Page v McKensey

[2002] NSWSC 570

CITATION:	Page v McKensey and ors [2002] NSWSC 570
FILE NUMBER(S):	SC 1595/96
HEARING DATE(S):	14 March, 16 April 2002
JUDGMENT DATE:	25 June 2002
PARTIES :	Geoffrey Francis Page (Plaintiff) Hugh Stanley McKensey (First Defendant) Victor John Lewis (Second Defendant) Philip Anthony Nelson (Third Defendant) Peter Charles Hicks (Fourth Defendant)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Plaintiff appeared in person D.P. Studdy (for First, Second and Fourth Defendants) Third Defendant appeared in person
SOLICITORS:	Bowen-Thomas & Barlow (First and Second Defendants) Hansens Solicitors (Fourth Defendant)
CATCHWORDS:	Practice - Pleading - Application by Plaintiff to file further amended statement of claim - Application by Defendants for dismissal of proceedings - Identical issues already determined in other proceedings (in which Plaintiff was not a party) - Anshun estoppel - Statutory claim raises identical issues - That claim is statute barred - Whether proposed pelading is embarrassing.
LEGISLATION CITED:	Fair Trading Act 1987
CASES CITED:	Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 Hunter v Chief Constable of the West Midlands Police (1982) AC 529 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 R v Balfour; ex parte Parkes Rural Distributors Pty Limited (1987) 7 FCR 26; 76 ALR 256 Sea Culture International Pty Limited v Scoles (1991) 32 FCR 275 Reichel v Magrath (1889) 14 App Cas 665
DECISION:	1. I refuse leave to the Plaintiff to file a further amended statement of claim; 2. I order that the amended statement of claim be struck out; 3. I order that the proceedings be dismissed.; 4. I order that the Plaintiff pay the costs of the First, Second and Fourth Defendants of the notice of motion filed by the Plaintiff on 31 December 2001 and of the proceedings, and that there be no order in respect to costs of the Third and Fifth Defendants.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 25 June 2002

1595/96 GEOFFREY FRANCIS PAGE -V- HUGH STANLEY McKENSEY and ORS

JUDGMENT

1 MASTER: By notice of motion filed on 28 September 2001 Hugh Stanley McKensey, Victor John Lewis and Peter Charles Hicks, being respectively the First, Second and Fourth Defendants, seek the following orders:

1. The proceedings be dismissed pursuant to Part 13 rule 5(1)

2. Alternatively, the amended statement of claim be struck out pursuant to Part 15 rule 26(1).

3. Alternatively, the proceedings be dismissed pursuant to Part 33 rule 6(2).

2 By notice of motion filed on 31 December 2001 Geoffrey Francis Page, the Plaintiff, seeks an order in the following terms,

That pursuant to Part 20 rule 1, the Plaintiff be given leave to file a further amended statement of claim.

3 Each of those notices of motion was specially fixed for hearing before me on 14 March 2002. On that date the hearing proceeded essentially as a hearing of the application by the Plaintiff for leave to file a further amended statement of claim. Although that application was made by way of notice of motion filed after the notice of motion of the First, Second and Fourth Defendants, nevertheless it was appropriate that I should deal first with the Plaintiff’s application, since it was recognised, at least implicitly, by the Plaintiff that the case pleaded in the statement of claim filed by him on 9 August 1996 (entitled “Amended Statement of Claim”) cannot stand.

4 In consequence, therefore, unless the Plaintiff succeeds in obtaining leave to file a further amended statement of claim, it is inevitable that the amended statement of claim be struck out pursuant to Part 15 rule 26(1). The logical consequence of a failure by the Plaintiff to obtain the leave to file a fresh pleading and of the striking out of the present pleading will be that the proceedings themselves will be dismissed pursuant to Part 13 rule 5(1) of the Supreme Court Rules.

5 The application of the Plaintiff to file a further pleading is opposed by the First, Second and Fourth Defendants. It is consented to by Phillip Anthony Nelson, the Third Defendant. At the hearing before me on 14 March 2002 there was no appearance by or on behalf of Christopher Michael Hewitt, the Fifth Defendant. However, a letter was placed before the Court indicating that Mr Hewitt neither consents to nor opposes the present application of the Plaintiff.

6 It should here be recorded that the notice of motion by which the Plaintiff makes that application has been filed by the Plaintiff in person, and that the Plaintiff has in person appeared before me and conducted the application. The First, Second and Fourth Defendants have been represented by solicitor and Counsel. The Third Defendant has appeared in person at the hearing before me.

7 It is appropriate that I should set forth, at least in summary, the procedural history of this matter and the circumstances which have given rise to the present applications.

8 The proceedings were instituted by statement of claim filed by the Plaintiff on 15 March 1996. That pleading was filed by the Plaintiff in person, who neither then nor at any other stage in the proceedings has been represented by solicitor or Counsel.

9 The Plaintiff is and at all material times has been a chartered accountant. The cause of action pleaded in the original statement of claim related to the interest acquired by the Plaintiff in an accountancy practice in Newcastle, of which practice the present Defendants were the principals.

10 The present Defendants (and other Defendants named in the proceedings as originally constituted) entered an appearance on 1 April 1996. However, no defence has been filed on behalf of any of the Defendants.

11 Since April 1996 the matter has been before the Court on a number of occasions, in respect to various interlocutory applications.

12 Pursuant to orders in that regard made by Master Macready on 10 May 1996 and 9 August 1996 the Plaintiff filed an amended statement of claim on 9 August 1996. That pleading named as Defendants only the present five Defendants. The relief sought therein related only to a claim that there be orders that the First and Second Defendants (Mr McKensey and Mr Lewis) account to the Plaintiff and some or more of the Defendants for certain amounts paid during the subsistence of various partnerships of which the Plaintiff and some or more of the Defendants were members in respect to amounts allegedly paid as service charges and/or consultancy fees; and for the profit made on the sale of certain furniture and equipment; and account to the Plaintiff for profits, pursuant to section 42 of the Partnership Act 1892.

13 On 23 August 1996 the Plaintiff made application, by way of notice of motion filed on 19 August 1996, for relief in respect to orders relating to costs, which orders had been made in separate proceedings, being proceedings 4206 of 1992.

14 That application came on for hearing before me on 23 August 1996. For the reasons set forth in the judgment delivered by me on that date, I dismissed that application.

15 In the course of my reasons for judgment I referred to proceedings 4206 of 1992 (in which Mr Page was a Plaintiff and the present Defendants were the Defendants) and to the hearings in those proceedings in May 1993 and December 1993 before Justice Windeyer, and to the decision of the Court of Appeal in February 1995, dismissing an appeal by Mr Page against the decision of Justice Windeyer of December 1993.

16 The First, Second and Fourth Defendants in the present proceedings made an application by way of notice of motion filed on 29 August 1996 for, inter alia, an order that the amended statement of claim be struck out. That application was fixed to be heard on 19 February 1997. Upon the application of the Plaintiff, which was not opposed by the Defendants, that hearing date was vacated.

17 On 10 September 1997 Mr Page as Plaintiff filed a statement of claim in proceedings 3947 of 1997. In those proceedings he sought to set aside the judgment and orders which had been made by Justice Windeyer in proceedings 4206 of 1992, upon the grounds that they had been obtained in consequence of false evidence and the deliberate suppression of evidence by the Defendants in those proceedings. However, in November 2000 the Plaintiff consented to the discontinuance of proceedings 3947 of 1997.

18 The effect of the relief granted by Justice Windeyer in 1993 was that there was an amount of $21,348 payable by Mr Page to the Defendants to those proceedings (those Defendants including all the Defendants to the present proceedings).

19 Subsequently, on 15 March 1996 Justice Windeyer made orders in respect to costs in proceedings 4206 of 1992. Those orders included an order that Mr Page pay the costs of the Defendants in those proceedings who are the Defendants in the present proceedings.

20 I have already referred to the fact that the decision of Justice Windeyer in proceedings 4206 of 1992 was the subject of appeal instituted by Mr Page, and that the appeal was dismissed and the orders of His Honour were confirmed by the Court of Appeal. Ultimately, on 24 April 1996, Justice Windeyer gave judgment in accordance with his order of 17 December 1993, being a judgment against Mr Page in the sum of $21,348 in favour of the Defendants to the present proceedings.

21 It is appropriate here to refer to proceedings 1585 of 1995, which were instituted by Mr McKensey, Mr Lewis and Mr Hicks as Plaintiffs. The Defendants to those proceedings were Mr Hewitt and Mr Nelson (who were also cross-claimants against the Plaintiffs and separately against Mr McKensey and Mr Lewis). Mr Page was not a party to those proceedings. Those proceedings were heard by Justice Einstein over a period of ten days in September and October 1997. His Honour published his reserved judgement on 15 October 1997 (that judgment is exhibit 2 in the hearing of the present application before me).

22 Dissatisfied with the decision of Justice Einstein, Mr McKensey, Mr Lewis and Mr Hicks appealed to the Court of Appeal, naming as respondents Mr Hewitt and Mr Nelson. The Court of Appeal allowed the appeal in part, and set aside certain orders and declarations made by Justice Einstein on 11 November 1997, and varied the costs order made by Justice Einstein. The Court of Appeal made no order as to the costs of the appeal. Mr Page was not a party to the appeal.

23 The further amended statement of claim which the Plaintiff now seeks to file in the present proceedings and which is the subject of his present application is dated 30 October 2001. It is verified by an affidavit of the Plaintiff of the same date.

24 By that proposed pleading the Plaintiff seeks to challenge the outcome of proceedings 4206 of 1992 (to which I shall refer as “the 1992 proceedings”).

25 By that pleading the Plaintiff asserts that certain representations made in 1993 by Mr McKensey (who is the First Defendant to the present proceedings and one of the First Defendants to the 1992 proceedings) were untrue and either were untrue to the knowledge of Mr McKensey and Mr Lewis (who is the Second Defendant to the present proceedings and one of the First Defendants to the 1992 proceedings) or were made by them recklessly or not caring whether they were true or false. Those representations are alleged to have been made in respect to the subject of the dispute in the 1992 proceedings (and, as I understand it, to have been made in the course of those proceedings).

26 By paragraph 12 of the proposed pleading the Plaintiff alleges that it was on or about 15 April 1995 that he first became aware of the true facts concerning certain of the matters which were the subject of representations made by the First and Second Defendants in the 1992 proceedings.

27 The Plaintiff in the proposed pleading also alleges that various other representations were made to him in or about October or November 1987 by the First and Second Defendants, the effect of which was that the Plaintiff was induced to enter into a partnership with those Defendants.

28 Paragraph 17 in the proposed pleading is as follows,

In the premises that Plaintiff is entitled to have the Orders of Windeyer J made on 17 December 1993 and entered on 5 December 1996 set aside.

29 The proposed pleading also makes allegations that the First and Second Defendants failed to disclose to the Plaintiff the terms of a written agreement between those Defendants and Deloitte Haskin & Sells dated 6 November 1987, with the consequence, so it is alleged, that the conduct of those Defendants was misleading and deceptive or likely to mislead and deceive within the meaning of section 42 of the Fair Trading Act 1987. (The firm Deloitte Haskins & Sells has, at times, in the course of the present proceedings and in the course of various other proceedings to which I have herein made reference been referred to as “Deloittes”.)

30 It is also alleged in the proposed pleading that during the period from 1987 to 1992 the First or Second Defendants owed a fiduciary duty to the Plaintiff, and that in breach of such fiduciary duty those Defendants “failed to advise the Plaintiff as to the true nature of the payments made to Deloitte Haskin & Sells referred to in paragraph 9, 14 and 24”. In consequence, the Plaintiff claims an entitlement that the First and Second Defendants account to the partnership for the benefits received by those Defendants as a result of such breach of fiduciary duty. It is also alleged that as a result of such breach the Plaintiff had suffered loss and damage, or in the alternative, the First or Second Defendants have obtained benefits.

