Prospects of Success on the Appeal
103In summary, the Panel is of the view that the appeal has no real prospects of success because the appellant has not identified any reasonably arguable error of law or other error affecting either the Tribunal's dismissal and costs decisions of 19 February 2014 or the refusal of reinstatement decision of 25 March 2014.
104The 19 February dismissal decision was based on the uncontested fact that there was no appearance by or on behalf of the appellant on that day. In those circumstances, the power to dismiss under s 55(1)(c) of the Act was enlivened. Given the history of the matter and the fact that an application to reinstate could be made under s 55(2), there is no proper basis to conclude that there was any arguable appellable error by the Deputy President in the exercise of her discretion. The order that the appellant pay the respondent's costs of preparation and attendance on 19 February was within power and unattended by arguable error.
105Similarly, the Appeal Panel considers that the decision on 25 March to refuse to reinstate the proceedings was open on the material before the Tribunal. On this material, the Tribunal was entitled to conclude that no reasonable explanation for the non-appearance had been given and consequently the power to reinstate was not engaged.
106In the following paragraphs, the Appeal Panel addresses each of the appellant's grounds of appeal and submissions on the appeal. As the appellant's submissions were not tied specifically to his grounds of appeal, the Panel will deal with the submissions made and will note, where relevant, the ground of appeal which appears to be involved. In oral submissions, the appellant identified 10 bases upon which it was said the appeal should be allowed.
107First, the appellant submitted in effect that given the lack of formality to proceedings in the Tribunal, it ought to have accepted the submissions by Ms Burrows on 25 March 2014, without the need for affidavit evidence. The Appeal Panel notes, however, that the Tribunal did permit Ms Burrows to give her explanation from the bar table and did not accept the respondent's objection to that course. It does not follow from this, however, that the Tribunal was bound to accept any explanation as a matter of fact or to be satisfied that it amounted to a reasonable explanation for the failure to appear under s 55(2) of the Act. It was open to the Tribunal not to accept the whole of the explanation and to find that the material presented did not provide a reasonable explanation for the failure by anyone on behalf of the Appellant to appear. The Appeal Panel finds that there was no arguable error by the Tribunal on this basis.
108Secondly, it was submitted that the Tribunal erred as it failed to appreciate on 19 February that the appellant had already filed materials in the case and a hearing should have been allowed to proceed on the basis of that material. This appears to be the substance of the first ground of appeal set out in the notice of appeal (item 11B page 2). One problem with this submission is that the Tribunal on 19 February dismissed the proceedings for non-appearance by the appellant under s 55(1)(c). The mere fact that some material had already been filed would not have the consequence that there was an error if the Tribunal decided to dismiss the proceedings for non-appearance. Further and in any event, the Tribunal had on numerous occasions made directions for the filing of material in addition to that which the appellant had already filed. These were points of claim, a witness statement or affidavit by the appellant and a statement of loss and damage. These directions had not been complied with. The directions were not misguided or otherwise able to be ignored by the appellant. They were designed to ensure that the appellant had clearly identified what incidents he was relying on and what his case was and also to inform the respondent of the case it had to meet. They were appropriate to ensure that the proceedings were conducted efficiently and fairly. Even if the fact that the appellant had filed some material was a relevant consideration, the failure by the appellant to comply with directions and co-operate in the preparation of the case for hearing provided more than ample support for the Tribunal's decision. In these circumstances, there was no arguable error by the Tribunal in its decision on 19 February 2014 as submitted by the appellant.
109Thirdly, the appellant submitted that the appeal should be allowed on the basis that the Tribunal was in error in dismissing the proceedings on 19 February 2014 and not taking into account the fact that the respondent had not filed any materials in response to the materials filed by the appellant. This ground appears to be misconceived on the same basis as the preceding submission. In any event, in circumstances where the appellant had failed to provide points of claim in proper form, an affidavit or statement from the appellant or a statement of loss and damage as directed, the time for the respondent to file any material had not arrived. No arguable error by the Tribunal is disclosed on this basis.
