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ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR SOCIAL HOUSING v WILLIAMS (Appeal) [2017] ACAT 53
AA 24/2017
Catchwords: APPEAL – application for leave to appeal out of time – principles to be considered – prima facie time limits must be obeyed – length of delay – reasons for delay – merits of proposed appeal – prejudice to respondent – requirements of justice
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 81Civil and Administrative Tribunal Act 2013 (NSW) s 41Federal Court of Australia Act 1976 (Cth) s 37MResidential Tenancies Act 1997 s 47
SubordinateLegislation cited: ACT Civil and Administrative Tribunal Procedural Rules (No 2)
r 14
Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56Commissioner for Social Housing v “A” [2015] ACAT 13Denton v TH White; Decadent Vapours Ltd v Bevan; Utilise TDS Ltd v Davise [2015] 1 All ER 880Eastman v Commissioner for Social Housing [2006] ACTSC 52Gallo v Dawson [1990] HCA 30Giusida Pty Limited v Commissioner for Revenue [2016] ACTSC 275Hussain & Bilkis v Rahman [2016] ACAT 145Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22Krown Living Pty Ltd v Lando [2016] ACAT 149Legal Practitioner v Law Society of the ACT [2016] ACTSC 203Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537Superal-Wallace v Indypendent Pty Ltd & Anor [2016] ACAT 144Urbaniak-Bak v Council of the Law Society of the ACT & “RA” [2016] ACAT 156Williams v Commissioner for Social Housing [2016] ACAT 93
List of Texts/Papers cited: Matthew Finn, ‘Denton: Mitchell clarified and amplified’,
Construction Blog, Thomson Reuters, July 8 2014
Tribunal: President G Neate AM
Date of Orders: 26 July 2017Date of Reasons for Decision: 26 July 2017
2
AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 24/2017
BETWEEN:
COMMISSIONER FOR SOCIAL HOUSINGApplicant
AND:
AYSHIA WILLIAMSRespondent
TRIBUNAL: President G Neate AM
DATE: 26 July 2017
ORDER
The Tribunal orders that:
1. The application for leave to appeal out of time be dismissed.
………………………………..President G Neate AM
REASONS FOR DECISION
Introduction
1. On 25 May 2017, a Presidential Member of the ACT Civil and Administrative
Tribunal (the Tribunal) dismissed an application by the Commissioner for
Social Housing (the Commissioner) under section 47 of the Residential
Tenancies Act 1997 for a termination and possession order in relation to
premises occupied by Ms Williams.
2. On 4 July 2017, the Commissioner lodged with the Tribunal an application for
appeal against that decision. Because the lodgement occurred after the end of
the prescribed period for lodging appeals, the Commissioner sought leave to
appeal out of time, and included a statement in accordance with Rule 14 of the
ACT Civil and Administrative Tribunal Rules 2009 (No 2) (ACAT Rules).
3. Ms Williams opposes the grant of leave to the Commissioner to appeal out of
time.
4. At a directions hearing on 18 July 2017, the representatives of the parties made
submissions concerning the law about whether leave should be granted to
appeal out of time, and the circumstances surrounding this application. The
Commissioner’s representative referred to the decision of the NSW Civil and
Administrative Tribunal (NCAT) in Jackson v NSW Land and Housing
Corporation1 (Jackson). Ms Williams’ representative referred to the Mitchell
Denton principles. He relied on the judgment of the English Court of Appeal in
Mitchell v News Group Newspapers Limited2 (Mitchell), and an article3 on that
judgment and the subsequent Court of Appeal decision in Denton v White;
Decadent Vapours v Bevan, Utilise TDS v Davies4 (Denton). He also quoted
from the judgment of the plurality of the High Court in Aon Risk Services
Australia Limited v Australian National University5 (Aon).
1 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 222 Mitchell v News Group Newspapers Limited [2013] EWCA Civ 15373 Matthew Finn, ‘Denton: Mitchell clarified and amplified’, Construction Blog, Thomson Reuters, July 8 20144 Denton v TH White; Decadent Vapours Ltd v Bevan; Utilise TDS Ltd v
Davise [2015] 1 All ER 8805 Aon Risk Services Australia Limited v Australian National University
[2009] HCA 27
2
Applications for leave to appeal out of time – principles
5. Section 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act)
allows a party to appeal 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.6
6. A notice of appeal must be filed in the Tribunal not later than 28 days after the
day the original decision is made.7 Once time runs out, the party has to apply for
leave to appeal out of time. The application for leave to appeal must be
accompanied by a draft notice for appeal, and must have a written statement
showing the nature of the case, the questions of fact or of law that the person
says are involved in the appeal, and the reasons why leave should be given.8
7. An application for leave to appeal out of time is not an appeal in itself, and a
decision about such an application is not a decision of an Appeal Tribunal.
