Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 32, 54

Cases cited: Hussain v Farhmand [2016] ACTSC 122

Hussain v Farhmand [2015] ACAT 91

Jago v The Distrcit Court of New South Wales & Ors [1989] HCA 46; (1989) 168 CLR 23

Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251

Tribunal: Presidential Member G McCarthy (Presiding)

TRIBUNAL: Presidential Member G McCarthy (Presiding)

1. The appeal is dismissed.
2. By 2 January 2018 the appellant file and serve any written submissions he wishes to make as to why the Tribunal should not direct that he not make any further application arising from the Tribunal's decision of 10 August 2015 in matter XD104/2015 without the leave of the Tribunal.
3. By 9 January 2018 the respondent file and serve by email any submissions he wishes to make in reply to any submissions he receives from the appellant under order 2.
4. By 16 January 2018 the appellant file and serve by email any submissions he wishes to make in reply to any submissions he receives from the respondent under order 3.

1. The appellant, Mr Mohammad Hussain, appeals from a decision of the Tribunal (per President Neate[1]) given on 31 May 2017 dismissing what was Mr Hussain's second application for leave to file an appeal out of time against a decision of (then) General President Crebbin given on 10 August 2015.
2. On 10 August 2015, General President Crebbin ordered Mr Hussain to pay the respondent, Mr Farhmand, $1,788.90 in unpaid wages from when Mr Farhmand drove a taxi for Mr Hussain between July and December 2014, plus the tribunal filing fee of $135 (the substantive decision).
3. Mr Hussain's second application for leave to appeal the substantive decision out of time was also treated as an application to appeal out of time a decision of Appeal President Stefaniak given on 16 November 2015 dismissing Mr Hussain's first application for leave to file an appeal the substantive decision out of time.[2]

1. The matter has a long and tortuous history, as set out in President Neate's reasons for decision given on 31 May 2017. Those reasons were not published, but they comprehensively set out the relevant background to this appeal including findings and observations of Appeal President Stefaniak and of (then) Associate Justice Mossop who determined (on 10 June 2016) Mr Hussain's application for leave to appeal out of time to the Supreme Court of the ACT from the decision of Appeal President Stefaniak.[3]
2. We have therefore reproduced President Neate's reasons for decision in full.

PRESIDENT NEATE: This is the resumed hearing in Hussain - or Mohammad Hussain v Sayed Ashraf Farhmand, matter number AA 17 of 2017. Earlier today in the hearing I said that I would deliver reasons for decision and my decision this afternoon and I shall now read my reasons to you.

Mr Mohammad Hussain wants the ACT Civil and Administrative Tribunal to rehear a case brought against him by Sayed Ashraf Farhmand which was decided against Mr Hussain and in favour of Mr Farhmand in August 2015.

On 9 May 2017, Mr Hussain filed in the tribunal registry an application for appeal which was given the ACAT file number AA 17 of 2017. That document states that among other things Mr Hussain wants the tribunal to "reopen this proceeding".

He asks that the original orders made by the tribunal be set aside. He also seeks an emergency order as the respondent made an enforcement application in the Magistrates Court and Mr Hussain wants the orders made by the tribunal in August 2015 stayed or dismissed so that those enforcement proceedings can be delayed or discontinued.

On Sunday 14 May 2017 Mr Hussain sent the tribunal by email an application for interim or other orders - general - in which he sought the stay of any enforcement application by Mr Farhmand until these proceedings are reopened and a fresh hearing is done.

The two issues before the tribunal today are which decision or decisions Mr Hussain wants to appeal and second whether Mr Hussain should be granted leave to appeal outside the period specified in the Rules of the Tribunal.

To understand how this application came to be made and the factors said by Mr Hussain to support a reopening of his case and the grant of leave to appeal out of time it is necessary to set out the history of these proceedings.

In August, 2015, the previous General President of the tribunal heard Mr Farhmand's case.

In her decision dated 10 August 2015, General President Crebbin gave judgment for Mr Farhmand and ordered Mr Hussain to pay a total sum of $1,923.90 to him by close of business on 25 August 2015.

