Kweifio-Okai v SPG Corporation Pty Ltd
[2020] VSC 386
•26 June 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 01534
| GEORGE KWEIFIO-OKAI | Applicant |
| v | |
| SPG CORPORATION PTY LTD (ACN 098 946 635) | First Respondent |
| STUART MILLER | Second Respondent |
| ANTHONY BREARLEY | Third Respondent |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 26 June 2020 |
CASE MAY BE CITED AS: | Kweifio-Okai v SPG Corporation Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2020] VSC 386 |
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ADMINISTRATIVE LAW – VCAT – Application for leave to appeal on questions of law – Application seeking return of deposit for purchase of apartment and damages in tort for property damage – Necessary parties not joined – No VCAT jurisdiction in tort claim – Whether it was open to VCAT to summarily strike out the application – Order that applicant pay respondents’ costs – Whether costs order justified – Whether applicant was denied procedural fairness – Duty to assist self-represented litigant – Victorian Civil and Administrative Tribunal Act 1998 ss 75 and 109.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Self-represented | Self-represented |
| For the First and Second Respondents | Tony Hargreaves & Partners | |
| For the Third Respondent | Mills Oakley |
HIS HONOUR:
The applicant, Dr George Kweifio-Okai, seeks leave to appeal from orders of the Victorian Civil and Administrative Tribunal (‘Tribunal’ or ‘VCAT’) made on 30 January 2019 summarily striking out his application after finding that it was frivolous, vexatious, and lacking in substance and ordering him to pay costs.
By contract of sale dated 23 December 2014 (‘Contract’), the applicant’s son, Sean Kweifio-Okai entered into a contract with the vendors Camberwell Property Holdings Pty Ltd and Camberwell Property Investments Pty Ltd to purchase an off the plan apartment at 368 Burnley Street, Richmond for $329,000 (‘Development Site’). Pursuant to the Contract, Sean Kweifio-Okai paid a deposit of $20,000. He did not settle the Contract in accordance with its terms and his deposit was forfeited to the vendors.
Dr Kweifio-Okai made an application to the Tribunal for the return of the deposit of $20,000 (‘First Claim’). He also claimed damages of $10,259 to his house and property sustained as a result of the first respondent’s, SPG Corporation Pty Ltd’s (‘SPG’), construction of the apartments directly opposite his house (‘Second Claim’). This construction was on the Development Site. Dr Kweifio-Okai’s written submissions said that the damage arose out of the respondents aiding and abetting wrongful and negligent acts of trespass and public nuisance, breach of general and extended duty of care ‘in part due to the close proximity and infringement of cultural, private and public rights’.[1]
[1]Applicant’s outline of submissions dated 19 August 2019, 1 (‘Applicant’s submissions’); Court Book, Kweifio-Okai v SPG Corporation & Ors (Supreme Court of Victoria) 60 (‘CB’).
On 9 April 2018, the parties participated in a mediation, but it did not resolve the dispute.
The parties
Dr Kweifio-Okai brought the application before the Tribunal in his name, acting under a power of attorney given by his son in relation to the First Claim, and on his own behalf in relation to the Second Claim.
SPG is part of the Spec Property Group which develops and sells property. Camberwell Property Holdings Pty Ltd and Camberwell Property Investments Pty Ltd are also part of that group. The second respondent, Mr Stuart Miller, is General Counsel of the Spec Property Group. The third respondent, Mr Anthony Brearley, is a partner at Mills Oakley, who provided legal services to the Spec Property Group, including conveyancing services connected with the sale of the apartments. The respondents did not own the Development Site or the apartments, nor were they directly involved in the development.
The applicant stated in his proposed grounds of appeal that the second and third respondents acted in a manner ‘that justified their enjoinment in the proceedings’ and they ‘aided and abetted the first Respondent in the handling of our pre-hearing claims to our detriment’.[2]
[2]Amended notice of appeal dated 16 May 2019, 2 (‘Amended notice of appeal’); CB 2.
First directions hearing
The application was listed for directions on 12 December 2018 before a Senior Member. After hearing submissions, she raised concerns that the wrong respondents were named, that Dr Kweifio-Okai did not have standing, and that the Tribunal did not have jurisdiction to hear the application. She listed the application for a further directions hearing at which the respondents’ application to summarily dismiss or strike out Dr Kweifio-Okai’s application under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) would be heard.
