Commissioner for Fair Trading v Travel Action Pty Ltd [1999] NSWCA 39 | Case summary

Commissioner for Fair Trading v Travel Action Pty Ltd [1999] NSWCA 39 | Case summary | Zoe

[3]

The nature of the present application 1 The sole matter to be determined in this decision is whether we, the Appeal Panel, should allow these two appeals by the Commissioner of Fair Trading (the Commissioner) to be made after the expiry of the statutory time limit of 28 days laid down in s 113(3) of the Administrative Decisions Tribunal Act 1997 (the ADT Act). At a preliminary hearing on 30 October 2003, we directed, with the consent of the parties, that the Commissioner's application to lodge its appeals out of time should be determined on the basis of written submissions, pursuant to s 76 of the ADT Act. 2 The terms of s 113(3) are as follows:- An appeal must be made : (a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under s 89, or (b) within such further time as the Appeal Panel may allow. 3 The appeals allege errors of law in a decision by Acting President N Hennessy, Travel Action Pty Ltd; Sascha Frugtniet; Suzanne and Brian Frugtniet v Commissioner for Fair Trading [2003] NSWADT 223, in so far as it affected the two Respondents, Travel Action Pty Ltd (Travel Action) and Mr Sascha Frugtniet. In that decision, the learned Acting President made orders setting aside decisions by the Commissioner (a) to disqualify Sascha Frugtniet from holding a licence under the Travel Agents Act 1986 (the TA Act) and from being involved in the direction, management or conduct of a business as travel agent, in both cases for ten years; and (b) to cancel a licence held under this Act by Travel Action and to disqualify Travel Action from holding a licence under this Act for ten years. In substitution for the latter decision, the Acting President ordered that Travel Action be reprimanded for failing to comply with the TA Act. 4 In an affidavit dated 10 November 2003 in support of the Commissioner's application, Ms Kraza Bosinovska, a solicitor employed in the Legal Services Division of the Commissioner, stated that written reasons for the Acting President's decision were sent from the Tribunal by electronic mail to Mr Grant Elliott, who had acted as Counsel for the Commissioner, on Thursday 25 September 2003. This was the day after the decision was published on the Tribunal's web-site. As far as she was aware, no separate copy was sent to the Commissioner. On this basis, the Commissioner submitted, the 28-day time limit specified in s 113(3) of the ADT Act expired on Thursday 23 October. 5 In opposing the application, Mr Rudy Frugtniet (Mr Frugtniet), representing Sascha Frugtniet and Travel Action, claimed that the date on which the Commissioner should be deemed to have received the decision was 24 September, the date of its publication on the web-site, and that the statutory time for appeal therefore expired on 22 October. He alleged, but without any supporting evidence, that on 23 September the Tribunal notified Mr Elliott (as well as himself) that the decision would be published the following day. 6 The Commissioner lodged its two Notices of Appeal on Monday 27 October 2003. Its case was therefore that the appeals were instituted only two working days after expiry of the time-limit, whereas Mr Frugtniet claimed that they were three working days out of time. The principles to be applied 7 The submissions of both the Commissioner and Mr Frugtniet referred to the judgments of the High Court in Gallo v Dawson (1990) 93 ALR 479, stating that an appeal period should be extended if failure to do so would cause injustice between the parties. 8 These submissions referred also to a passage (at [16]) in the judgment of an Appeal Panel of this Tribunal in Opera Australia Ltd v Carr [1999] NSWADTAP 6, listing four matters as relevant in determining whether an injustice would result. These are as follows: the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the application. In the same paragraph, the Appeal Panel said that it was important to consider the prospects for the success of the appeal and to bear in mind that, if leave to appeal out of time was not granted, the respondent would have a 'vested right to retain the judgment'. 9 The Commissioner relied also on the decision of the Administrative Appeals Tribunal in Re Schmack and Defence Force Retirement and Death Benefits Authority (1981) 2 ALN N77. Here, in setting aside the decision of a statutory authority refusing an extension of time for reconsideration of an earlier decision relating to the amount of contribution payable by an ex-serviceman, the Tribunal set out a number of relevant considerations. 10 In Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9, an Appeal Panel of this Tribunal held, at [6], that these considerations were relevant to the determination of an application, such as the present, for leave to appeal out of time under the ADT Act. It 'restated' them in the following terms:- · the reason for the failure to lodge the appeal. · the length of the delay in lodging the appeal. · the diligence shown by the Appellant in lodging the appeal after it came to his notice that there were circumstances justifying an appeal. · the nature of the decision below and the consequences of the decision upon the Appellant's rights. · the adequacy of the information conveyed to the Appellant at the time the decision was notified to him, both as to the reasons for the decision and of the Appellant's entitlement to appeal. · the extent of the Appellant's knowledge of the relevant statutory provisions. · the possible prejudice to the Respondent to the appeal. 