What happened
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.
Why the court decided this way
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.
Before and after state of the law
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.
Key passages with plain-English translation
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.
What fact patterns trigger this precedent
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.
How later courts have treated it
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.
Still-open questions
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.