Taylor v Pera [2015] NSWCATAP 169

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Taylor v Pera [2015] NSWCATAP 169 Hearing dates: 3 August 2015 Date of orders: 03 August 2015 Decision date: 12 August 2015 Jurisdiction: Appeal Panel Before: D Patten, Principal Member K Rosser, Senior Member Decision: 1. An extension of time to file an appeal in respect of proceedings MV 14/38361 is refused. 2. Both appeals are dismissed. Catchwords: Appeal – whether question of law; whether substantial miscarriage of justice Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: Nil Category: Principal judgment Parties: Phillip Charles Taylor – Appellant Ned Jelko Pera - Respondent Representation: Appellant – self-represented Respondent - Mr Wykeham, Solicitor File Number(s): AP 15/01508 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Before: K Holwell, General Member

Decisions under appeal

reasons for decision

Introduction 1. This an internal appeal against decisions made in the Consumer and Commercial Division of the Tribunal in applications MV 14/38361 and MV 14/54150, which were heard and determined on 2 October 2014 and 10 December 2014 respectively. The applications arose from the same transaction between the parties. We dismissed the appeals at the hearing on 3 August 2015. The appellant asked for written reasons for decision, which are accordingly set out below.

Background 1. The appellant and the respondent entered into an agreement pursuant to which the respondent undertook bodywork repairs to a motor vehicle owned by the appellant. It is not in dispute that the respondent was not licensed to do so. 2. The parties fell into dispute and the respondent ultimately commenced debt recovery proceedings in the Casino Local Court. The appellant filed a defence to these proceedings as well as a cross claim. The matters were listed for hearing after an unsuccessful attempt at mediation. The appellant did not appear at the hearing on 7 May 2014. Judgement was entered in favour of the respondent on his claim and the appellant's cross claim was dismissed. 3. Rather than appeal the Local Court's decision or apply to have it set aside, the appellant commenced proceedings in the Tribunal (MV 14/38361). In this application, the applicant sought orders including relief from payment of the sum that had been claimed by the respondent in the Local Court as well as an order that that the respondent pay him $3000. 4. When the matter came before the Tribunal on 2 October 2014, the Tribunal dismissed the application. The Tribunal relevantly found that it did not have jurisdiction to hear an application for relief from payment when there was a Local Court order in force requiring the appellant to pay the respondent that sum. The Tribunal further found that it could not make an order for payment by the respondent to the appellant of the sum sought because that sum formed part of the order made in the Local Court. 5. The appellant claims that he understood the Tribunal to be saying that if he paid the judgement debt against him, the Tribunal would then be able to deal with his claim. Rather than appeal the Local Court's orders or apply to have them set aside, the appellant proceeded to pay the judgement debt. He then filed a further application with the Tribunal, which sought orders in respect of the same set of facts. 6. When the appellant's second application (MV 14/54150) came before the Tribunal on 10 December 2014, the Tribunal ordered the respondent to return the vehicle to the applicant (presumably on the basis that the Local Court had made no order relating to possession of the vehicle), but otherwise dismissed the application on the basis that the issues had been dealt with when orders were made in MV 14/38361.

Submissions 1. In making a decision on the appeal, we have considered the Notice of Appeal filed by the appellant, the Notice of Reply filed by the respondent, the written submissions filed by both parties and the oral submissions made during the hearing by the appellant and by Mr Wykeham, solicitor, for the respondent.

Consideration 1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in clause 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on that basis that: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. Appeals made in respect of decisions other than in residential proceedings must be filed within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision, whichever is the later: Rule 25(4)(c) of the Civil and Administrative Rules 2014 (the Rules). 2. The appeal was not filed until 12 January 2015. This means that the appeal against the Tribunal's decision of 2 October 2014 in MV 14/38361 is out of time. 3. Time for filing an appeal can be extended under s 41 of the NCAT Act. The Appeal Panel considered the principles relevant to granting extensions of time in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. In essence, the factors to be considered in determining whether an extension of time should be granted are: 1. The length of the delay; 2. The reasons for the delay; 3. The merits of the case and 4. Prejudice to the other party. 1. In this case, we consider that the decisive factor in respect of both Tribunal decisions is that the appellant's case has no merit. The reasons we have reached this conclusion are set out below. We have therefore not extended time to file the appeal in respect of the 2 October 2014 decision in MV 14/38361. 2. The appellant has not sought to appeal either decision on the basis of a question of law. Given that the appellant is not legally represented, we have nevertheless considered whether the Tribunal below made any error of law. We are not satisfied that there is any such error. We consider that the Tribunal was correct in finding that it could not make an order granting relief from payment in respect of a debt that the Local Court had found to be owing and could likewise not make an order for payment of money in favour of the appellant when the sum sought in effect had been dealt with by the order made in the Local Court. 3. The appellant's remedy was to apply to the Local Court to have the orders made in favour of the respondent set aside or to appeal against the Local Court's decision. It is difficult to see how the appellant understood from the Tribunal's orders in MV 14/38361 that if he paid the judgement debt, this would enable the Tribunal make an order that the money the subject of that debt was not owed to the respondent. If the appellant had successfully applied to have the judgement debt set aside, then he could have run his defence to the respondent's application. Having now paid the judgement debt, the appellant has in effect conceded that the Local Court's decision was correct. 4. In oral submissions, the appellant argued that he had come to the Tribunal because it was the authority that dealt with motor repairer issues. He understood that an unlicensed motor repairer was not entitled to payment. We do not consider that the appellant's understanding of this issue is correct, but in any event, if that was part of his defence to the respondent's Local Court proceedings (and from the appellant's oral submissions, it appears that it was), then it was properly dealt with in that jurisdiction and would have been dealt with had the appellant successfully applied to set aside the orders made by the Local Court. 5. We also consider that the Tribunal did not err on 10 December 2014 when it found that that part of the appellant's second application that concerned payment or relief from payment had already been dealt with in its earlier decision on 14 October 2014. The Tribunal had made final orders in the earlier matter and it had no power to reconsider the same issues. 6. The appellant has sought leave to appeal on all three grounds set out in clause 12(1) of Schedule 4. We are not satisfied that the appellant has established any of the relevant grounds. In respect of both applications the Tribunal made a decision on the basis that the issues concerning money were the subject of final orders in the Local Court. There is nothing unfair or inequitable in the Tribunal reaching this conclusion. Nor was such a decision against the weight of evidence. There is no new evidence to suggest that such final orders had not in fact been made. Indeed, the appellant has complied with the Local Court order and paid the judgement debt.

Conclusion 1. The Tribunal concludes that the appellant has not established a question of law or one of the criteria listed in clause 12(1) of Schedule 4 of the NCAT Act. We have accordingly determined not to extend time in respect of the appeal against the Tribunal's decision made on 2 October 2014. We have not considered whether to grant leave to appeal in respect of the Tribunal's decision made on 10 December 2014 because we are not satisfied that the appellant may have suffered a substantial miscarriage of justice. The appeals in respect of both decisions are accordingly dismissed. Whether the appellant has any remedy in respect of the orders made in the Local Court is a matter in relation to which he may choose to seek legal advice.

********** 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: 12 August 2015