Bride v Anglo Australian Foods Pty Ltd - [2000] WASCA 124

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: BRIDE & ORS -v- ANGLO AUSTRALIAN FOODS PTY LTD & ORS [2000] WASCA 124

CORAM: PIDGEON J
PARKER J
McKECHNIE J

HEARD: 18 AUGUST 1999

DELIVERED : 10 MAY 2000

FILE NO/S: FUL 175 of 1996

BETWEEN: EDWARD JAMES BRIDE
WENDY MARGARET BRIDE AS TRUSTEES OF THE PINWERNYING FAMILY TRUST
First Appellants
EDWARD JAMES BRIDE
Second Appellant
AND
ANGLO AUSTRALIAN FOODS PTY LTD
First Respondent
FREEHILL HOLLINGDALE & PAGE (A FIRM)
MUIRWIL NOMINEES PTY LTD
Second Respondents
ELDERS PASTORAL LTD
Third Respondent
ALAN PORTER
LINDA BRIDGET PHILOMENA PORTER
Fourth Respondents
GEORGE ARTHUR FULFORD
PATRICIA FULFORD
Fifth Respondents

Catchwords:

Pleadings - Issues raised the subject of unsuccessful appeal - Abuse of process - No new principles

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

First Appellants            :     In person
Second Appellant          :     In person
First Respondent           :     Ms C H Thompson
Second Respondents     :     Mr P P McCann
Third Respondent         :     Mr C A D Ryder
Fourth Respondents      :     Mr W J Clements
Fifth Respondents         :     Mr W J Clements

Solicitors:

First Appellants            :     In person
Second Appellant          :     In person
First Respondent           :     Freehill Hollingdale & Page
Second Respondents     :     Phillips Fox
Third Respondent         :     Corrs Chambers Westgarth
Fourth Respondents      :     Williams Ellison
Fifth Respondents         :     Williams Ellison

Case(s) referred to in judgment(s):

Bride v Freehill Hollingdale & Page & Ors, unreported; FCt SCt of WA; Library No 950548; 16 October 1995
Bride v Milne Feeds & Anor, unreported; FCt SCt of WA; Library No 950622; 21 November 1995
Bride v Milne Feeds Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 970060; 21 February 1997
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Reichel v McGrath (1889) 14 App Cas 665
Walton v Gardiner (1992-1993) 177 CLR 378

Case(s) also cited:

Blair v Curran (1939) 62 CLR 464
Bride v Anglo Australian Foods, unreported; SCt of WA; Library No 980725; 11 December 1998
Bride v Peat Marwick [1989] WAR 383
Bride v Southern Rolled Oats, unreported; SCt of WA; Library No 950723; 20 December 1995
Bride v The Australian Bank Ltd [1999] WASC 110
Bride v The Australian Bank Ltd [1999] WASC 122
Bride v The Australian Bank Ltd [1999] WASCA 88
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Chamberlain v Deputy Commissioner of Taxation (ACT) (1988) 164 CLR 502
Chasfild Pty Ltd v Taranto (1991) 1 VR 225
Forsyth v Blundell (1973) 47 ALJR 448
Gibbs v Messer [1891] AC 248
Hall v Nominal Defendant (1966) 117 CLR 423
Hawkins v Clayton (1988) 164 CLR 539
Henderson v Henderson (1843) 3 Hare 100; [1843-1860] All ER 378
Hughes v Gales (1995) 14 WAR 434
Jackson v Goldsmith (1950) 81 CLR 446
Jared v Clements (1903) 1 Ch 428
Jenkins v Jones (1860-1861) 2 Giff 99
Latec Investments Ltd v Hotel Terrigal Pty Ltd (In Liq) (1965) 113 CLR 265
McCallum v McCallum (1901) 1 Ch 143
McCann v Parsons (1954) 93 CLR 418
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Robertson v Norris (1858-1859) 1 Giff 421
Robinson v Robinson [Practice Note] [1982] WLR 786
Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572
Ronex Properties Ltd v John Laing Construction Ltd [1983] 1 QB 398
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514

PIDGEON J: I have read in draft the reasons to be published by McKechnie J for dismissing the appeal. I agree with those reasons and for those reasons I would dismiss the appeal.
PARKER J: I have had the advantage of reading in draft the reasons for decision to be published by McKechnie J.
I respectfully agree with his Honour that the appeal should be dismissed.
A central issue is whether the appellants should have been given yet further leave to replead, it being accepted there were serious deficiencies with the form of pleading before the Acting Master. As the appellants are not legally represented, we took into account and heard submissions directed to a proposed further amended form of statement of claim which was put before us for the appellants. This was a convenient further method of assessing whether, by amendment, a statement of claim which raised a cause of action which should be tried could be pleaded. With respect to this proposed further amended form of statement of claim I would make the following observations.

