GM Catto Investments Pty Ltd v Edwards

NCAT Appeal Panel|2020-07-28

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 against a decision made in the Consumer and Commercial Division of the Tribunal on 15 April 2020.
At the Appeal Panel hearing the Appellant company was represented by Mr IG Catto who is one of the owners and operators of the company (which we will call the Appellant). The Respondent (Mr Edwards) was represented by Ms S. Simpson, a friend of Mr Edwards, pursuant to leave which was granted on 9 June 2020.
For the reasons set out below, we have decided to refuse to grant leave to extend time to appeal and dismiss the appeal.

Background

The Appellant operates a caravan park on the Central Coast of NSW. The Appellant and Respondent entered into an agreement that permitted Mr Edwards to occupy site 9 in that caravan park. It was common ground that this was a "site agreement" within the meaning of the Residential (Land Lease) Communities Act 2013 ("RLLC Act").
The original application to the Tribunal was brought by the Appellant. The company sought an order to terminate the site agreement pursuant to s. 129 of the RLLC Act on the ground of serious misconduct by Mr Edwards.
The serous misconduct alleged was that Mr Edwards assaulted Mr and Mrs Catto. The fact of the assault was not denied but the application for termination of the site agreement was opposed by Mr Edwards on the ground that he was not responsible for his actions due to a mental illness at the time, and so did not "intentionally or recklessly cause or permit" the assault within the meaning of s. 129 RLLC Act.

Tribunal proceedings and decision

The matter was heard and determined by the Tribunal on 15 April 2020. The Tribunal gave oral reasons on that day.
A sound recording of the hearing (including the reasons) was obtained and the Appellant arranged for a transcript to be prepared by a private typist. This was made available to the Appeal Panel as part of the appeal papers. The Respondent agreed with the accuracy of the transcript and consented to the Appeal Panel relying on the transcript in the appeal.
The Tribunal relevantly found that: 1. It had jurisdiction to hear the original. 2. Mr Edwards did assault Mr Catto and assaulted, abused and threatened Mrs Catto on 24 November 2019 at the caravan park. These facts were not denied. 3. We pause to observe that the assault upon Mr Catto was a serious one, involving a punch to the right side of the face with actual bodily injury. Mr Catto was admitted to hospital for some days and had investigations for a possible heart attack resulting from the assault. 4. Police were called to the scene and Mr Edwards was taken into custody. Later that day, he was detained in hospital as an involuntary patient under the Mental Health Act. 5. The Tribunal did not accept the Appellant's submission that Mr Edwards was affected by the drug "ice" at the time because a drug test at hospital revealed the presence of cannabis, not ice. 6. the Tribunal accepted medical evidence submitted by Mr Edwards that at the time of the assault he was experiencing a mental illness and was not aware of his actions. 7. As a result, the Tribunal found Mr Edwards did not "intentionally or recklessly cause" the assaults and dismissed the application.

