Thijeel v Liu [2021] NSWCATAP 185 | Case summary

NCAT Appeal Panel|2021-06-24

Summary

For the reasons set out below, we are of the opinion that this appeal is without merit. It was lodged significantly out of time and without regard to the issues the appellant needed to establish to succeed.
The appellant's attention was drawn to the potential deficiencies in the appeal at the initial call over conducted to assist the parties to address the real issues in the appeal. At that call over, the Appeal Panel directed that the issues of whether the appellant should be granted an extension of time to lodge the appeal or leave to appeal should be dealt with on the papers as a preliminary issue, and a hearing be dispensed with. Directions were made for the parties to address these issues first, to avoid them incurring further unnecessary cost and delay in resolving what is, ultimately, a relatively small claim which raises no issue of principle.

The Nature of Appeals

An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
Where, as here, the appeal is from a decision made in the Consumer and Commercial Division (other than in respect of interlocutory decisions), there is a qualification to the possible grant of leave in that the Appeal Panel may only go on to consider a grant of leave if it is first satisfied that the elements of cl 12(1) of Sch 4 of the NCAT Act are made out, in that the appellant may have suffered a substantial miscarriage of justice on the basis, relevantly to the appellant's claim that: 1. the decision of the Tribunal under appeal was not fair and equitable; or … (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
The appellant does not allege error on a question of law. The decision cannot be said to have been unfair or inequitable because the appellant failed to properly to prepare for the hearing. The evidence the appellant wants to rely on now is not new in the relevant sense. It was all available to the appellant before the decision below was made.

An Appeal commenced out of time.

As stated earlier the appeal was not commenced within time. The Appeal Panel has power to extend time for the lodgement of an appeal in an appropriate case. Here the Appellant did not request that time be extended. Nevertheless we will consider whether time should be extended.
In Kelly v Szatow [2020] NSWSC 407, the Court summarised the principles that apply to an extension of time to appeal. 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 Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[5]; Tomko v Palasty (No 2) [2007] NSWCA 369 at [55].
The appellant bears the onus of demonstrating that strict compliance with the timeframe would work an injustice: see Gallo v Dawson (1990) HCA 30; 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.'"
The appellant was directed to lodge submissions about why time should be extended. He says he was surprised that the Tribunal's order came by email and not by post. The appellant provided the Tribunal with his email address as part of his address for service in his application. There is no proper explanation for what is a significant delay.

Consideration

Where an appellant requires leave to appeal under cl12, and an extension of time, they need to demonstrate that they have a fairly arguable case that they will obtain a grant of leave if an extension of time is granted.
For the reasons above, there is no proper basis upon which the appellant could obtain leave to appeal. On that basis, he cannot demonstrate that strict compliance with the timeframe for lodgement of the appeal would work an injustice. The appellant had an opportunity to provide evidence to the tribunal and it would be contrary to the finality principle to allow the appellant to introduce fresh evidence of the type the appellant now seeks to introduce. This principle provides that parties to litigation generally should not be allowed to add new evidence after the tribunal's decision (or the court's judgment) has been delivered, because if the new evidence were allowed cases would not be finalised. The other party may want to introduce new evidence too and finalisation of the litigation would be delayed.
Finally, we note that the appellant named the wrong respondent in his Notice of Appeal, naming Mr Liu, who we are left to infer was a Director of the company against whom the order was made below. Given our decision, there can be no prejudice to the correct respondent by our determining the appeal as framed by the appellant.

Orders

Our Orders are as follows: 1. Leave to extend time to lodge the Notice of Appeal is refused. 2. Appeal dismissed 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: 24 June 2021

Thijeel v Liu

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Cases Cited (7)