At the first directions hearing, Dr Kweifio-Okai said that his preference, if acceptable, was that his son’s name go on the claim for the deposit and he drop the damages claim, which he would take to the Magistrates’ Court. He said that he was prepared to have that amendment so that the hearing could go ahead. However, he seemed to depart somewhat from that position. The following passages from the transcript, which commence with discussion of Dr Kweifio-Okai’s claims against the lawyers, the second and third respondents and then contain discussion of possible amendments to his claim, are significant: [3]
[3]Transcript of Proceedings, Kweifio-Okai v SPG Corporation (Victorian Civil and Administrative Tribunal, BP811/2019, 12 December 2018) 12-13, 15-17 (‘VCAT T(Dec)’).
MR KWEIFIO-OKAI: They should have spoken to us so that we find out how we could mitigate our circumstances. They did not.
SENIOR MEMBER: But they don’t have to represent you. They don’t have –in fact- in fact, if they had gone against their instructions and negotiated with you when their client said we’re not talking, how – they would be in breach of their ethical obligations and they’d be up before the ---
MR KWEIFIO-OKAI: Why can’t we get them to come and defend themselves in the hearing? I think the way you are moving is to get them to drop ---
SENIOR MEMBER: Excuse me, sir ---
MR KWEIFIO-OKAI: We can include (indistinct) there ---
SENIOR MEMBER: So can we just amend the record and substitute [Sean] as the applicant.
MR KWEIFIO-OKAI: Rather than substituting, I think I will need to be a core applicant.
SENIOR MEMBER: Why? You don’t have any standing.
…
SENIOR MEMBER: --- but I’m keeping everything the way it is because if a I start tinkering with things then the section 75 can be – you know, I think the best thing to do is – if part of the claim is an ACL matter then you can deal – section 75 can deal with the merits or the – but if the damages claim is a jurisdictional matter, that might – that does not arise out of the Australian Consumer Law Fair Trading Act. That squarely is a nuisance claim. If the developer and the builder damage the cars in the street or damage the house, that is not something that we have jurisdiction to hear. Just like when you have a car accident. Property damage claims – you know if you have a car accident in the – and then your insurance company doesn’t come here. Property damage gets dealt with in the Magistrates Court. Nuisance gets dealt with in the Magistrates Court. So just because you might have a claim doesn’t mean that it can be brought. So ---
MR KWEIFIO-OKAI: The – my preference if you – is acceptable, is that [Sean’s] name go on the claim, we drop the damages which I take to the Magistrates Court in (indistinct) which was on the advice that I came to VCAT as opposed to the Magistrates Court, and I’m prepared to have that amendment so that the hearing goes ahead.
SENIOR MEMBER: Well, I’m not going to list this for a hearing. I’m still going to list this for a section 75 which is probably going to be quicker than a hearing.
…
SENIOR MEMBER: … So you want to substitute your son for the applicant?
MR KWEIFIO-OKAI: Well, if all the issues are going to be discussed [at the second directions hearing].
SENIOR MEMBER: Okay. Okay.
MR KWEIFIO-OKAI: --- I will be – we’ll have to ---
SENIOR MEMBER: Let’s leave it as it is. Let’s do a section 75, list it for two hours. You can raise the issue of the applicant. You can raise the issue of jurisdiction in relation to the damages. You can deal with that as jurisdictional issues and then you can deal with the – what is it – the deposit as a section 75. Have a look at the section 75 of the VCAT Act, particularly Pizer has for very good commentary on that. Pizer, section 75 of the VCAT Act. Have a look at that and then that will explain to you just the type of thing that this – that will be dealt with in that matter.
Section 75(1) of the VCAT Act provides that, at any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion, is frivolous, vexatious, misconceived or lacking in substance, or is otherwise an abuse of process. In its entirety, s 75 of the VCAT Act states:
75 Summary dismissal of unjustified proceedings
(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion—
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) is otherwise an abuse of process.
(2) If the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.
(3) The Tribunal's power to make an order under subsection (1) or (2) is exercisable by—
(a) the Tribunal as constituted for the proceeding; or
(b) a presidential member; or
(c) a member who is an Australian lawyer.
(4) An order under subsection (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.
(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.
Second directions hearing
At the second directions hearing on 30 January 2019, the respondents applied to dismiss the proceeding under s 75 of the VCAT Act on the following grounds.
In respect of the First Claim for the return of the deposit, the respondents argued:
(a) that Dr Kweifio-Okai had brought the claim against the wrong respondents, as he has no relevant relationship with the respondents he had named, and the Tribunal had no jurisdiction to hear the claim. Further, that his claim could not be pursued under the Australian Consumer Law and Fair Trading Act 2012, as it was not a consumer and trader dispute;
(b) that Dr Kweifio-Okai was not a party to the contract for the sale of the apartment and therefore had no standing; and
(c) the respondents were not parties to the contract. They were not entitled to release the deposit paid by Sean Kweifio-Okai.
