Pusey v Bayside Cabinet Makers
[2018] VSC 28
•5 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 01998
| RICHARD PUSEY | Plaintiff |
| v | |
| BAYSIDE CABINET MAKERS PTY LTD (ACN 154 170 180) | Defendant |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 February 2018 |
DATE OF JUDGMENT: | 5 February 2018 |
CASE MAY BE CITED AS: | Pusey v Bayside Cabinet Makers |
MEDIUM NEUTRAL CITATION: | [2018] VSC 28 |
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CATCHWORDS
JUDICIAL REVIEW AND APPEALS – Anshun estoppel – Abuse of process – Applicant failed to attend hearings – Leave to appeal from a decision of the Victorian Civil and Administrative Tribunal – No real or significant argument that error of law exists – No question of law of general or public importance – Application for leave to appeal dismissed – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Baker | Altus Lawyers |
| For the Defendant | Mr T Templeton in person |
HIS HONOUR:
Introduction
The plaintiff, Mr Richard Pusey, applies for leave to appeal, and if granted, appeals from the decision of a member of the Victorian Civil and Administrative Tribunal (‘the Tribunal’), dated 28 April 2017 in proceeding C4755/2016 (‘the proceeding’).[1]
[1]Pusey v Bayside Cabinet Makers Pty Ltd [2017] VCAT 590 (‘Tribunal decision’).
In 2014, Mr Pusey contracted with the defendant, Bayside Cabinet Makers Pty Ltd (‘Bayside’), to supply and install a kitchen at a residential property in Mitcham at an agreed cost of $12,606.00. On 20 October 2014, Mr Pusey paid a deposit of $6,600.00 and on 1 December 2014 the kitchen was installed. There were then a series of adjustments and changes undertaken by Bayside at Mr Pusey’s request. Mr Pusey expressed concerns as to the joinery, particularly gaps in doors, insufficient tightness of the drawers to the base, insufficient darkness of colour shade, and the location of downlights installed by the electrician. On 27 May 2015, Mr Pusey advised Bayside that he would not pay the remaining balance of $6,006.00.
The first Tribunal proceeding
Application and hearing of the proceeding
On 30 October 2015, Bayside issued an application in the Tribunal, proceeding C5362/2015 (‘the first proceeding’), claiming an amount of $6,006.00. Under the heading of ‘What is the problem with the goods and/or services?’, Bayside’s application detailed Mr Pusey’s lack of satisfaction with the kitchen as installed, stating that Bayside had been back many times and made changes at the ‘clients [sic] cost and permission’. The application listed various defects alleged by Mr Pusey, concluding that ‘Ultimately the client just wont pay’, and that ‘Richard is not interested in [p]aying’.
Mr Pusey did not file or give notice of any defence in the first proceeding, which was listed for hearing by the Tribunal at the Frankston Magistrates’ Court on 1 March 2016. In an email to the Tribunal at 3:53pm the day before the hearing, Mr Pusey sought an adjournment for medical reasons. He did not provide any medical evidence in support of his proposed non-attendance. The hearing proceeded, and the Tribunal member considered and refused the email application for adjournment. The reason stated in her order was that ‘there was no supporting documentation’. She then proceeded to hear the claim unopposed, including evidence given on behalf of Bayside, ordering Mr Pusey to pay Bayside the sum of $6,006.00 and reimburse Bayside’s application fee of $174.10.
Application for review of the order to pay
On 6 April 2016, Mr Pusey applied to the Tribunal by email for review of the orders made against him.[2] At the request of the Tribunal registry, he subsequently completed a statutory declaration in support of his application. The statutory declaration was later described by a Tribunal member as having ‘been completed in a hurry and without much attention to detail’.[3]
[2]Under s 120 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’), ‘a person in respect of whom an order is made may apply to the Tribunal for a review of the order if the person did not appear and was not represented at a hearing at which the order was made’.
[3]Tribunal decision, [7].
On 31 May 2016, the Tribunal listed the application for hearing on 22 July 2016. Three weeks before the hearing, Mr Pusey requested an adjournment until ‘early next year’ while he arranged a counterclaim. He stated that he would be away on 22 July 2016 and could not appear. He gave no detail of any counterclaim and no explanation why he could not appear.
On 14 July 2016, one week before the hearing, Mr Pusey’s lawyers applied for an adjournment until a date after January 2017 on the basis that they had recently been appointed; that Mr Pusey would be overseas from 18 July until 3 August 2016, and that further time was needed to prepare a counterclaim. They were unable to state what period of time was required.[4]
[4]Ibid [8].
