Federal Court of Australia
Hall v Craig [2022] FCA 1312
ORDERS
Applicant | ||
AND: | First Respondent INTEGRITY REAL ESTATE NOWRA PTY LTD Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The applicant’s application for summary judgment is dismissed.
2. The applicant’s amended originating application is dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1) of the Federal Court Rules 2011 (Cth).
3. The applicant is to pay the respondents’ costs on an indemnity basis.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
[1] | |
[7] | |
[13] | |
[25] | |
[31] | |
[31] | |
[40] | |
[52] | |
5.4 Further allegations made by the applicant in his submissions | [53] |
[57] | |
[61] | |
[61] | |
7.2 Facts relied upon in support of the application for indemnity costs | [63] |
[68] | |
[72] | |
[75] |
1 The applicant, Daniel Hall, leased residential premises in Nowra, New South Wales, from the first respondent, Toby Craig, pursuant to a residential tenancy agreement. The second respondent, Integrity Real Estate Nowra Pty Ltd, is Mr Craig’s property agent and was relied upon by him to administer the property.
2 The respondents seek summary dismissal of the amended originating application filed by Mr Hall (OA) under s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and rr 26.01(1)(a), (b), (c) and/or (d) of the Federal Court Rules 2011 (Cth) (FCR) on the ground that Mr Hall has no reasonable prospects of success in prosecuting the proceeding. The respondents also seek their costs on an indemnity basis. In support of their interlocutory application, the respondents rely upon the following evidence:
(1) the affidavit of Robert James Bruce Foster sworn on 9 August 2021 (Foster affidavit);
(2) the affidavit of Lisa Mullins sworn on 9 August 2021 (first Mullins affidavit);
(3) the affidavit of Toby Craig sworn on 9 August 2021; and
(4) the affidavit of Lisa Mullins sworn on 22 October 2021.
3 No evidence was filed by Mr Hall in response. Mr Hall also made an oral application at the case management hearing on 19 October 2021 that summary judgment be given against the respondents.
4 Orders were made on 19 October 2021 setting a timetable for the parties to file and serve evidence on the interlocutory applications. However, Mr Hall did not file any affidavit in support of his application for summary judgment or in response to the respondents’ interlocutory application.
5 Detailed written submissions were filed by all parties on the respondents’ application for summary dismissal, and the interlocutory application was decided on the papers with the agreement of all parties.
6 For the reasons set out below, Mr Hall’s amended originating application has no reasonable prospects of success, is frivolous and vexatious, fails to disclose a reasonable cause of action, and constitutes an abuse of process. The originating application should be dismissed with costs on an indemnity basis. There was also no merit in Mr Hall’s application for summary judgment against the respondents.
2. RELEVANT PRINCIPLES: SUMMARY DISMISSAL
7 Section 31A of the FCA Act relevantly provides that:
(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
8 The test for summary dismissal laid down by r 26.01(a) of the FCR (“no reasonable prospect of successfully prosecuting the proceeding”) is the same test for summary dismissal as that in s 31A of the FCA Act: Shammas v Canberra Institute of Technology [2014] FCA 71 at [13], [51] (Foster J). Rule 26.01 also provides for a matter to be summarily dismissed where the proceeding is frivolous or vexatious, no reasonable cause of action is disclosed, the proceeding is an abuse of Court process, or the respondent has no reasonable prospect of defending the proceeding (rr 26.01(b), (c), (d) and (e) respectively).
9 The principles governing the application of s 31A are well established and were summarised recently in Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7] (Perry J) as follows:
(1) The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).
(2) With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:
… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.
(3) Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]–[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).
(4) An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).
10 Consistently with these principles, Reeves J in Cassimatis explained at [46] that:
… the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.
11 His Honour illustrated the application of these principles at [47]–[48] as follows:
Accepting there can be no “hard and fast” rule about this, as a general principle, these authorities show that the moving party on an application for summary dismissal of the present kind is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceedings relies upon a question of fact that can be truly described as fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials. Conversely, as a general principle, it is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined between the parties. This is more likely to be the case where the available materials include pleadings that raise factual disputes that can be truly described as significant, substantial, plausible or weighty. A real question of fact is also more likely to exist where the question/s of fact concerned is/are complex, eg involving numerous different events or transactions over a long period of time.
Similarly, as a general principle, the moving party on an application for summary dismissal is likely to succeed on its persuasive onus if it is able to demonstrate to the Court that the applicant’s success in the proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial. On the other hand, the moving party would be unlikely to succeed if the Court is satisfied that the applicant’s success in the proceedings relies upon a question of law that is serious or important, or is difficult and therefore likely to require lengthy argument for its resolution, or involves conflicting authority, or is apparently arguable, yet novel.
