Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners Strata Plan No 84751 v Karimbla Construction Services Pty Ltd [2016] NSWCATAP 145 Hearing dates: 18 March 2016, 2 June 2016 Date of orders: 28 June 2016 Decision date: 28 June 2016 Jurisdiction: Appeal Panel Before: The Hon D Cowdroy OAM QC ADCJ, Principal Member A Coleman SC, Senior Member Decision: Appeal allowed. See paragraph [124] for orders made. Catchwords: APPEAL: power of Tribunal to set aside or vary orders dismissing proceedings. APPEAL: whether discretion to set aside or vary orders should be exercised. Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Regulations 2014 Civil and Administrative Tribunal Rules 2014 Home Building Act 1989 Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Bailey v Marinoff [1971] 125 CLR 529 FAI General Insurance Co Limited v Southern Cross Exploration N.L. (1988) 165 CLR 268 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Owners Strata Plan No 70030 v Deacon Australia Pty Ltd [2-14] NSWSC 347 Category: Principal judgment Parties: The Owners Strata Plan No 84751 – Appellant Karimbla Construction Services Pty Ltd - Respondent Representation: Counsel: n/a – Appellant Mr Bradley - Respondent Solicitors: Ms Crittenen - Appellant File Number(s): AP 16/01346 Decision under appeal Court or tribunal: NCAT Jurisdiction: Consumer and Commercial Division Date of Decision: 15 December 2015 Before: D Goldstein, Senior Member File Number(s): HB 14/58159 REASONS FOR DECISION 1. On 15 December 2015 in proceedings brought by The Owners – Strata Plan No 84761 (the appellant) against Karimbla Constructions Services Pty Ltd (the respondent), the Tribunal made various orders, including an order that the appellant's application to extend the time for compliance with or vary certain orders previously made by the Tribunal on 3 November 2015, be refused. By its Notice of Appeal the appellant challenges such decision. Factual history 1. The appellant filed a home building application HB14/58159 against the respondent in respect of alleged defective building work carried out by the respondent on land known as 4-14 Merriwa Street, Gordon and 3-11 McIntyre Street, Gordon. It appears that Karimbla Properties (No 20) Pty Ltd, as developer, retained the services of the respondent (Karimbla) to demolish nine houses on such land, to relocate and reuse a cottage and thereafter construct two buildings containing 140 apartments together with parking. Development commenced on 17 April 2009 and was completed on 3 December 2010. An interim occupation certificate was issued on 3 December 2010. 2. Subsequently, alleged defects became apparent in the roof membrane, exhaust fans, fire dampers and balconies in the building. In addition, it is alleged that there were problems with water penetration, cracking of walls and waterproofing to shower recesses. 3. Initially a building expert, Bellmont Façade Engineering (Bellmont) provided a draft report on 15 October 2014. Based upon such report the appellant considered that various warranties had been breached under the Home Building Act 1989 (NSW) in that the building plans had allegedly not been complied with, and the materials used in the construction were unsuitable. Tribunal proceedings 1. The proceedings were set down for hearing on 1 September 2015. However, on that date the appellant successfully applied for an adjournment. The basis of the adjournment was the fact that its expert, who had been unable to provide the necessary investigative report, was not in a position to provide all the evidence required for the hearing. The Tribunal granted an adjournment of the hearing conditional upon the appellant paying $12,000 by way of the respondent's costs thrown away by reason of the adjournment and that such payment be made forthwith. 2. The relevant orders made by the Tribunal on 1 September were as follows: By determination of the member, on 1 September 2015 the hearing was adjourned to a date to be fixed by the Registrar. 1. The hearing set down for 1 and 2 September 2015 is vacated. 2. The applicant is to file and serve a final consolidated report of [its expert] including an updated Scott Schedule, no later than 20 September 2015. 3. The applicant is to file and serve a Quantity Surveyor Report, including a Scott Schedule with completed costings, no later than 30 October 2015. 4. The respondent is to file and serve any expert report in reply no later than 11 December 2015. 5. The applicant is to pay the respondent's costs thrown away by the vacation of this hearing, in the sum of $12,000 forthwith. Save in exceptional circumstances, no further adjournments will be granted to the applicant and no additional evidence other than that the subject of the orders above or already served, may be relied upon by either party. 1. On 13 October 2015 a listing notice was issue by the Registry listing proceedings HB14/58159 for a directions hearing on 15 December 2015. 2. By letter dated 13 October 2015 the respondent wrote to the Tribunal Registry and forwarded a copy of such letter to the appellant. Such letter stated: Despite numerous requests by the Respondent for the Applicant to comply with the orders made on 1 September 2015, the Applicant has not provided any indication as to when the Applicant will comply with the orders. Accordingly, we kindly request the matter be relisted for a directions hearing. 1. In consequence, the Registry listed the proceedings for directions on 3 November 2015 and advised the solicitors for each party of this fact by a Notice of Directions Hearing dated 14 October 2015. 2. On 3 November 2015 the respondent appeared by its legal representative at the directions hearing but there was no appearance on behalf of the appellant. 3. By its orders of 3 November 2015 the Tribunal extended the time for the provision of the appellant's evidence and material and made the following orders: 1. By Determination of member, on 03 November 2015 the hearing was adjourned to the date fixed by the Registrar. 2. The date for compliance with orders 3 and 4 made on 01 September 2015 is extended until 10 November 2015. 3. The date for compliance with order 5 made on 01 September 2015 is extended until 10 November 2015. 4. If the applicant fails to comply with order 2 above, the applicant will be permitted to rely only on evidence served to date and no further evidence may be served by the applicant. 5. If the applicant fails to comply with order 3 above, the application will be dismissed forthwith The parties are reminded the matter is listed for further directions on 15 December 2015. 1. Relevantly, on 3 November the Tribunal made, inter alia, the following notation at the foot of its orders: There was no appearance by the applicant today. The Tribunal notes that by letter dated 13 October 2015 the parties were advised the proceedings are listed for directions on 15 December 2015. At the request of the respondent, by letter dated 13 October 2015 the parties were advised the matter is listed today for directions. The respondent advises that despite the orders above made on 01 September 2015, the applicant has failed to file and serve any further evidence, and has not made the payment required by order 6. The applicant is advised to comply strictly with the new orders above. 1. The orders made on 3 November contain an obvious error. The reference in Order 3 made on 3 November to non-compliance with Order 5 of the orders of 1 September should have referred to order 6 of the 1 September orders which required the payment of the $12,000 representing the respondent's costs thrown away by reason of the vacation of the hearing. As can be seen from what occurred on 15 December 2015, that error was corrected. 