Guiseppina Dissidomino by her next friend Maria Rosa Dissidomino v Butcher Paull & Calder (A Firm)
[2005] WASCA 210
•16 NOVEMBER 2005
GUISEPPINA DISSIDOMINO by her next friend MARIA ROSA DISSIDOMINO -v- BUTCHER PAULL & CALDER (A FIRM) [2005] WASCA 210
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 210 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:85/2004 | 26 JULY 2005 | |
| Coram: | WHEELER JA ROBERTS-SMITH JA MILLER AJA | 16/11/05 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GUISEPPINA DISSIDOMINO by her next friend MARIA ROSA DISSIDOMINO BUTCHER PAULL & CALDER (A FIRM) |
Catchwords: | Practice and procedure Res judicata Whether appellant estopped from proceeding with action Identity of interest Identity of subject matter Role of next friend Anshun estoppel |
Legislation: | Interpretation Act 1984 (WA), s 37(1)(c) Rules of the Supreme Court 1971 (WA), O 18 r 6, O 21 r 5 |
Case References: | Butcher Paull & Calder v Dissidomino, unreported; DCt of WA; Library No D980122; 8 May 1998 Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 Jackson v Goldsmith (1950) 81 CLR 446 Mercer Alloys Corporation v Rolls Royce Ltd [1971] 1 WLR 1520 NSW Insurance Ministerial Corporation v Abualfoul (1999) 94 FCR 247 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Ramsay v Pigram (1967) 118 CLR 271 Singh v Atombrook Ltd [1989] 1 WLR 810 Trawl Industries of Australia Pty Ltd (In Liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 Ashmore v British Coal Corporation [1990] 2 QB 338 Biggar v McLeod [1978] 2 NZLR 9 Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755 Davey v Ron Farris Real Estate Pty Ltd [2000] WASCA 58 Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (In Liq) (1993) 43 FCR 510 House of Spring Gardens Ltd v Waite [1991] 1 QB 241 Johnson v Gore Wood & Co [2002] 2 AC 1 Kuligowski v Metrobus (2004) 78 ALJR 1031 Nana Ofori Atta II v Nana Abu Bonsra II [1958] AC 95 Papua New Guinea Dockyard Ltd v Adams (2005) 215 ALR 742 Rahme v Commonwealth Bank of Australia, unreported; NSWCA; 20 December 1991 Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 Tiufino v Warland (2000) 50 NSWLR 104 VACC Insurance Ltd v BP Australia Ltd (1999) 47 NSWLR 716 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GUISEPPINA DISSIDOMINO by her next friend MARIA ROSA DISSIDOMINO -v- BUTCHER PAULL & CALDER (A FIRM) [2005] WASCA 210 CORAM : WHEELER JA
- ROBERTS-SMITH JA
MILLER AJA
- Appellant
AND
BUTCHER PAULL & CALDER (A FIRM)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : COMMISSIONER ODES QC
Citation : GUISEPPINA DISSIDOMINO by her next friend MARIA ROSA DISSIDOMINO -v- BUTCHER PAULL & CALDER (A FIRM) & ANOR [2004] WASC 122
(Page 2)
Catchwords:
Practice and procedure - Res judicata - Whether appellant estopped from proceeding with action - Identity of interest - Identity of subject matter - Role of next friend - Anshun estoppel
Legislation:
Interpretation Act 1984 (WA), s 37(1)(c)
Rules of the Supreme Court 1971 (WA), O 18 r 6, O 21 r 5
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr G R Hancy
Respondent : Mr G H Murphy SC & Mr S F Popperwell
Solicitors:
Appellant : Hoffmans
Respondent : Pynt & Partners
Case(s) referred to in judgment(s):
Butcher Paull & Calder v Dissidomino, unreported; DCt of WA; Library No D980122; 8 May 1998
Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510
Jackson v Goldsmith (1950) 81 CLR 446
Mercer Alloys Corporation v Rolls Royce Ltd [1971] 1 WLR 1520
NSW Insurance Ministerial Corporation v Abualfoul (1999) 94 FCR 247
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Ramsay v Pigram (1967) 118 CLR 271
Singh v Atombrook Ltd [1989] 1 WLR 810
(Page 3)
Trawl Industries of Australia Pty Ltd (In Liq) v Effem Foods Pty Ltd (1992) 36 FCR 406
Case(s) also cited:
Ashmore v British Coal Corporation [1990] 2 QB 338
Biggar v McLeod [1978] 2 NZLR 9
Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755
Davey v Ron Farris Real Estate Pty Ltd [2000] WASCA 58
Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (In Liq) (1993) 43 FCR 510
House of Spring Gardens Ltd v Waite [1991] 1 QB 241
Johnson v Gore Wood & Co [2002] 2 AC 1
Kuligowski v Metrobus (2004) 78 ALJR 1031
Nana Ofori Atta II v Nana Abu Bonsra II [1958] AC 95
Papua New Guinea Dockyard Ltd v Adams (2005) 215 ALR 742
Rahme v Commonwealth Bank of Australia, unreported; NSWCA; 20 December 1991
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198
The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353
Tiufino v Warland (2000) 50 NSWLR 104
VACC Insurance Ltd v BP Australia Ltd (1999) 47 NSWLR 716
(Page 4)
- WHEELER JA:
History: The negligence action and costs action
1 This is an appeal from a Commissioner of this Court determining certain preliminary issues. Briefly, the background is as follows. The plaintiff was born at St John of God Hospital Subiaco ("the hospital") in July 1962. She suffers from cerebral palsy, as a result of which she is unable to manage her own affairs. In this action, she sues the defendant by her next friend, Mrs Dissidomino, who is her mother and has since her birth been her principal carer. The defendant is a firm of solicitors ("the solicitors").
2 The solicitors were retained by Mrs Dissidomino in 1985 to advise as to whether the plaintiff had a claim for damages for negligence against the hospital and against a doctor who was the general practitioner who had delivered the plaintiff. On the instructions of the plaintiff by her next friend, the solicitors instituted an action against the hospital and the doctor claiming damages which were allegedly suffered in consequence of their negligence at the birth of the plaintiff. After a 10-day trial, which was apparently confined to issues of liability, Charters DCJ in April of 1993 dismissed that action ("the negligence action").
3 The plaintiff by her next friend then instructed the solicitors to appeal against the judgment in the negligence action. The appeal was not entered for hearing within time, with the result that the solicitors applied to the Full Court for an extension of time and the hospital and the doctor applied at the same time to dismiss the appeal for want of prosecution. In April 1994, the Full Court dismissed the appeal for want of prosecution. As part of its consideration of that issue, the Full Court considered the merits of the appeal and held that on the basis of the evidence led at trial, there was no likelihood of the appeal succeeding.
4 On 21 July 1994, the solicitors then sued Mrs Dissidomino to recover a little over $58,000 in legal fees incurred in the conduct of the negligence action and the appeal ("the costs action"). Mrs Dissidomino defended the costs action. I will return to the precise pleadings in that action shortly, because they are of importance. However, for the moment it is enough to note that in her defence she averred that the solicitors were not entitled to costs because of their negligent conduct of the negligence action. She also counterclaimed for damages in the sum of $100,000, which sum she alleged would have been obtained had the solicitors not given negligent advice in relation to an offer of settlement made during the negligence action.
(Page 5)
5 In the course of the costs action, the solicitors brought two applications for summary judgment, and Mrs Dissidomino swore affidavits dated 10 October 1994 and 23 February 1995 in opposition to those applications. The first summary judgment hearing was adjourned, to enable an application by Mrs Dissidomino to the Supreme Court to set aside the costs agreement entered into between herself and the solicitors. That application is now of significance only to explain why the amount claimed by the solicitors altered over time. On 2 June 1995, Registrar Kingsley in the District Court upheld the solicitors' application for summary judgment in relation to counsel fees, but otherwise dismissed the application because of pending taxation proceedings. At a hearing preliminary to a taxation sought in this Court, Registrar S Boyle was advised by Mrs Dissidomino's then solicitors that in the taxation process, she proposed to submit in respect of almost every item that the charge was unreasonably incurred and unnecessary because of the solicitors' negligent conduct in the negligence action and the appeal. The bill was therefore remitted to the District Court.
6 In the District Court on 2 April 1997, Registrar Kingsley upheld in a number of respects the second application for summary judgment, but granted Mrs Dissidomino leave to defend in relation to the allegation relating to negligent advice in respect of an offer of settlement. Mrs Dissidomino appealed that decision and that appeal was dismissed.
