Shayer v Byron Bay Retirement Village Pty Ltd

The decision below

1. The Decision records the directions hearings which occurred in 2013, 2014 and 2015.
2. The Decision records that the appellant was directed to file and serve evidence by the following directions: 1. On 12 September 2013, the appellant was directed to file and serve all material on which he intended to rely by 3 October 2013; 2. On 31 October 2013, the appellant was directed to file and serve all his evidence, including expert evidence by 22 November 2013.
3. The Decision records the directions hearings which occurred in 2014 as follows: 1. A strike out application was heard on 1 April 2014 and on 26 August 2014 the Tribunal dismissed the strike out application; 2. On 30 September 2014 the appellant was directed to file and serve all his documents by 11 November 2014.
4. The hearings and orders which were made by the Tribunal during the course of 2015 are summarised below: 1. On 3 February 2015 the Tribunal ordered the appellant to provide to the respondent copies of tax returns, BAS and all other relevant documentary material by 27 February 2015; 2. On 6 March 2015 a further directions hearing occurred and the Tribunal ordered the appellant to file any expert reports in relation to his claims on or before 31 March 2015; 3. On 9 April 2015 further directions were made including extending the time for compliance with the orders made on 6 March 2015; 4. The Decision records that the appellant did not comply with the orders made on 9 April 2015 and the Tribunal made further orders on 13 May 2015. The orders contain the note that the appellant had filed an experts report dated 29 April 2015, being that of an accountant, Anita Owens. One of those orders required the appellant to produce to the respondent on or before 20 May 2015 the following documents identified in the appellant's expert report dated 29 April 2015: a) documents referred to in paragraph 6.1, 6.2 and 6.3 and Annexures 2 of the expert's report including: (i) the financial statements; (ii) receipts for cash expenditure; and (iii) the samples and spread sheets prepared by the applicant referred to in paragraph 6.3. (b) tax returns for the years ending 30 June 2013 and 2014. 1. The proceedings were listed for directions on 26 June 2015 and for final hearing on 6 and 7 July 2015. The appellant applied for an adjournment of the directions and final hearing which was refused on 24 June 2015. At approximately the same time the respondent had filed an application seeking to have the appellant's application dismissed pursuant to s55(1) of the Act and that application had also been listed for directions on 26 June 2015. The Decision records that the basis for that application was the failure of the appellant to have complied with the orders made by the Tribunal on 13 May 2015 as well as the previous failure to comply with Tribunal orders. There were other grounds as well. 2. The directions hearing went ahead on 26 June 2015. The appellant was telephoned and he indicated that he did not wish to participate because of his psychological condition. 3. On 1 July 2015 the Tribunal adjourned the hearing on 6 and 7 July 2015 and listed the proceedings for a hearing on 14 July 2015 to determine whether the appellant's proceedings should be dismissed. Questions and possible orders were foreshadowed in the reasons which accompanied the directions. These included whether the proceedings should be struck out on the application of the respondent pursuant to s 55 of the Act and cl 10 of Sch 4 of the Act. Directions were made for the parties to file and serve a position statement and evidence supporting their respective positions. 4. The Decision records that the appellant was not present at the hearing on 14 July 2015 but was contacted by telephone. He made an adjournment application which was refused. 5. The Decision records that during the hearing on 14 July 2015 the appellant emailed a report to the Tribunal from his doctor, Dr Hannah. The Tribunal contacted Dr Hannah by telephone and evidence was taken. The Decision records that Dr Hannah told the Tribunal that he was not in a position to give an opinion about the appellant's psychiatric condition. The Decision records that in the opinion of the Tribunal Dr Hannah's evidence did not justify granting an adjournment.
5. The Tribunal reserved its decision in respect of the strike out application and made directions. One of the directions was to require the respondent to file and serve any further submissions going to whether the application should be dismissed under either s55(1)(d) or cl 10(1) of Sch 4 of the Act and, if the application is not dismissed, whether a guardian ad litem should be appointed for the applicant (i.e. the appellant). A direction was made for the appellant to file and serve submissions in response by 21 July 2015.
6. The requirement for the appellant to file submissions by 21 July 2015 was extended on the appellant's request. The Decision records that the Tribunal received and considered submissions filed by both parties in accordance with the directions made on 14 July 2015.
