1. Application of Grant Jason Skinner dismissed pursuant to s.75 of the Victorian Civil and Administrative Tribunal Act 1998.

2. Finding that application would also have been dismissed pursuant to s.78.

For the Respondent: Mr Cafari of Counsel, instructed by Slater & Gordon Pty Ltd.

1 This matter comes before me by way of three applications by the Respondent, Slater & Gordon Pty Ltd ("S&G"). The applications are in relation to a claim brought against S&G by Grant Skinner ("Mr Skinner") pursuant to the Fair Trading Act 1999 ("the FTA"). The applications of S&G are that Mr Skinner's claim should be dismissed pursuant to s.78 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"); alternatively that Mr Skinner's claim should be dismissed pursuant to s.75 of the VCAT Act; and alternatively that security for costs should be ordered pursuant to s.79 of the VCAT Act.

2 I shall now set out a summary of the factual background against which these applications are made. This factual summary is based upon witness statements which, together with a large number of attachments, have been provided, and upon other documentation which the parties have placed before the Tribunal. It is also based upon assertions or statements made by the parties from the bar table in relation to which there was no disagreement. The number of documents in this case is very large indeed. In relation to this factual background and my ruling, I shall not deal with or list these documents individually, but shall refer to conclusions which I have reached based upon the documents and upon matters stated, without disagreement, from the bar table. No oral evidence as such was given. Submissions were made. Mr Cafari of counsel appeared on behalf of S&G. Mr Skinner represented himself.

3 Turning to the factual background, Mr Skinner engaged S&G as his solicitors in relation to a dispute between himself and BS Stillwell Motor Company Pty Ltd ("Stillwell") concerning a commercial refrigerated vehicle which Mr Skinner obtained from that company. Finance was organised through a hire purchase company, Ford Credit Finance ("Ford"). I appreciate that Stillwell and Ford are totally separate entities, and indeed at one stage consideration was given to joining Ford as a party to the dispute. However, their interests essentially coincide for the purposes of this ruling. As shall be discussed, the dispute settled at mediation and the terms of the settlement involved Ford to a significant degree. However, Mr Skinner's action itself was solely against Stillwell. Whilst the particular facts of the dispute need not concern us, suffice to say that Mr Skinner issued proceedings out of the County Court of Victoria in which he relied upon, inter alia, the Fair Trading Act 1999 and the Trade Practices Act 1974. He sought substantial damages including loss of profit. The matter was defended. Expert witness statements were obtained. The matter was listed for trial in December, 2003, but settled at mediation in October, 2003. The circumstances in which settlement was achieved are important, and shall be discussed. Mr Skinner's dissatisfaction with the settlement is central to his grievances against S&G, and thus the circumstances in which the settlement occurred are of particular significance. Mr Skinner is now alleging that, in essence, unsatisfactory and negligent service provided to him by S&G resulted in the dispute settling at mediation for a figure far less than would have been achieved had S&G performed its duties in a proper fashion.

4 I shall now turn to a brief summary of the submissions on behalf of each party. As this application was brought by S&G, Mr Cafari advanced his arguments prior to those of Mr Skinner. I should also say that Mr Cafari pointed out that he was conscious of the fact that he was opposed to a litigant in person. Bearing this in mind, he advanced his submissions in a most fair and even-handed way, and his whole presentation and demeanour was a model of how counsel should behave in such a situation. He represented the interests of his client in a clear and forceful way, but also made proper concessions and was extremely courteous both to the Tribunal and to Mr Skinner. Cases where one side is represented by counsel and the other is a litigant in person can be difficult to manage, and often there is the problem of striking the right balance. The behaviour of both Mr Cafari and Mr Skinner made it a much simpler task in this case.

