David James Lindsay - Application under Vexatious Proceedings Act 2014
[2015] VSC 316
•3 July 2015
| Not Restricted |
IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
S CI 2014 6632
IN THE MATTER of an Application by DAVID JAMES LINDSAY under s 54 of the Vexatious Proceedings Act 2014
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JUDGE: | RUSH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 June 2015 |
DATE OF JUDGMENT: | 3 July 2015 |
CASE MAY BE CITED AS: | David James Lindsay - Application under Vexatious Proceedings Act 2014 |
MEDIUM NEUTRAL CITATION: | [2015] VSC 316 |
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VEXATIOUS LITIGANT – Application for leave to commence legal proceedings – Proposed defendant given opportunity to be heard – Previous County Court proceedings – Res judicata – Issue estoppel – Abuse of process – A person may sue once for damages for injuries negligently sustained – Vexatious Proceeding Act 2014 s 3 – Papercorp Pty Ltd v Nicolaou [2006] VSCA 143 – Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Proposed Defendant | Mr M J Hooper | Minter Ellison |
HIS HONOUR:
David James Lindsay, upon the application of the Attorney-General on 16 July 1998, by order of Kellam J was declared a vexatious litigant pursuant to s 21(2) of the Supreme Court Act 1986.
Section 102 of the Supreme Court Act was repealed by the Vexatious Proceedings Act 2014 (the ‘Act’) in October 2014. The Act provides that the previous order declaring Mr Lindsay a vexatious litigant is now to be taken, pursuant to s 91(1) of the Act, to be ‘a general litigation restraint order’ and thus Mr Lindsay is required to apply for leave to commence or continue a proceeding to the Victorian court or tribunal that would hear the proceeding to which the application relates.[1] However, the order of Kellam J requires that any leave application by Mr Lindsay is to be made to the Supreme Court; thus, this application by Mr Lindsay to commence a proceeding in the County Court was heard by me in the Supreme Court.
[1]The Act s 54(2).
Section 3 of the Act defines a vexatious proceeding as –
(a)a proceeding that is an abuse of the process of the court or tribunal;
(b)a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;
(c)a proceeding commenced or pursued without reasonable grounds;
(d)a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
Section 56 of the Act requires an application brought under the Act to disclose –
(a)details of each application for leave to proceed made by the applicant;
(b)details of each application for leave to commence or continue a proceeding made by the applicant under s 21 of the Supreme Court Act 1986, as in force immediately before its repeal;
(c)details of each interlocutory application made or proceeding commenced or conducted by the applicant –
(i)that is a vexatious application or a vexatious proceeding; or
(ii)which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;
(d)an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) if any; and
(e)any other facts material to the application, whether in support or adverse to the application, that are known to the person.
Under s 55 of the Act, the Court, upon being satisfied that –
(a)the proceeding is not a ‘vexatious proceeding’ (as defined) and
(b)there are ‘reasonable grounds for the proceeding’
may grant leave to commence or continue proceedings.
The application
On 15 December 2014, Mr Lindsay applied to the Supreme Court seeking orders to commence a proceeding in the County Court against Carlton United Breweries Limited (‘CUB’). A draft statement of claim concerning the proposed proceeding accompanied the application. A further proposed statement of claim was filed with the Court on or about 18 June 2015 (the ‘proposed claim’).[2]
[2]See Exhibit DJL.014 to affidavit of David James Lindsay sworn 4 June 2015.
The proposed claim alleges that Mr Lindsay suffered injury in three separate accidents in his employment with CUB. The first accident he alleges occurred on 12 November 1984, prior to the introduction of the Accident Compensation Act 1985. The two subsequent accidents referred to in the proposed claim occurred on 17 July 1987 and 11 November 1987 and were subject to the provisions of the Accident Compensation Act. In paragraph 24 of the proposed claim, Mr Lindsay alleges he has sustained pecuniary loss as a consequence of the incident occurring on 12 November 1984 and makes no claim for pecuniary loss concerning the accidents of 17 July 1987 and 11 November 1987. At paragraph 4 of the proposed claim, it is stated:[3]
The accident referred to in paragraph 3 [accident 12 November 1984] and the plaintiff’s injuries were caused by the negligence of the defendant, its servants or agents and/or by the breach of duty of the defendant to the plaintiff as its employee not to expose him to unnecessary risk of injury as found by jury verdict on or about 14 October 1992.
[3]The proposed claim is Exhibit DJL.014 to the affidavit of David Lindsay sworn 4 June 2015.
