FEDERAL COURT OF AUSTRALIA Turner t/as Classic Gourmet Sausages v Leda Commercial Properties Pty Ltd [2000] FCA 389 PRACTICE AND PROCEDURE – addition of parties – whether Federal Court sitting on an appeal from the Supreme Court of the Australian Capital Territory had power to order that a person not a party before the Supreme Court be added as a party to the proceedings in that Court and also to the appeal. PRACTICE AND PROCEDURE – summary dismissal of proceedings before the ACT Tenancy Tribunal – whether Tribunal erred in dismissing proceedings where the claimant in the Tribunal wished to adduce evidence in support of claim that landlord's conduct in terminating lease was harsh and oppressive and the real nature of that evidence was unclear. Tenancy Tribunal Act 1994 (ACT) ss 3, 6, 33, 35, 36, 41, 42, 58, 60 Magistrates Court (Civil Jurisdiction) Act 1982 (ACT) ss 54, 139 Federal Court of Australia Act 1976 (Cth) ss 24, 28 General Steel Industries Inc v Commissioner for Railway (NSW) (1964) 112 CLR 125 cited Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 referred to Wickstead v Browne (1992) 30 NSWLR 1 referred to Teoh v the Minister of Immigration, Local Government and Ethnic Affairs (1994) 121 ALR 436 referred to Cuthbertson v Hobart Corporation (1921) 30 CLR 16 referred to S (a minor) v Special Educational Needs Tribunal [1996] 1 WLR 382 discussed Maiden v Maiden (1908) 7 CLR 727 cited Dey v Victorian Railways Commissioner (1949) 78 CLR 62 cited Faessler v Neale (unreported, Drummond J, 20 July 1994) referred to Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 124 ALR 685 referred to Webster v Lampard (1993) 177 CLR 598 referred to Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 referred to Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 169 ALR 515 cited IAN TURNER and LYN TURNER t/as CLASSIC GOURMET SAUSAGES (ACN 063 906 883) v LEDA COMMERCIAL PROPERTIES PTY LIMITED (ACN 008 613 447) A 60 of 1999 GALLOP, HILL and GYLES JJ 3 APRIL 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 60 OF 1999 ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: CLASSIC GOURMET SAUSAGES PTY LIMITED (ACN 063 906 883) FIRST APPELLANT IAN TURNER AND LYN TURNER T/A CLASSIC GOURMET SAUSAGES SECOND APPELLANT AND: LEDA COMMERCIAL PROPERTIES PTY LIMITED (ACN 008 613 447) RESPONDENT JUDGES: GALLOP, HILL AND GYLES JJ DATE OF ORDER: 3 APRIL 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Gourmet Sausages Pty Limited be added as a party to the appeal. 2. The appeal of Gourmet Sausages Pty Limited be allowed. 3. The notice of dispute be remitted to the ACT Tenancy Tribunal to be heard in accordance with law. 4. The appeal so far as it is brought by Mr and Mrs Turner be dismissed. 5. The respondent pay the costs of the appellants to the appeal to the Supreme Court of the Australian Capital Territory. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 60 OF 1999 ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: CLASSIC GOURMET SAUSAGES PTY LIMITED (ACN 063 906 883) FIRST APPELLANT IAN TURNER AND LYN TURNER T/A CLASSIC GOURMET SAUSAGES SECOND APPELLANT AND: LEDA COMMERCIAL PROPERTIES PTY LIMITED (ACN 008 613 447) RESPONDENT JUDGES: GALLOP, HILL AND GYLES JJ DATE: 3 APRIL 2000 PLACE: SYDNEY REASONS FOR JUDGMENT GALLOP J 1 This is an appeal against the judgment of a single judge of the Supreme Court of the Australian Capital Territory delivered on 19 July 1999. The appeal was instituted in the name of Ian Turner and Lyn Turner t/as Classic Gourmet Sausages, appellant, and Leda Commercial Properties Pty Limited ACN 008 613 447, respondent. The appeal to this Court is from a decision of the Supreme Court hearing an appeal from the ACT Tenancy Tribunal (the Tribunal). Notice of appeal to this Court was filed on 9 August 1999. 2 In the course of hearing the appeal to this Court, issues arose concerning the competency of the appeal to the Supreme Court of the Australian Capital Territory and the appeal to this Court arising out of various identifications of the appellant both in the Supreme Court and in this Court. The appeal to the Supreme Court arose out of a dispute between the parties to a lease of Shop 71b Tuggeranong Hyperdome. The lease was dated 7 December 1994 for a period of five years commencing 1 September 1994. The parties to that lease were Leda Commercial Properties Pty Limited ACN 008 613 447 as lessor and Classic Gourmet Sausages Pty Limited ACN 063 906 883 as lessee. The lessee was not named as such in the proceedings in the Tribunal or in the appeal to the Supreme Court. 3 An application was lodged with the Tribunal by Ian Turner and Lyn Turner t/as Classic Gourmet Sausages on 19 February 1998. In that application the "tenant" sought the following interim orders: 1. that the respondent be ordered not to re-enter the premises of Classic Gourmet Sausages at Shop 71b, Tuggeranong Hyperdome, and 2. that the respondent be restrained from taking any action to terminate the occupancy until further order. 4 In the appeal to this Court the appellant was given leave to supplement the Appeal Book by adding a copy of the application dated 19 February 1998. The application was mentioned before President Burns on the same day when Ms P Ayson appeared "as agent for the tenant". The application for interim orders was adjourned to 27 February 1998. A further application in the same terms as the application of 19 February 1998 appears to have been lodged and dated 27 February 1998. It is not clear from the papers why this occurred. 5 Those facts are recited by President Somes in his reasons for decision dated 17 December 1998. Otherwise they are not discernible from the Appeal Book in respect of the appeal to this court. 6 By notice of dispute dated 3 March 1998 application was made to the Tribunal established by s 60 of the Tenancy Tribunal Act 1994 (ACT). The name of the party lodging the dispute as described in the notice of dispute was "Ian and Lyn Turner t/as Classic Gourmet Sausages". The portion of the printed form used as the notice of dispute identified the party lodging the dispute as the "tenant". The particulars of the dispute alleged as follows: "1) The Respondent refused to give the Applicants time in which to pay arrears of rent 2) The Respondent re-entered the premises on 6 March 1998 without adequate warning. The conduct was harsh and oppressive, and unconscionable in that: a) The Applicants were willing, and had offered, to pay off arrears on terms similar to terms which the Respondent had granted to other tenants of the shopping centre in similar cases; b) (i) The Applicants were forced to sell off existing stock at reduced prices and thereby incurred a trading loss on that stock of approximately $10,000; (ii) The Applicants were unable to remove from the premises their fittings, including coolroom, coolroom panels, cabinets, roller doors, counters, signage and decor and other trade fittings with a combined value exceeded $10,000; (iii) The Applicants were unable to relocate the business to alternative premises and thereby lost the goodwill of the business; (iv) The Respondent subsequently leased the premises, including the fittings, being cabinets, counter, roller doors, signage and decor and other fittings and has received rent for them." 7 The application for interim orders originally filed on 19 February 1998, having been adjourned to 27 February 1998, was again listed before President Burns on that date when Ms Ayson again appeared as agent for the tenant. The application was adjourned until 5 March 1998. On that date, Ms Ayson again appeared. It was adjourned for a short time to enable Ms Ayson to obtain assistance from Mr Farrell. When Mr Farrell appeared, he sought "leave to assist Mr Turner". The landlord lodged an application dated 16 April 1998 seeking that the notice of dispute be dismissed. The first return date of the application to dismiss was 23 October 1998 when Mr Arthur of counsel announced his appearance "for the applicants, the Turners, in this matter". 8 There was a directions hearing on 25 November 1998 when Mr Farrell appeared and sought "leave to represent Mr Turner". The lessor was represented by Mr Brennan. President Burns reminded Mr Brennan that the application under consideration was that of the lessor to strike out the notice of dispute. In that context President Burns commented: "... I foresee difficulties in your present application to strike out and, in my opinion, the matter would be better dealt with by obtaining a hearing date and directions being given with respect to either the filing of affidavits or the provision of the names of those witnesses whom the applicant proposes to call by way of subpoena, so that you will then be prepared and even there may be some directions given for the applicant to file an affidavit in which he sets out what he understands to be the evidence that will be given by these witnesses, so that the respondent will be in a position to know what it is that these witnesses are to say within the understanding of the applicant and then they can meet that if they can. But, as I said, it is entirely a matter for the respondent whether the respondent continues with its present application." 