Ross v The Owners - Strata Plan No 61667

Background

1. The application relates to a decision made by the Consumer and Commercial Division of this Tribunal on 20 October 2022 (Decision), in disputed proceedings. The Tribunal was asked to make orders resulting from the alleged conduct of the applicants, amongst others, in connection with the operation of a strata scheme maintained by the respondent. The relationship between the parties, the dispute that arose between them, and the outcome was explained in the reasons for the decision at first instance (Reasons): "7 The applicant is the Owners Corporation of Strata Plan 61667 (the Residential Strata). The First Respondent, Ceramix Exclusive Pty Ltd (Ceramix) trading as Facilities Engineering Consulting (FEC), held itself out as the "building manager" appointed to provide "Services" pursuant to a "Amended Building Management Agreement" with the Building Management Committee (BMC), described below. The Third Respondent, Mr Ross, is employed by FEC and the Fourth respondent, Ms Chami, is Mr Ross's partner, the mother of his children and the former chair of the Commercial Strata. For reasons which are set out below I have found that Mr Ross is at least a shadow director of FEC and is relevantly its guiding mind in matters relating in any way to the building and its various strata schemes. 8 The Second Respondent (B8P) provides services, including security services to strata schemes. It was previously retained by the Commercial Strata but its roles as Commercial Building Manager and for the provision of security services to the Commercial building were terminated in December 2021. Mr Osvaldo Cejas is its director and shareholder. … 2 Harbour Towers is made up of three strata schemes as is detailed below, one of which is the applicant. These proceedings arise out of a series of events from about December 2021, initially concerning the repair of the hot water service to the Lot owners of the applicant. A dispute as to who had the right and power to repair the hot water service morphed into a wider dispute that engulfed the applicant and involved the other two strata schemes that make up Harbour Towers, as well as various contractors and Lot owners. 3 Interim restraining orders, substantially in the form of the final relief now sought by the applicant, were made by the Tribunal on 25 January 2022 and extended on 11 February 2022. The applicant now seeks orders on a final and permanent basis. The respondents resist those orders. … 171 The orders of the Tribunal, therefore, are: (1) Pursuant to Section 232(1) of the Strata Schemes Management Act 2015 (NSW), the first to fourth respondents, and each of their servants and/or agents, are not to occupy any part of the common property of strata plan 61667, including but not limited to the foyer/lobby, residential building manager's office and/or concierge desk located in the lobby of that strata plan. (2) Pursuant to Section 232(1) of the Strata Schemes Management Act 2015 (NSW), the first to fourth respondents, and each of their servants and/or agents, are not to enter upon strata plan 61667, including but not limited to the common property therein, unless expressly authorised in advance in writing by the applicant. (3) Pursuant to Section 232(1) of the Strata Schemes Management Act 2015 (NSW), the first to fourth respondents, and each of their servants and/or agents, are not to obstruct, hinder, or interfere with in any way any owner, occupier, invitee of an owner or occupier, contractor, servant and/or agent of the applicant in accessing and/or conducting any work in strata plan 61667 and/or the common property therein. (4) Pursuant to Section 232(1) of the Strata Schemes Management Act 2015 (NSW), the first to fourth respondents, and each of their servants and/or agents, are not to act or purport to act on behalf of the applicant or exercise or purport to exercise any function on behalf of the owners corporation, including but not limited to engaging, terminating or providing instruction of any kind to the building manager or any other contractor engaged by the owners corporation, unless expressly authorised in advance in writing by the applicant. (5) The first, third and fourth respondents pay the costs of the applicant of and incidental to these proceedings, as assessed or agreed, immediately on such assessment or agreement."
2. Part of the factual matrix brought into issue by the parties was an allegation that Mr Ross had assaulted a Mr Ang within the building managed by the respondent. The Tribunal heard evidence from Mr Ross and Mr Ang about that issue and referred to independently verifiable documentary and audio evidence. It found (at [106]) that Mr Ross had assaulted Mr Ang, leading to Mr Ang's hospitalisation: "106 Having carefully considered both accounts, listened to the audio and considered the objective medical evidence from RPA, I prefer Mr Ang's account. I deal elsewhere in these reasons with Mr Ross's credit generally, and I take those factors into account. More directly, however, I find that Mr Ross's account is inconsistent with the audio and the medical evidence. I find that Mr Ross spoke to Mr Ang in an elevated tone immediately before the first thud, in a way that indicated he was very angry. Further I find that his later statement about not wanting to fight Mr Ang, who was old, was delivered with a degree of menace that is far more consistent with having just assaulted Mr Ang than having just observed his collapse. If Mr Ross was simply talking about "fighting" in a non-physical sense, it would have made no sense for him to have made a gratuitous comment about Mr Ang's age. Finally, as indicated above, Mr Ang has never fainted before or since."
3. The Tribunal's reference to other findings about Mr Ross's credit appears to relate primarily to Reasons [61] and [62]: "61 That leaves Mr Ross. Mr Ross was an unimpressive witness who was combative, condescending, calculating and evasive. He gave often implausible evidence and caused a break in proceedings on the final afternoon when he claimed to be too ill to continue in giving his evidence, refusing to answer a yes/no question. The Tribunal offered him an adjournment of a few days on the basis that he then obtain a medical certificate corroborating his claim of illness, or alternatively, his affidavit would be excluded. He did not take up the offer of an adjournment and was able to continue his evidence without any apparent symptoms thereafter. 62 Much of Mr Ross's evidence was implausible. For example, I did not accept that he struggled to remember the ages of his children or that the name of his partner's sister. I did not accept that he did not regard the business of FEC as his own. Where his evidence conflicts with that of any other witness in these proceedings I do not accept his account. Where his evidence is corroborated by contemporaneous documents, I rely on those documents to the extent that they are probative and otherwise reliable. Where there are no corroborative documents on matters of dispute, I nevertheless only accept Mr Ross's account when it otherwise accords with the probabilities or is against his interest."
4. Reference to Mr Ross' credit is also made at Reasons [135], which is set out below. It is also appropriate to quote other parts of the Reasons (at [110], [111]), to give some further context to the nature of the other issues the Tribunal was to adjudicate upon: "110 Extraordinary events were to follow. At approximately 2:00 a.m. on Wednesday, 12 January 2022 the Goldcrest security employee on duty at the concierge desk, Mr Norman Grey, received an anonymous phone call stating there was flooding in the car park. He left his desk to investigate and discovered there was no such flood. When he returned, he found that Mr Ross, Ms Chami, Ms Edlebi, Mr Cejas and a group of security guards, subsequently identified as employees of the second respondent, had entered the lobby and were occupying the concierge desk. Mr Ross broke the recently changed locks with a hammer to gain entry to the Residential Strata building manager's office. 111 Mr Grey tried to regain possession of the concierge desk but was unsuccessful. Mr Ross gave Mr Grey a copy of a letter addressed to Goldcrest Security bearing the date and time of 11:00 p.m. on 11 January 2022. The letter purported to be on behalf of the BMC and was signed by the "BMC representative", Ms Edlebi her capacity as secretary of SP 71700 (the Commercial Strata). The letter purports to give notice to Goldcrest of its termination from 10:00 p.m. on Tuesday, 11 January 2022, requiring it to "hand over all keys, access passes, et cetera to the BMC manager, Mr Ray Ross "due to a breach to provide access to essential services to BMC and the Commercial Building manager, the B8P Group Pty Limited." The letter goes on to accuse Goldcrest of placing the property "in serious risk by denying access to the appointed BMC manager and Commercial Manager to resolve to essential services reported problems: hot water (Residential and Services Apartments (sic)) and Air Conditioning System (Commercial lot)". The letter continues "Under not circumstances (sic), Gold Crest Security, should denied access (sic) to BMC Manager to solve essential services reported faults, that will affect the normal operation of any essential services".
5. During the course of the proceedings, the Tribunal had made interlocutory orders in similar terms to those in the Decision. They had not been complied with (Reasons at [129]-[137]): "129 On 25 January 2022, the Tribunal made ex parte interim orders, inter alia, preventing the respondents from entering the Residential Strata. Those orders were broadly in the same form as the final relief sought in these proceedings set out above. 130 Mr Ross was served with the orders that evening. Having been served, Mr Ross defied those orders. He does not deny that he did so. 131 Ms Chami and Rami, an employee of B8P, attempted to gain access to the Residential Strata on 25 January 2022 after the orders had been served. On 31 January 2022 Mr Ross entered the Residential Strata lobby and was involved in a physical altercation with Mr Khamis from Goldcrest and Brendan McCreor from BMAust, the building manager. On 2 February 2022, Mr Cejas and a number of B8P employees entered the lobby and again took over the concierge desk, physically ejecting Mr Ibrahim. Locks were changed again. Mr Cejas was engaged in a physical altercation with Mr Ben Mees from BMAust. 132 On 7 May 2022, Mr Ross and Rami from B8P made a number of further attempts to enter the Residential Strata. 133 Mr Ross has been charged with stalking and intimidation of Mr Khamis. As at May 2022 he was on bail, one of the conditions being not to enter Harbour Garden Towers or go within 200 metres of it. The current status of that prosecution is unclear and it is not clear whether he is still subject to that bail condition. 134 In cross examination, Mr Ross explained his breach of the orders as resulting from legal advice he obtained from an unidentified solicitor in Blacktown who, Mr Ross deposed, told him that the order was not effective to exclude him from the common property of the Residential Strata in the absence of an order for possession. When asked to provide the advice or name the solicitor, he was unable to do so. 135 As a legal proposition, the advice that Mr Ross says he received is obviously and egregiously wrong. I do not believe that any practising solicitor, properly instructed with the terms of the Interim Order, would have given such advice. I do not accept that Mr Ross ever received any such advice. 136 Mr Ross conceded that he attempted to enter the Residential Strata foyer on more than one occasion after being served with the Interim Orders and succeeded in doing so at least once. 137 Mr Ross's multiple breaches of the Interim Orders appears to have been in wilful disregard of an order of the Tribunal. It is a powerful matter to be taken into account in the exercise of my discretion as to any final relief."
6. The Decision was released to the parties on 20 October 2022, although the applicants indicate in their Notice of Appeal that they only received it on 1 November 2022. They had 28 days from 2 November 2022 to lodge their appeal. They did not do so until 24 February 2023. In the Notice of Appeal, they seek to explain that delay: "The applicant (sic) was self-represented and mistakenly believed that the appeal should have been made to the NSW Supreme Court and accordingly submitted a Notice of Intention to Appeal to that Court. He mistakenly believed the appeal period ended on 20 Jan 2023. In November 2022, the applicant was given undertakings to act by a solicitor who later advised he was not available. Subsequently no legal representation was found by the applicant in the Christmas period. During the appeal period, the applicant faced criminal charges connected to matters in dispute in the Tribunal hearing. He considered the appeal of the Tribunal decision should only occur after the criminal proceedings had concluded. The verdicts and findings of fact in the criminal proceedings are plainly relevant to the merits of the applicant's Tribunal matter."
7. The applicants lodged their Notice of Appeal jointly. They gave both a physical and electronic address for service when completing that form. Notably, the Notice of Appeal was defective in that it only nominated them, and the respondent Owners Corporation, as parties to the appeal. It is also relevant that no apparent question of law affecting the validity of the decision for the purpose of the appeal is identified. Rather, the applicants sought to challenge the Tribunal's factual findings and the adequacy of its reasons in respect of an issue which can, prima facie, properly be considered peripheral to the Decision insofar as it relates to the injunctive orders against the applicants in their personal capacities. There is also a complaint that the Tribunal erred by failing to allow the respondents at first instance to rely on affidavits of Ms Chami and another witness due to their being unavailable for cross examination.
8. The appeal was then listed for directions on 10 March 2023, and a notice of that hearing, and how to join it, was sent to the applicants at their email address for service.
9. As stated earlier, the applicants did not appear on 10 March 2023. Nor did they contact the Tribunal to advise of any difficulty in doing so or to ask for an adjournment. I conducted that hearing. After satisfying myself the applicants had proper notice of the hearing and waiting a reasonable time for them to participate, I dismissed the appeal based on their non-appearance. The orders dismissing the appeal made it plain that the applicants could apply to have it reinstated. I also made directions in respect of an application made orally by the respondent for its costs of the appeal.
10. The applicants had seven days from 11 March 2023 to lodge any reinstatement application: Civil and Administrative Tribunal Rules 2014 (NSW) (Rules), rr 36, 6(2). They failed to do so within time, but Ms Chami lodged an application on 3 April 2023. The application form itself gave the applicant her first opportunity to identify a reasonable explanation for the prior non-attendance, and to explain any delay in lodging the application. Ms Chami sought to do so in the following terms: "I became very ill with Covid-19 and had great difficulty speaking. I was unaware that the joint applicant Raymond had not received any notification of the listing. My illness was drawn out and I have not been able to make this application until now."
11. A medical certificate was annexed to the application. It was completed by a Dr Abeyewardene on 28 March 2023, 18 days after the appeal was dismissed. The certificate opined, without further explanation, that Ms Chami "[was] receiving medical treatment and for the period Friday 10 March 2023 to Friday 10 March 2023 inclusive she will be unfit to continue her usual occupation."
12. Once the application was received, it was listed for hearing before me on 19 April 2023. The applicants were directed to lodge and serve any further evidence relevant to the application and their submissions in support of it, by 12 April 2023. The respondent was directed to lodge and serve its material in response by 17 April 2023. The applicants failed to lodge anything further in support of the application. The respondent complied with the direction by lodging written submissions prepared by Mr Elliot of counsel, who appeared for it at the subsequent hearing on 19 April 2023. As Mr Elliot spoke to those submissions at the hearing, I will refer to them, as relevant, later.

The appellant's submissions

1. At the hearing on 19 April 2023, Mr Ross appeared. He confirmed, without objection by the respondent, that it had always been the joint intent of him and Ms Chami that the reinstatement application be lodged by them jointly, and that failure to do so was merely an oversight. He also confirmed that he was authorised to represent Ms Chami in respect of the application, a fact Ms Chami confirmed when she later dialled in to the hearing.
2. The applicants maintained that there was merit in the appeal. In respect of their delay in lodging it, they relied upon a draft Notice of Intention to Appeal under Form 103 of the Uniform Civil Procedure Rules 2005 (NSW) to the Supreme Court. The form was signed by an unidentified person and that signature bore the date 16 November 2022. There is no indication on the face of the document that it was ever lodged with the Court.
3. I asked Mr Ross to explain the applicants' failure to lodge any submissions in support of their application. He had no proper explanation. When I gave Mr Ross the opportunity to explain the delay in lodging the reinstatement application, he sought to do so on the basis of Ms Chami's illness, as evidenced by the certificate of Dr Abeyewardene. When I pointed out that the certificate at its highest did not explain any delay beyond 10 March 2023, no satisfactory response was offered. When I asked why Mr Ross could not have appeared on 10 March 2023 if Ms Chami was too ill to do so, Mr Ross alleged, for the first time and by bare assertion, that he did not know of the hearing because the email address the notice was sent to was controlled by Ms Chami and she had not informed him of it. I gave Mr Ross the opportunity to respond to a proposition that, if it had always been the intent that the appeal and reinstatement be lodged on his and Ms Chami's joint behalf, and they had used a single address for service, then notice to that address was notice to them both. Again, Mr Ross denied knowledge of the notice but made no assertion that there had been any breakdown of communication or in the relationship between him and Ms Chami, which would in any event have been inconsistent with their agreed position that he would represent her at the hearing.

The respondent's submissions

1. The respondent accepts that the medical note records that Ms Chami was ill on 10 March 2023. However, it submits that does not, of itself, excuse her from appearing at the directions hearing which occurred via AVL, or sending a communication to the Tribunal that she was unable to appear.
2. The medical certificate prepared 18 days later is of little weight. The medical certificate does not address the necessary criteria as set out in MPP Property Pty Ltd v Soliman Hospital Pty Ltd [2021] NSWCATAP 90 at [41] and Harmony Stone Gallery Pty Ltd v Ajuria [2017] NSWCATAP 80 at [38].
3. It does not record when Ms Chami was examined. Given that it excused Ms Chami from work on 10 March 2023, it should be inferred that she attended Dr Abeyewardene that day. If she was well enough to attend a general practitioner (in person, or via AVL or telephone), she would be well enough to appear at the directions hearing or at the very least advise someone that she could not attend. The certificate does not describe the symptoms Ms Chami was suffering from and does not assist the Tribunal in determining whether Ms Chami was capable of attending.
4. Further, in circumstances where Ms Chami did not appear in person at the final hearing at first instance, and had her partner, Mr Ross, appear in her place, no proper reason is proffered as to why Mr Ross did not appear at the directions hearing on 10 March 2023.
5. The respondent, relying on a combination of the substantial delay in lodging the appeal and its view that the grounds are weak, submits the appeal is without apparent merit in any event.
6. If successful in resisting it, the respondent seeks its costs of the reinstatement application.