Extension of Time

The Notice of Appeal was filed on 12 May 2020. In the Notice of Appeal, the Appellant states that it received notice of the Tribunal's decision on 15 April 2020.
Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 provides for a 14 day period for the filing of an appeal in relation to "residential proceedings". That term is defined in Rule 3 of the Civil and Administrative Tribunal Rules 2014 to include proceedings arising under the RLLC Act and so the appeal was required to be filed within 14 days from the day on which the appellant was notified of the decision on 15 April 2020.. The Appellant should therefore have filed the appeal by 29 April 2020. It was not filed until 12 May 2020. Accordingly, the appeal was filed 13 days late.
The Appeal Panel may extend time for the brining of an appeal- see s. 41 of the NCAT Act. Principles relevant to the exercise of that discretion are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: 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].
The Appellant did not directly address an extension of time in its Notice of Appeal or other written material, telling the Appeal Panel it was unaware of the 14 day time limit. The Appellant sought leave to amend its Notice of Appeal to seek an extension of time. This amendment was not opposed by the Respondent and the Tribunal granted the Appellant leave to amend its Notice of Appeal accordingly.
However, the Respondent did object to the extension of time, saying the Appellant had no reasonable excuse and that the Respondent experienced prejudice because he was awaiting the outcome of the appeal panel hearing before deciding how to terminate his occupation of Site 9 in the caravan park - this may depend upon the outcome of the appeal. Thus, the prejudice was the payment of site fees for the additional time of the delay. We consider this prejudice to be material but not substantial.
During the appeal the Appellant was asked for the reasons for the delay. The Appellant said it was aware of a time limit for appeal, believing it was the "usual" 28 days. It was unaware of the 14 day time limit,. There was no other reason given. This reason for the delay is less than satisfactory, however, on its own would not, in our opinion, be determinative of the issue.
In the circumstances of this case, we consider the length of delay, the reason for the delay and the prejudice to the Respondent do not tell substantially in favour of either granting or not granting the extension of time sought.
Accordingly, we now turn to consider the Appellant's prospects of success in the appeal.

Identifying submissions and evidence

In considering the Appellant's prospects of success of the appeal, we have had regard to the following: 1. the Notice of Appeal and attached bundle of documents detailed below; 2. the Reply to Appeal also with attached documents detailed below; 3. the transcript of the hearing and the oral reasons at first instance; 4. the orders made by the Tribunal including directions; 5. the original application to the Tribunal and the outcome of earlier applications involving the same facts..
We have also had regard to the oral submissions made to the Appeal Panel by Mr Catto and Ms Simpson.

Original and new documents

The material that the Appellant sought to rely upon included documents from the Tribunal hearing and new documents. It is important initially to determine the material the Tribunal had before it at first instance to distinguish it from new material sought to be relied upon.
The transcript records that the Tribunal listed the material which was before it at the time of the hearing. The Appellant's material before the Tribunal consisted of: 1. statement of Mr Catto dated 17 March 2020 2. Further statement of Mr Catto undated 3. Discharge Summary Central Coast local health district printed 26 November 2019 4. Statutory declaration of Mr Evans dated 16 March 2020; and 5. Statutory declaration of George Gazalar
The Respondent's material before the Tribunal consisted of: 1. Statement of Samantha Simpson 2. Discharge summary Central Coast local health district printed 2 January 2020 3. Letter Ron Gibbs dated 13 January 2020 4. Report Dr S. Khan dated 20 January 2020 5. Statutory declaration of Samantha Simpson dated 20 January 2020
The new material the appellant sought to rely upon in the appeal consisted of: 1. Further statement of Mr Catto dated 6 May 2020 2. Statement of Christopher Smith dated 6 May 2020 in the form of a statutory declaration 3. Statutory declaration of Jane Belinda Jeffs dated 3 December 2019 4. Statement of Maria Catto dated 6 May 2020 5. Letter of Brad Kernick lawyer dated 7 May 2020
In the appeal, the Respondent provided a one page statement headed "to Whom it May Concern" dated 13 July 2020 which is in the nature of submissions, and a statutory declaration of the Respondent dated 13 July 2020 that responds to the Appellant's new material.

Scope and nature of internal appeals

Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: "13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."

Notice of Appeal

The Notice of Appeal lacked clarity, so given that it was prepared by a self-represented litigant, and consistent with the above authorities, the Appeal Panel during the hearing asked questions of Mr Catto enabling the Appellant to articulate its grounds with more precision.
The Appellant's grounds of appeal can be stated as: 1. The Tribunal fell into error in applying the test in s.129(2) RLLC Act used to determine whether the Respondent "intentionally or recklessly" caused or permitted the assault; 2. It was denied natural justice in that the particulars of the Respondent's defence were not spelled out before the hearing 3. Significant new evidence has arisen since the trial in that the Respondent has pleaded guilty to assault charges. 4. The Tribunal failed to consider evidence of the Respondent's history of violence and misbehaviour;
Grounds 1 and 2, if proven, potentially raise errors of law and we will return to these shortly.
Grounds 3 and 4, do not raise an error of law and require leave under s.80(2)(b) because both rely upon new evidence being admitted in the appeal.