9 Mr Brennan insisted both on seeking leave to file further affidavits and in proceeding with the strike-out application. 10 Ultimately, the application by the landlord to have the notice of dispute dismissed came on for hearing before President Somes on 1 December 1998. Mr Gates, solicitor, appeared for the respondent to the application and filed in court a notice of change of solicitor. That document was not reproduced in the Appeal Book. It is clear that in all those preliminary steps in the Tribunal the real lessee was not named as a party either to the notice of dispute or the application to dismiss it. 11 By notice of appeal dated 14 January 1999, the lessee purported to appeal to the Supreme Court against the decision of the Tribunal delivered on 17 December 1998. The notice of appeal is entitled Ian Turner, appellant, and Leda Commercial Properties, respondent. We were told by counsel for the appellant that Lyn Turner was added as an appellant in the Supreme Court, but the application to add her is not included in the Appeal Book. We were also told that the application was not opposed. Perusal of the Supreme Court file reveals that an amended notice of appeal dated 11 May 1999 sought, inter alia, an order "that the applicants in the Tribunal be Classic Gourmet Sausages Pty Limited ACN 063 906 883, Ian Turner and Lyn Turner. That the appellants in the Supreme Court be the same people". We were further informed that that application was never made on the hearing of the appeal, which must be correct. Again, the lessee was never named as an appellant to the Supreme Court. 12 In his reasons for judgment (para 31), his Honour adverted to the fact that the lessee had not been a party either to the notice of dispute or the application to dismiss it and that neither the appellants before the Supreme Court, the respondent nor the Tribunal "appeared to notice this egregious omission". It does not appear that any steps were taken by the appellant in the Supreme Court to apply to amend the name of the appellant into the name of the lessee, Classic Gourmet Sausages Pty Limited. Nor was any point taken in the Tribunal or the Supreme Court that the lessee was not a party. 13 By notice of appeal in this Court dated 9 August 1999, the appellant is described as Ian Turner and Lyn Turner t/as Classic Gourmet Sausages. By an amended notice of appeal dated 14 October 1999 the appellant is described in different terms, namely Classic Gourmet Sausages Pty Limited ACN 063 906 883, first applicant, and Ian Turner and Lynn Turner t/as Classic Gourmet Sausages, second applicant. 14 The respondent to this appeal contended that the appeal to the Supreme Court was incompetent, as is the appeal to this Court, and that the incompetence cannot be waived. 15 It is necessary to refer to the relevant provisions of the Tenancy Tribunal Act 1994. The preamble to the Act reads: "An Act to establish a Tenancy Tribunal and other special procedures for resolving disputes about certain types of leases, to provide for a Code of Practice about such leases and for related purposes." 16 Section 6(1)(b) reads, "(1) Subject to section 8, this Act applies to the following disputes: ... (b) a claim by a party to a lease that another party to the lease has engaged in harsh and oppressive conduct towards the first mentioned party (whether that conduct is unconscionable or not)" 17 By definition (s 3) "party" - "(a) in relation to a lease, means – (i) the owner; or (ii) the tenant; (b) ... (c) ... (c) ..." 18 Section 6(2) reads: "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." 19 It was common ground on the hearing of the appeal that the lease to which the dispute relates, being a five year lease, ceased to be in force more than three months prior to the hearing of the appeal. The lessee is therefore out of time so far as any future application is concerned. 20 Section 33 reads: "Each of the following is a party to a Tribunal hearing: (a) each party to the lease that is the subject of the hearing; (b) ... (d) ..." 21 Section 35 reads, "(1) The Tribunal shall hear each dispute referred to it by the Registrar. (2) The Registrar shall, at least 14 days before a hearing, give written notice to each person who he or she is satisfied has a sufficient interest in the dispute of the time, date and place of the hearing." The dispute was referred to the Tribunal by the Registrar. 22 Section 36 reads: "(1) Without limiting the matters to which the Tribunal may have regard for the purposes of making an order in relation to a dispute referred to in paragraph 6(1)(b), the Tribunal may have regard to any of the following matters: (a) the relative strengths of the bargaining positions of the owner and the tenant; (b) whether, as a result of conduct engaged in by the owner, the tenant was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the owner; (c) whether the tenant was able to understand any document relating to the lease; (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the tenant or a person acting on behalf of the tenant by the owner or a person acting on behalf of the owner in relation to the lease; (e) the circumstances under which the tenant could have acquired a lease on identical terms over similar premises from a person other than the owner; (f) the extent to which the owner's conduct towards the tenant was consistent with the owner's conduct in similar lease transactions between the owner and other like tenants; (g) the requirements of the Code; (h) the extent to which the owner unreasonably failed to disclose to the tenant – (i) any intended conduct of the owner that might affect the interests of the tenant; and (ii) any risks to the tenant arising from the owner's intended conduct (being risks that the owner should have foreseen would not be apparent to the tenant); (j) the extent to which the owner and the tenant acted in good faith. (2) An owner is not to be taken, for the purposes of this section, to have engaged in harsh, oppressive or unconscionable conduct by reason only of the referral of a dispute to the Tribunal. (3) ... 23 Section 41 reads, "The following persons may appear at a Tribunal hearing: (a) a party to the hearing; (b) a person to whom the Tribunal has granted leave to appear." 24 Section 42 reads, "A person who may appear at a hearing may be represented at the hearing by a legal practitioner or an agent." 25 The right of appeal to the Supreme Court is conferred by s 58 which reads, "(1) A party to a Tribunal hearing may appeal to the Supreme Court on a question of law from a decision of the Tribunal in that hearing. (2) An appeal by a person under subsection (1) shall be instituted no later than 28 days after the day on which a notice under section 55 is given to the person or within such further time as the Supreme Court (whether on, before or after that day) allows. (3) The Supreme Court shall hear and determine the appeal and may make any of the following orders: (a) an order affirming or setting aside the decision of the Tribunal; (b) an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court; (c) such other order as the Court considers appropriate." 26 As was developed in argument on the hearing of the appeal, it is clear that there was a dispute between the lessor and lessee. Notice of that dispute was given to the Registrar. The Registrar referred the dispute to the Tribunal and the lessor thereupon moved the Tribunal for dismissal of the notice of dispute. It would have been more appropriate for the notice of dispute to have been lodged by the lessee rather than Ian and Lyn Turner t/as Classic Gourmet Sausages, but it seems to me that the Tribunal was properly seized of the dispute. I agree with Hill J that both the landlord and the Tribunal treated the matter in the Tribunal as a dispute which had arisen between the landlord and the tenant. I agree also that it is unfortunate that the Tribunal did not rectify the names of the parties before it. 27 The difficulty arises in the appeal against the Tribunal's decision to the Supreme Court. As stated above, the appeal to the Supreme Court was originally brought by Ian Turner as appellant and Lyn Turner was added as an appellant later. It should have been brought in the name of the company. At least there should have been an application to the Supreme Court to name the lessee as the appellant in that Court. The amended notice of appeal dated 11 May 1999 foreshadowed the application for an order that the lessee be added. The terms of the application as set out in the amended notice of appeal were not entirely appropriate but the Supreme Court, having adverted to the fact that the lessee had not been a party either to the notice of dispute or the application to dismiss it, should, in my opinion, have dealt with the foreshadowed application. Otherwise, the appeal was not properly instituted pursuant to s 58 of the Act. Only the lessor or lessee had the right to appeal to the Supreme Court as a party and his Honour rightly noted that neither had instituted the appeal. Of course, the reason that his Honour did not deal with the standing of the appellant was that neither side adverted to it. But it was fundamental to the proper institution and conduct of the appeal. 