FRAHM and SECURE FUNDING PTY LTD - [2010] WASAT 173

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: CONSUMER CREDIT (WESTERN AUSTRALIA) ACT 1996

CITATION: FRAHM and SECURE FUNDING PTY LTD [2010] WASAT 173

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 19 NOVEMBER 2010

DELIVERED : Edited reasons delivered orally on
19 NOVEMBER 2010

FILE NO/S: CC 464 of 2010

BETWEEN: TREVOR FRAHM
RAQUEL SAMSON FRAHM
Applicants
AND
SECURE FUNDING PTY LTD
Respondent

Catchwords:

Consumer Credit - Whether application should be dismissed - Whether res judicata - Whether proceedings constitute review of Supreme Court decision - Whether proceedings an abuse of process

Legislation:

Consumer Credit (Western Australia) Act 1996 (WA), s 70(1)
Consumer Credit (Western Australia) Code 1996 (WA), s 71
State Administrative Tribunal Act 2004 (WA), s 47

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicants: Mr T Frahm
Mr Goff (Representative)
Respondent: Ms E Margow (Representative)

Solicitors:

Applicants: N/A
Respondent: N/A

Case(s) referred to in decision(s):

McLean and Permanent Custodians Ltd [2010] WASAT 127

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants had applied to reopen a credit transaction entered into with the respondent. The respondent applied for the proceedings to be dismissed on the grounds that the Tribunal lacked jurisdiction or, alternatively, that the proceedings constituted an abuse of process.
The factual basis underlying the respondent's application was that the respondent had commenced proceedings against the applicants in the Supreme Court for payment of the full balance outstanding under the same transaction.
The Tribunal rejected submissions that it lacked jurisdiction on the grounds of res judicata, or because the enabling legislation did not permit a review of a Supreme Court decision. The Tribunal held that the principles of res judicata did not apply and that the proceedings did not constitute an attempt to exercise a review of a decision of the Supreme Court. The Tribunal accepted, however, that the proceedings constituted an abuse of process as no relief could be granted which could logically coexist with the Supreme Court judgment.
The proceedings were dismissed as an abuse of process.

The proceedings before the Tribunal

On 19 November 2010, the Tribunal issued an order dismissing these proceedings. The Tribunal provided its oral reasons for decision immediately before doing so and they are reproduced below from the transcript, subject only to minor editing to correct transcription errors and otherwise to set out and express the reasons in form more appropriate for publication.
In this matter, the applicants have applied under s 70(1) of the Consumer Credit (Western Australia) Code (Code) for the reopening of a transaction entered into with the respondent.
The respondent, at an early stage, foreshadowed raising jurisdictional issues and that is reflected in the respondent's statement of issues facts and contentions. The applicants have in turn filed a statement of issues, facts and contentions setting out the basis on which the applicants contend the Tribunal has jurisdiction and should reopen the transactions. The respondent applied for the proceedings to be dismissed on the above basis.
Since the filing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read FRAHM and SECURE FUNDING PTY LTD and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] WASAT 173
Decision Date: 19/11/2010

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Frahm and Secure Funding Pty Ltd was heard. The dispute centred around whether the defendant's application to dismiss the plaintiff's proceeding should be granted. The plaintiff, Frahm, had previously initiated proceedings in the Supreme Court of Queensland, which were dismissed by the trial judge. The defendant, Secure Funding, argued that the current proceedings constituted an abuse of process and were barred by the principle of res judicata.

The legal issues before the court were whether the application should be dismissed on the grounds that the proceedings constituted an abuse of process and whether the principle of res judicata applied to prevent the plaintiff from pursuing the same claims in the Federal Circuit Court. The court had to consider the nature of the previous proceedings, the scope of the dismissal, and whether the current proceedings were an attempt to re-litigate the same issues.

The court determined that the previous Supreme Court decision did not bar the current proceedings under the principle of res judicata, as the issues being raised in the Federal Circuit Court were not the same as those considered in the Supreme Court. The court held that the principle of res judicata did not apply as the current proceedings involved different causes of action and were not an abuse of process. The court further found that the dismissal of the previous proceedings was not a final determination on the merits of the case and did not prevent the plaintiff from pursuing the claims in the Federal Circuit Court.

The final orders of the court were that the defendant's application to dismiss the plaintiff's proceeding was dismissed. The court ruled that the proceedings were not an abuse of process and were not barred by res judicata. The plaintiff was therefore permitted to continue with their claims in the Federal Circuit Court.

Orders