Bersich v Quinlan Bulk Pty Ltd

Directions made for the Application 9On 13 August 2014, the Appeal Panel made the following orders and directions for the purposes of the preparation of this application for hearing: (1)Leave be granted to Mr Quinlan to appear for and represent the respondent in this matter. (2)The Appellant file and serve, if he so wishes, any written submissions and other material to be relied upon on the application for an extension of time in which to appeal on or before 20 August 2014. (3)The Respondent file and serve any written submissions and other materials to be relied upon on the application for an extension of time in which to appeal on or before 27 August 2014.

The material before the Appeal Panel 10For the purposes of the application before us, the following material was relied on by the appellant: (a)Notice of Appeal; (b)A document titled "Michael Bersich Appeal Points"; (c)A statutory declaration of the appellant made on 20 June 2014; and (d)The evidence relied upon by the appellant in the case below. 11The respondent sought to rely on a reply to appeal dated 2 September 2014. Attached to that document was a document titled "Response to Rehearing Application" dated 11 March 2014, a document titled: "Submissions as to an Extension of Time" and an invoice for fees from the respondent's solicitors. As can be seen from the directions made by the Appeal Panel on 13 August 2014, this material was served late. There was no proper explanation for the respondent's failure to comply with the directions. The appellant, who appeared by telephone for this application, had not been served with a copy of this material. Had he been present at the hearing, any prejudice caused to him by the failure to comply with the directions may have been able to be cured by him being provided with a copy and having a short time in which to consider it. However, in the circumstances of him appearing by telephone, this could not be done and we determined that the respondent should not be permitted to rely on this material at this hearing. We have not had regard to that material.

The principles applicable on applications to extend time 12Section 41 of the 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. 13The principles to be applied by the Appeal Panel on applications for an extension of time by which to appeal were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. It is convenient to set out the relevant passages of the Appeal Panel's reasons in that matter: 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].

The Appellant's submissions 14The appellant contended that the delay in his seeking to appeal the original decision was, in essence, because he had been given incorrect information and advice about the difference between an application for a rehearing and an appeal. He said that when he filed his application for a rehearing, he thought he was really filing an appeal and that was what he intended to do. He said he was given the wrong papers at the Penrith registry of the Tribunal. 15We have already observed that the application for rehearing was filed within the 28 days after the Appellant had been notified of the original decision. The Appellant accepted that for the purposes of preparing material for the application for the rehearing, he had the benefit of legal advice. His solicitors had prepared for him a document titled: "Michael Bersich Appeal Points" which was attached to the application for a rehearing. We will consider that document in more detail below. 16The Appellant said that he received notice of the decision of the Tribunal refusing his application for a rehearing on 21 March 2014. The notice of appeal the subject of this application was not lodged, however, until 23 June 2014. 17In his statutory declaration (to which Mr Quinlan, appearing for the respondent had no objection), the appellant recites the circumstances of his taking legal advice after the original decision. He refers, as he did in his oral submissions, to being given a form by registry staff having told them he wanted to appeal. 18When he received the notification in March 2014 advising that his application for a rehearing had been unsuccessful, he sought further legal advice. He said in oral submissions that he sought an appointment to seek that advice a week or so after he had received the notice of the decision. He said that it took another week before he could see the solicitor. The solicitors asked for his complete file and he gave that to them with the letter from the Tribunal notifying him of the decision to refuse his application for rehearing. In answer to questions from the Appeal Panel, he accepted that by the first half of April, he had sought and obtained legal advice following notification that his application for a rehearing had been refused. He said any delay from then until when he lodged the notice of appeal we because he was waiting for the solicitors to complete their review of the material. 19The appellant accepted in oral submissions that he knew there was a time limit for the filing of his notice of appeal. 20In his statutory declaration the appellant states that he accepts that the Tribunal has rejected his application for a rehearing on the correct grounds. At this point the Panel should note that this appears to have involved a misunderstanding on the appellant's part. During submissions, he conveyed that he thought the rehearing application had been rejected because he had used the wrong form or made the wrong type of application. This is not correct. The reason why the rehearing application was rejected was stated by the Tribunal on 21 March 2014 to be as follows: The matter was determined after a hearing on the merits, in which each party was given the opportunity to present their case fully and make submissions. The Applicant has not established that they may have suffered a substantial injustice. Accordingly, the application for a rehearing is refused. In reaching this conclusion, the Tribunal had before it on the rehearing application the document titled: "Michael Bersich Appeal Points" which his solicitors had prepared. When the Appeal Panel pointed out that his rehearing application had not been rejected because he had used the wrong form or had made the wrong type of application but because he had not established that he might have suffered a substantial injustice within s 68 of the CTTT Act, Mr Bersich accepted that this was the basis upon which his rehearing application had been rejected. 21He says that it was not until he had a conversation with registry staff on 13 June 2014 that he became aware that he had not, in fact, appealed the original decision. 22The appellant submitted that if he was granted an extension of time to appeal, the material contained in the document also titled "Michael Bersich Appeal Points" attached to his notice of appeal showed that the original decision was wrong and that he had good prospects of winning the appeal. He focussed particularly on what he believed to have been an error by the Tribunal in its original decision in refusing to pay enough weight to the medical evidence he placed before it. 23The appellant appeared to accept that there may be some prejudice, in the sense of unfairness, to the respondent if he was now allowed to appeal. However, he said that both he and the respondent had incurred legal costs and that he has lost a significant asset which he has owned for 20 years and cannot replace. 24The appellant said that if the time limit for the lodging of his appeal as set out in the rules was adhered to, he would suffer an injustice because he always wanted to appeal and it was because he got the wrong advice from the registry staff and the delay of his solicitors that he has not complied with the applicable time limit.

The Respondent's submissions 25Mr Quinlan made brief oral submissions as to why the application for an extension of time should be refused. He said that the Tribunal had originally made the right decision. He said that both parties had put all of the evidence they wanted to rely on before it at the original hearing. He said that the appellant had already tried to have the original decision reversed in his application for a rehearing (which he too thought was an appeal). He had engaged solicitors for that application and they had prepared the document titled :"Response to Rehearing Application" dated 11 March 2014. 26The respondent submitted that the appellant was seeking to now rely on the same or very similar "points of appeal" that he relied on in the application for a rehearing. He said he had been put to expense and inconvenience in having to get files from archive, engage solicitors again and take time off work to attend the hearing before the Appeal Panel. 27He submitted that the appellant had not put on any new evidence by a valuer or assessor to dispute the findings of the Tribunal in the original decision as to the value of the motorhome. He submitted that everything had been dealt with properly by the Tribunal and the appellant should not be able to have another hearing.

Disposition 28From the passages we have referred to above from Jackson v NSW Land and Housing Corporation, in considering the application for an extension of time we are 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 Appellant has a fairly arguable case; and (d) the extent of any prejudice suffered by the Respondent, as well as whether the appellant has established that strict compliance with the rules would work an injustice upon him.

Length of and explanation for delay 29As to the length of the delay, from the time that the Appellant was notified of the original decision, there is a delay of almost 4 and a half months before he lodged the notice of appeal. Even from the time of the appellant's being notified of the refusal of the application for rehearing on about 21 March 2014 there is a delay of 3 months before the appellant lodged the notice of appeal. These delays are not insignificant. 30Further, the appellant has not provided any adequate explanation for the delay. He accepted that he knew that there were time limits in which to file documents for an appeal. Even if it can be accepted that his misapprehension as to the nature of the application for a rehearing can explain the delay up until he was notified of that decision, about which we have some doubt, there is no adequate explanation for the delay from that time (about 21 March 2014) until the lodging of the notice of appeal on 23 June 2014. He had consulted solicitors by mid-April. He said they had delayed in finalising their advice to him but there was no reason why he could not have required or asked them to finalise matters more quickly. He apparently did not do so. 31We have come to the conclusion that the appellant has not provided any satisfactory explanation for the delay in seeking to appeal the original decision. He had sought legal advice. In so far as he seeks to blame his solicitors for the delay, we do not accept that, on the material before us, the delay can lay solely at the feet of his solicitors. The appellant was aware of time limits for taking steps to challenge the original decision. He did not take proper steps to ensure he complied with those time limits. Most tellingly, he has no explanation (other than to blame the solicitors) for the delay from the time he took legal advice after he became aware of the refusal of his application for rehearing (which was by mid-April) to the lodging of the notice of appeal in June. 32The length of the delay and the absence of a satisfactory explanation weigh against granting the extension of time sought.

