McMillan v Su & Anor (Civil Dispute)
[2023] ACAT 30
•18 May 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MCMILLAN v SU & ANOR (Civil Dispute) [2023] ACAT 30
XD 8/2022
Catchwords: CIVIL DISPUTE – application to strike out proceedings – substantive application brought out of time – postponement of the bar – was applicant ‘under a disability’ –– alleged partnership - effect of prior judgment obtained against one partner – merger of rights in prior judgment – abuse of process to bring subsequent application against other partners – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 32
Competition and Consumer Act 2010 (Cth) Schedule 2
Fair Trading (Australian Consumer Law) Act 1992 (ACT)
Limitation Act 1985 ss 11, 14, 30 and dictionary
Partnership Act 1963 ss 13, 16
Subordinate
Legislation cited: Court Procedures Rules 2006 r 651
Cases cited:Abrahams v Comcare (2006) 93 ALD 147
Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141
Benjamin Luke Brown v Richard Haureliuk [2011] ACTSC 9
Binetter v Binetter [2022] NSWCA 169
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
General Steel Inc v Commissioner for Railways (NSW) (1964) HCA 69; CLR 125
Gindy v Chief Minister & ACT Government and Ors) [2011] ACAT 67
Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13
Kendall v Hamilton (1879) 4 App Cas 504
Kotulski v Attard [1981] 1 NSWLR 115
NSW Bar Association v Muirhead (1988) 14 NSWLR 173
New South Wales v Harlum [2007] NSWCA 120
P v Registrar of Firearms [2018] ACAT 74
Powell v Aymkone Pty Ltd (unreported) [2008] NSWSC 1270
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4
Thomson v Lord Clanmorris [1900] 1 Ch 718
Walton v Gardiner (1993) 177 CLR 378
List of
Texts/Papers cited: Fletcher, The Law of Partnership in Australia (9th Ed, 2007)
Tribunal:Presidential Member MT Daniel
Date of Orders: 18 May 2023
Date of Reasons for Decision: 18 May 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 8 of 2022
BETWEEN:
EVGENIYA MCMILLAN
Applicant
AND:
HOCK YAW SU
First Respondent
HONG HUEY SU
Second respondent
TRIBUNAL:Presidential Member MT Daniel
DATE:18 May 2023
ORDER
The Tribunal orders that:
The application lodged 6 January 2022 is dismissed.
………………………………..
Presidential Member MT Daniel
REASONS FOR DECISION
Introduction
On 20 May 2022 I heard an application by Hock Yaw Su (the first respondent) and Hong Huey Su (the second respondent) for orders dismissing an application brought against them by Evgeniya McMillan (the applicant). The respondents argued that the application against them should be dismissed without proceeding to a full hearing because it was brought after the six-year limitation period had expired, and even if brought within time was an abuse of process.
At the hearing on 20 May 2022, I indicated that I would find that the application had been brought within time, but I reserved my decision as I wished to consider in more depth the arguments around abuse of process.
In further reading the lodged material and legislation, and considering the parties submissions, I am not comfortably satisfied of those matters which would make the application within time. Contrary to the indication I gave to the parties at the hearing, the application must be dismissed on that ground alone. I am also satisfied that the application is an abuse of process, and must be dismissed on that basis. My reasons for these conclusions follow.
The Facts
For the purposes of the respondents’ application, the following facts asserted by the applicant are taken to be true.
In 2015 the applicant decided to have her bathroom renovated. She went through the process of obtaining quotes from a number of businesses. She met with John Luxford, who at that time operated a business known as Sulux Home Solutions. On at least one occasion in this period John Luxford attended the applicant’s home, in the company of his then wife, the second respondent. During one discussion, John Luxford explained to the applicant that the name Sulux was a combination of his and his wife’s surnames. The car driven by John Luxford at that time had the business name written on it, and two mobile telephone numbers.
On 4 October 2015 the applicant received John Luxford’s quote which required a 40% deposit. The applicant accepted this quote, and by mid-November 2015 a total of $2800 (in two payments) had been paid to the account nominated by John Luxford. Work then commenced in the latter part of November 2015.
Soon afterwards, the applicant became uneasy about the quality of the work being performed and concerned that John Luxford was not a licenced builder. The applicant says it was a term of the contract that the work be undertaken by a licensed builder.
On 30 November 2015 the applicant and John Luxford spoke on the telephone and the applicant raised her concerns. The applicant says that in this conversation John Luxford became aggressive. John Luxford later that day attended the applicant’s house, the conversation again deteriorated, and the applicant asked her friend to call the Australian Federal Police. John Luxford left the premises before the police arrived. The applicant says that it was on this day that she terminated the contract.
The applicant then arranged to have the work checked by both the spa distributor and a building surveyor, each of whom provided to her in December 2015 their written views about deficiencies in the work undertaken so far.
On 22 December 2015 the applicant wrote a four-page letter to John Luxford, clearly setting out the above background and asserted deficiencies in the work, and explaining how he had breached the warranties proffered under the invoice. The applicant also referred to her rights under statutory warranties, and demanded the deposit be refunded to her.
John Luxford did not respond to the letter of demand, nor did he refund the $2800 deposit.
On 11 March 2016 the applicant brought a civil dispute application in the ACAT (the first application) against John Luxford. The application was signed by the applicant. It was nominated by the applicant as a contract application[1], and commenced by stating “John Luxford (trading as SULUX HOME SOLUTIONS) was contracted by me to undertake bathroom renovations.” After referring to the main points listed above, it concluded by seeking a full refund of the deposit. Attached to the civil dispute application form was:
(a)An ASIC search showing John Luxford as the holder of the business name Sulux Home Solutions. The holder type was recorded as ‘Person’.
(b)The quote for the work dated 4 October 2015.
(c)An email from the spa distributor dated 7 December 2015 setting out their opinion having inspected the work on 3 December 2015.
(d)A letter from a building surveyor dated 19 December 2015 setting out their opinion having inspected the works on 10 December 2015.
(e)The letter of demand dated 22 December 2015.
[1] The ACAT civil dispute application form provides for an applicant to tick a box indicating the nature of the claim, drawing on the definitions in Section 16 of the ACT Civil and Administrative Tribunal Act 2008. In this case the box for ‘contract application’ was ticked.
John Luxford did not lodge a response to the first application. On 17 April 2016 the applicant applied for default judgment. Default judgment was then entered against John Luxford in the amount of $3018.71 being the $2800 deposit, ACAT filing fee of $140 and pre-judgment interest.
