Satchi & Satchi Australia Pty Ltd & Ors v Zeaiter Corporate Holdings Pty Ltd

[2008] NSWSC 411

CITATION:	Satchi & Satchi Australia Pty Ltd & Ors v Zeaiter Corporate Holdings Pty Ltd [2008] NSWSC 411
HEARING DATE(S):	30/04/2008
JUDGMENT DATE :	9 May 2008
JUDGMENT OF:	Hoeben J
DECISION:	I dismiss the notice of motion filed 28 April 2008 except insofar as an order was sought in respect of consent order 1 of the consent orders made by this court on 4 February 2008. In respect of summons 30004 of 2008 I dismiss so much of that summons as relates to an appeal from the decision of the Administrative Decisions Tribunal in matter number 079043. Second plaintiff to pay costs. The balance of the summons is to be dealt with in accordance with the consent orders made by this court on 4 February 2008.
CATCHWORDS:	Appeal from Appeal Panel of Administrative Decisions Tribunal - refusal to grant adjournment - refusal to transfer matter to Court of Appeal - refusal to reopen previous orders of court - whether error of law in decision of Appeal Panel - no error of law.
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Supreme Court Act 1970
CASES CITED:	Daykin v SAS Trustee Corp (2001) 51 NSWLR 328 Deveigne v Askar [2007] NSWCA 45 [104] – [114] Peglisi v Administrative Decisions Tribunals of NSW Appeal Panel (2001) 52 NSWLR 350
PARTIES:	Satchi & Satchi Australia Pty Ltd - First Plaintiff Hemalathasothy Ranjini Satchithanantham - Second Plaintiff Thambiappah Satchithanantham - Third Plaintiff Zeaiter Corporate Holdings P/L - Defendant
FILE NUMBER(S):	SC 30004/2008
SOLICITORS:	Third Plaintiff in person Thurlow Fisher - Defendant
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal
LOWER COURT FILE NUMBER(S):	079043
LOWER COURT DATE OF DECISION:	18 December 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday, 9 May 2008

30004/2008 – SATCHI & SATCHI AUSTRALIA PTY LTD & Ors v ZEAITER CORPORATE HOLDINGS PTY LTD

JUDGMENT

1 HIS HONOUR:

Nature of proceedings
The proceedings before the court arose from a summons filed on 7 January 2008 being No 30004 of 2008. It was similar in form to a summons previously filed being No 30145/2007. The reason for a further summons was that the plaintiff in the earlier proceedings (Satchi and Satchi Australia Pty Ltd) was deregistered at the time of the filing of that summons. The earlier summons was almost certainly a nullity ( Deveigne v Askar [2007] NSWCA 45 [104] – [114]). It was for that reason the present summons was filed which has as plaintiffs not only the company but two of its directors. The company had been restored to the register by 7 January 2008.

2 Both summonses came before Buddin J as Duty Judge on 4 February 2008. At the conclusion of the hearing before Buddin J, consent orders dated 4 February 2008 were made in respect of the present summons. Consent orders 1 – 5 dealt with matters in the summons under the headings “Interim Orders” and “Final Orders” relating to orders made by the Administrative Decisions Tribunal (ADT) on 18 December 2007 in matter No 075031. Summons No 30145 of 2007 was adjourned to 10 March 2008.

3 The consent orders also dealt with that part of the summons which related to orders made by the ADT on 18 December 2007 in matter No 079043. In that regard, consent order 6 provided as follows:

“ Appeal from Orders of Appeal Panel of the NSW Administrative Decisions Tribunal made on 18 December 2007 in Proceedings 079043
6. These proceedings, insofar as they concern the relief sought by the plaintiffs in the nature of an appeal of the decision of the Appeal Panel of the NSW Administrative Decisions Tribunal in proceedings 079043 made on 18 December 2007 and as pleaded in order 7 of the Interim Orders pleaded in the summons filed herein on 7 January 2008 and as pleaded in orders 3 and 4 of the Final Orders pleaded in the summons be stood over for further directions before Registrar on 10 March 2008.”

