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

[2016] NSWCATAD 119

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	T & S Nominees Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAD 119
Hearing dates:	11 March 2016
Date of orders:	16 June 2016
Decision date:	16 June 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Frost, Senior Member
Decision:	(1) The application for review is dismissed. (2) The Applicant is to pay the Respondent’s costs from 20 January 2016.
Catchwords:	DISMISSAL – failure to appear – failure to comply with Tribunal’s directions – want of prosecution of proceeding – proceeding lacking in substance COSTS – special circumstances – proceedings conducted in a way that unnecessarily disadvantaged another party – unreasonably prolonging the time taken to complete the proceedings – failure to comply with the duty to co-operate with the Tribunal to give effect to the ‘guiding principle’ (to facilitate the just, quick and cheap resolution of the real issues in the proceedings)
Legislation Cited:	Land Tax Management Act 1956 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Taxation Administration Act 1996 (NSW)
Category:	Procedural and other rulings
Parties:	T & S Nominees Pty Ltd (Applicant) Chief Commissioner of State Revenue (Respondent)
Representation:	Counsel: S Haddad (Applicant) E Bishop (Respondent) Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	1410439

Reasons for decision

Introduction and summary

1. The Applicant in these proceedings is the registered proprietor of a property in Marsden Park which the Chief Commissioner has assessed as subject to land tax for the 2012, 2013 and 2014 land tax years. The Applicant disputes the assessments, claiming that the property satisfies the requirements for land tax exemption under s 10AA(2) and (3) of the Land Tax Management Act 1956 (NSW) (the LTM Act).

2. Currently before the Tribunal is an application by the Chief Commissioner for dismissal of the proceedings pursuant to s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), and for costs from 20 January 2016 pursuant to s 60 of the NCAT Act.

3. The Chief Commissioner’s application for dismissal is founded principally, but not entirely, on the Applicant’s failure to appear at the hearing of the substantive application on 1 February 2016. I will describe the circumstances of that failure later in these reasons. A further ground of appeal is that the Applicant has failed to prosecute its application.

4. On the costs application the Chief Commissioner accepts that the general rule in this Tribunal is that each party to proceedings is to bear their own costs, but submits that special circumstances warrant a departure from that general rule.

5. For the reasons that follow I have decided to grant the Chief Commissioner’s applications.

The legislation

6. It is first necessary to note the legislative basis of the Applicant’s land tax exemption claim. The LTM Act provides as follows, in s 10AA(2) and (3):

(2) Land that is not rural land is exempt from taxation if it is land used for primary production and that use of the land:

(a) has a significant and substantial commercial purpose or character, and

(b) is engaged in for the purpose of profit on a continuous or repetitive basis (whether or not a profit is actually made).

(3) For the purposes of this section, land used for primary production means land the dominant use of which is for:

…

(b) the maintenance of animals (including birds), whether wild or domesticated, for the purpose of selling them or their natural increase or bodily produce,

…

7. For its application to the Tribunal to be successful, the Applicant must establish two things:

1. first, that the dominant use of the land is as specified in paragraph (b) of s 10AA(3); and

2. second, assuming that it can establish the first, that the specified use of the land:

1. has a significant and substantial commercial purpose or character (s 10AA(2)(a)), and

2. is engaged in for the purpose of profit on a continuous or repetitive basis (whether or not a profit is actually made) (s 10AA(2)(b)).

8. Furthermore, on an application for review of the Chief Commissioner’s assessments, the Applicant has the onus of proving its case: s 100(3) of the Taxation Administration Act 1996 (NSW) (the Administration Act).

9. I now turn to the relevant provisions of the NCAT Act.

10. In relation to dismissal, s 55(1) provides as follows:

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.

11. In relation to costs, s 60 of the NCAT Act provides as follows:

(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 Division 11 of Part 3.2 of the Legal Profession Act 2004 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.

