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[2009] NSWCA 230
respondent. 1. The appellants' application for an extension of time within which to file and serve an Amended Notice of Appeal is refused. 2. The appellant's appeal is dismissed pursuant to paragraph...
Mr Al Mahmood lost his retail lease case at the Tribunal and appealed. The Appeal Panel gave him extra time and ordered him to file an updated appeal document, talk settlement with the landlords, and prepare submissions. He did none of those things. Days before the hearing he asked for eight more weeks because he could not pay a lawyer. The landlords said they would ask the Panel to throw the appeal out. On the hearing day Mr Al Mahmood did not turn up. The Registry rang him to say the case would start at noon but he still did not appear. After the hearing finished he sent a doctor's note saying he had a cold. The Panel decided the note was too vague, arrived too late, and did not explain why he could not attend a hearing. They refused any further time, dismissed the appeal because he failed to appear, and ordered him to pay the landlords $1,000 in costs. The Panel stressed that once you start an appeal you must move it along, and that vague or late excuses will not be accepted.
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The underlying dispute concerned a retail shop lease governed by the Retail Leases Act 1994. Mr Abdulla Al Mahmood became lessee in January 2010, ceased trading in March 2011, and brought two claims in the Retail Leases Division (file numbers 105210 and 115014). He sought compensation for disturbance under s 34 and damages under s 72. After a hearing on 9 December 2011 and 10 February 2012 the Tribunal delivered its decision on 30 November 2012 in Mahmood v Christofi (No 2) [2012] NSWADT 251. It allowed only a small set-off for stock, found Mr Al Mahmood had breached the lease by non-payment of rent, held the lessors had given sufficient opportunity to remove goods, and rejected most of the damages claims. Each party was ordered to bear their own costs.
Mr Al Mahmood lodged a Notice of Appeal on 20 December 2012, asserting errors of law in eight paragraphs of the reasons and seeking leave to appeal on the merits. The respondents filed a Reply on 10 January 2013. Directions were made on 21 January 2013 for written submissions. The appeal was listed for half a day on 5 April 2013. On that date counsel for Mr Al Mahmood obtained leave to file an Amended Notice of Appeal. The Appeal Panel ordered the parties to commence settlement negotiations within seven days, the appellant to file and serve an Amended Notice of Appeal within 21 days (by 26 April 2013), followed by sequential filing of replies and submissions, with the hearing fixed for 17 June 2013 at 10 am.
None of those directions was complied with. In particular, no Amended Notice was filed and no settlement negotiations occurred. On 4 June 2013 the respondents' solicitor wrote to Mr Al Mahmood noting the gross default and giving notice that an application would be made on 17 June to strike out the appeal with costs. On 11 June 2013, four working days before the hearing, Mr Al Mahmood wrote to the Tribunal seeking an eight-week adjournment on the ground that he could not arrange payment for a legal representative and therefore could not prepare submissions. He copied the letter to the respondents, who immediately confirmed their opposition and intention to press for dismissal. The Registry left a telephone message on the mobile number supplied by Mr Al Mahmood in his Notice of Appeal, advising that he should attend on 17 June and make any adjournment application at the commencement of the hearing.
On the hearing day the matter was stood over from 10 am to 12 noon. The Registry telephoned Mr Al Mahmood at 10:25 am and left a further message. When the hearing commenced at noon there was no appearance by or on behalf of the appellant. The respondents and their solicitor appeared and pressed the application for dismissal under s 73(5)(g)(iii) and (iv) of the Administrative Decisions Tribunal Act 1997 for non-appearance and want of prosecution. The Appeal Panel heard submissions, reserved its decision, and later that afternoon received by facsimile a further letter from Mr Al Mahmood together with a medical certificate dated 17 June 2013. The certificate stated that Mr Al Mahmood was receiving treatment for a common cold and would be unfit for his usual occupation from 17 to 19 June 2013. The respondents objected to the Panel having regard to material received after the hearing had concluded. The Panel proceeded to determine the applications on the material before it, including the late letter and certificate.
The Appeal Panel began by noting that its procedural powers are those set out in Chapter 6 of the ADT Act and that s 73 applies to Appeal Panel proceedings. Section 73(3) requires the Tribunal to act with as little formality as the circumstances permit and according to equity, good conscience and the substantial merits without regard to technicalities. Section 73(5)(a) requires it to act as quickly as is practicable. Against that statutory context the Panel treated the power to adjourn or extend time as discretionary and emphasised that an appellant who has initiated an appeal bears the onus of prosecuting it expeditiously.
