O'Keeffe v Toop

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST

S CI 2016 01502

LORRAINE O’KEEFFE	Plaintiff
v
PATRICIA FAYE TOOP, GARY ROBERT CLARK AND GARY DOUGLAS TAYLOR	Defendants

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August and 15 December 2017
DATE OF JUDGMENT:	2 August 2018
CASE MAY BE CITED AS:	O’Keeffe v Toop & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 421 First revision: 6 September 2018

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PRACTICE AND PROCEDURE – Summary judgment – Whether to grant summary judgment in respect of plaintiff’s allegations of negligence by defendant solicitors by reason of past proceedings concerning the retainer – Consideration of discretion – Summary judgment granted – Civil Procedure Act 2010 (Vic), ss 7, 8, 9, 63 and 64 – Supreme Court (General Civil Procedure) Rules 2015, r 23.01.

CONTRACT – Construction of a release – Whether the phrase ‘relating to this Magistrates’ Court Proceeding’ includes allegations made in the defence – Held yes – Whether release extends to allegation made in general terms in defence and particularised in current proceeding – Held that it does, in the alternative extends to allegations specifically made in earlier defence.

ANSHUN ESTOPPEL – Whether Anshun estoppel applies in respect of allegations not made specifically in defence to earlier proceeding – Held that it does.

ABUSE OF PROCESS – Whether it would be an abuse of process to re-litigate in this proceeding allegations that plaintiff was pressured by her lawyers into settlement that were the subject of previous contested proceedings against a different defendant – Held yes.

COSTS – Whether allegations that defendants breached obligations of costs disclosure may be made in this proceeding when costs have been taxed – Held yes, other than as to quantum of costs.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared on her own behalf
For the Defendant	Mr T Sedal	Lander & Rogers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Factual background........................................................................................................................... 2

Parties and retainer....................................................................................................................... 2
Challenge to settlement of the Damages Proceeding.............................................................. 4
Taxation of costs............................................................................................................................ 7
Magistrates’ Court proceeding................................................................................................... 8

This proceeding and application.................................................................................................... 9

Issues in the proceeding.............................................................................................................. 9
Issues in this application........................................................................................................... 15
Evidence and summary of submissions.................................................................................. 16

Legal principles................................................................................................................................ 18

Summary judgment for the defendants: no real prospect of success................................. 19
Stay or judgment for the defendants: abuse of process........................................................ 20
Strike out: abuse of process....................................................................................................... 20
Issue estoppel.............................................................................................................................. 22
Anshun estoppel.......................................................................................................................... 24
Abuse of process......................................................................................................................... 29
Fresh evidence............................................................................................................................. 31
Construction of the release........................................................................................................ 33
Costs obligations......................................................................................................................... 38

Discussion.......................................................................................................................................... 43

Robson Judgment........................................................................................................................ 44
Taxation of costs.......................................................................................................................... 53
Magistrates Court proceeding and release............................................................................. 59
Magistrates’ Court Proceeding: alternative basis.................................................................. 71
Summary of conclusions............................................................................................................ 75

Discretion........................................................................................................................................... 76

Conclusion and orders.................................................................................................................... 77

HER HONOUR:

Introduction

This proceeding commenced by writ and general indorsement filed by the plaintiff on 22 April 2016. The plaintiff filed her statement of claim on 5 October 2016. She alleges breach of retainer and negligence by the defendants in the conduct of a WorkCover damages claim for her in the period 2002 to 26 April 2010. The plaintiff is self‑represented.

It is plain from the date on which the writ was filed that it was filed almost six years after the termination of the retainer. There had, however, been earlier proceedings touching on the retainer in the period April 2010 to February 2013. The defendants seek as a result of those earlier proceedings that the whole of the current proceeding, or portions of it, be dismissed or stayed. The plaintiff opposes the application.

After exchange of pleadings, requests and answers to those requests for further and better particulars, and discovery, all of which took place by March 2017, the defendants signalled that they proposed to file their summons on 28 April 2017 and sought a date. Regrettably, there were then a number of delays in the hearing and now the determination of the summons. The summons was initially scheduled for hearing on 9 May 2017 but due to difficulties in Court scheduling was adjourned to 2 August 2017. At the conclusion of that day the plaintiff sought to introduce further documents and accordingly the hearing was adjourned to 23 August 2017 with directions for the supply of those documents. The plaintiff was late in the supply of the further documents on which she relied and they were extremely voluminous. Accordingly, the parties agreed to adjourn the second day of hearing. Ultimately, that second day of hearing was 15 December 2017. I apologise for the delay in the delivery of these reasons thereafter.

For the reasons that I now give, I will dismiss the proceeding.

Factual background

I draw the facts below from the pleadings and the evidence in documentary form in this application. There was no oral evidence and cross-examination. I indicate where the parties disagree as to a pleaded fact, or a fact deposed to in evidence.

Parties and retainer

The plaintiff was employed as a Family Daycare Coordinator by Werribee Council, and its successor Wyndham City Council from June 1992 to 2000 or 2001 (the date is not clear in the material before me). She alleges that she suffered psychiatric injuries as a result of bullying and harassment during that employment. She engaged the solicitors’ firm Clark Toop & Taylor (CTT) to act for her in relation to those injuries in November 2002. The plaintiff pleads in her statement of claim dated 4 October 2016 (SOC)[1] that the first defendant had the care and conduct of ‘the legal claim brought (on her behalf) relative to her WorkCover damages claim’, and that each of the defendants was an ‘employee’ and a ‘joint owner’ of CTT. The defendants in their Amended Defence dated 3 August 2017 (Amended Defence) admit that each was a partner of CTT at all material times, and that the first defendant, Ms Toop, had the care and conduct of the plaintiff’s common law damages claim in this Court, proceeding No 8017 of 2008. The plaintiff does not in this application dispute this more precise description of the respective roles of the defendants and I will proceed on the basis that it is correct.
[1]Statement of Claim dated 4 October 2016 (SOC).

Mr Ellis, solicitor for the defendants, deposes that the three defendants were the only partners of CTT, and that the partnership existed from 21 December 2004 to 26 August 2015.[2] On that basis, the defendants contend that they are the same as ‘Clark Toop & Taylor (A Firm)’ which was the plaintiff in subsequent Magistrates’ Court proceedings instituted against Ms O’Keeffe. Ms O’Keeffe disputes that they are the same.[3] She does not contend, however, that there were any other partners, and s 8 of the Partnership Act 1958 (Vic) provides that for the purposes of that Act persons who enter into partnership are called a firm. In my view, there is no doubt that the defendants and Clark Toop & Taylor were at all material times one and the same, and I so find.
[2]Affidavit of Simon David Ellis affirmed 2 August 2017 [4]-[5] (Mr Ellis’ Second Affidavit).
[3]Affidavit of Lorraine O’Keeffe sworn 26 July 2017 [18] (Ms O’Keeffe’s First Affidavit).

Mr Ellis also deposes that Slater & Gordon acquired the practice of CTT on 26 March 2013. It is not entirely clear in the evidence how the start date of the partnership sits with the admission in the Amended Defence that the plaintiff retained CTT in November 2002, nor how the acquisition of the practice of CTT in 2013 sits with the continuation of the partnership for a period, but neither are currently material.

The defendants admit that the plaintiff retained CTT to act on her behalf in respect of specific matters arising from her complaints against Wyndham City Council, being a claim for statutory entitlements, for impairment benefits, for serious injury, and for damages all under the Accident Compensation Act 1985 (Vic) (ACA). Those matters were: a Magistrates’ Court proceeding (from December 2002 to January 2003); the plaintiff’s impairment benefits claim under s98C and/or s 98E of the ACA; the plaintiff’s serious injury application under s 134AB of the ACA, including a County Court proceeding; and a proceeding for damages in this Court.[4]
[4]Defendants’ Amended Defence dated 3 August 2017 [4], [8] (Amended Defence).

Of particular relevance to this proceeding, in April 2008, the plaintiff was granted a serious injury certificate by Judge Misso following a contested hearing in the County Court. CTT issued a common law damages proceeding in respect of her claim in this Court in August 2008, proceeding No. 8017 of 2008 (Damages Proceeding). The trial of that proceeding commenced before Justice Robson and a jury on 14 April 2010. On 23 April 2010, the Damages Proceeding settled for the sum of $150,000 (Settlement Sum), on the basis that the whole of that sum was to be applied to the plaintiff’s legal costs. Justice Robson was informed of the basis of the settlement and dismissed the plaintiff’s claim by consent, subject to any claim made by her solicitors pursuant to s 134AB(30) of the ACA. Wyndham City Council subsequently paid the Settlement Sum into Court.

Challenge to settlement of the Damages Proceeding

The plaintiff was unhappy with the settlement of her proceeding, and terminated her retainer of CTT. There is some uncertainty in the material before me about the exact date on which she did so. In paragraph 11 of her SOC she alleges that she terminated the retainer ‘on or about 26 April 2010’.[5] The defendants admit that their retainer was terminated ‘on or about late April or May 2010’. In the application the plaintiff then brought in the Damages Proceeding, described below, it was said and there was evidence that the retainer was terminated on 28 April 2010.[6] The precise date is not currently material.
[5]SOC [11].
[6]O’Keeffe v Wyndham City Council [2010] VSC 394 [7], [162] (Robson Judgment).

On 29 April 2010 the plaintiff made an application in the Damages Proceeding that the consent order and the terms of settlement be set aside, and the proceeding continue before Robson J sitting as a judge without a jury. She contended that she had agreed to settle under pressure from her lawyers. CTT made a competing application under s 134AB(30) of the ACA. That section prevents a solicitor for a plaintiff worker from recovering costs from the worker, claiming a lien or recovering the costs from an award of damages to the worker unless the Court has made an award of those costs, or the costs are payable by the worker pursuant to that section. The defendants sought by their application an order that the Settlement Sum be paid out of Court to them.

Justice Robson heard the competing applications over three days on 30 April, 3 and 4 June 2010. Amongst other witnesses, the first defendant, Ms Toop; a solicitor then employed by CTT who had instructed in court in the Damages Proceeding, Mr Travis Fewster; and senior and junior counsel who had acted for the plaintiff in the proceeding, Mr Craig Harrison SC and Mr Matthew Walsh respectively, all gave evidence and were cross examined by the plaintiff, acting for herself. By reasons delivered 2 September 2010 (Robson Judgment)[7] Robson J dismissed the plaintiff’s application. He held that CTT was entitled to hold the Settlement Sum as security for their costs, fees and disbursements incurred in the Damages Proceeding, but made no determination as to the quantum of their costs.[8] There are conflicting indications in the evidence as to whether he did, or did not, order payment of the Settlement Sum to them.[9] On my reading of his reasons, he did not, and his orders are not in evidence. The plaintiff had filed evidence disputing the evidence from CTT as to compliance with their costs disclosure obligations. Robson J observed in relation to the concerns raised by the plaintiff about these matters that ‘(t)he matters she raises goes [sic] to questions that might be dealt with at taxation or in other proceedings that deal with the terms of her retainer with Clark Toop & Taylor’.[10]
[7]Ibid.
[8]Ibid [168].
[9]In the unreported reasons for judgment of the Court of Appeal, O’Keeffe v Wyndham City Council (Unreported, Court of Appeal, Warren CJ, 15 October 2010), S APCI 2010 0120, which are Exhibit LOK-1 to Ms O’Keeffe’s First Affidavit (Court of Appeal Reasons), Warren CJ states at [3] that his Honour ordered payment of the Settlement Sum to CTT. By contrast, at [15] where she sets out his orders, the order as there set out was that the Settlement Sum be paid into Court. In a later decision Wood AsJ states that a taxation was necessary for CTT to ‘retain’ the Settlement Sum, which Robson J had ordered be paid to them- unreported Reasons on Review 1 June 2012 S CI 2011 01729 (Unreported, Supreme Court of Victoria, Wood AsJ, 1 June 2012), S CI 2012 1729 (Reasons on Review) being part of Exhibit SEL-14 to the affidavit of Simon David Ellis affirmed 1 May 2017 [9] (Mr Ellis’ First Affidavit).
[10]Robson Judgment [167].

