Jackson v NSW Land and Housing Corporation

NCAT Appeal Panel|2014-05-19|Before: Wright J

Introduction 1The appellant is a tenant of residential premises in Dubbo. She has sought an extension of time in which to appeal against orders made by the Tribunal in application SH 14/02239 on 30 January 2014 (Original Orders). The Original Orders included orders terminating the residential tenancy agreement and requiring possession to be given on 7 February 2014 to the landlord, New South Wales Land and Housing Corporation, the respondent in the present proceedings. 2For the reasons given below, the Appeal Panel has concluded that the application for an extension of time in which to appeal should be dismissed and consequential orders dismissing the appeal and lifting the stay of the Original Orders should be made. Although this appeal may have been overtaken by subsequent proceedings between the same parties, the Appeal Panel has taken the opportunity presented by this matter to set out some of the principles that apply in relation to applications for extensions of time in which to appeal from a decision of a Division of the Tribunal to the Appeal Panel, how those principles are to be applied in the present matter and other related considerations.

Background 3After a hearing on 30 January 2014, the Consumer and Commercial Division of the Tribunal ordered that the appellant's residential tenancy agreement with the respondent be terminated on the ground that the appellant had breached the agreement by causing or permitting a nuisance or by interfering, or causing or permitting interference with the reasonable peace and comfort and privacy of neighbours. The Tribunal had jurisdiction to make the Original Orders by virtue of the provisions of the Residential Tenancies Act 2010 (NSW) (RT Act). 4The appellant (the respondent below) did not appear at the hearing of the matter on 30 January 2014. The record of the hearing before the Tribunal on that day included the statement that the Tribunal was satisfied that service of notice of the hearing had been duly served on the appellant. Further, the Tribunal recorded that the respondent (the applicant below) gave sworn evidence that in discussions with the appellant she confirmed she had received the Notice of Hearing. The Tribunal also noted briefly the evidence relied upon by the respondent in support of the orders then being sought. 5There is no assertion in the material provided by the appellant in relation to the present appeal and related applications that the appellant did not have notice of the hearing on 30 January 2014. The appellant does not assert, and there is nothing to suggest, that the appellant made any attempt to contact the Tribunal prior to the hearing, to ask for an adjournment of the hearing, to seek to appear by telephone at the hearing or to have someone appear on her behalf.

