IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMERCIAL COURT JUDICIAL REVIEW AND APPEALS LIST S 2016 03782 BETWEEN THANASIS RAPTIS Plaintiff and CITY OF MELBOURNE First Defendant and 333 CHOICE PROPERTIES PTY LTD (ACN 076 468 472) Second Defendant SECOND DEFENDANT’S OUTLINE OF SUBMISSIONS (Filed pursuant to the orders of the Honourable Associate Justice Mukhtar made on 14 October 2016) Introduction and background 1

These submissions are made by the Second Defendant (333 Choice) in support of the orders set out in the Summons dated 10 November 2016 (the Summons). By the Summons, 333 Choice, seeks: (a)

the dismissal or a permanent stay of the proceedings on the basis that the Court does not have jurisdiction; or

(b)

alternatively, that the Plaintiff’s (Raptis) claim be struck out on the basis that it does not disclose a cause of action, is scandalous, frivolous or vexatious, may prejudice the fair trial of the proceeding and is otherwise an abuse of process.

2

333 Choice relies on the affidavits of Charles George Gardiner sworn 13 October 2016 (the Gardiner Affidavit) and Phillip Richard Garrett dated 10 November 2016 (the Garrett Affidavit).

3

The following affidavits have been served by Raptis in this proceeding: affidavits dated 15 September 2016 (the First Affidavit), 14 December 2016 (the Second Affidavit), 4 January 2017 (the Third Affidavit), 18 January 2017 (the Fourth

2

Affidavit), 2 February 2017 (the Fifth Affidavit), 6 February 2017 (the Sixth Affidavit) and 27 February 2017 (the Seventh Affidavit). 4

The proceeding was commenced by Originating Motion dated 15 September 2016 (OM). The OM relevantly states under the heading “relief sought”: “The immediate return of the rent paid to now and release of the bank guarantee amount covering 6 months of the lease, based on the absence of the Occupancy Permit for use of the premise’s [sic] as a cafe.”

5

The orders sought in the OM include the following: “3. An order to restrain the breach pursuant to Section 253 (2) (a), that the leased premises occupied and used by Blu Nite breach Section 40 (1) of the Building Act 1993 Division 1 of Part 5 and Regulation 1011(1) of the Building Regulations 2006.

6

4.

Any necessary ancillary orders, pursuant to Sect 253 (2) (d) as the Court thinks fit, referencing the affidavit with its exhibits.

5.

A declaration that Blu Nite needs an Occupancy Permit as agreed upon in the 333 Collins Street building development ‘agreement’ of the 1988 Planning Minister – State Government approval issued by City of Melbourne, reference paragraph 5 of the Affidavit and EXHIBIT 07 – SUPREME COURT OF VICTORIA – No. 2584 – Dated 6 and 7 February 1991.

6.

An order to initiate subsequent legal action against 333 Choices [sic] Properties P/L evaluating the economic, social and environmental impact to the plaintiff resultant to Paragraphs 3, 4 & 5 above.

7.

Such further or other orders as the court thinks fit.”

The orders sought in the OM are mirrored in the Summons on Originating Motion dated 15 September 2016.

7

A directions hearing was held on 14 October 2016 before the Honourable Associate Justice Mukhtar (the Directions Hearing). During the Directions Hearing, his Honour made various timetabling orders in connection with foreshadowed applications by the defendants and engaged in detailed exchanges with Raptis in relation to the claims and relief in this proceeding.

8

A Notice of Appeal dated 28 October 2016 sought to be issued by Raptis in relation to the orders made at the Directions Hearing was refused acceptance for filing1.

1

Ruling of Justice Keogh delivered on 7 November 2016

3

The governing Lease documents 9

The following lease documents are not in dispute.

10

On or around 27 July 2010, 333 Choice entered into a lease (Lease) with Eros Holdings (Aust) Pty Limited (Eros) as tenant for the property known as Rear Ground Floor, 333 Collins Street, Melbourne (Premises)

11

On or around 27 November 2014, 333 Choice agreed to an assignment of the Lease by Eros to Raptis following the purchase by Raptis of the business owned and operated by Eros from the Premises (Transfer).

