Tutos v State of Victoria [2019] VSC 673

2 The plaintiff's contract of employment with the first defendant stipulated a five month probationary period from 26 January 2016 until 25 June 2016. This period was extended by six months on 13 July 2016.

3 On 26 July 2019, the plaintiff filed a grievance with the second defendant, the Merit Protection Boards, in relation to the extension of his probation (the probation extension grievance). On 23 August 2016, the second defendant notified the plaintiff that it did not have jurisdiction to hear the probation extension grievance (the probation extension decision).

4 The plaintiff's probation was annulled on 26 October 2016 and as a consequence his employment with the first defendant terminated.

5 On 26 October 2016, the plaintiff filed a grievance application with the second defendant in relation to the decision to annul his probation (the annulment grievance). On 27 February 2017, the second defendant confirmed the decision to annul the plaintiff's probation and terminate his employment (the annulment decision).

6 On 10 April 2017, the plaintiff commenced proceeding S CI 2017 01357 seeking judicial review of the annulment decision by the second defendant (the previous proceeding). The plaintiff succeeded at first instance. On 5 February 2018, the Court made orders quashing the annulment decision and remitting the annulment grievance back to the second defendant.[1] However, on 27 August 2018, the Court of Appeal set aside the orders made at first instance and ordered that the application for judicial review be dismissed.[2] On 14 December 2018, the High Court refused the plaintiff's application for special leave to appeal.[3]

7 The plaintiff, who is self-represented, commenced this proceeding on 15 May 2018. In general terms, the plaintiff alleges that the first defendant acted illegally in relation to his recruitment and the extension of his probation, breached his contract of employment, and acted negligently in its treatment of him. The plaintiff also alleges that the second defendant 'did not operate according to the legislation' or 'violated the law' in making the probation extension decision. He seeks an award of compensation in the amount of $1.2 million.

8 Following correspondence from the first defendant's solicitors taking issue with various aspects of the plaintiff's claims, including the adequacy of his pleadings, the plaintiff filed amended statements of claim on 15 January 2019, 4 April 2019 and 12 April 2019.[4]

9 On 29 May 2019, the first defendant made an application for summary judgment on the basis that the plaintiff's claim has no real prospect of success. The application is brought pursuant to s 63 of the Civil Procedure Act 2010 (the Act) and r 22.16 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules). In its submissions filed in the proceeding, the second defendant also sought that summary judgment be entered against the plaintiff on the same basis as contended for by the first defendant. Alternatively, the defendants sought that the proceeding be permanently stayed or dismissed pursuant to r 23.01 of the Rules on the basis that it is scandalous, frivolous, or vexatious, or that it is an abuse of the process of the Court. Further and alternatively, they sought that the plaintiff's final statement of claim be struck out pursuant to r 23.02 of the Rules on the basis that it either does not disclose a cause of action or that it is scandalous, frivolous, or vexatious, or both.

10 This judgment concerns the defendants' application for summary judgment and the alternative relief referred to above.

11 As I have noted, the plaintiff has filed three iterations of his statement of claim. The final statement of claim runs to some 94 pages inclusive of various annexures. In general terms, the plaintiff alleges that the probation extension decision by the second defendant 'was an illegal and unreasonable administrative decision' and that 'the consequences of such a decision have proved to be irreparable' because he will 'never be able to find another job in teaching'. He states that he does 'not seek a judicial review but an external merits review of an administrative government decision making', namely, the second defendant's probation extension decision.

12 The plaintiff also alleges in the final statement of claim that he applied to teach mathematics but was required to teach other subjects in which he had no experience, including electronics and physics. He alleges that there was insufficient evidence of what was said to be his unsatisfactory performance to support the decision to extend his probation and that the College's actions led to him experiencing 'a huge amount of stress'. He also alleges that 'collaboration' between the first and second defendants resulted in the hearing of the probation extension grievance not proceeding and that this was improper.[5]

13 Notwithstanding the contents of the final statement of claim, at the hearing of the application for summary judgment, the plaintiff clarified his positon in a number of important respects in relation to the claims he sought to bring in the proceeding, as well as making a number of significant concessions.

