John v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse
[2015] WADC 22
•13 MARCH 2015
JOHN -v- DENWEST NOMINEES PTY LTD t/as CUNDERDIN ROADHOUSE [2015] WADC 22
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 22 | |
| Case No: | APP:104/2014 | 27 FEBRUARY 2015 | |
| Coram: | BIRMINGHAM QC DCJ | 13/03/15 | |
| PERTH | |||
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | JOHNSON JOHN DENWEST NOMINEES PTY LTD t/as CUNDERDIN ROADHOUSE |
Catchwords: | Workers' Compensation Injury and Management Act 1981 Appeal from arbitrator's dismissal of s 58 application – Whether prior determination precluded further application whether Magistrate Court judgment precludes recovery under s 23 of Act – Notice of contention Whether proceedings an abuse of process – Arbitrators reasons upheld – Abuse of process established. |
Legislation: | Workers' Compensation Injury and Management Act 1981 |
Case References: | Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 Reichel v McGrath (1889) 14 App Cas 665 Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4 Van der Lee & Others v the State of New South Wales [2002] NSWCA 286 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
DENWEST NOMINEES PTY LTD t/as CUNDERDIN ROADHOUSE
Respondent
ON APPEAL FROM:
Jurisdiction : WORKCOVER WA
Coram : ARBITRATOR HOLYOAK-ROBERTS
Citation : A6438
Catchwords:
Workers' Compensation Injury and Management Act 1981 - Appeal from arbitrator's dismissal of s 58 application – Whether prior determination precluded further application - whether Magistrate Court judgment precludes recovery under s 23 of Act – Notice of contention - Whether proceedings an abuse of process – Arbitrators reasons upheld – Abuse of process established.
Legislation:
Workers' Compensation Injury and Management Act 1981
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : Mr A Stewart
Respondent : Mr R Nash
Amicus Curiae : Mr N P Van Hattem appeared for WorkCover WA
Solicitors:
Appellant : Chapmans
Respondent : GG Legal
Amicus Curiae : State Solicitor of Western Australia
Case(s) referred to in judgment(s):
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Reichel v McGrath (1889) 14 App Cas 665
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4
Van der Lee & Others v the State of New South Wales [2002] NSWCA 286
- BIRMINGHAM QC DCJ:
[This judgment was delivered extemporaneously on 27 February 2015 and edited from the transcript]
1 On 30 September 2014 Arbitrator Holyoak-Roberts dismissed the appellant's application made pursuant to s 58 of the Workers' Compensation Injury and Management Act 1981 (the Act) wherein he sought an order for the commencement of weekly payments of compensation, in respect of the period from 13 November 1995 to 18 June 1996.
2 The learned arbitrator determined that there was no jurisdiction to determine the question of liability to make weekly payments pursuant to s 58 of the Act insofar as there was no dispute as to the liability to pay and further, that pursuant to s 23 of the Act the appellant was not entitled to compensation insofar as the judgment for the sum claimed had been obtained in his favour against the respondent employer independently of the Act. The appellant now seeks to challenge the dismissal of his application.
3 The respondent says that the arbitrator's determination should be upheld for the reasons given. Further, by a notice of contention, the respondent says that in addition to the reasons given, the arbitrator should have found that the proceedings conducted by the appellant is an abuse of process insofar as it was an attempt to re-litigate issues that had been finally determined in other proceedings.
4 Pursuant to s 247 of the Act a party may with the leave of the court appeal the arbitrator's decision. Leave is not to be granted unless a question of law has evolved and the amount on issue in the appeal is at least $5,000.
5 I am satisfied that these matters give rise to questions of law and, accordingly, leave is granted.
Background
6 The proceedings have a sorry history that needs to be recounted to enable a more complete understanding of the matter and the manner in which the issues were resolved by the learned arbitrator and fall to be determined in this appeal.
7 Following a period of unemployment, the appellant was employed by the respondent as a cook at the Shell Roadhouse at Cunderdin from 6 August 1995 to 17 September 1995 (approximately six weeks). The appellant says that throughout that period, the respondent's manager, Mrs Pauline Walker, subjected him to such criticism, harassment, humiliation and close supervision that his physical and mental condition deteriorated to such an extent that he has suffered depression.
8 In April 1996, some seven months after he had ceased to work for the respondent, the appellant was diagnosed as having suffered a work related injury pursuant to the Workers Compensation and Rehabilitation Act 1981. He lodged the claim for compensation on 23 May 1996.
9 Liability was disputed by the respondent. Ultimately the matter was referred to conciliation. The matter for determination at the conciliation was the appellant's entitlement to weekly wages pursuant to s 58 of the Act.
10 On 12 June 1998 a conciliation conference was conducted with an officer of the Conciliation Review Directorate. The parties reached an agreement whereby the respondent agreed to accept responsibility to pay the appellant's weekly wages from 19 November 1995 to 18 June 1996 on the basis that the appellant was totally incapacitated as a result of a work related injury during that period. The wages said to be owed to the appellant were agreed in the sum of $11,331.60.
11 It was agreed that the wages would be paid by monthly instalments commencing on 30 August 1998. A certificate recording the agreement resolving the matter was signed by the conciliation officer [AB 25-26].
12 The respondent did not have workers' compensation insurance in place in respect of this claim. The respondent failed to make the payments referred to in the conciliation agreement.
13 The appellant did not seek to register the agreement pursuant to s 76 of the Act.
14 On 8 November 2002 the appellant commenced proceedings in the Magistrates Court seeking payment of the agreed sum. The action proceeded to trial.
15 On 25 November 2005, 10 years after the appellant had ceased employment, the appellant obtained judgment in relation to the agreed sum, that is to say $11,331.60. Whilst the respondent was successful in a counterclaim in respect of some funds owed to it by the appellant, for the present purposes, that matter is not relevant.
16 On 25 January 2006, in response to a request for payment of the judgment sum, Mr Michael Walker, a director of the respondent, informed the appellant that the respondent had ceased trading in 1997 and existed in name only with no assets.
17 On 22 October 2008 the respondent was voluntarily deregistered and thereafter defunct.
18 On 21 January 2010 – some 16 months later - the appellant sought to enforce the judgment against the directors of the respondent, namely Michael John Walker and Pauline Kay Walker. On 9 February 2010 that application was refused by Magistrate Cockram (AB31).
19 On 17 February 2010, the appellant appealed the magistrate's decision to the District Court.
20 On 24 May 2010 in App No 14 of 2010 his Honour Judge Staude dismissed the appeal and ordered that the appellant pay Mrs Walker's taxed costs of the appeal. In the intervening period Mr Walker had succumbed to cancer and died.
21 On 14 June 2010 the appellant lodged an appeal from the decision of Judge Staude to the Supreme Court in Appeal CACV 59/2010.
22 On 7 September 2010 the appeal was discontinued. The appellant was ordered to pay the second respondent [Mrs Pauline Walker] taxed costs of the appeal including reserved costs.
23 On 21 July 2010 the appellant had commenced proceedings by way of writ of summons in District Court action number CIV 2211 of 2010 against Mrs Walker.
24 Mrs Walker filed an appearance to the writ on 9 September 2010; two days after the appeal had been discontinued. It is not apparent whether Mrs Walker had notice of the intended claim at the time of settling the appeal. Counsel for the appellant was unable to say whether notice of the proposed action had been given. The timing of events and the appellant's subsequent conduct suggests that she was not informed.
25 In the statement of claim filed in the District Court action, the appellant sought to recover from Mrs Walker, inter alia, the sum of $11,331.60 – the same sum relating to his loss of wages (as assessed at the conciliation agreement on the determination of the matter under s 58).
26 The statement of claim pleaded the relevant history and alleged that Mrs Walker deregistered the respondent in these proceedings in knowledge of an outstanding liability to the appellant and thereby 'deliberately and fraudulently' attempted to avoid liability to the appellant arising out of the Local Court action and in disregard of her duties as a director. It is further alleged breaches of s 601AA of the Corporations Act 2001 in relation to alleged insolvent trading during the 10-year period from June 1998 to October 2008. The appellant was informed in 2007 that the respondent had not traded since 1997.
