Shayer v Bryron Bay Retirement Villages Pty Ltd

[2016] NSWCATCD 13

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Shayer v Bryron Bay Retirement Villages Pty Ltd [2016] NSWCATCD 13
Hearing dates:	14 July 2015 (27 July 2015 – last date for submissions)
Decision date:	11 February 2016
Jurisdiction:	Consumer and Commercial Division
Before:	K Rosser, Senior Member
Decision:	1. Byron Bay Retirement Villages Pty Ltd’s application for an order pursuant to 10(2)(a) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 is granted.  2. Proceedings COM14/00472 is dismissed.
Catchwords:	Retail leases; Strike out application; whether application frivolous or vexatious; whether conduct of proceedings has caused unreasonable disadvantage; exercise of discretion
Legislation Cited:	Civil and Administrative Tribunal Act 2013
Category:	Principal judgment
Parties:	Philip Shayer – Applicant in substantive application/ Respondent in strike out application Byron Bay Retirement Village Pty Ltd - Respondent in substantive application / Applicant in strike out application
Representation:	Mr Shayer - Self-represented Byron Bay Retirement Villages Pty Ltd - Lynch Andrews Lawyers
File Number(s):	COM 15/39968 and COM 14/00472
Publication restriction:	Nil

Reasons for decision

Introduction

1. Mr Shayer and Byron Bay Retirement Villages Pty Ltd (BBRV) have been involved in litigation which commenced in Mr Shayer’s applications for an urgent interim order and for an original decision under the Retail Leases Act 1994 which were filed in the former Administrative Decisions Tribunal (ADT) on 5 June 2013. At that time, Mr Shayer claimed that BBRV had turned off the power to Beaches Coffee Shack, a business he operated within the Beaches of Byron Caravan Park, which is operated by BBRV. Mr Shayer claims that the nature of the agreement between the parties in respect of the operation of the business constitutes a retail lease governed by the Retail Leases Act 1999, although this is denied by BBRV.

2. The application for an original decision was not finalised by 1 January 2014, when the ADT was abolished and the Civil and Administrative Tribunal (NCAT) came into existence. At that time, the Retail Division of the ADT became the Retail Leases List in the Consumer and Commercial Division of NCAT. The application was allocated file number COM 14/00472 and has since been dealt with under the transitional provisions set out in Schedule 1 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act).

3. On 24 June 2015 BBRV lodged application COM 15/39968. In that application, BBRV seeks an order striking out Mr Shayer’s application for an original decision, COM 14/00472. This application was heard in Tweed Heads on 14 July 2015. Following that hearing, the parties were given an opportunity to make submissions on:

1. The strike out application and

2. Whether a guardian ad litem should be appointed for Mr Shayer.

4. For the reasons set out below, I have determined to grant the strike out application and dismiss COM 14/00472.

5. My reasons for this decision follow.

Procedural history

6. The litigation between the parties has a long and involved procedural history. I have summarised that history below.

The Administrative Decisions Tribunal

7. Mr Shayer’s applications for interim orders and an original decision first came before the ADT on 13 June 2013. On that day, the Tribunal adjourned the matters for further hearing on the application for interim orders and otherwise for directions. It also ordered BBRV to restore the electricity supply to the rented premises and Mr Shayer to obtain, file and serve a report concerning the structural adequacy of a canopy he had erected at the premises prior to the next hearing.

8. The applications came back before the Tribunal for further directions on three occasions before the end of 2013:

1. Following unsuccessful mediation, on 12 September 2013, Mr Shayer was directed to file and serve an amended application and all material on which he intended to rely at the hearing by 3 October 2013. BBRV was directed to file and serve all its material by 24 October 2013. On that application, the presiding member told the parties that the timetable was to be adhered to and that no extensions of time would be granted without good cause.

2. Notwithstanding that advice to the parties, on 31 October 2013, Mr Shayer was directed to file and serve all of his evidence, including expert evidence, by 22 November 2013. BBRV was directed to file and serve all evidence by 13 December 2013.

3. On 19 December 2013, BBRV was directed to file and serve all material by 31 January 2014, including a response to the application made by the applicant to join other parties to the proceedings.

NCAT

9. On 1 January 2014, the ADT ceased to exist and NCAT came into existence. Pursuant to transitional provisions of the NCAT Act, the application became an application in the Consumer and Commercial Division of NCAT.

Directions hearings during 2014

10. The application for original orders now being the only active application, it was first listed for directions in the Consumer and Commercial Division on 18 February 2014. At that time, BBRV indicated that it proposed to file an application to strike out the proceedings pursuant to s 55(1)(b) of the NCAT Act.

11. BBRV filed a strike out application dated 31 March 2014 and the application was heard on 1 April 2014. On 26 August 2014, the Tribunal dismissed the strike out application.

12. The matter next came before the Tribunal for directions on 30 September 2014. On that date the Tribunal directed Mr Shayer to advise BBRV and the Tribunal of any documents Mr Shayer claimed were outstanding as a result of a previous summons to produce. This was to be done by 13 October 2014. BBRV was directed to produce the documents or a response as to their availability by 27 October 2014. Mr Shayer was again directed to file and serve all documents on which he intended to rely at the hearing, this time by 11 November 2014. BBRV was directed to file and serve all its documents by 25 November 2014.