Grounds 1 - error in test of "intentionally or recklessly caused"

Section 129 of the RLLC Act is as follows 129 Application by operator for termination for serious misconduct (1) The operator of a community may apply to the Tribunal for a termination order on the ground of serious misconduct, without the need for a termination notice to be given. (2) The Tribunal may make the termination order under Division 3 if it is satisfied that a homeowner (or any person who is occupying or jointly occupying the residential site) has intentionally or recklessly caused or permitted - (a) serious damage to any property in the community, or (b) injury to any person when lawfully present in the community, or (c) the residential site to be used for any purpose that is illegal at common law or under an Act, or (d) the operator (or the operator's agent or an employee or contractor of the operator or operator's agent) or any resident to be seriously or persistently threatened or abused. (3) The termination order may take effect before or after the end of the fixed term if the site agreement is for a fixed term.
We pause to observe that the applicant for the order (in this case, the Appellant), carries the onus to prove the intention or recklessness. That is apparent from the terms of s. 129 and from similar provisions in the Residential Tenancies Act, 2010 see s. 90 and s.51.
In its reasons, the Tribunal found that serious injury had occurred and identified the crucial issue to be whether the Respondent had intentionally or recklessly caused or permitted that to occur. The transcript reveals that Tribunal quoted from the medical evidence, then characterised the question and made crucial findings in the following terms: (these have been altered from the transcript only to make it easier to read by deleting repetitions and verbal hesitations) "..for someone who would have intended an action that person must have determined mentally to do that action. For someone to have recklessly caused an action that person must have acted with utter carelessness about the consequences of the action. Here I'm satisfied that the evidence establishes that Mr Edwards was affected by a disease of his mind that is clearly in my view established from the discharge summary and also from the letters from Ron Gibbs and Dr Kahn. He was suffering from the mental illness at the time of this incident on 24 November 2019 such that in my view his reasoning or his mentality if you want to put it that way was abnormal. He had essentially lost contact with reality. His affected mentality in my view was such that he was really not aware in any real sense of what he was doing at the time. Hence my view it cannot be said or can't be found, given his state of mind at the time affected by mental illness, that he intentionally or recklessly caused the assault…"
The Tribunal was entitled to make those findings based upon the medical evidence before it. There is no submission to the contrary and no challenge to the medical evidence.
The argument the Appellant mounts is based on acceptance of the medical evidence and is in three parts.
First, it argues that the Respondent admitted to Doctors after the event that he had failed to take his medication - the argument goes that this failure indicates recklessness on the Respondent's part which proves the causative link within s. 129.
We do not accept this argument because, most importantly, there is no proof of a causal link. That is, there is no medical or other evidence that the failure to take medication resulted in the episode of mental illness. It was recorded in the medical history as just part of the presenting history.
An inference of a causative link may be available, but if so, it is countered by the evidence the Respondent gave on this subject: 1. He told the Tribunal that he missed taking medication for 3 or 4 days over the three months before the incident (Transcript page 8). He was not challenged or cross examined about this by the Appellant. 2. He denied being non-compliant with medication, disengaging from services and abusing substances over the three years before the incident (Transcript page 12). He was not challenged or cross examined about this by the Appellant.
Although the reasons do not refer to this evidence, the lack of countervailing evidence strongly suggests it was accepted by the Tribunal. Even if it was not, in our opinion that evidence is enough to rebut any inference that must be drawn for the Appellant to succeed on this point.
Secondly, the Appellant says that the Respondent was affected by drugs at the time of the incident and that deliberate drug taking indicates intention or recklessness on the Respondent's part, which proves the causative link within s. 129.
We do not accept this argument either. The Tribunal specifically rejected the Appellant submission that the Respondent was affected by the drug" ice" at the time of the incident (refer transcript page 16). Further, a urine test performed at the hospital on the day of admission showed that the Respondent had no other illicit substance in his system other than cannabis. There was no evidence to suggest that the taking of cannabis could result in the mental state of the Respondent leading to the incident which occurred.
A third argument was made that the medical history included references to a long-standing history of schizophrenia, comorbidity cluster B personality disorder, complicated by poly-substance abuse and a history of psychotically driven aggression and violence. Again, it is said, this evidence proves the causative link because what occurred was a manifestation of events that the Respondent was familiar with and knowing they could re-occur, he was responsible for his actions.
However, this evidence, in the absence of any countervailing evidence, rather than proving that the Respondent intentionally or recklessly caused the incident, tends to make it more likely that he was re-experiencing a psychotic event during which he was not responsible for his actions, as had occurred previously in his life.
The Appellant has not persuaded us that the Tribunal erred in finding that the Respondent was experiencing a mental illness and he was not responsible for his actions. Ground 1 would not succeed.

