Humphris v Connecteast Nominee Company Pty Ltd
[2015] VSC 12
•28 January 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2014 3458
| CLIVE ARTHUR HUMPHRIS and DOROTHY JUNE HUMPHRIS | Plaintiff |
| v | |
| CONNECTEAST NOMINEE COMPANY PTY LTD (ACN 108 736 992) and CONNECTEAST PTY LTD (ACN 101 213 263) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 December 2014 |
DATE OF JUDGMENT: | 28 January 2015 |
CASE MAY BE CITED AS: | Humphris v Connecteast Nominee Company Pty Ltd and Anor |
MEDIUM NEUTRAL CITATION: | [2015] VSC 12 |
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PRACTICE AND PROCEDURE – Anshun estoppel: whether plaintiffs precluded from bringing a proceeding asserting a new cause of action in relation to the same facts upon which summary judgment had been granted in a proceeding – Whether unreasonable for the plaintiffs not to raise new causes of action in prior proceeding – Relevant considerations where no risk of conflicting judgments – Relevance of status of plaintiffs as litigants in person – Abuse of process – Whether new proceeding a collateral attack on judgments in earlier proceeding – Order that past costs be paid to alleviate prejudice to defendants.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Gronow (Victorian Bar Duty Barrister Scheme) | |
| For the Defendants | Ms C Button | Ashurst Australia |
HER HONOUR:
The plaintiffs, Mr and Mrs Humphris, are former registered proprietors of a property in Donvale (‘Donvale property’). For a number of years, they have determinedly pursued grievances held by them with respect to allegedly excessive noise levels emanating from the Eastlink Freeway, which opened to traffic in June 2008. The Humphris’ sold the Donvale property in 2009. The gravamen of their complaint is that the defendants (or either of them) failed to construct appropriate noise barriers near the Donvale property to protect the Donvale property from excessive traffic noise. On 14 August 2013, the Humphris’, who until recent months have been self-represented, issued a proceeding in this Court against the defendants in this proceeding,[1] claiming that the defendants were in breach of various provisions of the East Link Concession Deed (‘Deed’) in failing to construct noise barriers to prevent the Donvale property being subject to unreasonable traffic noise (‘first proceeding’). The Humphris’ claimed the following relief:
[1]S CI 2013 4183.
…
6.The Plaintiffs are seeking fair and reasonable compensation for the loss in value of the sale of their former home at 5 Robinson Court, Donvale which they were forced to sell due to the unreasonable road traffic noise problems, adjusted to current comparable value, plus all legal costs and all costs and expenses accrued due to multiple house moves and personal compensation for the continuing stress, mental anguish and disruption of their lifestyle which was irreparably destroyed by having being denied the peaceful quiet enjoyment of their home which is still ongoing now for more than 5 years.
7. The Plaintiffs prayer for relief or remedy sought includes:
Loss in value between the sale price of their former home and the sale price if the unreasonable noise problem did not exist.
All legal costs and stamp duty paid for the purchase and sale of their former home.
All legal costs and stamp duty and all fees payable for a comparable home.
All legal costs and expenses incurred relative to obtaining evidence in preparation of this Writ.
All expenses incurred for storage and in relation to house moves.
Personal compensation for both Plaintiffs for ongoing stress and mental anguish and the irreparable destruction of their normal lifestyle.
All of the above adjusted to current values…
Following correspondence between the parties, during the course of which the solicitor for the defendants pointed out to the plaintiffs the defects in their statement of claim, including the fundamental defect that the plaintiffs were relying upon alleged breaches of a contract to which the plaintiffs were not parties, the defendants issued a summons seeking summary dismissal of the proceeding, or in the alternative, to strike out the statement of claim. The application was heard and determined before Lansdowne AsJ on 24 February 2014. What transpired during the course of that hearing, when Mr Humphris represented the plaintiffs, is of some relevance to the current application. Lansdowne AsJ, after being informed by Mr Humphris that the plaintiffs’ claim was solely based upon the defendants’ alleged breaches of the Deed, granted summary judgment in favour of the defendants, and ordered that the plaintiffs pay the defendants’ costs fixed at $6,219.20.
The plaintiffs appealed. The appeal was heard before Ginnane J, who delivered judgment on 24 June 2014.[2] By the time the appeal was heard, the plaintiffs were represented by Mr Jeremy Twigg of Counsel (as he then was), who appeared via the Victorian Bar’s Duty Barrister Scheme.
