Murabito v Commissioner for Fair Trading

Background

1. Mr Murabito has been a licensed real estate agent since 1998. His application to renew his licence was refused on the grounds that Mr Murabito is a disqualified person under s 16(1)(a) of the PSBA Act, and that he is not a fit and proper person to hold a licence as required by s 14(1)(b) of the PSBA Act. That decision was affirmed on internal review.
2. A person is a "disqualified person" if they have a conviction in New South Wales or elsewhere for an offence involving dishonesty, that was recorded in the last 10 years, unless it is determined by the Secretary under s 16(1) of the PSBA Act that the offence should be ignored, either because of the time that has passed since the offence was committed, or because the offence is of a trivial nature: s 16(2) of the PSBA Act.
3. On the hearing of the application for administrative review, the Tribunal had a copy of Mr Murabito's current criminal history, which was not in dispute. The Tribunal determined that the offences committed by Mr Murabito under s 50(b) and s 175(2)(b) of the Road Transport Act 2013 in October 2013 involved dishonesty; that those offences should not be regarded as trivial; and that sufficient time had not elapsed since those offences, particularly having regard to further offences since that time and to Mr Murabito's failure to meet reporting obligations. The Tribunal was not prepared to exercise the discretion in s 16(1) in his favour so as to ignore the dishonesty convictions. Having reached that conclusion the Tribunal did not consider whether Mr Murabito is a fit and proper person to hold a real estate licence under s 14(1)(b) of the PSBA Act. The decision under review was affirmed: Murabito v Department of Fair Trading [2019] NSWCATOD 136.
4. The name of the applicable legislation was changed with effect from 23 March 2020 to be Property Stock and Agents Act 2002, by the Property Stock and Business Agents Amendment (Property Industry Reform) Act 2018. The decision of the Tribunal below, and these reasons, refer to that legislation by its name as at the date of application, the application for review, and the determination by the Tribunal.

Appeal proceedings

1. The following chronology is based on records on the Tribunal's file.
2. The appeal was lodged on 2 October 2019, and listed for callover on 15 October 2019. At the request of the respondent the callover was adjourned to 29 October 2019, when the following directions were made: 1. The Appellant is to lodge with the Tribunal and provide to the Respondent by 6 December 2019: (a) An agreed bundle to contain: (i) All the evidence provided to the Tribunal below on which it is intended to rely; (ii) The transcript of the hearing at first instance; (iii) Any fresh evidence for which leave is sought. (b) The Appellant's written submissions in support of the appeal. 2. The Respondent is to lodge with the Tribunal and provide to the Appellant by 20 December 2019: (a) The Respondent's written submissions in opposition to the appeal. 3. The Appellant to lodge with the Tribunal and provide to the Respondent any written submissions in reply by 31 January 2020. 4. The Appeal is listed for HEARING on 7 February 2020 at 10:15am for half day. 5. The issue of whether the Appeal Panel should: (a) give leave to appeal on grounds other than a question of law (b) give leave to rely on fresh evidence is to be determined at the hearing of the appeal.
3. On 17 December 2019 the appellant's solicitor requested a variation of the timetable. That request was not opposed by the respondent. The Tribunal requested the parties to provide reasons for the request, by 19 December 2019.
4. The appellant's solicitor advised the Tribunal on 20 December 2019 that he had been in communication with the solicitor for the respondent with a view to exploring a possible resolution of the appeal. On 23 December 2019 an extension of time was granted, extending the time for the appellant to comply with direction 1 to 3 January 2020, extending the time for the respondent to comply with direction 2 to 24 January 2019, and confirming the other dates.
5. On 16 January 2020 the respondent's solicitor advised the Tribunal that order 1 had not been complied with, and that the appellant had not advised when he intended to provide the documents as directed. The respondent's solicitor advised the Tribunal that as a consequence there would be a delay in the respondent filing and serving its documents.
6. On 22 January 2020 the appellant's solicitor advised the Tribunal that his client was working on fresh medical evidence, for which leave would need to be granted at the hearing. A report was requested from Mr Murabito's treating psychiatrist Dr Martin in late November 2019. Dr Martin had originally advised that he would be back at work in early January 2020, however he now was not available to provide a report until early February 2020. The appellant proposed further orders to vacate the hearing date of 7 February 2020, and to vary the timetable.
7. The respondent did not oppose those orders, and orders were made by consent on 24 January 2020. The hearing date was vacated, and the appeal listed for hearing on 27 March 2020. The date for compliance with direction 1 was extended to 14 February 2020, for direction 2 to 28 February 2020, and for direction 3 to 13 March 2020.
8. The respondent filed the application for summary dismissal by email on 25 February 2020. The respondent's representative confirmed at the hearing, and the copy of the email on the Tribunal file also confirms, that the application for summary dismissal and affidavit were filed, and served on the appellant's solicitor, at 12.22pm on Wednesday 25 March 2020.
9. On 26 March 2020 at 6.27pm the appellant emailed to the Tribunal and to the respondent's solicitor documents referred to as his submissions, being two affidavits sworn on 26 March 2020, by himself and by his wife; four character references; and a report by Dr Martin dated 14 February 2020.