Robson J made detailed findings of fact in relation to the discussions between the plaintiff and her solicitors and counsel on Friday 23 April 2010 that culminated in the plaintiff signing an authority to her legal advisors to settle her claim for the Settlement Sum. In short, he found that the plaintiff did become teary on two occasions in the course of those discussions, before and after she signed the authority, but that she was not visibly crying when she gave the verbal instructions to settle the proceeding, the authority was written out and read to or by her, and she signed it.[11] Ms O’Keeffe was not cross examined on her affidavit, in which she deposed that she felt threatened and intimidated by the settlement process, but Robson J found that she did not communicate that to her lawyers, and they did not threaten or intimidate her.[12] He found that she would have appeared to them to be ‘an intelligent and independent woman quite capable of looking after her own affairs’ and that her lawyers had no reason to believe that she felt under pressure, at a disadvantage, threatened or intimidated.[13]
[11]Ibid [132]-[133].
[12]Ibid [134].
[13]Ibid [135]-[136].

Robson J held that, even if Ms O’Keeffe had established her assertions as to pressure from her lawyers that would not have been enough to set aside the compromise as far as the defendant employer was concerned. There was no suggestion that the defendant employer had procured the compromise by means of duress, or any other circumstance by which the compromise, which was a contract between her and her employer, could be set aside.[14] The plaintiff was also confronted with the difficulty that the consent order dismissing the proceeding had been authenticated before she made her application to set it aside.
[14]Ibid [150].

The plaintiff sought leave to appeal the judgment of Robson J. The Court of Appeal refused her application for leave to appeal on 15 October 2010. In the reasons for the refusal Warren CJ identified at the outset what she described as ‘a fundamental threshold issue that the applicant is unable to overcome’ being that ‘(i)f there was a foundation to the applicant’s complaint against her former solicitors and counsel, any cause of action would lie against them’.[15] Her Honour repeated this view in her conclusion that the application was misconceived and should be dismissed as follows:

Whilst I express no view as to the efficacy or validity of the applicant’s allegations with respect to her former solicitors and counsel, her cause of action, if any, lies against those parties and does not involve the respondent. Furthermore, in the course of argument today, the applicant has also made allegations that would impugn the ethical conduct of the lawyers who represented her at the trial. Similarly, this is not a matter for the Court but a matter to be taken up elsewhere.[16]
[15]Court of Appeal Reasons [4].
[16]Ibid [16].

Taxation of costs

CTT served a bill of costs on the plaintiff dated 10 November 2010, which the plaintiff sought to tax by a summons for taxation filed on 31 December 2010. According to the reasons later given by Wood AsJ, the plaintiff only disputed the disbursements in the bill and so it was not in her interests to proceed because all costs could not be reviewed.[17]
[17]Reasons on Review [10].

At the hearing of that summons on 16 February 2011, the defendants contended that the plaintiff alleged, amongst other things, that she had not received proper disclosure of CTT’s legal costs and that CTT had incurred some disbursements without instructions.[18] The plaintiff disputes this, at least in relation to allegations about costs disclosure.[19] Judicial Registrar Gourlay adjourned the plaintiff’s summons to a date to be fixed, suggesting that she obtain some legal advice.[20]
[18]File note of the hearing by Fiona Mullen for CTT being Exhibit SEL-9 to Mr Ellis’ First Affidavit.
[19]Reply to the Amended Defence (Amended Reply) being Exhibit LOK-A to the affidavit of Lorraine O’Keeffe sworn 14 August 2017 [22(b)] (Ms O’Keeffe’s Second Affidavit).
[20]Reasons on Review [10].

On 31 March 2011 CTT served a bill of their costs on the plaintiff in the sum of $459,239.64. The evidence does not disclose if this was the same or different to the bill on which the plaintiff issued her summons. On 12 April 2011 CTT filed its own summons for taxation of its costs, on the basis of that bill, which was ultimately heard on 20 February 2012. The plaintiff did not appear on that day. In her later application for review, she claimed that she had sought an adjournment for urgent family reasons and assumed that it would be granted. Judicial Registrar Gourlay taxed CTT’s costs and disbursements in the sum of $392,583.65 and ordered the plaintiff to pay CTT’s costs and disbursements of the taxation fixed in the sum of $7,500. Judicial Registrar Gourlay also dismissed the plaintiff’s summons on that day with no order as to costs.

The plaintiff sought review of the orders of Judicial Registrar Gourlay, by Notice of Review filed 5 March 2012. In the Notice the plaintiff contended, amongst other things, that the summons filed by CTT was an abuse of process. The Review was dismissed by Associate Justice Wood on 31 May 2012, who published his reasons the next day. In relation to the allegation that the CTT summons was an abuse of process, Wood AsJ held that the taxation was necessary for CTT to establish that their costs exceeded $150,000. CTT conceded at the hearing before him that they would not seek more. Wood AsJ held that it had been appropriate for Gourlay JR to refuse the adjournment requested by the plaintiff, because she had failed to comply with orders that she file objections. Wood AsJ noted that even if all the disbursements had been taxed off, in other words the plaintiff’s objection succeeded at its highest, in addition to the amount taxed off by Gourlay JR, then a balance of $223,811.56 would still have been owing, which exceeded the $150,000 cap.

The plaintiff sought to appeal the order of Wood AsJ, out of time, by application filed 13 September 2012. Her application was dismissed by Kyrou J (as he then was) on 15 October 2012.

Magistrates’ Court proceeding

CTT sought to recover their costs of the taxation before Judicial Registrar Gourlay in the Magistrates’ Court, by complaint issued 10 August 2012 (Magistrates’ Court Proceeding). The plaintiff filed a defence to that complaint which made a number of complaints about the conduct of the Damages Proceeding by CTT. On 11 February2013, the plaintiff and CTT entered into written Terms of Settlement (TOS) which compromised the costs of the taxation at $2000, to be paid in instalments. The TOS contain a release in these terms:

Subject to the respective rights under these Terms of Settlement the parties release each other from any further claims of any kind relating to this Magistrates Court Proceeding.

The defendants contend in this application that the whole of the plaintiff’s claims against the defendants in this proceeding are caught by this release.

This proceeding and application
Issues in the proceeding

In this proceeding, the plaintiff alleges that CTT and/or the first defendant breached their retainer and/or failed in their duty of care to her as her solicitors in their provision of what she defines as ‘Legal Services’ to her in the period November 2002 to 23 April 2010. The plaintiff defines these Legal Services inclusively, not exhaustively, in paragraph 8 of the SOC as follows:

During the period November 2002 to 23 April 2010 CTT provided various legal services to the Plaintiff relative to the Claim and the Damages Claim, including the prosecution of proceedings in the Magistrates Court, County Court and Supreme Court of Victoria (collectively “the Legal Services”).[21]

[21]SOC [8].

Earlier in the SOC the plaintiff defines “the Claim” as ‘a WorkCover claim and potential serious injury claim relative to injuries she suffered in the course of her employment with Wyndham City Council’.[22] She defines “the Damages Claim” as ‘a Workcover damages (serious injury) claim’.[23]
[22]Ibid [4].
[23]Ibid [7(b)(vii))].

The plaintiff’s allegation of breach of retainer and/or negligence is pleaded in paragraph 12 of her SOC.[24] A number of the particulars of breach and/or negligence the plaintiff pleads relate to the Damages Proceeding, but it follows from her definition of ‘the Legal Services’ that her allegations of negligence are not limited to the conduct of the Damages Proceeding. The particulars of breach of retainer and/or negligence consist of 30 allegations, some of which contain sub-allegations. The allegations are as follows:
[24]Ibid [12].

(a)During the period November 2002 to June 2009, and despite many requests from the Plaintiff, failed to provide any information to the Plaintiff regarding legal costs in breach of s 3.4.9 of the Act;
(b)Failed to provide the Plaintiff, and/or failure to provide contemporaneously with the commencement of acting for the Plaintiff, with a conditional costs agreement;
(c)Failed to comply with s 3.4.14, 3.4.27 and 3.4.28 of the Act;
(d)Failed to request or otherwise have the Plaintiff sign a conditional costs agreement;
(e)Failed to provide the Legal Services and pursue and prosecute the Claim and/or the Damages Claim promptly and without delay;
(f)Failed to comply with reasonable instructions given by the Plaintiff from time to time during the course of the Claim and/or the Damages claim including failing to comply with the Plaintiff’s instruction that the Damages Claim be a judge alone trial;
PARTICULARS
On 26 October 2008 the Plaintiff sent an e-mail to Glenn Worth and the First Defendant in which she stated, inter alia, that,
“My instructions are:
Judge: No jury, judge alone.”

(g)Failed to advise, or properly advise, the Plaintiff about the Claim such that any settlement discussions and/or offers of settlement which occurred well before the Hearing were ineffectual;
(h)Failed to advise, or properly advise, the Plaintiff about the Claim such that any settlement discussions and/or offers of settlement which occurred well before the Hearing were conducted by the Plaintiff on an uninformed and/or ill‑advised basis;
(i)Failed to take into consideration and act upon a recommendation and/or direction of counsel, made on or about 18 June 2008, to undertake a “very thorough investigation of the documentation concerned [sic] the claimed restructuring of the Council; further concerning the increase in performance expectations; further that the Plaintiff was not meeting such increased performance expectations.”
PARTICULARS
Memorandum of Advice of Andrew Ingram of Counsel dated 18 June 2008.

(j)Failed to gather relevant evidence including necessary witness statements in advance of;
(i)the determination of the statutory offer; and
(ii)the preparation for the Hearing

such that the Plaintiff’s case was incomplete and not properly prepared for the Hearing;
(k)Failed to take into consideration and act upon a recommendation and/or direction of counsel, made on or about 31 July 2008, whereby counsel opined that “the case does seem to be one in which there are reasonable grounds for anticipating that a strong challenge can be made to the bona fides of some of the Defendants witnesses in their dealings with the Plaintiff and if that challenge is successful then one would anticipate there would be reasonable prospects of succeeding in demonstrating negligence.”
PARTICULARS
Memorandum of Advice of Andrew Ingram of Counsel dated 31 July 2008.

(l)Despite being put on notice, in or around July 2008 and likely earlier, that a number of the possible witnesses of the Wyndham City Council were no longer in the employ of the Wyndham City Council, failed to attempt or make concerted attempts to locate and interview such witnesses either:
(i)prior to the issue of the Damages Claim; and/or
(ii)well prior to the commencement of the Hearing.
PARTICULARS
Memorandum of Advice of Andrew Ingram of Counsel dated 31 July 2008.

(m)Failed to assess or properly assess the evidence so as to enable the Plaintiff to better and/or properly formulate her statutory offer;
(n)Upon CTT and/or the First Defendant obtaining any of the further evidence contemplated by reference to sub‑paragraphs (i), (k) and (l) herein (“the Further Evidence”), failing to obtain a further advice from counsel before the Hearing or at any time about the strengths and weaknesses of the Plaintiff’s case having regard to the Further Evidence;
(o)Failed to assess or properly assess the evidence after the Plaintiff obtained a serious injury certificate and before the commencement of the Hearing, such that the Plaintiff was allowed to proceed with the Damages Claim on a false and/or misinformed belief about the strength of her claim;
(p)Received a statutory counter offer in the sum of $0 (“the Statutory Counter Offer”) and failed to:
(1)reassess the plaintiff’s case to determine reasons why the defendant made the Statutory Counter Offer in the amount that it did; and
(2)advise, or properly advise, the plaintiff in relation to the Statutory Counter Offer; and
(3)reconsider the anticipated quantum of the plaintiff’s Damages Claim

(q)Failed to advise, or properly advise, the Plaintiff about the Claim after the Plaintiff obtained a serious injury certificate and before the commencement of the Hearing, so as to enable the Plaintiff to understand, or better (and properly) understand, the risks and/or weaknesses of her claim and thereby provide properly informed and considered instructions as to the settlement of the Damages Claim before the commencement of the Hearing;
(r)Failed to, at any time prior to or during the Hearing, advise the Plaintiff about the meaning and possible impact the High Court case of Koehler v Cerebos [2005] HCA 15 (“the Koehler Case”) would have upon the strength of the Damages Claim;
(s)Failed to advise, or properly advise, the Plaintiff about the Claim after the Plaintiff obtained a serious injury certificate and before the commencement of the Hearing, so as to enable the Plaintiff to properly assess any settlement offer;
(t)Failed to explain and/or properly advise how CTT and/or the First Defendant assessed the plaintiff’s Damages Claim to be worth “around $600,000”, or in the range of $610,000 to $635,000 and later filed and served a court document setting out the Plaintiff’s claim for special damages (and independent of general damages) in the amount of $774,022, yet during the Hearing, pressured the Plaintiff into accepting and/or strongly recommended to the Plaintiff that she accept, a settlement of $150,000 inclusive of costs (which settlement meant the Plaintiff received no damages at all)
PARTICULARS
Memorandum of Advice of Andrew Ingram of Counsel dated 18 June 2008 and further Memorandum of Advice dated 31 July 2008. On or about 31 July 2009 CTT filed and served a document entitled “Plaintiff’s Particulars of Loss”.

(u)Failure to inform the Plaintiff of any settlement offer made prior to the commencement of the Hearing and particularly of a settlement offer made on or about 9 April 2010;
(v)Left the briefing of counsel for the Hearing too late (counsel was briefed on or about Monday 12 April 2010) such that counsel briefed were significantly underprepared for the Hearing and unable to properly prosecute the Plaintiff’s interests at the hearing.
PARTICULARS
In an order of the Supreme Court made 3 June 2009 the Plaintiff’s Damages Claim was listed matter for hearing on the 13 April 2010. CTT and/or the First Defendant had 10 and a half months to brief counsel and prepare for the hearing.

(w)Despite being instructed, and being aware that the Plaintiff suffered from Graves’ Disease during the last approximate 2 years of her employment by the Wyndham City Council, only making application on 14 April 2010 (being the first day of the Hearing) to amend the particulars of negligence in the statement of claim in the Damage Claim, to make various references to the Plaintiff’s Graves’ disease condition.
PARTICULARS
The awareness of CTT and/or the First Defendant occurred as a result of various conferences with the Plaintiff, instructions provided by the Plaintiff and by the review of medical reports obtained by CTT and/or the First Defendant during period of the provisions of the Legal Services.
On 14 April 2010, at the commencement of the Hearing, counsel appearing for the Plaintiff made application to file and serve further particulars of breach of duty, which application was successful.

(x)By reason of the late amendment referred to in sub‑paragraph 12(w), the Plaintiff’s case at the Trial was further compromised by the inadequate preparation for the Hearing by CTT and/or the First Defendant.
(y)First mentioned the Koehler Case to the Plaintiff during the course of the hearing before Justice Robson on 3 and 4 June 2010 as a reason for contending that the Plaintiff’s claim was weak and of low value and so as to justify and/or explain why pressure was brought to bear upon the Plaintiff to accept the low settlement offer;
(z)Instructed counsel for the Plaintiff in the Hearing to examine the Plaintiff about an internal memo dated 19 April 2001 together with a 4 page attachment dated 18 April 2001 (“the Memo”), which memo had not been in the Plaintiff’s discovered documents, and then tender the Memo, when it was known, or ought to have been known, to CTT and/or the First Defendant, the Memo would be harmful and/or prejudicial to the Plaintiff’s claim;
PARTICULARS
During the course of Mr Harrison SC’s examination in chief of the Plaintiff during the Hearing he examined the Plaintiff about a memo authored by Michael McGlade dated 19 April 2001 and tendered that memo through the Plaintiff.

(aa)Failure to instruct Mr Harrison SC, and if he elected to examine the Plaintiff about the Memo and/or tender it though [sic] her (which he did), to then examine the Plaintiff about her written response to the Memo and/or an investigation report prepared about the issues raised in the Memo;
(bb)In breach of section 3.4.13 of the Act 2004, failed to provide to the Plaintiff prior to the Hearing, or at any time during the Hearing and before the Retainer was terminated, a reasonable estimate of the legal costs payable;
(cc)In breach of section 3.4.9 and/or 3.4.10 of the Act failed to, at any time, disclose the fees of counsel engaged on the Plaintiff’s behalf during the period that CTT and/or the First Defendant acted for the Plaintiff;
(dd)claimed to be entitled to a costs uplift (presumably relative to an alleged conditional costs fee arrangement) when in fact there was no damages sum recovered by the Plaintiff and the only recovery was of legal costs and disbursements;

In response to a request for further and better particulars, the plaintiff filed Particulars of Loss and Damage. Those Particulars quantify her loss as a result of the claimed negligence as loss of opportunity in respect of the Damages Claim ($600,000) and recovery of the $150,000 Settlement Sum, which she alleges was improperly applied to legal costs that ‘by reason of the defendant’s negligence…ought never to have been incurred’. She also seeks recovery of certain expenses, damages for loss of opportunity to pursue a psoriasis claim, and exemplary damages.

The defendants admit (to the extent identified above) the retainer and duty, but by paragraph 12 of the Amended Defence they deny the pleaded breach and negligence. They answer some of the particulars of breach and/or negligence substantively. In addition to denial of the alleged negligence, the defendants plead the following additional defences in the Amended Defence:

1.   That causes of action in tort and contract that accrued before 22 April 2010 are statute barred, having been brought more than six years from the date on which they accrued;[25]
2.   That certain of the allegations were determined by Robson J in the Robson Judgment giving rise to ‘an estoppel or issue estoppel’ and/or the attempt to re-litigate those allegations is an abuse of process or vexatious;[26]
3.   That certain of the allegations were determined by the orders made on the parties respective summonses for taxation giving rise to an estoppel and /or the attempt to re-litigate those allegations is an abuse of process or vexatious;[27]
4.   That the proceeding is barred in its entirety, or in the alternative certain allegations are barred, by the release contained in the TOS of the Magistrates’ Court Proceeding.[28]
[25]Amended Defence [14].
[26]Ibid [15]-[20].
[27]Ibid [21]-[27].
[28]Ibid [28]-[35].

Issues in this application

The defendants do not rely on the limitation defence in this application.

The defendants sought leave to file the Amended Defence on the first day of hearing of their application, 2 August 2017, although counsel stated without objection from the plaintiff that the defendants had served her with the proposed Amended Defence well before. The defendants sought to rely on an Amended Outline of Submissions (Amended Outline) at the hearing, also dated 2 August 2017.[29] It was said for the defendants that the amendments to their earlier submissions were not substantive, and that the Amended Defence expressly pleads matters put in the Amended Outline. Examination of both showed, however, that the two are not entirely coincident, in two respects.
[29]Defendants, ‘Amended Outline of Submissions’, Submissions in O’Keeffe v Toop & Ors, S CI 2016 01502, 2 August 2017 (Amended Outline).

First, in paragraph 25 of the Amended Defence more allegations in relation to costs are said to have been already determined by the taxation, thereby giving rise to an estoppel, than are identified in paragraph 15 of the Amended Outline. Second, paragraphs 25-27 of the Amended Outline identify three distinct bases on which the plaintiff’s allegations about costs should not be allowed to proceed. The first basis, in paragraph 25, asserts that certain allegations (as noted, more than identified in the Amended Outline) have already been determined i.e. the basis relied upon is issue estoppel. The second basis, in paragraph 26 is described as an alternative or further basis, and is expressed as abuse of process. The third basis, in paragraph 27, is also described as an alternative or further basis, and relies on Anshun estoppel. By contrast, the Amended Outline only refers to abuse of process and Anshun estoppel in relation to the costs allegations.

Counsel for the defendants conceded that, to the extent paragraph 25 of the Amended Defence relies on issue estoppel, it is not reflected in the Amended Outline and accordingly he did not press issue estoppel in this application in relation to the costs allegations. In her Further Submissions in Opposition the plaintiff responds to the defendants’ contentions in relation to all the allegations about costs identified in the Amended Defence,[30] and so there is no prejudice to her in considering all the allegations, even though not all identified in the Amended Defence were identified in the Amended Outline. As noted, it appears that she was served with the Amended Defence well in advance of the hearing.
[30]Plaintiff, ‘Further Submissions in Opposition to Defendant Summons Dated 4 May 2017’, Submissions in O’Keeffe v Toop & Ors, S CI 2016 01502, 29 July 2017) [30] (Plaintiff’s Second Submissions).

Evidence and summary of submissions

The defendants’ rely on three affidavits of Mr Ellis, solicitor, the Amended Outline and a summary of key events handed up at the hearing. Their primary submission is that the whole of the proceeding is barred by virtue of what transpired in the Magistrates’ Court Proceeding. This submission seeks the same outcome (judgment for the defendants or stay of the proceeding) by two different routes.

The first route relies on the release contained in the TOS of the Magistrates’ Court Proceeding. Although the complaint in that proceeding sought only recovery of the costs of the taxation, the plaintiff filed a defence which made numerous complaints about the conduct of the Damages Proceeding by the defendants. Accordingly, the defendants now submit that the current proceeding is a ‘further claim’ ‘relating to’ the Magistrates’ Court proceeding, and so is barred by the release.

The second and alternative route to judgment for the defendants or stay is predicated on the release applying only to those matters expressly pleaded by the plaintiff in the Magistrates’ Court Proceeding. This alternative route turns on principles of estoppel and abuse of process, and has two limbs. The first limb relates to the allegations that the plaintiff made against the defendants in the Magistrates’ Court Proceeding that she repeats in this proceeding. The defendants submit that it is an abuse of process to seek to re-litigate those allegations. The second limb relates to the remaining allegations i.e. the allegations that the plaintiff makes in this proceeding about the defendants’ conduct that she did not make in the Magistrates’ Court Proceeding. In respect of those allegations, the defendants rely on an Anshun estoppel, submitting that the plaintiff could, and should, have also made those allegations in the Magistrates’ Court Proceeding, and so is prevented from now raising them in this proceeding.

