Kingsbury-Carr v Breden & Ors (Civil Disputes)

[2009] ACAT 2

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CITATION: KINGSBURY-CARR v BREDEN & ORS (Civil Disputes) [2009] ACAT 2 (24 March 2009)

CS 81493 of 2008
CS 82659 of 2008
CS 82660 of 2008
CS 82661 of 2008

Catchwords:             PROCEDURE – joining matters – substantially similar claims – public policy

PROCEDURE – ACT Civil & Administrative Tribunal – claim to exceed Tribunal jurisdiction – referral to Magistrates Court

Partnership Act 1963 (ACT)

Tribunal:Athol Morris, Registrar

Date:     24 March 2009

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          CS 81493 of 2008
  CS 82659 of 2008
  CS 82660 of 2008
  CS 82661 of 2008

BETWEEN:    NEVILLE KINGSBURY-CARR

Applicant

AND:ELIZABETH BREDEN and PHARMACY SERVICES (ACT) PTY LTD

First and Second Respondents
AND

BETWEEN:    NEVILLE KINGSBURY-CARR

Applicant

AND:             DALE JORDAN

Respondent
AND

BETWEEN:    NEVILLE KINGSBURY-CARR

Applicant

AND:             ROBERT MARKBY NELSON TALL

Respondent
AND

BETWEEN:    NEVILLE KINGSBURY-CARR

Applicant

AND:             GARY JOHN CAIRNS

Respondent

ORDER

1. That matters CS 08/81493, CS 08/82659, CS 08/82660 and CS 08/82661  be consolidated;
2. That the consolidated matters to be referred to the ACT Magistrates Court for such case management as may be required, and for hearing pursuant to Rule 3776 of the Court Procedures Rules 2006 and the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009.
3. That Orders 1 and 2 sought in the Application for Interim of Other Orders filed 6^th March 2009 be dismissed.

…………………………….
  Athol Morris, Registrar
  24 March 2009           

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          CS 81493 of 2008
  CS 82659 of 2008
  CS 82660 of 2008
  CS 82661 of 2008

BETWEEN:    NEVILLE KINGSBURY-CARR

Applicant

AND:ELIZABETH BREDEN and PHARMACY SERVICES (ACT) PTY LTD

First and Second Respondents

AND

BETWEEN:    NEVILLE KINGSBURY-CARR

Applicant

AND:             DALE JORDAN

Respondent

AND

BETWEEN:    NEVILLE KINGSBURY-CARR

Applicant

AND:             ROBERT MARKBY NELSON TALL

Respondent
AND

BETWEEN:    NEVILLE KINGSBURY-CARR

Applicant

AND:             GARY JOHN CAIRNS

Respondent

REASONS FOR DECISION

1. Mr Kingsbury-Carr has commenced proceedings against 4 people, which proceedings can be divided effectively into two groups - Ms Breden, representing the issues arising in his dispute with the Capital Chemists at O’Connor, ACT, and Messrs Jordan, Tall and Cairns, representing the partners owning the Capital Chemist at Lyneham with whom Mr Kingsbury –Carr has a similar, though not entirely congruent, dispute.

2. I shall for the purposes of clarity in this Reasons for Decision, refer to Ms Breden as “the O’Connor Chemist” and Messrs Jordan, Tall and Cairns as “the Lyneham Chemist”.  I do not factor into these Reasons for Decision any interlocking directorates or overlapping personal relationships that might exist between the parties in respect to the chemist other than the one with which I have identified them.

3. In making my decision, I offered, and Mr Kingsbury-Carr accepted my offer to hand down written reasons for my decision.  These are they.

4. Turning firstly to the Lyneham chemists, I observe that the action against each member of the group is substantially identical, differing only in the allegation of disfunctionality made against one member of the group - Mr Dale Jordan – that was not made against the others.  However, the amounts claimed, and the amendments to those amounts, are identical.  The total sum claimed against all 3 members of the Lyneham Chemist group far exceeds the jurisdictional limit of the ACAT or the (then) Small Claims Court.

5. Mr Kingsbury-Carr readily stated that when filing the matters, he was approaching a limitations deadline.  I suggested to him that the reason for filing in the (then) Small Claims Court jurisdiction was a matter of convenience so as not to miss out on the ability to file in time.  He agreed that this was a factor in his decision.

6. The Tribunal then looked at how he sought to bring substantially what would appear to be an action against a partnership for an amount that would in other circumstances exceed the Tribunal’s jurisdiction against three separate persons in the partnership.  Mr Kingsbury-Carr asserted that provisions in the Partnership Act 1963 (ACT) allowed this, and that he had received Counsel’s advice that this was a legitimate means of proceeding.

7. No evidence was adduced as to the actual ownership and control of the Lyneham Pharmacy.

8. I do not doubt that Mr Kingsbury-Carr has received the advice he says.  However, I do not feel constrained to go into the rights and wrongs of this position, as I have made my decision upon other grounds.  I hold that this area does not need to be explored, as whether Mr Kingsbury-Carr COULD bring such an action does not affect whether he MAY do so.