The application to reinstate the appeal is out of time

1. Rule 36 of the Rules provides that, unless an extension is granted under s 41 of the NCAT Act, an application to reinstate proceedings that were dismissed under s 55(1)(c) of the NCAT Act must be made within 7 days after the proceedings were dismissed, not including the date the order is provided to the party: Rules, r 6(2).
2. In the context of a requirement to act with that level of expedition, and where the order dismissing the appeal put the appellants on notice that they could bring a reinstatement application, the application has been lodged significantly out of time.

An extension of time to lodge the application?

1. In Kelly v Szatow [2020] NSWSC 407, the Court summarised the principles that apply to an extension of time to appeal, which are also apposite here. Relevant considerations include the length of the delay and any associated reasons for such, the strength of the plaintiff's case, and consideration of whether the defendants would be prejudiced by a granting of the application: see Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55].
2. The applicants bear the onus of demonstrating that strict compliance with the timeframe would work an injustice: see Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 ("Gallo"). In Gallo, McHugh J stated at [2]: "[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 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 92; Jess v Scott (1986) 12 FCR 187 at 194-5. 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 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 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 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 12; [1964] 3 All ER 933 at 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.'"
3. On that basis, I should consider the reason for and length of the delay, the nature of the proceedings, any prejudice to the respondent if an extension of time is granted and the appeal is reinstated, or to the applicants if it is not. I also need to consider the prospects of the applicants succeeding in the application and the appeal. Where no question of law is identified, I should consider the applicant's apparent prospects of obtaining leave to appeal.
4. There is simply no explanation proffered for the delay in lodging the application, other than the bare assertion made in the application form itself that Ms Chami's illness that prevented her appearance on 10 March 2023 was "… drawn out and I have not been able to make this application until now." Not only is that assertion not supported by probative evidence, but it also stands in direct contradiction of the certificate of Dr Abeyewardene. Having only completed that certificate on 28 March 2023, Dr Abeyewardene was well placed to make an assessment, even if only from information received from Ms Chami, as to how long her illness was drawn out. At least to the extent it would have prevented her continuing her "usual occupation", whatever that may be, Dr Abeyewardene's opinion was that the effect of the unspecified illness had ceased by 11 March 2023. I agree with the respondent that leaves no explanation for ongoing delay by Ms Chami. It gives no explanation whatsoever for delay on the part of Mr Ross. I feel bound to record that, having heard Mr Ross in submissions and answering questions from me testing those submissions, I found his attempts to distance himself from Ms Chami's knowledge of and involvement in the proceedings disingenuous. A similar issue appears to have arisen at first instance. The Tribunal recorded at Reasons, [65]: "There is no doubt that he and Ms Chami are, and were at all relevant times, in a personal relationship. They are parents to school age children. Mr Ross, in his opening, referred to Ms Chami "allegedly" being his partner. He was of course aware that she was."
5. That finding is not challenged in the appeal.
6. I consider the applicants' delay in lodging their application to be significant and unsatisfactorily explained.
7. I will return to the other considerations relevant to an extension of time after determining the apparent merit of the application to reinstate the appeal which, in itself, involves consideration of the apparent merit of the substantive appeal.

Consideration of the application to reinstate the appeal proceedings

The relevant principles

1. Section 55(2) of the NCAT act provides as follows: 55 Dismissal of proceedings … (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers there is a reasonable explanation for that failure.
2. That is, if satisfied that there is a reasonable explanation for the failure to attend, the Tribunal then has a discretion to exercise to reinstate the appeal.

A reasonable explanation for failing to appear on 10 March 2023?

