APPLICANT QUESTIONS THE TRIBUNAL’S SUMMARY DISMISSAL OF HIS CLAIM FOR DAMAGES
Kukulka v Floatcast Technology Pty Ltd [2021] VSC 107 (11 March 2021)
This is an application for leave to appeal from a decision of Victorian Civil and Administrative Tribunal (VCAT) granting summary dismissal of claim for damages. Plaintiff alleges that the Tribunal erred in law by wrongly determining the summary dismissal of the proceeding on the balance of probabilities.
Facts:
On 19 September 2017 the applicant commenced proceedings at the Victorian Civil and Administrative Tribunal (VCAT) against the respondent, seeking damages from a dispute over the supply of webhosting services.
He claimed that he engaged Floatcast to provide hosting services for 16 websites in 2015. He uploaded content to some of those websites. On 24 July 2017, the respondent suspended the service, denied him access and thereafter refused to return the uploaded content and data to Mr Kukulka. Not having backed up the information that was uploaded, the applicant incurred costs in reconstructing the web content in order to host the pages elsewhere and sought damages for that loss.
The applicant now seeks leave to appeal from order of VCAT summarily dismissing his claim under s.75. The applicant identifies error in the Tribunal’s construction and/or application of the test for summary dismissal in s.75.
Issue: Should the application for leave to appeal be granted?
Law:
- Section 75 of the VCAT Act (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.
Analysis:
The Tribunal identified two issues that Mr Kukulka needed to establish. The first was his ownership or right to possession of the website content. The second was that he had suffered loss and damage by the refusal to return it. The Tribunal identified these two issues for determination saying ‘To succeed in his claim Mr Kukulka must prove on the balance of probabilities...’.
The Tribunal granted the application based in part upon a specific finding of ownership made on the balance of probabilities. Mr Kukulka’s evidence most favourable to him did establish a right to possession of the content, although a determination on the balance of probabilities might not necessarily lead to that conclusion. The respondent led no evidence to demonstrate that access had not been refused so Mr Kukulka’s evidence that he could not access the content stood uncontradicted. Accordingly, the applicant’s case, on his own evidence that he was entitled to possession which had been refused, was not hopeless.
The Tribunal’s approach to the issue of loss and damage was coloured by the Tribunal’s adverse findings of Mr Kukulka as a witness and by a finding that some web content was false and misleading, such that any entitlement to damages would offend public policy. The respondent’s case was that to the extent that there was any damage, it hasn’t been shown to be to the applicant, because KAM paid the bill. Mr Kukulka gave evidence that he contributed $10,000 towards payment of this invoice and provided a statement from his father confirming this.
If the claim of ownership survives a summary dismissal application and fell to be determined on its merit, then any remedy for such a claim could not independently provide a basis for summary dismissal, unless such a remedy was not available as a matter of law. Insofar as this application for summary dismissal directed attention at damages, it dealt with whether damage was established as a question of fact. This had to be established in order to obtain the relief sought, but not to establish the claim itself.
Accordingly, the court finds that the Tribunal did err in law by wrongly determining the summary dismissal of the proceeding on the balance of probabilities.
Conclusion: Leave to appeal is hereby granted.
