Giurina v Deak

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2018 00168

ERMANNO GIURINA	Applicant
v
MARIA DEAK AND OTHERS (according to the attached schedule)	Respondents

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April 2018 (further submissions, 26 June 2018)
DATE OF RULING:	27 July 2018
CASE MAY BE CITED AS:	Giurina v Deak & ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 409

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PRACTICE AND PROCEDURE – Application for stay until related proceeding determined – Supreme Court (General Civil Procedure) Rules 2015 r 9.12 – Re AWB Limited (No 2) [2009] VSC 70 – Application for summary judgment – Civil Procedure Act 2010 ss 62 and 63 – Legal Profession Uniform Law Application Act 2014 and Legal Profession Uniform Law s 10 – prohibition on unqualified people engaging in legal practice

OWNERS CORPORATIONS – Conduct of parties – standing to bring proceedings – ‘lot owner’ – Owners Corporation Act 2006 ss 3, 163, 165(1)(ba) and 167

VCAT – Leave to appeal VCAT order not allowing reinstatement – Victorian Civil and Administrative Tribunal Act1998 s 148 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in person
For the Respondents	Ms G S J Berlic with Mr R McGirr	Wisewould Mahony

HER HONOUR:

Mr Giurina seeks leave to appeal both interim and final orders made by the Victorian Civil and Administrative Tribunal (‘the Tribunal’). The respondents are an owners corporation, being Owners Corporation Plan No. 1579 (‘OC’), its corporate manager, being Strata Connect Pty Ltd (‘SC’), and the director of the managing company, being Ms Deak. It is not in dispute between the parties that for a period Mr Giurina was the manager of the OC. He does not own a property in the residential development applicable to the OC. Rather, his grandmother did. Mr Giurina is the co‑executor of her estate.

This ruling concerns applications by the respondents to have the proceeding struck out on the basis it is an abuse of process, or summarily dismissed. Alternatively they seek security for costs.

This ruling also concerns an application made by Mr Giurina. He seeks to stay this proceeding until determination of another proceeding in this Court being S CI 2017 04127 (‘the second Tribunal proceeding appeal’). That is also a proceeding brought by Mr Giurina seeking leave to appeal a decision of the Tribunal, being Tribunal proceeding OC 2688/2016 (‘the second Tribunal proceeding’). The second Tribunal proceeding is a different decision of the Tribunal to the one he seeks leave to appeal in this proceeding. However, both relate to his dispute concerning the OC. The parties agree that this proceeding and the second Tribunal proceeding appeal arise out of the same facts.

Summary

I will dismiss Mr Giurina’s application for a temporary stay of the proceeding until after determination of the second Tribunal proceeding appeal.

I will make orders summarily dismissing the proceeding. Given that, it is unnecessary to consider the applications for strike out on the basis of abuse of process or alternatively security for costs.

Background

The orders that Mr Giurina seeks leave to appeal in this proceeding are made in Tribunal proceeding OC 453/2014 (‘the third Tribunal proceeding’). I shall refer to this proceeding as ‘the third Tribunal proceeding appeal’.

There was an earlier dispute between Mr Giurina, the OC and others, being Tribunal proceeding OC 391/2012. I shall refer to this as ‘the first Tribunal proceeding’.

The first Tribunal proceeding was brought by the OC and lot owners against Mr Giurina. Orders were made in that proceeding on 1 May 2012.[1] They were as follows:
[1]Owners Corporation No 1579 v Giurina (Owners Corporation) [2012] VCAT 643. The orders and reasons are contained within Exhibit ‘EG-2’ to the affidavit of Mr Giurina sworn on 25 January 2018 (‘the Giurina 25 January 2018 affidavit’). That exhibit is voluminous. Within it, there is an affidavit of Maria Deak sworn 27 March 2014 in the second Tribunal proceeding (‘the Deak 27 March 2014 affidavit’). The orders are contained within Exhibit ‘MD-2’ to that affidavit.

1. The Tribunal declares that the management agreement between the Respondent and the First Applicant dated 12 December 2004 was terminated on 24 July 2011.

2. The Tribunal declares that in acting as manager, the Respondent –

(a) breached his duties to the First Applicant as trustee of the sum of $8,000.00 by mixing that trust money with his own funds;

(b) breached his duties under section 122(2) of the Owners Corporations Act 2006 by failing to account separately for the money held by him for the First Applicant;

(c) breached his duties under section 122(1)(c) of the Owners Corporations Act 2006 by failing to pay his contribution of $2,000.00 to the First Applicant despite requiring the other Lot owners to do so;

(d) breached his duties under section 122(1)(b) of the Owners Corporations Act 2006 by failing to disclose to the other Lot owners the Court proceedings issued against the First Applicant, and by settling those proceedings without obtaining approval from the Applicants.

3. The Tribunal declares that the Respondent breached paragraph 7 of the Order made 25 April 2012.

4. The Tribunal declares that the Respondent attempted to deceive the Tribunal within the meaning of section 78(1)(e) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’), by preparing and causing to be filed correspondence in April 2012 which purported to be the withdrawal of the proceeding by the Applicant.

5. The Respondent shall return to the secretary of the First Applicant, Maria Picone all records relating to the First Applicant and all funds of the First Applicant held or controlled by the Respondent.

6. The Respondent shall give to the secretary of the First Applicant, Marie Picone, all documents which are necessary to remove the Respondent as signatory to the ANZ Bank account BSB 013 270 Account number 582 169 534.

7. Liberty to apply.

8. The Applicants’ costs are reserved.

Mr Giurina sought leave in this Court to appeal the orders made in the first Tribunal proceeding. He failed to obtain leave at first instance: see Giurina v Owners Corporation No. 1579 and Ors.[2] Mr Giurina appealed against the orders made dismissing his application for leave to appeal. He was unsuccessful: see Giurina v Owners Corporation.[3] Mr Giurina was ordered to pay costs.[4] Mr Giurina sought to appeal the costs orders from the decision at first instance dismissing his appeal a second time. He was unsuccessful. His attempt to issue the summons was held to be irregular and an abuse of process.[5] Mr Giurina sought an extension of time to review the taxation of costs arising from those orders. He was unsuccessful.[6]
[2][2012] VSC 467. The decision is contained within Exhibit ‘MD-3’ to the Deak 27 March 2014 affidavit which is contained within Exhibit ‘EG-2’of the Giurina 25 January 2018 affidavit.
[3][2013] VSC 39. The decision is contained within Exhibit ‘MD-4’ to the Deak 27 March 2014 affidavit which is contained within Exhibit ‘EG-2’of the Giurina 25 January 2018 affidavit.
[4]Two orders made on 19 June 2013: contained within Exhibit ‘MD-5’ and ‘MD-6’ to the Deak 27 March 2014 affidavit which is contained within Exhibit ‘EG-2’of the Giurina 25 January 2018 affidavit.
[5]Orders made on 6 August 2013 (Garde J), contained in Exhibit ‘MD-7’ to the affidavit of Maria Deak sworn on 23 March 2014 in the first Tribunal proceeding appeal. This affidavit is contained within Exhibit ‘EG-2’ to the Giurina 25 January 2018 affidavit.
[6][2014] VSC 63. The decision is Exhibit ‘RMM-1’ to the affidavit of Robert Michael McGirr sworn 14 March 2018 (‘the McGirr 14 March 2018 affidavit’).

The second proceeding was commenced by the OC against Mr Giurina and his mother, Ms Licia Giurina, as co-executors of the estate of his late grandmother, Ms Irma Locher. The OC sought payment of outstanding fees, levies, interest and costs. Mr Giurina was unsuccessful in defending these proceedings. On 21 September 2017 the Tribunal ordered that Mr Giurina and his mother (as executors of the estate of Ms Locher) pay $11,161.72 plus interest and also pay the costs of the OC.[7]
[7]See: Owners Corporation RP001579 v Giurina (Owners Corporations) [2017] VCAT 1509, contained in Exhibit ‘EG-17’ to the Giurina 25 January 2018 affidavit.

As discussed above, Mr Giurina now seeks leave in this Court to appeal the second Tribunal proceeding. He sought to stay orders made in that proceeding in this Court by way of a summons filed on 24 November 2017 (in the second Tribunal proceeding appeal). Mr Giurina’s ex parte application for the stay was heard that day. He was unsuccessful in the stay application.[8]
[8]Orders made on 24 November 2017: contained in Exhibit ‘RMM-2’ to the McGirr 14 March 2018 affidavit.