There is no appeal unless leave is granted.9 The application for leave is dealt
with as an original application but is given an ‘AA’ case identifier. As a matter
of practice, presidential members are allocated to the Tribunal for the
application. If leave is given and time extended, an appeal can progress using
the same file and, subject to availability, the same presidential member.
8. The principles that the Tribunal must follow when considering an application for
leave to appeal out of time are well-established and used regularly by courts and
tribunals. In Concerned Citizens of Canberra Inc v Chief Executive (Planning
and Land Authority)10 (Concerned Citizens), Justice Refshauge repeated the
principles he had set out in an earlier case:
1. Time limits are important and must, prima facie, be obeyed.
2. In order to justify a court acceding to an application to extend time, there must be some material on which the court can exercise its discretion.
6 Section 81, ACAT Act 7 Rule 14, ACAT Rules8 Rules 14 and 22, ACAT Rules9 See the discussion of this by Elkaim J in Legal Practitioner v Law
Society of the ACT [2016] ACTSC 20310 [2015] ACTCA 56 at [20] – [21]
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3. Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so.
4. There should be an explanation for the delay, as to which any action (other than to appeal) that has been taken by the applicant is relevant.
5. The court must consider any prejudice to the respondent in defending the proceeding, as caused by the delay, and any such prejudice will tell against the extension.
6. The mere absence of prejudice is not enough to justify the extension of time.
7. The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted.
8. The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case.
9. Nevertheless, the application is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula.
10. In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.
9. That passage has been relied on by the Tribunal in published decisions11 and oral
ex tempore decisions.
10. The judgments referred to by the parties to this application illustrate and expand
upon some of those principles.
11. Relevantly to principles 2 and 4 above, Ms Williams submitted that this Tribunal
should be guided by the following statements from the Court of Appeal’s
judgement in Mitchell:12
11 See, e.g. Urbaniak-Bak v Council of the Law Society of the ACT & “RA” [2016] ACAT 156; Krown Living Pty Ltd v Lando [2016] ACAT 149; Hussain & Bilkis v Rahman [2016] ACAT 145; Superal-Wallace v Indypendent Pty Ltd & Anor [ 2016] ACAT 144
12 Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [41]
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... The court will want to consider why the default occurred. If there is a good reason for it the court will likely to decide that relief should be granted. For example if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then depending on the circumstances, that may constitute a good reason ... But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason.
12. That passage must be considered in context. The case concerned proceedings in
the High Court in England, Queens Bench Division, and involved compliance
with rules concerning the late filing of costs budgets for one party in the sum of
£506,425. The judgement was the first time the Court of Appeal had been
called upon to decide on the correct approach to the revised version of the Civil
Procedure Rules (CPR) which came into force on 1 April 2013 to give effect to
the reforms recommended by Sir Rupert Jackson. The question at the heart of
that appeal was how strictly the courts should now enforce compliance with
rules, practice directions and court orders. The Court of Appeal noted that the
traditional approach of English civil courts had been to excuse non-compliance
if any prejudice caused to the other party could be remedied (usually by an
appropriate order for costs). In his review of civil litigation costs, Sir Rupert
Jackson concluded that a tougher and less forgiving approach was required, and
his recommendations were incorporated into the CPR.13
13. Among other things, the Court of Appeal referred to the “overriding objective” of
enabling the court to deal with cases “justly and at proportionate cost.”14
However, there was now a shift away from exclusively focusing on doing
justice in the individual case. The Court of Appeal noted that the Jackson
reforms, and the Woolf reforms that preceded them, were not intended to render
the overriding objective subject to an overarching consideration of securing
justice in the individual case. Rather the revisions were intended to make clear
that the relationship between justice and procedure has changed. The tougher,
more robust approach to rule-compliance and relief from sanctions is intended
to ensure that justice can be done in the majority of cases. This requires an
13 Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [1]
14 Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [25]
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acknowledgement that the achievement of justice means something different
now. Parties can no longer expect indulgence if they fail to comply with their
procedural obligations. Those obligations not only serve the purpose of ensuring
that they conduct the litigation proportionately in order to ensure their own costs
are kept within proportionate bounds. But more importantly they serve the
wider public interest of ensuring that other litigants can obtain justice efficiently
and proportionately, and that the court enables them to do so.15
14. In endorsing that approach, the Court of Appeal referred to the “importance of the
court having regard to the needs and interests of all court users when case
managing in an individual case.”16 According to the Court of Appeal, the “new
more robust approach that we have outlined above will mean that from now on
relief from sanctions should be granted more sparingly than previously.”17 Their
Lordships expressly recognised that “there are those who will find this new
approach unattractive. There may be signs that it is not being applied by some
judges.”18 Later in the judgment, the Court of Appeal seemed to criticise a judge
who appeared to be “focusing exclusively on doing justice between the parties
in the individual case and not applying the new approach which seeks to have
regard to a wide range of interests.”19
15. I note that, as the article provided by Ms Williams indicates, the force and effect
of aspects of the judgment in Mitchell appeared to have been modified to some
degree by the subsequent Court of Appeal decision in Denton.
15 Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [38] quoting from the 18th implementation lecture on the Jackson reforms
16 Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [39]
17 Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [46]. The Court of Appeal allowed that the court will usually grant relief if there has been “no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms.” However the court acknowledged that even the question of whether a default is insignificant may give rise to dispute and therefore to contest of applications; at [40], see also [48].
18 Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [47]
19 Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [51]
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16. The decision of the Court of Appeal in Mitchell was made in circumstances and
by reference to rules that are different from those that apply to proceedings
before the Tribunal. Hence the passage relied on by Ms Williams should not
necessarily be applied without qualification to proceedings such as these. But,
as I explain below, the overarching principle explained in that case is not
irrelevant here.
17. Ms Williams also relies on extracts from the following passage from the judgment
of Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon:20
An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application to case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consistent with this Court’s earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the Court and other litigants. Such statement should not be applied in the future.
18. That passage, dealing as it does with amendments of pleadings under particular
court rules and in a context where orders for costs can be made, can only be
relevant to this application to the extent that (by analogy) it shows that a court
or tribunal should have regard to a range of case management matters when
deciding whether to permit an extension of time for an appeal which would
otherwise be prohibited by the relevant rules.
19. In that respect it indicates a trend in judicial administration that is consistent with
the overarching approach being adopted in England as reflected in the Court of
Appeal’s decision in Mitchell. It is also consistent with case management
practices elsewhere in Australia, illustrated by section 37M of the Federal
Court of Australia 1976 (Cth) which provides:
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:(a) according to law; and
20 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [111] (citations omitted)
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(b) as quickly, inexpensively and efficiently as possible.
(2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:(a) the just determination of all proceedings before the
Court;(b) the efficient use of the judicial and administrative
resources available for the purposes of the Court;(c) the efficient disposal of the Court’s overall caseload;(d) the disposal of all proceedings in a timely manner;(e) the resolution of disputes at a cost that is proportionate
to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
20. The decisions quoted above support an approach that is consistent with managing
the diverse range and high volume of matters that come to the Tribunal. There is
no doubt that dealing with applications for extensions of time to lodge appeals
(as well as analogous applications for variations of directions in relation to
matters proceeding to a hearing) takes time as well as member and other
resources that could be used (and in some cases have already been allocated) for
other substantive matters. In other words, the amount of attention required to
deal with matters such as this necessarily displaces resources that could be used
to deal with other aspects of the Tribunal’s work.
21. The approach underpinning those judgments is also consistent with:
(a) the object of the ACAT Act “to ensure that applications to the tribunal are
resolved as quickly as is consistent with achieving justice;”21 and
(b) the statutory principle that, in exercising its functions under the ACAT
Act, the Tribunal must ensure that its procedures are “as simple, quick,
inexpensive and informal as is consistent with achieving justice.”22
22. The decision of the NCAT Appeal Panel in Jackson is the most directly
comparable and hence relevant to the subject of these proceedings. It involved
an application by a tenant of residential premises for an extension of time in 21 ACT Civil and Administrative Tribunal Act 2008 section 6(c)22 ACT Civil and Administrative Tribunal Act 2008 section 7(a)
8
which to appeal against orders made by the NCAT to terminate the residential
tenancy agreement. The Appeal Panel concluded that the application should be
dismissed, and set out some of the principles that apply in relation to
applications for extension of time in which to appeal from a division of the
NCAT to the Appeal Panel.23
23. The relevant Rules required an internal appeal from a decision in a residential
tenancy matter to be instituted within 14 days of the date on which the applicant
was notified of the decision. In Jackson, the notice of appeal was lodged nearly
three weeks out of time. Section 41(1) of the Civil and Administrative Tribunal
Act 2013 (NSW) (NCAT Act) empowers the NCAT to “extend the period of
time for the doing of anything under any legislation in respect of which the
Tribunal has jurisdiction despite anything to the contrary under that legislation.”
