Guiseppina Dissidomino by her next friend Maria Rosa Dissidomino v Butcher Paull & Calder (A Firm) - [2004] WASC 122

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: GUISEPPINA DISSIDOMINO by her next friend MARIA ROSA DISSIDOMINO -v- BUTCHER PAULL & CALDER (A FIRM) & ANOR [2004] WASC 122

CORAM: COMMISSIONER ODES QC

HEARD: 17 MAY 2004

DELIVERED : 4 JUNE 2004

FILE NO/S: CIV 1381 of 1999

BETWEEN: GUISEPPINA DISSIDOMINO by her next friend MARIA ROSA DISSIDOMINO
Plaintiff
AND
BUTCHER PAULL & CALDER (A FIRM)
Defendant
BARTHALAMOS PETER KAKULAS QC
Third Party

Catchwords:

Res Judicata - Identity of interest - Identity of subject matter - Role of next friend - Anshun estoppel - Abuse of process - Principles dismissed

Legislation:

Nil

Result:

Preliminary issues decided in favour of the defendant

Category: B

Representation:

Counsel:

Plaintiff:     Mr M J Hawkins
Defendant:     Mr E M Corboy SC & Mr S F Popperwell
Third Party                   :     No appearance

Solicitors:

Plaintiff:     Hoffmans
Defendant:     Pynt McKay
Third Party                   :     No appearance

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

Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464
Brewer v Brewer (1953) 88 CLR 1
Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287
Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510
Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510
Haines v Australian Broadcasting Corp (1995) 43 NSWLR 404
Henderson v Henderson (1843) 3 Hare 100
House of Spring Gardens v Waite [1991] 1 QB 241
Jackson v Goldsmith (1950) 81 CLR 446
Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1
Manners v Transfield Pty Ltd (1992) 8 WAR 111
MCC Proceeds Inc v Lehman Bros [1998] 4 All ER 675
McNair v Mayne Nickless Ltd t/as Metropolitan Security Services & Anor (1997) 17 WAR 191
Nana Ofori Atta II v Nana Abu Bonsra II [1958] AC 95
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Ramsay v Pigram (1967) 118 CLR 271
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Reed v Brown (1988) 2 QB D 128
Rippon v Chilcotin Pty Ltd & Ors (2001) 53 NSWLR 198
Rogers v The Queen (1994) 181 CLR 251
State Bank of New South Wales v Alexander Stenhouse Ltd (1997) A Tort Rep 381‑423
Stephenson v Geiss (1998) 1 Qd R 542
Tiufino v Warland (2000) 50 NSWLR 104
Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406
Walton v Gardner (1993) 177 CLR 378

Case(s) also cited:

AAMI v NRMA Insurance (2002) 124 FCR 518
C (a minor) v Hackney London Borough Council [1996] 1 All ER 973
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
Dyke v Stephens [1885] 30 Ch D 189
In re Waring Westminster Bank Ltd v Awdry [1942] Ch 426
In re Waring Westminster Bank Ltd v Awdry [1942] Ch 309
In re Waring Westminster Bank Ltd v Burton-Butler [1948] 1 Ch 221
Linsey v Petrie [1998] 1 VR 427
Marginson v Blackburn Borough Council [1939] 2 KB 426
Pender v Taddei [1898] 1 QB 798
Redman v Instant Nominees Pty Ltd [1987] WAR 277
Reichel v Magrath (1889) 14 App Cas 665
Rhodes v Swithenbank [1889] 22 QBD 577
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Sinclair v Sinclair (1845) M & W 640
Tanning Research Laboratories Inc v O'Brien [1989] 169 CLR 332

COMMISSIONER ODES QC: This matter comes before the Court by way of a trial of preliminary issues to be determined on the basis of facts agreed between the parties. The plaintiff was born at St John of God Hospital, Subiaco ("the hospital") on 22 July 1962 and suffers from cerebral palsy as a result of which she is unable to manage her own affairs. The plaintiff's next friend is her mother, ("Mrs Dissidomino") who has since the plaintiff's birth been her principal carer. The defendants are Butcher Paull & Calder, a firm of solicitors ("the firm") practicing in Western Australia.