Mr Giurina initiated the third Tribunal proceeding against the respondents in this proceeding. He sought an interlocutory injunction against SC and Ms Deak ‘preventing SC from involvement in all affairs and management of the owners’ corporation’ and other orders.[9] He was unsuccessful.[10] Paragraph 4 of the orders made on that date, being 27 March 2014, is as follows.
Upon the applicant [Mr Giurina] paying the fee that is appropriate to a claim (as this proceeding is) for non-monetary orders as well as a for a monetary order, the proceeding shall be listed for hearing on a date to be fixed by the principal registrar before any Member except Deputy President I. Lulham with a whole day being allowed for the hearing.
[9]Letter from Mr Giurina to the Tribunal dated 4 March 2013 [as there is a reference to March 2014 in the letter it appears the date is a typographical error]. The letter is contained in Exhibit ‘EG-1’ to the Giurina 25 January 2018 affidavit. The letter is also contained in Exhibit ‘EG-1’ to the affidavit of Mr Giurina sworn 27 January 2017 in respect of the third Tribunal proceeding (‘the Giurina 27 January 2017 affidavit’). That affidavit is contained within Exhibit ‘EG-7’ to the Giurina 25 January 2018 affidavit. See also orders made on 27 March 2014 in the third proceeding: Exhibit ’EG-4’ to the Giurina 25 January 2018 affidavit.
[10]See orders made on 27 March 2014 in the third proceeding: Exhibit ’EG-4’ to the Giurina 25 January 2018 affidavit.
Approximately one month later, Mr Giurina still had not paid the fee and another order was made (‘the 26 May 2014 order’).[11]
Unless the applicant pays the proper filing fee by 16 June 2014 the proceeding shall be struck out on 17 June 2014 with a right of reinstatement upon paying the fee.
[11]Exhibit ‘EG-5’ and ‘EG-6’ to the Giurina 25 January 2018 affidavit.
It is common ground between the parties that Mr Giurina did not pay the fee, and the matter was accordingly struck out. More than two and a half years later, Mr Giurina paid the fee. The Tribunal then set down a hearing on the question of whether he should be permitted to proceed. The orders made in the third Tribunal proceeding on 23 March 2017 (‘the 23 March 2017 orders’) follow:[12]
[12]Ibid, Exhibit ‘EG-8’.

1.By 13 April 2017 the applicant must file and serve a document which sets out clearly what orders he would be seeking, and against which persons, upon a hearing of this proceeding and any further affidavit upon which he seeks to rely.
2.There is fixed for determination at 9:30am on 17 May 2017 before any Member at 55 King Street Melbourne a hearing on the question of whether the applicant should be permitted a hearing for the seeking of any and which of those orders, including (if necessary) whether he should be authorised under s 165(1)(ba) to prosecute, on behalf of Owners Corporation Plan No 1579, a claim and any of which of those orders, with a whole day being allowed for the hearing.
3.The hearing on 17 May 2017 should, if possible, be before the same Member who hears proceeding number OC 2688/2016 which has been fixed for hearing on 8 May 2017.
4.For avoidance of any possible doubt, the hearing referred to in paragraph 2 of this order is not the final hearing of this proceeding.
5.Any affidavit on behalf of any of the respondents may be filed and served by 27 April 2017.
6.The applicants address for service is 49 Williams Road, Coburg North 3048 the Principal Registrar is directed to amend the register accordingly.
7.Costs of today are reserved.

The orders made in the third Tribunal proceeding on 21 December 2017 (‘the 21 December 2017 orders’) follow:[13]

1. The applicant’s application for reinstatement is dismissed.
2.By 29 January 2018, the respondents must send to the Tribunal and the applicant any application for costs in this proceeding, together with any supporting material in relation to liability for costs.
3.By 19 February 2018, the applicant must send to the Tribunal and the respondents any submissions and/or other material in reply.
4.Any costs applications is to be listed before me after 26 February 2018. Allow half a day.

[13]Ibid, Exhibit ‘EG-26’.

In the third Tribunal proceeding Mr Giurina sought, amongst other things, declarations that: he was the manager of the OC, or alternatively, if SC was the manager, it should have its appointment revoked; that Ms Deak and SC did not have authority to act for and on behalf of the OC; he was not indebted to the OC; and that the OC did not owe its solicitors (Wisewould Mahony) legal fees as it did not validly retain the firm.[14] As evident from the 21 December 2017 orders above, he was unsuccessful.[15]
[14]The Giurina 27 January 2017 affidavit (Exhibit ‘EG-7’ to the Giurina 25 January 2018 affidavit).
[15]See: Giurina v Deak (Owners Corporations) [2017] VCAT 2127. The orders and reasons in respect of the third Tribunal proceeding are contained in Exhibit ‘EG-26’ to the Giurina 25 January 2018 affidavit.

Mr Giurina’s originating motion in this proceeding seeks leave to appeal the 23 March 2017 orders and the 21 December 2017 orders of the third Tribunal proceeding.[16]
[16]Filed on 18 January 2018.

Prior to final determination of the third Tribunal proceeding, Mr Giurina sought to delay its determination until this Court had determined the second Tribunal proceeding appeal. He was unsuccessful in obtaining that delay.[17] He made a second application to delay the final determination of the third Tribunal proceeding. He was unsuccessful.[18]
[17]Orders made in the third Tribunal proceeding on 2 November 2017: contained in Exhibit ‘EG-22’ to the Giurina 25 January 2018 affidavit.
[18]Orders made in the third Tribunal proceeding on 5 December 2017: Ibid, Exhibit ‘EG-24’.

After determination of the third Tribunal proceeding, Mr Giurina then made a third stay application in the third Tribunal proceeding. He made an application to stay the orders made on 21 December 2017. This application was heard by the Tribunal on 23 February 2018. Mr Giurina was unsuccessful in obtaining the stay.[19]
[19]Orders made on 6 March 2018: contained in Exhibit ‘RMM-7’ to the McGirr 18 April 2018 affidavit.

Mr Giurina’s stay application in this proceeding is at least his fourth stay attempt in respect of the third Tribunal proceeding and matters arising from it.

The six grounds for relief in the originating motion in this proceeding are below.[20] The grounds of appeal[21] are identical.
[20]Originating motion filed on 18 January 2018.
[21]The draft notice of appeal is contained in Exhibit ‘EG-27’ to the Giurina 25 January 2018 affidavit.

1.The Tribunal erred in law when it made orders on 23 March 2017, fixing for determination a hearing on the question of whether the Applicant should be permitted a hearing for the seeking of any and which orders listed in the required document being the subject of order 1 of those orders, including (if necessary) whether the Applicant should be authorised under s 165(1)(ba) of the Owners Corporation Act 2006 (Vic) (‘the OCA’) to prosecute on behalf of Owners Corporation Plan No. 1579 (‘the OC’) a claim and any of the relevant orders, instead of fixing a date for the final hearing of the proceeding.
2.Without prejudice to Ground 1 the Tribunal erred in law by concluding that a number of the Applicant’s claims were an abuse of process because relevant findings made in the ‘fee proceeding’ being proceeding OC 2688/2016 represent the final determination of the relevant issues and where the Tribunal did not consider whether there was a real chance of success of appeal in relation to these relevant issues.
3.The Tribunal erred in law in concluding that there is no proper basis on which the proceeding should be reinstated because no order would be made under s 165(1)(ba) of the Owners Corporation Act 2006 (Vic) (‘the OCA’) authorising the Applicant to bring a proceeding on behalf of the OC when in fact the Applicant never made an application pursuant to s 165(1)(ba) and it was not necessary for him to rely on that provision.
4.Without prejudice to previous Grounds even if s 165(1)(ba) of the OCA were applicable, the Tribunal erred in law by considering as relevant the matters listed at paragraphs 53 to 56 of the reasons of 21 December 2017 and failing to consider the evidence which indicated that the First and Second Respondents had breached their legal duties as referred to at paragraphs 122 to 125 of the Applicant’s Outline of Submissions dated 15 December 2017 and paragraphs 42 of the Reasons of 21 December 2017 and failing to consider in this regard that the proceeding had a prospect of success or at least was not bound to fail and where the Applicant sought revocation of the appointment of the Second Respondent as Manager.
5.The Tribunal erred in law by failing to consider the evidence which indicated that the First and Second Respondents had breached their Code of Professional Conduct by failing to disclose the conflict of interest in arranging for Peter Calello to become the OC’s insurance broker (and also with another OC) and which put them in breach of s 122(1)(c) of the OCA regardless of what lot owners considered about this matter.
6.The Tribunal erred in law by failing to consider the benefit to the OC of the Applicant’s application and seeking of related orders and that the Applicant would seek his costs from the First and Second Respondents and not the OC being the Third Respondent.

The questions of law in the draft notice of appeal are the same as the grounds above, except in interrogatory form.[22]
[22]Ibid.

For convenience, I shall refer to the three respondents collectively as ‘the owners corporation’.

Turning now to the first issue.

Should the proceeding be stayed?

Mr Giurina made written and oral submissions in support of his stay application and also filed an affidavit that he swore on 17 April 2018.

The key submissions made by Mr Giurina are as follows.

First, that the application for stay is made under r 9.12(1) of the Supreme Court (General Civil Procedure) Rules 2015. He submits that rule is applicable because there are two proceedings that he has brought in this Court which raise the same factual issues and similar legal issues. Mr Giurina submits that what the Court decides in the second Tribunal proceeding appeal will have a bearing on his application for leave in this proceeding. He submits that if he succeeds in the other proceeding then the owners corporation’s defences of res judicata and issue estoppel will fall away.