12

On 25 August 2015, 333 Choice and Raptis entered into a deed of renewal and variation of lease, whereby 333 Choice agreed to renew the Lease for the Premises for a further five year term, commencing on 1 August 2015 on the terms and conditions set out in the deed (Renewal).

The Renewal included a provision

concerning the operability of extraction and exhaust systems at the Premises. Relevant legal principles Justiciability over retail tenancy disputes 13

The Court has jurisdiction to stay or dismiss a proceeding2.

14

Section 89 of the Retail Leases Act 2003 (Vic) (RLA) provides that: (1)

The Tribunal has jurisdiction to hear and determine an application by any of the following persons seeking resolution of a retail tenancy dispute (a)

a landlord or tenant under a retail premises lease;

… (2)

In an application under subsection (1) for forfeiture or relief against forfeiture (whether or not for non-payment of rent), the Tribunal has the same jurisdiction, including equitable jurisdiction, and powers as to the Supreme Court has in relation to proceedings for forfeiture or relief against forfeiture. …

(4)

2

Subject to section 23(4) (key-money and goodwill payments prohibited), a retail tenancy dispute other than – (a)

an application for relief against forfeiture; or

(b)

a claim under Part 9 (Unconscionable Conduct); or

See Rule 23.01 and also the Court’s inherent jurisdiction: Dey v Victorian Railways Cmrs (1949) 78 CLR 62

4

(c)

a retail tenancy dispute referred to in section 81(1A) –

is not justiciable before any other tribunal or a court or person acting judicially within the meaning of the Evidence (Miscellaneous Provisions) Act 1958. 15

A “retail tenancy dispute” is relevantly defined in s 81 of the RLA as “a dispute between a landlord and a tenant … arising under or in relation to a retail premises lease to which this Act applies…” but excluding “a dispute solely relating to the payment of rent or a dispute that is capable of being determined by a specialist retail valuer …”3.

16

A “lease” includes a former lease4 and retail premises “means premises, not including any area intended for use as a residence, that under the terms of the lease relating to the premises are used, or are to be used, wholly or predominantly for the … the sale or hire of goods by retail or the retail provision of services…”5.

17

In State of Victoria v Tymbook Pty Ltd6, Byrne J said: The scheme of the 2003 Act appears to be that the dispute resolution procedures of Part 10 have a far wider application than the rest of the Act. Accepting that s.11 limits the application of the Act generally to certain leases entered into after 1 May 2003, the wide definition of “retail tenancy dispute” in s.81 clearly extends to disputes arising under other leases and to retail premises other than the premises referred to in s.11(2). The jurisdiction of the Tribunal under s.89(1), which depends upon an application seeking the resolution of a retail tenancy dispute, is similarly extensive. The consequence of this, having regard to s.89(4) is that, subject to the stipulated exceptions, such a dispute is not justiciable in this Court7. (citations omitted) (emphasis added)

18

In Tymbrook, Byrne J held that the proceeding was not justiciable in the Supreme Court because the dispute between the landlord and tenant involving access and inspection rights under the lease was a retail tenancy dispute within the meaning of s.81 of the RLA. Accordingly, his Honour dismissed the proceeding.

19

More recently in Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd8, Croft J, citing Tymbrook, said:

3 4 5 6 7 8

s.81 of the RLA s.3 of the RLA s.4 of the RLA [2005] VSC 267 Ibid, at [11] [2013] VSC 344; see also Bimem Nominees Pty Ltd v Methven Croydon Pty Ltd [2016] VSC 473 at [22] where it was common ground that the Tribunal had exclusive jurisdiction to determine the dispute pursuant to s.89 of the Retail Leases Act. The proceeding involved an appeal from a decision of VCAT.