Mr Lindsay had previously issued County Court proceedings against CUB for the three accidents at work which are the subject of his application for leave to issue proceedings before me. County Court proceeding number 990 004 254 was heard before Judge Byrne and jury in the County Court and concluded with a jury verdict on 14 October 1992. In the amended statement of claim in that County Court matter, signed by counsel Mr J Colman, Mr Lindsay claimed damages against CUB for injury he alleged he sustained due to CUB’s negligence on or about 12 November 1984, 17 July 1987 and 11 November 1987, the same accidents that are relied upon in the proposed claim. In the amended statement of claim, particulars of special damage and loss of earning capacity were claimed in the following terms:[4]
[4]See Exhibit JGC.2 to the affidavit of Jennifer Cox sworn 15 June 2015. During the course of submissions, it was understood for the purposes of this application ‘economic’ loss and ‘pecuniary’ loss meant the same thing.
15.By reason of the matters aforesaid, the plaintiff suffered loss and damage.
Particulars of Special Damage and Loss of Earning Capacity
The plaintiff was born on 4 March 1958.
During the 12 months prior to the first accident the plaintiff was employed by the Defendant earning at a rate which is known to it and will be supplied after discovery. The plaintiff continued work following the first accident but has had various periods of incapacity and restricted capacity, the details of which are known to the Defendant.
It is likely the plaintiff will continue to have periods of incapacity and restricted capacity in the future and that he will thereby suffer economic loss. Insofar as such economic loss is caused by the injury suffered in the first accident, a claim is made for such economic loss. No claim is made in relation to economic loss caused by injuries suffered in the second or third accidents by reason of the provisions of the Accident Compensation Act.
In the County Court, each accident where the plaintiff alleged he sustained injury was the subject of a different question to the jury. The questions and answers of the jury as recorded by hand, apparently by the Associate to Judge Byrne, were produced by Mr Lindsay.[5] Those questions and answers were as follows:
[5]Exhibit DJL.005 to affidavit of David Lindsay sworn 15 December 2014.
1.Was there negligence or breach of duty on the part of the defendant which was a cause of the plaintiff’s injury and damage on 12 November 1984?
Yes.
If yes to question one –
2.then at what amount do you assess the total damages for the plaintiff?
$68,000.
3.Was there negligence or breach of duty on the part of the defendant which was a cause of the plaintiff’s injury and damage on 17 July 1987?
Yes.
If yes to question three –
4.then at what amount do you assess the total damages for the plaintiff?
$45,000.
5.Was there negligence or breach of duty on the part of the defendant which was a cause of the plaintiff’s injury and damage on 11 November 1987?
Yes.
If yes to question five –
6.then at what amount do you assess the total damages for the plaintiff?
$1,000.
An issue for me to determine is whether this new proposed claim in the County Court is an abuse of process because res judicata prevents the claim or alternatively because Mr Lindsay is estopped from pursuing a further claim.
Before dealing with these issues, it is appropriate to refer to the ruling and order of J. Forrest J, 9 April 2015 made on the papers. His Honour ordered, after considering affidavit material and exhibits of Mr Lindsay filed in support of his application, that CUB and the Attorney-General be given notice of this application and the opportunity of being heard as to whether leave should be granted to Mr Lindsay to proceed with the proposed County Court action.
Ruling of J. Forrest J
His Honour stated it was ‘apparent from the verdict and the judgment that the damages awarded were solely for pain and suffering, and no award was made for pecuniary loss’.[6] I am not sure whether his Honour had the amended statement of claim for the 1992 proceeding at the time he considered this matter. His Honour did not refer to it.[7] In any event, the amended statement of claim in the County Court proceeding has been raised for my consideration. As set out above, a claim for pecuniary loss concerning the accident of 12 November 1984 was specifically claimed in that proceeding. I deal further with this issue later in these reasons.
[6]See J. Forrest J, David James Lindsay – Application under the Vexatious Proceedings Act 2014 (Vic) [2015] VSC 129, [25] (the ‘Initial Application’).
[7]Before me, the amended statement of claim for the County Court proceeding was exhibited to the affidavit of CUB’s solicitor, Ms J Cox.
J. Forrest J stated he could not form a concluded view as to whether Mr Lindsay should be given leave to proceed with his claim; he stated it would be contrary to the interests of justice and the underlying purpose of the Act to permit Mr Lindsay to proceed without the validity of his claim being tested and the opportunity afforded to CUB to make submissions on the issues.[8] Two issues were identified by his Honour in justifying the further step. Firstly, Mr Lindsay had been successful in satisfying the jury he had a viable claim in negligence concerning the three accidents and, second, he had not received an award of pecuniary loss damages although he had been paid compensation pursuant to the Accident Compensation Act over a long period of time.[9]
[8]Initial Application, [31]-[32].
[9]Ibid.
Pecuniary loss claim in the previous County Court proceeding
By s 13(5)(1) of the Accident Compensation Act, a worker suffering injury between 1985 and 1 December 1992 in a claim for common law damages for negligence was limited to a claim for non-pecuniary loss. Consistent with this legislation, Mr Lindsay’s claim for damages for injuries at work on 17 July 1987 and 11 November 1987 in the County Court in October 1992 was limited to a claim for non-pecuniary loss. The claim for injuries on 12 November 1984 had no such limitation and, as I have referred to above, was the subject of a claim for economic or pecuniary loss.
Before me, Mr Lindsay submitted in the County Court trial the jury verdict concerning damages for the accident of 12 November 1984 made no determination or decision on the issue of pecuniary loss for the accident of 12 November 1984. He agreed in discussion ‘the paperwork’ indicated the jury did consider the issue of pecuniary loss ‘but they did not make a decision in relation to that issue’.[10] Mr Lindsay contended there has never been a decision in relation to pecuniary loss damages.[11] Mr Lindsay indicated he was not submitting there had never been a claim made for pecuniary loss damages for the 1984 accident. He explained: ‘I’m saying there hasn’t been a payment made to me for – of pecuniary loss damages’.[12]
[10]Transcript of Proceedings, T18.1 - 18.5: T19.8 - 19.11 (Lindsay).
[11]Ibid, T16.28 (Lindsay).
[12]Ibid, T17.3 - 17.6 (Lindsay).
Mr Lindsay sought to rely on the words of J. Forrest J that he had previously not made a claim for pecuniary loss, but as stated above, his Honour did not refer to the plaintiff’s amended pleading in the 1992 County Court proceeding.[13] In any event, his Honour’s reasons indicate the very purpose of permitting Mr Lindsay to proceed with the application to this stage was so that CUB may test his claim and make submissions. His Honour’s view as expressed in his reasons were of a preliminary nature, made without the benefit of submissions and all relevant materials – made on the papers.
[13]The amended statement of claim concerning the 1992 County Court proceeding is to be found at Exhibit JC1 to the affidavit of CUB’s solicitor, Jennifer Cox, sworn 15 July 2015.
In the County Court proceedings, as referred to above, the jury determined that Mr Lindsay made out his claim of negligence against CUB for the accident of 12 November 1984, and that negligence was a cause of the plaintiff’s injuries. The jury assessed Mr Lindsay’s damages to be awarded for this accident in the sum of $68,000. This November 1984 accident was a claim made under what may be described as the ‘old’ common law system. Juries, when assessing damages under the ‘old’ common law system, award damages in a total sum that combines pain and suffering damages and pecuniary loss damages and medical expenses (if applicable) in a single, global figure. It was not the practice, and still is not the practice, in ‘old’ common law claims heard by juries for the jury to break up damages between pecuniary and non-pecuniary loss figures. This is, of course, a procedure that is required under provisions of the Accident Compensation Act. In ‘old’ common law actions, juries award a ‘global sum’ covering all the permissible heads of damage. As Barwick CJ stated in Arthur Robinson (Grafton) Pty Ltd v Carter:[14]
It is the verdict as a single sum which must be juxtaposed to the condition of the plaintiff which has resulted from the injury …
[14](1968) 122 CLR 649, 655.
That the jury award did not separately provide for an award of pecuniary loss is not a basis for submitting there has been no award for pecuniary loss damages concerning the November 1984 injury in the jury verdict. On the basis of the materials before me, it is apparent that Mr Lindsay went to the jury on that very issue. I do not agree with the submission of Mr Lindsay that the only issues determined in 1992 concerning the November 1984 accident was pain and suffering damages and CUB’s negligence.
Res judicata and estoppel
I was referred to the well-known passage from the judgment of Dixon J in Blair v Curran[15] explaining the difference between res judicata and estoppel:
The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
[15](1939) 62 CLR 464, 532.
In my opinion, the materials before me compel a finding that the verdict of the jury before Judge Byrne in October 1992 concerning the November 1984 accident was a verdict for both pecuniary and non-pecuniary loss and, consequently, that action no longer has an independent existence.
Even if the claim for pecuniary loss had not been made in the proceedings before Judge Byrne for the November 1984 accident, it is my opinion that Mr Lindsay would be estopped from bringing this further claim. His claim concerning that accident is ‘indivisible’, it cannot be ‘split into sections’, he can only recover once and for all for physical injury impairment to his bodily and mental health.[16]
[16]See Hardie J in Djordjevic v Australian Iron and Steel Pty Ltd (1964) 82 WN (Pt 1) (NSW) 218, 220.
Ashley JA, in Papercorp Pty Ltd v Nicolaou,[17] stated:
It is fundamental that at common law person may sue once only for injuries sustained by the negligent conduct of another. The person sues, and can only sue, in respect of injuries which have then manifested themselves, and injuries which it is known or reasonably conjectured may ensue, and in respect of the known or potential effect – whether in terms of pain and suffering or pecuniary disadvantage – of any such injuries. If, after a proceeding has ended, some different injury unexpectedly develops, or some physical or financial consequence of known injury unexpectedly ensues, it is too bad. The Limitation of Actions Act 1958 and the obligation of a plaintiff to prosecute a proceeding, rather than let it lie, in different ways deprive a plaintiff of the luxury of waiting to see whether, with the passage of time, new injuries or new and presently unexpected consequences of known injury will develop.
[17][2006] VSCA 143, [30].
When I asked Mr Lindsay about these matters during the course of his reply, he repeated that in the 1992 County Court proceeding there was a claim made for pecuniary loss that ‘wasn’t determined’.[18] He referred to an apparent dispute between medical practitioners in evidence at the County Court trial in the following terms:[19]
Yes my doctors were saying that I wasn’t, but not on the long term. They couldn’t look into a crystal ball, saying that I was going to be off for the rest of my born days, which is now the case, but they were saying that I was unfit for employment, but they weren’t giving any – the jury any indication as to how long.
[18]Transcript of Proceedings, T38.29 (Lindsay).
[19]Ibid, T39.18 - 39.23 (Lindsay).
Later, Mr Lindsay submitted the jury did not determine pecuniary loss because no figures in relation to wages were put to them.[20]
[20]Transcript of Proceedings, T40.6 (Lindsay).
I, of course, am not in a position to know how Mr Lindsay’s case was put to the jury in the trial of 1992. The pleading on behalf of Mr Lindsay was signed by counsel, he was represented by experienced counsel at his trial and it is apparent a claim for loss of earning capacity for economic loss caused by the injury sustained in the first accident was made on his behalf at the County Court trial. It may well be that at the trial a claim was made on behalf of Mr Lindsay for loss of earning capacity based on the principles of Victorian Stevedoring Pty Ltd v Farlow,[21] which would not necessarily involve the use of figures for loss of wages. It is not for me to speculate as to the manner in which the claim for pecuniary loss went to the jury. It appears to be the submission of Mr Lindsay before me that the jury in the 1992 trial failed to properly consider the claim of pecuniary loss concerning the November 1984 accident. I consider this to be highly unlikely and, even if it be correct, it was a matter to be raised at trial or on appeal within the County Court proceeding. It does not give rise to a further cause of action decades later.
[21][1963] VR 594.
Mr Lindsay can sue only once for the accident of 12 November 1984. I am satisfied he successfully sued CUB for injuries caused by the negligence and statutory breach of CUB concerning the 12 November 1984 accident at his County Court trial concluding on 14 October 1992. He claimed and obtained damages at trial for pecuniary and non-pecuniary loss arising out of that accident. As a consequence, res judicata is applicable to this proposed claim. Other proceedings issued in the Supreme Court by Mr Lindsay since his County Court trial in 1992 confirm this finding.
Other proceedings
Ms J Cox, solicitor for CUB, exhibited to her affidavit materials concerning previous Supreme Court proceedings issued by Mr Lindsay.
In Supreme Court proceeding 8172 of 1995, Mr Lindsay claimed damages against CUB for injuries sustained in the course of employment on 12 November 1984, 17 July 1987 and 11 November 1987, and for unfair dismissal from his employment on 15 May 1991. Mr Lindsay made a claim for pecuniary loss and provided particulars of that claim as follows: ‘No claim is made in relation to economic loss caused by the injury sustained in the first accident on 12 November 1984’;[22] that accident, as set out above, had been the subject of a claim for pecuniary loss in the County Court proceeding. The plaintiff claimed, inter alia, in this Supreme Court proceeding for loss of Christmas bonuses, the difference between pre-injury earnings and what he in fact received, and he claimed an ex gratia payment of $500,000.
[22]Statement of Claim Proceeding Number S CI 1995 8172. See Exhibit JGC.6 to the affidavit of Jennifer Cox sworn 15 June 2015, [51].
On 27 May 1996, Master Wheeler struck out the Statement of Claim of Mr Lindsay. Leave was given to Mr Lindsay to serve a Further Amended Statement of Claim for ‘unfair dismissal only’. An internal email in the CUB file of 11 June 1996 noted: ‘The Master considered all material before him and concluded the only allegation not previously litigated was the assertion of unfair dismissal’.[23]
[23]See Exhibit JGC.7 and JGC.8 to the affidavit of Jennifer Cox sworn 15 June 2015.