Second, Mr Giurina submits that Camera v McBain,[23] is applicable. He refers to orders made on 14 February 2018 by a Judicial Registrar that the proceedings be heard consecutively. He said that he did not consent to the proceedings being heard consecutively or being heard together.
[23][1948] VLR 245.

Third, Mr Giurina submits that he cannot logistically manage this proceeding and the other proceeding being heard together. He submits that he will be prejudiced if they are heard together. He says that the proceedings should be split. Mr Giurina submits that the Court does not have the power to order proceedings be heard together.

Fourth, Mr Giurina says that the orders made on 14 February 2018 included an order that made it possible for him to bring directions in relation to the issue of the proceedings being heard together.

On the other hand, the owners corporation’s key submissions may be summarised as follows.

First, the orders made on 14 February 2018 are for the proceedings to be heard consecutively, not together. In response to Mr Giurina’s submissions concerning Cameron v McBain,[24] it stands for the principle that consolidation or orders that proceeding be tried together should not be made where it is likely to expose substantial risk to a party. There has been no order for consolidation here. Further, in response to Mr Giurina’s submissions on Buckleyv Herald & Weekly Times Pty Ltd,[25] each case must be decided on its own facts. That case does not stand for the proposition contended by Mr Giurina, namely that the Court does not have the power to make orders for consolidation or for matters to be listed and heard together.
[24]Ibid 248.
[25](2009) 24 VR 129.

Second, the purpose of Mr Giurina’s stay application is to effectively go behind the orders made on 14 February 2018 and have them overturned in respect of the order that the proceedings be heard consecutively.

Third, paragraph 2 of the 14 February 2018 orders concern directions relating to leave to appeal, not directions concerning the two proceedings being listed consecutively.

Fourth, even if Mr Giurina is successful in the other proceeding, it would remain an abuse of process to litigate the same matter in a different proceeding.

Analysis

Rule 9.12(1) provides the Court with the power to stay a proceeding until after the determination of another proceeding in certain circumstances:

9.12 Consolidation or trial together
(1) Where two or more proceedings are pending in the Court, and—
(a)some common question of law or fact arises in both or all of them;
(b)the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions; or
(c)for any other reason it is desirable to make an order under this Rule—

the Court may order the proceedings to be consolidated, or to be tried at the same time or one immediately after the other, or may order any of them to be stayed until after the determination of any other of them.

The current situation is that there are orders that this proceeding and the second Tribunal proceeding appeal be heard consecutively. Paragraphs 1 and 2 of orders made on 14 February 2018 provide:

1.The Applicant’s application for leave to appeal, leave to appeal out of time and, if leave is granted, the appeal of the decision of Senior Member Vassie on 23 March 2017, and the Applicant’s application for leave to appeal, and, if leave is granted, the appeal of the decision of Senior Member Dea on 21 December 2017 be listed to be heard consecutively with proceeding S CI 2017 04127 on 10 October 2018 with an estimate of two days.
2.The Applicant have leave to bring this application for directions before the Court.

For clarity, it must be categorically stated: the orders above are not orders for consolidation of the two proceedings or that they be heard together.

Clearly, r 9.12(1) provides specific power to the Court to order that certain proceedings be tried ‘one immediately after the other’. Further, types of proceedings to which the order applies are described in r 9.12(1) and that includes proceedings where there is some common question of law or fact that arises in both of them. The parties agree that common questions of fact arise in both of the proceedings.

If Mr Giurina’s stay application is successful, it would in effect overturn the 14 February 2018 orders that the two proceedings be heard consecutively. Mr Giurina raised these issues at the time the orders were made and was informed by the Judicial Registrar hearing the directions that he could raise them later. I do not think the fact that the orders were not appealed precludes consideration of this stay application.

The question is whether this proceeding should be temporarily stayed until the other proceeding has been determined.

The principles outlined below demonstrate that this question is to be decided by taking into account the overarching obligations in the Civil Procedure Act 2010 (‘CPA’), including what is in the interests of justice.

In Re AWB Limited (No 2),[26] Robson J dismissed an application for stay brought pursuant to r 9.12. ASIC had commenced proceedings against six senior officers of AWB Limited. Five of the officers applied for a stay. On account of the likelihood of criminal proceedings, the civil proceedings against those five officers were stayed. ASIC then applied to stay the proceeding against the remaining defendant, Mr Lindberg. ASIC submitted that the purpose of r 9.12 was to ‘promote efficiency and economy in the conduct of litigation and thereby to save public and private resources, time and cost’ and a stay would:
[26][2009] VSC 70.

(a)avoid re-litigation in the related proceedings of issues already determined by the court;
(b)avoid consistency in the administration of justice being undermined by the potential for inconsistent decisions and separate appeals on common issues;
(c) avoid wasting valuable court resources, and reduce the number and cost of interlocutory steps;
(d)allow discovery categories to be agreed between ASIC and all six defendants, and thus avoid the repetition of a lengthy and costly discovery exercise;
(e)avoid the substantial inconvenience to witnesses of having to give evidence and be cross-examined on multiple occasions;
(f)avoid the potential for substantial prejudice to be caused to the plaintiff's cases should overseas witnesses (who cannot be compelled to attend and give evidence) refuse travel repeatedly to Australia to give substantially the same evidence; and
(g)avoid significant waste of public monies in requiring many witnesses to travel from interstate for multiple hearings.[27]

[27]Ibid, [22] and [24].

Re AWB Limited (No 2)[28] was decided prior to the CPA, however it remains instructive for the principle that the interests of justice must be taken into account to determine an application for a temporary stay pursuant to r 9.12. After ‘giving full weight’ to all of the matters put by ASIC, and the prejudice suffered by Mr Lindberg through the potential delay in the proceeding, Robson J determined that ‘the interests of justice would not be served by a stay’. His Honour cited McMahon v Gould[29] as confirming the principle that ’the court has an extensive jurisdiction to stay proceedings but that the overriding consideration is what is required ‘in the interests of justice’.’
[28]Ibid.
[29](1982) 7 ACLR 202.

Interstate provisions analogous to r 9.12 were relevantly applied in Branir Pty Ltd v Wallco Pastoral Company Pty Ltd,[30] Labruyere v Parsons,[31] and Estate of Falco v Lamber (No 3).[32]
[30](2006) 18 NTLR 127.
[31][2011] NSWSC 770 (‘Labruyere’).
[32][2015] NSWSC 1343 (‘Estate of Falco’).

Labruyere[33] concerned two civil proceedings in the New South Wales Supreme Court in separate lists. The plaintiff sought orders to have one of the proceedings stayed on the basis of r 28.5 of the relevant rules:
[33][2011] NSWSC 770.

If several proceedings are pending in the court and it appears to the court:
(a) that they involve a common question, or
(b)that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or
(c)that for some other reason it is desirable to make an order under this rule,

the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them.

In Labruyere,[34] Schmidt J stated that the principal purpose of the rule was to ’to minimise costs and delay in proceedings before the Court. Potential prejudice flowing from any order made under the Rule, must also be considered’.[35] Further, the Civil Procedure Act 2005 (NSW) (‘CPA NSW’) was applicable:[36]
[34]Ibid.
[35]Ibid [10].
[36]Ibid [15]-[16].

In all of these circumstances, it seemed to me that to order a stay of these proceedings, pending determination of the Equity proceedings, was consistent with the requirements of the Civil Procedure Act 2005, which in s 56 provides that the overriding purpose of the Act and Rules is to facilitate the just, quick and cheap resolution of the real issues in the proceedings and in s 57 that:
‘57 Objects of case management
(1)For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:

(a)       the just determination of the proceedings,
(b)       the efficient disposal of the business of the court,
(c)       the efficient use of available judicial and administrative resources,
(d)the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
(2)This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).’

While s 59 emphasises the elimination of delay, in the circumstances here arising, I was satisfied that justice could not permit elimination of delay to be achieved at the expense of having the cause of the collapse of the tunnel litigated twice in separate proceedings before this Court, particularly given that that the issue also has to be determined in the prosecution before the Industrial Court.

Estate of Falco[37] concerned a number of applications stemming from probate proceedings, one against a solicitor. Kunc J accepted that the proceeding against the solicitor should be stayed, based upon ‘considerations of proportionality and the overriding requirement under s 56 of the CPA NSW to exercise the power to stay in a way which achieves the overriding purpose to ensure the just, quick and cheap resolution of the real issues in dispute’.[38]
[37][2015] NSWSC 1343.
[38]Ibid [199].