(Emphasis added.)
12 In line with these principles, summary dismissal is not necessarily warranted simply because the claim is poorly drafted, as a deficiency of that nature may be addressed by the grant of leave to amend.
13 Save where I otherwise indicate, the following matters do not appear to be in contention.
14 On or about 24 June 2020, Mr Hall entered into a residential tenancy agreement with respect to the property with Mr Craig via Integrity Real Estate. Integrity Real Estate is Mr Craig’s property agent upon whom he relied to administer the property such as advertising that it is available for lease, preparing the lease agreement, collecting rent, and other similar activities. The lease was initially for a fixed term ending on 23 December 2020. From that date, Mr Hall (and his co-tenant, Chad Monaghan) continued to lease the property from Mr Craig on a periodic tenancy.
15 On 4 March 2021, Integrity Real Estate received a “Tenant Vacating Notice” from Mr Monaghan, indicating that he was moving out and terminating his obligations under the periodic tenancy. The notice indicated that he had in fact moved out of the property on 26 February 2021, and Integrity Real Estate removed Mr Monaghan’s name from the tenancy with effect from 23 March 2021 (being 14 business days after the notice was received).
16 On 30 March 2021, Mr Craig instructed Integrity Real Estate to issue a termination notice in relation to Mr Hall’s tenancy. Integrity Real Estate contends that Mr Craig did not give a reason for wanting to terminate the tenancy.
17 Integrity Real Estate proceeded to issue a termination notice to Mr Hall utilising the “no cause” ground under s 85 of the Residential Tenancies Act 2010 (NSW) (RTA). The period of notice provided to Mr Hall required him to vacate the property by 28 June 2021.
18 On 29 June 2021, Integrity Real Estate lodged an application for possession of the property with the New South Wales Civil and Administrative Tribunal (NCAT) in accordance with instructions from Mr Craig, in whose name and on whose behalf the proceedings were conducted. Mr Craig did not actively participate in the NCAT proceedings.
19 On 29 June 2021, Mr Hall’s mother wrote to Integrity Real Estate referring among other things to Mr Hall’s disability and chronic pain and to an alleged assault on him on 10 June 2021 causing him to suffer fractured ribs and multiple bruises. She also contended that s 85 of the RTA is inconsistent with s 25 of the Disability Discrimination Act 1992 (Cth) (DDA) for the purposes of s 109 of the Constitution. A copy of this letter was annexed to the first Mullins affidavit at annexure LM-2.
20 On 13 July 2021, Integrity Real Estate received Mr Hall’s response to the NCAT proceedings (first Mullins affidavit at annexure LM-3).
21 On 20 July 2021, NCAT made the following consent orders:
1. The Residential Tenancy Agreement is terminated in accordance with: s 85 of the Residential Tenancies Act 2010 as the landlord has served a 90 day notice for termination of a periodic agreement.
2. The Residential Tenancy Agreement is terminated immediately in possession is to be given to the landlord on the date of termination.
3. The order for possession is suspended until 23-Aug-2021.
4. The tenant shall pay the landlord a daily occupation fee at the rate of $49.29 per day from the day after the termination, namely 21-Jul-2021 until the date vacant possession is given to the landlord.
5. Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.
6. The landlord’s agent is to advise the tenant in writing by the delivery of a letter to the premises by 6:00 pm on 20-Jul-2021 of the orders made today.
(First Mullins affidavit at [14] and at annexure LM-4.)
22 On 22 July 2021, Integrity Real Estate received an email from Mr Hall containing a copy of his originating process and statement of claim in this proceeding.
23 Mr Hall vacated the property on 15 September 2021.
24 Mr Craig alleges that he was unaware of Mr Hall’s claimed disability, drug use, and alcohol use before reading his NCAT submissions, and denies having discriminated against Mr Hall or terminated his lease on the basis of Mr Hall’s disability. Integrity Real Estate also denies having been aware of these matters until receiving the letter from Mr Hall’s mother dated 29 June 2021. Integrity Real Estate also denies having been informed by Mr Hall of any financial hardship for which he was suffering before the termination notice was issued on 30 March 2021. Integrity Real Estate also alleges that it has no record of any assault committed by a Nathan Risby or the subsequent actions by New South Wales police. Integrity Real Estate also alleges that once it became aware of unauthorised persons living on the property without the landlord’s permission, by reason of a neighbour reporting the matter to it, Integrity Real Estate demanded that those persons be removed. None of these apparently contentious matters fall to be determined in the context of the application for summary dismissal.