5

The application for a declaration that the Premises is “retail premises” for the purposes of the Act has jurisdictional significance for the future conduct of the substantive dispute or disputes between the parties. If the Lease of the Premises is a lease of “retail premises” governed by the provisions of the Act, any “retail tenancy dispute” in relation to the Premises must be heard and determined by the Victorian Civil and Administrative Tribunal (“VCAT”), subject to any applicable exceptions, on the basis VCAT has exclusive jurisdiction to hear and determine a “retail tenancy dispute”9. (citation omitted) (emphasis added) 20

Croft J also set out the relevant principles in relation to the meaning of “retail premises”: The expression “retail premises” has been considered by the courts in a variety of circumstances. The story conveniently begins with a “cabaret, restaurant and/or discotheque” in Swanston Street, Melbourne, with 535 Swanston Street Pty Ltd v Habrut Pty Ltd. In considering the meaning of “retail” in this context Kaye J said: I have been referred to several definitions by authorities of what is described is described as retail shop and retail trade. Perhaps the most succinct statement from which assistance is to be derived is from that made by Viscount Dunedin in his speech in Turpin v Middlesborough Assessment Committee and Kaye & Eye Brothers [1931] AC 45 at 474. His Lordship then said, referring to buildings, that they were buildings to which the public can resort for the purpose of having particular wants supplied and services rendered to them. It is, in my view, clear that the demised premises fall within that description of being available to members of the public for the purposes of having their food and drink requirements supplied and services of discotheque entertainment provided to them. Accordingly, in my view, the demised premises are retail premises within the meaning of the Act. In Wellington v Norwich Union Life Insurance Society Limited, … Nathan J said: “The essential feature of retailing, is in my mind, the provision of an item or service to the ultimate consumer for fee or reward. The end user may be a member of the public, but not necessarily so. … Subject to the proper characterisation of the “service” that is being provided the authorities do indicate strong support for the “ultimate consumer” test as the touchstone of retailing. The cases tend to be concerned with whether or not goods are being sold by retail and although the same characterisation issues as apply to services to exist, they tend not to be focused upon as the position is likely to be more obvious with goods.10

21

Croft J held in Fitzroy Dental that the premises in question comprising a café/restaurant at the front and a conference centre at the rear were “retail premises”.

9 10

See also Australian Liquor Marketers Pty Ltd v Twenty 12 Pty Ltd [2014] VCC 688 at [25] per MacNamara J Ibid, at [6] Ibid, at [15] – [17]

6

Defective indorsement 22

Rule 5.05 of the Supreme Court (General Civil Procedure) Rules 2005 (the Rules) provides that: An originating motion shall specify –

23

(a)

the relief or remedy sought and the Act, if any, under which the claim is made; and

(b)

where it includes any question to be answered, the question shall be stated.

Rule 23.02 of the Rules provides that: Where an indorsement of claim on a writ or originating motion or a pleading or part of an indorsement of claim or pleading – (a)

does not disclose a cause of action or defence;

(b)

is scandalous, frivolous or vexatious;

(c)

may prejudice, embarrass or delay the fair trial of the proceeding; or

(d)

is otherwise an abuse of the process of the court –

the Court may order that the whole or part of an indorsement or pleading be struck out or amended. 24

The rule concerns the sufficiency of the indorsement and whether it is defective because it discloses no cause of action, is scandalous, frivolous or vexatious, may prejudice the fair trial of the proceeding or is otherwise an abuse of the court.

25

This is consistent with the overarching obligations imposed on parties to litigation under s 18 of the Civil Procedure Act.

26

The purpose of the rule is to ensure that the claim is amended and presented in a proper way11 and applies where the pleading is unintelligible, ambiguous, vague or too general12. A pleading is embarrassing when it places the opposite party in the position that he or she does not know what is alleged against him or her13.

This proceeding involves a retail tenancy dispute The premises are retail premises 27

The evidence concerning this issue is clear and largely uncontroverted.

11

Annesley v Westpac Banking Corp [2016] VSC 323 at [70] Vo v Nguyen [2013] VSC 304; Annesley v Westpac Banking Corp [2016] VSC 323 at [94] – [96] Gunns Ltd v Marr [2005] VSC 251 at [15]

12 13

7

28

In July 2010, the Lease was entered into with the original tenant, Eros. In November 2014, Raptis obtained an assignment of a lease and has continued in occupation of the Premises pursuant to the Lease14. The permitted use of the premises is a “coffee shop, bistro (not white table) and the retail sale of takeaway food”15.