12. On the costs application the Chief Commissioner relies on paragraphs (a), (b), (f) and (g) of s 60(3).

Evidence relied on in the dismissal and costs applications

13. The following material was taken into evidence for the purposes of these applications:

• Exhibit R1 – affidavit of Sharon Gordon affirmed on 1 February 2016

• Exhibit R2 – affidavit of Kathleen Kerr affirmed on 1 February 2016

• Exhibit R3 – affidavit of Sharon Gordon affirmed on 27 May 2015

• Exhibit R4 – affidavit of Kathleen Kerr affirmed on 19 February 2016

• Exhibit R5 – affidavit of Kathleen Kerr affirmed on 10 March 2016

• Exhibit R6 – letter dated 23 March 2015 from the Crown Solicitor’s Office to Ms Sarah Haddad, the Applicant’s legal representative at the time

• Exhibit A1 – affidavit of Milly Haddad sworn on 27 January 2016

• Exhibit A2 – affidavit of Jim Haddad sworn on 29 January 2016

14. There was no oral evidence.

15. Sharon Gordon and Kathleen Kerr are employed solicitors in the Crown Solicitor’s Office. Milly Haddad is one of the two directors of the Applicant; the other director is her mother, Samira Haddad. Jim Haddad is Milly’s brother. Although not a director of the Applicant, Jim Haddad describes himself in Exhibit A2 as ‘the only person with sufficient knowledge of the facts in this matter to provide instructions on behalf of the applicant company’.

16. From now on in these reasons I will refer to Jim Haddad as ‘Jim Haddad’ or ‘Mr Haddad’, to Milly Haddad as ‘Milly Haddad’ and to the Applicant’s counsel, Sarah Haddad, as ‘Ms Haddad’.

The history of the proceedings

17. Both Ms Gordon and Ms Kerr give evidence about the history of the substantive proceedings.

18. The application for review was lodged with the Tribunal on 14 August 2014. The Applicant sought a stay ‘for the payment of land tax as indicated in the attached review … pending the outcome of this matter’. That application was filed on behalf of the Applicant by Ms Haddad. The stay application was heard on 3 October 2014; on 10 December 2014 the Tribunal handed down its decision, refusing the stay and awarding costs against the Applicant.

19. On 24 February 2015 the Tribunal made orders for the filing and service of evidence and submissions. On 23 March 2015 the Chief Commissioner wrote to the Applicant about the deficiencies of its evidence and the weakness of its case. On 1 April 2015 the Chief Commissioner, in accordance with the timetable, requested particulars of the Applicant’s case. The particulars were meant to be provided by 21 April 2015 but nothing was received by the Chief Commissioner. By 28 May 2015 the Chief Commissioner was concerned about the Applicant’s substantial breach of the timetable and sought to have the matter relisted so as to seek the dismissal of the application for want of prosecution. On 2 June 2015 the matter was listed for directions. There was no appearance for the Applicant. The Chief Commissioner applied for the application to be dismissed. The matter was adjourned to 16 June 2015. On that occasion Ms Haddad appeared for the Applicant. When Ms Gordon indicated to the Tribunal (Transcript annexed to Exhibit R1) that she had not received a response to the request for particulars, Ms Haddad said she had ‘sent a copy out by post on 8 April’ (Transcript page 1 line 44) and was unaware that the Chief Commissioner had not received it. The Tribunal noted (Transcript page 4 line 14) that ‘there’s any number of correspondence that hasn’t been responded to’ and reset the timetable, including making provision for the Chief Commissioner’s expert to inspect the property.

20. The Tribunal also noted at the dismissal hearing on 16 June 2015 (Transcript page 4 line 31) that ‘the applicant has served all of its evidence-in-chief that it wishes to serve and has provided all submissions-in-chief that it wants to provide’. That is significant, since the only evidence filed by the Applicant is an affidavit of Jim Haddad dated 20 February 2013. Mr Haddad has no involvement in the day-to-day operation conducted on the property in question. There is no evidence from the third party that conducts the primary production activities (Ganian Pty Ltd) that are said to support the Applicant’s claim for exemption from land tax.

21. On 16 June 2015 the Tribunal directed that the Chief Commissioner file and serve his evidence and submissions by 30 August 2015 and the Applicant file and serve any evidence and submissions in reply by 15 September 2015. The Chief Commissioner’s evidence, including expert reports, was served one day late, on 31 August 2015, and the submissions on 4 September 2015, two weeks late. On 22 September 2015 the matter was set down for hearing on 1 and 2 February 2016 and the Applicant was given until 13 October 2015 to file and serve its evidence and submissions in reply.

