Removal of the proceedings to the NCAT
75As noted, Mr Biber submitted that these proceedings should be transferred to the NCAT pursuant to s 75 of the RLA which provides:
"75 Removal of court proceedings to the Tribunal
(1) If civil proceedings pending in a court involve a retail tenancy dispute, the court must on the application of any party to the proceedings transfer the proceedings (or so much of the proceedings as involve such a dispute) to the Tribunal to be dealt with as a claim under this Division, but only if the court is satisfied that:
(a) the dispute is such as may effectively be dealt with as a claim under this Division and that it is appropriate that the dispute be dealt with by the Tribunal, and
(b) the interests of justice do not require that the matter be dealt with by the court.
(2) In determining whether or not it is appropriate that a matter be dealt with by the Tribunal, a court is to have regard to the general principle that retail tenancy disputes should be dealt with by the Tribunal rather than by a court.
(3) Proceedings are taken to involve a retail tenancy dispute if any issue in dispute in the proceedings involves a liability or obligation with which a retail tenancy dispute is concerned.
(4) This section does not prevent a court from granting urgent relief of an interlocutory nature where it is in the interests of justice to do so.
(5) This section does not apply to proceedings by way of an appeal.
(6) A court may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section for the transfer of proceedings to the Tribunal to have full effect.
(7) This section applies despite anything in Schedule 4 to the Civil and Administrative Tribunal Act 2013 concerning the removal of court proceedings to the Tribunal."
76Mr Biber pointed out that having taken over the functions of the ADT, NCAT was a specialist tribunal with particular expertise in retail tenancy disputes which conducted its proceedings with informality. These considerations are reflected in the general principle enunciated in s 75(2). Mr Biber also pointed to s 60 of the Civil and Administrative Tribunal Act 2013 which provides that in proceedings before NCAT each party is to pay their own costs of the proceedings, but that the Tribunal may award costs if there are special circumstances. On this point the parties provided detailed submissions as to whether this provision was, in substance, likely to lead to a different costs outcome for the parties to a dispute over a retail tenancy, compared to the position if the matter proceeded to a hearing in this court.
77Mr Biber also complained that the manner in which the matter had proceeded in this Court had, effectively, denied his client "procedural fairness". As I understand the submission, he claimed that because this Court refused to deal with his client's Notice of Motion seeking transfer on 17 January 2014 it meant that the NCAT was forced to program a case which it had no jurisdiction to determine. Again, as I understand the contention, it was said that this meant that any resistance by Anka to the NCAT hearing the matter was always going to have the effect of avoiding a hearing date in the NCAT and make it inevitable that the matter would remain in this Court.
78I have recounted what occurred when this matter was listed before me on 24 January 2014. As at that date the position was that the tentative hearing date that had been offered by the NCAT was no longer available. As between the two bodies it then appeared that a hearing date was first available in this Court.
79It must be remembered that the competing positions of the parties was that Anka needed possession to fit out the premises to open the showroom by 1 March 2014, and Ms Sahyoun was seeking to resist vacating until that time. It thus appeared that, unless a hearing date was allocated very quickly, then Anka would effectively lose its case without being heard on its merits. In those circumstances it was simply not in the interests of justice for a party to be deprived of a fair hearing of its case by the effluxion of time, even if that meant there was a different cost regime operating in one jurisdiction compared to another.
80In light of that conclusion, I am not obliged to transfer the proceedings, and I decline to do so. In circumstances where, as at 24 January 2014, this Court could offer the parties the earlier hearing compared with the NCAT, then that consideration warranted the matter remaining here.
81Further, I reject Mr Biber's submission that what occurred involved some form of denial of procedural fairness to his client. There is nothing to suggest that anything this Court did on 17 January 2014 operated to deprive his client of any right to be heard. Further, it must be recalled that it was always open to his client to commence proceedings in the NCAT prior to Anka commencing proceedings in this Court. Had she done so, Ms Sahyoun would have had the "benefit" of s 76(1), if that is the correct description of the operation of that provision.
82For reasons beyond the NCAT'S control, it could not provide a hearing date earlier than this Court could. As noted, it is true that the NCAT offered a tentative hearing date of 24 January 2014. However, as I have stated, Ms Sahyoun had submitted that she was not ready for a hearing in this Court on that very same day. Amongst other matters that had been contended, production of documents was said to be required before the hearing was commenced. It was because of that opposition that I adjourned the matter on 24 January 2014 to a hearing commencing on 30 January 2014 rather than hearing it on that very day. If Ms Sahyoun was not ready for a hearing in this Court on 24 January 2014, then it follows that she was not ready for a hearing in the NCAT on that same day.
83If follows from this that I reject Mr Biber's second point and that his client's Notice of Motion will be dismissed. In so finding I wish to make it clear that I do not mean any criticism of the NCAT in recounting the above. If there is a culprit in these events it is the wording of s 76(1) and 76(2) which operates to deny "jurisdiction" to a relevant Court or the NCAT to hear some matter, or issue, depending on which party to the dispute files proceedings first. In this case those provisions meant that, in endeavouring to assist the parties and the Court, the NCAT was forced to attempt to program a case on an indicative basis because it apparently had no "jurisdiction" to proceed with it. This meant that it could not, and did not, purport to make binding directions on the parties requiring them to prepare for a hearing.
84These provisions appear to allow the parties to play tactical games, depending on which forum they prefer and their preferred date for hearing. If the relevant jurisdictions were co-extensive, then the Courts and NCAT can be trusted to co-ordinate their respective resources to facilitate early hearings. In the ordinary course I expect this would lead to matters being heard in the NCAT rather than the Courts as contemplated by s 75(2).