Cosenza v Palanka - [2018] SASC 81

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
COSENZA & ANOR v PALANKA & ANOR
[2018] SASC 81
Judgment of The Honourable Justice Stanley
15 June 2018
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION
The plaintiffs brought an interlocutory application seeking the transfer of proceedings from the Magistrates Court to the Federal Court pursuant to s 5 and s 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (SA), or in the alternative the transfer of proceedings from the Magistrates Court to the District Court.
The plaintiffs claim damages caused by trespass to their residential property by the first defendant, for whom the plaintiffs allege the second defendant is vicariously liable. They also allege breaches by the defendants of the ACL.
The plaintiffs submitted the proceedings should be transferred to the Federal Court so they can seek pecuniary penalty and adverse publicity orders against the second defendant under ss 224 and 247 of the Australian Consumer Law (ACL), or so the Australian Competition and Consumer Commission (ACCC) can do so. The second defendant opposed the application on the basis that the plaintiffs do not have the right to seek those orders and there is no evidence that the ACCC seeks such orders, and in any event the delay and costs already incurred in these proceedings weigh against the transfer.
In the alternative the plaintiffs submitted that the proceedings should be transferred to the District Court because their claim for damages may exceed the jurisdictional limit of the Magistrates Court. The second defendant opposed the application on the basis that the evidence does not support an award in excess of the jurisdictional limit of the Magistrates Court, of the delay in bringing the application, and that the application should have been brought in the Magistrates Court or District Court.
Held: Application to transfer the proceedings from Magistrates Court to District Court allowed.
1. It would be inappropriate for any court confronted with an application to transfer proceedings on the basis that the damages sought might exceed the jurisdictional limit to descend into a consideration of the evidence and attempt to form a judgment as to the amount of damages sought.
2. The basis of the plaintiff’s claim for damages bears some general comparison with the basis of the award made in Plenty v Dillon & Will (1997) 194 LSJS 106. That is a sufficient basis to exercise the power to transfer so as to prevent the plaintiffs being deprived of the full extent of any award that may be made.
3. There is nothing to indicate the proceedings would be further delayed by a transfer of the matter to the District Court and, while the application should have been made in the District Court or Magistrates Court, there is no utility and some prejudice in requiring the plaintiffs to bring a further application in another court.
Held: Application to transfer the proceedings from Magistrates Court to Federal Court dismissed.
4. The power to seek pecuniary penalty and adverse publicity orders under s 224 and s 247 is conferred exclusively upon the ACCC. The plaintiffs have no statutory right to seek those orders.
5. The evidence does not establish any interest on the part of the ACCC in pursuing pecuniary penalties or publication orders against the second defendant.
Jurisdiction of Courts (Cross-Vesting) Act 1987 (SA) s 5, s 8; Competition and Consumer Act 2010 (Cth) Schedule 2; Australian Consumer Law s 74, s 75, s 76, s 77, s 224, s 228, s 237, s 247; Fair Work Act 2009 (Cth) s 540(1); Federal Court of Australia Act 1976 (Cth) s 21, referred to.
Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 194 LSJS 106, applied.

COSENZA & ANOR v PALANKA & ANOR
[2018] SASC 81
Civil: Application
STANLEY J:
Introduction

This is an interlocutory application brought by the plaintiffs seeking the transfer of proceedings from the Magistrates Court to the Federal Court pursuant to ss 5 and 8 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (SA). In the alternative, the plaintiffs seek an order for the transfer of the proceedings from the Magistrates Court to the District Court. The applications for transfer are opposed by the second defendant. There was no appearance by the first defendant on the hearing of the application. It appears the first defendant has taken no part in the proceedings.
The proceedings
The plaintiffs claim general, aggravated and exemplary damages from the defendants for anguish, distress and aggravation to pre-existing depression, anxiety and post-traumatic stress disorder caused by trespass to their residential property by the first defendant on or about 30 June 2012. The plaintiffs allege the second defendant is vicariously liable for the first defendant’s conduct at common law and pursuant to s 77 of the Australian Consumer Law (ACL).[1] In addition, they allege breaches by the defendants of ss 74, 75 and 76 of the ACL.
[1] Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Importantly, for the purposes of this application, the plaintiffs seek pecuniary penalties pursuant to s 224 of the ACL; an adverse publicity order pursuant to s 247 of the ACL; a compensation order pursuant to s 237 of the ACL and declaratory relief pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth).