28 I agree with Hill J that on this basis the appeal to the Supreme Court should have been an appeal by the company. The company could have been added as a party to the appeal instituted within time or could have been given an extension of time within which to lodge its own appeal. I agree also that no question of prejudice could have arisen had the Supreme Court extended the time in which the company could appeal and no question of prejudice arises before this Court. 29 I agree also that s28 of the Federal Court of Australia Act 1976 is sufficiently broad to confer power upon this Court to permit the Court at any time to order any document in a proceeding properly before the Court on appeal to be amended and, in this case, the notice of appeal in the Supreme Court of the Australian Capital Territory to be amended to allow the company to be added as a party. As the power is wide enough, there is nothing to suggest that it would not be in the interests of justice to allow such an amendment (see Teoh v Minister for Immigration (1994) 121 ALR 436 per Lee J at 445). DISMISSAL OF THE NOTICE OF DISPUTE – TRIBUNAL DECISION 30 In his reasons for judgment delivered by President Somes on 17 December 1998, he referred to the power of the Tribunal pursuant to s 54 of the Act to grant such relief as might be exercisable by the Magistrates Court under the Magistrates Court (Civil Jurisdiction) Act 1982 as if the Court had jurisdiction to hear the dispute. Section 139 of the Magistrates Court (Civil Jurisdiction) Act 1982 provides, "(1) Where, in any proceedings, it appears to the court, in relation to the proceedings generally or in relation to any claim for relief in the proceedings, that – (a) no reasonable cause of action is disclosed; or (b) the proceedings are – (i) frivolous or vexatious; or (ii) an abuse of the process of the court, the court may, on the application of the defendant or of its own motion, order that the proceedings be stayed or dismissed either generally or in relation to that claim for relief." 31 President Somes was satisfied that the Tribunal had power to dismiss the notice of dispute if the Tribunal was of the view, inter alia, that no reasonable cause of action was disclosed. He referred to the evidence before the Tribunal which consisted of an affidavit of Mr Turner being the only evidence adduced on behalf of the lessee. In that affidavit, Mr Turner deposed in support of the notice of dispute that the conduct of the lessor was harsh and oppressive and unconscionable as set out in the notice of dispute and that there may be available evidence from other persons in support of the lessee's claim. Mr Gates, who appeared for the lessee in the Tribunal, indicated to the Tribunal that none of the persons referred to in the affidavit of Mr Turner would attend Court until subpoenaed. Indeed, there was no evidence that any subpoenas returnable for the hearing date had been issued. The exchange between Mr Gates and the Tribunal was as follows: "THE PRESIDENT: And is that all you want to say in relation to the matter? MR GATES: Your Worship, probably just to reinforce a point there, the case relies on matters that we would ask you to take into account, certain matters set out in section 36 of the Act. The case relies – the applicant's case relies on certain witnesses giving evidence of conduct. Those witnesses are not freely available unless they are subpoenaed to appear because of agreements or other matters in which – those are all, with one exception, former tenants of the respondent. They are not free to appear unless subpoenaed and our case relies on a subpoena being issued. There are comments to that effect in paragraphs, I think, 6 to 13 of that affidavit. THE PRESIDENT: So, what does that all mean? MR GATES: Well, the applicant's case, as I said, turns on conduct of the respondent. That conduct relates to dealings with other tenants and comparisons to be made with other tenants. We can't bring those people forward at the moment, we can't provide affidavits because they are not available. THE PRESIDENT: So you say whatever I can make out of the affidavit, I make out of it. MR GATES: That is the best we can put it at the moment, your Worship. THE PRESIDENT: Well, you are not going to be able to put it any better at any time because it is over and out today, I would have thought. MR GATES: Unless we can bring those witnesses forward. THE PRESIDENT: Well, are they here? MR GATES: No, they are not. THE PRESIDENT: Well, then it looks like you have to rely upon what is on the affidavit then. All right, so that is all you want to say? MR GATES: There is one other matter. There are two other – there will be three other witnesses who have not been mentioned in the affidavit. We have – I am not quite sure how to deal with this. But these people have come forward and I have documentary evidence that they will come forward and give evidence of conduct. Their names are - - - THE PRESIDENT: Well unless they are here it does not interest me unduly, I would have thought Mr Gates. ..." 32 President Somes said at the conclusion of his reasons for judgment that, having considered the evidence before him, he could not "see how the tenants [sic] would ever be able to sustain such a position ... that the conduct of the landlord [sic] was harsh and oppressive, and unconscionable". He then said: "I can only deal with this application on the evidence before me and in my view the tenants had every opportunity at the hearing to produce any evidence which they wished to produce in order to resist the application put before the Tribunal by the landlord." 33 He then concluded that the lessee's claim disclosed "no reasonable cause of action" and that the notice of dispute was without merit. Accordingly he dismissed the notice of dispute. DISMISSAL OF THE APPEAL IN THE SUPREME COURT 34 In dismissing the incompetent appeal, his Honour upheld the Tribunal's decision to dismiss the notice of dispute. He referred to the principle propounded by the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ p 129: "The test to be applied has been variously expressed: "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them (the pleadings) to stand would involve useless expense". At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed." 35 His Honour also referred to Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365, and other authorities and held that the Tribunal had applied the correct test. His Honour then said: "Thus construed, the learned President is to be taken to have found that, on the material before him, assuming all facts asserted by the appellants had been found favourably to them, and all evidence available or pointed to as reasonably likely to be available, had been called, the appellants still had no seriously arguable claim for relief. Those assumptions could, however, only arise from the material actually adduced before the learned President. That included any material adduced by the respondent in so far as it gave rise to inferences favourable to the appellants, unless it unarguably contradicted assertions made by, or on behalf of, the appellants." 36 Later in his reasons, his Honour said: "Having regard to the numerous occasions upon which the lessee had been in default, the unkept promises it had made to remedy breaches and avoid future breaches, the fact that its impecuniosity was not due to any fault on the part of the respondent, that the respondent extended time for the remedy of breaches time and time again and that there appeared to be no reasonable prospect that the lessee would remedy its breaches of covenant within a reasonable time, it cannot, I think, be said to be arguable that the respondent had acted harshly and oppressively in determining this lessee's monthly tenancy, even if other tenants may, in the past, have been given greater indulgence for objectively more serious breaches of their lease obligations. To these considerations must be added the incapacity of the lessee to provide a satisfactory guarantee of the kind referred to in clause 21. That consideration renders a claim for relief even more unarguable than if the breaches of covenant had been confined to arrears of rent. If the lessee's bankers were not prepared to extend further credit to the lessee or the appellants, why should the respondent be expected to do so?" 37 He then considered submissions put to him by the lessee that President Somes had unfairly prevented the appellants from calling further evidence to support their case as to discrimination even though they sought no adjournment to do so and had failed, by 1 December 1998, notwithstanding previous opportunities, to do so. His Honour held that there was no substance in that and other contentions. Finally, his Honour returned to the relevant principle as set out above and said: "It was never necessary to establish as a fact that other tenants had been treated more favourably. The only issue was whether, even if it was so, that created a seriously arguable case for some relief being afforded the lessee in the circumstances." 