7 The costs action was then tried in April 1998 and Commissioner Reynolds delivered reasons (Butcher Paull & Calder v Dissidomino, unreported; DCt of WA; Library No D980122; 8 May 1998) upholding the solicitors' claim and dismissing Mrs Dissidomino's defence of negligence and/or breach of retainer, which relied upon the allegations in relation to the offer of settlement. Judgment was entered in favour of the solicitors. The orders made by Commissioner Reynolds related only to the solicitors' claim. The orders, dated 8 May 1998, were:
"1 The defendant pay the plaintiff a sum being the excess of the plaintiff's fees and disbursements on District Court action no. 6348 of 1991 to be taxed pursuant to the Legal Practitioners Act 1893 (as amended) over the sum of $16,037.00.
2. The defendant do pay the plaintiff interest on the sum at such rate as is applicable from time to time pursuant to Section 32 of the Supreme Court Act 1935 (as amended) from 22nd August 1996.
(Page 6)
- 3. The defendant do pay the plaintiff's costs of the action to be taxed.
4. For the purposes of taxation as referred to in paragraph 1 of this order, the value of District Court action no 6348 of 1991 be $1,200,000.00."
8 On 25 March 2003, Mrs Dissidomino's counterclaim was dismissed by consent. There is no evidence of how that came about.
The present proceedings
9 In these proceedings, the plaintiff by her next friend commenced an action in April 1999 alleging the solicitors were negligent in their conduct of the negligence action and the appeal. The solicitors joined Mr B Kakulas QC, leading counsel at the negligence action for the plaintiff, as third party, but the third party is irrelevant for the purposes of the preliminary issues.
10 The substituted statement of claim in the present proceedings alleges that the solicitors were negligent in preparation for and conduct of the negligence action. There are various particulars of negligence, including a failure to plead certain "causes of action" in the negligence action (which are not strictly causes of action, but are particulars of negligence on the part of the doctor and the hospital which were not pleaded). It is alleged that the solicitors were negligent in failing to become aware of, or alternatively to use, the contents of a letter written by one doctor to another dated March 1967 concerning the plaintiff ("the Irabeena letter"). The significance of that letter is that it is said that, had its contents been brought to the notice of the various medical experts consulted by the plaintiff their advice and/or evidence would have been more favourable. It is alleged that the solicitors should have been aware that an MRI scan ought to have been obtained; it is alleged that had such a scan been obtained, it would have revealed brain damage which was inconsistent with the defences raised by the doctor and the hospital in the negligence action and that such a scan would further have had the effect of excluding two alternative competing causes of the plaintiff's cerebral palsy.
11 In addition to the allegations of negligence in the conduct of the negligence action, the plaintiff also alleges negligence in the conduct and prosecution of the appeal. As well as the failure to conduct and prosecute the appeal timeously, there are allegations that the solicitors failed to adduce before the Full Court the fresh evidence of the Irabeena letter, and a failure to obtain expert medical interpretation of an MRI scan of the
(Page 7)
- plaintiff's brain which was performed in November 1993 (some seven months after the date of judgment in the negligence action). As a result of the solicitors' negligence in the conduct and prosecution of the negligence action and/or the appeal, it is alleged that the plaintiff has lost the opportunity of recovering damages from the doctor and/or the hospital.
The preliminary issue
12 On the basis of an agreed statement of facts, the parties asked the Court whether the plaintiff was estopped from proceeding with its action against the solicitors, or whether the plaintiff's action should be struck out or permanently stayed as an abuse of process. There was a further issue raised by way of preliminary issue in relation to advocates' immunity, which was not before the Commissioner.
The Commissioner's decision
13 In the Commissioner's view, nothing turned in the present case on the distinction between res judicata and issue estoppel. In either case, it was his view that it was necessary in order to raise res judicata or issue estoppel successfully, that the earlier litigation determined the same question as that raised in the later litigation and that the parties to the later litigation were either parties to the earlier litigation or their privies. Those were the matters which were in dispute between the parties.
14 The Commissioner was of the view that there was some difficulty as to the precise test to be applied in determining whether one party has privity of interest with another. He referred to the decision of Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 and the observation by Megarry VC at 515 concerning the degree of identity required for one party to be a privy of another, which reads:
"I do not say that one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party. It is in that sense that I would regard the phrase 'privity of interest'."
15 The Commissioner suggested that, in Trawl Industries of Australia Pty Ltd (In Liq) v Effem Foods Pty Ltd (1992) 36 FCR 406, Gummow J had "preferred" the narrower test laid down in Ramsay v Pigram (1967) 118 CLR 271 and Jackson v Goldsmith (1950) 81 CLR 446, to the effect
(Page 8)
- that in order to establish privity of interest, the privy must "claim under or through" the person of whom he is said to be a privy. With respect, it would seem to me that so far as Australian courts are concerned, there is no issue of preference which arises. As Gummow J recognised, those decisions of the High Court are binding, whatever somewhat more liberal view of privity may be taken in other jurisdictions.
