De Luca v De Luca
[2024] VSC 541
•5 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 05036
| FABIO DE LUCA | Applicant |
| v | |
| MARIA DE LUCA | Respondent |
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JUDGE: | Goulden AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 June 2024 |
DATE OF JUDGMENT: | 5 September 2024 |
CASE MAY BE CITED AS: | De Luca v De Luca |
MEDIUM NEUTRAL CITATION: | [2024] VSC 541 |
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PRACTICE AND PROCEDURE — Application for leave to appeal against decision of Victorian Civil and Administrative Tribunal —Respondent sought dismissal of the appeal proceeding pursuant to r 4.08(8) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018— Application also made by respondent for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) —Respondent sought costs on an indemnity basis —Applicant to pay respondent’s costs on a standard basis.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | |
| For the Respondent | Mr M Biviano of Counsel | Keuris Legal |
TABLE OF CONTENTS
Background to the Appeal................................................................................................................ 1
VCAT proceedings........................................................................................................................ 1
The Summary Determination Application................................................................................... 4
Grounds on which Summary Determination is Sought............................................................ 5
Dismissal pursuant to r 4.08(8) of the MCP Rules.................................................................... 6
Dismissal pursuant to ss 62, 63 and 64 of the CPA and r 22.16 and 22.22 of the GCP Rules 10
Other grounds of dismissal....................................................................................................... 12
Disposition........................................................................................................................................ 12
HER HONOUR:
In this proceeding, the applicant seeks leave to appeal two decisions of the Victorian Civil and Administrative Tribunal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998. Under that provision, a party may appeal on a question of law only and leave to appeal is required.
By her summons dated 3 April 2024, the respondent seeks summary determination of the appeal proceeding. I heard the respondent’s application on 25 June 2024. The applicant, who is self-represented, did not appear at the hearing.
Background to the Appeal
The applicant appeals against two VCAT decisions:
(a) the orders of Member Curie in VCAT proceeding R2022/31320 made on 19 May 2023 ( ‘May 2023 Decision’);[1] and
(b) the orders of Member Curie in VCAT proceeding R2023/26574 made on 3 October 2023 (‘October 2023 Decision’).[2]
[1]Order of Member Curie in De Luca v De Luca (VCAT, Reference No. R2022/31320/04, 19 May 2023). A copy of the May 2023 Decision is exhibited to the affidavit of Roderick Keuris sworn 11 December 2023, Exhibit RK-1, 22–4 (‘First Keuris Affidavit’).
[2]Order of Member Curie in De Luca v De Luca (VCAT, Reference No. R2023/26574/00, 3 October 2023). A copy of the October 2023 Decision is exhibited to the First Keuris Affidavit, Exhibit RK-1, 36.
The original notice of appeal was filed on 23 October 2023, which, in respect of the May 2023 Decision, was outside the 28 day period for the filing of an application for leave to appeal provided by r 4.04 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (‘MCP Rules’). Accordingly, the applicant also requires an extension of time to appeal against the May 2023 Decision.
VCAT proceedings
The applicant alleges that he entered into a residential tenancy agreement with his late father on 10 September 2018, permitting him to let the premises in Doncaster, being the respondent’s family home.
In November 2021, the applicant no longer resided at the premises and could not go there because of an intervention order obtained by the respondent against him. The respondent is the applicant’s mother.
On 12 November 2021, the applicant filed proceedings in the VCAT seeking access to his goods, personal documentation and personal effects located at the premises and compensation in the amount of $19,200 (‘2021 Proceeding’).[3] The application filed states that the ‘total value’ of the claim is $19,200 and that:
[t]he renter wants VCAT to order that the bond be paid back to the renter and for the rental provider to pay further compensation for loss because the rental provider has not complied with a duty or obligation.[4]
[3]De Luca v De Luca (VCAT, Reference No. R2021/34007, commenced 12 November 2021) (‘2021 Proceeding’).
[4]Exhibit RK-1 to the First Keuris Affidavit, 1–5. The application does not assert that the applicant had been evicted. It also does not specify what ‘duty or obligation’ had not been complied with.
