver to the claimant goods of a specified description, (f) an order that requires a respondent to return to the claimant specified goods which are in the possession or under the control of that respondent, whether the property in the goods has passed or not, (g) an order that requires a respondent to replace goods to which the claim relates, (h) an order that requires: (i) a respondent to refund all or part of the purchase price of specified goods that are in the possession or under the control of the claimant, and (ii) the claimant to return all or part of those goods to the respondent, whether the property in the goods has passed or not.
8. The appellant did not seek to rely on the argument that the Tribunal did not have the power to make an order that it pay the respondent $4,506.00. Rather, the appellant submitted that: 1. The Tribunal misconstrued the terms of the consent orders by not appreciating that they provided for a barter transaction only, and did not contemplate any payments being made by the appellant to the respondent; 2. That the Tribunal was wrong when it found that the appellant had breached its obligations under the consent orders; and 3. That, given the bartering nature of the transaction between the parties, the Tribunal in the exercise of its discretion should have declined to make a monetary order.
9. In our view, if leave to appeal were granted the appellant would have no prospect of success. The monetary order made by the Tribunal was one which it had the power to make if it was considered appropriate: s 8(1)(a) CC Act. The appellant was on notice that the respondent was seeking a monetary order and of the amount she was seeking.
10. There is no suggestion that there was no evidence before the Tribunal to support the findings made by the Tribunal that the appellant breached its obligations under the consent order. Rather, the position advanced by the appellant is that the bartering nature of the agreement between the parties (including the consent orders) required the Tribunal in the exercise of its discretion not to make a monetary order.
11. Two points need to be made with respect to that submission. First, that a reading of the consent orders made by the Tribunal in September 2013, shows that the parties had agreed to a transaction involving the supply of goods or services to the value of $4,506.00 to the respondent from a list of goods and services currently available from the appellant's suppliers. Whilst those consent orders arose in the context of a dispute regarding barter transactions, the consent orders did not involve a barter transaction, but an agreement to supply goods and or services up to an agreed value.
12. Secondly, the fact that a consumer claim arises out of a bartering arrangement does not, and should not, limit the remedies available to an aggrieved party, by excluding from them the making of a monetary order. The Tribunal's ability to make a monetary order in order to finally resolve issues arising in a consumer claim is essential to the proper resolution of disputes. The Tribunal's power to make such an order under s 8(1)(a) of the CC Act should not be construed as being subject to discretionary restraint on the ground that the transaction giving rise to the consumer claim was a barter transaction. The respondent's submissions advanced no coherent or reasonable argument as to why such a restraint should be contemplated, beyond the fact of the bartering nature of the initial transaction.
13. In the Panel's view there is no reason in principle why the bartering nature of the initial transaction should restrict the remedies available to the Tribunal when determining a consumer claim arising from the transaction. While the initial arrangement may involve a barter, where there is a breach of that arrangement giving rise to a claim for damages, the Tribunal is not restricted in the orders it can make under s 8. It is required to make an appropriate order. Where, as was the case here, a bartering arrangement has been breached the making of a monetary order to provide compensation to the other party end is appropriate order.

Conclusion

1. It can be seen that we have concluded that while the appellant's delay in seeking to appeal is not a lengthy one, no reasonable explanation for that delay has been provided. The appeal itself has little prospect of success in our view.
2. In those circumstances the Panel considers that the appellant's application for an extension of time should be refused. In so far as it may be necessary to do so, because of the filing of the Notice of Appeal, the appeal itself should be dismissed, being out of time.

Order

1. The Appeal Panel makes the following order: 1. The appellant's application for an extension of time in which to appeal against the decision of the Consumer and Commercial Division made on 15 July 2014 is dismissed. 2. The Appeal 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: 12 February 2015