16 The Commissioner's finding on this issue was set out at [37] and [38] of his reasons for decision. Those paragraphs read:
"It will be seen from the above that the interests of the plaintiff and the next friend are inextricably bound. Both had a direct and identical interest in the successful outcome of the negligence action, the plaintiff for the damages recoverable, the next friend for the costs recoverable, while the failure of that action would similarly have detrimental effects on both. To argue, as counsel for the plaintiff did, that the plaintiff had no interest in the costs action is, in my view, fallacious, as the next friend had the right to be indemnified for those costs from the estate (if any) of the plaintiff. The costs action was the direct result of the next friend's failure to pay the costs of the unsuccessful prosecution of the negligence action on behalf of the plaintiff. In a sense, the next friend was and still is the alter ego of the plaintiff, who but for her legal incapacity, would personally have been the party suing in the negligence action and these proceedings and being sued in the costs action. When the next friend retained the services of the firm, she did so in furtherance of her office in order to enable the plaintiff to prosecute her claim. That contract with the firm was the source and origin of an identical duty of care which the firm owed to both the plaintiff (in tort) and the next friend (in contract and tort).
It is unnecessary for the purposes of this action to decide which of the two tests referred to above is the preferable one because I am of the view that whatever test is applied, be it the wider test propounded in Gleeson or the one set out in Ramsay, the necessary privity of interest between the plaintiff and her mother in the costs action and in these proceedings has been satisfied. If in substance and in law, Mrs Dissidomino is not in fact the alter ego of the plaintiff in those actions (as I find she is) either there is between them 'a sufficient degree of identification between the two to make it just to hold that the
(Page 9)
- decision to which one was party should be binding in proceedings to which the other is party' (Gleeson test) or, on the Ramsay test, I am of the opinion for the reasons stated above that the one was claiming 'under or through' the other."
17 Turning then to the question of identity of subject matter, he found that there was identity of subject matter or that alternatively the principles enunciated in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 required that the issues of negligence sought to be raised in the present proceedings should have been brought forward and ventilated in the costs action. In my view, the Commissioner was correct in his conclusion concerning identity of subject matter, but it is convenient to consider that question after more detailed examination of what was in issue in the earlier proceedings. The appeal revolved largely, although not entirely, around the question of privity, and it is to that issue that I turn first.
Was the plaintiff in this action a privy of Mrs Dissidomino in the costs action?
18 Despite the practical analysis of the intermixed interests of the plaintiff and Mrs Dissidomino set out in the reasons of the Commissioner quoted above, it is my view that the history of the proceedings demonstrates that the answer to this question must be in the negative. On a simple analysis, in the negligence action it was the plaintiff who sued, while in the costs action Mrs Dissidomino was sued and (subject to the analysis which I think it is now necessary to undertake) the plaintiff was not a party. My reasons for that conclusion are as follows.
19 The history of the office of "next friend" was usefully summarised by Sackville J in NSW Insurance Ministerial Corporation v Abualfoul (1999) 94 FCR 247. At [27] - [29], his Honour summarised the position in the following terms (citations omitted):
" … Under the general law, because of an infant’s inability to bind himself or herself, or to incur liability for costs, the infant was incapable of bringing an action without the assistance of some other person responsible to the court for the proper conduct of the suit. This person was known as the next friend (or 'prochein amy' in the earlier cases), apparently because he or she was usually a near relative of the plaintiff. If an action was instituted by an infant without a next friend, the defendant could apply to have the action dismissed. The limitation on the capacity of infants did not extend to matters of substantive
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- entitlement or liability, since at common law an infant could sue and be sued. The limitation on capacity was procedural.
One reason for requiring an infant plaintiff to sue by a next friend was so that there would be a person answerable to the defendant for the costs of the litigation, although the defendant could waive this benefit. The next friend was liable for all costs incurred in the actions brought by the infant, until the infant attained his or her majority. The next friend could be attached for the non-payment of the costs of an action in which the defendant obtained a verdict. However, the next friend was ordinarily entitled to recover the costs from the infant's estate (if there was one), provided he or she acted bona fide.
The next friend was regarded as an officer of the court appointed to safeguard the interests of the infant. The conduct of the proceedings was in the hands of the next friend. The next friend was not, however, a party to the action. The next friend derived his or her authority from the court, not the infant, and could be removed if, for example, he or she acted improperly or had an interest adverse to that of the infant."