5 I would also point out that Mr Cafari informed me that Mr Skinner, who had come from Queensland for the hearing, originally believed that his application against S&G would be dealt with on its merits, but Mr Cafari had explained to him the nature of the applications that were being made. Whilst I have no doubt that Mr Cafari had given to Mr Skinner a full explanation as to what was being sought, I also gave to him a brief outline as to what it was that S&G was seeking. I am uncertain as to how the confusion arose in Mr Skinner's mind, as there is no suggestion that S&G's application, which is dated 19th October 2006, was not served upon him. Indeed, in an email message sent to this Tribunal and to my Associate on 18th November 2006, Mr Skinner specifically referred to S&G's application of 19th October 2006, describing it as a "strike out motion". Nothing in the ensuing correspondence indicated that what was now before me would be the final hearing on the merits. Be that as it may, the situation was explained to him and he did not seek any additional time. Indeed, when I subsequently offered him the opportunity of time, he declined this, stating that he was in a position to proceed and preferred so to do. He was also offered a copy of the annotated text (Pizer's "Annotated VCAT Act 2nd Edition"), but already had a copy with him.

6 The submissions advanced by Mr Cafari on behalf of S&G could be summarised as follows.

(a) The Application Insofar as it Relies upon s.78

7 Following a compulsory conference on 18th May 2006, Deputy President Levine, as he then was, ordered, inter alia, the filing and serving of witness statements by 3rd August 2006. His orders included a warning in relation to the possible operation of s.78 of the VCAT Act. On 10th August 2006, the matter came on before Member Butcher by way of a Directions Hearing. Witness statements had not been filed by Mr Skinner as at that date. However, Mr Cafari, who also appeared on behalf of S&G before Member Butcher, opted not so seek any striking out order pursuant to s.78 as he was of the view that Mr Skinner, being a litigant in person, should be given a further opportunity, and he would have been surprised if the Tribunal had struck the matter out at that stage. What occurred was that the existing orders were in effect extended so that Mr Skinner was to provide witness statements by 23rd September 2006. Mr Skinner was also ordered to file and serve a document setting out, in intelligible form and in some detail, the respects in which he alleged that S&G did not act on his behalf with all due care, the amounts claimed by him and how each such amount had been calculated or arrived at. This order in essence reproduced a previous order made by Senior Member Vassie on 1st September 2005, and in which Senior Member Vassie imposed a deadline of 3rd October 2005.

8 On 21st August 2006, Mr Skinner filed and served a document purporting to be in compliance with Member Butcher's orders. Whilst no point is taken that the document is not in what might be described as the traditional form, and it is appreciated that some liberties must be extended to a litigant in person, nevertheless S&G is entitled to know appropriate details of the case which it is to meet, and that is particularly so when what is being claimed against it is a sum in excess of $424,000.00. If the document provided by Mr Skinner is viewed as a "stand alone" document, S&G could not, in any sensible way, ascertain how the claim against it is put. There is also no breakdown of the loss or damages sought. An example is that there is claimed as an item of loss an amount in excess of $50,000.00 owing to Ford. Any amount so owing was waived as part of the settlement at mediation. There is also considerable confusion as to how the very large amount claimed for loss of income has been calculated. There is very limited scope for claiming damages for loss and disappointment as alleged by Mr Skinner, and such a head of loss or damage would normally be confined to a situation where, for example, a holiday has fallen far short of the representations made concerning it by the relevant cruise company or tour organiser. Mr Skinner also seems to have confused amounts (for example, for costs) which S&G were claiming on his behalf against Stillwell with amounts which he can claim against S&G. There is further confusion concerning advice given to Mr Skinner when he initiated his claim. His original solicitors were Hall and Wilcox who were subsequently sacked by him, and his claim was well underway by the time that S&G was engaged. Mr Skinner, in his witness statement, has also referred to two representative cases involving motor vehicles in which S&G was involved, but, the present case not being a representative one, this reference is again misconceived. In short, the only way to attempt to make sense of the particulars provided is to go to the witness statement, and, even when this is done, the combined documents fall short of what is required.

