Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70 Hearing dates: 7/8/2014, 12/9/2014. Decision date: 23 October 2014 Jurisdiction: Appeal Panel Before: Wright J, President S Higgins, Principal Member P Wass SC, Senior Member Decision: The application for an extension of time in which to appeal is dismissed. The appeal is dismissed. Catchwords: APPEAL - Civil and Administrative Tribunal (NSW) - application for extension of time in which to appeal - exercise of discretion - appeal dismissed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) NCAT Interim Rules 2014 (NSW) Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 Gallo v Dawson [1990] HCA 30; 93 ALR 479 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Nanschild v Pratt [2011] NSWCA 85 Opera Australia Ltd v Carr [1999] NSWADTAP 6 Roskott v Commonwealth Bank of Australia [2014] NSWCA 341 Habib v State of NSW (NSW Police Force) [2013] NSWADT 66 Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: Mamdouh Habib (Appellant) State of New South Wales (NSW Police Force) (Respondent) File Number(s): AP 14/46350 (AP 14/0073) Decision under appeal Jurisdiction: 150001 Date of Decision: 2014-03-25 00:00:00 Before: Deputy President Hennessy - 19 February 2014 Senior Member Scahill - 25 March 2014 File Number(s): 131001 reasons for decision Introduction 1In November 2011, the appellant made a complaint to the Anti-Discrimination Board (ADB) that the New South Wales Police Force had on a number of occasions racially discriminated against him. His complaint was declined by the ADB, in December 2011, as lacking in substance. On 28 March 2013, the Administrative Decisions Tribunal (ADT) gave leave for the applicant's complaint to become the subject of proceedings in the tribunal. In those proceedings during 2013 and early 2014, the appellant failed to comply with directions for the filing and service of documents relating to his case. At a case conference on 19 February 2014 at which his non-compliance with directions was due to be considered, neither the appellant nor any legal representative appeared. As a consequence, on that day the proceedings were dismissed for failure to appear, under s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (the Act). The appellant applied to reinstate the proceedings under s 55(2) of the Act. That application was heard and refused on 25 March 2014. 2The appellant has sought leave to appeal, out of time, from both the 19 February and 25 March 2014 decisions. He conceded that he required an extension of time. Having heard argument not only on the application for an extension of time but also on whether leave to appeal should be granted and, if leave were granted, on the appeal itself, the Appeal Panel has determined that it would not be appropriate to grant an extension of time in which to lodge the appeal in regard to both decisions. The Appeal Panel's reasons are set out below and include in particular that even if an extension of time were granted the application for leave to appeal and the appeal itself have little if any prospect of success. Material Before the Appeal Panel 3There being no formal appeal books, it is useful at the outset to identify the material which was before the Appeal Panel on this appeal. 4The appellant put before the Appeal Panel the following material: (1)Paragraphs 13, 26 to 28 and 31 of the affidavit of Mamdouh Habib dated 20 April 2014 which were admitted subject to relevance. The other paragraphs of that affidavit were not pressed. (2)Paragraphs 4 and 6 of the affidavit of Mamdouh Habib dated 13 June 2014 which were admitted on the limited basis of indicating how the appellant felt he had been unjustly treated. The other paragraphs of that affidavit were not pressed. (3)A copy of the letter from Ms Burrows of Auscorp Solicitors to "ADT The Registrar" dated 19 February 2014 without attachments. (4)"Submissions for the appellant" originally received by the Tribunal on 13 June 2014; and (5)"Amended submissions for the appellant" dated 25 August 2014. 5The Respondent put before the Appeal Panel the following material: (1)The affidavit of Felicity Howell received on 5 February 2014 together with its annexures; (2)The affidavit of Felicity Howell affirmed on 27 June 2014 together with its annexures; (3)Submissions dated 27 June 2014; and (4)Further submissions dated 8 September 2014. 6None of the witnesses was cross examined and neither party submitted that the Appeal Panel should reject any of the evidence contained in the affidavits before the Tribunal, bearing in mind that paragraphs 4 and 6 of the affidavit of Mamdouh Habib dated 13 June 2014 were evidence indicating only how the appellant felt he had been unjustly treated. In the circumstances, the Appeal Panel accepts all of this evidence. Procedural history of the proceedings 7As noted above, on 28 March 2013 the ADT granted leave for the appellant's complaint to be the subject of proceedings in that tribunal: Habib v State of NSW (NSW Police Force) [2013] NSWADT 66. Those reasons for decision indicate that the documents relating to the appellant's complaint did not identify the precise nature of his case or limit it to incidents which the Tribunal could consider. At [4] of the decision, the Deputy President of the ADT, as her Honour then was, observed that the complaint included: (1)incidents that were not within the period of the complaint and thus could not be considered; (2)other alleged incidents that did not contain sufficient information to enable any assessment to be made of their merits; and (3)5 incidents which were characterised as being "described in sufficient detail". These 5 incidents were described at [5] to [15]. 8The ADT's conclusion that leave should be granted did not involve a finding that the appellant's case had any substantial merit. Her Honour stated at [33] that she accepted that the appellant's complaint relied upon an assumption that whatever was recorded on the Police Data Base had triggered the unfavourable treatment by police and then went on to say: As neither Mr Habib nor the Tribunal know what is recorded, it is premature to conclude that race is unlikely to be one of the reasons for the treatment. In all the circumstances, it is fair and just for leave to be granted for the complaint to proceed to hearing. 9Leave having been granted for the complaint to be the subject of proceedings in the tribunal, a case conference was held on 17 April 2013 and the appellant attended in person. The appellant was directed to file and serve points of claim, all witness statements and any statement of loss and damage by 17 July 2013. 10The appellant did file a bundle of documents on 17 July 2013 but these did not include points of claim or a statement of loss and damage. 11At the respondent's request, a further case conference was conducted on 31 July 2013. A new timetable was set requiring the appellant to file and serve points of claim and a statement of loss and damage by 3 October 2013. 12Some days before 3 October 2013, when the appellant was due to file his points of claim and other documents, Ms Burrows, a solicitor with Auscorp Solicitors, contacted the solicitors for the respondent and informed them that she was now acting for the appellant and was seeking further time to file and serve his evidence. Prior to this the appellant had been unrepresented. 13The appellant did not serve his evidence, points of claim or statement of loss and damage on or before 3 October 2013. 14As a result of correspondence and discussion between the parties in October 2013 an agreement was reached that the appellant would file and serve points of claim, his evidence and a statement of loss and damage by 8 November 2013. 15No evidence, points of claim or statement of loss and damage was filed or served by the appellant by 8 November 2013. 16On 27 November 2013, the matter was listed again for a case conference in the ADT before Judicial Member Scahill (as she then was). At that case conference, the appellant was directed to file and serve his evidence, points of claim and statement of loss and damage by 28 January 2014. The Judicial Member informed Ms Burrows, who appeared for the appellant on that occasion, that if the appellant did not file his evidence, points of claim or statement of loss or damage by 28 January 2014 he should be mindful of s 73(5) of the Administrative Decisions Tribunal Act 1997 (NSW) (the ADT Act) in relation to a failure to progress the matter. Section 73(5) of the ADT Act included a power to dismiss proceedings summarily, including for want of prosecution. 17On 1 January 2014, the Civil and Administrative Tribunal of New South Wales was established and on its establishment the ADT was abolished: see s 7 and cl 3 of Schedule 1 of the Act. By operation of cl 7 of Schedule 1 to the Act, these proceedings, being pending but unheard proceedings, were taken to have been duly commenced in NCAT and could be heard and determined by NCAT. 18The Appellant did not file or serve his evidence, points of claim or a statement of loss and damage by 28 January 2014. 19On 31 January 2014 Ms Howell wrote to Ms Burrows to put her on notice that if the appellant's evidence was not received by 31 January 2014, the respondent intended making an application to have the proceedings dismissed for want of prosecution. 20On 3 February 2014, Ms Burrows delivered a bundle of documents to the solicitors for the respondent. This bundle did not contain any further evidence from the appellant, points of claim or a statement of loss and damage but consisted of documents that had already been provided in 2013 to the respondent and the Tribunal and some documents that related to an incident that did not form part of the appellant's complaint and was outside the period of the complaint. 