Supreme Court New South Wales Medium Neutral Citation: Sophia McGinn v NSW Civil and Administrative Tribunal [2018] NSWSC 630 Hearing dates: 8 May 2018 Decision date: 08 May 2018 Jurisdiction: Common Law Before: Button J Decision: (1) The application of the solicitor for the second defendant that the proceedings be summarily dismissed against the second defendant is itself dismissed. (2) The proceedings are listed for directions before the Registrar of the Common Law Division in two weeks from today, at 9 am on Tuesday 22 May 2018. Catchwords: CIVIL PROCEDURE – application for summary dismissal of the proceedings of the plaintiff against the second defendant – no formal notice of motion – whether self-represented plaintiff appreciated the nature of the application to be made – second defendant true opponent and contradictor in proceedings – contention of plaintiff not doomed to failure – application dismissed Cases Cited: McGinn v Barilla [2018] NSWCATAP 85 Category: Procedural and other rulings Parties: Sophia McGinn (Plaintiff) NSW Civil and Administrative Tribunal (First Defendant) Pasquale Barilla (Second Defendant) Representation: Solicitors: Plaintiff self-represented Peter Collins & Associates (Second Defendant) File Number(s): 2018/127488 Publication restriction: Nil. ex tempore – revised Judgment Introduction 1. This matter came before me in the Duty List this morning. I was in a position to return to it shortly after 12 midday, and a hearing of approximately one hour took place. At the conclusion of that hearing, I indicated that I respectfully rejected the application of the solicitor for the second defendant (Mr Barilla) for summary dismissal of the claim brought against him by Ms Sophia McGinn (the plaintiff), and that I would provide reasons for that course later today. This short judgment constitutes those reasons. Background 1. The background as I understand it is as follows. Mr Barilla was the tenant and Ms McGinn was the lessor of residential premises in Ashfield. In the usual way, a bond was provided by Mr Barilla to Ms McGinn. For some reason, her agent failed to lodge that bond with the Rental Bond Board. Eventually, the two parties ended up in dispute in the NSW Civil and Administrative Tribunal (NCAT). 2. At first instance, the plaintiff failed, in that she was ordered to pay Mr Barilla $3,150, that being the amount of the bond of $3,400 minus an amount of $250 that Mr Barilla conceded was appropriate for cleaning. 3. Ms McGinn appealed to the Appeal Division of NCAT: see its judgment McGinn v Barilla [2018] NSWCATAP 85. The main thrust of her grounds of appeal (it is to be noted that at all relevant times she was and is unrepresented) was that NCAT had no jurisdiction to order the transfer or repayment of a bond that, for whatever reason, had not been lodged with the Rental Bond Board. In a judgment that I respectfully regard as detailed and comprehensive, the Appeal Division rejected her contention, although there was an adjustment to the orders made. 4. By way of summons filed in this Court on 23 April 2018, Ms McGinn has sought judicial review of the decision of the Appeal Division of NCAT. NCAT is the first defendant and Mr Barilla is the second. Submissions of the second defendant 1. As I have said, the application today of Mr Collins, solicitor for Mr Barilla, was that the proceedings should be dismissed as against his client. 2. In a nutshell, it was said that, by way of a recent letter, Ms McGinn had been put on notice that the application would be made today, despite the fact that no notice of motion was filed or served to that effect. It was also said that, in truth, the quarrel of Ms McGinn is with NCAT, not with Mr Barilla. Furthermore, it was said that the order that she has sought against Mr Barilla is legally inapposite. The true remedy, it was said, would be for Ms McGinn to pursue her complaint against NCAT in this Court in an effort to correct asserted legal error; if she wished, she could separately commence simple debt recovery proceedings against Mr Barilla in the Local Court (it was not conceded for a moment, of course, that Mr Barilla had any liability to Ms McGinn). Determination 1. I was not satisfied that I should take the very large step of ordering summary judgment. That is so for the following reasons. 2. First, I was not affirmatively satisfied that Ms McGinn truly appreciated the nature of the application that would be made today, bearing in mind the fact that she is unrepresented; the absence of a formal notice of motion; the fact that English is plainly her second language; and the fact that, the moment she appeared before me at 10 am, she was complaining about the bringing of the application today. 3. Secondly, it is true that Mr Barilla has little interest in the correct interpretation of the powers of NCAT with regard to a bond that has not been lodged. But in my opinion, he is the "true" opponent and contradictor in these proceedings, just as he was in the Appeal Division of NCAT. And it is tolerably clear that, if the plaintiff succeeds in her application for judicial review, one way or another, in seeking to have the order of the Appeal Division reversed, she will seek to have the moneys transferred to Mr Barilla provided to her. 4. Thirdly, as one might expect, these proceedings for judicial review initiated by a person who is not legally qualified suffer from various formal defects. But, unless extreme or truly embarrassing, such defects should not, in my opinion, lead to summary dismissal. And in any event, in my opinion it is clear what Ms McGinn is trying to say: the Appeal Division, she asserts, had no power to provide the bond cheque to Mr Barilla, and Mr Barilla should provide her with an equivalent sum (one understands that the cheque itself has long left the possession of Mr Barilla). 5. Fourthly and finally, the statutory interpretation for which Ms McGinn contends would be, with respect to her, a surprising outcome. At [38] of the judgment of the Appeal Division, an example is given that cogently argues for the contrary. But merely because a contention may be weak or questionable is no ground for summary dismissal of the proceedings founded upon it. To express that another way, I do not possess an affirmative satisfaction that the contention of Ms McGinn, including its ancillary effect on the interests of Mr Barilla, is doomed to failure. 6. For all of the foregoing reasons, I declined to grant summary dismissal of the proceedings of the plaintiff against the second defendant. Other aspects of the matter 1. Separately, other, less serious criticisms were made of the proceedings: the absence of an address for service; the assertion that mandamus cannot run against a private person; and perhaps other criticisms. In the circumstances, I do not propose to litigate those today. All of those criticisms remain on foot, and may be reactivated by the solicitor for Mr Barilla at his discretion. 2. I do take the liberty of respectfully suggesting to Ms McGinn that she should urgently obtain legal advice about these proceedings, not only to regularise her pleadings, not only in the interest of the Court and her opponent, but also as against the possibility that she may be ordered to pay many thousands of dollars in legal fees if she were ultimately to fail. [No costs or disbursements were sought by the plaintiff.] Orders 1. I make the following orders: 1. The application of the solicitor for the second defendant that the proceedings be summarily dismissed against the second defendant is itself dismissed. 2. The proceedings are listed for directions before the Registrar of the Common Law Division in two weeks from today, at 9 am on Tuesday 22 May 2018. ********** 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. Decision last updated: 09 May 2018