Karelia v Transport for New South Wales

1. The appeal has been filed many years out of time in respect of both of the decisions. The 2016 Decision issued on 16 June 2016. The 2017 Decision issued on 29 June 2017.
2. The appeal as originally filed named as respondent the Point to Point Commissioner, who is now responsible under the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) for the regulation of taxi services in NSW. The name of the Respondent was amended by consent to Transport for New South Wales, which has succeeded RMS, at the callover of the appeal on 16 May 2025.
3. Mr Karelia's main argument is that the cancellation and refusal decisions have made him ineligible to get a taxi driver licence under the legislative regime that was subsequently introduced. He asks the Appeal Panel to review and change those decisions so he can do so.
4. In addition to the extreme delay, the appeals reveal no valid grounds and are misconceived. Accordingly:

(1) We refuse to extend time to file the appeal in respect of each of the decisions;

(2) We dismiss the appeal; and

(3) We order Mr Karelia to pay the respondent's costs.

1. An appeal does not provide an appellant with the opportunity to run its case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
2. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") prescribes that an internal appeal may be brought as of right on any question of law, or with leave (ie permission) of the Appeal Panel on any other ground.

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel set out a non-exhaustive list of possible questions of law giving rise to an appeal as of right:

(1) whether there has been a failure to provide proper reasons;

(2) whether the Tribunal identified the wrong issue or asked the wrong question;

(3) whether a wrong principle of law had been applied;

(4) whether there was a failure to afford procedural fairness;

(5) whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;

(6) whether the Tribunal took into account an irrelevant consideration;

(7) whether there was no evidence to support a finding of fact;

(8) whether the decision was so unreasonable that no reasonable decision-maker would make it.

1. These matters were expanded by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Cusumano) where the Appeal Panel stated (references omitted):

"32 To the above list [referring to the list in Prendergast extracted above] might be added the following (some of which are nuanced aspects of the categories in Prendergast):

(1) Whether the Tribunal drew inferences that were not available from the facts as found (an extension of item 7 [of Prendergast]) ...

(2) Whether the construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way: ...

(3) Whether the Tribunal's decision was vitiated by bias, or a reasonable apprehension of bias, relates to and intersects with the fair hearing rule, and may encompass or be related to the procedural fairness question: ...

(4) Whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice, that is, procedural unfairness. Alternatively, it may also constitute a constructive failure to exercise jurisdiction: ...

(5) Whether the facts as found necessarily satisfied the statute or necessarily did not: ...

...

33 Plainly, the categories are not closed."

1. The principles as to whether leave should be granted are well settled, as stated by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84]:

"(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:

(a) Issues of principle; or

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; or

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."

1. Mr Karelia requires an extension of time to file the Notice of Appeal because r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) ("NCAT Rules") provides that, unless the Tribunal grants an extension of time, an appeal must be lodged within 28 days from the date of the decision to be appealed.
2. Section 41(1) of the NCAT Act gives the Tribunal the power to extend the time for lodgement of a Notice of Appeal and s 41(2) permits that power to be exercised even if the relevant time has expired.
3. The relevant considerations governing the exercise of the discretion were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22] (citations omitted):

"(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 ...;

(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 ... 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...;

(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)...; 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 ...."

Materials and representation before the Appeal Panel

(1) his Notice of Appeal (with attachments) on 30 April 2025;

(2) submissions (14 pages) on 10 July 2025; and

(3) submissions in reply on 7 August 2025 (dated 30 July 2025).

1. Mr Karelia had also filed an application for a stay (which had been dismissed) and submissions relating to that application. Those documents were not relevant to or relied on at the hearing.
2. Orders were previously made by the Tribunal on 16 May 2025 permitting Mr Jools to represent Mr Karelia. Mr Jools told us he was the President of the Australian Taxi Drivers Association, but confirmed he was not a lawyer.

1. Mr Wozniak, a solicitor, represented the Respondent. He had also represented RMS in each of the proceedings now sought to be appealed.
2. The Respondent filed its Reply to Appeal on 14 May 2025 and written submissions on 22 July. The Respondent's written submissions were accompanied by a bundle of documents (224 pages in total) from the Registry's file in respect of the 2017 Decision. We were informed that the file relating to the 2016 Decision could not be located due to the passage of time. At the hearing of the Appeal, both parties told us that neither of them sought to rely on the bundle, so it could be ignored. We have done so.

