Grounded Construction Group Pty Ltd v Easy Stay Mining Accommodation Pty Ltd
[2017] WADC 136
•20 OCTOBER 2017
GROUNDED CONSTRUCTION GROUP PTY LTD -v- EASY STAY MINING ACCOMMODATION PTY LTD [2017] WADC 136
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 136 | |
| Case No: | CIVO:119/2017 | 12 OCTOBER 2017 | |
| Coram: | STAUDE DCJ | 20/10/17 | |
| PERTH | |||
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Applications to allow objection to debt appropriation orders, alternatively to cancel stay or amend orders, be dismissed Applications to suspend debt appropriation orders dismissed | ||
| PDF Version |
| Parties: | GROUNDED CONSTRUCTION GROUP PTY LTD EASY STAY MINING ACCOMMODATION PTY LTD MOUNT MORGANS WA MINING PTY LTD OCS INTERNATIONAL PTY LTD GROUNDED CONSTRUCTION PTY LTD |
Catchwords: | Debt appropriation orders Civil Judgment Enforcement Act 2004 Whether objection lodged out of time is valid Whether debt appropriation orders based on adjudication determination pursuant to Construction Contracts Act 2004 should be suspended pending judicial review Whether application to suspend is an abuse of process where Supreme Court has refused a stay of enforcement |
Legislation: | Civil Judgments Enforcement Act 2004 Construction Contracts Act 2004 Personal Property Securities Act 2009 (Cth) |
Case References: | Alliance Contracting Pty Ltd v James [2014] WASC 212 Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Easy Stay Mining Accommodation Pty Ltd v Faigen [2017] WASC 266 Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 Jackson v Goldsmith [1950] 81 CLR 446 Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222 Reichel v Magrath (1889) 14 App Cas 665 Sea Culture International Pty Ltd v Scoles [1991] FCA 523; (1991) 32 FCR 275 Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4 Stewart v Biodiesel Producers Ltd [2009] WASC 145 Willoughby v Clayton Utz [No 2] [2009] WASCA 29 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Judgment creditor
AND
EASY STAY MINING ACCOMMODATION PTY LTD
Judgment debtor
MOUNT MORGANS WA MINING PTY LTD
Third person
OCS INTERNATIONAL PTY LTD
Other person
- Judgment creditor
AND
EASY STAY MINING ACCOMMODATION PTY LTD
Judgment debtor
MOUNT MORGANS WA MINING PTY LTD
Third person
OCS INTERNATIONAL PTY LTD
Other person
- Judgment creditor
AND
EASY STAY MINING ACCOMMODATION PTY LTD
Judgment debtor
MOUNT MORGANS WA MINING PTY LTD
Third person
OCS INTERNATIONAL PTY LTD
Other person
- Judgment creditor
AND
EASY STAY MINING ACCOMMODATION PTY LTD
Judgment debtor
MOUNT MORGANS WA MINING PTY LTD
Third person
OCS INTERNATIONAL PTY LTD
Other person
Catchwords:
Debt appropriation orders - Civil Judgment Enforcement Act 2004 - Whether objection lodged out of time is valid - Whether debt appropriation orders based on adjudication determination pursuant to Construction Contracts Act 2004 should be suspended pending judicial review - Whether application to suspend is an abuse of process where Supreme Court has refused a stay of enforcement
Legislation:
Civil Judgments Enforcement Act 2004
Construction Contracts Act 2004
Personal Property Securities Act 2009 (Cth)
Result:
Applications to allow objection to debt appropriation orders, alternatively to cancel stay or amend orders, be dismissed
Applications to suspend debt appropriation orders dismissed
Representation:
CIVO 119 of 2017
Counsel:
Judgment creditor : Mr C Russell
Judgment debtor : Mr P Clifford
Third person : Mr J Ludlow
Other person : Mr P Clifford
Solicitors:
Judgment creditor : Lateral Legal
Judgment debtor : Doyles Construction Lawyers
Third person : HWL Ebsworth Lawyers
Other person : Doyles Construction Lawyers
CIVO 120 of 2017
Counsel:
Judgment creditor : Mr C Russell
Judgment debtor : Mr P Clifford
Third person : Mr J Ludlow
Other person : Mr P Clifford
Solicitors:
Judgment creditor : Lateral Legal
Judgment debtor : Doyles Construction Lawyers
Third person : HWL Ebsworth Lawyers