Appeal hearing

1. At the commencement of the appeal hearing at 10.15am on 27 March 2020, by telephone, the respondent's representative confirmed that the application for summary dismissal was pressed.
2. The appellant stated that he no longer has a solicitor acting for him. He was told there was something for him, and received the application for summary dismissal and affidavit on the morning of the appeal hearing. He believes he is disadvantaged by having the appeal hearing proceed by telephone, and understood it was to be adjourned until May 2020. He requested an adjournment of the appeal for a few weeks, so he can make submissions that his application was for a restoration of his licence and not for a renewal. He wants the matter over quickly but has been told it will be October 2020. The appellant stated that the documents provided by him on 26 March 2020 are in support of his substantive appeal.
3. The Appeal Panel decided to hear the application for summary dismissal. In addition to his written submissions the respondent's representative made oral submissions. The appellant made oral submissions in reply. In response to a question from the Appeal Panel, the appellant stated he had not had sufficient time to prepare a response to the application for summary dismissal. Directions were made at the conclusion of the hearing for the appellant to make any further written submissions by close of business 3 April 2020 to supplement those made orally.
4. On 6 April 2020 at 2.47am the appellant emailed to the Tribunal, copied to the respondent's solicitor, a Statement dated 2 April 2020, annexures to that statement, and written submissions. The documents annexed to the appellant's Statement include a hospital discharge summary which states that his mother was admitted to hospital on 29 January 2020 and discharged on 30 January 2020, with a principal diagnosis of Transient Ischaemic Attack. The documents also include copies of: 1. the appellant's real estate agent Licence No 291292 in force from 19 January 1998 to 18 January 2018; 2. the application form completed by the appellant, signed 17 January 2018 and stamped "Received 29 January 2018". That form is headed "Application for Renewal/Restoration of Licence", and states that Mr Murabito's licence will expire if an application for renewal is not received by 18 January 2018, and that any application for restoration may be made not more than three months after 18 January 2018; 3. the original decision made on 18 February 2018 to refuse the application, which refers to the refusal to grant the restoration of the licence; 4. transcript of District Court proceedings on 24 August 2018; and 5. a character reference dated 31 March 2020.
5. In a letter to the Tribunal of 6 April 2020 the respondent formally objected to the late provision of those documents, submitting that the appellant had failed to comply with the orders made on 27 March 2020, and further objected to the Appeal Panel taking the particulars of those documents into account in determining the application for summary dismissal. On 7 April 2020 the appellant responded, stating that he had on 3 April 2020 sent an email with attachments to the Appeal Panel and to the respondent's representative. He noticed that the wrong file was attached and sent a second email, which left his outbox at approximately 3am on 6 April 2020. He understands that to be an issue with high levels of internet usage causing delays.
6. The appellant's Statement dated 2 April 2020 includes both evidence and submissions as to the substantive appeal. Paragraphs 52 to 64 are headed "Evidence submitted in defence to the respondent's Application for Want of Prosecution". The Appeal Panel has taken those paragraphs to be the supplementary submissions made in accordance with the direction on 27 March 2020. While received by the Tribunal later than the date and time specified in that direction, those paragraphs include evidence responsive to the evidence on which the respondent relied in the summary dismissal application. The appellant has provided an explanation for the delayed provision, and a copy of an email sent by him at 1.32am on 3 April 2020, to which he annexed documents, some of which had already been provided. In the absence of any clear detriment to the respondent in determining the application for summary dismissal expeditiously, the Appeal Panel has had regard to the Statement and to those annexed documents relevant to the issues raised in the summary dismissal application, as discussed below.

