CHAW v Jenkinson

[2016] FCCA 2916

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAW v JENKINSON [2016] FCCA 2916

Catchwords:
CONSUMER LAW – Claim of misleading conduct – whether the claim is re-agitating previous claims – whether bringing the claim is an abuse of process – no reasonable prospect of success – proceedings dismissed.

Legislation:

Corporations Act 2001 (Cth).

Federal Circuit Court Rules 2001, r.13.10.

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: CHI CHAW

Respondent: KAREN LEIGH JENKINSON

File Number: SYG 2222 of 2016

Judgment of: Judge Street

Hearing date: 11 November 2016

Date of Last Submission: 11 November 2016

Delivered at: Sydney

Delivered on: 11 November 2016

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent: Mr M Klooster

Solicitors for the Respondent: Zander Dre Lawyers

ORDERS

1. The application is dismissed under r.13.10 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the Respondent’s costs fixed in the amount of $4,507.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2222 of 2016

CHI CHAW

Applicant

And

KAREN LEIGH JENKINSON

Respondent

REASONS FOR JUDGMENT

1. This is an application by the respondent in a case for relief under r.13.10 of the Federal Circuit Court Rules 2001 in respect of an application filed by the applicant on 17 August 2016. The applicant filed an amended application on 26 September 2016. That application identified the following grounds:-

   1. federal court case [2015] FCA 25 about coverall cleaning franchise .

   federal court case [2015] FCA 257 about coverall cleaning franchise .

   2. gave misleading refund during medication.

   3. associate, for a franchisor, means a person:

   (a) who:

   (i) is a director or related body corporate, or a director of a related body corporate, of the franchisor; or

   (b) whose relationship with the franchisor is relevant to the franchise system, including because:

   (i) the person supplies goods or services to a franchisee; or

   (ii) the person gives the franchisee a right to occupy premises, whether under a lease or otherwise; or

   (iii) the person owns intellectual property used in the franchise system; or

   (iv) the person is involved in market research, market testing, market development, sales promotion or management of the franchise system.

   (Errors in original)

2. Insofar as the applicant wished to bring a claim of misleading conduct against the director of a company now in liquidation, Coverall Services Pty Ltd, that is a claim that the applicant has already pursued unsuccessfully before the New South Wales Civil and Administrative Tribunal (“NCAT”). The applicant is not entitled to bring another claim on the same grounds before this Court in respect of the same alleged misleading conduct. To do so is an obvious abuse of process.

3. It appears that the applicant had a cleaning business franchise which failed to achieve the level of business he expected. The applicant obtained in the Consumer Trader & Tenancy Tribunal a judgment against the franchisor, Coverall NSW Pty Ltd, for $20,000. That company then went into liquidation in May 2013. Thereafter the applicant has attempted to pursue the director on the basis of alleged misleading conduct. That application was initially brought in the NSW Local Court, which dismissed the proceedings on 11 October 2013.

4. An application was then brought before the NCAT and the decision of Senior Member Buckley of 26 June 2014 was overruled by the Appeal Panel on 2 July 2015. The matter went back for further hearing on the merits before Tribunal Member Cohen, who adversely determined the matter to the applicant on 1 February 2016. The applicant sought a review of that decision, which the NCAT Appeal Panel dismissed on 27 July 2016.

5. It is clearly vexatious for the applicant to seek to re-agitate the same claim that the applicant has lost before the NCAT in this Court in respect of alleged misleading conduct by the respondent. Neither the application or affidavit evidence filed by the applicant identify any proper basis upon which it could be said that there was misleading conduct by the respondent.

6. Insofar as the application is one in which the applicant seeks to bring some claim under the Corporations Act 2001 (Cth), the applicant has obtained no consent from the liquidator. The proceedings, on their face, are an abuse of process.

7. The application under r.13.10 of the Federal Circuit Court Rules 2001 was listed for hearing today. At the commencement of the hearing, the Court explained to the applicant that it was determining whether or not the application brought by the applicant was an abuse of process and that the Court intended to identify the evidence and then hear submissions in that regard. The applicant confirmed that he understood the nature of the hearing. The applicant was assisted by an interpreter provided by the Court.

8. From the bar table, the applicant maintained that someone had to pay him back. The applicant’s approach in relation to the losses he has suffered appears to be one where the applicant is determined to pursue proceedings against the respondent despite the fact that he has no proper claim to do so.

9. The applicant is not entitled to bring proceedings before this Court that are vexatious and have no reasonable prospect of success. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I am satisfied that the application brought by the applicant has no reasonable prospect of success in this Court.

10. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.13.10 of the Federal Circuit Court Rules 2001

11. The proceedings are dismissed under r.13.10 of the Federal Circuit Court Rules 2001.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 29 November 2016