When You’re Not in Kansas Anymore: Beware the Force of Jurisdictional Error

January 7, 2016

Dorothy from the Wizard of Oz with a Police Officer

We were successful several times last year, and again on Monday, having cases dismissed summarily on the first Court date. Ordinarily, it is more difficult to have a case determined early, and nowhere near as quick as the first Court date, plus there are several procedural steps to be taken. Think of a commercial or civil matter in the Local, District or Supreme Court – generally you will need to wait a month until a Defendant defaults in filing a defence, then file a Motion for default judgment and wait for the Court to decide that. Alternatively, you would need to file a Motion for summary judgment on the basis that the Defendant had no valid defence or the Plaintiff’s claim was without merit, and again wait until procedure ran its course. The examples will vary depending on which particular Court or Tribunal you might find yourself in, as will the procedural steps and timeframes. However, in the case of jurisdictional error by the Plaintiff or Applicant, an early dismissal can be obtained almost instantaneously in some circumstances.

By “jurisdiction”, generally we mean the ability of a given Court or Tribunal to hear, determine and make orders in relation to a specific type of case or disputes of a particular nature. Each Court or Tribunal has different jurisdiction. Sometimes, jurisdiction will vary simply depending on the amount of money involved in a civil claim, as is the case for general contract disputes and money claims with respect to the Local, District and Supreme Courts, for example. Another example is crime, where the seriousness of the offence determines whether it can be dealt with summarily in the Local Court, or whether it must be dealt with on indictment in the District Court, of even the Supreme Court. More relevantly for our purposes here, jurisdiction also varies depending on the type of claim or application being made. Quite simply, if the Court or Tribunal in which it is made does not have jurisdiction to either hear or determine the matter or make the orders sought, the case cannot be heard.

As most civil or commercial claims generally have costs implications, i.e. it usually follows that the loser pays the legal costs of the winner, making a jurisdictional error can carry serious financial consequences.

We see this happen most frequently in the Tribunals and quasi-judicial arenas, such as NCAT (the NSW Civil and Administrative Tribunal, which is the relatively new “super-tribunal” that engulfed the old CTTT, among others). We suspect this occurs because most people believe that these are “low-cost” or “no-cost” forms. As such, people tend to be more willing to lodge claims and to represent themselves. Often these people have no idea about the law or practice and procedure in the forum in which they lodge their application, and so have no way of knowing what to expect and whether or not they are on the right course. Sometimes, the websites for these forums can be confusing, and they almost never display all necessary information. That being so, someone may think that, for example, they are safe to lodge any old dispute in NCAT that is loosely related to consumer law, and it won’t be such a big deal if they lose, because there won’t be a costs order, so away they go. What they don’t know is that Tribunals such as NCAT draw their jurisdiction predominantly from enabling legislation – specific acts of Parliament that expressly grant them a right to hear and determine certain disputes. The situation can be contrasted from “normal” Courts, as those Courts mainly draw more general powers from the Acts that create them and from general common law (case law) (although even still, those Acts limit and qualify their jurisdiction). In addition, there may be other statutes that expressly prohibit a particular body such as NCAT from hearing a certain type of dispute or making a certain type of order, even though another Act expressly grants it power to hear a general umbrella of disputes that it sounds like the particular claim falls under. Irrespective of how innocent they are, the fact that they did not know what they were doing and were not represented, the consequences can be severe.

To make matters worse, a complete lay person who is confident enough to bring and run their own case usually has a fighting spirit. They may have also obtained some advice from someone you might expect to know the law, but with no actual legal training or qualifications, such as Tribunal registry staff, an accountant or a union delegate. The combination can be dangerous, as it may tend to encourage those people to ignore the other side or reasonable offers they make, or even to become bullish and aggressive with the other side. Throw into the mix a lack of knowledge about legal issues such as how to retain legal privilege over correspondence in the course of settlement discussions, and their exposure becomes increasingly high. A skillful lawyer will be looking to set you up to pay their client’s costs from day one, and even in the “low-cost” or “no-cost” jurisdictions, costs will be awarded where a claim has no tenable basis in fact or law, or where it is misconceived, lacking in substance, frivolous or vexatious. A case involving jurisdictional error constitutes such a case, as it should never have been brought and has wasted not only the time and money of the other party(ies), but also the time of the relevant Court or Tribunal.That being so, even in the “free” arenas where parties are supposed to be self-represented, one false move can see you wind up being dismissed with no right of reinstatement and a massive legal bill to boot.

In our case on Monday, the Applicant was quite aggressive and unreasonable. The application was filed in late December also, with a hearing date set in the first week of January, which may or may not have been a deliberate attempt to reduce available preparation time for the Respondent. However, we had made a reasonable offer during the break and put the Applicant on notice of exactly what we would do if the application was not withdrawn. Needless to say, that was ignored, and the Applicant responded only by asking for our consent to ridiculous orders that NCAT did not have jurisdiction to make, to make matters even worse. To start the year off, the Applicant found itself a very long way from home, like a fish out of water, with its case dismissed without a right of reinstatement in under half an hour. Several thousand dollars in costs are now more than likely to proceed to enforcement, absent agreement from the Applicant.

Ultimately, while lower level Courts and Tribunals can be a quick, effective and overall great means to obtain relief, and representing yourself can save you a lot of money, be sure you know what you’re doing before embarking on such a journey. At the very least, get some advice about jurisdiction and a road map set out about how you should run your case before proceeding – not from a friend or someone volunteering information without qualifications – from an experienced lawyer. If, after that, you are confident enough to represent yourself, then do so, but ensure you seek competent legal advice again if the goal posts change throughout the case.

As always, feel free to contact us about this or any related issues.

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