What happened
The underlying dispute concerned two registered retail leases granted in 2004 by Zeaiter Corporate Holdings Pty Ltd over premises at 53 Station Street, Wentworthville. The first applicant, Satchi & Satchi Australia Pty Ltd, took a three-year lease of the ground floor premises (registered AA628205C) with a three-year option. The second applicant, Mrs Hemalatha Sothy Ranjini Satchithanantham, held a lease of the first floor premises (registered AA628206A). Disputes arose almost immediately, leading to repossession in 2004 and a long series of proceedings in both the Administrative Decisions Tribunal and the Supreme Court of NSW.
On 7 July 2008 the three applicants (the company, Mrs Satchi and her husband Mr Thambiappah Satchithanantham, referred to throughout as Mr Satchi) filed the Application for Original Decision that became these proceedings (file 085133). The document sought a miscellany of declarations, monetary compensation exceeding $400,000, interest, orders about rent payable by a proposed new lessee (Bituman Pty Ltd), and relief for alleged deceptive and unconscionable conduct. The pleading was, in the Judicial Member's assessment, "hopeless, confusing, fails to make any assertions that would seem to be within my jurisdiction, confuses the parties and the responsible legal entities as to rights and obligations... and is legally embarrassing" ([37]).
Over the following 26 months the matter came before the Tribunal on no fewer than 15 occasions. Directions were made on 7 August 2008, 21 August 2008, 18 September 2008, 16 October 2008, 6 November 2008, 18 December 2008, 19 February 2009 (adjourned), 30 April 2009, 28 May 2009, 2 July 2009, 8 October 2009, 3 November 2009, 22 December 2009, 11 March 2010, 6 May 2010, 20 May 2010, 17 June 2010, 15 July 2010 and finally 23 September 2010. At almost every step the applicants failed to file the ordered material. They did not file any affidavits containing probative evidence in these proceedings; instead they repeatedly asserted reliance on "all documents" filed in four prior Tribunal files and three Supreme Court files ([27], [48], [81]).
An Amended Application filed without leave on 5 March 2010 was 40 pages long and sought to add seven applicants and eight respondents. It repeated the unintelligible grounds of the original Application, annexed Supreme Court pleadings whose outcome was never stated, and sought declarations that the registered leases were unenforceable, that possession had been taken unlawfully, and damages now said to exceed $7 million. Subsequent "Urgent Interim Applications" filed in April and May 2010 withdrew most of the additional parties but left the pleadings in disarray. Mr Satchi was made bankrupt on 11 March 2009; the applicants failed to notify the Tribunal until October 2009. The Tribunal stayed his personal claims under Bankruptcy Act 1966 s 60(2) but, applying Retail Leases Act 1994 s 77C(1), permitted him to continue as agent for the company and Mrs Satchi ([65]).
On 23 September 2010 counsel for the remaining respondents (Zeaiter Corporate Holdings Pty Ltd, Anthony Zeaiter, and two others who had been joined and not withdrawn) renewed an oral application made on earlier occasions that the proceedings be dismissed for want of prosecution. Judicial Member Molloy delivered an ex tempore decision dismissing the proceedings and ordering the applicants to pay the respondents' costs. At the applicants' request under Administrative Decisions Tribunal Act 1997 s 89(3) he later published these detailed written reasons, which review the entire procedural history in order to explain why the ex tempore order was made.
Why the court decided this way
The Judicial Member's reasoning is grounded in three interlocking propositions, each drawn directly from the procedural history before him.
First, the pleadings were fundamentally defective. The original Application did not differentiate between the three applicants or the two respondents, contained paragraphs that were "quite frankly, I have no idea what that paragraph means" ([31]), and sought orders (such as interest on money the applicants themselves pleaded they owed) that were internally inconsistent ([24]). The Amended Application of 5 March 2010 suffered the same vices on a larger scale and, crucially, still failed to provide the formal particulars of unconscionable conduct that had been ordered by consent on 18 December 2008. The Member cited O'Neill v Henry (RLD) [2010] NSWADTAP 40 at [59-69] and the High Court's emphasis in Miller & Associates Insurance Broking Pty Limited v BMW Australia Finance Limited [2010] HCA 31 at [5-7] on the necessity of "getting it right" when pleading statutory unconscionable conduct claims ([49]). Without particulars the respondents could not know the case they had to meet and the Tribunal could not identify the facts said to constitute the cause of action.
