Sullivan v Greyfriars Pty Ltd
[2014] VSC 422
•8 September 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 4912
| ANTHONY SULLIVAN | Appellant |
| - and - | |
| GREYFRIARS PTY LTD (ACN 004 272 931) | Respondent |
---
JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 January 2014; further affidavits filed till 10 February 2014 |
DATE OF JUDGMENT: | 8 September 2014 |
CASE MAY BE CITED AS: | Sullivan v Greyfriars Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2014] VSC 422 | Revision No. 1, 16 September 2014 |
---
APPEAL FROM THE MAGISTRATES’ COURT – summary dismissal of counterclaim– counterclaim sought damages, and to invoke aspects of the criminal law, corporations law and the Charter – no cause of action within the jurisdiction of the Magistrates’ Court shown in the counterclaim – no error of law shown in summary dismissal of it – appeal dismissed -
Magistrates’ Court Act 1989 s109.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Mr T. Sowden | Nicholas O’Donohue & Co Lawyers |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Facts and history of proceedings between the parties................................................................ 2
The appellant’s counterclaim........................................................................................................... 6
Hearing and determination by the Magistrates’ Court............................................................... 7
Issues on appeal to this Court........................................................................................................ 13
Discussion.......................................................................................................................................... 16
Claim for damages...................................................................................................................... 16
Charter.......................................................................................................................................... 19
Structured oppression................................................................................................................ 20
Various prohibitions under the ASIC Act and Corporations Act........................................ 22
Various alleged criminal offences............................................................................................ 23
Land not shares........................................................................................................................... 24
Restriction to the counterclaim amount and denial of a right to a jury.............................. 25
Culpable management............................................................................................................... 25
Forced signing............................................................................................................................. 26
Inconsistent rules/non-disclosure of the requirement for approval of a sale................... 29
False accounting.......................................................................................................................... 29
Constitution................................................................................................................................. 30
Harassment/invasion of privacy/stalking/victimisation................................................... 30
Forced eviction/servitude/blackmail/harassment and coercion...................................... 31
Invalid claim for legal fees........................................................................................................ 31
Lack of notice of the meeting at which special levies were imposed................................. 31
Interest.......................................................................................................................................... 32
Defamation................................................................................................................................... 33
Claims made in written reply................................................................................................... 33
Conclusion......................................................................................................................................... 35
HER HONOUR:
Introduction
This proceeding is an appeal from an order of the Magistrates’ Court constituted by Judicial Registrar J. Maclean on 23 August 2013[1]. The Registrar found that the appellant is the owner of shares in a company title block of units owned by the respondent. The shares entitle him to occupation of Flat 36, which is located within a block of 43 units at 53 Balaclava Road, East St Kilda. The respondent’s claim in the Magistrates Court by the time of hearing concerned only outstanding maintenance and special levies. By her order, Judicial Registrar Maclean ordered the appellant to pay the respondent the sum of $9,712.30 for those levies together with interest in the sum of $3,955.48 and dismissed the appellant’s counterclaim. She dismissed the counterclaim summarily, giving short reasons for doing so.
[1]Her Honour is referred to as “Registrar” in the transcript below and for that reason that is how I refer to her in these reasons. Counsel for the respondent informed this Court after delivery of this judgment that she is in fact a Magistrate.
The appellant conceded before the Magistrates’ Court that he had not paid the levies, but contended he should not be required to do so because of the conduct of the respondent towards him. That conduct was the subject of his counterclaim. The appellant’s appeal is similarly directed principally to the dismissal of his counterclaim.
The appellant filed a notice of appeal on 20 September 2013. It first came before me on 30 October 2013 for directions, at which time the respondent made an application for summary dismissal. I listed that application for hearing on 24 January 2014 but foreshadowed that I may seek a referral from a judge to hear the whole appeal. Neither party made any objection to this course and subsequently His Honour Justice J. Forrest ordered that the whole of the appeal be referred to me for hearing pursuant to Rule 77.05 of the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”). I heard the appeal on 24 January 2014. Given the lapse of time to these reasons, I have caused the hearing of the appeal to be transcribed. At the conclusion of the appeal hearing I allowed the parties to file further material within a certain time frame, with which timetable they broadly complied.[2]
[2]The parties were permitted to file certain further material only, and by 3 February 2014. The appellant filed further affidavits to 10 February 2014 which I will also consider.
The appellant has also filed at least one further document, in the form of an affidavit, on 11 August 2014, which refers to an earlier submission to the Court a month earlier. If the appellant’s intention in filing these documents was that they be taken into account in the appeal it is misplaced. The documents were filed without leave, and so must be disregarded.
I do apologise to the parties for the delay in delivery of these reasons and any inconvenience thereby caused. For the reasons now set out in detail, I do not consider that the appellant has shown any error of law made by the Registrar in her dismissal of his counterclaim, or otherwise in respect of the additional matters relating to the hearing below that the appellant has raised. Accordingly, I will dismiss the appeal.
Facts and history of proceedings between the parties
I have drawn the following history of significant events from the affidavit of the solicitor for the respondent, Kenneth Chai, sworn 20 November 2013 and the exhibits to that affidavit, which appear in a folder. For ease of reference I will call that folder the Court Book and refer to its contents by page number. The documents on which the appellant relied, Exhibit A in the appeal, in fact are the contents of this folder, together with the Company Titles (Home Units) Act 2013.[3]
[3]T 88.
The appellant purchased the shares in the respondent which entitled him to exclusive occupancy of Flat 36 in October 2001 and initially leased the unit. He occupied the unit personally between July 2003 and December 2006. There is a long history of dispute between the parties, and the appellant concedes that he has not paid any levies imposed by the respondent since early 2009.
The respondent commenced the proceedings against the appellant in the Magistrates’ Court on 20 October 2009 seeking at that time the sum of $700.50 for removal of venetian blinds and for repairs to wiring. The appellant made a complaint that the respondent in its management of the flats had discriminated against him on the basis of his mental disorder to the Victorian Civil and Administrative Tribunal (“VCAT”) on 2 August 2010, and the Magistrates’ Court proceeding was adjourned until that complaint was heard and determined.
The discrimination complaint arose out of disputes between the appellant and the respondent about his failure to abide by various rules for the occupation of the flat, concerning the presence of pets, parking, the presence of pot plants and other matters. On 25 January 2011 His Honour Judge Howard dismissed the complaint of discrimination. Howard J. found that the appellant suffered, to the knowledge of the respondent, from a relevant attribute, being a mental or psychological disorder of depression or anxiety at the time he said he was discriminated against. His Honour also found that the respondent provided services to all shareholders, including the appellant, and so was obliged not to discriminate against the appellant on the ground of that attribute in the provision of those services. However, His Honour held that the respondent had not discriminated against the appellant in the provision of those services (management of the flats) on the ground of that attribute. In essence, His Honour held that the appellant not proved that the respondent did any more than ask him, the appellant, to comply with the company rules, which the appellant had “knowingly signed up to at the time of purchasing his flat”. His Honour added that “None of the requests were causally linked to his attribute and it was reasonable that he should be expected as one of the shareholders to comply with the company rules”.[4]
[4]Reasons exhibited in the Court Book (henceforth “CB”) at pages 1-17 at [60].
His Honour made the following additional findings of relevance to this proceeding:
66.In truth, the applicant’s principal concern was that the rules were applied unequally, as between the various owner/occupiers. He said others were allowed by the respondent to breach the rules. He produced a photo of an (unidentified) owner/occupier’s larger pots/plants. He maintained some other occupier had a pet. The applicant’s tenant said in her affidavit that several flats had plants on walkways, which were larger than those permitted by the rules, and that an elderly lady had a cat, to which the respondent turned a ‘blind eye’. The company denied in the correspondence that any others were in breach of the rules. However, I note that on 2 November 2006, the respondent issued a general notice that pots were to be ‘no more than 23 cms from [a flat] wall and contains (sic) small plants only’.
