Gibbs and Gibbs and Ors
[2017] FamCA 7
•17 January 2017
FAMILY COURT OF AUSTRALIA
| GIBBS & GIBBS & ORS | [2017] FamCA 7 |
| FAMILY LAW – PRACTICE & PROCEDURE – CASE STATED – where the applicant seeks a case be stated to the Full Court of the Family Court of Australia – where the proposed case stated relates to a claim against his former solicitors – where those solicitors drafted a financial agreement which was subsequently set aside by the Family Court on the basis that it was uncertain in its terms – where the case stated relates to what defences might be open to the solicitors in defending a negligence claim – whether the solicitors raising a defence that the financial agreement was not uncertain would amount to an abuse of process – where the application for a case stated is dismissed. |
| Family Law Act 1975 (Cth) |
| Bakhtiari & Minister for Immigration Multicultural and Indigenous Affairs [2002] FamCA 767 Paul & Paul [2011] FamCA 672 Pedrana & Pedrana [2012] FamCA 347 |
| APPLICANT: | Mr Gibbs |
| 1st RESPONDENT: | Ms Gibbs |
| 2nd RESPONDENT: | Mr Gleist |
| 3rd RESPONDENT: | Mr Blake |
| 4th RESPONDENT: | Mr Geller |
| 5th RESPONDENT: | Mr Dimarco |
| FILE NUMBER: | BRC | 10882 | of | 2013 |
| DATE DELIVERED: | 17 January 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 20 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cavanagh SC with Ms Giacomo |
| SOLICITOR FOR THE APPLICANT: | Manning Lawyers |
| 1ST RESPONDENT: | Appearance excused |
| COUNSEL FOR THE 2ND, 3RD 4TH AND 5TH RESPONDENTS | Mr Jennings |
| SOLICITOR FOR THE 2ND, 3RD, 4TH AND 5TH RESPONDENTS: | HWL Ebsworth |
Orders
The Application in a Case filed by the Applicant on 29 November 2016 is dismissed.
In the event that the parties are unable to agree in writing within 21 days of today what costs Order, if any, might be made regarding the costs of and incidental to the said Application:
(a) Each party file within a further 14 days written submissions in respect of that issue; and
(b) Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by either party.
In the event that the parties reach agreement in writing on the issue of costs, they be at liberty to file jointly, minutes of consent via e-mail to the Associate to Justice Carew.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gibbs & Gibbs & Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10822 of 2013
| Mr Gibbs |
Applicant
And
| Ms Gibbs |
Respondent
And
| Mr Gleist |
Second Respondent
And
| Mr Blake |
Third Respondent
And
| Mr Geller |
Fourth Respondent
And
| Mr Dimarco |
Fifth Respondent
REASONS FOR JUDGMENT
Mr Gibbs (“the husband”) applies for a case to be stated to the Full Court of the Family Court of Australia pursuant to s 94A of the Family Law Act 1975 (Cth) (“the Act”).
Ms Gibbs (“the wife”) is the first respondent but takes no interest in this application and her appearance has been excused with the consent of all parties.
Mr Gleist, Mr Blake, Mr Geller and Mr Dimarco (“the other respondents”) oppose the application.
proposed questions for case stated[1]
[1] It is acknowledged by the husband that any questions posed would ultimately occur only after consultation with the other respondents and as settled by the Court as required by the Family Law Rules.
The questions for the case stated are proposed by the husband as follows:
a)In circumstances where this Court in these proceedings has already set aside the financial agreement on the grounds that it was void for uncertainty in its terms, are the Defendants permitted to:
i)Rely on a defence that the financial agreement was not void for uncertainty;
ii)Assert in their defence that the Court (Hogan J) was in error;
iii)Assert in their Defence that the Court (Hogan J) was in some way led or induced into making the finding, despite the statutory obligation to form an independent view;
iv)Assert in their Defence that the financial agreement would have been set aside on different grounds.
b)In circumstances where this Court has already made orders to the effect that the financial agreement is void for uncertainty and therefore void ab initio, are the Defendants entitled to raise as part of their Defence issues relating to the construction of the financial agreement and alternative grounds on which it might have been set aside.
background
On 14 March 2005 the husband and wife entered into a financial agreement pursuant to s 90B of the Act.