22. On 14 October 2015 – one day after the extended due date – the Applicant through its counsel notified Ms Gordon of the Crown Solicitor’s Office that there would be a delay in the finalisation of its evidence in reply (Exhibit R2, page 4):

The applicant is in the progress of assessing the respondent’s expert evidence by further information sought from Ganian and other qualified experts. These third parties require additional time to provide this further information, which include information in relation to cultivation of cow feed, stud operation and grazing of cattle. As soon as this further information is received we will be able to settle our evidence in reply, and serve it on the respondent as soon as possible.

23. Almost six weeks later, on 23 November 2015, Ms Haddad sent an email to Ms Gordon saying that the Chief Commissioner would be served with the reply evidence and submissions within the next two weeks (Exhibit R2, page 5). Ms Gordon by return email on the same day asked whether the reply evidence would contain expert evidence. As at the date of the dismissal hearing, on 11 March 2016, no reply evidence or submissions had been filed by the Applicant, and no response to Ms Gordon’s email dated 23 November 2015 had been provided.

24. On 20 January 2016 Ms Gordon wrote to the Tribunal in the following terms (Exhibit R2, page 10):

The Applicant has not complied with the direction made by the Tribunal in relation to the filing and service of further evidence and submissions and the hearing is set down in less than two weeks. I understand from conversations between the parties’ respective counsel that one of the Applicant’s witnesses is suffering from a terminal illness and that the Applicant’s counsel attributes their delay to this witnesses’ (sic) illness.

In the circumstances, the Respondent seeks an order that the hearing on 1 and 2 February 2016 be vacated and the matter be listed for first directions (sic) on 9 February 2016.

25. Then, on 25 January 2016, Ms Gordon sent a further email to Ms Haddad, as follows (Exhibit R2, page 12):

I refer to our telephone conversation on 21 January 2016.

In that telephone conversation you indicated you would try and inform me whether the applicant required the respondent’s witnesses for cross-examination by Friday, 22 January 2016, although you did also indicate you may not be in a position to inform me of your client’s position in this regard until today. Please ensure that I have your client’s instructions on this point today. One of the respondent’s experts will need to fly into Sydney for the hearing and I do not want to incur the cost of the flight and booking fees if that is not necessary.

Also in our telephone conversation you indicated that you would be in a position to file and serve the applicant’s evidence and submissions in reply by Wednesday 27 January 2016. You indicated that this evidence was going to the single use of the land only.

As you know, the respondent is concerned about the applicant’s delay in the preparation of its reply material and does not want to be prejudiced by receiving this material so close to the hearing.

I understand that you will agree to vacate the hearing date should your client’s evidence and other material in reply will not be served (sic) on me this Wednesday. Please confirm that I am correct in this understanding.

26. Ms Haddad’s email reply two days later, on 27 January 2016, said (Exhibit R2, page 11):

At this stage the authorised representative on behalf of the applicant, Jim Haddad, has become too ill to provide instructions to finalise the evidence on behalf of the applicant in these proceedings, and to attend the hearing on 1 and 2 February 2016. It was previously expected that he would be well enough to provide relevant instructions on behalf of the company by last Friday for the proceedings to progress. The applicant has no other option but to support an application for an adjournment of the hearing date.

A director of the applicant, Milly Haddad, is in the process of providing evidence in chief, in the form of an affidavit, attesting to the authority she provided her brother, Jim Haddad, to conduct these proceedings on behalf of the company. This affidavit will be served with an affidavit from Jim Haddad supporting an application for an adjournment. I estimate that these 2 affidavits will be filed and served within the next 2 days.

27. On 29 January 2016, the last business day before the first scheduled day of the hearing, Ms Kerr of the Crown Solicitor’s Office wrote to Ms Haddad in the following terms (Exhibit R2, page 19):

You have recently informed of the deteriorating health of the only witness in the Applicant’s case, Mr Jim Haddad. As I understand the position, you intend to make an application to vacate the hearing dates because of this situation.

I am instructed to put a proposal for the way forward to you that should address the issues that have arisen for the Applicant and will allow the matter to proceed on Monday 1 February 2016.

● The Applicant will inform in writing that it does not intend to put on any additional evidence in the substantive proceeding;

● The Respondent will withdraw his application to vacate the hearing;

● The Respondent will not require Mr Haddad for cross-examination, so that his affidavit can be tendered subject to any other objections or submissions about the weight of that evidence

● Peter Schuster [one of the Respondent’s experts] is to give evidence not before 10am on Tuesday 2 February 2016, if required for cross-examination.

