Rosa v The Bolivarian Republic of Venezuela; Rosa v The Bolivarian Republic of Venezuela

[2019] ACAT 33

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ROSA & ANOR v THE BOLIVARIAN REPUBLIC OF VENEZUELA; ROSA v THE BOLIVARIAN REPUBLIC OF VENEZUELA  (Residential Tenancies) [2019] ACAT 33

RT 10/2018

RT 11/2018

Catchwords:                RESIDENTIAL TENANCIES – frivolous or vexatious proceedings – strikeout – diplomatic immunity – counter-claim – enforcement – futility – jurisdiction – summary dismissal – grounds for dismissal

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 7, 32, 36, 54, 71

Foreign States Immunities Act 1985 (Cth) ss 9, 11, 14, 30, 31, 32, 33, pt 4
Residential Tenancies Act 1997 s 76

Subordinate
Legislation cited:        Court Procedures Rules 2006 pt 2.18

Cases cited:Cheluvappa v University of Canberra [2018] ACAT 108

Commissioner for Social Housing v Williams [2017] ACAT 53
Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75

P v Registrar of Firearms [2018] ACAT 74
Sidebottom v Cureton (1937) 54 WN (NSW) 88

List of

Texts/Papers cited:     Vienna Convention on Diplomatic Relations, opened for signature 18 April 1961, 500 UNTS 95 (entered into force 24 April 1964) art 32

Tribunal:                   Senior Member H Robinson

Date of Orders:  19 March 2019

Date of Reasons for Decision:         19 March 2019

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 10/2018

RT 11/2018

BETWEEN:

JOSÉ ROSA

First Applicant — XD 10/2018

ISILDA ROSA

Second Applicant — XD 10/2018

ADRIAN ROSA

Applicant — XD 11/2018

AND:

THE BOLIVARIAN REPUBLIC OF VENEZUELA

Respondent

TRIBUNAL:   Senior Member H Robinson

DATE:19 March 2019

ORDER

The Tribunal orders that:

1.The matter is to proceed to hearing.

2.The matter is set down for telephone directions on Wednesday 27 March 2019 at 9:00am.

………………………………..

Senior Member H Robinson

REASONS FOR DECISION

1.By way of the applications in matters RT 10/2018 and RT 11/2018, the applicant lessors seek to recover rent allegedly owed by their former tenant, the Bolivarian Republic of Venezuela, for two premises it rented for diplomatic purposes in Australia. The respondent tenant has submitted that the Tribunal should either decline to hear these proceedings, or should summarily dismiss them. This decision considers only these preliminary issues (the preliminary issues). The substantive claims have yet to be heard.

The hearing process

2.The parties attended a directions hearing on 14 December 2018. On that occasion, the applicants were represented by Mr John Bird of Clayton Utz, and the respondent by barrister Mr James Macken. The parties agreed that the preliminary issues should be determined ‘on the papers’, subject to the right of either party to request an oral hearing after the filing of submissions. Both parties filed written submissions in accordance with the directions made on that date. Neither party requested an oral hearing.

Background

3.Isilda and José Rosa jointly own a property in O’Malley in the Australian Capital Territory. Adrian Rosa owns a separate property in the same suburb. Both properties were rented to the respondent for many years pursuant to residential tenancy agreements made under the Residential Tenancies Act 1997 (RT Act). The properties were used for consular or diplomatic purposes.

4.The applicants allege that, from about 2017, the respondent started to fall behind in the rent on both properties. The applicants commenced a process to terminate the tenancies, but ultimately did not commence action in this tribunal. The exact circumstances under which the respondent eventually vacated the properties appears to be contentious. The applicants say that in excess of $25,000 in rent is outstanding in relation to each of the properties. The respondents say in reply that any debt is offset by its own claim for compensation arising from the termination process.

The respondent’s position

5.The respondent has not sought to respond to the substantive claim at this stage. Rather, it has sought to have the proceedings dismissed.[1]

[1] An alternative interpretation of the respondent’s position is that it is requesting that the Tribunal decline to exercise its jurisdiction, but for reasons set out further in these reasons for decision, that option is not open to the Tribunal

6.As I understand it, the respondent is seeking to have the proceedings dismissed on one of two grounds:

(a)     first, that these proceedings are either futile or an abuse of process (the futility ground); and

(b)     second, that, in any case, the respondent has potential counter-claims for breach of the residential tenancy agreements that would set off any rent owed, but the surrounding circumstances make it difficult for the respondent to put its case before the tribunal, and accordingly make it unfair for these proceedings to continue (the unfairness ground).

7.The futility ground arises from the respondent’s status as an independent sovereign state. By long-standing tradition, Australian law confers legal privileges and immunities on foreign states pursuing the governmental function of diplomacy. At common law, there was an absolute immunity of foreign states from the jurisdiction, process and enforcement of actions in the receiving country’s courts.[2] These privileges and immunities are now found, in a more constrained form, in Commonwealth legislation, including the Foreign States Immunities Act 1985 (Cth) (FSI Act).

[2] See Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43 (Firebird) [167]-[173] for a brief history of diplomatic immunity

8.Briefly stated, the FSI Act preserves the immunity of foreign states from both the jurisdiction of Australian courts and tribunals,[3] and the enforcement (otherwise called ‘execution’) of Australian court or tribunal orders against them.[4] However, both immunities are subject to specific exceptions. The FSI Act also draws a distinction between jurisdiction and enforcement, with differing exceptions to both.

[3] FSI Act section 9

[4] FSI Act section 30

9.Although this distinction between jurisdiction and enforcement is not clearly articulated in the respondent’s submissions, which deal mainly with enforcement, it is useful to set out the details here so as to better understand what the respondent is arguing in this case.

10.Under the FSI Act, a foreign state is specifically not immune to the jurisdiction of the relevant court or tribunal in a proceeding that concerns an obligation that arises out of its interest in, or its possession or use of, immovable property.[5] These proceedings appear to fall within this exception, as they relate to the recovery of rent allegedly owed as a consequence of the respondent’s use of the land in O’Malley.[6] The tribunal is an appropriate forum in which to bring such proceedings in the Australian Capital Territory.[7] Accordingly, the respondent does not appear to be immune from the tribunal’s jurisdiction to hear these proceedings, and it does not contend that it is.

[5] FSI Act section 14

[6] The applicants also note that proceedings involving a commercial transaction such as a lease or agreement are excluded — see FSI Act, section 11. These arrangements, however, are pursuant to residential tenancy agreements and it is not suggested by either party that they were commercial leases

[7] RT Act section 76

11.Rather, what the respondent says is that it is immune from enforcement of any orders made by the tribunal in the proceedings. This requires further explanation.

12.If satisfied that rent is owing, the tribunal has the power under the RT Act to make an order that the respondent pay that outstanding debt. However, if the order is not complied with, the applicants must then commence ‘enforcement proceedings’. The tribunal does not enforce its own orders. Rather, section 71 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that enforcement of a money order or non-money order made by the tribunal must be commenced under part 2.18 of the Court Procedures Rules 2006. In practical terms, this enforcement process is undertaken in the Magistrates Court of the Australian Capital Territory.

13.Enforcement proceedings are treated differently to other jurisdictional issues in the FSI Act. A foreign state’s immunity from the enforcement (or ‘execution’) of an order made by a foreign court or tribunal is found in section 30 of the FSI Act, which provides that:

30 Immunity from execution

Except as provided by this Part, the property of a foreign State is not subject to any process or order (whether interim or final) of the courts of Australia for the satisfaction or enforcement of a judgment, order or arbitration award or, in Admiralty proceedings, for the arrest, detention or sale of the property.

14.The immunity to enforcement proceedings is subject to a number of narrow exceptions, the most relevant of which include:

(a) waiver, as in section 31 of the FSI Act;

(b) where execution is sought against commercial property of the foreign state, as in section 32 of the FSI Act; and

(c) execution against immovable property, as in section 33 of the FSI Act.

15.The respondent addresses each of these exceptions in its submissions.

16.First, it says that it has not waived its immunity under section 31 of the FSI Act. This assertion does not appear to be disputed.

17.Second, while the respondent acknowledges that section 32 of the FSI Act sets out an exception of enforcement immunity where enforcement is sought against commercial property, it submits that this exception is only relevant where a respondent state has commercial property in the relevant jurisdiction. The respondent contends that it has no commercial property in Australia, and that property held for governmental purposes — in this case, diplomatic purposes — is not within the meaning of ‘commercial property’.[8]

[8] Relying on Firebird [114]-[116]

18.In support of this proposition, the respondent relies upon the witness statement of Mr Amaranta Leon Salazar, First Secretary and Head of the Consular Section of the Embassy of the Bolivarian Republic of Venezuela. Mr Salazar confirms that he has made relevant enquiries and is satisfied that the respondent holds no commercial property in Australia.