1. I then need to consider whether the applicants had a reasonable explanation for their failure to appear on 10 March 2023. As stated earlier, the only evidence I have in that regard is the certificate of Dr Abeyewardene and the assertions by Ms Chami and Mr Ross.
2. As submitted by the respondent, the certificate of Dr Abeyewardene is entirely insufficient to demonstrate that Ms Chami could not appear, by telephone or audio-visual link, at least to ask for an adjournment. Further, it does not explain why she could not have texted Mr Ross to ask him to do so if they had a prior arrangement that she would appear. In fairness, Dr Abeyewardene's certificate does not purport to do so. It simply says that Ms Chami could not conduct her usual occupation on 10 March 2023. More broadly speaking however, the certificate falls within the class of such documents described by the Supreme Court of NSW in Magjarraj v Asteron Life Limited [2009] NSWSC 1433 at [22]: "All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition", culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything."
3. As I have already indicated, there is no other probative evidence that I am left with to support either applicant's explanation for their failure to appear on 10 March 2023. In that regard, their decision to decline the opportunity to comply with the directions made on 4 April 2023 is telling. As I have already stated and acknowledging that the Tribunal is not bound by the rules of evidence, I do not find Mr Ross' explanation for his failure to appear, given from the bar table, persuasive. I am satisfied, in the absence of an explanation to the contrary that is clearly particularised and capable of being accepted at least on a prima facie basis, that notice to the email address the applicants used on their Notice of Appeal was notice to them both.
4. The applicants have failed to demonstrate a reasonable explanation for their failure to appear on 10 March 2023. On that basis, the appeal could not be reinstated and there is no utility in my extending time for them to lodge the application.

If I am wrong, would I exercise my discretion to reinstate the appeal (leaving to one side the extension of time required)?

1. The relevant principles were set out, albeit not exhaustively, in Wallace v Price [2017] NSWCATAP 151.
2. Notwithstanding there is an adequate explanation, the question is whether an order to reinstate the proceedings should be made as a matter of discretion.
3. Factors relevant in the exercise of the discretion include: 1. The nature of the appeal and the issues raised; 2. The strength of the appeal and its likelihood of success; and 3. Any injustice to the opposing party.
4. The general principles applicable to the grant of leave are set out in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 ("Das") and Lee v New South Wales Crime Commission [2012] NSWCA 262; (2012) 224 A Crim R 94 ("Lee").
5. In Das, at [32]-[33], [35], Basten JA stated: "[32] The principles governing cases such as these have recently been restated in Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56. As Campbell JA noted (with the agreement of Young JA) at [22]: 'It is of some importance to reiterate the principles that were stated in Carolan v AMF Bowling Pty Limited [1995] NSWCA 69, where Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole JA relied on a principle that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute.' [33] In Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Campbell JA, with the agreement of Young and Meagher JJA, expanded on his summary of Carolan, noting that Kirby P had recognised 'that ordinarily it was appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond [what is] merely arguable': at [46]. … [35] In Coulter v The Queen [1988] HCA 3; 164 CLR 350, dealing with a challenge to a refusal of the South Australian Full Court to grant leave to appeal in a criminal matter, the majority noted that a leave requirement was a preliminary procedure 'recognised by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention': at 356 (Mason CJ, Wilson and Brennan JJ). That statement is clearly applicable to civil, as well as criminal, appellate jurisdiction."
6. Similarly, in Lee, Bathurst CJ at [12] outlined the principles relevant to the granting of leave as follows: "[12] The principles upon which leave to appeal is granted are well established. Ordinarily it is only appropriate to grant leave concerning matters that involve issues of principle, questions of general public importance or where it is reasonably clear there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge was in error: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Zelden v Sewell [2011] NSWCA 56 at [22]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; GKD v Director of Department of Family & Community Service [2012] NSWCA 219 at [10]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[34]."
7. As I have already noted, the appeal does not, in my view identify a question of law on which the appeal could be allowed. There is also the delay in lodging it to contend with, and the applicants' assertions the delay was caused by: their unsatisfied reliance on an unnamed lawyer to lodge an appeal for them; the assertion that they first, mistakenly, attempted an appeal to the Supreme Court; and that they thought the related criminal proceedings should be concluded first.
8. In that regard, and in the absence of direct evidence, what the applicants have put before me allows an inference contradictory to the first of those three assertions. The draft Notice of Intention to Appeal, dated 18 November 2022, allows the inference that the applicants knew how to commence an application for leave to appeal to the Court, albeit mistakenly. They had completed the necessary form to do so well prior to the Christmas break. There is no clear explanation proffered as to why they did not simply lodge it themselves, if in fact it was lodged at all. If the assertions in the Notice of Appeal are to be read as indicating that the applicants delayed in lodging in the Court until 20 January 2023 and that is the first they learnt of their mistake, there is no explanation proffered as to why they waited until 24 February 2023 to lodge their Notice of Appeal in the Tribunal.
9. Nor do I think the concurrent criminal proceedings provide a proper explanation for failing to lodge the appeal, as opposed to lodging it and requesting that the appeal not be determined until the criminal proceedings were finalised. In any event, the only relevant evidence about these assertions before me is a Court Order Notice dated 12 October 2022, before the decision at first instance was given, showing that Mr Ross was successful in having a conviction for "Make false statement on oath, not perjury" quashed. To the extent the Tribunal relied on Mr Ross having been convicted of making a false statement on oath, at Reasons [72], it was the fact of the conviction, which Mr Ross had failed to disclose, and not Mr Ross' guilt which was relevant to that issue. The Tribunal was aware Mr Ross said the conviction had been quashed, noting at Reasons [69]: "…Mr Ross in the course of cross examining Ms Tamplin suggested that conviction had been overturned. He did not establish this as a fact."
10. The fact that the order quashing the conviction postdates the last day of the hearing is unexplained.
11. Otherwise, there is simply an assertion that Mr Ross was also successful in defending a charge of "Stalk & Intimidate", presumably in relation to the issue dealt with at Reasons, [133] cited above. Different standards of proof applied in those proceedings, and their outcome had little bearing on the Tribunal's decision given the reference at Reasons [133] is the only mention of that charge in the Decision.
12. In respect of leave to appeal if time is extended, the grounds of appeal raise nothing approaching an issue of principle of public importance. In terms of an injustice rising above the merely arguable, other than complaints about how Mr Ross perceives the Tribunal's findings of fact and credit made unfavourably to him, the injustice caused by the decision to the applicants, as opposed to Ceramix Exclusive Pty Ltd, is unexplained and unclear, at least in respect of the orders made in the nature of injunctive relief. There is, of course, the potential for injustice in respect of the order for costs, but it is not challenged other than to the extent that it follows from the Tribunal's other findings.
13. I do not accept the applicants' assertions that there would be no prejudice if the appeal were to be reinstated. The respondent has had the vested right to the benefit of the decision at first instance since November 2022. Its members will undoubtedly incur further expense, and endure significant uncertainty, if the appeal is reinstated.
14. In my view, weighing the long delay in lodging the appeal and the unsatisfactory explanation for it with the lack of apparent relative merit of the appeal itself and the prejudice to the respondent, I would not have exercised my discretion to reinstate the appeal had the occasion to do so arisen.

