Maxwell-Smith v S & E Hall Pty Ltd [2002] FCA 25 (25 January 2002)

Last Updated: 31 January 2002

FEDERAL COURT OF AUSTRALIA

Maxwell-Smith v S & E Hall Pty Ltd [2002] FCA 25

PRACTICE AND PROCEDURE - issue estoppel and res judicata - applications under Trade Practices Act 1974 in relation to building dispute - whether applications seek to relitigate matters decided by Consumer Claims Tribunal and Supreme Court - elements of Federal Court proceedings have been determined between parties - motion for dismissal under Order 20 Rule 2 allowed.

BANKRUPTCY - applications to set aside bankruptcy notice dismissed.

Bankruptcy Act 1966 (Cth)

Consumer Claims Tribunals Act 1976 (NSW)

Trade Practices Act 1974 (Cth) s51AB, s52

Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589 referred to and applied

Henderson v Henderson (1843) 5 Hare 100; 67 ER 313 referred to

Wentworth v Rogers (1986) 6 NSWLR 534 referred to

Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 referred to

Bright v Bright [1954] P 270 referred to

Spencer Bower, Turner and Handley Res Judicata (3^rd Ed) par [182]

Eugene and Inge Maxwell Smith v S & E Hall Pty Ltd

N895, N896, N7225 and N7226 of 2001

ALLSOP J

SYDNEY

25 JANUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7225 and N7226 of 2001

BETWEEN:	EUGENE AND INGE MAXWELL-SMITH APPLICANTS
AND:	S & E HALL PTY LTD RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	25 JANUARY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the applications in the matters numbered N7225 and N7226 of 2001 filed 4 May 2001 seeking to set aside the bankruptcy notice dated 26 March 2001 and addressed to the applicants be dismissed; and

2. the applicants (Mr and Mrs Maxwell-Smith) pay the costs of the respondent to the applications.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N895 and N896 of 2001

BETWEEN:	EUGENE AND INGE MAXWELL-SMITH APPLICANTS
AND:	S & E HALL PTY LTD RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	25 JANUARY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the applications in matters numbered N895 and N896 of 2001 be dismissed; and

2. the applicants to the proceedings (Mr and Mrs Maxwell-Smith) pay the costs of the respondent to the proceedings, including the costs of the motions brought by the respondent for orders under Order 20 Rule 2.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N895 and N896 of 2001

BETWEEN:	EUGENE AND INGE MAXWELL-SMITH APPLICANTS
AND:	S & E HALL PTY LTD RESPONDENT

JUDGE:	ALLSOP J
DATE:	25 JANUARY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 There are a number of matters before me for resolution. These matters have a relationship to each other.

2 On 26 March 2001 a bankruptcy notice was issued by the Official Receiver for the Bankruptcy District of New South Wales and the Australian Capital Territory at the request of S & E Hall Pty Limited (the Creditor) against Mr and Mrs Maxwell-Smith as the debtor. The claimed debt of the Creditor owed by Mr and Mrs Maxwell-Smith was $13,757.94 which was derived from a judgment debt of the Local Court (Civil Claims) of $11,288.12 plus costs and interest. The debt of $11,282.12 arose, in circumstances to which I will come, from an assessment of costs of a proceeding in the Supreme Court of New South Wales. The certificate as to determination of costs under the Legal Profession Act 1987 (NSW) was issued on 13 May 1999.

3 By applications filed 4 May 2001 Mr and Mrs Maxwell-Smith seek to set aside the bankruptcy notice under subs 41(7) of the Bankruptcy Act 1966 (Cth) (the Act).

4 The bankruptcy notice was served on Mr and Mrs Maxwell-Smith in April 2001. Within the time set out in the bankruptcy notice for compliance, Mr and Mrs Maxwell-Smith filed in this Court their applications to set aside the notice. Those applications were given separate file numbers (N7225 and N7226 of 2001). The applications and the supporting evidence in each are relevantly identical.

5 Each of Mr and Mrs Maxwell-Smith has commenced proceedings in the Court claiming damages of $105,000 and costs against the Creditor. Again those proceedings, commenced by way of application and statement of claim, were given separate file numbers (N895 and N896 of 2001), but are relevantly identical. Those proceedings were filed on 4 June 2001. The Maxwell-Smiths have filed evidence in chief in support of the proceedings.

6 On 11 July 2001, a notice of motion was filed by the Creditor (as respondent) in the proceedings for damages brought by the Maxwell-Smiths. The respondent Creditor sought an order for dismissal of the applications under Order 20 Rule 2 of the Federal Court Rules. Only one notice of motion has been filed; but the parties agreed before me that it could be taken as relating to both applications, N895 and N896, and so would stand as two motions.

7 Thus, before the Court are the applications to set aside the bankruptcy notices and the applications for summary dismissal of the original proceedings initiated by the debtors. The original proceedings, N895 and N896, are said to be the foundation for the setting aside of the bankruptcy notice under subs 41(7) of the Act.

8 At the hearing of the applications and notices of motion I made an order that evidence in one application and motion be evidence in all applications and motions.

9 The controversy between the parties arises from building work done by the Creditor for the Maxwell-Smiths, which the latter claimed was defective. To understand how the matter has reached its present unfortunate stage and to understand the foundation of its present resolution a grasp of the chronology is essential.

10 On 3 August 1995, Mr Maxwell-Smith engaged the Creditor to construct a home at 8c Surf Circle, Tura Beach, New South Wales.

