Commissioner for Social Housing v Williams
[2017] ACAT 53
•26 July 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR SOCIAL HOUSING v WILLIAMS (Appeal) [2017] ACAT 53
AA 24/2017
Catchwords: APPEAL – application for leave to appeal out of time – principles to be considered – prima facie time limits must be obeyed – length of delay – reasons for delay – merits of proposed appeal – prejudice to respondent – requirements of justice
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 81
Civil and Administrative Tribunal Act 2013 (NSW) s 41
Federal Court of Australia Act 1976 (Cth) s 37M
Residential Tenancies Act 1997 s 47
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedural Rules (No 2) r 14
Cases cited:Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56
Commissioner for Social Housing v “A” [2015] ACAT 13
Denton v TH White; Decadent Vapours Ltd v Bevan; Utilise TDS Ltd v Davise [2015] 1 All ER 880
Eastman v Commissioner for Social Housing [2006] ACTSC 52
Gallo v Dawson [1990] HCA 30
Giusida Pty Limited v Commissioner for Revenue [2016] ACTSC 275
Hussain & Bilkis v Rahman [2016] ACAT 145
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
Krown Living Pty Ltd v Lando [2016] ACAT 149
Legal Practitioner v Law Society of the ACT [2016] ACTSC 203
Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537
Superal-Wallace v Indypendent Pty Ltd & Anor [2016] ACAT 144
Urbaniak-Bak v Council of the Law Society of the ACT & “RA” [2016] ACAT 156
Williams v Commissioner for Social Housing [2016] ACAT 93
List of
Texts/Papers cited: Matthew Finn, ‘Denton: Mitchell clarified and amplified’, Construction Blog, Thomson Reuters, July 8 2014
Tribunal: President G Neate AM
Date of Orders: 26 July 2017
Date of Reasons for Decision: 26 July 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 24/2017
BETWEEN:
COMMISSIONER FOR SOCIAL HOUSING
Applicant
AND:
AYSHIA WILLIAMS
Respondent
TRIBUNAL: President G Neate AM
DATE:26 July 2017
ORDER
The Tribunal orders that:
1.The application for leave to appeal out of time be dismissed.
………………………………..
President G Neate AM
REASONS FOR DECISION
Introduction
1.On 25 May 2017, a Presidential Member of the ACT Civil and Administrative Tribunal (the Tribunal) dismissed an application by the Commissioner for Social Housing (the Commissioner) under section 47 of the Residential Tenancies Act 1997 for a termination and possession order in relation to premises occupied by Ms Williams.
2.On 4 July 2017, the Commissioner lodged with the Tribunal an application for appeal against that decision. Because the lodgement occurred after the end of the prescribed period for lodging appeals, the Commissioner sought leave to appeal out of time, and included a statement in accordance with Rule 14 of the ACT Civil and Administrative Tribunal Rules 2009 (No 2) (ACAT Rules).
3.Ms Williams opposes the grant of leave to the Commissioner to appeal out of time.
4.At a directions hearing on 18 July 2017, the representatives of the parties made submissions concerning the law about whether leave should be granted to appeal out of time, and the circumstances surrounding this application. The Commissioner’s representative referred to the decision of the NSW Civil and Administrative Tribunal (NCAT) in Jackson v NSW Land and Housing Corporation[1] (Jackson). Ms Williams’ representative referred to the Mitchell Denton principles. He relied on the judgment of the English Court of Appeal in Mitchell v News Group NewspapersLimited[2] (Mitchell), and an article[3] on that judgment and the subsequent Court of Appeal decision in Denton v White; Decadent Vapours v Bevan,Utilise TDS v Davies[4] (Denton). He also quoted from the judgment of the plurality of the High Court in Aon Risk Services Australia Limited vAustralian National University[5] (Aon).