John Luxford did not pay the judgment debt – in part or at all – to the applicant, so the applicant then commenced enforcement action in the Magistrates Court.
On 21 September 2016 John Luxford was subpoenaed to attend an enforcement hearing before a Registrar of the Magistrates Court. He had earlier[2] provided a sworn statement of financial position, notable for its almost complete lack of any financial information. The standard form for a statement of financial position runs to over six pages, and requires the judgement debtor to list in detail their assets (including joint assets and any other assets in which the judgment debtor has any interest), all current and future sources of income, and liabilities. For every line of this form but two, John Luxford had simply written ‘Nil’. He disclosed at item 4 that he had clothing to the value of $500 and wrote at item 8 ‘my spouse support me’. He asserted that he had no bank accounts.
[2] On 12 September 2016 – Exhibit 2 to the applicant’s amended particulars of claim
Transcript of the 21 September 2016 examination was provided in these proceedings by the applicant[3]. The transcript discloses John Luxford stating that he lived at an address in Macgregor, he was fully supported by his ‘partner’ – his wife – and that he had no income or assets of any kind. He said that his business was now not operating due to some failed contracts and his suffering from depression, that his wife rented the property in Macgregor in which he lived, that she owned the car that he drove, that he had sold to his wife his work tools which she then passed to a friend of hers, that his wife had no interest in his business and that it was not a partnership. When asked by the applicant’s support person what had happened to the jet ski usually at the front of his residence, John Luxford said it had been given to a friend to whom he owed a debt.
[3] Exhibit 2 to the applicant’s amended particulars of claim
Thereafter the judgment debt remained unsatisfied.
On 7 June 2020 the Australian Financial Review published an article about online scams, highlighting the case of a John Luxford who was said to have recently been scammed out of his ‘life savings’ of around $40,000. A photograph published with that article confirmed to the applicant that this was the John Luxford who still owed her $3018.71, and who had sworn to the Magistrates Court four years earlier that he had no financial resources of any kind.
Further investigations by the applicant (including driving past the Macgregor property and checking John Luxford and his family member’s Facebook posts) confirmed that John Luxford was still living at the residence in Macgregor. A title search revealed the Macgregor property to be owned by Hock Yaw Su, the first respondent. The applicant observed John Luxford to drive a car with the numberplate JL-888. The applicant also recalled a bank employee advising that the account to which the deposit was paid was an account in the name of ‘Hong Hewie Su’ and this name was written on the deposit slip[4] (whether by the bank employee or the applicant, and at what time, is unclear).
[4] Exhibit 4 to the applicants amended grounds of claim
All of these preceding facts lead the applicant to conclude that John Luxford and his wife had worked in partnership in the business known as Sulux Home Solutions, and that his wife as partner should also be liable to refund the deposit.
The current proceedings
On 6 January 2022 the applicant brought a civil dispute application (the second application) against the first respondent. This application claimed an amount of $4945.71 comprised of the judgment debt of $3018.71, costs of remediation of the bathroom and costs of the enforcement proceedings in the Magistrates Court against John Luxford. The application also sought orders for:
(a)An extension of time to bring the application, should it be out of time under the Limitation Act 1985; and
(b)The respondent to produce documents and things in “her possession, custody or control which may assist the tribunal in determining your property and financial circumstances including tax returns, bank records and statements, passbooks. In addition wherever applicable, the Respondent’s details of regular household and other expenses.”[5]
[5] This phrase mirrors the common wording of an enforcement summons to a judgment debtor.
The second application form was signed by the applicant. Attached to the application form was a ‘Statement of Claim’ which outlined the obtaining of default judgment against John Luxford, the failure of enforcement processes to satisfy the debt, the information by which the applicant concluded that John Luxton was in partnership with his wife, and ended by asserting that as his partner his wife was jointly/severally liable for the judgment debt.
It is clear from the second application that the applicant brought the proceeding on the mistaken basis that the first respondent was John Luxford’s wife. A response lodged by the first respondent denied most of the assertions in the current application and stated that he was the owner of the house in Macgregor which had at times been rented to John Luxford.
The second application came before the Tribunal for an initial directions hearing on 25 February 2022. At the directions hearing it became clear that the first respondent is in fact the brother of Hong Huey Su, who had previously been John Luxford’s wife. The Tribunal made orders joining Hong Huey Su as the second respondent to the proceedings, requiring the second respondent to be served with the current application and to lodge a response, and listing the application for a further directions hearing on 8 April 2022.
When the matter came before me on 8 April 2022 the applicant was present in person together with her representative Roger Gibson, who had her power of attorney for these proceedings. The respondents were not present but were represented by Justin Raine, a solicitor, who appeared by telephone. By this time each of the respondents had lodged a response denying the existence of a partnership. The respondents had also on 10 March 2022 lodged an interim or other orders application (the strike out application) seeking orders dismissing the current application on the basis that it was both out of time and an abuse of process. Attached to the strike out application was a comprehensive written submission.
The strike out application was listed for hearing on 20 May 2022. The applicant was directed to give to the Tribunal and the respondents in advance of that hearing:
(a)Any witness statements or other evidence relevant to the Limitation Act question;
(b)a document entitled ‘grounds of claim’ which would set out the basis of the claim against each respondent and outline the facts and dates relevant to that claim; and
(c)written submissions.
The respondents were directed to give to the Tribunal and the applicant a response to the ‘grounds of claim’, written statements of any witness they would wish to call at the hearing, and any submissions in reply.
The parties complied with these directions.
At the hearing of the dismissal application on 20 May 2022 the applicant relied upon:
(a)The application lodged 6 January 2022;
(b)An amended application lodged 2 May 2022 attached to which was a document entitled ‘amended grounds of claim’ in which she:
(i)reduced the amount claimed against the respondents to $3018.71 (the amount of the judgment debt);
(ii)asserted that the respondents and John Luxford were in a partnership involving the business Sulux Home Solutions and thus liable for the judgment debt;
(iii)asserted that the respondents and John Luxford “have arranged their joint family financial affairs to portray John Luxford as a man of straw to protect the main Su family asset, the property from Luxford’s numerous creditors.”
(iv)continued to seek orders for discovery of tax returns, bank statements and other financial information, including information from the first respondent as to the source of funds for the purchase of the McGregor property and all residential tenancy agreements for the property since time of purchase.