11 By late May 1996 there was serious disagreement between the parties about their respective rights in connection with the construction work. At that time Mr Maxwell-Smith lodged a complaint with the New South Wales Department of Fair Trading. Apparently no action was at that time taken by that Department. At this time the Maxwell-Smiths claimed that the Creditor was not entitled to payment as claimed because of uncompleted work on the home.

12 The Creditor then issued proceedings in the Consumer Claims Tribunal (the Tribunal) under the Consumer Claims Tribunals Act 1976 (NSW) (the CCT Act), being proceedings numbered BW 096/51. On 9 September 1996 there issued from the Registry of that Tribunal a "Notice of Order" reflecting a decision of 5 September 1998 ordering Mr and Mrs Maxwell-Smith to pay the Creditor $7,012.55 within 28 days. In a 22 paragraph body of reasons the Tribunal dealt with various aspects of the building claim, including the following: the Maxwell-Smiths being allowed occupation before completion; variations requested by the Maxwell-Smiths and the undertaking of the variations; the garage door; foil and insulation for the cook-top, the winding mechanism for the skylight and its inadequacy; its replacement; the change from "sparkle glass" to laminated glass; the builder's margin; the tiles; the tile adhesive; various items responsibility for which was said to be disclaimed by the Maxwell-Smiths; cleaning and digging; electricity costs; interruption to wiring the home; the spa electrical wiring; loose door jambs; and powder coating and scratches.

13 On 30 September 1996, the Maxwell-Smiths filed a summons in the Administrative Law Division of the Supreme Court of New South Wales seeking the quashing of the order of the Tribunal on the grounds of a denial of natural justice.

14 On 13 November 1996, orders by consent were made referring the matter back to a differently constituted Tribunal for a rehearing. The orders were in the following terms:

1. The matter be referred back to the Second Defendant for rehearing by a differently constituted tribunal.

2. The Court Notes there is no Order as to costs as between the Plaintiffs and the First Defendant.

15 The matter was heard again in the Tribunal.

16 On 25 February 1998, a Notice of Order issued from the Registry of Consumer Claims Tribunals ordering the Maxwell-Smiths to pay the Creditor the sum of $6,745.55 no later than 1 April 1998. This Notice of Order consummated a reserved decision made on 29 August 1997. Reasons of 5 pages were given. The reasons revealed that the dispute was heard before the Tribunal on 4 and 30 April, 29 August and 30 October 1997. It is unclear what occurred on 30 October 1997, two months after the reserved decision was made. In any event, a hearing apparently took place which included an inspection of the subject work by the Tribunal. This inspection was described by Mr Maxwell-Smith in his affidavit read before me as one "when he [the Tribunal] personally saw the full extend [sic: extent] of the unfinished work." Mr Maxwell-Smith continued: "The misleading and untrue statements supplied by Hall's subcontractors in support of his case were a contributing factor to the unfair decision by the Tribunal."

17 The Tribunal sat for over 18 hours, which included the inspection of the premises in the presence of both parties. Oral evidence and submissions were taken. Documentary evidence was received including contracts, correspondence, plans, invoices, quotes, statutory declarations and videos made by both parties dealing with the condition of the residence. The Tribunal set out the various claims of the parties. It noted that the defence and cross claim of the Maxwell-Smiths contained, as a central feature, complaints about the skylight of the premises. The Tribunal noted the multiplicity of claims and that the dispute had degenerated into one of some acrimony and bitterness. In this context, it was necessary for the Tribunal to make credit findings. It preferred the evidence of Mr and Mrs Hall (of the Creditor) to that of Mr and Mrs Maxwell-Smith. One reason was the frequent corroboration of the evidence of the Halls by written material and other witnesses. The Tribunal noted the claim by the Maxwell-Smiths that the corroboration of other witnesses was reflective of collusion and false evidence by these people. This was rejected. On the basis of the evidence, including the videos and including the view taken of the evidence of witnesses, the Tribunal made findings which included the following: that variations were called for by the Maxwell-Smiths and made by the Creditor; that the Maxwell-Smiths were obliged to pay for these such that the Creditor was entitled to its primary claim of $7,342.05; and that work was done in a workmanlike way and properly accounted for. The Maxwell-Smiths persuaded the Tribunal that they were entitled to an allowance totalling $96.50 apart from consideration concerning the skylight.

18 The Tribunal then turned to the skylight. An allowance in favour of the Maxwell-Smiths of $596.50 was made concerning the skylight. The reasons of the Tribunal dealing with the skylight were as follows:

In relation to the skylight, R seeks significant rectification in relation to issues of scratching and scoring on the laminate, slight misting and water penetration, oozing of the bonding agent and rusting deterioration of the bolts on the external surface. I take into account particularly the significant role Mr Maxwell-Smith had, as a person with asserted and demonstrated plastics and design expertise, in the design and selection of materials. I also take into account that he had selected and instructed the subcontractor (responsible for that work) in advance of C becoming responsible for the project. I further rely on my physical observations of the condition of the skylight. The surface scratches and scores are insignificant, and it is impossible to be satisfied on the balance of probabilities in any event who caused those abrasions. I do not consider the extent to which the butyl rubber emerges from between the layers of skylight to be other than a minor cosmetic drawback and is not the result of defective workmanship. The minor misting and intersheet water penetration is not a result of defective workmanship. To the very limited extent to which it effects the efficacy of the skylight it is a design flaw. I am satisfied that various of the bolts holding the edge strips of the skylight in place which ought to be zincalume show signs of early rust effect. Mr Hall had denied this possibility vigorously in argument, but on the shared site inspection conceded the early rust damage. The rectification required to replace those items is significantly less than the rectification sums sought by R in relation to an effective replacement of the skylight. On the basis of all the evidence before me, and taking into account that the work site for rectification is difficult (i.e. on the very rooftop) but also taking into account there is no deterioration of the members upon which the bolts rest, I allow $100 for materials and $400 for labour. I do not intend to order C to physically undertake the rectification work, given the poor relationship between the parties and R's stated desire that C's directors not attend their premises in relation to further rectification.

