John Wesley Gilbert as Trustee for the Gilbert Family Trust v Sila Australia Pty Ltd
[2023] WADC 144
•28 NOVEMBER 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: JOHN WESLEY GILBERT as Trustee for THE GILBERT FAMILY TRUST -v- SILA AUSTRALIA PTY LTD [2023] WADC 144
CORAM: REGISTRAR JEYAMOHAN
HEARD: 8 NOVEMBER 2023
DELIVERED : Ex tempore
PUBLISHED : 28 NOVEMBER 2023
FILE NO/S: CIV 4186 of 2023
BETWEEN: JOHN WESLEY GILBERT as Trustee for THE GILBERT FAMILY TRUST
Plaintiff (Respondent)
AND
SILA AUSTRALIA PTY LTD
Defendant (Applicant)
Catchwords:
Procedure - Pleadings - Summary judgment on application of defendant - Whether the matters pleaded are an abuse of process - Whether issue estoppel arises - Relevant principles - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Result:
Application granted
Representation:
Counsel:
| Plaintiff (Respondent) | : | In person |
| Defendant (Applicant) | : | Mr J A Robertson |
Solicitors:
| Plaintiff (Respondent) | : | Not applicable |
| Defendant (Applicant) | : | Williams & Hughes |
Case(s) referred to in decision(s):
Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Coogee Holdings Pty Ltd as Trustee for the Gilbert Family Trust v Sila Australia Pty Ltd [2023] WADC 81
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd (2015) 48 WAR 93
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Westpac Banking Corporation v Anderson [2017] WASC 106
REGISTRAR JEYAMOHAN:
[This decision was delivered extemporaneously on 8 November 2023 and edited from the transcript.]
Introduction
By chamber summons application dated 13 September 2023 (Application), the defendant applies for the following orders:
1.Pursuant to O 16 r 1 Rules of the Supreme Court 1971 (WA), alternatively in the court's inherent jurisdiction, judgment be entered against the plaintiff on the grounds of issue estoppel with the action in CIV 4398 of 2022.
2.The plaintiff pay the defendant's costs of this application and the costs of the action, on a full indemnity basis.
The Application is supported by the affidavits of Gregory John Smith sworn 13 September 2023 (Smith Affidavit) and Ella Keir Thubron sworn 2 November 2023 (Thubron Affidavit). The plaintiff is self‑represented and relies on the affidavit of John Wesley Gilbert sworn 5 October 2023 (Gilbert Affidavit) in opposition to the Application.
The hearing was stood down for a short period to allow Mr Gilbert, who is a self‑represented litigant, the opportunity to confer further with counsel for the defendant about the Application in circumstances where the defendant sought costs of the Application and the action on a full indemnity basis to the extent the defendant is successful. Following conferral, the plaintiff proceeded with the hearing of the Application for determination.
Overview
The facts pleaded by the plaintiff in the present proceeding is substantially the same as the facts in Coogee Holdings Pty Ltd as Trustee for the Gilbert Family Trust v Sila Australia Pty Ltd, CIV 4398 of 2022, with the plaintiff in CIV 4398 of 2022 being Coogee Holdings Pty Ltd in its capacity as trustee of the Gilbert Family Trust.
CIV 4398 of 2022
A summary of the procedural history of CIV 4398 of 2022 is set out in my reasons for decision in respect of those proceedings and I do not repeat them here.[1] Importantly, the order of the court made in CIV 4398 of 2022 dated 17 March 2023 in respect of payment extended to John Wesley Gilbert, the plaintiff in the present proceedings, in his capacity as the director of the plaintiff and beneficiary of the Gilbert Family Trust. The relevant orders being as follows:
[1] Coogee Holdings Pty Ltd as Trustee for the Gilbert Family Trust v Sila Australia Pty Ltd [2023] WADC 81.
1.The proceedings are stayed unless by 4.00 pm on 4 April 2023:
(a)the Plaintiff do pay into court the amount of $10,000; and
(b)the director of the plaintiff, John Wesley Gilbert and beneficiary of the Gilbert Family Trust, Beverly Cheryl Gilbert acknowledge in writing to the defendant they assume liability, jointly and severally, for an amount of $10,000 (along with the cash component in 1(a) above), as security for the defendant's costs up to and including a first mediation conference.
…
(Emphasis added)
The court thereafter stayed CIV 4398 of 2022 on 9 May 2023 pending the order for security for costs being met. By chamber summons filed on 14 June 2023 in CIV 4398 of 2022, the defendant applied for orders to dismiss the plaintiff's action for its and Mr Gilbert's failure to comply with the order and meet payment for security for costs.