7. The Decision records that the following issues were to be determined: (a) Did Mr Shayer have a reasonable excuse not to attend the hearing on 14 July 2015? (b) Should Mr Shayer's application be dismissed under s 55(1) of the NCAT Act? (c) Should Mr Shayer's application be dismissed under cl 10 of Schedule 4 of the NCAT Act? (d) If not, should a guardian ad litem be appointed for Mr Shayer? (e) If the application is not dismissed what orders should otherwise be made?
8. The Decision considered whether the appellant had a reasonable excuse not to attend the hearing and the Tribunal decided that it was not satisfied that the appellant had a reasonable excuse not to attend the hearing on 14 July 2015.
9. The Decision considered whether the appellant's application should be dismissed under s55(1)(b) and (d) of the Act. Those provisions concern proceedings which are found to be frivolous or vexatious or otherwise misconceived or lacking in substance (s55(1)(b)) or whether there has been a want of prosecution (s55(1)(d)). The Decision came to the conclusion that the application should not be dismissed pursuant to s55(1) of the Act.
10. The Decision then considered whether the application should be dismissed under cl 10 of Sch 4 of the Act. The respondent had argued that the conduct which gave rise to the possibility of an order under cl 10 was the appellant's failure to comply with directions. In the Decision the Member concluded that she was not satisfied that the appellant's failure to comply with directions made by the Tribunal prior to early 2015 constituted a basis for a finding that the appellant had conducted the proceedings in a manner that unreasonably disadvantaged the respondent.
11. However, the Decision records that the appellant's non-compliance with earlier directions made by the Tribunal and by the ADT were relevant to the exercise of the discretion to dismiss his application under cl 10(2)(a) of the Act if the Tribunal were satisfied that the appellant has conducted the proceedings in a way that unreasonably disadvantaged the respondent.
12. The Decision records the Tribunal's view that the: conduct that could most relevantly be described as conduct which unreasonably disadvantages [the respondent] is [the appellant's] failure to comply with directions made by the Tribunal to provide to [the respondent] the material that was relied on by his expert when she prepared her report (par 57). The Decision specifically referred to the order made on 13 May 2015 directing provision of documents referred to in the expert's report.
13. The Decision records that the appellant claimed damages in the sum of $400,000.00 from the respondent and relied upon expert evidence in support of that quantum. The appellant's expert relied on financial documents which the appellant had provided to her. The Decision then states that the Member was satisfied that the appellant's failure to comply with the Tribunal's directions to provide financial documents to the respondent means that the respondent has not been able to have its own expert evidence prepared. This has disadvantaged the respondent in the conduct of its case in defence of the appellant's claim.
14. In par 63 of the Decision the Member concluded that the appellant's conduct constituted unreasonably disadvantaging the respondent and that in this context "unreasonable" meant going beyond what is reasonable or equitable.
15. The Tribunal also recorded that there was no evidence to suggest that the appellant lacked any capacity to understand and act on Tribunal directions. The Decision referred to medical evidence supplied on behalf of the appellant concerning the appellant's psychiatric condition. The Tribunal's conclusion was that although the appellant has a psychiatric condition the Tribunal did not accept that that condition adequately explained the failure to comply with directions. The Member also found that it was difficult to conclude that the appellant did not make a deliberate decision not to provide the documents to the respondent as he was ordered to do so.
16. The Decision records that a consideration of the factors set out in cl 10(3) of Sch 4 of the Act weigh in favour of granting the respondent's application. Clause 10(3) requires the Tribunal to have regard to the following: (a) The extent to which the party is familiar with the procedure of the Tribunal; (b) The party's capacity to understand, and act, a direction of the Tribunal; (c) Whether the party suffers from a disability; (d) Whether the party is acting deliberately in failing to comply with the Tribunal's directions.
17. The Tribunal found that the appellant had had "multiple opportunities" to provide all of the evidence on which he relied to support his case and had consistently failed to do so.
18. The Decision concluded that the Member was satisfied that the appellant had conducted proceedings in a manner that had unreasonably disadvantaged the respondent and that the Member was satisfied on the proper exercise of the discretion in cl 10 of Sch 4 to dismiss the appellant's application.