In respect of the Second Claim for property damages, the respondents argued that:
(a) the Tribunal lacked jurisdiction to hear the claim under the Australian Consumer Law, as it appeared to be a claim in the torts of nuisance or trespass. In any event, no contractual relationship existed between the applicant and the respondents;
(b) the wrong respondents were named, as none of the named respondents were the owners of, or builders at, the Development Site. Accordingly, they could not be responsible for any damage to Dr Kweifio-Okai’s property; and
(c) the claim lacked detail as to how and when the property was allegedly damaged, who damaged it, and how the respondents were responsible for such damage.
In response, the applicant, who was self-represented at both directions hearings, contended that:[4]
(a) he was the legally appropriate applicant before the Tribunal and had standing to bring the First Claim under a power of attorney on behalf of his son, and on behalf of himself and his family in relation to the Second Claim; and
(b) the named respondents were the legally appropriate respondents for both claims.
[4]See Transcript of Proceedings, Kweifio-Okai v SPG Corporation (Victorian Civil and Administrative Tribunal, C7139/2018, 30 January 2019) 27-33 (‘VCAT T(Jan)’).
The Tribunal Member conducting the second directions hearing considered it inappropriate that the applicant’s son be joined as an applicant:[5]
MR KWEIFIO-OKAI: It is not possible to be joined?
MEMBER:Well, no, it’s going to require such change and repleading. It’s going to require…
MR KWEIFIO-OKAI: Well, I said that.
MEMBER:It’s going to require a joinder of an applicant, a joinder of two respondents, each of whom has to be given notice of the proceedings which will cause at least two more directions hearing because I can’t – nobody in the tribunal can make directions against them until they’ve been served, so you’d be coming back. In my view, it would only complicate an unnecessary delay in the proceedings and the appropriate way would be for your son to institute a new claim against those two if that’s what he wanted to do.
[5]Ibid 32.
After hearing submissions from the parties, the Tribunal Member ordered, pursuant to s 75 of the VCAT Act, that the applicant’s application be struck out on the basis that it was frivolous, vexatious and lacking in substance. He also ordered under s 109(3)(a)(vi) and (c) of the VCAT Act that the applicant pay the respondents’ costs of the proceeding incurred after 31 October 2018.
The order stated:[6]
[6]VCAT Order, Kweifio-Okai v SPG Corporation (Victorian Civil and Administrative Tribunal, C7139/2018, 30 January 2019); CB 4-5.
1.Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998, the proceeding is struck out on the basis that it is frivolous, vexatious and lacking in substance in that:
1.1[i]t seeks (in part) relief to which the applicant has no entitlement not having any standing to maintain a claim against any of the respondents with regard to monies paid under a Contract for the Sale of Land to which neither he nor a named respondent was a party.
1.2it seeks relief by way of compensation where no evidence has been adduced that any of the named respondents has engaged in conduct which might give rise to a cause of action at law, particularly no right of action under any enabling legislation which would vest jurisdiction in this Tribunal;
1.3 there is no evidence of the existence of the relationship of consumer (the applicant) and supplier (the respondents) of goods and services within the meaning of the Australian Consumer Law and Fair Trading Act 2012.
2.The Tribunal orders that, having regard to the Provisions of Section 109(3)(a)(vi) and (c) of the Victorian Civil and Administrative Tribunal Act 1998 the applicant must pay the respondents’ costs of the proceeding incurred after 31 October 2018 which, in the absence of agreement, are to be fixed on the usual basis, County Court Scale, by the Costs Court.
The Tribunal Member gave oral reasons for his decision. He referred to s 109 and said that he had been duty bound to strike out the proceeding and that ‘it was as weak as I could imagine’ and that ‘it was a hopeless case and has always been’. He concluded that the application was vexatious, as the respondents had put the applicant on ‘warning’ that his case was hopeless, but he proceeded with it anyway. He said both the claims were almost bound to fail, that the applicant should not have commenced the proceeding, and should have discontinued it when he had the opportunity to do so. When the Member had nearly completed giving his reasons, the applicant asked to be excused and for details of the amount of costs. The Member replied that that the amount of costs was for the parties to agree or the Costs Court to fix. The Member concluded his reasons by stating: [7]
The relative strengths of the parties are miles apart. It was a claim which was almost bound to fail and the applicant should not have started and had an opportunity to discontinue it. He had no standing to bring some of these claims. ..[T]hey fail not only because of his lack of standing but because of this tribunal’s lack of jurisdiction…
[7]VCAT T(Jan) 49.
