Herrington v Lawrence
[2019] VSC 319
•14 May 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 01146
| SAMUEL HERRINGTON | Appellant |
| v | |
| CHRISTOPHER LAWRENCE | Respondent |
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JUDGE: | CAMERON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 May 2019 |
DATE OF JUDGMENT: | 14 May 2019 |
CASE MAY BE CITED AS: | Herrington v Lawrence |
MEDIUM NEUTRAL CITATION: | [2019] VSC 319 |
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JUDICIAL REVIEW – Application for leave to appeal decision of VCAT – Whether identified error of law – Whether real or significant argument that error exists – Whether grant of leave just in all the circumstances - Supreme Court (Miscellaneous Civil Procedure) Rules 2018 r 4.08(8) considered - Secretary of the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 referred to.
RES JUDICATA – Cause of action estoppel – Issue estoppel – Anshun estoppel – Previous proceedings before VCAT issued under incorrect legislative provisions – Previous proceedings dismissed as being issued under incorrect provisions – Whether final determination on the merits – Whether unreasonable not to raise correct cause of action – Residential Tenancies Act 1997 ss 259, 322, 325, 344 considered – Henderson v Henderson (1843) 3 Hare 115; 67 ER 319; Jackson v Goldsmith (1950) 81 CLR 446; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Re AWB Limited (No 10); ASIC v Lindberg (2009) 76 ACSR 181; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; LPD Holdings (Aust) Pty Ltd v Russells (a firm) [2017] QSC 45 referred to.
CIVIL PROCEDURE – Application for leave to amend notice of appeal – Application made at hearing of appeal – Whether prejudice to respondent – AON Risk Services v Australian National University (2009) 239 CLR 175 referred to.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | - |
| For the Respondent | Ms V Bell | Brand Partners Commercial Lawyers |
HER HONOUR:
What is this case about?
This matter has come before me by way of notice of appeal from a decision of Member Good of the Victorian Civil and Administrative Tribunal (‘VCAT’) dated 19 March 2019, and by way of summons for leave to appeal dated 26 March 2019.
In essence, the substance of the dispute is one of a residential tenancy concerning a property situated at 206/33 Claremont Street, South Yarra (the ‘Property’). The Appellant, Mr Herrington, resides in the Property, which is owned by the Respondent, Mr Lawrence. A twelve month fixed term tenancy agreement was entered into between the parties on 25 August 2017. The fixed term tenancy having come to an end, Mr Lawrence, by his agents, sought to regain possession of the Property as he wanted to sell it. To that end a notice to vacate the Property was served on Mr Herrington on 16 November 2018 (the ‘Notice to Vacate’). The Notice to Vacate required Mr Herrington to vacate the Property by 22 January 2019. This was resisted by Mr Herrington, who still remains in possession of the Property as at the time of hearing.
The VCAT proceedings
Proceedings were brought before VCAT by Mr Lawrence to enforce the Notice to Vacate, in pursuance of his attempts to regain possession of the Property for the purpose of sale.
Three applications were brought before VCAT for this purpose.
(a)first, an application dated 31 January 2019 seeking relief under s 344 of the Residential Tenancies Act 1997 (‘the Act’). Section 344 concerns a request for possession where premises are occupied by a person (not being a tenant under a tenancy agreement) without consent. The hearing of that application occurred before Member Mahoney on 11 February 2019. The application was determined by the Member to be brought under an incorrect provision and was dismissed. This order is not the subject of this appeal;
(b)second, an application dated 11 February 2019 sought relief under ss 322(3) and 325 of the Act. Those provisions apply where a tenant has given written notice to a landlord of their intention to vacate the premises. The second application was heard on 19 February 2019, before Member Good. Mr Herrington did not appear. Member Good dismissed the application as again having been made under the incorrect provision. This order is also not the subject of this appeal; and
(c)third, an application dated 19 February 2019 sought relief under ss 322(1) and 259 of the Act. The third application was heard on 5 March 2019, again by Member Good. At that hearing Mr Herrington submitted that the matters before the tribunal were res judicata as a result of the outcome of the previous two applications. Member Good rejected Mr Herrington’s submission, allowed the application and gave orders dated 19 March 2019.