It appears that Mr Hussain attempted to lodge a Notice of Appeal in the Supreme Court of the ACT on 25 August 2015 intending to appeal the tribunal's decision handed down on the 10 August. That notice was rejected on the ground that there did not appear to be any evidence that Mr Hussain had appealed to the Appeal Tribunal before launching his notice to appeal to the Supreme Court.

He was advised by email dated Monday 31 August 2015 that the Supreme Court was unable to address the matter.

Mr Hussain sought to appeal to an Appeal Tribunal against the decision of General President Crebbin, but his appeal was lodged on 21 September 2015 some two weeks out of time.

Mr Hussain did not appear at the hearing of his application to appeal out of time scheduled for 16 November 2015. On that date, Appeal President Stefaniak ordered that the application for leave to appeal out of time be dismissed.

On 23 December 2015, Appeal President Stefaniak published his reasons for decision. He noted that as at 16 November 2015 no documentation supporting Mr Hussain's application for leave to appeal out of time had been received by the Tribunal. Consequently, the Tribunal was in the same position as President Crebbin was in terms of any evidence being put forward to back up the assertions made by Mr Hussain. Mr Hussain did not attend to prosecute his application to appeal out of time.

Appeal President Stefaniak continued and I quote:

"In this case, whilst it is fairly clear to me that the appellant was aware of how ACAT appeals worked as a result of his extensive experience in our jurisdiction, clearly he did not act. Without the benefit of hearing from him I cannot decide definitively whether he has a good excuse for not appealing in time.

However, one would think that an aggrieved litigant would at least put on some documentation of probative value to support his out of time application. One would also assume he would turn up to prosecute his application but regardless of this no further evidence of anything was forthcoming from him to back his claims."

As to the possible merits of Mr Hussain's appeal, Appeal President Stefaniak wrote:-

"The appellant and his company had not obeyed the subpoena issued in the original tribunal. He did not supply any proof to back up his claim that he did not owe the respondent any money or who did owe the money. The respondent did comply with the subpoena directed to him. President Crebbin made orders in relation to the subpoena and then the further orders as set out above."

Later in the decision Appeal President Stefaniak wrote:

"The evidence before President Crebbin and the additional evidence in the form of the cheque before me combined with the lack of evidence by the appellant convinces me that there appears to be no grounds for appeal as there is no evidence brought to assist the appellant's assertions. Whatever merits he may gain from appealing in time to the Supreme Court and then being out of time to appeal to ACAT is wiped out by the apparent lack of merit of his case."

Mr Hussain sought to appeal to the Supreme Court but did not do so within 28 days of Appeal President Stefaniak's decision. That period ended on 15 December 2015. His application was filed perhaps on 8 January 2016 three and a half weeks outside the prescribed period. It was accepted for filing on 27 January 2016.

There followed a series of listings at which Mr Hussain did not appear although his wife did appear on his behalf on two occasions. After these delays Associate Justice Mossop, as his Honour then was, ordered that Mr Hussain file and serve any further written submissions by 27 May 2016.

Mr Hussain filed an affidavit containing further submissions purportedly in accordance with that order.

Associate Justice Mossop issued written reasons for decision on 10 June 2016. He wrote that having balanced the relevant factors in favour of and against the granting of an extension of time,

"the case is not a strong one for an extension of time. There is no adequate explanation for the delay in making an application for leave to appeal."

However, his Honour thought it necessary to take into account the merits of the application for leave. He reviewed in some detail the opportunities Mr Hussain had to put forward to the court any matter which he would have put before Appeal President Stefaniak, had he attended the hearing on 16 November 2015. In particular, Mr Hussain had the opportunity to put any evidence which he would wish to in order to demonstrate that a question of fact or law was wrongly determined by General President Crebbin. That evidence was not put to Associate Justice Mossop and was not otherwise available.

"Because of the lack of merit in any appeal, even if I had extended the time in which the application for leave to appeal could be filed I would have refused leave to appeal. The lack of merit in the appeal combined with the other factors to which I have referred above makes it clear that an extension of time in which to make the application for leave should be refused. It is therefore appropriate to dismiss the application."

