Gaia Partners Pty Ltd ACN 627 832 455 v Jahanphanah (Civil Dispute)
[2022] ACAT 60
•30 June 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GAIA PARTNERS PTY LTD ACN 627 832 455 v JAHANPHANAH (Civil Dispute) [2022] ACAT 60
XD 1176/2021
Catchwords: CIVIL DISPUTE – whether the application should be dismissed pursuant to section 32 of the ACT Civil and Administrative Tribunal Act 2008 – whether these proceedings are an attempt to relitigate issues subject to previous orders in other proceedings – whether current proceedings are lacking in substance or an abuse of process – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 32
Tribunal:Senior Member G Lunney SC
Date of Orders: 30 June 2022
Date of Reasons for Decision: 30 June 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1176/2021
BETWEEN:
GAIA PARTNERS PTY LTD ACN 627 832 455
Applicant
AND:
OMID JAHANPHANAH
Respondent
TRIBUNAL:Senior Member G Lunney SC
DATE:30 June 2022
ORDER
The Tribunal orders that:
The application is dismissed pursuant to section 32 of the ACT Civil and Administrative Tribunal Act 2008.
………………………………..
Senior Member G Lunney SC
REASONS FOR DECISION
Decision
In this decision, Gaia Partners Pty Ltd is referred to as the applicant. Omid Jahanpanah is referred to as the respondent. Mr Johnson is a reference to Mr Petar Johnson, the applicant’s authorised representative for the purposes of this application. This is irrespective of what their status was in other litigation being referred to.
This is a civil dispute application. It was filed on 14 December 2021. The applicant company’s representative was shown to be Petar Johnson. The type of application was said to be a damages application to recover damages for a tort; and also, as an application under an authorising law, being the ACT Crimes Act, the Competition and Consumer Act, and ACT Human Rights Act. The amount claimed was $15,000. It also sought an order for “an apology from the defendant and a statement of no contact with the company or staff for a period of 12 months”.
A ‘Statement of Claim’ was attached to it. It was a long document, but the following part of it purported to summarise the claim.
This claim is comprised of:
Item 1 - Negligently operating a taxi vehicle by the applicant in breach of ACT Public Safety Guides for Taxi Vehicle Operations and Culpable Driving.
Item 2 - Negligence causing property damage in relation to failure to take a vehicle off the road when advised by a mechanic. Negligently driving a public transport vehicle when they were advised it was unsafe to do so by a registered mechanic. Acts endangering life in the interference of a public transport facility. Culpable Driving.
Item 3 - Willful and Negligent destruction of evidence which was known to the defendant as likely to be used in proceedings in relation to the incident.
Item 4 - Extortion, Intimidation and verbal assault of company staff in relation to moneys not owed.
Item 5 - Failure to return property when legally instructed to do so.
Item 6 - Common assault.
The damages sought are a culmination of $15,000 for civil damages arising from each or any of these actions by the named party.
On 4 February 2022, the Registrar notified the parties that the matter was listed for directions on 11 March 2022 by telephone. At the directions hearing, the matter was set down for hearing to consider whether an order under section 32 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), should be made. The hearing took place on 2 May 2022, and the decision was reserved.
In considering this issue, it is necessary to set out the history of litigation between the parties insofar as it is relevant to the issues.
History
On 24 February 2020, the respondent in these proceedings filed a civil dispute application in this tribunal commencing proceedings XD 324/2020. The respondent to his application was ACT AllGreen Cabs.
On 26 October 2020, by an in chambers order the name of the respondent was changed to Gaia Partners Pty Ltd, the applicant in the present proceedings.
The respondent claimed that he was owed the sum of $5,136.70 arising out of his leasing as a driver, of a taxicab from the applicant. The claim also included $9 search fee; and $159.50 filing fee.
The response filed by this applicant in those proceedings on 25 November 2020 read as follows:
The Company disputes the application. Key to our position is:
1.That the applicant was undertaking a preliminary trial and no contract of lease was entered into.
2.That the applicant was substantially irresponsible [sic] and treated the vehicle with absolute disregard which caused major damage the vehicle and the assets of the company. These costs were a direct result of his negligence - have been deducted from any due payment.
3.The applicant extracted a 2nd vehicle under extreme duress with treats of major risk to AllGreenCabs and the company took action.
4.The applicant was offered payment after costs numerous times in full and then after costs when the damage was investigated.
5.The applicant undertook substantial threats, intimidation and physical violence in days afterwards. Evidence related to this case will be supplied shortly, but the business manager at the time has left the company and has been interstate, he has confirmed that he is able to detail his experience in format for the court and this will be provided shortly. We seek 2 more weeks 9/12 to provide this core evidence as defense. We have only been provided with this application on the 3/11/20.
The representative of the Company was shown as being Petar (Ivanoski) Johnson.
After filing the response, the applicant missed a number of critical dates for hearings and default judgment was entered on 17 March 2021 when the applicant failed to attend a directions hearing. A final order for $5,553.44 was made after assessment of damages on 7 April 2021.
On the afternoon of the same day on which the orders were made, Mr Johnson for the applicant filed an application to have those orders set aside and a new hearing date established. That application was set down for 4 May 2021. On the hearing day, the Tribunal called Mr Johnson. He did not answer the phone and could not otherwise be contacted. The application was dismissed.
On 5 May 2021, Mr Johnston submitted a further application for the orders to be set aside. On 12 May 2021, the application was dismissed pursuant to section 32 of the ACAT Act.
On 21 May 2021 Mr Johnson made a further set-aside application which was rejected by the tribunal.
