Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Oh v Grima [2016] NSWCATAP 239 Hearing dates: 29 September 2016 Date of orders: 09 November 2016 Decision date: 09 November 2016 Jurisdiction: Appeal Panel Before: I H Bailey SC, Senior Member R Titterton, Senior Member Decision: (1) The appeal is dismissed. (2) The decision under appeal is affirmed. (3) In relation to costs: (a) any submission as to the costs of the appeal by the Appellant is to be made by filing and serving on the Respondent written submissions within 14 days after publication of this decision; (b) the Respondent is to file and serve on the Appellant submissions in reply within a further 14 days; (c) any such application will then be decided on the papers. Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: A & N Holdings NSW Pty Ltd v Andell Pty Ltd [2006] NSWSC 55 Anderson Street Banksmeadow Pty Ltd v JCM Contracting Pty Ltd [2014] NSWSC 102 CKG v Public Guardian [2014] NSWCATAP 32 Edward Moses Obeid Snr v David Ipp [2016] NSWSC 1376 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Roberts v Nursing and Midwifery Board of Australia [2016] NSWCATOD 129 Shayer v Byron Bay Retirement Village Pty Ltd [2016] NSWCATAP 184 Stead v Government Insurance Commission (1986) 161 CLR 141 Category: Principal judgment Parties: Ju- Sik Oh (Appellant) Valentine & Marion Grima (Respondents) Representation: Counsel: B Douglas-Baker (Appellant) R Zikmann (Respondents) Solicitors: Balmain Lawyers (Appellant) Marc Hutchings & Associates (Respondents) File Number(s): AP 16/31301 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 3 June 2016 Before: G Meadows, Senior Member File Number(s): HB 15/30174 and HB 15/38304 REASONS FOR DECISION Summary 1. This is an appeal by the appellant Mr Ju-Sik Oh (the Builder) from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) made on 22 April 2016 and confirmed in Reasons dated 3 June 2016. 2. For the reasons that follow, the Appeal Panel has dismissed the appeal. Background 1. There were two matters before the Tribunal arising under a contract between the Builder and Mr and Mrs Grima (the Homeowners). Those matters were: 1. The application of the Homeowners, HB 15/30174. The Homeowners claimed $100,163.24 in respect of incomplete and defective works. 2. The application of the Builder, HB/38304. The Builder claimed $72,250 for unpaid works, alternatively $154,400 as a quantum meruit. 1. The procedural histories of both matters, insofar as the Builder is concerned, are referred to below. 2. The Tribunal refused the application by the Builder to vacate the hearing of both matters, which were fixed for hearing on 22 April 2016, and for a fresh timetable for the service of evidence to be ordered in both matters. The Tribunal's decision also precluded the Builder from relying upon certain evidence which had been filed just prior to the hearing. 3. The decision of the Tribunal meant that there was effectively no evidence in support of the Builder's application, HB/38304 and there was no evidence in defence of the Homeowners' application, HB 15/30174. The latter application accordingly proceeded on 22 April 2016, and the decision was delivered on 2 August 2016. The outcome of this appeal therefore has a potential consequence in that matter. 4. The Builder's application to vacate in both proceedings was effectively made by the letter from Balmain Lawyers dated 11 April 2016 which, after explaining its intended effect as a "motion" was in the following terms: I propose that the member hearing the matter on 22 April 2016 should address the following matters: 1. Upon the basis of the Affidavit of the writer affirmed on 11 April 2016, the hearing of these proceedings be vacated. 2. The respondent in proceedings HB 15/30174 be granted leave to rely upon the report of David Plaister and the affidavits of John Lee and Ju-Sik Oh. 3. The applicant in proceedings HB 15/38304 be allowed until 13 may 2016 to serve any evidence upon which it relies in respect of this matter, including a report by David Plaister. 4. The experts of both parties be ordered to undertake a conclave as soon as convenient after 13 May 2016. 5. The parties be instructed to undertake mandatory mediation once the joint report of the experts has been provided to each of the parties, post the conclave particularised in paragraph 4 above. 6. Should the mediation be unsuccessful then either party may seek a date for hearing of both matters. 1. It seems that the lengthy Affidavit, referred to in subparagraph 1, may not have been served on the Homeowners' solicitors. This would have created a difficulty for the application to vacate, even if it were to be conducted by a legal practitioner. 2. After sending the letter to the Tribunal on 11 April 2016, it seems that from that date Balmain Lawyers ceased to act for the Builder. The result was that he was not represented by a legal practitioner at the hearings on 22 April 2016. Having regard to his limited capacity with English and his complete unfamiliarity with the procedure for hearings in the Tribunal, he was therefore at a serious disadvantage. 