Di Salvo v Leung

Additional Preliminary Matters 10In order to deal with the substance of the applications urgently and given the conclusions reached, the Appeal Panel has not considered the extent to which the appellant's husband can or should be permitted to make the applications on the appellant's behalf. The notice of appeal describes the appellant's husband as one of the appellants but he was not a party to the proceedings below and no application that he be joined in the appeal has been made. For these reasons, the Appeal Panel has treated Frances Di Salvo as the only appellant. 11In section 16(a)(i) and (ii) of the notice of appeal it was expressly indicated that there was no objection to the application for an extension of time or for the grant of a stay being dealt with on the papers. As the Appeal Panel has decided that an extension of time should not be granted and that consequently the appeal has to be dismissed, it was not necessary to hear from the respondent in relation to the application for an extension of time. In these circumstances the Appeal Panel decided to proceed to determine the matter on the papers under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act).

Application for Extension of Time in which to Lodge a Notice of Appeal 12The reasons for decision were delivered, and the orders sought to be appealed from were made, on 30 June 2014. In section 3 of the notice of appeal, it was stated that the appellant received notice of the decision on 3 July 2014. In these circumstances, rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (the Rules) required an internal appeal from the decision at first instance, being a decision in a residential tenancy matter, to be instituted on or before 17 July 2014, that is within 14 days of the date on which the appellant was notified of the decision. 13The notice of appeal was first received by the Tribunal on 12 August 2014 and the requisite fee (concessional in this case) was not received until 14 August 2014. Thus the appellant was 28 days out of time. Even if the notice of appeal were taken as having been properly lodged on 12 August 2014 (which is not the case), the appellant was 26 days out of time. 14The appellant applied for an extension of time in which to lodge the notice appeal in the present case by ticking the relevant box in section 13 of the notice of appeal form. This satisfied the requirement under rule 8 of the Rules that an application for an extension of time under s 41 of the Act is to be in writing. 15Section 41 of the Act permits the Tribunal to grant an extension of time and is in the following terms: (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.

Extension of Time to Appeal - Principles 16The Tribunal's power to grant an extension of time in which to lodge an appeal was considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and what follows is largely taken from that decision. 17The discretion to grant an extension of time is unfettered under s 41 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". 18The 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 discussed in the judgment 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." 19The 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 Tribunal. 20Time 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. 21The specific 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 may be summarised as follows: (1)the length of the delay; (2)the reason for the delay; (3)the extent of any prejudice suffered by the respondent; and (4)the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case,

• Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]. 22Finally, 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]. It follows from this that the onus is on the applicant to provide sufficient material to support a finding that an injustice would be likely to be suffered if an extension were not granted.

Extension of Time to Appeal - Consideration 23The Appeal Panel will consider first the specific grounds put by the appellant for granting the extension of time and then will address the considerations set out above, even though there may be some overlap in the issues to be considered. 24In her notice of appeal the appellant indicated, correctly, that she required an extension of time in which to lodge the appeal. In response to the requirement in section 13 of that notice to "explain why the application was not lodged within the time limit, what effect granting or not granting the extension would have on you and the Respondents and any other relevant considerations you wish the Tribunal to take into account in deciding whether or not to grant an extension of time" the appellant directed attention to "Attached - Sec 11(A)". On pages 4 and 5 of 6 attached to the notice of appeal were 8 numbered paragraphs under the heading "A. Request for Extension of Time". 25The appellant's reasons for seeking the extension of time were summarised in paragraph 1 as follows: There are two reasons the Appellants require an extension of time of 12 days [sic, the delay was actually 28 or at least 26 days]: 1. their disabilities and their resulting limitations required more time to obtain advice, do research, and perfect the appeal, and 2. during the period 2 July to 25 July the Appellants believed they were engaged in bona fide negotiations with the Landlord Agent agreeing to nullify and void all prior proceedings and not effect any action without notice to the other party. On 26 July 2014 the Appellants became aware that the Landlord Agent acted in bad faith by obtaining a warrant for possession on 22 July 2014 without notifying the Appellants. The next business day was the expiry of the limitation period for appeal [That period had actually expired on 17 July 2014]. Given the exactness of the Appellants' appeal rights expiring by one day, the actions of the Landlord Agent strongly appeared calculated and malicious. 26Paragraphs 2 to 6 then expanded upon the first reason referred to in paragraph 1 - the appellant's and her husband's disabilities. Paragraphs 7 and 8 elaborated upon the second reason - the fact that there were discussions with the landlord with a view to resolving the matter as a whole.

