Helen Scaife v Angela Coceanig

Judgment 1By Notice of Motion filed on 16 September 2011 the defendant in these proceedings sought orders dismissing the appeal commenced by the plaintiff on 18 May 2011. In the alternative she applied to have the appeal consolidated with the substantive proceedings that have now been transferred to the District Court of New South Wales for determination. 2A short chronology will assist in understanding the background to the application. On 27 November 2009 the defendant lodged a claim in the Consumer Trader and Tenancy Tribunal for damages in respect of alleged defects in residential building work undertaken by the plaintiff as an owner/builder. On 13 July 2010 the plaintiff applied for summary dismissal of the claim on the ground that it was made more than seven years after completion of the residential building work to which the claim related. This application was heard on 20 October 2010 and 2 February 2011 and determined contrary to the plaintiff on 18 May 2011. On 18 June 2011 the plaintiff filed the summons commencing an appeal against that decision. On 18 July 2011 the defendant applied to transfer the proceedings to the District Court on the grounds that the damages claimed exceeded the limit of the Tribunal's jurisdiction. On 20 July 2011 the application to transfer the proceedings was determined in favour of the defendant. On 19 September 2011 the Tribunal, after considering the written submissions of the parties ordered the plaintiff to pay the defendant's costs of the unsuccessful application for summary dismissal. 3The transfer of the proceedings was effected pursuant to s 23(1) of the Consumer Trader and Tenancy Tribunal Act 2001 that provides: (1)If the parties in any Tribunal proceedings so agree, or if the Tribunal of its own motion or on the application of a party so directs, the proceedings are: (a)to be transferred to a court (in accordance with the rules of that court) that has jurisdiction in the matter, and (b)to continue before that court as if they had been instituted there. 4The defendant in her written submissions proposed that there were two alternative constructions that might be applied to the operation of s 23(1)(b), namely: (a)By requiring the Substantive Proceedings to be regarded as having been instituted in this Honourable Court on 27 November 2009 (being the date the originating application was filed in the Tribunal) (the Preferred Construction ); or (b)By requiring the Substantive Proceedings to be regarded as having been instituted in the District Court only as from the date of the Transfer Order (the Alternative Construction ). 5The effect of the defendant's preferred construction was that s 23(1)(b) had retrospective operation so that all interlocutory directions and decisions to the point of transfer should be deemed, through a legal fiction, to have been made by the District Court. 6The consequence, it was argued, was that the appeal against the decision of the Tribunal was transformed, upon transfer of the proceedings to this Court, into an appeal against a decision of this Court. The defendant pointed out that there was no statutory basis for such an appeal. 7The acceptance of these submissions would result in a number of prejudicial consequences to the plaintiff: (1)she would lose her right to appeal the Tribunal's decision; (2)alternatively, her appeal rights would be found in s 127 of the District Court Act 1973 so that the Court of Appeal would be the body charged with consideration of the question of law said to arise out of the Tribunal's decision; (3)alternatively, the plaintiff would be required to re-argue the jurisdictional issue before the District Court and, potentially, face objection based on the principles established in Brimaud v Honeysett Instant Print Pty Ltd (McLelland J, 19.9.1988) so that she would be required to point to a material change in circumstances or new evidence that could not reasonably have been placed before the Tribunal on the original application. 8I did not accept that either the preferred or the alternative construction correctly represented the manner in which the section was to operate. 9I concluded that the words to continue in s 23(1)(b) were intended to provide for the future or ongoing conduct of proceedings in accordance with the procedures and rules of the court to which they were transferred from the date of their transfer. Such a construction would avoid the requirement to rely on a legal fiction and protect the plaintiff from the prejudicial consequences that I have outlined. 10This construction of s 23(1)(b) was capable to responding to the submissions put forward by the defendant in support of her application. 11It gave meaning and effect to the words of the section by indicating the basis on which the court of transfer was to deal with the proceedings, namely, to continue them by the application of its procedures and rules from the date of transfer. The absence of the words to continue would lead to ambiguity concerning the point at which the procedures and rules of the court of transfer were to apply. 12Provision was made in s 23(2) of the Consumer Trader and Tenancy Act 2001 for transfer of proceedings from the District Court to the Tribunal. 13S 23(2)(b) required that transferred proceedings were to continue before the Tribunal as if the proceedings had been instituted in the Tribunal. 14If the defendant's preferred construction were adopted in proceedings transferred by the District Court to the Tribunal, the result would be that a decision of the District Court prior to transfer would be deemed to be a decision of the Tribunal and therefore appellable under s 67 of the Consumer Trader and Tenancy Act to the District Court. The anomalies created by this approach are obvious. One of the consequences could be that on hearing the appeal the District Court could remit to the Tribunal for redetermination according to law an issue that was not initially decided by the Tribunal. 