Whipps v Caravan & RV Central Pty Ltd

Should the power to extend the time to lodge the appeal be exercised?

1. Mr Whipps is taken to have been given notice of, and reasons for, the decision under appeal on 3 June 2016: r 13(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules). He was required to lodge a Notice of Appeal within 28 days from that date: r 25(4)(b) of the NCAT Rules.
2. As the notice of appeal was not lodged until 7 March 2017, or about nine months after the statutory deadline had passed, the appeal cannot proceed unless the power conferred by s 41 of the NCAT Act to extend the period of time to lodge an appeal, is exercised. That power must be exercised judicially having regard to the "guiding principle" that the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36 of the NCAT Act; Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [18].
3. In Jackson the Appeal Panel identified at [22] a number of factors generally relevant to the consideration of whether to extend time to lodge a Notice of Appeal: (1) 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 appellant; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable (citations omitted)].

Explanation for the delay

1. Mr Whipps asserts that a number of factors contributed to the delay in lodging the appeal.
2. He claims that on receiving the decision under appeal, he contacted the NCAT registry and was advised that he could make a second application, providing that the ground relied upon to support that application was different to that relied upon in the original application. He claims that it was on the basis of that advice that he decided not to appeal the decision but rather to lodge a fresh application.
3. The second application was heard by NCAT on 20 September 2016 and dismissed on the same day for want of jurisdiction. In written reasons for that decision, the Tribunal stated that the "Issues between the parties have been dealt with in a previous judgement of the Tribunal …. The doctrine of res judicata applies to prevent the re-hearing of the matter": at [6], [7].
4. Neither Mr Whipps nor his solicitor attended the 20 September 2016 hearing. Each claim they did not receive notice of that hearing. A file note made by an NCAT registry officer records that on 18 October 2016 Mr Whipps' solicitor contacted NCAT to enquire about the progress of the second application and was informed that the matter had been dismissed four weeks earlier. The note recorded that the solicitor claimed that on lodging the second application she expressly requested that she be sent all notices relating to the application.
5. Following receipt of that advice, Mr Whipps lodged a formal complaint with NCAT about a number of matters, including the conduct of the original hearing and NCAT's alleged failure to notify him of the September 2016 hearing. In addition, he requested a copy of the sound recording of the original hearing. In a letter in reply dated 16 December 2016, the Division Head of the Consumer and Commercial Division wrote that a sound recording of the original hearing was not available because of a technical problem. The Deputy President advised Mr Whipps of his right to appeal but pointed out the time for lodging an appeal had passed.
6. Mr Whipps claimed that a combination of factors, including personal illness, resulted in further delay in lodging the notice of appeal.

Conclusion

1. Time limits are imposed to bring finality to the decision-making process. They are an important, but not an absolute, value. Once the threshold questions of whether a reasonable explanation for lodging an appeal out of time and whether the respondent will suffer substantial prejudice are resolved, the question must be asked whether or not justice can be done to both parties if the matter proceeds to an appeal having regard to the need to "facilitate the just, quick and cheap resolution of the real issue in the proceedings". It is to that question that the considerations outlined in Jackson are ultimately directed.
2. RV Central opposes Mr Whipps' application for an extension of time and contends that the delay in lodging the notice of appeal was excessive. However, RV Central does not claim that it would suffer significant prejudice if leave to appeal out of time was granted.
3. The explanation for the delay proffered by Mr Whipps is not compelling but is, nonetheless, adequate. While RV Caravan did not identify any specific prejudice it is to likely suffer, it is likely that it would suffer some, if not substantial prejudice if the appeal were to proceed.
4. For the reasons discussed below, we have concluded that the appeal has merit. While the considerations are finely balanced, especially given the length of the delay in bringing the appeal, in our opinion, the balance of considerations favour granting an extension of time to lodge the Notice of Appeal.

Decision under appeal

1. Following directions made by the Tribunal to file and exchange evidence, the Application was heard in Nowra on 12 April 2016.
2. In written reasons for the decision under appeal, the Tribunal summarised the application made by Mr Whipps as having been "brought on the basis that the caravan was unstable under tow and was prone to 'fishtailing'": [13]. The Tribunal wrote at [16]: As pleaded the claim focuses on instability and as a result the case stands or fall on whether or not the applicant establishes such a defect to the requisite degree. The caravan might have other faults but they are not the subject of the application.
3. Under the heading "Respondent's case" the Tribunal wrote that RV Central's director, Anthony Bitcom (who represented RV Central at first instance and in this appeal) "denied that the caravan was unstable and that it failed to tow satisfactorily": [20]. The Tribunal noted Mr Bitcom's claim that "he and his mechanic had driven it and watched it under tow and that it seemed satisfactory to both of them": at [20].
4. The Tribunal gave these reasons for dismissing the application: Analysis 23. Although there is a deal of technical detail in the Maroc report [a report prepared by a mechanical engineer, tendered by Mr Whipps], little of it deals with the central issue of whether or not the van is indeed on the road unstable under tow. One imagined that there might be wind tunnel tests, calculations of the mass and how it is distributed, moments and the like. There was little or none of this although, as mentioned above, strategies to improve handling were canvassed. I was not minded to accept Mr Larocca's assessment -from watching it or driving it- that the caravan was unsafe as this was an opinion clearly outside his expertise. 24. I was left with Mr Whipps' personal disappointment in the van but no persuasive expert evidence of defect or fault. The burden of proof lies on the applicant to satisfy the tribunal about defects and this could not be achieved on the evidence before me at the hearing.