13. In a letter dated 18 November 2014, BBRV’s solicitor wrote to the Tribunal concerning Mr Shayer’s alleged non-compliance with the orders made on 30 September 2014 and Mr Shayer’s failure to give BBRV financial records and other data relevant to his claim for damages.

14. The matter was next listed for directions on 25 November 2014. On that date the Tribunal directed the parties to make submissions as to whether the hearing should be split in order to deal with the issues of liability and quantum separately.

Directions hearings January to June 2015

15. The matter came back for further directions on 20 January 2015 and then on 3 February 2015. On that date, the Tribunal determined that the hearing would not be split and that the application would be listed for hearing. Relevantly, Mr Shayer was ordered to provide to BBRV “copies of tax returns, BAS and all other relevant documentary material by 27 February 2015” (“order 5”) Mr Shayer was also ordered to advise when a report from a forensic accountant would be available at the next directions hearing.

16. On 5 March 2015, BBRV’s solicitor sent an email to the applicant, copied to the Tribunal’s Registry, complaining, amongst other things, that the applicant had failed to comply with order 5. Other correspondence between the parties around the same date was also copied to the Registry.

17. On 6 March 2015, a further directions hearing was listed. At that directions hearing, the Tribunal relevantly made the following directions:

…

2. The parties are to file a joint statement of issues on or before 20 March 2015.

3. On or before 31/3/15, the applicant is to file any expert reports in relation to his claims. The experts are to comply with Practice Direction 3, Expert Witnesses.

4. On or before 31/3/15 parties are to file an agreed bundle of documents containing the agreed statement of issues, all statements, expert reports (other than expert reports filed pursuant to order 3, and any reply) and other documents to be relied upon. The agreed bundle is to be paginated, indexed and placed in logical order.

5. The application is stood over for further directions after 31/3/15.

6. On the next occasion, the Tribunal will make directions for any expert evidence in reply, submissions and other directions to fix the matter for final hearing.

7. The applicant is encouraged to obtain legal advice about the issues raised.

18. The matter was back before the Tribunal on 9 April 2015. On that date, the Tribunal relevantly made the following orders:

….

2. The Tribunal varies the directions made on 6 March 2015 as follows:

(a) The time with compliance with order 3 (the expert’s report) is extended to 30 April 2015;

(b) The time for compliance with order 4 (the agreed bundle) is extended to 30 April 2015.

4. In the event the applicant fails to comply with order 3 made 6 March 2015 as varied above, the applicant may not rely on such evidence without leave of the Tribunal, which leave will only be granted in exceptional circumstances.

5. The Tribunal notes that if either party fails to comply with directions the Tribunal may make orders including striking out the proceedings or dismissing any defence on the next occasion.

6. The Tribunal will make directions on the next occasion for the filing of any expert reports in reply and fix the matter for final hearing.

7. The parties are required to attend the next directions hearing in Sydney in person.

19. Mr Shayer did not comply with the orders made on 9 April 2015. On 13 May 2015, the Tribunal made further orders:

1.   By Determination of member, on 13 May 2015 the hearing was adjourned to a date to be fixed by the Registrar.

2.   The Tribunal gives leave to Mr Alan Flint (former solicitor) to appear as a McKenzie friend for the purpose of this directions hearing only.

3.   The Tribunal notes that the applicant acknowledges that he has failed to comply with the Tribunal's orders for the filing of an agreed bundle of documents as required by order 4 made 6 March 2015 as extended by order 2(b) made 9/4/15.

4. The Tribunal gives leave to the Applicant to file and serve a supplementary bundle (Applicant's Additional Bundle) which is to contain the following documents only:

a) Affidavit of Kerry Spencer sworn 29 Jan 2013;

b) Document entitled Petition dated 21 January 2014;

c) Applicant's coloured Photographs of the Premises being copies of the photographs found in the Agreed Bundle pages 54-56, 428-448

d) Affidavit of Philip Shayer dated 12 February 2014;

e) Document being an agreement between Wylie Thompson partnered with Phil Shayer T/A Wylies and Byron Bay Retirement Villages T/a Beaches of Byron, signed but undated.

5.   The documents required by order 4 are to be placed in a folder, indexed and paginated and placed in a logical order. The folder must be marked "Applicant's Additional Bundle"

6.   The Tribunal notes that the applicant has filed an expert's report pursuant to order 3 made 6 March 2015 as extended by order 2(a) made 9 April 2015, being a report from Worrells, accountants,- Ms Anita Owens dated 29 April 2015 (Expert's Report).

7.   On or before 20/5/15 the Tribunal directs that the applicant produce to the respondent the following documents identified in the Expert's Report:

a) documents referred to in paragraphs 6.1, 6.2 and 6.3 and Annexure 2 of the Expert's Report including:

i) the financial statements;

ii) receipts for cash expenditure; and

iii) the samples and spreadsheets prepared by the applicant referred to in paragraph 6.3.

b) tax returns for the years ending 30 June 2013 and 2014.

8 The documents required by order 7 are to be placed in a folder, indexed and paginated and placed in a logical order. The folder must be marked "Financial Records of Applicant Bundle".

9 If either party wishes to rely on the Financial Records of Applicant Bundle, the bundle must be filed with the Tribunal on or before 27 May 2015.