31 There is also a claim in the proposed pleading relating to furniture and equipment, in respect whereof the Plaintiff alleges that the First and Second Defendants are liable to account to the partnership for profits made by those Defendants in respect to that furniture and equipment.

32 The prayers for relief in the proposed pleading include, as prayer (i), an order that the judgment of Justice Windeyer dated 17 December 1993 and entered on 5 December 1996 be set aside.

33 Prayer (ii) is as follows,

A declaration that the First and Second Defendants induced the Plaintiff to consent to the valuation of the Partnership’s assets as at 30 June 1992 set out in Exhibit D to the proceedings before Justice Windeyer by fraudulent misrepresentation or alternatively by misleading and deceptive conduct as defined in section 42 of the Fair Trading Act 1987.

34 The Plaintiff also seeks declaratory relief and orders in respect to an accounting of the partnership; damages pursuant to section 68 of the Fair Trading Act 1987 or otherwise; compensation (by which I understand to be meant equitable compensation); interest; further or other relief; and costs.

35 It will be appreciated that the effect of the proposed pleading is to challenge the entirety of the proceedings which were heard and determined by Justice Windeyer and in respect whereof an appeal by the Plaintiff to the Court of Appeal was dismissed.

36 The ground upon which the Plaintiff now seeks to overturn the decision in proceedings 4206 of 1992 is that the decision of Justice Windeyer was based upon what Mr Page describes as “agreed accounts”. It was his submission during the present hearing that at the time when he agreed to those accounts he was not aware of facts of which he is now aware. Mr Page asserts that it was only in April-May 2001 that he became aware of the fact (disclosed in Mr McKensey’s affidavit) that there never was what was referred to at the hearing (and was referred to in the judgment of Justice Einstein in proceedings 1585 of 1995 and by the Court of Appeal in the appeal therefrom) as a “friendly firm” agreement with Deloittes, and, further, that the payment by Deloittes was for goodwill, rather than as a service fee.

37 The First, Second and Third Defendants have opposed leave being granted to the Plaintiff to file the proposed further amended statement of claim. The basis of that opposition is upon the following grounds:

· No reasonable cause of action is disclosed in the proposed pleading, since the issues raised therein have already been decided either by Einstein J or by the Court of Appeal.

· The proceedings are frivolous, vexatious or an abuse of process, in that they are bound to fail, in consequence of the findings of Justice Einstein.

· The claim under the Fair Trading Act is statute barred.

· The cause of action which the Plaintiff seeks to assert is the subject of estoppel in accordance with the principle enunciated by the High Court of Australia in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. The proceedings before Justice Windeyer resulted, so it is submitted, in such an estoppel.

· The pleading is embarrassing in form.

38 During the course of the hearing before me on 14 March 2002 it was stated by Mr Page that it was only in April-May 2001 that he became aware of certain facts which were disclosed in Mr McKensey’s affidavit in the proceedings heard by Justice Einstein.

39 At the request of Mr Page the matter was restored to my list on 16 April 2002. Mr Page stated that he wished to correct a statement which he had made to the Court at the hearing on 14 March 2002 as to when he had learnt about certain facts disclosed in affidavits filed in proceedings 1585 of 1995 and referred to in the judgment of Justice Einstein. Mr Page said that it was the affidavits referred to in Justice Einstein’s judgment which were not known to Mr Page until early 2002.

40 On 16 April 2002 I stated that I would take into account what the Plaintiff had on that date informed me, and I confirmed that my judgment upon the application of the Plaintiff stood reserved.