14 Firstly, the plaintiff acknowledged that he could not obtain from the Court a merits review of the probation extension decision. He also does not seek judicial review of any action or decision by the defendants.

15 Secondly, the plaintiff informed the Court that the claims which he wished to advance in the proceeding were confined to the following:

(a) that the first defendant breached his contract of employment by:

(i) requiring him to teach subjects other than mathematics, namely physics and robotics, given that he applied for the role on the basis that he would only teach mathematics and he was not qualified to teach any other subjects;

(ii) allocating him only three periods per week, instead of five, to teach his mathematics course;

(b) that the first defendant breached its duty of care to him by:

(i) requiring him to teach physics and robotics when he did not have relevant experience or knowledge in those fields, overworking him and inducing stress;

(ii) failing to 'provide [a] proper environment for any teacher in the benefit of the students', or a 'friendly, secure environment' by allowing the Principal to threaten to terminate his contract of employment if he did not continue to teach physics and robotics in the subsequent semester, or do as the Principal said;

(iii) threatening to terminate his contract of employment if he refused to sign a professional development plan;

(iv) failing 'to let [him] do [his] job in class to teach' by 'harassing [him] every single day for a full week' to sign the professional development plan;

(v) assessing his probationary period by using the incorrect form;

(vi) imposing a different and additional requirement in relation to the successful completion of his probation;

(vii) forcing him to attend a medical examination; and

(c) that the second defendant breached its duty to him by failing to hear his grievance about teaching subjects other than mathematics when the probation extension decision was made.

16 Thirdly, the plaintiff conceded that the final statement of claim does not adequately or properly plead the claims outlined in the previous paragraph. He sought leave to file a further statement of claim.

17 In support of its application for summary judgment pursuant to s 63 of the Act and r 22.16 of the Rules, the first defendant relied on affidavits of Jialing Chen affirmed on 28 May 2019 and 17 September 2019, submissions dated 21 June 2019 and further submissions dated 13 August 2019. The second defendant also sought summary judgment against the plaintiff on the same grounds advanced by the first defendant and relied on submissions dated 20 August 2019.

18 The defendants sought that summary judgment be entered against the plaintiff on two bases:

(a) that the plaintiff is estopped from pursuing the above claims because of the principles in Port of Melbourne Authority v Anshun Pty Ltd (Anshun);[6] or, alternatively

(b) the final statement of claim does not identify any cause of action, and the plaintiff is unlikely to be able to identify a cause of action in any subsequent pleadings.

19 The principles relevant to the Court's function in considering an application for summary judgment are well established and were not controversial.

20 In accordance with s 63(1) of the Act, the Court has power to give summary judgment in any civil proceeding if satisfied that a claim has 'no real prospect of success'. A claim will meet this description if it has a 'fanciful', as opposed to a 'real', prospect of success.[7]

21 The power to terminate proceedings summarily must be exercised with caution and should not be exercised unless it is clear that there is no real question to be tried.[8]

22 Pursuant to s 64 of the Act, even if the Court is satisfied that a civil proceeding has no real prospect of success, it may order that a proceeding proceed to trial if it is not in the interests of justice to summarily dismiss the proceeding or the dispute is of such a nature that only a full hearing on the merits is appropriate.

23 In Anshun, the High Court set out the test to determine whether a party may be prevented from raising an issue in a subsequent proceeding that it could have raised in a previous proceeding. In general terms, that test is whether the subject-matter of the subsequent proceeding is 'so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it'.[9] The majority stated in the context of the raising of a defence:[10]

it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention by a few.

