Etta v Pearce
[2017] VSC 737
•7 December 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST
S CI 2017 03607
| SUNDER ETTA | Plaintiff |
| v | |
| RON PEARCE | First Defendant |
| RCT LAWYERS | Second Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 November 2017 |
DATE OF RULING: | 7 December 2017 |
CASE MAY BE CITED AS: | Etta v Pearce & Anor |
MEDIUM NEUTRAL CITATION: | [2017] VSC 737 |
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PRACTICE AND PROCEDURE – Application for summary judgment by the defendants – Whether the substance of a proposed originating process is relevant for the purposes of applying r 27.06(3) of the Supreme Court (General Civil Procedure) Rules 2015 – Application of r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 and s 63 of the Civil Procedure Act 2010 (Vic) – Whether doctrines of estoppel and abuse of process are inapplicable to a re-litigated claim solely on the basis that the first instance decision was made by a tribunal rather than a court – Sgargetta v Hayes [2016] VSC 150 [61] referred to –Plaintiff’s claims in this proceeding previously made in a proceeding at VCAT – Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 applied – Summary judgment granted on the basis that the claims were an abuse of process and otherwise have no real prospects of success.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For the First Defendant | Mr W Summons, solicitor | Whitehead Summons Lawyers |
HER HONOUR:
Mr Etta, in his statement of claim filed 7 September 2017, brings claims against his former solicitor, Mr Pearce and his firm, RCT Lawyers (‘solicitors’), concerning their alleged negligence and other breach of duty in the course of acting for Mr Etta in relation to his workplace injury claims between 14 May 2007 and 23 February 2011.
At a directions hearing listed before me on 12 October 2017, the solicitor for the solicitors, as anticipated, made an informal application for summary judgment in their favour. At the hearing on 30 November 2017, the solicitors also relied upon rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), which provides that:
Where a proceeding generally or any claim in a proceeding
(a) is scandalous, frivolous or vexatious; or
(b) is an abuse of the process of the Court—
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.
The solicitors relied upon s 63 of the Civil Procedure Act 2010 (Vic), which provides that the Court may grant summary judgment where a proceeding has no real prospects of success. In the alternative, the solicitors relied upon rule 63.03(3)(a), which provides that where the Court makes an interlocutory order for costs which is not paid, the Court may make an order that the proceeding be stayed or dismissed.
Prior to turning to the issues in the application itself, it is necessary to provide a brief account of the procedural history of this proceeding. Mr Etta originally sought to file the writ and statement of claim (‘statement of claim’) on or about 13 April 2017. However, the Prothonotary refused to accept the statement of claim. In a letter to Mr Etta dated 26 April 2017, she stated as follows:
The form or contents of the document show that were the writ to be sealed, the proceeding so commenced would be irregular or an abuse of process of the Court because it is difficult to understand, and in so far as it is capable of being understood, it seeks to re‑agitate matters previously decided by the Court.
Mr Etta sought to have the Prothonotary’s refusal to accept the statement of claim reviewed pursuant to rule 27.06(3), which provides that:
The Court may direct the Prothonotary to seal an originating process or accept a document for filing.
On 29 August 2017 I made the following orders:
1.The Court directs the Prothonotary to seal the Writ dated 13 April 2017 in which Sunder Etta is named as the plaintiff and Mr Ron Pearce and RCT Lawyers are named as the first and second defendants.
2.A copy of these orders as authenticated be served with the Writ.
3.The proceeding be listed for directions before Associate Justice Daly on a date to be fixed no less than 7 days after the filing of appearances by the defendants.
4.For the avoidance of doubt, paragraph 1 of the orders does not preclude the defendants, once duly served, from making any application concerning the form and/or substance of the statement of claim attached to the Writ.
5.There be liberty to apply.
In paragraph B of ‘Other Matters’, I stated as follows:
A review of the proposed Writ, along with the decision of Senior Member Davis in the Victorian Civil and Administrative Tribunal (‘VCAT’) in [2013] VCAT 2143, and decisions in subsequent appeals from that decision tends to support the conclusion reached by the Prothonotary. However, given the consequences for the proposed plaintiff if the proposed Writ was unable to be issued, and the involvement of the proposed defendants in past proceedings at VCAT and in this Court, I consider that it is appropriate that the parties be given an opportunity to be heard on whether the proceeding should be permitted to proceed, and if so, in its current form. These orders are intended to give effect to this course of action, and do not, for the avoidance of doubt, involve any final determination of the concerns raised by the Prothonotary in her letter to the proposed plaintiff dated 26 April 2017.
Essentially, I formed the view that, while there is no hard and fast rule about the matter, where the concern about a proposed originating process is focussed upon the substance of the claims in the document, rather than the form of the document, it is generally appropriate for the parties (including the proposed defendant) to have an opportunity to be heard on the matter. This is particularly the case where, as in the current proceeding, there is a question as to whether or not the proceeding should proceed because it is subject to the doctrine of res judicata or issue estoppel, or is otherwise an abuse of process.
I shall not go into any great detail about the allegations made in the statement of claim, which I agree is difficult to follow, and the subsequent affidavits and submissions filed by Mr Etta. It is fair to say that the nub of Mr Etta’s complaint against the solicitors is that the solicitors mishandled the various aspects of his personal injuries claim against his former employer, whereby Mr Etta claimed that he had suffered compensable injuries to his lower back and his neck, and as such, Mr Etta has been unable to recover the compensation (both statutory benefits, and damages at common law) to which he says he is entitled.
The difficulty faced by Mr Etta in bringing his claims against the solicitors, as foreshadowed by the Prothonotary in her letter of 26 April 2017, and repeated by the solicitors in their submissions, is that Mr Etta’s claims in this proceeding were comprehensively and exhaustively ventilated and determined by a proceeding brought by him against the solicitors in the Victorian Civil and Administrative Tribunal in 2012, being proceeding J160/2012 (‘VCAT proceeding’). On 16 December 2013, Senior Member Davis dismissed Mr Etta’s claims in the VCAT proceeding,[1] and subsequent applications for leave to appeal to Zammit AsJ (as she then was), Hargrave J, the Court of Appeal, and the High Court were dismissed.
[1][2013] VCAT 2143.
The principles concerning res judicata, issue estoppel, and abuse of process are well established, and it is not necessary here to deal with them in any great detail. Strictly speaking, it is not necessary for me to decide whether in fact Mr Etta is barred from bringing his claims by reason of the doctrines of res judicata, or on the basis of an issue estoppel, as it is well established that:
The Court will, in its inherent jurisdiction to prevent oppression, under a stay of a proceeding where the subject matter if not strictly res judicata has been so dealt with in a former proceeding between the same parties that it would be inequitable to allow it to be raised again.[2]
[2]see ‘Williams - Civil Procedure’ at p 3444.13 and authorities referred to in that paragraph.
As can be gleaned from the above, Mr Etta represents himself in this proceeding, and represented himself in the VCAT proceeding and subsequent appeals (save for his application for leave to appeal to the Court of Appeal). His command of English seems to be reasonable, but it is clearly not his first language. His understanding of the legal system, in particular, legal principles such as issue estoppel and abuse of process, and the relationship between his claims against his former employer and his claims against the solicitor, is understandably poor.
Given the above, and the lack of focus in Mr Etta’s pleadings and other court documents, at both the directions hearing and the hearing of the application itself, I sought to impress upon Mr Etta the need for him to identify what issues, and what claims, in the statement of claim have not been heard and determined in the VCAT proceeding. Specifically, I noted that the VCAT proceeding was:
(a) issued some time after the termination of Mr Etta’s retainer of the solicitors;
(b) heard over three sitting days; and
(c) was the subject of careful and detailed reasons totalling some 64 paragraphs.
I shall return to Mr Etta’s response to this question after summarising what took place in the VCAT proceeding and subsequent applications for leave to appeal.
Mr Etta’s points of claim in the VCAT proceeding ran to seven pages, and interposed his claims against the solicitors with details of his medical conditions, the expert evidence in support of his alleged injuries, and details of what occurred at the County Court after his retainer of the solicitors ended. Relevantly, the points of claim refer to:
(a) his neck injury not being referred to the medical panel;
(b) a settlement reached out of court on 13 May 2009 with respect to payment of weekly payments and (capped) medical expenses, of which he complained;
(c) a finding of a medical panel concerning his back injury made on 4 September 2009;
(d) a settlement agreement made on 13 October 2010 relating to a serious injury application, which he said he was pressured to sign;
(e) his dismissal of the solicitors on 10 February 2011. Notwithstanding the end of their retainer, on 23 February 2011 the solicitors filed a common law claim in the County Court seeking damages for pain and suffering only in relation to both the alleged back and neck injuries;
(f) Dr Richard Bittar’s (neurosurgeon) provision of a whole person impairment assessment of 15 per cent (for the back and the neck injuries). On 24 February 2012;
(g) Mr Etta’s medical conditions and symptoms in some detail; and
(h) The following statement:
Due to the negligence of solicitor Ron Pearce for neck and thoracic spine injury, I have been rejected no fault medical claim by the County Court. I underwent severe financial crises and mental turmoil. I lost my reputation. I borrowed money $1,50,000 (sic). I was given vacate notice I am embarrassed, could not pay my bills. Borrowed money for my daughter’s education of 3,00,000 (sic) pending medical bills $30,000.
