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: (1) On 19 March 1999 the plaintiff issued a Statement of Claim in the Local Court at Griffith against Mr. Bourke himself as defendant. (2) On 14 May 1999 the second defendant lodged a claim with the first defendant. Mr. Bourke himself signed as claimant. Provision was made for the appending to such a signature of any relevant position of the signatory, the examples of "Partner, Director, Secretary, President, Executive Officer" being given specifically in the printed claim form. No such position was nominated by Mr. Bourke as signatory, notwithstanding that the name of the claimant was given by him as that of the second defendant. (3) The issues raised in the claim thus made by the second defendant to the first defendant were common to issues raised in the plaintiff's claim earlier instituted in the Local Court. 11 In those circumstances, it is in my opinion completely clear that the first defendant did not have jurisdiction to adjudicate the claim of the second defendant. I gave expression to that view in the particular orders made on 25 October last. 12 Given the whole of the foregoing matters, I see no reason why the plaintiff should not have an order for costs against the second defendant. The second defendant could readily have put on a submitting appearance but chose not to do so. Indeed, the second defendant put on an affidavit joining issue clearly with the plaintiff's contention that the first-named defendant had erred in holding that it had relevant jurisdiction. The fact that the second defendant did not, in the event, appear in person and contest the plaintiff's claim in this Court is relevant to the quantum of the costs that the plaintiff might reasonably recover against the second defendant; but affords, in my opinion, no basis for denying the plaintiff any order at all for costs against the second defendant. 13 It then becomes necessary to consider whether there should be an order that the second defendant have a certificate pursuant to the Suitors' Fund Act 1951 (NSW). That consideration might be given to the granting of such a certificate is a matter raised not by the second defendant, but by the plaintiff. I imagine, - (although the matter was not put by the plaintiff in these terms), - that the plaintiff apprehends that he is more likely to make a practical recovery of any costs awarded to him by getting them from the State Treasury rather than by trying to get them from the second defendant personally. 14 The relevant provision of the Suitors' Fund Act is contained in section 6. It is there provided, relevantly, as follows: "6(1) If an appeal against the decision of a court - (a) to the Supreme Court on a question of law……………….. succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal." 15 For this provision to have practical effect in the present particular case it must be established that the Fair Trading Tribunal is a "court" in the sense contemplated by section 6. In that connection, section 2(1) of the Suitors' Fund Act defines the expression "court" as including "such tribunals or other bodies as are prescribed". The Fair Trading Tribunal has not been so prescribed. 16 It then becomes necessary to consider whether the Tribunal, not having been specifically prescribed as a "Court", has nevertheless those characteristics that, according to ordinary acceptance and perception, stamp a body with the special public identity of a "Court". 17 This question entails a consideration of the nature of the power exercised by the Fair Trading Tribunal. The question is, more particularly, whether the Fair Trading Tribunal is correctly to be understood as exercising judicial power. That concept entails, in its turn, propositions that are stated conveniently and as follows in the judgment of Kitto J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374-375: "………….Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the right and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and a lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified." 18 The long title of the Fair Trading Tribunal Act 1998 (NSW) describes the statute as being: "an Act to establish a tribunal to adjudicate consumer and commercial disputes; to repeal the Commercial Tribunal Act 1984 and to amend certain other Acts consequentially; and for other purposes". The objects of the Act are stated as follows: "(a) To establish an independent fair trading tribunal to determine disputes in relation to matters over which it is given jurisdiction by an enactment, and (b) To ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair, and (c) To enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner." 19 The jurisdiction of the Tribunal is stated in general terms, and so far as is here relevant, as follows: "The Tribunal has such jurisdiction to decide matters, and such powers to make orders and otherwise exercise any function in connection with any such decisions, as is conferred on it by any Act or law." 20 The procedure which is to be followed by the Tribunal is set out in Part 4 of the Act. There are some twenty-five sections in Part 4. They establish an elaborate and detailed procedural framework of which it is sufficient to say for present purposes that it reproduces provisions which, in my opinion, would normally be associated with a "Court" in the ordinary acceptance and perception of that term. 21 In my opinion, a fair application of the principles stated by Kitto J to the framework established by the Fair Trading Tribunal Act justifies the conclusion that the functions of the Tribunal, correctly understood, are not to be seen as merely administrative functions, or as delegated legislative functions, but rather as judicial functions. I conclude, therefore, that the Fair Trading Tribunal as established by the Fair Trading Tribunal Act 1998 (NSW) is a "court" for the purposes of section 6 of the Suitors' Fund Act. 22 What has thus far been said establishes that there is jurisdiction in this Court to make an order that the second defendant have a certificate under section 6 of the Suitors' Fund Act. Whether such an order should in fact be made is, of course, a question calling for the principled exercise by this Court of a judicial discretion. In exercising that discretion, it is appropriate to bear in mind the following guidance given by the Court of Appeal in Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd [1985] 1 NSWLR 491, per Kirby P and Samuels JA at 494C-D: "The section appears in a statute the purpose of which is the relief of a party who incurs or becomes liable for costs not through his own decision or conduct but because of some error of law of the court appealed from: ………………. . The history of the legislation, and indeed its terms, make it plain that the purpose which must be kept in mind in its interpretation and application is the relief of litigants against the costs inevitably incurred when appeal review discloses an error of law requiring correction. The object is to ensure that litigants do not, as in the past, bear the costs thereby occasioned but that these costs are spread, by way of the fund, to mitigate the hardship to litigants that would otherwise flow." 23 I am satisfied that there is no good cause shown for refusing to make an order in the present case. 24 I make the following formal orders: (1) I order the second defendant to pay the plaintiff's costs of the appeal to this Court against the ruling as to jurisdiction of the first defendant in Claim Number C0/1999-01234. (2) I order that the second defendant have in respect of such costs an indemnity certificate under the Suitors' Fund Act 1951 . ******** Last Modified: 11/10/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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