2. Although not recorded in the orders of 3 November 2015, the transcript of that hearing records that the Tribunal member stated as follows: I'm going to make a further order, Ms Malouf requesting or ordering that the respondent is to contact or endeavour to contact the applicant today by telephone, email or fax to advise the applicant of these orders. Events subsequent to the 3 November 2015 Hearing 1. The respondent duly communicated the orders made on 3 November 2015 to the appellant's solicitor. That communication was by way of email from Ms Nichola Malouf to the appellant's solicitor Ms Jane Crittenden. It was sent at 10.56 am on 3 November 2015. It is necessary to set out the text of the email in full: Dear Jane, We refer to the directions hearing this morning and advise we appeared on behalf of the Respondent. We note there was no appearance by the Applicant. The Respondent advised the tribunal that the Applicant (sic) had not received any further reports by the Applicant nor had the Applicant made payment in accordance with the orders made on the previous occasion. Tribunal Member Meadows accordingly made the following orders: 1. The orders made in relation to the Applicant's evidence on 1 September 2015 are extended until 10 November 2015; 2. If the orders are not complied with by the Applicant, the Applicant will not have leave to rely on any evidence not already filed and served in the matter; 3. Payment of $12,000.00 is to be made by the Applicant to the Respondent by 10 November 2015. If payment is not made by 10 November 2015 the Application will be dismissed; 4. Respondent is to contact or endeavour to contact Applicant and advise Applicant of these orders. We look forward to receipt of your client's expert reports and payment in this matter. Nichola Malouf Corporate Counsel" 1. It is appropriate to observe that, whilst purporting to set out the orders made by the Tribunal on 3 November, the email does not do so. It sets out the effect of those orders but it does not repeat them verbatim. This may be significant at least in respect to the reference to the order extending the time for the payment of the $12,000.00 for the costs thrown away. It can be seen that the wording used in the email is different to the wording in the orders. Whereas the orders stated that if the payment was not made by 10 November the "…application will be dismissed forthwith" (emphasis added). The email says that such a failure will have the result that the application "will be dismissed". We will return to this matter below. 2. There is no dispute that the appellant's solicitor, Ms Crittenden, received this email. There was no response by her, nor did she do anything to re-list the matter before the Tribunal to challenge the orders or to seek to vary them. 3. On or around 5 November 2015, Ms Crittenden received the Tribunal's orders made on 3 November 2015. She accepted that from reading Ms Malouf's email and the Tribunal orders, she knew that order 3 constituted a "guillotine" order. That is, she appreciated that if the $12,000 for the costs of the aborted hearing were not paid by her client by 10 November, the proceedings would stand dismissed. 4. On 12 November 2015 Ms Malouf sent an email to Ms Crittenden referring to her earlier email of 3 November and the orders made on that day. She said: We note we have not received payment or evidence in accordance with the orders. Accordingly, we advise that at the directions hearing on 15 December 2015 we will be seeking for the application to be dismissed forthwith in accordance with the orders made 3 November 2015 (bold emphasis added). 1. On 27 November 2015 Ms Crittenden sent two emails to Ms Malouf serving the additional expert evidence of Bellmont and the quantity surveyor's report. The latter quantified the appellant's claim at $1,833,078. 2. On 30 November, the $12,000.00 for the costs of the vacated September hearing were paid by the appellant. 3. On 2 December 2015 the respondent copied Ms Crittenden with a letter it sent to the Tribunal on that date which set out the orders of 3 November and noted that the appellant had not complied with them. It enclosed an affidavit of Ms Malouf sworn on 2 December 2015. It stated: Karimbla Construction Services Pty Limited does not propose to take any further steps in the proceedings as it is of the understanding, pursuant to Order 5 of the orders made by Tribunal Member Meadows on 3 November 2015, NSW Civil and Administrative Tribunal Application No. HB14/58159 ("the Application") is dismissed. We kindly request confirmation the Application is dismissed. We note the matter has previously been listed for directions on 15 December 2015. We are of the view that this directions hearing should be vacated. The Respondent would however like to make an application for the purposes of determining the Respondent's costs consequential to the dismissal. The 15 December Hearing 1. On 15 December at the further directions hearing, both the appellant and the respondent appeared by their legal representatives. On this occasion the appellant's solicitor stated that she had received no notification from the Tribunal fixing the time for the directions hearing for 3 November 2015. She asserted that, had she received the notice, as her office was only three blocks distant from the Tribunal, she would have attended and this was the sole reason for the orders having been made on 3 November 2015 ex parte. She submitted that it was procedurally unfair for an order to be made which has the effect of dismissing the proceedings without her client having been present. 2. The appellant's solicitor informed the Tribunal during the course of this directions hearing that the amount of $12,000.00, being the amount owing under the costs order, had been paid in the preceding week. As can be seen from the 1 September orders set out above, that amount was originally ordered to be paid "forthwith". Then, by reason of the extension given on 3 November, that amount was to be paid by 10 November. 3. The Tribunal was also informed at the 15 December directions hearing that the expert evidence to be relied upon by the appellant had been filed and served but this occurred after 10 November 2015, which was the date provided for in the 3 November orders, and before the 15 December directions date. 4. At the 15 December directions hearing the respondent correctly asserted that there was an error in the orders of 3 November and instead of providing a time limit for the payment of moneys order 6, the order erroneously referred to order 5 which required the respondent to file and serve an expert report by 11 December 2015. Accordingly the respondent sought to have the order amended under the slip rule. That correction was made by the Tribunal with the consent of the parties. 5. The respondent's position as expressed at the hearing, and consistent with its letter to the Tribunal of 2 December (but arguably inconsistent with Ms Malouf's email to Ms Crittenden of 12 November 2015 as set out in [19] above) was that by reason of the default in compliance with the order extending time for payment of the $12,000.00, the proceedings were, as at the date of non-payment, dismissed. That is, the respondent contended that order 5 made on 3 November 2015 was a self-executing order that had the effect of dismissing the proceedings immediately on failure by the appellant to comply with order 5. 6. The appellant opposed any instant dismissal of the proceedings. She submitted that the Tribunal had the power to extend the date of compliance of the 3 November orders and sought an extension time for compliance with those orders. Next, the appellant's solicitor informed the Tribunal that as a result of the experts' reports by then received by the appellant, the claim against the respondent had increased from $300,000, as stated in the application, to $1.8m. The appellant submitted that the Tribunal therefore no longer had jurisdiction in the matter and it should be transferred to the Supreme Court. 