25 By his amended originating application, Mr Hall seeks an injunction under s 232 of the Australian Consumer Law (ACL), being schedule 2 of the Competition and Consumer Act 2010 (Cth), prohibiting the first and second respondents from enforcing an eviction order made on 21 July 2021 by NCAT in Craig v Hall RT21/28116.
26 Mr Hall also seeks declarations that the respondents engaged in misleading or deceptive conduct contrary to s 18 of the ACL, and conduct in trade or commerce, in connection with the supply of goods or services to Mr Hall, that was unconscionable contrary to s 21 of the ACL, on the following grounds:
(1) the original co-tenant, Mr Monaghan, was released from the lease debt shared with Mr Hall in about June 2020, leaving Mr Hall thereafter to bear the full burden of the lease debt despite the respondents being aware that Mr Hall would thereafter be required to pay more than half his income to satisfy the lease debt;
(2) the first respondent issued Mr Hall a “no cause” termination notice pursuant to s 85 of the RTA despite “reasonably knowing it was a matter involving [Mr Craig’s] own breach of section 25 of the Disability Discrimination Act 1992 (FEDERAL LAW)”; and
(3) the respondents “jointly participated in an enforcement action before NCAT and against the applicant, that they both reasonably knew was a matter that should have been heard in the first instance before a court of federal jurisdiction and that NCAT does not have federal jurisdiction”.
27 In addition, Mr Hall alleges that the respondents jointly or separately engaged in unconscionable conduct contrary to s 21 of the ACL in that:
(1) the respondents were aware that there was a “squatter” on the property;
(2) Integrity Real Estate refused Mr Hall’s request to cause the removal of the squatter from the property and directed Mr Hall to remove the squatter himself; and
(3) Mr Hall attempted unsuccessfully to remove the squatter who, in response, threatened Mr Hall and subsequently assaulted him in what is described in the amended originating application as “technically … common law assault and battery of, or caused by, the wilful inaction of the Second respondent”.
28 Finally, Mr Hall seeks damages including general damages, aggravated damages, and exemplary damages, together with interest, apparently (although it is not entirely clear) for injuries (fractured ribs) allegedly sustained by him as a result of the assault occasioned on him by the “squatter”.
29 Mr Hall also filed an amended statement of claim (SC). The allegations in the amended statement of claim can be summarised briefly as follows:
(1) Mr Hall is a person with a disability as defined in s 4 of the DDA (referring to allergies to pharmaceutical pain relief and permanent spinal injuries) and a tenant of Mr Craig pursuant to the RTA;
(2) as a result of his allergies, the only substance that can treat his chronic pain is fresh cannabis leaf;
(3) Mr Craig issued a “no cause” termination of the lease under the RTA after seeing Mr Hall’s medical dried cannabis leaf in the premises during an inspection;
(4) Integrity Real Estate refused to permit Mr Hall’s request to add a co-tenant after Mr Monaghan was released from the lease, and its inaction “is an admission by inference of professional negligence or professional misconduct” (SC at [13]);
(5) Integrity Real Estate’s lack of reasonable appropriate action in the circumstances constitutes a breach of s 60 of the ACL (guarantee as to due care and skill) causing Mr Hall financial hardship and “personal physical trespass to the person and trespass to the Applicant’s leased property” (SC at [14]);
(6) as a result of Integrity Real Estate’s inaction in failing to respond to Mr Hall’s requests for assistance to evict Mr Hall’s acquaintance, Mr Risby, who he had asked to cohabitate, Mr Hall was attacked and injured when he instructed Mr Risby to leave on 10 June 2021;
(7) Mr Hall, by a submission to NCAT prepared by his mother, contended before the NCAT that:
(a) the issue concerns a constitutional matter by virtue of which ss 76(i) and (ii) of the Constitution confer original jurisdiction on the High Court;
(b) section 85 of the RTA is inconsistent with s 25 of the DDA; and
(c) section 25 of the DDA therefore prevails under s 109 of the Constitution;
and provided a copy of the decision in Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304 to ensure that NCAT understood Mr Hall’s submissions;
(8) at the hearing before NCAT on 20 July 2021, NCAT “completely ignored the Applicant’s submissions on the constitutional issue, stating that they had no idea why Applicant included the High Court decision in Burns v Corbett” (SC at [3]);
(9) despite the absence of any reference to federal law in their orders and despite reasonably knowing that NCAT had no jurisdiction, “NCAT actions indicate a direct bias decision under FEDERAL LAW” (SC at [3a]); and
(10) the second respondent “remained silent on the legal inaccuracy, unconscionably agreeing to act in breach of the Federal Constitution and mandatory Federal anti-discrimination statute in provision of accommodation to a person with a disability, such that the Applicant is” (SC at [4]).
