CITATION: Davis v Sydney Harbour Foreshore Authority (No 3) [2010] NSWADT 153 DIVISION: Retail Leases Division APPLICANT Evan Davis PARTIES: RESPONDENT Sydney Harbour Foreshore Authority FILE NUMBER: 075019 HEARING DATES: 29 January 2010 SUBMISSIONS CLOSED: 5 February 2010 DATE OF DECISION: 18 June 2010 BEFORE: Olsson E, SC - Deputy President CATCHWORDS: Disqualification for bias LEGISLATION CITED : Retail Leases Act 1994 Administrative Decisions Tribunal Act 1997 Rucom Pty Ltd and Anor v Multiplex andn Ors [2010] NSWADT 1 CASES CITED: Salon Today Pty Ltd v MMIR Pty Ltd [2009] NSWADT 164 Callow v Rupchev [2009] NSWCA 148 Kwan v Kang [2003] NSWCA 336. APPLICANT In person REPRESENTATION: RESPONDENT M Snedden, barrister ORDERS: 1.Application dismissed 2.Applicant to pay the Respondents costs of the substantive hearing and of the hearing as to bias and costs REASONS FOR DECISION 1 This matter has had a long history. The substantive proceedings were determined on 4 November 2009 (Davis v Sydney Harbour Foreshore Authority (No 2) [2009] NSWADT 276. 2 In the substantive application the Tribunal determined that the application would be dismissed and made an order as to costs, which was stayed for a period of 14 days to permit the parties to address the Tribunal on costs if they desired to do so. 3 Both parties made submissions and the matter was listed for hearing on the question of costs on 7 December 2009. Following an application by the applicant that date was vacated and the matter was re-listed for hearing on 29 January 2010. 4 On 27 January 2010 the applicant forwarded a letter to the Tribunal in which he identified 22 grounds from which I should disqualify myself from further hearing the matter. 5 On 29 January 2010 Mr Davis appeared for himself and Mr Snedden of counsel appeared for the respondent. Bias 6 Mr Davis advanced a number of reasons for which he said a fair minded person would conclude or reasonably suspect that I had been biased in the determinations made up until that date. Of the 22 reasons advanced in the correspondence and there was a considerable overlap but they can be summarised as follows: i)That I failed to provide decisions on all of the orders sought and failed to give any or adequate reasons for the decisions that were made. ii)Failing to provide a decision as quickly as practicable. iii)Failure to consider the evidence completely. iv)Rejecting the applicant's documentary and oral evidence. v)Not providing the applicant with the opportunity to be heard including an opportunity to be heard in answer to closing submissions and costs. vi)Failing to provide an explanation as to why the Tribunal was comprised of only one non-judicial member. vii)Failing to disclose whom the non-judicial member was. viii)Making adverse comments regarding the applicant's documents, particularized by reference inter alia to a comment made by the non-judicial member about the amount of paper generated in the case. 7 The respondent contended that the application was essentially a review of the Tribunal's decision and that it was in inappropriate vehicle by which to do so. Moreover, Mr Sneddon contended that a reasonably fair minded person would not conclude that the Tribunal – either during the hearing or in its findings – demonstrated actual or apprehended bias. 8 It is inappropriate to review the factual and credit findings made by the Tribunal in the present application. It would, in effect, mean that the Tribunal was conducting an appellate review of its own decision. 9 The applicant was asked to identify the grounds upon which the Tribunal demonstrated real or a reasonable apprehension of bias; that is, instances (if they existed) where the Tribunal could be seen by a fair minded person to be not capable of bringing a fair and impartial mind to the matters for determination. In answer, the applicant said that the Tribunal did not make findings with respect to every fact and matter raised in the initiating process. That may or may not be so; it is not incumbent upon a decision maker to address every fact in a matter as long as the relevant facts, which go to the essence of the case in hand, are identified and addressed. 10 The applicant further contended that the non-judicial member asked questions of witnesses and made observations during the hearing. That is true: he did. However, the authorities are clear that non-judicial members have an adjunct role in proceedings and do not form part of the fact finding and decision making process. Moreover, his comments and questions, upon review, do not appear to be imbued with any character which could be described as demonstrative of bias. I do not understand that it was suggested that I was influenced or persuaded by Mr Fagg's questions or comments in any event and therefore I make no further observations about this complaint. 11 The applicant also complains that inadequate reasons have been given for the decision and that it was not delivered in a timely fashion. It seems to me that these are not matters I can address in the present application: it is more appropriate for others to review. 12 To the extent that the applicant complains that he has not been given reasons for the proposed costs order or that he has not had the opportunity to be heard, I say no more than that I expressly gave both parties the opportunity to be heard on the question of costs, both parties have made submissions both in writing and orally. The fact that a costs order was made at the conclusion of the hearing but stayed for fourteen days so that the parties could make submissions should not be taken to have been a biased view by the Tribunal but reflective of the result and the conduct of the proceedings viewed on an impartial basis: the applicant did not succeed on any of his arguments in a commercial case where both parties were engaged in trade and commerce. 13 Having reviewed the extensive directions that have been made in this case (by a number of different Tribunal members) as to the filing and serving of evidence and submissions, I am satisfied that the applicant has been given a full opportunity to be heard not only on the substantive matters but also as to costs. I also note that at the conclusion of the hearing on 29 January 2010, the applicant was afforded the opportunity of replying to the affidavit of Ms Hudap sworn on 28 January 2010 on the question of costs. 