The order of VCAT which is the subject matter of this appeal is the order of Member Good dated 19 March 2019. This order provided:
1.The landlord is entitled to a possession order.
2.The tenant must vacate the rented premises on or by 19 March 2019.
3.The principal registrar, at the request of the person who obtained the possession order and on payment of the prescribed fee, shall issue a warrant of possession to be executed within 14 days after the date of issue. (Any request must be made no later than 05 September 2019).
4.The issue of a warrant of possession is postponed until 19 March 2019.
Mr Herrington’s appeal
Mr Herrington seeks leave to appeal against the 19 March 2019 order to this Court, primarily on the basis that the issues which form the subject matter of the order were res judicata at the time it was made. This was put primarily on the basis that the two previous unsuccessful applications to VCAT, made as they were under the incorrect provisions of the Act, determined the issues in dispute between the parties, and therefore could not be re-litigated before Member Good on 5 March 2019.
It must be said that there was a paucity of evidence in this matter. Although transcripts of the three proceedings in VCAT (the ‘Transcripts’) were provided to the Court and to Mr Lawrence, they were not formally put into evidence. I observe that Mr Lawrence may indeed have been disadvantaged by a late receipt of the Transcripts. Notwithstanding that the Transcripts were not put into evidence in a formal sense, given that Mr Herrington is a self-represented litigant and that Mr Lawrence has had an extremely limited opportunity to consider them, I am prepared to have regard to them. The Court notes, in relation to this issue, that Mr Lawrence’s counsel, Ms Bell, independently referred to the transcript in support of Mr Lawrence’s own position concerning the question of whether matters had been determined by VCAT, and consequently whether Mr Herrington’s appeal must fail.
Mr Herrington’s submissions
Mr Herrington made submissions based on what he described as ‘strategic’ decisions on his own part and the part of Mr Lawrence in the conduct of proceedings before VCAT. These included issues such as the question of whether to appeal decisions of VCAT or indeed whether to appear to contest such decisions. These matters are not relevant to the matters that come before this Court on an application by Mr Herrington for leave to appeal the decision of Member Good dated 19 March 2019. The Court acknowledges that these matters may be of some concern to parties in the cut and thrust of contested commercial matters however they do not feature in the determination of the issues before this Court at this time on Mr Herrington’s notice of appeal and summons.
Mr Herrington submitted that, because each of the three proceedings before VCAT concerned enforcement of the Notice to Vacate, they all concerned the same cause of action. In this respect Mr Herrington sought to distinguish the factual nexus underlying the applications from the legal basis or bases for making them. Mr Herrington submitted that issuing a new application, rather than appealing the decision of Member Mahoney dated 11 February 2019, Mr Lawrence had allowed those matters to become res judicata.
By reference to the decision of the High Court of Australia in Port of Melbourne Authority v Anshun Pty Ltd,[1] Mr Herrington submitted that matters raised in the third application ought properly have been raised in the first application and therefore could not be agitated on 5 March 2019. Mr Herrington submitted that there were no ‘special circumstances’ which would entitle Mr Lawrence to re-agitate those matters in the third application.
[1](1981) 147 CLR 589.
Towards the conclusion of the hearing of Mr Herrington’s appeal an oral application was made by Mr Herrington for leave to file an amended notice of appeal. Mr Herrington’s submission was that he was:
Rushed to put in my notice of appeal due to the order coming into effect. We – because the trial was set down very quickly with a hearing that had come up, there were quick dates, and I didn’t get access to the transcripts – only till Friday.
So it has been a rush to sort of try and pull the case together after getting access to the transcripts.
There was no evidence before the Court, either written or oral, as to Mr Herrington’s attempts to obtain the Transcripts or indeed when they were received.
Mr Lawrence’s submissions
In written submissions filed on his behalf Mr Lawrence submitted that leave to appeal ought to be refused pursuant to rule 4.08(8) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018. Mr Lawrence submitted that Mr Herrington’s notice of appeal does not present an arguable case, and that he has failed to adduce sufficient evidence to determine whether a properly appealable question of law exists. These arguments were not further elaborated upon at the hearing of the matter.
