Kida Park Pty Ltd t/as Capital Steel Buildings v Rutten

NCAT Appeal Panel|2015-03-03|Before: Dr J

Introduction

On 13 October 2014, the Tribunal ordered the applicant/appellant (Kida) to pay the sum of $20,080 to the Respondent (Ms Rutten) for defective and incomplete work. Those orders were pronounced orally, as were the reasons for the decision, and this was done in the presence of Ms Rutten and of Mr David Goldsmith, then and now the representative of Kida. The time for the 28 day period within which an appeal may be lodged then began to run. It expired on 10 November. The Notice of Appeal was not received by the Tribunal until 3 December. An appeal and an application for extension of time were set down to be heard together by an Appeal Panel on 3 March 2015. For the reasons which follow, we decline to extend time.

Extension of time - principles

An Appeal Panel which included the President, considered the relevant principles in Habib v State of New South Wales [2014] NSWCATAP 70 at [71]-[75] as follows: 71. Section 41 of the Act provides: (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 72. The discretionary power to grant an extension of time under s 41 of the Act is unfettered but it must be exercised judicially and having regard, among other things, to s 36 of the Act and the need "to facilitate the just, quick and cheap resolution of the real issue in the proceedings". 73. The discretion to extend time is given for the sole purpose of enabling the Tribunal, in this case the Appeal Panel, to do justice between the parties. In order to determine whether the rules will work an injustice, it is appropriate 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. It is also appropriate to consider the prospects of the appellant succeeding in any application for leave to appeal and on the appeal itself. In order to justify the Appeal Panel extending the time, there must be some material upon which the Appeal Panel can exercise its discretion. See Nanschild v Pratt [2011] NSWCA 85 at [38]; Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2] and the authorities referred to there; and also Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16] and Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. 74. Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings and to achieve finality in litigation. For these reasons, time limits should generally be strictly enforced unless the interests of justice require that an extension be granted. 75. As set out in Jackson v Land and Housing Corporation [2014] NSWCATAP 22 at [22], the relevant considerations in deciding 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 appellant 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 appellant 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].

Length of delay and reasons for delay

The length of delay is a little over three weeks. Kida wrongly argues that in fact, there was no delay because it says it received notice only on 3 November 2014. In its notice of appeal, it said this "decision was sent to [Kida's] accountant who then forwarded [it], delaying receipt. My computer hard drive completely failed on 24/10/2014, losing all data. It has taken me considerable time to repair computer and obtain relevant material."
That explanation should mention, but does not, that Kida's representative Mr Goldsmith was present when the orders and reasons were orally pronounced on 13 October 2014. He thus received notice on that date, not any later date. At the Appeal Panel hearing on 3 March, he initially denied, but later accepted that he had been present when reasons were orally delivered, as well as the terms of the order.
Although the delay is not lengthy, the explanation is not adequate. Indeed, there is none. Given the strictness of the time limits noted above, lack of explanation for the delay weighs against granting an extension of time, see e.g. the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [103] that: "Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for". As the Appeal Panel said in Habib at [74]: "limits should generally be strictly enforced unless the interests of justice require that an extension be granted".

Prejudice to the respondent

Mrs Rutten said that the proceedings had been extremely distressing to her, and had cost her a great deal of time and money. We are not here dealing with her application for costs for the proceedings below, which is pending, nor any application for costs before us, although the orders we made on 3 March make provision for such an application to be made. Nevertheless, we accept that although the matter was ready to be heard on all issues on 3 March, the respondent was suffering distress at the continuation of the proceedings, rather than their cessation by refusal of the extension, and that is also a factor weighing against an extension of time. (In contrast, personal distress would be irrelevant were the respondent a corporate or government entity).

