Sullivan v St George Community Housing Co-op Limited

[2010] NSWCA 230

NEW SOUTH WALES COURT OF APPEAL

CITATION:
SULLIVAN v ST GEORGE COMMUNITY HOUSING CO-OP LIMITED [2010] NSWCA 230
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2010/45059

HEARING DATE(S):
6 September 2010

JUDGMENT DATE:
6 September 2010

EX TEMPORE DATE:
6 September 2010

PARTIES:
Owen Noel Sullivan – Applicant
St George Community Housing Co-op Limited - Respondent

JUDGMENT OF:
Basten JA     

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 4535/09

LOWER COURT JUDICIAL OFFICER:
Elkaim DCJ

LOWER COURT DATE OF DECISION:
29 January 2010

COUNSEL:
R G Christie – Applicant
A F Fernon - Respondent

SOLICITORS:
Christie’s Advocacy International – Applicant
Gibara & Soubris Lawyers - Respondent

CATCHWORDS:
APPEAL – civil – right to appeal from decision of District Court on an appeal from the Consumer, Trader and Tenancy Tribunal
WORDS & PHRASES – “action”

LEGISLATION CITED:
[<i>Consumer, Trader and Tenancy Tribunal Act 2001</i>] (NSW), s 67
[<i>District Court Act 1973</i>] (NSW), s 127
[<i>Supreme Court Act 1970</i>] (NSW), s 69

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:
(1)  Order that the further hearing of the application to extend time and whether to summarily dismiss the summons, will be adjourned until 24 September 2010 at 9.30 am.
(2)  Order the applicant to pay the respondent’s costs of today; and
(3)  Direct that any further written submissions and motion by the applicant (addressed to the issues referred to in (1)) be filed by 5 pm on 20 September 2010.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 2010/45059

BASTEN JA

6 September 2010

SULLIVAN v ST GEORGE COMMUNITY HOUSING LIMITED (NO 1)

Judgment

1. BASTEN JA: In this matter there is an application for an adjournment in order to allow Mr Sullivan to obtain assistance in respect of the issue of law which has arisen. Until today, at least for part of the time during which this matter has been pending, Mr Sullivan was representing himself. He has now, as I understand it, obtained a grant of legal aid in order to have counsel’s assistance in putting submissions to this Court. There is certainly an issue of law which has not been resolved as to the jurisdiction of this Court in considering a purported appeal from District Court, which in turn has determined an appeal from the Consumer, Trader and Tenancy Tribunal (“the Tribunal”) under s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (“the CTTT Act”).

2. The circumstances in which legal aid has been sought and the reason for the adjournment are not entirely clear.  There is no affidavit before this court as to the steps taken or the time at which various steps were taken.  I am told by Mr Christie, who appears for the applicant, that counsel has been briefed and is of the view that a written transcript should be obtained of the hearing before the Tribunal.  He is not able to assist me as to why that would be relevant to any issue which has been raised in this Court. 

3. I have indicated in the course of discussion that there appear to be two issues which need to be determined at this stage. One concerns whether Mr Sullivan has in fact got a right of appeal under s 127 of the District Court Act 1973 (NSW), a proposition which is denied in submissions filed by Mr Fernon on behalf of the respondent. The applicant, and to the extent that he has had legal advice, his legal advisers, have been on notice of that submission since at least 11 June 2010.

4. The second matter relates to the possibility that the summons, insofar as it alleges procedural unfairness, may rely upon a grant of relief under s 69 of the Supreme Court Act 1970 (NSW). In order to avoid the summons being dismissed, it would be necessary to demonstrate at least an arguable case that there was some procedural unfairness in the District Court; and I reiterate, in the District Court, not in the Tribunal.

1. To allow the matter to proceed under s 69 of the Supreme Court Act, the applicant will need leave to amend to seek appropriate relief and to join the District Court.  The written submissions filed for the respondent deny the existence of error or procedural irregularity in the District Court.   Until a response is provided to those submissions, there does not appear to be an arguable case, without which leave to amend is likely to be refused.

2. In order for counsel to give consideration to these matters and because the issues raised are of some importance, the question of the availability of an appeal not yet having been resolved by this Court, an adjournment is warranted. The matter has been set down for hearing once before and has been adjourned.  Nevertheless, I propose to grant an adjournment for a period of three weeks, which would mean revisiting the matter on Friday, 24 September at 9.30 am, to determine whether the applicant should have an order extending time and whether the summons should be summarily dismissed.

3. There is no reason why the respondent should not have its costs of today and I will so order.

4. Accordingly, the Court:

   (1)orders that the further hearing of the application to extend time and whether to summarily dismiss the summons, will be adjourned until 24 September 2010 at 9.30 am;

   (2)        orders  the applicant to pay the respondent’s costs of today; and

   (3)directs that any further written submissions and motion by the applicant (addressed to the issues referred to in (1)) be filed by 5 pm on 20 September 2010.

   **********

AMENDMENTS:

06/09/2010 - Incorrect matter number - Paragraph(s) Coversheet, page 1 of judgment

LAST UPDATED:
6 September 2010