Bousgas v H.D. Constructions

NCAT Appeal Panel|2017-05-03

Introduction

This is an appeal from a decision of the Tribunal in the Consumer and Commercial Division in respect of home building application HB 15/33768.
As is indicated by the application number, those proceedings were commenced in 2015, the application being filed on 18 May 2015. The applicant was the appellant, Mr Bousgas, the home owner of residential premises located at Seaforth. The respondent was the builder.
On, on 25 January 2017, the Tribunal made the following order: 2. The application is dismissed because the applicant has failed to comply with directions of the Tribunal and not prosecuted the application in accordance with the guiding principle of the Tribunal.
The orders made by the Tribunal indicate that oral reasons were given as to why the proceedings were dismissed. A sound recording of the hearing on 25 January 2017 was not available. Consequently, the Appeal Panel does not have a transcript of these reasons or what occurred at the hearing on 25 January 2017.
However, it is apparent that a request for written reasons was subsequently made. While the application for written reasons was made out of time, the Tribunal extended the time for that application and published written reasons dated 22 March 2017.
The appellant appeals against the order dismissing his application.
For the reasons set out below, we have decided to allow the appeal, set aside the dismissal order, remit the proceedings for rehearing and make directions to facilitate a final hearing as soon as possible.

Grounds of appeal and evidence

On 10 February 2017 the appellant filed a Notice of Appeal dated 9 February 2017. That Notice of Appeal contained a single ground in the following terms: The decision was a denial of natural justice and procedural fairness, in that the Applicant was in default for no reason of his making. The Appellant was not, on 25 January 2017 in a position to offer any evidence from the application.
The appellant sought the following orders: Vacate the orders by senior member Boyce 25 January 2017, Order a strict timetable in the matter. Appoint a date for hearing, reserve the costs of the appeal.
The respondent filed a Reply to Appeal. The respondent said leave to appeal was required. The respondent's reply can be summarised as follows: 1. The appellant's assertion it was not in default of directions made by the Tribunal is inaccurate; 2. No explanation was provided by the appellant at the hearing on 25 January 2017 as to why the Tribunal's directions had not been complied with; 3. The fact the appellant was not in a position to offer any evidence on the application on 25 January 2017 is an issue between the appellant and its legal advisor, not a failure attributable to the Tribunal. In this regard the respondent referred to the guiding principle found in s36 of the Civil and Administrative Tribunal Act, 2013 (NCAT Act) and to the obligations cast upon the appellant's legal representative and said that any failure or non-compliance of a legal representative is not an excuse. 4. The respondent said leave to appeal should not be granted, that it had expended significant monies in defending the appellant's claims and that there had been "a long history of repeated non-compliance by the appellant with the Tribunal's orders and procedural directions both before and after he was legally represented" 5. The fact the appellant's Counsel was not advised that the hearing on 25 January 2017 was a show cause hearing did not mean any substantial miscarriage of justice had occurred.
Each of the parties provided evidence by way of affidavits from various legal practitioners involved in the proceedings. The evidence was as follows:
For the appellant: 1. affidavit of Gary Stewart, the solicitor for the appellant with the carriage of the matter, sworn 9 February 2016; 2. affidavit of David Burwood, Counsel appearing for the appellant at the hearing on 25 January 2017 and also at an earlier hearing on 25 October 2016 to which we will refer below, sworn 15 February 2017.
For the respondent: 1. statement of Susan Hutchings, the solicitor for the respondent with the day-to-day carriage of the matter, dated 20 February 2017; 2. further statement of Ms Hutchings dated 11 April 2017.