Bayside strongly objected to the adjournment request, pointing out that Mr Pusey’s airline tickets were purchased on 29 June 2016, almost a month after the Tribunal sent out notices of hearing on 31 May 2016.[5]
[5]Ibid [9].
On 15 July 2016, the Tribunal refused Mr Pusey’s request for an adjournment and confirmed the hearing on 22 July 2016. Another adjournment application was made by Mr Pusey’s legal practitioner on 19 July 2016. On 20 July 2016 the Tribunal refused the request for an adjournment and again confirmed the hearing on 22 July 2016.
The hearing proceeded, with Mr Pusey’s legal representative in attendance, who advised that he had been unable to obtain medical evidence in support of Mr Pusey’s application for review based on a medical appointment. He advised that Mr Pusey had a reasonable case to argue, but produced no evidence.[6]
[6]Ibid [13].
The Tribunal then heard the application for review. Under s 120(4)(a)(i) of the VCAT Act, it is necessary for the Tribunal to be satisfied that an applicant for review had a ‘reasonable excuse for not attending or being represented at the hearing’. It is also necessary that an application for review under s 120 of the VCAT Act be made within 14 days of the applicant becoming aware of the order.[7] In the absence of any evidence, the Tribunal was not satisfied that Mr Pusey had shown a reasonable excuse for not attending the hearing of the first proceeding or for non-compliance with the 14 day time limit to initiate the application for review.[8] Consequently, Mr Pusey’s application for review of the Tribunal order of 1 March 2016 was dismissed.[9]
[7]Victorian Civil and Administrative Tribunal Rules 2008 (Vic) (‘VCAT Rules’) r 4.19(1).
[8]Under the VCAT Act s 126, and the VCAT Rules r 4.20(1) the Tribunal can extend a time limit fixed under the Rules.
[9]Tribunal decision, [14].
Mr Pusey made two further attempts to re-open and review the Tribunal’s order of 1 March 2016. They were initiated by email on 4 August 2016 and 16 August 2016 when he belatedly provided a medical certificate dated 29 February 2016 in support of his failure to appear on 1 March 2016. Inevitably, the Tribunal found that both applications were misconceived and an abuse of process.[10]
[10]Ibid [15]–[17].
Mr Pusey does not seek to challenge any Tribunal process or decision relating to the first proceeding. However, the circumstances of first proceeding are an important part of the factual matrix relating to the second proceeding.
The second proceeding
On 4 August 2016, Mr Pusey filed a new application with the Tribunal, proceeding C4755/2016 (‘the second proceeding’). The application alleged that the kitchen cabinets were ‘not as per order’, defective and of poor quality, claiming $35,500.00 against Bayside.[11]
[11]Ibid [19].
The second proceeding was listed for directions on 23 November 2016, but adjourned to 7 December 2016 at Mr Pusey’s request. On 14 December 2016, Bayside applied under s 75 of the VCAT Act for the second proceeding to be struck out. Bayside’s application was heard by the Tribunal on 23 March 2017, and was successful. The second proceeding was dismissed by the Tribunal on 28 April 2017. It is the dismissal of the second proceeding by the Tribunal that Mr Pusey seeks to challenge.
The Tribunal decision
After referring to relevant authority,[12] the Tribunal held that an Anshun estoppel arose. Some of the key findings of the Tribunal were:
An Anshun estoppel will thus be established if the matters relied upon as a defence or claim in Mr Pusey’s claim were so connected to the subject matter of Bayside’s claim that it would have been unreasonable in the context of Bayside’s claim for the relevant claim not to have been made or the issue not to have been raised by Mr Pusey in Bayside’s claim.
The issues set out in Mr Pusey’s Points of Claim all relate to the details of the agreement, the goods and services supplied by Bayside and the quality of those goods and services. Whilst there may not have been findings made in the order of 1 March 2016, at the hearing on that day Bayside established its claim as to the details of the agreement and what it was to provide and at what price, and it successfully obtained an order that Mr Pusey pay Bayside $6006.00.