27 The loss and damage claimed by the appellant included the loss of wages (after set off of the sum claimed in the counterclaim), together with legal costs (of not less than $20,000) and loss of enjoyment of life, stress and anxiety.
28 The claim was defended by Mrs Walker.
29 It is apparent from the particulars of damage filed by the appellant on 15 March 2011 that the sum claimed by him in that action is the same $11,331.60 in respect of wages said to be due for the period that the plaintiff was employed by the respondent. It is the same sum that was the subject of the earlier Magistrates Court action.
30 In due course, a pre-trial conference was scheduled on 13 July 2011. The appellant was required to attend the conference in person. On 12 July the appellant's solicitors submitted a medical certificate to excuse the plaintiff from attendance.
31 At all material times during these proceedings the appellant has at all times resided in Shepparton, Victoria.
32 The conference proceeded on the scheduled date with the appellant being in attendance via telephone from Victoria. The appellant was represented by his solicitor Mr Stewart at the conference. Counsel for the appellant, Mr Stewart, confirmed that he communicated with the appellant during the conference.
33 The action was agreed to be settled upon terms whereby Mrs Walker agreed to not enforce the costs orders in favour of her against the appellant (when sued in her capacity as a director of the then defunct respondent) in the District Court Appeal number 14 of 2010 and Supreme Court appeal number CACV 59 of 2010 and that the appellant and Mrs Walker would each release and forever discharge the other from all claims, actions, demands or costs either has or may have against the other.
34 The circumstances leading to the settlement and the terms agreed are relevant in the arbitration proceedings. I will return to this aspect of the proceedings and the conduct of the appellant and his solicitors in the mediation process in the District Court action and its place in these proceedings shortly.
35 In accordance with the concluded settlement agreement, the District Court action was dismissed with no order as to costs.
36 I pause to observe that having regard to the matters pleaded – the appellant's claim in that action was at its highest fanciful. It seemingly had little prospect of success.
37 Notwithstanding the settlement of the District Court action, on 27 March 2013 the appellant through his solicitors sought to have the respondent reinstated on the register of companies. It was restored to the register of companies on June 2013.
38 The appellant commenced the proceedings by way of an application to WorkCover on 17 July 2013. [A little over two years after the District Court proceedings has been settled.]
39 In the application the appellant seeks the payment of wages from 13 November 1995 to 18 June 1996 – being the sum of $11,331.60 the subject of the previous proceedings in the Magistrates Court and later in the District Court.
40 On 30 September 2014 the application was dismissed.
41 I turn now to the appeal and the grounds relied on by the appellant.
Ground 1
The learned arbitrator erred in finding that there was no jurisdiction to determine the question of liability to make weekly payments pursuant to s 58 of the Act
42 Pursuant to s 58 of the Act an arbitrator has authority to determine liability for weekly payments of compensation. The arbitrator in her decision (par 25) noted that the jurisdiction was enlivened when there was a dispute as to the liability to make the payments.
43 The arbitrator properly recognised that the respondent was uninsured and therefore the claims procedure prescribed in s 57B applied.
44 Pursuant to s 174 of the Act where an employer is not insured for liability to pay compensation to the appellant under the Act, WorkCover WA has to pay with the compensation from the common fund subject to the right to recover payments from the responsible officer of the body corporate, namely Mrs Walker.
45 Mr Van Hattem who appeared for WorkCover at the arbitration confirmed that WorkCover would seek to recover any sum that it pays to the appellant from Mrs Walker (ts 28 - 29).
46 At par 52 of her reasons, the learned arbitrator noted that the appellant had accepted the conciliated agreement and sought to enforce it by successfully obtaining judgment in the Magistrates Court. The appellant had further acknowledged the agreement as to the sum due by seeking enforcement of payment in other jurisdictions in separate causes of action.
47 The arbitrator considered that what was in dispute was a question of enforcement not a liability to make weekly payments and accordingly there was no dispute as to the liability to make weekly payments. Accordingly the application was dismissed.
48 Counsel for the appellant points to s 58(2) and that the circumstances are such that s 57B(1) of the Act applied. Accordingly, insofar as a period of 17 days has elapsed since the circumstances arose and the worker had not received the first of the weekly payments claimed, the arbitrator may hear the application to determine liability to make weekly payments.
