Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Daniels v Sack [2023] NSWCATAP 269 Hearing dates: 3 October 2023 Date of orders: 09 October 2023 Decision date: 09 October 2023 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member G Sarginson, Senior Member Decision: Leave to appeal is refused. Catchwords: APPEALS – dismissal for want of prosecution – appellant as applicant hangs up on Tribunal during hearing – no House v The King error established. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256 Bousgas v HD Constructions (Aust) Pty Ltd [2017] NSWCATAP 122 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 FLC v NSW Trustee and Guardian [2022] NSWCATAP 385 Hoser v Hartcher [1999] NSWSC 527 House v The King [1936] HCA 40; (1936) 55 CLR 499 Johanna v Kovacic [2021] NSWCATAP 47 Maclean v Brylweski [2023] NSWCA 173 Ramzy Sebie v Andy Duong Duc Pham [2021] NSWSC 1433 Sengos v Hassan [2022] NSWCATAP 366 Seven Network (Operations) Limited v Shane Dowling [2018] NSWSC 1890 Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 206 Texts Cited: None cited Category: Principal judgment Parties: Tracy Daniels (Appellant) John Sack (Respondent) Representation: Appellant (Self-Represented) R Gillespie (Agent) (Respondent) File Number(s): 2023/00251516 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 27 July 2023 Before: S Hanstein, General Member File Number(s): RT 23/17803 REASONS FOR DECISION 1. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal dated 27 July 2023 to dismiss proceedings for want of prosecution. The proceedings dismissed involved an application by a tenant against a landlord under the Residential Tenancies Act 2010 (NSW) (RT Act). 2. In this decision, references to "the tenant" are references to the appellant; and references to "the landlord" are references to the respondent. 3. The appeal was filed on 2 August 2023. Accordingly, it has been filed within the relevant limitation period in r 25 (4) (b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). 4. The tenancy between the parties commenced on 27 February 2014. It ended in about late May/early June 2023. The residential premises was a brick veneer house with double garage located in a semi-rural area north of Newcastle, NSW. 5. On 3 February 2023, the tenant was served with a 90 day 'no grounds' Notice to terminate the lease under s 85 of the RT Act. The date of vacant possession in the Notice was 3 May 2023. 6. On 22 February 2023, the tenant was informed in writing that the landlord intended to sell the premises and sought access for prospective purchasers. 7. On 5 April 2023, the tenant was served with a Notice to terminate lease under s 87 of the RT Act on the basis of rent arrears and water usage arrears. The date of vacant possession in that Notice was 20 April 2023. 8. On 18 April 2023, the tenant filed proceedings in the Tribunal seeking a multitude of orders, including repairs; a rent reduction; compensation; and that the landlord's notices of termination be set aside on the basis that they were retaliatory. 9. On 21 April 2023 the landlord filed proceedings in the Tribunal seeking a termination order. 10. On 8 May 2023, the tenant's proceedings and the landlord's proceedings were listed together at the Tribunal for a Conciliation and Hearing (Group List). A consent order was made terminating the tenancy. The date of vacant possession identified in the order was 22 May 2023. Consent orders were also made in respect of payment of rent arrears and payment of the bond to the landlord. 11. The tenant's claims for compensation (ss 187 and 190 of the RT Act) and a rent reduction (s 44 (1) (b) of the RT Act) were set down for hearing with directions regarding the parties filing and serving documentary evidence. 12. It is unclear from the documents provided to us in the appeal what documentary evidence the tenant lodged and served in accordance with Tribunal directions, but we infer some material was lodged and served because the Tribunal's reasons on 27 July 2023 make reference to "documentary evidence provided". 13. However, other than the documents of the tenant referred to in the landlord's documents, it is unclear to us precisely what documents of the tenant were filed and served in the Tribunal proceedings that are the subject of this appeal. 14. In the appeal, the landlord provided a copy of the documents it had lodged and served in the Tribunal proceedings, which included periodic inspection reports; the rent ledger; advertisements of purportedly comparable rental properties in the area; correspondence between the parties during the course of the tenancy regarding the tenant's complaints about repair issues; and written submission by the landlord as to why the tenant should not be awarded compensation or a rent reduction. 15. From the landlord's documents in the Tribunal proceedings and the documents and submissions the tenant lodged and served in the appeal proceedings, the tenant's complaints about the landlord's alleged failure to keep the property in a reasonable state or repair or provide quiet enjoyment appear to involve following allegations: 1. A tree branch falling on the fence in about 2015. There was an insurance claim by the landlord. The fence was rebuilt. Debris were left on the property. Approximately 2 years later the tenant moved the debris to a shed and used "many sheets of fencing" to line the fence due to issues with the dogs of the tenant's family. 