Duarte & anor v Mitchell & anor (RLD) - [2008] NSWADTAP 40

Appeal Panel - Internal

CITATION: Duarte & anor v Mitchell & anor (RLD) [2008] NSWADTAP 40

PARTIES:
APPELLANTS
Carlos Duarte
Rita Duarte
RESPONDENTS
Steve Mitchell
Sandra Mitchell

FILE NUMBER: 089001

HEARING DATES: 3 April 2008

SUBMISSIONS CLOSED: 15 April 2008

DATE OF DECISION:
18 July 2008

BEFORE: O'Connor K - DCJ (President)

DECISION UNDER APPEAL: Duarte and ors v Mitchell and ors [2007] NSWADT 276

FILE NUMBER UNDER APPEAL: 075102, 075168

DATE OF DECISION UNDER APPEAL: 11/28/2007

LEGISLATION CITED: Retail Leases Act 1994
Administrative Decisions Tribunal Act 1997

CASES CITED: Duarte and ors v Mitchell and ors [2007] NSWADT 276
Dykes and Wildie v Heatherway Pty Ltd (No 2) (RLD) [2007] NSWADTAP 46
Citadin Pty Ltd (No 2) v Eddie Azzi Australia Pty Ltd & General Pants Pty Ltd (RLD) [2001] NSWADTAP 31
North Eastern Travel Stops Pty Ltd v Bradley & Ors (No 2) (RLD) [2005] NSWADTAP 17

REPRESENTATION:
In Person
P Mitchell, solicitor

ORDERS: Appellants to pay the respondent's costs of the summary dismissal application, as agreed or assessing, taking note of para [21] of these reasons.

REASONS FOR DECISION
1 On 28 November 2007 the Retail Leases Division of the Tribunal dealt with two applications brought under the Retail Leases Act 1994 (the RL Act). The lessees, Mr Carlos and Mrs Maria Rita Duarte, made one application; the lessors, Mr Steve and Mrs Sandra Mitchell the other. The lessees’ application was dismissed. The lessors’ application was successful in part. See Duarte and ors v Mitchell and ors [2007] NSWADT 276.

2 The Tribunal made the following orders:

‘1. It is declared that the lease between the parties, relating to retail shop premises at Shop B, 113 Queen Street, Campbelltown, was validly terminated by the Respondents/Cross Applicants [i.e. the lessors] on 11 May 2007;
2. The Applicants/Cross Respondents [i.e. the lessees] are jointly and severally liable to pay the sum of $6,864.00 to the Respondents/Cross Applicants;

3. The Applicants/Cross Respondents are to pay the Respondents/Cross Applicants’ costs of the directions hearing held on 9 August 2007, as agreed or assessed on a party/party basis;

4. The Application lodged on 15 June 2007 by the Applicants/Cross Respondents is dismissed.’

3 The lessees lodged an appeal against the decision on 4 January 2008.
4 At a directions hearing held on 5 March 2008 before me, the lessors, as respondents to the appeal, applied for the appeal to be summarily dismissed. I listed the hearing for 3 April 2008. The lessors also foreshadowed an application, if successful, for the lessors’ costs of the appeal including the costs of the directions hearing. I directed the lessees to file and serve submissions relating to certain aspects of the appeal, which they did.

5 At hearing on 3 April 2008 I summarily dismissed the appeal. (The power of summary dismissal is conferred by s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (the ADT Act). The Appeal Panel may be constituted by a single presidential member for the purpose of making a decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWADTAP 40
Decision Date: 18 July 2008

CaseChat Overview and Summary

The case involved Duarte and another appellant against Mitchell and another respondent. The dispute centred around a claim for damages in relation to alleged defamation. The case was heard in the Federal Court of Australia. The appellants sought to appeal against the summary dismissal of their claim, arguing that there were genuine issues for trial.

The primary legal issue before the court was whether the appellants had established a prima facie case of defamation. The court needed to determine if the allegations made by the appellants were legally sufficient to proceed to a trial. This involved examining the content of the alleged defamatory statements, their publication, and their impact on the respondents' reputation. Additionally, the court had to consider whether there were any legal impediments to the appellants' claim, such as the existence of any applicable defences.

In examining the matter, the court concluded that the appellants had not demonstrated a viable defamation claim. The court found that the alleged statements did not meet the legal threshold for defamation, lacking the necessary elements to substantiate the claim. The court emphasised that for a defamation case to proceed, the statements must be both defamatory and have been published to a third party. Furthermore, the court noted that the appellants failed to provide sufficient evidence to support their claims, thereby undermining the viability of their case. As a result, the court upheld the summary dismissal of the appellants' claim and ordered the appellants to pay the respondents' costs.

Orders

Orders of the court

Appellants to pay the respondent's costs of the summary dismissal application, as agreed or assessing, taking note of para [21] of these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Duarte & anor v Mitchell & anor (RLD) [2008] NSWADTAP 40
PARTIES:	APPELLANTS Carlos Duarte Rita Duarte RESPONDENTS Steve Mitchell Sandra Mitchell
FILE NUMBER:	089001
HEARING DATES:	3 April 2008
SUBMISSIONS CLOSED:	15 April 2008
DATE OF DECISION:	18 July 2008
BEFORE:	O'Connor K - DCJ (President)
DECISION UNDER APPEAL:	Duarte and ors v Mitchell and ors [2007] NSWADT 276
FILE NUMBER UNDER APPEAL:	075102, 075168
DATE OF DECISION UNDER APPEAL:	11/28/2007
LEGISLATION CITED:	Retail Leases Act 1994 Administrative Decisions Tribunal Act 1997
CASES CITED:	Duarte and ors v Mitchell and ors [2007] NSWADT 276 Dykes and Wildie v Heatherway Pty Ltd (No 2) (RLD) [2007] NSWADTAP 46 Citadin Pty Ltd (No 2) v Eddie Azzi Australia Pty Ltd & General Pants Pty Ltd (RLD) [2001] NSWADTAP 31 North Eastern Travel Stops Pty Ltd v Bradley & Ors (No 2) (RLD) [2005] NSWADTAP 17
REPRESENTATION:	In Person P Mitchell, solicitor
ORDERS:	Appellants to pay the respondent's costs of the summary dismissal application, as agreed or assessing, taking note of para [21] of these reasons.