Hall v Craig

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 04 November 2022
• Neutral Citation: [2022] FCA 1312
• Date: 04 November 2022

Federal Court of Australia

Hall v Craig [2022] FCA 1312

File number(s):	NSD 728 of 2021
Judgment of:	PERRY J
Date of judgment:	4 November 2022
Catchwords:	PRACTICE AND PROCEDURE – application for summary dismissal under s 31A, Federal Court of Australia Act 1976 (Cth) and r 26.01, Federal Court Rules 2011 (Cth) – where injunction sought under s 232, Australian Consumer Law (ACL) prohibiting enforcement of NCAT eviction order made by consent – where tenant sought declarations of misleading and deceptive conduct and unconscionable conduct under ss 18 and 21, ACL – where tenant alleged breach of s 25, Disability Discrimination Act 1992 (Cth) (DDA) by landlord and property agent – where procedures for redress under DDA established under Australian Human Rights Commission Act 1986 (Cth) – where proceeding has no reasonable prospects of success – where proceeding is frivolous and vexatious, fails to disclose a reasonable cause of action, and constitutes an abuse of process – proceeding summarily dismissed ; COSTS – Whether Court ought to exercise discretion to award indemnity costs – where high-level allegations were baseless, vexatious, frivolous and without merit – where respondents offered at an early stage to have the matter discontinued with no order as to costs – where applicant was given express notice of intention to seek indemnity costs – application for indemnity costs granted
Legislation:	Constitution ss 76, 109 Australian Human Rights Commission Act 1986 (Cth) ss 3, 46P, 49PO Competition and Consumer Act 2010 (Cth) sch 2 (Australian Consumer Law) ss 18, 21, 22, 60, 232 Disability Discrimination Act 1992 (Cth) ss 4, 25 Federal Court of Australia Act 1976 (Cth) s 31A Federal Court Rules 2011 (Cth) rr 25.01, 26.01 Residential Tenancies Act 2010 (NSW) s 85, 97
Cases cited:	Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liq) [2007] FCAFC 146; (2007) 161 FCR 513 Australian Competition and Consumer Commission v Phoenix Institute of Australia Pty Ltd (Subject to Deed of Company Arrangement) [2021] FCA 956 Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 Brymount Pty Ltd t/as Watson Toyota v Cummins (No 2) [2005] NSWCA 69 Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 Picos v Australian Federal Police [2015] FCA 118 Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 Shammas v Canberra Institute of Technology [2014] FCA 71 Wills v Chief Executive Officer of the Australian Skills Quality Authority (Costs) [2022] FCAFC 43
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	75
Date of last submission:	2 December 2021
Date of hearing:	19 October 2021
Counsel for the Applicant	The applicant appeared in person
Solicitor for the Respondents	Mr R Foster of RMB Lawyers

ORDERS

		NSD 728 of 2021
BETWEEN:	DANIEL HALL Applicant
AND:	TOBY CRAIG First Respondent ; INTEGRITY REAL ESTATE NOWRA PTY LTD Second Respondent

order made by:	PERRY J
DATE OF ORDER:	4 November 2022

THE COURT ORDERS THAT:

1. The applicant’s application for summary judgment is dismissed.

2. The applicant’s amended originating application is dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1) of the Federal Court Rules 2011 (Cth).

3. The applicant is to pay the respondents’ costs on an indemnity basis.

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

REASONS FOR JUDGMENT

PERRY J:

1 INTRODUCTION	[1]
2 RELEVANT PRINCIPLES: SUMMARY DISMISSAL	[7]
3 BACKGROUND	[13]
4 THE APPLICANT’S PLEADINGS	[25]
5 THE RESPONDENTS’ APPLICATION FOR SUMMARY DISMISSAL	[31]
5.1 The application for injunctive relief	[31]
5.2 The application for declaratory relief	[40]
5.3 Damages and other relief sought	[52]
5.4 Further allegations made by the applicant in his submissions	[53]
6 THE APPLICANT’S APPLICATION FOR SUMMARY JUDGMENT	[57]
7 THE RESPONDENTS’ APPLICATION FOR INDEMNITY COSTS	[61]
7.1 Introduction	[61]
7.2 Facts relied upon in support of the application for indemnity costs	[63]
7.3 The parties’ submissions	[68]
7.4 An order for indemnity costs should be made	[72]
8 CONCLUSION	[75]

1. INTRODUCTION

1. The applicant, Daniel Hall, leased residential premises in Nowra, New South Wales, from the first respondent, Toby Craig, pursuant to a residential tenancy agreement. The second respondent, Integrity Real Estate Nowra Pty Ltd, is Mr Craig’s property agent and was relied upon by him to administer the property.

2. The respondents seek summary dismissal of the amended originating application filed by Mr Hall (OA) under s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and rr 26.01(1)(a), (b), (c) and/or (d) of the Federal Court Rules 2011 (Cth) (FCR) on the ground that Mr Hall has no reasonable prospects of success in prosecuting the proceeding. The respondents also seek their costs on an indemnity basis. In support of their interlocutory application, the respondents rely upon the following evidence:

1. the affidavit of Robert James Bruce Foster sworn on 9 August 2021 (Foster affidavit);

2. the affidavit of Lisa Mullins sworn on 9 August 2021 (first Mullins affidavit);

3. the affidavit of Toby Craig sworn on 9 August 2021; and

4. the affidavit of Lisa Mullins sworn on 22 October 2021.

3. No evidence was filed by Mr Hall in response. Mr Hall also made an oral application at the case management hearing on 19 October 2021 that summary judgment be given against the respondents.

4. Orders were made on 19 October 2021 setting a timetable for the parties to file and serve evidence on the interlocutory applications. However, Mr Hall did not file any affidavit in support of his application for summary judgment or in response to the respondents’ interlocutory application.

5. Detailed written submissions were filed by all parties on the respondents’ application for summary dismissal, and the interlocutory application was decided on the papers with the agreement of all parties.

6. For the reasons set out below, Mr Hall’s amended originating application has no reasonable prospects of success, is frivolous and vexatious, fails to disclose a reasonable cause of action, and constitutes an abuse of process. The originating application should be dismissed with costs on an indemnity basis. There was also no merit in Mr Hall’s application for summary judgment against the respondents.

2. RELEVANT PRINCIPLES: SUMMARY DISMISSAL

7. Section 31A of the FCA Act relevantly provides that:

(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no...