Related to the last dot point, I request that you seek instructions about whether the Respondent’s experts are required for cross-examination, as a matter which requires your client’s urgent consideration.

I note that Ms Milly Haddad is one of the current directors of the Applicant, and I would suggest that you can obtain instructions from her and/or Samira Haddad, the other present director, about the Respondent’s proposal.

28. On the same day, 29 January 2016, Ms Kerr also wrote to the Tribunal in the following terms (Exhibit R2, page 23):

I refer to the above matter which is listed for hearing on 1 & 2 February 2016. I also refer to my letter dated 21 January 2016, seeking that the hearing be vacated on the grounds set out in that letter.

I note that Ms Kerr was informed this morning that a decision on whether the hearing will be vacated is imminent pending receipt of material from the Applicant.

As the way forward has not been clear, the Respondent has had to assume that the hearing may go ahead and consequently, the writer, counsel and the experts have been preparing for hearing.

So as not to waste the Tribunal’s time, or to have the Respondent’s costs thrown away, I have proposed an alternative course to the Applicant’s representative, which is set out in my letter, attached.

29. On the afternoon of the same day, 29 January 2016, Ms Haddad sent an email to the Registrar of the Tribunal in the following terms (Exhibit R2, page 21):

I refer to the above matter which is listed for hearing this Monday and Tuesday, being 1 and 2 February 2016.

I will not be appearing at the hearing, as the applicant has not instructed me to do so. The only person authorised to provide instructions on behalf of the applicant is Jim Haddad and he has been too ill to provide instructions for me to represent the applicant company for this upcoming hearing. An affidavit by a director of the company providing this authority to Jim Haddad has been filed and served. Evidence of Jim Haddad’s illness and the effect it has had on the applicant providing instructions for the purposes of this hearing has been filed and served.

If the crown solicitors office and the tribunal wish to proceed on Monday in an alternative fashion, it can only be done in the absence of the applicant.

If the crown is alleging there is another director of the applicant who can provide instructions, they will have to provide evidence of that where this so-called director has been unable to provide me with any instructions to represent them and where there is positive evidence from a director of the applicant conferring all authority in relation to this matter to Jim Haddad.

30. On 29 January 2016 the Tribunal refused to vacate the hearing dates of 1 and 2 February 2016. It is not clear whether the Tribunal’s decision to refuse the vacation request was communicated to the parties before or after Ms Haddad’s email set out in [29] above.

30. The affidavits referred to by Ms Haddad in her email at [29] are Exhibits A1 and A2. I set out the relevant parts of Exhibit A1, Milly Haddad’s affidavit, sworn 27 January 2016, below:

I am a director of the applicant in these proceedings. I have been a director of the applicant from in or about 2004 to the present. …

My mother, Samira Haddad, is the only other director of the applicant. My mother is an elderly woman of 79 years of age with multiple health problems. Due to her medical conditions and her age, my brother and myself have assisted to conduct affairs on behalf of the company in this matter.

The land … subject of these proceedings, was purchased by T & S Nominees in or about 1997. The property was exempt from land tax from 1998 to 2011.

On or about 5 August 2013 the applicant received notice in writing that the land tax exemption no longer applied in relation to the property as the property was re-zoned ‘industrial’ and the cattle and goat operations do not satisfy the commerciality test.

On or about 2 September 2013, my brother, Jim Haddad, assisted me to draft a letter to the review branch of the Office of State Revenue (OSR), stating that the property is incapable of being used for any industrial or non-rural use, despite the property being re-zoned to ‘industrial’. … On or about 24 March 2014 and 28 April 2014 my brother, Jim Haddad, assisted me to write to the OSR further emphasising that the property was only capable of being used for one single existing use; and as a result the land tax exemption should remain applicable to the property. …

On or about 14 June 2014 the applicant received the OSR’s final decision in relation to the matter. In or about late June 2014 to late July 2014, as a director of the applicant, I gave Mr Jim Haddad, full authority on behalf of the company to engage legal representation for the issues in these proceedings to be dealt with. I further gave Mr Jim Haddad authority to commence proceedings in the NSW Civil and Administrative Tribunal on behalf of the company; as he has full knowledge of the issues in dispute that to my mind are of relative complexity. This authority was in the form of oral conversations between Mr Jim Haddad and myself in or about late June 2014.

He said in words to the effect of: “The matter would have to be investigated and you would have to go to court to deal with the matter further.”

I said in words to the effect of: “As you have been assisting me with this matter from the beginning and I do not really understand it, I would have trouble seeking legal representation where I do not have enough knowledge of the facts in the matter. Could you please seek legal representation on behalf of the company and the company will pay you a reasonable fee for your services and all expenses.”

He said in words to the effect of: “Yes.”

In or about late July 2014 Jim Haddad stated words to me in the effect of: “On behalf of T & S Nominees I have obtained legal advise (sic) that there are arguable grounds to review OSR’s decision in the tribunal where the property has only one single use, which is not industrial or non-rural. Would the company like to make an application to the tribunal to have the decision further reviewed?”

I said in words to the effect of: “Yes. Would you please take all the necessary steps on behalf of the company to engage legal representation to have the decision reviewed in the tribunal; and provide all relevant information in relation to the matter on behalf of the company?”

He said in words to the effect of: “Yes.”

From the conversations outlined … above I understood that Jim Haddad is fully accustomed with the matter, as I have insufficient knowledge of the facts. I also understood from these conversations that Jim Haddad would provide instructions on my behalf as a director of the company to the applicant’s legal representative, where I would not have sufficient knowledge of the facts in this matter to do so.

32. The relevant parts of Jim Haddad’s affidavit, Exhibit A2, sworn 29 January 2016, are set out below:

I refer to the affidavit of Milly Haddad sworn on 27 January 2016. I am the only person with sufficient knowledge of the facts in this matter to provide instructions on behalf of the applicant company.

I was diagnosed with Mesothelioma on or about 27 May 2013. …

The symptoms of my illness deteriorated from in or about late 2015 to early 2016; where I have been unable to provide instructions to enable counsel to finalise the evidence on behalf of the applicant in these proceedings; and I am unfit to attend the hearing dates in these proceedings listed on 1 and 2 February 2016.

In or about October 2015 I suffered an exacerbation of my symptoms due to the Mesothelioma. I felt more pain, tiredness and it affected me to the point where I was unable to satisfactorily focus on this complex matter in order to provide necessary instructions and further evidence.

My pain medication was increased in October 2015 and this made me more tired and sleepy; further reducing my ability to focus. My specialist […] decided to try and improve my symptoms by shrinking the cancer with radiotherapy. …[M]y Radiotherapy schedule [was] carried out from 30 November 2015 to 14 December 2015 inclusive. My symptoms are now starting to improve to the point where I can work on this matter at a steady pace. That is I am better able to understand Counsel’s advise (sic), provide necessary instructions to counsel and provide the relevant facts, and evidence.

Due to the above circumstances I respectfully request the tribunal allow an adjournment of the hearing dates on 1 and 2 February 2016 to enable me time to provide instructions for the evidence to be finalised on behalf of the applicant, where my condition is now steadily improving; and to provide instructions on behalf of the applicant in relation to the conduct of the proceedings and/or hearing.

If the hearing proceeds on 1 and 2 February 2016 the applicant will be severely prejudiced. I have not been in a position to provide further instructions in time, due to my terminal illness, under circumstances where I am the only person on behalf of the applicant who has sufficient knowledge of the facts to provide instructions; and where a director of the applicant has entrusted me to do so. I would also be physically unfit to provide instructions to counsel on those hearing dates where my condition has not improved to a degree to sufficiently do so, even though it is steadily improving at the present time.

33. There was no appearance by or on behalf of the Applicant at the hearing on 1 February 2016.

Dismissal

34. The Chief Commissioner relies on NCAT Act s 55(1)(c) – failure to appear – and s 55(1)(d) – want of prosecution of the proceedings. In oral submissions the Chief Commissioner also relied on s 55(1)(b) – the proceedings are misconceived or lacking in substantive. That submission was dealt with by the Applicant in its written submissions and cannot be regarded as coming as a surprise to the Applicant.

35. On the ‘failure to appear’ ground, the Applicant’s representative submits as follows (Outline of Applicant’s submissions in relation to the Respondent’s application for dismissal – ‘AWS No. 1’; footnotes omitted):

[1]   From on or about 25 January 2016 to 28 January 2016, the respondent in these proceedings attempted to seek an adjournment of the hearing date listed on 1 and 2 February 2016.