Applications for leave to appeal out of time – principles
[1] Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
[2] Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537
[3] Matthew Finn, ‘Denton: Mitchell clarified and amplified’, Construction Blog, Thomson Reuters, July 8 2014
[4] Denton v TH White; Decadent Vapours Ltd v Bevan; Utilise TDS Ltd v Davise [2015] 1 All ER 880
[5] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
5.Section 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) allows a party to appeal a decision made by an original Tribunal on a question of fact or a question of law. Appeals are considered within the Tribunal by an Appeal Tribunal.[6]
[6] Section 81, ACAT Act
6.A notice of appeal must be filed in the Tribunal not later than 28 days after the day the original decision is made.[7] Once time runs out, the party has to apply for leave to appeal out of time. The application for leave to appeal must be accompanied by a draft notice for appeal, and must have a written statement showing the nature of the case, the questions of fact or of law that the person says are involved in the appeal, and the reasons why leave should be given.[8]
[7] Rule 14, ACAT Rules
[8] Rules 14 and 22, ACAT Rules
7.An application for leave to appeal out of time is not an appeal in itself, and a decision about such an application is not a decision of an Appeal Tribunal. There is no appeal unless leave is granted.[9] The application for leave is dealt with as an original application but is given an ‘AA’ case identifier. As a matter of practice, presidential members are allocated to the Tribunal for the application. If leave is given and time extended, an appeal can progress using the same file and, subject to availability, the same presidential member.
[9] See the discussion of this by Elkaim J in Legal Practitioner v Law Society of the ACT [2016] ACTSC 203
8.The principles that the Tribunal must follow when considering an application for leave to appeal out of time are well-established and used regularly by courts and tribunals. In Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority)[10] (Concerned Citizens), Justice Refshauge repeated the principles he had set out in an earlier case:
[10] [2015] ACTCA 56 at [20] – [21]
1. Time limits are important and must, prima facie, be obeyed.
2. In order to justify a court acceding to an application to extend time, there must be some material on which the court can exercise its discretion.
3. Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so.
4. There should be an explanation for the delay, as to which any action (other than to appeal) that has been taken by the applicant is relevant.
5. The court must consider any prejudice to the respondent in defending the proceeding, as caused by the delay, and any such prejudice will tell against the extension.
6. The mere absence of prejudice is not enough to justify the extension of time.
7. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted.
8. The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case.
9. Nevertheless, the application is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula.
10. In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.
9.That passage has been relied on by the Tribunal in published decisions[11] and oral ex tempore decisions.
[11] See, e.g. Urbaniak-Bak v Council of the Law Society of the ACT & “RA” [2016] ACAT 156; Krown Living Pty Ltd v Lando [2016] ACAT 149; Hussain & Bilkis v Rahman [2016] ACAT 145; Superal-Wallace v Indypendent Pty Ltd & Anor [ 2016] ACAT 144
10.The judgments referred to by the parties to this application illustrate and expand upon some of those principles.
11.Relevantly to principles 2 and 4 above, Ms Williams submitted that this Tribunal should be guided by the following statements from the Court of Appeal’s judgement in Mitchell:[12]
... The court will want to consider why the default occurred. If there is a good reason for it the court will likely to decide that relief should be granted. For example if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then depending on the circumstances, that may constitute a good reason ... But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason.
