Aussie Vic Plant Hire Pty Ltd v County Court of Victoria
[2008] VSC 245
•3 July 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6701 of 2007
| AUSSIE VIC PLANT HIRE PTY LTD (ACN 099 386 599) | First named Plaintiff |
| BRUNO STRANGIO | Second named Plaintiff |
| v | |
| COUNTY COURT OF VICTORIA | First named Defendant |
| WESTPAC BANKING CORPORTATION (ABN 33 007 457 141) | Second named Defendant |
No. 8784 of 2007
| BRUNO STRANGIO | Plaintiff |
| v | |
| COUNTY COURT OF VICTORIA | First named Defendant |
| WESTPAC BANKING CORPORTATION (ABN 33 007 457 141) | Second named Defendant |
No. 8546 of 2007
| AUSSIE VIC PLANT HIRE PTY LTD (ACN 099 386 599) | First named Plaintiff |
| BRUNO STRANGIO | Second named Plaintiff |
| v | |
| COUNTY COURT OF VICTORIA | First named Defendant |
| WESTPAC BANKING CORPORTATION (ABN 33 007 457 141) | Second named Defendant |
| ALLFREIGHT FINANCE BROKERS PTY LTD (ABN 36 104 864 520) | Third named Defendant |
| GEOFF IRWIN | Fourth named Defendant |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 December 2007, 15, 18, 20 February , 1-3 and 24 April 2008 | |
DATE OF JUDGMENT: | 3 July 2008 | |
CASE MAY BE CITED AS: | Aussie Vic Plant Hire Pty Ltd and Anor v CCV & Ors | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 245 | |
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ADMINISTRATIVE LAW – Judicial review – Certiorari – Denial of natural justice –Application for transfer of proceeding – Refusal of adjournment – Refusal of application to set aside judgment – Stay of proceeding – Review of appellable orders
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J Selimi | Starnet Legal Pty Ltd |
| For the First Defendant | No appearance | |
| For the Second Defendant | Mr C Nichol | Gadens Lawyers |
| For the Third Defendant | Ms C Harris | Moray & Agnew Solicitors |
| For the Fourth Defendant | Mr P Curtis |
TABLE OF CONTENTS
The applications................................................................................................................................. 1
Proceeding 8546............................................................................................................................ 1
Proceedings 6701 and 8784.......................................................................................................... 1
Material before the Court................................................................................................................. 2
Background......................................................................................................................................... 2
The debt action.............................................................................................................................. 3
The transfer of the debt action to the County Court................................................................ 3
The damages action...................................................................................................................... 3
The transferred damages action.................................................................................................. 4
Applications for transfer of the debt action to the Supreme Court....................................... 4
21 May 2007 orders in the debt action....................................................................................... 5
Proceeding 6701 relating to the 21 May 2007 debt action orders,......................................... 5
27 July 2007 orders in the damages action and the transferred damages action................. 6
10 August 2007 orders in the debt action.................................................................................. 6
The 15 August 2007 trial in the debt action............................................................................... 6
Supreme Court proceeding 8784 relating to the 10 August 2007 debt action orders......... 6
Proceeding 6701.................................................................................................................................. 7
Submissions................................................................................................................................... 7
Conclusions......................................................................................................................................... 8
Proceeding 8784.................................................................................................................................. 9
Conclusion......................................................................................................................................... 11
Proceeding 8546................................................................................................................................ 12
Right of appeal............................................................................................................................ 13
The damages action - application for orders setting aside the 23 April 2007 judgment. 14
Conclusion –refusal to set aside judgment in the damages action......................................... 15
The order striking out of the transferred damages action.................................................... 17
Conclusion – strike-out of the transferred damages action...................................................... 19
HER HONOUR:
The applications
There are three applications brought before the Court by originating motions numbered 6701, 8546 and 8784 of 2007, respectively. The plaintiffs in each seek relief in the nature of certiorari, quashing orders made in one or more related County Court Commercial List proceedings. For reasons which will become apparent, I will call County Court proceeding Cl-06-00335 “the damages action”, County Court proceeding Cl-06-02203 “the debt action” and County Court proceeding Cl-07-02529 “the transferred damages action”. Applications for other relief sought in the originating motions are not pursued.
Proceeding 8546
The application in proceeding 8546 in this Court was made by Aussie Vic Plant Hire Pty Ltd (“Aussie Vic”) and Bruno Strangio (“Mr Strangio”), challenging orders made by Judge Anderson on 27 July 2007 in the damages action and in the transferred damages action. Proceeding 8546 was heard first, because it involved Westpac Banking Corporation (“Westpac”) as well as the two additional defendants, Allfreight Finance Brokers Pty Ltd (“Allfreight”) and Geoff Irwin (“Mr Irwin”).