Submissions and hearing of the appeal

The Appeal was fixed for hearing to commence at 10:15am on 3 May 2017 in accordance with directions made by the Appeal Panel on 21 February 2017.
At the commencement of the hearing, the respondent appeared by its Counsel Mr Young. However, there was no appearance by the appellant, his solicitor or his Counsel. This was despite there being an earlier dispute concerning whether Mr Bland of Counsel should be given leave to represent the appellant. This dispute, which involved a contested interlocutory application, was resolved by the Tribunal in orders made on 28 April 2017. Those orders granted leave to the appellant to be legally represented, there being no condition imposed to prevent Mr Bland from appearing.
In consequence of the failure of the appellant to appear on time, the Appeal Panel and the respondent's solicitor made various telephone calls, including to Mr Bland of Counsel who had appeared at an earlier directions hearing. The appeal was then adjourned for a short period of time, at which Mr Bland confirmed he had instructions to appear for the appellant and did so by telephone.
The Appeal Panel then proceeded to hear the appeal.
At the hearing of the appeal the appellant was given leave to amend the Notice of Appeal to include a ground that the discretion to dismiss the proceedings miscarried. This order was made by consent and the respondent's costs of the amendment were reserved. This was necessary because it was apparent from the submissions the appellant lodged in its Appeal Book on 4 April 2017 that it was asserting the Tribunal had not had regard to material considerations relevant for the exercise of the discretion to summarily dismiss the proceedings. Similarly, it was apparent from the submissions made by the respondent at the hearing of the appeal that a question to be determined was whether or not there was an error of law of the type described by the High Court of Australia in House v The King [1936] HCA 40; (1936) 55 CLR 499 arising from the manner in which the Tribunal had exercised its discretion.
The parties provided written submissions prior to the hearing and made oral submissions.
Both parties agreed that the decision of the Tribunal dismissing the application was an interlocutory decision within the meaning of the NCAT Act for which leave was required. Each of the parties made reference to the history of the proceedings and made submissions concerning the fact that various directions made by the Tribunal had not been complied with although there was a dispute concerning who was in default and when.
The appellant's submissions can be summarised as follows: 1. The proceedings before the Tribunal relate to a claim by a homeowner that the builder has breached the statutory warranties applicable under the Home Building Act, 1989 (HB Act). 2. The proceedings had previously been listed for hearing on 25 October 2016. At that time the proceedings were to be heard with a related claim brought by the respondent against its subcontractor, Mr Santo. 3. The proceedings were adjourned on 25 October 2016 because the appellant sought to join Mr Santo to his application in consequence of the withdrawal of the respondent's proceedings against Mr Santo. In adjourning the proceedings the Tribunal made directions requiring the appellant to serve points of claim upon Mr Santo and other directions to facilitate a hearing at a future date. 4. The proceedings had been delayed by reasons caused by the respondent including the withdrawal of the respondent's proceedings against Mr Santo on 25 October 2016. 5. The application had been subsequently fixed for final hearing on 2 March 2017. 6. On 25 January 2017, Mr Burwood of Counsel appeared at a hearing on behalf of the appellant. He has given evidence in the appeal that he was unaware that the proceedings had been listed for a dismissal application on the motion of the Tribunal. He made submissions on behalf of the appellant at the hearing on 25 January 2017 that the appellant wished to serve further evidence however this would not affect the hearing date. 7. Rather than allowing this to occur, the Tribunal incorrectly dismissed the application for want of prosecution. 8. The appellant relied on the decision of the High Court in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 and said that the Tribunal failed to take account of the appellant's inability to safeguard its own interests in circumstances where any default which occurred arose out of the conduct of the legal representative. In this regard the appellant relied upon an affidavit from his solicitor, Mr Stewart. He provided evidence that his daughter had been extremely ill for a long period of time which had prevented him from being able to attend his obligations in the conduct of his legal practice, and in particular in complying with the directions which the Tribunal had made. 9. The appellant said that his evidence had previously been filed and the Tribunal could have refused leave to file and serve any additional evidence. However, the Tribunal should not have made an order dismissing the application and preventing the claim from proceeding to the final hearing which was already fixed for 2 March 2017. 10. The appellant also said that the limitation period to bring a further application had not expired and accepted that, despite the order dismissing the proceedings, new proceedings could be commenced (a matter also accepted by the respondent on appeal). However, the appellant said that a substantial issue would arise in relation to costs because the respondent would be entitled to recover all costs in relation to the dismiss proceedings. 11. In the circumstances, the appellant says, Tribunal's discretion miscarried.
In reply, the respondent made the following submissions: 1. The characterisation by the appellant of the events which occurred on 25 October 2016 and the suggestion that the respondent was the cause of any delay at that time should be rejected. The appellant chose to join Mr Santo to his proceedings and it was this conduct that caused the need for the adjournment. In its decision to dismiss the appellant's application the Tribunal found at [35] that "the failure to be ready for the matter to proceed on the hearing date (namely 25 October 2016) was apparently caused by the failure of the applicant to properly consider parties to the proceedings". 2. Insofar as the appellant seeks to excuse any non-compliance with directions or delay upon the actions of his solicitor Mr Stewart, any explanation concerning events immediately prior to 25 January 2016 does not take account of a long history of non-compliance by the appellant in prosecuting his claim. Consequently, the principles in Jackamarra do not assist the appellant in this case. 3. An examination of the Tribunal's reasons for decision confirms a history of non-compliance. 4. Contrary to the decision in the Notice of Appeal, there has been no relevant denial of procedural fairness. 5. There has been no challenge to the adequacy of reasons of the Tribunal in dismissing the application and there has been no relevant error made of a type set out by the High Court in House v the King. 6. The respondent also made reference to the decision of the Appeal Panel in Wall v Barham [2017] NSWCATAP 61, particularly at [31] where the Tribunal said by reference to the decision of the High Court in Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 239 CLR 175: Procedural fairness does not require a tribunal to provide limitless opportunities to prepare and be heard… Case management principles are an important practical aspect of concepts of accessibility and justice. Time and cost are not considerations that affect individual parties. They affect the justice system as a whole 1. The respondent also accepted the principles set out by the Appeal Panel in Mesiha v Murrell [2017] NSWCATAP 1 at [45]. 2. The respondent then submitted that the Tribunal could not have been satisfied that the proceedings were otherwise ready for hearing and the appellant's application to adduce further evidence was antithetical to this proposition. 3. The respondent referred to the decision of the Appeal Panel in Kline v New South Wales Land and Housing [2014] NSWCATAP 41 and said that the appellant had had a reasonable opportunity to be heard. 4. There is no prejudice, in the sense that the proceedings can be recommenced, the only real prejudice arising in relation to costs. 5. In these circumstances leave should be refused because no substantial injustice has been demonstrated.
In making these submissions, the respondent accepted that the parties had in fact filed and served evidence in support of their respective positions which had been available to the Tribunal on 25 October 2016, when the proceedings were originally adjourned.

