Lovedee v Anastasopoulos

[2004] NSWSC 771

CITATION:	Lovedee v Anastasopoulos [2004] NSWSC 771
HEARING DATE(S):	24 August 2004
JUDGMENT DATE:	3 September 2004
JURISDICTION:	Common Law
JUDGMENT OF:	Master Malpass at 1
DECISION:	The summons is dismissed; the plaintiff is to pay the costs of the summons; the exhibits may be returned.
CATCHWORDS:	Interlocutory decision on jurisdiction - defence filed and matter ready for hearing - extension of time and leave.
LEGISLATION CITED:	Consumer Trader & Tenancy Act 2001
PARTIES :	Robert Lovedee (Plaintiff) George Anastasopoulos (Defendant)
FILE NUMBER(S):	SC 10720/04
COUNSEL:	In person (Plaintiff) Mr J Michos (Solicitor) (Defendant)
SOLICITORS:	JSM Lawyers (Defendant)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	30036/03
LOWER COURT JUDICIAL OFFICER :	Haskett LCM, Maloney LCM

- 6 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Friday 3 September 2004

10720 of 2004 Robert Lovedee v George Anastasopoulos

JUDGMENT

1 Master: The plaintiff and the defendant have fallen into dispute over matters arising from motor vehicle transactions in 2002. The amount in dispute is in the order of $13,000.

2 What was purchased by the defendant has been returned. It seems to be common ground that the defendant is entitled to a refund. Largely, the dispute seems to concern the question of whether or not the sum to be refunded has in fact been paid.

3 The defendant brought an application in the Consumer, Trader & Tenancy Tribunal (the Tribunal). The application was set down for hearing. The court has been told that the defendant turned up late on the hearing day. In his absence, the application was dismissed. There was no hearing on the merits. Documentation from the Tribunal reveals that it was dismissed because there was no appearance by the applicant by 9.50am and that there was no satisfactory explanation for such non-attendance. An application was made for a rehearing. The application was not granted. This took place on 3 March 2003.

4 In April 2003, the defendant commenced proceedings in the Local Court to recover the disputed sum. In June 2003, the plaintiff filed a notice of grounds of defence (the defence did not raise any jurisdictional issues). The matter came before the court on a number of occasions. The parties engaged in case preparation and the proceedings became ready for determination. The proceedings were referred to arbitration. The arbitration was fixed for 29 October 2003. The arbitration was aborted. It was then listed for review to take place on 10 February 2004 and for hearing to take place on 8 March 2004.

5 Subsequent to the filing of his defence, the plaintiff has from time to time pursued jurisdictional issues. It appears that during 2003, three unsuccessful applications were made to a registrar. It seems that these were pursued on the basis of res judicata. Since then, two further applications were made to magistrates.

6 A notice of motion dated 27 January 2004 came before Maloney LCM on 10 February 2004. The notice of motion sought a dismissal of the proceedings. The learned magistrate ordered the dismissal of the notice of motion.

7 It may be that there is some dispute as to the nature of the application made before Maloney LCM. What appears in the transcript perhaps leaves the matter somewhat unclear. However, on any view, the substance of the application seemed to be that once an application is made in the Tribunal, the jurisdiction remains in it and not elsewhere.

8 On 8 March 2004, the plaintiff sought once again to re-agitate the issue of jurisdiction. The proceedings came before Haskett LCM. There was dispute between the parties as to whether or not the learned magistrate was being asked to rehear the same question as had been litigated on 10 February 2004. The contention then being put by the plaintiff was in terms that by reason of s22(3) of the Consumer Trader & Tenancy Tribunal Act 2001 (the Act) the Local Court lacked jurisdiction to entertain the defendant’s claim.

9 The court has been told that because the learned magistrate was faced with a lack of transcript as to what had previously happened she took the course of proceeding to hear and determine the application. She made findings that the Local Court had jurisdiction and that the matter should proceed to a hearing.

10 On 15 March 2004, the plaintiff filed a summons in this court. It seeks leave to appeal “against the decision to hear proceedings at the Downing Centre”. It may be that it throws up some uncertainty as to which decision is the subject of the application. The summons was supported by a short affidavit sworn by the plaintiff’s then solicitor (Mr Picone).

11 No grounds of appeal have been prepared. The affidavit sworn by Mr Picone informs the court that the appeal is brought on the basis that s22(3) applies.

12 The application for leave came on for hearing on 24 August 2004. The plaintiff relied on the further affidavit sworn by Mr Picone. It annexes transcript and other documents. The defendant relied on an affidavit sworn by his solicitor (Mr Michos). The defendant also tendered further documents (Exhibits 1 and 2).

13 The plaintiff has appeared in person.

14 It appears that the retainer of Mr Picone has come to an end. The court and the defendant were informed of this by facsimile transmitted on 23 August 2004.

15 The plaintiff has informed the court that Mr Englebrecht of counsel had been briefed to appear on his behalf. He further informed the court that Mr Englebrecht had suddenly become ill and was not well enough to appear.

16 The plaintiff then proceeded to present his own case. He said little in support of his application. The defendant relied on the written outline of submissions prepared by Mr Michos. These were supplemented by brief oral argument.

17 The plaintiff identified the issue that he wished to litigate. He relied on the jurisdictional issue said to arise from the provisions of s22(3). Apart from identifying this issue, he did not otherwise argue the questions of leave and jurisdiction. He did not make any application for extension of time in which to bring the summons.

18 The question of whether or not the plaintiff needs an extension of time to bring the present application has its complications and has been little argued. The present jurisdictional issue may have been agitated on at least two occasions. It appears that it may have been first dealt with by a magistrate on 10 February 2004. If that be the relevant date for present purposes, the application has been brought out of time.

19 As earlier mentioned, no application for extension of time was made by the plaintiff. The question of whether or not he should have an extension of time has been left unaddressed.

20 If an extension of time is required, the application is presently incompetent and doomed to failure for this reason alone.

21 The plaintiff needs leave to appeal because his challenge is to a decision made on an interlocutory question. I have had no assistance from the plaintiff on the question of why leave should be granted.

22 The court has a discretionary power to grant leave. In the exercise of the discretion it has regard to any statutory requirements and the relevant circumstances of the particular case before it.

23 When regard is had to what has been put before the court, I am not satisfied that leave should now be granted to maintain an appeal on the jurisdictional issue founded on s22(3).

24 Any jurisdictional challenge should be promptly brought. In this case, the present jurisdictional issue has been belatedly made. The delay in the making of it has seen the defendant being put to the expense of preparing his case for arbitration and then trial. Further, the plaintiff has failed to offer a satisfactory explanation for his delay.

25 The present jurisdictional challenge was made at a very late stage in the proceedings. It was not raised until early 2004 (either on 10 February 2004 or 8 March 2004). By that time, the proceedings had been on foot since April 2003. The plaintiff had filed a defence submitting to the jurisdiction. The parties had undergone case preparation. The proceedings were ready for arbitration or trial. A hearing date had been fixed. The most recent application was made on that hearing day.

26 It is desirable that the dispute between these two parties should expeditiously come to finality with as little further expense as possible. I am told that the costs so far incurred are grossly disproportionate to what is in dispute. These proceedings are presently frustrating a hearing in the Local Court. It seems to me that justice is best served if the proceedings in the Local Court continue to a final determination. Any dissatisfied party can then consider his appellate entitlements.

27 Because of these matters alone, it seems to me that leave should be refused.

28 In those circumstances, it is unnecessary to explore other relevant considerations. However, perhaps brief reference should be made to s22(3).

29 Section 22(3) is in the following terms:-

If, at the time when an application was made to the Tribunal in accordance with this Act, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue.

30 In undertaking the task of properly construing this provision, it would be necessary to have regard to other provisions contained both in that section and the Act. The objects of the Act may be of importance. It may be helpful to refer to the parliamentary speeches.

31 In the circumstances of this case, because of the existing problems concerning the need for an extension of time and a grant of leave, the court is loath to embark on that task. It is a task which is preferably carried out with the assistance of full argument from all parties.

32 In the absence of such full argument, I take the view that the question is best put aside for another day. This application can be disposed of without addressing it.

33 The plaintiff bears the onus of satisfying the court that he is entitled to the relief sought. In my view, he has failed to discharge that onus.

34 The summons is dismissed. The plaintiff is to pay the costs of the summons. The exhibits may be returned.

Last Modified: 09/03/2004