4 The Interim Orders and Final Orders in the summons to which reference is made in consent order 6 are as follows:

“ INTERIM ORDERS:
7. Court directs further conducts of these proceedings in relation to the Administrative Decisions Tribunal for the principal proceedings file No 079043.
FINAL ORDERS:
3. Set aside the orders made by the Tribunal on 18 December 2007 for the matter 079043.
4. Reinstate the orders sought by the plaintiff in the Tribunal below for the appeal matter 079043 in accordance with the document filed and served by the applicant for the matter 075034.”

5 The particulars provided in the summons in respect of those orders were:

“ For the matter 079043
1. On 24 February 2007, plaintiff initiated a proceeding in the Tribunal under file number 075034 due to the defendant’s various default part in their proceedings initiated by the defendant under the file number 055131 in the 2005 from Local to Tribunal.
2. That matter was heard by the Tribunal on 24 May 2007 and it was dismissed.
3. Plaintiff appealed that decision by way of appeal under the file number 079043, which heard on 13 November 2007 and the judgment was reserved.
4. On 18 December 2007, the Tribunal hand delivered the judgments for the matter 079043 after dismissed the matter 075031.
5. The judgment clearly proven that plaintiff’s allegations are in order but, the plaintiff has suffered miscarriage of justice as to the face of judgment and such dismissal.
6. Plaintiff relies on all documents and the material in the file number 075034, 079043 and transcripts of the hearing held on 24 May 2007 and 13 November 2007.”

6 When the matter came before the Common Law Registrar on 10 March 2008 the hearing of that part of the summons which related to an appeal from the decision of the ADT of 18 December 2007 in matter 079043 was fixed for 30 April 2008. It is that matter which came before me and to which this judgment relates. The third plaintiff, Thambiappah Satchithanantham (wrongly referred to in the transcript as the second plaintiff) appeared for himself and on behalf of the other two plaintiffs.

Factual background

7 A dispute arose between the second plaintiff, Hemalathasothy Ranjini Satchithanantham (who is the wife of the third plaintiff), and the defendant in respect of premises comprising the first floor, 53 Station Street, Wentworthville. The defendant was the owner of those premises and the second plaintiff was the lessee.

8 The defendant commenced proceedings on 8 February 2005 in the Bankstown Local Court against the second plaintiff claiming outstanding rent, outgoings and other monies on the basis that the second plaintiff was in breach of the lease. The second plaintiff filed a defence and brought a cross-claim against the defendant in the Local Court proceedings. On 15 September 2005 the Local Court proceedings were transferred to the ADT. On transfer to the ADT, the matter was given the number 055131.

9 On 31 August 2006 the ADT directed that the defendant file a further defence to the second plaintiff’s cross-claim. The defendant was in breach of that order and the further defence was not filed until 17 January 2007. The defendant said that was its only default in complying with orders made by the ADT. The third plaintiff in his submissions disputed that this was so and submitted that the defendant was in default of many directions made by the Tribunal but did not provide any particulars of those other defaults.

10 On or about 26 February 2007 the second plaintiff served the defendant with an Application for Original Decision and an Application for Urgent Interim Order. Those documents were given a new file number in the ADT, 075034. They alleged that the defendant was in breach of numerous directions by the ADT and sought that the defendant’s defence to the cross-claim in ADT proceedings 055131 be struck out and that judgment be entered in favour of the second plaintiff on her cross-claim for $303,015.66.

11 Not surprisingly, the defendant objected to the new proceedings and applied to the Tribunal to have them dismissed. An affidavit of Mr Edwards, who was then the solicitor for the defendant, sworn 23 May 2007 was relied upon in support of that application. The application came before Ms Higgins as a judicial member of the Tribunal on 24 May 2007. The third plaintiff appeared on behalf of the second plaintiff.

12 Ms Higgins dismissed ADT proceedings 075034 on the basis that they involved an amendment of the cross-claim which was already filed and formed part of ADT proceedings 055131. Because there might be matter on the second file which could be used in the first proceedings, Ms Higgins gave liberty for that material to be transferred to proceedings 055131.

