Cassar v Skunca [2002] VCAT 381

3. The application by the Respondent for costs is refused.

1. In this application, the Applicant Anthony Cassar claimed $2,164.83 from the Respondent Franzisca Skunca. It arose out of the purchase by the Applicant, on or about 25 August 2001, of a 1985 model Peugeot 505 motor vehicle from the Respondent. The purchase price was $3,300.00 and possession of the vehicle was handed over on 25 August 2001. At that time the Applicant was also provided with a roadworthy certificate which had been supplied by Mr Paul Wilson, a licensed vehicle tester who carried on business under the name Blackburn Service Centre. Attached to the Application was an Outline of Dispute which was accompanied by a number of documents. The Applicant concluded his Outline by saying "I am lodging this application against Mrs Skunca on the basis that I have a fair trading dispute against her arising from the defects in the car and the representations that Mr Skunca, acting as her agent, made in relation to the state of the car and the status of its repairs."

2. In Application C4035/2000 this Applicant, Anthony Cassar bought an claim against Sancol Nominees Pty Ltd and Blackburn Service Centre ("the prior application"). The prior application was heard before Member Mr Alan Vassie on 8 December 2000 and he provided written reasons for the decision he came to on 19 December 2000. A copy of those reasons was among the documents which were attached to the Outline submitted by the Applicant.

3. The prior application arose out of the same sale of the 1985 Peugeot motor vehicle to the Applicant in August 2000. It appears from Mr Vassie's reasons that Sancol Nominees Pty Ltd was a company which was controlled by Mr Ivan Skunca and the present Respondent, Mrs Franzisca Skunca. Sancol Nominess Pty Ltd (Sancol) had been named as a party in the prior application as it was believed by the Applicant that company was the owner of the vehicle and the seller to him. Blackburn Service Centre was named as a party on the basis that it had provided the roadworthy certificate having done work on the vehicle.

4. At the hearing of the prior application on 8 December 2000 Mr Ivan Skunca appeared on behalf of Sancol and gave evidence. The amount claimed in the prior application was $1,330.36 and details of the manner in which that amount was arrived at is set out in paragraph 5 of Mr Vassie's reasons.

5. It appears common ground that the negotiations for the sale of the motor vehicle were conducted between Mr Cassar and Mr Skunca. In the prior application it emerged that the vendor of the vehicle, ie. the owner of the vehicle at the time of the sale had not been added as a party to the prior application. Mr Vassie's conclusions in relation to that issue are found in paragraphs 9 to 12 of his reasons which I set out in full as follows.:-

"9. On his application form, in the block designed for the listing of the Respondent or Respondents, Mr. Cassar named both Mr Skunca and Sancol Nominees Pty Ltd. He told me he named Sancol because the test report was addressed to Sancol and so he assumed that Sancol had been the seller, although Mr Skunca had never mentioned Sancol during the negotiations for the sale. The receipt for the purchase price had been signed by Mr Skunca.

10. Mr Skunca's evidence was that the owner of the car at the time of the sale was his wife, Franzisca Skinca. He produced to me registration papers in his wife's name (although she is called "Franzis Skunca" in them). He gave evidence that during the negotiations he told Mr Cassar that the car was owned by his wife and was driven by their daughter, Nicole Skunca. He produced to me an insurance renewal receipt addressed to Nicole Skunca. In his evidence Mr Cassar agreed that Mr Skunca had said that his daughter drove the car, but denied that Mr Skunca ever mentioned his wife, and went on to tell me that Mr Skunca had said that the car was his daughter's and that its number plate showed her initials and her year of birth. Neither Mr Cassar nor Mr Skunca could produce to me a copy of the transfer of registration document which must have been created for the purpose of Mr Cassar transferring registration of the car into his name.

11. On the evidence described in the previous paragraph, and on the footing that the most reliable evidence of ownership is the registration papers, I find that Franzisca Skunca was the owner of the car at the time of the sale, that Ivan Skunca acted on her behalf in negotiating the sale but was not the seller, and that Sancol was not the seller and played no part in the transaction at all. As the test report was addressed to Sancol, I infer that Sancol commissioned it and paid for it, but that fact is of little significance on the issue of ownership. I also find that Mr Cassar knew that during the negotiations that Mr Skunca professed not be the owner of the car but to be negotiating on behalf of the owner, although Mr Cassar did not know the identity of the owner (for I am not satisfied that Mr Skunca did mention that his wife was the owner).

12. During the hearing I told Mr Cassar of my view that he had probably named the wrong Respondent, and invited him to apply to add Franzisca Skunca as a party, although I also told him that if he did so I would have to adjourn the hearing so that she could be given notice of the claim. He told me that he did not want Mrs Skunca added as a party because he did not want there to be any adjournment."

6. As it is apparent from paragraph 12 of Mr Vassie's reasons, it is clear the Applicant in explicit terms was given the opportunity to add Franzisca Skunca as a party to the prior application. The Applicant declined to do so.

7. It would appear from the reasons of Mr Vassie that the possibility of adding Mr Skunca as a party was not canvassed during the hearing. Although, that was not an issue which was canvassed before Mr Vassie he did consider the question and concluded that it would be pointless to add Mr Skunca as a party.

8. In paragraph 15 he sets out the reasons for coming to that conclusion. Those reasons are as follows:-

"15. Arguably Mr Skunca made a promise on 21 and 23 August - a personal warranty - that the power steering leak would be fixed, and broke that warranty, but a dispute about that between Mr Cassar and Mr Skunca is not a "fair trading dispute" as defined in s.107 of the Fair Trading Act 1999 because it is not a dispute between a purchaser and a supplier; the supplier was Mrs Franzisca Skunca. So the Tribunal has no jurisdiction under the "fair trading dispute" provisions of that Act to hear and determine a dispute between Mr Cassar and Mr Skunca. Arguably Mr Skunca made a misleading statement on 25 August that the power steering leak had been fixed. A person who makes a misleading statement "in trade or commerce" in relation to the sale of a motor car contravenes s.9 and s.12 of the Fair Trading Act and the Tribunal has jurisdiction under s.159 to hear and determine a claim for compensation made by a person who suffers loss because of the contravention. The difficulty is that Mr Skunca's statement, in my view, was not made "in trade or commerce". The car was advertised for sale in the "Trading Post". There is no evidence that Sancol or any of the Skuncas sold cars in the course of a business. All the evidence pointed to a conclusion that the sale was an isolated private sale of a car that had been used for private purposes. The meaning of the expression "in trade or commerce" has been considered in the context of an isolated sale of a private dwelling house. The Federal Court has held, and the Supreme Court of Victoria has agreed, that such a sale doe not take place "in trade or commerce", even when an estate agent is involved in the sale: O'Brien v. Smolonogov (1983) 53 ALR 107: Argy v. Blunts and Lane Cove Real Estate Pty. Ltd. [1990] FCA 51; (1990) 26 FCR 112 at 127-131, especially at p. 129; Primcom Pty. Ltd. V. Sgarioto (1994) Victorian Conveyancing Reports 54-508 at p.65,852. By analogy it must follow that an isolated private sale of a car used only for private purposes does not take place "in trade or commerce". I regret having to reach the conclusion that the Tribunal has no jurisdiction to consider a claim against Mr Skunca a personally. Mr Cassar might well have a good claim against him but he would have to bring it in a Court."

9. The prior application therefore proceeded against Blackburn Service Centre the name under which Mr Wilson conducted his business in respect of the cost of rectifying defects to the car which Blackburn Service Centre ought to have detected and fixed before supplying the test report and a roadworthy certificate. Specifically the items were, and the amounts claimed, as follows -

For convenience sake in describing the items I shall use the expressions "roadworthy" and roadworthiness" but I do not use those expressions in the technical sense used in the Motor Car Traders Act 1986 and the Road Safety Act 1986.

10. Mr Vassie set out in detail the basis upon which the hearing then proceeded before him and I set out in full paragraphs 24 to 26 of his reasons.

"24. When Blackburn Service Centre undertook the task of rectifying defects pointed out by Mr Hebb on 1 September, following Mr Cassar's complaints, Blackburn Service Centre became a supplier of services to Mr Cassar within the meaning of the Fair Trading Act, even though the arrangement for the examination of the car in the first place had taken the form of a contract between Blackburn Service Centre and Sancol. As Mr Cassar now disputes that Blackburn Service Centre did rectify all the defects that it ought to have rectified, there is a "fair trading dispute" between Mr Cassar and Blackburn Service Centre within the meaning of that Act and the Tribunal has jurisdiction to hear and determine that dispute.

25. Obviously there is a fair trading dispute between Mr Cassar and the seller of the car but as Mr Cassar has decided not to ask that the seller Mrs Franzisca Skunca be added as a party there is no occasion for the Tribunal to consider that dispute any further.

26. I have already explained why it is that the Tribunal has no jurisdiction, in my view, to deal with a claim against Mr Skunca personally."

11. In the prior application Mr Vassie then dealt in detail with the complaints made by the Applicant that related to the power steering leak, the engine oil leak, the reversing lights and the tyres. It is apparent from the Outline of dispute in the Application with which I am concerned that the Applicant wishes to revisit the issues of the tyres and power steering among other things. The outline indicates a claim for the cost of four tyres of $616.00 there is also a claim for estimated cost of future repairs of $1,200.00. The supporting documents include a quotation from Super Steer Australia which shows the claim for future repairs is for further work on the power steering and the amount of that quote is $1,200.00.

12. In the concluding part of Outline, the Applicant indicates that he will also be relying upon the representations made by Mr Skunca, as agent for the Respondent Mrs Skunca, in relation to the state of the car and the status of its repairs. During the course of the hearing before me, Ms Casely indicated that the Applicant was now not relying upon the statements made in relation to the state of the car and the status of its repair. I took that to amount to an acceptance of the correctness of the view expressed by Mr Vassie in paragraph 15 of his reasons regarding the "in trade or commerce" requirement of the Fair Trading Act 1999 provisions relating to misleading statements or conduct.

13. The claim before me included a claim for a roadworthy certificate, $45.00. I understood this to be a certificate obtain for the purposes of the claim so that on the face of it, by reason of the provisions of section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) that amount would not be recoverable. The balance of the claim therefore represented a claim in respect of repairs which had been done or which it was alleged would be required to be done because of the "unroadworthiness" of the vehicle.

"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 -

"An order under sub-section (1) or (2) may be made on the application of a party or on the Tribunal's own initiative."

15. The basis of the claim which was before me was that it was a condition of the contract by which the Applicant purchased the vehicle from the Respondent on 25 August 2001 that the vehicle would be "roadworthy". Again, I use that expression in the broad sense to which I have already referred. In particular the contract contained a term that none of the tyres would be so worn as to be unroadworthy and that the power steering was also free of defects in that sense. In effect, the Applicant in relation to the tyres and power steering was seeking to revisit those issues which had been dealt with and considered by Mr Vassie. Clearly, the duty owed by Blackburn Service Centre to the Applicant was separate and distinct from the duty owed by the Respondent to this application by reason of the terms of the contract with the Applicant. While the two applications were concerned with separate duties, each was concerned substantially with the same issue as to the manner in which those respective duties had been breached. In his reasons Mr Vassie dealt, in detail, with the substance of the issues in relation to the tyres and power steering. The question which arose for my consideration was whether it was appropriate that I should reconsider the issues which had already been determined by Mr Vassie. And, also, whether it was appropriate to do so in circumstances where the Applicant had declined the opportunity to add the present Respondent as a party to the prior application which would have led to all issues being then determined once and for all.

16. The consideration of the question whether in the circumstances the present application involves an abuse of process does not involve any consideration of the question of estoppel. There have been no prior proceedings between the present parties so that an estoppel cannot arise. Also, it should be observed that as there have been no prior proceedings between this Applicant and this Respondent in relation to these issues there can be no question of the Respondent being vexed.

17. The concept of abuse of process is a much broader concept than an concept of estoppel. The categories of abuse of process are, like the categories of negligence, not closed. It is in the public interest that there should be an end to litigation. Lockyer v Ferryman (1877) 2 App Cas 519, 530. Should an Applicant who has been given a clear opportunity to add a party to prior proceedings and who chooses not to do so be permitted to subsequently bring separate proceedings against that party, particularly, where as in the present case, the basis upon which the new proceedings are issued involves re-litigating the roadworthiness issue?

