Verma & Anor v Reynolds
[2018] ACAT 89
•13 September 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
VERMA & ANOR v REYNOLDS (Civil Dispute) [2018] ACAT 89
XD 800/2018
Catchwords: CIVIL DISPUTE – application to strike out proceedings – whether the application fee and interest are included in the monetary jurisdictional limit of the tribunal
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 16, 18, 19, 48
Legislation Act 2001 ss 139, 140
Magistrates Court Act 1930 ss 259, 261, 266A
Unit Titles (Management) Act 2011 s 31
Subordinate
Legislation cited: Explanatory Statement for the ACT Civil and Administrative Tribunal Bill 2008
Cases cited: CIC Australia Ltd v ACT Planning and Land Authority & Ors [2013] ACTSC 96
In The Matter Of Ruling Tribunal Section 31 of the Unit Titles (Management) Act 2011 [2017] ACAT 56
Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98, 105-107
Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn as Trustees for St Mary Mackillop College Canberra v Kenningham [2017] ACAT 97
List of texts/
papers cited: Macquarie Dictionary
Tribunal: Senior Member H Robinson
Date of Orders: 13 September 2018
Date of Reasons for Decision: 13 September 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 800/2018
BETWEEN:
KAVITA VERMA
WILLIAM REES
Applicants
AND:
PATRICK LEO REYNOLDS
Respondent
TRIBUNAL: Senior Member H Robinson
DATE:13 September 2018
ORDER
The Tribunal orders that:
1.The application for interim orders is dismissed.
2.The matter is referred to a Conference and Evaluation on Friday 5 October 2018 at 10:00am.
………………………………..
Senior Member H Robinson
REASONS FOR DECISION
1.This is an interim application by the respondent to ‘strike out’ the present proceedings on the basis that the application is an abuse of process and/or exceeds the Tribunal’s jurisdiction.
Background
2.These proceedings were commenced by way of a civil application on 20 June 2018. The respondent, through his representative Mr Polleycutt, filed a response to these proceedings on 23 July 2018. In that response, the respondent sought orders that the proceedings be dismissed for abuse of process or, in the alternative, want of jurisdiction.
3.On 31 July 2018, the Tribunal made directions, in chambers, that the respondent file a brief submission setting out any basis for objection to the Tribunal’s jurisdiction by Friday 10 August 2018. Further to these directions, the respondent’s representative filed a written outline of submissions on the interim application on 10 August 2018 (the respondent’s submissions). In this submission, the respondent also sought that the applicant’s partner be joined as a respondent to the proceedings.
4.The strike out application was set down for interim hearing on Wednesday 22 August 2018. The first applicant appeared in person. The respondent did not appear, but advised the Tribunal prior to the hearing that he could not do so because he needed to travel overseas for a family emergency. The respondent’s representative also did not appear. The respondent asked, by way of email, that the interim application be determined in chambers in his absence.
5.At the interim hearing on 22 August 2018 the first applicant consented to a modified form of one of the orders sought by the respondent – that her partner be joined as an applicant.[1] She advised that Mr Rees so consented. Accordingly, the Tribunal ordered that Mr Rees be joined as the second applicant. The first applicant agreed that any remaining issues could be determined by the Tribunal on the papers without the need for a further hearing.
[1] The respondent had sought that the applicant’s partner, Mr Rees be joined as a respondent, but it is more appropriate that he be joined as an applicant, as he also has a suit against the respondent.
6.These reasons set out my decision on the interim application.
The respondent’s submissions
7.For efficiency, I have attached respondent’s submissions to these reasons. I have not attached the response, which also raises the issue of want of jurisdiction. I have considered the issues raised by the respondent’s representative in those submissions below.
8.I note, by way of background to the respondent’s submissions, that this is one of several matters involving the same respondent, and in which the respondent is represented by the same representative. The existence of other proceedings would usually not be a relevant consideration, let alone even referenced in reasons such as these, but in this case the respondent’s submissions expressly refer, in paragraph 3, to another proceeding involving the respondent (the other proceeding).
9.In the other proceeding, I determined that the tribunal’s jurisdiction limit for civil disputes included the $25,000 jurisdictional limit provided for by section 18 of the ACT Civil and Administrative Act 2008 (the ACAT Act), plus interest provided for under section 19 of the ACAT Act, and the application fee (should it be awarded to a successful party under section 48 of the ACAT Act). It is this decision that I understand that the respondent is referring to in his submissions as “…not formed in an appealable order or formed as an appealable decisions”[2] and which he “rejects”. I will deal with this shortly.
[2] Paragraph 3a of the respondent’s submissions
10.It is my understanding that the respondent sought that these proceedings be struck out or stayed on the grounds that:
(a)first, the contract in issue was between himself and both the first applicant and her partner Mr Rees, and the proceedings should have been instituted in both their names (the joinder issue); and
(b)second, the applicant seeks a total of $25,161.99, which includes both an amount of the claim of $24,850, the application fee of $150, and interest. This issue of interest exceeds the Tribunal’s civil jurisdiction (the jurisdiction issue).
The joinder issue
11.The respondent has sought an order that Mr Rees be joined as a “respondent”, or that the proceedings be dismissed.
12.The respondent is the party who “responds” to the claim. There was no basis upon which Mr Rees could be joined as a respondent, as the applicant has no claim against him, and nor is there any counterclaim nor third party application on foot against him.
13.However, as a party to the contract in issue, Mr Rees may consent to being a co-applicant. There being no opposition to this, an order to this effect was so made at the interim hearing on 22 August 2018. This order would appear to resolve any concerns the respondent may have about the correct identity of the applicants to the proceedings. Accordingly, I do not need deal with the other assertions made by the respondent in support of the joinder issue.
The jurisdictional limit
14.As I understand the respondent’s position, it is that the tribunal’s jurisdiction is limited to $25,000, including the application fee and interest.
15.This application is a civil dispute application within the meaning of section 16 of the ACAT Act, being essentially either a damages application under section 16(b), a contract dispute under section 16(a), or (most relevantly) a consumer law claim under section 16(i).
16.Section 18 of the ACAT Act deals with the jurisdictional limit for ACAT claims. This section says, relevantly, that:
$25 000 limit on civil dispute applications
(1) A civil dispute application cannot be made to the tribunal for an amount greater than the tribunal’s jurisdictional limit, unless section 20 (Abandoning excess to come within jurisdiction) or section 21 (Jurisdiction by agreement—amounts over $25 000) allows the application to be made.
(2) The tribunal’s jurisdiction is limited to—
(a)civil dispute applications claiming amounts of not more than $25 000;…
17.Section 19 of the ACAT then deals with “working out amount of application for jurisdiction”. It provides relevantly that:
Working out amount of application for jurisdiction
(1) In working out the amount claimed, or the amount sought to be declared as a debt, to decide whether the tribunal has jurisdiction in relation to a civil dispute application, the following amounts for the application are to be disregarded:
(a)a claim for interest;
(b)a claim for a lump sum instead of interest.
18.Section 19(1)(a) quite plainly, and in express terms, provides that a claim for interest is to be disregarded when calculating the jurisdictional limit for a claim. I cannot see any ambiguity in the operation of section 19. A claim for interest is not included when working out the amount of an application.
19.The respondent then refers to sections 259, 261 and 266A of the Magistrates Court Act 1930. These sections deal with the interaction between equity and the common law. I do not completely understand what the respondent is suggesting here, but it appears that he is arguing that there is some equitable principle that prevails so as to limit the jurisdiction of the Tribunal. What this principle is, he does not say. It may be that the contentions at paragraphs 7 to 9 of his submissions are directed only to whether Mr Rees should be joined as a party, rather than to the Tribunal’s monetary jurisdictional limit. However, in the event that this line of argument is aimed at the Tribunal’s jurisdictional limit, I make the observation that the statutory provisions in sections 18 and 19 of the ACAT Act are not ‘common law principles’ (equitable or otherwise), but are statutory provisions. Statute law prevails over both the common law and equity[3].