For reasons which will become apparent later in this judgment, it is relevant that there is no claim of unlawful eviction referred to in the application in the 2021 Proceeding.
The 2021 Proceeding was not heard due to COVID-19 restrictions.
On 8 November 2022, the applicant filed a further application with the VCAT seeking injunctive relief to stop his goods being removed from the premises (‘2022 Proceeding’).[5] This application was dismissed due to the non-attendance of the applicant at the hearing on 16 December 2022. However, because technical difficulties precluded the applicant’s appearance, the proceeding was re-opened and joined with the 2021 Proceeding by order made after a hearing conducted before the VCAT on 1 March 2023.[6]
[5]De Luca v De Luca (VCAT, Reference No. R2022/31320, commenced 8 November 2022) (‘2022 Proceeding’).
[6]Order of Member Curie, 2022 Proceeding, 1 March 2023. The order is exhibited to the First Keuris Affidavit, Exhibit RK-1, 20–1.
VCAT conducted a joint hearing of the 2021 Proceeding and the 2022 Proceeding on 19 May 2023, resulting in the May 2023 Decision. The May 2023 Decision included orders:
(a) dismissing the applicant’s claim for $19,200 in compensation;[7]
(b) granting a mandatory injunction requiring safe storage of the applicant’s goods at the premises until 9 September 2023,[8] by which date the goods were to be picked up by the applicant.[9]
For reasons which will become apparent later in this judgment, it is relevant that VCAT made no finding in the May 2023 Decision that the applicant had been unlawfully evicted from the premises.
[7]The claim for compensation in the 2021 Proceeding. May 2023 Decision, [11]-[15].
[8]An error was made in the date originally included in Order [7] in the May 2023 Decision. That date was subsequently corrected under the slip rule: Order of Member Curie, 2022 Proceeding, 14 June 2023. The correcting order is exhibited to the First Keuris Affidavit, Exhibit RK-1, 25.
[9]The injunction sought in the 2022 Proceeding. By Order [9] in the May 2023 Decision, the injunction applied to the 2021 Proceeding.
Shortly prior to the expiry of the injunction, the applicant filed a new application with the VCAT on 1 September 2023, under s 395 of the Residential Tenancies Act 1997, seeking to extend the injunction awarded in the May 2023 Decision, specifically the date by which he had to collect his goods from the premises (‘2023 Proceeding’).[10] The application states:
I am asking for an extension to remove my goods because I have not been copeing (sic) with my epilepsy and I will be admitted to hospital in early September for about 4 – 6 weeks… I need more time to find an affordable storage location for my goods to be taken to.
…
I please ask for more time. please (sic) member help me as I will be going into hospital soon.[11]
Again for reasons which will become apparent later in this judgment, it is relevant that the applicant did not allege any breach of the injunction, or contempt of the VCAT’s orders, by the respondent.
[10]De Luca v De Luca (VCAT Reference No. R2023/26574, commenced 1 September 2023) (‘2023 Proceeding’).
[11]Exhibit RK-1 to the First Keuris Affidavit, 26–35.
At the conclusion of the hearing of the 2023 Proceeding on 3 October 2023, the VCAT made the 3 October 2023 Decision, dismissing the application to extend the injunction. The applicant exhibited a transcript of this hearing to his affidavit filed on 27 March 2024.[12]
[12]Transcript of Proceedings, Fabio De Luca v Maria De Luca (Victorian Civil and Administrative Tribunal, R2023/26574, Member R. Curie, 3 October 2023) (‘October 2023 Transcript’).The transcript is exhibited to the Affidavit of Fabio De Luca sworn 27 March 2024, Exhibit H, 27 (‘Applicant’s Affidavit’).
