Extension of time - whether VCAT Act s126(1) is applicable to permit extension of time prescribed by Fair Trading Act 1999 s159(3) for commencement of a proceeding.

Davies v Diversiti Pty Ltd (Civil Claims) [2010] VCAT 1126

1. The respondent's application dated 19 March 2010 is dismissed.

2. The principal registrar is directed to re-fix a date and time for a compulsory conference and to direct the parties to attend it.

1. This case has raised the issue of whether, and if so in what circumstances, a respondent is entitled to make a second application for summary dismissal of a proceeding when an earlier application for the same order has been heard and dismissed.

2. By an application dated 19 March 2010 the respondent Diversiti Pty Ltd ("Diversiti") has sought the following orders:

an order pursuant to section 78(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act") that the proceeding be dismissed or struck out; or

alternatively to 1, an order pursuant to section 75(1) of the VCAT Act that the proceeding be summarily dismissed or struck out; or

alternatively to 1 and 2, an order pursuant to section 75(1) of the VCAT Act that the proceeding be summarily dismissed or struck out insofar as the applicant seeks to recover loss allegedly suffered before 2 January 2003.

3. Diversiti had not previously made any application under section 78(2)(a) of the VCAT Act. That section, and that sub-paragraph in particular, empower VCAT to order that a proceeding be dismissed or struck out if the applicant conducts the proceeding in a way that unnecessarily disadvantages another party by conduct such as (for example) failing to comply with an order or direction without reasonable excuse.

Diversiti had, however, previously made an application under section 75(1) of the VCAT Act. That sub-section provides: 1. Summary dismissal of unjustified proceedings

• (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

Diversiti's earlier application made under section 75(1) was filed on 20 May 2009 and heard by Senior Member (now Deputy President) Lambrick on 11 August 2009. On 7 September 2009 the Senior Member made an order dismissing the application and gave written reasons for the order.

On 19 April 2010 I heard the application dated 19 March 2010. Mr Pizer of counsel appeared for Diversiti. The applicant Ms Davies appeared in person. Mr Pizer presented a written outline of submissions and spoke to them. Ms Davies presented a written answering submission which bore the name of Mr Antill of counsel. She made an additional oral submission. Mr Pizer then presented a written submission in reply and spoke to it. At the end of the hearing I reserved my decision.

In his written answering submission Mr Antill had observed that in Mr Pizer's outline of submissions "there is a succinct and clear summary of the background to the proceedings and to the basis of the claims made by [Ms Davies]." Accordingly I have felt free to draw upon, and have gratefully drawn upon, that summary when preparing these reasons.

1. Diversiti is a recruitment company which specialises in information technology ("IT") recruitment. It sources and supplies IT contract or permanent staff for client organisations who are seeking such staff. For this purpose Diversiti maintains a database of potential candidates for staff placement in the IT environment.

2. Ms Davies is an IT professional. At all relevant times she operated a company, I.N.S. Computer Consultancy Pty Ltd ("INS") through which she offered to provide, and did provide, consultancy services. Either Ms Davies or INS was, or both were, on Diversiti's database of potential candidates for staff placement. Between October 1994 and March 1996 Diversiti arranged for INS to provide consultancy IT services to Telstra, Diversiti's client, pursuant to four agreements between Diversiti (then known as Anderson Contracting) and INS. Following completion of those agreements, Ms Davies and/or INS remained on the database but Diversiti did not enter into any further agreement with either of them or place either of them with any client.

3. On 15 July 1999 Diversiti made an entry in its computer database ("the entry"). In the entry, Ms Davies was referred to as "Swaroop". The entry read:

Please note - Lisa Edwards advised that Swaroop has just been presented to CABA for a GST position through another agency. Lisa requested we note on Swaroop's file that she was terminated by Act [Diversiti] on the CABA project (and in her previous contract at National Financial Management) due to poor performance.

1. Ms Davies alleges that the information in the entry was incorrect. By a letter to Diversiti dated 14 November 2002 she made that assertion.

2. In 2003 Diversiti deleted the entry from its database. It says that the deletion occurred by the end of March 2003. Ms Davies asserts that it was not removed until 30 October 2003. At all events by the end of 2003 the entry was no longer on the database.

3. Ms Davies has alleged that between September 1999 and December 2003 there were long periods during which she was unable to obtain any work. She has alleged that that state of affairs was the result of the entry having been made, and having remained, in Diversiti's database, and having deterred prospective hirers of her or of her company INS.