24 In Gibbs v Kinna (Gibbs), Kenny JA (with whom Ormiston and Phillips JJA agreed) stated as follows:[11]

Whether or not it is unreasonable for a party asserting a cause of action in a later proceeding not to have done so in an earlier proceeding depends almost entirely on the particular circumstances. It seems, however, that there are two matters which must first be established before it can be said that the failure to raise a cause of action might be said to have been unreasonable. The first is that the cause of action must be one that could have been raised in the previous proceeding ... Secondly, it must appear that the same or substantially the same facts will arise for consideration in the second as in the first proceeding ... in my view, adopting the analysis favoured by the majority in Anshun's case, these are necessary but not sufficient conditions for the application of the principle in Henderson v Henderson.

There is at least one factor, however, which is indicative of "unreasonableness" in not asserting a cause of action in an earlier proceeding: if any judgment or order which might be made on the cause of action in the subsequent proceeding would conflict with a judgment or order in the earlier proceeding, then it will ordinarily be unreasonable to refrain from raising the cause of action in the first proceeding.

25 These statements were endorsed by the Court of Appeal in Angeleska v State of Victoria.[13] It was also observed that the Court must 'exercise great caution before finding that an Anshun estoppel operates' and as such the party propounding an Anshun estoppel carries a heavy burden.[14] This reflects the fact that an Anshun estoppel 'will deprive a party of the opportunity to pursue a claim, defence or issue without any determination on the merits.'[15]

26 As correctly submitted by the defendants, these authorities establish that there are three limbs to be satisfied in order to establish an estoppel on the basis of Anshun principles:

(a) the cause of action which a party seeks to assert in a later proceeding must be one that could have been raised in the earlier proceeding;

(b) it must appear that the same, or substantially the same, facts will arise for consideration in the second, as in the first, proceeding; and

(c) if the above requirements are met, it must also have been unreasonable for the party seeking to raise an issue in later proceedings to not have raised the issue in the earlier proceeding, which assessment necessarily will depend almost entirely on the circumstances of the case.

27 It is convenient to deal with the second limb first. The defendant submitted that the current proceeding relates to the same facts that were before the Court in the previous proceeding, specifically, the manner in which the plaintiff alleged he had been treated by the College in his employment leading to the annulment of his probation. In support of this contention, the defendant relied on a 'Table of Plaintiff's Grievances' which demonstrated in detail how each of the alleged factual issues being pursued by the plaintiff in the current proceeding had been raised in the previous proceeding. On the basis of this analysis, I accept that the same, or substantially the same, facts will arise for consideration in this proceeding as arose in the previous proceeding, although, as I explain below, the character of the two proceedings are very different.

28 In relation to the first limb, the character of the previous proceeding, the scope of pleadings, the length and complexity of any trial, any difficulties in raising the claim earlier and any other explanation for the failure to raise the issue previously, may all be relevant to assessing whether the cause of action could have been raised earlier.[16] The fact that a plaintiff is self-represented may also be relevant, however that factor is not determinative of whether the claim could have been brought earlier.[17] It can be less relevant where the self-represented litigant appears to be vexatious.[18]

29 The defendant submitted that the plaintiff could and should have raised his claims of breach of contract and breach of duty in the previous proceeding because in that proceeding he ventilated facts and issues that now form the basis of his claims in this proceeding. In particular, in the previous proceeding, the plaintiff relied on the same facts that he now relies on in relation to his breach of contract claim, namely that he applied for a job as a mathematics teacher but was given different subjects to teach and his mathematics teaching load was less than he had expected.[19] This was the basis for his earlier claim that his performance was subsequently affected and as such his probation was unlawfully annulled. The defendant submitted that these are the same set of facts which underpin the plaintiff's claim of negligence against the first defendant.

30 The defendant also contended that there was no procedural or jurisdictional impediment to the plaintiff raising claims of breach of contract and breach of duty in a proceeding seeking judicial review. Any procedural difficulty associated with bringing those claims in the context of judicial review proceedings could have been overcome by seeking an order under r 4.07 of the Rules that the proceeding commenced by originating motion continue as if it had been commenced by writ.