67.Most significantly, the applicant was at pains to point out how the anxiety of all these disputes worsened, if not caused, his mental instability and depression. In his letter to the company secretary dated March 2006, he said ‘…I had been suffering severe depression as a ramification of the ongoing victimisation by the directors over my motorcycle…’ (emphasis supplied). In another letter to the company secretary of 25 September 2006, the applicant said:
I have already supplied a medical justification to pet ownership (ref Wiora Mental Health Clinic letter 2003). Suffering chronic depression which is well documented I can prove in court that the so called directors have given me not one but two server [sic] nervous breakdowns through their belief they have the right to interfere in my life eg no motorcycles, no pets, intimidation, extorsion [sic] – sign now or we will cancel the sale/your shares will be sold, victimisation-not giving me the car park because I bought a motorcycle/removal of plants which had been there for up to three years/following builders to my door/calling me to account for myself before a board for scrubbing my carpets, invasions of privacy – making me explain myself six times for my renovations/demanding who stays with me be brought before the so called board, deformation [sic] of character – brought before the board to explain myself, informing the secretary that I have been told five times to move my plants when I have not had even one complaint. Every time I try to get back on my feet these so called directors interfere with my life, this is the third time. (emphasis supplied)
These observations do not suggest the applicant was subjected to discrimination of the relevant kind.
68.Harking back to his objection to being forced to sign and adopt the rules in 2003, and the very existence of them, the applicant complained in the same September letter:
In conclusion may I say that I have tried to get along with everyone and just mind my own business but it appears to me certain people think they have the right to discriminate, intimidate, victimise and invade the privacy of individuals because they have constructed a system to do so!
69.Whilst the worsening of the depression was an important point and a most regrettable consequence of the dispute, in my view, the evidence demonstrates that the ‘discrimination’ complained of by the applicant was the attempt by the respondent to enforce the rules and the way this was done, not that the requests were made of him to comply with the rules because of his impairment.
70.I have no doubt that the applicant has suffered tremendous anxiety and tension in his dealings with the respondent, and that he believes he ultimately had no choice but to leave his flat at the end of 2006. It is regrettable that he has suffered in this way, but in my opinion, the evidence does not show that he has been subjected to direct or indirect discrimination by the respondent under the EO Act. The fact that he believes the enforcement of the company rules was oppressive to him as a minority shareholder and ‘undemocratic’ does not mean that any relevant discrimination has occurred.
71.The applicant was obliged to comply with the rules because he had agreed to do so and this was the reasonable requirement of the company. The detriment of humiliation and denigration did occur to the applicant in connection with the provision of the services by the company of managing the complex and enforcing the rules, but that detriment was wholly unrelated and not causally connected to his impairment. Accordingly, I could not be satisfied there has been any indirect discrimination.
The respondent on 12 July 2011 amended its complaint before the Magistrates’ Court. The amendment to the complaint added claims for outstanding maintenance and special levies, legal costs, administrative costs and interest. It sought the sum of $23,070.81. The appellant filed an amended defence on 9 September 2011 and a counterclaim dated on the front 8 September 2011 and at the end, near signature, 17 October 2011. The counterclaim apparently intended to join the directors of the plaintiff, the “Moylan Group” and the solicitors for the plaintiff as additional defendants to the counterclaim. The counterclaim sought $487,000 and under the heading “Nature of the Complaint” stated:
Culpable Management incorporating:
Bullying causing grievous bodily harm, Fraud, Conspiracy, Coercion, Extortion, Invasion of Privacy, Victimisation, Structured Oppression of Minority Shareholders, The Violation of the Rights of Proprietary, Discrimination, Break & Entre, Trespass, Deformation of Character, Violations of Human Rights under the 2006 agreement.
On 21 December 2011 the counterclaim was struck out with costs, and the appellant was given leave to file and serve an amended counterclaim.
It is not entirely clear what then transpired in relation to the counterclaim. It appears that the appellant did refile a counterclaim as consideration was then given to transfer of the proceeding to the County Court because of the amount sought in the counterclaim. The respondent objected to the transfer on the basis that the fresh counterclaim suffered from most of the same deficiencies of the original counterclaim, and was susceptible to a further strike out application. Transfer was refused by order made 18 April 2012 and the proceeding listed for hearing in the Magistrates’ Court on 10 August 2012. On that day, Judicial Registrar Maclean adjourned the hearing and referred to VCAT the question as to whether a litigation guardian should be appointed for the appellant. That application was eventually refused on 18 April 2013. In the meantime, the appellant re-filed a lengthy counterclaim on 26 September 2012. It is not clear on the material before me whether leave to do so was required, and if so, whether it was given. Nor is it clear if this was the third counterclaim, or only the second. In any event, the parties agree that this was the counterclaim which was before the Magistrates’ Court on hearing and is the subject of this appeal.
The proceeding was eventually heard in the Magistrates’ Court on 23 August 2013 by Judicial Registrar Maclean. The respondent withdrew all aspects of its claim except those relating to outstanding levies. The Court made orders in favour of the plaintiff for these sums, and dismissed the appellant’s counterclaim.
The appellant’s counterclaim
The appellant’s counterclaim filed 26 September 2012 is reproduced in the Court Book at tab 9. The document making claims appears to be at pages 81-93 of that folder. Including attached documents the counterclaim is 184 pages long. It principally refers to the following matters:
1. A claim for over $400,000 in damages, for four years lost income plus interest, forced eviction, loss of rent, reduced rent, legal expenses and accrued debt;
2. The Charter of Human Rights and Responsibilities Act 2006 (“the Charter”), specifically sections 1(c), 5, 8, 10, 11, 13, 17,20[5];
[5]CB 81,82,86, 89,90,91,93
3. Structured Oppression (apparently a claim that he as a minority shareholder was oppressed by the majority shareholders)[6];
[6]CB 82, 84
4. Section 12DJ of the Australian Securities and Investment Commission Act 2001 (“ASIC” Act) which prohibits harassment and coercion[7];
[7]CB 83
5. Sections 17, 18, 21A, 99 and 178 of the Crimes Act 1958 which prohibit the causing of serious injury and injury and stalking, extend the definition of appropriation of property and prohibit the giving of false receipts respectively, together with the claim that “I have been to the police to try and file charges but they refuse to do nothing”, and references to other crimes[8];
6. The assertion that in fact he owned the flat outright, not shares in the company owing the land[9]; and
7. Claims that “the court has restricted my counterclaim amount” and that “my right to have a jury has been denied”.[10]
[8]CB 86-89,92
[9]CB 85
[10]CB 90
Hearing and determination by the Magistrates’ Court
The transcript of the hearing before Judicial Registrar Maclean is reproduced in the Court Book at tab 10.
The plaintiff withdrew its claims arising from removal of venetian blinds from the windows of Mr Sullivan’s flat and for repair of wiring installed by Mr Sullivan. It also withdrew its claim for legal fees arising from VCAT proceedings.[11] The respondent sought only quarterly maintenance levies from 1 April 2009 to 30 June 2012, being $4,483, and special levies imposed at meetings held on 30 November 2010, 12 December 2011 and 24 September 2012, totalling $5,929.80, and interest in the sum of $3,955.48.[12] The plaintiff reduced the special levies sought by $700.50 to reflect the removal of the claim for venetian blinds and repair of wiring.
[11]CB 12.