In relation to the adjournment and extension application the Panel found Mr Al Mahmood's explanation—that he could not arrange payment for legal representation—entirely unsatisfactory. The explanation was given more than six weeks after the due date for the Amended Notice of Appeal and only four working days before the hearing. No earlier approach had been made to the Tribunal or the respondents to vary the timetable. The Panel formed the impression that the application was one of convenience rather than substance. It also noted that the ordered settlement negotiations had not occurred; the only contact had been a brief discussion in which the appellant's former counsel indicated that the appellant was not interested unless the respondents were willing to pay him money. In the absence of a satisfactory explanation the Panel refused the extension of time. It added that, had Mr Al Mahmood appeared, the adjournment application would have been refused on the same basis.
On the dismissal application the Panel observed that the power under s 73(5)(g) is discretionary even where the prescribed circumstances exist (citing Sullivan v State of New South Wales (NSW Police Force) [2009] NSWADT 2 at [17]). It considered the two limbs pressed by the respondents. First, non-appearance under s 73(5)(g)(iii). There was no dispute that Mr Al Mahmood knew the hearing date, knew the respondents would oppose any adjournment, and had been contacted by the Registry on the morning of the hearing. The Panel held that the post-hearing letter and medical certificate did not provide a valid rationale. The certificate was described as "very cryptic". It referred only to a common cold and unfitness for usual occupation; it said nothing about the appellant's fitness to appear before the Tribunal on 17 June. The Panel inferred either that Mr Al Mahmood had not mentioned the hearing to the doctor or that the doctor had not considered him unfit to attend. The failure to communicate any inability to attend prior to 10 am on the hearing day was also material. The Panel concluded that dismissal for non-appearance was appropriate. It noted, however, that Mr Al Mahmood could still apply for reinstatement under s 73(5)(h) if he could later provide a reasonable explanation.
Second, want of prosecution under s 73(5)(g)(iv). The Panel accepted that the appellant had failed to comply with the 5 April 2013 directions but held that those defaults did not warrant dismissal on this ground because the appeal could still have been heard on the original Notice of Appeal. No submission had been made that the original appeal was frivolous, vexatious, misconceived or lacking in substance, and the Panel had not examined that question. Accordingly dismissal was ordered only under s 73(5)(g)(iii).
On costs the Panel noted that s 77A of the Retail Leases Act 1994 applied s 88 of the ADT Act. The general rule is that each party bears its own costs, but s 88(1A) permits an order if it is fair having regard to listed factors. The appellant's failure to comply with orders without reasonable excuse and the consequent wasted hearing day made it fair to order costs. The respondents had sought $4,000; the Panel fixed the sum at $1,000, taking into account the earlier costs order made on 5 April 2013 for costs thrown away by the grant of leave to amend.
The Panel expressly adopted the approach in Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 that the dismissal power is not punitive but must be exercised in accordance with the dictates of justice, having regard to the overriding purpose in s 56 of the Civil Procedure Act 2005, the objects of case management in s 57, and the matters listed in s 58. Although the Tribunal is not a court, those provisions were treated as a useful guide when applying s 73 of the ADT Act.
Prior to this decision the Tribunal's power to dismiss for non-appearance or want of prosecution was already set out in s 73(5)(g) of the ADT Act. The section had been construed in Sullivan v State of New South Wales (NSW Police Force) [2009] NSWADT 2 as conferring a discretion even where the listed circumstances are made out. The interaction between the ADT Act and the case-management provisions of the Civil Procedure Act 2005 had also been considered in earlier cases. What this decision added was a detailed application of those principles to a factual scenario involving late correspondence seeking adjournment, complete non-compliance with a comprehensive set of directions, and a post-hearing medical certificate that was held to be inadequate.
The decision reinforced that a medical certificate must address the specific question of fitness to attend the hearing, citing Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94 and Magjarraj v Asteron Life Pty Ltd [2009] NSWSC 1433 for the proposition that a cryptic certificate referring only to a common cold and unfitness for usual occupation does not suffice. It also emphasised the practical onus on an appellant to move the appeal forward and to communicate promptly with the Tribunal and the other party if difficulties arise. After the decision the law remained unchanged in its statutory text, but the reasons supplied a clear illustration of the level of explanation required and the consequences of providing late, vague or insufficient material. The decision continues to stand as an example of the Tribunal acting consistently with the statutory command in s 73(5)(a) to act as quickly as is practicable while still affording procedural fairness.
