Kermani v Westpac Banking Corporation
[2012] VSCA 42
Para 1
…nate liability provisions Part 4 of the Civil Liability Act 2002, and on the decision of the Court of Appeal in Kermani v Westpac Banking Corporation [2012] VSCA 42).…
Whelan Kartaway Pty Ltd v Mark Donnelly
[2012] VSC 45
Para 1
…In Whelan Kartaway Pty Ltd v Mark Donnelly and Ors [2012] VSC 45, Davies J, at [23], noted that "[T]he authorities establish that a finding of Anshun estoppel should not be made lightly and a consideration of all the relevant facts bearing on the question of "unreasonableness" is required. This may include the c…
George v Webb
[2011] NSWSC 1608
Para 1
…Ward J in George v Webb & Ors [2011] NSWSC 1608, at [306], noted, as Barrett J had, that "the proportionate liability provisions of the Civil Liability Act have made significant changes to the law, reshaping the solidary liability available under older statutory schemes concerning concurrent liability (such as s 5 o…
C G Maloney Pty Ltd v Noon
[2011] NSWCA 397
Para 1
…The answer to the question should not be made "mechanistically": see also, C G Maloney Pty Ltd v Noon [2011] NSWCA 397, per Campbell JA at [60]-[62] (with whom Tobias AJA agreed) and Handley AJA at [142]-[143]. It requires the court to consider all the circumstances, not simply to identify common facts in, or subje…
Mitchell Morgan Nominees Pty Ltd v Vella
[2011] NSWCA 390
Para 1
…As has been made clear, by Giles JA (with whom other members of the Court of Appeal agreed) in Mitchell Morgan Nominees Pty Ltd & Anor v Vella & Ors [2011] NSWCA 390:…
Michael Wilson & Partners Ltd v Nicholls
[2011] HCA 48
Para 1
…However, the High Court in Michael Wilson & Partners Ltd v Nicolls [2011] HCA 48; (2011) 282 ALR 685, at [87]-[90] Gummow ACJ, Hayne, Crennan and Bell JJ), discussed the general subject of abuse of process:…
Solak v Registrar of Titles
[2011] VSCA 279
Para 1
…In Solak v Registrar of Titles [2011] VSCA 279, Warren CJ (with whom Neave JA and Hargrave AJA agreed), after referring to a number of the authorities mentioned above, said, at [70] - [71]:…
The Owners Strata Plan No. 62660 v Jacksons Landing Development Pty Limited
[2011] NSWSC 415
Para 1
…Ball J referred to Barrett J's decision with approval in Owners Strata Plan No 62660 v Jacksons Landing Development Pty Ltd [2011] NSWSC 415, at [15].…
Kayteal Pty Ltd v Dignan
[2011] NSWSC 197
Para 1
…damage - even if the claims are based on more than one cause of action: Civil Liability Act , s 34(1)(a): Kayteal Pty Ltd v John Joseph Dignan & Ors [2011] NSWSC 197 at [66], per Brereton J.…
Perpetual Trustees Australia Limited v Paladin Wholesale Funding Pty Limited
[2011] FCA 473
Para 1
…pleading what may be described as "the proportionate liability defence": Perpetual Trustees Australia Limited v Paladin Wholesale Funding Pty Limited [2011] FCA 473, at [49] per Emmett J. Mr Grevler did not allege a cause of action by the Plaintiff against the Defendant (or anyone else) in the First Proceedings.…
Burns v Grevler
[2010] NSWSC 1219
Para 1
…t Proceedings were heard, and determined, by Rein J in late 2010. The medium neutral citation of his Honour's reasons for judgment is Burns v Grevler [2010] NSWSC 1219. There was no appeal.…
Bracks v Smyth-Kirk
[2010] HCATrans 145
…181 Bradford & Bingley Building Society v Seddon & Ors 1999] 1 WLR 1482; [1999] EWCA Civ 944 Bracks v Smyth-Kirk [2009] NSWCA 401 Bracks v Smyth-Kirk [2010] HCATrans 145 Brewer v Brewer [1953] HCA 19; (1953) 88 CLR 1 Burns v Grevler [2010] NSWSC 1219 C G Maloney Pty Ltd v Noon [2011] NSWCA 397 Champerslife Pty Ltd v M…
Charben Haulage Pty Ltd (in liq) V Beilby (t/as Costello)
[2010] NSWSC 510
Para 1
…In Charben Haulage Pty Ltd (in liq) V Beilby [2010] NSWSC 510, Hislop J at [57] concluded that "the Anshun principle may be applied where the later proceedings are against a different defendant, at least, where conflicting judgments may result".…
Solak v Registrar of Titles (No 2)
[2010] VSC 146
Para 1
…Davies J in Solak v Registrar of Titles No 2 [2010] VSC 146, at [12], said:…
Equuscorp Pty Ltd and Sintoff Pty Ltd v Acehand Pty Ltd & Ors
[2010] VSC 89
Para 1
…In Equuscorp Pty Ltd v Acehand Pty Ltd [2010] VSC 89, Hollingsworth J, discussing Anshun estoppel (albeit in the context of an amendment of pleadings) said:…