On 30 July 1996, Master Wheeler struck out the Further Amended Statement of Claim and Mr Lindsay’s appeal against this order was dismissed by Batt J in the Practice Court on 12 August 1996.[24]
[24]See Attorney-General for the State of Victoria v Lindsay (Unreported, Supreme Court of Victoria, Kellam J, 16 July 1998), 6.
Mr Lindsay issued further Supreme Court proceedings, 4988 of 1996, against CUB claiming a lump sum entitlement of $664,000, based on what he claimed was 90 per cent of his pre-injury earnings to age 65, and aggravated damages of $200,000.
This further Supreme Court proceeding was a claim for damages again based on work accidents of 12 November 1984, 17 July 1987 and 11 November 1987. In his amended pleading, Mr Lindsay referred to the jury verdict of 1992 in the County Court proceedings and maintained that the award made by the jury concerning the 12 November 1984 accident was for pain and suffering damages only.[25] On 27 May 1996, Master Wheeler ordered this proceeding be dismissed pursuant to r 23.01 of the Supreme Court Rules (General Civil Procedure) Rules 2005 for abuse of process.
[25]See Exhibit JGC.12 to the affidavit of Jennifer Cox sworn 15 June 2015, [18].
Kellam J, in his judgment declaring Mr Lindsay a vexatious litigant, commented as follows:[26]
In my view, the evidence before me does establish a picture of ‘persistent attempts by [Lindsay] to argue questions which the Court had determined against him’ or indeed has already determined in his favour: (see Jones v Skyring (1992) 66 ALJR 810 at 814, Toohey J).
[26]Attorney-General for the State of Victoria v Lindsay (Unreported, Supreme Court of Victoria, Kellam J, 16 July 1998), 6.
In my opinion, the words of Kellam J well describe this most recent proposed claim by Mr Lindsay. The proposed claim is yet another attempt to re-litigate matters that have been resolved by a judgment in the County Court and, as such, is an abuse of process, its continuance would be vexatious and oppressive.[27]
[27]Christie v Baker [1996] 2 VR 582, 603 (Hayne JA).
Final considerations
Mr Lindsay submitted there was no longer a ‘once and for all rule’ in litigation and that what has occurred to him as a consequence of his negligently sustained injuries ‘could not have been foreseeable at the time of the 1992 County Court trial’. He submitted as an example that no-one could foresee that an entitlement to a pension could change from age 65 to 67.[28] Mr Lindsay relied upon the decision of the House of Lords in The Darley Main Colliery Company v Thomas Mitchell[29] both in connection with his submission concerning the once and for all rule and also to defeat any proposed limitation of actions defence by CUB. The Darley Main Colliery case concerned damage to houses and property. A subsidence in land occurred due to coal mining activity in 1868 and compensation was paid. In 1882, a further subsidence took place causing further damage to houses and property. The House of Lords considered the new subsidence was a new cause of action causing fresh damage. Lord Halsbury[30] distinguished this new cause of action and its ‘fresh damage’ from the requirement that there be recovery of all damages in the one cause of action:
No-one will think of disputing the proposition that for one cause of action you must recover all damages incident to it by law once and forever … and so of the more complex mechanism of the human frame, the damage is done in a railway accident, the whole machinery is injured, though it may escape the eye or even the consciousness of the sufferer at the time; the later stages of suffering are but the manifestations of the original damage done, and consequent upon the injury originally sustained.
[28]Transcript of Proceedings, T48.20 - 48.28 (Lindsay).
[29](1886) 11 App Cas 127. A copy is exhibited at DJL.017 to affidavit of David Lindsay sworn 4 June 2015.
[30]Ibid, 132-3.
The reasoning of Lord Halsbury is no different to that of Ashley JA that I have already referred to in Papercorp and his Honour’s statement of the settled law that one can sue once for injuries sustained by the negligent conduct of another and that it is ‘too bad’ if an unexpected physical or financial consequence later arises.[31]
[31]PapercorpPty Ltd v Nicolaou [2006] VSCA 143, [30].
This House of Lords authority relied upon by Mr Lindsay does not support the proposition that a new cause of action has arisen that would permit this application to proceed or, indeed, defeat the provisions of the Limitations of Action Act 1958.
Conclusion
It is apparent from these reasons I consider the proposed application to be a vexatious proceeding, an abuse of process of the court and a proceeding that is without reasonable grounds.[32]
[32]See the Act ss 3 and 52.
The application made by Mr Lindsay is refused.
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