7. The appellant's solicitor appeared to accept that when payment of the $12,000.00 was made on or about 30 November, that her client was in breach of the 3 November orders and that "there was a consequence embedded in the 3 November orders". When she was asked by the Tribunal why she did not "move after 3 November to deal with the matter", she responded that she was aware of the directions hearing of 15 December and that at such hearing she proposed to request the Tribunal to extend the time for compliance for the filing of the reports of both Bellmont and the quantity surveyor, Mr David Madden. No evidence was tendered, however, to explain why the orders had not been complied with. The appellant's solicitor also informed the Tribunal that if the proceedings were dismissed, the proceedings would be time barred on the basis that the Occupation Certificate had been issued on 23 February 2011 and the seven year period in which to bring proceedings under the relevant warranties would have expired. Orders of 15 December 2015 1. The Tribunal found that the appellant's failure to comply with order 5 of 3 November 2015 orders resulted in the application being dismissed as at the date of non-compliance. Further, the appellant was ordered to pay the respondent's costs of the proceedings as agreed or to be assessed on the ordinary basis under the legal costs legislation as contained and defined in the Legal Profession Uniform Law Application Act 2014. As we have observed, the Tribunal refused to vary the 3 November orders or to extend time for compliance with those orders on the basis that the appellant could not point to any provision of the Civil and Administrative Tribunal Act 2013 (the CAT Act) that gave it the power to do so. Effectively, it held it had no jurisdiction to vary the 3 November orders, the proceedings effectively having been dismissed upon no-compliance with the 3 November orders. Grounds of Appeal 1. The Notice of Appeal challenges orders 1 and 2 of the Tribunal made on 15 December 2015. The Tribunal's decision to refuse to consider the appellant's application to transfer the proceedings to the Supreme Court was also challenged. Is an extension of time required for the Appeal? 1. The respondent submits that the appeal was lodged out of time. It submits that the decision challenged is the orders of 3 November and the appeal ought to have been lodged 28 days after that decision. It was not lodged until 11 January 2016 and, so it is submitted, is out of time. 2. We do not agree. The decision the subject of the appeal is the decision made 15 December refusing to set aside or vary the orders made on 3 November. The appeal was lodged within the appropriate time and no extension of time is required. Is leave to appeal required? 1. The appellant challenges the Tribunal's decision that it did not have the power to set aside or vary the order made on 3 November 2015, non-compliance with which triggered the dismissal of the proceedings. In our opinion, the issue in the appeal involves the proper construction of the CAT Act and the jurisdiction and power of the Tribunal. As such, the appeal raises questions of law and no leave to appeal is required. Appellant's submissions 1. The appellant submits that the proceedings should not have been dismissed on the basis of a self-executing order made ex parte in circumstances where neither the appellant nor its legal representative received any notice of a listing for 3 November 2015. The appellant submits "that it was not just to make an order to dismiss the proceedings on 3 November 2015", if the appellant had not paid the costs of $12,000 or served its evidence by 10 November 2015 without hearing from the appellant. 2. Further, the appellant submits that by the time of the hearing on 15 December 2015 the appellant had paid the amount of the costs order of $12,000 and served a report by its expert Bellmont and the quantity surveyor's report of MBM Pty Ltd. Those reports were served on 27 November 2015 and the $12,000.00 was paid on 30 November 2015. As such, it was submitted that the appellant had complied with the extant orders of the Tribunal. 3. It was also submitted that if the proceedings were dismissed on the basis orders self-executing with the consequence that the proceedings had been dismissed on 10 November 2015, the Tribunal wrongly considered that it had no power to vary the orders made on 3 November 2015 by extending time for the appellant to comply with them. 4. The appellant submits it was not just to find that it had failed to relist the matter after 3 November 2015, in circumstances where the appellant was aware from the listing notice issued on 13 October 2015 that the proceedings were listed for further directions on 15 December 2015 and that the listing of 15 December had not been vacated by the orders made on 3 November 2015. 5. The appellant's solicitor also claims that she was confused because the there were inconsistencies between the orders made on 3 November, the summary of the orders provided in the respondent's email of 3 November 2015, a subsequent email from the respondent on 12 November 2015 and the letter from the respondent to the Tribunal dated 2 December 2015. Further the Tribunal's orders were confusing because of the error in order 5. 6. As to the power of the Tribunal to vary, set aside or extend time to comply with the 3 November orders, even if the proceedings were dismissed by reason of the non-compliance with those orders, the appellant pointed to several provisions of the CAT Act and Regulations which gave such power to the Tribunal. 7. First, section 38(5)(c) of the CAT Act is relied upon by the appellant to justify the appellant's claim that she has not had an opportunity to be heard. The appellant's solicitor received no notification of the hearing on 3 November. 8. Secondly, the appellant also relies upon the provisions of s 41(1) of the NCAT Act to justify a claim for an extension of time to comply with the orders of 3 November 2015, and to rely upon s 41(2) to do so even though for making such an application time has expired. The appellant specifically made such application in the closing stages of the hearing of the appeal. 9. Thirdly, appellant also relies upon s 53(4) of the NCAT Act to amend the orders made on 3 November 2015 on the basis that such orders should not have been made in the absence of the appellant. 10. Finally, appellant also relies upon the provisions of Regulation 9(1) of the Civil Administrative Tribunal Regulations (the Regulations) which invests power in the Tribunal to set aside or vary decisions which determine proceedings in the circumstances set out in the Regulation. Respondent's submissions 1. The respondent opposes the applicant's grounds of appeal. The respondent notes that on 3 November 2015 the Tribunal examined its file and found a notice of listing which confirmed that the notice had been sent to the parties. The respondent submits there is no finding of fact that the appellant did not receive the notice of listing on 3 November 2015 and that it could have been expected that the appellant's solicitor would have put on evidence as to this matter; that the appellant was on notice of such orders before the proceedings were dismissed but took no steps to avail itself to seek to have the matter re-listed before 10 November to seek orders that the Tribunal vary the dismissal order; that the Tribunal afforded opportunities for the appellant to put its case on 1 September 2015 and 3 November 2015 and at any time before 10 November 2015 when the order dismissing the proceedings took effect. The respondent submits on 1 September 2015 the appellant was given the opportunity to make any submissions concerning the time required to serve further evidence and to discharge any costs order. The record notes that the appellant's case at that time was "significantly under prepared and costed". 2. The respondent submits that the costs of $12,000.00 were to be paid by 10 November failing which the proceedings were dismissed "forthwith", that is without further order and that the order did not require any further order before it became enforceable. 3. The respondent relies upon the decision of the High Court of Australia in Bailey v Marinoff [1971] 125 CLR 529 in which Barwick CJ at p530 expressed the opinion that where an order of a court had been perfected by being drawn up as a record of the court, the proceedings were at an end and could not be recalled. The respondent submits that here, the order was perfected when published by the Tribunal and as such, after that, the proceedings were dismissed and the Tribunal was functus officio and had no jurisdiction to set aside or vary the orders of 3 November 2015. 4. The respondent also contends that the self executing order dismissing the proceedings was justified for the administration of justice to enable the Tribunal to conduct the proceedings before it in a timely manner. 