Application for summary dismissal

1. The respondent submitted that: 1. No reasonable or credible explanation has been given for the appellant's ongoing failure to file and serve his bundle and submissions, because: 1. despite the appellant's solicitor advising the Tribunal on 20 December 2019 that he was in communication with the respondent to explore a possible resolution of the appeal, no written representations as to any proposal, as requested by the respondent, have ever been received; and 2. while the appellant's solicitor advised that a report by Dr Martin would be available in early February 2020, no further report was received; 1. the appellant is either unable to file and serve his bundle and submissions or in the alternative it is a deliberate tactical decision not to do so; 2. in any event, any fresh medical evidence is likely to deal with no more than the appellant's state of mind at the time of the offence and will be of no relevance to the question of whether he acted dishonestly or not, and would only likely lengthen rather than shorten the proceedings; 3. the appellant is tying up the resources of the Tribunal by his delay and those of the respondent which could be more productively used; 4. the heal-all power of costs has no application in this matter given that the respondent is a state agency for which the cost of the resources expended on prosecuting and defending matters of this nature may not necessarily be in proportion to the size of the matter itself; and 5. the appellant is legally represented and has had every opportunity to comply with orders of the Tribunal on three occasions; and 6. the appellant has no genuine intention to bring the proceedings to hearing and the proceedings constitute an abuse of process.
2. The respondent relied on an affidavit affirmed by its solicitor Mr Mark Elles on 24 March 2020. In that affidavit Mr Elles refers to telephone conversations between himself and Mr Dominic Carbone, solicitor for Mr Murabito, on 3 December 2019, 13 December 2019, and 18 February 2020, and provides copies of email communications between either himself or Mr Mark Nicoletti, another solicitor employed by the respondent, and Mr Carbone on 27 November 2019, 17 December 2019, 6 January 2020, 22 January 2020, 24 February 2020, 28 February 2020, 2 March 2020, and 6 March 2020.
3. The appellant submitted that the application for dismissal for want of prosecution should be dismissed.
4. In oral submissions the appellant submitted that there has been constant communication with Mr Elles and on all occasions he has spoken to his previous solicitor and co-operated. He was only informed on 26 March 2020 that the matter would be listed for hearing after May 2020. He missed communications because his lawyer was working at home. He rejects the allegation that he has taken advantage of the delay. He has not had the resources to respond and put his submissions to deal with the appeal.
5. The appellant submitted that there are reasons for the delay. He has not had communications passed on. Up until Monday he was gainfully employed in the construction industry and he is now unemployed. He is now dealing with no income, and the real estate licence is important. Over the Christmas period his mother had a stroke, and the evidence from his former psychiatrist was delayed. The Member said there was nothing to stop him reapplying and he tried to negotiate. He has now put together the report of his psychiatrist and other material, and it is significant.
6. In his Statement of 2 April 2020 the appellant states that over the Christmas/summer period between 3 December 2019 and 30 January 2020 he was assisting his mother as her primary carer after she fell ill and had a stroke. His mother required full time care when she came home from hospital. He could not see Dr Martin until the middle of February 2020 for an updated report as he was on leave. His lawyer received Dr Martin's report on 16 February 2020. He was only able to make arrangements to meet with his solicitor on 18 February 2020 to discuss with him Dr Martin's evidence and its use in submissions for the appeal hearing. During that meeting his solicitor informed him that the submissions were due and had to be filed and that he was in constant telephone contact with the respondent's solicitor.
7. The appellant states that during February and March the pandemic crisis began to impact on his daily routine. His three children were pulled from school, he had to segregate his elderly mother from the rest of the family, his solicitor's office was prevented from working in the CBD, and his employer began losing work because of the shutdown of industries and businesses. His solicitor had neck surgery in early March and was unfit for work for almost two weeks. On 23 March 2020 his employment came to an end and he could not afford legal representation any further. His lawyer's staff were working from home and he could not get clear communication. He was informed that the matter had to be vacated until after May 2020 and he was then informed that a letter arrived from the Appeal Panel that the matter could not be re-listed before October 2020.