31 The defendants' emphasis on the commonality of the facts sought to be raised by the plaintiff in this proceeding with those that were before the Court in the previous proceeding does little to advance the establishment of an Anshun estoppel beyond the matters which are relevant to the second limb. The real and novel issue in this case in relation to the first limb is the matter referred to in the previous paragraph. In that regard, I have serious doubts as to whether private law claims for breach of contract and breach of duty of care could properly have been brought in the previous proceeding, being an application for judicial review of administrative action. Given the fundamentally different character of these legal rights and claims, I am not persuaded that the plaintiff's claims in contract and negligence could have been raised in the previous proceeding. The facility provided by r 4.07 of the Rules does not cast any light on this underlying issue. In the absence of any authority in support of the defendants' contention, in my view it would not be appropriate for the Court to uphold the defendants' submissions on such a novel point in an application for summary judgment, given the need for that power to be exercised with caution. It is, however, unnecessary for me to come to decide this question given the conclusion that I have reached on the third limb which I address below.

32 As to the third limb and whether it was unreasonable for the plaintiff to have not raised in the previous proceeding the claims he now seeks to press, the defendant submitted that the following three matters established the unreasonableness of the course adopted by the plaintiff:

(a) there were no difficulties, actual or perceived, in raising the current claims in the previous proceeding;

(b) the underlying facts alleged in both proceedings overlapped, with the first proceeding encompassing all of the grievances raised by the plaintiff in this proceeding and, therefore, all of the issues of concern to the plaintiff in relation to his employment had already been dealt with previously; and

(c) the plaintiff has provided no explanation for his failure to raise the current claims in the previous proceeding.

33 The likelihood of inconsistent or conflicting judgments is a significant factor in determining whether it was unreasonable for a party seeking to raise an issue in later proceedings to not have raised the issue in the earlier proceeding.[20] Here counsel for the defendants properly accepted that there was no such risk. However, they submitted that this was not fatal to establishing the element of unreasonableness and referred to the following statement by Kenny JA in Gibbs:[21]

Whilst the likelihood of inconsistent judgments would, generally speaking, satisfy the criterion of unreasonableness, I assume for the purposes of this case that the criterion may be satisfied even when no such likelihood arises ... [A] consideration of all the relevant facts, including the character of the previous proceeding, the scope of any pleadings, the length and complexity of any trial, any real or reasonably perceived difficulties in raising the relevant claim earlier, and any other explanation for the failure to raise the claim previously.

34 As to the plaintiff's status as a self-represented litigant, the defendant referred to Ferguson AJA's (as she then was) statement in Sahin v National Australia Bank Ltd that being self-represented 'of itself ... does not mean that special circumstances apply such that Anshun estoppel ought not operate'.[22] The defendant submitted that the plaintiff was sophisticated in his approach to the litigation, having conducted proceedings before this Court, the Court of Appeal, as well as applying for special leave in the High Court, and that his claims in breach of contract and negligence were not drawn from esoteric areas of law and are widely known. The defendants further submitted that the plaintiff may be considered 'vexatious' in the sense used in Velissaris v Fitzgerald, in that 'he has sought to mount a case formulated in a different way so as to avoid the consequences of adverse findings'.[23]

35 Even if I was satisfied of both the first and second limbs of the requirements for Anshun estoppel, in the context of an application for summary judgment, I am not persuaded that it was unreasonable for the plaintiff to have not raised in the previous proceeding the issues and claims he now wishes to pursue such that those claims have no real prospect of success. In that regard, it is a matter of particular importance that there is no risk that any judgment in the current proceeding will conflict with the judgment of the Court of Appeal in the previous proceeding.

36 However, assuming as Kenny JA did in Gibbs that the criterion of unreasonableness may be satisfied when no such risk arises, a significant feature to which I have already referred is the very different character of the current proceeding to the previous proceeding. In the current proceeding the plaintiff seeks to vindicate his private legal rights, whereas in the previous proceeding he sought to impugn an administrative decision by challenging the legality of the annulment decision. As I have already explained, I have serious doubts as to whether actions for breach of contract and breach of duty of care could properly have been brought in the previous proceeding. In the absence of any authority on point, there was at least a prospect that the plaintiff would have encountered real difficulties in raising in the previous proceeding the claims he seeks to press in this proceeding. Further and relatedly, it is relevant that the previous proceeding concerned the judicial review of a decision made by the second defendant; in contrast, with one exception,[24] all of the claims the plaintiff now seeks to bring in this proceeding are claims against the first defendant.