[2][2014] VSC 174.
The submissions on behalf of the plaintiffs in support of their appeal conceded that the Deed gave rise to no cause of action on the point of the plaintiffs by reason of the doctrine of privity of contract, but submitted that Lansdowne AsJ ought to have provided the plaintiffs with an opportunity to re-plead a claim in nuisance, and sought orders that in lieu of judgment, the plaintiffs’ statement of claim ought be struck out. The appeal was unsuccessful, and Ginnane J ordered that the plaintiffs pay the defendants’ costs, fixed at $9,511.80.
Within a week of his Honour delivering judgment, the plaintiffs issued this proceeding. The statement of claim was clearly prepared by the plaintiffs without the benefit of legal assistance, and while the statement of claim did make claims in respect of negligence and nuisance, and provided relatively well particularised allegations of nuisance and negligence, the plaintiffs continued to maintain that they had a right to compensation under the Deed (relying at least in part upon the principles in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd) and made claims under the United Nations Declaration of Human Rights and the Charter of Human Rights and Responsibilities Act 2006 (Vic).[3] On 15 September 2014, the defendants issued a summons (‘Summons’) seeking the following relief:
[3](1988) 165 CLR 107, referred to in paragraph 23(b) of the Statement of Claim.
1.Pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2005 (the Rules) and/or section 63 of the Civil Procedure Act 2010, there be summary judgment for the Defendants, alternatively that the proceeding be permanently stayed.
2.In the alternative, pursuant to r 23.02 of the Rules, the Plaintiffs’ Amended Statement of Claim dated 7 August 2014, be struck out with no leave to re-plead.
3.In the further alternative, in exercise of the Court’s inherent jurisdiction, the proceeding be stayed until payment of the following outstanding costs orders made against the Plaintiffs in favour of the Defendants in Supreme Court of Victoria Proceeding S CI 2013 4183:
(a)Order 2 of the orders made by the Honourable Associate Justice Lansdowne on 24 February 2014, that the Plaintiffs pay the Defendants’ costs fixed in the sum of $6,219.20; and
(b)Order 2 of the orders made by the Honourable Justice Ginnane on 24 June 2014, that the Plaintiffs pay the Defendants’ costs fixed in the sum of $9,511.80,
together with interest on the outstanding costs orders pursuant to section 101 of the Supreme Court Act 1986 (Vic).
Once again, the Victorian Bar Duty Barrister Scheme stepped in, and orders were made for the filing of a further amended statement of claim prior to the hearing of the Summons. That document was duly drawn by Mr Gronow of counsel, and included, in summary, the following claims:
(a) the defendants had a duty to construct and operate the Eastlink Freeway in such a manner as not to cause loss damage or nuisance to adjoining properties, including the plaintiffs and the Donvale property;
(b) the defendants negligently failed to construct and operate the Eastlink Freeway in such a way as to prevent adjacent properties being affected by excessive road noise; including failing to construct adequate noise barriers;
(c) the defendants’ operation of the Eastlink Freeway without adequate noise barriers caused the plaintiffs annoyance and discomfort; and
(d) the plaintiffs have suffered loss and damage, in that due to excessive traffic noise, the plaintiffs lost amenity in the Donvale property, and have been caused annoyance and discomfort. They were forced to sell the Donvale property for a sum of more than $225,000.00 less than its previous market value.
The defendants conceded for the purposes of their application that subject to the need for minor amendments and the provision of further and better particulars, the proposed further amended statement of claim disclosed a cause of action known to law, and was not liable to be struck out in whole or in part. However, the defendants submitted that the plaintiffs were unlikely to succeed on the claim in its current form, and in any event, the proceeding ought to be struck out on the basis that, given that the factual matters and allegations raised by the plaintiffs in this proceeding were identical to those raised in the first proceeding, the plaintiffs are prevented by pursuing their claims in this proceeding by reason of the doctrines of res judicata, issue estoppel and Anshun estoppel. The defendants also submitted that the proceeding is otherwise an abuse of process. Alternatively, the defendants submitted that the current proceeding ought to be stayed pending payment of the costs ordered against the plaintiffs in the first proceeding, as the subject matter of both proceedings is identical.