Dr Kweifio-Okai’s application to this Court
By notice of appeal, the applicant sought leave to appeal to this Court under s 148 of the VCAT Act against orders 1, 1.2 and 2 of 30 January 2019.
The applicant’s application for an extension of time, for leave to appeal and, if leave was granted, the appeal were heard together. The applicant seeks orders setting aside the VCAT orders and requiring his application to be heard and decided again.
Proposed grounds of application
The applicant relies on one question of law expressed as follows:[8]
Against orders made by Member H. Davies on 30 January 2019 of VCAT Reference C7139/2018, my application was not “frivolous, vexatious and lacking in substance" within the meaning of s75 of the Act, nor was it fair to award costs against [him] under s109(2) [with reference to] s109(3)(a)(vi) & (c) of the Act.
[8]Amended notice of appeal (n 2) 2; CB 2.
I read that sentence as raising whether, as matter of law, VCAT erred in dismissing his application and ordering him to pay costs.
The applicant relies on four proposed grounds of appeal:[9]
[9]Amended notice of appeal (n 2) 2-3; CB 2-3.
1. Material questions of fact [do] not legally justify [an] award of costs;
2.Respondent established/accepted legal relations until the hearings.;
3.Second directions (jurisdictional) hearing was unnecessary and prejudicial; and
4. Case management and procedural irregularities.
The applicant requested, and the respondents agreed, that his application to this Court be determined on the papers.
The first and second respondents provided joint written submissions in response to these proposed grounds. The third respondent provided brief submissions, contending that leave should not be granted because the application had no real prospects of success, about which s 148(2A) of the VCAT Act requires the Court to be satisfied. He otherwise relied on its written submissions made for the second directions hearing which argued that the application should be struck out pursuant to s 75.
First proposed ground of appeal
Dr Kweifio-Okai’s first proposed ground of appeal is that the ‘material questions of fact [do] not legally justify [an] award of costs’.[10] His submissions suggest that his central argument is that it was not open to the Tribunal to make the s 75 order striking out the proceeding and ordering him to pay the respondents’ costs.
[10]Amended notice of appeal (n 2) 2; CB 2.
Applicant’s submissions
Dr Kweifio-Okai contended that his application to the Tribunal was not frivolous, vexatious or lacking in substance. The issues relied on by the respondents could be remedied. His son could have been substituted or added as an applicant to solve the issue of standing in relation to the First Claim and the correct companies could have been added as respondents.
Dr Kweifio-Okai relied on his cultural rights in support of his standing to pursue his son’s forfeited deposit. He desired to protect his son from adverse public exposure by representing him in the legal proceedings. He said that he was African and his wife was Australian and his sons were mixed race and were learning to deal with discriminatory and dismissive treatment. He said that negotiating for a refund of the deposit on behalf of his son under the power of attorney or representing him, although he was not a minor, was ‘to protect him from the ravages of litigation and inconsiderate opponent litigants [which] is an exercise of my cultural rights that should mitigate responsibility and punishment’ for mistakes he had made in his representation.[11] He said that his experience with the respondents ‘justified the exercise of my cultural rights in protecting him and the family’.[12]
[11]Applicant’s submissions (n 1) 2; CB 61.
[12]Applicant’s submissions (n 1) 2; CB 61.
He submitted that the issues raised by the respondents could have been avoided if they had treated the mediation seriously. Instead, the sole attendee at the mediation was ‘a poorly briefed construction manager’[13] who was unaware of the events surrounding the construction of the Development Site. The second directions hearing could have been avoided if the respondents had agreed to have the application struck out at the first directions hearing. Then the unfair costs order made against him at the second directions hearing would not have occurred.
[13]Dr Kweifio-Okai’s Affidavit dated 11 April 2019, 2; CB 7.
In any event, Dr Kweifio-Okai argued that there was no justification in law for the Tribunal to award costs against him. It had failed to provide a factual basis and reasons for concluding that his application was frivolous, vexatious and lacking in substance.
First and second respondents’ submissions
The first and second respondents submitted that the applicant’s reliance on a cultural defence did not establish standing. At the first directions hearing, it was explained to him that he could represent his son at the Tribunal, but that his son should be named as the applicant to establish standing for the First Claim. Despite this advice, the applicant told the Senior Member that he wished to remain as the named applicant. In any event, even if his son had been joined as an applicant, there would have been no different outcome at the second directions hearing, as he had also named the wrong respondents.