Notice of appeal

1. The appellant states that the decision of 11 February 2016 was received by him on 15 February 2016. The notice of appeal was filed with the Tribunal on 14 March 2016.
2. The grounds of appeal are as follows: 1. Erred at law in dismissing the application; 2. Failed to afford procedural fairness; 3. Failed to take into account relevant evidence of deliberate frustration and vexatiousness of the proceedings by the Respondent included the filing of manifestly misleading evidence; 4. Did not take into account the prior application of the applicant for summary judgement, arising from filing of manifestly untrue and prejudicial evidence by the Respondent; 5. Misinterpreted the history of delays in the proceedings that arose through no deliberate default of the Applicant and often caused by the Respondent but were incorrectly attributed as deliberate; 6. Failed to take into account that the respondent is still in default of the summons issued in the first six months of the proceedings; 7. In stating that Mr Shayer had failed to provide documents for inspection failed to relevantly note that the respondent had been offered a right of inspection and copying; 8. Failed to take into account relevant evidence showing that Mr Shayer had endeavoured despite financial difficultly to arrange copying and provision of the documents; 9. Failed to take into account reasonable confusion about whether original or copy documents were to be provided and the fact that copying had proved to be impracticable due to fading; 10. Took into consideration irrelevant evidence; 11. Failed to take into account the applicant's reasonable concerns about providing direct evidence of his medical condition to the Respondent in circumstances where: a) documents filed by the Respondent showed clear evidence of misuse of Applicant's medical information previously disclosed. b) the information release at 11 was misused by the Respondent to tailor its evidence and by making scurrilous, vexatious and distressing accusations prejudiced the welfare and ability of the applicant to make his case; 12. Allowed a form of cross examination of a treating practitioner without due notice or warning or a right of re-examination by the Applicant; 13. Misinterpreted medical and other evidence given by the treating practitioner and failed to afford reasonable opportunity to the Applicant to respond and correct errors in the Tribunal's understanding; 14. Failed to note that the treating medical practitioner's evidence was that the condition was sufficiently severe enough to warrant a further opinion as to prognosis from a specialist practitioner; 15. Failed to take into account the difficulty of obtaining medical practitioner and specialist medical practitioner appointment and reports at short notice; 16. Substituted the Tribunal's opinion for the medical opinion of a qualified practitioner without good and sufficient cause nor relevant qualification; 17. Gave undue weight to the disadvantaged alleged by the Respondent, when any disadvantage cause by the alleged failure to provide documents was temporary and rectifiable; 18. Accepted evidence of witnesses without affording reasonable opportunity for cross examination; 19. Unreasonably found that Mr Shayer should have conducted cross examination when he has no such experience, is unqualified to do so, and was at risk of aggravation of his medical condition at that time; 20. Failed to give fair consideration to the financial difficulties faced by the Applicant in conduct of his claim and lack of legal representation and assistance; and 21 Gives rise to reasonable apprehension of bias.
3. The notice of appeal also records that the appellant seeks leave to appeal and the basis for seeking leave is as follows: (1) The decision was not fair and equitable on the basis of the points of appeal mentioned above; (2) The decision was against the weight of evidence and this aspect of the notice also states that: "no evidence was given at the hearing because I was medically unfit to do so at the time as evidenced, all prior documents provided as per directions".

Reply to appeal

1. The respondent has filed a reply to appeal. The respondent supports the orders made which are the subject of this appeal.
2. In addition the reply states that a further reason not given by the Tribunal which the respondent says supports the original orders is the fact that the Member reserved her decision from the hearing of the matter on 14 July 2015 until 11 February 2016 (when the decision was delivered) but despite that fact no action was taken by the appellant and no attempt was made by the appellant to comply with the previous orders of the Tribunal.
3. The reply to appeal attaches an Annexure which responds to each of the 21 grounds of appeal put forward by the appellant.

Appellant's submissions

1. The appellant has provided submissions the effect of which are summarised in the following paragraphs.
2. The appellant submits that the Decision applied an incorrect principle of law in relying on the evidence of a Mr and Ms Waghorne on the basis that it was unchallenged and without having regard to relevant evidence previously filed by the appellant directly rebutting that evidence.
3. Other errors of law are asserted in general terms but without specificity. They include the submission that there were findings of fact without supporting evidence, there were findings of fact relying on irrelevant material and a failure to take into account relevant material.
4. The appellant also submitted that there had been a failure to afford procedural fairness. These failures were also described in general terms such as a failure to make due allowances and provide reasonable assistance to the appellant who was unrepresented and suffered a medical disability. These include a failure to consider the effect of unclear or confusing directions.
5. It is also submitted by the appellant that the errors of law and failures to provide procedural fairness give rise to a reasonable apprehension of bias.
6. The submissions then provide some particulars of the matters referred to above. These particulars commence with the submission that the Tribunal erred at law in that the affidavit evidence of Mr and Mrs Waghorne was incorrectly treated by the Member as "unchallenged".
7. The appellant also submits that the Tribunal erred in concluding that the appellant had failed to provide original business trading documents to the respondent when in fact those records had been made available.
8. The appellant submits that the finding by the Tribunal that the appellant had failed to provide the documents identified in the appellant's expert's report to the respondent was in error because in fact all reports, accounting, financial statements and a forensic accountant's report had been provided, and the relevant tax return covering all the period of activity of the business was provided by the relevant date. The appellant also states that some remaining trading documents, samples and spread sheets could not be provided because of the photocopying costs of $1,700.00 and there was also a second reason, namely that the documents had badly faded and were unreadable.
9. In respect of the Tribunal's finding that the appellant deliberately failed to provide documents ordered to be provided, the appellant states that the Tribunal did not consider an email dated 10 April 2015 which the appellant sent to the respondent's solicitors offering to allow the respondent's forensic accountant to inspect documents at the appellant's forensic accountants' office. The appellant asserts that this offer of inspection was not brought to the attention of the Tribunal by the respondent's solicitor when the application for striking out of the claim was made. The email is attached to the appellant's submission. We note that is not apparent from the email which part of it contains the offer to allow inspection of the original trading documents as submitted by the appellant. However the email contains the following sentences: By now you should not be in any doubt of the existence of the trading records, receipts and invoices. I offer to attend personally upon the office of the forensic accountant, with your client's accountant or legal representative to prove their veracity should that be necessary.
10. The appellant submits as stated above that the offer to permit inspection of the trading documents was not brought to the attention of the Tribunal by the respondent's solicitor in the course of making its application to have the appellant's claim struck out, and that therefore the respondent has mislead the Tribunal.
11. The appellant submits that given the cost of photocopying the relevant documents, it would have been appropriate for the Tribunal to have ordered that the respondent cooperate with the appellant by permitting an inspection of the relevant documents to have occurred. The appellant states that he made such an offer of inspection which was not taken up by the respondent.
12. The appellant further submits that he has been denied procedural fairness and "natural justice" by reason of the fact that the respondent had filed affidavit evidence from Mr and Mrs Waghorne and a Rachel Cooney which was false and prejudicial. In response the appellant had filed an affidavit dated 8 April 2015 rebutting the affidavits of Mr and Mrs Waghorne and Ms Cooney but has been denied an opportunity to be heard on the question of whether the respondent's defence should be struck out.
13. The appellant makes submissions concerning the finding by the Tribunal that the appellant did not comply with directions of the Tribunal on "multiple instances". In particular the appellant submits that there is no evidence reasonably capable of supporting the conclusion made by the Member in par 70 of the Decision in which the Tribunal found that the appellant had failed to provide the evidence on which he was relying to support his claim as he had been previously directed to do referring back to orders made on 12 September 2013, 31 October 2013, 30 September 2014, 3 February 2015 and 13 May 2015. The appellant submits that par 70 was inconsistent with par 55 in which the Tribunal said that the failure to comply with directions made prior to early 2015 was not a basis for a finding that the appellant conducted the proceedings in a manner that unreasonably disadvantaged the respondent.
14. The appellant submits that there is no evidence reasonably capable of supporting the conclusion that the appellant deliberately failed to provide documents. The appellant submits it was inappropriate for the Tribunal to rely upon alleged earlier non-compliance in finding that multiple directions hearings took place as a result of the appellant's deliberate decision not to provide documents. The appellant also submits that he did in fact file a substantial amount of documents on 22 November 2013 including an accountant's report.
15. The appellant makes a number of submissions concerning alleged delays in the proceedings caused by the respondent. In particular the appellant submits that the respondent has not produced documents required by the appellant as identified in a summons issued by the Tribunal at the request of the appellant. The appellant's submission is that the respondent has caused substantial delay to the proceedings. The appellant elaborates on these submissions by submitting that a very substantial factor in the multiple directions hearings which took place throughout 2013 and 2014 was occasioned by the respondent's repeated failure to attend directions hearings or provide evidence.
16. The appellant submits that it became impracticable to supply copies of the original documents required by the Tribunal order to be produced because of "fading of the originals that could not be copied by the firm that I had sought to provide copies, and the quoted cost of $1,700.00 was also unaffordable". The appellant submits that the Tribunal failed to take these matters into account.
17. The appellant submits that the Tribunal has erred in law in: 1. Assuming evidence of purportedly repeated late supply of financial material in 2013 and 2014 was evidence of a breach of Tribunal orders relevant to finding that the appellant made a deliberate decision not to provide documents to the respondent; and 2. The Tribunal assumed that there were multiple breaches by the appellant in complying with Tribunal orders causing delay in the conduct of the proceedings.
18. The appellant submits that the Tribunal was in error in relying upon the evidence or Mr and Mrs Waghorne and that the Tribunal failed to have regard to the appellant's affidavit of 8 April 2015. The appellant submits that the appellant's evidence concerning the Waghorne evidence was not considered by the Tribunal and thus the Tribunal has erred in law and denied procedural fairness.
19. The appellant submits that he was not able to attend the hearing of the respondent's strike out application for medical reasons and that the witnesses whose evidence was relied upon by the respondent could and should have been the subject of questioning by the Member.
20. The appellant submits that evidence of Mr and Mrs Waghorne should not have been relied upon because no cross examination by the appellant of Mr and Mrs Waghorne was possible given the fact that the appellant was not in a fit state to conduct cross examination himself because of his medical condition.
21. The appellant also submits that the Member's decision to reject the medical opinion of Dr Hannah was unjustified on the evidence and procedurally unfair.
22. The appellant makes submissions related to the findings made by the Tribunal concerning the evidence of Dr Hannah. One finding was that Dr Hannah had not agreed to provide the report to the Tribunal which the Tribunal received on 14 July 2015. The appellant submits that it cannot have been the case as the Decision records in par 33 of the Decision that Dr Hannah was not in a position to give an opinion about the appellant's psychiatric condition. The appellant submits that in fact there was no evidence to support the Member's statement of Dr Hannah's indication of his inability to provide an opinion as to the appellant's mental state. In summary, the appellant submits that the findings in the Decision concerning Dr Hannah's evidence were unjustified and unfair. In consequence the appellant submits that the Tribunal's finding that the appellant had no reasonable excuse for failing to attend the hearing on 14 July 2015 was procedurally unfair and tends to give a reasonable apprehension of bias.
23. The appellant submits that the provision of the original trading receipts to the respondent, which are the only items outstanding, would not have substantially affected the outcome of the proceedings and any default was not deliberate.

