Hussain v Farhmand (Appeal) - [2015] ACAT 91

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HUSSAIN v FARHMAND (Appeal) [2015] ACAT 91

AA 15/39 (XD 15/104)
Catchwords: APPEAL - civil dispute – leave to appeal out of time – request for extension of time

Tribunal: Mr W.G Stefaniak AM – Appeal President

Date of Orders: 16 November 2015
Date of Reasons for Decision: 23 December 2015

AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL )

Appeal Reference No: AA 15/39 from XD 15/104

RE:MOHAMMAD HUSSAIN
Appellant

AND:SAYED ASHFAR FARHMAND
Respondent

DIRECTIONS

Tribunal: Mr W.G. Stefaniak AM - Appeal President

Date: 16 November 2015

The Tribunal orders that:

1. Application for leave to Appeal out of time dismissed.

........Signed................................
Mr W.G. Stefaniak AM
Appeal President

REASONS FOR DECISION

This is an application for leave to appeal out of time filed by Mr Hussain (the appellant) who was the respondent in the original tribunal and Mr Farhmand, the successful applicant in the original tribunal (XD 15/104), now the respondent in this application.
After hearing from the parties on 10 August 2015, President Crebbin made the following orders:
Orders in relation to Subpoenas
1.       Noting that no documents are produced by the respondent in response to the subpoena addressed to him, the subpoena is discharged.
2.       Noting that B.N Bilkis has written to the tribunal as the Public Officer of the company, M.M International (Australia) Pty Ltd, saying that “the property is not belongs to this company” and has not produced documents in response to the subpoena addressed to the company, the subpoena is discharged .
3.       The applicant produced the following in response to the subpoena addressed to him:
(i)      a photocopy of a Visa Application Summary in relation to him and of the front of his driver’s licence, taxi authorisation and Permanent Residence Evidence card;
(ii)     the original of a video taken on his mobile phone on 12 June 2015.
In relation to the documents described at (i), the Tribunal orders that the documents may be inspected, but not copied, by the respondent.
In relation to the original video described at (ii), the Tribunal notes that the applicant says that he does not have the technology available to provide a copy of it. The video relates to service of subpoena by the applicant on the respondent. The question of service of the subpoena is not relevant to the determination of the issues in dispute in this case; The original video was therefore not viewed or considered by the Tribunal.
Orders
1.       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.
2.       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.
3.       The judgment sum is to be paid to the applicant by close of business on 25 August 2015.
The appellant and his company had not obeyed the subpoena issued in the original tribunal. He did not supply any proof to back up his claim that he did not owe the respondent any money or who did owe the money. The respondent did comply with the subpoena directed to him. President Crebbin made orders in relation to the subpoena and then the further orders as set out above.
On 25 August 2015 the appellant lodged an appeal with the ACT Supreme Court. He was subsequently told by the ACAT registry to lodge it with ACAT first. This he did on 21 September 2015, some 2 weeks out of time. It appears from the documentation and from what he has told ACAT staff that he wanted the matter dealt with by the Supreme Court as he does not like ACAT.
On 16 October 2015, a notice of the hearing on the request of the extension of time to appeal was sent out to the parties. Whilst the appellant had advised in September 2015 he could not attend a hearing of his appeal until after 25 November 2015 and not on a Friday, he did not object or raise any issues with 16 November 2015 at 9am for a preliminary hearing on leave to appeal out of time. The respondent, whilst having a problem attending on 16 November 2015 and indicating he had problems with a hearing of any appeal until after 8 December 2015 (when his second child was due to be born) did attend at 9am. On Monday 16 November 2015 the appellant did not attend, his name was called numerous times between 9am and 11:30 am. After hearing from the respondent, who indicated he did not consent to the out of time appeal and was happy with President Crebbin’s order, the respondent was allowed to leave at about 9:15am to go to his exam. The matter was stood over to 11:30am in case the appellant showed up. He did not, nor did he ring the ACAT registry to advise he could not attend.
The appellant is an experienced litigant, albeit a lay one. He has had over the years some 61 matters listed in his name before ACAT and previous tribunals and 29 listed in the name of his company M M International ( Australia ) Pty Ltd. (See the list of matters print out on the ACAT appeal file AA15/39. He had conducted appeals before ACAT and also has had several matters in the ACT Supreme Court)
The respondent is a young man who appears quite ignorant of Australian law. Apart from what is on the file for XD 15/104 and AA15/39 in this matter, he also gave oral evidence at the hearing of the application to appeal out of time that he dealt with the appellant solely in relation to using the taxi and the appellant paid him ( sometimes). The appellant would pay him by cheque in the name of M M International ( Australia ) Pty Ltd. He tendered a cheque dated 21/12/14 apparently signed by the appellant (or at least with a signature that bares a strong resemblance to the appellant’s signature on his application to appeal). He reiterated that the appellant owed him the amount set out in the judgment of President Crebbin.
As at 16 November 2015, no documentation supporting the appellant’s application for leave to appeal out of time had been received by ACAT. This Tribunal was in the same position as President Crebbin was in terms of any evidence being put forward to back up the assertions made by the appellant.
Also, the appellant did not attend to prosecute his application to appeal out of time.
After hearing from the respondent, who despite his concerns about missing an exam still attended the hearing of the application and upon perusing the files of XD 15/104 and AA15/39 I proceeded to decide the matter.
Whilst it is true to say that the closer the lodging of an out of time appeal to the 28 day period allowed (and this appeal was only 2 weeks out) the better, the granting of leave is by no means automatic. The time period is there for a purpose and certainly for self litigants it is important.
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 to of time.
In this case, whilst it is fairly clear to me that the appellant was aware of how ACAT and appeals worked as a result of his extensive experience in our jurisdiction, he clearly did not act. Without the benefit of hearing from him I cannot decide definitively whether he has a good excuse for not appealing in time.
However, one would think an aggrieved litigant would at least put on some documentation of probative value to support his out of time application. One would also assume he would turn up to prosecute his application, but regardless of this, no further evidence of anything was forthcoming from him to back up his claims. He also disobeyed a subpoena issued for the proceedings below, did not satisfy the learned General President of his defence (if there was one which is not really apparent from the evidence before the General President ) and then supplied nothing but generalised unsubstantiated comments in his notice of appeal.
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 detriment to the respondent, a young man who is studying to better himself, who has a young family and who was successful before President Crebbin far outweighs the detriment to the appellant who apparently has not obeyed a subpoena and who has not supplied any evidence to back up his appeal or to advance the matter further than from when it was in front of President Crebbin. I do not even need to touch on the fact that the appellant for whatever reason did not even turn up for his own application for leave to appeal out of time although no doubt this is a further reason for refusing his appeal. In accordance with his wishes ACAT never lists his matters on a Friday and he could have telephoned or emailed the registry if 16 November 2015 was a problem The respondent did, but attended anyway despite having an exam starting at 9:30am.
For the reasons given above leave to appeal out of time will be refused.

………………………………..
Mr W.G Stefaniak AM
Appeal President

HEARING DETAILS

FILE NUMBER:	AA15/39 (XD 15/104)
PARTIES, APPLICANT:	Mohammad Hussain
PARTIES, RESPONDENT:	Sayed Ashraf Farhmand
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	Mr W. G Stefaniak AM – Appeal President
DATES OF HEARING:	16 November 2015