Notice of Appeal 6On 4 March 2014, the Western Aboriginal Tenants Advice and Advocacy Service lodged a Notice of Appeal on behalf of the appellant under s 80 of the Civil and Administrative Tribunal Act 2013 (the Act). In that notice, the appellant sought an extension of time in which to appeal, a stay of the original orders and leave to appeal. In addition, she sought to have a hearing of the appeal in Dubbo and made submissions on why she did not want any hearing of the substantive appeal to be on the papers. 7The appellant indicated that she did not object to the application for an extension of time and the application for the stay being dealt with on the papers. It can also be noted that under s 50(1)(a) it is expressly provided that an application for leave to appeal in a matter such as the present may be dealt with on the papers. 8Before noting the grounds of appeal relied upon, it is important to appreciate that although the form is called a Notice of Appeal it does not necessarily mean the party is lodging an appeal as of right. The Tribunal's Notice of Appeal form allows a party seeking to appeal to complete just one form whether the party is asking for an extension of time in which to appeal, asking for leave to appeal, seeking a stay of the orders or decision appealed from or simply appealing as of right from an internally appealable decision. In addition, the form allows the party to request a hearing in a location other than Sydney and to provide other information, submissions and evidence. This course has been adopted in the Tribunal having regard to the requirement that the Tribunal act with as little formality as the circumstances of the case permit and without regard to technicalities or legal forms (s 38(4) of the Act) and the requirement that the Tribunal's practice and procedures should be implemented so as to facilitate the resolution of issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings (s 36(4) of the Act). Having one multipurpose form has the benefit that a person seeking to appeal from an internally appealable decision of the Tribunal only has to obtain and complete one form so that there is greatly reduced scope for procedural confusion and technical mistakes. In addition, an applicant for an extension of time or for leave to appeal does not have to file a draft notice of appeal in addition to their application. In these circumstances and for the sake of simplicity, a party completing a Notice of Appeal form is called an appellant, even if technically that party might more precisely be considered to be merely an applicant for an extension of time in which to appeal or an applicant for leave to appeal. 9The appellant's grounds of appeal which she sought to raise if her application for an extension of time and leave to appeal were successful were as follows: 11B. Grounds of appeal: 1. I (the respondent) was unable to attend the formal hearing at the Tribunal on 30 January 2014 because I was required out of town to assist my family with organising two funerals in separate towns 300 kms outside of Dubbo. 2. I made an application to NCAT to have the orders made on January set aside after the matter was heard in my absence. This application was denied on the grounds that I did not make attempts to call the tribunal and/or arrange a telephone hearing. Given the tragic circumstances that I was required to deal with at the time, I do not believe that the reasoning used in determining my set-aside application shows an understanding of Aboriginal cultural values and customs. Aboriginal cultural customs require me to assist with funerals when asked to and make attendance at funerals compulsory. 3. Because I have not been given the opportunity to respond to the case against me, it is my submission that I have not been afforded procedural fairness in this matter. The decision of the NCAT on 30 January was therefore not fair and equitable. 4. As I was not able to present any evidence at the hearing. There is significant new evidence that I am able to present to the Tribunal on the matter. Stay and Directions 10On 4 March 2014 (although the orders are correctly dated, the letter notifying the parties of the orders appears to have been incorrectly dated 4 February), in response to the appellant's application for a stay, the Appeal Panel made an order staying the Original Orders in order to preserve the subject matter of the appeal pending further consideration of the various applications made in the Notice of Appeal. At the same time, directions were made as follows: 2. On or before 11 March 2014 appellant to file and serve: (a) all evidence in support of the appeal and application for leave; (b) submissions, including in relation to any question of law and why the matter should not be dealt with on the papers. 3. On or before 18 March 2014 the respondent is to file and serve any submissions in response to the appellant's submissions (set out 2(a) and (b) above). 4. On or before 24 March 2014 the appellant is to file and serve any evidence and submissions in reply. 11The appellant applied for an extension of time in which to comply with direction 2 and was granted an extension until 14 March 2014. A corresponding extension of time was allowed to the respondent so that it was not required to comply with direction 3 until 21 March 2014. The time for reply evidence under direction 4 was not extended. 12In the letter in which the appellant and respondent were informed of the extensions of time, the Tribunal also expressly noted that: The appeal application does not set out why different orders should have been made and simply contend [sic] that the appellant did not have the opportunity to present a response - despite having notice of the hearing. 13Notwithstanding the extension of time granted to her, the appellant did not file any submissions or evidence. The respondent provided its submissions on 20 March 2014. No evidence or submissions in reply were received from the appellant.

Application for Extension of Time in which to Appeal 14The appellant properly applied for an extension of time in which to appeal in the present case by ticking the relevant box in section 13 of the Notice of Appeal form. This satisfied the requirement under rule 8 of the Civil and Administrative Tribunal Rules 2014 (the Rules) that an application for an extension of time under s 41 of the Act is to be in writing. 15The appellant did not ask for reasons to be given under s 62(2) of the Act. In these circumstances, rule 24(4)(b) of the NCAT Interim Rules 2014 and, after 7 February 2014, rule 25(4)(b) of the Rules required an internal appeal from a decision in a residential tenancy matter to be instituted within 14 days of the date on which the appellant was notified of the decision. The appellant stated on her Notice of Appeal that she was notified of the decision on 30 January 2014. Accordingly, she was required to lodge her appeal on or before 13 February 2014. It was not lodged until 4 March 2014. 16Section 41 of the Act permits the Tribunal to grant an extension of time and is in the following terms: (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. 17As has been noted above, the appellant expressly stated that she did not object to the application for an extension of time in which to appeal being dealt with on the papers. The respondent also raised no objection to this course. The appellant was given an opportunity in the Notice of Appeal form to provide an explanation of why the appeal was not lodged within time and to raise any relevant considerations as to why an extension of time should be granted. She also had the opportunity as a result of the directions made on 4 March 2014 to put on evidence and submissions in this regard. The respondent has filed submissions in compliance with the directions. In these circumstances, the Appeal Panel is satisfied that the appellant and respondent have had a reasonable opportunity to be heard or otherwise have their submissions considered on the application for an extension of time and that the issues for determination can be adequately dealt with in the absence of the parties by considering the written submissions and other documents provided to the Panel. On these bases, the Appeal Panel considers it appropriate to make an order that an oral hearing of the application for an extension of time be dispensed with under s 50(2) of the Act.