Mr Farhmand subsequently sought to have the order made by General President Crebbin enforced. He commenced proceedings in the Magistrates Court. Mr Hussain did not attend the hearing on 8 March 2017. The matter was listed on subsequent dates.

When Mr Hussain commenced the present proceedings before this tribunal the proceedings in the Magistrates Court were adjourned or stayed.

As noted earlier Mr Hussain filed his application for appeal in the Tribunal Registry on 9 May 2017 and subsequently provided his application for interim and other orders.

The journey between the filing of the original application for appeal on 9 May and the hearing today has not been easy and Mr Hussain has been afforded some latitude by the tribunal.

On 22 May 2017, the Tribunal Registry received an email from Mrs Mohammad - also known as Ruby Rahman - advising that the enforcement matter was scheduled in the Magistrates Court at 9.00 am on 24 May 2017 and asking for details of Mr Hussain's matter so he could advise the Magistrates Court about his appeal.

The hearing of this application for interim or other orders was listed for hearing on 25 May 2017. A listing notice to that effect was sent to the parties on 22 May 2017. It was not until 23 May 2017 that Mr Hussain informed the Tribunal Registry by email that he had proceedings in the Supreme Court of New South Wales which was stood over for directions to 25 May at 9.00 am in Sydney.

In that email he advised that the Supreme Court gave him that date on 7 April 2017 more than a month earlier. He requested an adjournment of the hearing of this application until the end of July.

On 25 May 2017 these proceedings were adjourned until 31 May 2017 and a notice of the change of hearing was sent to the parties.

It appears that Mr Farhmand took unpaid leave from his work on 25 May 2017 and consequently suffered financial detriment from the adjournment at short notice.

On 30 May 2017 Mr Hussain sought the further adjournment of the hearing from today's date. That request was not granted.

Although numerous matters are listed in the documents for the requested appeal, the issue presently before this Tribunal is whether Mr Hussain should be granted an extension of time to lodge his appeal against the decisions of Appeal President Stefaniak and General President Crebbin. The resolution of that issue involves consideration of the relevant ACAT Act and Rules and decisions of the tribunal and courts about circumstances in which such extensions of time will or will not be granted.

Section 79 of the ACAT Act allows a party to appeal a decision made by an original tribunal on a question of fact or a question of law. Appeals are considered within the tribunal by an Appeal Tribunal. A notice of appeal must be filed no later than 28 days after the day the original decision is made.

Once time runs out, the party has to apply for leave to appeal out of time. No specific form has to be used but the application must have a draft notice for appeal and must have a statement showing the nature of the case, the questions of fact or of law, what the person says are involved in the appeal and explain why leave should be granted.

An application for leave to appeal out of time is not an appeal in itself and a decision about such an application is not a decision of an appeal tribunal. There is no appeal unless leave is granted.

The principles that the Tribunal must follow when considering an application for leave to appeal out of time are well-established and used regularly by courts and tribunals. In the case of Concerned Citizens of Canberra Incorporated v The Chief Executive Planning and Land Authority, his Honour Justice Refshauge repeated the principles he had set out in an earlier case and I quote -

1. Time limits are important and must prima facie be obeyed.

2. In order to justify a court acceding to an application to extend time there must be some material on which the court can exercise its discretion.

3. Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so.

4. There should be an explanation for the delay, as to which any action (other than to appeal) that has been taken by the applicant is relevant.

5. The court must consider any prejudice to the respondent in defending the proceeding as caused by the delay and any such prejudice would tell against the extension.

6. The mere absence of prejudice is not enough to justify the extension of time.

7. The merits of the appeal must be taken into account in deciding whether an extension of time should be granted.

8. The court, on considering an application for an extension of time within which to appeal should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the appellant has a strong case.

9. Nevertheless, the application is to be determined by the court's view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formulae.

10. In particular the court will look above all else to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an over-riding consideration.

In essence, the principles require the tribunal to consider the applicant's explanation for delay, any prejudice to the other party, the merits of the proposed appeal and whether justice requires the application to be allowed.

Considering the merits of the proposed appeal in the context of an application for an extension of time to appeal requires the tribunal to consider whether there is an arguable basis for concluding that the original tribunal has made an error of fact or law that is material in the sense that it is an error that might make a difference to the outcome of the case.

