Hussain v Farhmand - [2016] ACTSC 122

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hussain v Farhmand
Citation:	[2016] ACTSC 122
Hearing Date:	3 May 2016
Date last submissions received:	27 May 2016
DecisionDate:	10 June 2016
Before:	Mossop AsJ
Decision:	See [53]
Catchwords:	APPEAL – PRACTICE AND PROCEDURE – application for extension of time in which to appeal from decision of ACT Administrative Appeal Tribunal – inadequate explanation for delay – absence of transcript of proceedings at first instance means applicant cannot establish error – assumed denial of procedural fairness in Tribunal below made no difference to the outcome of application – application dismissed
Legislation Cited:	ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 86, 87 Court Procedures Rules 2006 (ACT), rr 5071(3), 5072, 5082(3)
Cases Cited:	Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56 O’Donnell v Environment Protection Authority (2012) 192 LGERA 1 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 Stead v State Government Insurance Commission (1986) 161 CLR 141
Texts Cited:	LexisNexis Butterworths, Civil Procedure ACT, vol 1 (at Service 115) [5071.5]
Parties:	Mohammad Hussain (Applicant) Sayed Ashraf Farhmand (Respondent)
Representation:	Counsel Self-represented (Applicant) Self-represented (Respondent)
Solicitors Self-represented (Applicant) Self-represented (Respondent)
File Number(s):	SCA 2 of 2016
Decision under appeal:	Tribunal: ACT Administrative Appeals Tribunal Before: W.G Stefaniak Date of Decision: 16 November 2015 Case Title: Hussain v Farhmand Citation: [2015] ACAT 91 Court File Number(s): AA 15/39, XD 15/104

MOSSOP AsJ:

Introduction

The applicant, Mohammad Hussain, has sought leave to appeal out of time against orders of the ACT Civil and Administrative Tribunal (ACAT) made on 10 August 2015 and 16 November 2015.

The application is supported by:

(a)an affidavit of Mr Hussain dated 21 September 2015;
(b)an affidavit of Mr Hussain affirmed on 28 April 2016; and
(c)an affidavit of Mr Hussain affirmed 27 May 2016.

During the course of proceedings Mr Hussain also filed affidavits of service dated 18 February 2016 and 1 March 2016.

The respondent provided a two-page outline of submissions which included the following two attachments:

(a)Attachment A: Email correspondence between Mr Farhmand and the Deputy Registrar of the ACT Civil and Administrative Tribunal relating to the listing of the proceedings before appeal President Stefaniak; and
(b)Attachment B: Reasons for decision of Appeal President Stefaniak dated 23 December 2015.

I have also had regard to the documents provided by the Registrar of the ACAT under s 87 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act).

Notwithstanding the defects in form of the material put forward by the parties I have had regard to the whole of the material in determining the application.

The terms of the application

The application for leave to appeal out of time was made in the following terms:

That the applicant be given leave to appeal out of time against the order of Ms L. Crebbin. General President & Mr W.G Stefaniak AM Appeal President of The ACT Civil & Administrative Tribunal given on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hussain v Farhmand

Details

AGLC: Hussain v Farhmand [2016] ACTSC 122
Case: [2016] ACTSC 122
Decision Date: 10 June 2016

CaseChat Overview and Summary

In the case of Hussain v Farhmand, the applicant sought an extension of time to appeal a decision made by the ACT Administrative Appeals Tribunal (AAT). The primary dispute centered on the applicant's request for additional time to lodge an appeal against the AAT's decision, which was denied. The Court of Appeal was tasked with determining whether the applicant's reasons for the delay were sufficient and whether the absence of a transcript of the original proceedings at the AAT affected the ability to establish any error in the AAT's decision.

The key legal issue was whether the applicant's explanation for the delay in lodging the appeal was adequate. Additionally, the court needed to consider whether the lack of a transcript of the proceedings at the AAT impaired the applicant's ability to demonstrate any error in the AAT's decision. The applicant argued that the absence of a transcript did not impede the identification of errors, but the court found the applicant's reasons for delay to be inadequate. The court also noted that the assumed procedural unfairness in the AAT's process did not alter the outcome of the application.

The Court of Appeal found that the applicant's explanation for the delay in filing the appeal was insufficient. The absence of a transcript of the AAT proceedings meant that the applicant could not substantiate their claim of error in the AAT's decision. Even if there had been procedural unfairness in the AAT's process, it did not affect the outcome of the application. Therefore, the application for an extension of time to appeal was dismissed. As a result, the appeal against the AAT's decision was not allowed.

Orders

Orders of the court

See [53]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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