Angeleska (known as Slaveska) v State of Victoria

[2015] VSCA 140

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0187

SNEZANA ANGELESKA (known as SLAVESKA)	Appellant
v
STATE OF VICTORIA and others (according to the attached Schedule)	Respondents

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JUDGES:	WARREN CJ, TATE JA and GINNANE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 November 2014
DATE OF JUDGMENT:	10 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 140
JUDGMENT APPEALED FROM:	Angeleska v Victoria [2013] VSC 598 (Lansdowne AsJ)

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LIMITATION OF ACTIONS — Application for summary judgment on the basis of expiry of applicable limitations period — Whether claims brought out of time by operation of Limitations of Actions Act 1958 Part IIA — Whether damages claimed relate to personal injury — Where compensatory damages sought for alleged injuries consequent upon torts not requiring proof of personal injury — Where mental harm alleged — Where nominal, aggravated and exemplary damages also sought — Effect of a claim for personal injury damages on other damages claims arising from a cause of action — Limitations of Actions Act 1958 s 27B(1) — New South Wales v Williamson (2012) 248 CLR 417 — New South Wales v Radford (2010) 79 NSWLR 327.

LIMITATION OF ACTIONS — Date cause of action is discoverable — Where plaintiff unaware of identity of defendants — Whether reasonable to expect self-represented plaintiff to have ascertained identity of defendants by pre-action discovery process — Limitations of Actions Act 1958 ss 27D(1)(a), 27F(2).

LIMITATION OF ACTIONS — Whether to grant extension of time to bring claims — Whether prejudice occasioned to defendants — Whether delay by self-represented plaintiff fully explained — Limitations of Actions Act 1958 ss 23A, 27K, 27L.

APPEALS — Whether notice of contention ground can be pursued on appeal — Whether ground raised before primary judge — Where ground not emphasised in submissions — Where ground raises question of law inherently within jurisdiction of Court — Appropriate to consider ground.

PRACTICE AND PROCEDURE — Application by defendants for summary judgment on the basis of abuse of process of the Court — Where self-represented plaintiff acted as husband’s litigation guardian in extended proceeding regarding same incidents — Whether claims would cause unjustifiable oppression to defendants — Whether claims would bring administration of justice into disrepute — Where claims raise factual issues substantially identical to issues exhaustively considered in prior proceeding — Where plaintiff intimately involved in prior proceeding — Where plaintiff contributed to length and inefficiency of prior proceeding — Where plaintiff failed to fully explain delay in bringing personal claims — Where recoverable damages limited in scope — Relevance of overarching obligations in Civil Procedure Act 2010 — Summary dismissal of claims granted.

ESTOPPEL — Application by defendants for summary judgment on the basis of Anshun estoppel — Where plaintiff not party to prior proceeding — Where plaintiff acted as husband’s litigation guardian in prior proceeding — Whether risk of inconsistent judgments arises — Whether unreasonable for plaintiff not to have brought personal claims as part of prior proceeding — Where plaintiff was focused on litigation guardian role in complex proceeding — Where plaintiff self-represented — Unreasonableness not established — Time for assessment of unreasonableness — Interaction of Anshun estoppel and abuse of process principles — Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 — Walton v Gardiner (1993) 177 CLR 378.

COSTS — Application for leave to appeal against costs order — Where success on appeal grounds limited — No sufficient doubt about costs order — Leave refused.

WORDS AND PHRASES — ‘Cause of action for damages’ — ‘Personal injury’ — ‘Damages that relate to personal injury’ — ‘Impairment of a person’s physical or mental condition’.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P Zappia QC with Ms S Gory	---
For the Respondents	Mr S A O’Meara QC with Mr R I Gipp	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Introduction....................................................................................................................................... 1

The alleged incidents...................................................................................................................... 4

Incident 1...................................................................................................................................... 4

Incident 2...................................................................................................................................... 4

Incident 3...................................................................................................................................... 4

Incident 4...................................................................................................................................... 5

Incident 5...................................................................................................................................... 5

Incident 6...................................................................................................................................... 5

Incident 7...................................................................................................................................... 6

Incident 8...................................................................................................................................... 6

Incident 9...................................................................................................................................... 6

Incident 10.................................................................................................................................... 6

Incident 11.................................................................................................................................... 7

Incident 12.................................................................................................................................... 7

Incident 13.................................................................................................................................... 7

Incident 14.................................................................................................................................... 8

Incident 15.................................................................................................................................... 8

Incident 16.................................................................................................................................... 8

Incident 17.................................................................................................................................... 8

The proceeding below..................................................................................................................... 9

Grounds of Appeal/Notice of Contention................................................................................. 12

The applicable limitation period................................................................................................. 13

Mrs Slaveska’s submissions.................................................................................................... 18

Submissions of the respondents............................................................................................. 20

Damages that ‘relate to’ personal injury................................................................................ 21

Did Mrs Slaveska allege personal injury?............................................................................. 26

Partial survival of claims......................................................................................................... 33

Discoverability of Incident 5 causes of action.......................................................................... 37

Discretion as to the extension of time......................................................................................... 40

Notice of Contention..................................................................................................................... 44

Abuse of process — a point raised below?........................................................................... 45

Mrs Slaveska’s role in Mr Slaveski’s proceeding................................................................. 47

Consideration — do Mrs Slaveska’s claims amount to an abuse of process?................. 50

Anshun estoppel........................................................................................................................ 61

Necessary preconditions......................................................................................................... 65

Anshun estoppel where litigants differ between proceedings.................................................. 67

Risk of inconsistent judgments............................................................................................... 69

Other factors and conclusion as to unreasonableness............................................................. 72

Costs appeal.................................................................................................................................... 75

Disposition...................................................................................................................................... 76

WARREN CJ:

TATE JA:

GINNANE AJA:

Introduction

1. The appellant, Snezana Angeleska (‘Mrs Slaveska’) is the wife of Ljupco Slaveski.  On 5 September 2006, Mr Slaveski issued proceedings against the State of Victoria and 23 individual police officers arising out of 13 alleged incidents.  He sought damages in respect of claims of assault and battery, false imprisonment, malicious prosecution, defamation, trespass, conversion, detinue and negligence.  He claimed that he had suffered physical and/or psychiatric injury as a result of most of the incidents.

1. In essence, Mr Slaveski sued each of the respondents for causes of action arising from various police attendances, chiefly at his business premises.  Mr Slaveski claimed he was assaulted and threatened by police officers, and that they trespassed upon his property.  In broad terms, he was not believed and his claims largely failed.

1. Mr Slaveski’s proceeding was heard by a judge sitting in the Trial Division commencing on 3 August 2009.[1]  There were 115 sitting days over a period of more than a year, generating 16,166 pages of transcript.  At least 17 witnesses were called by Mr Slaveski and another 40 were called by the defendants.  Mrs Slaveska was the first witness called, and her evidence extended over 25 days.  She also acted as Mr Slaveski’s McKenzie friend.[2]  Upon the mental illness of Mr Slaveski manifesting itself early in the trial, Mrs Slaveska was appointed as Mr Slaveski’s litigation guardian on 14 December 2009[3] and she had the conduct of his proceeding from that date.  She attended every day of the trial.

   [1]Slaveski v Victoria [2010] VSC 441 (Kyrou J).

   [2]McKenzie v McKenzie [1970] 3 All ER 1034.

   [3]See Slaveski v Victoria (2009) 25 VR 160 (Kyrou J), which also describes Mr Slaveski’s behaviour during the early part of the trial.

1. On 1 October 2010, the trial judge, Kyrou J, delivered judgment dismissing all of Mr Slaveski’s claims, except for one concerning trespass.  The judge’s reasons covered 655 pages.  His Honour made final substantive orders on 10 December 2010.

1. On 21 December 2010, purportedly continuing to act as Mr Slaveski’s litigation guardian, Mrs Slaveska filed a notice of appeal on behalf of Mr Slaveski in relation to Kyrou J’s orders.[4]  The respondents subsequently sought security for the costs of the appeal from Mrs Slaveska personally.  On 25 November 2011, Mrs Slaveska was ordered to pay the security sought.[5]  Following Mrs Slaveska’s failure to pay the security into Court in accordance with those orders, Mr Slaveski’s appeal was dismissed for want of prosecution on 1 February 2013.[6]  An application for special leave to appeal to the High Court was dismissed on 5 June 2013.[7]

   [4]The Notice of Appeal for Court of Appeal proceeding S APCI 2010 0169 repeatedly refers to Mrs Slaveska as Mr Slaveski’s litigation guardian, including in the header.

   [5]Slaveski v Victoria (Unreported, Supreme Court of Victoria, Court of Appeal, Harper JA, 25 November 2011). In addition, the Court dismissed as incompetent the appeal in relation to Kyrou J’s costs orders and refused Mr Slaveski’s application for an extension of time within which to apply for leave to appeal.

   [6]Slaveski v Victoria (Unreported, Supreme Court of Victoria, Court of Appeal, Neave JA and Vickery AJA, 1 February 2013).

   [7]Slaveski v Victoria [2013] HCASL 84.

1. Meanwhile, on 24 November 2011, Mrs Slaveska commenced her own proceeding against the State of Victoria and 23 individual police officers, of whom 18 had been defendants in her husband’s proceeding.[8]  She complained of 17 incidents occurring between 8 September 2000 and 1 July 2010.  In respect of Incidents 1 to 10 and 12, apart from minor differences, her claims mirror those of her husband.  Mrs Slaveska filed her writ without seeking or obtaining leave to do so.

   [8]The new defendants in Mrs Slaveska’s proceeding were police officers Bateman, Busic, Cornelius, Gutske and Mason.  Claims were brought against them in relation to Incidents 11, 13, 14, 15, 16 and 17: see the summary of incidents set out from paragraph [12] of these reasons.  The defendants in Mr Slaveski’s proceeding against whom Mrs Slaveska did not make claims were police officers Leemon, Roberts, Robinson, Smith and Wheeler.

1. On 4 June 2012, the respondents filed a summons seeking the summary dismissal or the striking out of many of Mrs Slaveska’s claims.  The respondents argued that Mrs Slaveska was prevented from bringing many of her claims because:

(a)               certain claims are an abuse of process or give rise to an estoppel because they relate to issues or causes of action determined in Mr Slaveski’s proceeding;

(b)               certain claims do not disclose a cause of action, are scandalous, frivolous or vexatious or are otherwise an abuse of the process of the Court;

(c)               the defendants have a good defence on the merits to certain claims (being those involving alleged failures to investigate); and

(d)              most of the claims are statute barred as they were brought out of time.

1. On 30 October 2012, Mrs Slaveska filed a summons seeking an extension of time pursuant to section 27K of the Limitation of Actions Act 1958 (‘Limitations Act’) to enable her to prosecute all the claims set out in her Amended Statement of Claim.

1. Both applications were heard together over three days by an associate judge.[9]  The associate judge refused Mrs Slaveska’s application for an extension of time and granted summary judgment for the respondents in respect of Mrs Slaveska’s claims regarding Incidents 1 to 14 on the basis that they were not brought within time.  Her Honour found that no Anshun estoppel would have operated to prevent Mrs Slaveska from bringing her claims, but did not reach a conclusion as to whether bringing any of the claims would have constituted an abuse of process, as the defendants’ submissions had not elaborated upon that aspect of their summons.

   [9]Angeleska v Victoria [2013] VSC 598 (‘Reasons’).

