Abriel v Bennett

[2003] NSWSC 368

CITATION:	ABRIEL & ORS v BENNETT [2003] NSWSC 368 revised - 7/05/2003
HEARING DATE(S):	29 & 30 April 2003
JUDGMENT DATE:	2 May 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	Action dismissed for abuse of process. The plaintiffs to pay the defendant's costs.
CATCHWORDS:	Practice - abuse of process - inherent jurisdiction to dismiss action as abuse of process - plaintiffs attempting to relitigate issues decided in earlier proceedings against another party - present defendant witness in earlier proceedings - substantial identify of issues as to defendant's professional conduct in both proceedings - action against defendant dismissed as abuse of process
LEGISLATION CITED:	s52, Trade Practices Act 1974
CASES CITED:	Abriel v AGC & anor [1999] FCA 50 Abriel v Rothman [2002] NSWSC 1056 Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 Port of Melbourne Authority v Anshun (1981) 147 CLR 589 Reichel v Bishop of Oxford (1889) 14 App Cas 665 Reichel v Magrath (1889) 14 App Cas 665 Rippon v Chilcotin Pty Limited & ors (2001) 53 NSWLR 198 State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Tort Reports 81-423 (64,077) Walton v Gardiner (1993) 177 CLR 373
PARTIES :	Rudolph Abriel (First Plaintiff) Vera Abriel (Second Plaintiff) Premier Knits Pty Limited (Third Plaintiff) Annabelle C Bennett (Defendant)
FILE NUMBER(S):	SC 20634/01
COUNSEL:	Plaintiff in person Mr S Rares SC with Mr SCG Burley (Defendant)
SOLICITORS:	Plaintiff in person Speed & Stracey (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

FRIDAY 2 MAY 2003

20634/01

ABRIEL & ORS v BENNETT

JUDGMENT

1 HIS HONOUR: Rudolph Abriel, Vera Abriel and Premier Knits Pty Limited commenced an action in this Court against Ms Annabelle Bennett SC in respect of conduct said to have been committed by her as their counsel in proceedings between them and Australian Guarantee Corporation Limited and Westpac Banking Corporation (variously, the respondents and the financiers) in the Federal Court of Australia in which the plaintiffs had sought to set aside a deed of release executed in April 1994 resolving certain disputes between them and the financiers, and damages. Those proceedings were terminated following a mediation when the parties entered into a further deed of settlement (the 1998 deed) under which the financiers agreed to pay Mr and Mrs Abriel $90,000 in full and final settlement of all disputes between the parties. The defendant acted as counsel for the plaintiffs at this mediation. The plaintiffs assert, amongst other things, that the defendant had also undertaken to appear for them at the trial, in the event that the mediation failed. Both the defendant and her instructing solicitor, Mr Levitt, say that the defendant had at no time been retained or briefed to appear in the trial and that the plaintiffs knew this. In this, and other contexts, that the defendant acted pro bono at all times before and during the mediation is a significant fact.

2 In September 1998 the plaintiffs, as applicants, took proceedings in the Federal Court of Australia against the financiers as respondents seeking to set aside the 1998 deed and consequential orders and claim damages (the 1998 proceedings). They failed at first instance following a trial before Dowsett J, their appeal to the Full Court of the Federal Court of Australia was dismissed on 2 March 2001. On 14 December 2001 special leave to appeal to the High Court of Australia was refused and an application to reopen refused on 15 November 2002.

3 At the centre of the plaintiffs’ case was a letter dated 8 December 1995 from Mr Levitt, the plaintiffs’ solicitor, to a Mr Gary Grunstein, also a solicitor, (the Grunstein letter), in which an appeal was made by Mr Levitt for Mr Grunstein’s assistance in providing an affidavit as to certain material facts, referring, in part, to the fact that the Abriels were Jewish and were being helped by a prominent Rabbi and Senior Counsel and needed help in their action against the financiers. The plaintiffs maintained that this letter, when it was produced by the financiers’ counsel to Ms Bennett at the mediation, induced her to act inconsistently with her duty to them as their counsel.