19 The Tribunal also refused to make any order dealing with the costs of the earlier judicial review proceedings in the Supreme Court. (It should be noted that in those proceedings, apparently by consent, no order for costs was made by the Supreme Court (see [14] above).

20 Following this decision, the Maxwell-Smiths filed another summons in the Supreme Court. On 23 June 1998 an Amended Summons was filed in the Administrative Law Division of the Supreme Court, once again claiming a denial of natural justice, and an order quashing the decision of the Tribunal.

21 I should add that it appears that during 1998 the Maxwell-Smiths once again requested the Department of Fair Trading to act. It declined at that time to do so.

22 On 8 December 1998 the summons in the Supreme Court was dismissed with an order that the Maxwell-Smiths pay the costs of the parties (the Registrar of the Tribunal had been named as the first defendant to the amended summons), including those of the Creditor. It is those costs of the Creditor that form the basis of the judgment debt upon which the bankruptcy notice is founded.

23 On 1 February 1999, the Maxwell-Smiths sought leave to appeal to the Court of Appeal. In April 1999 leave was refused by Powell and Giles JJA, with costs.

24 In May 1999 the Maxwell-Smiths sought special leave to appeal to the High Court. On 30 November 1999 that application was dismissed with costs.

25 By 13 May 1999 the costs of the Supreme Court first instance hearing were assessed as set out in [2] above. The Creditor's costs of the High Court application for special leave to appeal have been taxed and allowed at $5,528.27.

26 During the pendency of the application for special leave in the High Court, the Department of Fair Trading apparently took some steps. I set out below extracts of Mr Maxwell-Smith's evidence before me describing what he and his wife see as the present relevance of these steps:

...

M. During the High Court proceedings in 1999, the DFT finally admitted their liability to investigate the unfinished work left behind by Contractor S & E Hall P/L. The Assessor from the Department inspected the unfinished work and the DFT agreed that the unfinished work was well in excess of $.10,000.--.

....

7. The undeniable truth that Hall made false claims before the Courts was finally confirmed after 4 years when the Department of Fair Trading declared the existence of the unfinished work that was left behind by S & E Hall. Hall was clearly guilty of not discharging his obligations under the standard conditions of the building contract.

8. The evidence of the DFT's assessment of the unfinished work was not available in either the Tribunal hearing, the Judicial Review or the Leave of Appeal hearings. Hall's lawyers refused the admissibility of this evidence at the High Court hearing of Special Leave to Appeal although it was available at that time. The consequential unjust rulings by the Tribunal and the Superior Courts are a direct result of the negligence of the DFT to act when they were supposed to and the objection by Hall to have this evidence admitted when it was finally available. The failure of the Courts to recognise the prefailing [sic] grave injustices have had a seriously [sic] effect on my financial status, my reputation and my health over the past 4 years. If the Federal Court of Australia or the Federal Magistrate[s] Court declares me Bankrupt and causes me to be thrown out of my own home to satisfy the immoral demand of others, it will totally destroy my belief that truth will triumph over deceipt [sic].

9. At a recent meeting with the Assistant Director General and the Head of the Legal Branch of the DFT it was made clear to me that the Department cannot act on my behalf in negotiating an agreement with Hall. I am therefor preparing a counter claim setting out the financial losses in defending the unjustifiable claims from Hall. Included in that claim are the costs to rectify unfinished work and work still remaining to be rectified that was not covered by the Building Insurance Scheme, as well as the costs related to the deteriation [sic] of my health because of the effect of four years of litigation and finally compensation for the damage done to my reputation. These costs will exceed by far the total outstanding orders claimed by Hall.

27 As can be seen from the above the Maxwell-Smiths claim, amongst other things, that the views of the inspector from the Department prove ("the undeniable truth") that the Creditor made false claims and that they were correct in their claims of the Creditor's breach of contract. The unavailability of this evidence (that is the opinion of the inspector from the Department) at the Tribunal and Supreme Court proceedings was said to be a result of the negligence of the Department.

28 In December 1999 the Maxwell-Smiths filed notices of motion in the Local Court at Bega seeking a stay of execution of the Tribunal decision. The motions were dismissed by the Magistrate at Bega on 11 January 2001, with costs of $400 awarded. I need not refer in any great detail to the affidavits of the Maxwell-Smiths in support of those applications, except to say that they emphasised the importance of the view of the inspector from the Department, the Department's alleged negligence in failing to give this opinion earlier, the alleged denial of natural justice at the second Tribunal hearing (found not to exist by Greg James J upon review in the Supreme Court), a possible Ministerial inquiry which "may result" in declaring the Tribunal decision invalid and a contemplated action for compensation against the Department.

29 At this point, it is necessary to examine the pleadings in, and supporting evidence to, proceedings N895 and N896 of 2001, being the substantive claims for damages of the Maxwell-Smiths and the foundation for their applications in N7225 and N7226 of 2001 to set aside the bankruptcy notice. It is these claims which the Creditor seeks to have dismissed under Order 20 Rule 2 because, it is said, they are an impermissible re-litigation of the subject matter of the Tribunal decision and later decisions and thereby, it is said, they have no reasonable prospect of success, are frivolous and vexatious and an abuse of the processes of the Court.