5. The respondent submits that no evidence is proffered by the appellant as to the steps which were taken by the appellant to comply with the orders made, or why it was unable to take such steps before the time for compliance had expired. The respondent also submits that there is no evidence as to whether or not, if the proceedings stand dismissed and having regard to the amendments to the Home Building Act 1989, the appellant would be time barred from commencing fresh proceedings for any or all of it's claim. 6. The respondent submits that none of the statutory provisions pointed to by the appellant are a source of power for the Tribunal to set aside or vary the 3 November orders. It submits s 38(5) has no application as the appellant had a reasonable opportunity to be heard on the orders, if not at the 3 November hearing (if it attended) then certainly in the period after 3 November and before the time for compliance had expired if it had chosen to re-list the matter. 7. The respondent submitted that s41 of the NCAT Act does not assist the appellant reinstate proceedings which are already dismissed and if it does, assuming Regulation 9 applies, an application for extension of time must be made within 7 days of the decision dismissing the proceedings. 8. The respondent also submits that s53(3) and 53(4) which relate to amendments being made where there are irregularities in any proceedings, are of no assistance in this case. The respondent submits no irregularities exist which would give rise to the operation of such power. 9. Further, the respondent submits that in answer to the appellant's contention that had it been present on 3 November 2015 it would have sought a further 28 days to pay the costs and to file its evidence because the seven days provided by the order of 3 November is insufficient, there was no evidence that the appellant was not in a position to pay the costs order within the time allowed nor to serve the evidence as required by the orders. Findings Is there power to amend or vary orders dismissing the proceedings? 1. The first question to be determined is whether the Tribunal erred in holding on 15 December 2015 that it had no power to vary or set aside order 5 made on 3 November 2015. That was the order which provided that if the $12,000.00 for the costs of the vacated hearing were not paid by 10 November 2015, the proceedings would be "dismissed forthwith". We are proceeding on the basis that this order was a "guillotine order" which had the effect that if payment of the money was not made by 10 November the proceedings would thereupon stand dismissed with no further order required by the Tribunal. That was the basis on which the appeal was argued and it was accepted to be the position by the parties to the appeal. 2. We note that s 55 of the CAT Act allows the Tribunal to dismiss at any stage proceedings that are before it in any of the following circumstances: (1) if the applicant… withdraws the application… to which the proceedings relate, (2) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (3) if the applicant… has failed to appear in the proceedings, or (4) if the Tribunal considers that there has been a what prosecution of the proceedings. 1. The Tribunal has power under s 55(2) of the CAT Act to reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure. 2. Whilst none of the provisions of s 55 are strictly relevant to the issues before us (for example the proceedings were not dismissed because the appellant did not appear on 3 November, rather because it failed to comply with the orders made that day), it has not been suggested, and we do not decide, that s55 of the CAT Act is the only source of power for the Tribunal to dismiss proceedings before it. Of course, the Tribunal retains control of its practice and procedure, is not generally bound by the rules of evidence and can inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. If a party failed to comply with a direction order of the Tribunal it must be the case the Tribunal has the power to dismiss those proceedings. In any event, it is not necessary for us to fully explore the powers of the Tribunal to dismiss proceedings before it as neither party contended that, in this case, the Tribunal did not have the power to make the order it did. 3. Before we consider the relevant statutory provisions, it is appropriate to comment on the circumstances in which the orders on 3 November were made. They were made in circumstances where the appellant was not represented. Significantly, no warning was provided by the respondent before the relisting, that orders would be sought of a self-executing nature. 4. Whilst the reasons for the non-appearance of the appellant on 3 November 2015 has been questioned by the respondent, the critical fact relied upon by the appellant, namely that no notification was received from the Tribunal of the hearing on 3 November 2015, was not expressly challenged by the respondent. 5. It appears that no attempt was made by the solicitor for the respondent to attempt to contact or communicate with the legal representative of the appellant to enquire why there was no appearance before the Tribunal. Of course, that is not to say that in every case of non-appearance, such enquiries should be made. However, in this case it is apparent from the transcript of the hearing on 3 November, that the solicitor for the respondent appreciated there may have been some confusion about the listing for that day. The following exchange took place (NM is Ms Malouf, the solicitor for the respondent): Member: When did you request that it be relisted? NM: About 3 or 4 weeks ago. A while ago. Member: And do you have a copy of the Notice of Hearing […]? NM: Not on me sorry. We did receive, maybe this is why the applicant hasn't turned up. I did receive, I made the application and then a few days later I received a Notice of Hearing which I think was from the original orders you made [on 1 September] because it was listed for directions. So I received a Notice of Hearing which I think is in December and then a few days later again I received this notice so I'm not too sure maybe there's a bit of confusion on his (sic) part that might be why they're not here. Member: Alright and are you seeking orders today? NM: Yes, I was hoping to seek orders, A Guillotine Order for the applicant to file the evidence or no further evidence to be filed in the matter and also for the payment to be made… (italic emphasis added) 1. The Tribunal, exercising the powers of the Consumer and Commercial Division, is entitled to proceed ex parte if it is satisfied that the Notice of Hearing was served on the party not in attendance or, being satisfied that service of the Notice of Hearing was duly attempted, or having been given directions under rule 15 to bring it to the notice of the party, considers that justice requires that the matter be dealt with in the absence of the party: Rule 35 Civil and Administrative Tribunal Rules 2014. The transcript of the hearing on 3 November indicates that the Tribunal did not have the file before it. As can be seen from above, the Tribunal asked Ms Malouf for a copy of the Notice of Hearing. She did not have one with her. In considering whether to make the orders, the Tribunal said: … There is no appearance by the applicant today and I do not have the Tribunal file in front of me but I accept Ms Malouf's submission from the bar table today that she has received a Notice of Hearing for two days in December and a Notice of Hearing for today's Directions Hearing. 1. The Tribunal had already referred to the defaults by the appellant in complying with the orders made on 1 September and proceeded to make the guillotine order requested. It also directed that Ms Malouf notify the appellant that day of the orders made. Whilst it did not expressly consider rule 35, we are prepared to accept that the Tribunal itself assumed that a copy of the Notice of Hearing had been sent to the appellant as it had been sent to Ms Malouf. We are also prepared to assume that, having regard to the listed defaults of the appellant in complying with the orders, the Tribunal considered that justice required the matter to proceed that day. Obviously, is better if the Tribunal in such circumstances makes express findings and exercises the required discretion as set out in Rule 35. 