Consideration

It is common ground that this is an appeal from an interlocutory decision as defined by s4 of the NCAT Act and that leave to appeal is required by reason of s 80(2)(a) of the NCAT Act.
In Collins v Urban [2014] NSWCATAP 17 at [80] and following the Appeal Panel set out the principles applicable for the grant of leave. More recently, in connection with an appeal against an interlocutory decision summarily dismissing various claims, the Court of Appeal of the Supreme Court of New South Wales said in Clarke v State of New South Wales [2015] NSWCA 27 at [18]-[21]: 18. …. The question whether leave should be granted, including whether an extension of time should be granted for the filing of the summons insofar as it relates to the proposed appeal from the decision to dismiss the conspiracy proceedings, requires the Court to consider whether substantial reasons have been shown to allow appellate review of the respective interlocutory decisions: see Collier v Lancer (No 2) [2013] NSWCA 186. 19. Appellate courts exercise caution in reviewing interlocutory decisions, for the reasons explained in Williams v Director General of the National Parks & Wildlife Services [2002] NSWCA 176 at [36]. Where the decision challenged is a discretionary interlocutory decision, the task of an applicant seeking leave to appeal is recognised as being a difficult one: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [73]. 20. On the present application, Mr Clarke must demonstrate something more than that conclusions the primary judge reached in the exercise of her Honour's discretion pursuant to UCPR 14.28 and 13.4 were arguably wrong: Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]. To succeed in challenging the exercise of such a discretion, he must establish an error in the House v The King sense (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5), namely that her Honour made an error of legal principle and/or a material error of fact, took into account an irrelevant consideration, failed to take into account, or give sufficient weight to, a relevant consideration or arrived at a result so unreasonable or unjust as to suggest such an error: see also Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45]. 21. Leave to appeal will not be granted in respect of interlocutory decisions where the appeal is doomed to fail: Young v Hones (No 2) [2014] NSWCA 338 at [63].
The Tribunal dismissed the proceedings because "the applicant has failed to comply with directions of the Tribunal and not prosecuted the application in accordance with the guiding principle", not because the appellant was causing disadvantage of the type referred to in cl10 of Sch4 of the NCAT Act. This is clear from the fact that the Tribunal does not undertake an evaluation of the factors required to be considered under cl10(3) of Sch 4.
The power to dismiss a proceeding for want of prosecution is found in s55(1)(d) of the NCAT Act. This power is discretionary in its nature.
The principles applicable in deciding whether proceedings should be dismissed for want of prosecution were summarised by the Supreme Court of New South Wales in Hoser v Hartcher [1999] NSWSC 527. In that case, Simpson J said at [19] and following: 19. It seems to me that the following principles are relevant to the exercise of the discretion to strike out for want of prosecution. The list is not intended to be exhaustive: (1.) the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 F (Court of Appeal); Razvan v Berechet, unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited, unreported, 19 November 1995, per Sperling J; (2.) the discretion should be exercised only in a clear case where it is manifestly warranted; Razvan, per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion: Stollznow v Calvert at 751 D; (3.) any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited, unreported, 16 December 1994, per Levine J; (4.) personal blamelessness on the part of a plaintiff(as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73. (5.) a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing, trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. If the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant's case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complain of the plaintiff's earlier inactivity: Calvert v Stollznow, 1 April 1980, Ritchie's Supreme Court Procedure, (NSW) Vol 2, para 13, 022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p 753; Vilo, p 10; McBride v Australian Broadcasting Corporation, unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Limited, unreported 25 July 1997, per Levine J; Hart v Herron, unreported, 3 June 1993, Court of Appeal per Priestley JA; (6.) delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor: Calvert v Stollznow, per Cross J; Burke v TCN. But in my view, this circumstance must be treated with some caution. The weight that can be accorded to that delay is limited. Where an action is commenced within the period provided for by an applicable statute of limitations, it would not ordinarily be appropriate to take that period into account. However, if a plaintiff has delayed significantly in the commencement of the proceedings, and that delay is followed by further lethargy in the advancement of the proceedings, the effect of the initial (but permissible) delay is compounded. The real question is not the length of the delay, but the impact that delay has upon the defendant's capacity properly to defend the plaintiff's claim. That will be a question of fact in each case. While there may be some prejudice presumed by reason of the passage of time, much will depend upon the nature of the proceedings, and the identification of the issues involved in the litigation. Where, for example, at the close of pleadings it can be seen that there are disputed questions of fact dependent upon the oral evidence of witnesses, or their recollections, the prejudice will plainly be greater than in