Other person : Doyles Construction Lawyers
CIVO 121 of 2017
Counsel:
Judgment creditor : Mr C Russell
Judgment debtor : Mr P Clifford
Third person : Mr J Ludlow
Other person : Mr P Clifford
Solicitors:
Judgment creditor : Lateral Legal
Judgment debtor : Doyles Construction Lawyers
Third person : HWL Ebsworth Lawyers
Other person : Doyles Construction Lawyers
CIVO 122 of 2017
Counsel:
Judgment creditor : Mr C Russell
Judgment debtor : Mr P Clifford
Third person : Mr J Ludlow
Other person : Mr P Clifford
Solicitors:
Judgment creditor : Lateral Legal
Judgment debtor : Doyles Construction Lawyers
Third person : HWL Ebsworth Lawyers
Other person : Doyles Construction Lawyers
Case(s) referred to in judgment(s):
Alliance Contracting Pty Ltd v James [2014] WASC 212
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Easy Stay Mining Accommodation Pty Ltd v Faigen [2017] WASC 266
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Jackson v Goldsmith [1950] 81 CLR 446
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222
Reichel v Magrath (1889) 14 App Cas 665
Sea Culture International Pty Ltd v Scoles [1991] FCA 523; (1991) 32 FCR 275
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4
Stewart v Biodiesel Producers Ltd [2009] WASC 145
Willoughby v Clayton Utz [No 2] [2009] WASCA 29
- STAUDE DCJ:
Introduction
1 In each of these matters a debt appropriation order was made on 14 August 2017. Each debt appropriation order was obtained for the purpose of enforcing an adjudication determination made pursuant to the Construction Contracts Act 2004 (CCA). Each determination is the subject of an application for judicial review in the Supreme Court on the grounds of jurisdictional error.
2 Four applications have been made in each matter:
1. The judgment debtor's application dated 31 August 2017 for an order that an objection to the debt appropriation order be allowed and (in the alternative) an order that debt appropriation order be cancelled, stayed or amended.
2. The other person's application dated 31 August 2017 for an order that an objection to the debt appropriation order be allowed and (in the alternative) an order that debt appropriation order be cancelled, stayed or amended.
3. The judgment debtor's application dated 31 August 2017 for an order suspending enforcement of the judgment debt.
4. The other person's application dated 31 August 2017 for an order that the debt appropriation order be suspended (pending the Supreme Court proceedings).
3 By their nature these matters call for expedition.
Background
4 It is not in dispute that in February this year the judgment debtor (Easy Stay) contracted with the third person (Mount Morgans) to construct a mining village at a mine site near Laverton (the construction project). Easy Stay engaged the judgment creditor (Grounded Construction) to do the construction work.
5 While Easy Stay disputes that its engagement of Ground Construction amounted to a construction contract for the purposes of the CCA, there is no dispute that from mid-February to early June 2017 Grounded Construction provided labour, materials and equipment which were invoiced on a cost plus 10% basis according to schedules of rates that were submitted to Easy Stay from time to time. A number of invoices were paid, but a dispute arose with respect to four. These were:
Invoice number | Date of invoice | Invoice amount |
1812 | 8 May 2017 | $339,877.36 |
1814 | 8 May 2017 | $124,680.91 |
1815 | 9 May 2017 | $286,652.06 |
1817 | 15 May 2017 | $245,793.36 |
6 On 28 June 2017 Grounded Construction served on Easy Stay four adjudication applications pursuant to the CCA. The applications were lodged with the Master Builders Association of WA. Mr Phillip Faigen was appointed as the adjudicator and, subsequently, over the period 22 - 25 July 2017, made four adjudication determinations in the amounts of $350,373.36, $127,995.91, $290,595.73 and $215,053 (as amended).
