This is an application by Mr Tikoft to reinstate an appeal he brought that was dismissed on 3 March 2021 or to have that decision set aside.
Mr Tikoft was the respondent to proceedings brought by his landlord, the respondent to these applications, in respect of goods remaining at residential premises rented by him after a fire at the premises. The proceedings were brought under the Uncollected Goods Act 1995 (NSW) (UG A).
On 16 November 2020 the Tribunal made final orders in those proceedings, including that if Mr Tikoft did not collect a motor vehicle and boat from the premises by a certain time then the landlord could dispose of these goods as rubbish without being liable to Mr Tikoft for any compensation. The Tribunal found that there were no other uncollected goods in existence at the premises to which the UGA applied and that, as a consequence, subject to the orders made in relation to the motor vehicle and boat, the landlord was entitled to demolish the remaining structure and make the site safe.
Before arriving at that decision, the Tribunal refused an application by Mr Tikoft to adjourn the hearing in order to adduce further evidence. In refusing that adjournment, the Tribunal found that there was no realistic prospect of "medium value goods", as defined in the UGA, being still in existence. It found that it was satisfied that the whole of the contents of the interior had been destroyed by one or more means connected with the fire.
Mr Tikoft appealed from this decision. On the Notice of Appeal Mr Gilhome from PossABLE Advocacy was named as his representative.
In the Notice of Appeal Mr Tikoft raised issues about procedural fairness in failing to grant the adjournment, matters that he contended the Tribunal had failed to take into account and also sought leave to appeal on the grounds that the decision was not fair and equitable and was against the weight of the evidence. One of the orders he sought on appeal was that the proceedings be adjourned to be heard at the same time as a cross application he had brought in separate proceedings for retrieval of goods still at the property and for compensation.
In respect of the appeal various directions and orders were made on 7 and 18 December 2020, 28 January 2021 and 10 February 2021. These included an order on 18 December 2020 granting leave for the appellant to be represented by Mr Gilholme.
Section s 45 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) makes provision for participation by parties in proceedings in the Tribunal, including by representation as follows:
45 Representation of parties
(1) A party to proceedings in the Tribunal -
(a) has the carriage of the party's own case and is not entitled to be represented by any person, and
(b) may be represented by another person only if the Tribunal grants leave -
(i) for that person to represent the party, or
(ii) in the case of representation by an Australian legal practitioner - for a particular or any Australian legal practitioner to represent the party.
The orders made on 18 December 2020 also included an order listing the appeal for hearing on 3 March 2021 at 2:15 PM by telephone.
The results sheet for the hearing on 3 March 2021 (signed by each of the members of the Appeal Panel) records that Mr Gilholme appeared as representative for the appellant (and Mr Fester, solicitor, appeared for the respondent). It is uncontroversial that the appellant was not present at the hearing by telephone.
The results sheet also records that the orders made were that leave to appeal was refused and the appeal was dismissed and that ex tempore reasons were given. This information stands in contrast to the section of the results sheet, which was not filled out, concerned with proceedings which are withdrawn or dismissed, including, specifically, those that are dismissed pursuant to s 55 (1) (c) of the NCAT Act (see below) because the appellant failed to appear.
Clearly, the appeal was not dismissed for default of appearance.
Furthermore, we fail to see how such a step would have been available to the Appeal Panel in view of the terms of s 45 of the NCAT Act, the leave granted to Mr Gilholme to represent the appellant and the absence of any submission (or supporting material presented) to suggest that Mr Gilhome's presence at the hearing of the appeal was other than what is revealed by the results sheet.
However, by error, an order was issued on 5 March 2021 stating that on 3 March 2021 the following order was made in the appeal:
1 The Appellant has failed to appear in the proceedings are dismissed pursuant to s 55 (1) (c) of the Civil and Administrative Tribunal Act 2013 (NSW)
On the same day, that order was corrected by the Appeal Panel, pursuant to s 63 of the NCAT Act, and the correct orders were issued, namely that leave to appeal was refused and the appeal dismissed and that ex tempore reasons were given. The amended order also included the statements "Orders sent on incorrect file number. Amended to correct orders."