Appellant First Reason to Extend Time 27As to the first reason, the Appeal Panel accepts that in certain cases disability suffered by an appellant may provide a ground upon which an extension of time may be granted. Whether an extension should actually be granted in any particular case, however, will depend upon the particular circumstances of the case. 28The appellant has attached to the notice of appeal a number of letters from medical practitioners indicating in relation to the appellant that: (1)she "has disabilities making her incapable of representing herself" - Dr D Gorman, letter of 31 October 2013; (2)she has "disabilities making everyday perfunctory duties difficult, and at times, impossible" and "chronic pain as a result of multiple diagnoses" - Dr J Yu, letter of 6 May 2014; (3)Dr Yu "admitted Frances [the appellant] to hospital in May 2013 and she was successfully treated" and "During later 2012 through 2013 Frances experienced traumatic events. My colleague, Dr David Gorman, has been treating her for this." - Dr J Yu, letter of 2 July 2014; and (4)"I have previously reported, most recently on 31 October 2013, that Frances has disabilities making her incapable of representing herself." - Dr D Gorman, letter of 30 June 2014. 29These letters also described the appellant's husband's symptoms and provided some albeit limited information as to his condition and disabilities. 30Also attached to the notice of appeal were prescriptions dated 4 November 2013 and 24 October 2013 for certain medication, one described as a "[xxx] Lozenge" and the other a "[xxx] Wafer" for the appellant's husband but no prescriptions for medication for the appellant. No explanation was given as to the significance of this medication. 31In addition there was a Medicate claims history for the appellant's husband for services provided between May 2013 and April 2014. There was also a medical certificate certifying that the husband was "receiving medical treatment and for the period Thursday, 19 June 2014 to Tuesday, 1 July 2014 inclusive he will be unfit to continue his usual occupation" by Dr Gorman dated 25 June 2014. 32The Tribunal at first instance handed down its decision on 30 June 2014 and by the appellant's own admission she received notice of it on 3 July 2014. She then had 14 days in which to appeal. There is no information at all in the medical material submitted with the notice of appeal and referred to above which relates specifically to the appellant's medical condition or disabilities during the period from 3 July 2014 until 12 August 2014 when the notice of appeal was first submitted to the Tribunal. None of the doctors' letters or the other documentation deals with that period. 33Even if it can be assumed that the appellant's condition and her husband's condition (to the extent that that may be relevant) continued after 3 July 2014 as they had before that time, there is no basis for the Appeal Panel to form any view as to the nature of the appellant's disabilities, whether they had any relevant impact upon her ability to lodge or give instructions for lodging a notice of appeal or any other relevant matter. Similarly, there is little specific evidence as to the way in which the husband's condition affected his or the appellant's ability to cause a notice of appeal to be prepared. 34In summary, the material contained in paragraphs 1 - 6 of the submission in support of the extension of time provides no specific identification of the disabilities that the appellant is relying upon and how they impacted upon her ability or that of her husband to lodge a notice of appeal within time. 35The only material which touches upon the relevant period is the contents of paragraphs 1 and 7 of that submission which states that "during the period 2 July to 25 July the Appellants believed they were engaged in bona fide negotiations with the Landlord Agent". Thus, It appears that the appellant and her husband were sufficiently well to be able to carry on meaningful negotiations with the landlord. If this is so, it is difficult to accept that they could not also have considered whether to lodge a notice of appeal and taken steps to do so. 36On the material available to the Appeal Panel, the first ground relied upon by the appellant for granting an extension of time, namely her disability and that of her husband, cannot be accepted as an explanation for the delay or as a basis for granting an extension of time.