110Fourthly, it was submitted that the appeal ought to be allowed because on 25 March 2014, the Tribunal failed to consider the onerous travel timetable of the appellant and his commitments in other proceedings in Egypt and should have accepted the evidence already filed by the appellant "as is" or accepted "fresh evidence present in submissions as available to file that day" if the matter was allowed to continue. One problem with this submission is that the information concerning the appellant's other commitments appears to go to why the appellant might not have complied previously with the numerous directions of the Tribunal for the service of documents in support of his case but it does not go to any explanation for the failure of anyone to appear on the appellant's behalf on 19 February. It was not suggested that, because of the matters relied on, Ms Burrows or someone else could not have attended on 19 February or Ms Burrows could not have given a reasonable explanation on 25 March 2014. Further, no basis is given for concluding that the Tribunal should have accepted that the additional evidence was available to be filed that day. Even if the Tribunal had failed to consider those matters on 25 March, they were not relevant to whether there was a reasonable explanation for the failure to appear on 19 February. Not being satisfied that there was a reasonable explanation for the non-appearance, the Tribunal was in the position where its power to reinstate was not enlivened. No arguable error by the Tribunal below arises out of the circumstances relied upon by the appellant.
111Fifthly, it was contended that on 25 March the Tribunal erred because it did not hold that on 19 February it should have stood the matter down and afforded the Appellant an opportunity to be heard on the dismissal. As the Appeal Panel understood it this amounted to a submission that the Tribunal failed to afford the appellant procedural fairness on 19 February 2014 and this should have been taken into account at the 25 March hearing. This appears to be the substance of the fifth ground of appeal (see item 11B on page 2 of the notice of appeal). A further error was submitted to be that the Tribunal did not accept or take into account that Ms Burrows had attempted to contact the Tribunal within 10 minutes of the dismissal. Given the ability of the appellant to apply to have the matter reinstated under s 55(2), it was not an error by the Tribunal to have dismissed proceedings under s 55(1)(c) for non-appearance without hearing the appellant. The power to dismiss for non-appearance has inherent in it that the applicant who fails to appear will not be heard on the question of dismissal. There is no lack of procedural fairness in so dismissing proceedings because of the ability of the applicant whose proceedings have been dismissed in these circumstances to apply under s 55(2) for reinstatement. On the reinstatement application the applicant is given a full opportunity to be heard. The appellant was given such an opportunity on 25 March 2014. As to the second matter, the Tribunal was not bound to accept Ms Burrows' submissions as to what she did on 19 February. Further and in any event, whether Ms Burrows did or did not attempt to contact the Tribunal to have the matter reinstated 10 minutes after it was dismissed is not relevant to whether or not she had a reasonable explanation for her non-appearance. The Appeal Panel finds that there was no arguable basis for concluding that the Tribunal erred as submitted.
112Sixthly, the appellant submitted that on 25 March 2014, the Tribunal should have accepted that there was "fresh evidence" namely the forensic psychiatrist's report and two new witness statements in relation to one of the incidents and material that had not been available at the earlier case conferences so that the proceedings should have been reinstated. This in substance raises ground 3 in the notice of appeal (item 11B on page 2). This does not, however, go to the question of whether there was a reasonable explanation for the non-appearance. In the absence of such an explanation to the satisfaction of the Tribunal, the Tribunal power to reinstate the proceedings was not enlivened. In addition, to the extent that it is said that the Tribunal should have accepted Ms Burrows' explanation that she had completely forgotten about her commitments to attend on 19 February because of the very personal urgent drama that occurred on the night before, the Tribunal was not bound to accept that submission from Ms Burrows and there was no arguable error in the Tribunal's not doing so.
113Seventhly, the appellant submitted that the Tribunal on 25 March 2014 did not give proper weight to the fact that new material was capable of being filed the very next day and did not accept Ms Burrows' submissions form the bar table as accurately portraying the situation as it was. Thus it was said that by dismissing the reinstatement application the Tribunal refused to allow that material to be put before the Tribunal and this was an error of law. The Appeal Panel once again rejects this submission. The substance of these submissions has already been dealt with above. They do not amount to any arguable error of law on the part of the Tribunal at first instance.