Consideration

1. The respondent seeks an order to dismiss the appeal proceedings under s 55(1)(d) of the NCAT Act, which provides: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - … (d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
2. The principles applicable to an application for summary dismissal under s 55(1)(d) have been previously considered by the Appeal Panel in Bousgas v HD Constructions (Aust) Pty Ltd [2017] NSWCATAP 122 and K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139.
3. Those decisions refer to the earlier authorities, including Birkett v James [1978] AC 297, which established the principle that a court should be reluctant to dismiss proceedings unless there has been either intentional or 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, and note that that approach has been diminished with the enactment of the provisions in ss 56 to 60 of the Civil Procedure Act 2005. The overriding purpose as stated in s 56 of that Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. In New South Wales v Plaintiff A [2012] NSWCA 248 Basten JA held: 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.
4. As held by Basten JA, determination of an application to dismiss proceedings for want of prosecution requires consideration of a variety of factors, including the length of any delay and associated costs, any explanation for the delay, and prejudice to other parties in the proceedings. While decided before the introduction of s 56, the identification by Simpson J in Hoser v Hartcher [1999] NSWSC 527 of relevant factors to be taken into consideration remains a useful summary: 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.
5. As noted in Bousgas and K & J Vision, the guiding principle in s 36(1) of the NCAT Act is in the same terms as s 56 of the Civil Procedure Act. The guiding principle for the NCAT Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The scope of the Tribunal's power in s 55(1)(d) must be determined in accordance with that principle and the general legislative context: Owners Corporation Strata Plan 4521 v Zouk [2007] NSWCA 23 at [41]. The obligations imposed on the Tribunal and the parties and their representatives by s 36(1), (3) and (4), and s 38(5)(c) of the NCAT Act are relevant factors to be taken into account in considering whether to make an order to dismiss proceedings for want of prosecution under s 55(1)(d) of the NCAT Act.
6. In these appeal proceedings, there is no dispute that the appellant has failed to comply with direction 1 made on 29 October 2019 requiring him to provide to the Tribunal and the respondent by the specified date (as extended) an agreed bundle containing: 1. The evidence at first instance on which it is intended to rely; 2. A transcript of the hearing at first instance; 3. Any fresh evidence for which leave is sought; and 4. Written submissions on the appeal.
7. The reference to "an agreed bundle" in that direction would have required the appellant and respondent to confer on the relevant documents before provision to the Tribunal.
8. The appellant provided submissions on the appeal, and the fresh evidence on which he seeks leave to rely, being the report of Dr Martin dated 14 February 2020, on 26 March 2020. Further submissions were provided with the Statement of 2 April 2020 on 6 April 2020. A transcript of the hearing at first instance was provided to the Tribunal by the respondent with the application for summary dismissal, on 27 March 2020.
9. The affidavit of Mr Elles records communications between the parties' representatives during the course of the appeal proceedings, which can be summarised as follows: 1. Negotiations between the parties: on 3 December 2019 Mr Carbone advised the respondent's representative that the appellant wanted to make representations in relation to the matter either in writing or in person. On 13 December 2019 Mr Elles told Mr Carbone that the respondent was willing to receive written representations. None were provided; 2. Transcript: A copy of the transcript had been sent to the appellant's solicitor on 27 November 2019 and again on 2 March 2020; and payment of the fee requested for the transcript was made on 2 March 2020; 3. Fresh evidence: on 22 January 2020 Mr Carbone advised Mr Elles that a report had been requested from Dr Martin and would be available by early February 2020; 4. Compliance with the Tribunal directions: on 28 February 2020 Mr Nicoletti advised Mr Carbone that not having received the appellant's submissions then due on 14 February 2020, the respondent could not provide its submissions in response, and that if submissions were not received by early the following week consideration would be given to making an application to have the proceedings dismissed; Mr Carbone responded on 2 March 2020 that the bundle would be ready by 4 March 2020; 5. Representation of the appellant: on 6 March 2020 Mr Carbone advised Mr Elles that he still acted for the appellant, however was in hospital having neck surgery and would be back at work late the following week; and that the appellant's bundle would be delivered to the respondent on Monday.
10. Those communications are consistent with the parties' communications with the Tribunal and the procedural history summarised in paragraphs [8] to [14] above. The Tribunal file and the email correspondence annexed to Mr Elles' affidavit confirm that the request made on 12 December 2019 for extension of time, and the request made on 22 January 2020 to vacate the hearing date and extend time for provision of documents, were not opposed by the respondent.
