Field Camp Services Pty Ltd v Green
[2012] FMCA 85
•2 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FIELD CAMP SERVICES PTY LTD v GREEN | [2012] FMCA 85 |
| CONSUMER PROTECTION – Alleged misleading and deceptive conduct – hire of transportable accommodation and camp units. |
| PRACTICE AND PROCEDURE – Application for a stay – whether same facts as alleged in other proceedings – Anshun estoppel – abuse of process. |
| PRACTICE AND PROCEDURE – Affidavit – whether document to be used in conjunction with affidavit – whether document to be annexed to affidavit. |
| ESTOPPEL – Anshun estoppel – requirement for identity of parties – privy. |
| Civil Judgments Enforcement Act 2004 (WA) Competition and Consumer Act 2010 (Cth), ss.6(2)(h) and (3)(a), 75B, 82, 87, Schedule 2, s.18 Corporations Act 2001 (Cth), ss.109X(1)(a), 459C(2), 459P Evidence Act 1995 (Cth), ss.56(2), 75 Fair Trading Act 1987 (WA), ss.10, 77, 79 Federal Magistrates Court Rules 2001 (Cth), rr.14.10, 15.28 Trade Practices Act 1974 (Cth), ss.6(2)(h) and (3)(a), 52, 75B Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth), Schedule 7, Item 6 |
| Ann Street Mezzanine Pty Ltd (in liq) v Beck & Ors (2009) 175 FCR 532; [2009] FCA 333 Bradford & Bingley Building Society v Seddon (Hancock and others, t/a Hancocks (a firm), third parties) [1999] 4 All ER 217 Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 Clegg v Abel (1898) 14 WN(NSW) 131 Dale & Ors v Western Australia & Ors (2011) 191 FCR 521; [2011] FCAFC 46 Dickson v Gallagher & Anor [1985] ATPR 40-550 DP World Australia v Fremantle Port Authority [2009] WASCA 16 Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers and Managers Appointed – In Liquidation) & Ors (1993) 43 FCR 510 Egglishaw v Australian Crime Commission (2007) 164 FCR 224; [2007] FCAFC 183 Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118 Foodco Group Pty Ltd & Anor v Northgan Pty Ltd & Anor (1998) 83 FCR 356 Fortron Automotive Treatments Pty Ltd v Jones & Ors (No.4) (2011) 254 FLR 303; [2011] FMCA 854 Gryst v Dromana Estate Limited [2008] FCA 1148 Lee & Ors v Minister for Immigration & Anor [2006] FMCA 480 Ling v Commonwealth (1996) 68 FCR 180 Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586; [2005] FCAFC 41 Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 Re Australasian Memory Pty Ltd and Corporations Law, Brien and Another v Australasian Memory Pty Ltd and Another (1997) 149 ALR 393 Rahme v Commonwealth Bank of Australia (unreported, Court of Appeal, New South Wales, 20 December 1991) Ramsay v Pigram (1968) 118 CLR 271 Redowood Pty Ltd v ASX-Perpetual Registrars Ltd (2006) 57 ACSR 256; [2006] NSWSC 334 Rippon v Chilcotin Pty Ltd & Ors (2001) 53 NSWLR 198; [2001] NSWCA 142 Site Accommodation Pty Ltd v Field Camp Services Pty Ltd & Anor (Unreported, District Court of Western Australia, CIV 346 of 2010, O’Neal DCJ, 10 September 2010) Spalla v St George Motor Finance Ltd (No.6) [2004] FCA 1699 State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 Tanning Research Laboratories Inc. v O’Brien (1990) 169 CLR 332 Tradesman Technologies Pty Ltd v Ameduri [2010] FMCA 1011 Walton v Gardiner (1993) 177 CLR 378 Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722; [2004] FCA 51 Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10; [2004] FCAFC 242 Yat Tung Investment Co Ltd v Dao Heng Bank Ltd & Anor [1975] AC 581 |
| JD Heydon, Cross on Evidence, 8th Australian Edition (Chatswood: LexisNexis Butterworths, 2010) PW Young et al, On Equity (Sydney: Law Book Co, 2009) The Laws of Australia (Thompson Reuters, Legal Online) |
| Applicant: | FIELD CAMP SERVICES PTY LTD |
| Respondent: | PETER JAMES GREEN |
| File Number: | PEG 145 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 9 August 2011 |
| Date of Last Submission: | 9 August 2011 |
| Delivered at: | Perth |
| Delivered on: | 2 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Rumsley |
| Solicitors for the Applicant: | Alan Rumsley |
| Counsel for the Respondent: | Mr B Wheatley |
| Solicitors for the Respondent: | Mossensons |
ORDERS
That proceedings in matter PEG 145 of 2011 be stayed pending further order of this Court.
That the respondent’s application for security for costs be adjourned sine die.
Costs reserved.
That there be liberty to apply on five days’ notice.
That the matter be adjourned to a directions hearing at 10.00am on 26 March 2012.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 145 of 2011
| FIELD CAMP SERVICES PTY LTD |
Applicant
And
| PETER JAMES GREEN |
Respondent
REASONS FOR JUDGMENT
Introduction
At the remote Rudall River in the East Pilbara region of north-western Australia, a site camp was established with hired transportable accommodation and camp units.[1] A dispute concerning payment for, and contractual relations in relation to, the hire of the Units has given rise to this litigation.
[1] “the Units”.
The current litigation
The respondent, Peter James Green,[2] has filed an application in a case seeking orders that:
a)the application of the applicant, Field Camp Services Pty Ltd,[3] be stayed;
b)Field Camp Services give security for Mr Green’s costs of the application in the sum of $10,000; and
c)Field Camp Services pay the costs of the application in a case.
[2] “Mr Green”.
[3] “Field Camp Services”.
The application seeks:
a)damages under ss.82 and 87 of the Competition and Consumer Act 2010 (Cth)[4] for alleged misleading or deceptive conduct;
b)further, and in the alternative, damages under ss.77 and 79 of the Fair Trading Act 1987 (WA)[5] in respect of the same alleged conduct; and
c)further, and in the alternative, damages for conduct which is alleged to have constituted an intentional interference with contractual relations between Field Camp Services and Cameco Australia Pty Ltd,[6] in relation to the sub-hire by Field Camp Services to Cameco of the Units.[7]
[4] “CC Act”. Although the claim in this Court has been brought under the CC Act, it probably ought to be brought under the Trade Practices Act 1974 (Cth) (“TP Act”), which remains in force for acts or omissions prior to the commencement of the CC Act on 1 January 2011: Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth), Schedule 7, Item 6. If it becomes necessary, it is a matter probably curable by amendment. For the sake of convenience these Reasons for Judgment reflect the terms of the claim as made, and refer to the relevant provisions of the CC Act. See also para.89 and fn.141 below.
[5] “FT Act”.
[6] “Cameco”.
[7] “Cameco Contract”.
Background facts – litigation history
On 8 February 2010 Site Accommodation Pty Ltd,[8] of which Mr Green is a director, filed a writ in the District Court of Western Australia[9] against Field Camp Services and Remote Camps Australia Pty Ltd[10] claiming for amounts due for the hire of the Units. A statement of claim[11] was filed on 25 March 2010.[12]
[8] “Site Accommodation”.
[9] “District Court”.
[10] “Remote Camps”.
[11] “Statement of Claim”.
[12] “District Court Action”.
On 5 July 2010 a Deputy Registrar of the District Court dismissed Site Accommodation’s application for summary judgment,[13] and granted Field Camp Services leave to defend Site Accommodation’s claim.
[13] “Deputy Registrar’s Decision”.
On 10 September 2010 the District Court, on appeal from the Deputy Registrar’s Decision, allowed Site Accommodation’s claim against Field Camp Services in the sum of $90,354.61.[14] On 22 September 2010, the District Court ordered that there be summary judgment against Field Camp Services for $90,354.61, plus interest of $3,460.05, plus costs.[15] The District Court was not, however, satisfied that Field Camp Services had a counterclaim against Site Accommodation for an alleged intentional interference with contractual relations in relation to the Cameco Contract.[16]
[14] Site Accommodation Pty Ltd v Field Camp Services Pty Ltd & Anor (Unreported, District Court of Western Australia, CIV 346 of 2010, O’Neal DCJ, 10 September 2010) (“Site Accommodation”) at page 13 per O’Neal DCJ. The judgment in Site Accommodation does not bear a media neutral citation and does not have numbered paragraphs. Therefore, references to Site Accommodation in this judgment are to the page numbers of the judgment.
[15] Affidavit of Peter James Green, sworn 8 July 2011, Annexure C (“Mr Green’s Affidavit”).
[16] Site Accommodation at pages 9-12 per O’Neal DCJ.
On 30 September 2010 Field Camp Services appealed Site Accommodation.[17] Site Accommodation applied for security for costs in respect of the Appeal, and Field Camp Services countered with an application for a suspension order.[18]
[17] Mr Green’s Affidavit, para.16 (“Appeal”).
[18] Mr Green’s Affidavit, para.17.
On 21 December 2010 Site Accommodation’s costs of the District Court Action against Field Camp Services were taxed and allowed at $10,169.22.[19]
[19] Mr Green’s Affidavit, para.12.
On 25 May 2011 the Supreme Court of Western Australia, Court of Appeal[20] delivered judgment in relation to the applications for security for costs and for a suspension order. In so doing the Court of Appeal observed as follows:
18. On the necessarily limited material before me, there would seem to be significant difficulties in the appellant’s [Field Camp Services’] path in establishing that it has an arguable defence to the respondent’s [Site Accommodation’s] claim.
19. In the first place, on the affidavit material the appellant’s claim would appear to be built on quite slender foundations. As the evidence currently stands, the allegation of wrongful interference appears to be based solely upon an inference the appellant says should be drawn from the statement in the respondent’s notice of termination that the transportable units were to remain on site for C’s [Cameco’s] use, and a telephone conversation on 21 January 2010 between Mr Browne, of the appellant, and a representative of C in which C refused the appellant’s proposal to provide replacement transportable units. In addition, whether or not C was in fact in breach of its contract with the appellant in refusing to accept replacement units must depend upon a consideration of the terms of the contract between C and the appellant. The contract was not before me. I note, however, that from what I was told from the bar table, it appears that it was a monthly contract, terminable on one month’s notice. For present purposes, I accept, however, that it is arguable the primary judge erred in making a finding that the appellant was not in a position to provide replacement units and that, upon the termination of the contract with the respondent, the appellant would inevitably have been in breach of its contract with C.
