Hodges v Commissioner of Fair Trading

Application for extension of time

1. As we have indicated above the Decision was delivered on 10 November 2022. The time for lodging an appeal was 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): Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(c). The Appeal was filed on 7 February 2023.
2. Accordingly, the Appellant requires an extension of time in which to lodge his Notice of Appeal.
3. The relevant principles which inform the exercise of our discretion to extend time are well-known and were, for example, set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. Relevant factors to consider include length of the delay, reason for the delay, whether the Appellant has a fairly arguable case and the extent of any prejudice suffered by the Respondent.
4. The Appellant submitted that the reason for the delay was due to his ill health and hospitalisation in respect of his cancer condition.
5. He tendered pathology documents which named the referring Practitioner as an Associate Professor in Oncology, pharmaceutical authorisations and Royal North Shore Oncology day identification slips. Some of these documents are undated and some of these documents post-date 7 February 2023.
6. The Appellant accepted that some of these documents were dated after the date he lodged his Notice of Appeal.
7. The Respondent submitted there was no evidence of his hospitalisation in the relevant period, but conceded no specific prejudice arises from the late lodgement of the Notice of Appeal.
8. In the result and for all the reasons which follow, we are of the clear view that the appeal is not fairly arguable and, on this basis, we decline to extend the time for the lodging of the Notice of Appeal.