The Appellant's prospects of success 33In considering this aspect of whether the appellant is entitled to an extension of time, we are conscious of the history of the proceedings, including the application for a rehearing and the determination of that application. That application was made pursuant to s 68 of the CTTT Act. Subsections (1) and (2) of that section provided: (1) A party in any proceedings that have been heard and determined by the Tribunal (the completed proceedings) may, in the manner and within the time prescribed by the regulations, apply to the Chairperson to have the completed proceedings reheard by the Tribunal. (2) The grounds on which such an application may be made are that the applicant may have suffered a substantial injustice because: (a) the decision of the Tribunal in the completed proceedings was not fair and equitable, or (b) the decision of the Tribunal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the completed proceedings were being heard). 34Those provisions in s 68 set out substantially the same requirements that a party seeking leave to appeal from a decision of the Consumer and Commercial Division of the Tribunal must establish pursuant to clause 12 of schedule 4 of the Act which provides, in part: (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). 35In the present case, the appellant has made an application for rehearing and that application has been determined on the merits. 36He had placed before the Tribunal on the application for rehearing a document titled: "Michael Bersich Appeal Points". This document was prepared with the assistance of his solicitors. It lists 14 numbered paragraphs of reasons why the appellant should have been successful in the original application. The respondent also made submissions on the rehearing application. There is nothing to suggest, and the appellant does not submit, that those matters were not considered by the Tribunal member in determining the application for a rehearing. 37The appellant's notice of appeal is clear that he is seeking leave to appeal and it was not in dispute that the appeal was from the original decision, despite the notice of appeal being somewhat confusing in this latter regard. As the Appeal Panel understood the appellant's submissions, he was not raising any error of law by the Tribunal below but rather his grounds of appeal related to how the evidence before the Tribunal below had been assessed and weighed. Accordingly, in considering the appellant's prospects of success we are to consider what are the prospects of his obtaining leave to appeal from the original decision. 38The principles applicable to the Appeal Panel considering whether to grant leave to appeal, particularly from decisions of the Consumer and Commercial Division, were set out in Collins v Urban [2014] NSWCATAP 17 at [65]-[84]. Importantly for present purposes, in the case of an application for leave to appeal from a decision of the Consumer and Commercial Division, under cl 12 of Sch 4 of the Act, the Appeal Panel's discretion to grant leave is only enlivened if the Panel is satisfied that 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 the 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). 39As we have observed, the requirements of cl 12 of Sch 4 to the Act are materially the same as those considered by the Tribunal when considering the appellant's application for a rehearing under s 68 of the CTTT Act. That application was refused on the basis that the appellant had not established that he may have suffered a substantial injustice. 40Before us, the appellant relies on another document titled: "Michael Bersich Appeal Points". It contains 14 numbered paragraphs setting out why the appellant ought to have succeeded before the Tribunal in the original application. This document is strikingly similar, in fact almost identical, to the document we referred to above which was relied upon in the application for rehearing. It is really in the form of submissions. The appellant also put before us some photocopy pages of buses/motorhomes for sale, apparently going to the quantum of his loss, however, that material was of not said to be fresh evidence falling within cl 12(1)(c) of Sch 4 to the Act and its relevance to any other issue on this application was not apparent. Apart from that material, he has not put any additional evidence before the Appeal Panel on which we could assess his prospects of success. 41Having regard to these matters and in the light of the Tribunal's earlier rejection of his rehearing application, the appellant's prospects of success on the application for leave to appeal are poor. We do not believe that it can be concluded that he has a fairly arguable case that he might have suffered a substantial miscarriage of justice. 42There is, consequently, no support for the granting of an extension of time to be derived from this consideration.

Prejudice to the Respondent 43We accept also that there would be prejudice to the respondent should the appellant be granted the extension of time. The respondent has had to defend the original application brought against it. It then resisted the application for rehearing. It sought and obtained legal assistance for that application. Having successfully resisted both applications and after the expiration of the period in which to lodge an appeal, it was entitled to think that the matter was concluded. 44Mr Quinlan noted he had to take time away from work to prepare for and attend the hearings. He needed to keep his company's insurer informed. All of these matters have placed a burden on the respondent. To grant an extension of time in which to appeal would only increase that burden. 45This consideration also weighs against granting the appellant an extension of time.

Would Requiring Compliance with the Rules Work an Injustice 46In considering whether or not to extend the time to appeal, we are also required to consider whether strict compliance with the time limits set by the rules would work an injustice upon the appellant: Jackson v NSW Land and Housing Corporation, supra at [22]. In the circumstances where he has already had a full hearing at first instance, and the determination of an application for a rehearing which required the consideration and application of substantially the same principles as he would have to satisfy if he was to obtain leave to appeal, we do not think it can be said that strict compliance with the rules concerning time limits in which to appeal works an injustice upon the appellant in the present case. 47Furthermore, it must be remembered that the guiding principles to be considered when applying the provisions of the Act is that the Tribunal is to resolve the real issues in proceedings justly, quickly and cheaply and with as little formality as possible. In this case, we do not believe those ends would be served by granting the appellant the extension of time he seeks.

Conclusion on Extension of Time 48In all these circumstances, the Appeal Panel concludes that the appellant's application for an extension of time in which to lodge his notice of appeal should be rejected.

Orders 49The orders we make are as follows: (1) The application for an extension of time in which to file the Notice of Appeal dated 23 June 2014 is refused. (2) The Appeal 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: 17 September 2014