2. Palm trees had shed branches and leaves and had not been cut back. 3. Various persons had trespassed on the property over the years to access the reserve adjoining the property. 4. In 2023 the tenant had suffered a leg injury and aggravated her pre-existing spinal condition when she stepped into a hole in the yard, which had been caused by a "broken storm water" (sic). 5. There was water ingress and inadequate drainage issues at the property over several years, including the garage on the property being flooded on 2 occasions. 6. There was a blocked sewer in 2022 and the tenant had to clean up sewerage from bathrooms and laundry on two occasions to complete repairs. 7. The tenant fell at the premises at an unidentified date whilst cleaning gutters of the roof to clear branches and leaves, which aggravated her back condition. 1. Additionally, the tenant raised a number of issues that appeared to have limited, if any, relevance to the real issues in dispute under the RT Act other than in respect of any application to extend the time period to bring a claim for compensation. Such issues involved the tenant's medical condition pertaining to her back; her disability; disputes involving the NDIS scheme; and proceedings in the Administrative Appeals Tribunal (Cth). 2. The tenant also asserted at the appeal hearing that she was dissatisfied and treated unfairly by the landlord in respect of disposal of certain items left at the end of the tenancy, including a mobility scooter. The landlord's allegation denied any impropriety. Those complaints are not relevant to the issues pertinent to this appeal, which involves the decision to dismiss the tenant's proceedings for want of prosecution. 3. The landlords submissions filed with the Tribunal asserted that the landlord opposed the tenant's claim for reasons that included (a) many of the issues raised by the tenant had not been brought to the landlord's attention during the course of the tenancy; (b) the landlord had complied with its duty to keep the premises in a reasonable state of repair; (c) amounts claimed by the tenant for compensation substantially exceeded the monetary jurisdictional limit of the Tribunal under s 190 of the RT Act and r 40 of the Residential Tenancies Regulation 2019 (NSW) (RT Regulation); and (d) many of the claims were made beyond the time limit set out in r 39 of the RT Regulation. 4. On 23 May 2023, the landlord obtained a warrant to enforce the termination order. Subsequent to the warrant being issued the tenant vacated the property. 5. The tenant's application for compensation and a rent reduction was listed for hearing at the Tribunal on 25 July 2023. Prior to that hearing, the tenant had made a successful application to appear by audio-visual link. On 24 July 2023, a revised hearing Notice was issued by the Tribunal with the hearing to occur by audio-visual Link. 6. The tenant appeared by audio-visual link. The landlord's agent appeared in person. 7. The hearing occurred at 2.15 pm on 25 July 2023. 8. In this appeal, neither party has provided a transcript or a sound recording of what occurred at the hearing. 9. The Tribunal's written reasons (which were issued on 27 July 2023) state as follows: The applicant tenant appeared at the hearing by telephone. In response to questioning from the Tribunal in an attempt to elicit relevant information and evidence, the tenant raised a number of apparently irrelevant matters. The tenant then expressed that she did not respect the authority of the Tribunal. She stated words to the effect that it was "too hard to get the Tribunal comprehend the situation" and ended the telephone call. The Tribunal waited a period of 15 minutes, to allow the tenant to make contact should she wish to proceed with the matter, but she did not make contact. I was satisfied that the tenant indicated by her conduct that she did not intend to proceed with her claim before the Tribunal. The Tribunal indicated to the respondent landlord that the application would be dismissed for want of prosecution … 1. The reasons of the Tribunal stated that the Member had considered the legal principles regarding dismissal of proceedings for want of prosecution in Hoser v Hartcher [1999] NSWSC 527 (Hoser); and Bousgas v HD Constructions (Aust) Pty Ltd [2017] NSWCATAP 122 (Bousgas). 2. The Tribunal stated that it was satisfied that it was in the interests of justice to dismiss the proceedings for want of prosecution for the following reasons: 1. The tenant had the opportunity to present her case at the hearing but stopped participating in the hearing in circumstances where she likely realised the merits of the application were weak. 2. On the documentary evidence provided, the tenant did not have good prospects of success. The documents of the parties did not contain any clear evidence that the tenant had complained to the landlord regarding the need to repair the property or that the landlord had failed to conduct repairs with reasonable diligence. 