In the application of the ACT Civil Administrative Tribunal v Abbey and Mack [2010] ACTSC 140

2. The questions of law arise from the following circumstances. An applicant instituted proceedings in ACAT seeking possession of a broodmare which has an acknowledged value of approximately $80,000. A jurisdictional limit is provided in s 18 of the ACAT Act prohibiting civil dispute applications for more than $10,000 from being instituted in ACAT. Such application raises the question whether ACAT has jurisdiction to hear an application for goods, where the value of the goods is in excess of the jurisdictional limit of ACAT.

3. On 22 February 2010, Senior Member J Lennard of ACAT, as the initiating party, made the following orders:

1. The ACT Civil and Administrative Tribunal refers to the Supreme Court of the ACT the question of its jurisdiction in relation to goods applications, where the goods application is for transfer of possession of goods, not an application for payment of money, declaration of debt or damages, and the value of the goods exceeds the ACT Civil and Administrative Tribunal's jurisdictional limit of $10,00.00. This referral is made pursuant to Section 84 of the ACT Civil and Administrative Tribunal Act 2008 (ACT).
2. Consideration of the application for costs is adjourned to a date to be determined.

4. Following the referral of the above question, ACAT made orders on 6 April 2010, 5 May 2010 and 12 May 2010 restraining disposition of the broodmare by the party in current possession. Since the issue of ACAT's jurisdiction to hear the claim before it also raised the question of ACAT's jurisdiction to make such orders, Senior Member Lennard, by amended special case filed 21 July 2010, referred the following question to the Court for determination:

1. Whether the monetary limits in section 18 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) ("The Act") apply to an application for the delivery or return of possession of a good or goods.
2. Whether the injunction orders of 6th April 2010, 5th May 2010 and 12th May 2010 can be granted by the Tribunal as a result of Senior Member Lennard's referral to the Supreme Court.

5. The Court is required to determine the questions raised by the amended special case.

6. ACAT was established by the ACAT Act. The preamble to the ACAT Act states that it is:

An Act to establish the ACT Civil and Administrative Tribunal to resolve issues arising under certain legislation, and for other purposes

7. An application was made to ACAT by Gerald Alexander Abbey ('Abbey'). Abbey claimed to be entitled to possession of the broodmare known as 'The Banchee' and sought an order for its delivery to him. Such claim was made upon the ground that Abbey held a 90% interest in the broodmare which was said to arise pursuant to a contract entered into between Abbey and Michael and Kristine Geraghty ('the Geraghtys') on 1 October 2009.

8. The respondent to the application, Sharen Mack ('Mack'), asserts that she holds the entire interest in the broodmare. Mack alleges that prior to 2003 she held a 10% share and the Geraghtys held a 90% share but claims that pursuant to an agreement between herself and the Geraghtys on or about 23 September 2003 she became the sole owner of the broodmare. It is accepted for present purposes that the value of the broodmare is approximately $80,000.

9. In response to Abbey's claim for possession of the broodmare, Mack submitted to ACAT that it had no jurisdiction to hear the matter because the value of the broodmare exceeded the jurisdictional limits of ACAT, which are set out hereunder.

10. Section 18 of the ACAT Act relevantly provides:

(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 $10 000) allows the application to be made.

(a) civil dispute applications claiming amounts of not more than $10 000; or

(b) in relation to debt declarations - applications for declarations for debts of not more than $10 000.

11. A 'civil dispute application' is defined in s 16 as an application that consists of one or more of the following applications:

12. The term 'goods application' is defined in s 15 of the ACAT Act as follows:

'goods application' means an application in relation to the provision of goods or services, and includes an application for damages for the detention, or return, of goods.

13. Senior Member Lennard on behalf of ACAT as the initiating party provided a summation of the issue for determination ('the ACAT summation'). At the hearing before this Court both Abbey and Mack provided oral and written submissions.

14. In favour of the proposition that ACAT has jurisdiction to hear the application before it, the ACAT summation states that on the literal interpretation of s 18 of the ACAT Act it is arguable that the $10,000 limit imposed by s 18 may only apply to civil dispute applications where an amount of money is claimed. The ACAT summation also states that the purposes of the ACAT Act may be compatible with the determination of goods applications of any value.