30 Each of the statements of claim in N895 and N896 of 2001 contains six paragraphs. The first five in each are identical and are relevantly as follows:

1. I, ... claim that the Respondent S & E Hall Pty Limited, a construction company, made a demand for money knowing that it was not entitled to it.

2. I claim that the Respondent used unfair tactics in its attempt to recover this money by the use of standover tactics in contravention of the Trade Practices Act 1974 under Part IV A section 51AB - Unconscionable conduct - and Part V section 52(1) - Misleading and deceptive conduct -

3. I claim that the Respondent did not complete work covered by a written contract to the required and mandatory specifications and Australian standards in contravention of the Act under Part IV B Industry codes section 51AD - contravention of industry codes - and 53(a) & (aa) False and misleading representation.

4. I further claim that the Respondent proceeded with its unlawful demand before a Building Dispute Tribunal, with deceptive and misleading evidence and by working in collusion with its subcontractors in producing false and misleading statements.

5. I claim that the Respondent took advantage of the limited knowledge of a self representing litigant by using excessive legal means to defend an indefensible position and purposely [sic] raising the costs of litigation by taking unnecessary legal actions. It caused a minor dispute, in the order of $.7000.--, to escalate to a dispute well in excess of $.60.000.--.

31 The sixth paragraph in each deals with damages and is slightly different for each:

N895 (Mrs Maxwell-Smith):

6. I claim that the trauma, caused by endless exhausting litigation and the numerous attempts on my part to have the unfinished work rectified, has deteriated [sic] my health, and has significantly lowered my expectations of a well deserved retirement. Several mental break-downs caused deep depression, panick [sic] attacks, sleeping disorders, breakdown of my immune system and heart problems. The disgraceful conduct of the Respondent has decreased my quality of life significantly.

N896 (Mr Maxwell-Smith):

6. I claim that the trauma, caused by endless exhausting litigation and the numerous attempts on my part to have the unfinished work rectified, has deteriated [sic] my health, and has significantly lowered my expectations of a well deserved retirement. My mental outlook deteriated [sic] to the extend [sic] that it caused a complete breakdown. My opportunity of supplementing my pension with professional engagements and that was my intention, is lost for ever.

32 I will refer to both, where this overlap occurs, as the Statement of Claim. Each paragraph of the Statement of Claim needs to be read with the supporting Amended Annexure which provides some sort of body of particulars and the evidence tendered by the Maxwell-Smiths under numbers reflecting the 22 paragraphs of the Amended Annexure.

33 Paragraph 1 of the Statement of Claim claims that the Creditor claimed money to which it knew it was not entitled. The evidence and particulars make clear that this was the claim the subject of the Tribunal hearing and order. The evidence includes the written opinion of the Departmental inspector dated August 1999, and the approval in November 1999 for an insurance claim of $9,563 for work to be attended to on the property. That is work, in the opinion of the inspector, which was necessary to be done and which would be paid for by insurers of the "Comprehensive Insurance Scheme". That work appears to have been done. It is clear from paragraph 3 of the Statement of Claim that the standard of work and the issue of completion, plainly litigated before the Tribunal, is sought to be made the subject of these proceedings.

34 Paragraph 2 of the Statement of Claim claims the undertaking of conduct which was "unconscionable" (s 51AB of the Trade Practices Act 1974 (Cth) (the TP Act)) and "misleading and deceptive" (s 52 of the TP Act). This conduct is said to be "standover tactics". The misleading and deceptive conduct is particularised as the claim by the Creditor to the Tribunal which was the subject of the Tribunal's determination and order and the building contract documentation and plans concerning the construction the subject of the litigation between the parties before the Tribunal and the subject of the Tribunal's determination and order.

35 The unconscionable conduct appears to be reflected by the allegations in paragraphs 4 and 5 of the Statement of Claim. There are 10 items listed in the Attachment. It is not clear what particulars of unconscionability or "standover tactics" are intended to be encapsulated by them. I do not propose to examine each individually. They all relate in some way to the evidence before the Tribunal and the quality of the Creditor as a builder in relation to the Maxwell-Smiths' job and another dispute the Creditor apparently had with another principal. Whatever the relevance of that latter matter, it was agitated before the Tribunal.

36 The damages of $105,000 appear to be made up of all costs and orders which presently are the responsibility of the Maxwell-Smiths and all their associated travel and accommodation costs in dealing with all aspects of the claims.

37 A number of things are plain and cannot be gainsaid in relation to the legal position presently obtaining between the Creditor and the Maxwell-Smiths. First, the bankruptcy notice is based upon a judgment for costs which was the subject of unsuccessful applications to appeal. Secondly, no attempt has been made, and no attempt could possibly be made, to go behind that judgment. It is a judgement reflecting the taxed costs of Supreme Court proceedings. Thirdly, the Tribunal has decided the building claim against the Maxwell-Smiths. Fourthly, the attack by way of judicial review upon that decision was wholly unsuccessful. The only material not before the Tribunal which is now available is the report of the Department of Fair Trading inspector substantiating claims for over $9,000. This document was not before the Tribunal because it was not brought into existence until August 1999. Fifthly, that report was not prepared pursuant to a hearing at which the Creditor was represented. Sixthly, the report has no effect, merely by its being brought into existence, upon the decision and order of the Tribunal reached and made after a contested hearing before it.

38 The whole of the argument before me is premissed, it seems to me, on the proposition that the opinion of the Departmental inspector falsifies the decision of the Tribunal or is evidence which will falsify the decision of the Tribunal. This opinion of the inspector may be contrary to findings made by the Tribunal but it does not, of itself, lead to any conclusion that the Tribunal was wrong if, and in so far as, the Tribunal made findings contrary to the opinion of the inspector. The Tribunal heard the matter before it and made its findings. It is not a proper particular of the allegation of a knowingly wrongful claim for money merely to identify an opinion, arrived at later, of a third party, which may be inconsistent with the earlier decision of the Tribunal and of the claim itself.

