New South Wales Supreme Court CITATION : J & P Olzomer Pty Limited v The Owners of Strata Plan 67534 & Anor [2010] NSWSC 965 HEARING DATE(S) : 24 August 2010 JUDGMENT DATE : 24 August 2010 JUDGMENT OF : Garling J EX TEMPORE JUDGMENT DATE : 24 August 2010 DECISION : The Notice of Motion dated 5 August 2010 be dismissed and costs of the notice of motion be costs in the cause. CATCHWORDS : PRACTICE & PROCEDURE – Separate question – Whether determination of separate question would dispose of issues in the proceedings – No real saving of time or costs to the parties. - ADMINISTRATIVE LAW – Judicial review of Consumer, Trader and Tenancy Tribunal decision to transfer proceedings to District Court of NSW. Civil Procedure Act 2005 LEGISLATION CITED : Consumer, Trader and Tenancy Tribunal Act 2001 Home Building Act 1989 Uniform Civil Procedure Rules 2005 CATEGORY : Procedural and other rulings CASES CITED : Tepko Pty Limited v The Water Board (2001) 206 CLR 1 J &P Olzomer Pty Limited (ACN 001 890 928) (P) PARTIES : The Owners of Strata Plan 67534 (D1) Consumer, Trade & Tenancy Tribunal of NSW (D2) FILE NUMBER(S) : SC 2009/298130 (P) S.J. Wheelhouse SC with A. Douglas-Baker COUNSEL : (D1) G. Sirtes SC with M. Dolenic (D2) Submitting appearance (P) The Builders' Lawyer Pty Ltd SOLICITORS : (D1)Mills Oakley Lawyers (D2) IV Knight, Crown Solicitor IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION GARLING J TUESDAY, 24 AUGUST 2010 2009/298130 J & P OLZOMER PTY LIMITED v THE OWNERS OF STRATA PLAN 67534 & ANOR JUDGMENT 1 HIS HONOUR: In this matter, the defendant moves on a notice of motion which was filed on 5 August 2010 seeking an order pursuant to rule 28(2) of the Uniform Civil Procedure Rules 2005 ("UCPR") that the Court determines separately and before any other question in the proceedings, the following question: "On the assumption that the Consumer, Trader and Tenancy Tribunal of New South Wales had no jurisdiction to determine the claim HB07/58709, was it nevertheless empowered pursuant to section 23 of the Consumer, Trader and Tenancy Tribunal Act 2001 to transfer the proceedings to a Court that had jurisdiction in the matter". 2 The notice of motion sought additional relief as well. 3 Rule 28(2) of the UCPR is a discretionary rule. It is in these terms: "The Court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings". 4 In acting upon that rule and in applying it, s 56 of the Civil Procedure Act 2005 enjoins the Court to give effect to the overriding purpose which is in these terms: "(1) The overriding purpose of this Act and of the rules of court in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. …" 5 It is also necessary to keep in mind in considering whether a separate question should be ordered what was said in Tepko Pty Limited v The Water Board (2001) 206 CLR 1 at [168] in the judgment of Kirby and Callinan JJ, namely: "The appeal should be allowed. However, we should not leave this case without making four comments. Both Mason P and Fitzgerald JA were critical of the course of limiting the issues to be tried that the primary judge adopted. In Perre v Apand Pty Ltd attention was drawn to difficulties that can be caused when that course is adopted. In light of the experience in this case, what was there said should be restated with emphasis. The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap." 6 At [52], Gaudron J in that case indicated her agreement of the observations of Kirby and Callinan JJ to which I have just referred. 7 The plaintiff in the proceedings, which is the respondent to the motion, opposes the order sought that there be a separate question formulated, heard and disposed of. After lengthy submissions, it became apparent that the principal ground upon which the plaintiff opposes the order is that the hearing and determination of the separate question would not dispose entirely of all of the issues in the proceedings and that there would be no benefit to be gained in terms of time or cost by hearing that separate question. 8 From the submissions it became apparent that the issues which the plaintiff contended would not be heard and completely disposed of, can be described in this way. First, the issue of whether or not the proceedings before the Consumer, Trader and Tenancy Tribunal ("the Tribunal") were a nullity because the Tribunal was never seized of jurisdiction to hear and determine the dispute which was articulated in the proceedings numbered HB07/58709. It is argued by the plaintiff that, since the tribunal derives jurisdiction only from statute, the provisions of s 48K(7) of the Home Building Act 1989 meant that the tribunal in the facts and circumstances which prevailed did not have any proceedings before it which were valid. 