On 30 March 2020 the Consumer and Commercial Division of the Tribunal (the Tribunal) made orders in a claim brought by the appellants. That claim involved the supply and installation of hybrid flooring in the appellants' home. The appellants were dissatisfied with the installation and claimed compensation in the amount of $15,000.00.
The Tribunal dismissed that claim, but instead made a "work order" directing the respondent to undertake certain repairs in a proper and workmanlike manner.
On 17 December 2020, the appellants filed a Notice of Appeal against that decision.
Unless the Appeal Panel extends the time for the filing of a Notice of Appeal, appeals must be filed within 28 days: see rule 25(4) of the Civil and Administrative Tribunal Rules 2014.
For the following reasons, we have decided not to grant the appellants an extension of time to file their Notice of Appeal, and therefore to otherwise dismiss the appeal.
[2]
Relevant Principles
The Tribunal's decision was made on 30 March 2020 (Decision), and the appellants state that they received it that day. Accordingly, the Notice of Appeal is almost eight months out of time.
We note that the appellants recognise that they require an extension of time, as they have indicated "yes" to that question in the Notice of Appeal, and, when asked for an explanation as to why an extension is needed, have responded:
"COVID
Mental Health
Stacey Robb working in COVID Clinic
Time frame associated around (20/34028 GEN)".
We asked Mr Robb, who represented himself and his wife, to expand on these matters. Mr Robb said that it was because that he had learned, after the Decision, that the respondent had "removed" the consumer guarantees and warranty protection. This was, according to Mr Robb, because of the respondent's lack of due care and skill during the installation of the floor. He also referred to the impact of the global pandemic and to another, related, case he brought against the respondent in the Tribunal which took four months. He told the Appeal Panel that at one point he had been willing to "throw it all away" due to his mental state, but he did not have any medical evidence in support. Finally, he said that life "got away".
Section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) permits the Tribunal to grant an extension of time in which to file an appeal.
The Tribunal's power to grant an extension of time in which to lodge an appeal was considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and confirmed in Di Salvo v Leung [2014] NSWCATAP 44.
Those authorities confirm that:
1. The discretion to grant an extension of time is unfettered under s 41 but it must be exercised judicially. In addition, it must also be exercised having regard to the statutory command in s 36 of the NCAT Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings".
2. The specific 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 may be summarised as follows:
1. the length of the delay;
2. the reason for the delay;
3. the extent of any prejudice suffered by the respondent; and
4. the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case,
1. The discretion to extend time can only be exercised in favour of an applicant or 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]. It follows from this that the onus here is on the appellant to provide sufficient material to support a finding that an injustice would be likely to be suffered if an extension were not granted.
We shall consider each matter in turn.
[3]
Length of Delay
In Di Salvo (a residential tenancies matter where the time frame for filing an appeal was only 14 days), the length of the delay was 26 or 28 days, but the application to extend time was refused. In Jackson, also a residential tenancies matter, the delay was "approximately five weeks", and the application to extend time was refused.
Here the length of delay is approximately 8 months. That delay is very lengthy, if not inordinate.
This factor strongly militates against extending the time in which to appeal.
[4]
Reason for the Delay
As to the reason or explanation for the delay, the grounds relied upon by the appellants neither individually, in combination or cumulatively provide a satisfactory explanation for why the appellants did not lodge their notice of appeal on time. We accept the respondent's submission that the circumstance that the appellants were able to commence new proceedings in the Tribunal during the eight month delay indicates that they could, had they so decided, also have lodged the appeal. This factor militates against extending the time in which to appeal.
[5]
Prejudice Suffered by the Respondent
As to the prejudice suffered by the respondent, the respondent submits that it has expended significant resources preparing for and defending what it describes as frivolous and unsupportable lodgements by the appellant. It submits that granting an extension of time would place additional strain on its resources to prepare a response to an appeal which it says is destined to fail as it has no merit.
In addition, the respondent submits that its costs amount to approximately $1,500.00, being the time spent by the respondent in preparing its response to the appeal.
[6]
Appellants' Prospects of Success
Finally, we turn to the appellant's prospects of success on the appeal. The appellant has a right to appeal on a question of law and with leave on any other ground: NCAT Act, s 80(2)(b).
We explained to Mr Robb that, consistently with the guidance in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, as the appellants are not legally represented, we have looked at the grounds of appeal generally, and assessed whether a question of law has in fact been raised.
We have undertaken that exercise, but we cannot identify any error of law in the Notice of Appeal. Accordingly, the appellants require the leave of the Appeal Panel to bring their appeal, were an extension of time otherwise granted. The Appeal Panel may only grant leave under s 80(2)(b) of the NCAT Act, in the absence of a question of law, if it is satisfied the appellant may have suffered a substantial miscarriage of justice because of one of the matters set out in cl 12(1) of Sch 4 to the NCAT Act.