114Eighthly, the appellant contends, and the Appeal Panel accepts, that the application heard on 25 March 2014 was one under s 55(2) of the Act. The application turned on whether or not the Tribunal considered there was a reasonable explanation for the failure of the appellant to appear on only one single occasion on 19 February 2014 and not a history of non-appearance. As there was only one instance of non-appearance it was submitted that the Tribunal ought not to have refused to reinstate. Even though there may be only one instance of non-appearance, if the proceedings are dismissed under s 55(1)(c), the Appeal Panel has to be satisfied that there is a reasonable explanation for that one instance of failure to appear before the power to reinstate is enlivened. In considering whether any explanation is reasonable, the history of the matter may be relevant matter both in assessing whether the evidence and submissions put before the Tribunal should be accepted and in determining whether the facts found amounted to a reasonable explanation. It is noted that on 25 March 2014 Ms Burrows took no issue with the procedural history of non-compliance put before the Tribunal on the application, by way of Ms Howell's affidavit. Furthermore, the Tribunal was entitled to take into account that its directions to file and serve material by 18 February 2014 had not been complied with and that Ms Burrows had been aware of those directions. On the material before the Tribunal and its knowledge of the matter, it was open for the Tribunal to come to the view in those circumstances that it did not accept all Ms Burrows' submissions and that a reasonable explanation had not been established even though there had only been a single instance of non-appearance. The Appeal Panel is satisfied that there was no arguable error by the Tribunal in this regard.
115Ninthly, it was submitted that the Tribunal erred in, on the one hand accepting that Ms Burrows was required to travel to Brisbane, but on the other hand not accepting that this caused her to have "completely forgotten" her commitments. The non-acceptance of that explanation was said to be crucial to the decision to refuse reinstatement and the Tribunal's reasoning that Ms Burrows ought to have made arrangements for someone to appear on behalf of the appellant was illogical in the light of Ms Burrows' explanation. The submission that Ms Burrows was required to travel to Brisbane on the evening of 18 February was supported by evidence of the Virgin Airlines ticket on Ms Burrows' computer screen. The reason for her traveling to Brisbane and its allegedly causing her to completely forget her commitments was unsupported except by Ms Burrows' submissions from the bar table and what she had written in her letter which were both "untested and untestable". In these circumstances, there was no illogicality in the Tribunal's accepting one part of Ms Burrows' submission but not the remainder. It was open to the Tribunal to do what it did. In addition, the Panel relies upon what it has said above in relation to the application for leave to appeal. The Appeal Panel rejects the submissions that the Tribunal failed to take into account a relevant consideration and that there was an arguable error of law in this regard.
116Tenthly, the Appellant contended that the Tribunal's consideration on 25 March 2014 of the fact that the appellant had failed to pay the previous costs order involved an error of law by taking into account an irrelevant consideration as there was no order that the costs be paid by a particular date. It was accepted by the respondent that no particular date was set by the Tribunal for payment. Even if it were accepted that this consideration might not be relevant in determining whether or not a reasonable explanation had been given for the non-appearance on 19 February 2014, the Tribunal's comment concerning costs comes after Senior Member Scahill's conclusion that "I do not consider that the material before me, as untested and untestable as it is, constitutes a reasonable explanation for the failure of the [appellant] or his representative to appear on the 19th of February." Accordingly, it does not appear to us that this consideration formed part of her consideration of whether there had been a reasonable explanation given. The failure to pay the costs was referred to in the context of whether the appellant and his representative had complied with the obligation to co-operate with the Tribunal and comply with directions found in s 36(3) of the Act. This had been one of the foundations for the costs order below. The appellant had contended that Senior Member Scahill's earlier reference to "in the context of the matter so far" included the consideration of the appellant's failure to pay costs. However, in oral submissions before the Appeal Panel, the appellant's counsel quite properly conceded that those words were ambiguous and it was not clear what was being taken into account. The Appeal Panel is of the view that, in circumstances where the appellant did not seek a written statement of reasons for the decision under s 62 of the Act, it would not be proper to infer any error by the Tribunal in making that reference to the context of the matter. Furthermore, the Appeal Panel is of the view that even if the Tribunal did take this matter into account on the question of whether there was a reasonable explanation for the non-appearance and this was improper, it is unlikely to have had any effect on the outcome.
