Xu v Director of Housing (Ruling 2)
[2012] VCC 280
•16 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST
GENERAL DIVISION
Cases No. CI-12-00483
CI-11-05946
CI-11-06195
| JOHN XU | Plaintiff |
| v | |
| DIRECTOR OF HOUSING | Defendant |
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JUDGE: | HER HONOUR JUDGE KENNEDY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 March 2012 | |
DATE OF JUDGMENT: | 16 April 2012 | |
CASE MAY BE CITED AS: | Xu v Director of Housing (Ruling 2) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 280 | |
REASONS FOR RULING
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Catchwords: Practice and Procedure – application to dismiss proceeding for lack of jurisdiction/ as an abuse of process – whether Court has jurisdiction to hear application for order to repair in relation to a tenancy agreement under the Residential Tenancies Act 1997 – no jurisdiction under s510 where estimated cost of repairs relating to exhaust fan is less than $10,000 – claim in the alternative vexatious and an abuse of process – no jurisdiction in relation to other repairs to windows already the subject of a VCAT proceeding pursuant to s448 – no jurisdiction in relation to a claim for psychological pain of the litigation – proceedings dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Xu (In person) | |
| For the Defendant | Mr J. Warren | Legal Services Branch Dept of Human Services |
HER HONOUR:
1 In each of these 3 proceedings, the defendant has filed a summons seeking orders that the proceeding be dismissed for lack of jurisdiction and/or for being embarrassing and an abuse of process.
2 The summonses were originally returnable on 7 March 2012 in matters CI-11- 05946 and CI-11-06195. On that day, the plaintiff addressed the court orally with the assistance of an interpreter.
3 On 21 March 2012, I struck out the statements of claim in matters CI-11- 05946 and CI-11-06195. I also made orders in each of the three proceedings (proceeding CI-12-00483 having been issued on 3 February 2012) that the plaintiff was to file and serve a document of one page or less that precisely set out the repairs he says the landlord should undertake. He was also to annexe any document which estimated the costs of the repairs he specified.
4 I provided written reasons for the making of such orders[1], which reasons should be read together with the reasons delivered herein.
[1] [2012] VCC 280.
5 All proceedings were then listed for 30 March 2012, to further consider whether it was appropriate to dismiss the proceedings or make some other order. On that day, the plaintiff again addressed the court orally with the assistance of an interpreter, although he was, at times, quite difficult to follow.
6 The plaintiff has filed a document entitled “Points of Claim” (POC) in each of the three proceedings, as well as a number of affidavits (which I have read).
7 The POC documents are substantially identical, and contained nothing to suggest that 3 separate proceedings were necessary.
8 In paragraph 1 of each POC the plaintiff requests that the defendant carry out repairs to “relocate the exhaust fan and install a bulkhead” under s510(1)(a) of the RTA.
9 Paragraph 2 of each POC again refers to the repairs “at above”, and suggests that the costs exceed $10,000.
10 In oral submissions the plaintiff focused on this aspect of his claims and emphasized that, given the defendant was a public authority, it had the obligation to repair some 430 units, which would place the cost of repairs beyond the jurisdiction of VCAT in the absence of an authority pursuant to s447.
11 Paragraph 3 of each POC seeks compensation or “compliance orders” under s510(3) of the RTA relating to “psychological pain for litigation and suffering with unhealthy environment…”
12 In oral submissions the plaintiff emphasized that he was referring to the pain caused to him by being subjected to the prolonged litigation, highlighting that he had formerly been employed but had now gone onto a disability pension.
13 In oral submissions he also submitted that he was pursuing a claim for repairs relating to “windows” making reference to paragraph 3 of each POC, which cited two VCAT proceedings: 2004/37485 and 2005/ 27588. The plaintiff claimed that these proceedings had been “dismissed” so that he was entitled to commence afresh in this court.
14 Paragraph 4 of each POA appears to be an attempt to “reserve any further claim.” However, it also seeks to have regard to other exhibits “between existent the County Court files.” This appeared to be consistent with the approach of both parties that I should treat the three proceedings as one, with the evidence in one proceeding treated as evidence in the other two proceedings.
15 Doing the best that I can, the plaintiff’s claims may, therefore, be summarised as follows:
·a claim that the defendant carry out repairs to relocate the exhaust fan and install a bulkhead pursuant to s510(1) of the RTA;
·a claim that the defendant undertake repairs in relation to windows the subject of VCAT proceedings 2004/37485 and 2005/27588;
·a claim for psychological pain as a result of the litigation.
16 It therefore remains to consider the question of jurisdiction in relation to each of these matters.
Exhaust fan and bulkhead
17 As indicated in my earlier reasons, the defendant has provided an estimate of costs for the remaining repairs to the plaintiff’s apartment in an amount of $3,162.50. This includes an amount of $200 to relocate the fan.[2] The defendant says that it has been ready to move the fan if access was granted, but does not consider that the installation of a bulkhead is appropriate given the change would inappropriately lower the ceiling.