Paragraph [30]: "We have considered all the material before us, including the correspondence received from the appellant after we had concluded the hearing and reserved our decision. We have not sought further written submissions from the respondents as we have found, on the material before us, the appellant has failed to provide a satisfactory explanation for (a) his failure to comply with the orders made by the Appeal Panel on 5 April 2013 and (b) his failure to appear at the hearing on 17 June 2013."
Plain English: The Panel looked at everything, even the late letter and doctor's note, but decided the appellant had not given any good reason for ignoring the earlier orders or for staying away from the hearing.
Paragraph [41]: "In his covering letter the appellant said he could not attend the hearing that day because he 'had been suffering from a virus flu and cold for few days' and he again sought an adjournment of the hearing of his appeal. The medical certificate, provided by the appellant in support of his contention, said as follows: [certificate quoted]."
Plain English: The appellant claimed a cold prevented attendance, but the doctor's note only said he was unfit for normal work for three days and said nothing about being unable to sit in a Tribunal hearing.
Paragraph [43]: "What is of concern is the appellant's failure to communicate, prior to 10am that morning, of his inability to attend. This he did not do until several hours after the Registry had contacted him at 10.25 am that morning."
Plain English: The Panel was troubled that the appellant waited until after the Tribunal had rung him before saying he could not come; earlier notice would have been expected.
Paragraph [45]: "As the date of the appellant's appeal was set at a time that was convenient to both parties and the appellant has failed to provide a proper basis for his failure to appear, in our view, it is appropriate to make the order sought (i.e. dismiss the appeal for non appearance). We note that in making this order, the appellant still has a right to seek the reinstatement of his appeal, if he can provide a reasonable explanation (other than the one provided to date) of his failure to appear."
Plain English: Because the hearing date suited everyone and the excuse was inadequate, dismissal for non-appearance was the right outcome; however the door remains open for the appellant to apply to reinstate the appeal if he can later give a better explanation.
Paragraph [54]: "On the basis of the appellant's failure to comply with the orders made on 5 April 2013 and his failure to appear on 17 June 2013, we are satisfied that it is fair to make an order that the appellant pay the respondent's costs."
Plain English: Because the appellant ignored the orders and did not turn up, it is fair that he pay something towards the respondents' costs of the wasted day.
This decision is likely to be engaged whenever an appellant in the Administrative Decisions Tribunal (or its successor) fails to appear at a listed hearing after having been given clear notice, particularly where that non-appearance is coupled with prior non-compliance with specific directions for the filing of documents or participation in settlement negotiations. The precedent is especially relevant where an adjournment is sought by letter sent only days before the hearing and the explanation given is lack of funds to instruct lawyers or a broadly worded medical certificate that does not address fitness to attend the hearing itself. The fact that the medical certificate arrived after the hearing had concluded and the decision reserved was treated as particularly damaging.
The decision also applies where an appellant has been granted leave to amend its notice of appeal on condition that further steps are taken within defined short periods and then simply does nothing. The emphasis on the appellant's onus to prosecute the appeal expeditiously means the precedent will be triggered in any case in which long periods of unexplained inaction follow the making of concrete directions. Finally, the costs analysis is engaged whenever non-compliance and non-appearance cause the other party to incur costs of attendance at a hearing that ultimately does not proceed on the merits.
The judgment itself applied the reasoning in Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [40] that the dismissal power is not punitive but must accord with the dictates of justice, and it treated the case-management provisions of the Civil Procedure Act 2005 as a useful guide even though the Tribunal is not a court. It cited Sullivan v State of New South Wales (NSW Police Force) [2009] NSWADT 2 for the proposition that the power remains discretionary even when the statutory preconditions are satisfied. The Panel also applied the approach in Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94 and Magjarraj v Asteron Life Pty Ltd [2009] NSWSC 1433 when assessing the sufficiency of the medical certificate, holding that a certificate must explain why the party cannot attend the hearing on the particular day.
Within the judgment the Panel distinguished the want-of-prosecution limb of s 73(5)(g)(iv) on the basis that the original Notice of Appeal remained capable of being heard and no submission had been made that it was misconceived. The decision therefore illustrates a measured use of the dismissal power, confining it to the non-appearance ground while leaving open the possibility of reinstatement. The detailed recitation of the chronology from the filing of the Notice of Appeal through to the post-hearing receipt of the medical certificate has served as a template for later tribunals when recording the history of non-compliance in procedural dismissal applications.
