Perla v Danieli
[2012] NSWDC 31
•04 April 2012
District Court
New South Wales
Medium Neutral Citation: Perla v Danieli [2012] NSWDC 31 Hearing dates: 30 March & 2 April 2012 Decision date: 04 April 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.The plaintiff's appeal and the summons are dismissed;
2.See paragraph [65] for further orders.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: ADMINISTRATIVE LAW - appeal from Consumer Trader and Tenancy Tribunal - whether interlocutory order made by CTTT Member based on misapprehension of extent of the jurisdiction of the CTTT to determine the proceedings before it is a decision with respect to a matter of law within the meaning of s 67(1) of the Consumer Trader and Tenancy Tribunal Act 2001; COSTS - whether appropriate case for plaintiff's costs to be paid by Suitors' Fund Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001
Fair Trading Act 1987
Property, Stock and Business Agents Act 2002
Suitors' Fund Act 1951Cases Cited: House v R [1936] HCA 40; (1936) 55 CLR 499 Category: Principal judgment Parties: Elena Perla (Plaintiff/Appellant)
Ron Danieli (Defendant/Respondent)Representation: Mr CC Dwyer (Plaintiff/Appellant)
Mr GB Evans (Defendant/Respondent)
-
Charles Monti (Defendant/Respondent)
File Number(s): 2011/370230 Decision under appeal
- Citation:
- Consumer Trader and Tenancy Tribunal
Decisions dated 1 February 2011 and 27 September 2011- Date of Decision:
- 2011-09-27 00:00:00
- Before:
- Consumer Trader and Tenancy Tribunal
Tribunal Member G Meadows
Tribunal Member J Smith- File Number(s):
- COM 10/46479
Judgment
Table of Contents
Summons
[1]
Facts
[2] - [6]
Procedural chronology and facts giving rise to appeal
[7] - [33]
Claim on appeal
[34] - [35]
Grounds of appeal
[36] - [38]
Evidence
[39]
Submissions of the parties
[40] - [43]
Consideration
[44] - [61]
Disposition
[62]
Costs
[63] - [64]
Orders
[65]
Summons
The plaintiff/appellant, Mrs Elena Perla, a property owner, brings these proceedings by way of summons pursuant to s 67(1) of the Consumer Trader and Tenancy Tribunal Act 2001 ["CTTT Act"] claiming dissatisfaction with orders respectively made by the Consumer Trader and Tenancy Tribunal ["CTTT"] on 1 February 2011 and 27 September 2011 by Tribunal Members Mr G Meadows and Mr J Smith in CTTT proceedings numbered COM 10/46479 between the plaintiff and a real estate agent, Mr Ron Danieli, the defendant/respondent.
Facts
The plaintiff claimed the defendant had not acted honestly in the execution of his duties as a real estate agent engaged by her in connection with the sale of a property she had owned in Potts Point. The plaintiff's claim is that the defendant sold that property at an undervalue to a person who was his friend and business associate, without beforehand obtaining and informing the plaintiff of a proper market appraisal of the property.
The plaintiff also claimed that the defendant had rented a storeroom which was part of another property belonging to her, but without her authority, as a result of which she suffered financial loss.
The plaintiff sought damages against the defendant as a consequence of those matters.
The allegations which base the plaintiff's claim against the defendant involve very serious allegations of misrepresentation, fraud and breach of fiduciary duty.
The merits or otherwise of those allegations are yet to be determined in the Local Court.
Procedural chronology and facts giving rise to the appeal
It is necessary to trace the procedural history of the issues between the parties.
On 7 October 2010, the plaintiff commenced proceedings against the defendant in the CTTT for damages for the alleged undersale, reimbursement of commission and unpaid rent in connection with another of her properties in Elizabeth Bay. The initial amount claimed by the plaintiff was in the amount of $54,000. That claim was later expanded into a claim for $104,000 plus interest.
