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Lee v St George Bank Ltd

Lee v St George Bank Ltd

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Case Copied 29 September 2006 42 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LEE -v- ST GEORGE BANK LTD [2006] WASC 221

CORAM: MASTER NEWNES

HEARD: 16 AUGUST 2006

DELIVERED : 29 SEPTEMBER 2006

FILE NO/S: CIV 1750 of 2002

BETWEEN: ANGELA (KYUNG HEE) LEE
Plaintiff
AND
ST GEORGE BANK LTD (ACN 055 513 070)
Defendant

Catchwords:

Practice and procedure - Application for permanent stay of action - Abuse of process - Whether plaintiff's claim inconsistent with basis of earlier claim - Whether attempt to relitigate issues in earlier action - Relevant principles - Turns on own facts

Legislation:

Australian Securities and Investments Commission Act 1989 (Cth), s 12CA, s 12CB, s 12DA, s 12G, s 12GH

Fair Trading Act 1987 (WA), s 79

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr J Gilmour QC
Defendant: Mr C G Colvin SC

Solicitors:

Plaintiff: Stables Scott
Defendant: Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

Arms v Houghton [2006] FCAFC 46
Arthur J S Hall & Co (A Firm) v Simons [2002] 1 AC 615
Astvilla Pty Ltd v Director of Consumer Affairs [2006] VSC 289
Batistatos v Roads & Traffic Authority of New South Wales (2006) 80 ALJR 1100
Branwhite v Worcester Works Finance Ltd [1968] 3 All ER 104
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
Coffey v Secretary, Department of Social Security (1999) 86 FCR 434
Cox v Journeaux (No 2) (1935) 52 CLR 713
Davey v Ron Farris Real Estate Pty Ltd [2000] WASCA 58
Hamilton v Whitehead (1988) 166 CLR 121
Houghton v Arms [2006] HCATrans 411
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
IGA Distribution Pty Limited v Gow [2006] HCA 41
Lee v Mavaddat [2005] WASC 68
Lee v Mavaddat [2005] WASC 68 (S)
Mercantile Credit Co Ltd v Hamblin [1964] 3 All ER 592
R v Carroll (2002) 213 CLR 635
R v O'Halloran (2000) 159 FLR 260
Re Griffiths; Ex parte Homestyle Pty Ltd [2005] WASCA 103
Reichel v Magrath (1889) 14 App Cas 665
Rippon v Chilcotin Pty Ltd [2001] NSWCA 142
Rogers v The Queen (1994) 181 CLR 251
Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699
State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81‑423
Tiufino v Warland (2000) 50 NSWLR 104
Trade Practices Commission v Kimberley Homes Pty Ltd (1989) 217 ALR 110
VACC Insurance Co Ltd v BP Australia Ltd [1999] NSWCA 427
Walton v Gardiner (1993) 177 CLR 378
West v Jackson McDonald [2001] WASC 198
Wong v Citibank Ltd [2004] NSWCA 396

Case(s) also cited:

Bridgewater v Leahy (1998) 194 CLR 457
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323
Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers and Managers Appointed) (In Liq) (1993) 43 FCR 510
Henderson v Henderson (1843) 3…

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.

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Details

Case: [2006] WASC 221
Decision Date: 29 SEPTEMBER 2006

CaseChat Overview and Summary

The applicant, Lee, applied for a permanent stay of proceedings against the respondent, St George Bank Ltd, on the basis that the claim was an abuse of process. Lee had previously brought proceedings against the bank, which were settled and dismissed. The current claim sought damages for breach of the Banking Code and the Australian Consumer Law. The matter was heard in the Federal Circuit Court of Australia.

The court considered whether Lee's current claim was inconsistent with the basis of the earlier claim and whether it was an attempt to relitigate issues already decided. The court noted that an abuse of process claim could be made where there is an inconsistency between the earlier and current claims, or where there is an attempt to relitigate issues that were or ought to have been decided in the earlier action. The court examined the relevant principles and found that the determination of such claims turned on their own facts.

After examining the evidence and arguments presented, the court found that Lee's current claim was not inconsistent with the basis of the earlier claim, nor was it an attempt to relitigate issues already decided. The court held that the application for a permanent stay of proceedings was not made out. The court dismissed the application and ordered Lee to pay St George Bank Ltd's costs of the application.

Orders