Krajsic v eBay Marketplaces GmbH

Principles

1. The relevant principles applying to an extension of time in the Tribunal were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18]-[22] as follows: "[18] Under 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". [19] An 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." [20] The 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. [21] Time 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. [22] The 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 61 at [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]."

Decision

1. The length of the delay is significant.
2. The reasons for that delay are not convincing for five reasons.
3. First, whist the Tribunal's documents referred to by the appellant do not state that appeals must be lodged within 28 days of the decision, and whilst the appellant may not have been given that information at the hearing, there is no statutory or other obligation for that information to be included in those documents or to be given to him at the hearing.
4. Further, to say that that information should have been given to him as the appellant asserts would suggest that all other rights and obligations relevant to a hearing should also be included in the documents and told to all litigants in the Tribunal at a hearing, a result which is clearly impracticable.
5. Second, the Rules set out the relevant information concerning the time in which appeals may be lodged, and they are publicly available in a number of places including on the Tribunal's website. The Tribunal has produced NCAT Guideline 1 - Internal Appeals - which clearly explains the appeal process, including the time for filing of appeals. It is downloadable from the Tribunal's website and is provided as an information resource process for the public. The Tribunal's Registry could also have provided that information if the appellant had asked.
6. Section 36 of the NCT Act imposes a duty on the appellant to co-operate with the Tribunal and to participate in its processes to facilitate the just, quick and cheap resolution of the real issues in the proceedings. It seems to us that those obligations encompass a positive obligation to make enquiries and find out what the time period is for filing an appeal. The Tribunal's website and Registry are obvious and practical places for the appellant to have made enquiries.
7. Third, the fact that the appellant approached various people and offices referred to at [10(5)] above is not a reasonable excuse for the delay. The Tribunal was dealing with a legal dispute, not a political one. The fact the appellant knew the difference between the two is evidenced by his commencement of proceedings in the Tribunal in the first instance rather than pursuing his grievances with those people/offices after he had lost his case in the Tribunal.
8. Fourth, the appellant has given no explanation for the delay for the periods 28 February to 5 July 2019 (28 February being the last day for lodgement of a Notice of Appeal, and being a period of a little over four months) and between 3 December 2019 and 19 February 2020 (the day the Notice of Appeal was lodged, being a period of about 2½ months).
9. In our opinion the appellant's prospects of success on the appeal are negligible.
10. In the appellant's Annexure B: Grounds of Appeal, a document in which the appellant sets out his grounds of appeal, he lists seven matters which he says the Tribunal did not take into account in reaching its decision and 11 findings by the Tribunal which the appellant says were wrong. In addition, he says he was unaware the respondent would have legal representation, that the Tribunal ought to have given more weight to six identified pieces of evidence and seeks to place before us evidence which was not tendered at the hearing.
11. We shall briefly address each of those matters in that order.
12. There is no discernible error of law, nor any other ground of appeal, in the seven matters the appellant says were not taken into account.
13. The first is a submission which was, in substance, dealt with at [86] of the Tribunal's reasons.
14. The second is a submission that the Tribunal did not take into account the appellant's argument that it was unreasonable for the respondent to claim that it could not be contractually liable for the actions of other buyers or sellers, and that it could not rely on disclaimers. There is nothing unreasonable in relying on contractual disclaimers if they exist, and there is nothing unreasonable in the respondent claiming it could not be contractually liable for the actions of other buyers or sellers where the contract does not provide for that liability.
15. The third is a submission that the Tribunal did not take into account that it was unreasonable for the respondent to deny it owed a duty of care. We disagree, but in any event the Tribunal found, at least for the purposes of argument, that a duty was owed. The Tribunal went on to find that if there was a duty owed it was not breached. There is no appeal from that latter finding.
16. The fourth is a submission that the Tribunal did not take into account that PayPal's actions were discriminatory and illegal. That submission was made and considered below, and the Tribunal accepted the evidence that PayPal was an entity unrelated to the respondent and over which the respondent had no control. There is no appeal from that finding.
17. The fifth is a submission that the Tribunal did not take into account that the respondent removed three of the appellant's listings because the respondent received complaints from Apple alleging the appellant had infringed its trademark in a number of instances, but this fact had never been "substantiated". At the hearing the appellant did not contest the fact that the relevant listings infringed Apple's trademark, his contention was that other users were doing so and therefore he should be allowed to do so also. Therefore, the particular point now taken was not taken below. Had it been taken the respondent could have called evidence to rebut the allegation. The law provides that in those circumstances the appellant should not be allowed to take this new point for the first time on appeal.
18. The sixth is a submission that the Tribunal did not take into account that the respondent removed other listings because they "appeared" to violate the respondent's "authenticity policy". At the hearing below the appellant accepted that various of his listings, removed by the respondent, breached one or more of the respondent's policies which were incorporated in the User Agreement agreed to by the appellant. Therefore, the appellant now seeks to adopt a different position to that he adopted at the hearing and that should not be allowed.
19. The seventh is a submission that the Tribunal did not take into account that the appellant did not breach the respondent's duplicate listings policy. At the hearing the appellant admitted that fact and should not now be allowed to adopt a different position.
20. The appellant then lists 11 findings which he says were wrong.
21. The first finding relates to how many items the appellant listed on the platform. That number is irrelevant to the issues in dispute and so, even if the submission were correct, it would not alter the result.
22. The second finding concerns PayPal and is irrelevant to the result below. Accordingly, it is irrelevant to this appeal.
23. The third finding concerns duplicate listings. The appellant says that although the appellant did create duplicate listings, he did not list more than five fixed price listings for phone chargers, and the respondent's duplicate listing policy allows for: "… up to five fixed price listings for identical items to fit specific products, models or brands …"
24. Whilst the terms quoted immediately above is accurate, the appellant overlooks the further terms in the policy which make clear that for listings referring to the same item not to be considered duplicate listings, each listing must also specify a different product, model or brand which fits the item. Therefore, the appellant's submission is incorrect.
25. The fourth finding concerns the date the appellant first became suspicious of other users. The appellant says that he first became suspicious of other users' activities on 21 December 2017 and not 3 December 2017 (as the Tribunal says the appellant stated at the hearing). Whatever date the appellant became suspicious of other users' activities was irrelevant to the outcome of the case and is therefore irrelevant on this appeal.
26. The fifth finding relates to how quickly the respondent removed illegitimate negative feedback. The factual finding was that the respondent acted within five weeks, and the Tribunal held that this period was reasonable. Putting aside the dubious proposition that the respondent was legally obligated to remove illegitimate negative feedback (given the terms of the User Agreement) the relevant finding is not one of fact, but one of law, or of mixed fact and law. That is, the Tribunal found that, assuming a duty of care was owed, five weeks was not unreasonable given the number of listing in the site and other matters. The appellant does not make any submissions indicating any error of law in that finding, he simply submits that it was wrong. We cannot see any error in that finding.
27. The sixth finding has three parts. The first is that the respondent did not take action against other duplicate listings by other users. That is not a "wrong fact" which gives rise to an error of law. The second part is that the appellant could not access/amend his listings. The third was that none of his listings were ever reinstated. Those two assertions are irrelevant to the causes of action sued upon and so are irrelevant on this appeal.
28. The seventh finding is the same as the third alleged wrong finding.
29. The eighth finding relates to the appellant's claimed gross sales for the financial year ended June 2018 in the sum of $97,652, whereas the respondent claimed they were in the sum of $83,816.60. There is no "wrong fact" because the Tribunal did not determine what the appellant's gross sales were having found that the respondent had not committed any legal wrongdoing.
30. The ninth finding is, in substance, the same as the third alleged wrong finding.
31. The tenth finding concerns what actions the respondent took against another seller, and the reason why it took action, and alleges the respondent failed to take action against numerous other sellers. No error of law is discernible in the allegation. The fact that the respondent took action against another seller was relevant only to the allegation that the appellant was in some way "targeted" by the respondent (which the Tribunal found was not the case). The fact that there may have been other sellers contravening their User Agreements which escaped the respondent's attention for a period of time does not mean the respondent is guilty of some legal wrongdoing, and the appellant has not identified how that may be the case.