11 The submission of Mr Frugtniet referred to the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (also reported as Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305), setting out (at 348-349) the principles to be applied in determining whether to grant leave under s 11(3) (as it then was) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to apply out of time for review of an administrative decision. 12 In Lupevo, the Appeal Panel held, at [7], that these principles were also relevant in the present context. It summarised them in the following terms:- · Prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so. · It is relevant whether the Appellant rested on his rights or took action to make the decision-maker aware that the decision was being contested. · Any prejudice to the Respondent that would be caused by granting an extension of time is relevant. · The merits of the appeal are relevant. · Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant. 13 The Appeal Panel added that 'general considerations of fairness and equity' should also apply. It cited Hunter Valley Developments, Maric v Comcare (1993) 40 FCR 244 at 249. 14 There is a degree of overlap between the principles outlined in these decisions. In determining whether the present application should succeed, we will consider individually those factors which, as we see it, are of clear relevance to the particular circumstances of the case. The prima facie position 15 The first point made by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen is that, prima facie, appeals lodged outside the prescribed period should not be entertained. The onus lies on the applicant for leave to establish the necessary grounds - namely, that it is 'proper' to grant leave. This does not mean, however, that 'special circumstances' must exist. 16 In the submission of Mr Frugtniet, it was argued at one point that 'special circumstances' must be shown. Elsewhere, however, he cited the statement by Wilcox J that this is not necessary. The latter position is the correct one. The reason for the failure to lodge the Notices of Appeal within time 17 The judgment under appeal dealt with two other decisions made by the Commissioner under the TA Act. It affirmed these decisions, which were to permanently disqualify Suzanne Frugtniet and Brian Frugtniet respectively from being involved in the direction, management or conduct of a business as travel agent or holding a licence issued under this Act. 18 The Commissioner submitted that, as the judgment under appeal makes clear, there are close links between the business activities of these two parties and those of Sascha Frugtniet and Travel Action. The three members of the Frugtniet family had all, in different ways, been involved with the management and conduct of Travel Action. The proceedings relating to Suzanne and Brian Frugtniet and those relating to Sascha Frugtniet and Travel Action accordingly shared many common issues of law and fact. 19 The Commissioner was dissatisfied with the Tribunal's rulings in relation to Sascha Frugtniet and Travel Action. But it was prepared to refrain from challenging the rulings on appeal so long as the disqualifications of Suzanne and Brian Frugtniet were not challenged. In so deciding, it considered that, so long as these disqualifications remained on foot, it had been successful in large measure, having regard to the links between the two sets of proceedings, and between the business activities of the two sets of respondents. It also took account of the costs that would be incurred if it should institute appeals. Ms Bozinovska received instructions to this effect from her superiors within the Commissioner's office. 20 On Thursday 23 October 2003, being the day on which, as the Commissioner maintains, the statutory period for appeal expired, Ms Bozinovska inquired of the Tribunal Registry whether Suzanne or Brian Frugtniet had lodged Notices of Appeal against the Tribunal's affirmations of their disqualifications. She was told that on the previous day they had done so (it was in fact on the day before that - 21 October). She then took steps to lodge the present appeals, but for reasons set out below she could not get the notices to the Tribunal until Monday 27 October. 21 In his submission, Mr Frugtniet maintained that the Commissioner's decision to withhold any appeal until it ascertained whether Brian or Suzanne Frugtniet would appeal constituted a manipulation of the appeal process for its own ends and on that basis an abuse of process. Because, he argued, such a purpose was improper, the explanation advanced for the delay did not provide a 'proper reason'. 