Brashes Convenience Store Pty Ltd v Pitt and Castlereagh Pty Ltd (No 2)
[2013] NSWADT 184
•04 July 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Brashes Convenience Store Pty Ltd v Pitt & Castlereagh Pty Ltd (No 2) [2013] NSWADT 184 Hearing dates: 4 July 2013 Decision date: 04 July 2013 Jurisdiction: Retail Leases Division Before: P H Molony, Judicial Member Decision: The application for separate hearings is dismissed
Catchwords: Procedure - separate hearing Legislation Cited: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994
Uniform Civil Procedure Rules 2005Cases Cited: Brashes Convenience Store Pty Ltd v Pitt & Castlereagh Pty Ltd [2013] NSWADT 118
Coogee Bay Village Pty Ltd v Profilio (RLD) [2011] NSWADTAP 39
Crawley v Vero Insurance [2012] NSWSC 593
Torchia v Swanton (No 2) [2011] NSWADT 185
Southwell v Bennett [2010] NSWSC 1372
Spuds Surf Chatswood Pty Ltd v PT Ltd (RLD) [2012] NSWADTAP 2.Category: Interlocutory applications Parties: Brashes Convenience Store Pty Ltd (Applicant)
Pitt & Castlereagh Pty Ltd (Respondent)Representation: H Soltan, (Applicant- Applicant)
Bartier Perry (Respondent)
File Number(s): 125151
reasons for decision
Background
On 4 July 2013 the Applicant made an oral application in the course of a directions hearing for orders that the Tribunal determine issues of liability and jurisdiction with respect to its claim, before hearing and determining the issue of damages (if any). I refused to make such an order. Mr Soltan has since requested written reasons for that decision. These are those reasons.
The application for an original decision was filed on October 2012 and subsequently amended on 3 December 2012. It s a combined retail tenancy and unconscionable conduct claim relating to the Applicant's alleged occupation of shop premises in Pitt Street Sydney from 20 November 2006 to 17 November 2009. The Applicant alleges that by virtue of provisions of the Retail Leases Act 1994 ('the RL Act'), the duration of the Lease was five years; that the Respondent unlawfully terminated the Lease by serving a Notice to Quit dated 16 October 2009; that having regard to the circumstances in which the Notice was served, the Respondent thereby engaged in unconscionable conduct; and that the Applicant is entitled to damages for losses suffered on account of the termination and to declaratory relief.
The Respondent initially contested the monetary jurisdiction of this Tribunal to hear and determine the Applicant's claim, and, in the alterative, sought an order that it be transferred to the Supreme Court. Deputy President Chesterman heard that application on 26 March 2013. At that time the Applicant had filed its affidavit evidence and an expert report in relation to damages.
On 29 May 2013 Deputy President Chesterman found that the Tribunal did have jurisdiction, and dismissed the application for transfer (see Brashes Convenience Store Pty Ltd v Pitt & Castlereagh Pty Ltd [2013] NSWADT 118.) The matter was listed for direction on 6 June 2013.
That directions hearing took place before Judicial Member Rickards. He made orders for the filing of a reply by the Respondent, and with respect to the production of documents by the Applicant. While it is not apparent from the orders made by Rickards JM, both the Applicant and the Respondent agree that the Applicant had asked Mr Rickards to order a separate hearing at that time, which he refused to do.
On 4 July 2013 the Respondent filed its reply. In it the Respondent asserted, among other things, that the Applicant had not entered into a lease or leases with it to which the RLA applied, whether expressly or by operation of law; and, alternatively, alleging that any such lease is voidable in equity; that the Applicant's claim that it holds a 5 year lease constitutes unconscionable conduct, and taking issue with the damages claimed by the Applicant.
Submissions
In support of his application for a separate hearing Mr Soltan pointed to the disputes raised by the Respondent in its Reply with respect to the Tribunal's jurisdiction, as demonstrating that there ought to a separate hearing to determine both jurisdiction and liability. He argued that if the matter proceeded without such a separation of issues, then the costs associated with the assessment would be wasted if it were found that the Tribunal did not have jurisdiction, or that the Respondent was not liable as alleged by the Applicant.
Mr Soltan argued that such an approach would be consistent with the objects of the Administrative Decisions Tribunal Act 1997, particularly those in s 3(a) and (b) which provide:
The objects of this Act are as follows:
(a) ...,
(b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,
(c) to enable proceedings before the Tribunal to be determined in an informal and expeditious manner,
(d) ...
He referred me to a number of decisions of the Tribunal that he said supported his application for separate hearing. They were Coogee Bay Village Pty Ltd v Profilio (RLD) [2011] NSWADTAP 39, Torchia v Swanton (No 2) [2011] NSWADT 185, and Spuds Surf Chatswood Pty Ltd v PT Ltd (RLD) [2012] NSWADTAP 2.
Both Spuds Surf Chatswood Pty Ltd v PT Ltd and Torchia v Swanton were said to be examples of cases in which the Tribunal had determined liability separately form the issue of damages. Coogee Bay Village Pty Ltd v Profilio was cited as an example of a case in which a determination of liability had been reversed on appeal, resulting in the costs associated with a separate hearing with respect to damages being wasted.