As noted above, following the hearing of the VCAT proceeding, Senior Member Davis gave detailed reasons in dismissing Mr Etta’s claim. In paragraph 3 of the reasons the Senior Member stated as follows:
The claim for negligence is brought on two bases. First, the applicant alleges that the respondent solicitor was negligent because he did not arrange for the medical panel to assess impairment benefits pursuant to the Accident Compensation Act 1985 (the Act) taking into account the alleged injuries to the applicant’s neck. Secondly, the applicant alleges negligence against the solicitor on the basis that the solicitor allegedly failed to obtain a serious in jury certificate pursuant to the Act for economic loss which included loss of earning capacity. A serious injury certificate was obtained by consent for pain and suffering.
In his reasons, the Senior Member went through the history of Mr Etta’s claims against his former employer, by reason of a fall he had in January 2003, and his engagement of the solicitors in 2007. The Senior Member referred to what took place at the medical panel, as follows:
The applicant attended the Medical Panel on 24 July 2009. The applicant’s low back injury was the vehicle used for the purpose of obtaining an assessment from the Medical Panel. No complaint was made by the applicant about his neck. At the instruction of the Medical Panel, the applicant was examined by Professor Malcolm Sim (occupational physician) and Associate Professor Miron Goldwasser (orthopaedic surgeon), both examinations taking place on 24 July 2009.
In the history recited in the Reasons for Opinion of the Medical Panel, reference is made to what the applicant told the panel. In the history that the applicant gave to the panel, he made no mention of neck injury [see Tribunal Book p 195]. Also, the complaints that he made to the panel, he also made no mention of neck injury. In the panel’s reasons for decision [Tribunal Book p 196], it is stated:
Currently the worker continues to complain of constant low back pain. He said this radiates up the spine to the head with associated headache.
On 4 September 2009, the Medical Panel issued a certificate stating that in its opinion, ‘the worker has a 5% whole person impairment resulting from the accepted lower back injury when assessed in accordance with Section 91 for the purposes of Sections 98C and 134AB(3) and (15) of the Act’.
On 21 September 2009, the applicant purported to sign a document prepared by GIO whereby he accepted the panel’s calculation of entitlement. Again, as with the last signature, for the reasons therein given, I accept that is the signature of the applicant.
The Senior Member referred to the serious injury application made by the solicitors on Mr Etta’s behalf, and referred to the evidence given by Mr Tobin SC as to what transpired on the day the matter came on for hearing, as follows:
… I formed an opinion that this application may fail in relation to pain and suffering and it was highly likely that it would fail in relation to the economic loss aspect of the serious injury application.
…
I gave to the Plaintiff certain further advice which consistent with my earlier advice was that he was likely to lose the economic loss aspect of his claim and may also fail on the pain and suffering aspect.
…
I did inform Mr Etta that there was a real risk of failure of his originating motion if he proceeded to hearing and a very high probability that he would not obtain leave to bring proceedings for pecuniary loss.
…
I formed a judgement that he (Mr Etta) would not impress as a witness as he was circuitous in his answers to significant questions and preoccupied with certain issues.
The Senior Member noted that Mr Tobin was an experienced personal injuries barrister, and his opinion was to be accorded great weight. He then referred to the agreement reached between Mr Etta and the WorkCover insurance agent whereby Mr Etta was granted a serious injury certificate for pain and suffering only (ie not economic loss). The Senior Member rejected Mr Etta’s claim that he was pressurised into the settlement, stating that ‘where there is a conflict of evidence between the applicant’s lawyers on the one hand and the applicant and his lawyers on the other hand, I accept the evidence of the applicant’s lawyers’. He also accepted that Mr Etta fully understood the ramifications of the settlement.