They married in 2005 and separated on 26 November 2013. They have two children now aged ten and six years respectively.
On 12 February 2014 the wife applied for the financial agreement to be set aside pursuant to s 90K of the Act.
The grounds relied upon by the wife for setting aside the financial agreement included duress, undue influence and unconscionability. Initially, the wife had also sought to attack the financial agreement as being void, voidable or unenforceable because its terms were uncertain.
The matter was listed for trial for four days (including parenting issues) before Justice Hogan commencing 23 July 2015.
At the commencement of that hearing, Senior Counsel for the husband informed the Court that the setting aside of the financial agreement on the ground that it was void, voidable or unenforceable by reason of uncertainty would not be opposed but that if the matter proceeded on some other ground it “would require several days of agitation of unnecessary evidence”. The motivation for pursuing the former course was said to be as follows:
Because it means a great deal obviously to our client not to be caught up in some suggestion that there has been some proven misdemeanour, as it were … on his part.
Prior to the hearing on 23 July 2015, the wife’s solicitors had informed the husband’s solicitors of her intention to abandon the claim that the financial agreement should be set aside because of uncertainty but faced with the concession made by the husband on 23 July 2015 the wife did not cavil with the submission that the agreement was void for uncertainty. Indeed it was supported.
Ultimately very few submissions were made by Queen’s Counsel for the wife or by Senior Counsel for the husband in support of the ground for setting aside the financial agreement. There was fierce agreement of its uncertainty as expressed by Senior Counsel for the husband:
We have identified that which we think is blindingly obvious when one looks at it. That it’s void for – it’s voidable or unenforceable, because it’s uncertain in its terms. And then we would invite that to be your Honour’s finding.
Having independently satisfied herself that essential terms of the financial agreement were uncertain (as required by s 90K of the Act), Hogan J exercised her discretion to set aside the financial agreement on 23 July 2015. In particular it was held:
5. Having regard to the terms of the Financial Agreement, I am satisfied that it is voidable or unenforceable because of uncertainty in its terms. One has, in my view, only to have regard to the potential difficulties interrupting (sic) some of its terms – in circumstances where there is an absence of clear definition as to what is meant by them.
6. Additionally, it seems to me, that there is, or may be, difficulty in an interpretation of Clauses 4.3 and 4.4 of the Agreement when regard is had to the terms of them. It is not, it seems to me, by way of example, immediately apparent in terms of a clear expression of the intention of the parties as to what, in fact, might have been their intention and how, in fact, the terms of Clause 4.4, (if applicable), should be carried into effect.
7. Other examples of difficulties identified from a perusal of the terms of the agreement were discussed earlier during discourse with Counsel.
8. I am not persuaded that the uncertainty of terms as expressed in the Agreement touches upon only aspects or claims which could be severed so as to preserve the existence of the Agreement.
9. I think, instead, that essential terms (for example: matters such as “matrimonial property’; what happens to property acquired after marriage but before dissolution – to use only two examples) of the Agreement are vague.
10. As I have already expressed in this short form, what, also, is meant by the terms of Clause 4.4 and the manner in which it is said to touch upon or in some way affect the operation of the terms of Clause of (sic) 4.3, given the reference and drafting of those clauses?
11. I am satisfied that those clauses to which I have just referred are essential terms which are uncertain and that, in assessing them objectively, the language is so imprecise and incapable of definite or precise meaning that a Court is unable to attribute to the parties any particular contractual intention in relation to them.
The wife’s applications for property settlement and spouse maintenance were then set down for hearing over three days commencing 25 November 2015.
However, on 2 November 2015 Hogan J heard an application by the husband to join the partners of the law firm who had prepared the financial agreement. The husband alleged that the solicitor who had prepared the financial agreement had been negligent and as a result he would suffer damage upon the determination of the wife’s property settlement and maintenance claim.