11. The Appeal Panel is not satisfied that there is a reasonable explanation for the failure to comply with the directions made on 29 October 2019, as subsequently varied by consent, for the following reasons: 1. the possibility that the proceedings may be settled was the basis on which the extension of time was granted on 23 December 2019, however there is no evidence that the appellant or his representative took steps to make written representations to the respondent, presumably in support of a fresh application for a licence, as agreed to on 13 December 2019; 2. the appellant's solicitor had been provided with the transcript on 27 November 2019 and again on 2 March 2020; and there is no explanation as to why that was not provided to the Tribunal until the day of the appeal hearing; 3. Mr Elles contacted Mr Carbone on 6 January 2020 and 24 February 2020 to request the appellant's submissions, and was told on 6 March 2020 that the bundle would be delivered the following Monday; however the Tribunal did not receive any submissions from the appellant until the appellant personally emailed them on the evening of 26 March 2020; and 4. the directions of 29 October 2019 required that the appellant provide the evidence before the first instance hearing on which it was intended to rely: there is no indication as to what if any steps were taken to collate that material other than a request by Mr Elles to Mr Carbone on 6 January 2020 for a draft index, and the record that the appellant contacted the respondent on 4 March 2020 to request "multiple documents that have been submitted to us in to use at hearing". Assuming that was a request by the appellant for copies of his evidence at first instance, and noting that Mr Carbone advised Mr Elles on 6 March 2020 that he was still acting for the appellant and that the appellant's bundle would be delivered on Monday, there is no explanation as to why the Appeal Panel was not provided with the evidence provided to the Tribunal below.
12. As to the fresh evidence, the directions made on 29 October 2019 required that any fresh evidence be provided by 6 December 2019, extended to 14 February 2020. Dr Martin's report is dated 14 February 2020, and the appellant states that he discussed it with his solicitor on 18 February 2020. There is no explanation as to why it was not provided to the Tribunal or the respondent until 26 March 2020.
13. As noted above, the respondent submits that any "fresh evidence" from Dr Martin is only likely to substantially prolong the time and cost of the hearing and not be of any relevance with respect to the primary issue question in the proceedings. That submission is no doubt one that will be made on the hearing of the substantive appeal, in response to an application by the appellant for leave to rely on that fresh evidence. It does not assist in consideration of the application for summary dismissal. In any event, the possibility that an application might be made by the appellant to rely on fresh evidence was addressed in the directions made on 29 October 2019, and the respondent did not oppose the application to vacate the hearing date of 7 February 2020 and extend the dates for compliance with the directions for filing and service of documents in the appeal in order that that evidence could be obtained.
14. The prejudice caused to the other party to the proceedings is a relevant factor. The onus is on the respondent to establish any prejudice on which reliance is placed: Hoser at [19(7)]. The respondent points to the prejudice caused by the consumption of its resources which could be more productively used, which it submits cannot be cured by an order for costs. The respondent also relies on the High Court decision in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, and in particular the reference by French CJ at [5] to the "irreparable element of unfair prejudice in unnecessarily delaying proceedings". The respondent submits that the inefficiencies in the use of the Tribunal's publicly funded resources are relevant in the exercise of the discretion.
15. The Appeal Panel acknowledges that the respondent has, as recorded in Mr Elles' affidavit, through its employed solicitors had to contact the appellant's solicitor on several occasions to follow up on compliance with the Appeal Panel directions, and has been unable to comply with its obligation to provide submissions in reply to the appeal. However, having regard to the role of the Appeal Panel in determining the internal appeal under s 80(2)(b) of the NCAT Act, and the grounds of appeal and leave grounds as articulated by the appellant, there is no obvious prejudice of the kind referred to in Hoser such as death or disappearance of witnesses or destruction of records that might arise in first instance proceedings. The respondent did not oppose the various requests by the appellant for extensions of time, and it would be expected that any matters of specific prejudice would have been identified and raised at the time those requests were made.
16. Further, in terms of the public interest in the effective operation of the respondent's regulatory functions, the decision under appeal was to affirm a refusal to renew a licence, and there is no stay or other interim order such as might, for example, permit the appellant to continue to exercise functions pursuant to a licence. For that reason it is not apparent what advantage the appellant would have by the non-compliance and consequent delay, such as to base the submission by the respondent that the non-compliance is a deliberate tactical decision.