cases that depend essentially upon the application of legal principle to largely undisputed facts, or upon disputed questions of fact that will be resolved by reference to documentary or other objective evidence not likely to be affected by the effluxion of time; (7) the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise; (8) prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke, supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff's personal responsibility for the delay is an important factor as is any explanation provided for the delay; (9) what the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. A defendant who has not interviewed witnesses, taken statements or collected documents, after being served with the claim, has a less meritorious complaint about the effect of prejudice caused or presumed by reason of delay: McBride v ABC, unreported, 6 November 1998, per Levine J; (10) the plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out: Razvan, per Kirby P; (11) the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice.
This decision was made before the introduction of the Civil Procedure Act, 2005 (CP Act) and s56 of that Act which require a court to "facilitate the just, quick and cheap resolution of the real issues in the proceedings".
In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 227 ALR 425; (2006) 80 ALJR 1100, the majority of the High Court of Australia said at [65]-[69]: 65. The "right" of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process. 66. Birkett v James concerned a second action commenced in anticipation that a strike-out motion, for want of prosecution, would dispose of the first action. Lord Diplock said that in such a situation [93]: "[E]xceptional cases apart, where all that the plaintiff has done has been to let the previous action go to sleep, the court in my opinion would have no power to prevent him starting a fresh action within the limitation period and proceeding with it with all proper diligence notwithstanding that his previous action had been dismissed for want of prosecution". 67. What those "exceptional cases" might include was not explored beyond the possible example given by Lord Diplock of Spring Grove Services Ltd v Deane [94], but it is apparent from other passages [95] that "contumelious disregard" by a plaintiff in observance of the more important steps in the preparation of the action for trial could enliven the exercise of the inherent power of the court. Such default was not relied on in Birkett v James [96] itself. However, it is upon this footing that the present plaintiff points to a requirement of "oppressive conduct", to its conceded absence in this case, and to consequent error in principle by the Court of Appeal. 68. The decisions in England since Birkett v James were analysed recently and in detail by the New Zealand Court of Appeal in Bank of New Zealand v Savril Contractors Ltd [97]. It is unnecessary to repeat what is there said, beyond making one point. This is that, as exemplified by the decision of the English Court of Appeal in Securum Finance Ltd v Ashton [98], the new Civil Procedure Rules have been taken in England as giving a wider scope for the use of principles of abuse of process in dealing with dilatory plaintiffs. It has been suggested that the significance of Birkett v James has been "overtaken" by the strictures of the new procedural code [99]. 69. The descriptions, rather than definitions, given in this Court and set out earlier in these reasons post-date Birkett v James and do not provide any ground for a requirement of oppressive conduct by the plaintiff. Rather, as in the circumstances of the present case, attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by lapse of time. The Court of Appeal held that this was so serious that a fair trial was not possible. The result was that to permit the plaintiff's case to proceed would clearly inflict unnecessary injustice upon the defendants.
Subsequently, in State of New South Wales v Plaintiff A [2012] NSWCA 248, Basten JA said at [17]-[18]: 17. Although there is authority for the proposition that a court should be reluctant to exercise the power of summary dismissal without a hearing on the merits absent intentional and contumelious default on the part of the plaintiff, or inordinate or inexcusable delay, giving rise to a substantial risk that a fair trial would not be possible - see Birkett v James [1978] AC 297 at 318 - the stringency of that principle has been diminished by the enactment of ss 56-60 of the Civil Procedure Act. Further, a proceeding will involve an abuse of process in circumstances where the objective effect of the lapse of time since the cause of action arose is to render a fair trial impossible, despite the absence of any moral delinquency, oppressive conduct or misconduct on the part of the plaintiff: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [69]-[70]. 18. Despite the fact that misconduct on the part of a plaintiff is not a precondition to a finding of abuse of process, the reasons for any delay are relevant considerations. Thus, it would be a rare case in which a defendant could complain of unfairness where the delay was in large part due to the defendant's own behaviour. By parity of reasoning, a court is likely more readily to find an abuse of process where there is culpable misconduct on the part of a plaintiff.
As is clear from these comments, the requirements of s56 of the CP Act is itself a matter to be taken account of in determining whether proceedings should be dismissed for want of prosecution.
Similarly, s36(1), (3) and (4) and s38(5)(c) of the NCAT Act impose obligations on the Tribunal and the parties which must be taken account of in considering whether to make an order to dismiss proceedings for want of prosecution under s55(1)(d) of the NCAT Act.
It is in the context of these principles that the decision of the Tribunal must be evaluated.
