Hussain v Farhmand
[2016] ACTSC 122
•10 June 2016
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 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 10 August 2015 & 16 November 2015.
I mentioned the whole history of the claim and for my being out of time in my affidavit dated 21 September 2015.
I am seeking my leave to appeal application be grant.
The decisions of the Tribunal
The proceedings in ACAT involved a claim by the respondent for wages due to be paid to him as a result of being engaged by the applicant to work as a taxi driver from July 2014 to December 2014. He claimed that he was underpaid for a period from 5 September 2014 until 15 October 2014 and that when he stopped driving the applicant’s taxi on 25 December 2014 the applicant did not pay him the amounts due to him for work during December. His claim was for $1788.90. The originating process (“Debt Application Civil Dispute”) is dated 3 February 2015. The response filed by the applicant on 13 May 2015 was: “Applicant’s claim is not true, I am denying his all claims”.
The proceedings were listed before the Tribunal on 13 July 2015. The respondent appeared. The applicant did not appear. The proceedings were adjourned until 10 August 2015.
The transcript of the proceedings before General President Crebbin on 10 August 2015 was not in evidence. This is a point which I will return to below. However, it appears that the applicant’s contention was that the contract was not with him but instead with a company that he controlled, MM International (Australia) Pty Ltd.
On 10 August 2015, General President Crebbin ordered that:
Judgment for the applicant against the respondent in the total sum of $1,923.90 being the amount of the claim of $1,788.90 plus the filing fee for this application of $135.00.
The respondent must pay the total sum of $1,923.90 to the applicant by cheque or money order made payable to the applicant and sent to his home address of 231/41 Chandler Street, Belconnen ACT 2617.
The judgment sum is to be paid to the applicant by close of business on 25 August 2015.
Following that decision, Mr Hussain attempted to appeal to the Supreme Court, but could not do so because an appeal only lay against a decision of the Appeal Tribunal. He then applied for leave to appeal out of time. Appeal President Stefaniak dealt with that application on 16 November 2015. On that date Appeal President Stefaniak ordered that the “Application for leave to Appeal out of time dismissed.”
While Appeal President Stefaniak made orders on 16 November 2015 and those orders were notified to the parties by email on 17 November 2015, he also published reasons for his decision on 23 December 2015.
In those reasons Appeal President Stefaniak identified the following chronology:
(a)on 10 August 2015 General President Crebbin made orders;
(b)on 25 August 2015 the applicant lodged an appeal with the ACT Supreme Court but was advised that he should lodge an appeal with the ACAT;
(c)on 21 September 2015 (some two weeks out of time) the applicant lodged his application for leave to appeal out of time with ACAT;
(d)in September 2015 the applicant advised the Registry of the Tribunal that he could not attend a hearing until after 25 November 2015 and not on a Friday;
(e)on 16 October 2015 a notice of hearing on the request for an extension of time to appeal was sent to the parties identifying the 16 November 2015 as the date for the hearing of the application for leave to appeal out of time;
(f)no objection was raised to be listing on 16 November 2015;
(g)the applicant did not attend on 16 November 2015 and when the matter was listed (9 am) or at any time prior to 11:30 am.
Appeal President Stefaniak also identified the fact that the applicant was an experienced litigant with over 61 matters listed in his name before ACAT and previous tribunals and 29 listed in the name of his company, MM International (Australia) Pty Ltd.
As to the test to be applied in relation to an application for leave to appeal out of time, Appeal President Stefaniak said:
if an appellant has a good reason for appealing out of time and if he has a case that should be put to hearing as a result of the appeal points he raises (and it does not have to be a particularly strong case that looks like a likely winner, just a case that deserves a hearing) then an application for an out of time appeal may be accepted, especially if it is only a few weeks out… of time.
The substantive reason for refusing leave to appeal out of time appears to have been the lack of demonstrated merit in any appeal. At [15] Appeal President Stefaniak said:
the evidence before President Crebbin and the additional evidence in the form of the cheque before me combined with the lack of evidence by the appellant convinces me that there appears to be no grounds for appeal as there is no evidence brought to assist the appellant’s assertions. Whatever merit he may gain from appealing in time to the Supreme Court and then being out of time to appeal to ACAT is wiped out by the apparent lack of merit in his case.
The statutory provisions that give rise to an appeal
Section 86 of the ACAT Act provides a right to appeal a decision of the Tribunal.
86 Appeals to Supreme Court
(1) A party to an application, other than an application mentioned in subsection (2), for an appeal may appeal to the Supreme Court on a question of fact or law from—
(a) a decision of the appeal tribunal; or
(b) if the appeal president dismissed the appeal under section 80—the original decision of the tribunal; or
(c) if the appeal president decides not to deal with the appeal under section 85—the original decision of the tribunal.