In National Australia Bank v Charlton[39] the defendant sought a stay of one of two civil proceedings in the New South Wales Supreme Court, in circumstances where orders were already made that the proceedings would be heard together. In considering the stay application Walton J held:

First, NAB is correct to submit that the debt and possession proceedings and judicial review proceedings are both listed for hearing in early March 2018 and that, even at the end of November 2017 (when the notice of motion was heard), it was far too late to seek that one proceeding be heard and determined before the other...
Secondly, on 2 June 2016 Schmidt J ordered that the debt and possession proceedings and the judicial review proceedings be heard together where evidence in one matter should be evidence in the other. In order to set aside this order, it is incumbent upon Ms Charlton to establish that there has been a material change of circumstances: Neumann Contractors Pty Ltd v Wyong Shire Council [citation] ... I do not consider that Ms Charlton has demonstrated such a change in circumstances.
Thirdly, and no doubt reflected in the orders made by Schmidt J, it is evident that the debt and possession proceedings and judicial review proceedings are closely linked ... As a matter of time, cost and efficiency the proceedings should be heard together, particularly as the same witnesses are likely to be called in both proceedings.
Fourthly, it is unlikely there would be saving of time or cost if the judicial review proceedings were heard and determined before the debt and possession proceedings ... Such an approach sits ill with the requirements of the Civil Procedure Act [NSW] (to make procedural orders in accordance with the dictates of justice, having regard to ss 56 and 57 of that Act.[40]

[39][2018] NSWSC 157.

[40]Ibid [124]-[128].

For completeness, I observe that in addition to its inherent power to stay a proceeding, the Court has powers under s 30 of the Supreme Court Act 1986. Robson J referred to these powers in Re Australian Property Custodian Holdings Limited (in liq) (No 2):[41]

The Court has inherent power to stay proceedings in the interests of justice (either on its own motion or on the motion of a party), which power is recognised in s 30 of the Supreme Court Act 1986 (Vic). The decision whether or not to grant a stay of proceedings is a matter of judicial discretion.

[41][2012] VSC 576 [19].

The inherent jurisdiction of the Court was relied upon in a recent application for a stay in Amcor Ltd v Barnes (Ruling No 1).[42] In that case the plaintiff sought a stay of a counterclaim that had previously been adjourned based on the inherent jurisdiction of the Court supported by the CPA. Sloss J reasoned that the proposed procedure was ‘one that could be ordered or directed by a Court, in its discretion, when seeking to ‘further the overarching purpose’ by reference to the objects set out in s 9 of the CPA’. In approaching the summons, Sloss J rejected a submission that the circumstances were similar to applications for a stay of judgment pending appeal. Rather:

In my view that task is really one of determining how, consistently with the CPA, the Court’s powers can be exercised in a way that is likely to further the overarching purpose of that Act and facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute between the parties.[43]

[42][2018] VSC 21.

[43]Ibid [51].

Turning now to the application of these principles.

I do not consider it would be consistent with the overarching purpose of the CPA, namely to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute, to allow the application for a temporary stay. Having elected to bring both proceedings, I do not consider that Mr Giurina’s assertion that he is unable to logistically manage both proceedings to be the basis of a stay. This is particularly the case in circumstances where the proceedings are not to be heard together but rather to be heard consecutively.

As to Mr Giurina’s contention that if he succeeds in the second Tribunal proceeding appeal then the owners corporation defences of res judicata and issue estoppel fall away: that is simply an assertion by him at this point in time. It would not be in the interests of justice to order a stay on the basis that one party considers it is likely to succeed in all or part of its claim. Those matters have yet to be ventilated and determined.

In conclusion, it is not in the interests of justice to temporarily stay this proceeding until the second Tribunal proceeding appeal is determined. Rather, it would be just, efficient, timely and cost-effective to hear the proceedings consecutively given the overlapping issues. However, given that I will make orders for summary dismissal, this is a moot point.

Given the finding above, I have not considered whether or not this stay application, being Mr Giurina’s fourth stay application is itself an abuse of process.

Should the proceeding be summarily dismissed?

Sections 62 and 63 of the CPA provide:

62       Defendant may apply for summary judgment in proceeding
A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.
63       Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a)       on the application of a plaintiff in a civil proceeding;
(b)       on the application of a defendant in a civil proceeding;
(c)on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.

The Court of Appeal outlined the following tests for summary judgment in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd:[44]

…
a)the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[45]

[44](2013) 42 VR 27.

[45]Ibid 40 [35].

In this proceeding, Mr Giurina seeks leave to appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘Tribunal Act’). Although it has since been amended, at the time the proceeding in this Court was instituted, s 148(1) provided that ‘a party may appeal on a question of law from an order of the Tribunal’ with the leave of the Court. Section 3 of the Tribunal Act provides relevant definitions. ‘Order’ is defined to include an ‘interim order’. In turn, an ‘interim order’ is defined to include ‘an order of an interim or interlocutory nature’.

I shall now deal with each ground of appeal in turn. Rather than set out each ground again in full, it is summarised.

Ground 1:Tribunal erred in the 23 March 2017 orders listing hearing on question of whether Mr Giurina could have a final hearing, rather than listing final hearing.

Owners corporation submissions

The owners corporation submits that the effect of the 23 March 2017 orders was that the Tribunal would determine whether the proceeding should be reinstated. These orders were appropriate given that it had been struck out nearly three years previously and in circumstances where separate proceedings were being litigated between the parties in the Tribunal concerning the same issues and allegations. The Tribunal has a wide discretion as to how it conducts its own proceedings: see for instance Tribunal Act ss 80 and 98.

The owners corporation submits that the application for leave to appeal the 23 March 2017 orders is made out of time. It says that Mr Giurina has misconstrued the statement of Lansdowne AsJ in the first Tribunal proceeding appeal that it may be permissible for the aggrieved party to await the final order before appeal as ‘[t]he effect of the interlocutory order may be overtaken by the final order’.[46] In that proceeding, Mr Giurina provided an explanation for the delay, being that he was awaiting receipt of an audio disc of the proceedings. Here, there is no explanation for being out of time, the entire application is without merit and there is no real prospect of Mr Giurina mounting an argument as to legal error.
[46]First Tribunal proceeding appeal [2012] VSC 467 [112].

The owners corporation submits that it would be futile to give leave to appeal on this ground because of the findings ultimately made in that proceeding (the third Tribunal proceeding).

Mr Giurina’s submissions

Mr Giurina says that because of personal matters he could not proceed with the proceeding and the whole proceeding was then struck out. He says that striking out a proceeding is just taking it out of a list, not terminating the proceeding. He had the right, pursuant to earlier orders of the Tribunal made on 27 March 2014 to have the proceeding sent to final hearing on payment of the appropriate fee. Those orders did not require him to apply for reinstatement. So, when he paid the fee in 2017, he had a right to have the matter listed for a final hearing.

Mr Giurina says that he did not appeal the 23 March 2017 orders because it would be futile if he was successful in obtaining the orders he sought at the hearing for reinstatement. Only once they were made, did he file his application for leave.

Mr Giurina relies on the second Tribunal proceeding appeal as authority that there is a discretion to allow an extension of time where the ground for appeal has a valid basis. Once he complied with the condition of paying the applicable fee, then the discretion in ss 80 and 98 of the Tribunal Act was not applicable.

Analysis

Mr Giurina has no real prospect of success in respect of Ground 1.

The Tribunal has discretion as to procedural matters. Section 80(1) provides the ‘Tribunal may give directions at any time and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding’.

Section 98(1) provides the Tribunal is bound by the rules of natural justice and provides, amongst other things, it ‘must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit’. The Tribunal ‘is intended to be a forum for speedy and inexpensive resolution’.[47]
[47]Director of Housing v Sudi (2011) 33 VR 559.

I reject Mr Giurina’s submissions that striking out the proceeding was simply removing it from a list and that he had a right to have it reinstated upon paying the fee. The Tribunal has the power to manage its own proceedings and make directions at any time. It was entirely appropriate and consistent with the purpose of the Tribunal to conduct a hearing on whether or not this proceeding should be reinstated. It was within the Tribunal’s powers to make the orders it did. There is no real prospect of Mr Giurina succeeding in his appeal of the 23 March 2017 orders.

Finally, s 148(2) of the Tribunal provides that applications for leave must be made within 28 days after the date of order. Mr Giurina is out of time in respect of his application for leave to appeal the 23 March 2017 orders.

Mr Giurina is a self-described ‘Australian Lawyer’.[48] He was once a solicitor although he no longer holds a practising certificate. On his own material, and as a person with a law degree, he made an election not to appeal the 23 March 2017 orders but to wait until the outcome of the hearing. He did so in full knowledge of the time limit for appeal. He is not assisted by the first Tribunal proceeding appeal decision that he relies upon because each application for leave to appeal is determined with reference to its own facts. Relevant factors include the length of, and reason for delay, whether there is an arguable case, and the extent of any prejudice to the respondents if granted.[49]
[48]As written by him on the appearance sheet in this proceeding and asserted by him in Court when questioned about this.
[49]Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, r 4.05(2) permits applications for extension of time; relevant principles on extension of time are well-established. See, for instance: Kuek v Devflan [2012] VSC 571 [24]-[26].

Finally, the 21 December 2017 orders subsumed the 23 March 2017 orders. It would accordingly be futile to give leave to appeal the 23 March 2017 orders. Given that, and that there is no real prospect of the appeal against the orders succeeding, there is no real prospect of Mr Giurina’s application for an extension of time to appeal the 23 March 2017 orders succeeding.

