Al Mahmood v Christofi (RLD)
[2013] NSWADTAP 31
•10 July 2013
Administrative Decisions Tribunal
New South Wales
Case Title: Al Mahmood v Christofi (RLD) Medium Neutral Citation: [2013] NSWADTAP 31 Hearing Date(s): 17 June 2013 Decision Date: 10 July 2013 Jurisdiction: Appeal Panel - Internal Before: S Higgins, Deputy President
P Molony, Judicial Member
J Butlin, Non-Judicial MemberDecision: 1. The appellants' application for an extension of time within which to file and serve an Amended Notice of Appeal is refused.
2. The appellant's appeal is dismissed pursuant to paragraph 73(5)(g)(iii) of the Administrative Decisions Tribunal Act 1997.
3. The appellant to pay the respondents' costs in the amount of $1,000.00.
Catchwords: Appeal - application for dismissal of appeal - non appearance of appellant at hearing - failure by appellant to comply with orders - want of prosecution
Appeal - application to adjourn hearing - no appearance by the appellantLegislation Cited: Administrative Decisions Tribunal Act 1997
Civil Procedure Act 2005
Retail Leases Act 1994Cases Cited: Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
Sullivan v State of New South Wales (NSW Police Force) [2009] NSWADT 2
Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94Category: Principal judgment Parties: Abdulla Al Mahmood (Appellant)
George Christofi (First Respondent)
Elizabeth Christofi (Second Respondent)Representation - Solicitors: Al Mahmood (Appellant in person)
D Carson (Respondents)File Number(s): 129042 Decision Under Appeal - Before: Retail Leases Division - Date of Decision: 30 November 2012 - Citation: Mahmood v Christofi (No 2) [2012] NSWADT 251 - Court File Number(s): 105210115014
REASONS FOR DECISION
Introduction
This appeal was listed for hearing on 17 June 2013. Prior to the hearing, on 11 June 2013, the appellant, Abdulla Al Mahmood, wrote to the Tribunal seeking an adjournment of the hearing. On the same day, the appellant provided the respondents, George and Elizabeth Christofi, with a copy of his letter to the Tribunal. The respondent did not consent to an adjournment and confirmed their earlier advice that they would be appearing at the hearing and making an application for dismissal of the appeal. That application, they advised would be made on the basis of the appellant's failure to comply with the orders made by the Appeal Panel on 5 April 2013.
When the appeal came before us on 17 June 2013, there was no appearance by, or on behalf of the appellant. Mr Carson, solicitor for the respondents, did appear. The respondents were also present.
At the commencement of the hearing, Mr Carson formally opposed the adjournment of the hearing and made an application for the appeal to be dismissed on the basis of the appellant's non appearance and his failure to comply with the orders of the Appeal Panel made on 5 April 2013: see para 73(5)(g)(iii) and (iv) of the Administrative Decisions Tribunal Act 1997 (ADT Act).
We made no orders in regard to the appellant's adjournment application and proceeded to hear oral submissions from Mr Carson in regard to the respondents' dismissal application. At the conclusion of hearing submissions we reserved our decision. We have now considered all the material before us in regard to these applications. For the reasons set out below we have decided: (a) to refuse the applicant's application for adjournment and (b) to dismiss the appellant's appeal.
Background
The appellant has appealed the decision of the Tribunal in regard to his retail leases claim against the respondents: see Mahmood v Christofi (No 2) [2012] NSWADT 251. A brief background to the appellant's claim is as follows:
in January 2010, the appellant became the lessee of a retail shop, owned by the respondents. That lease was subject to the provisions of the Retail Leases Act 1994 (RL Act). The appellant ceased trading from the shop on 28 March 2011;
in December 2010, a dispute arose between the appellant and the respondents in regard to the retail shop lease. The appellant lodged a retail leases claim, under the RL Act, against the respondents (file no. 105210). On 23 December 2010, Judicial Member Fox, made interim orders in regard to the dispute, including an interim order staying the respondents' threatened lockout of the appellant from the shop;
subsequently, on 9 February 2011, the appellant lodged a further retail leases claim against the respondent (file no. 115014), and
both claims were heard on 9 December 2011 and 10 February 2012. The appellant sought an order for compensation under s 34 of the RL Act (i.e. compensation for disturbances) and orders in respect to loss and damage under s 72 of the RL Act.
The Tribunal's decision was published on 30 November 2012. The Tribunal made the following determination:
1. Allow $1,081.69 to the applicant on sale of stock, this amount to be set off against rent owing by applicant.
2. The applicant breached a fundamental term of the lease being payment of rent.
3. The lessors provided sufficient opportunity for the applicant to remove his goods, fixtures and fittings from the premises.
4. The lessors are not responsible for the damages claimed by the applicant.
5. The applicant's business was interrupted by the activities of another lessee in the arcade for a period of two (2) weeks during October/November 2010 and an allowance for no rent to be payable for this period is to be made by the lessors against outstanding rent.
6. There is insufficient evidence to disclose responsibility for the removal of the forklift from the premises.
7. The actions taken by the lessors to secure the goods and equipment of the applicant were sufficient.
8. The lessors are not responsible for the loss of business damages claimed by the applicant. The applicant was aware as at 26 August 2010 (referred to in his facsimile of that date) of the proposals submitted to the Council which included construction of stairs in the arcade contrary to his evidence that he was not aware of this proposal until February 2011.
9. Each party to pay own costs
History of this appeal
The appellant lodged his appeal, on 20 December 2012.
In his Notice of Appeal the appellant said his appeal was made on a question of law and that he was seeking leave to extend his appeal to the merits of the Tribunal's decision. The appellant identified 8 paragraphs in the Tribunal's reasons for decision, which he asserted to have been 'inappropriate' on the basis of the evidence before the Tribunal.
On 20 December 2012, the Registrar wrote to the parties and advised that the respondent was to file and serve a Notice of Reply to the appellant's appeal within 21 days of receiving the Notice of Appeal. The parties were also informed about the three differing ways in which the appeal would be managed. This included the parties being directed, in writing, to comply with standard directions to lodge and exchange submissions or other material and when this was done, a hearing date would be set.
On 10 January 2013, the respondent filed and served a Notice of Reply to the appellant's appeal.
On 21 January 2013, the Registrar wrote to the parties informing them of directions made, in chambers, by Deputy President, M Chesterman, for the filing and serving of written submissions (i.e. appellant to file and serve submissions by 18 February 2013 and the respondent to file and serve submissions in reply by 14 March 2013).
On 24 January 2013, the appellant filed and served a written response to the respondents' Notice of Reply.
On 13 February 2013, the Registrar wrote to the parties to inform them that the hearing of the appeal had been set down for half a day, on 5 April 2013.
On 14 March 2013, the respondent filed and served its written outline of submissions and an affidavit sworn by each respondent.
On 5 April 2013, the appellant's appeal came before the Appeal Panel for hearing. Deputy President Chesterman was the Presiding Member of the Appeal Panel at that time. Appearing for the appellant was J R Young, of counsel and appearing for the respondents was Mr Carson, solicitor. On the application of the appellant, the Appeal Panel made the following orders:
1. Leave is granted to the Appellant to file an Amended Notice of Appeal.
2. The Appellant is to pay the Respondents' costs thrown away by virtue of the Appellant being granted leave to file an Amended Notice of Appeal.
The Appeal Panel also made the following directions/orders:
1. The parties are to commence negotiations for settlement of their dispute within 7 days.
2. The Appellant is to file and serve an Amended Notice of Appeal within 21 days.
3. The Respondents are to file and serve a Reply to the Amended Notice of Appeal within a further 14 days.
4. The Appellant is to file and serve his submissions within a further 14 days.
5. The Respondents are to file and serve their submissions within a further 14 days.
6. The matter is set down for hearing at 10 a.m. on 17 June 2013 for half a day.
There was no compliance with these directions. In particular, the direction that the parties were to commence negotiations for settlement and the appellant to file and serve an Amended Notice of Appeal. The latter direction should have been complied with by 26 April 2013. As a consequence of these failures, the directions for the respondent to file and serving a Reply and written submissions could not be complied with.
As we have mentioned, on 11 June 2013, more than 6 weeks after the date on which the appellant had been ordered to file and serve his Amended Notice of Appeal and 4 working days prior to the hearing of his appeal, the Tribunal received a letter from the appellant seeking an adjournment of the hearing. In his letter to the Tribunal the appellant said:
'... [I] was supposed to submit my submission for the hearing. Because I couldn't arrange the payment for the Legal representative I was not able to prepare the submission.
I need more times (sic) to prepare the document. I am looking about 8 weeks from hearing date 17th June to file my documents. I would like to change the hearing date.
I would like to pray and hope that you would be kind enough to grant us the Adjournment for the above matter. And thus oblige me.'
The appellant's letter, we note, was written one week after Mr Carson, on behalf of the respondents, had written to the appellant noting his failure to comply with the 5 April 2013 directions of the Appeal Panel. In his letter, Mr Carson said:
'... [You] are in gross default of the Directions given by Mr Chesterman and can only assume that you have abandonded the Appeal.