3. The landlord had filed and served documents and the landlord's agent had attended the hearing. 4. The landlord would likely incur further costs if the proceedings were not disposed of at the hearing. 5. The tenancy was over and there was no ongoing relationship between the parties. 6. Many of the tenant's claims appeared to be out of time. CONSIDERATION 1. The Notice of Appeal and submissions filed and served by the tenant do not clearly identify any error in the decision of the Tribunal. Rather, they refer to the substance of the dispute, and other issues that are not relevant to the appeal. 2. However, we accept that in respect of a self-represented litigant, we should consider the substance of the issues raised in the context of whether they translate into an error on a question of law or other grounds upon which leave to appeal should be granted (Cominos v Di Rico [2016] NSWCATAP 5 at [13]). 3. The Tribunal has the power to dismiss proceedings under s 55 (1) (d) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). That power can be exercised at any stage of the proceedings. The power is discretionary in nature. 4. Dismissal of proceedings for want of prosecution is not a dismissal on the legal merits of the substantive proceedings. It would, in the circumstances, have been open to the Member to have determined the matter on the merits after the tenant ceased her participation. 5. The decision to dismiss proceedings for want of prosecution is an interlocutory decision under s 4 of the NCAT Act (Bousgas at [24]). By reason of s 80 (2) (a) of the NCAT Act, the tenant must satisfy the Tribunal that leave to appeal should be granted. The tenant does not have a right to appeal on an error on a question of law. However, the constraints on a grant of leave set out in cl 12 of Sch 4 of the NCAT Act do not apply. 6. The principles for leave to appeal are well established (for example, Collins v Urban [2014] NSWCATAP 17 at [84), and were recently summarised by the NSW Court of Appeal in Maclean v Brylweski [2023] NSWCA 173 as follows at [24]: It is not disputed that leave to appeal is necessary. In determining whether leave to appeal should be granted, something more must be demonstrated than that the primary judge's decision was arguably wrong. What is ordinarily required to be demonstrated is that the matter involves a question of principle or of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable (see Clarke v State of New South Wales [2015] NSWCA 27; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[34]). Moreover, where, as here, the decision the subject of the application for leave to appeal involves an exercise of discretion, what is required to be demonstrated is error in the House v The King sense. 1. The House v The King principles to which the Court of Appeal was referring to is the following passage from House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505: [i]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed … It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. 1. In Bousgas, the Appeal Panel referred at [28] to the non-exhaustive list of considerations relevant to the exercise of discretion to dismiss proceedings for want of prosecution set out by Simpson J in Hoser. The Appeal Panel pointed out that the decision in Hoser occurred prior the provisions of ss 56-60 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) (in the context of Court proceedings to which the UCPR applies) and r 36 (1) (3) and 38 (5) of the NCAT Act (in respect of NCAT proceedings), and that such principles must also be taken into account. 2. In the context of the power under r 12.7 of the UCPR to dismiss proceedings for want of "due dispatch," Sakar J in Ramzy Sebie v Andy Duong Duc Pham [2021] NSWSC 1433 summarised the principles as follows at [21]-[23]: In relation to this rule, in Green v Healthscope Ltd t/as The Hills Private Hospital [2015] NSWCA 325 ("Green v Healthscope"), Gleeson JA commented that: [26]…when there has been no hearing on the merits, a court should be reluctant to make an order dismissing proceedings for want of prosecution or want of due despatch, unless there has been an intentional and contumelious default on the part of the plaintiff, or inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible: Birkett v James [1978] AC 297at 318. Nonetheless, it has been observed that the stringency of that principle has been diminished by the enactment of ss 56–60 of the Civil Procedure Act 2005 (NSW): see State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17] (Basten JA). Accordingly, it is now necessary to have regard to the "overriding purpose" referred to in s 56, being to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 at [52] (Barrett JA). [27] The exercise of the power under UCPR r 12.7 to dismiss proceedings for want of prosecution involves a balancing exercise, in the course of which a variety of factors may be considered: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [103]. Green v Healthscope also involved a plaintiff that was under a legal incapacity. In that case, however, the plaintiff was legally represented and although there had been delays in prosecuting by the time judgment was given a tutor had been appointed for her and the matter was ready to be given a fresh hearing date: [43]. In those circumstances, Gleeson JA refused to dismiss the proceeding: [45]. In Ghosh v Ninemsm Pty Ltd (2015) 90 NSWLR 595, the Court (Macfarlan JA, Leeming JA and Adamson J in agreement) reiterated (at [40]) that the discretion to dismiss proceedings under r.12.7 "is broad and should not be confined by rigid formulae" (citing Stollznow v Calvert [1980] 2 NSWLR 749 at 751), that a decision to dismiss a proceeding "must depend on the circumstances" of a case, and that it is appropriate "to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay" (quoting Walsh JA said in Witten v Lombard Australia Ltd [1968] 2 NSWR 529 at 534). Delay was said to arise not only out of lack of activity, but also out of a "want of constructive activity": [41]. 1. There are circumstances where dismissal of proceedings for want of prosecution does involve an error of the type in House v The King for which leave to appeal should be granted. 2. In Bousgas, the Appeal Panel held that such an error occurred. In that matter (which involved proceedings by an owner against a builder for defective residential building work), there had been a history of non-compliance with procedural directions, but the owner and builder had filed and served their evidence before the hearing on 25 October 2016. At the hearing on 25 October 2016 the proceedings were adjourned by reason of the owner joining a fresh party to the proceedings. Procedural directions were made that were not complied with by the owner and the builder. The fresh party to proceedings was removed as a party. The hearing was listed for 25 March 2017, with a direction that the hearing not be adjourned unless there were exceptional circumstances. The builder wrote to the Tribunal to complain that the owner had not complied with procedural directions. The Tribunal listed the matter for an interlocutory hearing and determined at that interlocutory hearing that the proceedings should be dismissed for want of prosecution by the owner. 3. The Appeal Panel held that the Tribunal had failed to give proper consideration to the considerations set out in Hoser when exercising its discretion, and stated at [47]: The courts have made clear that unless the conduct of a party amounts to an abuse of process or is clearly of a type that shows delay causing prejudice to the other party proceedings should not be dismissed for want of prosecution. In may be accepted that these principles have been modified by, and that account must be taken of, the obligations cast upon the Tribunal and the parties to ensure that the real issues in dispute are resolved in a just, quick and cheap manner. However, in the present case, where evidence has been prepared by both parties and where there is no suggestion that there is not an issue to be tried in respect of the matters raised by that evidence, in our view it was inappropriate to make an order to dismiss proceedings for want of prosecution. 1. In FLC v NSW Trustee and Guardian [2022] NSWCATAP 385 (FLC) the Appeal Panel held there had been an error of the type in House v The King for which leave to appeal should be granted. Unlike Bousgas and this appeal, FLC involved administrative review proceedings in respect of certain decisions of the NSW Trustee and Guardian. In such proceedings, the Tribunal considers whether the administrative decision under review was the correct and preferrable decision. The decision maker has the obligation to file and serve its reasons for the decision and the documents it relied upon in making the decision. 2. The NSW Trustee and Guardian served a large volume of documentary material late. The applicant (or a person on his behalf) had filed brief submissions in support of the review. The applicant unsuccessfully sought an adjournment of the hearing on medical grounds shortly before the hearing. A person who purportedly sought to represent the applicant then wrote to the Tribunal shortly before the hearing stating that the representative could not appear because of the large volume of documents served late by the NSW Trustee and Guardian meant it was impossible to prepare for the hearing. 3. At the hearing there was no appearance by the applicant. The Tribunal raised that the proceedings should be dismissed for want of prosecution and made this order, even though that issue was not raised by the NSW Trustee and Guardian (although the NSW Trustee and Guardian did not oppose the Tribunal dismissing the application for want of prosecution after the Tribunal raised the issue of its own volition). 