41 I have already referred to the proceedings which were decided by Justice Einstein and which were the subject of appeal to the Court of Appeal from His Honour’s decision, being proceedings 1585 of 1995. As I have already recorded, Mr Page was not a party to those proceedings. Those proceedings related to one of the partnerships which came into existence after Mr Page had, in June 1992, retired from the partnership with the present Defendants. In consequence, therefore, the relief which was sought by the Plaintiffs in proceedings 1585 of 1995 (those Plaintiffs being the First, Second and Fourth Defendants in the present proceedings) did not in any way affect Mr Page. Nevertheless, the issues which fell for determination by His Honour were very largely matters which are presented for determination in the present proceedings, in particular, by the proposed further amended statement of claim.

42 His Honour in the course of his judgment (at pages 23-24) adverted to the fact that Mr Page was not a party to the proceedings before him, and to the consequences of that fact. His Honour said,

In consequence, Messrs McKensey and Lewis have breached fiduciary obligations owed to Mr Nelson and to Mr Hewitt. Those breaches continued over the years during which period Partnerships 2, 3, 4, and later 5, paid out funds to Deloittes. Mr Hewitt was, of course, not a member of Partnership 2. To the extent that these breaches of fiduciary obligation took place while partnerships included Messrs Page or Hicks as members, it might be thought that no relief involving a reopening accounts of Partnerships 2, 3 or 4 can be granted in these proceedings in the absence of Messrs Page and Hicks as parties to the proceedings.
In fact it cannot be said that Mr Page’s or Mr Hick’s rights against, or liabilities to, any party to the proceedings in respect of the subject matter of the proceedings will be directly affected by any order which may be made in relation to the breaches of fiduciary obligations.

43 His Honour held that there had been such breaches of fiduciary obligations owed by Mr McKensey and Mr Lewis to Mr Nelson and Mr Hewitt.

44 Had the matter remained in that state, then it is possible that the effect of the findings and decision of Justice Einstein would not of themselves have precluded Mr Page from pursuing the relief which he seeks in the proposed pleading in the present proceedings.

45 However, an appeal was instituted from the decision of Justice Einstein by Mr McKensey, Mr Lewis and Mr Hicks; and a cross-appeal was instituted by Mr Hewitt and Mr Nelson (who had been the successful parties in the hearing before Justice Einstein).

46 The nature and the conduct of the litigation attracted the disapprobation of Meagher JA in the Court of Appeal, who commenced his reasons for judgment as follows,

This is an extraordinary case. It concerns a small partnership dispute, indeed, a dispute so small that if the persons complaining of breach, the respondents Hewitt and Nelson, won on every point they raised they would be entitled to a verdict of no more than $10,000 between them. And yet it occupied experienced Counsel on both sides in argument which lasted over ten days, and generated about eight appeal books, eventually resulting in a ridiculus mus of a judgment from Einstein J. Other litigants who had serious litigation to be heard were no doubt kept waiting.

47 The principal judgment was that of Giles JA (with whom both Meagher JA and Fitzgerald JA agreed).

48 The effect of the decision of the Court of Appeal was to overturn the finding of Einstein J that there was a duty upon Mr McKensey, Mr Lewis and Mr Hicks to disclose the nature of payments which they (or the partnership of which they were members and which was the subject of proceedings 1585 of 1995) were members, and that their failure so to disclose constituted a breach of fiduciary duty. Such a finding Meagher JA said, “With all respect to His Honour, verges on the absurd”.

49 The Court of Appeal allowed the appeal in part, and set aside certain of the declarations and orders made by Justice Einstein (including relief in relation to the asserted fiduciary duty and breach thereof which had been found by His Honour).

50 I recognise that Mr Page was not a party to proceedings 1585 of 1985 and the appeal therefrom. Nevertheless, the issue which was the subject of the foregoing findings by Justice Einstein and which was the subject of the appeal to the Court of Appeal (which reversed His Honour’s decision in that regard) is the identical issue upon which Mr Page as the Plaintiff in the present proceedings asserts his entitlement to relief against the present Defendants.