Regardless of what action you may take between now and the 17th June, I give you notice, on instructions from my clients, that when the matter comes before the Appeal Panel on 17th June, I will be making an application that your Notice of appeal be struck out to bring these proceedings to a conclusion. I will also be seeking an order that the costs of the Appeal proceedings be paid by you.
On 11 June, the appellant emailed a copy of his letter to Mr Carson, who responded at 8:55 a.m. the following morning. In his response, Mr Carson reiterated the position of the respondents as stated in his letter of 4 June 2013 (i.e. his instructions were to appear at the hearing, on 17 June, 'to apply that your Appeal be struck out with an order for costs in favour of my clients.') On the same day (12 June 2013) the appellant faxed a copy of the email exchanges to the Registry of the Tribunal.
The Registry responded to the appellant's adjournment application, by leaving a message on his mobile telephone number. We note that this is the telephone number the appellant identified as his contact number in his Notice of Appeal. In a handwritten note at the bottom of the applicant's letter, an officer of the Registry has written:
'LEFT MESSAGE FOR MR AL MAHMOOD THAT HE SHOULD ATTEND HEARING ON 17/6/13 & MAKE AN APPLICATION AT THE COMMENCEMENT TO ADJOURN.
[signed]
12.6.13On 17 June 2013, the commencement of the appellant's appeal was stood down from 10 am to 12 noon. The respondents and Mr Carson, who were present at the Tribunal before 10 am, were advised of the later starting time. The appellant was not present at that time, nor had he communicated with the Tribunal prior to 10 am that morning.
As the hearing of the appellant's appeal was to commence later that morning, at the request of the Appeal Panel, an officer of the Registry telephoned the appellant to inform him of the later starting time of his appeal. In a file note, dated this day, the Registry officer noted that she had rung the appellant's mobile telephone number at 10:25 am and left a message advising him that the hearing of his appeal would proceed at 12 noon.
When the matter did proceed at 12 noon, there was no appearance by the appellant. As we have noted, the respondents and their solicitor, Mr Carson, were present and did appear. At the commencement of the hearing Mr Carson objected to an adjournment and formally made an application that the appeal be dismissed and that the appellant pay the respondents' costs for the appeal. As we have noted, at the conclusion of the hearing, we reserved our decision.
Subsequent to having reserved our decision, at 12.55 p.m., the Registry received, by facsimile, a letter from the appellant and a copy of a medical certificate dated that day. We have dealt with the content of the letter and medical certificate below. A copy of the letter and medical certificate were forwarded to the respondents. On 24 June 2013, Mr Carson wrote to the Tribunal, noting that the appellant's letter and medical certificate were received after the conclusion of the hearing and it was assumed that the letter and medical certificate would not be taken into consideration in the deliberations of the Appeal Panel in regard to his clients' dismissal application.
Consideration
As we have noted, there are two applications for determination. These are the applicant's application for adjournment and the respondents' application for dismissal.
The Tribunal's procedural powers are set out in Chapter 6 of the ADT Act. These powers apply to proceedings before the Appeal Panel of the Tribunal as well as first instance proceedings before a single Judicial Member of the Tribunal or a first instance panel of Judicial and Non-Judicial Members of the Tribunal.
The relevant provision in regard to procedure generally is contained in s 73 of the ADT Act. That section provides:
73 Procedure of the Tribunal generally
(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) The Tribunal is to take such measures as are reasonably practicable:
(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and
(b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and
(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.(5) The Tribunal:
(a) is to act as quickly as is practicable, and
(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and
(d) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and
(e) may require a document to be served outside the State, and
(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and
(g) may dismiss at any stage any proceedings before it in any of the following circumstances:
(i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate,
(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
(iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings,
(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and
(h) may reinstate proceedings that have been dismissed because of an applicant's failure to appear if the Tribunal considers that there is a reasonable explanation for that failure.(5A) An application made to the Tribunal to reinstate proceedings under subsection (5) (h) must be made:
(a) within 28 days after the Tribunal dismissed the proceedings that are sought to be reinstated, or
(b) within such further time as the Tribunal may allow.(6) A judicial member may:
(a) hold a directions hearing in relation to any proceedings before the Tribunal, or
(b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal.
(a) Adjournment application
It is convenient to first deal with the appellant's adjournment application. The essence of the appellant's adjournment application is an adjournment of the hearing so that he can comply with the orders made on 5 April 2013. There is no dispute that the Tribunal has the power to make the orders sought. It is a discretionary power which must be exercised having regard to the procedures of the Tribunal generally (i.e. to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms and to act as quickly as is practicable).
We have considered all the material before us, including the correspondence received from the appellant after we had concluded the hearing and reserved our decision. We have not sought further written submissions from the respondents as we have found, on the material before us, the appellant has failed to provide a satisfactory explanation for (a) his failure to comply with the orders made by the Appeal Panel on 5 April 2013 and (b) his failure to appear at the hearing on 17 June 2013.
In regard to his failure to file and serve his Amended Notice of Appeal within time (i.e. by 26 April 2013), the appellant asserts he was unable to do so because he could not arrange for the payment for legal representation. In our view, the appellant's explanation, made so close to a hearing and many weeks after the date on which orders were to be complied with is entirely unsatisfactory. He knew many weeks ago that he would be in default of complying with the orders made on 5 April and yet he made no effort to inform the respondents, or the Tribunal of this and seek appropriate orders. He had every opportunity to do so. Given the timing and nature of the appellant's explanation, we are also left with the impression that his application for adjournment and an extension of time in which to file and serve his Amended Notice of Appeal is more one of convenience rather than having any real substance.
During the course of the hearing, Mr Carson advised that no negotiations had taken place as ordered by the Appeal Panel on 5 April 2013. Mr Carson said that other than a brief discussion, in passing, with the appellant's former counsel, no negotiations were undertaken. We understood Mr Carson to say that counsel for the appellant indicated that the appellant was not interested in any negotiations unless the respondents were willing to pay him some money.
The appellant has initiated this appeal and it is incumbent on him to prosecute it expeditiously. In our view, the appellant has failed to do so and in the absence of providing a satisfactory explanation for that failure, it is appropriate to refuse his application to extend time within which to file and serve an Amended Notice of Appeal.
As a consequence, in the ordinary course of events, the hearing would proceed on the appellant's current Notice of Appeal. In the absence an appearance by the appellant, on 17 June, the respondents' application for dismissal at the commencement of the hearing and our decision to make the orders sought, it is unnecessary for us to deal with the appellant's adjournment application. However, on the basis of the material before us, had the appellant appeared on 17 June 2013, we would have refused his application for adjournment.
(b) Dismissal application
As can be seen from the terms of para 73(5)(g) of the ADT Act, the power to dismiss proceedings (including an appeal) is discretionary, even where the matters prescribed in para 73(5)(g)(i) to (iv) of the ADT Act have been met: see Sullivan v State of New South Wales (NSW Police Force) [2009] NSWADT 2 at [17]. In this appeal the relevant paras are 73(5)(g)(iii) and (iv): i.e. failure to appear and want of prosecution.
In Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [40], Acting Chief Justice Allsop pointed out that the power to dismiss/strike out proceedings for default is not intended to be used to punish a litigant. Instead a court is required to act in accordance with the dictates of justice. These remarks were made in the context of the exercise of a dismissal power, in subs 61(3) of the Civil Procedure Act 2005 (CP Act), where a party to court proceedings has been in default. S 58 of the CP Act sets out what is meant by the dictates of justice. To the extent relevant, that section provides:
58 Court to follow dictates of justice
(1) ...(2) For the purpose of determining what are the dictates of justice in a particular case, the court:
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant:
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.S56 of the CP Act sets out the overriding purpose of that Act and the Rule made pursuant thereto. Subs 56(1) of that Act, provides that the overriding purpose is to 'facilitate the just, quick and cheap resolution of the real issues in the proceedings.' As noted above, para 73 (5)(a) of the ADT Act requires the Tribunal to act as quickly as is practicable and subs 73(3) requires the Tribunal to act with as little formality as the circumstances of the case permit.
S57 of the CP Act sets out the objects of case management of proceedings before a court. It provides:
57 Objects of case management
(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:
(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).
Although the Tribunal is not a 'court' under the CP Act, in our view, the requirement of the above dictates of justice in the CP Act are a useful guide to the exercise of the Tribunal's dismissal power in para 73(5)(g)(iii) and (iv) of the ADT Act. That guide, must of course be applied in the context of the express requirements of 73 of the ADT Act.
Failure to appear - There can be no question that the appellant failed to appear at the hearing of his appeal. On the material before us, the appellant was at all times fully aware of the hearing date. Even though the appellant wrote to the Registry seeking an adjournment, he knew that the respondents opposed the application and would be making a dismissal application at the commencement of the hearing. He also knew that no orders for an adjournment had been made and that he was required to appear on the scheduled day. Yet the appellant failed to communicate any further with the Tribunal or the respondent. It was not until after the Registry had contacted him on the morning of the hearing that the appellant communicated with the Tribunal. That communication, in our view, was too late and also an unsatisfactory explanation as to why he failed to appear.
