respondent. Application dismissed pursuant to section 48 of the South Australian Civil and Administrative Tribunal Act 2013 on ground that delay in commencing proceedings constituted an abuse of process...
Key principles
An application to SACAT will be dismissed under s 48 of the SACAT Act as an abuse of process where undue delay in commencing proceedings results in real risk of oppression to the...
An application is not frivolous or vexatious simply because it is delayed; if there is a real cause of action on the face of the material, it is not to be characterised as...
The Tribunal may consider the consequences of delay on the fairness of the proceedings to both parties, and where delay causes unfairness amounting to oppression or tends to...
Issues before the court
Whether the tenants' application was frivolous, vexatious, misconceived, lacking in substance or an improper use of process under s 48 of the SACAT...
Whether the tenants' delay in commencing the proceedings constituted an abuse of process justifying dismissal under s 48.
Whether the Tribunal should assess the merits of the claim when deciding to dismiss under s 48.
Plain English Summary
Tenants sought compensation for damage caused by a garage collapse in 2013. They initially litigated in the old Residential Tenancies Tribunal, which dismissed their claim for want of jurisdiction in December 2013. No effective proceedings followed until an application to SACAT in October 2019. The landlords applied to have the SACAT application dismissed under s 48 as an abuse of process because of the long delay and resulting prejudice. The Tribunal held the claim was not frivolous on its face, but the six-year delay (with unsatisfactory explanations) caused real risk of oppression to the landlords and would bring the Tribunal's processes into disrepute if allowed to proceed. The Tribunal dismissed the application under s 48.
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Deep Dive
1,872 words · generated 24/07/2026
What happened
Facts and procedural history, as found by Member Kennedy: on 7 August 2013 a structural collapse of a garage occurred at premises occupied by the applicants, Robert and Lynette Taylor. The applicants originally commenced proceedings in the former Residential Tenancies Tribunal; those proceedings were dismissed in December 2013 for want of jurisdiction because of jurisdictional limits on the amount claimed (Reasons, chronology at Orders of 18 December 2019, and Reasons [Abuse of Process] [4]). No further effective proceedings were pursued until a SACAT application was lodged on 28 October 2019. The respondent landlords, Antonietta and Gildo Marveggio, say they heard nothing about further claims until a letter of demand in August 2019, nearly six years after the earlier Tribunal dismissal (Reasons [Abuse of Process] [7]).
Cited legislation
3 cited instruments linked from this judgment.
The landlords applied for the SACAT application to be dismissed under s 48 of the South Australian Civil and Administrative Tribunal Act 2013. The applicants gave explanations for the delay: Mrs Taylor became unwell in 2013; even after some improvement she remained hesitant to pursue the matter and the applicant waited for her to change her mind; and the applicant believed, following the dismissal in 2013, that there was six years to lodge fresh proceedings in the Magistrates Court. At a hearing on 8 September 2020 the Tribunal (Member Kennedy) considered submissions and evidence and made a final order dismissing the proceedings under s 48 on 29 September 2020 (Orders [1]; Reasons [Abuse of Process] [4]–[11]).
Why the court decided this way
The Tribunal undertook a two-step analysis. First, it addressed whether the application fell within the narrower categories identified in s 48 as frivolous, vexatious or the like. Relying on established authority about the meaning of 'frivolous' and 'vexatious', Member Kennedy observed that those terms essentially contemplate absence of a cause of action (citing Pitt v OneSteel and JF Keir), and concluded that, on its face, the tenants' application did disclose a typical compensatory cause of action under s 68(5) of the Residential Tenancies Act 1995. In short, the claim was not frivolous or vexatious and there was no evidence of an improper purpose (Reasons [Frivolous, vexatious, misconceived etc.] [1]–[4]).
Second, the Tribunal considered whether the proceedings were otherwise an abuse of process under s 48. The Tribunal relied on High Court authority describing abuse of process as a flexible doctrine, available where use of court procedures would be unjustifiably oppressive to a party or bring the administration of justice into disrepute (Tomlinson v Ramsey Food Processing Pty Ltd at [25], discussed in Reasons [Abuse of Process] [1]). The Tribunal accepted that undue delay can amount to an abuse of process even if a limitation period has not yet expired (citing Batistatos) (Reasons [Abuse of Process] [2]).
Applying those principles to the facts, the Tribunal recorded the long gap between the event (2013) and the SACAT application (2019) and found the applicants’ explanations were not cogent: the temporary ill-health of Mrs Taylor did not explain the five-year hiatus and the applicant’s account that he was waiting for his wife to change her mind made little sense given he had later resolved to proceed regardless (Reasons [Abuse of Process] [5]–[6]). The landlords said they had been unaware of further steps and would, if aware, have informed insurers and sought expert opinions sooner (Reasons [Abuse of Process] [7]). The Tribunal accepted that the delay made dealing with the matter vastly more difficult, and that the landlords faced a degree of unfairness and potential oppression in meeting the claim; the Tribunal also observed that the applicant was disadvantaged in proving historic facts (for example, condition of the premises as early as 2000) (Reasons [Abuse of Process] [8]). Because there was no cogent explanation for the delay and a real risk of oppression to the respondents, the Tribunal concluded the proceedings were an abuse of process and ordered dismissal under s 48 (Reasons [Abuse of Process] [9]–[11]; Orders [1]).
Crucially, the Tribunal did not decide the substantive merits of the claim. The dismissal was procedural: prevention of unfairness and maintenance of the Tribunal’s processes rather than determination of entitlement to compensation (Reasons [Abuse of Process] [8]).
Before and after state of the law
Before this decision: s 48 of the SACAT Act provided the Tribunal with a statutory power to dismiss proceedings that are frivolous, vexatious, misconceived, lack substance, involve trivial matters, are pursued for improper purposes, or are otherwise an abuse of process. The High Court and Federal authorities supplied principles on what constitutes frivolous/vexatious actions (absence of a cause of action) and what amounts to abuse of process (a flexible doctrine to prevent unjustifiable oppression and maintain integrity of the judicial process).
What this decision confirms for SACAT practice: Member Kennedy applied established High Court tests (Tomlinson, Batistatos) and Federal authority on frivolous/vexatious definitions (Pitt, JF Keir) in the Tribunal context. The decision clarifies that:
A genuine cause of action on the face of the applicant's materials avoids characterization as frivolous or vexatious (Reasons [Frivolous, vexatious, misconceived etc.] [2]).
Nonetheless, even where a cause of action exists, delay can independently found an abuse of process and justify dismissal under s 48 where the delay is unexplained and causes real risk of oppression or tends to bring administration of justice into disrepute (Reasons [Abuse of Process] [2], [9]–[11]).
The Tribunal should not conflate an inquiry under s 48 with a merits determination; the focus is on procedural unfairness and integrity (Reasons [Abuse of Process] [8]).
Thus the after-state emphasises that tribunals exercising s 48 powers will balance (a) existence of a cause of action, (b) explanations for delay, and (c) the prejudice or oppression to the respondent, including systemic interests in preserving tribunal processes.
Key passages with plain-English translation
"In my view, it cannot be said that the tenants' application is frivolous or vexatious, as there is clearly a 'cause of action'." (Frivolous..., [2])
Plain English: The claim, on its face, is legitimate. It alleges facts that could lead to compensation under the Residential Tenancies Act, so it cannot be dismissed as having no real legal basis.
"Although the categories of abuse of process are not closed, undue delay in commencing proceedings can amount to an abuse of process in some circumstances, even if a limitation of action period has not expired." (Abuse of Process, [2])
Plain English: Even if a statutory time limit has not run, waiting too long to sue can still be an improper use of the tribunal system if it causes unfairness or harms the administration of justice.
"I accept that the delay in bringing the proceedings makes dealing with the matter vastly more difficult than it would have been had the matter been commenced earlier." (Abuse of Process, [8])
Plain English: Because so much time passed, both parties face real evidentiary and practical problems; the case cannot be handled as fairly as it could have early on.
"Ultimately ... I view the application as an abuse of process." (Abuse of Process, [9])
Plain English: Given the unexplained delay and its prejudicial effect, the Tribunal concluded the claim is an improper use of its procedures and must be dismissed.
"I will therefore order that the application be dismissed pursuant to section 48 of the SACAT Act." (Orders, [1]; Abuse of Process, [11])
Plain English: The Tribunal formally ends the case by dismissing the tenants' application under the statutory power to strike out abuse-of-process or frivolous claims.
