- three Australian Post parcel (personal household items delivery from overseas)

I ask the respondent to provide the above items or compensate for the loss of these items. Attached is information verifying the cost of the above items.

1. Under 'Orders Sought' the applicant ticked 'Part A Monetary claim' and stated the amount claimed was $4,231.
2. The respondents filed a response on 16 December 2015 disputing the applicant's claim and a counter claim for rent and storage of $5440 plus the filing fee of $140.00 against the applicant.
3. The parties attended a conference on 27 January 2016 after which the matter was dismissed as there was a consent order in place in RT 968/2015. The applicant was also the applicant in RT 968/2015 and he had sought orders that his belongings be returned. The respondents were also the respondents in RT 968/2015. The consent order provided:
   1. The applicant and John Jiang at a convenient time on either 21 or 22 November 2015 will meet at 102 Gwen Merideth Loop Franklin and the applicant will search through the boxes stored there to attempt to locate his possessions.
   2. The respondent and John Jiang to assist in this search as much as possible.
   3. The applicant to release the bond to the respondent.
   4. In addition the applicant is to pay $1280.00 to the respondent in respect of unpaid rent.
   5. The application is otherwise withdrawn and dismissed.
4. On 1 March 2016, on the applicant's application, the matter was restored to the list and set down for a conference on 9 March 2016. At the conference the matter was set down for hearing on 9 May 2016 and directions were made for the filing of documents before the hearing. The applicant filed his witness statement on 4 April 2016.
5. The application and counter claim were heard on 9 May 2016. The applicant attended the hearing. The respondents were represented by Xing Suhn Jiang. At the conclusion of the hearing President McCarthy dismissed the application.

The application for appeal and an extension of time

1. On 22 June 2016 the applicant filed an application for appeal from XD 1341/2015 and his request for an extension of time. In reasons for appeal where the applicant for appeal is required 'to state the questions of law or fact involved, that is the errors of fact or law you say have been made, any additional evidence you wish to introduce and reasons why the appeal should proceed' he stated:

The consent orders made on 12 November 2015 only have access to the garage at 102 Gwen Meredith Loop, Franklin. At the preliminary conference in XD 134/2015 it was established that a search also needs to be made at the property at 100 Gwen Meredith Loop or the other place. I provide the additional evidence of the receipt of $1280 paid rent to the respondent. I think the appeal should proceed because I didn't show the evidence of the paid rent on the last conference.

I am seeking an order requiring the respondent to return my property, a search of my possessions needs to be made at the property at 100 Gwen Meredith Loop or the other place or monetary claim amount: $3704.

1. On 29 June 2016 the respondents emailed the tribunal and advised that they oppose the application.
2. On 30 June 2016 the applicant emailed the tribunal and advised that he wished the Tribunal to decide his application for leave to appeal out of time on his written material.
3. On 4 July 2016 the respondents emailed the tribunal setting out their reasons for opposing the applicant's application as follows:

First of all - I don't have the items Mr Lei Wang mentioned in his list. There were couple of students lived with us while Lei Wang was there. He advised that there were two post boxes were delivered to 39 Oodgeroo ave Franklin. But I was not at home during the day as I was working full time. So I had no idea whether the post boxes were delivered to our house or any other person could have access to it or Mr Lei Wang could potentially took all his personal items when he moved out without any notice. In the previous hearing, I have been providing the statements from my previous tenant and friend who was helping us to move house. They did not see the items Mr Lei Wang mentioned.

Secondly, Mr Lei Wang went back to China without any notice and the rent was in arrears for few months. I tried so many ways to contact him to chase the rent and give him notice to move his personal items and rubbishes. He kept ignoring our phone calls, messages with intention not paying the rent and left his rubbishes behind for so many months. We believed that he abandoned the room and according to the law, we do not have responsibilities to keep his rubbishes at home as I sold my house and we all need to move.

Thirdly, please take my personal circumstances into consideration. I have a newborn baby, and I have three other children that I need to take care of while I am working full time. If we keep continuing appeal the decisions and judges, it is just wasting all of our time and tax payers money.

1. Section 151C of the Legislation Act 2001 states:

_(1) This section applies if, under an Act or statutory instrument - _

(a) something must or may be done on a particular day or within a particular period of time; but

(b) a court or other entity has power to extend the time (the relevant time ) for doing the thing.

(2) A person may apply to the court or other entity for the relevant time to be extended even though the relevant time has ended.

(3) The court or other entity may extend the relevant time even though the relevant time has ended.

(5) This section applies only to an applicable law or applicable provision_._

"applicable law" means an Act enacted, or statutory instrument made, after 1 January 2006.

