Billy Baxter's Cafe (North Queensland) Pty Limited v Commonwealth bank Officers Superannuation Corporation Pty Limited [1998] RSLT 1

[1998] RSLT 1 RETAIL SHOP LEASES ACT 1994 In the matter of Dispute 11/1998 BILLY BAXTER'S CAFE (NORTH QUEENSLAND) PTY LIMITED - Claimant - and - COMMONWEALTH BANK OFFICERS SUPERANNUATION CORPORATION PTY LIMITED - Respondent DECISION (on Application to Refer this Dispute to a Court) Given on 14 September, 1998. in Brisbane -- 1 of 4 -- Billy Baxter's Cafe-v-C'wealth Bnk Off Sup Decision - Page 2 By a Notice of Dispute dated 22 January 1998, and filed on 27 January 1998 in the Retail Shop Leases Registry, Billy Baxter's Cafe (North Queensland) Pty Ltd ("the Claimant") claimed from Commonwealth Bank Officers' Superannuation Corporation Limited ("the Respondent") compensation on the grounds set out in the Notice. That Notice was filed pursuant to s.55 of the Retail Shop Leases Act 1994 ("the Act") and was referred to mediation in accordance with the Act. The Dispute was not resolved by mediation; it was referred to the Chief Executive pursuant to s.63 of the Act and by him to a Retail Shop Lease Tribunal pursuant to s.65. By a statement of the orders sought, dated 23 June 1998, the Claimant abandoned any claim for compensation in excess of the Tribunal's monetary jurisdiction, thus bringing the claim within the Tribunal's jurisdiction. (See generally the judgment of Dowsett J in LEDA Holdings Pty Ltd -v- Vasilakis Holdings Pty Ltd and Ors (unreported) No. 8461 of 1996 on this point.) It is not disputed that there is a retail shop lease involved in this Dispute. The claim is before the Tribunal as the result of ss.42, 43 and 44 of the Act. Section 42 implies into retail shop leases (with certain presently irrelevant exceptions) the covenants set out in s.43. Paragraph (a) of subs.43.2 confers on a lessee a contractual entitlement to be paid compensation by the lessor under certain circumstances. (That is not to say that the amount of compensation is to be calculated on the breach of contract basis.) Section 44.1 of the Act provides that if the lessor and the lessee cannot agree upon the amount of compensation, the compensation payable to the lessee is to be decided by the dispute resolution process. (Part 8 of the Act describes that process, which is the process that has been followed to date in this matter.) The lessor and the lessee have not agreed; the matter is properly before the Tribunal. The Respondent submitted orally and submits in writing that the Tribunal should exercise the discretion conferred on it by s.111.(2) of the Act, and order that the Dispute be removed in whole, to a Court. The Respondent has not named any particular Court, but it is clear that it contemplates a Court having jurisdiction under the (Commonwealth) Trade Practices Act 1974 ("the T.P. Act"). That submission is not founded in any way upon the Claimant's claim. Rather, the Respondent argues that it has a cross- claim under certain sections of the T.P. Act which falls outside the -- 2 of 4 -- Billy Baxter's Cafe-v-C'wealth Bnk Off Sup Decision - Page 3 Tribunal's jurisdiction. The Respondent is obviously correct in submitting that the Tribunal does not have jurisdiction under the T.P. Act, but such a cross-claim as that referred to by the Respondent, if it is open to the Respondent, does not of itself deprive the Tribunal of its jurisdiction to deal with the claimant's claim. Given the Tribunal's limited jurisdiction, it is not for the Tribunal to determine whether or not the Respondent has a cross-claim under the T.P. Act. Furthermore, the Tribunal has not been given any indication that the Respondent has commenced proceedings in any Court in respect of such a cross-claim. There is a suggestion in the Respondent's submissions to the possible institution of such proceedings upon the Dispute being referred to a Court, but that does not commit the Respondent to proceed with an action in a Court. It is conceivable that no such action would be commenced by the Respondent. There is no pleaded claim which the Tribunal could consider to be arguable or otherwise in a Court exercising Federal jurisdiction. The agent for the Respondent referred to a number of authorities as to the prospects of success of such a claim and as to the effect the institution by the Respondent of separate proceedings would have upon the nature of the claimant's claim. He referred to the infusion into that claim of elements of Federal law, which, he submitted, would take the claim outside the Tribunal's jurisdiction, and went on to submit that if the Tribunal considered that the Respondent had an arguable cross-claim, then the Tribunal should recognise the Federal elements and order that the matter presently before the Tribunal be referred to a Court - again, the particular Court was not specified. I mention in parenthesis that the Respondent's written submission numbered 5 as to the effect of s.94 of the Act appears to be incorrect. The authorities cited are binding on the Tribunal where they bear upon its jurisdiction. But that is not the case here. The issues between the parties presently before the Tribunal are whether the Claimant has a contractual right to compensation under the Act, and, if it does, what is the amount to which it is entitled against the Respondent - clearly, questions to be answered by the Tribunal under the Act. Further, there is no present litigation between the parties in which the Tribunal does not have jurisdiction. There is no element of Federal law in the Claimant's claim. The T.P. Act is irrelevant in the circumstances. I am aware of the problems associated with litigating disputes first in one forum and then in another, and of the fact that such a situation may come about if at some later stage the Respondent commences proceedings in some -- 3 of 4 -- Billy Baxter's Cafe-v-C'wealth Bnk Off Sup Decision - Page 4 other forum, but at present it is a mere possibility. Further, I am mindful of the dilemma in which the parties may be placed if the Tribunal deals with the Claimant's claim presently before it, and at some later time a Court is called upon to deal with the cross-claim talked about by the respondent, in that the parties would perhaps seek to reverse their submissions. But, again, that is a mere possibility. Neither of such mere possibilities requires reference of the Claimant's claim to a Court. This Tribunal is not invested with jurisdiction to consider any claim or cross-claim that the Respondent may allege against any person or company other than the Claimant Lessee. The existence or non-existence of any such claim is entirely irrelevant to the Tribunal's decision on the Respondent's application to refer the present Dispute to a Court. As to questions of policy, the Tribunal considers that ss.3 (Object of the Act) and 4 (How the Object is to be Achieved) of the Act require it, in circumstances such as those prevailing here, to determine the Claimant's claim. The respondent has not put forward any sufficient reason for exposing the Claimant to the delay and expense which would follow reference of the Dispute to a Court. As Chairman constituting the Tribunal for the purpose of this directions hearing, I have not formed the opinion that the retail tenancy dispute presently before the Tribunal should be heard by a Court. The Tribunal makes no order under s.111(2) of the Act. A W Couper, Chairman. -- 4 of 4 --