Reasons were given ex tempore on 23 May 2019 and subsequently, a request was received for a written statement of reasons. This is that statement. This is an appeal arising from a decision made on 9 May by which the tribunal in the Consumer and Commercial Division refused an application by the applicants who are now the appellants to adjourn the hearing that the tribunal had set down for this matter on 27, 28, and 29 May, in other words next week.
The decision under appeal was published on 9 May. On 21 May the appellants had filed a notice of appeal and an application for a stay. The stay application is an application for a stay on the commencement of the hearing which I earlier indicated incorrectly was the 27th, 28th and 29th, in fact the dates are the 28th, 29th and 30th May.
The notice of appeal sets out the orders which the appellants seek from the tribunal and they are that the appeal panel gives leave to the appellants to appeal from the decision of 9 May. There is also reference to the order of 3 May which I think is in fact the administrative publication by the tribunal of the notice of hearing. If leave is granted the appellants seek an order that the hearing next week be vacated which involves setting aside the decision of 9 May and confirming the appellant's application for the hearing to be adjourned.
The basis for the appellants desire to have the hearing next week not proceed essentially arises because of the unavailability of solicitor and counsel previously briefed. The date next week appears to suit the respondents to the appeal and witnesses on both sides.
The appeal is an appeal from an interlocutory decision of the tribunal and therefore is governed by s 80 of the NCAT Act subs(2)(a) of that Act which states:
"That an internal appeal may be made in the case of an interlocutory decision of the tribunal at first instance with the leave of the appeal panel."
The principles which the appeal panel is required to consider in considering an appeal of this kind, that is to say an appeal where leave is required have been referred to by counsel for both sides in their submissions. The principles are also very conveniently set out in a decision involving the same parties and that is the decision of Rodny v Stricke [2018] NSWCATAP 136 at para 75 where the appeal panel summarised, by quoting another case, the relevant principles.
It is necessary for the appellant in a case like this to establish that there are substantial reasons to review the decision under appeal. Circumstances justifying leave may be an error of principle resulting in a substantial injustice and more generally leave should not be granted unless a substantial injustice would result. In this particular case the argument is put that this is a complex matter and the appellants would suffer a substantial injustice if they were required to appear next week and prosecute their application in the absence of their solicitor who is overseas and their counsel who are unavailable.
In considering the overall injustice to the appellant, I am also obliged to consider some broader factors. One is the history of this matter which goes back a long way and involved a diversion last year into an appeal concerning legal representation issues. There was an attempt to set the matter down for hearing late last year which was aborted I am told due to the provision of evidence late in the proceedings. The third relevant factor is the fact that the hearing was set down in March of this year but had to be vacated on the morning of the hearing by reason of the death of senior counsel's mother. That was obviously a very sad event for which neither side can be blamed.
My concerns therefore are influenced by the lengthy history of the matter but more particularly by recent events. Both sides were required after 27 March, or whatever the date was when the March hearing was vacated, to advise the tribunal and each other of available dates and there has been an exchange of emails to which my attention was drawn in which the parties indicated their availability. The tribunal ultimately selected dates that were available to the respondents but it turns out were not suitable to the appellants.
It has been some time since the appellants were aware firstly of the likelihood that a date would be chosen that would not meet their suitability and secondly once they did know of the dates chosen there could have been attempts made by the appellants to find alternative lawyers and counsel once it was apparent that briefed counsel were unavailable and the solicitor was going overseas on a planned trip apparently well-known some months ago to him.
The material supplied by Mr Cunio does refer to attempts made to find alternate lawyers, in particular paragraph 30 of his statutory declaration. I agree with the comments made by counsel for the respondents that that paragraph is rather sparse and does not give any detail and therefore any comfort as to the extent to which alternative counsel were sought and to the extent that alternative counsel were limited by those who would only act on the instructions of a solicitor, or what attempts were made to obtain an alternative solicitor. Paragraph 30 says attempts were made but there is no detail set out.
One cannot be left but with an impression that from a date at least sometime in early May and perhaps even earlier it would have been apparent to the appellants that firstly a date was going to be selected which might not suit their counsel who they knew was not available until July and then when the date was selected one cannot help but think that the reaction by the appellants was inadequate in terms of making alternative arrangements. Therefore there is some basis for the conclusion that if the matter proceeds next week the appellants will be handicapped. To some extent, in my view that is a matter of their own making.
If I refuse to give leave there is still a small amount of time for new lawyers to be briefed, secondly there is the possibility of the appellants appearing without representation. In the tribunal legal representation is only permitted in most cases but not all, with leave. There is a general practice that parties do represent themselves so that possibility remains open to the appellants. The third possibility is the appellants may withdraw the application and the tribunal will then dismiss the application, and the appellants would still be free to proceed to file a fresh application.
If I were to refuse the application for leave to appeal thus enabling the hearing to continue that does not preclude or place any limits upon the member who hears the case from dealing with an application for an adjournment and deciding that application on its own merits.
Now I did refer to the history of this matter and it is relevant to draw attention to s 36 of the NCAT Act which describes the guiding principle for the conduct of proceedings in the tribunal which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
These proceedings have been going on far too long in my view and need to come to a point where they can be resolved. The guiding principles also refer to the fact that the tribunal should proceed without undue formality and I draw that to the parties attention because that is reflective of the fact that in many cases parties do appear for themselves without legal representation. The informality is designed so as to assist the inexperienced lay person in not being tripped up by undue formality or the rules of evidence which do not apply in the tribunal.
Although Ms Power has put forward the proposition that the appellants will suffer an injustice if the case proceeds which I think she described as a substantial injustice, I have two responses to that. One is that I acknowledge that the appellants may be less effective in the prosecution of their case on their own than they would have been with lawyers but I am not convinced that there will be a substantial injustice were the appellants forced to run the hearing next week without legal representation and secondly, to some extent in my view the injustice has largely arisen through the inactivities on the appellant's side and it would be inappropriate to reward that inactivity by granting an adjournment of the hearing.
I have already indicated what choices the appellants have in the event that I refuse leave. So taking those choices into account the ethos which I have described in s 36 and 37 of the Civil and Administrative Tribunal Act 2013 (NCAT Act), my view about the level of the injustice and how it has come about, I am of the opinion that the case still has the potential to proceed in a fashion which offers procedural fairness and natural justice to both parties. The final factor is that I have the impression that there has been some unwillingness to really search hard for alternative counsel because of the additional cost that will be incurred by briefing new people afresh. That has to be weighed against the fact that if an adjournment is granted there will be some wasted costs on the other side and some additional cost in the future when the hearing does take place even if it is the same lawyers that are involved.
Having regard to the principles that I set out earlier or alluded to at least in the Rodny v Stricke case from last year I am not satisfied that I should grant leave and therefore the application is refused.
The formal order will be leave to appeal is refused. I do not think there is a need to make any other because it follows from what I have decided that the hearing will proceed next week.
Submissions were made that the appellants pay the respondents' costs and the following extempore reasons were given.
In my view there are special circumstances justifying an order for costs and they arise by reference to s 60(3)(a) and (f). Subsection (a) refers to a party conducting proceedings in a way that unnecessarily disadvantaged another party. In this particular case I think this appeal has constituted an unnecessary diversion away from the proper preparation of the hearing and the disadvantage is simply that diversion and the costs attendant with that activity.
The second basis is under subs (f) where a party has refused or failed to comply with a duty imposed by s 36(3). That section requires parties to co-operate with the tribunal to give effect to the guiding principle. I have already said during the course of this hearing that I did not think that sufficient attempts have been made by the solicitors to engage in the process of trying to find common dates and I think that has resulted in the tribunal being forced to appoint dates which were suitable to one side and not to the other, and then the appellants in my view did not respond quickly enough in terms of finding alternative representation.
In that broad sense the appellants have failed to engage in the co-operation that I think s 36(3) requires, and I think that is a second basis, and when you take them together in the overall circumstances in which this appeal has arisen being just a few days prior to a three day hearing, I think the facts are capable of the description that there are special circumstances. Therefore I will make an order that the appellants pay the respondents costs of the appeal as agreed or as assessed.
[2]
Orders
The Appeal Panel makes the following orders:
1. Leave to appeal is refused;
2. Appeal dismissed; and
3. Appellants to pay the respondents' costs of the appeal as agreed or assessed.
[3]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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: 19 June 2019
Parties
Applicant/Plaintiff:
Rodny & Communications Power Incorporated (Aust) Pty Ltd