The fact that the subject matter of the first proceeding and the current proceeding is the same was not seriously disputed by counsel for the plaintiffs. On the other side of the bar table, while counsel for the defendants conceded that, given that there had been no determination of the factual and legal disputes between the parties at trial, the main issue in this application was whether the plaintiffs were estopped from bringing this proceeding by reason of an Anshun estoppel, or whether the proceeding ought to be struck out as an abuse of process rather than whether the plaintiffs were barred by reason of res judicata or issue estoppel. Further, as I indicated during the course of the hearing, while the defendants may have a meritorious defence to any claims in nuisance based upon the evidence advanced on their behalf during the course of the application, and based upon the legal principles associated with claims with respect to loss and damage said to be caused by works carried out which are authorised by statute, I would be disinclined to order summary judgment merely upon the merits of the plaintiffs’ claim alone.
The defendants relied upon affidavits sworn by Mr Ashley Wharton and Mr James Clarke, of Ashurst, the solicitors engaged by the defendants. The solicitors deposed to, among other things, the procedural history of the first proceeding, and exhibited relevant documents such as the pleadings, transcripts, rulings and judgments in the first proceeding, correspondence between the parties, key documents such as the Deed, and documents relevant to the plaintiffs’ allegations that their noise abatement measures were unsatisfactory. The plaintiffs relied upon an affidavit sworn by Mr Humphris, which mainly concerned the merits of the plaintiffs’ claim, and the adverse impact said to have been caused by the defendants’ alleged failure to put in place appropriate noise abatement measures adjacent to the Donvale property.
As noted above, the main issue in the application is whether, by failing to bring forward their claims in negligence and nuisance in the first proceeding, the plaintiffs are estopped from bringing these claims concerning the same factual matters in this proceeding by reason of the principles enunciated in Port of Melbourne Authority v Anshun Pty Ltd (‘Anshun’).[4] The defendants also contend that the proceeding is an abuse of process, as this proceeding was brought in an attempt to circumvent the ruling of AsJ Lansdowne and the unsuccessful appeal from her failure to give the plaintiffs an opportunity to re-plead, and is unfair and oppressive to the defendants.
[4](1981) 147 CLR 589.
The principles governing when an Anshun estoppel ought apply have been concisely and usefully summarised by Davies J in the following extract from Whelan Kartaway Pty Ltd v Donnelly (‘Whelan’) (citations omitted):[5]
Anshun estoppel will arise in circumstances where a party to a subsequent proceeding seeks to litigate a claim or defence “which could and should have been litigated in the earlier proceedings”. The estoppel is an “analogical extension” of the doctrines of res judicata and issue estoppel and operates to preclude a litigant from bringing a particular claim where it was “unreasonable” for the litigant not to have brought that claim, or rely on that claim as a defence, in an earlier concluded proceeding. If the litigant was unable to raise the claim or defence in the earlier proceeding, no Anshun estoppel will arise. Equally, the fact that the litigant could have raised the claim or defence in the earlier proceeding does not mean that the estoppel will arise. The test is “based on the reasonableness … of the conduct of a litigant in earlier proceedings”. The mere fact that the matter could have been raised does not mean that it should have been raised for the operation of the estoppel. The “unreasonableness” criterion involves an evaluative element based upon what a litigant could reasonably have been expected to do in the earlier proceeding.
…
The authorities establish that a finding of Anshun estoppel should not be made lightly and a consideration of all the relevant facts bearing on the question of “unreasonableness” is required. This may include the character of the previous proceeding, the scope of any pleadings, the length and complexity of any trial, any real or reasonably perceived difficulties in raising the relevant claim earlier, and any other explanation for the failure to raise the claim previously.
[5][2012] VSC 45 [21] and [23].
The defendants submitted that the tortious cause of action raised by the plaintiffs in this proceeding are causes of action which not only could have been brought in the first proceeding, they should have been brought in the first proceeding, and no explanation has been forthcoming as to why they were not brought forward in the first proceeding. Such an explanation is warranted, given that the evidence is that the plaintiffs consulted a number of solicitors regarding their claim against the defendants, and the defendants’ solicitors had alerted the plaintiffs to the deficiencies in their claim based upon the provisions of the Deed on numerous occasions during the course of the first proceeding and this proceeding. Mr Humphris has not given evidence that he did not know of the existence of the tortious claims.
