Portazon Pty Limited, t/as Bordignon Engineering Company v Fair Trading Tribunal [1999] NSWSC 1084

New South Wales Supreme Court CITATION : Portazon Pty Limited, t/as Bordignon Engineering Company v Fair Trading Tribunal [1999] NSWSC 1084 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 30056/99 HEARING DATE(S) : 29/10/99 JUDGMENT DATE : 4 November 1999

Portazon Pty Limited, t/as Bordignon Engineering Company PARTIES : Fair Trading Tribunal - 1st Defendant R. M. Bourke & Co Pty Limited - 2nd Defendant JUDGMENT OF : Sully J

COUNSEL : M. J. Heath - Pl. M. L. Adofaci - Crown Solicitor SOLICITORS : Noyce Salmon & d'Aquino - Pl Crown Solicitor - Def. CATCHWORDS : ACTS CITED : Suitors' Fund Act 1951 (NSW) Fair Trading Tribunal Act 1998 (NSW) CASES CITED : R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374-375 Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd [1985] 1 NSWLR 491 DECISION : Second defendant to pay plaintiff's costs; Second defendant to have in respect to such costs an indemnity certificate under the Suitors' Fund Act 1951

SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SULLY J

4 November 1999

30056/99 - Portazon Pty Limited, t/as Bordignon Engineering Company v Fair Trading Tribunal

JUDGMENT

1 HIS HONOUR: By a summons filed in Court on 7 September 1999 Portazon Pty Limited trading as Bordignon Engineering Pty Limited, as plaintiff, sought against the Fair Trading Tribunal as first defendant, and against R. M. Bourke & Co Pty Limited, as second defendant, a declaration that a certain ruling of the first defendant as to its jurisdiction in respect of a certain claim before it had been erroneous in law. The summons sought various ancillary orders including an order for costs. 2 The first defendant filed an Appearance, submitting to such order as the Court might make save as to costs. The second defendant filed a normal Appearance. 3 In a judgment delivered on 25 October last I made in favour of the plaintiff a declaration that the ruling in question was erroneous; and I ordered that it be quashed. I reserved for later argument the question of costs. 4 Exhibit A at the hearing before this Court was a letter written to the plaintiff's solicitors by the solicitors for the second defendant. The letter read, formal parts omitted, as follows: "I am told by my client that he will be unable to attend the hearing of this matter. My client tells me that his health and finances are not up to it. My client has no objection to the matter proceeding in his absence." 5 The hearing before this Court proceeded, accordingly, in the absence of the second defendant. In due course, and in accordance with directions which I had given in that behalf, the plaintiff's solicitors gave notice to the solicitor for the second defendant of the hearing that had been fixed for the argument of the question of costs. That notice drew from the solicitor for the second defendant a letter reading, formal parts omitted, as follows: "I do not have instructions to appear at the hearing on the question of costs. The second defendant relies on paragraph 14 of his affidavit sworn on 15 October 1999. I submit that the second defendant relied on the determination of the first defendant. If the first defendant made an error of law it was not the fault of the second defendant. I submit that the second defendant should not be required to bear any share of the costs other than those he has already had to meet. My client is in poor health suffering from high blood pressure and diabetes. My client also tells me that he is in a very poor financial position at present." 6 As at the principal hearing, so also on the costs hearing, there was no further appearance by or for the second defendant, and no further submission on the question of costs was put to the Court by or for the second defendant. 7 Two questions arise. The first is whether an order for costs should be made in favour of the plaintiff and against the second defendant. The second is whether, if an order for costs be so made against the second defendant, that defendant should have the benefit of an order under the Suitors' Fund Act 1951 (NSW). 8 The affidavit sworn on 15 October 1999 was sworn by Mr. Richard Michael Bourke in his capacity as a director of the second defendant. The relevant portions of this affidavit read as follows: 7. At the Tribunal hearing on 11 August 1999 the plaintiff did not appear but the Tribunal had an affidavit by John Bordignon before it. The affidavit submitted that the Tribunal did not have the jurisdiction because the application to the Tribunal was filed after the statement of claim. The affidavit did not address the issue of who was the proper applicant to the Tribunal or the proper defendant in the Local Court proceedings. The affidavit or letter accompanying it did not contemplate the position if the Tribunal found it had jurisdiction. 8. At the Tribunal hearing on 11 August 1999 the plaintiff did not appear but the Tribunal had an affidavit by John Bordignon before it. The affidavit submitted that the Tribunal did not have jurisdiction because the application to the Tribunal was filed after the statement of claim. The affidavit did not address the issue of who was the proper applicant to the Tribunal or the proper defendant in the Local Court proceedings. The affidavit or letter accompanying it did not contemplate the position if the Tribunal found it had jurisdiction. 9. I submit that the Member ruled on jurisdiction based on the facts before him. Although it was open to the Member to do so he did not proceed to make a determination on the merits of the application. The Member invited by letter dated 8 September 1999 submissions from the plaintiff on jurisdiction but this offer has not been taken up. 10. It is submitted that the only facts before the Tribunal on jurisdiction are those provided by me at the Tribunal hearing on 11 August 1999. I submit that based on those facts the Member's decision is a proper exercise of his functions. If the matter was re-submitted to the Tribunal for re-determination I submit that, without further evidence, the Member would come to the same decision. 11. The summons does not allege a denial of natural justice. I submit that in the circumstances there has been no denial of natural justice by the Tribunal. The plaintiff has been given the opportunity to present evidence on the issue of the proper applicant and has not done so. 12. The summons alleges that the Tribunal has made an error of law. I do not believe that an error of law has been made. In any case, I submit that the legislation allows the Tribunal to make an error of law in relation to proceedings before it without any supervision by the Courts. 13. I submit that the Tribunal has not exceeded its jurisdiction and the decision of the Member should not be overturned. I believe that the Tribunal has not made a decision, which it had no power to make. 14. On the question of costs. I submit that this appeal would not have arisen if the plaintiff appeared and put evidence before the Tribunal at the hearing. I submit that the Tribunal should bear all costs or the majority of them. If costs are to be awarded I submit that they should follow the event in either the Tribunal or Local Court proceedings." 9 The significance for present purposes of what is thus stated in Mr. Bourke's affidavit derives from the provisions of section 22(7) of the Fair Trading Tribunal Act 1998 (NSW). That section provides: "If, at the time when an application is made to the Tribunal in accordance with this Act, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue." 10 The plaintiffs challenge to the jurisdiction of the Tribunal rested upon these simple propositions: