Paton v Orton

Appellant's contentions 7Until April 2014 the appellant was represented by Mr Austin McRae solicitor. However on approximately 23 April 2014 Mr McRae indicated to the appellant that he wished to be relieved of his retainer as his practice had changed such that it had become "inefficient and impractical" for him to handle litigation matters. Accordingly, by arrangement with the appellant Mr Hemsley, solicitor was engaged to act for the appellant. 8At the time of the change of solicitors it appears as if the position was that the appellant had filed points of claim and his evidence, and that the respondent had filed points of defence and evidence. That had occurred on 14 April 2014. 9Mr McRae has filed a statutory declaration in which he deposes to aspects of the history of his involvement. He records the change of solicitor in April 2014 referred to above and also deposes that he was re engaged by the appellant in October 2014. This apparently occurred because Mr Hemsley had not been able to give the proceedings attention due to illness within his family. 10Mr McRae's statutory declaration states that in his opinion the application has not been properly prepared for the forthcoming hearing in that there is no evidence in reply to:

• the respondent's statement; or
• the respondent's expert report. 11Mr McRae's statutory declaration also states that the respondent's evidence introduces new material concerning interactions between the respondent and the appellant's architect. 12Mr McRae states that had he acted for the appellant during the period May to October 2014 he would have sought directions for the filing of evidence in reply. 13Mr McRae's opinion is that the appellant's prospects of success will be unfairly prejudiced if the appellant is not able to file evidence in reply to the respondent's case and that any prejudice caused to the respondent by the appellant filing further evidence and by the hearing date being vacated can be dealt with by an appropriate costs order made at the conclusion of the proceedings.

Respondent's contentions 14The respondent's solicitor has filed a reply to appeal in which the respondent opposes the orders sought in the appeal. 15The respondent's solicitor makes the submissions which are summarised in the paragraphs below. 16On 5 May 2014 Mr Hemsley sought leave to file further material relating to an issue in the proceedings and the Tribunal made orders that any evidence relating to this issue be filed and served by 26 May 2014 with the respondent being given leave to respond by 23 June 2014. No evidence was filed by the appellant by 26 May 2014 or at all. Those orders were made by consent. 17On 28 July 2014 the Tribunal ordered, by consent, that the parties should advise the Tribunal by 30 September of available dates for witnesses and representatives. In addition an order was made that on or before 30 September 2014 all experts are to meet and file a joint experts report or reports (or combined Scott Schedule as appropriate). The respondent's contentions state that the experts met and a joint expert report has been filed. 18The respondent contends that on 13 October 2014 the appellant's solicitor "sought general leave to file unspecified additional material and add an unspecified further item of claim". In addition, the respondent contends that the appellant did not produce a copy of the additional material or a draft amended notice of claim to support the application before the Member. No copy of the additional material or draft amended notice of claim has been provided in this appeal. 19The respondent notes that the matter has been fixed for hearing on 15 and 16 December 2014 and that an agreed bundle of documents has been filed as ordered by the Tribunal on 27 October 2014 together with an agreed statement of issues. 20The respondent contends that the appellant has had since 14 April 2014 to consider the respondent's material and in effect did not take any action with respect to that material for six months. 21The respondent further contends that he will suffer prejudice by reason of the lengthy delay and that the prejudice cannot be cured by a costs order.

Appeal Panel's decision 22The Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides in section 80 (2)(a) that an internal appeal may be made in the case of an interlocutory decision of the Tribunal at first instance with the leave of the Appeal Panel. 23This is an appeal from an interlocutory decision and accordingly the leave of the Appeal Panel is required. An 'interlocutory decision" is defined in s 4 of the NCAT Act to include "the granting of a stay or adjournment", "the extension of time for any matter" and "any other interlocutory issue before the Tribunal." The interlocutory decision in this case is to refuse to adjourn the hearing so that evidence in reply could be filed. Alternatively, the decision could be characterised as a refusal to extend time for evidence in reply to be filed . 24Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) provides that an appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later) unless the Tribunal grants an extension under section 41 of the NCAT Act. This appeal was filed outside the 28 days required under the rule by approximately 1 week. 25The appellant's submissions attempt to explain the delay in filing the appeal by stating that after 13 October 2014 the appellant briefed counsel to advise and appear and that counsel recommended this appeal following a meeting with the appellant on 10 November 2014. 26One of the features of this appeal is the ambiguity surrounding the nature of the additional evidence which the appellant wishes to file. There are a number of different descriptions of such evidence. For example, the decision of 13 October 2014 referred to an application to file "additional expert evidence" and to further amend the application by adding another item. As against that description the statutory declaration of Mr McRae refers only to evidence in reply (and not an amendment to include an additional item) but is not limited to expert evidence. 27Furthermore, McRae does not explain the need for further expert evidence in the light of the apparent filing of a joint experts' report 28By reason of the failure of the appellant to be specific as to the nature of the evidence to be filed in reply it is difficult for the Appeal Panel to gauge whether the late filing of evidence would cause prejudice to the respondent and whether a refusal would prejudice the appellant.