Champerslife Pty Ltd v Manojlovski
[2010] NSWCA 33
Para 1
…In Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245, Giles JA, said:…
Meriton Apartments Pty Ltd v Industrial Court of New South Wales
[2009] NSWCA 434
Para 60
…inctly stated by Handley AJA, with whom Allsop P and Tobias JA relevantly agreed, in Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 434 at [60], "[t]he Anshun test is based on the reasonableness or otherwise of the conduct of a litigant in earlier proceedings". The statement may need…
Re AWB Limited No 10
[2009] VSC 566
…Act 1946 (NSW) Supreme Court Act 1970 Trade Practices Act 1974 Uniform Civil Procedure Rules 2005 Cases Cited: AWB Limited No 10, Re [2009] VSC 566; (2009) 76 ACSR 181 Bradford & Bingley Building Society v Seddon & Ors 1999] 1 WLR 1482; [1999] EWCA Civ 944 Bracks v Smyth-Kirk [2009] NSWCA 401 Bracks v Smyth-Kirk [20…
Bracks v Smyth-Kirk
[2009] NSWCA 401
Para 1
…A decision to stay or dismiss proceedings on the basis that they are an abuse of process involves the exercise of discretion: Bracks v Smyth-Kirk [2009] NSWCA 401, per McColl JA, at [144].…
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd
[2009] HCA 43
Para 1
…process are not closed: Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd; Jeffery & Katauskas Pty Limited v Rickard Constructions Pty Limited [2009] HCA 43; (2009) 239 CLR 75.…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27
…5. In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] 258 ALR 14 at [33] French CJ noted that "abuse of process principles may be invoked to prevent attempts to litigate that which should have been litigated in Earlier Proceedings as well as attempts to re-litigate that which has already been determined."…
Habib v Radio 2UE Sydney Pty Ltd
[2009] NSWCA 231
Para 1
…A similar statement had been made in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, by McColl JA (with whom Giles and Campbell JJA agreed) at [84]-[85]:…
Bracks v Smyth-Kirk
[2008] NSWSC 930
Para 16
…udgment) greater than the loss. The section is similar to section 5(1)(b) of the Law Reform Miscellaneous Provisions Act 1946. In Bracks v Smyth-Kirk [2008] NSWSC 930 at [16], [52] - [53] McCallum J took into account both the judgment and the actual recovery of compensation.…
R&J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd
[2008] NSWSC 232
Para 1
…As to a finding of unreasonableness, Bryson AJ in R&J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232 said:…
Reinhold v New South Wales Lotteries Corporation (No 2)
[2008] NSWSC 187
Para 1
…In Reinhold v New South Wales Lotteries Corporation (No 2) [2008] NSWSC 187, Barrett J (as his Honour then was), held that the references to "claims" in Pt 4 of the Civil Liability Act are references to "determined or decided claims that have been established as sources of liability" and that a person is only a "co…
Redowood Pty Ltd v Link Market Services Pty Ltd
[2007] NSWCA 286
Para 1
…In Redowood Pty Limited v Link Market Services Pty Limited (formerly Known As Asx Perpetual Registrars Limited) [2007] NSWCA 286, Hodgson JA (with whom Mason P and Bryson AJA agreed) said at [45]:…
Cleary v Jeans
[2006] NSWCA 9
…ere technicalities: R v Humphrys [1977] AC 1 (at 41) per Lord Hailsham; cited with approval by Handley JA (Young CJ in Eq agreeing) in Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355 (at [19]). The Court can look at "any material that shows what issues were raised and decided": Rogers v R (at 263) per Brennan…
Bazos v Doman
[2001] NSWCA 347
Para 44
…ed is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form: see Bazos and Anor v Doman and Ors [2001] NSWCA 347 (at [44]) per Stein JA (Priestley and Beazley JJA agreeing) and the authorities to which his Honour refers. In determining whether an Anshun estoppel…
Rippon v Chilcotin Pty Ltd
[2001] NSWCA 142
…is estopped (ie "Anshuned") from bringing the instant proceedings, or the proceedings are an abuse of process. See Rippon v Chilcotin Pty Ltd [2001] 53 NSWLR 198."…
Ling v Commonwealth
[1996] FCA 669
…ious step, [and] a power not to be exercised except 'after a scrupulous examination of all the circumstances' ": Ling v Commonwealth [1996] FCA 1646; (1996) 68 FCR 180 (at 182) per Wilcox J, approved in Bazos (at [45]) per Stein JA (Priestley and Beazley JJA agreeing); see also Brisbane City Council v Attorney-Gener…