10. The Tribunal notes the respondent has requested access to the business activity Statements (BAS Statements) for the applicant and that the applicant has advised there are no BAS Statements and that he is not registered for GST. The Applicant has also stated that there was no bank account maintained for the business and that the business was a cash business and all cash was held on the premises.

11. On or before 12 June 2015 the respondent is to file and serve any expert evidence in reply. In this regard the expert is to comply with Procedural Direction 3- Expert Witnesses.

12. On or before 25 June 2015, the experts for the parties are to meet, prepare and file a statement setting out the differences, if any, between them as to what loss the applicant may have suffered and the reasons for those differences so as to provide to the Tribunal a list of the issues to be resolved.

13. The documents required by orders 11 and 12 and the Expert's Report are to be placed in a folder marked "Expert Financial Evidence Bundle, which folder must be indexed and paginated and placed in a logical order.

14. Documents not in the Agreed Bundle (being the bundle consisting of 2 folders filed by the respondent (which the Tribunal has initialled and dated 13/5/15), Expert Financial Evidence Bundle, the Financial Records of Applicant Bundle (if filed) and Applicant's Additional Bundle (if filed) may not be relied upon without leave of the Tribunal, which leave will only be granted in exceptional circumstances.

15 On or before 22 May 2015 the respondent is to prepare, serve and file an index to the Agreed Bundle.

16. On or before 1 July 2015 the parties are to file and exchange an outline of submissions on all issues in dispute.

17. The application is listed for directions on 26 June 2015

18. The application is fixed for final hearing in Sydney on 6 July 2015, to continue on 7 July 2015 if necessary.

19. Liberty to apply on 2 days notice.

20. The matter was subsequently listed for directions on 26 June and for final hearing on 6 and 7 July 2015.

Adjournment application

21. In an email received on 23 June 2015, Mr Shayer stated that because of his medical condition he had been “unable to attend to the completion of the said orders of the Tribunal or to instruct others to do so on [his] behalf” and that he would “require a course of treatment” before he would be able to comply with the Tribunal’s orders. Mr Shayer sought an adjournment of the directions and final hearings. In support of the adjournment application, Mr Shayer provided a medical certificate from Dr Neil Hannah dated 23 June 2015.

22. On 24 June 2015, the Tribunal refused the adjournment application in chambers and set out its decision, reasons for decision and orders as follows:

The request by the Respondent for an adjournment of the hearing listed at Room 1 Floor 13, 175 Castlereagh Street Sydney NSW 2000 on Friday 26th June 2015 2:15 PM has been refused.

Reasons:

Mr Shayer seeks an adjournment of a directions hearing listed on 26 June 2015 and of a hearing listed on 6 and 7 July 2015. In support of that application, he has provided a medical certificate from Dr Neil Hannah dated 23 June 2015. The medical certificate relevantly states that Mr Shayer "has a medical condition and will be unfit to attend court from 23 June 2015 to 22 July 2015 inclusive".

In an email dated 23 June 2015, Mr Shayer claims that he has been unable to comply with orders made by the Tribunal because of his medical condition. He also claims that because of his medical condition he has been unable to instruct others to comply with the orders.

In relation to the medical certificate provided in support of the adjournment application, I am not satisfied that it is satisfactory or adequate. While it states that Mr Shayer "will be unfit to attend court", it does not provide any details of his medical condition. In Lameh Mourad v Omar Aly [2015] NSWCATAP 49, the Appeal Panel relevantly stated:

21. ... As has been previously found by this Tribunal ... medical reports must be specific, and clearly state that the person is unable to attend a hearing, and must indicate the precise nature of the illness which prevents attendance: see AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [4]-[5]; Magjarraj v Asteron Life Limited [2009] NSWSC 1433 at [6], [20], [22], [23].

Mr Shayer should attend the directions hearing on 26 June 2015. If he wishes to make a further application for an adjournment either prior to or at the hearing, it should be supported by a medical report that indicates the nature of his medical condition and explains why that medical condition prevents his attendance at and/or participation in the hearing. Mr Shayer's medical practitioner should be given a copy of this decision and the attached reasons and should be available to attend the directions hearing by telephone to be questioned on his report.

Further, if Mr Shayer claims, as stated in his email to the Tribunal, that his medical condition has prevented him from complying with Tribunal orders or giving instructions, expert evidence must be provided that deals specifically with that issue.

Accordingly, the application for an adjournment is refused and the following directions are made:

1. In the event that the applicant proposes to seeks an adjournment of the directions hearing on 26 June 2015 and/or the hearing on 6 and 7 July 2015, he is to provide the following to the Tribunal by close of business on 25 June 2015:

(a)   A medical report that acknowledges receipt of these directions and which provides details of his medical condition and the reasons why such condition prevents his attendance at and/or participation in Tribunal hearings .

2. If the applicant maintains that his medical condition prevents him from complying with Tribunal directions and/or giving instructions to a representative, he is to provide medical and/or psychological evidence from an appropriately qualified expert in respect of his capacity to conduct the current proceedings, by close of business on 25 June 2015. Any such report is to acknowledge receipt of these directions.

3. The applicant is to ensure that any practitioner who provides a report in support of an adjournment application and/or in respect of the applicant's capacity are available to give evidence by telephone on 26 June 2015 in relation to any report provided.

The matter remains listed on the above dates.

23. Mr Shayer subsequently filed reports from Ms Mary Guest, a psychologist and Dr Neil Hannah, a general practitioner.

24. In her report dated 24 June 2015, Ms Guest stated that she had observed Mr Shayer to be “somewhat in a state of crisis”. She further stated that he had attained high scores on the DASS (Depression Anxiety Stress Scale) reaching extremely severe depression, extremely severe anxiety and severe stress.

25. In his report dated 25 June 2015, Dr Hannah stated that Mr Shayer has a medical condition diagnosed in 2011, which is treated with medication. He stated that this illness affects Mr Shayer’s coping and organisational skills and has given him high levels of anxiety. Dr Hannah expressed an opinion that Mr Shayer was currently unfit to attend court, to prepare material for court or to instruct that it be prepared.

Strike out application (COM 15/39968)

26. In the meantime, BBRV filed an application seeking to have Mr Shayer’s application dismissed pursuant to s 55(1) of the NCAT Act. That matter had also been listed for directions on 26 June 2015.

27. In summary, the basis for the application is that:

• Mr Shayer had not complied with orders made by the Tribunal on 13 May 2015;

• Mr Shayer had previously failed to comply with Tribunal orders;

• Mr Shayer’s claim is baseless or highly unlikely to succeed on any level;

• The evidence of Mr and Mrs Waghorne (witnesses for BBRV who provided affidavits in the proceedings) includes references to Mr Shayer’s true motivation in the proceedings; that is, to cause difficulties for BBRV and its director Mr Spencer;

• The lack of substantive evidence of any appropriate financial trading by Mr Shayer, other than unreliable material;

• The inappropriate reference by Mr Shayer in documentation and submissions to the mediation process and an offer made to him on a “without prejudice” basis;

• Serious prejudice to BBRV and Mr Spencer in that Mr Shayer’s behaviour has caused them to expend significant legal costs and significant further legal costs would be incurred if the proceedings were heard in Sydney.

Directions hearing – 26 June 2015

28. At the commencement of the directions hearing on 26 June 2015, the Tribunal contacted Mr Shayer by phone. He took the call but stated that he did not wish to participate in the directions hearing, indicating that this was because of his psychological condition. The Tribunal raised the issue of Mr Shayer’s capacity to conduct the proceedings and queried whether a guardian ad litem should be appointed. Mr Shayer advised that he was undergoing treatment and should be fit to proceed with the matter in approximately a month. After terminating the conversation with Mr Shayer, the Tribunal contacted BBRV’s solicitor and reserved its decision on the adjournment application.

29. On 1 July 2015, the Tribunal adjourned the hearing on 6 and 7 July 2015 and made the following orders:

These proceedings were commenced in December 2013. They have had a long history of directions hearings and the matter was fixed for final hearing on 6 and 7 July 2015. The respondent has applied to strike out the applicant's claim on the basis the applicant has repeatedly failed to comply with directions. Relevant considerations will include the application of s 55 (Dismissal) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act) and Clause 10 of Schedule 4 (Proceedings causing disadvantage) of the Act. However, the applicant sought an adjournment of the proceedings on the basis of medical incapacity. This application was supported by reports prepared by Dr Neil Hannah and Ms Mary Guest.

The Tribunal has determined to vacate the date for final hearing in Sydney and to fix the matter for hearing of the dismissal application on 14 July 2015 in Tweed Heads. In addition, having regard to the medical evidence provided by the applicant, at that the hearing the Tribunal will also consider whether a guardian ad litem should be appointed under s 45 (4)(a) of the NCAT Act. In relation to such an appointment, the Tribunal notes that the applicant has provided medical evidence to the effect that he has been suffering the present condition since at least 2011 (before the application was lodged). The reports provided suggest that the applicant's prognosis is uncertain.

To facilitate a hearing in respect of these issues, the Tribunal makes the following directions:

The final hearing fixed for 6 and 7 July 2015 in Sydney is vacated.

2. The proceedings are listed for hearing at Tweed Heads on 14 July 2015 at 9.15am to determine the following questions:

a. Whether the proceedings should be dismissed;

b. If not dismissed:

i. whether a guardian ad litem should be appointed for the applicant and

ii. what directions should be made to facilitate a final hearing to occur not

later than 29 August 2015.

The Tribunal directs that each of the parties file and serve a position statement not longer than two pages in relation to what orders should be made and why those orders should be made, such statements to be filed on or before Friday 3 July 2015.

On or before 3 July 2015, the respondent is to file and serve any further evidence in support of its strike out application.

On or before 9 July 2015, the applicant is to file and serve any evidence in reply to all of the issues to be dealt with on 14 July 2015.

6. The evidence from the applicant must include reports from his treating doctor and treating psychologist as to his present condition, his prognosis and whether or not the applicant is presently capable of adequately conducting or giving adequate instruction for the conduct of the proceedings.

Any witnesses who have provided statements or reports in relation to the application must be available in person or by telephone for the purpose of any cross-examination.

On or before 3 July 2015 the applicant is to notify the respondent and the Tribunal of the name of any person whom he proposes to have represent him at the hearing on 14 July 2015.