Mr Lawrence further submitted that, in any event, the decision at first instance ought be upheld as the doctrine of res judicata has no application. Mr Lawrence submitted that cause of action estoppel did not apply as the third application was brought on a different legal basis, and therefore agitated a different cause of action, to those which were the subject of the first and second applications. Mr Lawrence further submitted that neither issue estoppel or Anshun estoppel were made out on the facts, as no issues of law or fact were actually determined in the previous applications. In oral submissions Ms Bell referred to the authorities on cause of action estoppel and issue estoppel, and reiterated that neither principle was made out on the facts of this case.
Mr Lawrence opposed Mr Herrington’s oral application for leave to file an amended notice of appeal. By reference to the decision of the High Court in AON Risk Services v Australian National University,[2] Ms Bell submitted that a grant of leave would cause her client to suffer undue prejudice, delay and costs. It must be observed that no particulars were given in relation to these matters. It was further submitted that Mr Herrington had failed to articulate how the alleged delay in receiving access to the Transcripts gave rise to any need to amend the notice of appeal.
[2](2009) 239 CLR 175.
Legal principles
Leave to appeal
Rule 4.08(8) of the Supreme Court (Miscellaneous Civil Procedure) Rules 2018 provides:
The Court may dismiss the appeal or the application for an extension of time or for leave to appeal (as the case may be) if satisfied that—
(a) the notice of appeal does not identify sufficiently or at all a question of law on which the appeal or proposed appeal may be brought;
(b) the appellant or applicant does not or would not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or
(c) the appeal or application is frivolous, vexatious or otherwise an abuse of the process of the Court.
In determining whether to grant leave to appeal, Mr Lawrence submitted that the Court may draw guidance from the decision of the Court of Appeal in Secretary of the Department of Premier and Cabinet v Hulls.[3] In that case the Court of Appeal granted leave to appeal from an order of VCAT which involved questions of construction of the Freedom of Information Act 1982. Phillips JA (which whom Tadgell and Batt JJA agreed) identified the following relevant guiding principles:
(a)the appellant must at least identify a question of law;
(b)the question of law must be one in respect of which a finding of error would advance the appellant’s claim to relief;
(c)ordinarily, the appellant will be required to show that there is a real or significant argument to be put that the error exists;
(d)the general or public importance of the question of law identified may be a relevant consideration;
(e)the decision below should be “attended by sufficient doubt to justify the grant of leave to appeal”; and
(f)in all the circumstances it must be just to grant leave, by reference to the position of the parties as well as affected third parties.[4]
[3][1999] 3 VR 331.
[4]Ibid, 335-336, [8]-[13].
Res judicata
The relevant principles relating to the various doctrines falling under the broad heading of res judicata – cause of action estoppel, issue estoppel and Anshun estoppel, are well traversed in the written submissions filed on behalf of Mr Lawrence.
With respect to cause of action estoppel (sometimes itself referred to as ‘res judicata’), I was referred by Ms Bell to the decision of the Supreme Court of Queensland in LPD Holdings (Aust) Pty Ltd v Russells (a firm).[5] In that case Flanagan J observed, by reference to the decision of the High Court of Australia in Jackson v Goldsmith:[6]
The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action.
There can be no res judicata unless the cause of action in the earlier proceedings is the same as the cause of action now being advanced.[7]
[5][2017] QSC 45.
[6](1950) 81 CLR 446.
[7][2017] QSC 45, [37].
I accept that to be an accurate summary of the relevant principles in this jurisdiction.
With respect to issue estoppel, Ms Bell referred me to the decision of the High Court in Tomlinson v Ramsey Food Processing Pty Ltd, where it was said:
The second form of estoppel is almost always now referred to as “issue estoppel”. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”.[8]
[8](2015) 256 CLR 507, 517.
Again, I accept that to be an accurate summary of the doctrine as it applies in this jurisdiction.
Mr Herrington referred me to the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd, from which the doctrine of Anshun estoppel draws its name. Mr Herrington drew my attention in particular to page 598 of the decision, where the High Court set out the following quotation from the decision of the English Court of Chancery in Henderson v Henderson:[9]
[W]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
[9](1843) 3 Hare 115; 67 ER 319.
Ms Bell submitted that those principles have, in effect, become the principles referred to as Anshun estoppel in this jurisdiction. I accept Ms Bell’s submission.