1. Each decision concluded that the appellant was not a "fit and proper person" under the relevant provisions of the legislation then in force, being the Passenger Transport Act 1990 (NSW) (the "Passenger Transport Act"). The history and relevant convictions are also set out in the extracts below.

1. The 2016 Decision affirmed the respondent's decision to cancel the appellant's taxi authority.
2. The Tribunal specifically considered and rejected (at [27], [32] and [38]) the appellant's submission that a suspension of his authority would be more appropriate than a cancellation.
3. Relevantly, it said (our emphasis):

5. The issue in this case, then, is whether the decision to cancel Mr Karelia's authority to drive taxi-cabs was the correct and preferable one, having regard to whether Mr Karelia is a fit and proper person, whether he is of good repute and whether he has sufficient responsibility and aptitude to drive a taxi-cab...

Consideration of evidence

6. Mr Karelia has conceded that between March 2014 and June 2014, he prepared eight false statutory declarations in which he named a person other than himself as being the driver of the relevant taxi-cab at the time of the eight applicable traffic offences.

7. ...

8. Mr Karelia's driving record shows that between 23 May 2014 and 28 August 2015, eleven driving offences were recorded against him. This does not include the eight offences for which Mr Karelia signed the eight statutory declarations nominating a driver other than himself.

9. Those eight traffic offences, which all occurred between 12 March 2014 and 23 May 2014, included seven speeding offences and one offence of going through a red traffic light.

...

12. Mr Karelia sought to rely on the written material in this matter and did not give oral evidence before the Tribunal.

13. Medical certificates are before the Tribunal as evidence that Mr Karelia suffers from chronic lower pain with sciatica and that his wife is underweight, with a past history of fully treated bowel tuberculosis. A reference from Australian Taxi Drivers Association is also before the Tribunal in which Mr Karelia is said to be remorseful for his actions.

14. A document outlining Mr Karelia's financial position shows that his weekly net earnings as a taxi driver are less than his weekly expenses."

...

26. .... In determining this matter, the Tribunal has accordingly given consideration only to the making of the eight false statutory declarations by Mr Karelia, in addition to Mr Karelia's subsequent driving record in NSW.

27. Mr Campbell, who appeared for the applicant, has submitted that a suspension of Mr Karelia's taxi-cab authority would be an appropriate penalty - in effect a suspension from 31 March 2016 (when the stay of the decision by RMS to cancel Mr Karelia's taxi-cab authority lapsed) until May 2016, when Mr Karelia's taxi-cab authority was to have expired.

28. Through his legal representative, Mr Campbell, Mr Karelia has accepted that he swore eight false statutory declarations nominating a driver other than himself in relation to eight traffic offences. In earlier submissions prepared for Mr Karelia by Mr Michael Jools of the Australian Taxi Drivers' Association, emphasis was placed on Mr Karelia's remorse for his actions:

'[Mr Karelia] wishes to advise that, a year ago, he realized the folly and the legal implications of his actions in completing false statutory declarations in relation to traffic offences committed by himself. At the time he was under financial and domestic conditions of great stress, and he took a 'way out' that seemed like a good idea at the time. He now is fully aware that it was a very bad idea, and it wholly remorseful. He has spoken to his colleagues and to our Association and has since changed not only his driving behaviour, but also, at least as he presents to us, his attitudes as a taxi driver. He concurs that, on the face of the recorded instances, his behaviour and actions were inappropriate and wrong. He admits doing wrong. He also needs desperately to continue driving a taxi to support his family, his wife and his children.'

29. No other character references are before the Tribunal.

...

32. The Tribunal is prepared to accept that Mr Karelia regrets his actions in signing the false statutory declarations and is remorseful. In light of the seriousness of Mr Karelia's actions, which involve a series of dishonest acts, the Tribunal does not agree with Mr Campbell's submission that a suspension would be an appropriate penalty for Mr Karelia.

33. The Tribunal is of the view that Mr Karelia's actions should be taken seriously for the following reasons:

• His actions reflect badly on his honesty, which is a fundamental consideration when determining whether a person is fit and proper;

• The offences in question relate directly to his driving and driving record, which is of importance given that a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. Sobey v Commercial and Private Agents Board [1979] 22 SASR 70

• As a result of Mr Karelia's actions in blaming other people for eight of his traffic offences, a false and misleading picture has been given of his driving record.

34. At the time of the relevant traffic offences, and the subsequent swearing by Mr Karelia of the eight false statutory declarations, Mr Karelia had held a NSW taxi driver's authority for less than eighteen months. Eight traffic offences in such a short period of time is not an insubstantial traffic record, particularly as he accrued a further eleven traffic offences between 23 May 2014 and 28 August 2015. It is a driving record that does not assist Mr Karelia in an assessment of his suitability and fitness to hold a taxi-cab authority.

...

36. In considering the likelihood of whether Mr Karelia would re-offend, the Tribunal accepts that Mr Karelia's expressions of remorse and contribution [sic] are genuine. The Tribunal is satisfied that he now understands the seriousness of his conduct and would be unlikely to reoffend in the future.

37. Given, however, the severity of his actions in swearing eight false declarations in order to escape responsibility for his traffic offences, in addition to his poor driving record, the Tribunal cannot be satisfied that Mr Karelia is, at this stage, a fit and proper person to hold a taxi driver's authority.

38. On the evidence before it, the Tribunal is satisfied that Mr Karelia's actions in falsely swearing the eight statutory declarations, in addition to his poor driving record in NSW, are sufficiently serious to warrant the cancellation of his taxi-cab driver authority.

...

1. Mr Karelia applied to RMS for a new taxi authority in February 2017. RMS refused the application in March 2017, and Mr Karelia applied for review of that decision.
2. The Tribunal heard the matter on 29 June 2017 and issued its decision the same day.
3. The Tribunal found Mr Karelia was not a fit and proper person to be the driver of a taxi-cab within s 33(3)(a) of the Passenger Transport Act, and affirmed the decision of RMS to refuse to issue the taxi authority.
4. The 2017 Decision relevantly said:

Background

4. The applicant was a taxi driver in New Zealand until he was disqualified, on 31 October 2011, from driving a taxi for twelve months. He had committed about 27 traffic offences in New Zealand between September 2005 and August 2011.

5. The applicant was issued with an authorisation to drive taxi cabs in New South Wales on 13 May 2013. Between 1 December 2013 and 23 May 2014, the applicant committed 8 traffic offences. He accepts that, in relation to each of these offences, he made a false statutory declaration stating that the driver of the vehicle was somebody else when it was in fact him. He also accepts that he made false statutory declarations on three additional occasions in response to infringement notices.

6. The applicant had committed nine traffic offences (in addition to the offences referred to above) between 23 May 2014 and 28 August 2015.

7. The applicant's taxi-cab authority was cancelled on 20 November 2015. He applied for a review of the cancellation decision in this Tribunal. On 16 June 2016, the Tribunal affirmed the decision of RMS to cancel the authority (Karelia v Roads and Maritime Services [2016] NSWCATOD 76).

8. The applicant applied for a new authority to drive a taxi-cab on 20 February 2017.

9. That application was refused by RMS, under s 33B of the Passenger Transport Act 1990 (NSW), on 20 March 2017. The applicant sought review of that decision in this Tribunal on 23 March 2017."

1. After confirming jurisdiction and referring to the relevant legal authorities, the Tribunal concluded:

"17. I am not satisfied, from the applicant's evidence and that of Mr Jools, that there has been sufficient change in the applicant since he made the false statutory declarations, to mean that he is now a fit and proper person to hold a taxi authority. The applicant stated in his written evidence that he made serious mistakes in the past, which he regrets, and that they will not happen again, not because he was caught, but because they were wrong. However, when I asked him about what had changed in him since he made the eleven false statutory declarations, he referred to the improvements in his driving. When asked if he understood the seriousness of the false statutory declarations, he said that he had made them because his situation was worse at the time. I find that he does not appreciate the seriousness of his conduct, which was calculated. In these circumstances, I cannot attest that he is a fit and proper person to be the driver of a taxi-cab.

...

19. I am not satisfied that the applicant is a fit and proper person to drive a taxi, having regard to his calculated dishonesty in making eleven statutory declarations, the last of which was made about three years ago.