(2)A party to an application in relation to a review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005 may appeal to the Supreme Court on a question of law from the original decision of the tribunal.
(3) However, the appeal may be brought only with the Supreme Court’s leave.
As there is no entitlement to appeal in relation to the decision of any entity other than the Appeal Tribunal, the present application is incompetent in so far as it seeks leave to appeal from the decision of General President Crebbin.
As the Appeal President did not act under ss 80 or 85 of the ACAT Act, the only relevant provision is s 86(1)(a). Therefore the capacity to appeal is limited to a decision of the Appeal Tribunal and requires leave of the Supreme Court.
An application for leave to appeal under s 86(3) of the ACAT Act is regulated by the Court Procedures Rules 2006 (ACT) (CPR).
Rule 5072 requires an application for leave to appeal to be made “not later than 28 days after the day the order appealed from is made, or not later than any further time allowed by the court”.
The applicant did not file his application for leave to appeal within 28 days of Mr Stefaniak’s decision. That period ended on 15 December 2015. His application was filed on 27 January 2016. He therefore was out of time. I note that the application was stamped as first lodged on 8 January 2016 and there is a possibility that r 6145 required that it be treated as filed on that date. For the purposes of this application I will adopt the position most favourable to the applicant namely that notwithstanding that stamping of the document, it should be treated as having been filed on 8 January 2016 three and a half weeks outside the time permitted under the CPR.
Rules 5071(3) and 5082(3) permit an application for leave to appeal and an application for leave to appeal out of time to be made by a single application.
The identified grounds for an extension of time
Mr Hussain did file along with his application for leave to appeal out of time a draft notice of appeal. Those portions of the draft Notice of Appeal, filed on 27 January 2016, relating to the proceedings before the Appeal Tribunal were as follows:
...
I received email from the ACT Supreme Court around end of August 2015 mentioning that I have to logde [sic] the appeal first to the ACAT for the matter.
I then lodged my application to the ACAT for Appeal from an ACAT decision on 21 September 2015. Copy Attached marked as ‘B’.
I received an email from the ACAT on 17 November 2015 mentioning that there was a final dicision [sic] has been made and it was dismissed and the file closed at ACAT. Email copy attached marked as ‘C’.
I never knew the matter was before the ACAT on 16 November 2015.
The appellant will seek to put further evidence before the Court.
I am not a party of this proceeding and I have that proof. I will provide in due course that evidence.
The applicant’s affidavit, affirmed 28 April 2016, stated:
...
I lodged this claim to the ACT Supreme Court on 8 January 2016. After the ACAT made decision on 16 November 2015
I received my appeal of appeal form from ACT Supreme Court re stamped date 27 January 2016.
There are some unknown factors plyed [sic] in this matter I am not sure the reason of it.
The application for leave to appeal out of time set a date by the court on 31 March 2016 at 2.30 pm. copy attached marked as ‘K’.
I received re-stamped lodging dated 27 January 2016 and the time changed there from 31 March 2016 2.30 pm to 10 February 2016 at 9.30 am. Copy attached marked as ‘L’.
I am not sure what is the background reason of the date changing of proceeding and instead of before the Registrar it was before ASJ Mossop.
On 10 February 2016 I was in Canberra Hospital for my heart related test purpose and all the medical certificates hospital letters was before the court but again I received order as the matter dealt without me.
I am seeking the out of time be granted and my appeal be lodged to this court.
I am seeking justice.
No one should not get punished for the crime the person did not commit.
...
Those portions of the draft Notice of Appeal, relating to the decision of General President Crebbin were as follows:
The grounds of the appeal are:
The General President of the ACT Civil & Administrative Tribunal made the order on 10 August 2015 was wrong, incorrect and abusive.
I mentioned that I am not a party but the member ignored and does not take into account this factor which is out of law.
Without being a party how come any law could provide punishment to an innocent individual.
In this tribunal when ever I lodged any claim, all the time I have been told that the case is mine and I have to proof my case before the tribunal.
This current matter XD 104 of 2015 was totally different, this time I was respondent even I was not a party but the tribunal asked me to proof the claim. It was intentional, incorrect and favoritism [sic].
Legal system should not be biased but impartial and neutral to every one. Legal system should not be abusive and should be in a practice of rule of law for every one.
It was my statement to the Member the matter should be strike out as there was no cause of action and I was not a party. She failed to accept that.
There was some more favoritism [sic] on the Subpoena matter of this proceeding.