3. The Builder nevertheless was able to arrange for Ms Janice Matthias, a non-lawyer, to assist him in making his application. Notice of Appeal 1. The Builder raises two grounds of appeal in his Notice of Appeal filed on 6 June 2016. 2. The first ground of appeal involves the issue of representation on behalf of the Builder at the hearing on 22 April 2016, and primarily comprises a contention that the Builder was denied procedural fairness, by reason of there being an absence of a right to be heard contrary to s 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) and the general law. This ground amounts to an error of law. Accordingly, the issue under the first ground is appealable as of right pursuant to s 80(2)(b) of the Act. 3. The second ground of appeal, which concerns the decision of the Tribunal to refuse the Builder leave to rely on recently filed evidence, involves an interlocutory decision and, as such, leave is required under s 80(2)(a) of the Act. However, the decision to refuse leave to the Builder to rely upon the late evidence had the consequence that his application, HB 15/38304, was effectively dismissed for want of evidence. As such leave to appeal may not be necessary: Collins v Urban [2014] NSWCATAP 17. 4. In any event, while there was no formal grant of leave, the hearing of the appeal proceeded on the basis that there had been. Representation 1. Section 38(5)(c) of the Act addresses procedural fairness and provides: The Tribunal is to take such measures as are reasonably practicable: . . . (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. 1. Section 45 of the Act addresses the representation of parties before the Tribunal and relevantly provides: Section 45 Representation of parties (1) A party to proceedings in the Tribunal: (a) has the carriage of the party's own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave: (i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner—for a particular or any Australian legal practitioner to represent the party. . . . (3) The Tribunal may at its discretion: (a) grant or refuse leave under subsection (1) (b), and (b) revoke any leave that it has granted. 1. Further, rr 31 and 32 of the Civil and Administrative Tribunal Rules 2014 (the Rules) are also relevant and provide: Division 2 Representation of parties 31 Application for leave to represent a party (1) An application by a person under section 45 of the Act for leave to represent a party to proceedings may be made orally or in writing at any stage in the proceedings. (2) In making an order granting leave to a person to represent a party to proceedings, the Tribunal may impose such conditions in relation to the representation as the Tribunal thinks fit. 32 Granting and revocation of leave for a person to represent party (1) In dealing with an application under section 45 of the Act for leave to be granted to a person (other than an Australian legal practitioner) to represent a party to proceedings, the Tribunal is to have regard to: (a) such of the following circumstances as it considers are relevant to the proceedings: (i) whether the proposed representative has sufficient knowledge of the issues in dispute to enable him or her to represent the applicant effectively before the Tribunal, (ii) whether the proposed representative has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings, (iii) whether the proposed representative is vested with sufficient authority to bind the party, and (b) any other circumstances that it considers relevant. 1. It is accepted that consideration of the first ground of appeal is to be focussed upon the material that was before the Tribunal, and what occurred at the hearing on 22 April 2016. There is much material in the folders prepared for the appeal which was not is relevant to our deliberations. The Transcript of the hearing is relevant, and was referred to extensively by both parties in the course of the hearing before us. 2. The Builder in his submissions drew attention to differences between the Transcript of the hearing on 22 April 2016 and the terms of the decision published on 3 June 2016. We consider that the record in the Transcript is the best reference for an assessment in such a case. Accordingly, our deliberations were focussed almost entirely upon the record in the Transcript. 3. The Builder was unrepresented at the hearing, and attended with an interpreter and Ms Matthias, who the Builder had met whilst carrying out building work on her property. She had arranged for him to engage Balmain Lawyers in place of his former solicitors. 4. Central to the first ground of appeal is the contention that the procedure adopted by the Tribunal in relation to the role of Ms Matthias resulted in the Builder being denied procedural fairness. The Builder submits that the Tribunal ought to have focussed its enquiries upon the Builder personally, rather than to Ms Mathias. 5. The Builder contends that the Tribunal ought to have recognised that he was unrepresented at the hearing, and accordingly addressed questions concerning the basis for the application to him personally, rather than to Ms Matthias. Thus, it is submitted, the Builder was denied a "reasonable opportunity to be heard". 