The applicant submitted that the proceedings as against the first respondent should not be dismissed because it had some responsibility in circumstances where he informed Ms Thompson about the water leakage, and she recommended having repairs done, which is what he did.
The applicant submitted that the proceedings as against the second respondent should not be dismissed because it had some responsibility in circumstances where lot 8 is an apartment, and he could not negotiate with it as he was unable to locate it.
I indicated to the applicant that I did not need to hear any submissions as to whether the proceedings as against the third respondent should be dismissed.
[2]
Whether the Tribunal should dismiss the proceedings as against each of the respondents
[3]
Introduction
In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.
I am satisfied that the principles in Cominos at [13] as appropriately adapted should be applied in determining whether the proceedings as against each of the respondents are misconceived or lacking in substance within s 55(1)(b) of the NCAT Act.
[4]
The proceedings as against the first respondent
I accept the submissions of the first respondent that there is no cause of action under the SSM Act by a lot owner against a strata managing agent in respect of the repair or maintenance of the common property.
Having regard to the principles in Cominos at [13] as appropriately adapted and Goel at [18]-[19], I have been unable to discern in the application accompanying documents or the evidence of the applicant any cause of action under the FT Act founded upon contract, tort, debt, statute or any other sufficient basis in law that the applicant has against the first respondent arising out of water damage to lot 8. The assertion of the applicant that he informed Ms Thompson about the water leakage, she recommended having repairs done, and that he had repairs done, does not on its own disclose any such cause of action against the first respondent. There is no assertion of the applicant that Ms Thompson was negligent in making her recommendation or that he suffered any loss by relying on her recommendation.
I am satisfied that the proceedings as against the first respondent should be dismissed for the following reasons:
1. the applicant has not identified any matter in respect of which the SSM Act or the FT Act enables the Tribunal to make decisions and which is picked by ss 28(1) and (2)(a) and 29(1)(a) of the NCAT Act. It follows that the functions of the Tribunal in relation to the SSM Act or the FT Act have not been allocated to the CC Division pursuant to Sch 4 cl 3(1) of the NCAT Act;
2. it follows that, having regard to the principles in BDK at [62]-[66], the proceedings as against the first respondent are misconceived within s 55(1)(b) of the NCAT Act.
In view of my finding in [62(2)], above the proceedings as against the first respondent are misconceived within s 55(1)(b) of the NCAT Act, it is unnecessary to decide whether the proceedings as against the first respondent are lacking in substance within s 55(1)(b) of the NCAT Act or that there has been a want of prosecution of the proceedings as against the first respondent within s 55(1)(d) of the NCAT Act.
[5]
The proceedings as against the second respondent
In the Kavanagh report Mr Kavanagh has identified two causes of damage to the bathroom and ensuite ceilings of lot 8, one being:
"The initial repairs carried out by Parkview in respect of the foil backed insulation panel installation is considered to be defective."
I infer that the second respondent was retained to undertake remedial works by the third respondent.
Having regard to the principles in Cominos at [13] as appropriately adapted and Goel at [18]-[19], I am not satisfied that in these circumstances the second respondent has established that the applicant does not have a cause of action against it. It is arguable that the second respondent owed a duty of care to the applicant in undertaking remedial works under the general law, breached that duty of care, and caused damage to the applicant. It is also arguable that such a cause of action founded in tort would be a consumer claim within Pt 6A of the FT Act which is picked by ss 28(1) and (2)(a) and 29(1)(a) of the NCAT Act, and thereby is one which the Tribunal has jurisdiction to hear and determine.
Having regard to the principles in Murabito at [31]-[34] including ss 36(1), (3) and (4) and 38(5)(c) of the NCAT Act, I am not satisfied that that there has been a want of prosecution of the proceedings as against the second respondent within s 55(1)(d) of the NCAT Act. Justice does not demand that the proceedings as against the second respondent be dismissed. The delay of the applicant of which complaint is made has not been lengthy. The second respondent has not identified any prejudice it has suffered by reason of the delay of the applicant.