The plaintiff's application was filed in the Commercial Division of the CTTT. By the terms of the plaintiff's answers to Question 11 in the form of the originating process, the plaintiff clearly indicated that her claim was reliant upon sections 48, 49, 52 and 72 of the Property, Stock and Business Agents Act 2002.
The provisions of that Act which were cited by the plaintiff in her application, in fact related to matters of a disciplinary and penalty nature, which did not relevantly confer a cause or right of action.
It is plain from that originating process that the plaintiff was not seeking to invoke the unlimited jurisdiction of the CTTT pursuant to s 36 of the Property, Stock and Business Agents Act 2002. This fact was also plain from the plaintiff's subsequent statements recorded in the transcript of proceedings before Tribunal Member Smith on 27 September 2011.
It is plain from the plaintiff's correspondence with the Registrar of the CTTT at an early stage, that the plaintiff was uncertain as to jurisdictional issues concerning her claim and sought guidance from the CTTT Registry. Properly, the Registrar of the CTTT was unable to provide guidance to the degree sought by the plaintiff, as that would have constituted legal advice: Letter, Registrar of CTTT to plaintiff, dated 21 January 2011.
As a result, the proceedings took their course, and on 1 February 2011 a directions hearing was convened before Tribunal Member Meadows. The pro forma CTTT information sheet concerning directions hearings in the CTTT relevantly stated:
"This matter has been listed for a 'directions hearing' Directions hearings are used to prepare for the formal hearing They are used in complex matters where there may be a need to establish jurisdiction, identify issues in dispute, set a time frame for the hearing, or make directions for the exchange of evidence."
The plaintiff, a former solicitor, represented herself before the CTTT on 1 February 2011.
At the directions hearing before Tribunal Member Meadows on that date, the plaintiff raised her doubts about whether the CTTT was in fact invested with the appropriate jurisdiction to determine the amount of her claim: T4.10, 1 February 2011. There is little doubt that this was a prudent course for her to have taken given the pro forma indication of the agenda for directions hearings.
At that time, by his statements, Tribunal Member Meadows allayed the plaintiff's concerns over jurisdiction. This was in the form of the following statement appearing at T4.25 - T5.20, 1 February 2011:
"MEMBER: Part of your claim is for reimbursement of commission. That gives you jurisdiction under the Property, Stock and Business Agents Act, section 36, which covers - you've paid money where you are required to pay money to an agent for commission being for the services rendered by that agent. That gives you the jurisdiction.
The jurisdiction is treated as a consumer claim, which is what section 36 say, but there is no jurisdictional monetary limit for a claim brought under the Property, Stock and Business Agents Act. Under the Consumer Claims Act, there's a limit of $30,000. We can't award more than that. But any claim brought pursuant to the Property, Stock and Business Agents Act is specifically not included in that jurisdictional limit. So there is no monetary limit and that gives you - or that gives us the jurisdiction to hear your claim.
Having got that jurisdiction, you may also make claim pursuant to the FairTrading Act and you may also make a general claim in negligence. The jurisdiction for that is given by various precedent cases, so you don't have to look into a particular Act which says, "you may bring a claim in negligence". That is given by decisions of the Supreme Court that are now quite old and are absolutely standard, and have never been overturned and have never been queried.
Having got jurisdiction, we can consider any aspect of the claim under the Fair Trading Act or the Fair Trading Law as it's applying now and a general claim of jurisdiction. And because it's a claim brought under the Property, Stock and Business Agents Act, the Tribunal decides it is appropriate to be in the commercial division.
The divisions are really for the - their pursuant to the legislation, but they're for the convenience for the Tribunal. I can hear your case and then at the second last second, decide it's really a consumer claims case, and I call it a consumer claims case and nothing changes. I have the - any member has the right to change the jurisdiction - the division, rather, if it seems appropriate to do so and it happens all the time. But there is no doubt that this is a claim brought pursuant to the Property, Stock and Business Agents Act correctly in relation to commission and the damages unpaid rent, any other part of the claim being part of the same transaction claimed to be part of the same transaction, can be dealt with by this Tribunal because we have the necessary jurisdiction pursuant to the Property, Stock and Business Agents Act.