4 On 5 February 1999 Branson J considered an application by the financiers to dismiss or permanently stay the action against them: Abriel v AGC & anor [1999] FCA 50. Her Honour noted that “the essence of the plaintiffs’ case” was identified in their written submissions as follows –

“[29]…’(a) [U]nbeknown to the applicants at the time, the respondents produced the Letter of 8 December 1995 to Ms Bennett SC at the Mediation and informed her that the Letter had been received from the Law Society of New South Wales as a result of a complaint made by Mr Grunstein, with a view to influencing Ms Bennett SC not to continue to represent the applicants in the Federal Proceedings and to advise the applicants to settle the proceedings on the terms then being offered by the respondents;

(b) following the production of the Letter, Ms Bennett SC informed the applicants she was no longer prepared to act for the applicants beyond the Mediation and during the period after the Mediation up to the entering into the Deed of Settlement, Ms Bennett SC gave advice to the applicants to the effect that they should accept the settlement offer;
(c) unbeknown to the applicants at the time, but to the knowledge of the respondents, at the time of Ms Bennett SC giving that advice to the applicants, Ms Bennett SC had a personal interest to avoid the possibility of being embarrassed by the public production of the Letter in the Federal Court Proceedings and to avoid the possibility of being drawn into a complaint stated to have been made by Mr Grunstein to the Law Society of New South Wales.”

5 Branson J said (ibid at [30]) that, although the plaintiffs’ case was “novel” she was unable to conclude it was doomed to fail and therefore refused to strike out the amended statement of claim. However, her Honour also considered that the amended statement of claim did not properly plead the case which, in fact, the plaintiffs wished to advance and concluded that the nature and extent of the deficiencies were such as required that it should be wholly struck out, giving leave to the plaintiffs to file a further amended statement of claim.

6 Branson J concluded her judgment with the following remarks –

“The applicants now have the benefit of the legal advice and representation of counsel. It is to be hoped that if the applicants exercise the leave to be given to them to file and serve a further amended statement of claim, their counsel will prepare this pleading for them. In this eventuality it will be important for the applicants to be conscious of the responsibilities of counsel in the preparation of a pleading, and in particular counsel’s ethical responsibility in respect of a pleading which includes allegations which reflect adversely on the reputation of individuals. It is an ethical responsibility of counsel not lightly to plead such allegations but to satisfy himself or herself that the clients’ instructions provide a proper basis for the making of such allegations ( White Industries (Queensland) Pty Limited v Flower & Hart (1998) 156 ALR 169). Although the first and second applicants appear to believe otherwise, the allegations which they wish to make reflect seriously on the integrity of the legal representatives acting for the respective parties at the time of the mediation before Mr Morling. In particular, it is a serious reflection on the integrity of counsel, and even more on that of senior counsel, that he or she would, whilst acting in a professional capacity, fail to disclose to a client a conflict between his or her own interests and those of the client, and provide advice to a client calculated to advance his or her own interests at the expense of the interests of the client.”

7 Pursuant to the grant of leave, the plaintiffs alleged in their further amended statement of claim in the 1998 proceedings that the respondents had acted unconscionably by having their counsel Mr Dowdy produce the Grunstein letter to the defendant, with the intention of placing her in a position where she had a personal interest in resolving the proceedings before hearing and ending her involvement in them by advising the applicants to settle the proceedings on the terms then offered by the respondents and ceasing to further appear for the applicants in the proceedings. It was alleged that the personal interest created by production of the letter was that the defendant would wish to avoid the possibility of allegations being made in a public hearing that she was a party to an organized Jewish attempt to pressurise the respondents and being involved in a complaint said to have been made by Mr Grunstein to the Law Society. The applicants also alleged that the defendant advised them to execute the settlement deed and, in reliance on that advice and on the fact that they could not find alternate representation, they did so. They claimed that, at this time, they did not know that the defendant was in a position of conflict or had been influenced by the Grunstein letter and were under her undue influence. The plaintiffs alleged that the defendant had breached her duty to avoid any conflict of interest in representing them without disclosing that interest to them and that this and her undue influence of them to execute the deed had been brought about or assisted by the respondents.