1. On 2 January 2009 Ms Davies filed the application which commenced this proceeding. In the application she claimed loss and damage alleged to have resulted from conduct of Diversiti which was in contravention of one or more provisions of the Fair Trading Act 1999. The amount which she claimed in that initiating application was $90,000.00.

(1) A person who suffers loss, injury or damage because of a contravention of a provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention.

(1A) Except in accordance with section 107(3), a person may not recover in the Tribunal an amount for any personal injury suffered.

(2) A proceeding under this section may be brought before the Tribunal or in any court of competent jurisdiction.

(3) A proceeding under subsection (1) must not be commenced more than 6 years after the date on which the cause of action accrued.

This subsection is subject to Part IIA of the Limitation of Actions Act 1958.

1. Ms Davies has not alleged, and could not realistically have alleged, that the dispute between Diversiti and her was a consumer and trader dispute as defined in Part 9 of the Fair Trading Act which VCAT has jurisdiction to hear and determine. For the person with whom Diversiti had a contractual relationship was INS, not her personally, and so any supply of services to or by Diversiti was made by or to INS. The only head of jurisdiction for VCAT under the Fair Trading Act available to Ms Davies personally is the jurisdiction conferred by section 159 to hear and determine a claim by a person for recovery of alleged loss or damage caused by an alleged contravention of a provision of the Fair Trading Act.

2. One provision of the Fair Trading Act which Ms Davies has alleged that Diversiti contravened by maintaining the entry in its database is section 9, which prohibits a person from engaging, in trade or commerce, in conduct which is misleading or deceptive or is likely to mislead or deceive. She has also alleged that the maintenance of the entry contravened other provisions of that Act. For present purposes it is not necessary to elaborate. The contravening conduct relied upon has been the maintenance of the entry.

3. On 28 January 2009, only 26 days after she had filed the initiating application, Ms Davies filed with the Tribunal a letter enclosing a document which she described in the letter as a "revised application". In that document she stated that the sum she was claiming was $622,800.00, as follows:

[1] The Applicant claims an amount of $622,800 from Diversiti's actions.

[2] Damage relates to false information created at Diversiti about the Applicant's involvement at Telstra (77 weeks), and NAFM (13 weeks) and unspecified damages from the false information being accessible to recruitment consultants over a period of 4 years at Diversiti. (1999-2003).

[3] Damage re Telstra is calculated as follows (Excludes performance and completion bonuses):

Rate (18) * Num hours/week * Num of Weeks = (30.00 *40*77 =$92400)

Rate (26) * Number hours/weeks * Number of Weeks = (60 *40*13 =$31,200)

[5] Damage for retaining the false information for a period of 4 years

(rate at 1999 (26) *Num of hours/Week "Number of weeks = (60*40*52*4 =$499,200)

[6] Total damage claimed ($92400 + $31200) = $123600 Plus $499,200 for 4 years =$622,800

1. It does not appear that Ms Davies ever obtained leave to amend her application so that she could increase the amount claimed, but no doubt she would have been given leave if she asked for it, and, when pursuing its prior application under section 75(1) of the VCAT Act for summary dismissal, Diversiti seemed to proceed on the footing that her claim was for that sum.

2. That is how the proceeding stood as at 20 May 2009 when Diversiti filed its first application brought under section 75(1) asking for an order for summary dismissal.

1. Diversiti's first application brought under section 75(1) relied on several grounds. It is necessary to refer to only one of them, because that was the only ground relied upon again during the hearing of the second application. That one ground was that the proceeding was totally lacking in substance, and bound to fail, because it was statute-barred: it had been commenced more than six years after the date on which the cause of action accrued, contrary to section 159(3) of the Fair Trading Act.

2. Senior Member Lambrick rejected that ground, as well as all the other grounds, and dismissed Diversiti's application. The Senior Member's reasons for decision revealed that there were two reasons why she rejected the argument that section 159(3) clearly operated as a bar to the proceeding. In setting them out, I am reversing the order in which they appeared in the reasons for decision.

