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

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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

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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)

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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

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(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]

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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

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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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