Extension of Time to Appeal - Principles 18Under 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". 19An informative exposition of the role and nature of provisions which permit a Court or Tribunal to extend the time limits established for the orderly conduct of proceedings, including the time in which to lodge an appeal, is found in the decision of McHugh J sitting as a single justice of the High Court in Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2]: The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that 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 applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935: "The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion." 20The Courts have identified in numerous cases various factors that should be considered in deciding whether to grant an extension of time in which to appeal. Substantially the same principles have also been applied by the Appeal Panel of the Administrative Decisions Tribunal (ADT), one of the predecessors of the Tribunal, in relation to appeals in the ADT - Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16], Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. These authorities provide useful guidance on the principles that are to be applied by the Appeal Panel in this regard. 21Time 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. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice. 22The 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].

Extension of Time to Appeal - Consideration 23In her Notice of Appeal the appellant sought an extension of time in which to appeal. Section 13 of that notice asked the appellant to "explain why the application was not lodged within the time limit, what effect granting or not granting the extension would have on you and the Respondents and any other relevant considerations you wish the Tribunal to take into account in deciding whether or not to grant an extension of time". 24In attachment 1 to the Notice of Appeal the appellant stated: 13. Extension of time I seek an extension of time to make this application. I am assisted by the Western Aboriginal Tenants' Advice and Advocacy Services (WATAAS). I was only able to seek WATAAS' advice and assistance recently, because over the last 3-4 months, they have been moving office and had no phone contact or computer or fax (no basic office infrastructure). I require the assistance of WATAAS because I have very limited understanding of the processes involved in tribunal hearings and would like a qualified service representing me. 25As to the length of delay, it can be noted that it was only approximately 5 weeks. Nonetheless, it should be borne in mind that there is a very short period in which appeals may be lodged in respect of residential tenancy decisions. It is only 14 days, compared to the general position which permits a Notice of Appeal to be lodged within 28 days - see rule 25(4)(b) and (c) of the Rules. This difference reflects the nature of residential tenancy matters and the legislature's balancing of the rights of landlords and the rights of tenants. In the circumstances of this case, the length of delay does not tell substantially in favour of either granting or not granting the extension of time sought. 26As to the explanation for the delay, the information provided with the Notice of Appeal was that the WATAAS had been moving offices "over the last 3-4 months" and the appellant was only able to seek advice and assistance "recently". Apart from those assertions in the attachment to the Notice of Appeal, there was no specific material establishing when and how the appellant tried to contact the WATAAS, what responses she received, when the WATAAS actually moved or what actual impact it had on the WATAAS's ability to function and assist the appellant during the relevant period. The appellant was given the opportunity to file evidence and submissions relating to this aspect of her application. Furthermore, at the request of the WATAAS she was given a short extension of time in which to provide that material. No evidence or submissions were, however, filed. In the absence of some specific material concerning when the appellant sought the assistance of the WATAAS, when the WATAAS moved offices and the impact of the move on the WATAAS's ability to provide services to the appellant during the period from 30 January to 4 March 2014, there is no basis for the Appeal Panel to be satisfied that the appellant has provided an adequate explanation of the delay in lodging the appeal. In addition, the Panel notes that in the period between 30 January and 4 March 2014, the appellant had apparently had the time and, if it was required, assistance to lodge an application to set aside the original decision, which was rejected - see ground 2 in the grounds of appeal. No explanation was provided as to how she was able to take the step of applying to have the decision set aside but could not lodge an appeal within the required time. 27The lack of material providing an adequate explanation of the delay weighs against granting an extension of time - see Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at, for example, [103]. 28Turning next to whether there is any prejudice to the respondent, the Appeal Panel notes that the respondent is a governmental corporation. In one sense, it suffers little prejudice if the appellant continues to reside in the premises the subject of the original application provided the rent is paid. There is, however, a wider sense in which prejudice may be suffered in that, if the appellant is in occupation of the premises when she should have vacated them, the respondent is denied the ability to provide that accommodation to other persons who have a legitimate need for housing of the type provided by the respondent. On that basis, the Panel takes into account that there may be prejudice to the respondent's ability to provide accommodation to those who legitimately need it. As a result, this consideration also weighs against extending the time for appeal. 29Finally, the Appeal Panel should consider the appellant's prospects of success on any appeal if an extension of time were granted. The grounds of appeal have been set out in full above. In summary, the appellant's grounds are that: (1)she was not able to attend the hearing of the matter on 30 January 2014 because of Aboriginal cultural customs and obligations and consequently she had not been given the opportunity to respond to the case against her and thus she was not afforded procedural fairness (grounds 1, 2 and 3); (2)she had "significant new evidence" that she was able to present to the Tribunal in the matter (ground 4). 30As to the first summary ground of appeal, it may be accepted for the purposes of this application that Aboriginal cultural customs required the appellant to "assist [her] family with organising two funerals in separate towns 300 kms outside Dubbo". It is important for the Tribunal to ensure that persons of Aboriginal or Torres Strait Islander background or any other culturally or linguistically diverse background are not prejudiced in seeking access to justice through the Tribunal because of their language, customs or other relevant aspects of their culture. Nonetheless, there is a need for the Tribunal to have before it material which assists it to determine how the customs or linguistic and other cultural factors have actually affected the party's ability to obtain access to the Tribunal. 31In the present case, there was no specific information or material as to how those funerals and organising them prevented the appellant from attending the hearing on 30 January 2014. It was not a ground of appeal that the appellant did not receive notice of the hearing on 30 January 2014 or was not aware of the hearing on that date. There was simply no explanation given as to how the funerals and the relevant cultural customs might have caused the appellant to be unable to seek an adjournment, contact the Tribunal or the respondent (the applicant on the original application) and inform them of the problem or have the WATAAS or someone else appear to represent her, put evidence on or make an application for an adjournment on her behalf before or at the hearing. 32All that grounds 1, 2 and 3 seek to argue is that the appellant did not attend the hearing because of Aboriginal cultural obligations and thus was not able to respond to the case put against her. These circumstances, even if accepted on the basis of material before the Appeal Panel, do not establish that the Tribunal failed to afford her procedural fairness . Nothing in the grounds of appeal or other material put forward by the appellant suggests that the Tribunal failed to ensure that she had a reasonable opportunity to be heard or otherwise have her submissions considered and so failed to comply with s 38(5)(c) of the Act. She did not suggest that she had not been given notice of the hearing on 30 January 2014 or of what the issues were. 33Furthermore, even if s 38(5)(c) of the Act had not been complied with, the proceedings and the decision were not a nullity, by virtue of s 53(3) of the Act. The appellant's options if there had been such non-compliance would have included applying under s 53(4) of the Act or cl 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW) (the Regulation) for the decision to be set aside. It appears from ground 2 in the Notice of Appeal that such an application was made and rejected. 34In short, failure to attend, for whatever reason, a hearing of which the appellant had notice does not without more establish non-compliance with s 38(5)(c) by the Tribunal or a failure to afford procedural fairness. 35Therefore it appears to the Appeal Panel that the appellant has little if any prospect of success in an appeal based upon grounds 1, 2 and 3 in the Notice of Appeal. Given the other considerations which weigh against an extension of time being granted, it may be that the appellant would have to satisfy the Panel that her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [14] (per Hodgson JA, Ipp JA agreeing at [17]). In the Appeal Panel's view her case does not meet that test. Further, even if it were accepted in this case that all the appellant had to establish was that her appeal was "fairly arguable", the Panel is also not satisfied that the appellant's grounds 1, 2 and 3 raise an appeal which could be so described. 36The second summary ground was that the appellant had "significant new evidence" that she was able to present to the Tribunal in the matter. Notwithstanding the various opportunities the appellant was given to disclose what that new evidence might be, she has not done so. As a result, the Appeal Panel cannot be satisfied that there is any such evidence. 37Furthermore in this regard, on an appeal under s 80 of the Act, the appellant would not be entitled to lead any "new evidence" as of right. It is possible under s 80(3) for the Appeal Panel to decide to deal with the appeal by way of a new hearing and permit further evidence. Section 80(3) provides: (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 38In the absence of a clear indication of what the new evidence was and an explanation of why it could not have been led at the original hearing, there does not appear to the Appeal Panel to be any appropriate basis for concluding that the appellant had any substantial prospect of her appeal being dealt with under s 80(3)(a) and (b) and being successful. Once again, an appeal based on ground 4 does not appear to the Appeal Panel to be fairly arguable, let alone have more substantial merit. 39The appellant's lack of prospects of success militates against granting an extension of time. 40Finally, in the light of all the considerations referred to above, the Appeal Panel is satisfied that the appellant has not shown that strict compliance with the rules would work an injustice upon the appellant, especially given her lack of prospects of success on any of the grounds of appeal on which she relies.

