Manningham City Council v Kazantzidis

[2008] VSC 365

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 365 of 2008

MANNINGHAM CITY COUNCIL	Appellant
v
KAZANTZIDIS	Respondent

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2008
DATE OF JUDGMENT:	12 September 2008
CASE MAY BE CITED AS:	Manningham City Council v Kazantzidis
MEDIUM NEUTRAL CITATION:	[2008] VSC 365

CATCHWORDS:  ADMINISTRATIVE LAW – Appeal from the Victorian Civil and Administrative Tribunal – Summary dismissal – Victorian Civil and Administrative Tribunal Act 1998 s75(1) – Whether there is sufficient knowledge of damage sustained by plaintiff to justify summary dismissal of an imprecise claim

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr R. Sadler	Hunt & Hunt
For the Respondent	No appearance

HIS HONOUR:

1. On 26 October 2007, Paul Kazantzidis and Penelope Kazantzidis, the respondents in this appeal, commenced a proceeding in the Victorian Civil and Administrative Tribunal, Civil Claims List, against Manningham City Council (the appellant in the present proceeding) and another respondent about whom nothing further need be said for the purposes of this appeal.

2. The proceeding at VCAT was commenced by the completion of an application to the Civil Claims List dated 24 October 2007, to which was attached a letter dated 30 April 2007.  Their claim may be briefly summarised as follows.

3. Mr and Mrs Kazantzidis booked the Doncaster Rovers Soccer Club hall for their son’s 21^st birthday party.  When they arrived at the venue to set up on the day of the party, they found there had been a double booking, despite the assurances they had previously sought and received from the soccer club.

4. They had to move the party to the cricket club rooms, quite a distance away.  Their application describes the difficulties which surrounded this change of plan, including being unable to use equipment they had hired, difficulties for their guests, loss of enjoyment of the occasion and general embarrassment.

5. Manningham City Council, the first respondent below and the appellant in this proceeding, leases the soccer club hall to the soccer club, which in turn had hired out the hall to Mr and Mrs Kazantzidis for the party.  The council had then hired the hall to someone else for a party on the same day.

6. Mr and Mrs Kazantzidis have been reimbursed for the amount they have paid to hire the soccer club rooms and now claim $24,380.  They claim $3,180 for what they spent on food, drinks and equipment, $1,200 for legal costs and $20,000 for stress, suffering and loss of enjoyment.

7. By an application dated 22 January 2008, the appellant sought an order from VCAT pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act (“the VCAT Act”) that the proceeding be dismissed and the respondents pay the applicant’s costs of the application and of the proceeding.  The grounds of the application were:

   1.The proceedings are an abuse of process as the tribunal lacks jurisdiction.

   2.That part of the proceeding that claims $20,000 for personal injury damages is misconceived and lacking in substance as the tribunal cannot order such damages in the circumstances.

8. In the application for this order, the facts relied upon in support of the application were stated as:

   1.Neither of the applicants relevantly engaged in trade or commerce for the purposes of the Fair Trading Act 1999.

   2.Neither of the applicants relevantly provided, granted or conferred in trade or commerce any rights, benefits, privileges or facilities for the purposes of s 107 of the Fair Trading Act.

   3.The tribunal cannot order the damages sought for pain and suffering in light of the impairment threshold in s 28LE of the Wrongs Act.

1. The argument run below is encapsulated in an affidavit filed in support of the appellant’s case in this proceeding.  In paragraph 7 of the affidavit of Ms Nieva Connell sworn 28 July 2008 she states:

“By written submissions and oral submissions in support of the appellant’s application for orders the appellant argued before the tribunal:

(a) the tribunal had no jurisdiction to entertain the claim for stress, suffering and loss of enjoyment damages by reason of s 1591A and s 107(3) of the Fair Trading Act;

(b) the tribunal had jurisdiction to entertain a personal injury claim for no greater than $10,000; and

(c) even if the tribunal had sufficient jurisdiction, the stress, suffering and loss of enjoyment damages could not be awarded as the respondents had not complied with the significant injury criteria of the Wrongs Act.”

1. Section 75(1) of the VCAT Act provides:

“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.”