The Background

(a) The negligence action

The background to this matter as far as can be gleaned from the statement of agreed facts dated 16 April 2003 and filed on 6 August 2003 is briefly as follows.
The firm was retained by Mrs Dissidomino in 1985 to advise as to whether the plaintiff had a claim for damages for negligence against the hospital and a Dr William Arthur Newnham ("Dr Newnham"), who was the general practitioner who delivered the plaintiff at the hospital. On the instructions of the plaintiff by her next friend, the firm instituted an action against the hospital and Dr Newnham claiming damages allegedly suffered in consequence of their negligence at the birth of the plaintiff. The duration of the trial was 10 days after which Charters DCJ delivered judgment on 15 April 1993 dismissing that action ("the negligence action").
The plaintiff by her next friend then instructed the firm to appeal against the judgment in the negligence action in respect of which a notice of the appeal was filed on 6 May 1993. The appeal however, was not entered for hearing within the time prescribed by the rules of the court with the result that the firm was compelled to apply to the Full Court of the Supreme Court of Western Australia for an extension of time to do so. The hospital and Dr Newnham at the same time applied to dismiss the appeal for want of prosecution.
On 12 April 1994, the Full Court dismissed the appeal for want of prosecution. In the process, the Full Court considered the merits of the appeal and held that on the basis of the evidence led at the trial there was no likelihood of the appeal succeeding and that there was nothing before it to suggest that the plaintiff could reopen her case by calling fresh evidence.

(b) The costs action

On 21 July 1994 the firm then sued its client, Mrs Dissidomino in her own right to recover $58,552.75 in legal fees (including counsel's fees) incurred in the prosecution of the negligence action and the appeal referred to above ("the costs action"). The legal fees were calculated and charged in accordance with a cost agreement which was entered into on 30 July 1987 between Mrs Dissidomino and the firm. Mrs Dissidomino defended the costs action being represented successively by other solicitors. In addition to her defence, in which she averred that the firm was not entitled to costs because of its negligent conduct of the negligence action, the details of which are set out below, she also counterclaimed for damages in the sum of $100,000.00, which she alleged she would have obtained had she not been given negligent advice by the firm, in relation to an offer of settlement made during the negligence action. (These damages, if recoverable, would have been payable to the plaintiff and not to Mrs Dissidomino, who was in the costs action, being sued as the next friend). In the course of the costs action the firm brought two applications for summary judgment in which Mrs Dissidomino swore affidavits dated 10 October 1994 and 23 February 1995 in opposition.
The matter came before Registrar Kingsley, who on 2 March 1995 held in written reasons that the defence raised by the plaintiff challenging the enforceability of the costs agreement ought to be resolved first and directed the plaintiff to issue proceedings in the Supreme Court by reason of the fact that the District Court had no jurisdiction to set aside a costs agreement.
Mrs Dissidomino duly applied to the Supreme Court by an originating summons to set aside the costs agreement ("taxation proceedings") on 25 March 1995. On 2 June 1995 Registrar Kingsley upheld the firm's application for summary judgment insofar as it claimed counsel's fees but otherwise dismissed the application because of the pending taxation proceedings. However, on 8 September 1995 by consent of the parties Acting Master Chapman set aside the costs agreement and directed the firm to file a bill of costs for taxation which it duly did. As a preliminary to the taxation of the bill, Registrar S Boyle received oral and written submissions and remitted the bill to the District Court for determination upon being advised by the plaintiff's then solicitors that in the taxation process the plaintiff proposed to submit in respect of almost every item in the bill that the charge was unreasonably incurred and unnecessary because of the firm's negligent conduct in the negligence action and in the appeal. The firm's alleged negligence was a live issue in the costs action.
Following the remission of the bill to the District Court the firm issued its second application for summary judgment and on 2 April 1997, Registrar Kingsley delivered reasons for decision holding that Mrs Dissidomino's defence:
(a)alleging that, at the time she engaged the firm, she was not given any advice as to the total amount of fees and disbursements was inherently incredible;
(b)alleging that certain injuries pleaded in the statement of claim were abandoned without her consent and therefore negligently, could not succeed because the decision to abandon the claims had been made by her senior counsel in opening the case which conduct was not actionable in negligence by reason of counsel being, in those circumstances, immune from suit;
(c)alleging that the firm was negligent in failing to tender tape recordings, could likewise not succeed because the decision not to use them was an aspect of the trial for which a barrister was immune from a suit in negligence;
(d)alleging that the firm was negligent in failing to tender records from Irrabeena failed because that decision was also protected from suit in negligence by the barrister's immunity;
(e)alleging that she was advised on the second day of the trial, that she could not accept an offer of settlement of $100,000.00 notwithstanding the case was in danger of being dismissed given the contents of a letter received from a Dr Silberstein, raised an arguable issue for which leave to defend ought to be given ("advice to settle allegation").
The learned Registrar held that because she did not challenge the conduct of the appeal, the application for summary judgment should be upheld to the extent that it claimed fees relating to the appeal. He otherwise dismissed the application. (See agreed bundle of documents pages 430‑433.)
Mrs Dissidomino appealed the Registrar's decision which was dismissed.
Following a trial of the costs action on 20 and 21 April 1998, in which a number of witnesses gave evidence, Commissioner Reynolds delivered reasons upholding the firm's claim and dismissing Mrs Dissidomino's defence for negligence and/or breach of retainer, which relied on the advice to settle allegation. Judgment was entered in favour of the firm on 8 May 1998. (Agreed bundle pages 478‑481.) Mrs Dissidomino's counterclaim was dismissed by consent order dated 25 March 2003.
It should at this stage be noted that Mrs Dissidomino did not in her original opposing affidavit to the first summary judgment application raise any issue of negligence in relation to the firm's conduct of the appeal, an omission referred to in the reasons for judgment of both Registrar Kingsley (Agreed bundle page 433) and Commissioner Reynolds (Agreed bundle at 480). Accordingly, the firm's costs on appeal were awarded separately by Registrar Kingsley for that reason.

(c) The present proceedings

The plaintiff by her next friend has commenced this action on 13 April 1999 in which she alleges the firm was negligent in its conduct of the negligence action and the appeal, the firm in turn joining one Barthalamos Peter Kakulas QC as a third party. The participation of, and allegations against, the third party are irrelevant for the purposes of determining the preliminary issues.
In summarising the allegations in the substituted statement of claim, I do not propose to repeat verbatim the technical medical terminology contained therein. For present purposes, I content myself with indicating the effect of the particular allegations made.
The substituted statement of claim alleges inter alia that the defendant firm was negligent in its preparation for and conduct of, the negligence action. Various grounds of negligence are pleaded including the failure of the defendant to plead certain "causes of action" in the negligence action. Although the substituted statement of claim refers to "causes of action" which the firm allegedly failed to plead, it is apparent when examining the paragraphs to which reference is made that they are not in fact "causes of action" but particulars of negligence on the part of Dr Newnham and the hospital which were not pleaded. (I deal with this aspect more fully later in these reasons). It is further alleged that the firm failed prior to, or at, the negligence trial to become aware of, or alternatively to utilise, the contents of a letter written by Dr Leslie Vincent to Dr G J L Hamilton of Irrabeena, dated 1 March 1967 concerning the plaintiff ("the Irrabeena letter"). It is alleged that the Irrabeena letter was available for inspection which the defendant failed to inspect or alternatively failed to utilise in the presentation of the plaintiff's case. It is alleged that had the contents of the Irrabeena letter been brought to the notice of the medical experts consulted by the plaintiff their advice and/or evidence would have been different and, in effect, favourable to the plaintiff's case. It is further alleged that the firm prior to the trial ought to have been aware that an MRI scan could have been determinative of the question of liability in the plaintiff's favour. In particular, it is alleged that the firm ought to have been aware of the value of an MRI scan diagnosis as a result of:
(1)their practice in the area of personal injuries litigation; and
(2)a medical report written by Dr W M Carroll dated 13 February 1993 addressed to the solicitors for Dr Newnham and delivered to the firm prior to the trial wherein he stated:
"Crucial to the prognosis for his case is a more definite assessment of the underlying pathology. I think Guiseppina does require cranial neuro‑imaging but this would have to be performed under general aesthetic (sic) …"
It is alleged that had an MRI scan been obtained it would have revealed brain damage which was inconsistent with the defences raised by the hospital and Dr Newnham in the negligence action. It is alleged further that, had the MRI scan evidence been tendered at the trial, two competing causes of the plaintiff's cerebral palsy would have been excluded by the trial Judge and the plaintiff's case would have succeeded.
In addition to the above allegations of negligence in the conduct and preparation of the trial, the plaintiff also alleges negligence of the defendant in the conduct and prosecution of the appeal. The alleged negligence on appeal, apart from a failure to conduct and prosecute it timeously with the result that it was struck out for want of prosecution, includes allegations that the firm failed to adduce before the Court the fresh evidence of the Irrabeena letter, and a failure to obtain expert medical interpretation of an MRI scan of the plaintiff's brain performed on 24 November 1993 (which is a date some seven months after the date of the judgment delivered in the negligence action). She claims that as a result of the allegations made against the firm both in relation to its conduct and preparation of the trial and its failure to prosecute the appeal timeously and present fresh evidence at the appeal, the plaintiff had lost the opportunity of recovering damages from Dr Newnham and/or the hospital.

