Sethi v Secretary, Department of Communities and Justice

Consideration

1. Relevantly, the dismissal application is in the following terms: The Respondent requests the proceedings be dismissed in accordance with orders 6 of the orders of the Deputy President Harrowell of 31 May 2024 ('31 May Orders') as the Appellant has failed to fully comply with order 4(a). … The Respondent seeks a dismissal of the appeal in accordance with orders 6 of the 31 may orders on the basis that: ● Order 1(d) of the 27 March orders ('Order 1(d)'), as amended by Order 4(a) of the 31 May Orders ('Order 4(a)'), essentially requires the Appellant to file and serve 'a type transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing'. ● The Appellant has failed to file and serve a complete transcript by 28 June 2024, in accordance with Order 4(a). ● The Appellant has failed to file and serve a sound recording in circumstances where the Appellant relies upon what happened at the hearing at first instance, in accordance with Order 1(d) and Order 4(a). ● Orders 6 of the 31 May Orders ('Order 6') states that the appeal is to be dismissed in the event of non-compliance with Order for (a), which is the case here. It is clear from the Appellant's Affidavit affirmed 28 June 2024 and filed in these proceedings … that the Appellant relies on what happened at the hearing in these proceedings: see paragraph [21]-[42], [45], [47], [133]-[134]. Accordingly, he should have filed a sound recording of the hearing and a transcript of the hearing in accordance with Order 1(d) of the 27 March Orders, as amended by Order 4(a) of the 31 May Orders. The Appellant's affidavit indicates that he is not complied with these directions and that he intends to file further material prior to, or add, the hearing of these appeal proceedings: see paragraphs [4]-[6]. There is no doubt that the Appellant has failed to fully comply with Order 4(a).
2. The respondent's submissions are found in the email by which the dismissal application was made. While no document was provided by the appellant in the form of a submission, the appellant did provide various emails to the Tribunal setting out his position concerning the dismissal application and the provision of the transcript.
3. The respondent says: 1. In his appeal, the appellant relies on what happened at the January hearing but has not complied with the directions of the Appeal Panel to provide the transcript. 2. The appellant otherwise has not filed all evidence as identified in his affidavit date 24 June 2024. 3. The appellant has failed to prosecute his appeal and has failed to comply with directions despite being given multiple opportunities to do so. 4. A hearing of the dismissal application is not necessary and an order should be made dispensing with a hearing.
4. A review of the appellant's affidavit, affirmed 28 June 2024 (28 June affidavit) and filed in this Appeal, confirms the substance of the respondent's submissions concerning the scope of the appeal and the need for a transcript of the proceedings in order for the Appeal Panel to adjudicate on the matters raised by the appellant at the final hearing of the appeal: see eg at para 134. The 28 June affidavit also states at paras 4-6: 4. As also noted in the Appellant's Affidavit filed 21 June 2024, Appellant has requested a transcript with the Tribunal for the hearing of the matter in the court below, pursuant to order 4(a) issued on 3 June 2024. Appellant will file a copy of the transcript upon receipt of the same from the Tribunal. 5. Subsequently, Appellant is also waiting on the sound recordings of the matter which he has requested from the Tribunal and a Summons application which is yet to be processed in its entirety. 6. Accordingly, any further in annexures or documents required in support of this Affidavit or otherwise will be filed prior to or tendered at the hearing.
5. The appellant submits in his email dated 13 July 2024 that there is no "application for miscellaneous matters filed by the Respondent". In this regard the appellant says: "… an email cannot be considered as application and references to the same are dubious, irrelevant and invalid. It is clearly another illegal attempt of the Tribunal or Registrars or Registry staff who are trying to save themselves or their colleagues or Tribunal members who have made illegal orders and directions at previous instances by considering email as an application and against whom Appellant has sought orders, in his Amended Notice of Appeal…
6. In relation to the provision of the transcript to the Appeal Panel, in his earlier email dated 8 July 2024 the appellant said: I refer to my previous correspondence pertaining to the Transcript request as per the orders made by the Appeal Panel/Deputy President for their own referral purposes. I note that I did pay initial deposit of $166, as I was advised that the transcript was not readily available given the previous presiding Member may have transcribed the excerpts from the sound recording to include in a decision and reasons, as appears occurred in this matter, and in order to have the Transcript ready for Appeal Panel's referral purposes. This transcript should have been facilitated by the Tribunal/NCAT Appeals Registry without any costs or fee to the parties, especially Appellant and especially with the Appellant has made allegations of misconduct and corrupt conduct of Tribunal and the presiding Member. Hence, please can I ask that you keep a copy of the provisional transcript on file and arrange a refund of the initial deposit fee to the Applicant and also provide a copy to the parties. Should you consider the appellant should pay the transcript fee and object to have the initial deposit fee for transcript refunded then I ask that you postpone any residual fee for this transcript up until the finalisation of this matter. Please can I ask that you also place a copy of this correspondence on the file.
7. As to the email of 8 July 2024, the appellant was advised by email dated 27 June 2024 that the transcript had been prepared by the relevant court reporting service and that it would be provided to him on the payment of the balance of the fee being $1,526.00.
8. On 12 July 2024, the Registry sent the appellant in response to the appellant's email dated 8 July 2024 which said: I refer to the email of the Applicant dated 8 July 2024 requesting a refund. The deposit for a transcript of $166 is non refundable and I advise that the transcript was available for collection once the balance of $1526 was paid. As the transcript was requested by the Applicant, a copy of the transcript will not be placed on file nor a copy be provided to parties. Should the Applicant require the transcript, the balance of $1526 is to be paid.
9. The appellant does not appear to have made any submission concerning the need for a hearing of the dismissal application.
10. Finally, the appellant does not assert he has fully complied with the directions of the Tribunal. As is evident from the above, at least the transcript of the proceedings at first instance remains outstanding, despite it being available to the appellant upon payment of the required fee.

Dispensing with a hearing

1. There is no material placed before the Appeal Panel which would indicate a hearing of the dismissal application is necessary. The issue to be dealt with is whether or not the appellant has complied with the 31 May orders. The respondent says a hearing is not necessary and the appellant has not suggested otherwise.
2. The evidence relied upon by the respondent as to non compliance has not been disputed by the appellant. In any event, the records of the Tribunal make it clear that the transcript is available for collection on payment of a fee, that position having existed since 27 June 2024 when the appellant was so advised.
3. Consequently, I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Appeal Panel and will make an order dispensing with a hearing pursuant to s 50(2) of the NCAT Act.

Decision on dismissal application

1. 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.
2. 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.
3. 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.
4. It is against this background the dismissal application needs to be considered.
5. 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.
6. 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.
7. 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].
8. 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.
9. 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].
10. These provisions provide adequate authority for the Tribunal to deal with the present application.
11. The first issue to deal with is whether the dismissal application has been properly made.
12. 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.
13. I reject this submission.
14. 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.
15. 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.
16. In the present case, the appellant has both notice and has been afforded the opportunity to make submissions.
17. 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, …
18. 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".
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. Taking the above into account, I will now make an order formally dismissing the appeal.
27. 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.
28. It follows that I am satisfied the appeal should be dismissed and the hearing on 9 August 2024 should be vacated.

Orders

1. The Appeal Panel makes the following orders: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, the Appeal Panel dispenses with a hearing of the application to dismiss the appeal. 2. The appeal is dismissed and the hearing on 9 August 2024 is vacated. .********** 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: 23 July 2024