Green Slips Direct Pty Ltd v Moran

NCAT Appeal Panel|2015-12-08

REASONS FOR DECISION

The appellant, Green Slips Direct Pty Ltd t/as Primus Automotive (Green Slips), seeks leave to appeal from a decision of the Consumer and Commercial Division of the Tribunal made on 24 June 2015. After a hearing that day, the Tribunal ordered Green Slips to pay the respondent, Mr Clarence Moran, the sum of $12,757.90 on or before 8 July 2015.
Regulation 25 of the Civil and Administration Tribunal Rules relevantly provides that, unless the Tribunal grants an extension under s 41 of the Civil and Administrative Tribunal Act 2013 (the Act), an internal appeal (other than an appeal against a decision made in residential proceedings) must be made within 28 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later). Any internal appeal by Green Slips should have been lodged on or before 22 July 2015. Green Slips lodged its internal appeal on 30 September 2015, approximately 10 weeks outside the period specified by the rules for lodging an internal appeal. Green Slips therefore needs an extension of time to proceed with the appeal.
These reasons consider whether the Appeal Panel should extend the time for the filing of Green Slips' Notice of Appeal.
For the reasons that follow, the Appeal Panel has decided to refuse to extend the time for filing the Notice of Appeal.
Accordingly, the appeal is dismissed.

Notice of Appeal

The Notice of Appeal states that the grounds of appeal are: 1. There is insufficient evidence to support a finding, on the balance of probabilities, that Mr Moran had suffered loss. 2. Green Slips had not been afforded procedural fairness, in that it was not allowed a reasonable opportunity to properly present its case, in circumstances where Mr Stanton was not available to give evidence at the hearing, notwithstanding an application to the Tribunal to have the hearing relisted to accommodate Mr Stanton's circumstances.
Section 80(2)(b) of the Act provides that an internal appeal may be made against a decision of the Tribunal as of right on any question of law or with leave of the Appeal Panel on any other grounds. The Notice of Appeal does not raise any discernible question of law and Green Slips seeks leave to appeal under cl 12, Sch 4 of the Act. Clause 12 provides that the Appeal Panel may grant leave to appeal, but only if it is satisfied there has been a "substantial miscarriage of justice" because the decision was not fair and equitable or it was against the weight of evidence or evidence is now available that was not reasonably available at the hearing.
The Notice of Appeal states that the decision of 24 June 2015: 1. Was not fair and equitable; in that the hearing proceeded after the Tribunal was notified that Mr Stanton was not available due to personal reasons. 2. Was against the weight of the evidence; in particular, in that the Tribunal failed to give sufficient weight to the fact that: 1. Mr Moran continued to drive the vehicle after he was made aware that the vehicle had a small coolant leak, and therefore should be considered to have contributed to the damage; and 2. Mr Moran failed to produce evidence that showed that a new engine had been fitted into the vehicle. Green Slips submitted that in the absence of such evidence Mr Moran had failed to prove his case. 1. Significant new evidence was now available, which was not reasonably available at the time of the hearing; namely, a Personal Property Securities Register (PPRS) certificate dated 25 September 2015, which purportedly showed that Mr Moran had not replaced the engine in the vehicle.

Reply to Appeal

A Reply to Appeal was filed on 20 October 2015. The Reply to Appeal states that Mr Moran opposes leave to appeal being granted because, relevantly: 1. The Tribunal determined that there was sufficient evidence as outlined in the reasons. 2. Green Slips was not denied procedural fairness as it was represented by a staff member (namely Mr Kanesaratham), who was given every opportunity to present Green Slips' case. 3. No written statement from Mr Stanton had been provided to the Tribunal.
Attached to and forming part of the Reply are detailed submissions dealing with the grounds stated by Green Slips in the Notice of Appeal as warranting leave to appeal. In summary, Mr Moran submits: 1. The decision of 24 June 2015 was fair and reasonable, in that: 1. Both parties were appeared at the hearing; 2. Green Slips did not file a written statement from Mr Stanton; 3. Mr Stanton was a salesman, and not a mechanic; accordingly even if he had appeared at the hearing and given evidence, it was unlikely that Green Slips would have obtained a different and more favourable result; 4. Green Slips had every opportunity to provide expert mechanical evidence but failed to do so. 1. The decision of 24 June 2015 was not against the weight of the evidence, in that the Tribunal considered and accepted the evidence of Mr Moran as to the defectiveness of the vehicle, and Green Slips has not submitted that this decision was one that could not have been reasonable reached based on that evidence: Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33. 2. A PPRS certificate could have been obtained for the hearing, and the PPRS certificate dated 25 September 2015 was not new evidence that was not reasonably available at the hearing. In addition, Mr Moran submits that even if a PPSR search had been obtained, it would not have given rise to a "significant possibility" of a different result: Collins v Urban [2014] NSWCATAP 17 at [74].
In relation to the appeal being filed outside of the 28 days required by s 25(4) of the Act, he submits that: 1. The time limit should generally be strictly enforced: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [21]. 2. At the time Green Slips' misconceived s 63 application was dismissed on 17 July 2015, Green Slips still had five days within the statutory limit to file the appeal. 3. Green Slips has not filed any evidence or submissions as to how or why a rejection of an extension of time would cause it an injustice; without the provision of such grounds the Appeal Panel's power to extend time should not be exercised: Jackson at [21]). 4. The discretion to extend time can only be exercised in favour of an applicant upon proof that strict compliance with the rules would work an injustice on that applicant: Jackson at [22(1)].
Mr Moran further submits that the appeal has no prospects of success. He submits that, at best, Green Slips' contentions concern peripheral issues that may or may not be arguable, and do not concern the substantive issues of the case, namely the determination that the vehicle was defective and the expense required to place the vehicle in a reasonable condition.
Finally, Mr Moran submits that there was nothing of substance to support Green Slip's allegation that the defectiveness may have been caused by Mr Moran's negligence. He submits that, without more, the appeal is doomed to failure and he should be permitted to exercise his "vested right" in retaining the benefit of the decision at first instance: Jackamarra v Krakouer (1998) 195 CLR 516 at [4].

