Barbon v West Homes Australia Pty Ltd [2001] VSC 405

5. The relevant procedure, that is, of approaching a Master in first instance, is set out by Order 4 of Chapter 2 of the Rules. By Rule 4.09 the Master may grant or refuse leave to appeal, and by paragraph (2) of that Rule the Master may refuse leave to appeal, inter alia, if satisfied that the applicant does not have a prima facie case on appeal or that to refuse leave would impose no substantial injustice.

8. According to the plaintiffs, the questions of law in the Tribunal proceeding in respect of which leave to appeal is sought were as follows:

"1. Can a party to a proceeding bring an application under Section 75 of the Act seeking orders to dismiss or strike out all or any part of a proceeding based on defects in the form of the allegations made in the points of claim or where the claim made is bad in law? 2. Does the Tribunal have power under Section 75 of the Act to entertain an application to strike out a claim or claims in a proceeding based on the form of the allegations made, or where the claim made is bad in law or is the Tribunal's power restricted to an application to dismiss or strike out all or any part of a proceeding based on the merits of the claim or claims?"

12. In my opinion, leave to appeal should be refused. The appeal from the Master being dismissed, I should say why that is so. But first of all I should set out s. 75(1) and (5) of the Act. They read as follows:

"(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion - (a) is frivolous, vexatious, misconceived or lacking in substance; or (b) is otherwise an abuse of process. ... (5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law."

16. The Tribunal's reasons for decision were short. The proposition that the Tribunal misdirected itself as to the meaning of s. 75(1) of the Act is said to be mainly disclosed by paragraphs 2 and 3 thereof. That misdirection is said to have led to disposition of the matter on a faulty basis, that faulty disposition being disclosed by paragraph 11 of the reasons. It is convenient now to set out paragraphs 2 and 3 of the reasons:

"2. The hearing of this application - described by Counsel as a 'pleading' summons - took the better part of 2 days. It involved the Tribunal in hearing detailed submissions about wording in the paragraphs in the Amended Points of Claim. It was then foreshadowed that a 'merits' summons might be brought at a later stage. If, of course, this was to happen there could be unnecessary duplication and cost. 3. I must indicate, at the outset, that, in my view, s. 75 does not contemplate the bringing of a 'pleading' summons in the way in which it was proceeded with before me. In my view s. 75 is plainly concerned only with 'merits' matters. I say this because of its use of the word 'proceeding'. It allows a 'proceeding' to be dismissed or struck out. A proceeding in this sense, it seems to me, is the matter being advanced in the Tribunal. It does not seem to be simply the wording in a document in a proceeding. The 'matter' is one which will be constituted by the cause or causes of action. It is that, or those, which must be 'frivolous, vexatious, misconceived or lacking in substance' or which must be 'otherwise an abuse of process.' This clearly relates to the 'merits. Understood in this way, s. 75 does not contemplate the bringing of a 'pleading' summons only. On this basis, the Summons before me is, itself, misconceived."

20. It is not clear to me what point of differentiation was sought to be made by the distinction drawn in the reasons between a "pleading" and a "merits" summons. Apparently that distinction was drawn by counsel (presumably for the present plaintiffs) in his submissions. That said, if the Tribunal intended by paragraphs 2 and 3 of its reasons to say that a proceeding or part thereof might not be dismissed or struck out because, on proper analysis, a claim as formulated was plainly defective, that should not be accepted. The reach of s. 75 is, I think, disclosed by consideration of an analogous provision in reasons for judgment delivered in State Electricity Commission of Victoria v. Rabel & Ors[1]. I refer particularly to the judgment of Tadgell, J.A. at pp.104-105 and the judgment of Ormiston, J.A. at pp.107-109.

23. Whatever precisely the Tribunal intended by paragraphs 2 and 3 of its reasons, in fact it dealt with the so-called pleading issue as if it was open to it to exercise the power conferred by s. 75 to strike out or to dismiss a claim raised by an application which was defective in form. Looking at the matter thus, the Tribunal concluded that no irremediable defect had been demonstrated such that the application or part thereof should be struck out or dismissed.

26. It is unnecessary for present purposes to decide whether the Tribunal, on the assumption it made that s. 75 could apply to such a case, adopted quite the right test at paragraph 11 of its reasons. For I am satisfied, having heard argument, that the matters put in issue did not, on any view, justify exercise of the assumed power.

29. There were disclosed to be, in argument, effectively some six matters of complaint. Most of them raised alleged deficiencies of particularisation. It was contended for the plaintiffs that the deficiencies were such that the claim raised against the plaintiffs was bad in law. I do not accept that submission. The difficulties that the submission faced are in my opinion demonstrated by analysing the matters that were raised.

32. It was first of all complained that, according to paragraph 4 of points of claim, a contract was alleged to have been made partly in writing and partly by implication. Yet, it was said, paragraph 5 specified oral terms of the contract. No doubt there may be said to be a tension between the two paragraphs, notwithstanding that, in fact, they do not raise allegations pertinent to the plaintiffs, in which case the plaintiffs' right to complain about them seems at the least very doubtful. Be that as may, the apparent conflict might readily be resolved. The great probability is that, alerted to the apparent tension, the applicant below would wish to amend paragraph 4 to allege that the contract was in part oral.