13 The formal orders made by Ms Higgins were:

“The first order is that the application (075034) is dismissed on the basis that it is misconceived in that it does not raise any new claim that relates to the claim that is the cross-claim of the applicant in file no 055131.
2. The applicant is at liberty to file in proceedings 055131 annexure “A(1)” as part of its cross-claim.”

14 The second plaintiff appealed to an Appeal Panel of the ADT. The appeal was given a new ADT number – 079043. That is the number referred to in the consent order and summons. The third plaintiff filed written submissions in support of the appeal and appeared on behalf of the second plaintiff before the Appeal Panel on 13 November 2007. The Appeal Panel comprised Deputy President Judge Chesterman, Judicial Member Mr Rickards and Non-judicial Member Dr Weule.

15 It is apparent from the transcript of the proceedings before the Appeal Panel in matter 079043 that Judge Chesterman carefully explained the nature of the proceedings and what it was that the second plaintiff needed to establish in order to succeed. Judge Chesterman noted that much of the written submissions were irrelevant to those issues. In his introductory remarks, Judge Chesterman said:

“It’s an appeal against the decision by the Tribunal striking as we said striking out an application put on in this matter on the appellant on the ground that the application simply duplicated a cross-claim that was already before the Tribunal by virtue of being transferred from the Local Court.
The primary issue in the appeal is whether the Tribunal erred in making that decision and that by virtue of the duplication it was appropriate to strike out the application and, indeed, in effect, put to one side the Tribunal file that was connected with the application. As we see it, what needs to be considered in deciding whether that decision was correct is, whether it was correct of the Tribunal to find that all that was being achieved by the appellant in putting on the application in question was, at most, an amendment of the cross-claim that was already before the Tribunal. If the Tribunal was correct in making that ruling regarding the impact of the appellant’s application, we do not see how it could possibly be said that the Tribunal erred in striking out the application.
If, on the other hand, there was, in some sense, a denial of the right of the appellant to bring more matters before the Tribunal that arose out of the cross-claim, because of the appellant not being permitted to continue with the application, well then there may be grounds for allowing the appeal. But something of that sort needs to be shown to us. Now Mr Satchi, as agent for the appellant, the onus lies on you to show to us, this morning, how the appellant, your wife’s rights in this matter were, in any sense, prejudiced by virtue of the decision. That what was in issue, in the application by her that was struck out, differed materially not just in detail but differed materially from the issue raised in the cross-claim in the Local Court, as amended, within the limits allowed by normal procedures for amending claims.
A number of the other matters raised, I must say, on behalf of my colleagues as well as myself, a number of the matters in the documents lodged by you and indeed, to some extent in the Notice of Reply are not relevant to those very precise matters that are relevant in the appeal and I want to say that, at the outset to make it clear that this morning we are only going to look at the issues that arise in deciding whether that order made by the Tribunal was or was not correct in law. Now, following that introduction now, Mr Satchi, can I ask you to address us by which I mean tell us how within the material that you’ve lodged in the appeal or independently from that, you make the argument that the appellant’s rights were prejudiced by the decision not to allow a separate application in file 075034. It’s simple to say that the claims made in that file had already been sufficiently well covered, subject perhaps to some amendment along the way in the cross-claim lodged in the Local Court and transferred to this Tribunal in file 055131.”

16 Despite this clear statement of issues and of the task before him, the third plaintiff steadfastly refused throughout the course of the proceedings before the Appeal Panel to deal with those matters.

17 The third plaintiff submitted that Ms Higgins should have struck out the defendant’s defence to cross-claim in matter no 055131 because of the defendant’s lateness in filing it. The Appeal Panel pointed out to him that a default of that kind was not sufficient to justify such a response and that such an application should have been brought in proceedings 055131 and not in separate and new proceedings.

18 Despite being asked on a number of occasions to point out what was materially different in the cross-claim brought in proceedings 075034 from the cross-claim in proceedings 055131, the third plaintiff failed to identify any difference. He did, however, repeatedly assert to the Appeal Panel that there was in fact such a difference. The third plaintiff was unable to point out how his wife had suffered any prejudice by having proceedings 075034 dismissed when the same issue raised in those proceedings was going to be litigated in proceedings 055131.