So there is no issue with jurisdiction. There is no issue that - well, I suppose I shouldn't say that. Mr Monti may have something to say before I make a decision, but in my opinion, without having heard from Mr Monti, there is no jurisdictional issue. There is no divisional issue. There is no reason why the Tribunal cannot go ahead to hear the claim. Is there anything further that you wish to say? Ms Perla, anything further from you about that issue?"
As a result, Tribunal Member Meadows incorporated the following statement on to the CTTT file in a document entitled Notice of Order:
"The Tribunal confirms it has jurisdiction to hear and determine this claim in the Commercial Division of the Tribunal".
In this appeal, it is now common ground that Tribunal Member Meadows' statement, by which he confirmed the existence of jurisdiction as cited above, was in fact erroneous.
That conclusion arises because the plaintiff's claim was not proceeding under s 36 of the Property, Stock and Business Agents Act 2002. This meant that she had no entitlement to invoke the unlimited jurisdiction of the CTTT for alleged misleading conduct on the part of the defendant, and her claim must have therefore necessarily been limited to an assessment of $30,000, which was the applicable jurisdictional limit for consumer claims in the General Division of the CTTT. The Commercial Division jurisdiction of the CTTT was therefore unavailable to the plaintiff in those circumstances, contrary to the intimation given to the plaintiff by Tribunal Member Meadows on 1 February 2011.
That conclusion was plain from the plaintiff's statements at the directions hearing where she outlined the statutory basis upon which her claim was to proceed, namely sections 42, 43, 44 and 45 of the Fair Trading Act 1987 and sections 48, 52 and 72 of the Property, Stock and Business Agents Act: T5.38 - T5.43, 1 February 2011.
At T7.30 - T7.42 on 1 February 2011, Tribunal Member Meadows further clarified for the plaintiff the relatively informal nature of procedures in the CTTT, as follows:
"MEMBER: Okay. Can I explain something further as well? This Tribunal is not what is called a Court of strict pleading. That means that your pleadings can be utterly mucked up, but as long as we can make sense of them, and as long as we have some jurisdiction, we can fix those up in the hearing. We just need to know what you're after. You do not need to go through researching all these other Acts. You can - you have the right to bring this claim in the tribunal pursuant to the Property, Stock and Business Agents Act; you have the right to bring (sic) claim under the Fair Trading Act; and you have a right to bring a general damages claim in negligence.
There's no doubt about that and you're in the right division in the right Tribunal. So let's go over that. Let's forget everything else now and worry about the facts of the case."
The proceedings were ultimately listed for hearing in the CTTT on 27 September 2011 before Tribunal Member Smith. On that occasion the plaintiff was self represented, and Mr Evans represented the defendant.
The matter did not proceed to a hearing on 27 September 2011 because of a jurisdictional question. Tribunal Member Smith correctly indicated to the parties that the jurisdiction of the CTTT to hear the dispute between the parties was limited to an amount of $30,000. At that time he pointed out the differences in jurisdiction between the Commercial and the General Divisions of the CTTT.
Given the interchanges that I have cited from the directions hearing before Tribunal Member Meadows on 1 February 2011, it was not surprising that when a hearing of the plaintiff's claim was about to commence in the CTTT on 27 September 2011 before Tribunal Member Smith, the plaintiff was somewhat taken aback by Tribunal Member Smith's intimation, albeit correct, that the amount of the plaintiff's claim was limited to a jurisdictional ceiling of $30,000: T2.44 - T3.45, 27 September 2011.
After the plaintiff was informed of Tribunal Member Smith's view as to the jurisdictional issue, the plaintiff drew attention to the earlier order or statement by which Tribunal Member Meadows had erroneously confirmed the nature of the jurisdiction of the CTTT for the plaintiff's proceedings at the direction hearing on 1 February 2011.
