Rodgers v Ladehai Pty Ltd trading as North Star Holiday Resort & Anor

Notice of Appeal, history of appeal proceedings and submissions

1. Mr Rodgers who was not a party to the proceedings below by the time of the decision in that matter, commenced an appeal to the Internal Appeal Panel.
2. The appeal was commenced by Notice of Appeal filed 16 January 2023. The appeal was some two and a half months out of time. In respect of the lateness of the appeal Mr Rodgers referred to the reasons not being forwarded to him until 6 January 2023. We note again that at the time of the decision Mr Rodgers was no longer a party to the proceedings.
3. Mr Rodger's Grounds of Appeal referenced some 35 paragraphs which we do not reproduce in any detail because of the order that we have made disposing of the appeal. In summary Mr Rodgers referred to the Tribunal's lack of authority or jurisdiction to deal with the matter due to various provisions of intestacy rules and law. Mr Rodgers grounds sought to re-agitate issues before the Tribunal including an argument that while he resided with his mother he should have been added as a party to the site agreement. Additional grounds ventilated other disputes between Mr Rodgers and the landlord and in particular its CEO.
4. In the proceedings before the Tribunal the landlord sought an order for possession of the site and the payment of fees owing. Subsequently having obtained the orders on 17 October 2022, a Warrant for Possession issued on 11 November 2022 and the site was given over to the landlord, Mr Rodgers having since vacated the site.
5. Accompanying his Notice of Appeal Mr Rodgers filed an Application for a Stay. He also made an application to be legally represented. When the matter came before the Appeal Panel for callover on 27 February 2023 both applications were considered. The Appeal Panel gave leave to Mr Rodgers to be legally represented, primarily due to the complexity of underlying legal issues associated with the site, being the related contest as to who as the executor of the late Mrs Rodgers' estate and an Uncollected Goods application brought by the landlord in respect of the van and other chattels remaining on site.
6. In respect of the stay application the Appeal Panel dismissed that application primarily because of the issues around Mr Rodgers' standing to bring the appeal. These related to his not being a party to the final proceedings below and a lack of evidence to support Mr Rodgers' assertions that he is the Executor of his late mother's estate. The major factor against the stay was that the orders of the Tribunal took effect at the time that they were made so there was nothing to stay. The Trustee became the respondent and the site agreement was terminated and possession had been given over. The only issue capable of being stayed was the daily occupation fee amount ordered by the Tribunal. However as there was no evidence to support the claims by Mr Rodgers that the amount could not be enforced against the Estate, the stay was refused.
7. The matter was listed for hearing on 3 March 2023 before the Appeal Panel where an adjournment application was sought by Mr Rodgers. In addition the appointment of a Guardian ad Litem (GAL) was sought by Mr Rodgers.
8. The reasons for appointing a GAL included that based on medical evidence provided to the Appeal Panel at the time of the adjournment application, the Appeal Panel was satisfied that Mr Rodgers was unfit to attend or participate in the period 11-13 March 2023 inclusive. Further Mr Rodgers had requested that the Appeal Panel consider appointing a GAL and the Appeal Panel agreed because the evidence indicated that his medical condition was such that there was a likelihood that Mr Rodgers would be unable to attend or have capacity to represent himself at future appeal hearings.
9. The Appeal was eventually listed for hearing on 30 May 2023, following a number of requests by the GAL to delay fixing the matter for hearing whilst legal representation was sought.
10. In the days prior to the hearing of the appeal further requests were made of the Appeal Panel by the GAL. At 5:57pm on Friday 26 May 2023 the GAL requested an adjournment for 14 days to seek further legal representation. The GAL advised that a legal application to the Law Society's pro bono scheme had been refused and a second application to that same organisation was in process with an outcome expected within 10 days. The Appeal Panel replied on Monday 29 May 2023 (the next business day), advising that the adjournment application had been refused as the Appellant had not provided sufficient reasons why an adjournment should be granted and the Respondent to the Appeal opposes the adjournment. The Appeal Panel also advised that the hearing of the appeal is to proceed at 10:15am the following day and the Appellant through his GAL may renew any adjournment application at that time and the Appeal Panel will consider it at the beginning of the appeal hearing.

The Appeal hearing

1. Ordinarily an appeal is not a rehearing of a matter, but a reconsideration of the matter in first instance to examine whether the Tribunal erred in its approach to the evidence and material before it, and to determine whether in that approach and the conclusions that flow, the Tribunal fell into error. It does not matter whether, on the same evidence, we might reach a different conclusion to the Tribunal.
2. This is an appeal brought under s 80 of the NCAT Act. By that section the appellant is able to bring an appeal as a right on any question of law or with the leave of the Appeal Panel on any other ground. The other grounds are set out in the provisions of cl 12 of Sch 4 of the NCAT Act. Clause 12 provides as follows: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds.

Question of Law

1. Where an appellant is not legally represented, it is appropriate for the Appeal Panel to consider whether the grounds of appeal raise a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. In Prendergast, the Appeal Panel set out a non-exhaustive list of questions of law that might arise from Tribunal decisions. In summary, the questions of law identified are whether there has been a failure to provide proper reasons; whether the Tribunal identified the wrong issue or asked the wrong question; whether a wrong principle of law had been applied; whether there was a failure to afford procedural fairness; whether the Tribunal failed to take into account relevant considerations; whether the Tribunal took into account an irrelevant consideration; and whether there was no evidence to support a finding of fact; and whether the decision is so unreasonable that no reasonable decision-maker would make it.