[12] Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [41]
12.That passage must be considered in context. The case concerned proceedings in the High Court in England, Queens Bench Division, and involved compliance with rules concerning the late filing of costs budgets for one party in the sum of £506,425. The judgement was the first time the Court of Appeal had been called upon to decide on the correct approach to the revised version of the Civil Procedure Rules (CPR) which came into force on 1 April 2013 to give effect to the reforms recommended by Sir Rupert Jackson. The question at the heart of that appeal was how strictly the courts should now enforce compliance with rules, practice directions and court orders. The Court of Appeal noted that the traditional approach of English civil courts had been to excuse non-compliance if any prejudice caused to the other party could be remedied (usually by an appropriate order for costs). In his review of civil litigation costs, Sir Rupert Jackson concluded that a tougher and less forgiving approach was required, and his recommendations were incorporated into the CPR.[13]
[13] Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [1]
13.Among other things, the Court of Appeal referred to the “overriding objective” of enabling the court to deal with cases “justly and at proportionate cost.”[14] However, there was now a shift away from exclusively focusing on doing justice in the individual case. The Court of Appeal noted that the Jackson reforms, and the Woolf reforms that preceded them, were not intended to render the overriding objective subject to an overarching consideration of securing justice in the individual case. Rather the revisions were intended to make clear that the relationship between justice and procedure has changed. The tougher, more robust approach to rule-compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases. This requires an acknowledgement that the achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations. Those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds. But more importantly they serve the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the court enables them to do so.[15]
[14] Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [25]
[15] Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [38] quoting from the 18th implementation lecture on the Jackson reforms
14.In endorsing that approach, the Court of Appeal referred to the “importance of the court having regard to the needs and interests of all court users when case managing in an individual case.”[16] According to the Court of Appeal, the “new more robust approach that we have outlined above will mean that from now on relief from sanctions should be granted more sparingly than previously.”[17] Their Lordships expressly recognised that “there are those who will find this new approach unattractive. There may be signs that it is not being applied by some judges.”[18] Later in the judgment, the Court of Appeal seemed to criticise a judge who appeared to be “focusing exclusively on doing justice between the parties in the individual case and not applying the new approach which seeks to have regard to a wide range of interests.”[19]
[16] Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [39]
[17] Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [46]. The Court of Appeal allowed that the court will usually grant relief if there has been “no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms.” However the court acknowledged that even the question of whether a default is insignificant may give rise to dispute and therefore to contest of applications; at [40], see also [48].
[18] Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [47]
[19] Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [51]
15.I note that, as the article provided by Ms Williams indicates, the force and effect of aspects of the judgment in Mitchell appeared to have been modified to some degree by the subsequent Court of Appeal decision in Denton.
16.The decision of the Court of Appeal in Mitchell was made in circumstances and by reference to rules that are different from those that apply to proceedings before the Tribunal. Hence the passage relied on by Ms Williams should not necessarily be applied without qualification to proceedings such as these. But, as I explain below, the overarching principle explained in that case is not irrelevant here.
17.Ms Williams also relies on extracts from the following passage from the judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon:[20]
An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application to case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consistent with this Court’s earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the Court and other litigants. Such statement should not be applied in the future.
[20] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [111] (citations omitted)
18.That passage, dealing as it does with amendments of pleadings under particular court rules and in a context where orders for costs can be made, can only be relevant to this application to the extent that (by analogy) it shows that a court or tribunal should have regard to a range of case management matters when deciding whether to permit an extension of time for an appeal which would otherwise be prohibited by the relevant rules.
19.In that respect it indicates a trend in judicial administration that is consistent with the overarching approach being adopted in England as reflected in the Court of Appeal’s decision in Mitchell. It is also consistent with case management practices elsewhere in Australia, illustrated by section 37M of the Federal Court of Australia 1976 (Cth) which provides:
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Court;
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
20.The decisions quoted above support an approach that is consistent with managing the diverse range and high volume of matters that come to the Tribunal. There is no doubt that dealing with applications for extensions of time to lodge appeals (as well as analogous applications for variations of directions in relation to matters proceeding to a hearing) takes time as well as member and other resources that could be used (and in some cases have already been allocated) for other substantive matters. In other words, the amount of attention required to deal with matters such as this necessarily displaces resources that could be used to deal with other aspects of the Tribunal’s work.
21.The approach underpinning those judgments is also consistent with:
(a)the object of the ACAT Act “to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice;”[21] and
(b)the statutory principle that, in exercising its functions under the ACAT Act, the Tribunal must ensure that its procedures are “as simple, quick, inexpensive and informal as is consistent with achieving justice.”[22]
[21] ACT Civil and Administrative Tribunal Act 2008 section 6(c)
[22] ACT Civil and Administrative Tribunal Act 2008 section 7(a)
22.The decision of the NCAT Appeal Panel in Jackson is the most directly comparable and hence relevant to the subject of these proceedings. It involved an application by a tenant of residential premises for an extension of time in which to appeal against orders made by the NCAT to terminate the residential tenancy agreement. The Appeal Panel concluded that the application should be dismissed, and set out some of the principles that apply in relation to applications for extension of time in which to appeal from a division of the NCAT to the Appeal Panel.[23]
[23] Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [1], [2]
23.The relevant Rules required an internal appeal from a decision in a residential tenancy matter to be instituted within 14 days of the date on which the applicant was notified of the decision. In Jackson, the notice of appeal was lodged nearly three weeks out of time. Section 41(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) empowers the NCAT to “extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.” Under section 41(2), an application for an extension of time “may be made even though the relevant period of time has expired.”
