1 The application is summarily dismissed pursuant to s. 75 of the Victorian Civil & Administrative Tribunal Act 1998.

2 The applicant is to pay costs of $4000 to the respondent by 18 December 2006.

1 On 26 July 2006 Ms Wells lodged an application under the Fair Trading Act 1999 seeking compensation from Tisher Liner & Co, a firm of solicitors. Tisher Liner & Co had acted for Ms Wells in relation to her business. The thrust of Ms Wells' claim was that Tisher Liner & Co had not given proper advice and had not taken action to advance her matter.

2 Tisher Liner & Co today sought an order pursuant to s.75 of the Victorian Civil & Administrative Tribunal Act 1998 that the claim made by Ms Wells be summarily dismissed on the basis that it is frivolous, vexatious, misconceived, lacking in substance, or otherwise is an abuse of process.

3 Speaking in general terms, the thrust of today's application is, first, that an identical dispute between the same parties was determined by the Legal Profession Tribunal on 24 June 2005 and, secondly, that the application was lodged more than six years after the occurrence of the events that gave rise to the application.

The proceedings in the Legal Profession Tribunal:

4 The proceedings determined by the Legal Profession Tribunal arose out of a complaint made by Ms Wells under the Legal Practice Act 1996. Ms Wells accepted today that, in substance, the claim that she made under the Legal Practice Act was the same claim that she now is making under the Fair Trading Act, although there is one difference. The difference is that she sought an order for compensation of $15,000 from the Legal Profession Tribunal and she seeks an order for compensation of $68,900 from VCAT. However, this is readily explained by the fact that the maximum amount of compensation that could be awarded by the Legal Profession Tribunal was $15,000.

5 On 24 June 2005 the Legal Profession Tribunal, after conducting a hearing, dismissed the claim made by Ms Wells under the Legal Practice Act.

6 Section 133(2) of the Legal Practice Act 1996 provided that, where a claimant obtained an order for compensation, the claimant could take proceedings in a court seeking to recover any pecuniary loss over and about the compensation awarded by the Legal Profession Tribunal. That provision is not applicable in this case, simply because Ms Wells did not obtain an order for compensation from the Legal Profession Tribunal.

7 Mr. G.M. Randall of counsel, who appeared for Tisher Liner & Co, relied upon Yim v State of Victoria[1] where part of a claim was struck out pursuant to s. 75 of the VCAT Act because that part of the claim had been dismissed in an earlier application.

8 Mr. Randall also relied upon Cassar v Skunca[2], a case where the applicant declined an invitation by the Tribunal to add a named respondent, but after the conclusion of the case brought a separate application against the named respondent. The second application raised the same issues that had been determined in the first application. VCAT dismissed the second application pursuant to s. 75 on the ground that, having declined the invitation to add a respondent, and having lost on the issues, it was an abuse of process to raise the same issues in a separate application against the named respondent.

9 In the present proceedings Ms Wells seeks to re-litigate the same claims against the same respondent, although the original proceedings were brought under the Legal Practice Act 1996 and the present proceedings are brought under the Fair Trading Act 1999. There is nothing in either of those Acts which indicates to me that Ms Wells is entitled to take that course.

10 Determination of the issues in the original proceedings brought the litigation between Ms Wells and Tisher Liner & Co to an end. The attempt by Ms Wells to re-litigate the same issues against the same respondent is misconceived and an abuse of process, within the meaning of those terms in s. 75 of the VCAT Act.

11 An action based upon contract or tort must be commenced within six years after the occurrence of the events that gave rise to the action: Limitation of Actions Act 1958 s.5.

12 Ms Wells lodged the present application at VCAT on 26 July 2006, which means that the six year limitation period goes back to 27 July 2000.

13 There is a dispute as to the date upon which Ms Wells terminated the services of Tisher Liner & Co. Ms Wells contends that the date of termination was 1 August 2000, when she sent a letter to Tisher Liner & Co terminating its services. Tisher Liner & Co contends that its services were terminated by Ms Wells in a telephone discussion on 14 July 2000.

14 Even if Ms Wells is correct, to be within the limitation period she could make claims only in respect of events that occurred or failed to occur within the four day period 27 July 2000 to 1 August 2000.

15 Detailed particulars of the claims made by Ms Wells were attached to her application. All of the events referred to in the particulars occurred prior to 27 July 2000. However, some of the claims made by Ms Wells allege failure to take action. Failures of that kind might have continued to run during the four day period but, for the reasons that I am about to give, I am satisfied that Tisher Liner & Co was not negligent and did not fail to act in accordance with its instructions during the four day period.

16 It is common ground that a telephone discussion took place between Ms Wells and Mr. Greenberg of Tisher Liner & Co on 14 July 2000. Ms Wells said today that she informed Mr. Greenberg during the telephone discussion that she was "not really sure" whether she wanted Tisher Liner & Co to continue to act on her behalf. Tisher Liner & Co contended today that its services were terminated by Ms Wells during the telephone discussion. I will assume for present purposes that Ms Wells' version of the discussion is correct.

17 It is common ground that Tisher Liner & Co wrote a letter to Ms Wells on 27 July 2000. The letter is ambiguous to a degree, but it refers to the telephone discussion on 14 July 2000, it notes that "you have now advised us that you do not wish to have this firm continue to represent you", and it asks Ms Wells to "confirm in writing that we are no longer to proceed to act on your behalf".

18 I am satisfied, first, that it was reasonable for Tisher Liner & Co to write to Ms Wells on 27 July 2000 seeking written instructions as to whether it was to cease to act on her behalf and, secondly, to wait four days until 1 August 2000 for a response from Ms Wells. In the light of the telephone discussion of 14 July 2000, Tisher Liner & Co was not negligent in not taking action on behalf of Ms Wells (if such was the case) during the four days it waited for a response.

19 In circumstances where Tisher Liner & Co has defended the application by relying upon the limitation period, I find that the present application is lacking in substance within the meaning of that term in s. 75 of the VCAT Act.

20 I record that Ms Wells informed me that she believed that she could bring her claims within six years after the termination of her instructions to Tisher Liner & Co, rather than six years after the events giving rise to her claims. I have no reason to doubt that she held that belief, but I consider her belief to be wrong in law and not relevant to the present application.

21 A combination of the two grounds relied upon by the respondent satisfies me that this is an appropriate case in which to exercise the discretion given to me by s.75 of the VCAT Act, and to summarily dismiss the application.

22 Mr. Randall sought an order pursuant to s. 75(2) that Ms Wells pay the costs incurred by Tisher Liner & Co in defending the application. He pointed out that Tisher Liner & Co had incurred costs in successfully defending the same claims before the Legal Profession Tribunal, without obtaining an order for costs, and submitted that it should not have to bear the costs of defending the claims a second time. I agree. In bringing the claims a second time, in circumstances where the limitation period had all but expired when the second application was made, Ms Wells should pay the costs of the second application.

23 I heard submissions as to the amount of the costs, and then fixed the costs at $4000.

[1] [2000] VCAT 821

[2] [2002] VCAT 381