3. One reason was that the material before the Senior Member, particularly the details of the claimed loss and damage which I have quoted in paragraph 18 above from the "revised application" document, did not enable one to be sure that Ms Davies' cause of action under section 159 accrued upon a date more than six years before 2 January 2009 when Ms Davies commenced this proceeding. The reasoning was built upon a correct footing that, certainly as a general rule and arguably as an invariable rule, a cause of action under section 159 accrues on the date that the applicant first suffers loss and damage as a result of the contravening conduct. The "revised application" document did not specify a date upon which loss and damage first occurred. It identified only a period of four years, including 2003, during which loss and damage occurred. If the first occurrence was in 2003, the proceeding would have been commenced within time. Ironically, it was the very vagueness of expression of Ms Davies' claim which assisted the conclusion that the date upon which the cause of action accrued could not be determined with certainty.

4. The other reason was that the Senior Member regarded it as arguable that section 126(1) of the VCAT Act enabled Ms Davies to apply to the Tribunal for an order extending the time for the commencement of the proceeding and thereby, in effect, validating the proceeding even if it had been commenced more than six years after the cause of action had accrued. Section 126(1) provides:

1. Extension or abridgment of time and waiver of compliance

(1) The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.

Being an enactment that confers jurisdiction upon the Tribunal, by virtue of Part 9 and of section 159, the Fair Trading Act 1999 is an "enabling enactment" as defined in section 3 of the VCAT Act.

1. In my opinion the proper interpretation of the Senior Member's reasons for decision is that she did not decide that section 126(1) of the VCAT Act empowers the Tribunal to extend the six-year period stipulated for in section 159(3) of the Fair Trading Act, but decided only that it was arguable that the Tribunal was so empowered. I say that because the Senior Member stated only that Diversiti did not argue before her that section 126(1) had no application to the time stipulation in section 159(3). She did not positively rule that it did have application, but considered the matter on the hypothesis that it did, Diversiti not having submitted that it did not.

1. Diversiti's first application under section 75(1) for summary dismissal was dismissed on 7 September 2009.

2. On 16 December 2009, at a directions hearing, Deputy President Steele made an order requiring Ms Davies to file and serve by 26 February 2010 a document which set out further and better particulars of the claimed loss and damage, and of how and when each component was incurred, and stating that the proceeding was dismissed if by that date Ms Davies had not filed and served a document that purported to comply with the order.

3. On 26 February 2010, in purported compliance with that self-executing order, Ms Davies filed two documents, one headed "Further and Better Particulars (Damages)" and the other headed "Further and Better Particulars (Damages)(2)". Only the first of those documents contained a calculation of loss and damage or any allegation of when loss or damage incurred. It repeated that the sum claimed was $622,800.00 but set out in a different way how that sum was arrived at. The calculation can be summarised as follows.

(a) Value of a lost Telstra contract, September 1999 -

(b) Damages for "false information being accessible to

recruitment consultants over a period of four years"

(c) Damages for "false information ... at NAFM (13 weeks)": $31,200.00

(d) Damages for "retaining false information for a period

1. That is how the proceeding stood as at 19 March 2010 when Diversiti filed its second summary dismissal application, in reliance upon both section 78(2)(a) and section 75(1) of the VCAT Act.

2. On 16 April 2010, three days before the application was due to be heard, Ms Davies filed another document headed "Further Particulars for Damage (III)". She filed it by attaching it to the written submissions, bearing Mr Antill's name, filed on that same day, 16 April 2010.

3. Insofar as the "Further Particulars for Damage (III)" document claimed a specific figure, that figure was no longer $622,800.00 but was $371,000.00. In addition it purported to claim an unspecified amount for "intangible loss and damage".

4. As to the specific sum of $371,000.00 claimed for "tangible" loss and damage, I endeavour to summarize the calculation of it as follows.

• (i) September 1999 to February 2000 - loss from

(ii) June 2000 and July 2000 - following "a completed

(iv) March 2002 to December 2002: $95,000.00

(v) December 2002 to December 2003: $190,000.00

1. In respect of each of those five periods, the document gave a calculation of the sum claimed in respect of it, based upon a daily rate at which Ms Davies had offered her or INS's services during that period, multiplied by the number of days in the period, less any amount which she or INS actually received in income during the period from occasional work.

2. In the document Ms Davies added two items of claim for "intangible loss and damage", or "unspecified intangible loss of opportunity". For a reason which has not been apparent to me, the two items effected a division of that claim into two periods, one from September 1999 to February 2000 and the other from 1999 to 2009. The two items were very difficult to understand.