Just before Mr Selimi of counsel for the plaintiffs was to make submissions in reply, a winding up order was made by the Court in relation to Aussie Vic. From then on, Mr Selimi appeared only for Mr Strangio and the proceeding was otherwise adjourned for mention on 30 April 2008, with a view to the Court being informed as to whether the newly appointed liquidator would seek to take any further step on behalf of Aussie Vic. The liquidator subsequently declined to do so.
Proceedings 6701 and 8784
The plaintiffs in proceedings 6701 and 8784 seek the quashing of orders in the debt action. Proceeding 6701 was brought by Aussie Vic and Mr Strangio as plaintiffs, so it continued as between Mr Strangio and Westpac and was otherwise adjourned for mention on 30 April 2008, again to allow sufficient time for the liquidator of Aussie Vic to consider whether to seek to take any further step on behalf of the company. As Mr Strangio was the only plaintiff in proceeding 8487, the winding up order had no effect.
I will first deal with the applications in proceeding 6701 which challenge orders made on 21 May 207 by Judge Holt in the debt action, then those in proceeding 8784 which attack orders subsequently made by the same judge in the debt action on 10 August 2007. I will then move on to consider the applications in proceeding 8546 relating to Judge Anderson’s 27 July 2007 orders in the damages action and the transferred damages action.
Material before the Court
Mr Kimani Boden of the plaintiffs’ solicitors, swore an affidavit in support of each application. He variously referred to and exhibited orders and other documents from the files in each of the County Court proceedings. Affidavits from other parties also exhibited parts of the County Court records. It is common ground that the evidence in each application should be treated as evidence in each of the others to the extent that it has been relied upon in that way.
Background
The County Court proceedings relate to Aussie Vic’s purchase of a backhoe loader and Westpac’s financing of the transaction. It is common ground that the Court should treat the facts alleged as providing a context for the purposes of the judicial review applications.
Aussie Vic had purchased a Komatsu excavator from Mr Irwin in September 2004. It later bought a backhoe loader, financed by a loan of some $75,526 from Westpac which was guaranteed by Mr Strangio (“the backhoe loan”). Allfreight was the finance broker assisting Aussie Vic with the finance application. Both the excavator and the backhoe were the subject of a chattel mortgage executed by Aussie Vic at about the time of the backhoe loan. The excavator was seized by Westpac and ended up in the possession of Mr Irwin.
I will now turn to the history of the litigation.
The debt action
On 13 September 2005, Westpac commenced the debt action in the Magistrates’ Court seeking payment of some $79,000 from Aussie Vic under the agreement for the backhoe loan and approximately $73,000 from Mr Strangio, as a guarantor.
The transfer of the debt action to the County Court
On 7 June 2006, the debt action was transferred to the County Court on Westpac’s application. It then acquired the County Court Commercial List number Cl-06-02203.
The damages action
In the meantime, on 2 February 2006, Aussie Vic had commenced the damages action in the County Court against Westpac. The damages action then acquired the County Court number Cl-06-00335.
On 11 October 2006, Allfreight and Mr Irwin were added as defendants to the damages action by leave. In the damages action, Aussie Vic sought damages to the jurisdictional limit of $200,000 for Westpac’s alleged conversion of the excavator, Allfreight’s alleged wrongful inclusion of the excavator in documentation as security for the backhoe loan and Mr Irwin’s failure to inform Aussie Vic that the excavator was subject to an encumbrance in favour of CBFC Limited. Aussie Vic sought some $33,000 as the replacement cost of the excavator and an additional $836 per day as consequential loss of revenue from 3 August 2005.
On 20 February 2007, Judge Davis ordered that, subject to compliance with other orders, the damages action be heard together with the debt action.
On 30 March 2007, however, Judge Anderson struck out Aussie Vic’s statement of claim in the damages action and ordered, amongst other things, that Aussie Vic apply for leave to file another statement of claim, and file an affidavit of documents relating to alleged loss and damage and an affidavit setting out material facts relied upon to calculate loss and damage, all by 13 April 2007. Judge Anderson set out the consequences of non-compliance in paragraph 3 of the orders:
3.Any application for leave to file further amended statement of claim is to be heard by Her Honour Judge Davis in the week commencing 16 April 2007 at a date and time to be nominated by Her Honour. Unless the Plaintiff makes and pursues such an application its claim will be dismissed and there be Judgement for the Defendants with costs including any reserved costs to be taxed on “Scale D”.
On 23 April 2007, on the return of Aussie Vic’s application by a 13 April 2007 summons to file and serve a further statement of claim in the damages action, Judge Holt entered judgment for the defendants “pursuant to paragraph 3 of the order of Judge Anderson made on 30 March 2007”. The order was made after Mr Selimi for Aussie Vic had stated his belief that none of the defendants objected to the County Court having the jurisdiction to hear the claim to the extent that it exceeded the jurisdictional limit, the defendants had indicated that they did not agree to an increase in the jurisdiction and Mr Selimi had withdrawn Aussie Vic’s application for leave to file a further amended statement of claim.
The transferred damages action
On 8 May 2007, some 15 days after judgment was ordered to be entered for the defendants in the damages action and despite the unlimited jurisdiction acquired by the County Court from 1 January 2007, Aussie Vic issued a proceeding in the Supreme Court, which, counsel for Mr Strangio and Aussie Vic concedes, essentially seeks the same relief as that sought in the damages action against the same defendants.
I have described this action as “the transferred damages action” because Osborn J subsequently transferred it to the County Court on 15 June 2007 on the application of Westpac. It then received the County Court Commercial List number Cl-07-02529.
Applications for transfer of the debt action to the Supreme Court
On 15 and 21 May 2007, respectively, Aussie Vic and Mr Strangio would seem to have made further applications for the transfer of the debt action. Exhibit “KAB 9” to Mr Boden’s affidavit sworn on 26 November 2007 in proceeding 6701 is a copy of an application made by Aussie Vic and Mr Strangio dated 15 May 2007 under Part 5 of the Courts (Case Transfer) Act 1991 for an administrative transfer of the debt action. Exhibit “KAB 13” to the same affidavit, however, is a copy of a 27 July 2007 notice of a determination by Judge Davis under s 17 of the same legislation. That determination on its face would appear to have related to a different application - that is, one for an “Individual Transfer” under Part 3. The application in this Court has proceeded on the basis that there had been one application under Part 5, rejected by the County Court, followed by another under Part 3 and made before 21 May 2007.
21 May 2007 orders in the debt action
On 21 May 2007, the date fixed for trial in the debt action in the County Court, the first defendant, Mr Strangio, appeared in person before Judge Holt. There was no appearance for Aussie Vic, the second defendant. It is common ground that Starnet Legal were the solicitors on the County Court record for both defendants.
Judge Holt vacated the 21 May trial date and refixed the debt action for trial on 8 August 2007. Mr Strangio was ordered to pay certain of Westpac’s costs calculated on a solicitor and client basis, within 14 days of agreement or failing agreement, as taxed. His Honour also ordered that Mr Strangio’s defence be struck out if he failed to comply with the costs orders and that there should be judgment for Westpac for its claim.
Proceeding 6701 relating to the 21 May 2007 debt action orders,
On 14 June 2007, Aussie Vic and Mr Strangio commenced proceeding 6701 in this Court, seeking the quashing of Judge Holt’s 21 May 2007 orders in the debt action, as well as orders in the nature of other prerogative relief.
The costs the subject of Judge Holt’s 21 May 2007 order in the debt proceeding were taxed and, when they were not paid by Mr Strangio, Westpac applied for orders striking out his defence. The trial in the debt action did not proceed on 8 August 2007 and appears to have been re-fixed for 15 August 2007.
27 July 2007 orders in the damages action and the transferred damages action
Judge Anderson dealt with an application in each of the damages action and the transferred damages action on 27 July 2007.
In the damages action, Aussie Vic had applied for an order setting aside Judge Holt’s 23 April 2007 judgment. Judge Anderson dismissed the application and ordered Aussie Vic to pay the defendants’ costs.
In the transferred damages action, Westpac had applied for an order that the proceeding be permanently stayed under r 23.01(1)(c) of the County Court Rules of Procedure in Civil Proceedings 1999. Judge Anderson ordered that the proceeding be struck out and ordered Aussie Vic to pay Westpac’s costs.
10 August 2007 orders in the debt action
10 August 2007 was, however, the return date for the hearing of Westpac’s strike out application in the debt action. On that day, Judge Holt made orders striking out Mr Strangio’s defence, ordering him to pay the amount of $73,190.20 to Westpac, as well as its costs of the proceeding on a solicitor and client basis.