(c)Exhibits 1-5 to the ‘amended grounds of claim’ consisting of (in ascending order):
(i)A family photo of John Luxford and the respondents, obtained from Facebook;
(ii)Transcript of the Magistrates Court enforcement hearing on 21 September 2016, and the judgment debtors statement of 12 May 2016;
(iii)A piece of paper recording ANZ bank account details with the name John Luxford written on it, together with two receipts for payments to that account;
(iv)A copy of the Australian Financial Review article of 7 June 2021;
(v)A copy of the invoice for the building work, with the ANZ bank account details on it.
(d)her email to the Tribunal of 26 April 2022 at 8:03 pm which set out her submissions about the limitation period; and
(e) further emails to the Tribunal of 29 April 2022 and 2 May 2022 which contained further submissions.
The applicant also provided medical evidence which will be outlined below.
The respondents had not received all of the documents lodged by the applicant, but were content to proceed on 20 May 2022 on the basis that they knew the substance of the documents being referred to.
The respondents relied upon:
(a)The amended application for interim or other orders, lodged 1 April 2022;
(b)A joint submission to support the strike out application, lodged 1 April 2022;
(c)A joint submission in relation to the limitation question, lodged 18 May 2022.
The respondents also relied upon their joint response to the amended grounds of claim, lodged 18 May 2022, in which they asserted that ‘Sulux’ was not a legal entity but simply a trading name of John Luxford, and denied being at any time, either separately or jointly, in a business partnership with John Luxford.
In the joint response the second respondent:
(a)admitted attending the applicants home with John Luxford on one occasion, but said that she remained in the car, did not enter the house, and did not have any conversation with the applicant;
(b)admitted marrying John Luxford in 2009 and stated that the marriage ended in divorce in 2019;
(c)admitted living in the Macgregor property with John Luxford from 2009 and asserted that John Luxford had not resided at the property since 2019;
(d)Admitted that there are now security cameras installed at the MacGregor property;
(e)Admitted renting the Macgregor property from her brother, and denied any legal relationship with the first respondent other than that of lessor.
(f)Admitted that from time to time she would assist John Luxford with jobs he was undertaking, and stated this assistance ‘was gratuitous and in the context of a spouse providing assistance in the business of the other spouse’. She denied that this assistance constituted ‘carrying on business together’.
(g)Denied that the ANZ bank account was operated by her.
In the joint response the first respondent specifically:
(a)Admitted being the registered owner of the Macgregor property since 2009;
(b)Admitted renting it initially to John Luxford and the second respondent until 2019 from which point in time it was rented to the second respondent alone;
(c)stated that there were no written residential tenancy agreements;
(d)Admitted refinancing the property from time to time in the ordinary course of events for an investment property.
At the hearing of the dismissal application on 20 May 2022 the applicant and her representative Roger Gibson were present in person. The first and second respondents were not present, but were represented by their solicitor Justin Raine who participated by telephone. After hearing from those present I reserved my decision.
A preliminary question - what is the basis of the current application?
Both the limitation issue and the abuse of process issue turn on a characterisation of the legal and factual basis for the first and second applications. For each proceeding, what is the nature of the ‘action’ and what is the ‘cause of action’?
An ‘action’ is the originating process which engages the jurisdiction of the court or tribunal, while the ‘cause of action’ is the combination of facts and law relied upon as the basis for the action[6].
[6] Thomson v Lord Clanmorris [1900] 1 Ch 718;
It is sometimes difficult to know the precise nature of the action and cause of action relied upon for a civil dispute application brought in the ACAT. This is because ACAT’s civil procedures do not include the strict pleading requirements that apply in most courts. As noted above, the civil dispute application form simply invites the applicant to tick a box, and then provide a short description of what the dispute is about. This lack of pleadings is appropriate in a forum where self-representation is the norm. In the vast majority of civil dispute applications, the action and cause of action are obvious enough to enable a quick and fair hearing. A requirement for clarity can always be imposed by direction in those rare cases in which it is necessary. This was one of those cases, hence the applicant was directed to provide a document setting out what the grounds of the claim were before the hearing of the strike out application.
The first application was clearly a civil dispute application – contract application. The box for a contract claim was ticked, the description of what the dispute was about referred to the contract and its breach. In legal terms, the ‘action’ was an action for breach of contract. The ‘cause of action’ was the combination of facts[7] and the law of contract which gave rise to the applicant’s entitlement to be repaid the deposit.
[7] such as the oral and written communications, the money having been paid, the work done and its quality, and whether or not John Luxford was a licensed builder, the communication of the contract being terminated and the demand for refund.
The second application is also brought as a civil dispute application – but the box for contract application is not ticked. The box for ‘debt application’ is ticked. The box for ‘other authorising law’ is also ticked, and the words ‘Partnership Act 1983 (ACT)’ inserted. The attached ‘Statement of Claim’ asserts the existence of a judgment debt against John Luxford which remains unsatisfied and a partnership between John Luxford and the respondents under which debts are joint and several, by reason of which the respondents are liable to pay to the applicant the debt unpaid by John Luxford.
In her amended grounds of claim the applicant repeated the facts, legislation and reasoning contained in the second application as lodged.
In identifying the cause of action, the respondents submitted[8]:
5. It is also not clear in the Amended Grounds of Claim exactly what cause of action the Applicant relies upon. Arguments could be made in respect of various causes of action, with some potentially arising at slightly different times than others (depending on the elements of the various causes of action).
[8] Paragraph 5, respondents’ joint submission on the limitation period
It seems to me that on the applicant’s reasoning, the second application is not a contract application but an application asserting an unpaid debt, relying on the existence of the default judgment and provisions in the Partnership Act. In addition, as highlighted by the respondents, the facts referred to in the second application could form the basis for other actions. The available actions include:
(a)A debt application against two partners relying on the unpaid default judgment against a third partner (the judgment debt action currently pleaded);
(b)An application for breach of contract against two partners, relying on actions undertaken by a third partner (the contract action - essentially the same cause of action as in the first application);
(c)An application under the Australian Consumer Law[9] against two of three partners (the ACL action – not explicitly pleaded in either the first or second applications); and
(d)An application for negligent misstatement against two of three partners (the negligence action – not explicitly pleaded in either the first or second applications).