39 What has to be properly pleaded and particularised is that the claims and evidence led before the Tribunal were false and unfounded, and in what respect, and that such conduct (the making of the claims and the leading of the evidence) was unconscionable and misleading and deceptive. That way of putting the matter throws into relief what the Maxwell-Smiths seek to do here. The Maxwell-Smiths contended before the Tribunal that the claim of the Creditor was false, that work was substandard and in need of correction, and that the evidence of the Halls and other witnesses was false and the product of collusion. The Tribunal, having considered all those matters, decided the credit issues against the Maxwell-Smiths. The Tribunal found that the evidence of the Halls and others was more acceptable than that of the Maxwell-Smiths and that the claim of the Creditor was not false. The Maxwell-Smiths now wish the Federal Court to characterise the conduct of the Creditor before the Tribunal as misleading and deceptive and unconscionable because, it is said, once again, that the claims of the Creditor and the evidence of the Halls and others were false.

40 That is plainly and simply to seek to relitigate matters which were dealt with by the Tribunal.

41 In support of this course, the only material now available and not before the Tribunal is the opinion of the Departmental inspector. This was available only in August 1999. The judgment for the costs upon which the bankruptcy notice is founded is dated 13 May 1999. However, this does not mean that the proceedings in the Federal Court (if valid and not subject to summary dismissal) reflect a counter-claim, set-off or cross demand that could not have been set up in the action in which the judgment or order was obtained. Judicial review of the Tribunal decision was claimed. If there is any legal merit in the present proceedings, N895 and N896, the allegations in those proceedings could have been pursued in the Supreme Court along with the judicial review. The matters raised in N895 and N896 are not the subject of exclusive original jurisdiction of the Federal Court.

42 If this is sought to be answered by saying that the Departmental inspector's report was not then available, that highlights the misconception of the effect of that report. It is only another piece of material which might form the basis for assisting the argument of the Maxwell-Smiths. It does not constitute demonstrated or conclusive proof of any error in the Tribunal's findings unless and until it forms part of some relitigation of the issues. If the Maxwell-Smiths wanted to litigate what is now in the Federal Court proceedings N895 and N896 of 2001, they could have done so (if it was otherwise lawfully available to them) in the proceedings in the Supreme Court which led to the order for costs upon the judgment for which the bankruptcy notice is based.

43 However, the proceedings N895 and N896 are fatally flawed. They could not have been successfully maintained in the Supreme Court and they should not be permitted to be litigated in this Court. They are a naked attempt to relitigate the issues decided in the Tribunal.

44 It is said that a demand for money was made by the Creditor and known by the Creditor to be false. The Tribunal found the claim (in a slightly reduced amount) to be valid. It is claimed that work was not completed to required standards. The Tribunal found the work to have been done in a workmanlike way. It is claimed that the evidence tendered to the Tribunal was "deceptive and misleading" and the product of collusion with subcontractors in producing false and misleading statements. The Tribunal rejected the very same allegations and preferred the evidence of the Halls and others to that of the Maxwell-Smiths. It is said that the Creditor took advantage of the Maxwell-Smiths by "using excessive legal means to defend an indefensible position and purposely raising the costs of litigation by taking unnecessary legal actions". As to the "indefensible position", this is the relitigation of the merits of the matter. As to the other matters there alleged, no evidence to substantiate a most serious allegation, also affecting the Creditor's legal advisers, is put forward.

45 The only matter which could be said not to be a relitigation of the matters before the Tribunal is the allegation of "excessive legal means" just referred to. It may be that there is some matter capable of being pleaded to the effect that unconscionable conduct was engaged in by the Creditor in how the case was conducted, assuming the legitimacy of the ultimate "position" of the Creditor in the litigation. However, what is pleaded in paragraph 5 of the Statement of Claim is inextricably bound up with the allegation of an "indefensible position", which thereby raises the relitigation issue. Submissions were put to me by the Maxwell-Smiths as to the unjustifiable nature of the litigation. They were as follows:

7. Unjustifiable litigation

a. Hall proceeded as the claimant before both Tribunal hearings without proper cause.

b. In the Judicial review and Leave for Appeal proceedings, Hall did not provide any affidavits or submissions as to show cause that he was entitled to his claim. A simple submitting appearance, as was the case with Counsel for the 1st Defendant, would have saved considerable costs.

c. Hall objected to the Notice of Motion put by the Maxwells for a stay in the orders until the matter was finalized in the High Court, without offering a reason for the opposition. The cost claimed by Hall for opposing the Notice of Motion was $.9,228.73.

d. Hall authorized his legal representatives to spend $.44,339.77. without ever showing cause that he was justified in making his claim. (SOC [the exhibited bundle of material referred to in the Amended Annexure to the Statement of Claim] 21B page 4 shows a recorded total of $.35,111.11 & SOC 21A, the claim mentioned in item c, shows an additional $.9,228.73, not mentioned in SOC 21B)

e. The legal costs were grossly overrated according to Court appointed assessors. The $.44,389.77 mentioned in item d. was assessed down to $.20,723.24 or 46% of the recorded total.

f. Hall and/or Warren intend to increase the litigation, by starting another procedure of an Application under Order 21 Rule 1, in having the Maxwells declared as vexatious litigants.