On 6 July 2021 Mr Johnson on behalf of the applicant filed an application for leave to appeal out of time from the order of 7 April 2021. On 11 August 2021 Presidential Member McCarthy gave leave to appeal and directed that an application for appeal against the order of 7 April 2021 be made by 5pm on 18 August 2021.
The applicant failed to file the application for appeal until 25 August 2021. The respondent objected to the appeal proceeding, submitting that Mr Johnson refused to engage and respect procedural orders. Further, Mr Johnson had no respect for the respondents or the tribunal’s time. He’d been given a last chance and he’d missed it.
Presidential Member McCarthy decided to crystalise the issue of whether the order of 7 April 2021 should be set aside. He therefore ordered that a hearing be conducted “on the preliminary question of whether the order made on 7 April 2021 should be set aside”
The issue was set down for hearing which was conducted on 13 October 2021 with the respondent in person and Mr Johnson for the company. A decision was handed down on 21 December 2021.
Presidential Member McCarthy decided that the applicant should not be given another opportunity to defend the claim, nor to bring its own cross claim arising out of the circumstances of the claim. He ordered that the orders made on 7 April 2021 should be set aside and ordered that the applicant pay the respondent the sum of $5,705.64 by 18 January 2022.
Consideration
At the time of the hearing of this application, 2 May 2022, there had been one hearing inter partes of issues between the applicant and the respondent. That was the hearing on 13 October 2021 before Presidential Member McCarthy. The effect of that was to set aside the orders made on 7 April 2021 and make an order for payment of a greater sum of money as calculated in the decision.
There is therefore an order made on 21 December 2021 for payment of $5,705.64. This order is based on the entry of judgment on 17 March 2020 and listing for assessment of damages on 7 April 2021, when an enforceable order for payment of the sum mentioned was made. Because this order was made in the absence of the applicant, it was vulnerable to an application to set it aside. That process is a well known one and there are criteria that have to be established if such an application is to be successful.
Such an application to set aside was made, but was unsuccessful because there was no appearance by the applicant. The proceedings heard by Presidential Member McCarthy were effectively a further application to set aside the 7 April 2021 order. This was heard in October 2021, and both parties participated in the hearing. The order was not set aside.
An issue which arises in respect of the application now made by the applicant is whether those proceedings are an attempt to relitigate the issues subject to the orders of 7 April 2021 and 21 December 2021 and thus subject to the doctrine of res judicata.
The full Latin tag for this doctrine is res judicata pro veritate accipitur. It means ‘a thing adjudicated is received as the truth’. The decision of 7 April 2021, while it remains an enforceable decision retains the benefit of the protection of the doctrine. That applies to the decision of 21 December 2021. While those orders are in force, the facts giving rise to the causes of action raised in the proceedings cannot be re-litigated.
The facts and issues raised in matter XD 324 of 2020 are set out in the application and response which were filed by the parties to the proceedings. They describe the same factual basis and issues arising as those sought to be agitated by the applicant in these proceedings and are referred to above. The applicant is therefore barred from raising them for determination by the tribunal while the previous orders remain in force.
The second issue which arises is the application of section 32 of the ACAT Act. This provision provides as follows.
32 Dismissing or striking out applications
(1)This section applies if the tribunal considers that an application, or part of an application is––
(a)frivolous or vexatious; or
(b)lacking in substance; or
(c)otherwise an abuse of process; or
(d)made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
(2)The tribunal may, by order, do 1 or more of the following:
(a)refuse to hear the application or part of the application;
(b)dismiss the application or part of the application;
(c)direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i)within a stated period of time; or
(ii)without the leave of the tribunal.
NoteIf the application is for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005, the tribunal may also order the applicant to pay costs (see s 48 (2) (d)).
(3)The tribunal may make an order under subsection (2) on its own initiative or on application by a party.
(4)The tribunal may vary or revoke a direction given under subsection (2) (c)—
(a)on its own initiative; or
(b)on application by the person who is the subject of the order.
NoteThe tribunal must observe natural justice and procedural fairness (see s 7).
In the view of the Tribunal the commencement of these proceedings is clearly lacking in substance and is an abuse of process for the purposes of section 32(1) of the ACAT Act. It is an attempt to reagitate issues the subject of previous orders. It is based on unsubstantiated alleged rights and vague assertions of evidence. The applicant has delayed and been inactive leading to serious prejudice and inconvenience to the respondent. The Tribunal infers from the circumstances that Mr Johnson has sensed that a new approach is necessary after the failure of his earlier efforts to have the order of 7 April 2021 set aside.
As Mr Johnson submitted during these proceedings, there has been no determination on the merits of the respondent’s original claim, nor of the facts and issues raised by the applicant in its response in those original proceedings. However, once raised in earlier proceedings and being the subject of an enforceable decision, in order to force a hearing on the merits, the formal decision must be set aside. The applicant has reached the end of the road in that endeavour. These proceedings are an attempt to find an alternate path to obtain a merits hearing. That cannot be done while the decisions of 7 April 2021 and 21 December 2021 are in effect. This application is doomed to failure, and it is an abuse of process to commence and attempt to maintain it.
Further, it is long past the time when proceedings between the applicant and the respondent should have concluded. Any possibility of future benefit to the applicant by continuation is vastly offset by the reality of prejudice to the respondent.
For the reasons given above, the application is dismissed pursuant to section 32 of the ACAT Act.
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Senior Member G Lunney SC
| Date(s) of hearing: | 2 May 2022 |
| Applicant: | Mr Johnson, authorised representative |
| Respondent: | In person |
Key Legal Topics
Areas of Law
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Civil Litigation & Procedure
Legal Concepts
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Limitation Periods
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Abuse of Process
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Res Judicata
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