What fact patterns trigger this precedent
The decision is relevant where the following factual pattern appears:
A significant gap of years between the events giving rise to a claim and the lodging of proceedings in SACAT, particularly where initial proceedings were dismissed or where plaintiffs delayed despite opportunities to litigate;
Explanations for delay are weak, vague or incoherent (e.g. waiting for another person to change their mind, misapprehension about limitation periods without prompt corrective steps);
Respondents can show they lacked notice and would have taken steps (insurer notification, expert evidence, preservation of records, obtaining contemporaneous evidence) that would have materially affected their ability to defend the case;
The alleged loss or contested fact is historical in nature and requires proof of conditions many years earlier (for example, state of repair at tenancy commencement decades before).
Where these elements combine, a tribunal will consider whether the delay produces real risk of oppression or tends to bring the administration of justice into disrepute so as to justify dismissal under s 48.
How later courts have treated it
This decision is a SACAT Member's reasons applying High Court and Federal case law. It expressly adopts the High Court's description of abuse of process (Tomlinson) and relies on Federal authorities for defining frivolous and vexatious. As a Tribunal decision, it is persuasive rather than binding on courts, but it provides a clear application of s 48 principles in the tenancy/tribunal context. Subsequent tribunals or courts considering s 48-like powers will take this decision as an example where unexplained, protracted delay, plus demonstrable prejudice to respondents, justified dismissal even without a formal limitation-bar being shown.
Practitioners should therefore expect later tribunals to refer to the factors highlighted here, cogency of explanation, demonstrable prejudice to respondents (insurer notification, expert evidence lost), and risk of bringing tribunal processes into disrepute, when assessing whether to dismiss under s 48.
Still-open questions
Several issues remain for further clarification or development through later decisions:
Standard of proof for prejudice/oppression: The decision accepts prejudice from respondent affidavit evidence about lost opportunities but does not set a measured standard or threshold of particularised prejudice required to dismiss. Later decisions may clarify how granular or evidentiary the respondent must be in proving prejudice.
Interaction with limitation statutes: The Tribunal noted that abuse of process can be found even where limitation periods have not expired. What specific role should limitation statutes play in a s 48 evaluation? Will an imminent expiry, or knowledge that limitation would bar the claim shortly, alter the fairness calculus?
Applicant's subjective reasons: The Tribunal found the applicant's explanations not cogent. Future cases may explore what types of personal circumstances (e.g. prolonged incapacity, mental incapacity, caregiver burdens, lack of legal advice) would be regarded as cogent reasons sufficient to overcome prejudice caused by delay.
Curative steps short of dismissal: The Tribunal dismissed the application. It remains an open question whether intermediate remedies, stayed proceedings, directions for expedited discovery, forensic orders, or cost consequences, might be a proportionate response in cases of significant but explainable delay, rather than outright dismissal.
Applicability across tribunal jurisdictions: While Member Kennedy applied High Court authorities and Federal practice, later Tasmanian, Victorian or federal tribunal decisions may develop divergent approaches to the interplay between procedural fairness, delay and the public interest in access to justice.
Practitioners should therefore treat Taylor v Marveggio (No 2) as a reminder that delay without cogent explanation, combined with demonstrable prejudice to a respondent, can be fatal in tribunal proceedings. When confronted with aged disputes, litigants should promptly notify opponents, preserve and obtain evidence and provide credible explanation for pauses in litigation to avoid dismissal for abuse of process.
Judgment (21 paragraphs)
[1]
Taylor & Anor v Marveggio & Anor (No 2) [2020] SACAT 99 (29 September 2020)
The applicant sought compensation for property damage which occurred due to the collapse of a garage at the premises in 2013. The applicant's reasons for the delay in commencing proceedings were that:
[4]
His wife became unwell in 2013;
Although his wife's health improved at a later time, she remained hesitant to pursue the matter and he was waiting for her to change her mind; and
Because the proceedings originally brought by the applicant were dismissed by the former Residential Tenancy Tribunal for want of jurisdiction, the tenant believed he had six years to lodge fresh proceedings in the Magistrates Court.
[5]
The landlords submitted that between December 2013 and August 2019, they heard nothing about the commencement of fresh proceedings. Had they known a claim would be pursued, they would have taken preparatory action for it such as informing insurers and seeking expert opinions.
[6]
the tenant's application had a clear "cause of action", and so it was not frivolous or vexatious, or being pursued for an improper purpose;
the landlords are greatly disadvantaged in meeting the case due to the applicant's delay in commencing proceedings; and
the Tribunal is not satisfied that there is any cogent or satisfactory explanation for the delay and therefore the application constitutes an abuse of process.
[7]
Administrative tribunals - Procedure - Statutory powers - Frivolous, vexatious, or improper proceedings - Abuse of process - Undue delay in commencing proceedings - Application dismissed
I refer to previous orders in this matter. As identified in my orders of 5 August 2020, the respondent landlords invited me in written submissions to dismiss or strike out the tenants' application in accordance with s 48 of the SACAT Act 2013 (the SACAT Act). I have dealt with that proposal as an application by the landlords for me to take that step, and convened a hearing of the Tribunal for that purpose.
Section 48 of the SACAT Act provides that the Tribunal may dismiss or strike out proceedings if it believes that a proceeding is frivolous, vexatious, misconceived or lacking in substance; involves a trivial matter or amount; is being used for an improper purpose; or is otherwise an abuse of process.
The availability of s 48 of the SACAT Act was referred to in submissions provided to the Tribunal on behalf of the Attorney-General (intervening) in addressing the question of whether the Limitation of Actions Act (SA) 1936 applied to tenancy matters in SACAT. It is fair to say therefore that the circumstances motivating the landlords to ask me to dismiss the application on the basis of s 48 of the SACAT Act turns on the extraordinary delay in these proceedings being lodged with the Tribunal from the events giving rise to the tenants' claim.
[18]
Frivolous, vexations, misconceived etc. proceedings
[19]
As observed in Pitt v OneSteel Reinforcing Pty Limited[2008] FCA 923, when used in a legal context "the word 'frivolous', especially when coupled with 'vexatious', is a technical legal term, in substance meaning the absence of a cause of action." In other words, "An action can be stayed as vexatious 'if it can really lead to no possible good': JF Keir Pty Limited v Sparks[2008] FCA 61." I have had regard to the consideration of these terms as they apply to equivalent provisions in the Administrative Appeals Tribunal Act 1975, discussed by DP Forgie in Singh and Administrative Appeals Tribunal[2014] AATA 701.
In one sense, and disregarding the delay, the tenants' application is objectively a typical application for compensation arising out of being party to a residential tenancy agreement. Sub-section 68(5) of the Residential Tenancies Act 1995 empowers the Tribunal to order a landlord to pay to the tenant compensation to which the tenant is entitled under s 68.Section 68 imposes specific terms into a tenancy agreement addressing a landlord's obligation to ensure that premises are in a reasonable state of repair at the beginning of the tenancy and to keep them in that condition having regard to the age, character and prospective life of the premises. The tenant seeks compensation for damage to personal property and inconvenience as a result of a structural collapse at the premises. In my view, it cannot be said that the tenants' application is frivolous or vexatious, as there is clearly a "cause of action". But for the circumstances I will consider later in these reasons, the tenants' application could on the face of it result in an award of compensation.
[20]
In Tomlinson v Ramsey Food Processing Pty Ltd[2015] HCA 28; (2015) 256 CLR 507 at [25], the notion of an abuse of process has been described as being "insusceptible of a formulation which comprises closed categories." The High Court however recognised in that case that 'abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can, for that reason, be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned...'. While the Courts' observations are in the context of proceedings in court, the fact that the same terminology is introduced for the Tribunal in s 48 of the SACAT Act indicates that the principles are intended to apply equally in SACAT.
Although the categories of abuse of process are not closed, undue delay in commencing proceedings can amount to an abuse of process in some circumstances, even if a limitation of action period has not expired: see generally Batistatos v Roads and Traffic Authority of New South Wales[2006] HCA 27.
I proceed therefore on the basis that, depending on the particular circumstances of this matter, the tenants' delay in commencing the proceedings might amount to an abuse of process that may justify dismissal of the proceedings.
During the hearing of the application, I enquired specifically of Mr Taylor as to why he delayed lodging his application in SACAT for so long. In this regard, I refer to my orders of 18 December 2019 in which I set out the chronology of events which disclose that the structural collapse at the premises occurred on 7 August 2013, but the application in this Tribunal was lodged on 28 October 2019 (albeit other relevant events happened in between). I refer generally to the chronology in those orders.