Appellant's Second Reason to Extend Time 37As to the second reason, the only material the Appeal Panel has concerning the negotiations between the parties to try to resolve their disputes in the period from 2 July to 25 July 2014 is found in paragraphs 1 and 7 of the attachment to the notice of appeal referred to above. 38Even accepting this as an accurate statement of what occurred, it does not provide an explanation for why the appellant did not lodge a notice of appeal within time. 39Further, if as the appellant asserts she discovered on 26 July 2014 that the warrant for possession had been obtained, there is no explanation why a notice of appeal (including an application for an extension of time and for a stay) was not lodged as soon as possible after that time. The first attempt to lodge a notice of appeal was not made until more than 14 day after the appellant became aware of the warrant having been obtained. This is significant because the Rules allow only 14 days from the date of the appellant becoming aware of the decision in which to lodge an appeal. Accordingly, even if the negotiations caused the appellant not to file an appeal (and there is no statement in the material put before the Tribunal that this was the case), the appellant should have realised that she was required to act promptly in lodging an appeal in respect of a residential tenancy decision. No satisfactory explanation for why she did not do so after she became aware of the obtaining of the warrant has been given. 40Accordingly, the second ground relied upon by the appellant does not provide a basis for granting an extension of time.

Other Relevant Considerations 41It is now appropriate to consider specifically the length of the delay, the reasons for the delay, the extent of any prejudice suffered by the respondent and the appellant's prospects of success on the appeal.

Length of Delay 42As to the length of the delay, 26 or 28 days, whilst this may not appear to be a long period it must be viewed in context. The period for appealing from a residential tenancy decision is short, 14 days. This is a recognition that residential tenancy matters require the parties to consider their positions and decide whether to appeal promptly. Allowing only a short period in which to appeal makes sense in this context. For example, in the case of a landlord who has not being paid rent and who is likely to have little prospects of recovering unpaid rent from a tenant once the tenant has left, it is only fair to allow the tenant but a short time in which to appeal so that the prejudice suffered by the landlord, loss of rental income and inability to relet the premises, is not unduly protracted. Thus, the length of the delay in the present case, tends against granting an extension of time.

Reason for the Delay 43As to the reason or explanation for the delay, the 2 grounds relied upon by the appellant in her submission namely disability and the negotiations between the parties, do not in the present case provide a satisfactory explanation for why the appellant did not lodge her notice of appeal on time. This factor militates against extending the time in which to appeal.

Prejudice Suffered by the Respondent 44As to the prejudice suffered by the respondent, the appellant has not provided any evidence that the occupation fee ordered to be paid from 1 July 2014 has been paid nor is it alleged that it has been paid. Accordingly, it appears that the respondent has been deprived of the rent or occupation fee which should have been paid by the appellant since that time. Further, the landlord has been deprived of the ability to relet the property to a tenant who will pay rent when it is due since at least the date of vacant possession ordered by the Tribunal below, namely 7 July 2014. This amounts to significant prejudice to the respondent and tells in favour of refusing an extension of time.

