Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 44, 56, 79, 81

Subordinate

Legislation: ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) r 14, 22

Cases cited: Allesch v Maunz [2000] HCA 40

Commissioner for Social Housing v Hutchings & Gottschalk-Krutsky [2016] ACAT 88

Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56

Giusida Pty Limited v Commissioner for Revenue [2016] ACTSC 275

Gordon Lando v Krown Living Pty Ltd & Ors [2016] ACAT 60

Hales v Commissioner for Social Housing [2014] ACAT 46

Hussain v Fahrmand [2016] ACTSC 122

Legal Practitioner v Law Society of the ACT [2016] ACTSC 203

Wang v Lin & Jiang [2016] ACAT 84

1. The application for leave to appeal out of time is dismissed.

1. On 8 June 2016 an original tribunal ordered that Krown Living Pty Ltd (Krown) pay $9,712.32 to Gordon Lando in relation to work done by him under a contract.[1] The decision is referred to as the 'original decision'. Krown has applied for leave to appeal the original decision out of time. Its application is refused because the explanation for its failure to file the application for appeal on time is vague, I cannot be satisfied that there is an arguable case for appeal or that justice demands that an appeal be allowed to proceed. Having regard to the importance of finality of litigation and the need to respect time limits, it is not appropriate to extend time to appeal.

1. Section 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) allows a party to appeal against a decision made by an original tribunal on a question of fact or a question of law. Appeals are considered within the tribunal by an appeal tribunal.[2] A notice of appeal must be filed no later than 28 days after the date that a decision is made.[3] If time runs out, leave (or permission) has to be sought.[4]
2. An application for leave to appeal is not an appeal in itself. There is no appeal unless leave is granted.[5] Although this decision has been given a case number of the type that is used for appeals; that it is matter of administrative convenience, assisting to distinguish this application from the original file.
3. When deciding whether to give leave, the tribunal must consider the explanation for delay, the merits of the proposed appeal and whether justice requires that the appeal application be allowed.[6]
4. His Honour Justice Refshauge summarised the principles that guide these decisions in Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority).[7] Although he refers to the principles as applying to courts, the principles apply equally to tribunals because like courts, tribunals are required to makes decisions in accordance with law. Bearing in mind that most tribunals' objects include the need to ensure that decisions are resolved quickly,[8] it is arguable that the ACAT should approach these applications with a particular focus on the importance of adhering to time limits. The principles are:

1. Time limits are important and must, prima facie, be obeyed.

2. In order to justify a court acceding to an application to extend time, there must be some material on which the court can exercise its discretion.

3. Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so.

4. There should be an explanation for the delay, as to which any action (other than to appeal) that has been taken by the applicant is relevant.

5. The court must consider any prejudice to the respondent in defending the proceeding, as caused by the delay, and any such prejudice will tell against the extension.

6. The mere absence of prejudice is not enough to justify the extension of time.

7. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted.

8. The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case.

9. Nevertheless, the application is to be determined by the court's view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula.

10. In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.

1. Krown was represented by its director, Ismail Cetinkaya, throughout the proceedings. The original decision was made about two weeks after a hearing that Mr Cetinkaya did not attend. The procedural history is detailed at paragraphs 2 to 18 of the reasons for the original decision.
2. In summary, Mr Lando claimed payment for building work he and his sons did for Krown. Krown filed a response with a two page statement which disputed liability to pay. The response, dated 20 October 2015, said that Mr Lando and his sons were not reliable, additional workers had to be engaged to finish the required work on time and errors with their work had to be fixed by other people. It said:

Due to work being left half done, I did not pay the full invoice sent to me as the amount owing on the invoice is the work that was half complete and also work that had to be fixed.

1. Krown did not file a counter-claim. The application was referred to a hearing because the parties did not reach agreement at a conference held in November 2015. Directions were made requiring each party to file and serve documents including witness statements, invoices, emails and other material they relied on to support their position.
2. Mr Lando filed documents including a detailed time line of events more in the nature of a witness statement, the rates of payment he had agreed with Mr Cetinkaya, building plans and his invoice dated 22 June 2015 which itemised the work for which payment was claimed and the amount claimed for each item and photographs of the work site. Krown filed nothing.
3. Mr Lando did not attend the hearing on 13 January 2016 and his application was dismissed pursuant to section 44(2)(e) of the ACAT Act. That means that the tribunal did not proceed with the hearing or consider the application.
4. Mr Lando applied to have the dismissal order set aside under section 56(c)(i) of the ACAT Act saying that he had not received notification about the date and that he had been waiting for Krown to serve the documents that it relied on so he could get legal advice and prepare for the hearing.
5. A hearing was held on 29 March 2016 - Mr Lando attended, but Krown did not. The dismissal order was set aside, new directions made to give both parties more time to file material and a new hearing date set for 14 April 2016.
6. Krown did not file any material and did not attend the hearing on 14 April 2016. Mr Cetinkaya was telephoned. He said that he had no notice of the hearing and could not attend anyway because he was in Sydney. The hearing was adjourned to 25 May 2016 so that he could attend and directions were made again for documents to be filed and served. No documents were filed.
7. On 25 May 2016 when Mr Cetinkaya did not attend, the tribunal decided to proceed with the hearing in his absence. A review of the reasons shows that the tribunal was satisfied that Mr Cetinkaya knew about the hearing. The member was concerned about the length of time the matter had taken, that there was no formal application for an adjournment and no explanation of where Mr Cetinkaya was or what was of such importance and urgency that it should be given priority over a hearing listed six weeks earlier. The tribunal noted that Krown had not filed documents to support its response as required by the tribunal's directions of 12 November 2015 and 29 March 2016 and 14 April 2016.
8. The difference between this hearing and the one on 13 January 2016 is that the tribunal considered Mr Lando's claim in detail and, to the extent possible, the matters raised by Krown in the statement attached to its original response. The power to proceed in this way is in section 44(2)(d) of the ACAT Act.
9. On 7 June 2016 the tribunal sent an email to Mr Cetinkaya which said that the tribunal's decision would be available to be picked up from the front counter on the following day and that it would be published on-line later that day. The email said that if the decision was not collected it would be sent out in the post.
10. The original decision and reasons were made available on 8 June 2016. The decision was not collected for Krown and was posted to the address provided for service of documents. This was Mr Cetinkaya's residential address. The covering letter with the decision referred to rights to review or appeal and directed attention to information about appeals on the tribunal's website.
11. On 28 June 2016 Mr Cetinkaya sent an email to the tribunal saying that he would like to know if there were any actions he could take to dispute the original decision. He said "I will call again tomorrow to see if there is any action I can take."
12. On 29 June 2016 an email was sent in reply telling him that if he disagreed with the decision the next step would be to appeal. It was suggested that he seek legal advice.
13. On 28 July 2016 Mr Cetinkaya filed an application for leave to appeal out of time and a draft application for appeal. The time for appeal expired on 6 July 2016; his application was 22 days late.
14. The application to extend time to appeal was heard on 11 August 2016. Both Mr Lando and Mr Cetinkaya attended, but neither seemed prepared for the hearing. Mr Lando had been sent the applications and the listing notice for the hearing by email but had only read the listing notice. Mr Cetinkaya did not know what he needed to talk about. He brought no documents with him to the hearing although he had access to some documents on his mobile phone.
15. I explained what the hearing was about and the principles that had to be considered. I asked both parties questions to draw out what each had to say on relevant issues.

1. In his written application for leave Mr Cetinkaya said that he had received the original decision by post and email on 28 June 2016, that he was changing over email systems and that he could not access emails and other information he needed for the appeal until a later date and this caused delay.
2. At the hearing he said that he did not receive the email of 7 June 2016 telling him that the decision was about to be made available, although the email address was correct, because from the start of June to the middle of June the business was moving offices and setting up new email addresses and that during that time emails could not be accessed. Emails sent in that period were not available once the new system was operating.
3. He did not know that a decision had been made until sometime around 28 June - he could not remember how he came to know about it.
4. Mr Cetinkaya agreed that he had received the decision in the mail at some time - he could not remember when. He had no recollection of when he read the decision. He confirmed that the address to which the decision was sent is his residential address.
5. He said that he made an appointment to see his lawyer in Sydney at some time to get advice about the decision. He couldn't recall the date of the appointment and could not find a record about it on his mobile phone. He said that he did not take any documents or a copy of the decision to Sydney to show the lawyer when he went to get advice. He said that the lawyer just asked him what was going on and then told him to gather the documents he needed and put them in. The lawyer didn't say anything about time limits for appeals. Mr Cetinkaya wasn't aware that there was a time limit until he came to lodge his application for appeal.

