Dissidomino v Butcher Paull & Calder (A Firm)

[2006] HCATrans 414

[2006] HCATrans 414

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P61 of 2005

B e t w e e n -

GUISEPPINA DISSIDOMINO BY HER NEXT FRIEND AND MOTHER MARIA ROSA DISSIDOMINO

Applicant

and

BUTCHER PAULL & CALDER (A FIRM)

Respondent

Application for special leave to appeal

GLEESON CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 AUGUST 2006, AT 12.26 PM

Copyright in the High Court of Australia

MR R.I. VINER, QC:   May it please the Court, I appear together with my learned junior, MR S.R. SIRETT, for the applicant.  (instructed by Hoffmans)

MR G.H. MURPHY, SC:   May it please the Court, I appear with MR S.F. POPPERWELL for the respondent.  (instructed by Pynt & Partners)

GLEESON CJ:   Yes, Mr Viner.

MR VINER:   Your Honours, this application concerns the distinction between the applicant, a disabled person who must sue by a next friend, and an action against the next friend in her personal capacity.  In respect of the action against the next friend in a personal capacity and the present proceedings, it is said that the disabled person is now estopped from pursuing the proceedings in the Supreme Court. 

There are, if I may summarise, three points, in our respectful submission, of special leave.  The first is that for the purposes of estoppel, can a party be regarded as a notional party in former proceedings when they were not a party to those proceedings, not brought on their behalf.  The second special leave point, in my submission, related, obviously, to the first, is the application of issue estoppel to different issues of fact in the separate proceedings between different parties.  The third special point relates to the application of an Anshun estoppel to a person not a party in both proceedings. 

The question before the Court of Appeal was whether the disabled person and the next friend in the two proceedings were different parties.  Her Honour Justice Wheeler, correctly, in our submission, found that they were separate and distinct parties.  That may be seen at page 83 of the application book in paragraph 20 and 21 of her Honour’s reasons.  She quite clearly and, as I say, correctly, in our respectful submission, found that the next friend being sued in the first proceedings was being sued in her personal capacity whereas the applicant in these proceedings necessarily suing by a next friend was a different party.

In the first proceedings the next friend was being sued for costs of an unsuccessful trial in the District Court of Western Australia, costs which she had not paid and for which she was personally liable.  In those proceedings, the next friend alleged that the solicitors had been negligent in advising her not to accept a proposed settlement.  Therefore, she said, that she had incurred the costs for which the solicitors were then suing when she ought not to have been liable for them had proper advice been given. 

As her Honour Justice Wheeler said at page 83 in paragraph 22, that finding by the Court of Appeal that they were different parties in the separate proceedings, was an end of the matter.  In our respectful submission, it should have been the end of the matter.  However, her Honour went on to consider whether the first proceedings by way of a defence, set‑off and counter‑claim by the next friend in her personal capacity was or could be regarded as having been brought on behalf of the disabled person, the reason being, so it was said, that the next friend in order to defeat the claim for costs had set up by way of defence and counter‑claim a claim for the amount of the settlement that she said she should have been advised to take, namely, an amount of $100,000. 

Now, her Honour Justice Wheeler at paragraph 22 said that the next friend in her own right had impermissibly raised the question of damages arising from the negligent advice not to accept the settlement.  Her Honour then discussed whether that claim of negligence could raise an equitable set‑off against the costs that were being claimed against the next friend.  Her Honour then considered whether it would have been possible in those first proceedings to have joined the disabled person as a party to them in the event that a finding had been made in favour of the next friend.

So her Honour concluded under rules of court that there could have been an application of joinder of the disabled person.  So her Honour concluded at paragraph 39 that the proceedings, whilst procedurally irregular because of the failure to name the plaintiff, that is, the disabled person, as a party in the cost proceedings, the costs action and the present proceedings should be characterised as proceedings between the same parties.

In our respectful submission, her Honour was wrong in the sense that the test of whether or not the same parties – there are the same parties in two sets of proceedings against which an estoppel can operate.  It is not enough to say they should be characterised as being the same parties.  In these circumstances, clearly the parties in the two proceedings were not the same and, in our submission, cannot be assumed to be the same on hypothetical events, namely, events which did not happen, that is, if there had been a finding in favour of the next friend in the cost proceedings.

