Hill v Crampton Automotive

Leave to appeal

1. The appellant seeks leave to appeal on the basis that the decision was not fair and equitable and the decision was against the weight of evidence. That is, the appellant seeks leave under the first two limbs of clause 12 of Schedule 4 of the Act. This provision is as follows: "(1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence,..."
2. These provisions were extensively discussed in Collins v Urban at [65]-[84], and will be dealt with further in these reasons under a separate heading.
3. The respondent supports the original orders and opposes the grant of leave to appeal.
4. The respondent also does not accept that the appeal was lodged within time and objects to the Tribunal extending the time for making of the appeal. The respondent says that the appeal impacts unfairly on the respondent's ability to carry on its business having already devoted a great deal of time and money on this matter. A number of personnel have changed and the company itself has changed ownership. The respondent therefore essentially relies upon prejudice caused by undue delay. The appellant acknowledges that he requires leave for an extension of time within which to file the appeal.
5. The appellant stated in the Notice of Appeal that the decision was not fair and equitable for the following reason: "I will describe in writing and detail why the decision was not fair in any manner or form."
6. The appellant enclosed a written statement with his Notice of Appeal which raised concerns that the Tribunal did not consider his evidence, that the Tribunal member spoke very quietly, and that the respondent accepted liability for a "major defect" apparently referring to the steering issue raised by the appellant. Otherwise, there were no other grounds upon which the appellant suggested that the decision was not fair and equitable. The appellant provided extensive written material from a mechanic to whom he had taken the motor vehicle. Additionally, the appellant provided a response to the expert report provided by the respondent, and correspondence between himself and various people including the Commissioner for Fair Trading and the Minister for Fair Trading.
7. The respondent provided to the Tribunal below an expert report dated 28 November 2014 which was also provided to the Appeal Panel. The respondent submits in its Reply to Appeal that the order handed down is consistent with the only independent evidence presented which was to the effect that the alleged issues were consistent with the ordinary nature of the vehicle. In short, the respondent says that the appellant has not presented any compelling evidence that the initial order was incorrect.

The identified issues

1. The matter was listed in the Appeal Panel when directions were made by Principal Member Redfern on 9 April 2015. At that time Mr Howlett was granted leave to represent the respondent. The appellant was directed to file and serve submissions and any further material to be relied upon (including a sound recording of the hearing) by 30 April 2015. The respondent was directed to file submissions and any further material relied upon by 14 May 2015. The appeal was listed for hearing on 3 June 2015. The issues then identified for decision by the Appeal Panel were: 1. whether time should be extended for filing of the Notice of Appeal; 2. whether leave should be given to appeal on grounds other than grounds which raised a question of law; and 3. whether leave to rely on new material which was not before the Tribunal below should be allowed to be received by the Appeal Panel on the hearing of the appeal.
2. The appellant sought an adjournment of his appeal when he was contacted and appeared by telephone. Before the appeal itself could be heard the issue of whether leave should be granted to extend the time for filing of the Notice of Appeal would have to have also been determined. The respondent also appeared by telephone. The application for an adjournment was opposed by the respondent.

Extension of time to file the Appeal

1. The time within which to file the Notice of Appeal is 28 days from the day on which the appellant was notified of the decision: Civil and Administrative Tribunal Rules 2014. The relevant rule, which is rule 25(4), provides as follows: "... (4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged: (a) in the case where the enabling legislation specifies the period within which the appeal is to be made-within the period specified, or (b) in the case of an internal appeal against a decision made in residential proceedings-within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later), or (c) in any other case-within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later)."
2. Section 41 of the Act provides as follows: "(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.
3. As referred to previously, the respondent opposes extension of time to file the appeal. The respondent says that it is prejudiced. The Appeal Panel accepts that the respondent will be prejudiced if there is an extension of time granted.
4. The decision was made on 18 December 2014. The appellant says he was notified on received notice of decision on 26 December 2014. The appeal should have been filed earlier than it was on 2 March 2015, which was more than 9 weeks later. As previously stated the appellant also accepts that he requires an extension of time and seeks it.
5. The reasons given for filing the notice of appeal out of time were less than satisfactory. In essence, the appellant relied upon the fact that there was a Christmas break and the appellant simply says he was not able to meet the required time period. The appellant completed the section of the standard Notice of Appeal stating that he wished to obtain an extension of time: "As I wished to appeal to your board, but owing to many factors and reasons that will be handwritten a (sic) elapse of time outside the 28 days allowed has been impossiable (sic) [i.e. impossible] to meet."
6. The written submissions of the appellant in relation to the leave issue did not identify a proper basis for the Tribunal to extend the time for filing of the appeal application. Instead, those submissions tended to dwell upon an issue about documents at the hearing (copies of which are before the Appeal Panel and were identified by the Tribunal according to the audio recording), and attempts by the appellant to contact the respondent, it would appear from the document, at a time prior to the hearing.
7. The respondent opposed leave to file the appeal out of time. Essentially the respondent's position is that the decision which was handed down is consistent with the only "independent" expert evidence which was presented before the Tribunal at first instance. That evidence was from a Consulting Automotive Engineer, Phillip J Scott, contained in an expert report, which in essence says that there is nothing defectively wrong with the vehicle about which the appellant seeks redress. In other words, the Appeal Panel understands the respondent to say that the decision was made correctly and that there are significant matters of cost, time and prejudice to the respondent if leave to file the appeal out of time were granted.