[9] Fair Trading (Australian Consumer Law) Act 1992 (ACT); Competition and Consumer Act 2010 (Cth) Schedule 2, Australian Consumer Law
Additionally, the second application seeks orders for discovery of documents to prove the existence of the partnership, by which it could be taken to be an application for preliminary discovery against the respondents to identify whether they are proper respondents to one of the above substantive applications[10]. To the extent that it is such an action, I have considered it with the substantive application in relation to which the production of documents is sought.[11]
[10] This would be in the nature of an application under Rule 651 of the Court Procedures Rules 2006 (ACT). At the hearing on 20 May 2022 the applicants representative Roger Gibson advised that if the respondents merely produced their tax records and other records to demonstrate that there was no partnership, the second application would be withdrawn.
[11] For completeness I note that one thing the second application does not do is seek to set aside the judgment on the first application and re-open the 2016 proceedings. At the directions hearing on 8 April 2022 I pointed out that it was always open to the applicant to make such an application on the file for the first application, although the outcome of such an application would be uncertain given the passage of time and other relevant factors for the exercise of that power under section 56 of the ACT Civil and Administrative Tribunal Act 2008.
Should I approach the strike out application by reference to these potential other causes of action, or should it be addressed by reference only to the claim pleaded in the amended grounds of claim? For two interconnected reasons, I consider it is appropriate to take the broader approach.
First, as I noted earlier, the processes of the Tribunal are not legalistic, but are designed to be accessible to self-represented parties and to enable the quick, inexpensive, just and efficient resolution of disputes in a proportionate manner.[12] Generally speaking, the Tribunal will not view the initial indication by an applicant on a civil dispute application form as limiting the future hearing to only the action indicated, but will work with the parties at a conference or directions hearing to identify the real dispute and relevant law, the necessary parties to that dispute, and then make directions to prepare the application for a fair hearing. Multiple proceedings about the same disputed facts are as much as possible avoided. When it is apparent to the Tribunal that the real legal basis of the claim is different to that indicated, or there is an additional legal basis for the relief sought, this is drawn to the parties’ attention and appropriate directions made to prepare the dispute for conference, mediation, or hearing. That is not to suggest that it is the obligation of the Tribunal (especially at a hearing) to make a party’s case for them, nor to consider possible causes of action that have not been raised[13]. Rather it is to acknowledge that in the preliminary conference or directions hearing discussion about the true legal basis of the claim, and clarification of the cause of action, will often take place, and these processes would be available to the applicant should the second application proceed.
[12] ACAT Act, s.7
[13] For a discussion of the extent of the Tribunal’s duty re unpleaded causes of action see Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 at [49] ff
Second, for an application under section 32 of the ACAT Act, the Tribunal must take the applicant’s case at its highest. In doing so, I take into account that the second application might ultimately be amended to clarify or incorporate various causes of action additional to that specifically relied upon.
Thus, I have considered both the limitation issue and the abuse of process issue against each of these possible actions and causes of action.
The Limitation Act question
Section 11 of the Limitation Act 1985 (Limitation Act) provides a 6-year timeframe within which most civil dispute applications must be brought. This is referred to as ‘the bar’ on the institution of proceedings:
11 General
(1)Subject to subsection (2), an action on any cause of action is not maintainable if brought after the end of a limitation period of 6 years running from the date when the cause of action first accrues to the plaintiff or to a person through whom he or she claims.
(2)Subsection (1) does not apply to a cause of action in relation to which another limitation period is provided by this Act.
Section 14 of the Limitation Act also provides a time limit for actions on a judgment:
14 Judgment
(1) An action on a cause of action on a judgment is not maintainable if brought after the end of a limitation period of 12 years running from the date when the judgment first becomes enforceable by the plaintiff or by a person through whom he or she claims.
The applicant submitted:
“When did the Cause of Action arise?
1. The deposit of two thousand eight hundred dollars ($2800) was paid to Sulux partnership bank account on 12 November 2015. The Contract for bathroom renovations was, at all times, conditional on appropriately licensed registered principal or staff as required by law for any business in the building/construction industry in ACT.
2. The contract building work commenced 27 November 2015.
3. On 30 November 2015, it was discovered the partnership was unlicensed to carry out the building work, despite representation otherwise where the partnership held out to be a licensed person/s.
4. I submit the accrual of the cause of action arose when the licence position of the partnership became known on 30 November 2015. In the alternative, the contract was void ab initio on payment of the deposit on 12 November 2015 as the partnership was unlicenced. In either event, the provisions of the Limitation Act 1985 (ACT) (the “Act”) commence on either 12 or 30 November 2015. This becomes a factual situation the existence of which entitles one person to obtain from the court a remedy against another person: per Diplock LJ in Letang v Cooper [1965] 1 QB 232. Also see Lord Guest in Central Electricity Board v Halifax Corpn [1963] AC 785 at 806: “the date when a cause of action accrues may be said to be the date on which the plaintiff would be able to issue a statement of claim capable of stating every existing fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment.
5. In the absence of any suspension of the bar, I submit the limitations period would have ended on 11 November or 29 November 2021.”[14]
[14] Applicants’ email of 26 April 2022 8:03 pm
The respondents wrote in their joint submission on the limitation period:
5. …In any event, whatever cause of action might apply, the earliest a cause of action could arise is the formation of the contract (somewhere between 4 October 2015 and 27 November 2015) and the latest the cause of action could arise is the termination of the contract – being 30 November 2015.
5. On that basis, in the ordinary course of events, the limitation period would have started running as early as 4 October 2015 or as late as 30 November 2015.
6. Therefore, the present application is between 94 days and 37 days out of time.
If the second application is characterised as a cause of action on a judgment, as per the judgement debt action, it would have been brought within the 12-year limitation period prescribed by section 14 of the Limitation Act.
For the other causes of action, the general limitation period specified by section 11 of the Limitation Act applies. For the contract action the cause of action accrued at the latest on 30 November, and for the ACL and negligence actions which rely upon the date which loss is suffered, that date would also at the latest apply. For these three causes of action, the second application lodged on 6 January 2022 is clearly brought outside the prescribed time of 6 years. It is, as the respondents submitted, 37 days late.