8 The respondents admitted in their Defence in the 1998 proceedings that they had produced to the defendant a copy of the Grunstein letter but relevantly denied all the allegations of impropriety.

9 After a five day trial in July 2000, Dowsett J, in a judgment delivered on 29 August 2000, found for the respondents: [2000] FCA 1198. A number of witnesses were called, including the defendant. Although called by the applicants, they were (in substance) permitted to cross-examine her. She denied being influenced by the Grunstein letter in her conduct of the mediation or any advice she gave or actions she took. This matter was, of course, at the very centre of the applicants’ case and it was necessary for Dowsett J to determine whether Ms Bennett’s evidence was true and reliable or otherwise. It is sufficient to state for present purposes that his Honour accepted her evidence and emphatically rejected the allegations that the applicants had made both against her and the respondents. Mr Abriel told me (as will be seen in due course from the amended statement of claim in the current proceedings) that the purpose of the present action against the defendant is to demonstrate that, indeed, the allegations made and rejected by Dowsett J were true and, accordingly, the defendant should pay damages. He informed me, in substance, that he proposed that the evidence adduced before Dowsett J should again be adduced in this Court and that no further or additional evidence was necessary or, as I understood him, available.

10 In July 2001 the plaintiffs sued the defendant (in these proceedings), and in separate proceedings (No 20636 of 2001) sued Mr Rothman SC, who had appeared for them to conduct their appeal in the Full Court of the Federal Court. They alleged against Mr Rothman (amongst other things) that he had failed to make submissions to the Full Court as to the alleged apprehended bias of Dowsett J, as to the conduct of Ms Bennett at the mediation and the effect on her of the Grunstein letter, and as to the degree and effect of the influence exercised by Ms Bennett over the plaintiffs in respect of their execution of the 1998 deed.

11 On 8 November 2002, Burchett AJ summarily dismissed the proceedings against Mr Rothman: Abriel v Rothman [2002] NSWSC 1056. His Honour pointed out that it would have been pointless for Mr Rothman to have argued the matters which Mr Abriel claimed he should have, since they were all, in substance, attempts to refute the trial judge’s findings of fact. The only possible attack capable of being mounted against Dowsett J’s findings was a contention that there was an apprehension of bias on his Honour’s part. Burchett AJ, however, concluded, “... there is no vestige of support to be found in this case for that argument”: ibid at [11]. His Honour added (at [13]) –

“… in any event, there is a further ground that independently requires me to reach the same conclusion. In representing the appellants upon the appeal to the Full Court, Mr Rothman owed a ‘paramount duty to the Court’ which required him not to ‘cast unjustifiable aspersions on any… witness’, including Mrs Bennett, ‘even if the client [had] give[n] instructions to the contrary’ [quoting Mason CJ in Giannarelli v Wraith (1988) 165 CLR 543 at 556].”

12 In this court, Mr Abriel appeared for himself, his wife and the company plaintiff. In his submissions, Mr Abriel agreed that the issues concerning the defendant’s conduct that were raised in the 1998 proceedings were the same as those he now wishes to litigate. However, as he is appearing without legal assistance, and the application of the defendant is an exceptional one, fairness requires an examination of the amended statement of claim to confirm that this is so.

13 The amended statement of claim commences with an allegation that the defendant was briefed by Mr Levitt to represent the plaintiffs “to do everything necessary to succeed” in the 1998 proceedings, including appearing on their behalf at the mediation. It is alleged (in various ways) that the defendant was under a duty to exercise all due care and skill in so doing but that, instead, she acted negligently and in breach of her duty to the plaintiffs. This conduct, in substance, was particularised as failing to disclose to the plaintiffs the existence of the Grunstein letter, her conversations with Mr Dowdy (counsel for the financiers) about the letter, her reaction to the letter and the effect it had upon her conduct of the mediation, failing to act “without fear or favour on behalf of the plaintiffs” in the mediation or in their best interests, failing to properly advise them, failing to disclose “the conflict of interest between her own interests and those of the plaintiffs, raised by the Grunstein letter” and intimating to the financiers’ legal advisors that she “was not committed to taking the matter to trial”. The plaintiffs also allege that she brought undue influence to bear on them to force them to accept an unfavourable offer of settlement, when she knew or ought to have known that it was not in their best interests to do so but, rather, it was in her own interest. The substance of these allegations are repeated several times under different rubrics but it is unnecessary to set all this detail out.

14 It will be seen that there is no difference in substance between the allegations now made and those summarised by the plaintiffs in their written submissions to Branson J and set out above, except that it is now alleged, as it was alleged in the 1998 proceedings, that the defendant had undertaken to appear for the plaintiffs at the trial, in the event that the mediation was not successful.

15 I do not propose to set out a detailed analysis of the judgment of Dowsett J, despite the criticisms made by Mr Abriel of his Honour’s reasoning. However, it may be useful to quote his Honour’s crucial findings, not only to demonstrate whether the issues raised by the present litigation were also, in substance, raised in the Federal Court but also how they were determined. After summarising the evidence adduced before him, Dowsett J dealt with what he called “Credibility and Findings of Fact”, commencing with his conclusions concerning the defendant’s conduct. This is scarcely surprising having regard to the crucial importance of this matter to the applicants’ case. On a number of critical points, Dowsett J was required to decide between conflicting accounts given by the defendant on the one hand and the Abriels on the other, as well as conflicts between the defendant and Mr Levitt. In each case, his Honour preferred the evidence of the defendant, following a careful analysis of the evidence, for reasons that appear to me (with respect) to be singularly cogent. I only make this observation because Mr Abriel submitted, at considerable length, that justice required that he should be permitted to relitigate the issues concerning the defendant as they had not been properly or correctly determined by Dowsett J, arguing by reference to the transcript and affidavits filed in those proceedings, that his Honour’s reasoning was flawed to the point of absurdity and is explicable only by the presence of bias against the plaintiffs. I have carefully considered those parts of the transcript tendered before me, together with the documentary material and the judgment. Mr Abriel’s submission in this regard is baseless. Having regard to the serious allegations that Mr Abriel has had the opportunity of making against the defendant and others in this Court, I consider that it is only just that I should in this judgment set out Dowsett J’s general conclusion about the same allegations –

“[60] As to Ms Bennett, I saw no reason to doubt her honesty. She undoubtedly devoted a substantial amount of time to the applicants' cause without charge. One would not normally expect to see unselfish conduct of that kind in somebody who was willing to conceal the truth where the interests of others were concerned. It is implicit in the applicants' case that notwithstanding her earlier generosity, Ms Bennett has concealed the truth to protect her own professional standing. I saw nothing in her demeanour to suggest that this was the case.
[61] I have reached a similar conclusion concerning Mr Opperman and Mr Dowdy. Their accounts are quite plausible. Mr Dowdy's account of the circumstances in which he came to disclose the Grunstein letter to Ms Bennett is particularly so. I can well imagine that, faced with Ms Bennett's question as to why the respondents were taking an apparently intransigent position, he might respond by pointing to the history of the matter, including the letter, particularly if he had formed an adverse view as to Mr Levitt's conduct. Ms Bennett said that she had, at one stage, said to either Mr Dowdy or Mr Morling that she had expected, as part of the mediation process, an offer from the respondents, implying that she was surprised at the way in which they had conducted themselves in the initial stages of the mediation… This may well have been a reference to the conversation recounted by Mr Dowdy. For the sake of completeness I should also say that I saw nothing in the demeanour of Messrs Dowdy, Opperman or Curd to suggest that any of them was other than truthful.”

16 The first specific question of fact mentioned in his Honour’s conclusions concerned the defendant’s attitude to her continued involvement in the case in the event that it was not settled at mediation. Dowsett J accepted the defendant’s evidence that she had at no time committed herself to take the matter to trial, although he considered that Mr Levitt and the Abriels may have honestly but mistakenly assumed otherwise. His Honour also accepted the defendant’s evidence that the Grunstein letter had no effect on her at the time and that she did not read it carefully at the mediation, partly upon the ground that his Honour had difficulty in seeing how it could have significantly affected her and its marginal relevance at all events. His Honour concluded, “I accept Ms Bennett's account of her reaction to it and conduct thereafter” and expressly rejected the evidence of the applicants' other witnesses where it conflicted with hers. To my mind, the notion that the Grunstein letter could create a conflict of interest and have the effects on the mind and conduct of a barrister in the defendant’s situation as propounded by the plaintiffs is simply absurd.

17 Dowsett J noted that the applicant’s claim depended “to some extent upon their having relied upon Ms Bennett's advice to accept the respondents' offer”. His Honour observed, however, that it was “clear…that they had adequate opportunity to seek other advice after the mediation and before execution of the deed” and “that Mr Levitt was, in any event, still acting for them and had full knowledge of the circumstances in which Ms Bennett had advised them”. He noted also that the plaintiffs “chose to seek other legal representation in order to go to trial” and also “had advice from [a] Mr Courtenay who appears to have been closely associated with them”. His Honour found –

“Clearly, it was not Ms Bennett's advice which led to the applicants' signing the deed, but their inability to arrange other legal representation. In any event, even on the first applicant's version of that advice, it was clearly balanced and sensible. Further, the ultimate decision was left to the applicants. It is inherent in what I have already said, that there is no evidence of any conflict as between Ms Bennett's professional duty and her personal loyalties.”

18 Dowsett J was of the view (which, with respect, is plainly correct) that the “applicants’ claim is based upon mere suspicion” (ibid at [66]) and set out the following conclusions –

“[71] I make the following express findings of fact:

* There is no evidence that either of the respondents, Mr Dowdy, Mr Opperman or Mr Curd desired that Ms Bennett should cease representing the applicants. The evidence suggests to the contrary.

* Mr Dowdy's disclosure of the Grunstein letter to Ms Bennett was motivated solely by his desire to demonstrate the reasons for the respondents' reluctance to pay money to the applicants in order to settle a claim which they (the respondents) considered to be without merit.

* Ms Bennett at no time committed herself to acting for the applicants at trial. Disclosure of the Grunstein letter had no effect upon her decision not to do so.

* Such disclosure also had no relevance to, and no effect upon any advice given by her to the applicants or her conduct of the mediation.

* Ms Bennett gave advice in accordance with the certificate attached to the deed and as deposed to by the first applicant in par 41 of his affidavit filed on 11 June, 1999.

* I am not satisfied that in entering into the deed, the applicants acted upon any such advice.

72 Clearly, the Court has credited the applicants' claims with more substance and respectability than they have ever deserved. Unfortunately, in ensuring that meritorious claims are not shut out, we often permit unmeritorious claims to be ventilated. Further, in conducting the trial, I felt compelled to allow a certain latitude to the applicants, given that they did not have legal representation. Both in their evidence and in their conduct of the case, they were permitted to express speculative views concerning Mr Dowdy's conduct although they could not have known what he had said or done. Similarly, they were permitted to speculate concerning Ms Bennett's conduct. I regret that on this occasion, concern that the applicants should have an opportunity to vindicate their claims has resulted in the circulation of unsubstantiated allegations of misconduct against Ms Bennett, Mr Dowdy, Mr Opperman, Mr Curd and the respondents. Those allegations have been accorded an appearance of credibility which they do not deserve. I can compensate for that only by saying that they are without any substance whatsoever.”

19 The plaintiffs’ written submissions in this Court assert that the defendant had “assured” the Abriels that “she would go to trial if the mediation failed”, that Mr Dowdy showed the defendant the Grunstein letter and suggested that, “if Dr Bennett proceeded to trial she would be part of Jewish gang-up against Westpac”, that she “resigned on the spot”, and that “she lied in the witness box, to the benefit of Westpac and our final destruction”. Each of these allegations was, in substance, made in the Further Amended Statement of Claim in the 1998 proceedings, each was the subject of evidence in the Federal Court and each was decisively determined against the plaintiffs. It seems to me, therefore, that the defendant’s submission that there is a substantial identity of issues – so far as she is concerned – in both sets of litigation is plainly right. Nor is it contested by the plaintiffs. Indeed, the present proceedings have been undertaken for the specific purpose of obtaining a favourable judgment on those issues.

20 The defendant was not a party to the Federal Court proceedings. Does it follow that the plaintiffs are entitled to attempt in this Court to make the same case against her as failed before Dowsett J for the purpose of obtaining a contradictory judgment on the same issues? Mr Rares SC, for the defendant, submits that the answer is no. He submitted that it was an abuse of process for the plaintiffs, having suffered adverse findings on every factual aspect of their case that is now sought to be litigated, to be permitted to chance their arm again in the hope that this Court will come to the opposite conclusion, merely by placing the identical issues in a different legal context, namely an action against the defendant.

21 There is no doubt, as it seems to me, that the Court has an inherent jurisdiction to prevent an abuse of its processes, even where there may not be an estoppel strictly so-called. In Walton v Gardiner (1993) 177 CLR 373 at 393, Mason CJ, Deane and Dawson JJ said –

“Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings (see eg Reichel v McGrath (1889) 14 App Cas 665 at 668; Connolly v Director of Public Prosecutions [1964] AC 1254 at 1361-1362). The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536 as ‘the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people’.”

22 In Reichel v Magrath (1889) 14 App Cas 665 the House of Lords held that, having contested unsuccessfully whether he had resigned a benefice thereby losing his right to possession of the parsonage house in Reichel v Bishop of Oxford (1889) 14 App Cas 665, the former vicar could not set up his continuance in the benefice as a defence to ejectment proceedings by his successor. Lord Halsbury LC (at 668) denied that a litigant could “...be permitted by changing the form of the proceedings to set up the same case again”.

23 The most recent exposition of the law in this State upon this subject is contained in the judgment of Handley JA (with whom Mason P and Heydon JA agreed) in Rippon v Chilcotin Pty Limited & ors (2001) 53 NSWLR 198. The following summary of facts is taken from the headnote. Purchasers of a business sued the vendor in contract in the Supreme Court for breach of a warranty as to the accuracy of 1991 financial statements annexed to the contract and under s52 of the Trade Practices Act 1974 for misrepresentations in the statements. The contractual claim succeeded but the s52 claim failed on the basis that the purchasers had not relied on the misrepresentations. The purchasers commenced another action in the District Court against the accountants who prepared the financial statements, claiming damages for negligent misrepresentation in the 1991 statements and in those for the previous three years. The accountants moved for summary dismissal of the action for abuse of process. It was clear that that the accountants, who were neither parties to the first action nor privies of the vendor, could not claim the benefit of any cause of action estoppel or issue estoppel: ibid at [14]. Applying the principle enunciated by Gibbs CJ, Mason and Aickin JJ in Port of Melbourne Authority v Anshun (1981) 147 CLR 589 at 602, the purchasers would have been estopped from suing the vendor for misrepresentations made in the earlier statements: ibid at [19]. Handley JA observed –