Evidence
The plaintiffs rely upon three affidavits sworn by the first plaintiff. The second defendant relies upon an affidavit of Roxanne Kylie Smith sworn 13 April 2018.
Transfer of the proceedings to the Federal Court
The plaintiffs submit that the proceedings should be transferred to the Federal Court in the interests of justice. They submit that the proceedings should be transferred so that either they can seek pecuniary penalty and adverse publicity orders against the second defendant or so the Australian Competition and Consumer Commission (ACCC) can do so.
The second defendant opposes the application on the basis that the plaintiffs do not have the right to seek those orders and there is no evidence before the Court that the ACCC seeks such orders, and in any event, the delay and costs already incurred in these proceedings weigh against the transfer in the exercise of the Court’s discretion.
I would refuse the application. First, insofar as the application is based on the desire of the plaintiffs to pursue orders for pecuniary penalties and adverse publicity orders the application is misconceived. The plaintiffs contend that they enjoy a statutory right to apply to the Federal Court for these remedies. The plaintiffs as natural persons have no right to pursue such remedies.
The right to seek pecuniary penalties is conferred by s 224 of the ACL. The right to seek adverse publicity orders is conferred by s 247 of the ACL.
Section 224(1)(a) provides that if a court is satisfied that a person has contravened one or more of specified provisions of the ACL, the court may order the person to pay to the Commonwealth, State or Territory, as the case may be, such pecuniary penalty, in respect of each act or omission by the person as the court determines to be appropriate. Section 228(1) provides:
The regulator may institute a proceeding in a court for the recovery on behalf of the Commonwealth, a State or a Territory, as the case may be, of a pecuniary penalty referred to in s 224.
Section 2 of the ACL defines “court” to mean any court having jurisdiction in relation to a matter.
The plaintiffs submit that s 228(1) does not confer exclusive jurisdiction upon the ACCC as the regulator to institute proceedings for the recovery of a pecuniary penalty, and that the use by the Parliament of the word “may” in the subsection, should be construed to mean that persons other than the regulator may also institute proceedings for the recovery of pecuniary penalties. I reject that submission.
As a matter of construction s 228(1) means that the regulator is empowered to institute proceedings for the recovery of a pecuniary penalty in s 224. The use of the word “may” in the subsection means no more than that the regulator is conferred with a discretion as to whether to exercise the conferred power. It does not mean that the power conferred on the regulator is non-exclusive. The clear intention of the Parliament in enacting s 228(1) was to confer the power to institute proceedings for the recovery of a pecuniary penalty exclusively on the regulator. This construction is supported by authority. In Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission[2] Mason J, as he then was, addressing the predecessor statutory regime in s 77 of the Trade Practices Act 1974 (Cth) concluded that civil proceedings for the recovery of a pecuniary penalty may be instituted only by the Attorney-General or the Trade Practices Commission.[3] Section 77(1) was in the following terms:
The Attorney-General or the Commission may institute a proceeding in the Court for the recovery on behalf of Australia of a pecuniary penalty referred to in section 76.
[2] [1982] HCA 65, (1982) 152 CLR 460.
[3] [1982] HCA 65 at [5], (1982) 152 CLR 460 at 470.
It can be seen that the terms of the former s 77(1) are substantially identical to s 228(1) mutatis mutandis.
Section 247(1) provides that a court may, on the application of the regulator, make an adverse publicity order in relation to a person who has contravened a provision of Part 2–2 or Chapter 3 of the ACL; or has committed an offence against Chapter 4 of the ACL.
The same reasoning that I have applied to s 228(1) applies to s 247(1). Section 247(1) confers upon the ACCC, as the regulator, the exclusive power to apply to a court for an adverse publicity order. The plaintiffs do not have any right to seek an adverse publicity order.
In any event, if they were empowered to apply for pecuniary penalties or adverse publicity orders they could do so in the Magistrates Court by reason of the definition of “court” in s 2 of the ACL. Accordingly, there is no reason in the interests of justice to transfer the proceedings to the Federal Court.
The plaintiffs sought to derive some support for their application from the provisions of s 540(1) of the Fair Work Act 2009 (Cth) (FWA). Section 540(1) permits various persons to apply for orders for the contravention of civil remedy provisions under the FWA. The terms of s 540 of the FWA merely reflect a different statutory regime from that which exists under the ACL. The right to apply to a court for the making of pecuniary penalty orders or adverse publicity orders is a statutory right. The terms of the ACL confines that right to the regulator. The terms of the FWA are materially different. Reliance on s 540 of the FWA does not assist the plaintiffs.