[3] Eg. Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98, 105-107 per Davies and Branson JJ
20.The interaction between the statutory limitation in section 18 of the ACAT Act, and the power to award a refund of the application fee is not as clear, as there is no express provision that clarifies their interaction.
21.The Tribunal’s capacity to award the filing fee is found in section 48 of the ACAT Act. This deals with ‘costs of proceedings’. It provides:
Costs of proceedings
(1) The parties to an application must bear their own costs unless this Act or another territory law otherwise provides or the tribunal otherwise orders.
(2) However—
(a)the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant––
(i)the filing fee for the application; …
(ii)any other fee incurred by the applicant that the tribunal considers necessary for the application; or
Examples––subpar
· a fee for a business name or company search
· a filing fee for a subpoena· hearing fees
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(b)if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application—the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or
…
22.The Explanatory Statement for the ACT Civil and Administrative Tribunal Bill 2008, contains the following comments about clause 48 of the Bill:
Clause 48 Costs of proceedings
Provides that the parties must bear their own costs unless this Act or the tribunal otherwise orders:
· If the tribunal decides a proceeding on an application in favour of the applicant, the tribunal may order the other party to pay the applicant the filing fee for the application;
· If the tribunal considers that a party caused unreasonable delay or obstruction before or during the proceeding, the tribunal may require the party to pay the reasonable costs of the other party arising from the delay or obstruction; and
· Subject to clause 49 (costs for contravening an order), if a party to the application contravenes an order of the tribunal - the tribunal may order the contravening party to pay all or part of the costs of the application to the other party.
23.Two observations may be made about this power.
24.First, the Legislation Act requires that provisions of an Act be read in the context of the Act as a whole.[4] Read in context, section 48 is a costs power.[5] It does not deal with the substantive claim, but rather with the ‘costs of the proceeding’ in which the claim was heard. This is particularly clear in the relation to the application fee. Section 48(2), which provides the power for the Tribunal to make an order about the payment of the application fee, is expressly premised on the Tribunal having “decided the application.” The substantive application – that is, the civil claims – will have been determined before the Tribunal’s power to order the filing fee crystallises.
[4] Legislation Act 2001 section 140
[5] Albeit a narrow one – see CIC Australia Ltd v ACT Planning and Land Authority & Ors [2013] ACTSC 96
25.Secondly, in working out the meaning of an Act, an interpretation of a provision that would best achieve the legislative purpose is to be preferred.[6] Section 48 is inelegantly worded[7], but on any view, the intention was to prescribe when the Tribunal could order that a party pay the filing fee of the application, and other ‘costs’, or ‘reasonable costs’ of the application. While the term ‘costs’ is not defined in the ACAT Act, its meaning is not contentious. For example, it was considered in In the Matter of Ruling Tribunal Section 31 of the Unit Titles (Management) Act 2011 [2017] ACAT 56 (the Ruling Tribunal decision) at [89] as follows:
Consistently with the approach taken by the Tribunal in Richardson, we have concluded that the word ‘costs’ in section 48 should be given its ordinary and natural meaning and should not be limited to legal professional costs and disbursements.
[6] Legislation Act 2001 section 139
[7] See CIC Australia Ltd v ACT Planning and Land Authority & Ors [2013] ACTSC 96 at [77]-[82]
26.The ‘ordinary and natural’ meaning of costs, as per the Macquarie Dictionary, is:
noun 1. the price paid to acquire, produce, accomplish, or maintain anything: the cost of a new car is very high.
…
3. (plural) Law the sums which the successful party is usually entitled to recover for reimbursement of particular expenses incurred in the litigation.
27.In other words, costs are not a part of the substantive claim, but ‘reimbursement’ for the costs of bringing it. There is nothing in the text or the context to suggest that the exceptions in sections 48(1) and (2) of the ACAT Act are subject, in civil matters, to the jurisdictional limitation section 17 and 18 of that Act. Indeed to read the costs provisions in such a manner would be contrary to the clear intention that they be separate to the claim, but a consequence of it. It would make it impossible, for example, for the Tribunal to award costs under section 48 in a matter where a party caused unreasonable delay or obstruction before or during the proceeding, if doing so would put the totality of the claim above $25,000. That is unlikely to have been the legislature’s intention, as it would undermine the usefulness of costs as a means to protect parties from unreasonable behaviour in larger matters.
28.It is worth noting that the costs power in section 48 of the ACAT Act may be contrasted with, for example, the power to award legal expenses under section 31 of the Unit Titles (Management) Act 2011 (the UTM Act). Section 31 of the UTM Act provides, in effect, that certain costs incurred in the recovery of unpaid unit titles levies may be recoverable as a ‘debt’. In the Ruling Tribunal decision, the Ruling Tribunal determined that section 31 of the UTM Act permitted owners corporations to recover reasonably incurred legal costs and disbursements as ‘debts’ in the Tribunal’s civil jurisdiction. However, while this clause permits legal expenses to be claimed as a ‘debt’, that debt is the substantive claim and, for that reason, is subject to the usual $25,000 jurisdictional limitation on civil claims.
29.Similarly, in Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn as Trustees for St Mary Mackillop College Canberra v Kenningham [2017] ACAT 97, Presidential Member Symons determined that ACAT can award reasonable legal costs in matters where a contract provides for the payment of legal costs from one party to another. Again, however, the contract operates so as to make the ‘costs’ claimed part of the debt, and therefore part of the substantive action, so the $25,000 jurisdictional limitation would generally apply (although costs may also be claimed under section 48 in certain circumstances).
30.In summary, therefore, the applicant is entitled to claim up to the Tribunal’s jurisdictional limit of $25,000, plus interest. If the applicant is successful, the Tribunal may also order that the respondent pay (or reimburse) the application fee.
31.Ultimately, however, this issue is unlikely to arise in this matter in any practical way, because even in the event that the applicants are awarded the full damages claimed, and the application fee, their claim will only total $25,000 plus interest, which for reasons set out above, may be ordered pursuant to section 19 of the ACAT Act in addition to the substantive claim.
Decision
32.The application for interim orders is dismissed.
33.The matter is referred to a Conference and Evaluation on Friday 5 October 2018 at 10:00am.
………………………………..
Senior Member H Robinson
HEARING DETAILS
FILE NUMBER:
XD 800/2018
PARTIES, APPLICANTS:
Kavita Verma
William Rees
PARTIES, RESPONDENT:
Patrick Leo Reynolds
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member H Robinson
DATES OF HEARING:
22 August 2018
ANNEXURE
RE: Kavitra Verma v Patrick Leo Reynalds
1. Senior Member H Robinson on 31 July 2018 in chambers ordered Patrick Leo Reynolds file with ACAT registry and give to the applicant any material to be relied upon at the jurisdictional hearing. Including a brief submission setting out the basis for the objection by Friday 10 August 2018.
2. It is accepted practice for the Tribunal that submitting material on or before 5pm on the date ordered by email is equivalent as lodged.
3. 3/8/2018, Senior Member H Robinson declared herself as a Lawyer, that she does every day; without consent of the parties, accept claims above the Jurisdictional limit prescribed in the Magistrates Court Act 1930 (Eff 26/4/18) Chapter 4 Part 4.2 Section266A (1) (b) prescribed statutory limit $25,000.00.
a. The basis declared by Senior Member to allow ACAT to ignore the Lack of consent of the Parties to extend the Jurisdictional limit, is that ACT Civil and Administrative Tribunal Act 2008 (Eff 17/6/18), Part 5 Division 5.5 Section 48 prescribes: in judgement the Tribunal can order the claimed costs of the Application submitted in the Claim above the jurisdictional limits "unless the Tribunal orders otherwise in deciding the matter". That was not formed in an appealable order or formed as an appealable decision. In any respects it is respectfully rejected.
b. If such a determination is scribed in a order form or direction the Respondent sincerely advises ACAT any such order is formally on notice of APPEAL “within time”.
4. ACT Civil and Administrative Tribunal Act 2008 (Eff 17/6/18), Part 4 Section 18 (1) Scribes an Application can not be made to the Tribunal for an amount greater than the tribunal's Jurisdictional limit unless an amount is abandoned or by agreement of parties concerned.