49 At the time of making the application the appellant had not received the weekly payments. It was submitted that as a consequence there remained a dispute insofar as payments had not been made – the arbitrator's jurisdiction to hear the application was determined.
50 The respondent says that it conceded at the arbitration that there was no issue that the appellant was incapacitated for the period from 13 November 1995 to 18 June 1996 on the basis that it had been previously accepted in the agreement reached at conciliation in 1998 and which later formed the basis of the Magistrates Court judgment.
51 It was submitted by the respondent that as there was a judgment in existence it was not open to the appellant to initiate the 2013 proceedings with WorkCover. It would in essence seek to re-agitate the liability of the respondent for compensation for the same period and in the same amount as previously resolved.
52 At pars 49 – 54 of her reasons the learned arbitrator observed:
49 A dispute existed in 1998 when the appellant commenced an application at WorkCover, or its equivalent, for the payment of weekly compensation of the same period as claimed in this application.
50. That dispute appeared to me to be resolved at conciliation. The terms of the agreement at conciliation were recorded in a conciliation certificate dated 12 June 1998. The first outcome is 'the employer has agreed to accept responsibility to pay the worker weekly wages between the periods 13 November 1995 and 18 June 1996'. The second outcome quantifies this to be $11,331.60.
51. This period and the amount from [sic form] the very basis of this application.
52 The appellant has accepted the conciliated agreement and sought to enforce it, successfully obtaining judgment in the Magistrates Court. The appellant has further accepted the agreement by seeking enforcement and/or payment in other jurisdiction under different causes of action. At no stage has the appellant sought to set aside the agreement as a sham or otherwise. The matter now said to be in dispute is not, in fact, in dispute.
53 What is in dispute is enforcement, not liability to make weekly payments. However, I do not have the power or authority under section 58 to enforce payment, only the power to determine liability to make weekly payments.
54. It seems to me, therefore, the most appropriate course of action would have been to rely on section 76 of the Act and seek the director to record a memorandum of agreement which by operation of section 76(1) should be enforceable as an award or order made by an arbitrator.
53 When one has regard to the operation of s 58 it is apparent from the certificate issued in 1998 [AB25] that the relevant question for determination on the application that was referred to conciliation was the question for determination under s 58 of the Act, that is to say, the liability to pay weekly payments. A determination was made pursuant to s 58 by way of the agreement reached at conciliation without trial.
54 That agreement remains in force and is still sought to be enforced by the appellant in the Magistrates Court judgment obtained in 2002.
55 In my view the learned arbitrator was correct in finding that there was nothing to determine under s 58, that is to say, the liability to pay weekly wages. That matter was resolved on a previous s 58 application and has not been disturbed.
56 To permit a subsequent application on the basis that the judgment amount had not been paid would simply run the risk of an inconsistent outcome or judgment on the next occasion whilst a judgment in relation to the first determination remains in force and is sought to be enforced by the appellant.
57 In my view the learned arbitrator was correct. I dismiss ground 1 of the appeal.
Ground 2
That the learned arbitrator erred in determining that s 23 of the Act had application notwithstanding that the appellant had not received payment of the compensation for the period 13 November 1995 – 18 June 1996
58 It is submitted by the appellant that the purpose of s 23 of the Act is to ensure that a person is not compensated twice.
59 Counsel for the appellant referred to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 69, and submitted that the primary object of statutory construction is to construe the relevant provision that is consistent with the language and purpose of all of the provisions of the statute. It was submitted that as s 23 of the Act was amended in 2004 the historical context in which the section previously operated should be considered. The appellant submitted that s 23 should be construed with regard to its historical context and confined to circumstances where workers have obtained compensation or a judgment outside of the State – that is to say – to place a geographical limitation on s 23(1)(b).
60 As submitted by Mr Van Hattem appearing amicus for WorkCover, legislative history and extrinsic materials cannot displace the meaning of the statutory text: FederalCommissioner of Taxation v Consolidated Media Holdings Ltd(2012) 250 CLR 503 [39].
61 Section 23(1)(b) has a plain meaning and unambiguous effect. I do not accept that the section should be construed so narrowly as the appellant contends. The section is clear and unambiguous. It is unnecessary to resort to its legislative history or any explanatory memoranda.
