Conclusion
30There can be no doubt that in bringing his present claim Mr Trowbridge is seeking to re-litigate - as he himself admitted - matters that have already been determined by the Tribunal at first instance and on appeal. In Blair v Curran (1939) 62 CLR 464 at 531-532, Dixon J discussed the principles of issue estoppel and res judicata -
"A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus
finally closed or precluded. In matters of fact the issue-estoppel is
confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J in R v
Inhabitants of the township of Hartington Middle Quarter (1855) 4 E & B
780 at 794 [119 ER 288 at 293], the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous."
31In my view the doctrine of res judicata prevents Mr Trowbridge again litigating these matters with Mrs Morris or her privies: Mr Laybutt (her agent) and Mr Con Morris (who Mr Trowbridge alleges was at the relevant times Mrs Morris's attorney and agent).
32Further, while Mr Trowbridge asserted that his present application raised new issues not previously determined, I am satisfied this is not the case. Each matter he directed me to as being "new" was considered in the earlier litigation.
33I would add that, were I wrong in this, I consider that Mr Trowbridge would, nonetheless, be precluded from raising the new matters because they are matter that he could, and should reasonably, have raised in the earlier proceedings - an Anshun Estoppel: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
34Those matters which have already been heard and determined as between himself and Mrs Morris are res judicata and cannot be litigated again. Further, insofar, as Mr Trowbridge now seeks to agitate as against Mr Laybutt and Mr Con Morris, matters which have already been decided in his litigation against Mrs Morris, his attempt to do so is an abuse of process. If Mr Trowbridge was dissatisfied with the decision of the Appeal Panel then his remedy was to appeal that decision, not to attempt to re-litigate matters already determined. His attempt to do so is without merit and misconceived.
35While Mr Trowbridge did argue that in his present claim he was seeking to raise the issue of the validity of the notice, which he said had not been previously determined, the decision of the Tribunal at first instance and on appeal point to a contrary conclusion. He agreed that he had sought to agitate the issue of the validity of the notice before the Appeal Panel. I am satisfied that the matters he seeks to raise have already been heard and determined.
36Additionally, there is little doubt, in any case, that Mr Trowbridge's unconscionable conduct claim is unsustainable. Section 71A of the RL Act provides that -
A lessor or lessee, or former lessor or lessee, under a retail shop lease or former retail shop lease may lodge an unconscionable conduct claim with the Tribunal for determination of the claim.
37Section 62B relevantly provides -
(1) A lessor must not, in connection with a retail shop lease, engage in conduct that is, in all the circumstances, unconscionable.
(2) ...
(3) Without in any way limiting the matters to which the Tribunal may have regard for the purpose of determining whether a lessor has contravened subsection (1) in connection with a retail shop lease, the Tribunal may have regard to:
(a) the relative strengths of the bargaining positions of the lessor and the lessee, and
(b) whether, as a result of conduct engaged in by the lessor, the lessee was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the lessor, and
(c) whether the lessee was able to understand any documents relating to the lease, and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the lessee or a person acting on behalf of the lessee by the lessor or a person acting on behalf of the lessor in relation to the lease, and
(e) the amount for which, and the circumstances under which, the lessee could have acquired an identical or equivalent lease from a person other than the lessor, and
(f) the extent to which the lessor's conduct towards the lessee was consistent with the lessor's conduct in similar transactions between the lessor and other like lessees, and
(g) the requirements of any applicable industry code, and
(h) the requirements of any other industry code, if the lessee acted on the reasonable belief that the lessor would comply with that code, and
(i) the extent to which the lessor unreasonably failed to disclose to the lessee:
(i) any intended conduct of the lessor that might affect the interests of the lessee, and
(ii) any risks to the lessee arising from the lessor's intended conduct (being risks that the lessor should have foreseen would not be apparent to the lessee), and
(j) the extent to which the lessor was willing to negotiate the terms and conditions of any lease with the lessee, and
(k) the extent to which the lessor and the lessee acted in good faith.
(4) ...
(5) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with a retail shop lease by reason only that the first-mentioned person institutes legal proceedings in relation to that lease or refers to arbitration a dispute or claim in relation to that lease.