The court extended the period for the plaintiff in those proceedings and/or Mr Gilbert to meet payment of the security for costs to 16 August 2023. Ultimately payment was not made and on 22 September 2023 I dismissed the plaintiff's claim in CIV 4398 of 2022.
CIV 4186 of 2023
By writ of summons and statement of claim filed 23 August 2023 (SOC), the plaintiff in the present proceedings relies on the terms of an alleged loan agreement as between the defendant and Coogee Holdings Pty Ltd as trustee for the Gilbert Family Trust entered into on 26 August 2011[2] (Loan Agreement). The plaintiff pleads to being a private person who is a trustee of the Gilbert Family Trust.[3]
[2] SOC, par 3.
[3] SOC, par 1.
The plaintiff pleads to certain express terms of the purported Loan Agreement.[4] Relevantly that the plaintiff was to purportedly provide to the defendant a loan facility (Facility) not exceeding the sum of $1,000,000 and that under the Facility the plaintiff advanced to the defendant the sum of $398,295 on 14 July 2011 (Prior Advance) with the Prior Advance being due and payable with applicable interest.[5]
[4] SOC, par 4.
[5] SOC, pars 4 - 6.
The plaintiff pleads that from time to time the plaintiff made further advances in addition to the Prior Advance pursuant to the Loan Agreement.[6] The plaintiff alleges that in breach of the Loan Agreement as at the date of filing the writ of summons in CIV 4186 of 2023, the defendant remains indebted to the plaintiff in the sum of $351,024 (Outstanding Sum).[7]
[6] SOC, par 7.
[7] SOC, par 10.
The plaintiff pleads at pars 13 - 15 of the SOC, various demands for payment of the Outstanding Sum made by (and on behalf of the plaintiff). The plaintiff claims against the defendant in respect of the matters pleaded the sum of $351,024 being the Outstanding Sum inclusive of interest plus interest and costs.
The defendant entered an appearance by memorandum of appearance filed 5 September 2023. The Application was brought on 13 September 2023.
Legal principles
The legal principles that apply to summary judgment are well‑established and known and are uncontroversial. A defendant may apply for summary judgment pursuant to O 16 of the Rules of the Supreme Court 1971 (WA) (RSC). Pursuant to O 16 r 1 of the RSC, the court may order summary judgment 'if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings'. In the court's inherent jurisdiction, it has the power to prevent its procedures from being abused.[8]
[8] Westpac Banking Corporation v Anderson [2017] WASC 106 [56], citing Sheraz Pty Ltd v Vegas Enterprises Pty Ltd (2015) 48 WAR 93 [4].
Summary judgment should be exercised with great care and will not be exercised unless it is clear that there is no real question to be tried.[9] The court should not dispose of an action summarily where there is a conflict on the facts. Summary judgment must only be granted where the court has a high degree of certainty of the outcome of the proceedings if they went to a trial.[10]
[9] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99.
[10] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57].
The evidence relied upon
The defendant's Application is supported by the Smith Affidavit and the Thubron Affidavit in addition. The plaintiff is self‑represented and relies on the affidavit of Mr Gilbert in opposition to the Application.
I have carefully considered the written submissions filed by the defendant and the submissions made by counsel for the defendant and Mr Gilbert during the hearing of the Application on 8 November 2023.
The defendant's position
The defendant's position was set out in substantive detail in the defendant's outline of submissions filed 3 November 2023. By way of summary, the defendant submits that the plaintiff in the present matter is bringing the same claim of the Gilbert Family Trust that was dismissed by this court in CIV 4398 of 2022.
The defendant submits that the proceedings brought by the plaintiff are an abuse of process because the same claim brought on behalf of the Gilbert Family Trust by its former trustee has already been dismissed by this court. In these circumstances, the defendant submits that this is a clear‑cut case of where the court should grant summary judgment as it would be an abuse of process if the court were to allow this matter to proceed to trial since it would 'be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.'[11] The defendant submits that the plaintiff is attempting to run the same case again.
[11] See generally Westpac Banking Corporation v Anderson [50] - [54].
The defendant further submits that summary judgment should be granted by the court in its favour on the basis of issue estoppel. The defendant submits that issue estoppel arises in the present matter as the issue litigated in the first proceeding, being CIV 4398 of 2022 is identical with what is sought to be litigated in the second proceeding. The defendant submits that on 17 March 2023, the court by consent order, lodged by the defendant on 14 March 2023, ordered Coogee Holdings Pty Ltd as trustee for the Gilbert Family Trust, alternatively, Mr Gilbert to pay security for costs. The defendant submits that Mr Gilbert, on behalf of the Gilbert Family Trust, consented to this order being made. It is the defendant's position that in these circumstances, Mr Gilbert should not be permitted to re‑litigate the same matter on behalf of the Gilbert Family Trust. The defendant submits that issue estoppel can arise from a consent order being made by the court and relies on case law authority in support of this proposition.[12]
[12] Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, 508.
