Hussain and Bilkis v Rahman (Appeal)

[2016] ACAT 145

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HUSSAIN & BILKIS v RAHMAN (Appeal) [2016] ACAT 145

AA 32/2016 (RT 1083/2015)

Catchwords:              APPEAL – APPLICATION FOR LEAVE TO APPEAL OUT OF TIME – principles – minor delay – no prejudice to other party identified – importance of finality – importance of respect for time limits – no material produced to support application – no arguable grounds of appeal identified – no miscarriage of justice – application refused

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 79, 81

Subordinate

Legislation cited:      ACT Civil and Administrative Tribunal Procedural Rules (No 2) rr 14, 22

Cases cited:Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56

Hussain v Fahrmand [2016] ACTSC 122
Legal Practitioner v Law Society of the ACT [2016] ACTSC 203

Wang v Lin & Jiang [2016] ACAT 84

Tribunal:                   President L Crebbin

Date of Orders:  13 December 2016

Date of Reasons for Decision:         13 December 2016

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          AA 32/2016

(RT 1083/2015)

BETWEEN:

MOHAMMAD HUSSAIN

BAZLUN BILKIS

Appellants

AND:

ABDUR RAHMAN

Respondent

TRIBUNAL:President L Crebbin

DATE:13 December 2016

ORDER

The Tribunal orders that:

1.The application for leave to appeal out of time is dismissed.

………………………………..

President L Crebbin

REASONS FOR DECISION

1.Mr Hussain and Ms Bilkis have applied for leave to appeal a decision out of time. Their application is refused because, although the period in which they delayed submitting the application was not significant and they had some explanation for the delay, I cannot be satisfied that there is an arguable case for appeal or that justice demands that they be allowed to appeal. They have not produced material to support their application and having regard to the importance of finality of litigation and the need to respect time limits, it is not proper to extend time to appeal.

2.Section 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) allows a party to appeal against 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.[1]

[1] Section 81, ACAT Act

3.A notice of appeal must be filed no later than 28 days after the date that a decision is made.[2] If time runs out, leave (or permission) has to be sought.[3]

[2] Rule 14, ACAT Procedure Rules 2009 (No 2)

[3] Rule 22, ACAT Procedure Rules 2009 (No 2)

4.An application for leave to appeal is not an appeal in itself. There is no appeal unless leave is granted.[4]

[4] See the discussion of this in Legal Practitioner v Law Society of the ACT [2016] ACTSC 203

5.When deciding whether to give leave, the tribunal must consider the explanation for delay, the merits of the proposed appeal and whether justice requires that the appeal application be allowed.[5]

[5] Hussain v Fahrmand [2016] ACTSC 122; Wang v Lin & Jiang [2016] ACAT 84

6.Refshauge J helpfully summarised the principles that guide these decisions in Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority).[6] Although he refers to the principles as applying to courts, the principles apply equally to tribunals because like courts, tribunals are required to make decisions in accordance with law. Bearing in mind that most tribunals’ objects include the need to ensure that decisions are resolved quickly,[7] it is arguable that the ACAT should approach these applications with a particular focus on the importance of adhering to time limits. The principles are:

[6] [2015] ACTCA 56 at [20] – [21]

[7] See section 6(c) and section 7(a), ACAT Act

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.

7.To understand why leave is not granted in this case it is useful to know its history.

8.In November 2015 the Tribunal was notified of a dispute between a lessor, Dr Rahman and tenants, Bazlun Bilkis and Mohammad Hussain, about a rental bond of $2000. The premises were rented by the tenants in the first half of October 2010. This was a ‘Mr Fluffy’ house and the tenants vacated on 25 September 2015.

9.The tenants did not attend the conference about the dispute. Because the lessor wanted to claim an amount larger than the bond, the dispute was referred to a hearing and the lessor filed an application seeking a total payment of $3604.67, comprised of rental arrears of $2925 and unpaid water usage charges of $679.67.

10.The tenants’ request to adjourn the hearing listed for 11 April 2016 because of various health concerns was refused. They foreshadowed a counter-claim for compensation from the lessor and were correctly told by the tribunal registry that a counter-claim could be pursued as a separate application at some later time.

11.The lessor’s application was accompanied by documents including a copy of the agent’s trust ledger relating to the tenancy, a spreadsheet showing payments received from the tenants during the tenancy and a water consumption statement.

12.The application was heard in the absence of the tenants on 11 April 2016. Orders were made for the payment of $3,604.57 and release of the disputed bond to the lessor in reduction of the amount due. The tenants were to pay the balance of $1,604.67 to the lessor by 19 April 2016. These orders were made after the tribunal member analysed the information provided in support of the lessor’s application and satisfied herself that the amounts claimed were due and payable.

13.The orders were posted to the tenants and on 17 April 2016 they emailed the tribunal indicating that they wished to appeal. They wrote “Please inform the appeal system we want to lodge it in the Supreme Court.”