The Respondent opposed the application for a separate hearing. In doing so Mr Elmgreen noted that the Applicant has already put on all its evidence, including an experts report going to damages, which costs would not be saved by acceding to its application. He argued that any costs saved by hearing jurisdictional and liability issues alone, with damages determined separately, would be dependant on the outcome of the initial hearing. If liability were found, the costs of then conducting a second hearing would be greater than if the matter had been heard as one.
Mr Elmgreen pointed to the fact that these proceedings had now been on foot for some nine months, and suggested that an order for separate hearings would have the effect of unnecessarily prolonging the proceedings. He considered that the matter should be heard and determined as one.
I asked Mr Elmgreen whether I was correct in understanding that the factual matrix underlying the disputes between the parties were intermingled with disputes about jurisdictional facts. He indicated that I was.
In Mr Elmgreen submission the cases relied on by Mr Soltan were of no assistance and contained no statements of principle applicable to the Tribunal's discretion to order separate hearings.
Consideration
I agree with Mr Elmgreen that the cases cited by Mr Soltan do not assist his case. Spuds Surf Chatswood Pty Ltd v PT Ltd (RLD) [2012] NSWADTAP 2 was an Appeal Panel case in which a separate hearing concerning damages was conducted before the Appal Panel, after it had found the Respondent liable on appeal. That hearing was necessary to determine the resultant damages. It was not a case where the Tribunal determined to hear the issues separetely at first instance.
Both Coogee Bay Village Pty Ltd and Profilio (RLD) [2011] NSWADTAP 39 and Torchia v Swanton (No 2) [2011] NSWADT 185 are cases in which the Tribunal did determine those issues separately. Neither contains any discussion of the principles applicable to the exercise of the discretion to do so.
There can be no doubt that the Tribunal has an obligation to manage proceedings so that they are conducted fairly, efficiently, expeditiously and informally. In addition to the objects of the Administrative Decisions Tribunal Act 1997, upon which Mr Soltan relied, s 75 of that Act relevantly provides that -
73 Procedure of the Tribunal generally
(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
....
If the Tribunal were to determine issues or questions separately it would do pursuant to its power to determine its own procedure. There is in specific provision in the Act, Regulation or Rules relating to separate determinations.
While the Uniform Civil Procedure Rules 2005 do not apply to proceedings in the Tribunal, they do contain provisions that are concerned with the determination of separate questions. Rule 28.2 provides -
The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.
The decided cases with respect to that provision provide useful guidance as to the circumstances and manner in which this Tribunal should exercise its discretion to order separate hearings.
A very helpful summary of the relevant principles can be found in Southwell v Bennett [2010] NSWSC 1372 where Hallen AsJ said at [15-17]:
I5 I take the principles that apply in determining whether to make an order for the separate determination of a question under the rule to be:
(a) The rule speaks of "questions" and not "issues" and does not differentiate between questions of fact, or law, or partly of fact and partly of law.
(b) The judicial determination of a "question" must involve a conclusive, or final, decision based on concrete and established, or agreed, facts, for the purpose of quelling a controversy between the parties: Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, at [45] and [51].
(c) The rule permits the Court to hear and determine the separate question at any point before, at, or after, any trial or further trial in the proceedings, rather than only as a preliminary question.
(d) Whether such an order should be made is a matter for the court's discretion, which discretion must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VR 669, at 670; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7].
(e) As a general rule, the discretionary power to order separate determination of a question should be approached with caution: Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [436], per Callinan J; Tepko Pty Limited v The Water Board [2001] HCA 19; (2001) 206 CLR 1, at [168]-[170] per Kirby and Callinan JJ: Commonwealth Bank v Clune [2008] NSWSC 1125 at [6], per Johnson J; Bailey and Bailey v Director-General Department of Energy Climate Change and Water and Ors [2010] NSWSC 979 at [4] per Studdert AJ.
(f) In exercising its discretion, the overriding purpose of the Civil Procedure Act 2005, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect.
(g) Generally, all questions of fact and law should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-42; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14. If the Court is to depart from that position, the party seeking the separate determination of a question must satisfy the Court that it would be 'just and convenient' for that order to be made: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]-[9], see also Energy Australia v Australian Energy Limited [2001] FCA 1049.
(h) While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(6)] per Einstein J.; Owners Corporation Sp 70672 v Trustees of Roman Catholic Church [2010] NSWSC 946 at [16] per Ball J.
(i) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. It sometimes happens that it turns out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid: Idoport Pty Ltd v National Australia Bank Ltd; Tepko Pty Limited v The Water Board at [168].
(j) Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd at 142, per Giles CJ in Comm D; Parramatta Stadium Trust v Civil and Civic Pty Ltd; Century Medical v THLD (NSWSC, 27 August 1996, unreported).
(k) Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial: ABB v Freight Rail [1999] NSWSC 1037.