20 The most significant features of that summary for present purposes are that the next friend is liable for all costs incurred in actions brought by the infant, although ordinarily entitled to recover those costs from the infant's estate, and that the next friend is not, however, a party to the infant's action.
21 In the ordinary course of proceedings, then, one would analyse the various actions between these parties in the following way. The negligence action was an action brought by the plaintiff. The appeal was likewise an appeal brought by the plaintiff. In relation to each of those matters, Mrs Dissidomino was the client of the solicitors she instructed to act in those matters, and she personally was liable for their costs, although not a party to either proceeding. The costs action, however, was an action against her, and not an action against the plaintiff.
22 That analysis would be an end of the matter were it not for the peculiar course taken by both parties in the costs action. The course which they took gives rise to the question whether the counterclaim in the costs action should now be regarded as having been an action brought by Mrs Dissidomino in her own right in which she quite impermissibly raised the question of damages to the plaintiff, and in which, although that issue
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- was dealt with, it should be considered as a nullity for want of proper party; or whether in the alternative the counterclaim should properly be characterised as being a claim by the plaintiff, brought by Mrs Dissidomino as her next friend, in which there was an inadvertent but curable failure to add the plaintiff formally as a party. That does not turn upon any questions of privity, but upon an understanding of what the costs action was about and the course which it took.
The costs action
23 The statement of claim in the costs action as amended at trial on 21 April 1998 pleaded that the plaintiff in that action was a firm of solicitors instructed by Mrs Dissidomino "to institute on [Mrs Dissidomino's] behalf District Court Action No 6348 of 1991 and Supreme Court Action FUL 84 of 1993 and represent [Mrs Dissidomino] in those proceedings" (par 1). Paragraph 2 pleaded that the solicitors carried out work and incurred disbursements in relation to those proceedings, on behalf of Mrs Dissidomino and at her request. The various accounts and some payments were pleaded and there was a claim for the amounts then unpaid, which were in the sum of approximately $58,000. The pleading that the solicitors were engaged to represent Mrs Dissidomino, rather than the plaintiff, tends to suggest that Mrs Dissidomino, rather than the plaintiff, was the party to those proceedings. The earlier versions of the statement of claim are not before us.
24 In her affidavit of 25 October 1994, Mrs Dissidomino made a number of claims about what she had paid towards the negligence action, and to the effect that the solicitors' fees were greater than they should have been because of delays which meant that it was necessary for them to refresh their memories on a number of occasions. In par 8 and following, she made and elaborated on a claim that the solicitors were "negligent in the handling of the District Court action and were it not for this negligence, my daughter would have succeeded in obtaining an award of damages in that action" (emphasis supplied). She deposed that as a result of the plaintiff's claim being dismissed, "those damages have been lost and I have incurred a liability to pay the costs of the [solicitors]".
25 The allegations of negligence are that the solicitors abandoned certain pleas relating to injuries suffered by the plaintiff without the consent of Mrs Dissidomino; that the solicitors advised her to reject an offer of $100,000 which was made on the first day of trial; that the solicitors were negligent in failing to tender certain tape recordings of
(Page 12)
- conversations; and that the solicitors were negligent in failing to obtain and tender in evidence records, including records from Irabeena.
26 In par 12, in relation to the offer to settle, she deposed: "Had I accepted the … offer, I would at least have received $100,000 and I would have no liability for the [solicitors'] costs" (emphasis supplied). The affidavit concludes with Mrs Dissidomino's assertion of her belief that she has not only a good defence to the claim for costs, but "also a very substantial counterclaim against the [solicitors] which, I am advised by my Solicitors, can be set off against the [solicitors'] claim and will completely extinguish it".
27 It may be that the set-off there claimed could be seen as an equitable set-off, relating to costs which would not have been incurred but for the solicitors' negligence: Meagher, Gummow and Lehane, 4th ed, [37-040]. However, the affidavit also referred to a "counterclaim" and suggested that there would have been received the sum of $100,000, had the matter been settled; that was a claim which could have only been made by Mrs Dissidomino on behalf of the plaintiff, in her capacity as next friend. Mrs Dissidomino's further affidavit of 23 February 1995 does not add anything of relevance.