There was a clear hypothetical question that was still outstanding, namely, had it been found that the solicitors had been negligent in advising against the settlement, was that an adequate defence to the claim for costs against the next friend in a personal capacity and what, if any, remedy may there have been by way of damages or otherwise that followed.  So, in our submission, the cost proceedings were just that.  It was a claim by the next friend in a personal capacity for relief against liability for the solicitor’s costs, no more and no less, and that was the basis upon which that action was fought.  So that, in our submission, identifies the first special point that ought to be considered by this Court.

The second is to do with issue estoppel.  It was argued that because a single alleged act of negligence was raised in the costs proceedings, although there were different acts of negligence alleged in the present Supreme Court proceedings, there was an identity of subject matter.  That may be seen in this way.  The negligence alleged in these Supreme Court proceedings was negligence in preparing the case for trial in two respects:  what was referred to as an Irrabeena letter and the absence of obtaining an MRI; and secondly, negligence in bringing the appeal by failure to bring an application to lead fresh evidence.

In the costs action the allegation was, as I have said, a failure to advise the client to accept a settlement.  Her Honour found that there was substantial similarity between the allegations.  In our respectful submission, there was not.  They are clearly distinct acts of negligence upon which clearly different facts would have to be found in order to find for or against those allegations.  Issue estoppel is estoppel against findings of fact or issues of fact being raised in second proceedings when there has been a finding on those issues of fact in an earlier proceeding.  That is not the case here.

Very clearly, the acts alleged in the first action to defeat the claim for costs against the next friend in a personal capacity are different acts of negligence alleged by the disabled person in the present Supreme Court proceedings.  For issue estoppel to succeed, as is clear on the authorities such as Blair v Curran, discussed amply in Anshun, the facts in respect of which estoppel can arise must be facts on the same matter as is the foundation of the decision.  If they are on the same matter, then the rule is that you cannot set up a situation where there can be inconsistent findings on those alleged facts.

The third special leave point, in my respectful submission, is to do with Anshun estoppel and the nature of it and the application of it to circumstances such as we have here.  I frame it in this way:  should or can Anshun estoppel be used against a disabled person who must sue by a next friend on the basis that the disabled person was notionally a party in an action brought against the next friend in their personal capacity.  In effect, this is what the Court of Appeal has held, that Anshun estoppel obligated the next friend in the action against her in her personal capacity to raise all matters which the disabled person, not a party to those proceedings, could raise alleging negligence against the solicitors.

That is the crux of the matter.  Is there an obligation?  Was there, in these circumstances, an obligation on the next friend when being sued in a

personal capacity to think of and raise any allegations that could be separately brought by the disabled person against the solicitors?  In our respectful submission, the Anshun principle does not operate so as to create that obligation, the effect of which would be, if it operated, to shut out the disabled person from litigating in her own interests as distinct from the interests of the next friend.  So that in the end if, as amply described in Anshun in the discussion of the nature of estoppel, in the costs action the traversable allegation against the next friend in her personal capacity was that she was personally liable for the costs of the solicitor.

Now, that traversable allegation does not arise in the proceedings which the disable person independently has brought in the Supreme Court and now the subject of the decision of the Court of Appeal and, therefore, in these proceedings in the Supreme Court there cannot be any inconsistent decision by the Supreme Court that is inconsistent with that traversable allegation which arose in the costs proceedings. 

For those reasons, may it please the Court, these three points that I have raised deserve to be considered by this Court.  May it please the Court.

GLEESON CJ:   Thank you, Mr Viner.  We do not need to hear you, Mr Murphy. 

The decision of the Court of Appeal of Western Australia turned in certain significant respects upon the particular facts and circumstances of the case, including an order of the court dated 1987, and the long and complex history of litigation extending back to 1987 in respect of events that occurred in 1962.  The case is not a suitable vehicle for the resolution of any issue of principle suitable to a grant of special leave to the Court and we are not persuaded that the interests of justice require such a grant.  The application is dismissed with costs.

AT 12.42 PM THE MATTER WAS CONCLUDED