They submitted that it was open to the Tribunal Member to make both orders, and that he identified and applied the correct legal tests in making both orders.
Analysis of first proposed ground
The question of whether or not an application is frivolous, vexatious or lacking in substance or is otherwise an abuse of process is a question of law.[14]
[14]Victorian Civil and Administrative Tribunal Act 1998 s 75(5) (‘VCAT Act’) .
In Weber v Deakin University,[15] the Court of Appeal discussed the principles governing summary dismissal and striking out under s 75 of the VCAT Act. Their Honours stated:[16]
Whether a claim is frivolous, vexatious, misconceived or lacking in substance within the terms of s 75(1) is not to be determined in accordance with the balance of probabilities. In order for the power of dismissal under s 75 to be enlivened the Tribunal must have a higher degree of satisfaction.
[15][2018] VSCA 53.
[16]Ibid [24] (Tate, McLeish JJA, McDonald AJA).
The Court referred to Kaye J’s statement in Forrester v AIMS Corporation that, for a claim is ‘misconceived’ for the purposes of s 75(1) if it is ‘undoubtedly hopeless’.[17]
[17](2004) 22 VAR 97, 105 [25]. See also Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87.
The applicant’s position about what amendments he was willing to make to his application to deal with matters raised by the respondents and avoid the need for a s 5 application was not consistent. In his amended notice of appeal, he claimed that the errors raised at the first directions hearing were remediable and that the names of the respondents could have been amended and his son could have been substituted as the applicant to solve the standing issue in relation to the First Claim.
VCAT is required to conduct proceedings with as little formality and technicality and determine each proceeding with as much speed, as the requirements of the VCAT Act and the enabling enactment and a proper consideration of the matters before it permit.[18] Particularly, when a party is self-represented, alteration to, or joinder of, parties to permit the real issues to be decided will often be appropriate. However, I do not consider that all the issues raised at the first directions hearing were remediable, nor do I accept that Dr Kweifio-Okai was prepared to amend his application to avoid the need for a second directions hearing. Not only would Sean Kweifio-Okai have had to be joined as an applicant, but the appropriate companies joined as respondents and the second and third respondents, the two lawyers, removed as parties. Dr Kweifio-Okai was unable to provide a legal justification for joining the lawyers, but he gave no indication that he would abandon his claim against them. In any event, his Second Claim was a nuisance or trespass claim which the Tribunal lacked jurisdiction to hear.
[18]VCAT Act s 98(1).
The problems with the application were not just that Mr Sean Kweifio-Okai was not a party. That would not have been a reason to make a summary strike out order as it could have been simply remedied. Nor was it the fact that Dr Kweifio-Okai contended that he was exercising cultural rights; the Tribunal acted appropriately in permitting him to speak on behalf of his son. The problems were the following. The Tribunal did not have jurisdiction to hear the damages claim, as it was based in tort. In respect of the deposit claim: Dr Kweifio-Okai wished to sue the two lawyers, the second and third respondents, but without explaining any legal basis for such claims and he had not sued the two vendor companies which would have had to join. The combination of those circumstances meant that it was well open to the Tribunal to decide that it was appropriate to strike out the proceeding summarily and leave it to Dr Kweifio-Okai to consider whether he wished to commence any further proceeding. The Member said that he was ‘duty bound to strike out [the] proceeding’ and the application was doomed to fail and ought not to have been instituted.[19]
[19]VCAT T(Jan) 47-8.
I am satisfied that the Member’s decision was a proper exercise of the discretion conferred by s 75. While the Tribunal must exercise great caution in striking out a claim, I am satisfied that the Member was justified in doing so.
It is clear that the applicant’s claims would have failed if they had proceeded because of a combination of the applicant not having standing to bring the First Claim, the issue of the wrong respondents being named in both claims, the lack of a basis for the claims he wished to pursue against the lawyers, and the Tribunal not having jurisdiction to hear the Second Claim. There was no evidence of the existence of a relationship with any of the named respondents which might have enabled a claim under the Australian Consumer Law and Fair Trading Act 2012, on which the applicant’s claims relied, at least in part. I am satisfied that the Tribunal correctly applied the test under s 75 of the VCAT Act and as such, I find that the Tribunal was entitled to summarily strike out the application.
It followed that the Tribunal had the power to order the Dr Kweifio-Okai to pay the respondents costs under s 75(2) of the VCAT Act which states:
(2) If the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.