The issues now raised in Mr Pusey’s claim cannot be heard without revisiting the details of the agreement heard and determined in Mr Pusey’s absence on 1 March 2016. In those circumstances it is unreasonable for Mr Pusey not to have raised the issues in the Bayside claim to which they were intimately connected. Mr Pusey could and should have raised those issues at the time, as they may have had a material bearing on the ultimate outcome. He had many opportunities but chose not to do so. He provided no defence, and he made no effort to articulate any counterclaim so that it could be heard at the same time as existing proceedings relating to the same issues. I find that he is estopped from raising those issues again.[13]
[12]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (‘Anshun’); Kanakaridis v Westpac Banking Corporation [2015] FCA 1146; Sgargetta v Thomas [2015] VCAT 357.
[13]Tribunal decision, [29]–[31].
The Tribunal also held that the reopening of the dispute by initiating the second proceeding was an abuse of process. After listing the failures and omissions that had occurred, the Tribunal held:
Mr Pusey’s actions throughout Bayside’s claim indicate a disregard of the Tribunal’s processes and a lack of attention to detail. They demonstrate a consistent attempt to put the matter off until at his own convenience he could articulate his own claim in relation to a kitchen that had been installed, at his own request, in December 2014 and for which he had only paid a deposit of 50%. He did not articulate any such claim until after Bayside’s claim was all over. He now seeks to pursue his own claim when it was through his own actions that all the matters in issue were not dealt with in the proceedings that were already on foot. In addition to these actions giving rise to an Anshun estoppel they also constitute an attempt to re-agitate an issue that has already been decided. This is an abuse of process.[14]
[14]Ibid [38].
Grounds of review
In an originating motion, Mr Pusey seeks leave to appeal the Tribunal’s decision and orders made on 28 April 2017 in the second proceeding. He relies on one proposed question of law and two grounds of appeal in his application for leave, as set out in a proposed notice of appeal. The proposed question is:
Did the Tribunal exercise its discretion under section 75 of the Act according to law by:
a. applying the correct legal principles in determining the [applicant] was estopped from bringing his claim; and
b.deciding that the [applicant’s] actions in [the first proceeding] amounted to an abuse of process.
The proposed grounds of appeal are:
1.The Tribunal erred in finding that the [applicant] was estopped from bringing his claim against the [respondent] when:
a.there was no relevant findings of fact or law; and
b.the judgment in the [first proceeding] was in effect a default judgment.
2.The Tribunal erred in finding that the [applicant’s] actions in the [first proceeding] amounted to an abuse of process because it was not open for it to conclude that the [applicant’s] actions indicated:
a. a disregard of the Tribunal’s processes;
b. lack of attention to detail; and
c. a consistent attempt to delay the Tribunal.
Applications for leave to appeal
In Secretary to the Department of Premier and Cabinet v Hulls,[15] the Court of Appeal gave detailed consideration to the question of when leave to appeal will be granted under s 148(1) of the VCAT Act. A pivotal requirement is that an applicant must identify a question of law for which there is a real or significant argument to be put that error exists.[16] The Court will also have regard to the justice of the particular case,[17] and whether the applicant has identified a question of law that is of general or public importance.[18] The applicant must show that there is sufficient doubt attendant to the question of law to justify the grant of leave.[19] The Hulls decision applies to the present case.[20]
[15][1999] 3 VR 331 (‘Hulls’).
[16]Ibid 335 [10].
[17]Ibid 337 [16].
[18]Ibid 335–336 [11].
[19]Ibid 335 [10]; See Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48, 55–56 [28]–[30]; Metricon Homes Pty Ltd v Softley (2016) VR 746 751–755 [11]–[21], 770 [69] (‘Metricon’).
[20]Ibid; see also Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167, 182 [51].
Mr Pusey’s submissions
As to the first ground, counsel for Mr Pusey submitted that the Tribunal failed to take into consideration the extent to which the determination of the first proceeding was effectively a default judgment. While the Tribunal had correctly stated the law concerning Anshun estoppel, the case was inapposite to Anshun estoppel, as no findings of fact or law were made. Additionally, while Mr Pusey’s conduct fell short of what one would expect from a responsible litigant in ideal circumstances, counsel submitted that it fell short of the high bar for summary dismissal that Courts have set.
Bayside’s submissions
Mr Templeton appeared in person for Bayside and opposed the application. He said that he gave evidence at the first Tribunal hearing. He was concerned and frustrated about the number of opportunities given to Mr Pusey to raise the matter again and again, and the cost to his business of his repeated absences to attend hearings.
The proposed question of law
The proposed question of law is concerned with whether the Tribunal, in exercising its discretion under s 75 of the VCAT Act, applied the correct legal principles in reaching the view that there was an Anshun estoppel, and as to whether the finding of abuse of process was erroneous.