While the defendants accept the fact that the plaintiffs are self-represented is a relevant factor in determining whether it was unreasonable for the plaintiffs not to bring forward their claims in tort in the first proceeding, it is not determinative. The defendants relied upon the statement of Ferguson AJA (as she then was) in Sahin v National Australia Bank (‘Sahin’) (citations omitted) that:[6]
In reaching the conclusion that I have about Anshun estoppel in this case, I have had regard to the fact that the Sahins are not legally qualified and represented themselves throughout the trial and on appeal. However, of itself this does not mean that special circumstances apply such that Anshun estoppel ought not operate. Were there to be a blanket refusal to apply Anshun estoppel where a litigant did not have legal representation, it would put an opposing represented litigant in an intolerable position – subject always to future litigation by the same protagonist unless res judicata or issue estoppel applied. The represented litigant would be unfairly prejudiced. Therefore, whilst the Sahins’ lack of legal representation is something to be taken into account, that is the only matter weighing against the application of Anshun estoppel and, on its own, it is an insufficient reason for permitting them to prosecute the counterclaim.
[6][2012] VSCA 317 [98].
The defendants relied upon the events which took place in the first proceeding for the purpose of demonstrating that there are no special circumstances in the current case which would warrant the Court deciding to apply the Anshun estoppel, and to support their contentions that this proceeding is an abuse of process.
During the course of the hearing before Lansdowne AsJ, her Honour queried Mr Humphris as to:
(a) whether the plaintiffs had retained, or consulted with solicitors, or proposed to do so;
(b) whether the plaintiffs wanted an adjournment to give them an opportunity to seek legal advice and recast their claim; and
(c) whether the plaintiffs’ case was based entirely on the Deed.
Mr Humphris told her Honour that the plaintiffs had spoken to a number of solicitors, but did not want to incur the costs associated with retaining solicitors, and that the plaintiffs did not want an adjournment to recast their claim. In relation to the final matter, the transcript of the hearing before Lansdowne AsJ reveals the following exchange:[7]
[7]T36-37.
MR HUMPRHIS: …I submitted back in October 15 of last year for the court, I sent copies to the court also, of a couple of sections from the deed. Perhaps may I interrupt, too. I should also thank our friend here for saying that it relies solely upon the deed.
HER HONOUR: Is that correct? That your claim relies solely on the deed?
MR HUMPHRIS: That our friend here said the action relies solely upon the deed.
HER HONOUR: Yes. That is her assertion.
MR HUMPHRIS: That is what she said.
HER HONOUR: Is that correct?
MR HUMPHRIS: I’m happy to go with that.
The defendants submit that these matters weighed heavily in her Honour’s determination not to allow the plaintiffs an opportunity to re‑plead. On appeal, the plaintiffs submitted, through pro bono counsel retained by them, that her Honour was in error in failing to provide the plaintiffs an opportunity to re-plead their case based upon nuisance. This was rejected by Ginnane J, and this proceeding amounts to a collateral attack on that judgment, which is an abuse of process.
The defendants also submitted that it is recognised by the authorities that one category of case where an abuse of process may exist is where a party seeks to relitigate an issue already decided, giving rise to oppression and unfairness to the other party, and bringing the administration of justice into disrepute.[8]
[8]For example, State Bank of New South Wales Ltd v StenhouseLtd and ors (1997) Aust Torts Reports ¶81-423, at 64,086.
The defendants also submitted that the weakness of the plaintiffs’ claims in tort, if not sufficient of itself to warrant summary judgment, are relevant matters to be taken into account when determining whether an Anshun estoppel ought to apply, or in determining whether the proceeding is an abuse of process. In the current case, the building and operation of the Eastlink Freeway was authorised by statute.[9] In Metropolitan Water Sewerage & Drainage Board v OK Elliott Ltd (citations omitted):[10]
It has long been settled that if public authorities or persons do acts which they are authorized by statute to do, and do them in a proper manner, then, though the acts so done work special injury to a particular individual, the individual injured cannot maintain an action at law. He is without remedy unless compensation is provided by the Act, and his only remedy is that given by the statute … But it is equally well settled that if the injury or loss is caused by an act which, notwithstanding the statute containing or incorporating a compensation clause, is not made lawful, the remedy by action is not taken away and is open to the person injured. Statutory powers must be exercised “with reasonable regard to the rights of other people” and if an act is done in excess of the statutory power, or carelessly or negligently, then the person injured can put in force the ordinary legal remedy by action in the Courts of law …
[9]Section 15 of the Eastlink Project Act 2004 (Vic) authorises the Minister to enter into the Deed, which incorporated noise standards, which were complied with.
