Hills v Djordjevic

[2015] NSWSC 407

Supreme Court

New South Wales

Medium Neutral Citation:	Hills v Djordjevic [2015] NSWSC 407
Hearing dates:	13 April 2015Click here to enter text.
Date of orders:	13 April 2015
Decision date:	13 April 2015
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	The Notice of Motion of 2 April 2015 is dismissed. The hearing date of 16 April 2015 before this Court is confirmed. The defendant is to pay the plaintiff’s costs of the Notice of Motion.
Catchwords:	PRACTICE AND PROCEDURE – Where plaintiff brought proceedings appealing against a decision of the NSW Civil and Administrative Tribunal – Where defendant brought a Notice of Motion seeking that the proceedings be transferred to the Local Court – No power to transfer proceedings – Notice of Motion dismissed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Civil Procedure Act 2005 Local Court Act 2007 Uniform Civil Procedure Rules 2005
Cases Cited:	Hills v Djordjevic [2014] NSWCATAP 75
Category:	Procedural and other rulings
Parties:	Nardine Jane Hills - Plaintiff Jovana Djordjevic - Defendant
Representation:	Self - Plaintiff Ms Y Shah Solicitor, Metro Lawyers - Defendant
File Number(s):	2014/339986

Judgment – EX TEMPORE (REVISED)

1. By a summons filed on 18 November 2014, and pursuant to Part 50 of the Uniform Civil Procedure Rules 2005 (the Rules”), the plaintiff seeks to appeal against a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal ("NCAT"): see Hills v Djordjevic [2014] NSWCATAP 75. Those proceedings are listed for hearing before this Court on Thursday 16 April 2015.

2. Before the Court today is a Notice of Motion filed by the defendant on 2 April 2014 which seeks orders in the following terms:

“1. The summons commencing an appeal which is listed for hearing on 16 April 2015 be vacated to the Sydney Local Court, Level 2 Downing Centre, 143-147 Liverpool Street Sydney.

2. Costs against the plaintiff at judgment."

3. It will be apparent from the Notice of Motion that the terms of the orders sought are somewhat nebulous. The Notice of Motion is supported by an affidavit of Yashvi Shah, solicitor, sworn 2 April 2015.

4. The plaintiff did not appear before me in person but was present by way of telephone link for the entirety of the hearing, and for the entirety of the delivery of this judgment. As I foreshadowed to the solicitor for the defendant at the outset of the hearing, there is a fundamental issue as to whether or not I have the power to make the first of the orders sought in the Notice of Motion.

5. Section 83 of the Civil and Administrative Tribunal Act 2013 (“the CAT Act”) is in the following terms:

83 Appeals against appealable decisions

(1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.

(2) A person on whom a civil penalty has been imposed by the Tribunal in proceedings in exercise of its enforcement or general jurisdiction may appeal to the appropriate appeal court for the appeal on a question of law against any decision made by the Tribunal in the proceedings.

(3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following:

(a) an order affirming, varying or setting aside the decision of the Tribunal,

(b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.

(4) Without limiting subsection (3), the appropriate appeal court for an appeal against a civil penalty may substitute its own decision for the decision of the Tribunal that is under appeal.

(5) Subject to any interlocutory order made by the court hearing the appeal, an appeal under this section does not affect the operation of the appealable decision of the Tribunal under appeal or prevent the taking of action to implement the decision.

6. In light of s. 83 of the CAT Act, I am satisfied that the proceedings which have been brought by the plaintiff are proceedings which this Court has jurisdiction to determine.

7. The more pressing question is whether or not this Court has the power to make the first of the orders sought in the Notice of Motion. When I asked the solicitor for the defendant to point me to the statutory provision(s) relied upon as conferring that power, I was ultimately directed to s 146(1) of the Civil Procedure Act 2005 (“the CPA”) which is in the following terms:

Transfer of proceedings to lower court

(1) If the Supreme Court is satisfied, in relation to proceedings before it:

(a) that the proceedings could properly have been commenced in the District Court or the Local Court, and

(b) that any cross-claim in the proceedings could properly have been brought as a cross-claim in the District Court or the Local Court,

the Supreme Court may order that the proceedings, including any such cross-claim, be transferred to the District Court or to the Local Court as the case requires."

8. 8 It will be apparent from the terms of s. 146(1) that the power conferred upon this Court to transfer proceedings to a lower court is discretionary. However that discretion is only enlivened if the Court is satisfied (inter alia) that the relevant proceedings could properly have been commenced in the Local Court. In the context of the present case, the relevant proceedings are those brought by the plaintiff seeking to appeal against the decision of NCAT.

9. 9 I am not satisfied that those proceedings could have been commenced in the Local Court. The jurisdiction of the Local Court is set out in s 9 of the Local Court Act 2007. That jurisdiction does not extend to bringing an appeal against a decision of NCAT. Moreover, there is no provision in the CAT Act which confers any jurisdiction upon the Local Court to hear an appeal from a decision of NCAT. Section 83 of the CAT Act confers that power on this Court, subject to leave being granted.

10. It follows that one of the fundamental prerequisites to the exercise of discretion under s 146(1)(a) of the CPA, namely that the proceedings sought to be transferred could properly have been commenced in the Local Court, has not been made out. In these circumstances, the Notice of Motion must fail.

11. I should also note that when given the opportunity to address me in relation to the power to make the orders sought, the solicitor for the defendant responded by reiterating that she had instructions to seek such orders. I do not doubt that that is the case. However at the risk of stating the obvious, the mere fact that a party may instruct his or her legal representatives to seek a particular order does not mean that the order sought will be made. First and foremost, the Court must have the requisite power to make the order sought. For the reasons set out, I am not satisfied that such power exists in the present case.

12. Accordingly, in those circumstances, I make the following orders:

1. The Notice of Motion of 2 April 2015 is dismissed.

2. The hearing date of 16 April 2015 before this Court is confirmed.

SHORT DISCUSSION RE COSTS

13. As to the question of costs, it has been put to me that the defendant is not in a position to meet any costs order in the event that one is made. The fact is that the Notice of Motion has failed. In my view, there is no basis upon which to depart from the general rule that costs should follow the event. Accordingly, I further order that the defendant pay the plaintiff's costs of the Notice of Motion.

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Decision last updated: 15 April 2015