14 The fact that adverse credit findings are made does not demonstrate judicial bias towards that witness. Rather, it involves the necessary and proper exercise of the judicial function: Callow v Rupchev [2009] NSWCA 148 at paragraph 26 and more generally, Kwan v Kang [2003] NSWCA 336. 15 I do not consider that a case has been made out for me to disqualify myself for bias, either actual or apprehended and I dismiss that application. Costs 16 As to the question of costs, the award of costs in the Tribunal is governed by s.88 of the Administrative Decisions Tribunal Act 1997 ("the Act"). Relevantly it provides: (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal , or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties , including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. 17 The current version of s.88 in which the criterion of 'fairness' stated in subsection (1A) has replaced a rule that in the absence of 'special circumstances' no costs might be awarded, became operative on 1 January 2009. 18 One significant effect of the amendment to s.88 is that the notion of 'fairness' is to broaden the basis upon which costs might be awarded, particularly in a jurisdiction which is commercial in nature. In Salon Today Pty Ltd v MMIR Pty Ltd [2009] NSWADT 71, the Tribunal said: "What the Parliament has done…is to recognise that there is a need for this Tribunal to be more flexible and widen the scope of a litigant's entitlements to costs. This is a concept generally that is now accepted in this Division [Retail Leases Division]…." (paragraph [72]) 19 With respect to the relative strengths of the claim made by the applicant, at the core of the Tribunal's decision was the compelling written evidence that the respondent would not be renewing the lease when it came to an end and that a holding over of the lease until September 2006 was offered and accepted by the applicant. That is not to say that it was a hopeless case, however. 20 The current proceedings are commercial in nature, arising from the provisions of the Retail Leases Act 1994. The issues were commercial issues between a lessor and lessee, both of whom were in business in a retail lease environment. 21 The Tribunal considered the nature of the Retail Leases Division in the context of costs in Rucom Pty Ltd and Anor v Multiplex and Ors [2010] NSWADT 1. Having reviewed the authorities, Judicial Member Molloy said at paragraph 37: "So, it is plain to me, that not only is this Division a commercial division dealing with commercial issues between lessors and lessees in a retail lease environment, but, and in addition, proceedings should only be commenced in this Tribunal after very careful consideration of the merits of the case: see Trust Company of Australia Ltd v Craig [2005] NSWADT 65 at [44]. After all, commencing proceedings without such consideration inevitably results in considerable expense being incurred by the other party and one might not unreasonably ask: "why should the other party have to bear those expenses when the proceedings should not have been commenced in the first place?" 22 I do not think it can be said that the applicant's case was lacking in any merit and notwithstanding the commercial nature of the proceedings and the fact that the parties were both engaged in trade and commerce, I would have been reluctant to disturb the prima facie position of s.88 with regard to costs but for other factors to which the Tribunal is entitled to have regard and which are summarized in the affidavit of Ms Hudap. 23 The applicant commenced the proceedings on 1 February 2007. They were listed for directions on 1 March 2007 when a timetable was made for the filing and service of evidence. The applicant failed to comply with the timetable. The respondent filed and served its tender bundle. 24 On 19 April 2007, the matter was listed for directions and a further timetable was set. Three days before his evidence was due, the applicant sought an extension of time and the matter was relisted for directions on 24 May. The applicant did not appear. 25 A further timetable was set and the applicant partially complied with it, filing one affidavit (his own) on 4 June. The respondent complied with its obligations under the timetable. 26 Three days after the time for filing and serving a reply, the applicant sought an extension of time which was granted. Before the reply evidence was due, the applicant retained solicitors who asked for a further extension of time. It was granted, the revised date for reply evidence becoming 27 August 2007. 27 At a directions hearing on 30 August, the applicant was granted further time to reply, until 25 September. 28 A dispute of sorts then occurred regarding a request by the applicant for particulars and in respect of a summons for production of documents. 29 Tribunal Member Fox heard and determined an application by the respondent to strike out certain paragraphs of the applicant's summons. The applicant was directed to serve his reply evidence by 7 February 2008. 30 At a directions hearing on 7 February 2008, the applicant sought an extension of time to consider appealing the decision of Member Fox. An appeal was brought but was settled by the parties on 5 June 2008. 31 On 10 July 2008, after the production by the respondent of certain documents which had been the subject of orders arising from the settled appeal, the matter was listed for directions and the applicant was given until 31 July 2008 to file further evidence in chief. In fact the evidence was not filed or served until 24 October. 32 Even the hearing of the present application was adjourned to meet the convenience of the applicant from December 2009 until 29 January 2010. 33 Putting aside the issue of the summons to produce documents and the request for particulars, the applicant's conduct of the matter in repeatedly failing to meet timetables, asking for or causing adjournments has been a principal contributor of delay and inconvenience and no doubt additional cost to the respondent. 34 Taking all of those factors into consideration, the Tribunal considers that it is fair to depart from the prima facie position provided by s.88 and order that the applicant pay the respondent's costs on the ordinary basis as agreed or assessed. 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.