One 21 Pty Limited & Ors v Perpetual Trustees Australia Limited t/as Orange Metroplaza [2004] NSWADT 245

CITATION: One 21 Pty Limited & Ors v Perpetual Trustees Australia Limited t/as Orange Metroplaza [2004] NSWADT 245 DIVISION: Retail Leases Division APPLICANTS One 21 Pty Limited PARTIES: Gafftrim Pty Limited Vanscott Pty Limited RESPONDENT Perpetual Trustees Australia Limited trading as Orange Metroplaza FILE NUMBER: 045015 HEARING DATES: 08/10/2004 SUBMISSIONS CLOSED: 10/14/2004 DATE OF DECISION: 10/29/2004

BEFORE: Chesterman M - ADCJ (Deputy President) APPLICATION: Claim for declaration of rights, obligations and liabilities under a lease - Claim for payment of money - Unconscionability MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 Cassa Commerciale Australia Ltd v Sofia & Ors, Unreported, Supreme Court of NSW, 16 October 1998 (BC9806862) CASES CITED: Hoser v Hartcher [1999] NSWSC 527 Micallef v ICI Operations Pty Limited [2001] NSWCA 274 Stollznow v Calvert [1980] 2 NSWLR 749 APPLICANT REPRESENTATION: J Chapman, barrister RESPONDENT D Hassan, solicitor ORDERS: 1. Application to strike out proceedings dismissed; 2. Costs of application reserved