The 15 August 2007 trial in the debt action
On 15 August 2007, the trial of the debt action as between Westpac and Aussie Vic took place before Judge Anderson. Westpac was successful and Aussie Vic has appealed the decision.
Supreme Court proceeding 8784 relating to the 10 August 2007 debt action orders
On 9 October 2007, Mr Strangio commenced proceeding 8784 in the Court challenging Judge Holt’s 10 August 2007 orders in the debt action.
Having set out the relevant chronology of the steps in the proceedings in the various courts, I will now turn to deal with the proceedings before me in turn.
Proceeding 6701
Submissions
Counsel for Mr Strangio submits that the Court should quash Judge Holt’s 21 May 2007 orders in the debt action on the grounds that his Honour lacked any jurisdiction to take any step in the proceeding after an application for its transfer to the Supreme Court had been made.
Counsel for Mr Strangio argues that, in light of the stated purpose in s 1(a) of the Courts (Case Transfer) Act 1991 of establishing “a new system for the transfer of civil proceedings between courts in order to improve efficiency in the administration of civil justice in Victoria” and of the terms of s 17(8), an application for the transfer of a proceeding operates to stay the subject proceeding, even though the legislation does not include any express provision to that effect.
Counsel for Mr Strangio concedes that he knows of no authority to support his submission that the making of an application for transfer operated to stay the proceeding.[1]
[1]T 520 at lines 21-30.
He also argues that his client was denied natural justice by Judge Holt on 21 May 2007. He bases this submission upon the assertion that the unrepresented Mr Strangio asked for an adjournment to obtain legal representation in circumstances in which the trial had not been mentioned in the County Court list for hearings that day. He concedes, however, that there is no evidence before the Court of either fact. He relies solely upon the court record of Judge Holt’s orders which shows that Mr Strangio was unrepresented.[2]
[2]T 520 line30 – T 522 line 15.
Counsel for Westpac responds that any application made before 21 May 2007 under the case transfer legislation was doomed and, in any event, would not have had the effect of staying the proceeding. He argues that s 17(8) itself contemplates further steps being taken in the proceeding under s 17, notwithstanding the making of the transfer application. He submits that it would be farcical if a proceeding could be stayed simply by the filing of an application for transfer.
Counsel for Westpac cites 635 St Kilda Road Pty Ltd v H. Troon Pty Ltd and Magistrates Court,[3] as the only relevant decision he has been able to find. In that case, the applicant for judicial relief challenged a refusal by a magistrate to adjourn a proceeding in which an application for transfer to the County Court had been made at a late stage. Counsel submits that Ashley J did not mention any such stay resulting from the transfer application when considering the reasonableness of the refusal of the adjournment.
[3][2001] VSC 473.
As far as the submissions relating to the absence of the matter from the list and any request for adjournment on Mr Strangio’s part are concerned, counsel for Westpac argues that Mr Strangio has failed to discharge his onus of proof in relation to the assertions about listing and any adjournment request to obtain representation.
Conclusions
I am not persuaded by the argument that the making of a transfer application or the filing or giving of the requisite notice of intention to do so would operate to stay the proceeding. There is no express provision to that effect in the Courts (Case Transfer) Act 1991, nor does the stated purpose relied upon or the content of s 17(8) warrant such a conclusion. Indeed, it would be remarkable if a party could gain the benefit of a stay at any stage in a proceeding by taking such a unilateral step. Further, as counsel for Westpac points out, such an effect of a transfer application would appear to have been relevant to the Court’s decision in 635 St Kilda Road and would have been likely to have been taken into account, had it existed.
As far as the alleged denial of natural justice is concerned, Mr Strangio has simply failed to adduce any evidence to support his assertions. He has not made out his case.
The application should be dismissed.
Proceeding 8784
Counsel for Mr Strangio submits that Judge Holt’s 10 August 2007 orders in the debt action should be quashed on the basis that Mr Strangio was denied natural justice, as an unrepresented person, when the judge refused to adjourn the further hearing of Westpac’s strike-out application to 15 August 2007, the trial date fixed in the debt action as against Aussie Vic.
Mr Strangio does not pursue the other challenges set out in the originating motion made on the basis of “jurisdictional error of law” and “non-jurisdictional error of law on the fact of the record” by the entry of a “perverse and manifestly unreasonable” judgment.