Costs

1. Finally, I note that the respondent failed to comply with my directions to lodge and serve submissions in support of its application for costs of the appeal, in accordance with directions made 10 March 2023, by 18 March 2023. Its failure to do so is unexplained and certainly not excused due to lodgement of the reinstatement application, which only occurred on 3 April 2023. I am satisfied I can determine the application for costs without hearing further from the parties and will make an order dispensing with a hearing of that application pursuant to s 50(2) of the NCAT Act. In the absence of submissions identifying special circumstances warranting an award of costs under s 60 of the NCAT Act, that application must be dismissed.
2. I will make directions for submissions as to costs of the application for reinstatement.

Orders

1. I will order: 1. Leave is granted to the respondent to be legally represented (which was announced on 19 April 2023). 2. The application to extend time to lodge the application to reinstate appeal proceedings 2023/00063450 is refused. 3. A hearing of the respondent's application for its costs of the appeal is dispensed with. 4. The respondent's application for its costs of the appeal is dismissed. 5. In respect of the respondent's application for its costs of the application for reinstatement: 1. The respondent is to lodge in the Appeal Registry and give to the Applicants its evidence and submissions in support of the application for costs, within 14 days. 2. Any submissions and evidence in response to the costs application are to be lodged with the Appeal Registry and given to the Respondent within 14 days thereafter. 3. Submissions on the application for costs by each party are not to exceed five pages in length. 4. The Appeal Panel may dispense with a hearing and determine any application for costs on the basis of the written submissions and evidence provided. If the parties oppose this course, they should make submissions on this issue when complying with the directions as to their submissions on the substantive costs application. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the application.

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: 31 May 2023