37 The overlapping nature of the underlying facts alleged in both proceedings, which the defendants sought to emphasise and which I take into account, must be viewed in the context of these differences in the character of the present and the previous proceedings. Further, that is a consideration which is the singular focus of consideration in the second limb of the Anshun principles.

38 While being self-represented does not of itself mean that special circumstances apply to a litigant such that an Anshun estoppel will not operate, I do not accept the defendants' submissions in relation to the plaintiff's status as a self-represented litigant in considering whether or not his conduct was unreasonable. I do not accept that the plaintiff has any particular sophistication in the law as the defendants appeared to submit. The form and content of his pleadings in this matter and his claim, only belatedly abandoned, for a 'merits review' of the second defendant's decision, would indicate otherwise. Nor do I accept that there is a proper basis to describe the plaintiff as vexatious as contended. Furthermore, I consider that the fact that the plaintiff is self-represented in combination with the fundamentally different character of this proceeding as compared to the previous proceeding may go some way to explain why he has not proffered an explanation as to why he did not bring his current claims in the previous proceeding.

39 For the above reasons, adopting a cautious approach as required by the authorities in relation to both Anshun estoppel and summary judgment, I am not satisfied that the plaintiff's claims have no real prospect of success because of the principles of Anshun estoppel.

40 The defendants submit in the alternative to the operation of an Anshun estoppel that the final statement of claim does not identify any cause of action, and the plaintiff is unlikely to be able to identify a cause of action in any subsequent pleadings. It is convenient to consider this objection by reference to the defendants separately.

41 As I have noted, at the hearing of the application, the plaintiff accepted that the current pleading does not adequately articulate the breach of contract and negligence claims he seeks to make against the first defendant. The issue at hand is whether the plaintiff should be given an opportunity to further amend his statement of claim to incorporate these claims.

42 The defendants submitted that the Court should follow the course taken in Althaus v Australia Meat Holdings Pty Ltd (Althaus) in which the Queensland Court of Appeal upheld a trial judge's dismissal of a claim and refusal to allow the plaintiffs to re-plead on the basis of 'serial failures to articulate their statement of claim and the inference to which the history of the action gives rise that they are incapable of doing so'.[25]

43 Without making any comment on their merit, the plaintiff is able to express in his submissions the specific claims that he wishes to press against the first defendant. His request to re-plead and the claims he wishes to press are not vague or unformulated. No submission was advanced on behalf of the first defendant that those claims in contract and tort were incapable of being advanced as a matter of law.

44 Although the plaintiff has had an opportunity to formulate his claims against the first defendant, I do not accept that it can fairly be said that, as a self-represented litigant, he has exhausted those opportunities. The present circumstances are readily distinguishable from Althaus where the plaintiffs had been given leave to amend their pleadings on ten occasions.

45 As stated by Warren CJ and Nettle JA in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, 'the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried'.[26] It is not clear that there is no real question to be tried in this proceeding. It cannot be said, at this stage, that the plaintiff's claim against the first defendant has no real prospect of success. The plaintiff will be granted leave to file a further amended statement of claim confined to those claims outlined in subparagraphs 15(a)-(b) above.

46 The plaintiff's proposed claim against the second defendant concerns its alleged failure to hear, in the context of the probation extension decision, his grievance about being made to teach subjects other than mathematics. This alleged failure was submitted to be in breach of a duty that the second defendant owed to the plaintiff.

47 The relationship between the second defendant and the plaintiff - a statutory merits review tribunal and an applicant to that tribunal - is not one in which there is an established duty of care. The plaintiff did not articulate how the second defendant owed him a duty of care, nor has he pointed to the existence of a statutory duty.