First Respondent

The fundamental difficulty with the claim which the appellants would seek to raise against Anglo Australian Foods Pty Ltd, the first respondent, is the allegation that the respondent owns the land in question "by way of their subsidiary Milne Feeds Pty Ltd". What is sought is a declaration that the first respondent holds this land on trust for the appellants. It is said the trust arises by virtue of the first respondent's knowledge, at the time of purchase, of defects in the title of the vendors which arose because of a defective appointment of the receivers and managers who had sold the land to the vendors.
Before the learned Acting Master the first respondent moved for summary judgment and in support of the motion adduced evidence which clearly established that the land was acquired by Milne Feeds Pty Ltd pursuant to an agreement to which that company, not the first respondent, was a party. It was further established that Milne Feeds Pty Ltd, not the first respondent, was the registered proprietor. Nothing else was established, or was relied on by way of contention, to found any interest of the first respondent in the land save the pleading that Milne Feeds Pty Ltd is the subsidiary of the first respondent. Even if Milne Feeds Pty Ltd is a subsidiary as alleged, that would not create in the first respondent an

interest in the land. There is no basis raised, therefore, on which the first respondent holds the land in any capacity, let alone in trust for the appellants.

In my view that is enough to reveal that this claim could not succeed against the first respondent. That was the conclusion of the learned Acting Master.