Respondent's submissions

1. The respondent has supplied submissions which oppose each of the appellant's submissions describing many of them as "incomprehensible, embarrassing and vexatious".
2. It is not necessary to refer to the respondent's submissions in detail but the following is a summary: 1. The appellant did not comply with the orders made by the Tribunal on 13 May 2015; 2. The appellant had previously failed to comply with Tribunal orders; 3. The evidence of the losses allegedly suffered by the appellant did not involve any substantive evidence other than unreliable material. 4. The respondent should have an indemnity costs order in its favour.
3. The respondent has filed an affidavit of the respondent's solicitor, John Damian Andrews dated 1 June 2016. Relevant to this appeal the affidavit states that the appellant has not provided to the respondent the documents referred to in the appellant's expert's report as ordered by the Tribunal.

Further submissions

1. The Tribunal has also received an affidavit of the appellant dated 22 June 2016 and, in addition, an email from the solicitors for the respondent dated 11 July 2016. Some comments about these two documents are set out in the following paragraphs.
2. The affidavit of the appellant dated 22 June 2016 in summary states the following: 1. The appellant states that he has at all times endeavoured to comply with Tribunal orders despite his poor financial situation; 2. The respondent has failed to provide documents required by a summons; 3. The appellant's failure to attend the hearing on 14 July 2015 was caused by his medical condition; 4. The appellant has a medical condition which he described as "attention deficit disorder" which has created difficulties in the preparation of documents and verbal articulation of complicated matters; 5. The appellant denies that there has been no attempt by him to comply with prior orders of the Tribunal in the period 14 July 2015 and 11 February 2016. The appellant refers to an offer to inspect documents which he says remains open; 6. The appellant relied upon a medical report from Dr Hannah received on 10 July 2016 and on a report from a psychologist Mary Guest; 7. In other respects the affidavit elaborates upon grounds which have already been made the subject of the appellant's submissions; and 8. An unsigned letter purportedly from Dr Hannah is attached.
3. The respondent's solicitor has objected to the Appeal Panel considering the affidavit because both parties indicated to the Appeal Panel on 14 June 2016 that neither of them would be filing any further material. Deputy President S Westgarth has listened to the sound recording of the hearing on 14 June 2016. It is clear from that recording that the appellant foreshadowed the possibility of filing more submissions.
4. We are of the opinion that it is appropriate for us to consider the affidavit of 22 June 2016 but as is apparent from our reasons, which are set out below, we do not think that the respondent has been prejudiced by that decision.