In terms of the reasons for delay in this case the application for appeal was lodged some 21 months after the original decision of the tribunal, 18 months after an application for leave to appeal out of time was dismissed by the tribunal and 10 months after the decision of Associate Justice Mossop.

By the criteria set out above Mr Hussain needs to provide a compelling case for an extension of that magnitude to be granted.

According to Mr Hussain at today's hearing, he commenced the present proceedings in May this year because of the enforcement proceedings in the Magistrates Court. He says he was told he had to get the tribunal's decision set aside in order to stop those proceedings. That is no reason to grant him an extension of time in which to appeal.

In his application for appeal, Mr Hussain refers to being "devastated with my health issue" at the time of preparing a document which he said impeded him locating the file number of one decision to which he referred. Despite the provision of numerous medical certificates and other associated documents, such as doctor's letters, which demonstrate aspects of Mr Hussain's ill-health, particularly a heart condition, there was nothing to suggest that his health or his ill-health had delayed the making of the application for appeal for a significant period, if at all.

On the other hand, Mr Farhmand has been prejudiced by the fact that proceedings he had to commence to enforce the tribunal's orders in August 2015 have had to be delayed on a number of occasions because of Mr Hussain's failure to participate and then to be adjourned because of these proceedings.

In various ways he has been and remains financially disadvantaged by Mr Hussain's failure to pay the amount which the tribunal ruled is due to Mr Farhmand and the costs and losses he has incurred in pursuing the payment of that money.

He will be further prejudiced if the matter were to go to a new hearing without any real prospect that the result will be different.

Not surprisingly, Mr Farhmand contends that he would like to move on with his life and would like the matter resolved quickly.

Under section 82 of the ACAT Act the tribunal may, as the tribunal considers appropriate, deal with an appeal as a new application or as a review of all or part of the original decision in the application by the tribunal.

According to his appeal documents Mr Hussain asserts that the original tribunal reached the wrong conclusion because President Crebbin did not listen to his case and "failed to accept the truth".

As I understand some of his statements Mr Hussain is concerned that he was not believed and that the tribunal preferred the evidence of others. Mr Hussain wrote that the Appeal President "did the same as the Tribunal President". And Mr Hussain is "not sure of the reason behind it".

I observed that that suggestion is disingenuous given that written reasons for the decision were published. I have quoted from them earlier in these reasons for decision.

Mr Hussain also refers to the outcomes in other cases before the tribunal in which he was involved but which are not the subject of this application. It seems, however, that his perception of how he is dealt with on those occasions has influenced the present application.

"mentioning these all case references only to show to the tribunal how many times I have been wrongly and badly abused and get punished from this tribunal members without any crime or wrongdoing."

"I am seeking justice and a new fair hearing by a neutral member who will be able to find out I am not the party of the proceedings and that I should not be punished. Please reopen the case and allow me to provide my case to proof again that I am not a party at all. Please allow my appeal application if even if it is out of time for the sake of justice. I am seeking the tribunal's permission to grant my appeal application."

If he were to be granted leave to appeal out of time the appeal documents state that he wants a new fair hearing and the reopening of this case to allow him to prove his case. At the hearing today Mr Hussain repeatedly referred to cheque books and marked envelopes which he said would make it crystal clear that he did not owe any money to Mr Farhmand.

As a result of questioning from the tribunal I understand Mr Hussain to say that all of those documents existed at the time of the hearing before President Crebbin but were not provided to her either in response to the subpoena or otherwise.

Mr Hussain seemed to suggest that the documents were with his accountant for tax and GST purposes at the relevant time. That does not explain why they could not have been produced at the hearing in response to the subpoena or otherwise.

Mr Hussain repeatedly asserts that he is not a party to these proceedings by which I understand him to say that he is not the owner or operator of the taxi that Mr Farhmand was driving.

The fact remains that he is a party to these proceedings and has not previously convinced the tribunal that he should not be, despite opportunities to do so. If as he says all these documents were available at the time of the hearing he had ample notice of the hearing and an opportunity, if not an obligation pursuant to a subpoena to produce that evidence. For whatever reason he did not do so.

