Skinner v Stillwell Motor Group Cars Australia Pty Limited - [2012] FMCA 194

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SKINNER v STILLWELL MOTOR GROUP CARS AUSTRALIA PTY LIMITED

[2012] FMCA 194

COMPETITION and CONSUMER LAW – Application alleging failure to comply with terms of settlement – Respondent’s application for summary dismissal – substantive application an abuse of process, is vexatious and has no reasonable prospect of success – pursuant to Section 17A of the Federal Magistrates Act 1999 and Rule 13.10 of the Federal Magistrates Court Rules 2001, the substantive application is dismissed.

Federal Magistrates Act 1999, s.17A
Federal Magistrates Court Rules 2001, r.13.10

Applicant:

GRANT SKINNER

Respondent:

STILLWELL MOTOR GROUP CARS AUSTRALIA PTY LIMITED

File Number:

MLG 3 of 2012

Judgment of:

O’Dwyer FM

Hearing date:

24 February 2012

Date of Last Submission:

24 February 2012

Delivered at:

Melbourne

Delivered on:

24 February 2012

REPRESENTATION

The Applicant:

No appearance

Counsel for the Respondent:

Mr Panna SC

Solicitors for the Respondent:

Macpherson + Kelley

ORDERS

Pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001, the Application filed on 3 January 2012 as amended on 12 January 2012 is dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 3 of 2012

GRANT SKINNER

Applicant

And

STILLWELL MOTOR GROUP CARS AUSTRALIA PTY LIMITED

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

This matter comes before me today as a first directions hearing in respect of an application by Mr Skinner, which was filed on 3 January 2012, supported by a Statement of Claim. On 12 January 2012 he filed an amended Application and an amended Statement of Claim, all prior to this particular court date. In support of his position he has also filed two affidavits, both affirmed on 31 January 2012 and a further affidavit filed on 1 February 2012.
In response to the application a Defence has been filed by the Respondents, which Defence, in essence, contended that the proceedings, in effect, were ill-conceived because they seek to re-agitate the same issues that were before the County Court back in 2003, and on which occasion that County Court proceeding was compromised and settled through agreement. The Terms of Settlement, then signed by the Mr Skinner, reflect that the Defendant to those proceedings (the Respondent to these substantive proceedings) would indemnify the Plaintiff, Mr Skinner against any claims by a credit provider, being Ford Credit, in respect of any liability and responsibility Mr Skinner may have had to Ford Credit arising out of a hire purchase of the motor vehicle which was the subject of those proceedings, and which is the subject of these proceedings.
In addition, he received under that settlement $3000 and also gave a general release, whereby the settlement was in full satisfaction in respect of any present or future claims of whatsoever nature that is likely to arise out of the circumstances considered before the Court in those proceedings.
Prior to the directions hearing today in relation to Mr Skinner’s substantive application, an Application in a Case was filed by the Respondent. That Application sought to have the proceedings against the Respondent dismissed on two bases; one being in respect of the grounds under section 17A of the Federal Magistrates Court Act 1999, and also under the Rules of the Federal Magistrates Court,

Rule 13.10; in essence because there is no real prospect or reasonable prospect of the Applicant being successful in his substantive proceeding.
Mr Skinner was to appear today, as I understand from correspondence he has had with my Associate, he knew that his earlier request for an adjournment had been denied. However, yesterday he informed the Court by email as follows:
This is to notify the Federal Magistrates Court that I cannot attend the dismissal hearing set down for 24 February 2012 under file number MLG3 of 2012. Please send the orders of the hearing tomorrow to Unit 1, 72 Hopwood Street, Echuca.
It is clear, in my view, from that email that Mr Skinner had full understanding of the nature of the Application in a Case, which I take him to be referring to when he talked about the “dismissal hearing”.

I also point out that in the form of the Application in a Case the following expression is made and I quote:
All parties or their legal representatives should attend this hearing, at which the court may hear and determine relevant issues, or may give directions for the future conduct of the proceeding.
There is a clear, in my view, warning and alert to parties who are the subject of these sorts of applications that an attendance is important.

In his email to the Court Mr Skinner gave no reason for his non-attendance. He sought that whatever the outcome be, the orders flowing from that outcome be sent to a specified address.
As I said earlier, the Respondent seeks to have the proceeding dismissed pursuant to section 17A of the Federal Magistrates Court Act 1999, and also Rule 13.10 of the Federal Magistrates’ Court Rules 2001. For the sake of fullness, because I intend to direct that these reasons for judgment be transcribed and sent to Mr Skinner, for his benefit I am going to read both of those particular pieces of legislation. Section 17A is headed. “Summary Judgment” and pertinently reads as follows:
…
(2) The Federal Magistrates’ Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding, or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding, or that part of the proceeding.
The other pertinent provision is Rule 13.10, which is headed “Disposal by Summary Dismissal”. I will read that in full because each of the three grounds for dismissal are being relied on by the Respondent.

It reads as follows:
The Court may order that a proceeding be stayed, or dismissed generally, or in relation to any claim for relief in the proceeding, if the court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the court.
The background to all of this I have alluded to in summary, but it needs perhaps further background before I can make a determination.

