Dibeek Holdings Pty Limited v Emmanuel Notaras, Helen Notaras and Stamatina Karouzos [1997] ACTSC 83 (17 October 1997)

SUPREME COURT OF THE ACT

DIBEEK HOLDINGS PTY LIMITED v. EMMANUEL NOTARAS, HELEN NOTARAS and STAMATINA
KAROUZOS
No. SC 386 of 1997
Number of pages - 12
Real Property

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

HIGGINS J

CATCHWORDS

Real Property - Leases - Tenancy Tribunal of the ACT ("Tribunal") - Jurisdiction - Whether Tribunal has jurisdiction to hear dispute concerning forfeiture of lease - "Dispute about a lease" - Tribunal's jurisdiction extends to disputes about whether lease has terminated.

Real Property - Leases - Tenancy Tribunal of the ACT - Powers - Whether Tribunal has power to order forfeiture and relief against it - Whether Tribunal has power to determine status of lease - Whether Tribunal has power to re-open, re-write and/or set aside leases - Tribunal's powers wider than those of Court.

Real Property - Leases - Tenancy Tribunal of the ACT - Dispute concerning forfeiture of lease - Whether parallel proceedings in this Court should be stayed - Whether jurisdiction concurrent with ACT Supreme Court - Relevance of forum non conveniens doctrine - Where Tribunal exercising concurrent jurisdiction not foreign and subject to supervisory jurisdiction of alternative tribunal - More appropriate forum is test - Need to show good cause for Court to stay proceedings properly before Tenancy Tribunal - Not established.

Real Property - Leases - Tenancy Tribunal of the ACT - Dispute concerning forfeiture of lease - "Parties" - Includes all persons with direct interest in dispute.

Real Property - Leases - Where executed after term commences and no evidence of prior entry into lease - "Entered into" - As of date of execution.

Australian Capital Territory (Self Government) Act 1988 (Cth), s48A(3)

Tenancy Tribunal Act 1994 (ACT), ss 3, 5, 6, 8, 16, 23, 33, 53, 54, 57

Magistrates Court (Civil Jurisdiction) Act 1982 (ACT), ss 6, 11, 22

Supreme Court Act 1933 (ACT), s 20(2)

CAC Pty Ltd v Diamond Hill International Pty Limited, (Young J, Supreme Court of NSW, 29 May 1996, unreported), discussed

Doe d Carter v Barnard (1849) 13 QB 945, 116 ER 1524, discussed

Hill v Barclay (1811) 18 Ves Jun 56; 34 ER 238, discussed

Reynolds v Pitt (1812) 19 Ves Jun 134; 34 ER 468, discussed

HR & CE Griffiths Pty Ltd v Rock Bottom Fashion Market Pty Ltd (1997) (Thomas J, Supreme Court of Queensland, 7 January 1997, unreported), discussed

McHenry v Lewis (1882) 22 Ch D 397, discussed

Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538, distinguished

Balescope v Pegasus Leasing Ltd (1994) 125 ALR 483, discussed

Pegasus Leasing Ltd v Cadoroll Pty Ltd (1996) 59 FCR 152, discussed

Dawson v Baker (1994) 120 ACTR 11, discussed

Commissioner for Housing for the Australian Capital Territory v Smith (Higgins J, Supreme Court of the ACT, 1 February 1996, unreported), discussed

Commissioner for Housing for the ACT v Little (Miles CJ, Supreme Court of the ACT, 12 June 1996, unreported), discussed and applied

Lang, A "The New Regime for Retail Tenancy Disputes", Law Society Journal, March 1997, 39-43

HEARING

CANBERRA, 27 June 1997 (hearing), 17 October 1997 (decision)

17:10:1997

Appearances

Counsel for the Plaintiff: Mr P Durack

Solicitor for the Plaintiff: Clayton Utz

Counsel for the Defendant: Mr R Arthur

Solicitor for the Defendant: Snedden Hall & Gallop

ORDER

THE COURT ORDERS THAT:

1. The proceedings in this matter be stayed.

DECISION

HIGGINS J

The proceedings

On 29 May 1997, the plaintiff commenced proceedings in this Court against the defendants. The statement of claim alleges that the plaintiff is the registered proprietor of a Crown Lease of land upon which is erected a complex known as Tuggeranong Markets.