"applicable provision "means a provision inserted after 1 January 2006 into an Act or statutory instrument that is not an applicable law_._

"inserted", for a provision, includes inserted in substitution for another provision.

1. Rule 14(1) of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (the Rules) provides:

(1) A notice of appeal to the tribunal must be filed in the tribunal not

later than 28 days after the day the decision is made, or any further

Note An application for further time may be made before or after the 28-day

period (see Legislation Act, s 151C).

(2) An application for further time must be accompanied by a written

(c) the reasons why the extension of time should be given.

1. Rule 22 of the Rules provides:

22 Application for leave to appeal out of time

(1) This rule applies if a person wants to appeal from a decision of the

(2) The person must apply to the tribunal for leave to appeal.

_(3) The application for leave to appeal must be accompanied by - _

(4) If the applicant wants to present the applicant's case for leave in

writing, the application must state that the applicant wants to do so.

1. The applicant's right of appeal lies under section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) which states:

(a) the tribunal has decided an application (the original application ); and

(b) the original application was not an appeal from a decision by the tribunal.

(2) However, this section does not apply to an application for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007or the Tree Protection Act 2005.

(3) A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.

Consideration of application for leave to appeal out of time

1. As the applicant requested that, pursuant to Rule 22(4), he present the applicant's case in writing, the Tribunal has determined the application for leave on the written material provided.
2. The power granted to the Tribunal is a discretionary power. Pursuant to Rule 14(2)(c) of the Rules an application to extend time must be accompanied by a written statement showing each question involved and the reasons as to why the extension of time should be given.
3. The applicant stated in his statement for an extension of time which was filed with the Tribunal on 22 June 2016:

The case is the residential tenancies issue. I am seeking the respondent to return my property. I didn't show the evidence of paid rent on the last conference. I provide the additional evidence on this time. I travelled to Sydney and I received the decision recently. I request the extension of time should be given.

1. After receiving the application for appeal the Tribunal wrote to the applicant on 23 June 2016 and informed him that he had not answered all the questions relating to his reasons for appeal and stated - Can you please advise the Tribunal of the questions of law or fact involved, that is the errors of fact or law you say have been made.
2. The applicant replied on 24 June 2016 and stated:

The case is the tenancy dispute under law Residential Tenancies Act 1997.

1. The lessor didn't show the evidence of termination notice to me.
2. I didn't show the evidence of paid rent on the last conference, I provide it on this time and I should get my possession.

1. The Tribunal replied to the applicant's email of 24 June 2016 and stated:

In deciding whether to grant an extension of time to appeal, the Tribunal must consider the merits of the appeal application. You have not identified an error of fact or law in the civil dispute decision you are seeking to appeal. In relation to your reasons for appeal in your email dated 24 June 2016, please see below:

1. A termination notice is not relevant in a civil dispute.
2. The fact that you did not provide evidence of paid rent is not an error of fact or law.

If you wish to provide any further submission which you think would prove an error of fact or law please provide it to the Tribunal by close of business 29 June 2016.

1. The applicant replied by email dated 28 June 2016 in which he stated:

On the extension of time, the ACAT ask the nature of the case in summary form, each question involved, the reason why the extension of time should be given. One person said a little bit late, it is OK and asked me to write a statement. I only see the error of fact or law on the appeals application, the error of fact is they said they gave me a termination notice, but I did't (sic) see it.

At the first, I apply a Residential Tenancies Application RT 15/968, On the hearing ACAT transfer that one to SD(sic) 1341/2015. This time I just provide the evidence of paid rent and no termination notice for appeal. I want to know if you could help me to apply for this one or reopen the tenancies application for appeal.

1. In a letter emailed to all parties dated 29 June 2016 the Tribunal stated:

In considering the Application for leave to appeal out of time the Tribunal will consider

(i) Whether the applicant has an acceptable explanation for the delay;

(ii) What action did the applicant take to notify the decision maker that he was contesting the finality of the decision made on 9 May 2016;

(iv) any prejudice to the respondents occasioned by the delay; and

(v) whether it is 'fair and equitable in all the circumstances to extend time'.

1. In an email dated 30 June 2016 the applicant stated:

I wish the Tribunal to decide my application for leave to appeal out of time on my written material.

Beside that, I provide an attached pdf of one cookware picture that I got from the lessor, in order to prove they received the three international parcels and gave me a little things and a lot of valuable things have not been return to me.

1. By email dated 4 July 2016 the respondents replied to the tribunal's email dated 29 June 2016. The contents of the respondents' email is set out in [11] above.

26. It is common ground that the principles to be applied in a case such as this are fairly summarized by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment[1] (Hunter Valley Developments). Wilcox J stated in Hunter Valley Developments:

18 ... Special circumstances need not be shown but the Court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at p 550) Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at p 416) It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at p 485; Chapman v Reilly, Neaves J, 9 December 1983, not reported, at p 7).

