Digby v Challis Private Hotel Pty Ltd t/as Challis Lodge

Proceedings before the Tribunal

1. On 30 September 2019, Ms Digby lodged an application for refund of a security bond and compensation for her belongings, pursuant to the Boarding Houses Act 2012 (NSW). She included with her application a letter headed "Application for Extension of Time." She provided a post office box as her address for service.
2. On 17 October 2019, the Tribunal gave notice to the parties of a conciliation and hearing on 1 November 2019.
3. At the request of Ms Digby, on 28 October 2019, that hearing was adjourned. The Tribunal member noted that Ms Digby had provided "supporting documents confirming of medical procedure and incapacity to attend." The application was listed for conciliation and hearing on 12 November 2019.
4. On 12 November 2019, the hearing was adjourned to a date to be fixed. The parties were directed to provide an email address to the Registry for service of notices by the Registry. Ms Digby was directed to send certain documentation, including her evidence, to the respondent by 24 November 2019.
5. On 2 December 2019, the Tribunal granted Ms Digby an extension of time, until 6 December 2019, to comply with the direction requiring her to send documentation to the respondent.
6. On 4 December 2019, the Registrar sent the parties notices stating that the application was listed for hearing on 15 January 2020. The notice was sent to Ms Digby's post office box.
7. On 10 January 2020, Ms Digby attended the emergency department at St Vincent's Hospital. A letter from the Hospital on that date records that she had a 1cm transverse clear laceration to the underlying bone over the right supercillary arch region (above her eye socket). The letter also notes that she "looks well, walking normally" and that she was given "mild head injury documentation."
8. On 15 January 2020, the Tribunal dismissed Ms Digby's application pursuant to s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") because Ms Digby failed to appear at the hearing.
9. The notice of dismissal was sent to Ms Digby's post office box. It informed her that the proceedings could be reinstated on her application if the Tribunal considered that there was a reasonable explanation for the failure to appear and the application was made within seven days, subject to any extension granted by the Tribunal.
10. Section 55(2) of the NCAT Act provides that the Tribunal may reinstate proceedings that have been dismissed under s 55(1)(c) if the Tribunal considers that there is a reasonable explanation for the applicant's failure to appear. Rule 36 of the Civil and Administrative Tribunal Rules 2014 (NSW) ("NCAT Rules") provides that, unless the Tribunal grants an extension under s 41 of the NCAT Act, a reinstatement application must be made within 7 days of the dismissal.
11. By letter dated 21 January 2020, Ms Digby wrote to the Registrar of the Tribunal stating that she had received no notice of the hearing on 15 January 2020.

Ms Digby's Reinstatement Application

1. On 22 January 2020, the Registrar emailed Ms Digby, informing her that, in order to apply for reinstatement, she needed to complete and lodge an application form along with the applicable fee.
2. On 28 January 2020, Ms Digby lodged an application to reinstate the proceedings. In the part of the form concerning the reasons for the reinstatement, Ms Digby wrote: "To the best of my knowledge no notice was received by me in my P.O. Box re the hearing set for 15th January. I am concerned that this happened and requested in my initial response that that be looked into. However, I am not relying on that as an excuse because, in any case I was not fit to attend on that day because of a head injury that occurred 10th January and resulted in a laceration above one eyebrow and bruising in that general area as well as on my left upper arm. I had a concussion and continue in treatment with my local G.P. whom I will see tomorrow and who will provide more detail and further recommendation than in the initial letter that may not have been considered good enough reason to excuse me from the hearing on 15th January. I am 'off-balance' and emotionally and physically exhausted as a consequence of the injury and related matters combined with the extreme weather conditions and the substandard accommodation which I currently live."
3. Under the heading "Extension of Time" on the reinstatement application form, Ms Digby wrote that the application was initially lodged in time "but was regarded as inadequate but no specific matter or reason was stated."
4. Ms Digby annexed to her application the letter from the Emergency Department at St Vincent's Hospital dated 10 January 2020, which is referred to above.
5. Under the heading "On the Papers Hearing," the reinstatement application form provided check boxes, allowing an applicant to check either "I want this application to be dealt with on the papers" or "I do not want this application to be dealt with on the papers." Ms Digby did not check either box. However, in the space allocated for an applicant to explain why the application should not be dealt with on the papers, Ms Digby wrote: "I wish to discuss this decision with my lawyer, who has been away but we are meeting on Friday 31st January, so that I understand the implication of making this choice. I am myself disposed to favour this method."
6. On 30 January 2020, the Tribunal dismissed Ms Digby's reinstatement application. The Notice of Decision, dated 30 January 2020, read as follows: "The Tribunal has received an application from the Applicant to reinstate an application in matter number GEN 19/44029 which was dismissed on 15/1/2020. The Tribunal dismisses the Applicant's reinstatement application. Reasons: 1. Although the application was dismissed due to the Applicant's non-appearance, the Tribunal is not satisfied that there is a reasonable explanation for the Applicant's failure to appear. There is no medical evidence to substantiate the non-attendance on 15/1/2020. 2. The application was not made within time (7 days) and the application to extend time is refused. 3. Further, the applicant has not provided any address for service."
7. The Notice of Decision did not make any mention of determining the matter on the papers. It was sent to Ms Digby's post office box.
8. Ms Digby stated that she received the Notice of Decision on 31 January 2020.