Introduction 1 This is an application by the Respondent (hereafter 'Perpetual') for the Application that has been filed in these proceedings to be struck out for want of prosecution and for costs to be ordered against the three Applicants (hereafter referred to collectively as 'One 21'). Perpetual's application was initially filed under a separate number (045108), but should be treated as a preliminary application in file number 045015. The date of its filing was 29 September 2004. 2 The Application by One 21 includes an unconscionable conduct claim under the Retail Leases Act 1994 ('the RL Act'). In the hearing of such claims, the Tribunal must normally be constituted by a Member assigned to the Retail Leases Division who has the qualifications set out in clause 1(3)(a) of Schedule 2, Division 3B of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'), assisted by two other members, in an advisory capacity, who are qualified as set out in clauses 1(3)(b) and 1(3)(c) respectively. Clause 4 of Part 3B of the Schedule provides to this effect in sub-clauses (1) and (2). But under sub-clause (3)(b), the Tribunal may determine any part of proceedings without such assistance if in its opinion the relevant part 'concerns a question of law only'. 3 I am satisfied that this is the case with Perpetual's application, having heard no submission to the contrary. I will accordingly determine the application sitting alone. 4 The Application by One 21 is akin to a cross application. Proceedings in this matter were initially commenced by the filing of an Application by Perpetual, claiming relief under the RL Act against One 21 Pty Limited, Brian George Triming and Maria Gaffney (file number 035113). In the present Application, One 21 Pty Limited is an Applicant. The other two Applicants are companies (Gafftrim Pty Limited and Vanscott Pty Limited) owned respectively by Mr Trimming and Ms Gaffney. 5 The evidentiary basis for Perpetual's application to strike out these proceedings, put briefly, is that One 21 has been in breach of several directions made on different occasions by the Tribunal requiring it to file and serve evidence in the proceedings. 6 Mr Hassan, representing Perpetual, identified the following breaches by One 21 of Tribunal directions setting out timetables for the filing and service of evidence:- Directions on 26 February 2004 requiring One 21 to file and serve lay and expert evidence by 12 May 2004. Directions on 3 June 2004 requiring One 21 to file and serve lay evidence by 29 July 2004 and expert evidence by 23 September 2004. Directions on 29 July 2004 requiring One 21 to file and serve lay evidence by 20 August 2004 and expert evidence by 8 October 2004. 7 In each of these timetables, the directions applied to the filing of evidence in both the initial claim by Perpetual (file 035113) and the 'cross claim' filed in response by One 21 (file 045015). These two claims were directed to be treated as amalgamated. There were also directions for Perpetual to file and serve evidence, both lay and expert. It is significant that the timetables were compiled initially by the representatives of the parties and adopted as directions by the Tribunal. 8 It should be mentioned also that at a further directions hearing, on 8 September 2004, One 21 was directed to pursue expeditiously the prospect of mediation. At yet another directions hearing, on 23 September 2004, the Tribunal, having been informed that attempts at mediation had proved unsuccessful, formally declared under s 68(1) of the RL Act that mediation was unlikely to resolve the dispute. It further directed, amongst other things, that One 21 should file and serve remaining lay evidence on or before 5 October 2004. 9 An affidavit by Mr Triming, forming part of One 21's lay evidence in the amalgamated proceedings, was filed on 16 August 2004 and served on or about that date. At the hearing of this application on 8 October 2004, One 21 filed and served its remaining lay evidence, though not in proper form. I indicated that original and properly sworn versions of the affidavits filed were still required. 10 During the period since the directions of 26 February 2004, there has been a great deal of correspondence between the parties' solicitors dealing with disputed matters of procedure. There have been disagreements, for instance, as to whether summonses to produce have been properly answered. But except so far as appears below, I have not found it necessary to outline all this correspondence. The submissions by Perpetual 11 Mr Hassan submitted first that the Tribunal had power to make an order striking out an application for want of prosecution. For this proposition, he relied on ss 72 and 72AA of the RL Act and s 73 of the ADT Act. Ms Chapman did not contest this. In my opinion, the power does arise under the general provision in s 73 authorising the Tribunal, subject to the rules of natural justice, to determine its own procedure. 12 Mr Hassan argued that the delay occasioned to Perpetual's own claim for relief by One 21's continuing breaches of the timetables for filing its evidence has caused significant prejudice to Perpetual. He did not assert that there was any prejudice of a specific nature – for example, the likely loss of particular documentary records or the likely unavailability of particular witnesses – that might render the trial of this claim unfair. His argument was that on account of the possibility of witnesses' recollections fading or documents being lost or destroyed, delay of itself constituted tangible prejudice justifying an order striking out One 21's Application. 13 He submitted also that at no time had One 21 furnished a satisfactory explanation for the delay, either to the Tribunal or to Perpetual. He cited several authorities – for example, Stollznow v Calvert [1980] 2 NSWLR 749 at 251 – for the proposition that this was an important factor to be taken into account. 14 Mr Hassan relied on the judgment of Einstein J in Cassa Commerciale Australia Ltd v Sofia & Ors, Unreported, Supreme Court of NSW, 16 October 1998 (BC9806862) for the proposition, at p 8, that if a party in Perpetual's position failed to make a response – such as the filing of the present application – when delay of this nature occurred, its right to seek dismissal of the proceedings against it at a later stage would be put in jeopardy. 15 He relied also on Hoser v Hartcher [1999] NSWSC 527 for the propositions that in an application of this type (a) the ultimate question is whether justice demands dismissal of the action, having regard to the prejudice to the respective parties occasioned by making or not making an order; and (b) the discretion to strike out, which cannot depend on rigid formulae, must be exercised only in a clear case where it is manifestly warranted. The submissions by One 21 16 Ms Chapman drew my attention to a number of aspects of the directions made and the correspondence between the parties that provided explanation for One 21's delay in filing its evidence. These included the following matters. 17 First, in the directions of 26 February 2004, One 21 was initially directed to provide particulars of its claim by 12 March. It did so five days late. Perpetual then required further and better particulars, at some length. Following a response by One 21, Perpetual finally filed its amended notice of defence on 17 May 2004. One 21 could not have been expected to put any evidence until this occurred. 18 Furthermore, the directions of 26 February, made by consent, amalgamated the two claims. After the filing of Perpetual's defence in these proceedings, the next step was for Perpetual to file its lay evidence. It did not do so until 18 June 2004. 19 The delay thereafter, according to an affidavit filed by One 21's solicitor, was caused by counsel returning the brief for personal reasons. At the directions hearing on 29 July 2004, the solicitor attending believed mistakenly that this would not lead to any further significant delay and therefore assented to the direction that the lay evidence should be filed and served by 20 August 2004. 20 A further delay resulted from the fact that, as I have already indicated, mediation was attempted in the period between 8 and 23 September 2004. 21 Ms Chapman also pointed out that Perpetual persisted with the present application even though on 7 October 2004, the day before the hearing, One 21's solicitors indicated to its solicitors by fax that the remaining lay evidence would be filed and served on 8 October. This has occurred, subject to formal defects that I have noted. 22 Ms Chapman made further claims of breaches by Perpetual itself of directions for filing evidence. I do not think it necessary to set these out. 23 In written submissions filed for One 21, two cases were cited. Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 was put forward for the proposition that a court may at any time vary, alter or extend the time for compliance with procedural orders. The submissions also referred to Micallef v ICI Operations Pty Limited [2001] NSWCA 274, in which the Court of Appeal emphasised that, in the absence of clear evidence of prejudice leading to manifest injustice, an order striking out a claim for want of prosecution should not be made. The conclusions reached 24 In my judgment, this application by Perpetual must be dismissed. Except for the delay caused by One 21's change of counsel, every failure on its part to adhere to directions has been satisfactorily explained. In some instances, delay was caused by prior delay on Perpetual's part. No tangible prejudice, beyond the presumptive prejudice arising from delay per se, has been shown. The extent of delay for which the explanation might be considered less than fully satisfactory is a matter of weeks only. Furthermore, Perpetual was aware, on the day before the hearing that One 21's lay evidence would be filed and served on the day of the hearing. It nonetheless pressed on with this application. 25 A further consideration, relating directly to the overriding requirement of justice emphasised in Hoser v Hartcher, is that this Application by One 21 is made in response to the initial application by Perpetual. To strike it out would leave it with little to put forward by way of reply to Perpetual's claim. 26 For all these reasons, it cannot be said, to refer again to Hoser v Hartcher, that this is a clear case where an order striking out One 21's Application is manifestly warranted. 27 Both parties in this application claimed costs. With a view, however, to reducing the preliminary proceedings in this litigation – which have already been unduly protracted – I do not think it appropriate to invite argument at this stage as to whether the 'special circumstances' requirement in s 88 of the ADT Act has been satisfied. 28 Costs are reserved. The existing date for further directions, 16 December 2004, is maintained.