Federal Court of Australia

Kondratenko v Kennards Storage Management Pty Ltd [2024] FCA 913

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1) of the Federal Court Rules 2011 (Cth), judgment be entered in favour of the respondents in relation to the whole of the proceeding.

2.    Within 7 days of the date of this order, the applicant advise the first respondent and its solicitor of a date, a time during business hours and a location within 15 kilometres of 1 Olympic Circuit, Southport Queensland that his remaining possessions may be returned to him.

3.    If the applicant does not comply with order 2, the first respondent may dispose of the applicant’s remaining possessions in the manner provided for in the Storage Agreement dated 27 October 2023.

4.    The applicant pay the respondents’ costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MEAGHER J

introduction

1    Before the Court is an interlocutory application filed by the first respondent, Kennards Storage Management Pty Ltd, and the second respondent, Mr Sam Kennard as the Chief Executive Officer of the first respondent (respondents) in which summary judgment is sought pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1) of the Federal Court Rules 2011 (Cth).

2    The respondents bring this application on the basis that the proceeding commenced by the applicant is frivolous and vexatious, discloses no reasonable cause of action, constitutes an abuse of process and is one which the applicant has no reasonable prospect of successfully prosecuting. The respondents also seek orders to facilitate the return of the applicant’s possessions to him.

3    For the reasons that follow, the interlocutory application is allowed.

background

4    On or around 27 October 2023, the applicant entered into a storage space hire agreement with the first respondent in which the first respondent agreed to provide a storage space to the applicant (Agreement). For present purposes, it is useful to set out the following parts of the contract:

•    Cost incurred by the Operator for return cheque failed CC/DD, or security callout event caused by the Storer will be on charged to the Storer.

…

2.1 In consideration of the payments of the Monthly Storage Payments to be made by the Storer under this Agreement, the Operator will provide the Storer with use of the Space for the purpose of storing goods in the Space in accordance with this Agreement.

…

3.5 The Storer is also liable for and must pay the Operator’s reasonable actual cost incurred as a result of:

…

(c) any security call-out caused by the Storer accessing the Space or the Facility; and

…

8. TERMINATION OF THE AGREEMENT BY NOTICE

8.1 The Storer may terminate the Agreement by giving the Operator at least 1 business day’s written notice, and the Operator may terminate the Agreement by giving the Storer 14 days’ written notice.

…

8.3 If after 7 days from the date of termination under this clause any Goods remain within the Space or the Facility, then those Goods will be deemed abandoned by the Storer and may be seized by the Operator and sold or disposed of in accordance with clauses 9.2 or 10.

5    On 27 November 2023, following a declined automated credit card payment, the first respondent’s Southport office sent the applicant an email attaching a statement of account (First Statement). Ms Kellie Robley, Operations Manager of the first respondent, deposes that the First Statement was automatically generated by a computer system and incomplete. The First Statement had seven entries, the last of which was a ‘LockCut + NewLock’ charge of $25.00 on 17 November 2023. The First Statement also included a charge of $85.00 with the description of ‘Security Call Out’ on 4 November 2023.

6    On the same day, the applicant emailed the first respondent expressing his concern that he had been informed that the security callout fee was $65.00, rather than $85.00 as appeared on the First Statement. He also informed the first respondent that he had already paid the $25.00 lock cutting and new lock charge and attached a receipt of the payment.

7    On 5 December 2023, the applicant attended the first respondent’s facility and deposes as to the following exchanges he had with front desk staff:

9. Lisa at the front office firstly started by telling me they never received the email in their system - which is quite strange because every email after this was received without an issue and I have a record of my original email being sent - I believe this is another attempt to muddy the waters, bully me and attempt to agitate me in my vulnerable position.