The Senior Member then referred to the deterioration of the relationship between Mr Etta and the solicitors, the termination of the retainer, and the issue by the solicitors of a writ in the County Court on 23 February 2011. He noted that the particulars of injury referred to in the statement of claim referred to injury to the cervical spine, that is, Mr Etta’s neck injury. He noted that the proceeding came on for hearing on 14 August 2012, with Mr Etta appearing in person. The matter settled, with Mr Etta receiving $150,000 for pain and suffering.[3] The Senior Member noted that, if Mr Etta had received a greater impairment benefit, that would have to have been deducted from the settlement sum.
[3]The evidence filed by Mr Summons suggests, oddly, that Mr Etta has returned the cheque to the WorkCover claims agent.
The Senior Member noted that in the meantime, Mr Bittar, a neurosurgeon, examined Mr Etta, and provided a report on 24 February 2012 and that this took place after the termination of the retainer on 23 February 2011. He stated, under the heading, ‘Whether negligence in Assessment’, as follows:
The basis of Mr Etta’s claim for negligence in relation to his assessment of 5% were that reports in relation to his neck were not sent to the Medical Panel. In particular, he referred to the report of Mr Bittar. However, it cannot be negligence for the solicitor not to have sent that report to the Medical Panel because it was made long after the solicitor’s retainer had finished. That is, it was not in existence at the time the impairment assessment was made.
…
In my view, there does not appear to be anything in Mr Kudelka’s report which would alert his lawyers either at the time of the assessment by the panel or during the serious injury proceeding, that there was any problem with the neck other than what was already known.
…
In my view, it is clear from the documentation and the signatures that the applicant has put on various documents that he well knew that his assessment was only for a lower back injury. It was also clear, and I see no reason it was not clear to the applicant, that that was his major injury that was considered at that time. It was only later that Mr Bittar’s report suggested that there may be a 15% incapacity for the neck. I agree with Mr Jewell SC and Mr Guthrie, who appeared on behalf of the respondent, that it was Mr Bittar’s letter that made Mr Etta think that the respondent solicitor had done something wrong and was negligent. However, on the basis that that letter was made approximately 12 months after the solicitor’s retainer was finished, in my view, that letter is of little relevance to this proceeding.
The documents to which I have referred to above, clearly showed that at all times, Mr Etta was knowledgeable, as to the claim (the assessment) that was to be made, and was aware that the major injury for the assessment was to be his lumbar spine. There was no complaint by Mr Etta to Mr Pearce or anyone else prior to Mr Bittar’s report that the assessment made by the Medical Panel should have taken into account the cervical spine. Therefore, in my view, there was no negligence on behalf of the respondent solicitor.
In any event, as Mr Jewell SC pointed out, there cannot be negligence without damage and, in this particular instance, Mr Etta has suffered no damage. As I have noted earlier, the applicant agreed to common law settlement of $150,000 for pain and suffering. That common law settlement included damages to both his cervical and lumbar spine. Therefore, it included any damage he had to his neck.
In relation to Mr Etta’s claims concerning the solicitors’ alleged negligence in the conduct of the serious injury application, the Senior Member also found, in summary, as follows:
(a) at the time he settled the serious injury application in October 2010, Mr Etta understood that it was unlikely that he would be successful in a claim for a serious injury certificate for economic loss, and that his claim for pain and suffering was at risk;
(b) accordingly, there was no negligence on the part of the solicitors with respect to the claim for a serious injury certificate, and, in any event, given Mr Tobin’s evidence concerning the prospects of success of the serious injury application, Mr Etta had not established any loss;
(c) he referred to and dealt with a number of complaints made by Mr Etta concerning the conduct of the hearing before him; and
(d) he concluded as follows:
I thus conclude that the application should be dismissed. There was no negligence on the part of the respondent solicitor either in relation to the impairment assessment or in relation to the serious injury certificate. In all matters that were raised before the Tribunal, in my view, the respondent solicitor acted quite properly. Further, in relation to the matter concerning serious injury certificate, the solicitor did all he could and briefed experienced and competent counsel to appear for and advise the applicant.