Relevant principles

The relevant principles in considering whether or not to extend time were stated by the Appeal Panel in Jackson. There the Appeal Panel considered an application for an extension of time where the hearing was held and orders made on 30 January 2014, and the notice of appeal was filed on 4 March 2014. This was a matter involving a residential tenancy where appeals must be filed within 14 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision. The notice of appeal was filed approximately 19 days' late.
The Appeal Panel refused the application to extend time, and dismissed the appeal. In doing so, the Appeal Panel noted the following relevant principles: 1. Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. 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 in the proceedings": see [18]. 2. 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: see [22(1)]. 3. 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, 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: see [22(2)]. 4. Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider (at [22(3)]): 1. the length of the delay; 2. the reason for the delay; 3. the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and 4. the extent of any prejudice suffered by the respondent (to the appeal). 1. It may be necessary 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, namely, it may be relevant whether the appellant has a case that has more substantial merit than being fairly arguable: see [22(4)].

Consideration

The Appeal Panel makes the following relevant findings on the evidence before it: 1. The proceedings were listed for hearing on 24 June 2015 following directions made by the Tribunal about the filing of evidence, and a decision made that day. 2. On 9 July 2015 Green Slips filed an application pursuant to s 63 of the Act. 3. The application was dismissed on 17 July 2015. 4. The Notice of Appeal was filed on 30 September 2015.
In light of those findings, the Appeal Panel will now consider the relevant principles.
Length of delay: As noted, in Jackson the delay was some 19 days, and the Appeal Panel declined to extend time to file the appeal. This appeal was filed on 30 September 2015. This is approximately 10 weeks after the time on which the appeal should have been filed. Even allowing for the fact that Green Slips filed an application pursuant to s 63 of Act on 9 July 2014, which application was dismissed on 17 July 2015, the appeal was not filed for a further 10 weeks. This delay militates against the grant of an extension of time.
The reasons for delay: No submissions were filed by Green Slips pursuant to the directions of the Tribunal to explain the delay. Save for the reference in the Notice of Appeal which refers to the misconceived application pursuant to s 62 of the Act on 9 July 2015, no mention is made of, and no explanation given for, the delay in filing the Notice of Appeal. This factor militates strongly against the grant of an extension of time.
Prospects of success: It is clear from the reasons for decision that the Tribunal previously made directions about the filing of evidence, evidence was presented at the hearing by both parties and the Tribunal made findings based on the evidence presented. The Appeal Panel considers that there is substance in Mr Moran's submission that, in the absence of any statement of Mr Stanton being provided, either at the hearing or as part of this appeal, it should not be accepted that Mr Stanton's evidence, if given, would have made a difference to the outcome of the proceedings. Again, this factor militates against the grant of an extension of time.
Extent of prejudice: Mr Moran has not submitted that he would be prejudiced if an extension of time were granted. Accordingly, this is a neutral factor in determining whether the time for filing the appeal should be extended.
The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel of the Tribunal conducted a review of the relevant cases and set out the principles at [84]. In summary, for leave to appeal to be granted, an appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or matters of administration or policy which might have general application, an injustice which is reasonably clear, a factual error that was unreasonably arrived at and clearly mistaken; or that the Tribunal went about its fact finding process in such an unorthodox manner that it produced an unfair result.
The Appeal Panel is not persuaded, on the materials before it and having examined the reasons for decision, the Notice of Appeal and the Reply to Appeal, that Green Slips has sufficient grounds to establish any of these matters. Its prospects of success are weak and, at best, arguable. This factor militates against the grant of an extension of time. This is particularly so given the length of the delay and the failure of Green Slips to provide any explanation for this delay.

Conclusion

As the Appeal Panel stated in Jackson at [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.
The Appeal Panel notes that the guiding principle for the Act is to facilitate the just, quick and cheap resolution of the real issue in the proceedings: see s 36(1) of the Act.
The Appeal Panel considers that each factor considered above at [28] to [30] supports Mr Moran's submission that the time for filing Green Slips' appeal should not be extended. Accordingly, the Appeal Panel is not prepared to grant Green Slips an extension of time in which to appeal.
The application of Green Slips to extend the time for the filing of the appeal is refused.
The appeal is therefore dismissed.

Orders

The Appeal Panel makes the following orders: 1. The application for an extension of time in which to appeal is dismissed. 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

Amendments 09 December 2015 - Coversheet - catchwords - correct typing error - week to weak. 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: 09 December 2015

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