19.Third, the respondent says it has no immovable property in Australia within the meaning of that term in section 33 of the FSI Act. Mr Salazar’s statement also supports this contention.

20.On this basis, the respondent submits that any order made by the Tribunal simply cannot be enforced and “the [respondent’s] immunity from enforcement proceedings makes the application futile.”[9]

[9] Respondents submissions dated 30 January 2019 [30]

21.In relation to the other basis for the summary dismissal, the unfairness ground, the respondent contends that it would be ‘unfair’ to permit the proceedings to proceed for two reasons:

(a)first, the applicants’ own actions during the eviction process were inconsistent with the assertion of rights under the residential tenancy agreements; and

(b)second, because the respondent is, practically and effectively, unable to pursue a counter-claim that would be a full or partial offset or defence to this claim.

22.While not clearly articulated in these words, the respondent appears to be suggesting that the circumstances of this matter are such that the tribunal either should not, or cannot, resolve the entire dispute, and hearing only part of it would amount to a breach of natural justice, a miscarriage of justice, or perhaps an abuse of process.

23.Fundamental to the unfairness ground are the statement of Mr Salazar and the statement of Ms Usua Arene Pante Rubio.[10] Both statements set out a series of allegations about the circumstances surrounding the respondent’s apparent eviction from, or vacation of, the two premises. If substantiated, the allegations may well amount to a breach of the residential tenancy agreement, or the RT Act, by the applicants, and to the tort of trespass, but the Tribunal is not in a position to make any findings about the allegations. Nor have the applicants had a proper opportunity to either test the evidence, or put on their own evidence in response to the allegations.

[10] Statement of Usua Arene Pante Rubio dated 25 January 2019 (Attachment 5 to the respondent’s submissions dated 30 January 2019)

24.In the usual course, allegations of this kind would form the basis of a counter‑claim, and would be properly tested through a full hearing process. However, the respondent submits that the making of such a counter-claim is not appropriate in this case, both because doing so would be “inconsistent with the very privileges and immunities which are the foundation of the Respondent’s diplomatic representation in Australia”, [11]and because making such a claim may well void the respondent’s privileges and immunities pursuant to article 32 of the Vienna Convention on Diplomatic Relations.[12] The respondent also says that there are practical reasons why the counter-claim cannot be brought, including that the Head of Mission, who would be the primary witness, is being sent to another post overseas, and may not be available to participate in any hearing.

[11] Respondents submissions dated 30 January 2019 [27]

[12] Vienna Convention on Diplomatic Relations, opened for signature 18 April 1961, 500 UNTS 95 (entered into force 24 April 1964)

25.In conclusion, and drawing upon the above submissions, the respondent submits that:

If … the Tribunal hears the applications, the result would be to adjudicate on a claim in circumstances where an answering counterclaim either cannot, or, based on considerations of practicability and principle, should not be brought. That would be seriously unfair.

It is also unfair to allow the Applicants to call in aid rights under a contract and related statute which they have so flagrantly repudiated.

Moreover the [respondent’s] immunity from enforcement makes the application futile.[13]

The applicants’ position

[13] Respondents submissions dated 30 January 2019 [28]-[30]

26.The applicants’ position is effectively that the respondent is not immune from the jurisdiction of the tribunal, and the tribunal can and should exercise that jurisdiction, notwithstanding the difficulties that may arise in relation to the enforcement of any orders that are made.

27.The applicants rely upon the above-stated “key distinction between immunity from jurisdiction, and immunity from enforcement.”[14] They further submit that immunity from jurisdiction does not apply where, as here, a proceeding involves a commercial transaction such as a lease or agreement (referring the Tribunal to section 11 of the FSI Act). The applicants contend that nothing in the FSI Act precludes the tribunal from exercising its jurisdiction under the RTA Act.

[14] Applicants submissions on the issue of foreign state immunity dated 8 February 2019 [10]

28.The applicants concede that Part IV of the FSI Act, headed ‘Enforcement’, does provide for immunity from enforcement or execution in certain circumstances. In particular, they acknowledge that section 30 of the FSI Act, the provision relied upon by the respondent, relevantly provides that any non-commercial property of a foreign state is not subject to any process or order of the courts of Australia for the satisfaction or enforcement of a judgment. However, they submit, this does not mean that the tribunal cannot exercise its jurisdiction to make orders against the respondent under the RT Act — it merely makes enforcement more complicated.