1. Mrs Slaveska appeals the decision of the associate judge dismissing her claims relating to Incidents 1 to 14.  The respondents submit, by notice of contention, that if necessary her claims in respect of Incidents 1 to 10 and 12 ought to be dismissed on the basis of Anshun estoppel or, alternatively, abuse of process.

1. For the reasons that follow, we would reject Mrs Slaveska’s appeal grounds except insofar as we find that she brought certain claims partly within time.  We would dismiss as an abuse of process those surviving claims that arise out of the incidents that were the subject of Mr Slaveski’s proceeding.

The alleged incidents

1. The incidents that Mrs Slaveska alleges give rise to her causes of action are as follows.[10]

   [10]The paragraphs of Mrs Slaveska’s Amended Statement of Claim dated 15 May 2012 pertaining to each incident are identified in Annexure A to these reasons.

Incident 1

1. On 8 September 2000, the second, third, fourth, fifth and sixth defendants[11] attended Mr Slaveski’s business premises to investigate him as a suspect in a criminal investigation (‘Incident 1’).  Mrs Slaveska alleged that she was assaulted and threatened by those defendants and that they were trespassing on the premises, and claimed that she suffered a variety of physical and psychological injuries as a result of the incident.[12]

   [11]There were twenty-five defendants named in Mrs Slaveska’s proceeding.  The first twenty-four defendants are named as respondents to the appeal in the same order as before, as shown in the attached schedule.  Mrs Slaveska’s summons initiating this appeal omitted Victoria Police as a respondent and instead listed the State of Victoria as both the first and the twenty-fifth respondent.  As there is no basis for the State to be listed twice, as a formality we will order that the twenty-fifth respondent be removed.

   [12]Including extensive bruising and swelling on her legs, bruising to the hands and wrist, headaches, dizzy spells, severe shock, anxiety and depression.

Incident 2

1. On or about 18 December 2003, the seventh defendant in the company of another police officer attended Mr Slaveski’s business trading premises (‘Incident 2’).  Mrs Slaveska alleged that the officers entered forcibly, unlawfully and without authorisation or legal justification, and she alleged that just before leaving the premises, the seventh defendant made a threat to Mr Slaveski which caused her to suffer injury, damage and loss.

Incident 3

1. On or about 14 April 2004, the eighth and ninth defendants attended  Mr Slaveski’s business trading premises to demand the return of certain items which had belonged to a former employee of Mr Slaveski (‘Incident 3’).  Mrs Slaveska alleged that those defendants entered forcibly, unlawfully and without authorisation or legal justification, and she claimed that she experienced further dizzy spells, further anxiety and other psychological injuries as a result of the incident.

Incident 4

1. On 22 June 2005, Mrs Slaveska, in the company of Mr Slaveski and their three children, attended the Mill Park police station to serve a civil writ on a colleague of the tenth and eleventh defendants (‘Incident 4’).  Mrs Slaveska alleged that the eleventh defendant yelled at Mrs Slaveska and Mr Slaveski and used offensive language.  Mrs Slaveska further alleged that the tenth defendant referred to Mr Slaveski as a criminal, which Mrs Slaveska claims was defamatory.  Mrs Slaveska claimed the incident caused injury to her feelings.

Incident 5

1. On 13 December 2005, the seventh, eleventh, twelfth, thirteenth, fourteenth, fifteenth and sixteenth defendants, in the company of other police officers, attended Mr Slaveski’s business trading premises to arrest him and execute a search warrant (‘Incident 5’).  Mrs Slaveska alleged that the defendants trespassed upon her person and unlawfully restrained her for an unwarranted period while they conducted the search.  Mrs Slaveska further claimed that those defendants trespassed on Mr Slaveski’s land by conducting the search using more police officers than was necessary and by remaining at the premises for a longer period than was necessary.  Mrs Slaveska claimed the incident caused her to suffer a range of psychological injuries.

Incident 6

1. On or about 13 January 2006, the seventeenth defendant in the company of other police officers attended outside Mr Slaveski’s business trading premises (‘Incident 6’).  Mrs Slaveska alleged that the seventeenth defendant did so unlawfully, without legal justification and in circumstances which constituted an assault on Mrs Slaveska as well as stalking of her family.  Mrs Slaveska claimed that the seventeenth defendant made threatening gestures with his hands with the intended purpose of harassing and intimidating Mrs Slaveska and her family, and that this caused her to suffer psychological injuries.

Incident 7

1. On or about 12 July 2006, the eighteenth defendant in the company of other police officers attended outside Mr Slaveski’s business trading premises (‘Incident 7’).  Mrs Slaveska alleged that the eighteenth defendant did so unlawfully, without legal justification and in circumstances which constituted an assault of Mrs Slaveska as well as stalking of her and her husband.  Mrs Slaveska claimed that the eighteenth defendant made threatening gestures with his hands with the intended purpose of harassing and intimidating Mrs Slaveska and her husband, and that this caused her to suffer injury, loss and damage.

Incident 8

1. Mrs Slaveska alleged that on or about 20 July 2006, the eighteenth defendant followed her and Mr Slaveski into Epping Plaza with the intended purpose of harassing and intimidating her (‘Incident 8’).  She claimed that this constituted both assault and stalking and that it caused her to suffer injury, loss and damage.

Incident 9

1. Mrs Slaveska alleged that on or about 14 August 2006, the eighteenth defendant followed her and Mr Slaveski into Epping Plaza with the intended purpose of harassing and intimidating her (‘Incident 9’).  She claimed that this constituted both assault and stalking and that it caused her to suffer injury, loss and damage.

Incident 10

1. On 7 May 2007, whilst at the St Kilda Road police station complex, the ninth defendant had a telephone conversation with Mrs Slaveska and Mr Slaveski (‘Incident 10’).  Mrs Slaveska alleged that the ninth defendant spoke words which were harmful and offensive and which caused her to suffer injury, loss and damage.[13]

   [13]This included further fear, further anxiety, further depression, further panic attacks and further shock.

Incident 11

1. Allegations were also levelled against the twenty-second defendant, the Assistant Commissioner.  Mrs Slaveska claimed that she and her family received prank and threatening phone calls in the period from mid-2005 to 3 August 2009, and that she and Mr Slaveski made complaints regarding those calls to the Assistant Commissioner.  Mrs Slaveska alleged that in conspiracy with the first defendant, the twenty-second, twenty-third and twenty-fourth defendants failed to investigate those complaints (‘Incident 11’), causing her to suffer further injury.  This is the first of three undated incidents.

Incident 12

1. Mrs Slaveska also claimed that the first and nineteenth defendants owed a duty to take reasonable care for the safety of Mrs Slaveska and her family, and had breached that duty (‘Incident 12’).[14]  This is the second undated incident.[15]

   [14]Mrs Slaveska alleged, among other things, that the first and nineteenth defendants provided poor leadership and failed to prevent the defendants from harassing, intimidating, assaulting and detaining her.

   [15]Although this incident is undated, Kyrou J found in Mr Slaveski’s proceeding that the last date on which the nineteenth defendant could have investigated the threatening telephone calls was 20 November 2006: Slaveski v Victoria [2010] VSC 441, [2099(g)].

Incident 13

1. On or about 5 September 2007, the twentieth defendant allegedly stalked, followed and threatened Mrs Slaveska and Mr Slaveski while they were picking up their three children from school (‘Incident 13’).  Mrs Slaveska claimed that the twentieth defendant blocked her vehicle with his police vehicle, stole and destroyed Mr Slaveski’s driver’s licence, and refused to disclose his name and rank upon request.  She claimed that this incident involved assault and battery upon her person and trespass to goods, and that she suffered injury as a result.

Incident 14

1. On or about 23 September 2008, the twentieth defendant allegedly threatened Mrs Slaveska and her family at the Heidelberg Magistrates’ Court (‘Incident 14’).  Mrs Slaveska claimed that this caused her to suffer injury.  Further and in the alternative to the above allegation, Mrs Slaveska claimed that the twenty-fourth defendant, in conspiracy with the first defendant, failed to investigate the threat when Mrs Slaveska and her husband made a formal complaint.

Incident 15

1. In addition, Mrs Slaveska alleged that the first, twenty-second, twenty-third and twenty-fourth defendants conspired against Mrs Slaveska and her family and negligently failed to investigate their complaints (‘Incident 15’).  This allegedly caused Mrs Slaveska to experience further fear, further dizzy spells, further anxiety, further depression, further panic attacks and further shock.  This is the third undated incident.

Incident 16

1. Mrs Slaveska alleged that on or about 2 June 2010, the twenty-first defendant, in conspiracy with the first defendant, tried to kill Mrs Slaveska and Mr Slaveski when they were driving to the Supreme Court for Mr Slaveski’s legal proceedings against the State of Victoria (‘Incident 16’).  Mrs Slaveska claimed that the twenty-first defendant threatened to kill Mrs Slaveska and Mr Slaveski, and that when she called 000 the first defendant failed to assist her.  Mrs Slaveska claimed that the incident caused her to suffer a panic attack and fear for her life.

Incident 17

1. Mrs Slaveska alleged that on 1 July 2010, the first and twenty-first defendants conspired with NSW Bankstown police to arrest Mrs Slaveska and her family and to confiscate recordings Mr Slaveski had made of Incident 16 (‘Incident 17’).  Mrs Slaveska claimed that this incident constituted assault and battery of her person and that it caused her to suffer further psychological injury.

1. As a result of each of the above incidents, Mrs Slaveska claimed compensatory, aggravated and exemplary damages.

1. All of the defendants denied the allegations made against them.

The proceeding below

1. The respondents’ application before the associate judge asserted that all of Mrs Slaveska’s claims apart from those relating to Incidents 16 and 17 were time barred under the Limitations Act, and that time should not be extended so as to enable her to pursue them.

1. The respondents sought summary judgment in respect of all claims apart from the claim relating to Incident 17.  The respondents sought that the Incident 17 claim be struck out, however they did not oppose Mrs Slaveska being granted leave to re-plead that claim.

1. In respect of Incidents 1 to 10 and 12, the respondents submitted that the claims arising out of those incidents could and should have been pleaded by Mrs Slaveska in Mr Slaveski’s proceeding, or alternatively Mrs Slaveska should have brought proceedings of her own to be heard at the same time, based on the estoppel principles propounded in Port of Melbourne Authority v Anshun Pty Ltd.[16]  In respect of Incident 16, they submitted that while the relevant claim was not part of Mr Slaveski’s proceeding, the incident was the subject of evidence given by Mrs Slaveska and Mr Slaveski in subsequent contempt proceedings[17] and there was a risk of inconsistent judgments if the claim proceeded to trial.  Accordingly, the respondents submitted that Mrs Slaveska was estopped from bringing claims in respect of Incidents 1 to 10, 12 and 16.

   [16](1981) 147 CLR 589 (‘Anshun’).

   [17]Following the delivery of judgment in Mr Slaveski’s proceeding, Kyrou J invited submissions from the parties as to whether various conduct of Mr Slaveski during the course of the trial constituted contempts of court and what should follow from that: see Slaveski v Victoria [2010] VSC 441 [67]–[75]. This culminated in an order on 25 May 2011 that the Prothonotary apply by originating motion for punishment of a contempt of court constituted by certain conduct of Mr Slaveski in court on 2 June 2010. In summary, Mr Slaveski was claimed to have been abusive of and to have alleged impropriety, partiality and corruption by the presiding judge and the court, to have disrupted the proceeding and to have threatened the presiding judge. The contempt was found proven and Mr Slaveski was sentenced to a two month term of imprisonment: R v Slaveski [2011] VSC 643 (Whelan J); R v Slaveski (Sentence) [2012] VSC 7 (Whelan J).

