J a Briscoe v Jamdau Investments Pty Ltd (in liquidation) ACN 104852968
[2014] NSWCATCD 24
•14 March 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: J A Briscoe v Jamdau Investments Pty Ltd (in liquidation) ACN 104852968 [2014] NSWCATCD 24 Hearing dates: 12 March 2014 Decision date: 14 March 2014 Jurisdiction: Consumer and Commercial Division Before: M Harrowell, Principal Member Decision: 1. This application to set aside the decision of the Tribunal made in application HB 06/53466 on 8 July 2009 is stayed until further order or until conclusion of the Supreme Court of New South Wales proceedings number 2013/266992, whichever is the earlier.
2. The applicant is directed to file in the Tribunal a copy of any orders and reasons made in which finally determine or otherwise dispose of the Supreme Court Proceedings within 7 days of those orders or reasons being published by the Supreme Court.
3. The applicant is to pay the costs of the proceedings before the Tribunal on 4 and 12 March 2014, such costs to be agreed or assessed on an ordinary basis.
4. The remainder of any costs of the application to the Tribunal is reserved pending an outcome of the Supreme Court proceedings.
Catchwords: Abuse of process, stay of concurrent proceedings Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001 Category: Principal judgment Parties: Judith Anne Briscoe (applicant)
Jamdau Investments Pty Ltd (in liquidation) ACN 104852968 (respondent)Representation: C Bannon of counsel for the applicant
M Pavey solicitor for the respondent
File Number(s): HB 14/11133 Publication restriction: Unrestricted
reasons for decision
The applicant (Briscoe) filed application HB 14/11133 seeking various orders from the Tribunal in connection with application HB 06/53466 (Original Proceedings).
The Original Proceedings were a building claim commenced by the respondent (Jamdau Investments Pty Ltd) seeking to recover from the applicant unpaid monies under a home building contract. The Original Proceedings were heard and determined by the Tribunal on 8 July 2009. As will be evident from the file number of the Original Proceedings, they had a long history before the Tribunal finally concluding the proceedings. This included various directions hearings at which the applicant was represented by a lawyer.
The applicant claims that she did not have notice of the hearing conducted by the Tribunal on 8 July 2009. For present purposes it is sufficient to record that she says she understood the proceedings had been settled, that a deed of settlement have been entered into and that the proceedings were otherwise to be terminated. She says this settlement occurred in May 2008, after which time the applicant says she sold her interest in the property, the subject of the building works and left to travel around Australia. Consequently, she says she did not receive notice of the hearing which occurred on 8 July 2009.
The applicant says that the orders made in the Original Proceedings should be set aside on two bases.
Firstly, the applicant has applied under section 68 of the Consumer Trader and Tenancy Tribunal Act 2001. Because these proceedings were heard and determined in the Consumer Trader and Tenancy Tribunal, they are to be dealt with under the provisions of that legislation in accordance with schedule 1 of the Civil and Administrative Tribunal Act 2013. In relation to this application, the applicant, correctly, submitted to the Tribunal that the present application "does not fall within the terms of section 68". One of the reasons was that the amount claimed exceeded $30,000 and therefore regulation 25 of the Consumer Trader Tenancy Tribunal Regulation 2009 excludes claims greater than $30,000 from the provisions of section 68. The Tribunal accepted this submission is correct and dismissed that part of the application seeking a rehearing pursuant to section 68.
Secondly, the applicant has applied to the Tribunal to set aside the decision made in the Original Proceedings on the basis that the applicant was denied procedural fairness in that she did not receive any notice of hearing. In this regard the applicant relies on the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj 209 CLR 597 and various decisions in New South Wales Courts including the decision of the Court of Appeal in the Supreme Court of New South Wales in Atkinson v Crowley [2011] NSWCA 194. In short, the applicant says that the Tribunal may set aside its own decision if it is persuaded that a party had been denied procedural fairness. In these circumstances the applicant says the purported exercise of the power would be a nullity and the Tribunal would be entitled to embark upon a proper hearing.
In relation to this application, the Tribunal was informed that there are is already in existence proceedings before the Supreme Court of New South Wales seeking orders in the nature of certiorari, to quash the Tribunal's decision in the Original Proceedings. These proceedings were apparently commenced in consequence of the respondent, now in liquidation, filing certificates in both the District Court of New South Wales and the Local Court of New South Wales and thereafter seeking to recover the judgement debts by way of the issue of bankruptcy notices to the applicant. These bankruptcy notices have apparently been stayed by the Federal Court of Australia on terms that the applicant expeditiously prosecutes proceedings in the Supreme Court of New South Wales to quash the Tribunal's decision in the Original Proceedings. The reason for the present application is that the applicant says that a failure to first pursue all available rights of challenge to the decision in the Tribunal may give rise to the Supreme Court refusing any relief on discretionary grounds. The applicant referred the Tribunal to a number of cases in support of this proposition.