The application of the doctrine of Anshun estoppel turns upon whether it was unreasonable for a party not to raise an issue of fact or law in previous proceedings. With respect to that analysis it was said by Robson J in Re AWB Limited (No 10); ASIC v Lindberg:
In considering whether it was unreasonable for a plaintiff not to have relied on the cause of action raised in the second proceeding, the court should consider all the relevant facts, including the character of the previous proceeding, the scope of any pleadings, the length and complexity of the trial, any real or perceived difficulties in raising the relevant claim earlier and any other explanation for the failure to raise the claim previously.[10]
[10](2009) 76 ACSR 181, 227 [263].
The question raised by Mr Herrington is whether there were special or exceptional circumstances which would act as a barrier to his applications before this court proceeding. In my opinion, there is no need or reason to explore whether special (or in Mr Herrington’s words, ‘exceptional’) circumstances exist. It is apparent, on the face of the evidence and the Transcripts that there was not an adjudication on the merits in the first two failed proceedings before VCAT. Accordingly, in my opinion, there is no need for the Court to consider whether any special (or exceptional) circumstances exist.
Decision
In my opinion, leave to appeal from the decision of Member Good dated 19 March 2019 is denied for the following reasons:
(a) Mr Herrington has failed to identify an arguable case on appeal that the matters decided by Member Good were res judicata;
(b) the doctrines of cause of action estoppel and issue estoppel both apply only where a final judgment on the merits of the previous proceedings has been entered. Having regard to the Transcripts it is clear that there was no determination on the merits of Mr Lawrence’s claim at either of the first two hearings before VCAT. The only issues determined in the prior applications were that those applications had been issued pursuant to the incorrect provisions of the Act. The third application was brought pursuant to an entirely separate cause of action, and the limited issues decided on the first and second applications had no relevance to Member Good’s determination;
(c) Mr Herrington drew my attention to the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd. In particular the principle expressed by Vice Chancellor Sir James Wigram in Henderson v Henderson, to which I have referred. That principle does not support the contention urged upon the Court by Mr Herrington. In my opinion, there was no adjudication by VCAT on the merits of the applications before it and it was in any event reasonable for Mr Lawrence not to raise the matters at issue in the third application in either of the previous hearings;
(d) It is not unfamiliar territory to this Court or other tribunals or bodies within the judicial system to dismiss matters on a procedural basis whilst leaving open the opportunity for a party to re-agitate its cause on a different basis at a time of their choosing. There is no authority, in my opinion, to regard this as anything but a procedural matter which indeed, in various jurisdictions may express itself in an order for costs.
The Court is also required to address the issue of whether to grant the oral application made at the hearing of this matter for leave to amend the notice of appeal filed by Mr Herrington. The notice of appeal in this matter was filed on 19 March 2019 and a further summons filed on 26 March 2019 by Mr Herrington. Orders were made by Judicial Registrar Clayton on 17 April 2019 including that this matter be set down for hearing on 13 May 2019 with an estimate of half to one day. To the Court’s observation, Mr Herrington failed to comply with all orders made by Judicial Registrar Clayton. Although Mr Herrington purported to give evidence from the bar table as to his contact with the court and the difficulties he experienced in preparing for this matter, no particulars were given and no documents were produced to support any such perceived hardship. Accordingly, the Court cannot accept that Mr Herrington was under any particular time pressure to prepare for this matter nor was there any indication of a request for an adjournment until 4.16pm on Friday 10 May 2019, the last business day before the hearing of this matter was set down. The Court observes that no application for an adjournment was raised or agitated by Mr Herrington at the hearing of this matter.
By way of observation the Court notes that the parties were given several opportunities during the course of the hearing to engage in the event that some accommodation, acceptable to both, were possible. As events transpired, these attempts fell on fallow ground.
Further it is to be noted that Mr Herrington was given an adjournment to collect his thoughts prior to closing submissions.
Given these observations the Court does not consider that there is a sufficient basis for any further delay of the consideration of this matter which would naturally follow were the court to allow an amendment of the notice of appeal at this late stage.
Accordingly, I order as follows:
(a) Mr Herrington’s application for leave to appeal against the order of Member Mahoney dated 19 March 2019 is denied;
(b) I will hear the parties on the question of costs at 9.30am Thursday 16 Mary 2019.