Cohen v Gigliotti

Extension of time application

Because the appeal is brought out of time (the appeal was lodged on 16 May 2023, but should have been lodged by 26 April 2023 - hence, it is 20 days late), the appellant seeks the necessary extension of time pursuant to the power we have to grant such an extension under s 41 of the NCAT Act.
As to the grant of an extension of time, well-established authority concerning such an application (see Jackson v NSW Land and Housing Corporation 2014 NSWCATAP 22 at [22]) states as follows: 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… (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... 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; (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)…, - 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.
The length of the delay was not inconsiderable. The appellant provided an explanation for the delay as follows: In respect of timeliness of Appeal and leave for an extension, as a busy doctor representing himself and not overly familiar with the day-to-day-operations and time-lines of the NCAT, the normal period for appeal expired without my cognisance. I did not have the time prior to this to review the not inconsiderable documentation online regarding NCAT processes and thus lodged an Appeal Application late, for which I am consequently seeking an extension to the time for filing the Notice of Appeal.
At the hearing of the appeal, the appellant told us that he works 7 days a week.
We do not regard this explanation as a satisfactory explanation for the delay. It is unspecific and many of those who use the Tribunal have very busy lives. It is a short and simple process to identify from an online search of NCAT that the general rule for the deadline in which to lodge the appeal is 28 days from notification of the decision or reasons for decision (whichever is the later). Even at the time when he lodged his appeal, the appellant had not identified that he needed an extension of time (the Notice of Appeal states that he did not need an extension). Under s 36 (3) of the NCAT Act a party to proceedings in the Tribunal is under a duty to co-operate with the Tribunal to give effect to the guiding principle in s 36 (1) to facilitate the "just, quick and cheap" resolution of the real issues in the proceedings. In the interests of the administration of litigation in the Tribunal in accordance with the guiding principle, and in the interests of the other party to the litigation, who is prejudiced, at least in a general way, by prolonging litigation, parties who wish to consider an appeal must ensure that they identify the deadline for doing so.
As to the appellant's prospects of success on the appeal, we do not see any merit in the appeal because: 1. The Tribunal's decision to refuse leave to renew is not attended by sufficient doubt to warrant its being reconsidered. 2. No substantial injustice results from a refusal of the required leave to appeal because the Tribunal considered the merits of the appellant's consumer claim, decided it would have dismissed the claim, if it had granted leave to renew, and we would not have granted leave to appeal from a decision on the merits of the consumer claim, had we been dealing with an appeal from such a decision.
Expanding upon these points concerning prospects of success, we first recognise that the appellant appeals from what is an interlocutory order, namely a refusal of leave to renew. Even in the case where the interlocutory order, effectively, disposes of the appealing party's case (a factor in favour of the grant of leave to appeal), as is the case here, leave to appeal from such an order, which is required (s 80 (2) (a) of the NCAT Act), should not be granted unless a substantial injustice would result and the decision is attended by sufficient doubt to warrant its being reconsidered: Infinity Security Group Pty Limited v Commissioner of Police, NSW Police Force [2023] NSWCATAP 173 at [29]- [30]; Champion Homes Pty Limited v Guirgis [2018] NSWCATAP 54 at [35].
In relation to the question whether the Tribunal's decision to refuse leave to renew was attended by sufficient doubt, the appellant made three points: 1. He repeated what he had put to the Tribunal about his interpretation of the orders made on 1 September 2022 (referred to above) and about what he had said to the Tribunal on that occasion. 2. He added that he believed that the Tribunal on 1 September 2022 was quickly trying to "wrap up" the proceedings and provide an order that could be written up on the day without due consideration being given to the underlying "fair trade issues". 3. He submitted that only he could say whether he had changed his mind about resolving the dispute by the supply of a bottle tree under Order 1 of the orders made on 1 September 2022.
As to (1), we have already expressed our view about the clear meaning of the orders. If the appellant did say to the Tribunal on 1 September 2022 what he claims to have said, he, nevertheless, consented to the orders that are clear in their terms.
In any event, the appellant did not establish what was said, orally, at the hearing on 1 September 2022. No transcript was supplied, despite the terms of Order 2 (d) of the orders made on 26 May 2023 concerning the conduct of the appeal, which required provision of a typed transcript of the relevant parts of the hearing if what happened at the hearing at first instance was being relied upon.
At the hearing of the appeal, the first-named respondent took issue with the appellant's statement that at the time of the hearing on 1 September 2022 he did not know what a bottle tree was. In this regard, he referred us to paragraphs 51 and 52 of the witness statement from Mr Kaufmehl, dated 17 August 2022, presented to the Tribunal in support of the appellant's claim. This evidence refers to a conversation or conversations Mr Kaufmehl had with the first-named respondent in June 2022 in which an offer of compensation was made by the first-named respondent to be used towards the purchase of "another variety of tree being either a Bottle tree, Olive tree of (sic) grass tree". Mr Kaufmehl responded that the offer was rejected and that the purchasers wish to have a full refund to put towards the purchase of a mature Dragon Tree from another vendor.
Whilst it would be expected that this offer was conveyed to the appellant, this evidence does not establish the knowledge that the first-named respondent contends the appellant had by the time of the hearing on 1 September 2022. Nevertheless, these matters serve to highlight the importance of obtaining the incontrovertible evidence that was available concerning what transpired at the hearing on 1 September 2022, if this was to be put forward as being of some significance.