1. The respondents also sought summary judgment in respect of the claims arising from Incidents 11, 12 and 15, which relate to alleged failures to investigate complaints made by Mrs Slaveska and her family.  The respondents submitted that they have a good defence on the merits to those claims, being Kyrou J’s finding in Mr Slaveski’s proceeding that police officers do not owe a duty of care to a particular complainant to investigate his or her complaint.

1. The associate judge concluded that all of Mrs Slaveska’s causes of action arising from Incidents 1 to 14 were brought after the expiry of the applicable limitation periods. Her Honour found that the six year limitation period applying to the Incident 1 claims expired on 7 September 2006,[18] and that the limitation periods applying to the Incidents 2 to 14 claims had also expired by the time Mrs Slaveska’s writ was issued on 24 November 2011, because the relevant causes of action were discoverable more than three years before that date.[19]  No extension of time was granted in respect of any of the causes of action arising from Incidents 1 to 14 and thus summary judgment was awarded to the respondents in respect of those claims.[20]  Her Honour would also have granted summary judgment in respect of the Incident 12 claims on the basis that the respondents had shown a good defence on the merits.[21]

   [18]Reasons [126]–[127].

   [19]Reasons [153], [156], [161]. See further the discussion from paragraph [45] of these reasons.

   [20]Reasons [217], [224].

   [21]Reasons [237].

1. The associate judge considered that there was insufficient material before the Court in respect of Incident 15 to allow a conclusion that Mrs Slaveska’s claims in relation to that incident were time barred,[22] however her Honour struck out the relevant paragraph of Mrs Slaveska’s Amended Statement of Claim on the basis that it failed to plead any material facts, and conflated negligence and conspiracy allegations.[23]

   [22]Reasons [116], [167].

   [23]Reasons [167], [251].

1. Mrs Slaveska’s claims in relation to Incident 16 were issued before the applicable limitation period expired.  The associate judge was neither persuaded that those claims created the prospect of a judgment inconsistent with the judgment in Mr Slaveski’s contempt proceedings,[24] nor satisfied that the pleading was so deficient that these claims should be struck out.[25]  Accordingly, these claims survived.

   [24]Reasons [111]. See the summary of Mr Slaveski’s contempt proceedings we have set out at footnote 17 of these reasons.

   [25]Reasons [253].

1. The associate judge struck out Mrs Slaveska’s claim in respect of Incident 17 on the basis that it did not disclose a cause of action and was insufficiently pleaded.[26]  The associate judge granted Mrs Slaveska leave to re-plead her claims in respect of Incidents 15 and 17.[27]

   [26]Reasons [254].

   [27]Reasons [255].

1. While the associate judge was satisfied that Mrs Slaveska’s claims regarding Incidents 1 to 10 and 12 arose from the same facts relied upon by Mr Slaveski during his proceeding,[28] her Honour was not satisfied that an Anshun estoppel would have prevented Mrs Slaveska from bringing those claims (had they not been time barred) given that Mrs Slaveska was not a party to Mr Slaveski’s proceeding.[29]  As we have noted already, the associate judge did not decide whether Mrs Slaveska’s claims constituted an abuse of process, on the basis that that aspect of the defendants’ summons had received scant attention in submissions.[30]

   [28]Reasons [52].

   [29]Reasons [102]–[106].

   [30]Reasons [69], [103].

1. On 18 November 2013, the associate judge made orders, which we relevantly summarise as follows:

   (1)That Mrs Slaveska’s summons seeking an extension of time under s 27K of the Limitations Act be dismissed;

   (2)That Mrs Slaveska’s claims contained in paragraphs 27 to 90 inclusive of her Amended Statement of Claim (pertaining to Incidents 1–14) be dismissed;

   …

   (7)That Mrs Slaveska pay 50% of the defendants’ costs of the defendants’ summons seeking summary dismissal and of her own summons seeking an extension of time, such costs to be taxed in default of agreement.

   Grounds of Appeal/Notice of Contention

1. In this proceeding, Mrs Slaveska appeals against orders 1 and 2 of the associate judge’s orders.[31]  She also seeks leave to appeal against order 7.  She appeals on the following grounds:

   [31]On 7 March 2014, by consent, Mrs Slaveska was granted an extension of time to 14 March 2014 to serve her notice of appeal.  She was also granted an extension of time within which to seek leave to appeal against order 7, to the same date.

1.   The learned Associate Justice erred by failing to apply the correct limitations period to some of the relevant claims and thereby wrongly concluded they were time barred.

a.the learned Associate Justice erred by proceeding on the basis that each of the relevant claims was a claim for damages for personal injury, and consequently by applying the limitation period for personal injury claims.  Insofar as they sought relief other than damages for personal injury, claims arising from incidents 5–14 inclusive were within time as they occurred within six years of when the proceedings were commenced.

b. by finding that the limitations period s27D applied to all of the applicant’s claims, the learned Associate Justice erred.  Insofar as the applicant was claiming damages other than for personal injury, she was governed by section 5(1)(a) of the Act, not section 27D, and was within time.

2.   The learned Associate Justice erred by finding that all causes of action were discoverable within three years of the applicant issuing her writ and were therefore time barred.

a. the learned Associate Justice erred by finding incident 5 discoverable within the three year period as the causes of action alleged against the 13th, 15th and 16th respondents arising from incident 5 were not discoverable until early 2010, and therefore, were not time barred.

b.the learned Associate Justice erred when concluding what “reasonable steps” the applicant should have undertaken under s27F(1) and (2).

3.   The learned Associate Justice erred by failing to properly exercise her discretion in determining whether to allow the applicant an extension of time in that she:

a.        failed to take into account relevant considerations; and

b.        took into [account] irrelevant considerations.

1. The respondents, by notice of contention, submit that to the extent necessary, the associate judge’s decision in relation to Incidents 1 to 10 and 12 should be affirmed on the grounds that an Anshun estoppel applies, and/or that it would be an abuse of process to permit Mrs Slaveska to proceed with her claims.

1. Neither Mrs Slaveska nor the respondents seek to challenge the associate judge’s decision in relation to the claims concerning Incidents 15 to 17.

The applicable limitation period

1. The associate judge held that Mrs Slaveska’s causes of action arising out of Incidents 1 to 14 were time barred.  Ground 1 of Mrs Slaveska’s notice of appeal alleges that the associate judge erred by applying the incorrect limitation period to her claims arising out of Incidents 5 to 14.[32]

   [32]However, Mrs Slaveska pressed this ground only in relation to her claims arising from Incidents 5 to 10, 12 and 13: see paragraph [60] of these reasons.

1. As we observed above, the associate judge found that a six year limitation period applied to Mrs Slaveska’s claims arising out of Incident 1, and that time commenced to run on the date of the incident, and so expired on 7 September 2006.[33]  That finding was not subject to challenge in the present appeal.

   [33]Reasons [126]–[127].

1. On the question of the limitation period that applied to the incidents occurring after 21 May 2003, the associate judge stated:

The periods of limitation applicable to actions for damages for personal injury were … amended in 2003 by the Wrongs and Limitations (Insurance Reform) Act 2003.  By s 14 of that Act, a new part “Part IIA Personal Injury Actions” was inserted into the Limitation of Actions Act. By s 11 of the amending Act, s 5 of the Limitation of Actions Act was amended to provide that Part IIA, rather than s 5, applies to a cause of action for damages for personal injury. By s 12 of the amending Act, amendments were made to the earlier provisions that applied in respect of extension of time, to provide that Part IIA was now to apply to applications for extension of time.

Under Part IIA of the Limitation of Actions Act, there are two limitation periods that apply to a cause of action for damages for personal injury (with the exception of injuries arising from work and traffic accidents and certain other accidents that are not relevant to this proceeding).  Section 27D provides as follows:

27D Limitation period for personal injury actions — general

(1)  An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire—

(a)  the period of 3 years from the date on which the cause of action is discoverable by the plaintiff;

(b)  the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.

(2)  This section does not apply to a cause of action that is founded on a personal injury to a person who was under a disability at the date of the act or omission alleged to have resulted in the personal injury.

The Limitation of Actions Act makes special provision for persons under a disability at the time of the act or omission alleged to have caused personal injury. Section 3(2) of the Act deems a person to be “under a disability” while that person is a minor or of unsound mind. Section 3(3) provides that a person is conclusively presumed to be of “unsound mind” if a protected or represented person under the Guardianship and Administration Act 1986. The plaintiff asserted in her first affidavit that she was under a disability, but she did not develop that assertion in argument or provide any further evidence in support.  I do not consider that assertion proved.[34]

[34]Reasons [120]–[122] (citations omitted).

1. Her Honour continued:

Section 27F of Part IIA provides when a cause of action is “discoverable”.  The section provides as follows:

27F Date cause of action is discoverable

(1)  For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts—

(a)  the fact that the death or personal injury concerned has occurred;

(b)  the fact that the death or personal injury was caused by the fault of the defendant;

(c)  in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2)  A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.

(3)  In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

(4)  (Not relevant).[35]

[35]Reasons [124].

1. In relation to s 27F, her Honour observed:

Neither party addressed me at length as to the meaning of s 27F or its application to the plaintiff’s proceeding.  The defendants’ written submissions asserted that the three year limitation period in respect of incidents 2–15 had expired prior to issue of her writ and made detailed submissions in relation to extension of time only.  The implication is that in respect of each of these incidents the defendants submit that the cause of action was “discoverable” on the date of the acts or omissions of which complaint is made, which date is as set out in the table they prepared.[36]

[36]Reasons [129].

1. Her Honour found:

In respect of incidents after 21 May 2003, the three year limitation period runs from the date on which the cause of action is “discoverable”, with an absolute bar after twelve years from the date of the relevant act or omission.  The plaintiff has pleaded dates for incidents 2–10 inclusive, and 13–14, being dates in the period 18 December 2003 to 23 September 2008.  None of those dates are more than twelve years before she filed her writ on 24 November 2011, but all are more than three years before she filed her writ.[37]

[37]Reasons [128].

1. Her Honour then set out an analysis of when Mrs Slaveska knew or ought to have known of the matters set out in s 27F(1) in respect of each of Incidents 2 to 15, the detail of which need not be set out for present purposes.

1. In respect of the dated incidents after 21 May 2003, her Honour concluded:

all causes of action in respect of incidents 2–10, and 13–14 were discoverable by three years before the plaintiff issued her writ.  The limitation period in respect of each incident had accordingly expired before issue.[38]

[38]Reasons [153].

1. Mrs Slaveska did not plead a date for the acts or omissions the subject of Incidents 11, 12 and 15.  In respect of Incident 11, her Honour found that the claim was out of time because any causes of action Mrs Slaveska had against the twenty-second, twenty-third and twenty-fourth defendants for personal injury arising from an alleged failure to investigate were discoverable by early May 2008, being more than three years prior to the issue of her writ.[39]

   [39]Reasons [161]–[163].

1. In respect of Incident 12, her Honour found that the claim was out of time because the ‘time during which this cause of action was discoverable ended in November 2006’.[40]

   [40]Reasons [156].

1. In respect of Incident 15, her Honour stated:

I am unable to be confident as to when the cause of action in respect of incident 15 was discoverable, for want of necessary particularisation in the amended statement of claim, including as to the complaints made and the dates on which they were made and by which they should have been investigated.  It follows that the defendants have not established that that claim is out of time, but only (subject to summary judgment on the basis of there being no duty to investigate) that it should be re-pleaded.[41]

[41]Reasons [167].