Various units within the Markets were sublet to the defendants. Those subleases were registered and required, on their face, payment of various sums by way of rental, payable monthly in advance, together with a "promotional levy".

The plaintiff alleges that the defendants are in arrears of rental and levies in relation to each of the specified subleases and after reciting that it became lessor by assignment from a mortgagee in possession, then seeks possession of the areas so sublet.

It appears that, in March 1997, the plaintiff served notices on the defendants alleging various breaches by them of their respective subleases. Those breaches included alleged arrears of rent and levies, at least so far as then due. The claim in these proceedings also includes not only those arrears but also arrears allegedly accruing after the date of those notices.

The defendants, on various dates up to 26 May 1997, filed notices of dispute with the Tenancy Tribunal of the Australian Capital Territory (ACT Tribunal). It is unnecessary to refer to those notices in detail. It suffices to note that the present action is one which, on the face of the notices of dispute, could be resolved by that Tribunal provided, of course, the ACT Tribunal has the necessary jurisdiction and powers to dispose of it fully.

The jurisdiction and powers of the Supreme Court

The Supreme Court Act 1933 (ACT) confers on this Court the jurisdiction to entertain this action, and the power to grant all traditional legal and equitable remedies, see s20. However, s20(2) also provides,

Unless it is required to do so by or under a Commonwealth Act or a law of the Territory, the Court is not bound to exercise its powers where it has concurrent jurisdiction with another court or tribunal.

Mr Durack, for the plaintiff, nevertheless contends that the Court is bound to accept jurisdiction because, in truth, the jurisdiction is not concurrent. I take his fall-back position to have been that the ACT Tribunal, even if technically of concurrent jurisdiction, is not a convenient forum to resolve all the issues between the parties.

The jurisdiction of the ACT Tenancy Tribunal

The various subleases pursuant to which the plaintiff claims, on breach of covenant, to be entitled to forfeit and, in consequence, to have possession of the areas so demised, were registered on 9 August 1995.

The Tenancy Tribunal Act 1994 (ACT) (TT Act) came into effect from 1 January 1995 (ss1 and 2 came into effect on 11 October 1994).

There is no doubt that these subleases are "leases" to which the TT Act applies. Section 5(1) applies the TT Act to leases in respect of,

(a) retail premises, or premises located in a shopping centre, other than premises ... [not relevant].

The area of disputation over which the ACT Tribunal has jurisdiction is referred to in s6. For present purposes, it is sufficient to note that, within that area are disputes, being,

(f) a claim by a party to a lease that another party to the lease has breached or is breaching the Code ... [not relevant];

(g) a dispute about a lease, being a dispute prescribed by the Code as suitable for resolution under this Act;

(h) any other dispute about a lease or negotiations for the entering into of a lease.

The terms of the Code are not relevant for present purposes.

The Magistrates Court is denied jurisdiction in relation to any dispute to which the TT Act applies, see s7 and s12 Magistrates Court (Civil Jurisdiction) Act 1982 (ACT) (MC(CJ) Act).

Section 8 makes it clear that the TTAct applies to a dispute under s6(1)(f) or (g) if the lease has been entered into or its renewal has taken place on or after 1 January 1995. A dispute relating to the variation of any provision of a lease, such variation being made on or after 1 January 1995, is also included.

However, where a dispute falls within s6(1)(h) rather than within s6(1)(a) to (g), the TT Act applies whenever the conduct giving rise to the dispute occurred, see s8(5).

The powers of the ACT Tribunal include,

- the making of interim orders before a hearing being "such ... as it considers appropriate to safeguard the position of [the applicant for such relief]" - s53(1). Such orders may be varied or rescinded from time to time - s53(3);

- the granting of final relief.