17. As noted by Simpson J in Hoser at [19(4)], personal blameworthiness on the part of the appellant as distinct from any tardiness or other fault on the part of his legal representative, is relevant: Stollznow v Calvert (1980) 2 NSWLR 749 at 753. The appellant was legally represented in the proceedings at first instance, and has been in the appeal. While the Notice of Appeal was completed by the appellant, the Schedule listing the grounds of appeal and grounds on which leave is sought appear to have been drafted by a lawyer. It is not clear when the appellant's lawyer ceased to act. While the appellant stated at the hearing on 27 March 2020 that he is no longer legally represented, his statement dated 26 March 2020 and that of his wife of the same date were witnessed by Mr Carbone and have a cover sheet with details of Mr Carbone's practice. The Statement of 2 April 2020, in which the appellant states that his employment came to an end on 23 March 2020 and he could not afford legal representation any further in the matter, does not specify the date from which his lawyer ceased to act.
18. Notwithstanding the uncertainty as to when Mr Carbone ceased acting for the appellant, and acknowledging that the Appeal Panel has not heard from him, the communications from and to the respondent and its representative during the course of the appeal have been with Mr Carbone, other than the record of direct contact by the appellant on 4 March 2020. The documents annexed to Mr Elles' affidavit support the appellant's position that Mr Carbone was in hospital for a period from 4 March 2020. No issue is taken with the appellant's statement that his lawyer's staff were working from home as a consequence of the pandemic. The appellant's Statement of 2 April 2020 confirms the substance of his oral submissions that his personal circumstances, including the need to care for his mother after she suffered a stroke, and the disruptions to the appellant's children and their schooling caused by the pandemic from February, may have impacted on his ability to engage in the requirements for preparation of the appeal, including responding to any requests from his lawyer, at least from the end of January 2020. The Appeal Panel has insufficient evidence on which it could properly base a conclusion as to whether the failure to provide documents in compliance with the directions before late January, or since then, can be attributed to the appellant personally or to his solicitor.
19. As noted in Hoser at [19(10)], the plaintiff's prospects of success is a relevant factor, such that if it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. The respondent has, as a consequence of the non-compliance by the appellant, not yet filed and served its written submissions in reply to the appeal. The Appeal Panel has now received submissions by the appellant, and a Statement with annexures being documents which appear to have been part of the evidence before the Tribunal at first instance.
20. It appears that the appellant now wishes to argue that there is a difference between an application for restoration as opposed to renewal of a licence under the PSBA Act. It is likely, having regard to the respondent's position at the hearing on 27 March 2020, that any application for leave to amend the grounds of appeal to raise that ground would be opposed, and that in any event its contention will be that there is no relevant distinction. There is now some material before the Appeal Panel that goes to that issue, which neither party has had an opportunity to address. As drafted in the Notice of Appeal the grounds of appeal do not appear to be strong, and it would be a matter for the hearing of the appeal whether the appellant will be permitted to rely on the fresh evidence in the form of Dr Martin's report of 14 February 2020. On the present state of the material before the Appeal Panel, while it cannot be said that the prospects are strong, it cannot be said that they are minimal.
21. A significant factor in support of the application for summary dismissal is the effect of the non-compliance by the appellant with Tribunal directions, in the context of the obligations imposed by s 36 of the NCAT Act. Section 36 of the NCAT Act provides: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it - (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal - (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
22. The appellant has had several extensions of time in which to provide his submissions, and to ensure that the Appeal Panel has the relevant material from the first instance proceedings in the form of the evidence below, and a transcript. He has failed, in breach of the obligation imposed under s 36(3) of the NCAT Act on him as a party, which is also imposed on his solicitor, to comply with directions and orders of the Tribunal. The non-compliance has resulted in the inability to proceed with the hearing of the substantive appeal on the date listed, which has an impact on the efficient allocation of the Tribunal's resources.
23. The absence of a satisfactory explanation for the failure to comply, what appear to be limited prospects of success, and the repeated failure by the appellant and his legal representative to comply with their obligations under s 36 of the NCAT Act, are factors in favour of granting the respondent's application. Against that is the absence of established prejudice to the respondent, and the uncertainty as to whether the non-compliance can be attributed to the appellant personally or to his legal representative, and the principle that the exercise of the discretion for summary dismissal should not incorporate any element of punishing a tardy plaintiff: Hoser at [19(11)]. The matter is finely balanced: the ultimate question is, as put by Simpson J in Hoser, whether on balancing the prejudice to the respective parties by making or not making such an order, justice demands that the application be dismissed. The Appeal Panel is not persuaded that that is the case.
24. The application by the respondent for dismissal of the appeal proceedings for want of prosecution should be refused.

