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T & S Nominees Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAP 6

Date of judgement 6 January 2017 Proceeding No. AP 16/37429
Judge(s) KP O’Connor, AM, ADCJ; J McAteer, SM
Court or Tribunal New South Wales Civil and Administrative Tribunal Appeals P
Legislation cited Civil and Administrative Tribunal Act 2013

Civil and Administrative Tribunal Rules 2014
Catchwords PROCEDURE – Discretion to extend time – Application for reinstatement of an appeal made one day late – In the circumstances, extension of time refused. Civil and Administrative Tribunal Act 2013, s 41
Cases cited Aon Risk Services v Australian National University (2009) 239 CLR 175

Chen v Baxter [2014] NSWCATAP 50

Dey v. Victorian Railways Commissioners (1949) 78 CLR 62

Gallo v Dawson [1990] HCA 30, 93 ALR 479

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Nanschild v Pratt [2011] NSWCA 85

Ratnam v. Cumarasamy (1965) 1 WLR 8; (1964) 3 All ER 933

Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61

Background

This matter involved an application under s.41 and 55(2) of the Civil and Administrative Tribunal Act, (“the Act”) to reinstate appeal proceedings against land tax assessments issued to the Applicant for the 2012 to 2014 tax years.

The Applicant had applied for review of the assessments in August 2014 on the basis that the land was exempt primary production land. A hearing was set down for 1 and 2 February 2016 but as at 20 January 2016 the Applicant had not complied with the Tribunal’s timetable regarding the filing and service of evidence and submissions, and on the day of the hearing the Applicant did not appear. The Chief Commissioner applied for summary dismissal and that application was listed for hearing on 11 March 2016. The Tribunal dismissed the proceedings under s.55(1)(c) for failure to appear at the hearing on 1 and 2 February 2016.

The Applicant then applied for an extension of time to lodge an application for reinstatement of the proceedings pursuant to s.41, and sought reinstatement under s. 55(2). Rule 36 of the Civil and Administrative Tribunal Rules 2014 required an application for reinstatement to be lodged within 7 days after the dismissal, and the Applicant was 1 day late in filing its application.

The matter was listed for directions before a single member of the Appeal Panel on 4 August 2016. The Applicant failed to appear and the proceedings were summarily dismissed under paragraph (c) of s.55(1) for failure to appear. On 12 August 2016 the Applicant lodged an application for reinstatement of the appeal.

The proceedings in this case dealt with the 2 questions:

  1. whether to extend the time to allow the application for reinstatement to proceed, and

  2. whether there was a reasonable explanation for the non-appearance on 4 August 2016.

Considerations

For the Applicant to be successful the questions of whether to allow for an extension of time to file the application to reinstate, and whether the reason for non-attendance given was a reasonable one had to be found in the Applicant’s favour.

The discretion to extend time in s 41 is unfettered but must be exercised judicially. The Appeal Panel stated that rules as to time should not be applied in an automatic and oppressive way and cited McHugh J in Gallo v Dawson [1990] HCA 30;

“…The discretion to extend time is given for the sole purpose of enabling the Court of 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. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.”

In this case, the agent for the Applicant was unable to provide a reason for the late filing of the application, and while he queried whether lateness of one day did any harm the Appeal Panel felt that an Applicant was clearly expected to provide an explanation as to the default.

The Applicant bears the burden of persuading the Tribunal that there are proper grounds for an application for an extension of time, and while the Appeal Panel accepted that denying the application would deprive the Applicant of the right to administrative review, it found that the Chief Commissioner had put the Applicant on notice, at least constructively, of an intention to oppose any application for an extension of time. The Appeal Panel agreed with the Chief Commissioner that it was appropriate to set the failure to file the application in time in the wider context of the way the case had been handled by the Applicant.

Regarding the non-attendance, counsel for the Applicant in her affidavit gave the reasons as a faulty lift at the NCAT building, and back pains supported by medical certificates and prescriptions as the reasons for the applicant’s representatives not attending. While the Appeal Panel felt that in a case with little or no history of procedural faults this excuse would be reasonable, the Chief Commissioner contended that given the circumstances of this case it was not. The history of non-compliance with the Tribunal’s timetable, and the failure of counsel for the Applicant to call the registry and inform them of her delay on the day of non-attendance were considered material given the history of previous procedural faults by the Applicant.

Decision

The Appeal Panel concluded in the circumstances that time should not be extended for the filing of the application to reinstate and therefore there was no application before the Appeal Panel and the summary dismissal of the Appeal stood.

While it was not necessary to decide, the Appeal Panel indicated that had the application to reinstate been filed in time it would have accepted the explanation for non-appearance as reasonable and set aside the order for summary dismissal and allowed the Appeal to proceed.

Costs

The general principle outlined in s 60(1) of the Act is that each party to proceedings in the Tribunal is to pay its own costs. However s 60(2) empowers the Tribunal to award costs in special circumstances specified in s.60(3). The Chief Commissioner submitted that had the Applicant appeared on 4 August 2016 these proceedings would not have been necessary.

The Appeal Panel agreed that the Chief Commissioner had demonstrated special circumstances justifying an awarding of costs for the directions hearing on 4 August 2016 and the subsequent steps up to and including the Applicant’s application to reinstate on 8 November 2016.

Orders

  1. Refuse extension of time for lodgement of the application to reinstate the appeal.

  2. The Applicant pay the Chief Commissioners costs for this proceeding, as agreed or assessed.

Link to decision

T & S Nominees Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAP 6

Last updated: 8 May 2017