2. In such circumstances it may have been appropriate for the matter to have been stood down whilst an attempt was made to contact the solicitor for the appellant. That is particularly so having regard to the nature of the orders that were being sought. Had this step been taken, the consequent issues may not have arisen. We do not say ( and cannot determine on the evidence before us) that the guillotine orders would not have been made, but the appellant may at least have been able to satisfy the Tribunal that steps were being taken to comply with the 1 September orders, or explain why those orders had not been complied with. 3. This failure to try to contact the appellant's solicitor is, at least, troubling. There is no suggestion that the appellant was intending to abandon the proceedings: on the contrary, the claim was clearly of substantial proportions and the adjournment of the hearing day on 1 September 2015 was sought by the appellant solely upon the ground that further evidence was required and it was not in a position to proceed. This does not suggest that the appellant had given any indication that it was not wishing to prosecute the proceedings to finality. Further, whilst there was a submission made by the respondent that the appellant had failed to attend a previous directions hearing, no material was put before us which supported that submission. 4. Having made those observations, we move to consider the relevant statutory provisions. 5. Traditionally, both courts and this Tribunal have recognised that where orders are made ex parte, they are amenable to be set aside provided a reasonable explanation is provided for the non-appearance at the hearing. Regulation 9 of the Regulations relevantly provides : 9 Additional power to set aside or vary decision determining proceedings (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) If the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. (2) The Tribunal may make an order under this clause of its own motion or on the application of a party. (3) Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made. (4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this clause unless the Tribunal as first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account… 1. There is, therefore express power provided to the Tribunal to set aside an ex parte order which determines the proceedings if the circumstances of Reg 9 (1)(b) are met. 2. The relevant decision here is the decision by the Tribunal to make the guillotine order in order 5 of the 3 November orders. There is no dispute between the parties that once the appellant failed to comply with that order, the effect of that order was that it determined the proceedings by way of dismissal of those proceedings. The order dismissing the proceedings would take effect on 10 November, being the date specified in the order: s 61 CAT Act. 3. Accordingly, in our opinion, subject to the requirements of Reg 9 being met, which we will consider below, there is power for the Tribunal to set aside or vary the guillotine order made on 3 November 2015. As such, the Tribunal erred in concluding otherwise. It is necessary, however, to consider whether we remit the matter to the Tribunal to consider whether the requirements of Reg 9 have been met and, if so whether to exercise the discretion to vary or set aside the order of 3 November, or whether we exercise the discretion ourselves. 4. We have come to the conclusion that we should exercise the discretion ourselves (see s 80 (2) of the CAT Act). That is because the matter already has a long history and it is in the interests of justice that the matter not be the subject of any further delays, which would be the inevitable consequence of remitting the matter to the Tribunal and then facing the prospect of a further appeal from the Tribunal's decision. Further, and most importantly, we have before us all of the material the parties want to rely upon for the purposes of making that decision. We say that because when the matter was before us on 18 March we adjourned the hearing part-heard and made directions that the parties file and serve any evidence on which they wished to rely and submissions, on the questions of whether the Tribunal had the power to set aside or vary the orders of 3 November. The appellant chose to file no material and make no additional submissions. The solicitor for the appellant informed us that this was because she had formed the view that the material and submissions already filed and served by the appellant were sufficient. The respondent filed an additional affidavit of Ms Malouf of 3 May 2016 and handed to us a bundle of material containing all of the relevant material from its perspective. 5. Whilst we have concluded that there was power for the Tribunal to set aside or vary the orders of 3 November by reason of Reg 9, other provisions of the CAT Act were relied upon by the appellant to submit that there were additional or alternative sources of power to set aside or vary the 3 November orders. 6. Firstly, it relied on s 38(5)(c) of the CAT Act. That section provides that the Tribunal is to take such measures as are reasonably practicable, relevantly, to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. We do not think that this section is of assistance to the appellant. The section prescribes the measures the Tribunal must take so far as reasonably practicable in the conduct of the proceedings. One of those measures is to ensure that the parties are afforded natural justice: which is the effect of s38(5)(c). We do not think this section deals with the matter at hand. 7. No party made submissions that s 38(1) may give rise to a power to set aside or vary orders which dismiss proceedings. That section allows the Tribunal to determine its own procedure in relation to any matter for which the CAT Act or procedural rules do not otherwise make provision. We note that schedule 7 of the CAT Act sets out examples of procedural rule-making powers. Clause 15 of that schedule states as one of those examples the circumstances in which the Tribunal may vary or set aside its orders or other decisions. It may be, therefore, that argument is available that as it is clearly contemplated that the Tribunal may vary or set aside its orders or decisions, which must include orders or decisions which dismiss the proceedings, it has the power to determine the circumstances and procedure in which it can set aside such orders. In view of our conclusions on Reg 9, however, and as no submissions were received, we do not decide this point. 8. Next the appellant relied on s 53(3) and (4) of the CAT Act as a source of the power to set aside or vary orders dismissing proceedings. Those provisions state: (3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise. (4) The Tribunal may however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings. 1. The appellant states that the orders of 3 November 2015 dismissing the proceedings if certain steps had not been completed by 10 November 2015 were orders made irregularly in that orders would prevent the appellant's ability to recover damages and the action would be statute barred if the orders remained in force. It was submitted that those orders were made ex parte despite the active participation of the appellant in the proceedings and would not have been made had the appellant been present on 3 November 2015. 2. In our opinion, these provisions do not assist the appellant. We do not accept that the orders made on 3 November were made irregularly for the reasons relied upon by the appellant or at all. The power of the Tribunal to make ex parte orders is considered above. Relevantly, here, it is the failure of the appellant to comply with the orders of 3 November that has resulted in the proceedings being dismissed. There is no identified provision of the CAT Act or procedural rules that has not been complied with so as to enliven these provisions. We reject the appellant's submissions on this matter. 