[12]These are the period for maintenance levies and meeting dates for special levies of which evidence, in the form of Ms McLennan’s evidence and the exhibits tendered through her were given. They differ from those itemised in the amended complaint and identified by counsel for the respondent in opening- see CB 3-4
The sums sought by the respondent and the meetings at which special levies were imposed did not correspond to the amended complaint but no further amendment to the complaint was sought or required. Counsel for the respondent submitted on this appeal that it was common practice in the Magistrates’ Court for quantum to be brought up to date on the day of the hearing.[13] No objection was taken by the appellant in the Magistrates’ Court to this course.
[13]See discussion at T29 l 11- T32 l 32.
The plaintiff called one witness to give evidence in support of the claim, and through that witness tendered a number of exhibits. The respondent supplied a copy of these to the Court and the appellant at my request after the oral hearing. The appellant has responded to the supply of copies of these exhibits in his affidavit filed 8 February 2014. In that affidavit he does query the calculation of the outstanding levies, although he did not before the Registrar.
Exhibit A is identified in the transcript as the Articles of Association, but on inspection of the copy provided to the Court, is in fact a copy of a proposed special resolution to amend the Articles of Association to confer on the directors power to determine levies, and to make rules with which shareholders must comply. The appellant did not dispute at the hearing that the Articles were so amended, and indeed volunteered that that occurred in 1985.[14] The Articles of Association were in evidence at the VCAT hearing.[15]
[14]Transcript page 5 line 20 to page 6 line 18.
[15]CB 6 at [25].
Exhibit B is a maintenance statement in respect of all of the flats, including Flat 36, for the period ending 30 June 2012 which stated that the balance outstanding for Flat 36 was $14,576.09 in maintenance and special levies. This exceeded the amount sought at hearing. The appellant did not dispute before the Registrar the amount of the maintenance levies, or the entitlement of the respondent to levy them. On a number of occasions in the course of the hearing he said that he would have paid them if he could have, but was unable to do so because the actions of the respondent had “pushed him over the edge” and caused him to leave work with consequent financial loss.[16] The appellant repeated this submission before this Court on appeal.[17]
[16]CB 281 lines 6-16, and 26-27; CB 282 at lines 11-12, and lines 19-21; CB 283 at lines 2-8; CB 284 at lines 27-29; 296 lines 14-24.
[17]T38 ll 11-15.
In his affidavit filed 8 February 2014 the appellant now seeks to query the calculation of the outstanding levies and submits that the “magistrate” should have undertaken further enquiry into the calculation as “she could plainly see I was not handling the situation at all well”.
I accept that it is not entirely self-evident from the Exhibits before the Registrar how the amount sought for outstanding levies was arrived at, and that the Registrar was required to satisfy herself that the amount sought was correct. She was entitled to rely, however, in that regard on the oral evidence of one of the directors, Ms McLennan, that the amount outstanding for quarterly maintenance was the amount sought of $4,483 and for special levies $5,929.80.[18] The Registrar gave the appellant an opportunity to ask Ms McLennan questions, and he did not cross examine her on the calculation. Given the evidence of Ms McLennan, which was not challenged, I do not consider any error of law is shown in the determination of the Registrar that these were the amounts outstanding.
[18]CB 277 at lines 13-19.
Exhibit C comprises unsigned minutes of the annual general meetings held 30 November 2010, 12 December 2011 and 24 September 2012. The first recites a resolution to raise a special levy for various matters identified in an attachment, and the subsequent minutes also record resolutions in relation to special levies. The minutes of the meeting on 24 September 2012 record an increase to a special levy “to cover legal fees and hot water service”. It appears the appellant now seeks to challenge this levy, in so far as it relates to him, because he states in his affidavit filed 8 February 2014 that “the respondents do not have the right to charge other owners for their legal fees”.[19]
[19]On the final page of the appellant’s affidavit sworn 7 February 2014 and filed 8 February 2014.
As I will discuss further below, the respondent stated at the hearing before the Registrar that it withdrew its claim relating to legal fees. Whether or not the calculation of special levies sought from the appellant also reflected removal of all claims for legal fees is not clear on the material before me. This was a matter that the appellant should, however, have raised before the Registrar if he wished to challenge it. The transcript of that hearing does not disclose that he clearly did so. I do not consider that the contention can now be raised on appeal in the absence of ventilation below.
Exhibit D were quarterly invoices to the appellant, culminating in an invoice dated 13 April 2012 for the period to 30 June 2012 in the sum of $14,576.09 for maintenance charges, special levies and interest. This is consistent with the contents of Exhibit A. In his affidavit filed 8 February 2014 the appellant also challenges these invoices on the basis that they contain, or may contain, elements relating to legal fees. For the same reasons as identified in the preceding paragraph, this is not a matter than can be raised for the first time on appeal.
The appellant challenged before the Registrar the special levies on the basis that the required notice was not given that a special levy was to be considered at the Annual General Meeting.[20] He did not tender a copy of the notice that was given. He also disputed the quantum of one of the special levies, relating to painting[21]. In response to this claim, the Registrar noted that she had no power to enquire into the quantum of the levy, only whether it was lawfully levied and conferred a right to recovery against the appellant as a shareholder.[22]
[20]CB285-287.
[21]CB 297 line 14-page 31 line 4
[22]CB 300 line 24 to page 33 line 25.
In his case before the Registrar, the appellant submitted that his counterclaim was crucial to his defence because he did not have the money to pay due to the “ramifications of their actions”.[23] The appellant spoke briefly to some of the matters in his counterclaim as follows. He asserted that he owned land, not shares[24] and that the respondent in asserting that he owned shares was making a false and misleading representation in relation to financial services in contravention of the ASIC Act[25]. In support of that assertion the appellant handed up a copy certificate of title which the Registrar examined and found to be the certificate of title for the whole of the land on which the flats were constructed, not for his flat in particular.[26] The Registrar also examined a copy of the contract of sale and held that the appellant had purchased shares conferring a right to exclusive occupation of Flat 36, not the title to land.[27]
[23]CB 301, lines 26-30.
[24]CB 277 line 31- page 10 line 12
[25]CB 277 lines 30-31 and page 19 line 20-29.
[26]CB288 line 2 to page 21 line 8, page 25 lines 2-22.
[27]CB 292 line 7-page 25 line 28.
The appellant acknowledged that he had signed what he described as a “share agreement” apparently acknowledging that he was bound by the respondent’s rules and Articles of Association (which in the plaintiff’s case conferred the right to levy on shareholders) but said he did so under coercion.[28]
[28]CB 289 line 21-page 23 line 24.
The appellant asserted that his home had been violated[29]. He also claimed he had been harassed by the directors at a meeting in May 2007, amounting to “structured oppression of minority shareholders”[30].
[29]CB294 lines 19-24
[30]CB299, line 11-page 32 line 9.
In her judgment, the Registrar reiterated the findings she had made or noted in the running of the hearing, that the appellant had purchased shares in the respondent, which gave him a right of sole occupancy of Flat 36, and had not purchased that land outright; and that he had signed a shareholder agreement and by so doing agreed to be bound by the appellant’s rules. She held that under those “rules” the plaintiff was entitled to raise levies for the maintenance of the property and special levies. She found that the defendant had not made any payment with respect to any levy since early 2009 (which had been conceded).
The Registrar found that the levies had been properly raised. She made no specific finding in relation to the appellant’s contention that the required notice had not been given in respect of one of the special levies. She found the outstanding amounts to be quarterly levies of $4,483, and special levies levied at annual general meetings which she initially stated in the sum of $3,955.48, but corrected at the request of the plaintiff to $5,229.30 (being the sum of $5,929.80 identified by the plaintiff in opening and by the plaintiff’s witness, less the amount of $700 sought for electrical and blinds). The Registrar accepted the interest as claimed in the sum of $3,955.48.
In her judgment the Registrar identified the relevant meetings at which the special levies had been agreed as having been held on 19 May 2008, 11 December 2008 and 30 November 2010. This was in accordance with the opening by counsel for the then plaintiff, now respondent.[31] That opening was itself in accordance with the amended complaint.[32] It was not, however, in accordance with the evidence. The minutes that were tendered through Ms McLennan as Exhibit C were minutes of meetings held on 30 November 2010, 12 December 2011 and 24 September 2012.
[31]CB 271.
[32]CB 320 at [17].
If there was to be any complaint made about this disparity, it should have been made at the time of the hearing. Counsel for the then plaintiff corrected the Registrar as to the amount of the special levies, but not as to their origin. It may be that this was consistent with the approach taken generally to bring the quantum up to date, without amendment to the complaint. In any event, the appellant made no comment about this disparity at the time and has not raised it in his notice of appeal. Accordingly, I will not further consider it.
In relation to the counterclaim the Registrar held as follows:
Mr Sullivan was given provisional leave by me some time ago to file a counterclaim. I dismissed the counterclaim on the basis that the matters contained therein have been heard and determined by VCAT, raised matters outside my jurisdiction and/or matters simply not relevant to the issues that I must decide today.[33]
[33]CB40.
The use of the past tense “dismissed” raises the question whether the Registrar in this passage was referring to the earlier strike out application, or to her intention to now dismiss the counterclaim as refiled.[34] The order made that day dismisses the counterclaim. Accordingly, I will treat the reasons given as relating to the dismissal of the then current counterclaim on that day. It does appear, however, that the Registrar had given similar reasons in relation to the strike out of the earlier counterclaim. In the course of the hearing she made reference to this on a couple of occasions, when the counterclaim was raised by the appellant, stating:
…most of those matters have been dealt with at VCAT. We have discussed this before and most of them are outside the powers that I have anyway. We have discussed that before too. Do you remember that? I let you file the counterclaim on the basis that I would look at it again.[35]
And later in the hearing:
So what I have to do, as I said before, is look at a very dry black and white legal issue. I have looked at your counterclaim and we have discussed it on a number of occasions prior to this. It does not go to the issues I have to decide.[36]
[34]See discussion of this issue in the transcript of the appeal (henceforth “T”) at T48.
[35]CB 287, lines 1-6
[36]CB 302, line 16-20.
The appellant raised matters he had included in the counterclaim again with the Registrar after delivery of her judgment, and the Registrar reiterated that she did not have the jurisdiction to deal with those matters.[37]
[37]CB 310 line 12 to page 44, line 20.
Issues on appeal to this Court
Appeal to the Supreme Court from a final order of the Magistrates’ Court in a civil proceeding is permitted by s 109 of the Magistrates’ Court Act 1989. That section provides as follows:
(1)A party to a civil proceeding in the Court may appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.
(2)An appeal under subsection (1) –
(a)must be instituted not later than 30 days after the day on which the order complained of was made; and
(b)does not operate as a stay of any order made by the Court unless the Supreme Court so orders.
(3)Subject to subsection (2), an appeal under subsection (1) must be brought in accordance with the rules of the Supreme Court.
(4)An appeal instituted after the end of the period referred to in subsection (2)(a) is deemed to be an application for leave to appeal under subsection (1).
(5)The Supreme Court may grant leave under subsection (4) and the appellant may proceed with the appeal if the Supreme Court –
(a)is of the opinion that the failure to institute the appeal within the period referred to in subsection (2)(a) was due to exceptional circumstances; and
(b)is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.
(6)After hearing and determining the appeal, the Supreme Court may make such order as it thinks appropriate, including an order remitting the case for re‑hearing to the Court with or without any direction in law.
(7)An order made by the Supreme Court on an appeal under subsection (1), other than an order remitting the case for re‑hearing to the Court, may be enforced as an order of the Supreme Court.
Appeal under s 109 is limited to questions of law. The Rules require those questions to be set out in the notice of appeal. The appellant’s notice of appeal states the following questions of law arising in this appeal:
A)My counterclaim was an intrinsic part of my defence. If the counterclaim is struck out so is my defence. Neither was allowed at the magistrates hearing.
B)It states in the Human Rights Charter Sect 8 that I have “the right to have recognition as a person before the law” – I have the Right to counterclaim. (See attached)
C)It further states in human rights Charter Sect 8 “Every person is equal before the law and is entitled to the equal protection of the Law” – my counterclaim is based on culpable management with malice of forethought entailing the violation of Human and Civil Rights and involving a number of criminal charges. I have the Right to protection of the Law.
D)A claim lodged under “breach of contract” in regards to forced signing is a vexatious charge. Forced signing is a major part of my counterclaim – A.S.I.C. 12Dj Harassment and coercion (for strict liability see section 6.1 of the criminal code)
E)How can I be responsible for what A.S.I.C describes as invalid fees and other charges when those who have made the charges, by their actions have damaged my life to where I cannot pay my bills or function in society?
F)It sates [sic] in the Human Rights Charter Sect 13 that I have the Right to “not have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with and not have his or her reputation unlawfully attacked” Mine has been threatened by “Law”.
G)I believe that people have Human, Civil and Legal Rights. But if they are threatened and cannot be defended then the people have no Rights for they become class privilege. In a country where over 6 million people are on income support (2011 Department of Human Services figure) they cannot afford the high cost of defending what should be their unchallengeable Right.
H)In the wake of the “Café Vamp” case which saw the introduction of the Stalking Act within the crimes Act, one must ask – what is the point of introducing an Act that can’t be enacted?
J)This case involves 2 counts of enforced servitude; I believe that this is a very serious issue. One that must be addressed.
Question A asserts that the appellant was not allowed his counterclaim, and so not his defence, at the hearing. The questions identified by the letters B to F, and H specifically refer to matters raised in the counterclaim. Question G is an elaboration of the earlier questions. Accordingly, the principal contention advanced in the notice of appeal is that the matters set out in the counterclaim could have been, and should have been, heard by the Magistrates’ Court, and that Court was in error in dismissing the counterclaim. This is the thrust of his case as put by the appellant in his oral submissions.[38]
[38]T 17, ll 19-31
In addition to the matters in his notice of appeal, the appellant has raised a number of other matters in the affidavits he has filed, and also to some extent in his oral submissions. The respondent was able to respond to these other matters, and so in the interests of dealing with all issues and fairness to the unrepresented appellant, I will consider them all in these reasons (up to and including his affidavit filed 10 February 2014), even if additional to the questions identified in the notice of appeal.[39]
[39]See discussion in relation to this approach at T 45 l 26-T47 l 4.
Discussion
The Registrar dismissed the counterclaim summarily, without hearing evidence on it from the appellant. She gave three reasons for so dismissing the counterclaim:
· The matters raised in the counterclaim had been heard and determined at VCAT; and/or
· They were beyond the jurisdiction of the Magistrates’ Court; and/or
· They were not relevant to the issues before the Magistrates’ Court.
The appellant did not challenge these reasons directly in his notice of appeal, but did make submissions on them, to the effect that they contained errors, in response to questions from me.
I will approach the appeal on the basis that if the counterclaim disclosed any cause of action within the jurisdiction of the Magistrates’ Court in respect of which the appellant had an arguable case, then the Registrar erred in summarily dismissing it. Such error would be an error of law. It is also an error of law to fail to afford procedural fairness to a party to a civil proceeding. Dismissal of the counterclaim without hearing the appellant’s evidence in respect of it would amount to a breach of procedural fairness if it was not plain that the counterclaim should be dismissed summarily. In the course of the discussion, I will also consider where appropriate the reasons advanced by the Registrar for the summary dismissal.
I will now consider the matters raised by the appellant in the counterclaim (under the headings summarised earlier in these reasons), in any document he has filed in this appeal up to and including his affidavit filed 10 February 2014 and in his oral submissions. I will seek to group together the various matters raised where they are similar.