Ground 2 - Denial of procedural fairness

Mr Catto, on behalf of the Appellant said in the Notice of Appeal that "I didn't fully understand [the Respondent's] defence about 'intention or recklessness'. This was not stated clearly in the papers he submitted to the Tribunal and caught me by surprise".
The reference to the Respondent's defence of "intention or recklessness" is a reference to the reliance by the Respondent on the medical and related evidence provided by the him at the hearing in the Tribunal which was used as the basis for the argument that, as he was suffering from a mental illness at the time of the assaults, he was not acting intentionally or recklessly. The Appellant told the appeal panel that he had been provided with the Respondent's medical evidence in advance of the Tribunal hearing. He would therefore have had the opportunity to prepare for the hearing with the knowledge of that evidence. He may not have appreciated the argument that would be made on that material, but that is not by reason of material not being provided to him, or there being some sort of non-disclosure by the Respondent. We do not accept that procedural unfairness is established in this circumstance.
In Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106, Gleeson JA, with whom Emmett AJA agreed, said, at [25] to [27]: 25 In Adamson v Ede [2009] NSWCA 379, Campbell JA (Giles and Hodgson JJA agreeing), referred to the content of the obligation of natural justice in court proceedings and said, relevantly for the present case, at [59]-[61]: [59] Both in a court and in a tribunal, natural justice requires that a person be given a reasonable opportunity to present his or her case. However, as Gaudron J (with whom Dawson J agreed) pointed out in Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305 (sub nom Re Coldham; Ex parte Municipal Officers Association of Australia (1989) 84 ALR 208 at 220): "… the fact that a hearing has taken place may have particular significance in determining whether or not the opportunity was given. As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'. And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers' Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81 at 84; 76 ALR 353 at 358." (original emphasis) [60] The role of established procedures of courts, in deciding whether natural justice has been accorded to a litigant, is illustrated in Ex parte Fealey (1897) 18 NSWLR (L) 282 at 288 where Owen J (with whom GB Simpson J agreed) said: "A decision contrary to natural justice is where the presiding Judge or Magistrate denies to a litigant some right or privilege or benefit to which he is entitled in the ordinary course of the proceedings, as for instance where a Magistrate refuses to allow a litigant to address the Court, or where he refuses to allow a witness to be cross-examined, or cases of that kind." (emphasis added) [61] This principle stated by Owen J was applied in Ex parte Lucas (1910) 10 SR (NSW) 325 at 334 per Cullen CJ and in Ex parte Taylor; Re Butler (1924) 41 WN (NSW) 81 at 83 per Owen J, and was quoted by Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 98 [35]. (Emphasis added)
Given that the Appellant told the Appeal Panel that it had been provided with the Respondent's medical evidence in advance of the Tribunal hearing, we consider that the Appellant would have had reasonable opportunity to prepare for the hearing with the knowledge of that evidence. It had a reasonable opportunity to prepare its case, including by relying on evidence to rebut or counter any evidence relied on by the Respondent. Mr Catto ought reasonably to appreciate that the medical material served by the Respondent would be relevant to the question of whether he was acting intentionally or recklessly within the meaning of s 129 of the RLLC Act. After all, that was the section he relied on in seeking the termination order. As the authorities suggest, it is not for the Tribunal to ensure that the Appellant '…takes the best advantage of the opportunity to which [it] is entitled'. The Appellant had the onus of proof on the crucial issue of "intention or recklessness". The Respondent did not raise a "defence" as such but presented evidence which challenged whether the Appellant had proven those matters.
Ground 2 would not be made out.