10. After I showed them the issue and explained that I have a receipt for the lock cutting fee on the 17th November - Lisa at the front office in yet another pattern of bullying behaviour - rather than accepting accountability for their mistake - attempted to change the story and instead insisted that the statement was not "incorrect" - as I had stated but rather that the statement was "incomplete". This did not make sense to me - as an invoice or charge that is attempted on a card which results in a higher amount being charged for an item that had all ready [sic] been purchased would in essence be an incorrect charge and any related statements would be incorrect either - the attempt to change the story and claim that the system never made a mistake was yet another bullying attempt of arrogance towards the vulnerable by Kennards that shows how far they would be willing to go to not accept accountability for their mistakes - the conversation between Lisa, her staff member and myself lasted for 40 minutes - as they continued to try to prove to me that it was not in fact the system that was incorrect but rather that the statement was simply incomplete.

11. After 40 minutes of me explaining that the statement and charge was INCORRECT due to the fact that I had all ready [sic] paid for the lock cutting fee - and after Lisa and the other staff member realised I would not back down or be intimidated by their fake story – they resorted to keeping me locked out of my storage space and then THREATENING TO CALL THE POLICE. This is despite the fact that I had made no threat to them nor did I raise my voice - it is very clear they knew that as a homeless person this would be a useful tactic to get me to dissipate and allow them to continue their pattern of bullying – I left the office without being able to get access to my items and quite agitated in the fact that a simple truth had been systematically distorted and the full weight of Kennards corporate bullying tactics being brought down upon me simply for pointing out a simple fact that I had been double charged for the lock cutting fee.

8    On that same day, the first respondent sent the applicant an email attaching an updated statement of account (Second Statement). The Second Statement included three entries which had been incorrectly omitted from the First Statement, as well as three further transactions which occurred after 27 November 2023. It is relevant to note that the erroneously omitted entries were recorded as follows:

(1)    On 17 November 2023, a payment of $25.000 described as ‘EFT-POS’;

(2)    On 27 November 2023, a charge of $119.00 described as ‘Rental Fee Unit J041’; and

(3)    On 27 November 2023, a charge of $12.50 described as ‘Protection Cover J041’.

9    The Second Statement notably records that on 17 November 2023, the applicant paid $25.00 which is described as an ‘EFT-POS’ transaction.

10    In the email of 5 December 2023, the first respondent acknowledged that the lock cutting and new lock fee had already been paid by the applicant, removed charges for protection cover and the late fee and apologised for the First Statement, which they asserted was an incomplete, rather than incorrect, statement of accounts.

11    The applicant replied on 5 December 2023 relevantly stating:

…there are still crucial issues that need to be addressed for a complete resolution.

Clarification on "Incomplete" vs. "Incorrect" Statements: The initial statement dated November 27th showed a total due of $235.40, which included charges that were not accurate. Your response suggests this statement was "incomplete" rather than "incorrect". However, an incomplete statement that leads to a higher charge is, in effect, incorrect. It's important for Kennards to acknowledge this distinction. The issue is not merely about the inability to alter payment receipt dates or amounts but about the integrity and accuracy of the billing process.

Narrative and Accountability: The insistence that the statement was merely incomplete and not incorrect appears to be an attempt to avoid accountability. This approach is concerning as it suggests a reluctance to acknowledge and rectify mistakes. Transparency and accountability are crucial in customer relations, and it's vital that Kennards acknowledges if an error was made.

Clarification on Charges and Late Fees: Given the discrepancies in the billing, the late fee should not apply. It's unfair to penalize a customer for late payment when the billing information provided is not accurate. An official clarification and adjustment on this point are necessary.

Request for Apology and Rationale: I seek a clear and straightforward apology for the confusion and distress caused by this situation, along with a rational explanation as to why the original statement was labeled [sic] as "incomplete" instead of "incorrect." This will help in understanding Kennards’ perspective and moving towards resolution.

Information on Access Post-Payment: Upon settling the accurate and agreed-upon amount, I would like to know the timeline for regaining access to my storage unit. The inconvenience caused by this situation has been significant.

Clarification on the $85 Callout Fee: Please confirm that this fee was not mentioned in the original agreement or in any prior communication. While I am willing to pay the agreed-upon charges, clarity on this matter is important for future interactions.