Claim for damages
In the counterclaim, the appellant claimed over $400,000 for loss of income, forced eviction, loss of rent, reduced rent, legal expenses and accrued debt. He ascribes these losses to the actions of the respondent, or its officers, towards him. I accept that the appellant feels passionately aggrieved at the conduct of the respondent and its officers towards him. He says that those actions have caused him acute stress, caused him to vacate his flat against his will, led to him being unable to work, and occasioned the other losses he identifies. It is on this basis that he says in his defence and counterclaim that he should not be required to pay the levies, or, if he is, his claim for damages should be offset against them.
On a number of occasions in his oral submissions the appellant spoke powerfully to this contention. For example, in his opening remarks the appellant said (in response to my question as to what error the Registrar had made)[40]:
[40]T 17 line 19-T 18 line 29
MR SULLIVAN:
Basically, she didn’t address it at all. I tried to say to her, as it states on the transcript, that I had been thrust into the position by their actions, that left me stricken and had a great catastrophic effect on me, and so I was incapable of meeting their demands and any others’ demands, and they had caused me great, great pain and suffering. And so, to put forward, to substantiate that, I had to present a whole case and she negated it. So I tried to tell her that, no, you don’t understand, I’m in this position because of the action of the appeal of plaintiff. I couldn’t meet their demands or any demands and they have cost me a huge amount of money.
HER HONOUR:
Do you have the transcript in front of you?
MR SULLIVAN:
Yes.
HER HONOUR:
If you turn in that folder, the numbers at the top, page 302.
MR SULLIVAN:
Yes.
HER HONOUR:
You will see in the middle of the page we’ve got, “Registrar”, this is at line 16. “What I have to do, as I said, before … “ – have you found the page?
MR SULLIVAN:
Yes.
HER HONOUR:
“…is look at a very dry black and white legal issue, and I have looked at your counterclaim and we have discussed it on a number of occasions prior to this, it does not go to the issues that I have to decide.” So the Magistrate there appears to be saying the counterclaim did not relate to the issues before her. You say that’s incorrect?
MR SULLIVAN:
That’s incorrect.
HER HONOUR:
Why is it incorrect?
MR SULLIVAN:
Because they were relevant to the position I was in that, I could not meet their demands due to the damage they had done. Before that Magistrate, I was told by a Magistrate to put it under structured oppression. I did that as best I could, keeping to the facts, and this Magistrate wouldn’t acknowledge it. I did what I was told.
HER HONOUR:
Alright. Now, I understand, I think, your grievance that you say what you believe was done to you is relevant to the claim.
MR SULLIVAN:
Yes.
In answer to my question as to why as a matter of law the claims he wished to make in his counterclaim were legally valid and relevant to the issue of the debt, the appellant said:
Because it’s based on action/reaction, cause and effect. Their actions were highly provocative and detrimental and cost me severely. I was in a position where I couldn’t pay any bills. I ended up homeless because of their action. I had no money, I wasn’t even on the dole, they wouldn’t give it to me; I had to leave work.[41]
[41]T 19 lines 3-9.
The appellant summed up this case at the end of his submissions in chief as follows:
… Rather than go through separate issues, I can’t see why I can’t state my case. I’ve got medical records, I’ve got financial documents to substantiate they’ve damaged me. It says in the Crimes Act, if you damage somebody, it’s a crime. I can justify that and it’s linked to why I can’t pay, otherwise I would have paid; at least the levies, standard levies, but they kept on threatening me, to take my home off me, which is in the bundle, if I didn’t pay their legal fees. That comes under false accounting, harassment and coercion under ASIC which is 6.1 of the Criminal Code. These are crimes and they have a huge effect on people.[42]
[42]T 43 line 20- T 44 line 1.
The transcript of the Magistrates’ Court hearing records that the appellant had placed before the Magistrates’ Court at least some documents in support of the losses he claims, being what is there described as his “medical material”.[43] Some such documents were also before this Court on appeal, which were marked for identification only because the appellant was unable to identify with precision that they were the documents before the Magistrates’ Court. For the purpose of these reasons, I will assume that the appellant has suffered the losses that he claims, and also that those losses were consequent upon, at least in part, the actions of the respondent, or its officers.
[43]CB page 283
The difficulty that the appellant faced in the Magistrates’ Court, and faces here on appeal, is that loss and causal connection of the loss to the actions of another are not enough in law to make that other, here the respondent, liable in law for those losses. The respondent would only be liable for those losses if it was in breach of some duty or obligation to the appellant, or statutory provision that created a civil right of action at the instance of the appellant. In general terms, the combination of such a duty, obligation or statutory provision, loss, and causal connection create what is known as a cause of action i.e. a right to sue the other party for a civil remedy such as damages. A person can only succeed in a civil claim in a court if he can bring his grievance within a cause of action known to law. It is in this respect, even if in no other, that the appellant’s case in the counterclaim was doomed to fail. For the reasons I will now set out in more detail, the aspects of the Charter, the criminal law, the ASIC Act, and “structured oppression” identified in the counterclaim do not constitute causes of action for suit in civil law. Nor do the other matters that the appellant sought to raise on appeal. Neither the counterclaim nor the other matters now raised identify any cause of action known to law that could be brought in the Magistrates’ Court. Accordingly, there was no error in the Registrar dismissing the counterclaim summarily. As no cause of action within the jurisdiction of that court was shown, there was no utility in hearing any evidence from the appellant in support of the counterclaim. The matters set out in it were thus fairly described as either irrelevant or outside the jurisdiction of the Magistrates’ Court (in the case of oppression), and so fell within the reasons that the Registrar gave.
Charter
The appellant relied on a number of sections of the Charter in his counterclaim, in his notice of appeal (at Questions B, C, F and G), in his oral submissions and in his further affidavits (for example, at points B 3-5 of his affidavit filed 13 December 2013).
I accept the submissions of counsel for the respondent that this reliance is misplaced. The Charter states a number of human rights, but does not create any avenue of redress in respect of those rights, except in relation to the scrutiny of new legislation in Victoria, the interpretation of legislation and in respect of the actions or decisions of a public authority.[44] The respondent is not a public authority[45], and so the Charter does not apply to its actions.
[44]Part 3 Divisions 1 and 2, 3 and 4 respectively.
[45]See the definition of “public authority” in s 4.
The Registrar did not expressly address reliance on the Charter in her reasons for dismissal of the counterclaim. However, such reliance fairly comes within the general descriptor of irrelevance for the reasons I have set out in the preceding paragraph. Accordingly, there was no legal error in dismissing this aspect of the counterclaim.
Structured oppression
The appellant in his counterclaim and in his oral submissions on this appeal made much of his claim that he, as a minority shareholder, was subjected to what he called “structured oppression” by the majority shareholders and that this gave him a right of action against the company respondent which should have been entertained by the Magistrates’ Court. Error by the Registrar in this regard is not raised expressly in the notice of appeal, but given the approach I have taken of considering all the matters raised by the appellant in either his filed material or oral submissions, I will here address it.
Sections 232-234 of the Corporations Act 2001 (“Corporations Act”) allow a member of a company to bring proceedings against the company if he or she can establish that the conduct of the company’s affairs, an actual or proposed act or omission by or on behalf of the company, or a resolution or proposed resolution of the members or a class thereof is either contrary to the interests of the members of the company as a whole, or oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members.
Accordingly, it is not inconceivable that the appellant, as a shareholder, may have, or have had, a right of action at law against the company respondent if he could identify how his grievances about its conduct fell within these sections. However, such an action can only be brought in either the Supreme Court or the Federal Court.[46] Further, the remedies that the Federal or Supreme Court can grant on such an application are, on their face, not readily capable of constituting a defence to a claim for unpaid levies, or a claim for damages.[47]
[46]Corporations Act, s 232 and the definition of “Court” in s 58AA.