What happened thereafter is helpfully summarised in the decision of Hargrave J in proceeding S CI 2014 01759. On 10 September 2014, Hargrave J heard an appeal from a decision of an associate judge to refuse to grant Mr Etta leave to appeal from the decision in the VCAT proceeding. His Honour stated as follows:
The application for leave to appeal was heard by the associate justice on 25 July 2014. Her Honour delivered written reasons for dismissing the application with costs. In summary, the associate justice decided that it would be futile to extend the time for Mr Etta to seek leave to appeal under s 148(1) of the Act because there was nothing before the Court in Mr Etta’s draft notice of appeal, or in his oral submissions or affidavit material, which warranted the grant of leave. Specifically, the associate justice determined that:
(1) the draft notice of appeal did not identify a question of law;
(2) there was no error apparent on the face of the Tribunal’s reasons;
(3)Mr Etta had failed to identify any significant argument that the Tribunal had made an error of law. Rather, he sought to attack the Tribunal’s factual findings; and
(4)taking Mr Etta’s case at its highest, it appeared to the associate justice that he was alleging that it was not reasonably open for the Tribunal to find as it did on the evidence. The material put before the Court did not establish an arguable case on this ground.
Further, his Honour stated:
In his appeal documents, Mr Etta has endeavoured to state some questions of law arising from the Tribunal’s decision. His complaints are that factual errors were made by the Tribunal, but he was unable to articulate any reason why the factual findings he complains of were not open on the evidence before the Tribunal. Further, nowhere in his appeal documents has he endeavoured to grapple with the reasons given by the associate justice or to establish error in those reasons.
The reasons continue as follows (omitting footnotes):
Given that Mr Etta is a self-represented litigant, I endeavoured to give him an opportunity to orally formulate his contentions that there were errors in the associate justice’s reasons for decision. Understandably, Mr Etta was unable to distinguish between submissions that the Tribunal had erred and submissions that the associate justice had erred. He continually sought to re‑argue the whole of his case before the Tribunal, in particular by seeking to challenge the Tribunal’s factual findings, in some cases by evidence from the bar table that was contrary to those factual findings. I proceed to consider the principal matters relied upon by Mr Etta as errors of law made by the Tribunal.
Mr Etta contended that the Tribunal’s findings in paragraphs 10 and 11 of its reasons – that his complaints about his neck injury were not placed before the Medical Panel – were the result of the respondent’s negligence. He placed particular reliance on a letter dated 7 July 2009 from the WorkCover insurer (GIO) to the respondent’s firm. He contended in effect that this letter made it clear to the firm that any further material relating to the Medical Panel’s opinion as to the degree of his whole person impairment should be provided by 21 July 2009. In that regard, Mr Etta contended that there was evidence relating to his neck injury which he forwarded personally to the Medical Panel before the panel made its impairment assessment on 4 September 2009 in respect of his lower back injury. I note that, if that is so, the Medical Panel did have evidence about Mr Etta’s neck injury.
The difficulty with Mr Etta relying upon these documents is that he acknowledged that they were not in evidence before the Tribunal. His response was that he was denied natural justice at the Tribunal, because the hearing lasted only two days and he was ‘stopped’ when he endeavoured to tender relevant evidence. The difficulty with this submission is that Mr Etta has placed no evidence before the Court in an admissible form as to what transpired at the Tribunal.
Further, the Tribunal determined that, even if it is assumed that the respondent acted negligently in not providing relevant information to the Medical Panel concerning Mr Etta’s neck injury, Mr Etta suffered no loss as a result. The Tribunal noted that if Mr Etta had received a higher impairment assessment from the Medical Panel as a result of his neck injury, he would have been awarded a lump sum payment under ss 98C and 98D of the Accident Compensation Act 1985. The Tribunal reasoned, in my opinion correctly, that any such lump sum payment would have been deducted from the $150,000 settlement which Mr Etta later received in his personal injuries claim in the County Court for pain and suffering. In my opinion, no error has been demonstrated in the Tribunal’s reasons in this regard.
Mr Etta next submitted that the Tribunal’s decision was manifestly unreasonable because it did not take account of the evidence of Dr Bittar in his report dated 24 February 2012. As the Tribunal’s reasons demonstrate, that report was provided long after the respondent ceased acting as Mr Etta’s solicitor. He contended, however, that Dr Bittar’s report demonstrates that, had the respondent properly investigated his neck injury prior to the Medical Panel assessment, the extent of his neck injury would have been revealed at that time. If this argument was to be accepted, it would also be met by the Tribunal’s reasoning summarised above. Any lump sum payment received by Mr Etta as a result of a higher assessment of impairment by the Medical Panel in 2009 would in any event have been deducted from his later settlement amount for pain and suffering damages.
