Satchithanantham v Zeaiter Corporate Holdings Pty Ltd (RLD)

[2010] NSWADTAP 30

Appeal Panel - Internal

CITATION:	Satchithanantham v Zeaiter Corporate Holdings Pty Ltd (RLD) [2010] NSWADTAP 30
PARTIES:	APPELLANT Thambiappah Satchithanantham RESPONDENTS Zeaiter Corporate Holdings Pty Ltd (1) Anthony Zeaiter (2)
FILE NUMBER:	109016
HEARING DATES:	20 April 2010
SUBMISSIONS CLOSED:	20 April 2010
EXTEMPORE DECISION DATE:	20 April 2010
DATE OF DECISION:	11 May 2010
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Interlocutory appeal – leave refused
DECISION UNDER APPEAL:	Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd, unreported
FILE NUMBER UNDER APPEAL:	085133
DATE OF DECISION UNDER APPEAL:	12/22/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
REPRESENTATION:	APPELLANT In person RESPONDENTS A Clachers, solicitor agent
ORDERS:	Appeal dismissed

ORAL REASONS, EDITED

Preliminary

1 The Appeal Panel has before it a notice of appeal filed 10 March 2010 in respect of an interlocutory decision of the Retail Leases Division of the Tribunal made 22 December 2009. Mr Satchi’s appeal challenges an order, in effect, removing him as a party to the proceedings before the Division. [The short form of Mr Satchithanantham's name is used with his approval.]

2 Under the provisions that apply to appeals, the time for the filing of an appeal expires twenty-eight days after the Tribunal gives the party oral reasons or written reasons, whichever is the later: see Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(3) (a). In this instance the written reasons were sent under cover of a letter dated 4 February 2010 and according to correspondence on the file from Mr Satchi it was received by him on 9 February 2010.

3 The appeal was lodged on 10 March and on my calculations, which have been discussed with the parties, it is one day out of time. The discretion to extend time for an appeal is given by subs 3(b). Section 113(3) provides:

(3) An appeal under this Part must be made:

(a) within 28 days after the Tribunal gives the party oral reasons or written reasons for the appealable decision (whichever is the later), or

(b) within such further time as the Appeal Panel may allow.

4 Sub-section (b) does not, I note, use the language of reasonable explanation. So it is simply a broad discretion. The language of reasonable explanation is used in relation to giving leave for the late filing of initiating applications to the Tribunal. ADT Act, s 57(1) provides:

57 Late applications to Tribunal

(1) Despite section 55 (1) (d), the Tribunal may, on application by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.

5 The second aspect of the matter is, as I have noted, that it is an interlocutory decision. It is not one of the specific items that is listed in s 24A(1) of the ADT Act, at paragraphs (a) to (h), as an ‘interlocutory function’. But it falls, I consider, within the final category listed there of ‘any other interlocutory issue before the Tribunal’ (paragraph (i)).

6 Section 113(2A) states that:

An appeal does not lie to an Appeal Panel of the Tribunal against the exercise of an interlocutory function … except by leave of the Appeal Panel.

7 So again it is a broad discretion.

8 Then there is a provision as to how the Appeal Panel is to be constituted and it is constituted appropriately today.

Consideration

9 The decision under notice is a decision that, in effect, removes Mr Satchi as the third applicant in the application before the Tribunal. The Tribunal ordered that proceedings as instituted by the third applicant be stayed by force of the Bankruptcy Act. It does not say that Mr Satchi has been removed forever from those proceedings.

10 Of course, the reason why the order is expressed in that way reflects the law governing the management of the estates of bankrupts. Once a person becomes bankrupt essentially the trustee in bankruptcy is in charge of how they spend their money and time that might involve or risk any further diminution of the assets of the estate, or expose the estate to further liabilities.

11 It seems to me on the face of it that the appeal is without any prospects of success, given the recitals that are contained in Mr Molloy’s decision. That is a relevant matter in making a decision to allow an interlocutory appeal to be pursued.

12 The interests of justice, it also seems to me, are better served by having the dispute at first instance proceed to conclusion.

13 The proceedings that Mr Satchi has been pursuing in relation to his, his wife’s and their family company’s involvement in leases of shop premises at 53 Station Street, Wentworthville are notorious in the sense that they have generated numerous applications in this Tribunal, both at first instance and on appeal. There have also been proceedings in the Supreme Court surrounding the lease and related matters (such as enforcement action by credit providers).

14 A feature of all of the litigation has been the bringing by Mr Satchi of interlocutory applications.

15 From what I have heard Mr Satchi say today, he remains aggrieved as to matters, which, in my understanding, have been the subject of final determination by this Tribunal in previous proceedings.

16 On its face there is a question as to whether the respondents (who have now been responding to this litigation for years) should be making some application at first instance in these proceedings to clarify the extent to which there are findings which either amount to res judicata or issue estoppel in respect to some of the matters that the remaining applicants seek to place in contention.

17 It may be that the respondents are inhibited in doing that, as there would be created another subset of proceedings which might well generate its own further appeal activity.

18 As regards the proceedings today, it seems to me that there is no basis for exercising the discretion given by s 113(2A) so as to permit this interlocutory appeal to proceed.

19 I have not dealt with the further problem of the appeal being out of time.

20 Ordinarily in the Tribunal I do not think there would be much asked of an appellant to explain lateness by one day. But this is not an ordinary state of affairs. We are dealing here with an experienced appellant who is very familiar with the rules and procedure that govern the Tribunal. He has not, as I have heard his submissions today, given any explanation as to how he came to be a day late with the filing. It may be that there is some miscalculation involved.

21 In this case, an extension ought not be given.

Conclusion

22 So for either of those reasons I would strike out this appeal. The first reason is that in exercise of the leave discretion that applies to interlocutory appeals, I do not think there is a basis for allowing this appeal to proceed having regard to the substance of the decision at first instance. Secondly, in any event, the appeal is late. It is not essential to this discretion that would turn on a reasonable explanation but in my view none has been given and it is not in the interests of justice to allow this particular out-of-time appeal to proceed.