[10](1934) 52 CLR 134 at 143.
The defendants submitted that, contrary to the plaintiffs’ contentions, the evidence established that the defendants complied with the VicRoads Noise Reduction Policy, as required by the Deed, the causes of action which the plaintiffs seek to pursue, while now legally tenable, have no real prospects of success. Cases with only ‘a sliver of a chance’ should not be permitted to proceed.
Taking the last submission first, counsel for the plaintiffs submitted that the question of whether the defendants have complied with the VicRoads Noise Reduction Policy otherwise adhered to the relevant provisions of the Deed, and have acted reasonably in constructing and operating the Eastlink Freeway, are questions of fact which can only be determined at trial. Further, the fact that these issues and other legal and factual issues associated with the plaintiffs’ claim in tort have not been considered, let alone determined by the Court, means that there can be no basis for dismissing this proceeding by reason of res judicata or issue estoppel.[11]
[11]See Blair v Curran (1939) 62 CLR 464, 531-532; Jackson v Goldsmith (1950) 81 CLR 446.
As for the principles in Anshun, counsel for the plaintiffs submitted that the present proceeding is not precluded by an Anshun estoppel, on the basis that it was not unreasonable of the plaintiffs to fail to raise their tortious claims in the first proceeding, which counsel submitted were ‘legally irrelevant’ to the contractual claims unsuccessfully pursued by the plaintiffs in the first proceeding. This is not a case where there were co-extensive duties in contract or tort, and indeed, the Court has found that there was no contractual duty owed to the plaintiffs. The absence of any judicial determination on the merits of any claim by the plaintiffs against the defendant means that there can be no basis for an Anshun estoppel to arise. Further, while the nub of the plaintiffs’ complaint in this proceeding is the same as in the first proceeding, different facts need to be proved in this proceeding to make good a claim in negligence and/or nuisance than the matters pleaded in the first proceeding. There is no risk of any conflicting judgments arising out of the prosecution by the plaintiffs of the second proceeding.
In my view, the plaintiffs’ submissions, insofar as they assert that there is no Anshun estoppel by reason of the plaintiffs’ claim in tort being ‘legally irrelevant’ to their unmaintainable contractual claim, and by reason of there not having been a final judicial determination on the merits of the plaintiffs’ claims, goes too far. The fact that the plaintiffs might have different causes of action arising out of the same factual circumstances does not make them ‘legally irrelevant’ to each other. In my view, the characterisation of the claims as ‘legally irrelevant’ to each other has no real bearing upon whether an Anshun estoppel arises. In the current case, there was no legal or practical impediment (such as absence of jurisdiction) to the plaintiffs bringing their claims in tort and contract in the one proceeding. They are based upon the same facts, and the plaintiffs’ claims in tort are a simple matter of pleading, as evidenced by the proposed further amended statement of claim. The real issue for determination is whether it was sufficiently unreasonable for the plaintiffs not to bring the current claims in the first proceeding to warrant summary dismissal of the current proceeding. Further, as made clear by Davies J in Whelan,[12] an Anshun estoppel may apply where an earlier proceeding concerning the same subject matter had been compromised prior to adjudication. I see no difficulties in extending this principle to apply where the earlier proceeding had been determined summarily. As noted by Davies J in Whelan:
The underlying public interest is the same: that there be finality in litigation and a party should not be vexed twice in the same matter.[13]
[12][2012] VSC 45 [24].
[13]Ibid [24].
The statement above provides powerful support to the defendants’ contentions that allowing the plaintiffs to pursue their claims in tort in the current proceeding would be to permit an abuse of process, and the circumstances are such that an Anshun estoppel should apply. However, I am conscious that shutting a litigant out from pursuing an arguable claim is a serious matter, and not something to be done lightly. As stated by Kenny JA in Gibbs v Kinna (‘Kinna’):[14]
It should, I think, be borne in mind that whilst the principle discussed in Anshun’s case is designed to foster public and private interests by encouraging parties to advance all their related claims or defences at the one time, thereby diminishing unnecessary duplication of curial and other effort, it seeks to meet these objectives by terminating a litigant’s right to have a court adjudicate upon the merits of claim. It is, I think, on this account that the principle is to be applied only in the clearest of cases.