The terms of the power to grant final relief are to be found in s54,

(1) Subject to this Act and the Code, the Tribunal may exercise any power to grant relief in relation to a dispute heard before it that would be exercisable by the Magistrates Court under the Magistrates Court (Civil Jurisdiction) Act 1982 if that Court had jurisdiction to hear the dispute.

(2) Subject to the Code, in addition to any other order the Tribunal may make under subsection (1) -

(a) the Tribunal may make an order for the payment of an amount exceeding $50,000;

(b) the Tribunal may, in relation to a dispute referred to in paragraph 6(b), re-open the lease and may take whatever action it considers appropriate in the circumstances, including -

(i) varying the lease, whether by inserting new terms or otherwise; and

(ii) setting the lease aside, in part or in whole; and

(c) the Tribunal may make any order required to enforce the Code.

Whilst being freed from the restraint of the $50,000 limit for monetary awards, the ACT Tribunal otherwise may exercise any of the powers that the Magistrates Court might have exercised in connection with any such dispute if that Court had jurisdiction with respect to it. In addition, it has a general power to re-write or set aside a lease or to enforce the Code.

The Code is the "Code of Practice" relating to leases approved by the relevant Minister pursuant to s75 of the TT Act and published pursuant to s77.

Powers of the ACT Tribunal

By virtue of s6(1) MC (CJ) Act, the Magistrates Court, in dealing with matters which it has jurisdiction to hear and determine,

(a) ... may grant such relief, redress or remedy as the Supreme Court has power to grant in an action of a like nature in that court, and for that purpose the court may make such orders as the Supreme Court has power to make in the like circumstances; and

(b) the court shall give effect to any ground of defence or cross-claim, whether equitable or legal, in the same manner and to the same extent as the Supreme Court would do in the like circumstances.

Section 6(2) confers power on Magistrates, the Registrar and other officers of the Magistrates Court as if they were, in the case of a Magistrate, a Judge or, otherwise, a corresponding officer of this Court.

The plaintiff contends that despite this wide conferral of power, the powers of the ACT Tribunal do not extend to disputes as to whether,

(i) a lease has been validly forfeited;

(ii) a lease has otherwise come to an end;

(iii) a lessee (or former lessee) is entitled to relief against forfeiture.

A further contention is that the TT Act does not apply to the disputes concerning these leases.

That latter contention raises the question as to when the leases in question were "entered into". It depends on acceptance of a proposition that a lease is "entered into" no later than the date upon which the term of the lease commences.

When is a lease entered into?

In this case, the leases in question, between Gahahan Pty Ltd as lessor and the defendants as lessees of various premises were executed on 30 June 1995, though the initial term was expressed to commence on 1 October 1994.

In my view, in these circumstances, the leases were entered into and the TT Act applied to them or not, as of the date of their execution. It is, after all, then that the current state of the law can be taken into account in formulating the terms of the lease. The predating of the commencement of the term of a lease, although a valid and proper provision to make, does not avoid the application to that lease of the TT Act or the Code. The date of commencement of a lease may pre-date or not the making of a contractual agreement for a lease. In some cases, of course, the formal lease documents may merely evidence the fact that a lease has been earlier entered into. There may be a pre-existing tenancy at will or other form of lease replaced by the formally executed lease. In the absence of evidence that the former situation is that which is applicable the date of execution of the formal lease document seems, prima facie, to be the relevant date.

What is the scope of a "dispute about a lease"?

It may be accepted that had the ACT Tribunal's jurisdiction been limited to disputes under a lease, the relationship of landlord and tenant would need to have been in existence at the time of the dispute and of its reference to the Tribunal. When the Retail Shop Leases Act (Qld) was amended in 1994 to change a similar jurisdictional phrase referring to disputes "under" a lease to disputes "about" a lease, that latter phrase was held, as a result of that change, to include a dispute referred to the relevant Queensland Tribunal after the lease had been validly terminated. Thomas J so decided in HR & CE Griffiths Pty Ltd v Rock Bottom Fashion Market Pty Ltd (Supreme Court of Queensland, 7 January 1997, unreported), where the issue was whether an option to renew a lease had been validly exercised. The above interpretation was, in that case, supported by the inclusion of "former" lessors or lessees within the relevant definition.

There is no definition of the term "dispute about a lease" in the TT Act.

The New South Wales Retail Leases Act 1994 seems to cover much the same field as the TT Act. It contains a definition of "retail tenancy dispute" (s63(1)). It is defined to mean,

... any dispute concerning the liabilities or obligations (including any obligation to pay money) of a party or former party to a retail shop lease, being liabilities or obligations which arose under the lease or which arose in connection with the use or occupation of the retail shop to which the lease relates.

Mr Andrew Lang, in an article in the Law Society Journal, March 1997, p39, entitled "The New Regime for Retail Tenancy Disputes", complains that the relevant NSW Tribunal has no jurisdiction in relation to guarantors. They appear to fall outside of the definition of a "party" to a lease under the NSW Act. The article also complains that there is no jurisdiction to order possession, grant equitable remedies or entertain equitable defences or cross-claims. Nor is there power to transfer proceedings to the Supreme Court of New South Wales which is able to grant such remedies. The area of cognizable disputes is expressly limited by s63(1) to disputes under a lease.

In CAC Pty Ltd v Diamond Hill International Pty Ltd (NSW Supreme Court, 29 May 1996, unreported), Young J considered a dispute as to whether there had been a binding lease or agreement for lease. The lessee was seeking specific performance and had obtained an interlocutory injunction against the lessor. A request to transfer proceedings to the NSW Tribunal (ie the Commercial Tribunal) established under the NSW Act was refused. The scope of the jurisdictional limitation that the dispute be under a lease was considered decisive.

His Honour said,

"I cannot see how it is possible for this motion to succeed for three reasons.

First, if the defendant is right that the statutory lease or lease agreement was terminated then there is not at the date of the application any dispute involving a current retail shop lease and that is the end of the matter.

Secondly, if, on the other hand, there is a matter of specific performance before the court, and if there is a finding that the lease is on foot, which is necessary to make it a retail tenancy dispute, then it follows that there must be specific performance. So there is no dispute between the parties which needs to be sent to the Tribunal. The third reason is that the court must be satisfied that the dispute, namely the dispute as to the grant of specific performance, can be effectively dealt with by the Tribunal... It may be that the Tribunal can order money be paid to the landlord for legal costs, but it cannot make any order in the way of specific performance".

These reasons do not seem to accord any role to the reference to a `former party to a retail shoplease' in s.63(1) of the NSW Act. Nevertheless, disputes arising `under' a lease are, it is clear, a narrower range of disputes than those "about" a lease.

The area of disputes within the ACT Tribunal's jurisdiction is thus wider than that falling within the jurisdiction of the NSW Tribunal. It is at least as wide as that now falling within the jurisdiction of the Queensland Tribunal.

What is the extent of the powers of the ACT Tribunal?

The restrictions on the powers of the NSW Tribunal referred to by Young J (supra) contrast starkly with the wide powers granted to the ACT Magistrates Court and hence to the ACT Tribunal. The power to grant equitable remedies, and to entertain equitable defences and cross-claims are expressly conferred upon the ACT Tribunal though such powers are denied to the NSW Tribunal.

Section 72 of the NSW Act confines the powers of the NSW Tribunal to the making of orders for the doing of work or the payment of money. Under s73 a monetary limit of $250,000.00 is imposed on the power to order a monetary payment. Section 75 of the NSW Act requires a court, including the NSW Supreme Court, subject to a discretion to do otherwise, to transfer a dispute before it, if it is a "retail tenancy dispute", to the NSW Tribunal. That may afford a reason for closely limiting the jurisdiction of the NSW Tribunal so as to avoid the appearance of depriving the Supreme Court of a traditional jurisdiction.

Given the prohibition on the jurisdiction conferred by the TT Act upon the ACT Tribunal being exercised by the ACT Magistrates Court, it is clear that the ACT Tribunal is not intended to have less power to deal with retail tenancy disputes than the ACT Magistrates Court would have had if the jurisdiction under the TT Act had been conferred on it, rather than the ACT Tribunal.