Consideration

1. The Decision under appeal is an internally appealable decision and therefore governed by the provisions of s 80 of the Act and cl 12 of Sch 4 of the Act. Section 80 provides that an internal appeal may be made: 1. In the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel (s 80(2)(a)), and 2. In the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds (s 80(2)(b)).
2. Clause 12 of Sch 4 provides that an Appeal Panel may grant leave under s 80(2)(b) of the Act for an internal appeal against a decision made in the Consumer and Commercial Division only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. The decision of the Tribunal under appeal was not fair and equitable, or 2. The decision of the Tribunal under appeal was against the weight of evidence, or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
3. The Decision under appeal concerns the exercise of the power given by cl 10 of Sch 4 of the Act and in this case the Tribunal, exercising such power, dismissed the applicant's application on the basis that the applicant was conducting the proceedings in such a way that unreasonably disadvantaged the other party (see cl 10(1) and (2)(a)).
4. The question arises as to whether the Decision constituted an interlocutory decision of the Tribunal (in which case an internal appeal may be made with leave of the Appeal Panel) or whether the Decision was not an interlocutory decision (in which case the appellant may appeal as of right on any question of law, or with leave of the Appeal Panel, on any other grounds). If so (i.e. if the appeal is based on other grounds) then the provisions of cl 12 of Sch 4 apply.
5. We are of the view that the appeal should be dismissed and the orders under appeal affirmed. The following paragraphs explain our reasons. From the reasons it will be apparent that it is not necessary for us to conclude whether the Decision was an interlocutory decision (invoking s 80(2)(a)) or "any other kind of decision" (invoking s 80(2)(b)). However, in case the appeal involves a question of leave, we propose to grant leave but to dismiss the appeal.
6. The Tribunal's decision to dismiss the appellant's application as authorised by cl 10(2)(a) of Sch 4 of the Act was essentially based upon the finding that the appellant had failed to comply with directions made by the Tribunal to provide to the respondent the material that was relied upon by the appellant's expert as identified in the appellant's expert's report. The particular direction requiring the production of these documents was made on 13 May 2015.
7. The Decision contained the conclusion that the failure of the appellant to provide the documents referred to in the order of 13 May 2015 meant that the respondent was unable to obtain its expert evidence. In this appeal, the appellant makes no submission concerning that finding. In other words, the appellant would appear to accept that the non-provision of the documents referred to in the order of 13 May 2015 has the consequence that the respondent is unable to obtain its own expert evidence.
8. When the strike out application took place on 14 July 2015 the period of non-compliance with the order of 13 May 2015 was not very long. However, the appellant's expert's report which was provided on 29 April 2015 was long overdue and had been the subject of earlier directions (on 12 September 2013, 31 October 2013, 30 September 2014 and 6 March 2015). There was also an opportunity after the hearing on 14 July 2015 for the appellant to make submissions (which was acted upon) and during that period (and until the reserved decision was published) it was possible for the appellant to make the relevant documents available to the respondent.
9. The appellant states that there was a cost involved in making the documents available, which was unaffordable. The appellant also states that the documents had faded and therefore photocopying would not produce helpful material. It is our view that the cost issue could have been addressed by the appellant at least offering to make the documents available for inspection. If the respondent had received such an offer and rejected it then the Tribunal could have adjudicated on whether the respondent's refusal to inspect (and presumably make its own copies) would have been appropriate. If the documents have faded then that would throw doubt on the efficacy of the appellant's expert's report and it may be that the appellant's expert's report would be the subject of rejection, or at least rejection insofar as a part of the report relied upon or refers to faded illegible documents.
10. We note that the appellant states that he made an offer on 10 April 2015 to allow the documents to be inspected. In our view the email of 10 April 2015 cannot be construed in the manner for which the appellant contends. It appears to us that the offer is an offer to attend the office of the respondent's expert to prove the veracity of the "trading records, receipts and invoices". Precisely what that means is unclear but it is clearly not an offer to make all of the documents (or copies) referred to in the expert's report available to the respondent's expert. In any event, we note that the Tribunal order of 13 May 2015 postdates that offer. The Tribunal made the order for the provision of the documents on 13 May 2015 and it is that order which has not been complied with.
11. There was considerable delay between the hearing which occurred on 14 July 2015 and the publication of the Tribunal's decision on 11 February 2016. It would, in our view, have been possible for this relatively simple issue (i.e. making the documents available to the respondent or making copies of them available to the respondent) to have been resolved prior to the issue of the Decision. That failure has not been adequately explained.
12. Submissions have been made concerning the mental state of the appellant and whether the appellant had a reasonable excuse for non-attendance at the Tribunal hearing. However, in our view there was evidence sufficient to make it open to the Tribunal to decide (as it did) that the appellant did not lack capacity to understand and act on Tribunal directions.
13. The appellant submits that the Decision applied an incorrect principle of law in relying on the evidence of Mr and Mrs Waghorne on the basis that their evidence was unchallenged. In fact that submission is in error in stating that the evidence was accepted as unchallenged. The Decision made express reference to the fact that the appellant denied the evidence of Mr and Mrs Waghorne (see par 49 of the Decision). We do not accept the appellant's submission that the appellant was denied procedural fairness. The evidence discloses that the appellant had an adequate opportunity to appear at the hearing either himself or with the assistance of Mr Flint (who is described in the Decision as the appellant's McKenzie friend).