Alternatively, the Tribunal could make an order for costs under s 109 as it did. After hearing submissions about costs, the Member stated:[20]
The relative strengths of the parties are miles apart. It was a claim which was almost bound to fail and the applicant should not have started and had an opportunity to discontinue it. He had no standing to bring some of these claims. They – and they fail not only because of his lack of standing but because of this tribunal’s lack of jurisdiction, and for those reasons I am going to order the costs in the way in which I have suggested.
[20]Ibid 49.
The Tribunal exercised a discretion in awarding costs and no error has been established in its exercise of that discretion. The Tribunal had a broad discretion as whether it should order Dr Kweifio-Okai to pay the costs of the summary strike out order. It chose, as it was able to do, to exercise the costs discretion contained in s 109 which first provides that ‘subject to this Division [8], each party is to bear their own costs in the proceeding’. The Member relied on s 109(3)(a)(vi) and (3), which required the Tribunal to be satisfied that it was fair to make the order for costs having regard to two matters. First whether Dr Kweifio-Okai had conducted the proceeding in a way that unnecessarily disadvantaged the respondents by conduct such as vexatiously conducting the proceeding. Secondly by having regard to the relative strength of the claims made by each of the parties, including whether a party had made a claim that had no tenable basis in fact or law. In view of the flaws in the applicant’s claims, the Tribunal did not err in being satisfied of both matters and deciding to make an order for costs.
The applicant has not established his proposed first ground of appeal.
Second proposed ground of appeal
The second proposed ground of appeal was that the first respondent had established and accepted legal relations with Dr Kweifio-Okai until the first directions hearing.
Applicant’s submissions
Dr Kweifio-Okai contended that, prior to the first directions hearing, the respondents accepted that that he was acting on behalf of his son under his power of attorney. Then, at the first directions hearing, they objected to his standing.
Moreover, at the first directions hearing, Dr Kweifio-Okai said that he agreed to amend his claim to change the first respondent for the First Claim to the vendors, instead of the parent company. Nonetheless, Dr Kweifio-Okai argued that the naming of incorrect respondents did not justify the order made against him.
First and second respondents’ submissions
The first and second respondents argued that the negotiations prior to the commencement of the VCAT application were conducted by the second and third respondents in their capacity as legal representatives of the vendors, but the first respondent was not involved in the negotiations. They conceded that prior to the Tribunal hearings, the vendors said that Dr Kweifio-Okai could engage in correspondence on his son’s behalf, but at no time did they state that he could bring the proceeding in his own name.
Analysis of proposed second ground of appeal
The proposed second ground of appeal does not allege any error by the Tribunal. To grant leave to appeal, I must be satisfied that the applicant has identified a question of law arising from the Tribunal’s decision and that there is a ‘real or significant argument to be put that error exists’.[21]
[21]VCAT Act s 148(2A).
Dr Kweifio-Okai still maintained that that he had correctly included the second and third respondents as parties. As mentioned, they are the SPEC Property Group’s General Counsel and a partner in the firm of solicitors acting for it.
In any event, I find this proposed ground of appeal to be misconceived. In the exhibits attached to Dr Kweifio-Okai’s affidavit dated 11 April 2019, there is a copy of an email to him from the second respondent, who is the General Counsel at Spec Property. That email states:[22]
While it is not appropriate for us to comment by way of legal advice as to the form or substance of the power of attorney presented, we will accept the document as presented.
We will, however, continue to correspond with both of you and/or at least copy in Sean in relation to any further correspondence required.
[22]Email sent by Mr Miller dated 8 January 2018; CB 45.
The email does not mean that Dr Kweifio-Okai has standing to bring the First Claim on behalf of his son. Moreover, the discussions between parties prior to a hearing are not relevant in determining whether the applicant has standing, or whether the Tribunal had jurisdiction to hear his claims.
The second proposed ground of appeal is not established.
Third proposed ground of appeal
Dr Kweifio-Okai’s third proposed ground of appeal was that the second directions hearing on 30 January 2019 was unnecessary and prejudicial. As discussed above, at the first directions hearing, the Senior Member listed the proceeding for a second directions hearing when it was anticipated that a s 75 application would be heard and determined. The applicant contended that the Senior Member erred when she reserved costs and scheduled this further directions hearing.
Applicant’s submissions
Dr Kweifio-Okai claimed that the Tribunal itself may have unnecessarily disadvantaged the respondents within the meaning of s 109(3)(a) by scheduling a further directions hearing, and requiring the respondents to appear for a second time. On that basis, he had not caused the respondents disadvantage, and any disadvantage was exacerbated by the respondents claiming that they had not received his submissions prior to the hearing.
Dr Kweifio-Okai contended that the Senior Member should have dealt with the issues relating to his application in the absence of the respondents, and before the Tribunal accepted or rejected his application for filing.