(l) Often, a separate question is heard on the basis of:
(i) agreed statements of fact;
(ii) a narrow point to be determined; and
(iii) a hearing that is able to be conducted within a short time (or a short time relative to the total length if the hearing of the separate question were not to be dealt with).
(m) Factors that tend to support the making of an order, include that the separate determination of the question may:
(i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings: Tallglen v Pay TV Holdings;
(ii) contribute to the settlement of the litigation (CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 602 per Kirby P at 607).
(n) It may be appropriate to determine a separate question, even if it will not resolve all the issues, provided that there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided, or if the decision will obviate unnecessary and expensive hearings of other questions: City of Swan v Lehman Brothers Australia Ltd [2009] FCA 784; (2009) 73 ACSR 86 at [27] per Rares J. The determination of the one question should enable a sensible reassessment of litigation risks, which is generally likely to encourage some form of settlement discussions.
(o) Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding: Reading Australia Pty Ltd v Australian Mutual Provident Society at [8]. There is always a risk of inconsistent findings arising from determination of separate questions.
(p) Whilst the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties: TVW Enterprises Limited v Duffy (Federal Court of Australia, 28 March 1985, unreported) Toohey J.
(q) It is a relevant consideration to weigh the time likely to be taken in the hearing of a separate question and the availability of hearing dates for that purpose, against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing will take place: TVW Enterprises Limited v Duffy at pp 4-5.
(r) Each case will have its own dynamics that dictate the relative importance of various factors to be considered in exercising the discretion conferred.
(s) It is necessary that there be precision, both in formulating the question, and in specifying the facts upon which it is to be decided: Jacobson v Ross [1995] 1 VR 337 at 341
16 Finally, I should refer to Allen v Gulf Oil [1981] AC 1001, which seems to me, in the circumstances of the present case, to be not only sensible, but essential, to remember. Lord Wilberforce said, at p1010H:
"... My Lords, I and other of your Lordships have often protested against the procedure of bringing, except in clear and simple cases, points of law for preliminary decision. The procedure indeed exists and is sometimes useful. In other cases, and this is frequently so where they reach this House, they do not serve the cause of justice. The present is such an example. The question as originally framed was clearly inept. It was recast by Kerr J. into an improved form. But both judges in the Court of Appeal found it either unintelligible or unanswerable: so I believe do some at least of your Lordships. The fact is that the result of the case must depend upon the impact of detailed and complex findings of fact upon principles of law which are themselves flexible. There are too many variables to admit of a clear-cut solution in advance."
17 Lord Roskill said at p1022A:
" ... The preliminary point procedure can in certain classes of case be invoked to achieve the desirable aim both of economy and simplicity. But cases in which such invocation is desirable are few. Sometimes a single issue of law can be isolated from the other issues in a particular case whether of fact or of law, and its decision may be finally determinative of the case as a whole. Sometimes facts can be agreed and the sole issue is one of law. But the present is not a case in which this procedure ought ever to have been adopted for the reasons stated by my noble and learned friend ...
... But I hope that your Lordships' agreement so to treat it will not encourage others to invoke the preliminary point procedure in unsuitable cases, or lead those whose task it is to decide whether or not the trial of preliminary points should be ordered, to be other than extremely cautious before acceding to pleas for the making of such orders as a result of attractively advanced submissions founded upon pleas of supposed economy."
This synthesis was adopted and expanded upon by Beech-Jones J in Crawley v Vero Insurance [2012] NSWSC 593 at [13-30].
In the present case the issues which the Applicant seeks to have heard and determined separately - being all issues going to both jurisdiction and liability - are extremely wide. They embrace not only a series of jurisdictional points taken by the Respondent, which involve disputed issues of fact, but also claims in relation to retail lease disputes and allegations of unconscionable conduct resulting in damage, grounded in the same disputed facts. There is no obvious neat or discrete issue or question than can be easily or conveniently isolated and determined.
If the Respondent is entirely successful, there will be no need for a hearing on a separated damages issue. If damages do need to be assessed, an order for a separate hearing will result in greater costs to all parties. It would also result in this matter taking significantly longer to reach a final determination, than it would if the matter follows the usual course of proceeding to a full hearing now. Given the fact that there has already been one preliminary hearing, and the matter, which dates back to 2006, has now been on foot for 9 months, such a result is undesirable.
It is not apparent to me that an order for separate hearing will facilitate a quicker or cheaper disposal of these proceedings. This is not a case in which there is one single make or break issue. Rather, there are a series of issues requiring determination, each of which may prove determinative. This is also not a case where there is a real probability that the resolution of a single issue will facilitate a settlement between the partes.
Further, from my reading of the allegations made by each of the parties, it was apparent that the parties each have a significantly different view of the underlying facts. This indicates that the credibility of their respective witnesses may well be an issue requiring determination. This is a further reason for not having separate hearings.
As a result of all of the above I considered that ordering separate hearings as sought by the Applicant would not be just or convenient in this case. I dismissed the Applicant's oral application accordingly.
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Decision last updated: 16 August 2013
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