19 The Appeal Panel of the ADT delivered its decision on 18 December 2007. Having reviewed the facts, the Appeal Panel set out its conclusions as follows:

“19. In the Appeal Panel’s opinion, the appeal is without merit and must be dismissed for the following reasons.
20. The Tribunal’s decision on 24 May 2007 had two principal components. First, it constituted the dismissal of an application by the appellant for the order that the respondent should pay to her the damages sought in her cross-claim, together with costs. Secondly, it included a determination that since the cross-claim was already before the Tribunal as an element of the proceedings in file 055131, the appellant’s filing of two fresh applications (ie an application for Original Decision and an Application for an Urgent Interim Order), thereby causing file 075034 to be created, resulted in an unnecessary duplication, which should be remedied by appropriate orders.
21. The Appeal Panel has no doubt that the first of these steps was justified. The appellant put forward no evidence to contradict the relevant statements in Mr Edwards’ affidavit. These statements outlined the limited extent to which the respondent had failed to comply with the Tribunal’s directions regarding the filing of a further defence to the cross-claim within stipulated time limits and provided explanations for these failures. These failures fell very far short of providing grounds for an order striking out the respondent’s further defence to the cross-claim. An order to this effect would have been manifestly unjust and unsupportable.
22. The second step taken by the Tribunal on 24 May 2007 was of formal significance only. Commonly, cross-claims in the Retail Leases Division are given a separate trial number to that of the initial claim. But that does not necessarily occur when, as in this case, a claim and a cross-claim arrive at the Tribunal by transfer from a court.
23. The Tribunal, by taking this “second step”, did nothing to prevent the cross-claim being heard and determined at a subsequent time, along with the claim initially instituted by the respondent. It simply confirmed that, as had been the case before the appellant filed her application on 23 February 2007, both the claim and cross-claim should “travel together” in one file, file number 055131. By virtue of the second order made on 24 May 2007, the contents of annexure A.1 for the Application for Original Decision that the appellant had lodged on 23 February 2007 formed part of the material put before the Tribunal when it heard the claim and the cross-claim.”

20 The Appeal Panel dismissed the appeal and on the basis that the appeal as a whole was without merit, ordered costs against the second plaintiff.

21 It was common ground that the ADT proceedings 055131, including the defendant’s claim for unpaid rent and the second plaintiff’s cross-claim, were heard by the ADT on 5 and 6 September and 10 and 11 October 2007. The Tribunal has reserved its decision on that matter.

22 The second plaintiff appealed from the decision of the Appeal Panel by summons as previously referred to.

23 On 28 April the second plaintiff filed a notice of motion seeking a number of orders which affected these proceedings. Although the return date on the motion was 5 May, it clearly needed to be brought to the attention of the defendant before the hearing date of this matter. In fact the defendant received a copy of the notice of motion and affidavit in support on the afternoon of 29 April. The orders sought in the notice of motion which are relevant to this matter were as follows:

“1. Vacate the hearing date fixed on 30 April 2008 in these matters.
2. Review and vary the orders 1 and 6 made by this Court on 4 February 2008.
In relation to Order 6:
3. Hearing of file number 079043 in this court (order 6) be stayed until the judgment is delivered in the ADT for matter number 055131.
4. The order 6 made by this court on 4 February 2008 be reviewed and redirected subject to order 3 above.
5. The court order ADT to transfer the file number 079043 to this court with all documents, exhibits, submission etc to this court prior to the hearing of the said appeal, subject to orders 3 and 4 above.”

24 There was nothing in the supporting affidavit which provided any basis for any of the above orders. At the hearing Mr Clachers, the solicitor for the defendant, made available to the court and to the third plaintiff a bundle of documents which included the Application for Original Decision filed by the second plaintiff in the ADT (proceedings 075034), the affidavit of Darren John Edwards sworn 23 May 2007, the transcript of the dismissal hearing before Ms Higgins on 24 May 2007, the second plaintiff’s notice of appeal filed in the ADT (proceedings 079043), submissions filed on behalf of the second plaintiff in the ADT for the appeal, a transcript of the hearing of the second plaintiff’s appeal in the ADT (proceedings 079043), the decision and reasons for decision of the ADT Appeal Panel of 18 December 2007 and a copy of the pleadings filed in the Supreme Court.

Submissions and consideration
Notice of Motion

25 When asked why the hearing date should be vacated, the third plaintiff put forward a number of reasons. The first was that under s48 of the Supreme Court Act (SCA) this matter should be remitted to the Court of Appeal for hearing since it involved a decision by a specified tribunal, ie a body of persons having amongst its number a judge.

26 I accept that in accordance with Daykin v SAS Trustee Corp (2001) 51 NSWLR 328 (approved in Peglisi v Administrative Decisions Tribunals of NSW Appeal Panel (2001) 52 NSWLR 350) these proceedings could and should have been commenced in the Court of Appeal. Under s51 SCA despite this irregularity, the proceedings are deemed to be properly commenced for all purposes. Subsections 51(1)(b) and (d) give me a discretion as to whether I should transfer these proceedings to the Court of Appeal or whether as a single judge, I should continue to hear them.

27 I have concluded that I should continue to hear this matter and dispose of it. This is because it does not raise any matter of general importance and involves a simple question. It would be a waste of the scarce resources of the Court of Appeal for this matter to be transferred to it. It would also involve the parties in considerable additional expense in order to prepare appeal books to enable the matter to be properly dealt with by the Court of Appeal. This expense can be conveniently avoided by me dealing with the matter since I am fully conversant with both its factual and legal issues.

28 The next submission to vacate the hearing date was that the third plaintiff did not realise that the matter was going to be heard on 30 April. He submitted that he had not understood the significance of the Registrar fixing the matter for hearing on 30 April.

29 That was a surprising submission given that the Registrar’s order was clear in its terms and that the third plaintiff was present when the order was made. It is difficult to understand why the third plaintiff filed 94 pages of submissions and supporting documents on 16 April if he did not believe they were to be used in a hearing on 30 April. I can only conclude that the reason why the third plaintiff filed a motion on 28 April to vacate the hearing date on 30 April was because he knew that unless he did so and was successful in that application, the matter would in fact proceed to hearing on that date. Finally, the third plaintiff received from the solicitors for the defendant written submissions which were filed in court on 23 April 2008. These submissions made it clear that the matter was going to proceed to a hearing on 30 April. For those reasons I reject the third plaintiff’s submission that it was his understanding that the matter was not going to be heard on 30 April.

30 It may have been that the third plaintiff believed that his motion would be successful and that the hearing date would be vacated. There was, however, no justification for that belief. The third plaintiff did not serve a motion on the solicitors for the defendant until the afternoon of 29 April which gave to them almost no warning of the application. There was nothing in the affidavit filed with the motion to support an order vacating the hearing date. It was clear from the defendant’s written submissions that any such application would be opposed.

31 The third plaintiff submitted that he was simply not ready to argue his case and that he needed at least a week to prepare his submissions. Normally the court would be sympathetic to such an application, although a costs order against the party seeking to vacate a hearing date on that basis would be an inevitable consequence.

32 Those considerations do not apply here. Costs would not be an adequate recompense to the defendant. The defendant has now been required to meet the same claim on three occasions – before Ms Higgins, before the Appeal Panel of the ADT and now before this court. It should not be required to expend further costs on yet a fourth occasion. Moreover, these proceedings which have been brought by the second plaintiff are misconceived and without merit and the matter should be finalised without further waste of costs and of the court’s time.

33 The application by the third plaintiff to vacate the hearing of 30 April is refused.

34 The defendant does not consent to any variation or review of consent order 6 made on 4 February 2008. No material has been put before the court which would justify such a variation in the absence of agreement by the defendant. Accordingly, I decline to make that order.

35 The third order sought in the motion was that this matter be stayed until the ADT delivered judgment in matter number 055131. No material was put before the court to justify such a stay. On the contrary, the transcripts of proceedings in the ADT and the pleadings in the ADT which were before the court, made it clear that the issue before me was separate and discrete from the claim for unpaid rent and damages which were the subject of proceedings 055131 in the ADT. I decline to make that order.