20. The applicant also has a very bad driving record, both in New South Wales and in New Zealand. I am not convinced that a period of less than two years without further traffic offences, in circumstances where he was not driving a public passenger vehicle for most of that time, means that he has sufficient responsibility and aptitude to drive a taxi-cab in accordance with law, given his long history of traffic offences (Passenger Transport Act, s 33(3)(b)).

21. For these reasons, the correct and preferable decision is to affirm the respondent's decision."

Subsequent introduction of new legislation and regulations

1. The regulation of taxis and private hire vehicles in New South Wales changed on 1 November 2017. The Passenger Transport Act ceased to apply to taxis and private hire vehicles and instead they became regulated under the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) ("PTPT Act") and the Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017 (NSW) ("PTPT Regulations") by a new regulator, being the Point to Point Transport Commissioner.
2. There are clear differences from the earlier statutory regime. Relevantly, s 52(2) of the PTPT Act says the Commissioner must not grant an application for a taxi licence unless satisfied that the applicant meets any requirements specified by the regulations, and cl 25(2) of the PTPT Regulations says:

(2) A person must not drive a taxi or hire vehicle that is being used to provide a passenger service if the person is a person -

(a) who last held a driver authority under the Passenger Transport Act 1990 or the Passenger Transport Act 2014 that was cancelled (other than on medical grounds), or

(b) whose most recent application for a driver authority under either of those Acts was rejected (within the preceding 10 years) on the grounds that the person was not considered to be of good repute and in all other respects a fit and proper person to be the driver of a public vehicle used for a public passenger service.

1. At the appeal hearing, the statement of Mr Karelia (who was not required for cross-examination) was accepted into evidence for the purposes of the application for an extension of time within which to appeal.
2. Relevantly, both parties accepted that the effect of the new legislation and the regulations was that Mr Karelia could not legally drive a taxi.
3. We accept that that is correct and note that:

(1) The 2016 Decision upheld the cancellation by RMS of his taxi authority. Because his licence was cancelled, rather than suspended, by virtue of cl 25(2)(a) of the PTPT Regulations he is ineligible and can never become eligible to drive a taxi in NSW. There is no discretion under the relevant provisions.

(2) The 2017 Decision upheld the refusal of RMS to grant his application for a (new) taxi authority. That is a further basis upon which he is ineligible to drive a taxi by virtue of the PTPT Regulations. Unlike the cancellation, that refusal only causes him to be ineligible for a period of 10 years from the date of the refusal. Again, there is no discretion under the relevant provisions.

Incorrect issue of a taxi licence and background to this appeal

1. Mr Karelia was issued with a Driver ID under the new statutory regime in 2018 or 2019, despite being ineligible. He explained what transpired, and the consequences, as follows:

(1) He did not appeal the original decisions because at that time, he could reasonably expect that, having redeemed his character, he could, in due course, re-apply.

(2) With the new legislative regime in place, he registered with GM Cabs, was approved and had since driven taxis.

(3) In March 2025 he was advised that he was not eligible to drive.

(4) He seeks leave to bring a late Appeal with a view to downgrading the cancellation to a suspension for a period, such that his eligibility would not be a problem.

(5) In making the earlier decisions, the NCAT member could have had no expectation that a determination to cancel an authority would have a permanent and irreversible impact.

1. As noted above s 41 of the NCAT Act permits the Appeal Panel to extend the time for filing the Notice of Appeal. There is no limit expressed in the legislation upon the length of time by which time may be extended. The principles governing the exercise of the discretion to extend time are also set out above. Having regard to those principles, we are not persuaded that time should be extended in this case.

1. First, the delays are extraordinary. The appeal was filed with the Tribunal eight and nine years (respectively) after the publication of the decisions.

1. Secondly, the delay in filing the appeal does not follow from any misapprehension concerning the effect or correctness of the decisions at the time they were published, or during the time immediately following the delivery of the decisions. The delay arises in part because the appellant did not predict the consequences of the decisions in the event of the subsequent change in the law.
2. However, the relevant regulations were promulgated and came into effect very shortly after the 2017 Decision. Mr Karelia's evidence was that he had become aware in 2018:

"that there was no longer a 'Taxi Driver Authority' and that the relevant Taxi Network was to issue a Driver ID".