Prospects of success

The third and decisive factor here is that there are no prospects of success, by which we mean that none of the grounds in the notice of appeal raises a question of law, and we would not grant leave to appeal.
The Civil and Administrative Tribunal Act 2013 (NSW) ('the Act') provides for appeals as of right on a 'question of law': s 80(2)(b), and also permits appeals with leave of the Appeal Panel.
The decision below was made in the Consumer and Commercial Division of the Tribunal. It was a "Division decision" within the meaning of cl 12(1), Schedule 4 of the Act: see the definitions of "the Division" and "Division function" in cl 1 and the provisions of cl 3(1) of Schedule 4. Thus, we must be satisfied of the matters set out in cl 12 of Schedule 4 to the Act before the discretion to grant leave can be exercised. That clause provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
A further difficulty faced by Kida is that it did not provide us with written reasons for the decision below. That was a difficulty of its own making. Kida did not apply for a statement of reasons within the 28 day period set out in s 62(2) of the Civil and Administrative Tribunal Act ('the Act'), nor did it seek to transcribe the apparently short reasons from the sound recording of the hearing, although it had the time and opportunity to do so. Nevertheless, at the hearing on 3 March 2015, the representative of Kida eventually agreed with the respondent that the reasons given below came down to a simple proposition, namely that the Tribunal accepted the expert evidence put forward by the respondent to the appeal, and preferred that to the non-expert evidence provided on behalf of Kida.
Kida also accepted that it had made a forensic decision not to put on expert evidence at the hearing of the matter below.
Turning to the grounds of appeal, Kida sought to adduce further evidence at the hearing. It accepted that the evidence was not new, in the sense that it was either unattainable or not in existence at the hearing. In those circumstances, we would not have permitted that evidence now to be adduced.
The notice of appeal asserts that the evidence from the respondent's expert witness ought not to have been accepted. That is evidently a question of fact, not law, as are the other grounds.
In relation to the ground that the decision was not fair and equitable, the notice of appeal states: Expert witness, Shaun Moore, was not full and frank with the entire extract which he referred to in evidence. All supporting documentation refers client to seek insulation installation to the insulation manufacturer for installation practices. [sic] The installation of insulation and metal roofing of this project is within manufacturer's guidelines.
In relation to the ground that the decision of the Tribunal below was against the weight of evidence, the Kida describes the evidence given at the hearing as: 1. Production of letter from Green Insulation confirming that my method of installation was appropriate and exceeded recommendations. 2. That witness Moore's evidence was a recommendation only and not the only method available.
As to the evidence given by the other party, in the Notice of Appeal, Kida states that this was: 1. Part production of section 5. 2. That section 5 was the only method available and approved. 3. Incorrect evidence that custom orb is 600 mm wide and is screwed every third rib.
Kida claims that the decision that the Tribunal should have made was: That based on section 5 is only a recommendation, weight should have been given to the insulation manufacturer's confirmation that method used was appropriate.
The principles applicable to the granting of leave to appeal were summarised by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84] as follows: The general principles derived from these cases can be summarised as follows: (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; (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; (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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
Applying these principles, it is clear that none of the factors favour the grant of leave. For the purposes of the appeal, Kida agreed that the essence of the reasons for the decision below was that the evidence of Ms Rutten's expert was preferred to Mr Goldsmith's lay evidence. On the face of it, that course of reasoning raises no question of principle, public importance, or matters of administrative policy of general application. It does not demonstrate that the primary decision maker was arguably wrong, or that there is a bona fide challenge to an issue of fact which could not have been challenged by the losing party deploying evidence, including expert evidence, at the hearing.
Further, it has not been established to our satisfaction that there is a factual error unreasonably arrived at or clearly mistaken, nor that the Tribunal went about its fact finding process in such an unorthodox way or manner that it was likely to produce an unfair result, nor that it would be in the interests of justice for it to be reviewed and nor is there any demonstration of a likely injustice.
Thus it follows that even were time to be extended, there is no ground of appeal as of right and we would not have granted leave to appeal on any remaining ground. There is no purpose to be served in granting an extension of time in which to make such an application. To put it another way, the merits of the application are so low that time should not be extended. For these reasons, we made the orders set out above on 3 March 2015.

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 13 March 2015 - Date of orders changed from 03 March 2014 to 03 March 2015. 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: 13 March 2015

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