1. Mr Cetinkaya said that Krown will be prejudiced if the appeal cannot proceed because it will have to pay for work which it asserts was not done and had to be done by other people. Mr Lando will be prejudiced because of delay in recovering money and the need to spend further time dealing with an appeal.

1. Considering the merits of a proposed appeal in the context of an application for extension of time to appeal requires that the tribunal consider whether there is at least an arguable basis for concluding that the original tribunal made an error of fact or of law that is material, in the sense that it is an error that might make a difference to the outcome of the case.[9]
2. Krown's draft application for appeal included an attachment that set out the things about the original decision that Mr Cetinkaya thought involved "lies" or were incorrect. The issues raised are considered below.

1. The draft application opens with paragraphs stating that Mr Lando lied to Mr Cetinkaya about "his company", about whether he traded as a company, whether the number he gave as his ABN was correct, whether he had the necessary insurance, whether he was registered for GST, whether the rates he charged were the "correct" rates or whether he should have charged lower rates. Mr Lando strongly denied that he had told any lies about his business or the way that it operates and strongly asserted that he did have the required insurance.
2. Whether lies or truth, none of these things were relevant to the original decision and none could be relevant to the proposed appeal. Mr Cetinkaya agreed that a contract was entered into with Mr Lando for certain identified work to be done and that the rates of payment for that work were agreed. The application before the original tribunal was a claim by Mr Lando for payments he said were due to him under that contract. It had never been suggested that the contract was somehow unenforceable because for example, Mr Lando did not have the relevant insurance cover, or that the contract had been with an entity other than Mr Lando, or that there was a basis to ignore the agreed rates and substitute different rates of payment. Krown did not file any material for the original proceedings other than a two page document attached to the response. None of these matters were raised in that document.

1. The draft application for appeal identified the fact that the hearing proceeded in Mr Cetinkaya's absence when he had told the tribunal that he could not attend, as something that was incorrect or an error. The draft sets out an explanation about the commitments and meetings that Mr Cetinkaya had in Sydney on 14 April 2016 that prevented him attending the hearing and refers to the demands on a person trying to run a successful building company.
2. The explanation is unhelpful because the hearing was adjourned on 14 April 2016 when Mr Cetinkaya did not attend. He was contacted by telephone. He explained that he was in Sydney and had not received notice of the hearing. The hearing was adjourned to 25 May 2016.
3. For the purpose of dealing with this application, I assume that the intention was to refer to the hearing that proceeded on 25 May 2016.
4. While Mr Cetinkaya did not formally request an adjournment of that hearing, he sent an email on 11 May 2016 saying that he could not attend on 25 May. His email asked that he be contacted with a changed date and time. He sent a further email on the morning of the hearing seeking assurance that another date had been selected. It is reasonable to infer that if he knew that he needed to formally request an adjournment and give a proper explanation of why he could not attend the hearing on 25 May, he would have at least requested an adjournment. The reasons for decision show that the original tribunal knew about his emails and took them into account before deciding to proceed. The tribunal member telephoned Mr Cetinkaya at the start of the hearing to find out where he was and why he couldn't attend, but there was no answer.
5. The tribunal is required to observe procedural fairness.[10] That requires that a party be given a reasonable opportunity to prepare and to present its case at a hearing.[11] A refusal or failure to grant an adjournment can constitute a denial of procedural fairness and this can amount to an error of law for the purposes of an appeal. But procedural fairness does not demand that hearings be adjourned, or require that proceedings be delayed indefinitely in the absence of a reasonable explanation - the interests of all parties must be balanced and a rational or reasoned decision made about whether to proceed or to adjourn. It is clear that the tribunal has the power to decide to proceed with a hearing when a party does not attend - section 44(2)(d) would serve no purpose otherwise.
6. A review of the decision of the original tribunal shows that careful consideration was given to the question of whether the hearing should proceed or whether it should be further delayed.[12] The decision to proceed was made taking into account that the parties knew about the hearing date, the lack of explanation for why Mr Cetinkaya was unable to attend the hearing, the procedural history of the matter, the tribunal's objects, the fact that Krown had not filed any evidence to support its response to the application even though directions had been made on three separate dates for it to do so and the injustice to Mr Lando if the determination of his claim was delayed by granting a further adjournment.
7. Krown had not filed any witness statements from tradesman or anyone who could give evidence about the additional work that had to be done or the work that had to be fixed. There was no material in the form of invoices or quotations showing the additional costs incurred by Krown to fix work that was said to be faulty or to finish off work said to be incomplete. The first directions made by the tribunal at the conference attended by both parties, required that such documents be filed by 10 December 2015 - at that time the events were still quite recent and the documents should have been readily available. Krown had several months to prepare its case and file material, but had not done so. A reasonable opportunity to prepare had been given, as had a reasonable opportunity to present the case. One hearing had already been adjourned because Mr Cetinkaya was not available and his emails to the tribunal, assuming that dates would be re-set at his request without an explanation of the reason for the request, or any indication of a new date that would be convenient to him, did not provide a basis for a further adjournment.
8. The decision to proceed was reasoned and reasonable and I am satisfied that no arguable question of fact or law arises from it.