Section 30 of the Limitation Act provides for the time limit to be automatically suspended or extended – referred to as ‘postponement of the bar’ – when the applicant or plaintiff is ‘under a disability’. Much of the hearing on 20 May 2022 was devoted to discussion on the issue of whether the applicant was ‘under a disability’ in the required sense. Section 30 relevantly provides:
30Disability
(1)Subject to subsections (2) and (3) and subject to section 32, if—
(a)a person has a cause of action; and
(b)the limitation period fixed by this Act for the cause of action has begun to run; and
(c)the person is under a disability;
then—
(d)the running of the limitation period is suspended for the duration of the disability; and
(e)…
(f)in any other case, if, apart from this paragraph, the limitation period would end before the lapse of 3 years after—
(i) the date when he or she last (before the end of the limitation period) ceases to be under a disability; or
(ii) the date of his or her death;
(whichever date is the earlier)—the limitation period is extended so as to end 3 years after the earlier of those dates.
(2) This section applies whenever a person is under a disability, whether or not he or she is under the same or another disability at any time during the limitation period.
The term ‘under a disability’ is defined in the dictionary to the Limitation Act as follows:
under a disability—a person is under a disability—
(a) while the person is under 18 years old; or
(b) while the person is, for a continuous period of 28 days or longer, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in relation to the limitation period for which the question of disability arises because of—
(i)intellectual retardation or disability, mental illness or disorder, brain damage, senility or physical disability; or
(ii)war or warlike operations; or
(iii)circumstances arising out of war or warlike operations.
Although the applicant had initially sought orders for an extension to the time limit, the discretionary power to extend a limitation period is not available for the type of actions contemplated by the second application. Instead, what the applicant seeks is a finding that during the six years she was ‘under a disability’ for:
(a)a continuous period of 37 days; or
(b)at least two continuous periods of 28 days; or
(c)at least one continuous period of at least 28 days in the three years 31 November 2018 – 30 November 2021.
The first question to be addressed, then, is whether the applicant was ‘under a disability’ for a continuous period of 28 days or longer during the six years after the cause of action accrued? If so, when was each such period, and what was its duration?[15]
[15] For completeness, I note that although the applicant did not suggest it, I also turned my mind to whether the COVID-19 pandemic conditions were equivalent to ‘warlike operations’ and thus postponed the bar. In the ACT, which did not experience lockdowns of the kind experienced interstate, and in relation to the ACAT which continued to operate albeit with lodgement by email or post, and hearings by telephone, I do not think this conclusion could be reached.
In New South Wales v Harlum[16] which considered near identical provisions in the NSW legislation, Beazley JA identified the question of incapability or impediment as requiring a determination of whether the person claiming to be under a disability was able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice, and to give instructions about any action. It was a fundamental aspect of bringing a claim that it required the exercise of willpower to initiate the claim and continue with it.
[16] [2007] NSWCA 120
The NSW approach was subsequently approved and adopted by the ACT Supreme Court in Benjamin Luke Brown v Richard Haureliuk.[17]
[17] [2011] ACTSC 9
In Binetter v Binetter,[18] the NSW Court of Appeal stated:
[10] … there are three elements to that limb of the definition of being “under a disability” which are material. First, there must be a disease or impairment of the person’s physical or mental condition….
[11] Secondly, such an impairment had to operate for a continuous period of at least 28 days to render her incapable of, or substantially impeded her in, the management of her affairs….[12] Thirdly, … it was not sufficient that any period of incapacity or substantial impediment related to her ability to look after herself, or to manage her affairs generally. Rather, the incapacity or substantial impediment had to relate to the management of her affairs “in relation to” the cause of action “in respect of” the limitation period.
[18] [2022] NSWCA 169
From the medical evidence lodged by the applicant, and her own statement, I am satisfied that the applicant has suffered from clinically diagnosed mental health conditions including depression, anxiety and post-traumatic stress disorder since at least April 2015. She was also involved in two motor vehicle accidents – one in March 2015 and one in February 2016 – which left her with physical injuries and psychological symptoms of flashbacks, hypervigilance and anxiety.
The applicant provided a letter from her longstanding general practitioner Dr Saburova who stated:
It is my opinion, Evgeniya has sustained complex physical and mental health injuries (beginning in March 2015 and exacerbated in February 2016) all of which have significantly impeded her ability to make rational decisions and manage her personal affairs.
The applicant also provided a report prepared by occupational therapist Dr Rebecca Reay for a NDIS appeal, dated 21 September 2020. In that report Dr Reay commented that the applicant’s “severe symptoms of PTSD, anxiety and depression have negatively impacted on her ability to problem solve, make decisions, and organise her life.”[19]
[19] Page 30 Report of Dr Rebecca Reay
The applicant also provided a report from clinical psychologist Dr Rebecca Fitzpatrick dated 19 April 2022 which stated:
(a)Dr Fitzpatrick has had regular appointments with the applicant since April 2021;
(b)Dr Fitzpatrick has had access to reports from other treating professionals and the assessment by Dr Rebecca Reay;
(c)On the basis of the reports and her own observations of the applicant, Dr Fitzpatrick is of the clinical opinion that the applicant “has been significantly functionally impaired from 2015 to date, and that she has for a period of at least six months during this time, but most likely much longer, been continuously and substantially impeded in the management of her life and affairs, such that she was not able to actively pursue the unpaid default judgment (case XD 270/2016) being adjudicated by the ACAT Tribunal.”
The respondents submitted that this evidence was sufficient to support an inference that the applicant was under a disability for a sufficient period that the bar was postponed until after the date the application was lodged but did not concede the point. The respondents submitted that the medical reports provided by the applicant were relevant and credible, and acknowledged that the respondents were not in a position to offer any contrary medical evidence or to provide a reason for the Tribunal not to accept the medical evidence.
Towards the end of the hearing on 20 May 2022 I indicated that I would conclude from the medical evidence that the applicant was under a disability, however it was not a conclusion I came to easily.
A finding that the applicant is a person under a disability must be made on the civil standard of proof[20], being the balance of probabilities. In describing that standard, sometimes the expression ‘comfortably satisfied’ is used[21]. In reaching the preliminary conclusion on 20 May 2022 that the applicant was a person under a disability, I was most uncomfortable.
[20] Brown v Haureliuk [2011] ACTSC 9; Kotulski v Attard [1981] 1 NSWLR 115
[21] Briginshaw v Brigishaw [1938] HCA 34; (1938) 60 CLR 336
The reasons for this discomfort were twofold:
(a)The medical evidence, while clear in its expression of opinion, was imprecise as to precisely when the applicant was so unwell as to be unable to manage her legal affairs around the particular cause of action. No precise dates were given, and the evidence focussed on the applicant’s capacity to manage herself and her affairs generally, rather than what was necessary to manage this particular cause of action; and
(b)The history of the dispute demonstrated that at the very times when the applicant was said by the medical experts to be most incapable of managing her legal affairs she had terminated the contract, promptly obtained expert opinion, written a precisely articulated letter of demand, instituted legal proceedings with a well-phrased supporting statement attached, obtained default judgment, and brought enforcement proceedings.[22] She had also, in 2021 it seems, exercised her rights to seek review by the Administrative Appeal Tribunal of a decision of the NDIA, with some success.
