Raw Business Services Pty Ltd v Felekos [2014] NSWCATAP 89

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Raw Business Services Pty Ltd v Felekos [2014] NSWCATAP 89 Hearing dates: On the papers Decision date: 21 November 2014 Jurisdiction: Appeal Panel Before: D Patten, Principal Member C Paull, Senior Member Decision: Dismissal of previous proceedings and right to commence fresh proceedings Legislation Cited: NSW Civil and Administrative Tribunal Act Re Orrell Colliery and Fire Bricks Co (1879) 12 Ch D681 Cases Cited: Pople v Evans (1968) 2 All ER 743 Category: Principal judgment Parties: Raw Business Services Pty Ltd (Appellant) Jim Felekos (Respondent) File Number(s): AP 14/46454 Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-06-16 00:00:00 Before: B Howe File Number(s): HB 14/08464

reasons for decision 1On 2 September 2013 the respondent Jim Felekos commenced proceedings against Freedom Screens and Rodd Gruggen in the Consumer Trader and Tenancy Tribunal number 13/46290. On 2 September 2013 Raw Business Service Pty Ltd was joined as a respondent pursuit to s26(4) of the Consumer Trader & Tenancy Act. 2Subsequently further interlocutory order were made including that the original respondents be removed from the proceedings and that the case be fixed for hearing on 3 February 2014 by which date NCAT had replaced the previous Tribunal. 3It seems Mr Felekos did not appear on February 3 and the proceedings were dismissed under s55 of the NCAT Act. We do not need to consider the reason for Mr Felekos' failure to appear as he did not avail himself of the right to apply for reinstatement of the proceedings pursuant to s55 (2) NCAT Act. 4Rather he commenced fresh proceedings in this Tribunal on 12 February for the same cause of action naming as respondent only Raw Business Services Pty Ltd the present appellant (The substantive proceedings). The proceedings were numbered 14/08464. The appellant complained to the Registrar that the new proceedings should not have been accepted for filing in light of the previous dismissal but the Registry notified it, correctly, that it has no right to reject documents for filling which are valid on their face. The appellant was advised to raise the matter with the Tribunal at the first hearing. 5The fresh hearing took place on 21 March before Mr B Howe. It does not appear from the papers before us whether the jurisdictional point was raised and there is no mention of it in Mr Howe's reasons. However both parties were represented and at the conclusion of the hearing Mr Howe made an order against the appellant which is the subject of the present appeal namely: 1. The Tribunal orders that the respondent, RAW BUSINESS SERVICES PTY LTD PO BOX 195 COOGEE NSW 2034 is to carry out the following work, at no cost to the applicant, on or before 16 Jul-2014 in a proper and workmanlike manner. Details of Work order: Reinstall/rectify the notorised flyscreen to the standard that is applicable to the model when originally installed. 6The only ground of appeal relied on is in effect that the Tribunal has no jurisdiction to hear the matter unless and until the previous order of dismissal is set aside. That is undoubtedly a question of law upon which an appeal lies as of right. 7However it has long been the law that the dismissal of proceedings without a hearing on the merits (which could give rise to issue estoppel or res judicata) does not prevent the commencement of fresh proceedings on the same cause of action. See for instance Re Orrell Colliery and Fire Bricks Co (1879) 12 Ch D681 and Pople v Evans (1968) 2 All ER 743 and the cases they cite. 8The principle is now enshrined in s 91 of the Civil Procedure Act. Of course courts and tribunals always have the power to prevent abuses of their processes, for example proceedings may be stayed where there is an outstanding order for costs in the earlier proceedings until the costs have been paid. 9In this case however no order was made in the earlier proceedings except that they be dismissed in the absence of the applicant. No issue between the parties was tried and accordingly there could be no estoppel. 10The question of law raised by the appellant in its notice of appeal must be resolved adversely to it. On the face of the papers before us we detect no other error of law. The learned member made appropriate findings of fact and gave more than adequate reasons for his decision. No application was made for leave to appeal on the merits. 11We make these orders: (1)Appeal dismissed. (2)Order made by the Tribunal below varied to the extent that the work ordered to be carried out is to be so carried out within 6 weeks after the date of publication of this decision. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar