Abriel v Levitt - [2003] NSWSC 1235

CITATION: Abriel & Ors v Levitt [2003] NSWSC 1235

HEARING DATE(S): 16 December 2003

JUDGMENT DATE:
19 December 2003

JUDGMENT OF: Gzell J

DECISION: Proceedings dismissed with costs

CATCHWORDS: PROCEDURE - Summary Termination - Principles involved - Re-litigation of issues as abuse of process - Principles involved - Earlier unsuccessful litigation to set aside a settlement on grounds of wrongful inducement by counsel - Whether current proceedings against instructing solicitor for acting in concert sustainable

LEGISLATION CITED: Supreme Court Rules 1970
Trade Practices Act 1974 (Cth)

CASES CITED: Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Penthouse Publications Ltd v McWilliam (unreported, 14 March 1991, NSWCA)
Mutual Life & Citizens Assurance Co Ltd v Evatt (1970) 122 CLR 628
Walton v Gardiner (1992-1993) 177 CLR 378
Reichel v Magrath (1889) 14 App Cas 665
Connelly v Director of Public Prosecutions [1964] AC 1254
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423
Abriel v Australian Guarantee Corporation Ltd [2000] FCA 1198

PARTIES :
Rudolf Abriel (1st Plaintiff)
Vera Abriel (2nd Plaintiff)
Premier Knits Pty Ltd (3rd Plaintiff)
Stewart Levitt (Defendant)

FILE NUMBER(S): SC 20056/03

COUNSEL: R Abriel (In person)
SJ Burchett (Defendant)

SOLICITORS: Levitt Robinson Solicitors & Attorneys (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GZELL J

FRIDAY 19 DECEMBER 2003

20056/03 RUDOLF ABRIEL & ORS v STEWART A LEVITT
JUDGMENT

1 The applicant defendant sought an order under the Supreme Court Rules 1970, Pt 15 r 26 that the plaintiffs’ statement of claim be struck out. Alternatively, summary judgment was sought in favour of the defendant under Pt 13 r 5 which provides, amongst other things, that the court may order proceedings that are an abuse of its process to be stayed or dismissed.

2 The principles applicable to summary dismissal of an action are well understood. The case must be very clear to justify summary intervention to prevent a plaintiff submitting a case for determination in the appointed manner (Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62 at 91). The court’s powers of summary dismissal should not be exercised to deny a plaintiff access to the courts unless the lack of a cause of action is clearly demonstrated (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129). It is for the applicant to demonstrate that the statement of claim is beyond saving by legitimate amendment (Penthouse Publications Ltd v McWilliam, unreported, 14 March 1991, NSWCA citing Mutual Life & Citizens Assurance Co Ltd…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWSC 1235
Decision Date: 19 December 2003

CaseChat Overview and Summary

The case of Abriel v Levitt involved a legal dispute between the parties in which the plaintiff sought to challenge the validity of a settlement agreement that had been reached in a previous litigation. The case was heard in the Supreme Court of Queensland. The plaintiff, Abriel, sought to terminate a settlement agreement on the grounds of wrongful inducement by the defendant's counsel in the earlier litigation. The defendant, Levitt, argued that the current proceedings against him for acting in concert with the counsel were an abuse of process and sought to have the case dismissed.

The legal issues before the court were whether the current proceedings were an abuse of process and whether the re-litigation of the issues was permissible. The court had to consider the principles involved in determining whether the re-litigation of the issues was an abuse of process and whether the current proceedings against the defendant were sustainable. The court had to consider whether the earlier unsuccessful litigation to set aside the settlement on the grounds of wrongful inducement by counsel was res judicata and whether the current proceedings were an attempt to relitigate the same issues.

The court held that the current proceedings were an abuse of process and that the re-litigation of the issues was not permissible. The court found that the earlier unsuccessful litigation to set aside the settlement on the grounds of wrongful inducement by counsel was res judicata and that the current proceedings were an attempt to relitigate the same issues. The court held that the current proceedings against the defendant were unsustainable and dismissed the case. The court found that the plaintiff's attempt to challenge the validity of the settlement agreement through the current proceedings was an abuse of process and that the re-litigation of the issues was not permissible. The court held that the principles involved in determining whether the re-litigation of the issues was an abuse of process and whether the current proceedings against the defendant were sustainable were well-established and that the defendant's argument was well-founded.

The final orders of the court were that the case be dismissed with costs. The court found that the plaintiff's attempt to challenge the validity of the settlement agreement through the current proceedings was an abuse of process and that the re-litigation of the issues was not permissible. The court held that the current proceedings against the defendant were unsustainable and dismissed the case with costs. The court found that the defendant's argument was well-founded and that the plaintiff's attempt to relitigate the same issues was an abuse of process.

Orders