20. Secondly, there is the question of whether the appellant would be entitled to set-off the damages claimed (if made out) against the arrears of rent. It does not appear to be at all clear that an equitable set-off would arise. That is because, put broadly, it is not clear that the appellant’s claim directly relates to or impeaches the respondent’s claim: see, for instance, Lord v Direct Acceptance Corporation Ltd (Receiver and Manager Appointed) (In Liq) (1993) 32 NSWLR 362, 367; and generally Meagher RP, Heydon JD & Leeming MJ, Meagher, Gummow and Lehane’s Equity: Doctrines & Remedies (4th ed, 2002), 37-045. Moreover, the contract between the appellant and the respondent contains a provision (cl 7(f)) which arguably precludes reliance by the appellant on a set-off. But having said that, these are not matters which it is appropriate to attempt to resolve on an application of this nature.
21. In the end, while I have reservations about the merits of the appeal, for the purposes of this application I am not prepared to conclude that the appeal is without any merit.
[20] “Court of Appeal”.
On 10 June 2011 the Court of Appeal ordered Field Camp Services to provide security for costs of the Appeal in the sum of $12,000, and that subject to Field Camp Services paying $100,523.83, being the total of the judgment debt exclusive of interest, the orders made in the District Court Action be suspended.[22]
[22] Mr Green’s Affidavit, para.21 and Annexure E.
Field Camp Services has not paid to Site Accommodation the sum payable under the judgment and orders in Site Accommodation. Despite applications by Site Accommodation under the Civil Judgments Enforcement Act2004 (WA),[23] Site Accommodation has not been able to recover the judgment debt from Field Camp Services.[24]
[23] “CJE Act”.
[24] Mr Green’s Affidavit, para.15. See para.27 below as to the admissibility of this paragraph.
Objections to evidence
The application in a case is supported by Mr Green’s Affidavit. There are various objections to Mr Green’s Affidavit made by Field Camp Services which are dealt with hereunder.
The second and third sentences of paragraph 3, and the whole of paragraph 4 of Mr Green’s Affidavit, are objected to. Those paragraphs deal with the failure of Mr Browne, a director of Field Camp Services, to reveal a current residential address in Western Australia in any papers filed in any proceedings in any court in Western Australia, and the fact that Mr Browne gives an address which is a post office box in the Perth Business Centre. It is also said that Site Accommodation’s solicitors attempted to serve Mr Browne with the writ in the District Court Action at his last known residential address in Western Australia, but were unable to do so. A process server’s report is annexed to Mr Green’s Affidavit.
The second and third sentences of paragraph 3 to Mr Green’s Affidavit which deal with Mr Browne’s address are irrelevant as Mr Browne is not a party to these proceedings. Moreover, the registered address of Field Camp Services is set out in Mr Green’s Affidavit, and in Annexure F – a company search for Field Camp Services – to Mr Green’s Affidavit. That is all that is required for the purposes of service, as service may be effected by post at the registered office of a corporation.[25] The objection is therefore upheld, and the second and third sentences of Mr Green’s Affidavit will be struck out as inadmissible.[26]
[25] Corporations Act 2001 (Cth), s.109X(1)(a) (“Corporations Act”).
[26] Evidence Act 1995 (Cth), s.56(2) (“Evidence Act”).
Paragraph 4 of Mr Green’s Affidavit deals solely with the question of Mr Browne’s residential address. Mr Browne is not a party to the action, and, as set out above, Field Camp Services’ registered address is known to Mr Green, which is all that is required for the purposes of these proceedings. The evidence in paragraph 4 of Mr Green’s Affidavit is irrelevant, and, therefore, inadmissible.[27] The objection is therefore upheld, and paragraph 4 of Mr Green’s Affidavit will be struck out.
[27] Evidence Act, s.56(2).
Paragraph 7 of Mr Green’s Affidavit relates to the entry of summary judgment in the District Court Action against the second defendant, Remote Camps Australia, and is objected to on the basis that it is irrelevant because Remote Camps is not a party to these proceedings. The evidence is irrelevant and, therefore, inadmissible.[28] The objection is therefore upheld, and paragraph 7 of Mr Green’s Affidavit will be struck out.
[28] Evidence Act, s.56(2).
Paragraphs 10 and 11 of Mr Green’s Affidavit are objected to. Those paragraphs relate to the issue of a statutory demand by Site Accommodation’s solicitors served at the registered office of Field Camp Services for $93,814.66, being the judgment sum plus interest, to which there was no response. The objection is that the evidence is irrelevant because as at 24 December 2010 any failure to rely upon the statutory demand could not be relied upon, citing the Federal Court judgment in Gryst v Dromana Estate Limited.[29]
[29] [2008] FCA 1148 at para.13 per Finn J (“Gryst”).
Gryst is authority for a very narrow proposition, namely, that a presumption of insolvency only arises, if, in the period of three months prior to the date of a winding-up application under s.459P of the Corporations Act, a corporation served with a statutory demand fails to comply with that statutory demand.[30] In Gryst, the date for compliance with the statutory demand preceded the three month period prior to the date of the winding-up application by almost three months.[31] Consequently, Mr Gryst was unable to rely on the presumption of insolvency in prosecuting his winding-up application because the corporation had not failed to comply with a statutory demand within the relevant period.[32]
[30] Corporations Act, s.459C(2)(a).
[31] Gryst at paras.12-13 per Finn J.
[32] Gryst at para.13 per Finn J.
The narrow point decided in Gryst is not in issue in these proceedings. What is said by Site Accommodation is that the statutory demand was not responded to. The failure to respond to a statutory demand might give rise to a presumption of insolvency if the circumstances required by s.459C(2)(a) of the Corporations Act existed. However, that is not in issue in this case. One matter that may be in issue is that the judgment debt has not been paid. The failure to respond to the statutory demand may be related to the failure to pay the judgment debt, which is a fact relevant to whether or not security for costs ought to be awarded, irrespective of a corporation’s solvency status.
Paragraph 10 of Mr Green’s Affidavit is also objected to on the basis that it refers to a document, namely, the statutory demand, which is not annexed.
Rule 15.28(1) of the Federal Magistrates Court Rules 2001 (Cth)[33] provides that:
[33] “FMC Rules”.
(1) A document to be used in conjunction with an affidavit must be annexed to the affidavit.
Rule 14.10(1) of the FMC Rules is also relevant, and provides that:
(1) If a document or affidavit filed by a party refers to another document, another party may request the party in writing for a copy of the document or to produce it for inspection.
while the means by which:
a)a copy of the document may be inspected; or
b)a claim of privilege or non-possession can be made,
is dealt with under r.14.10(2) of the FMC Rules.
The FMC Rules therefore draw a distinction between a document which is to be used in conjunction with an affidavit and a document referred to in an affidavit. A document which is merely referred to in an affidavit need not be annexed to the affidavit, but another party may request that a copy of the document be provided or that it be produced for inspection.
The point of paragraphs 10 and 11 of Mr Green’s Affidavit is that Field Camp Services did not respond to the statutory demand. There is no dispute that the statutory demand issued, and the other basis for objection to paragraph 10 of Mr Green’s Affidavit considered above, impliedly concedes the existence of the statutory demand. It also does not appear to be in issue that the statutory demand was not, in fact, responded to.
In this case, Mr Green’s Affidavit merely refers to the statutory demand, and does not seek to use it in conjunction with the affidavit. There was, therefore, no need for the statutory demand to be annexed to the affidavit. The evidence in paragraphs 10 and 11 is otherwise relevant to the issue of security for costs. The objections to paragraphs 10 and 11 of Mr Green’s Affidavit are therefore dismissed.
The whole of paragraph 13 of Mr Green’s Affidavit is objected to on the basis of relevance. Paragraph 13 of Mr Green’s Affidavit asserts that Site Accommodation recovered amounts due from Remote Camps after issuing a debt appropriation order against a third party. Remote Camps is not a party to these proceedings, and therefore the evidence is irrelevant, and, therefore, inadmissible.[34] The objection is therefore upheld, and paragraph 13 of Mr Green’s Affidavit will be struck out.
[34] Evidence Act, s.56(2).
The whole of paragraph 15 of Mr Green’s Affidavit is objected to. Paragraph 15 of Mr Green’s Affidavit asserts that Site Accommodation has not been able to recover the sum of $103,983.88 from Field Camp Services in spite of applications by Site Accommodation under the CJE Act. The objection is that the paragraph is conclusionary, hearsay and irrelevant. Whether or not the judgment debt amount has been recoverable is a question of fact, and is not conclusionary. Nor it is hearsay, as Mr Green is in the position, as a director of Site Accommodation, to say whether or not the judgment debt sum has been recovered. The paragraph is not irrelevant because whether or not the judgment debt has been paid may be relevant to an assessment of security for costs, or more particularly, whether security for costs ought to be ordered. The objection to paragraph 15 of Mr Green’s Affidavit is therefore dismissed.
The whole of paragraph 18 of Mr Green’s Affidavit is objected to. Paragraph 18 of Mr Green’s Affidavit asserts that on Field Camp Services’ application for a suspension order in the Court of Appeal, Site Accommodation contended that Field Camp Services should be ordered to pay the judgment debt into court or to Site Accommodation’s solicitors. The objection is that paragraph 18 of Mr Green’s Affidavit is both hearsay and irrelevant. The Court agrees that paragraph 18 of Mr Green’s Affidavit is irrelevant. The argument put to the Court of Appeal is irrelevant as the judgment of the Court of Appeal is before the Court, and the submissions made to the Court of Appeal do not assist in determining the issues in this matter. The objection to paragraph 18 of Mr Green’s Affidavit is therefore upheld on the basis that it is irrelevant, and therefore, inadmissible.[35] Paragraph 18 of Mr Green’s Affidavit will therefore be struck out.
[35] Evidence Act, s.56(2).
The whole of paragraph 20 of Mr Green’s Affidavit is objected to on the basis that it is comment on a document, and that the document speaks for itself. Paragraph 20 of Mr Green’s Affidavit sets out an observation made by the Court of Appeal in the judgment in Field Camp Services. That observation is contained in Annexure D to Mr Green’s Affidavit. The objection is a valid one, as the judgment in Field Camp Services does speak for itself, and therefore paragraph 20 of Mr Green’s Affidavit is unnecessary, and will be struck out.
The whole of paragraphs 23 and 24 of Mr Green’s Affidavit are objected to. Those paragraphs of Mr Green’s Affidavit assert that Field Camp Services’ application in this Court arises out of the same facts as alleged in the District Court Action, and that the application in this Court should therefore be stayed on the ground of Anshun estoppel, or as an abuse of process. These paragraphs are objected to on the basis that they are conclusionary statements without foundation, and also opinion. The objections are valid as both paragraphs express a conclusion with respect to the ultimate issue before the Court. Paragraphs 23 and 24 of Mr Green’s Affidavit will therefore be struck out.