46 None of these matters seems to me to be capable of amounting to unconscionable conduct, especially in circumstances where they appear to be premissed upon the falsity of the claim before the Tribunal.

47 The balance of the matters raised by the Maxwell-Smiths are, as I have said, a clear and naked attempt to relitigate the building dispute. This is made clear in the written submissions filed before me. Under the hearing "INDISPUTABLE FACTS" there are seven sub-headings: "1. Denial of Natural Justice; 2. Hall is an unreliable witness; 3. Incompleted work; 4. Evidence not available at preceedings hearings; 5. Conflict of Interest; 6. Cost saving resolution process; 7. Unjustifiable Litigation."

48 In 1., "Denial of Natural Justice", the following 3 paragraphs appear:

1. Denial of Natural Justice

a. The Maxwells claim that it is an indisputable fact, that the Tribunal BW096/51 made a major error and that this error in itself was a denial of natural justice.

b. The main reason for this error was, that Hall made a dishonest claim, while concealing the fact that he did not complete a substancial [sic] amount of work to required standards.

c. The full extend [sic] of the error did not become evident until the expert report from the Department became available two years later.

49 This is relitigation of the Tribunal decision, justified by the "revelation" in the Departmental inspector's report.

50 In 2., "Hall is an unreliable witness", the evidence before the Tribunal is canvassed. The claimed dishonesty is "exposed" by the inspector's report. The following appears:

2. Hall is an unreliable witness.

a. All written evidence presented to the Tribunal was in the form of sworn statements. In the Consumer Claims Tribunal Act 1987 under section 23.(3) states; "if evidence at the hearing is to be given in writing, it must be given on oath". Hall presented his claim (SOC 8) as Exhibit 1 to the Tribunal. This claim contained false and misleading information. (Details of Argument final paragraph page 4 and continued page 5)

b. The false information caused the Tribunal to believe that "the claimant (Hall) made significant concessions against its financial interest["]. (item 3 page 4 of the Reserved Decision)

c. Hall is a licenced [sic] building contractor and understands building codes and standards. He willingly concealed from the Tribunal that work carried out by his subcontractors did not comply with required standards. (SOC. 4 pages 1 & 2)

d. The dishonesty of his claim was exposed in the report from the Department (SOC 4.)

e. Hall conceded to the Maxwells that he made errors in his final account and presented a corrected final account no.2. to the Maxwells. After receipt of account no 2, the Maxwells made an offer against their financial interest, in order to resolve the dispute. Hall refused this compromise and presented account no 3, which was increased by $.1,360.82. by again including the conceded errors. This account was presented to the Tribunal in the Exhibit No 1. (Affidavit item 7. from Inge Maxwell filed 16 July)

51 In 3., "Incompleted work" the matters rest entirely on the inspector's report. The following appears:

3. Incompleted work

a. The cost of the rectification of work, left unfinished by Hall, was well in excess of the amount demanded in the final account. (SOC 1 B & SOC 6 A affidavit Rodney G Elliot item 7 filed in Court 17 July 2001)

b. The Department has not persued [sic] recovery action from Hall. In other words, Hall has not repaid the costs of work carried out by others and which was his responsibility in the first place. (Annexure "F" to the Affidavit SOC 6A)

52 In 4., "Evidence not available at preceeding hearings", the inspector's report is identified as the "conclusive evidence". These submissions contained the following.

4 Evidence not available at preceeding hearings

a. In the Reserved Decision BWO96/51 of 29 August '97, the Tribunal Referee says in relation to the unfinished work, "Accordingly, I consider it fair and equitable to allow against the amount otherwise made out by the claimant (Hall) a total of $.596.50 for matters requiring rectification." (page 5)

b. In the Judgment from Justice G James of 8 Dec. '98 in the Judicial Review, his Honour says, "The evidence before me does not allow me to conclude the result was so unreasonable as to show a breach of natural justice in itself. (final par. page 11.)

c. The conclusive evidence from the Department was also not available at the Leave for Appeal.

d. The vital evidence from the Department, that became available in Aug 1999, is the pivotal issue on which to decide whether or not Hall was entitled to his claim for payment.

e. Although the evidence was available towards the end of the proceedings of the Special Leave for Appeal, Warren did not allow this evidence to be presented to the Hight Court.

[emphasis added]

53 Allegations of impropriety are made against the Creditor's solicitor in 5., "Conflict of Interest":

5. Conflict of interest

a. The Maxwells were clients of White from Sautelle & White before and during the construction of their home by Hall. If this fact is challenged by White, the Client Service Agreement and accounts rendered by White are available for filing.

b. White actively assisted Hall during the Tribunal hearing and represented Hall in all proceedings.

54 That alone is insufficient to raise any impropriety. It is on its face irrelevant to the issues before me.

55 The matters in 6., "Cost Saving Resolution Process" are irrelevant. They are as follows:

6. Cost saving Resolution Processes.

a. The Maxwells offered their willingness to resolve the dispute with Hall by mediation, before the commencement of the 2^nd Tribunal hearing. (letter to Department 31 December 1996,)

b. The Maxwells tried to minimize the cost of litigation by requesting the Leave for Appeal to be heard in chambers.

c. The Maxwells are also prepared to resolve the Bankruptcy matter by mediation. (Their affidavits filed on 15 May item 17.)

d. The Maxwells said before Justice Allsop on 17 July, that they are prepared to have the matter of the Notice of Bankruptcy and the Application of the Crossclaim decided in chambers.