First and second respondents’ submissions
The first and second respondents argued that Dr Kweifio-Okai’s third proposed ground was misconceived. The Tribunal was obliged to provide him with procedural fairness. Listing a second directions hearing ensured that he had the opportunity to understand and respond to the case against him. He did not object to the listing of the second directions hearing. He resisted the strike out application and contended that the parties to his application should not be amended.
Analysis of third proposed ground of appeal
In my opinion, the Senior Member did not err in ordering a second directions hearing in order that any s 75 application could be determined. She was entitled to so order in the exercise of her discretion as to case management. The Tribunal was obliged to provide natural justice to both parties.[23] Listing a further directions hearing ensured that Dr Kweifio-Okai had an opportunity to adequately respond to the arguments made against him in the s 75 application, and thus provided natural justice.
[23]VCAT Act s 98.
In any event, Dr Kweifio-Okai did not resist the s 75 application being listed at a second directions hearing. The Senior Member asked him if he wanted to substitute his name in place of his son, but he appeared to agree to that matter being left for discussion at the second directions hearing.[24]
[24]VCAT T(Dec) 16.
I do not consider that the second directions hearing was unnecessary or was the cause of prejudice to any party.
The proposed third ground of appeal is not established.
Fourth proposed ground of appeal
Dr Kweifio-Okai’s fourth proposed ground of appeal concerned the Tribunal’s case management and alleged procedural irregularities at both directions hearings. He provided four examples. First he alleged that there were ‘ex parte contacts’ between the Tribunal and the respondents in relation to both hearing. Secondly that the respondents did not receive his submission-in-reply before the hearing, although he had sent it via email on 17 January 2019. Because of this, the Tribunal Member adjourned the matter for a few minutes so that he and the respondents could read the submissions before proceeding. Dr Kweifio-Okai argued that this adjournment ‘disrupted and derailed’ the proceeding. Next, he alleged that the Tribunal gave him incomplete reasons during the hearing and refused to comply with his oral request for written reasons. After the hearing, the Tribunal failed to respond to his queries regarding case management and procedural irregularities in a timely manner.
In response to the above examples, the first and second respondents denied that the Tribunal’s processes were unfair and pointed out that there was no evidence of any ex parte communication between the Tribunal and the respondents. The Tribunal stood the matter down so that the respondents could read the applicant’s submissions. This did not disrupt the hearing and the applicant did not oppose it. The Tribunal’s reasons for its decision were adequate, and Dr Kweifio-Okai did not formally request written reasons at the hearing.
Analysis of fourth proposed ground of appeal
In my opinion, the Tribunal Members complied with natural justice in their case management and did not commit the procedural irregularities alleged.
There was no evidence of any ex parte communication occurring. The short adjournment was to assist the parties and the Tribunal Member to read and understand the applicant’s submissions.
The Member gave reasons for awarding cost against Dr Kweifio-Okai. The applicant and respondents disagreed as to whether he had requested written reasons at the end of the Tribunal hearing. In an affidavit of 12 April 2019, Dr Kweifio-Okai said that he had requested to be excused from the Tribunal, as he was feeling unwell, and asked to be provided with written reasons for the orders. Hence, he believed that he complied with the requirements of s 117(2) to request reasons. The relevant transcript passage where the applicant submits that he made this request reads:[25]
Your Honour, can I be excused from the rest of that so you send me the amount of money which is …
[25]VCAT T(Jan) 48-49.
I am not satisfied that the applicant did request written reasons for the orders made. Rather, he simply asked to be excused from the hearing. In any event, the Tribunal gave clear reasons for its costs decision which were recorded in the transcript. They were not incomplete.
There is no substance in Dr Kweifio-Okai’s fourth example that, after the hearing, the Tribunal failed to respond to his queries regarding case management in a timely manner. Dr Kweifio-Okai exhibited correspondence with the Tribunal, which culminated in the Registrar’s letter of 22 March 2019 stating that his request for written reasons for the Tribunal’s decision was denied. No unreasonable delay occurred.
The proposed fourth ground of appeal is not established.
Other matters
Procedural fairness as a self-represented litigant
Although not included in Dr Kweifio-Okai’s proposed grounds of appeal, in his written submissions, he contended that the Tribunal and the respondents were inconsiderate to him being a self-represented litigant. He claimed that he was taken advantage of in the first directions hearing when the Senior Member listed his application for a s 75 hearing, rather than summarily dismissing his case. Furthermore, he stated that at the second directions hearing, the Member dismissed his application in a ‘demeaning and humiliating manner’ and described his submissions ‘as the worst he had read…’[26]
[26]Applicant’s submissions (n 1) 3; CB 62.