Finally, Mr Etta continued to maintain that, notwithstanding the clear and reasoned factual findings by the Tribunal, he was ‘pressurised’ into signing the ‘Settlement Authority’ document referred to in paragraph 23 of the Tribunal’s reasons, under which he abandoned any right to make a claim for economic loss based on loss of future earning capacity. In this respect, Mr Etta’s arguments on appeal amounted to him seeking to re‑argue that aspect or the case which was decided adversely to him by the Tribunal. In fairness to him, when it was explained that the Tribunal’s reasons in this regard did not demonstrate any error, he did not pursue the point with any vigour – accepting the Court’s indication that this was an issue which he had run and lost before the Tribunal on a question of the fact only.
Accordingly, Hargrave J dismissed the appeal from the associate judge. Applications by Mr Etta for leave to appeal to the Court of Appeal and the High Court were dismissed.
As can be seen from the reasons of Hargrave J above (and the reasons of the Senior Member, for that matter) there appears to be a substantial, if not complete overlap between the issues agitated by Mr Etta in the VCAT proceeding (and consequent appeals) and the issues sought to be agitated in this proceeding. That such a conclusion was able to be drawn was supported by a schedule handed up at the hearing of this application by the solicitor for the solicitors, Mr Summons, (who I note also instructed counsel at the hearing of the VCAT proceeding, and appeared for the solicitors at the applications for leave to appeal). With that in mind, I pressed Mr Etta to identify, in the clearest possible terms, whether there were any new claims being made in this proceeding that were not made in the VCAT proceeding. I did believing that it was possible that Mr Etta did not understand that seeking to re‑litigate the claims in the VCAT proceeding in this proceeding was impermissible, but stressed the importance of him doing so, given the nature of the solicitors’ application.
In response, Mr Etta referred to three matters which he said distinguished the claims in this proceeding from the claims in the VCAT proceeding:
(a) that he did not provide the solicitors with authority to settle his statutory benefits claim in 2009. In particular, Mr Etta seemed to be aggrieved by the cap on medical and like expenses of $3,500, which he said was not authorised by him;
(b) Mr Etta said that the VCAT proceeding did not take into account Dr Bittar’s report of 2012; and
(c) Mr Etta said that the solicitors did not provide relevant documents to the medical panel prior to his examination by the medical panel on 24 July 2009.
During the course of the hearing, Mr Etta also repeated his assertion that he wanted to raise in this proceeding documents and issues he was not allowed to put before VCAT, because of the Senior Member’s denial of natural justice.
It is apparent from the reasons that each of the claims referred to in paragraph 28 above were the subject of the VCAT proceeding. The claim in paragraph 28(a) above was not expressly dealt with in the Senior Member’s reasons. However, it was referred to in paragraph 14 of Mr Etta’s points of claim in the VCAT proceeding. During the hearing of this application, Mr Etta handed up a copy of terms of settlement dated 13 May 2009, signed by counsel acting on his behalf, along with a copy of an authority document signed by him. Mr Etta asserts that the handwritten annotations on this document, in particular, the cap upon medical and like expenses of $3,500, and his acknowledgement that ‘liability continues to be rejected in respect of my knee injury’, were made after he signed the authority document.
I note that the solicitors sent a copy of the authority document (as annotated) to the Accident Compensation Conciliation Service. In my view, it is inherently implausible that a solicitor (and possibly counsel) deliberately falsified a document of that nature. In any event, this claim was raised in the VCAT proceeding (albeit only with respect to the annotation concerning the neck injury), and, I can infer from the absence of any discussion in the Senior Member’s reasons, was not vigorously pursued by Mr Etta.
As for the claim raised in paragraph 28(b) above, the Senior Member expressly referred to Dr Bittar’s report at paragraphs 34, 46 and 47 of his reasons, and noted that this report came into existence after the termination of the solicitor’s retainer in 2011. Even if the matter had not been squarely dealt with by the Senior Member, it is difficult to see how any court could reach a different conclusion from the Senior Member in relation to the relevance of this report to Mr Etta’s claims against the solicitors.
As for the claim in paragraph 28(c) above, again, Mr Etta’s complaints concerning the solicitors’ conduct of the medical panel process are referred to at paragraph 15 of his points of claim in the VCAT proceeding. What transpired during the medical panel process was dealt with at paragraphs 10 to 12 of the Senior Member’s reasons, and at paragraphs 39 to 49 of the reasons.