On or before 6 July 2015 the respondent is directed:

a. To advise the applicant and the Tribunal of the name of his expert who is to give evidence in reply to the report of Ms Anita Owens dated 29 April 2015;

b. Arrange for the respondent's expert to meet with Ms Owens and prepare a joint statement setting out:

i. the matters of agreement;

ii. the real issues in dispute; and

iii. the work necessary for the experts to prepare a single joint report as to the

applicant's claim for damages.

In this regard the experts are to comply with Procedural Direction 3- Expert Witnesses and section 36(3) of the NCAT Act.

Hearing on 14 July 2015

30. Mr Shayer was not present at the hearing venue in Tweed Heads at the commencement of the hearing on 14 July 2015. He was contacted by telephone at the beginning of the hearing. Mr Shayer claimed that he had made an application to adjourn the hearing and that this application had been forwarded in a medical report to the Tribunal. Mr Shayer was told that no such application had been received prior to the hearing. His adjournment application was refused as there was no medical evidence before the Tribunal that justified an adjournment being granted. Mr Shayer was given an opportunity to attend the hearing, which he declined.

31. In these circumstances, the Tribunal stated that it would deal with the respondent's application to dismiss the proceedings on the basis of the written material provided by BBRV, BBRV’s solicitor's oral submissions, the oral submissions made by Mr Shayer at the beginning of the hearing and the written material provided by Mr Shayer, including the medical report referred to by Mr Shayer, if such report were provided.

32. During the hearing, an email was received from Mr Shayer that included an undated report, not on letterhead, said to be from his treating doctor Dr Hannah. The letter stated, amongst other things that:

• Mr Shayer continues to suffer from extremely severe stress and depression.

• He remains under active treatment and medical supervision.

• He is not presently capable of giving adequate instruction for the conduct of proceedings because of his medical condition.

• Were significant reductions in his stress achieved, he could ultimately recover and would be likely to manage conduct of his own proceedings, with assistance.

33. The Tribunal contacted Dr Hannah by telephone to confirm that he had provided the report. Dr Hannah told the Tribunal (amongst other things) that:

1. He had received a draft form of report from "the applicant's lawyer" Mr Flint;

2. He had added to that report comments about the desirability of obtaining a report from the applicant's treating psychiatrist, but otherwise agreed with the opinion expressed in it;

3. He had only seen the applicant on three occasions and was not in a position to give an opinion about his psychiatric condition;

4. He had sent the report back to Mr Flint and

5. He had not agreed to provide it to the Tribunal.

34. The Tribunal reserved its decision in respect of the strike out application and made directions in respect of the provision of submissions. The directions relevantly stated:

….

Dr Hannah's report and the questioning of Dr Hannah by the Tribunal and the respondent's solicitor raise issues of relevance to both the respondent's application to strike out the proceedings and to whether a guardian ad litem should be appointed if the proceedings are not struck out.

The Tribunal accordingly makes the following directions:

1.   The respondent is to file and serve any further submissions going to

(a) whether the applicant should be dismissed either under s 55(1)(d) or clause 10(1) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 and

(b) if the application is not dismissed, whether a guardian ad litem should be appointed for the applicant.

Such submissions are to be filed by close of business on 17 July 2015.

2.   The applicant shall file and serve any further submissions in response by close of business on 21 July 2015.

3.   The applicant shall forthwith provide to the respondent's solicitor and to the Tribunal a copy of the email and any attachments sent by Mr Flint to Dr Neil Hannah requesting the provision of a report.

4.   Any submissions not received in accordance with the above directions, will not be considered in determining the strike-out application, without leave of the Tribunal.

…

35. An extension of time to comply with the order 2 was granted on the applicant’s request.

Issues

36. The issues to be determined are:

1. Did Mr Shayer have a reasonable excuse not to attend the hearing on 14 July 2015?

2. Should Mr Shayer’s application be dismissed under s 55(1) of the NCAT Act?

3. Should Mr Shayer’s application be dismissed under cl 10 of Schedule 4 of the NCAT Act?

4. If not, should a guardian ad litem be appointed for Mr Shayer?

5. If the application is not dismissed what orders should otherwise be made?

Evidence and submissions

37. In determining the strike out application and considering whether a guardian ad litem should be appointed, I have considered:

1. The procedural history of Mr Shayer’s application, as set out in the Tribunal’s file;

2. The material attached to BBRV’s strike out application;

3. The submissions and other material (including Dr Hannah’s and Ms Guest’s reports) filed in accordance with directions made on 24 and 26 June 2015;

4. The oral submissions made by BBRV’s solicitor Mr Andrews at the hearing on 14 July 2015;

5. The oral evidence of Dr Neil Hannah at the hearing on 14 July 2015;

6. The oral submissions made by Mr Shayer at the beginning of the hearing on 14 July 2015 and

7. The written submissions filed by both parties in accordance with the directions made on 14 July 2015.

Consideration

Did Mr Shayer have a reasonable excuse for not attending the hearing on 14 July 2015?

38. I find that Mr Shayer did not have a reasonable excuse for failing to attend the hearing on 14 July 2015.

39. First, Mr Shayer claimed that his doctor had given a medical report to the Tribunal and had asked for an adjournment. However, as noted above, no prior application for an adjournment had been made. Furthermore, after the undated report was sent to the Tribunal during the hearing, the Tribunal contacted Dr Hannah, who advised that he had not sent the report to the Tribunal and had not undertaken to do so.

40. Second, under cross-examination by the respondent’s solicitor, Dr Hannah indicated that he was not in a position to give an opinion about Mr Shayer’s mental state.

41. Overall, given Dr Hannah’s evidence during the hearing, I am not satisfied that his report justified the granting of an adjournment of the hearing. It follows that I am not satisfied that Mr Shayer had a reasonable excuse not to attend the hearing on 14 July 2015.

Should Mr Shayer’s application be dismissed pursuant to s 55(1) of the NCAT Act?

42. Section 55(1) of the NCAT Act provides:

55 Dismissal of proceedings

(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:

(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

(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.

43. Sections 55(1)(a) and 55(1)(c) are not relevant to the strike out application. I have accordingly considered whether Mr Shayer’s application should be dismissed because it is “frivolous or vexatious or otherwise misconceived or lacking in substance” or because there has been “a want of prosecution of the proceedings”.

44. In the strike out application, BBRV submits that “Mr Shayer’s claim is baseless or highly unlikely to succeed on any level”. This is in effect a submission that the application is lacking in substance. The problem with this submission is that BBRV’s earlier strike out application, brought on the basis that Mr Shayer’s claim was “misconceived or lacking in substance”, was dismissed by the Tribunal in August 2014. In his reasons for decision, Senior Member Bluth stated:

[T]he Tribunal believes that the Grounds [in the Original Application] are not lacking in substance and ultimately should be tried to ascertain whether or not the claims can be maintained and what damages flow. The Original Application is neither misconceived nor lacking in substance.

45. BBRV did not appeal that decision. It appears that Mr Shayer’s substantive claim remains as it was at the time the earlier strike out application was determined. This is not to say that Mr Shayer’s claim has merit. However, I am not satisfied that BBRV has established a basis for the application to be dismissed on the basis that it is misconceived or lacking in substance.

46. I am also not satisfied that Mr Shayer’s application should be dismissed for want of prosecution under s 55(1)(d). Although Mr Shayer has not complied with Tribunal directions, he has filed a significant amount of material in connection with his application.

47. BBRV also argues that the application is vexatious, or at least I conclude that this is what BBRV means when it refers to Mr and Mrs Waghorne’s evidence that Mr Shayer’s motivation in bringing the application was to cause difficulties for BBRV and its director Mr Spencer.

48. In relation to this claim, BBRV relies on affidavits of Rita Tamara Waghorne and Arthur Allan Waghorne, both dated 30 March 2015, which were filed in connection with the strike out application. In their respective affidavits, Mr and Mrs Waghorne recount a conversation with Mr Shayer, said to have occurred earlier in 2015, in which Mr Shayer is alleged to have said that he had engaged new lawyers and that he would prolong the dispute with Mr Spencer. According to Mr and Mrs Waghorne, Mr Shayer “indicated that his intention in prolonging the dispute was to cause cost and expense to Mr Spencer and to in effect make life difficult for Mr Spencer”.

49. Mr and Mrs Waghorne were present at the hearing on 14 July 2015. Had Mr Shayer attended the hearing, he would have had the opportunity to cross-examine them. Instead, in his written submission in response to the strike out application, Mr Shayer has denied Mr and Mrs Waghorne’s version of events and accused both Mr Spencer and BBRV’s solicitor Mr Andrews of involvement in concocting their evidence. He also claims, amongst other things, that Mr and Mrs Waghorne have not given truthful evidence because they are older residents of the caravan park operated by BBRV and would be concerned about their tenure.

50. As noted above, Mr Shayer’s failed to attend the hearing on 14 July 2015 and I am not satisfied that he had a sufficient reason not to attend the hearing on that date. Had he attended the hearing, he could have put his explanation of Mr and Mrs Waghorne’s evidence to them in cross-examination. In light of Mr Shayer’s failure to do so, I place no weight on the various assertions he has made in his submission about their evidence. I accept that Mr Shayer had the conversation with Mr and Mrs Waghorne that they have recounted in their affidavits. I am satisfied that Mr Shayer wishes to cause cost and expense to BBRV and Mr Spencer and that this has (at least in part) motivated the current proceedings.

51. However, the fact that Mr Shayer may be motivated by a desire to cause inconvenience to BBRV and to Mr Spencer is not, in my view, a sufficient reason to find that the proceedings are vexatious, particularly given that the Tribunal has already found that the proceedings are neither misconceived nor lacking in substance. It is possible for a litigant’s case to be meritorious, even if his or her motivation in commencing proceedings is to cause inconvenience of other problems for the other party. However, Mr Shayer’s motivation is relevant to the exercise of the discretion to make an order under cl 10 of Schedule 4. That issue is considered below.

52. Overall, I am not satisfied that the application should be dismissed pursuant to s 55(1) of the Act.

Should Mr Shayer’s application be dismissed under cl 10 of Schedule 4 of the NCAT Act?

53. Clause 10 Schedule 4 of the Act provides:

10 Proceedings causing disadvantage

(1) The Tribunal may exercise the powers conferred by this clause if the Tribunal is of the opinion that a party in any proceedings for the exercise of a Division function is conducting the proceedings in such a way that unreasonably disadvantages another party in the proceedings by any conduct (including by failing to comply with an order or direction of the Tribunal).