(6) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with a retail shop lease by reason only that the first-mentioned person fails to renew the lease or issue a new lease.
(7) For the purpose of determining whether a lessor has contravened subsection (1) or whether a lessee has contravened subsection (2):
(a) the Tribunal must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention, and
(b) the Tribunal may have regard to circumstances existing before the commencement of this section but not to conduct engaged in before that commencement.
(8) A lessor or lessee, or former lessor or lessee, who suffers loss or damage by reason of unconscionable conduct of another person that is in contravention of this section may recover the amount of the loss or damage by lodging a claim against the other person under section 71A.
(9) If the matter of such loss or damage arises in connection with a matter the subject of proceedings in the Tribunal, the Tribunal may proceed to decide it, and in so doing may award such sum as it thinks fit.
(10) In this section:
lessee or former lessee includes a person who is a guarantor or covenantor under a lease or former lease.
For conduct to be found to be unconscionable it must involve a high level of moral obloquy to ground an unconscionable conduct claim: Attorney-General of NSW v Worldbest Holdings Ltd (2005) NSWLR 557.
38The first ground of unconscionable conduct alleged by Mr Trowbridge, " Violations of the ethical guidelines of the Real Estate Institute of NSW," is directed at Mr Laybutt. Assuming, for the sake of argument, that an unconscionable conduct claim could be maintained against Mr Laybutt as agent for the lessor (an issue that is by no means clear), the conduct alleged does not have the high level of moral obliquity necessary to constitute unconscionable conduct. That conduct consists of refusing to meet or settle a demand for rent relief of $271, and issuing a notice to quit for arrears of rent (which were subsequently found to be owing).
39The second ground of unconscionable conduct alleged by Mr Trowbridge is simply a regurgitation of the claims Mr Trowbridge made concerning losses caused by the flooding of the premises, and with respect to the his purported exercise of an option, which the Tribunal found had not been validly exercised (see paragraph 3 of Trowbridge v Morris [2010] NSWADT 18). The particulars Mr Trowbridge supplied are argumentative at best, and the conduct alleged does not have the high level of moral obliquity necessary to constitute unconscionable conduct.
40The third ground of unconscionable conduct relied on by Mr Trowbridge relates to conduct in earlier Tribunal hearings. It is in essence an attempt to caval with the findings of the Tribunal, combined with allegations of improper conduct by the respondents in the course of that litigation. The improper conduct alleged is with respect to litigation, not in connection with a retail shop lease. While the words "in connection with" in s 62B are wide (see Taylor Farms (Aust) Pty Ltd v A Calkos Pty Ltd & Ord [1999] NSWSC 186 at [36]) , in the context of the RL Act they cannot be stretched to include conduct in litigation relating to a former retail shop lease. As I have already indicated, if Mr Trowbridge was dissatisfied with the result of his appeal, he had a remedy. His attempt to re-litigate those matters, and to question the earlier findings of the Tribunal, in the present unconscionable conduct claim is an abuse of process.
41Additionally, I considered that there were a number of other factors that point to Mr Trowbridge new application being misconceived. These included the fact that Mr Trowbridge had named a deceased person as a respondent - as a opposed to the legal personal representative of her estate - and two person who had acted as her disclosed agents, without in any way disclosing how or why liability should attach to them personally. While I appreciate that Mr Trowbridge is not legally qualified, these are fundamental matters in civil litigation. There were also significant issues concerning whether or not part or all of his unconscionable conduct claim is outside the time limits for making a claim found un s 71B(2) of the RL Act, but, given that the issues had been previously decided, I did not consider it necessary to determine them.
42Ultimately, I concluded that Mr Trowbridge present application was without merit. It lacked substance, was misconceived, and was a frivolous attempt to re-litigate issues already determined.
43S 73(5)(g)(ii) of the ADT Act provides -
(5) The Tribunal:
(a) ...
(g) may dismiss at any stage any proceedings before it in any of the following circumstances:
(i) .
(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
44Relying on that power I dismissed Mr Trowbridge's application.