Superal-Wallace v Indypendynt Pty Ltd

[2017] ACTSC 8

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Superal-Wallace v Indypendynt Pty Ltd

Citation:

[2017] ACTSC 8

Hearing Date:

19 January 2017

DecisionDate:

19 January 2017

Before:

Elkaim J

Decision:

1.    Appeal dismissed.

2.   No order as to costs.

Catchwords:

JURISDICTION, PRACTICE AND PROCEDURE – statutory interpretation – whether right of appeal from ACAT available – whether decision of the President of ACAT is a decision of an appeal tribunal or a tribunal – definition of ‘appeal tribunal’

Legislation Cited:

ACT Civil and Administrative Tribunal Act 2008 (ACT), s 86

Cases Cited:

Legal Practitioner v Law Society of the ACT [2016] ACTSC 203

Parties:

Ma Lily Superal-Wallace (Appellant)

Indypendynt Pty Ltd (First Respondent)

National Warranty Company Pty Ltd (Second Respondent)

Australian Capital Territory Civil and Administrative Tribunal (Third Respondent)

Representation:

Counsel

Self-represented (Appellant)

Jeffrey Silk (First Respondent)

Solicitors

Self-represented (Appellant)

Jeffrey Silk Barrister and Solicitor (Respondents)

File Number:

SCA 2 of 2017

Decision under appeal:

Court:  Australian Capital Territory Civil and   Administrative Tribunal

Before:  President Linda Crebbin

Date of Decision:         13 December 2016

Case Title:  Superal-Wallace v Indypendynt Pty Ltd & Anor (Appeal)

Citation: [2016] ACAT 144

ELKAIM J:

1. On 5 January 2017 the applicant filed an application for leave to appeal from decisions made in the ACT Civil and Administrative Tribunal (ACAT). The history of the matter is fairly lengthy but the following, are the important dates. On 30 September 2013 the applicant purchased a Renault Scenic motor vehicle from the first respondent. That vehicle carried with it an extended warranty provided by the second respondent.

1. On 12 September 2014 the applicant lodged a complaint in ACAT because of problems that had arisen almost immediately concerning the motor vehicle. I will not detail all of those problems here because they are comprehensively set out in the various documents including the applicant's affidavit and the decisions made in ACAT.

1. On 4 November 2014 the application was discontinued. However, because problems continued to occur, including what seemed to the applicant to be a very dangerous fault with the motor vehicle, a second application was filed on 6 November 2015.  That application came on for hearing before Senior Member Robinson on 21 September 2016. The application was dismissed.

1. The applicant was unhappy with that decision and lodged an appeal. Unfortunately the appeal was lodged out of time. That led to a decision of the President of ACAT dismissing the application for leave to appeal out of time. That occurred on 13 December 2016.

1. The applicant, as I have said, has now filed an application in this court for leave to appeal. It is clear from her documents, including her application and her affidavit, that the decisions from which she seeks leave to appeal are the decision of Senior Member Robinson and the decision of the President.

1. An appeal to this court from a decision of ACAT falls under s 86 of the ACT Civil and Administrative Tribunal ACT 2008 (ACT). Upon reading the applicant's documents it seemed to me that she faced a significant hurdle arising from the decision that I gave in this court in Legal Practitioner v Law Society of the ACT [2016] ACTSC 203 (Legal Practitioner).

1. At the commencement of the hearing I provided her with a copy of the decision and the relevant legislation and gave her some time to consider this material.

1. The effect of the above decision is that a person does not have a right of appeal arising from s 86 unless the appeal is from a decision of the Appeal Tribunal at ACAT. It is clear that the decision of Senior Member Robinson was not a decision of the Appeal Tribunal. That leaves the decision of the President. This case has precisely the same background to that which occurred in the Legal Practitioner case and as I explained in that case, a decision of the President on an application for leave to appeal out of time is not a decision of the Appeal Tribunal. That means, as was the case in the Legal Practitioner litigation, that this applicant does not have a right to appeal under s 86. That being so it must follow that this application must be dismissed.

1. Mr Silk, who appears on behalf of the first respondent, has submitted that my earlier decision is applicable and he has the support in that submission of the second respondent, although the second respondent did not appear today.  Mr Silk did, however, contact the second respondent and informed me that that was the second respondent's position.

1. As far as the third respondent is concerned, that is ACAT itself, although there is no formal correspondence to that effect I have assumed the third respondent submits to the orders of the court. That is consistent with the third respondent having provided the court with the decisions of the tribunal and transcripts of proceedings.

1. I wish to stress that this decision is not a decision on whether this motor vehicle was roadworthy. It is not a decision on whether or not it was ever repaired properly. This is simply a decision on the technical capacity of this applicant to bring an appeal to this court under s 86. As I have said, it is quite clear that this right does not exist. Accordingly, the appeal is dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate: Philippa Swayn

Date: 20 January 2017