Lommerse v Succar [2018] NSWCATAP 77

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lommerse v Succar [2018] NSWCATAP 77 Hearing dates: 13 March 2018 Date of orders: 13 March 2018 Decision date: 13 March 2018 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member G Sarginson, Senior Member Decision: 1. Appeal dismissed.

2. Each party to pay his and her own costs of the appeal. Catchwords: APPEAL – general principles – no appearance by appellant – dismissal

APPEAL – general principles - interference with discretion of tribunal below – no question of principle Legislation Cited: Civil and Administrative Tribunal Act (No 2) 2013 (NSW), s 55 Cases Cited: Bobolas v Waverley Council [2016] NSWCA 139 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: Nil Category: Principal judgment Parties: Paul Lommerse (Appellant) Louisa Succar (Respondent) Representation: Appellant (no appearance) Respondent (self-represented) File Number(s): AP 18/00792 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 16 November 2017 Before: M Eftimiou, General Member File Number(s): GEN 17/43878

REASONS FOR DECISION 1. This is an appeal from a decision of the Tribunal dated 16 November 2017 refusing to set aside an earlier decision of the Tribunal dated 12 October 2017. 2. On the day of the hearing of this appeal we ordered that the appeal be dismissed, and that each party was to pay his and her own costs of the appeal. We said we would subsequently deliver our reasons for those orders. These are those reasons.

Background 1. In 2016, the respondent contracted with the appellant for the appellant to supply materials for, and to build, a shed. 2. The appellant purported to do so but did not supply all of the materials required (amongst other complaints). 3. The respondent therefore commenced proceedings against the appellant in the Tribunal. 4. On 21 June 2017, and with the appellant's consent, the Tribunal made orders requiring the appellant to provide certain specified materials to the respondent by 9 August 2017. 5. The respondent said that the appellant failed to comply with those orders. 6. The respondent therefore sought to renew her proceedings in the Tribunal against the appellant. The Tribunal fixed the date of 12 October 2017 for the hearing of the respondent's application to renew her proceedings. 7. On 10 October 2017, the appellant sought an adjournment of the 12 October hearing date on the basis that he could not attend the hearing because he had to vacate his residential premises. That application was refused. 8. On 11 October 2017, the appellant made a further application to adjourn the 12 October hearing date. On this occasion he said that he could not attend the hearing because all his staff were ill or on annual leave. That application was refused. 9. On 12 October 2017, the hearing of the respondent's application to renew her proceedings against the appellant took place. The appellant did not attend the hearing. The Tribunal was satisfied of all relevant matters, granted leave to the respondent to renew her proceedings, and ordered the appellant to pay the respondent $10,504 immediately. 10. On 13 October 2017, the appellant filed an application to set aside that decision of the Tribunal. In that application he said that he had not attended the hearing on 12 October 2017 because he was moving shop and all his staff were off. In his application the appellant said he was not the correct respondent to the original application (he said it was a company that contracted with the respondent, and not him personally), and, somewhat inconsistently with that assertion, said that he (not the company) had complied with the orders made on 21 June 2017 (and to which the appellant consented). 11. The hearing of the appellant's application to set aside the Tribunal's decision of 12 October 2017 was set down for hearing on 16 November 2017. 12. On 14 November 2017 the appellant sought an adjournment of the 16 November hearing date on the basis that he could not attend the hearing on medical grounds and attached a doctor's certificate. That application was refused on 15 November. 13. In its reasons for refusing that adjournment application the Tribunal said that the doctor's certificate was too general to justify an adjournment, did not address the critical question why the appellant would not be able to attend at and participate in the hearing, but said the appellant could renew the application at the hearing if the doctor who signed the certificate was available to give evidence and be cross-examined in relation to the appellant's medical condition. 14. On 16 November 2017, the appellant emailed the Tribunal saying he was too unwell to attend the hearing and attached a discharge summary from Nepean Hospital. The discharge summary indicated that the appellant had been admitted to, and discharged from, Nepean Hospital on 14 November 2017. 15. That application for an adjournment was refused, and the appellant's application to set aside the Tribunal's earlier decision of 12 October 2017 was dismissed. Commendably comprehensive and concise reasons were given by the Tribunal explaining its reasons for doing so. 16. On 5 January 2018, the appellant filed a Notice of Appeal in relation to the Tribunal's decision of 16 November 2017. 17. In his Notice of Appeal, the appellant alleged, in summary, that the Tribunal had erred because: 1. the amount owed of $10,000 (sic) was false, as only $1,200 was owed; 2. all goods had been supplied; 3. he shouldn't need to pay $10,000 (sic) as that amount was not justified or reasonable; 4. a company, and not the appellant personally, was the proper respondent (because that company had contracted with the respondent, and not the appellant personally); and 5. he had been unable to attend the hearing of 16 November 2017 "due to hospitalisation". 1. The time for lodging a Notice of Appeal is within 28 days of the day on which an appellant is notified of the decision or given reasons for the decision (whichever is the later). It is unclear when the appellant was notified of the decision or given reasons for the decision although reasons for decisions are ordinarily emailed to the parties the same day, or soon thereafter. The appellant's Notice of Appeal stated that he required an extension of time for filing the Notice of Appeal. As explained in the paragraph below, the question of whether time would be extended was, in the presence of the appellant, reserved to the hearing of the appeal. In those circumstances we find that the Notice of Appeal was lodged out of time, and that (as the Notice of Appeal states) an extension of time was required. 2. On 25 January 2018, the Tribunal made certain directions in relation to the appeal, including directions that the appellant lodge with the Tribunal, and provide to the respondent by 22 February 2018, the evidence provided to the Tribunal below on which he relied, any fresh evidence on which he would seek to rely, his written submissions in support of his appeal and a sound recording or transcript of the hearing of 16 November 2017 if what was said on that occasion was being relied on. 3. On that occasion the appellant's appeal was set down for hearing on 13 March 2018. It was expressly stated that the question whether the appellant should be given an extension of time to lodge his appeal would be heard and determined on that same date by the Appeal Panel hearing the appeal. 4. The appellant says, and the Tribunal's file confirms, that the appellant was personally present at the time those directions were made. 5. The appellant subsequently lodged with the Tribunal a statutory declaration stating that he was in hospital on 15 November and was recovering for that week, the sum ordered to be paid by him to the respondent was false, the respondents had received all of the material, and the contract was with a company (and not the appellant). The appellant also lodged his emails to NCAT dated 14 November 2017 attaching the doctor's certificate (see [14] above) and 16 November 2016 attaching the discharge summary from Nepean Hospital (see [16] above). 6. Other than the statutory declaration to which we have referred, which contained little more than bare assertions, the appellant did not, in support of his appeal, lodge with the Tribunal, or provide to the respondent, any of the material referred to at [21] above. 7. On the day of the hearing of the appeal the respondent appeared in person. The matter was called three times outside the room allocated for the hearing of the appeal, but there was no appearance by or on behalf of the appellant. 8. The Appeal Panel called the mobile telephone number specified as the appellant's contact number in his Notice of Appeal. There was no answer. A voice recording said to leave a message and the call would be returned in a few minutes. A message was left for the appellant to contact the Tribunal immediately. 9. We adjourned for 15 minutes, but no return phone call was received. There was no email or other communication received by the Tribunal concerning the appellant's non-appearance at his appeal. 10. The respondent said that the appellant had, to date, paid to her about 50% of the amount specified in the Tribunal's orders of 12 October 2017.