The adjournment application

1. The Appeal Panel commenced the hearing of the appeal and noted that there was no appearance on behalf of the Appellant. Bearing in mind the recent history with the GAL seeking legal representation for the Appellant the Tribunal adjourned for 15 minutes after which time both parties were present in the Virtual Hearing Room, the GAL having appeared in the interim.
2. The Appeal Panel inquired of the Appellant's GAL whether there was any application that they wished to make. After some discussion the GAL confirmed that they wished to bring a fresh adjournment application. The GAL made submissions concerning Mr Rodgers' social and emotional well-being making the appeal proceedings challenging for him.
3. The Respondent opposed the granting of any further adjournment application and noted that the Appellant had been granted leave to be legally represented back on 27 February 2023 over three months prior and that there had been no explanation as to why legal representation had not been applied for sooner. The Respondent pressed that there would be prejudice to their side if an adjournment were again granted because the order from the Tribunal had been executed, possession of the site had been given to the landlord, and the appeal as a result was moot and her further attendance after four separate hearing events was costly.
4. The Appeal Panel refused the adjournment application of the Appellant made at the beginning of the hearing. The Appeal Panel noted that the application made on 26 May 2023 provided more detailed grounds than the application made today, and was at that time unsuccessful. Nothing new had been put in support of the application today. In addition the Appeal Panel in applying the guiding principle of the Tribunal under s 36 of the Civil and Administrative Tribunal Act 2013, that proceedings be disposed of in a just, quick and cheap manner, determined that further avenues of pro bono legal representation would be futile. We noted that a grant of Legal Aid had been refused by correspondence dated 26 May 2023. We also noted that on 3 May 2023 the Law Society had closed their file on Mr Rodgers' application for pro bono assistance because he had failed to provide them with the requested documentation as per their correspondence dated 21 April 2023. As a result they were unable to process his application and had closed the file.
5. On this basis the Appeal Panel found that the Appellant had exhausted his avenues of pro bono legal representation, noting that private representation as unavailable due to Mr Rodgers' bankruptcy. Under the circumstances we found that any prolonged adjournment or repeated adjournment on this occasion would not have good prospects of Mr Rodgers actually obtaining legal representation.

Reasons for dismissal of the Appeal

1. The Appeal Panel addressed the GAL on a matter that we had raised prior to the consideration of the adjournment application. We asked the GAL whether she was in a position to prosecute the Appeal. The GAL confirmed to the Appeal Panel that she had asked for the appellant to be present at the appeal, but he had declined to attend. The GAL further stated that without any view from the Appellant forthcoming on the merits, or instructions and or legal representation, she was unable to prosecute the Appeal or put any submissions or evidence before the Appeal Panel concerning the merits of the Appeal. We note that a GAL does not act for a party but is appointed to stand in the shoes of the party to make decisions about the proceedings.
2. The GAL confirmed that she did not wish to make any further submissions in support of the Appeal. We outlined that the Appeal Panel was entitled to dismiss the Appeal if it was effectively not being prosecuted and that no argument, submission or evidence was being brought in support of the Appeal.
3. In Templar v Watt [2014] NSWSC 937, McCallum J dealt with an application s 61 of the Civil Procedure Act 2005 and, alternatively, the power under 12.7 of the Uniform Civil Procedure Rules to dismiss proceedings if a plaintiff does not prosecute them with due despatch. The import of those sections is sufficiently similar to the effect of s 55(d) of the NCAT Act for the principles exposed by McCallum J to guide my consideration here. In Templar, the Court recorded, at [25] -[26]: "25The principles to be applied in determining an application to dismiss proceedings for want of due despatch were summarised at length but not exhaustively in the judgment of Simpson J in Hoser v Hartcher [1999] NSWSC 527 as follows: (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 Ltd, 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 Ltd, 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, para13,022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p753; Vilo, p10; McBride v Australian Broadcasting Corporation, unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Ltd, 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 Ltd (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.
4. As more recently noted by the Court of Appeal, since the date of that decision part 6 of the Civil Procedure Act 2005 has come into force and it is necessary to pay close attention to the terms of the Act (see Bi v Mourad [2010] NSWCA 17).
5. In this regard we note that like the Civil Procedure Act 2005, the Civil and Administrative Tribunal Act 2013 provides various obligations and duties on parties to proceedings, especially plaintiffs and applicants to prosecute their applications. The guiding principle that we have referred to above is particularly relevant in determining what course we should take.
6. Whilst in our view many of the matters referred to in Hoser at [28] above are enlivened, in the current circumstances, noting the terms of the NCAT Act, and as per the Court of Appeal's observations in Bi Mourad, we have accordingly reached the view that, considering the failure by the Appellant to prosecute his appeal it is appropriate to dismiss the appeal against the respondent.
7. In addition the respondent has succeeded in establishing that there is prejudice if the matter is adjourned and not dismissed.

Orders

1. The Appeal Panel makes the following order: 1. The appeal is dismissed pursuant to s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 for want of prosecution. 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: 30 June 2023