As to the grant of leave, the principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. These are set out in Collins v Urban [2014] NSWCATAP 17 at [65]-[79]. In summary, the Appeal Panel concluded at 84 that ordinarily it is appropriate to grant leave to appeal only in matters that involve:
1. Issues of principle;
2. Questions of public importance or matters of administration or policy which might have general application; or
3. 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;
4. A factual error that was unreasonably arrived at and clearly mistaken; or
5. 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.
The appellants say that the Decision was not fair and equitable, within cl 12(1)(a) of Sch 4 to the NCAT Act, because there were false and misleading statements provided by the respondent regarding the warranty. The appellants also say that the Decision was against the weight of the evidence, within cl 12(1)(b) of Sch 4 to the NCAT Act, and that the Tribunal should have given more weight to the false and misleading evidence provided by the respondent.
The materials provided by the appellants do not establish what, if any false and misleading statements were made by the respondent. In answer to the question in the Notice of Appeal "What evidence should the Tribunal have given more weight to? Why?" the appellants have responded, confusingly in our view:
Flooring Xtra providing false and misleading evidence.
Only once warranty was questioned by myself that Floor Xtra changed position.
In the circumstances, we are not persuaded that there is any substance to the submission that there is evidence to which the Tribunal should have given more weight.
The appellants also submit that significant new evidence is now available that was not reasonably available at the time of the hearing, within cl 12(1)(c) of Sch 4 to the NCAT Act. In their Notice of Appeal they refer to "emails - date after GEN 20/34028", and "quote - warrantable repairs". As to the emails, the documents identified by Mr Robb are submissions of the respondent, they are not evidence, new or otherwise. As to the "quote", this appears to be the respondent's own quotation 4210 dated 3 September 2019. At the hearing, Mr Robb said the new evidence was that nothing in the installation was covered by the warranty. A letter from the respondent to the Tribunal, dated 4 March 2020, claims that Mr Robb refused to pay for floor preparation costs, and it is implied that this, and a problem with the sub-structure, may have voided the warranty.
This is not "significant new evidence" not available at the time of the hearing and, even if it were, we do not consider that the appellants may have suffered a substantial miscarriage of justice as a result.
In the circumstances, we are not persuaded that there is any substance that there is significant new evidence available.
For its part, the respondent submits that no further consideration should be given to the appellants' appeal because Mr Robb:
1. Did not lodge an appeal within the time in which an Appeal is to be lodged.
2. Has let a period of 9 months elapse between the date of the determination and lodgement of the appeal on the pretence that COID If it was a matter of hours, days or weeks there may have been justification but there is no justification for this length of time.
3. Has no valid reason for not complying with the time allowed for the lodgement of an appeal.
4. Has no new evidence to justify a new hearing . . .
5. Has been afforded ample opportunity to present a valid case - in two hearings (informal and fomal)- but has been unable to present a valid case simply because his case is without merit.
6. Mr Robb has been granted leniency and every opportunity to present his case twice. He has been granted the benefit of the doubt to even have his second hearing held. Nothing has changed that the previous hearings have not considered and Mr Robb has no new evidence.
7. Mr Robb is now simply abusing the goodwill of the resources of the NCAT and Appeal
We are not satisfied that the Tribunal made a factual error that was unreasonably arrived at or clearly mistaken, or that the Tribunal went about the fact finding process in an unorthodox manner or in such a way that produced an unfair result. Indeed, Mr Robb accepted at the hearing that the Tribunal had not made an error, but wished to rely upon new evidence which he said supported a different result. For these reasons, we are not satisfied that the appellants may have suffered a substantial miscarriage of justice within the meaning of cl 12 of Sch 4 to the NCAT Act. But even if we had, in the exercise of our discretion, we would not have granted leave to appeal.
We should indicate that we have reviewed the Decision itself. It is very detailed, considered and logical, and the reasoning of the Tribunal persuasive.
[7]
Conclusion
It follows that the application for an extension of time in which to lodge the notice of appeal is refused. Therefore, the appeal is out of time and should be dismissed.
[8]
Other
In its submissions, the respondent asked that Order 2 of the Tribunal of 30 March 2021 be set aside. That order required the respondent to undertake repairs of the stairs at the appellant's premises on or before 30 July 2020. We discussed this with Mr Robb at the hearing who said that he did not oppose the Appeal Panel making that order.
[9]
Orders
The orders of the Appeal Panel are:
1. The application for an extension of time in which to lodge the notice of appeal is refused.
2. The appeal is otherwise dismissed.
3. By consent, order (2) of the Tribunal of 30 March 2020 in proceedings GEN 20/01494 is set aside.
[10]
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
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Decision last updated: 16 March 2021