36 Order 4 in the motion sought the same relief as in order 2 and for the same reason I decline to make it.

37 Order 5 in the motion sought an order from this court directing the ADT to transfer to this court file number 079043, including all documents contained in it. The normal procedure would be to issue a subpoena or notice to produce to the ADT. In any event, the bundle of documents provided to the court and to the third plaintiff by the defendant contained all of the material likely to have been in ADT file number 079043. The third plaintiff tendered documents which were before the ADT Appeal Panel. The third plaintiff, therefore, had all the documents which he needed to argue the matters raised in the summons. It follows that order 5 was unnecessary and I decline to make it.

38 In summary, I decline to make any of the five orders sought in the notice of motion and in due course I propose to dismiss that part of the notice of motion which relates to consent order 6. That means that the only part of the second plaintiff’s notice of motion which remains is the order sought in relation to consent order 1.

Summons

39 As a preliminary matter, it seems to me that neither the first plaintiff nor the third plaintiff has any standing in relation to the matter before me, that is the appeal from the Appeal Panel of the ADT in matter number 079043. Only the second plaintiff has standing to bring such an appeal. It was she who originally commenced matter no 075034 in the ADT and it was she who appealed to the Appeal Panel of the ADT when the judicial member, Ms Higgins, dismissed matter number 075034.

40 The second plaintiff’s right of appeal to this court is governed by s119 of the Administrative Decisions Tribunal Act 1997. That section provides:

“119(1) A party to proceedings before an Appeal Panel of the Tribunal may appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel in those proceedings.
(1A) Despite subsection (1), an appeal does not lie to the Supreme Court against any of the following decisions of the Appeal Panel except by leave of the Supreme Court:
(a) an interlocutory decision,
(b) a decision made with the consent of the parties,
(c) a decision as to costs.
(2) The Appeal Panel (or any of the members constituting the Appeal Panel) cannot be made a party to an appeal under this section. Rules of court made under the Supreme Court Act 1970 may make provision for the parties to any such appeal (including the designation of a respondent where the only party in the proceedings from which the appeal is brought was the appellant).
(3) An appeal by a person under this section must be made:
(a) within such time and in such manner as is prescribed by rules of court made under the Supreme Court Act 1970 , or
(b) within such further time as the Supreme Court may allow.”

41 It may be that the decision of the Appeal Panel was an interlocutory decision and that the second plaintiff does not have an appeal as of right but needs the leave of this court to bring the appeal. That matter was not argued before me by either side. To the extent that leave to appeal might be required, I propose to grant it so that this matter can be dealt with on its merits and finally disposed of. Given the matter’s unfortunate history, it would not be appropriate for it to be disposed of by a refusal to grant leave given that the merits of the matter were argued before me.

42 For the second plaintiff to succeed, she needed to raise a question of law which was erroneously determined or applied by the Appeal Panel. As with the proceedings before the Appeal Panel, despite my attempts to direct the third plaintiff’s attention to the issue which he had to deal with, he refused to come to grips with that problem and continually tried to argue factual issues which were irrelevant to this appeal. Regrettably, the third plaintiff in presenting the appeal on behalf of the second plaintiff seemed unable to understand the concept of identifying evidence to support the sweeping assertions made by him. His approach was to make broad assertions but then fail to substantiate those assertions in any way.

43 Doing the best I can, the following matters appear to have been relied upon on behalf of the second plaintiff.

Denial of Natural Justice and Miscarriage of Justice

44 It was submitted on behalf of the second plaintiff that in the proceedings before the Appeal Panel there had been a denial of natural justice and a miscarriage of justice. After making that assertion, the third plaintiff was unable to take the court to any part of the transcript of the proceedings before the Appeal Panel to substantiate it. On my reading of the transcript, it is clear that the Appeal Panel tried to explain to the third plaintiff what he had to do for the second plaintiff to succeed on her appeal. He was given every opportunity by the Appeal Panel to put forward the submissions upon which he relied. It was no fault of the Appeal Panel that the third plaintiff repeatedly raised irrelevant issues. I find there was no denial of natural justice by the Appeal Panel to the second plaintiff in matter number 079043 and that this submission fails.