14.A detailed response was sent to the tenants on 22 April 2016. They were told that their email could not be accepted as an appeal and that they could not lodge an appeal in the Supreme Court. They were told of the time limit for, and procedure for, lodging an application for appeal and about the procedure for requesting an extension of time to appeal. They were told that any application for appeal had to be lodged by 9 May 2016. They were also reminded that the orders made related only to the lessor’s claim for rent and water consumption and did not deal with any claim that the tenants may have for compensation, because they had not lodged such a claim.

15.The tenants did not seek an extension of time but attempted to file an application for appeal on 25 May 2016, 16 days late. The application did not identify any grounds for appealing the decision relating to the payment of rent and water usage charges, but rather contained complaints about the tenancy.

16.The tenants were sent an email on 27 May 2016 saying that it appeared they were seeking compensation from the lessor and they should perhaps consider filing an original application for compensation instead. They were asked to indicate by 3 June whether they wished to proceed with the application for appeal or file an original application under the Residential Tenancies Act. The email correspondence was copied to the lessor’s agent. The email told the tenants that if they wished to proceed with an appeal they would first need to seek leave to appeal out of time. There was no reply.

17.On 27 June 2016 registry staff telephoned the tenants to ask for their response. Ms Bilkis said she had not received the earlier email. It was re-sent on 27 June 2016. A further email was sent on 7 July 2016 asking for a response. On 8 July 2016 Ms Bilkis replied by email indicating that she and her husband had had various issues with their health and that they would reply in the next week.

18.On 10 July 2016 the tenants sent doctors’ certificates to the tribunal and asked to be given until the second week of August 2016 to provide “our submission and information about our appeal.”

19.Directions were made on 12 July 2016 giving the tenants until 8 August 2016 to file and serve any information they wished to rely on. A hearing was listed for 11 August 2016 to consider their application. The directions and a listing notice were sent to the tenants and the lessor on 12 July 2016 and a further detailed email sent on 1 August 2016 to ensure that all parties were aware of the directions and the hearing.

20.The tenants filed and served an affidavit on 7 August 2016 which set out a number of complaints about the tenancy and various actions and inactions of the lessor. The affidavit also referred to medical conditions and other litigation matters that had taken up the tenants’ time and which were said to explain why they were not able to lodge their appeal application on time. The tenants said they were claiming $21,700 from the lessor.

21.The affidavit said that the lessor had not repaired water taps despite requests to do so and that the tenants disputed water bills paid. They wished to have the whole of the amount paid for water during the tenancy refunded to them. There was also a complaint that the rent was higher than market rent and that the lessor had refused requests to reduce the rent.

22.The affidavit said nothing about the lessor’s claim for unpaid rent – in other words, it did not identify any questions of fact or law arising from the original decision.

23.The lessor contacted the tribunal to say that he could not appear at the hearing on 11 August in person, but would be available on his mobile telephone.

24.A hearing occurred on 11 August 2016. The lessor was telephoned twice but the calls went to voicemail. A message was left but he did not return the calls. He has made no further contact about this matter.

25.At the hearing, time was spent explaining that the original decision only concerned rent arrears and unpaid water use charges, that any claim the tenants may have for compensation was separate from those things and could not be pursued through the appeal. They were told, and said they understood, that they would have to lodge an original application if they wished to pursue a claim for compensation in relation to the tenancy.

26.The tenants contended that the original order was wrong for three reasons. First, they said, the calculation of rent they had to pay was incorrect and second, they had made payments that were not recorded on the ledger. These two things could if correct be questions to be considered on appeal. The tenants said they could demonstrate that the calculations were wrong and prove that they had made payments not recorded on the ledger by producing their own records.

27.Third, they said that they should not be responsible for the whole of the charges for water use because the lessor had not repaired water leaks. This is not a ground for appeal because the tenants’ contractual obligation was to pay for water consumed. An argument that water consumption was higher because of a failure of the lessor to make repairs is a matter to be raised in a claim for compensation.

28.Orders were made giving the tenants further time until 1 September 2016 to produce the evidence they relied on for the first two contentions.

29.On 2 September 2016 the tenants filed a document that among other things set out why they say the calculation of rent set out in the lessor’s application and relied on by the original tribunal, was wrong. This is considered further below. Copies of emails between the tenants and the lessor’s agent were attached showing that there was a history of disagreement about how much rent the tenants had paid going back some months before the premises were vacated, and also complaints about failure to repair a leak or leaks. The document said that the tenants were looking for two cheque books to prove that they made payments to the lessor that were not recorded in the rent ledger. The document asked for two more weeks to provide that information.

30.No further information or documents have been provided although the following requests for further time have been received:

(a)16 September 2016 – two more weeks required because of commitments to religious festivals and other court cases;

(b)5 October 2016 - two to three more weeks required because of other litigation commitments and a large number of boxes and documents to search. Photographs showing boxes and papers were sent to support this assertion.