As is apparent from the order the Tribunal made, which is set out above, the application was dismissed for non-compliance with directions and a failure to prosecute the application.
The application to dismiss was on the Tribunal's own motion. The hearing on 25 January 2017 was fixed following directions made by the Tribunal on 21 December 2016. Those directions were in the following terms: The Tribunal has directed that this matter be listed for further directions. The reasons for listing the matter for directions is the apparent non-compliance with directions made on 26 October 2016 by the applicant, first respondent and second respondent. A party should be in a position at the directions hearing to address the issue of why the application should not be struck out for the failure to comply with directions and the parties failure to comply with guiding principle of the Civil and Administrative Tribunal Act 2013.
The application was heard on 25 January 2017 and oral reasons given on that date. As indicated above, there is no sound recording of the hearing. Evidence (if any) provided prior to or given at that hearing has not been provided to the Appeal Panel. However it would appear that any evidence that was provided did not include the evidence previously filed by the parties in relation to the substantive proceedings.
The Tribunal provided oral reasons at the hearing. This fact is recorded in the orders made on that date: see "order" 4. Subsequently written reasons were provided following a request by the appellant.
In those written reasons, after recounting a history of what occurred up until the proceedings were adjourned on 25 October 2016, the Tribunal, at [31] and following provided the following reasons for dismissing the application: 31. On 26 October 2016 the Tribunal adjourned the hearing and at the request of the owner joined Michael John Ribiero Santo as a second respondent and made directions readying the proceedings for hearing. 32. The owner, builder and second respondent failed to fully comply with the directions made on 26 October 2016. 33. On 21 December 2016 the Tribunal directed that the parties appear at a direction hearing on 21 January 2016 and address the apparent non-compliance with the directions of the Tribunal made on 26 October 2016 and why the proceedings should not be struck out for failure to comply with directions and the guiding principle of the Tribunal. 34. The owner contended that the delay in the compliance by the owner was caused by his solicitor's failure to act in response to the Tribunal's directions and on his instructions. The owner submitted that he had contacted his counsel direct because he was concerned about his solicitor's inactivity in progressing his claim. It was always open to the owner to withdraw those solicitors' instructions when he was aware that the solicitor had not complied with the direction of the Tribunal. 35. Directions made by the Tribunal on 12 July 2016 directed that an adjournment would only be granted in exceptional circumstances. The Tribunal listed the matter for hearing on 25 and 26 October 2016, only to be adjourned because of the late joining of another party by the owner, who then ultimately withdrew that claim at the directions hearing on 25 January 2017. The failure to be ready for the matter to proceed on the hearing date was apparently caused by the failure of the applicant to properly consider the parties to the proceedings. Notwithstanding the direction of the Tribunal the proceedings were adjourned and again directions were made to ensure the matter would be ready to proceed on the hearing date to be allocated. 36. The cause for the delay in bringing the proceedings to hearing rests with the applicant and his failure to comply with directions. 37. On 25 January 2017 the Tribunal removed the second respondent Michael John Ribiero Santo from the proceedings, dismissed the application because the owner had failed to comply with directions made by the Tribunal throughout the proceedings and failed to comply with the prosecution his application in accordance with the guiding principles of the Tribunal and that the owner pay the costs of the builder.
The reasons do not record that the respondent supported the application nor do they record the respondent's submissions in relation to the application. Rather, the only submission recorded was that of the owner who contended through Mr Burwood that his delay in compliance was caused by "his solicitor's failure to act in response to the Tribunal's directions and on his instructions".
Further, other than recording the directions made, the reasons do not identify the evidence before the Tribunal which was considered in arriving at its conclusions, in particular the nature and extent of the applicant's default.
On the dismissal application, apparently neither party tendered the evidence that had in fact been filed and served by each of them in relation to the substantive proceedings. Similarly, neither party tendered this evidence to the Appeal Panel on appeal. However, it is clear from what both parties have said on appeal that there was evidence which had been served by the appellant in support of his claim prior to 25 January 2017. Indeed it seems clear from what we have been told that this evidence was served prior to 25 October 2016.
The Tribunal does not appear to have considered the fact that the appellant had previously filed evidence in support of his claim and was apparently in a position to proceed with his claim against the respondent on 25 October 2016, an adjournment only being requested to make a direct claim against Mr Santo in consequence of the respondent withdrawing its claim against Mr Santo.
Lastly, the Tribunal does not appear to have considered the proceedings were otherwise listed for final hearing on 2 March 2017.
In our view, these matters demonstrate a failure of the type referred to in House v The King by the Tribunal to properly exercise its discretion. This is because the Tribunal has failed to have regard to or give proper weight to those matters identified in Hoser that it was required to consider before dismissing the application.
The facts in this case seem clear: 1. The dispute between the appellant and the respondent had been fixed for hearing on 25 October 2016. At that time all evidence had been filed by the parties in relation to the dispute between themselves. There was no evidence to suggest that the dispute between the appellant and the respondent could not have been heard and determined at that time. 2. The only reason the hearing was adjourned from 25 October 2016 was because the appellant decided at that time to join Mr Santo as a party. Ultimately Mr Santo was removed as a party. While the appellant might be responsible for the delay of the hearing which was adjourned because Mr Santo was joined as a party and then removed, this fact does not demonstrate there has been a want of prosecution in relation to the appellant's claim against the respondent. 3. There is no relevant prejudice which the respondent has identified it suffered or which the Tribunal has found to have existed to prevent a fair hearing of the real issues in dispute. Also, it is hard to see why any prejudice could not be dealt with by way of appropriate costs orders. Further, and in any event, the Tribunal found that both the appellant and the respondent had some responsibility for failing to comply with the Tribunal's directions: see decision at [32]. 4. The proceedings were fixed for hearing on 2 March 2017, some 5 weeks after the Tribunal's motion to dismiss the proceedings for want of prosecution was listed. No reasons were given as to why the hearing date had to be vacated or why the case was in such a state of unreadiness that it could not proceed on the appointed date.
The courts have made clear that unless the conduct of a party amounts to an abuse of process or is clearly of a type that shows delay causing prejudice to the other party proceedings should not be dismissed for want of prosecution. In may be accepted that these principles have been modified by, and that account must be taken of, the obligations cast upon the Tribunal and the parties to ensure that the real issues in dispute are resolved in a just, quick and cheap manner. However, in the present case, where evidence has been prepared by both parties and where there is no suggestion that there is not an issue to be tried in respect of the matters raised by that evidence, in our view it was inappropriate to make an order to dismiss proceedings for want of prosecution.
As we indicated above, this is not an application made under cl10 of Sch 4 in which it has been determined the appellant has unreasonably disadvantaged the respondent by his "conduct (including by failing to comply with an order or direction of the Tribunal). Rather, it is an application to dismiss the proceedings for want of prosecution.
The matters we have identified, when considered in the context of the cases to which we have referred, clearly show that there has not been a want of prosecution by the appellant and there is no obvious injustice to the respondent in what has occurred that would prevent a fair hearing.
Accordingly, we are satisfied the Tribunal's discretion has miscarried.
In reaching this conclusion, we do not wish to be taken as saying that the appellant and/or his solicitor have not been in significant default of the Tribunal's orders and directions for the preparation of this matter for hearing. Nor do we wish to be taken as saying the appellant has not delayed the final resolution of these proceedings by reason of decisions which he has made in respect of the prosecution of his claims.
The history of these proceedings and the evidence filed by the solicitor for the appellant shows the appellant's solicitor failed to carry out work on a timely basis for the purpose of ensuring the appellant complied with directions of the Tribunal. However, the evidence before the Appeal Panel also shows that the appellant himself or other lawyers who have been acting on his behalf also have responsibility for the defaults which have occurred. As the Tribunal pointed out, despite the personal difficulties which Mr Stewart has had in respect of his daughter, the appellant was well aware of the directions which the Tribunal has made and also had counsel retained to act on his behalf. As such, the appellant was able to protect his interests as he did on 25 January 2017 by briefing counsel directly. There is no reason why he could not have done so at a much earlier stage or, as the Tribunal pointed out, sought to retain different lawyers to prepare evidence and comply with directions in light of the fact that Mr Stewart did not appear to have the capacity to undertake necessary legal work on a timely basis.
This conduct has continued in relation to the preparation of the appeal, as demonstrated by what occurred at the commencement of the hearing of the appeal.
These observations are, of course, relevant to issues of costs. They are also relevant to whether or not the appellant has conducted the proceedings in a manner which causes disadvantage to the respondent. However, dismissal on the ground the appellant was causing disadvantage to the respondent was not the application with which the Tribunal was dealing on 25 January 2017.
On the other hand, as pointed out by Mr Bland at the hearing of this appeal, if the matter had been dealt with by the Tribunal on this basis at the hearing on 25 January 2017, it was open to the Tribunal: 1. to make directions in the nature of a "guillotine" order to prevent the filing and service of any further evidence which the appellant sought to adduce; and 2. to allow the application to proceed to final hearing on 2 March 2017.
In these circumstances, leave to appeal should be given and the appeal must be allowed and the order made by the Tribunal dismissing the proceedings for want of prosecution set aside.