9 Even where Mr Skinner is given the benefit of the doubt and the documents purported to be provided pursuant to the orders are looked at along with supporting documents, not enough material has been provided to enable S&G to make out the allegations against it. Another example is the allegation by Mr Skinner that there was some unconscionable conduct by S&G in relation to the provision of experts' reports prior to the key mediation. Apart from the fact that copy reports had been forwarded to him at his address in Queensland and he failed to get them, and that he was then represented at the mediation by experienced counsel who was aware of them, it is a misconception to think that a failure to provide in advance expert reports in some way constitutes unconscionable conduct. Such behaviour simply cannot be characterised as unconscionable. Similarly, it is a misconception to allege that a change of barristers, organised a considerable period before the mediation and when the original barrister indicated that he was unavailable, is misleading or deceptive conduct. Yet again, Mr Skinner is clearly confused in his references, in the witness statement, to cases where unhappy individuals have sued concerning allegedly inadequate amounts recovered at auctions by credit companies. That simply did not happen in the present case. Any auction was put on hold following developments in the court case. Furthermore, the advice given to Mr Skinner in relation to non-payment and repossession was in fact given by Hall and Wilcox, and not S&G. These, and similar matters alleged by Mr Skinner in his witness statement, cannot amount to misleading or deceptive conduct. Equally confusing is an apparent attempt to rely on s.32JA of the Fair Trading Act in relation to an alleged failure to advise concerning mitigation of loss. This is very difficult to understand.

10 In summary, the allegations cannot be understood, and there has been a failure to comply with orders on a number of occasions.

11 It should be noted that the Terms of Settlement following mediation, which terms were outlined to me by consent, were to the effect that the amount of approximately $50,000.00, being the payments owed by Mr Skinner, was waived; Mr Skinner was paid $3,000.00; and the vehicle was retained by Ford. The payments that had been made in respect of the vehicle totalled approximately $14,000.00. Furthermore, when Mr Skinner settled the matter, it was during or after a discussion between himself and the mediator and with no lawyers in the room. He had a private session with the mediator, then emerged from the room and with the matter settled. This is evident from Mr Skinner's own paperwork.

(b) The Application Insofar as it Relies upon s.75

12 Many of the submissions in relation to s.75 overlap with those that have already been advanced in relation to s.78. The claim is misconceived or lacking in substance. It is also an abuse of process. Most of these matters were raised by Mr Skinner in a hearing before the Legal Profession Tribunal. He was alleging negligence and breach of duty on the part of S&G. The finding of that Tribunal was that all the allegations made by Mr Skinner fell a long way short of establishing negligence on the part of S&G or of establishing a breach of their terms of engagement or of their fiduciary duty. Whilst it is not argued that some form of res judicata has been established, the fact remains that some matters which were argued unsuccessfully before the Legal Profession Tribunal are again being argued. Before the Legal Profession Tribunal, there was not a breakdown as to how the claims were made. Now a similar claim, without proper material, is being brought before another Tribunal. Mr Skinner has been repeatedly pressed to outline the issues which he wishes to raise in a clear and correct way, but he has failed to do this. Cases referred to by Mr Skinner (and presumably obtained from the internet) simply do not support, or have no bearing upon, the propositions advanced by him.

13 In every court or tribunal, the bar in relation to striking out or dismissal without a hearing on the merits is rightly set very high. However, the present case satisfies the test. Whilst Mr Skinner is a litigant in person, a balance must be struck in relation to the interests of the other party and the case which it has to meet. No link has been established or set out between the various headings in Mr Skinner's document, such as misleading conduct, and the loss or damage allegedly sustained. There are no clear statements such as, "because of your failure to provide the experts' reports, the following happened and the following loss was sustained". The whole exercise is futile because, ultimately, Mr Skinner settled his case, and settled it following discussion of the costs of the proposed litigation, and in private session with the mediator. He cannot now say that he should not have settled it because at the time he did not have certain material, and now pursue S&G because of this. What he should have done was simply instruct his solicitors and barrister either to adjourn the mediation, or to leave with the matter not settled. If necessary, he could have sacked his solicitors, as he did with Hall & Wilcox. In this case, it is an inescapable conclusion that he settled the matter on his own terms. It was his decision. The one allegation that is not made is that Mr Skinner was stood over or coerced to settle, against his better judgment, by either S&G or by counsel. Furthermore, on the occasion of the mediation, S&G even suggested to Mr Skinner that he have a talk with his mother, who was present, concerning the situation. In all the paperwork that has been provided in the case, nowhere is it suggested by Mr Skinner that either S&G or counsel pressured him into settlement.

