Chaw v Jenkinson

Case [2017] FCA 1292

FEDERAL COURT OF AUSTRALIA

Chaw v Jenkinson [2017] FCA 1292

Appeal from: Application for leave to appeal: Chaw v Jenkinson [2016] FCCA 2916
File number(s): NSD 2024 of 2016
Judge(s): PERRY J
Date of judgment: 6 November 2017
Catchwords: CONSUMER LAW –Application for leave to appeal decision of Federal Circuit Court summarily dismissing application on grounds of abuse of process and no reasonable prospects of success – no appellable error identified – application for leave to appeal dismissed
Legislation:

Competition and Consumer Act 2010 (Cth) Schedule 2, ss 18, 236

Corporations Act 2001 (Cth)

Federal Court of Australia Act 1976 (Cth) s 24

Trade Practices Act 1974 (Cth)

Federal Circuit Court Rules 2001 (Cth) r 13.10

Uniform Civil Procedure Rule 2005 (NSW) r 13.4

Cases cited:

Applicant S1494/2003 v Minister for Immigration and Citizenship [2008] FCA 286; (2008) 166 FCR 474

Jamal v Secretary, Department of Social Services [2017] FCA 916

Chaw v Jenkinson [2016] FCCA 2916

Chaw v Jenkinson and Coverall Services Pty Ltd [2016] NSWCATAP 174

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

House v R (1936) 55 CLR 499

Jenkinson v Chaw [2015] NSWCATAP 127

Nyoni v Chee Koon Hee (No 2) [2014] FCA 83

Rawson Finances Pty Ltd v Commissioner of Taxation [2010] FCAFC 139

Spencer v Commonwealth (2010) 241 CLR 118
Date of hearing: 15 March 2017
Date of last submissions: 26 April 2017
Registry: New South Wales
Division: General Division
National Practice Area: Corporations and Commercial Law
Sub-area: Regulator and Consumer Protection
Category: Catchwords
Number of paragraphs: 24
Counsel for the Applicant: The applicant appeared in person.
Counsel for the Respondent: Mr M Klooster
Solicitor for the Respondent: Zander Dre Lawyers

ORDERS

NSD 2024 of 2016
BETWEEN:

CHI CHAW

Applicant
AND:

KAREN LEIGH JENKINSON

Respondent

JUDGE:

PERRY J

DATE OF ORDER:

6 NOVEMBER 2017

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed.

2.The applicant is to pay the respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

PERRY J:

1.               INTRODUCTION

  1. The Applicant, Mr Chi Chaw, seeks leave to appeal a decision of the Federal Circuit of Australia (the Court below) summarily dismissing his application for relief under rule 13.10 of the Federal Circuit Court Rules 2001 (FCC Rules) on the grounds that it was an abuse of process and had no reasonable prospects of success: Chaw v Jenkinson [2016] FCCA 2916. The respondent, Karen Leigh Jenkinson, opposes the grant of leave.

  2. The parties filed written submissions.  The applicant also relied upon his affidavit dated 24 November 2016 in support of his application while the respondent relied upon the affidavit of Aktuna Oguz, solicitor, affirmed on 19 April 2017.  By consent, the application for leave to appeal was determined on the papers.  Having considered all of the material, leave to appeal must be refused with costs for the reasons explained below.

    2.               RELEVANT…

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AGLC
Chaw v Jenkinson [2017] FCA 1292
Case
[2017] FCA 1292
Decision Date

CaseChat Overview and Summary

In the case of Chaw v Jenkinson, the applicant, Mr Chaw, sought leave to appeal a decision of the Federal Circuit Court which had summarily dismissed his application against Ms Jenkinson. The application was grounded on allegations of abuse of process and a lack of reasonable prospects of success. The Federal Circuit Court had previously dismissed Mr Chaw's claims against Ms Jenkinson on the basis that they constituted an abuse of process and failed to disclose a reasonable cause of action. The court found that Mr Chaw's claims were vexatious as they represented an attempt to re-agitate a claim he had already unsuccessfully pursued before the New South Wales Civil and Administrative Tribunal (NCAT). The court also noted that Mr Chaw had not provided any evidence to substantiate his claims of misleading conduct against Ms Jenkinson.

The legal issues before the court included whether the application constituted an abuse of process and whether it disclosed a reasonable cause of action. The court held that the application was indeed an abuse of process as Mr Chaw had already unsuccessfully pursued the same claim before the NCAT. The court further found that there was no reasonable cause of action because Mr Chaw had not presented any evidence to support his allegations of misleading conduct against Ms Jenkinson. The court emphasised that it was not open to Mr Chaw to bring the same claim in the Federal Circuit Court after it had been dismissed by the NCAT. Additionally, the court noted that Mr Chaw had not obtained consent from the liquidator, which was necessary for any claim under the Corporations Act 2001 (Cth).

The court dismissed Mr Chaw's application for leave to appeal, holding that there was no appellable error in the decision of the Federal Circuit Court. The court found that Mr Chaw had not identified any error in the primary judge's conclusion that his claim was an abuse of process and lacked reasonable prospects of success. The court further held that the appeal did not disclose any arguable error that would warrant leave to appeal. Consequently, the application for leave to appeal was dismissed, and Mr Chaw was ordered to pay Ms Jenkinson's costs as agreed or assessed.

Orders

Orders of the court

1. The application for leave to appeal is dismissed.

2. The applicant is to pay the respondent’s costs as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Chaw’s appeal against Member Cohen’s decision was dismissed on 27 July 2016 by the Appeal Panel: Chaw v Jenkinson and Coverall Services Pty Ltd [2016] NSWCATAP 174. The Appeal Panel found that the Tribunal erred in concluding that Mr Chaw’s claim was stayed as a result of the liquidation of Coverall NSW and that his claim against Ms Jenkinson had ceased to exist because it had merged in the judgment against Coverall NSW. Nonetheless, the Appeal Panel dismissed the appeal, finding that: 16. However, these areas do not alter the outcome of the appeal. This is because Mr Chaw has not been able to point to any error in the first ground for rejecting his claim in the Tribunal below, namely, that Mr Chaw had not presented any evidence establishing that the Respondents were involved in any contravention by Coverall NSW within the meaning of s 236 of the ACL.3.4 The decision of the Federal Circuit Court On 17 August 2016, Mr Chaw filed the application against Ms Jenkinson in the Court below. That application was dismissed on 11 November 2016. The primary judge held that the proceedings constituted an abuse of process and failed to disclose a reasonable cause of action. Specifically, the primary judge held that: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.

Ratio Decidendi

Legal Principle Established

Ms Jenkinson successfully appealed that decision and the Appeal Panel remitted the matter: Jenkinson v Chaw [2015] NSWCATAP 127. Ms Jenkinson was successful on the rehearing and the application was dismissed (No. GEN 13/64141). In dismissing the application on the remittal on 1 February 2016, Member Cohen characterised the applicant’s claim relevantly as either:(1)a cause of action brought against Ms Jenkinson as a former director of Coverall NSW arising by reason of Coverall NSW going into liquidation (the Corporations Act Claim); and/or(2)a contravention of s 236 of the ACL in that the respondent was knowingly involved in Coverall NSW’s contravention (the ACL Claim). Member Cohen found that the Tribunal lacked jurisdiction to determine the Corporations Act Claim. With respect to the ACL Claim, the Member relevantly found that it was clear from Ms Jenkinson’s unchallenged evidence that she had no dealings with Mr Chaw at any time, and knew nothing of the facts and circumstances by which Mr Chaw dealt with an officer of Coverall NSW and came to an agreement to purchase the franchise. Mr Chaw’s appeal against Member Cohen’s decision was dismissed on 27 July 2016 by the Appeal Panel: Chaw v Jenkinson and Coverall Services Pty Ltd [2016] NSWCATAP 174. The Appeal Panel found that the Tribunal erred in concluding that Mr Chaw’s claim was stayed as a result of the liquidation of Coverall NSW and that his claim against Ms Jenkinson had ceased to exist because it had merged in the judgment against Coverall NSW. Nonetheless, the Appeal Panel dismissed the appeal, finding that: 16. However, these areas do not alter the outcome of the appeal. This is because Mr Chaw has not been able to point to any error in the first ground for rejecting his claim in the Tribunal below, namely, that Mr Chaw had not presented any evidence establishing that the Respondents were involved in any contravention by Coverall NSW within the meaning of s 236 of the ACL.3.4 The decision of the Federal Circuit Court On 17 August 2016, Mr Chaw filed the application against Ms Jenkinson in the Court below. That application was dismissed on 11 November 2016. The primary judge held that the proceedings constituted an abuse of process and failed to disclose a reasonable cause of action. Specifically, the primary judge held that: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.