To the extent that the evidence might have been relevant to the outcome of the proceedings it was not available to General President Crebbin. It is too late to come to the tribunal 21 months later and say that the original tribunal should have made a different decision based on evidence that it did not have but could have had on that occasion.

It follows that Mr Hussain has not satisfied me that he has a strong case on the merits for both decisions to be set aside and a new hearing to be ordered.

It is not uncommon for an unsuccessful party to proceedings in a court or a tribunal to feel aggrieved, particularly if the reasons for decision suggest or state that their evidence was not believed and the evidence of one or more other persons was believed. That is why judicial and quasi-judicial systems provide an appeals process.

However, the appeals process is not open-ended. It is understandable that rules apply to regulate it otherwise there would be no end to litigation and no certainty in the outcome of any particular case. I need not repeat the points set out earlier other than to note in summary that time limits are important and must usually be obeyed.

Finality in litigation is important. There must be a sound explanation for the delay in making an appeal, the prejudice to the respondent in defending the proceedings as caused by the delay will tell against an extension of time, the merits of an appeal must be taken into account in determining whether an extension of time should be granted, particularly where there has been a long delay in making the appeal and overall it is necessary to decide whether, if the application is refused, there will be a miscarriage of justice.

In these proceedings the reasons advanced by Mr Hussain for the lateness of his appeal and hence the need to apply for leave to appeal out of time are not persuasive.

As the passages from the decisions of Appeal President Stefaniak in late 2015 and Associate Justice Mossop in June 2016 demonstrate, others who have dealt with precisely this issue have been unconvinced on procedural and merit grounds to grant extensions of time in which Mr Hussain can appeal.

In order to have any opportunity to revisit the decision of General President Crebbin Mr Hussain has first to have the decision of Appeal President Stefaniak set aside. He failed in an attempt do so before Associate Justice Mossop in the Supreme Court. Nothing he has put to this Tribunal convinces me to come to a different conclusion.

I have gone into some detail in recounting the chronology of events leading to the hearing today and dating back at least as far as the hearing before General President Crebbin in August 2015. I have done so for the purpose of demonstrating the tortuous process which has repeatedly been ruled to lack merit. It is too late for Mr Hussain to come along to this Tribunal seeking what he describes as a "just outcome" which, on his submission would be crystal clear were he given a completely new hearing by a neutral tribunal.

These proceedings must have an endpoint. That point has been reached today.

Mr Hussain's application for leave to file an appeal out of time against the decisions of General President Crebbin and Appeal President Stefaniak is dismissed. So your application is dismissed. They're the reasons for it. We will adjourn the tribunal.

1. Despite President Neate's belief, the proceedings had not reached an "endpoint": Mr Hussain appealed. He contended in his application to appeal:

All these proceedings [the court or tribunal] does not have the evidences that how much I paid the other party by cheque and was the reason they made their decision against me.