9. Upon looking at the matter, and noting the issues being substantially the same in each matter, I determined that one of two things would have to occur if the matters remained in ACAT.  Either the matters would be heard sequentially, which would tie up resources (both ACAT’s and the respondents’) unjustifiably, or the matters would have to be amalgamated into one matter, which would exceed the jurisdiction of the Tribunal.

10. Mr Kingsbury-Carr pointed out correctly that exceeding the jurisdictional limit could occur by agreement.  When I put this to Mr Shillington, he was quick to state that there would be no agreement to jurisdiction or that course of action.  I determined therefore, that this was not likely to happen.

11. Mr Kingsbury-Carr then alleged that there was a costs detriment to him by being forced up into a jurisdiction that had the power to award costs.  He cited a decision of (then) Master Connelly of the ACT Supreme Court that said exactly this, although he was unable to hand up a proper extract of the case, or provide the context in which the Master made such a remark.  I shall deal with this submission infra.

12. Having decided that these three matters should be amalgamated, I turned to the question of the O’Connor Chemist.  Although the facts surrounding the matter are pleaded differently, they relate to substantially similar claims – principally, redundancy, termination and long service entitlements.  It seemed to me that if the Lyneham matter were decided, the O’Connor matter (excluding the laundry allowance question) would fall into line.  And the laundry issue is over such a paltry sum that it would not be likely to cause much difficulty to a Magistrate who could easily enquire about it in the course of the other actions.

13. Accordingly, it seemed to me that as a matter of public policy, to have what amounts to the same set of facts – or very similar facts – aired twice in different fora (or four times in the one forum) was not in the taxpayers’ interest.  Similarly, there is no disadvantage to Mr Kingsbury-Carr that I can see, in running the matter only once.  And there are very positive benefits to using fewer legal resources – both public (Tribunal and /or Court time), and private (solicitors and barristers) thus freeing up a busy system for other users.

14. I see no difficulty in letting the O’Connor Chemist matter run alongside the Lyneham Chemist matter.  If it should turn out that the magistrate hearing the Lyneham Chemist matter(s) feels that I am in error in this, no harm has been done – he/she can remit the O’Connor Chemist matter back to the ACAT and it can be dealt with then.

15. Mr Kingsbury-Carr’s asserts that he is placed at a greater costs risk than the respondent.  This is because he is representing himself, so if he loses he will be at risk of paying the (represented) applicant’s costs, whereas if he wins, he will have no lawyer’s costs to claim.  With respect this is troubling logic on a number of levels.

16. In the first place, it is after all Mr Kingsbury-Carr’s application. Such an assertion assumes that he lacks faith in the validity of his claim.  But if it “has legs” there is no reason why he should not be successful, in whole or in part.

17. Secondly, if the application has merit, depending upon the degree of merit, even if he loses it is a matter for the Court’s discretion as to whether it awards costs against him.  A Court has discretion in the question of the awarding of costs.  An award may be made not merely because he was unsuccessful, per se, but rather if he either ran a pointless case, or ran it so ineptly that it caused costs to be incurred unnecessarily by the other party.

18. And thirdly, the concept of “costs” is neither a reward for winning nor a penalty for losing.  It is an attempt to recompense the legal representational expenses a party which has been put to (unnecessary) expense in defending a position. If Mr Kingsbury-Carr causes this, then costs may follow.  If he represents himself, he incurs no such expenses, and does not need to feel aggrieved.

19. Finally, I should point out passim, that I formally reject Mr Shillington’s application for dismissal of the application as an abuse of process.  Whilst Mr Shillington did not appear to really press this very hard, I note that I reject this head of the application in proceedings on the basis that to enquire sufficiently into the question to make such a decision would involve a substantive hearing of the issue itself.  On its face, Mr Kingsbury-Carr’s application does not appear to be a matter that should not be given some oxygen – it just should not occur in the manner that it has been pleaded to date.

20. Similar logic applies to order 2 of the application in proceedings.  In effect this has been dealt with by the orders I have made in respect of alternative order 3 of the Application.

A. Morris
Registrar
24 March 2009

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      CS 81493 of 2008
  CS 82659 of 2008
  CS 82660 of 2008
  CS 82661 of 2008

APPLICANT:                NEVILLE KINGSBURY-CARR
RESPONDENT:            ELIZABETH BREDEN & ORS
PARTY JOINED:          N/A

COUNSEL APPEARING:       APPLICANT:          

RESPONDENT:      MR D SHILLINGTON

PARTY JOINED:    

SOLICITORS:  APPLICANT:          

RESPONDENT:    MEYER VANDENBERG

PARTY JOINED:    

OTHER:  APPLICANT:          SELF

RESPONDENT:      

PARTY JOINED:    

TRIBUNAL MEMBER/S:       MR A MORRIS

DATE/S OF HEARING:          24 MARCH 2009      PLACE: CANBERRA

DATE/S OF DECISION:           24 MARCH 2009     PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS: