Obieta v Consumer, Tenancy and Trading Tribunal (No 2) [2009] NSWCA 249 (6 August 2009)

Last Updated: 17 August 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Obieta v Consumer, Tenancy and Trading Tribunal (No 2) [2009] NSWCA 249


FILE NUMBER(S):
40192/09

HEARING DATE(S):
6 August 2009

JUDGMENT DATE:
6 August 2009

EX TEMPORE DATE:
6 August 2009

PARTIES:
Lina Socorro OBIETA (applicant)
CONSUMER, TRADER AND TENANCY TRIBUNAL NSW (respondent)

JUDGMENT OF:
Hodgson JA Basten JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 108/2009

LOWER COURT JUDICIAL OFFICER:
Judicial Registrar McDonald

LOWER COURT DATE OF DECISION:
29 May 2009


COUNSEL:
In person (applicant)
A JOHNSON (respondent)

SOLICITORS:
--- (applicant)
IV Knight Crown Solicitor (respondent)

CATCHWORDS:
PROCEDURE – Appeal to District Court from CTTT – Whether jurisdiction of District Court extends to judicial review under the Consumer, Trader and Tenancy Tribunal Act 2001, s 65.

LEGISLATION CITED:
Civil Procedure Act 2005 s 3
Consumer, Trader and Tenancy Tribunal Act 2001, s 65, s 67
District Court Act 1973, s 4, s 44
Supreme Court Act 1970, s 48, s 53 and cl 9 of the fourth schedule
Uniform Civil Procedure Rules 6.29 and 50.52

CATEGORY:
Procedural and other rulings

CASES CITED:
Cook v Head [1976] 1 NSWLR 176
Dobell v Blue Haven Pools and Spas Pty Limited [2009] NSWCA 77
Obieta v Consumer, Tenancy and Trading Tribunal [2009] NSWCA 220

TEXTS CITED:


DECISION:
1. Grant leave to appeal from the order of the judicial registrar made 29 May 2009, strictly limited to the question whether the District Court has jurisdiction to grant relief under s 65 of the CTTT Act.
2. Notice of appeal adding Women’s Housing Company Limited as a respondent to be filed within fourteen days with the grounds of appeal limited to the issue I have identified.
3. Refer the applicant to the registrar for reference to a barrister on the pro bono panel for legal assistance for representation generally in the conduct of the appeal.
4. The hearing of the appeal expedited.
5. The filing of appeal books be dispensed with, but there be added to the white book the reasons of the judicial registrar and submissions directed to the specific point identified in these reasons.
6. The costs of the application for leave to be costs in the appeal.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40192/09

DC 108/2009

HODGSON JA

BASTEN JA

6 AUGUST 2009

Lina Socorro OBIETA v CONSUMER, TRADER & TENANCY TRIBUNAL NSW (No 2)

Judgment

1 HODGSON JA: On 29 May 2009, a judicial registrar in the District Court made an order that the respondent, the CTTT, be removed as a party to District Court proceedings 108 of 2009. The applicant seeks leave to appeal from that decision.

2 The grounds of appeal sought to be relied on raise a number of issues, including Uniform Civil Procedure Rules 6.29 and 50.52, lack of evidence supporting the CTTT’s application to be removed, bias and denial of procedural fairness, failure to take into account that the CTTT had already filed a submitting appearance, error of law in following Dobell v Blue Haven Pools and Spas Pty Limited [2009] NSWCA 77, and failure of the judicial registrar to provide reasons for her decision.

3 Dealing first with UCPR 50.52, the CTTT is a court within that provision because “court” is defined in s 3 of the Civil Procedure Act 2005 to include a tribunal, so the case does not fall within rule 50.52. I might add that this does not have the consequence that the Tribunal is not a “person” within rule 6.29.

4 So far as lack of evidence is concerned, the orders made on the basis that the proceedings in the District Court were an appeal under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the CTTT Act), a finding which turns on a question of law and the jurisdiction of the District Court and not on evidence. If the proceedings in the District Court are an appeal under s 67 of the CTTT Act and nothing more, then in my opinion it is not reasonably arguable that the view expressed in Dobell is wrong. For appeals under s 67, in my opinion, it is plainly not appropriate to join as a party the tribunal from whose decision the appeal is brought. This view is not in my opinion affected by the circumstance that there have been a number of cases in the District Court in which the CTTT has been joined.

5 In my view, the previous filing of a submitting appearance by the CTTT would not be a sound basis for continuing an inappropriate joinder of a party, although it could be relevant to costs. I note that the judicial registrar made no order as to costs.

6 For those reasons, in my opinion, if the District Court proceedings are as a matter of law limited to being an appeal under s 67, there is no reasonably arguable case for an order different from that made by the judicial registrar; and in my opinion the applicant's allegations of bias, denial of procedural fairness and lack of reasons of the judicial registrar could not in those circumstances justify the grant of leave to appeal.

7 So apart from the matter to which I will come, I would refuse leave to appeal.

8 However there is a question that could possibly justify the grant of leave, namely the question whether the proceedings in the District Court could extend to the grant of judicial review, as permitted by s 65 of the CTTT Act; because if judicial review could be sought in the District Court, and if relief in the nature of the judicial review was sought in the proceedings, then the tribunal would be a proper party.

9 It seems clear that applications for judicial review in the Supreme Court are assigned to the Common Law Division, except in relation to specified courts or tribunals referred to in s 48 of the Supreme Court Act 1970, which do not include the CTTT (see s 53 and cl 9 of the fourth schedule of the Supreme Court Act). Thus it might be argued that s 44 of the District Court Act 1973 gives the District Court jurisdiction to hear and dispose of an application for judicial review in relation to the CTTT.

10 There are some difficulties with that argument. “Action” is defined in s 4 of the District Court Act to mean action in the court, with certain exceptions; and it can be argued that it does not extend to applications for judicial review. That argument might be supported by statements in Cook v Head [1976] 1 NSWLR 176 at 180 and 185-187. Sections 76A and 77 of the District Court Act may also suggest that action in s 44 is limited to ordinary litigation of a kind that could possibly be tried with a jury.

11 On the other hand, the use of the words “if any” in relation to the amount claimed in s 44(1)(a)(ii) indicates that action is not limited to claims for money; and there is the consideration that if the District Court cannot give relief under s 65 of the CTTT Act, there are the procedural inconveniences referred to by Justice Basten in paras 6-9 of his earlier decision in these proceedings: see Obieta v Consumer, Tenancy and Trading Tribunal [2009] NSWCA 220.

12 The question whether the District Court can grant relief under s 65 of the CTTT Act, as well as under s 67, is an important question, and in my opinion it cannot be said not to be reasonably arguable. I would propose granting leave to appeal strictly limited to this question. If the question were resolved in favour of the position that the District Court can grant relief under s 65 on the basis of denial of procedural fairness, which is a matter alleged by the applicant, the result would be that the CTTT would properly remain a party to the proceedings.

13 If such an appeal were upheld, it would mean that the other party in the District Court, the Women’s Housing Company Limited, would be facing proceedings in the District Court under s 65 as well as s 67, so it should be included as a respondent to the appeal.

14 Because of the general significance of the question, and because there may be a question whether it is desirable for the CTTT to participate in adversary litigation, the Crown Solicitor acting for the CTTT might consider whether instructions might be sought from the Attorney General for an application by the Attorney General for leave to appear in the proceedings.

15 The limited question on which leave would be granted is a difficult and technical question of law. I would be prepared to refer the applicant for legal assistance under UCPR 7.36 In relation to the matter.

16 For those reasons, the orders I propose are these:

1. Grant leave to appeal from the order of the judicial registrar made 29 May 2009, strictly limited to the question whether the District Court has jurisdiction to grant relief under s 65 of the CTTT Act.

2. Notice of appeal adding Women’s Housing Company Limited as a respondent to be filed within fourteen days with the grounds of appeal limited to the issue I have identified.

3. Refer the applicant to the registrar for reference to a barrister on the pro bono panel for legal assistance for representation generally in the conduct of the appeal.

4. The hearing of the appeal expedited.

5. The filing of appeal books be dispensed with, but there be added to the white book the reasons of the judicial registrar and submissions directed to the specific point identified in these reasons.

6. The costs of the application for leave to be costs in the appeal.

17 BASTEN JA: I agree.

18 HODGSON JA: So those are the orders of the Court, and the Court will now adjourn.

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LAST UPDATED:
14 August 2009