1. In his application to appeal, Mr Hussain again contended that the substantive decision should be set aside, a fresh hearing date be given and that the tribunal should take into account "new and fresh evidences". However, as noted by President Neate in his reasons for decision, Mr Hussain was previously given the opportunity to produce further evidence to Appeal President Stefaniak and to Associate Justice Mossop, but did not do so. Also, as noted by President Neate in his reasons, all of the documents by way of further evidence on which Mr Hussain wished to rely existed at the time of the hearing before President Crebbin but were not provided to her either in response to the subpoena or otherwise.
2. Mr Hussain's resistance to the Tribunal's efforts to hear his application to appeal from the decision of President Neate is also noteworthy.
3. The appeal was listed for hearing on 23 August 2017, but was relisted for hearing on 17 August 2017 because Mr Hussain advised that he had a medical condition.
4. On 14 August 2017, Mr Hussain informed the Tribunal by email that he was not available to attend the hearing on 17 August 2017 because of his medical condition. He relied on a medical certificate stating that he "will be unfit for work/stressful activities from 10/08/2017 to 10/11/2017 inclusive." The Tribunal vacated the hearing date.
5. On 7 September 2017, the Tribunal Registry offered the parties a hearing of the appeal on 20 or 22 September 2017 or 13 October 2017. The Tribunal Registry noted the opinion of Mr Hussain's treating doctor that Mr Hussain would be "unfit for work/stressful activities" until 10 November 2017, but took into account the Tribunal's overarching obligation to ensure that the application was resolved as quickly as is consistent with achieving justice not just for Mr Hussain but also for Mr Farhmand.
6. On 8 September 2017, Mr Hussain's wife on Mr Hussain's behalf provided another medical certificate advising that Mr Hussain was "to avoid any stressful situation for next three months" (sic) and requested the Tribunal to set a hearing date "after middle of December 2017 accordingly".
7. The Tribunal acknowledges that Mr Hussain had a medical condition that required surgery on 13 August 2017 but was not persuaded that it warranted a complete halt to this appeal proceeding for more than three months. The Tribunal must take into account not just Mr Hussain's interests but also Mr Farhmand's interests.
8. On 13 September 2017, the Tribunal gave a notice to the parties under section 54 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) that it proposed to decide the appeal without holding a hearing. The notice referenced the prior decisions of the Tribunal in 2015 and of the Supreme Court in 2016 and the hearing dates for the current proceedings that Mr Hussain had declined. The notice set out dates by which it proposed to give the parties time to provide written submissions in relation to the appeal. The notice also stated that if either party wished to make representations about the proposal to decide the appeal without holding a hearing, the party must make those representations by 5.00pm on 29 September 2017. The notice stated that, after considering any representations received, the Tribunal would decide whether or not to hold a hearing.
9. On 13 October 2017 Mr Hussain responded to the Tribunal by repeating the matters set out in his wife's email of 8 September 2017, and advising of other litigation in which he is a party, in NSW, Victoria and the ACT. He requested until December 2017 to make a submission in this appeal, and a hearing date after 15 December 2017.
10. On 16 October 2017, Mr Farhmand made a submission to the Tribunal. His submission began with the following observation:

For less than $2000 my wages, I spend around $4000 plus time. As a Judge put yourself on (sic) my position and then thinks if you coming to the court but the court cannot solve the problem for three years. How much mentally and physically I suffered from this case. How much it disturbs my family life and study.

1. Mr Farhmand relied on the decision of Appeal President Stefaniak given on 16 November 2015 and quoted from it as follows:

The appellant is an experienced litigant, albeit a lay one. He has had over the years some 61 matters listed in his name before ACAT and previous tribunals and 29 listed in the name of his company M M International (Australia) Pty Ltd.

1. Mr Farhmand also referred to the passages from the decision of Appeal President Stefaniak quoted by President Neate in his reasons for its decision.
2. On 18 October 2017, the Tribunal ordered that it would determine the appeal without holding a hearing, and set a timetable for the parties to file and serve any written submissions they wished to make in relation to the appeal. Mr Hussain was ordered to file and served any submissions by 1 November 2017, Mr Farhmand by 8 November 2017 and Mr Hussain to file anything in reply by 15 November 2017.

1. On 1 November 2017, Mr Hussain provided a three-page typed statement, passages from which were as follows:

I am totally upset and depressed to see the tribunal's order on 10 August 2015 the amount of $1,923.90. There was no evidence as how this amount calculated and no proof before the tribunal and tribunal ever asked from the respondent any evidence of his claimed amount details.

The respondent accepted on 31 May 2017 before Tribunal President G Neate, that he only made his claim based on his guess no real figures evidences he produced ever.

I provided my all the bank cheque details with the number and date of payment, and tribunal did not take into account that confession of the respondent.

I mentioned to the ACAT several times this true facts but the ACAT Member's failed to acknowledge that facts and they failed to deliver fair justice to me.

1. Mr Hussain complained that he did not receive Mr Farhmand's documents, as filed on 16 October 2017, but noted that on 18 October 2017 the Tribunal forwarded a copy of the documents to Mr Hussain.
2. Mr Hussain continued:

I am not going through all of the documents submitted by the respondent on 16 October 2017 and I need to see through the Tribunal the evidence of his claim amount.

I need the transcript of 10 August 2015 (before President Crebbin) and 16 November 2015 (before Appeal President Stefaniak) as I do not know what happened there in my absence.