This issue is not about the monetary aspect but about the principle of fair and transparent business practices. Your comprehensive response to these points will be greatly appreciated and will guide my next steps, including the payment of the revised charges.

12    On 7 December 2023, the first respondent sent an email to the applicant stating that, with respect to the purported overcharging of the security call out, it will be applying a $20.00 credit to the applicant’s account. Further, the first respondent noted that they have removed the $15.00 late fee charge on the applicant’s account.

13    Ms Robley deposes that the applicant has therefore not paid either of what she describes as the “alleged overcharges”.

14    On 21 December 2023, the first respondent gave notice to the applicant that his storage agreement was being terminated. He was requested to collect his items from the storage space by 4 January 2023, being the effective date of the termination. The first respondent also informed the applicant that he would not be required to pay any of the outstanding charges on his account. On 17 January 2024, the outstanding fees on the applicant’s account were written off.

15    On 6 February 2024, as the applicant had not collected his items from the storage unit, the first respondent sought to deliver the goods to the applicant’s location. The applicant did not provide an address to facilitate the delivery of his goods.

16    The matter is commenced by an originating application filed on 9 January 2024 whereby the applicant, who appeared in person, detailed the following claims:

Applicant claims for damages due to incorrect billing and breaches of the Competition and Consumer Act 2010 by Kennards Self Storage Pty. Ltd. and Sam Kennard, including misleading conduct and failure to comply with contractual terms.

1. Rental Agreement and Charges

1.1 The Applicant is a client of Kennards Self Storage at Southport, having rented a storage space for $119 per month. [Ref: A1 - Rental Agreement]

2. Incorrect Billing Statement and Previous Payment

2.1 On 27th November, Kennards emailed an incorrect billing statement, including a $25 lock cutting fee previously paid on 17th November with a receipt. [Ref: B1 - Incorrect Billing Statement, B2 - Receipt for Lock Cutting Fee)

2.2 Additionally, the statement included an $85 security callout fee, not stipulated in the original agreement. [Ref: A1 - Rental Agreement, B1 - Incorrect Billing Statement]

3. Communication and Response to Billing Error

3.1 The Applicant responded on the same day, 27th November, highlighting the billing error. Kennards did not acknowledge this communication. [Ref: C1 – Email Correspondence]

4. Access Blockage and In-Person Communication

4.1 Subsequently, access to the storage unit was unjustly blocked, with no prior written notification.

4.2 Upon addressing this in person on 5th December, Kennards staff insisted the statement was incomplete, not incorrect, and refused to acknowledge the error.

[Ref: D1 - Altered Statement with Markings]

5. Threat of Police Involvement and Emotional Impact

5.1 The staffs [sic] refusal to acknowledge the error escalated to threats of police involvement, causing anger, fear, and recalling past adverse interactions with law enforcement. The Applicant's known homeless status exacerbated these feelings.

Internal Investigation and Lack of Accountability

6.1 Operations Manager Kellie conducted an internal investigation, maintaining the stance of no billing errors. [Ref: F1 - Email from Operations Manager]

6. Misinformation and Contract Breach on Unit Access

7 .1 Verbal misinformation was given about the storage unit lockout period (stated as 5 days, contrary to the contract).

7. Involvement and Endorsement by CEO Sam Kennard

8.1 Sam Kennard, CEO, was included in the email thread and endorsed the company's actions, necessitating his inclusion as a co-defendant. [Ref: H1 - Email Thread with CEO]

8. Deceptive Communication and Termination Notice

9.1 On 6th December, Centre Manager Lisa issued a vacate notice, followed by contradictory communication from Kellie on 7th December denying termination.