56 I have already referred to 7. (See [45] above.)

57 That the object of the Federal Court proceedings is to relitigate the very issues decided in the Tribunal is not able to be seen with precision from a comparison of the Departmental inspector's report and the (second) decision of the Tribunal. This is so because the Tribunal did not itemise each and every matter in dispute and the subject of its conclusions. However, there is nothing to suggest in the evidence or submissions before me that the areas of focus for the allegations of inadequate or incomplete building work changed such that the inspector's report was dealing with different matters or from a different perspective than as contained in the Tribunal decision. To the contrary, the thrust or gravamen of the Maxwell-Smiths' case is that the inspector's report reveals and illuminates the very errors committed by the Tribunal which errors were brought about by the knowingly false claims of the Creditor and the false and collusive evidence of the Halls and others.

58 In this light can the Maxwell-Smith's propound the Federal Court proceedings?

59 One difficulty which arises is the form of the pleading. Were it being advanced with the assistance of solicitors or counsel there would be questions as to whether it should not be struck out. However, the Creditor does not raise these matters. It complains about the vexatiousness of the claim and the relitigation of issues dealt with in, especially, the Tribunal hearing and decision.

60 In its submissions the Creditor says the following:

4. The applicant's [sic] is estopped from proceeding with their cross-claim and it should be struck out. The claims made by the applicants in proceedings N896 of 2001 either were or should have been raised and determined in prior proceedings. Port of Melbourne Authority v Anshun Pty Ltd (55 ALJR 621)

5. Consequently, the applicants have no grounds on which to base their Application to Set Aside the Bankruptcy Notice and accordingly, it should be dismissed.

61 There is a difficulty with merely relying on Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589 to the extent that the submissions appear to raise the application of the principle in Henderson v Henderson (1843) 5 Hare 100; 67 ER 313, which was discussed in Anshun, supra at 598 ff, in relation to the Tribunal decision. The Trade Practices claims could not have been made in the Tribunal, because they are premissed upon the decision of the Tribunal being against the Maxwell-Smiths, and that having occurred because of the impugned conduct of the Creditor and the Halls and the witnesses.

62 As I indicated earlier, if there was an earlier time when the allegations in N895 and N896 should have been brought it was in the Supreme Court, on the second occasion. The decision of the Tribunal was there attacked on administrative law grounds. It could, subject to what I am about to say, have been attacked on these further grounds (if that attack at law was available). Thus, to the extent it can be found that the matters raised in the Federal Court proceedings are not prevented from being raised by reason of other considerations (as to which, see below), they are matters which, if to be raised, should have been litigated in the Supreme Court on the second occasion. That the inspector's report was not available at this time is irrelevant. It is only a piece of evidence which might assist in showing that the decision of the Tribunal was wrong and that that occurred because of the conduct of the Creditor. The Maxwell-Smiths could have retained a building expert to give that evidence. The inspector's report does not fulfil any role further elevated than that of some available evidence going to the correctness of the issues already litigated.

63 The subject matter of the validity of the decision of the Tribunal was thrown up for scrutiny in the Supreme Court. Strictly, in the Federal Court proceedings, the decision is not sought to be set aside, rather compensation for the consequences of the impugned conduct causing the Tribunal to find as it did is claimed. Damages are sought. However, it seems to me that the connection between the subject matter of the second Supreme Court proceedings and the allegations in the Federal Court proceedings is sufficiently close as to have required the Maxwell-Smiths to bring forward in the Supreme Court their whole case as to what had happened before the Tribunal. This connection can be seen when one peruses the reasons for judgment of Greg James J contained in Exhibit SOC 20 before me. At p 5 of his Honour's reasons there is reference to exhibit 101 which he described as "a typewritten statement of contentions including various pejorative references to the persons involved either as parties or witnesses and dealing with the substance of the matters in a highly emotional way." This, I take it, is the type of attack made on the witnesses and dealt by the Tribunal and reagitated in the Federal Court proceedings, eg paragraph 4 of the Statement of Claim (see [30] above).

64 The reasons of Greg James J are replete with matters going to the merits of the building claim, the alleged perfidy of the Creditor and the justice of the underlying claims of the Maxwell-Smiths, although much of what his Honour was dealing with was by way of submissions and not admissible evidence: see pp 7-8 of the judgment. What this does reveal however is that a broad attack was made before Greg James J on what occurred at the Tribunal. It seems to me that it was incumbent on the Maxwell-Smiths to bring forward their complaints based on ss 51AB and 52 of the TP Act at the time of this attack in the Supreme Court, if they were in law available.

65 However, in my view those claims were not available then in any event. The Tribunal had decided, after a hearing, the claim of the Creditor, the defence to it and the cross-claim of the Maxwell-Smiths. It did this by deciding all the issues about the complaints and allegations of the parties in respect of the work. There were no strict pleadings. It was not a superior court of record; but it was a body with jurisdiction to make final orders: see the CCT Act ss 4 to 12, 12A to 12K and 13 to 37. The Tribunal decided the issues thrown up by the parties for determination and made an order for the payment of money.

66 Whether one examines this from the perspective of res judicata or issue estoppel, what is plain is that the underlying premisses of the Federal Court proceedings have been decided. The rights of the parties concerning the legitimacy of the claim by the Creditor, the alleged incorrectness of the determination by the Tribunal, the alleged failure of the Creditor to do the work under the contract, the alleged existence of collusive false evidence, the alleged "indefensible position" of the Creditor, have all been conclusively determined against the Maxwell-Smiths. These elements of the Federal Court proceedings pleaded in the Statement of Claim have been determined between the parties. The parties are now estopped from challenging those issues and matters determined in a binding way between the parties by the Tribunal. It is not open to the Maxwell-Smiths to assert that facts exist directly contrary to those decided so as to provide the foundation for a claim for damages: see generally Spencer Bower, Turner and Handley Res Judicata (3^rd Ed) par [182]. The Tribunal's decision is one giving rise to such principles: Spencer Bower et al, supra at [19], [21], [23], [25] - [30].