[22] These steps were undertaken by the applicant personally, under her own signature and not by a lawyer or a personal representative such as a legal guardian. It can be inferred that the persons involved in providing support to the applicant did not consider that she lacked the capacity to make the necessary decisions, and the facts demonstrate that the practical support was available to enable her to access the legal system.
I found it difficult to reconcile the medical evidence, especially the emphatic opinion of Dr Fitzpatrick, with the clear evidence of what the applicant had been capable of doing to manage her legal affairs in the period since November 2015.
This dilemma is not unusual in applications about postponement of the bar. An applicant’s ability to manage other litigation – with or without a litigation guardian or assistance of a solicitor – will always be a relevant consideration but is not determinative[23]. In Harlum, her Honour provided[24] a number of cases in which it was held that a litigant’s ability to institute other legal proceedings did not preclude them being found to be under a disability in relation to different cause of action. The key difference between those cases and the current one, it seems to me, is that the legal proceeding that the applicant was demonstrably able to institute and manage was in key respects identical to that now instituted by the second application.
[23] Further, the test for appointment of a litigation guardian is not the same as the test for a person being ‘under a disability’.
[24] at paragraphs 62 - 68
I am certainly satisfied that the applicant has suffered from and continues to suffer from a number of conditions, which have impeded her ability to make rational decisions and manage her personal affairs. However, I am not satisfied on the evidence that there was even one continuous period of at least 28 days in the six years following accrual of the cause of action during which the applicant was incapable of or substantially impeded in deciding to institute, and managing, the second application. On the contrary, she was clearly capable of doing so on at least one occasion (in relation to the first application). Rather than being under a disability, the applicant acted as a person who is not impeded in the management of her affairs would and did so at the very time when it was suggested she was most incapable.[25][26]
[25] The applicant submitted at the hearing on 20 May 2022, consistent with the medical evidence, that the applicant’s situation had significantly approved in the latter years after NDIS supports were put in place.
The applicant asked that I take a broad-brush approach to the limitation issue, rather than attempting to be satisfied as to particular dates of a 28-day period or particular things the applicant was not able to manage. However, I do not consider that is appropriate. In Binetter v Binetter, Basten AJA wrote:
11. Secondly, such an impairment had to operate for a continuous period of at least 28 days to render her incapable of, or substantially impeded her in, the management of her affairs. There was clearly evidence that from time to time Mrs Wolff was confused and delusional. On more than one occasion she was admitted to hospital. However, unless the period of incapacity or the hospital stay continued for the minimum period, it was not to be measured as part of a period of suspension of the limitation period.
12. Thirdly, and importantly for present purposes, it was not sufficient that any period of incapacity or substantial impediment related to her ability to look after herself, or to manage her affairs generally. Rather, the incapacity or substantial impediment had to relate to the management of her affairs “in relation to” the cause of action “in respect of” the limitation period.
Thus, although I indicated at the hearing on 20 May 2022 that I would find that the bar had been postponed, I find on considering the evidence against the requirements of the legislation that I am not satisfied on the balance of probabilities that the applicant experienced even one continuous 28 day period of being incapable of, or substantially impeded in, the management of her affairs in relation to the second application.
This means that I am not satisfied that for the contract action, the ACL action or the negligence action the second application is brought within time.
The Abuse of Process arguments
Sections 32(1) and (2) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provide:
32Dismissing or striking out applications
(1)This section applies if the tribunal considers that an application, or part of an application is––
(a)frivolous or vexatious; or
(b)lacking in substance; or
(c)otherwise an abuse of process; or
(d)made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
(2)The tribunal may, by order, do 1 or more of the following:
(a)refuse to hear the application or part of the application;
(b)dismiss the application or part of the application;
(c)direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i) within a stated period of time; or
(ii) without the leave of the tribunal.
…
For a strike out application, the onus is on the respondent to satisfy the Tribunal that it should exercise the power available to it.[27] In hearing the strike out application the applicant’s case is taken at its highest.[28] This means it must be assumed that the facts as asserted by applicant are correct. Accordingly, I will assume there to have been a partnership between the applicant and the two respondents and I will assume that the limitation period has been suspended or extended such that the second application is brought within time.
[27] Gindy v Chief Minister & ACT Government and Ors (Discrimination) [2011] ACAT 67
[28] NSW Bar Association v Muirhead (1988) 14 NSWLR 173 at 177
The respondents submitted that the applicant should not be permitted to bring a second action seeking an award of damages for losses for which she had already obtained default judgment. The respondents conceded that the circumstances of the bringing of the second application did not strictly fall within the principles of res judicata, issue estoppel or anshun estoppel but reminded the Tribunal that the concept of ‘abuse of process’ was not confined solely to those principles.
It has been written that ‘the possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed’[29]. The respondents quoted at length from the judgment of Buss JA in Sheraz Pty Ltd v Vegas Enterprises Pty Ltd:[30]
[29] Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279 per French J
[30] [2015] WASCA 4.
4. Every court has inherent or implied power to prevent its procedures being abused. See Hunter v Chief Constable of the West Midlands Police (Lord Diplock); Rogers v The Queen (McHugh J).
5. What will constitute an abuse of process is incapable of being described exhaustively. …
6. The High Court has stated, however, that at least one of three characteristics will be apparent in many cases of abuse of process, namely:
(a)a court's processes being invoked for an illegitimate or collateral purpose;
(b)the use of a court's procedures being unjustifiably oppressive to a party; or
(c)the use of a court's procedures bringing the administration of justice into disrepute.