Appellant's Prospects of Success 45Finally, the appellant's prospects of success on the appeal must be considered. The appellant has a right to appeal on a question of law and with leave on any other ground: Civil and Administrative Tribunal Act, s 80(2)(b). 46The application in the Tribunal below was for termination of the tenancy agreement on the basis of non-payment of rent. If the rent was not paid and remains unpaid, it appears that there is likely to chance of any appeal being successful. The only ground of appeal which suggests that the appellant does not owe rent of $4,593.09 (as found by the Tribunal at first instance) is that the respondent swore to fraudulent evidence namely the Tenant Rent Ledger which fraudulently omitted, so it was alleged, $6,240 in payments and security. 47Allegations of fraud must be stated with particularity and, on an application such as this for an extension of time, should be supported by some evidence. There was no such evidence provided of the appellant's allegation that the Tenant Rent Ledger fraudulently omitted payments. 48Documentary evidence of what appeared to be banking records was attached to the notice of appeal but it consisted of partially blanked out bank statements which did not provide any basis for identifying the holder of the account, the payee of any of the payments or the year in which some of the payments were made. Where the year of the entries or records was ascertainable, they all appeared to relate to transactions in the year 2012. This material provided no support for any allegation of fraud by the respondent nor did it suggest in any way that the respondent swore false evidence or that the rental arrears had in fact been paid. 49There was no other assertion by the appellant that the rental arrears or that the occupation fee for the period after 30 June 2014 had been paid. In these circumstances, the Appeal Panel does not accept that the appeal based on this ground could be said to be fairly arguable. 50The other grounds of appeal, whilst identifying what in some cases might be regarded as questions of law, are not sufficiently well founded in law or supported by material supplied by the appellant as to justify the Appeal Panel concluding that the appeal on those grounds is fairly arguable. 51As to procedural fairness, the Tribunal is obliged to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: Civil and Administrative Tribunal Act, s 38(5)(c). The Tribunal heard the application without the appellant being present. Although the appellant denied that the respondent's agent had telephoned her prior to the hearing, she did not deny that she received written notice of the time and date of the hearing. The Tribunal was satisfied that the appellant had received that notice. There is no evidence that the appellant contacted the Tribunal prior to 30 June 2014 advising that neither she nor her husband could attend the hearing. In those circumstances it is highly unlikely that this ground of appeal would succeed. 52In the absence of any particularisation of, or material to support, the allegations of there being "very short timeframes" or "unreasonable procedural orders" upon which the appellant apparently relies, the appellant has not shown that this ground of appeal has any reasonable prospects of success in the sense of being fairly arguable. 53As to lack of jurisdiction, it is an error of law for the Tribunal to hear and determine a matter when it lacks jurisdiction to do so. None of the matters on which the appellant relies in this regard in its grounds of appeal affect the Tribunal's jurisdiction. The appellant did not provide material in relation to, or particulars of, the previous determination on 19 March 2013 in application RT 13/11912. Nonetheless and even accepting what the appellant says about those proceedings, they provide no basis on which the Appeal Panel could be satisfied that the ground of appeal based on the Tribunal hearing the matter on 30 June 2014 lacking jurisdiction was fairly arguable. 54As to the alleged interference with medical treatment, there was only very limited material provided with the notice of appeal which might establish that the Appellant was hospitalised or underwent any medical treatment during the relevant period. Dr Yu in his letter of 2 July 2014 stated that he "admitted Frances [the appellant] to hospital in May 2013 and she was successfully treated". The Appeal Panel does not accept that this and the other material submitted by the appellant provided an adequate basis for concluding that an appeal on the ground that the respondent's application was vexatious because it 'interfered' with any hospital admission was fairly arguable. 55As to the abuse of process ground, there is no basis beyond assertion put forward by the appellant for concluding that the purpose of the respondent's application was to harass the appellant because of her disability. The Tribunal was satisfied of the factual basis for the application including that rent was due in the sum of $4,593.09.

56As to the bias ground of appeal, the relevant test is set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]. There will be a reasonable apprehension of bias: [i]f a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. 57No material is provided that relates to any refusal by the Tribunal Member to recuse herself in a previous related application. Even if that were the case, it would not of itself give rise to a reasonable apprehension of bias. The appellant has not provided any sufficient basis for the Appeal Panel to conclude that this ground is fairly arguable. 58Accordingly, the Appeal Panel cannot in this case conclude that any of the grounds of appeal raised by the appellant are fairly arguable or that she has prospects of success which would render it appropriate to grant an extension of time. 59In this context, the Appeal Panel has also had regard to the fact that the respondent has already obtained a decision in its favour and, once the period for appeal had expired, could 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]. In particular, the Panel was mindful of the statement in Jackamarra at [7] that 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. 60For the reasons given above, we are not satisfied that the appellant's prospects of success support the granting of an extension of time. On the contrary, the appellant's poor prospects favour refusing an extension in this case.

Substantial Injustice 61Finally, having regard to the lack of any evidence that the appellant has paid the rent arrears claimed or the occupation fee after 30 June 2014 and the other circumstances and considerations referred to at some length above, the Appeal Panel is not satisfied that the appellant has demonstrated either by her submission or the documentary evidence provided with her notice of appeal that she is likely to suffer any substantial injustice if the extension of time is not granted.

Conclusion 62For these reasons, the application for an extension of time in which to lodge the notice of appeal is refused. Therefore, the appeal is out of time and should be dismissed. Further, there can in these circumstances be no basis for staying the orders of the Tribunal below.

Orders 63The orders of the Appeal Panel are: (5)The Application for an extension of time in which to lodge the notice of appeal is refused. (6)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: 18 August 2014