(c) The Application Insofar as it Relies upon s.79

14 If the matter were to proceed, it would run for a minimum of seven sitting days. In addition, because the practitioner from S&G who had primary conduct of Mr Skinner's proceeding now resides in New York, expensive video link or travel arrangements would be required. It is difficult to give a completely accurate estimate of the duration of the matter because Mr Skinner has still not provided witness statements from his experts, one of whom is almost the principal witness in the whole case.

(d) Conclusion

15 Even if Mr Skinner were given another chance to prepare his claim, it is almost inevitable that the parties would be before this Tribunal again on a similar application. This proposition is put in relation to S&G's reliance upon s.78, but is not intended to diminish in any way reliance upon s.75. Whilst one can have sympathy for Mr Skinner as being a litigant now unhappy with the result which he obtained, in reality he is still attempting to establish, to his satisfaction, that he was in the right, and Stillwell and Ford were in the wrong. He wishes to re-argue the difference between the two experts and the estimates of the loss claims.

16 The submissions of Mr Skinner could be summarised as follows.

17 Prior to his making these submissions, as earlier discussed Mr Skinner was afforded the opportunity to take some time. The offer was made to him of both time and of the annotated Act. However, Mr Skinner declined such offers, confirmed that he was in a position to proceed and preferred so to do, and had with him a copy of Pizer.

18 Returning to Mr Skinner's submissions, the claim is one which has cost him a business and two rental properties. Therefore, he should be able to come before a judicial member to find out why the settlement which was achieved only dealt with matters up to a certain point in time. Hall & Wilcox lost the photos in relation to an engineering report. Those photos were essential. By the time the opportunity arose to take more photos, the vehicle had been altered. An action was taken against Hall & Wilcox, and was settled. Therefore, relying upon High Court authority, the amount previously received in settlement of a claim should be taken into account in a subsequent claim (I hope I am doing justice to the argument advanced by Mr Skinner, who, as stated, like Mr Cafari behaved in a very proper and courteous manner throughout. However, and even allowing for the fact that he is a litigant in person, there were certain aspects of his submissions which I struggled to understand). This is appreciated in relation to Ford. The whole vehicle issue, with the constant repossession notices, is bewildering. The vehicle was going for auction, and then was not going for auction. Mr Skinner would have been happy for Ford to sue him, and to contest this, but he was not so advised. Counsel advised S&G that, realistically, no claim could be brought against Ford in relation to any wrongdoing when the vehicle was not even listed with Ford as the vehicle which Mr Skinner was driving.

19 Immediately prior to the mediation, letters were sent to Mr Skinner both in Queensland and at an Echuca address. Amounts were listed as to what would be claimed at the mediation, and Mr Skinner was advised that he might have to take a "dip" in relation to what could be achieved by way of settlement at mediation. In the representative cases in relation to Kenworth and Mack Trucks, and unconscionable acts, the applicants actually received costs from S&G for incompetence. However, Mr Skinner was not given an option in regard to costs.

20 There was an explanation in relation to solicitor/client costs and party/party costs. What was discussed with the mediator was in private session and was confidential, although an affidavit could be provided. Mr Skinner asked to speak to him personally because what the mediator said reflected what was happening on that particular day. It was for that reason that Mr Skinner asked to speak to him personally.

21 Mr Skinner said that he was grateful to have the opportunity to speak to a judicial member, and, when reminded of the nature of the hearing, said that he appreciated that what was occurring was not a hearing on the merits. The prepared witness statement should be read in full.

22 At that stage, when Mr Skinner appeared to have concluded his submissions, I stated that, given the significance of striking out a matter without a hearing on the merits, I would be reserving my decision and giving what had been raised due consideration. I also pointed out that I was not greatly concerned by any argument concerning s.79 and security for costs. As Mr Cafari had in effect properly conceded, there was not a great deal of material before me which would be persuasive in that regard. I pointed out that, put simply, I would be considering whether Mr Skinner's application had no chance of success; whether the rulings of the Legal Profession Tribunal should be influential; and whether the documentation supplied by Mr Skinner was adequate and sufficient to satisfy the orders previously made. I also indicated that, as at the time that I was hearing the matter, my feeling was that the question of adequacy or inadequacy of the documentation had to be viewed in the context of, and perhaps subsidiary to, the question of whether the application itself had any chance of success. I advised Mr Skinner that, whilst the issues which I had outlined appeared to me to be the key issues and that I had given perhaps more than the usual indication as to the order or priority in which I ranked them, he should feel free to address me about those type of matters.