It follows that the second respondent's dismissal application should be dismissed.
[6]
The proceedings as against the third respondent
The third respondent owed the duty to the applicant under s 106(1) of the SSM Act to properly maintain and keep in a state of good and serviceable repair the common property.
Having regard to the principles in Cominos at [13] as appropriately adapted and Vickery at [28], I am not satisfied that in these circumstances the third respondent has established that the applicant does not have a cause of action against it. On the contrary, It is arguable that the third respondent breached its duty under s 106(1) of the SSM Act, and caused damage to the applicant. In these circumstances, it is arguable that the applicant has a cause of action against the third respondent under s 106(5) of the SSM Act, and the proceedings were commenced as against the third respondent within the period specified in s 106(6) of the SSM Act. The applicant as the owner of a lot in SP94140 is an interested person within the meaning of s 226(1)(d) of the SSM Act and as such has the right to make the strata schemes application containing this cause of action as against the third respondent. Such a cause of action under ss 106 and 232 of the SSM Act is picked by ss 28(1) and (2)(a) and 29(1)(a) of the NCAT Act, and thereby is one which the Tribunal has jurisdiction to hear and determine.
Having regard to the principles in Murabito at [31]-[34] including ss 36(1), (3) and (4) and 38(5)(c) of the NCAT Act, I am not satisfied that that there has been a want of prosecution of the proceedings as against the third respondent within s 55(1)(d) of the NCAT Act. Justice does not demand that the proceedings as against the third respondent be dismissed. The delay of the applicant of which complaint is made has not been lengthy. The third respondent has not identified any prejudice it has suffered by reason of the delay of the applicant.
It follows that the third respondent's dismissal application should be dismissed.
[7]
Whether the applicant should pay the costs of the proceedings as against each of the respondents
[8]
Introduction
The first respondent's application for its costs of the proceedings is pursuant to s 60(2) of the NCAT Act. The determination of this issue involves answering the following two questions:
1. whether there are special circumstances warranting an award of costs in favour of the first respondent;
2. if so, whether the discretion should be exercised to award costs.
[9]
Whether there are special circumstances warranting an award of costs in favour of the respondent
[10]
Section 60(3)(a) of the NCAT Act
I am not satisfied that the applicant conducted the proceedings in a way that unnecessarily disadvantaged the first respondent. The applicant attempted to comply with order 6 of the 29 September 2021 orders by the applicant's claim document. The failure of the applicant to comply with order 2 of the 10 November 2021 orders did not cause disadvantage to the first respondent. On the contrary, it meant the first respondent did not have to provide points of defence to the points of claim of the applicant.
[11]
Section 60(3)(b) of the NCAT Act
I am not satisfied that the applicant has been responsible for prolonging unreasonably the time taken to complete the proceedings. There was no delay prior to the first directions hearing on 29 September 2021 which was fixed by the Registrar on 2 July 2021. The delay between 20 October 2021, the date for the filing of the points of claim of the applicant, and 10 November 2021, the date of the filing of the applicant's claim document, was 21 days, which is not an unreasonable delay.
[12]
Section 60(3)(c) of the NCAT Act
I accept that the applicant made a claim against the first respondent that has no tenable basis in fact or law.
[13]
Section 60(3)(e) of the NCAT Act
I accept that the proceedings as against the first respondent are misconceived.
[14]
Section 60(3)(f) of the NCAT Act
Having regard to the principles in Baldwin at [34], I am not satisfied that failure of the applicant to comply with order 6 of the 29 September 2021 orders and order 2 of the 10 November 2021 orders has the necessary consequence that there has been a breach of s 36(3), which thereby satisfies s 60(3)(f), of the NCAT Act.
[15]
Conclusion
Having regard to all the circumstances, I am satisfied that there are special circumstances warranting an award of costs in favour of the first respondent within s 60(2) of the NCAT Act.
