By a Notice of Appeal filed on 24 June 2021, the appellant appeals from a decision in the Consumer and Commercial Division of the Tribunal made on 11 May 2021 in which she was the respondent. The present respondent who was the landlord obtained orders in its favour whereby:
1. the Residential Tenancy Agreement between the parties was terminated in accordance with section 87 of the Residential Tenancies Act 2010 (NSW) as the present appellant had breached the agreement for failure to pay rent in accordance with the agreement;
2. the Residential Tenancy Agreement was terminated immediately and possession was to be given to the present respondent on the date of termination;
3. the order for possession was suspended until 1 June 2021;
4. the appellant was ordered to pay the present respondent a daily occupation fee at the rate of $77.14 per day from the day after the date of termination, namely 12 May 2021, until the date vacant possession was given to the present respondent landlord; and
5. the appellant was ordered to pay the present respondent the sum of $2,237.00 immediately.
Rule 25 (4)(b) of the Civil and Administrative Tribunal Rules 2014 relevantly states:
25 External and internal appeals
…
(4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged -
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(b) in the case of an internal appeal against a decision made in residential proceedings - within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later), or
…
The appellant acknowledges that she requires an extension of time. Section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) allows us to grant an extension of the time for the appellant to file her Notice of Appeal. That section states:
41 Extensions of time
(1) The Tribunal may, of its own motion or on 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.
In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 an Appeal Panel at [21] and [22] set out the following principles to be implemented in connection with an appeal filed late, for which an extension of time was sought under s 41 of the Civil and Administrative Tribunal Act:
"[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]."
In accordance with the principles from Jackson v NSW Land and Housing Corporation which we have extracted above we have first, calculated the length of the delay as 30 days.
Secondly, the appellant has provided reasons for the delay. Her Notice of Appeal is hand written and in some aspects, not completely legible. However doing the best we can, the appellant's reasons for the delay are as follows:
"I lodged my transaction spreadsheet with all payments for rent (created by my virtual assistant) within the time frame of appeal requesting to pause all orders until issue is resolved as the bank and super payments.
also lodge/email new evidence apart from email 23 February 2021 that Oz/an committed perjury in last hearing.
I also need a copy of the hardcopy ANZ statements previously submitted for RT 20/53317 that has now been replaced with new content. ANZ statements for comparing content values of 62 1/2 pages and 97 pages of ANZ statements.
I was shocked to receive notification text eviction was issued when I request for pause. I was told to submit through the portal but I have not done so because we continue to have hacking problems and online statements gone missing."
The appellant's Application for a stay of the original decision pending her appeal was filed on the same day as her Notice of Appeal, 24 June 2012 (and dismissed on 25 June 2021).
The appellant's explanation for the delay in filing her Notice of Appeal gives no clear explanation of the 30 day delay. The causes for the delay appear to be connected to her attempts to obtain new evidence and also her attempts to stay the original decision, although that application was filed at the same time as her Notice of Appeal.
To the extent the explanation for the delay relates to the appellant's attempts to obtain new or fresh evidence, we are of the view that such a reason for a delay in filing a Notice of Appeal is unsatisfactory. This is because an appellant will have the opportunity to file fresh evidence after the appeal has been instituted, orders for the filing of such evidence usually being made at an Appeal Panel directions hearing such as was held in this appeal on 25 June 2021.
The appellant being unrepresented would not have been aware of this procedure. In these circumstances, her explanation of the delay for this reason may have merit depending upon the fresh evidence that she seeks to file.
Leave to Appeal may be granted if the Appeal Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with): refer clause 12(1)(c) of Schedule 4 of the Civil and Administrative Tribunal Act.
In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40] in connection with clause 12(1)(c) of Schedule 4:
"[40] The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said:
"[23] Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud.
[24] Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c)."
In her Notice of Appeal the appellant described the significant new evidence which she seeks to rely upon. Rather than set out verbatim the content of Section B iv of the appellant's Notice of Appeal, we will state the matters that she refers to. Before doing so we find that the appellant has not actually identified the new evidence that she refers to. What the appellant has done is to identify the reasons that have prevented her from obtaining the new evidence. These reasons include:
1. a pattern of hacking, and her information being deleted, distorted and replaced with new information; and
2. the fact that she is dealing with the adverse actions of the governments of 3 countries, members of a foreign royal family, and a former member of the United States Administration.
The appellant's explanation for her delay in filing her appeal is less than satisfactory. To the extent that her explanation relates to her efforts to obtain new evidence, she has not identified the new evidence that she seeks to rely upon. Her explanation for the delay in obtaining that new (unidentified) evidence lacks credibility.
In Jackson v NSW Land and Housing Corporation the Appeal Panel at [22(4)] stated:
"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 …"
In considering the merits of the appeal, we have had regard to the content of the appellant's Notice of Appeal and her submissions at the appeal hearing. In our view the appellant is unable to show that her case is even fairly arguable, let alone having substantial merit.
In any event, we find that there is no utility in granting the extension of time sought as we are unable to make the orders sought by the appellant. The appellant stated that the orders the Appeal Panel should make are:
1. stop the eviction process scheduled on 23 June 2021;
2. return all money stolen with interest;
3. justice be served to people with authority who abuse their power, to face the consequence to the full extent of the law, e.g. charge with fraud or criminal record to their name;
4. restraining orders to be hands off my data on cloud and at home;
5. double compensation for re-traumatising my family's peace of mind and suffering; and
6. since they don't want me in the unit, let me find a place suitable to move in without pressure.
The appellant's application for a stay was dismissed on 25 June 2021. As a result we are unable to make orders 1 and 6. We are unable to make orders 2 and 5 because the proceedings at first instance did not include a claim by the appellant for payment of money or compensation. As to orders 3 and 4, the Appeal Panel does not possess the jurisdiction to make orders of that nature.
For the reasons stated, we refuse the applicant's application for an extension of time. The consequence is that her appeal must be dismissed.
We will make the necessary orders:
1. the appellant's application for an extension of time to file her Notice of Appeal is refused;
2. the appeal is dismissed.
[2]
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
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Decision last updated: 23 November 2021