In his covering letter the appellant said he could not attend the hearing that day because he 'had been suffering from a virus flu and cold for few days' and he again sought an adjournment of the hearing of his appeal. The medical certificate, provided by the appellant in support of his contention, said as follows:
Medical Certificate
This is to certify that
[the appellant]
is receiving medical treatment and for the period
Monday, June 17, 2013 TO Wednesday, June 19, 2013 INCLUSIVE
in my opinion [the appellant] will be unfit to continue
His usual occupation/school for the above period inclusive.
Common Cold
This Certificate was completed on 17th June 2013.In our opinion, the applicant's explanation of his absence to appear and the medical certificate, do not provide a valid rationale or explanation for his absence at the hearing of his appeal, on 17 June 2013: see Magjarraj v Asteron Life Pty Ltd [2009] NSWSC 1433 at [22] and [23] and Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94 at [4].
The medical certificate is very 'cryptic' and fails to explain the state of the appellant's health as he presented that morning and the extent, if any, to which the doctor formed an opinion about the appellant's lack of fitness to attend the hearing that morning. Indeed no reference is made to the appellant's ability to appear before the Tribunal that day. We can only assume that the appellant did not mention this to the doctor who signed the certificate. Alternatively, if he did mention it, the doctor was not of the opinion that the appellant was unfit to appear before the Tribunal that day.
What is of concern is the appellant's failure to communicate, prior to 10am that morning, of his inability to attend. This he did not do until several hours after the Registry had contacted him at 10.25 am that morning.
As the date of the appellant's appeal was set at a time that was convenient to both parties and the appellant has failed to provide a proper basis for his failure to appear, in our view, it is appropriate to make the order sought (i.e. dismiss the appeal for non appearance). We note that in making this order, the appellant still has a right to seek the reinstatement of his appeal, if he can provide a reasonable explanation (other than the one provided to date) of his failure to appear.
Want of prosecution - The respondents' application for a dismissal on the grounds of want of prosecution is based on the appellant's failure to comply with the orders made on 5 April 2013 and his failure to appear at the hearing.
We are not persuaded that these defaults, in the circumstances of this appeal, are such to warrant a dismissal on the grounds of want of prosecution. A dismissal under this ground we note would finally dispose of this appeal.
As we have explained above, the appellant's failure to file and serve an Amended Notice of Appeal did not mean that his appeal could not have proceeded to a hearing on 17 June 2013. It would have proceeded on the basis of the appellant's Notice of Appeal, as file in December 2012. In this regard, we note, at no time did Mr Carson make a submissions that the appellant's appeal as set out in this Notice of Appeal should be dismissed on the grounds of being misconceived or lacking substance. Nor have we considered or examined this issue.
In regard to the appellant's failure to appear, in our view this is more appropriately dealt with under the dismissal power in para 73(5)(g)(iii) of the ADT Act.
Accordingly, we make no order under para 73(5)(g)(iv) of the ADT Act.
Costs
As we have mentioned, the respondents also seek an order that the appellant pay their costs of this appeal.
S 77A of the RL Act gives the Tribunal power to award costs, under section 88 of the ADT Act, in respect of an application (i.e. retail tenancy claim) made under the RL Act. This appeal clearly relates to an application of this nature.
Under subs 88(1) of the ADT Act, the general rule is that each party pay its own costs.
Subs 88(1A) provides that the Tribunal may award costs, 'but only if it is satisfied that it is fair to do so' having regard to the matters prescribed in para (a) to (e) of that subsection, which relevantly provide:
88 Costs
...(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment, or
(v) attempting to deceive another party or the Tribunal, or
(vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant.(1) The Tribunal may:
...On the basis of the appellant's failure to comply with the orders made on 5 April 2013 and his failure to appear on 17 June 2013, we are satisfied that it is fair to make an order that the appellant pay the respondent's costs. The respondents sought their costs of the appeal, which Mr Carson indicated to be $4,000. In light of the cost order made by the Appeal Panel on 5 April 2013, in our view, the appropriate order is an order for the respondent costs in appearing on 17 June 2013. Those costs we determine to be an amount of $1,000.
Orders
For the reasons set out above, we make the following orders:
1. The appellants' application for an extension of time within which to file and serve an Amended Notice of Appeal is refused.
2. The appellant's appeal is dismissed pursuant to paragraph 73(5)(g)(iii) of the ADT Act.
3. The appellant to pay the respondents' costs in the amount of $1,000.00.
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