1. As well as considering whether the applicant has an acceptable explanation for the delay and whether it is fair and equitable in the circumstances to extend the time limit, the Tribunal will consider a number of non-exhaustive criteria summarised by Wilcox J in Hunter Valley Developments, which he said help the court decide whether or not to exercise its discretion to grant an extension of time, namely:
   • (a) whether any action has been taken by the applicant apart from the application to extend time;
   • (b) whether extending time would cause any prejudice to the respondent;
   • (c) the mere absence of prejudice is not enough to justify the grant of an extension;
   • (d) the merits of the substantive case; and
   • (e) considerations of fairness between the applicant and other persons in a like position.
2. The Tribunal will consider each of the above criteria and the material before the Tribunal in determining whether or not to exercise its discretion to grant the applicant leave.

1. It appears from the material provided by the applicant on 22 June 2016 that his explanation for the delay was that he had travelled to Sydney after the decision and that he had received the decision recently.
2. The Tribunal notes that the applicant was present at the hearing on 9 May 2016 when his application was dismissed. The time for filing an appeal from that decision runs from 9 May 2016. The time does not run from when a party receives an engrossed copy of the order. Accordingly, the 28 days expired on 6 June 2016. The applicant's request for leave to file his appeal out of time was filed 17 days after the 28 day time period had expired. In total, the application for leave was filed 45 days after the decision the subject of the appeal.
3. Apart from travelling to Sydney the applicant has not provided any evidence which could explain his delay in filing his application for appeal. The Tribunal has noted the statements by Wilcox J which are set out in [26] above. The prescribed period of 28 days is not to be ignored. The prima facie rule is that proceedings commenced outside that period will not be entertained and it is a pre-condition to the exercise of the discretion in the applicant's favour that the applicant for extension of time shows an acceptable explanation for the delay.
4. As the applicant was present for the hearing on 9 May 2016 and there is, apart from being in Sydney, no explanation for his not filing his application for appeal at any time after that and before the 28 days expired, the Tribunal is not inclined to exercise the discretion in his favour. The applicant has not provided any details of the time he travelled to Sydney and he returned to Canberra, and in any event if he was in Sydney during that 28 day period why he was unable to post his application for appeal to the Tribunal before the prescribed period expired.
5. The Tribunal is not satisfied that the applicant has shown an acceptable explanation for the delay.
6. While this, of itself, is sufficient for the Tribunal to refuse to grant the applicant leave to commence the appeal application out of time, the Tribunal will consider the other criteria.

Whether any action has been taken by the applicant apart from the application to extend time

1. The applicant did not put any material before the Tribunal which could satisfy the Tribunal that he had been in contact with the Tribunal registry before the 28 days expired and informed the registry that he would be appealing the decision of 9 May 2016.
2. Accordingly, the Tribunal is not satisfied from the available material, that the applicant took any action in relation to his appeal apart from filing his application for appeal and the application to extend time after the 28 days had expired.

Whether extending time would cause any prejudice to the respondents

1. The respondents notified the Tribunal by emails on 29 June 2016 and on 4 July 2016 that they opposed the application to appeal.
2. The applicant and the respondents have been involved in litigation in the Tribunal since 15 October 2015 when the applicant instituted proceedings against the respondents under the Residential Tenancies Act 1997. That application sought orders for the return of property including the property the subject of the subsequent civil application (XD 1341/2015). Orders were made in RT 968/2015 by consent following a conference held on 12 November 2015. The Orders are set out in [4] above. An application for other or interim orders was filed on 28 January 2016 by the applicant in which he sought to set aside the consent orders made on 12 November 2015. This application was dismissed on 1 March 2016.
3. After the orders were made in RT 968/2015 on 12 November 2015 the applicant commenced the civil proceedings in the Tribunal by filing an application on 26 November 2015. It was this application that was heard on 9 May 2016 and dismissed.
4. The Tribunal has considered the information set out in the respondents' email dated 4 July 2016 and noted the protracted litigation history between these parties.
5. The Tribunal is satisfied, for the above reasons, that the respondents would be prejudiced if an extension of time was granted to the applicant.

