BARLOW and BERGIN (Civil Dispute)

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BARLOW AND BERGIN (Civil Dispute) [2011] ACAT 63

XD 165 of 2011

Catchwords:             CIVIL DISPUTE – could residential tenancy proceedings in the Tribunal be a ground for an action for malicious prosecution or an abuse of process? – was the action for malicious prosecution a roundabout way to seek costs in previous tenancy proceedings in the Tribunal? – the character of such action as a belated counterclaim or defence in relation to previous proceedings – Anshun estoppel: prevention of re-litigating matters that have been previously litigated, or could have been raised in previous proceedings – tort of malicious prosecution is limited to criminal law and has limited extension to civil action – instituting tenancy proceedings is not malicious prosecution – no evidence that the lessor’s action was for an ulterior motive.

List of legislation: ACT Civil and Administrative Tribunal Act 2008, ss.16 & 48

List of cases:             A v State of New South Wales [2007] HCA 10

Cachia v Hanes [1994] HCA 14

Henderson v. Henderson [1843] EngR 917; (1843) 3 Hare 100; [1843] EngR 917; 67 ER 313,
Lawrence v Nikolaidis [2003] NSWCA 129
Port ofMelbourne Authority v. Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Sharp v Biggs [1932] HCA 54

List of Texts/Papers: Sappideen and Vines, Fleming’s The Law of Torts, 10^th ed

Tribunal:                  Mr A. Anforth, Senior Member

Date of Orders:  14 September 2011
Date of Reasons for Decision:         14 September 2011

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          

XD 165 of 2011

BETWEEN:

MICHAELA BARLOW

Applicant

AND:

ROWAN BERGIN

Respondent

TRIBUNAL:            Mr A. Anforth, Senior Member

DATE:  14 September 2011

ORDER

1. The Application is dismissed.

………………………………..

Mr A. Anforth

Senior Member

REASONS FOR DECISION

Background:

1. The Applicant was a tenant of the Respondent in relation to a residential property in Barton. It appears that the residential tenancy had continued for some time as a series of 12 months tenancies. The last tenancy commenced on 25 February 2009 to end on 24 February 2010.

1. The last of the tenancies ended in acrimonious circumstances. The acrimony arose over the Applicant’s refusal to permit the Respondent’s tradesmen access to the property for the purpose of quoting on proposed renovations. The Respondent purported to terminate the tenancy prior to the end of the fixed term by serving Notice of Termination. The Applicant responded with rent strike.

1. The matter came before the Tribunal (RT 10/165) which resulted in an order for the termination of the tenancy on 24 February 2010, payment of rent arrears by the Applicant and an order for the distribution of the bond. In the course of these proceedings the Tribunal made a finding of fact that the Notice of Termination was invalid in that it was not effective to terminate a fixed term tenancy within the fixed term.

1. No order for costs were sought or made in RT 10/165 and the present Applicant did not lodge a cross claim for…