1. The draft application for appeal refers to findings set out in paragraph 23 of the original decision about the work done by Mr Lando. Mr Cetinkaya says the description is wrong because first, some of the work invoiced was not done and other people had to be brought in to do it and second, some work was not done properly and had to be fixed.
2. As to the first issue, Mr Lando disagreed that his invoice included charges for work he didn't do. He acknowledged that he did not finish all the work he contracted to do because he left the site early as a result of a falling out with Mr Cetinkaya. He said however, that the invoice he sent after he left the site and that was the subject of his claim, only included charges for the work that was actually completed and that this was confirmed by the original tribunal by checking the invoice against the plans. When asked to identify the items on the invoice that had not been done; in other words the things that were incorrect, Mr Cetinkaya referred to work that needed to be fixed. He could not identify any work itemised in the invoice that had not been done. He said he would have to go through his books again to check.
3. It is hard to understand why that is necessary given that the draft application for appeal, with its assertion that the tribunal's findings were incorrect in this regard, had been prepared only about two weeks before the hearing. The emails attached to the draft application do not show that work invoiced was not done, or that the tribunal's findings about what work was done were incorrect. I am satisfied that there is no evidence to support this assertion and it does not give rise to an arguable case that the tribunal's decision was in error.
4. As to the second issue, Mr Lando disagreed that his work needed to be fixed. He said he had worked off the plans, preparing frames and windows off site and if there were problems when frames were fitted, it was because the slab was not level or there were other problems with work done by others. He and his sons left the site at the end of June 2015 and he understands that other people worked on site after that.
5. The draft application for appeal attaches documents which were said to "stat(e) the things that were wrong with the work that Mr Lando started." The documents include an inspection report received by Mr Cetinkaya on 24 August 2015 and emails of 6 and 7 August 2015 and of 1 and 2 October 2015 from the owner/developer identifying work to be fixed. The documents certainly refer to various units and identify a range of work that has to be rectified but they do not specifically mention Mr Lando or his work and they clearly include work that was not connected to Mr Lando.
6. Mr Cetinkaya said these emails and the inspection report had not been produced before because he got rid of them when Mr Lando's application had been dismissed (in January 2016) and it had taken time to retrieve them. Accepting this, it doesn't explain why the documents weren't produced with the response filed on 20 October 2015 when some of the emails were very recent, or why they weren't filed by 10 December 2015 in accordance with the first directions.
7. Mr Cetinkaya told me that he does not know what the cost of fixing the problems was because he had yet to locate the relevant invoices. His said that his decision to pay only $10,000 of Mr Lando's $19,067 invoice in 2015 was not based on a calculation of the actual cost of fixing Mr Lando's work.
8. I am not satisfied that these documents, if available to the original tribunal, would have made a material difference to the outcome, particularly absent any connection between the amount not paid and the reason asserted for not paying. I have already found that Krown had a reasonable opportunity to prepare its case and to present its case and that the Tribunal's decision to proceed on 25 May 2016 was reasoned and reasonable. This further information, which was in existence when the response was filed but was not made available, does not establish an arguable case for appeal.