Second Respondents

It is first said with respect to the second respondents, Freehill Hollingdale & Page and Muirwil Nominees Pty Ltd, that in various ways they owned or had a controlling interest in the first respondent, or acted for the first respondent, and thereby, it is alleged, through the first respondent they had a controlling interest in Milne Feeds Pty Ltd or acted for Milne Feeds Pty Ltd. It is claimed there should be a similar declaration of trust against the second respondents as was sought against the first respondent. For the reason already given with respect to the first respondent, however, this aspect of the proposed claim could not possibly be sustained.
The appellants also seek inter alia to claim damages against the second respondents essentially on the proposed basis that they had knowledge that the appointments of receivers and managers on 9 August 1984 was defective and that the second respondents conspired with The Australian Bank Limited and the receivers and managers to defraud the appellants. A number of matters are pleaded as means by which this fraudulent conspiracy was effected. It is also pleaded that the second respondents owed a duty of care, (impliedly it seems to the plaintiffs) not to use their position and knowledge for their own benefit or for the benefit of "other persons". It is alleged this duty was breached for the second respondents' own benefit.
Neither The Australian Bank Limited nor the receivers and managers are parties to these proceedings. The present second respondents are at best secondary parties to the claim that is sought to be raised.
While the wording of the proposed pleading has been varied, recast and amplified, it appears to me that the appellants have not introduced any material matter which is beyond the general scope of what they had raised unsuccessfully in a variety of forms in earlier actions. In particular I would refer to Bride v Freehill Hollingdale & Page & Ors, unreported; FCt SCt of WA; Library No 950548; 16 October 1995 which was originally a decision of Master Adams whose decision was affirmed by the Full Court on appeal (unreported; FCt SCt of WA; Pidgeon, Anderson, Owen JJ; Library No 950548; 16 October 1995). Special leave to appeal from this decision was refused by the High Court on 23 December 1996.
The appellants contend, however, that there is a new consideration. It is said that there is "fresh" evidence that the original appointment of the receivers and managers on 9 August 1984 was not valid and that their appointments were not validly made until 22 August 1984 which was after they had acted to take possession of the appellants' properties and business. This new evidence is said to have been discovered late in 1994, after the decision of Master Adams, but before the argument before the Full Court.
The claim considered by Master Adams had, however, expressly pleaded that the 9 August 1984 appointments were invalid. It was also alleged that as a consequence the "title" of the receivers and managers, and therefore of those who took through them (the first, second, fourth and fifth respondents), were defective. Knowledge of the defective "title" of the receivers and managers was relied on also to found an allegation of a breach of duty by the present third respondent. Although in some respects these various consequences are now differently formulated, what is alleged remains in essence the same. The only material change is that the appellants have now identified a further basis on which they seek to establish that the appointments of the receivers and managers on 9 August 1984 was invalid. The allegations as to the consequences of the alleged invalidity remain essentially the same.
Although this "fresh" evidence was known to the appellants when the appeal was argued in Bride v Freehill Hollingdale & Page and Ors (supra) there was no attempt to rely on it during the appeal. It was, however, expressly introduced when special leave to appeal from the decision of the Full Court was sought before the High Court. There the appellants sought to persuade the High Court, on the basis of yet a further minute of proposed substituted statement of claim, that special leave should be granted and the appeal allowed so that the appellants could have a further opportunity to replead in accordance with that minute. By that minute, especially by the proposed cl 24.5, the present appellants proposed to raise against each of the present second to fifth respondents precisely the "fresh" evidence and the alleged invalidity of appointments on which the present appellants now seek to rely to distinguish the present claim from all previous claims. In the reasons of the majority of the High Court for refusing special leave, which were delivered on 23 December 1996, it was said that "any appeal would have no prospect of success". It was expressly noted in the reasons that the regard had been had by the members of the court "to all matters raised in the applications …".
In this regard I would respectfully note it is the plaintiff's case relying on the "fresh" evidence, that the receivers and managers were not validly appointed pursuant to the mortgages over the lands in question on 9 August 1984 because their appointments were not effected until 22 August 1984. But no event relevant to title to the land occurred between 9 and 22 August 1984. The sales relied on were in 1985. As the receivers and managers were appointed on 22 August 1984 it is not shown how any failure to appoint on 9 August 1984 can avail the plaintiffs in these proceedings.
Further, even if the appellants are in a position to propound a new basis for their claim that the receivers and managers were not validly appointed on 9 August 1984, there still remains their inability, which has been the subject of past decisions, to identify and plead a basis on which they could then succeed against either of the second respondents, or of any of the third, fourth or fifth respondents, as a consequence of an invalid appointment. They have previously sought to raise variously what had been identified to be allegations of conflict of interest, dishonesty, breach of solicitor/client duty, fraud and unlawful conspiracy as a basis for obtaining relief against the second, third, fourth and fifth respondents, but without success. No new matter or novel basis of liability is now raised in these respects. These past attempts did not fail because the plaintiffs had not adequately pleaded or established invalidity of appointment of the receivers and managers. They failed because the plaintiffs were unable to plead or demonstrate a basis on which any such invalidity would entitle the plaintiffs to consequential relief against the present second respondents, or any of the third, fourth or fifth respondents.
The appellants have previously failed in attempts to pursue claims against the second respondents founded in what are substantially the same issues of fact and law as are now sought to be relied on to found relief against the second respondents. In each case they failed to establish the existence of any reasonable question to be tried. What is now proposed to be pleaded does not put the appellants' case on any more sound or promising basis than has been previously attempted.
In my view no reasonable question to be tried is raised against the second respondents by the proposed fresh claim. This would be so even if it was shown that the receivers and managers were not validly appointed with respect to the land in question on 9 August 1984. For this reason alone, it would not be appropriate to allow further leave to amend to substitute the statement of claim now contemplated against the second respondents. As no other basis for a claim against the second respondent has been shown to exist it is inevitable that leave to further amend should be refused. That was the decision reached by the Acting Master. It follows that the action was rightly dismissed against the second respondent.