I turn now to grounds 2-6 of Mr Giurina’s draft notice of appeal. They are directed at the 21 December 2017 orders.

Ground 2:Tribunal erred in its conclusion that Mr Giurina’s claims were an abuse of process because the second proceeding finally determined the relevant issues and Tribunal did not consider whether there was a real chance of success of appeal in relation to those issues.

Owners corporation submissions

The central submissions made by the owners corporation follow.

(a) The issue of the valid appointment of the SC as manager has already been determined. Yet in Mr Giurina’s affidavit sworn 12 April 2017 for the third Tribunal proceeding, he deposes that his substantive application seeks ‘the return of moneys to the [OC] paid to third parties on behalf of the OC by SC because in my belief the OC had not authorised such payments and the return of the monies to the OC which were paid to Strata Connect for management fees because in my belief Strata Connect was never validly appointed manager.’[50]
[50]Giurina 12 April 2017 affidavit [13], contained in Exhibit ‘EG-10’ to the Giurina 25 January 2018 affidavit.

Paragraphs 1 to 8 of the originating motion in this proceeding return to the central issue of whether SC was validly appointed. The issue of the validly appointed manager was determined in the first Tribunal proceeding and those findings are undisturbed.[51] The orders made in the first Tribunal proceeding were upheld on appeal to this Court. The issue was also considered in the third Tribunal proceeding. In the latter proceeding, the Tribunal determined it would be an abuse of process to consider and make a finding as to the declarations that Mr Giurina was the manager and related issues and claims.[52]
[51]First Tribunal proceeding reasons [2012] VCAT 643 [83]-[85].
[52]Third Tribunal proceeding reasons [2017] VCAT 2127 [41].

(b) The issues were raised by way of Mr Giurina’s defence in the second Tribunal proceeding and the claims made in this proceeding are substantially the same. They concern Mr Giurina’s allegations: that he is the OC manager and that SC is not appointed as a manager; concerning the status of business conducted at meetings convened since 2012; that SC and Ms Deak are not and have never been authorised to act for the OC; concerning the settlement of a building debt and order for repayment sought from SC and Ms Deak; relating to their repayment of management fees, the return of documents and the removal of a sign; and that the Tribunal investigate or refer SC and Ms Deak in relation to insurance brokerage arrangements.

(c) The majority of the issues raised in this proceeding were also raised in the first and second Tribunal proceedings. Given the conduct predates both proceedings and the extent of overlap between the issues raised, it was unreasonable for Mr Giurina not to raise them as matters of counterclaim in the second Tribunal proceeding, without explanation. This is a case of abuse of process by reason of Anshun estoppel and where the Court ought to exercise its discretion in favour of the summary remedy.

(d) As to the new matters that Mr Giurina says are raised, the owners corporation say they have in fact already been dealt with. In relation to the appointment of a new insurance firm, this was dealt with in the second Tribunal proceeding.[53] The engagement of Wisewould Mahony as solicitors and their fees have been litigated and dealt with by this Court on several occasions.[54] These issues, and the issue of SC’s conduct in authorising a bankruptcy notice concerning Mr Giurina all predate the second Tribunal proceeding and are closely connected with the allegations he made in that proceeding.

[53][2017] VCAT 1509 [158]-[165].

[54][2014] VSC 63 [13],[16]. Mr Giurina sought to issue two summons in respect of this issue which were both rejected [17], [19].

The owners corporation also refers to the general conduct of Mr Giurina in this proceeding and related proceedings. The owners corporation submits his conduct brings the administration of justice into disrepute. The entire proceeding is oppressive to the owners corporation.

The owners corporation says that Mr Giurina’s conduct should be borne into account and is relevant as his attempts to enforce his purported claims are a breach of his obligations under the CPA and the Court is entitled to curtail them in the interests of the administration of justice.[55]
[55]Kuek v Devflan Pty Ltd [2012] VSC 571 [79].

The specific conduct by Mr Giurina to which reference is made by the owners corporation is the following:

(a) findings made on 1 May 2012 in the first Tribunal proceeding that Mr Giurina had attempted to deceive the Tribunal within the meaning of s 78(1)(e) of the Tribunal Act;

(b) comments made by McMillan J in refusing leave to appeal the decision of Lansdowne AsJ (in her consideration of an appeal of the first Tribunal proceeding) that the pursuit of an appeal by Mr Giurina would have ultimately been pointless;[56]
[56][2013] VSC 39 [49].

(c) findings in the second Tribunal proceeding as to Mr Giurina purporting to act as the solicitor for the OC and seeking payment for services as a solicitor in circumstances where he did not hold an appropriate practising certificate at the relevant time;[57]
[57]Second Tribunal proceeding reasons [2017] VCAT 1509 [208]-[209].

(d) finding by Wood AsJ in this Court on 27 February 2017, in dismissing an application for an extension of time to review Cost Registrar Conidi’s orders made on 19 June 2013 when his Honour stated:

It is clear that the fruitless Court actions initiated by the respondent have caused additional delay and expense in the finalisation of this dispute.[58]

(e) persistent failure and refusal to comply with orders and pay costs orders made in various proceedings, and which total $61,085.82;[59] and

(f) a breach of Mr Giurina’s obligations as manager and the fact he is the subject of criminal charges of theft and making a false document in relation to his dealings with the OC (still before the courts).[60]

[58][2014] VSC 63 [33].

[59]McGirr 14 March 2018 affidavit [49].

[60]McGirr 14 March 2018 affidavit [47]; Giurina v Deak (Owners Corporations) [2017] VCAT 2127, [53].

The owners corporation says that the alleged failure to consider whether there was a real chance of success in the second Tribunal proceeding appeal is not a factor that the Tribunal was bound to take into account.

The owners corporation made the following submissions in respect of this ground, and also grounds 4-6. It is convenient to recite them here.

The question of taking matters into account, or failing to take into account particular matters or evidence, will only be an error of law if the Tribunal failed to take into account a matter that it was bound to take into account, or took into account an irrelevant consideration, or if the exercise of its discretion was manifestly unreasonable.[61] Where the relevant statutory provision does not oblige or forbid the Tribunal to take a particular matter or thing into account then no error of law arises regardless of whether or not the matter is considered.[62]
[61]Bell Corp Victoria Pty Ltd v Stephenson (2003) 20 VAR 280.
[62]Sinclair v Tripodis Constructions Pty Ltd [2013] VSC 722 [21].

Further, s 167 of the Owners Corporation Act 2006 (‘the OC Act’) requires the Tribunal to consider certain matters, including the conduct of the parties; an act or omission or proposed act or omission by a party; and any other matter the Tribunal thinks relevant.

Mr Giurina’s submissions

Mr Giurina submits that res judicata and abuse of process may not apply when matters are on appeal.

Mr Giurina submits that res judicata and abuse of process do not apply to evidentiary facts as distinct from ultimate facts. In respect of the latter point, Mr Giurina refers to Dixon J’s statement in Blair v Curran:[63]

Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.

[63](1939) 62 CLR 464, 532-33.

Relying upon this, Mr Giurina says that it is arguable that the findings and conclusions on matters in the second Tribunal proceeding were findings only of evidentiary facts and that does not preclude them from being litigated again. Further, three of the matters were not litigated previously: SC’s dealing with authorising the bankruptcy notice upon him, the appointment of the insurance broker, and the appointment of Wisewould Mahony Lawyers.

Analysis

Mr Giurina has no real prospect of success in respect of Ground 2.

It must be borne in the mind that Mr Giurina seeks to appeal the order dismissing his application for reinstatement. The Tribunal identified the relevant law as follows:[64]

The power to reinstate a proceeding falls within the power to make orders and directions under section 80 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). The Tribunal has an implied power to reinstate a proceeding that has been struck out. The exercise of that power is discretionary. The following are factors which are relevant to the exercise of the discretion:
The merits of the case and whether the complainant has any real chance of success;
The length of any delay in applying for reinstatement;
Whether there was an acceptable explanation for any delay; and
The possible prejudice to the respondent.

[64]Third Tribunal proceeding reasons [2017] VCAT 2127 [19].

The Tribunal’s summary of the applicable law was not in dispute between the parties.

I disagree with Mr Giurina’s submission that the Tribunal could not make findings of abuse of process or res judicata while the second Tribunal proceeding was under appeal. Mr Giurina did not identify any requirement on the Tribunal to delay its determination. In its management of a proceeding, whether the Tribunal takes into account that a different proceeding is under appeal is a matter of discretion. In this case, Mr Giurina had already made an unsuccessful stay application to delay the determination of the proceeding, as discussed above.

Nor do I agree with Mr Giurina that Blair v Curran is applicable. The findings relied upon by the Tribunal to conclude there was an abuse of process were not simply steps in a process of reasoning in an earlier proceeding. Rather, they were substantive findings.[65]
[65]Ibid, see for instance: [57],[58],[69],[72],[73],[79],[84].

