BARLOW & BERGIN (Civil Dispute)

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BARLOW & BERGIN (Civil Dispute) [2012] ACAT 17

AA 11/36

Catchwords:             CIVIL DISPUTE – claim for damages for malicious prosecution – the appellant’s claim arose out of or related to leasing transactions – tort generally limited to damage from criminal prosecution - absence of “malicious” elements – estoppels of issues.

List of legislation: ACT Civil and Administrative Tribunal Act 2008, ss.82 & 86

List of cases:              A v. The State of New South Wales [2007] CLR 10

Port of Melbourne Authority v. Anshun Pty Ltd [1981] HCA 45

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

Tribunal:                  Mr C.G Chenoweth, Acting Presidential Member

Date of Orders:  1 March 2012

Date of Reasons for Decision:       2 April 2012

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          

AA 11/36

BETWEEN:

MICHAELA BARLOW

Applicant

AND:

ROWAN BERGIN

Respondent

TRIBUNAL:            Mr C.G Chenoweth, Acting Presidential Member

DATE:  1 March 2012

ORDER

The Tribunal Orders that:

The decision of the Tribunal dated 14 September 2011 is confirmed.

………………………………..

Mr C.G Chenoweth

Acting Presidential Member

REASONS FOR DECISION

1. This is an appeal from a decision of Senior Member Anforth made on

   
   

   14 September 2011, in civil dispute matter number XD 165 of 2011.

2. The civil claims by the appellant in the matters giving rise to the claim for damages originally arose in a series of proceedings concerning the lease of an apartment by the respondent to the appellant. These proceedings were extensive, and are set out in full in the decision of the Senior Member under appeal. I do not propose to repeat those facts or the arguments from those matters in this decision, noting that the outline of the previous proceedings between the parties and the detailed submissions by both parties constitute 33 pages of the Senior Member’s decision. They are comprehensively covered.

3. As noted in paragraph 36 of the Senior Member’s reasons, these proceedings were instituted as a claim for damages for the tort of malicious prosecution. This was the only basis upon which the appellant's damages claim was based. It was pointed out to the appellant during the course of the appeal that if damages were recoverable, she not only needed to prove that she had suffered damages but that those damages flowed from a legally recognised breach of duty by the respondent to the appellant.

4. The notice of appeal filed by the appellant in this matter on 11 October 2011 set out the following grounds:

   1. Anshun estoppel not appropriately applied.

   2. Failure to consider whether there were special circumstances.

   3.Failure to properly apply Cachia v. Haines

   4.   Failure to consider application in the alternative – damages for
        derogation of grant – no quiet enjoyment – time and effort, for
       successfully defending lessors unlawful actions under RTA.

   5.   In all of the circumstances – failure to consider – an unjust result given  
        that the applicant was drawn into litigation on account of lessors    
        wrongful notice to quit –…