…
8. Several propositions as to the nature of abuse of process, and what can constitute abuse of process, may be discerned from the reasons of French CJ, Gummow, Hayne and Crennan JJ in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd. First, a court has inherent or implied power to prevent misuse of its procedures in a manner which, although not inconsistent with the literal application of its procedural rules, would nevertheless be 'manifestly unfair to a party to litigation… or would otherwise bring the administration of justice into disrepute among right-thinking people' … Secondly, abuse of process extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment' … Thirdly, the categories of abuse of process are not closed, and a court may exercise its power in relation to an abuse of process 'as and when the administration of justice demands' … Fourthly, the categories of conduct which have attracted the intervention of the courts on the ground of abuse of process have included successive proceedings which cause or are likely to cause 'improper vexation or oppression' …
9. In Reichel v Magrath (1889) 14 App Cas 665, Lord Halsbury LC said:
I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again …
I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure (668).
See also the speech of Lord Watson (668).
10.In Waiton, Mason CJ, Deane and Dawson JJ said the powers of a court in relation to proceedings that are an abuse of process extend to 'all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness' (393). An example given by their Honours of such an abuse of process is where an estoppel cannot be established, but the proceedings in question are unjustifiably oppressive in that it is sought to re‑litigate an issue which has already been disposed of by earlier proceedings.
11.It is well‑established by a long line of authority, including Reichel and Walton, that the principles of abuse of process are not confined by the doctrines of res judicata, issue estoppel and Ashun estoppel. A court may invoke those principles to prevent attempts to litigate an issue which should have been litigated in earlier proceedings, as well as to prevent attempts to re‑litigate an issue which has, in substance, been litigated and determined in earlier proceedings. …
12.Both Reichel and Rippon v Chilcotin Pty Ltd concerned a plaintiff who sought to make a claim in later proceedings based wholly or substantially on the facts of an unsuccessful claim made by the plaintiff in earlier proceedings. The only material difference was that the later proceedings were brought against a different defendant. The later proceedings were dismissed as an abuse of process.
13.MCC Proceeds Inc v Lehman Bros International (Europe) concerned two proceedings in English courts. Both actions arose out of transactions in the shares of Berlitz International Inc (Berlitz), a New York company, involving companies controlled by the late Robert Maxwell.
…
17.Neither of the parties to the second action was a party to the first action. None of the parties to the first action was a party to the second action. However, the plaintiff in the second action (MCC Proceeds Inc) was the successor and assignee of the plaintiff in the first action (Macmillan Inc) in relation to the relevant Berlitz shares and share certificates, and the defendant in the second action (Lehman Bros International (Europe)) was a wholly‑owned subsidiary of SL, one of the defendants in the first action.
18.The shares the subject of the claim in the second action were the same as the shares the subject matter of the claim in the first action.
19.In the Court of Appeal, Mummery LJ (Pill LJ agreeing) held, relevantly, that the second action was an abuse of process because the substantial issue raised in the second action (that is, title to the relevant Berlitz shares) had already been decided, on both law and fact, in the first action in circumstances which precluded MCC Proceeds Inc from attempting to re‑litigate that issue (696).
20.As Mummery LJ noted, the focus in applying the principles of abuse of process should be on matters of substance, not form (695). His Lordship said in relation to the facts of the case before the Court of Appeal:
[T]here was a community of interest between [Lehman Bros International (Europe)] and SL in respect of the Berlitz shares claimed by Macmillan, such that the issue of title to the Berlitz shares and the certificates has been finally resolved as between MCC Proceeds and [Lehman Bros International (Europe)], as well as between Macmillan and SL. SL had control of [Lehman Bros International (Europe)] in relation to the assertions of interest to the subject matter of the first action. There was no valid reason for Macmillan not joining [Lehman Bros International (Europe)] as a defendant to the first action, so that all claims in relation to the title to the Berlitz shares could be decided in the same action and bind all interested parties (696).
…
21.In the present case, I am satisfied, generally for the reasons given by Murphy JA, that, in the circumstances, the commencement and maintenance by the appellant of the Supreme Court action against the respondent was seriously and unfairly burdensome or unjustifiably oppressive to the respondent; the action was an abuse of process; and the master's decision to dismiss the appellant's claim and enter judgment for the respondent was correct.[31]
[31] Citations largely omitted for readability
Relying on this authority, the respondents submitted that if there was a partnership between the respondents and John Luxford, this was an issue that should have been raised in the first application, because it was a claim in contract and the first and fundamental issue in a contract claim is specifying who the parties to the contract are. Further, they submitted that the first application determined that the parties to the contract were simply the applicant and John Luxford, and to allow the second application to proceed and prove otherwise opened up the possibility of incompatible judgments from the same Tribunal involving the same circumstances. It was submitted that a proceeding by the same applicant, seeking a judgment incompatible with an existing judgment, was necessarily an abuse of process.
The respondents pointed out that the underlying circumstances of the first and second application are the same, although the responding parties are different, and reasoned that if the authorities show it is an abuse of process to bring a second claim where a first had been unsuccessful, it was more so an abuse of process where the first action had been successful. The respondents submitted that the law abhors such a multiplicity of proceedings, and multiple judgments.
For these reasons, the respondents submitted that the second application must be an abuse of process.
The applicant submitted[32] that the second application was not an abuse of process because:
(a)It was not brought for an ulterior purpose;
(b)It was not doomed to fail[33]; and
(c)With reference to the medical evidence, it was brought within time.
[32] In her email of 29 April 2022 9:27 am
[33] Walton v Gardiner (1993) 177 CLR 378
The applicant acknowledged that an abuse of process might include an attempt to re-litigate issues that have already been determined; an attempt to litigate proceedings which could have/should have been litigated in previous proceedings; and proceedings, although not giving rise to an estoppel, the continuance of which would be unjustifiably vexatious and oppressive. The applicant also referred to the judgment of Lord Diplock in Hunter v Chief Constable of the West Midlands Police.[34] By implication, the applicant submitted that the second application did not fall within any of these categories.
[34] [1981] UKHL 13
The applicant’s submission concluded by pointing out that “while the value of the claim is relatively small, it means very much to a disability pensioner particularly as the level of inflation rises. Additionally, I am determined not only for justice, but justice being seen to be done to assist vulnerable persons who unwittingly use unlicenced tradesmen. The amendment of the relief sought to only seek the amount of the judgement awarded, also, in my opinion, makes the issue of any attempt to re litigate the original claim, moot.”
Having regard to the parties’ submissions and the cited authorities, in the circumstances of this case I am satisfied that each of the possible actions brought by the second application falls within the operation of section 32 of the ACAT Act and it is appropriate that the second application should be dismissed.
First, the contract action and the judgment debt can be considered to be ‘frivolous or vexatious’, because each is ‘doomed to fail’[35]. This is because of the combined effect of the principles of election and contract, and the Partnership Act 1963.