The Issues to be Tried as a Preliminary Issue in this Action

The parties, on the basis of the agreed statement of facts which are basically set out in the background noted above, require the Court to answer the following questions:
"a.Is the plaintiff estopped from proceeding with its action against the defendant?
b.Should the plaintiff's action be struck out or permanently stayed as an abuse of process?
c.Is the defendant entitled to advocate's immunity in relation to the allegations made in the substituted statement of claim?"
Mr Corboy SC who together with Mr Popperwell, appeared on behalf of the firm in the present proceedings contends that, by reason of the judgments delivered in the District Court in the costs action in relation to the conduct of the firm alleged to have been negligent, the plaintiff is estopped by the doctrine of res judicata from re‑litigating the issue of the firm's negligence in these proceedings. In the alternative, he submits that even if the elements of an estoppel are not established, the present proceedings constitute an abuse of process and that they should accordingly be struck out. (It should be noted that while the judgments in the earlier proceedings were delivered in the District Court and the present action is brought in this Court, that fact is no bar to a successful reliance on an estoppel defence (McNair v Mayne Nickless Ltd t/as Metropolitan Security Services & Anor (1997) 17 WAR 191 at 197; Tiufino v Warland (2000) 50 NSWLR 104 at 110 [27] – [28].)
On the other hand, it is contended by Mr Hawkins, counsel for the plaintiff by her next friend, that the res judicata doctrine cannot be invoked against her because the next friend acts in the present proceedings and has acted in the costs action in different capacities. Counsel contends that in the present proceedings she acts as the next friend of the plaintiff, whereas in the costs action she acted in her personal capacity. In effect, it is argued that there is no privity of interest in her dual capacities. Counsel therefore argues that the two sets of proceedings are not, in the words of Dixon J in Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464, "between the same parties or their privies". He submits further that the causes of action in the two proceedings are different, contending that each particular of negligence constitutes a separate cause of action. These arguments are disputed by counsel for the firm. I proceed to examine the questions raised by the parties in turn.

Is the Plaintiff Estopped from Proceeding with its Action against the Defendant?

The long‑standing policy underlying the res judicata and issue estoppel doctrines is articulated in Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853, where the House of Lords stated those doctrines to be founded on two basic principles namely the public policy interest in ensuring that there is finality in, or an end to, litigation and the private justice consideration that no person should be vexed twice in relation to the same cause of action. (See the judgments of Lord Reid at 909‑910; Lord Guest at 933‑934 and Lord Upjohn at 945‑947.) These passages have been cited with approval in Australian courts: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597; Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510 (Full Court) at 514‑516; Spencer Bower, Turner and Handley, "The Doctrine of Res Judicata", 3rd ed, par 10, pages 5‑6. Part of the public policy considerations underpinning the application of the principles of estoppel is that it obviates the risk of inconsistent verdicts being reached between the two courts (Anshun at 603; Brewer v Brewer (1953) 88 CLR 1 at 15.) For those reasons, "a judicial determination directly involving an issue of fact or of law disposes once for all of the issue so that it cannot afterwards be raised between the same parties or their privies" (per Dixon J (as he then was) in Blair v Curran (supra) at 531).
In these proceedings, nothing turns on the distinction between res judicata and issue estoppel. It is therefore unnecessary to differentiate them in any detail save to the limited extent referred to in the section dealing with "Identity of Subject Matter" below. (See Blair v Curran at 532.)
In order to successfully raise the defence of res judicata by way of a defence a party must establish the following elements:
"(i)The decision was judicial in the relevant sense;
(ii)it was in fact pronounced;
(iii)the Tribunal had jurisdiction over the parties and the subject matter;
(iv)the decision was –
(a)final, and
(b)on the merits;
(v)it determined the same question as that raised in the later litigation;
(vi)the parties to the later litigation were either parties to the earlier litigation or their privies …"
(Spencer Bower, Turner and Handley: "The Doctrine of Res Judicata", 3rd ed, par 19, page 10.)