What orders should be made?

In advancing the appellants case on appeal, Mr Bland made clear that it was open to the Tribunal on 25 January 2017 to reject the application by the appellant to adduce further evidence and maintain the hearing date on 2 March 2017.
The Appeal Panel asked the appellant to identify what additional evidence it had sought to adduce in the application which Mr Burwood of Counsel made on 25 January 2017. The evidence was apparently lay evidence however Mr Bland could not specify what this evidence was. It does not appear the evidence was prepared subsequent to the hearing on 25 January 2017. Certainly it has not been provided to the Appeal Panel.
The Appeal Panel then discussed with Mr Bland what orders should be made if the appeal was successful. In doing so, Counsel indicated that the appellant would agree to a hearing on terms that the evidence to be relied on would be limited to that evidence previously filed for the hearing on 25 October 2016.
The respondent did not suggest that the matter could not proceed to hearing on this basis. The respondent did not suggest that its own evidence was incomplete or the matter otherwise not ready for hearing.
The parties agreed that the hearing will take 2 days.
In these circumstances, orders should be made to fix the matter for final hearing. Directions should also be made for the preparation of a bundle of documents and submissions. In addition, the bundle should include all documents required for cross examination and each party's topics for cross examination. In this way, the Tribunal will be able to conduct an efficient hearing and ensure the proceedings are finished within the time allocated.

Costs

The parties provided submissions in relation to the costs of the appeal and in relation to various costs of the proceedings before the Tribunal.
In relation to cost before the Tribunal, r38 of the Civil and Administrative Tribunal Rules, 2014 (Rules) applies and the Tribunal has a general discretion to award costs. The same position applies to costs of the appeal by reason of r38A.

Costs of Appeal

The appellant contended that he should receive his costs or at least a portion of his costs in respect of the appeal. Alternatively, the appellant suggested that cost should be reserved to await the outcome of the remitted proceedings.
In relation to the amendment of the Notice of Appeal, the appellant said there was no substantial change to the arguments advanced in the appellant's submissions. Therefore any allowance for costs in favour of the respondent should be limited to the costs incurred by the respondent occasioned by the amendment.
In reply, the respondent said there would be a mixed result and that there should be no order for costs. Alternatively, the appellant should only have fifty per cent of his costs.
In our view, each party should pay their own costs of the appeal.
Our reasons are as follows: 1. We accept that the appellant had mixed success, having filed a Notice of Appeal that did not reflect the grounds finally asserted at the hearing of the appeal. 2. Some of the submissions on the appeal had no merit and sought to deflect responsibility for the delay of proceedings to the respondent. In particular, we refer to the appellant's submission that it was necessary to adjourn the proceedings on 25 October 2016 because the respondent had withdrawn its separate claim against Mr Santo. As the Tribunal said, it was for the appellant to decide who it wished to sue and responsibility for his late joinder of Mr Santo as a party to his proceedings cannot be laid at the feet of the respondent. 3. The appellant did not provide all evidence relevant to the appeal and the manner in which the appeal was presented required the Appeal Panel to obtain necessary information during the course of the hearing in order to resolve the real issues in dispute. 4. The hearing itself was delayed because the appellant failed to appear on time.
These matters, when considered as a whole, lead us to conclude that while the respondent was ultimately unsuccessful in the appeal, the manner in which the appeal was presented by the appellant and the lack of clarity and timeliness in submissions made and issues identified has caused the respondent to incur cost which he would not have incurred had these things not occurred. Further, the manner in which the Notice of Appeal was drawn, asserting a denial of procedural fairness, was a failure to identify the real issue for resolution in the appeal being whether or not the exercise of the discretion to dismiss the proceedings for want of prosecution had miscarried.
Accordingly each party should pay their own costs of the appeal.