The plaintiff submitted that at this point, Tribunal Member Smith ought to have ascertained the nature and the content of the order that was noted in the CTTT file by Tribunal Member Meadows on 1 February 2011, which was in the terms that I have cited at paragraph [17] of these reasons. That did not occur and the plaintiff argued that as a result, she had been denied procedural fairness.
The transcript of the proceedings before Tribunal Member Smith on 27 September 2011 clearly demonstrates that the plaintiff was taken by surprise by the events that had transpired in the Tribunal on that occasion.
The plaintiff was then offered the alternatives of either abandoning the amount of her claim in excess of the jurisdictional limit of $30,000, or adjourning the proceedings to have them transferred to the Local Court. Before committing herself to a course of action the plaintiff was granted a short adjournment to consider her position. She claims this involved procedural unfairness to her because she was only given some 15 minutes to make her decision.
The opportunity given to the plaintiff for a short adjournment to enable her to consider her position, is evident from the relevant extract at T6.43 - T7.1 on 27 September 2011, and appears as follows:
"MEMBER: Well, I said to Mr Evans I will take argument on that in due course. You need to think carefully about what Mr Evans has said. I'm not making any decision on that at all. Al (sic) I want from you at the present time, is an indication of whether you either accept my preliminary view on the issue of jurisdiction, and if you do, whether or not you submit to the Tribunal's maximum jurisdiction a limit of $30,000, or if you do not accept my preliminary view, then I will take submissions from you and make a ruling on that issue. I'll grant you 15 minutes adjournment now to prepare on that. So we'll come back in a few minutes' time."
At that point, following the short adjournment, the plaintiff took the option of adjourning the proceedings and transferring them to the Local Court in order to protect her entitlement to claim the amount she seeks from the defendant by way of damages.
By those means, the plaintiff had acquiesced to the view identified by Tribunal Member Smith, and she then applied for an adjournment in order to transfer the CTTT proceedings to the Local Court for hearing.
Accordingly, on 27 September 2011, Tribunal Member Smith made the following orders:
"1. On the request of the applicant and with consent of the respondent the application is transferred, pursuant to the provisions of the Consumer Trader and Tenancy Tribunal Act, s.23, to the Local Court to be continued in that Court as though it had been instituted there.
2. The applicant shall pay the respondent's costs thrown away as a result of the transfer to the Local Court. Costs to be agreed or assessed on the usual or party/party basis."
The wasted costs order in the CTTT was in respect of a scheduled 2 day hearing that did not proceed. Those costs have not yet been assessed, but I have been informed they are thought to be in the vicinity of up to $15,000. The reasonableness of those claimed costs is a matter that remains to be determined by a Costs Assessor in due course. The transferred proceedings have not yet been heard in the Local Court.
Claim on appeal
The plaintiff claims that the wasted costs order that was made against her would not have been made had Tribunal Member Smith consulted the Notice of Order made my Tribunal Member Meadows in the proceedings on 1 February 2011. The plaintiff complains that she is now faced with two conflicting decisions of the CTTT, and that both of them cannot stand, as one of those decisions is plainly incorrect.
Accordingly, in this appeal, the plaintiff seeks the following orders:
"1. Appeal allowed.
2. The decision made by CTTT Member J Smith on 27th September 2011, that the applicant shall pay the respondent's costs thrown away as a result of the transfer to the Local Court be set aside. In lieu thereof an order that each party pay its own costs or in the alternative the applicant to pay the respondent's costs of the hearing but have a certificate under the Suitors' Fund Act 1951 if qualified in terms of s 6C or 7 of the Act.
