Lina Socorro Obieta v Women's Housing Co Limited

[2009] NSWDC 201

CITATION:	Lina Socorro Obieta v Women's Housing Co Limited [2009] NSWDC 201
JUDGMENT DATE:	10 July 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
CATCHWORDS:	CIVIL LAW - application for stay of proceedings until conclusion of appeal of judgment of Judicial Registrar removing party to the proceedings - joining tribunal to appeal from its decision
LEGISLATION CITED:	Consumer, Trader and Tenancy Tribunal Act 2001 s 67(3)
CASES CITED:	Dobell v Blue Haven Pools and Spas Pty Ltd [2009] NSWCA 77
PARTIES:	Lina Socorro Obieta v Women's Housing Co Limited
FILE NUMBER(S):	108/09
SOLICITORS:	Ms Obieta (in person) Blake Dawson

JUDGMENT

1. I have delivered a judgment on the plaintiff’s notice of motion applying for me to disqualify myself from the further hearing of this matter on the grounds of apprehended bias. I have dismissed that application. Ms Obieta asks me to stay further proceedings in the appeal until she has an opportunity to appeal to the Court of Appeal, not from my judgment but from a judgment of the Judicial Registrar.

2. On 29 May 2009 the Judicial Registrar removed a party to these proceedings. The party was the Consumer, Trader and Tenancy Tribunal New South Wales. It had been named as a respondent to these proceedings, along with Women’s Housing Company Limited. The Tribunal applied successfully to the Judicial Registrar who, as I said, made that order. It is from that decision that Ms Obieta is appealing to the Court of Appeal. It is in reliance upon that appeal that she asks me to stay further proceedings in the appeal to me from the Tribunal.

3. It is of some importance, in my opinion, that before being removed as a party the Tribunal had filed a submitting appearance, submitting to all orders sought by the plaintiff, except as to costs. It seems to me, therefore, that even if Ms Obieta is successful in the Court of Appeal and the Tribunal is restored as a party, it proposes to make no meaningful contribution to the disposal of the appeal to me from the Tribunal.

4. I am fortified in the view I take by a decision of the Court of Appeal drawn to my attention by Ms Huggins, who appears for the Women’s Housing Company. The decision is Dobell v Blue Haven Pools and Spas Pty Ltd [2009] NSWCA 77. That was a decision concerning an appeal to the Supreme Court from the Consumer, Trader and Tenancy Tribunal. In his judgment in which Allsop P and Handley AJA agreed, Basten JA noted that the Tribunal had been joined as a party in the appeal to the Supreme Court in that case. His Honour observed that although it is appropriate and necessary “to join the decision-maker in proceedings seeking judicial review, it is neither necessary or appropriate to join the decision maker to an appeal, absent statutory provisions to the contrary.”

5. This is an appeal to the District Court from the Tribunal. The orders which I am empowered to make are set out in s 67(3) of the Consumer, Trader and Tenancy Tribunal Act 2001. At this stage it seems to me that I do not have power to grant any relief in the nature of prerogative relief of the kind referred to in s 65 of the Act. Ms Obieta argues that the remarks made by Basten JA were not essential to the determination of that appeal and are therefore obiter. Without deciding that, I find his Honour’s observations powerfully persuasive and I agree with them.

6. To my mind there is no place in this case for the Tribunal and if I am wrong it would make no meaningful contribution to the determination that I have to make in Ms Obieta’s appeal.

7. I, therefore, refuse the application for a stay.

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