Carter v TimeConti Sheffield & Anor [2011] FMCA 29 (4 February 2011)

Federal Magistrates Court of Australia

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Carter v TimeConti Sheffield & Anor [2011] FMCA 29 (4 February 2011)

Last Updated: 9 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARTER v TIMECONTI SHEFFIELD & ANOR

[2011] FMCA 29

TRADE PRACTICES – Alleged contraventions by real estate agency and owner in relation to rental premises – misleading and deceptive conduct – damages sought. PRACTICE AND PROCEDURE – Summary dismissal or stay of proceedings – principles – failure to properly name a respondent – whether res judicata or issue estoppel by reason of order of Magistrates Court of Western Australia ordering tenant to deliver up vacant possession of property – claims made on behalf of non-parties to the proceeding – claim for relief of damages for personal injury – no reasonable prospect of success. PRACTICE AND PROCEDURE – Application for substituted service – where party outside jurisdiction – where leave previously granted to apply for service outside of jurisdiction but no application made – principles to be applied where no leave granted for service outside of the jurisdiction and application made for substituted service. LANDLORD AND TENANT – Residential tenancy agreement – whether agreement terminated in exercise of owner’s right to give notice without giving grounds – whether agreement motivated by tenant seeking to enforce rights.

Civil Liability Act 2002 (WA), s.5T Federal Court of Australia Act 1976 (Cth), s.31A(2)(b) Federal Court Rules (Cth), O.7, r.9, O.8, rr.3 and 4, O.42, r.13 Federal Magistrates Act 1999 (Cth), ss.3, 17A, 42 Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 6.14, 6.15, 7.01(1), 13.08, 13.10 Industrial Relations Court Rules (Cth) Magistrates Court Act 2004 (WA), s.28(1)(b) Residential Tenancies Act 1987 (WA), ss.13A(1) and (2), 26(1), 64, 71 Trade Practices Act 1974 (Cth), Part VIB, ss.52, 82(1AAA), 87, 87E

Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Limited (1993) 42 FCR 470 Australian Competition & Consumer Commission v Chaste Corp Pty Ltd (in liq) [2002] FCA 1183 Australian Competition & Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035 Balding v Ten Talents Pty Ltd (2007) 162 IR 17; [2007] FMCA 145 Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82; [2006] WASC 281 Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 Campbell v Back Office Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Coles Supermarkets Australia Pty Ltd v FKP Ltd [2008] FCA 1915 Carl-Zeiss-Stiftung v Rayner & Keeler Ltd (No.2) [1966] 2 All ER 536 Cooper & Ors v Keith W Allan & Associates and Kallen Nominees Pty Ltd (1996) 69 IR 238 Dawson v Daqui Investments Pty Ltd (unreported, Industrial Relations Court of Australia, 25 November 1996) Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Fair Work Ombudsman v Nerd Group Australia Pty Ltd & Anor (2010) 197 IR 431; [2010] FMCA 569 Geary Nominees Pty Ltd v Pargas Nominees Pty Ltd & Ors (1986) 7 IPR 169 General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125 George v Fletcher [2010] FCAFC 53 Hoystead v Federal Commissioner of Taxation [1925] HCA 51; (1925) 37 CLR 290 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 Laing O’Rourke (BMC) Ltd (formerly Barclay Mowlem Construction Ltd) v Dampier Port Authority [2007] WASC 87 Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310 Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 Mann v The Northern Territory News (No.3) (unreported, Supreme Court of the Northern Territory of Australia, 6 May 1988) Mantova Holdings Pty Ltd v Caruso [2010] FMCA 682 Pritchard v Racecage Pty Ltd & Ors (1997) 72 FCR 203 Skipworth v State of Western Australia (No.2) (2008) 218 FLR 16; [2008] FMCA 544 Welsh v Allblend Holdings Pty Ltd [2010] FMCA 281 White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 511 Young v Wyllie & Ors (2010) 86 IPR 84; [2010] FCA 283

D.A. Ipp, “Lawyers’ Duties to the Court” (1998) 114 LQR 63 JD Heydon, Cross on Evidence (Seventh Australian Edition) (Sydney: LexisNexis Butterworths, 2004)

Applicant:

KERRIN LAURA CARTER

First Respondent:

TIMECONTI SHEFFIELD

Second Respondent:

YOUSEF HASAN SALHAH

File Number:

PEG 99 of 2010

Judgment of:

Lucev FM

Hearing date:

30 July 2010

Date of Last Submission:

30 July 2010

Delivered at:

Perth

Delivered on:

4 February 2011

REPRESENTATION

The Applicant:

In person

Counsel for the First Respondent:

Mr C Sweeney

Solicitors for the First Respondent:

McCallum Donovan Sweeney

The Second Respondent:

No appearance

ORDERS

(1) The name of the first respondent be amended to read “Sheffield Estates Pty Ltd trading as TimeConti Sheffield”.
(2) The applicant’s application in a case filed 8 July 2010 be dismissed.
(3) Each of:

• (a) the first respondent’s application in a case filed on 22 July 2010;
• (b) costs of the applicant’s application in a case filed 8 July 2010 and the first respondent’s application in a case filed 22 July 2010; and
• (c) the applications generally,

be adjourned to a directions hearing at 3.00pm on 18 February 2011.

(4) Order 2 of the Court’s Orders of 30 July 2010 not be discharged other than by an express order of this Court.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH

PEG 99 of 2010

KERRIN LAURA CARTER

Applicant

And

TIMECONTI SHEFFIELD

First Respondent

YOUSEF HASAN SALHAH

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In the Amended Statement of Claim, the applicant, Ms Carter, alleges that the respondents, a real estate agent – TimeConti Sheffield – and the owner of premises rented by Ms Carter – Mr Salhah, have engaged in misleading and deceptive conduct contrary to a number of sections of the Trade Practices Act 1974 (Cth)[1] in relation to her rental of a property owned by Mr Salhah and managed by TimeConti Sheffield.[2] The Property is in the northern Perth suburb of Currambine.
2. Before the Court presently are two Applications in a Case:
   1. the first, by TimeConti Sheffield, seeks orders, in terms set out below, either staying or dismissing the proceedings on the basis that:
      1. Ms Carter has not correctly named the first respondent; and
      2. the application has no reasonable prospect of succeeding.
   2. the second is by Ms Carter who seeks to dispense with personal service on the second respondent (who is seemingly overseas) and provide for substituted service on his agents, TimeConti Sheffield.
3. After setting out some common background, each of the Applications in a Case is dealt with in turn below. There is also an issue as to the proper second respondent or second respondents, which although not argued, is dealt with briefly by the Court.

Background facts

4. On 18 October 2007, Ms Carter entered into a 12-month residential tenancy agreement with TimeConti Sheffield to lease the Property, owned by the second respondent, Mr Salhah, and Mrs Bahieh Salhah, as joint tenants. This agreement expired on 17 October 2008, and since this time Ms Carter has been occupying the Property under a periodical tenancy arrangement.[3]
5. On 23 January 2009, Mr and Mrs Salhah filed an application in the Magistrates Court of Western Australia[4] for termination of the Tenancy Agreement on the grounds of failure to pay rent. The application was heard on 20 February 2009, at which time no order was made for the termination of the Tenancy Agreement.
6. On 28 January 2010, Mr Walker, as agent for TimeConti Sheffield, carried out a rental inspection at the Property. At this time, Ms Carter raised with Mr Walker a number of maintenance issues that were outstanding and needed attention, which she claims had been previously raised with TimeConti on numerous occasions, nothing having been done about them.
7. On 16 March 2010, TimeConti Sheffield issued a Notice of Termination of the Tenancy Agreement to Ms Carter, to deliver up vacant possession of the Property by 20 May 2010. The Notice of Termination was said to be issued in exercise of the owners’ right to give notice without specifying any grounds for doing so.[5]
8. On 17 March 2010, TimeConti Sheffield issued a Notice of Termination for non-payment of rent to Ms Carter, that required her to deliver up vacant possession of the Property by 29 March 2010.
9. On 25 March 2010, TimeConti issued a further Notice of Termination for non-payment of rent to Ms Carter, that required her to deliver up vacant possession of the Property by 6 April 2010.
10. Ms Carter did not vacate the Property.
11. On 26 May 2010, Mr and Mrs Salhah filed an application in the State Magistrates Court for termination of the Tenancy Agreement on the grounds of failure to vacate the Property within 60 days after service of the Notice of Termination on 16 March 2010.[6]
12. The Residential Tenancy Application was heard on 23 June 2010 and an order was made by the State Magistrates Court for termination of the Tenancy Agreement and for delivery up of vacant possession of the Property by 12:00pm on 14 July 2010.[7] The precise terms of the Residential Tenancy Order were as follows:
    • 1. Order for termination of residential tenancy agreement and tenant shall deliver up vacant possession of the premises to the owner as from 14 July 2010 at midday.
    • 2. The balance of the application is Adjourned to 21 July 2010 at 9.00am.

The balance of the application related to the payment of rent owing and costs.

13. Also on 26 May 2010, Ms Carter filed an application and statement of claim in the Federal Court against TimeConti Sheffield and Mr Salhah, alleging contraventions of the TP Act, and seeking an interim and final injunction restraining TimeConti Sheffield and Mr Salhah from interfering with Ms Carter’s quiet possession of the Property.
14. On 24 June 2010, the Federal Court made orders transferring the matter to this Court and for Mr Salhah to take no steps, either directly or by his agent, to effect the removal of Ms Carter from the Property until further order of this Court.

Court’s previous orders

15. When the matter first came before this Court on 1 July 2010 the following orders were made:
    • 1. The first respondent provide to the applicant the most recent address it has for the second respondent, to be provided in writing on or before 8 July 2010.
    • 2. The applicant file and serve any application for leave to serve originating process and any other documents on the second respondent under Order 8, Rules 3 and 4 of the Federal Court Rules by 15 July 2010.
    • 3. The applicant file and serve any amended statement of claim and any affidavit in support of the amended statement of claim on or before 8 July 2010.
    • 4. The first respondent file and serve any application for summary judgment on or before 22 July 2010.
    • 5. Any summary judgment application made in accordance with Order 4 be heard at 2:15pm on 30 July 2010 and the matter otherwise be adjourned to this time for further directions.
    • 6. The second respondent take no steps, directly or by its agent or otherwise, to effect the removal of the applicant from the premises at [street address], Currambine, Western Australia, until further Order of this Court.
    • 7. The costs of today be reserved.

TimeConti Sheffield’s Application in a Case

16. TimeConti Sheffield’s Application in a Case is for the proceedings to be stayed or dismissed on various grounds. Each of the orders sought and grounds in support are set out below.

Summary dismissal and stay principles to be applied in this Court

17. Section 17A of the Federal Magistrates Act 1999 (Cth)[8] provides as follows:
    • (2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
      • (a) ...; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

• (a) hopeless; or
• (b) bound to fail;
• for it to have no reasonable prospect of success.

18. The Federal Court possesses a like power under s.31A(2)(b) of the Federal Court of Australia Act 1976 (Cth).[9] In relation to the power under s.31A(2)(b) of the FC Act it has been observed that:
    1. a court must be satisfied that the applicant has no reasonable prospect of success;
    2. the court need not be satisfied that the proceeding is hopeless or bound to fail;
    100. the legislature’s intention in introducing the provisions concerning summary dismissal was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by authorities like Dey v Victorian Railways Commissioners[10] and General Steel Industries Inc v Commissioner for Railways (NSW) & Ors[11] which required that the allegations be quite clearly so untenable that they could not possibly succeed;
    4. there was not an intention on the part of the legislature to remove the bar completely;
    5. the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
    6. what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits.[12]
19. Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth)[13] provides as follows:
    • The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
      • (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or ...
20. Section 31A of the FC Act and s.17A of the FM Act are equivalents,[14] and likewise r.13.10(a) of the FMC Rules which is in essentially the same terms as the abovementioned sections, insofar as it applies to summary dismissal on the basis of no reasonable prospect of success, and to which the same principles ought to apply.[15]
21. Rule 13.08 of the FMC Rules should also be noted. It provides as follows:
    • Residue of proceeding
    • (1) This rule applies if in a proceeding:
    • (a) a party applies for judgment or an order for stay or dismissal under this Division; and
    • (b) the proceeding is not wholly disposed of by judgment or dismissal or is not wholly stayed.
    • (2) The proceeding may be continued in relation to any claim or part of a claim not disposed of by judgment or dismissal and not stayed.
    • (3) The Court may give directions for the further conduct of the proceeding.

Order 42 Rule 13 of the Federal Court Rules

22. The first order sought by TimeConti Sheffield is that:
    • 1. The proceedings be stayed, or dismissed generally, pursuant to rule 13.10(a) on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceedings by reason that she has failed to comply with Order 42 Rule 13 of the Federal Court Rules.
23. Order 42 r 13 of the Federal Court Rules[16] provides:
    • Proceedings in business name

(1) Where a claim is made against any person in respect of anything done or omitted or suffered in the course of, or otherwise relating to, a business carried on within Australia by that person under a business name:

(a) if the business name is registered in a register in the State or Territory in which the business is carried on, which register discloses the name and residential address of the person -- a proceeding shall only be commenced against that person in his own name or pursuant to Division 1; and
(b) if the business name is not registered in a register referred to in paragraph (a) -- a proceeding may be commenced against that person in that business name.
(2) Where a proceeding is commenced against a person in a business name pursuant to paragraph (1)(b):

• (a) that business name shall, for the purpose of the proceeding, be a sufficient designation of that person in any process; and
• (b) any judgment or order made in the proceeding may be enforced against that person.

24. The effect of O 42 r 13 of the FC Rules is that a party who conducts a business under a registered business name must be sued in his own name and cannot be sued by his business name.[17] What is contemplated is that where a business is identifiable by a business name, steps will be taken to identify the legal personality behind that name so that judgment may be enforced against the proper legal entity.[18] A similar rule in the Industrial Relations Court Rules was referred to in circumstances where an application to amend the name of a respondent from a business name to a company name was granted after judgment had been entered because it was the intention of the Industrial Relations Court of Australia that the judgment be entered against the employer of the applicant which was the company rather than the business name.[19] In circumstances where an application was made against a firm, but also against the individual proprietor of that firm, the application against the firm was dismissed by reason of O 42 r 13 of the FC Rules by the Federal Court.[20]

25. In this case there is evidence, put before the Court by TimeConti Sheffield, which indicates that the business name on the register is TimeConti Sheffield, and the corporation carrying on the business is Sheffield Estates Pty Ltd. It follows that Sheffield Estates Pty Ltd would be the correct first respondent rather than TimeConti Sheffield. Rather than simply seeking to amend the name of the first respondent, TimeConti Sheffield seeks to dismiss or stay these proceedings on the basis that the first respondent has not been correctly named. Such an argument is simply out of place in this Court which is intended to operate in a manner:
    1. as informal as possible in the exercise of judicial power;
    2. which is not protracted in its proceedings;
    100. which resolves proceedings justly, efficiently and economically;
    4. which uses streamlined procedures; and
    5. that avoids undue delay, expense and technicality.[21]

It is an argument which, even though based on an extant Federal Court rule, is, in 2010, and in the circumstances of this case, probably out of place in any court.[22]

26. The proper course for TimeConti Sheffield to have adopted here would have been for it to move for the amendment to the name of the first respondent, rather than wasting the Court’s time and public resources, and putting a self-represented litigant to the trouble of having to be concerned about such an argument. To do so would be entirely consistent with the duties owed to the Court by the lawyers for the first respondent, and would not be inconsistent with their duties to TimeConti Sheffield, and would not prejudice TimeConti Sheffield, it being almost inevitable that an amendment to include the name of the company on the business names register would always have been made by this Court in these circumstances.[23]
27. In any event, Ms Carter now seeks to have the name of the first respondent amended from TimeConti Sheffield to Sheffield Estates Pty Ltd trading as TimeConti Sheffield. The Court has power to make such an amendment under r.7.01(1) of the FMC Rules, which is an expansive general power without qualification.[24] In order to ensure that the correct first respondent is before the Court, and, ultimately, to ensure that if judgment were to issue against the first respondent, that judgment would be properly enforceable, the Court will make an order that the name of the first respondent be amended to read “Sheffield Estates Pty Ltd trading as TimeConti Sheffield”. Even if Ms Carter had not moved for such an order, such an order would have been made by the Court of its own motion given the facts presently before the Court.

Res judicata or issue estoppel

28. The second order sought by TimeConti Sheffield is as follows:
    • 2. Further or in the alternative, the proceedings be stayed, or dismissed generally or in relation to any claim for relief in the proceedings to the extent to which it is founded upon the matters set out in paragraphs 6 to 9 and 11 of the amended statement of claim, on the basis of the application of the principle of res judicata, or alternatively the principle of issue estoppel, by reason of the decision made by the Magistrates Court at Joondalup in the proceedings numbered RSTN/1149/2010.
29. Paragraphs 6-11 of the Amended Statement of Claim provide as follows:
    • 6. On the 16th March 2010 the first respondent purported to wrongfully terminate the lease on spurious grounds that the second respondent wanted to reoccupy the leased premises.
    • 7. In truth and in fact the first respondent is acting maliciously and without good grounds in purporting to evict the applicant.
    • 8. The conduct of the 1st respondent was misleading, deceptive and unconscionable within that meaning of that term under the Trade Practice[s] Act 1974.
    • 9. The applicant alleges that the conduct of the first respondent is being done solely for the purpose of oppressing the applicant and denying the applicant the ability to demand that the first and second respondents comply with their obligations under law.
    • 10. The conduct on behalf of the respondents throughout the tenancy, have caused the applicant and her family to suffer injury, pain and suffering, humiliation, embarrassment and stress.
    • 11. The Respondents have engaged in misleading or deceptive conduct in contravention of section 52 of the Trade Practices Act 1974.
30. Res judicata presupposes two opposed parties with a definite issue between them, and that a court of competent jurisdiction has determined that issue.[25] The principle of res judicata means that an issue litigated and adjudicated is received as the truth and is conclusive as between the parties to the litigation until reversed by a court competent to do so.[26]
31. Issue estoppel is a judicial determination directly involving an issue of fact or law which has disposed of the issue so that it cannot thereafter be raised by the same parties.[27] Issue estoppel differs from res judicata in that res judicata relates to the entire claim, rather than just one issue.[28] Three requirements need to be satisfied before an issue estoppel arises:
    1. the same question has been decided;
    2. the judicial decision which is said to create the estoppel was final; and
    100. the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.[29]
32. TimeConti Sheffield submits that the claim for relief based upon damages for misleading or deceptive conduct in respect of the termination process cannot succeed on the basis of res judicata or issue estoppel by reason of the Residential Tenancy Order.
33. Section 71 of the RT Act is relevant to TimeConti Sheffield’s submissions:
    • (1) Where an owner or a tenant under an agreement gives notice of termination to the other under this Act and the tenant fails to deliver up possession of the premises on the day specified, the owner may, subject to section 62(5)(a), within 30 days after that day, apply to a competent court for an order terminating the agreement and an order for possession of the premises.
    • (2) Subject to this section, a competent court shall, upon application under this section, make an order terminating the agreement and an order for possession of the premises, if it is satisfied —
      • (a) that notice of termination was given by the owner or tenant to the other and that it complied with and was given in accordance with this Act; and

(b) where the notice was given by the owner upon a particular ground prescribed by this Act, that the owner has established that ground and, in the case of notice upon the ground of a breach by the tenant of a term of the agreement, that the breach is in all the circumstances such as to justify termination of the agreement.

(3) Notwithstanding subsection (2) the court may —

• ...
• (b) refuse to make the orders under that subsection, if it is satisfied —
  • (i) that the owner was wholly or partly motivated to give the notice by the fact that the tenant had complained to a public authority or taken steps to secure or enforce his rights as a tenant;
• ...

34. TimeConti Sheffield submits that:
    1. by virtue of the State Magistrates Court making the Residential Tenancy Order under s.71(1) of the RT Act for delivery up and vacant possession of the Property, this Court must infer that the State Magistrates Court was satisfied that it should not refuse to make an order by reason of s.71(3)(b)(i) of the RT Act; and
    2. Ms Carter says that the reason for her removal from the premises is because she complained about outstanding maintenance issues, and that that is why the owners decided to remove her from the premises, but that that issue is what must have been taken to be decided by the Residential Tenancy Order because the State Magistrates Court could not properly have made the decision to terminate the Tenancy Agreement without finding either that:
       1. there was no basis for such a finding; or
       2. that if there was such a basis, it was not sufficient to put the State Magistrates Court in a position where it did anything other than make the order to terminate the Tenancy Agreement, and give possession of the Property back to Mr and Mrs Salhah;
    100. the particulars of misleading and deceptive conduct outlined in the Amended Statement of Claim, namely the conversation that took place between Ms Carter and Mr Walker at the rent inspection at the Property carried out on 28 January 2010, can only be characterised in the language of s.71(3)(b)(i) of the RT Act as Ms Carter taking steps to enforce her rights as a tenant.
35. Ms Carter submits that:
    1. the State Magistrates Court and Federal Court applications were both filed on 26 May 2010;
    2. there did not appear to her to be any problem with her tenancy until she complained to Mr Walker on 28 January 2010; and
    100. she brought the existence of the Federal Court proceedings to the State Magistrates Court’s attention, and that the State Magistrates Court said that any Federal Court order would override a State Magistrates Court order.
36. There is scant evidence before the Court as to what occurred at the State Magistrates Court hearing of the Residential Tenancy Application. There is no transcript of the hearing, nor any reasons for judgment for the making of the Residential Tenancy Order, before the Court.
37. In the Affidavit of Daniel Polini sworn 22 July 2010,[30] he says that:
    • “22. I can recall the Magistrate saying words to the effect that she had considered the provisions of the Residential Tenancies Act and that the owners of the premises were not required to give a reason for the termination of the residential tenancy agreement. I can recall that she asked the applicant what was the reason for which she was still at the premises. I can recall that the Magistrate asked me about the period of time within which vacant possession of the premises was sought, that I asked for possession 3 weeks after the date of the hearing and that the Magistrate made an order in those terms.”
38. Ms Carter in her Amended Affidavit sworn 8 July 2010 says that:[31]
    • “10. On the 23 June 2010, at the [State] Magistrates Court, the respondent’s application was such under the Act, that the Registrar mentioned to me, that she was obliged to make the requested orders of having me removed from the residence without any discussion or input from myself.”
39. The Court is satisfied that the Residential Tenancy Order is a judicial order made by a Magistrate exercising the jurisdiction of the State Magistrates Court.[32] The Residential Tenancy Order is final and binding on the parties to it.[33] The Court is so satisfied because the Residential Tenancy Order could only have been made by a Registrar if the application was not disputed – which it obviously was – and if a party to the application did not appear – which was not the case here.[34] In those circumstances it appears that the Residential Tenancy Order must have been made by a Magistrate, and then entered by a Registrar.[35]
40. There is no dispute about the competency of the State Magistrates Court to make the Residential Tenancy Order, or the fact of the making of that order in the terms set out above.
41. The paucity of evidence concerning the hearing of the Residential Tenancy Application and the making of the Residential Tenancy Order does not ultimately matter, for the making of the Residential Tenancy Order by the State Magistrates Court must mean that, as a matter of law, the State Magistrates Court was satisfied that:
    1. the Notice of Termination:
       1. was given by the second respondent (as well as Mrs Salhah);
       2. complied with, and was given in accordance with, the RT Act;[36] and
    2. Mr and Mrs Salhah did not give the Notice of Termination motivated by the fact that Ms Carter had taken steps to enforce her rights as a tenant,[37]

and it follows that:

100. the State Magistrates Court has, by means of the making of the Residential Tenancy Order, determined that Mr Salhah was not motivated to seek to have the Residential Tenancy Order made because Ms Carter sought to enforce her rights as a tenant;

4. the Residential Tenancy Order represents a final decision, for the purposes of the RT Act,[38] and the Court notes that it has not been appealed; and
5. the parties affected by the Residential Tenancy Order, Mr Salhah and Ms Carter, are the same persons who are parties to these proceedings, and TimeConti Sheffield, who are the other respondent to these proceedings, are Mr Salhah’s “privy” for the purposes of the application of the doctrine of issue estoppel.[39]

42. Therefore, all of the conditions for issue estoppel with respect to the questions of:
    1. whether the Notice of Termination was complied with, and was given in accordance with, the RT Act; and
    2. Mr Salhah’s motivation in giving the Notice of Termination,

have been satisfied. It follows therefore that in relation to:

100. paragraph 6 of the Amended Statement of Claim, the grounds were not spurious, and indeed no grounds were required under the RT Act to give the Notice of Termination in its terms to Ms Carter;[40] and

4. paragraph 7 of the Amended Statement of Claim, there was no malicious act nor lack of good grounds in the giving of the Notice of Termination.

43. Given these conclusions, the allegations in paragraphs 6 and 7 of the Amended Statement of Claim cannot be maintained.
44. The plea of res judicata requires an examination of the entire Amended Statement of Claim. It must first be observed that the Amended Statement of Claim is deficient in form and content, and significantly so. That is not unusual in this Court where, as appears to be the case here, the Amended Statement of Claim has been drawn by a self-represented litigant. It is nevertheless clear that Ms Carter has had an issue with the conduct of TimeConti Sheffield and Mr Salhah “throughout the tenancy”.[41] It appears that Ms Carter says that the misleading and deceptive conduct included the failure and neglect of TimeConti Sheffield “to honour various undertakings previously given to ... [Ms Carter]”,[42] with “previously” relating to a time prior to 28 January 2010 when an “agent” for TimeConti Sheffield undertook a rental inspection of the Property.[43]
45. There is also a grab-bag of alleged breaches of the TP Act set out at particular G of the Amended Statement of Claim.
46. Albeit not in a particularly satisfactory manner, the Amended Statement of Claim and Particulars do allege misleading and deceptive conduct unrelated to the misleading and deceptive conduct claimed by Ms Carter in relation to the Notice of Termination, as well as other alleged breaches of the TP Act, which appear as “Particulars”, but which are in fact unparticularised, and at least some of which might be very difficult to sustain both at law and in fact, on the evidence presently before the Court. Nevertheless, paragraphs 6 and 7 of the Amended Statement of Claim aside,[44] the other matters “pleaded” in the Amended Statement of Claim, and, in particular, the allegation of misleading and deceptive conduct “throughout the tenancy” were not the subject of any consideration whatsoever by the State Magistrates Court in making the Residential Tenancy Order. This renders untenable TimeConti Sheffield’s assertion that the Residential Tenancy Order means that the subject matter of Ms Carter’s claim is res judicata. Therefore TimeConti Sheffield’s claim with respect to res judicata must fail.

Paragraph 10 of the Amended Statement of Claim

Claim made on behalf of family

47. The third order sought by TimeConti Sheffield is as follows:
    • 3. Further or in the alternative, the proceedings be stayed or dismissed in relation to any claim for relief in the proceedings to the extent to which it is founded upon the matters set out in paragraph 10 of the amended statement of claim and purports to make a claim on behalf of the applicant’s family, by reason of the fact that the applicant has no reasonable prospect of successfully prosecuting that claim.
48. Paragraph 10 of the Amended Statement of Claim provides as follows:
    • 10. The conduct on behalf of the respondents throughout the tenancy, have caused the applicant and her family to suffer injury, pain and suffering, humiliation, embarrassment and stress.
49. TimeConti Sheffield submits that the extent to which paragraph 10 of the Amended Statement of Claim purports to make a claim on behalf of Ms Carter’s family is unmaintainable as only Ms Carter is a party to the action.
50. Ms Carter submitted at the hearing that she would like the opportunity to add her children as parties to the proceeding.
51. At this stage, the allegations in relation to Ms Carter’s family (which the Court understands to mean the children) cannot succeed, because, as submitted by TimeConti Sheffield, the children are not parties.
52. The Court is therefore of the view that the proceedings cannot, as presently pleaded in paragraph 10 of the Amended Statement of Claim, involve Ms Carter’s “family”, and in that regard are therefore unmaintainable.
53. It is, however, possible for Ms Carter to add her children as parties to the matter on application. Obviously, the success of that application would depend upon whether the children have an action which is maintainable in their own right. In Pritchard v Racecage Pty Ltd & Ors[45] the Full Court of the Federal Court held that a wife and her children could suffer loss or damage within the meaning of s.82 (as it then stood) or s.87 of the TP Act, and were therefore not excluded from suffering loss or damage suffered by reason of the death of any person, in that case their husband and father.[46] In order for the children to be joined as applicants it would be necessary for Ms Carter to apply for that to be done, and to further amend the Amended Statement of Claim to plead necessary facts.

Claim for relief

54. The fourth order sought is as follows:
    • 4. Further or in the alternative, the proceedings be stayed or dismissed in relation to any claim for relief in the proceedings to the extent to which it is founded upon the matters set out in paragraph 10 of the amended statement of claim and purports to make a claim in respect of humiliation, embarrassment and stress by reason of the fact that that claim for relief has no reasonable prospect of succeeding.
55. TimeConti Sheffield submits that Ms Carter’s claim for relief due to humiliation, embarrassment and stress has no reasonable prospect of succeeding by virtue of s.5T of the Civil Liability Act 2002 (WA).[47] TimeConti Sheffield submits that the effect of s.5T is that a party must prove that they have a recognised psychiatric illness by reason of some breach of a duty of care before a court can make an award of personal injury damages.
56. TimeConti Sheffield further submits that Ms Carter’s claim for personal injury damages, as a result of a contravention of s.52 of the TP Act is unmaintainable because s.82(1AAA)(b) of the TP Act does not allow for such damages to be awarded.
57. Section 82(1AAA) of the TP Act provides as follows:
    • [Where damages may not be recovered] A person who suffers loss or damage by conduct of another person may not recover the amount o f the loss or damage by an action under subsection (1) to the extent to which:
      • (a) the action would be based on the conduct contravening a provision of Division 1 of Part V; and
      • (b) the loss or damage is, or results from, death or personal injury; and
      • (c) the death or personal injury does not result from smoking or other use of tobacco products.
58. In Racecage the Federal Court held that the word “injury” included bodily or personal injury, and that it extended to other forms of harm. Therefore, the widow and children of a race official killed during a car rally were not precluded from taking proceedings for contravention of s.52 and relief under s.82 of the TP Act, as the TP Act then stood.[48] In Racecage the loss and damage alleged included the wife’s loss of consortium of her husband, grief and other emotional distress suffered by the wife and her children, and the children’s loss of the parental guidance and care of their father. The Federal Court accepted that it was open to prove injury, loss and damage by reason of those matters.[49]
59. The effect of s.82(1AAA) of the TP Act, which was introduced in 2006, is, however, to preclude claims for relief for alleged personal injury arising from an alleged contravention of s.52 of the TP Act. Damages for personal injuries may be claimed as relief under Part VIB of the TP Act, but Part VIB of the TP Act does not apply to proceedings under s.52 of the TP Act.[50] It is therefore not possible for Ms Carter to claim damages for “pain and suffering, humiliation, embarrassment and stress” as claimed in paragraph 10 of the Amended Statement of Claim.
60. The conclusion reached with respect to s.82(1AAA)(b) of the TP Act makes it unnecessary to have to consider the submission made with respect to the Civil Liability Act.
61. Ms Carter clarified at hearing that she is seeking damages as a result of the respondents not fulfilling their “duty” to “provide safe premises.”
62. The precise parameters of the claim and what is meant by “conduct on behalf of the respondents throughout the tenancy” and “a duty” to “provide safe premises” is not clear. It is possible that it might include matters which are not personal injuries, and it might, for example, allege injury, being loss or damage, as a consequence of conduct which constitutes a breach of the Tenancy Agreement. That might constitute loss or damage for the purposes of a misleading and deceptive conduct claim, assuming that an appropriate contractual representation is relied upon, and the loss or damage was proven.[51] However, if this is what is intended, it is not readily discernible from the Amended Statement of Claim as presently pleaded.
63. Ms Carter’s claim is not therefore maintainable in relation to the “pain and suffering, humiliation, embarrassment and stress” referred to in paragraph 10 of the Amended Statement of Claim. At this stage, however, the Court is not prepared to conclude that the alleged misleading and deceptive conduct does not extend to the suffering of “injury” constituting “loss and damage” for the purposes of s.82 of the TP Act. That is not only because the words “loss or damage” are wide in their operation,[52] but also because it is not desirable to do so at this stage because the circumstances of the case are not so clear as to be able to satisfactorily conclude that Ms Carter’s claim of “injury” cannot be sustained, and it is therefore not appropriate to deal with this aspect of the matter summarily.[53] The Court is not to be taken as minimising the difficulties facing Ms Carter on the Amended Statement of Claim as it now stands, but at this stage the claim for s.82 relief in respect of “injury” cannot be foreclosed.[54]
64. The Court has not considered whether the associated jurisdiction of the Court might be invoked in respect of this aspect of the matter.[55]

Conclusion on TimeConti Sheffield’s Application in a Case

65. TimeConti Sheffield has been:
    1. successful in its claim with respect to issue estoppel;
    2. unsuccessful in its claim with respect to res judicata;
    100. successful in relation to the claim with respect to Ms Carter’s family, but only for present purposes, and subject to the outcome of any future application by Ms Carter to join her children as applicants; and
    4. partly successful and partly unsuccessful with the claim that s.82(1AAA) of the TP Act precludes the relief claimed by Ms Carter.
66. In the circumstances, the question arises as to whether it is better for the Court to make orders dismissing parts of Ms Carter’s claim, or to simply allow Ms Carter to file a Further Amended Statement of Claim, and perhaps a Further Amended Application, taking into account the views expressed by the Court in these Reasons for Judgment. That is a matter in respect of which the Court will hear Ms Carter and TimeConti Sheffield at a future directions hearing once they have had an opportunity to read and consider the Court’s Reasons for Judgment.

Ms Carter’s Application in a Case

67. Ms Carter seeks the following orders:
    • 1. Dispensing of service of documentation on the second respondents, pursuant to Federal Magistrates Court Rules 2001, Order 6.14 and 6.15;
    • 2. That service of documentation on the first respondents to stand as being service on the second respondents;
68. Interlocutory orders are also sought but they are not sought in any different terms to those set out above.
69. The orders are sought on the following grounds:
    • 1. The first respondent at all material times was duly authorised to act as an agent of the second respondent.
    • 2. The second respondents are presently residing in Dubai.
    • 3. The first respondents have acted on behalf of the second respondents when filing an application for Court Order against the applicant, in the Magistrates Court.
    • 4. The first respondents state on the lease agreement with the applicant that the name and address of second respondents is care of the first respondents.

Service outside of the jurisdiction rules

70. Order 8, rr 3 and 4 of the FC Rules provide as follows:
    • 3 Application for leave to serve originating process outside Australia
    • (1) Service of an originating process on a person in a foreign country is effective for the purpose of a proceeding only if:
      • (a) the Court has given leave under subrule (2) before the application is served; or
      • (b) the Court confirms the service under subrule (5); or
      • (c) the person served waives any objection to the service by entering an appearance in the proceeding.
    • (2) The Court may give leave to a party to serve an originating process on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country, on such terms and conditions as it considers appropriate, if the Court is satisfied that:
      • (a) the Court has jurisdiction in the proceeding; and
      • (b) the proceeding is of a kind mentioned in rule 2; and
      • (c) the person seeking leave has a prima facie case for all or any of the relief claimed by the person in the proceeding.
    • Note 1 The law of a foreign country may permit service through the diplomatic channel or service by a private agent.
    • Note 2 Order 8A, Division 2 deals with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention.
    • (3) The evidence on an application for leave under subrule (2) must include the following:
      • (a) the name of the foreign country where the person to be served is or is likely to be;
      • (b) the proposed method of service;
      • (c) a statement that the proposed method of service is permitted by:
        • (i) if a convention applies – the convention; or
        • (ii) if the Hague Convention applies – the Hague Convention; or
        • (iii) in any other case – the law of the foreign country.
    • (4) Nothing in this rule prevents the Court from giving leave to a person to give notice, in a foreign country, of a proceeding in the Court on the basis that giving the notice takes the place of serving the originating process in the proceeding.
    • (5) If an originating process was served on a person in a foreign country without the leave of the Court, the Court may, by order, confirm the service if the Court is satisfied that:
      • (a) paragraphs (2) (a), (b) and (c) apply to the proceeding; and
      • (b) the service was permitted by:
        • (i) if a convention applies – the convention; or
        • (ii) if the Hague Convention applies – the Hague Convention; or
        • (iii) in any other case – the law of the foreign country; and
      • (c) the failure to apply for leave is sufficiently explained.