Third, Fourth and Fifth Respondents

The observations that have just been made apply also to the third, fourth and fifth respondents.
As against the third respondents, Elders Pastoral Ltd, a claim is now proposed founded in a duty of care which it is to be alleged was owed to the appellants because the third respondent was a licensed real estate agent. The proposed pleading does not identify with any greater precision the foundation of, or the nature of, the alleged duty of care. In submissions it seemed that negligence is relied on, although the pleading is so imprecise as to be capable of being adapted to fiduciary, tortious, contractual or statutory duties. The "pleaded" particulars of the duty do not take matters further. They may be summarised as duties to:
•       33.1, to ensure the appointment of the receivers and managers was valid;
•       33.2, to ensure the (appellants) for whom they acted were not coerced or unfairly intimidated;
•       33.3, to insist that upon evidence or allegation of fraud or wrongdoing that a ruling from the courts or the real estate board be obtained; and
•       33.4, acting for one party at the loss and expense of the registered owners when there was obvious dispute between the parties.
During argument it was accepted to be common ground that the third respondent was appointed by the vendors of the property. Nothing appears, therefore, or is contended, on which the allegation in 33.2 that the third respondent acted for the appellants could be made out. The submissions have failed to identify the nature of any duty that existed in the circumstances relied on, which would give rise to any of the incidents of duty particularised in the proposed pleading or which might otherwise provide a foundation for relief in favour of the appellants. While there are other proposed amendments to the pleading which were before the Master, these seek to overcome other apparent deficiencies in the form of that pleading, they do not seek to change the basic allegation of duty on which the pleading depends.
A previous claim against the third respondent, arising out of these same circumstances, which sought to raise breach of fiduciary duty has been struck out; Bride v Freehill Hollingdale & Page & Ors, (supra). Save for the alleged "fresh" evidence as to the invalidity of the appointments of the receivers and managers on 9 August 1984, there is no material distinction between what was there alleged and the present. In my view, to the extent that the present pleading may be an attempt to raise again a breach of fiduciary duty of the nature which the appellants now seek to plead against the third respondent it must fail as that issue has been determined between the parties. To attempt to do so is also an abuse of process not only as between Mr and Mrs Bride and the precise parties to the earlier action, but also others; Reichel v McGrath (1889) 14 App Cas 665 at 668, Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 410, and generally Walton v Gardiner (1992-1993) 177 CLR 378 at 392-393..
Any non-fiduciary duty which might be within the proposed pleading would require the commencement of these proceedings within six years of the cause of action accruing by virtue of the Limitation Act 1935. The cause of action accrued no later than December 1986. These present proceedings were not instituted until June 1996. In these respects any claim is necessarily statute barred. Further, insofar as some breach of a duty other than a fiduciary duty may be relied upon, I am unable to discern a cause of action in the pleading or to see that amendment could overcome that deficiency.

Other Issues

With respect to the other issues in this appeal I would not otherwise wish to add to what has been said by McKechnie J in his reasons.
The appeal should be dismissed.

McKECHNIE J:

Introduction

It can happen that a person's quest for what they perceive to be justice can wreak injustice on other parties.
For this reason the law has placed a number of remedies at the court's disposal to overcome oppressive litigation.
The principle of res judicata provides finality to litigation preventing the subject matter of a case which has been decided becoming a fresh cause of litigation.
The principle of issue estoppel prevents a party from again raising an issue of law or fact which has been resolved in earlier proceedings.
Statutory provisions limit the time during which action may be taken to enforce a right or seek redress for a wrong.
Underlying all, a court has powers, inherent in its constitution as a court, to control its own processes so as to prevent abuse.
Mr Bride, whether on his own account, or with his wife as trustee of the Pinwernying Family Trust, has been a very persistent litigant.
In 1984 The Australian Bank foreclosed on the stockfeed business run by the trust at Katanning. Mr and Mrs Bride's properties were sold. They lost everything. A detailed history of these events is to be found in earlier judgments of this Court, for example: Bride v Freehill Hollingdale & Page & Ors, unreported; FCt SCt of WA; Library No 950548; 16 October 1995 at 4 ‑ 7 (Ful 115/92). In that case the first appellants were Edward James Bride and Wendy Margaret Bride as Trustees of the Pinwernying Family Trust, in person and Wendy Margaret Bride as a second appellant.
Mr Bride is a litigant in person. Over the years he has no doubt developed some understanding of the law and some skill in expressing his contentions. However his continuing difficulty has been to enunciate a clear cause of action. His wife has taken no active part in this appeal. She is also a litigant in person.
Mr and Mrs Bride as trustees have previously sued Freehill Hollingdale and Page, Elders Pastoral Ltd, Mr and Mrs Porter and Mrs and Mrs Fulford, all respondents in the present action.

Although he has not sued Anglo Australian Foods Pty Ltd by name Mr Bride has sued its subsidiary, Milne Feeds Pty Ltd, about the same matter.
The Brides have been unsuccessful. The Full Court has dismissed all the appeals.
Notwithstanding these decisions Mr Bride on behalf of the Pinwernying Trust and on his own behalf has sought to sue all the same parties again. In place of Milne Feeds Pty Ltd he has taken action against Anglo Australian Foods Pty Ltd.
Each defendant successfully applied to the Acting Master in 1996 to have the claims against them dismissed.
This appeal from the Acting Master's decision is heard nearly three years after the event.
The contention of each respondent is slightly different and it is necessary to examine the position of each respondent to the appeal separately.