67 No claim to set aside the Tribunal decision based on fraud is made. No basis for it in my view is made out. A mere allegation of perjury without new facts is not enough to justify setting aside the judgment: Wentworth v Rogers (1986) 6 NSWLR 534, 539; Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130, 147-8 . There is some "new" evidence here: the inspector's report. However, it is not really new. It was evidence of a kind available at the time of the Tribunal hearing - expert building evidence. Further, one person's opinion as to some, even all, of the matters in issue before the Tribunal does not provide a foundation for concluding that any conduct of the Creditor of the kind complained of took place or that such conduct amounted to fraud. It is an insufficient basis to make such a serious allegation.

68 What is not claimed, which logically might be, is a claim for relief under s 87 of the TP Act setting aside (at least inter partes) the decision of the Tribunal as having been brought about by conduct in contravention of ss 51AB and 52. Section 34 of the CCT Act provided as follows:

34 Order of the tribunal to be final

An order of a tribunal is final and binding on all parties to a consumer claim that is heard and determined by the tribunal and no appeal lies in respect of an order of the tribunal. However, this does not prevent a claim being renewed under section 36 and does not prevent a court granting relief or a remedy as referred to in section 12(2).

69 Section 12 of the CCT Act provided as follows:

12 Tribunal to be immune from judicial review

(1) Except as provided by subsection (2), a court of record has no jurisdiction to grant relief or a remedy by way of:

(a) a judgment or order in the nature of prohibition, mandamus, certiorari or other prerogative writ,

(b) a declaratory judgment or order, or

(c) an injunction,

in respect of a consumer claim heard and determined or to be heard or determined by a tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a claim.

(2) A court is not precluded from granting relief or a remedy of a kind referred to in subsection (1) if, in respect of a consumer claim:

(a) a tribunal has given a ruling under section 26 or refused or failed to give such a ruling after the jurisdiction of the tribunal to hear and determine the claim has been disputed by a party to the claim and the ground on which the relief or remedy is sought is that:

(i) the ruling was erroneous, or

(ii) the tribunal erred in refusing or failing to give the ruling after its jurisdiction was disputed, or

(b) a tribunal has made an order under section 30 and the ground on which the relief or remedy is sought is that:

(i) the tribunal had no jurisdiction to make the order, or

(ii) in relation to the hearing or determination of the claim, a party to the claim had been denied natural justice.

70 However these provisions are of State legislation. An interesting question might then arise as to the ability of a Commonwealth Act to bring about the effect of setting aside a decision of a State tribunal by reason of the conduct of parties to the hearing before that tribunal. Constitutional questions might arise, and not merely by reason of the application of s 109 of the Constitution. However, that is not claimed. Had it been claimed, then what I have earlier said about this matter being litigated before the Supreme Court applies and Anshun would prevent it being raised in the Federal Court now.

71 Strictly speaking all these matters are questions to be pleaded by way of defence and reply. However, modern practice permits these questions to be raised at this point of interlocutory hearing. Indeed Willmer J in Bright v Bright [1954] P 270, 278 said that it was appropriate to deal with such matters in chambers so as to avoid further expense. That is very much a factor here. This matter has escalated from a minor Consumer Claims Tribunal matter, involving a sum under $10,000, to one which has spurned significant legal costs and deeply felt emotional tension. No doubt from what has been put to me, the Maxwell-Smiths attribute this to the claimed perfidy of the Creditor. However, they had their day in court, in the Tribunal. There they made the serious accusations which they now seek to repeat. The Tribunal heard the matter for over 18 hours, had an inspection, considered the witnesses and the evidence and made a decision. The Maxwell-Smiths lost. The Departmental officer's opinion gave them access to an insurance fund to have further work done. The further expense and litigation is a product of their unwillingness to accept the decision of the Tribunal.

72 The public policy underlying issue estoppel, res judicata, Anshun, Henderson v Henderson and like principles is the finality of litigation - in the interests of the community and of individuals. The community, as the provider of publicly funded dispute resolution mechanisms, is entitled to have finality after a hearing on the merits, once, and any appeal process. Private individuals are entitled to be protected from multiple repetitive suits.

73 The claims, here as pleaded, are founded on, and seek to assert, facts and matters contrary to matters conclusively decided against the Maxwell-Smiths by the Tribunal. Alternatively, to the extent that it might be said that the Federal Court proceedings could be amended to include a claim to set aside the binding nature of the Tribunal's determination or to the extent it might be said that that is how the Federal Court proceedings, as presently pleaded, should be viewed and if those claims are not defeated by the findings and determination of the Tribunal, they should have been brought, if they were to have been brought, in the Supreme Court along with the claim under s 12 of the CCT Act.

74 For the above reasons, the applications in N895 and N896 are, in my view, without substance, vexatious and oppressive and an abuse of process. A dismissal of the proceedings is sought and I propose to make that order.

75 In these circumstances I dismiss the applications to set aside the bankruptcy notices.

76 In each motion the Maxwell-Smiths are to pay the costs of the Creditor. Indemnity costs are sought. No independent argument was put about that. In those circumstances, I do not propose to make such an order.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 25 January 2002

The applicants appeared in person
Counsel for the Respondent:	Mr B Janssen
Solicitor for the Respondent:	Sautelle White, Merrimbula
Date of Hearing:	15 October 2001
Date of Judgment:	25 January 2001