Turning now to the matters that Mr Giurina says were not already litigated or that were not the subject of ultimate findings. I do not consider that the Tribunal was required to take any of the issues into account because, as discussed later, the Tribunal concluded no order would be made authorising Mr Giurina to bring a proceeding on behalf of the OC to prosecute the claims.

Ground 3:Tribunal erred in conclusion there was no proper basis to reinstate the proceeding on the basis of s 165(1)(ba) of the Owners Corporation Act 2006 when Mr Giurina’s application not made on that basis and unnecessary for him to rely on it.

Owners Corporation submissions

The owners corporation submits that this ground relates to the Tribunal’s finding that orders would not be made under s 165(1)(ba) of the OC Act. It says that the Tribunal correctly considered that a lot owner must apply to bring the proceeding on behalf of the OC pursuant to that section. It says that the effect of s 163(1A) and the accompanying note is that the rule in Foss v Harbottle[66] is not a bar to a lot owner commencing proceedings in their own name to claim redress for a wrong done and / or to enforce a right of an owner’s corporation provided that the proceeding is commenced on behalf of the owner’s corporation. Only the OC has a cause of action founded upon an alleged termination of the management contract: Grima v Quantum United Management Pty Ltd.[67]
[66](1843) 67 ER 189.
[67][2016] VCAT 1960 [5].

Further, the owners corporation says that an order under s 165(1)(ba) of the OC Act is not an automatic right for a lot owner; in the absence of a special resolution of the OC to authorise it to bring the proceeding under s 18(1), a lot owner must apply under s 165(1)(ba) of the OC Act. The Tribunal must be persuaded the order ought be made.[68]
[68]Ibid [18].

The first Tribunal proceeding concerned the issue of whether the lot owners had standing to sue for breaches of Mr Giurina’s duty as manager under s 122 of the OC Act. The owners corporation says this is a different issue. The crux of this issue is Mr Giurina’s dispute with the termination of his appointment as manager of the OC and the appointment of SC as the manager.

The owners corporation says that Mr Giurina brought the proceeding as a ‘lot owner’ under the OC Act. However, he has no standing to do so pursuant to s 163(1)(b) of the OC Act.[69] He is not a ‘lot owner’ within the meaning of that Act. The relevant property remains in the name of his late grandmother, Ms Locher. The beneficiary is his mother, Ms Giurina. Mr Giurina is not entitled to become the registered proprietor in his personal capacity as he is not the beneficiary under the will. ‘Owner’ in s 3 of the OC Act has the same meaning as s 3 of the Subdivision Act 1988. That latter Act requires the person to have the power to convey an estate in fee simple in the land and Mr Giurina does not have the power to convey any interest in the property. Further, Mr Giurina now asserts that he has standing to bring the proceedings as a former manager of the OC. That was not the basis he brought the third Tribunal proceeding and it is not now open for him to change the basis.

Mr Giurina’s submissions

[69]Further Submissions on behalf of the Respondents filed on 26 June 2018.

Mr Giurina submits that this ground challenges the Tribunal’s conclusion at paragraph 27 of the Reasons that there is no proper basis on which the proceeding should be reinstated as no order would be made under s 165(1)(ba) of the OC Act.

Mr Giurina says that he brought the third Tribunal proceeding as a ‘lot owner’, a former manager of the OC, and a former occupier of the property. He says that under s 3 of the OC Act, ‘owner’ has the same meaning as the Subdivision Act 1988, and that in layman’s terms it means a person who is able to sell the land. Mr Giurina refers to ss 13 and 14 of the Administration and Probate Act. He says that pursuant to a grant of probate in relation to the estate of Ms Locher, the registered proprietor of the property, he is the co-executor of her estate. He says that he has the power to sell the applicable land as the co-executor, and can act severally as the co-executor. He says that as a co-executor, he has the power to effect a sale of the land without the consent of the other co-executor. Mr Giurina says this means he can sell the land without the consent of his co-executor, being Ms Giurina (his mother). Mr Giurina says that he therefore is a ‘lot owner’. He says he had standing as a lot owner to bring the proceeding under s 163(1)(b) of the OC Act and to seek leave to appeal pursuant to s 148 of the Tribunal Act.

Further, Mr Giurina says that he had standing to bring the third Tribunal proceeding as a former manager of the OC Act.

Finally, Mr Giurina says that he has standing under s 163(1)(d) of the OC Act as an occupier of the property. He says it is unnecessary that a person reside at the property or occupy it for any specified period of time.

Mr Giurina submits he is entitled to apply for relief pursuant to ss 162 and 163(1)(a) and (b) of the OC Act as a lot owner and former manager, and thus does not need an order under s 163(1)(ba) of the OC Act. Mr Giurina says the findings in the first Tribunal proceeding relied upon those sections of the Act to conclude that individual lot owners could litigate against him for breaches of duty as manager.[70] Mr Giurina says that he is entitled to litigate this proceeding as of right against SC and Ms Deak for breaches of duty as manager and it is not necessary for him to rely on s 165(1)(ba) or seek or gain permission from the Tribunal to do so. He is owed a duty as a lot owner pursuant to s 122 of the OC Act.
[70]First Tribunal proceeding reasons [2012] VCAT 643 [63]-[72].

Mr Giurina says that when he commenced the third proceeding, he was not seeking to sue on behalf of the OC but rather as a lot owner and former manager and therefore it was unnecessary for the Tribunal to consider whether it would authorise him to do so under s 165(1)(ba) of the OC Act.

Analysis

Mr Giurina has no real prospect of success in respect of Ground 3.

The relief sought by Mr Giurina included declarations that he was the manager of the OC, or alternatively, if SC was the manager, it should have its appointment revoked. Indeed, his application letter seeking an injunction in the proceeding states:[71]

I make this application on the basis of the following matters.
I have been appointed as manager of the Owners Corporation 1579 … I wish to implement the resolutions of 19th January 2014 which are contained at Attachment 6 of my Affidavit in Support and to take action against the unauthorized conduct of Ms Deak and other parties which have been to the detriment of the OC. I wish to take such action without meddling by Ms Deak or Strata-Connect.

[71]Above n 9.

In the third Tribunal proceeding, findings were made that Mr Giurina sought a special resolution to deal with the management of the OC at the time he convened the SGM in January 2014 and none of the other lot owners attended, but he passed the special resolution relying on an interim resolution passed at the meeting to bring the proceeding. The Tribunal found he had no power to convene the SGM and so none of the resolutions passed could be relied upon.[72] These are factual findings and were open for the Tribunal to make.
[72]Third Tribunal proceeding reasons [2017] VCAT 2127 [47].

Section 165(1)(ba) of the Owners Corporations Act 2006 provides:

In determining an owners corporation dispute, [the Tribunal] may make any order it considers fair including … an order authorising a lot owner to institute, prosecute, defend or discontinue specified proceedings on behalf of the owners corporation.

In paragraph 27 of the reasons in the third Tribunal proceeding, it is concluded that:

As to any new or separate matters, I have concluded no order would be made under s 165(1)(ba) of the Owners Corporations Act 2006 (Vic) (OC Act) authorising Mr Giurina to bring a proceeding on behalf of the OC to prosecute them and so there is no proper basis on which this proceeding should be reinstated.

The Tribunal reasons also provide the following:[73]
[73]Ibid [45]-[46].

Section 165(1)(ba) may be relied on where the relevant owners corporation has not passed the required special resolution to commence a proceeding and a lot owner wishes to do so in the owners corporation’s name.
In Grimer v Quantum United Management Pty Ltd,[74] Senior Member Vassie listed the following as matters which may be relevant to the question:
·Why no special resolution was obtained;
·The degree of support amongst the other lot owners;
·What benefit to the OC would be if the orders sought were made; and
·Whether the proceeding has a prospect of success or is at least not bound to fail.

[74][2016] VCAT 1960.

The Tribunal then went on to make various findings concerning these matters.

The Tribunal identified that s 165(1)(ba) of the OC Act may be applicable and then made factual findings that it was not. It was open to the Tribunal to make those factual findings. Indeed, it was prudent to do so given the relief sought by Mr Giurina. Mr Giurina has not established the Tribunal erred in law.

It is useful at this point to address a more fundamental issue: standing. Mr Giurina brought the third Tribunal proceeding on the basis he was a ‘lot owner’ and also asserted he was a manager of the OC.[75] As already discussed, he was found not to be the current manager of the OC. Accordingly, he did not have standing on that basis. In further submissions in this proceeding, Mr Giurina asserts he brought the Tribunal proceeding as a former manager and an occupier of the property.[76] He had no leave to make those submissions. Further, his application documents plainly indicate that was not the basis he brought the third Tribunal proceeding. This leaves his assertion that he brought the proceeding as a ‘lot owner’. His standing as a lot owner was raised but not pressed during the third Tribunal proceeding. It is now necessary to address it given the impact on any potential relief.
[75]See: Letter from Mr Giurina to the Tribunal dated 4 March 2013 [as there is a reference to March 2014 in the letter it appears the date is a typographical error] and affidavit in support sworn by Mr Giurina on 4 March 2014. They are contained in Exhibit ‘EG-1’ to the Giurina 25 January 2018 affidavit.
[76]Further Submissions on the Issue of the Standing of the Applicant to bring this Proceeding dated 26 June 2018 by email correspondence to the Court.