No question arises as to the satisfaction of the elements (i) to (iv) inclusive. The issues between the parties as I understood their arguments related to elements (v) and (vi). (See also Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406 at 412.)

Identity of Parties – "The Parties or their Privies"

In order to invoke either res judicata or issue estoppel as a defence, it is necessary to establish an identity or privity of the parties in the two proceedings. (Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 590; Blair v Curran at 531; Ramsay v Pigram (1967) 118 CLR 271; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 507; Manners v Transfield Pty Ltd (1992) 8 WAR 111 at 121, 133.) Put in another way, there must be an identity of interest between the parties or their privies.
When determining whether the parties are the same in the two proceedings, one must have regard to "the substance of the action as distinct from its form" (Anshun at 610; Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 at 516; Tiufino (supra) at 110 [31]); MCC Proceeds Inc v Lehman Bros [1998] 4 All ER 675 at 695B; Handley: "Res Judicata in the European Court" (2000) 116 LQR 191)
In dealing with privies in the context of infants or persons under disability, the learned author in the third edition of Res Judicata (op cit) observed as follows:
"An infant, by his next friend … can take the benefit and must bear the burden, of an estoppel, and if he has sued or been sued by his next friend in the former proceedings and in the subsequent proceedings, having attained his majority, he appears as a person sui juris, he is the same party. However there is no estoppel unless the infant was properly represented by a next friend or guardian ad litem."
The identity or privity of interest between a person under disability and his next friend is generally accepted. (See for instance, the reasons of Gummow J in Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (supra) at 412 in which he distinguished the situation confronting him and that of a "trustee or next friend". That judgment was upheld on appeal.)
It was conceded by counsel for the plaintiff that the mother and her daughter had an identity of interest in the negligence action and have one in these proceedings, but he argues that that was not the position in the costs action where he contends that Mrs Dissidomino alone was the party in her personal capacity.
Counsel for the plaintiff submits that in the costs action the plaintiff had no interest at all, by reason of the fact that her mother was sued personally.
In order to appreciate the reasons for Mrs Dissidomino being sued in her personal capacity in the costs action it is necessary to examine the precise role of the next friend. After all, she was sued in her capacity as next friend in the negligence action but is being sued personally by the firm in relation to the costs incurred in that very action, namely the negligence action.
I can do no better than refer to the dictum of Lee J in Stephenson v Geiss (1998) 1 Qd R 542 at 557, where his Honour expressed himself as follows:
"There is a fundamental misconception as to the true basis on which a solicitor acts in a case where there is a next friend of a plaintiff who is under a legal disability. As long ago as 1878, Palles C.B. said in Almack v Moore …, that an infant cannot appoint an attorney and a suit by him must be prosecuted by guardian or next friend allowed by the court. An infant (or person under legal disability) cannot incur charges and expenses … The attorney in such a suit is necessarily the attorney, not of the infant (or person under disability) but of the next friend: … a solicitor acting for a plaintiff who is a minor or a person under disability suing by his next friend has for his client the next friend, and not the minor, even though the action conducted by the solicitor, is the action of the infant, (or person under disability by his next friend), and not of the next friend individually …" (Case references omitted.)
As such, the next friend acts as an officer of the court (ibid), and as an officer of the court, she is legally bound to act exclusively in the interest of her award. The possibility of a conflict of interest between them simply does not exist. In effect, the next friend is the ward's alter ego.
Some controversy exists as to the test to be applied in determining whether one party has a privity of interest with another. Mere curiosity does not qualify sufficiently to constitute a relevant "interest" (Gleeson (supra)). In the latter case, Megarry VC (at 515), held that in order for a third party to raise a defence of res judicata against a plaintiff who has failed in a similar action against a defendant, there had to be "a sufficient degree of identity between the successful defendant and the third party". The learned Vice Chancellor proceeded as follows:
"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 a 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'."
He then gave as an example a decision on trust property against the trustee as being binding on the beneficiaries. I would have difficulty in distinguishing that example from the present case between the plaintiff's mother in her personal capacity in the costs action and the plaintiff by her next friend in the present proceedings, bearing in mind the subject matter of the dispute in each action. (I deal with the identity of subject matter later in this judgment.) The test of Megarry VC quoted above was approved recently in the House of Lords in Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 32 (per Lord Bingham).
The test for the existence of a privity of interest propounded in Gleeson did not find favour with Gummow J at first instance in Trawl Industries (supra) at 416 describing it as "a loosely phrased, however alluring, invitation to judicial idiosyncrasy". His Honour preferred the test laid down in Ramsay v Pigram (supra) and Jackson v Goldsmith (1950) 81 CLR 446. In Ramsay v Pigram, Barwick CJ identified the basic requirement for establishing a privity of interest as being "that the privy must claim under or through" the person of whom he is said to be privy (at 279).
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 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.