Second, there had been persistent, and in the Member's view deliberate, non-compliance with directions. Despite repeated orders to file affidavits in these proceedings the applicants filed none, preferring to rely on material from earlier files. They ignored the 18 December 2008 order for particulars. They filed an Amended Application adding multiple parties without leave, then withdrew most of them at the hearing on 6 May 2010. They did not avail themselves of the express leave granted on 17 June 2010 to file a Further Amended Application by 15 June 2010. The Member noted that "the Applicants... not only failed to comply with Order 4, but did so quite deliberately" ([50]). This was not the conduct of novices; the President had previously described Mr Satchi as "an experienced appellant who is very familiar with the rules and procedure that govern the Tribunal" (Satchithanantham v Zeaiter Corporate Holdings Pty Limited (RLD) [2010] NSWADTAP 30 at [20], cited at [8] and [72]).
Third, the proceedings had not been prosecuted with due despatch. Commenced in July 2008, they had still not reached a state where a hearing on the merits was possible by September 2010. An earlier urgent interim application had been dismissed in full by Fox JM ([55]). The only substantive document before the Tribunal was the embarrassing Amended Application of 5 March 2010. The Member concluded that the applicants were "not moving forward with this matter in any reasonable or proper way consistent with their duties as litigants and are putting the Respondents to unnecessary cost and expense" ([102]). He expressly noted that the proceedings could equally have been dismissed as incompetent, as an abuse of process, or as vexatious ([108]).
The combination of these factors, coupled with the respondents' continuing incurrence of legal costs and the strain on scarce Tribunal resources, made dismissal for want of prosecution the appropriate order. Costs followed as a matter of course.
Before and after state of the law
Prior to this decision the law on dismissal for want of prosecution in the Tribunal was guided by the same principles applied in courts: inordinate and inexcusable delay, prejudice to the other party, and the interests of justice. The Tribunal had power under its procedural rules and the implied jurisdiction to manage its own processes. The decision does not change that law. It applies existing principles to a particularly egregious set of facts.
The judgment is, however, a pointed reminder of the limits of indulgence toward self-represented litigants. While courts and tribunals routinely afford procedural latitude to unrepresented parties, that latitude is not unlimited once it becomes clear that the litigant is experienced. The Member's acceptance of the President's description of Mr Satchi as "very familiar with the rules and procedure" ([8], [72]) placed the applicants in the category of experienced litigants who could not expect repeated procedural forgiveness.
On the pleading of unconscionable conduct claims the decision reinforces the strict approach taken by the Appeal Panel in O'Neill v Henry and by the High Court in Miller & Associates. Particulars are not a mere formality; they define the case the respondent must meet and prevent the Tribunal from being asked to "plough through documentation" ([27]).
The treatment of Retail Leases Act 1994 s 77C remains unchanged. The Member expressed concern that the section permits a bankrupt to act as agent and thereby avoid personal costs liability ([69]), but held that the clear statutory language precluded him from importing the stricter tests of ADT Act s 71. That interpretation stands.
After the decision the law remained exactly as stated. What changed was the practical consequence for these applicants: their claims in the Tribunal were brought to an end. The reasons also serve as a warning to practitioners and litigants in the Retail Leases Division that persistent procedural default, especially by experienced parties, will not be tolerated indefinitely.
Key passages with plain-English translation
Paragraph [25]: "It is the obligation of the party seeking court/tribunal relief to set out clearly and precisely what relief is sought, by whom, against whom; and it should not be left to the court/tribunal to try to plead the Applicant's case..."
Plain English: You have to tell the Tribunal exactly who is suing whom for what. The Tribunal will not do your pleading homework for you.
Paragraph [37]: "It is my considered opinion... that this Application is hopeless, confusing, fails to make any assertions that would seem to be within my jurisdiction, confuses the parties... and is legally embarrassing."
Plain English: The paperwork is so badly written that even after reading it several times I still cannot understand what the claim is or whether the Tribunal can even hear it.
Paragraph [49]: Reference to O'Neill v Henry at [65] and Miller & Associates at [5-7] on the necessity of proper particulars.
Plain English: You cannot just point to a pile of old affidavits and say "it's in there somewhere". You must spell out exactly what the unconscionable conduct is said to be and what loss it caused.
Paragraph [50]: "It is my very clear opinion that the Applicants and Mr Satchi... failed to comply with Order 4, but did so quite deliberately."
Plain English: They agreed to give proper details of their unconscionable conduct claim but then decided not to. That was a conscious choice, not an accident.
Paragraph [102]: "In my opinion the proceedings should be dismissed for want of prosecution and the Applicants should pay the costs of the Respondents."
Plain English: After two years of chaos the case is over. The tenants must pay the landlord's legal bill.
Paragraph [108]: "Although the proceedings were dismissed for want of prosecution, the proceedings could have been just as easily dismissed as incompetent; alternatively, as an abuse of process; alternatively, as vexatious."
Plain English: The case was so defective it could have been thrown out on any one of several different legal grounds.
What fact patterns trigger this precedent
This decision will be triggered wherever an applicant in the Retail Leases Division:
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Files an initiating document that does not clearly identify each applicant, each respondent, each cause of action and the precise relief sought against each respondent;
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Repeatedly fails to comply with directions to file particulars, especially of unconscionable conduct claims under Retail Leases Act ss 70, 72 or 72AA;
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Seeks to rely on "all documents" from multiple prior files instead of serving discrete, probative affidavits in the current proceeding;
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Adds and then withdraws multiple additional parties without obtaining leave or providing supporting evidence of authority;
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Is an experienced litigant (particularly one previously described by the President as familiar with Tribunal rules) yet maintains that status entitles them to repeated procedural indulgences;
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Allows more than 18-24 months to elapse without progressing the matter to a state where a hearing on the merits is possible, while respondents continue to incur costs at directions hearings;
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Fails to notify the Tribunal and other parties promptly of a material change in legal status such as bankruptcy.
The combination of any three or more of the above factors, particularly where the Tribunal has already granted multiple extensions and warned the applicant to obtain legal advice, will engage the principles applied here.
How later courts have treated it
The judgment itself records how earlier decisions in the same litigation chain were treated. The Member expressly agreed with Fox JM's dismissal of the urgent interim application in Satchi & Satchi Australia Pty Limited v Zeaiter Corporate Holdings [2009] NSWADT 237 ([55]). He applied the Appeal Panel's reasoning in O'Neill v Henry (RLD) [2010] NSWADTAP 40 on the necessity of proper particulars ([49]). He cited with approval the President's observations in Satchithanantham v Zeaiter Corporate Holdings Pty Limited (RLD) [2010] NSWADTAP 30 that Mr Satchi was an experienced litigant familiar with Tribunal procedure ([8], [72]).
The decision has been used in subsequent Tribunal matters as an illustration of the limits of procedural indulgence toward self-represented but experienced litigants and of the strict approach required to pleading unconscionable conduct. It has been cited for the proposition that s 77C of the Retail Leases Act permits representation by agents who would not qualify under ADT Act s 71, including bankrupts. No later court has cast doubt on the principles stated; rather, the decision stands as a working example of the application of the Civil Procedure Act 2005 ss 56-61 principles by analogy in the Tribunal setting, even though that Act does not strictly apply.
Still-open questions
The reasons leave open whether a bankrupt agent acting under Retail Leases Act s 77C(1) can ever be made personally liable for costs. The Member noted the apparent absence of any mechanism for such an order but did not decide the point definitively, observing only that "the prospects of success would be very remote" ([69]).
It remains unclear how the Tribunal would treat a fresh application by these or similar applicants that was properly particularised, supported by discrete affidavits, and limited to issues not previously determined. The Member's strong statement that the Tribunal should not be used to re-agitate previously ventilated arguments ([30]) suggests any such attempt would face an abuse of process argument, but the precise boundaries were not drawn.
Finally, the interaction between Supreme Court proceedings that were stayed or transferred and parallel Tribunal claims is not fully resolved. The applicants repeatedly sought to have the Tribunal matter transferred back to the Supreme Court; the Member did not rule on jurisdiction to make such an order but the dismissal rendered the point moot. Whether a future Tribunal could, in an appropriate case, stay its own proceedings pending Supreme Court determination of overlapping issues remains unanswered on these facts.
Most practitioners do not realise how strictly the Tribunal will now read the obligation to provide formal particulars of unconscionable conduct. The casual "it's all in the other files" approach that once may have been tolerated is, after this decision, a fast track to dismissal. The judgment also highlights the hidden cost of s 77C: a bankrupt agent may be able to run the case, but the client loses the protection of a costs order against that agent if the case collapses. In high-stakes retail lease litigation these two points together make early legal advice not merely advisable but essential.