New South Wales Supreme Court CITATION : Byrnes v The Waffle Pod People & Anor [2001] NSWSC 672 Common Law Division CURRENT JURISDICTION: Administrative Law List FILE NUMBER(S) : SC 30002 of 1999 HEARING DATE(S) : 2 August 2001 JUDGMENT DATE : 8 August 2001 James Warren Byrnes (Plaintiff) PARTIES : v The Waffle Pod People Pty Ltd (formerly Ribbed Raft Foundation Systems Pty Ltd) Trading as Inrange Concrete (NSW) and Trading as Sartus (NSW) (Footpath & Driveway Division) (First Defendant) Consumer Claims Tribunal of New South Wales (Second Defendant) JUDGMENT OF : Master Malpass LOWER COURT Consumer Claims Tribunal JURISDICTION : LOWER COURT BPA 96/311 - BPA 96/314 (inclusive) FILE NUMBER(S) : LOWER COURT Mr Smith JUDICIAL OFFICER : Mr M Pesman (Plaintiff) COUNSEL : Mr D L Warren (First Defendant) N/A (Second Defendant) In Person (Plaintiff) SOLICITORS : Gordon Robilliard & Plowman (First Defendant) I V Knight - Crown Solicitor - Submitting appearance (Second Defendant) CATCHWORDS : Judicial review of decisions of tribunal - alleged lack of jurisdiction by reason of erroneous admission of unstamped guarantee and the splitting of a claim that exceeded the monetary limit. Consumer Claims Tribunals Act 1987, s 12, LEGISLATION CITED : s 12 (2) (b) (i). Stamp Duties Act 1920. CASES CITED : N/A DECISION : See Paragraphs 19 - 20. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST MASTER MALPASS WEDNESDAY 8 AUGUST 2001 30002 of 1999 JAMES WARREN BYRNES v THE WAFFLE POD PEOPLE PTY LTD (FORMERLY RIBBED RAFT FOUNDATION SYSTEMS PTY LTD) TRADING AS INRANGE CONCRETE (NSW) AND TRADING AS SARTUS (NSW) (FOOTPATH & DRIVEWAY DIVISION) & ANOR JUDGMENT 1 The plaintiff brings these proceedings against two defendants. The first defendant was the applicant in each of four applications brought by it against inter alia the plaintiff in the Consumer Claims Tribunal (the Tribunal). The second defendant is the Tribunal itself and it has played little part in these proceedings. 2 In each of the applications, the plaintiff was sued as a guarantor pursuant to a guarantee dated 26 February 1996. The subject debts were as per invoice. Five separate invoices had been issued to the principal debtor. Each invoice related to a separate supply of goods. The goods were delivered to different building sites. Although it has been said that all of the goods were supplied prior to the execution of the guarantee, at least one invoice was issued after that time. 3 Limited material has been placed before the court. Exhibit A is a copy of the guarantee (it is a guarantee to pay "the debts" of the relevant principal debtor). Exhibit B comprises a copy of each invoice. Exhibit C comprises a copy of each of four decisions made by the Tribunal on 27 March 1997 in the applications. In addition to this material the first defendant read paragraphs 1 - 8 of an affidavit sworn by Mr Markich. 4 The material read from the affidavit sworn by Mr Markich provides some history as to what took place before the Tribunal. 5 The applications came before it on 5 December 1996. On that day Mr Referee Cornish was presiding. Evidence was taken. The plaintiff admitted owing some money, but he informed the Tribunal that his solicitor had advised him that it did not have jurisdiction. It seems that this contention was rejected by the Referee. The proceedings were then adjourned to a date in late January 1997. On that day, the plaintiff did not appear. He had sent a facsimile to the Tribunal indicating that he could not attend on that day because he was overseas getting married. Once again, the proceedings were adjourned. This time until late February. On that occasion, once again the plaintiff did not appear. Yet another facsimile had been sent to the Tribunal. Finally, the proceedings were adjourned to the 27 March 1997. 6 On 27 March 1997, Mr Referee Smith was then presiding. Once again, the plaintiff did not appear. A hearing took place ex parte. The Referee made a determination in each application. In the first application the plaintiff was ordered to pay the sum of $24,233. In the second application, the plaintiff was ordered to pay the sum of $6,410.90. In the third application, he was ordered to pay the sum of $24,691.57. In the fourth application he was ordered to pay the sum of $1,500. The court has been told that the sum total of the debt is $56,735.67. 