Flatt v Consumer Trader & Tenancy Tribunal & Anor [2006] NSWSC 24 | Case summary

JUDGMENT 1 His Honour: The plaintiff brought an appeal against a decision of the Consumer Trader & Tenancy Tribunal (the Tribunal). The Tribunal was named as the first defendant. The successful party before the Tribunal was named as second defendant. 2 The plaintiff came to a decision that there should be a discontinuance of the proceedings. The proceedings were then being case managed and appearing in the Registrar's list (which was then being conducted by Registrar Whitehead). 3 On 19 February 2003, the matter came before Registrar Whitehead. Mr Bilinsky (solicitor) appeared for the plaintiff. There was no appearance for the second defendant. Mr Bilinsky made an application for leave to discontinue the proceedings and the Registrar granted that relief. No costs order was made. Mr Bilinsky did not seek any costs order. Subsequently, a notice of discontinuance was filed on 29 April 2003. 4 There is no explanation as to why there was no appearance on behalf of the second defendant on 19 February 2003. It has been submitted that the second defendant was unaware that an application for leave to discontinue would be made on that day. The possibility of discontinuance had been raised on an earlier occasion before Registrar Whitehead on 5 February 2003. On that day, Mr Evans of counsel had appeared for the second defendant. 5 At the relevant time, the entitlement to discontinuance was governed by Part 21 rule 2 of the Supreme Court Rules 1970. It is in the following terms:- 2 Discontinuance A party making a claim for relief may, before the beginning of the trial or hearing of the proceedings on the claim (but not otherwise), discontinue the proceedings so far as concerns the whole or any part of any claim for relief made by him: (a) where he or his solicitor certifies that he does not represent any other person and all other parties having an address for service in the proceedings consent, or (b) with the leave of the Court. 6 Part 52A rule 21 contained provisions concerning costs where a party discontinues without leave. The rule is in the following terms:- 21 Discontinuance Where, pursuant to Part 21 rule 2, a party to any proceedings discontinues the proceedings without leave as to the whole or any part of the relief claimed by him against any other party, the discontinuing party shall, unless: (a) the Court otherwise orders, or (b) the notice of discontinuance contains a statement under Part 21 rule 5 (3), pay the costs of the party against whom the discontinued claim is made, occasioned by the discontinued claim and incurred before service of notice of the discontinuance. 7 The notice of discontinuance did not contain the statement prescribed by that rule. Although it had been earlier the subject of submission, it is common ground that the rule has no relevance for present purposes. 8 On 5 July 2005, the second defendant filed a notice of motion. It sought the following relief:- 1. The Notice of Discontinuance filed by the Applicant be set aside. 2. The Application be dismissed. 3. The Applicant, the Respondent to this Notice of Motion, pay the costs of the Second Respondent in the proceedings, of the proceedings including this Notice of Motion on an indemnity basis. 9 The application came before Assistant Registrar Howe on 22 September 2005. What happened is recorded (see transcript). The Registrar made the following orders:- 1. Paragraphs 1 and 2 of the second defendant's notice of motion filed 5 July 2005 dismissed. 2. The plaintiff is to pay the costs of the proceedings. 3. The balance of the second defendant's notice of motion dismissed. 4. Each party bear their own costs of this application. 10 On 19 October 2005, the plaintiff filed a notice of motion. It seeks the following orders:- 1. The order as to costs made by Assistant Registrar Howe on 22 September 2005 be set aside. 2. The Notice of Motion filed on 5 July 2005 be dismissed. 3. The Second Respondent pay the costs of the Applicant to the Notice of Motion filed on 5 July 2005 and the costs of this Notice of Motion. 11 The notice of motion came on for hearing on 2 February 2006. Mr Marshall of counsel appeared for the plaintiff and Mr Evans of counsel appeared for the second defendant. 12 The plaintiff seeks relief pursuant to Part 45 of the Uniform Civil Procedure Rules 2005. It provides the regime now applicable for the review of a decision by a Registrar. Changes have been made in the process for the challenging of a decision by a Registrar. 13 In Thomas v State of New South Wales [2005] NSWSC 1061, I made the following observations:- 12. The procedure for applications for review of decisions of a Registrar (other than a Judicial Registrar) may be found in Rule 45. These provisions are significantly different to their predecessors (see Part 61 rule 3 of the Supreme Court Rules 1970). Whilst the rule still speaks of a "review" of a decision of a Registrar, it also uses the term "appeal". The rule introduces changes to the procedure that had existed under the former regime. The rules speak of the institution of an appeal. The notice of motion must set out the grounds relied on in support of the application. Provision is made for the filing of a notice of contention. There are new provisions concerning evidence (Rule 45.23). It is expressly provided that an application does not operate as a stay of the decision of the Registrar. 13. Whilst the use of the language of both "review" and "appeal" may be thought to be confusing, presumably the intention is for a review of a decision of a Registrar to take on at least certain of the trappings of an appeal. This would seem to be consistent with the changes that have taken place over the years. 14. Many of the earlier decisions concerning such a review were made when the functions of a registrar were at least largely administrative. Since that time, the jurisdiction that may be entertained by a Registrar has significantly increased. These days, a Registrar may entertain much of the jurisdiction that was exercised by the former Masters. An exercise of the referral power can confer the jurisdiction entertained by an Associate Justice. 