Although these matters were not the subject of his proposed grounds of appeal, I have considered the matters raised but I see no substance in them.
The Tribunal attempted to assist Dr Kweifio-Okai understand procedure and the options available to him. At the first directions hearing, the Senior Member raised relevant legal issues confronting his claims, and options for him to consider. She enquired about whether he had sought legal advice and about the possibility of amending the parties to his application. She spoke to his son Sean Kweifio-Okai and asked him questions about his claim for the forfeited deposit. Thereafter, the Senior Member suggested that Dr Kweifio-Okai’s application be amended to substitute him as the applicant for the First Claim. Despite suggestions made, Dr Kweifio-Okai appeared not to agree with all the suggestions made to him stating:[27]
Rather than substituting, I think I will need to be a core applicant.
[27]VCAT T(Dec) 13.
At the end of the first directions hearing, the Senior Member also told the respondents that their s 75 application had to be written in ‘plain English’ as Dr Kweifio-Okai was a self-represented litigant.[28]
[28]Ibid 22.
At the second directions hearing, the Member read and listened to Dr Kweifio-Okai’s submissions. He also provided him with the opportunity to adjourn the proceeding to seek legal advice about costs, and to file written submissions on the question of costs.[29] Notwithstanding this offer, Dr Kweifio-Okai stated that he preferred to make the submission in relation to costs at the s 75 hearing.[30]
[29]VCAT T(Jan) 42.
[30]Ibid 43.
Dr Kweifio-Okai also claimed that the respondents abused his right to self-representation in the first directions hearing by supporting a s 75 hearing, and in the second directions hearing by their ‘riotous, rebellious and unprofessional protest’ in not receiving his written submissions prior to the hearing.[31] There is no substance in these allegations. First, as previously mentioned, the listing of a s 75 hearing ensured that both parties had an opportunity to be heard on the matter before any decision was made to dismiss or strike out the application. Secondly, the contention that respondents had acted unprofessionally in raising the fact that they had not received the written submissions is misconceived and unsupported by evidence. In fact, after the Member learned that the respondents had not received the submissions, he adjourned for a short time so that everyone could read them. I am not satisfied that this disadvantaged Dr Kweifio-Okai as a self-represented litigant. If anything, it advantaged him by ensuring that the hearing was conducted in accordance with natural justice.
[31]Applicant’s submissions (n 1) 3; CB 62.
Extension of time application
I will grant Dr Kweifio-Okai an extension of time to commence this proceeding because it appears that he was waiting for the Tribunal’s reasons, although, as I have concluded, I do not consider that he requested them within the time limit permitted.
The costs of the third respondent and the High Court decision in Bell Lawyers Pty Ltd v Pentelow
On 4 September 2019, about seven months after VCAT had summarily struck out Dr Kweifio-Okai’s proceeding and awarded costs against him, the High Court delivered judgment in Bell Lawyers Pty Ltd v Pentelow.[32] That judgment decided that the exception whereby a solicitor who represented himself in litigation could recover costs for work performed in the course of the litigation was not part of the law of Australia. I did not receive any submissions about the effect of that decision on the VCAT order for costs, particularly the costs claimed by the third respondent, and of course in view of the timing of the VCAT decision, the issue was not raised by Dr Kweifio-Okai in his grounds of appeal. In those circumstances, I will express no view on validity of VCAT’s order ordering the applicant to pay costs to the third respondent after 31 October 2018. The third respondent informed the Member that his application for costs was because of ‘legal costs away from my desk’ and that ‘I’ve had to get a litigation lawyer involved to assist me in this, so I am incurring cost’.[33] The VCAT order was that the applicant pay the respondents’ costs of the proceeding after 31 October 2018 which, in the absence of agreement, were to be fixed by the Costs Court on the usual basis, the County Court scale. I will only record the obvious point, that if the Costs Court, is required to tax the costs awarded by the VCAT order, it will need to take into account the effect of the High Court decision on the costs claimed.
[32](2019) 93 ALJR 1007; 372 ALR 555 applied by the Victorian Court of Appeal in United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA 15.
[33]VCAT T(Jan) 40.
Conclusion
The proposed grounds in the amended notice of appeal have not been established. Dr Kweifio-Okai is granted an extension of time until 2 April 2019 to commence the proceeding, but his application for leave to appeal the VCAT orders is dismissed. The proceeding is dismissed. I will direct that the parties may make written submissions for any further orders required.
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