(c)26 October 2016 – another four weeks required because of commitments to other litigation and problems with Mr Hussain’s nomination as a candidate in the ACT election and health difficulties.

(d)30 November 2016 – another four weeks required because of severe health problems.

31.It is more than 12 months since the rental bond dispute was referred to the tribunal and eight months since the decision that the applicants wish to appeal was made.

32.Parties to proceedings are not entitled to infinite opportunities to produce material to support an application. The tribunal’s objects and principles require that matters be dealt with as quickly as is consistent with justice. Giving some further time for people to gather supporting material may well be just and reasonable, particularly when they are unwell. In this case the time given to the tenants has been very generous and more than reasonable. This has been possible to a large extent only because the lessor has not sought to be heard and has not complained of prejudice.

33.The tenants have had ample time to search boxes to look for cheque books or alternatively, to obtain copies of cheques or of account statements which are likely to be a more useful way of verifying payments made to the lessor’s agent. It is accepted that the applicants have been unwell at times and I also accept that some of the ill health described might interfere with their ability to open boxes and look through papers.

34.Many medical certificates have been provided in general terms saying that one or both have been unfit for work at different times. The tribunal has not required or asked them to work. They asked to be given time to look through their papers for cheque books. Whether they are fit for work or not is of no relevance to that task.  It is also clear that they have given no priority to this matter and priority to other things such as other litigation, and potential involvement in the ACT elections. The tribunal is not obliged to, and should not; delay its consideration of this application indefinitely.

Calculation of Rent Payable

35.In the document submitted on 2 September 2016, the tenants say that the calculations which form the basis of the tribunal’s order that rent of $2925 is owed, are wrong. The assertion is about methodology rather than the mathematics.

36.The tenants set out their calculation of rent owed by multiplying the amount of rent they were to pay each week by 52 weeks. They come up with a total rent for 12 months of $26,000 for the first year of the tenancy which they say is much less than the lessor’s calculation of rent for the same period of $27,000.

37.The comparison is not valid because the calculations do not cover the same period.

38.There are two problems with the tenants’ method of calculation. First, there is slightly more than 52 weeks in a 12 month period.  For this reason, and because rent accrues from day to day during the course of a tenancy agreement, rent owed is calculated using a daily rate for the actual dates of the relevant period.

39.Secondly, it is clear from the ledger that the rent was not increased at precisely 52 week intervals as the tenants assert. This fact is to their benefit and their assertion is difficult to understand because it is contrary to their interests.

40.The ledger shows the first payment of rent occurred on 13 October 2010 and the rent continued at a rate of $500 per week, or $71.43 per day, until it was increased on 26 October 2011 – more than 12 months later. The lessor used the daily rate and this period of 378 days, to reach the rounded-down figure of $27,000 rent due in that period.

41.The next rent increase occurred in January 2013 rather than October 2012 as the tenants seem to have calculated.

42.If the tenants’ methodology is taken to its logical conclusion they owe more rent than the lessor has claimed because on their calculation they should have been paying rent at the higher rate of $525.00 per week from the second anniversary of the commencement of the lease in October 2012 to its conclusion in September 2015. The lessor only claims rent at the daily rate equivalent of $525 per week from January 2013 to the conclusion of the tenancy.

43.I am satisfied that the lessor’s calculations, and the tribunal’s calculations relying on them, are correct and indeed, more favourable to the tenants than their own calculations. There is no arguable question of fact or of law arising from the calculation of rent.

Was rent paid but not credited?

44.The tenants say that they paid more rent than was credited to them but they have not produced evidence of that or of any discrepancy that could be said to raise some doubt about the lessor’s rent ledger. They have been given considerable time to do so. The lessor’s rent ledger is detailed and there is no prima facie basis to question its accuracy. The original tribunal was entitled to rely on it. In terms of the second principle identified in paragraph 6, there is no material on which the tribunal could exercise its discretion to extend time.

Conclusion

45.I am not satisfied there is any miscarriage of justice or any overarching reason why justice demands that leave should be granted to appeal out of time. This decision does not prevent the tenants pursuing a claim for compensation, which seems to be their primary concern.

46.The delay in attempting to file the application for appeal was initially minor and the lessor has not expressed concern about prejudice to him. Those things are noted but they are outweighed by the need for time limits to be respected, the importance of finality, the absence of any material to support the application for leave and the lack of an arguable basis for appeal.

47.The application for leave to appeal is therefore dismissed.

………………………………..

President L Crebbin

HEARING DETAILS

FILE NUMBER:

AA 32/2016

PARTIES, APPLICANTS:

Mohammad Hussain

Bazlun Bilkis

PARTIES, RESPONDENT:

Abdur Rahman

COUNSEL APPEARING, APPLICANT

N/A

COUNSEL APPEARING, RESPONDENT

N/A

SOLICITORS FOR APPLICANT

N/A

SOLICITORS FOR RESPONDENT

N/A

TRIBUNAL MEMBERS:

President L Crebbin

DATES OF HEARING:

11 August 2016