New South Wales Supreme Court CITATION : McCloy v Fair Trading Tribunal [2001] NSWSC 71 CURRENT JURISDICTION: Common Law Administrative Law List FILE NUMBER(S) : SC 30047 of 2000 HEARING DATE(S) : 21 February 2001 JUDGMENT DATE : 21 February 2001 D F McCloy Pty Limited (Plaintiff) PARTIES : v The Fair Trading Tribunal (First Defendant) Advance Flooring Co Pty Ltd (Second Defendant) JUDGMENT OF : Master Malpass LOWER COURT Fair Trading Tribunal JURISDICTION : LOWER COURT CM 1999/7561 FILE NUMBER(S) : LOWER COURT K Ross JUDICIAL OFFICER : S Higgins (Plaintiff) COUNSEL : N/A (First Defendant) Mr G J Gemmell (Second Defendant) Paul Hines (Plaintiff) SOLICITORS : I V Knight - Crown Solicitor - Submitting Appearance (First Defendant) Ciaglia Legal (Second Defendant) CATCHWORDS : Relief or remedy sought pursuant to s 60 (3) on ground of want of jurisdiction - jurisdiction of the Tribunal to determine the matter not disputed - no jurisdiction to grant the relief or remedy sought by the plaintiff - discretionary consideration - commercial use as tourist, holiday or overnight accommodation. LEGISLATION CITED : Fair Trading Tribunal Act 1988, s 60, s 63. CASES CITED : N/A DECISION : See paragraph 20. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST MASTER MALPASS WEDNESDAY, 21 FEBRUARY 2001 30047/00 - D.F. McCLOY PTY LIMITED v THE FAIR TRADING TRIBUNAL & ANOR JUDGMENT 1 MASTER: The second defendant did certain building work for the plaintiff. It involved doing repair work to water damaged parquetry flooring in two penthouses in the Oakford Apartments. Following a dispute between the parties, the second defendant made application to the Fair Trading Tribunal (the Tribunal) seeking a money order for the sum of $9,855. 2 The application proceeded to a hearing and a determination was made. The plaintiff was ordered to pay the sum of $8,000. 3 No dispute was raised as to the jurisdiction of the Tribunal and accordingly the Tribunal gave no ruling as to its jurisdiction. 4 Subsequently, the plaintiff made an application for a re-hearing under s 63 of the Fair Trading Tribunal Act 1988 (the Act). This application itself was yet a further submission to jurisdiction. The application was unsuccessful. 5 On 5 July 2000 the plaintiff filed the summons in these proceedings. In substance, the plaintiff seeks to have the determination and orders made by the Tribunal set aside on the basis of lack of jurisdiction. 6 The Act provides a limited avenue of challenge. For present purposes, this limited avenue is to be found in s 60. Section 60 is expressed in the following terms:- " 60 Review by prerogative writ etc generally excluded (1) Except as provided by this section, a court of record has no jurisdiction to grant relief or a remedy by way of: (a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or (b) a declaratory judgment or order, or (c) an injunction, in respect of a matter heard and determined or to be heard or determined by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter. (2) A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in which the jurisdiction of the Tribunal to determine the matter was disputed, where the ground on which the relief or remedy is sought is that: (a) the Tribunal gave a ruling as to its jurisdiction that was erroneous, or (b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed. (3) A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in which the Tribunal has made an order, where the ground on which the relief or remedy is sought is that: (a) the Tribunal had no jurisdiction to make the order, or (b) in relation to the hearing or determination of the matter, a party to the claim had been denied natural justice." The plaintiff seeks relief of a kind that is referred to in subs (1) thereof. 7 Before proceeding to the question of jurisdiction had by the Tribunal, it seems to me that there are two preliminary considerations. Firstly, there is the question of whether this Court itself has jurisdiction to entertain the plaintiff's application. Secondly, if it does, there is the question of whether it should exercise that jurisdiction and entertain the application. 8 The first question is a matter of statutory construction. I am informed from the Bar Table that it is a question which is yet to be decided by a court. 9 Subsection (3) identifies the limited relief or remedy of the kind specified in subs (1) which the Court is not precluded from granting (one of which is where the ground on which the relief or remedy is sought is that the Tribunal had no jurisdiction to make the order). 10 This subsection has to be read in the context of the other provisions of the Section (in particular, those of subs (2)). It seems to me that subs (2) has to be read as a provision which restricts the availability of relief founded on the ground of lack of jurisdiction to those cases where the jurisdiction of the Tribunal to determine the matter was disputed. 11 As this was not the position in this case, I am of the view that this Court does not have jurisdiction to entertain this application. 12 Even if a different view were to be taken on that question, it seems to me that it remains an application which should not be entertained by the Court, as jurisdiction was not at any stage put in issue during the proceedings in the Tribunal. It was left to deal with the matter on the basis of the evidence put before it and the submissions made to it. 13 Generally speaking, courts exercising an appellate or review jurisdiction are loath to entertain matters that were not put in issue in the lower court. 14 The plaintiff says that it did not have legal advice until prior to the bringing of these proceedings. However, regard must be had to all of the relevant circumstances of this case. The dispute concerns a relatively modest amount. There seems to be no reason why the plaintiff (who was a builder) could have obtained legal advice if it had wished to do so. It has had the benefit of a full hearing and a re-hearing. It is in the public interest that there be finality in litigation. Accordingly, as I have said, in the circumstances of this case I do not consider that the plaintiff should now be allowed to agitate the question of jurisdiction in this Court. 15 Although it is now academic, in deference to the other arguments put by counsel, I now turn to the question of the jurisdiction of the Tribunal itself. The evidence is relatively sparse and not particularly helpful. The material suggests that the two penthouses were what may be described as serviced apartments. The penthouses are two of 119 apartments. They are located in the Darling Harbour area. Whilst there are 119 apartments, there are only 34 car parking facilities. For completeness, I should add that largely the material now relied on was not put before the Tribunal. 16 The task for the Court is to construe various statutory provisions and regulations in the context of this limited material. 17 It is unnecessary to spell out in detail the relevant provisions. The real issue propounded by the plaintiff may be restricted to a matter of whether or not jurisdiction had been taken away from the Tribunal by reason of the serviced apartments being designed, constructed or adapted for commercial use as tourist, holiday or overnight accommodation. The plaintiff bears the onus on this issue and I am not satisfied that it has discharged the onus. 18 The concept of serviced apartments in the presently relevant context is ambiguous in nature. "Serviced apartments" may be designed, constructed or adapted for a range of commercial uses (of which uses those of tourist, holiday or overnight accommodation may merely be a part thereof). 19 It suffices to mention just a couple of other possible uses. Frequently (if not largely), serviced apartments in the city could be expected to be intended to be used by those staying in the city for business or personal purposes. This would embrace, inter alia, those who are staying in the city for the purposes of conducting their business activities, carrying out their occupational duties or for personal purposes of a non-tourist or holiday nature. It is reasonable to expect an intention of such user for periods longer than merely overnight accommodation. 20 The summons is dismissed. The plaintiff is to pay the costs of the summons. ********** Last Modified: 03/02/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.