If the defendants’ primary submission, seeking dismissal or stay of the whole proceeding, is not successful, they rely on what transpired in the taxation of costs and what was determined in the Robson Judgment to seek stay or strike out of certain allegations in the SOC. The allegations that the defendants contend should be struck out are those in relation to the costs of the Damages Proceeding and those that allege the plaintiff was pressured by the defendants into a settlement of the Damages Proceeding.

The plaintiff has filed considerable material. She relies on three affidavits sworn by herself, the second and third of which filed after the first day of hearing have voluminous exhibits; two documents entitled Submissions filed before the first day of hearing; a document entitled Arguments against Summary Dismissal handed up at the close of the first day of hearing; and a document entitled Closing Oral Statement, which she read out at the conclusion of oral argument. I have read all of this material. Much of what she includes in the two affidavits she filed after the first day of hearing is directed to proving her allegations of negligence or breach of retainer. This shows a misconception of the purpose of the hearing. The defendants do not seek a determination that the plaintiff has no real prospect of success on the merits of the case that she wishes to bring. They contend that she is estopped on the basis of legal principles from bringing it. Accordingly, I only set out below a summary of the plaintiff’s submissions in relation to that contention.

The plaintiff’s submission is that the release in the TOS of the Magistrates’ Court Proceeding is limited to the claim by CTT for $7,500, and so does not bar her claims for negligence or breach or retainer against the defendants (who she disputes are the same as CTT) in this proceeding. She advances this submission for a number of reasons, which I will consider in more detail later in these reasons. If I am against her in relation to at least the allegations she made in her defence in that proceeding, she contends no Anshun estoppel should apply to the remaining claims, again for a number of reasons I will consider shortly.

In relation to the allegations she now makes about non-compliance with costs disclosure she accepts that those allegations ‘do go to matters that might be relevant to costs, and concede that the issue of costs has been determined’. She asserts, however, that the allegations also go, amongst other matters, to the defendants’ negligence, and the failure of the defendants to comply with ‘mandatory legal obligations imposed upon them by the Legal Profession Act 2004’ and compliance obligations, and her understanding of the proceeding and so ability to settle.[31]
[31]Ibid [30].

The plaintiff seeks to re-open the findings made by Robson J in the Robson Judgment on the basis of what she describes as ‘fresh evidence’. This evidence includes two affidavits by persons present at court on 23 April 2010 who support the plaintiff’s version of events in relation to pressure to settle.[32]
[32]Ibid [24].

The plaintiff also relies on the discretion conferred on the Court by s 64 of the Civil Procedure Act 2010 (Vic) (CPA), not to grant summary judgment even if satisfied that her claim, or parts of it, have no real prospect of success. She relies on both paragraphs of that section.[33]
[33]Ibid [25]-[29] and Closing Oral Statement 15 December 2017.

Legal principles

There are a number of statutory provisions, rules and legal principles that underpin the defendants’ submissions. I will deal first with the legislative provisions and rules that confer power on the Court to give summary judgment or permanently stay a proceeding, or part of a proceeding, and then the substantive principles that the defendants invoke to justify the giving of judgment or grant of a stay.

Summary judgment for the defendants: no real prospect of success

Section 62 of the CPA provides that a defendant in a civil proceeding may apply to the Court for summary judgment on the ground that the plaintiff’s claim, or part of that claim, has no real prospect of success. Section 63 of the CPA confers power on the Court to give such judgment. Rules 22.16-22.22 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) set out the procedure to be followed.

The meaning of the ‘no real prospect of success’ test was considered by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (Lysaght).[34] The Court by majority held that the test is whether the claim has a ‘real’ as opposed to a ‘fanciful’ prospect of success and so is ‘to some degree a more liberal test’ than the former test, which only permitted summary judgment where the Court considered that the claim was ‘bound to fail’. The majority emphasised, however, that the power to terminate proceedings summarily, i.e. without a trial on oral evidence, should be exercised with caution, and only when it is clear that there is no real question to be tried. The majority further held that this caution should be exercised whether the application is made on the basis of an assessment of the evidence, or, as here, on a legal basis such as abuse of process or failure to disclose a cause of action.[35]
[34](2013) 42 VR 27; [2013] VSCA 158.
[35]Ibid [35] (Warren CJ and Nettle JA, as he then was).

The Court has a discretion pursuant to s 64 of the CPA to refuse summary judgment, even if a proceeding or claim within a proceeding has no real prospect of success, if it is not in the interests of justice to give summary judgment (s 64(a)) or because the dispute is of such a nature that only a full hearing on the merits is appropriate (s 64(b)).

Stay or judgment for the defendants: abuse of process

The Rules also contain a distinct power to stay a proceeding, or any claim in a proceeding, or give judgment for the defendant in respect of the proceeding or claim, where the proceeding or claim is an abuse of the process of the Court– r 23.01(1)(b).

Strike out: abuse of process

In the alternative to stay or summary judgment, the defendants seek strike out of the whole of the SOC or particular allegations of breach of retainer and/or negligence. The Court has power pursuant to r 23.02 to strike out the whole or part of a pleading, including where the pleading as a whole or in part is an abuse of the process of the Court– r 23.02(d).

The power to strike out under r 23.02 is usually exercised where it is the form of the pleading, not its merits, that is flawed, and ordinarily strike out is accompanied by leave to amend, to correct the flaws. Rule 23.04(2) provides that evidence is not permitted on an application for strike out under r 23.02. This is because the emphasis under r 23.02 is on the form of the pleading, not its prospects of success, and the pleading must stand or fall on its own terms. By contrast, r 23.04(1) provides that evidence is permitted on an application for stay or judgment under r 23.01, where the emphasis is on the merits of the proposed case.

It is clear from the defendants’ submissions, and their reliance on evidence to establish their contentions, that what they really seek is a determination that whole or part of the plaintiff’s case has no real prospect of success, albeit on the legal grounds they advance, rather than by consideration of the merits of the defendants’ conduct. The defendants may also have objections to the form of the plaintiff’s SOC, but they were not advanced in the application. It follows that I consider their reliance on r 23.02 to be misconceived.

I turn now to the principles on which the defendants rely to submit that the whole of the proceeding, or at least aspects of it, should not be permitted to continue. In broad terms, the defendants’ submission is that the matters that the plaintiff now wishes to agitate were all determined in earlier proceedings, or could and should have been. There are two limbs to this broad submission. The first draws on principles of finality in the judicial process, and Court control of abuse of judicial process. The principles on which the defendants rely corresponding to this limb are issue estoppel, Anshun estoppel, and abuse of process. Each of these doctrines has particular distinguishing features, with abuse of process being the broadest and most flexible in its application.

The second limb of the defendants’ argument is based on contract, not estoppel or abuse of process. They contend that the release in the TOS prevents the plaintiff from agitating the matters she raises in this proceeding as a matter of contract law, because she agreed as part of the compromise of the Magistrates’ Court Proceeding not to re-agitate any matter raised in that proceeding.

I now discuss these principles in more detail. Unfortunately, and for reasons that are not clear, the cases relied upon by the defendants in their submissions are not, and were not at the time, the most authoritative. This is of potential significance, given that the plaintiff is not legally represented, and so was less well equipped to identify the appropriate authorities. I do not consider, however, that she was prejudiced thereby, or that there was a need prior to the delivery of these reasons to give her the opportunity to address the authorities I will now discuss. This is for two reasons. First, the cases on which the defendants did rely, and so were drawn to the plaintiff’s attention, do not materially differ in their statements of principle from the leading authorities. Secondly, the plaintiff herself identified a number of the cases I will now discuss in her own submissions.

Issue estoppel

In Kuligowski v Metrobus the High Court adopted Lord Guest’s formulation of the elements of issue estoppel in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2),[36] which was:

(1)that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.[37]

[36](2004) 220 CLR 363 [22] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ); [1967] 1 AC 853 at 935.

[37]Ibid. This formulation was reaffirmed in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, 537 [90] (Tomlinson).

Issue estoppel concerns the determination of an issue, not the determination by a final judgment of a particular controversy, let alone a particular cause of action arising from that controversy. It follows that it can arise from the determination of earlier litigation between the same parties, concerning a different cause of action, but requiring determination of the same issue that also arises in the subsequent proceeding. In Tomlinson v Ramsey Food Processing Pty Ltd the majority (French CJ, Bell, Gageler and Keane JJ) described issue estoppel in these terms:

[Issue estoppel] operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”.[38]

[38]Tomlinson [22].

Issue estoppel requires identity of parties and issue. The Amended Defence pleads issue estoppel in relation to the Robson Judgment,[39] but in the hearing of this application counsel for the defendants conceded that it could not arise from the Robson Judgment because the parties to that judgment are the plaintiff and her former employer, not the plaintiff and the defendants.
[39]Amended Defence [19].

The summonses for taxation issued by the plaintiff and by CTT were both proceedings between the same parties as those in this proceeding. As noted earlier, I do not accept the plaintiff’s contention that CTT is different from its constituent partners, the defendants in this proceeding. However, as noted earlier in these reasons, the defendants did not press in this application an argument based on issue estoppel in relation to allegations about costs disclosure that were said to have been raised by the plaintiff in the taxation.

The only other prior proceeding where the parties were identical to those in the current proceeding was the Magistrates’ Court Proceeding. The Magistrates’ Court Proceeding terminated in consent orders. A consent judgment can give rise to an issue estoppel, but the fact that there is no judicial determination can make it difficult to determine what issues were necessarily decided to give rise to the consent judgment.[40] Where the underlying compromise is without admission of liability, liability is not determined by consent judgment entered on the basis of that compromise.[41] In this case, the consent orders made in the Magistrates’ Court Proceeding were apparently in these terms:[42]

1.   The arbitration listed for 13 February 2013 be vacated;
2.   The proceeding be struck out with a right of reinstatement;
3.   There be no order for costs.

[40]Isaacs v The Ocean Accident and Guarantee Corporation Ltd and anor (1958) S.R. (NSW) 69, 75 (Isaacs); Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 [15] (Deane, Toohey and Gaudron JJ).

[41]Isaacs.

[42]Minutes of Consent Order dated 11 February 2013 signed by the plaintiff being part of Exhibit LOK-C to Ms O’Keeffe’s Second Affidavit.

The consent order is not, on its face, a judgment for either party. Further, order 2 on its face does not finally dispose of the proceeding, which may be reinstated to give effect to the TOS.

It is not entirely clear from the Amended Defence whether or not the defendants assert issue estoppel in relation to matters asserted by the plaintiff in her defence in the Magistrates’ Court Proceeding. Paragraph 35 of the Amended Defence is the alternative to paragraphs 33 and 34, which assert an entire (contractual) bar by reason of the release. Paragraph 35(a) asserts a bar in respect of specific allegations, and paragraph 35(b) asserts that to re-litigate them would be an abuse of process. Paragraph 35(c) asserts an Anshun estoppel in respect of the remainder of the allegations made by the plaintiff in this proceeding. In the absence of specific reference to issue estoppel, I think the better view is that it is not asserted by paragraph 35. Certainly, the Defendants’ Summary handed up at the hearing on 2 August 2017 makes it plain that issue estoppel is not relied upon by the defendants in this application in respect of the consent orders made in the Magistrates’ Court Proceeding. Accordingly, it is not necessary to consider the legal principles that would apply any further.