The judgment expressly left open whether a more detailed medical certificate that did address fitness to appear before the Tribunal and was provided before the hearing would have altered the outcome. It also left open the precise content of a "reasonable explanation" sufficient to justify reinstatement under s 73(5)(h). The Panel did not decide whether the original Notice of Appeal was misconceived or lacking in substance, noting that no such submission had been made; that question therefore remains unanswered on the merits.
Another open question is the weight to be given to an appellant's impecuniosity when it is raised well in advance of the hearing and supported by evidence rather than a last-minute letter. The Panel's observation that the explanation appeared to be one of convenience was tied to the timing and lack of earlier communication; it is not clear whether earlier and better evidenced financial difficulty would have produced a different discretionary outcome. Finally, the decision does not explore the outer limits of "want of prosecution" in circumstances where an appellant has complied with some but not all directions and the appeal could still be heard on the existing papers; the Panel simply held that the power was not engaged on the facts before it. These issues await further elucidation in subsequent cases.
Introduction 1This appeal was listed for hearing on 17 June 2013. Prior to the hearing, on 11 June 2013, the appellant, Abdulla Al Mahmood, wrote to the Tribunal seeking an adjournment of the hearing. On the same day, the appellant provided the respondents, George and Elizabeth Christofi, with a copy of his letter to the Tribunal. The respondent did not consent to an adjournment and confirmed their earlier advice that they would be appearing at the hearing and making an application for dismissal of the appeal. That application, they advised would be made on the basis of the appellant's failure to comply with the orders made by the Appeal Panel on 5 April 2013. 2When the appeal came before us on 17 June 2013, there was no appearance by, or on behalf of the appellant. Mr Carson, solicitor for the respondents, did appear. The respondents were also present. 3At the commencement of the hearing, Mr Carson formally opposed the adjournment of the hearing and made an application for the appeal to be dismissed on the basis of the appellant's non appearance and his failure to comply with the orders of the Appeal Panel made on 5 April 2013: see para 73(5)(g)(iii) and (iv) of the Administrative Decisions Tribunal Act 1997 (ADT Act). 4We made no orders in regard to the appellant's adjournment application and proceeded to hear oral submissions from Mr Carson in regard to the respondents' dismissal application. At the conclusion of hearing submissions we reserved our decision. We have now considered all the material before us in regard to these applications. For the reasons set out below we have decided: (a) to refuse the applicant's application for adjournment and (b) to dismiss the appellant's appeal.
Background 5The appellant has appealed the decision of the Tribunal in regard to his retail leases claim against the respondents: see Mahmood v Christofi (No 2) [2012] NSWADT 251. A brief background to the appellant's claim is as follows: in January 2010, the appellant became the lessee of a retail shop, owned by the respondents. That lease was subject to the provisions of the Retail Leases Act 1994 (RL Act). The appellant ceased trading from the shop on 28 March 2011; in December 2010, a dispute arose between the appellant and the respondents in regard to the retail shop lease. The appellant lodged a retail leases claim, under the RL Act, against the respondents (file no. 105210). On 23 December 2010, Judicial Member Fox, made interim orders in regard to the dispute, including an interim order staying the respondents' threatened lockout of the appellant from the shop; subsequently, on 9 February 2011, the appellant lodged a further retail leases claim against the respondent (file no. 115014), and both claims were heard on 9 December 2011 and 10 February 2012. The appellant sought an order for compensation under s 34 of the RL Act (i.e. compensation for disturbances) and orders in respect to loss and damage under s 72 of the RL Act. 6The Tribunal's decision was published on 30 November 2012. The Tribunal made the following determination: 1. Allow $1,081.69 to the applicant on sale of stock, this amount to be set off against rent owing by applicant. 2. The applicant breached a fundamental term of the lease being payment of rent. 3. The lessors provided sufficient opportunity for the applicant to remove his goods, fixtures and fittings from the premises. 4. The lessors are not responsible for the damages claimed by the applicant. 5. The applicant's business was interrupted by the activities of another lessee in the arcade for a period of two (2) weeks during October/November 2010 and an allowance for no rent to be payable for this period is to be made by the lessors against outstanding rent. 6. There is insufficient evidence to disclose responsibility for the removal of the forklift from the premises. 7. The actions taken by the lessors to secure the goods and equipment of the applicant were sufficient. 8. The lessors are not responsible for the loss of business damages claimed by the applicant. The applicant was aware as at 26 August 2010 (referred to in his facsimile of that date) of the proposals submitted to the Council which included construction of stairs in the arcade contrary to his evidence that he was not aware of this proposal until February 2011. 9. Each party to pay own costs
