Whelan Kartaway Pty Ltd v Mark Donnelly - [2012] VSC 45

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

JUDICIAL REVIEW AND APPEALS LIST

No. 2581 of 2011

WHELAN KARTAWAY PTY LTD	Appellant
v
MARK DONNELLY	First Respondent
and
DONNELLY’S SAND AND SOIL SUPPLIES (VIC) PTY LTD	Second Respondent

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JUDGE:	Davies J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2011
DATE OF JUDGMENT:	28 February 2012
CASE MAY BE CITED AS:	Whelan Kartaway Pty Ltd v Mark Donnelly and Ors
MEDIUM NEUTRAL CITATION:	[2012] VSC 45

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ESTOPPEL – ANSHUN ESTOPPEL – Where the appellant appeals a decision of the Victorian Civil and Administrative Tribunal (“VCAT”) – Where the appellant applied to VCAT for summary dismissal of claims brought against it by the respondents – Application dismissed because earlier concluded litigation between the parties in the Magistrates’ Court was settled without adjudication – Whether the Tribunal erred in law by finding that the respondents were not prevented from bringing proceedings against the appellant on the basis of Anshun estoppel or abuse of process – Effect of prior compromise of claims – Victorian Civil and Administrative Tribunal Act 1998 (Cth), s 148

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APPEARANCES:	Counsel	Solicitors
For the Appellant	J Gleeson S.C. with A Woods	Aitken Partners Pty Ltd
For the Respondents	R Harris	Settle Legal Pty Ltd

HER HONOUR:

Introduction

This is an appeal from the Victorian Civil and Administrative Tribunal (“VCAT”) pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act1998 (Vic) (“the VCAT Act”). The appellant, Whelan Kartaway Pty Ltd, is the respondent to civil claims filed against it in VCAT by the respondents, Mark Donnelly and Donnelly’s Sand and Soil Supplies (Vic) Pty Ltd. The appellant applied to VCAT for summary dismissal of those claims under s 75 of the VCAT Act on the basis of Anshun estoppel[1] or alternatively, abuse of process because of earlier concluded litigation between the parties in the Magistrates’ Court (“the Magistrates’ Court action”). VCAT dismissed the appellant’s application for summary dismissal, holding that the principle of Anshun estoppel had no application because the Magistrates’ Court action was settled without adjudication and that the respondents’ right to bring their civil claims against the appellant in VCAT was governed by the law relating to settlement agreements. The Senior Member held that as the terms of settlement did not release the appellant from the claims, there was no bar to the respondents bringing their claims in VCAT.[2]
[1]Port of Melbourne Authority v AnshunPty Ltd (1981) 147 CLR 589.
[2]The decision of the Victorian Civil and Administrative Tribunal made on 27 April 2011 in proceeding C7484/2010.

The question of law on which the appellant obtained the leave of the Court to appeal that decision is:

Did the Tribunal err in law by finding that the respondents were not prevented from bringing VCAT proceeding C7484/2010 against the appellant in circumstances where:
a)on 23 July 2009 the appellant had brought a claim in the Magistrates’ Court against the respondents claiming amounts due under a contract dated 22…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] VSC 45
Decision Date: 28 February 2012

CaseChat Overview and Summary

Whelan Kartaway Pty Ltd appealed a decision of the Victorian Civil and Administrative Tribunal (VCAT) which had dismissed their application for summary dismissal of claims brought against them by the respondents. The appellant sought to have the claims dismissed due to the application of Anshun estoppel, based on a prior settlement of similar claims in the Magistrates’ Court. The respondents argued that the prior settlement did not prevent them from bringing the current claims, and VCAT agreed.

The primary legal issue before the court was whether VCAT erred in law by finding that the respondents were not prevented from bringing proceedings against the appellant on the basis of Anshun estoppel or abuse of process. This hinged on the effect of the prior compromise of claims and whether it precluded the respondents from pursuing the current claims. The court needed to consider whether the respondents' ability to pursue the claims was consistent with the principles of Anshun estoppel and the doctrine of abuse of process.

In its judgment, the court held that VCAT had correctly determined that the respondents were not prevented from bringing the current claims against the appellant. The court reasoned that the prior settlement did not constitute a binding estoppel because it was not a final judgment on the merits and the parties had not intended to conclude all possible claims between them. The court further found that there was no abuse of process in the respondents pursuing the claims, as they were not acting in bad faith and the proceedings were not an improper use of the court process. Consequently, the court upheld VCAT's decision and dismissed the appeal.

As a result of the judgment, the appeal was dismissed, and the respondents were not estopped from bringing the claims against the appellant. No further orders were made beyond the dismissal of the appeal.

Orders