(2) The Tribunal may:

(a) if the party causing the disadvantage is the applicant—order that the proceedings (or part of the proceedings) be dismissed or struck out, or

(b) if the party causing the disadvantage is not the applicant:

(i) determine the proceedings (or part of the proceedings) in favour of the applicant and make any appropriate orders, or

(ii) order that the party causing the disadvantage be struck out of the proceedings (or part of the proceedings).

(3) Before making any order under subclause (2) against a party, the Tribunal is to have regard to the following:

(a) the extent to which the party is familiar with the procedures of the Tribunal,

(b) the party’s capacity to understand, and act on, 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.

(4) The provisions of this clause are in addition to, and do not limit, the provisions of section 55 (Dismissal of proceedings) of this Act.

54. BBRV seeks an order dismissing Mr Shayer’s proceedings (COM14/00472). Such an order can be made under cl 10(2)(a) of Schedule 4. BBRV argues that the conduct that should give rise to such order is Mr Shayer’s failure to comply with directions. As set out above, there have been multiple instances in which Mr Shayer has not complied with directions made by the Tribunal.

55. There is no doubt that non-compliance with Tribunal directions has significantly prolonged the proceedings. However, BBRV’s applications for summary dismissal of the proceedings have also had that effect. I am not satisfied that Mr Shayer’s failure to comply with directions made by the Tribunal prior to early 2015 constitutes a basis for a finding that he has conducted the proceedings in a manner that unreasonably disadvantages the other party. This is because, had BBRV wished to rely on Mr Shayer’s earlier failure to comply with directions, it could have brought an application under cl 10 Schedule 4 at the time it brought its first strike out application in March 2014.

56. However, Mr Shayer’s non-compliance with earlier directions made by the Tribunal and by the ADT are relevant to the exercise of the discretion to dismiss his application under cl 10(2)(a) Schedule 4, if I am satisfied that Mr Shayer has conducted the proceedings in such a way that unreasonably disadvantages BBRV. That issue is considered below.

57. In my view, the conduct that could most relevantly be described as conduct which unreasonably disadvantages BBRV is Mr Shayer’s failure to comply with directions made by the Tribunal to provide to BBRV the material that was relied on by his expert when she prepared her report. The most recent directions in this regard were made on 13 May 2015 when, as set out above, the Tribunal relevantly made the following order:

7.   On or before 20/5/15 the Tribunal directs that the applicant produce to the respondent the following documents identified in the Expert's Report:

a) documents referred to in paragraphs 6.1, 6.2 and 6.3 and Annexure 2 of the Expert's Report including:

i) the financial statements;

ii) receipts for cash expenditure; and

iii) the samples and spreadsheets prepared by the applicant referred to in paragraph 6.3.

b) tax returns for the years ending 30 June 2013 and 2014.

58. Mr Shayer failed to comply with this direction (and therefore with other directions made on the same date which related to this direction). As a result, BBRV was unable to obtain its own expert evidence.

59. Mr Shayer has explained his failure to comply with the direction to provide these documents to BBRV by claiming that he could not afford the estimated cost of having his documents photocopied, which he has told the Tribunal was $1700. He has also stated that BBRV had been told that if it wanted the documents it could arrange for them to be copied.

60. However, the Tribunal’s most recent directions did not require Mr Shayer to serve photocopied documents. As noted above, on 13 May 2015, the Tribunal made by the following direction:

7.   On or before 20/5/15 the Tribunal directs that the applicant produce to the respondent the following documents identified in the Expert's Report:

….. (Emphasis added)

61. In these circumstances, what Mr Shayer should have done is to arrange for the relevant documents to be forwarded to BBRV’s solicitor or to their expert. Alternatively, he could have advised BBRV’s solicitor that the documents were available to their expert at his expert’s business premises. Instead, he caused his expert to return the documents to him.

62. Mr Shayer claims damages in the sum of $400,000 from BBRV and relies on expert evidence that he has obtained in respect of the quantum of the claim. In preparing her report, Mr Shayer’s expert relied on financial documents he provided to her. Given this, I am satisfied that Mr Shayer’s failure to comply with the Tribunal’s direction to provide financial documents to BBRV means that BBRV has not been able to have its own expert evidence prepared. I am satisfied that this has disadvantaged BBRV in the conduct of its case in defence of Mr Shayer’s claim.

63. “Unreasonable” is relevantly defined in the Shorter Oxford English Dictionary as “going beyond what is reasonable or equitable; excessive”. I am satisfied that conducting proceedings in a manner which prevents a party from obtaining expert evidence – and failing to comply with Tribunal orders in the process of doing so – means that the disadvantage caused to BBRV can be described as disadvantage that goes beyond what is reasonable or equitable. I find that Mr Shayer’s conduct of the proceedings has unreasonably disadvantaged BBRV.

64. I have considered whether Mr Shayer’s application should be dismissed because of the unreasonable disadvantage caused to BBRV. In doing so, I have had regard to the factors the Tribunal must consider when determining an application under cl 10 Schedule 4.