Any court always allow to the both parties to inspect the Subpoena file and to make copy of that file to understand the matter and to submit to the court their view on it. This is first time this tribunal deny to do that, I paid for the Subpoena and I could not had the right to view the file properly and copy of it with my own cost. It was outrages. abuse of the legal system.
If any judgment order made normally there is a time limit as for the appeal and the limit of time is 28 days but this Member made the order that I have to pay within 14 days.
It never happened to any of my cases before the tribunal, I always had to wait for 28 days. Legal system should not be act such a discriminatory or unfair, unjust way. It should be equal for every body before the tribunal. Law is equal for every one and that should be dealt with the tribunal. The Member failed to provide that fairness.
My appeal lodged in the ACAT on 21 September 2015 after I lodged to ACT Supreme Court on 25 August 2015 and later has been advised by the ACT Supreme Court that I have lodge my appeal in the ACAT first that appeal also was not properly delt by the Appeal President.
The Appeal President always provided me abusive and wrong dicision [sic] all the matter I had before him.
The Appeal president never informed me neither the Tribunal that the matter was before the Appeal President on 16 November 2015.
Without heard my evidence or story how he determined my matter and dismissed that matter.
It was intentional and wrong and abusive.
The Appeal President failed to deliver nutural [sic] justice to an individual who was not a party of the proceedings at all.
It was abuse of legal system.
Mr Hussain’s affidavit of 28 April 2016 further provides:
The respondent of this proceeding lodge his claim in the ACAT on 3 February 2015. I lodged my defense [sic] on 13 March 2015 and mentioned the facts that I was and not a party of the claim respondent lodged his claim against me. Copy Attached marked as ‘C’.
The respondent of this proceedings was a driver of a taxi. The number plate of that taxi was and is TX 457.
The taxi plate and the vehicle not belongs to my name at any time since the plate and the vehicle running business in the ACT.
The taxi plate and vehicle owner is separate and different person then [sic] me. Copy attached of evidence ownership marked as ‘D’.
I mentioned to the ACAT several times this true facts but the ACAT Member’s failed to acknowledge that facts and they failed to deliver fair justice to me. The ACAT never asked the applicant of their proceeding to bring evidence about me being a party.
No one should not punished for the crime which the person never commit.
I lodged my Appeal in the Supreme Court first time on 25 August 2015.
I received email from the ACT Supreme Court and been advised that I have to come through ACAT appeal first. Copy attached of the email marked as ‘E’.
I lodged my leave to appeal out of time in the ACAT on 21 September 2015. copy attached marked as ‘F’.
I never received any letter or email about the appeal hearing date but received the order made on 16 November 2015. Copy attached marked as ‘G’.
I sent email to the Tribunal in 7 July 2015 ans [sic] 12 July 2015 about my situation and asked some question to the respondent through the Tribunal. Copy Attached marked as ‘H’.
I never received any response of my questions.
The respondent of this proceeding failed to provide his relevant documents as per the RTA requirements, ne [sic] never produced this to the owner of taxi as a must requirement. Copy attached marked as ‘I’.
The taxi business our my family business and our company deals all the payment transaction of it and pay the drivers payment, as the drivers always wanted cash payment for no record and do not want to pay tax, GST but company has to keep records of payment that is the reason of involvement of company that does not mean that the taxi TX 457 ownership is mine or my company’s.
The respondent abused me in public. He did video recording of my car. I lodged Subpoena but the Tribunal ignored that or not take into account seriously. Copy of the Subpoena attached marked as ‘J’.
...
No one should not get punished for the crime the person did not commit.
I am seeking my compensation of harassment and all the costs with interests.
Summary
In summary, the position, so far as I can discern it, is:
(a)the General President made a decision adverse to Mr Hussain on 10 August 2015;
(b)Mr Hussain attempted to appeal from that decision to the Supreme Court but was unable to do so because of the scope of s 86 of the ACAT Act;
(c)Mr Hussain then applied for leave to appeal out of time and at the same time notified the Tribunal that he was available after 25 November 2015 and requested the appeal not be listed on a Friday although no explanation for availability only after 25 November was given;
(d)Mr Hussain was given notice of the listing by email on 16 October 2015;
(e)the application for leave to appeal out of time was heard and dismissed by Appeal President Stefaniak on 16 November 2015;
(f)Mr Hussain was provided with a copy of the orders made by the Tribunal by email on 17 November 2015;
(g)Appeal President Stefaniak published reasons for the decision on 23 December 2015 and sent by letter of that date to Mr Hussain;
(h)Mr Hussain attempted to file his application for leave to appeal out of time on 8 January 2016 and the document was accepted for filing on 27 January 2016.