[14][1999] 2 VR 19, 29.
In Kinna, Kenny JA (with whom Ormiston and Philips JJA agreed) considered the approach adopted by the majority in Anshun, and made, in summary, the following observations:
(a) whether or not it was unreasonable for a party asserting a cause of action in a later proceeding not to have done so in an earlier proceeding depends almost entirely on the particular circumstances of the case;
(b) there are two necessary, but not sufficient pre-conditions which must be established before an Anshun estoppel could be held to arise: first, that the cause of action must be one which could have been raised in the previous proceeding, and secondly, the same or substantially the same facts might arise for consideration in the second proceeding as in the first proceeding;
(c) when considering whether it is unreasonable in the circumstances not to raise a cause of action in earlier litigation, the notion of ‘relevance’ is not particularly helpful, and that the relevant part of the majority judgment in Anshun ought to be confined to defences;
(d) if any judgment or order which might be made on the cause of action in the subsequent proceeding would conflict with a judgment or order in the earlier proceeding, then it will ordinarily be unreasonable to refrain from raising the cause of action in the first proceeding. This factor was the most important factor in Anshun’s case; and
(e) her Honour stated that:[15]
…in cases where there is no risk of inconsistent judgments, to decide whether or not it is unreasonable for a plaintiff not to litigate closely related issues in the one proceeding requires consideration of all the relevant facts, including the character of the previous proceeding, the scope of any pleadings, the length and complexity of any trial, any real or reasonably perceived difficulties in raising the relevant claim earlier, and any explanation for the failure to raise the claim previously.
[15]At [28].
Similarly, in State Bank of New South Wales Ltd v Stenhouse Ltdand ors,[16] which was concerned with whether a party seeking to relitigate issues already decided was engaging in an abuse of process, Giles CJ stated that the Court must consider the particular circumstances of the case, including the importance of the issue sought to be relitigated in the earlier proceeding, the opportunity to fully litigate the issue, the terms and finality of the finding in the earlier proceeding, any plea of fresh evidence, the extent of the oppression and unfairness to the other party and the overall balancing of justice between the parties.
[16](1997) Aust Torts Reports ¶81-423, at 64,089.
Having regard to the relevant considerations in the current case, the position is finely balanced. One can understand the frustration and vexation of the defendants being forced, once again, to defend what they contend is an unmeritorious claim, having previously received a final determination in their favour. However, given that the plaintiffs are no longer pursuing their clearly untenable claims in contract, but are pursuing quite different causes of action, there is no risk whatsoever of any inconsistent judgment, which is a significant consideration facing the courts when considering cases where parties are seeking to relitigate matters. Furthermore, the previous proceeding was dealt with summarily, with only two substantive court hearings, and any prejudice to the defendants could be largely addressed by an order that this proceeding be stayed until the defendants’ costs of the previous proceeding had been paid. This is not a case where the parties have been engaged in protracted litigation, or a long and costly trial. Nor is it a case where a party has agreed to reach a settlement, only to be faced with a new claim based upon a dispute it reasonably believed it had compromised and finalised.
Turning to the conduct of the plaintiffs, on one view, it was ‘unreasonable’ for the plaintiffs not to bring their claims in tort in the earlier proceeding. No doubt, if properly advised, they would have done so. But, despite the absence of any direct explanation on the part of the plaintiffs as to why they did not raise their claims in tort in the first proceeding, it is apparent from the transcript of the hearing before Lansdowne AsJ that Mr Humphris was largely ignorant of the relevant law and quite confounded by the Court process. That conclusion is supported by his apparent failure to understand the clear and direct explanation provided to the plaintiffs by the defendants’ solicitors as to why the plaintiffs’ contractual claim was bound to fail, and their attempts to maintain at least some of these claims in the original statement of claim in this proceeding.
I accept, am bound by, and agree with the authorities relied upon by the defendants to the effect that a party’s status as a self-represented litigant cannot, of itself, be the basis for refusing to enforce an Anshun estoppel where it otherwise ought apply. But it is acknowledged by the authorities as a relevant factor. In this case, I consider the plaintiffs’ prior lack of legal representation to be a matter of some significance, particularly given that there is no risk of inconsistent judgments, and the prejudice to the defendants of allowing the claim to proceed can be largely addressed by making an order in the terms of the alternative relief sought by the Summons. Of course, the prejudice to the defendants is not limited to the legal costs incurred by them, there are always unrecoverable costs and non-compensable inconvenience caused by litigation. But this cost and inconvenience would have been suffered by the defendants had the plaintiffs had their house in order when they commenced the first proceeding.