Further progress of the appeal

1. The Appeal Panel advised the parties at the conclusion of argument on 27 March 2020 that if the application for summary dismissal were refused, further directions would be made.
2. As noted above, the appellant has now provided submissions and a Statement in support of his appeal, copies of some of the evidence presumably before the Tribunal below, and the fresh evidence on which he seeks leave to rely. The Appeal Panel now has a copy of the transcript of the hearing at first instance.
3. The respondent needs an opportunity to provide its submissions in reply to the appeal, and in the absence of an agreed bundle, to supplement the material before the Appeal Panel with copies of the evidence below on which it seeks to rely.
4. In the interests of having the appeal heard and determined as expeditiously as possible, the Appeal Panel makes directions to conclude the exchange of submissions, and fix a hearing date, subject to an opportunity for the parties to indicate their available dates.

Orders

1. The Appeal Panel orders: 1. The application by the respondent for an order under s 55(1)d) of the Civil and Administrative Tribunal Act 2013 that the proceedings be dismissed for want of prosecution is refused. 2. The parties are to advise the Tribunal no later than 22 April 2020 available dates for a half day hearing in the weeks commencing 25 May 2020 and 1 June 2020. 3. The respondent is to provide to the Tribunal and to the appellant written submissions in opposition to the appeal, and any relevant evidence provided to the Tribunal below on which it is intended to rely, by 8 May 2020. 4. The appellant is to provide to the Tribunal and to the respondent any written submissions in reply, by 22 May 2020. 5. The appeal is listed for hearing by telephone on a date and at a time to be advised by the Registrar for half day. 6. The issue of whether the Appeal Panel should: 1. give leave to amend the grounds of appeal, or 2. give leave to rely on fresh evidence is to be determined at the hearing of the appeal.

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: 20 April 2020