15. The ACAT summation also provides reasons against holding that ACAT has jurisdiction in this matter, emphasising the possible absurdity in a finding that ACAT could properly determine any matter concerning possession of goods, but could only deal with an application for damages to the same goods if the amount claimed as damages was less than $10,000.

16. Abbey submits that the ACAT Act invests ACAT with broad jurisdiction and refers to s 6(a) which relevantly provides:

(a) to provide for a wide range of matters arising under legislation to be resolved by the ACT Civil and Administrative Tribunal

17. Abbey refers to the breadth of Part 4 of the ACAT Act relating to civil disputes and submits that the jurisdiction of ACAT is unlimited with regard to claims for goods, i.e. a goods application as defined in s 15 of the ACAT Act.

18. Abbey submits that Direction 84 of the ACT Civil and Administrative Directions made pursuant to s 24 of the ACAT Act identifies ACAT's jurisdiction in relation to goods. Direction 84 provided:

(1) This rule applies to a civil dispute application in relation to the detention of goods

(2) The tribunal may give judgment for the applicant against the respondent, in accordance with the applicant's claim for relief, for either-

(a) the return of the goods to the applicant, or the retention of the goods by the respondent and payment to the applicant of the value of the goods; or

(b) payment to the applicant of the value of the goods.

(3) If the Tribunal gives judgment for the return or goods, it may state a date before which the return must take place.

(4) If the tribunal gives judgment for the return of goods, but the goods are subsequently damaged, destroyed or otherwise made unavailable for return, the tribunal may, on the applicant's application, order the respondent to pay the value of the goods to the applicant.

(5) If the tribunal gives judgment under subrule (2) (a), and the applicant subsequently applies for an order under this subrule, the court may make an order for the return of the goods to the applicant without the option of the respondent retaining the goods and paying their value.

value, of the goods, means the value assessed by, or in accordance with the direction of, the court.

19. Section 18(1) prohibits a civil dispute application being made to ACAT for an amount greater than its jurisdictional limit, subject to certain exceptions which are not relevant in the present circumstances. Section 18(2) of the ACAT Act limits the jurisdiction of ACAT to 'civil dispute applications claiming amounts of not more than $10,000'. A goods application, which is a category of a civil dispute application, may not specify the value of the goods claimed.

20. Section 19 specifically anticipates that a goods application might be made in respect of goods which have a value in excess of the jurisdiction of ACAT. Section 19 provides:

(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:

(2) In working out the amount claimed, to decide whether the tribunal has jurisdiction in relation to a goods application, the following amounts are to be considered:

(b) any amount claimed for damages for the detention of the goods.

21. Section 19 of the ACAT Act accordingly provides express power to ACAT to determine the value of the goods. Clearly, the only purpose of such a provision is to enable ACAT to establish whether it has jurisdiction in respect of a goods claim. If the value of the goods was irrelevant to ACAT's jurisdiction, s 19 would be unnecessary.

22. The Court has also considered the suggested expansion of ACAT's jurisdiction by Direction 84. Direction 84 is subordinate legislation. It does not suggest that, in assessing the value of a goods claim, the statutory limit of $10,000 does not prevail.

23. Direction 84 is consistent with the framework of the ACAT Act with regard to a goods application. Direction 84(2)(a) authorises ACAT, in a goods claim, to order the return of the goods to the applicant, or their retention by the respondent 'and payment to the applicant of the value of the goods'; or pursuant to Direction 84(2)(b) 'payment to the applicant for the value of the goods'.

24. Legislation is required to be interpreted in such a manner as to give effect to the intention of Parliament and to 'harmonious goals': see Project Blue Sky Inc and Others v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [70]. The Court is required to attempt to give meaning and effect to the words used in the statute: see Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 574; Leon Fink Holdings Proprietary Limited v Australian Film Commission (1979) 141 CLR 672 at 679.

25. In Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 Gibbs J (as he then was) at 440 referred to the need to interpret statutes with a construction which will be 'harmonious'. Further, s 140 of the Legislation Act 2001 (ACT) ('the Legislation Act') requires that 'in working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole'.