24.The Appeal Panel observed that time limits, including the specification of the time within which an appeal from an internally appealable decision must be lodged:
are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced.[24]
[24] Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [21]
That statement explains the basis of the first principle listed by Refshauge J in Concerned Citizens.
25.The Appeal Panel acknowledged that exceptions should be made “where the interests of justice so require,” and noted that the express power in section 41 of the NCAT Act to grant extensions of time allows the NCAT to “prevent the rigid enforcement of time limits becoming an instrument of injustice.”[25] The Appeal Panel referred to the decision of McHugh J in Gallo v Dawson[26] where his Honour wrote that the object of a rule to grant an extension of time is to ensure that the rules that fix times from doing acts do not become “instruments of injustice.” His Honour continued:
The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. ... 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. ... As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy[27]... “The rules of court must prima facie be obeyed, and in order to justify a court 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.”
[25] Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [21]
[26] Gallo v Dawson [1990] HCA 30 at [2]
[27] (1965) 1 WLR 8, 12; (1964) 3 All ER 933, 935
Those statements provide support for principles 2, 9 and 10 listed by Refshauge J in Concerned Citizens.
26.Having reviewed relevant decisions of courts and tribunals, the Appeal Panel of NCAT wrote that the considerations that will generally be relevant to the Appeal Panel’s consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:
(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),
and
(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.[28]
[28] Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] (citations omitted)
27.Having regard to the authorities cited by parties to this matter, and the decision of Refshauge J quoted above, it is clear that, in essence, the principles require the Tribunal to consider the length of the delay and the applicant’s explanation for delay, the merits of the proposed appeal, whether the respondent would suffer prejudice if the application is allowed, and whether justice requires that an extension of time be granted.
28.Considering the merits of the proposed appeal in the context of an application for extension of time to appeal requires that the Tribunal consider whether there is an arguable basis for concluding that the original Tribunal has made an error of fact or of law that is material, in the sense that it is an error that might make a difference to the outcome of the case.[29]
[29] See the consideration of the approach that the ACAT should take on appeal in Giusida Pty Limited v Commissioner for Revenue [2016] ACTSC 275 at [29] to [42]
Applying the principles to the circumstances of this application
The length of delay
29.The Commissioner lodged his application for appeal in the Tribunal registry some nine days outside the prescribed period.
30.Ms Williams contends that the relief was not sought promptly and effect of the default is not trivial.
31.The Commissioner submits that the delay is relatively minor, particularly if two days are deducted for the weekend.
32.I note that in Mitchell, the Court of Appeal allowed that the court will usually grant relief if there has been “no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms.” However the Court acknowledged that even the question of whether a default is insignificant may give rise to dispute and therefore to contest of applications.[30]
[30] Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537, [40], see also [48]
33.The delay of nine days is not insignificant, when compared with, say, lodgement on the day following the end of the prescribed period.
Reasons for delay
34.The Commissioner explained the delay in lodging the application for appeal by reference to the time taken to obtain transcript of the hearing before the original Tribunal. As I understand it, the Commissioner ordered transcript almost immediately after the hearing and received it on 2 June 2017. The Commissioner acknowledged that seven days is the usual period for the provision of transcript. It was submitted that if one were to allow those seven days plus two days for a weekend, then the nine days by which the lodgement of the application for appeal was late could notionally be discounted and the Tribunal should exercise its discretion to grant the extension of time to file the application for appeal.
35.This submission lacks merit. If, as the Commissioner submits (and this Tribunal understands), the usual period for obtaining transcript is seven days then, on the approach urged by the Commissioner, the Tribunal would, if requested, routinely add seven days to the appeal period in every case where the appellant had obtained transcript. That cannot be accepted. Furthermore, given that the Commissioner was represented at the hearing before the original Tribunal and appears to have acted in a timely way in ordering and obtaining the transcript, there were about 21 days in which to prepare an application for appeal.