Notice of Appeal

1. On 4 March 2020, Ms Digby lodged an appeal from the decision to dismiss her reinstatement application. In response to the question as to whether she required an extension of time, she indicated that she did not and added "See cover letter 03/03/20." The cover letter was originally dated Monday 2nd March 2020, but the typed words "Monday 2nd" were crossed out and in handwriting above the crossed out words, the handwritten words "Wednesday 4th" appeared. The letter stated that the appeal was due on "Friday, the last day in February." In support of the application for an extension of time, Ms Digby referred to what she described as her "compromised functioning." She relied upon an attached letter from Dr Kaplan (on the letterhead, NSW Cardiology, St Vincent's Clinic). Ms Digby also relied upon the "more recent occurrence of a head injury with concussion" as recorded in a letter written by Ms Digby's general practitioner, Dr Mohammed.
2. The attached letter from Dr Kaplan, dated 19 February 2020, states that Ms Digby has "fairly significant cerebrovascular disease." Dr Kaplan also states in the letter that "chronic microvascular disease may cause a varying amount of symptoms, including early memory disturbance, problems with mobility and concentration."
3. Ms Digby provided the Appeal Panel with two letters from Dr Mohammed. The first, dated 21 January 2020, states that Ms Digby is aged 81 years and that she sustained head injury and presented to St Vincent Hospital on 10 January 2020. The second, dated 29 January 2020, states, in addition, that Ms Digby "reports she experienced post concussion symptoms."

Grounds of appeal

1. Ms Digby identified, in her Notice of Appeal, that the first ground was "a matter of law regarding the possibility that a Notice of Hearing was not sent to the Applicant who was then disadvantage [sic] by not being present at the hearing. Because the question remains unresolved, and notwithstanding that possibility, the Applicant would have required a change to the hearing date because of a head injury she suffered a few days before."
2. Ms Digby said that her second ground of appeal was that the decision was against the weight of evidence. In respect of the second ground, she relied upon the medical evidence lodged with her reinstatement application and sought to rely upon further medical evidence, being the letter from "Cardiologist Jason Kaplan who writes of a relevant chronic condition that the applicant has in the background (as it were) that was not previously shown to the Tribunal." This is Dr Kaplan's letter which is referred to above.
3. Ms Digby attached to her application a document entitled "Attachment B" which provided further information in support of her grounds of appeal. She described this in her Notice of Appeal as the "Grounds of Appeal Narrative" and it is in the nature of submissions, expanding her appeal grounds. In Attachment B, Ms Digby made the following points about the reasons given by the Tribunal for its decision (reproduced in paragraph 25 above).
4. In relation to the first reason (no reasonable explanation for the failure to appear and no medical evidence to substantiate non-attendance), Ms Digby submitted that there were "two reasonable explanations yet to be fully given consideration by the Tribunal." The first of these was that she received no notice of the hearing and the second was the doctor's letters she had provided to support her medical condition. She also sought to rely upon more recent medical evidence and claimed that she had concussion on the date of the hearing (15 January 2020).
5. In relation to the second reason given for the Tribunal's decision (that is, that the application for reinstatement was not made within time), Ms Digby referred to the reasons she had provided on the reinstatement application form (reproduced in paragraph 20 above). These include that she was "off-balance" as a result of the head injury. She added that she did not learn of the dismissal until 21 January, and that she believed she had a "solid case."
6. In relation to the third reason (lack of an address for service), Ms Digby stated that she had been in temporary accommodation for over a year and that the Tribunal had had her email address from the outset.
7. Ms Digby's grounds of appeal, taken with her submissions in Attachment B, broadly challenge the Tribunal's exercise of discretion when determining her reinstatement application. They also contend, in substance, that the Tribunal denied her procedural fairness by failing to consider her submissions.

