Christensen v General Motors Australia Pty Ltd
[2022] FedCFamC2G 706
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Christensen v General Motors Australia Pty Ltd [2022] FedCFamC2G 706
File number(s): ADG 65 of 2022 Judgment of: JUDGE BROWN Date of judgment: 26 August 2022 Catchwords: CONSUMER LAW – allegation of major defect – application for summary dismissal –res judicata – estoppel – consideration of abuse of process – issue previously adjudicated in state based court – application dismissed with costs Legislation: Competition & Consumer Act 2010 (Cth), sch 2, ss 27, 87B, 569, 260
Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 143, 143(3), 190, 214(2)
Federal Court Act 1976 (Cth) s 31A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, sch 2, rr 13.13, 22.09
Cases cited: Aon Risk Management Limited v Australian National University (2009) 239 CLR 175
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Rogers v Legal Services Commissioner of South Australia (1995) 64 SASR 572
Spencer v Commonwealth of Australia (2010) 241 CLR 118.
Tomlinson v Ramsey Food Processing Pty Ltd (2005) 256 CLR 507
Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46.
Webster v Lampard (1993) 177 CLR 598
Welsh v Digilin Pty Ltd [2008] FCAFC 149
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of hearing: 19 August 2022 Place: Adelaide Counsel for the Applicant: Appeared in person Counsel for the Respondent: Ms Granger Solicitor for the Respondent: Norton Rose Fulbright Australia ORDERS
ADG 65 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DARYL JAMES CHRISTENSEN
Applicant
AND: GENERAL MOTORS AUSTRALIA PTY LTD
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
26 AUGUST 2022
THE COURT ORDERS THAT:
1.The Application filed by the applicant on 23 March 2022 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN
INTRODUCTION:
On 22 June 2015, Daryl Christensen purchased a new Holden Cruze motor vehicle for $21,040.00 from a firm called City Holden. This case is concerned with whether Mr Christensen should be restrained from proceeding further or whether it would represent an abuse of process, if he able to continue with a consumer claim in respect of the vehicle, given he has unsuccessfully sued in another court in respect of what he asserts are major defects to it.
The vehicle was manufactured by GM Holden Ltd, which operates dealerships in Australia through a company known as General Motors Australia & New Zealand Pty Ltd. There is no controversy that these two entities are, to all intents and purposes, interchangeable. In the context of these proceedings, the relevant vehicle was purchased from General Motors Australia & New Zealand.[1]
[1] Hereinafter referred to as “the Respondent” or “GMH”, “General Motors” or “GM”.
The vehicle was subject to various guarantees and warranties offered both by GMH itself, as well as under provisions of the Australian Consumer Law.[2] The ACL is set out in Schedule 2 of the Competition & Consumer Act 2010 (Cth).[3]
[2] Hereinafter referred to as “the ACL”.
[3] Hereinafter referred to as “the CCA” or the Act”.
In early-January 2020, Mr Christensen was driving the vehicle when he noted its running had become sluggish and it felt to him like it was running on three cylinders. Given the vehicle had been purchased for less than 5 years, it was still subject to a warranty from GMH, as its manufacturers.
In addition, General Motors Australia are subject to the statutory guarantees contained in sections 259 and 260 of the ACL. These provisions provide as follows:
•If goods supplied to a consumer are subject to a major failure, rendering them substantially unfit for the purpose for which the good supplied and the relevant defect cannot be remedied within a reasonable time, the consumer concerned may take action to recover the price paid for the goods concerned;
•If the failure is not major the guarantee requires that the supplier remedy the defect.
Mr Christensen took the vehicle to a GMH service centre on 14 January 2020. It was identified to have issues to do with a damaged cylinder head, which it believed was reparable. Mr Christensen sought the full refund of the purchase price of the motor vehicle from General Motors or its replacement with a new vehicle.
However, General Motors conducted repairs to the vehicle. Its position was and remains that this fixed the fault. This was not satisfactory to Mr Christensen. He declined to collect the vehicle as requested. In these circumstances, the following correspondence passed between GMH and Mr Christensen on 13 February 2020:
We can confirm that GM Holden are unable to accede to your request for a replacement vehicle or full refund. The recent works completed by City Holden to install a new cylinder head on your Vehicle was found to be causing transmission erratic shift due to the misfire and is not deemed to be a major failure under the Australian Consumer Law (ACL).
City Holden has confirmed that despite road testing your Vehicle following the cylinder head replacement, there was no manufacturing defect found with the transmission operating as per design intent. If you believe otherwise, we respectfully request you to present the Vehicle to a Holden dealership and demonstrate the transmission fault to them.[4]
[4] See Annexure JCK-5 to affidavit of Jeremy Christopher Kinnear filed 6 June 2022.
Mr Christensen did not accept that this was the case. It remains his position that the vehicle was subject to a major defect. He declined to collect the vehicle. In these circumstances, in early-April 2020, General Motors arranged for the vehicle to be towed to Mr Christensen’s home in Paralowie.
In the past, the Australian Competition & Consumer Commission[5] investigated General Motors Holden in respect of consumer complaints made to it regarding its response to manufacturing faults in its vehicles.
[5] Hereinafter referred to as “the ACCC”.
As a consequence, on 3 August 2017, Holden made an undertaking to the ACCC to comply with consumer guarantees offered by it and under statute. The undertaking included the following:
1.Clarify its internal compliance training program so that multiple minor failures of a vehicle may constitute a major failure.
2.For new vehicles, Holden has also committed to offering consumers a refund or replacement without the need for them to demonstrate a major failure, if a defect prevents a vehicle from being driveable within 60 days of the date of purchase.
3.Engage an external reviewer to consider complaints since 1 January 2016, and provide a remedy to consumers where appropriate.
4.Amend its dealer policies and procedures to ensure they comply with the ACL in relation to consumer guarantees; and
5.Provide consumers with the ability to obtain information about any issues with their vehicle by contacting Holden and giving their vehicle identification number.[6]
[6] See affidavit of Jeremy Christopher Kinnear filed on 6 June 2022 at page 13.
It is also apparently Mr Christensen’s case that General Motors has breached this undertaking to the ACCC in respect of his case concerning the motor vehicle purchased by him. He is seeking to sue GMH in respect of what he asserts is its failure to abide by its undertaking to the ACCC.
In these circumstances, on 2 June 2020, Mr Christensen commenced proceedings against GMH in the civil jurisdiction of the Magistrates Court of South Australia at Adelaide seeking damages in an amount of $24,415.00. This sum represented the purchase price of the motor vehicle together with the costs of a car rental between 15 January 2020 and 2 June 2020.
In his self-prepared Statement of Claim, Mr Christensen claimed that the cracked head on the motor vehicle represented a major failure and therefore he was entitled to a full refund in respect of the car.
In addition, he asserted that GMH was in breach of the undertaking which it had provided to the ACCC pursuant to the provisions of section 87B of the Competition & Consumer Act. In particular, section 87 of the Act empowers the Commission to take action against any person whom it believes has breached the terms of any undertaking provided to it.
Mr Christensen’s application came on for hearing before Magistrate Fotheringham on 8 February 2022. Mr Christensen gave evidence and called Jan Kokot, who is a retired motor vehicle mechanic, to give expert evidence in the case.
General Motors called Mr Dunstan, who was the repair manager at City Holden. City Holden had earlier been involved in providing warranty repairs to the vehicle, prior to the controversy of January 2020 and Mr Kinnear, who is a technical officer at its Fisherman’s Bend plant.
Ultimately, Magistrate Fotheringham found as follows:
I consider that the Applicant is misconceived about his rights under the ACL. I find that there is no major failure. The Applicant has unfortunately, and in his belief, proceeded on the assumption that the cracked head is a major failure under the ACL. While I consider that if the cracked cylinder head was not repaired in a reasonable time, then the Respondent may have breached ss.54, 55 and 102 of the ACL, namely, because the Vehicle was in essence not fit for purpose thereby making the cracked cylinder head a major failure.
However, in accordance with its warranties and guarantees under the ACL, the Respondent, through City Holden, repaired the Vehicle free of charge and pursuant to the warranty.
This was supported by the evidence of Mr Dunstan that after repairs were done, the Vehicle was driving appropriately. Unfortunately, Mr Kokot did not drive the Vehicle after the repairs and no evidence could be given by him in this regard.
As such I find the Vehicle was of acceptable quality and fit for purpose after the repairs were performed. Accordingly, the Respondents have not breached ss.54, 55 or 102 of the ACL and/or their own warranty. Accordingly, s.260 of the ACL does not apply to this matter.[7]
[7] See affidavit of Jeremy Christopher Kinnear filed on 6 June 2022 at page 33.
Accordingly, Magistrate Fotheringham, after hearing evidence from each party and evidence from witnesses called by each of them, determined that GMH had discharged its obligations to Mr Christensen under the warranty relating to the vehicle purchased by him in repairing the relevant cylinder head. Thus Mr Christensen was not entitled to a full refund, for a major failure of the vehicle under the relevant provisions of ACL.
In these circumstances, the order of the Magistrates’ Court was the dismissal of Mr Christensen’s application and the award of costs in an amount of $400.00. This order has not been subject to either any form of appeal or review.
At an earlier stage of proceedings, on 23 November 2021, the portion of Mr Christensen’s claim relating to the allegation that General Motors had breached its undertaking pursuant to section 87B of the CCA was struck out, on the basis that he had no standing to bring the action.
Mr Christensen asserts that there is some species of fraud or dishonesty surrounding this aspect of the case and it has never been properly determined. He asserts that the relevant magistrate only stood that aspect of his case aside and it has not as yet been determined. In addition, it is his position that a representative of the ACCC told him to bring this aspect of the litigation because it was not going to do so.
THE CURRENT PROCEEDINGS
On 23 March 2022, Mr Christensen commenced proceedings against General Motors Australia Pty Ltd in this court in its general federal law jurisdiction, pursuant to section 87B of the CCA. He seeks the following final order:
G M Holden be held accountable for their actions in relation to this matter.
The grounds of the application are as follows:
1.G M Holden did not adhere to their agreed Court enforceable orders s.87B
2.G M Holden have made fraudulent claims in relation to this matter
3.G M Holden have misled all parties in relation to this matter
4.G M Holden have not formed to Australian Consumer Law
In support of this application, Mr Christensen has filed an affidavit. From this affidavit, it is clear that his claim relates to the motor vehicle, which he purchased on June 2015 and which suffered mechanical faults in January 2020.
He relies on various provisions of the ACL in respect of his claim asserting that General Motors Holden has engaged in unconscionable conduct and has breached warranties under the ACL as well as having breached the undertaking, which it provided pursuant to section 87B. In these circumstances, he seeks a full refund in respect of the relevant vehicle; hire car rental expenses; and storage costs incurred by him.
General Motors seeks the dismissal of the application. More significantly, in an application in a case filed on 6 June 2022, it seeks the summary dismissal of the application pursuant to the provisions of section 143(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)[8] and/or pursuant to rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).[9] General Motors also seeks that Mr Christensen pay its costs of this application.
[8] Hereinafter referred to as “the FCFCOA Act”.
[9] Hereinafter referred to as “the Rules”.
GMH’s position is supported by an affidavit of Jeremy Christopher Kinnear, who gave evidence in the Magistrates Court proceedings and is the Technical Customer Support Manager for the Respondent. He deposes as follows:
I note that the factual subject matter of the Magistrates Court Proceedings is identical to the subject matter of the present proceedings. In particular, the vehicle in question, being a Holden Cruze Equipe, Vehicle Identification number 6G1PD5EM5FL31133 purchased by the Applicant on or around 19 June 2015, is the same. The problem identified by the Applicant in relation to the vehicle in January 2020, in respect of which the Applicant sought a full refund, is the same. The Respondent's subsequent conduct, being to repair the vehicle without charge and providing the Applicant with a rental car for the period of repair, again without charge, but declining to provide the refund sought by the Applicant, is the same.[10]
[10] See affidavit of Jeremy Christopher Kinnear filed on 6 June 2022 at [5].
In essence, GMH assert that Mr Christensen is seeking to re-litigate the same controversy, which was adversely decided against him in the South Australian Magistrates’ Court and it would be oppressive and vexatious of it to have to defend the same application again in a different court.