1. It appears that Mr Karelia did not enquire further, and applied for and was given a Driver ID by a taxi network in 2018. The delay since that time in filing the Notice of Appeal stems from the fact that Mr Karelia was able to operate as a taxi driver (contrary to the prohibition in the PTPT Regulations) until 2025 when the Point to Point Transport Commissioner became aware that he was driving a taxi despite not being eligible. Mr Karelia stated that he was issued a "Prohibition Notice" but did not provide a copy to the Appeal Panel. Regardless, Mr Karelia states that he only became aware in 2025 that he was ineligible to drive a taxi by reason of the 2016 Decision and the 2017 Decision.
2. We are not persuaded that Mr Karelia's explanation for the delay in filing his appeal is satisfactory, particularly in view of the extreme length of the delay.

1. Thirdly, the grounds of appeal raise no question of law, nor does the appellant assert that there was any error in either of the original decisions.

(1) This proposition was put squarely to Mr Karelia's representative at the hearing, Mr Jools, who conceded that it was correct. He also told the Appeal Panel, at various times, that they "were not appealing on a question of law", they were "still quite satisfied" with the 2016 and 2017 Decisions and there was "no dispute" regarding any error in the decisions.

(2) We also note that, at the callover of the appeal on 16 May 2025, the Appeal Panel, differently constituted, directed Mr Karelia to file an Amended Notice of Appeal disclosing a question of law and referred to the Appeal Panel's decision in Cusumano as guidance as to the meaning of "question of law". No such document was filed.

(3) In short, the Notice of Appeal does not identify any question of law and the grounds identified as justification for the grant of leave to appeal do not identify any error in either decision.

(4) Mr Jools also conceded that there was no miscarriage of justice in respect of either of the decisions at the time they were heard, or in respect of the decisions which issued. Rather, Mr Karelia submits there is a miscarriage of justice which arose after the decisions were handed down, arising from the legislation and regulations which subsequently came into force.

(5) Those provisions were never in issue before the Tribunal. There is no demonstrated - or even submitted - error in either of the decisions. The suggestion that the decisions made in 2016 and 2017 were not the correct and preferable decision is entirely based upon circumstances arising subsequent to the decisions.

1. Mr Karelia was given the full opportunity to present his best case before the Tribunal each time. In the first proceedings, he submitted that suspension rather than cancellation was appropriate and that submission was rejected. He did not put on a statement. The facts were not in dispute and the decision was affirmed. In the second proceedings, he was again found not to be a fit and proper person.
2. Mr Karelia now seeks to re-run each case, due to the consequences of the decisions. In essence he says that he would have "tried harder" if he had known that these consequences would deprive him of the right to drive a taxi under the new law.
3. However, as noted in Ryan, an appeal is not a forum to simply re-run the case, nor indeed to "try harder" with the benefit of hindsight in the context of circumstances which were not before the Tribunal at the time.
4. It follows, and we find, that each appeal is without merit and is misconceived.

1. Having regard to the length of the delay, the absence of a satisfactory explanation for the delay, and the lack of merit in the appeal, there is no warrant to grant an extension of time for the filing of the appeal and the appeal must be dismissed.

1. The Respondent sought an order for costs in the event the appeal was dismissed.
2. Section 60 of the NCAT Act provides:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party's own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following -

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may -

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

1. The Respondent relies on pars 60(3)(c), (e) and (g) of the NCAT Act in submitting that there were special circumstances warranting an award of costs in its favour.
2. In Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Santow JA (with whom Mason P and Brownie AJA agreed) stated, at [60], in relation to the question whether special circumstances existed:

"For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of "serious unfairness" is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration."

1. That statement was cited by the Appeal Panel in Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11] and in numerous subsequent decisions.

Section 60(3)(c) - the relative strengths of the claims made by each of the parties including whether a party has made a claim that has no tenable basis in fact or law

Section 60(3)(e) - whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance

1. It is convenient to deal with pars 60(3)(c) and (e) together.
2. The Respondent submitted:

"46 The appellant failed to properly grapple with the required task of demonstrating that the Tribunal below erred in making its findings. It is clear that there was no error by the Tribunal below and as such, the appellant's claim was frivolous, vexatious, misconceived and lacking in substance. This should properly support a finding that special circumstances arise warranting an order for costs."

1. We agree that the claims made by Mr Karelia had no tenable basis and were misconceived, a matter we have addressed above. In summary:

(1) In our view, Mr Karelia and his representative have misunderstood their task, misunderstood the task of the Tribunal below, and misunderstood the task of the Appeal Panel in respect of the appeal.

(2) The decisions were not challenged in any way that established a proper basis for any appeal. The facts are not challenged. The findings are not challenged. There was no procedural unfairness.

(3) The Appellant is appealing only because the outcome has consequences under legislation later introduced which was not known at the time. The legislation did not have retrospective effect, as was submitted. The legislation only applied on and from the date of its introduction.

(4) The fact that new legislation and/or regulations operate harshly cannot, on any view, be grounds for an appeal. .

1. This is not the end of the matters required to be considered, however. In James v Department of Justice (Corrective Services NSW) (No 2) [2022] NSWCATAP 216 (James (No 2)), the Appeal Panel held, at [13]-[14] and [24]-[26]:

"13 The respondent's submissions in this regard amounted, ultimately, to no more than the proposition that, the appeal having failed, it was thereby shown to have no tenable basis.

14 Section 60(3)(c) requires more than this. As the Appeal Panel held in DYH v Public Guardian (No 3) [2022] NSWCATAP 34 at [17] - [19]:

17 The power to award costs in s 60 of the NCAT Act is to be understood in the context of the Act as a whole. One of the objects of the NCAT Act is "to ensure that the Tribunal is accessible and responsive to the needs of all of its users" (NCAT Act, s 3). A large proportion of its users are not legally trained and the general rule (which is modified for the Administrative and Equal Opportunity Division) is that a party has the carriage of the party's own case and is not entitled to be represented by any person, unless the Tribunal grants leave (NCAT Act, s 45(1); Sch 3, cl 9). The Tribunal is also obliged to ensure that the parties understand the nature of the proceedings and, if requested to do so, explain procedural matters to the parties (NCAT Act, s 38(5)).

18 The general rule set out in s 60(1) of the NCAT Act, that each party pay the party's own costs, was "designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable" (Choi v University of Technology Sydney [2020] NSWCATAP 18 at [41], citing Stonnington City Council v Blue Emporium Pty Ltd [2004] VCAT 1441 at [13]). The concern with access to justice, evinced in s 60(1), indicates that the Tribunal should not award costs too readily on the basis that one party's claim was stronger than the other party's claim (see NCAT Act, s 60(3)(c)). The relative strengths of the parties' claims is one factor to be taken into account, but a finding that a party's claim is weak does not necessarily mean that there are special circumstances warranting an award of costs (see Choi v University of Technology Sydney [2020] NSWCATAP 18 at [45]).

19 In this context, we consider that the power to award costs is to be exercised with some tolerance for self-represented litigants who do not understand legal concepts. That includes a lack of understanding of the rules governing the admission of fresh evidence and the question of what constitutes error for the purposes of an appeal. That approach is consistent with the principle that the discretion to award costs is to be exercised judicially "having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs" (Feng v OzWood (Australia) Pty Ltd [2020] NSWCATAP 42 at [8]).

...

24 In Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 at [44] the Appeal Panel held that:

44 A finding that a claim is "not proved on the balance of probabilities" is not the same as a finding that a claim is "not tenable in fact or law". They are different concepts. The expression "no tenable basis in fact or law" relates to the common law tests developed and applied in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125. For a claim to have no tenable basis in fact or law it must be so obviously untenable that it cannot possibly succeed: General Steel at 130. "Manifestly groundless" or "clearly untenable" are equivalent expressions. In our view, for the purpose of s 60(3)(c), it matters not whether a conclusion that a claim has no tenable basis in fact or law is reached in connection with an application for summary dismissal or after a full hearing on the merits.

25 In that case, at [50], the Appeal Panel adopted the statement of Ipp JA in The Owners Corporation of Strata Plan 4521 v Zouk & Anor [2007] NSWCA 231 at [45] that "lacking in substance" means "'not reasonably arguable'. That is, a meaning not dissimilar to 'frivolous, vexatious, misconceived'".