[16]
If so, whether the discretion should be exercised to award costs
As the applicant is self-represented, and does not have a strong command of the English language, and the proceedings as against the first respondent were pending for a relatively short period and only involved two directions hearings before first respondent made the first respondent's dismissal application, I have decided in the exercise of the discretion under s 60(2) of the NCAT Act that the applicant should not pay the costs of the proceedings as against the first respondent.
[17]
The proceedings as against the second respondent
In view of my finding at [68] above that the second respondent's dismissal application should be dismissed, this issue does not arise for determination.
[18]
The proceedings as against the third respondent
In view of my finding at [72] above that the third respondent's dismissal application should be dismissed, this issue does not arise for determination.
[19]
Whether procedural directions should be made for the proceedings
During the course of the hearing the applicant advised me that he had filed his evidence. I informed the applicant that his evidence is unlikely to be accepted as being sufficient to establish his claims against the second and third respondents. The third respondent informed me that it was considering making a cross application against the second respondent.
In these circumstances I am satisfied that it is appropriate to vacate the hearing fixed for 18 February 2022, and make procedural directions for the filing of evidence by the parties and any cross-application by the second and third respondents, and for the fixing of a further directions hearing.
[20]
Orders
I make the following orders:
1. the proceedings as against the first respondent are dismissed;
2. the first respondent's dismissal application is otherwise dismissed;
3. the second respondent's dismissal application is dismissed;
4. the third respondent's dismissal application is dismissed;
5. the hearing fixed for 18 February 2022 is vacated;
6. the applicant is to provide in hard copy to the second and third respondents and the Tribunal, either in person or by post, all documents (see note 3 below) on which the applicant seeks to rely at the hearing, and a statement of the orders that the applicant is seeking, by 2 March 2022;
7. each of the second and third respondents is to provide in hard copy to the applicant, each other and the Tribunal, either in person or by post, by 30 March 2022:
1. the respondent's points of defence (see note 2 below), and any cross application and points of cross claim (see note 1 below);
2. all documents (see note 3 below) on which the respondent seeks to rely at the hearing in response to the claim of the applicant;
1. the proceedings are adjourned for directions to a date after 30 March 2022 to be fixed by the Registrar.
NOTE 1:
The respondent's points of cross claim must set out in sequentially numbered paragraphs the orders sought by respondent and the material facts and the legal basis including statutory provisions upon which the respondent contends that the Tribunal has jurisdiction, and there is an entitlement to those orders against the cross respondent(s) including the amount of compensation claimed and how that amount has been calculated.
NOTE 2:
The respondent's points of defence must set out in sequentially numbered paragraphs the material facts and the legal basis including statutory provisions upon which the respondent contends that the Tribunal does not have jurisdiction and/or the applicant is not entitled to the orders sought.
NOTE 3:
For the purpose of these directions "document" means:
witness statements, statutory declarations or affidavits;
expert reports prepared in accordance with NCAT Procedural Direction 3 for Expert Witnesses;
invoices;
quotations;
accounting records;
correspondence;
photographs;
any other document to be relied upon.
All documents must be legible and in colour if the original is in colour.
The evidence of any party or witness is to be by signed witness statement, statutory declaration, affidavit or expert report. Each such party or witness is to be available to give evidence at the hearing unless advised that they are not required for cross-examination.
All witness statements, statutory declarations or affidavits must be divided into numbered paragraphs and each page must be numbered. All annexed written documents must be legible and in colour if the original is in colour. Any annexed photographs must be in colour if the original is in colour, and must identify the structure or other object depicted, the date and the person by whom it was taken.
The documents provided by each party must be placed in a folder, and each page must be numbered to provide easy identification by all concerned at the hearing. Folders provided to the Tribunal and to the other party(ies) must be identical and in the same order. The folder(s) should be marked with the name of the party and include:
an index;
a chronology of significant events;
all documents required by these directions.
