McMillan v Su & Anor (Civil Dispute)

In the case of McMillan v Su & Anor, the applicant, McMillan, sought to bring a substantive application against the respondents, Su and another, out of time. The dispute centred around an alleged partnership, with McMillan asserting that the respondents owed him money due to the partnership. The Australian Capital Territory Civil and Administrative Tribunal (ACAT) was tasked with deciding whether the application could proceed, considering the bar on bringing actions outside the statutory time limits.

The legal issues at hand were whether McMillan was "under a disability" that justified postponing the bar on bringing the application, and whether bringing the second application constituted an abuse of process. The Tribunal considered the implications of a prior judgment obtained against one partner, the effect of the merger of rights in that judgment, and the potential for multiple proceedings based on the same disputed facts. The Tribunal also evaluated the nature of the second application, which could potentially be seen as a preliminary discovery application or a substantive action based on various legal grounds.

The Tribunal ultimately decided that the second application was not a contract application but rather an assertion of an unpaid debt, relying on the existence of the default judgment and provisions in the Partnership Act. The Tribunal found that the second application could form the basis for multiple actions, including a judgment debt action, a contract action, an Australian Consumer Law action, and a negligent misstatement action. The Tribunal concluded that the second application was an abuse of process, given that it could lead to multiple proceedings about the same disputed facts. Therefore, the application was dismissed.

The Tribunal ordered that the application lodged on 6 January 2022 be dismissed. This decision underscores the importance of identifying the true legal basis of a claim and avoiding multiple proceedings based on the same disputed facts, while also highlighting the Tribunal's duty to make parties aware of the real legal basis of their claims and to provide appropriate directions for the dispute to be prepared for conference, mediation, or hearing.