6. Ms Matthias, being in unfamiliar territory and without legal qualifications, had prepared a three page statement, which she requested that the Tribunal permit her to read. 7. In the Appellant's Submissions dated 19 August 2016, the Builder submitted that the Tribunal ought to have made enquires of the Builder and, if it had done so, would have ascertained certain facts about which the Tribunal would otherwise have no knowledge. 8. Further, it is submitted that the Tribunal should have taken certain steps to ascertain various matters concerning the Builder's understanding of the proceedings generally, and the conduct of the application to vacate. 9. The Builder also submits that the Tribunal ought to have made enquiries of him of certain aspects of the role of Ms Matthias. It is suggested that the Tribunal ought to have considered allowing Ms Matthias to assist the Builder as a "McKenzie friend". (This is a reference to the decision of McKenzie v Mckenzie [1971] P 33; [1970] 3 All ER 1034). Consideration 1. Section 45(1)(b)(ii) of the Act permits "another person", who is not a lawyer, to represent a party. Rule 31 of the Rules permits that other person to make an application to do so, and r 32 identifies matters to which the Tribunal is to have regard, including particular circumstances which it may consider relevant. 2. The capacity to permit 'another person' to represent a party before the Tribunal is an understandable product of the objects of the Act which are set out in s 3 of the Act, particularly (c), (d), (e) and (f). 3. The permitted representation does not equate to legal representation per se. Section 45 of the Act permits a party to be represented by "another person", not necessarily a legal practitioner. Such a representative would seem to have greater authority than a mere assistant, as permitted occasionally for litigants in person to appear with a McKenzie friend, with the limited authority, as explained in Ritchie's Uniform Civil Procedure NSW at par 7.1.30. 4. The Builder's Submissions contend that the Tribunal ought not to have granted leave to Ms Matthias to speak, as expressed at Transcript page 4.28 to .31, or by purporting to grant leave for her to "represent" the Builder: I am going to give you leave to speak on a limited basis that you have a document before you that you want to speak to me about, I presume. Other than that, I am not granting you leave…. 1. It is said on behalf of the Builder that, when it was apparent that Ms Matthias wished to speak in support of the Builder, the Tribunal ought to have had regard to the considerations as set out in r 32(1)(a) of the Rules. 2. The circumstances set out under r 32(1)(a) are to be considered by the Tribunal if it considers them "relevant to the proceedings". It is clear from the Transcript that the Tribunal did not expressly address these matters. We consider, however, that the Tribunal could, and probably did, conclude on the basis of the written and oral presentation by Ms Matthias, that she clearly satisfied the 'requirements' of a proposed representative as set out in r 32(1)(a)(i) to (iii). 3. The "grant" of leave, referred to in par 30 above, may at first have seemed quite limited, but the implementation of the "leave" by way of the oral submissions of Ms Matthias was not limited. We understand that the informality under which the Tribunal is required to conduct proceedings will, on occasions, mean that procedures, such as granting leave to a representative, will be abbreviated. If this occurs and the procedure is later questioned, then the primary issue will be whether the party concerned lost an opportunity to present their case. 4. For the reasons below, we conclude that Ms Matthias was in fact the representative of the Builder during the hearing before the Tribunal and that, far from being disadvantaged by her undertaking of that role, the Builder was in effect ensured of the right to be heard. 5. Further, in the circumstances, we conclude that the Tribunal did not fall into error by treating Ms Matthias as being the Builder's representative as permitted by s 45 of the Act, or in granting her the leave noted in par 30. 6. On the basis of these conclusions, it follows that the Tribunal was not in error by failing to make enquiries of the Builder as set out in par 15 (a) to (f) of the Appellant's Submissions, or not the taking the steps set out in par 16 (a) to (d), or further, by not making the enquiries of the Builder concerning the role of Ms Matthias as contended in par 18. The Hearing 1. The circumstances which prevailed at the commencement of the hearing could not be described as typical. The Builder was clearly not represented by legal practitioners. There had been correspondence, set out above, from Balmain Lawyers foreshadowing, or making, an application to vacate the hearing and that further time be allowed for the Builder to serve evidence in both matters. There had recently been filed with the Tribunal material on behalf of the Builder, some of which was referred to in the 11 April 2016 letter of Balmain Lawyers. 