Anvic Holdings v Constable & Anor

Mr A J J Thompson (Plaintiff) COUNSEL : Mr S Kerr (First Defendant) N/A (Second Defendant) Brook Worthington (Plaintiff) SOLICITORS : Colin Biggers & Paisley (First Defendant) I V Knight - Crown Solicitor - Submitting Appearance (Second Defendant) CATCHWORDS : Appeal - decision to transfer application to District Court made after conclusion of hearing on own motion - power of Tribunal - error in exercise of discretion - conscious or deliberate decision - entering into the arena uninvited. Consumer Claims Act 1998. LEGISLATION CITED : District Court Act 1973, s 145. Fair Trading Tribunal Act 1998, s 23, s 23 (1). Home Building Act 1989, s 84. Burwood Municipal Council v Harvey (1995) 86 LGERA 389. Gallo v Dawson (1990) 64 ALJR 458. CASES CITED : Gizzi v GIO of NSW (25 July 1990). House v The King (1936) 55 CLR 499. Itek Graphix Pty Limited v Elliott [2001] NSWCA 442. DECISION : See paragraph 24.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30038 of 2002 Anvic Holdings Pty Limited (Formerly Tilecraft (Aust) Pty Limited) v Robert Julian Constable & Anor

JUDGMENT 1 Master: The summons was filed on 7 may 2002. The plaintiff brings an appeal against a decision made by the second defendant on 9 April 2002. On that day, the second defendant (the Tribunal) made an order transferring an application then before it to the District Court. 2 The dispute between the plaintiff and the first defendant has had a long and bitter history (it began as an application in the Tribunal in April 1999). The history may be found in an affidavit sworn by Mr Worthington. It is unnecessary to reproduce that history in the judgment. It suffices to merely mention some of it. 3 One aspect of the dispute came before me on 23 May 2001. I delivered judgment on 30 May 2001 and set aside certain orders made by the Tribunal. 4 On 3 October 2001, the Chairperson granted a re-hearing of the application. 5 The re-hearing took place on 14 March 2002 before Tribunal Member Durie. The first defendant was the applicant. The plaintiff was the respondent to the application. It made certain admissions which reduced to one issue what was then in dispute before the Tribunal. Further, it offered to pay the sum of $25,000. 6 The first defendant had brought a building claim in the sum of $66,659. The claim involved the cost of replacement of terra cotta tiles sold to him by the plaintiff. The plaintiff contends that the claim was not a building claim within the meaning of s 84 of the Home Building Act 1989 and that it could only be determined as a consumer claim pursuant to the Consumer Claims Act 1998. Under that Act the jurisdiction of the Tribunal was limited to $25,000. It has unlimited jurisdiction under the Home Building Act. 7 The matter left in issue before the Tribunal was whether the claim was a building claim or a consumer claim. It was an issue that had been raised at an early stage. The hearing of this issue was completed and the decision of the Tribunal was reserved. 8 After the conclusion of the re-hearing (some time later on the same day), the Tribunal Member brought the parties before him and raised the question of transferring the matter to the District Court pursuant to s 23 of the Fair Trading Tribunal Act 1998. Subsequently, submissions were made to him on this question. A transfer was opposed by the plaintiff. The first defendant took the stance of not opposing it. On 9 April 2002, the Tribunal made the order earlier referred to on its own motion. The written reasons for the decision are in evidence. 9 For completeness, I might add that many years ago I was called on to decide an application for removal from the District Court into this Court (pursuant to s 145 of the District Court Act 1973) where the circumstances had a similarity (Gizzi v GIO of NSW (25 July 1990) ). In the judgment consideration was given to certain decided cases (dealing, inter alia, with the situation where a transfer application is made after commencement of hearing). 10 The Tribunal Member did not resolve the question of whether or not the claim was a building claim or a consumer claim (although it might be thought that he may have reached a view on the matter). He merely determined the question of whether or not there should be a transfer to the District Court. The written reasons record what purports to be a summary of the arguments advanced by the parties on this question and the views expressed by the Tribunal Member in relation to them. 11 Section 23 (1) of the Fair Trading Tribunal Act is in the following terms:- "23. Transfer of proceedings to other courts or tribunals (1) If all the parties so agree or the Tribunal of its own motion or on the application of a party so directs, proceedings instituted in or before the Tribunal must be transferred, in accordance with the rules of that court, to a court that has jurisdiction in the matter and are to continue before that court as if they had been instituted there."