Ground 3 - New evidence - plea of guilty

The Appellant argued that significant new evidence has arisen since the trial in that the Respondent has pleaded guilty to assault charges. This may have raised an argument to consider the fresh evidence, but the argument fails at the outset.
This is because the Appellant told the Appeal Panel that the argument is based on what happened on 7 May 2020 at the Local Court at Wyong. The evidence the Appellant seeks to rely on, if permitted by the Appeal Panel, is the letter from the lawyer Mr Kernick dated 7 May 2020. It discloses that the matter before the Court that day was not a hearing of an assault charge against the Respondent but the hearing of a private Apprehended Violence Order (AVO) brought by Mr & Mrs Catto (and some others) against the Respondent. There was no appearance for the Respondent that day although an email had been received from Legal Aid indicating a plea of guilty was likely and seeking an adjournment. The Court nevertheless made the AVO orders as sought.
Significantly we note 1. the Respondent did not plead guilty; 2. the matter was determined in his absence; and 3. in any event, he was not charged with the assault of 24 November.
This ground has no prospects of success.

Ground 4 - Not considering history of violence

The Appellant submitted we should allow as evidence in the appeal, the additional evidence listed above (which was not put before the Tribunal below), in order to demonstrate that the Respondent had a history of misbehaviour and violence so as to satisfy the test in s.129 of the RLLC Act.
There are a number of hurdles for the Appellant to overcome, if this submission is to succeed.
This Ground does not raise an error of law and the Appellant requires leave under S.80(2)(b) of the Civil and Administrative Tribunal Act, 2013.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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 essence, the Appellant wished to raise an argument that in addition to the events of 24 November, there were numerous other previous instances when the Respondent's behaviour would satisfy s.129(2), and in particular (d) that the ".. operator or any resident to be seriously or persistently threatened or abused"
The Appellant first argued that the Tribunal failed to take this argument into account. However, the material available to the tribunal is set out above. This material does not include any evidence of events prior to 24 November 2020 except with regard to some behaviour recorded on 20 November which did not cause injury and probably does not satisfy the test of misbehaviour in any event.
The appellant wanted to take the Appeal Panel to other material which it said was before the Tribunal but was not listed in the transcript. This material was said to describe behaviour occurring on dates before 20 November 2019. After discussion with the Appellant, it was established to the satisfaction of the Appeal Panel that the Appellant believed some of this material was before the Tribunal but, in fact, it was not. The chain of events which led to this misunderstanding is as follows. 1. Within a few days of the assault on 24 November 2019, the appellant applied to the Tribunal for an order under section 129 in matter RC19/53279. That Application was heard by the Tribunal on 4 December 2019 and an order under that section was made against the respondent in his absence. The Respondent did not appear for the obvious reason that he was detained under the Mental Health Act, 2007 as an involuntary patient in a mental hospital at that time. 2. A subsequent application was made in matter RC 19/54927 to set aside the order made 4 December 2019. This application was determined on 5 February 2020. The order of the Tribunal at that time was that the orders made in RC 19/53279 on 4 December 2019 were set aside because the Tribunal was satisfied the Respondent was unable to appear and his case was not adequately put to the tribunal. 3. Fresh proceedings for an order under s.129 were commenced by the Appellant being RC 20/05744 which are the proceedings currently the subject of the appeal. Mr Catto told the Appeal Panel that he had assumed that the material the Tribunal received in the hearing on 4 December 2019 would be before the Tribunal at the later hearing of RC 20/05744. However, the material from the earlier proceedings was not before the Tribunal in these proceedings because the Tribunal procedure is that each new matter is separate and evidence in one matter does not, without special order, become evidence in related cases. 