The Tribunal ordered that Skinner Marine pay Mr Ravenscroft nearly $8,000 to compensate him for the cost of repairing a boat. The question in this appeal is whether the making of that order creates an estoppel on which Skinner Marine was entitled to rely in later proceedings. In our view it did because the cause of action in the first proceedings was the same as the cause of action in the second proceedings. The Tribunal did not make a legal error in dismissing the second proceedings.
[2]
How the question arises
Mr Ravenscroft bought a boat from Mr and Ms Skinner, trading as Skinner Marine. When Mr Ravenscroft had problems with the boat he lodged an application with the Tribunal claiming that Skinner Marine had engaged in misleading or deceptive conduct or had breached the consumer guarantee to provide goods of acceptable quality: Australian Consumer Law (ACL) (NSW), s 18(1) and s 54(1).
The Tribunal found that:
1. Skinner Marine had told Mr Ravenscroft that the motor had not long ago had a complete overhaul;
2. that statement was a misrepresentation and Mr Ravenscroft would not have purchased the boat but for that misrepresentation; and
3. the engine and leg of the boat were not of acceptable quality.
The Tribunal ordered Skinner Marine to pay damages of $7,907.65.
Four months later, Mr Ravenscroft lodged a second application. He sought an order for $12,601.00 to replace the "unrepairable engine" of the same boat. The Tribunal dismissed the application because the first decision created an estoppel on which Skinner Marine was entitled to rely in the second proceedings. The Tribunal found that the following issues had been determined in the first proceedings:
1. the nature of the representation that Skinner Marine had made about the quality of the boat;
2. whether the boat was of acceptable quality; and
3. what, if any, damages should flow from the findings in relation to the first two issues.
The Tribunal concluded that there was an "issue estoppel" and that the proceedings could not be maintained. Alternatively, the Tribunal concluded that an "Anshun" estoppel prevented the application from proceeding: Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 389.
[3]
Is the question a question of law?
The question of whether the making of the first decision creates an estoppel on which Skinner Marine was entitled to rely in later proceedings is a question of law. Mr Ravenscroft is entitled to appeal to the Appeal Panel on such a question: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b).
[4]
Consideration of the question
The High Court has recently outlined the nature of issue estoppel and how it works in practice: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [21] and [22]. The following discussion summarises the principles the High Court explained in that decision.
Issue estoppel in relation to judicial determinations is a common law doctrine informed by considerations of finality and fairness. It operates "as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law": Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [21] citing Jackson v Goldsmith (1950) 81 CLR 446 at 446. The High Court has identified three forms of estoppel: cause of action estoppel, issue estoppel and Anshun estoppel.
Cause of action estoppel prevents a party from asserting in a subsequent proceeding a claim to a right or obligation which was asserted in earlier proceedings between the same parties and in relation to which a final judgment or decision was made. That doctrine applies to the facts of this case because the second proceedings were based on the same claim or cause of action that Mr Ravenscroft made in the first proceedings. That claim was that when supplying the boat, Skinner Marine engaged in deceptive or misleading conduct in breach of s 18 of the ACL (NSW) or that Skinner Marine had breached the consumer guarantee in s 54 of the ACL (NSW). The Tribunal determined those claims in the first proceedings and awarded Mr Ravenscroft damages.
The Tribunal relied on the second form of estoppel, issue estoppel, to dismiss the second proceedings. That doctrine operates "to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination" made in the first proceedings: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [22]. It operates regardless of whether the cause of action is the same in each proceeding. In our view, the second proceedings did not just raise certain issues of fact and law that had been resolved in the first proceedings; the cause of action was the same.
Alternatively, the Tribunal relied on the third form of estoppel, Anshun estoppel, to dismiss the second proceedings. The High Court has described that form of estoppel as an extension of the first and second forms: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [22]. It operates to preclude the assertion of a claim or the raising of an issue of fact or law "if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding:" Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [22]. The second proceedings were not just connected with the subject matter of the first proceeding; the cause of action was the same.
Regardless of which form of estoppel applies, the Tribunal did not make an error of law. The first decision creates an estoppel on which Skinner Marine was entitled to rely in subsequent proceedings. In our view the form of estoppel created was cause of action estoppel but the doctrines of issue estoppel and Anshun estoppel were also applicable.
It is an abuse of process to attempt to re-litigate issues which have already been determined in previous proceedings: Stokes (by a tutor) v McCourt [2013] NSWSC 1014. The Tribunal had power to dismiss the proceedings as misconceived: NCAT Act, s 55(1)(b).
[5]
Application for costs
Skinner Marine applied for its costs of the appeal. The general rule is that each party pays their own costs: NCAT Act, s 60(1). The Appeal Panel may only award costs if it is satisfied that there are special circumstances warranting an award of costs.
Skinner Marine relied on the following factors in support of their submission that there are special circumstances in this case:
1. the relative strengths of the claims made by each of the parties including whether a party has made a claim that has no tenable basis in fact or law: NCAT Act, s 60(3(c); and
2. whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance: NCAT Act, s 60(3)(e).
When the second application came before the Tribunal the Member told Mr Ravenscroft, who was self-represented, that he doubted that the proceedings were maintainable in light of the earlier proceedings. The Member adjourned the matter to allow Mr Ravenscroft to obtain legal advice on that issue. The matter came back before the Tribunal and Mr Ravenscroft advised that he had obtained legal advice and that he wished to proceed.
After Mr Ravenscroft appealed, Skinner Marine wrote to him to let him know that if they were successful on appeal they would apply for costs. If Mr Ravenscroft withdrew his appeal before 12 April 2016, no application for costs would be made. Mr Ravenscroft declined the offer and proceeded with the appeal. He was also self-represented during the appeal proceedings.
Mere success does not justify an award of costs. There must be special circumstances.
The doctrines of estoppel are complex. A person without legal qualifications and experience would have difficulty understanding what the doctrines are and whether they apply in a particular case. While Mr Ravenscroft's appeal was weak, and he was unsuccessful, it was not so obviously lacking in substance to a layperson that a costs order is warranted.
[6]
Orders
The appeal is dismissed.
The respondents' application for costs is dismissed.
[7]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 18 May 2016