The only evidence as to events on 10 August 2007 is that contained in Mr Boden’s affidavit sworn in support of the application on 26 November 2007. It is a short affidavit which exhibits the originating motion and the impugned orders and continues as follows in the final two of its five paragraphs :
4.I am informed and verily believe that the Plaintiff appeared on his own behalf without legal representation on 10 August 2007. Mr Strangio requested a short adjournment of the proceeding until at least 15 August 2007, the date on which the trial between Aussie Vic Plant Hire Pty Ltd and Westpac was listed.
5.I am informed that the Plaintiff submitted that it would be unjust to deprive him of the right to defend the guarantee, particularly where the Court had not yet heard the trial and the defendant had not proven that Aussie Vic Plant Hire Pty Ltd was liable to it. Without Westpac proving this, the Plaintiff in this matter could not be said to be liable pursuant to the guarantee.
It was common ground that the Court should interpret the affidavit to the effect that Mr Strangio was the source of the information upon which Mr Boden based his stated beliefs.
Counsel for Mr Strangio relies generally upon a court’s undeniable duty to assist an unrepresented party.[4] He submits that an unrepresented person, likely to be adversely affected by orders about to be made, should be given an opportunity to deal with the orders.
[4]Citing Tomasevic v Travalglini & Anor [2007] VSC 337.
Counsel for Westpac responds that Mr Strangio has failed to prove that he was denied natural justice. He points out that Mr Strangio has failed to swear any affidavit himself as to what occurred at the hearing on 10 August 2007. Counsel notes the absence of any material to explain why Mr Strangio attended the court unrepresented on that day. He also notes that Mr Boden’s affidavit fails to refer to the content of any submissions Mr Strangio might have made or to describe any of the material before the court. (I note in this regard that Judge Holt does refer in “Other Matters” to three affidavits.)
Counsel for Westpac contends that, even if the Court concludes that Mr Strangio sought an adjournment on 10 August, there is no evidence as to why he did so. There is no reference to him wanting to seek legal representation. There is no mention of submissions or evidence relating to any potential defence to the claim under the guarantee, such as reliance upon terms making liability conditional upon the establishment of the principal debtor’s liability by legal action or otherwise.
Counsel for Westpac submits that, in any event, the Court should, save in exceptional circumstances, refuse to exercise its discretionary powers in an application for judicial review when there is an available right of appeal, He relies upon the Court of Appeal’s decision in Kuek v Victoria Legal Aid,[5] and Mandie J’s decision in Victorian WorkCover Authority v Judge Punshon,[6] applying the principle in Kuek to an interlocutory order of the County Court. Counsel contends that Mr Strangio has failed to establish the existence of any exceptional circumstances justifying the exercise of discretionary grant of relief by way of judicial review.
[5][2001] 3 VR 289 at 293 per Phillips JA.
[6][2005] VSC 361.
Counsel for Mr Strangio seeks to distinguish Kuek on the basis that it related to a right to appeal from a final order as opposed to a right to appeal subject to leave in the case of an order of an interlocutory character. He characterises Judge Holt’s 10 August orders as interlocutory because they were capable of being set aside under r 24.06 of the County Court Rules of Procedure in Civil Proceedings 1991.
Counsel for Westpac responds that Victorian WorkCover Authority v Judge Punshon concerned an interlocutory order in the County Court. He says that, in any event, s 73 of the County Court Act 1958 provides that any judgment or order in a matter by a County Court judge shall be final and conclusive between the parties. He relies upon Kirby P’s rejection of a similar argument and characterisation of an order liable to be set aside as final, for the purposes of the law of res judicata, in Linprint Pty Ltd v Hexham Textiles Pty Ltd.[7]
[7](1991) 23 NSWLR 508 at 518.
Counsel for Westpac also argues that Mr Strangio’s behaviour in delaying the judicial review process itself provides additional reason why the Court should refuse to grant relief in the exercise of its discretion. He refers to the adjournments sought and obtained by Mr Strangio in this Court. Counsel reminds the Court that, on 15 February 2008, after initially having declared that he appeared on his own behalf unrepresented and having been informed that the defendants did not object to him also appearing on behalf of Aussie Vic in proceedings 6701 and 8546, Mr Strangio had sought time to consult accountants and had declared himself too ill to continue.
