Skinner’s Case  VCAT 917, a claim against a leading labour law firm, was for some reason heard in VCAT’s Civil List. A more likely list would have been the Legal Practice List, given that it was a professional negligence claim, albeit one pleaded under the Fair Trading Act, 1999 and the Trade Practices Act, 1974. But Mr Skinner, a self-represented litigant with an enthusiasm for internet research and a copy of Pizer’s Annotated VCAT Act under his arm, came up against the Acting President, Judge Bowman, who turfed his $400,000+ claim out as doomed to fail and as an abuse of process. Yet another failed regretted settlement claim bites the dust. The only pity is that this proceeding was allowed to wallow for 2 years, while repeated directions of the Tribunal requiring witness statements and an intelligible statement of claims against the solicitors were ignored. The solicitors did not claim advocates’ immunity in respect of the suit, despite the availability of such a plea: Biggar v McLeod  2 NZLR 9; O’Connor-Sraj v Lawrence  VCC 1093.
Mr Skinner had had a dispute with the vendor and financier of a refrigerated truck. He had paid $14,000 and had another $50,000 or so to go. The vendor agreed to take the truck back, waive the remaining payments owing under the contract, and pay him $4,000, but it kept the $14,000 he had already paid. That settlement occurred at a mediation in October 2003 before a December trial. One wonders whether the presumably confidential settlement was disclosed with the consent of the vendor of the truck, and I suspect not. As a result, he said, he lost a job and two rental properties. So he had sued his solicitors in the Legal Profession Tribunal. It had dismissed his suit. When that Tribunal was abolished and VCAT’s Legal Practice List was established, he decided to have another go there.
The solicitors applied for dismissal pursuant to s. 75 of the VCAT Act, which provides:
‘Summary dismissal of unjustified proceedings
(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.’
and s. 78, which provides:
‘Conduct of proceeding causing disadvantage
(1) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding …
(2) If this section applies, the Tribunal may- (a) order that the proceeding be dismissed or struck out …’.
The solicitors submitted that:
‘Mr Skinner settled his case, and settled it following discussion of the costs of the proposed litigation, and in private session with the mediator. He cannot now say that he should not have settled it because at the time he did not have certain material, and now pursue [the solicitors] because of this. What he should have done was simply instruct his solicitors and barrister either to adjourn the mediation, or to leave with the matter not settled. If necessary, he could have sacked his solicitors, as he did with [his previous solicitors]. In this case, it is an inescapable conclusion that he settled the matter on his own terms. It was his decision. The one allegation that is not made is that Mr Skinner was stood over or coerced to settle, against his better judgment, by either [his solicitors] or by counsel.’
Acting President Bowman held that the appropriate test was stated by Deputy President McKenzie in Norman v Australian Red Cross Society (1998) 14 VAR 243: for a dismissal or strike out to succeed, the proceeding must be:
- obviously hopeless or bound to fail,
- obviously unsustainable in fact or in law,
- unable to justify relief on any reasonable view.
His Honour held that Skinner’s application was ‘totally misconceived and lacking in substance’. At , he accepted the solicitors’ arguments:
‘Mr Skinner’s application fails to disclose any reasonable cause of action and is bound to fail. On no reasonable view can the proceeding justify relief. His application, which has been on foot for some time, simply fails to identify what [the solicitors] have done wrong [or] which failing or error has been productive of a resultant defined loss. Counsel was briefed, appropriate material obtained, no improper pressure was applied to Mr Skinner, and he settled the matter on his own terms and of his own volition. If [the solicitors] did do something that was erroneous, negligent or non-professional, and I struggle to see that there was any such behaviour, it would then seem to have available to it virtually a complete defence based upon the circumstances of the settlement. Mr Skinner does not suggest that he sought to adjourn the mediation or that he asked for more time. He did not walk away with the matter unsettled. He did not sack his solicitors or his counsel. He settled the matter privately and on terms known to him. There is no suggestion that the terms were of such a nature that he could not understand them. As stated, I accept that he settled his case of his own volition and with there being no suggestion of improper pressure being placed upon him.’
Furthermore, it was an abuse of process, even though the solicitors for did not assert that there was a res judicata flowing out of the Legal Profession Tribunal’s earlier decision in relation to overlapping allegations of negligence in relation to the same settlement, albeit pleaded as a different cause of action. Acting President Bowman held, correctly, and with appropriate fortitude that:
’31 There should be an end to litigation. A proceeding is an abuse of process if it could be characterised as seeking to re-agitate issues that had, as a matter of substance, already been determined in prior decisions – see, for example, [Julian] Knight v CORE (2003) 20 VAR 89. That approach seems to me to be applicable in the present case. Mr Skinner is seeking to re-agitate issues that have already been determined as a matter of substance. The applications do not overlap entirely, but they seem to me to overlap substantially and to the extent that the present application represents an abuse of process.’
Sounds awfully like a res judicata, issue estoppel, Anshun estoppel, or a combination of them to me. Same parties, same case, differently dressed up. If Skinner had alternative concurrent remedies, he must have been taken, in the Legal Profession Tribunal, to have elected to pursue one of them, so that each other such remedy would also be the subject of the litigation estoppel which applied to the one he elected to puruse.