Before going further, it is appropriate to say that the proposed question of law, while important to the parties, does not have general or public importance. The dispute concerns a domestic building agreement between a property owner and a cabinet maker.
Ground 1 – Anshun estoppel
In his outline of argument, counsel for Mr Pusey acknowledged that the law concerning Anshun estoppel, as pronounced in Port of Melbourne Authority v Anshun (‘Anshun’),[21] is largely settled and was correctly stated by the Tribunal. In its reasons, the Tribunal set out the well-known passage in Anshun where the High Court confirmed the principles set out in Henderson v Henderson:
Where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgement, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.[22]
[21](1981) 147 CLR 589.
[22]Henderson v Henderson [1843] Eng R 919, cited in Anshun (1981) 147 CLR 589.
Counsel also referred to the decision of the House of Lords in the decision of New Brunswick Railway Co v British and French Trust Corporation Ltd, where Lord Maugham, L.C. said:
My Lords, I think that there is much to be urged in favour of the observation made by Willes J, in Howlett v Tarte, though it may have been a little too widely expressed. He said:
'It is quite right that a defendant should be estopped from setting up in the same action a defence which he might have pleaded but has chosen to let the proper time go by. But nobody ever heard of a defendant being precluded from setting up a defence in a second action because he did not avail himself of the opportunity of setting it up in the first action.'
In my opinion, we are at least justified in holding that the estoppel in such a case must be very carefully limited. The true principle in such a case would seem to be that the defendant is estopped from setting up in a subsequent action a defence which was necessarily, and with complete precision, decided by the previous judgment. If that be the principle, the appellants are not, in the present case, estopped from raising any contention they think fit in an action on the 992 bonds. [23]
However, the position here is that of an Anshun estoppel where the applicant had every opportunity on two previous occasions to attend the Tribunal to present his case but failed without proper explanation to do so.
[23]New Brunswick Railway Co v British and French Trust Corporation Ltd [1938] 4 All ER 747, 755–756, quoting Howlett v Tarte (1861) 142 ER 673, 827.
The Tribunal referred to a passage in Kanakaridis v Westpac Banking Corporation, where Beach J said:
An Anshun estoppel arises where the matter relied upon as a defence or claim in the second action was so connected to the subject matter of the first action that it would have been unreasonable in the context of the first action for the relevant claim not to have been made or the issue not to have been raised in the first action. The question is whether it would have been expected that the matters raised in the second action should have been raised in the first action to enable all issues or related issues to be determined in the one proceeding. Parties to litigation are expected to bring forward their whole case. It is not appropriate to permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest where it was unreasonable not to have agitated such issues in the earlier case. The question is whether there was a basis for the applicants justifiably refraining from litigating in the Supreme Court proceedings what they now want to litigate in the proceeding before me. There was no such basis in relation to the Brighton property and the South Melbourne property.[24]
[24]Kanakaridis v Westpac Banking Corporation [2015] FCA 1146, [64] (citations omitted), citing Anshun (1981) 147 CLR 589, 602–603 (Gibbs CJ, Mason and Aickin JJ).
I am of the view that proposed ground 1 has no substance:
(a) The issues and concerns raised by Mr Pusey in the second proceeding regarding the quality of work were always central to the first proceeding. They were set out in writing by Bayside in its initial application to the Tribunal.
(b) At all times the main dispute between the parties has related to the way the work was completed. More specifically, the dispute concerns whether the kitchen manufactured and installed by Bayside was fit for purpose, installed with a set of five cascading drawers, compatible with the appliances to be installed, and of industry standard. These issues were appropriately raised by Bayside at the outset of the first proceeding, and could and should have been addressed by Mr Pusey in the context of that proceeding.
(c) There were many opportunities during the first proceeding for Mr Pusey to put his case. The Tribunal can only provide the opportunity for parties to make and present their case. It cannot compel parties to take advantage of the opportunities provided.
(d) Points of claim in a consumer claim are usually expressed in a simple form. Mr Pusey’s points of claim were first filed over 9 months after the orders were made in the first proceeding. They relate to quotations given and accepted in 2015 and could readily have been provided much earlier during the first proceeding.
(e) There is no suggestion of legal misdirection by the Tribunal made by Mr Pusey. The Tribunal correctly stated and applied the law in determining that there was an Anshun estoppel.
(f) The argument that the Tribunal’s decision in the first proceeding was a default judgment or akin to a default judgment is incorrect. It was a decision given on an unopposed basis, Mr Pusey having failed to contest the claim or attend hearings.