38 He concluded that the appeal raised no issue capable of supporting an appeal under s 58(1) of the Act. 39 In my opinion, his Honour failed to apply appropriately the test laid down in General Steel Industries Inc v Commissioner for Railways (NSW) (supra) and other cases for the reasons expressed by Hill J. Admittedly the appellants failed to adduce the evidence to establish harsh, oppressive or unconscionable conduct and admittedly the foreshadowed evidence may not have carried the day for the appellants. But it was necessary to consider all the evidence including evidence foreshadowed but not then adduced before dismissing summarily the appellants' notice of dispute. By launching the application to strike out, the respondent undertook the burden of establishing that there was no triable issue. On such an application the respondent bears the onus of proof and where the facts are peculiarly within the respondent's knowledge the appellants' statutory cause of action should not have been dismissed because of gaps in the appellants' case if the necessary evidence might be obtained as a result of discovery, interrogatories or evidence from reluctant witnesses (see Wickstead v Browne (1992) 30 NSWLR 1 per Handley and Cripps JJ at p 11). 40 The Federal Court has also cautioned, in TPC v Pioneer Concrete (1994) 124 ALR 685 per Sheppard J at p 695, that: "... a court asked to strike out all or part of a pleading needs to be careful to ensure that giving effect to the application does not prevent a party from making a case which it is entitled to make. One has to err on the side of caution lest one be deprived of a case which in justice it ought to be able to bring". 41 What should have happened in the Tribunal was that the Tribunal and the lessee should have ensured that all the evidence upon which the lessee intended to rely in order to establish harsh and unconscionable conduct in some form or another, was before the Tribunal, such as at a hearing on the merits as contemplated by President Burns in the terms set out in para 8 above. 42 For this reason, as well as the reasons set out above in respect of incompetency of the appeal to the Supreme Court, I would set aside the decision of the Supreme Court and remit the matter to the Tribunal for re-hearing on the merits. 43 To give effect to the respective reasons, the appropriate orders are those numbered 1 to 4 in the Reasons for Judgment of Hill J. On the question of costs, I agree that the appropriate order is that the respondent pay the costs of the appellants to the appeal to the Supreme Court of the Australian Capital Territory and half of the appellant's costs of the appeal to this Court for the reason that Mr and Mrs Turner have, in part, created the procedural difficulties which have arisen by failing at the outset to differentiate between themselves and the company. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gallop. Associate: Dated: 3 April 2000 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 60 OF 1999 ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: CLASSIC GOURMET SAUSAGES PTY LIMITED (ACN 063 906 883) FIRST APPELLANT IAN TURNER AND LYN TURNER T/A CLASSIC GOURMET SAUSAGES SECOND APPELLANT AND: LEDA COMMERCIAL PROPERTIES PTY LIMITED (ACN 008 613 447) RESPONDENT JUDGES: GALLOP, HILL AND GYLES JJ DATE: 3 APRIL 2000 PLACE: SYDNEY REASONS FOR JUDGMENT HILL J 44 Before the Court is an appeal from a judge of the Supreme Court of the Australian Capital Territory. The appeal was originally instituted by Mr and Mrs Turner, expressed to be trading as Classic Gourmet Sausages. Subsequently, the appellants sought to file an amended notice of appeal adding as an appellant Classic Gourmet Sausages Pty Limited ("the Company"). As will be seen, the question of who the parties to the proceedings are is a matter of some significance in the appeal. 45 In the judgment appealed from the learned primary judge dismissed an appeal made to him by Mr and Mrs Turner against a decision of President Somes of the Tenancy Tribunal of the Australian Capital Territory ("the Tribunal") dismissing an application made to the Tribunal by Mr and Mrs Turner as reflected in a notice of dispute relating to Shop 71B Tuggeranong Hyperdome, Anketell Street Tuggeranong in the Australian Capital Territory and on the request of the lessor of those premises, Leda Commercial Properties Pty Limited ("Leda") that the notice of dispute be dismissed. 46 In order to understand the issues in the appeal it is necessary to consider the way the dispute originated in the Tribunal and the manner in which the Tribunal dealt with the matter. THE DISPUTE BETWEEN THE PARTIES 47 On or around 27 February 1998 Mr and Mrs Turner lodged with the Tribunal a notice of dispute. The notice referred to a lease dated 1 September 1994. It charged that the Landlord, Leda, had engaged in unconscionable conduct as described in the Tenancy Tribunal Act 1994 (ACT) ("the Act") and in particular ss 36(1)(d) and (f) of that Act. Interim orders were sought but these orders were said to be preliminary to the allowing of a suitable period during which further details of the application could be lodged with the Tribunal. 48 Sections 36(1)(d) and (1)(f) stipulate specific matters to which the Tribunal could have regard for the purpose of making an order in relation to a dispute before it. The paragraphs read as follows: "(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the tenant or a person acting on behalf of the tenant by the owner or a person acting on behalf of the owner in relation to the lease; ... (f) the extent to which the owner's conduct towards the tenant was consistent with the owner's conduct in similar lease transactions between the owner and other like tenants;" 49 The matters which are set out in s 36 are not exclusive of the matters to which the Tribunal could have regard in determining a claim under s 6(1)(b) of the Act that: " ... another party to the lease has engaged in harsh and oppressive conduct towards the [claimant] (whether that conduct is unconscionable or not)". 50 It is clear that the Tribunal, Mr and Mrs Turner and those dealing with the matter on behalf of Leda understood the dispute to relate to a lease which although dated 7 December 1994 (and not 1 September 1994) showed a commencement date of 1 September 1994. The parties to that lease were Leda Commercial Properties Pty Limited as lessor and Classic Gourmet Sausages Pty Limited as lessee. The particulars of the dispute lodged by Mr and Mrs Turner alleged as follows: "1) The Respondent refused to give the Applicants time in which to pay arrears of rent 2) The Respondent re-entered the premises on 6 March 1998 without adequate warning. The conduct was harsh and oppressive, and unconscionable in that: a) The Applicants were willing, and had offered, to pay off arrears on terms similar to terms which the Respondent had granted to other tenants of the shopping centre in similar cases; b) (i) The Applicants were forced to sell off existing stock at reduced prices and thereby incurred a trading loss on that stock of approximately $10,000; (ii) The Applicants were unable to remove from the premises their fittings, including coolroom, coolroom panels, cabinets, roller doors, counters, signage and decor and other trade fittings with a combined value exceeded $10,000; (iii) The Applicants were unable to relocate the business to alternative premises and thereby lost the goodwill of the business; (iv) The Respondent subsequently leased the premises, including the fittings, being cabinets, counter, roller doors, signage and decor and other fittings and has received rent for them." 51 The dispute between landlord and tenant appears to have had its origin in defaults on the part of the tenant in paying rent under the lease. In the description of the way that dispute developed and the course the proceedings took before the Tribunal, it is convenient to refer to the parties to that dispute as "the Landlord" and "the Tenant" to avoid at this stage the question who the parties to those proceedings were. 52 By September 1995 the Landlord claimed that the Tenant was in arrears in paying the rent. Agreement was reached at that time concerning a repayment schedule to remedy the amount then in arrears. So far as the correspondence filed with the Tribunal on behalf of the Landlord shows, rent was in arrears through to February 1998 when a letter of demand and notice pursuant to the Forfeiture of Leases Act 1901 (NSW), as it applies to the Australian Capital Territory, was served on the Tenant. This precipitated a meeting held on 16 February 1998 at which the question of arrears and other matters in which the parties were in dispute, including the permitted use of the premises, were the subject of discussion. 