22 In our judgment, the Commissioner has provided a proper explanation for deciding not to appeal in these matters unless appeals were lodged by Brian and/or Suzanne Frugtniet. It is not for us to decide whether or not the underlying policy best served the statutory purposes to be pursued by the Commissioner. It is sufficient that it gave due consideration to all the practical implications of deciding not to appeal against the orders relating to Sascha Frugtniet and to Travel Action so long as the accompanying orders of the Tribunal were not challenged. We see no basis for the viewpoint that its adoption of this policy constituted an abuse of process by virtue of 'manipulation' of the appeal process. Had the appeals by Suzanne and Brian Frugtniet been lodged in sufficient time to allow the Commissioner to lodge the present appeals within the 28-day time limit, there would have been no ground for claiming that the latter appeals were improperly instituted. The length of the delay 23 According to the Commissioner, its appeals were lodged two working days after the expiry of the statutory time-limit. According to Mr Frugtniet's submission, they were three days late. Either way, the delay is a very short one indeed. The Commissioner's diligence in lodging the appeal 24 According to Ms Bozinovska's affidavits, after she discovered from the Tribunal on 23 October 2003 that Suzanne and Brian Frugtniet had lodged appeals, she obtained, on the same day, faxed copies of their Notices of Appeal. She forwarded these to Counsel, and was given instructions to the effect that, since these appeals had been instituted, the Commissioner would also appeal against the orders made in relation to Sascha Frugtniet and Travel Action. 25 On that day, or possibly the next day, 24 October, she saw hard copies of the Notices for the first time in her in-tray. Due to some difficulties in e-mail transmission, she could not immediately obtain the forms of notice of appeal from the Registry. She eventually downloaded them from the Tribunal's web-site. By the time that the Notices of Appeal had been settled by Counsel and signed by the Solicitor for the Commissioner, it was too late for the Notices to be taken from her office, which is in Parramatta, to the Registry on that day. They were filed on the next working day, Monday 27 October. A letter from the Tribunal enclosing a second copy of the Notices of Appeal by Brian and Suzanne Frugtniet arrived on 27 October. 26 In response, Mr Frugtniet maintained that Suzanne Frugtniet personally served the Notices of Appeal by herself and Brian Frugtniet on the Commissioner at Parramatta on 22 October. This was one day before Ms Bozinovska claimed to have first become aware that their appeals had been lodged. Mr Frugtniet also argued that the Registry would have faxed these Notices of Appeal - which, as we have said, were in fact filed on 21 October - immediately to the Solicitor for the Commissioner. He asserted too that Ms Bozinovska was unduly slow in obtaining the forms of notice of appeal. 27 As to these submissions by Mr Frugtniet, we would observe (a) that Ms Bozinovska's evidence of first seeing the hard copies of Brian and Suzanne Frugtniet's notices of appeal on 23 or 24 October is quite compatible with their having been delivered to the Commissioner's office on 22 October; (b) that since the Registry does not observe a practice of faxing notices of appeal to respondents or their representatives, the statement by Ms Bozinovska that a letter from the Tribunal enclosing copies did not arrive until 27 October is entirely credible; and (c) that there is nothing to warrant a finding that Ms Bozinovska acted unduly slowly in obtaining the appeal forms 28 In our opinion, the Commissioner has shown that it acted with appropriate diligence in filing these appeals once it was aware of the significant event prompting its decision that it should, after all, appeal. Notifying the decision-maker that the decision was being contested 29 On this matter, we observe that in the particular circumstances there was no reason why, and indeed no process whereby, the Commissioner should or could have notified the Tribunal that it would lodge the present appeals if appeals were made by Brian Frugtniet or Suzanne Frugtniet. We reject Mr Frugtniet's claim that it should have done this, and should also have given notice of this approach to Sascha Frugtniet and Travel Action. Prejudice to Sascha Frugtniet and Travel Action 30 Mr Frugtniet submitted, relying on a lengthy affidavit by Sascha Frugtniet, that both Sascha Frugtniet and Travel Action would suffer substantial prejudice if these appeals were allowed to proceed. The principal ground was that these appeals would prolong an already lengthy disturbance of the business activities of these two parties and would impose intolerable financial burdens upon them. Sascha Frugtniet specifically stated that on 22 October Mr Frugtniet advised him that these proceedings against him and Travel Action were now concluded, because the time for appeal by the Commissioner had expired. 31 The Commissioner's principal argument on this point was that neither the submission by Mr Frugtniet or the accompanying affidavit provided any evidence of prejudice to Sascha Frugtniet or Travel Action, or 'change of position' on their part, arising from the fact that the Commissioner's appeals were filed two working days after the statutory period had elapsed. The prejudice alleged, it said, arose solely from the fact that the Tribunal's orders regarding Sascha Frugtniet and Travel Action had been made subject to appeal, not from the lateness of the appeals. The Commissioner also observed that, since under the relevant provision (s 113(3) of the ADT Act) the 28-day period commenced from the day on which it received written reasons from the Tribunal, it was premature for Mr Frugtniet to advise Sascha Frugtniet on 22 October that this period had expired. 