28 Registrar Kingsley's reasons delivered 2 April 1997 recited the history of the negligence action and referred to the summary judgment applications made by the solicitors. The Registrar's characterisation of Mrs Dissidomino's affidavit of 25 October 1994 was that it "raised a number of bases for alleging that the plaintiff firm was negligent in the conduct of her action. By reason of the plaintiff firm's negligence, [Mrs Dissidomino's] counsel contends that it is inappropriate to dispose of the action summarily" (emphasis supplied, page 4). The Registrar's language tends to suggest that it was Mrs Dissidomino's action, rather than that of the plaintiff, which the solicitors were conducting in the negligence action. It seems likely that no party had drawn the Registrar's attention to the capacity in which Mrs Dissidomino was acting in the negligence action, the capacity in which she was sued in the costs action, and the capacity in which she contended that she had available a counterclaim. The Registrar then went on to deal with the merits of the claims of negligence.
29 So far as the abandonment of certain injuries pleaded in the statement of claim was concerned, the Registrar noted that counsel's affidavit was to the effect that it was counsel's decision not to proceed with those claims. Based upon counsel's immunity from suit, the
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- Registrar found that that issue was therefore unarguable. Similarly, in relation to a claim that the solicitors were negligent in failing to tender certain tape-recorded evidence, the Registrar considered that that again was plainly counsel's decision and that counsel's immunity from suit rendered the issue unarguable. He reached a similar conclusion in relation to the failure to tender records from the Spastic Centre and from Irabeena. So far as the appeal was concerned, he noted that Mrs Dissidomino's affidavit did not raise an issue of negligence in relation to the conduct of the appeal, although the solicitors were alleged not to have proceeded expeditiously (which might be a matter considered by a taxing officer in relation to the costs of the appeal).
30 It was the Registrar's view that there was a conflict on the affidavits as to what had occurred, and what advice had been given, in relation to the offer of settlement, and he reached the view therefore that there was an "arguable issue" in relation to that matter. He therefore did not grant summary judgment in relation to the costs of the action, and gave leave to defend in relation to the question of the settlement offer. He did give judgment for the solicitors in relation to the costs of the appeal.
31 In her defence and counterclaim dated 30 July 1997, Mrs Dissidomino's pleading relevantly was as follows. Paragraph 2 pleaded that:
"At all material times, the [solicitors] acted as the solicitors for [Mrs Dissidomino] as the next friend of [Mrs Dissidomino's] daughter … with respect to a claim for damages … ."
32 Paragraph 4 pleaded that it was a term of the retainer that the solicitors exercise reasonable care and skill, or alternatively that they owed Mrs Dissidomino such a duty in negligence. There was then a pleading in relation to the making of an offer of settlement, and allegations about the advice which was given to Mrs Dissidomino about that offer. Paragraphs 7 - 10 read as follows:
"7. The Learned Trial Judge who heard the action by reason of inter alia the evidence given at trial by the said paediatric neurologist dismissed the action and thereby [Mrs Dissidomino] has suffered loss and damage which were caused by the breach of contract and negligence of the Plaintiff in failing to advise [Mrs Dissidomino] to accept the said offer of settlement
Particulars of Loss and Damage
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- (a) the said sum of $100,000.00;
(b) [Mrs Dissidomino's] costs of and incidental to the action.
- 8. Alternatively, if which is denied, [Mrs Dissidomino] is liable to the Plaintiffs, [Mrs Dissidomino] will seek to set off against such liability such sums as she may be awarded by way of counterclaim herein.
COUNTERCLAIM
9. [Mrs Dissidomino] here repeats paragraphs 2 to 7 inclusive of her defence.
10. Had [Mrs Dissidomino] accepted the said offer of settlement she would have been paid the said sum of $100,000.00 and at least her party party costs of the action on or about 4 March 1993. [Mrs Dissidomino] therefore claims interest as on a judgment from that date on the damages awarded in this action."
- There is then a prayer for damages and interest on such damages.
33 It can be seen from the defence and counterclaim, then, that although in par 2 it is correctly pleaded that in the negligence action Mrs Dissidomino was acting in her capacity as next friend of the plaintiff, pars 7 through to 10 do not allege merely damage by way of the incurring of costs which would not have been incurred had proper advice been given, but also allege the loss of the sum of $100,000, a claim which could only have been made by Mrs Dissidomino had she been acting in her capacity as next friend for the plaintiff, rather than in her own right.
34 The reply and defence to counterclaim contained no suggestion that Mrs Dissidomino was not entitled to claim damages in the sum of $100,000. Paragraph 1 contained a general joinder of issue. Paragraphs 2 through to 4 raised particular matters relating to the offer of settlement. Paragraph 5 simply denied the allegations in pars 9 and 10 of the counterclaim and contained the standard recitation that the solicitors denied "that the Defendant is entitled to the sum claimed or any sum".