The background is this: Mr Skinner purchased a Ford motor vehicle from Knox Ford, which was the trading name of the Respondent to these proceedings, in 2000. Within a short time the vehicle, from Mr Skinner’s perspective, proved to be unsuitable for its purpose, being a delivery van with a refrigerated aspect to it.
Proceedings were issued in the County Court by Mr Skinner against this Respondent, seeking compensation for the damages Mr Skinner alleged were suffered by him. In order to finance the purchase of the vehicle in the first place Ford finance was arranged, and the associated hire purchase agreement was an agreement which bore heavily upon Mr Skinner in respect of a vehicle that he said was unsuitable for the purpose and, of course, it was a very significant aspect of his anxieties and a basis of his claims in the County Court.
In consequence of the County Court proceedings the parties, which involved the Applicant in this proceeding, and the Respondent, compromised the claim. I will now highlight some aspects of that compromise.
In support of the Respondent’s Application in a Case, I have the benefit of an affidavit sworn by Christopher Stillwell on behalf of the Respondent sworn on 22 February 2012, and the various exhibits annexed thereto. One of those exhibits is the Terms of Settlement, which is annexed as Exhibit CS3. It is a handwritten document, and it spells out the first term of the settlement. It reads:
(1) The defendant will indemnify the plaintiff in respect of its obligations arising out of, and relating to, the Ford Credit Corporate Hire Purchase Agreement number 1687513, dated 31 March 2000.
That is a significant aspect of the settlement, for reasons which I will allude to shortly. But a further aspect of the settlement and the one upon which the Respondent relies today as a bar to Mr Skinner’s substantive application is as follows, at paragraph 6:
(6) In consideration of the parties entering into these terms of settlement, the parties release each other and their servants and agents from all actions, suits, demands, claims and costs of any description whatsoever which the parties and their servants and agents now have, or at any time hereafter may have had, or which, but for the execution of these terms of settlement, could or might have had against each other, and their servants and agents, arising out of or in relation to the acts, facts, matters and circumstances referred to in the proceeding.
It would appear that the genesis, from Mr Skinner’s point of view, of these proceedings arose from a communication Mr Skinner had with a representative of Ford Credit, wherein he was informed that there was still, as late as 2011, an amount standing in his name as being owed by him to Ford Credit.
Mr Skinner’s argument, of course, is that because the amount outstanding to Ford Credit is still on their books, the principal aspect of the Terms of Settlement – namely, paragraph (1) – has not been met and, therefore, the Terms of Settlement have no application, and he is free, in effect, to issue these proceedings where he again agitates the issues that were before the County Court.
It would appear though that Mr Skinner has acted on a false understanding of the circumstances; namely,
a)of the moneys said to be owing by him to Ford Credit; and
b)as to the nature of the settlement he reached.
The settlement required for indemnity in respect of any claim that Ford Credit might make against Mr Skinner. There is no evidence that any claim has been made against Mr Skinner. But, in any event, there has been the correspondence to Mr Stillwell from the General Manager of Ford. Leaving out the formal particulars it reads as follows:
FCA Holdings confirms the following regarding this customer account –
and I should point out that the customer account is account number 1687513, and it goes on:
There is no outstanding obligations of Mr Skinner arising out of, or relating to, the Ford Credit Corporate Hire Purchase Agreement Number 1687513, dated 31 March 2000. For the avoidance of doubt, we confirm that any outstanding balance has been written off and, accordingly, there is no balance due and the account has been closed. There is, therefore, no current or contemplated recovery action against Mr Skinner.
In those circumstances, there is no need for an actual indemnity to be put into effect. There has been no breach by the Respondent of the Terms of Settlement in relation to paragraph (1) and the indemnity set out there, and it would appear that Mr Skinner has taken these proceedings on a misunderstanding. The proceeding is ill-conceived.
In summary, therefore, the Respondent states that the nature of the application before the Court – the substantive application, that is, by the Applicant, reflects all of those things under consideration in the County Court proceedings, which has been settled, and because it has been settled and there has been accord and satisfaction, the Applicant is barred from taking the proceedings he has.
From the material that has been presented to me by the Respondent, there being no contradiction or issue taken with the material presented by the Respondent in support of its application, I can only find that, indeed, the nature of the proceedings issued now in this Court by the Applicant has the same character and circumstance and factual matrix as did the proceedings issued in the County Court, and that those proceedings were compromised, and there is no reason for me to set aside the compromise that has been reached or the release that has been entered into by the Applicant with the Respondent back in 2003. It is to be noted also that, at the time the Applicant entered into that compromise with the Respondent, he had legal representation.
But there is further background to this proceeding too, and that is in respect of a claim by the Applicant against his former solicitors, Slater & Gordon, which was heard in VCAT before Judge Bowman and was unsuccessful. There have been other proceedings initiated by the Applicant against the Respondent or other third parties, in VCAT which I understand have also proved unsuccessful.
Accordingly, there is certainly a vexatious element to the nature of the proceeding that has come before me today, and there is also an abuse of process aspect to it, as clearly these matters should not be before the Court. Any action taken by Mr Skinner based upon a misunderstanding of, either the circumstances of the debt said to be owed by him, or thought by him to be owed by him, and the nature of the indemnity, is ill-conceived.
On the basis of Rule 13.10 and (a), (b) and (c), I find that:
a)there is no reasonable prospect of success on the part of the Applicant in these proceedings; and
b)there is a vexatious component to the nature of the proceedings; and
c)the proceeding also amounts to an abuse of process, particularly having regard to what is clearly a well-defined settlement agreement, and there has been no breach of that settlement agreement - accord in satisfaction having been given in relation to it.
For those reasons, I intend to dismiss the substantive Application filed on 3 January 2012, and the amended Application filed on 12 January 2012.
There will be a further order that the Applicant pay the Respondent’s costs fixed in the sum of $5500.
I direct that the transcript of these reasons be sent to the parties.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Date: 24 February 2012