Application to extend time to file appeal 29The Tribunal has provided guidance in a number of cases on the considerations to the borne in mind when determining applications to extend time under section 41 in the context of the late filing of a Notice of Appeal: Di Salvo v Leung [2014] NSWCATAP 44. The relevant considerations maybe summarised as follows: (i)the length of the delay; (ii)the reason for the delay; (iii)the extent of any prejudice suffered by the respondent; and (iv)the appellant's prospects of success, that is usually whether the appellant has a fairly arguable case. 30In addition the discretion to extend time can only be exercised in favour of an appellant upon strict proof that compliance with the rules will work an injustice upon the appellant: Di Salvo v Leung at [21] and [22]. 31In this case the length of the delay is only approximately 1 week but in the context it is a week of some significance because of the hearing is scheduled for 15 December 2014. 32The reason for the delay in lodging the appeal within time is attributed to the fact that counsel was not able to give advice until on or after 10 November 2014. Assuming the advice had been given by counsel on 10 November 2014 the appeal could have been filed on or shortly after 11 November 2014 which would have been only a day out of time. There is no explanation as to why that did not take place. In any event, the appellant had engaged Mr McRae and it could reasonably be expected that he would have applied his mind to the question of whether the decision of 13 October 2014 ought to have been the subject of an appeal. In the opinion of the Tribunal the reason for the delay is inadequate. 33So far as prejudice is concerned, it is clear that the respondent will be prejudiced if this this long standing piece of litigation is not dealt with this year. It appears as if arrangements have been made for witnesses including experts to be available in Wagga on 15 and 16 December 2014. If the hearing date were to be vacated these arrangements would have to be altered and the respondent and witnesses would have to be re engaged for a hearing to occur next year. No specific date for a resumed hearing can presently be indicated. 34So far as the appellant's prospects of success are concerned it is difficult to assess whether a refusal to permit the appellant to adduce further evidence would be prejudicial to his prospects of success. Mr McRae has expressed the opinion that the appellant will be unfairly prejudiced. However, there is insufficient material provided by the appellant to enable the appeal panel to be satisfied that strict compliance with the rule requiring the Notice of Appeal to have been filed earlier will work an injustice to the appellant. The onus is on the appellant to provide sufficient material to support a finding that an injustice would likely be suffered if an extension were not granted. 35A further consideration is the requirement of section 36 of the NCAT Act which describes the "guiding principle" for the conduct of proceedings before the Tribunal. In summary the guiding principle is that the Tribunal must facilitate the just, quick and cheap resolution of the real issues in the proceedings and further that persons (including parties and legal practitioners) are under a duty to cooperate with the Tribunal to give effect to the guiding principle. 36In the opinion of the Appeal Panel there has been a failure by the appellant and his legal representative to comply with the obligations set out in section 36. In particular, the appellant has failed: (a)to comply with the consent direction made on 5 May 2014; and. (b)to consider what evidence in reply should be filed between 14 April 2014 and October 2014; and (c)to consider the ramifications of the unsuccessful application decided on 13 October 2014 and to file a Notice of Appeal within the required time. 37In addition to the guiding principle in section 36 of the NAct, the Tribunal is necessarily guided by principles enunciated by the High Court. In Aon Risk Services Australia v Australian National University [2009] HCA 27 (5 August 2009) the High Court pointed out that it is not always the case that prejudice caused by vacating a hearing date can be compensated by a costs order. In our view a costs order in favour of the respondent will not adequately compensate the respondent. He will be further prejudiced by the delay in resolving the dispute. 38Having regard to the matters referred to above, the Appeal Panel is not satisfied that it ought to exercise its discretion to extend time for the Notice of Appeal to be lodged and leave to appeal is refused. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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: 10 December 2014