[2]   The applicant consented to this application on the basis that the terminal illness of the authorised representative had deteriorated to such an extent where the proceedings brought by the applicant came to a halt. The applicant notified the tribunal and the respondent of these circumstances. The applicant notified the respondent prior to notifying the tribunal of these circumstances.

[3]   On or about 29 January 2016 to 1 February 2016 the respondent in these proceedings then appeared to have changed its mind, without prior notice to the applicant, and decided to make an application for dismissal.

[4]   The applicant opposes that its non-appearance at the hearing listed on 1 and 2 February 2016 is grounds alone for a dismissal application. Mesothelioma is an aggressive cancer; and there are times when it can affect the authorised representative of the applicant, inhibiting him to provide instructions. He was aware that the matter was listed for hearing on 1 and 2 February 2016, but was too ill to proceed to finalise any evidence in reply, provide instructions for the hearing to proceed on that date or properly instruct counsel to appear on that date.

36. It is clear that the Chief Commissioner’s request for a vacation of the hearing dates, made on 20 January 2016 ([24] of these reasons), was triggered by the failure of the Applicant to file and serve its evidence and submissions in reply and the prejudice that the Chief Commissioner would suffer if that material were to be provided only a matter of days before the scheduled hearing.

37. As long ago as 14 October 2015 Ms Haddad had indicated ([22] of these reasons) that the Applicant was ‘assessing the respondent’s expert evidence’ and that the Applicant’s evidence in reply would be served ‘as soon as possible’. On 23 November 2015 ([23] of these reasons) Ms Haddad said that the evidence and submissions in reply would be provided ‘within the next 2 weeks’. There was no indication in either October or November 2015 that the delay in providing that material was caused by Jim Haddad’s illness. And yet on 29 January 2016 ([32] of these reasons) Mr Haddad was able to state that the symptoms of his illness deteriorated ‘from in or about late 2015 to early 2016’. That statement is difficult to reconcile with the failure of the Applicant to provide a contemporaneous explanation for the continuing non-compliance with Tribunal directions during October and November 2015 and afterwards.

38. The Applicant’s so-called ‘consent’ to the Chief Commissioner’s vacation request, and subsequent non-appearance on 1 February 2016, appear to me to be entirely opportunistic. The Applicant had created the set of circumstances that gave rise to the Chief Commissioner’s application and then tried to take advantage of those circumstances by offering its ‘consent’ to the vacation request. The problem for the Applicant is that the Tribunal refused to vacate the hearing dates, as it was entitled to do. And so, by close of business 29 January 2016, the Applicant was on notice that the hearing would be proceeding, and there is no satisfactory explanation for the Applicant’s failure to appear. Even accepting that Mr Haddad was too ill to attend, and that the Applicant ‘[had] not instructed’ Ms Haddad to appear (in preference to the less benign, but possible, alternative that the Applicant had specifically instructed Ms Haddad not to appear), there is no explanation for why Milly Haddad did not appear. In all the circumstances that shows an unacceptable disdain for both the Tribunal and the Chief Commissioner.

39. On the ‘want of prosecution’ ground, the Applicant submits (AWS No. 1, at [5]) that the delay in filing and serving the Applicant’s evidence and submissions in reply is due ‘partly’ (not completely – but no additional reason is proffered) to Jim Haddad’s terminal illness. Furthermore, the Applicant complains that the Chief Commissioner also breached orders by failing to serve its evidence on time on or about 28 June 2015. However, the lateness on the part of the Chief Commissioner was a direct result of the non-receipt of the response to the request for particulars (which Ms Haddad claimed to have sent on 8 April 2015 but which inexplicably did not arrive). In any event, the Chief Commissioner’s evidence was only one day late, and the submissions two weeks late. Neither the evidence nor the submissions were ‘4-5 months late’, as submitted in AWS No. 1 at [6].

40. The fact is that the Applicant has been non-compliant with Tribunal directions over an extended period of time.

41. On top of that, it has failed to address in its evidence a central part of what must be its case if it is to succeed on this review – namely, the ‘commercial purpose or character’ of the activities conducted on the property. This shortcoming might be regarded as contributing to a want of prosecution of the proceeding; it might equally be regarded as demonstrating that the proceedings are lacking in substance.