The whole of paragraph 29 of Mr Green’s Affidavit is objected to. Paragraph 29 of Mr Green’s Affidavit indicates that he has been advised by his solicitors that the costs of the application are likely to exceed $10,000. The objection is that the evidence is hearsay and is a conclusionary statement without foundation. The evidence is hearsay, but is admissible under the interlocutory proceedings exception for hearsay, as evidence of the source of the hearsay is adduced.[36] The objection is therefore dismissed.
[36] Evidence Act, s.75.
Mr Green objected to the lateness of the objections, which were filed the day before the hearing. There were no orders with respect to objections to affidavits, and therefore the objections cannot, in a formal sense, be late. Nor can they literally be late because there is nothing to prevent a party from objecting to paragraphs, or parts of paragraphs, in an affidavit sought to be tendered in proceedings, at the time of tender of the affidavit. The objection by Mr Green, on the basis of lateness, to Field Camp Services’ objections to Mr Green’s Affidavit, are therefore dismissed.
The bases for the application for a stay
The application in a case seeks a stay of the application on the following bases:
a)first, that the application arises out of the same facts as those alleged in the District Court Action;
b)second, that an Anshun estoppel arises because it is unreasonable for Field Camp Services to now bring these proceedings when the same or similar issues of fact and law were raised by Field Camp Services in the District Court Action; and
c)third, the application is an abuse of process because it seeks to raise the same issues that have already been raised in the District Court Action, and have them determined differently by this Court.
Consideration
The same facts
Mr Green alleges that the application to this Court arises out of the same facts as those alleged in the District Court Action.
Field Camp Services asserts that:
a)the District Court Action involved a claim by Site Accommodation against Field Camp Services for a debt arising from the hire of the Units;[37]
b)in the District Court Action it was alleged that “pursuant to agreements made between the parties between September 2009 and January 2010, various accommodation and other units were provided. The statement of claim describes 16 separate invoices during this period...”;[38]
c)in the District Court Action, Site Accommodation “applied for summary judgment. The application was refused by a deputy registrar of the District Court who granted [Field Camp Services] unconditional leave to defend the claim. [Site Accommodation] appealed to the primary judge who upheld the appeal, set aside the decision of the deputy registrar, and gave judgment for [Site Accommodation]”;[39]
d)Field Camp Services filed an affidavit of Gregory Browne sworn 2 June 2010[40] in the District Court Action, which raised facts that went to a claim that Field Camp Services had against Site Accommodation, for alleged intentional interference with contractual relations, in relation to the Cameco Contract, to be raised as a counterclaim and defence of set-off;[41]
e)because the District Court entered summary judgment for Site Accommodation, Field Camp Services has not formally pleaded in the District Court Action by way of defence and counterclaim, or otherwise;
f)Field Camp Services has filed the Appeal; and
g)Site Accommodation has summary judgment on a claim for monies owing for hire of the Units in the District Court Action in which no defence or counterclaim were filed. Thus, the matters that form the subject of these proceedings, or their factual substratum, are not matters before the District Court, or the subject of the District Court Action, even leaving aside the issue that Mr Green is not a party to the District Court Action.
[37] Site Accommodation at page 2 per O’Neal DCJ.
[38] Site Accommodation at page 3 per O’Neal DCJ (“Hire Agreements”).
[39] Field Camp Services at para.2 per Newnes JA.
[40] “Mr Browne’s Affidavit” (which is Annexure A1 to Mr Green’s Affidavit).
[41] Site Accommodation at page 6 per O’Neal DCJ; Mr Browne’s Affidavit at para.34.
The Statement of Claim in the District Court Action is not in evidence before the Court. It is therefore necessary to look to the judgments in Site Accommodation, and to a lesser extent, Field Camp Services, to ascertain the facts and issues in the District Court Action. In summary, they appear to be as follows:
a)that Site Accommodation is in the business of supplying, leasing and installing transportable units for the use of mining and other operations at sites throughout Western Australia;[42]
b)Field Camp Services (who are one of two defendants in the District Court Action) are in the business of providing camps for mining and exploration companies in remote parts of Australia;[43]
c)until about 20 January 2010, Site Accommodation provided Field Camp Services with the Units for use in their business;[44]
d)that Mr Greg Browne, on behalf of Field Camp Services, ordered equipment from Site Accommodation from time to time;[45]
e)that under the Hire Agreements made between Site Accommodation and Field Camp Services between September 2009 and January 2010 the Units were provided, as described in 16 separate invoices during that period, for a total amount of $103,092;[46]
f)that Field Camp Services failed to pay amounts due under the Hire Agreements;[47]
g)that Site Accommodation gave a notice of termination[48] on 20 January 2010 terminating the Hire Agreements;[49] and
h)Site Accommodation claimed $103,092 against Field Camp Services for the hire of the Units.[50]
[42] Site Accommodation at page 2 per O’Neal DCJ.
[43] Site Accommodation at page 2 per O’Neal DCJ.
[44] Site Accommodation at page 2 per O’Neal DCJ.
[45] Site Accommodation at page 3 per O’Neal DCJ.
[46] Site Accommodation at page 3 per O’Neal DCJ.
[47] Site Accommodation at page 3 per O’Neal DCJ.
[48] “Notice of Termination”.
[49] Site Accommodation at page 3 per O’Neal DCJ.
[50] Site Accommodation at page 2 per O’Neal DCJ.
The District Court considered:
a)the general conditions upon which it was argued that Field Camp Services had ordered the Units from Site Accommodation;
b)the provisions of clause 7 of the Hire Agreements dealing with hire rates which makes provision for invoicing, minimum hire periods of one month, payment of outstanding monies on termination, and in clause 7(f) provides that:
The customer must not setoff any amounts owed to Site Accommodation whatsoever.
c)clause 16.2 of the Hire Agreements which provides that, in the event of default, Site Accommodation may terminate Field Camp Services’ right to possession of the goods by notice in writing to Field Camp Services;
d)clause 17 of the Hire Agreements which provides that upon expiration or sooner determination by Site Accommodation, Field Camp Services is obliged at its own expense to immediately deliver up the goods (in this case, the Units) as directed by Site Accommodation;
e)evidence led by Site Accommodation which acknowledged that credit ought to be given to Field Camp Services for invoices from the time that Site Accommodation began to charge Cameco for the Units, that is, from 2 February 2010, which meant that Field Camp Services was given credit for five days of hire charges for each of the four units hired from Site Accommodation, thus reducing Site Accommodation’s claim against Field Camp Services to $99,028.91;[51]
[51] Site Accommodation at page 5 per O’Neal DCJ.
f)that having regard to a purchase order from Cameco to Site Accommodation dated 2 February 2010, and an email from Site Accommodation to Cameco dated 21 January 2010, there was no arrangement in place between Site Accommodation and Cameco as at 21 January 2010, and at that point it was not proposed that Cameco would be charged anything by Site Accommodation until 2 February 2010;[52]
g)that the effect of Mr Browne’s Affidavit, filed on behalf of Field Camp Services, was not to dispute the claims made by Site Accommodation in their terms, save that there was an alleged overcharge from 21 January 2010 to 6 February 2010 in the amount of $13,011.42 because hire charges were not payable by Field Camp Services from 20 January 2010;[53]
h)that when Site Accommodation terminated the Hire Agreements with Field Camp Services, it required Field Camp Services to leave the Units at the site of Field Camp Services’ customer, Cameco;[54]
i)that Mr Browne, on behalf of Field Camp Services, informed Cameco in an email on or about 20 January 2010 that Site Accommodation had issued Field Camp Services with the Notice of Termination;[55]
j)that the office administrator of Cameco advised Field Camp Services that it did not want the Units removed, if possible, and would like to continue the hire with Site Accommodation;[56]
k)that there was a subsequent telephone conversation between Mr Browne and the office administrator of Cameco, in which the office administrator of Cameco reiterated that Cameco could not have the on site Units interfered with, and had no option but to hire the Units from Site Accommodation;[57]
l)a claim made in a letter dated 24 January 2010 from lawyers on behalf of Field Camp Services to Site Accommodation’s lawyers[58] alleging that:
i)Site Accommodation was aware of the Cameco Contract; and
ii)Site Accommodation contacted Cameco and arranged for Cameco to hire the Units directly from Site Accommodation in breach of the Cameco Contract,
[52] Site Accommodation at pages 5-6 per O’Neal DCJ.
[53] Site Accommodation at page 6 per O’Neal DCJ.
[54] Site Accommodation at page 6 per O’Neal DCJ.
[55] Site Accommodation at page 6 per O’Neal DCJ.
[56] Site Accommodation at pages 6-7 per O’Neal DCJ.
[57] Site Accommodation at page 7 per O’Neal DCJ.
[58] “24 January 2010 Letter”.
which was said to found a claim for intentional interference with contractual relations in relation to the Cameco Contract, which Field Camp Services was entitled to set-off against any claim that Site Accommodation had,[59] and that Field Camp Services’ lawyers had instructions “to include the conduct as a defence and counterclaim in legal proceedings foreshadowed” by Site Accommodation;[60]
m)the evidence in Mr Browne’s Affidavit that:
[59] Site Accommodation at page 9 per O’Neal DCJ.
[60] Mr Browne’s Affidavit, Annexure GB3. The foreshadowed legal proceedings were referred to in the Notice of Termination sent by Site Accommodation to Mr Browne in his capacity as a director of Field Camp Services: see Mr Browne’s Affidavit, Annexure GB1.
(i)following telephone and email communication with the office administrator for Cameco,[61] Field Camp Services’ lawyers wrote the 24 January 2010 Letter to Site Accommodation’s lawyers on Mr Browne’s instructions.[62] The text of that letter is as follows:
[61] Mr Browne’s Affidavit, paras.20-22.
[62] Mr Browne’s Affidavit, para.23.