30 I note that complaints are also made concerning the police response to the alleged assault on Mr Hall, although these have no conceivable relevance to any allegations against the respondents.
5. THE RESPONDENTS’ APPLICATION FOR SUMMARY DISMISSAL
5.1 The application for injunctive relief
31 As earlier explained, Mr Hall seeks injunctive relief pursuant to s 232 of the ACL, including an interim injunction on an interlocutory basis, the effect of which is to prevent the respondents from enforcing the NCAT order made by consent that Mr Hall vacate the property by 23 August 2021. Section 232(1) of the ACL provides that:
A court may grant an injunction, in such terms as the court considers appropriate, if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:
(a) a contravention of a provision of Chapter 2, 3, or 4; or
(b) attempting to contravene such a provision; or
(c) aiding, abetting, counselling or procuring a person to contravene such a provision; or
(d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or
(f) conspiring with others to contravene such a provision.
(Emphasis added.)
32 Chapter 2 of the ACL includes ss 18 and 21 which are the subject of allegations by Mr Hall.
33 The Court may grant an injunction under s 232 of the ACL on an application by the regulator or any other person (s 232(2) of the ACL).
34 The application for injunctive relief has no reasonable prospects of success.
35 First, the conduct attributed to the respondents by Mr Hall is manifestly insufficient to enliven the power to grant injunctive relief under s 232 of the ACL. Nothing approaching a contravention or attempted contravention of (relevantly) ss 18 or 21 of the ACL has been pleaded for the reasons I elaborate below.
36 Secondly, the applicant has not demonstrated that the injunction would serve any purpose: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liq) [2007] FCAFC 146; (2007) 161 FCR 513 at [111] (the Court). Mr Hall has already vacated the premises and resides elsewhere.
37 Thirdly, insofar as the application seeks an injunction on the basis that the applicant has been the subject of unlawful discrimination by reason of his disability, the respondents rightly contend that the preconditions for the grant of such relief have not been met. Specifically, pt IIB of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) establishes a regime for redress for “unlawful discrimination” commencing with the lodging of a written complaint with the Australian Human Rights Commission (AHRC) under s 46P of the AHRC Act. “Unlawful discrimination” is defined in s 3 of the AHRC Act to mean (relevantly) any acts, omissions or practices that are unlawful under pt 2 of the DDA. The latter includes s 25 of the DDA, on which the applicant relies. Section 25(2) relevantly provides that it is unlawful for a person to discriminate against another person on the ground of the other person’s disability:
(b) by evicting the other person from accommodation occupied by the other person; or
(c) by subjecting the other person to any other detriment in relation to accommodation occupied by the other person;
…
38 However, proceedings may be instituted in this Court for discrimination contrary to the DDA only where the conditions in s 46PO of the AHRC Act have been met, that is, where a complaint to the AHRC has been terminated: see, eg, Picos v Australian Federal Police [2015] FCA 118 at [36]–[38] (Perry J) and the authorities referred to therein. In other words, a contravention of s 25 of the DDA gives rise only to a right to invoke the procedures, and to obtain the remedies, for which provision is made in the AHRC Act. There is no suggestion in this case that any complaint to the AHRC has been terminated, let alone lodged.
39 Furthermore, while the AHRC Act provides that the Court may grant an interim injunction on an application under s 46PP(1) to maintain the status quo or the rights of any complainant, respondent or affected person, that power is not available where, as in this case, no complaint has been made under AHRC Act. It follows that insofar as an interim injunction is sought on the basis of unlawful discrimination on the grounds of a disability, it equally must fail.
5.2 The application for declaratory relief
40 The applicant seeks declarations of alleged unconscionable conduct against the respondents pursuant to s 21 of the ACL and misleading and deceptive conduct contrary to s 18 of the ACL. With respect to the latter, however, the respondents rightly contended that the pleadings are confusing in that they fail to plead the elements of the alleged misleading or deceptive conduct and refer instead to the respondents’ alleged unconscionable conduct as being actions “in trade or commerce which [were] misleading or deceptive, or [were] likely to mislead or deceive contrary to section 18 ACL”. It is clear therefore that the applicant’s complaint ultimately reduces to one of unconscionable conduct.
41 Section 21(1) of the ACL proscribes unconscionable conduct freed from the requirements which constrain the equitable concept of unconscionability. That subsection provides that:
(1) A person must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services to a person; or
(b) the acquisition or possible acquisition of goods or services from a person;
engage in conduct that is, in all the circumstances, unconscionable.
(Emphasis added.)
42 A non-exhaustive list of factors which the Court must consider in determining whether particular conduct was, objectively speaking, unconscionable for the purposes of s 21 is contained in s 22(1).
43 As I explained in Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (Subject to Deed of Company Arrangement) [2021] FCA 956 at [121]:
the statutory question posed by s 21(1) is whether the conduct in question is objectively to be characterised as “unconscionable” in the sense that it is “so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience”: [Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 267 CLR 1 (Kobelt)] at [92] (Gageler J); see also eg NRM Corporation Pty Ltd v Australian Competition and Consumer Commission [2016] FCAFC 98; (2016) ATPR ¶42-531 (NRM Corporation Pty Ltd) at [163] (citing Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 at [36]) and [Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 4) [2018] FCA 1408] at [717]. This means, as Gageler J further explained in Kobelt at [93] that an assessment of whether conduct is unconscionable is “… informed by a sense of what is right and proper according to values which can be recognised by the court to prevail within contemporary Australian society”, including respect for the dignity and autonomy and equality of individuals and the cultural diversity of communities.
44 As earlier described, the amended originating application and amended statement of claim rely on a number of matters as constituting unconscionable conduct. There is, however, no attempt by the applicant in any of his pleadings or submissions to engage with the factors which the Court must consider by virtue of s 22(1) of the ACL in determining whether conduct is unconscionable. Nor in any event are the matters relied upon by Mr Hall capable of constituting unconscionable conduct for the following reasons.
45 First, Mr Hall contends that the respondents’ release of a co-tenant from his periodic tenancy with Mr Craig constituted unconscionable conduct (OA at [2]). However, s 97 of the RTA provides that:
(1) A tenant may, at any time, give a termination notice for a periodic agreement.
(2) The termination notice must specify a termination date that is not earlier than 21 days after the day on which the notice is given.
46 As such, as the respondents submit, they were bound to accept the co-tenant’s termination of the periodic tenancy on appropriate notice being provided and could not compel the co-tenant to remain bound by the tenancy agreement.
47 Secondly, Mr Hall alleges that the issue of the “no cause” termination notice under s 85 the RTA was unconscionable in circumstances where the conduct was allegedly in breach of s 25 of the DDA (OA at [3]). However, as earlier explained, a contravention of s 25 of the DDA gives rise only to a right to invoke the procedures, and to obtain the remedies, for which provision is made in the AHRC Act. In effect, therefore, Mr Hall seeks to institute proceedings directly in the Federal Court by characterising a breach of the DDA as “unconscionable conduct” under the ACL, thereby circumventing the procedures established under the AHRC Act. Otherwise, leaving aside any allegations of unlawful discrimination, the respondents had the right under s 85 of the RTA to terminate the periodic residential tenancy agreement without cause on the giving of sufficient notice. In those circumstances, the claim for declaratory relief with respect to the “no cause” termination notice is also without any reasonable prospects of success.
48 Thirdly, the respondents are plainly correct in submitting that they were justified in commencing enforcement action in NCAT, contrary to the applicant’s contention that the respondents’ participation in the enforcement action before NCAT when they reasonably knew the matter should have been heard by a federal court was unconscionable (OA at [4]). The fact that the applicant’s mother alleged (in correspondence) an inconsistency between s 85 of the RTA and s 25 of the DDA for the purposes of s 109 of the Constitution did not render inappropriate the institution of proceedings in that forum by the respondents or deprive NCAT of its jurisdiction. Furthermore, Mr Hall not only participated in the NCAT proceedings, but consented to the orders made by NCAT, and has at no time sought to pursue any allegation of breach of the DDA in an appropriate jurisdiction. In any event, s 21(2) of the ACL provides that s 21 does not apply to conduct engaged in only because the person engaging in the conduct institutes legal proceedings in relation to the supply. As such, the respondents’ participation in the proceedings before NCAT could not be characterised as unconscionable for the purposes of s 21(1) of the ACL.
49 Fourthly, Mr Hall alleges that the respondents engaged in unconscionable conduct in that they were aware of a squatter residing at the property and did not take action to remove the squatter (OA at [5]). This allegation is also plainly untenable. Indeed, on the applicant’s own case, the so-called “squatter” was an acquaintance of his who resided at the premises by his invitation (SC at [15]).
50 In the fifth place, Mr Hall alleges that the respondents committed common law assault and battery against him through their “wilful inaction” in relation to the “squatter” (OA at [5e]). However, as the respondents submit, the elements of assault or battery are not adequately pleaded and they are incapable in any event of being pleaded against the respondents on the very facts alleged by Mr Hall. Specifically, there is no allegation that the respondents assaulted the applicant; indeed the contrary is alleged. As such, as the respondents submit, “[t]his is a confusing pleading which attempts to conflate assault commissioned via ‘wilful inaction’ as being unconscionable conduct, or some other breed of conduct which can be meaningfully attributed to either Respondent. It cannot succeed, even if the facts alleged by the Applicant were to be accepted at their highest” (respondents’ submissions (RS) at [22(f)]). In short, there is no basis in law whatsoever identified for the attempt to attribute responsibility to the respondents for the actions of the so-called “squatter”.
51 Finally, the applicant has no reasonable prospects of success in obtaining declarations to the effect that the respondents engaged in misleading or deceptive conduct contrary to s 18 of the ACL. As the respondents submit:
a. [t]he manner in which the alleged unconscionable or other conduct of the Respondents is said to be misleading or deceptive is not pleaded, or otherwise discernible on the face of the Originating Application or [statement of claim];
b. [t]he identity of the person(s) who were misled or deceived (or were likely to be mislead [sic] or deceived) is not pleaded;
c. [p]utting the manner of pleading to one side, none of the conduct attributed to the Respondents in the Originating Application or [statement of claim] is capable of meeting the elements of ‘misleading or deceptive conduct’ under the ACL.
(RS at [23].)
5.3 Damages and other relief sought
52 It follows from my conclusion that the allegations of unconscionable conduct and misleading and deceptive conduct lack any reasonable prospects of success, that the applicant has not established the existence of any reasonable cause of action pursuant to which an award of damages could be made. Equally, other ancillary relief, such as the misconceived application for an order that the applicant’s mother be joined as an applicant “as in [a] class action”, must also inevitably fail.
5.4 Further allegations made by the applicant in his submissions
53 There are a number of allegations made by the applicant in his submissions in response to the respondents’ interlocutory application including:
(1) that the second respondent acted “in wilful breach of their own contract with the Applicant made during [NCAT] made by one specific [unnamed] employee of Second respondent (AGENT-M)”;
(2) Agent-M “incited or conspired with another to cause Applicant unlawful harm, with a person outside of Second respondent’s organisation, giving rise to the right of Applicant to seek the joinder of a new party, AGENT-M as a Third respondent”;
(3) the second respondent had “wilfully mislead court” in its genuine steps statement including in asserting that the proceedings stemmed from orders made by NCAT with the applicant’s consent;
(4) the evidence filed by the second respondent “proves additional causes of action against First respondent” of “stalking” by the second respondent;
(5) the respondents joined in an “unlawful conspiracy” to infringe s 25 of the DDA and/or to “pervert the course of justice and due administration of law”; and
(6) the respondents jointly engaged in an “unlawful conspiracy” to pervert the course of justice by infringing the applicant’s right to quiet enjoyment by allowing a squatter on the property.
54 Each of these allegations is irrelevant as they do not deal with matters raised by Mr Hall in his amended originating application or amended statement of claim. Furthermore, with respect to the so-called Agent-M, there is no point in seeking to join a third party to proceedings which have no prospects of success. Moreover, with respect to the alleged breach of the applicant’s right to quiet enjoyment, by the applicant’s own admission, he invited the so-called “squatter”, who was an acquaintance of his, onto the property. Finally, these allegations do not rise beyond the level of bare assertion, lack foundation in any evidence, and are scandalous in nature. In short, they ought not to have been made. The same equally applies with respect to the bald assertion that unidentified court registry staff and I “conspired” to pervert the course of justice.
55 Mr Hall also takes issue with certain evidence filed by the respondents on its merits. For example, Mr Hall contends that the first respondent should have known that the applicant was in receipt of a disability pension. However, it is unnecessary and inappropriate to determine any such disputed questions of fact on the applications for summary dismissal. The proceedings have no merit for the reasons I have earlier given, irrespective of whether any of the factual matters alleged by the respondents with which Mr Hall takes issue were decided in his favour.
56 Finally, Mr Hall attacks the respondents’ interlocutory application on the basis that it is “vexatious”, “consists of scandalous misleading or deceptive, diversions from the central cause of action”, failed to identify any reasonable and logical grounds to support their interlocutory case, “is otherwise an abuse of the process of the Court in that it can’t possibly succeed in relation to Applicant’s originating application which consists of the Form 15 and Form 17; neither can be reasonably viewed or considered in isolation from each other”. Contrary to these assertions, I consider that the respondents’ interlocutory application was properly made and must be upheld for the reasons I have already given.
6. THE APPLICANT’S APPLICATION FOR SUMMARY JUDGMENT
57 As I have earlier mentioned, Mr Hall’s application for summary judgment, which was opposed, was not supported by any affidavit.