Decision 1. At the hearing of the appeal we ordered that the appellant's appeal be dismissed. 2. First, we did so under s 55 of the Civil and Administrative Tribunal Act (No 2) 2013 (NSW) (the "NCAT Act") as the appellant had failed to appear at the hearing of his appeal. 3. Second, had we not dismissed the appeal due to the appellant's non-appearance, we would have dismissed it because it appeared the Notice of Appeal had been lodged out of time and no evidence or explanation supporting the application for an extension of time to appeal was provided. Accordingly, we were not satisfied of the existence of any relevant matter necessary to ground such an application, nor could we be satisfied that any such matter (if it existed) met the tests required for an extension of time as set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and like cases. Accordingly, as time for lodging the Notice of Appeal has not been extended, the appeal would have been dismissed on that basis. 4. Third, had we not dismissed the appeal for the two reasons identified above, we would have done so because, on the material the appellant lodged with the Tribunal on the appeal, together with the respondent's statement that the appellant had paid about 50% of the amount ordered to be paid, we were not satisfied that the Tribunal erred in law in its decision of 16 November 2017. 5. In relation to the refusal of the appellant's adjournment application, it being the exercise of a discretion, the appellant would need to have demonstrated that the Tribunal failed to take into account a relevant matter, took into account an irrelevant matter, or was a decision that no reasonable Tribunal would have made in the circumstances. 6. It does not appear to us that the Tribunal erred in any of those respects. None of the material it considered was irrelevant. There is no relevant matter which we have been able to identify which the Tribunal failed to take into account. 7. The evidence of alleged ill health, as the Tribunal below correctly held in our opinion, did not address or prove the critical question of whether, and if so why, the alleged medical condition(s) would prevent the appellant from travelling to the Tribunal and participating effectively in the Tribunal's hearing (see Bobolas v Waverley Council [2016] NSWCA 139 per McColl JA (Simpson JA and Sackville AJA agreeing) at [221]). 8. We should note that the appellant said in his Notice of Appeal that he was "in hospital when hearing (sic) was on". Other than that bald assertion, no corroborative evidence establishing that fact was provided. The discharge summary from Nepean Hospital showed that the appellant had been discharged from that hospital two days earlier. That statement is also contradicted by the appellant's other statement that he was in hospital on 15 November (and not 16 November). 9. Accordingly, we were not satisfied that the decision of the Tribunal to dismiss the appellant's adjournment application was a decision which no reasonable Tribunal would have made. In our opinion, the Tribunal's decision was correct. 10. As to the remaining assertions (at [19(1) – (4) above], no evidence (fresh or otherwise) was provided to us other than the statutory declaration and the emails referred to earlier in these reasons. Insofar as the statements made in the statutory declaration may have any evidentiary weight (we think not), leave would have been required to lead that evidence on the appeal and the respondent would need to have been given the opportunity to cross-examine the appellant on those assertions. 11. However, the appellant has not appeared, has not sought leave to rely upon his statutory declaration as evidence, and the respondent has not had the opportunity to cross-examine the appellant on the statements made in that document. Therefore, we have not taken it into account because that would be unfair to the respondent, she being denied the opportunity to challenge the statements made. 12. Further, even if we received that material and took it into consideration, in our opinion it would be insufficient to establish that the Tribunal erred in law (or fact). The appellant consented to the orders made on 21 June 2016, and so his later statements that the respondent contracted with a company, and not the appellant, are contradicted by his own consent to orders being made against him personally. 13. Further, the appellant has paid the respondents about 50% of the amount owed. Thus, his remaining assertions are contradicted by that fact of payment. 14. In all of those circumstances, and in examining the Tribunal's reasons, we can perceive no error of law (nor fact).

Costs 1. The respondent did not seek any order for costs.

Orders 1. The appeal is dismissed. 2. Each party to pay his and her own costs of the appeal.

********** ​ I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2018