T & S Nominees Pty Ltd v Chief Commissioner of State Revenue

NCAT Appeal Panel|2016-11-08

REASONS FOR DECISION

On 16 June 2016 the Tribunal dismissed summarily an administrative review application brought by T & S Nominees Pty Ltd in relation to a land tax assessment issued by the Chief Commissioner of State Revenue. In granting the Chief Commissioner's applation for summary dismissal, the Tribunal relied on each of grounds (b), (c) and (d) of s 55(1) of the Civil and Administrative Tribunal Act 2016 (the Act): see T & S Nominees Pty Ltd v Chief Commissioner of State Revenue [2016] NSCATAD 119. Section 55(1) provides relevantly: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: ... (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
On 13 July 2016 the company (which we will refer to, usually, in these reasons as 'the applicant') appealed against the decision.
On 4 August 2016 the Appeal Panel dismissed the appeal under s 55(1)(c) for non-appearance. Section 55(2) allows an applicant or appellant whose appeal is dismissed on this ground to apply for reinstatement. It provides: (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.
On 12 August 2016 the applicant lodged an application for reinstatement of the appeal. Rule 36 of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) provides: Applications to reinstate dismissed proceedings for failure to appear 36. Unless the Tribunal grants an extension under section 41 of the Act, an application made to the Tribunal to reinstate proceedings that were dismissed under section 55 (1) (c) of the Act must be made within 7 days after the Tribunal dismissed the proceedings that are sought to be reinstated.

Background

On 14 August 2014 the applicant filed its application for administrative review of the respondent's decision disallowing its objection to his assessment. The subsequent procedural history is set out in the Tribunal's decision. The Tribunal fixed the case for hearing on 1 and 2 February 2016. As at 20 January 2016, the applicant had not complied with the Tribunal's timetable for the filing and service of further evidence and submissions. On that day the respondent, who needed time to reply to that material prior to the hearing, raised with the applicant the issue of its ability to proceed on 1 and 2 February.
The applicant did not appear when the case came on for hearing on 1 February 2016. The respondent applied for summary dismissal of the proceedings primarily on the ground of the respondent's non-appearance. The application was listed for hearing on 11 March 2016. Both parties were present on that occasion. Ms Elizabeth Bishop, of counsel, appeared for the Chief Commissioner. Ms Sarah Haddad, of counsel, appeared for T & S Nominees Pty Ltd. As noted earlier, the Tribunal granted the application in its decision issued 16 June 2016.
The Tribunal dismissed the proceedings under s 55(1)(b) because, on the applicant's own case, they were lacking in substance. The Tribunal dismissed the proceedings under s 55(1)(c) of the NCAT Act because of the applicant's failure to appear, without a reasonable explanation, at the hearing set down for 1 and 2 February 2016. The Tribunal dismissed the proceedings under s 55(1)(d) for want of prosecution. It referred in its reasons to the conduct of the applicant that justified those conclusions.
It ordered the applicant to pay the respondent's costs, as from 20 January 2016. The usual rule is that each party bears their own costs (NCAT Act, s 60), unless 'special circumstances' justifying an award of costs are demonstrated. The Tribunal was satisfied that this was such a case.
On 13 July 2016 applicant lodged an appeal against the decision under s 80(2)(b) of the Act. The Act gives an appellant a right to appeal on any question of law, and allows appeals on other grounds with the leave of the Appeal Panel. The Notice of Appeal gave 13 reasons (or 'grounds') as to why the decision should be set aside, and the matter remitted. The appeal was cast as a 'question of law' appeal. There was no application for leave to traverse other grounds (i.e. questions of fact).
The respondent filed a detailed Reply on 2 August 2016 replying in some detail to each of the 13 grounds. In the Reply it sought an order for its costs.
The matter was listed, as is usual, for directions before a single member of the Appeal Panel of the Tribunal on 4 August 2016 at 10am. The applicant failed to appear. As noted above, the Appeal Panel summarily dismissed the appeal under ground (c) of s 55(1) of the Act for non-appearance, set out above.