“I am instructed that:
1. Field Camp Services Pty Ltd (FCS) hires equipment from Site Accommodation Pty Ltd (SA);
2. FCS contracts with Cameco Australia Pty Ltd (Cameco) and hires equipment, including the equipment hired from SA, to Cameco for use at Cameco’s site in the Pilbara;
3. SA is aware of the contract between FCS and Cameco;
4. Between about 18 January and 20 January 2010, SA contacted Cameco to arrange for Cameco to hire the equipment directly from SA;
5. SA were aware that for Cameco to hire the equipment directly from SA would constitute a breach of the contract between FCS and Cameco;
6. By letter dated 20 January 2009, SA:
a. purported to terminate the hire agreement between FCS and SA, with immediate effect;
b. instructed FCS not to move the hired goods and that they were to remain on site for use by Cameco;
7. On or about 21 January 2010, Cameco advised FCS that it would hire the equipment from SA; and
8. As a result of SA’s conduct FCS has suffered loss and damage including the loss of the benefit of the contract with Cameco and the loss of the opportunity to hire equipment to Cameco after the term of that contract.
Interference with any valid and enforceable contract will found an action for interference with contractual relations, a tort that has been recently recognised by the High Court and House of Lords.
The conduct of SA constitutes interference with the contract between FCS and Cameco, for which SA is primarily liable to FCS for damages.
FCS is entitled to set off its damages caused by SA’s interference with contractual relations between FCS and Cameco, against any claim SA has for hire cost from FCS.
I am also instructed that my client is gravely concerned about the conduct of SA, which conduct can ground a claim for exemplary damages, which damages are recoverable in an action for interference in contractual relations.
As your client’s conduct has caused my client to suffer loss and damage, I am instructed to include the conduct as a defence and counterclaim in the legal proceedings foreshadowed in your letter dated 20 December 2010.”
(ii)the assertion of an intentional interference with contractual relations was rejected by Site Accommodation’s lawyers in a letter to Field Camp Services’ lawyers on 28 January 2010.[63] In a letter on 1 February 2010 from Field Camp Services’ lawyers in reply to Site Accommodation’s lawyers it was said that:
“ … [Field Camp Services] maintains that the conduct of … [Site Accommodation] constitutes interference with the contract between … [Field Camp Services] and Cameco, for which … [Site Accommodation] is primarily liable to … [Field Camp Services] for damages and … [Site Accommodation’s] conduct will be included as a defence and counterclaim in the legal proceedings foreshadowed in your letters dated 20 January and 28 January 2010.”[64]
n)that Field Camp Services’ claimed damages for Site Accommodation’s alleged intentional interference with contractual relations were $197,340 to for the period 21 January 2010 to 15 May 2010;[65] and
o)Field Camp Services’ assertion that it wished to counterclaim with respect to the alleged intentional interference with contractual relations, and its belief that Site Accommodation had no defence to the counterclaim asserted.[66]
[63] Mr Browne’s Affidavit, Annexure GB4.
[64] Mr Browne’s Affidavit, Annexure GB5.
[65] Site Accommodation at page 9 per O’Neal DCJ.
[66] Site Accommodation at page 10 per O’Neal DCJ.
The District Court made a number of relevant findings in the District Court Action, notably:
a)that Field Camp Services was indebted to Site Accommodation in the amount of $99,028.91;[67]
b)that Site Accommodation was entitled to terminate the Hire Agreements as it did, and to direct Field Camp Services to return the Units;[68]
c)that if the Units had not been left on site as agreed between Site Accommodation and Cameco, there was no evidence that Field Camp Services would have been able to supply alternative accommodation units;[69]
d)that it was Cameco that required continuity in the provision of Site Accommodation’s Units;[70]
e)that Field Camp Services could not point to any conduct of Site Accommodation from which an intent to prevent or hinder Cameco from performing its contractual obligations to Field Camp Services could be inferred;[71]
f)that the Court was satisfied that Site Accommodation did not cause Field Camp Services to lose revenue from providing Cameco with alternative accommodation and camp units;[72] and
g)with a credit for the remaining balance of the relevant month, Field Camp Services owed Site Accommodation $90,354.61, and the claim was allowed in that amount.[73]
[67] Site Accommodation at page 10 per O’Neal DCJ.
[68] Site Accommodation at pages 10-11 per O’Neal DCJ.
[69] Site Accommodation at page 11 per O’Neal DCJ.
[70] Site Accommodation at page 11 per O’Neal DCJ.
[71] Site Accommodation at pages 11-12 per O’Neal DCJ.
[72] Site Accommodation at page 12 per O’Neal DCJ.
[73] Site Accommodation at pages 12-13 per O’Neal DCJ.
In Field Camp Services the Court of Appeal expressed significant reservations about Field Camp Services’ ability to establish an arguable defence to Site Accommodation’s claims.[74] The Court of Appeal was however, prepared to accept that it was arguable that the District Court had erred in making a finding that Field Camp Services was not in a position to provide alternative transportable accommodation and camp units, and that upon termination of the Hire Agreements, Field Camp Services would inevitably have been in breach of the Cameco Contract.[75]
[74] Field Camp Services at paras.18-19 per Newnes JA: set out at para.9 above.
[75] Field Camp Services at para.19 per Newnes JA.
What then of the Statement of Claim in these proceedings?[76]
[76] “FMC Statement of Claim”.
Field Camp Services alleges:
a)conduct by Mr Green which was misleading or deceptive, or likely to mislead or deceive, under:
i)schedule 2, s.18 of the CC Act;
ii)section 10 of the FT Act; and
b)intentional interference with contractual relations between Field Camp Services and Cameco by Mr Green.[77]
[77] FMC Statement of Claim, paras.20, 22 and 24.
The misleading and deceptive conduct claims made by Field Camp Services based on the CC Act and the FT Act both plead that in the circumstances pleaded in paragraphs 9 to 12 of the FMC Statement of Claim, Mr Green’s conduct in paragraphs 13, 14, 16 and 18 of the FMC Statement of Claim was misleading and deceptive, or likely to be so.
The plea in paragraph 9 of the FMC Statement of Claim is that:
9. On or about 18 January 2010, … [Field Camp Services] received a letter of demand from the solicitors for Site Accommodation in relation to amounts outstanding under the Hire Agreement, demanding payment by 25 January 2010.
This is a matter which was the subject of:
a)evidence in the District Court Action by Mr Browne as to the receipt and content of the 18 January 2010 letter of demand;[78] and
b)consideration in Site Accommodation where the District Court referred to “16 different demands made by … [Site Accommodation] and its solicitors between 26 May 2009 and 18 January 2010”.[79]
[78] Mr Browne’s Affidavit, paras.14 and 15.2.
[79] Site Accommodation at page 3 per O’Neal DCJ.
The pleas in paragraphs 10 and 11 of the FMC Statement of Claim are that:
10. On or about 18 January 2010, Gregory Browne, of … [Field Camp Services] telephoned … [Mr Green] in relation to the letter of demand.
11. During the telephone conversation pleaded in paragraph 10 above:
11.1 Mr Browne said words to the effect that: “The client [Cameco] has not paid, so our payment has been delayed, but they are arranging the payment so we will be able to pay you”;
11.2 … [Mr Green] said words to the effect of “I need payment to start and you can split the amounts to get them to me”;
11.3 Mr Browne said words to the effect that: “I can give you the contact for the client for you to confirm that they are making payment as I have explained”;
11.4 … [Mr Green] said words to the effect that: “I will call them to confirm they are making the payment to you, so we can get paid”.
In the District Court Action, the content of the telephone call was deposed to by Mr Browne as follows:
15.1 I said words to the effect that Cameco had not paid, so the payment would be delayed, but would be made.
15.2 I also said words to the effect that the demand related to charges in advance, so part of the amount was not even payable.
15.3 Peter Green said words to the effect of I need payment to start and you can split the amounts to get them to me.[80]
[80] Mr Browne’s Affidavit, para.15.
The judgment in Site Accommodation does not specifically advert to the 18 January 2010 telephone conversation. Significantly, in the FMC Statement of Claim further particulars of the 18 January 2010 telephone conversation are included, namely sub-paragraphs 11.3 and 11.4 of the FMC Statement of Claim set out above.
The plea in paragraph 12 of the FMC Statement of Claim is that:
12. … [Field Camp Services] provided … [Mr Green] with the contact details of … [Cameco] for … [Mr Green] to confirm … [Cameco] was making payment to … [Field Camp Services].
Mr Browne’s Affidavit in the District Court Action does not say anything as to this aspect of the 18 January 2010 telephone conversation, nor does the judgment in Site Accommodation specifically advert to it.
The plea in paragraph 13 of the FMC Statement of Claim is that:
13. On or about 19 January 2010, … [Mr Green] contacted … [Cameco] by telephone and offered to have Site Accommodation contract with … [Cameco] to provide the items pleaded in paragraph 4.1 above, from 20 January 2010, other than 1 accommodation caravan, in place of the Contract to provide those items with … [Cameco].
This is a matter which is expressly referred to in the 24 January 2010 Letter,[81] which:
a)Mr Browne says was written “on my instructions”;[82]
b)says that Field Camp Services’ lawyers are “instructed that”;[83]
c)is followed by a series of assertions with respect to the allegation of intentional interference with contractual relations including the following:
4. Between about 18 January and 20 January 2010, … [Site Accommodation] contacted Cameco to arrange for Cameco to hire the equipment directly from … [Site Accommodation];[84]
and
d)is expressly referred to in the judgment in Site Accommodation in relation to the District Court’s consideration of Field Camp Services’ potential counterclaim for intentional interference with contractual relations.[85]
[81] Mr Browne’s Affidavit, Annexure GB3.
[82] Mr Browne’s Affidavit, para.23.
[83] 24 January 2010 Letter.
[84] 24 January 2010 Letter.
[85] Site Accommodation at page 9 per O’Neal DCJ.
The plea in paragraph 14 of the FMC Statement of Claim is that:
14. On or about 19 January 2010, … [Mr Green] instructed the solicitors for Site Accommodation to draft and issue a notice of termination of the Hire Agreement.
There is no reference to this matter in Mr Browne’s Affidavit or the judgment in Site Accommodation. However, on 20 January 2010 the Notice of Termination issued. The Notice of Termination was referred to in the judgment in Site Accommodation.[86]
[86] Site Accommodation at page 3 per O’Neal DCJ.
The plea in paragraph 16 of the FMC Statement of Claim is that:
16. By email dated 21 January 2010, to … [Cameco], … [Mr Green] materially stated:
“I have started the lease period from 2 Feb 10”.
The email of 21 January 2010 is expressly referred to in the judgment in Site Accommodation, as showing:
a)the start date of the lease period between Site Accommodation and Cameco for the Units as being 2 February 2010;[87] and
b)“that there was no arrangement in place between … [Site Accommodation] and Cameco at that point”.[88]
[87] Site Accommodation at page 5 per O’Neal DCJ.
[88] Site Accommodation at page 6 per O’Neal DCJ.