Adjournment Application

1. The applicant sought to adjourn the appeal. The reasons for doing that as provided to the Appeal Panel are essentially to enable the appellant to obtain more cogent evidence of the decision from which the appellant seeks to appeal. The respondent was unaware that the Appeal Panel hearing was occurring until the Panel made a telephone call to Mr Howlett, a Director of the respondent, because the respondent had apparently not received all the material which had been identified in the directions made by the Principal Member on 9 April 2015. As previously identified the respondent opposed the application by the appellant for an adjournment.
2. The respondent was clearly disadvantaged by the application for an adjournment of the Appeal, already presuming that the appeal had for some reason been abandoned. There was no material provided by the appellant to the respondent which would indicate any error in the original decision. Mr Howlett made it clear that the time and expense of defending this claim was prejudicial to his business. This prejudice was particularly heightened because it was not possible for the respondent to identify the precise basis upon which the application to appeal had been made.
3. The appellant referred in his written documents to someone employed by the respondent accepting full liability for the mechanical problems which he raised about his motor vehicle. Mr Howlett identified that at no time had anybody been authorised to admit liability on behalf of the respondent. The appellant when he appeared by telephone at the Appeal Panel hearing accepted that what Mr Howlett said concerning this particular issue "no doubt is right."
4. The appellant provided a disk which contained the recording of the hearing before the Tribunal on 18 December 2014. The appellant could not identify on the disk any reasons provided by the Tribunal which the Appeal Panel might be able to consider determining whether or not there was any substance to the application. The appellant has not applied for any further reasons after obtaining the disk. If an adjournment were to be granted the time period required before the appeal could be relisted as ready, could not be ascertained.

Relevant principles

1. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel there considered the principles which govern the granting of an extension of time. It was said by that Appeal Panel at [10] that: "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] NSWCA 369; (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] NSWCA 369; (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]."
2. An Appeal Panel, which included the President, considered the relevant principles for granting of extensions of time in Habib v State of New South Wales [2014] NSWCATAP 70 at [71]-[75], and referred to the decision of Jackson v NSW Land and Housing Corporation with approval. The Appeal Panel in Habib also referred to in section 36 and section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) which contain references to the judicial exercise of discretion in order to facilitate the just, quick and cheap resolution of real issues in proceedings, and referred to the perhaps self-evident fact that in order to exercise its discretion the Appeal Panel must have some material before it upon which it can base the exercise of its discretion.
3. An Appeal Panel of this Tribunal determined in Sayhoun v Owners Corporation Strata Plan 75123 [2014] NSWCATAP 112 at [17] in relation to an application for an extension of time, observed that the following principles are also applicable: "We are satisfied that the respondent would be prejudiced if an extension of time were granted. That prejudice may be addressed by an award of costs, although we note the remarks of the plurality in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [100] that Justice cannot always be measured in money and that a judge is entitled to weigh in the balance of the strain the litigation imposes on Litigants; and their approval (also at [100]) of Bowen LJ's statement in Cropper v Smith [1884] 26 Ch D 700 that: 'Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary.'"
4. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 an unanimous High Court stated: "In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effect not only upon the parties to the dispute but upon the Court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory applications which has regard to the wider objects of the administration of justice."
5. In Donna O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77, the Appeal Panel after referring to a number of authorities, including those referred to previously in these reasons, stated at [22]: "It follows that a number of principles apply to applications for an adjournment: 1. matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, 2. an application for an adjournment should be seen as the exceptional rather than the ordinary course; 3. where the adjournment is caused at least in part, by the delay of the party seeking the adjournment, or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment."