It is the defendant's position that in circumstances where judgment in CIV 4398 of 2022 was entered by a court, it should not be open to the court to investigate the matter or for Mr Gilbert, on behalf of the Gilbert Family Trust to re‑litigate the matter. The defendant submits that the effect of the court order was that the Gilbert Family Trust, in effect, conceded the issues the subject of CIV 4398 of 2022. In support of the position that the first decision was final, counsel for the defendant points to the following matters:
(a)The final judgment must be made by a competent tribunal making a judicial decision.[13]
(b)The decision of the court in CIV 4398 of 2022 was a final decision made by a competent tribunal, namely the District Court who dismissed the plaintiff's case in CIV 4398 of 2022.
(c)The order dismissing the proceeding against the defendant in CIV 4398 of 2022 constituted a final judgment in respect of the claims by the Gilbert Family Trust and gives rise to an issue estoppel in favour of the defendant against the Gilbert Family Trust and Mr Gilbert as the trustee of the Gilbert Family Trust.
[13] See generally Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353, 453 - 454, quoting Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853, 909 - 910 and 933.
The defendant submits that Coogee Holding Pty Ltd (the plaintiff as trustee for the Gilbert Family Trust in CIV 4398 of 2022) and Mr Gilbert have the same legal interest because they both act as trustee for the Gilbert Family Trust. Both plaintiffs in the respective causes of action are litigating in the same interest or capacity, which is attempting to recover an alleged debt from the defendant.
The defendant submits that the issue raised by Mr Gilbert as trustee of the Gilbert Family Trust was the same issue of fact or law which was also raised in CIV 4398 of 2022 and which was finally determined by this court. The defendant submits that in these circumstances, Mr Gilbert, as trustee of the Gilbert Family Trust, in bringing this action is engaging in an abuse of process that has no merit; is also highly oppressive to the defendant, since Mr Gilbert is attempting to run the same case, that has been finally determined by the same court. It is the defendant's position that the relief sought by Mr Gilbert as trustee of the Gilbert Family Trust is the exact same relief from the same cause of action in the exact same circumstances as sought in the previous proceeding.
The defendant submits that there is entire overlap between the facts pleaded in the statement of claim in CIV 4398 of 2022 and in this cause of action. The defendant submits that the statement of claim in the present proceedings was essentially 'cut and pasted' and re‑submitted by Mr Gilbert from CIV 4398 of 2022 and that the circumstances and evidence in this action are precisely the same as in CIV 4398 of 2022.
The defendant submits that further and in the alternative, the matter should be summarily determined because it is an abuse of process, which 'is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute'.[14] It is the defendant's submission that Mr Gilbert as trustee of the Gilbert Family Trust re‑litigating this issue amounts to abusive conduct or an attack on court processes in light of all the surrounding issues. It is the defendant's position that it would be unfair to allow the plaintiff in the present proceedings to proactively litigate this issue without complying with the court orders and court processes Mr Gilbert and the Gilbert Family Trust was subject to in CIV 4398 of 2022 - namely, the giving of security for costs and the making of undertakings including by Mr Gilbert - who agreed to give such an undertaking. Counsel for the defendant submits that it does not promote the interests of justice nor the due administration of the law if the court were to allow a matter that has been dismissed to be re‑litigated.
[14] Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, 519.
The defendant further submits it will be prejudicial to the defendant in their ability to defend the matter, and incur legal costs, if this matter is re‑litigated. It is unlikely, that Mr Gilbert will be able to meet an adverse costs order against him. The defendant points to Mr Gilbert's failure to meet payment of the security for costs ordered in CIV 4398 of 2022 despite the personal undertakings having been given in that matter including by Mr Gilbert himself.
Counsel for the defendant further submitted that during correspondence in respect of the security for costs application in CIV 4398 of 2022, it was asserted that the defendant has strong and obvious defences to the Gilbert Family Trust claim and that position is maintained.
The plaintiff's position
The plaintiff in essence resists the Application on the basis that the present proceedings do not amount to a misuse of the legal system for an ulterior purpose or to gain an unfair advantage as it is not a re‑litigation of an issue that has already been determined by a previous proceeding as the dismissal of CIV 4398 of 2022 was not based on any decision of the merits of the case in that matter. Rather, those proceedings were dismissed as a result of the plaintiff's failure to meet payment of the security for costs ordered. Mr Gilbert advanced a similar position in resisting the defendant's submission that any issue estoppel arose.