The plea in paragraph 18 of the FMC Statement of Claim is that:
18. The Respondent did not inform the Applicant that he intended to:
18.1 engage in the conduct pleaded in paragraphs 13 to 14 and 16 above; or
18.2 take any steps prior to the expiry of the notice of demand, pleaded in paragraphs 14 and 15 above, on 25 January 2010.
This was not a matter expressly referred to in Mr Browne’s Affidavit, nor in the judgment in Site Accommodation.
The plea in paragraph 19 of the FMC Statement of Claim is that:
19. If [Mr Green] had informed [Field Camp Services] that he intended to act as pleaded in paragraphs 13, 14 and 16 above, [Field Camp Services] would not have provided the contact details of [Cameco] to [Mr Green] or authorised [Mr Green] to contact [Cameco].
The intentional interference with contractual relations claim made by Field Camp Services pleads that “by engaging in the conduct pleaded in paragraphs 13 to 16 … [of the FMC Statement of Claim] … [Mr Green] persuaded, induced or procured … [Cameco] not to perform its obligations under the Contract.”[89]
[89] FMC Statement of Claim, para.24.
Paragraphs 13, 14 and 16 of the FMC Statement of Claim are set out above.[90] Paragraph 15 of the FMC Statement of Claim refers to the issuance of the Notice of Termination, in the following terms, which are said to be material:
[90] See paras.49, 50 and 52 above.
“we hereby give notice that the above Hire Agreements are terminated with immediate effect.
You are instructed not to move the hired goods, or to interfere with them in any manner whatsoever. The hired goods are to remain on site … for use by … [Cameco].”
In both the misleading and deceptive conduct and intentional interference with contractual relations claims, the particulars of loss and damage to Field Camp Services are characterised as the loss of the ability to derive the benefit of the Cameco Contract for the period from 20 January 2010 to 15 May 2010.[91]
[91] FMC Statement of Claim, paras.21, 23 and 25.
A comparison of the judgment in Site Accommodation setting out the outcomes of the District Court Action, with the FMC Statement of Claim shows that:
a)the parties are different, with Mr Green, rather than Site Accommodation, being respondent to these proceedings, but on the facts:
i)the same corporate entities, namely, Field Camp Services, Site Accommodation and Cameco are involved;
ii)the same people (in particular, Mr Green, Mr Browne and the office administrator of Cameco) are involved; and
iii)although Site Accommodation is not a party to these proceedings, it is the conduct of Mr Green, as director of Site Accommodation, which is directly in issue, and this is an issue which was already considered in the District Court Action;
b)the Cameco Contract, and in particular the circumstances in which it came to be allegedly breached by Cameco, and whether that was as a consequence of intentional interference by Site Accommodation, was:
i)put in issue in the District Court by Field Camp Services; and
ii)the subject of express findings by the District Court in Site Accommodation,
and the potential counterclaim in the District Court Action appears to be identical in fact and law to the claim for intentional interference with contractual relations in the FMC Statement of Claim, save that in these proceedings, it is Mr Green and not Site Accommodation being sued;
c)the CC Act and FT Act claims rely upon the same conduct, and in part, that conduct is conduct which was in issue in the District Court Action, but Field Camp Services now asserts (in paragraphs 11.3 and 11.4 of the FMC Statement of Claim) that a representation was made that the purpose of Mr Browne providing Cameco’s contact details to Mr Green, and of Mr Green contacting Cameco, was to confirm that Cameco would pay the monies Cameco owed to Field Camp Services, and not, as Field Camp Services allege transpired, for Mr Green to persuade Cameco to enter into a contract with Site Accommodation in relation to the ongoing hire of the Units; and
d)the relief sought, namely the loss said to have been suffered by Field Camp Services for the period 20 January 2010 to 15 May 2010 is, save for one day, the same loss as was alleged in the potential counterclaim in the District Court Action, albeit that in the District Court Action it was quantified in the sum of $197,340, but is not quantified in these proceedings.
In relation to factual matters, there is a very substantial overlap between the facts which were in issue in the District Court Action, and those pleaded in the FMC Statement of Claim. There are, however, also differences. Specifically, additional facts are alleged in the FMC Statement of Claim to found the representation said to give rise to the misleading and deceptive conduct for the purposes of the CC Act and FT Act claims. With Mr Green being the subject of the allegations made by Field Camp Services in the FMC Statement of Claim, the parties are also different in the FMC Statement of Claim. The cause of action is also different, at least in part, with the FMC Statement of Claim alleging misleading and deceptive conduct under the CC Act and FT Act, as well as alleging intentional interference with contractual relations by Mr Green in relation to the Cameco Contract, whereas the District Court Action was an action in debt, with a potential counterclaim, by Field Camp Services for intentional interference with contractual relations by Site Accommodation in the Cameco Contract. The additional facts alleged, when taken together with the difference in the parties and the causes of action, are sufficient for the Court to find that the facts are not the same, in the District Court Action and in these proceedings.
Anshun estoppel
Mr Green submits that:
a)in substance, the same or similar issues of fact and law were raised by Field Camp Services in the District Court Action as are raised in these proceedings, and there is no justification for Field Camp Services to now attempt to bring essentially the same claim against Mr Green, who was a director of Site Accommodation, being the plaintiff in the District Court Action;
b)the fundamental issue in the application of an Anshun estoppel is whether it was unreasonable for the party bringing the second action to have failed to raise its subject in the first action;[92] and
c)in the circumstances, it is unreasonable for Field Camp Services to now bring these proceedings in this Court.
[92] Citing DP World Australia v Fremantle Port Authority [2009] WASCA 16 at paras.81 and 86 per Newnes AJA (with McLure JA agreeing at para.1) (“DP World Australia”); Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 at 292 and 297-298 per Beaumont, Wilcox and Moore JJ (“Bryant”).
Field Camp Services submits that:
a)as the District Court Action was resolved on a summary judgment application, Field Camp Services cannot be in the position of having failed to raise an issue;
b)Anshun estoppel is properly identified as based on “the doctrines of res judicata and issue estoppel and their analogical extension to issues which ought reasonably to have been litigated in original proceedings”;[93]
c)the requirements for Anshun estoppel to apply have been summarised as follows:
i)there must have been a final judgment by a tribunal, based on the establishment or failure to establish a cause of action;
ii)the later proceeding must raise the same cause of action; and
iii)except where the prior judgment was in rem, the parties to the proceedings must be the same;[94] and
d)in the present case, the facts giving rise to the judgment debt are not part of the action in these proceedings, so an estoppel cannot apply.
[93] Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at para.59 per French J (“Spalla”).
[94] Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at 736 per Lindgren J; [2004] FCA 51 at para.43 per Lindgren J (“Wong”).
Field Camp Services’ submissions that the District Court Action was resolved on a summary judgment, and that, therefore, Field Camp Services cannot be in a position of having failed to raise an issue, belie the true facts.
When the District Court Action was commenced, Field Camp Services’ lawyers filed a memorandum of appearance for Field Camp Services.[95] Thereafter, Field Camp Services was granted leave by a Deputy Registrar of the District Court to defend the District Court Action. The Deputy Registrar’s Decision was overturned on appeal in Site Accommodation, wherein summary judgment was granted to Site Accommodation against Field Camp Services.
[95] Mr Browne’s Affidavit, Annexure GB7.
In Site Accommodation the District Court said as follows:
“Even if, as the first-named defendant [Field Camp Services] now wishes to assert either defendant had other units available to it that [it] could have used to replace those previously hired from the plaintiff [Site Accommodation], there is no reason whatsoever to think that that could have been done as of the date of determination. The first-named defendant having contracted to provide accommodation units it was then in a fundamental breach of its obligations to Cameco. The case put forward by the defendants simply glosses over what was to happen had the first-named defendant insisted that its units immediately be delivered back to the point from which it had supplied them. There was no evidence that the defendants would have been able to fulfil any ‘contract’ with Cameco whatever exactly that may have been. Given that the defendants had no money to pay the plaintiff, that is no working capital or available credit, given that there was no clear offer to provide alternative units beyond the vague conversation that I have referred to it seems to me highly probable that there were no means available to the defendants to immediately replace the units that had been provided by the plaintiff. In the circumstances, had the plaintiff directed that its units be returned to its base of operations, Cameco and its workers would have been left without accommodation.
Most importantly, as appears from the material filed by the defendants, it was Cameco who was unwilling to have any disruption to its camp when the first-named defendant was unable to fulfil its contractual obligations. It was Cameco at that point that was requiring the continuity of the plaintiff’s units. It could not be said, whatever vague knowledge the plaintiff may have had of the first-named defendant’s contractual arrangements with Cameco, that the first-named defendant is able to point to any conduct of the plaintiff from which an intent to prevent or hinder Cameco not to perform its contractual obligations to the first-named defendant could be inferred. Accordingly I am not satisfied that any action of the plaintiff’s caused the first-named defendant to lose revenue from providing Cameco with transportable units.”[96]
[96] Site Accommodation at pages 11-12 per O’Neal DCJ.
Field Camp Services argued in the District Court Action that it had a potential counterclaim, which it could set-off against Site Accommodation’s claim.[97] Brought on the instructions of Mr Browne, the amount of the potential counterclaim was sought to be set-off against any liability to Site Accommodation.[98] Field Camp Services asserted that Site Accommodation had no defence to the potential counterclaim.[99] The District Court described that statement as “very bold” given the law with respect to the tort of intentional interference with contractual relations, which the District Court set out in Site Accommodation.[100] The District Court went on to consider the potential counterclaim,[101] and found that it was “not satisfied that any action of … [Site Accommodation] caused … [Field Camp Services] to lose revenue from providing Cameco with transportable units.”[102] On the facts, not only has Field Camp Services raised an issue, the alleged intentional interference with contractual relations, it has also been determined by the District Court in Site Accommodation following consideration of the facts set out in Mr Green’s Affidavit, Mr Browne’s Affidavit, and the law. Significantly, the allegation of intentional interference with contractual relations was determined adversely to Field Camp Services, primarily on its own evidence. It is not apparent that there was any preclusion on Field Camp Services raising any other issue. This aspect of Field Camp Services’ submission is not made out.
[97] Site Accommodation at page 9 per O’Neal DCJ.
[98] Mr Browne’s Affidavit, para.34.
[99] Site Accommodation at page 10 per O’Neal DCJ.
[100] Site Accommodation at page 10 per O’Neal DCJ.
[101] Site Accommodation at pages 10-12 per O’Neal DCJ.
[102] Site Accommodation at page 12 per O’Neal DCJ.