[Ref: I1 - Termination Notice, J1 - Contradictory Email]

9. Continued Incorrect Billing and Termination Threats

10.1 Further emails and statements from Kennards continued to show incorrect billing, including unwaived late fees and unadjusted security callout charges. [Ref: K1 - Subsequent Incorrect Statement]

10.2 Continued insistence on incorrect billing led to termination threats, further demonstrating a pattern of deception and bullying. [Ref: L1 - Termination Letter]

10. Damages and Breaches

11.1 The Applicant has suffered mental health damages, fear of returning to the place of rental, difficulty in managing homelessness, and mental anguish due to police threat implications.

11.2 Kennards’ actions constitute a breach of rental terms, consumer law, and deceptive practices.

17    The applicant also made a claim for interlocutory relief as follows:

1.    The Applicant seeks an urgent interlocutory injunction to restrain the Respondent, Kennards Self Storage Pty. Ltd., from removing, disposing of, or interfering with the Applicant's possessions currently stored at their Southport facility.

2.    This relief is sought on the basis of the Applicant's current situation of homelessness, rendering it impossible to secure alternative storage for these possessions. The possessions held at Kennards are not only of material value but also of significant personal importance to the Applicant.

3.    The Applicant asserts that the removal or interference with these possessions would cause irreparable harm and further exacerbate the Applicant's current vulnerable situation.

4.    It is in the interests of justice to grant this injunction, as the balance of convenience favors [sic] the protection of the Applicant's possessions while the dispute is resolved.

5.    The Applicant believes that there is a strong likelihood of success on the merits of the case, as detailed in the attached Statement of Claim, which outlines the deceptive conduct and breaches of consumer law by the Respondent.

18    From what can be ascertained from the material before the Court, the proceeding appears to have arisen from the following claims:

(1)    The $85.00 security call out fee that was charged on 4 November 2023 was incorrectly charged and does not appear on the Agreement. Instead, the fee should have been $65.00.

(2)    The $25.00 lock cutting and new lock fee which appeared on the First Statement was incorrectly charged as the applicant had already made that payment on 17 November 2023.

19    By his affidavit filed on 9 January 2024, the applicant deposes that he is seeking $2 million as compensation for “emotional damages and to hold them accountable”.

20    At the hearing of the application, the respondents read the originating application filed on 9 January 2024, the defence of the first and second respondent both filed on 12 February 2024, the statement of claim filed on 27 February 2024, the respondents’ interlocutory application filed on 12 April 2024, the affidavit of Ms Kellie Robley filed on 12 April 2024, the affidavit of Ms Karen Reardon filed on 12 April 2024 and the respondents’ written submissions filed on 10 May 2024.

legal principles

21    Section 31A of the Act relevantly provides:

31A Summary judgment

…

(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.

(1)    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.

22    Pursuant to r 26.01(1) of the Rules, a party may make an application seeking summary judgment:

26.01    Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b) the proceeding is frivolous or vexatious; or

(c) no reasonable cause of action is disclosed; or

(d) the proceeding is an abuse of the process of the Court; or

(e) the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

23    The power conferred by section 31A of the Act reflects a broadening of the Court’s power to deal with unmeritorious claims. In Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, French CJ and Gummow J stated the following at [24] in respect of the Court’s power to summarily dismiss proceedings on the basis that the pleadings fail to disclose a reasonable cause of action, that the action is frivolous or vexatious or constitutes an abuse of process:

The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this court in Fancourt v Mercantile Credits Ltd said:

“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”

More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:

“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways,51 but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”

There would seem to be little distinction between those approaches and the requirement of a “real” as distinct from “fanciful” prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.

(Citations omitted)

24    Further, in Spencer, Hayne, Crennan, Kiefel and Bell JJ considered the nature of the reasonable prospect of success test at [52]:

Second, effect must be given to the negative admonition in subs (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. It will be necessary to examine further the notion of “no reasonable prospect”. But before undertaking that task, it is important to begin by recognising that the combined effect of subss (2) and (3) is that the enquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

25    In determining whether a proceeding ought to be summarily dismissed, the Court is to have regard to matters of substance, rather than pleading points and form: Shumack v Commonwealth of Australia [2009] FCA 775 at [14]. Further, summary judgment applications are not intended to act as a “mini-trial on the documents” but ought to dispose of the cases “that are not fit for trial at all”: Spencer at [21] (per French CJ and Gummow J), citing Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at 260 – 261 [95].