Preliminary Matters

At the directions held on 27 September 2016 in preparation for this hearing, the Appeal Panel gave leave to the applicant to be represented by Sarah Haddad. On 3 November 2016 she notified the Tribunal by email that Mr Jim Haddad, 'will represent the applicant'. Mr Jim Haddad is referred to in the reasons of the Tribunal. The Tribunal notes that he is not a director of the applicant company, but described himself in an affidavit as 'the only person with sufficient knowledge of the facts in this matter to provide instructions on behalf of the applicant company'.
The respondent opposed the grant of leave to appear to Mr Haddad because he was not a director of the applicant company and there was no evidence that he had authority to bind the company. The respondent relied on a current company search which showed that other members of the Haddad family are the company's directors, i.e. Samira Haddad (born 1937, his mother), and Milly Haddad (born, 1965, his sister).
We permitted Mr Haddad to appear in relation to the question of whether he should be given leave to appear. He participated in the hearing by telephone link, from the hospital where he was in care for a serious illness. He was able to communicate effectively. (We understand that he has since died.)
We decided to grant him leave to appear despite the difficulty that he was not a director of the applicant company, a matter properly raised by the respondent. We were satisfied that he had a general familiarity with the dispute and the proceedings.
After the hearing (on 10 November 2016), the presiding member of this Panel (Judge O'Connor) decided to make a disclosure relating to an association with Ms Haddad (involvement in an orchestra) that might be seen as raising a difficulty in relation to continuing to sit in the matter. The respondent replied that it had no concern. The applicant did not reply.
As we have foreshadowed, our conclusion is that an extension of time for filing of the application for reinstatement should not be permitted in the circumstances of this case. While we are not obliged, in light of that conclusion, to consider the question of whether the application would have been granted had it been permitted to proceed, we will begin by explaining our view in that regard, as the matter was argued by both parties.

Whether Reasonable Explanation for Non-Appearance at Directions Hearing

The applicant did exercise its right to appeal against the Tribunal's summary decision in a timely and orderly way. The respondent was put on notice that the applicant wished to proceed with an appeal. To satisfy s 55(2) all that is required is a 'reasonable explanation' for the non-appearance.
Ms Haddad deposed in her affidavit of 11 October 2016 that she was affected on the day by back pain, and was somewhat unwell. While she is not precise as to this matter, it would appear from her account of subsequent events that she arrived at the Tribunal's building (the John Maddison Tower) at or around 10.00 to 10.05am.
In the application form filed on 12 August 2016 she stated that the lift she took that morning, Lift 4, not go past Level 1 of the building (the Tribunal's hearing room is on Level 10). She said she was stuck in the lift with two other persons for 5 minutes and had to get assistance from a security guard.
In her affidavit she deposed that she then transferred to another lift that took her to Level 10. She said that when she reached the hearing room the presiding member was present. He advised her that her matter had been dismissed, but he would be happy to have the matter re-listed at 12pm if she had consent to relisting from the respondent's legal representatives. She stated that the presiding member informed her that if they did not consent to re-list she could apply within 7 days to reinstate the matter.
In her affidavit she gave an account of steps she took to contact the legal representatives, by leaving messages. She deposed that she received no reply. Her version of the steps she took is questioned in an affidavit from the respondent's solicitor, Ms McKee, and was also questioned from the Bar table at hearing by Ms Ensor. We do not need to address these differences. The critical question is the reasonableness of the explanation for non-appearance, not the steps taken to remedy the problem.
Ms Haddad's unwellness on that day is corroborated by medical certificates (the one attached to the application for reinstatement and the one attached to her affidavit of 11 October 2016). She was not required for cross-examination by the respondent, and to that extent her evidence is not contested. We therefore accept it.
While in a case with little or no history of procedural defaults and non-appearances, the explanation given by Ms Haddad might be seen as reasonable, the respondent contended that it should not be regarded as reasonable in the present case with its history of procedural defaults and non-appearances.
The respondent also drew attention to the warnings that appear in Tribunal notices in relation to the power of the Tribunal to dismiss proceedings at any stage and urging parties to be in attendance at least 15 minutes before the scheduled time for a hearing.
That practitioners are sometimes late for hearings, especially directions hearings, is, regrettably, not unknown. It might have been better had Ms Haddad notified the Registry, a tribunal officer, or the other party's legal representatives that she was running late, and arranged for the hearing to be delayed a little. Requests of this kind are, in our experience, usually accommodated in this Tribunal.
We consider that, in the circumstances, the explanation given by Ms Haddad should be regarded as reasonable. We are influenced in that regard by the following factors. The unwellness to which Ms Haddad referred in her affidavit (back pain) is corroborated by a medical practitioner and a prescription for pain-killing tablets resulted. In addition, we need to give some regard to the interests of the client in a matter of this kind. The appeal itself had been made within time in accordance with the rules. Were we to reject a practitioner's explanation, the client would lose a properly exercised right to appeal because of a default by the practitioner.