1. Accordingly, the associate judge held that Mrs Slaveska’s claims arising from Incidents 1 to 14 were time barred by the time she commenced her proceeding.

1. It is apparent from the associate judge’s discussion[42] that her Honour proceeded on the basis that the limitation period that applied to the claims arising from Incidents 2 to 15 was the period provided for in Part IIA of the Limitations Act. That Part is entitled ‘Personal Injury Actions’ and it generally provides for a limitation period of three years from the time the cause of action was discoverable, expiring in any event no later than 12 years after the date of the act or omission alleged to have resulted in the relevant death or personal injury.

   [42]Referred to at paragraphs [47] ff above.

1. Section 27B(1), which governs the application of Part IIA, provides:

This Part applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the action for damages is founded in tort, in contract, under statute or otherwise.

1. Section 27B(2) sets out various actions for damages which are expressly excluded from scope of Part IIA, none of which are relevant for present purposes.

1. Mrs Slaveska submitted that Part IIA of the Act did not apply to all of her claims. She argued that to the extent that they included actions for trespass to the person, trespass to land and trespass to goods, her claims arising from Incidents 5 to 10, 12 and 13 (‘the trespass claims’) were not ‘cause[s] of action for damages that relate to … personal injury’ as required by s 27B(1).[43] She submitted that the limitations period that applied to those claims was not the three year period applicable to personal injury claims, but rather the general six year period provided for by s 5(1)(a). It followed, in her submission, that as the incidents giving rise to the trespass claims occurred within six years of when the proceeding was commenced, those claims were not time barred.

   [43]Although Ground 1 of Mrs Slaveska’s Notice of Appeal averred that insofar as they sought relief other than damages for personal injury, all of her claims arising from Incidents 5 to 14 were within time, in submissions this ground was pressed only in relation to the claims arising from Incidents 5 to 10, 12 and 13.

Mrs Slaveska’s submissions

1. Mrs Slaveska contended that in order to determine whether a claim is a ‘cause of action for damages that relate to … personal injury to a person’ one must identify the underlying legal interest protected by the relevant cause of action.  She submitted that her claims for false imprisonment, assault, trespass to land and trespass to goods were not actions for personal injury damages.  In this regard, she relied on the decision in New South Wales v Williamson, where French CJ and Hayne J held:

False imprisonment and recovery on a claim for personal injury damages

The costs limiting provisions of the Legal Profession Act 2004 are engaged (s 338(1)) where an amount has been “recovered on a claim for personal injury damages”. As already explained, “personal injury damages” was defined (s 337(1)) to have the same meaning as in Pt 2 of the Liability Act. And as has already been noted, s 11 of the Liability Act defined “personal injury damages” as “damages that relate to the death of or injury to a person” and “injury” as “personal injury”, including “impairment of a person’s physical or mental condition”.

The respondent sued the appellant for trespass to the person (alleging several instances of battery) and false imprisonment.  He alleged that the batteries he had suffered had caused him personal injury, but it was far from clear that he alleged that the wrongful deprivation of his liberty had itself impaired his physical or his mental condition.

Often but not always, a battery will cause personal injury to the victim.  False imprisonment is often accompanied by an assault and battery and the accompanying battery may (but need not) cause personal injury.  There may be cases where an act of false imprisonment itself causes psychiatric, even physical injury.

Even assuming, however, that the respondent did allege that the act of wrongful imprisonment (as distinct from the batteries he alleged he had suffered) had caused him some personal injury, the claim for false imprisonment was necessarily a claim for damages on account of the deprivation of liberty with any accompanying loss of dignity and harm to reputation. The deprivation of liberty (loss of dignity and harm to reputation) is not an “impairment of a person’s physical or mental condition” or otherwise a form of “injury” within s 11 of the Liability Act. The claim for false imprisonment, at least to the extent to which it sought damages for deprivation of liberty, is not a “claim for personal injury damages”.[44]

[44](2012) 248 CLR 417, 428–9 [31]–[34] (citations omitted) (‘Williamson’).  Kiefel J agreed: at 431 [45].

1. Mrs Slaveska also relied on Campbell JA’s judgment in the Court of Appeal in New South Wales v Williamson, where his Honour stated:

Mr Simpkins submits that where there is a claim of false imprisonment, as part of which it is contended that the plaintiff has, in consequence of the false imprisonment, sustained some effect on his or her mental state, that claim is for personal injury damages.  I do not accept that claiming that one of the consequences of a false imprisonment is the suffering of a personal injury, is sufficient to characterise the entire claim for false imprisonment as one for “personal injury damages”.[45]

[45]New South Wales v Williamson [2011] NSWCA 183 [66].

1. Mrs Slaveska submitted that underlying the tort of false imprisonment is protection against unjustified deprivation of liberty and loss of dignity;[46] that the underlying interest protected by the tort of trespass to land is the right of exclusive possession;[47] that the underlying interest protected by the tort of trespass to goods is the right to undisturbed actual possession of goods;[48] and that the underlying interest protected by the tort of assault is the right to be free from the apprehension of imminent harmful or offensive contact.[49]

   [46]Relying on Williamson (2012) 248 CLR 417, 429 [34] (French CJ and Hayne J), 421 [45] (Kiefel J); Myer Stores Ltd v Soo [1991] 2 VR 597, 603 (Murphy J).

   [47]Relying on Plenty v Dillon (1991) 171 CLR 635, 645 (Mason CJ, Brennan and Toohey JJ) as approved in New South Wales v Ibbett (2006) 229 CLR 638, 646 [29]–[30] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ).

   [48]Relying on Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, 224 (Dixon J).

   [49]Relying on Rixon v Star City Pty Ltd (2001) 53 NSWLR 98, 114 [57] (Sheller JA, with whom Priestley and Heydon JJA agreed). Kyrou J’s judgment in Mr Slaveski’s proceeding also refers to ACN 087 528 774 Pty Ltd v Chetcuti (2008) 21 VR 559, 565 [16]: Slaveski v Victoria [2010] VSC 441, [223].

1. In Mrs Slaveska’s submission, the damages recoverable upon the violation of those underlying interests are not personal injury damages, even if each of the torts may occasion consequential personal injury (and a claim for compensatory damages).

1. Mrs Slaveska contended that if the Parliament had intended for Part IIA to apply to any claim for damages that included a component for personal injury, s 27B(1) could have adopted the language used in ss 5(1A) and 23A(1): ‘where the damages claimed consist of or include damages in respect of personal injuries to any person.’[50]  Those provisions have been considered by the High Court to cover intentional torts, through their ‘breach of duty’ limb.[51]  That Parliament did not use the same phrase in s 27B suggests, in Mrs Slaveska’s submission, that it intended for that section to have a different operation.

   [50]Section 23A(1) (emphasis added). The relevant part of s 5(1A) is in similar terms.

   [51]See, eg, Stingel v Clark (2006) 226 CLR 442, 453–4 [16]–[17] (Gleeson CJ, Callinan, Heydon and Crennan JJ), 469–70 [67]–[72] (Gummow J).

1. Mrs Slaveska contended, relying on passages from the Ipp Report,[52] that the use of the phrase ‘a cause of action for damages that relate to the death of or personal injury to a person’ in s 27B(1) was not intended to enable that section to cover intentional torts, but rather was aimed at capturing negligence claims whether or not framed as a negligence action. Recommendation 23 of the Ipp Report recommends that ‘all claims for damages for personal injury … resulting from negligence [be] governed by the limitation provisions recommended in this Chapter’.[53]

   [52]Commonwealth of Australia, Review of the Law of Negligence (September 2002) (‘Ipp Report’).  The Ipp Report was one of the motivations behind the introduction of Part IIA: see Victoria, Parliamentary Debates, Legislative Assembly, 21 May 2003, 1782, 1784 (Steve Bracks, Premier).

   [53]Ipp Report, 87 (emphasis added).

1. The second reading speech to the amending legislation supports the view that the legislative reforms were directed primarily at negligence claims.[54]

   [54]Victoria, Parliamentary Debates, Legislative Assembly, 21 May 2003, 1782 (Steve Bracks, Premier): ‘It is important to get the balance right between the needs of people injured through negligence, and the needs of businesses, individuals and community groups to have access to insurance.  These reforms strike that balance.’ See also at 1788.

1. Mrs Slaveska also relied upon the allowance in s 27F for situations where an injury manifests itself at a later time in support of her submission that the real purview of Part IIA is negligence claims.

Submissions of the respondents

1. The respondents submitted that s 27B(1) is directed not at the underlying interests protected by the cause of action, but at the relationship between the claim for damages and the alleged personal injury. On their argument, the words ‘that relate to’ are broad and should be interpreted as ‘that are associated with’. In support of this submission, they rely on the decision of Kaye J in Caven v Women’s and Children’s Health, where his Honour relevantly held:

the question for me is whether, in terms of s 27B of the Act, the damages claimed by the plaintiffs for the cost of care and upkeep of Jared are damages “that relate to the … personal injury” of Ms Caven, namely her continued pregnancy and the childbirth. In this sense, the ordinary English meaning of “relate”, is “to bring into or establish association, connection, or relation … to have reference to”. The section does not define what type of relationship must exist between the cause of action for damages and the personal injury identified. None the less, for the reasons I have set out above, it is clear that there was an intimate and essential relationship between the damages sought by the plaintiffs for the cost of care of Jared and the personal injury (pregnancy and childbirth) of Ms Caven. Ms Caven’s pregnancy, and, more relevantly, her continued pregnancy and childbirth, was both a product of, and a natural and integral feature of, the marital relationship between the two plaintiffs. So too is the joint obligation of the plaintiffs to care for and maintain the child born of that pregnancy. The relationship between Ms Caven’s pregnancy and the obligation of the plaintiffs to care for Jared is, on any view, direct, proximate and substantial. It would be wholly artificial to characterise such a claim for damages as one which is “unrelated” to the “personal injury” of Ms Caven constituted by her continued pregnancy and childbirth. It therefore follows that the damages claimed by the plaintiffs for the cost of care and upkeep of Jared do “relate to” the personal injury of Ms Caven for the purposes of s 27B(1) of the Act.[55]

[55](2007) 15 VR 447, 463 [50] (‘Caven’).

1. The respondents contended that accepting Mrs Slaveska’s construction would effectively read the word ‘only’ between the words ‘relate’ and ‘to’, or add actions for intentional torts such as trespass, false imprisonment and assault to the exceptions set out in s 27B(2).  They contended that Williamson did not require that result. The respondents construed s 27B(1) as requiring only that the ‘damages’ relate to the alleged personal injury, not that the ‘cause of action for damages’ as a compound must relate to that injury.

1. The respondents further submitted that s 27F does not assist as it deals with knowledge of the injury rather than of the cause of action.

Damages that ‘relate to’ personal injury

1. To repeat, s 27B(1) of the Limitations Act provides:

This Part applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the action for damages is founded in tort, in contract, under statute or otherwise.

1. On the face of that provision, Part IIA applies to:

(e)               a cause of action; where

(f)                the cause of action is for damages; and

(g)               those damages relate to the death of or personal injury to a person;

whatever the legal foundation for the cause of action.

1. Part IIA of the Act applies to the ‘cause of action for damages’.[56]  However, it is only the damages that must relate to a death or personal injury.  If it were otherwise, the verb ‘relate’ would agree with the singular cause of action (‘relates’) rather than the plural damages.