Determination

1. It can therefore be seen that an application for an adjournment and an application for leave to extend the time for filing a Notice of Appeal have been held to be subject to similar principles, with the wider objects of the administration of justice figuring prominently in the exercise of those discretions.
2. In this matter, the appellant was aware of the hearing date and should have been ready to proceed at that time. The appellant has been unable to identify the nature of the injustice which would be visited upon him if the matter were not to be adjourned and the appeal dismissed. The appellant would clearly be dissatisfied with such an outcome, but it is not apparent that there would be any injustice caused to the appellant.
3. The appellant paid a total of $19,154 on the date of the contract being 25 July 2012 for the purchase of a Suzuki Jimny Sierra JLX 1.3L manual car. The appellant says in his documents that he paid for a Dash Mat, alloy Grille guard and towbar and wiring which brought the total price to $20,750.
4. The appellant stated that he has a steering wheel which shakes every time the car goes over a road bump or he takes his foot off the accelerator throttle. The appellant relied upon a document prepared by his mechanic located in Ballina. That document confirmed that there is shaky steering which feels dangerous. The report provided by the respondent from Phil Scott Automotive Consulting has been commented upon by the applicant in handwriting and submitted as part of his evidence. A letter to the appellant from Suzuki dated 24 January 2013 states that nothing supports the appellant's concern that the vehicle is dangerous or acting beyond its approved design. The appellant apparently owned 3 Suzuki Sierra motor vehicles prior to this one. In essence, the appellant considers the problem a major defect.
5. The evidence relied upon by the respondent in the Tribunal was accepted by the Tribunal and, despite the arguments of the appellant in the Appeal Panel documents submitted, was not obviously flawed. That evidence of the Consulting Automotive Engineer states that after adjusting the tyre pressures to the manufacturer's specifications the harshness of the vehicle ride decreased and was smoother. The appellant had been advised by a tyre reseller to inflate the tyres beyond the vehicle manufacturer's recommended pressure. The front tyres were also observed to be in need of a wheel alignment. The NRMA road test report of the vehicle's model stated that the ride tended to be "harsh and choppy". That is, all vehicles of this make have the characteristic. The Consulting Automotive Engineer recommended that: 1. there be a wheel alignment conducted 2. that the tyres should be rotated in accordance with the vehicle manufacturer's recommendations, and 3. that tyre pressures should be maintained within the specifications of the vehicle manufacturer.
6. Accordingly, the evidence from the qualified expert is that there was no defect in the vehicle which could be identified by him. A rehearing of the evidence is unlikely to establish anything different to that conclusion. It is therefore concluded that an appeal is unlikely to succeed.
7. The respondent is entitled to presume that it has obtained a decision in its favour which will remain undisturbed if the appeal is not lodged within time, and more importantly, if the appeal as proposed is unlikely to succeed.
8. The application for an adjournment was made at the last minute and the existing delay has been caused solely by the appellant.
9. The appellant was unable to identify to the Appeal Panel when he would be in a position to run the appeal with all the material he might obtain in the future or indeed whether that material would be of any different substance to the material he had already filed.
10. The appellant is unable to provide adequate explanation for the failure to file the appeal within the time allowed.
11. The respondent is clearly prejudiced by the application for an adjournment, and for any subsequent application for extension of time in which to file the appeal. That prejudice is not able to be appropriately remedied by the payment of costs or any other condition which may be imposed.
12. There is no material identified to establish an appeal based on an error of law.
13. The decision in Collins v Urban (supra) at [65]-[79] identifies that leave to appeal may be granted when the Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision under appeal was not fair and equitable or was against the weight of the evidence. Neither of those bases have been established by the appellant on the material provided to the Appeal Panel.
14. The judicial exercise of discretion by the Appeal Panel must facilitate the just, quick and cheap resolution of real issues in proceedings, and in order to exercise its discretion the Appeal Panel must have some material before it upon which it can base the exercise of its discretion.
15. To the extent that it is necessary to do so, the Appeal Panel members observe that the prospects of success of the appeal, based upon the material which the Appeal Panel has been provided, are very minimal and there is little merit in the appeal. There is little material upon which the Appeal Panel could base the exercise of the discretion. The appeal as presently understood is unlikely to succeed, and any further delay is counter-productive to finalising the matter in accordance with the prime objective of the Tribunal. The judicial exercise of discretion to extend time or to grant leave to appeal has to consider whether that decision will facilitate the just, quick and cheap resolution of real issues in the proceedings.
16. The wider objects of the administration of justice to achieve a timely and cost-effective resolution of a dispute means that any further delay has effect not only on the parties to this dispute but extends to other members of the public who want to utilise the services of the Tribunal to resolve such disputes as they may have.
17. There is little utility in granting an extension of leave to appeal out of time when it is assessed as unlikely to be any basis to assert an appeal as of right, or any basis for leave to appeal to be granted.
18. Therefore, for the reasons which have been stated, the Appeal Panel makes the following orders: 1. The appellant's application for an adjournment is refused. 2. The application for leave to extend time to file the notice of appeal is refused. 3. 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: 08 September 2015