Minimedia Productions Pty Limited v Consumer Trader and Tenancy Tribunal of New South Wales
[2010] NSWSC 240
•29 March 2010
CITATION: Minimedia Productions Pty Limited v Consumer Trader and Tenancy Tribunal of New South Wales and Ors [2010] NSWSC 240 HEARING DATE(S): 29 March 2010
JUDGMENT DATE :
29 March 2010JUDGMENT OF: Johnson J at 1 EX TEMPORE JUDGMENT DATE: 29 March 2010 DECISION: The Amended Summons filed on 4 February 2010 is dismissed as against the First Defendant. No order as to costs is made with respect to the First Defendant. CATCHWORDS: ADMINISTRATIVE LAW - claim for prerogative and declaratory relief arising from proceedings before CTTT - proceedings settle between active parties - CTTT files submitting appearance - Plaintiff seeks to proceed against CTTT only - Plaintiff asserts public interest in Court making declarations concerning CTTT procedures for assistance of future litigants before CTTT - Plaintiff attempting to obtain advisory opinion - abstract or hypothetical question - no utility in proceeding further - proceedings dismissed LEGISLATION CITED: Supreme Court Act 1970 CATEGORY: Principal judgment CASES CITED: Oil Basins Limited v The Commonwealth of Australia (1993) 178 CLR 643
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Australian Institute of Private Detectives Ltd v Privacy Commissioner (2004) 139 FCR 394PARTIES: Minimedia Productions Pty Limited (Plaintiff)
Consumer Trader and Tenancy Tribunal of New South Wales (First Defendant)
Robert Graeme Pritchard (Second Defendant)
MarketForce One Pty Limited (Third Defendant)FILE NUMBER(S): SC 2010/9538 COUNSEL: Ms F Beattie (director of Plaintiff)
Ms D Hartman (submitting appearance by First Defendant)
Mr P Fagan (Second and Third Defendants)SOLICITORS:
Crown Solicitor's Office (First Defendant)
DC Legal (Second and Third Defendants)LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW LOWER COURT FILE NUMBER(S): ---
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LISTJohnson J
29 March 2010
JUDGMENT2010/9538 Minimedia Productions Pty Limited v Consumer Trader and Tenancy Tribunal of New Suth Wales and Ors
1 JOHNSON J: On 11 January 2010, a Summons was filed in the Administrative Law List of the Common Law Division of this Court seeking prerogative and declaratory relief with respect to certain decisions of the First Defendant, the Consumer Trader and Tenancy Tribunal of New South Wales.
2 The Plaintiff is Minimedia Productions Pty Limited. The Second Defendant is Robert Graeme Pritchard, and the Third Defendant is MarketForce One Pty Limited. There were proceedings before the First Defendant, Consumer Trader and Tenancy Tribunal of New South Wales (“the CTTT”) as between the Plaintiff and the Second and Third Defendants, which led to the bringing of these proceedings in this Court.
3 The matter came before Registrar Bradford on 28 January 2010, and certain directions were given. On 4 February 2010, an Amended Summons was filed. On 8 February 2010, the CTTT filed a submitting appearance. On 16 February 2010, the matter came before R A Hulme J. The Plaintiff sought a stay of certain proceedings in the CTTT, pending further order of this Court. His Honour made an order staying the hearing of the proceedings in the CTTT pending further order of the Court, and directed that the matter be referred forthwith to Registrar Bradford so that a hearing date of the Amended Summons could be fixed.
4 On 16 February 2010, Registrar Bradford listed the Amended Summons for hearing before a Judge today, and gave directions for steps to be taken in preparation for that hearing.
5 On 26 March 2010, a Notice of Discontinuance as between the Plaintiff and the Second and Third Defendants was provided electronically to my chambers. The Notice discontinued the proceedings against the Second and Third Defendants, with those Defendants consenting to discontinuance on the basis that there was no order as to costs.
6 I have granted the Plaintiff leave to file that Notice of Discontinuance in the Registry today. In accordance with ordinary principles, the Notice of Discontinuance brings to an end the litigious controversy as between the active parties to these proceedings - the Plaintiff on the one hand and the Second and Third Defendants on the other.
7 The question remained as to what the Plaintiff intended to do with respect to the First Defendant, which had filed a submitting appearance. Clarification was sought in that respect by my staff by email late last week. The Plaintiff has been unrepresented by a legal practitioner. A Notice of Appearance has not been filed, nor has a legal practitioner instructed by the Plaintiff sought to appear on its behalf. However, I do note that Ms Beattie, who has appeared this morning and who is a director of the Plaintiff, has informed the Court that she holds legal qualifications.
8 Last Saturday, 27 March 2010, an email was received by my staff from Ms Beattie, including what was described as a Second Amended Summons and a brief outline of submissions.
