Josevski v Imbree

1. It was raised with Mr Josevski, prior to his departure from the hearing, that the appellants would require an extension of time pursuant to section 41 of the NCAT Act, as the Notice of Appeal had been lodged 62 days after the time limitation under rule 25(4)(c) of the NCAT Rules.
2. The question of an extension of time was considered by Kirk JA in Yang v New South Wales Land and Housing Corporation [2025] NSWCA 58 (Yang), where Kirk JA noted at [24]:

As Ward JA said in Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406, at [42], where leave to extend time to appeal is concerned the Court is to have regard to what the interests of justice require in all the circumstances of the case, including "the reason why the appeal was not lodged in time; the period for which an extension is sought; any prejudice to the opposing party; and the apparent prospects of success on the appeal", where the latter issue involves considering whether there is a "fairly arguable case" in circumstances where there was a reasonable explanation for the delay and no significant prejudice.

1. The above approach is consistent with that of the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.

1. The appeal was lodged approximately 62 days out of time.
2. The appellants had included written submissions indicating that Petar Josevski, the appellants father, had been gravely ill during the proceedings and passed away on 21 November 2024. They further stated that the appellants had been under a great deal of stress at this time, due to Mr Josevski's declining health, in which the appellants found it difficult to engage with the Tribunal proceedings. The appellants have provided two letters, one from a treating doctor dated 28 October 2024 indicating Mr P Josevski was gravely ill and one from a hospital social worker indicating that Mr P Josevski had passed away on 21 November 2024, in what we interpret to be supporting evidence for the reasons for the delay in lodging the appeal. These documents were attached to the Notice of Appeal. The submissions indicated that the appellants now wished an opportunity to devote time to the legal issues in dispute.
3. Mr Josevski was given the opportunity to address the considerations outlined in Yang, however, he declined to make any oral submissions indicating his intent to leave the hearing.
4. It was explained by the appeal panel to Mr Josevski, that should he leave the hearing without making any submissions in relation to the extension of time, the appeal panel may have no basis to extend time. It was further explained to Mr Josevski, that should time to lodge the appeal not be extended, the appeal would be dismissed.
5. Mr Josevski was given the opportunity to seek an adjournment prior to leaving the hearing and declined to do so.
6. Mr Josevski left the hearing without giving any oral submissions in relation to the extension of time required to lodge the appeal, or the appeal itself, and without seeking an adjournment.
7. Mr Imbree also included some written submissions in his reply to appeal highlighting the length of the delay as being unreasonable. Mr Imbree noted there was ample time for the appellants to lodge the appeal within time and they have not given a reasonable explanation as to why they did not, amounting to what could only be seen as an attempt to delay compliance with the orders of the Tribunal.
8. In Winter v The Queen [2013] NSWCCA 231, need for an appellant to explain the entire period of the delay was commented on by the Court of Criminal Appeal. At [26], Bellew J (with whom Hoeben CJ at CL and Barr AJ agreed) said:

1. The appellant did not address any prejudice would be suffered by the respondent should time be extended.
2. Mr Imbree pointed to the delay in completing urgent works on the dividing fence wall subject of the orders under appeal.
3. It was held in Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 at [3], by Mc Hugh J, when the High Court considered a request for an extension of time, that:

1. In meritorious cases where the interests of justice so require, there are exceptions to an inflexible application of the rules, as noted by the Appeal Panel in Webb v Secretary, Department of Communities and Justice [2025] NSWCATAP 47 at [49].
2. In this matter, we accept that the respondent would suffer prejudice to their "vested right to retain the judgement" once the appeal period is at an end, should applicant be granted an extension of time.

1. The meaning of a "question of law" was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) at [25]-[40]. A pure question of law does not depend on the facts found and the question of law must be, self-evidently, a question of law and not depend on the answer. A question of law is distinct from a mixed question of fact and law, for which leave to appeal is required. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] and Cusumano at [32]. However, the categories of question of law are not closed. As was stated at Cusumano at [37]-[39]:

"What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.

For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly at [28]-[32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A; see too: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [53]-[54], [109]-[114].

Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required."

1. We have engaged in the process of considering whether there is a question of law that has in fact been raised (see also Cominos v Di Rico [2016] NSWCATAP 5 at [13]). We consider that the only question of law raised by the appellant is whether the member failed to take into account relevant considerations, being section 18 of the DF Act.

1. The Appeal Panel considered the meaning of a substantial miscarriage of justice for the purposes of cl 12 of sch 4 to the NCAT Act in Collins v Urban [2014] NSWCATAP 17 at [76], stating that a substantial miscarriage of justice may have been suffered:

(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal, only in matters that involve:

1. It is important to note that an appeal is not an opportunity for the losing party to rerun the party's case (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]).

1. The appellant has raised in their submissions that there is a requirement under section 18 the DF Act for the boundary line to be determined by a registered surveyor, which the member failed to take into consideration.
2. The Appeal Panel considered when a failure to take into consideration a relevant consideration results in an error of law in ZGM v ZGN [2018] NSWCATAP 101 where they said at [37]-[39]:

The authorities make clear that a failure to take into account a relevant consideration will only constitute an error of law if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making that decision. Whether a decision-maker is bound to take a particular matter into account is determined by the nature of the power to be exercised and the construction of the statute conferring that power. If the relevant factors are not expressly identified in the statute, they must be determined by implication from its subject matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39-40; Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 at 452; Director General Department of Finance & Services v Porter [2014] NSWCATAP 6 at [27].

1. The appellant raises that the cost of the fence was inflated, and the quote was provided by the respondent's son's building company. The appellant says this is not fair and equitable as the quote was not sufficiently tested. Leave would be required for this ground.
2. The Appeal Panel in Dhorajiwala PCT Pty Ltd v Peacock [2022] NSWCATAP 313 at [39] noted the following when considering whether a decision was fair and equitable:

(1990) 93 ALR 479

(1968) 118 CLR 186

(1986) 162 CLR 24

(2000) 200 CLR 442