32 In our judgment, the relevant authorities show clearly, as the Commissioner contends, that what matters in this context is the nature and extent of any prejudice occasioned specifically by the delay in lodging the appeal. This was apparent, for instance in Wilcox J's treatment of this issue in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. At 349, he defined the relevant consideration as 'any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay' (emphasis added). At 352, he expressed his sole finding on the issue of prejudice in these terms: 'I do not regard the postponement of the hearing consequential upon the delay in commencing the proceedings as being a significant factor militating against the grant of an extension of time' (emphasis added). Impact upon third parties 33 Although a consideration defined in these terms is not specifically mentioned in the foregoing authorities, we would accept Mr Frugtniet's submission that, in some circumstances, it may be relevant and that, in a somewhat restricted form, it appears within the list of factors enumerated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen. 34 In Mr Frugtniet's submission, prejudice to an employee and two former employees of Travel Action would be caused by permitting the Commissioner's appeals to proceed. But, as with the prejudice claimed with regard to Travel Action and Sascha Frugtniet, it is not prejudice occasioned specifically by the delay in lodging the appeals. The consequences of the decision below for the Commissioner 35 In this connection, the Commissioner drew attention to its responsibility for properly administering and enforcing the TA Act for the benefit of the community and the appropriateness of seeking, in the interests of future enforcement, to have what it believed to be errors of law in the Tribunal's decision corrected on appeal. The merits of the appeals 36 The Commissioner's Notices of Appeal alleged errors of law by the Tribunal in failing to conclude, after having made findings of certain specified misconduct against Sascha Frugtniet (a) that he was not a fit and proper person to be involved in the business of a travel agent and (b) that Travel Action, on account of these findings and also by virtue of the findings and orders made against Suzanne Frugtniet and Brian Frugtniet, merited a substantially more severe penalty than the reprimand imposed. The Notices also sought leave for the appeals to extend to a review of the merits of the Tribunal's decision. 37 Mr Frugtniet argued that the errors alleged were manifestly not errors of law and that for this reason alone, by virtue of s 113(2) of the ADT Act as interpreted in a number of Tribunal decisions, the appeals lacked merit. He also submitted that there was no basis on which an Appeal Panel could overturn the rulings made by the Acting President on what essentially were matters of discretion. 38 In response, the Commissioner contended, citing Hope v Council of the City of Bathurst (1980) 144 CLR 1 at 7, that the question whether, on the basis of one or more findings of primary fact, a person should or should not be held a 'fit and proper person' within the meaning of a statutory provision is a question of law. It also argued, citing Health Care Complaints Commission v Pham [1999] NSWCA 39, that where in the light of findings of misconduct a penalty was found to be manifestly inadequate, this is 'appealable error'. 39 We agree that under s 113(2) an appeal which does not, at least arguably, allege one or more errors of law might fairly be described as unmeritorious. But in our judgment the cases cited by the Commissioner show that there is at least an arguable case that the errors alleged in its Notices of Appeal regarding Sascha Frugtniet and Travel Action respectively are errors of law. We consider further that there is at least an arguable case that the errors alleged are in fact discernable in the judgment under appeal. 40 We hasten to add that these observations are not based on a sustained analysis of the alleged errors. We are not in any way conveying an opinion in advance as to whether or not the appeals might succeed. Conclusion 41 In our opinion, the Commissioner has discharged the onus of establishing that it is 'proper' for us to allow the further time necessary for the lodgement of its appeals to be accepted. The primary factors inducing us to make this decision are (a) that the period of lateness in lodging the appeals was merely two, or possibly three days and (b) that there is no evidence of prejudice to Sascha Frugtniet or Travel Action arising out of this short delay. Our decision receives further support from the foregoing consideration of the other factors set out in the relevant case law. 42 Leave to lodge the appeals in these matters out of time is hereby granted to the Commissioner.

Commissioner for Fair Trading v Travel Action Pty Ltd

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