   [56]In relation to the meaning of this compound expression, see further the discussion from paragraph [112] of these reasons.

1. The words of the provision do not require consideration of the elements of the cause of action.  On the contrary, the particular cause of action pleaded is immaterial as it is the nature of the damages claimed that determines whether Part IIA applies.  If there is ‘a cause of action for damages that relate to … personal injury’, Part IIA applies ‘regardless of whether the action for damages is founded in tort, in contract, under statute or otherwise’.[57]

   [57]Limitations Act, s 27B(1) (emphasis added). This contrasts with s 18A(1) of the Limitation Act 1969 (NSW) which relevantly provides: ‘This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury …’ (emphasis added).

1. Mrs Slaveska pleaded a cause of action in false imprisonment.  It is clear that where false imprisonment is established, damages may be claimed for deprivation of liberty and any accompanying loss of dignity or harm to reputation.[58] Such damages are not damages that relate to personal injuries, which are defined in s 3(1) of the Limitations Act to include ‘any disease and any impairment of a person’s physical or mental condition’. Nevertheless, in a false imprisonment action damages may also be claimed for impairment of the plaintiff’s physical or mental condition consequent upon the false imprisonment.[59]  In our view, damages of that kind are damages that relate to personal injury to a person. While it may be accepted that the underlying legal character of a false imprisonment action is protection against the unjustified deprivation of liberty, it remains that if a plaintiff seeks damages for personal injury consequent upon a false imprisonment, those damages ‘relate to’ personal injury within the meaning of s 27B(1). We do not consider that such damages could be said to be ‘unrelated’ to personal injury. By extension, claims for damages for personal injury consequent upon acts of assault, trespass to land or trespass to goods are also claims for damages that ‘relate to’ personal injury.

   [58]Williamson (2012) 248 CLR 417, 429 [34] (French CJ and Hayne J).

   [59]Ibid 429 [35].

1. Although Recommendation 23 of the Ipp Report proposed that the shortened limitation period should apply to all claims for damages for personal injury resulting from negligence, there is nothing in the wording of s 27B(1) that calls for a distinction to be made between damages that relate to a personal injury resulting from a failure to take reasonable care and damages that relate to other personal injuries. While negligence was the focus of the Ipp Report, the report’s objective ‘of limiting liability and quantum of damages arising from personal injury and death’[60] need not be achieved only by reforming the law of negligence. That the legislature omitted the phrase ‘resulting from negligence’ from s 27B(1) suggests that it did not intend for the section to be confined in this way.

   [60]Ipp Report, 25 [1.3].

1. The decision in Williamson does not require a different result.  On the one hand, the Court makes clear that a claim for false imprisonment necessarily involves a claim for damages on account of a deprivation of liberty so, ‘at least to [that] extent’, it is not a claim for personal injury damages.[61] Yet on the other hand, the Court also observes that personal injury may accompany that tort, including personal injury consequent upon the false imprisonment itself,[62] and it admits of the possibility that an award of damages may be made for such personal injury.[63]  In that case, however, the award of damages in the District Court was a gross award and it was unclear whether any part of the award was for personal injury of that kind.  The Court held that the award was ‘consistent with the allowance of damages only for the deprivation of liberty’ such that it was ‘not possible to show that the sum … was “recovered on a claim for personal injury damages”.’[64]

   [61]Williamson (2012) 248 CLR 417, 429 [34] (French CJ and Hayne J), 431 [45] (Kiefel J agreeing).

   [62]Ibid 428–9 [34] (French CJ and Hayne J).

   [63]Ibid 429 [35] (French CJ and Hayne J).

   [64]Ibid.

1. What is clear is that the High Court in Williamson did not hold that a claim for damages for personal injury consequent upon an act of false imprisonment cannot be a ‘cause of action for damages that relate to a personal injury’ because of the underlying interest protected by the tort of false imprisonment.  If this had been their Honours’ conclusion, there would have been no need to examine how the awarded damages were computed at all.  It would have been sufficient to say that because the claim was for damages for or consequent upon an act of false imprisonment, the damages claimed could not be ‘personal injury damages’.

1. The decision of Smith J in Graham v Robinson[65] provides some support for the approach for which Mrs Slaveska contends.  In that case Smith J concluded that a claim for damages for emotional hurt and distress brought as part of an action for defamation was a claim ‘in respect of’ injury to reputation, not personal injury.[66]  His Honour reached this view because he considered that the physical or mental injury may need to be alleged as an element of the cause of action for the damages to be ‘in respect of personal injury’.[67]  However, this view was expressed in obiter and, as Smith J acknowledged, the matter was not argued before him.[68] His Honour was also addressing wording of the kind that appears in ss 5(1A) and 23A(1) rather than the formulation found in s 27B(1).[69]

   [65][1992] 1 VR 279.

   [66]Ibid 281–2.

   [67]Ibid 281.

   [68]Ibid 281–2.

   [69]Ibid 280. Section 3 of the Magistrates’ Courts Act 1971 relevantly provided that there was a jurisdictional limit of $5,000 ‘in the case of an action where the damages claimed consist of or include damages in respect of personal injury’.

1. It is not obvious to us that the terms of s 27B(1) should be construed more narrowly than the phrase with which Smith J was concerned: ‘where the damages claimed consist of or include damages in respect of personal injury’. On the contrary, ‘damages that relate to personal injury’ would appear broader in scope than ‘damages in respect of personal injury.’ Even assuming that Smith J’s view is to be preferred in respect of the wording his Honour was addressing, there would not appear to be any basis for requiring a personal injury for which damages are claimed to be alleged as an element of the cause of action in order for the damages to ‘relate to’ personal injury.

1. We observe too that s 27D(2) uses the phrase ‘a cause of action that is founded on a personal injury’ when providing that Part IIA does not apply to certain actions where the injured person was under a disability at the date of the act or omission alleged to have resulted in the injury.  This formulation seems much narrower, and more apt if the intention is to tie the personal injury to the elements of the cause of action.

1. The respondents relied on Kaye J’s decision in Caven.  In that case, his Honour observed that the type of relationship that must exist between the cause of action for damages and the personal injury was not defined, yet held that there was an intimate and essential relationship between the personal injury (i.e. Ms Caven’s pregnancy and childbirth) and the damages sought for the costs of the child’s care.[70]  That case too may be distinguished, since in Caven there was no doubt that the cause of action (negligence) was founded on a personal injury.  It is nevertheless noteworthy that his Honour concluded that the claimed cost of care damages related to personal injury and that the claim was not one for pure economic loss.[71]

   [70](2007) 15 VR 447, 463 [50].

   [71]Ibid.

1. In the circumstances, we consider that it would be wholly artificial to characterise the compensatory damages Mrs Slaveska claims as ‘unrelated’ to personal injury, assuming her alleged injuries would constitute ‘personal injury’, a matter to which we will turn.

1. We therefore adopt the view that pursuant to s 27B(1), Part IIA applies to claims for damages that relate to any personal injury, consequent upon whatever wrong, and that as a general rule (subject to any other relevant provisions of the Limitations Act), the limitation period provided for in s 27D applies to such claims.

Did Mrs Slaveska allege personal injury?

1. A further submission of Mrs Slaveska was that Part IIA did not apply to her claims because the damages she claimed in respect of most of the incidents were not for ‘personal injury’ since they were not for physical injuries or recognised psychiatric illnesses.[72]  She relied on a number of decisions in support of the proposition that the term ‘personal injury’ must be considered as limited in that way.

   [72]Apart from the damages for post-traumatic stress disorder which Mrs Slaveska claimed in respect of Incident 5.

1. First, Mrs Slaveska relied on the High Court’s decision in Tame v New South Wales where it was not in dispute that ‘save in exceptional circumstances, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness’.[73]  The Court adopted that position.[74]

   [73](2002) 211 CLR 317, 329 [7] (Gleeson CJ), citing White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, 469 (Lord Goff) (‘Tame’).

   [74]For example, Gaudron J stated that ‘damages are recoverable in negligence only for a recognisable psychiatric injury and not for emotional distress’: ibid 338–9 [44]. See also at 382 [193] (Gummow and Kirby JJ).

1. It is plain on the authorities that psychological injury not amounting to a recognised psychiatric illness will fail to meet the damage requirement of the tort of negligence.  However, few of Mrs Slaveska’s claims are framed as negligence claims.[75]  Indeed, it is significant to her argument on the applicable limitations period that they are not.

   [75]In the table annexed to the associate judge’s reasons, her Honour queries whether a negligence claim may arise from Incidents 1, 11, 12, 14, 15 and 16.

1. To the extent that Mrs Slaveska did bring negligence claims alleging psychological injury, these would be time barred on her own argument.  But even if she could pursue them, to recover damages she would have to show that her injuries amounted to recognised psychiatric illnesses.  Insofar as her injuries do not amount to such illnesses she would not, in any event, have a claim.  Thus, the proposition in Tame does not advance her case.

1. For the reasons set out earlier, we have rejected Mrs Slaveska’s submission that Part IIA is concerned only with actions in negligence.  For that reason alone, it would be inappropriate to limit the definition of ‘personal injury’ for the purposes of that Part by reference to what is required to establish negligence, assuming that Mrs Slaveska’s reliance on Tame amounted to such a submission, although this was by no means clear.

1. The definition of ‘personal injuries’ in s 3(1) of the Limitations Act ‘includes … any impairment of a person’s physical or mental condition’.

1. Mrs Slaveska relied on the consideration given to that definition in Cavenett v Commonwealth[76] and to similar definitions in Graham v Robinson[77] and New South Wales v Ibbett.[78]

   [76][2007] VSCA 88 (‘Cavenett’).

   [77][1992] 1 VR 279.

   [78](2005) 65 NSWLR 168 (‘Ibbett’).

1. In Cavenett, this Court held that where a plaintiff seeks damages for a mental injury, time does not start to run under s 5(1A) of the Limitations Act ‘until the plaintiff knows that his or her mental condition is a mental illness which would be recognised by the medical profession as such’.[79] The implication, on Mrs Slaveska’s argument, is that since a plaintiff must know she has suffered the ‘personal injuries’ she alleges before time can start to run under s 5(1A), mental conditions cannot be ‘personal injuries’ under the Limitations Act unless they are recognised illnesses. This does not follow. It is important to appreciate that Cavenett was a negligence case;  to succeed in his action the plaintiff was required to establish that his mental illness was a recognised psychiatric illness.[80]  The Court was not required to consider the position for a cause of action that lacked such a requirement.  Moreover, what was in issue was the plaintiff’s knowledge of the personal injuries in respect of which he was claiming damages.  As Nettle JA stated:

As Byrne J pointed out … in Falcon v McCann, time cannot begin to run under s 5(1A) until a plaintiff knows that he or she suffers from the disease or disorder which is the subject of the claim.  Axiomatically, one cannot know that one has a disease or disorder until one knows at least the nature of one’s affliction.[81]

In finding that time only began to run when the plaintiff knew he had a recognised psychiatric illness, the Court required only that the plaintiff have knowledge of his injury in the sense in which it would form the basis of his (negligence) claim.[82]  It did not limit the definition of ‘personal injury’ more broadly in the way contended by Mrs Slaveska.

[79]Cavenett [2007] VSCA 88, [97] (Nettle JA), [3] (Maxwell ACJ), [30]–[31] (Chernov JA).

[80]Ibid [31] (Chernov JA).

[81]Ibid [98] (Nettle JA), citing Falcon v McCann [1998] VSC 83, [13] (emphasis added).