48 The final statement of claim and the plaintiff's oral submissions on this point were couched in language of the impropriety of the second defendant's conduct and decision, and the second defendant's jurisdiction to hear his grievance regarding the subjects that he was allocated to teach. It is not apparent how these matters demonstrate that the second defendant owed the plaintiff a duty of care. Rather, these matters allude to a claim that the second defendant did not act in accordance with the law, and that the decision to not hear his grievances should be judicially reviewed. The plaintiff has made clear however that he does not seek judicial review.

49 For the above reasons, it is clear that there is no real question to be tried against the second defendant, and that the plaintiff's proposed claim against the second defendant has no real prospect of success. The proceeding against the second defendant will accordingly be dismissed.

50 The application for summary judgment is granted in respect of the second defendant. Leave is granted to the plaintiff to file and serve a further amended statement of claim confined to those claims outlined in subparagraphs 15(a)-(b) above. The application for summary judgment is otherwise dismissed.

51 Within 14 days, the parties are to submit any proposed minute of consent orders in relation to costs or, in the absence of agreement, written submissions on costs no more than three pages in length.

[1] Tutos v State of Victoria [2018] VSC 23 (Tutos Trial).

[2] State of Victoria v Tutos [2018] VSCA 213.

[3] Tutos v State of Victoria [2018] HCASL 392.

[4] The statement of claim filed on 12 April 2019 appears to differ from the statement of claim filed on 4 April 2019 only in that it contains an additional paragraph. It is common ground between the parties that the plaintiff has, in substance, filed three versions of his pleadings. For convenience, I will refer to the last statement of claim filed by the plaintiff, being that identified as the 'Amended Statement of Claim' dated 4 April 2019 and filed on 12 April 2019, as 'the final statement of claim'.

[5] On 27 July 2016, the plaintiff received from the second defendant a letter informing him that the probation extension grievance had been accepted and that a hearing had been scheduled for 15 August 2016. On 12 August 2016, Mr Tony Bugden, Executive Director of the People Division of the first defendant, wrote to the second defendant regarding the second defendant's jurisdiction to hear and determine the plaintiff's probation extension grievance. On 23 August 2016, the second defendant notified the plaintiff of the probation extension decision, namely, that it did not have jurisdiction to hear the probation extension grievance.

[6] [1981] HCA 45; (1981) 147 CLR 589 (Anshun).

[7] See Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, 39 [29] (Warren CJ and Nettle JA) (Lysaght); Utility Services Corporation Ltd v SPI Electricity Pty Ltd [2012] VSCA 158; (2012) 35 VR 628.

[8] Lysaght 40 [35] (Warren CJ and Nettle JA).

[9] Anshun 602 (Gibbs CJ, Mason and Aickin JJ).

[11] [1998] VSCA 52; [1999] 2 VR 19, 26-7 [23] (Gibbs).

[13] [2015] VSCA 140; (2015) 49 VR 131, 184 [194].

[15] Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2018] VSC 82, [84] (Digby J).

[17] See Sahin v National Australia Bank Ltd [2012] VSCA 317, [98] (Ferguson AJA, Warren CJ agreeing at [1], Neave JA agreeing at [5]) (Sahin).

[18] Velissaris v Fitzgerald [2014] VSCA 139, [97] (Ashley JA, Mandie JA agreeing at [106]) (Velissaris).

[19] Tutos Trial [103]-[106] (Ierodiaconou AsJ).

[20] Anshun 603 (Gibbs CJ, Mason and Aickin JJ); Gibbs 28 [28] (Kenny JA); Sahin [91] (Ferguson AJA).

[22] Sahin [98] (Ferguson AJA) (citations omitted).

[24] The claim referred to in [15(c)] above, considered further below at [46]-[49].

[25] [2009] QCA 221, [7], [21] (Keane JA, McMurdo P agreeing at [1], Wilson J agreeing at [25]) (Althaus).