65. In relation to Mr Shayer’s familiarity with Tribunal procedures, while there is nothing before me to suggest that Mr Shayer has been involved in other proceedings before the Tribunal, these proceedings have been on foot for a considerable period of time. The Tribunal has made directions on multiple occasions and the obligation to comply with directions has been emphasised to him in that process. Furthermore, Mr Shayer has had the assistance of a McKenzie Friend – a retired solicitor, Mr Flint – in the latter stages of the proceedings. While Mr Flint was in practice in Victoria, I am satisfied that he would be aware of the importance of complying with Tribunal directions. This factor weighs in favour of the granting of BBRV’s application.

66. In relation to Mr Shayer’s capacity to understand and act on Tribunal directions, no evidence has been provided to suggest that he lacks such capacity. Mr Shayer has demonstrated himself capable of filing material in the Tribunal, of making submissions and of responding to correspondence. There is no basis to conclude that he failed to understand what was expected of him in relation to the provision of financial documents to BBRV. This factor also weighs in favour of the granting of the application.

67. In relation to whether Mr Shayer suffers from a disability, it is not in dispute that he has been under treatment for a psychiatric condition, the nature of which has not been disclosed to the Tribunal. Mr Shayer has not provided a report from his treating psychiatrist. Nor did he provide a detailed report from his treating psychologist as to his present condition and his prognosis, as he was directed to do on 1 July 2015. That said, in her report dated 24 June 2015, Ms Guest referred to Mr Shayer as being in a state of crisis and suffering from depression, anxiety and stress. In his report dated 25 June 2015, Dr Hannah stated that Mr Shayer’s medical condition affected his coping and organisational skills and had given him high levels of anxiety.

68. However, Dr Hannah retreated somewhat from his previously expressed opinion under cross-examination on 14 July 2015. His evidence on that occasion suggested that Mr Shayer may have been exaggerating the effect of his condition. Furthermore, it emerged that Mr Shayer had been on a short business trip to China around this period. While I accept that Mr Shayer’s travel was paid for by his business contacts in China, as he has claimed, the fact that Mr Shayer was able to go on a business trip at all is a strong indication that the effect of his psychiatric condition was not as debilitating as he claimed.

69. Overall, while it is not in dispute that Mr Shayer has a psychiatric condition and while I accept that his condition has had some adverse effect on his mental state, I am not satisfied that Mr Shayer’s condition adequately explains his failure to comply with Tribunal directions. Mr Shayer’s psychiatric condition does not weigh against the granting of BBRV’s application.

70. In relation to whether Mr Shayer deliberately failed to comply with Tribunal directions, it is difficult to conclude that he did not make a deliberate decision not to provide the documents to BBRV as he was ordered to do. Mr Shayer had ample opportunity to provide this material to BBRV. As noted above, he was ordered to provide all documents on which he relied at the hearing to BBRV on a number of occasions, including 12 September 2013, 31 October 2013, 30 September 2014, 3 February 2015, as well as on 13 May 2015. For a brief period in late 2014 / early 2015, the Tribunal gave consideration to dealing with liability before quantum. However, this came after Mr Shayer had failed to provide the evidence on which he was relying to support his claim as he had previously been directed to do. Mr Shayer’s deliberate choice not to provide documents to BBRV weighs strongly in favour of BBRV’s application.

71. I conclude that a consideration of the factors set out in cl 10(3) weigh in favour of granting BBRV’s application.

72. I have considered other factors relevant to the general exercise of the discretion. One of these factors is my finding concerning Mr and Mrs Waghorne’s evidence. While that evidence was not sufficient for the application to be dismissed on the basis that Mr Shayer’s application is vexatious, Mr Shayer’s expressed desire to cause cost and expense to BBRV’s director Mr Spencer is a factor that weighs in favour of dismissing the application under cl 10(2)(a) of Schedule 4.

73. The other factor that weighs in favour of dismissing Mr Shayer’s application is that, as set out above, he has had multiple opportunities to provide all of the evidence on which he relies to support his case and has consistently failed to do so. The failure to comply with the order made on 13 May 2015 is only the most recent of Mr Shayer’s failure to comply. While Mr Shayer has sought to blame BBRV for delays, central to the substantive proceedings is his claim for payment of $400,000. In not providing the material he was ordered to provide, he has prevented BBRV from obtaining evidence to respond to the quantum of damages sought.

74. I am not satisfied that any significant factors, including the material set out in Mr Shayer’s submissions, outweigh the strength of the factors in support of making the order sought by BBRV.

75. Overall, I am satisfied that Mr Shayer has conducted proceedings in a manner that has unreasonably disadvantaged BBRV. I am satisfied that the proper exercise of the discretion in cl 10 of Schedule 4 is to dismiss his application, COM14/00472.

Conclusion

76. As I am satisfied that BBRV’s application for an order under cl 10 of Schedule 4 should be granted, I have dismissed Mr Shayer’s application Com 14/00472. I have therefore not considered whether a guardian ad litem should be appointed for Mr Shayer.

Orders

1. Byron Bay Retirement Villages Pty Ltd’s application for an order pursuant to 10(2)(a) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 is granted.

2. Proceedings COM 14/00472 are dismissed.

K Rosser

Senior Member

Civil and Administrative Tribunal of New South Wales

11 February 2016

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

Decision last updated: 08 April 2016