29.In response to the respondent’s argument that the Tribunal decline to exercise a jurisdiction where enforcement is not possible, the applicants make the point that:

To succeed in any such argument the Respondent would need to establish that a relevant consideration in deciding whether to summarily dismiss the applications is the extent to which an order of the Tribunal could be enforced against any property held by the Respondent.

The Respondent does not address this issue and cites no authorities in support of its case.[15]

[15] Applicants’ submissions on the issue of foreign state immunity dated 8 February 2019 [17]-[18]

30.The applicants further submit that that the respondents have not explained how or why the applicants’ applications are frivolous, vexatious, lacking in substance or otherwise an abuse of the tribunal process, as would be required by section 32 of the ACAT Act. They submit that, to the extent that the argument is based upon the futility of the proceedings, it is well established that a court or tribunal should not consider the impecuniosity of the respondent when deciding whether to make an award of damages or an adverse costs order. Unfortunately, no authority was cited for this proposition.

31.Finally, in relation to the unfairness ground, the applicants contend that the respondent’s assertion of ‘unfairness’ was flawed for two reasons. First, the respondent does not have any immunity from the jurisdiction of the tribunal, and therefore it would not be ‘waiving’ any rights by a counter-claim in the tribunal as it would still retain any immunity to enforcement. Second, the applicants submitted, the kind of ‘unfairness’ relied upon by the respondents would not in any case be a proper basis for dismissing the proceedings at this preliminary stage.

32.Accordingly, the applicants contend that the Tribunal should proceed to set the matter down for hearing.

Consideration

33.The tribunal is a creature of statute. Its jurisdiction is limited to the things the law specifically authorises it to do. It must also do all the things that the law specifically requires that it do.

34.Section 36 of the ACAT Act provides that:

36     Applications to be heard

The tribunal must hear each application made to it unless the tribunal—

(a)refuses to hear the application, or part of the application, or dismisses it; or

(b)decides not to hold a hearing. [notes omitted]

35.In other words, where an application falls within the jurisdiction of the tribunal, section 36 of the ACAT Act requires that the tribunal hear that application unless it has grounds to refuse to hear it, dismiss it, or otherwise decide not to hold a hearing. The primary grounds under which the tribunal may refuse to hear an application, or part of an application, or dismiss an application, are found in section 32(1) of the ACAT Act. The tribunal can also decide not to hold a hearing under section 54 of the ACAT Act, but none of the grounds in that section are relevant to this case. Of course, the tribunal would also decline to hear an application that was outside its jurisdiction but, as set out above, that is not alleged in this case.

36.Section 32 of the ACAT Act provides:

Dismissing or striking out applications

(1)     This section applies if the tribunal considers that an application, or part of an application is––

(a)frivolous or vexatious; or

(b)lacking in substance; or

(c)otherwise an abuse of process; or

(d)made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.

(2)     The tribunal may, by order, do 1 or more of the following:

(a)refuse to hear the application or part of the application;

(b)dismiss the application or part of the application;

(c)direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—

(i)    within a stated period of time; or

(ii)without the leave of the tribunal. [note omitted]

(3)    The tribunal may make an order under subsection (2) on its own initiative or on application by a party.

…

Note  The tribunal must observe natural justice and procedural fairness (see s 7).

37.Section 32 is, broadly speaking, the tribunal’s ‘summary dismissal’ jurisdiction. Summary dismissal applications brought in the tribunal’s civil or residential tenancy jurisdictions are only rarely successful. The ACAT Act requires that the Tribunal be as “simple, quick, inexpensive and informal as is consistent with achieving justice.”[16] It is often much faster and more cost-effective and straightforward to simply hear an application in full rather than to hear a strike‑out application prior to the hearing. Nonetheless, where jurisdictional or complicated legal issues are raised, the tribunal will set the matter down for a primary hearing on that issue first.

[16] ACAT Act section 7(a)

38.Where a respondent seeks a dismissal under section 32 of the ACAT Act, the onus is on the respondent to establish that these provisions apply.[17]

[17] Cheluvappa v University of Canberra [2018] ACAT 108 [37]

39.In its response, the respondent relies upon sections 32(1)(a) and (c) of the ACAT Act — that is, it alleges that the applications are frivolous or vexatious or an abuse of process. The respondent’s submissions do not provide any further detail on how it says these sections apply. This is unfortunate, as the distinction between the various paragraphs of section 32 is not always straightforward.