[82]See also Basten JA in Commonwealth v Smith [2005] NSWCA 478 at [181], as cited at Cavenett [2007] VSCA 88, [30] by Chernov JA: ‘the [NSW] Limitation Act should be understood as picking up the concept of “personal injury” in the sense necessary to constitute a basis for a claim for damages’.

1. Graham v Robinson[83] was a defamation case concerning the interpretation of ‘personal injury’ in the Magistrates’ Courts Act 1971.  The term was not defined in that Act, but Smith J applied the definition in s 37(2) of the County Court (Jurisdiction) Act 1972 (relevantly identical to that in the Limitations Act). In the absence of any express authority on the point, his Honour concluded that ‘personal injury’ did not extend beyond physical injury and mental illness to include emotional hurt. His Honour was ‘encouraged to this view’ by the fact that grief or sorrow could not form the basis of a claim in negligence.[84] Smith J’s decision provides some support for Mrs Slaveska’s contention, but for the reasons set out earlier, we do not consider that the elements of a claim in negligence conclude the scope of ‘personal injury’ in the Limitations Act. In addition, the legislation before Smith J had a different purpose to the Limitations Act. Consistently with the legislative objective in that case, his Honour’s narrow interpretation ensured that cases of mental illness would proceed to higher courts more readily than cases of mere emotional hurt, but if applied in Mrs Slaveska’s case, that interpretation would counter-intuitively result in emotional hurt cases having a more generous limitation period than cases of recognised psychiatric illness.

   [83][1992] 1 VR 279, discussed at paragraph [80] above.

   [84]Ibid 281, citing Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 394 (Windeyer J) and Jaensch v Coffey (1984) 155 CLR 549, 587 (Deane J).

1. Finally, Mrs Slaveska relied on the following remarks Spigelman CJ made in obiter in New South Wales v Ibbett:

The concept of ‘personal injury’ is reasonably well-established in Australian legal practice.  It has rarely, if ever, been used to refer to harm to reputation, deprivation of liberty, or to injured feelings such as outrage, humiliation, indignity and insult or to mental suffering, such as grief, anxiety and distress, not involving a recognised psychological condition. … An award for the emotional harm involved in apprehension of personal violence would not generally be regarded as an award for ‘personal injury damages’.

The issue is whether such harm should be so regarded by reason of the reference, in the inclusive definition of ‘injury’ in s 11 [of the Civil Liability Act 2002 (NSW)], to ‘impairment of a person’s … mental condition’. I incline to the view that the emotional reaction, often called ‘injured feelings’, arising from the apprehension of physical violence and the accompanying sense of outrage or indignation is not an ‘impairment of a mental condition’.[85]

[85](2005) 65 NSWLR 168, 172 [21]–[22] (citations omitted).

1. Immediately after that passage, his Honour observed:

However, the state of the law on mental harm at the time the Act was passed would need to be carefully reviewed before reaching a concluded view.  The submissions did not undertake that task.  This issue need not be determined.

1. Section 21 of the Civil Liability Act 2002 (NSW), which was under consideration in Ibbett, applied ‘[i]n an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence’.  All members of the Court agreed that the section did not apply on the facts, as the action did not involve a claim of negligence.[86]

   [86]Ibid 171–2 [18]–[19] (Spigelman CJ), 175 [127]–[128] (Ipp JA), 180 [200]–[201] (Basten JA).

1. Section 11 defined ‘injury’ as ‘personal injury’ including ‘impairment of a person’s physical or mental condition’. Basten JA expressed hesitation about the meaning of ‘impairment’ and considered that the use of the term ‘personal injury’ did not impose any additional restriction upon the scope of s 21:

There may be a doubt as to whether limiting the concept of ‘impairment of mental condition’ to an impairment involving a recognised psychiatric illness accords with the general understanding of the term ‘impairment’ or with its use in the statute.  In ordinary usage, the term ‘impairment’ connotes a diminution of an antecedent state of affairs or a departure from an objective standard.  In discrimination law the term is used to describe a departure from a standard;  in tort law, it is used to describe departure from a state of affairs caused by the act of the tortfeasor.  The ordinary meaning of the term may not reflect a distinction drawn by the law between emotional distress and a psychiatric condition.  (As to the nature of the distinction see generally Tame v New South Wales (2002) 211 CLR 317 at 414 [285]–[296], per Hayne J.)[87]

…

[A]ccepting that the focus of s 21 is on damages in an action for negligence, the term ‘personal injury damages’, given the somewhat circular definitions in s 11, is a phrase probably intended to include any damages which may properly be awarded in proceedings in negligence. … Thus, although I agree that it is not necessary to answer the third question posited by the Chief Justice … that is because the question cannot readily be separated from the second, but does not, in my view, suggest any additional restriction upon the scope of s 21.[88]

[87]Ibid 182 [212].

[88]Ibid 183–4 [216].

1. Ipp JA, who dissented in the result on other grounds, remarked:

In my view, anxiety and distress would be an ‘impairment’ of a person’s mental condition in accordance with the ordinary meaning of ‘impairment’, as the word is used in s 11.

In my opinion, irrespective of whether the ordinary meaning of the word is attributed to ‘injury’, or whether it is given the meaning defined in s 11, the word is wide enough to encompass anxiety and stress.[89]

[89]Ibid 175 [124]–[125].

1. It is clear that Spigelman CJ’s remarks were expressed as a tentative view in obiter and that the point had not been the subject of full argument before the Court.[90] It is also clear that his Honour’s view was not shared by Ipp JA and that, to the extent Basten JA agreed, his Honour did so with some reservation. Given the requirement in s 21 that the personal injury be caused by a negligent act or omission, the narrower interpretation of ‘personal injury’ favoured by Spigelman CJ would not, in any event, have restricted the operation of that section any more than the negligence requirement already did, as Basten JA observed. However, the present case is different, since s 27B(1) of the Limitations Act applies to more than negligence, as explained earlier in these reasons.

   [90]The decision was subsequently appealed to the High Court, but this issue was not the subject of further discussion: New South Wales v Ibbett (2006) 229 CLR 638.

1. Moreover, with respect, Spigelman CJ’s remarks about the usual meaning of ‘personal injury’ in legal practice reflect the significance of the tort of negligence in legal discourse: usually, ‘personal injury’ is discussed in a negligence context.  His Honour’s remarks do not detract from Ipp and Basten JJA’s observations about the ordinary meaning of ‘impairment’, which are apposite in the present case.  Mrs Slaveska’s Amended Statement of Claim unambiguously asserts that her mental condition suffered as a result of many of the alleged incidents;  whether she has alleged any recognised psychiatric illnesses or not, it would be wrong to conclude that she has not alleged any impairment to her mental condition, which is all that the definition of ‘personal injuries’ requires.

1. We observe also that at various points Mrs Slaveska’s Amended Statement of Claim expressly alleges ‘personal injury’,[91] including a ‘psychological condition’,[92] and that it is far from clear that post-traumatic stress disorder is the only recognised psychiatric illness of which she complains. While we do not place any great emphasis on the precise terms of Mrs Slaveska’s pleading, drafted as it was by a self-represented litigant, it may well be that Mrs Slaveska’s pleading alleges ‘personal injury’ even on the narrower definition for which she contended.

   [91]Amended Statement of Claim dated 15 May 2012, [40], [59], [87], [90], [101].

   [92]Ibid [62].

1. In our view, Mrs Slaveska has alleged injuries in relation to each incident that amount to ‘personal injury’ for the purposes of s 27B(1) of the Limitations Act.

1. We are fortified in this conclusion by the decision of the New South Wales Court of Appeal in New South Wales v Radford,[93] where Sackville AJA (with whom Beazley and Macfarlan JJA agreed) held:

In the 5th ASC [Amended Statement of Claim], the respondent alleges that he suffered emotional upset, anxiety, distress and humiliation by virtue of the alleged assault (and the unlawful imprisonment).  His claim, in my opinion, is for damages for impairment of his mental condition.  Each of the consequences he alleges flowed from the assault can readily be described as an impairment of the respondent’s mental condition.  His claim is therefore for damages for personal injury.[94]

[93](2010) 79 NSWLR 327 (‘Radford’).

[94]Ibid 350 [116].

1. Counsel for Mrs Slaveska contended that Radford was overruled in Williamson, but that proposition must be rejected.  Williamson clearly envisaged the possibility that damages could be awarded for personal injury consequent upon a false imprisonment, even if no such damages were awarded in that case.[95]  The High Court did not consider the question of when mental harm will amount to an ‘impairment’ for the purposes of the ‘personal injury’ definition.  In our view, the Radford reasoning is compatible with the result in Williamson and should be adopted.[96]

   [95]See discussion at paragraphs [78]–[79] above.

   [96]In accordance with Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151–2 [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), intermediate appellate courts ought to follow the decisions of intermediate appellate courts in other jurisdictions on the interpretation of uniform national legislation unless convinced that the interpretation adopted is ‘plainly wrong’.

1. Mrs Slaveska’s submission regarding the scope of the term ‘personal injury’ in s 27B(1) must be rejected.

Partial survival of claims

1. Mrs Slaveska submitted that even if this Court were to hold that some of her actions included claims for damages that relate to personal injury consequent upon the torts she alleged, the associate judge should not have dismissed her claims to the extent that they did not rely on any such personal injury. She submitted that the Limitations Act does not extinguish causes of action and that the respondents could raise a limitations point as a defence. She maintained that she remained entitled to nominal, aggravated and exemplary damages in vindication of her rights. She relied on the High Court’s decision in New South Wales v Ibbett[97] as an example of a case where significant damages were awarded for infringement of the right in an action for trespass.

   [97](2006) 229 CLR 638.

[205]Reasons [52].

1. As to the first necessary matter, the associate judge found:

The sufficient point is that no [application to be joined as a plaintiff] was made by [Mrs Slaveska], and it could have been, and she did not commence her own proceedings until after the determination at trial of her husband’s proceedings, although she could have in fact.[206]

[206]Reasons [53].

1. Her Honour therefore concluded that the necessary preconditions for the estoppel, identified by Kenny JA in Gibbs v Kinna, were made out.[207]  We agree with the associate judge’s reasoning in this regard.

Anshun estoppel where litigants differ between proceedings

[207]Reasons [54].

1. On this appeal, Mrs Slaveska maintained that she was not ‘in privity’ with her husband such that an Anshun estoppel based on his proceeding could apply to her.

1. A finding that an Anshun estoppel operates to prevent a person from bringing a proceeding or particular claims is a serious step: it removes a litigant’s right to have the merits of a claim adjudicated.  For this reason, the authorities establish that an Anshun estoppel finding should only be reached in the clearest of cases and after ‘a scrupulous examination of all the circumstances’.[208]

   [208]Solak v Registrar of Titles (2011) 33 VR 40, 55 [73] (Warren CJ) (‘Solak’), citing Primus Telecommunications Pty Ltd v Kooee Communications Pty Ltd [2008] FCA 1027, [5] (Marshall J). See also Gibbs v Kinna [1999] 2 VR 19, 29 [33] (Kenny JA, Ormiston and Phillips JJA agreeing).

1. In Solak, Warren CJ gave some consideration to whether special principles apply in cases where an Anshun estoppel is asserted by a party who was not a party to the earlier litigation.  Her Honour concluded that it was not necessary in that case to decide whether special principles applied, but that the test in such cases is at least as strict as where the parties are the same.[209]

   [209]Solak (2011) 33 VR 40, 55 [71].