Identity of Subject Matter

The form of estoppel relied upon by the firm is the "cause of action" estoppel in relation to the negligence claims in both actions. It also relies upon an Anshun estoppel applied by the High Court in Port of Melbourne Authority v Anshun (supra).
Mr Hawkins contends that the doctrine of preclusion does not apply in the present proceedings because the cause of action in the costs action was not the same as the cause of action relied upon in these proceedings. He has contended that each failure alleged in the present proceedings (for example the failure by the firm to have an MRI scan taken) constitutes a separate cause of action. He argues therefore that since these grounds of negligence are not the same in both actions the requirement for a "cause of action" estoppel has not been satisfied. I am unable to agree with that argument.
The imprecision of the meaning of the term "cause of action" has been referred to in Anshun by Brennan J (as he then was) at page 610 in the following terms:
"… [cause of action] is sometimes used to mean the facts which support a right to judgment …; sometimes to mean a right which has been infringed …, and sometimes to mean the substance of an action as distinct from its form …". (Case references omitted.)
However, as was stated by Lord Esher MR in Reed v Brown (1988) 2 QB D 128 at 131:
"It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved."
It is therefore necessary to establish in each action what were the facts which supported a right to judgment or what right has been infringed or what was the substance of the action as distinct from its form.
In the defence and counterclaim put up in the costs action and as a justification of her failure to pay the costs, Mrs Dissidomino had to establish the contract entered into by her with the firm, giving rise to a duty of care which the firm owed in relation to the proper conduct of the action in the negligence case and a breach of that duty. These were the elements which were necessary to be proved to support a right to judgment or the infringement of a right. Each particular negligent act or omission constituted a piece of evidence which singly or cumulatively, was necessary to be proved in order to establish a breach of duty. But, as stated by Lord Esher in Reed v Brown (supra) each such act or omission did not constitute a separate cause of action. The issue relevantly decided in the defence raised in the costs action was whether the action in the negligence action failed because of the negligent conduct of the firm (cf Ramsay v Ramsay (supra) at 277‑278). The negligent conduct of the firm which constituted the breach of duty owed to the plaintiff and her next friend is the very issue which the plaintiff requires the Court to decide in these proceedings. The duty of care which gives rise to the cause of action in both proceedings has an identical origin. The agreement between Mrs Dissidomino and the firm requiring the latter to act on behalf of the plaintiff is the sole source of the legal right upon which the breach of duty of care by the firm rests (cf Anshun at 513). But for that agreement the firm was under no duty of care either to the plaintiff in tort or to the next friend in contract or tort. In my view it would completely undermine the entire 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 as constituting a separate cause of action.
Even if the conclusions reached by me above were not correct, the plaintiff in these proceedings would nevertheless be precluded by the Anshun estoppel from raising different particulars of negligence which could reasonably have been raised at the time that the issue of the firm's negligence was ventilated in the costs action. The High Court in Anshun having examined the numerous authorities concluded (at page 602) that there would be no estoppel:
"… unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action, that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding."
One of the authorities which was cited with approval in Anshun and upon which reliance was placed by the entire Court was the decision in Henderson v Henderson (1843) 3 Hare 100 at 115, where the Vice Chancellor made the following observations:
"Where a given matter becomes the subject of litigation in and, of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not, (unless under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."
(Justice Handley in his article "Anshun Today" published in The Australian Law Journal, December 1997, vol 71 at 934, aptly observes, presumably relying on the above passage in Henderson (supra) that: "In the language of the stud book, one might say that Anshun was by abuse of process out of Henderson v Henderson".)
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 (cf Anshun at 602; Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 at 298A‑B).
During argument it was put to plaintiff's counsel that Mrs Dissidomino could have joined the plaintiff in the counterclaim and then claimed damages on behalf of the plaintiff thereby ensuring that all issues of negligence as well as questions of damages were determined. Counsel argued that it was not open to Mrs Dissidomino in the costs action to have claimed damages by way of counterclaim (although she purported to do so by claiming $100,000.00 for negligent advice in the negligence action). He contended that because she was sued personally she had no counterclaim for damages suffered by the plaintiff. He cited O 18 of the Rules of the Supreme Court, which he argued enabled only the defendant in the action to file a counterclaim and therefore argued that the procedure put to him in argument was incompetent. In making that submission, counsel in my view overlooked the provisions of O 18 r 6(2)(b), which provides as follows:
"(2)At any stage of the proceedings in any court or matter the court may on such terms as it thinks just and either of its own motion or on application –
(a)…
(b)order that any person ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party …"
In my view it was open to Mrs Dissidomino in her capacity as next friend to have applied for the joinder of the plaintiff in the counterclaim so as to ensure a complete ventilation of all issues relating to the negligence of the firm and to claim damages allegedly suffered as a result of such negligence in the one proceeding.
It follows from the reasons stated above that the firm should be entitled to an order permanently staying the present proceedings on the grounds of estoppel. That conclusion makes it strictly unnecessary for me to consider the question of abuse of process. However, should I be in error in my findings that there is a privity of interest or that there is an identity of subject matter in both actions I shall deal with the argument relating to an abuse of process which was fully canvassed before me.