2. There appears to have been some understandable confusion as to who was in attendance at the hearing and what their roles were. The attendance of two interpreters did not assist this process. 3. Experienced legal practitioners are familiar with the process of "announcing" who appears, who instructs, and who is otherwise attending. The unfamiliarity of Ms Matthias, with this process is perfectly understandable. The Builder identifies the very first questions by the Tribunal as being part of the events comprising the failure to ensure procedural fairness: Tribunal Member: who is appearing for, I presume Mr and Mrs Grima? Zikmann: Zikmann, Member Tribunal Member: Mr Oh? Applicant: Yes Tribunal Member: You're the interpreter? Matthias: No, nobody. I'm just – I'm a normal citizen and I am not any legal expertise. I am here to support Jimmy because (he) has limited English, and I only wish to speak to the application that the Tribunal has to vacate the hearing. So can I give you this? 1. We do not consider that there is anything discourteous in the question which was responded to by the Builder. The Tribunal was merely asking who appeared for him. The next question was addressed to Ms Matthias. Her response made it clear that she was not a lawyer and was "here to support Jimmy" and to "speak to the application that the Tribunal has to vacate the hearing". 2. The words used by Ms Matthias are, it seems to us, consistent with those which might be used by a non-lawyer seeking to assist a party and, possibly in so doing, act as a representative of that party. 3. For the reasons below, we also do not accept that the failure to direct further questions to the Builder amounted to a failure to ensure procedural fairness. It seems that reasonably soon after these first questions, it became clear to the Tribunal, that in addition to the Builder requiring the assistance of an interpreter, he also required the assistance of Ms Matthias to present his case, and in so doing, to act in the limited manner permitted by s 45 of the Act as his representative. 4. Shortly after the questions in par 39, Mr Zikmann referred to the issue of representation, the application of s 45 of the Act, the need for an application for leave to be made and for leave to be granted. The Tribunal then spoke to Ms Mathias, recorded her name and proceeded as follows: Tribunal Member: You are not a solicitor? Matthias No, I'm terrified and totally intimidated but I would like to be able to speak. Tribunal Member: All right. And what is your relationship with Mr Oh. Matthias I am a friend of Mr Oh. He has done work for me, and during the course of that work, I became aware of the problem that he had and it's explained here. 1. Following a short interruption to deal with the interpreters, the Tribunal referred to the lengthy procedural history since 15 May 2015 and the non-compliance by the Builder with directions. Immediately following the grant of leave noted in par 30 above, the discussion between Ms Matthias and the Tribunal continued: Tribunal Member: And if there is an application to vacate today, it would have to be a really splendid application for me to allow, madam. I am not joking about it. Matthias: I wasn't – Tribunal Member: I'm not suggesting you won't take it seriously. The matter has been listed a number of times. A considerable body of evidence has been provided on both sides. I haven't read it all but I have flipped through it so I've got a rough idea of what's there. What are you looking for today? Matthias: I am only here to support the – as best I can the application to vacate. Obviously I can't stand here and represent Jimmy. I have no qualifications whatsoever. But without – he had no alternative but ask me to come and, plead with you if it can be a later date. If I could read from my prepared words because I am not able to express without reading. 1. The Tribunal referred to the interests of both parties and the need to balance those interests, and then continued to address Ms Matthias: 2. Tribunal Member: And if there is going to be any application to vacate, don't bother pleading. Tell me why it will be just and reasonable that I vacate. Matthias: Okay. Please ………..words because I am really out of my depth here. But I did prepare this and it covers what I had to say to convince you. So if I could read - - 1. The Tribunal requested that the three page document, prepared by Ms Matthias be handed up and then read through it. In the circumstances, this was a reasonable course and did not, in our opinion, require the Tribunal to consult the Builder as to whether he was content with this. The Homeowners' counsel also read Ms Matthias's document. 2. The Tribunal then asked Ms Matthias whether there was "anything you wish to add to her written statement" and Ms Matthias responded, referring in some detail to the matters raised in her document. Counsel for the Homeowners then responded by detailing the extensive non-compliance by the Builder with the directions of the Tribunal. We refer to the details of that default, what was involved and the consequences in pars 64 to 86 below. 