Burns v Gaynor

NCAT Administrative and Equal Opportunity|2022-04-05

Background

The substantive application relates to a complaint made by Garry Burns to Anti -Discrimination NSW against Bernard Gaynor, alleging a contravention of ss 59ZS and 49ZT of the Anti-Discrimination Act 1977 (NSW).
On 2 September 2021 Mr Burns wrote to the Registry seeking to discontinue the application. The matter was listed for a case conference on 8 September 2021 and the Tribunal noted that Mr Burns had sought to withdraw the application and that Mr Gaynor was instead seeking that the application be dismissed with costs.
On 5 November 2021 the Tribunal determined the matter on the papers (Burns v Gaynor [2021] NSWCATAD 324) and made the following orders: 1. Order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) that the Tribunal dispenses with a hearing of the issues in this matter. 2. Order pursuant to s 55(1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW) that the proceedings are dismissed.
On 30 November 2022, pursuant to regulation 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW) (the Regulations), Mr Gaynor made an application to set aside the orders made by the Tribunal on 5 November 2021 (set aside application).
In directions made on 21 December 2021 the Tribunal noted that Mr Gaynor had also appealed the Tribunal decision to the Appeal Panel on similar grounds to those contained in the set aside application and that the appeal was listed for call over on 12 January 2022. Mr Gaynor sought that the Tribunal await the outcome of the appeal before proceeding to determine the set aside application.
The matter came before me for further directions on 25 February 2022. The appeal had not been finalised, I made directions for the exchange of documents in relation to the set-aside application.

Extension of Time

As noted above, the Tribunal orders were made on 5 November 2021 and Mr Gaynor's set aside application was lodged on 30 November 2021. Regulation 9(3) provides that, unless the Tribunal grants an extension of time under section 41 of NCAT Act, an application for an order under regulation 9 must be made within seven days after the decision concerned was made. Mr Gaynor is seeking an extension of time to make the set aside application.
In relation to whether an extension of time should be granted under s 41 of the NCAT Act, consideration must be given to the following factors: see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. 1. The length of the delay; 2. The reasons for the delay; 3. The applicant's prospects of success; and 4. Any prejudice to the other party.
The length of the delay is dealt with in a statutory declaration from Mr Gaynor's solicitor, Robert Balzola. Mr Balzola addresses the time for the making of an application for an internal appeal rather than a set aside application. He also addresses s 36(1) of the Interpretation Act 1987(NSW) in relation to the reckoning of time.
I note that the relevant provision in relation to the reckoning of time in the Tribunal is governed by rule 6 of the Civil and Administrative Tribunal Rules 2014 (NSW) which relevantly provides: (1) Any period of time fixed by these rules, or by any order or other decision of the Tribunal or a registrar or by any document in any proceedings, is to be reckoned in accordance with this rule. (2) If a time of one day or longer is to be reckoned by reference to a given day or event, the given day or the day of the given event is not to be counted. (3) If, apart from this rule, the period in question, being a period of 5 days or less, would include a day or part of a day on which the Registry is closed, that day is to be excluded. (4) If the last day for doing a thing is, or a thing is to be done on, a day on which the Registry is closed, the thing may be done on the next day on which the Registry is open. (5) Section 36 of the Interpretation Act 1987 (which relates to the reckoning of time) does not apply to these rules.
Rule 6 specifically excludes s 36 of the Interpretation Act 1987(NSW).
The set aside application was made more than 2 weeks out of time. In my view that is significant when the legislation provides a very tight timeframe of seven days.
As to the reasons for the delay, in the set aside application the explanation for the delay is set out as follows: Upon reading the Decision in Burns v Gaynor [2021] NSWCATAD on 5 November 2021, the earliest opportunity to physically attend the Tribunal Registry was 12 November 2021, and a further period to marshal the evidence and examine proofs of filing and service and corroborating evidence.
In his statement Mr Balzola confirms that Mr Gaynor was notified of the Tribunal decision on 5 November 2021. He then addresses the steps he took in relation to the matter. He states that he was prevented from dealing with the application because of the COVID-19 lockdown in the area which he operates his practice.
I note that Mr Balzola did not provide anything to support the assertion that, as a solicitor who operates in Bankstown, he was prevented from attending the Registry or, as he puts it, attending to physical mail or even making enquiries about the file over the phone. Regardless, he states that on 12 November 2021 he did in fact attend the Tribunal Registry and examined the file. I note that had the set aside application been made on 12 November 2021, the application would have been within time. Instead, the application was not made for another 16 days and there is very little explanation for that part of the delay.
In relation to whether an extension of time would cause prejudice, Mr Burns submits that, in circumstances where Mr Gaynor has also filed an appeal, the set aside application is an abuse of process. I do not find that the making of the set-aside application before the making of an appeal is an abuse of process, and nor is it or a matter that could be considered to cause prejudice to Mr Burns. However, I accept that setting aside a decision will naturally involve a degree of prejudice to Mr Burns who was initially successful.