1. Mr Hussain also provided a single page typed document listing 20 cheques that, he says, were given to Mr Farhmand totalling $5,885.12 and the dates in 2014 upon which he says they were "banked". He provided a page of the transcript of the hearing before President Neate on 31 May 2017 in which Mr Farhmand agreed that he had made an estimate of the amount he was owed.[4]
2. By email sent on 1 November 2017 Mr Farhmand asserted that the single page typed document that "Mr Hussain provides regarding to payment is not genuine and trustful. Because it [is] created by him. ... Mr Hussain is a great liar."
3. Mr Farhmand provided a letter from the Commonwealth Bank of Australia which states that a cheque Mr Hussain claimed in his single page document had been "banked" had then been dishonoured.
4. By email sent on 8 November 2017, in reply to Mr Farhmand's claim that Mr Hussain's document listing 20 cheques is "fake", Mr Hussain said:

I ordered to my bank for these cheque's statement and will get soon and I will proof it is 100% correct not like his claim false and vexatious based on assumption and guess.

1. Under section 79 of the ACT Civil and Administrative Tribunal Act 2008 an appeal may be brought from a decision on an application by the Tribunal, on a question of fact or law. The focus of the appeal, at least initially, is the identification of an error of fact or law, and determination as to whether such error was material to the outcome.
2. Despite President Neate's detailed reasons for decision, Mr Hussain made no attempt to identify error on the part of the Tribunal in those reasons. Rather, he ignored the Tribunal's decision and simply repeated his complaint that there was "no evidence" as to how the amount President Crebbin ordered to be paid was calculated. He also repeated that he had provided evidence, including cheque details about his payments to Mr Farhmand, to show (he said) that he had paid Mr Farhmand.
3. The submissions provided to the Appeal Tribunal by Mr Hussain focussed on proposed further evidence on which he would rely to demonstrate that the substantive decision was incorrect.
4. The Appeal Tribunal has nonetheless considered whether Mr Hussain's areas of complaint might be formulated so as to amount to an error of fact or law on the part of the Tribunal.
5. As President Neate noted in the opening paragraphs of the reasons for decision given on 31 May 2017, the issue before him was whether Mr Hussain should be given leave to appeal against the decisions of the Tribunal (per President Crebbin and Appeal President Stefaniak) outside the period specified in the Rules of the Tribunal. President Neate outlined the principles to be applied in determining an application for leave to appeal out of time:

In essence, the principles require the tribunal to consider the applicant's explanation for delay, any prejudice to the other party, the merits of the proposed appeal and whether justice requires the application to be allowed.

1. President Neate noted in relation to reasons for delay:

The application for appeal was lodged some 21 months after the original decision of the tribunal, 18 months after an application for leave to appeal out of time was dismissed by the tribunal and 10 months after the decision of Associate Justice Mossop.

By the criteria set out above Mr Hussain needs to provide a compelling case for an extension of that magnitude to be granted.

According to Mr Hussain at today's hearing he commenced the present proceedings in May this year because of the enforcement proceedings in the Magistrates Court. He says he was told he had to get the tribunal's decision set aside in order to stop those proceedings. That is no reason to grant him an extension of time in which to appeal.