[2] See exhibit DAB-5 to the defendant’s Affidavit of Mr Bruno of 7 March 2012 in proceeding CI-12-00483.
18 Mr Xu has also adduced a report of Building Check Pty Ltd dated 29 January 2012.[3] This provides an estimate of costs of only $3,847.49, which includes all works necessary to relocate the exhaust fan and install a bulkhead.
[3] See exhibit JCI-5 to the plaintiff’s Affidavit of Mr Xu of 2 March 2012 in proceeding CI-11-05946 at page 4.
19 The amount of costs necessary to relocate the exhaust fan and install the bulkhead, therefore, appears to be well below the amount of $10,000.
20 However, paragraph 2 of the POCs makes reference to exhibits John-18, John-19 and JSCI-7 to substantiate a cost exceeding $10,000.
21 Exhibits JXCI-7[4] and John-19[5] provide no quantification, but contain a request that the fan be fixed.
[4] Exhibited to the plaintiff’s Affidavit of Mr Xu of 19 March 2012 in proceeding CI-12-00483.
[5] Exhibited to the plaintiff’s Affidavit of Mr Xu of 2 January 2012 in proceeding CI-11-05946.
22 Exhibit John-18[6] appears to be a picture of the entire block of flats, and was apparently referred to in support of the plaintiff’s submission that the cost of repairs should be considered collectively for the entire building. This does not substantiate jurisdiction, given that there is nothing to suggest that the plaintiff had standing to bring his claim on behalf of the other tenants in the building.
[6] Exhibited to the plaintiff’s Affidavit of Mr Xu of 2 January 2012 in proceeding CI-11-05946.
23 I am therefore satisfied that, on the evidence available before me, the estimated costs necessary to relocate the exhaust fan and install the bulkhead is well below the amount of $10,000.
24 Pursuant to my reasons delivered on 21 March 2012, it follows that VCAT has exclusive jurisdiction in relation to this matter. Although, prima facie, the County Court has unlimited jurisdiction pursuant to s37 of the County Court Act 1958, the provisions of the RTA operate to exclude the plaintiff’s claim from its jurisdiction and give exclusive jurisdiction to VCAT.
25 It follows that this court does not have jurisdiction in relation to this claim.
26 Although unnecessary, I consider that there would also be an alternative basis on which this claim should be dismissed, which I will refer to, only briefly, given I am satisfied there is no jurisdiction in any event.
27 As is described below, the plaintiff is party to existing proceedings in VCAT concerning the ventilation of the apartment generally, and which Member Barker stated included a claim for repairs to the exhaust fans in the bathroom and toilet.[7]
[7]See Member Barker’s reasons for decision in para 4(a) contained in exhibit DAB-6 to the defendant’s Affidavit of Mr Bruno of 27 March 2012 in proceeding CI-12-00483.
28 The defendant did not submit that the current claim for relocation of the exhaust fan was already the subject of a VCAT proceeding, and hence outside jurisdiction by reason of s448. This was because it appears that the plaintiff has a new claim concerned with the placement of the exhaust fan rather than its power.
29 Nevertheless, the maintenance of multiple proceedings between the same parties in respect of the appropriate repairs to be effected to the plaintiff’s flat would, in my view, be vexatious and an abuse of process. Thus, there appears no good reason to fragment the plaintiff’s claims, which would be suitable for adjudication in the one forum, namely, VCAT. This is particularly so given that the only issue remaining between the parties appears to be the issue concerning the installation of the bulkhead.
30 It follows that there would be an alternative basis to dismiss this claim, namely, that it is vexatious and an abuse of process.
VCAT proceedings relating to windows
31 In order to consider this matter, it is necessary to detail a chronology of the two VCAT proceedings.
Chronology of VCAT proceedings
32 Both VCAT applications (2004/37485 and 2005/27588) were treated as one by VCAT, and included a claim that the landlord carry out repairs to the windows of the premises.[8]
[8] See in particular, para 11 of Member Barker’s written reasons dated 23 February 2007at exhibit DAB-6 to the Defendant’s Affidavit of Mr Bruno of 27 March 2012 in proceeding CI-12-00483.
33 On 23 February 2007 Member Barker dismissed both VCAT applications.
34 However, following the grant of leave to appeal on 26 March 2008, Justice Judd allowed the plaintiff’s appeal and set aside the orders of VCAT on the ground that there had been a denial of natural justice. Pursuant to order 3 of Justice Judd, the matter was then “remitted to the Victorian Civil and Administrative Tribunal, differently constituted, for determination according to law”[9].
[9] See exhibit DAB-8 to the Defendant’s Affidavit of Mr Bruno of 27 March 2012 in proceeding CI-12-00483.