That application sought to join the 2nd, 3rd and 4th respondents. The application was opposed by those respondents. In the course of providing her reasons for joining those respondents Hogan J stated:
…
10. I accept that the claim for damages falls within the Court’s jurisdiction because it forms part of the controversy of which an integral part or element or substantial aspect is itself undoubtedly within jurisdiction conferred upon this Court by statute.
11. Whilst the issue between the husband and the wife about the validity of the financial agreement is resolved, that is not the case between the husband and the proposed Respondents. The submission made on behalf of the proposed Second, Third and Fourth Respondents at paragraph 9 of the outline of written submissions, wherein it refers to the introduction of new “issues”, really only identifies, in my view, the type of relief sought. This does not effect (sic) whether or not there is a single justiciable controversy, as that phrase is understood to refer to the controversy which arises out of common transactions or substratum of facts, it being unnecessary that the facts on which that class depends do not wholly coincide.
…
13. … I am persuaded that the non-federal claim and the federal claim are within the scope of one controversy and, thus, within the ambit of a matter and, thus, within the jurisdiction of the Court.
…
15. I do not accept that the determination of the issue in relation to the nature of the financial agreement between the husband and the wife has severed any common transaction or substratum of facts and the fact that the claim and/or relief sought by the husband against the Second, Third and Fourth Respondents is different does not mean that the substratum of fact (sic) out of which the issues arise is different.
Directions were made about the filing of pleadings as between the husband and the 2nd, 3rd and 4th respondents and the trial dates commencing 25 November 2015 were vacated.
On 9 June 2016 an Order was made by consent joining the 5th respondent and further directions were made about the filing of amended pleadings as between the husband and the other respondents including an Order that the husband file a Reply to the Defence by 1 July 2016.
The parties attended a mediation but no agreement was reached.
The pleadings are yet to be finalised. The husband and the other respondents are still in dispute about particulars.
The other respondents deny liability on numerous grounds including:
a)They were not negligent in preparing the financial agreement because it was not void for uncertainty;
b)There was no causal link between any alleged negligence and the claimed loss because the financial agreement would have been set aside in any event on grounds (otherwise relied on by the wife) of inter alia, duress, unconscionable conduct or undue influence; and
c)By the terms of the financial agreement the husband would have been liable for maintenance and property adjustment orders in any event.
Mr Cavanagh SC for the husband informed the Court, without demur from counsel for the other respondents, that the trial of this matter would be unlikely to be listed until 2018 and if all matters, currently the subject of pleadings, were at large the trial would be likely to take three weeks.
No evidence is before me as to the likely hearing date for a case stated.
principles applicable to consideration of whether or not a case should be stated
Section 94A of the Act provides:
Case stated
(1) If, in proceedings in a court, being proceedings in which a decree or decision to which subsection 94(1) or (1AA) applies could be made, a question of law arises which the Judge and at least one of the parties wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with, the Judge shall state the facts and question in the form of a special case for the opinion of a Full Court, and a Full Court shall hear and determine the question.
(2) The Full Court may draw from the facts and the documents any inference, whether of fact or of law, which could have been drawn from them by the Judge.
…
The relevant rules of court appear in Part 22.9 of the Family Law Rules 2004 (Cth) (“the Rules”). It is not necessary at this point to set them out in full. Suffice to say they provide a process for the drafting and settling of the proposed facts and question of law to be determined in a case stated.
Whether or not a case is stated invites the exercise of judicial discretion.[2] A case should only be stated in ‘exceptional circumstances’ and not in relation to questions of law which can well be determined at first instance.[3]
[2]Paul & Paul [2011] FamCA 672 at [21] to [22]
[3] In the marriage of CE Daff (dec) [1984] FLC 91-516 at 79,189; Pedrana & Pedrana [2012] FamCA 347 at [16]
In Bakhtiari & Minister for Immigration Multicultural and Indigenous Affairs[4] Dawe J said:
20. The process of stating a case should not be a method of sidestepping a decision by a Judge at first instance; neither is it a means for the Judge at first instance to avoid making a decision on questions of jurisdiction, power or statutory interpretation. When considering whether to state a case, I believe it is the obligation of the Court to explore all the options and weigh all the advantages and disadvantages in a particular case. It is necessary then to determine whether the stating of the case would be reasonable, and make a decision based upon that outcome.
[4] [2002] FamCA 767
While it is the usual course for relevant facts in dispute to be determined before a case is stated, that is not always a pre-requisite. It depends on the circumstances as held by Brennan CJ in Kruger v Commonwealth; Bray v Commonwealth:[5]
As a general rule, it is inappropriate to reserve any point of law for the opinion of the Full Court before a determination of the facts which evoke consideration of that point of law or of the facts on which the answer to the question reserved may depend. In the present case, however, the manifest preponderance of convenience requires that such issues of law as can be determined before the issues of fact are litigated be referred to the Full Court for determination.
[5] (1995) 69 ALJR 885 at 889
In Re Alcoota Land Claim No 146[6] the Full Court of the Federal Court quoted Murphy J from Brisbane City Council v Valuer-General (Qld)[7] in relation to the procedure for appeal by case stated from the Land Court in Queensland:
... The lengthy argument in this appeal concerning the effect of the case stated illustrates the disadvantage of that procedure. Except in very simple cases, it generally introduces complications which obscure the real points to be decided. Whatever its theoretical merits, in practice it is one of the worst legal techniques. Invoking the stated case procedure generally results in a legal snarl. Sometimes this is due to careless statement of the case, but often it happens because even with care it is not easy to predict which findings an appellate court will consider necessary or relevant.
[6] (1998) 82 FCR 391
[7] (1978) 140 CLR 41 at 61
The Full Court went on to observe:[8]
[8] (1998) 82 FCR 391 at 393
To similar effect, Lord Evershed MR in Windsor Refrigerator Co Ltd v Branch Nominees Ltd said of a preliminary point of law set down for hearing before trial:
I repeat what I said at the beginning, that the course which this matter has taken emphasises, as clearly as any case in my experience has emphasised, the extreme unwisdom - save in very exceptional cases - of adopting this procedure of preliminary issues. My experience has taught me (and this case emphasises the teaching) that the shortest cut so attempted inevitably turns out to be the longest way round.
In the same case, Harman LJ said (at 396):-
I concur, and find myself doing so with particular heartiness with reference to the last observations my Lord has made. The number of conditions he has found it necessary to use to fence the expression of this court’s opinion shows at once the undesirability of this kind of procedure. It is highly undesirable that the court should be constrained to tie itself in so many knots, and in the end merely say: ‘Well, if this was thus, then that was so’.
The above passages, apt to describe the circumstances confronting the Court here, are but forceful statements of the attitudes of the courts to the resolution of questions of law by a procedure of special case, case stated or preliminary question and reinforce that such procedure is more often than not productive of difficulty, delay, artificiality and injustice and should be adopted cautiously and in only the clearest and simplest cases: Allen v Gulf Oil Refining Ltd [1981] AC 1001 at 1010 - 1011, 1021 - 1022; Rocklea Spinning Mills Limited v Anti-Dumping Authority (1995) 56 FCR 406 at 423; Tilling v Whiteman [1980] AC 1 at 17 - 18, 25; Aluminium Products (Qld) Pty Ltd v Hill [1981] Qd R 33 at 36 - 37, 38; White v Ridley (1978) 140 CLR 342 at 362 - 363; Chippendale Printing Co Pty Ltd v Commonwealth (1995) 17 ACSR 328 at 332 - 334. The problems inherent in these procedures are exacerbated when the Court is asked to determine questions of law on incomplete facts, or on assumptions, or in circumstances which render it impossible to answer the questions in other than a hypothetical fashion: Swift Australian Co (Pty) Limited v South British Insurance Co Ltd [1970] VR 368 at 369; Hatfield v Cummins & Campbell Ltd [1912] St R Qd 85 at 89; Aluminium Products v Hill at 36 - 37, 38; Australian Commonwealth Shipping Board v Federated Seamen’s Union of Australasia (1925) 36 CLR 442 at 448, 450 - 452, 462.