3. Because Mr Pizer relied upon it in his written submission in reply, I need to mention one other feature of the "Further Particulars for Damage (III)" document. In paragraph 6a of the document, which introduced the head of claim which I have summarized as point (i) in paragraph 32 above, Ms Davies stated:

1. On or about 15 July 1999 as a result of the actions of the Respondent, the Applicant suffered Tangible and intangible loss and damage from an aborted contract for work required by Telstra between September 1999 to February 2000.

Mr Pizer relied upon that sentence as being an assertion that the cause of action accrued, because the loss and damage began, on 15 July 1999, the very day that Diversiti made the entry in its computer database. It followed, Mr Pizer submitted, that this proceeding is statute-barred.

1. In my opinion, a fair reading of the document as a whole establishes that Ms Davies did not intend to make, and did not actually make, that assertion. Elsewhere in the document she was careful not to allege that any loss and damage had occurred before 1 September 1999. The calculation of loss in that document, and in the earlier "Further and Better Particulars (Damages)", began from September 1999. She must have appreciated that the Fair Trading Act commenced operation on 1 September 1999 and that any conduct which occurred before that date could not possibly be conduct which contravened a provision of the Fair Trading Act. Alleging that loss and damage occurred before that date would imply an allegation that the conduct occurred before that date, and would invite not only a submission that the proceeding was statute-barred but also, and more fundamentally, a submission that the Tribunal simply had no jurisdiction to hear and determine the proceeding because section 159 of the Fair Trading Act could not possibly be the source of jurisdiction.

2. In my opinion, a fair reading of the documents which Ms Davies has filed in this proceeding, taken as a whole, is that the contravening conduct which she alleges is not the actual making of the entry but rather the maintenance of it in Diversiti's records after 31 August 1999 until its removal on whatever date it was in 2003, and that the consequent loss and damage which she alleges began on some date after 31 August 1999. Of course, by saying "on some date", I am demonstrating how obscure that date, whatever it is, has been made.

The power under section 78(2)(a) of the VCAT Act to order that a proceeding be dismissed or struck out exists if section 78 applies. By virtue of section 78(1), the section applies "if the Tribunal believes that a party is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding". Section 78(1) goes on to give non-exclusive examples, in sub-paragraphs (a) to (g), of conduct that would unnecessarily disadvantage another party. Diversiti has relied upon the example in sub-paragraph (a): "failing to comply with an order or direction of the Tribunal without reasonable excuse."

Ms Davies filed and served documents that purported to comply with the order of Deputy President Steele made on 16 December 2009. Diversiti has submitted that the documents nevertheless did not comply with the order because they inadequately detailed each component of the claimed loss and damage. The documents in question have now been superseded by the "Further Particulars of Damage (III)". So it would be artificial to consider now whether the documents filed on 26 February 2010 did properly comply with the order, and inappropriate to contemplate a summary dismissal or striking out of the proceeding if they did not.

But Diversiti has also made the more appropriate complaint that Ms Davies has generally conducted the proceeding in a way that has unnecessarily disadvantaged it. I think it is obvious that that complaint is justified. There have now been four different versions of the alleged loss and damage and three different figures given for the total amount claimed. Each version has become more informative than its predecessor, but even in the "Further Particulars of Damage (III)" there is much that is obscure and some that is unintelligible. The greatest shortcoming of each version of Ms Davies' claim is the absence of any clear allegation of when and how any and which potential user of her services was induced by the entry in Diversiti's database to decide against using her services. The vagueness of the claims unnecessarily disadvantages Diversiti in preparing to defend the proceeding. So the pre-condition for the exercise of the discretion conferred by section 78(2)(a) exists.

The discretion is one that should only be exercised when there is no other way to achieve a just outcome. In Bell Corporation Victoria Pty Ltd v Stephenson [2003] VSC 255; (2003) 20 VAR 280 at page 298 Ashley J. emphasised the seriousness of the consequences of the making of an order under section 78 and stated that the remedy should be one of last resort. His Honour referred to the Tribunal's obligation under section 97 of the VCAT Act to act fairly and according to the substantial merits of the case, and stated that that section imported the concept that ordinarily the interests of case management should not be employed so as to shut a party out of litigating its case.