14. We do not accept that appellant's submission that there was a failure to make "due allowances and provide reasonable assistance" to the appellant on the basis of his medical disability. The Decision records the evidence of Dr Hannah and, relevantly, that Dr Hannah stated he was not in a position to give an opinion about the appellant's psychiatric condition. The appellant has not provided any persuasive evidence establishing that Dr Hannah was in a position to give such evidence. The appellant effectively disputes the record of Dr Hannah's evidence as contained in the Decision. The difficulty with the submission is that no transcript of Dr Hannah's evidence has been provided and therefore there is nothing to suggest that the Decision does not accurately record the effect of Dr Hannah's evidence. The report from Dr Hannah emailed to the appellant (attached to his affidavit of 22 June 2016) is unpersuasive. It is not signed and does not comply with the Tribunal's Code of Conduct for Experts.
15. There are some inconsistencies in the appellant's submissions. The appellant asserts that some documents referred to in the expert's report have faded and therefore there is no utility in providing copies. In addition the appellant asserts that some documents were in fact provided but does not identify which documents had been provided and which remain to be provided. However, it is clear that a considerable body of documents had not been provided as the appellant has objected to the provision of documents on the basis of the cost of photocopying them.
16. We do not accept the appellant's submission that the respondent or its representatives mislead the Tribunal by not drawing to the attention of the Tribunal the email dated 10 April 2015. Given the language of that email it is understandable that the respondent took the view that the offer contained in that email did not constitute provision of the documents required to be produced by the order of 13 May 2015. If the appellant had a contrary view, the appellant could have included that view in submissions to the Tribunal either before or after the hearing on 14 July 2015.
17. We do not accept the appellant's submission that the Tribunal was in error in concluding that the appellant had not complied with directions of the Tribunal on "multiple instances". The crux of the Decision is contained in par 57 of the Decision in which the Tribunal states that the conduct which could be most relevantly described as conduct reasonably disadvantaging the respondent was the appellant's failure to comply with directions to provide the material relied upon in the expert's report, being the directions made on 13 May 2015. Having found that the appellant failed to comply with that order the Member then considered whether there had been earlier orders requiring the provision of documents which orders had also not been complied with. The Decision records a number of such earlier orders and found that the appellant had failed to provide evidence on which the appellant was intending to rely to support his claim. This finding is contained in par 70 of the Decision and we do not see it as inconsistent with the finding contained in par 55 to the effect that the failure to comply with directions made prior to early 2015 do not constitute a basis for a finding that the appellant had conducted the proceedings in a manner that reasonably disadvantaged the respondent. However, those earlier failures were nevertheless regarded by the Tribunal as relevant to a consideration of whether to exercise the discretion to dismiss the proceedings having regard to the finding that there had been a failure to comply with the order of 13 May 2015. In short, the finding, which the appellant objects to, that there was a failure to comply on "multiple instances" does not, in our view, reflect any error of law, nor are we of the opinion that such finding invokes the provisions of cl 12 of Sch 4. The finding was reasonably open on the evidence and there has been no substantial miscarriage of justice.
18. Clause 10 of Sch 4 requires the Tribunal to form the opinion that a party (in this case the appellant) is conducting the proceedings in such a way that unreasonably disadvantages another party (in this case the respondent) by any conduct (including by failing to comply with an order or direction of the Tribunal). In this case the Tribunal made the finding that the appellant, by failing to comply with the order of 13 May 2015 and earlier orders, was conducting the proceedings in a way that reasonably disadvantaged the respondent because the effect of the non-compliance was to prohibit the respondent from engaging an expert to meet and rebut the evidence of the applicant's expert.
19. Clause 10(3) requires the Tribunal, before making an order dismissing the applicant's application to have regard to the following: 1. The extent to which the party is familiar with the procedures of the Tribunal, 2. The party's capacity to understand and act on, a direction of the Tribunal, 3. Whether the party suffers from a disability, 4. Whether the party is acting deliberately in failing to comply with the Tribunal's directions.
20. It is clear that the Decision addresses each of the above considerations. Subparagraph (a) above is dealt with in par 65 of the Decision. Subparagraph (b) is dealt with in par 66 of the Decision. Subparagraph (c) is dealt with in pars 67 to 69 of the Decision. Subparagraph (d) is dealt with in par 70 of the Decision.
21. The appellant objects to the finding in the Decision concerning the evidence of Mr and Mrs Waghorne. The Decision accepted Mr and Mrs Waghorne's evidence that the appellant had indicated to them that he had an intention to prolong the dispute with the respondent so as to cause cost and expense to Mr Spencer of the respondent. The Decision stated that that evidence was a factor weighing in favour of dismissing the application. The appellant's submission that the evidence of Mr and Mrs Waghorne was accepted as unchallenged evidence is rejected as the Decision makes it clear that the Tribunal was aware of the denial of that evidence by the appellant. The appellant's submission that he has been denied an opportunity to be heard is rejected. The Decision found that the appellant had an opportunity to be heard on 14 July 2015 (including an opportunity to cross examine Mr and Mrs Waghorne) and that the reason for the appellants non-appearance on 14 July 2015 was insufficient to justify not proceeding with the hearing on that occasion.
22. For the above reasons we are of the opinion that the appeal must be dismissed. We are of the view that no error of law has been identified and that there are no other grounds which would justify the appeal being upheld.

