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Donnellan v The Public Trustee

Donnellan v The Public Trustee

Case [2007] WASC 213 7 September 2007

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CHRISTINE ANNE DONNELLAN (By her next friends WALTER FRANCIS MARTINS and AUDREY CONSTANCE MARTINS joint plenary guardians and administrators) -v- THE PUBLIC TRUSTEE [2007] WASC 213

CORAM: NEWNES J

HEARD: 9 AUGUST 2007

DELIVERED : 7 SEPTEMBER 2007

FILE NO/S: CIV 2419 of 2004

BETWEEN: CHRISTINE ANNE DONNELLAN (By her next friends WALTER FRANCIS MARTINS and AUDREY CONSTANCE MARTINS joint plenary guardians and administrators)
Plaintiff
AND
THE PUBLIC TRUSTEE
Defendant
JACKSON MCDONALD
Third Party

Catchwords:

Practice and procedure - Earlier action brought against third party by plaintiff by defendant as next friend - Plaintiff's claim settled - Settlement approved by District Court under O 70 r 10 - Judgment giving effect to terms of settlement - Claim by plaintiff in these proceedings that defendant as next friend was negligent in settlement of the claim and in obtaining court approval - Application by defendant to stay the action as abuse of process - Whether present claim is collateral attack on earlier judgment - Whether an abuse of process - Relevant principles

Legislation:

Rules of the Supreme Court 1971 (WA), O 70 r 1, r 2, r 10

Result:

Application to stay action refused

Category: B

Representation:

Counsel:

Plaintiff:     Mr D M Bruns
Defendant:     Mr C S Bydder
Third Party                   :     No appearance

Solicitors:

Plaintiff:     Griffiths & Godecke
Defendant:     State Solicitor for Western Australia
Third Party                   :     No appearance

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

Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27
Benfield v Australian National Railways Commission (1992) 8 WAR 285
Cleary v Jeans [2006] NSWCA 9
D'Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Giannarelli v Wraith (1988) 165 CLR 543
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Kelley v Corston [1998] QB 686
McIlkenny v Chief Constable of West Midlands Police Force [1980] QB 283
Reichel v Magrath (1889) 14 App Cas 665
Rogers v The Queen (1994) 181 CLR 251
Secretary of State for Trade and Industry v Bairstow [2004] Ch 1
Walpole v Partridge & Wilson (a firm) [1994] QB 106
Walton v Gardiner (1993) 177 CLR 378
Wood v Public Trustee (WA) (1995) 14 WAR 251

NEWNES J: This is an application by the defendant seeking an order that certain claims made by the plaintiff be permanently stayed on the ground that they amount to a collateral attack on a judgment of the District Court of 6 August 1993 and are therefore an abuse of process.

The background

The plaintiff was involved in a motor vehicle accident in 1973. In 1977, she commenced proceedings in the District Court against the driver of the vehicle, claiming damages for personal injury. The conduct of the defence of the plaintiff's claim was assumed by the driver's insurer (the insurer).
On 15 April 1977, a certificate was issued by the defendant under s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Donnellan v The Public Trustee

Details

AGLC: Donnellan v The Public Trustee [2007] WASC 213
Case: [2007] WASC 213
Decision Date: 7 SEPTEMBER 2007

CaseChat Overview and Summary

The case of Donnellan v The Public Trustee involved a plaintiff, Donnellan, and the Public Trustee, who was acting as the next friend for Donnellan. The dispute centred around the settlement of an earlier claim brought by Donnellan against a third party. The settlement of this claim had been approved by the District Court. Donnellan now sought to hold the Public Trustee liable for negligence in the settlement process and in obtaining the court's approval. The Public Trustee applied to stay the proceedings, arguing that the current claim was an abuse of process and a collateral attack on the earlier judgment.

The central legal issue was whether the plaintiff's current claim against the Public Trustee constituted an abuse of process and if it was a collateral attack on the earlier judgment. The court had to determine if the present claim could proceed or if it should be stayed as an abuse of process. The court examined the principles governing abuse of process and collateral attacks on judgments, considering the circumstances of the case and the relationship between the earlier action and the present claim.

The court found that the present claim was not an abuse of process or a collateral attack on the earlier judgment. The court concluded that the plaintiff's claim was a direct action against the Public Trustee for negligence in the settlement process, which was distinct from the earlier claim against the third party. The court held that the plaintiff's right to seek redress for the alleged negligence was not precluded by the prior settlement and judgment. As such, the application to stay the action was refused. The plaintiff's claim against the Public Trustee for negligence would proceed to be determined on its merits.

Orders

Orders of the court

Application to stay action refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Donnellan v The Public Trustee [2007] WASC 213

Most Recent Citation

Bride v Shire of Katanning [2008] WASC 131

Cases citing this decision · 13 of 13 shown

Re Rules of the Supreme Court 1971 (WA)
[2023] WASC 477 Para 9

…92 - 393; Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Reichel v Magrath (1889) 14 App Cas 665; Donnellan v The Public Trustee [2007] WASC 213.…
Russell Consolidated Pty Ltd v Russell Noble Constructions Pty Ltd
[2021] WASC 155 Para 8

…judgment or order will therefore generally be less exacting than such a challenge in respect of a conviction.[73] [70] Donnellan v The Public Trustee [2007] WASC 213 [39]. [71] Batistatos [8]. [72] See Williams v Spautz (520). [73] Donnellan v The Public Trustee [39]; Batistatos [8]; Jago v District Court (NSW) (2…
Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd
[2018] WASC 145 Para 5

…ening a final hearing and requiring witnesses to be called, which is inimical to the rules of procedural fairness. [10] In Donnellan v Public Trustee [2007] WASC 213, Newnes J accepted a submission that a collateral attack by a plaintiff on a final decision of a court of competent jurisdiction made in proceedings…
LEGAL PROFESSION COMPLAINTS COMMITTEE and RAYNEY
[2016] WASAT 142 Para 4

…e Donnellan (By her next friends Walter Francis Martins and Audrey Constance Martins joint plenary guardians and administrators) v The Public Trustee [2007] WASC 213 ( Donnellan ) at [27][55] by Newnes J (as he then was))equally apply to the Tribunal.…
Frigger v Clavey Legal Pty Ltd [No 3]
[2015] WADC 21 Para 5

…hat CAT ought be wound up. Such a collateral attack, it is submitted, amounts to an abuse of process and is not permitted: Donnellan v Public Trustee [2007] WASC 213 [42].…
That's Entertainment (WA) Pty Ltd v Commissioner of Police
[2013] WASC 75

…4 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 Craig Williamson Pty Ltd v Barrowcliff [1915] VLRF 450 Donnellan v The Public Trustee [2007] WASC 213 Enever v The Queen (1906) 3 CLR 969 Farah v Say-Dee (2007) 230 CLR 89 Hancock v Executive Director of Public Health [2008] WASC 224 Hardcastle v Comm…
Bennett v The State of Western Australia
[2012] WASCA 70

…State of Western Australia [2006] WASCA 162 Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 Donnellan v Public Trustee [2007] WASC 213 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437 Hamersley Iron Pty Ltd v N…
Moondancer Holdings Pty Ltd v Navarac Pty Ltd
[2011] WASC 250

…ew Investments Pty Ltd v Dean Investments Pty Ltd (Unreported, NTSC, 18 December 1997) Cameron v McBain [1948] VLR 245 Donnellan v The Public Trustee [2007] WASC 213 Espanol Holdings Pty Ltd v Banning [2000] WASC 192 Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 Norilya Mineral…
Hardingham v Chief Executive Officer, Department for Child Protection
[2011] WASC 86 Para 10

…be regarded as evidence that that person did commit that offence ‑ see Perth Mint v Mickelberg (No 2) (1985) WAR 117 and Donnellan v Public Trustee [2007] WASC 213, [27] ‑ [55], but that an acquittal or dismissal of the charge or its abandonment does not prove anything ‑ Lancee v Willert [2008] WASCA 120 [55], [66…
Vella v Michael John Bowden of Cannon Bowden & Co
[2011] WASC 78 Para 1

…The principle was conveniently explained by Newnes J (as he then was) in Donnellan v Public Trustee [2007] WASC 213, where his Honour canvassed it in some detail, in reasons for decision, at between [27] to [55]. His Honour's examination scrutinised the leading case authorities, in particular the observations by V…
Donnellan v The Public Trustee [No 2]
[2010] WASC 214 Para 1

…l attack against the orders of Kennedy DCJ of 6 August 1993. His Honour delivered his reasons on 7 September 2007, see Donnellan v The Public Trustee [2007] WASC 213, concluding that he was not persuaded as to the correctness of that submission, or at least as to the appropriateness of its acceptance, at the inter…
Zollo v National Australia Bank Ltd
[2009] SASC 38 Para 6

…pproved by a Young CJ in Eq in Cleary v Jeans [65] and by Newnes J in Donnellan v The Public Trustee .[66] [65] [2006] NSWCA 9 at [62] – [63]. [66] [2007] WASC 213 at [40] – [42].…
Bride v Shire of Katanning
[2008] WASC 131 Para 1

…‑ 393; Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Reichel v Magrath (1889) 14 App Cas 665; Donnellan v The Public Trustee [2007] WASC 213.…

View all 13 citing cases →

Cases cited in this decision · 15 of 15 shown

Batistatos v Roads and Traffic Authority of New South Wales
[2006] HCA 27 Para 2

…o be supported by the observation by Gleeson CJ, Gummow, Hayne and Crennan JJ (at [8]) in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, that while the inherent power identified by Lord Diplock in Hunter's case applies to both civil and criminal proceedings, it does so with somewhat d…
Cleary v Jeans
[2006] NSWCA 9 Para 4

…That passage was referred to with approval by the Court of Appeal of New South Wales in Cleary v Jeans [2006] NSWCA 9, albeit the court noted that it must be understood subject to the decisions of the High Court in D'Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 and Giannarelli v Wraith (1988) 165 CLR 543,…
D'Orta-Ekenaike v Victoria Legal Aid
[2005] HCA 12 Para 4

…2006] NSWCA 9, albeit the court noted that it must be understood subject to the decisions of the High Court in D'Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 and Giannarelli v Wraith (1988) 165 CLR 543, in relation to advocates' immunity. That qualification is not relevant for present purposes.…
Rogers v The Queen
[1994] HCA 42 Para 7

…In Rogers v The Queen (1994) 181 CLR 251, Mason CJ observed that the decisions in Hunter v Chief Constable of the West Midlands Police and Walton v Gardiner , indicated that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, se…
Walton v Gardiner
[1993] HCA 77 Para 1

…In Walton v Gardiner (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ (at 392 ‑ 393) observed that the inherent jurisdiction of a superior court to stay its proceedings on the grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer…
Giannarelli v Wraith
[1988] HCA 52 Para 4

…it must be understood subject to the decisions of the High Court in D'Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 and Giannarelli v Wraith (1988) 165 CLR 543, in relation to advocates' immunity. That qualification is not relevant for present purposes.…
[1982] AC 529
[1982] AC 529 Para 4

…f the parties opposed to the plaintiff in the two proceedings are different. Counsel referred to Hunter v Chief Constable of the West Midlands Police [1982] AC 529 and Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615.…
(1889) 14 App Cas 665
(1889) 14 App Cas 665 Para 5

…Lord Diplock went on to refer to the well known case of Reichel v Magrath (1889) 14 App Cas 665, saying: The passage from Lord Halsbury LC's speech in Reichel v Magrath 14 App Cas 665 at 668 deserves repetition here in full: '… I think it would be a scandal to the administration of justice if, the same question having b…
[2002] 1 AC 615
[2002] 1 AC 615 Para 4

…ings are different. Counsel referred to Hunter v Chief Constable of the West Midlands Police [1982] AC 529 and Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615.…
Reichel v Magrath
(1889) 14 AC 665 Para 5

…Lord Diplock went on to refer to the well known case of Reichel v Magrath (1889) 14 App Cas 665, saying: The passage from Lord Halsbury LC's speech in Reichel v Magrath 14 App Cas 665 at 668 deserves repetition here in full: '… I think it would be a scandal to the administration of justice if, the same question having been…
[1994] QB 106
[1994] QB 106 Para 9

…In Walpole v Partridge & Wilson (a firm) [1994] QB 106, Ralph Gibson LJ said: The decision of their Lordships in Hunter's case …, however, was, in my judgment not that the initiation of such proceedings is necessarily an abuse of process but that it may be. The question whether it is so clearly an abuse of proce…
[1998] QB 686
[1998] QB 686 Para 5

…e, the approval of the court, fall within judgments which are the subject of the rule against collateral attack. Counsel referred to Kelley v Corston [1998] QB 686 and Wood v Public Trustee (WA) (1995) 14 WAR 251.…
Lord Halsbury LC in Reichel v Magrath
14 App Cas 665 Para 5

…Lord Diplock went on to refer to the well known case of Reichel v Magrath (1889) 14 App Cas 665, saying: The passage from Lord Halsbury LC's speech in Reichel v Magrath 14 App Cas 665 at 668 deserves repetition here in full: '… I think it would be a scandal to the administration of justice if, the same question h…
[1980] QB 283
[1980] QB 283 Para 8

…viously been finally decided by a court of competent jurisdiction is an abuse of process: McIlkenny v Chief Constable of West Midlands Police Force [1980] QB 283, 333; it is not necessarily an abuse.…
[2002] AC 616
[2002] AC 616 Para 1

…I do not understand anything subsequently said in the House of Lords in that case (reported at [2002] AC 616, 665 et seq) to be in any relevant sense inconsistent with the principles applicable to an abuse of process by collateral attack as described by the Court of Appeal. In the House of Lords, Lord Browne‑Wil…

Legislation cited in this decision · 3

Matrimonial Causes Act 1973 c.18
1 mention (from Para 8)
Public Trustee Act 1941 (WA)
1 mention (from Para 2)
Stuart v The Queen
1 mention (from Para 8)