1. President Neate was not persuaded that Mr Hussain had made a compelling case for leave to appeal 21 months after the substantive decision of President Crebbin and 18 months after dismissal of the first application for leave for leave to appeal, and therefore dismissed the application. We cannot find any error in President Neate's approach to the question of delay. Similarly, there was no error in President Neate's consideration of the prejudice to Mr Farhmand which would have arisen if leave to appeal out of time had been granted.
2. We next had consider President Neate's approach to the merits of the case, and the question of the interests of justice.
3. In relation to Mr Hussain's submission that there was "no evidence" for factual findings in the substantive decision, and that Mr Hussain had further evidence which would prove those findings of fact were wrong, President Neate dealt with both these issues in his reasons for decision. President Neate quoted from Appeal President Stefaniak's earlier decision where he too had dealt with those claims.
4. In his submissions filed on 1 November 2017, Mr Hussain relied on the transcript of the hearing before President Neate on 31 May 2017 where Mr Farhmand agreed that he had made an estimate of the amount that Mr Hussain owed him. On this basis, Mr Hussain submitted that Mr Farhmand "made his claim based on his guess no real figures evidences he produced ever". However, on the same page of the transcript, Mr Farhmand went on to explain to President Neate, as noted previously by Appeal President Stefaniak, that he made an estimate because Mr Hussain (and his wife) did not produce documents that they were required to produce to the Tribunal (per President Crebbin) under subpoena that may have enabled more accurate calculations to be made.
5. Regarding cheque books and other documents that Mr Hussain contended would make it "crystal clear" that he did not owe Mr Farhmand any money, as President Neate noted in his reasons for decision, Mr Hussain agreed that all of those documents existed at the time of the hearing before President Crebbin, but were not provided to her either in response to the subpoena or otherwise. They were likewise not produced to Appeal President Stefaniak or to Associate Justice Mossop, despite Mr Hussain being given the opportunity to produce them.
6. That pattern has continued. For example, in his email to the Tribunal sent on 8 November 2017 Mr Hussain referred to bank statements from 2014 that he "will get soon" that could have been produced to President Crebbin and to Appeal President Stefaniak in 2015 and to (then) Associate Justice Mossop in 2016.
7. Mr Hussain's complaints to the Appeal Tribunal from the decision of President Neate do no more than go over issues that have already been repeatedly dealt with. We do not consider that President Neate made any error in his approach to Mr Hussain's claims about lack of evidence, or further evidence, in his decision.
8. In this case, Mr Hussain has not persuaded us of any error on the part of President Neate for dismissing his application for leave to appeal out of time, and his appeal from that decision will therefore be dismissed.

Repeated applications for leave to appeal out of time and abuse of process

1. As President Neate's reasons for decision, there is a public interest in the finality of litigation. Against that background, it may seem a curious feature of this case that the legislation permits more than one application for leave to appeal out of time to be made. This may be to enable justice to be done in the rare cases where new and significant evidence comes to light that was not previously known about or available. However, the lack of an express limit also provides the potential for justice to be delayed and denied.[5]
2. To be properly brought, any second or subsequent application for leave to appeal out of time cannot merely repeat or rely upon arguments that have already been heard and ruled upon in an earlier application for leave. In our view, an application for leave to appeal of that kind, or brought for an ancillary purpose, amounts to an abuse of process.[6]
3. The chronology of the litigation, and the content of Mr Hussain's communications to the Tribunal satisfied us that Mr Hussain filed his second application for leave to appeal out of time in May 2017, and then appealed from the decision to dismiss that application, solely to forestall Mr Farhmand's enforcement of an order of which Mr Farhmand has had the benefit for more than two years.
4. Mr Hussain has repeatedly engaged the legal processes of the Tribunal, and the Supreme Court, not to obtain access to justice for himself but to deny Mr Farhmand. His manifest tactic is to use the Tribunal's processes for the purposes of avoidance and delay.
5. Section 32 of the ACAT Act provides that the Tribunal may, on its own initiative, make certain orders if satisfied that an application is lacking in substance or is an abuse of process. We have concluded that Mr Hussain's application to appeal was both. We propose therefore to direct under section 32(2) of the ACAT Act that Mr Hussain not make a subsequent application to the Tribunal concerning the substantive decision without the leave of the Tribunal.
6. We will make orders enabling Mr Hussain and Mr Farhmand to provide by stated dates written submissions as to whether section 32 applies and, if so, whether the Tribunal should make the proposed direction. After the ordered dates, we will consider the submissions received (if any) and then decide whether to make a direction under section 32.

[1] Because of the multiplicity of decisions referred to, in order to avoid confusion in these reasons each Tribunal will be referred to by the name of the relevant Member

[2] Hussain v Farhmand [2015] ACAT 91

[3] Hussain v Farhmand [2016] ACTSC 122

[4] Transcript of proceedings, 31 May 2017, page 61, lines 5-7

[5] Jago v The Distrcit Court of New South Wales & Ors [1989] HCA 46; (1989) 168 CLR 23 at [20]

[6] Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at [16]