Costs

1. The respondent to the appeal seeks costs on an indemnity basis.
2. Although s60 of the Act deals with costs and generally provides that each party should pay their own costs, in relation to decisions made in the Consumer and Commercial Division (and appeals from decisions in that Division) rules 38 and 38A of the Civil and Administrative Tribunal Rule 2015 (the Rule) apply. Relevant to this appeal, r 38A states that in respect of appeals lodged on or after 1 January 2016 if the provisions for the determination of costs in the proceedings of the Tribunal at first instance differed from those set out in s60 then r 38A(2) applies. In this case the provisions for costs at first instance were provided for by r 38 and accordingly r 38A(2) applies to costs of the appeal. Rule 38A(2) provides that despite s 60 the Appeal Panel for an internal appeal to which the rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.
3. Accordingly, we are required to consider r 38. The relevant part of that rule provides that despite s 60 the Tribunal may award costs in the absence of special circumstances if the amount claimed or in dispute in the proceedings is more than $30,000.00. These proceedings claimed an amount in excess of $30,000.00 and therefore we are able to award costs even though there may be no special circumstances.
4. In this case, the respondent has been successful on the appeal and there is no reason in our view for not making an award of costs in favour of the respondent in respect of the respondent's costs of and incidental to the appeal. However, such order should not include the respondent's costs of and incidental to its unsuccessful application for security costs of the appeal.
5. The respondent seeks costs of the appeal on an indemnity basis. In the Appeal Panel decision in Cominos v Di Rico (No 2) [2016] NSWCATAP 138 an Appeal Panel (consisting of the President and Senior Member R Titterton) found that costs on an indemnity basis could be made by the Tribunal under the provisions of the Legal Profession Act 2004 and the Legal Profession Uniform Law (NSW) (the Uniform Law). In particular, that decision drew attention to the fact that under s 60(4) of the Act in awarding costs the Tribunal may order costs to be assessed on the basis set out in the legal costs legislation (as defined in s 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. The Uniform Law identifies in s 75 the fact that a Court or Tribunal may order costs to be assessed on an indemnity basis. In the decision in Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536 Sheppard J identified the circumstances in which an award for indemnity costs may be given. They include cases where there is some special or unusual feature which would justify the Court from departing from the ordinary practice of awarding costs on a party and party basis only.
6. In our view the appellant's conduct of the appeal (as distinct from the appellant's conduct of the proceedings at first instance) was not unusual and that there are no special circumstances or unusual features justifying an order that indemnity costs be ordered. The order we make is that costs on the ordinary basis be paid (excluding the costs of and incidental to the security application).

Orders

1. The Appeal Panel makes the following orders: 1. The appellant is granted leave to appeal; 2. The appeal is dismissed; 3. The orders made on 11 February 2016 are affirmed; and 4. The appellant is to pay the respondent's costs of and incidental to the appeal excluding the respondent's costs of and incidental to the application for security for costs.

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: 10 August 2016