32. The eleventh finding is the finding that the respondent's actions were not unfair, unconscionable or disproportionate, being matters relevant to the claim against the respondent for unconscionable conduct. No error of law is identified nor is one discernible. The allegation is merely a repeat of what was argued by the appellant in the Tribunal below.
33. The appellant next submits that he was unaware that the respondent would have legal representation when the proceedings were heard before the Tribunal. How that gives rise to an error of law is not apparent. In any event if the appellant felt at some disadvantage, he could have said so to the Tribunal below and could have made an application for an adjournment. He did not do so. Nor did he object to the respondent being legally represented at the time. In those circumstances there was no error in the proceedings being heard with the respondent being legally represented.
34. The appellant then says that the Tribunal ought to have given more weight to six identified pieces of "evidence". In truth, the matters to which the appellant draws attention were not "evidence" but submissions he made in the case below and which are found, in different iterations, amongst the eleven alleged erroneous findings to which we have already referred.
35. Finally, the appellant seeks leave to tender evidence he did not tender at the hearing below.
36. In Ros v Commissioner of Police [2020] NSWCATAP 70 the Appeal Panel constituted by the President and Deputy President Westgarth said this about new evidence on an appeal: [32] There was a discussion of the issues dealing with the nature of internal appeals relevant to the receipt of further evidence in Yuen v Thom [2016] NSWCATAP 243 at [14]-[22]. Receiving further evidence on an appeal was further discussed in Lettau v Artwork Transport Pty Ltd [2017] NSWCATAP 14 affirming Yuen v Thom. We adopt the analysis in these cases. As such, having regard to the guiding principles under s 36 of the NCAT Act, the appeal in this case (which is not by way of a new hearing) is one akin to a rehearing, with the ability to receive further evidence if appropriate. [33] There are a number of other authorities which set out the principles on which the Appeal Panel might consider an application for admission of further evidence. Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision (BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]-[28]). Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant: BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]-[28]; Mielczarek v Commissioner of Fair Trading [2016] NSWCATAP 217; Building Professionals Board v Hans [2008] NSWADTAP 13. Any potential prejudice to the other party upon the receipt of further evidence is also relevant: Lettau v Artwork Transport Pty Ltd at [25]. Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant: ZNX v ZNY [2020] NSWCATAP 41 at [25]. [34] In an appeal which determines whether error has occurred, it is the decision at first instance that the Appeal Panel must examine. The role of the Tribunal at first instance in an administrative review proceeding is to decide what is the correct and preferable decision, as at the date of the Tribunal's decision: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. It is not relevant to an examination of that decision whether the circumstances have changed since that time - affirmed in Mielczarek. [35] Even though the Appeal Panel has power to receive further evidence, its powers in an appeal that is not a new hearing would ordinarily be construed on the basis they are to be exercised for the correction of error. As noted by Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 at [13] - [14]: "If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing. Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance". See also Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 326.
37. So here. This is not a new hearing, but a rehearing. We have examined the evidence the appellant sought to tender but find it only tangentially relevant to the Tribunal's decision at first instance. It would not have produced a different result in the Tribunal and, assessing matters in hindsight, we are not persuaded that the appellant has suffered a serious injustice by that material not being before the Tribunal
38. Therefore, we refuse the tender of the evidence the appellant sought to tender on this appeal.

Conclusions

1. In all of those circumstances we are not persuaded that the appeal has any merit.
2. That fact, taken into consideration with the length of the delay, the lack of a persuasive argument for the delay, the prejudice to the respondent and the other considerations to which we have adverted above, persuade us that the application to extend the time to appeal should be refused and the appeal dismissed.

Orders

1. We make the following orders: 1. The application to extend the time to appeal is refused. 2. The appeal is dismissed.

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 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: 16 July 2020