35 It appears from the reasons of Commissioner Reynolds delivered 8 May 1998, that the capacity in which Mrs Dissidomino sued in her counterclaim was not a matter with which issue seems to have been taken. At pages 5 and 6 of those reasons, the learned Commissioner set out
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- pars 4 through to 6 of Mrs Dissidomino's defence. He summarised the history of the various summary judgment applications, and at pages 8 and 9 quoted verbatim par 12 of Mrs Dissidomino's affidavit of 25 October 1994 in which, as I have noted, she deposed that, had she accepted the offer of settlement, she would have received $100,000.
36 Commissioner Reynolds then considered the issues in the negligence action, and the evidence which was given before him. He found on the facts that Mrs Dissidomino had not been advised by the solicitors to reject the offer of settlement, and that at the time at which she came to consider the offer of settlement she was aware of the medical evidence to be led and of its strengths and weaknesses, and was fully informed of the risks of the plaintiff's claim. He found there was no evidence of any failure by the solicitors to exercise reasonable care and skill in the advice given to her in relation to that offer. His conclusion therefore was that: "For all these reasons Mrs Dissidomino has failed to establish negligence and breach of contract as alleged in par 4 of her defence and counterclaim" (page 34). He made the orders to which I have referred.
37 Because Mrs Dissidomino was unsuccessful in those proceedings before Commissioner Reynolds, it was not necessary to consider to whom the payment of damages should have been made. It is relevant to ask, however, what would have happened if the result had been otherwise, and the Commissioner had determined that the solicitors had been negligent in their advice. Presumably, at the time of formulation of orders, it would have been realised that the $100,000 was not to be paid to Mrs Dissidomino personally. In that case, it would have been necessary not only to fashion appropriate orders, but formally to amend the title of the counterclaim so as to join the plaintiff, suing by Mrs Dissidomino.
38 Order 18 r 6 of the Rules of the Supreme Court1971 (WA), which permits the Court "[a]t any stage of the proceedings" to order that any person who ought to have been joined as a party be added as a party, and O 21 r 5, which permits the Court "at any stage of the proceedings" to allow amendment of a writ or pleading, would permit an amendment of that kind even after judgment: Singh v Atombrook Ltd [1989] 1 WLR 810. Even if it were arguable that the counterclaim was a "nullity", in that it impermissibly raised the plaintiff's claim in the absence of the plaintiff as a party, it would, nevertheless, appear to have been capable of rectification so that the plaintiff would have been able to take the benefit of a judgment in her favour: see Mercer Alloys Corporation v Rolls Royce Ltd [1971] 1 WLR 1520. There would, it seems to me, have been no reason to refuse such an amendment, since the issue of negligence was
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- raised by the person who was authorised to act as the plaintiff's next friend, and since the pleadings to which I have referred, and the reasons of Commissioner Reynolds, demonstrate that the issue of negligence was ventilated as if the counterclaim were one for damages in the sum of $100,000 (that is, as if the claim were a claim by the plaintiff).
39 It therefore seems to me that the costs action should correctly be characterised as a proceeding in which there was in substance a claim on behalf of the plaintiff, but which was made in a manner which was procedurally irregular because of the failure to name the plaintiff as a party. If that is so, the costs action and the present proceeding should be characterised as proceedings between the same parties; that is, between the plaintiff and the solicitors.
Mrs Dissidomino's authority
40 The plaintiff, however, submits that it would be "speculative" to assume that Mrs Dissidomino had, in the costs proceeding, authority to act for the plaintiff as next friend. It appears that that submission was made because the Mental Health Act1962 (WA) was repealed from 13 November 1997 by the Mental Health (Consequential Provisions) Act 1996 (WA).
41 The order of Master Staples dated 6 July 1987 declared the plaintiff was incapable, by reason of a mental defect, of managing her affairs. It declared and ordered that Mrs Dissidomino be authorised and directed under s 64(6) of the Mental Health Act1962 to institute proceedings for damages on behalf of the plaintiff and to act as next friend in those proceedings. Although it is clear from the affidavit in support of the application that the particular damages proceedings in contemplation at the time at which that order was made consisted of proceedings in what became the negligence action, the order is wide enough to encompass any proceedings for damages. Even if one were to seek to confine the order in some way by reference to the affidavit in support and the proceedings which were at that time contemplated, it seems to me that the costs action was so closely connected with the negligence action that the order of Master Staples would be authority for Mrs Dissidomino to act as next friend in such proceedings.