Finally, any alleged denial of natural justice on the part of the Senior Member was raised by Mr Etta in his application for leave to appeal against the decision in the VCAT proceeding, as shown by the extract of the reasons of Hargrave J at paragraph 25 above, and indeed, could only have been raised by Mr Etta in his applications for leave to appeal from the decision in the VCAT proceeding. It is entirely inappropriate for a litigant to seek to impugn a judicial officer’s conduct of a trial of a proceeding in a separate proceeding outside the appeal process.
While my decision was reserved, I did give some consideration as to whether the doctrine of issue estoppel, and principles of abuse of process apply when the claims which are being sought to be re‑litigated have been dealt with at first instance by a statutory tribunal, such as VCAT, rather than by a court. In Sgargetta v Hayes,[4] Macaulay J raised some doubts as to whether, in claims made against a lawyer under the Australian Consumer Law, VCAT was entitled to adjudicate a claim in negligence, and also, whether an Anshun estoppel could arise in a proceeding before a court due to an earlier proceeding at a tribunal such as VCAT. In his view, the principles probably do apply when the earlier proceeding was before a tribunal. Similar doubts were expressed concerning whether a later proceeding could amount to an abuse of process when the first proceeding was before a tribunal. However, his Honour did not find it necessary to resolve the points for the purpose of the matter before him.
[4][2016] VSC 150, [61]. His Honour noted the statement of Weinberg JA in Morris v Riverwild Management Pty Ltd (2011) 38 VR 10, [64] to the effect that while the question remained unresolved, in his view tribunal decisions could give rise to cause of action and issue estoppel.
I have not had the benefit of any argument on these issues. However, bearing in mind the policies underlying the doctrines of issue estoppel and abuse of process, such as the desirability of finality of litigation, the prevention of parties being unduly vexed by repetitive litigation, and the potential harm to the administration of justice by the continued re‑litigation of claims and issues, my view is that there is no reason, in an appropriate case, for relief to be denied to a defendant in the position of the solicitors in this proceeding solely because the previous proceeding was in a tribunal, rather than a court. In any event, any doubt about this issue in the circumstances of the current application can be set aside given that the decision in the VCAT proceeding was subject to three successive applications for leave to appeal in this Court, such that the issues and claims in the VCAT proceeding were squarely before this Court. Further, the Senior Member dealt with Mr Etta’s claims of negligent conduct under the Legal Profession Act 2004, not the Australian Consumer Law.
Accordingly, Mr Etta is estopped from re‑litigating the issues in this proceeding given that they were squarely dealt with in the VCAT proceeding, and he has exhausted all avenues of appeal from the VCAT proceeding. Alternatively, the proceeding is an abuse of process, consistent with the following statement of the High Court in Tomlinson v Ramsey Food Processing Pty Ltd:[5]
Accordingly, it has been recognised that making a claim or raising an issue which was raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.
[5](2015) 256 CLR 507, [26].
As such, judgment should be entered in favour of the defendants, on the basis that Mr Etta’s claims are an abuse of process of the Court, and otherwise have no real prospects of success. I cannot discern any other reason that Mr Etta’s claims in this proceeding should otherwise go to trial.[6]
[6]Civil Procedure Act 2010 (Vic), s 64.
As such, it is not necessary for me to deal with the alternative submissions made on behalf of the solicitors, that the proceeding be stayed until Mr Etta pays the solicitor’s costs of the VCAT proceeding, which have been calculated by Mr Summons to be in the sum of $64,625.27. Given that Mr Etta claims to be impecunious, and the best evidence available suggests that he has not received (by reason of his own actions) the settlement sum of $150,000, it seems that making such an order, if appropriate, would have the effect of bringing an end to the proceeding.
However, if it were necessary to consider the issue, I would have made such an order, pursuant to the inherent jurisdiction of the Court.[7] Again, a relevant factor in my discretion to make such an order ‘to ensure there is no abuse of process, constituted by exposure of the defendant to the cost of the second proceeding while its costs of the first proceeding remain unpaid.’[8]
[7]See Phillip Morris Ltd v Attorney-General for the State of Victoria and anor (2006) 14 VR 538.
[8]Ibid [97].
Accordingly, I will enter judgment for the defendants on the claims in the proceeding, and order that the proceeding be dismissed, with costs.
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