[21]
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: 14 March 2022
The jurisdiction of the Tribunal under s 232 of the SSM Act
In Vickery v The Owners Strata Plan 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 (Vickery) Basten JA said at [28]:
"[28] … The statutory scheme must be read as a whole. The terminology adopted in s 232 should be understood to cover claims and disputes with respect to any of the matters identified in subs (1), which are themselves in terms clearly intended to cover the full range of an owners corporation's functions in operating, administering and managing the strata scheme, and exercising or failing to exercise any function under the Act, or the by-laws of the strata scheme."
The jurisdiction of the Tribunal under Part 6A of the FT Act
Part 6A of the FT Act does not create a cause of action. Jurisdiction is conferred on the Tribunal by reference to the general type of claim made by the consumer. A cause of action is predicated upon the existence of causes of action that arise independently from Part 6A: Flight Centre Travel Group Limited T/A Aunt Betty v Goel [2021] NSWCATAP 44 (Goel) at [18]-[19]. In Goel at [19] the Appeal Panel quoted with approval the decision of the Appeal Panel in Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93 at [97]:
"[97] The cause of action may be founded upon contract, tort, debt, statute or any other sufficient basis in law. All that is required is that the cause of action is available under New South Wales law to the consumer at the relevant time and provides a legitimate legal basis for the consumer to make a claim of a type listed in s 3A (1) (a) to (e) of the CC Act, or the corresponding definition in Pt 6A, against the supplier. If there is such a claim and the other requirements in relation to jurisdiction are met, the Tribunal then has power to make orders of the types listed in s8 (now ss79N, 79O and 79P of the FT Act), having regard to the legal entitlements of the parties under the causes of action upon which the claims are based: Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [164]."
Summary dismissal under s 55(1)(b) of the NCAT Act
In BDK v Department of Education and Communities [2015] NSWCATAP 129 (BDK), in which the appellant was self-represented as she had been in the decision below, the Appeal Panel at [62]-[66] said in relation to s 55(1)(b) of the NCAT Act:
"[62] It will be seen that this Tribunal's power is somewhat differently expressed. The Tribunal's power refers not only applies to proceedings that are "frivolous" or "vexatious", but then applies to proceedings that are "misconceived" or "lacking in substance". Section 55(1)(b) does not have a generic catch-all category of "abuse of process" to pick up conduct in relation to the issuance and pursuit of proceedings that might, arguably, fall outside the four specific categories set out there.
[63] In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined the meaning of the predecessor provision to s 55(1)(b) - s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977. As to the meaning of "misconceived" and "lacking in substance", he said:
25 The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said:
"misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" …, whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment …
26 This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Dept of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50].
[64] In the present case, the Tribunal referred to the frequently-cited explanation of this term by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
[65] It will be seen that Roden J's first category covers conduct that falls within the meaning of "frivolous", while his third category embraces the kind of cases to which the expressions "misconceived" and "lacking in substance" are directed (or, in the case of the UCPR categories, cases not disclosing a reasonable cause of action).
[66] In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While "misconceived" and "lacking in substance" may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are "frivolous" or "vexatious", conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings."
Summary dismissal under s 55(1)(d) of the NCAT Act
In Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63 (Murabito) at [31]-[34] an Appeal Panel made the following observations with respect to s 55(1)(d) of the NCAT Act:
"[31] The principles applicable to an application for summary dismissal under s 55(1)(d) have been previously considered by the Appeal Panel in Bousgas v HD Constructions (Aust) Pty Ltd [2017] NSWCATAP 122 and K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139.
[32] Those decisions refer to the earlier authorities, including Birkett v James [1978] AC 297, which established the principle that a court should be reluctant to dismiss proceedings unless there has been 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, and note that that approach has been diminished with the enactment of the provisions in ss 56 to 60 of the Civil Procedure Act 2005. The overriding purpose as stated in s 56 of that Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. In New South Wales v Plaintiff A [2012] NSWCA 248 Basten JA held:
17. Although there is authority for the proposition that a court should be reluctant to exercise the power of summary dismissal without a hearing on the merits absent intentional and 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 - see Birkett v James [1978] AC 297 at 318 - the stringency of that principle has been diminished by the enactment of ss 56-60 of the Civil Procedure Act. Further, a proceeding will involve an abuse of process in circumstances where the objective effect of the lapse of time since the cause of action arose is to render a fair trial impossible, despite the absence of any moral delinquency, oppressive conduct or misconduct on the part of the plaintiff: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [69]-[70].