18. The first aspect involves consideration of the question as to whether the Applicant should be permitted to maintain the present application, having clearly chosen not to add Mrs Skunca as a party to the prior application when invited to do so by the Presiding Member. There have been no prior proceedings between the Applicant and Mrs Skunca so the doctrine of estoppel is not relevant. However it might be said that the Applicant having elected not to add Mrs Skunca as a party to the prior application has waived his right to subsequently maintain a claim against her in the respect of the issues which are common to the prior application and this application. Unlike the doctrine of the estoppel, there is no requirement in asserting that a party has waived its right or elected not to pursue a right that the other party has acted to his or her detriment by reason of the asserted waiver or election. The principles of waiver and election form part of the overriding public interest principle that there be an end to litigation.

19. As was said by Gaudron J in the Commonwealth v Verwayen (1990) 170 CLR 394 at 482, "When a party to litigation deliberately chooses not to take a point or fails to take a point when it comes to notice, the Courts may adopt a more a stringent attitude, treating the point as having been irrevocably abandoned. Usually the party who has thus failed to take the point is said to have waived it."

20. There is then the res judicata rule. The rule was explained in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100 at 114-115, (1843-60) All ER 378 at 381-382 by Wigram V-C as follows:-

"In trying this question I believe I state the rule of the Court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertent, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

21. Stuart-Smith LJ in Talbot v Berkshire County Council, (1993) 4 All ER 9 at 13 after referring to the passage in Henderson to which I have just referred went on to say as follows:-

"The rule is thus in two parts. The first relates to those points which were actually decided by the Court; this is res judicata in the strict sense. Secondly, those which might have been brought forward at the time, but were not. The second, is not a true case res judicata but is rather founded on the principle of public policy in preventing multiplicity of actions, it being in the public interest that there should be an end to litigation; the Court will stay or strike out the subsequent action as an abuse of process."

His Lordship then referred to the speech of Lord Wilberforce in the Privy Council decision of Brisbane City Council v Attorney-General for Queensland (1978) 3 All ER 30 at 36.

"The second defence is one of res judicata. There has, of course, been no actual decision in litigation between these parties as to the issue involved in the present case, but the appellants invoke this defence in its wider sense, according to which a party may be shut out from raising in a subsequent action an issue which he could, and should, have raised in earlier proceedings."

After referring to what he described as the classic statement of the doctrine contained in the judgment Wigram V-C in Henderson v Henderson he then adopted a further, then recent, statement which had been made by the Privy Council in - Yat Tung Co v Dao Heng Bank (1975) AC 58:

".... there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in the earlier proceedings."

22. The conclusion reached that the present application be struck out as an abuse of process was not reached simply on the basis that the Applicant had in the prior application chosen not to add Mrs Skunca. In the present application it was apparent from the Applicant's Outline that he wanted to re-litigate the roadworthiness issue. Particularly, he wanted re-raise the issues in relation to the power steering and the tyres.

23. In the prior application the claim against Blackburn Service Centre was based upon the alleged breach of a duty owed by that party to the Applicant. In the present application it is alleged that there was a breach of the term of the contract. Although the proceeding involved separate considerations ultimately the manner in which it was alleged that the roadworthiness term in the contract with Mrs Skunca was breached is based upon the same facts upon which the Applicant relied in his assertion that Blackburn Service Centre had breached the duty it owed to him. Mr Vassie dealt with the power steering leak in paragraphs 27 and 28 of his reasons, and the tyres at paragraphs 38 and 29. It is apparent from the Applicant's Outline, he is seeking to have those issues raised again and would seek to urge a different conclusion to the conclusion reached by Mr Vassie.

24. In Reichel v McGrath (1889) 14 App Cas 665 the House of Lords held that the Appellant should be debarred from re-litigating an issue identical to that which had been decided between him and a different party. The House of Lords decision was referred to by the Court of Appeal in North West Water Limited v Binnie and Partners (1990) 3 All ER 547. At 553 Drake J said "... to permit the same issue to be litigated, albeit between difference parties, would be an abuse of the process of the Court."

25. In my opinion to seek to have the roadworthy issue re-litigated in circumstances where the Applicant had chosen not to add Mrs Skunca in the prior application amounted to an abuse of process. Accordingly, in accordance with the provisions of Section 75 of the VCAT Act I ordered the application be dismissed.