40.In P v Registrar of Firearms [2018] ACAT 74 (P), Presidential Member McCarthy discussed the difference between the various grounds under section 32 of the ACAT Act as follows:

61.    The phrase ‘frivolous or vexatious’ is sometimes said to mean the same thing as lacking in substance or an abuse of process or also to mean that a claim has no reasonable prospects of success. However other cases, particularly early cases, have held that a proceeding is ‘frivolous’ when the party bringing it is ‘trifling with the court’, ‘wasting the time of the court’, or bringing the action only for annoyance. Early cases have held that an application is ‘vexatious’ not only when it is hopeless or oppressive but also where it tends to cause the other party anxiety, trouble and expense and is brought only for annoyance.

62.    More recent cases suggest a high degree of overlap or common meaning between ‘lacking in substance’ and ‘frivolous or vexatious’. It is sometimes said that a court or tribunal should look to the merit or substance of a claim. Where a claim or defence has substance, a party’s motivation for bringing it or defending it is irrelevant.

63.    ‘Abuse of process’ can overlap with ‘lacking in substance’ and/or ‘frivolous or vexatious’. It involves proceedings that are “foredoomed to fail”, where there is “no rational argument to support the claim”, where the claim “contains scandalous and vexatious allegations” and/or where the claim “could not possibly succeed”.

64.    Whilst not submitted in this case, abuse of process can also occur where the resources required to determine a claim and the interests at stake are out of all proportion to a just allocation of the time and finite resources of the court.

65.    In Commissioner for Social Housing v Williams when refusing an application to appeal out of time, the Appeal Tribunal similarly commented upon the importance of appropriate use of the Tribunal’s finite resources. [footnotes omitted]

41.Having reviewed the entirety of the material before me, there is nothing in the documentation filed by either party that could lead me to conclude that these applications are frivolous or vexatious, in the sense of being ‘trifling’ or ‘annoying’. To the contrary, there is a serious allegation that a lot of rent is owed. That said, the situation is clearly volatile, and the relationship between the parties antagonistic and, viewed in that context, the potential costs and difficulty of the enforcement process may well suggest that the applicants are motivated by some degree of anger or frustration. However, as Presidential Member McCarthy noted in P, as long as there is merit in the claim, motivation is not relevant.

42.The more persuasive of the respondent’s argument is that these proceedings are either lacking in substance or an abuse of process, because, at the end of the day, no matter what orders are made by the tribunal, those orders may not be able to be enforced against the respondent. The process is, at least in a legal sense, futile.

43.Two factors play into the Tribunal’s consideration here.

44.First, there is no doubt that saving a respondent from the burden of a useless or futile hearing is an appropriate use of the power under section 32 of the ACAT Act.[18] Still, the bar for exercising the power on this basis is a high one. The outcome of such an exercise of the tribunal’s power is the denial of an applicant’s right to a fair trial. It would only be appropriate where the hearing was genuinely doomed to fail, or without any merit. That is not the case here.

[18] See General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 [10] per Barwick CJ

45.The second factor is consideration of proportionality and the effective use of the resources of the tribunal. Drawing upon the observations of the President in Commissioner for Social Housing v Williams [2017] ACAT 53, it may be that, in extreme cases, the limited utility in, or lack of utility of, a proceeding, may justify its summary dismissal, even if there is some minimal or theoretical prospect of a successful outcome.[19] Such cases would, of course, be rare, but the public interest, and the interests of justice, are not served by allowing scarce resources to be consumed by pointless legal proceedings.

[19] See Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75 [67]–[76] where the alleged damage caused was so minimal, and the costs of obtaining a remedy so disproportionate, the claim was stayed as an abuse of process

46.Still, having regard to the material before me, I am not satisfied that this matter is so futile that it would justify summary dismissal. I have reached this decision for several reasons.

47.First, the legal framework established by the ACAT Act draws a clear distinction between orders made under the RT Act, and enforcement of those orders. It is not concerned with enforcement — at least, other than in the sense of drafting orders in such a way that they can be enforced, if needed. As a statutory tribunal, vested with the power to make decisions that are determinative of legal rights and obligations, the tribunal assumes its orders will be complied with. It is entitled to make the same assumption here, especially as the respondent has not expressly stated that it would not comply with a tribunal order. Enforcement may not even be necessary.

48.Second, even if the respondent failed to comply with any order made by the tribunal, such that the applicants were required to take enforcement action, it is not a foregone conclusion that the respondent would not engage with that process. When expressly asked by the applicants’ solicitor, at the directions hearing, whether the respondent intended to comply with any enforcement order, the respondent’s counsel chose his words carefully but ultimately did not contend that his client would simply ignore a judgment debt. Nor is any such contention expressly advanced in the respondent’s submissions.