3. Ms Matthias responded and pressed the position of the Builder with clear and tenacious conviction. Her submissions and discourse with the Tribunal extend over eight pages of the Transcript. 4. Counsel for the Builder has emphasised the point that leave was not expressly granted by the Tribunal for Ms Matthias to be a representative for the Builder. While it is possibly regrettable that this formality did not occur, we do not consider that this had any material consequence for the Builder. 5. We do not doubt that the Tribunal regarded Ms Matthias as having the role as the Builder's representative and further, that she conducted herself in that role courteously, and articulately. As the Tribunal stated (allowing for a correction by the Tribunal): "I am also grateful for . . . Ms Mathias, not only for undertaking this task, but for the trouble she has gone to in preparing a statement with supporting documents. It is amazing how often we are faced with a very serious application by people who turn up and say, "Yeah, I'm not ready. I need more time, but I haven't got anything in support." And the other side says, "We object and we haven't got anything in support, either." and the Tribunal is supposed to make a decision based on that, and it is certainly not the case here." 1. Ms Matthias may have considered that she was not 'representing' the Builder in the sense involved in a legal representation. However, we do not accept that it is correct to conclude that she was not acting as his representative in the sense contemplated by s 45 of the Act. 2. Further, a careful reading of the document she prepared, and the record of her oral statements in support of the Builder's application to vacate as set out in the Transcript, disclose that the Builder's position was pressed articulately and with conviction. The document and the oral submissions of Ms Matthias addressed many of the matters referred to in par 15 of the Builder's Submissions. 3. We conclude that the Builder was afforded a reasonable opportunity to be heard, albeit by way of Ms Matthias as his representative. The manner in which Ms Matthias expressed herself in the three page document, and in her oral submissions to the Tribunal meant that, even if not heard personally, the Builder did have the required reasonable opportunity to have his case heard by the Tribunal. 4. This finding disposes of the first ground of appeal. We understand that consideration of the second ground of appeal would only have been necessary if the first ground succeeded. 5. There are however a number of additional matters which we consider we should address. Separate Considerations 1. The first involves a separate approach to contentions as to the claimed breach by the Tribunal of s 38(5)(c) of the Act. 2. The second is the submission by counsel for the Homeowners that although the decision by the Tribunal was not expressed to be made pursuant to the power under s 55 of the Act for the Tribunal to dismiss proceedings, it could be regarded as having the same effect. This second issue brings into focus the question of what constitutes, in s 55(1)(d) of the Act, a "want of prosecution of the proceedings". 3. In this last respect we consider it appropriate to refer to the series of failures by the Builder to comply and review the degree to which a party to proceedings in the Tribunal must suffer the consequences of evident failure by their legal representatives. 4. The first ground of appeal focussed upon the breach of procedural fairness involving the absence of "a reasonable opportunity to be heard" in breach of s 38(5)(c) of the Act. 5. We observe that the obligation upon the Tribunal in s 38(5)(c) provides an alternative to "a reasonable opportunity to be heard", being that the parties "otherwise have their submissions considered by the Tribunal". The relevance of this alternative consideration to this appeal was not addressed by the parties. 6. This alternative seems to have particular application in circumstances where the party is represented pursuant to s 45 of the Act. In these proceedings the Builder was, as we have found, in such a position. It follows from our finding at par 53 above that the Builder in fact had his "submissions considered by the Tribunal." We have noted above that this alternative in s 38(5)(c) of the Act was not argued during the hearing of the appeal. 7. Counsel for the Homeowners submitted that the Tribunal, in the circumstances having regard to the extent of default on the part of the Builder, could have exercised the power under s 55 of the Act to dismiss the Builder's claim and the defence to the Homeowners' claim. Section 55 provides: Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: . . . (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. 