The Appellants' claim of fraudulent conduct

Mr Bride claims there is a factual matter that has been discovered which puts a new complexion on the cases and, in effect, allows the appellants to maintain the action in its current form.
The factual issue arises this way.
Mr Bride says that on 20 October 1994 for the first time he became aware of certain documents which give rise to a conclusion that there has been a concealed fraud.
To understand the nature of the alleged concealed fraud it is necessary to go back in time to 1984.
In August 1984 Mr Bride was handed a notice which read as follows:
"NOTICE OF APPOINTMENT OF RECEIVERs AND MANAGERS
EDWARD JAMES BRIDE and WENDY MARGARET BRIDE TRADING AS 'OATMILLING OF KATANNING' AS TRUSTEES FOR THE PINWERNYING TRUST
TAKE NOTICE that DAVID JAMES YOUNG and I have this day been appointed Receivers and Managers by the Mortgagee, Australian Bank Limited under Mortgage numbered C337514 and Mortgage numbered C646218, and granted by you in favour of Australian Bank Limited and registered at the Registrar of Titles on 8th April 1982 and 31st October, 1983 respectively.
Dated the 9th August 1984
(Signed) John D Anderson
JOHN DURES ANDERSON"
In handwriting on that note is the following inscription:
"George Scott witnessed receipt of me handing the attached notices to Ted Bride at 9.35 am 10/8/84. S.G. Scott 10/8/84"
In October 1994, 10 years later, Mr Bride discovered from the files of Peat Marwick Mitchell, the firm of which the two receivers were partners, a document in identical form and also signed but with the note "not yet appointed" in handwriting.
By Companies Form 79 "Notice of Address of Office of Receivers and Managers" the receivers recited:
"WE, DAVID JAMES YOUNG and JOHN DURES ANDERSON of Messrs Peat Marwick Mitchell & Co, 191 St George's Terrace, Perth, appointed as the Receivers and Managers of the property of Edward James bride, Wendy Margaret Bride, Swan Stock Foods Pty Ltd, Bride Foods Pty Ltd, specified in the Schedule, on the 9th day of August, 1984, under the powers contained in an instrument dated the 8th day of April together with the following instruments:
(1)Guarantee and Indemnity dated 26th march 1982 given by Edward James Bride and Wendy Margaret Bride to the Australian Bank Limited;
(2)Debenture undated but stamped on 30th December 1982 given to the Australian Bank Limited by Swan Foods Pty Ltd;
(3)Debenture undated but stamped on 30th December 1982 given tot he Australian Bank Limited by Bride Foods Pty Ltd;
(4)Guarantee undated but stamped on 30th December 1982 given to the Australian Bank Limited by Swan Stock Foods Pty Ltd and Bride Foods Pty Ltd;
(5)Mortgage C646218 granted by Edward James Bride and Wendy Margaret Bride to the Australian Bank Limited in respect of the whole of the land comprised in Certificate of Title Volume 1654 Folio 429;
(6)Bill of Sale by way of security dated 24th August 1983 granted by Edward James Bride and Wendy Margaret Bride to the Australian Bank Limited;
(7)Bill of Sale by way of security dated 23rd march 1984 granted by Edward James Bride and Wendy Margaret bride to the Australian Bank Limited."
It appears that on 9 August 1984 The Australian Bank appointed the receivers and managers under a bill of sale in Book No 204 Register No 58533.
They were also appointed under a bill of sale registered No 26960.
The appointment of the receivers and managers under the mortgages referred to in the notice handed to Mr Bride did not appear to take place until 22 August 1984.
Whether the apparent entry into possession by the receivers and managers on 10 August 1984 constitutes a fraud in the circumstances is not a matter about which this Court need express an opinion. Nor is it necessary to pause to consider whether it constitutes a "concealed fraud" because one thing is abundantly clear: neither the receivers and managers nor The Australian Bank are parties to the present action.