In my opinion the circumstances of this case are a long way from any which would justify the Tribunal in using the remedy of last resort. Diversiti is being disadvantaged but there are other ways of attempting to remove or reduce the disadvantage. It is open to Diversiti to apply for, and for the Tribunal to make, orders requiring Ms Davies to give further particulars still where there is an absence of particulars or where the existing particulars are obscure or insufficiently informative.

I decline to dismiss or strike out this proceeding pursuant to section 78(2)(c) of the VCAT Act.

1. In Carr v Finance Corporation of Australia Ltd (No. 1) [1981] HCA 20; (1981) 147 CLR 246 at page 248, Gibbs C.J., speaking of a second application by a defendant to set aside a default judgment against it after a prior application had failed, stated:

In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application.

In D.A. Christie Pty Ltd v Baker [1996] VicRp 89; (1996) 2 VR 582 Brooking JA. (at page 595) interpreted Gibbs C.J.'s statement as being an acceptance that a second application to set aside a default judgment will fail if the first application has been dismissed on the merits, and adopted that statement, while acknowledging that it might not necessarily have reflected the view of the other members of the High Court in Carr. Brooking JA. and Hayne JA., the majority in the Court of Appeal, allowed an appeal from a decision of a County Court judge granting an extension of time within which to commence a proceeding under section 23A of the Limitation of Actions Act 1958 after an earlier application for extension of time had failed.

In Guss v Magistrates' Court of Victoria (1998) 2 VR 113 Batt J. considered an appeal from a decision of a Magistrate which had allowed a third application to set aside a default judgment. His Honour regarded Carr and D.A. Christie Pty Ltd v Baker as having established that, except where there has been a dismissal of the first application for a technicality or where there is fraud or where new evidence becomes available after the dismissal of the first application and there is an explanation why it could not have been relied upon at the time of the hearing of the first application, a second interlocutory application is doomed to failure. In Stragan & Co. Pty Ltd v Christodolou (2002) VSC 78 Beach J. followed the decision of Batt J. in Guss and set aside an order of a Magistrate who had allowed a second application to set aside a default judgment even though there was no fresh evidence.

In Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd (2006) VSC 170 the Senior Master had refused a second application to reinstate the proceeding, stating that the decisions in Guss and Stragan obliged him to act so because there was no new evidence or material which was not available and could not have been available to the plaintiff upon the hearing of the first application. An appeal from the Senior Master's decision came before Hargrave J. The defendant submitted that the making of the second application was an abuse of process. The parties asked Hargrave J. to rule upon that preliminary submission. His Honour ruled that the making of the second application was not an abuse of process. His Honour did not decide the appeal. But his Honour's decision was, in effect, that the absence of any fresh evidence did not debar the plaintiff from making the second interlocutory application.

His Honour decided that, for two reasons, he was not bound by the decisions in Guss and Stragan and should not follow them. The first reason was that his Honour concluded that the majority of the Court of Appeal in D.A. Christie Pty Ltd v Baker was not laying down any general rule on the question of whether or when a second interlocutory application, after the failure of a first, was permissible. The second reason was that there had been developments in the law. A Court of Appeal decision in New South Wales, Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139, had declined to follow the majority decision in Christie. In Philip Morris Ltd v Attorney-General for the State of Victoria & Lindsey (2006) VSCA 21 Maxwell P. had, in the view of Hargrave J., indicated a preference for the approach of the New South Wales Court of Appeal. In the meantime, Mandie J. in Global Realty Development Corp. v Dominion Wines Ltd (in Liq.) (2005) VSC 474 had rejected a submission that Christie established a general rule governing interlocutory applications.

Hargrave J. concluded (at para. [45]) that "it is undesirable that there be a set of rigid rules to be applied in every case where a second interlocutory application is made after the refusal of a first application for the same relief", and (at para. [46]) that the correct approach to such a second interlocutory application was stated by the New South Wales Court of Appeal in Manning to be that "the court should do whatever the interests of justice require in the particular circumstances of the case". His Honour considered that that approach was consistent with a statement of Brooking JA. in Christie, at page 597, that it is "open to the court to exercise a wide discretion in the interests of justice in considering whether an applicant who has failed on the merits may nonetheless succeed on a second application".

In Global Realty Mandie J. pointed out (at para. [21]) that a litigant making a second interlocutory application for the same relief as had been sought in an earlier failed application was "taking serious and self-created risks of an adverse exercise of judicial discretion".

