Reznitsky v Commissioner of Fines Administration

The hearing

1. The appeal was listed for hearing on 23 February 2024. The appeal was originally listed for hearing before an Appeal Panel comprised of Principal Member Seiden (as her Honour then was) and me. At the commencement of the hearing Principal Member Seiden identified that she had a potential conflict of interest and recused herself. At the direction of the President, the appeal continued before me alone.

The scope and nature of internal appeals

1. By virtue of s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exhaustive list of questions of law: 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 (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. The principles applicable to the grant of leave to appeal were considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [82] - [84].
4. At [84] the Appeal Panel held: "(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];"

Grounds of appeal

1. In the Amended Notice of Appeal the appellant set out three grounds of appeal. The grounds as expressed by the appellant are lengthy and argumentative. The substance of the three grounds may be summarised as follows: 1. The Principal Member misguided herself about the nature, the purpose and the need for further conduct of the proceedings. 2. The appellant never intended to withdraw his application from the Tribunal. 3. The appellant was not given the opportunity to "argue and reply" to the orders made by the Tribunal on 3 August 2023.
2. Only the third of those grounds arguably raises a question of law, that is whether the appellant was denied procedural fairness.
3. It is convenient to set out at this point the relevant statutory provisions, being ss 55 and 59 of the NCAT Act: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure. 59 Powers when proceedings settled (1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if - (a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. (2) The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement.
4. The essence of the appeal is that the appellant maintains that he was successful in the proceedings, as the respondent had recognised the validity of his position and had effectively capitulated by withdrawing the suspension of his licence. The appellant maintains that the Tribunal was in error in dismissing the proceeding pursuant to s 55(1)(a). The appellant insists that the proceedings had settled and the Tribunal should have made orders pursuant to s 59.
5. Given the way in which the appellant articulated his appeal, which did not align closely with the grounds of appeal, it is convenient to deal with the appellant's arguments, as explained in his oral submissions, before addressing the specified grounds of appeal.

Extension of time

1. The first issue requiring determination is whether the appellant requires an extension of time for filing his appeal and, if so, whether such extension should be granted.
2. The appellant filed no formal evidence to support his claim that he only became aware of the decision on 20 October 2023. However, I do not consider it necessary to determine that question. It is clear that the appellant was "notified of the decision", in the manner specified by the appellant in his application, on 3 August 2023. Rule 13(2)(g) clearly authorised service on the appellant at the email address which the appellant had provided. Accordingly, I am satisfied that the appeal was filed outside the time specified in the NCAT Rules for the filing of an appeal and, unless the appellant is granted an extension of time for the filing of his appeal, the appeal must be dismissed.
3. The Appeal Panel has power pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to grant an extension of time.
4. In Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22, the Appeal Panel considered the principles which govern the granting of an extension of time. The Appeal Panel stated, at [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 416 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 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]."
5. The delay in this case was about six weeks. That is not insignificant. The appellant's explanation for the delay is plausible, albeit not supported by sworn evidence. The respondent does not suggest that any prejudice has been suffered by reason of the delay.
6. However, because, for the reasons which follow, I consider that the appeal proceedings are entirely without merit, I do not consider it appropriate to extend the time for the filing of the appeal.