58 First, while Mr Hall relied upon the fact that the respondents had not filed a defence, that does not establish that the respondents have no reasonable prospects of defending the proceedings. Both respondents are actively defending the proceedings. The filing of a defence was effectively deferred pending the outcome of the respondents’ application for summary dismissal, thereby minimising the potential for wasted costs in circumstances where the respondents alleged that, even taken at its highest, Mr Hall’s application for relief could not reasonably succeed. I also note that the respondents made it clear that they would essentially raise the matters contained in their interlocutory application for summary dismissal as a defence to the originating application and, therefore, they had effectively already disclosed the substance of their defence (respondents’ reply/response submissions (RRRS) at [21]).
59 Secondly, subject to a small number of exceptions, most of the matters raised by Mr Hall in support of his application for summary judgment were relied upon by him in the context of considering the respondents’ interlocutory application for summary dismissal, namely, the alleged conspiracy to pervert the course of justice, the allegations that the respondents are in breach of the ACL and s 25 of the DDA, and the prospect of joining additional parties. I have already found that these contentions have no merit for the reasons earlier set out. Manifestly, therefore, they do not establish that the respondents have no reasonable prospects of defending the proceedings.
60 It follows that Mr Hall’s application for summary judgment should be dismissed.
7. THE RESPONDENTS’ APPLICATION FOR INDEMNITY COSTS
61 As the respondents have been wholly successful in their application for summary dismissal, and the applicant wholly unsuccessful in his application for summary judgment, there is no basis on which the respondent should be denied their legal costs. Normally, costs are calculated on what is described as a “party and party basis”, which means that the unsuccessful party must pay a portion of the successful party’s legal costs, as agreed or assessed by an independent costs assessor.
62 However, by their interlocutory application, the respondents seek indemnity costs against the applicant. That application is not made under pt 25 of the FCR, r 25.01(1) of which provides that “[a] party (the offeror) may make an offer to compromise by serving a notice, in accordance with Form 45, on another party (the offeree)” (emphasis in original). However, a party may rely upon a Calderbank offer notwithstanding that the party has not complied with the procedure set out in pt 25: Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 at [6] (Kenny J) (by analogy).
7.2 Facts relied upon in support of the application for indemnity costs
63 The relevant facts relied upon by the respondents may be summarised as follows. First, on 28 July 2021 at 11:40am, the solicitors for the respondents wrote by email to Mr Hall (Foster affidavit at annexures RF-1 and RF-2). The attached letter explained in detail the reasons why, in the respondents’ solicitors’ contention, none of Mr Hall’s claims could succeed. It also advised that the respondents would consent to a notice of discontinuance being filed “on condition that the proceedings be discontinued with no order as to costs, provided that it is filed prior to 4:00pm on Wednesday 4 August 2021”. It also advised Mr Hall that, if the offer made in the letter was not accepted, an application would be made by the respondents seeking summary dismissal of the proceeding and an order for indemnity costs against Mr Hall, relying upon the contents of the letter. The letter concluded by explaining that “[t]hese matters are very serious, and it is important you seek advice from a qualified lawyer prior to accepting or rejecting our offer to discontinue the proceedings with no order as to costs.” The same recommendation to seek legal advice in relation to the contents of the letter was reiterated in the covering email to the applicant of the same date. To assist the applicant, a draft notice of discontinuance was enclosed.
64 Mr Hall replied to the letter by email on the same day at 8:14pm in the following terms:
Hello Robert Foster,
Have you submitted your Form 10 to the court? I would imagine writing your lengthy letter to me to give me legal advice as a dual spy so to speak, would be construed by the court as “taking any other steps” I’d imagine that to be the matter of the circumstance.
I draw your attention to the paragraph if [sic] the Form 15 Originating application:
“To the Respondents… You must file a notice of address for service (Form 10) in the Registry before attending Court or taking any other steps in the proceeding.”
Thank you.
(Foster affidavit at annexure RF-3; emphasis in original.)
65 The solicitors for the respondents replied by email that evening at 8:49pm advising that the notice of address for service would be filed at an appropriate time and again strongly suggested that the applicant obtain legal advice in relation to the matter (Foster affidavit at annexure RF-4).
66 No further communication from or on behalf of Mr Hall in response to the respondents’ offer was received.
67 Subsequently on 9 August 2021 after the respondents’ offer had expired, the respondents each filed a notice of address for service and, on 25 August 2021, the second respondent filed the interlocutory application for summary dismissal.
68 In support of the application for indemnity costs, the respondents submitted that:
(1) the originating application is devoid of merit and makes fanciful claims;
(2) the applicant was given early notice of the respondents’ intention to file the application for summary dismissal, the basis on which the application would be made, and the difficulties with the applicant’s case;
(3) the respondents offered at an early stage of the proceeding before filing a notice of address for service to have the matter discontinued with no order as to costs and urged the applicant to seek legal advice in relation to the offer;
(4) the applicant was given express notice that, in the event that the offer was rejected, the respondents would apply for summary dismissal and seek indemnity costs;
(5) the respondents repeated their request for indemnity costs at both case management hearings following the filing of their application for summary dismissal; and
(6) the respondents have been put to significant expense to bring the summary dismissal application and respond to the proceedings generally, which has included “outlandish and unsupportable claims by the Applicant, including allegations of criminal conduct and overarching conspiracies at a high level” (RRRS at [36]).