26    In Pathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65 at [8], Steward J helpfully summarised the principles relating to summary judgment:

(1) the legislative purpose of s 31A is to strengthen “the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”: Second Reading Speech of the Migration Litigation Reform Bill 2005 (Cth);

(2) the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 at 271 [46] per Reeves J.; Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 333 per Burchett, Ryan and Marshall JJ;

(3) assessment of whether a proceeding or a part of a proceeding has no reasonable prospect of success will necessarily require: (i) identification of the cause of action pleaded; (ii) identification of the pleaded facts said to give rise to that cause of action; (iii) a review of the evidence (if any) tendered in support of the claim for judgment; (iv) identification of the defence pleaded; (v) identification of any facts pleaded which are said to give rise to the defence; and (vi) a review of the evidence (if any) tendered in defence of the claim: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at 406 –407 [126] per Gordon J.;

(4) once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or non-particularised denials will be insufficient to defeat the motion; Jefferson Ford Pty Ltd at 407 [127] per Gordon J. citing Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [22] per French J. (as his Honour then was);

(5) summary disposition of a proceeding is authorised on a variety of bases. It will, for example and without limitation, be appropriate in a case: (i) in which the pleadings disclose no reasonable cause of action and their deficiency is incurable; (ii) in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and in any case which might be propounded by permissible amendment; or (iii) that is “frivolous or vexatious or an abuse of process”: Spencer v Commonwealth (2010) 241 CLR 118 at 131 [22] per French CJ and Gummow J.;

(6) the determination of a summary dismissal application does not require a mini-trial based upon incomplete evidence to decide whether a proceeding is 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: Cassimatis at 271 [46] per Reeves J.; and

(7) an application for summary dismissal is likely to succeed if the moving party is able to demonstrate that the applicant’s success in the proceeding 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”: Cassimatis at 272 [47] per Reeves J.

consideration

27    The respondents advanced a number of grounds in support of their application, including that the proceeding is frivolous and vexatious, discloses no reasonable cause of action, is an abuse of process and that the applicant has no reasonable prospect of successfully prosecuting the proceeding.

28    It should be noted at the outset that the applicant did not make any submissions responsive to the respondents’ submissions. Instead, he maintained that he required the surname of Lisa, who is the Centre Manager at the first respondent’s Southport facility, as well as seeking that a recording be played to prove that he is telling the truth. However, as correctly submitted by the respondents, the Court is able to take the applicant’s evidence at its highest in summary judgment applications: Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15 at [179] (per Mansfield and Gilmour JJ). For the purpose of this summary judgment application, I have taken the applicant’s evidence at its highest, that is, I have treated the evidence put before the Court as being true, without requiring the applicant to prove its accuracy.

29    First, as to the submission that the proceeding is vexatious, harassing or oppressive, the respondents referred to New Asian Shipping Co Ltd v Omar Farooq Sultan [2005] QSC 228 wherein Wilson J, at [18], cited with approval Re Cameron [1996] 2 Qd R 218 at 220 (per Fitzgerald P):

…Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court’s practices, procedures and rulings, persistent attempts to use the court’s processes to circumvent its decisions or other abuse of process, the wastage of public resources and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis.

(Citations omitted)

30    The respondents submitted that the applicant’s motives in bringing this application are vindicative, frivolous and vexatious. To that end, the respondents referred to various statements made by the applicant in relation to the claim, including that the “issue is not about the monetary aspect but about the principle of fair and transparent business practices”, that it is “a matter of principle and accountability” and that the applicant is merely seeking to obtain “an acknowledgment of the truth”. The respondents also referred to an email that the applicant sent to the second respondent on 20 December 2023 in which he threatened to bring a $2 million claim if the second respondent “persist[s] in [his] deceptions, games and tricks against the most vulnerable people in society” and does not issue an apology to the applicant. Further, the respondents referred to the applicant’s genuine steps statement in which the applicant states that he has sent SMS messages to the second respondent indicating his intention to commence a claim against him.