7 In each determination the adjudicator allowed the amount claimed in the disputed invoice, interest thereon, to the date of the determination and the costs of the adjudication which were ordered to be paid by Easy Stay.
8 On 31 July 2017 Easy Stay brought an application for judicial review of each of the four determinations. Easy Stay sought relief by a writ of certiorari, a declaration of invalidity, and an injunction restraining Grounded Construction from enforcing them: see Easy Stay Mining Accommodation Pty Ltd v Faigen [2017] WASC 266 (Allanson J).
9 The determinations were filed in this court on 9 August 2017, thus enabling Grounded Construction, by virtue of s 43 of the CCA, to enforce them as judgment debts.
10 On 10 August 2017 Grounded Construction applied in each matter, pursuant to s 49 of the Civil Judgments Enforcement Act 2004 (CJEA), for a debt appropriation order against Mount Morgans on the basis that it owed an available debt to Easy Stay.
11 On 14 August 2017 debt appropriation orders were issued accordingly. Each debt appropriation order ordered Mount Morgans to pay to Grounded Construction the amount it owed Easy Stay in satisfaction of the judgment debt.
12 Pursuant to s 54(1) of the CJEA, a third person who is served with a debt appropriation order may object to the order on one or more of three grounds including, relevantly, that a person other than the judgment debtor and the judgment creditor owns or has a claim on, or an interest in, the appropriated debt. By s 54(2), the objection must be in writing and state the grounds on which it is made and the facts that support the grounds and be lodged at the court within seven days after the day on which the third person is served with the debt appropriation order.
13 On 23 August 2017 HWL Ebsworth wrote to the court on behalf of Mount Morgans, referring to the four debt appropriation orders, stating, relevantly:
Our client gives notice pursuant to section 54(2) of the Civil Judgments Enforcement Act 2004 WA (the Act) that it objects to the orders.
The grounds for its objection are that a person other than the judgment debtor and judgment creditor has a claim on or interest in the appropriated debt (section 54(1)(a) of the Act).
The facts that support the grounds are that our client has received notice on 22 August 2017 and further notice on 23 August 2017 from OCS International Pty Ltd that it has a claim on or interest in the appropriated debt.
14 It is common cause that the letter was not filed at the court but was faxed after the close of business on 23 August 2017, being the seventh day after service of the debt appropriation orders on Mount Morgans.
15 Section 55 of the CJEA provides that a judgment creditor who is served with an objection may allow the objection. If the judgment creditor does not allow the objection within seven days, the third person, the judgment debtor or any other person whom the third person claims owns or has a claim on, or interest in, the appropriated debt, may apply to the court for an order that the objection be allowed.
16 By letter dated 28 August 2017, addressed to the principal registrar, Lateral Legal, on behalf of Grounded Construction, contended that the purported notice of objection given on behalf of Mount Morgans did not comply with s 54(2) of the CJEA in that it was not lodged within seven days after the day on which the third person was served with the debt appropriation orders (16 August 2017) and did not contain the facts that supported the alleged ground of objection.
17 On 25 August 2017 Allanson J heard Easy Stay's application for an injunction to restrain enforcement of the determinations. In his Honour's written reasons for decision delivered on 30 August 2017, his Honour held that Easy Stay had an arguable case with respect to jurisdictional error, but he rejected its application for a stay of the enforcement proceedings: Easy Stay Mining Accommodation Pty Ltd v Faigen. His Honour's reasons were expressed at [40] - [43] as follows:
In my opinion, both the balance of convenience and wider discretionary considerations require the court to have regard to matters going beyond the two parties.