23 Mr Skinner then stated that he simply wished me to review the material that was before me. Lest he did not completely understand the thrust of what I had said, I then directed his attention to s.75 of the VCAT Act. I pointed out that I was required to consider whether his action should be struck out or dismissed because it was frivolous, vexatious, misconceived, lacking in substance, or otherwise an abuse of process - that is, whether it should not have been brought or whether, in essence, it could not "get off the ground". I directed him to the relevant parts of Pizer, which he had with him. In particular, I directed him to the observations of Deputy President McKenzie in Norman v Australian Red Cross Society (1998) 14 VAR 243, and to her comments that, for a dismissal or strike out to succeed, the proceeding must be obviously hopeless, obviously unsustainable in fact or in law, can on no reasonable view justify relief, or be bound to fail. I emphasised that this was the type of tough test which I must apply. I also pointed out that I was also required to consider whether his application was vexatious or an abuse of process, bearing in mind what had been determined by the Legal Profession Tribunal. I again invited any further submissions.

24 Mr Skinner responded that this was fine. He wished me to review all the documents on the file. In particular, he wished me to look at his witness statement and the cases that he had referred to therein. He then added that the amounts which he was claiming were not amounts which he had "plucked out of the air", but came from the correspondence of S&G, and had been set out in the application.

25 Mr Skinner then continued with the courteous approach which he had adopted throughout by thanking me for the hearing.

26 It is with considerable sympathy for Mr Skinner, which may be of little consolation to him, that I express the opinion that his application should be dismissed. As I have stated many times, he presented in a most pleasant and courteous way, and the manner in which this hearing was conducted was a credit to all concerned.

27 However, the bottom line is that Mr Skinner's application against S&G is, in my opinion, totally misconceived and lacking in substance. It is also an abuse of process. Given that ruling, it is probably unnecessary for me to determine the application pursuant to s.78, although I also find for S&G in that regard. I shall deal firstly with s.75.

28 As stated by Mr Cafari, the bottom line is that Mr Skinner's complaint against S&G is based upon the outcome of a mediation - a settlement. There is no suggestion that S&G, or counsel briefed by it, applied improper pressure to him in order to achieve that settlement. No such allegation is made by Mr Skinner. I accept that his mother was present. I accept that he was given the opportunity to consult with her. There is no argument with the proposition that the settlement was reached following a private session involving only Mr Skinner and the mediator, although his mother might also have been present for at least part of the time. Mr Skinner himself has referred to this private session with the mediator. It is not suggested that any of Mr Skinner's lawyers were present during this session.

29 In Norman, many of the principles which apply to applications pursuant to s.75 are set out. For an application such as the present one by S&G to succeed, the proceeding which is under attack must be obviously hopeless, obviously unsustainable in fact or in law, can on no reasonable view justify relief, or be bound to fail. This would include a situation where a complaint can be said to disclose no reasonable cause of action. In my opinion Mr Skinner's application fails to disclose any reasonable cause of action and is bound to fail. On no reasonable view can the proceeding justify belief. His application, which has been on foot for some time, simply fails to identify what S&G has done wrong which failing or error has been productive of a resultant defined loss. Counsel was briefed, appropriate material obtained, no improper pressure was applied to Mr Skinner, and he settled the matter on his own terms and of his own volition. If S&G did do something that was erroneous, negligent or non-professional, and I struggle to see that there was any such behaviour, it would then seem to have available to it virtually a complete defence based upon the circumstances of the settlement. Mr Skinner does not suggest that he sought to adjourn the mediation or that he asked for more time. He did not walk away with the matter unsettled. He did not sack his solicitors or his counsel. He settled the matter privately and on terms known to him. There is no suggestion that the terms were of such a nature that he could not understand them. As stated, I accept that he settled his case of his own volition and with there being no suggestion of improper pressure being placed upon him.