Having regard to the sequence of events and the nature of the relief sought, the question arises as to whether or not the application to the Tribunal, made after the application to the Supreme Court, constitutes an abuse of process or should otherwise be stayed. If yes, the second ground of challenge should be dismissed or stayed. If no, the application must be fixed for hearing before the Tribunal and determined.
In the course of argument, the Tribunal raised its concerns about the multiplicity of proceedings and the likely consequences if the Tribunal determined to dismiss the application to set aside the decision in the Original Proceedings. The applicant Counsel conceded that it was likely any refusal to set aside the decision in the Original Proceedings would thereafter be subject to further applications to a court, including prosecuting the Supreme Court proceedings to the conclusion.
The applicant contended that the application to the Tribunal did not constitute an abuse of process. The applicant said that the application made was for the Tribunal to set aside its own decision and that the commencement of the Supreme Court proceedings had been done urgently having regard to the expiry of the Bankruptcy Notice which had been issued to the applicant by the respondent. The applicant also says that the relief sought in the Supreme Court proceedings is different. The applicant did not refer to any authority in relation to whether or not the application to the Tribunal constituted an abuse of process.
The respondents submitted that the present proceedings were commenced second in time in the Tribunal and did constitute an abuse and should be dismissed. Again no authority was referred to by the respondent.
The Tribunal has power to determine its own procedures. Section 28 of the CTTT Act provides that the Tribunal may dismiss proceedings if they are frivolous or vexatious or for any other reason that appears to be sufficient (subsection (i)) or may stay proceedings (subsection (j)). Proceedings that constitute an abuse of process may be dismissed or stayed under these provisions. The issue is whether this should occur in the present circumstances because of the nature of the proceedings now brought in the Supreme Court and by reason of the fact that those proceedings were first commenced.
It is clear that commencing multiple proceedings in circumstances where the first proceeding is able to provide a complete remedy may constitute an abuse of process. Williams v Hunt [1905] 1 KB 512. In the present dispute, different remedies are sought, one for the Supreme Court to quash the Tribunal decision and the other for the Tribunal to set aside its own decision. However, there are common issues of fact and law to be tried in connection with the relief sought. Indeed, the documents filed in the Tribunal which are relied upon as evidence by the applicant are the same affidavits filed in the Supreme Court proceedings.
Where a superior court has proceedings before it which were commenced at a time earlier than the application made to the Tribunal, in my opinion it is inappropriate for the Tribunal to proceed to determine the application to set aside where the issues of fact and law the Tribunal is asked to determine are issues of fact and law which the Supreme Court is also required to determine. In the present case, the only difference is the remedy which might be granted. The applicant has elected to commence proceedings in the Supreme Court which, if successful, will result in orders to quash the decision in the Original Proceedings and render a determination of the set aside application unnecessary. If the application in the Supreme Court is unsuccessful, the decision in the Original Proceedings will remain on foot. Therefore, the application when determined by the Supreme Court will finally resolve the dispute.
It was made clear by Counsel that an adverse decision by the Tribunal is unlikely to conclude the dispute between the parties because the applicant may thereafter continue with the proceedings before the Supreme Court. Therefore it seems to me that the Tribunal conducting the set aside hearing is likely to involve the parties in incurring unnecessary expense. In this regard the parties agree that one day hearing may be necessary.
Finally, the issue which has been raised will, if proven on the facts, give rise to a question of law relating to the Tribunal inappropriately exercising its powers. The question of law could be referred to the Supreme Court by the Tribunal pursuant to section 66 of the CTTT Act although such a referral is not necessary having regard to that issue already been raised in the Supreme Court proceedings. The fact there is a power to do so and having regard to the position taken by the applicant (that a challenge may be made by the applicant in the Supreme Court if the set aside application is unsuccessful) reinforces my view that the Supreme Court is the appropriate and convenient forum to resolve this dispute
In ordinary circumstances the Tribunal would dismiss the present application. However, there is a possibility that the Supreme Court proceedings might be concluded without resolution (for example if the proceedings were discontinued). In this event, it may be that the applicant would seek to pursue the application to set aside. Accordingly, the appropriate order is that application HB 14/11133 be stayed until further order or until conclusion of the Supreme Court of New South Wales proceedings number 2013/266992, whichever is the earlier. The applicant should file in the Tribunal a copy of any orders and reasons made disposing of the Supreme Court Proceedings.
In relation to the question of costs, the Tribunal orders that the applicant pays the costs of the proceedings before the Tribunal on 4 and 12 March 2014, such costs to be agreed or assessed on an ordinary basis.
In relation to the remainder, if any, of the costs of the application to the Tribunal, such costs are reserved pending an outcome of the Supreme Court proceedings.
M Harrowell
Principal Member
Civil and Administrative Tribunal of New South Wales
14 March 2014
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 17 May 2014
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