The Appeal Panel reached its decision upon a false factual basis

45 It was never made clear what was the false factual basis which was complained of. From the totality of the submissions put on her behalf, it seems to have been either the acceptance by the Appeal Panel that the only default by the defendant was a delay in filing a further defence to the cross-claim or the acceptance by the Appeal Panel that the cross-claim in the second proceedings (075034) was substantially the same as the cross-claim in the first set of proceedings in the ADT (055131).

46 In relation to the first factual matter, although there were repeated assertions before the Appeal Panel of other breaches of orders and directions by the defendant, no evidence was adduced of those breaches. The only evidence before the Appeal Panel was the affidavit of Mr Edwards, which frankly conceded a default in filing the further defence.

47 In relation to the form of the cross-claim, it is apparent from the pleadings in the second matter (075034) that at most the cross-claim there relied upon, is an amended version of the cross-claim in the first set of proceedings (055131). The relief sought alleges in terms that the defence to the cross-claim in the first set of proceedings be struck out and that judgment thereafter be entered in favour of the second plaintiff in terms of the cross-claim in the second set of proceedings.

48 There is no evidence before me to substantiate the submission that the Appeal Panel proceeded on a false factual basis. On the contrary, all the evidence indicates that the Appeal Panel proceeded on a correct factual basis. This submission has not been made out.

Inadequate reasons

49 It was submitted on behalf of the second plaintiff that an error of law had occurred because the Appeal Panel had provided inadequate reasons for its decision. Having made that submission, the third plaintiff provided nothing to substantiate it. That is not surprising. The judgment of the Appeal Panel is logical, comprehensive and exposes its reasoning process. This submission has not been made out.

The Appeal Panel ignored submissions put on behalf of second plaintiff

50 It is true that in writing and orally, a large number of submissions were made on behalf of the second plaintiff to the Appeal Panel. As the Appeal Panel pointed out in the course of the proceedings, most of those submissions were irrelevant. The error alleged to have been committed by Ms Higgins was never articulated to the Appeal Panel. The consistent submission made on behalf of the second plaintiff before the Appeal Panel was that the defendant’s further defence should be struck out because it was filed late and that in some way which was never identified, the second plaintiff would be prejudiced if the second set of proceedings (075034) was dismissed.

51 To the extent that the submissions put on behalf of the second plaintiff were relevant to the matter which the Appeal Panel had to decide, they were considered and dealt with in the judgment of the Appeal Panel. There was no obligation on the part of the Appeal Panel to deal with submissions which were irrelevant to the issue before it. This submission has not been made out.

52 It follows that the second plaintiff has failed to identify any error of law on the part of the Appeal Panel and this part of the summons must fail.

Conclusion

53 As indicated above, it seems to me that summons 30145 of 2007 is a nullity in that those proceedings were commenced by a company which was deregistered at the time. Since neither party made any submissions in relation to that issue, I do not propose to make any order.

54 In relation to the matters which were argued before me, I make the following orders:

1. I dismiss the notice of motion filed 28 April 2008 except insofar as an order was sought in respect of consent order 1 of the consent orders made by this court on 4 February 2008 (see order 2 of the orders sought).

2. I order that the second plaintiff pay the costs of that notice of motion.

3. I stand the balance of the notice of motion, ie that part which relates to consent order 1 of consent orders made by this court on 4 February 2008 to the Common Law Registrar’s List for directions.

4. In respect of summons 30004 of 2008 I dismiss so much of that summons as relates to an appeal from the decision of the Administrative Decisions Tribunal in matter number 079043.

5. I order the second plaintiff to pay the costs of the proceedings before me. Included in those costs will be the costs incurred by the defendant in the Supreme Court in defending those parts of the summons which relate to the appeal by the second plaintiff from the decision of the Administrative Decisions Tribunal in matter number 079043.

6. The balance of the summons is to be dealt with in accordance with the consent orders made by this court on 4 February 2008.

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