The Court held that the maintenance of individual proceedings by group members who have not opted out of a related Federal Court representative proceeding does not necessarily constitute an abuse of process warranting a permanent stay; the vice of duplication may be managed by pleading amendments or other case management measures rather than the drastic remedy of a permanent stay. However, the Court struck out the plaintiffs' statement of claim on the basis that it fundamentally altered the character of the proceeding as transferred from the NTCAT — shifting from statutory compensation under s 122 of the Residential Tenancies Act to common law damages and Australian Consumer Law claims — and that the question of how the proceeding should be configured was more appropriately determined by the Federal Court following cross-vesting transfer. The Court ordered transfer to the Federal Court under s 5(1)(b) of the Jurisdiction of Courts (Cross-Vesting) Act, finding it was both more appropriate and in the interests of justice given the overlapping issues with the representative proceeding, the risk of conflicting determinations, and the need for efficient use of judicial resources.
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