53 On or around the end of February 1988 the Landlord purported to convert the tenancy to a monthly tenancy. The validity of that notice was in dispute between the parties. On 4 March 1998 the solicitor for the Landlord threatened that his client would re-enter the premises and terminate the occupation of the Tenant should arrears of rent not be paid. A notice of re-entry dated 6 March 1998 was served. It stipulated that rent of $12,833.43 was in arrears and also that the Tenant had failed to provide, as required by the lease, a replacement bank guarantee for an amount equal to one quarter of the annual rent as reviewed from time to time. By notice dated 30 March 1998 the Landlord demanded payment of arrears, said then to be $13,587.11, and required the Tenant to forthwith assign and transfer all of the tenant's fixtures, fittings, plant and equipment and stock of trade in the premises. 54 By letter dated 10 April 1998 the solicitors for the Tenant agreed to request the National Australia Bank to provide a bank guarantee unlimited as to time, noting that a bank guarantee limited in time in the sum of $11,550 was then held by the Landlord. There was also a dispute concerning the fitout and upgrading of the premises, said to be the responsibility of the Tenant. 55 It was the position of the Landlord advanced at the meeting that the rent payable under the lease was significantly in arrears and an acceptable bank guarantee, as required by the lease, had not been provided . 56 Meanwhile on 19 February 1998 the application for interim relief was filed with the Tribunal. 57 In response to material filed on behalf of the Landlord in the Tribunal, being the correspondence etc to which I have referred, Mr Turner in an affidavit told the Tribunal that he had become aware of a number of cases of conduct which he regarded as harsh and oppressive in the light of the way in which his case had been treated. He noted an intention to issue subpoenas to various persons, at least some of whom were named in that affidavit. His case seems to have at least included the claim that there were a number of tenants in the same building who had outstanding arrears of rents or who had failed to provide guarantees but had been allowed to continue trading. He noted in the affidavit that the persons who would give evidence on his behalf would not come forward voluntarily. It may be said that the precise extent of the claimed case to be adduced by or on behalf of the Tenant was far from clear. 58 Meanwhile the application for interim orders came before Mr Burns, a President of the Tribunal, on 5 March 1998. On that occasion a representative of the Turners indicated that statutory declarations would be obtained or subpoenas issued in respect of five tenants. Mr Burns on that day declined to make the interim orders sought, indicating that there was no evidence before him that there was any harsh and oppressive conduct on the part of the Landlord. The notice of dispute was still on foot so far as it related to final relief. 59 The matter came before Mr Burns again on 23 October 1998 on the application by the Landlord to have the application to the Tribunal struck out. It was said that once the interim relief had been disposed of there was no dispute within the terms of the Act. On that day senior counsel who appeared for the Landlord indicated that he wanted the notice of dispute dismissed forthwith. The representative of the Tenant, however, again indicated that there were a number of tenants who had been given time to pay off arrears of rent and sought an adjournment to obtain affidavits from them. Mr Burns adjourned the application until 1 December, noting that an application that he disqualify himself was foreshadowed. It was subsequently made. 60 On 25 November 1998 the matter again came before Mr Burns. The representative of the Turners again indicated that the only way evidence could be obtained from tenants said to have been treated differently was to issue a subpoena. Mr Burns indicated that in his view that would be better dealt with by setting a hearing date rather than, as Leda submitted, by an application to strike out the proceedings. The date of 1 December was, however, confirmed as the date for the hearing of the application by the Landlord to strike out the proceedings. Directions were made that the Tenant file and serve any affidavits by 27 November. 61 Ultimately the matter came before another President of the Tribunal, Mr Somes, on 1 December 1998. Again the representative who appeared for the Tenant, indicated that he was unable to bring forward as witnesses other tenants and could not obtain affidavits from them. Mr Somes indicated that he was dealing with the matter as an application by Leda to strike out the proceedings. The learned President dealt with the matter briefly. After setting out the relationship between the parties and relevant statutory provisions he said: "The tenants allege in their Particulars of Dispute that the conduct of the landlord was harsh and oppressive, and unconscionable in the way set out in the Notice of Dispute. I have considered these items carefully in the light of the evidence before me and cannot see how the tenant would be able to sustain such a position. I an only deal with this application on the evidence before me and in my view the tenants had every opportunity at the hearing to produce any evidence which they wished to produce in order to resist the application put before the Tribunal by the landlord. Having considered all the material before me at the hearing on the 1st of December 1998 I am satisfied that in effect no reasonable course of action has been disclosed. It is clear in relation to summary judgment or summary dismissals of actions that before a court or tribunal would take such a step that a court or tribunal must be satisfied that the claim which it is intended to dismiss is without merit. I am satisfied in the circumstances of the evidence before me that the Notice of Dispute, the subject of the application by the landlord, is without merit and the application by the landlord is granted and the Notice of Dispute is dismissed." 62 A notice of appeal was then lodged by Mr Turner alone with the Supreme Court of the Australian Capital Territory. 63 At some time Mrs Turner was added as a party to that appeal. An amended notice of appeal was sought to be filed in which an order was sought "that the applicants in the Tribunal be Classic Gourmet Sausages Pty Ltd ACN 063 906 883, Ian Turner and Lyn Turner. That the appellants in the Supreme Court be the same people". It is clear that, assuming the Company was a party to the Tribunal's proceedings, it was a necessary party to the appeal in the Supreme Court and indeed the only party with an interest as appellant. Neither Mr nor Mrs Turner was the lessee under the lease. THE DECISION OF THE PRIMARY JUDGE 64 The question of the relevant parties to the proceedings in the Supreme Court was noted by the learned primary judge. His Honour said: "The lessee was not a party to the notice of dispute or the application to dismiss it, though neither the appellants, the respondent nor the Tribunal appeared to notice this egregious omission." 65 His Honour, however, did not take the question of parties further. In particular, his Honour did not deal with the application in the amended notice of appeal that the Company be added as a party. That matter appears not to have been raised with his Honour at all. Rather his Honour proceeded to deal with the substance of the appeal. 66 The learned primary judge dismissed the appeal. His Honour referred to the general principles relevant to strike out applications as enunciated in General Steel Industries Inc v Commissioner for Railway (NSW) (1964) 112 CLR 125,describing the principles as being "well-known". He was of the view however that President Somes had not overlooked these principles. He took the view that the case sought to be advanced by the Turners was hopeless. His Honour said: " ... the learned President is to be taken to have found that, on the material before him, assuming all facts asserted by the appellants had been found favourably to them, and all evidence available or pointed to as reasonably likely to be available, had been called, the appellants still had no seriously arguable claim for relief. Those assumptions could, however, only arise from the material actually adduced before the learned President. That included any material adduced by the respondent in so far as it gave rise to the inferences favourable to the appellants, unless it unarguably contradicted assertions made by, or on behalf of, the appellants." 67 His Honour referred to the case, sought to be made out, of discriminatory conduct and indicated that he assumed that Mr and Mrs Turner might have summoned witnesses and adduced evidence that other tenants in default had been permitted to remain as tenants despite that default. His Honour then continued: "However, it has to be borne in mind that discriminatory treatment, even if proved, does not, of itself, amount to 'harsh and oppressive' conduct against a particular tenant. It is merely a factor in considering whether a particular tenant has been treated harshly and oppressively." 68 His Honour pointed out that a Landlord was not bound, having granted an indulgence to one tenant, to grant the same indulgence to every other tenant. His Honour suggested that giving favourable treatment to one tenant over another could be harsh and oppressive where the less favourable treatment was engaged in for a collateral and improper purpose. That was not suggested to be the case here. His Honour continued: "Having regard to the numerous occasions upon which the lessee had been in default, the unkept promises it had made to remedy breaches and avoid future breaches, the fact that its impecuniousity [sic] was not due to any fault on the part of the respondent, that the respondent extended time for the remedy of breaches time and time again and that there appeared to be no reasonable prospect that the lessee would remedy its breaches of covenant within a reasonable time, it cannot, I think, be said to be arguable that the respondent had acted harshly and oppressively in determining this lessee's monthly tenancy, even if other tenants may, in the past, have been given greater indulgence for objectively more serious breaches of their lease obligations. To these considerations must be added the incapacity of the lessee to provide a satisfactory guarantee of the kind referred to in clause 21. That consideration renders a claim for relief even more unarguable than if the breaches of covenant had been confined to arrears of rent. If the lessee's bankers were not prepared to extend further credit to the lessee or the appellants, why should the respondent be expected to do so?" 69 From this judgment Mr and Mrs Turner appealed. An amended notice of appeal, which the appellants sought to file in this Court showed the Company as a party to the appeal. OTHER RELEVANT STATUTORY PROVISIONS 70 As already indicated the Tribunal is required to deal with certain tenancy disputes in the Australian Capital Territory including a claim by a party to a lease that another party to the lease has engaged in harsh and oppressive conduct. The expression "party" is defined in s 3 of the Act for relevant purposes as meaning the "owner" or "the tenant". Having regard to the terms of s 33 of the Act, the only relevant parties to the Tribunal hearing in the present case were the Landlord and the Tenant: see s 41. 71 The right of appeal to the Supreme Court of the Australian Capital Territory is conferred by s 58 of the Act. It is a right given to a party to a tribunal hearing and only to a party. THE QUESTION OF PARTIES 72 It follows from the provisions of the Act that the only dispute which the Tribunal had jurisdiction to hear was a dispute between the Company and Leda Although the notice of dispute lodged with the Tribunal showed that it was lodged by the Turners as tenant, it is obvious enough that both Leda and the Tribunal treated the matter before them as a dispute which had arisen between the Tenant, that is to say the Company, and Leda. The reference to the lease dated 1 September 1994 (it was an exhibit in the Tribunal proceedings) and all documentary material filed with the Tribunal makes this clear. The first affidavit filed by the applicant in the Tribunal proceedings which annexed the lease and other documents, including the correspondence passing between the parties was correctly entitled, naming the Company as the applicant. So too were the next two affidavits which the applicants filed. The fourth affidavit filed by the applicants, while headed differently, described the Company as being the Tenant. While it is true that the original notice of dispute and other material filed with the Tribunal described the applicants as trading as Classic Gourmet Sausages, this description would make no sense if the application was intended to be made by the named persons individually. The description rather reinforces the fact that they were bringing the proceedings on behalf of the Company. It was never suggested that the applicants in fact themselves carried on business under the name Classic Gourmet Sausages. 73 Some of the correspondence emanating from Leda (although not all: some of it shows Mr Turner as being the manager of Lillian Investments Pty Limited) is addressed to Gourmet Sausages Pty Limited to the attention of Mr Turner as manager. Some of the correspondence passing between the solicitors of the parties correctly identified the Company. 74 At no time before the Tribunal did the legal representatives of Leda raise the question of the application having been made by the individuals, rather than the Company. The Tribunal itself dealt with the matter before it, on at least one occasion as an application by the Company as tenant. On 5 March 1998, President Burns noted that the Tenant was Classic Gourmet Sausages Pty Limited. The transcript of the proceedings on 17 December 1998 when President Somes delivered his reasons states the matter to be "Ian Turner and Lyn Turner and Classic Gourmet Sausages" (emphasis added). The suggestion that the application before the Tribunal was incompetent because the Company was not a party to it was not an issue before the Tribunal. Nor, for that matter, was it raised by Leda before Higgins J. 75 The Tribunal is not a court. Its proceedings are intended to be conducted with a degree of informality. It is perhaps unfortunate that the Tribunal did not take formal steps to rectify the names of the parties before it. But given that the parties and the Tribunal had treated the matter as one which had come before the Tribunal as an application by the Company (and in my view sensibly and correctly) it is appropriate to treat the real party to the application as being the Company. Leda never sought to suggest otherwise in the Tribunal or to raise the matter and in the circumstances should be bound by the course it took. 76 On this basis the appeal to the Supreme Court should have been an appeal by the Company. The application to join the Company as a party to the appeal originally initiated by Mr Turner appears to have been outside the time stipulated in s 58 of the Act within which an appeal could be brought although subsection 2 of that section makes it clear that the Court could extend the time in which an appeal was lodged. No question of prejudice could have arisen had the learned primary judge extended the time in which the Company could appeal. Nor for that matter does any prejudice arise now. 77 Mr and Mrs Turner, not being the Tenant under the lease, had no standing in the appeal in the Supreme Court. It is clear enough that in these circumstances his Honour should have considered the application by the Company to be joined as a party as an application by the Company to be added as a party to the appeal out of time and determined that application in favour of the Company. This would have led to the result that the proper parties to the real dispute were before the Court and that, so far as Mr and Mrs Turner were concerned, the appeal should have been dismissed because they were not proper parties. 78 There is no doubt that in failing to deal with this matter his Honour was in error. Had his Honour's attention been drawn to the fact that he had not dealt with the application, the error would not have been made. Unless that error is one capable of being dealt with by this Court on appeal, the matter would need to be remitted to his Honour to join the Company as a party. As I have indicated, so far as the application made to the Supreme Court by the Turners is concerned to that extent it should have been dismissed. This would have left the application before the Supreme Court as an appeal by the Company from the Tribunal's decision to which Leda was the other party. 79 The question of the proper parties arose for the first time at least as between the parties, in submissions made by Leda to this Court. As already indicated it had been the subject of comment by the learned primary judge. The first question that requires consideration, therefore, is whether this Court could or should now, in its appellate jurisdiction, order the Company to be a party to the application to the Supreme Court and also to the appeal. 80 Section 24 of the Federal Court of Australia Act 1976 ("the Federal Court Act") confers jurisdiction on this Court to hear appeals from judgments of the Supreme Court of the Australian Capital Territory. The powers which the Court may exercise on appeal are set out in s 28 of the Federal Court Act. They are expressed in broad terms. In particular the Court is empowered to make such order as it in all the circumstances thinks fit even where exercise of the power may be in favour of persons who have not appealed from or complained of the decision under appeal. 