1. We agree with the associate judge that where an Anshun estoppel is asserted against a party who was not a party to the earlier proceeding, particularly a plaintiff, even greater caution must be exercised by the Court.  This is because a new plaintiff would not ordinarily have been in control of the earlier proceeding, as the associate judge observed.[210]

   [210]Reasons [49].

1. In Re HIH Insurance Ltd (in liq); De Bortoli Wines (Superannuation) Pty Ltd v McGrath,[211] Brereton J reviewed the relevant case law[212] and concluded:

The above authorities establish that a person who was not party to earlier proceedings may nonetheless be precluded from maintaining later proceedings in respect of substantially the same subject matter, even though not in privity in the strict sense with the unsuccessful party in the earlier proceedings, if the person is sufficiently identified with a party to the earlier proceedings, and it was unreasonable to stand by and allow the earlier proceedings to be determined without intervening.  In my view, in Australia these cases are best explained as a sub-species of Anshun estoppel … Short of privity in the strict sense, there will be sufficient identification where there is control of one by the other … In addition, the requisite relationship will be taken to exist where there has been what Lord Hobhouse called an “order for the marshalling of litigation” … However, the existence of the requisite identification is not of itself enough;  as with the more familiar form of Anshun estoppel, a non-party will be precluded from later litigating the issue only where it was unreasonable to stand by without intervening in the earlier proceedings.[213]

[211][2014] NSWSC 774 (‘McGrath’).

[212]Ibid [25]–[59].

[213]Ibid [59], quoting Lord Hobhouse in Arthur JS Hall & Co v Simons [2002] 1 AC 615, 743.

1. This test picks up Sir Robert Megarry VC’s description of privity of interest in Gleeson v J Wippell & Co Ltd:[214]

I do not say that one must be the alter ego of the other;  but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party.  It is in that sense that I would regard the phrase “privity of interest”.

[214][1977] 1 WLR 510, 515.

1. Having regard to the authorities to which Brereton J referred in McGrath, we consider an Anshun estoppel can be relied upon in appropriate circumstances by a defendant seeking summary dismissal of a claim brought by a plaintiff who was not a party to relevant earlier proceedings.

1. In doing so, we observe that while the authorities hold that plaintiffs should be permitted some latitude in deciding when and how to bring their claims,[215] that latitude is not without limits.  As the High Court said in Dow Jones & Co Inc v Gutnick:

Clearly, the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings.  The principles of res judicata, issue estoppel, and what has come to be known as Anshun estoppel, all find their roots in that policy. … Effect can be given to that policy by the application of well-established principles preventing vexation by separate suits or, after judgment, by application of the equally well-established principles about preclusion, including principles of Anshun estoppel.[216]

[215]See, eg, Anshun (1981) 147 CLR 589, 603 (Gibbs CJ, Mason and Aickin JJ); Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, [30], [200] (McColl JA, with whom Giles and Campbell JJA agreed).

[216](2002) 210 CLR 575, 604 [36] (Gleeson CJ, McHugh, Gummow and Hayne JJ) (citations omitted).

1. In view of our ultimate conclusion, it is not necessary in this case to determine whether there is ‘sufficient identification’ between Mr Slaveski and Mrs Slaveska, in the sense articulated in the authorities, to permit an Anshun estoppel to arise in respect of Mrs Slaveska’s claims notwithstanding that she was not herself a party to her husband’s proceeding.  It suffices to observe that the answer is far from straightforward, given Mrs Slaveska’s role first as her husband’s McKenzie friend, and subsequently as his litigation guardian in his proceeding.  On the one hand, those roles gave Mrs Slaveska significant involvement in her husband’s proceeding culminating in effective control of his case;  on the other hand, they required her to act in his interests, and in that way, her ability to use what control she had was circumscribed.  For present purposes, we will assume that Mrs Slaveska’s direct involvement in her husband’s proceeding would have been sufficient to permit an Anshun estoppel to arise if this Court was persuaded that she acted unreasonably in not seeking to raise her own claims in her husband’s proceeding.  It remains to consider whether the requisite unreasonableness would have been established.

Risk of inconsistent judgments

1. In Gibbs v Kinna, Kenny JA held that one factor indicative of unreasonableness in failing to assert a claim in an earlier proceeding is a risk of inconsistent judgments.  Her Honour stated:

if any judgment or order which might be made on the cause of action in the subsequent proceeding would conflict with a judgment or order in the earlier proceeding, then it will ordinarily be unreasonable to refrain from raising the cause of action in the first proceeding.[217]

[217][1999] 2 VR 19, 27 [25] (Ormiston and Phillips JJA agreeing).

1. Her Honour also referred to the statement of the majority of the High Court in Anshun that:

It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment …

…

By “conflicting” judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action.  It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.[218]

[218](1981) 147 CLR 589, 603–4 (Gibbs CJ, Mason and Aickin JJ).

1. It is relevant to observe that in this context, ‘judgment’ refers to the Court’s operative determination of each individual cause of action, rather than to the Court’s reasons for judgment regarding the totality of the plaintiff’s claims.[219]

   [219]See Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45, 64 (Barwick CJ and Kitto J); R v Ireland (1970) 126 CLR 321, 330 (Barwick CJ).

1. As to whether there was a risk of inconsistent judgments, the associate judge held:

If there is no estoppel or other basis that prevents the same facts being ventilated again in the plaintiff’s proceedings, then there is the risk that after hearing the evidence relating to the plaintiff’s claims (which one would expect would probably be the same as that in her husband’s case, but may not be) the judge presiding over her trial would reach different factual conclusions to that reached by Kyrou J [in Mr Slaveski’s proceeding].  Whether or not this would amount to an inconsistent judgment (the parties not being identical) it could bring the administration of justice into disrepute.  Avoiding that consequence, and preserving the subsequent re-consideration of factual findings for appeal only, is one of the principal purposes of the various forms of procedural estoppel.

I do not, however, consider that the defendants have shown that this is a risk of inconsistent judgments as such.  The necessary fine analysis to reach this conclusion is shown in all the Court of Appeal authorities to which I have referred.  I conclude that there is a risk of inconsistent findings on the facts and the law, and that this is a factor tending towards Anshun estoppel.  I do not consider, however, that it is conclusive as to its application here.[220]

[220]Reasons [62]–[63].

1. As we have observed earlier in these reasons,[221] Kyrou J’s rejection of many of the factual allegations made by Mr Slaveski (through Mrs Slaveska) regarding Incidents 5 to 10 gives rise to a heightened risk of inconsistent factual findings in Mrs Slaveska’s case;  if a different judge was prima facie satisfied that the tortious conduct did occur, such findings would be entirely at odds with the findings of Kyrou J.

   [221]See paragraph [162].

1. Nevertheless, while that analysis bears upon whether Mrs Slaveska’s claims constitute an abuse of process[222] and whether issue estoppels would have arisen in Mrs Slaveska’s proceeding,[223] a risk of inconsistent judgments requires something more.  The respondents’ written submissions asserted generally that Mrs Slaveska’s claims ‘mirrored’ claims of her husband, but at the hearing of the appeal, counsel for the respondents provided a table identifying more specifically what were said to be the ‘essential overlaps’ between Mrs Slaveska’s claims and the determinations made in her husband’s proceeding.

   [222]See the discussion from paragraph [161] of these reasons.

   [223]See Blair v Curran (1939) 62 CLR 464, 531–2 (Dixon J).

1. Having reviewed the respondents’ table, we are not satisfied that the respondents have shown there to be a risk of inconsistent judgments, as opposed to a risk of inconsistent factual findings, if Mrs Slaveska’s claims are brought to trial.  There is some force in Mrs Slaveska’s submission that her causes of action would result in judgments regarding her rights and the duties owed to her by the respondents, whereas the judgments on the equivalent causes of action in her husband’s proceeding concerned her husband’s rights and the duties owed to him.  Strictly speaking, Mrs Slaveska’s claims were not tried or determined in Mr Slaveski’s proceeding.  Mrs Slaveska’s damages would be hers alone rather than damages belonging to or shared with Mr Slaveski.

1. Although the fact that no risk of inconsistent judgments has been demonstrated bears upon whether an Anshun estoppel ultimately arises, it does not end the analysis.  It remains to consider the other circumstances that the parties contended bore upon the question whether it was unreasonable of Mrs Slaveska not to bring her claims in her husband’s proceeding.

Other factors and conclusion as to unreasonableness

1. The associate judge properly took account of the fact that Mrs Slaveska would likely have been allowed to have her claims determined together with her husband’s claims if she had applied to be joined as a plaintiff or had commenced a separate proceeding and sought to have had it heard and determined with her husband’s proceeding.[224]  Mrs Slaveska’s claims in respect of Incidents 1 to 10 and 12 raise many questions of fact which were the subject of evidence in her husband’s proceeding.  Although the addition of Mrs Slaveska’s claims would likely have protracted that proceeding, logically it would have been more efficient to deal with all the claims together.  It is difficult to see a trial judge declining to hear the two sets of claims together.

   [224]Reasons [53].

1. Similarly, the associate judge properly took into account the fact that it ought to have been apparent to Mrs Slaveska by the commencement of her husband’s trial that to bring her own claims arising from the same facts would involve considerable duplication.[225]  A separate proceeding would necessarily be attended by additional cost, delay and inconvenience for all concerned and the diversion of significant Court resources from the determination of other disputes would have been self-evident.

   [225]Reasons [71].

1. The associate judge was also correct to consider that the respondents had no duty to warn Mrs Slaveska of her interest in bringing her claims to be determined in her husband’s proceeding, and that in any event they could scarcely be taken to have been given clear, unequivocal notice that Mrs Slaveska intended to bring claims in her own right.[226]  As the circumstances were not such as to give rise to any reasonable expectation of a warning from the respondents, little weight can be given to the absence of such a warning in assessing the unreasonableness of the course of action Mrs Slaveska ultimately pursued.

   [226]See Reasons [82]–[87].

1. Further, the potential conflict of interest asserted by Mrs Slaveska does little to advance her argument in circumstances where Mrs Slaveska’s interests were closely aligned with her husband’s.  She could not have held a reasonable belief that a conflict of interest was likely to arise, beyond a fear that bringing her own claims might detract from her focus on her husband’s case.

1. However, if it became necessary to determine the Anshun estoppel point, we would have considered that despite those considerations, on balance, the respondents have not established that at the time of the commencement of the trial in Mr Slaveski’s proceeding it was unreasonable of Mrs Slaveska not to have brought her own proceeding.

1. In reaching this conclusion, we consider it particularly significant that Mrs Slaveska appears to have been substantially focussed on assisting her husband to run his case.  He did not have legal representation and Mrs Slaveska assumed very substantial and onerous responsibilities in assisting him to pursue his claims.  Even before the trial began, Mr Slaveski’s proceeding was extraordinary in the time it occupied,[227] involving as it did a large number of incidents, defendants and witnesses and a mentally ill plaintiff.[228]

   [227]Mr Slaveski’s writ was filed on 5 September 2006 and the trial in his proceeding did not commence until 3 August 2009.

   [228]Slaveski v Victoria [2010] VSC 441, [11] (Kyrou J). It was not in dispute before Kyrou J that Mr Slaveski suffers from a panic disorder, although there was argument about its severity and causes, and also about whether Mr Slaveski suffered from any other mental illnesses. See also Slaveski v Victoria (2009) 25 VR 160, 177–178 [7]–[9] (Kyrou J).

1. As the associate judge acknowledged,[229] it is also relevant, though by no means decisive,[230] that Mrs Slaveska was not legally represented at the time her husband’s trial commenced and therefore did not have access to advice about whether she should seek to bring her claims as part of his proceeding.  Mrs Slaveska did not put on any affidavit evidence to explain how it was that she did not seek legal assistance regarding her position while Mr Slaveski was planning to bring his proceeding or upon him issuing his writ on 5 September 2006.

   [229]Reasons [81].

   [230]Sahin v National Australia Bank Ltd [2012] VSCA 317, [98] (Ferguson AJA, with whom Warren CJ and Neave JA agreed).

1. We reject the respondents’ submission that this conclusion demonstrates a ‘narrow’ approach to the unreasonableness question.  On the contrary, it is a conclusion that takes fair account of the circumstances in which Mrs Slaveska did not raise her claims, as the authorities require.[231]  Without doubt, Mrs Slaveska’s claims in respect of Incidents 1 to 10 and 12 were relevant to Mr Slaveski’s proceeding.  But that is not to say that, in the circumstances we have described, they were so relevant that it was unreasonable at the commencement of Mr Slaveski’s trial for Mrs Slaveska not to raise her claims.

   [231]See footnote 208 above.

1. Moreover, while it may be accepted that ‘considerations of convenience and justice’[232] are at the foundation of Anshun estoppel, that does not mean that the Court may consider the unreasonableness question in an elastic way or merely on the basis of a value judgment aimed at avoiding the mischief of re-litigation.  Rather, as described earlier in these reasons, the authorities require the Court to exercise great caution before finding that an Anshun estoppel operates.  The respondents faced a heavy burden in contending for an Anshun estoppel.  We are not satisfied that one would have operated in the relevant circumstances.

   [232]Anshun (1981) 147 CLR 589, 602–3 [34] (Gibbs CJ, Mason and Aickin JJ).

1. It follows that to the extent that Mrs Slaveska’s claims in respect of Incidents 5 to 10 were brought within time, we would not summarily dismiss those claims on the basis of Anshun estoppel.

1. As we observed earlier,[233] claims may amount to an abuse of process notwithstanding that no Anshun estoppel arises.  In that regard, it must be recalled that in the respondents’ submission, the focus of the Anshun estoppel analysis must be what it was reasonable to expect from Mrs Slaveska at the outset of the trial in her husband’s proceeding.[234]  In contrast, in the exercise of the Court’s inherent jurisdiction to prevent the abuse of its own processes, it is necessary to examine matters in a forward-looking way in light of all relevant circumstances,[235] including developments since the outset of Mr Slaveski’s trial.

   [233]See paragraph 155 of these reasons.

   [234]See paragraph 186 of these reasons; Reasons [70].

   [235]See Batistatos (2006) 226 CLR 256, 281 [69] (Gleeson CJ, Gummow, Hayne and Crennan JJ). The Court identified the relevant matter as ‘the burdensome effect upon the defendants that has arisen by the lapse of time’.

1. In reaching our conclusion that the Incidents 5 to 10 claims are an abuse of process, we have taken into account the matters which we consider would weigh against a finding that an Anshun estoppel would arise in this case, namely the responsibilities that Mrs Slaveska undertook in presenting her husband’s case, her lack of legal representation, and the fact that her claims in respect of the relevant incidents were, strictly speaking, separate from those of her husband.  We do not consider that in this case those factors are sufficient to outweigh the circumstances that have led us to conclude that the continuation of the Incidents 5 to 10 claims now would be unfairly oppressive to the relevant defendants and would bring the administration of justice into disrepute.

Costs appeal

1. Mrs Slaveska seeks leave to appeal against order 7 of the associate judge, being an order that she pay 50 per cent of the costs of both summonses heard by the associate judge.  No submissions were offered in support of this application.

1. We have found that Grounds 2 and 3 of the appeal should be dismissed, and that Mrs Slaveska’s substantive arguments on Ground 1 should be rejected.  We have also concluded that the bulk of her remnant trespass claims should be dismissed as an abuse of process.  Although we have adopted different conclusions to the associate judge in some respects, Mrs Slaveska has enjoyed success only in that she may maintain her Incident 13 claims to the extent that they do not seek damages related to personal injury.[236]  The minor variation we would propose to the associate judge’s orders does not create sufficient doubt about the associate judge’s costs order to warrant the grant of leave.[237]  We therefore consider that leave to appeal on the question of costs must be refused.

   [236]Mrs Slaveska’s arguments about the scope of Part IIA of the Limitations Act and the partial survival of her claims were not made before the associate judge, although the respondents did not press an objection to those arguments being considered in this appeal.

   [237]See Peet Ltd v Richmond [2010] VSCA 71, [4] (Nettle JA); Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375, [138]–[143] (Ashley, Priest and Santamaria JJA).

Disposition

1. In view of the complexity of this appeal, we have set out in Annexure A to these reasons the disposition we propose for each of Mrs Slaveska’s claims.  In summary:

(bb)            we would reject Grounds 2 and 3 of the appeal, with the effect that Mrs Slaveska’s claims arising from Incidents 1 to 4, 11 and 14 stand dismissed;

(cc)             we would allow Ground 1 only insofar as we have concluded that Mrs Slaveska’s claims arising from Incidents 5 to 10 and 13 were brought within time to the extent that they seek damages not related to personal injury, but we would otherwise reject Ground 1, with the effect that the Incident 12 claims stand dismissed; and

(dd)           we would dismiss the surviving claims that arise from Incidents 5 to 10 on the basis that they are an abuse of the process of the Court.

1. In the result, Mrs Slaveska’s Incident 13 claims survive, but only to the extent that they do not claim damages related to personal injury.  We would grant her leave to re-plead those claims to reflect this outcome.  The associate judge’s disposition of Mrs Slaveska’s claims arising from Incidents 15 to 17 were not in issue on this appeal;  they also remain on foot.

SCHEDULE OF PARTIES

SNEZANA ANGELESKA (known as SLAVESKA)  Appellant

- and -

STATE OF VICTORIA  First Respondent

SHAUN BINGHAM  Second Respondent

MARK SMITHWICK  Third Respondent

ANDREW STEPHEN  Fourth Respondent

GARRY BARTON  Fifth Respondent

CRAIG RHODES  Sixth Respondent

CATHERINE SADLER  Seventh Respondent

PETER JONES  Eighth Respondent

TIMOTHY PECK  Ninth Respondent

KEVIN NOLAN  Tenth Respondent

LEIGH COLE  Eleventh Respondent

PAUL KIRKRIGHT  Twelfth Respondent

MATTHEW KNOWLES  Thirteenth Respondent

MICHAEL BAADE  Fourteenth Respondent

PHILIP WENDT  Fifteenth Respondent

PETER ANDERSON  Sixteenth Respondent

ADRIAN TENNYSON  Seventeenth Respondent

GLENN PARKER  Eighteenth Respondent

PHIL LOWERSON  Nineteenth Respondent

THOMAS JOHN BATEMAN  Twentieth Respondent

DENIS BUSIC  Twenty-first Respondent

LUKE CORNELIUS  Twenty-second Respondent

ANDREW GUTSKE  Twenty-third Respondent

GREG MASON  Twenty-fourth Respondent

ANNEXURE “A”
TO JUDGMENT DELIVERED 10 JUNE 2015

IN THE SUPREME COURT OF VICTORIA       

COURT OF APPEAL

S APCI 2013 0187
SNEZANA ANGELESKA (known as SLAVESKA)	Appellant
v
STATE OF VICTORIA and others (according to the attached Schedule)	Respondents

TABLE OF INCIDENTS
Appellant’s proceeding filed 24 November 2011

INCIDENT	DATE	AMENDED STATEMENT OF CLAIM	IMPLICATED DEFENDANTS	DISPOSITION IN THESE REASONS
				APPEAL GROUNDS	NOTICE OF CONTENTION
Incident 1 [13]	8 September 2000	[27]–[40]	2nd, 3rd, 4th, 5th, 6th	(3) No extension of time: [138] Claims stand dismissed: [229(a)]	Unnecessary to consider
Incident 2 [14]	18 December 2003	[41]–[44]	7th	(3) No extension of time: [138] Claims stand dismissed: [229(a)]	Unnecessary to consider
Incident 3 [15]	14 April 2004	[45]–[46]	8th, 9th	(3) No extension of time: [138] Claims stand dismissed: [229(a)]	Unnecessary to consider
Incident 4 [16]	22 June 2005	[47]–[52]	10th, 11th	(3) No extension of time: [138] Claims stand dismissed: [229(a)]	Unnecessary to consider
Incident 5 [17]	13 December 2005	[53]–[62]	7th, 11th, 12th, 13th, 14th, 15th, 16th	(1) Claims out of time to the extent for damages related to personal injury: [115] (2) Causes of action discoverable more than three years before the writ was filed: [126] (3) No extension of time: [138]	Residual claims stand dismissed as abuse of process: [180] No Anshun estoppel: [224]
Incident 6 [18]	13 January 2006	[63]–[64]	17th	(1) Claims out of time to the extent for damages related to personal injury: [115] (3) No extension of time: [138]	Residual claims stand dismissed as abuse of process: [180] No Anshun estoppel: [224]
Incident 7 [19]	12 July 2006	[65]–[66]	18th	(1) Claims out of time to the extent for damages related to personal injury: [115] (3) No extension of time: [138]	Residual claims stand dismissed as abuse of process: [180] No Anshun estoppel: [224]
Incident 8 [20]	20 July 2006	[67]–[68]	18th	(1) Claims out of time to the extent for damages related to personal injury: [115] (3) No extension of time: [138]	Residual claims stand dismissed as abuse of process: [180] No Anshun estoppel: [224]
Incident 9 [21]	14 August 2006	[69]–[71]	18th	(1) Claims out of time to the extent for damages related to personal injury: [115] (3) No extension of time: [138]	Residual claims stand dismissed as abuse of process: [180] No Anshun estoppel: [224]
Incident 10 [22]	7 May 2007	[72]–[74]	9th	(1) Claims out of time to the extent for damages related to personal injury: [115] (3) No extension of time: [138]	Residual claims stand dismissed as abuse of process: [180] No Anshun estoppel: [224]
Incident 11 (Undated Incident 1) [23]	Mid 2005 to 3 August 2009	[75]	1st, 22nd, 23rd, 24th	(1) Not pressed: footnote 43. (3) No extension of time: [138] Claims stand dismissed: [229(a)]	---
Incident 12 (Undated Incident 2) [24]	Undated	[76]–[78]	1st, 19th	(1) Claims out of time: [117] (3) No extension of time: [138] Claims stand dismissed: [117]	Unnecessary to consider
Incident 13 [25]	5 September 2007	[79]–[84]	20th	(1) Claims out of time to the extent for damages related to personal injury: [115] (3) No extension of time: [138] Struck out with leave to re-plead: [115]–[116], [230]	---
Incident 14 [26]	23 September 2008	[85]–[90]	1st, 20th, 24th	(1) Not pressed: footnote 43. (3) No extension of time: [138] Claims stand dismissed: [229(a)]	---
Incident 15 (Undated Incident 3) [27]	Undated	[91]	1st, 22nd, 23rd, 24th	Not in issue on appeal – remains struck out with leave to re-plead	---
Incident 16 [28]	2 June 2010	[92]–[98]	1st, 21st	Not in issue on appeal – survives	---
Incident 17 [29]	1 July 2010	[99]–[108]	1st, 21st	Not in issue on appeal – remains struck out with leave to re-plead	---