3. Costs.
4. Such further or other order as the court deems fit."
Grounds of appeal
In support of the orders sought, the plaintiff initially relied upon the following stated grounds, which I set out in full on account of the submissions made on behalf of the plaintiff:
"1. The decision of Member Smith was an error of law by denying the Applicant procedural fairness, in that:
a) At the commencement of the hearing on 27th September 2011 Member Smithsaid that:
i) he held the view that the maximum order that he could make would be $30,000.000 (sic)
ii) if the Applicant proceeded in the Tribunal and an order was made for any sum at all, any amount over and above that awarded could not be pursed (sic) in another court.
iii) alternatively the Applicant could transfer the matter to a jurisdiction that could deal with the matter in toto.
b) After being informed by the Applicant that on a previous occasion another Member of the Tribunal had decided in the matters that the Tribunal was not limited to a monetary jurisdiction of $30,000.00, Member Smith:
i) failed to inform himself of the decision of Member Meadows made on 1st February 2011 which was that;
"..any claim brought (in the Tribunal) pursuant to the Property Stock & Business Agents Act is specifically not included in that jurisdictional limit (contained in the Consumer Claims Act). So there is no monetary limit and that gives you., or that gives us the jurisdiction to hear your claim.",
ii) proceeded to reaffirm his view that the maximum order that he could make would be $30,000.00,
iii) did not vacate, vary or even refer to the previous inconsistent decision of Member Meadows that the Tribunal was not limited to a monetary limit of $30,000.00 in the matter and
iv) thereby created the circumstance of there being two inconsistent decisions of the Tribunal on the same jurisdictional question.
c) Following Member Smith reaffirming his earlier view, the Applicant:
i) accepted the correctness of Member Smith's view as to jurisdiction and
ii) agreed with him that she was happy for him to transfer the matter to the Local Court
d) Despite the above facts, in particular, the fact that the Applicant proceeded with her Application to a hearing on 27th September 2011, as a direct result of the decision of Member Meadows on 1st February 2011, which also necessitated the attendance of the Respondent on that day, Member Smith ordered the Applicant to pay the Respondent's costs thrown away caused by the transfer of the proceedings to the Local Court."
During argument it was pointed out to counsel for the plaintiff, who was not involved in the drafting of the summons, that the grounds relied upon by the plaintiff made no relevant complaint about the orders made by Tribunal Member Meadows. On behalf of the plaintiff leave was then sought and granted for the plaintiff to file an additional amendment to the already amended summons, so as to include the following further ground of appeal:
"The decision of Member Meadows made at a Directions Hearing on 1st February 2011 that the Tribunal had the jurisdiction to hear and determine the Applicant's claim, under the Property Stock and Business Agents Act, the Fair Trading Act and a claim for general damages in negligence, in the Commercial Division of the Tribunal and confirmed in the Tribunal's undated Notice of Order, was an error by the Tribunal in deciding a question with respect to a matter of law."
The defendant was not disadvantaged or surprised by that amendment, and no objection was taken to that course.
Evidence
The evidence tendered in the appeal comprised the affidavit of the plaintiff sworn on 8 February 2012, which annexed the transcripts of proceedings in the CTTT on both 1 February 2011 and 27 September 2011, and relevant correspondence and applications made to the CTTT. The CTTT file was also tendered.
Submissions of the parties
On the appeal, counsel for the plaintiff submitted that both Tribunal Members Meadows and Smith had made relevant errors with respect to matters of law.
It was argued that on 1 February 2011, Tribunal Member Meadows erred in wrongly confirming the extent of the jurisdiction of the CTTT to hear the dispute between the parties having regard to the amount claimed by the plaintiff which was in excess of $30,000.
The plaintiff further argued that on 27 September 2011, Tribunal Member Smith erred in not appropriately considering the earlier orders made by Tribunal Member Meadows confirming (albeit erroneously) that the CTTT had jurisdiction, before making a wasted costs order against the plaintiff.
On behalf of the defendant, shortly stated, it was argued that the appeal is concerned with the plaintiff's dissatisfaction with the terms of a discretionary order for costs, for which there is no appeal, and as a consequence, no relevant question with respect to a matter of law arises in the appeal.