The plaintiff submits that this present proceeding is not inconsistent with the previous action, it is similar. In response to the defendant's position that these proceedings simply amounted to an attempt by the Gilbert Family Trust to relitigate proceedings that have been dismissed the subject of CIV 4398 of 2022, the plaintiff conceded that the present proceeding is 'the sole remaining option for the Gilbert Family Trust to potentially achieve justice, that is the repayment of overdue debt'.
The plaintiff acknowledged that the dismissal of CIV 4398 of 2022 was due to the plaintiff's failure to provide security for costs. In the course of submissions, and in the context of the dismissed proceedings, being CIV 4398 of 2022, Mr Gilbert made comment about the legal advice purportedly provided by the then solicitors for the Gilbert Family Trust. Those submissions are not relevant here.
The plaintiff submitted that the present proceedings do not amount to a misuse of the legal system for an ulterior purpose or to gain an unfair advantage. Nor are the proceedings malicious, vexatious, oppressive or without probable cause. In support of this, the plaintiff submitted that the present matter is not seeking to relitigate an issue that has already been determined by a previous proceeding because the last case, being CIV 4938 of 2022, was not dismissed on the merits of the case.
The plaintiff submitted that the plaintiff adopted a similar position on the question of issue estoppel.
Analysis
I have carefully considered the written submissions and the evidence that the parties have sought to rely on in respect to this Application.
The Application presently before this court arises out of proceedings brought in CIV 4186 of 2023 by John Wesley Gilbert in his capacity as Trustee for the Gilbert Family Trust. That is, in the present proceedings, Mr Gilbert has replaced himself for Coogee Holdings Pty Ltd as trustee for the Gilbert Family Trust. Importantly, in both instances both Mr Gilbert and Coogee Holdings Pty Ltd brought the respective proceedings in their capacities as trustee for the Gilbert Family Trust at the relevant period.
The principles in relation to the determination of applications for summary judgment are well established and summarised in Westpac Banking Corporation v Anderson. The issue of leave with respect to the bringing of the Application does not arise here as the application was brought well within the 21‑day period contemplated in O 16 r 1(1) of the RSC.
The submission put by the defendant to this court is that Mr Gilbert has simply changed the trustee of the Gilbert Family Trust to himself and is in effect purporting to bring the same cause of action on behalf of the Gilbert Family Trust that has already been dismissed by this court. By way of summary the defendant submits that summary judgment should be granted by the court in its favour on the basis of issue estoppel for the following reasons. That issue estoppel arises here in circumstances where on 17 March 2023 the court by consent order lodged by the defendant on 14 March 2023 ordered the Gilbert Family Trust or alternatively Mr Gilbert to pay security for costs. The defendant submits that Mr Gilbert on behalf of the Gilbert Family Trust consented to this order being made and should not be permitted to relitigate the same matter.
I am mindful that the plaintiff is a self‑represented individual and the opportunity was provided to the plaintiff in court to further confer with counsel for the defendant in respect of the Application. Despite that conferral, the plaintiff elected to proceed with the Application.
Nothing by way of any substantive submission has been put to the court by the plaintiff to rebut the arguments raised by the defendant as to why matters of issue estoppel and/or an abuse of process arise. Having had regard to the affidavit of Mr Gilbert and also the submissions put by the plaintiff to the court, the plaintiff has not resisted the application in any meaningful way.
The plaintiff, by way of submission, has confirmed and informed the court that the cause of action in the present proceedings is, in fact, similar to the proceedings brought by Coogee Holdings Pty Ltd as trustee for the Gilbert Family Trust in CIV 4398 of 2022. A consideration of the pleaded claim in both proceedings confirms this. It follows that in these circumstances it is difficult to understand how the plaintiff can maintain that it remains open to the plaintiff to look to pursue the identical cause of action and that this conduct does not amount to an abuse of the court's processes.
In all of the circumstances, and having had regard to the affidavit evidence before me and the submissions put to the court in addition to the writ of summons and SOC in these proceedings and CIV 4398 of 2022, I am of the view that the plaintiff has not met the evidentiary onus required of the plaintiff to show why summary judgment should not be given and that there remains a triable issue.
Conclusion
For these reasons, I conclude that judgment be entered against the plaintiff in respect of the action.
Costs
In circumstances where the Application has been successful, it is appropriate that the defendant be awarded its costs of the Application. Over the course of the hearing, defendant's counsel did not press for costs on an indemnity basis, and I would not be minded to award costs on that basis in any event.
I consider the appropriate costs order therefore to be that the plaintiff pay the defendant's costs of this Application and the costs of the action to be taxed, if not agreed.
Orders
I make the following orders:
1.Judgment be entered against the plaintiff in respect of the action.
2.The plaintiff pay the defendant's costs of this application and the costs of the action to be taxed, if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
TA
Court Officer
28 NOVEMBER 2023
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