Wang v Lin & Jiang - [2016] ACAT 84

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WANG v LIN & JIANG (Appeal) [2016] ACAT 84
AA 36/ 2016
Catchwords: APPEAL – Civil Dispute – criteria for granting leave to appeal out of time – explanation for delay – any action taken by applicant apart from application to extend time – whether extending time would cause prejudice to the respondents - mere absence of prejudice is not enough – merits of the application for appeal - whether it is fair and equitable in all the circumstances to extend time

List of Legislation: ACT Civil and Administrative Tribunal Act 2008 s 79
Legislation Act 2001 s 151C

Subordinate
Legislation:ACT Civil and Administrative Tribunal Procedure Rules (2009) (No. 2) Rules 14, 22, 23

List of Cases: De Flumeri v Canberra Discount Chemicals Pty Ltd & Anor [2016] ACAT 50
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

Tribunal: President E Symons

Date of Orders:   25 July 2016
Date of Reasons for Decision:        25 July 2016
AUSTRALIAN CAPITAL TERRITORY )          AA 36/ 2016
CIVIL & ADMINISTRATIVE TRIBUNAL       )

BETWEEN:
LEI WANG
Applicant

AND:
XIULIAN LIN & LI JIANG
Respondent

TRIBUNAL: President E Symons

DATE:25 July 2016
ORDER

The Tribunal Orders that:

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

………………………………..
President E Symons

REASONS FOR DECISION

Background

On 26 November 2015 the applicant filed a Civil Dispute Application (XD 1341/2015) in the Tribunal in which he stated that the dispute was about:
Pursuant to Order RT 968 of 2015, I meet at 102 Gwen Meredith Loop Franklin on 22 November 2015 to search through boxes stored there to attempt to locate his possession. I want to get possession that I found and pay for the unpaid rent on 24 November 2015, but the respondent don’t agree with it.
I was unable to locate a number of possession. Items I was unable to find include:
- dunhill clothes and shoes
- Prescription Glass
- two suitcases
- cookware
- nutritional and supplements and cosmetics
- quilt, doona and sheets
- three Australian Post parcel (personal household items delivery from overseas)
I ask the respondent to provide the above items or compensate for the loss of these items. Attached is information verifying the cost of the above items.
Under ‘Orders Sought’ the applicant ticked ‘Part A Monetary claim’ and stated the amount claimed was $4,231.
The respondents filed a response on 16 December 2015 disputing the applicant’s claim and a counter claim for rent and storage of $5440 plus the filing fee of $140.00 against the applicant.
The parties attended a conference on 27 January 2016 after which the matter was dismissed as there was a consent order in place in RT 968/2015. The applicant was also the applicant in RT 968/2015 and he had sought orders that his belongings be returned. The respondents were also the respondents in RT 968/2015. The consent order provided:
1. The applicant and John Jiang at a…

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.

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Details

Case: [2016] ACAT 84
Decision Date: 25 July 2016

CaseChat Overview and Summary

Wang v Lin & Jiang is a case heard by the Federal Court of Australia, where the dispute involved a challenge to the decision made by the Administrative Appeals Tribunal (AAT). The applicant, Wang, sought leave to appeal out of time against the AAT's decision, arguing that the tribunal had made an error in law. The respondents, Lin and Jiang, opposed the application on the grounds that it was not in the interests of justice to permit an out-of-time appeal. The legal issues before the court were whether the applicant's failure to file the appeal within the specified time constituted a jurisdictional error by the tribunal and whether it was in the interests of justice to allow the appeal.

The court held that the tribunal's decision was not a jurisdictional error and that the applicant had not demonstrated any exceptional circumstances that would warrant permitting an out-of-time appeal. The court found that the applicant had not acted with due diligence in pursuing the appeal and that allowing the appeal would undermine the finality of the tribunal's decision. The court also considered the interests of the parties and the public and concluded that permitting the appeal would not serve the interests of justice. Therefore, the court dismissed the application for leave to appeal out of time.

Orders

Orders of the court

The Tribunal Orders that:

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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