Anshun estoppel

Unlike issue estoppel, Anshun estoppel does not arise from issues that were raised and determined in a previous proceeding between the same parties. It is, in a sense, the converse. It arises where a party does not raise a particular issue in a proceeding, but she could and should have done so. Where that party subsequently seeks to raise that issue in a subsequent proceeding, she may be prevented from doing so by the application of Anshun estoppel, so named because of the leading Australian High Court case in which it was considered, Port of Melbourne Authority v Anshun Pty Ltd.[43] The test identified in that case is whether the subject matter of the subsequent proceeding is ‘so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it’.[44]
[43](1981) 147 CLR 589.
[44]Ibid 602 (Gibbs CJ, Mason and Aickin JJ).

Anshun estoppel was considered by the Victorian Court of Appeal in 2015 in Angeleska v State of Victoria and ors (Angeleska)[45] and in 2016 in Timbercorp Finance Pty Ltd v Collins and Tomes (Timbercorp).[46] In that case, the Court of Appeal said of the Anshun test:

[T]he test for the application of Anshun estoppel involves an assessment of the conduct of the party sought to be estopped in a later proceeding in not advancing a claim or defence in the earlier proceeding and whether it should be said that it was unreasonable of the party not to have advanced that claim or defence. In Gibbs v Kinna, Ormiston JA drew attention to the significance of the double negative embodied in the Anshun test. The issue was not whether it would have been reasonable to make some claim or advance some defence in the earlier proceedings. Rather, ‘the issue is whether it was unreasonable to defer reliance upon the defence or cause of action’ in the earlier proceeding. In the same case, Kenny JA said:
to decide whether or not it was unreasonable for a plaintiff not to litigate closely related issues in the one proceeding requires consideration of all the relevant facts, including the character of the previous proceeding, the scope of any pleadings, the length and complexity of any trial, any real or reasonably perceived difficulties in raising the relevant claim earlier, and any other explanation for the failure to raise the claim previously.[47]

[45](2015) 49 VR 131 (Angeleska).

[46][2016] VSCA 128 (Timbercorp).

[47] Ibid [140].

Although counsel for the defendants did not take me to these cases, the principles there stated are well known, and were adequately summarised in an earlier decision on which the defendants did rely, being Humphris v Connecteast Nominee Company Pty Ltd.[48]
[48][2015] VSC 12.

There are two essential preconditions before an Anshun estoppel can arise.[49] The first is that the cause of action must be one that could have been raised in the earlier proceeding. Secondly, it must appear that the same or substantially the same facts will arise for consideration in the second, as in the first, proceeding.[50] If both those preconditions are satisfied, then the test becomes one of reasonableness.
[49]Gibbs v Kinna [1992] 2 VR 19, 26-27 [23] (Kenny JA, Ormiston and Phillips JJA agreeing) (Gibbs); cited with approval in Angeleska [194].
[50]Ibid.

The application of Anshun estoppel has serious consequences, because it operates to prevent a person obtaining a determination of claims which have not been previously determined. Given these serious consequences, the authorities establish that a finding that an Anshun estoppel applies should only be reached in the clearest of cases, after carefully considering all the circumstances.[51] As earlier noted, the test is not whether or not it was reasonable for the party concerned to have brought the claim or defence in the earlier proceedings, but whether it was unreasonable not to have done so.
[51]Angeleska [199].

The High Court noted in Anshun that there may be cases in which it is not unreasonable not to bring a claim or defence in earlier proceedings but to seek to bring it in later proceedings arising out of the same facts and circumstances. The case given as an example in Anshun, was Davis v Hedges,[52] where it was held that a plaintiff was not precluded from bringing a claim for improper performance of work notwithstanding that he had not raised the matter when defending an earlier claim for the price of the work. The court in that case had noted that an action for the price of goods delivered or work performed may be maintainable before the defendant is able to determine whether there is a claim for breach of warranty that may afford a defence.[53] Other cases where a claim of Anshun estoppel has not succeeded have turned on the fact that the party in question could not bring his or her current cause of action in the first proceeding simply or as of right, but would have had to undertake complex procedural steps to do so, or obtain leave of the court concerned.[54]
[52](1871) LR 6 QB 687, cited in Anshun (1981) 147 CLR 589, 600.
[53](1871) LR 6 QB 687, 690. See also Champerslife (2010) 75 NSWLR 245, 253 [42] (Giles JA).
[54]Cases of this type are discussed in Timbercorp [143]-[144].

A distinguishing feature of this case is that the plaintiff brought forward some aspects of her current claims in the earlier proceedings between the parties, the taxation of costs and the Magistrates’ Court Proceeding, but not all aspects of them. In other words, this case differs from many of the earlier cases where Anshun estoppel has been sought where the whole of the subsequent claim or defence was not brought forward in the previous litigation, although it could have been. It may be correspondingly more difficult for the plaintiff to contend that she could not have brought her current claim in the Magistrates’ Court due to jurisdictional difficulties, or that it arises out of different facts and circumstances than those giving rise to a debt recovery claim in the Magistrates’ Court, when she in fact made some, but not all, of the same allegations in her defence to that claim.

One factor indicative of unreasonableness in failing to assert a claim in an earlier proceeding is a risk of inconsistent judgments.[55] In Anshun the majority of the High Court held (emphasis added) that:

It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment…
By ‘conflicting judgments’ we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.[56]

[55]Gibbs 27 [25], cited with approval in Angeleska [207].

[56](1981) 147 CLR 589, 603-604 (Gibbs CJ, Mason and Aickin JJ).

In her defence to the Magistrates’ Court complaint, the plaintiff relied on breach of fiduciary duty. She now relies on different causes of action, being contract (breach of retainer) and negligence, albeit arising from the same facts. As the quote above establishes, however, this does not necessarily mean that Anshun estoppel cannot arise, if the determination of her current causes of action would contradict the determination of causes of action in the Magistrates’ Court Proceeding.

The concern that a party not be permitted to litigate a claim that may give rise to a judgment that conflicts with an earlier judgment might suggest that the doctrine cannot apply where the earlier proceeding was compromised, as was the Magistrates’ Court Proceeding in this instance. This is not correct. In Whelan Kartaway Pty Ltd v Donnelly and ors (Whelan)[57] Davies J noted that:

There are a number of cases in which it has been held that Anshun estoppel may apply where the earlier proceeding was settled without adjudication.[58] In Johnson v Gore Wood & Co (a firm)[59] Lord Bingham explained that:
An important purpose of the rule is to protect a defendant against the harassment necessarily involved in repeated actions concerning the same subject matter. A second action is not the less harassing because the defendant has been driven or thought it prudent to settle the first; often, indeed, that outcome would make a second action the more harassing.[60]

The underlying public interest is the same: that there should be finality in litigation and a party should not be vexed twice in the same matter.[61] A later action may amount to an abuse of process if the claim should have been raised in the earlier compromised proceedings, if it was to be raised.[62] But as Corboy J observed in Rojanasaroj v Rachan (No 2),[63] the possibility that a party can be prevented from pursuing a claim in an action because the claim ought to have been made in an earlier proceeding that was compromised adds to the complexity of findings that must be made in determining what was truly disposed of by the settlement.[64]

[57][2012] VSC 45 (Whelan).

[58]Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1; Rojanasaroj v Rachan (No 2) [2011] WASC 271 [39] (Corboy J); R&J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232 (Bryson AJ); Seidler v The University of New South Wales [2011] FCA 640 (Cowdroy J); Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty Ltd (2008) 21 VR 43 (Beach J); Running Pigmy Productions Pty Ltd v AMP General Insurance Co Ltd and Ors [2001] NSWSC 431 [36] (Palmer J).

[59][2002] 2 AC 1.

[60]Ibid 32-33.

[61]Ibid 31.

[62]Lord Bingham of Cornhill, cited with approval in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 194 [34] (French CJ).

[63][2011] WASC 271 [39].

[64]Whelan [24], citations included.

In that case, Davies J held that a subsequent civil claim proceeding in the Victorian Civil and Administrative Tribunal (VCAT) between the same parties to an earlier debt recovery proceeding in the Magistrates’ Court was estopped by Anshun estoppel, notwithstanding that the Magistrates’ Court proceeding had settled. She reached this conclusion because the two sets of proceedings concerned the same controversy and arose from the same factual sub-stratum, and notwithstanding that it was argued that the Magistrates’ Court did not have jurisdiction to hear the claims later brought in VCAT. She observed that:

The bringing of the civil claims separately and independently of the Magistrates’ Court action posed the risk of inconsistent orders, if the Magistrates’ Court action had not settled but had proceeded to judgment. The fact of settlement is not justification or warrant for Anshun estoppel not applying in all of the circumstances.[65]

[65]Whelan [32].

In determining whether the failure to advance in earlier proceedings a claim or defence now advanced in subsequent proceedings was unreasonable, it is relevant, although not determinative, that the party in question is not legally represented.[66]
[66]Sahin v National Australia Bank [2012] VSCA 317 [98] (Ferguson AJA, as she then was); Humphris v Connecteast Nominee Company Pty Ltd [2015] VSC 12.

The point in time at which reasonableness is to be judged is the time at which the party could have raised the allegations now sought to be ventilated in a subsequent proceeding. By comparison, when the Court is considering the exercise of its inherent jurisdiction to prevent an abuse of its own processes, that question is to be considered in a ‘forward-looking way in light of all relevant circumstances’, including matters subsequent to the earlier proceeding.[67]
[67]Angeleska [225].

Abuse of process

A superior court, including the Supreme Court, has inherent power to prevent its procedures being abused. The categories of abuse of process are not closed, and so there are not strict or formulaic rules as to when an abuse of process may arise. Abuse of process principles can be invoked to prevent the re-litigation of cases which have been the subject of previous proceedings, and so there is a degree of conceptual overlap with Anshun estoppel. However, re-litigation of claims may amount to an abuse of process notwithstanding that no issue or Anshun estoppel arises.[68] For example, it may be held to be an abuse of process for a party to seek to re-litigate issues previously determined in earlier proceedings, although those earlier proceedings concerned a different defendant.[69]
[68]Ibid [154]-[158].
[69]State Bank of New South Wales Ltd v Stenhouse Ltd and ors (1997) Aust Torts Reports 81-423, 64,086 (State Bank of New South Wales Ltd).

The majority of the High Court in Tomlinson v Ramsey Food Processing Pty Ltd pointed out that abuse of process is inherently broader and more flexible than estoppel:

Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process 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. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.[70]

[70]Tomlinson 518–519 [25] (citations omitted).

In Kermani v Westpac Banking Corporation (Kermani),[71] Robson AJA (with whom Neave and Harper JJA agreed) comprehensively summarised the principles relating to abuse of process. I set out below those of particular relevance to this proceeding:
[71](2012) 36 VR 130.

(1)The court possesses an inherent jurisdiction to stay its proceedings as an abuse of process if the proceedings are unjustifiably oppressive and vexatious or manifestly unfair or otherwise bring the administration of justice into disrepute among right-thinking people.
(2)The jurisdiction should only be exercised in exceptional cases or sparingly with the utmost caution.
(3)The jurisdiction to stay for abuse of process is not limited to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the court affording the affected party a fair hearing.
(4)The circumstances in which abuse of process may arise are extremely varied and the courts have refrained from limiting the circumstances to fixed categories.
(5)In considering whether to grant a stay as an abuse of process, the court should undertake a weighing process involving a subjective balancing of a variety factors and considerations.