62 Relevantly s 23(1)(b) provides:
23. Person not to be compensated twice
(1) Compensation under this Act is not payable in respect of anything to the extent that —
(a) …
or
(b) judgment has been obtained against the employer independently of this Act.
64 In my opinion, the appellant having obtained judgment against the respondent employer independently of the Act in respect of wages for the period claimed, compensation is not payable under the Act in respect of a claim in respect of the same entitlement.
65 The learned arbitrator was correct in finding that by reason of the judgment in respect of weekly payments claimed in respect of wages for the period 19 November 1995 – 18 June 1996 there is no further entitlement payable under the Act.
66 To permit the appellant to proceed with a re-determination of that same issue opens the opportunity or the risk of inconsistent judgments, particularly in circumstances where the current judgment, the subject of the Magistrates Court proceedings, remains in force and, indeed, is still being pursued by the appellant.
67 Ground 2 is dismissed.
68 In the circumstances the appellant's appeal must be dismissed.
Notice of contention
69 Whilst the arbitrator's decision can be upheld on the grounds stated, it is appropriate that I address the matters raised in the respondent's notice of contention.
70 In addition to submitting that the arbitrator's judgment be upheld for the reasons stated by the learned arbitrator, the respondent submitted that the appellant's claim could not succeed as it was the subject of res judicata or alternatively issue estoppel by reason of the judgment in Magistrate Court action PER/GSUM/23374/2002. It was further submitted that the claim should be struck out as an abuse of process or alternatively that it was unconscionable for the appellant to maintain the claim by reason of the appellant's conduct in the earlier proceedings.
71 The respondent says that when regard is had to the whole of the proceedings, they have been pursued by the appellant in an oppressive and unconscionable manner and as such constitute an abuse of process.
72 The respondent points to a number of matters, including the conduct of the appellant in:
• electing to pursue the claim in compensation to judgment of the Magistrates Court;
• thereafter pursuing enforcement of the judgment through the various processes against the directors of the respondent, including pursuing two unsuccessful appeals, to the District Court and the Supreme Court;
• at the mediation on 13 July 2011 of the District Court action, entering into a settlement with Mrs Walker, which included the giving of mutual releases from each party and resulting in Mrs Walker releasing the appellant from adverse cost orders, obtained against him in the two unsuccessful appeals initiated on the earliest occasion;
• representing through his counsel at that mediation that:
• no further claims arising out of or in connection with the workers' compensation claim by the appellant would ever be brought against her again in the future; and
• the matter was for once and for at an end and brought to an end all matters the subject of the history of litigation between the parties.
• inducing Mrs Walker to believe that all claims against her for personal liability, in respect of the workers' compensation claim had been released and discharged;
• not disclosing at the time of entering into that settlement agreement, an intention to have the respondent, a de-registered company, reinstated in order to make a fresh claim for compensation under the Act;
• Commencing the 2013 proceedings and thereby exposing Mrs Walker to personal liability under s 174AA of the Act, insofar as the respondent has no means to pay the amount that might be ordered under s 58;
• Contemporaneous with the application to WorkCover continuing to seek enforcement of the Magistrates Court's judgment in respect of the same sum claimed. On 16 February 2015 the appellant's solicitors served on the respondents solicitors a notice, calling upon the director of the respondent, namely Mrs Walker, to attend the Magistrates Court in Hay Street, Perth on 20 March 2015 at 9.30 for a means inquiry, in an effort to see what steps could be taken to satisfy the judgment that was obtained some 13 years ago.
73 It is sufficient that I deal with these matters generally. There is a commonality in the conduct complained of and the total compass of that conduct is appropriately embraced in the concept of whether the proceedings issued by the appellant are an abuse of process.
74 As observed by Buss JA [10] – [18] and Murphy JA [118] in Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4 the principles of abuse of process are not confined to the doctrines of res judicata or issue estoppel or Anshunestoppel. The court can invoke the principles to prevent attempts to re-litigate an issue that has in substance been litigated and determined in earlier proceedings or where even if an estoppel is not established, the proceedings in question are unfairly burdensome or unjustifiably oppressive.