The Summary Determination Application
The respondent first sought dismissal of this appeal proceeding at the first directions hearing on 13 December 2023, which was attended by both parties. At that hearing Ierodiaconou AsJ noted that the respondent’s dismissal application was not properly made, and so did not allow it. Her Honour recorded that:
the notice of appeal as filed is deficient and does not articulate questions of law. The application for leave to appeal has not been filed within the time permitted by the Rules. The applicant has not filed an affidavit in support under r 4.07 of the [MCP] Rules and has not provided transcript of the relevant hearings before VCAT. It is appropriate in the circumstances to allow the applicant time to obtain legal advice and, if so advised, to amend the notice of appeal and to file an affidavit compliant with the Rules.[13]
Consequently, her Honour ordered that the applicant have leave to file an amended notice of appeal by 22 January, and that he also file an affidavit in compliance with r 4.07 of the MCP Rules by that date. Her Honour ordered that the affidavit exhibit the VCAT hearing transcripts upon which the applicant intended to rely and address the reasons for which an extension of time for bringing the appeal should be granted.
[13]Orders of Ierodiaconou AsJ, 13 December 2023, Recital H in Other Matters.
The applicant did not comply with the orders made on 13 December 2023. On 14 February 2024, Keith JR again ordered that the applicant file an amended notice of appeal, and an affidavit as required by the 13 December orders, on or before 27 March 2024.
On 27 March 2024, the applicant filed an amended notice of appeal, which appears identical in all matters of substance to the original. There are no discernible amendments beyond the heading and the date. The applicant also filed an affidavit, purportedly in compliance with r 4.07 of the MCP Rules, but failed to exhibit the VCAT orders and only exhibited one hearing transcript, being the October 2023 Transcript.[14] In terms of the reasons for his delay, the applicant deposes to his ill-health, but he does not explain how his ill-health caused him to be unable to file the appeal or why an extension of time should be granted, and there was no medical evidence exhibited to any affidavit in support of his asserted ill-health.[15]
[14]Exhibit H to the Applicant’s Affidavit.
[15]Applicant’s Affidavit, 1–4.
The respondent’s application for summary determination of this appeal was made by summons dated 28 March 2024 – but filed on 3 April 2024 – and is supported by several affidavits filed on behalf of the respondent; namely, two affidavits of Mr Roderick Keuris[16] and two affidavits of Mr Kyle Keuris.[17] The respondent relies on written submissions dated 6 May 2024.
[16]Being the First Keuris Affidavit sworn on 11 December 2023, and a further affidavit sworn on 28 March 2023.
[17]Each sworn on 13 February 2024.
The applicant did not file any further affidavit material, nor any written submissions in advance of the hearing of this application, despite being directed to do so by 11 June 2024.
The applicant did not appear at the hearing of the respondent’s application before me on 25 June 2024. Being satisfied that he had been served with the application, and had notice of the hearing date (having been present before the Court at each directions hearing conducted after the appeal proceeding was filed, including the directions hearing at which the application was listed), I determined that the hearing of the respondent’s summons would proceed in the absence of the applicant in accordance with r 46.08 of the Supreme Court (General Civil Procedure) Rules2015 (‘GCP Rules’).
Grounds on which Summary Determination is Sought
The respondent seeks that:
(a) the appeal be dismissed pursuant to r 4.08(8) of the MCP Rules by reason that:
(i) the notice of appeal does not identify sufficiently, or at all, a proper question of law on which the appeal may be brought;
(ii) the applicant does not have an arguable case on the appeal and the refusal of leave would not impose a substantial injustice; and
(iii) the appeal in the circumstances is frivolous, vexatious or otherwise an abuse of process of the Court,
(b) judgment be given in favour of the respondent in accordance with ss 62 and 63 of the Civil Procedure Act 2010 (‘CPA’) and rr 22.16 and 22.22 of the GCP Rules;
(c) judgment be given in favour of the respondent, or the proceeding be stayed, under r 23.01 of the GCP Rules on the ground that the appeal is an abuse of process; and
(d) the appeal be dismissed in the Court’s inherent jurisdiction by reason of the applicant’s failure to comply with the Court’s orders made on 13 December 2023 and 14 January 2024.