Nevertheless, counsel for the plaintiff contends that, despite the wide terms of s6, MC(CJ) Act, the ACT Tribunal lacks the power to declare a lease invalid or to have been forfeited or to issue process in the nature of a writ of possession or of ejectment or to give equitable relief such as relief from forfeiture of a lease.

That argument is founded upon the terms of s11 of the MC(CJ) Act. That section provides,

(1) Subject to this section, the court does not have jurisdiction to hear and determine proceedings in which the title to land is genuinely in question.

(2) The jurisdiction of the court to hear and determine proceedings is not affected by reason only that the title to land incidentally comes in question in the proceedings.

(3) In proceedings referred to in subsection (2), a judgment is not evidence of title to land between the parties to the proceedings or their privies for any purpose whatsoever.

Certainly, it is outside the jurisdiction conferred on the ACT Magistrates Court under the MC(CJ) Act, to hear and determine a dispute as to the title to land, whether in relation to a lease or otherwise. However, an enactment other than the MC(CJ) Act, may well, and does, confer such jurisdiction.

I accept for present purposes, that at issue under the notices of dispute before the ACT Tribunal is a question as to whether the subject leases have been validly determined for non-payment of rent and/or other breaches of covenant.

However, the jurisdiction exercised by the ACT Tribunal is not the jurisdiction conferred on the ACT Magistrates Court by the MC(CJ) Act. The ACT Tribunal has conferred on it a special jurisdiction narrower in subject matter but with wider powers in relation to that subject matter than the ACT Magistrates Court had either under the MC(CJ) Act or other enactments, in respect of that subject matter.

I can see nothing in the TT Act which would indicate that s11 MC(CJ) Act is to be read as qualifying not only s5 of that Act but also s6 of the TT Act.

A provision such as s11 is traditionally found in enactments conferring summary criminal and limited civil jurisdiction upon Justices. It was designed to prevent a real action being substantively dealt with by justices who might or might not be legally qualified, thereby making a declaration of title, under the guise of an ejectment action, having effect, not merely inter partes, but in rem. That device had been used by common law courts to evade the need for the more complex and ancient writs of Novel Disseisin or of Entry, see, for example, Doe d Carter v Barnard (1849) 13 QB 945, 116 ER 1524.

Some jurisdiction in relation to or involving title to land is expressly conferred on the ACT Magistrates Court by enactments other than the MC(CJ) Act, see e.g. s4 Recovery of Lands Act 1929 (ACT). That latter provision enables the Magistrates Court to decide whether a lease granted by the Commonwealth in respect of Territory land has been determined so as to give a right to immediate possession. That right is then enforceable by a warrant of ejectment issued by that Court under that Act. The decision whether to grant or withhold that relief is one which is discretionary. See Commissioner for Housing for the Australian Capital Territory v Smith (Higgins J, Supreme Court of the ACT, 1 February 1996, unreported).

A similar jurisdiction is conferred under the Landlord & Tenant Act 1949 (ACT) in relation to the subleases of "prescribed premises" (that is, generally, premises other than commercial premises, see s8(1)). Judgment for possession, if given, may be enforced by the ACT Magistrates Court, per s80,

... in the same manner as a like order if made by the Court otherwise than under this Act might be enforced.

That provision clearly refers to the procedure and remedies available by virtue of s4 of the Recovery of Lands Act.

The Landlord and Tenant Act, 1899 (NSW) as amended, continues to apply in this Territory subject, of course, to the TT Act. Section 23 thereof confers on the ACT Magistrates Court a jurisdiction generally similar, in relation to demised premises in the Territory, as had previously been conferred on the District Court of New South Wales. Unlike its parent provision, however, there is no limit placed on the rental value of the demised premises which had restricted the equivalent jurisdiction conferred on the New South Wales District Court.

The relationship between the 1899 Act and the 1949 Act were explained by Miles CJ in Commissioner for Housing for the ACT v Little (Miles CJ, Supreme Court of the ACT, 12 June 1996, unreported).