Mr Giurina did not have standing to bring the third Tribunal proceeding as a ‘lot owner’ for the following reasons.

By way of background, there is evidence of a grant of probate in respect of Ms Locher’s estate.[77] The grant of probate names Mr Giurina and Ms Giurina as executors. Ms Locher’s name remains on the title as the registered proprietor of land subject to the OC (‘Lot 4’).[78]
[77]Exhibit ‘RMM-10’ to the affidavit of Rodney Michael McGirr, sworn on 26 June 2018 (‘the McGirr 26 June 2018 affidavit’).
[78]Unit 4 on Strata Plan 001579, Certificate of Title Volume 08809 Folio 040: see Exhibit ‘RMM-11’ to the McGirr 26 June 2018 affidavit.

However, the third Tribunal proceeding is brought in Mr Giurina’s own name. That is, the applicant is Mr Giurina himself, not Mr Giurina (as executor to the Estate of Ms Locher).

Further, Mr Giurina is not the registered proprietor of Lot 4. Oddly, it remains in the name of the deceased although she died in 2003, 15 years ago.[79] Ms Giurina is the beneficiary of the property. Mr Giurina, in his personal capacity, has no power to convey any estate in fee simple in the property to a third party. He may only do so as an executor.[80] Without the power to convey property, he does not fall within the definition of a ‘lot owner’, as defined in s 3 of the OC Act. This is because the effect of the s 3 definition of ‘owner’ is that an ‘owner’ must fall within the definition in s 3 of the Subdivision Act 1988. That essentially requires a power to convey or transfer the land.
[79]Ibid.
[80]See for instance, s 44 Administration and Probate Act 1958.

The finding that Mr Giurina did not have standing to bring the third Tribunal proceeding as a ‘lot owner’, and that the Tribunal correctly held that he was not a manager of the OC, has the consequence that none of the grounds of appeal can succeed because it would be futile to grant leave to appeal.

For completeness, I add the following. I have given Mr Giurina the benefit of the assumption that he is the co-executor of the estate of Ms Locher. However, I make no finding that he continues to be. Ms Locher died in 2003.

Ground 4:Tribunal erred in consideration of matters in [53]-[56] of Reasons as relevant matters; failure to consider evidence in Mr Giurina’s outline of submissions [122]-[125] and Reasons [52] that Ms Deak and Strata Connect had breached their legal duties. In that regard failure to consider that the proceeding had prospect of success or at least bound not to fail where Mr Giurina sought revocation of the appointment of Strata Connect as the manager.

Owners corporation submissions

The owners corporation submits that by considering the matters at paragraphs 53-55 of the reasons, the Tribunal complied with its obligation to consider matters set out in s 167 of the OC Act. Section 167 gives the Tribunal a wide discretion to consider what is relevant.

Mr Giurina’s submissions

Mr Giurina says the arguable error of law is that the Tribunal took irrelevant considerations into account in paragraphs 53-55 of its reasons. He says that even if s 165(1)(ba) of the OC Act is applicable, the issues do not come within the issues of relevance listed in Grima v Quantum United Management.[81] He says they concerned matters unrelated to the core issue of the proceeding, being the conduct of SC and Ms Deak. Mr Giurina says that the Tribunal ‘is virtually saying’ he is not a fit and proper person to be authorised to continue the proceeding on behalf of the OC when s 165(1)(ba) imposes no such condition and only refers to the condition of the person being a ‘lot owner’.
[81][2016] VCAT 1960 [18].

Mr Giurina says that the OC Act is the enabling Act which gives the Tribunal jurisdiction in s 162. The jurisdiction sets the boundaries of what is relevant or not. The Tribunal cannot go outside it.[82] The findings in other cases are outside the jurisdiction.
[82]Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (2008) 19 VR 422.

Mr Giurina says that he was granted his claim ‘for a reconstitution of the Tribunal prior to my stay application’ as the matters referred to at paragraphs 53-55 amounted to perceived bias. He refers to paragraph 49 of his affidavit sworn on 4 April 2018. In that affidavit he deposes that he made an oral submission that the factors amounted to perceived bias of the Tribunal member. He says his application was granted and refers to the orders made on 23 February 2018 reconstituting the Tribunal for the purposes of a stay hearing.

Analysis

The Tribunal member stated that arguably the proceeding could be reinstated pursuant to s 165(1)(ba) of the OC Act to consider whether Mr Giurina ought be authorised to apply to the Tribunal for an order revoking SC’s current appointment.[83] The Tribunal then referred to and considered the factors in Grima v Quantum United Management Pty Ltd.[84]
[83]Third Tribunal proceeding reasons [2017] VCAT 2127 [44], [45].
[84]Ibid [46] and following.

The Tribunal listed the following matters as being relevant in paragraphs 53-55 of its reasons.

I accept the following matters relied on by the respondents are relevant:
·DP Lulham found Mr Giurina had breached his obligations as manager in respect of $8,000 collected to pay a building debt (discussed further below);
·Mr Giurina is the subject of criminal charges of theft and making a false document which are still before the courts. Those charges arose out of conduct relating to his dealings with the affairs of the OC;
·The Supreme Court dismissed his application for leave to appeal on the basis that DP Lulham’s findings about the termination of his earlier appointment as manager were ‘unassailable’;
·An application brought by Mr Giurina for an extension of time to challenge the costs order made arising from the matter before DP Lulham was dismissed by Wood AsJ because it had little or no prospect for success; and
·Garde J dismissed an earlier proceeding seeking to challenge a costs order on the basis the solicitors had not been properly engaged as an abuse of process.

Other relevant matters are the following:
·DP Lulham declared Mr Giurina had attempted to deceive the Tribunal within the meaning of section 78(1)(e) of the VCAT Act;[85]
·Mr Giurina commenced defamation proceedings against Ms Picone and Ms New;[86] and
·In the fee proceeding, I rejected Mr Giurina’s evidence (as contained in a 3 May 2017 affidavit and confirmed in evidence before me) that he was the solicitor for the OC for the entirety of the period between 2006 and 2017.[87]

I give particular weight to Mr Giurina’s past inappropriate conduct in respect of the financial and other interests of the OC and the absence of any support for his actions amongst the other lot owners.

[85]First Tribunal proceeding reasons [2012] VCAT 643, order 4 — see discussion [21]–[27].

[86]Mr Giurina’s witness statement sworn on 12 April 2017 [82], [87] and[ 88].

[87]Second Tribunal proceeding reasons [2017] VCAT 1509 [209], [213].

Section 165 of the OC Act does not provide a list of matters to be taken into account in making orders under it. Section 167 of the OC Act does that as follows.

What must [the Tribunal] consider?
[The Tribunal] in making an order must consider the following—
(a) the conduct of the parties;
(b) an act or omission or proposed act or omission by a party;
(c)the impact of a resolution or proposed resolution on the lot owners as a whole;
(d)whether a resolution or proposed resolution is oppressive to, unfairly prejudicial to or unfairly discriminates against, a lot owner or lot owners;

(e) any other matter VCAT thinks relevant.
(underline added)

In Avranik Pty Ltd v Lloyd & anor[88] Garde J observed:

Section 165 empowers VCAT to make any order it considers fair including any order of the types listed in (a) to (m) of s 165(1) or in s 165(2) or (3). Section 167 provides that in making an order VCAT must consider each of the matters listed in (a) to (e).

[88][2012] VSC 306. The decision was upheld on appeal: Avranik Pty Ltd v Lloyd & ors [2013] VSCA 244.

The Tribunal is not bound by the rules of evidence and may inform itself on any matter as it sees fit. It is however bound by the rules of natural justice.[89] Further, the rules of evidence are not irrelevant and should not be ignored.[90]
[89]Tribunal Act, s 98(1).
[90]The Secretary to the Department of Infrastructure v Williamstown Bay and River Cruises Pty Ltd [2011] VSC 191 [59].

The owners corporation referred to criminal charges against Mr Giurina. There is no conviction and accordingly this is a factor that should not have been taken into account.[91]
[91]Mokbel v DPP (Vic) & Ors (2008) 26 VR 1.

I do not consider that listing the factor of the criminal charges means there is any real prospect of Mr Giurina succeeding on this ground of appeal. That is because the Tribunal gave ‘particular weight to Mr Giurina’s past inappropriate conduct in respect of the financial and other interests of the OC and the absence of any support for his actions amongst the other lot owners’. The Tribunal concluded that the ‘other lot owners would suffer real prejudice if the question of the appointed manager was revisited again. That prejudice relates not only to legal costs but also to having these same matters re-agitated.’[92] Given this, I do not consider that the reference to Mr Giurina being the subject of criminal charges had a bearing on final relief.
[92]Third tribunal proceeding reasons [2017] VCAT 2127 [55]-[56].