1. On 23 May 2008, the Tribunal dismissed the appellant’s application for the claim against it to be dismissed.

1. On 24 July 2008, a Master of this Court granted the appellant leave pursuant to s 148 of the VCAT Act to appeal against the decision of the Tribunal made on 23 May 2008.

2. In essence, the appellant contends that the Tribunal erred in law in its construction of the expression “personal injury” in s 107(3) of the Fair Trading Act 1999 and erred in law in its construction of s 28LE of the Wrongs Act 1958 – which translates into a complaint concerning the interpretation of the word “injury” in s 28LB.

3. Section 107(3) of the Fair Trading Act is the section that, in combination with s 159(1)A, arguably limits the jurisdiction of VCAT in certain claims for personal injury to a sum not exceeding $10,000.

4. Section 28LE of the Wrongs Act is the provision which disentitles a person from recovering damages for non-economic loss unless the person has suffered a “significant injury” within the meaning of Part VB A of the Wrongs Act.

5. By their letter appended to the application to VCAT, the respondents claim $20,000 for “stress, suffering and loss of enjoyment” in addition to the sum of $4,380 I have identified above.

6. In dismissing the appellant’s application under s 75, the Tribunal concluded that the claims as presently formulated were not undoubtedly hopeless or obviously unsustainable in fact or in law or bound to fail (see generally State Electricity Commission of Victoria v Rabel [1998] 1 VR 102; Forrester v Aims Corporation [2004] VSC 506). The language of the Tribunal in this regard was the conventional language from authorities in the line in which the decision of General Steel[1] is one of the leading authorities.

   [1]General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125

7. In paragraph 36 of the appellant’s outline of argument on the leave application before the Master, it was stated:

   “Given that the VCAT has already made a decision about its jurisdiction, the plaintiff” -

   for that I read “appellant” –

   “cannot at a later date (without leave to apply out of time) seek to appeal from any adverse decision which may be made against it on this point.  The decision under review once and for all resolves the question of construction of s 159 and VCAT’s jurisdiction for the purposes of the case.”

8. I have read carefully and considered the detailed and helpful submissions, and supplementary submissions provided by Dr Sadler. I have also listened carefully to his arguments this morning and am not persuaded that they justify the dismissal of the proceeding pursuant to s 75 of the VCAT Act.

9. Without any disrespect to the respondents, who have not appeared this morning, there is a certain lack of precision in the way in which their claim has been set out at VCAT.  Indeed, Dr Sadler fairly conceded this morning that there are difficulties in characterising what the claim is by reason of loose language.

10. No evidence has yet been given, and it may be that there will be evidence of losses that are recoverable notwithstanding any failure to comply with s 28LE of the Wrongs Act and the apparent limit in s 107(3) of the VCAT Act. Specifically and in any event, there are at least the items that total $4,380 that I have referred to above, which would prevent the success of the application made under s 75 which was, as I have already stated, to dismiss the proceeding.

11. In this regard, the words of Mason CJ and Dawson, Gaudron and McHugh JJ in Wardley Australia Limited v Western Australia (1992) 175 CLR 514 at 533, although delivered in another context, are apposite. Their Honours said:

    “We should however state in the plainest terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action except in the clearest cases.  Generally speaking, in such proceedings insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.”

12. The question in that case was, of course, a limitation question.

13. Similarly here, in my view, insufficient is known of precisely what damage was sustained by the applicants below (the respondents here) to justify summary dismissal.

14. Further, insofar as the appellant is concerned that the decision of VCAT might somehow bind the Tribunal at trial, this concern is misconceived.  All that has occurred is that an application for summary dismissal by a defendant has itself been dismissed, allowing the proceeding to go forward to trial.  There is no estoppel created by the decision below.  At this stage, it is not necessary to embark on a definitive interpretation of the relevant statutory provisions.  Contrary to the appellant’s contention before the Master, the appellant can re-agitate its constructions of the relevant sections at trial.  It is enough to say that the respondent’s claims are not so obviously untenable as to justify the dismissal of the entire proceeding (as was sought in the application dated 22 January 2008).

15. For the above reasons, I am of the opinion that the appeal should be dismissed.  Accordingly, the order of the court is, appeal dismissed.