26 We do not consider that the appeal could properly be described as frivolous, vexatious, misconceived or lacking in substance in the sense outlined by the Appeal Panel in Zucker v Burbank Montague Pty Ltd. The grounds of appeal were not established, and it may fairly be said that the appeal had weak prospects of success. However, as the Appeal Panel stated in DYH v Public Guardian (No 3) [2022] NSWCATAP 34, at [18], the concern with access to justice evinced in s 60 (1) indicates that the Tribunal should not award costs too readily on the basis that one party's claim was stronger than the other party's claim, and a finding that a party's claim is weak does not necessarily mean that there are special circumstances warranting an award of costs."

1. The Respondent submitted that Mr Karelia included grounds of appeal that "could not reasonably be made and which were put without any proper basis".
2. We accept the Respondent's submission. We consider that the appeal can properly be described as both misconceived and lacking in substance in the sense outlined by the Appeal Panel in Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 and applied in James (No 2). No viable ground of appeal was advanced in respect of either decision. Moreover, the Appellant did not comply with the orders of the Tribunal by filing an amended notice of appeal to provide further clarity on those grounds. Although the Respondent did not rely upon s 60(3)(f) of the NCAT Act, the failure to comply with directions of the Tribunal is a failure to comply with the duty imposed by s 36(3) of the NCAT Act:

"to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal".

Section 60(3)(g) - any other matter that the Tribunal considers relevant

1. In respect of s 60(3)(g), the Respondent submitted:

"[T]he Tribunal has already noted the extreme delay in the bringing of the proceedings and the need for leave to be obtained to bring the proceedings out of time. Rounding off, these proceedings have been brought 8 and 9 years after the original decisions and is a factor that should be considered in relation to the question of costs."

1. We agree that the delay is extreme, and that the filing of an appeal years after the delivery of the decisions appealed against does constitute a matter relevant to the consideration whether there are special circumstances warranting an award of costs to the Respondent.

1. The Appellant submitted that there were no special circumstances advanced as would warrant departure from the usual position of each party paying their own costs, and that the bundle of evidence was likely to have been costly and had no relevance to the appeal Notwithstanding it was ultimately agreed that the documents in the bundle were of no assistance in the determination of the appeal, we consider that, in light of the long delay in the bringing of the appeal and the lack of clarity in the appellant's grounds of appeal, the Respondent's action in obtaining and filing those documents was not unreasonable.

1. Although Mr Karelia was represented by Mr Jools, neither of them were lawyers. In those circumstances, Mr Karelia was, in effect, at least in terms of legal expertise, a self-represented litigant.
2. We have taken into account the comments in James (No 2) regarding the need for some tolerance for self-represented litigants who do not understand legal concepts, but also note, as the Tribunal stated in Choi v University of Technology Sydney [2018] NSWCATAD 7 at [37], that the entitlement to apply for costs does not "depend upon an applicant's legal knowledge". Although Mr Jools does not claim to have any legal expertise, his position in the industry suggests that he is not inexperienced in dealing with such matters. We accept that Mr Jools' lack of legal expertise may constitute a factor to be weighed in the balance against a finding that there are special circumstances warranting an award of costs, but it does not carry the weight that might have been attributed to lack of legal expertise if Mr Karelia had been fully self-represented.

1. The matters set out above satisfy us that there are special circumstances and that, further, they warrant the exercise of our discretion to depart from the usual rule in s 60(1) of the NCAT Act that each party pay its own costs of this appeal. We consider that the manifest absence of merit in the appeal and the extraordinary delay in the bringing of the appeal constitute special circumstances notwithstanding the lack of legal expertise held by Mr Karelia and his representative, Mr Jools.
2. An award of costs is not intended as punishment. However, the Appeal Panel is not a forum for bringing appeals which raise no error of law, no other rational basis for granting leave to appeal, and which are - in essence - a complaint about the effect of the decisions under statutory provisions subsequently introduced. The Tribunal's reasons for the decisions also make it clear that the correct legislative tests were applied and the analysis of the evidence and the reasons provide a proper explanation for the findings.
3. Seeking to bring these appeals well out of time, and in these circumstances, is fundamentally contrary to the guiding principle of the Tribunal. Mr Karelia has unnecessarily sought to reagitate decisions without any rational basis to disturb them and it is appropriate for the Respondent to receive an award of costs in its favour.

(1) The application for an extension of time to file the appeal is refused in respect of both decisions sought to be appealed.

(2) The appeal is dismissed.

(3) The Appellant is to pay the costs of the Respondent as assessed or agreed.

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.