The Notice of Appeal

1. The Appellant was self-represented. Mr Nicoletti, Fair Trading Legal Services appeared for the Respondent.
2. As we understand the Appellant's Notice of Appeal and submissions before us, he essentially raises two grounds of appeal.
3. First, he contends that he was not given a proper opportunity to be heard and defend himself against the individual convictions that were on record against him, and that the Tribunal was biased against him. We accept that such a contention of denial of procedural fairness will amount to a question of law which can be pursued on appeal as of right.
4. The second ground of appeal, as we understand it, is that the Decision was 'unjust and unfair' essentially because the convictions were unfair and the product of police corruption and indeed the result of a campaign of persecution against the Appellant. This does not raise a question of law and leave to appeal is required.
5. In respect of the first ground, we note that on 22 February 2023 the Tribunal ordered the Appellant to lodge with the appeal registry by 22 March 2023 the following: (a) An amended Notice of Appeal which clearly articulates the grounds of appeal involving questions of law and any basis for leave to appeal; (b) All the evidence given to the Tribunal at first instance on which it is intended to rely; (c) Any evidence not provided to the Tribunal at first instance in making the decision under appeal, on which it is intended to seek leave to rely; (d) The Appellant's written submissions in support of the appeal including submissions in relation to an extension of time; and (e) A typed transcript of the relevant parts of the hearing and the oral reasons for decision, together with the sound recording of the entire hearing.
6. Despite the order above, the Appellant failed to provide any typed transcript of the relevant part of the hearing or the oral reasons for the Decision, together with the sound recording of the entire hearing.
7. This makes it impossible for us to deal with and determine the Appellant's claim of not being given a fair opportunity to be heard or of bias. This was pointed out to the Appellant during the hearing, and he accepted that he had not complied with the order.
8. Further and in any event, we note that Mr Nicoletti, for the Respondent, who appeared at the hearing below, outlined broadly the course of the proceedings. In summary, this was that before the Tribunal were the record of convictions of the Appellant stretching back to 1989 and including many motor vehicle offences, such as driving without a licence.
9. The Decision below, Mr Nicoletti informed us, was based on these convictions and also the failure to disclose the convictions at the relevant time.
10. After receiving the evidence, the Appellant gave evidence before the Tribunal and was cross-examined by Mr Nicoletti. His explanation for failing to disclose the convictions was explored in cross-examination. The Appellant then was given ample opportunity to address the Tribunal which he did.
11. Apparently then, according to Mr Nicoletti, the Tribunal gave oral reasons for not granting the licence and affirmed the original decision of the Respondent not to grant the licence on the basis of the convictions and the failure to disclose them. In addition, the Tribunal was not satisfied with the Appellant's explanation for not disclosing the convictions.
12. The Appellant agreed that the above summary by Mr Nicoletti was a fair summary of the course of the proceedings. Mr Nicoletti submitted on this basis that there was no ground for the suggestion that the Tribunal did not allow the Appellant to be heard or that the Tribunal was biased.
13. We agree with Mr Nicoletti's submission in this regard. Accordingly, this re-enforces our view that this ground of appeal is not fairly arguable.
14. The second ground of appeal is that the Decision was unfair and unjust and against the weight of the evidence. As we understood the Appellant's complaint in this regard, it was essentially two-fold.
15. First, he had sufficiently 'redeemed' himself from the time of the convictions and, secondly, the convictions were not fair. In respect of the latter, the Appellant refers to what he alleges is a campaign against him by police because of his own strident claims that sections of the police are corrupt. He also points to his political views which are well-known as giving rise to political and/or police resentment of him.
16. As we understand it, he contends that the convictions are a result of police animosity towards him.
17. This ground of appeal does not raise a question of law and leave to appeal is required.
18. The principles for the grant of leave to appeal are well-known and frequently the summary set out in Collins v Urban [2014] NSWCATAP 17 is citied. In short summary, ordinarily, it is appropriate to grant leave only in matters that involve an issue of principle, or there is a question of public importance, or there is an injustice which is reasonably clear, or a factual error that was clearly mistaken, or where the interests of justice require the decision to be reviewed.
19. We note that despite the orders of the Tribunal referred to above, the Appellant has not put before us the evidence that was before the Tribunal or the transcript of the proceedings before the Tribunal. Accordingly, as is the case with the first ground of appeal, it is just not possible for us to come to any view as to whether or not the Tribunal's Decision was wrong, unjust or unfair.
20. Further, based upon the summary of the hearing presented to us by Mr Nicoletti and accepted by the Appellant as a fair summary we are not able to conclude that there was any factual error whereby the Tribunal was clearly mistaken or that there is an injustice which is reasonably clear, let alone any issue of principle or a question of public importance or that the interests of justice require the Decision to be reviewed. Based on the accepted summary of the hearing below it appears to us that the evidence of the convictions of the Appellant, the failure to disclose the convictions when required and the Appellant's cross-examination before the Tribunal all founded a reasonable basis for the Tribunal's Decision.
21. We note that whilst the Appellant did not put before us the evidence before the Tribunal below, he did seek to put before the Appeal Panel new and different evidence from that which was before the Tribunal. This consisted, firstly, of email correspondence with the police setting out some of his complaints about police conduct and their responses. All of this material is dated before the Tribunal hearing. Further, the Appellant also sought to tender a newspaper cutting dated 4 June 2014 which referred to some of the political views of the Appellant.
22. The principles for receiving new evidence on appeal are well-known and have been summarised by the Appeal Panel in Ross v Commissioner of Police [2020] NSWCATAP 70 at [32] - [37]. Generally, the evidence must not have been available with reasonable diligence at the time of the original hearing and be likely to have produced a different result or the further evidence should allow the Tribunal to consider whether, with the benefit of hindsight, there has been a serious injustice that will, in fact, result from the exercise of the Tribunal's discretion to admit the evidence.
23. The Appellant provided no explanation for why this material was not provided before the Tribunal below. We are not satisfied that the material was not available with reasonable diligence at the time of the original hearing.
24. Further, we are of the clear view that the new evidence sought to be tendered has no probative value in respect of the Tribunal's Decision at first instance. We are certainly not satisfied that the material would have produced a different result in the Tribunal, and, assessing matters in hindsight, we are not persuaded that the Appellant has suffered any injustice let alone any serious injustice by that material not being before the Tribunal.
25. In coming to the above conclusion, we are mindful of the fact that in some circumstances the Tribunal may receive evidence as to the underlying facts behind a conviction in disciplinary or licencing matters: see Sudath v Health Care Complaints Commission [2012] NSWCA 171. The new evidence sought to be relied upon by the Appellant has no relevance to the underlying facts behind the convictions in question.
26. Accordingly, we are satisfied that this ground of appeal is not fairly arguable.
27. Accordingly, in our view, the Notice of Appeal as a whole is not fairly arguable.

Disposition

1. The orders of the Appeal Panel will be: 1. Application to extend time for lodging of Notice of Appeal is refused. 2. 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: 22 May 2023