36.The Commissioner’s representative also suggested that there were staffing shortages and other issues in the office which might have added to the delay in lodging the application for appeal. No evidence was provided in support of that assertion, nor was it pressed. However, as the authorities quoted earlier indicate, busyness and volume of work are not of themselves exculpatory factors for law firms when seeking an extension of time. The same could be said of a public authority. The Commissioner could have lodged a minimal application for appeal within the prescribed period and later sought to amend it, had that been necessary.
37.Another factor is relevant here. The Commissioner appears regularly before this Tribunal. The Commissioner can be taken to be familiar with the practices and procedures of the Tribunal. For those reasons, the Commissioner can be treated in an application such as this, in the same way as a legal practitioner, rather than as a self-represented litigant who has no legal background and no familiarity with the procedures of the Tribunal. Indeed, the Commissioner is (probably) meant to operate as a model litigant.
38.I am not satisfied that the circumstances in which the application for appeal was lodged out of time merit the grant of an extension of time in which to lodge the appeal.
Significance of the case on appeal
39.The Commissioner submits that the appeal raises an important question of statutory interpretation. The issue involves the operation of section 47(1) of the Residential Tenancies Act 1997, which provides that, on application of a lessor, the Tribunal “may make a termination and possession order if satisfied that” three specified criteria are met. Specifically, the Commissioner seeks a ruling from an Appeal Tribunal on the extent of the discretion conferred on the Tribunal by the word “may” in that subsection.
40.According to the Commissioner, there is only one appeal Tribunal decision that turns to the operation of section 47, Williams v Commissioner for Social Housing,[31] and that decision notes that the discretion in section 47 is narrower than other areas of the Act. For that reason, the Commissioner submits that there is no definite law on the extent of the discretion within section 47. From the Commissioner’s standpoint, it is important to have the issue resolved authoritatively.
[31] Williams v Commissioner for Social Housing [2016] ACAT 93. The issues has been dealt with by the Tribunal previously, see e.g. Commissioner for Social Housing in the ACT v “A” [2015] ACAT 13, and cases cited including the judgment of Ryan J of the ACT Supreme Court in Eastman v Commissioner for Housing for the ACT [2006] ACTSC 52
41.I accept that the Commissioner, and potentially other parties, would benefit from an appeal Tribunal ruling on the question raised in the application for appeal. However, I am not satisfied that the significance of the issue is a sufficient basis for granting leave to appeal out of time in this case because:
(a)if the issue is so significant, the Commissioner could have ensured that an appeal was lodged within the prescribed period (particularly given the Commissioner’s involvement in the original hearing and the apparently timely acquisition by the Commissioner of the transcript of that hearing to enable an informed decision to be made about whether to appeal in that case); and
(b)given that the same issue has arisen on a number of occasions before the Tribunal, the Commissioner is likely to have opportunities in the future to take the issue to an appeal Tribunal, and hence a refusal to grant leave to appeal out of time in this case will not deprive the Commissioner of the opportunity to have the issue dealt with authoritatively.
Prospects of success on appeal
42.The application for appeal states that the original Tribunal incorrectly exercised the discretion within section 47 of the Residential Tenancies Act 1997 and fell into jurisdictional error.
43.As noted earlier, considering the merits of the proposed appeal in the context of an application for extension of time to appeal requires that the Tribunal consider whether there is an arguable basis for concluding that the original Tribunal has made an error of fact or of law that is material, in the sense that it is an error that might make a difference to the outcome of the case.[32]
[32] See the consideration of the approach that the ACAT should take on appeal in Giusida Pty Limited v Commissioner for Revenue [2016] ACTSC 275 at [29] to [42]
44.According to the application for appeal, the Commissioner submits that:
(a)the word “may” within section 47 confers a power to be exercised should the prerequisites of the provision be satisfied;
(b)in circumstances where the preconditions of section 47 are satisfied, the Tribunal has a duty to make the order sought;
(c)the Tribunal’s discretion is limited to dismissing an application should the prerequisites not be satisfied.
