JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GUNN -v- MEINERS [2022] WASCA 95
CORAM: MITCHELL JA
BEECH JA
VAUGHAN JA
HEARD: 3 FEBRUARY 2022
DELIVERED : 29 JULY 2022
FILE NO/S: CACV 11 of 2020
BETWEEN: DEBRA GUNN
Appellant
AND
HILDEGARD INGE MEINERS
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: STRK AJ
Citation: MEINERS -v- GUNN [2020] WASC 18
File Number : CIV 1228 of 2018
Catchwords:
Appeal - Practice and procedure - Pleadings - Whether appellant denied procedural fairness by primary judge deciding case on basis that was not pleaded - Whether action should be dismissed or a new trial ordered - Turns on own facts
Appeal - Equity - Unconscionable dealing - Whether primary judge applied incorrect legal test in finding that special disadvantage or disability of respondent was sufficiently evident to appellant - Turns on own facts
Notice of contention - Equity - Whether judgment should be upheld on basis of undue influence - Whether primary judge applied incorrect legal test as to ad hoc presumption of undue influence - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B
Supreme Court Act 1935 (WA), s 59(3)
Result:
Appeal allowed
Notice of contention dismissed
Matter remitted to Supreme Court for new trial on particular matters in controversy
Category: A
Representation:
Counsel:
| Appellant | : | M Curwood SC, F A Robertson & B Dalitz |
| Respondent | : | T M Clavey |
Solicitors:
| Appellant | : | Palmos Legal |
| Respondent | : | Douglas Cheveralls Lawyers |
Case(s) referred to in decision(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457
Brown v Churchill [2006] WASCA 17; (2006) 31 WAR 246
Commercial Bank of Australia v Amadio [1983] HCA 44; (1983) 151 CLR 447
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Defendi v Szigligeti [2019] WASCA 115
Dewar v Ollier [2020] WASCA 25
EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23
Fabrizi v Grasso [No 2] [2022] WASCA 27
Goldsworthy v Brickell [1987] Ch 378
Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490
HT v The Queen [2019] HCA 40; (2019) 269 CLR 403
Jenyns v Public Curator (Qld) [1953] HCA 2; (1953) 90 CLR 113
Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113
London Passenger Transport Board v Moscrop [1942] AC 332
Lopwell Pty Ltd v Clarke [2009] NSWCA 165
Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621
Mercanti v Mercanti [2016] WASCA 206; (2016) 50 WAR 495
Mijatovic v Legal Practitioners Complaints Committee [2008]…
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- AGLC
- Gunn v Meiners [2022] WASCA 95
- Case
- [2022] WASCA 95
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the defendant's introduction of new issues at trial, which were not raised in the pleadings, constituted a breach of procedural fairness. The court considered whether the procedural fairness requirement that a party be adequately informed of the case against them was satisfied by the pleadings, and whether a trial judge could rely on reasons or grounds that were not raised in the pleadings or go beyond the issues joined between the parties at trial. Additionally, the court examined whether the parties could disregard the pleadings and fight the case on issues chosen at the trial, and if so, what the implications of such a course of action would be.
The court concluded that procedural fairness is essentially practical and not an abstract concept, with the aim of avoiding practical injustice. It held that, ordinarily, the procedural fairness requirement that a party be adequately informed of the case against them is satisfied by pleadings, which serve to define the issues for decision and to ensure a fair trial. However, the court also recognised that the parties may choose to disregard the pleadings and fight the case on issues chosen at the trial. In such cases, the parties cannot return to the pleadings as governing the area of contest, although there should be an appropriate amendment to ensure that the cause of action alleged forms part of the court record. The court found that the defendant's actions did not constitute a breach of procedural fairness, as the plaintiff had not been prejudiced by the introduction of new issues at trial.
The court ordered that the plaintiff's application for relief be dismissed, and that the defendant be awarded costs of the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
However, the rules of procedural fairness do not have immutably fixed content; the content of procedural fairness may vary according to the circumstances of the particular case. Procedural fairness is essentially practical; it is not an abstract concept. The concern of the law is the avoidance of practical injustice.[96][96] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]; HT v The Queen [18]; Fabrizi v Grasso [92]. The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court and the legislation and rules which govern them.[97][97] Fabrizi v Grasso [92]. In a civil case, the procedural fairness requirement that a party be adequately informed of the case against him or her is satisfied, ordinarily, by pleadings.[98][98] Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, 286. Pleadings have two main functions.[99] First, to define the issues for decision so that the court can control the preparation of the case and the conduct of the trial. Second, to ensure a fair trial by putting the other party on notice of the case to be met. In the latter respect, the function of a pleading is to state the case that must be met with 'sufficient clarity'.[100][99] EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78; (2010) 41 WAR 23 [124].[100] Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (286) (referring to Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490, 517). It follows from the procedural fairness aspect that attends the function of the parties' pleadings that, as a general rule, relief is confined to that available on the pleadings.[101] Thus it is an error for a trial judge to decide a case relying on reasons or grounds that were not raised on the pleadings or otherwise go beyond the issues joined between the parties at trial.[102] However, as is implicit in what we have just said, a case may be litigated at trial in a manner that is materially different from the issues as defined by the pleadings. The parties may disregard the pleadings - either confining or enlarging the issues - and fight the case on issues chosen at the trial. It is well established that where this occurs the parties cannot return to the pleadings as governing the area of contest[103] (although there should be an appropriate amendment so that the cause of action alleged forms part of the court record).[104][101] Gould v Mount Oxide Mines Ltd (in liq) (518) (referring to Sri Mahant Govind Rao v Sita Ram Kesho (1898) 25 Ind App 195, 207); Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, 664; Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (286), (288), (302 - 303).[102] See eg EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [137] - [138].[103] Gould v Mount Oxide Mines Ltd (in liq) (517).[104] London Passenger Transport Board v Moscrop [1942] AC 332, 347; Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (296 - 297); Smith v Leveraged Equities Ltd [2020] WASCA 122 [73].