21On 5 February 2014 the matter again came before Senior Member Scahill. Ms Burrows appeared for the appellant and Ms Raper of counsel appeared for the respondent. Ms Burrows presented, among other things, a two page document headed "claimant's points of claim". During the case conference, Ms Burrows was reminded that at the last case conference on 27 November 2013 she had been told that if the appellant did not comply with the timetable the respondent would be at liberty to move to have the proceedings dismissed for want of prosecution. As foreshadowed, the respondent applied to have the proceedings dismissed under s 55(1)(d) of the Act for want of prosecution. After receiving evidence and submissions, the Senior Member declined to grant the application but made new directions and relisted the matter before Deputy President Hennessy on 19 February 2014. 22The new directions required the appellant to file and serve by close of business on 18 February 2014 points of claim in proper form, an affidavit supporting the appellant's case and a statement of loss and damage. The directions included that if the directions were not complied with it was open for Deputy President Hennessy to strike out the proceedings on 19 February 2014. 23Notwithstanding the warning that the proceedings might be dismissed if the directions were not complied with, the appellant did not comply with the directions made on 5 February 2014. No explanation for that failure was given. Case Conference on 19 February 2014 24On 19 February 2014, at 11 am when the matter was listed before the Deputy President, there was no appearance by the appellant or by his solicitor, Ms Burrows. Ms Raper appeared for the respondent. 25The Deputy President attempted to contact Ms Burrows directly on the mobile telephone number shown as the contact number for Ms Burrows on the Auscorp Solicitors letterhead but this was unsuccessful as the number was disconnected. The Deputy President then telephoned the telephone number for reception at Ms Burrow's office (as set out on the Auscorp Solicitors letterhead). Her Honour spoke to a person who identified herself as Christine and a director of Auscorp Solicitors. The Deputy President informed Christine that she was calling from the Tribunal and Ms Burrows had a matter listed for a case conference at 11 am and she was not there. Christine indicated she would try and get a message to Ms Burrows. The Deputy President also attempted to contact Ms Burrows using a number from the Tribunal file but there was no response. 26The Deputy President then adjourned for fifteen minutes so that the appellant or his solicitor could make contact with the Tribunal. 27After 15 minutes, no contact had been made with the Tribunal by the appellant or anyone else on his behalf. The Deputy President then dismissed the proceedings under s 55(1)(c) for failure to appear. At the same time the Deputy President made an order for the appellant to pay the respondent's costs of preparation and attendance on 19 February 2014, pursuant to s 60(3)(f) of the Act for failing to comply with the duty imposed by s 36(3) and pursuant to s 60(3)(f) for failing to inform the parties or the Tribunal of the intention not to file material by 18 February 2014 and not appearing on 19 February. The Reinstatement Application 28Ms Burrows sought to have the proceedings reinstated under s 55(2) of the Act by a letter dated 19 February 2014. 29By letter dated 26 February 2014 and sent by email to Ms Burrows, Ms Howell informed Ms Burrows that the respondent's costs "of preparation and attendance on 19 February 2014" were $1,788.50 and asked when payment might be expected. These costs had not been paid by 25 March 2014. 30The reinstatement application was listed for hearing on 25 March 2014 before Senior Member Scahill. Reinstatement Hearing on 25 March 2014 31At the hearing of the reinstatement application on 25 March 2014 Ms Burrows appeared for the appellant and Ms Raper appeared for the respondent. 32The material Ms Burrows put before the Tribunal on the appellant's application for reinstatement was a copy of her letter (sometimes described as a submission) of 19 February 2014. It was also accepted by the respondent and the Tribunal that a document on Ms Burrows' computer showed she had tickets for flights for herself and her two children from Sydney to Brisbane on 18 February booked at 7.18 pm and departing at 9.30 pm. She also relied upon the ADT's decision of 5 March 2013 as regards the merits of the appellant's case. She did not rely on any affidavit material or any statement from herself or from the appellant. 33The respondent put before the Tribunal a bundle of correspondence between the parties during the period of February and March 2014. This material was also before the Appeal Panel. 34The respondent objected to the appellant's reliance on the 19 February 2014 letter as evidence as to the truth of its contents and also objected to evidence, which were not verified on oath or by affirmation and upon which Ms Burrows could not be cross examined, being given by way of submissions by Ms Burrows from the bar table. 35Senior Member Scahill dealt with this by stating that she proposed to hear the submissions from the bar table as to what the circumstances were which led to Ms Burrows not being there on 19 February and then Ms Raper would be given the opportunity to make submissions as to the weight that should be given to what Ms Burrows had to say. 36A transcript of the proceedings on 25 March 2014 was before the Appeal Panel. The transcription may not be entirely accurate but neither party suggested that it did not reflect the substance of what occurred. Ms Burrows' submissions included the following: The night before had a very urgent emotional personal drama that I had to leave Sydney urgently. It was of such a nature - sorry, it was of such nature that I had completely forgotten about all my commitments, I know that it is not excuse and in such circumstances what I'm relying upon your discretion as to accept that. In regards to proper form, as to putting in an application to get the decision set aside, I contacted the registry and this is the form as to what they told me was appropriate to send in a letter with the file number with the circumstances as to why I attached the airline ticket to show that, if there was one page missing on the back, I don't know what that page might have been, it might just have been the conditions or something that I didn't think was important to attach. But at this stage, I'm asking for your discretion to have this go ahead because Mr Habib has now just been granted access to three folders of material to submit as evidence, we have affidavit evidence of some of the witnesses but not all of them, and also a forensic psychiatrist has just completed a report on him which was finished yesterday which is ready, and at this stage if you do grant leave to have the proceedings go ahead, we can serve all this tomorrow, I have this right here. What I've written in the letter in regards to my circumstances I didn't go into more detail, if you require me to I can, but it is very personal. 37The letter of 19 February 2014 contained the following: My non-appearance was due to an urgent and serious personal emergency that required my immediate departure from Sydney late last night to arrive Brisbane airport at 11pm in regards to serious concerns for the welfare of my 2 year-old child who was located in the Gold Coast. It relates to an incident that I had to contact police some weeks ago. I was quite distressed and in the circumstances it caused me to muddle my commitments for my client Mr Mamdouh Habib before Ms Hennessy. My ticket was booked last night at 7.16pm to depart Sydney at 9.30pm. I have attached the ticket purchased. My two young children had to come with me and I had to pull them from school today. I don't have the police number at present and I will provide that. At 10.14am this morning I had a missed call from my collegue [sic] at Auscorp Solicitors and shortly after I called her back and she informed me that Ms Hennessy had tried to contact me. I immediately tried to call back numerous times non-stop the phone number provided was engaged. I was hoping to make representations on the telephone. I called the main reception number and I was informed that Ms Hennessy was in another matter and could not take my call. 38Senior Member Scahill delivered ex tempore reasons for decision. Neither party requested a written statement of reasons pursuant to s 62(2) of the Act. The ex tempore reasons were as follows: Alright, I propose to give my decision now. Looking at the purposes of section 55(2) and the requirements, they are that the Tribunal may reinstate proceedings that have been dismissed under sub section 1C [sic], if the Tribunal considers that there is reasonable explanation for that failure. These proceedings arise from the dismissal on the 19th of February, by Deputy President Hennessy of Mr Habib's complaint. At that time, they were dismissed under section 55(1C)[sic] for the failure of Mr Habib to appear, also at that time, a Direction was made that the Applicant was to pay the Respondent's costs of preparation and attendance on the 19th of February. Ms Burrows has put before the Tribunal today, the fact that Mr Habib is in Egypt, and she has made that submission form the bar table and was as at the 19th of February and that she was the solicitor on the record at that time, and instructed to appear for Mr Habib, she has indicated again from the bar table, that she unexpectedly had to travel to Queensland on the night before the 19th of February. I do know that Ms Burrows was aware of concerns to that point, with the failure of the Applicant to provide materials to the Tribunal and the Respondent. Even if I accept, and as I'll indicate that I do accept, that Ms Burrows was required to travel to Brisbane, there is an obligation to ensure that she is acting on instructions from her client, and it's a matter that she should have sought instructions from her client about, and either had an agent appear on the day or take some other steps. In the context of the matter so far, I do not consider that the material before me, as untested and untestable as it is, constitutes a reasonable explanation for the failure of the Appellant or his representative to appear on the 19th of February. I also understand that the Direction made for the Applicant to pay the Respondent's costs on that day has not been satisfied, a further indicator of the failure of the Applicant and his representative to conduct themselves according to section 33 [sic 36(3)] of the Act. That is my decision and those are the reasons for my decision, I would not reinstate the proceedings. 