“[22] The purchasers could have included their claim against the accountants for negligent misrepresentation, based on the 1991 figures, in their Supreme Court proceedings. They knew that the figures came from the accountants and there would have been common issues of reliance, falsity and damage. If the claims based on the earlier figures were not worth pursuing against the vendor they were not worth pursuing against the accountants either.
[23] In those circumstances it could fairly be said, in the language of the joint judgment in Port of Melbourne Authority v Anshun (at 602), that the claims against the accountants were so relevant to the subject matter of the first action that it was unreasonable for the purchasers not to rely upon them in that action: compare Morris v Wentworth-Stanley [1999] QB 1004 at 1011, 1017.
[24] Counsel for the appellant did not contend for the Anshun estoppel [but he did in this case, though not as his primary ground] but the fact that the present claim could, and perhaps should, have been included in the Supreme Court proceedings, emphasis the close connection between the two proceedings and is relevant in considering whether the present action is an abuse of process.
…
[28] The present proceedings are an attempt to litigate or re-litigate issues which were either decided in or barred by the earlier proceedings. In substance, ignoring the sabotage, the purchasers are attempting to relitigate the issue of reliance on the 1991 figures which they lost…
…
[30] The substance of the matter therefore is clear. The purchasers, disappointed with their bargain, sued their vendor in contract and in misrepresentation. They lost their case in misrepresentation and were disappointed with their modest recovery in contract. A few weeks before the expiration of the limitation period they sued the accountants for what is in substance the same misrepresentations. In the first proceedings they had to prove that they relied upon those misrepresentations. This turned on the evidence of Mr Hoefl, the contemporary documents, and the surrounding circumstances. The purchasers lost that issue and seek to re-litigate it against the accountants on essentially the same evidence in the hope that this time Mr Hoefl will be believed.”

24 Handley JA cited with approval the judgment of Hunt CJ at CL in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414, where his Honour considered that striking out pleadings or causes of action as an abuse of process under Reichel v Mcgrath required that the issue sought to be relitigated had previously been determined adversely to the party seeking to propound it again, that the issue was “necessarily determined” and important to the result, that the parties were appropriate contradictors and regarded the issue as important and the decision disposing of the issue was a final one, binding authority had not been overlooked and manifest injustice was not done to the unsuccessful party (in the context of a consideration of all the circumstances). These considerations emphasise the point that, whether an abuse of process has or will occur is a matter of substance, not form. Giles CJ Comm D said, in State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Tort Reports 81–423 (64,077) –

“…The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice…”

25 Handley JA concluded (53 NSWLR at [36] that, since the accountants were not parties to the earlier action, no question of oppression and unfairness arose, “but these proceedings do threaten the integrity of the administration of justice and raise the prospect of conflicting judgments”.

26 It is obvious from what I have already said that, despite the difference in relief sought, the defendant (at least) “could and perhaps should have been included” in the 1998 proceedings; the matters adverted to by Hunt CJ at CL as necessary are all present and the countervailing considerations are absent; although she was not a party, the defendant was a witness whose conduct was an important issue and essential to the disposition of the case; she was subjected in a public forum to a virulent and baseless attack on her professionalism and probity; Mr Abriel frankly concedes that he wishes, in effect, to reverse the judgment of Dowsett J to the effect, not only that the attack was wholly unjustified but also that the plaintiffs were not unduly influenced by and did not rely on the defendant’s advice in settling their case; and he also acknowledges that he intends to seek that contradictory judgment on the same evidentiary material adduced before Dowsett J. If the present proceedings are not oppressive and unfair and do not threaten the integrity of the administration of justice, it is difficult indeed to think of proceedings which would satisfy that description.

27 Accordingly, the action brought by the plaintiffs in this Court is an abuse of process. It must be dismissed. The plaintiffs are to pay the defendant’s costs.

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Last Modified: 05/08/2003