History of this appeal 7The appellant lodged his appeal, on 20 December 2012. 8In his Notice of Appeal the appellant said his appeal was made on a question of law and that he was seeking leave to extend his appeal to the merits of the Tribunal's decision. The appellant identified 8 paragraphs in the Tribunal's reasons for decision, which he asserted to have been 'inappropriate' on the basis of the evidence before the Tribunal. 9On 20 December 2012, the Registrar wrote to the parties and advised that the respondent was to file and serve a Notice of Reply to the appellant's appeal within 21 days of receiving the Notice of Appeal. The parties were also informed about the three differing ways in which the appeal would be managed. This included the parties being directed, in writing, to comply with standard directions to lodge and exchange submissions or other material and when this was done, a hearing date would be set. 10On 10 January 2013, the respondent filed and served a Notice of Reply to the appellant's appeal. 11On 21 January 2013, the Registrar wrote to the parties informing them of directions made, in chambers, by Deputy President, M Chesterman, for the filing and serving of written submissions (i.e. appellant to file and serve submissions by 18 February 2013 and the respondent to file and serve submissions in reply by 14 March 2013). 12On 24 January 2013, the appellant filed and served a written response to the respondents' Notice of Reply. 13On 13 February 2013, the Registrar wrote to the parties to inform them that the hearing of the appeal had been set down for half a day, on 5 April 2013. 14On 14 March 2013, the respondent filed and served its written outline of submissions and an affidavit sworn by each respondent. 15On 5 April 2013, the appellant's appeal came before the Appeal Panel for hearing. Deputy President Chesterman was the Presiding Member of the Appeal Panel at that time. Appearing for the appellant was J R Young, of counsel and appearing for the respondents was Mr Carson, solicitor. On the application of the appellant, the Appeal Panel made the following orders: 1. Leave is granted to the Appellant to file an Amended Notice of Appeal. 2. The Appellant is to pay the Respondents' costs thrown away by virtue of the Appellant being granted leave to file an Amended Notice of Appeal. 16The Appeal Panel also made the following directions/orders: 1. The parties are to commence negotiations for settlement of their dispute within 7 days. 2. The Appellant is to file and serve an Amended Notice of Appeal within 21 days. 3. The Respondents are to file and serve a Reply to the Amended Notice of Appeal within a further 14 days. 4. The Appellant is to file and serve his submissions within a further 14 days. 5. The Respondents are to file and serve their submissions within a further 14 days. 6. The matter is set down for hearing at 10 a.m. on 17 June 2013 for half a day. 17There was no compliance with these directions. In particular, the direction that the parties were to commence negotiations for settlement and the appellant to file and serve an Amended Notice of Appeal. The latter direction should have been complied with by 26 April 2013. As a consequence of these failures, the directions for the respondent to file and serving a Reply and written submissions could not be complied with. 18As we have mentioned, on 11 June 2013, more than 6 weeks after the date on which the appellant had been ordered to file and serve his Amended Notice of Appeal and 4 working days prior to the hearing of his appeal, the Tribunal received a letter from the appellant seeking an adjournment of the hearing. In his letter to the Tribunal the appellant said: '... [I] was supposed to submit my submission for the hearing. Because I couldn't arrange the payment for the Legal representative I was not able to prepare the submission. I need more times (sic) to prepare the document. I am looking about 8 weeks from hearing date 17th June to file my documents. I would like to change the hearing date. I would like to pray and hope that you would be kind enough to grant us the Adjournment for the above matter. And thus oblige me.' 19The appellant's letter, we note, was written one week after Mr Carson, on behalf of the respondents, had written to the appellant noting his failure to comply with the 5 April 2013 directions of the Appeal Panel. In his letter, Mr Carson said: '... [You] are in gross default of the Directions given by Mr Chesterman and can only assume that you have abandonded the Appeal. Regardless of what action you may take