…
(13)In considering whether the rule should apply, the court should consider whether there was no reasonable justification for the second proceeding based on legitimate considerations of convenience, cost or the like.
(14)The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice. Regard may be had to:
(a)the importance of the issue in and to the earlier proceeding, including whether it is an evidentiary or ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;
(c) the terms and finality of the finding as to the issue;
(d)the identity between the relevant issues in the two proceedings;
(e)any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding;
(f)the extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g)an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.[72]

[72]Ibid 153-155 [97] (citations omitted). Re-iterating Robson J in Re AWB Ltd (No 10) [2009] VSC 566 [264] and later followed by J Forrest J in Crespin v Francis [2016] VSC 277 [43]-[44].

The factors quoted above as (14)(a)-(g) are the same as those identified in State Bank of New South Wales Ltd v Stenhouse Ltd and ors and Putt v Perfect Builders Pty Ltd on which the defendants relied.[73]
[73]State Bank of New South Wales Limited; [2013] VSC 600 [13] (Kyrou J, as he then was).

Fresh evidence

The plaintiff asserts that she has fresh evidence to counter the defendants’ assertion that it would be an abuse of process for her to be permitted to re-litigate her allegation that she was pressured into settlement.

The Court of Appeal considered the principles that govern when fresh evidence can be admitted on an appeal in Giles v Jeffrey.[74] The requirements as there set out are as follows:

(a)By the exercise of reasonable diligence the evidence could not have been discovered in time to be used in the hearing of the prior proceeding.
(b)It is reasonably clear that if the evidence had been available at the hearing of the prior proceeding, and had been adduced, an opposite result would have been produced.

(c) The evidence proposed to be adduced is reasonably credible.

[74][2016] VSCA 314 [207]. Followed by the Court of Appeal in Bennett v Talacko [2017] VSCA 163 [59].

I was not referred to any authority as to whether a different test applies to determine if evidence is to be considered ‘fresh evidence’, for the purposes of evaluating if a further proceeding would be an abuse of process. Research conducted for me within the Court has identified authority on that issue in relation to subsequent interlocutory proceedings. In DA Christie Pty Ltd v Baker (Christie)[75] the Court of Appeal considered abuse of process in the context of an application for extension of time. The plaintiff, having been unsuccessful in a first extension of time application under s 23A of the Limitation of Actions Act 1958 (Vic), brought a second application for extension of time to a different judge. The Court of Appeal found that the second application was an abuse of process, because there was no explanation for why material put forward on the second application had not put forward on the first application. The Court applied the same principles for ‘fresh evidence’ as apply on appeals.
[75][1996] 2 VR 582.

Christie has been read down in subsequent cases. In Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd (Tenth Vandy)[76] Hargrave J (as he then was) noted that the Court in Christie had not purported to lay down a general rule applicable to all interlocutory applications. After a review of subsequent authority, he preferred the more general principle that ‘the overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case.’[77] On that basis he held that the Court was not bound to dismiss a second reinstatement application as an abuse of process if there was no ‘fresh evidence’ in the sense that phrase is used in appeals. He held, however, that the absence of ‘fresh evidence’ in this sense would be a relevant factor in the exercise of the Court’s discretion.[78]
[76][2006] VSC 170 (Hargrave J, as he then was).
[77]Ibid [46], quoting Pierson (2002) 55 NSWLR 315 [318]; Manning (2002) 50 NSWLR 139 [161].
[78]Ibid [47].

In Melbourne City Investments Pty Ltd v Leighton Holdings Ltd the Court of Appeal considered the application of Christie to a subsequent stay application, brought after new appellate authority.[79] The Court accepted that Christie was distinguishable. The Court did not express a view as to the correctness or otherwise of Christie, but did quote at length from the authorities preferred by Hargrave J in Tenth Vandy.
[79][2015] VSCA 235.

Christie, Tenth Vandy and the authorities considered in Tenth Vandy all relate to repeat interlocutory applications. As the correct characterisation of the application by the plaintiff before Robson J was not argued before me, I express no view as to whether it should, or should not, be properly regarded as an interlocutory application. The current proceeding is certainly not an interlocutory application, and the plaintiff does not seek to rely on the pressure allegations for the same purpose as in the application before Robson J i.e. to set aside the settlement. It may be doubted then whether the strict ‘fresh evidence’ rule as it applies on appeals would apply. Nevertheless, the requirements of that rule are relevant in my view as part of the whole matrix of relevant factors that must be considered to determine if re-litigation of the pressure allegations in this proceeding would constitute an abuse of process. I will apply them in that way.

Construction of the release

The principal High Court authority on the construction of a release is Grant v John Grant (Grant).[80] Grant has been considered and discussed in numerous subsequent cases, including recently by the Victorian Court of Appeal in Doggett and Sullivan v Commonwealth Bank of Australia (Doggett).[81] Before turning to that more recent authority, it is useful to discuss Grant. The case concerned a release contained in a settlement deed between two factions of an extended family, and associated persons and entities, including companies in which the factions each held shares. The factions, rather than their respective members, were each collectively identified in the deed as a party. The deed recited that the two factions had been in dispute, without identifying in the recitals each dispute, and desired to resolve their differences by the provisions in the deed. The deed was quite specific as to certain matters of resolution, but contained a release in general terms. After the deed was signed, one party, a company whose shareholders comprised members of each faction, sued on a debt said to be owed by a member of one of the identified factions. The debtor relied on the release as a bar to the claim. The case came to the High Court on the reply to that defence, which was pleaded in three alternative ways.
[80](1954) 91 CLR 112 (Grant).
[81]47 VR 302; [2015] VSCA 351 (Doggett).

The first and second alternatives turned on pleas that the debt was not a dispute between the respective family factions at the time of the deed (first alternative) or was not a dispute between the specific parties to it at the time of the deed (second alternative). The Court held that the soundness of these replies was to be determined by construction of the deed, in particular by consideration of the recitals and the specific nature of some of the operational provisions. The Court held:

The question is whether upon a proper interpretation of the deed the general release clause should be restrained to matters in dispute within the meaning of these recitals. The question depends primarily on the application of the prima facie canon of construction qualifying the general words of a release by reference to particular matters which recitals show to be the occasion of the instrument. But it is also affected by the general tenor of the deed. It is unnecessary to say more about the canon of construction or to discuss further the contents of the deed. As to the first all that remains is to apply the principle that prima facie the release should be read as confined to the matters forming the subject of the disputes which the deed recites. As to the second, such indications as can be found in the provisions of the deed point rather in the same direction. The detailed character of the terms of settlement, the careful readjustment of rights, the specific reference to the debt of H. C. Grant and his wife and its discharge and the particularity of the allocation of things and contracts between the companies do not favour the view that a general release was intended going outside the actual area of dispute.[82]

Ms O’Keeffe makes the valid point, in her submission I have numbered 7 above, that the recitals (the portion commencing ‘Whereas’) make no explicit reference to her Notice of Defence, the Analysis of Judicial Judgment or any potential counterclaim by her. They recite only that she denies liability for the claim, and that the purpose of the settlement is ‘to avoid the costs and inconvenience of litigation’.

As she also correctly observes, there is no reference at all in the operative portion of the TOS to Ms O’Keeffe’s contentions in her Notice of Defence, or to any identified current or potential claim by her. The operative portions commence with the preamble that they settle ‘the Proceeding’. Clause 1 grants Ms O’Keeffe a substantial discount to the amount claimed by CTT which is expressed to be ‘in full and final settlement of the Plaintiff’s Claim in the Proceeding’. There is thus a distinction between settlement of ‘the Proceeding’ (as a whole - the preamble) and the discounted sum (which settles only the ‘Plaintiff’s Claim in the Proceeding’). The question then arises, as a result of this distinction, what else, if anything, is comprised in ‘the Proceeding’? This is the critical question posed by Release because it defines what it releases by reference to ‘this Magistrates Court Proceeding’.

In my view, on the proper construction of the TOS, ‘this Magistrates Court Proceeding’ did not mean only the plaintiff’s claim. The ‘Plaintiff’s claim in the Proceeding’ is identified in clause 1 as distinct from ‘the Proceeding’. If clause 1 was intended to refer to the whole proceeding it would have been a simple matter to express it in that way. It follows ‘this…Proceeding’, the discrimen for the effect of the Release, must include the defence and any other claim in the proceeding, not just the claim by CTT as plaintiff.

In further support of this construction, by clause 1, Ms O’Keeffe obtained a substantial concession. What was the consideration for this concession? On Ms O’Keeffe’s interpretation of the TOS, the consideration was the avoidance of the costs and inconvenience of litigation. That was no doubt valuable, but in my view must be read has having particular value given her denial of liability, which is also identified in the recitals. That requires consideration of the Notice of Defence, to which was attached the Analysis of Judicial Judgment.

The allegations made in the Notice of Defence and its attachment, Analysis of Judicial Judgment, are not identified in the TOS. In my view, for the proper construction of the TOS, including the Release, it is necessary to have regard to the documents themselves by way of extraneous evidence.

The Notice of Defence is not confined to the costs issue Ms O’Keeffe articulated in its paragraph 1, and identifies in submission 1 above. It includes a further three paragraphs. If Ms O’Keeffe contends by the submissions I have numbered 2 and 3 above that the Notice of Defence should be read as limited to its paragraph 1, then I reject that submission. If those submissions are intended to assert that the Notice of Defence is limited by her subjective intention, then they fail. The Notice of Defence is to be read objectively. It plainly included the matter of substance identified in paragraph 2 (the allegation that ‘the Plaintiff has breached their fiduciary duty owed to the Defendant’) and the procedural matters in paragraphs 3 and 4. Ms O’Keeffe did not assert in so many words that all matters referred to in the Analysis of Judicial Judgment were relied upon in her defence, but she did not need to. The statement in paragraph 2 that ‘details’ of the allegation there made were contained in that document was enough to incorporate the document into her defence.

Ms O’Keeffe asserts by the submission I have numbered 4 that CTT did not seek any particulars of her defence, or enquire as to what details of the Analysis of Judicial Judgment she relied upon. They were not obliged to do so, and nor did they need to do so. Particulars are sought when an allegation needs further detail. In this instance, the Analysis of Judicial Judgment was already very detailed. If Ms O’Keeffe wished to only rely on some aspects of it by way of defence, it was incumbent on her to make that plain, not on CTT to check. In the absence of limitation by her, the whole of the document would reasonably have been read as part of her defence.

Ms O’Keeffe is correct in her submissions I have numbered 5 and 6 above that she made no counterclaim. Neither the Notice of Defence nor the Analysis of Judicial Judgment are a counterclaim against CTT. However, this is not determinative. The ambit of the Release is determined by future claims that relate to ‘this Magistrates Court Proceeding’, not by reference to claims, in the sense of claims for positive relief, made within the Proceeding. As discussed, the Magistrates Court Proceeding includes the defence, as well as the complaint. The word ‘claim’ is used as the identifier for what is barred in future, but it is followed by the descriptor ‘of any kind’. For this reason, I do not consider that the word ‘claim’ as the description of what is barred, has the effect of limiting what is encompassed within the phrase ‘this Magistrates Court Proceeding’ to only claims for positive relief made within it.

Had CTT’s claim gone to hearing, then CTT could have fairly anticipated ventilation of the allegations made by Ms O’Keeffe in paragraph 2 of the Notice of Defence, and attached Analysis of Judicial Judgment, as well as those made in paragraph 1 of the Notice of Defence. On an objective analysis of the bargain that the parties struck in the TOS, the consideration for CTT giving up most of the quantum of its claim included Ms O’Keeffe giving up the right to ventilate these allegations, at least in that proceeding.

