On 11 December 2008 I heard, and granted, the respondent's application for an order striking out the proceeding. The respondent's application was made in an affidavit of Robert Anthony Ewing sworn on 20 October 2008 and filed on that date. The application was made pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998. It alleged that the proceeding was an abuse of process.

Although I gave oral reasons for my decision on 11 December 2008 striking out the proceeding summarily pursuant to section 75, Mr Hamilton on 18 December 2008 asked for written reasons for the decision.

Before the hearing, Mr Hamilton had sworn an affidavit dated 5 November 2008 and had served it upon the respondent. Although that affidavit has never reached the file in this proceeding, the parties agreed that I could treat the affidavit as having been duly sworn and filed. I received a copy of it during the hearing.

Mr Hamilton and his brother Alan Hamilton are joint administrators of the estate of their late mother. On 17 October 2006 Alan Hamilton entered into a costs agreement with the respondent solicitors and gave them instructions, purportedly on behalf of the estate, for proposed proceedings against the owner of a property next to the late mother's property. The solicitors rendered invoices for costs for work done. The invoices totalled $17,133.16.

Alan Hamilton commenced proceedings no. J98/2007 against Russell Kennedy, challenging the invoices and claiming that the solicitors had not complied with legislative obligations to give estimates of the costs. That proceeding came on for hearing before Senior Member Howell on 12 February 2008. The hearing took three days. In the course of the hearing Mr Hamilton applied to be joined as co-applicant. His application was granted and he was joined as a second applicant.

On 14 February 2008 Senior Member Howell made an order, and gave written reasons for decision, in proceeding no. J98/2007. A copy of the order and of the written reasons were exhibited to Mr Ewing's affidavit. In effect, the Senior Member rejected the challenge to the invoices, except that he reduced their total sum by $409.20 so that the total amount which he ordered to be paid to the solicitors was $16,723.96. He also ordered that interest be paid on that sum, "calculated in accordance with the costs agreement between the first named applicant [Alan Hamilton] and the respondent", fixed at $2,125.37.

No attack upon the validity or efficacy of the costs agreement was made during the hearing before Senior Member Howell. In his affidavit Mr Hamilton deposed, however, that he had had such an attack in mind but had decided not to make it. In paragraph 7 of his affidavit he deposed:

On 14 February 2008 and very soon after the commencement of the hearing, I raised the issue that there was no basis for the respondent to charge legal fees because, by contracting with my brother alone, the respondent had ignored legal obligations owing to the represented person (our mother) that arose under her Joint Administration. The Senior Member indicated that this was not an issue that could be addressed as part of my brother's application as he had not raised it. The Senior Member further stated that thought it could be heard as an amendment to my brother's application, his current schedule was tight. I understood from the Senior Member's response that there was insufficient time to have the amendment heard as part of the current hearing. I resolved to bring the issue before VCAT if my brother's application was unsuccessful. The respondent's deponent in these proceedings, Mr Ewing, was at all times present during my raising of the Joint Administration issue at the hearing, as he was for the Senior Member's response.

In its application for an order for summary striking-out of the present proceeding, the respondent contended that it was legally improper, and hence an abuse of process, for Mr Hamilton to attempt to make an attack now upon the validity or efficacy of the costs agreement.

Section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 provides that the Tribunal may make an order summarily dismissing, or striking out, all or any part of a proceeding which is (amongst other things) misconceived or an abuse of process.

The power to dismiss or strike out a proceeding summarily should be exercised with caution. It is a serious matter to deprive a litigant of a hearing of the litigant's claim in the ordinary course. Accordingly the power should be exercised only in a case which is clearly and absolutely hopeless, or is bound to fail because there is an unanswerable defence to it. This is such a case.

The most obvious peculiarity of the case is that the applicant Mr Hamilton was not a party to the costs agreement which he is seeking to have declared void. The costs agreement was between the solicitors and his brother. As matters stood at the time of the hearing before me, the proceeding could not have succeeded because Mr Hamilton had no standing to seek an avoidance of a costs agreement to which he was not a party. Had Alan Hamilton consented to being joined as an applicant, that defect in the proceeding could have been cured. Presumably that was why the respondent did not, in the hearing before me, take any point about Mr Hamilton's lack of standing.

Instead the respondent solicitors submitted that either as a consequence of Senior Member Howell's decision in proceeding no. J98/2007 or a consequence of the way in which the hearing of that proceeding was conducted Mr Hamilton is now estopped from challenging the validity of the costs agreement and that the present proceeding is therefore an abuse of process. I agree with the submission.