39The orders made on 25 March 2014 were: (1)Application to reinstate dismissed. (2)No order as to costs. Notice of Appeal 40On 23 April 2014, the appellant lodged a notice of appeal form. There are a number of issues that arise out of the form of the notice of appeal. 41Before considering those issues, it is useful to appreciate that although the form is called a notice of appeal it does not follow that the party lodging the form is instituting an appeal as of right. The Tribunal's notice of appeal form allows a party seeking to appeal to complete just one form whether the party is asking for an extension of time in which to appeal, asking for leave to appeal, seeking a stay of the orders appealed from or simply appealing as of right from an internally appealable decision. This course has been adopted in the Tribunal having regard to the requirement that the Tribunal act with as little formality as the circumstances of the case permit and without regard to technicalities or legal forms (s 38(4) of the Act) and the requirement that the Tribunal's practice and procedures should be implemented so as to facilitate the resolution of issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings (s 36(4) of the Act). Having one multipurpose form has the benefit that a person seeking to appeal from an internally appealable decision of the Tribunal only has to obtain and complete one form so that there is greatly reduced scope for procedural confusion and technical mistakes. Decisions Appealed From 42On the first page of the notice of appeal (item 2) the decision being appealed is identified as the decision made on 25 March 2014, that is, the dismissal of the application to reinstate the proceedings. On page 2 (item 11A), however, the orders challenged on appeal are identified as: Proceedings dismissed The Applicant to pay the respondents costs 19 February 2014 These orders were made on 19 February 2014, not on 25 March 2014. Notwithstanding the confusion and in the interests of ensuring the just, quick and cheap resolution of the real issue in the proceedings, the Appeal Panel proceeded on the basis that the appellant was seeking to appeal against both the orders made on 19 February 2014 and those made on 25 March 2014. The parties were content for the Panel to adopt this course. Leave to Appeal 43On page 3 (item 12A) of the notice of appeal form, the appellant did not tick one or other box to indicate whether or not he was seeking leave to appeal, but he did write: Grant leave to appeal from orders: Proceedings dismissed The Applicant to pay the respondents costs 19 February 2014 44Thus it appears that he is seeking leave to appeal at least from the orders made on 19 February 2014. 45The requirement for leave to appeal arises under s 80 of the Act, which relevantly provides: (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance-with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. ... 46Under s 4(1) of the Act, "interlocutory decision" is relevantly defined as including a decision concerning "the summary dismissal of proceedings" or "any other interlocutory issue before the Tribunal". Section 4(1) also defines "ancillary decision" as including "a decision concerning the awarding of costs in proceedings". 47The decision made on 19 February 2014 dismissing the proceedings under s 55(1)(c) of the Act was one which falls within the description "the summary dismissal of proceedings" and thus would be an interlocutory decision. Accordingly, leave is required to appeal from this decision whether on a question of law or any other ground. 48The costs decision made on 19 February 2014 is properly characterised as an ancillary decision as it concerned the awarding of costs in proceedings. Consequently, leave to appeal would be required if the appeal from that decision is based on any ground other than a question of law. The grounds of appeal, which are set out below, do not refer specifically to the costs decision and do not raise any question of law in relation to the costs order. The appellant's submissions in relation to the costs order which are also set out below do not appear to raise a question of law. Thus, the appellant also requires leave to appeal in relation to that order. 49As to the decision made on 25 March 2014 to refuse to reinstate the proceedings under s 55(2), this decision is analogous to an order refusing to set aside a default judgment. The High Court in Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 248 held that an order refusing to set aside a default judgment did not as a matter of law finally dispose of the rights of the parties, for it was open to the disappointed defendant to apply again to have the judgment set aside. Thus, it was not a final but an interlocutory judgment. It was held to be irrelevant that in a practical sense that a second application to set aside might be doomed to fail. The determination of whether a decision is final or interlocutory turns on the legal rather than the practical effect of the decision. On the basis that it was possible for the appellant in the present case to have applied again to have the proceedings reinstated, even if such an application was in all likelihood doomed to fail, the Appeal Panel concludes that the decision to refuse reinstatement made on 25 March 2014 was an interlocutory decision. Accordingly, leave to appeal is required in respect of that decision. 50The appellant did not contend that he could proceed without leave in any case. Extension of Time 51On page 5 (item 13) of the notice of appeal form, the appellant indicated that he was seeking an extension of time in which to appeal. The explanation given was: "Decision on 19 February 2014 for Order 3 because this decision was to be reviewed 23 [sic] March 2014 to which this decision is being appealed". 52At the hearing, Mr Fozzard of counsel, who appeared for the appellant, conceded that an extension of time in which to lodge an appeal was required in respect of both the decision on 19 February 2014 and the decision on 25 March 2014. The Appeal Panel considers that this concession was correctly made. 53The appeal is an internal appeal as defined in s 80 of the Act. The time periods in which appeals must be filed are set out in rule 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules). In particular, rule 25(4)(c) applies in the present case and provides that unless the Tribunal grants an extension of time under s 41 of the Act, an internal appeal must be lodged within 28 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the latter). 54The appellant's solicitor had notice of the decision made on 19 February 2014 on that day. This can be inferred from the fact that she applied for reinstatement by a letter sent to the Tribunal on that day. The Notice of Appeal was filed on 23 April 2014, namely 64 days after 19 February 2014 and thus was out of time. The appellant's solicitor was notified of and given reasons for the decision on 25 March 2014 on that day as she was present in the Tribunal in that matter when the decision was announced and the oral reasons were given. The notice of appeal was lodged on 23 April 2014, 29 days after the appellant, by his solicitor, was notified of the decision. It was thus one day out of time and an extension of time under s 41 of the Act is required. Summary of the effect of the notice of appeal 55In summary, the effect of the notice of appeal and the appellant's counsel's concessions was that: (1)The appellant was seeking to appeal both the decisions of 19 February and 25 March 2014; (2)The appellant was applying for leave to appeal in respect of each decision; and (3)The appellant was applying for an extension of time in which to lodge the appeal in respect of each decision. Grounds of Appeal 56The appellant's grounds of appeal, as set out on page 2 (item 11B) of the notice of appeal, were as follows (reordered according to the numbering of the appellant): 1. The tribunal member erred in finding that the Applicant/Appellant did not comply to timetable in filing any material. Materials were filed on 3 and 4 February, and if considered deficient then that should be a matter upon final determination of the case. 2. The tribunal failed to consider the difficulty and onerous situation of proceedings against NSW Police in that witnesses do not wish to be involved and delays in finding witnesses willing to be witnesses in proceedings. 3. The tribunal failed to consider that all materials were ready to be served including doctor's report and further affidavits on 25 March '14. 4. Tribunal did not accept submissions of difficulty of the appellant in complying to timetable as was self-represented or when he was represented was overseas attending to Egyptian legal proceedings. 5. Decision not fair or equitable in view of the nature of proceedings. Reply to Appeal 57On about 16 May 2014 the respondent lodged a reply to appeal pursuant to rule 26 of the Rules. 58In the reply to appeal, the respondent opposed any: (1)extension of time to appeal any decision out of time; (2)application for leave to appeal; (3)application for the appellant to rely on fresh evidence; and (4)substantive appeal. 