4. In this regard, the Appellant was acting upon a mistaken belief but through no error by the Tribunal. One can appreciate how this error occurred but it is incumbent on each party to ensure all the evidence it seeks to rely upon is available to and before the Tribunal. To avoid this misunderstanding is the very reason why the Tribunal took the trouble to list the material it had before it when commencing the hearing. 5. For completeness, we note there can be no denial of procedural fairness in this circumstance because the Tribunal listed the material it had before it, at the commencement of the hearing. The Appellant had the opportunity to correct his error at that stage but did not do so.
As a result, there can be no error by the Tribunal in failing to take account of evidence not before it in this circumstance.
The second limb of the Appellant's argument is that it asked the Appeal Panel for leave to rely upon the new material listed above to prove its case under s.129. All of this material, with one exception, came into existence after the Tribunal hearing on 15 April 2020. The exception is the statutory declaration of Belinda Jane Jeffs dated 3 December 2019.
The Appeal Panel asked the Appellant's representative why the additional material was not available at the time of the hearing on 15 April 2020. The answer was that the Appellant was unaware of the amount of material required to prove its case and wished to rely on further evidence now. The Appeal Panel understood this to mean that presenting its own case without the benefit of legal representation meant the Appellant lacked experience or knowledge to marshal what is now said was a complete body of evidence for the hearing. There was no other explanation offered as to why this material was not reasonably available on 15 April at the Tribunal hearing.
The alternative is that, having read the Tribunal's reasons for rejecting the claim as out at the hearing, the Appellant now understands that the case it has to prove on intention or recklessness is very difficult. It therefore now seeks to deploy a new argument of a different breach of s 129 with new evidence. Such a course, if this be the true position, would not be allowed.
The evidence of Jane Belinda Jeffs was available at the time of the hearing. This was a document which the Appellant provided to the Tribunal for the earlier hearing on 4 December 2019 but failed to ensure was before the Tribunal on 15 April 2020, in the circumstances already outlined. It would be difficult to characterise this evidence as "not reasonably available" at the time because the only reason it was not available was an error by the Appellant.
We are not persuaded that the other material that the Appellant now seeks to rely on which came into existence after the hearing on 15 April satisfies the test of "not reasonably available" at the time of the hearing. The failure of the Appellant to organise it earlier and rely upon it at the hearing below arose through ignorance or inexperience, neither of which are a satisfactory explanation.
For completeness we note the Notice of Appeal includes the assertion "I have only recently been able to speak to Chris Smith who has now given Statutory Declaration". This was not mentioned in the Appeal Panel hearing but, in any event, without considerably more, it does not explain why the statement of Chris Smith was not reasonably available on 15 April 2020.

Conclusion - discretion to extend time

We conclude that the length of the delay is relatively short (13 days) and the prejudice to the Respondent while material, is not substantial. There is a less than satisfactory explanation for the delay. Further, we have reviewed the Appellant's prospects of success and consider that its appeal has poor prospects of success.
The authorities show the discretion to extend the time to appeal can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant. We are not satisfied that in this case having regard to the maters referred to above, strict compliance with the rules will work an injustice to the Appellant, or the demands of justice require us to extend time. Most importantly, as is set out above, this is because the appeal has such poor prospects of success.
Accordingly, the orders of the appeal panel are 1. Leave to extend time to file the appeal is refused. 2. The appeal is dismissed.

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: 20 August 2020

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Cases Cited (19)