(g) In the present proceeding, Mr Pusey bears the onus of proof.[25] He is required to provide the Court with relevant documents, including the transcript. In directions given on 21 June 2017 he was directed to file and serve the transcript on which he relied. However, he has not provided the Court with the transcript of the Tribunal hearing on 1 March 2016 where the first proceeding was decided on the merits and adversely to Mr Pusey. No explanation was given as to the failure to provide transcript. As Dixon J said in Navaratne v Asian Pacific Properties Investment Pty Ltd,[26] it is not the court’s role to prove the applicant’s case for him.
[25]Navaratne v Asian Pacific Properties Investment Pty Ltd [2014] VSC 638, [51], [54].
[26][2014] VSC 638 16 [54]; see also Giampaolo v Esanda Finance Corporation [2001] VSC 71, [25].
(h) Bayside’s claim for $6,006.00 is a small claim under the Australian Consumer Law.[27] Legal representation for such a small claim is only permissible in very limited circumstances.[28] The Tribunal 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.[29]
(i) The Tribunal annually hears and decides thousands of consumer claims quickly and efficiently. Mr Pusey had ample opportunity to present his case at the Tribunal at or prior to the hearing on 1 March 2016. He then had a second full opportunity to present his case at the review and rehearing by a different member on 22 July 2016. He failed to utilise either opportunity.
(j) What is fair and just must be considered from Bayside’s perspective as well as from that of Mr Pusey. It is important to the administration of justice that the costs incurred and the amount of time committed to the resolution of a small claim, such as that brought by Bayside, be kept under strict control. There must be a limit to legal exposure, the magnitude of costs, and the loss of time that a party must accept in resolving a small consumer-trader, or trader-consumer dispute.
[27]Australian Consumer Law and Fair Trading Act 2012 (Vic) ch 7.
[28]VCAT Act pt 2AB cl 4D.
[29]VCAT Act s 98(1)(d).
In the circumstances, justice favours the refusal of leave. I will not grant leave in relation to ground 1.
Ground 2 – abuse of process
The Tribunal has power to summarily dismiss a proceeding where it is of the opinion that the proceeding is an abuse of process.[30] The legal principles relating to abuse of process are comprehensively summarised by Robson J in Re AWB Ltd (No 10),[31] and were followed by J Forrest J in Crespin v Francis.[32]
[30]VCAT Act s 75(1)(b).
[31][2009] VSC 566, [264].
[32][2016] VSC 277, [43]–[44].
The principles summarised by Robson J include:
(a) the circumstances in which abuse of process may arise are extremely varied and the courts have refrained from limiting the circumstances to fixed categories;
(b) it is prima facie vexatious to bring two extant civil actions where only one will lie;
(c) the prima facie rule applies whether or not the two proceedings are in separate courts or one;
(d) the prima facie rule applies where the issues overlap or significantly overlap or there is a similarity of the subject matters of the proceedings;
(e) in considering whether the rule should apply, the court should consider whether there was no reasonable justification for the second proceeding based on legitimate considerations of convenience, cost or the like; and
(f) the guiding considerations are oppression and unfairness to the other party and concern for the integrity of the system of administration of justice.[33]
[33]Re AWB Ltd (No 10) [2009] VSC 566, [264] (citations omitted).
In relation to the guiding considerations described in (f) above, Robson J referred to a number of factors to which regard may be had. They include:
(a) the importance of the issues;
(b) the opportunity available and taken to fully litigate the issue;
(c) the terms and finality of the finding as to the issue;
(d) the identity between the relevant issues in the two proceedings;
(e) any plea of fresh evidence;
(f) the extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.
Counsel for Mr Pusey referred the Court to two other cases. In Tomlinson v Ramsey Food Processing, the High Court said:
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.[34]
[34]Tomlinson v Ramsey Food Processing (2015) 256 CLR 507, 518–519 [25]–[26] (citations omitted).
In Mango Boulevard Pty Ltd v Spencer (‘Mango Boulevard’),[35] the Court of Appeal of the Supreme Court of Queensland was concerned with a judgment entered after a party had failed to comply with an order of the Court. The Court said:
The principles discussed in Aon provide a rational basis for a rule that, where a claim or defence is dismissed or struck out as an abuse of process, the defaulting party should not be permitted to re-agitate the issues central to the claim or defence. The doctrines of res judicata and issue estoppel are both founded in the public interest in finality in judicial determinations and on the right of the individual to be protected from vexatious and oppressive conduct arising from re-litigating the same issues.