The present appeal

This appeal was listed before the Full Court on 19 March 1999 but did not proceed beyond directions on that day. The Court made the following directions:
2.At the adjourned hearing the issues be confined to the following:-
(a)Whether the learned Acting Master erred in his findings concerning res judicata.
(b)Whether the learned Acting Master erred in his findings concerning the limitation of actions.
(c)Whether the learned Acting Master erred in refusing the Appellants an opportunity to replead their Statement of Claim. In determining whether leave to amend should have been given, the Court will have regard, amongst other things, to the amended statement of claim which has last been filed.
(d)Even if the Appellants succeed on issues (a) and (b), whether they should succeed in the appeal as a whole having regard to the whole of the learned Acting Master's findings.
(e)Whether the learned Acting Master erred in law in ruling there was no right of action against the Third Respondent."

The proposed amended statement of claim

At the resumed hearing of the appeal, Mr Bride readily conceded that the statement of claim before the Acting Master was defective.
He argued the appellants should have been given leave by the Acting Master to further amend the statement of claim rather than have the claim dismissed.
In the course of the transcript of the hearing before the Acting Master there are several occasions where Mr Bride suggests that he should be allowed to amend the statement of claim. At one stage he said:
"If there is a problem with the pleadings, please give us a chance to amend them correctly and listen to what your reasons for judgment are, if you so decide, but it should not - in the importance of this particular issue and the conduct of the defendants as they have been stated to you, it should not be able to, in the interests of justice, just be able to wiped out once again."
This plea was repeated.
On 8 February 1999 Mr Bride swore an affidavit in these proceedings and annexed to that affidavit a "minute of proposed substituted statement of claim".
In par 10 he deposed:
"I say and acknowledge that the said 'Amended Pleadings' may be technically defective and open to some form of challenge. I also say and truly believe that the Court has the inherrent (sic) power and should thereby refer the Plaintiffs to The Western Australian Law Society for some form of expert assistance in the preparation of the Pleadings."
The Court has no such power. I am mindful of the fact that the applicant is a litigant in person. However, every indulgence has been extended to him over the years. The fact that a person is legally unrepresented is a misfortune not a privilege.
It is not clear whether the Acting Master was in error in refusing not to allow the appellants a further opportunity to amend the statement of claim. Having regard to the history of the matter, it may be that, as an exercise of discretion, he was justified in not entertaining the request.
However, in the interests of justice, the proposed claim will be examined to see whether there is an issue disclosed as against any of the respondents, such as to justify the continuation of the action.
If it fails to disclose a cause, there should be no further opportunity extended to the appellants to get their claims in order, as to do so would be to visit substantial injustice on the various respondents.

The First Respondent

Anglo Australian Foods Pty Ltd

The claim for relief in the proposed claim against Anglo Australian Foods is as follows:
"1.Against the first defendant:
1.1A declaration that the First Plaintiffs as trustees of the Pinwernying Family Trust are the beneficial owners of the property described in the Statement of Claim as 'the stockfeed mill'
1.2A declaration that the First and Second Defendants hold the stockfeed mill upon trust for the First Plaintiffs.
1.3Exemplary damages and ordinary damages as against the First Defendant to be assessed
1.4Interest upon any award of both damages from the date of the damage being incurred to the date of payment pursuant to s32 of the Supreme Court Act
1.5Such other orders as this Honourable Court deems fit
1.6Costs."
Before the Acting Master, Anglo Australian Foods Pty Ltd sought summary judgment under O 16. In support of the application Anglo Australian Foods Pty Ltd filed an affidavit by Mr Calligaro. That affidavit annexed the terms of the agreement of the purchase of the property which is described in the proposed claim. It makes clear that the purchaser of the property described in the proposed claim as the Stockfeed Mill was Milne Feeds Pty Ltd, not Anglo Australian Foods Pty Ltd.
The plea in the proposed statement of claim as to ownership of land is at 5.5:
"The first defendant, who are owned by the second defendants who to‑gether and jointly own the Plaintiffs land known and referred to as the stock feed land and mill by way of their subsidiary company known as Milne Feeds Pty Ltd."
Even assuming for the moment Mr Bride is correct in his contention that Milne Feeds Pty Ltd is a wholly owned subsidiary of Anglo Australian Foods Pty Ltd, nevertheless Anglo Australian Foods Pty Ltd is still not the registered proprietor of the land and cannot be said in any circumstances to hold the stockfeed mill on trust for Mr and Mrs Bride as Trustees of the Pinwernying Trust.
Even on the proposed claim, the application by Anglo Australian Foods Pty Ltd for summary judgment would have to be successful.
There is however a second reason why the claim against that company must fail.
On 21 November 1995 the Full Court handed down its decision in Bride v Milne Feeds & Anor, unreported; FCt SCt of WA; Library No 950622; 21 November 1995 (Ful 145/93). The sole appellant was Edward James Bride.
That claim was in relation to a caveat over the subject land.
The land had been owned by the appellants and mortgaged to The Australian Bank.
The receivers sold the land to Southern Foods Pty Ltd who subsequently sold the land to Milne Feeds Pty Ltd.
In the course of their joint judgment Kennedy and Owen JJ (with whom Anderson J agreed) said at 24:
"Milne was obviously aware when it was negotiating to purchase the Land that a caveat had been lodged against the title. Indeed, there included in its agreement to purchase the Land two specific references to this caveat. However, it completed the purchase only after the caveat had been removed following the finding by the Chief Justice that the appellant's serious allegations of fraud against Southern were unsubstantiated by any credible or relevant evidence and after he had indicated that he did not consider the materials raised a vestige of an arguable case against Southern. It cannot, in our view, reasonably be suggested on the evidence before us that Milne's suspicions were aroused and that it abstained from making enquiries from fear of learning the truth - see Assets Company Ltd v Mere Roihi [1905] AC 176 at 210.
In the circumstances of this case, having regard to the pleaded issues raised in the proposed statement of claim, it follows that if the claim against the subsidiary company failed, a case raising the same issues against the parent company must also fail.
The claim against Anglo Australian Foods Pty Ltd is without merit and, in consequence, the appeal as against the first respondent should be dismissed.

