Unrepresented woman ordered to pay costs of statute barred case

Wells’s Case [2006] VCAT 2370 (Senior Member Howell, 16 November 2006)

Mrs Wells’s case, also the subject of the previous post, was struck out under s. 75 of the VCAT Act, 1998 for having been brought out of time. Mr Howell found that the case was “lacking in substance” because it was statute barred and ordered her to pay the Legal Practitioner’s costs despite accepting that she genuinely believed that she could bring the claim more than 6 years afer the allegedly negligent omissions, which some might say was not a particularly severe misconception if she was suing in negligence, where the first occurrence of some damage marks the accrual of the cause of action, rather than the date of the allegedly negligent act or omission. Sections 75(1) & (2) of the VCAT Act, 1998 provide:

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

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

(b) is otherwise an abuse of process.

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

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