Leave to appeal out of time

1. An appeal against a decision made in residential proceedings is to be made 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) (NCAT Rules, r 25(4)(b)). "Residential proceedings" include proceedings allocated to the Consumer and Commercial Division arising under the Boarding Houses Act 2012 (NCAT Rules, r 3), such as those brought by Ms Digby.
2. Ms Digby's appeal was lodged more than fourteen days after she was notified of the decision to refuse an extension of time to make the reinstatement application, and given reasons for it. This means that the appeal cannot proceed unless the Appeal Panel grants her an extension of time under s 41 of the NCAT Act.

Leave required to appeal from an interlocutory decision

1. The decision of the Tribunal not to grant Ms Digby an extension of time to make her application for reinstatement is an interlocutory decision (NCAT Rules, r 4(1), definition of "interlocutory decision"). Accordingly, Ms Digby needs leave to appeal from this decision (see NCAT Act, s 80(2)(a)).

Principles governing leave to appeal on a ground which does not raise a question of law

1. Ms Digby's Notice of Appeal identified that she is appealing on a question of law (in respect of the first ground) and was also asking for leave to appeal on the basis that the decision was against the weight of evidence, within cl 12(1)(b) of Sch 4 to the NCAT Act (in respect of the second ground). Clause 12(1) of Sch 4 to the NCAT Act provides for the circumstances in which the Appeal Panel may grant leave under section 80(2)(b) of the NCAT Act for an internal appeal against a decision of the Tribunal in the Consumer and Commercial Division.
2. Section 80(2) of the NCAT Act provides: "Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
3. As we have indicated above, the decision under appeal is an interlocutory decision, meaning that s 80(2)(a) applies. Nevertheless, where an appellant identifies a question of law, this may be a factor which supports a grant of leave.

Consideration of application for an extension of time to appeal

1. The Appeal Panel addressed the principles applying to a decision as to whether to grant an extension of time to appeal in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 ("Jackson"). The Appeal Panel stated at [18]: "The discretion to grant an extension of time is unfettered under that section 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 [sic: issues] in the proceedings'."
2. The Appeal Panel in Jackson referred to remarks made by McHugh J concerning the principles relevant to the grant of an extension of time in Gallo v Dawson [1990] HCA 30, (1990) 64 ALJR 458 at 459, including the following: "The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: …. 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… 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: …. 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: …. 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."
3. It follows that, in order for the power to extend time to be exercised in Ms Digby'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 (see Jackson at [21]).

Length of the delay

1. Ms Digby's covering letter indicates that she believed that she had 28 days to appeal. In residential proceedings, the appeal period is 14 days. This means that the appeal was about two and a half weeks out of time. The delay is neither negligible nor excessive.

Reasons for the delay

1. The main reason Ms Digby provided for the delay in lodging her appeal was that she had "compromised functioning." There is medical evidence to support this in the letter from Dr Kaplan which states that she has "fairly significant cerebrovascular disease" and implies that she may be suffering from early memory disturbance and concentration issues.
2. We consider that Ms Digby has provided a reasonable explanation for the delay.

Prejudice to the respondent

1. Mr Coudounaris, for the respondent, did not identify any particular prejudice which would be suffered by the respondent if an extension of time to appeal were to be granted. The respondent did state in its reply to the appeal that the matter had been "going on for some time with a history of delay after delay."

Does the appellant have a reasonably arguable case?