15A requirement that proceedings be continued avoided the necessity to discontinue the Tribunal proceedings and commence fresh proceedings in the court of transfer, thus avoiding the risk that, through delay, proceedings could become statute barred. 16I did not accept that a construction of s 23(1)(b) that created a legal fiction and then created anomalies in the practical application of the legislation could be said to achieve a result that produces the greatest harmony and the least inconsistency: Australian Alliance Assurance Co Ltd v Attorney-General (Qld) [1916] St R Qd 135 at 161. 17I did not accept that the authorities relied on by the defendant assisted in the determination of the proper construction of the provision. The issue in Ebberstein v Kanijan [2009] NSWSC 1185 was whether, in continuing proceedings after transfer, the District Court had jurisdiction to exercise the powers conferred on the Tribunal by the Residential Tenancies Act 1987. 18I understood the effect of Harrison AsJ's decision to be that, in providing for the transfer of proceedings arising under the Residential Tenancies Act from the Tribunal to the District Court, the Consumer Trader and Tenancy Tribunal Act also provided for the transfer of the jurisdiction conferred on the Tribunal under that Act. 19The decision in Wright v Foresight Constructions Pty Ltd (Home Building) [2010] NSWCTTT 147 concerned the date of commencement of proceedings transferred from the District Court to the Tribunal. Tribunal Member Durie determined that it was the date of commencement of proceedings in the District Court so that the proceedings were commenced within the time limited by s 48K of the Home Building Act 1989 . His reasoning was consistent with my view that transferred proceedings are continued and not recommenced upon transfer. 20The result was that the plaintiff remained entitled to pursue the appeal rights that arose prior to the transfer of the proceedings to the District Court. If the appeal succeeds it will be a matter for the Court to decide which of the options provided for in s 67(3) of the Consumer Trader and Tenancy Act should be adopted. In the event that it is considered necessary to direct that the plaintiff's application be reheard, the rehearing will, by virtue of the transfer, take place in the District Court. 21As an alternative, the defendant applied to have the appeal heard at the same time as the substantive proceedings. She claimed that the appeal involved questions of fact that might overlap with facts to be found in the substantive proceedings and relied on Wardley Australia Limited v State of WA (1992) 175 CLR 514 where the High Court commented on the undesirability of deciding limitation issues in interlocutory actions in advance of the hearing of substantive action. 22I am aware that similar concerns have been expressed by appellate courts on other occasions, most recently by the Court of Appeal in Bailey & Anor v Owners Corporation of Strata Plan 62666 [2011] NSWCA 293 where Justice Basten at [10] said: As explained by Sackville AJA, the jurisdictional issue, which in effect involved the operation of a limitation period, could not satisfactorily be decided without a consideration of the factual issues going to the merits of the claims. The undesirability of such matters being addressed as a preliminary question, thereby inviting an interlocutory appeal and possible review in this Court, must now be apparent. 23An alternative view, however, has been expressed by the Court of Appeal in dealing with the question of whether appeals against interlocutory orders should be deferred and dealt with in an appeal from a final judgment. In Tamworth Base Hospital & Anor v Durant [2000] NSWCA 209 Justice Handley, referring to Ramton v Cassin (1995) 38 NSWLR 88, said that an erroneous interlocutory order that allowed proceedings to be commenced or continued should, if possible, be corrected before trial and that it was important to distinguish between an appeal which, if successful, would save the parties the cost of a trial and save court time and one that would not avoid a trial. 24Justice Ipp, in Itex Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104, agreed. He referred to the Court's decision in Kessey v Golledge (1999) 30 MVR 95, where Justice Rolfe said: Thus a very real issue is raised, in my opinion, whether a refusal by this court, in the exercise of its discretion, to hear such an application prior to the substantive hearing is an appropriate approach and leads to an efficient expenditure of the court's judicial resources and time and the parties' time and money. 25In this case the claim was substantial. The amount claimed in damages was $735,000 in respect of a number of alleged defects in residential building works. My experience in these matters indicated that many thousands of dollars would be expended in dealing with these claims in proceedings that might ultimately be determined to be statute barred. 26I am compelled by s 56 of the Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of the real issues in the dispute . The appeal, if it succeeds will result in the termination of the substantive proceedings, thus avoiding the high cost of those proceedings. 27I accepted that the determination of the limitation issue prior to the hearing of the substantive proceedings would not be ideal. However, it will be the plaintiff's responsibility on the appeal to persuade the Court that she discharged the onus in the Tribunal of proving the facts necessary to establish that it lacked jurisdiction to hear the defendant's claim: Bailey, Sackville AJA at [70] and [76]. 28I am satisfied therefore that the appeal should proceed, as listed, on 292 November 2011.