5. The Respondent has clearly and formally scribed NO AGREEMENT to extend the jurisdictional limit in any ACTCAT matter.
6.ACT Civil and Administrative Tribunal Act 2008 (Eff 17/6/18), Part 4 Section 19 scribes:
(1)(a) a claim for interest; and (b) a claim for a lump sum instead of interest; is not included in the Jurisdictional limit on a claim: and
(2)(a) value of the goods and services.
7. Magistrates Court Act 1930 (Eff 26/4/18) Chapter 4 Part 4.2 Section 259 Rules of equity to prevail: If there is a conflict between the rules of equity and common law, the rules of equity prevail.
8. Magistrates Court Act 1930 (Eff 26/4/18) Chapter 4 Part 4.2 Section 261
Disputed debts ACAT can determine:
(1)(a) a person is or is not indebted to someone else; or
(b)a person is or is not indebted to someone else in a stated amount; or
(c)a person is or is not indebted to someone else in an amount that is more than the stated amount.
9. If there is a conflict between the rules of equity and common law, the rules of equity apply Magistrates Court Act 1930 (Eff 26/4/18) Chapter 4 Part 4.2 Section 266A (1) (b)
10. On the 20th June 2017 a contract, that determines any possible action between the parties was formed between the Respondent and Will and Kavita Rees [address]
11. On the 20th June 2018 Kavita “Verma” filed a Civil Dispute Application 800/2018 in ACAT. That was disputed in its entirety.
12. Magistrates Court Act 1930 (Eff26/4/18) Chapter 4 Part 4.2 Section 260 prescribes the capacity to hear and decide civil action for Nuisance
13. The ACAT application 800/2018 filed 20th June 2018 is a Nuisance with NO Jurisdictional basis and filed by a person “claiming to be employed by the Department of Health as a solicitor”. The Respondent respectfully submits the defective application is formed in a manner to intentional mislead and deceive the tribunal in the substantive matters in any possible valid dispute between the proper parties..
14. The Respondent again formally “does NOT agree to extend the jurisdiction limit of ACAT.
Orders Sought in the hearing dated Wednesday 22 August 2018 at 1.00pm:
15. If the Applicant accepts she miss represented her self as Rees in the entering of a contract with the Respondent; and now concedes the documented contract the amount claimed, as per equity to allow fair crack of the whip to Will, must be reduced to $12,500.00, further
An Order: Will Rees joined as a co - respondent.
Submission to substantiate this order:
As per email sent 21/12/2017 by Will read: “Kavita has also asked that all dialogue is directed to me.” The Respondent has no reasonable idea of the claim or any real knowledge of the “arrangements” or “information” or “disclosure” or communications between Kavita and Will in the matter at hand. in the alternative;
16. The Applicant is formally amended by ACAT to read Kavita Rees (formally Verma) & Will Rees; in alternative, alternative;
17. The application is dismissed by ACAT for abuse of process;
And, the Respondent is awarded costs; in the alternative, alternative, alternative:
18. The application is dismissed by ACAT as Nuisance;
And, the Respondent is awarded costs; in the alternative, alternative, alternative, alternative:
19. The Applicant is formally allowed to stand by ACAT to read Kavita Verma, after formal written disclosure by the Applicant that she did intentionally represent her self as Rees a Joint Applicant in the contractual relationship between Patrick Reynolds and Will Rees.
ACATA formally reduce the claim to the jurisdictional limit as per equity to allow fair crack of the whip to Will this must be reduced to $12500.00; in the alternative, alternative, alternative, alternative, alternative:
ACAT formally provide an opportunity to Will Rees to file an application to be Joined as Applicant and formally advise Mr Will Rees that NO FURTHER CLAIM WILL BE PROVIDED FOR IN RELATION TO THYESE
MATTERS IF HE ALLOWS Ms Verma to claim the total limit to ACAT's jurisdictional limit. This must be attended by ACAT to provide the Respondent equal and fair Judicial proceedings in a matter as per the rules of equity. in the alternative, alternative, alternative, alternative, alternative, alternative:
20. Any other orders ACAT member considers reasonable and fair.
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