The Other Respondents

Before considering the position of the other respondents, it should be noted that the Full Court has already adjudicated upon an action brought by the Brides against the rest of the respondents, Freehill Hollingdale & Page, Elders Pastoral Ltd, Mr and Mrs Porter and Mr and Mrs Fulford: Bride v Freehill Hollingdale & Page & Ors, , Library No 950548 (Ful 115/92) (supra).
On 28 July 1992 the Master refused the appellants leave to amend the statement of claim in that action and dismissed the claim. The Brides appealed against that decision.
The Full Court dealt with the factual background and then dealt with the claim against each of the parties. The Court dismissed the appeal as against each party.
Unless the proposed claim articulates a clearly different cause of action from that upon which the Full Court has already ruled, the consequence must be that this appeal will be dismissed.
The basis of that decision would prevent relitigation of the issues in this case upon which the Full Court has given judgment. The Trust was a plaintiff in each case and the substitution of Mr Bride for Mrs Bride as the other plaintiff does not alter the position having regard to the pleaded issues.

The Second Respondents

Freehill Hollingdale & Page and Muirwil Nominees Pty Ltd

The addition of Muirwil Nominees Pty Ltd to the action together with Freehill Hollingdale & Page adds nothing to the claim.
It is asserted in the proposed amended statement of claim that Muirwil Nominees Pty Ltd managed, owned and controlled, Anglo Australian Foods Pty Ltd. Even if that were true, the allegation is irrelevant because the actions of Anglo Australian Foods Pty Ltd cannot give rise to any cause of action for the reasons already expressed.
Apart from the anomaly about the appointment of the receivers and managers, to which I have referred, there is nothing which sets the proposed claim apart from the previous claim which was struck out in Bride v Freehill Hollingdale & Page & Ors, Library No 950458 (Ful 115/92) (supra).
As to the anomaly, Mr Bride submitted that the discovery of the document in the file of Peat Marwick Mitchell constituted fresh evidence which he was entitled to have considered. This is said to set this action apart from the action dismissed in Bride v Freehill Hollingdale & Page, Library No 950458, Ful 115/92 (supra).
The effect of this evidence has in fact been considered by the Full Court in another appeal involving Mr Bride: Bride v Milne Feeds Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 970060; 21 February 1997 (Ful 93/96). In that action, Edward James Bride was the plaintiff and appellant.
Heenan J (with whom Kennedy and Franklyn JJ agreed) dealt with the point at 4 - 5 of his judgment. In the course of his reasons, Heenan J noted that the point had been raised and considered by the Full Court in Bride v Milne Feeds, Library No 950622 (Ful 145/93) (supra). After setting out a portion of that earlier judgment, Heenan J continued at 5:
"Whatever may have occurred prior to 22 August 1984 there was nothing to suggest that the receivers and managers were not validly appointed on that day. There is no suggestion that they purported to take any relevant steps with regard to the sale of the land prior to 22 August."
Mr Bride has been unable to persuade me that there is sufficient substance in the point to cause me to take a view of it different from the judgments to which I have referred.
Mr Bride on behalf of the Trust and himself, seeks to relitigate a point which the Full Court has decided against him in circumstances where as pleaded the position of the Pinwernying Trust is the same as his own position. The Full Court decision in Bride v Milne Feeds Pty Ltd, Library No 970060 (Ful 93/96) (supra) effectively acts to prevent the same issue being further litigated by the Pinwernying Trust.
This appeal should be dismissed.