29

Since commencing his tenancy, the uncontroverted evidence is as follows16: (a)

Raptis has traded as a coffee shop under the name “Blue Nite” café which business includes the retail sale of food and beverages;

(b)

Blue Nite customers purchased food and beverages from the Premises;

(c)

customers include individual and corporate customers;

(d)

A number of staff have worked at the Premises;

(e)

the Premises has a capacity of approximately 50 customers;

(f)

Raptis has continuously promoted the food and café services offered at the Premises on his website;

(g)

the Premises have always been used as a café business open to members of the public.

30

Further, during the Directions Hearing, Raptis confirmed that he worked in the restaurant at the Premises17.

31

These matters demonstrate that Raptis has during the period of the Lease provided food and beverage services to the ultimate consumer for fee or reward. Accordingly, the premises are retail premises within the meaning of the RLA.

“Retail tenancy dispute” 32

333 Choice submits that the proceeding involves “a retail tenancy dispute” within the meaning of s.81 of the RLA. The conclusion is unavoidable from a consideration of the correspondence between the parties, the relief sought by Raptis in the OM, relevant exchanges at the Directions Hearing, and the claims ventilated in Raptis’ extensive affidavit material.

14 15 16 17

[3] – [6] of the Garrett Affidavit [8] of the Garrett Affidavit [9] – [13] of the Garrett Affidavit T7.17-18

8

33

The correspondence between 333 Choice and Raptis prior to commencement of the proceeding is set out in the Gardiner Affidavit. In essence, it shows that: (a)

Raptis made complaints about the extraction and exhaust system at the Premises which were investigated and responded to by 333 Choice18;

(b)

Raptis made complaints in connection with occupancy issues with a large number of regulatory and government bodies. 333 Choice is unaware of any finding, decision or action taken by any regulatory body supporting these complaints19.

34

In this proceeding, the relief sought by Raptis is a return of rent already paid, a release of the bank guarantee and the orders sought include restraints, declaratory relief and an order “to initiate legal action against 333 Choices [sic] Properties P/L evaluating the economic social and environmental impact to the plaintiff.”

35

There is no other claim made by Raptis in relation to the Lease or his tenancy.

36

During the Directions Hearing, his Honour and Raptis engaged in the following exchanges:

18 19

His Honour:

You are not saying that. All right. What do you say – where do you say is their obligation to you to fix the problem?

Mr Raptis:

I do say that the lease should not exist in the first instance because it’s illegality put in place.

His Honour:

So are you looking to set aside the lease, tear it up, which means you are asking a court to say to you “You’re excused from the lease and any further obligations. You can treat the lease as if it never existed”.

Mr Raptis:

I will try to answer the best that I can.

His Honour:

Yes.

Mr Raptis:

Over the 20 months I ran the operation of the café, it started as an extraction issue, but very quickly I realise that it is the legality issue. The extraction - - -

His Honour:

I am going to interrupt to you. Can we just put out of minds the illegality.

Mr Raptis:

Okay.

His Honour:

Do you work in the restaurant?

At [14] – [19], [25] – [26] and the exhibits referred to At [21] – [24], [27]

9

Mr Raptis:

I am there yes.

His Honour:

So the problem really is the extraction system is not working?

Mr Raptis:

Part of the problem.

His Honour:

All right. What is the other part of the problem?

Mr Raptis:

It says I put as a final application for the hearing when I filed the originating motion, I sought to particular breaches. One is breach 40 section 1 of the Building Act which is a place must not be occupied in contravention to the occupancy certificate - -

His Honour:

That means you should not be in occupation if you are right.

Mr Raptis:

Correct.

His Honour:

So what are you asking – what I want to know is, what are you asking the court to do should you succeed.

