Cary Entertainment Pty Ltd v Australian Postal Corporation (No 2) [2000] RSLT 19

……………. 1 Decision [2000] RSLT 19 THE RETAIL SHOP LEASES ACT --------------------------------------------------------------------------------------------------------------------- In the matter of Dispute 110/1999 CARY ENTERTAINMENT PTY LIMITED - Claimant - and - AUSTRALIAN POSTAL CORPORATION - Respondent DECISION (On Application for Costs) Given in Brisbane on 24 February, 2000. -- 1 of 2 -- ……………. 2 Decision When this matter came on for a directions hearing by telephone conference on 24 January 2000, the respondent’s agent made an application for costs under the amended Section 91 of the Retail Shop Leases Act (1994). The agent for the claimant opposed any such order. I invited the parties to make written submissions, the respondent by 27 January 2000, and the claimant by 1 February 2000. Written submissions were duly made. It is clear from the letters in which those submissions were made, that each party has been provided with a copy of the other party’s submissions, so it is unnecessary for me to set those submissions forth at length in this decision. S.91 as amended by the Retail Shop Leases Amendment Act (1999) provides, in effect, that in the absence of an order under subs. (3) each party must bear its own costs. Subs.(3) sets out the circumstances in which a Tribunal may make an order for costs against that party. One of those bases is the incurring of costs by the party applying for the order because the party against whom the application for costs is made sought an adjournment of a hearing without giving reasonable notice. But by subs. (1), section 91 applies “to the costs of the Tribunal’s hearing of a residential tenancy dispute.” It is, therefore, necessary to decide for the purposes of this present application whether a directions hearing held pursuant to s.66 of the Act amounts to “the Tribunal’s hearing” of the dispute. Some guidance can be obtained from subs.(1) of s.66 which reads: “Before the retail tenancy dispute is heard by the Tribunal, the Chairperson may decide to hold a directions hearing.” The clear implication from that subsection is that the directions hearing does not amount to a hearing of the dispute for the purposes of subs. 91.(1) of the Act. Further, except where the Chairman dismisses the claim as being beyond the Tribunal’s jurisdiction, the dispute is not determined at a directions hearing. For those reasons, I refuse the respondent’s application. I might add that, were I satisfied that I had power to award costs in the circumstances where a directions hearing is adjourned at the request of one party without adequate notice to the other party, and without the other party’s consent, I should be inclined to make an order for costs against the party which sought the adjournment, but except under very unusual circumstances, the amount ordered would be small. A W Couper, Chairman. -- 2 of 2 --