9 This morning, Ms Beattie has appeared as a director of the Plaintiff. I note that Mr Fagan, solicitor for the Second and Third Defendants, is present in Court, although having regard to the Notice of Discontinuance, the proceedings have been settled with respect to his clients. Nevertheless, no doubt having regard to the steps which the Plaintiff seeks to take further in the litigation, he has some practical interest at least in observing what happens.
10 I note as well that Ms Hartman from the Crown Solicitor's Office is present in Court in the interests of the CTTT, although that body, as I have said, has filed a submitting appearance.
11 What has been put this morning by Ms Beattie is that, although the proceedings have settled as between the Plaintiff and the Second and Third Defendants, there is a public interest in this Court further considering whether declaratory or prerogative relief ought be given, having regard to a number of complaints that the Plaintiff has about the procedures adopted by the CTTT, and steps taken by it in these proceedings.
12 The outline of submissions provided by Ms Beattie last Saturday noted that the proceedings have settled as between the Plaintiff and the Second and Third Defendants, but nevertheless asserted that the Court ought proceed to deal with the accompanying document described as the Second Amended Summons. The outline of submissions furnished by Ms Beattie asserts, in various respects, that steps taken by the CTTT involved invalidity, acting outside jurisdiction and denial of procedural fairness. The document entitled "Second Amended Summons" noted that the relief or remedy sought by the Plaintiff was a declaratory judgment or order. The document then proceeded to recite, in various ways, what were said to be alleged areas of invalidity, ultra vires action or denial of procedural fairness.
13 I treat what is happening today as being, in effect, an application for leave to further amend the Amended Summons. What the Plaintiff seeks to do, having settled the controversy between the active parties, is to seek a type of advisory opinion with no contradictor to the proceedings.
14 The powers of this Court which are sought to be brought into play are ss.69 and 75 Supreme Court Act 1970. Section 69 concerns prerogative relief and s.75 relates to declaratory relief.
15 There are well-known principles to be applied when a Plaintiff seeks to take the approach now sought to be taken in these proceedings. In Oil Basins Limited v The Commonwealth of Australia (1993) 178 CLR 643 at 648-649, Dawson J observed that the requirements which must be satisfied before a Court will exercise its discretion to make a declaration include requirements that the question must be real and not theoretical, that the person raising it must have a real interest to raise it, and that the person must be able to secure a proper contradictor - that is to say someone presently existing who has a true interest to oppose the declaration sought.
16 Dawson J referred to well-known cases dealing with these concepts, including Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438 and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582. In Ainsworth (at 581-582) the majority of the High Court observed that declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions.
17 It has been said in other cases that relief should not be granted if what is sought is an advisory opinion upon a hypothetical question. In Australian Institute of Private Detectives Ltd v Privacy Commissioner (2004) 139 FCR 394 at 401-403, Sackville J of the Federal Court of Australia applied this principle in determining that a Court should not enter into an area which involved an advisory opinion.
18 In my view, what the Plaintiff seeks to do now, having resolved the practical controversy with the Second and Third Defendants, is to invite this Court to express views (legal and otherwise) by way of declaratory relief with respect to procedures adopted by the CTTT, not for the purpose of resolving a current dispute. The dispute between the parties who were the active parties before the CTTT has been resolved. Rather, what the Plaintiff seeks the Court to do is, in my view, to express a type of advisory opinion for the future in what is said to be a way that might assist future litigants before the CTTT.
19 I do not consider that this would be a proper use of the Court's powers under ss.69 and 75 Supreme Court Act 1970. If the Plaintiff has complaints about the approach taken by the CTTT, there are (no doubt) other bodies and persons in the State of New South Wales to whom those complaints may be directed, with the view to resolving particular complaints against individuals or proposing legislative reform or for some other purpose.
20 It does not seem to me however, in the context of the present dispute, that this Court has a proper role to exercise in the taking up of the invitation which the Plaintiff now suggests as the way forward in this litigation.
21 The Second and Third Defendants are no longer parties to the proceedings and the CTTT, having filed a submitting appearance, cannot take any step in the proceedings without leave of the Court: r.6.11 Uniform Civil Procedure Rules 2005. All of this is being raised in the context of an amendment proposed on the eve of the final hearing of the Plaintiff’s Amended Summons. The way in which this issue has come about emphasises the need in this case to decline the Plaintiff’s invitation to embark upon a type of advisory opinion function.
22 I have already granted the Plaintiff leave to file in the Registry today the Notice of Discontinuance, signed on behalf of the Plaintiff and the Second and Third Defendants last Friday. In my view, the position has been reached in the litigation where there is no utility in the Court proceeding further with any hearing for the reasons which I have given. The appropriate course is to make a formal order dismissing the Amended Summons against the First Defendant and, having regard to the nature of the submitting appearance filed by that Defendant, to make no order as to costs.
23 The orders that I make are that the Amended Summons filed on 4 February 2010 is dismissed as against the First Defendant. I make no order as to costs with respect to the First Defendant. I note the terms of the Notice of Discontinuance as between the Plaintiff and the Second and Third Defendants.
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