Under section 41(2), an application for an extension of time “may be made even
though the relevant period of time has expired.”
24. The Appeal Panel observed that time limits, including the specification of the time
within which an appeal from an internally appealable decision must be lodged:
are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced.24
That statement explains the basis of the first principle listed by Refshauge J in
Concerned Citizens.
25. The Appeal Panel acknowledged that exceptions should be made “where the
interests of justice so require,” and noted that the express power in section 41 of
the NCAT Act to grant extensions of time allows the NCAT to “prevent the
rigid enforcement of time limits becoming an instrument of injustice.”25 The
Appeal Panel referred to the decision of McHugh J in Gallo v Dawson26 where
his Honour wrote that the object of a rule to grant an extension of time is to
23 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [1], [2]
24 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [21]
25 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [21]
26 Gallo v Dawson [1990] HCA 30 at [2]
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ensure that the rules that fix times from doing acts do not become “instruments
of injustice.” His Honour continued:
The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. ... This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. ... As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy27... “The rules of court must prima facie be obeyed, and in order to justify a court extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
Those statements provide support for principles 2, 9 and 10 listed by
Refshauge J in Concerned Citizens.
26. Having reviewed relevant decisions of courts and tribunals, the Appeal Panel of
NCAT wrote that the considerations that will generally be relevant to the
Appeal Panel’s consideration of whether to grant an extension of time in which
to lodge a Notice of Appeal include:
(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant;
(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success;
(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
(a) The length of the delay;
(b) The reason for the delay;
(c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
(d) The extent of any prejudice suffered by the respondent (to the appeal),
and
27 (1965) 1 WLR 8, 12; (1964) 3 All ER 933, 935
10
(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable.28
27. Having regard to the authorities cited by parties to this matter, and the decision of
Refshauge J quoted above, it is clear that, in essence, the principles require the
Tribunal to consider the length of the delay and the applicant’s explanation for
delay, the merits of the proposed appeal, whether the respondent would suffer
prejudice if the application is allowed, and whether justice requires that an
extension of time be granted.
28. Considering the merits of the proposed appeal in the context of an application for
extension of time to appeal requires that the Tribunal consider whether there is
an arguable basis for concluding that the original Tribunal has made an error of
fact or of law that is material, in the sense that it is an error that might make a
difference to the outcome of the case.29
Applying the principles to the circumstances of this application
The length of delay
29. The Commissioner lodged his application for appeal in the Tribunal registry some
nine days outside the prescribed period.
30. Ms Williams contends that the relief was not sought promptly and effect of the
default is not trivial.
31. The Commissioner submits that the delay is relatively minor, particularly if two
days are deducted for the weekend.
32. I note that in Mitchell, the Court of Appeal allowed that the court will usually
grant relief if there has been “no more than an insignificant failure to comply
with an order: for example, where there has been a failure of form rather than
substance; or where the party has narrowly missed the deadline imposed by the
order, but has otherwise fully complied with its terms.” However the Court
28 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] (citations omitted)
29 See the consideration of the approach that the ACAT should take on appeal in Giusida Pty Limited v Commissioner for Revenue [2016] ACTSC 275 at [29] to [42]
11
acknowledged that even the question of whether a default is insignificant may
give rise to dispute and therefore to contest of applications.30
33. The delay of nine days is not insignificant, when compared with, say, lodgement
on the day following the end of the prescribed period.
Reasons for delay
34. The Commissioner explained the delay in lodging the application for appeal by
reference to the time taken to obtain transcript of the hearing before the original
Tribunal. As I understand it, the Commissioner ordered transcript almost
immediately after the hearing and received it on 2 June 2017. The
Commissioner acknowledged that seven days is the usual period for the
provision of transcript. It was submitted that if one were to allow those seven
days plus two days for a weekend, then the nine days by which the lodgement of
the application for appeal was late could notionally be discounted and the
Tribunal should exercise its discretion to grant the extension of time to file the
application for appeal.
35. This submission lacks merit. If, as the Commissioner submits (and this Tribunal
understands), the usual period for obtaining transcript is seven days then, on the
approach urged by the Commissioner, the Tribunal would, if requested,
routinely add seven days to the appeal period in every case where the appellant
had obtained transcript. That cannot be accepted. Furthermore, given that the
Commissioner was represented at the hearing before the original Tribunal and
appears to have acted in a timely way in ordering and obtaining the transcript,
there were about 21 days in which to prepare an application for appeal.
36. The Commissioner’s representative also suggested that there were staffing
shortages and other issues in the office which might have added to the delay in
lodging the application for appeal. No evidence was provided in support of that
assertion, nor was it pressed. However, as the authorities quoted earlier indicate,
busyness and volume of work are not of themselves exculpatory factors for law
firms when seeking an extension of time. The same could be said of a public
authority. The Commissioner could have lodged a minimal application for
30 Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537, [40], see also [48]
12
appeal within the prescribed period and later sought to amend it, had that been
necessary.
37. Another factor is relevant here. The Commissioner appears regularly before this
Tribunal. The Commissioner can be taken to be familiar with the practices and
procedures of the Tribunal. For those reasons, the Commissioner can be treated
in an application such as this, in the same way as a legal practitioner, rather than
as a self-represented litigant who has no legal background and no familiarity
with the procedures of the Tribunal. Indeed, the Commissioner is (probably)
meant to operate as a model litigant.
38. I am not satisfied that the circumstances in which the application for appeal was
lodged out of time merit the grant of an extension of time in which to lodge the
appeal.
Significance of the case on appeal
39. The Commissioner submits that the appeal raises an important question of
statutory interpretation. The issue involves the operation of section 47(1) of the
Residential Tenancies Act 1997, which provides that, on application of a lessor,
the Tribunal “may make a termination and possession order if satisfied that”
three specified criteria are met. Specifically, the Commissioner seeks a ruling
from an Appeal Tribunal on the extent of the discretion conferred on the
Tribunal by the word “may” in that subsection.
40. According to the Commissioner, there is only one appeal Tribunal decision that
turns to the operation of section 47, Williams v Commissioner for Social
Housing,31 and that decision notes that the discretion in section 47 is narrower
than other areas of the Act. For that reason, the Commissioner submits that there
is no definite law on the extent of the discretion within section 47. From the
Commissioner’s standpoint, it is important to have the issue resolved
authoritatively.
31 Williams v Commissioner for Social Housing [2016] ACAT 93. The issues has been dealt with by the Tribunal previously, see e.g. Commissioner for Social Housing in the ACT v “A” [2015] ACAT 13, and cases cited including the judgment of Ryan J of the ACT Supreme Court in Eastman v Commissioner for Housing for the ACT [2006] ACTSC 52
13
41. I accept that the Commissioner, and potentially other parties, would benefit from
an appeal Tribunal ruling on the question raised in the application for appeal.
However, I am not satisfied that the significance of the issue is a sufficient basis
for granting leave to appeal out of time in this case because:
(a) if the issue is so significant, the Commissioner could have ensured that an
appeal was lodged within the prescribed period (particularly given the
Commissioner’s involvement in the original hearing and the apparently
timely acquisition by the Commissioner of the transcript of that hearing to
enable an informed decision to be made about whether to appeal in that
case); and
(b) given that the same issue has arisen on a number of occasions before the
Tribunal, the Commissioner is likely to have opportunities in the future to
take the issue to an appeal Tribunal, and hence a refusal to grant leave to
appeal out of time in this case will not deprive the Commissioner of the
opportunity to have the issue dealt with authoritatively.
Prospects of success on appeal
42. The application for appeal states that the original Tribunal incorrectly exercised
the discretion within section 47 of the Residential Tenancies Act 1997 and fell
into jurisdictional error.
43. As noted earlier, considering the merits of the proposed appeal in the context of an
application for extension of time to appeal requires that the Tribunal consider
whether there is an arguable basis for concluding that the original Tribunal has
made an error of fact or of law that is material, in the sense that it is an error that
might make a difference to the outcome of the case.32
44. According to the application for appeal, the Commissioner submits that:
(a) the word “may” within section 47 confers a power to be exercised should
the prerequisites of the provision be satisfied;
32 See the consideration of the approach that the ACAT should take on appeal in Giusida Pty Limited v Commissioner for Revenue [2016] ACTSC 275 at [29] to [42]
14
(b) in circumstances where the preconditions of section 47 are satisfied, the
Tribunal has a duty to make the order sought;
(c) the Tribunal’s discretion is limited to dismissing an application should the
prerequisites not be satisfied.
45. In support of the submissions, the Commissioner refers to judgments of the High
Court in Ward v Williams33 and Finance Facilities Pty Ltd v Federal
Commissioner of Taxation34 about the scope of discretion conferred by the use
of ‘may’ in other statutes. The Commissioner also refers to the use of ‘may’ in
sections 48 and 49 of the Residential Tenancies Act 1997 and section 146 of the
Legislation Act 2001. I accept, for present purposes, that the Commissioner has
an arguable case.
46. It is clear that, if an Appeal Tribunal accepts the Commissioner’s argument about
the scope of the Tribunal’s discretion under section 47, that could make a
difference to the outcome of the case.
Prejudice to the respondent if leave is granted
47. The Commissioner submits that there is little prejudice to Ms Williams should the
Tribunal extend the time frame within which an appeal can be lodged.
48. Ms Williams' representative submitted that she would suffer prejudice if the
Tribunal were to grant leave to appeal out of time. In essence, he stated that
Ms Williams would suffer psychological damage at the time she is about to be
released from prison. She is a vulnerable person who has had a difficult life. She
has undertaken rehabilitation courses at the institution where she is detained. In
his submission, her rehabilitation could be adversely affected if she had the
additional strain of this appeal. In support of his submission, he relied on the
evidence of Ms Williams' circumstances that was before the original Tribunal.
49. I give relatively little weight to this submission because, even accepting the
submission at face value, it is likely that Ms Williams would have suffered the
same adverse effects if the appeal had been lodged in time. I do not understand
33 Ward v Williams [1955] HCA 434 Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971]
HCA 12
15
the submission to be that some additional prejudice would be suffered by her
flowing from the lateness of the application by some nine days.
50. I note, however, that at the end of the appeal period, Ms Williams should have the
right to retain the benefit of the decision of the original Tribunal
51. In any case, the mere absence of prejudice (or additional prejudice) is not enough
to justify the extension of time.
Conclusion
52. The starting point in deciding this application is that time limits are important and
prima facie must be obeyed. The purpose of the time limits is to promote the
orderly and efficient conduct of proceedings in the Tribunal and achieve finality
in litigation. All parties should comply with the time limits, but the Tribunal
expects that parties who are legally represented or public authorities will be
particularly careful to meet those requirements.
53. Having regard to the applicable principles and the evidence in relation to them, I
am not satisfied that leave should be granted for the Commissioner’s appeal to
be filed outside the prescribed period. In summary, there is no evidence of
compelling circumstances that prevented the Commissioner from lodging an
appeal within the 21 days or so after receiving the transcript of the hearing
before the original Tribunal. The legal question which the Commissioner seeks
to have definitively resolved arises from time to time in proceedings before the
Tribunal. The present case is not unique and hence refusal of leave to appeal out
of time in this case will not deprive the Commissioner or a broader interested
range of parties (potential or actual) from having this issue resolved.
54. The demands of justice (whether for the parties to these proceedings or more
broadly as described in Miller) do not require the grant of an extension, nor
would the enforcement of the time limit in this case work an injustice upon the
applicant.
55. It follows that the application for leave to appeal out of time is refused.
56. In the circumstances of this case, there was no difficulty in reaching that
conclusion. However, the way in which the case was argued prompted the
preparation of written reasons.
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57. The publication of decisions in relation to applications such as this, including the
criteria taken into account by this Tribunal when dealing with those
applications, should provide guidance to other parties. In particular, it should
send a message that parties and their representatives should routinely comply
with rules, practice directions and orders of the Tribunal. If that happens,
applications such as this, which consume the resources of the parties and divert
resources of the Tribunal from dealing with other substantive matters, will be
less frequent and perhaps become a thing of the past.35
………………………………..President G Neate AM
35 Compare Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at [60]
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HEARING DETAILS
FILE NUMBER: AA 24/2017
PARTIES, APPLICANT: Commissioner for Social Housing
PARTIES, RESPONDENT: Ayshia Williams
REPRESENTATIVE FOR APPLICANT Mr D Safi Westendorf
REPRESENTATIVE FOR RESPONDENT Mr D Emerson-Elliot
TRIBUNAL MEMBERS: President G Neate AM
DATES OF HEARING: 18 July 2017
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