Substituted service rules

71. Rules 6.14 and 6.15 of the FMC Rules provide as follows:
    • 6.14 Substituted service
    • (1) If, for any reason, it is impracticable to serve a document in a way required under this Part, the Court may make an order dispensing with service or substituting another way of serving the document.
    • (2) The Court may specify the steps to be taken for bringing the document to the attention of the person to be served.
    • (3) The Court may specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.
    • 6.15 Matters to be taken into account
    • When making an order for dispensing with service or for substituted service, the Court may have regard to:
    • (a) whether reasonable steps have been taken to attempt to serve the document; and
    • (aa) whether it is likely that the steps that have been taken have brought the existence and nature of the document to the attention of the person to be served; and
    • (b) whether the person to be served could become aware of the existence and nature of the document by means of advertising or another means of communication that is reasonably available; and
    • (c) the likely cost to the party serving the document, the means of that party and the nature of the proceedings; and
    • (d) any other relevant matter.
72. Ms Carter relevantly deposed to the following:
    1. at all material times TimeConti Sheffield was duly authorised to act as an agent for Mr Salhah;
    2. the Tenancy Agreement and State Magistrates Court documents provide the name and address for Mr Salhah to be care of TimeConti Sheffield;
    100. TimeConti Sheffield has repeatedly sent correspondence to her stating that they are in constant contact with Mr Salhah, and as such it is likely that Mr Salhah has been informed by TimeConti Sheffield of the existence and nature of the documents in these proceedings, especially as TimeConti Sheffield are acting as their agents; and
    4. as Mr Salhah resides in Dubai, considerable costs would be borne by her should she have to go through the lengthy procedures for international service. She is a student and would be unable to finance this.[56]
73. Ms Carter was given leave to file any application for leave to serve originating process and any other documents on the second respondent under O 8, rr 3 and 4 of the FC Rules by 15 July 2010. That was not done. Instead, an application in a case was filed by Ms Carter on 8 July 2010 seeking orders for substituted service pursuant to rr.6.14 and 6.15 of the FMC Rules. To obtain an order for substituted service on a respondent who is outside of the jurisdiction, overseas, an applicant must have made an application to serve them overseas, have attempted to have done so, and arguably been unsuccessful before an order for substituted service outside of the jurisdiction can be made. The Federal Court has previously stated that where respondents are out of Australia it is not appropriate to consider an order under O 7, r 9 of the FC Rules for substituted service unless some leave is at least obtained to serve the proceedings outside the jurisdiction pursuant to O 8 of the FC Rules.[57] This has been put as follows:
    • “...so long as leave can be obtained to serve a respondent out of the jurisdiction, once such leave has been obtained, the Court’s discretion to order service pursuant to such leave by substituted service is enlivened.”[58]
74. Ms Carter revealed, during the course of the hearing, that TimeConti Sheffield had provided her with an address for Mr Salhah, pursuant to Order 1 of the Court’s Orders of 1 July 2010. That address is a PO Box address in Amman, Jordan. Ms Carter revealed that, since having been provided with this address, she has made no attempt to serve documents or contact Mr Salhah at that PO Box address.
75. Ms Carter:
    1. has made no application seeking leave of the Court to serve the originating process;
    2. put no evidence put before the Court as to what the laws of the relevant country provide with respect to service; and
    100. made no evident attempts to serve documents on Mr Salhah at any address other than that of TimeConti Sheffield.
76. The Court does not accept that the mere difficulty in engaging in the process prescribed by Order 2 of the Court’s Orders of 1 July 2010 is sufficient reason for Ms Carter not to have complied with that Order. In any event, the fact that there is no evidence of any attempt to comply means that it is not possible for the Court to assess whether or not it is impracticable to serve relevant documents,[59] or to further consider the other matters to be taken into account when making an order for substituted service.[60]
77. The matters set out above are sufficient to enable the Court to conclude that Ms Carter’s application for substituted service on Mr Salhah, to be effected by way of service on TimeConti Sheffield, ought not succeed.
78. The Court notes that there has been no application by Ms Carter to extend time for compliance with Order 2 of the Court’s Orders of 1 July 2010.

Conclusion on Ms Carter’s Application in a Case

79. Ms Carter’s application for substituted service will be dismissed.

Respondency

80. Various of Ms Carter’s court documents in this matter cite the second respondent as Mr Salhah and Mrs Salhah.
81. An examination of the original application and statement of claim filed in the Federal Court shows that Mr Salhah was named as the second respondent. Ms Carter filed an affidavit in which she included Mrs Salhah as the second respondent as well as Mr Salhah. When the Federal Court order was made on 24 June 2010 it listed Mr Salhah as the second respondent, and it was that matter which was transferred to this Court. Likewise, in the first order made in this Court on 1 July 2010, and again on 30 July 2010, Mr Salhah is named as the second respondent. Ms Carter has continued to file court documents in this Court listing Mrs Salhah as a second respondent along with Mr Salhah. It is relevant to note that the Property is in the name of Mr and Mrs Salhah as joint tenants and that the Residential Tenancy Order lists both Mr and Mrs Salhah as applicants.
82. There has been no application by Ms Carter to add Mrs Salhah as a respondent in this matter.

Conclusion

83. It follows from the Court’s reasons set out above that:
    1. Ms Carter’s application in a case filed on 8 July 2010 must be dismissed, and there will be an order accordingly;
    2. TimeConti Sheffield’s application in a case filed 22 July 2010 will be adjourned to a future directions hearing to enable Ms Carter and TimeConti Sheffield to make appropriate submissions concerning the necessary order or orders to be made; and
    100. the matter generally should be adjourned to a future directions hearing.
84. The question of the costs of both of the applications in a case considered herein ought also be adjourned to a future directions hearing
85. The Court notes that Order 2 of the Court’s Orders of 30 July 2010 is still operative, and it ought not be discharged without an express order of this Court.

I certify that the preceding 85Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !eighty-fiveeighty-five (85) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date: 4 February 2011

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[1] “TP Act”.
[2] “the Property”.
[3] “Tenancy Agreement”.
[4] “State Magistrates Court”.
[5] Residential Tenancies Act 1987 (WA), s.64 (“RT Act”).
[6] “Residential Tenancy Application”.
[7] “Residential Tenancy Order”.
[8] “FM Act”.
[9] “FC Act”.
[10] [1949] HCA 1; (1949) 78 CLR 62 at 91-92 per Dixon J.
[11] [1964] HCA 69; (1964) 112 CLR 125 at 129-130 per Barwick CJ.
[12] George v Fletcher [2010] FCAFC 53 at para.75 per Ryan and Logan JJ citing White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 at 310 per Lindgren J; [2007] FCA 511 at paras.50-54 per Lindgren J; and paras.99-105 per Marshall J, and in particular para.102 citing Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 at 387-388 per Rares J; [2008] FCAFC 60 at para.45 per Rares J; Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at para.15 per Heerey J.
[13] “FMC Rules”.
[14] George at para.75 per Ryan and Logan JJ.
[15] Balding v Ten Talents Pty Ltd [2007] FMCA 145; (2007) 162 IR 17 at 24 per Lucev FM; [2007] FMCA 145 at
paras.15-18 per Lucev FM.
[16] “FC Rules”.
[17] Mann v The Northern Territory News (No 3) (unreported, Supreme Court of the Northern Territory of Australia, Asche CJ, Kearney and Rice JJ, 6 May 1988) at page 35 per Kearney J (of the AustLII version of the unreported judgment).
[18] Cooper & Ors v Keith W Allan & Associates and Kallen Nominees Pty Ltd (1996) 69 IR 238 at 243-244 per Millane JR..
[19] Dawson v Daqui Investments Pty Ltd (unreported, Industrial Relations Court of Australia, Ritter JR, 25 November 1996) at page 6 (of the AustLII version of the judgment).
[20] Geary Nominees Pty Ltd v Pargas Nominees Pty Ltd & Ors (1986) 7 IPR 169 at 175 per Toohey J (“Geary Nominees”).
[21] Fair Work Ombudsman v Nerd Group Australia Pty Ltd & Anor [2010] FMCA 569; (2010) 197 IR 431 at 437-438 per Lucev FM; [2010] FMCA 569 at para.20 per Lucev FM (“Nerd Group Australia”); FM Act, ss.3 and 42 and FMC Rules, r.1.03.
[22] Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82; [2006] WASC 281; Laing O’Rourke (BMC) Ltd (formerly Barclay Mowlem Construction Ltd) v Dampier Port Authority [2007] WASC 87.
[23] See D.A. Ipp, “Lawyers’ Duties to the Court” (1998) 114 LQR 63 at 65, 85 and 97.
[24] Nerd Group Australia IR at 436 per Lucev FM; FMCA para.16 per Lucev FM (and authorities there cited).
[25] JD Heydon, Cross on Evidence. Seventh Australian Edition (Sydney: LexisNexis Butterworths, 2004) paras. 5025, 5030 and 5040 (“Cross on Evidence”).
[26] Cross on Evidence, paras.5025 and 5070.
[27] Blair v Curran (1939) 62 CLR 464.
[28] Hoystead v Federal Commissioner of Taxation (1925) 37 CLR 290.
[29] Carl-Zeiss-Stiftung v Rayner & Keeler Ltd (No 2) [1966] 2 All ER 536 at 565 per Lord Guest.
[30] “Mr Polini’s Affidavit”.
[31] “Ms Carter’s 8 July 2010 Affidavit”.
[32] RT Act, s.13A(1).
[33] RT Act, s.26(1).
[34] RT Act, s.13A(2)(b).
[35] Magistrates Court Act 2004 (WA), s.28(1)(b).
[36] RT Act, s.71(2)(a).
[37] RT Act, s.71(3)(b)(i).
[38] RT Act, s.26(1).
[39] Cross on Evidence, para.5175
[40] RT Act, s.64.
[41] Amended Statement of Claim, para.10, and Particulars F and G.
[42] Amended Statement of Claim, Particular B.
[43] Amended Statement of Claim, Particulars A and B.
[44] See paras.42-43 above.
[45] (1997) 72 FCR 203 (“Racecage”).
[46] Racecage at 218-219 per Branson J (with whom Spender J at 205 and Olney J at 206 agreed).
[47] “Civil Liability Act”.
[48] Racecage at 217-218 per Branson J.
[49] Racecage at 217-218 per Branson J.
[50] TP Act, s.87E(1)(a).
[51] Campbell v Back Office Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 at 322 per French CJ; [2009] HCA 25 at para.35 per French CJ; Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Limited (1993) 42 FCR 470 at 505-506 per Lockhart and Gummow JJ; Coles Supermarkets Australia Pty Ltd v FKP Ltd [2008] FCA 1915 at paras.67-69 per Gordon J; Mantova Holdings Pty Ltd v Caruso [2010] FMCA 682 at paras.112-118 per Lucev FM.
[52] Racecage at 217 per Branson J and authorities there cited.
[53] Young v Wyllie & Ors [2010] FCA 283; (2010) 86 IPR 84 at 106 per Moore J; [2010] FCA 283 at para.64 per Moore J.
[54] Geary Nominees at 174 per Toohey J.
[55] As to the Court’s associated jurisdiction see Skipworth v State of Western Australia (No. 2) (2008) 218 FLR 16; [2008] FMCA 544; Welsh v Allblend Holdings Pty Ltd [2010] FMCA 281.
[56] Ms Carter’s 8 July 2010 Affidavit, paras.4-9.
[57] Australian Competition & Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035 at paras.18 and 24 per French J; see also Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310 at 329 per Dixon CJ, Williams and Webb JJ.
[58] Australian Competition & Consumer Commission v Chaste Corp Pty Ltd (in liq) [2002] FCA 1183 at para.11 per Drummond J.
[59] FMC Rules, r.6.14(1).
[60] FMC Rules, r.6.15.