In the Federal Court, Goldberg J. in P. Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No. 2) [2009] FCA 413; (2009) 255 ALR 466 interpreted (at para. [49]) the authorities, including Christie and Manning as identifying four circumstances, one or more of which must have occurred or be satisfied before such a second application should be countenanced:

(a) there is new material or new evidence which was not available to the applicant at the time that the orders in the first application were made;

(b) there has been a material change in the circumstances since those orders were made;

(c) there are exceptional circumstances which warrant the reconsideration of the matter;

(d) as a matter of discretion, the justice of the matter required that the applicant be allowed to revisit it.

1. In N.A. Retail Solutions Pty Ltd v St. George Bank Limited (2010) FCA 290, decided on 30 March 2010, Cowdroy J. of the Federal Court followed and applied Goldberg J's decision.

2. Probably I am bound to follow the decision of Hargrave J. in Tenth Vandy rather than earlier decisions of single Supreme Court judges because of the carefully considered reasons his Honour gave for not following those earlier decisions. In any event I consider that I should follow it because of the support it gets from the New South Wales Court of Appeal and Federal Court authorities to which I have referred.

3. So the law, as I understand it, is that there is no rigid rule that confines the capacity to bring a second interlocutory application, after the failure of the first seeking the same relief, to particular instances. A court or tribunal has a discretion to permit and grant such a second application if it is in the interests of justice to do so. On the other hand, there never was, and still is not, an untrammelled right to bring such a second application. The applicant must persuade the court or tribunal to exercise the discretion positively. While the discretion is wide, its exercise may be guided by consideration of the instances given, in cases cited above, of good reason to exercise the discretion in the applicant's favour: if the first application was dismissed for technical reasons rather than on its merits, or if fresh and previously unavailable evidence has emerged, or if there has been a material change in circumstances. There may be good reason of a different kind. But good reason there must be.

1. Before I come to consider the exercise of the discretion to allow this second interlocutory application I need to deal with some matters raised in the written submission bearing Mr Antill's name on which Ms Davies relied. The matters were put forward as reasons why Diversiti's application under section 75(1) of the VCAT Act was not legally permissible.

2. The first matter was a submission that the present application under section 75(1) is an "abuse of process" because the proper process was an appeal from Senior Member Lambrick's decision and an application under section 75(1) should not be used as a substitute for the exercise of rights of appeal. It is true that Diversiti could have sought leave to appeal from the Senior Member's decision and has not done so. But as the law confers a discretion to allow a second section 75(1) application it is no answer to that application to say that the unsuccessful party on the first application could have sought leave to appeal instead. The phrase "abuse of process" in the submission echoed its use in Tenth Vandy and the earlier authorities discussed in that case, although the point being taken in the submission was not quite the same as the point of discussion in Tenth Vandy. For reasons I have given, the law appears to be that it is not an abuse of process to bring a second interlocutory application after the failure of a first interlocutory application that sought the same relief.

3. The second matter was a submission that, because Senior Member Lambrick had decided that the time limit imposed by section 159(3) of the Fair Trading Act could be extended pursuant to section 126(1) of the VCAT Act, there was an issue estoppel preventing Diversiti from re-agitating that issue upon the hearing of the present application. The submission was built on the erroneous assertion that the Senior Member had decided that issue. She had not. She had decided only that it was arguable that the time limit could be extended in that way, that is to say, that it was arguable that the power to extend conferred by section 126(1) of the VCAT Act was applicable to section 159(3) of the Fair Trading Act. She did not decide that section 126(1) was indeed so applicable. I agree with Mr Pizer's submission that there can be no issue estoppel with respect to any issue concerning section 126(1) decided by the Senior Member because, as the Senior Member stated in her reasons, Diversiti had not raised or argued the issue. An issue estoppel can arise only if it was "distinctly put in issue" or "distinctly raised", then decided: Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at page 460; Kuligowski v Metrobus (2004) 220 CLR 361 at para. [61]; Mraz v R [1956] HCA 54; (1956) 96 CLR 62 at page 69.