In addition, GMH submit that if the court permitted such an outcome, it would represent an abuse of process, which would be calculated to bring the administration of justice into disrepute with the wider community.
Finally, GMH submit that, in fairness to it, Mr Christensen should be restrained from bringing the current application in this court, as he elected to bring the same case against it in the Magistrates’ Court and thus he is bound by this court’s adjudication in respect of the issues, which he himself raised and thus it is not open to him to seek an alternative adjudication in a different court in respect of the same matter. Lawyers refer to this principle as the doctrine of estoppel or res judicata. In common parlance, Mr Christensen is not entitled to have two bites of the same cherry.
THE LEGAL PRINCIPLES APPLICABLE
Section 143 of the FCFCOA Act grants the court a discretion to grant summary judgment (either allowing a defence or dismissing a claim without hearing evidence) if it is;
Satisfied that the other party has no reasonable prospects of successfully defending or prosecuting the proceedings concerned.
However, in this context, section 143(3) provides the admonition that a case need not be hopeless or bound to fail to have no reasonable prospects of success. Section 143 is in similar terms to section 31A of the Federal Court Act 1976 (Cth).
In this context, the court is conferred with a discretion, pursuant to rule 13.13 of the Rules to summarily dismiss an application if satisfied that the relevant proceedings have no reasonable prospects of success and significantly, so far as the current matter is concerned, the proceedings can be characterised as being frivolous or vexatious; or an abuse of process.
As with all discretions, the discretion provided by rule 13.13 must be exercised judicially and according to the dictates of justice. At a fundamental level, the court has an obligation to investigate and determine any claim for judicial relief, which has been honestly made in the proceedings before it, by the suitor concerned. The power to dismiss an application summarily has been frequently described as being one which is to be invoked sparingly even in cases which can be characterised as being inherently weak.
On the other hand, the court retains the authority to bring proceedings to an end prematurely if such proceedings would amount to an abuse of process or their prolongation would clearly inflict unnecessary injustice upon the opposite party.[11] These two considerations must be carefully balanced against one another in any application for summary dismissal bearing in mind the potentially significant implications for any party who will be the subject of such an order.
[11] Welsh v Digilin Pty Ltd [2008] FCAFC 149 at [32] (Tamberlin, Greenwood and Collier JJ).
The provision of section 143 of the FCFCOA Act is directed towards the expeditious disposal of unmeritorious proceedings and a concomitant saving of costs to the parties and court resources. However, laudable those aims are, the court must be careful to avoid becoming a slave to expediency.
Division 2 of the Federal Circuit and Family Court is a busy court of first instance. Part of its raison d’être is to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.[12]This is described, in the relevant legislation, as the overarching purpose of case management provisions.
[12] See Federal Circuit & Family Court of Australia of Australia Act 2021 (Cth) at section 190(1).
As was pointed out by French CJ in Aon Risk Management Limited v Australian National University (“Aon”)[13] courts have an obligation to ensure that the litigation coming before them is transacted effectively and efficiently, not only in the interests of the individual parties concerned but also in the interests of other litigants and users of the court, whose cases are inevitably affected by how other cases in the system are managed. His Honour said as follows:
…the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.[14]
[13] Aon Risk Management Limited v Australian National University (2009) 239 CLR 175.
[14] See Aon Risk Management Limited v Australian National University (2009) 239 CLR 175 at [23].
In the case, French CJ also noted that courts have the inherent authority to control their processes and prevent their application in a way which would be unfair to a party or would otherwise bring the administration of justice into disrepute among right-thinking people.[15]In this context it was noted that it was impossible to comprehensively list all possible categories of abuse. In this context, his Honour noted:
A broad merits-based judgment [is] required, taking account of public and private interests affected and focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it an issue which could and should have been raised earlier. As Lord Bingham said:
“As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”[16]
[15] See Aon Risk Management Limited v Australian National University (2009) 239 CLR 175 at [33].
[16] See Aon Risk Management Limited v Australian National University (2009) 239 CLR 175 at [34]; citing Johnson v Gore Wood & Co [2002] 2 AC 1 at 31 per Lord Bingham of Cornhill.
It is the positon of General Motors that it would not assist the application of the court’s overarching purpose of civil litigation in this court for Mr Christensen to be permitted to bring essentially the same action against it as he brought in the Magistrates’ Court and this would be vexatious to it and calculated to bring the overall administration of justice into disrepute.
In Spencer v Commonwealth of Australia,[17] French CJ and Gummow J said of section 31A of the Federal Court Act 1976 (Cth) that it:
[A]uthorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories.[18]
[17] Spencer v Commonwealth of Australia (2010) 241 CLR 118.
[18] See Spencer v Commonwealth of Australia (2010) 241 CLR 118, 131 [22] (French CJ and Gummow J).
In Webster v Lampard,[19] the High Court said as follows:
The power to order summary judgment must be exercised with exceptional caution … and should never be exercised unless it is clear that there is no real question to be tried.[20]
[19] Webster v Lampard (1993) 177 CLR 598.
[20] See Webster v Lampard (1993) 177 CLR 598, 602 (Mason CJ, Deane and Dawson JJ).
In Lindon v Commonwealth of Australia (No 2),[21] Kirby J provided a list of principles applicable to summary judgment:
•It is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
•The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
•That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
•If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
•Where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a Court will ordinarily allow that party to reframe the pleadings; and
•The “guiding principle” is doing what is just.
[21] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256 (Kirby J).
Kirby J said further in Lindon:
If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.[22]
[22] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256
Res Judicata is a Latin term which means a thing adjudged. In the recent case English case of Virgin Atlantic Airways v Zodiac Seats UK Ltd[23] Lord Sumpton described res judicata as a portmanteau term, which is used to describe a number of different legal principles with different judicial origins.[24]It has aspect of estoppel, in its various forms, but primarily relates to situations in which a court, of appropriate jurisdiction, is requested to adjudicate a legal controversy, which has the subject of an earlier determination in respect of the same subject matter or controversy, by a court conferred with the same or similar and jurisdiction.
[23] Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46.
[24] Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46 at [17].
In the case, Lord Sumpton outlined six principles relating to the principle of res judicata as follows:
·A party is prevented from bringing subsequent proceedings to challenge an outcome that has already been decided (cause of action estoppel);
·If a claimant succeeds in the first action and does not appeal the outcome he may not bring a subsequent action on the same cause of action, (i.e., to recover further damages);
·The doctrine of merger treats the cause of action as having been extinguished once judgment has been provided, and accordingly, the claimant’s only right is the judgment itself;
·A party may not bring subsequent proceedings on an issue that has already been determined (issue estoppel);
·A party may not bring subsequent proceedings which should and could have been dealt with in earlier proceedings;
·There is a general procedural rule against abusive proceedings.
In the case of Tomlinson v Ramsey Food Processing Pty Ltd[25] the High Court said as follows in respect of the concept of estoppel, including in the context of the earlier exercise of judicial power:
Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.
Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”. The third form of estoppel is now most often referred to as "Anshun estoppel”, although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument. (footnotes & citations omitted)[26]
[25] Tomlinson v Ramsey Food Processing Pty Ltd (2005) 256 CLR 507.
[26] See Tomlinson v Ramsey Food Processing Pty Ltd (2005) 256 CLR 507 at [21].
The principle of res judicata is posited on two fundamental premises:
·Firstly, it is in the public interest that there is in the public interest that there be an end to litigation and the finality and conclusiveness of a judicial decision is recognised; and
·Secondly, there is the private right of an individual to be protected from vexatious and oppressive suits arising out of the same circumstances.[27]
[27] See Rogers v Legal Services Commissioner of South Australia (1995) 64 SASR 572 per Lander J.
CONCLUSIONS
It appears to me to be incontrovertible that the subject matter of the proceedings brought by Mr Christensen, in this court, are identical to those brought by him in the Adelaide Magistrates’ Court. Clearly, they pertain to the same car and the same mechanical failure, which caused him to return the vehicle to GMH and claim a full refund.
The issue which Magistrate Fotheringham determined adversely to Mr Christensen was that the failure of the cylinder head had been repaired by GMH and therefore it could not be considered a major failure for the purposes of the ACL. Accordingly, in my view, in fully contested adversarial proceedings, Mr Christensen’s cause of action was dismissed. As a consequence his application is subject to the principle of res judicata and related issues of estoppel.
Mr Christensen wishes to raise the same issues which were determined by Magistrate Fotheringham in the earlier proceedings. There has been no appeal. It is in the public interest that there be an end to the relevant litigation and appropriate regard had to the learned magistrates’ decision, which was informed by the same evidence and witnesses whom Mr Christensen would seek to engage in the proceedings in this court. It is the same case. It is not in the interests of the administration of justice and the general public’s perception of it that Mr Christensen should be permitted to re-litigate the same issues with the same factual context in a different court after judgment has been earlier past.
Equally significantly, GMH should not be put to the expense and burden of having to defend the same case in a different jurisdiction. That would be oppressive and unfair to it. As such, Mr Christensen’s application represents a vexation to it and falls within the purview of rule 13.13 of the court’s rules.
Although Mr Christensen may disagree with the manner in which the learned magistrate determined the salient issues in the earlier case, in my view, he is estopped from being able to revisit the issues relating to the cylinder head and whether the crack to it was or was not reparable given that Magistrate Fotheringham determined that it was not a major failure and this finding represented the ultimate issue of fact to be determined in Mr Christensen’s application in the Magistrates’ Court of South Australia. He cannot re-agitate the same issue in a different court.
A significant aspect of Mr Christensen’s case is that the learned magistrate did not deal with his allegation that GMH had breached its undertaking to the ACCC. Whether this aspect of his case was struck out or stood aside is of no moment. It is clear from the reading of section 87B of the ACC Act that the only person with legal standing to bring such an action is the Commissioner. In these circumstances, I am satisfied that this aspect of Mr Christensen’s claim has no prospects of success and is amenable to summary dismissal for this reason.
For these reasons, I have come to the conclusion that Mr Christensen’s application should be summarily dismissed as an abuse of process.
COSTS
GMH seek costs pursuant to the provisions of section 214(2) of the FCFCOA Act, which reads as follows:
The Federal Circuit and Family Court of Australia (Division 2) or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
Pursuant to section 214(3) of the FCFCOA Act the award of costs is subject to the discretion of the court and any applicable provision in its rules.
Mr Christensen presents as a determined person, who is convinced that he has been the subject of a grave wrong by a large and powerful corporation. In my view, in the proceedings before me, GMH has acted with propriety and sought to minimise Mr Christensen’s exposure to costs in respect of an action it clearly felt had no merit whatsoever.
In this context, the application for summary judgment was fixed with the court administratively. More significantly, on 20 May 2022 its solicitor wrote a detailed letter to Mr Christensen foreshadowing the summary dismissal application and explaining its legal rationale in simple terms, which have been subsequently vindicated by this judgment.[28]
[28] See affidavit of Jeremy Christopher Kinnear filed 1 June 2022 at page 70.
In these circumstances, it invited Mr Christensen to consider withdrawing his application in consideration of which it would not seek any costs against him or seek to recover the earlier award of costs made against him in the Adelaide Magistrates’ Court. This offer was to no avail.
In these circumstances, I consider it proper that there should be an award of costs in the respondent’s favour. Rule 22.09 of the Rules provides a schedule of costs applicable to general federal law proceedings. The amount allowable for interim or summary hearing is $1,964.00 together with the daily hearing fee. A short mention attracts $321.00 a half day $1,178.00.
This was not a complicated matter. However, for understandable reasons, GMH went to some length to ensure that its position was fully delineated before the court. This involved the preparation of a relatively lengthy affidavit and more significantly comprehensive written submissions.
I acknowledge that Mr Christensen is not a wealthy person. But in my view it was patent that his case had been properly decided in the jurisdiction of his first preference. Thereafter, the respondent clearly explained to him the legal reasons why his current action was liable to be viewed as an abuse of process but this had no effect. In these circumstances, an award of costs is warranted which I assess in an amount of $1,500.00, which is significantly less than the scale.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 26 August 2022
0