between now and the 17th June, I give you notice, on instructions from my clients, that when the matter comes before the Appeal Panel on 17th June, I will be making an application that your Notice of appeal be struck out to bring these proceedings to a conclusion. I will also be seeking an order that the costs of the Appeal proceedings be paid by you. 20On 11 June, the appellant emailed a copy of his letter to Mr Carson, who responded at 8:55 a.m. the following morning. In his response, Mr Carson reiterated the position of the respondents as stated in his letter of 4 June 2013 (i.e. his instructions were to appear at the hearing, on 17 June, 'to apply that your Appeal be struck out with an order for costs in favour of my clients.') On the same day (12 June 2013) the appellant faxed a copy of the email exchanges to the Registry of the Tribunal. 21The Registry responded to the appellant's adjournment application, by leaving a message on his mobile telephone number. We note that this is the telephone number the appellant identified as his contact number in his Notice of Appeal. In a handwritten note at the bottom of the applicant's letter, an officer of the Registry has written: 'LEFT MESSAGE FOR MR AL MAHMOOD THAT HE SHOULD ATTEND HEARING ON 17/6/13 & MAKE AN APPLICATION AT THE COMMENCEMENT TO ADJOURN. [signed] 12.6.13 22On 17 June 2013, the commencement of the appellant's appeal was stood down from 10 am to 12 noon. The respondents and Mr Carson, who were present at the Tribunal before 10 am, were advised of the later starting time. The appellant was not present at that time, nor had he communicated with the Tribunal prior to 10 am that morning. 23As the hearing of the appellant's appeal was to commence later that morning, at the request of the Appeal Panel, an officer of the Registry telephoned the appellant to inform him of the later starting time of his appeal. In a file note, dated this day, the Registry officer noted that she had rung the appellant's mobile telephone number at 10:25 am and left a message advising him that the hearing of his appeal would proceed at 12 noon. 24When the matter did proceed at 12 noon, there was no appearance by the appellant. As we have noted, the respondents and their solicitor, Mr Carson, were present and did appear. At the commencement of the hearing Mr Carson objected to an adjournment and formally made an application that the appeal be dismissed and that the appellant pay the respondents' costs for the appeal. As we have noted, at the conclusion of the hearing, we reserved our decision. 25Subsequent to having reserved our decision, at 12.55 p.m., the Registry received, by facsimile, a letter from the appellant and a copy of a medical certificate dated that day. We have dealt with the content of the letter and medical certificate below. A copy of the letter and medical certificate were forwarded to the respondents. On 24 June 2013, Mr Carson wrote to the Tribunal, noting that the appellant's letter and medical certificate were received after the conclusion of the hearing and it was assumed that the letter and medical certificate would not be taken into consideration in the deliberations of the Appeal Panel in regard to his clients' dismissal application.
Consideration 26As we have noted, there are two applications for determination. These are the applicant's application for adjournment and the respondents' application for dismissal. 27The Tribunal's procedural powers are set out in Chapter 6 of the ADT Act. These powers apply to proceedings before the Appeal Panel of the Tribunal as well as first instance proceedings before a single Judicial Member of the Tribunal or a first instance panel of Judicial and Non-Judicial Members of the Tribunal. 28The relevant provision in regard to procedure generally is contained in s 73 of the ADT Act. That section provides: 73 Procedure of the Tribunal generally (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. (5) The Tribunal: (a) is to act as quickly as is practicable, and (b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (d) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (e) may require a document to be served outside the State, and (f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (g) may dismiss at any stage any proceedings before it in any of the following circumstances: (i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate, (ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings, (iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and (h) may reinstate proceedings that have been dismissed because of an applicant's failure to appear if the Tribunal considers that there is a reasonable explanation for that failure. (5A) An application made to the Tribunal to reinstate proceedings under subsection (5) (h) must be made: (a) within 28 days after the Tribunal dismissed the proceedings that are sought to be reinstated, or (b) within such further time as the Tribunal may allow. (6) A judicial member may: (a) hold a directions hearing in relation to any proceedings before the Tribunal, or (b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal.