[21]
The Tribunal orders that the proceedings specified above be dismissed.
Parties
Applicant/Plaintiff:
Taylor & Anor
Respondent/Defendant:
Marveggio & Anor
Legislation Cited (3)
Australian Civil and Administrative Tribunal Act 2013
Tenancies Act 1995
Appeals Tribunal Act 1975
Cases Cited (1)
(2015) 256 CLR 507
AI Analysis
Outcomerespondent
Disposition:
Application dismissed pursuant to section 48 of the South Australian Civil and Administrative Tribunal Act 2013 on ground that delay in commencing proceedings constituted an abuse of process causing risk of oppression and there was no cogent explanation for the delay (Orders [1]; Reasons [Abuse of Process] [9]–[11]).
Similarly, on the face of it, it cannot be said that the tenant's application lacks substance, and nor does it involve a trivial matter or amount. If the tenant were able to prove the landlord is in breach of the duty to repair and prove the claimed loss of personal property and its value, the compensation may be substantial.
I am not satisfied to conclude that the tenant is using the proceedings for an improper purpose. There is no evidence to suggest that any collateral process is at play that might justify such a conclusion. To the extent that the overall circumstances of this unusual matter have led to the application to have the matter struck out, I consider those matters best considered and dealt with in the context of an alleged abuse of process.
Mr Taylor explained that his wife was unwell at about the time he had brought proceedings in the former Residential Tenancy Tribunal (dismissed for want of jurisdiction due to jurisdictional limits on the amount of claim). Mr Taylor however informed me that his wife's health improved somewhat, and I am not satisfied that Ms Taylor's state of health provided any cogent explanation for the subsequent five year hiatus.
Mr Taylor further explained that his wife was not fully committed to pursuing the matter, and he was waiting for her to change her mind. Ultimately, he realised that time was running out (at that time he thought he had six years to lodge proceedings in the Magistrates Court), and so he lodged anyway. This aspect of Mr Taylor's explanation makes little sense to me given he resolved to proceed regardless of his wife's attitude, and in my view provides no cogent explanation for the failure to pursue the matter in some forum between 11 December 2013 and 4 August 2019.
I enquired of the landlords whether any further steps in the dispute came to their attention in the meantime. I understood from Mr Marveggio that after the proceedings were dismissed in the Residential Tenancies Tribunal for want of jurisdiction in December 2013 they heard nothing further of the matter until Mr Taylor issued a letter of demand in connection with the Magistrates Court proceedings in August 2019, nearly six years later. Mr Marveggio complains that during that period, if aware that proceedings were to commence, he might have taken further action concerning informing his insurers of a claim, seeking further particulars and evidence about the property claimed to be damaged, and perhaps sought the opinion of experts.
I accept that the delay in bringing the proceedings makes dealing with the matter vastly more difficult than it would have been had the matter been commenced earlier. This is particularly so when it appears that Mr Taylor may need to assert that the premises was in need of repair from the commencement of the tenancy in 2000: that is 20 years ago. While I accept that the respondent landlord will face difficulties in defending themselves in the proceedings because of the extraordinary delay, I cannot avoid the conclusion that Mr Taylor himself is greatly disadvantaged in proving his case because of the delay. The burden of the delay tends to fall on Mr Taylor in this way. To avoid doubt however, I am not approaching the application to dismiss the matter under s 48 of the SACAT Act by an assessment of the merits of the case. I accept however that it is also the case that the respondent landlords are greatly disadvantaged in meeting the case due to the delay.
Ultimately, in circumstances where I am not satisfied there is any cogent or satisfactory explanation for the delay in commencing these proceedings in the Tribunal, even taking into account the earlier dismissal of proceedings for want of jurisdiction in 2013, and where I accept that the landlords face a degree of difficulty and unfairness in meeting the tenants' claim amounting to oppression, I view the application as an abuse of process.
Furthermore, I consider that if the applicant is permitted to proceed with an application for compensation concerning events that took place over six years before the proceedings were initiated, without good reason for the delay, in circumstances where there is a real risk of oppression to the respondent caused by the delay, this may tend to bring the Tribunal's processes and the administration of justice generally into disrepute in the way described by the High Court in Tomlinson.
I will therefore order that the application be dismissed pursuant to section 48 of the SACAT Act.