42. The Applicant submits that the property has no non-rural use and it only has one single use which is not non-rural. It explains in AWS No. 1 at [7]:

The applicant opposes that its case is lacking in substance. The primary legal argument advanced on behalf of the applicant is whether or not the commerciality test under s 10AA of the Land Tax Management Act 1956 in relation to the exemption of primary production applies to a property that has no non-rural use, despite the zoning of the land; and has only one single use that is not non-rural. This argument is supported by the relevant common law in Maraya Holdings Pty Ltd v Chief Commissioner of State Revenue [2013] NSWCA 408. As the tribunal is required to assess this common law in relation to the relevant legislation at the substantive hearing; the application has reasonable prospects of success.

43. Contrary to the Applicant’s submission, the authorities establish that the commerciality test (which I think the Applicant identifies as an amalgam of paragraphs (a) and (b) of s 10AA(2)) does apply in any case where land is zoned non-rural. I do not see that there is any scope at all for the Applicant to satisfy s 100(3) of the Administration Act in the absence of any evidence addressing that test.

44. Continuing non-compliance with Tribunal directions, combined with a failure to address an essential element of its own case even though the Respondent has alerted the Applicant to that shortcoming, amounts to a want of prosecution of the proceedings. The failure to file and serve evidence to address the commerciality test also demonstrates that the proceedings are lacking in substance.

45. Paragraphs (b), (c) and (d) of s 55(1) of the NCAT Act are engaged. The question for the Tribunal is whether the discretion to dismiss the proceedings should be exercised. In the circumstances I am comfortably satisfied that it should. Even making allowance for Jim Haddad’s illness, the Applicant’s conduct of its case falls far short of the Tribunal’s expectations. It has put in jeopardy the Tribunal’s ability to comply with its statutory object (in s 3 of the NCAT Act) of resolving the real issues in proceedings justly, quickly and cheaply.

46. I dismiss the proceedings under s 55(1)(b) of the NCAT Act because, on the Applicant’s own case, they are lacking in substance.

47. I dismiss 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.

48. I also dismiss the proceedings under s 55(1)(d) of the NCAT Act for want of prosecution.

Costs

49. Costs may only be awarded if the Tribunal is satisfied that there are special circumstances warranting a departure from the general rule that each party bears its own costs. In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the matters in s 60(3) of the NCAT Act.

50. Under paragraph (a) of s 60(3), the Tribunal may have regard to whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings. Under paragraph (b) of s 60(3), the Tribunal may have regard to whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings.

51. The Chief Commissioner submits that the Applicant’s failure to attend the hearing answers the description in both paragraphs (a) and (b) of s 60(3). I agree.

52. Under paragraph (f) of s 60(3), the Tribunal may have regard to whether a party has refused or failed to comply with the duty imposed by s 36(3) of the NCAT Act. That duty is to co-operate with the Tribunal to give effect to the ‘guiding principle’ (to facilitate the just, quick and cheap resolution of the real issues in the proceedings) and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal. Plainly the Applicant, by continuing to fail to comply with the Tribunal’s directions to file and serve evidence and submissions in reply, has not complied with that duty. The Applicant failed to notify the Tribunal and the Chief Commissioner in a timely fashion as to the reasons for that continuing non-compliance; it failed to respond adequately, and in a timely fashion, to the Chief Commissioner’s correspondence in January 2016 seeking an indication as to whether the Applicant required the Chief Commissioner’s witnesses for cross-examination, causing the Chief Commissioner to incur, unnecessarily, the expense of transport and accommodation for those witnesses; and it left it almost literally to the last minute to notify the Chief Commissioner and the Tribunal that its legal representative did not have instructions to appear at the hearing on 1 February 2016.

53. I am satisfied, on the basis of those considerations, that special circumstances warranting a departure from the general rule, that each party bear its own costs, have been established. It is appropriate, in my view, that the Chief Commissioner’s costs since 20 January 2016 be borne by the Applicant. Early and adequate communication by the Applicant to the Respondent would have prevented the unnecessary incurring of costs by the Chief Commissioner. Those costs, as outlined in Exhibits R4 and R5, should be met by the Applicant.

Decision

54. (1) The application for review is dismissed.

(2) The Applicant must pay the costs of the Respondent from 20 January 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: 16 June 2016