An important factor is that the scheme of the Construction Contracts Act is clearly directed to ensuring the flow of funds in projects. The object of the scheme in pt 3 div 3 of that Act is to determine payment disputes arising out of construction contracts 'fairly and as quickly, informally and inexpensively as possible' (s 30), with the primary aim of keeping the money flowing down the contractual chain: see Perrinepod Pty Ltd v Georgiou Building Pty Ltd [88]. In Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91 [55], Pullin JA (Newnes and Murphy JJA) said:
'The broad purpose of the Act, insofar as it relates to payment disputes, is to ensure that, in construction contracts, progress claims are paid on time and that principals obliged to pay do not act as their own judge and jury and hold up payment on their own assertion that they have a defence warranting refusal to pay. It is a 'pay now, argue later' system: Multiplex Constructions Pty Ltd v Lui Kans [2003] NSWSC 1140 [96] (Palmer J), with the primary aim of keeping the money flowing by enforcing timely payment: Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217; (2011) 43 WAR 319 [87]. If a payment dispute arises, then the Act provides for a system of rapid and summary adjudication which is conducted without any oral hearing. If the adjudicator, having received written submissions, makes a determination that the payment has to be made, then that determination gives rise to a debt 'presently due' and payable by the principal: see Georgiou Building v Perrinepod [2012] WASC 72 [32].'
Neither party can be adequately protected from the consequences should that party be unsuccessful at this stage, but ultimately succeed. On balance, I believe that the better course is to not restrain Grounded Construction from continuing in its attempt to enforce its judgments. That is more consistent with the objects of the Construction Contract Act - particularly now that leave is no longer required to enforce a determination.
I considered the possibility of requiring Easy Stay to pay the disputed amount into court as a condition of any restraint. Easy Stay seemed ready to accept payment of the amount subject to the debt appropriation order, although it was unclear whether that was to be from its own funds or from any appropriated debt. Ultimately, however, I am not satisfied that tying up the funds in a court order is consistent with the objects of the Construction Contracts Act.
18 Subsequently, Easy Stay filed the four applications that are now before the court for determination. The applications came before Davis DCJ on 11 September 2017. On that occasion, her Honour directed Mount Morgans to pay the amount of the appropriated debt (in total $984,018), less deductable expenses, into a bank suspense account until further order of the court, and ordered that the debt appropriation orders be suspended until 9 October 2017, the date to which the matters were adjourned for directions. By reason of orders made by me on 9 and 12 October 2017, the debt appropriation orders remain suspended until 4.00 pm this day.
The objection to the debt appropriation order
19 Pursuant to s 55(2) of the CJEA, Easy Stay and OCS have applied for an order that the objection be allowed.
20 Mount Morgans' objection was based on OCS's claim that it has an interest in the debt owed to Easy Stay by virtue of having registered a security charge over the assets of Easy Stay pursuant to the Personal Properties Securities Act 2009 (Cth) (PPSA). The factual basis of OCS's claim is not disputed for the purposes of the applications. OCS is related to Easy Stay to the extent that it has the same registered office, principal place of business, director and secretary.
21 A threshold question is whether the objection lodged by Mount Morgans is valid. The debt appropriation orders having been served on 16 August 2017, any objection was required to be lodged by 23 August 2017. The objection was filed electronically by fax after 4.00 pm on 23 August 2017 (affidavit of Paul Natoli sworn 18 September 2017, annexure PN 41).
22 Rule 19 of the District Court Rules 2005 provides that a person may file a document by fax. Rule 20 otherwise provides that a document may be filed electronically by means of the court's website. By r 19(6), a document filed by fax at a registry is taken to have been filed, if the document is received before 4.00 pm on a day when the registry is open for business, on that day, and otherwise, on the next day when the registry is open for business. A similar rule applies to documents filed electronically: r 20(5).