Walton v Gardiner
[1993] HCA 77
Para 1
…In Walton v Gardiner [1993] HCA 77; 177 CLR 378, at 393, Mason CJ, Deane and Dawson JJ said:…
Williams v Spautz
[1992] HCA 34
Para 1
…The onus of satisfying the court that there is an abuse of process, which is "a heavy one", lies upon the party alleging it: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 (at 529) per Mason CJ, Dawson, Toohey and McHugh JJ. The person alleging an abuse of process must establish the facts that make the furt…
Tanning Research laboratories Inc v O'Brien
[1990] HCA 8
Para 1
…In Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; (1990) 169 CLR 332, at 346, Brennan and Dawson JJ said:…
Port of Melbourne Authority v Anshun Pty Ltd
[1981] HCA 45
Para 1
…In Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, at 598, Gibbs CJ, Mason and Aickin JJ approved that statement of principle.…
Brewer v Brewer
[1953] HCA 19
Para 1
…eding to "conflict" with the judgment in the earlier proceeding. On this question, Gibbs CJ, Mason and Aickin JJ referred, at 603, to Brewer v Brewer [1953] HCA 19; (1953) 88 CLR 1, the discussion in which they described as "illuminating". In that case, Fullagar J (with whom Dixon CJ agreed), at 15, made clear t…
Henderson v Henderson
[1948] HCA 15
Para 1
…In Henderson v Henderson (1843) 3 Hare 100, at 115; 67 ER 313, at 319, Sir James Wigram VC said:…
Ling v Commonwealth
[1996] FCA 1646
…gation...is a serious step, [and] a power not to be exercised except 'after a scrupulous examination of all the circumstances' ": Ling v Commonwealth [1996] FCA 1646; (1996) 68 FCR 180 (at 182) per Wilcox J, approved in Bazos (at [45]) per Stein JA (Priestley and Beazley JJA agreeing); see also Brisbane City Counc…
Henry v Brookfields
[2007] NZHC 265
Para 1
…o be dismissed, or stayed, on the basis of an abuse of process than a defendant who, or which, is being sued for the second time: Henry v Brookfields [2007] NZHC 265, per Hansen J, at [9], referring to Bradford & Bingley Building Society v Seddon & Ors [1999] 1 WLR 1482; [1999] EWCA Civ 944.…
Under section 37, Burns cannot claim the amount of $2.9 million against Ingram. See Catchpole v Elders Bangalow
[2008] NSWCTTT 1450
…just for an apportionable part of it. Under section 37, Burns cannot claim the amount of $2.9 million against Ingram. See Catchpole v Elders Bangalow [2008] NSWCTTT 1450 (a landlord who was awarded $12,000 against his tenant in an earlier suite could not later claim this amount against his agent in relation to an appo…
[2002] 2 AC 1
[2002] 2 AC 1
Para 1
…In Johnson v Gore Wood & Co [2002] 2 AC 1, Lord Bingham, at 32, said:…
67 ER 313
67 ER 313
Para 1
…In Henderson v Henderson (1843) 3 Hare 100, at 115; 67 ER 313, at 319, Sir James Wigram VC said:…
[1999] 1 WLR 1482
[1999] 1 WLR 1482
Para 1
…sued for the second time: Henry v Brookfields [2007] NZHC 265, per Hansen J, at [9], referring to Bradford & Bingley Building Society v Seddon & Ors [1999] 1 WLR 1482; [1999] EWCA Civ 944.…
[1979] AC 411
[1979] AC 411
…per Wilcox J, approved in Bazos (at [45]) per Stein JA (Priestley and Beazley JJA agreeing); see also Brisbane City Council v Attorney-General (Qld) [1979] AC 411 (at 425) per Lord Wilberforce."…
[1977] AC 1
[1977] AC 1
…r refers. In determining whether an Anshun estoppel has been established, the court inquires into realities and not mere technicalities: R v Humphrys [1977] AC 1 (at 41) per Lord Hailsham; cited with approval by Handley JA (Young CJ in Eq agreeing) in Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355 (at [19]…
Cromwell v County of Sac
(1876) 94 US 351
…to bring forward all claims on related subjects at the same time. This is well illustrated by the outcome in Cromwell v County of Sac [1876] USSC 62; (1876) 94 US 351 cited in Anshun at 599."…
1 WLR 1482
1 WLR 1482
…l Procedure Rules 2005 Cases Cited: AWB Limited No 10, Re [2009] VSC 566; (2009) 76 ACSR 181 Bradford & Bingley Building Society v Seddon & Ors 1999] 1 WLR 1482; [1999] EWCA Civ 944 Bracks v Smyth-Kirk [2009] NSWCA 401 Bracks v Smyth-Kirk [2010] HCATrans 145 Brewer v Brewer [1953] HCA 19; (1953) 88 CLR 1 Burn…