Should the Plaintiff's Action be Struck out or Permanently Stayed as an Abuse of Process?

A superior court has an inherent jurisdiction to stay proceedings on the basis that they constitute an abuse of process (Walton v Gardner (1993) 177 CLR 378; Rogers v The Queen (1994) 181 CLR 251). In the joint judgment of Mason CJ, Deane and Dawson JJ in Walton at 393 their Honours cited a number of examples in which an abuse of process can be invoked to stay proceedings. Relevant in the present context the learned Judges indicated that the doctrine may be invoked:
"… if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason it is sought to litigate anew a case which has already been disposed of by earlier proceedings."
(See also Rippon v Chilcotin Pty Ltd & Ors (2001) 53 NSWLR 198 at 201 [15], 202 [22]; Haines v Australian Broadcasting Corp (1995) 43 NSWLR 404; State Bank of New South Wales v Alexander Stenhouse Ltd (1997) A Tort Rep 381‑423 at 64‑086.)
The underlying rationale for the application of the doctrine rests on two bases:
"… First, the aspect of vexation, oppression and unfairness to the other party to the litigation and secondly the fact that the matter complained of will bring the administration of justice into disrepute."
(Mason CJ in Rogers at 256; see also McHugh J at 286‑287).
In Johnson v Gore Wood & Co (a firm) (supra), the House of Lords refer to the differences between the doctrines of cause of action estoppel and the abuse of process doctrine stating that:
"The latter which may arise where there is no cause of action or issue estoppel, is not subject to the same test, the task of the court being to draw the balance between the competing claims of one party to put his case before the court and of the other not to be unjustly hounded given the earlier history of the matter." (Per Lord Bingham at 30.)
He also referred to the similarity between the two doctrines where (at page 31) he stated as follows:
"The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interest of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if a court is satisfied … that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all."
(See also House of Spring Gardens v Waite [1991] 1 QB 241 at 252‑254.)

