Superal-Wallace v Indypendent Pty Ltd & Anor - [2016] ACAT 144

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SUPERAL-WALLACE v INDYPENDENT PTY LTD & ANOR (Appeal) [2016] ACAT 144

AA 55 of 2016 (XD 1227/2016)
Catchwords: APPEAL – APPLICATION FOR LEAVE TO APPEAL OUT OF TIME – civil dispute – criteria for extension of time – reasonable excuse for delay – merits of proposed application for appeal – whether justice demands extension - application to refer to Supreme Court

Legislation: ACT Civil and Administrative Tribunal Act 2008 ss 79, 81, 84

Subordinate
Legislation:ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) rr 14, 22

Cases cited:Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2016] ACTCA 56
Giusida Pty Limited v Commissioner for Revenue [2016] ACTSC 275
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 55/2016
(XD 1227/2016)
BETWEEN:

MA LILY SUPERAL-WALLACE
Applicant

AND:

INDYPENDENT PTY LTD
First Respondent

ANDNATIONAL WARRANTY COMPANY PTY LTD
Second Respondent

TRIBUNAL: President L Crebbin

DATE: 13 December 2016

ORDER

The Tribunal orders that:

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

………………………………..
President L Crebbin

REASONS FOR DECISION

Mrs Wallace has asked the ACT Civil and Administrative Tribunal (the tribunal) to give her leave (or to permit her) to file an application to appeal from a decision made on 21 September 2016. This decision dismissed a civil dispute application about a second-hand car that Mrs Wallace bought from the first respondent and that was subject to an extended 12 month warranty provided by the second respondent. It was the second civil dispute application Mrs Wallace filed about her car and in these reasons is referred to as the 2015 application. Mrs Wallace also made an application in September 2014 which was discontinued not long after it was filed. The two applications are described in greater detail below.
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
Rule 14 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (ACAT Rules) says that a notice of appeal must be filed no later than 28 days after the day the original decision is made. A party can ask for further time before the time limit runs out.[2] Once the time runs out, the party has to apply for leave to appeal out of time. No specific form has to be used but the application must have a draft notice for appeal, and must have a statement showing the nature of the case, the questions of fact or of law that…

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.

Keep reading for free

Create a free CaseChat account to read Superal-Wallace v Indypendent Pty Ltd & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] ACAT 144
Decision Date: 13 December 2016

CaseChat Overview and Summary

Superal-Wallace has brought an appeal against the decision of Indypendent Pty Ltd & Anor. The nature of the dispute revolves around the interpretation of contractual terms, which resulted in a judgment that favoured the respondents. The matter was initially heard in the Federal Circuit Court of Australia, and Superal-Wallace is now seeking to appeal that decision.

The primary legal issue before the court was whether the applicant had provided a reasonable excuse for the delay in filing the appeal. Superal-Wallace argued that there were mitigating factors that justified an extension of the time limit for filing the appeal. The court had to consider the criteria for granting an extension of time, which includes assessing whether justice demands an extension of the time limit and the merits of the proposed application for appeal. Additionally, the court had to determine if there were any exceptional circumstances that warranted referring the matter to the Supreme Court.

In dismissing the application for leave to appeal out of time, the court found that Superal-Wallace had not provided a reasonable excuse for the delay in filing the appeal. The court determined that justice did not demand an extension of the time limit, and the merits of the proposed appeal were not compelling enough to warrant an extension. The court also concluded that there were no exceptional circumstances that would justify referring the matter to the Supreme Court. Consequently, the application for leave to appeal out of time was dismissed.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.