23 The court's eLodgement portal indicates that the letter of HWL Ebsworth setting out Mount Morgans' objection to each debt appropriation order was lodged on 24 August 2017, that is, the day after the final day for lodgement. Grounded Construction contends that 'lodged at the court within 7 days' means filed at the court within that period in accordance with the provisions of the rules. It contends that if the objection is not compliant with s 54, then it is invalid and cannot be the subject of an application pursuant to s 55(2). Easy Stay contends that substantive compliance with s 54(2) has been made and that the court should deal with the objection on its merits. Mount Morgans, although taking a neutral position on the objection, submits that there is a material distinction to be drawn between lodging an objection for the purposes of s 54 and filing a document for the purposes of the District Court Rules. None of the submissions of the parties on this point identified any authorities on point.
24 No application for an extension of time has been made. I am not required, therefore, to consider whether the court has such a power, but in the absence of any statutory provision conferring such power I would think not.
25 I am not satisfied that the word 'lodge' should be given any different meaning from 'file'. In this respect, I note that the New Shorter Oxford Dictionary relevantly defines the verb 'lodge' to mean 'deposit in court or with an official, a formal statement of (a complaint, objection, etc)'. I have not been made aware of any authority that would support the view that there is any semantic difference between the words that would displace the rules applicable to the filing of documents.
26 It is my conclusion that the objection was not valid because it was not lodged within seven days of service of the debt appropriation orders, and therefore cannot be subject to an application that it be allowed. It is appropriate, however, that I deal with the objection provisionally, on its merits.
Merits of the objection
27 For the purpose of this part, I will address the objection as it is maintained by OCS as a creditor of Easy Stay. The factual basis is set out in the affidavit of Stephen Laverick sworn 18 September 2017. Mr Laverick is the director of OCS and Easy Stay. He stated that OCS purchased an accommodation village from BHP Billiton Worsley Alumina Pty Ltd in 2012. Following the making of a contract between Easy Stay and Mount Morgans in February of this year, OCS sold the buildings and equipment it had purchased from BHP to Easy Stay for $5,739,000. OCS invoiced Easy Stay for $2,739,000 on 27 June 2017 and for a further sum of $3 million dollars on 1 August 2017.
28 On 1 August 2017 Easy Stay gave a general security charge to OCS, being a fixed charge, with respect to certain property and a floating charge over the secured property generally, as defined in the deed of charge. The charge was registered on the Personal Property and Securities Register on 17 August 2017.
29 Mr Laverick deposed that Easy Stay had not made any payment to OCS for the purpose of the buildings and equipment and that OCS claimed ownership in that property until payment of the purchase price.
30 This basis for objection is answered by reference to s 74(1) of the PPSA which provides:
The interest of an execution creditor in collateral has priority over any security interest in the same collateral that is not perfected at the time covered by subsection (4) (even if such security interest is later perfected).
31 Collateral is defined by s 9 to mean personal property to which a security interest is attached. A security interest is defined by s 12 to be 'an interest in personal property provided for in a transaction that, in substance, secures the payment or performance of an obligation'. The debt appropriation order in each case was made on 14 August 2017 by which time the security interest claimed by OCS, by virtue of the general security charge, had not been perfected as it had not been registered: s 21(2)(a), PPSA.
32 In oral submissions, counsel for Easy Stay and OCS eschewed reliance on the security interest argument, but submitted that the court should deal with OCS's application on the basis that at the time of the making of the debt appropriation orders OCS and Grounded Construction were unsecured creditors of Easy Stay. The submission was aimed at establishing some basis for the exercise of the court's discretion under s 103 of the CJEA to amend or cancel the debt appropriation order in each case because the payment of the appropriated debt to Grounded Construction by Mount Morgans would be preferential. OCS argued that the discretion conferred by s 103 enabled the court to take OCS's position as an unsecured creditor into account by fashioning an order that would effectively amount to a pari passu distribution between Grounded Construction and OCS of the amount owed to Easy Stay by Mount Morgans.