Consideration
The starting point for the analysis is to recognise that the plaintiff had commenced her proceedings in the wrong jurisdiction having regard to the amount of damages she sought to claim against the defendant. Instead of proceeding in the Local Court to claim such damages from the defendant, she commenced a consumer claim in the CTTT, which necessarily carried with it a limited jurisdiction of $30,000 for this particular case.
That decision was a procedural mistake. This was confirmed by the plaintiff's decision to apply for an adjournment of the hearing and to seek a transfer of the CTTT proceedings to the Local Court. It was further confirmed when Tribunal Member Smith made the orders for the adjournment of the hearing and for the transfer of the proceedings to the Local Court.
In my view, irrespective of whether or not the defendant made no relevant objection to jurisdiction in the CTTT on 1 February 2011, and irrespective of the fact that Tribunal Member Meadows provided the plaintiff with an incorrect confirmation that the General Division of the CTTT had jurisdiction to determine the proceedings in the amount sought by the plaintiff, it was nevertheless the plaintiff's interest and obligation to ensure that her proceedings were commenced in the correct jurisdiction.
In my view, once that position is recognised, and once the plaintiff elected to seek an adjournment of the hearing, it becomes plain that the order made by Tribunal Member Smith, that the costs wasted by reason of the adjournment should be paid by the plaintiff, was inevitable.
There is little room for doubt that if the representatives of the defendant had raised the jurisdictional point ultimately identified on 27 September 2011 at an earlier time in order to correct the erroneous intimation of jurisdiction indicated to the plaintiff by Tribunal Member Meadows on 1 February 2011, it is likely that the costs order that was ultimately made against the plaintiff, would have involved a much lesser amount. This would have been so because it is unlikely that a hearing date would have been allocated for the proceedings unless the plaintiff abandoned the amount of her claim in excess of $100,000. Therefore, the transfer to the Local Court would have occurred at a much earlier point in time. However, this fact should not influence the overall result of the appeal.
The fact remains that the making of the order that the plaintiff pay the wasted costs was a discretionary matter: House v R [1936] HCA 40; (1936) 55 CLR 499. As such, this does not involve a decision with respect to a matter of law, unless it can be shown that the exercise of discretion in a relevant sense, was flawed.
In considering the merits of the plaintiff's appeal I should indicate that Mr Dwyer, who appeared for the plaintiff in this court, but not in the Tribunal, has submitted all that could properly and reasonably be put by way of argument in support of the plaintiff's appeal.
The plaintiff has been caught between the conflicting views of two different Members of the CTTT. One of those views was plainly incorrect.
The difficulty for the plaintiff in these circumstances is that her need for an adjournment on 27 September 2011 did not arise because of the erroneous order or indicative statement made by Tribunal Member Meadows, but rather, because the plaintiff had commenced proceedings in an incorrect forum that did not afford her a remedy to the extent of the amount she was seeking. It is plain that if the proceedings had been heard either by Tribunal Member Meadows or any other Tribunal Member along the jurisdictional lines intimated by Tribunal Member Meadows, then any award in favour of the plaintiff in an amount in excess of $30,000 would have been ultra vires or beyond the power conferred on the CTTT by the CTTT Act, and accordingly, that portion of any such award would have been unenforceable as against the defendant.
Accordingly, for the plaintiff to be afforded the opportunity to proceed to seek to recover the full amount of her claim, an adjournment of the hearing fixture was inevitable. That circumstance had nothing to do with the earlier erroneous statement made by Tribunal Member Meadows.
This appeal is governed by the terms of s 67(1) of the CTTT Act and it is necessary for the plaintiff to demonstrate that the CTTT decided a question with respect to a matter of law so as to cause a party, in this case, the plaintiff, to be dissatisfied.