The current case can be distinguished from circumstances facing the Court in Sahin, where Sahin wished to pursue claims in deceit against the Bank which were based upon the same facts and matters which were the subject of a trial in the County Court and a hearing in the Court of Appeal, although in those proceedings the Sahins sought relief for misleading and deceptive conduct under the Trade Practices Act 1974 (Cth). In the course of the Sahins’ successful appeal to the Court of Appeal against an adverse County Court judgment, Hargrave AJA made a number of detailed findings of fact which directly bore upon the deceit claim sought to be prosecuted by the Sahins. Further, the Court of Appeal granted restitutionary and other relief in favour of the Sahins. Accordingly, in upholding a finding that the subsequent proceeding be stayed, the Court of Appeal found that there was a res judicata and issue estoppel, and, in the alternative, an Anshun estoppel.
In the current case, the plaintiffs seek to press an entirely different cause of action against the defendants than that maintained by them in the first proceeding. There has been no consideration or determination of any of the factual allegations advanced by the plaintiffs in either proceeding. The defendants have not been subjected to lengthy interlocutory processes, a trial, or an appeal. There is no real question as to whether the plaintiffs are prohibited from pressing their claims in the second proceeding by reason of res judicata or issue estoppel.
Turning to the defendants’ contention that allowing the proceeding to continue would be permitting an abuse of process, and fly in the face of the ruling of Lansdowne AsJ and the judgment of Ginnane J, which had the effect of refusing the plaintiffs leave to re‑plead their case, it seems to me that there has been a fundamental change in circumstances between the judgment of Ginnane J and the date of the hearing of the Summons, being the bringing into existence of a properly formulated, legally tenable statement of claim. It was clear from the transcript of the hearing before Lansdowne AsJ that both her Honour and the defendants were aware of a potential claim which might be articulated on behalf of the plaintiffs: however, based upon the statements of Mr Humphris at the hearing, her Honour quite reasonably concluded that the prospects of that claim being articulated were negligible. Ginnane J could find no error in her Honour’s reasoning, and indeed, there was no proposed pleading before him. Now that there is a reasonable articulation of the plaintiffs’ claim, such considerations largely fall away.
In reaching this conclusion, I am mindful of the fact that the question before both Lansdowne AsJ and Ginnane J was, having regard to the clearly untenable nature of the statement of claim, whether the plaintiffs ought to have an opportunity to re-plead. This is essentially a question of practice and procedure. In DA Christie Pty ltd v Baker (citations omitted),[17] Brooking JA stated that:
… it is, generally speaking, at all events, open to the court to exercise a wide discretion in the interests of justice in considering whether an applicant who has failed on the merits may nonetheless succeed on a second application …
It has been said that an interlocutory order affecting the procedure of the litigation may be reviewed if circumstances warrant a review in the course of the proceedings ...
[17][1996] 2 VR 582, 597.
The existence of a tenable, properly pleaded claim which I am not prepared to find is bound to fail, is a relevant change in circumstances which justifies allowing the plaintiffs to pursue their claim, having found an Anshun estoppel ought not apply.
However, my conclusion that the plaintiffs ought not be estopped from bringing their tortious claims in this proceeding, or be precluded from bringing their claims by a finding that they have been engaged in an abuse of process, are significantly influenced by the relatively limited prejudice to the defendants of allowing the claims to proceed, if their costs thrown away by reason of the failed first proceeding are paid. While there are some indicators that the plaintiffs are not well off financially (the plaintiffs’ reluctance to engage solicitors, and their successful application to the Court for a fee waiver), there is no evidence before me that making an order sought by the defendants as an alternative to the primary relief sought by them would stultify the proceeding.[18] The plaintiffs own a property in a relatively affluent suburb of Melbourne, and as such, they may well be cash poor, but may still be persons of substance. My decision to in effect give them a second chance does not relieve them of all of the consequences of poor choices made in the past.
[18]See Phillip Morris Ltd v Attorney-General for the State of Victoria and Anor (2006) 14 VR 538 [97].
I shall hear further from counsel as to appropriate orders, further directions for the conduct of the proceeding, and the question of costs.
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