35 Despite apparent success, the plaintiff later sought leave to appeal Justice Judd’s decision. However, by consent orders of 20 August 2008, the plaintiff was granted leave to wholly discontinue this proceeding.[10]
[10] See exhibit DAB-10 to the Defendant’s Affidavit of Mr Bruno of 27 March 2012 in proceeding CI-12-00483.
36 By correspondence of 27 August 2008, the Director requested that the matters be listed for a directions hearing.[11]
[11] See exhibit JXCI-21 to the plaintiff’s Affidavit of Mr Xu of 28 March 2012 in proceeding CI-12-00483.
37 By correspondence of 5 September, Herbert Geer, then solicitors for the plaintiff, requested that the proceeding be transferred to the Supreme Court on the basis that VCAT lacked jurisdiction.[12] (This was the first time this matter was raised).
[12] See exhibit JXCI-15 to the plaintiff’s Affidavit of Mr Xu of 23 March 2012 in proceeding CI-12-00483.
38 By correspondence of 11 September 2008, the defendant rejected this contention and again requested that the applications be referred to a directions hearing in VCAT.[13]
[13] See exhibit DAB-11 to the defendant’s Affidavit of Mr Bruno of 27 March 2012 in proceeding CI-12-00483.
39 By correspondence of 22 September 2008 and 20 October 2008, the plaintiff wrote to VCAT.[14] Although this correspondence is not clear, it may well be that VCAT read this correspondence as an instruction to not the list the matter for directions given the statement: ”If the Directions Hearing be listed, we strange reject the decision….”
[14] See exhibit JXCI-24 to the plaintiff’s Affidavit of Mr Xu of 28 March 2012 in proceeding CI-12-00483.
40 In any event, the matters have never been listed for directions, nor has the plaintiff made contact with the defendant to have the VCAT proceedings listed for a rehearing.
41 On 23 March 2012, Mr Bruno also telephoned VCAT and was advised that if a party seeks to withdraw a matter by correspondence, then this is noted in VCAT’s electronic records. However, the electronic records do not record the plaintiff ever requesting that the VCAT proceedings be withdrawn.[15]
[15] See para 35 of the defendant’s Affidavit of Mr Bruno of 27 March 2012 in proceeding CI-12-00483.
42 The result is that the matters remain to be, but have apparently not been, reheard by VCAT pursuant to the orders of Justice Judd of 26 March 2008.
Jurisdiction of this court
43 Pursuant to s448, if an application is made to, or proceedings are before, the Tribunal, the issue concerned is not justiciable at any time before this court subject to certain defined exceptions.
44 The two applications cited in the POC have been remitted to be determined by VCAT pursuant to orders of the Supreme Court. Moreover, none of the three exceptions specified in s448(1) are applicable since:
· these proceedings were not instituted before the applications to VCAT but well after (s448(1)(a));
· the proceedings have not been withdrawn (s448(1)(b));
· the current proceedings are not proceedings for an offence (s448(1)(c)).
45 It follows that “the issue concerned”, namely, the claims for the repair of windows the subject of the two VCAT proceedings, are not justiciable in this Court.
46 As is apparent from my earlier reasons, it may be that the windows claim is above the $10,000 limit of VCAT’s jurisdiction. This was emphasized by the plaintiff, who also claimed that the defendant had failed to execute the necessary authority to give VCAT jurisdiction under s447. Nevertheless, when I raised this with Counsel for the defendant, he stated that the Director did not rule out executing an agreement in an appropriate form should the need arise during any hearing in VCAT. There were, however, other cheaper ways of fixing the windows without necessarily replacing them.
47 In any event, this Court has no jurisdiction, given that the proceedings remain extant before VCAT.
Pain
48 For reasons given above, there appears to be no cause of action properly justiciable by this Court which might give rise to a claim for psychological pain, even if (which is not the case) medical evidence was adduced to quantify such pain.
49 Nor did the plaintiff identify any cause of action which would entitle him to damages for psychological pain as a result of the litigation.
50 Mr Xu has undoubtedly suffered pain and stress throughout the course of the various proceedings he has been party to, however, I am unable to find any basis for a jurisdiction for “psychological pain” on the matters raised before me.
Conclusion
51 My conclusions may be summarised as follows:
· there is no jurisdiction in relation to the claim for repairs to the exhaust fan and the bulkhead; alternatively the claim is vexatious and an abuse of process;
· the claims the subject of the two VCAT proceedings are not justiciable by virtue of s448;
· no identifiable cause of action has been articulated in relation to the “litigation pain” claim.
52 Given my conclusions above, it follows that the remaining statement of claim in proceeding CI-12- 00483 cannot be cured, and that the three proceedings should be dismissed.
53 I will hear from the parties on the question of costs.
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