FEDERAL COURT OF AUSTRALIA
Bega v Lauvan Pty Ltd [2021] FCA 1392
File number: NSD 280 of 2021 Judgment of: STEWART J Date of judgment: 11 November 2021 Catchwords: PRACTICE AND PROCEDURE – application for leave to amend statement of claim – counter-application by respondents for stay of proceedings or summary dismissal – where applicant and two of three respondents were previously in litigation in New South Wales Supreme Court (NSWSC) – where NSWSC determined issues in respect of the same transaction – where applicant seeks to raise a misleading and deceptive conduct claim in circumstances where a related party had raised such issues in the NSWSC proceeding to which she was also a party – whether applicant ought to have raised the claim in the NSWSC such as to give rise to an Anshun estoppel – where one respondent not party to NSWSC proceedings – whether proceeding is an abuse of process on account of that party not having been joined to the NSWSC proceeding and the claim asserted against him there
CONSUMER LAW – when cause of action for damages for misleading and deceptive conduct accrues under s 236(2) of the Australian Consumer Law – when loss first occurred – whether proposed cause of action time-barred – whether proceeding should be summarily dismissed on account of it being time-barred
Legislation: Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) ss 18, 236
Federal Court Rules 2011 (Cth) rr 16.51, 16.54
Cases cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Bega v Lauvan Pty Ltd [2019] NSWCA 36
Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26; 19 VR 358
Johnson v Gore Wood & Co [2002] 2 AC 1
Johnson v Registrar, Federal Court of Australia [2015] FCAFC 66
Lauvan Pty Ltd v Bega [2018] NSWSC 154; 330 FLR 1
Murphy v Abi-Saab (1995) 37 NSWLR 280
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589
Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 58 Date of last submissions: 3 November 2021 Date of hearing: 28 October 2021 Counsel for the Applicant: R Marshall SC and G Antipas Solicitor for the Applicant: Solari Law Counsel for the Respondents: G A Sirtes SC and A Avery-Williams Solicitor for the Respondents: Robinson & Robinson Lawyers ORDERS
NSD 280 of 2021 BETWEEN: HELEN BEGA
Applicant
AND: LAUVAN PTY LTD
First Respondent
MITTABELL PTY LTD
Second Respondent
SHADD DANIEL DANESI
Third Respondent
ORDER MADE BY:
STEWART J
DATE OF ORDER:
11 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The applicant’s amended interlocutory application filed on 30 July 2021 be…
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- Bega v Lauvan Pty Ltd [2021] FCA 1392
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- [2021] FCA 1392
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CaseChat Overview and Summary
The court had to determine whether Mrs Bega's proceeding amounted to an abuse of process, considering the Anshun estoppel, which prevents a party from relitigating issues that could have been raised in a previous proceeding where a related party had the opportunity to do so. Furthermore, the court had to assess whether the claim for misleading and deceptive conduct was time-barred, in light of the accrual of the cause of action under section 236(2) of the Australian Consumer Law.
The court found that Mrs Bega's proceeding constituted an abuse of process due to the unreasonableness of not raising the same issues in the previous proceeding, where the facts were available, and the matters were relevant and connected. The court also noted that the proceeding would be oppressive and unfair to the respondents and that there were public interest considerations against allowing the proceeding to continue. The court concluded that the proceeding should be permanently stayed. While the limitation point would have provided sufficient basis for a summary dismissal, the court found it unnecessary to address this issue given its decision to stay the proceeding permanently.
ORDERS:
1. The application for leave to amend the statement of claim be dismissed.
2. The proceeding be permanently stayed.
3. The applicant pay the respondents' costs of the proceeding, as taxed or agreed.
4. In the event that any party seeks a variation of Order 3, that party must file and serve submissions within the specified timeframe, and the question of variation will be decided on the papers unless an oral hearing is requested and granted.
Orders
Orders of the court
1. The applicant’s amended interlocutory application filed on 30 July 2021 be dismissed.
2. The proceeding be permanently stayed.
3. Subject to Order 4, the applicant pay the respondents’ costs of the proceeding, as taxed or agreed.
4. In the event that any party seeks a variation of Order 3:
(a) That party file and serve submissions of no more than five pages within seven days of these orders;
(b) Any party opposing the variation file and serve submissions of no more than five pages within seven days thereafter;
(c) The first party file and serve any reply submissions of no more than two pages within three days thereafter; and
(d) The question of the variation of Order 3 be decided on the papers, unless any party requests an oral hearing and the Court so orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In UBS AG v Tyne [2018] HCA 45; 265 CLR 77 at [1] per Kiefel CJ, Bell and Keane JJ, Gageler J agreeing, it was said that the varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute. Their Honours (at [7]) adopted the statement of Lord Bingham of Cornwall in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31 that the consideration the court is required to make is:a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Consideration The claim that Mrs Bega proposes to assert against Lauvan and Mittabell is unquestionably a claim that she could have asserted against them by way of cross-claim in the Supreme Court proceeding, or she could have raised the same reliance on s 18 of the ACL as a defence in that proceeding. Indeed, Gleeson JA treated Mrs Bega as having asserted a s 18 claim in the first cross-claim which his Honour ultimately dismissed. There is no doubt that the necessary facts and information with regard to the Round Robin payment were available to Mrs Bega at least nearly a year before the hearing and those facts formed a key part of the litigation and of the findings and conclusions of Gleeson JA. Even if she is not taken to have asserted the same claim in the Supreme Court proceeding, she certainly could have done so. The matters which Mrs Bega now seeks to litigate are so relevant and connected to the subject matter of the Supreme Court proceeding that it is unreasonable for her not to have relied on them in that proceeding; reasonable diligence in the conduct of the proceeding would have resulted in them having been raised there. To allow Mrs Bega to claim against Lauvan and Mittabell on the basis of her proposed further amended statement of claim would be to allow the same issues to be litigated again in circumstances where they should reasonably have been litigated in the Supreme Court proceeding. By her proposed claim, Mrs Bega seeks in effect to re-litigate her liability to Lauvan and Mittabell under the Loan Facility with a view to unwinding the effect of the Supreme Court judgment against her. It would be oppressive and unfair to Lauvan and Mittabell to allow the present proceeding to continue against them. Moreover, there are considerations of public interest that count against allowing the proceeding to continue, namely the public interest in the proper and efficient use of public resources. See Aon at [27] and [30].