26. Taking into account the provisions of ss 18 and 19 and having regard to the object of the ACAT Act, the Court finds that it would be inconsistent with the scheme of the legislation if ACAT, instead of ordering return of the goods, had jurisdiction to award an amount to be paid in excess of the monetary limit imposed by s 18 of the ACAT Act in lieu of a return of the goods. The same finding applies where the goods were destroyed or were otherwise unavailable as envisaged by Direction 84(4).

27. The jurisdictional limit determined by s 18 of the ACAT Act applies to civil dispute applications, which by definition includes goods applications. Accordingly, if a claim for detention of the goods is made and the goods claimed are assessed by ACAT to have a value exceeding $10,000, ACAT has no jurisdiction to deal with such claim.

28. Abbey submits that the jurisdiction of ACAT is extended by s 22(1) of the ACAT Act which provides:

The tribunal has, in relation to civil dispute applications, the same jurisdiction and powers as the Magistrates Court has under the Magistrates Court Act 1930, part 4.2 (Civil jurisdiction).

29. Abbey refers to s 257 of the Magistrates Court Act 1930 (ACT) ('the Magistrates Court Act') which invests that court with jurisdiction to determine any 'personal action at law' if the amount is not more than $50,000 (see s 257(1)). Section 257(3) of the Magistrates Court Act provides:

For this section, a personal action at law includes an action relating to the detention of goods, and the amount claimed in the action is the value of the goods plus any amount clamed for damages for the detention of the goods.

30. Abbey submits that the jurisdiction invested by s 257(3) expressly confers jurisdiction on the Magistrate's Court and hence on ACAT to hear and decide an action relating to the detention of goods where 'the amount claimed in the action is the value of the goods plus any amount claimed for damages for the detention of the goods'.

31. Abbey also referred to s 258(1)(a) of the Magistrates Court Act which relevantly grants jurisdiction to the Magistrates Court to grant relief as follows:

The court may grant any relief, redress or remedy that the Supreme Court may grant in a similar action in that court, and for that purpose the Magistrates Court may make any order that the Supreme Court may make;

32. Abbey submits that the combined effect of s 22 of the ACAT Act and ss 257 and 258 of the Magistrates Court Act is to grant ACAT jurisdiction to hear and determine an action in detinue for the return of specific goods where damages are not an adequate remedy, and that ss 18 and 19 of the ACAT Act are applicable only to monetary claims.

33. Section 22 of the ACAT Act is harmonious with s 18 of that Act provided s 22 is read subject to the express jurisdictional limit contained in s 18 and upon a construction where s 22 is read to import into ACAT the same types of relief which could be granted by the Magistrates Court as provided by Part 4.2 of the Magistrates Court Act.

34. If the submission of Abbey were correct, it would have the consequence that the financial limit imposed by s 18 of the ACAT Act to grant relief in respect of a civil dispute application would become otiose. Such interpretation would have the consequence that the jurisdiction of ACAT in respect of a civil dispute application would be fixed at the limit provided under the Magistrates Court Act, namely $50,000. This interpretation would frustrate the intention of the legislature to invest ACAT with the jurisdiction to determine disputes where the claim does not exceed $10,000. The Court finds that such a construction would not reflect Parliament's intention, and that Abbey's submission that ACAT's jurisdiction is extended by reference of s 22 of the ACAT Act in combination with ss 257 and 258 of the Magistrates Court Act should be rejected.

Issue 3: Effect of s 176 of the Legislation Act

35. Abbey relies upon s 176 of the Legislation Act as demonstrating that there is no jurisdictional limit on the value of goods for the purpose of a goods application. Section 176 provides:

(1) This section applies if a law, whether expressly or by implication, authorises a proceeding (whether civil or criminal) to be brought in a particular court or tribunal in relation to a matter.

(2) The law vests the court or tribunal with jurisdiction in the matter.

(3) The jurisdiction so vested is not limited by any limits to which any other jurisdiction of the court or tribunal may be subject.

Note See also s 45 which relates to the making of rules carrying out or giving effect to the jurisdiction of the court or tribunal.

36. Abbey submits that the financial limits imposed by ss 18 and 19 of the ACAT Act do not limit the exercise of ACAT's jurisdiction provided by s 176(3) of the Legislation Act.

