Jet Black Two Pty Limited -v- Star City Pty Limited & Anor [2003] NSWADT 129

CITATION: Jet Black Two Pty Limited -v- Star City Pty Limited & Anor [2003] NSWADT 129 DIVISION: Retail Leases Division APPLICANT Jet Black Two Pty Limited PARTIES: FIRST RESPONDENT Star City Pty Limited SECOND RESPONDENT Sydney Harbour Casino Properties Pty Limited FILE NUMBER: 015083 HEARING DATES: 17/04/2003 SUBMISSIONS CLOSED: 04/17/2003 DATE OF DECISION: 06/02/2003

BEFORE: Fox R - Judicial Member APPLICATION: Costs - Interim order MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Retail Leases Act 1994 CASES CITED: World Best Holdings -v- Awad (2001) NSWADT 140 Davies -v- Lynhurst Developments Pty Limited [2000] NSWADT 196 APPLICANT REPRESENTATION: J Gooley, barrister RESPONDENTS P Banki, solicitor ORDERS: 1. Matter stayed pending outcome of Industrial Relations Commission proceedings.; 2. Costs Application adjourned; 3. Either party has liberty to apply on 14 days notice; 4. Further directions 15 May 2003, at 12 noon

1 In this Application Mr Gooley sought a stay of the proceedings which his Lessee client Jet Black Two had initiated in this Tribunal in August of 2001, because his client had taken proceedings in the Industrial Relations Commission in October of last year. The IRC proceedings are ongoing. Mr Banki, on behalf of the Lessor Star City Pty Limited objected on the basis that the issues now before the IRC are the same as those currently pleaded by the Lessee before this Tribunal. 2 Mr Banki drew attention to the decision of this Tribunal in World Best Holdings –v- Awad (2001) NSWADT 140, in which a stay was granted because a remedy sought by the claimant Awad in the IRC was not available in this Tribunal. Awad's claim was for damages in an amount less than 300,000.00, and so within the limit set by Section 73 of the Retail Leases Act, 1994 (RLA) and the Tribunal held that the plain words of Section 76 denied any other Court jurisdiction in respect of issues raised in proceedings which had been started in this Tribunal. However, Awad was entitled to a stay because at the time of the hearing in 2001, this Tribunal had no jurisdiction similar to that of the IRC in respect of "unfair contracts". That aspect may now have been covered by the operation of part 7A and Section 71A of the RLA, giving this Tribunal jurisdiction in relation to unconscionable conduct. 3 In these present proceedings the "trigger" to send the claimant to the IRC appears to have been the fact that the damages now claimed by the Lessee far exceed the jurisdictional limits set by Section 73 of the RLA. 4 At first blush the effect of Section 76 may well appear to be that, once proceedings have been started in this Tribunal, no other Court has jurisdiction, so establishing the clear policy that retail lease matters be adjudicated in this specialist Tribunal. In the interest of justice and fairness, there must be room for an applicant to seek redress elsewhere when it transpires that the money compensation likely to be in issue is much greater than the statutory limit set this Tribunal. 5 It seems apposite to repeat the observations made in World Best holdings at paragraph 26:- I have earlier adverted to the a unfair effect of the fact that the Respondent did not, immediately after the commencement of these proceedings, raise the IRC issue, but of course it does seem to me that Section 88 of the Act allows that to be addressed, and I indicate now that I am satisfied that the Respondent's actions in this regard may well amount to special circumstances, and that the Applicant is entitled to costs on a full indemnity basis up to and including the present hearing, and including the costs of the mediation and the mediator's fee. I make no order at this time but, I indicate that, subject always to such further matters as the parties may wish to then raise when these proceedings are resolved either by further hearing on the facts in this Tribunal, or alternatively, there being nothing factual left to decide pursuant to the Orders of the IRC, when this matter is then formally dismissed, I would propose to make such costs order. 6 Of course, Mr Banki pressed me strongly to find that the matters pleaded in the IRC were identical or very similar to those before this Tribunal, the effect of Section 76 being, at least, to remove any justification for a stay, and so to direct that these proceedings continue. To grant that Application would entail a very real risk of duplicating the two sets of proceedings, and that is obviously inappropriate. 7 It seems to be to be clear that it is not the function of this Tribunal to either predict what the IRC might do, or alternatively to seek to rule on what is within, and what is not within the jurisdiction of the IRC. If the apparently plain words of Section 76 of the RLA have their full effect, and deny any other Court jurisdiction whilst proceedings are on foot in this Tribunal, then I presume that a stay order leaves these proceedings on foot, and it may well be the case that Jet Black's Application in the IRC cannot proceed until it formally discontinues either completely, or the relevant issues, in this Tribunal. However, that is not a matter for me to rule upon at this time, all of that can be addressed in whatever application the Lessor may wish to bring in these present proceedings if the Lessee seeks to discontinue them, or when the IRC proceedings have been completely resolved, and the need for a Stay of Proceedings in this Tribunal has expired. 8 There are, of course, excellent reasons why an applicant should wish to keep proceedings in this Tribunal alive, the effect of Section 71 RLA being to limit the jurisdiction of this Tribunal to claims which arose no later than 3 years prior to the date of lodgement of the Application, (Davies –v- Lynhurst Developments Pty Limited [2000] NSWADT 196). If, in the end, the election (if that it be) of the Lessee to leave the present proceedings on foot is seen to be inappropriate, then the Lessor has its remedy in an application for a costs order at that time. 9 Mr Banki also sought an order for costs of this application. I note it, but will rule on that when this matter reaches its end, whether that end is by the Lessee discontinuing, or the order of the IRC.