35. Then counsel for the plaintiffs complained that paragraph 26, alleging the making of certain representations, did not allege the same to be untrue. That is not the case. Paragraph 32 specifically pleads falsity. The complaint, in so far as there could be one, is that the particulars subjoined to paragraph 32 do not extent to all of the pleaded representations. That may be said to be a deficiency, a matter calling for further particularisation. But unless further particularisation were sought and provided in a form that demonstrated that some of the representations were not in truth alleged to be false, I do not consider that the deficiency could possibly lead to a conclusion that the proceeding or part thereof should be struck out or dismissed.

38. Another complaint made by the plaintiffs was that certain representations were specifically alleged against them by paragraph 43 of the points of claim, and that, in so far as paragraph 48 alleged that those representations are false and untrue, the particulars did not make good that allegation of falsity. For reasons discussed with Mr Forrest, who appeared for the defendant today, I think that there was something to the complaint that the particulars do not fit the allegation that had been made. But, again, the matter was one that ought to have been sorted out by a request for and provision of particulars. Only then could it be made clear, if it was the case, that the furthest the present defendant was able to go did not make out, and could not make out, a relevant claim.

41. Complaint was also made that the points of claim raised no specific assertion that representations were made in trade or commerce, that being a prerequisite for a claim laid under the Fair Trading Act. That was said to be the case, notwithstanding that, by paragraph 2 of the points of claim, there was a certain allegation made that members of the first respondent were at material times engaging in trade and commerce for the purposes of the Fair Trading Act. I think that the pleading point made for the plaintiffs was in truth a good one, but the gap in the allegations made for the defendant by its points of claim is of a technical nature. No court, let alone the Tribunal, would use it as a vehicle for bringing a proceeding to an end without giving the claimant an opportunity of amending so as to allege the necessary matter.

44. Complaint further was made about paragraph 43 of the amended points of claim. It was said that particulars subjoined thereto nonsensically referred to paragraph (iii) of particulars subjoined to paragraph 26. Again, in my opinion, there was something to this complaint, but it is the very sort of thing that should have been remedied by a request for particulars, followed up if there was no response. To imagine that it should lead, without more, to the claim being struck out or dismissed is fanciful.

47. The final complaint, as I noted it in argument today, was that paragraphs 56 and 57 of the points of claim failed to allege a relevant causal nexus between the allegedly misleading and deceptive conduct and loss and damage occasioned to the plaintiff. I do not accept that that is so, by reason both of the language of 57 and also the existence of paragraph 47.

50. I would not want it thought for a moment, because the Tribunal is not a court of pleading, and because the Act encourages a degree of informality in proceedings, that Rafferty's Rules should prevail. They should not. Any party, perhaps particularly a party facing a long, drawn-out hearing in the Tribunal - and I note in this case an estimate that the Tribunal hearing would extend for some nine weeks - is well entitled to know what case it must meet before the hearing commences. That is not to say that the case must be outlined with exquisite particularity. It is not to say that a defendant is entitled to evidence rather than particularisation. None the less a defendant is entitled to expect that a claim will be laid out with a degree of specificity such that, if it is obvious that the claimant seeks to pursue a claim which is untenable, that can be the subject of an application before trial; such that, moreover, if adequate particularisation is not provided, the matter will be clear to the Tribunal on application by an aggrieved party.

53. Having said that a party is entitled to know the case that it must meet in a tribunal proceeding, I do not wish it thought that a party to such a proceeding should be entitled or encouraged to conduct lengthy applications of a pleadings type. Such applications should not be encouraged in proceedings before the Tribunal.

56. In the event, whether or not the Tribunal's reasons were in all respects unremarkable, no case was demonstrated for granting relief to the present plaintiffs under s. 75 of the Act. It is right in the circumstances to conclude that to refuse leave would impose no substantial injustice upon the plaintiffs. That may be concluded whether or not the plaintiffs could be said to have demonstrated a prima facie case on appeal.

59. There is but one matter more that I should mention. I recently expressed the view, consistent with what had been said by J.D.Phillips, J.A. in Secretary to the Department of Premier and Cabinet v. Hulls[2], that in general the fragmentation of tribunal proceedings by the grant of leave to appeal from what are, in substance, interlocutory orders is to be discouraged. It was said for the plaintiffs in the present case that such a principle must yield to circumstances in which the effect of an interlocutory determination would cause serious injustice to the aggrieved party by committing that party to a very long trial before the Tribunal. Something may be said for that submission, but in general I adhere to what I said in Ewert v. Audehm & Ors.[3] concerning the fragmentation of proceedings in the Tribunal.

62. In the event, the appeal should be dismissed and leave to appeal from the Tribunal's order be refused.

69. The plaintiffs have had an outcome to the appeal which is less favourable than the outcome which was offered to them two days ago and which, at least, was available until some time before the proceeding commenced this morning. There is no monopoly of right, however, in the underlying dispute between the parties. Properly, criticisms could be made, and were made by me as well as by the Tribunal, of the way in which the defendant has laid out its claim in the Tribunal.

72. It is not mandatory for a court to make an order for solicitor and client costs simply because the losing party has done less well than it might have done had it accepted an offer that had been made by the opposing party. In the present case, I am not inclined to exercise my discretion to grant solicitor and client costs to the successful defendant.

Leave to appeal from the order of the Tribunal is refused with the plaintiff to pay the defendant's costs on a party/party basis.

[1] [1998] 1 V.R. 102.

[2] [1999] 3 V.R. 33 at [14].

[3] [2001] VSC 380 at [30]- [33].