Interaction Between An Application to Set Aside and an Appeal 41As has been noted above, the appellant has stated in her second ground of appeal that she "made an application to NCAT to have the orders made on January set aside after the matter was heard in my absence. This application was denied on the grounds that I did not make attempts to call the tribunal and/or arrange a telephone hearing." Where a decision is made in the absence of a party, the party can apply under cl 9 of the Regulation to have the decision set aside. Clause 9 provides: (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. Note. The following provisions of the Act are examples of provisions that expressly confer powers to set aside or vary decisions of the Tribunal: (a) section 45 (3) (which enables the Tribunal to revoke leave granted to a person to represent a party), (b) section 53 (4) (which confers a power on the Tribunal to set aside proceedings and decisions involving procedural irregularities resulting from a failure to comply with provisions of the Act or the procedural rules in relation to the commencement or conduct of proceedings), (c) section 63 (which confers a power on the President or a presiding member to correct obvious errors in decisions of the Tribunal), (d) section 64 (3) (which enables the Tribunal to vary or revoke a non-disclosure order made under section 64), (e) section 73 (3) (which enables the Tribunal to vacate or revoke an order with respect to contempt of the Tribunal). (2) The Tribunal may make an order under this clause of its own motion or on the application of a party. (3) Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made. (4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this clause unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (5) A party may not make an application for an order under this clause to set aside or vary a decision of the Tribunal if: (a) an internal appeal or appeal to a court against the decision has been lodged or determined, or (b) an application for a judicial review of the decision has been made or determined. (6) A party may not, without the leave of the Tribunal, make an application for an order under this clause to set aside or vary a decision of the Tribunal if the party has previously made an application under this clause to have the decision set aside or varied. (7) If the Tribunal sets aside a decision under this clause, it may also set aside any orders that it made consequent on the decision that has been set aside. Note. An example of such a consequent order may be an order for costs in the proceedings. (8) Proceedings for the purposes of this clause are prescribed for the purposes of section 50 (1) (d) of the Act. Note. A hearing is not required for proceedings that are prescribed for the purposes of section 50 (1) (d) of the Act. (9) This clause does not limit any power of the Tribunal to set aside, revoke or vary its interlocutory decisions or any other decisions that do not operate to determine proceedings. 42It will be noted that under cl 9(5), such a set aside application cannot be made if an internal appeal against the decision has been lodged. There is no corresponding prohibition, however, on an appeal being lodged if a set aside application under cl 9 has been made. Accordingly, it is possible for a party to apply under cl 9 to have a decision set aside and subsequently to lodge an appeal against that decision. 43A cl 9 set aside application must be made within 7 days of the decision being made - cl 9(3). An internal appeal to the Appeal Panel must be lodged within 14 days, in the case of an appeal in a matter relating to a residential tenancy, or 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), except if enabling legislation establishes a different time limit for an internal appeal - see rule 25(4) of the Civil and Administrative Tribunal Rules 2014. 44If a party applied to set aside a decision under cl 9, was unsuccessful and then lodged an internal appeal under s 80 of the Act out of time, the fact that the party had lodged an unsuccessful set aside application would not by itself justify the grant of an extension of time in which to appeal. There would need to be some additional circumstances which would lead to an injustice being worked upon the appellant if an extension of time were not granted. No additional such circumstances were identified by the appellant.

Conclusion on Extension of Time and Consequential Matters 45For these reasons, the Appeal Panel is not prepared to grant the appellant an extension of time in which to appeal. 46Consequently, the questions of leave to appeal and where any appeal should be heard do not arise. In so far as it may be necessary to do so because of the filing of the Notice of Appeal, the appeal itself should be dismissed, being out of time. 47In these circumstances, it is also appropriate to lift the stay granted on 4 February 2013.

Orders 48For these reasons, the Appeal Panel makes the following orders: (1)That an oral hearing of the application for an extension of time in which to appeal be dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2)The application for an extension of time in which to appeal is dismissed. (3)The appeal is dismissed. (4)The stay of the orders made in application SH14/02239 is lifted. (5) I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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 22 May 2014 - Hyperlink removed from Jackamarra v Krakouer (1998) 195 CLR 516 Amended paragraphs: Coversheet 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 2014

Civil and Administrative Tribunal Regulation 2013(NSW)

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