14 It would seem that the new provisions may have dealt a final blow to some of the old decisions concerning what (if anything) had to be demonstrated to justify a disturbance of a decision made by a Registrar. As the new procedure requires the setting out of grounds, it would seem that it is now incumbent upon an applicant to make out a ground as a requirement of obtaining relief. 15 In this application, such aspect of the matter was the subject of little argument. However, Mr Marshall proceeded on the basis that he could demonstrate error. 16 Mr Marshall has provided the court with a written outline of submissions. These submissions were supplemented by oral argument. I shall now proceed to deal with what I understand to be the grounds of attack on the decision of Assistant Registrar Howe (although the notice of motion purported to specify the grounds relied on, it could not be said to comply with the rule). 17 Before doing so, I should mention that there is now no challenge to the validity of the leave to discontinue granted by Registrar Whitehead. 18 One contention suggests that because there was a silence on the question of costs, the view could be taken that a decision had been made on the question by Registrar Whitehead. I consider that any such contention is lacking in substance. 19 Little is known as to what happened before Registrar Whitehead on 19 February 2003. Presumably, there was no transcript and there is limited recollection on the part of Mr Bilinsky as to what took place. 20 Mr Bilinsky has sworn an affidavit on 1 February 2006 (shortly before the date of hearing of the review and thus not before Assistant Registrar Howe). What is said by Mr Bilinsky as to that occasion appears in paragraph 6 of his affidavit. The content of that paragraph concedes that Registrar Whitehead did not make any costs order and it provides the information that Mr Bilinsky did not seek any costs orders. 21 The affidavit does not explain why he did not seek a costs order. It does not inform the court as to whether any discussion took place concerning the matter of costs. It may be that the question was not raised because there was no appearance by the second defendant. 22 When it is proposed to deal with the question of costs by not making any order, the court practice is often to record that no order for costs is being made. No such matter appears on the record of proceedings. 23 In my view, the conclusion that should be drawn from what happened on 19 February 2003 is that the Registrar did not deal with the question of costs. Accordingly, it was open to Assistant Registrar Howe to deal with the question of costs on 22 September 2005. 24 There seems to be no issue that the Registrar was entitled to dismiss the claims for relief made in prayers 1 and 2 of the notice of motion filed on 5 July 2005. The plaintiff regards these prayers as being misconceived and doomed to failure. The second defendant looked to them as machinery provisions (which were ultimately unnecessary) relevant to what it says was the substantive claim for relief (the claim for the costs of the proceedings sought in paragraph 3 of that notice of motion). 25 It seems to be contended that Assistant Registrar Howe acted on his own initiative and made the order for costs of the proceedings ("without being asked"). It was somewhat faintly contended that the plaintiff was unaware that such an order was being sought by the second defendant. I do not accept such contentions. 26 In my view, prayer 3 of the notice of motion makes it clear that the plaintiff was seeking the costs of the proceedings and the costs of the notice of motion. The seeking of costs on an indemnity basis does not seem to me to have to have the significance which the plaintiff seeks to attach to it. 27 I should add that neither party contests the decision made by the Registrar in dismissing the application for indemnity costs. 28 A period of over two years elapsed between the decision of Registrar Whitehead and the bringing of the notice of motion. This delay and the lack of explanation for it has been raised as a matter that should have been taken into account when considering the issues raised by the notice of motion. It is conceded that these matters were not raised before the Registrar, and in my view, the plaintiff should not be allowed to raise them in this review. In any event, I do not consider that these matters assist the plaintiff in the review. 29 I am not satisfied that any ground has been demonstrated for the disturbing of the decisions made by the Registrar on 22 September 2005. In my view, he reached a result that was reasonably open to him on the material that he had. I see no error in the exercise of discretion. 30 Usually, a discontinuing party is the party that bears the costs when that party seeks to discontinue the proceedings. The general rule is that costs follow the event unless it appears to the court that some other order should be made. There is nothing to suggest that this costs question should have been otherwise dealt with. 31 The notice of motion sought three prayers for relief. The second defendant failed in her application for the relief claimed in prayers 1 and 2. She was successful in obtaining an order for the costs of the proceedings (as claimed in prayer 3). The making of this order represented a significant success for the second defendant in the application. 32 In the circumstances, an order that each party bear his or her own costs of the notice of motion accords with the dictates of justice. Although he protests that it was not so, it was a result that may have been thought to have been conceded as being fair by Mr Marshall (Tr 22 Sep 2005 p5 11). 33 The notice of motion filed on 19 October 2005 is dismissed. The plaintiff is to pay the costs of that notice of motion. **********

Flatt v Consumer Trader & Tenancy Tribunal & Anor

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