49.Third, even if the respondent did refuse to comply with the tribunal’s order, and then pleaded immunity in relation to any enforcement proceedings, this does not necessarily make the process before the tribunal completely futile. There are many consequences of a tribunal order that do not require formal enforcement proceedings.

50.A party may choose to comply with an order, even when they are not bound by it. The order may be a catalyst for the parties to reach some other settlement. A change in circumstances may lead to a change in the respondent’s willingness to comply with the order, or the enforcement process. Even if that does not happen, an order of the tribunal may serve as a formal notice that the debt is owed, allowing the applicants to write it off or pursue alternative remedies through insurance. At the very least, these proceedings may serve as notice to others of the additional issues lessors should to consider when entering in to contractual arrangements about the use of land as an embassy.

51.Accordingly, there is no basis for concluding that these proceedings are so futile or without basis that they justify summary dismissal under section 32 of the ACAT Act, or on any other basis.

The unfairness ground

52.This ground relies upon extensive factual assertions that are untested, and incapable of being tested at this preliminary stage of the proceedings. It is generally not appropriate to summarily dismiss matters that involve significant factual disputes,[20] and I see no reason to depart from that principle in this case.

[20] Sidebottom v Cureton (1937) 54 WN (NSW) 88

53.However, even assuming I thought it was appropriate to decide this argument on preliminary basis, and assuming that I took the respondent’s assertions at their highest for this purpose, I am not satisfied that they would justify the dismissal of the claim at this early stage.

54.First, I am not satisfied that the applicants’ conduct, even as alleged by the respondent, would disentitle them from pursuing a remedy under the RT Act. Briefly stated, the respondent alleges an unlawful eviction and interference with its right to quiet enjoyment, amongst other claims. Proceedings under the RT Act very frequently involve counter-claims and mutual assertions of breaches of the agreement, and the RT Act, of this kind. Indeed, it is not unusual that both parties are found to have been at fault at some stage in the relationship. That alone does not disentitle either party from a remedy, nor does it provide a basis for the tribunal to strike out proceedings without hearing either claim.

55.Second, in relation to the consequences for the respondent’s immunity of defending these proceedings, I am not satisfied that the respondent would waive any immunity to enforcement proceedings in another forum, such as in the Magistrates Court, simply by making a counter-claim in these proceedings, in this forum. It may be that the respondent would be unable to enforce any counter‑claim, were it successful, without submitting to the jurisdiction charged with enforcement of the orders made, but consideration of that issue is beyond the scope of this decision. In any case, one option open to the respondent would be to plead the matters by way of setoff, rather than a counter-claim, so it need not be left with the dilemma as to whether to take enforcement proceedings.

56.I do appreciate that the respondent may be placed in a difficult, and perhaps even diplomatically embarrassing, situation by being required to respond to proceedings in this tribunal. However, it is not the only litigant to face the prospect of some embarrassment. That alone is not a basis upon which this Tribunal can or should dismiss these proceedings.

57.The fact witnesses will shortly be leaving Australia may present a practical problem to making out a defence or counter-claim but, again, the respondent is far from the only litigant to face this problem. The tribunal has procedures in place to deal with interstate and international witnesses. Timeframes for filing can be extended to overcome the vagaries of international communication, and the tribunal can, and usually will, grant leave for witnesses to give evidence by telephone. Again, this is not a basis upon which a claim, and particularly a claim the size of these proceedings, should be summarily dismissed.

58.Having regard to the answers to the preliminary issues set out above, the Tribunal is not satisfied that the application is frivolous, vexatious or an abuse of process, or that it should otherwise not proceed to hearing.

59.Accordingly, the Tribunal orders that:

(a)     the matter is to proceed to hearing; and

(b)     the matter is set down for telephone directions on Wednesday 27 March at 9:00am.

………………………………..

Senior Member H Robinson

HEARING DETAILS

FILE NUMBER:

RT 10 and 11 of 2018

PARTIES, APPLICANT:

RT 10/2018 – José Rosa and Isilda Rosa

RT 11/2018 – Adrian Rosa

PARTIES, RESPONDENT:

The Bolivarian Republic of Venezuela

COUNSEL APPEARING, APPLICANT

N/A

COUNSEL APPEARING, RESPONDENT

Mr James Macken

SOLICITORS FOR APPLICANT

Clayton Utz

SOLICITORS FOR RESPONDENT

N/A

TRIBUNAL MEMBERS:

Senior Member H Robinson

DATES OF HEARING:

N/A