30 Whilst the mediation and the settlement lie at the heart of Mr Skinner's complaints, I can also find no negligence, breach of duty of care, misleading or deceptive conduct or the like in the manner in which S&G handled Mr Skinner's claim generally. There is nothing alleged which, on the basis of the available material, could represent a breach of the relevant provisions of the FTA. I repeat that there is nothing alleged which leads to a resultant identifiable loss. Even if there was some defect in the manner in which S&G handled this claim between the time that they took over the conduct of the file and the mediation in October, 2003 - and I cannot find any such defect - the circumstances of the settlement would still loom large.

31 In short, Mr Skinner's application seems to me to be completely lacking in substance.

32 It was also argued that, given the earlier ruling of Senior Member Howell in the Legal Profession Tribunal, Mr Skinner's application represents an abuse of process. Whilst some broader allegations were made in the present case, and whilst before the Legal Profession Tribunal the provisions of the FTA were not applicable, nevertheless Senior Member Howell was specifically dealing with allegations of breach of duty by S&G, which allegations are central to the present application. Senior Member Howell concluded that "All of the allegations made by Mr Skinner fall a long way short of establishing negligence on the part of Slater & Gordon, or a breach of its terms of engagement, or of any fiduciary obligation owed to Mr Skinner". Accordingly, he dismissed the matter. A reading of his Reasons for Decision reveals that many of the allegations then made by Mr Skinner have been repeated in the present application.

33 There should be an end to litigation. A proceeding is an abuse of process if it could be characterised as seeking to re-agitate issues that had, as a matter of substance, already been determined in prior decisions - see, for example, Knight v CORE [2003] VCAT 501; (2003) 20 VAR 89. That approach seems to me to be applicable in the present case. Mr Skinner is seeking to re-agitate issues that have already been determined as a matter of substance. The applications do not overlap entirely, but they seem to me to overlap substantially and to the extent that the present application represents an abuse of process.

34 The documentation prepared by Mr Skinner contains complaints which simply do not relate to the sections of the FTA upon which reliance is placed. There is a misconception or misunderstanding concerning this. I accept the submissions of Mr Cafari in this regard. A good example of this is the purported reliance upon s.32JA of the FTA. Under this heading Mr Skinner's document sets out the following:-

"Slater and Gordons failure to advise me of possible outcome in antecedent negotiations regarding mitigation of claim and alternative in having matter heard at VCat (sic) confirmed to me that Slater and Gordon would act in my best interest."

35 Not only is this very difficult to understand, it is even more difficult to place it within the operation of s.32JA. This is but one example of confusion in relation to allegations made and loss claimed. The bottom line is that not only is Mr Skinner's application bound to fail because of the fundamental problem of the mediated settlement and the absence of negligence or breaches of the FTA, the individual allegations are flawed when viewed in the context of the statutory provisions relied upon. Whether the fundamental situation relied upon in this application is viewed in its overall sense or whether the individual allegations are examined, Mr Skinner's application is misconceived, lacking in substance, an abuse of process and bound to fail.

36 As stated, it is probably not necessary for me to make any ruling in relation to s.78 of the VCAT Act, but I am of the view that, were it necessary for me to so determine, I would also dismiss the application pursuant to this section. Orders dating back to 2005 have been made requiring Mr Skinner to file and serve a document setting out in intelligible form details of his allegations, the amount claimed by him, and how it is calculated. Unfortunately this has still not occurred. I agree with Mr Cafari that, even if the document provided by Mr Skinner was read in conjunction with other documents, S&G would still have little or no idea as to how the claim is put against it and the amounts or items of loss calculated. It seems to me that there has been a failure by Mr Skinner to comply with orders of the Tribunal without reasonable excuse, and that this has unnecessarily disadvantaged S&G. However, it is pursuant to s.75 of the VCAT Act that the primary order of dismissal is made.

37 In the circumstances, no order pursuant to s.79 is required. As I indicated from the bench, I would not have been minded to make such an order, but consideration of the issue of security for costs is no longer necessary.

38 In summary, S&G succeeds and Mr Skinner's application is dismissed. I shall reserve the question of any ancillary orders that may be required, and also reserve liberty to apply.