James and Skyview Windows Pty Ltd (Civil Dispute)
[2012] ACAT 23
•24 April 2012
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
JAMES & SKYVIEW WINDOWS PTY LTD (Civil Dispute) [2012] ACAT 23
XD 12/054
Catchwords: CIVIL DISPUTE – seeking an order for a certificate of compliance for glazing – an order of the Supreme Court for payment still remaining to be complied with – whether the proceedings are an attempt to obtain the certificate required to allow a Certificate of Occupancy and Use to be issued without complying with the Supreme Court order – prevention of the abuse of process: protection of the integrity of process
List of cases: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27
Tribunal: Ms J. Lennard, Senior Member
Date of Orders: 24 April 2012
Date of Reasons for Decision: 24 April 2012
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD12/054
BETWEEN:
TREVOR JAMES
Applicant
AND:
SKYVIEW WINDOWS PTY LTD
Respondent
TRIBUNAL: Ms J. Lennard, Senior Member
DATE:24 April 2012
ORDER
The application is dismissed.
………………………………..
Ms J. Lennard
Senior Member
REASONS FOR DECISION
Skyview Windows Pty Ltd manufactures and supplies windows. Skyview contracted with Matken Constructions for the supply of windows for installation in a new home being constructed at 21 Kettle St Gungahlin.
Construction of the house was completed in February 2007.
No Certificate of Compliance has been supplied.
The Applicant seeks an order that Skyview Windows provide a certificate of compliance in relation to the glazing meeting the relevant Australian Standard.
Skyview provided the Tribunal with a copy of consent orders made in the Supreme Court of the Australian Capital Territory on 6 November 2009 in matter SC/5 of 2009 between Matken Constructions Pty Limited and Trevor James. Those orders provide, inter alia,:
...
4. The defendants [Trevor James] pay directly to the plaintiff the sum of $9,372.56 in full satisfaction of the sum allegedly outstanding to David Fraser Plumbing.
5. Upon payment in order 4 being made. The plaintiff deliver up to the defendants each certificate the plaintiff is required to provide to the defendants upon completion of the building work to enable the defendants to apply for a Certificate of Occupancy and Use.
The payment referred to in order 4 of the Supreme Court has not been made.
The first issue for the Tribunal is whether the application now made is an abuse of process. The respondent submits that this application is an attempt to obtain the certificate necessary to allow a Certificate of Occupancy and Use to be issued without complying with the order for payment of the amount of $9,372.56. The Respondent submits that the applicant is estopped by the order of the Supreme Court form pursuing the certificates in ACAT and that the application is vexatious and an abuse of process.
The respondent referred the tribunal to Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 which dealt with the issue of abuse of process. The High Court stated that:
What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues. One example is the line of authority dealing with the stay of proceedings instituted in a second forum where there are pending proceedings in another forum and the continuance of the second proceedings would be an abuse of the process of the first forum.
[9]
The High Court referred to the principle that the power of a court to prevent the abuse of its processes was linked integrally to the power of the court to protect the integrity of those processes. While noting that what amounts to abuse of court process is insusceptible of a formulation comprising closed categories, the High Court gave as an example the line of authority dealing with the stay of proceedings instituted in a second forum where there are pending proceedings in another forum and the continuance of the second proceedings would be an abuse of the process of the first forum.
Abuse of process, while imprecisely defined, is taken to include procedures that are vexatious or oppressive, undermine public confidence in the administration of justice or are instituted for an improper purpose.
In this matter the applicant has the means to obtain the certificate in relation to the windows by complying with the orders of the Supreme Court, and if necessary, seeking through the Supreme Court to enforce order 5 made by consent on 6 November 2009.
The integrity of the processes of both the Supreme Court and of ACAT would be undermined if the applicant was allowed to ignore the existing court orders and seek through an order by ACAT to obtain a benefit which the Supreme Court has made conditional upon his payment of an amount to the other party.
This application is an abuse of process.
………………………………..
Ms J. Lennard
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER: | XD 10/054 |
PARTIES, APPLICANT: | Trevor James |
PARTIES, RESPONDENT: | Skyview Windows Pty Ltd |
COUNSEL APPEARING, APPLICANT | |
COUNSEL APPEARING, RESPONDENT | |
SOLICITORS FOR APPLICANT | |
SOLICITORS FOR RESPONDENT | |
TRIBUNAL MEMBERS: | |
DATES OF HEARING: | |
PLACE OF HEARING: |
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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