69 In addition, as the respondents note, at the first case management hearing of the matter on 25 August 2021, I urged upon the applicant the importance of obtaining independent legal advice. As only the applicant’s mother attended that hearing, I also included a notation on the orders made on that day encouraging the applicant to seek legal advice and I set the date for the next case management hearing for 19 October 2021 in part in order to afford the applicant that opportunity (as also noted on the orders).
70 Mr Hall opposes the application for indemnity costs, alleging that the second respondent has misrepresented the facts, and makes submissions regarding a written offer made by him to the respondents which was not accepted. However, despite being expressly afforded the opportunity by the timetabling orders made on 19 October 2021 to file evidence in response to the respondents’ interlocutory application as well as in support of his own, the applicant chose not to do so. As such, there is no evidence concerning the making of any such offer.
71 Nonetheless it is apparent from the respondents’ submissions that they do not dispute that an offer in open correspondence was made by Mr Hall dated 25 August 2021, which they treated as having been made “without prejudice” until Mr Hall sought to rely upon the offer in his submissions. It also does not appear to be contentious that Mr Hall’s offer requested payment to him of approximately $20,000 from the respondent as a term of concluding consent orders presumably to bring the proceedings to an end (RRRS at [11]). However, I have not given any offer by Mr Hall to discontinue the proceedings on payment of a sum to him any weight in determining whether an order for indemnity costs should be made in favour of the respondents, in circumstances where Mr Hall’s application had, as I have found, no reasonable prospects of success and was indeed bound to fail.
7.4 An order for indemnity costs should be made
72 The principles which guide the Court in the exercise of its discretion to award indemnity costs are well established and identified by Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801. As Sheppard J explained at 233, there should be “some special or unusual feature in the case to justify the Court in departing from the ordinary practice” of awarding costs on a party and party basis. Examples of circumstances identified by Sheppard J which may justify an order for indemnity costs include (at 233):
the fact that the proceedings were commenced or continued for some ulterior motive … or in wilful disregard of known facts or clearly established law … the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions …
73 As a further example, indemnity costs may also be awarded where a party’s failure to accept an offer in all of the circumstances warrants departure from the ordinary rules as to costs, applying r 25.01 of the FCR or the common law principles concerning so-called “Calderbank offers”: Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 at [18]–[20] (Warren CJ, Maxwell P and Harper AJA); Brymount Pty Ltd t/as Watson Toyota v Cummins (No 2) [2005] NSWCA 69 at [12]–[13] (Beazley JA). However, there is significant support in the authorities for the proposition that an offer of compromise on the basis simply that there be no order as to costs is not a genuine compromise for the purposes of r 25.01(1) or the Calderbank principle: Wills v Chief Executive Officer of the Australian Skills Quality Authority (Costs) [2022] FCAFC 43 at [30]–[32] (the Court). In this case, it is unnecessary for me to embark upon this issue as I do not understand the respondents to submit that indemnity costs should be awarded on either of these bases. Rather the respondents rely upon the offer to resolve the matter without costs and the accompanying explanation of the difficulties in the applicant’s case as a relevant consideration, among others, in determining whether indemnity costs should be awarded.
74 In my view, there are a number of special features which render this case an appropriate one for an order to be made awarding costs on an indemnity basis to be paid by Mr Hall to the respondents. The high level claims made in the amended originating application and amended statement of claim were utterly without merit and in apparent disregard of the fact that the orders made by NCAT for him to vacate the property and end the tenancy were made with his consent. Allegations such as the attempt to fix liability on the respondents for a criminal assault allegedly undertaken by, on Mr Hall’s own admission, an acquaintance of Mr Hall who he had asked to cohabitate, were obviously baseless. Moreover, Mr Hall not only persisted in his claims after the respondents’ offer was made to compromise the matter with no order as to costs at an early stage of the proceedings, accompanied by a detailed letter from the respondents’ legal representatives identifying manifest deficiencies in his claims, but in his submissions he also sought to expand his claims to include further vexatious and frivolous allegations against the respondents.
75 Mr Hall’s interlocutory application should be dismissed. The amended originating application should be summarily dismissed on the ground that it lacks any reasonable prospects of success. In addition, Mr Hall is to pay indemnity costs to the respondents.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry. |
Associate:
