Decision on dismissal application
- As noted above, by orders made 31 May 2024, the appellant was granted an extension of time to file and serve all documents in support of his appeal. Having regard to the issues raised by him in his appeal, he was expressly directed to provide the transcript of the proceedings. The reason for this direction was explained in the June reasons.
- Order 6 of the 31 May orders provided that the proceedings will be dismissed if there was non-compliance with these directions. The oral reasons and the June reasons stated that the "appeal will automatically stand dismissed at that date", the expression "that date" referring to 28 June 2024 being the extended date by which the appellant was to provide all documents in support of his appeal, including the typed transcript of the hearing on 23 January 2024.
- The appellant has not applied for an extension of time to further extend the time for compliance or provided any evidence in support of such an application as contemplated by the 31 May orders and the June reasons.
- It is against this background the dismissal application needs to be considered.
- Section 55 of the NCAT Act is a source of power for dismissing application on various bases. Decisions of this Tribunal such as Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63 (Murabito) deal with dismissal for want of prosecution.
- In Murabito the Tribunal was also concerned with a failure to comply with directions. At [33] the Appeal Panel said:
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.
- In saying so, the Appeal Panel noted that the decision in Hoser v Hartcher [1999] NSWSC 527 was prior to the introduction of s 56 of the Civil Procedure Act 2005 (NSW), a like provision of which is found in s 36 of the NCAT Act. As such, the high standard required in cases such as Birkett v James [1978] AC 297, that there must be 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, has been diminished: Murabito at [32].
- Proceedings may also be dismissed as an abuse of process. In Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28. At [25] the plurality said
25 Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
- In addition, where the NCAT Act or procedural rules do not make provision, the Tribunal has power to determine its own procedures: s 38(1) NCAT Act and Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188 per Basten AJA at [160].
- These provisions provide adequate authority for the Tribunal to deal with the present application.
- The first issue to deal with is whether the dismissal application has been properly made.
- The appellant submits that an application cannot be made by a party in an email to the Tribunal. Rather, the appellant says that the form entitled "Application for miscellaneous matters" (Application Form) must be completed and submitted in order for the application to be valid.
- I reject this submission.
- While the Tribunal can require an application to be in a particular form, it is not mandatory for interlocutory applications (of which the present is one) to be submitted using the Application Form. In this regard, s 38(4) of the NCAT Act provides:
(4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
- Of course, this lack of formality does not displace the requirements that a party who might be a respondent to an application should have notice of the application and should be afforded an opportunity to be heard: s 38(2) NCAT Act.
- In the present case, the appellant has both notice and has been afforded the opportunity to make submissions.
- As to whether the proceedings should be dismissed, I am satisfied that the appellant has failed to comply with his obligations under s 36(3) of the NCAT Act, in particular the directions made for the preparation and hearing of his appeal. Subsection 36(3) provides:
(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,
…
- The evidence discloses that the appellant has not filed the transcript, despite it being available to him upon payment of the fee. Further, as is evidenced by his 28 June affidavit, he has purported to reserve to himself the ability to provide further documents and material in support of his appeal "prior to or tended at the hearing of the matter".
- This is despite the appeal having been commenced more than 4 months ago and despite the Appeal Panel having extended the time for him to comply with directions on various occasions.
- In the present case, inter alia, the appellant makes serious allegations concerning both the conduct of the Tribunal Member in the proceedings at first instance and the manner in which that hearing was conducted.
- In order for the respondent to have a reasonable opportunity to reply to the allegations made, it is self-evident that the proper conduct of these proceedings, consistent with the guiding principle, requires that the information relied upon must be identified and provided by the appellant to the respondent prior to the hearing of the appeal.
- The appellant, erroneously, continues to rely on the fact he has lodged a complaint as a basis why he should not have to pay the relevant transcript fee. He also seeks to reserve to himself the ability to provide evidence and submissions at a time of his choosing.
- This approach is both unfair to the respondent and seeks to cast the burden upon others to provide necessary documents in order for the Appeal Panel to have placed before it all relevant information upon which the appellant relies.
- This conduct evidences both a failure to prosecute his appeal appropriately and with due diligence and an attempt to conduct proceedings in a manner which is unjustifiably oppressive to a party or would bring the administration of justice into disrepute.
- In the reasons for the 31 May orders, I said that the proceedings would be dismissed "automatically" if the directions I made were not complied with. The orders I made may, on one view, have been ambiguous as to whether they were self-executing.
- Taking the above into account, I will now make an order formally dismissing the appeal.
- In doing so, I have considered whether a further opportunity should be provided to the appellant to comply with the Appeal Panel directions. In the absence of any expressed intention by the appellant to correct his failures and fully comply with the Tribunal's directions and having regard to my reasons for the 31 May orders, I am not satisfied such an opportunity should be provided.
- It follows that I am satisfied the appeal should be dismissed and the hearing on 9 August 2024 should be vacated.