The Third Respondent - Elders Pastoral Ltd

In the judgment, Bride v Freehill Hollingdale & Page & Ors, Library No 950548 (Ful 115/92) (supra), the Full Court dealt with the claim against Elders Pastoral Ltd and held that the claim for fiduciary duty against the company failed.
The Acting Master was bound by that decision when considering the statement of claim before him in these proceedings. He was correct in striking out the action.
The appellants have now sought to recast the claim against Elders Pastoral Ltd somewhat.
In the proposed claim at par 33 p 12:
"At all material times the Third Defendant was a company incorporated in the State of Western Australia and acted in business as licensed real estate agents. As licences Real Estate Agents the third defendants owed the Plaintiffs a duty of care."
The claim is therefore sought to be recast and pursued on the basis of negligence of the vendor's agents.
However, the claim is in substance a plea on the same facts which have been decided by the Full Court as not disclosing a cause of action.
It relates to the same events and simply seeks to recast the duty while relying on the same facts.
This issue having been in substance decided against the appellants, they are estopped from raising it again. Any contractual relationship Elders may have had with any party to the sale was not with the appellants. There is no basis for a claim of negligence pleaded at par 33 of the proposed statement of claim.
In any event the cause of action accrued at the latest on 4 December 1986. These proceedings were not issued until 17 June 1996, nearly 10 years after the cause of action accrued, and well outside the limitation period of six years: Limitation Act 1935 s 38(1)(c)(vi). It is not pleaded that Elders were a party to the concealment of any fraud.
The appeal against the third respondent should be dismissed.

The Fourth and Fifth Respondents

Mr and Mrs Porter and Mr and Mrs Fulford

In the course of the Full Court judgment in Bride v Freehill Hollingdale & Page & Ors, Library No 950548 (Ful 115/92) (supra), the previous attempt by the appellants to formulate a cause of action against Mr and Mrs Porter and Mr and Mrs Fulford, was considered by the Court which said at p 25:
In our opinion there is nothing in the materials before us that would take the matter any further. In this respect the position is no different so far as concerns the Fulfords than it is in relation to the Porters. It is not sufficient for the appellants to say that at the time when the purchasers entered into the contracts to purchase they were aware of the legal contest between the appellants on the one hand and the Bank and other parties on the other hand. Mere knowledge of the contest is not sufficient. The purchasers having become the registered proprietors, their title would be unimpeachable unless it could be established that the seller (in this case the Bank) was guilty of fraud and that the purchasers took the transfer in such a way that they could be said to have been guilty of actual or equitable fraud. When it is put in this way it can be seen, quite clearly, that this is a collateral attack on the exercise of the power of sale by the Bank. In our opinion, the way that the appellants have mounted or would seek to mount that claim against the Porters and the Fulfords in this action (to which the Bank is not a party) is impermissible."
The Full Court then held there was no substance in the allegations raised against Mr and Mrs Fulford and Mr and Mrs Porter and dismissed the appeal.
The matters which the appellants seek to raise in the proposed amended statement of claim arise out of the same facts as were the subject of the previous action and appeal.
To allow the claim to continue against the Porters or Fulfords would be an abuse of the processes of this Court.

Conclusion

In my opinion, the appeal against the decision of the Acting Master is bound to fail. The Acting Master made no error. It is conceded by Mr Bride that the statement of claim before the Acting Master was defective.
I have approached the matter on a wider basis and examined the appellants' proposed statement of claim to see whether any cause of action can be discerned and which is not barred by any of the principles set out at the commencement of this judgment.
The proposed amended statement of claim does not disclose any identifiable cause of action against any party. The points which the appellants wish to advance have already been litigated in the Full Court in various appeals. To allow the proposed statement of claim to be filed would perpetuate injustice.
The appeal should be dismissed.