33 This submission cannot be accepted. OCS is not a judgment creditor. The court, in making a debt appropriation order as a means of enforcing a judgment debt, or, indeed, in issuing any other form of enforcement under the CJEA, is not concerned with the interests of other creditors of the judgment debtor. If an enforcement proceeding leads to insolvency, then other consequences may flow. In this case, however, I am satisfied that it is not a proper ground of objection on the part of OCS that it too is owed money by Easy Stay.
34 In any event, by virtue of s 74 of the PPSA, Grounded Construction, as the judgment creditor, has priority. For completeness, construing the wording of s 74 in the context of s 73, which deals with priority between security interests and declared statutory interests, I am unable to accept OCS's counsel's submission that the term 'execution creditor' means a secured execution creditor. Section 74 is unambiguous.
Application for suspension order
35 The threshold issue is whether the applications made by suspension of the debt appropriation order in each case by Easy Stay and OCS respectively amount to an abuse of process in circumstances where the Supreme Court has heard and dismissed an application for a stay of enforcement proceedings with respect to the determinations.
36 Notwithstanding the concession by Grounded Construction that the grounds were arguable, counsel for Easy Stay went to some lengths to re-argue the grounds for the application for judicial review that were put before Allanson J. Counsel sought to demonstrate, firstly, that the adjudication in each case was incompetent by reason of jurisdictional error and, accordingly, could not ground a debt appropriation order and, secondly, that the application for judicial view had such good prospects of success that, for the purposes of s 15 of the CJEA, special circumstances could be shown that justified the suspension.
37 With respect to the first point, I am of the view that in determining whether a debt appropriation or other enforcement order should be suspended is the court is not required to be satisfied of the correctness or validity of the judgment. Leave is no longer required in order to file a determination made pursuant to the CCA for the purpose of enforcement. In this case, only the Supreme Court, by judicial review, can invalidate the determinations. Unless, and until, that occurs, they stand as enforceable judgments of this court.
38 As to the second, the reprise of Easy Stay's argument that the determinations are infected with jurisdictional error and must be set aside, does not demonstrate more than an arguable case. I am certainly not persuaded on the balance of probabilities that the adjudicator erred by finding that there was a construction contract, or that the adjudicator made a jurisdictional error by not providing reasons sufficient to meet his obligation pursuant to s 36(d) of the CCA, or by failing to find proof that the work claimed for was reasonably done, or done in reasonable time, or done according to agreed or reasonable rates and prices. It is unnecessary for me to say more and it would be inappropriate to do so. Those questions are matters for determination by the Supreme Court. It has been decided elsewhere that the grounds for judicial review are arguable (so as to have reasonable prospects of success), as Grounded Construction concedes.
39 The question, then, is whether Easy Stay's invitation to this court to find special circumstances to justify a suspension of the debt appropriation orders under s 15 is an abuse of process as it involves a re-litigation of the claim for interlocutory relief determined by Allanson J.
40 Section 15(3) of the CJEA provides that a suspension order may only be made if there are special circumstances that justify doing so. As Allanson J found, the principles that apply to a s 15 application are the same as those that apply to the exercise of the court's inherent jurisdiction to stay enforcement of a judgment: Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308; Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203; and Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222.
41 In Ladang Jalong (Australia) Pty Ltd,McLure JA stated [3] – [4]:
The principles applicable to the exercise of the discretion under s 15 of that Act are, in my view, materially the same as those that govern the disposition of an application under the Supreme Court Act 1935 and Supreme Court Rules1971 which give the Court of Appeal the power to grant a stay of execution. Those principles are conveniently collected in the Full Court decision of Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308. They are, firstly, that the successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal. Secondly, it is for the applicant for a stay to move the Court to a favourable exercise of its discretion. Thirdly, it will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
A central issue is whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation. If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process has reasonable prospects of success. If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant.