Second, insofar as the plaintiffs’ application is based on a desire to afford an opportunity to the ACCC to seek such orders, the evidence before the Court does not warrant the transfer of the proceedings to the Federal Court in the interests of justice.
In his third affidavit the first plaintiff deposes to a meeting with a Mr Alistair Pellen of the ACCC on or about 26 June 2017. The first plaintiff discussed with Mr Pellen intervention by the ACCC in this and other matters involving what is said to be repeat contraventions of the ACL by electricity providers such as the second defendant and others, by unsolicited door-to-door sales in defiance of Do Not Knock and No Trespassing signs. The first plaintiff deposes that during that meeting he was advised that the ACCC would not be able to pursue or join in the current proceedings, seek pecuniary penalty or publication orders as the ACCC can only intervene in matters within the Federal Court jurisdiction. The first plaintiff deposes that he was advised that should proceedings be transferred to the Federal Court the ACCC would then be in a position to consider joining in the current proceedings for the purpose of seeking both pecuniary penalty and publication orders.
This evidence does not rise so high as to establish any interest on the part of the regulator in pursuing pecuniary penalties or adverse publicity orders against the second defendant in relation to the plaintiff’s claims in the within proceedings. I am not prepared to exercise the discretion conferred on the Court to transfer proceedings on the basis that the regulator wishes to pursue such orders in the absence of direct evidence from the regulator of its intention to do so. In any event, even in those circumstances, I doubt that transfer to the Federal Court would be necessary for that purpose, but as this matter was not fully argued, it is unnecessary for me to form a view on that issue one way or the other.
For these reasons I would refuse the application to transfer the proceedings to the Federal Court.
Transfer of the proceedings to the District Court
The plaintiffs seek the transfer of proceedings from the Magistrates Court to the District Court on the basis that they are concerned that their claim for damages would exceed the jurisdictional limit of the Magistrates Court. The plaintiffs rely upon Plenty v Dillon & Will[4] where the Court awarded damages for trespass in the amount of $122,000 plus interest of $45,000.
[4] (1997) 194 LSJS 106.
The second defendant opposes the transfer on three bases. First, on the basis that the evidence before the Court does not support an award in excess of the jurisdictional limit of the Magistrates Court. Second, on the basis of the delay in bringing the application. Third, on the basis that the application should be made either in the Magistrates Court of the District Court.
In my view the plaintiffs’ application for transfer of the proceedings to the District Court should be granted subject to the plaintiffs paying the costs of the transfer, including this application.
While there is little evidentiary material before the Court in relation to any probable award of damages to the plaintiffs in the event that their action succeeds, that is not uncommon in applications of this kind. It would be inappropriate for any court confronted with an application to transfer proceedings on the basis that the damages sought might exceed the jurisdictional limit, to descend into a consideration of the evidence relevant to any damages award and attempt to form a judgment as to the amount of those damages. It is sufficient for the purposes of this application that the plaintiffs claim damages for mental harm, vindication of their rights to exclusive use of their residential property, and aggravated and exemplary damages. The basis of the plaintiffs’ claim for damages in these proceedings bears some general comparison with the basis of the award made in Plenty v Dillon & Will, which concerned an award of damages made in 1997. In my view that is a sufficient basis to exercise the power to transfer so as to prevent the plaintiffs being deprived of the full extent of any award that may be made if the proceedings remain in the Magistrates Court.
While there has been extensive delay in this matter, there is nothing before me to indicate that the proceedings would be further delayed from coming to trial by a transfer of the matter to the District Court.
Finally, while the application to transfer proceedings to the District Court should have been made either in the District Court or the Magistrates Court, the application to do so was made in the alternative to the application that was properly before this Court to transfer the proceedings to the Federal Court. In the circumstances, there is no utility and some prejudice, in terms of both cost and further delay, in refusing the application on that basis and requiring the plaintiffs to bring a further interlocutory application in another court. Given that the issue of transfer is before me, it is appropriate to deal with it.
Conclusion
I dismiss the application to transfer these proceedings from the Magistrates Court to the Federal Court. I allow the application for the transfer of proceedings from the Magistrates Court to the District Court. I order the plaintiffs to pay the costs of the transfer and this application.