The description and identification of the requirements for Anshun estoppel to operate are not accurately stated by Field Camp Services in its submissions.[103] Field Camp Services’ submissions tend to equate, or treat, Anshun estoppel as if it were res judicata or issue estoppel per se. The “requirements” for Anshun estoppel referred to by Field Camp Services are in fact the requirements for res judicata identified in Wong,[104] wherein the Federal Court had already concluded that Anshun estoppel was not barred by res judicata or issue estoppel.[105] On appeal (a judgment which Field Camp Services did not advert to in its submissions) the distinction between res judicata, issue estoppel and Anshun estoppel was again made evident, in dismissing an appeal from Wong.[106]
[103] See para.62 above.
[104] Wong ALR at 736 per Lindgren J; FCA at para.43 per Lindgren J.
[105] Wong ALR at 735 per Lindgren J; FCA at para.39 per Lindgren J.
[106] Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10 at 17 per Emmett, Conti and Selway JJ; [2004] FCAFC 242 at paras.36-37 per Emmett, Conti and Selway JJ (“Wong Appeal”).
The proper identification of Anshun estoppel is not that it is “based on the doctrine of res judicata and issue estoppel”, but rather, as the Federal Court explained in Spalla (in a passage to which the Court was not taken by Field Camp Services), the Anshun principle “is allied to, but no co-extensive with, res judicata and issue estoppel”.[107]
[107] Bryant at 295 per Beaumont, Wilcox and Moore JJ; Spalla at para.65 per French J.
In Spalla the Federal Court was dealing with the extent of re-litigation as an abuse of process, and observed that abuse of process subsumed the separate doctrines of res judicata, issue estoppel and Anshun estoppel, in a sense that those doctrines are not exhaustive of the circumstances which might amount to an abuse of process.[108]
[108] Spalla at paras.60 and 66 per French J.
The Anshun estoppel principle was explained as follows by the High Court in Port of Melbourne Authority v Anshun Pty Ltd:[109]
“In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.”[110]
[109] (1981) 147 CLR 589 (“Anshun”). For a practical and concise summary in relation to Anshun estoppel see PW Young et al, On Equity (Sydney: Law Book Co, 2009) pages 803-804.
[110] Anshun at 602 per Gibbs CJ, Mason and Aickin JJ.
In terms of the application of that principle the Federal Court in Spalla said that it “requires the evaluative judgment whether it would have been ‘reasonable’ to have raised in the first proceedings the matter now raised in the second”,[111] or whether, as the Full Federal Court observed in Bryant, it was unreasonable for the party asserting the cause of action in the second proceeding to refrain from raising it in the earlier proceeding against the same opponent.[112]
[111] Spalla at para.65 per French J.
[112] Bryant at 295 per Beaumont, Wilcox and Moore JJ.
For the purposes of determining the unreasonableness required for the principle of Anshun estoppel to operate, the possibility of conflicting judgments has been said to be strongly indicative of unreasonableness.[113] However, the mere close relationship between two sets of proceedings is insufficient to give rise to Anshun estoppel.[114]
[113] Egglishaw v Australian Crime Commission (2007) 164 FCR 224 at 233 per Finn, Kenny and Edmonds JJ; [2007] FCAFC 183 at para.32 per Finn, Kenny and Edmonds JJ (“Egglishaw”).
[114] Egglishaw FCR at 232 per Finn, Kenny and Edmonds JJ; FCAFC at para.28 per Finn, Kenny and Edmonds JJ.
Where the Anshun estoppel test is met, the Court still has a discretion to allow the later proceeding to continue if “special circumstances” exist.[115]
[115] Wong ALR at 737 per Lindgren J; FCA at para.49 per Lindgren J.
The learned author of the 8th Australian Edition of Cross on Evidence,[116] has written of the Anshun estoppel principle that it:
a)has been applied with great caution;
b)may not prevent a party from litigating a claim which it might, or even should, have brought by counterclaim in an earlier proceeding; and
c)can apply if the parties in the second proceedings are different.[117]
[116] JD Heydon, Cross on Evidence, 8th Australian Edition (Chatswood: LexisNexis Butterworths, 2010) (“Cross on Evidence”).
[117] Cross on Evidence, page 262 [para.5170].
In relation to the application of the Anshun estoppel principle to counterclaims and cross-claims, it was said by two members of the High Court in Tanning Research Laboratories Inc. v O’Brien[118] that:
A plaintiff who has an unadjudicated cause of action which can be enforced only in fresh proceedings … cannot be precluded from taking fresh proceedings merely because he could have and, if you will, should have counterclaimed on that cause of action in a forum chosen by the opposite party in proceedings in which the opposite party sued him.[119]
[118] (1990) 169 CLR 332 (“Tanning Research Laboratories”).
[119] Tanning Research Laboratories at 346 per Brennan and Dawson JJ.
In Bryant, the Full Court of the Federal Court, having referred to the judgment of the New South Wales Court of Appeal in Rahme v Commonwealth Bank of Australia,[120] turned to the application of the Anshun estoppel principle in the case before it and observed as follows:
It seems to us that the approach taken in Rahme should be followed in this Court. It is not inconsistent with anything stated in Anshun; indeed it is consonant with the High Court's placing emphasis on looking at the substance of the issue sought to be raised in the later case, rather than on its form. It is true that, in Tanning Research Laboratories at 346, Brennan and Dawson JJ stated that the Anshun principle will ordinarily not apply to cross-claims. They made an exception of cases where the relief claimed in the second proceedings is inconsistent with the judgment in the first. In making this distinction, their Honours may have had in mind a situation, such as the one before them in that case, where the cross-claim depended on facts remote from those of the principal claim. Questions of substantive degree may be involved; and in contrast to defences, many cross-claims may have little or no connection with the principal claim in the action; there may be no more than an identicality of parties. Where that is so, there may be no policy justification for forcing defendants to litigate their claims as cross-claims rather than as principal claims in separate actions in the forum of their choice. But, where, as here, a defendant's claim is intimately connected with that of the plaintiff, in the sense that each arises, substantially, out of the same matters of fact, there is every reason to require that both be litigated at the one time; thereby minimising costs and avoiding the possibility of inconsistent judgments (cf Federal Court of Australia Act 1976 (Cth), s 22).[121]
[120] (unreported, Court of Appeal, New South Wales, 20 December 1991) (“Rahme”).
[121] Bryant at 297-298 per Beaumont, Wilcox and Moore JJ.
In Ling v Commonwealth[122] it was observed by the Full Court of the Federal Court that:
The decision in Bryant does not mean that it will always be appropriate to apply the Anshun principle to cross-claims. Some cross-claims have little or no connection with the claim in the action. There may be no more than an identicality of parties. It is difficult to see any justification for applying the Anshun principle to a case of that kind. Some cross-claims overlap the facts of the principal claim but involve additional facts. Where this occurs, a question of degree arises. It would be wrong to say that the Anshun principle is excluded whenever there are additional facts; to go so far would be to render it nugatory. However, where the additional facts are substantial, it may be appropriate to accept the reasonableness of separate proceedings.[123]
[122] (1996) 68 FCR 180 (“Ling”).
[123] Ling at 183 per Wilcox J (with whom Whitlam J agreed in this respect: at 185).
In Re Australasian Memory Pty Ltd and Corporations Law, Brien and Another v Australasian Memory Pty Ltd and Another[124] the Supreme Court of New South Wales observed that:
Turning now to Anshun estoppel and leaving aside any question of privity, the test to be applied is whether it was unreasonable of the person concerned not to plead a particular defence or, if the principle applies to cross-claims, a particular cross-claim: see Scott v Beneficial Finance Corporation Ltd (Wilcox, Einfeld and Beazley JJ, 31 May 1994, unreported). The doctrine can apply to cross-claims, though a special caution is required in its application. Thus in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 600; 36 ALR 3 at 10:
To require that the defendant always raise his cross-claim or set-off at the first available time could cause great inconvenience.
[124] (1997) 149 ALR 393 (“Australasian Memory”).
And at CLR 603; ALR 12:
There are a variety of circumstances ... why a party may justifiably refrain from litigating an issue in one proceeding yet to wish to litigate the issue in other proceedings, eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.
The test is ordinarily satisfied where issues not raised are so closely or intimately related to the subject of the earlier proceedings that not to raise them would be unreasonable: see, for example, Bryant v Commonwealth Bank of Australia (1994) 123 ALR 642 at 649 per Einfeld J and Port of Melbourne Authority at CLR 604.[125]
[125] Australasian Memory at 413-414 per Santow J.
It would therefore appear that it is, at least, possible for Anshun estoppel to apply in respect of a counterclaim or cross-claim, but that a cautious approach needs to be adopted to the application of the Anshun estoppel principle in these circumstances.
As to whether the Anshun estoppel principle can apply if the parties in the second proceedings are different, Cross on Evidence cites cases from the United Kingdom and New South Wales, in support of that proposition.[126]
[126] Yat Tung Investment Co Ltd v Dao Heng Bank Ltd & Anor [1975] AC 581 at 590 per Lord Kilbrandon; Bradford & Bingley Building Society v Seddon (Hancock and others, t/a Hancocks (a firm), third parties) [1999] 4 All ER 217 at 226 per Auld LJ; Rippon v Chilcotin Pty Ltd & Ors (2001) 53 NSWLR 198 at 201 per Handley JA; [2001] NSWCA 142 at para.15 per Handley JA (with whom Mason P NSWLR at 200; NSWCA at para.1 and Heydon JA NSWLR at 205; NSWCA at para.38, agreed); Redowood Pty Ltd v ASX-Perpetual Registrars Ltd (2006) 57 ACSR 256; [2006] NSWSC 334.
In Foodco Group Pty Ltd & Anor v Northgan Pty Ltd & Anor[127] the Federal Court addressed the question of whether the Anshun estoppel principle was confined to inter partes litigation or whether it could be relied upon by persons who were not parties to the previous litigation. In Foodco it was asserted that the claim then made ought to have been litigated by way of cross-claim in proceedings involving the same subject matter but different parties in an earlier case before the Federal Court, and that the second proceedings gave rise to the prospect of a judgment which would conflict with that given in the earlier proceedings. The Federal Court concluded that:
[127] (1998) 83 FCR 356 (“Foodco”).
… the law, as it currently stands, does not allow Anshun estoppel to apply to a non-party.[128]
[128] Foodco at 360 per Marshall J. See also Australasian Memory at 413 per Santow J, and the cases there cited.