1. The draft application for appeal said that the tribunal's finding that Mr Cetinyaka laughed at Mr Lando when he asked for payment of the balance, was incorrect - an error of fact. A review of the original decision shows that this was not a finding that made a material difference to the outcome. The decision was made based on other findings taken from Mr Lando's oral evidence, photographs and a letter dated 6 November 2015 from Ausem Development & Construction. Even accepting that this finding was an error, it made no difference to the outcome and does not establish an arguable case for appeal.
2. The draft application for appeal refers to a letter from Ausem Development & Construction referred to in paragraph 44 of the reasons for decision. This letter confirmed that Mr Lando and his sons worked on the site in May and June 2015 and said that the work done was inspected and passed by the certifier without any rectification faults. Mr Cetinkaya says this letter is incorrect to the extent to which it infers that the work of Mr Lando and his sons did not require rectification. Work was done by other people to fix problems identified in the inspection report of 24 August 2015 from the same company, before it was inspected and passed by the certifier.
3. I do not accept that the inspection report could not have been made available at an earlier stage. Mr Lando's application was lodged on 23 September 2015, a few weeks after the inspection report was prepared. It was not attached to Krown's response, or filed as directed in December 2015. It lists a number of things needing attention, some of which clearly have nothing to do with Mr Lando. It does not say anything about the cost of rectifying the highlighted problems that were said to be related to Mr Lando. Krown had a reasonable opportunity to present this material earlier but did not do so. It does not demonstrate that any aspect of the decision to proceed in Mr Cetinkaya's absence on 25 May 2016 was in error.
4. The draft application refers to Mr Lando's application having been dismissed on 23 March 2016 when he failed to appear. That in fact occurred on 13 January 2016. Mr Cetinyaka says he has been treated unfairly because the dismissal order was set aside in favour of Mr Lando and yet the order made when he did not appear is not set aside.
5. He is right to say that there is a difference in treatment but that is because the circumstances are different. On 13 January 2016 the application was dismissed in default of an appearance, it was not heard. Mr Lando had filed evidence in support of his claim and there was no basis for supposing that he did not seriously intend to pursue it. Third, there is some doubt about whether Mr Lando knew of the 13 January hearing date. Setting the dismissal aside in order to ensure that Mr Lando had a reasonable opportunity to present his case was reasonable in those circumstances. Mr Cetinkaya was treated in the same way on 14 April 2016.
6. The hearing listed on 14 April 2016 was adjourned at Mr Cetinkaya's request when he said he had not received notice of the hearing and could not attend.
7. He clearly knew about the hearing on 25 May 2016, he had not explained why he could not attend, he had not filed any evidence to support his response to the application when he should and could have done so in October 2015 when filing his response, or in December 2015 when first ordered to do so, or after the second or third set of directions was made. There was nothing in his approach to the case that indicated a serious intention to pursue his response to the application.

1. The time limit for appeals should be respected unless there is a clear justification for extending time. Mr Cetinkaya's explanation as to why there was a delay was very vague. I am not satisfied that any arguable questions of fact or law arise from the original decision, or that an arguable case for appeal is demonstrated, or that there is a miscarriage of justice, or that for any reason, justice demands that leave should be granted to Krown to appeal out of time. The application for leave to appeal out of time is therefore dismissed.

[1] The tribunal's decision is reported as Gordon Lando v Krown Living Pty Ltd & Ors [2016] ACAT 60

[3] Rule 14, ACAT Procedure Rules 2009 (No 2)

[4] Rule 22, ACAT Procedure Rules 2009 (No 2)

[5] See the discussion of this in Legal Practitioner v Law Society of the ACT [2016] ACTSC 203

[6] Hussain v Fahrmand [2016] ACTSC 122, Wang v Lin & Jiang [2016] ACAT 84

[7] [2015] ACTCA 56 at [20] - [21]

[8] See s 6(c) and s 7(a), ACAT Act 2008

[9] See the consideration of the approach that the ACAT should take to appeals in Giusida Pty Limited v Commissioner for Revenue [2016] ACTSC 275 at [35] - [42]

[11] Allesch v Maunz [2000] HCA 40 at [35] -[40], Hales v Commissioner for Social Housing [2014] ACAT 46 at [55] - [58], Commissioner for Social Housing v Hutchings & Gottschalk-Krutsky [2016] ACAT 88 at [45] - [60]