4. The third matter was a submission that, even if Senior Member Lambrick's decision did not create an issue estoppel, it at least created an "Anshun estoppel" precluding Diversiti from agitating upon the present application arguments about the applicability of section 126(1) which it could have raised upon the hearing of the earlier application but did not. The reference to an "Anshun estoppel" is a reference to the principle re-stated in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, that a party cannot in a second proceeding present a case that it could have presented at the hearing of the first proceeding but did not. I agree with Mr Pizer's submission that the Anshun principle operates only where a second proceeding has been brought after a first proceeding has been heard and determined, and has no operation in respect of interlocutory applications within a single proceeding. The very fact that the law confers a discretion to grant a second interlocutory application after an earlier application seeking the same relief has failed must mean that Mr Pizer's submission is correct. No "Anshun estoppel" operates in the present case.

Diversiti has submitted that, whereas it may not have been clear at the time of the hearing of the first application that Ms Davies' cause of action under section 159 of the Fair Trading Act was statute-barred, it is clear now. It relies upon the fact that Ms Davies' "Further and Better Particulars (Damages)" filed on 26 February 2010 alleged that she had suffered loss and damage between September 1999 and January 2000 (see item (a) in the summary given in paragraph 28 above), and that her "Further Particulars for Damage (III)" filed on 16 April 2010 alleged that she had suffered loss and damage between September 1999 and February 2000 (see item (i) in the summary given in paragraph 32 above). Those losses were said to have arisen from a lost contract, or an aborted contract, with Telstra.

The fact that Ms Davies had filed those additional or different particulars of her alleged loss and damage after the first application brought under section 75(1) of the VCAT Act had been dismissed is something that Diversiti can legitimately call in aid as a reason why I should exercise the discretion to countenance, and grant, this second application made under section 75(1), even though it relies on the same ground as the earlier application. That ground is that the proceeding is statute-barred, and therefore lacking in substance and doomed to fail, because it has been commenced more than six years after the cause of action accrued, contrary to section 159(3) of the Fair Trading Act.

In making the submission, Mr Pizer correctly conceded that an order should be made under section 75(1) dismissing a proceeding only if the proceeding is obviously hopeless and bound to fail. In the context of the present case, that is a correct concession that the proceeding should not be dismissed unless it is absolutely clear that Ms Davies' cause of action accrued more than six years before the proceeding was commenced on 2 January 2009.

The cause of action under section 159 of the Fair Trading Act occurs when the damage occurs, that is to say, when loss or damage first occurs as a consequence of the contravening conduct. That is the general rule laid down in authorities including Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at page 525. It may be an invariable rule. If it is not invariable, I nevertheless see nothing in the circumstances of this case which would take it outside the operation of the general rule. So Ms Davies' cause of action accrued on the date when she first suffered a loss as a result of the entry having remained in Diversiti's database.

In her oral submission to me Ms Davies asserted that her cause of action did not accrue until she first became aware of the entry on some date in 1993, less than six years before she commenced this proceeding. As a matter of law, that assertion is wrong: see Jobbins v Capel Court Corporation Ltd [1989] FCA 538; (1989) 91 ALR 314 at page 318.

If Ms Davies proves her allegation that losses which she incurred between September 1999 and February (or January) 2000 were the result of the entry having remained in Diversiti's database, then it will be clear that her cause of action had accrued more than six years before she commenced this proceeding. But matters are not so simple. She has made that allegation but may not prove it. She has also alleged that she has suffered loss and damage during discrete periods up to the end of 2003, and "intangible" loss and damage thereafter. Suppose that there is no evidence that any prospective user of her services relied in any way upon the entry prior to (say) February 2003, but at the hearing of the proceeding there is proof that a prospective user, because of knowledge of the entry which the user gained in February 2003, decided against using her services, with the result that Ms Davies suffered loss in February 2003. On the evidence, despite Ms Davies' allegations of earlier loss and damage, her cause of action would not have accrued until February 2003, within the six year window available under section 159 of the 1999 Act.

Apparently in anticipation of that contingency, Diversiti in its application dated 19 March 2010 asked in the alternative for an order summarily dismissing or striking out the proceeding "insofar as the applicant seeks to recover loss allegedly suffered before 2 January 2003". The making of such an order might be counter-productive. It would tend to narrow the scope of relevant factual enquiry at the hearing of the proceeding. Paradoxically, Diversiti might need itself to prove that Ms Davies suffered loss and damage earlier than 2 January 2003 as a result of the entry, to make out a defence that the proceeding to recover loss and damage, whenever it occurred, is statute-barred. The making of such an order might inhibit it from calling evidence to make out that defence. The words of the majority of the High Court in Wardley Australia Ltd v Western Australia Ltd, above, at page 533, are appropriate:

We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.