The Federal Court relied upon propositions distilled from the judgment of the New South Wales Court of Appeal in Rahme, including that the Anshun estoppel principle is applicable where the “same opponent party” is involved in both the earlier and second proceedings.[129] The Federal Court observed that:
The various judicial formulations of Anshun estoppel are replete with references to the ‘same parties’.[130]
[129] Foodco at 361 per Marshall J, noting that the passage from Rahme referred to was cited with approval in Bryant at 297 per Beaumont, Wilcox and Moore JJ.
[130] Foodco at 360 per Marshall J.
The Federal Court went on to consider whether the Anshun estoppel principle should be extended to non-parties and determined that, in the circumstances of the case before it, there was no basis for such an extension in the public policy considerations which lie behind the Anshun estoppel principle.[131]
[131] Foodco at 361-362 per Marshall J.
As a judgment of the Federal Court, which is superior to this Court in the hierarchy of federal courts, the Federal Court’s judgment in Foodco, which is directly on point, and not plainly wrong,[132] is binding on this Court and must be followed by this Court,[133] in preference to the English and New South Wales cases cited in Cross on Evidence.
[132] See, for example, Australiasian Memory at 413 per Santow J, and the cases there cited, which support the view expressed in Foodco.
[133] Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586 at 592 per Weinberg, Jacobson and Lander JJ; [2005] FCAFC 41 at paras.38-39 per Weinberg, Jacobson and Lander JJ; Lee & Ors v Minister for Immigration & Anor [2006] FMCA 480 at para.28 per Driver FM; Fortron Automotive Treatments Pty Ltd v Jones & Ors (No. 4) (2011) 254 FLR 303 at 310-311 per Lucev FM; [2011] FMCA 854 at para.16 per Lucev FM.
The requirement that there be an identity of parties to enable an Anshun estoppel to apply can be established if it can be shown that there is privity between the party in the earlier action and the party in the later action.[134] There are three classes of privies: blood, title and interest.[135] In this case the only possible relevant privy is interest. A privy in interest might arise by reason of the assertion in the FMC Statement of Claim that Mr Green is a director of Site Accommodation, and was so at all relevant times.[136] The requirement of privy in interest is that the privy must claim under or through the person of whom he is said to be a privy.[137] This does not assist in this case because a director of a company is not its privy.[138]
Consideration of the application of Anshun estoppel to this case
[134] The Laws of Australia (Thompson Reuters, Legal Online), para.16.1.830.
[135] Ramsay v Pigram (1968) 118 CLR 271 at 279 per Barwick CJ (“Ramsay”).
[136] FMC Statement of Claim, para.2.1.
[137] Ramsay at 279 per Barwick CJ.
[138] Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers and Managers Appointed – In Liquidation) & Ors (1993) 43 FCR 510 at 542 per Burchett J (“Effem Foods”), citing Clegg v Abel (1898) 14 WN(NSW) 131.
Anshun estoppel fails at the outset, because the parties to the proceedings in this Court are not the same as those in the District Court Action, and, insofar as they are different, Mr Green is not a privy of Site Accommodation. Lest that conclusion be erroneous, the Court will otherwise consider whether Anshun estoppel arises.
Field Camp Services’ action for intentional interference with contractual relations in this Court cannot be the subject of an Anshun estoppel because it was a matter which was raised in the District Court Action. The question as to whether it would have been unreasonable not to raise the action for intentional interference with contractual relations in the District Court Action does not therefore arise.
Anshun estoppel does arise for consideration in relation to the CC Act and FT Act claims made in the FMC Statement of Claim. The Court has already observed that there was nothing to preclude Field Camp Services from raising issues in the District Court Action, and that it specifically raised, and unsuccessfully relied upon, intentional interference with contractual relations as a potential counterclaim, as between Site Accommodation and Field Camp Services in relation to the Cameco contract.
The first question is therefore whether Field Camp Services could have raised the CC Act or FT Act claims in the District Court Action. There was no assertion by Field Camp Services that it could not, and Site Accommodation argued, at least implicitly, that the CC Act and FT Act claims were within the jurisdiction of the District Court. In similar circumstances, this Court has found that a claim for misleading and deceptive conduct under the predecessor of the CC Act, and the FT Act, were claims that could have been brought in the District Court.[139] Likewise here, the District Court would have had jurisdiction to deal with the CC Act and FT Act claims if brought in the District Court. There being no jurisdictional impediment, the Anshun estoppel question – as to whether it would have been unreasonable for Field Camp Services not to raise the CC Act or FT Act claims in the District Court Action as a potential counterclaim – arises. The potential counterclaim might have been brought under either the CC Act or the FT Act. Under the CC Act a counterclaim or cross-claim could have been brought against Site Accommodation in the District Court under Schedule 2, s.18 of the CC Act, and relying on s.75B of the CC Act, against Mr Green as a second respondent in his capacity as a director of Site Accommodation. The claim might also have been brought under the CC Act against Mr Green personally, because the representation was one allegedly made over the telephone.[140] Under the FT Act a counterclaim or cross-claim could have been brought against Site Accommodation and Mr Green under the same statutory provisions relied upon in these proceedings. Therefore, the CC Act or FT Act claims could have been made in the District Court Action. The Anshun estoppel issue is, however, ultimately an evaluative one, as to whether it was unreasonable not to raise the CC Act or FT Act claims in the District Court Action. That requires some further consideration of the facts.
[139] Tradesman Technologies Pty Ltd v Ameduri [2010] FMCA 1011 at paras.40-68 per Lucev FM (“Tradesman Technologies”). In Tradesman Technologies the claim was under the predecessor of Schedule 2, s.18 of the CC Act, namely, s.52 of the TP Act.
[140] FMC Statement of Claim, para.11; CC Act, s.6(2)(h) and (3)(a); Dickson v Gallagher & Anor [1985] ATPR 40-550 at 46,459 per Wilcox J. For reasons referred to in fn.4 above the provisions of the CC Act have been referred to in this paragraph rather than the equivalent provisions of the TP Act which were, and continue to be, in force in relation to the times to which the allegations refer. The equivalent provisions of the TP Act are ss.6(2)(h) and (3)(a) (CC Act, s.6(2)(h) and (3)(a)), 52 (CC Act, Schedule 2, s.18) and 75B (CC Act, s.75B).
The CC Act and FT Act claims are based on the 18 January 2010 telephone conversation during which Field Camp Services asserts that:
a)Mr Browne phoned Mr Green concerning Site Accommodation’s 18 January 2010 letter of demand;
b)Mr Browne told Mr Green that Cameco had not paid Field Camp Services, so Field Camp Services’ payment to Site Accommodation was delayed, but that Cameco was arranging the payment so that Field Camp Services could pay Site Accommodation; and
c)Mr Green said that payment needed to start, and that payment could be split.[141]
[141] See para.44 above setting out paras.10 and 11.1 and 11.2 of the FMC Statement of Claim.
The same conversation was deposed to by Mr Browne in the District Court Action. Mr Brown’s Affidavit raised the proposed counterclaim in the District Court Action. In Mr Browne’s Affidavit, Mr Browne also said that he told Mr Green that the 18 January 2010 letter of demand related to charges in advance, so part of the amount was not even payable.[142]
[142] See para.45 above, setting out para.15.2 of Mr Browne’s Affidavit.
The FMC Statement of Claim, filed on 10 June 2011, more than one year after Mr Browne’s Affidavit of 2 June 2010, asserted that in the 18 January 2010 telephone conversation between Mr Browne and Mr Green there was a further exchange to the following effect:
a)that Mr Browne told Mr Green that he would give Mr Green the contact details for Cameco so that Mr Green could confirm that Cameco was making payment to Field Camp Services; and
b)that Mr Green said that he would call Cameco to confirm that Cameco was making the payment to Field Camp Services, which would enable Site Accommodation to be paid.
It was the above alleged additional exchange in the 18 January 2010 telephone conversation which forms the basis for the allegation in the FMC Statement of Claim that there was a representation which constituted misleading and deceptive conduct.
The 18 January 2010 telephone conversation was not the subject of comment by the District Court in Site Accommodation. The reason for that is obvious: in the shortened form of the telephone conversation in Mr Browne’s Affidavit it gave rise to no facts determinative of either Site Accommodation’s action for debt against Field Camp Services, or Field Camp Services’ potential counterclaim for intentional interference with contractual relations.
Even assuming privity, the Court is not, in the exercise of its discretionary judgment, prepared to find an Anshun estoppel operating against Field Camp Services with respect to the CC Act and FT Act claims against Mr Green. That is because the CC Act and FT Act claims are separate causes of action that Field Camp Services is entitled to bring, separately, against Mr Green. The CC Act and FT Act claims are causes of action which are quite distinct from the action in debt which was the subject of the claim by Site Accommodation in the District Court Action, and which could not have been brought against Mr Green personally, or in his capacity as a director of Site Accommodation. The CC Act and FT Act claims are also quite distinct causes of action from the potential counterclaim by Field Camp Services in the District Court Action with respect to intentional interference with contractual relations.
The basis for the CC Act and FT Act claims, namely the alleged representation, can form no part of the cause of action for debt, or the potential counterclaim for intentional interference with contractual relations, in the District Court Action, and were not in issue in those proceedings. Furthermore, there is nothing in the judgment in Site Accommodation relating to the action in debt or the potential counterclaim for intentional interference with contractual relations which, directly or by derivation, affects the legal rights said to arise from the representations alleged under the CC Act or FT Act claims.[143] Neither of the causes of action in issue in the District Court Action had, as a necessary ingredient, reliance upon the alleged misrepresentation, as a consequence of which it is alleged Field Camp Services acted, or refrained from acting, and which resulted in the damage claimed. There is, therefore, no real possibility of conflicting judgments if the CC Act and FT Act claims are ultimately allowed to proceed in this Court, assuming, for present purposes, that those claims are not to be brought, in the future, against either Site Accommodation or Mr Green in the District Court Action, if the Appeal were successful, by way of amendment of the pleadings, and joinder of an additional party, namely, Mr Green. The ability to seek to make such amendment is, of course, dependent upon the outcome of the Appeal.
[143] Effem Foods at 521 per Northrop and Lee JJ.
As ought to be evident from the preceding remarks, the Court has not lost sight of the fact that the CC Act and FT Act claims are within the jurisdiction of the District Court, and might have been brought, and might still be brought, forward as claims in the District Court Action. And, whilst there is no explanation as to why that part of the
18 January 2010 telephone conversation relating to the alleged making of the alleged representations was not a matter raised in the District Court Action by Field Camp Services, as it might have been, it is not difficult to conceive of circumstances where such a matter might be raised, for the first time, by Field Camp Services with its lawyers following the handing down of the judgment in Site Accommodation.
Regard must also be had for the nature of the litigation which led to the judgment in Site Accommodation. Field Camp Services was first given leave to defend by reason of the Deputy Registrar’s Decision. Then, on appeal, summary judgment was awarded against Field Camp Services in Site Accommodation. It would appear that, at no stage, has Field Camp Services been able to turn its mind, in a formal way, to consideration of a proper defence, including counterclaims and cross-claims, in the course of the District Court Action. It appears evident that, for whatever reason, the representations which are now alleged, were not brought forward, for example, in Mr Browne’s Affidavit, during the course of the District Court Action. Had Mr Browne’s Affidavit set out the alleged representations, and had no counterclaim or cross-claim then been made, the Anshun estoppel claim made by Mr Green would have been much stronger.
These are all matters of degree, but the Court is of the view that what is now alleged by way of additional facts, as to the alleged representations, is sufficiently different, and substantial, to warrant the conclusion that it is not unreasonable for Field Camp Services to bring separate proceedings in this Court in relation to the CC Act and FT Act claims, and that those claims ought not to be stayed on the basis of Anshun estoppel.[144]
[144] Ling at 183 per Wilcox J.
Abuse of process
Mr Green submits that:
a)Field Camp Services has not paid the outstanding judgment debt or complied with the Court of Appeal orders, and if Field Camp Services is allowed to proceed in this Court, it will render the orders made in both the District Court and the Court of Appeal useless;
b)Field Camp Services is seeking to have the same issues as were determined in the District Court Action, determined differently by this Court, and its attempt to do so constitutes an abuse of process;[145] and
c)in view of (a) and (b) above Field Camp Services’ application in this Court should be stayed on the grounds of abuse of process.
[145] Citing Dale & Ors v Western Australia & Ors (2011) 191 FCR 521 at 544-548 per Moore, North and Mansfield JJ; [2011] FCAFC 46 at paras.111-112 per Moore, North and Mansfield JJ; Ann Street Mezzanine Pty Ltd (in liq) v Beck & Ors (2009) 175 FCR 532 at 541-542 per Finkelstein J; [2009] FCA 333 at paras.31-34 per Finkelstein J; Tradesman Technologies at paras.68 and 85 per Lucev FM.
Field Camp Services submits that for Mr Green to establish that he is entitled to have Field Camp Services’ action in this Court stayed based on an abuse of process, Mr Green is required to establish that there are in fact two competing proceedings. Field Camp Services further submits that as this cannot be established, it is not necessary to consider the relevant factors.
In Spalla the Federal Court observed that the general concept of abuse of process is a broad one that “subsumes” the specific doctrines of res judicata, issue estoppel and Anshun estoppel.[146] It was further observed that:
69 The public interest considerations underlying the power of courts to stay or dismiss the proceedings for abuse of process extend to preventing the waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. They include the necessity of maintaining confidence in, and respect for, the authority of the courts – Sea Culture International v Scoles (1991) 32 FCR 275 (at 279 French J); Djaigween v Douglas (1994) 48 FCR 535 (at 545 Carr J).[147]
[146] Spalla at para.60 per French J.
[147] Spalla at para.69 per French J.
In Spalla the Federal Court also set out a non-exhaustive list of matters relevant to the determination of an abuse of process, taken from the judgment in State Bank of New South Wales Ltd v Stenhouse Ltd[148] which were as follows:
[148] (1997) Aust Torts Reports 81-423 (“Stenhouse”).
(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;
(b) the opportunity available and taken to fully litigate the issue;
(c) the terms and finality of the finding as to the issue;
(d) the identity between the relevant issues in the two proceedings;
(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of –
(f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.’[149]
[149] Spalla at para.70 per French J quoting Stenhouse at 64,089 per Giles CJ.
Although Field Camp Services said that it was not necessary for the Court to consider the relevant factors relating to abuse of process, it did not appear to dispute that in determining whether there has been an abuse of process, the Court can have regard to the factors which were considered with respect to abuse of process in Tradesman Technologies, which included:
a)comity;
b)jurisdiction;
c)whether joinder of parties and hearing of causes of action together in the earlier proceedings, is possible;
d)expense and convenience to the parties and witnesses; and
e)the degree of progress in the earlier proceedings.[150]
[150] See generally Tradesman Technologies at paras.32-86 per Lucev FM.
Relevant factors do not, and need not, carry equal weight,[151] and in certain circumstances, one or other of the factors may be wholly conclusive.
[151] Tradesman Technologies at para.85 per Lucev FM.
As with Anshun estoppel, it is necessary to consider the alleged counterclaim for intentional interference with contractual relations raised in the District Court Action separately from the CC Act and FT Act claims made under the FMC Statement of Claim. It is convenient to deal with the intentional interference with contractual relations claim first.
The intentional interference with contractual relations case pleaded in the FMC Statement of Claim is no different to that determined in the judgment in Site Accommodation. The issue was an important one in the District Court Action because it was a potential counterclaim by Field Camp Services, and the opportunity was taken to raise the issue and to have it determined, albeit on a summary judgment application. Although the issues cannot be said to have been fully litigated in the sense of a full hearing with evidence called and cross-examined on, it makes little difference because the issue was determined adversely to Field Camp Services primarily on its own evidence, and the factual allegations in the FMC Statement of Claim are, in relevant respects, the same as those considered in Site Accommodation. Even if the issue has to be reconsidered by the District Court as a consequence of the ultimate outcome of the Appeal, it would still be an issue which is squarely before the District Court for determination. Comity demands that this Court respect the current determination of the District Court in Site Accommodation on this issue, especially where the factual matrix is, relevantly, the same.[152] And, even if the matter had to be reconsidered by the District Court as a result of the ultimate outcome of the Appeal the additional cost and expense of running the same case in this Court, when the issue has been raised only latterly in this Court, and the possibility, theoretical at least, of different judgment outcomes, dictate that the intentional interference with contractual relations claim be stayed in this Court. If the Appeal is dismissed that ends the matter, for it has already been determined by the District Court.
[152] Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ.
Subject to the outcome of the Appeal, it is a case which has already been disposed of and ought not be litigated anew in this Court. In any event, considerations of duplication and expense dictate that the matter ought remain in the District Court to be litigated, rather than be litigated in this Court and the District Court concurrently. A litigant ought not be vexed by having to defend precisely the same case in two courts at the same time.
With respect to the intentional interference with contractual relations claim, the fact that Mr Green is the respondent in the proceedings in this Court does not effect the Court’s view that that claim ought to be stayed. This is because all the relevant conduct by Mr Green was conduct in his capacity as a director of Site Accommodation, and ultimately the facts, and the relevant outcomes, remain the same.
The intentional interference with contractual relations issue ought therefore be stayed in this Court.
In relation to the CC Act and FT Act claims, there are no issues of comity as those claims have not been agitated before the District Court. Nor, for reasons set out above with respect to the Anshun estoppel issue, is it reasonable for Field Camp Services to have those issues stayed on the basis that they ought to have been litigated before the District Court, at least by way of their being adverted to as potential counterclaims or cross-claims in Mr Browne’s Affidavit in the District Court Action. There are no findings of the District Court in relation to the separate, and central elements, of the CC Act and FT Act claims, namely reliance on the representations allegedly made in the 18 January 2010 telephone conversation, because those representations were not then in issue. Further, those issues appear to be quite limited in compass, and capable of being dealt with expeditiously and discretely from the issues raised in the District Court Action. Furthermore, it would appear that on the basis of the factual allegations in the FMC Statement of Claim, that there will be fresh evidence, which has not been tested in any court, put forward in support of the CC Act and FT Act claims.
The FMC Statement of Claim with this additional alleged exchange in the telephone conversation of 18 January 2010, was not filed:
a)until more than 12 months after Mr Browne’s Affidavit (containing the shorter account of the 18 January 2010 telephone conversation) was filed in support of the District Court Action;
b)until nine months after the District Court Action resulted in the judgment in Site Accommodation;
c)more than eight months after the Appeal was filed;
d)almost three weeks after the judgment in Field Camp Services on the Appeal; and
e)on the day in which the Court of Appeal ordered Field Camp Services to provide security for costs and suspended the orders made in the District Court Action subject to Field Camp Services paying the total of the judgment debt exclusive of interest (neither of which has yet occurred).[153]
[153] See paras.6-11 above.
The delay in bringing the CC Act and FT Act claims is not, however, in the Court’s view a matter to which significant weight ought to be given. That is because under the CC Act and the FT Act there are limitation periods of six years[154] and three years[155] respectively in which to bring a claim of misleading and deceptive conduct. The CC Act and FT Act claims by Field Camp Services have been brought well within this period.
[154] CC Act, s.82(2).
[155] FT Act, s.79(2).
The Court observes that it would be possible for the CC Act and FT Act claims against Mr Green to be the subject of an amended potential counterclaim, with Mr Green joined as a party to the proceedings, in the District Court Action. That, however, depends upon the ultimate outcome of the Appeal. For that reason, and that reason only, the CC Act and FT Act claims ought to be stayed in this Court until the outcome of the Appeal is known, and any further steps in the District Court Action are also known. Subject to that caveat, there is no reason why the CC Act and FT Act claims in this Court ought to be otherwise stayed.
The Court does not agree that allowing the CC Act and FT Act claims to proceed in this Court will render the orders made in both the District Court and the Court of Appeal useless. Those orders, independently of this action, continue to have force and effect in their terms.
As indicated above, the CC Act and FT Act claims are independent causes of action, based on different, and as yet untried, factual and legal elements, and the mere existence of the orders in the District Court and Court of Appeal, ought not preclude an otherwise arguable claim being pursued in this Court.
The Court has therefore determined that proceedings in this Court ought to be stayed. Subject to the ultimate outcome of the Appeal, and any further steps in the District Court Action, reconsideration of the stay, in whole or in part, may be warranted at some future stage.
Security for costs
As the Court has determined that the application in a case to stay proceedings should succeed, it is unnecessary to determine the issue of security for costs. If for some reason the stay is lifted in the future, security for costs can then be considered, if necessary. The application for security for costs ought therefore be adjourned.
Conclusions and orders
The Court has concluded that:
a)proceedings in this matter ought to be stayed pending further order of the Court;
b)the application for security for costs will be adjourned;
c)costs will be reserved;
d)there will be liberty to apply on 5 days’ notice; and
e)the matter will otherwise be adjourned to a directions hearing at 10.00am on 26 March 2012.
There will be orders accordingly.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 2 March 2012
[21] Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118 at paras.18-21 per Newnes JA (“Field Camp Services”).
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