Mr Raptis:

To identify the breach and restrain the breach. When I went there to the coffee shop or when I enter into that agreement I didn’t realise what I’m getting into. I didn’t realise that the lease premises are not suitable to be leased.

[T6.29-8.6] … His Honour:

… As a practical matter, what are you asking the Court to do for you should you succeed?

Mr Raptis:

To not occupy the building. My part of the restaurant. To shut down the restaurant.

His Honour:

So you are asking that you be excused from any further obligations under the lease?

Mr Raptis:

I’m not referring to the lease.

His Honour:

No, no, I’m talking about – your relationship is under the lease. That is why you are there, and that’s the source of all legal responsibilities, so I want to know are you asking to be excused from the lease?

… His Honour:

You say the whole lease is illegal? That leads me to think what you want to say to the court is therefore tear it up so that you can leave.

Mr Raptis:

What I’m saying is that the lease shouldn’t be – the premises shouldn’t be leased in the first instance.

His Honour:

Well, that means that you shouldn’t be there either.

Mr Raptis:

Correct.

His Honour:

So are you looking to get out of the lease, is what I’m saying?

Mr Raptis:

That is not why I came here.

His Honour:

So why did you come here is what I am asking?

10

Mr Raptis:

Because to identify the breaches and I’m saying to the court which is the best way to apply the law?

… His Honour:

What orders do you want the Court to make?

Mr Raptis:

To initiate legal proceedings for compensation.

His Honour:

You would bring those proceedings?

Mr Raptis:

No, it will be a firm or I’m trying to get a solicitor on my side. I don’t understand the question, Your Honour.

His Honour:

No, no. But you’ve brought a proceeding.

Mr Raptis:

I did. And in this proceeding and in this hearing, I was seeking orders, identify the two breaches, the Building Act and the Regulatons 1011, - - -

His Honour:

But you are a tenant. Say you established the breaches, what do you want to then go on and do in this case?

Mr Raptis:

To have a declaration that the occupancy certificate is needed to operate, to occupy properly the premises and after that a further order to initiate further legal proceedings.

… His Honour:

You want the return of your rent paid.

Mr Raptis:

Correct.

His Honour:

Yes, and you want the bank guarantee.

Mr Raptis:

Because the business that they operation, in my view, Your Honour, it’s illegal at this point in time.

… His Honour:

So are you saying therefore “I cannot carry out my business for which I took out a tenancy?”

Mr Raptis:

Correct. To restrain the Court to restrain that breach and to be refunded the money that I paid up to now.

His Honour:

So you want to get out of the lease? because “I can’t run my business”.

Mr Raptis:

There’s no future in the business. I cannot sell it. There is no better way to explain to you. Your Honour. If the business, I believe and it is – and I’m trying to prove that it’s illegal. Not only the business, to operate as a business there. It is illegal. Also its – I cannot in the future if I choose to do so, I cannot sell any legal business.

You want to leave

[T8.11 – 14.7] … His Honour:

Mr Raptis, I think I have got the basic elements. So there’s no doubt about this. I am going to restate them. You are saying it is not a case of a breach of the lease.

Mr Raptis:

Essentially, it is, at the end, because if the lease its established illegally, there is no lease.

11

His Honour:

Which means the relief you want is to be able to leave the premises, correct.

Mr Raptis:

Yes, and return my money.

His Honour:

So you want all your rent that you paid?

Mr Raptis:

Correct.

[T20.10-20] …. Mr Raptis:

I don’t want to go back, and that’s what it is.

His Honour:

I don’t think – please understand. If I have got no jurisdiction to even decide the case at all, then I have got no jurisdiction to restrain them, and plus who am I restraining? I am just – no – one is forcing you to run the business. If you don’t want to run the business you regard it as a public hazard, then you do as you think fit.

Mr Raptis:

It is a public hazard.

… His Honour:

No, but look, here’s my – I will not grant a restraining order because there’s a serious question on its face whether this court has got jurisdiction. In any event, I am willing to say this, any application to restrain would likely be refused because it’s not as if they doing something now which is illegal or which needs restraining. The only person in whose hands it lies to stop an unlawful business being conducted is yours, so you restrain yourself. If you want to restrain yourself, then that will be there I don’t think you have thought this through, with respect.

[T45.12-46.7]

37

These exchanges demonstrate that Raptis is seeking a return of rent already paid, orders allowing him to commence further legal proceedings against 333 Choice for damages to be assessed and orders that would otherwise enable him to avoid his obligations under the Lease because he sees no future in the business. Further, the primary basis for this relief is a perception or belief that the Lease should never have been entered into because it was unsuitable, it could not be lawfully occupied as a café/restaurant and he should have been told this.

38

Further, the affidavit material filed by Raptis discloses the following complaints: (a)

complaints concerning ductwork connecting the Premises and premises at the front of 333 Collins Street occupied by Strozzi Ristorante Cafeteria and in particular that the exhaust fan and exhaust canopy did not meet relevant

12

Australian Standards and were inadequate for cooking activities conducted at the Premises20; (b)

a complaint that 333 Choice withheld information concerning the suitability and use of the Premises as a restaurant ‘likely to have an impact on the Tenant’s proposed business’ contrary to a declaration signed by 333 Choice on 13 November 200921;

(c)

a complaint that 333 Choice misled Raptis by reason of the Premises not being certified for use as a restaurant in breach of Raptis’ rights to quiet enjoyment under the Lease22;

(d)

a complaint that Raptis is ‘forced to operate a food business in an uncertified and non-compliant café/restaurant’23;

(e)

a complaint that 333 Choice has not met the requirements of the Building Act24;

(f)

a complaint that there is no lawful lease documentation25;

(g)

a complaint that Raptis’ property and human rights have been violated affecting the business’s financial performance26;

(h)

a claim that the business needs to be restrained because of the standard of care required under the Wrongs Act27.

39

Finally, following the issue of a Notice of Default dated 16 January 2017, 333 Choice re-entered the Premises and terminated the Lease with effect on 3 February 201728. Raptis has not sought to challenge the validity of the termination or to re-enter the Premises on any interlocutory or final basis. The only foreshadowed application was as follows: “The Tenant/Plaintiff seeks the Court to issue an urgent interlocutory restraining order preventing the Landlord re-entering the premises prior 6 March 2017, such that the non-complaint/illegal restaurant kitchen’s exhaust

20 21 22 23 24 25 26 27 28

First Affidavit, pp 17-19, 22-23 First Affidavit, pp 20 – 21; Third Affidavit pp 17 – 20, 28 - 32 Third Affidavit pp 19, 28 - 29 First Affidavit pp 23 - 24 Second Affidavit pp 8 -9; Third Affidavit pp 5-14 Third Affidavit pp 21 - 24 Third Affidavit pp 32- 3 Third Affidavit pp 34 -37 Fifth Affidavit

13

services duct work fit out not be interfered with given its material evidence to Application SCI 2016 03782.” 40

No application has been made by Raptis.

41

The above evidence establishes that there is a dispute between Raptis, as tenant, and 333 Choice, as landlord, in connection with the following two critical issues: (a)

the suitability of exhaust and extraction systems at the Premises;

(b)

the alleged non-disclosure of material information and misrepresentations concerning the suitability and use of the Premises for a café/restaurant because the Premises cannot lawfully be used as a café/restaurant.

42

It cannot be said that the dispute solely concerns rental or involves matters which are justiciable by the Court.

43

In these circumstances, it is clear that this proceeding constitutes and involves a retail tenancy dispute within the meaning of s 81 of the RLA.

Matters not justiciable 44

The dispute the subject of the proceeding is a retail tenancy dispute, in respect of which, the Tribunal has exclusive jurisdiction. justiciable in this Court.

Accordingly, the matter is not

For this reason, the proceeding should be permanently

stayed or dismissed as against 333 Choice. The indorsement on the originating motion is defective 45

Alternatively, if contrary to the above submissions the Court finds that it does have jurisdiction over the proceeding, for the reasons set out below, the OM should be struck out.