Prospects of success on the set-aside application

In relation to Mr Gaynor's prospect of success, regulation 9 gives a limited right for the setting aside of orders, which varies from an appeal right.
Regulation 9(1)(b) relevantly sets out that in granting an application to set aside an order, the Tribunal must be satisfied: 1. That the decision was made in the absence of a party; and 2. That absence resulted in the party's case not being adequately put to the Tribunal. 3. However, even if the requirements for granting the set aside application are satisfied, the Tribunal has a discretion whether or not to set aside the Tribunal's decision. Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 at [65].
In relation to the decision of the Tribunal made on 5 November 2021, there was no oral hearing of the application. As part of the orders made by the Tribunal on 8 September 2021 the Tribunal made the following direction: 4. by consent of the parties, the request of Mr Burns to withdraw the matter and the Orders sought by the respondent in the General application form filed on 31 August 2021, including costs, will be determined 'on the papers' after 13 October 2021, dispensing with a hearing.
This set aside application raises an issue as to whether regulation 9 is relevant in circumstances where parties have consented to a matter being determined on the papers and the Tribunal has dispensed with a hearing.
At [18] in the reasons for decision the Tribunal found: I am satisfied, as required by s50(2) of the CAT Act, that the application for costs can be determined by considering the written submissions and other material filed in the Tribunal. A determination of this issue 'on the papers' is consistent with a 'just quick and cheap' resolution of the real issues in dispute as set out in s36(1) of the CAT Act.
In my view, the word "absence", in the context of regulation (9)(1)(b), does not extend to a situation in which a party has consented to the matter being determined on the papers. The word "absence" in that provision connotes a situation where the party has been prevented by circumstances from having the opportunity to be heard. Here, both parties had the opportunity to provide evidence in writing and submission to a process to which they consented.
In case I am wrong in that regard, I take a similar approach as that taken by this Tribunal in the matters of Choi v University of Technology Sydney [2019] NSWCATAD 212 and Coomber v Moree Plains Shire Council (No 2) [2019] NSWCATAD 229, and proceed to consider whether Mr Gaynor's absence has resulted in his case not being adequately put to the Tribunal.
There is nothing before me which indicates that, after the directions hearing of 8 September 2021, Mr Gaynor subsequently sought an oral hearing in relation to the application, or that if he did, the Tribunal was wrong in deciding to dispense with the hearing.
The reasons for the decision refer to submissions and evidence provided by the parties including an affidavit sworn by Mr Gaynor and written submissions. In the application for setting aside of the orders, Mr Gaynor states that, had the parties been present, it would have become clear that his submissions in reply filed on 13 October 2021 were not on the Tribunal file at the time of the making of the decision and were not considered.
Attached to the set aside application is a copy of an email from Mr Balzola email dated 13 October 2021 which contains the reply submissions. Neither that email nor the submissions on the Tribunal file. Mr Balzola has also included an automated response email from the Tribunal on that same date containing the following statement: Filing by email The Tribunal does not accept emailed applications, submissions or evidence unless specifically directed by the Tribunal. Hardcopies of application, submissions or evidence must be lodged.
There is nothing to indicate that, on receiving that response, Mr Balzola made any effort to contact the Registry to explain any situation regarding lock down or that he sought leave to provide the reply submissions by email. However, Mr Balzola states that he believed that the Tribunal had previously accepted other documents by email and that on that basis he believed it was the practice of the Tribunal to accept filing of both applicant and respondent via email.
In any case, the reasons for decision the Tribunal comprehensively deal with the issues raised by the reply submissions including the jurisdictional and costs issues and the application for the matter to be dismissed.
In Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales the Appeal Panel set out the matters and legal principles that are relevant when exercising the discretion of whether to grant a set aside application. The Appeal Panel relevantly stated at [74]-[80]. The central question in exercising the discretion is whether there is a real likelihood that it would be unjust to let the decision sought to be set aside stand. If so, it should be set aside on such terms as will minimise the possibility of injustice to the party which had obtained the original decision in its favour. See, for example, CMT [2014] NSWCATGD 11 at [67] and [68(e)]; Northey v Bega Valley Shire Council [2012] NSWCA 28 at [16]; Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239 at 243-4 - these latter two cases are both authorities dealing with r 36.16(2)(b) in the Uniform Civil Procedure Rules 2005 (NSW), or its predecessor, equivalent to cl 9(1)(b). Justice generally requires that parties against whom orders are made must be given a reasonable opportunity of appearing and presenting their case: Cameron v Cole (1944) 68 CLR 571 at 589. In the Tribunal, s 38(5)(c) of the Act provides: (5) The Tribunal is to take such measures as are reasonably practicable: … (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. If a party has been given such an opportunity, however, and has deliberately not taken it, there may well be no relevant injustice if the decision is allowed to stand: see, for example, CMT [2014] NSWCATGD 11 at [68(a)]. In this regard, the issue of why the party was absent from the hearing may be very significant: see, for example, Homeark Constructions v Hillside Excavations [2014] NSWCATAP 77 at [37], [39] and [40]. Injustice will only be likely to result if the party seeking to set aside the decision has an arguable defence or an arguable case that a different decision could have been reached. If not, setting aside the decision would be futile. See, in a different but related context, Kyriakou v Long [2013] NSWSC 1890 at [33] and [55], approved on appeal in Kyriakou v Long [2014] NSWCA 308 at [18]. Section 38(4) of the Act is consistent with this approach, in that it requires the Tribunal to act according to the substantial merits of the case without regard to technicalities or legal forms. In summary, when exercising the discretion conferred by cl 9(1)(b), the Tribunal should direct its attention to whether there would be a real likelihood of injustice if the decision was allowed to stand. Relevant considerations will generally include: Why the party was absent and whether the absent party had a reasonable opportunity to be heard or otherwise have its submissions considered in the proceedings; and Whether the absent party has an arguable defence or an arguable case that a different decision could have been reached.
I have read the reply submissions. Mr Gaynor has not demonstrated how the reply submissions, even if they had been considered, would have made a difference to the outcome of the decision. Having considered the reply submissions, I am not satisfied that there is a real likelihood of injustice if the Tribunal decision is permitted to stand, or that Mr Gaynor has demonstrated an arguable defence or case which would have resulted in a different decision by the Tribunal. In those circumstances, I would not exercise the discretion to grant the set-aside application.
On what it is before me presently, I am not satisfied that the set-aside application a reasonable prospect of success.

Refuse to extend time

Weighing up the factors relevant to the exercise of the discretion, I am not satisfied, in the circumstances, that the interests of justice require the extension of time for the making of the set-aside application. Mr Gaynor's reply submissions may not have been before the Tribunal, however;

Mr Gaynor, who was legally represented, delayed in making the set aside application by more than 2 weeks and has failed to adequately explain that delay;
the granting of the set aside would cause prejudice to Mr Burns. and;
the set-aside application does not have a reasonable prospect of success.

I make the following orders: 1. The application to extend time for the making of the set aside application is refused.

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 April 2022

Civil and Administrative Tribunal Regulation 2014(NSW)

Civil and Administrative Tribunal Regulation 2013(NSW)

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