Procedural history of the application
The applications were first listed before me in this Court on 10 February 2016. Neither the applicant nor the respondent appeared. There was no notice of intention to respond on the court file. There was also no evidence that either the application for leave to appeal out of time or the affidavit in support of that application had been served. I ordered that the applicant file an affidavit of service and that the Registrar notify the applicant of the directions made. The proceedings were adjourned to 19 February 2016.
On 19 February 2016, Ms Bilkis, Mr Hussain’s wife, appeared on Mr Hussain's behalf. The respondent did not appear. Despite the orders made on 10 February 2016, an affidavit of service of the application, affidavit in support and draft notice of appeal had not been filed. I again ordered that the applicant file an affidavit of service relating to the application, affidavit in support and draft notice of appeal. I also directed that the Registrar give notice of the terms of the orders made on 19 February 2016 by email to the applicant and that the applicant then serve a copy of the Registrar’s email on the respondent by 3 March 2016. The applications were listed for mention on 21 April 2016 and for hearing on 3 May 2016.
At the hearing on 19 February 2016 I told Ms Bilkis that the applicant would have great difficulty in achieving a grant of leave to appeal out of time unless there was evidence before the Court as to what happened before the ACAT at first instance and in the Appeal Tribunal.
On 21 April 2016, Ms Bilkis again appeared on behalf of the applicant and Mr Farhmand appeared. He was unrepresented. I noted that the applicant had yet to file any evidence as to what had happened before the ACAT at first instance and in the Appeal Tribunal and that the applicant would have great difficulty in achieving a grant of leave to appeal out of time unless that evidence was before the Court.
On 2 May 2016, Registry received an email from Mrs Hussain advising that the applicant had been advised by his general practitioner “not to attain [sic] any litigation matter which would provide him more stress and anxiety. At present he is very stressful and not well.” The email went on to request that:
Please ask the relevant court about 2-3 weeks adjourn and the respondent would not suffer any prejudice but the applicant is suffering as he sued wrongly while he was not a party at all.
In a separate email of the same date, Mrs Hussain attached medical certificates in support of the request for an adjournment so that solicitors be engaged. In the light of the proximity of the hearing date I did not vacate the hearing.
On 3 May 2016, the respondent appeared for the hearing of the applications. Neither the applicant nor Ms Bilkis, who had previously attended on his behalf, appeared. I was not satisfied that the circumstances warranted an adjournment of the application generally and considered that the application could be fairly dealt with by giving the applicant a further opportunity to provide written submissions. I took as having been read in support of the application for leave to appeal the affidavits of the applicant dated 21 September 2015 and 28 April 2016. The second of these affidavits had not yet been served on the respondent and therefore the respondent was provided with copies of that affidavit as well as correspondence between the applicant and the Court registry. I ordered that the applicant file and serve any further written submissions limited to not more than 7 pages by 27 May 2016. On 27 May 2016 the applicant filed an affidavit containing further submissions purportedly in accordance with that order.
At no point was any order made staying the operation or enforcement of the Tribunal’s orders.
The test for a grant of an extension of time
In Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56, Refshauge J summarised the relevant principles for a grant of an extension of time. At [20] – [23] his Honour said:
20. I have set out in R v Meyboom (2012) 256 FLR 450 at 458-62; [48]-[76], the principles upon which a court should act in considering whether to grant leave to appeal after the expiry of the time limited for appeal.
21. The principles may be summarised as follows:
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.
I apply those principles to the present application.
The factors in favour of an extension of time in which to file the application for leave to appeal are:
(a)the provision of reasons by Appeal President Stefaniak on 23 December 2015 well after the making of orders on 16 November 2015;
(b)the relative shortness of the extension of time required;
(c)the fact that the applicant is unrepresented and not legally qualified.
Against the granting of an extension of time are:
(a)the fact that notice of the decision was given immediately after it was made;
(b)the prima facie importance of time limits for the purposes of the orderly conduct and finality of proceedings;
(c)the relative modesty of the amount in contention;
(d)the fact that the respondent will continue to suffer prejudice for as long as the orders of the Tribunal remain under challenge; and
(e)the absence of any good reason why the applicant did not make an application for leave to appeal within the permitted time.
Balancing these factors, the case is not a strong one for an extension of time. There is no adequate explanation for the delay in making an application for leave to appeal. However, it is necessary to take into account the merits of the application for leave. I do that below. When that is taken into account it is clear that an extension of time should be refused.