Dismissal pursuant to r 4.08(8) of the MCP Rules
The respondent asserts that the appeal proceeding ought be dismissed under any or all of the grounds in r 4.08(8) of the MCP Rules, as set out above.
The amended notice of appeal purports to identify two separate questions of law upon which the applicant proposes to appeal. The first relates to the May 2023 Decision and is expressed as being:
Should the member have not considered that the claim for compensation was validly as a result of unlawful eviction?
Particulars of that question are provided as follows:
a/ no notice to vacate issued.
b/no possession order sought.
c/access to the premises were denied and locks changed.
d/ I had to seek temporary accommodation, immediately with notice.
Therefore, I should be able to seek compensation for loss of rent due to unlawful eviction, damage to goods caused by rental providers (sic) illegal actions.
Some amplification of the first question can be found under the heading ‘[t]he grounds relied upon are’ in the amended notice of appeal. The grounds state ‘[f]ailing to lawfully evict, I am entitled to compensation, be it rent paid in advance, bond, and the stress in having to find a suitable place to live, pay a bond and rent.’ This ground is also addressed in the applicant’s affidavit, where the applicant deposes as follows:
On the 19th of May, VCAT heard both applications in the 2021 and 2022 proceedings and conceded that there was a valid lease but stated that they were not sure how I came to the compensation amount and that as the lease was nearing completion, that money pre-paid was something I could not get back. Its (sic) not entirely about the money but more about how I was locked out and illegally evicted and the Member at the time did not see this as relevant or important to pursue but it is and has a causal significance to even the injunction breach claim I am making. Member Curie made an order that my compensation claim be dismissed and that the (sic) I plan and arrange to collect my goods by or before 9/9/23.[18]
[18]Applicant’s Affidavit, [7].
Interpreting the drafting of the first question benevolently – namely its particulars and the stated grounds – it appears that the applicant is asserting that the VCAT fell into error by failing to consider whether he was entitled to compensation as a result of his unlawful eviction. However, it is difficult to see how this question arises from the VCAT’s decision, predicated as it is on the asserted finding by the VCAT that the applicant was unlawfully evicted. There is no finding to that effect by the VCAT in any part of the record of those proceedings that is before the Court, and there is no record of such a case having been advanced before the VCAT by the applicant.
The applicant’s failure to exhibit the transcripts of the hearings on 1 March 2023 and 19 May 2023 to his affidavit, despite having been ordered to do so on 13 December 2023, does not assist his case. The applicant deposes in this proceeding that he sought the sum of $19,200 in the 2021 Proceeding as compensation for pre-paid rent for his unlawful eviction.[19] However, the circumstances of the applicant no longer living at the premises are not addressed anywhere in his applications to the VCAT in either the 2021 Proceeding or the 2022 Proceeding. Nor are those circumstances raised in the hearing transcript that is available,[20] nor is there any discussion or findings in relation to those circumstances in either the May 2023 Decision or the October 2023 Decision. It follows that there could be no arguable question of law that arises from any consideration following or relating to a finding of unlawful eviction, as that issue was not entertained by the VCAT, and no such finding was made by it.
[19]Applicant’s Affidavit, [3].
[20]In the October 2023 Transcript, the applicant asserts ‘[i]f I would have been given a lawful eviction which I was not…’ but he does not elaborate at all on how he came to leave the premises.
The VCAT’s findings in relation to the applicant’s claim for compensation appear beneath the heading ‘Claim for Compensation’ in the May 2023 Decision. Those findings record that the applicant had made submissions at the hearing on 1 March 2023 about the return of the sum of $19,200. The May 2023 Decision records that at the 19 May hearing, the applicant made different submissions, claiming he paid this sum ‘to his late father and former rental provider as safe keeping for him in the event something untoward was to occur between him and his mother’ in which event ‘he would be entitled to a refund of the [p]ayment, whether in full or otherwise.’[21]
[21]Exhibit RK-1 to the First Keuris Affidavit, 23 [11].
Absent the hearing transcript, there is no record of the substance of the submissions actually made by the applicant at either of the 1 March or 19 May hearings. In particular, there is no record that the applicant raised any issue concerning the alleged unlawful eviction or any other expenses or losses – such as those described generally in the amended notice of appeal – with the VCAT that it failed to consider.