31    A “vexatious” matter may be described as one which lacks foundation or “brought for an ulterior and collateral purpose”: Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728 at [9]. The terms “oppressive” and “vexatious” may also relate to proceedings which are “seriously and unfairly burdensome, prejudicial or damaging” or which produce “serious and unjustified trouble and harassment”: Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21 at 502. The term “frivolous” refers to proceedings which are “without substance or groundless or fanciful”: Crocker at [9], citing Pickering v Centrelink [2008] FCA 561 at [27].

32    I am satisfied that the applicant’s claims are vexatious. It appears that the applicant has commenced proceedings in the Court in circumstances where no cause of action exists, and the applicant is seeking that the respondents merely acknowledge wrongdoing on “principle”. So much is clear from the applicant’s evidence, which includes that he has to “take on a whole billion dollar behemoth just to get an acknowledgement of the truth that is quite clear to anyone”.

33    Secondly, the respondents submitted that the applicant’s claim discloses no reasonable cause of action. They contend that the statement of claim fails to disclose any cause of action, noting that any claims which may be able to be found in the originating application are not pleaded nor particularised.

34    In this case, it is readily apparent that the statement of claim fails to disclose a reasonable cause of action. Instead of pleading material facts and stating the case which must be met (Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 at 286), the pleading discloses no cause of action while making assertions as to the damage suffered by the applicant. Such assertions include that he has suffered “significant personal and financial harm”, “severe psychological distress” and “feelings of worthlessness and isolation” as a result of the respondents’ conduct, which he also alleges “contributed to the [a]pplicant’s further impoverishment and exacerbated his fear and trauma associated with homelessness”. There is no pleading of material facts or particularisation with respect to any identifiable cause of action.

35    Looking to the material before the Court, a cause of action remains unascertainable. As noted by the respondents, the originating application refers to a claim of incorrect billing, misleading conduct pursuant to the Competition and Consumer Act 2010 (Cth) and a “failure to comply with contractual terms”. Further, in his written submissions, the applicant referred to misleading and deceptive conduct pursuant to ss 18 and 29 of the Australian Consumer Law (ACL), as contained in Schedule 2 of the Competition and Consumer Act and submitted that the first respondent’s billing practices are unjust. However, there is no particularisation of this claim nor is it pleaded in such a way as to allow the respondents to know with sufficient clarity what case they are to meet. I do not consider that this deficiency is curable as nothing on the material before the Court discloses a reasonable cause of action: Spencer at [22]. Any claim of being overcharged has been discharged by way of the first respondent crediting $20.00 in respect of the security call out fee. Further, all outstanding fees of the applicant’s account have been waived. There is no evidence that has been adduced to support the claim that the respondents’ billing practices are contrary to the ACL, as is sought by way of declaration in the applicant’s written submissions. Nor is there any evidence before the Court that the first respondent’s handling of the applicant’s complaint was unlawful or inappropriate as submitted by the applicant. To the contrary, the first respondent has credited to the applicant the amounts that he alleges he has been overcharged and apologised for the First Statement.

36    Thirdly, the respondents advanced the argument that the applicant’s claim is an abuse of process for the same reasons they submitted that the proceedings are frivolous and vexatious as well as fail to disclose a reasonable cause of action. In that regard, they referred to the observations of Adamson J in Birch v National Australia Bank Ltd; Campbell v Illawarra Gold Club (No 5) [2014] NSWSC 949 at [72]:

The authorities refer to the general entitlement of a party to litigation to have his or her case determined at trial as long as there is a triable issue: General Steels Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130 per Barwick CJ. Summary dismissal or summary judgment is not ordered lightly. Nonetheless, the court must be alert to abuse of its processes and the capacity of some litigants to exploit their right to natural justice and use the processes of the court to cause delay and prejudice. ...