3. Next, the appellant relies on s 41 of the CAT Act. That section provides as follows: (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 in the legislation. (2) Such an application maybe made even though the relevant period of time has expired. 1. The appellant submits that this section itself provides power for the Tribunal to extend the time for it to comply with the order 5 of 3 November even though the time for complying with that order has expired. We do not accept that such a power is conferred by this section. This submission ignores the fact that it was only by reason of the failure to comply with order 5 of 3 November, that the proceedings were dismissed. This section ordinarily applies where time limits for the doing of things is prescribed by the CAT Act or Rules or other enabling legislation. The most common example of the application of this section is to extend the time by which a party must lodge an appeal from a decision of the Tribunal which time is often set by the enabling legislation that confers jurisdiction on the Tribunal. We do not accept that this section confers a power of itself for the Tribunal to set aside or vary a decision dismissing proceedings. The section is relevant, however, to the application of Reg 9 which is considered below. 2. Accordingly, the only identified source of power for the Tribunal to set aside or vary a decision which dismisses proceedings (other than the power to reinstate proceedings under s 55 of the Act which is not relevant in this case) is Reg 9. 3. The respondent submits that the Tribunal has no jurisdiction to set aside the orders as, once the proceedings are dismissed, the Tribunal is functus officio. The respondent relies on the decision in Bailey (supra) which confirms the common law position that where an order has been perfected on the court record, and the order requires disposal of proceedings, the court is functus officio. However, later authorities have held that where there is a power in the rules or procedures of a Court conferring on it a wide discretion to extend time fixed by the rules or by any judgment or order, the discretion available to be exercised under such a rule, should not be fettered "by judicial fiat": FAI General Insurance Co Limited v Southern Cross Exploration N.L. (1988) 165 CLR 268. That case dealt with whether the Supreme Court of NSW had power to extend the time for compliance with a self executing order, even though the application was made after time for compliance had expired and the proceedings were dismissed. It held, by reference to Pt 2, r 3 and Pt 40, r 9(4) and (5) of the Supreme Court Rules 1970, that it had such a power. The Court distinguished Bailey on at least the basis that it was dealing only with the inherent power of the Court and no statutory rule was involved. 4. In this case, we too are dealing with a regulation which expressly provides a power to set aside an order dismissing proceedings if the requirements of that rule are met. There is, within the rule, a wide discretion to allow an application even if it is made after the expiry of the time set for that application. We do not think, in these circumstances, the Tribunal is functus and we think Bailey is distinguishable. Should the Appeal Panel Exercise The Discretion to Extend Time to Comply with the 3 November Orders? 1. Having held that Reg 9 provides the power for the Tribunal to set aside or vary the time to comply with order 5 of the 3 November orders, it is necessary to determine whether the provisions of Reg 9 have been satisfied and whether we are prepared to exercise the discretion to set aside that order or vary the time for compliance. 2. The members of the Appeal Panel have a different view in this regard. We will therefore each express our own reasons for reaching the conclusions we do. The opinion of the Presiding Member will, by virtue of s 57(3)(b)(ii) of the CAT Act, prevail. Cowdroy QC ADCJ 1. The omission of the appellant to communicate with the Tribunal shortly after 3 November 2015 when it became appraised of the orders made on that day is puzzling. 2. The failure of the appellant to re-test the matter promptly is only explicable on the ground that there was a directions hearing fixed for 15 December 2015. 3. Further, the notification provided to the appellant of the orders by the respondent does not truly reflect the orders that were made and are themselves somewhat confusing. The email forwarded by the solicitor for the respondent to the appellant's solicitor has been set out at [11] above. 4. No mention was made in that email of the fact that the proceedings remained listed for directions on 15 December 2015. It was this fact upon which the appellant claims it concentrated and it believed that it would be able to, on that day, seek an extension of time for the payment of the $12,000 and for the provision of the evidence. 5. The payment of the $12,000 and the provision of the evidence was made by 30 November 2015. No prejudice has been pointed out by the respondent by reason of the fact either that such payment or the receipt of the reports were beyond the times fixed by the Tribunal when it made ex parte orders on 3 November 2015 and no objection was taken to the later service of the report nor of the late costs payment. The appellant's solicitor simultaneously notified the respondent's solicitor that rectification costs were now $1,833,078 and that it would be necessary to transfer the proceedings to the Supreme Court. Further, it was open to the appellant, on 15 December 2015 to seek an extension of time either under Reg 9(1)(b) combined with the power provided to the Tribunal under s41 of the NCAT Act to seek an extension. Section 41 provides: 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. 1. An analogous statutory provision to s41 of the NCAT Act was considered by the High Court of Australia in FAI General Insurance Co Limited v Southern Cross Exploration NL (1988) 165 CLR 268. 2. At [23] Wilson J referred to the very broad discretion, which,. His Honour said, "is not readily to be limited by judicial fiat". The rule under consideration (Supreme Court Rule 1970 (NSW) Pt 2, r3, Pt 40, r9(4), (5) is virtually identical in effect to s41 of the NCAT Act. The High Court dismissed an appeal from the Court of Appeal (NSW) which found that the rule applied to enable the application to set aside a decision to succeed. 3. The Court limited the principle in Bailey v Marinoff and in Gamser v Nominal Defendant to the facts of those cases, and particularly to the fact that, in that matter, the power being exercised was the inherent jurisdiction of the Supreme Court. 4. I am satisfied that the same principle should be applied in this appeal. I am also satisfied that a grave injustice would result if the orders of 3 November 2015 had the effect as alleged intended for by the respondent. 5. On 15 December 2015 it was open to the Tribunal to apply the provisions of ss41 and also the provisions of Reg 9 to effectively set aside the orders made on 3 November and to extend time for compliance with orders concerning the payment of moneys and the provision of evidence by the appellant. I am satisfied that a substantial miscarriage of justice will otherwise occur. 6. I consider that despite the relevant principles concerning the delay in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at, for example, [103], this is an instance where it will grant an extension of time. There is no suggestion that the appellant intended to abandon its claim. The magnitude of the claim is substantial. It is for this reason that the appellant also sought to have the proceedings transferred to the Supreme Court of New South Wales for determination. 7. Clause 6 of Schedule 4 of the NCAT Act empowers the Tribunal to transfer proceedings to other courts, either by consent or of its own motion: see 46(1) of Schedule 4 of the NCAT Act. I consider the objects of the NCAT Act namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings (see s36(1) of the NCAT Act), and the interests of justice. the amount involved ($1.8m) and the complex issues which are likely to arise in the proceedings demand that the proceedings be transferred forthwith to the Supreme Court of New South Wales. Indeed, once there appears to be evidence of a claim in excess of the statutory jurisdiction of the Tribunal ($500,000.00) the matter should be transferred to the Supreme Court: Owners Strata Plan No 70030 v Deacon Australia Pty Ltd [2014] NSWSC 347. 