81 As Lee J observed in Teoh v the Minister of Immigration, Local Government and Ethnic Affairs (1994) 121 ALR 436 at 445, s 28 confers upon the appellate jurisdiction of the Court sufficient power to ensure that the decision upon appeal is just. The power is not constrained by the technical form of the appeal. So, for example, in that case, it was held that the Court on appeal could permit amendment of an original pleading to raise an issue of fact or law that was capable of being determined upon the evidence that was initially before the Court. Carr J in the same case, in allowing the amendment sought, relied upon the width of language in s 28(1)(b) of the Federal Court Act and the terms of Order 13 rule 2(1) of the Federal Court Rules permitting the Court at any time to order any document in the proceeding to be amended as the Court thinks fit. The relevant constraint, in his Honour's view was whether it was in the interests of justice to take the course. 82 If s 28 of the Federal Court Act would not authorise the addition of a party in the court below and in consequence as a party to the appeal before us, I am of the view that the Court does have power to do so where justice demands that this course be taken, cf Cuthbertson v Hobart Corporation (1921) 30 CLR 16 at 25, particularly where, as in Cuthbertson that party had in substance been heard and its arguments addressed in the court below. 83 The present case is analogous to S (a minor) v Special Educational Needs Tribunal [1996] 1 WLR 382. There, proceedings had been commenced by a parent in a statutory Tribunal. The son sought to appeal from the Tribunal to the Kings Bench Division. It was held by Latham J that the son was not a proper party to the appeal. As no request was made to add the mother as a party, the application was dismissed. However Latham J dealt with the substance of the appeal on its merits. The son then appealed to the Court of Appeal. That Court found that the son was not a proper party to the appeal, because he was not entitled to be a party to the proceedings before the Tribunal. There being no application brought before the Court of Appeal that the mother be added as a party, the appeal was dismissed as incompetent. The point is that the Court of Appeal appears to have contemplated that it would have been competent for it to add the mother as a party to the appeal had an application been made to it to take this course. It is not quite clear whether the Court contemplated that it would act to add the mother as party to the proceedings at first instance, before adding the mother as a party to the appeal or whether it would add the mother as a party to the appeal, notwithstanding that she was not a party at first instance. Whether the latter course would be open to an appeal court is not necessary to consider here. It suffices here to say that power would exist in an appellate court to add a party not a party to proceedings at first instance as a prelude to adding that party as a party to the appeal. 84 The amendment sought to be made here is one that can more readily be made because it does not affect the substance of the matter in controversy between the parties. What was being sought by the application to add the Company as a party at first instance was no more than the correction of a formal defect: Maiden v Maiden (1908) 7 CLR 727. There is no suggestion that Leda was in any way misled. Relevant to whether such a discretion would be issued would be whether injustice would arise if the amendment was not allowed or prejudice would be suffered if it were. 85 In my view it is in the interests of justice that the Court permit amendment to the notice of appeal filed in the Supreme Court of the Australian Capital Territory to allow the Company to be added as a party. It is clear that there is no prejudice at all to the respondent Leda. Likewise it is clear that it is not in the interest of justice that the matter be remitted to the trial judge so that an order can be made by him, judgment can be then given by his Honour in the same terms as his Honour did on the appeal brought by the Turners and the matter can then come on appeal to yet another appellate court. It follows that it is also appropriate that the application to file an amended appeal in this Court so as to include the Company as a party to the appeal in this Court should be permitted. In both cases this is so notwithstanding that the applications, if treated as the filing of appeals by the Company, would be out of time. 86 It is necessary now to turn to the substantive matter of the appeal. WAS THE POWER OF SUMMARY DISMISSAL PROPERLY EXERCISED BY THE TRIBUNAL? 87 Under s 54 of the Act the Tribunal is empowered to grant such relief as may be granted by the Magistrates Court under the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT) as if that Court had jurisdiction to hear the dispute. Section 139 of the Magistrates Court (Civil Jurisdiction) Act is in the following terms: "(1) Where, in any proceedings, it appears to the court, in relation to the proceedings generally or in relation to any claim for relief in the proceedings, that – (a) no reasonable cause of action is disclosed; or (b) the proceedings are – (i) frivolous or vexatious; or (ii) an abuse of the process of the court, the court may, on the application of the defendant or of its own motion, order that the proceedings be stayed or dismissed either generally or in relation to that claim for relief." 88 Section 139 is in substantially the same form as Order 20 rule 2 of the Federal Court Rules. 89 The principles applicable to summary dismissal are not in dispute. The power is not one which should lightly be exercised. It should be exercised only in a clear case: Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91. In a case such as the present the power should not be exercised unless it is clear there is no real question to be tried and that the case for an applicant is clearly untenable and cannot possibly succeed. Put in another way the power would only be exercised where the case sought to be adduced by the applicant is one that is hopeless and bound to fail: cf General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Faessler v Neale (unreported, Drummond J, 20 July 1994); Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 124 ALR 685. 90 In a superior court where a plaintiff is required to plead his or her case it is often said that a claim will be struck out where, accepting that the evidence is as pleaded with all reasonable inferences favourable to the plaintiff being drawn, the case is nevertheless one which is unarguable; see, for example, the comments of Barwick CJ in General Steel at 129. In some cases the application may be made at a later time than the close of pleadings as, for example, after the whole of the plaintiff's evidence is filed. Yet in other cases, evidence may be adduced on the hearing of the application to strike out. In all these cases, however, an action to strike out will not succeed where a real question of fact is to be determined: Dey at 91 per Dixon J and cf Webster v Lampard (1993) 177 CLR 598 at 602-3, a case dealing with the analogous case of summary judgment. 91 In a statutory tribunal the issues between the parties are generally not the subject of pleadings. No doubt proceedings in a tribunal could be dismissed in a case where all evidence having been filed the question was whether, that evidence being accepted in the form filed, the case was one which did not give rise to an arguable case. Similarly proceedings could be dismissed if they disclosed in law no arguable case. But it would be a rare case that an application to a tribunal could be dismissed where an applicant had not filed or adduced all of the evidence which the applicant wished to adduce. One such case may be where the applicant had indicated in advance the evidence which the applicant proposed to adduce although no evidence had been filed. If that evidence, accepted favourably to the applicant, left no triable issue so that the applicant could not succeed, no doubt it would be appropriate for the proceedings to be dismissed. 92 In the present case, however, all that had been done by the appellants was to indicate in the most general terms the nature of the evidence which might be given by witnesses the appellants wished to subpoena. It is difficult to glean from what was said by Mr Turner in his affidavit of 19 November 1998 what it was that the proposed witnesses would say. In general terms the affidavit did no more than indicate that there were people who would support a case that the conduct of Leda was harsh and oppressive to the Tenant. Certainly the affidavit suggested that at least in part the persons referred to would say that there were other tenants who were in arrears of rents or had failed to provide guarantees who had not suffered the actions which the Turners had suffered by reason of Leda entering possession. Whether this is the limit of the evidence that was proposed to be adduced is not entirely clear. Even if it were the substance of the evidence proposed to be adduced was not disclosed beyond the very general terms which I have set out. 93 Nothing said by the representatives of the Turners before the Tribunal in oral submission added to the material in the affidavit of 19 November 1998. 94 In these circumstances strike out could only be permitted if the evidence referred to in its generality by Mr Turner could never found a case that Leda had engaged in harsh and oppressive conduct towards its tenant having regard to the terms of either or both of paragraphs (d) and (f) of s 36(1) of the Act, that is to say undue influence or pressure or unfair tactics on the one hand and inconsistent conduct on the other. 95 With respect to the learned primary judge who appears to have considered otherwise, it was an error of law to say that the evidence proposed to be adduced, so far as the nature of the evidence could be discerned from the affidavit, could never support a case of harsh or oppressive conduct as those words are to be construed in the Act. It is obvious from s 36 that it was the intention of Parliament to regard discrimination as relevant to the issue of harsh and oppressive conduct. As the learned primary judge rightly indicated, the question of whether conduct is harsh and oppressive is one to be determined by reference to all the circumstances. While it may be true that the mere fact that a Landlord does not press one tenant for arrears does not mean that pressing another tenant for arrears is harsh and oppressive, the question is not one that can really be determined in the abstract. It is not difficult, for example, to imagine that waiver of breaches of covenants to provide guarantees in the case of a number of tenants could lead to the conclusion that action taken to terminate a lease of another tenant because of failure to provide a guarantee where a Landlord was at no risk was harsh and oppressive conduct vis-a-vis the lessee of the lease which the Landlord purported to terminate. 96 In my view the Tribunal misdirected itself in law in striking out the appellants' claim in the circumstances of the present case where the evidence which the appellants proposed to adduce was at best only stated in the most general of terms and at worst not particularised at all. With respect, the comments of President Burns in the Tribunal hearing that took place immediately before President Somes heard the strike out application, namely that it would be preferable that a hearing on the merits take place after directions for filing of affidavits had been given, were correctly made. 97 In the result I would give leave to file the amended notice of appeal in this Court with the consequence that the Company would become a party to the present appeal. I would set aside the orders made by the Supreme Court of the Australian Capital Territory and in lieu thereof order: 1. Gourmet Sausages Pty Limited be added as a party to the appeal. 2. The appeal of Gourmet Sausages Pty Limited be allowed. 3. The notice of dispute be remitted to the ACT Tenancy Tribunal to be heard in accordance with law. 4. The appeal so far as it is brought by Mr and Mrs Turner be dismissed. 5. That the respondent pay the costs of the appellants to the appeal to the Supreme Court of the Australian Capital Territory. 98 I would dismiss the appeal to this Court so far as that appeal was brought by Mr and Mrs Turner and order the respondent to pay half of the appellants' costs of the appeal. 99 In proposing these orders, I take into account that on the question of parties, the appellants, Mr and Mrs Turner have in part created the procedural difficulties which have arisen by failing clearly from the outset to differentiate between themselves and the Company. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill. Associate: Dated: 3 April 2000 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 60 OF 1999 ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: CLASSIC GOURMET SAUSAGES PTY LIMITED (ACN 063 906 883) FIRST APPELLANT IAN TURNER and LYN TURNER t/as CLASSIC GOURMET SAUSAGES SECOND APPELLANT AND: LEDA COMMERCIAL PROPERTIES PTY LIMITED (ACN 998 613 447) RESPONDENT JUDGES: GALLOP, HILL and GYLES JJ DATE: 3 APRIL 2000 PLACE: SYDNEY REASONS FOR JUDGMENT GYLES J 100 I have had the advantage of reading in draft the reasons for judgment of each of Gallop J and Hill J. I agree with the conclusion of each of their Honours as to the merits of the appeal, and agree that the Supreme Court should have corrected the error of law committed by the Tenancy Tribunal ("the Tribunal"). Indeed, I have some difficulty in ascertaining a proper basis for the Tribunal's entertaining the respondent's application for summary dismissal. It was said by the Tribunal to be based upon s 54 of the Tenancy Tribunal Act 1994 (ACT) ("the Act"), calling up s 139 of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT). The relevant part of s 54 is in the following terms: "… 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." That section appears in Div 3 of Pt VI of the Act. Part VI is headed "Tribunal Hearings" and Div 3 is headed "Relief". 101 It appears to me that s 54 relates to the grant of final relief in the proceedings, and not to interlocutory steps along the way. It is also by no means clear to me that this kind of application is appropriate for a specialist statutory tribunal obviously intended to deal with commercial matters in a summary manner as expeditiously as possible. The statutory task is to hear the dispute. This is underlined by the fact that there is only a Tribunal hearing if referred by the Registrar. As this point was not argued, it is not necessary to pursue it for the purposes of this case. I have said what I have in order to avoid any suggestion that the decision in this case gives any imprimatur to the procedure adopted. 102 I turn to the question of parties. The appeal from the Supreme Court to this Court is a full appeal, and, in my opinion, there is no difficulty in this Court doing what the Supreme Court should have done. A combination of the Rules of Court and the authorities referred to by Hill J, would provide ample power to make the amendment if it is otherwise appropriate. I am not sure that s 28 of the Federal Court Act is an appropriate source of power. I agree with the conclusion that, in truth, Classic Gourmet Sausages Pty Limited (ACN 063 906 883) was a party to the proceedings before the Tribunal, with the consequence that it is appropriate to amend the proceedings as proposed by Hill J. 103 I do not read s 6(2) of the Act as posing any difficulty in the Tribunal regularising the position when the matter is remitted to it. There was a claim within the terms of s 6(1)(b), "a person" had referred the dispute to the Registrar, and the Registrar had taken action in relation to the dispute within the time period. If an analogy with curial procedures is sought, then the decision of the High Court in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 would provide such an analogy. However, there is no reason why a specialist tribunal of this kind should be bound by principles developed in relation to the rules of court of superior courts, particularly where the Tribunal can determine its own procedure in the absence of prescription by the Act or regulations (s 37). Because of doubts that may exist as to the power of the Supreme Court to make an order about parties before the Tribunal due to the limited nature of the appeal provided by s 58 (Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 169 ALR 515 paras 31-36), the matter is best left to the Tribunal. 104 I doubt that, in any event, the appeals were incompetent. The appellants to the Supreme Court were undoubtedly on the record of the Tribunal as parties to the decision of the Tribunal (whatever may have been the correct position). The appeal to the Supreme Court was only an appeal upon a question of law (s 58). The appeal did not raise any issue which depended upon the identity of the tenant. In my opinion, there is much to be said for the view, as to parties, that the Supreme Court was not bound to go beyond the record of the Tribunal as it found it, but rather was to deal with the question of law presented to it and only with the question of law presented to it. On this view, the appellants were parties before the Tribunal and had a statutory right to appeal on a question of law. The appeal to the Supreme Court did not raise any issue as to whether they were the lessee or an otherwise appropriate party. Furthermore, those appellants are properly aggrieved by the order of the Supreme Court and, being parties before it, are proper parties to prosecute an appeal to this Court. The alternative view is that s 58, in granting a right of appeal to a "party", speaks only of those who are proper parties. Whilst it is not necessary to come to a final view, I doubt that this is correct. 105 I would not have penalised the appellants in costs. They succeeded on the merits. The problem as to parties was not raised by the respondent before the Tribunal (where it should have been) or the Supreme Court. Save for that, I agree with the orders proposed by Hill J. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 3 April 2000 Counsel for the Appellants: Mr R Killalea Solicitor for the Appellants: Sheila Foliaki-Singh & Associates Counsel for the Respondent: Mr F J Purnell, SC Solicitor for the Respondent: Mallesons Stephen Jaques Date of Hearing in Canberra: 18 November 1999 Date of Judgment: 31 March 2000