37    In Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 at [10], the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) stated the following as to the principles of abuse of process:

Both submissions were advanced under the rubric of “abuse of process” and sought to engage the well-established rule that in both civil and criminal proceedings “Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process”. As four members of this court said in Batistatos v Roads and Traffic Authority (NSW), “[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories”. In Ridgeway v R, Gaudron J stated that the power extended to proceedings that are “instituted for an improper purpose”, “seriously and unfairly burdensome, prejudicial or damaging” and “productive of serious and unjustified trouble and harassment”. In Williams v Spautz, the plurality distinguished between “abuse of process in the sense of proceedings instituted and maintained for an improper purpose” and “abuse of process [that] precluded a fair trial”. In Rogers v R, McHugh J concluded that, although the categories of abuse of process are not closed, many such cases can be identified as falling into one of three categories: “(1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute”.

(Citations omitted)

38    A proceeding may constitute an abuse of process where it is readily apparent that it is “foredoomed to fail”: Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 at 393. I am satisfied that this proceeding is an abuse of process on the basis that the applicant has sought to commence proceedings which are frivolous, vexatious and without cause of action for an improper purpose. The applicant’s claim cannot be prefaced on any alleged overcharges as the evidence before the Court is that any alleged overcharge has been credited. Instead, the applicant has commenced proceedings which are manifestly groundless for the purpose of obtaining “the acknowledgement of truth”, which seemingly relates to the distinction between an “incomplete” or “incorrect” statement. For completeness, I note that the first respondent apologised for the provision of the First Statement on 5 December 2023. In circumstances where the proceedings are without foundation and commenced for an improper purpose, I consider that the proceedings constitute an abuse of process of the Court.

39    Fourthly, the respondents submitted that the applicant has no reasonable prospect of successfully prosecuting the proceedings given that the claim discloses no cause of action. The respondents contended, and I accept, that this argument is particularly relevant with respect to the second respondent, who is not a party to the storage agreement and who has been joined on the basis that he was in the email thread and “endorsed the company’s actions”. For reasons outlined in the preceding paragraphs, even taking the applicant’s case at its highest, the prospect of successfully prosecuting this proceeding is fanciful and the claim ought not go to trial.

40    With respect to the claim of $2 million on the basis of “emotional damages”, the respondents submitted that the applicant is required to demonstrate that he has suffered from a psychological or psychiatric illness as a foreseeable consequence of the alleged unlawful conduct of the respondents. In any event, the respondents correctly submitted that any such claim could only be made pursuant to the Personal Injuries Proceedings Act 2002 (Qld). No such claim has been made in this case.

41    In their interlocutory application, the respondents also seek the following orders:

2. Within 7 days of the date of this order, the Applicant advise the First Respondent and its solicitor of a date, a time during business hours and a location within 15 kilometre of 1 Olympic Circuit, Southport Queensland that his remaining possessions may be returned to him.

3. If the Applicant does not comply with order 2, the First Respondent may dispose of the Applicant’s remaining possessions in the manner provided for in the Storage Agreement dated 27 October 2023.

42    These orders are sought on the basis that the applicant states that the possessions held with the first respondent are “not only of material value but also of significant personal importance” to him. The first respondent has indicated their willingness to deliver the applicant’s goods to him if an appropriate location can be provided. These orders as proposed are appropriate and address the interlocutory relief sought in the applicant’s originating application for the protection of his possessions until the resolution of the dispute. The orders ought to be made to facilitate the delivery of the applicant’s goods should he provide the appropriate details for delivery.

conclusion

43    For the above reasons, I am satisfied that the applicant does not have a reasonable prospect of successfully prosecuting these proceedings, no reasonable cause of action is disclosed, the proceeding is vexatious and frivolous and is one which constitutes an abuse of process. The respondents’ interlocutory application is allowed. I consider it appropriate that orders be made in the form proposed by the applicant, including that the goods be delivered to the applicant should he provide an appropriate address for delivery. There is no reason why costs should not follow the event.

Associate:

Dated:    15 August 2024