Bazos & Anor v Doman

[2002] HCATrans 289

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S257 of 2001

B e t w e e n -

PETER BAZOS and SUSAN BAZOS

Applicants

and

FREDERICK SPENCER HOWE DOMAN, ALASTAIR DOMAN, T.A. DOMAN & CO PTY LIMITED, VIMREACH PTY LIMITED and MARGARET CAMPBELL t/as YADLAMALKA PROPERTIES

Respondents

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 AUGUST 2002, AT 11.40 AM

Copyright in the High Court of Australia

MR M.R. GRACIE:   If your Honours please, I appear for the applicants.  (instructed by Bowen & Gerathy)

MR A.S. MARTIN, SC:   If the Court please, I appear for the respondents.  (instructed by Lane & Lane)

GLEESON CJ:   Yes, Mr Gracie.

MR GRACIE:   Your Honours, I am instructed that there is a formal matter to deal with at the outset and that is to move on the notice of motion filed on 7 August 2002 to make some amendments to the names and details of the respondents.

GLEESON CJ:   Do you oppose that application?

MR MARTIN:   We consent to it, your Honour.

GLEESON CJ:   Yes, you have that leave.

MR GRACIE:   Thank you, your Honour.  Your Honours, the point of principle which arises as a result of the judgment of the Court of Appeal is in short this.  Is one party permitted to choose to circumvent jurisdictional limitations in one court by splitting its causes of action – anything up to 26 separate causes of action, as contended by the respondent – when it, at the same time has other proceedings on foot in another jurisdiction, but which are not served when the cause of action in both jurisdictions is the same, namely, a breach of the lease, and at the time that the causes of action are litigated all damages which are the subject of both proceedings have been crystallised in a liquidated sum?

The other point of principle which I respectfully submit arises out of the varying decisions in the courts below is whether there is a need for the first set of proceedings to proceed to judgment to give rise to the Anshun principle, or to give rise to an application of an Anshun estoppel.  The respondents contend that that is the missing dimension in the applicants’ submissions to this honourable Court.  With respect, the applicants contend that the proper test is whether or not, firstly, the proceedings could and should have all been brought in one set of proceedings.

In my respectful submission, there are two matters to canvass on that point.  The first is, could they have been brought in one set of proceedings?  Yes, they could have all been commenced in the District Court.  The second is, could they have been brought in the Local Court – and this is the very point which the respondents’ own case has to yet grapple with.  On the respondents’ case, it could have commenced 26 separate causes of action in the Local Court, and so when the respondent submits, as it has, that it could not have commenced the District Court proceedings in the Local Court, that flies in the face of its own contention that there are 26 separate causes of action over a three‑year period for breach of the 26 monthly instalments of rent.  That is where the fallacy lies, with respect, in my learned friend’s submissions, because this is a claim for damages.  This is a claim for damages after the period of the lease has expired.  It is a claim for damages when all of the instalments, or non‑payment of monthly instalments were known, and so that the amount that is the subject of the District Court proceedings was actually identified in the Local Court proceedings as being outstanding.

Now, in my respectful submission, on the authorities the critical test was, firstly, could and should the proceedings all have been commenced in one set of proceedings?  In my respectful submission the answer is yes.  That is the subject of a finding by his Honour, Acting Judge Bowden, in the District Court.  He found, as a matter of fact, that the respondents could have widened their cause of action to include everything, and with that finding of fact we would respectfully submit that the Court of Appeal only had one matter to determine in the application of the Anshun principle and that is, was it reasonable for the respondents to not bring all proceedings in one set of litigation?

There is absolutely no evidence and there has been no suggestion ever as to why the respondents chose to litigate in the Local Court and at the same time commence proceedings in the District Court but not file them.  There is no suggestion that it was done for any particular purpose.  At the most, we have a suggestion in the special leave application before the Court of Appeal that it was done to see what might happen, and that is the highest that the respondents’ case can be put.

In my respectful submission, the issue, therefore, is whether it was reasonable or not for the respondents to conduct themselves in the way they did, and there is no evidence on which the court could make any inference that it was reasonable.  So that is the second step.  The third step is whether in the exercise of the court’s discretion the trial judge, his Honour Acting Judge Bowden, could form a view – and the same applies to the Court of Appeal – whether it was or was not reasonable for the respondents to not commence all causes of action for which it contended in one set of proceedings.  There was nothing on that.

The Court of Appeal found it was not necessary to consider that issue.  In my respectful submission, that is the very requirement which the Court of Appeal had to consider in applying the Anshun principle.  May it please the Court.

GLEESON CJ:   We do not need to hear you, Mr Martin.

The Court is of the view that there is insufficient reason to doubt the correctness of the decision of the Court of Appeal in this matter to warrant a grant of special leave and the application is refused with costs.

AT 11.47 AM THE MATTER WAS CONCLUDED