I refer again to the two reasons which Senior Member Lambrick gave for dismissing the first application. One was that it was not clear from Ms Davies' allegations of loss and damage, as they then were, when the cause of action had accrued. Matters in that respect have changed. There are different particulars of loss and damage. They tend to make the picture clearer as to when the cause of action accrued, although it is not "the clearest of cases", to use the High Court's words. The other was that it was arguable that Ms Davies could utilize section 126(1) of the VCAT Act to obtain an extension of time for the commencement of the proceeding to a date more than six years after the date on which the cause of action accrued. Matters in that respect have not changed. There has been no development in the law that would now invalidate that reason.

In asking me to countenance and grant the second application, Diversiti is in effect asking me to decide, contrary to the decision in the first application, that it is not arguable that it is possible to utilize section 126(1) of the VCAT Act to extend the time limit of six years prescribed in section 159(3) of the Fair Trading Act. In other words, Diversiti is asking me to exercise a discretion to countenance and grant a second interlocutory application seeking a summary dismissal of the proceeding, after the failure of a first application, by ruling that that dismissal of the first proceeding was wrong because it reflected an error of law. If I were to do that, it would create an unseemly spectacle of one Tribunal Member second-guessing another and of there being two conflicting decisions. A party who wants to contend that a Tribunal decision, interlocutory or final, is wrong in law can avoid that unseemly spectacle by seeking the leave of the Supreme Court to appeal.

In his written submission Mr Pizer put forward four arguments why section 126(1) of the VCAT Act does not empower the Tribunal to extend the six year limitation period prescribed in section 159(3) of the Fair Trading Act. They were:

• 32.1 First, section 159(3) is not a time limit fixed for the commencement of a proceeding; rather, it is a prohibition on commencing a proceeding after a six-year period has elapsed.
  • 32.2 Secondly, the 1999 Act does not state that section 159(3) is subject to section 126 of the V. Had Parliament intended that to be the case - bearing in mind that the 1999 Act came into force 15 months after the VCAT Act did - it could have said so. It did not.
  • 32.3 Thirdly, the explanatory note to section 159(3) states that the subsection is subject to Part IIA of the Limitation of Actions Act 1958. Division 3 of that Part codifies the limited circumstances in which the limitation period for certain causes of action may be extended. Section 126 of the VCAT Act is not referred to in that Division.
  • 32.4 And fourthly, if section 126 could be used to extend or override a limitation period, then there would be cases where the Tribunal - but not the Supreme Court - could entertain an action under section 159 that was otherwise statute-barred. The Victorian Parliament would not have intended that result.

There is a great deal of force in those arguments, particularly in the fourth. I have not had the benefit of hearing an argument to the contrary. I decline to enter into a consideration of whether a contrary proposition is arguable, and thus to create the risk of the unseemly spectacle which I have described.

By refusing to accede to the second application made under section 75(1) of the VCAT Act for summary dismissal, I am obliging Diversiti to go to the trouble and expense of continuing to defend a proceeding when it might turn out, after all the facts have been investigated or at a final hearing, that any cause of action which Ms Davies has was obviously statute-barred all along. I am not, however, depriving Diversiti of any right to maintain, at a final hearing, and succeed upon, a defence based upon section 159(3) of the Fair Trading Act.

By contrast, if I were to allow this application under section 75(1), I would be forever depriving Ms Davies of the right which a litigant ordinarily has to present a case in full at a final hearing. Not only would I be doing so by necessarily deciding that her case was absolutely hopeless and could not possibly succeed upon any view of it, but I would be doing so after another Senior Member of the Tribunal had determined, on a similar application, that her case was not absolutely hopeless and ought to be allowed to proceed to a final hearing. Any litigant in Ms Davies' position would be entitled then to think that justice had not been done.

I consider that no good reason has been shown why I should exercise a discretion in favour of allowing this second application under section 75(1).

1. I shall order that Diversiti's application dated 19 March 2010 is dismissed.

2. Before Diversiti had filed that application, the Tribunal had directed that the parties should attend a compulsory conference on 28 April 2010. On 19 April 2010 I vacated the date for the compulsory conference and directed that it should not be re-fixed until further order. I shall now order that it be re-fixed.