45.In support of the submissions, the Commissioner refers to judgments of the High Court in Ward v Williams[33] and Finance Facilities Pty Ltd v Federal Commissioner of Taxation[34] about the scope of discretion conferred by the use of ‘may’ in other statutes. The Commissioner also refers to the use of ‘may’ in sections 48 and 49 of the Residential Tenancies Act 1997 and section 146 of the Legislation Act 2001. I accept, for present purposes, that the Commissioner has an arguable case.
[33] Ward v Williams [1955] HCA 4
[34] Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12
46.It is clear that, if an Appeal Tribunal accepts the Commissioner’s argument about the scope of the Tribunal’s discretion under section 47, that could make a difference to the outcome of the case.
Prejudice to the respondent if leave is granted
47.The Commissioner submits that there is little prejudice to Ms Williams should the Tribunal extend the time frame within which an appeal can be lodged.
48.Ms Williams' representative submitted that she would suffer prejudice if the Tribunal were to grant leave to appeal out of time. In essence, he stated that Ms Williams would suffer psychological damage at the time she is about to be released from prison. She is a vulnerable person who has had a difficult life. She has undertaken rehabilitation courses at the institution where she is detained. In his submission, her rehabilitation could be adversely affected if she had the additional strain of this appeal. In support of his submission, he relied on the evidence of Ms Williams' circumstances that was before the original Tribunal.
49.I give relatively little weight to this submission because, even accepting the submission at face value, it is likely that Ms Williams would have suffered the same adverse effects if the appeal had been lodged in time. I do not understand the submission to be that some additional prejudice would be suffered by her flowing from the lateness of the application by some nine days.
50.I note, however, that at the end of the appeal period, Ms Williams should have the right to retain the benefit of the decision of the original Tribunal
51.In any case, the mere absence of prejudice (or additional prejudice) is not enough to justify the extension of time.
Conclusion
52.The starting point in deciding this application is that time limits are important and prima facie must be obeyed. The purpose of the time limits is to promote the orderly and efficient conduct of proceedings in the Tribunal and achieve finality in litigation. All parties should comply with the time limits, but the Tribunal expects that parties who are legally represented or public authorities will be particularly careful to meet those requirements.
53.Having regard to the applicable principles and the evidence in relation to them, I am not satisfied that leave should be granted for the Commissioner’s appeal to be filed outside the prescribed period. In summary, there is no evidence of compelling circumstances that prevented the Commissioner from lodging an appeal within the 21 days or so after receiving the transcript of the hearing before the original Tribunal. The legal question which the Commissioner seeks to have definitively resolved arises from time to time in proceedings before the Tribunal. The present case is not unique and hence refusal of leave to appeal out of time in this case will not deprive the Commissioner or a broader interested range of parties (potential or actual) from having this issue resolved.
54.The demands of justice (whether for the parties to these proceedings or more broadly as described in Miller) do not require the grant of an extension, nor would the enforcement of the time limit in this case work an injustice upon the applicant.
55.It follows that the application for leave to appeal out of time is refused.
56.In the circumstances of this case, there was no difficulty in reaching that conclusion. However, the way in which the case was argued prompted the preparation of written reasons.
57.The publication of decisions in relation to applications such as this, including the criteria taken into account by this Tribunal when dealing with those applications, should provide guidance to other parties. In particular, it should send a message that parties and their representatives should routinely comply with rules, practice directions and orders of the Tribunal. If that happens, applications such as this, which consume the resources of the parties and divert resources of the Tribunal from dealing with other substantive matters, will be less frequent and perhaps become a thing of the past.[35]
[35] Compare Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [60]
………………………………..
President G Neate AM
HEARING DETAILS
FILE NUMBER:
AA 24/2017
PARTIES, APPLICANT:
Commissioner for Social Housing
PARTIES, RESPONDENT:
Ayshia Williams
REPRESENTATIVE FOR APPLICANT
Mr D Safi Westendorf
REPRESENTATIVE FOR RESPONDENT
Mr D Emerson-Elliot
TRIBUNAL MEMBERS:
President G Neate AM
DATES OF HEARING:
18 July 2017
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