Ibarcena & Anor v Marellan Pastoral Co Pty Ltd [2002] FMCA 339 (12 December 2002)

Last Updated: 24 December 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

IBARCENA & ANOR v MARELLAN PASTORAL CO PTY LTD

[2002] FMCA 339

TRADE PRACTICES - whether application properly framed - whether any cause of action disclosed - whether the application premature or an abuse of process pending the outcome of NSW Tenancy Tribunal proceedings.

Trade Practices Act 1975 (Cth), ss.60, 82, 83, 87, 87A, 44ZZD, 44ZZF, 44ZZI

First Applicant: Second Applicant:

JEREMY PATRICK IBARCENA SHIRLEY GIBBONS

Respondent:

MARELLAN PASTORAL COMPANY PTY LTD

File No:

CZ36 of 2002

Delivered on:

12 December 2002

Delivered at:

Canberra

Hearing Date:

12 December 2002

Judgment of:

Driver FM

REPRESENTATION

The applicants appeared in person

Solicitors for the Respondent:

Ms Tunn Baker Deane & Nutt

ORDERS

(1) The original application, filed on 3 December 2002, and the amended application, filed in court on 12 December 2002, are to be struck out.

(2) No further application is to be accepted for filing without leave of the Court pending the decision of the New South Wales Consumer, Trade and Tenancy Tribunal.

(3) There is no order as to costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA

CZ36 of 2002

JEREMY PATRICK IBARCENA

First Applicant

SHIRLEY GIBBONS

Second Applicant

And

MARELLAN PASTORAL COMPANY PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This extempore judgment relates to an application originally filed in the Federal Court on 3 December 2002 by Mr Ibarcena and Ms Gibbons against the Marellan Pastoral Company Pty Limited, seeking relief under the Trade Practices Act 1975 (Cth) ("the Trade Practices Act"). The application has been transferred to this Court by order of Finn J. I have jurisdiction to deal with the matter, noting that the applicants, among other things, assert a breach of s.60 of the Trade Practices Act. The application, as originally filed, did not disclose clearly what relief was sought against the respondent pastoral company. The interim relief sought in the application, which appeared to be the only relief sought, claimed an order in the nature of a mandatory injunction against the Consumer Trade and Tenancy Tribunal ("the Tribunal") to send its file in proceedings before the Tribunal to the Court and to terminate the proceedings before that Tribunal.

2. The circumstances are that the applicants became involved in a dispute with the respondents concerning their occupation of a site at a caravan park operated by the respondents in Queanbeyan. The material before me indicates that the respondent required the applicants to leave the caravan park. The applicants dispute the entitlement of the respondent to take that action and brought proceedings in the Tribunal in order to obtain relief. Proceedings were heard by the Tribunal and I understand that, since July, the Tribunal has reserved its decision in that matter. At this stage, no date has been fixed for the handing down of a decision by the Tribunal. The present proceedings under the Trade Practices Act appear to have been brought because of some frustration experienced by the applicants in awaiting the decision of the Tribunal and some apparent concern that the decision of the Tribunal, when it is made, may not deal satisfactorily with the dispute from their perspective. However, the application, as originally filed, did not seek from this Court any relief that the Court is empowered to give.

3. An amended application filed in court this afternoon, seeks different relief, pursuant to ss. 83, 87, 87A, 44ZZD, 44ZZF, 44ZZI of the Trade Practices Act, although the application, as framed, appears merely to recite the general terms of those sections without identifying clearly the relief that is sought against the respondent pastoral company. It appears, from oral submissions made by Mr Ibarcena, on behalf of himself and Ms Gibbons, that he is seeking damages, but no relief is presently sought under s.82 of the Trade Practices Act. I am not satisfied that the amended application filed in court today, or the original application filed in the Federal Court and transferred to this Court, identifies any cause of action that has reasonable prospects of success under the Trade Practices Act.

4. I note in that connection that the jurisdiction of this Court is limited to consumer protection under Part V of the Trade Practices Act and the applications brought by these applicants appear to extend beyond that jurisdiction. In addition, this Court has no supervisory jurisdiction over the Tribunal and it should not, and probably could not, grant any relief in the nature of an injunction against the Tribunal, either to compel it to do anything or to prevent it from exercising its jurisdiction. While the Tribunal is reserved in the proceedings before it, in my view, proceedings in this Court under the Trade Practices Act, even if they were coherently framed, would be premature and potentially an abuse of process, given that the issues in dispute between the parties could be resolved by the decision of the Tribunal when it is available.

5. In the circumstances, I will order that the original application filed on 3 December 2002 and the amended application filed in Court on 12 December 2002 be struck out. I will further order that no further amended application be accepted for filing without leave of the Court pending the outcome of the proceedings in the Tribunal.

6. I will also order that there be no order as to costs.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 December 2002