4. The Appeal Panel held (at [41]-[48] that the Tribunal had failed to consider the discretionary considerations relevant to dismissing a matter for want or prosecution. The Appeal Panel stated at [32]-[33]: In Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63, the Appeal Panel rejected an application to dismiss an appeal for want of prosecution founded upon an appellant's failure to provide an agreed bundle of documents ordered to be provided some 2 months before a delayed hearing of the appeal (an earlier date had to be vacated in view of the absence of the documents) in circumstances where the Appeal Panel was not satisfied that there was a reasonable explanation for the failure. In doing so, the Appeal Panel referred to the consideration of the principles relating to want of prosecution by the Appeal Panel in Bousgas v H.D. Constructions (Aust) Pty Ltd [2017] NSWCATAP 122 and K&J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139 and stated that, amongst other things: (1) The approach outlined in Birkett v James [1978] AC 297 in which it was said that a court should be reluctant to dismiss proceedings for want of prosecution unless there had been either intentional or contumelious default on the part of the plaintiff or inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible had been diminished with the enactment of legislative provisions in the Civil Procedure Act 2005 (NSW), including that the overriding purpose was to facilitate the just, quick and cheap resolution of the real issues in the proceedings, which was in the same terms as s 36 (1) of the NCAT Act. In this regard, the Appeal Panel referred to the decision of Basten JA in New South Wales v Plaintiff [2012] NSWCA 248. (2) The scope of the Tribunal's power to dismiss for want of prosecution in s 55 (1) (d) of the NCAT Act must be determined in accordance with s 36 (1) of the NCAT Act and the general legislative context, and that the obligations imposed on the Tribunal and the parties and their representatives by ss 36 (1), (3) and (4), and s 38 (5) (c) of the NCAT Act are relevant matters to be taken into account in considering whether to make an order to dismiss proceedings for want of prosecution. (3) A useful summary of the factors to be considered remained those outlined by Simpson J in Hoser v Hartcher [1999] NSWSC 527, albeit that this decision came prior to the enactment of s 56 of the Civil Procedure Act. These factors included that: (1) the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed…. ….. (10) plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant… (11) the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics… 1. The Appeal Panel pointed out that in the circumstances where there was no appearance by the applicant, the Tribunal could have dismissed the proceedings for non-appearance under s 55 (1) (c) of the NCAT Act (which was not a course of action available to the Tribunal in the circumstance of this matter, as the tenant appeared at the commencement of the hearing and then withdrew after the hearing had commenced); or heard the application on the evidentiary material and submissions properly before it the absence of the applicant (but noting that the proceedings were administrative review proceedings, and that such a course of action must be procedurally fair and consistent with the Tribunal's obligations under s 38 (5) (c) of the NCAT Act). 2. There have also been Appeal Panel proceedings where no error of a type under House v The King principles sufficient to grant leave to appeal have been established (Johanna v Kovacic [2021] NSWCATAP 47). 3. In respect of denial of procedural fairness where a party deliberately withdraws from participation during the course of a hearing, an Appeal Panel stated in Zonnevylle v Secretary, Department of Education [2023] NSWCATAP 206 at [92]-[94]: The principle is clear, that no denial of procedural fairness arises in a case where a litigant by reason of his own voluntary decision, decides to withdraw from the hearing. For example, the principle was stated by the Supreme Court of Victoria in Cathcart v Wang [2021] VSC 685 at [136] as follows: Sometimes, what might appear to be a lack of procedural fairness will, in truth, be no such thing because the affected party may be the author of his or her own misfortune. A party might deliberately hang up during a phone hearing, or switch off a computer in a Zoom hearing, or walk out of the hearing room in a huff during an in-person hearing. While each case will turn on its own facts, this Court would be slow to countenance the grave step of setting aside an otherwise error-free order when a party has behaved in that fashion but thought better of it later. Further, some analogy can be drawn from the remarks of the Court of Appeal in Collier v Attorney General for NSW [2021] NSWCA 16. In that case the plaintiff terminated her participation in the telephone hearing by hanging up. The Court found at [19]–[20] as follows: Before the primary judge Mrs Collier was granted leave to appear by telephone, which she did. She agrees that she terminated the call and thus her participation in the hearing. Such an action is equivalent to walking out of court, or not returning after an adjournment. Sometimes such conduct is explained by, for example, a medical emergency. However, a party, including an unrepresented party, cannot terminate proceedings by simply failing to attend without excuse or justification. If an excuse or justification is proffered promptly, it may on occasion result in a hearing being reopened or resumed. However, a party who acts in this way without justification cannot complain of procedural