The merits of the appeal

1. The appellant's case, as outlined in oral submissions, was: 1. He did not withdraw the proceedings; 2. There is a difference between discontinuing and withdrawing; 3. The proceedings were resolved in the appellant's favour, "so I am the winner", in his words; 4. Section 55 deals with a "wrongful application", which I understand to mean an application which would have failed if taken to hearing; 5. Because Transport for New South Wales withdrew the suspension of the appellant's licence, the proceedings had been settled in the appellant's favour and an order should have been made pursuant to s 59 acknowledging that success.
2. The appellant's submissions betray a failure on his part to comprehend the difference between the resolution of the underlying dispute and the settlement of proceedings in the Tribunal.
3. The letter from Transport for New South Wales does not specify the basis upon which the suspension was withdrawn. Manifestly, it does not involve any express acknowledgement that the suspension was not justified. More significantly, the withdrawal of the suspension of the appellant's licence did not constitute any resolution of the proceedings in the Tribunal. It may have rendered the continued prosecution of the proceedings unnecessary, but it did not mandate that the appellant was successful in the proceedings.
4. It was the appellant who elected not to continue to prosecute the proceedings. The "Notice of Discontinuance" was an unequivocal statement by the appellant that he did not intend to continue to prosecute the proceedings. There could be in this, in this context, no distinction between "discontinuance" and "withdrawal".
5. The NCAT Act does not provide for the discontinuance of proceedings. That is a procedure available under Part 12 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which regulate procedure in civil matters in the courts of NSW (as outlined in Schedule 1 to those rules) but are not applicable in the Tribunal.
6. There is no provision in the UCPR for a party to withdraw proceedings, although the rules do make provision for the withdrawal of an appearance or matter raised in a defence.
7. In the context of s 55 of the NCAT Act, withdrawal of proceedings is the equivalent of discontinuance under the UCPR.
8. The Tribunal gave the respondent the opportunity to object to the withdrawal of the proceedings and gave both parties the opportunity to make submissions about whether an order should be made dispensing with a hearing.
9. The appellant asserted that he did not receive the notice from the Tribunal sent on 2 August 2023, but that appears to be because he did not check his email, notwithstanding the clear indication in the Tribunal's application form that, if an email address was provided as an address for service, it was necessary to regularly check that email address.
10. The Tribunal dispensed with a hearing. That was a discretionary decision. Section 50 of the NCAT Act requires that the parties be afforded the opportunity to make submissions concerning whether a hearing should be dispensed with. That occurred.
11. The exercise of a discretion is subject to review on appeal only on the bases set out in House v The King (1936) 55 CLR 499 at 504-505, that is: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
12. The appellant does not make any submission that the decision to dispense with the hearing was erroneous in the sense identified by the High Court in House v The King.
13. The Tribunal had no power to make any order pursuant to s 59 of the NCAT Act. That section requires that the parties have reached a settlement outside the hearing process: see Aboriginal Housing Office v Harrison [2021] NSWCATAP 97 at [105].
14. There was no "agreed settlement" between the parties. Accordingly, no occasion for dismissal of the proceedings pursuant to s 59 of the NCAT Act had arisen.
15. It follows from the foregoing that the appeal cannot succeed.
16. To make explicit the answer to each of the appellant's grounds of appeal which is implicit above: 1. The Principal Member did not misguide herself about the nature, the purpose or the need for further conduct of the proceedings. The appellant filed a notice which explicitly and unequivocally indicated an intention to discontinue, that is no longer prosecute, the proceedings. In those circumstances the only appropriate course was dismissal pursuant to s 55(1)(a) of the NCAT Act. 2. Regardless of the appellant's subjective state of mind, the appellant communicated by his Notice of Discontinuance an explicit and unequivocal intention not to prosecute the proceedings. The Tribunal was entitled to act upon that communication. 3. The appellant was given the opportunity to seek an oral hearing in relation to his "Notice of Discontinuance" but, apparently by reason of his failure to check his email despite explicit instructions to do so regularly, did not do so. The appellant was also served, at the email address notified in his application, with the respondent's letter responding to the Tribunal's directions of 2 August 2023. It cannot be said that the appellant was not given an opportunity to be heard in relation to the making of orders dismissing his application. There was no failure to afford the appellant procedural fairness.
17. I do not overlook the fact that the Tribunal's directions required submissions to be filed by 7 August 2023, yet the order dismissing the application was made on 3 August 2023. Had there been any suggestion that the appellant would have filed submissions by 7 August if the application had not been dismissed on 3 August, a question may have arisen whether the appellant had in fact been afforded procedural fairness. However, the appellant did not make any such suggestion. It is clear that the appellant was not pre-empted in the preparation of any submission by the publication of the order on 3 August 2023.
18. In any event the orders made by the Tribunal merely reflect what the appellant asked the Tribunal to do.

Costs

1. The respondent sought an order for costs in the event that 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. (5) In this section - costs includes - (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.insert
3. The respondent submitted that there were special circumstances in this case, being that: 1. The original proceedings brought by the appellant were without merit as the Tribunal had no jurisdiction to review the relevant decision; and 2. The appeal is misconceived and lacking in substance and the appellant is responsible for prolonging unnecessarily the time taken to complete the proceedings.
4. In circumstances where there has been no hearing on the merits of the original application, I do not consider it appropriate to express an opinion concerning the question of the Tribunal's jurisdiction to review the relevant decision for the purposes of a costs application.
5. I am not persuaded that the appellant has been responsible for unnecessarily prolonging the time taken to complete the appeal. The respondent did not point to any conduct of the appellant which could be said to have unnecessarily prolonged the appeal. The appeal was filed on 14 November 2023. It was listed for directions on 22 December 2023, and on that date fixed for hearing on 23 February 2024. The hearing proceeded on 23 February 2024.
6. I am, however, satisfied that the appeal was misconceived and lacking in substance.
7. Section 60 of the NCAT Act, and particularly paragraphs 60(3)(c) and (e), was considered by the Appeal Panel 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])."
8. 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) 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."
9. 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'".
10. I have had full regard to the proposition that the appellant is not legally qualified and or represented. However, the fact remains that the appeal was without merit, that is misconceived and lacking in substance, and had no tenable basis in fact or law. The appeal's lack of merit should have been clear to the appellant if he had been prepared to contemplate that his confidence in the rightness of his position may have been misplaced.
11. I find that there are special circumstances warranting the making of an order for costs and I am satisfied that it is appropriate to order that the appellant pay the respondent's costs of the appeal as agreed or assessed.

ORDERS

1. My orders will be: 1. Application for an extension of time for filing the appeal refused. 2. Appeal dismissed. 3. The appellant is to pay the respondent's costs of the appeal as agreed or assessed.

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: 09 July 2024