[35] An action that is doomed to fail is frivolous and vexatious - see for example Abrahams v Comcare (2006) 93 ALD 147; P v Registrar of Firearms [2018] ACAT 74
The applicant asserted that the partners are jointly and severally responsible for debts of the partnership, but this is not a correct summation of the law in the ACT. Section 13 of the Partnership Act provides that partners are only jointly liable for partnership debts:
13Liability of partner
(1)Each partner in a firm other than an incorporated limited partnership is liable jointly with the other partners in the firm for the debts and obligations of the firm incurred while the partner is a partner.
(2)If the partner is an individual, after the partner’s death the dead partner’s estate is severally liable in the due course of administration for the debts and obligations of the firm incurred while the dead partner was a partner that remain unsatisfied, but subject to the earlier payment of the dead partner’s separate debts.
A claim brought against a partnership should name all of the partners against whom a judgment is sought, because once that election is made and the claim is determined all rights against all of the partners (both named and unnamed) are merged in the judgment[36]. No further claims can be brought on the same action and cause of action against the unnamed partners, because the liability no longer exists[37].
[36] Fletcher, The Law of Partnership in Australia, 9th Ed, 2007 at [6.55]
[37] Kendall v Hamilton (1879) 4 App Cas 504; Powell v Aymkone Pty Ltd (unreported) [2008] NSWSC 1270
This means that when judgment was entered on the first application in contract[38] against John Luxford all of the rights of the applicant against the other partners for the breach of contract were merged in the judgment against the one partner, John Luxford. The contractual cause of action no longer exists as between the applicant and unnamed partners. The claim in contract against the respondents is ‘manifestly groundless and bound to fail’ such that it must be dismissed.[39][40]
[38] I have treated the first application as being only in contract because this is the approach that takes the applicant’s case at its highest.
[39] General Steel Inc v Commissioner for Railways (NSW) (1964) HCA 69; CLR 125
Turning to the judgment debt action, a judgment is generally enforceable only against the persons named in it. Absent a judgment naming them personally[41] or some other legal provision[42], the partners of a judgment debtor do not have a legal obligation to pay the judgment debt to the judgment creditor.
[41] or naming the partnership business in accordance with any applicable Court Procedures Rules
[42] Such as a guarantee or specific statutory provision
The applicant relies upon section 13 of the Partnership Act as a source of liability which continues notwithstanding an election being made not to include the partners in the proceeding in which the judgment is entered. I have been unable to find any precedent for section 13 – or its equivalent – being utilised in such a way. This interpretation and application of section 13 would run counter to the legal approach confirmed since 1879, and which has continued to be taken in the ACT despite the passage of partnership legislation. It is so significant a change from the historic position that one would expect there to be an indication in the explanatory material to the Partnership Act that this was intended. There is no such indication. Neither party provided an authority which demonstrated such a cause of action being maintainable.
I consider that the novel approach urged by the applicant is misconceived. The judgment debt action thus is also doomed to failure and must be dismissed on the basis that it is consequently a frivolous and vexatious application.
I turn next to consider the ACL and negligence actions. While the obtaining of judgment against John Luxford merged all rights against the partners in the claim in contract, it does not prevent a different claim being brought against the partners, albeit relying on many of the same facts. However, as the extract from Sheraz above demonstrates, the bringing of a claim relying on different law but the same facts, even involving different parties, may sometimes be considered an abuse of process.
The causes of action in consumer law and negligence fall within the operation of section 16 of the Partnership Act which provides that liability of the partners is both joint and several. These causes of action are not extinguished by the entry of judgment on the first application but remain available to the applicant.
The applicant stated at the hearing on 20 May 2022 that she was aware from the outset that John Luxford was in partnership with the second respondent. All of the facts on which the applicant relies to imply the existence of a partnership were known to her in 2015 or easily discoverable. That being the case, it is unreasonable for the applicant not to have included the respondents in the first application and to instead bring a claim against them, on the same facts, so many years after the events in question.
If actions in negligence or under the Consumer Law were to be brought on the same facts, even only against John Luxford, it would be both unreasonable and contrary to the public interest in the efficient conduct of proceedings to do so this many years after bringing the first application. Those claims could and should have been included in the earlier proceeding.
It is also significant that, unlike the applicant who had the ability to obtain evidence to support her claim at the time the contract was terminated, the respondents are now faced with defending a proceeding some six years after the work was done, without the opportunity to obtain their own photographs, experts reports, or inspection of the work as conducted. The passage of time, and subsequent events including the dissolution of the marriage, may mean that evidence necessary to defend the claim is no longer available or considered reliable. The delay in bringing the second application, although strictly within time, produces a manifest unfairness to the responding parties.
It is also relevant to consider the amount in dispute which is objectively small, although there is the importance of that sum to the applicant as detailed in her submissions.
Balancing all of these considerations, I am satisfied that while the second application has been brought genuinely and with no improper purpose in mind, the institution and maintenance of the proceedings at this late stage, given the prior litigation, is unjustifiably oppressive to the respondents. In this respect, any and all of the actions that may be constituted by the second application are an ‘abuse of process’ and it should be dismissed.
Conclusion
The second application is currently brought as an action on a judgment debt, relying on the joint liability of partners. For the purposes of the strike out application I have taken into account three additional actions which might be included in the second application.
The second application was lodged 37 days outside the relevant time limit. Although the applicant clearly suffered from medical conditions during the period in which the second application could be brought, I am not satisfied that she was ‘under a disability’ for at least one 28-day period such that the limitation period was extended or suspended. This means that the second application is out of time for three of the four actions which it might constitute, and insofar as it includes those claims they should be dismissed accordingly.
In relation to the four actions which the second application might consist of, each is an abuse of process and should be dismissed because of the delay in bringing it, the existence of the earlier action, and the relief sought. In addition, the contract action and judgment debt action would be doomed to fail and should also be dismissed on the basis that they are frivolous and vexatious.
………………………………..
Presidential Member MT Daniel
| Date(s) of hearing: | 20 May 2022 |
| Representative for the Applicant: | Mr R Gibson |
| Solicitors for the Respondent: | Mr J Raine, Raine Litigation Lawyers |
[26] It is also a relevant consideration to consider how a person not impeded in the management of their legal affairs would have acted.
[40] The same reasoning applies to the judgment debt action, to the extent it is a stalking horse for the contract action.
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