Conclusion
I am not persuaded that Mr Strangio has demonstrated any denial of natural justice to him on the return of Westpac’s application in the debt action before Judge Holt on 10 August 2007. He has not filed an affidavit deposing to the truth of what it is accepted he told Mr Boden about events on that day. Significantly, he has not stated directly or through Mr Boden that he was not assisted by his Honour or that he sought an adjournment in order to obtain representation. He has not sought to explain why he was unrepresented in the County Court. There is no material demonstrating that he either had any defence to Westpac’s claim under the guarantee or put submissions to the judge to that effect (such material might, for example, have gone to the issue as to whether his liability might have been in some way contingent upon an adjudication as to Aussie Vic’s liability as principal debtor). Mr Strangio has not satisfied his burden of proof of denial of natural justice in the application.
It is not necessary for me to consider whether to grant discretionary relief in relation to an order of the type made, given my conclusion that Mr Strangio has not established any denial of natural justice.
The application should be refused.
Proceeding 8546
Aussie Vic and Mr Strangio both seek the quashing of the orders made by Judge Anderson on 27 July 2007 in the damages action and the transferred damages action. (Although Mr Strangio was not a party to either proceeding in the County Court, no objection was taken to his standing to seek judicial review of the decisions in his capacity as a director of Aussie Vic.)[8]
[8]See T 468 line 26 – T 469 line 12.
As I have recorded,[9] Judge Anderson dismissed Aussie Vic’s application for an order setting aside Judge Holt’s 23 April 2007 judgment in the damages action and ordered Aussie Vic to pay the defendants’ costs. In the transferred damages action, Judge Anderson granted Westpac’s application under r 23.01(c), ordering that the transferred damages action be struck out and ordered that Aussie Vic pay Westpac’s costs.
[9]At [25] and [26] above.
Counsel for Aussie Vic and Mr Strangio contends that Judge Anderson made errors of law apparent on the face of the record as well as jurisdictional errors by failing to take into account what he described as the “inconsistent positions” taken by the defendants in the two proceedings before him. He argues that, since Westpac and Allfreight had taken the point that the sum claimed in the damages action exceeded the County Court’s jurisdiction, Aussie Vic had consented to the entry of judgment against it by Judge Holt. Westpac had then, alleged inconsistently, relied upon that judgment to defeat the transferred damages action commenced in this Court. The alleged inconsistency should have been taken into account by Judge Anderson as a consideration relevant to the issue of what result would advance the interests of justice in the circumstances, in each case.
Right of appeal
The respondents characterise the challenges to the exercise of the court’s discretion in relation to each application as allegations of error of law on the face of the record. As a consequence, they first argue that relief by way of judicial review should be declined in the absence of any evidence establishing the requisite exceptional circumstances justifying that relief where there is an available avenue of appeal.
I am persuaded that the Court should refuse relief in the exercise of its discretion, as s 74 of the County Court Act 1958 provided Aussie Vic with an avenue of appeal from Judge Anderson’s decisions in relation to any alleged errors of law.[10]
[10]See: Kuek v Victoria Legal Aid (2001) 3 VR 289 at 292 per Phillips JA; Victorian WorkCover Authority v Punshon [2005] VSC 361 [35]-[37] per Mandie J.
In both actions, Aussie Vic and Mr Strangio allege that a relevant consideration was not taken into account in the exercise of the court’s discretion and in the transferred damages action their challenge also appears to be one based on errors of law. The challenge based on the learned judge’s alleged failure to take a relevant consideration into account could have been mounted in an appeal relating to the exercise of discretion under the principle in Australian Coal and Shale Employees’ Federation v Commonwealth.[11] The other alleged errors also appear to have been appropriate matters to have been canvassed in an appeal. Aussie Vic and Mr Strangio have not established any exceptional circumstances which would justify them bringing judicial review proceedings.
[11](1953) 94 CLR 621 at 627 per Kitto J.
The relief sought should be refused.
I note, nevertheless, that in Kuek, Phillips JA held that a claim for jurisdictional error might well be a different case from one involving error of law.[12]
[12](2001) 3 VR 289 at 293.
In any event, I will now consider whether the judge did err as alleged, in case I am wrong in concluding that relief by way of judicial review should be declined because Aussie Vic had a right of appeal in each action in relation to what have been characterised as alleged errors of law. [13]
[13]See discussion in Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed., Thomson 2004) at 716-7.
The damages action - application for orders setting aside the 23 April 2007 judgment
Counsel for Mr Strangio and Aussie Vic argues that Judge Anderson made a jurisdictional error of the type described in Craig v South Australia,[14] by failing to address what counsel describes as the critical and primary consideration of the requirements of the interests of justice in the exercise of his discretion in what was an interlocutory application. He cites Ridge Lane Pty Ltd v Gadzhis,[15] in support of his argument about the significance of the interests of justice as a factor to be taken into account in the exercise of the court’s discretion relating to the setting aside of what was, in that case, a self-executing order.
[14](1994-5) 184 CLR 163 at 177-8 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
[15][2007] VSC 212.
It appears that, as part of the alleged failure to take proper account of the interests of justice in all the circumstances, Aussie Vic and Mr Strangio include what counsel argues is the inconsistent approach of the defendants to each proceeding. The defendants refused to agree to the County Court having jurisdiction in relation to a claim for an amount exceeding its jurisdiction, resulting, in counsel’s submission, to Aussie Vic’s withdrawal of its application for leave to file another statement of claim and failure to resist the entry of judgment against it. Counsel for Aussie Vic and Mr Strangio argues that it was then “inconsistent” for those same defendants to seek to have the transferred damages action stayed on the basis of the principles of res judicata.
Counsel for Allfreight’s submissions in response are adopted by the other two defendants in this application. The respondents deny that Judge Anderson erred in the exercise of his discretion. They argue, in the alternative, that the judge was acting within jurisdiction, exercising a very wide power under r 24.06 which was not limited by its terms. They note that r 24.06 does not identify any particular considerations to be taken into account.
The respondents concede that in any such application, the court must consider the interests of justice and note that Judge Anderson referred to Ridge Lane when noting Aussie Vic’s submissions that there had been a substantial and bona fide attempt to comply with his Honour’s 30 March 2007 orders. They argue that the judge clearly did appropriately consider the interests of justice and the balance of prejudice to each party; he did not misconstrue his power, nor did he disregard any statutory or other pre‑condition to its exercise.
They also submit that Aussie Vic, in effect, consented to Judge Holt entering judgment on 23 April 2007 , making the situation quite different from one in which orders are made by default or in the absence of a party.
Conclusion –refusal to set aside judgment in the damages action
I am persuaded by the defendants’ argument that the learned judge both acted within jurisdiction and made no error of law in the damages action.
In his reasons, Judge Anderson recorded the interlocutory history of the various actions. With regard to the damages action, he noted that 30 March 2007 was the first date upon which the proceeding had come before him and that he had made a “full examination” of the statement of claim and the alleged factual basis for it. His Honour recorded that he had considered the articulation of the quantum of the claim (at $836 per day from loss of use of equipment worth about $33,000) to be implausible, without explanation, and had made orders for the plaintiff to seek leave to file an amended statement of claim and to provide particulars. Aussie Vic had subsequently made that leave application and it had been returnable before Judge Holt on 23 April 2007.
Judge Anderson noted that Aussie Vic claimed $437,184.83 up to 13 April 2007 in the damages action and that the County Court had not gained unlimited jurisdiction until 1 January 2007. Judge Anderson also summarised the submissions of counsel which adverted to the Ridge Lane decision.
His Honour recorded that Aussie Vic had failed to file any material suggesting that it had a viable claim against the proposed defendants in the damages action, nor any explaining its failure to comply with the 30 March 2007 orders requiring it to do so. His Honour stated that no satisfactory explanation had been given for Aussie Vic’s decision to withdraw its application for leave to file and serve a further amended statement of claim.
As for the claim itself, his Honour noted that the claim made against the finance broker and Westpac depended upon findings that Aussie Vic should not be bound by loan documentation which it had executed. The claim against the other defendant to the damages action, CBFC, depended again upon Aussie Vic establishing that the company did not have a prior claim to the excavator seized by Westpac. The alternative claim against Mr Irwin depended upon CBFC having a prior interest in the excavator when Aussie Vic purchased it from him. The learned judge pointed out that there was no material filed by Aussie Vic to suggest that it might have a viable claim against any of the defendants.
Judge Anderson referred to the other options available to Aussie Vic when it was represented before Judge Holt on 23 April 2007. It could have abandoned the excess of its claim above the jurisdictional limit, it might have sought an adjournment in order to apply to have the proceeding transferred to the Supreme Court and it could have discontinued the action. In all the circumstances, the learned judge concluded that there did not seem to be any good reason why Aussie Vic should not be held to the course it had elected to take. It had failed to demonstrate any basis for setting aside the judgment.
I agree with counsel for the defendants that it is clear from the reasons that the learned judge took proper account of the interests of justice in reaching the decision to refuse the application. He referred in some detail to the interlocutory history and the absence of any evidence justifying the claims. To the extent that the matter is in issue, I am satisfied that it is implicit in Judge Anderson’s reasons that he has adverted to the statement of relevant principles by Hargrave J in Ridge Lane and that it is apparent that his Honour concluded that there had been insufficient attempts to comply with his 30 March 2007 orders. Further, I am not persuaded that the learned judge erred by failing to take into account the alleged “inconsistency” in the defendants’ approaches. As I have already said, his Honour referred in some detail to the interlocutory history between the parties. He summarised the competing submissions which included reference to counsel for Aussie Vic’s submissions to the effect that his client would be prejudiced by being unable to put its claim. His Honour stated at para 12 of his reasons that he reached his conclusions in light of the submissions.
I am not persuaded that the learned judge erred in any of the ways in which an inferior court can make a jurisdictional error described by Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig.[16]
[16] (1994-5) 184 CLR 163 at 177-8.
Nor, for the same reasons, do I consider that the learned judge erred in the exercise of his discretion in the way described by Kitto J in Australian Coal and Shale Employees Federation by failing to take account of the interests of justice (including the alleged “inconsistent” behaviour of the respondents).
The order striking out of the transferred damages action
As far as the orders in the transferred damages action are concerned, counsel for Aussie Vic and Mr Strangio argues essentially that Judge Anderson erred in holding that the doctrine of res judicata applied in relation to the entry of judgment in the damages action when there had been no final judgment on the merits. This led, he contends, to a jurisdictional error by staying the action on the basis of a “misconception as to the principles of res judicata”, and a misconstruction of s 73 of the County Court Act 1958.
Judge Anderson relied upon the New South Wales Court of Appeal’s decision in Linprint Textiles Pty Ltd v Hexham Textiles Pty Ltd,[17] to the effect that s 73 County Court Act 1958 operated to render a judgment conclusive between the parties so that a fresh claim might be met by successful pleas of res judicata or issue estoppel. In the circumstances, his Honour held that the transferred damages action should be struck out as an abuse of process.
[17](1991) 23 NSWLR 508.
Counsel for Aussie Vic and Mr Strangio challenges the correctness of the decision in Linprint, arguing that the doctrine of res judicata does not apply in a situation in which there has been no hearing on the merits. He, in turn, cites the Federal Court’s decision in Thirteenth Corp Pty Ltd v State,[18] in which Jessup J stated that the principle did not apply where a proceeding had been discontinued or dismissed for non-compliance with orders for discovery or the provision of particulars or for want of prosecution.[19] Counsel contends that the factual sub-stratum in Thirteenth Corp was identical to that before Judge Anderson.
[18][2006] FCA 979.
[19][2006] FCA 979 at [33].
Counsel for Allfreight distinguishes Thirteenth Corp on the basis that the court in Linprint applied s 73 of the County Court Act 1958, whereas there was no equivalent legislative provision considered by Jessup J. Counsel for Allfreight also notes that both Kirby P and Clarke JA in Linprint held that s 73 operated to make the judgment final, notwithstanding the absence of a decision on the merits and the possibility that the judgment was liable to be set aside under r 24.21 of the County Court Rules 1979 as they then stood.[20]
Conclusion – strike-out of the transferred damages action
[20](1991) 23 NSWLR508 at 518-20 per Kirby P; 526 per Clarke JA.
I am not persuaded that Judge Anderson erred by concluding both that the principles of res judicata applied and that there was an abuse of process by Aussie Vic in attempting to re-litigate its claim in the transferred action. I am persuaded by the arguments put on behalf of the respondents in support of the decision in the County Court.
Jessup J in Thirteenth Corp left open the possibility that the bringing of fresh proceedings might be considered vexatious and an abuse of process, although this would not necessarily be the case when a party had allowed proceedings to be terminated by his or her own default and commenced a new action on closely related grounds.[21] Judge Anderson took into account the absence of any explanation for Aussie Vic’s failure to comply with his 30 March 2007 orders, as well as the absence of any material setting out the basis for the damages claim and went on to reach his conclusion that Aussie Vic had engaged in an abuse of process justifying the orders made.
[21][2006] FCA 979 at [33]-[35].
I am not dissuaded from my view as to the finality of the judgment entered against Mr Strangio by reference to the Full Court’s 1932 decision in Smith v Morrow,[22] in so far as it might be said to have dealt with the question whether an order dismissing a claim for failure to give particulars had the effect of barring a fresh action. As counsel for Allfreight points out, in Smith there was no consideration of a provision like s 73. I agree with Judge Anderson that the decisions in Linprint and Smith are not necessarily inconsistent.
[22][1932] VLR 491.
The applications should be refused.
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