9 The second issue which the plaintiff contends would not be completely disposed of was whether the tribunal fell into reviewable error by failing to accord priority between both of the motions which were before it rather than hearing only one. One of those motions was that brought by the plaintiff seeking its removal from the proceedings on the basis that the Tribunal had no jurisdiction to hear a case against it. The other of the motions was that brought by the defendant seeking pursuant to s 23 of the Consumer, Trader and Tenancy Tribunal Act 2001, the transfer of the proceedings to the District Court of NSW. 10 The plaintiff contends that it was a reviewable error of the Tribunal to decide to hear the application for transfer under s 23 prior to determining whether it should be removed as a party. 11 The third issue which the plaintiff submits will not be completely determined by the separate question is whether upon its proper construction, and in the facts and circumstances which have occurred, s 23 of the Consumer, Trader and Tenancy Tribunal Act 2001 operates if proceedings are a nullity or if there is no jurisdiction or in some other circumstances. It is unnecessary for me to express a concluded view on this particular issue, but I must say that it does seem to me that although the motion identifying the separate question may express that question somewhat narrowly I would have thought that the substance of this issue would likely be covered by the hearing of a separate question. 12 The fourth issue which the plaintiff contends would not be completely determined by the answer of the separate question is whether the Tribunal gave adequate reasons for its decision to hear the transfer application under s 23 in priority to hearing the plaintiff's motion for removal. 13 It is inappropriate and unnecessary for me to express any view about the likely conclusion that this Court may come to in respect of any of those issues. However, the first three of those issues seem to me to be issues about which it could be said that they are properly arguable. Whether the Court will take the same view of the fourth issue is a matter upon which I express no final opinion. 14 It is apparent from the submission of the defendant that the real issue of concern which motivated the defendant to bring these proceedings seeking the identification of an answer to a separate question was the argument advanced by the plaintiff that this Court when undertaking the hearing of the judicial review proceedings, would be obliged to undertake a factual hearing as to whether the residential building work in question had taken place and been completed more than seven years before the claim was made against the plaintiff. 15 It is the submission of the plaintiff that this factual question must be determined by this Court and that this Court has no discretion in hearing the plaintiff's summons as to whether it will or will not determine that question. It is entirely understandable that the defendant, which is the applicant on the motion, would be concerned about the potential waste of the Court's time incurred by its embarking upon the hearing of such a lengthy issue. 16 I have some doubt whether in light of the issues which have been formulated it would be appropriate for this Court to embark upon the hearing of such a detailed factual question or whether in the exercise of its discretion for judicial review it would be appropriate for that factual question to be determined by either the Tribunal or the District Court of NSW. That is a matter upon which the Court will need to give some further consideration in due course. 17 Ultimately, I must balance the arguments of the defendant in favour of a separate question with the arguments and authority which stand in the way of the Court's discretion being exercised as the defendant seeks. It is a matter ultimately of determining what is both in the interest of justice and what is the most just, quick and cheap way of addressing the real issues in the proceedings. 18 In my view, the separate question even if reframed as was discussed in the course of argument, would not determine all of the issues in the proceedings. Even if answered favourably to the defendant in the way contended for, I am not satisfied that this would result in a termination of the entirety of the proceedings. To me, there will be a final hearing of this case whether the separate question goes ahead or not. I do not think that the apparent benefits of a separate question will result in any real saving of time or costs to the parties. 19 As well, the hearing of the determination of a separate question may give rise to rights of appeal or else a right to make an application for leave to appeal which would have the effect of substantially slowing the determination of the proceedings rather that making them quicker and more efficient. 20 I cannot be satisfied in all of the circumstances that it is appropriate for the Court to exercise its discretion to order a separate question and accordingly, I will dismiss the notice of motion of 5 August 2010. Orders (1) The Notice of Motion dated 5 August 2010 be dismissed. (2) Costs of the Notice of Motion dated 5 August 2010 be costs in the cause. (3) Plaintiff to file and serve a Further Amended Summons before 4pm, Friday, 27 August 2010. ********** 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.