Extension of Time Application

The power given to the Tribunal by s 41 is at large. The Tribunal is not directed, for example, only to consider whether there is a 'reasonable explanation' for the late lodgment of process (cf Administrative Decisions Tribunal Act 1997, s 57 (now repealed)) or a 'reasonable explanation' for non-appearance, as in s 55(2) applications. Ms Haddad in her affidavit evidence did, as we have noted above, address circumstances seen as relevant to the lateness of her arrival at the tribunal hearing room on 4 August 2016.
The respondent took the opportunity given by the breadth of the discretion given to the Tribunal by s 41 to canvass additional considerations that were negative to allowing this matter to resume.
The respondent accepted that the lateness in issue, one day, was small. The respondent acknowledged that it might not have pressed an objection to lateness of such a small degree had the proceedings otherwise been conducted in an orderly way.
As noted by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, while the s 41 discretion is unfettered it must be exercised judicially. In exercising the discretion, the Tribunal should also have regard to the Act's guiding principle that the Tribunal 'is to facilitate the just, quick and cheap resolution of the real issue in the proceedings': s 36. In that case the Appeal Panel referred to the following as usual factors to be taken into account in relation to an application for extension of time to allow late lodgment of process: the length of the delay; the reason for the delay; the applicant's prospects of success - put as whether the applicant has a 'fairly arguable' case (as distinct, for example, from 'strongly arguable'; and the extent of any prejudice suffered by the respondent.
Rules as to time should not be applied in an automatic or oppressive way. As noted by McHugh J in Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2] (some citations omitted): The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935: "The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.."
These comments were endorsed in Jackson. The Appeal Panel also noted: 21.Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson ... makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice.
In his oral submissions at hearing Mr Haddad said he did not know why the application for reinstatement was filed late. He queried whether lateness of one day did any harm. Mr Haddad argued that it was in the interests of justice that the applicant be permitted to have its appeal heard. The decision meant that the merits of the applicant taxpayer's case were never addressed. If, as the applicant had submitted, the summary dismissal of their case was unfair and in error, then the proceedings at first instance would resume. The applicant would obtain a ruling on the merits of its claim in reply to the respondent's assessment decision that its land did not fall subject to the new provisions governing the assessment of duty in respect of industrial land in the years in issue.

Absence of Explanation

Clearly, an applicant would be expected to give an explanation as to the default. As noted in Chen v Baxter [2014] NSWCATAP 50 at 40: 'The lack of an explanation of the delay weighs against granting an extension of time: Aon Risk Services v Australian National University (2009) 239 CLR 175.'
The applicant had the opportunity on the application form to explain why the application was not lodged in time and to raise any relevant considerations as to why an extension of time should be granted. The applicant did not do so and in fact incorrectly asserted in the body of the form that it did not require an extension of time.
The respondent gave notice of its intention to oppose any extension of time for lodgement of the application for reinstatement in its principal submissions filed 16 September 2016. Those submissions expressly contended that the application to reinstate had not been lodged in time (see paras [4] and [21]). Para [21] provides the precise time calculation and refers to the need to have the Tribunal extend time for it to proceed. At para [22]-[23] the submissions said: The applicant has not made an application for the Tribunal to extend the period of time for making an application to the Tribunal to reinstate the Appeal.
The respondent's submissions went on to make detailed submissions as to why the Tribunal should not, of its own motion extend time for making of the application to reinstate, see esp paras [24]-[45].
Ms Haddad prepared the applicant's written submissions in support of reinstatement of the appeal. They were annexed to Ms Haddad's affidavit of 11 October 2016. The affidavit dealt with the circumstances of her non-appearance at the directions hearing on 4 August 2016. The submissions addressed the question of whether her explanation for being late on that day should be accepted. We have referred to them in our consideration of that issue, above.
The submissions assert, without any elaboration, at para [10] that: 'In this case, the reinstatement application was filed in time'. This comment was made following a discussion in para [9] of an Appeal Panel ruling in 2014 that reinstated an appeal, where leave had been given to lodge out of time the application itself, and that was well outside the 7 day time limit: Adelaide River Resources NT v Song [2014] NSWCATAP 114.
The respondent filed submissions in reply on 17 October 2016. In those submissions the respondent reiterated that the first task of the Appeal Panel was to decide whether to extend time for the applicant to apply to reinstate the appeal. The respondent noted again that the applicant had not applied for an extension of time. The submissions correctly stated that the question of whether there is a reasonable explanation for the failure to attend on 4 August 2016 does not come under notice until there is a grant of an extension of time for filing of the application to reinstate.
At this point Ms Haddad remained the legal representative on the record in these proceedings for the applicant. She, in effect, gave notice of ceasing to act by her email of 3 November 2016.
In our view, the applicant must be regarded as being aware, at least constructively, by that time that the respondent would object to the extension of time to allow the application to reinstate to proceed.
The applicant was, we consider, given ample opportunity to make any submissions in reply on the point and put on any evidence providing an explanation.