The case stated procedure ought not be adopted where there are disputed questions of fact which impinge upon the question or questions of law reserved for determination. Nor is it appropriate where the answer to the question depends upon the impact of detailed and complex findings of fact upon legal principles which are flexible in their application and therefore inextricable from those facts: Allen v Gulf Oil Refining at 1011.
The questions for the Court on a special case are, of course, questions of law and not of fact: Burgess v Morton [1896] AC 136 at 136, 141, 144; Schumacher Mill Furnishing Works Proprietary Ltd v Smail (1916) 21 CLR 149 at 151. Whilst the distinction may sometimes be a difficult one, the Court cannot properly discharge its function unless it is observed and unless there is in the stated case a sufficient foundation in fact for the determination of the question or questions of law reserved. If those pre-conditions are not met, the Court should and will refuse to answer the questions reserved.
In the marriage of Mullane[9] Evatt CJ and Butler J said at 202:
...There must, of necessity, be additional delay and cost involved in stating a case to the Full Court... In view of the delay and cost involved, and the time taken up by the Full Court in dealing with a stated case, it is important that the court and the parties consider carefully whether it would be preferable to let the matter proceed to a full hearing.
[9](1980) 43 FLR 201
husband’s submissions
Although not immediately apparent on the face of the written submissions filed on behalf of the husband, Senior Counsel for the husband advanced an argument that to permit the proceedings to be litigated as proposed by the other respondents would constitute an abuse of process as the Court has already made a finding that the financial agreement was uncertain and set it aside. It was submitted that what the other respondents propose by their Defence is a re-litigation of an issue that has been determined i.e. that the financial agreement should be set aside. It was argued that the prospect of conflicting judgments on whether or not the financial agreement was void for uncertainty and should be set aside would bring the administration of justice into disrepute and was therefore an abuse of process.
Mr Cavanagh SC was at pains to emphasise that he was not intending to argue the ‘re-litigation abuse of process’ case but merely to press for a case to be stated to the Full Court on the issue.
As to why the issue should result in a case stated it was submitted firstly, that absent a ruling by the Full Court that narrows the issues available for agitation, the trial may take three weeks and secondly, given the likely prevalence of cases of this type in future it is timely for the Full Court to provide some guidance as to the effect of an order setting aside a financial agreement in litigation as between the solicitors sued for negligence and their former client.
It is not seriously in contention[10] that the doctrines of res judicata and issue estoppel do not preclude the other respondents from arguing the matters about which complaint is made by the husband and upon which he seeks the intervention of this Court by way of a case stated to the Full Court because the other respondents were not parties to the proceedings at the time the determination was made.
[10] Mr Cavanagh SC tentatively sought to reserve his client’s position as to the res judicata issue
It was submitted that the finding that the agreement was uncertain and therefore void would be binding on the other respondents whether or not the proceedings were dealt with in this Court or in another jurisdiction (for instance had the negligence proceedings not been commenced until after the determination of the proceedings between the husband and wife). By way of analogy it was submitted that if a determination were made by the Supreme Court of a State that a plaintiff failed in a claim because she commenced proceedings outside a limitation period that finding would be binding on a solicitor who was subsequently sued for negligence. No authorities were cited to support either proposition although as this is not the hearing of the abuse of process argument perhaps that is understandable. I have not located an authority to support either submission.
Mr Cavanagh SC submitted that the recent Queensland Court of Appeal decision in Rogers v Roche[11]provided some support for his contention that the proposed re-litigation of the grounds for setting aside the financial agreement was an abuse of process and quoted in particular:
… Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.[12]
[11] [2016] QCA 340
[12] This is a quote taken from the High Court decision of Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
He readily acknowledged that the particular outcome in that case did not assist his argument. His purpose in relying on it, or more particularly on the passage quoted, was to provide an authority that a party who had not been involved in an earlier proceeding may nevertheless be bound by it.
It was submitted that the capacity of the other respondents to argue that they were not negligent would not be prevented by a finding of abuse of process as the finding of uncertainty was but one element of a possible finding of negligence.