Abuses of process, however, may be perpetrated in a great many ways. Where the conduct which constitutes the abuse has ceased, it is apparent that the innocent party may not be prejudiced by the defaulting party being permitted to prosecute its claim or mount its defence. It may be, as appears to be the case here, that the abandonment of parts of the claim or defence may mark the end of the difficulties which led to the finding of abuse of process.
The interests of justice are likely to be better served if courts have the ability to assess whether the further agitation of a claim or defence, dismissed otherwise than on the merits, amounts to an abuse of process than by an inflexible rule which results in the irretrievable loss of a defaulting party’s rights in respect of the matters the subject of a claim or defence struck out or dismissed for abuse of process.[36]
[35][2010] QCA 207.
[36]Ibid [58]–[60].
It is important to note that the Court of Appeal was not addressing the circumstances that arise in this case, where Mr Pusey has twice had the opportunity of attending a final hearing for the adjudication of the merits of the dispute, but has on each occasion failed to attend or provide evidence that might support his case. The situation where a party given ample notice of a final hearing fails to respond or appear is very different from the circumstances which arose in Mango Boulevard.[37] Here, the scales of justice firmly favour the public interest of finality in judicial determinations, and the right of the individual to be protected from vexatious and oppressive conduct arising from a third litigation of the same issues.
[37][2010] QCA 207.
In the present case, the Tribunal found on the facts that:
(a) Mr Pusey conceded at the hearing, and in the submissions, that the order of 1 March 2016 was validly made in his absence, and that attempts to challenge that order had failed;[38]
[38]Tribunal decision [35].
(b) Mr Pusey did not provide any defence to Bayside’s claim and did not articulate a counterclaim until it was all over;[39]
[39]Ibid [36].
(c) no evidence was provided in support of his stated intention not to appear at the hearing of 1 March 2016;[40]
[40]Ibid.
(d) his application for review was made with little attention to detail and without any supporting evidence;[41]
[41]Ibid.
(e) although he instructed lawyers to have the hearing adjourned for six months while he arranged a counterclaim, he provided them with no instructions on the counterclaim;[42]
[42]Ibid.
(f) he did not provide his lawyers with instructions to appear on his behalf at the hearing of his own application for review on 22 July 2016 – but only to seek an adjournment;[43]
[43]Ibid [37].
(g) when his application for review was dismissed, he sought twice more to have the matter reopened;[44]
[44]Ibid.
(h) he did not provide his lawyers with sufficient instructions to enable the points of claim to be filed on the dates ordered by the Tribunal;[45]
[45]Ibid.
(i) Mr Pusey’s actions throughout Bayside’s claim indicate a disregard of the Tribunal’s processes and a lack of attention to detail;[46]
(j) his actions demonstrate a consistent attempt to put the matter off until at his own convenience he could articulate his own claim in relation to a kitchen that had been installed at his own request in December 2014; [47] and
(k) Mr Pusey’s actions constitute an attempt to reagitate an issue that has already been decided.[48]
[46]Ibid [38].
[47]Ibid.
[48]Ibid.
In my view, the observations made by the Tribunal were open to it, and were appropriate having regard to the facts relating to the first and second proceedings. As for Mr Pusey’s conduct during the first proceeding, he clearly disregarded procedures; did not file a defence or present a case at any time; and he did not avail himself to the opportunities available to him. His lack of diligence is well illustrated by his failure to provide information or relevant documents in support of his application for review under s 120 of the VCAT Act. His statutory declaration of 21 April 2016 is cursory at best. It is clear that he continuously sought to postpone the resolution of the dispute during the first proceeding.
In my view, the Tribunal’s findings were open to it and were factual observations about Mr Pusey’s conduct. It is conceded that his conduct falls short of what one would expect from a responsible litigant in ideal circumstances.
In the circumstances, justice favours the refusal of leave in relation to ground 2.
Conclusion
In my view, there is no real or significant argument to be put that there is an error of law proposed to be raised by Mr Pusey. The Tribunal’s decision is not attended with sufficient doubt to justify the grant of leave. Additionally, it would not be fair or just to Bayside in the circumstances of its small claim to grant leave to appeal. There is no general or public importance in the question and issues raised in this proceeding.
The application by Mr Pusey for leave to appeal from the Tribunal decision and originating motion are dismissed.
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