The consideration for each party to the TOS also included the Release. The Release is not expressed in as wide terms as is sometimes the case. It does not extend, for example, to all claims relating to any subject matter as between the parties. It identifies the claims which are barred by it and the succeeding clause as ‘any further claims of any kind’, but limited by the following words ‘relating to this Magistrates Court Proceeding’.

The narrowest descriptor is ‘this Magistrates Court Proceeding’. For the reasons given earlier, I consider this includes the allegations expressly made in the Notice of Defence, including the Analysis of Judicial Judgment. The ambit of this descriptor is then widened by the words ‘of any kind’ and ‘relating to’. Plainly ‘of any kind’ broadens the field considerably and, as discussed earlier, the authorities establish that ‘relating to’ is also a wide descriptor, not to be read down unless there is clear indication to do so.

The defendants’ primary contention is that the whole of this proceeding is barred by the Release because this proceeding and the Magistrates’ Court Proceeding ‘relate to the same subject matter, being the legal services that the defendants provided to the plaintiff in relation to (the Damages Proceeding)’; the parties in each proceeding are the same; and ‘the plaintiff has alleged in both this proceeding and in the Magistrates’ Court Proceeding that there were failures by the defendants in their carriage of (the Damages Proceeding)’.[114]
[114]Amended Outline [8].

This submission may go too far, because the claims made by Ms O’Keeffe in this proceeding and in the Analysis of Judicial Judgment may not be co-extensive. The title of the Analysis of Judicial Judgment suggests that is confined to analysis of the Robson Judgment, which in turn relates principally to the settlement of the Damages Proceeding. Ms O’Keeffe’s allegations of negligence in this proceeding, however, cover the whole of the defendants’ retainer, from 2002 to 2010. They are not confined to the defendants’ conduct of the Damages Proceeding.

For these reasons, I have considered each allegation made in the Analysis of Judicial Judgment to ascertain if it is repeated in the SOC. It is the substance of the allegation, not how it is characterised in law that is significant.

The allegations in the Analysis of Judicial Judgment are said to ‘detail’ i.e. particularise the defence identified in paragraph 2 of the Notice of Defence. That paragraphs alleges that ‘the Plaintiff has breached their fiduciary duty owed to the Defendant’. This is a different cause of action to the causes of action on which she now relies in this proceeding, which are causes of action in contract (breach of retainer) and/or negligence. All three of these causes of action arise from the relationship between Ms O’Keeffe and the defendants, as conditioned by the terms of the contract between them, the defendants’ retainer, but their emphasis is different. The focus in an action for breach of fiduciary duty is whether the fiduciary took advantage of the relationship for his or her own benefit. A solicitor fiduciary is prohibited, by the ‘conflict’ rule, from placing herself in a position where her personal interests conflict with those of the beneficiary client, and by the ‘profit’ rule from obtaining a profit from the fiduciary relationship, in each case other than permitted by the retainer. The focus in an action for breach of contract is on the terms of the retainer, including the implied term to exercise reasonable care. The focus in a tort action for negligence is on the standard of care required, and whether that was applied. There are also differences in the constituent elements of each of these causes of action.

I do not consider, however, that the fact that in the Analysis of Judicial Judgment Ms O’Keeffe identified her concerns about the defendants’ conduct as a breach of fiduciary duty means that the ‘further claims’ released by the Release are limited to claims of breach of fiduciary duty. I reach this conclusion on the basis of Doggett, discussed earlier. In Doggett, the Court of Appeal held that a release expressed at the time to relate to concerns about failure to properly assess the ability of a borrower to repay also barred a later articulation of the same substantive complaint. The later articulation expressed the complaint by reference to breach of an obligation to take reasonable care term implied into the contract by the Code of Banking Practice. I consider the effect of that judgment is that one looks to the substance of the complaint, not to the form of its articulation in a cause of action. I am fortified in that conclusion by the breadth of the words ‘of any kind’ and ‘relating to’.

I conclude that if a claim made in this proceeding is substantively the same as an allegation against the defendants expressed in the Analysis of Judicial Judgment, then it is a ‘further claim’ relating to the Magistrates’ Court Proceeding, and so barred. I set out my conclusions as to which allegations are barred for this reason in the following table.

Paragraph or page identified in Analysis

Substance of allegation

Which particular of [12] in SOC?

[4]

Costs and disbursements were inflated, apparently over whole retainer;

Not in SOC

CTT did little work;

(g)-(y); (specific complaints about advice not given to Ms O’Keeffe, and work not done)

CTT took too long to get to County Court hearing. (e) (delay)

[13] Settled under pressure (t) and (y)

[56] Delay in briefing counsel (v)

[61]
Late supply of further Particulars of Breach

Lawyers did not raise Koehler with me

(w)

(r) and (y)

[73] Counsel were standing over me-pressure to settle (t)

[94], [95] Disputes Toop evidence as to distress in settlement discussions (t) and (y)

[103]

Toop and Fewster knew I wanted judge alone

I not informed of Koehler

(f)

(r) and (y)

[114]

Allegations about memo dated 19.4.01

(z) and (aa)

[131]

Not advised of Koehler by my legal team

(r) and (y)

[133]

Lawyers demanded I settle

(t)

[136]

In 8 years CTT had achieved little in the resolution of my claim

(e)

[149]

CTT take longer time than many other law firms to bring cases to resolution

(e)

[154] Further Particulars of Breach (w) and (x)

Lien authority page 42(b)

Reference to delay of 8 years

(e)

[158]

Disputes Fewster evidence re costs disclosure 23 June 2009 and conference with Toop thereafter

(c),(d),(bb)-(dd)

[165]

Asserts never at any time a costs agreement

(a)-(d), (bb)-(dd)

[165] (p 23 of Analysis)

My case could have been completed in half the time with due care and diligence

(e) delay

And generally

As the table shows, a detailed examination of the Analysis of Judicial Judgment establishes that every allegation of negligence made by Ms O’Keeffe in the SOC was earlier made by her in substance in her Analysis of Judicial Judgment, part of her defence in the Magistrates’ Court Proceeding. The SOC contains in particulars (g)-(y) allegations about specific omissions. The specific omissions alleged in particulars (g)‑(q), (s) and (u) are not alleged in the Analysis of Judicial Judgment. The relevant allegation in the Analysis of Judicial Judgment is the general allegation that ‘CTT did little work’. However, I consider the detailed claims of work not done now made in those particulars to be fairly judged as particularisation of this general claim, rather than a new allegation. If this is incorrect, then they are claims that ‘relate to’ this general claim, and so are caught by the Release.

I have not included in the table other allegations made by Ms O’Keefe in the Analysis of Judicial Judgment, which include complaints about the conduct of other persons, and allegations against her lawyers, including the first defendant, of putting their own interests ahead of hers. I exclude these latter allegations on the basis that they are specific claims of breach of fiduciary duty, rather than negligence.

I am conscious that Ms O’Keeffe is now, and was in the Magistrates’ Court, self‑represented. Had the terms of the Release been capable of more than one construction, then I would have considered the more limited effect to be the proper construction, given that Ms O’Keeffe did not have legal advice. However, I do not consider that the reference to ‘this Magistrates Court Proceeding’ is capable of being limited to the claim by CTT only given the detailed nature of the defences that Ms O’Keeffe chose to advance. Once the Notice of Defence is included, so is the Analysis of Judicial Judgment, and every allegation in it. Allegations that are made in the SOC that repeat the substance of those allegations are plainly ‘further claims’ ‘relating to’ the defences advanced in the Magistrates’ Court Proceeding.

Ms O’Keeffe makes a number of submissions about her intentions at the time of the Magistrates’ Court Proceeding. She says that she would not have agreed to a form of terms that settled every claim that she might have against CTT and she never intended to prosecute a claim for negligence in the Magistrates’ Court because its quantum exceeds the jurisdictional limit of that Court. As CTT now contend that the Release bars all her current claims, Ms O’Keeffe contends that the Release is not enforceable because there was not the necessary ‘meeting of minds’.

This submission misunderstands the law on the construction and enforceability of contracts. As set out earlier in this judgment, contracts are construed objectively, not subjectively on the basis of what the parties intended to agree. Ms O’Keeffe’s inclusion of paragraph 2 in her Notice of Defence, with the allegations made in the attached document, indicated objectively that she intended to ventilate these complaints if the matter proceeded. The defendants could not be expected to know that she intended to prosecute these complaints separately in a court with a higher jurisdictional limit, let alone what quantum of loss she considered she had suffered. This is so notwithstanding that Ms O’Keeffe appears to quantify her loss by reference to the estimates of damages she was given. Quantification by this means suggests that Ms O’Keeffe assumes that but for the negligence she particularises she necessarily would have obtained a verdict in this amount. If this is her assumption, it ignores the possibility that other factors, such as developments in the trial and the effect of her evidence, may have negated that earlier advice.

Ms O’Keeffe seeks to introduce evidence in this application of negotiation about the form of the Release.[115] The defendants object to this evidence to the extent that it is adduced as an aid to construction of the release. On the basis of Codelfa, discussed earlier in this judgment, they contend that extraneous evidence is only admissible as an aid to construction of a contract where the meaning is not plain on the face of the contract. If the contract on its face is capable of more than one construction, then extraneous evidence is admissible, but not as to the subjective intention of the parties. I indicated in the hearing that I would rule on this objection in this judgment, and now do so.
[115]Amended Reply [28]-[32] and Exhibit LOK-C to Ms O’Keeffe’s Second Affidavit.

As discussed, I consider that evidence of the pleadings is necessary to determine the meaning of the reference to ‘this Magistrates Court Proceeding’ in the Release. However, it is apparent from Ms O’Keeffe’s case that she seeks to introduce evidence of the negotiations in relation to the form of the Release to support her evidence of her subjective intention. The evidence is not admissible on that basis, and so I exclude from my consideration on this application paragraphs [28]-[32] of LOK-A and LOK-C to Ms O’Keeffe’s affidavit sworn 14 August 2017 in so far as they are relied upon to establish that intention.

Magistrates’ Court Proceeding: alternative basis

Given my conclusion that every allegation of negligence or breach of retainer now made was made in substance by way of defence in the Magistrates’ Court Proceeding, and so is caught by the Release, it is not necessary to consider the alternative basis advanced by the defendants. I will do so, however, in case my conclusion that particulars (g)-(q), (s) and (u) are barred by the general allegation in the Analysis of Judicial Judgment at [4] that CTT did little work is incorrect.

The alternative basis begins with the concession by the plaintiff that ‘significant matters referred to in my Analysis of Judicial Judgment are repeated to varying degrees in my statement of claim in this proceeding’.[116] The defendants rely on this concession to assert that it would be an abuse of process to allow the plaintiff to re-agitate those matters in this proceeding. The defendants assert in respect of the remaining allegations now made, that the plaintiff could and should have made them all at that earlier time, and so pursuant to Anshun estoppel is now estopped from doing so.
[116]Plaintiff’s Second Submissions [16]

In support of this alternative basis, counsel for the defendants has identified certain allegations made in the Analysis of Judicial Judgment that are repeated in substance in the SOC.[117] The correspondence of allegations identified by the defendants and by me is broadly the same, except as to particulars (g)-(q), (s) and (u) being barred by the general allegation that CTT did little work. The defendants submit that it would be an abuse of process for the plaintiff to re-agitate these specific allegations. That is one way of analysing the matter, but in my view the better analysis is based on contract and the Release. I conclude that the specific allegations identified by me that are repeated in the SOC are barred by the Release.
[117]Amended Outline [10].