In Johnson v Gore Wood, an argument similar to that proffered by the plaintiff in these proceedings was put up and rejected on the basis that it constituted an abuse. The plaintiff was a business man who conducted his business through a series of companies of which he was the director and sole beneficial shareholder. He instituted an action on behalf of one of the companies against a firm of solicitors acting for him, suing the firm for damages as a result of its conduct in a certain transaction on behalf of that company. Before the action came to trial the solicitors representing the company notified the solicitors for the firm that the plaintiff also had a personal claim against the firm arising out of the same matters which he proposed to pursue in due course. The plaintiff's personal claim was discussed between the firm's solicitors and the plaintiff's solicitors who were also acting for his company. The plaintiff's solicitors explained that it had been thought better to wait until the company's claim had been concluded before dealing with the personal claim. An overall settlement of the company's claim was effected during the trial. Thereafter the plaintiff issued a writ against the defendants arguing that the rule in Henderson v Henderson did not apply to him since he had not been the plaintiff in the first action against the firm. That argument was held by Lord Bingham to have been rightly rejected. His Lordship held, at page 32 as follows:
"A formulaic approach to the application of the rule would be mistaken. WWH was the corporate embodiment of Mr Johnson. He made decisions and gave instructions on its behalf. If he had wished to include his personal claim in the company's action or to issue proceedings in tandem with those of the company he had the power to do so."
Lord Bingham then went on to quote the dictum of Megarry VC in Gleeson (at 515) which has been cited by me earlier in this judgment and held that the test formulated by him and quoted by me above had been clearly satisfied.
Lord Millett in the same case held (at page 60) that Johnson had conceded that he and the company were privies and went on to state:
"He was in a position to decide when to pursue the two claims and whether to pursue them together or separately and that is enough for present purposes."
The finding was made in the context of a discussion on an abuse of process. Looking at all of the circumstances of the case, I find that it was Mrs Dissidomino who entered into an agreement with the firm which gave rise to the latter's duty of care not only to her but also to the plaintiff. It is also clear that she was the only person who was capable of giving the firm instructions and that she was in control of the conduct of her case as well as the case for the plaintiff. If, as a matter of legal form, she was acting in a personal capacity in the costs action and not as privy to the plaintiff, she was in fact, in control of the plaintiff's interests and in her capacity as the plaintiff's next friend stood by and allowed the issues of negligence to be litigated without litigating those very issues on behalf of the plaintiff. (cfNana Ofori Atta II v Nana Abu Bonsra II [1958] AC 95 at 102‑103.) By now attempting to re‑litigate the issue of the firm's breach of duty of care (albeit it by relying on different particulars of negligence) she is seeking to ventilate issues which she could have ventilated in the counterclaim of the costs action but chose not to do. She was as indicated in Johnson (supra), the embodiment of the plaintiff in substance in that the plaintiff was reliant upon her to take whatever steps were necessary to protect the plaintiff's interests. In opting not to join the plaintiff in the costs action, any attempt on Mrs Dissidomino's part to raise the issue of the firm's negligence anew in the present proceedings constitutes an abuse of process. I conclude therefore that even if the parties in the costs action and the present proceedings are not the same or even if the causes of action are not identical so far as they give rise to a defence of res judicata or issue estoppel, the present proceedings should nevertheless be permanently stayed as an abuse of process.

Is the Defendant Entitled to Advocate's Immunity?

In relation to the third issue to be tried as a preliminary issue in the action, namely whether the defendant is entitled to advocate's immunity in relation to the allegations made in the substituted statement of claim, no argument at all was addressed to me on this issue. By reason of the conclusions arrived at by me in relation to the first two issues it is unnecessary for me to express any view on this one.
The preliminary issues referred to the Court for determination are accordingly answered as follows:
A.The plaintiff is estopped from proceeding with her action against the defendant.
B.The plaintiff's action should be permanently stayed as an abuse of process.
C.It is not necessary to decide this issue by reason of the answers to A and B above.