Prior to the enactment of the TT Act, as His Honour observes at pp4-6, it is open to the ACT Magistrates Court, if cause is shown, to give judgment for possession and to enforce ejectment, in relation to a wide range of demised premises, and to grant equitable relief in relation thereto, including relief against forfeiture.

That jurisdiction, insofar as otherwise it would be concurrent with that of the ACT Tribunal, is now excluded.

Section 57 TT Act (enforcement) refers to and applies to the ACT Tribunal the powers of the ACT Magistrates Court "when exercising its jurisdiction under the [MC(CJ) Act]".

Section 22 MC(CJ) Act empowers the ACT Magistrates Court to hear and determine proceedings in respect of which jurisdiction is conferred by a law in force other than the MC(CJ) Act. By virtue of s22(8), if the Court makes an order pursuant to such an application, it is further empowered to "make such other orders and give such directions as it thinks just".

The powers of the ACT Magistrates Court conferred by s.6 (grant of equitable relief and other Supreme Court remedies) are applicable to any proceedings that Court has jurisdiction to hear. Those powers are properly described as powers the ACT Magistrates Court may exercise pursuant to a provision of the MC(CJ) Act.

I conclude, therefore, that the power to grant relief by an enforceable order for possession and/or ejectment is vested in the ACT Tribunal. In addition, it has the power to determine the status of a lease and, further, to re-open and re-write or, even, to set aside a lease, a power more extensive than that previously vested in either the ACT Magistrates Court or this Court.

Further, given that the ACT Magistrates Court may, in relation to a dispute it has jurisdiction to hear and determine, grant equitable relief, it is clear that a tenant, where a lease is found to have been terminated for breach, may cross-claim for equitable relief against forfeiture. That remedy is available whether or not it would be supported by the Forfeiture of Leases Act 1901 (ACT), see for example, Hill v Barclay (1811) 18 Ves Jun 56, 34 ER 238; Reynolds v Pitt (1812) 19 Ves Jun 134, 34 ER 468.

Who may be a party to a dispute under the TT Act?

The TT Act defines the term "party" in relation to a lease. That definition includes an "owner" and a "tenant" as well as persons referred to in ss16, 23 or 33. Each of those sections includes a person who has, or is regarded by the Registrar as having, a "direct interest" in the dispute.

Thus, the category of persons who may be parties to a dispute before the ACT Tribunal goes beyond existing lessors and lessees. In the case of "a dispute" concerning the forfeiture of a lease, then a former tenant under the forfeited lease or a guarantor or encumbrancee of a lease, as well as the lessor, and, possibly, a predecessor in title of the lessor, must, it seems to me, be regarded as a party with a "direct interest" at least insofar as such a party might be adversely affected by decisions or orders made to resolve the dispute.

That conclusion is reinforced by the limitation period prescribed by s6(2). That provides,

Nothing in this Act is to be taken to prevent a dispute from being dealt with under this Act by reason only that the lease to which the dispute relates has ceased to be in force if the Registrar takes action in relation to the dispute, or a person refers the dispute to the Registrar, within 3 months after the lease has so ceased to be in force.

Thus whether or not the NSW Act includes a former party to a lease or those such as a guarantor or encumbrancee whose interests are directly affected by the dispute, the TT Act certainly does.

In my view, it would be surprising if the legislature, having set up the ACT Tribunal to replace the jurisdiction of the ACT Magistrates Court in the area of commercial tenancy disputes, would leave disputes concerning the expiration of such leases and recovery of possession of such demised premises with the ACT Magistrates Court but vest the jurisdiction to deal with all other disputes in the ACT Tribunal. It is not surprising that disputes, which relate to a lease, but do not seek to assert or reinstate a current or recently terminated landlord and tenant relationship or to recover possession from a tenant, or former tenant, should be left to be resolved by other processes. In those cases an urgent or mediated solution to the dispute is not such a priority.