117In written submissions the appellant also relied upon the fact that he was initially self-represented in the proceedings and suffered from a resulting inability to properly prepare his case against the respondent and also suffered difficulty because of he was overseas dealing with Egyptian legal proceedings. This submission relates to ground 4 in the notice of appeal (item 11B page 2). These considerations are, however, irrelevant to anything that occurred on or after 19 February 2014. The appellant had been legally represented by Ms Burrows since as early as October 2013. On 5 February 2014, when the matter was before the Tribunal (the 27 November 2013 directions not having been complied with by the appellant) and when Ms Burrows was again present, the appellant was expressly put on notice of the need to provide points of claim in proper form, a witness statement from the appellant and a statement of loss and damage and that any failure to do so might result in the matter being dismissed. Notwithstanding that warning, the directions of 5 February 2014 were not complied with by 18 February 2014. This was so notwithstanding that on 19 February 2014, the appellant would be facing an application for dismissal based on the failure to comply with the directions. No explanation was provided either before the Tribunal on 25 March 2014 or before the Appeal Panel as to why the directions made on 5 February 2014 were not complied with. There is no basis for concluding that the appellant has relevantly suffered hardship in the proceedings because of his lack of understanding of the procedures of the Tribunal and the onerous nature of his case against the respondent given that he was legally represented after October 2013 and given that the conduct and circumstances which were primarily relevant in the present appeal related to what occurred on or after 5 February 2014. There was no arguable error by the Tribunal in this regard.
118The appellant submitted, in its written submissions, that a just, quick and cheap resolution of the proceedings required that the Tribunal ought to have reinstated the case, particularly where further "potentially new and significant" evidence was ready to be put forward. The Appeal Panel is of the view that this submission was not reasonably arguable in circumstances where the appellant had been afforded numerous opportunities over a substantial period to put his case in order but had not done so, where considerable expense had been incurred on both sides without meaningful progress being made and where, in any event, the proceedings were dismissed for failure to appear and the material subsequently put forward on the appellant's behalf was not sufficient to satisfy the Tribunal that the appellant had a reasonable explanation for that failure. Indeed the requirement to apply the Act and the procedural rules so as to achieve the just, quick and cheap resolution of the real issues in the proceedings would, in the Appeal Panel's view, support the approach taken by the Tribunal both on 19 February and 25 March 2014. Condoning a failure to appear at a significant case conference, in circumstances where the previous directions had not been complied with and a warning that dismissal for want of prosecution or a similar application might be granted if the latest directions were not complied with, would not be conducive to achieving the just, quick and cheap resolution of the real issues in the proceedings. Nor would reinstating the proceedings in the absence of a reasonable explanation of the failure to appear at such an important case conference. The appellant's submission does not raise an arguable error by the Tribunal below.
119The appellant also submitted that by accepting the respondent's submissions as to the failure by the appellant to file evidence in support of the application to reinstate the proceedings, the Tribunal failed to make use of its powers to inform itself on any manner as it sees fit, pursuant to s 38(2) of the Act. The Tribunal should, it was contended, have enquired of Ms Burrows as to any relevant matter, particularly given that it was Ms Burrows who could provide such evidence. The transcript of what occurred on 25 March 2014 reveals that at the outset the respondent objected to information from Ms Burrows being put before the Tribunal from the bar table and not by way or evidence that was sworn or affirmed and which could be the subject of cross examination. However, the Tribunal rejected that objection by the respondent and allowed Ms Burrows to give her explanation from the bar table and by her letter of 19 February 2014. The Tribunal did not restrict in any way the explanation which Ms Burrows could put before the Tribunal and did ask questions to illuminate or clarify issues. Senior Member Scahill invited Ms Burrows to put any further material before the Tribunal, to which Ms Burrows responded "Other than I'm just relying upon the Court's discretion as to allow this to - unfortunate circumstances I know it is not as an excuse as a solicitor, but the nature of it was urgent. Mr Habib was not expected to attend that day, I was meant to attend, it's not Mr Habib's failure that he was not there it was mine, I was meant to attend on my own.... And also, as I said I ask to rely upon the decision 5th of March 2013 as to the strength and merit of this case to continue, and that we do have all the evidence ready now to file, tomorrow or this afternoon, and this is it." Ms Burrows then provided the details of her flight to Brisbane, which Senior Member Scahill accepted as evidence of her being required to travel to Brisbane. Ms Burrows was again asked if there was anything she wanted to put before the Tribunal to which she responded "Only just that granted that we are ready to proceed and file everything tomorrow, I just - I ask for the discretion to accept you know the circumstances in that Mr Habib, - it is unjust if he is to be ..." Ms Burrows was later given the opportunity to respond to the respondent's submissions and she provided information about Mr Habib being aware of the "cut off date being the 18th" and then provided a further explanation that he could not get statements signed until after that date. Ms Burrows again stated that the evidence was now ready and that in 2013 the Appellant had been self-represented. It was always open to Ms Burrows on behalf of the appellant to put before the Tribunal whatever information and evidence she thought appropriate and to do so in a form thought to be appropriate. It is the view of the Appeal Panel that Senior Member Scahill made proper use of the Tribunal's powers to inform itself on any manner as it sees fit, under s 38(2) of the Act. Accordingly, it should not be concluded that the Tribunal arguably erred as submitted.