1. For the reasons which follow, we consider that Ms Digby has a reasonably arguable case that the Tribunal denied her procedural fairness by failing to consider her submissions when determining her application for an extension of time.
2. The first issue the Tribunal had to determine was whether to dispense with a hearing. The Tribunal did not make an order dispensing with a hearing, before determining the extension of time application on the papers (see NCAT Act, s 50(2)). It did not give any indication in its reasons that it had considered Ms Digby's statement that she wanted an opportunity to obtain legal advice about the matter being determined on the papers. Nor is there any indication that the Tribunal had formed a state of satisfaction that "the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal" (NCAT Act, s 50(2)).
3. It has been held, in a different context, that the Tribunal's failure to make an order dispensing with a hearing constituted an error of law, which vitiated its decision: see CLD v Children's Guardian [2017] NSWSC 936 at [17]. Further, we note that although the Tribunal gave Ms Digby the opportunity to make submissions about dispensing with a hearing, it did not inform the respondent about the reinstatement application. Section 50(3) of the NCAT Act provides that the Tribunal may not make an order dispensing with a hearing, without affording "the parties an opportunity to make submissions about the proposed order" and considering those submissions (NCAT Act, s 50(3)).
4. Issues concerning the Tribunal's compliance or lack of compliance with s 50 of the NCAT Act and the consequences of any non-compliance were not argued before us and we make no findings in this respect. However, we consider that it was necessary, as a matter of procedural fairness, to give Ms Digby more time to make submissions as to the determination of the matter on the papers, in circumstances where she had indicated she required a very short time to seek legal advice. The refusal of a reasonable request for an adjournment may constitute a denial of procedural fairness (see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611 [40]; Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; Conway v Brady [2018] NSWCATAP 51 at [13]).
5. The second issue the Tribunal had to determine was whether to extend time for the making of the reinstatement application under s 41(1) of the NCAT Act. As indicated in paragraph 25 above, the Tribunal gave short reasons for the decision not to extend time.
6. It is reasonably arguable that the Tribunal failed to consider Ms Digby's case and the submissions she made in support of it. A failure to consider a party's submissions may constitute a breach of procedural fairness (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1092 [24]).
7. It may be inferred that the Tribunal did not consider Ms Digby's submission that she had not received notice of the hearing. Although Ms Digby said in the reinstatement application that she would not rely on that "as an excuse," the submission should have signalled to the Tribunal that there was a real issue as to whether the dismissal of the proceedings was a breach of procedural fairness. The need to resolve this issue may also have indicated to the Tribunal that procedural fairness could not be provided by a hearing on the papers.
8. The Tribunal's statement that "there is no medical evidence to substantiate [Ms Digby's] non-attendance" is capable of indicating that it overlooked her medical evidence. If it did have regard to the medical evidence but considered that it was inadequate, it did not explain why. It did not deal with Ms Digby's submission that she was "off-balance" and "emotionally and physically exhausted as a consequence of the injury and related matters," particularly in light of her age (which was referred to in the medical evidence).
9. The failure to consider the matters raised in Ms Digby's application, taken together, was a failure to consider substantial submissions in support of the application.
10. We also note that there was apparently no consideration, by the Tribunal, of key factors relevant to the determination of Ms Digby's extension of time application, including the length of the delay, the reasons given for the delay and the extent of any prejudice suffered by the respondent (see Jackson at [22]; Bartush v Ale [2017] NSWCATAP 161 at [24]).
11. For the reasons given above, Ms Digby has a reasonably arguable case that the Tribunal erred when determining her application for an extension of time to make the reinstatement application. The merits of her case weigh strongly in favour of granting an extension of time for the appeal.

Decision as to extension of time

1. Taking into account all of the above factors, in our view, a refusal of the application for an extension of time to appeal would work a substantial injustice to Ms Digby. This is principally because the appeal has strong merits. Notwithstanding the delays in the proceedings before the Tribunal, we do not consider that an extension of time would cause significant prejudice to the respondent.
2. Accordingly, we have decided to grant Ms Digby an extension of time to lodge her appeal.

Leave to appeal from an interlocutory decision

1. We have also decided to grant Ms Digby leave to appeal from the interlocutory decision refusing an extension of time to make the reinstatement application, pursuant to s 80(2)(a) of the NCAT Act.
2. The purpose of requiring leave to appeal from interlocutory decisions is to save costs and to make sure that the real issues in dispute are determined justly and quickly: Bratby v Blain [2014] NSWCATAP 28 at [13].
3. In Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35], the Appeal Panel identified several principles which may be relevant to the grant of leave to appeal from an interlocutory decision. They include that leave should only be granted where there are substantial reasons to allow an appellate review and that, where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal.
4. This interlocutory decision effectively determined the rights of the parties, being a significant factor in favour of granting leave. In addition, we consider that there are substantial reasons to allow an appellate review, in the circumstances discussed above.

Determination of appeal

1. The Tribunal made an error of law when determining Ms Digby's application for an extension of time under s 41 of the NCAT Act. For the reasons given above, it denied Ms Digby procedural fairness by failing to respond to substantial, clearly-articulated arguments made by Ms Digby in her reinstatement application, which were relevant to the extension of time issue. Accordingly, we have decided to allow the appeal.
2. The proceedings are to be remitted to the Tribunal, for Ms Digby's application for an extension of time to be redetermined according to law.

Orders

1. We make the following orders: 1. Application for an extension of time to lodge the appeal granted. Time for lodgment of the Notice of Appeal extended to 4 March 2020. 2. Leave granted to the appellant to appeal from an interlocutory decision, being the decision to refuse an extension of time to make the reinstatement application. 3. Appeal allowed. 4. The proceedings are remitted to a differently-constituted Tribunal to redetermine the appellant's application for an extension of time in respect of her reinstatement application, according to law.

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: 25 May 2020