The language used in s 145 is somewhat different. 12 Section 23 would seem to confer a discretionary power upon the Tribunal to give a direction inter alia of its own motion. If a direction is given, the proceedings must be transferred and thereafter they "are to continue before that court as if they had been instituted there". 13 It is a power to be exercised having regard to all of the relevant circumstances of the particular case before it and so that justice is best served between the parties. The party seeking the direction bears the onus. 14 It is common ground that the plaintiff can only obtain relief if an error of law is demonstrated. Further, it must be an error of law which justifies a disturbing of the decision of the Tribunal. 15 Broadly speaking, the plaintiff levels three areas of attack against the decision. Firstly, it was said that the decision was made at a time when the Tribunal had no power to give the direction. Secondly, it was said that if there was power, the discretion was wrongly exercised. In support of this submission, the court was referred to House v The King (1936) 55 CLR 499. Thirdly, it was said that the Tribunal was not fair to all parties and chose to descend into the arena uninvited. In support of this submission, the court was referred to Burwood Municipal Council v Harvey (1995) 86 LGERA 389. 16 I do not accept the first submission. I consider that the Tribunal retained power to give the direction at the time of the making of the decision. Although the hearing had been concluded, the application had not been determined.

17 Whether or not the power should be exercised in circumstances where there is a lack of positive support from any party is a different question. Clearly, there will be cases where it is proper to do so. Each case needs to be considered in the light of its own individual circumstances. However, generally speaking a lack of positive support from the parties may call for caution in the exercise of the power. 18 In relation to the second submission, it needs to be appreciated that House is an authority on the manner in which an appeal against an exercise of discretion should be determined. It is not enough for the Appellate Court to act on the basis that it would have taken a different view. It must appear that some error (as opposed to error of law) has been made in exercising the discretion. 19 In the circumstances of this case, I am satisfied that there has been error in the exercise of the discretion. It has produced a result that is unjust. Without seeking to be exhaustive, it can be said that there were material considerations which the Tribunal Member did not take into account in reaching the decision. It suffices to merely mention a couple of them. Whilst he addressed the matter of the choice of forum by the first defendant he appears to have rejected it as a material consideration (see paragraph 12 of the reasons). In my view, both the choice of forum and the subsequent conduct of the first defendant were material matters of weight. Conscious or deliberate decisions can be matters of weight (see inter alia Gallo v Dawson (1990) 64 ALJR 458 at 459 and Itek Graphix Pty Limited v Elliott [2001] NSWCA 442 - although these cases concerned extension of time applications, the principles have general application to cases involving the exercise of a discretion). The Tribunal Member did not accept the arguments put as to prejudice. In my view, a transfer to the District Court may lead the plaintiff to suffer actual prejudice. Generally speaking, it may be said that the Tribunal appears to have focused on the first defendant's problems rather than take into account the potential prejudice to both parties in the light of the other material considerations. 20 This is a case where the first defendant selected the Tribunal as the forum in which to bring his claim. Further, he chose to bring that claim as a building claim. Although the issue as to whether or not it was a building claim was raised at an early stage, he continued to prosecute the claim in the Tribunal. In so doing, he had the benefit of legal advice. The said issue was the only one ultimately litigated in the rehearing. The question of transfer only arose (on the motion of the Tribunal) at a late stage in a lengthy and bitterly fought dispute when the legal costs could be expected to have reached a stage where they were grossly disproportionate to what was in dispute. On the one hand, if the application is not transferred to the District Court, the first defendant is at risk of recovering only $25,000. On the other hand, the giving of the direction may see the plaintiff lose a defence to a part of the claim. If the first defendant were to now discontinue and seek to bring fresh proceedings in the District Court, he may be met with a good limitation defence. This defence cannot be relied on by the plaintiff if the proceedings are transferred. If the proceedings are transferred to the District Court, the issue which the parties chose to fight in the rehearing before the Tribunal ceases to be of significance, the rehearing becomes an abortive exercise and the parties may be put to the trouble and expense of a further or fresh hearing (in which the plaintiff may seek to withdraw admissions). It is in the interests of the parties that the dispute be brought to an end as expeditiously as possible. 21 In my view errors of law have been demonstrated and the errors justify a disturbing of the decision. I am satisfied that the decision should be set aside. 22 In the circumstances, it is unnecessary to dwell on the third submission. However, it can be said that the Tribunal did enter into the arena uninvited (on a matter which would only assist the first defendant) and it gave a direction of its own motion (without positive support from any party) after the conclusion of the hearing. Further, it can be said that the parties were given an opportunity to be heard and that their submissions were considered. 23 The plaintiff has sought inter alia a permanent stay of the proceedings. In the circumstances of this case I am not satisfied that such an order is appropriate. 24 I order that the decision of the Tribunal made on 9 April 2002 be set aside. Further, I order that the application be remitted back to the Tribunal for determination in accordance with law. The first defendant is to pay the costs of the proceedings.

Last Modified: 08/28/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.