120Ground 2 in the notice of appeal (item 11B on page 2) raised the issue that the Tribunal failed to consider the difficulty and onerous situation of proceedings against the NSW Police in that witnesses do not wish to be involved and delays in finding witnesses willing to be witnesses in proceedings. It is not apparent to the Tribunal that these matters were raised in evidence or submission before the Tribunal on 15 March 2014. It is obvious that they were not raised with the Tribunal on 19 February as there was no appearance by or on behalf of the appellant on that occasion. Further and in any event, whether or not these difficulties were made out as a matter of fact, they were not relevant to the proceedings being dismissed on 19 February 2014. The dismissal was based on the ground that neither Ms Burrows, the appellant himself nor anyone else appeared on his behalf on that day. Similarly, they were not relevant to whether the appellant on 25 March 2014 satisfied the Tribunal that there was a reasonable explanation for the failure to appear. There was no arguable error by the Tribunal in failing to consider those matters, even if they had been raised by the appellant on 25 March.
121Finally, the appellant appealed against the costs order made on 19 February 2014 that the appellant pay the respondent's costs (see item 11A on page 2 of the notice of appeal). The appellant's written submissions referred to this issue briefly but were not elaborated upon in oral submissions. The written submissions were as follows:
The order for costs should be dismissed as to the prejudice it would have upon the appellant section 60 provides the primary position to costs in the proceedings is that each party pay its own costs.
122Section 60 of the Act, and s 88 of the ADT Act, both established a regime under which the primary position was indeed that each party should pay its own costs. Section 60 provides:
(1) Each party to proceedings in the Tribunal is to pay the party's own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),
(g) any other matter that the Tribunal considers relevant.
(4) If costs are to be awarded by the Tribunal, the Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(5) In this section:
costs includes:
(a) the costs of, or incidental to, proceedings in the Tribunal, and
(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
123Accepting, as it does for the purposes of this appeal, that the Tribunal was entitled to proceed as it did under s 60 of the Act, the Appeal Panel considers that it is not necessary to consider the terms of s 88 of the ADT Act (which are similar but not entirely the same).
124The order of the Tribunal relating to costs was recorded as follows in the notice of order given to the parties:
Applicant to pay respondent's costs of preparation and attendance on 19 February 2014 pursuant to s 60(3)(g) and s 60(3)(f) of NCAT Act - failure to co-operate with Tribunal
125The references to s 60(3)(f) and (g) indicate that the Tribunal found that there were special circumstances in the present case so that the primary position under s 60(1) was displaced and a costs order could be made. No statement of written reasons was sought by the appellant under s 62 in respect of this costs decision. Thus the only record of the reasons why the decision was made is found in the notation on the file of the Tribunal below that:
Pursuant s 60(3)(f) failure to cooperate under s 36(3) s 60(3)(g) any other matter - failure to inform parties of the intention not to file material by 18/2 and not to appear on 19/2
126The appellants did not challenge these findings of failure to co-operate and failure to inform the parties of the intention not to file material as required by the directions by 18 February and not to appear on 19 February. In the Appeal Panel's view these findings were well open on the material. Further, the appellant did not make any submissions on why such findings would not fall within the considerations referred to in s 60(3)(f) and (g). The Appeal Panel is satisfied that these findings support the conclusion that there were special circumstances in this case and there was no arguable error in the Tribunal's decision on 19 February 2014 that the appellant should pay the respondent's costs of preparation and attendance on 19 February 2014.
127For these reasons, the Appeal Panel has concluded that none of the submissions made, or grounds of appeal relied upon, by the appellant has any real prospects of success in having either the dismissal or the costs decisions of 19 February or the refusal to reinstate of 25 March 2014 set aside on appeal. Indeed, if, contrary to the conclusions reached below, an extension of time and leave to appeal should be granted, the Appeal Panel would dismiss the appeal from those decisions.
128The Appeal Panel's conclusion on the weakness of the appellant's application for leave to appeal and any appeal itself, is a factor which militates significantly against granting an extension of time in which to appeal.