Ross v The Owners - Strata Plan No 61667 - [2023] NSWCATAP 147 - NSWCATAP 2023 case summary

NCAT Appeal Panel|2023-04-19

Date of Decision: 20 October 2022 Before: K Andronos SC, Senior Member File Number(s): SC 22/03010

Summary

This is an application to reinstate appeal proceedings pursuant to s 55(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The proceedings were dismissed due to the applicants' failure to appear at the first mention of the appeal on 10 March 2023, i.e., under s 55(1)(c) of the NCAT Act. The appeal itself had been lodged approximately three months out of time. The reinstatement application was also lodged out of time and is opposed.
For the reasons set out in this decision, I will refuse leave to extend time to lodge the application.

The appellant's submissions

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.
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.
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

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.
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].
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.
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.
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.
If successful in resisting it, the respondent seeks its costs of the reinstatement application.

The application to reinstate the appeal is out of time

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).
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?

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].
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.'"
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.
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."
That finding is not challenged in the appeal.
I consider the applicants' delay in lodging their application to be significant and unsatisfactorily explained.
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

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.
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?

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.
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."
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.
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)?

The relevant principles were set out, albeit not exhaustively, in Wallace v Price [2017] NSWCATAP 151.
Notwithstanding there is an adequate explanation, the question is whether an order to reinstate the proceedings should be made as a matter of discretion.
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.
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").
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."
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]."
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.
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.
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."
The fact that the order quashing the conviction postdates the last day of the hearing is unexplained.
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.
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.
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.
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

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.
I will make directions for submissions as to costs of the application for reinstatement.

Orders

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

Ross v The Owners - Strata Plan No 61667

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