7 These proceedings were commenced by Summons. The proceedings were brought by way of judicial review pursuant to s 12 of the Consumer Claims Tribunals Act 1987 (the Act). In effect, it was sought to bring a challenge against the orders made on 27 March 1997. The process in fact refers to orders made on 4 April 1997. This was the day on which the Tribunal issued its notice of each order. No application for judicial review of what happened on 5 December 1996 has been made. 8 These proceedings have been on foot for some time. During that period the court file underwent some explosion with the filing of pleadings and various affidavits. What generated all this activity has been left unexplained. When the matter came on for hearing on 2 August 2001, largely, this material was put aside. 9 Ultimately, the plaintiff came to propound two matters only. Both were put pursuant to s 12 (2) (b) (i). This provision enables a challenge where the Tribunal had no jurisdiction to make the order. 10 The first basis of challenge concerns a matter of stamp duty. It seems to be common ground that a copy of the guarantee was placed before the Tribunal. There has been inconclusive debate between the parties as to whether or not this document attracted stamp duty at all. Also, it seems to be common ground that no undertaking to pay any stamp duty liability was given to the Tribunal. An undertaking to that effect was given to this Court to enable the copy guarantee to make it into evidence in these proceedings. It was tendered by the plaintiff. 11 It is now said that because an unstamped guarantee was placed before the Tribunal, the Tribunal came thereby to lack jurisdiction to entertain each of the four applications. 12 Quite rightly, the submission was but faintly put. During argument, the court was referred to provisions of the Stamp Duties Act 1920. These provisions inter alia deal with the admissibility of unstamped instruments. Certain of these provisions seem to be referable to the receiving of such instruments in any court of civil judicature. 13 Firstly, I shall leave aside the contentious question of whether or not the copy guarantee was chargeable with stamp duty. This was a question upon which the court received inadequate assistance. Secondly, I leave aside the question of whether or not the statutory provisions had any application to what took place before the Tribunal. This was a question that was not argued at all. 14 It seems to me that the plaintiff's contention is untenable. In substance, it is really the propounding of the proposition that an erroneous reception of evidence (if in fact this was the case) during the hearing brought about a loss of statutory jurisdiction. I do not accept that the reception of an unstamped instrument has any impact on the question of the jurisdiction of the Tribunal to entertain each of the four applications. 15 For the purposes of the hearing of these proceedings, counsel reached a consensus to the effect that the monetary limit of the jurisdiction in relation to a consumer claim (other than a building claim) was in the sum of $25,000. It must be borne in mind that this is a limitation on the amount of the order that can be made. 16 The second challenge to jurisdiction was founded on a contention that this monetary jurisdictional limit had been exceeded. At best, it could be a challenge to part only of amounts which were the subject of the orders. This was a matter that was not addressed. 17 In my view, this contention was also devoid of merit. Counsel for the plaintiff was unable to refer to any authority in support of his contention. It was said to be based on a construction of the guarantee itself. This guarantee was described as being a "single guarantee". It was said, that the guarantee gave rise to one cause of action only for the totality of the debts owed by the principal debtor prior to the execution of the guarantee. It was said that in bringing the four applications the first defendant had been engaged in a splitting of the claim. In my view, this contention was also untenable. 18 In my view there were individual principal debts. Each gave rise to a separate cause of action capable of being litigated individually. The proper construction of the guarantee does not change that state of affairs. 19 I dismiss the proceedings. The plaintiff is to pay the costs of the proceedings. The Exhibits may be returned. 20 On 5 February 1999, Sperling J granted an injunction on an interim basis. It is common ground that, if the plaintiff is unsuccessful in these proceedings, this injunction should be dissolved. Accordingly, I dissolve that injunction. ********** Last Modified: 08/09/2001 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.