In the circumstances under review, the only relevant decisions that were made by the Tribunal were:
(1) Tribunal Member Meadows' order on 1 February 2011 purporting to confer a jurisdiction on the claim that was not available to the plaintiff;
(2) Tribunal Member Smith's order on 27 September 2011 for adjournment of the hearing and transfer of the proceedings to the Local Court;
(3) Tribunal Member Smith's order on 27 September 2011 for the plaintiff to pay the defendant's costs wasted by reasons of the adjournment.
As to the first order, made by Tribunal Member Meadows on 1 February 2011, although the order relates to the jurisdiction of the CTTT to hear the plaintiff's claim, and therefore has some semblance of a decision, in reality, it is no more than confirmation of an erroneous view of the nature of the Tribunal's jurisdiction. As the transcript for that occasion that I have cited above shows, on 1 February 2011, no relevant decisions were made by the CTTT within the meaning s 67(1) of the CTTT Act.
As to the second order, made by Tribunal Member Smith on 27 September 2011, as that order was made with the consent of the parties, no decision on a matter with respect to a matter of law arises on appeal: s 67(1) of the CTTT Act.
As to the third order, made by Tribunal Member Smith on 27 September 2011, it was simply an order for costs that was consequential upon the second order, and it involved the exercise of a discretion that was not otherwise flawed: House v R [1936] HCA 40; (1936) 55 CLR 499. As such, no relevant decision with respect to a matter of law arises within the meaning of s 67(1) of the CTTT Act.
As a consequence of the above consideration, the plaintiff has not demonstrated a relevant decision with respect to a matter of law so as to enliven the jurisdiction of this court on an appeal from the CTTT: s 67(1) of the CTTT Act.
It remains to consider the plaintiff's complaint concerning claimed procedural unfairness.
In my view, the plaintiff has not demonstrated any denial of procedural fairness. It was not open to Tribunal Member Smith to overturn the order and notation, made by Tribunal Member Meadows, if he had consulted that order as was suggested by the plaintiff. Once the problem of jurisdiction was identified by Tribunal Member Smith, on 27 September 2011 there was adequate discussion of the problem and the plaintiff was provided with the appropriate options and given a reasonable opportunity during a short adjournment to consider which of her options she wanted to pursue. In those circumstances I do not consider that a denial of procedural fairness has been identified in any relevant respect.
Disposition
As a consequence of the foregoing reasons, the plaintiff's appeal must necessarily be dismissed.
Costs
The plaintiff has found herself in the unfortunate position whereby she was given illusory comfort from an erroneous indicative statement made at a directions hearing by a CTTT Member to the effect that jurisdiction existed where it did not. This has resulted in her incurring an increased measure of costs because of a delayed recognition of the fact that she had filed her claim in the wrong jurisdiction. The necessary consequence of the dismissal of this appeal is that the plaintiff should pay the defendant's costs of the appeal on the ordinary basis, unless otherwise ordered.
As a result, the extent of the plaintiff's liability for costs has been increased by reliance on that wrong indication. She therefore makes a claim for such costs to be met by the Suitors' Fund. Whilst I consider that it would seem to be just and fair for such a claim to be met by that Fund, that is a matter entirely for the Fund to consider, and not this court to determine.
Orders
I make the following orders:
(a) The plaintiff's appeal and the summons are dismissed;
(b) The plaintiff is to pay the defendant's costs of the summons on the ordinary basis unless otherwise ordered;
(c) The defendant is at liberty to proceed to assess the costs of these dismissed proceedings, but the enforcement of those costs is stayed until a judgment has been entered in the proceedings between the parties that have been transferred from the CTTT to the Local Court;
(d) The plaintiff may apply for such costs to be paid by the Suitors' Fund pursuant to s 6 of the Suitors' Fund Act 1951, if her entitlement to such payment is established to the satisfaction of the Fund;
(e) Liberty for either party to apply on 7 days notice if further orders are required.
Decision last updated: 04 April 2012
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