In short, Mr Cavanagh SC contends that it is appropriate and convenient for the Full Court to make the determination in this case as to whether or not the other respondents’ proposed Defence is an abuse of process rather than a judge in the trial division. I am not entirely sure why that would be so.
other respondents’ submissions
The other respondents were provided an opportunity to file further written submissions on the abuse of process issue and did so on 23 December 2016.
In his earlier written submissions, Mr Jennings for the other respondents argued that the issue raised by the husband in his Application for a case to be stated to the Full Court was resolved by the application of the well-known principles of, inter alia, issue estoppel and res judicata.
As to the abuse of process argument, Mr Jennings submits that the husband has failed to demonstrate any basis upon which a case should be stated.
The quote referred to by Mr Cavanagh SC and set out above[13] originated in the case of Tomlinson v Ramsey Food Processing Pty Ltd[14] where the High Court overturned a decision of the New South Wales Court of Appeal, the consequence of which enabled a worker to sue a company for damages for personal injury suffered as a result of its negligence (which could only be pursued if the company were not his employer) in circumstances where an earlier hearing conducted by the Fair Work Commission found that the company was the worker’s employer and ordered it to pay him outstanding employee entitlements. I note that the result turned on whether or not the worker was privy in interest to the earlier proceedings and the High Court held he was not. It was not argued in that case that the worker’s claim for damages was an abuse of process but when considering the various forms of estoppel that might prevent the eventual outcome, the High Court discussed the relationship between estoppel and abuse of process and said as follows:
The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.
(footnotes omitted)
[13] At [37]
[14] (2015) 256 CLR 507
Mr Jennings noted that the High Court referenced the last sentence of the above quote to a decision of the New South Wales Court of Appeal in O’Shane v Harbour Radio Pty Ltd[15] in which a magistrate had sued a radio station for defamation. The radio station raised a defence of truth and for that purpose indicated that they would rely upon appellate judgments from the magistrate’s relevant decisions wherein for example one of her decisions was described as one of “the most diabolical and wrong decisions in law”. I note that the question of re-litigation abuse of process[16] was referred to the Court of Appeal as a case stated consequent upon an application to strike out particular paragraphs of the Defence. The relevant question posed to the Court of Appeal was in the following terms:
Whether, … [the paragraph of the Defence raising the ‘truth defence’] of the amended defence should … be struck out as an abuse of process as trespassing on the principle of finality of decisions.
[15] (2013) 85 NSWLR 698
[16] There were additional issues in that case which formed the basis for the case stated
The Court of Appeal answered that question in the negative ‘provided it was done in the manner pleaded and particularised’.
The Rogers v Roche[17] case was an appeal against a decision of a judge in the trial division of the Supreme Court of Queensland striking out parts of a Statement of Claim as being an abuse of process. The facts involved a firm of solicitors sued by a former client for damages arising out of inter alia professional negligence in the conduct of his personal injuries case. The client had been successful in his claim against a third party but complained that the damages awarded did not sufficiently compensate him for his loss. While accepting that the appellant’s claim involved “collateral challenges to the judicial decision in the personal injuries litigation in the sense that the decision he seeks in this litigation about the economic loss he sustained as a result of his accident would conflict with a judicial decision upon the same issue in the personal injuries litigation” the Court of Appeal allowed the appeal and held that no part of the claim was a “re-litigation abuse of process”. It was held:
It is not easy to see that allowing redress against a solicitor whose wrongful conduct in connection with litigation is responsible for a plaintiff’s misadventure in a civil case is unjustifiably oppressive to that solicitor or would be likely to bring the administration of justice into disrepute.[18]
It is an aspect of all parts of the appellant’s claim that he was deprived of a full opportunity of obtaining the entire amount of his economic loss by the wrongful conduct of the first and second respondents. To shut out litigation of this part of the appellant’s claim would be more likely to bring the administration of justice into disrepute than would conflicting judicial decisions about the appellant’s economic loss reached upon different evidence.[19]
[17] [2016] QCA 340
[18] At [47]
[19] At [50]
Counsel for the other respondents submits that the husband is not assisted in his argument that a case should be stated when regard is had to the authorities discussed. I tentatively agree, although stress that Mr Cavanagh SC did not provide a fulsome argument for the reasons stated.