Underlying the invoices which the respondent solicitors rendered to Alan Hamilton was a costs agreement. That is one of the alternative bases upon which, under the Legal Profession Act 2004, legal costs are recoverable: section 3.4.19(a). Senior Member Howell's decision determined, once and for all, the costs which the respondent solicitors were entitled to recover. That determination created an issue estoppel, covering those matters which the determination necessarily established as the legal foundation or justification of the conclusion that the solicitors were entitled to costs of $16,723.96: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531. The legal foundation for the determination included the costs agreement. Mr Hamilton is estopped from putting the validity or efficacy of the costs agreement in issue in this proceeding.

It is true that Senior Member Howell's reasons for decision did not express any finding about the costs agreement. They merely mentioned that the costs agreement existed. The validity of the costs agreement was assumed rather than explicitly decided. That is because its validity was not put in issue explicitly. The controversy was about estimates or the lack of them. On the other hand, in paragraph 3 of his order the Senior Member, in awarding interest upon the sum of $16,723.96, stated that the interest was "calculated in accordance with the costs agreement." That paragraph, if nothing else, demonstrated that the validity of the costs agreement was implicitly decided. I consider that the order and the written reasons for it, as a whole, necessarily established the costs agreement as the legal foundation for the award of $16,723.96 in respect of the invoices rendered; but even if that view is wrong, I think that there can be no doubt that the costs agreement was necessarily established as the legal foundation for the award of interest.

There is an unanswerable defence of issue estoppel to the claim made in this proceeding. It is an abuse of process for Mr Hamilton to attempt to raise for fresh adjudication the issue of the validity or efficacy of the costs agreement, that issue having been determined in the earlier proceeding to which he and the respondent solicitors are parties.

If I am wrong in deciding that there has been an issue estoppel, I would uphold the respondent's alternative argument, that Mr Hamilton is estopped according to the application of the principle expressed in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 598. The principle is that when a party to litigation asks for a determination by a court the party is required to bring forward its whole case, and is not permitted in later litigation to open the same subject of litigation in respect of matter which might have been brought forward but was not.

Mr Hamilton could have brought forward, but did not bring forward, during the hearing of the earlier proceeding the case that he now wants to make in this proceeding, namely, that the costs agreement was void because (as he put it in paragraph 7 of his affidavit) "by contracting with my brother alone, the respondent had ignored legal obligations owing to the represented person (our mother) that arose under her Joint Administration". In that paragraph he explained why he did not. When he raised the issue (he said) the Senior Member pointed out that it had not been raised previously, stated that the raising of it would require an amendment to the application before him, and implied that the amendment and the ventilation of the issue might lead to the hearing not being completed in the time available ("his current schedule was tight") and hence might lead to the proceeding being adjourned part heard. He did not allege that the Senior Member refused to allow him to raise the issue or at all, or refused to hear him on the matter. On the contrary, he stated that he "resolved" not to raise the issue during that hearing but to keep it in reserve for a further VCAT application.

What Mr Hamilton resolved to do was something which, by virtue of the principle expressed in the Anshun case, the law does not permit a litigant to do. Before the question of the amount to which the respondent solicitors were entitled was determined once and for all, the issue of whether the validity of the costs agreement was affected by both joint administrators not having been parties to it ought to have been raised if it was to be raised at all. Had the issue been raised and then determined by Senior Member Howell in favour of Mr Hamilton and his brother, the amount to which the respondent solicitors were entitled might have been determined differently.

Accordingly I consider that the application of the Anshun principle creates another unanswerable defence to the claim made in this proceeding.

The public interest in the finality of litigation underlies both the principle of issue estoppel and the Anshun principle. Senior Member Howell's determination of the amount of legal costs payable to the respondent solicitors was final. Were Mr Hamilton to be permitted to pursue in this fresh proceeding the contention that the costs agreement was void and hence that the solicitors were not entitled to legal costs (and interest thereon) calculated in accordance with the costs agreement, there would be created the possibility of inconsistent decisions and inconsistent orders in the two proceedings. To permit a litigant to impugn a previous final order in that way would be contrary to the public interest in the finality of litigation. The attempt by a litigant to do that is an abuse of process.

For those reasons the proceeding was struck out summarily pursuant to section 75(1) of the VCAT Act.

The respondent solicitors applied for an order for compensation pursuant to section 75(2). In effect, the compensation sought was an order for costs, on an indemnity basis. I made an order for costs because Mr Hamilton, as a legal practitioner himself, ought to have known that this proceeding was bound to fail. I saw no justification, however, for awarding costs on an indemnity basis, and awarded them on a party-party basis.