1. To assess whether the circumstances of non-compliance on the part of the Builder amounted to "a want of prosecution of the proceedings" under s 55 of the Act we have summarised below the events insofar as they are identified in the material before us. 2. Procedural History – Builder's Default in Both Matters 3. In early May 2015, the Builder, having received correspondence from the Tribunal concerning the Homeowners application HB 15/30174, was introduced to a solicitor, Mr Melvin Gan, of Clamenz Lawyers. Mr Gan requested that the Builder sign a letter of authority to act addressed to the Tribunal in these terms: I refer to the above proceedings. I give authority to Melvin Gan of Clamenz Lawyers, a solicitor, to represent me in these proceedings. He has my permission to make decisions in my absence that are binding on me. 1. On 13 May 2015, Mr Gan sought an adjournment of the directions hearing scheduled for 14 May 2015. This application was refused. 2. On 14 May 2015, a directions hearing took place. Relevantly, the Tribunal ordered that the Builder lodge any cross application on or before 1 June 2015, including: the orders sought reasons for the orders sought together with full particulars: monetary amount for each claim copy of all invoices, receipts, statements, statutory declarations and other written material relied upon 1. Leave was granted for legal representation by both parties, and an order that the application and cross application proceed together. 2. Also on 14 May 2015, the Builder's abbreviated Response in HB 15/30174 was lodged. 3. On 11 June 2015, the Builder's Cross application HB 15/38304 was lodged, having been signed by the Builder. Annexure A to this document is a detailed Points of Claim, which appears to have been prepared by a person with some detailed understanding of the Builder's case. 4. On 16 June 2015, a further directions hearing occurred and the Builder was ordered to file and serve in the Homeowners' claim: a copy of all documents including Points of Defence and a Reply to the Scott Schedule …on which the builder intends to rely at the hearing on 1 September 2015 IMPORTANT NOTE For the purpose of these directions "document" means: -Witness statements / statutory declarations of affidavits -Expert Reports -Photographs -Accounts or receipts -Quotations -Any other document relied upon All documents must be legible … and in the Builder's claim: Points of Claim and all documentary material in support by 4 August 2016 1. There was some delay on the part of the Homeowners and, at the directions hearing on 8 September 2015, the Builder was ordered, following service of further material by the Homeowners on 16 October 2015: to file and serve all documents upon which it intends to rely on or before 16 November 2016. 1. It would appear that, apart from the Response referred to in par 68 above and the Cross-application referred to in par 69 nothing had been done on behalf of the Builder. 2. On 19 November 2015, the representative of the Builder, apparently still Mr Gan, who was at this stage employed by Vinci Lawyers, sought an extension of time to comply with procedural directions made on 8 September 2015. This application was to be considered at the next directions hearing on 30 November 2015. 3. On 30 November 2015, a further directions hearing was conducted by the Tribunal. We assume Mr Gan was in attendance, because the record of the directions would appear to have been emailed to his email address. Orders were made, relevantly including: 2. The builders experts will inspect the premises before 19 December 2015 and with 48 hours notice in writing to the homeowners solicitor. 3. The builder shall provide to the homeowners and the Tribunal a copy of all documents on which the builder intends to rely in relation to both a response to the homeowners application and in relation to his cross application by 15 January 2016. That is to include all relevant points of claim, any amended points of defence, expert evidence, lay evidence and relevant scott schedules. 1. Significantly, the Tribunal as part of the orders made, stated: This initial application in this matter was made on 28 April 2015. Given the delay in this matter to date, any further requests for extensions of time or adjournment will only be allowed in exceptional circumstances. If a party requires an extension of time to comply with these directions, an application should be made in writing to the Registrar no later than the day prior to the date of submission of documents to the Tribunal. and further: A failure by a party to provide documents in accordance the Tribunal orders may result in that party not being able to rely on the documents at the hearing, unless leave is granted to do so. 1. These orders ought to have raised some real concern on the part of the Builder's representative. It is not clear from the material included in the appeal documents what occurred after the directions hearing on 30 November 2015 in attempted compliance with the orders made by way of preparation. 2. In early December 2015 the Builder, on the recommendation of Ms Matthias, engaged Balmain Lawyers to represent him in these proceedings in place of his former solicitors. Steps were taken by Balmain Lawyers to engage an expert, and an inspection of the property was undertaken just prior to Christmas 2015. 