8. Significantly, the respondent expressly disavows that it would suffer any prejudice, except for the costs it has incurred. 9. I would therefore, pursuant to s 41 of the CAT Act extend the time by which the appellant was to make any application under Regulation 9 of the Regulations to set aside or vary orders made on 3 November 2015 to 11 January 2016, being the date of filing of the Notice of Appeal. I would then vary the 3 November orders as set out below, such that the filing and service by the appellant of the additional evidence, and the payment of the $12,000.00 on the dates on which those events occurred complies with the orders as varied. 10. The consequence is that I would allow the appeal. 11. We have jointly dealt with costs below. Coleman SC 1. I have joined in the reasons of Cowdroy QC ADCJ in deciding that the Tribunal erred in concluding on 15 December 2015 that it did not have the power to set aside or vary the orders made on 3 November 2015. I agree that, rather than remitting the matter to the Tribunal, the Appeal Panel should consider the relevant matters and exercise the discretion under Regulation 9. I disagree with his Honour, however, as to the result of the exercise of the discretion by the Appeal Panel. I have formed the view that the appellant ought not be allowed to have the time by which it ought to have applied to set aside or vary the orders of 3 November extended. 2. As his Honour's opinion prevails as the Presiding Member, I can state my reasons for reaching a different conclusion more shortly than I otherwise would. 3. The appellant's solicitor conceded that when she received the email from Ms Malouf on 3 November 2015 notifying her of the orders made that day, she knew that a guillotine order had been made the effect of which was that if her client did not make payment of the $12,000.00 costs by 10 November 2015 the proceedings would be dismissed forthwith. She conceded that she understood that this meant that non-compliance by her client with that order by 10 November 2015 would mean dismissal of the proceedings without further order of the Tribunal. As such, any confusion which may have arisen in her mind as to the meaning of the orders as a result of the text of the email from Ms Malouf being different from the exact orders made that day, if such confusion existed which is questionable, becomes irrelevant. 4. She also accepted that she received a copy of the Tribunal's orders of 3 November on or about 5 November and, again, she understood that the effect of those orders was that if her client did not pay the $12,000.00 by 10 November 2015, the proceedings would stand dismissed. 5. The appellant's solicitor asserts that she was further confused by the email of 12 November from Ms Malouf (which stated that the respondent was to apply for the proceedings to be dismissed) and the contrary position as stated in the respondent's letter to the Tribunal dated 2 December 2015. However, in light of her concession that she understood on and from 3 November 2015 that if the $12,000.00 was not paid by 10 November 2015 the proceedings would stand dismissed, it is difficult to accept that there was a basis for any confusion from correspondence which post dated the time by which the 3 November orders had to be complied with. 6. The appellant's primary complaint about the guillotine order made on 3 November 2015 is that it was made ex parte as it's solicitor was not notified of the hearing on that date. Yet, having been notified of the orders that day and understanding the effect of them, the appellant's solicitor did nothing to seek to have the matter re-listed before the Tribunal. When asked why this was so the appellant's solicitor said that she knew the matter was listed for directions on 15 December 2015. She said she thought that by that time the things required to be done by the 3 November orders would have been completed. She said that if that was the case, in her experience the Tribunal would on 15 December excuse the earlier failure to comply and vary the orders such that the proceedings would continue. When pressed on this issue she accepted that understanding that the proceedings would be dismissed if the $12,000.00 was not paid by 10 November, she was taking the risk that the Tribunal would allow the matter to proceed on 15 December (assuming all other things required to be done were done). 7. In my opinion, the best that can be said about this approach is that it is cavalier. At worst it amounts to professional negligence. No evidence was provided by the appellant as to why the orders made on 1 September 2015 or 3 November were not complied with. We were simply left with the "explanation" by its solicitor that she was prepared to take the risk that the Tribunal would excuse the breach if all matters had been complied with by 15 December. In my opinion, that is no explanation at all. 8. In order to have the order dismissing the proceedings set aside or varied under Reg 9, the appellant needs to satisfy us that the absence of the appellant at the time the order was made resulted in the appellant's case not adequately being put: Reg 9 (1)(b). The problem for the appellant, in my opinion, is that in the complete absence of any evidence as to why the appellant had failed to comply with the 1 September orders, which would have been a relevant matter had the appellant appeared at the 3 November hearing, the appellant cannot show that it's absence prevented its case being put. Put another way, if the appellant had appeared on 3 November and resisted the orders being made that day, surely it would have required some evidence as to why the $12,000.00 had not been paid and when it would be paid. Similarly, with respect to the service of the additional evidence, an explanation would have been required as to why it had not been served in accordance with the extant orders and when it was to be served. The appellant has not provided any such evidence to the Appeal Panel and did not provide any such evidence to the Tribunal on 15 December. I am not prepared to infer, in those circumstances, that it would have provided any such evidence to the Tribunal on 3 November 2015. In my opinion, therefore, the appellant cannot satisfy the requirement in Reg 9(1)(b). 9. Even if I am wrong on that point, unless an application for an extension of time under s 41 of the CAT Act is made, an application to set aside or vary the dismissal order made on 3 November, which took effect on 10 November was required to be made within 7 days of the decision being made: Reg 9 (3). In this case the application would therefore need to be made by 10 November. 10. In the course of the appeal, the appellant was asked whether it made an application under s41. It said it did. 11. Having made the application for an extension under s41, the appellant must satisfy the Appeal Panel that it should exercise its discretion to grant the extension. The principles applicable on such applications were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. In summary, and without referring to the authorities there cited, those principles are: 1. the party seeking the exercise of the discretion must show that strict compliance with the rules will work an injustice upon it; 2. the discretion is to be exercised in light of the fact that the respondent to the appeal has already obtained a decision in its favour and has a "vested right" to retain the benefit of that decision; 3. the Appeal panel must consider: 4. the length of the delay; 5. the reason for the delay; 6. the appellant's prospects of success; and 7. the extent of any prejudice to the respondent. 1. In this case in my opinion, the appellant cannot show that strict compliance with the rules will work an injustice on it. That is because it cannot show that if it appeared at the 3 November hearing, it may have succeeded in achieving a different outcome. Nor can it explain why it didn't comply with those orders. Why in those circumstances should it be concluded that the rules work an injustice against it? In the circumstances, it seems to me that the appellant can provide no satisfactory answer to that question. The appellant thus fails at this first hurdle. 