75 Clearly the focus when considering the issue of abuse of process is on matters of substance not form: Sheraz [20] (Buss JA).
76 In the context of these proceedings it is appropriate to consider the whole of the appellant's conduct subsequent to his employment with the respondent for a six week period in July – August 1995.
77 It is apparent that the appellant elected to pursue the claim for compensation to judgment following conciliation in the Magistrates Court and obtained judgment. Thereafter he pursued enforcement of that judgment through various processes including proceedings issued against the directors of the respondent including pursuing unsuccessful appeals to the District Court and subsequently to the Court of Appeal.
78 In proceedings initiated by the appellant against Mrs Walker – a director of the respondent at a time when that company was defunct in District Court action CIV 2211 of 2010 the appellant sought to re-litigate the same issues, that is to the say the payment of wages claimed for the relevant periods and agreed in the sum of $11,331.60.
79 It is apparent that at the mediation conference on 13 July 2011 that matter was settled as were all matters between Mrs Walker and the appellant and mutual releases given. The respondent was then defunct and not capable of being a party to those proceedings. The cause of action sought to be enforced against Mrs Walker was in respect of the liability of the respondent to the appellant.
80 I am satisfied that on the proper construction of that agreement between the appellant and Mrs Walker it was the common intention of the parties that the benefit of the settlement agreement concluded would inure to the respondent if so required.
81 In my view 'it went without saying' that the release granted by Mrs Walker in respect of the adverse costs orders against the appellant in two unsuccessful appeals - and her costs to date in the District Court proceedings in which the appellant seemingly enjoyed little prospect of success - brought to an end all of the proceedings arising out of or in connection with the appellant's employment with the respondent in July-August 1995.
82 In the course of the proceedings before the arbitrator, statutory declarations completed by Mrs Walker and her solicitor Mr Dale deposed to events at the pre-trial conference held in relation to the District Court action and to matters discussed. The appellant's solicitor objected to such evidence on the basis that it disclosed without prejudice communications.
83 At the hearing below the matter was resolved on the basis of those declarations would be received into evidence and the counsel for the respondent correction, counsel for the appellant, who was present at the mediation proceedings, would not be permitted to appear or cross examined insofar as he might necessarily be a witness.
84 The matter was resolved on the basis that the counsel for the appellant did not seek to cross examine, or put in issue, the substance of the material contained in the statutory declarations by Mrs Walker and Mr Dale.
85 I questioned counsel for the appellant in relation to his position in relation to that matter. His answers were a little less than forthcoming. I am satisfied, that in the absence of any material to contradict the contents of those declarations that the contents should be accepted as a true and faithful account of what occurred at the mediation proceedings that resulted in a settlement of District Court action CIV2211 of 2010.
86 In my opinion, the learned arbitrator was wrong to confine the use of those communications and that material and to construe the outcome of the agreement reached as only relating to the proceedings between the appellant and Mrs Walker.
87 That evidence was relevant and admissible in relation to whether the appellant in these proceedings was acting oppressively and the conduct of the proceedings an abuse of process. The evidence supports the respondent's claim that the appellant is, by reasons of the settlement of the action, estopped from commencing any proceedings that might revisit the same claim upon Mrs Walker.
88 In Van der Lee & Others v the State of New South Wales [2002] NSWCA 286 [62], in relation to the question of the admissibility of without prejudice communications, his Honour Hodgson J says, as follows, that:
However, it is not necessary to determine that question in this case. Section 11(2) does have the effect that, when evidence is tendered that could be evidence of an abuse of process, albeit evidence of without prejudice settlement negotiations, the court may receive that evidence on the voir dire; and then, if that evidence does either by itself or in combination with other evidence establish an abuse of process, the court may rule the evidence admissible and make the appropriate orders to deal with that abuse of process.
In my opinion, the powers of a court with respect to abuse of process include its powers to receive evidence, and the authorities relied on by the claimants show that, at common law, communications evidencing abuse of process will not be protected by without prejudice privilege.
89 In my view, that was the very circumstance of this case: it was apparent, from the material provided in support of this appeal, that the appellant is seeking to enforce the Magistrates Court judgment. The appellant further sought to summons the officer of the respondent to be examined at a means inquiry on 20 March this year. The summons was issued on 11 February 2015.
90 There can be little doubt that the appellant still relies upon the judgment obtained in the Magistrates Court in 2002.
91 Furthermore, the appellant still persists in seeking to recover those funds from the company and to require the officers of that company to attend for examination. By any measure the conduct of the appellant in these proceedings can be fairly described as an abuse.
92 As counsel for the respondent put it, the only motive the appellant has to examine Mrs Walker on 20 March 2015 is to vex her. He points to the appellant's letter to ASIC in 2013 [AB 63] to highlight that the appellant was then were aware that the respondent had no assets and was unable to pay the judgment debt owed. The purpose of restoring the respondent to the register was to enable the claim to be made pursuant to the Act.
93 In Reichel v McGrath (1889) 14 App Cas 665, 668, Lord Halsbury LC said:
It would be a scandal to the administration of justice if the same question having been disposed of in one case the litigant were permitted to change the form of the proceedings and set up the same case again ...
I believe there must be an inherent jurisdiction in every court of justice to prevent just an abuse of its procedure.
See also Sheraz [9] (Buss AJ).
94 The claims that the appellant sought to litigate in the District Court proceedings arose out of and directly related to the same issues that are sought to be litigated in these proceedings. They are the same issues that are already the subject of a separate judgment in the Magistrates Court.
95 In my view the conduct of the appellant in seeking to pursue the claim before the learned arbitrator was an abuse of process.
96 Counsel for the appellant concedes that if the matter before the learned arbitrator was to proceed to a determination of the liability to make weekly payment pursuant to s 58 as was intended by the appellant – there was a real prospect that following hearing a different outcome might result – an outcome inconsistent with the judgment that the appellant still seek to obtain the benefit of today.
97 Further, in relation to the whether the proceeding are oppressive the question of delay and the extent to which the respondent has been prejudiced if required to proceed to a trial on the same issue that was resolved in 1998 - 19 years later must be considered.
98 The male director of the respondent, Mr Walker, has died in the interim. The whereabouts of the doctors are unknown. Clearly, the respondent would be prejudiced if the matter was to proceed in circumstances where there is already a judgment in respect of the same matter. It would prejudice of the respondent to have to re-litigate the matter.
99 By the proceedings issued before the learned arbitrator the appellant sought to enliven proceedings that would effectively impact directly upon Mrs Walker and require her to pay a judgment sum that was not otherwise her responsibility and, in any event, would have been the subject of a legitimate compromise in respect of all matters in issue between her and the appellant.
100 In substance, ignoring the camouflage, the appellant is seeking to do in a different forum the same that he has sought to do through the process of harassment of the directors of the respondent over many years.
101 The appellant is seeking to pursue matters arising out of a brief period of employment over 19 years ago. The matters having been duly resolved and settled 'once and for all' in 2011 any fresh proceeding by the appellant in respect of the same matter gives rise to an oppressiveness and unfairness that threatens the integrity of the administration of justice if it is permitted to continue. It flies in the face of an express agreement that resolved all matters in issue between the parties.
102 To adopt the words of Lord Halsbury LC - it would be a scandal to the administration of justice if the same question having been disposed of in one case if the appellant were permitted to change the form of the proceedings and set up the same case again.
103 Further, to allow the appellant to recant from the settlement of all matters – in the face of an express statement that the matters between them were at an end – would be to sanction unconscionable dishonest behaviour in the face of the court.
104 In my opinion the learned arbitrator should have upheld the respondent's intention that the proceedings were an abuse of process. Further, that the appellant continues to separately pursue enforcement of the Magistrate Court judgment against the respondent simply highlights the appellant has and continues to engage in conduct that amounts to an abuse that it is unjustifiably oppressive, unfair, unreasonably burdensome and unconscionable: (see Sheraz [4] – [12] (Buss AJ)).
105 I uphold ground 2 in the Notice of Contention.
106 Order:
1. There be leave to appeal;
2. Ground 2 of the Respondents' notice of contention be upheld;
3. The appeal be dismissed;
4. The question of costs be reserved to 13 March 2015.
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