Costs of proceedings at first instance

The second cost issue to deal with is the cost of the application before the Tribunal on 25 January 2017 and the costs arising from the default of the appellant in complying with the directions made 25 October 2016.
In our view, each party should pay their own costs of the application before the Tribunal on 25 January 2017. This is because the proceedings were listed on the motion of the Tribunal and even though the respondent might ultimately be regarded as "unsuccessful" in relation to the application to dismiss the proceedings for want of prosecution, the manner in which the proceedings came before the Tribunal make it inappropriate to order the respondent pay the costs in these circumstances.
As to the costs occasioned by the proceedings being adjourned on 25 October 2017, the subsequent joinder of Mr Santo to the appellant's proceedings and then the removal of Mr Santo as a respondent on 25 January 2017, prima facie the costs of the respondent thrown away should be paid by the appellant. However, in the absence of detailed submissions concerning what occurred on 25 October 2016 and/or what costs the respondent says were incurred in connection with the joinder and subsequent removal of Mr Santo, in our view these costs should be reserved to be dealt with by the Tribunal at the final hearing.

Directions for remitted proceedings

Directions should be made to facilitate a final hearing of the remitted proceedings.
At the hearing of the appeal the Appeal Panel directed the parties to advise available dates for a final hearing in July or August if the appeal was allowed.
The only dates suitable to both parties in July are not dates which the Tribunal has available for a two day hearing. As to August, the respondent has provided available dates however the appellant says he will be overseas from late July until October 2017.
No explanation is provided by the appellant as to why alternative travel arrangements cannot be made. Certainly no explanation is given as to why a final resolution of these proceedings should be delayed for a further six months so as to meet the convenience of a party who himself caused the adjournment of proceedings fixed for final hearing in October 2016 because of the late joinder of a second respondent, which claim has subsequently been withdrawn.
As stated above, these proceedings were commenced on 18 May 2015. The Tribunal is bound by the guiding principle found in s36 of the NCAT Act to ensure the real issues in dispute are resolved in a just, quick and cheap manner. The respondent has a legitimate expectation that this will occur as soon as reasonably practical. A party who commences proceedings is obliged to co-operate with the Tribunal to give effect to the guiding principle.
In these circumstances, the matter should be fixed for hearing in August 2017, being the earliest date the Tribunal can provide a two day hearing.
While this may cause inconvenience to the appellant, this inconvenience must be weighed against the inconvenience to and effect on the respondent caused by further lengthy delay in resolution.
If the appellant does not wish to proceed with a hearing at this time, it is open to him to withdraw his claim. However, as the proceedings were commenced in 2015 and in the absent some over-riding consideration that would justify further delay, the proceedings should be fixed for hearing in August, being a date available to the respondent and which the Tribunal has available for a two day hearing.
Accordingly orders will be made to this effect.
Finally, it may be that circumstances arise in the future which need to be taken account of in managing these proceedings. We should make clear that our orders and reasons do not prevent the Tribunal in the remitted proceedings from making such further directions as it considers appropriate for the proper management of this claim.

Orders

Having regard to the above the Appeal Panel makes the following orders: 1. Leave to appeal is granted and the appeal allowed. 2. Orders 2 and 3 made 25 January 2017 are set aside and the proceedings are remitted for rehearing in accordance with the directions set out in order 3. 3. The Appeal Panel makes the following directions in application HB 15/33798: 1. The proceedings are listed for hearing on 10 and 11 August 2017. 2. The following directions are made in preparation for hearing: 1. Within 21 days from the date of these orders the parties are to file and Agreed Bundle of documents. 2. The Agreed Bundle is to contain all evidence filed by the parties on or prior to 25 October 2016 and any other evidence subsequently filed in accordance with directions made by the Tribunal together with all documents required for cross examination and each party's topics for cross examination. 3. Nothing in the preceding direction permits a party to file any further evidence in support of its position. 4. The Agreed Bundle is to be indexed and paginated and placed in a logical order. 5. Within 5 weeks from the date of these orders the applicant (Bousgas) is to file and serve written submissions in support of his claim. 6. Within 7 weeks from the date of these orders the respondent (HD Constructions) is to file and serve written submissions in reply. 7. Within 8 weeks from the date of these orders the applicant (Bousgas) is to file and serve written submissions in reply. 8. The hearing of the application is not to be adjourned, except in exceptional circumstances. 9. Neither party may adduce further evidence except with leave of the Tribunal. 1. The directions made by the Appeal Panel in order 3 do not prevent the Tribunal making such further directions or orders in respect of the hearing of the application as the Tribunal considers appropriate. 2. Each party is to pay their own costs of the appeal. 3. Each party is to pay their own costs of the proceedings before the Tribunal on 25 January 2017 in respect of the application to dismiss the proceedings for want of prosecution. 4. Costs of the respondent arising from the appellant's application to adjourn the original proceedings on 25 October 2016, the joinder of Mr Santo as a respondent to the appellant's application and the subsequent removal of Mr Santo are reserved for determination by the Tribunal at the final hearing of the remitted proceedings.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 25 May 2017

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