2. I am prepared to calculate the length of the delay as from 10 November 2015, being 7 days after the orders were made, to 15 December 2015 when at the hearing before the Tribunal the appellant argued that Reg 9 applied (even though it did not formally make an application under s 41 to extend time). On that basis, I am prepared to accept that the length of the delay is a relatively neutral factor. 3. As to the explanation for the delay, however, in my opinion, for the reasons I have set out above, there is no explanation for the appellant's delay. As such, this is another reason I do not think that the appellant can succeed. 4. Finally, as to the extent of prejudice to the respondent, even though counsel for the respondent conceded that any prejudice to the respondent can be cured by an order for costs, that may not be so. The respondent will now have to face a significant claim which must be transferred to the Supreme Court with the attendant delays and costs. In any event, as I do not consider the appellant can show that a strict compliance with the rules will work an injustice against it, nor that it has any explanation for its delay in seeking to set aside the orders, we do not get to this discretionary consideration. 5. I also observe that, in so far as the appellant submitted that if the proceedings remain dismissed, it would be time barred from commencing fresh proceedings, there is no evidence or material before the Appeal Panel on which such a conclusion could be reached. The appellant's solicitor simply made the submission, without an analysis of or reference to the bases of the appellant's claims and the relevant statutory provisions. In my opinion, in so far as this is a relevant consideration for the present application, the appellant would need to do more to satisfy the Appeal Panel that it would be prevented from commencing fresh proceedings for some or all of the relief it now claims. 6. For those reasons, I would not be prepared to extend the time for the appellant to make an application under Reg 9. I would therefore dismiss the appeal. 7. I agree with his Honour that, as a consequence of the appeal being allowed, the proceedings must be transferred to the Supreme Court. I also agree with the costs orders, and the reasons for them set out below. Costs 1. The Appeal Panel heard brief submissions as to costs. Since the claim involves an amount in excess of $30,000.00 the Appeal Panel may award costs even in the absence of special circumstances: see Rule 38(2) of the Civil and Administrative Tribunal Rules 2014. 2. We are of the view that the costs of the proceedings, including the appeal, should be paid by the appellant. Indeed, we are of the view that the findings we have made about the repeated failures of the appellant from the time it breached the 1 September orders and it's continuing failure to comply with the Tribunal's orders and the cost and expense thereby incurred by the respondent, warrants an order that such costs be paid on the indemnity basis. 3. The conduct outlined above shows at best a lack of care and diligence to ensure that it was ready to prosecute proceedings brought by it in the Tribunal. At worst, it displays a complete disregard for the Tribunal's orders and directions. It is difficult to know whether such conduct falls at the feet of the appellant or its solicitor. That is because there has been absolutely no evidence placed before us as to the involvement of the appellant. For example, there is no evidence as to why the appellant did not comply with the 1 September orders. Nor is there any evidence that it was not notified of the orders of 3 November or if it was, why it failed to comply with them. We only have the submissions of the appellant's solicitor. 4. In so far as the appellant's solicitor's conduct is concerned, there are many matters in the evidence which raise concerns as to her responsibility for the position the appellant now finds itself in. She stated that she was confused after notification of the 3 November orders of their effect. There is some doubt as to whether or not, in circumstances where she accepts that she knew on receipt of Ms Malouf's email of 3 November and on receipt of the Tribunal's orders on or about 5 November that a guillotine order had been made that required her client to pay the $12,000.00 by 10 November, that such a statement can be accepted. If it is accepted, then in those circumstances, both prudence and good professional conduct required her to clarify the position with either the respondent or with the Tribunal. She did neither. She can provide no real explanation for not doing so. Further, the evidence showed that she had previously ignored approximately ten emails from the respondent's solicitor as to her client's compliance with the Tribunal's orders. We have nothing before us which suggests that the appellant is aware of such failures. 5. As a professional legal practitioner, such conduct approaches professional negligence. In the circumstances, we are minded to order that the costs be paid by her personally. Such a power is available: s 80(4)(a) of the CAT Act. Before we determine whether this course is appropriate, and as the matter was not raised with the solicitor for the appellant at the hearing of the appeal, we think it only fair that she have an opportunity to make submissions on this issue. We will therefore direct that within 14 days of receipt of these reasons, the solicitor for the appellant file and serve submissions, of no longer than 10 pages in length, as to why she should not be personally ordered to pay the costs of the proceedings, including costs of the appeal, on the indemnity basis. Orders 1. The Appeal Panel is comprised of two Australian lawyers. As the members are equally divided in their opinion, the provisions of s 57(3)(b) of the CAT Act applies with the consequence that the decision of the Presiding Member prevails. 2. The Appeal Panel orders: 1. That pursuant to s41 of the CAT Act the time by which the appellant was to make an application pursuant to Reg 9 of the Civil and Administrative Tribunal Regulations 2014 (the Regulations) to set aside or vary the orders made 3 November 2015 be extended to 11 January 2016. 2. Pursuant to Rule 8 of the Civil and Administrative Tribunal Rules 2014, the requirement that the application pursuant to s 41 referred to in order 2 above be in writing is dispensed with. 3. That the orders made by the Tribunal 15 December 2015 be set aside. 4. That pursuant to Regulation 9 of the Regulations, the orders made 3 November 2015 be varied as follows: Order 2 to read: The date for compliance with orders 3 and 4 made on 1 September 2015 is extended until 27 November 2015; Order 3 to read: The date for compliance with order 6 made on 1 September 2015 is extended until 30 November 2015. 1. That pursuant to clause 6 of Schedule 4 of the NCAT Act, the proceedings in the Tribunal No HB 14/58159 be transferred to the Supreme Court of New South Wales; 2. Subject to order 7 below, the appellant pay the respondents costs of the proceedings on the indemnity basis such costs payable forthwith. 3. Within 14 days from the date of publication of these reasons, the appellant's solicitor provide written submissions, no longer than 10 pages I0 length, as to why she should not be personally ordered to pay the costs referred to in order 6 above. 4. A copy of the Appeal Panel's reasons for its decision is to be provided to the appellant by the appellant's solicitor within 7 days of the date of this decision and the appellant's solicitor is to file an affidavit within 14 days from the date of the decision verifying compliance with this order. I hereby certify that this is a true and accurate record of the reason 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 29 June 2016 - para 105 contained grammatical/nomenclature error 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: 29 June 2016