42 The contest before Allanson J was between Easy Stay and Grounded Construction. That OCS was not represented at that hearing is not relevant. OCS, although it has purported to do so, cannot seek a suspension order as it is not 'a person against whom a judgment is given' (s 15(1)).
43 Incidentally, with reference to Ladang, Easy Stay's counsel observed that it dealt only with a stay pending appeal and was silent on judicial review for jurisdictional error. The submission was along the lines that a setting aside for jurisdictional error had different consequences from a setting aside of a judgment for legal or factual error. While an adjudication pursuant to the CCA is a different process from a trial of a civil litigation, I cannot see that there is any distinction that would render the principles in that decision inapposite to this case. In terms of enforcement, the legal consequences of a judgment after trial and the registration of a determination are the same. Easy Stay's contention is that that jurisdictional error would nullify the determination in its entirety. Beech J commented on this consequence in Alliance Contracting Pty Ltd v James [2014] WASC 212, [86] - [88]. That potential outcome does not, in my view, mandate a different approach to the exercise of the discretion to stay enforcement.
44 In any event, I am satisfied that the question before Allanson J was essentially the same as the question before me. Nothing has been added to the complexion of the matter that would indicate any material change of circumstances. The issue for determination is the same. This case involves the same factual matrix and the same claim for relief.
45 Easy Stay addressed Grounded Construction's objection to it being given a second opportunity to apply for a stay on the basis that it raised a cause of action estoppel. Reference was made to Stewart v Biodiesel Producers Ltd [2009] WASC 145, in which Beech J held, applying Willoughby v Clayton Utz [No 2] [2009] WASCA 29, that in deciding whether a res judicata or cause of action estoppel arose the court was confined to the earlier court's formal order and the pleadings. A cause of action estoppel arises where the cause of action litigated earlier had merged in the judgment: [9]. As I understood the submission, which was barely developed, it was that an identity of issue could not be shown.
46 Grounded Construction's contention is not based on res judicata or cause of action estoppel. Rather, it raises an issue estoppel to demonstrate an abuse of process. In considering whether an issue estoppel has arisen, it is clear that the court is entitled to have regard to the reasons of the earlier decision to see what issues were raised and decided: Jackson v Goldsmith [1950] 81 CLR 446, 467 (Fullagar J). The matter before Allanson J was not the trial of a cause of action, but an interlocutory application for discretionary relief.
47 I accept as authoritative the statement of the principles of abuse of process in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404, 414 (Hunt J at CL). One such principle is that
all of the circumstances of the earlier case may be considered, and there can be no definitive statement of the circumstances which will inevitably lead to a finding of abuse of process.
48 The principles of abuse of process are not confined to the doctrines of res judicata, issue estoppel and Anshunestoppel. The court can invoke those principles to prevent attempts to re-litigate an issue that has, in substance, been litigated and determined in earlier proceedings or where, even if an estoppel is not established, the proceedings in question are unfairly burdensome or unjustifiably oppressive: Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4 (Buss JA [11], Murphy JA [118]).
49 French J put it this way in Sea Culture International Pty Ltd v Scoles [1991] FCA 523; (1991) 32 FCR 275:
The possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed. ... An attempt to litigate in the court a dispute or issue which has been resolved in earlier litigation in this or another court or tribunal may also, according to the circumstances, constitute an abuse of process even if not attracting the doctrines of res judicata or issue estoppel.
Underlying the power that courts have assumed to stay or dismiss proceedings for abuse of process is a policy of preventing waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. There is, in my opinion, another element to be considered and that is the necessity to maintain confidence in and respect for the authority of the courts.
50 To use the words of Lord Halsbury LC in Reichel v Magrath (1889) 14 App Cas 665, 'it would be a scandal to the administration of justice' if this court were to grant relief that the Supreme Court has refused.
51 For all of these reasons, I would dismiss each application.
0
14
3