Victorian Civil and Administrative Tribunal|2001-07-19|Before: Mr J

West Homes (Australia) Pty Ltd v Crebar Pty Ltd & Ors [2001] VCAT 46 (19 July 2001)

domestic building - strike out summons - principles of drafting

Crebar Pty Ltd, Fairborz Nejad & Mary Angela Nejad, Sing Ming Wong, Daniel Malacchini, Erica Muetzelfeldt, Devansingam Bok & Marjorie Bok, Colleen Pearce & Alexander Robins, Dieter Liebricht, Gail Redman, Mark Anthony Tomlinson & Deborah Darlene Pearce , Catherine Shugg, Antonio Perin, Jenny Malacchini & Gregory Maxwell Oates, Lorna Panye & Kevin McDonald, Mary Rita Malacchini & Gregory Maxwell Oates, Dev Bok Ltd, Mr Nick Galatas, Mr Harry Barbon

Medium Neutral Citation [2001] VCAT 46

1. I am asked to make a ruling in this matter. Pursuant to s75 of the 1998 Act, application is made by St George Bank ("Bank") to dismiss or strike out paragraphs in the Applicant's Amended Points of Claim.

"(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion--

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(2) If the Tribunal makes an order under sub-section (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(3) The Tribunal's power to make an order under sub-section (1) or (2) is exercisable by--

(a) the Tribunal as constituted for the proceeding; or

(4) An order under sub-section (1) or (2) may be made on the application of a party or on the Tribunal's own initiative.

(5) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law."

3. At the hearing of the application, I detected, I think, some uncertainty by Counsel as to the nature of the case he was seeking to put forward on behalf of the Bank. At first I was told there were "jurisdictional" issues involved. Then, however, the matter proceeded as if it were a "pleading" summons whereby the Bank sought to challenge paragraphs in the Amended Points of Claim.

4. The subsequent conduct of the hearing, which went for one day, confirmed in my mind that, in reality, this was a "pleading" summons. I think this point emerged very clearly after Counsel for the Applicant submitted, correctly in my mind, that if it were anything else, the Bank would be asking me, in effect, to sit in appeal from the decision of Senior Member Young given by him on 6 April 2001. And, of course, this is not something I am, by law, authorised to do.

5. The following paragraphs in these Reasons also appear substantially in the Reasons for Decision in the same matter where application is made under s75 by the First, Third and Fourth Respondents.

6. I must indicate, at the outset, that, in my view, s75 does not contemplate the bringing of a "pleading" summons in the way in which it was proceeded with before me. In my view s75 is plainly concerned only with "merits" matters. I say this because of its use of the word "proceeding". It allows a "proceeding" to be dismissed or struck out. A proceeding in this sense, it seems to me, is the matter being advanced in the Tribunal. It does not seem to be simply the wording in a document in a proceeding. The matter is one which will be constituted by the cause or causes of action. It is that or those which must be "frivolous, vexatious, misconceived or lacking in substance" or which must be "otherwise an abuse of process." This clearly relates to the "merits". Understood in this way, s75 does not contemplate the bringing of a "pleading" summons only. On this basis, the Summons before me is, itself, misconceived.

7. Despite this as my view, I can see an argument, though, that the matter sought to be advanced in the Tribunal will be defined by a party's Points of Claim. On this basis, therefore, I am prepared to assume that the Summons in this case is one properly before me in seeking orders under s75. Therefore I am asked, on this occasion, as I say, to agree that various paragraphs in the Amended Points of Claim should be dismissed or struck out.

8. The Bank contends that it is elemental that it should know the nature of the case which is sought to be brought against it. The Bank argues that, upon an analysis of the various paragraphs, this is something which it cannot presently know.

9. The Applicant, on the other hand, contends that the various paragraphs do demonstrate sufficiently the nature of the case sought to be brought. Even admitting some infelicities of expression, they argue that the Bank, in any event, already is well aware of the facts which are said to be in dispute.

10. Counsel for both sides supported their respective positions with reference to authorities and statutory provisions. At one stage the issue which was canvassed was whether the Tribunal is properly a "court" or not and whether it may be said to be, in that regard, a court of pleadings.

11. I must say, in comparison with the functions of the Tribunal set out in ss97 and 98 of the 1998 Act, I found much of the argument quite misplaced and, at times, wasteful and repetitive. The Tribunal, plainly, may be a "court" for various purposes but it is not a court of pleadings. This, however, does not mean that a party in a case is relieved of its duty to make its case known to the other side. It is basic that the Tribunal should require that this duty be observed. Otherwise, natural justice will be denied. Often, though, it is quite possible for a party to make its case known sufficiently without having to resort to fine legalese. Indeed, fine legalese can often obscure. Moreover, the Tribunal is not bound to proceed with all technicality and undue formality. A so-called "pleading" summons invites excessive semantical debate. Ideally, Points of Claim, or of Defence, should normally be able to be understood by the average person.

12. Considering these principles, and the submissions made, I am of the view that under s75 of the 1998 Act I should not proceed to strike out any of the paragraphs in the Amended Points of Claim.

13. I am unable to be satisfied that they (if they can be said to constitute a "proceeding") are "frivolous, vexatious, misconceived or lacking in substance" under s75 (1)(a) or, under s75 (1)(b), that they are "otherwise an abuse of process". For me to be able to act under s75, these are the terms which must be met. In my view, however, I cannot be so satisfied as to either. Poor drafting is one thing but the operation of s75 is quite another. In my view the challenged paragraphs of the Amended Points of Claim do not go beyond the poor drafting stage except in one instance where there is an actual error. I refer to paragraph 23 where it mentions Respondent rather than "Proprietors".

14. In my view s75 does not allow for me to strike out a pleading which displays only poor drafting if the requirement of s75 (1)(a) or (1)(b) are not met. The requirements in those provisions are not, in my view, met in this case. I note that the Bank filed its Points of Defence without taking any of the points now sought to be raised. I note also that the Bank has not sought to file and serve a Request for Further and Better Particulars or to secure an order from the Tribunal allowing it to do so.

15. It follows, I think, that the Application must be dismissed.

West Homes (Australia) Pty Ltd v Crebar Pty Ltd & Ors [2001] VCAT 46

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Judgment (25 paragraphs)

West Homes (Australia) Pty Ltd v Crebar Pty Ltd & Ors [2001] VCAT 46 (19 July 2001)

Parties