1. Pursuant to section 79 of the ACAT Act an applicant may appeal the decision to the Tribunal on a question of fact or law. In considering the merits of the applicant's appeal, the Tribunal is cognizant of the authorities which clearly state that the threshold is whether the applicant has arguable grounds of appeal.
2. The applicant did not disclose any questions of fact or law in his application to appeal. The tribunal entered into email correspondence with the applicant in an effort to ascertain the questions of fact or law involved in the appeal. It appeared from the applicant's email dated 24 June 2016 that the applicant was seeking to pursue the residential tenancy dispute (RT 968/2015) in which consent orders were made on 12 November 2015 which included an order that '5. The application is otherwise withdrawn and dismissed'.
3. The application for appeal is from XD 1341/2015. The applicant did not disclose a question of fact or law in his email dated 24 June 2016. On 27 June 2016 the applicant was requested to provide any further submission which you think would prove an error of fact or law...by close of business 29 June 2016. The applicant's email reply is set out at [20] above. The applicant stated in that email 'the error of fact is they said they gave me a termination notice, but I did't (sic) see it'.
4. XD 1341/2015 was a civil dispute application in which the applicant sought that the respondent provide him with the items set out in [1] above or the compensation in [2] above. The Tribunal is not persuaded that the alleged error of fact in the preceding paragraph relates to the application for appeal from the civil dispute decision.
5. The Tribunal has not been able to ascertain any question of fact or law from the applicant's material. It, rather, appears that the applicant does not agree with his application being dismissed on 9 May 2016 and he wants items which he alleges are or have been in the respondent's possession or control. In other words he wants the matter reheard.
6. The decision of President McCarthy was a discretionary decision. Decisions of the Tribunal are not open to appeal generally. In a recent Tribunal decision, De Flumeri v Canberra Discount Chemicals Pty Ltd & Anor[2] General President Crebbin and President McCarthy referred to the limitations on appeal and the role or function of the Appeal Tribunal. At [24] they stated:

In Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11 at [36] - [39], Presidential Member Symons said:

36. An appellant does not have standing to an appeal as of right and is required to identify a question of fact or law (section 79(3)). An appellant cannot merely request the re-exercise of a discretion.

37.In ACT Human Rights Commission v Raytheon Australia Pty Ltd[3] Master Harper stated in relation to the Administrative Appeals Tribunal:

"A decision of the Tribunal is not intended to be open to appeal generally, as is the case, for example, with a judgment of this Court. It must be accepted that there are sound reasons of public policy for this limitation, notwithstanding that some who fail in the Tribunal will have a sense of grievance about it."

38. Acting President Chenoweth also stated in Das v A & A Airconditioning (Civil Disputes)[4]:

"The purpose of the appeal process is not to allow an applicant to try and have a matter reheard because they do not like the previous decision; if that were so there would be no point in the original hearing ..."

39. Pursuant to section 79(3) of the ACAT Act, there must be a question of law or fact identified on appeal that enables the Appeal Tribunal to consider whether the Original Tribunal made an error as to the law or facts raised in those questions.

By reference to these principles, in this case it is not sufficient for the appellant to persuade the Tribunal that it might have (or would have) decided the matter differently had it been the decision maker. The appellant must first show error (or mistake) in the original decision. Only if that occurs may the Tribunal on appeal set aside the original decision.

1. The Tribunal has noted the above cases and has already observed above, that the applicant has not identified a valid question of fact or law. Without that there is no merit in his application for appeal. The Tribunal is not satisfied that the applicant has demonstrated that he has an arguable appeal case.

Consideration of fairness between the applicant and other persons in a like position

1. The Tribunal is satisfied that the applicant has had every opportunity to present his application in the Tribunal. While the applicant is no doubt upset that his application was dismissed on 9 May 2016 the fact is that he has filed very little material going to the merits of his application for appeal before this Tribunal and what material that has been filed has been unhelpful.
2. When considering fairness between the applicant and others in a like position, the Tribunal is satisfied that it is not fair to others to permit this conduct and to grant leave.

1. The Tribunal has considered all of the material before it and the matters set out above, in determining whether it is fair and equitable and otherwise proper to grant the applicant leave. The Tribunal has carefully considered the established principles laid down by Wilcox J in Hunter Valley Developments.
2. For the reasons set out above the Tribunal is not satisfied that, in all of the circumstances, the applicant has an acceptable explanation for the delay or that the applicant took steps to notify the Tribunal of his intended application to appeal and his application for leave to extend time before he filed the applications with the Tribunal. The Tribunal has found that the respondents would be prejudiced if leave to appeal out of time was granted to the applicant. The Tribunal has also found that the applicant's appeal does not have merit as the applicant has not demonstrated that he has an arguable case. Finally, the Tribunal is satisfied that it is not fair to others to grant leave to the applicant.
3. The Tribunal is not satisfied, in all of the circumstances, that it is fair and equitable and otherwise proper to grant the application for leave.
4. The application for leave is dismissed.

[2] [2016] ACAT 50

[3] [2009] ACTSC 55

[4] [2011] ACAT 52