Ground 1: Failure to give proper and genuine consideration to the issue

1. A central issue raised by Mr Whipps in the initiating application to NCAT and before the Tribunal during the hearing was the question of the safety of the caravan. In addressing this issue Mr Whipps tendered a report prepared by Mr Mario Larocca, a mechanical engineer with Marloc Engineering dated 22 January 2016. In the summary of his detailed report which referred to several issues which he regarded as defects, Mr Larocca concluded: It is my opinion that this caravan cannot be used because of the inadequate axle capacity and poor weight distribution. It is UNSAFE to tow in its present condition.
2. In addition, Mr Whipps relied on a report, albeit brief, prepared by a NRMA authorised mechanic after road testing the vehicle: Vehicle also affected and caravan swaying over double lines with vehicle in centre of lane. This affects the safety of the occupants and other road users. Caravan must not be issued until issue rectified. (emphasis added)
3. In the Tribunal's reasons for decision, the question of safety of the caravan was scarcely dealt with. The Tribunal rejected the assessment made by Mr Larocca and the NRMA but the reasons for rejection do not indicate that the Tribunal adequately addressed this issue.
4. A failure to consider a "substantial, clearly articulated argument relying upon established facts" may amount to a failure to accord procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26; 77 ALJR 1088 (Dranichnikov) at [24]. It might also amount to a constructive failure to exercise jurisdiction: see for example, Dranichnikov at [25]; Ali v AAI Limited [2016] NSWCA 110 at [66].
5. However, as Basten JA pointed out in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at [22] there are important limits to the principles described in Dranichnikov: [N]either Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [35].
6. In addressing whether or not there has been a failure to respond to a substantial argument made a party, the concern of the law in this area is to avoid "practical injustice": Rodger v De Gelder [2015] NSWCA 2011 at [93]; AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 at [95].
7. In Mistral International Pty Ltd v Polstead Pty Ltd [2002] NSWCA 321, the Court of Appeal was highly critical of a judge who failed to give reasons for rejecting a well-qualified expert's testimony. Sheller JA wrote at [79]: His Honour gave no reason for saying that this was a significant defect in Mr Whittaker's evidence nor was it ever suggested to Mr Whittaker that it was. For a judge to find that there is a significant defect in the evidence of a witness with the qualifications, history and experience in design and design failure analysis, particularly in the field of design and detailing of plastic components for manufacture, the very subject of this report, without troubling to give any sensible reason for doing so is, to put it mildly, wrong. Such a conclusion cannot possibly be allowed to stand.
8. In Moylan v Nutrasweet [2000] NSWCA 337, the Court of Appeal was critical of a judge who simply expressed a preference for one expert's evidence without engaging with the arguments made by the parties concerning that evidence. Sheller JA (at [63]) discussed the problem by reference to a decision of the English Court of Appeal in Flannery v Halifax Estate Agencies Limited [1999] EWCA Civ 811; [2000] 1 WLR 377. At [66]-[67] he said: Henry LJ referred [in Flannery] to Eckersley v Binnie (1988) 18 Con LR 1 at 77-8 where Bingham LJ said that: "a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons". In Flannery at 382 Henry LJ said: "where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence…"
9. The issue of the safety of the caravan was squarely raised by the reports prepared by Mr Larocca and the NRMA. It was significant and centrally relevant to the decision being made.
10. In this case, Mr Whipps adduced evidence from two qualified experts. As far as we are able to discern, in contrast with the evidence given by RV witnesses, both were independent. Mr Whipps' evidence concerning his experience of the instability of the caravan was supported by the independent assessments of the two experts. The truthfulness of his claim, at least in respect of the original state of the caravan, can be inferred from the very fact that RV Caravan modified the caravan after the first complaint. It was not to the point that the Member could imagine tests and calculations, such as "wind tunnel tests, calculations of the mass and how it is distributed, moments and the like" other than those provided in Mr Larocca's report: see Reasons at [23]. The Tribunal's task was to engage with his expert opinion that when he had road-tested the caravan he had found it to be unstable. Moreover, the Member had to engage with this opinion in the context that the NRMA mechanic and Mr Whipps had also come to the same opinion. Unfortunately, the Tribunal appears to have focussed on what he regarded as defects in the report rather than the substance of the report. By doing so, he failed to engage with that critical evidence in any considered fashion and thus failed to provide "a coherent reasoned opinion".
11. The failure to engage with the evidence goes further. If the issue was whether or not the caravan was unstable and behaved unsafely, it is even arguable that no greater expertise than the general ability to drive a motor vehicle with a caravan is required. If three experienced drivers all report similar behaviour on the part of the caravan, and they consider that the caravan is unstable, that was evidence that the Tribunal should have dealt with but did not. In failing both fully to consider that evidence, and to provide cogent reasons for rejecting it, especially the evidence of independent witnesses, the Tribunal fell into error.
12. The Tribunal's summary dismissal of the evidence relied upon by Mr Whipps in circumstances where no independent evidence was adduced by RV Central, founds a conclusion that the Tribunal failed to give proper, genuine and realistic consideration to the issue.
13. This ground of appeal is established and amounts to an error of law.

Conclusion

1. Given our conclusion it is not necessary to determine the second ground of appeal.
2. The orders made by the Tribunal should be set aside and the matter remitted for a new hearing. Whether the parties should be permitted to call fresh evidence given the passage of time, is a matter for the Tribunal to decide.

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: 28 July 2017