3. Notwithstanding the efforts on the part of Balmain Lawyers, it was not possible for the orders made on 30 November 2015 to be complied with. 4. On 29 January 2016, an application was made by Balmain Lawyers on behalf of the Builder to extend the dates for compliance in the 30 November 2015 orders. The Tribunal made procedural directions: 1. Timetable made by the Tribunal on 30/11/2015 is amended. 2. Time for compliance with direction 3 is extended to 1/2/2016 3. Time for compliance with direction 4 is extended to 19/2/2016 1. By letter dated 1 February 2016, Balmain Lawyers requested that the times for compliance made on 30 November 2015 and 29 January 2016 be further extended. This request was stood over to the directions hearing appointed for 22 February 2016. 2. On 22 February 2016 the Tribunal made orders including the following: The Respondent shall not file and serve any amendment to the cross application in proceeding HB 15/3830, or any evidence in support of that application, or in opposition to the primary claim made against him in proceeding HB 15/30174 without the leave of the presiding Member of the Tribunal at the final hearing of the proceedings. Consideration 1. It is apparent that there had been multiple failures by the Builder to comply with orders of the Tribunal from June until late November 2015. During this period, there appears to have been no progress in the preparation of the proceedings on behalf of the Builder. This accumulation of default was correctly recognised by the Tribunal as being wholly inconsistent with the obligations of parties in proceedings before the Tribunal. 2. The procedural regime under which the Tribunal operates reflects the reforms introduced under the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 which place significance upon procedural efficiency and economy. Section 3 (d) of the Act emphasises this aspect and provides that: The objects of the Act are: . . . (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and" 1. These procedural reforms, it has been said, give rise to a "new regime" (A & N Holdings NSW Pty Ltd v Andell Pty Ltd [2006] NSWSC 55), which requires a different approach to the conduct of proceedings generally, than had applied in the past. 2. Under this new procedural regime, a Court or Tribunal, when considering an application for summary judgment or dismissal of proceedings, the primary consideration will involve a balancing of the interests of the parties to ensure justice. Whilst a party's default need not be intentional or contumelious or amount to inordinate delay (Micallef v ICI Australia Pty Ltd [200] 2001 NSWCA 274, per Heydon JA at [51]), prolonged, unexplained or inexcusable delay will not generally be permitted. A recent example in the Tribunal involving an application of s 55 of the Act, albeit involving and unrepresented party, is Roberts v Nursing and Midwifery Board of Australia [2016] NSWCATOD 129. 3. We consider that if an application for dismissal pursuant to section 55 had been made, the Tribunal, giving appropriate recognition to the requirements for procedural efficiency and economy, determined that the totality of the default referred to in pars 64 to 76 would have justified the making of such an order. Costs 1. It appears that there was no order for costs made by the Tribunal in the matter under appeal and no order for costs was made in the Homeowners' application, HB 15/30174. The issue of what costs if any are to be awarded in the proceedings before the Tribunal are a matter for the Tribunal. 2. The appeal was filed on 6 July 2016. Accordingly, Rule 38A applies, with the effect that the costs rule in s 60 of the Act (that is, that an award of costs is only made if there are special circumstances warranting an award of costs) does not apply to the appeal. That means that costs follow the event, and the unsuccessful party (here the Builder) should pay the costs of the successful party (here the Homeowners). 3. Therefore, we propose to order the Builder, being unsuccessful, to pay the Homeowners' costs of the appeal. However, if the Builder wishes to seek some other order as to costs, including that no order as to costs should be made, he should file with the Registry and provide to the Homeowners submissions on this matter within 14 days of the publication of these reasons. The Homeowners should reply by filing submissions with the Registry and providing those submissions to the Builder within a further 14 days. Our decision in relation to costs will then be decided on the papers and without a further hearing. Orders 1. The appeal is dismissed. 2. The decision under appeal is affirmed. 3. In relation to costs: 1. any submission as to the costs of the appeal by the Appellant is to be made by filing and serving on the Respondent written submissions within 14 days after publication of this decision. 2. the Respondent is to file and serve on the Appellant submissions in reply within a further 14 days. 3. any such application will then be decided on the papers. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2016