59In support of its position, the respondent relied on the appellant's non-compliance with directions of the Tribunal, the failure to give any adequate explanation for his non-appearance or his delay and the absence of any error by the Tribunal, among other things. Hearing of the Appeal on 7 August 2014 and 12 September 2014 60The matter was originally listed for hearing on 7 August 2014 and the matter commenced with Ms Burrows appearing by telephone, as she said she was not well enough to appear in person. It became apparent that it would be inappropriate to attempt to proceed further on that occasion and the hearing was stood over to 12 September 2014. On 12 September 2014, Mr Fozzard appeared for the appellant and Ms Raper for the respondent. 61Before considering the applications for an extension of time and leave to appeal and the appeal itself, it is appropriate to clarify the legislation applicable in the proceedings in the Tribunal below. Applicable Legislation 62Deputy President Hennessy and Senior Member Scahill both proceeded on the basis that the applicable provision was s 55 of the Act and not s 73(5)(g) and (h) of the Administrative Decisions Tribunal Act 1997 (the ADT Act). As has been noted above, these proceedings became, after 1 January 2014, "unheard proceedings" within the meaning of cll 6 and 7 of Schedule 1 to the Act. In these circumstances, cl 7(3)(b) applied so that "the provisions of an Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act [namely the Civil and Administrative Tribunal Act 2013] and the relevant amending Acts not been enacted continue to apply." 63Accordingly, the Tribunal below could have proceeded under the ADT Act. Further, it might be argued that the ADT Act continued to apply to the exclusion of the Act in the present proceedings. 64As it happens, the terms of s 55 of the Act and s 73(5)(g) and (h) of the ADT Act are in almost identical terms and there is no difference in substance between them. When the matter was raised with the parties, both parties were prepared to proceed on the basis that whether the Tribunal below on 19 February and 25 March 2014 applied the relevant provisions of the Act or the ADT Act did not have any implication for this appeal. 65Further, it was submitted by the respondent that the transitional provisions in cl 7(3) should be construed as providing additional or alternative powers to the Tribunal in "unheard proceedings" so that the Tribunal below was permitted to apply s 55 of the Act or s 73(5)(g) and (h) of the ADT Act. Reliance upon s 55 of Act was not precluded as there was no clear exclusion of its application in cl 7(3) of Schedule 1 to the Act. 66A similar issue arises in relation to whether costs at first instance were to be determined under s 60 of the Act or s 88 of the ADT Act. Whilst the terms of s 60 are similar to those of s 88 there are certain differences. In the circumstances, any differences are probably not of substance in the present case. 67As the appellant did not raise these issues as grounds of appeal or seek to argue that the appeal should be allowed on this basis, the Appeal Panel believes that the better way to proceed is to accept, for the purposes of determining these proceedings, that cl 7(3)(b) provides additional and alternative powers to the Tribunal when dealing with "unheard proceedings" and does not exclude the application of the Act to those proceedings. It should be noted, however, that this issue was not the subject of full argument and the Appeal Panel should not be taken to have decided this issue on a definitive basis. Application for extension of time in which to lodge appeal 68The notice of appeal form (in item 13 on page 5) required the appellant to give an explanation of the basis upon which the extension of time was sought. The appellant provided the explanation that it was "because this decision [of 19 February] was to be reviewed" on the reinstatement application. However, he provided no explanation in that form as to why the appeal against the 25 March 2014 decision was lodged out of time. Nor was any explanation given of why the notice of appeal in respect of the 19 February or 25 March decision was filed out of time either in the appellant's written submissions or by way of any evidence or other material submitted by the appellant. The lack of an explanation was raised in the respondent's written submissions dated 27 June 2014. 69The absence of any explanation was also raised by the Appeal Panel with counsel for the appellant during the hearing on 12 September 2014. Counsel was not able to provide any such explanation. No criticism is made of counsel, who had not appeared in the matter prior to 12 September 2014 and who had not prepared the appellant's written submissions or the notice of appeal. 70Nonetheless, the Appeal Panel is satisfied that the appellant has had ample opportunity to explain why the appeal was not lodged within time and to raise any relevant considerations as to why an extension of time should be granted. Extension of Time to Appeal - Principles 71Section 41 of the Act provides: (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired 72The discretionary power to grant an extension of time under s 41 of the Act is unfettered but it must be exercised judicially and having regard, among other things, to s 36 of the Act and the need "to facilitate the just, quick and cheap resolution of the real issue in the proceedings". 73The discretion to extend time is given for the sole purpose of enabling the Tribunal, in this case the Appeal Panel, to do justice between the parties. In order to determine whether the rules will work an injustice, it is appropriate to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time. It is also appropriate to consider the prospects of the appellant succeeding in any application for leave to appeal and on the appeal itself. In order to justify the Appeal Panel extending the time, there must be some material upon which the Appeal Panel can exercise its discretion. See Nanschild v Pratt [2011] NSWCA 85 at [38]; Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2] and the authorities referred to there; and also Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16] and Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. 74Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings and to achieve finality in litigation. For these reasons, time limits should generally be strictly enforced unless the interests of justice require that an extension be granted. 75As set out in Jackson v Land and Housing Corporation [2014] NSWCATAP 22 at [22], the relevant considerations in deciding whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an appellant upon proof that strict compliance with the rules will work an injustice upon the Appellant ­ Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the Respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision ­ Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success ­ Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The Appellant's prospects of success, that is usually whether the appellant has a fairly arguable case; and (d) The extent of any prejudice suffered by the Respondent (to the appeal): - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the Appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable ­ Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] ­ [59]. Extension of Time to Appeal ­ Consideration Length of Delay 76In this matter, the length of delay in respect of the 25 March 2014 decision is 29 days, only one day out of time. The length of delay in respect of the 19 February 2014 decision is 64 days, that is 36 days out of time. The fact that the notice of appeal was lodged only one day outside the time period for the 25 March decision would normally weigh significantly in favour of granting an extension. The longer delay in respect of the 19 February decision tends somewhat against an extension being granted. Explanation for Delay 77As to the explanation for the delay concerning the 19 February decision, as noted above, it was contended that the appellant did not exercise his right of appeal as he decided to seek to have the matter reinstated under s 55(2). That was the application heard on 25 March 2014. 78Two matters arise for consideration from that explanation: first whether the deliberate forensic decision to seek reinstatement rather than to appeal provides a satisfactory explanation in favour of granting an extension of time; and second whether there is any satisfactory explanation for the delay between 25 March 2014 and 23 April 2014, in circumstances where a considerable period had already expired between the hearing on 19 February and the refusal to reinstate on 25 March 2014. 79In the Appeal Panel's view, the fact that the appellant chose first to seek reinstatement under s 55(2) rather than appeal does not, without more, establish a satisfactory explanation for failing to appeal against the decision of 19 February within time. If that original decision was affected by error such as to render it liable to be set aside on appeal, an appeal could have been lodged. Seeking reinstatement under s 55(2) does not involve any challenge to the original decision to dismiss under s 55(1)(c) but merely seeks to have the decision reversed on the basis that a reasonable explanation for the failure to appear has been given and it is appropriate for the proceedings to be allowed to continue. In the present case, no additional circumstance was raised which would explain why an appeal against the 19 February decision was not lodged within the period of 28 days after the decision if it was thought that that decision was affected by error. 80Furthermore, no explanation has been provided as to why it took the appellant a further 29 days after the refusal of the reinstatement application on 25 March to appeal in respect of the 19 February decision. 81In these circumstances, the Appeal Panel is not satisfied that any sufficient explanation for the delay in appealing from the decision of 19 February has been given. 82As to the failure to appeal within time from the decision of 25 March, the appellant has provided no evidence or submissions to explain why the notice of appeal with respect to the 25 March 2014 decision was not lodged within the relevant time limit. The appellant has been legally represented at all times since October 2013 and there is no suggestion in any of the material that the appellant was impeded in any way from lodging his notice of appeal within time. The complete absence of an explanation counterbalances to some extent the fact that the notice of appeal was only lodged one day out of time, albeit 29 days after the decision. 83Accordingly, the Appeal Panel does not accept that the appellant has provided any or any adequate explanation for the relevant delays. That lack of an explanation of the delay is a factor which should weigh significantly against granting an extension of time: see Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at, for example, [103] where the importance of an explanation in a different but similar context was explained. Prejudice to the Respondent 84Before turning to consider the appellant's prospects of success both on its application for leave to appeal and any appeal if leave were granted, the Panel will address the extent of any prejudice to the respondent. 85 The Court of Appeal held in Nanschild v Pratt [2011] NSWCA 85 at [39]: The underlying premise to these propositions in Gallo (as is made apparent in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 (at [7]) per Brennan CJ and McHugh J) is that the Court's approach to an application to extend the time for filing an appeal from a judgment determining substantive rights (or here to seek leave to appeal) "at any time" recognises that "the respondent to the application has a vested right to retain the judgment" proposed to be the subject of appeal: Jackamarra v Krakouer (at [4]); Tomko v Palasty (No 2) [2007] NSWCA 369 (at [55]) per Basten JA (Hodgson and Ipp JJA agreeing). 86Accordingly, it should be accepted that any such "vested right" which the respondent has to retain the benefit of the dismissal and refusal of reinstatement of these proceedings should be taken into account in determining whether an extension of time should be granted. No other specific prejudice to the respondent if an extension of time were granted was identified beyond that flowing from the further delay in the resolution of this matter in circumstances where the appellant's repeated failure to comply with directions has already delayed the determination of the proceedings and increased the costs. 87The considerations addressed up to this point, except for the length of the delay, tend generally, in the Appeal Panel's view, against granting an extension of time. It is now necessary to consider the appellant's prospects of success on the application for leave to appeal. 88The Appeal Panel has heard full argument, not only on the applications for an extension of time and leave to appeal but also on the appeal, if leave were granted. Prospects of Success on Application for Leave to Appeal 89As to the appellant's prospects of obtaining leave to appeal in respect of the dismissal order on 19 February and the refusal of reinstatement on 25 March 2014, the principles applicable to the granting of leave were summarised by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84] as follows: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 90The appellant argued that leave to appeal should be granted on 2 bases. 91The first was that the Tribunal's fact finding process in respect of the 25 March decision was so unorthodox or had been carried out in such a way that it was likely to produce an unfair result, relying on the statement in Collins v Urban at [84(2)(e)]. 92As the Appeal Panel understood it, the submission was in effect that once the Tribunal had accepted that Ms Burrows was required to travel to Brisbane on the evening of 18 February, as it did, it was illogical for it not to accept that this constituted a reasonable explanation of her non-appearance on 19 February 2014. Further, if the Tribunal accepted that she had to fly to Brisbane it was illogical for it not to accept also that this caused her to have "completely forgotten" her commitments in the Tribunal on 19 February. This was the explanation why she did not appear and it also explained why she did not make arrangements for someone else to attend in her place. This illogicality meant that the fact finding process by the Tribunal on 25 March 2014 should be found to have been flawed and thus so unorthodox or carried out in such a way as to lead to an unfair result. 93The Appeal Panel does not accept this submission. What occurred at the hearing on 25 March 2014 has been referred to above. Ms Burrows did not put on evidence which could be tested in cross examination to explain why there had been no appearance by or on behalf of the appellant on 19 February. Over the objection of the respondent, Senior Member Scahill permitted Ms Burrows to give her explanation by way of submissions from the bar table supplemented by her letter of 19 February 2014. The Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit - s 38(2) of the Act. It was entitled to receive the information concerning Ms Burrows' explanation for the failure to appear in the way that it did. Having received that information, the Tribunal was not, however, bound to accept it as a true, accurate or full account of what occurred. 94The Tribunal accepted that part of those submissions that was corroborated by the document which showed that Ms Burrows had flown to Brisbane on the evening of 18 February 2014. It did not accept that Ms Burrows had completely forgotten about the hearing on 19 February 2014. Nor did it accept that Ms Burrows' submissions explained why other arrangements had not been made for someone else to attend the hearing on 19 February. These conclusions were open and not illogical. The Tribunal was entitled to take into account that the information was "untested and untestable" and reject what was uncorroborated. This was especially so when there was no explanation of how Ms Burrows could have forgotten about a matter in which: (1)she had been reminded on 5 February 2014 that the proceedings might be dismissed if the appellant did not comply with those directions by 18 February 2014; (2)the appellant had not complied with those directions by 18 February; (3)she, as the appellant's solicitor, had a responsibility to ensure that the appellant was appropriately represented before the Tribunal on 19 February and was in a position to defend an application for dismissal for want of prosecution on that day. 95The Tribunal's acceptance of part but not all of Ms Burrows' explanation was permissible in the circumstances and did not involve any error. There was no lack of orthodoxy in, nor any resulting unfairness from, the Tribunal's fact finding process. 96For these reasons the Appeal Panel is of the view that the appellant has no real prospect of success in obtaining leave to appeal on this ground. If it was required to decide whether leave should be granted, the Appeal Panel would refuse leave to appeal on this basis. 97The second basis upon which the appellant submitted that leave to appeal should be granted was that this matter involved an injustice which was reasonably clear, as referred to in Collins v Urban at [84(2)(c)]. As the Appeal Panel understood it, the injustice referred to was that the appellant's complaint would remain dismissed and would not be heard and as a consequence there would be no decision of the Tribunal to stop the way the appellant was treated by police. 98It can be noted that this injustice was not said to arise out of the way in which proceedings were conducted or the decisions reached on 19 February or 25 March 2014. The injustice identified related primarily to the appellant's substantive complaint of racial discrimination. Dismissal of the proceedings and the refusal to reinstate them naturally means that they will not be heard. It does not follow from this, however, that this injustice resulted from some error affecting the 19 February or 25 March decisions which could be cured by the intervention of the Appeal Panel. To the extent that there is any injustice in not having the Tribunal determine the matter and reach a decision that might prevent further incidents of racial discrimination against the appellant, the appellant has failed to show that this occurred as a result of some error by the Tribunal capable of being corrected on appeal rather than as a result of the action and inaction of the appellant and those acting on his behalf. 99Further, in considering the nature and extent of the injustice as identified by the appellant, namely that because there would be no decision of the Tribunal the discriminatory conduct might continue, the Appeal Panel observes that if further unlawful discrimination has already taken place or occurs in future, the appellant could make a fresh, properly based complaint under the AD Act in relation to that conduct. To the extent that it may be relevant, it can also be noted that the appellant's present complaint had been declined by the President of the ADB as lacking in substance and the decision to grant leave for the complaint to be the subject of proceedings in the Tribunal did not involve a finding that the complaint had substantial merit. 100In the Appeal Panel's view, the appellant has failed to establish that there is any relevant or sufficient injustice which would require or justify the granting leave to appeal in the circumstances. For these reasons, the Appeal Panel is satisfied that the appellant has no real prospect of success in obtaining leave to appeal on this second basis. Once again, if the Appeal Panel was required to determine whether leave to appeal should be granted, it would not grant leave to appeal. 101The Appeal Panel's conclusion that the appellant has no real prospect of successfully obtaining leave to appeal is a further consideration significantly in favour of refusing an extension of time. 102Having heard full submissions on the appeal if leave were granted, it is appropriate to say something on the issue of the appellant's prospects of success on the appeal itself, even though this may not be strictly necessary. Prospects of Success on the Appeal 103In summary, the Panel is of the view that the appeal has no real prospects of success because the appellant has not identified any reasonably arguable error of law or other error affecting either the Tribunal's dismissal and costs decisions of 19 February 2014 or the refusal of reinstatement decision of 25 March 2014. 104The 19 February dismissal decision was based on the uncontested fact that there was no appearance by or on behalf of the appellant on that day. In those circumstances, the power to dismiss under s 55(1)(c) of the Act was enlivened. Given the history of the matter and the fact that an application to reinstate could be made under s 55(2), there is no proper basis to conclude that there was any arguable appellable error by the Deputy President in the exercise of her discretion. The order that the appellant pay the respondent's costs of preparation and attendance on 19 February was within power and unattended by arguable error. 105Similarly, the Appeal Panel considers that the decision on 25 March to refuse to reinstate the proceedings was open on the material before the Tribunal. On this material, the Tribunal was entitled to conclude that no reasonable explanation for the non-appearance had been given and consequently the power to reinstate was not engaged. 106In the following paragraphs, the Appeal Panel addresses each of the appellant's grounds of appeal and submissions on the appeal. As the appellant's submissions were not tied specifically to his grounds of appeal, the Panel will deal with the submissions made and will note, where relevant, the ground of appeal which appears to be involved. In oral submissions, the appellant identified 10 bases upon which it was said the appeal should be allowed. 107First, the appellant submitted in effect that given the lack of formality to proceedings in the Tribunal, it ought to have accepted the submissions by Ms Burrows on 25 March 2014, without the need for affidavit evidence. The Appeal Panel notes, however, that the Tribunal did permit Ms Burrows to give her explanation from the bar table and did not accept the respondent's objection to that course. It does not follow from this, however, that the Tribunal was bound to accept any explanation as a matter of fact or to be satisfied that it amounted to a reasonable explanation for the failure to appear under s 55(2) of the Act. It was open to the Tribunal not to accept the whole of the explanation and to find that the material presented did not provide a reasonable explanation for the failure by anyone on behalf of the Appellant to appear. The Appeal Panel finds that there was no arguable error by the Tribunal on this basis. 108Secondly, it was submitted that the Tribunal erred as it failed to appreciate on 19 February that the appellant had already filed materials in the case and a hearing should have been allowed to proceed on the basis of that material. This appears to be the substance of the first ground of appeal set out in the notice of appeal (item 11B page 2). One problem with this submission is that the Tribunal on 19 February dismissed the proceedings for non-appearance by the appellant under s 55(1)(c). The mere fact that some material had already been filed would not have the consequence that there was an error if the Tribunal decided to dismiss the proceedings for non-appearance. Further and in any event, the Tribunal had on numerous occasions made directions for the filing of material in addition to that which the appellant had already filed. These were points of claim, a witness statement or affidavit by the appellant and a statement of loss and damage. These directions had not been complied with. The directions were not misguided or otherwise able to be ignored by the appellant. They were designed to ensure that the appellant had clearly identified what incidents he was relying on and what his case was and also to inform the respondent of the case it had to meet. They were appropriate to ensure that the proceedings were conducted efficiently and fairly. Even if the fact that the appellant had filed some material was a relevant consideration, the failure by the appellant to comply with directions and co-operate in the preparation of the case for hearing provided more than ample support for the Tribunal's decision. In these circumstances, there was no arguable error by the Tribunal in its decision on 19 February 2014 as submitted by the appellant. 109Thirdly, the appellant submitted that the appeal should be allowed on the basis that the Tribunal was in error in dismissing the proceedings on 19 February 2014 and not taking into account the fact that the respondent had not filed any materials in response to the materials filed by the appellant. This ground appears to be misconceived on the same basis as the preceding submission. In any event, in circumstances where the appellant had failed to provide points of claim in proper form, an affidavit or statement from the appellant or a statement of loss and damage as directed, the time for the respondent to file any material had not arrived. No arguable error by the Tribunal is disclosed on this basis. 110Fourthly, it was submitted that the appeal ought to be allowed because on 25 March 2014, the Tribunal failed to consider the onerous travel timetable of the appellant and his commitments in other proceedings in Egypt and should have accepted the evidence already filed by the appellant "as is" or accepted "fresh evidence present in submissions as available to file that day" if the matter was allowed to continue. One problem with this submission is that the information concerning the appellant's other commitments appears to go to why the appellant might not have complied previously with the numerous directions of the Tribunal for the service of documents in support of his case but it does not go to any explanation for the failure of anyone to appear on the appellant's behalf on 19 February. It was not suggested that, because of the matters relied on, Ms Burrows or someone else could not have attended on 19 February or Ms Burrows could not have given a reasonable explanation on 25 March 2014. Further, no basis is given for concluding that the Tribunal should have accepted that the additional evidence was available to be filed that day. Even if the Tribunal had failed to consider those matters on 25 March, they were not relevant to whether there was a reasonable explanation for the failure to appear on 19 February. Not being satisfied that there was a reasonable explanation for the non-appearance, the Tribunal was in the position where its power to reinstate was not enlivened. No arguable error by the Tribunal below arises out of the circumstances relied upon by the appellant. 111Fifthly, it was contended that on 25 March the Tribunal erred because it did not hold that on 19 February it should have stood the matter down and afforded the Appellant an opportunity to be heard on the dismissal. As the Appeal Panel understood it this amounted to a submission that the Tribunal failed to afford the appellant procedural fairness on 19 February 2014 and this should have been taken into account at the 25 March hearing. This appears to be the substance of the fifth ground of appeal (see item 11B on page 2 of the notice of appeal). A further error was submitted to be that the Tribunal did not accept or take into account that Ms Burrows had attempted to contact the Tribunal within 10 minutes of the dismissal. Given the ability of the appellant to apply to have the matter reinstated under s 55(2), it was not an error by the Tribunal to have dismissed proceedings under s 55(1)(c) for non-appearance without hearing the appellant. The power to dismiss for non-appearance has inherent in it that the applicant who fails to appear will not be heard on the question of dismissal. There is no lack of procedural fairness in so dismissing proceedings because of the ability of the applicant whose proceedings have been dismissed in these circumstances to apply under s 55(2) for reinstatement. On the reinstatement application the applicant is given a full opportunity to be heard. The appellant was given such an opportunity on 25 March 2014. As to the second matter, the Tribunal was not bound to accept Ms Burrows' submissions as to what she did on 19 February. Further and in any event, whether Ms Burrows did or did not attempt to contact the Tribunal to have the matter reinstated 10 minutes after it was dismissed is not relevant to whether or not she had a reasonable explanation for her non-appearance. The Appeal Panel finds that there was no arguable basis for concluding that the Tribunal erred as submitted. 112Sixthly, the appellant submitted that on 25 March 2014, the Tribunal should have accepted that there was "fresh evidence" namely the forensic psychiatrist's report and two new witness statements in relation to one of the incidents and material that had not been available at the earlier case conferences so that the proceedings should have been reinstated. This in substance raises ground 3 in the notice of appeal (item 11B on page 2). This does not, however, go to the question of whether there was a reasonable explanation for the non-appearance. In the absence of such an explanation to the satisfaction of the Tribunal, the Tribunal power to reinstate the proceedings was not enlivened. In addition, to the extent that it is said that the Tribunal should have accepted Ms Burrows' explanation that she had completely forgotten about her commitments to attend on 19 February because of the very personal urgent drama that occurred on the night before, the Tribunal was not bound to accept that submission from Ms Burrows and there was no arguable error in the Tribunal's not doing so. 113Seventhly, the appellant submitted that the Tribunal on 25 March 2014 did not give proper weight to the fact that new material was capable of being filed the very next day and did not accept Ms Burrows' submissions form the bar table as accurately portraying the situation as it was. Thus it was said that by dismissing the reinstatement application the Tribunal refused to allow that material to be put before the Tribunal and this was an error of law. The Appeal Panel once again rejects this submission. The substance of these submissions has already been dealt with above. They do not amount to any arguable error of law on the part of the Tribunal at first instance. 114Eighthly, the appellant contends, and the Appeal Panel accepts, that the application heard on 25 March 2014 was one under s 55(2) of the Act. The application turned on whether or not the Tribunal considered there was a reasonable explanation for the failure of the appellant to appear on only one single occasion on 19 February 2014 and not a history of non-appearance. As there was only one instance of non-appearance it was submitted that the Tribunal ought not to have refused to reinstate. Even though there may be only one instance of non-appearance, if the proceedings are dismissed under s 55(1)(c), the Appeal Panel has to be satisfied that there is a reasonable explanation for that one instance of failure to appear before the power to reinstate is enlivened. In considering whether any explanation is reasonable, the history of the matter may be relevant matter both in assessing whether the evidence and submissions put before the Tribunal should be accepted and in determining whether the facts found amounted to a reasonable explanation. It is noted that on 25 March 2014 Ms Burrows took no issue with the procedural history of non-compliance put before the Tribunal on the application, by way of Ms Howell's affidavit. Furthermore, the Tribunal was entitled to take into account that its directions to file and serve material by 18 February 2014 had not been complied with and that Ms Burrows had been aware of those directions. On the material before the Tribunal and its knowledge of the matter, it was open for the Tribunal to come to the view in those circumstances that it did not accept all Ms Burrows' submissions and that a reasonable explanation had not been established even though there had only been a single instance of non-appearance. The Appeal Panel is satisfied that there was no arguable error by the Tribunal in this regard. 115Ninthly, it was submitted that the Tribunal erred in, on the one hand accepting that Ms Burrows was required to travel to Brisbane, but on the other hand not accepting that this caused her to have "completely forgotten" her commitments. The non-acceptance of that explanation was said to be crucial to the decision to refuse reinstatement and the Tribunal's reasoning that Ms Burrows ought to have made arrangements for someone to appear on behalf of the appellant was illogical in the light of Ms Burrows' explanation. The submission that Ms Burrows was required to travel to Brisbane on the evening of 18 February was supported by evidence of the Virgin Airlines ticket on Ms Burrows' computer screen. The reason for her traveling to Brisbane and its allegedly causing her to completely forget her commitments was unsupported except by Ms Burrows' submissions from the bar table and what she had written in her letter which were both "untested and untestable". In these circumstances, there was no illogicality in the Tribunal's accepting one part of Ms Burrows' submission but not the remainder. It was open to the Tribunal to do what it did. In addition, the Panel relies upon what it has said above in relation to the application for leave to appeal. The Appeal Panel rejects the submissions that the Tribunal failed to take into account a relevant consideration and that there was an arguable error of law in this regard. 116Tenthly, the Appellant contended that the Tribunal's consideration on 25 March 2014 of the fact that the appellant had failed to pay the previous costs order involved an error of law by taking into account an irrelevant consideration as there was no order that the costs be paid by a particular date. It was accepted by the respondent that no particular date was set by the Tribunal for payment. Even if it were accepted that this consideration might not be relevant in determining whether or not a reasonable explanation had been given for the non-appearance on 19 February 2014, the Tribunal's comment concerning costs comes after Senior Member Scahill's conclusion that "I do not consider that the material before me, as untested and untestable as it is, constitutes a reasonable explanation for the failure of the [appellant] or his representative to appear on the 19th of February." Accordingly, it does not appear to us that this consideration formed part of her consideration of whether there had been a reasonable explanation given. The failure to pay the costs was referred to in the context of whether the appellant and his representative had complied with the obligation to co-operate with the Tribunal and comply with directions found in s 36(3) of the Act. This had been one of the foundations for the costs order below. The appellant had contended that Senior Member Scahill's earlier reference to "in the context of the matter so far" included the consideration of the appellant's failure to pay costs. However, in oral submissions before the Appeal Panel, the appellant's counsel quite properly conceded that those words were ambiguous and it was not clear what was being taken into account. The Appeal Panel is of the view that, in circumstances where the appellant did not seek a written statement of reasons for the decision under s 62 of the Act, it would not be proper to infer any error by the Tribunal in making that reference to the context of the matter. Furthermore, the Appeal Panel is of the view that even if the Tribunal did take this matter into account on the question of whether there was a reasonable explanation for the non-appearance and this was improper, it is unlikely to have had any effect on the outcome. 117In written submissions the appellant also relied upon the fact that he was initially self-represented in the proceedings and suffered from a resulting inability to properly prepare his case against the respondent and also suffered difficulty because of he was overseas dealing with Egyptian legal proceedings. This submission relates to ground 4 in the notice of appeal (item 11B page 2). These considerations are, however, irrelevant to anything that occurred on or after 19 February 2014. The appellant had been legally represented by Ms Burrows since as early as October 2013. On 5 February 2014, when the matter was before the Tribunal (the 27 November 2013 directions not having been complied with by the appellant) and when Ms Burrows was again present, the appellant was expressly put on notice of the need to provide points of claim in proper form, a witness statement from the appellant and a statement of loss and damage and that any failure to do so might result in the matter being dismissed. Notwithstanding that warning, the directions of 5 February 2014 were not complied with by 18 February 2014. This was so notwithstanding that on 19 February 2014, the appellant would be facing an application for dismissal based on the failure to comply with the directions. No explanation was provided either before the Tribunal on 25 March 2014 or before the Appeal Panel as to why the directions made on 5 February 2014 were not complied with. There is no basis for concluding that the appellant has relevantly suffered hardship in the proceedings because of his lack of understanding of the procedures of the Tribunal and the onerous nature of his case against the respondent given that he was legally represented after October 2013 and given that the conduct and circumstances which were primarily relevant in the present appeal related to what occurred on or after 5 February 2014. There was no arguable error by the Tribunal in this regard. 118The appellant submitted, in its written submissions, that a just, quick and cheap resolution of the proceedings required that the Tribunal ought to have reinstated the case, particularly where further "potentially new and significant" evidence was ready to be put forward. The Appeal Panel is of the view that this submission was not reasonably arguable in circumstances where the appellant had been afforded numerous opportunities over a substantial period to put his case in order but had not done so, where considerable expense had been incurred on both sides without meaningful progress being made and where, in any event, the proceedings were dismissed for failure to appear and the material subsequently put forward on the appellant's behalf was not sufficient to satisfy the Tribunal that the appellant had a reasonable explanation for that failure. Indeed the requirement to apply the Act and the procedural rules so as to achieve the just, quick and cheap resolution of the real issues in the proceedings would, in the Appeal Panel's view, support the approach taken by the Tribunal both on 19 February and 25 March 2014. Condoning a failure to appear at a significant case conference, in circumstances where the previous directions had not been complied with and a warning that dismissal for want of prosecution or a similar application might be granted if the latest directions were not complied with, would not be conducive to achieving the just, quick and cheap resolution of the real issues in the proceedings. Nor would reinstating the proceedings in the absence of a reasonable explanation of the failure to appear at such an important case conference. The appellant's submission does not raise an arguable error by the Tribunal below. 119The appellant also submitted that by accepting the respondent's submissions as to the failure by the appellant to file evidence in support of the application to reinstate the proceedings, the Tribunal failed to make use of its powers to inform itself on any manner as it sees fit, pursuant to s 38(2) of the Act. The Tribunal should, it was contended, have enquired of Ms Burrows as to any relevant matter, particularly given that it was Ms Burrows who could provide such evidence. The transcript of what occurred on 25 March 2014 reveals that at the outset the respondent objected to information from Ms Burrows being put before the Tribunal from the bar table and not by way or evidence that was sworn or affirmed and which could be the subject of cross examination. However, the Tribunal rejected that objection by the respondent and allowed Ms Burrows to give her explanation from the bar table and by her letter of 19 February 2014. The Tribunal did not restrict in any way the explanation which Ms Burrows could put before the Tribunal and did ask questions to illuminate or clarify issues. Senior Member Scahill invited Ms Burrows to put any further material before the Tribunal, to which Ms Burrows responded "Other than I'm just relying upon the Court's discretion as to allow this to - unfortunate circumstances I know it is not as an excuse as a solicitor, but the nature of it was urgent. Mr Habib was not expected to attend that day, I was meant to attend, it's not Mr Habib's failure that he was not there it was mine, I was meant to attend on my own.... And also, as I said I ask to rely upon the decision 5th of March 2013 as to the strength and merit of this case to continue, and that we do have all the evidence ready now to file, tomorrow or this afternoon, and this is it." Ms Burrows then provided the details of her flight to Brisbane, which Senior Member Scahill accepted as evidence of her being required to travel to Brisbane. Ms Burrows was again asked if there was anything she wanted to put before the Tribunal to which she responded "Only just that granted that we are ready to proceed and file everything tomorrow, I just - I ask for the discretion to accept you know the circumstances in that Mr Habib, - it is unjust if he is to be ..." Ms Burrows was later given the opportunity to respond to the respondent's submissions and she provided information about Mr Habib being aware of the "cut off date being the 18th" and then provided a further explanation that he could not get statements signed until after that date. Ms Burrows again stated that the evidence was now ready and that in 2013 the Appellant had been self-represented. It was always open to Ms Burrows on behalf of the appellant to put before the Tribunal whatever information and evidence she thought appropriate and to do so in a form thought to be appropriate. It is the view of the Appeal Panel that Senior Member Scahill made proper use of the Tribunal's powers to inform itself on any manner as it sees fit, under s 38(2) of the Act. Accordingly, it should not be concluded that the Tribunal arguably erred as submitted. 120Ground 2 in the notice of appeal (item 11B on page 2) raised the issue that the Tribunal failed to consider the difficulty and onerous situation of proceedings against the NSW Police in that witnesses do not wish to be involved and delays in finding witnesses willing to be witnesses in proceedings. It is not apparent to the Tribunal that these matters were raised in evidence or submission before the Tribunal on 15 March 2014. It is obvious that they were not raised with the Tribunal on 19 February as there was no appearance by or on behalf of the appellant on that occasion. Further and in any event, whether or not these difficulties were made out as a matter of fact, they were not relevant to the proceedings being dismissed on 19 February 2014. The dismissal was based on the ground that neither Ms Burrows, the appellant himself nor anyone else appeared on his behalf on that day. Similarly, they were not relevant to whether the appellant on 25 March 2014 satisfied the Tribunal that there was a reasonable explanation for the failure to appear. There was no arguable error by the Tribunal in failing to consider those matters, even if they had been raised by the appellant on 25 March. 121Finally, the appellant appealed against the costs order made on 19 February 2014 that the appellant pay the respondent's costs (see item 11A on page 2 of the notice of appeal). The appellant's written submissions referred to this issue briefly but were not elaborated upon in oral submissions. The written submissions were as follows: The order for costs should be dismissed as to the prejudice it would have upon the appellant section 60 provides the primary position to costs in the proceedings is that each party pay its own costs. 122Section 60 of the Act, and s 88 of the ADT Act, both established a regime under which the primary position was indeed that each party should pay its own costs. Section 60 provides: (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. 123Accepting, as it does for the purposes of this appeal, that the Tribunal was entitled to proceed as it did under s 60 of the Act, the Appeal Panel considers that it is not necessary to consider the terms of s 88 of the ADT Act (which are similar but not entirely the same). 124The order of the Tribunal relating to costs was recorded as follows in the notice of order given to the parties: Applicant to pay respondent's costs of preparation and attendance on 19 February 2014 pursuant to s 60(3)(g) and s 60(3)(f) of NCAT Act - failure to co-operate with Tribunal 125The references to s 60(3)(f) and (g) indicate that the Tribunal found that there were special circumstances in the present case so that the primary position under s 60(1) was displaced and a costs order could be made. No statement of written reasons was sought by the appellant under s 62 in respect of this costs decision. Thus the only record of the reasons why the decision was made is found in the notation on the file of the Tribunal below that: Pursuant s 60(3)(f) failure to cooperate under s 36(3) s 60(3)(g) any other matter - failure to inform parties of the intention not to file material by 18/2 and not to appear on 19/2 126The appellants did not challenge these findings of failure to co-operate and failure to inform the parties of the intention not to file material as required by the directions by 18 February and not to appear on 19 February. In the Appeal Panel's view these findings were well open on the material. Further, the appellant did not make any submissions on why such findings would not fall within the considerations referred to in s 60(3)(f) and (g). The Appeal Panel is satisfied that these findings support the conclusion that there were special circumstances in this case and there was no arguable error in the Tribunal's decision on 19 February 2014 that the appellant should pay the respondent's costs of preparation and attendance on 19 February 2014. 127For these reasons, the Appeal Panel has concluded that none of the submissions made, or grounds of appeal relied upon, by the appellant has any real prospects of success in having either the dismissal or the costs decisions of 19 February or the refusal to reinstate of 25 March 2014 set aside on appeal. Indeed, if, contrary to the conclusions reached below, an extension of time and leave to appeal should be granted, the Appeal Panel would dismiss the appeal from those decisions. 128The Appeal Panel's conclusion on the weakness of the appellant's application for leave to appeal and any appeal itself, is a factor which militates significantly against granting an extension of time in which to appeal. Has the Appellant demonstrated that Strict Application of the Rules would Work an Injustice? 129Having regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time, the Appeal Panel is satisfied that the appellant has not proved that strict compliance with the rules concerning the time in which a notice of appeal must be lodged will work an injustice upon the appellant. Conclusion on Extension of Time 130When an extension of time is sought for an application or appeal but the application or appeal is without merit and would be refused or dismissed, the proper course is to refuse the application for an extension of time - Roskott v Commonwealth Bank of Australia [2014] NSWCA 341 at [8]. 131In these circumstances and weighing all of the considerations referred to above in these reasons, the Appeal Panel considers that an extension of time in which to appeal in respect of both the 19 February and 25 March 2014 decisions should be refused. Consequential Matters 132The Appeal Panel having determined that it should not grant the appellant an extension of time in which to appeal, the questions of leave to appeal and whether any appeal should be upheld do not arise. 133As the appeal has been lodged out of time, it should be dismissed. 134Neither party sought costs on the appeal. Orders 135For these reasons, the Appeal Panel makes the following orders: 1. The application for an extension of time in which to appeal is dismissed. 2. The appeal is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ******** 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 Amendments 23 October 2014 - Deletion of unintended words Amended paragraphs: 21 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: 24 October 2014