46

The OM is defective and cannot be allowed to proceed.

47

First, the relief sought is the return of rent already paid and a bank guarantee. However, the legal and factual basis for that relief is unclear. The OM does not refer to the Lease or any relevant legislation as required by Rule 5.05.

48

The summary refers to various non-compliances and the need for an occupancy certificate but does not tie or establish how that conduct supports the relief sought. The affidavit material (as summarised above) does not clearly articulate the factual or

14

legal basis for the relief sought either. The relevant exchanges during the Directions Hearing confirmed that Raptis’ complaints related to occupancy, rent and the exhaust and extraction systems. However, there was no proper articulation of the basis for recovery of rent or an order allowing him to leave the Premises. 49

Given the ultimate relief sought, this type of proceeding (if it were to proceed in the Supreme Court), Raptis’ relief and the grounds for relief need to be properly articulated through amendments to the OM. Further, given the serious and complex nature of the complaints made by Raptis, it may be appropriate for it to continue by way of pleadings so that 333 Choice may readily understand, and meet Raptis’ case at trial.

50

Secondly, it is unclear whether proposed orders 3 to 5 are directed solely against the First Defendant or whether they are also directed toward 333 Choice. In this regard, it is unclear what legal basis and standing Raptis could have to pursue injunctions, declarations and ancillary orders against 333 Choice under the relevant building legislation. If these orders are limited to orders against the First Defendant, this should be clarified. This is, of course, subject to the Court determining the First Defendant’s current application against Raptis.

51

Thirdly, Raptis seeks an order “to initiate legal action against 333 Choices [sic] …evaluating the economic, social and environmental impact to the plaintiff”29.

A

proceeding has already been commenced. If Raptis seeks compensation from any wrongdoing, such a claim should be brought and determined in this proceeding, not in some possible future proceeding. Such an approach, if permitted, would be contrary to the overarching obligations under the Civil Procedure Act 2010 and to the wellestablished principles set out in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 52

In Vakras v Cripps30, Davies J summarised the relevant principles as follows: An Anshun estoppel … arises where the matter relied upon as a defence or claim in the second action was so connected to the subject matter of the first action as to have made it unreasonable in the context of the first action for the claim not to have been made, or the issue not to have been raised, in that action … Generally speaking, it would be unreasonable not to raise a claim, if, having regard to the nature of the plaintiff’s claim and its subject matter, that claim properly belonged to the subject of the earlier litigation and which a

29 30

See proposed order 6 [2016] FCA 955

15

party, exercising reasonable diligence, could have brought forward at the time of the earlier litigation, thereby enabling the relevant issues to be determined in the one proceeding31 53

Similar principles were set out in Walton v Gardiner32 where the High Court held that the continuance of proceedings could constitute an abuse of process where it “sought to litigate anew a case which [had] already been disposed of by earlier proceedings”33.

54

It may be that Raptis is seeking some type of advisory opinion or declaration from the Court on what breaches (if any) 333 Choice has engaged in.

Without clearly

identifying the alleged breach or question(s) that the Court is being asked to determine or answer, it is not clear what the Court is being asked to do.

The

Directions Hearing discloses that Raptis is unsure what he should be doing in relation to litigating his grievances in this Court and is essentially asking the Court to investigate suspected wrongdoing. The Court clearly has no jurisdiction, and it would be clearly inappropriate for the Court, to perform this investigative task. 55

Further, whether to issue a damages claim in the Supreme Court of Victoria is a matter solely for Raptis provided he complies with the rules and procedures circumscribed by the Rules and the Civil Procedure Act. It is not appropriate, nor is there is any clear legal basis, for the Supreme Court to direct, allow or authorise Raptis to issue a legal action against 333 Choice and assess its “economic, social and environmental” impact.

2 March 2017

C. H. TRUONG Counsel for the Second Defendant Arnold Bloch Leibler Solicitors for the Second Defendant

31 32 33

At [38] (1993) 177 CLR 378 At 393 per Mason CJ, Deane and Dawson JJ