[47]Ibid, s 233.
There is reference to oppression of minority shareholders in the context of company title home units in the counterclaim. It appears at page 84 of the exhibits to Mr Chai’s affidavit (the Court Book), but by way of reference to possible instances of such oppression as considered in a law reform report, not by direct reference to particular actions of the respondent as they affected the appellant. A direct reference can only be found by close examination of the documents attached to the counterclaim, such as page 112 of the Court Book.[48] Further, not even the whole of the law reform report was before the Registrar.[49] Given this obscurity, I do not consider there was any error made by the Registrar or the Magistrates’ Court if she or the Court failed to identify such a possible claim. To the extent it was identified, it was plainly beyond the jurisdiction of the Magistrates’ Court, and so falls within that aspect of the Registrar’s reasons for dismissal.
[48]Identified by the appellant to this Court at T39. The appellant’s submissions about structured oppression appear at T 23, 39-41.
[49]T 40, ll 7-16.
It was for the appellant if he wished to make such a claim to ensure that not only was it properly identified, it was also brought in the proper court. It is not correct to assert, as the appellant implied in oral submissions, that there is an obligation on a court to move a claim beyond its jurisdiction to the correct court.[50] The appellant conceded that he had made no attempt to transfer the counterclaim or the proceeding as a whole to the Supreme Court.[51]
[50]T 23 ll 4-12
[51]T41 ll 10-22
For these reasons there was no legal error made in dismissing this aspect of the counterclaim.
Various prohibitions under the ASIC Act and Corporations Act
The counterclaim and Question D in the notice of appeal refer to s 12DJ of the ASIC Act. That section prohibits the use of physical force or undue harassment or coercion in connection with the supply or possible supply of financial services to a consumer, or the payment for financial services by a consumer. Reliance on this section by the appellant is entirely misconceived. It applies only to the provision of “financial services” and that phrase is defined in s 12BAB(1) to mean financial product advice, dealing in or making a market for a financial product, operating a registered scheme, providing a custodial or depository service, operating a financial market or clearing or settlement facility, or provision of a service otherwise supplied in relation to a financial product. Some of those terms are then further defined with precision. The respondent did not provide “financial services” to the appellant, and so cannot be caught by this section.
There was no error of law by the Registrar in dismissing this aspect of the counterclaim, because it could not create a cause of action that could be brought by the appellant against the respondent.
In his affidavit filed 13 December 2013 the appellant also asserts contravention of s 12DC of the ASIC Act. It is not clear to me whether or not alleged contravention of this section was also asserted in the counterclaim. If it was, and so was before the Registrar, it suffers from a similar flaw as reliance on s 12DJ. Section 12DC prohibits certain representations in relation to the sale or possible sale of a “financial product” that consists of, or includes, an interest in land. “Financial product” is defined by s 12BAA to include, in broad terms, a facility by which a person makes a “financial investment”, which in turn is defined by sub-section (4) to mean payment of money or money’s worth by which a financial return or other benefit is generated. While perhaps not inconceivable that this definition might apply to the purchase of investment property, there were no facts clearly pleaded in the counterclaim or apparent in the evidence given by the appellant at VCAT to support the contention that his acquisition of the unit could fall within the sales caught by s 12DC.
Further, both Howard J at VCAT and the Registrar held that what the appellant purchased was shares, not an interest in land. As discussed further below, I do not consider the appellant has shown any error in respect of this finding. That finding alone means that reliance on s 12DC is misconceived.
In his affidavit filed 13 December 2013 at point B 5) the appellant also refers to s 12 “Breach of ASIC unfair terms”. The section reference would appear to be incorrect, as s12 relates to directions to ASIC from the Minister. If the appellant intended to refer to the prohibition on unfair terms in s 12BF of the ASIC Act, reliance on that section is misconceived for the same reasons as already set out- it relates only to contracts relating to financial products or for the supply of financial services.
The appellant also refers in that affidavit at the same point to s953B of the Corporations Act. This section does create a civil right of action if loss is suffered, but only where that loss is occasioned by the failure to give a disclosure statement, the giving of a defective disclosure statement or a failure to give required warnings when giving financial advice. Reliance on that section is entirely misconceived, broadly for the same reasons as reliance on the ASIC Act is misconceived. The section appears within the chapter of the Corporations Act that regulates financial services and markets. It simply does not apply to the purchase of shares giving a right to occupy a unit.[52] Further, the appellant agrees that he did not raise this aspect of the Corporations Act before the Registrar in the counterclaim,[53] and for that reason alone it does not arise on appeal from the Registrar.
[52]See the definitions of financial product and financial services at ss763 A and B and s 766A.
[53]T82 line 30- T83 line 15.
Various alleged criminal offences
The appellant in his counterclaim, oral submissions in this appeal and written material in the appeal other than his notice of appeal makes a number of allegations that officers of the respondent have committed criminal offences. Whether or not that is correct, the commission of a criminal offence does not automatically confer a right on the victim to sue the perpetrator in a civil court. The counterclaim was a claim brought in the civil jurisdiction of the Magistrates’ Court. Accordingly, there was no error of law in the Registrar dismissing those aspects of the counterclaim that alleged criminal conduct. Those matters could fairly be described as irrelevant to the civil proceeding before the Registrar.
Land not shares
The appellant maintained before the Registrar and again on appeal that his purchase of the flat had conferred on him title to land, not title to shares. In support of that contention, the appellant relied on the certificate of title which appears at Court Book pages 97-98. The Registrar found that this contention was incorrect, and that the certificate of title related to the whole of the land on which the flats owned in company title by the respondent were constructed.
Indeed, it is not plain from the counterclaim precisely on what basis the appellant contends that he holds an interest in land. Although the title or part thereof is in evidence, the caveats are not. In his affidavit filed 13 December 2013 at C, the appellant may be seeking to add contentions that the caveats were added without reasonable cause, or that the respondent made some false or misleading representation in relation to the nature of the ownership conferred by purchase of the unit. It is not plain to me that these contentions were raised below by the counterclaim. If they were not, they cannot now be raised on appeal against dismissal of that counterclaim.
The appellant has not shown on appeal that the Registrar’s finding as to the nature of the ownership of the unit was incorrect (even if properly described as a conclusion of law and so appellable). Indeed, that the appellant owns shares not title to land would appear to be supported by the share certificate dated 3 February 2005 in his name that he exhibits to his own affidavit filed 13 December 2013.
Restriction to the counterclaim amount and denial of a right to a jury
Had the counterclaim disclosed a cause of action that could be heard and determined in the County Court, but nevertheless the proceeding was not transferred to the County Court, the appellant may have had a grievance that was capable of being appealed, in relation to restriction of the quantum of his claim. However, as set out earlier, the counterclaim did not do so. There is no error shown in refusal of the transfer (even if any such error were capable of being considered in this appeal).
Nor is there any absolute right to a jury trial. The extract that begins “34A.03 Damages and Compensation List” in the counterclaim, at page 90 of the Court Book, appears to be a reference to that rule in the County Court Rules. There is no jury trial in the Magistrates’ Court, there was no cause of action that could be heard in the County Court disclosed in the counterclaim, and so no error in refusing the transfer to the County Court.
These matters in the counterclaim could fairly be described as irrelevant to the proceeding before the Registrar, because they related to an earlier decision which was not appealed at that time, and could not in my view have been successfully appealed in any event.
Culpable management
Question C in the notice of appeal refers to “culpable management with malice of forethought”. The appellant expanded on what he meant by the phrase “culpable management” at point 1A of his affidavit filed 13 December 2013. What that expansion shows is that he considers he has a claim against the respondent simply by virtue of the losses he has suffered which he believes are consequent upon the actions of the respondent. I have set out earlier in relation to his claim for damages that these matters alone do not constitute a cause of action known to the law. The reference to a claimed criminal offence also does not create a civil right of action as discussed earlier. I accept the respondent’s submissions in these respects.
Forced signing
The appellant included in his counterclaim a copy of his signature to the shareholder agreement by which he acknowledged that he would be bound by the rules of the complex.[54] He contended before the Registrar, as he had before VCAT in the discrimination hearing, that he was forced to sign this agreement. The Registrar did not address this contention directly in her reasons, but did state in her reasons that by signing the shareholder agreement he had agreed to be bound by the rules. Whether this was a finding on an allegation of “forced signing” is in my view debatable, the Registrar having heard no evidence on the point from the appellant. I think the better view is that she dismissed his counterclaim summarily, without trial of any of the issues possibly raised by it. On this view, the statement in her reasons about the effect of signing the rules relates only to proof of that element of the plaintiff’s case. The appellant challenges this finding in Question D in the appeal, and at point 1 B of his affidavit filed 13 December 2013.
[54]CB 198
For the appellant to succeed in this appeal in establishing that the Registrar erred in her treatment of this aspect of his counterclaim, he needs to show that there was an arguable claim known to the law of “forced signing” disclosed by his counterclaim. The respondent’s first submission is that this issue was conclusively determined by Howard J at VCAT, and so there is an issue estoppel against the appellant. The respondent’s alternative submission is that in any event a claim arising from execution of the shareholder agreement would not give rise to a defence or set off against the fees, or a claim in damages.
The appellant gave evidence in the VCAT proceeding. The transcript of that proceeding is not before the Court on this appeal, and nor are the pleadings (if there were pleadings) or any statement of the issues. The VCAT reasons recite that the respondent did not cross examine the appellant prior to making its application for summary determination of the discrimination complaint or call any evidence. The reasons note that for the purpose of determining the summary judgment application, the Tribunal considered the evidence of the then applicant (now appellant) “at its highest, notwithstanding that the respondent has made it clear it rejects the complaint and disputes the applicant’s critical contentions about its alleged discriminatory conduct”.[55] Thus, to the extent findings were made by the Tribunal against the appellant, they were made on the basis of his own testimony without the need for evidence to the contrary.
[55]CB 2-4, at paras 5 and 10.
In asserting that the question as to whether the appellant was “forced” to sign the company rules had been conclusively determined against the appellant at VCAT, the respondent relies on the reasons for determination of the VCAT proceeding at paragraph 60, in particular the sentence:
In my view, the respondent did no more than ask the applicant to comply with the company rules, which he had knowingly signed up to at the time of purchasing his flat.
Earlier portions of the reasons clarify the issue to which the Tribunal was then directing its attention. At paragraph 14, Howard J noted that the sale of the shares by which the appellant became entitled to occupation of a particular flat was subject to the Memorandum and Articles of Association of the respondent company, to the approval of the directors to the transfer and to the rules of the company. He noted that the applicant “also agreed to later execute an appropriate deed by which he agreed to be bound by the rules and other regulations of the company from time to time in force.”[56]
[56]CB 4
At paragraph 26, Howard J recited that the applicant had a meeting with two directors of the company in December 2001 to sign the deed. The reasons continue:
26.…He duly signed a copy of the rules, thereby undertaking that he would be bound by them and he acknowledged that ‘Residents/shareholders accept that these Rules are for the benefit of all residents and [they are] to ensure harmony within [ZON Pty Ltd] and any breach by [a] resident is the responsibility of the registered shareholders.’
27.The applicant was very upset about this process. He said that one of the directors told him ‘Sign now or we will cancel the sale. We’ve got the power to do so.’ He maintained that the directors were overbearing, inflammatory and oppressive and that he was stood over by them. He said he only signed and adopted the rules to avoid the cancelling of the contract and the loss of his deposit and the flat he had chosen. He determined he would have the argument with the company about this issue at a later time. The applicant fully understood the content of the rules – it was just the very nature of them, which made them ‘undemocratic’ and ‘discriminatory’. In short, in his view, no owner/occupier should have had to comply with them and he was subjected to a serious breach of his human rights by being forced to do so.
This account of the appellant’s evidence as to why he signed the rules is the same as the account he gives at B1) and 2) of his affidavit filed 13 December 2013 in support of this appeal. I accept the respondent’s submission that the Tribunal made a finding in relation to these circumstances in the portion quoted earlier at paragraph 60. The question is what impact, if any, that finding would have had on a claim in other proceedings that the rules were signed under duress or in circumstances that otherwise meant the appellant was not bound by his signature.
The Tribunal was concerned with a claim of discriminatory conduct, not the same issues as may be raised by a general defence of duress, if that is what the appellant sought to raise by his counterclaim. It would need to be established for issue estoppel that this finding established the legal foundation for the dismissal of that complaint.[57] For that reason I think there may be doubt as to whether the finding constitutes a strict issue estoppel. It is difficult if not impossible to conclude that an issue estoppel is established without identification of the issues below by pleadings, or other document, and the transcript.
[57]Forster v Legal Services Board [2-13] VSCA 73 [100]-[105].
Even if not a strict issue estoppel, however, in my view in the face of his evidence in the VCAT proceedings as to the circumstances in which he signed the rules, the appellant would have had no real prospect of success in relation to any claim that he should not be bound by his signature, in particular by reason of duress, in the proceeding in the Magistrates’ Court. Making the decision to sign to avoid loss of the deposit (even assuming that that would have been the consequence) was a conscious financial decision- it could not in law amount to a claim of duress.
I conclude that no arguable claim of duress could have been raised by the counterclaim, and so the Registrar did not err in summarily dismissing it in this respect. This is one area of the counterclaim which could fairly fall within the descriptor of matters already determined in VCAT.
Inconsistent rules/non-disclosure of the requirement for approval of a sale
In paragraphs B1-5 of his affidavit filed 13 December 2013, the appellant asserts that he was not made aware of the Articles of Association or that his purchase of the unit had to be approved by the directors.
I do not consider that this issue was squarely raised before the Magistrates’ Court in the counterclaim. I cannot locate it in the initial pages, before the page headed “Index”, apparently the index to supporting documentation. The appellant spoke to the contention in his oral submissions before me, but did not identify where it appeared in the counterclaim.[58] If the appellant did not seek to agitate alleged non-disclosure of the Articles of Association before the Registrar by inclusion of that contention in his counterclaim, he cannot on appeal establish any error in relation to that contention by the Registrar dismissing the counterclaim summarily. It is not a question that arises on this appeal.
[58]T58, 77-79.
If I am incorrect in my conclusion that this issue was not raised below, summary dismissal of it does not disclose error in any event because it was ventilated at VCAT in the findings discussed earlier under the heading of “Forced signing”. The same analysis, that the appellant would have had no real prospect of success in establishing his contention, also applies in relation to claimed ignorance of the requirement that the directors must approve a sale.
False accounting
This assertion is made in the appellant’s affidavit at B 5). It is there entirely unclear to what he is referring. He spoke to this assertion in reply at the hearing[59] but again without identifying any civil cause of action. Further, this is not an assertion readily identifiable in the counterclaim and so does not appear to have been before the Registrar below. No error of law arising from that hearing in respect of “false accounting” is identified by the appellant.
[59]T80
Constitution
The appellant makes reference at point B of his affidavit filed 13 December 2013 to s 51(xxxi) of the Australian Constitution. It is entirely unclear what he seeks to argue by this reference. That section confers powers upon the federal Parliament to legislate in respect of the subject matters there set out. It does not create private rights of civil action for individuals. The appellant also concedes he did not raise this point about the Constitution in the counterclaim[60] and so it cannot arise on appeal from dismissal of the counterclaim.
[60]T84 lines 29-31.
Harassment/invasion of privacy/stalking/victimisation
This heading is used by the appellant at the first point (D) of his affidavit filed 13 December 2013. To the extent he seeks by the assertions there made to refer to sections of the ASIC Act, the Charter, or criminal offences, I have discussed these earlier. Further, there is no general civil right of action arising from alleged harassment of the type there set out.
Even if there were, many of the matters the appellant there sets out were earlier raised by him at VCAT and Howard J made findings in respect of them. As set out earlier, the Tribunal’s overall finding in relation to the conduct of the respondent was that “the respondent did no more than ask the applicant to comply with the company rules…”.[61] As discussed earlier, I do not consider that this finding would raise any estoppel against the appellant in respect of causes of action other than discrimination. However, as it was made on the basis of the appellant’s evidence alone, it suggests that the appellant would have no real prospect of success in respect of any cause of action that required proof that the respondent had harassed him or acted unfairly towards him.
[61]CB 13 at [60].
No error is shown in respect of the dismissal of the counterclaim in so far as it raised any of these contentions, and indeed they could fairly be described as falling within the general descriptors of irrelevance (no cause of action) or already considered by VCAT.
Forced eviction/servitude/blackmail/harassment and coercion
This is the heading to the second point D) in the affidavit filed 13 December 2013. The phrase “enforced servitude” is also used at Question J in the notice of appeal. “Blackmail/Servitude” also appears as a heading to point E) in the affidavit. Various factual matters are set out under these headings in the affidavit. References are made to documents attached to the counterclaim.
None of the phrases used in the heading to this section constitute a cause of action known to the civil law, and nor is a legal cause of action, as opposed to a grievance, disclosed by the recital of facts set out under these headings. Accordingly, to the extent any of these matters were raised by the counterclaim, no error is shown in dismissing them summarily.
Invalid claim for legal fees
The appellant raised in his affidavit and in his oral submissions concern that the respondent had sought prior to the proceeding commencing and in the amended complaint to recover from him legal fees related to the VCAT proceeding.[62]
[62]For example, point G) 1) 1) and H) of the affidavit; T 19-21 and 80 (there described as “false accounting”)
This claim was withdrawn at the Magistrates’ Court. Accordingly, the Registrar did not make any determination in respect of it and so there is nothing upon which any error can be shown in this appeal.
Lack of notice of the meeting at which special levies were imposed
The appellant raised in his oral submissions concern that inadequate notice was given of the intention to seek approval of a special levy.[63] It is conceivable that if the law generally or the Articles of Association of the respondent required particular notice to be given of the intention to seek approval for a special levy, and such notice was not given, then the appellant may have had a basis in law to challenge his claimed liability under that levy. However, this claim was not raised (if it was raised at all) with sufficient specificity in the counterclaim to require the Magistrates’ Court to entertain it. The appellant would have been required to identify the particular levy and meeting in question, and been in a position to give evidence as to the degree of notice given. From his oral submissions, it appears that he may not have been able to do so, as he indicated the last meeting he attended was in 2007[64] and the levies in question were imposed after that date. There is no indication in the transcript before the Registrar that he sought to introduce into evidence the meeting notices for these meetings, to support any contention that inadequate notice was given.
[63]T36.
[64]T 35 line 27.
Interest
The appellant raised before me a claim that interest could not be charged on outstanding levies, and was only applicable to damages.[65] The appellant conceded, however, that he did not raise this matter before the Magistrates’ Court. Accordingly, it ordinarily could not arise on this appeal. Nevertheless, I indicated I would consider the matter[66].
[65]T 32 line 14 and following.
[66]T 34 at line 34
I have read Dimos v Willetts[67] an extract from which is attached to the appellant’s affidavit filed 13 December 2013 and upon which he apparently relies in relation to this contention. In that case an order for interest pursuant to statute was set aside, but not because interest lies only in respect of damages. In fact, as the judgment makes clear,[68] interest pursuant to statute does run when a debt or a sum certain is recovered. That was found not to be the situation on the facts in that case, but is precisely the situation in this case. There was no error in the award of interest pursuant to statute.
[67][2000] VSCA 154
[68]Ibid, at [10].
Defamation
For completeness, I also refer to the claim of defamation that appears in the appellant’s affidavit filed 13 December 2013 at H 3). The appellant apparently makes this claim on the basis of documents he had attached to his counterclaim, but the necessary elements of the cause of action are nowhere clearly articulated in the counterclaim. Accordingly, there was no error in dismissing the counterclaim in that respect.
Claims made in written reply
I permitted the appellant to reply in writing to the respondent’s Table of Objections to the Matters Raised by the Appellant which counsel for the respondent addressed at the hearing. The appellant did so by his affidavit filed 3 February 2014. In that affidavit he largely reiterates matters earlier raised which I have already addressed in these reasons. I will not address them further. He also raises a number of new matters. Particular new matters I have identified in the affidavit are as follows:
1) The court recording and related transcript are missing sections including those relating to his medical records;
2) The respondent has continued to raise further “invalid levies”;
3) No point should be made of the fact that he did not appeal the VCAT determination because he was not advised he could, and it would have been expensive.
It is not necessary to seek the respondent’s response to these new matters, and none, in my view, are capable of establishing error in the Registrar’s order. In relation to the assertion that the transcript of the hearing before the Registrar as it appears in the Court Book is incomplete, it was incumbent on the appellant to provide independent evidence to support this assertion, and to show that any absent portion is relevant to the appeal. He has not done so. The transcript itself shows that there is a portion missing[69] but it is not enough simply to assert what took place that is not recorded. The Court requires the recording of the hearing below that is under challenge to be transcribed by an independent agency precisely because it is critical that it be neutrally transcribed. A claim by one party that it is wrongly or inadequately transcribed should be supported by independent evidence if it exists. Here there is none.
[69]CB 310
If indeed the missing portion related to the appellant’s medical history, that was not relevant to the respondent’s claim. It was potentially relevant to a counterclaim that is known to the law, but as discussed earlier a negative impact on the appellant’s health, even if truly consequent on the actions of the respondent, is not enough alone to constitute a cause of action against the respondent. I have read the medical report of Dr Mims dated 6 June 2013 which the appellant attaches to this affidavit. Even assuming it was included in the material before the Registrar (which the appellant has not clearly shown), it did not in itself create a right of action against the respondent that the Registrar should have heard.
In relation to point 2) above, action taken by the respondent in relation to further levies after the order by the Registrar is irrelevant to this appeal from that order.
In relation to point 3) above, the respondent did submit that it was significant that the appellant did not appeal the VCAT order. This submission was made in the context of its submission that some estoppel arose from the hearing and determination of the VCAT proceedings. I have concluded that there is probably no estoppel, but nevertheless the findings show that the appellant would have had no reasonable prospect of success in establishing any cause of action that required proof to the contrary.
The reasons why the appellant did not appeal the VCAT order are irrelevant to this legal analysis. In any event, the analysis turns not so much on the legal effect of the findings as on the fact that they were made on the appellant’s evidence alone. If he could not on his own uncontested evidence persuade one judicial officer of those facts, it seems to me unlikely that he could persuade another. It is on that basis only that I have considered the findings made by Howard J in this appeal.
Conclusion
For these reasons I will dismiss the appeal. I will hear the parties if required in relation to costs. For the assistance of the unrepresented appellant, I note that ordinarily the unsuccessful party, here the appellant, would be required to pay the legal costs incurred by the other party, here the respondent, in defending the appeal.
---
2