As to Mr Giurina’s submission that considering findings from other matters goes beyond the jurisdiction given by s 162 of the OC Act, I do not agree. Section 167 is applicable and does not preclude findings in other proceedings being taken into account.

As to Mr Giurina’s submissions concerning the orders made in this proceeding on 23 February 2018; they were to the effect that the Tribunal be reconstituted for the purposes of a stay hearing, and that it should proceed before the named Senior Member forthwith.[93] No reasons are attached to the exhibited orders. Even if there were, they could not be relied upon to support the submission as to whether there was an error of law in a previous decision made by the Tribunal. That can only occur on appeal.

Ground 5:Tribunal erred by failing to consider evidence that Ms Deak and Strata Connect breached their Code of Professional Conduct and s122(1)(c) of the OC Act in arranging for Peter Calello to become the insurance broker for the owners’ corporation.

[93]Exhibit ‘EG-2’ to the Giurina 4 April 2018 affidavit.

The owners corporation submits that this issue was one the Tribunal declined to consider further as it had already been determined in the second Tribunal proceeding. Moreover, when the Tribunal considered various matters, including Mr Giurina’s allegation that he had the support of other lot owners, there was reference to the issue.

Mr Giurina says the issue of a conflict of interest by Ms Deak in engaging the insurance broker was not dealt with in the second Tribunal proceeding and the failure to consider that evidence in the third Tribunal proceeding is an arguable error of law.[94] He refers to paragraphs 96-97 of the reasons in the second Tribunal proceeding and says that they indicate the complaints would be considered no further. He says that the Tribunal relied upon other members not approving his conduct and it did not depend on that. Where there is evidence, as is the case here, that a manager is incapable of impartiality then this provides a ground for the Tribunal to remove the manager’s appointment under s 165(1) of the OC Act irrespective of whether the other members of the OC approved of the manager’s conduct.[95]

Analysis

[94]Kasumovic v Blanco [2007] SASC 267 [44].

[95]Tourtchine v Tygfal Pty Ltd [2014] VCAT 537 [31].

Mr Giurina has no real prospect of success on this ground.

In the second Tribunal proceeding, the Tribunal referred to Mr Giurina’s allegations concerning Ms Deak and insurance brokerage.[96] It held that it was irrelevant to the question of whether Mr Giurina and Ms Deak were obliged to pay the fees and levies approved by the OC. Further, that if Mr Giurina had an objection to the conduct of the manager, he could raise it with the other lot owners or take other action as he sees fit. The Tribunal concluded that it would not consider the complaint further.[97] It did however examine the issue of whether the OC passed a valid resolution authorising payment of insurance fees and held it did.[98]
[96]Second Tribunal proceeding reasons [2017] VCAT 1509 [95].
[97]Ibid [96].
[98]Ibid [158]-[165].

In the third Tribunal proceeding, there was reference to Mr Giurina’s allegation that Ms Deak failed to disclose a conflict of interest with respect to insurance.[99] The Tribunal later referred to Mr Giurina’s allegation that Ms Deak had acted improperly and held that, for the same reasons already discussed in the decision, it would not be appropriate for an order to be made under s 165(1)(ba) of the OC Act allowing Mr Giurina to have the question heard.[100]
[99]Third Tribunal proceeding reasons [2017] VCAT 2127 [42].
[100]Ibid [75]-[76].

Given this, it must be concluded that the Tribunal did have regard to Mr Giurina’s allegations. The Tribunal was not required to detail all the evidence before it.[101]
[101]Pham v Legal Services Commissioner [2015] VSC 671, Bell J adopted the observations of the Court in Applicant WAEE v Minister for Immigration and Indigenous Affairs (2003) 236 FCR 593, that ‘[i]t is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons’.

Lastly and as a matter of completeness, I observe that Mr Giurina misstated a number of authorities. For instance, in Kasumovic v Blanco[102] the relevant South Australian legislation provided an appeal by way of rehearing and it was not necessary to identify an error of law, as required by s 148 Tribunal Act. The failure in that case to address and evaluate evidence critical to credibility and to a fact in issue was held to constitute grounds for appeal but was not found to be an error of law.

Ground 6:Tribunal erred by failing to consider the benefit of Mr Giurina’s application and related orders to the owners’ corporation and that he would seek his costs from Ms Deak and Strata Connect, not the owners’ corporation.

Owners corporation submissions

[102][2007] SASC 267.

The owners corporation submits that the Tribunal took into account all relevant matters and submissions. There was no requirement for the Tribunal to provide a response to each and every purported benefit to the OC; only to consider the benefit to the OC as a whole.[103] The Tribunal referred to having regard to the relevant parts of affidavit material filed and the submissions made during the hearing.[104]
[103]Third Tribunal proceeding reasons [2017] VCAT 2127 [48]-[52], [56]-[57].
[104]Ibid [17].

None of the matters that Mr Giurina alleges the Tribunal inappropriately failed to take into account were matters it was obliged to take into account when determining whether to exercise its discretion and reinstate the proceeding; nor was the exercise of the Tribunal’s discretion manifestly unreasonable.

Mr Giurina’s submissions

Mr Giurina submits that the Tribunal failed to consider the overall benefits to the OC of the return of monies to it. He says that there is no reference in the decision of the benefit to the OC and there should have been.[105]

Analysis

[105]Hunnam v Evans [2003] VSC 234.

Mr Giurina has no real prospect of success on this ground.

The Tribunal identified that a relevant factor concerning s 165(1)(ba) of the OC Act was the benefit to the OC if the orders were made.[106] It is evident that no such benefits were identified. Indeed, the Tribunal concluded that it would be an abuse of process and ‘bring the administration of justice into disrepute among right-thinking people’.[107]
[106]Third Tribunal proceeding reasons [2017] VCAT 2127 [46].
[107]Ibid [57].

The Tribunal identified prejudice to the lot owners if the question of the OC was revisited again including not only legal costs but having the same matters re-agitated. It was open to the Tribunal to make that finding. The Tribunal did not need to consider that Mr Giurina would seek legal costs from Ms Deak and SC. That does not displace the burden of costs on the lot owners and OC.

Mr Giurina’s conduct

In his 25 January 2018 affidavit, Mr Giurina deposed that he is a barrister and solicitor of this Court. This is false. Mr Giurina admits, when pressed, that he does not hold a current practising certificate.

A solicitor means ‘an Australian legal practitioner whose Australian practising certificate is not subject to a condition that the holder is authorised to engage in legal practice as or in the manner of a barrister only’.[108]
[108]Section 6, Legal Profession Uniform Law, being Schedule 1 of the Legal Profession Uniform Law Application Act 2014.

A barrister means ‘an Australian legal practitioner whose Australian practising certificate is subject to a condition that the holder is authorised to engage in legal practice as or in the manner of a barrister only’.[109]
[109]Ibid.

There is a prohibition on unqualified people engaging in legal practice in s 10 of the Legal Profession Uniform Law. An ‘entity’ includes an individual.[110] A ‘qualified entity’ means, amongst other things, an ‘Australian legal practitioner’. An ‘Australian legal practitioner’ must hold a current practising certificate.[111]
[110]Ibid.
[111]Ibid, sections 10, 11.

10Prohibition on engaging in legal practice by unqualified entities
(1)An entity must not engage in legal practice in this jurisdiction, unless it is a qualified entity.
Penalty:250 penalty units or imprisonment for 2 years, or both.
11 Prohibition on advertisements or representations by or about unqualified entities
(1)An entity must not advertise or represent, or do anything that states or implies, that it is entitled to engage in legal practice, unless it is a qualified entity.
Penalty:250 penalty units.

I will give Mr Giurina the opportunity to make submissions on this issue, including whether or not I should refer this matter to the regulatory authority, being the Victorian Legal Services Commissioner.

The question of whether Mr Giurina has a conflict of interest given that on the one hand, he brings proceedings against the OC in his own name and purportedly in his capacity as a manager of the OC (as well as his purported capacity as co-executor) and yet, on the other hand, is co-executor of Lot 4, which is managed by the OC, was not ventilated at the hearing. I will however require a copy of these orders to be served upon State Trustees Limited, the administrator of Ms Giurina.

Conclusion

I will hear the parties on the appropriate form of orders and costs.

As discussed above, I will make orders requiring service of the orders and this ruling upon the State Trustees, as the administrator of Ms Giurina.

SCHEDULE OF PARTIES

ERMANNO GIURINA Plaintiff

- and -

MARIA DEAK First Defendant

STRATA CONNECT PTY LTD Second Defendant

OWNERS CORPORATION PLAN No 1579 Third Defendant

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Waterfall v Antony (No 2) [2012] VSC 467

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Owners Corporation No. 1579 v Ermanno Giurina [2014] VSC 63

ERMANNO GIURINA	Plaintiff
- and -
MARIA DEAK	First Defendant
STRATA CONNECT PTY LTD	Second Defendant
OWNERS CORPORATION PLAN No 1579	Third Defendant

[2018] VSC 409

27 July 2018