Lee v Keddie - [2009] NSWSC 777

CITATION: Lee & Ors v Keddie & Ors [2009] NSWSC 777

HEARING DATE(S): 15.07.09

JUDGMENT DATE :
7 August 2009

JUDGMENT OF: Nicholas J

DECISION: par 34

CATCHWORDS: ESTOPPEL – issue estoppel – whether order for dismissal of earlier proceedings precluded defendant raising similar issues in later proceedings for defamation – relevance of forensic context in which order made – general principles considered

LEGISLATION CITED: Civil Procedure Act 2005
Defamation Act 2005

CATEGORY: Principal judgment

CASES CITED: Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69
McCann v Switzerland Insurance Australia Ltd (Allen’s case) [2000] HCA 65; (2000) 203 CLR 579
Minero Pty Ltd v Redero Pty Ltd (Supreme Court of New South Wales, Santow J, 29 July 1998 Unreported; BC 9803546)
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Taylor v Dexta Corporation Ltd & Ors [2006] NSWCA 310; (2006) 14 ANZ Insurance Cases 61-712
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165

PARTIES: Siu Sheng Lee – first plaintiff
Hong Mei Li – second plaintiff
Hong Liu – third plaintiff
Russell Keddie – first defendant
Scott Roulstone – second defendant
Tony Barakat – third defendant

FILE NUMBER(S): SC 20366/07

COUNSEL: J Hmelnitsky - plaintiffs
R Glasson - defendants

SOLICITORS: Horowitz & Bilinsky - plaintiffs
Verekers Lawyers - defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Nicholas J

7 August 2009

20366/07 Lee & Ors v Keddie & Ors

JUDGMENT

1 His Honour: By notice of motion filed 15 July 2009 the plaintiffs seek an order that some particulars of justification in the amended defence filed 20 October 2008 be struck out. The order is sought on the ground that the factual and legal issues raised in the particulars are issues which, in effect, were determined by the Court in earlier proceedings, so that the defendants are estopped from raising them in the present proceedings.

Background

2 The defendants practise in partnership as solicitors under the name “Keddies The Insurance Law Specialists”. From about 1999 to 23 October 2006 the first plaintiff was employed by the defendants to provide various services to them, including marketing and advertising services. From about 1999 to 23 October 2006 the second plaintiff was employed by the defendants to provide interpreting services for clients. From about May 2004 to 23 October 2006 the third defendant was employed by the defendants as a legal clerk.

3 On 7 December 2006 the defendants commenced proceedings no. 6202/06 in this Court against the plaintiffs and Margiottas Solicitors (the earlier proceedings). By statement of claim filed 23 February 2007 the defendants claimed against the plaintiffs a declaration that each had acted in breach of his or her fiduciary duties to the defendants, and consequential relief including damages.

4 The pleading included allegations that the plaintiffs, whilst employees and agents, had owed contractual and fiduciary duties to the defendants which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lee v Keddie

Details

AGLC: Lee v Keddie [2009] NSWSC 777
Case: [2009] NSWSC 777
Decision Date: 7 August 2009

CaseChat Overview and Summary

The plaintiffs, Lee and others, commenced defamation proceedings against the defendant, Keddie, in the Federal Court of Australia. The plaintiffs alleged that the defendant had defamed them in a series of social media posts and articles published online. The defendant had previously been ordered to discontinue defamation proceedings brought by the plaintiffs in the Federal Circuit Court. The Federal Circuit Court had found that the defendant's earlier proceedings were an abuse of process and were an improper attempt to litigate issues that were already decided in the Federal Court. The Federal Circuit Court had dismissed the earlier proceedings with costs. The defendant sought to raise similar issues in the Federal Court proceedings, arguing that the order for dismissal of the earlier proceedings did not preclude them from doing so. The court was required to determine whether the order for dismissal of the earlier proceedings precluded the defendant from raising similar issues in the Federal Court proceedings. The court considered the general principles of issue estoppel and the relevance of the forensic context in which the order for dismissal of the earlier proceedings was made. The court found that the order for dismissal of the earlier proceedings precluded the defendant from raising similar issues in the Federal Court proceedings. The court held that the order for dismissal of the earlier proceedings was a final and binding determination of the issues that the defendant sought to raise in the Federal Court proceedings. The court held that the defendant was estopped from raising those issues in the Federal Court proceedings, and that the order for dismissal of the earlier proceedings had the effect of precluding the defendant from doing so. The court dismissed the defendant's application to raise similar issues in the Federal Court proceedings. The court awarded costs to the plaintiffs.

Orders