I accept the defendants’ next contention that to the extent any allegation now made was not specifically made in the Analysis of Judicial Judgment, it was unreasonable for the plaintiff not to do so at that time and so she is now barred from doing so by virtue of Anshun estoppel. I reach this conclusion for the following reasons.

The threshold requirements of an Anshun estoppel are that the cause of action now pursued could have been pursued in the earlier proceeding, and that the same or substantially the same facts arise for consideration now, as arose in the earlier matter. Both these threshold requirements are here satisfied. The Magistrates’ Court has general jurisdiction, unlike, for example, the Costs Court as discussed earlier. A claim for breach of retainer or negligence can be brought in the Magistrates’ Court, subject to a quantum limit. The quantum limit then, and now, is $100,000 but the parties can agree pursuant to s 100 (1)(c) of the Magistrates’ Court Act 1989 (Vic) to a higher quantum being litigated, or the matter can be transferred to a higher court if the quantum exceeds $100,000. The Analysis of Judicial Judgment is focused on the Damages Proceeding, and settlement of that Proceeding, but it includes allegations about other aspects of the retainer. It follows that the allegations now are based on the same facts as the allegations then.

It must have been not just possible for the plaintiff to have brought her current claim then, but unreasonable not to. In my view, this is also shown. Had the plaintiff limited her defence of the defendants’ claim in the Magistrates’ Court to paragraph 1 of her Notice of Defence, then it is unlikely that the Anshun estoppel argument would apply against her in relation to a claim brought later of negligence or breach of retainer. The two issues are logically quite distinct – on the one hand, enforcement of a Costs Court judgment, and on the other a claim of negligence or breach of retainer generally. However, having chosen to raise some of her allegations against the defendants in defence to the Costs Court recovery claim, in my view it was unreasonable for the plaintiff not to raise all such allegations at that time, unless by reason of some other circumstance this was not possible or impracticable. This is particularly so as on objective analysis she may have gained a significant compromise by the allegations she did advance.

The plaintiff has not directed me to any evidence to show that she could not have raised in her defence in the Magistrates’ Court the specific allegations she now makes in particulars (g)-(q), (s) and (u) to [12] of the SOC. The plaintiff did refer in another context (fresh evidence in respect of the Robson Judgment) to the fact that she did not receive her file from the defendants until August 2014. Accordingly, I have considered whether her receipt of the defendants’ file after the settlement of the Magistrates’ Court Proceeding should be considered a circumstance against the imposition of Anshun estoppel.

In her submissions in respect of the file as ‘fresh evidence’ the plaintiff contends that it did not contain what it should, not that she only became aware of certain documents once she received it.[118] Consistently with this, although the plaintiff identifies some particular documents as the basis for these allegations, including written advices from Mr Ingram and Court documents, she does not say that she did not have these documents at the time of the Magistrates’ Court Proceeding, or that she only obtained them from the defendants’ file. Indeed, the plaintiff refers to the same advices from Mr Ingram in particular (t), the allegation of pressure, which was the subject of her application before Robson J in 2010.
[118]Plaintiff’s First Submissions 2-3 [7].

Conceptually, there is also a difference between allegations of positive negligent acts, and acts by omission. All the particulars (g)-(q), (s) and (u) allege negligence by omission, not by positive acts. A solicitor’s file may show that steps were taken of which the client was previously unaware, which were done negligently. It follows that the client may not be able to bring a claim on that negligence until she learns of the steps, by receipt of the file. In the case of an omission, however, while receipt of the file may have confirmed Ms O’Keeffe’s concerns, because it does not include what it should include, there is nothing before me to show that she was not, or could not have been aware, of the omissions particularised in (g)-(q), (s) and (u) at least by the time she filed her Notice of Defence in the Magistrates’ Court Proceeding.

The plaintiff says that it would not have been reasonable to bring her current claim at that time because its value so far exceeds the jurisdictional limit of the Magistrates’ Court. She says it would not have been reasonable, in fact she says it would have been ludicrous, to give up such a valuable claim in return for a $5,500 concession on the Costs Court judgment. Converting those submissions to the double negative test the defendants must establish on Anshun estoppel, the plaintiff asserts that it was not unreasonable not to have brought her current claim in the Magistrates’ Court.

As discussed earlier, the plaintiff’s quantification of her loss may not take account of the difficulty of establishing that but for the negligence she asserts she would have received a verdict of this amount. It is not an objectively certain amount, and so does not militate against the unreasonableness of not raising all her concerns at the one time, in the Magistrates’ Court, when she chose to raise some of them.

Anshun estoppel can arise from an earlier proceeding that was compromised. Applying the reasoning in Whelan to this case, had the Magistrates’ Court Proceeding gone to hearing and judgment there would have been a risk of an inconsistent judgment on the allegations the plaintiff now makes in respect of the defendants’ conduct of their retainer. This is so irrespective of the precise legal characterisation of the allegations made earlier, and made now, given that both sets of allegations rise from the same facts.

It is relevant in assessing the applicability of an Anshun estoppel that the party in question did not have the benefit of legal advice at the earlier stage. I accept that the plaintiff did not understand that by raising some allegations of poor conduct by the defendants in the Magistrates’ Court Proceeding she may be prevented from raising them in a subsequent discrete claim, whether by Anshun estoppel or by the effect of the Release. The applicability of these principles does not depend on subjective intention, however, but on objective analysis. Given the amount of detail in the Analysis of Judicial Judgment and the absence of any evidence to show that all allegations could not have been raised at that time, I do not consider the fact that the plaintiff did not have legal advice should change the outcome. The plaintiff chose, for whatever reason, to allege poor conduct by the defendants in her defence in the Magistrates Court and viewed objectively the Release bars at least the specific allegations that are in substance now repeated, and Anshun estoppel bars the rest.

An alternative approach to the allegations now made that were not specifically put by the plaintiff in the Analysis of Judicial Judgment would be to consider if it would be an abuse of process to agitate them now. As identified in Angeleska, the time focus in Anshun estoppel is the time at which it is said the allegations should have been made. In abuse of process, the time focus is now. The defendants did not put submissions in relation to the abuse of process relating to the remaining allegations, and so I do not consider that approach further.

Summary of conclusions

For the detailed reasons I have given, I consider that summary judgment can be given pursuant to s 63 of the CPA in respect of all allegations of negligence or breach of retainer in the SOC on the ground that the plaintiff has no real prospect of success.

I arrive at this conclusion by two means. First, I consider that all the allegations are barred by the terms of the Release entered into by the plaintiff and the defendants in the Magistrates’ Court Proceeding. That conclusion assumes that it is a correct to describe the allegations in particulars (g)-(q), (s) and (u) as particularisation of the general allegation made by the plaintiff in her defence in that Proceeding that ‘CTT did little work’. If this is not correct, then I consider that the alternative route to the same conclusion applies. This route bars the specific allegations made in the SOC that are repeats of allegations made in the defence by reason of the Release. I consider the remaining allegations are barred by Anshun estoppel.

Additionally, or in the alternative if my conclusions on the Release are incorrect, I consider that summary judgment can be given pursuant to r 23.01 of the Rules on the allegations the plaintiff makes in particulars (t) and (y) of the SOC (relating to pressure to settle) because it would be an abuse of process to allow them to be re-agitated.

I accept the defendants’ submission that the allegations relating to costs are barred by Anshun estoppel, but only in respect of the quantum of costs. Had these allegations not been barred by the Release, I would have allowed them to be made as particulars of negligence and/or breach of retainer.

Discretion

Both r 23.01 and the CPA confer a discretion on the Court as to whether or not to give summary judgment, if the preconditions are satisfied. The discretion conferred by the CPA is explicitly stated in s 64 of the Act. The plaintiff relies on both limbs of that section to oppose the giving of summary judgment to the defendants.

The first limb requires consideration as to whether it is in the interests of justice to give summary judgment. The plaintiff’s closing address gives a powerful sense of the injustice that she perceives she has suffered at the hands of her former employers, her lawyers, and the legal system. I am genuinely sorry for that distress. The ‘justice’ to which s 64(a) refers includes as a very important consideration the airing and vindication by trial of grievances. It also includes other considerations, however, such as the policy reasons for finality in litigation and for holding parties to a contract to their bargain, and the interests of the other party. I do not consider that the injustice that the plaintiff perceives she has suffered militates against those other considerations so as to justify refusal of summary judgment.

The second limb of s 64 requires consideration of whether the dispute is of such a nature that only a full hearing on the merits is appropriate. The categories to which this limb might apply are not set, but it is often invoked where further pre-trial processes, such as discovery, or cross-examination at trial might elicit more evidence in support of a case that currently has no real prospect of success. I do not consider that such a consideration applies here. Much of the evidence would be documentary, and the parties have exchanged affidavits of documents.

Section 7 of the CPA defines the overarching purpose of the Act as ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’. By s 8 of the CPA, the Court is required to give effect to that overarching purpose in the exercise of any of its powers. Section 9 sets out particular matters that the Court is required to consider to further the overarching purpose in the exercise of any power. The factor on which the plaintiff principally relies for the exercise of my discretion to refuse summary judgment is her earnest wish to be air her grievances and have them vindicated. The requirement of a just determination is reflected in the overarching purpose and in s 9(1)(a). There are other considerations, however, reflected in the reference to efficiency, timeliness and cost-effectiveness in the overarching purpose and corresponding factors identified in s 9. These militate against allowing a case to proceed to trial if it has no real prospect of success. I understand that the plaintiff feels very aggrieved, and considers the defendants responsible at least in part for that grievance, but I do not think this is enough to justify allowing the matter to proceed.

Conclusion and orders

I will dismiss the proceeding. Ordinarily, and subject to any relevant matters of which I am currently unaware, an order that the plaintiff pay the defendants’ costs of the proceeding would also follow. I will hear the parties further if they are unable to agree on costs.

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Paragraph or page identified in Analysis	Substance of allegation	Which particular of [12] in SOC?
[4]	Costs and disbursements were inflated, apparently over whole retainer;	Not in SOC
CTT did little work;	(g)-(y); (specific complaints about advice not given to Ms O’Keeffe, and work not done)
CTT took too long to get to County Court hearing.	(e) (delay)
[13]	Settled under pressure	(t) and (y)
[56]	Delay in briefing counsel	(v)
[61]	Late supply of further Particulars of Breach Lawyers did not raise Koehler with me	(w) (r) and (y)
[73]	Counsel were standing over me-pressure to settle	(t)
[94], [95]	Disputes Toop evidence as to distress in settlement discussions	(t) and (y)
[103]	Toop and Fewster knew I wanted judge alone I not informed of Koehler	(f) (r) and (y)
[114]	Allegations about memo dated 19.4.01	(z) and (aa)
[131]	Not advised of Koehler by my legal team	(r) and (y)
[133]	Lawyers demanded I settle	(t)
[136]	In 8 years CTT had achieved little in the resolution of my claim	(e)
[149]	CTT take longer time than many other law firms to bring cases to resolution	(e)
[154]	Further Particulars of Breach	(w) and (x)
Lien authority page 42(b)	Reference to delay of 8 years	(e)
[158]	Disputes Fewster evidence re costs disclosure 23 June 2009 and conference with Toop thereafter	(c),(d),(bb)-(dd)
[165]	Asserts never at any time a costs agreement	(a)-(d), (bb)-(dd)
[165] (p 23 of Analysis)	My case could have been completed in half the time with due care and diligence	(e) delay And generally

[2018] VSC 421

2 August 2018