The respondent submits – and evidence is also given to this effect in the First Keuris Affidavit[22] – that the VCAT refused to award compensation because the member found the $19,200 rent pre-payment had never been made by the applicant. That is not apparent to me from the findings made in support of the May 2023 Decision. However, I do not believe much turns on it, as the VCAT findings concern the character of the payment as it was intended to be made (irrespective of whether it was made or not). The VCAT held that it was not a payment for safe keeping in the event of anything ‘untoward happening between him and his mother’ and to which it was intended the applicant could lay claim as compensation, as he sought to argue. Rather, the VCAT held that the sum claimed was intended as pre-payment of rent consistently with the express terms of the rental agreement and therefore the application for payment of this amount as compensation on the basis asserted by the applicant was ‘misconceived and doomed to fail’.[23] The VCAT findings regarding the compensation claim as recorded in the May 2023 Decision serve to confirm that there is no arguable question of law that arises from any consideration of the claim for compensation following or relating to a finding of unlawful eviction, as that was not how the compensation claim was put by the applicant.
[22]First Keuris Affidavit, [14], [22].
[23]Exhibit RK-1 to the First Keuris Affidavit, 23 [13]-[15].
The second question of law said to arise on the appeal relates to the October 2023 Decision, and is expressed as:
By dismissing the breach and noncompliance to the Injunction Order, and calling it a duplicate claim, did the member not consider that in the first instance it was not a duplicate claim, a breach of the injunction had occurred which is why I had requested a hearing, as the respondent and the rental provider's servants were in contempt of the tribunal…as per s 137 of the VCAT Act….
Under the heading ‘[t]he grounds relied upon are’ in the amended notice of appeal the applicant states:
Member dismissed injunction breach and referred to it as a duplicate claim. The alleged interference had occurred in August 2023 and the application made for interference and thus breach of the injunction was made seeking a compliance order. Contempt of court was not even considered.
Interpreting this benevolently, the applicant asserts that the VCAT fell into error because he applied to the VCAT to enforce compliance with the injunction by the respondent, arising from an alleged breach of the order in August 2023, and that, in considering that claim, the VCAT failed to consider the respondent’s contempt of its orders.
As the respondent submits, there is nowhere present in the application in the 2023 Proceeding any mention of the respondent breaching the injunction. Rather, the application requests an extension of the injunction term to allow the applicant more time to arrange for collection and storage of the goods the subject of the order. The October 2023 Transcript, exhibited to the applicant’s affidavit, reveals that the applicant stated just once in the course of the hearing that the injunction ‘has already been… breached… prior to 9 September…by the other parties’.[24] However, there is no request for the VCAT to consider this issue or make any finding of breach or contempt by the respondent. By contrast, the transcript repeatedly records the applicant stating that he seeks more time to retrieve his goods from the premises. It follows that there can be no arguable question of law in this appeal predicated on the asserted failure by the VCAT to consider the applicant’s application for contempt orders, as no such application was ever made to the VCAT.
[24]October 2023 Transcript, 14.
For the reasons given above, I accept the respondent’s submissions that the applicant has no arguable case on this appeal, and that the appeal is frivolous and vexatious in that it is lacking in merit or baseless.[25] I would dismiss the appeal under r 4.08(8)(b) and (c) of the MCP Rules, in accordance with the respondent’s summons. However, I am not persuaded on the evidence before me that the applicant has brought this appeal proceeding for an improper or collateral purpose, and so I do not find that the proceeding is an abuse of process.
Dismissal pursuant to ss 62, 63 and 64 of the CPA and r 22.16 and 22.22 of the GCP Rules
[25]In Hoh & Anor v Frosthollow Pty Ltd & Ors [2014] VSC 77, Derham AsJ provided a useful explanation of the terms ‘frivolous and vexatious’ (at [12]), which may not be words immediately understood by the applicant given he is not legal trained and represents himself: ‘(b) Frivolous or vexatious: These words in combination have traditionally been used to describe a wide variety of circumstances in which a claim is found to be groundless, or lacking a legal basis or merit.’
The respondent also seeks dismissal of the appeal as a civil proceeding to which the CPA applies.[26] Dismissal is sought pursuant to ss 62 and 63 of the CPA and under Order 22 of the GCP Rules, on the basis that the appeal enjoys no real prospect of success.
[26]See Kryzias v Kos [2020] VSC 54 (Caporale JR); Australian Education City Pty Ltd v Victorian Planning Authority (2020) 66 VR 597 (Daly AsJ).
In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (‘Lysaght’),[27] the Court of Appeal conveniently set outs the principles guiding the exercise of the power to summarily dismiss. The key matters to consider include whether the respondent to the application has a real as opposed to fanciful chance of success; that the power to terminate the proceedings should be exercised with caution; and that the discretion should not be exercised unless it is clear that there is no real question to be tried.[28]
[27](2013) 42 VR 27 (‘Lysaght’).
[28]Lysaght [35] (Warren CJ and Nettle JA).
Given my reasoning above in relation to r 4.08(8) of the MCP Rules, I conclude that the applicant’s case on this appeal enjoys no real prospect of success and should be dismissed by the Court under s 63 of the CPA and r 22.22 of the GCP Rules.
In my view, there is no justification for this case to proceed under s 64, despite its lack of prospects. The applicant was given two opportunities to file an amended notice of appeal; and when he finally did so, he made no amendments to the substance of the notice. Moreover, despite frequently stating that he had engaged or would shortly engage legal representation, no appearance has been filed by any legal representative on his behalf.
The appeal was commenced in October 2023. The applicant has failed to comply with the Court’s orders on time or at all, and he did not appear before the Court to contest the respondent’s summons. Overall, this proceeding is absorbing court time which ought be available to other litigants. As was held by Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd & Anor,[29] even self-represented litigants cannot continue to be permitted to file new pleadings and attempt to reformulate their claims:
…especially when it continues to subject other parties to cost and inconvenience and to add pointlessly to the load on the court’s already limited resources. There comes a point at which a self-represented litigant must be required to take responsibility for his choices...[30]
It is inconsistent with the principles for the just, timely, cost effective and efficient resolution of disputes as enunciated in the CPA to allow this appeal proceeding to continue.
[29][2012] VSCA 97.
[30]Karam v Palmone Shoes Pty Ltd & Anor [2012] VSCA 97, [36] (Nettle and Osborn JJA).
Other grounds of dismissal
Counsel for the respondent submitted that the other grounds of dismissal – as per r 23.01 of the GCP Rules and the Court’s inherent jurisdiction – serve as ‘belts and braces’ if the Court does not dismiss the proceeding on the other grounds.
Rule 23.01 of the GCP Rules authorises the Court to stay, or give judgment upon, any claim in a proceeding that is scandalous, frivolous or vexatious or an abuse of the process of the Court. The burden on this question lies on the party impeaching the claim. For the reasons set out above, the applicant’s appeal lacks legal merit and is baseless, and is therefore frivolous or vexatious and ought be dismissed under this rule or in the Court’s inherent jurisdiction.
Disposition
For the above reasons, I will dismiss the applicant’s appeal proceeding.
The respondent seeks orders that the applicant pay her costs of and incidental to the summons, as well as the costs of the proceeding, on an indemnity basis. At the hearing, I invited Counsel for the respondent to make submissions as to why, if the respondent was ultimately successful and costs were awarded to her, those costs should be ordered to be paid on an indemnity basis. Despite those submissions, and acknowledging that the respondent has been put to the expense of dealing with an unmeritorious proceeding, I do not consider the applicant’s conduct of the litigation, as a self-represented litigant, to have been deliberate, highhanded, or otherwise improper, so as to justify the making of an indemnity costs order. I will, accordingly, order that the applicant pay the respondent’s costs of the proceeding, including her costs of and incidental to the summons, on a standard basis.
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