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ADT has no jurisdiction over TPA in NSW: Court of Appeal

ADT has no jurisdiction over TPA in NSW: Court of Appeal

Raj Lawyers has won a significant case for an unnamed landlord in New South Wales at the Court of Appeal. The landlord’s retail tenant had alleged misleading and deceptive conduct under the…

Raj Lawyers has won a significant case for an unnamed landlord in New South Wales at the Court of Appeal. The landlord’s retail tenant had alleged misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) (TPA). The matter originally started in the Retail Shop Leases Registry, went in front of a single member in the tribunal, and to appeal at the Administrative Decisions Tribunal.

Finally, the Court of Appeal heard the case as to whether the Administrative Decisions Tribunal had jurisdiction to hear the claims arising under the TPA.

The Court of Appeal in NSW (a bench consisting of their Honours Spigelman CJ, Hodgson J and Bryson JJA) held that the Administrative Decisions Tribunal was not a “Court of a State” for the purposes of section 86(2) of the TPA or for the purposes of Chapter III of the Commonwealth Constitution.

The Court also held that the Retail Leases Division could not be treated as a separate organisation within the Administrative Decisions Tribunal but rather that it is an integrated part, and that the relevant institution is the Tribunal.

The practical interpretation of the decision was that the Tribunal does not have jurisdiction to hear claims under the TPA, only under the Retail Shop Leases Act.

“We were always of the view that the Tribunal has no jurisdiction to hear trade practices matters because they are not judicial officers, and the Court of Appeal has now vindicated what we always said,” said Niren Raj of Raj Lawyers. “We have been arguing as much for the last six to seven years.”

Although the Retail Shop Leases Act does incorporate its version of section 52 and section 51 in the TPA, this was in a much more subjective way, said Raj.

Raj Lawyers were also supported by the Attorney-General’s department, which made its own submissions to the court.

The decision was reported in the Court of Appeal on 17th July. It remains to be seen if this decision will extend to whether Tribunals in the other States have jurisdiction to hear claims made by tenants under section 52 and section 51AC of the TPA.

“A lot of people would have read that decision and realised that a lot of landlords would have had that issue. And a lot of landlords would have thought, maybe we should have challenged it ourselves,” said Raj.

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