unfairness if the judge decides that the hearing should proceed in his or her absence. Were it otherwise, the court process could be manipulated at the whim of a disaffected party, with consequential prejudice to other parties in the proceedings and, consequentially, those involved in other proceedings. Although Mrs Collier appeared to be suggesting that there was error on the part of the primary judge in proceeding once she had terminated the telephone call, that was not so. The judge immediately took steps to seek to re-establish contact, no doubt to ensure that the disconnection was not accidental or the result of a technical fault. Concededly, in this case, it was deliberate on the part of Mrs Collier. In the circumstances, and having sought to re-establish contact, there was no unfairness or other form of error involved in the judge proceeding with the hearing. Finally, it is worth referring to the remarks made by the Supreme Court in Antonio Di Liristi v NSW Public Trustee [2021] NSWSC 1347. Whilst the facts are not directly analogous, the general observations made by the Court (at [164]) are instructive as follows: As a general comment I would wish to state that both Tribunal members acted with consummate professionalism. The plaintiff, even though a litigant in person, made it abundantly clear in both hearings when he was not arguing belligerently with someone or other that the Tribunal was in effect an obstacle in his way to the Supreme Court. Apart from the obvious disrespect clearly intended by the exchanges only some of which I have made reference to, it ill behoves any person, litigant in person or otherwise claiming a denial of procedural fairness to so blatantly insult and obstruct the very body attempting to conduct a hearing so as to render almost futile the very right he now asserts he was denied. The plaintiff in both hearings displayed a clear contempt for the Tribunal and its workings. When he was not insulting the Tribunal he was insulting his brother, the Trustee and Guardian and/or his parents' representative. His attitude showed a complete disregard for any genuine desire to be accorded a right simply to be heard. Rather he promised in both Tribunal hearings an appeal to the Supreme Court would be pursued so the Tribunal could be put in its place. A hearing before the Tribunal was it seems in fact the last thing he wanted. 1. We are not satisfied that the Tribunal committed an error of a type under House v The King principles, nor that leave to appeal should be granted. 2. The reasons of the Tribunal as to why the proceedings were dismissed are economical, but in our view they are adequate. We are not satisfied that the Tribunal failed to consider the relevant discretionary considerations applicable to whether proceedings should be dismissed for want of prosecution. The factual circumstances of this matter are clearly very different to the circumstances in Bousgas and FLC. 3. As discussed previously, the tenant failed to provide a transcript of the hearing or a sound recording of the hearing. The procedural direction made at the Appeal Panel Call-Over on 23 August 2023 make clear that if the appellant seeks to rely upon what happened at the hearing in the appeal, a transcript or sound recording must be filed and served. 4. As the tenant has failed to provide a transcript or sound recording of the hearing, we are unable to consider whether there is anything that arises from the verbal interaction between the tenant and the Member in the period prior to the tenant disconnecting and ceasing to participate in the hearing that may constitute or evidence an error under House v The King principles sufficient to grant leave to appeal. However, it is the tenant who bears the consequences of failing to provide a sound recording or transcript (Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 at [25]; Sengos v Hassan [2022] NSWCATAP 366 at [42]-[43]). 5. The decision of the tenant to cease to participate in the hearing was sufficient to constitute intentional and contumelious default by the tenant in all the circumstances of the matter, and the Tribunal then weighed relevant considerations when exercising its discretion to dismiss the proceedings for want of prosecution. The exercise of the discretion was not, in all the circumstances unreasonable or plainly unjust; nor did it involve the incorrect application of legal principles on the basis of the materials before us in the appeal. Dismissal for want of prosecution in analogous circumstances occurred in Seven Network (Operations) Limited v Shane Dowling [2018] NSWSC 1890. 6. Finally, whilst we may conduct the appeal as a new hearing under s 80(3)(a) of the NCAT Act, we do not consider that the grounds of appeal warrant it. Nor do we think the tenant would have any prospects of success if we did so, on the limited material she has lodged in the appeal. The tenant had been directed to lodge all of the material she had lodged at first instance on which she wished to rely and was given the opportunity to seek leave to rely on new evidence. ORDERS 1. Our order is: 1. Leave to appeal is refused. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2023