Conclusion that the ACT Tribunal has jurisdiction to resolve the matters in dispute

I conclude, therefore, that the ACT Tribunal has jurisdiction to deal with the notices of dispute referred to it. There is no reason why, if so requested, the ACT Tribunal cannot deal with a dispute as to arrears of rent, if any, arising after the date of the original notices.

That jurisdiction is, of course, concurrent with that of this Court so far as the causes of action pleaded and relief sought in this action are concerned. Indeed, it would not have been open to the ACT Legislative Assembly to have provided otherwise.

The ACT Legislative Assembly's powers are limited by s48A(1) of the Australian Capital Territory (Self-Government) Act 1988 (Cth). Section 48A(3), it may be noted, expressly repeats s20(2) of the ACT Supreme Court Act providing that,

The Supreme Court is not bound to exercise any powers where it has concurrent jurisdiction with another court or tribunal.

Whilst s20(2) of the ACT Supreme Court Act could be deleted or amended by the Assembly, s48A(3) can be affected only by an Act of the Commonwealth Parliament.

The discretion to stay proceedings

If the legislature establishes a specialist tribunal to deal with matters within that specialised area, then, prima facie, it would be expected that this Court would not, ordinarily, seek to assert its concurrent jurisdiction in relation to a matter then pending before such a tribunal.

Further, whilst the ACT Tribunal has no power to transfer matters to this Court or to state a case to it on a question of law, there is an appeal to this Court from any decision it might make "on a question of law", s58(1) TT Act. It is a matter of concern that the right of appeal which landlords, tenants and other interested persons previously had in relation to appeals from decisions of the ACT Magistrates Court has been thus apparently restricted. There is, nevertheless, power vested in this Court both at common law and under the TT Act to supervise the ACT Tribunal and correct any error of law or denial of natural justice. I express no view as to whether the jurisdiction of this Court to review decisions of the kind now within the jurisdiction of the ACT Tribunal on grounds other than error of law or denial of natural justice has survived, or, indeed, whether it is inconsistent with the constitutional limits on the exercise of judicial power within the Territory to allow a subordinate Tribunal to decide such matters free from review by this Court or a Federal Court by way of rehearing.

It is, of course, prima facie, vexatious for the same, or substantially the same, matter to be litigated at the same time in different courts or tribunals. McHenry v Lewis (1882) 22 Ch D 397 is an early example of that situation. Lord Jessel MR noted that if the same party sued in separate courts, being courts of comparable jurisdiction, the plaintiff should be put to election. Where one such action is outside the jurisdiction, however, it may be that both actions are necessary for a complete resolution of the matter at issue, at least where both actions are bona fide. It is a further point of distinction of course, that in this case the plaintiff is the moving party in this Court but the defendants are the moving parties before the ACT Tribunal.

There is, however, more recent authority. In Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538, the doctrine of forum non conveniens was explored by the High Court. The case involved a matter pending both before a foreign tribunal and a court within Australia. The test propounded to determine whether the Australian proceedings should be stayed was whether, in all the circumstances of the particular case, including the availability of a foreign tribunal to whose jurisdiction the defendant was amenable, that latter tribunal was or was not a "clearly inappropriate forum" for the determination of the dispute.

With all due respect, I do not consider those principles to be applicable to a situation where the court or tribunal exercising concurrent jurisdiction is not "foreign" and is, furthermore, subject to the supervisory jurisdiction of the alternative court or tribunal.

It seems to me that if any guidance is to be sought, it might more appropriately be found by reference to the principles applicable to change of venue within a single juristic system or to the cross-vesting of matters between Australian superior courts.

In those cases the more stringent "clearly inappropriate forum" test is replaced by a "more appropriate forum" test.

There may be disagreement between two courts of coordinate status as to which is more appropriate in relation to a dispute, see, for example, Balescope v Pegasus Leasing Ltd (1994) 125 ALR 483 and Pegasus Leasing Ltd v Cadoroll Pty Ltd (1996) 59 FCR 152. That problem may be difficult to resolve as neither of such courts is obliged, as a matter of law, to defer to the other.

It is agreed that to have two parallel streams of litigation in relation to the same dispute is usually inappropriate. It does not need to be concluded that one of the sets of proceedings is, itself, vexatious or oppressive.

The Pegasus Leasing (supra) impasse, however, cannot arise in relation to the jurisdictional overlap between the ACT Tribunal and this Court. Only this Court can decide to stay proceedings in the ACT Tribunal. However, the latter has no power to prevent proceedings being pursued in this Court even if they fall within the ACT Tribunal's jurisdiction. The ACT Tribunal is subject to the supervisory jurisdiction of this Court. Unless good cause is shown, proceedings properly before the ACT Tribunal must proceed to finality. The principle affirmed by Miles CJ in Commissioner for Housing of the ACT v Little (supra) at p4 in relation to the ACT Magistrates Court applies to the ACT Tribunal. Of course, it is open to this Court to assume jurisdiction if it is of the opinion that it, rather than the ACT Tribunal, is the more appropriate forum for the resolution of the matters in dispute. I express no view as to whether this Court may, in relation to the ACT Tribunal, exercise the removal powers conferred on it in relation to matters before the ACT Magistrates Court under Part XIX of the MC (CJ) Act.

The plaintiff objects to likely delay in the ACT Tribunal compared with that likely in this Court. This, it is contended, makes it more appropriate for this Court to assert its jurisdiction. If there was a real and demonstrable injustice likely to arise from such a consideration, this Court might well take over the effective control of the matter. However, I am not persuaded that the comparative delay in the ACT Tribunal is significant. In any event, delay is not something which can be easily assumed to be a continuing difficulty in any particular case, see generally, Dawson v Baker (1994) 120 ACTR 11.

Of more concern are the matters raised by counsel for the plaintiff in his written submissions. They raise, in paragraph 9, two issues. The first is the need for expedition and certainty. Those considerations, I am satisfied, are not significantly compromised by leaving the proceedings within the ACT Tribunal to progress according to the TT Act.

The second consideration is more significant. Effectively, the plaintiff suggests a prior collusive arrangement between the original lessor and the defendants so as to relieve the defendants, effectively, from the apparent rent burden which, on the face of the leases, they would otherwise have had to bear. I make no comment, of course, on whether that suggestion is justified or not. If it is, however, it is at least arguable that the plaintiff could be seriously disadvantaged and, indeed, unfairly compromised by a prior collusive arrangement which had the effect of varying the terms of those leases before their transfer to the plaintiff so as to favour the defendants.

If that was the legal consequence of that arrangement, this Court, apart from granting rectification, has no power to set aside that agreement if it is otherwise lawful. Of course, it might not be, though I express no view about that. The ACT Tribunal, however, does have expressly conferred upon it a power to vary or set aside an otherwise lawful lease agreement or any term or terms thereof, see s54(2)(b).

In that respect the powers of the ACT Tribunal are, apparently, wider than those of this Court in its original jurisdiction. The plaintiff's argument, therefore, in fact strongly favours the resolution of these matters by the ACT Tribunal rather than this Court, assuming, of course, the validity of that conferral of power. That consideration, in my view, outweighs the disadvantage created by the limited rights conferred upon the parties to disputes before the ACT Tribunal. The plaintiff's arguments do not embrace any challenge to the validity of s54(2)(b) of the TT Act and, accordingly, I express no view on that question. Nor is it suggested that the issues before the ACT Tribunal in this matter are otherwise so complex or novel as to require resolution at first instance by this Court.

Indeed, it would usually be advantageous, if a contentious question of law was to be raised in relation to a dispute before the ACT Tribunal, to have the benefit of the Tribunal's findings of fact before considering that question of law on appeal.

On balance, therefore, it seems to me that the proceedings in this Court should be stayed until further order. That leaves it open, should circumstances materially change, for the plaintiff to seek leave to re-activate these proceedings. Conversely, it remains open for the defendants, if the dispute is resolved by the ACT Tribunal proceedings, to seek a permanent stay or other disposition of these proceedings.

I will hear the parties as to costs.