Finding: Section 176 does not extend jurisdiction

37. Section 176 of the Legislation Act does not confer jurisdiction. Section 176(2) makes it plain that a court or tribunal is invested with jurisdiction in a matter by the law authorising the proceeding to be brought in that particular court or tribunal (see s 176(1)). Section 176(3) provides that the jurisdiction so invested by the law referred to in s 176(1) is not to be limited 'by any limits to which any other jurisdiction of the court or tribunal may be subject'. This subsection merely declares that the jurisdiction invested is not to be confined by some other provision. Accordingly the investing of jurisdiction, to the limit prescribed by s 18 of the ACAT Act, remains unaffected by any other provision.

38. It follows from the above that the limit of jurisdiction imposed by s 18 applies to a goods application as defined in s 15 of the ACAT Act, with a consequence that any goods application made in respect of goods with a value in excess of $10,000 is beyond the jurisdiction of ACAT. Since the value of the broodmare which is the subject of the present proceedings exceeds that value, ACAT has no jurisdiction in the proceedings.

39. ACAT has made three orders in the nature of restraining orders preventing the sale or other disposition of the broodmare. The amended special case questions whether ACAT had jurisdiction to make such orders.

(1) This section applies if, before the hearing of an application -

(a) a party to the application applies to the tribunal for an order under this section; and

(b) the tribunal is satisfied that, if an order under this section were not made before the hearing of the application, the party applying for the order would be disadvantaged or suffer harm.

(2) The tribunal may make any order (an interim order) it considers appropriate to protect the position of the party that applied for the order.

Note The tribunal must observe natural justice and procedural fairness (see s 7).

(3) An interim order remains in force until the earliest of the following happens:

(a) the end of 12 weeks after the day the order is made;

(c) the tribunal makes an order at the end of the hearing to which the interim order relates.

(4) The tribunal may, on application by a party while an interim order is in force -

(5) If the person against whom an interim order is made is not present when the order is made, a registrar must arrange for a copy of the order to be served on the person as soon as practicable after the order is made.

41. There is no suggestion that the jurisdictional limit prescribed by s 18 of the ACAT Act is affected by any order made under s 53. Accordingly, the orders made under s 53 must be made subject to the overriding limit of ACAT's jurisdiction. Since the value of the broodmare exceeds that limit it follows that the interim orders were made without jurisdiction. In consequence they are invalid.

42. Mack refers to the fact that the first order made by ACAT on 6 April 2010 was granted in the absence of any undertaking as to damages. Mack submits that the failure of Abbey to give the usual undertaking as to damages on 6 April 2010 provides a further reason to hold that the order of 6 April 2010 was made in error.

43. An undertaking as to damages is usually regarded as a pre-requisite for the grant of an interlocutory injunction: see Kerridge and Another v Foley and Another (1968) 70 SR (NSW) 251 at 255 where Sugerman JA said:

An undertaking as to damages should, except in special circumstances, be required in every case of an interlocutory injunction or an undertaking in lieu of an injunction, for reasons which have been stated in many cases and need not be elaborated here.

See also, although in a different context, National Australia Bank Limited and Others v Bond Brewery Holdings Limited and Others [1990] HCA 10; (1990) 169 CLR 271.

44. Mack also claims an entitlement to damages in respect of the injunctions granted pursuant to Abbey's undertaking as to damages given on 5 May 2010 and ACAT's order on 17 May 2010 rectifying any error in the orders of 6 April 2010. An application is made by Mack that the Court remit the matter to ACAT for an assessment of the quantum of Mack's claim for damages.

45. This submission fails to appreciate that there is no jurisdictional power in ACAT whatsoever to deal with the application before it. If it were otherwise, ACAT would be exercising a jurisdiction, the foundation for which could only lie in the application in respect of which it has no jurisdiction. Accordingly, the Court is unable to order the relief sought by Mack relating to her claim for damages.

46. Mack also seeks an order that Abbey pay the costs of the special case. Mack relies upon the provisions of r 1707 of the Court Procedure Rules 2006 (ACT) ('the Court Rules') which relevantly provides:

(1) This rule applies if a proceeding is removed to the court from another court or tribunal (the first court).

(a) if the first court has not made an order for costs - the court may make an order for the costs of the proceeding, including the costs before the removal

(b) any order for costs made by the first court may be assessed and enforced as if it were an order of the court.

Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.

(3) Unless the court otherwise orders, the costs up to the time of the removal must be assessed as if the proceeding had remained in the first court.

47. It is submitted that the reference to 'removal' in the above rule should be read as including a referral under s 84 of the ACAT Act on the basis that even though the Court is considering a specific question, the proceedings have effectively been removed into this Court.

48. Accordingly it is submitted that this Court should make orders for costs in respect of both the proceedings before ACAT and of this application before remitting the matter to ACAT. It is submitted that the cost of ACAT up to the time of the removal should be assessed as if the proceeding had remained in ACAT, pursuant to r 1703(3) of the Court Rules.

49. Mack accepts that subject to the discretion of ACAT to make a different order, parties generally bear their own costs in proceedings before ACAT, as provided by s 48(1) of the ACAT Act. Nevertheless, Mack submits that since Abbey brought the proceedings in ACAT in respect of the chattel which had a value of between $70,000 to $80,000, the application was plainly misconceived and had no prospects of success. Mack claims to have been put to substantial expense in dealing with the claim and accordingly seeks an order that Abbey pay Mack's costs in ACAT on an indemnity basis.

50. In response, Abbey submits that r 1707 of the Court Rules has no application given that the matter was referred to this Court by ACAT of its own motion for the purposes of determining a question of law. Abbey submits that ACAT retains jurisdiction over the substantive application, save for discrete question to be answered by this Court. Abbey submits that such circumstances cannot be properly described as a 'removal' in respect of r 1707.

51. Rule 5801 of the Court Rules contains the following definitions:

(a) the party who requested that the question be referred; or

(b) if the question was referred by the referring court or tribunal on its own initiative and the court or tribunal is a party to the proceeding - the court or tribunal; or

(c) if the question was referred by the referring court or tribunal on its own initiative and the court or tribunal is not a party to the proceeding - the entity that made the decision to which the proceeding before the referring court or tribunal relates.

question referred, to the Supreme Court - a reference to a question

referred to the Supreme Court is a reference to a case stated to, or question reserved for, (however described) the Supreme Court.

Supreme Court means the Supreme Court otherwise than when it is the Court of Appeal.

tribunal includes any entity (other than a court) that may refer a question to the Supreme Court.

52. The question was referred to the Court by ACAT of its own motion. The Court considers that the word 'removed' in r 1707(1) of the Court Rules has application where proceedings are wholly moved from one court or tribunal to the Supreme Court and does not include the present matter in which a question of law only has been referred pursuant to s 84 of the ACAT Act to the Supreme Court, leaving the substantive matter remaining in the lower court or tribunal. Subject to the findings of this Court with respect to the question of law referred to it, the matter remains current in ACAT.

53. Accordingly it follows that r 1707 has no application and accordingly this Court has no power to make any cost order relating to the proceedings which have occurred in ACAT.

54. Rule 5809 of the Court Rules provides the following:

Special case to Supreme Court - agreement about damages and costs

(1) The parties to a special case may enter into a written agreement that, on the Supreme Court's decision in the affirmative or negative on the questions raised by the special case, a stated amount must be paid by a party to another party, either with or without costs of the proceeding.

(2) Judgment may be given for the stated amount with or without costs, and the judgment may be enforced immediately unless otherwise agreed or stayed on appeal.

(3) In this rule:

"stated amount "means -

(a) an amount agreed by the parties; or

(b) an amount set by the Supreme Court; or

(c) an amount set in the way agreed by the parties or as the Supreme Court orders.

55. The parties have made no written agreement in respect of damages and costs and accordingly the Court is unable to enforce any prior agreement. Further, in view of the finding that ACAT has no jurisdiction, or, as described in s 18 of the ACAT Act, Abbey's application 'cannot be made' to ACAT, ACAT has no jurisdiction to award costs.

56. Accordingly, this Court only has power to make an order relating to the hearing before it. In view of the circumstances in which this hearing has arisen, namely a question of law upon which there has been no precedent and which was referred to the Court by ACAT itself, the Court is satisfied that it should make no order as to costs.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Cowdroy.

Representative for the Initiating Party: Mr A. Morris, ACAT Registrar

Solicitor for Active Party (Abbey): Mr J. Colquhoun of Wood Fussell Solicitors

Solicitor for Active Party (Mack): Esplins Solicitors