Moore-Mcquillan v Seidel No. DCCIV-01-1567

[2002] SADC 170

MOORE-McQUILLAN -v- SEIDEL
[2002] SADC 170

Judge Anderson
Civil

1. This is an appeal from a decision of a Master granting summary judgment to the Defendant (“the Respondent”).

2. The Appellant, as Plaintiff (“the Appellant”), commenced proceedings in this Court on 11 October 2001 by Application.  He sought the following orders:

   “1.The deed of release dated 26 June 1991 be nullified/set aside/withdrawn/altered.  The Deed was made by Andrew Hill and Co, Doctors House, cnr Doctors Rd and South Road Hackam (sic) SA 5163.

   2.The cost of this matter waivered

   3.All penalties arising from the Deed Of Release be set aside till the Court makes a decision on this matter

   4All stature right removed by this Deed of Release is re instated

   5.This matter be made especially returnable

   6.Any other order the Courts see fit to make”

3. Thereafter, a Statement of Claim seeking, in broad terms, the same relief was filed on 5 November 2001.  A Defence was filed on 22 January 2002 and a Reply, styled “Defence”, was filed by the Appellant on 28 February 2002.  After a failed listing conference on 21 May 2002, the Respondent filed an application on 28 May 2002 seeking that the Plaintiff’s claim be dismissed.  The Appellant filed an affidavit in reply.  The Master sought submissions from the parties and, on 12 July 2002, delivered his reasons granting the application and ordering that the Respondent have summary judgment.

4. It is from this decision that this appeal arises.  I heard the Appellant who appeared in person, and Mr Hill for the Respondent, on 28 August 2002.

5. At the conclusion of that hearing it was apparent that there was reserved for judgment by the Full Court of the Industrial Relations Court a matter between the same parties which may be relevant to this appeal.  I subsequently indicated to the Appellant by letter from my associate that I would not further consider this appeal until that decision was delivered.  That decision came to my attention when I returned from circuit in early November 2002.  On 8 November 2002, my associate received a message from the Appellant referring me to Josephson v Walker (1914) 18 CLR 691. Having looked at that decision, I am unable to ascertain in what way it is relevant to this appeal.

6. The history of the matter is set out in the affidavit of Mr Hill, filed in support of the application and again, to a lesser extent, in the reasons of Master Norman of 12 July 2002.

7. Briefly, on 31 May 1991, some time after the Appellant had been dismissed from his casual employment with the Respondent, he instituted proceedings in the Industrial Commission alleging that his dismissal was harsh and unjust.  Earlier, on 6 March 1991 he had instituted proceedings in the Industrial Court alleging underpayment of wages.

8. On 26 June 1991 the parties were at Court and, inter alia, discussions led to resolution of both matters.  A Deed was prepared that day and upon payment by bank cheque of the sum agreed, executed.  In addition, notices of discontinuance of these two actions were executed by the Appellant and subsequently filed.

9. The Deed of Release is in the usual form and, inter alia, protects the rights of the Appellant against WorkCover - apparently at his specific request - and indemnifies the Respondent against the cost of any further like proceedings instituted by the Appellant.

10. He did institute such proceedings seeking superannuation and annual leave in the Industrial Court.  That matter was heard before Mr Cunningham IM and judgment was entered for the Respondent.

11. After expiry of the time to appeal, an extension of time therefore was sought.  That was refused by Senior Judge Jennings.  There was then an appeal from that refusal to the Full Court which delivered its decision on 18 October 2002.

12. In his decision, Master Norman treated the Defendant’s application to dismiss the Plaintiff’s claim as an application for summary judgment.

13. There is a complaint from the Appellant, not that he was wrong to do so, but that he failed to explain to the Appellant that that was the effect of the application.  I am unable to see any substance in this complaint because I am satisfied that in so construing and considering the application, the Master applied the correct stringent test and no rights of the Appellant have been infringed and neither has he been disadvantaged in any way.

14. In considering the difference between the parties’ pleaded positions, the Master correctly determined that there was a factual issue as to the circumstances surrounding the execution of the Deed on 20 June 1991 and, were the matter to end there, the Respondent’s application could not succeed.

15. He then turned to consider whether, as a matter of law, it could be said that on any view of the law the claim could not succeed.  He acknowledged that if there was in the slightest, an arguable case, then the Respondent could not succeed with his application.

16. The Respondent relied on a plea of res judicata.  It was alleged in the affidavit of Mr Hill of 28 May 2002 that the issues raised by the Appellant in these proceedings had been considered by Mr Cunningham IM in the Industrial Relations Court on 31 March 1999 and, separately, by a Magistrate in the Christies Beach Magistrates Court on 10 October 2001 when the Respondent sought his costs of those 31 March 1999 proceedings pursuant to the indemnity clause in the Deed.

17. The Plaintiff obtained judgment in that Court and a subsequent appeal to this Court was dismissed by Noblet DCJ.  There has been a suggestion that a further appeal is on foot and so I do not wish to further rely upon that set of proceedings.

18. The Master accepted that the Industrial Magistrate had considered the Deed in question and its validity in the terms of the summons in this matter.  He found that the cause of action had merged into the judgment in those proceedings.  It was there the same cause of action as here.

19. In his submissions, the Appellant denied that this was so, but there seems no doubt at all from his answers to my questions, as they appear in the transcript, that in those proceedings he pleaded the validity of the Deed.

20. It is of considerable assistance to look at the judgment of the Full Court of the Industrial Court on this topic.

21. In paragraph 3 of its judgment, the Court said:

    “The learned Industrial Magistrate dismissed the appellant’s claim against the respondent ..... primarily on the basis of a release agreement that the appellant had executed on 26 June 1991 as part of a settlement of two claims .....”

22. In paragraph 4, the Court points out that the Appellant “knew he was releasing the respondent from all present and future claims ......”.

23. At paragraph 15, the Court said:

    “As the learned Industrial Magistrate found, the release agreement was nothing other than a bona fide agreement entered into between the appellant and Seidel which created a legally enforceable contract that Seidel was entitled to reply upon to defeat the claim made against him.”

24. The suggestion made by the Appellant in this appeal (Tp26) that the validity of the Deed was never argued before the Industrial Court is plainly wrong.  The factual scenario referred to by Mr Hill in both his affidavit and his submissions in this appeal are clearly supported by the decision of the Full Court.

25. Thus, the validity of the Deed of 6 June 1991 has previously been at issue in other proceedings and has merged into the judgment in them.  In that circumstance, I respectfully agree with the Master that a res judicata has arisen and that the Appellant is now unable to seek to raise that issue in this action.

26. In his Notice of Appeal, the Appellant has alleged some procedural defect before the Master (ground 2) but has not identified it.

27. Grounds 4, 5, 6 and 8 are not made out for the reasons I have given.

28. I have not placed any reliance upon the Christies Beach proceedings and their subsequent life, as I have said.

29. The Appellant’s complaint in ground 9 fails to reveal any prejudice to him relevant to the conduct of the Master as to the manner in which he heard and disposed of the Respondent’s application.

30. For these reasons I agree with the decision of Master Norman and dismiss the appeal.  The Respondent is to have his costs to be agreed or taxed.