By two documents lodged in the Tribunal on 8 March 2021, Mr Tikoft sought to overcome the orders that were made by the Appeal Panel on 3 March 2021.
The first of the two documents lodged on 8 March 2021 was an application to reinstate the appeal pursuant to s 55 (2) of the NCAT Act.
The second document lodged was an application to set aside the Appeal Panel's decision of 3 March 2021 pursuant to clause 9 of the Civil and Administrative Tribunal Regulation 2013 (NCAT Regulation).
Various directions and orders in respect of the conduct of the current applications were made on 12 and 26 March 2021 and 28 April 2021. On the latter occasion it was ordered that a hearing of the application was dispensed with and the application was to be determined on the papers. Prior to that order, directions had been made on 12 and 26 March 2021 for the provision by the parties of submissions and evidence concerning the applications. Written submissions were received from both parties. From Mr Tikoft this included material about why he had not appeared at the hearing of the appeal and about the merits of his case before the Tribunal at first instance.
[2]
The application to reinstate the appeal
The form for the reinstatement application contains a section of the document calling for an explanation as to why the appellant "did not appear at the hearing". The section was completed as follows:
As part of my disability, I have organisation, memory, confusion issues. I was unaware of the hearing date and time. If I was aware of the need for attendance I would have made every effort to attend. I believe it is important to be involved in the processing to ensure that I have had my voice heard and my opportunity to speak on these matters.
Section 55 of the NCAT Act provides:
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.
It is clear that the references in this section (and in Clause 9 below) to "the Tribunal" include the Tribunal when constituted by an Appeal Panel: see s 16 (4) and s 32 of the NCAT Act.
However, this application to reinstate the appeal pursuant to s 55 (2) must fail at the threshold because the appeal was not dismissed pursuant to s 55 (1) (c) on the basis that the appellant had failed to appear in the proceedings. The condition for the exercise of the reinstatement discretionary power does not exist and we have no power to reinstate the proceedings pursuant to s 55 (2).
[3]
The set aside application
Clause 9 of the NCAT Regulation, relevantly, provides:
9 Additional power to set aside or vary decision determining proceedings
(1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances -
(a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision,
(b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.
It is a condition of the exercise of the discretionary power in clause 9 (1) that the decision in issue was made "in the absence of a party".
This order has a wider operation than s 55 (2). For one thing, it is not confined to dealing with an order for dismissal.
Nevertheless, whilst the expression "in the absence of a party" in clause 9 (1) (b) differs from the expression "failed to appear" in s 55 (2), we see no relevant point of distinction in the application of these expressions to the circumstances of this case (and no submission was made to us by the Mr Tikoft about this).
As we have already said (at paragraph [13] above), the circumstances concerning Mr Gilhome's presence at the hearing on 3 March 2021 meant that a dismissal under s 55 (1) (c) for failure to appear was not available to the Appeal Panel (and they did not proceed on that basis). For the same reason, the Appeal Panel's decision on 3 March 2021 was not made "in the absence of" the appellant as required by clause 9 (1) (b) of the NCAT Regulation for the exercise of the discretionary power to set aside the decision. The decision on 3 March 2021 was not made "in the absence of" the appellant because his representative, appointed with the leave of the Tribunal, appeared for the appellant at the hearing.
Both s 55 (2) and clause 9 (1) (b) are founded upon the fundamental principle that a party should be provided with a reasonable opportunity to present their case: see Taylor v Taylor [1979] HCA 38; 143 CLR 1 per Gibbs J; and s 38 (5) (c) of the NCAT Act. That occurs when a party appears at a hearing of the Tribunal through their representative who has been granted leave to appear.
For these reasons, we make the following orders:
1. The application for reinstatement of the appeal pursuant to s 55 (2) of the Civil and Administrative Tribunal Act 2013 (NSW) is dismissed.
2. The application to set aside the decision of the Appeal Panel made on 3 March 2021 pursuant to clause 9 of the Civil and Administrative Tribunal Regulation 2013 is dismissed.
[4]
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: 20 July 2021
Parties
Applicant/Plaintiff:
Tikoft
Respondent/Defendant:
NSW Land and Housing Corporation
Legislation Cited (3)
Civil and Administrative Tribunal Regulation 2014(NSW)