(a) Adjournment application 29It is convenient to first deal with the appellant's adjournment application. The essence of the appellant's adjournment application is an adjournment of the hearing so that he can comply with the orders made on 5 April 2013. There is no dispute that the Tribunal has the power to make the orders sought. It is a discretionary power which must be exercised having regard to the procedures of the Tribunal generally (i.e. to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms and to act as quickly as is practicable). 30We have considered all the material before us, including the correspondence received from the appellant after we had concluded the hearing and reserved our decision. We have not sought further written submissions from the respondents as we have found, on the material before us, the appellant has failed to provide a satisfactory explanation for (a) his failure to comply with the orders made by the Appeal Panel on 5 April 2013 and (b) his failure to appear at the hearing on 17 June 2013. 31In regard to his failure to file and serve his Amended Notice of Appeal within time (i.e. by 26 April 2013), the appellant asserts he was unable to do so because he could not arrange for the payment for legal representation. In our view, the appellant's explanation, made so close to a hearing and many weeks after the date on which orders were to be complied with is entirely unsatisfactory. He knew many weeks ago that he would be in default of complying with the orders made on 5 April and yet he made no effort to inform the respondents, or the Tribunal of this and seek appropriate orders. He had every opportunity to do so. Given the timing and nature of the appellant's explanation, we are also left with the impression that his application for adjournment and an extension of time in which to file and serve his Amended Notice of Appeal is more one of convenience rather than having any real substance. 32During the course of the hearing, Mr Carson advised that no negotiations had taken place as ordered by the Appeal Panel on 5 April 2013. Mr Carson said that other than a brief discussion, in passing, with the appellant's former counsel, no negotiations were undertaken. We understood Mr Carson to say that counsel for the appellant indicated that the appellant was not interested in any negotiations unless the respondents were willing to pay him some money. 33The appellant has initiated this appeal and it is incumbent on him to prosecute it expeditiously. In our view, the appellant has failed to do so and in the absence of providing a satisfactory explanation for that failure, it is appropriate to refuse his application to extend time within which to file and serve an Amended Notice of Appeal. 34As a consequence, in the ordinary course of events, the hearing would proceed on the appellant's current Notice of Appeal. In the absence an appearance by the appellant, on 17 June, the respondents' application for dismissal at the commencement of the hearing and our decision to make the orders sought, it is unnecessary for us to deal with the appellant's adjournment application. However, on the basis of the material before us, had the appellant appeared on 17 June 2013, we would have refused his application for adjournment.
(b) Dismissal application 35As can be seen from the terms of para 73(5)(g) of the ADT Act, the power to dismiss proceedings (including an appeal) is discretionary, even where the matters prescribed in para 73(5)(g)(i) to (iv) of the ADT Act have been met: see Sullivan v State of New South Wales (NSW Police Force) [2009] NSWADT 2 at [17]. In this appeal the relevant paras are 73(5)(g)(iii) and (iv): i.e. failure to appear and want of prosecution. 36In Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [40], Acting Chief Justice Allsop pointed out that the power to dismiss/strike out proceedings for default is not intended to be used to punish a litigant. Instead a court is required to act in accordance with the dictates of justice. These remarks were made in the context of the exercise of a dismissal power, in subs 61(3) of the Civil Procedure Act 2005 (CP Act), where a party to court proceedings has been in default. S 58 of the CP Act sets out what is meant by the dictates of justice. To the extent relevant, that section provides: 58 Court to follow dictates of justice (1) ... (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 37S56 of the CP Act sets out the overriding purpose of that Act and the Rule made pursuant thereto. Subs 56(1) of that Act, provides that the overriding purpose is to 'facilitate the just, quick and cheap resolution of the real issues in the proceedings.' As noted above, para 73 (5)(a) of the ADT Act requires the Tribunal to act as quickly as is practicable and subs 73(3) requires the Tribunal to act with as little formality as the circumstances of the case permit. 38S57 of the CP Act sets out the objects of case management of proceedings before a court. It provides: 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 39Although the Tribunal is not a 'court' under the CP Act, in our view, the requirement of the above dictates of justice in the CP Act are a useful guide to the exercise of the Tribunal's dismissal power in para 73(5)(g)(iii) and (iv) of the ADT Act. That guide, must of course be applied in the context of the express requirements of 73 of the ADT Act. 40Failure to appear - There can be no question that the appellant failed to appear at the hearing of his appeal. On the material before us, the appellant was at all times fully aware of the hearing date. Even though the appellant wrote to the Registry seeking an adjournment, he knew that the respondents opposed the application and would be making a dismissal application at the commencement of the hearing. He also knew that no orders for an adjournment had been made and that he was required to appear on the scheduled day. Yet the appellant failed to communicate any further with the Tribunal or the respondent. It was not until after the Registry had contacted him on the morning of the hearing that the appellant communicated with the Tribunal. That communication, in our view, was too late and also an unsatisfactory explanation as to why he failed to appear. 41In his covering letter the appellant said he could not attend the hearing that day because he 'had been suffering from a virus flu and cold for few days' and he again sought an adjournment of the hearing of his appeal. The medical certificate, provided by the appellant in support of his contention, said as follows: Medical Certificate This is to certify that [the appellant] is receiving medical treatment and for the period Monday, June 17, 2013 TO Wednesday, June 19, 2013 INCLUSIVE in my opinion [the appellant] will be unfit to continue His usual occupation/school for the above period inclusive. Common Cold This Certificate was completed on 17th June 2013. 42In our opinion, the applicant's explanation of his absence to appear and the medical certificate, do not provide a valid rationale or explanation for his absence at the hearing of his appeal, on 17 June 2013: see Magjarraj v Asteron Life Pty Ltd [2009] NSWSC 1433 at [22] and [23] and Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94 at [4]. 43The medical certificate is very 'cryptic' and fails to explain the state of the appellant's health as he presented that morning and the extent, if any, to which the doctor formed an opinion about the appellant's lack of fitness to attend the hearing that morning. Indeed no reference is made to the appellant's ability to appear before the Tribunal that day. We can only assume that the appellant did not mention this to the doctor who signed the certificate. Alternatively, if he did mention it, the doctor was not of the opinion that the appellant was unfit to appear before the Tribunal that day. 44What is of concern is the appellant's failure to communicate, prior to 10am that morning, of his inability to attend. This he did not do until several hours after the Registry had contacted him at 10.25 am that morning. 45As the date of the appellant's appeal was set at a time that was convenient to both parties and the appellant has failed to provide a proper basis for his failure to appear, in our view, it is appropriate to make the order sought (i.e. dismiss the appeal for non appearance). We note that in making this order, the appellant still has a right to seek the reinstatement of his appeal, if he can provide a reasonable explanation (other than the one provided to date) of his failure to appear. 46Want of prosecution - The respondents' application for a dismissal on the grounds of want of prosecution is based on the appellant's failure to comply with the orders made on 5 April 2013 and his failure to appear at the hearing. 47We are not persuaded that these defaults, in the circumstances of this appeal, are such to warrant a dismissal on the grounds of want of prosecution. A dismissal under this ground we note would finally dispose of this appeal. 48As we have explained above, the appellant's failure to file and serve an Amended Notice of Appeal did not mean that his appeal could not have proceeded to a hearing on 17 June 2013. It would have proceeded on the basis of the appellant's Notice of Appeal, as file in December 2012. In this regard, we note, at no time did Mr Carson make a submissions that the appellant's appeal as set out in this Notice of Appeal should be dismissed on the grounds of being misconceived or lacking substance. Nor have we considered or examined this issue. 49In regard to the appellant's failure to appear, in our view this is more appropriately dealt with under the dismissal power in para 73(5)(g)(iii) of the ADT Act. 50Accordingly, we make no order under para 73(5)(g)(iv) of the ADT Act.
Costs 51As we have mentioned, the respondents also seek an order that the appellant pay their costs of this appeal. 52S 77A of the RL Act gives the Tribunal power to award costs, under section 88 of the ADT Act, in respect of an application (i.e. retail tenancy claim) made under the RL Act. This appeal clearly relates to an application of this nature. 53Under subs 88(1) of the ADT Act, the general rule is that each party pay its own costs. 54Subs 88(1A) provides that the Tribunal may award costs, 'but only if it is satisfied that it is fair to do so' having regard to the matters prescribed in para (a) to (e) of that subsection, which relevantly provide: 88 Costs ... (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. (1) The Tribunal may: ... 55On the basis of the appellant's failure to comply with the orders made on 5 April 2013 and his failure to appear on 17 June 2013, we are satisfied that it is fair to make an order that the appellant pay the respondent's costs. The respondents sought their costs of the appeal, which Mr Carson indicated to be $4,000. In light of the cost order made by the Appeal Panel on 5 April 2013, in our view, the appropriate order is an order for the respondent costs in appearing on 17 June 2013. Those costs we determine to be an amount of $1,000.
Orders 56For the reasons set out above, we make the following orders:
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: 10 July 2013
Al Mahmood
Christofi
1. The appellants' application for an extension of time within which to file and serve an Amended Notice of Appeal is refused. 2. The appellant's appeal is dismissed pursuant to paragraph 73(5)(g)(iii) of the Administrative Decisions Tribunal Act 1997. 3. The appellant to pay the respondents' costs in the amount of $1,000.00.