History of Proceedings

Most importantly there is the history of the proceedings. The respondent's submissions gave considerable emphasis to that history. We have set out some of it at the beginning of this decision.
The respondent relied mainly on the history as given by the Tribunal below in the decision that the applicant appealed. The respondent referred to the prejudice his office would suffer if the appeal was allowed to recommence. The respondent saw the latest defaults (minor as each of them might be seen in isolation) as belonging to a history of procedural defaults in this litigation.
In her written submissions filed 11 October 2016 Ms Haddad challenged some aspects of the procedural history as recounted by the Tribunal below, and gave emphasis to procedural defaults said to have been committed by the respondent that contributed to delays in the proceedings.

Consideration

Strict compliance with rules of procedure facilitates the timely and efficient administration of the justice system.
The applicant bears the burden of persuading the Court that there are proper grounds to grant an application for an extension of time: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [80]; endorsed, Nanschild v Pratt [2011] NSWCA 85 at [44] per McColl JA.
Ultimately we must approach the question of whether to extend time in the way put by McHugh J, in Gallo v Dawson, i.e.

Has the applicant shown that 'strict compliance with the rules will work an injustice upon the applicant'.
'In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.'

Mr Jim Haddad submitted that all the applicant wanted was a merits review of the respondent's decision denying the claim for exemption from land tax for the years in question. The history given in the judgment of the Tribunal below indicates that the land had been exempt from land tax for some years but a change in the law relating to exemptions had, in the respondent's view, deprived the land of its previous exemption.
As we have noted, the respondent notified the applicant in the submissions lodged 15 September 2016 that it would object to the grant of an extension of time. The material filed by Ms Haddad on behalf of the applicant failed to grapple with the question. It simply asserted that the application had been in time.
If there was any doubt that the respondent wished to press the objection, that was made clear by the respondent's submissions in reply provided 17 October 2016. At this stage and until 3 November 2016, the applicant remained represented by Ms Haddad. The issue remained unaddressed, and therefore we have been provided with no explanation for the delay.
We agree with the respondent that it is appropriate to set the failure to file application in time in the wider background of the way this case has been conducted by the applicant.
A decision to dismiss summarily proceedings is an extreme one. A plaintiff or applicant can only be deprived in this way of their right to a full hearing according to very strict criteria. In General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, Barwick CJ summarised the general principles as follows: 8. ...It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". (at p129) ... 10. As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 where he says (1949) 78 CLR, at p 91 : "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed. (at p130)
On their face, the Tribunal's reasons had regard to those strict criteria in reaching the conclusion it did. The Tribunal gave a number of reasons as to the inadequacy of the applicant's prosecution of its application for review.
Most importantly in our view, its reasons demonstrated that evidentiary proofs had not been supplied by the applicant in relation to the critical question of the nature of the activities carried on the subject land. While administrative review applications have a different character to civil actions, the relevant legislation provides that a taxpayer who brings an administrative review application to challenge an objection decision of the Chief Commissioner bears an onus of proof: see Taxation Administration Act 1996, s 100(3).
The Tribunal listed numerous procedural defaults on the part of the applicant, among them failures to appear. See the narrative at [17]-[33] of those reasons. The Tribunal's narrative is founded on affidavit evidence supplied by the practitioners who handled the respondent's case. The Tribunal also took account of affidavit evidence for the applicant from Mr Jim Haddad and Ms Milly Haddad, as well as its own knowledge of the proceedings.
Ms Haddad's case for the applicant, as presented in the grounds of appeal and the submissions of 11 October 2016, related, as we see it, to weight. Her submission went to the need for balance, and the Tribunal's failure, as her client saw it, to take account of failings by the respondent in adhering to timetables and other directions, which were seen as contributing to the omissions of the applicant. It is difficult to demonstrate that the weighing of evidence undertaken by a trial court or tribunal has so miscarried that it amounts to an error of law, as an appeal on a question of law requires.
We agree with the respondent's reply submissions of 17 October 2016 that many of the submissions made by Ms Haddad on 11 October 2016 make bold statement in reply, including as to prospects, that are not supported by any evidence led at first instance in these proceeding.
We are not satisfied that the applicant has established that the appeal case is of the degree of strength sufficient to justify an extension of time, i.e. that it can be said to 'fairly arguable' (the test preferred by the Court of Appeal in Tomko at [55] (per Basten JA)).
In our view, the applicant has not demonstrated that insistence on strict compliance with the rule relating to reinstatement of applications will work an injustice.
The applicant had the opportunity to present its case and have it heard in full at first instance. The applicant did not achieve that, because of the summary dismissal ruling. One would have expected in these circumstances punctiliousness in adhering to procedural obligations in relation to the appeal. The appeal itself was lodged in time. As we have indicated, had the only issue before us been the non-appearance at the directions hearing, we would have accepted the explanation as reasonable and reinstated the appeal.
However the further failure in relation to the lodgement of the application for reinstatement in time was, as we see it, one omission too many, especially in circumstances where the applicant's legal representative received clear notice that the respondent would raise the objection and no substantive reply was provided to the respondent or the Tribunal in a timely way. This left Mr Jim Haddad, we recognise, at a disadvantage on the day of the hearing, in that he was not aware of this further issue. But in our view the applicant had had plenty of opportunities by that point to respond to this objection. The applicant should have kept itself fully informed of the issues raised by the respondent.
As counsel for the respondent submitted in her submissions in reply, the Tribunal must seek to do justice between the parties, while promoting the orderly and efficient conduct of proceedings, and provide finality to litigation not only for applicants but also for respondents.
Our conclusion is that the applicant's lateness in lodging the application for reinstatement should not be forgiven, even though viewed in isolation it was minor. We have had regard to the absence of any explanation for the delay, the history of the proceedings as a whole, and, what we consider to be, the low arguability of the appeal.
The result therefore is that we do not grant an extension of time to file the application for reinstatement, with the consequence that the order made by the Tribunal on 4 August 2016 stands.

Costs

In its submissions of 16 September 2016, the respondent applied for its costs of 'this proceeding'. It submitted that this proceeding would not have been necessary had the applicant appeared on 4 August 2016. Therefore, the submissions continue, the applicant should bear the costs of this proceeding regardless of outcome.
Section 60 of the NCAT Act provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section: costs includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
The applicant's submissions of 11 October 2016 did not reply to this application.
We agree that the respondent has demonstrated special circumstances justifying an award the costs of this proceeding. Failure to appear at a directions hearing prolongs the proceedings unnecessarily. The further proceedings with which this application is concerned have further prolonged the proceedings. Clearly these are special circumstances warranting an order for costs in the terms sought. We should explain that by 'this proceeding' we understand the respondent to have meant: the directions hearing of 4 August 2016; and the subsequent steps up to and including the hearing of the applicant's application on 8 November 2016.
We have not dealt here with the particular issue of the costs of the appeal itself. If the respondent wishes to be heard on that issue, we direct it so to notify the Registry and the applicant on or before 17 January 2017, and directions will be made.

Order 1. Refuse extension of time for lodgement of the application to reinstate the appeal. 2. The applicant pay the respondent's costs of this proceeding, as agreed or assessed.

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

Amendments 13 January 2017 - Deleted final sentence of para [18]. Error. 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: 13 January 2017

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