18. Despite the fact that misconduct on the part of a plaintiff is not a precondition to a finding of abuse of process, the reasons for any delay are relevant considerations. Thus, it would be a rare case in which a defendant could complain of unfairness where the delay was in large part due to the defendant's own behaviour. By parity of reasoning, a court is likely more readily to find an abuse of process where there is culpable misconduct on the part of a plaintiff.
[33] 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 751F (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 751D;
(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.
[34] As noted in Bousgas and K & J Vision, the guiding principle in s 36(1) of the NCAT Act is in the same terms as s 56 of the Civil Procedure Act. The guiding principle for the NCAT Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The scope of the Tribunal's power in s 55(1)(d) must be determined in accordance with that principle and the general legislative context: Owners Corporation Strata Plan 4521 v Zouk [2007] NSWCA 23 at [41]. The obligations imposed on the Tribunal and the parties and their representatives by s 36(1), (3) and (4), and s 38(5)(c) of the NCAT Act are relevant factors to be taken into account in considering whether to make an order to dismiss proceedings for want of prosecution under s 55(1)(d) of the NCAT Act."
Costs under s 60(2) of the NCAT Act."
"Special circumstances" in s 60(2) of the NCAT Act are circumstances that are out of the ordinary; they do not have to be extraordinary or exceptional circumstances: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].
In considering whether special circumstances exist for the purposes of s 60(2) of the NCAT Act:
1. each case will depend upon on its own particular facts and circumstances: Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152 at [27];
2. the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48];
3. mere success (or failure) of an application does not give rise to special circumstances: The Owners - Strata Plan 5319 v Price [2020] NSWCATAP 245 at [46];
4. where special circumstances are found to exist, the Tribunal has a discretion to exercise in deciding what, if any, order should be made. Relevant to the exercise of that discretion are those facts upon which the finding of special circumstances was based. However, those findings do not constitute the whole of the relevant matters to be considered in deciding what, if any, order for costs should be made. Rather, the principles applicable to awarding costs generally must also be taken into account: Brodyn Pty Ltd v Owners Corporation Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [24].
As to the factor in s 60(3)(c) of the NCAT Act, in Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 (Zucker) at [44] the Appeal Panel made the following observations:
"[44] A finding that a claim is "not proved on the balance of probabilities" is not the same as a finding that a claim is "not tenable in fact or law". They are different concepts. The expression "no tenable basis in fact or law" relates to the common law tests developed and applied in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. For a claim to have no tenable basis in fact or law it must be so obviously untenable that it cannot possibly succeed: General Steel at 130. "Manifestly groundless" or "clearly untenable" are equivalent expressions. In our view, for the purpose of s 60(3)(c), it matters not whether a conclusion that a claim has no tenable basis in fact or law is reached in connection with an application for summary dismissal or after a full hearing on the merits."
As to the factor in s 60(3)(e) of the NCAT Act, in EJE v Western Sydney Local Health District [2021] NSWCATAP 247 at [30] the Appeal Panel made the following observations:
"[30] The terms "lacking in substance" and "misconceived" are also not defined by the NCAT Act. The former has been taken to mean "not reasonably arguable" (Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [45]), the latter, a "misunderstanding of legal principle" (Alchin v Rail Corporation NSW [2012] NSWADT 142 at [26]). We adopt those meanings."
As to the factor in s 60(3)(f) of the NCAT Act, in The Owners - Strata Plan No. 76929 v Baldwin [2021] NSWCATAP 420 (Baldwin) at [34] the Appeal Panel made the following observations:
"[34] We agree with the Tribunal below that a failure and even more than one failure to comply with directions of the Tribunal does not have the necessary consequence that there has been a breach of s 36(3) which thereby satisfies s 60(3)(f). …"