Mr Jennings also submitted that until pleadings have been finalised the extent of the dispute between the parties is not known. There is merit in that argument.
It was further submitted that the very issue about which the husband now seeks a case to be stated was already determined by Hogan J on 2 November 2015 in the proceedings by the husband to join the 2nd, 3rd and 4th respondents (the 5th respondent being joined at a later time by consent) where it was stated:
… whilst the issue between the husband and the wife about the validity of the financial agreement is resolved, that is not the case between the husband and the proposed respondents.
While there was some discussion about that issue at the hearing on 28 October 2015, certainly no concession was made by the husband and it is not apparent to me that it was a necessary finding in the determination of the joinder issue.
discussion
The issues raised in this matter are important and may well impact upon the nature and length of the trial but, in my view, the identification of the precise parameters of the dispute is a pre-requisite to stating a case to the Full Court. Finalising the pleadings is an essential first step. For example, it is as yet unknown what the husband’s response is to the factual allegations that may be supportive of a finding of duress, undue influence or unconscionability. If he admits those facts the trial is hardly likely to be extended greatly, if at all by reason of those matters. It will be a matter for submissions as to whether such matters amount to duress etc. and whether the causal link to the claim for damages is impacted by such matters.
There is certainly a possibility of there being two conflicting findings made on the same issue viz as to the uncertainty of the terms of the financial agreement and that could arguably bring the administration of justice into disrepute.
Further, it is not just the difficulty arising from conflicting findings on the ground of uncertainty of the financial agreement, but if it were ultimately found that there were in fact no grounds to set aside the financial agreement, the Court would have no jurisdiction to entertain the wife’s s 79 application unless, the initial finding bound the parties to it, namely the husband and the wife, and the latter finding bound the husband and the other respondents. It is certainly arguable that such a result would bring the administration of justice into disrepute. But, of course, any question posed to the Full Court on such a basis would be purely hypothetical and unlikely to be entertained until actual findings were made.
It is difficult to contemplate the other respondents being bound by a finding in a case in which they had no input. The prejudice to them would be significant. Certainly there is authority to suggest that a third party who had no involvement in an earlier case can be bound by an earlier decision but as the discussion in O’Shane[20] demonstrates, such cases will be rare.
[20] See [45] above
I note an allegation made by the husband that the 5th respondent was in effect on ‘notice’. As observed by counsel for the other respondents it is not clear what it was the 5th respondent had notice of. It is true he provided an affidavit in the proceedings in the husband’s case but it is not apparent to me that he had notice of the husband’s intention to make the concession about the uncertainty of the agreement. This is a matter that may be relevant to the determination of whether the proposed Defence is an abuse of process.
In State Bank of New South Wales v Alexander Stenhouse[21] Giles CJ reviewed the authorities relating to abuse of process on the basis of re-litigation and said:
It is apparent from this brief review of the decisions that whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to re-litigate an issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are -
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 findings 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 re-litigated and the impact of the re-litigations upon the principle of finality of judicial determination and public confidence in the administration of justice; andg) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.[21] [1997] Aust Torts Reports 81-423 at 64,089
It is apparent to me from the list above, that the matters to which regard may be had when considering whether or not there will be an abuse of process, would be greatly assisted by findings of fact or at the very least certainty of the parameters of the factual dispute.
I adopt the comments made by the Full Court of the Federal Court of Australia in Re Alacoota[22] above, that - “The problems inherent in these procedures are exacerbated when the Court is asked to determine questions of law on incomplete facts, or on assumptions, or in circumstances which render it impossible to answer the questions in other than a hypothetical fashion”.
[22] see [29] above
In any event I am not persuaded that a case stated would necessarily be the appropriate means of quelling an interlocutory dispute of this nature. It seems to me that if there is an argument about whether the defences raised are an abuse of process, then, (preferably after the pleadings have closed), the appropriate course is for an application to be made to a judge in the trial division to strike out particular parts of the Defence.
Accordingly, I propose to dismiss the application.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 17 January 2017.
Associate:
Date: 17 January 2017
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