42 At the time at which the costs action was commenced, the Mental Health Act was in force. Its repeal was subsequent to delivery of the defence and counterclaim, and some five months before trial. Section 37(1)(c) of the Interpretation Act1984 (WA) provides that where an enactment is repealed, the repeal does not, unless the contrary intention
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- appears, affect any "status or capacity" existing prior to the repeal. There is nothing in the transitional provisions of the Mental Health (Consequential Provisions) Act 1996 to suggest that it was intended to affect any capacity of a person to act as next friend which might have existed under the repealed legislation. There is therefore no reason to consider that Mrs Dissidomino lacked the authority to act as next friend for the plaintiff in the counterclaim in the costs action.
Identity of subject matter
43 I have set out at [24] to [26] a summary of the allegations of negligence in the conduct of the negligence action, which were made in the costs action. Although they were made by way of affidavit, it appears that, as I have noted above, the affidavit raised them in a manner which only the plaintiff would have been entitled to do. As I have noted, there was also in that action an allegation of failure to proceed expeditiously with the appeal from the negligence action. I have set out at [10] to [11] the particulars of negligence alleged in the present action, both in relation to the conduct of the negligence action and in relation to the appeal.
44 Turning first to the negligence action, it can be seen that there is a substantial similarity between the allegations in each set of proceedings. Put at its broadest, there is in each of the present proceedings and the costs action an allegation of a failure to act with reasonable care and skill in the conduct of the negligence action. The cause of action in each proceeding was in that respect identical. I do not think it is appropriate to descend to an examination of the particulars of lack of care and skill pleaded, in order to consider whether there was an identity of subject matter. As the learned Commissioner noted at [44] of his reasons, it would undermine the foundation upon which the principles of estoppel rest, if a party were able to bring a succession of actions based on different particulars of negligence arising out of the same event.
45 Even if it were appropriate to consider the particulars of negligence, there is a very substantial similarity. Broadly categorised, both the costs action and the present proceedings allege a failure to plead certain particulars of negligence in the negligence action, and a failure to obtain and to use evidentiary material. There are differences in relation to the precise pleadings which it is said should have been pleaded and pressed in the negligence action, and the precise evidence which it is said should have been obtained and used.
46 Even if I were incorrect in the view that there is identity of subject matter between the costs action and the present proceedings, so far as the
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- negligence action is concerned, I would respectfully adopt the observations of the Commissioner at [48] of his reasons, which reads:
"In my view, the particulars of negligence which the plaintiff by her next friend seeks to assert and establish in the present proceedings were 'so relevant to the subject matter of the [costs] proceedings that it [was] unreasonable not to rely on it' (Anshun). Having regard to the nature of Mrs Dissidomino's defence and the subject matter thereof it would be expected that she, exercising reasonable diligence, would have raised the particulars of negligence presently raised, thereby enabling all aspects of negligence upon which reliance is placed to be determined in one proceeding (cfAnshun at 602; Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 at 298A-B)."
Conclusion
48 I would therefore accept that the proposition contained in ground 1 of the appellant's grounds of appeal is correct; that is, that the learned Commissioner did err in law in holding that the appellant was a privy of her mother in the costs action. However, for the reasons which I have given, an examination of the history of that action demonstrates that it was in substance not only an action by Mrs Dissidomino, but also an action by the appellant herself, although irregular in the way it was brought. In my view, the Commissioner was correct in holding that the issues decided in
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- the costs action are the same as the issues in the present action, so far as they concern the conduct of the negligence action, or alternatively that an "Anshun estoppel" precluded the appellant from raising allegations of negligence in the present proceedings which could have been raised in the costs action. So far as the appeal from the negligence action is concerned, it is my view that the Commissioner was correct in holding that an "Anshun estoppel" precluded the appellant from raising allegations in respect of that appeal which could have been raised in the costs action. It is not necessary to consider whether the Commissioner was correct in holding that the present action was an abuse of process. I would therefore dismiss the appeal.
49 ROBERTS-SMITH JA: I have read in draft the judgment of Wheeler JA in this matter. I agree with her Honour's reasons and conclusions and have nothing to add.
50 MILLER AJA: I have had the opportunity of reading in draft the reasons for judgment of Wheeler JA. I agree with those reasons and agree that the appeal should be dismissed. There is nothing I wish to add.
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