The test for a grant of leave to appeal
In determining the application for leave to appeal I adopt the articulation of approach to be applied in determining such applications set out by Penfold J in O’Donnell v Environment Protection Authority (2012) 192 LGERA 1 at [78]. While there have been different formulations of the factors that must be taken into account, including those cases referred to at Civil Procedure ACT (at Service 115) [5071.5], I consider that the formulation of Penfold J encapsulates the considerations. Her Honour made it clear that the leave requirement was designed to provide a filter on those matters which might be subject to an appeal to this Court. Adapting her Honour’s formulation of the test to the circumstances of this case, the matters I need to consider in deciding whether to give leave to appeal as a prerequisite to the exercise of a statutorily-limited appeal right are: (a) whether a question of fact or law has been identified; (b) whether there is at least an arguable case that the error, identified by reference to the question of fact or law, exists; and (c) whether the correct resolution of that question would result in an outcome more favourable to the applicant.
Consideration of whether or not to grant leave to appeal
Questions of fact and law have not been clearly identified by the applicant in the material that he has filed. However, the two issues that appear to me to be central to the applicant’s application for leave to appeal are:
(a)whether or not he was denied procedural fairness during the course of the appeal proceedings before Appeal President Stefaniak; and
(b)whether or not any such denial of procedural fairness might have affected the outcome of those proceedings.
The applicant’s affidavit evidence put on in support of his application is that the applicant was unaware of the listing of the proceedings for hearing on 16 November 2015. I accept that notice of that listing was given by email to him. There is no explanation in the evidence before me as to why he would not have received an email sent by the Tribunal. It was the email address that he had notified to the Tribunal and by which he was successfully notified of the terms of the orders made. He had previously notified the Tribunal that the proceedings should not be listed until after 25 November 2015 although once again the reason for making that request is not clear. He was, however, not cross-examined on his evidence in relation to not having received notice of the hearing.
I will deal with the matter on the basis most favourable to the applicant namely that he was unaware of the hearing date on 16 November 2015 and hence was prima facie denied procedural fairness by the making of orders adverse to his claim on that date.
While that would normally warrant a grant of leave to appeal from the decision, that will not be the case if the Court can affirmatively conclude that the denial of procedural fairness made no difference to the outcome of the proceedings: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146; Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [4], [131], [211].
The primary reason why Appeal President Stefaniak denied an extension of time was because the absence of merit of any challenge to the decision of General President Crebbin. The applicant was in a position to put forward in this Court any matter which he would have put before Appeal President Stefaniak had he attended the hearing on 16 November 2015. In particular the applicant has had the opportunity to put on any evidence which he would wish to in order to demonstrate that a question of fact or law was wrongly determined by General President Crebbin.
As I have pointed out above, notwithstanding being advised of its importance for the application on a number of occasions during the preliminary stages of these proceedings, the transcript of the proceedings before General President Crebbin was not put into evidence before me and not otherwise available. As I foreshadowed, this makes it particularly difficult for the applicant to succeed in establishing that there was any arguable error on the part of General President Crebbin. That is because there is no formal record of the course of evidence before the Tribunal or of General President Crebbin’s reasons for her orders, including any findings of fact.
The essential question before General President Crebbin appeared to be whether the respondent had entered into a contract with the applicant or whether his contract was with the applicant’s company, MM International (Australia) Pty Ltd. That appears to me to be a finding of fact. In the absence of the transcript of proceedings before General President Crebbin I cannot be satisfied that there is an arguable basis for contending that the question was wrongly decided in the light of the evidence that was before the Tribunal or in the light of any additional evidence identified subsequently. Because of the absence of the transcript, the applicant would have been in the same position before the Appeal Tribunal in so far as he sought to demonstrate error on the part of the General President.
For these reasons I conclude that whatever view might have been taken as to the merits of the applicant’s explanation for the delay in filing the appeal to the Appeal Tribunal, any denial of procedural fairness made no difference the outcome of the proceedings because he would have been unable to establish an arguable basis for challenging the decision of the General President.
Result
Because of the lack of merit in any appeal, even if I had extended the time in which the application for leave to appeal could be filed I would have refused leave to appeal. The lack of merit in the appeal combined with the other factors to which I have referred above makes it clear that an extension of time in which to make the application for leave should be refused. It is therefore appropriate to dismiss the application.
Orders
The orders of the Court are:
1. The application for leave to appeal out of time dated 4 January 2016 is dismissed.
2. The applicant is to pay the respondent’s costs of the proceedings.
3. The Registrar provide notice of the terms of these orders to the Registrar of the ACT Civil and Administrative Tribunal.
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 10 June 2016 |
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Amendments
22 June 2016 Correct letter-numbered lists to restart at “(a)” Paragraphs: [4], [14], [29],
[40], [41], [44]
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4
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