As to (2), the expressed belief about this issue is not relevant to the issues in question.
As to (3), the appellant is not correct about this. It was open to the Tribunal to make a finding of fact about the appellant's state of mind. Given the clear terms of the orders made and the explanation provided by the appellant, the inference drawn by the Tribunal (an inference based upon the balance of probabilities) was reasonably open to it. On the material presented to us, it is difficult to see what other explanation was reasonably available.
In relation to the question whether substantial injustice results to the appellant, from a refusal of leave to appeal, we consider that we would have refused leave to appeal from a decision on the merits of the consumer claim, as expressed by the Tribunal on the alternative basis that it had granted leave to renew. Accordingly, we consider that no substantial injustice has resulted to the appellant.
In this regard, because we can discern no question of law that would have arisen, it is pertinent to recognise that leave to appeal from a decision on the merits by the Consumer and Commercial Division would have been required, pursuant to s 80 (2) (b) of the NCAT Act, to which the conditions for the grant of leave set out in cl 12 of Sch 4 would have been applicable, as well as the well-established principles concerning the exercise of the discretion to grant leave set out in Collins v Urban [2014] NSWCATAP 17 (at [84]), namely, that, 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.
In his written submissions about the Tribunal's views on the merits (and in his Notice of Appeal concerning the condition in cl 12 of Sch 4 that the decision was not fair and equitable), the appellant submitted: I believe member Titterton has neglected to make the respondent responsible providing fit for service goods as requiring unrealistic evidence in order to prove the applicant's case. Member Titterton found an overwhelming amount of evidence to support the case that the respondent had not acted fairly or under the terms of The Australian Consumer Law. Yet despite this, the onus of proving that an unfit tree had been provided requiring exhaustive and unrealistic proof (in hindsight 2 years later) regarding the manner in which the tree was delivered (by the respondent) and potential damage to its trunk, together with the compass orientation of the tree respect to being exactly the same as in the respondent's premises, noting again that the respondent undertook and was responsible for the crane lift and situation of the tree in our yard. Member Titterton's determination then shifts to the diseased pathogen found in the tree. Yet throughout this, "the fundamental principle" is seemingly ignored: the tree was noted as failing FROM THE FIRST COMMUNICATION WITH THE RESPONDENT. The respondent failed to visit for TWO YEARS, by which time it was too late. His assertion of a drainage issue was dismissed by the member. And the respondent made NO SUBMISSIONS to the NCAT. All the work, all the expense of a specialist report was born by the applicant/appellant and at the conclusion of this there seems no reflection on the respondent to provide fit for service goods: i.e. a tree that was NOT SICK ON ARRIVAL, which then FAILED TO THRIVE and ultimately DIED. So I believe that this is not a reasonable reflection of the purpose of the consumer principles and therefore that leave should be granted to appeal the decision.
In his oral submissions at the hearing of the appeal, the appellant emphasised that the issue came down to one of fairness and fair trading and that, put, simply, he had been supplied with a "dud tree that failed to survive" for which the respondent had failed to take responsibility. He submitted that to decide otherwise was to give precedence to "legal minutiae" over fundamental principle.
As to these submissions from the appellant, we make the following points: 1. Liability was not to be determined by broad and, potentially, subjective concepts of fairness and fair trading. 2. It is clear from reading the reasons of the Tribunal as a whole that it directed itself to the question whether the tree as supplied was "fit for purpose" (as well as whether it was of "acceptable quality"). 3. Correctly, the Tribunal did not determine liability on the basis of the manner in which the Respondents dealt with communications and complaints from the purchaser about the condition of the tree after it was supplied. 4. As to the exactitude of proof, the Tribunal, correctly, applied the standard of proof according to the balance of probabilities, in circumstances where the appellant confronted the difficulty that the disease in the tree was not diagnosed until about 20 months after supply and where there was a range of potential ways in which this could have occurred, other than being imported with the supply of the tree. Given these matters, it is unsurprising that there was no direct evidence that the disease came with the tree or that the appellant's expert expressed no opinion to the likelihood that this was the case.
In view of these matters, if we had been faced with an appeal from a decision on the merits as outlined by the Tribunal, we would have refused leave to appeal on the basis that the appeal raised no question of principle, such decision did not result in any injustice that was reasonably clear, such decision did not contain any plain error of central fact and none of the other discretionary matters concerning the grant of leave to appeal (as outlined above) were established.
Furthermore, we should address one final matter. In his Notice of Appeal, the appellant sought leave to appeal on the basis that the outlined, hypothetical, decision on the merits of his claim was against the weight of the evidence (a factor specified in cl 12 of Sch 4 in respect of the grant of leave to appeal).
In Collins v Urban (at [77], the Appeal Panel said: 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…
From what we have already said, it is apparent that we do not consider that this test concerning a decision against the weight of evidence would have been satisfied had there been an appeal from a decision on the merits of the claim.

At a glance

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Judgment (8 paragraphs)

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Cases Cited (5)