51 Whether or not the present Plaintiff was a party to proceedings 1585 of 1995, what he is desirous of doing in the present proceedings by the proposed pleading is to assert a claim which for its success would require a finding contrary to that made by the Court of Appeal concerning the assertion that the present Defendants were under a fiduciary duty to their then partners and that the failure of the present Defendants to reveal the terms of the agreement which they had with Deloittes constituted a breach of that duty.

52 Whilst there is no issue estoppel which would bind the present Plaintiff in respect to that finding, it is settled law that an attempt to re-litigate an issue which has already been determined after contested proceedings (and, here, on appeal to the Court of Appeal) constitutes an abuse of the process of the Court. See Reichel v Magrath (1889) 14 App Cas 665 at 668-669 per Lord Halsbury LC; Hunter v Chief Constable of the West Midlands Police (1982) AC 529, where Lord Diplock, at 536, referred to

[T]he inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.

53 His Lordship went on to make it clear that the categories of circumstances in which the court has a duty (not merely a discretion) to exercise “this salutary power” were not fixed. See also R v Balfour; ex parte Parkes Rural Distributors Pty Limited (1987) 7 FCR 26; 76 ALR 256. In Sea Culture International Pty Limited v Scoles (1991) 32 FCR 275, a decision of the Federal Court of Australia, French J said at 279,

The possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed… An attempt to litigate in the court a dispute or issue which has been resolved in earlier litigation in this or another court or tribunal may also, according to the circumstances, constitute an abuse of process even if not attracting the doctrines of res judicata or issue estoppel.

Underlying the power that courts have assumed to stay or dismiss proceedings for abuse of process is a policy of preventing waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. There is, in my opinion, another element to be considered, and that is the necessity to maintain confidence in and respect for the authority of the courts.

54 See, also, Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404, and authorities cited therein.

55 As I have already observed, the essential element of the Plaintiff’s claim asserted in the proposed pleading has already been the subject of determinations by both Justice Einstein and the Court of Appeal, which (at least in the Court of Appeal) have been adverse to that now being mounted by the Plaintiff in the present proceedings. Such a claim must, in the light of the authorities to which I have just referred, be regarded as constituting an abuse of the process of the Court. In the words of Lord Diplock (Hunter v Chief Constable of the West Midlands Police, loc. cit), the Court has not merely a discretion but a duty to exercise “this salutary power” of dismissing such proceedings.

56 Even if, however, I were to proceed upon the basis, consonant with the wording of both Part 13 rule 5(1) and Part 15 rule 26(1) of the Supreme Court Rules, that I was exercising a discretionary power pursuant to those rules, I consider that proceedings 3947 of 1997 are relevant to the exercise of that discretion. In those proceedings the present Plaintiff sought, substantively, relief of the nature of that which he now seeks in the present proceedings by the proposed pleading, and subsequently he effected the discontinuance of those proceedings.

57 Even if it be accepted that, as the Plaintiff now states, he did not become aware until early 2002 of certain affidavits (and implicitly the contents of those affidavits) referred to in Justice Einstein’s judgment, and even if he had not been aware of those affidavits and the contents thereof at the times when he instituted and subsequently by consent discontinued the 1997 proceedings, I consider that those proceedings would not thereby have been saved from dismissal in accordance with the principles to which I have earlier referred relating to an attempt to re-litigate issues which have already been the subject of judicial determination.

58 Since, as I have already observed, the effect of the foregoing principles is that in respect to the present claim of the Plaintiff (for the success whereof findings contrary to those already made by Justice Einstein or the Court of Appeal would be required) not only is no reasonable cause of action disclosed in the proposed pleading, but the proceedings themselves are bound to fail.

59 The proposed pleading also asserts a cause of action grounded upon the Fair Trading Act (in respect to misleading and deceptive conduct of the nature defined in section 42 of that statute). In the light of the findings of Einstein J and the Court of Appeal upon the essential issues relating to the failure of Mr McKensey, Mr Lewis and Mr Hicks to disclose the terms of the agreement with Deloittes, it is impossible to see how a claim asserting that the same conduct by those Defendants was misleading and deceptive or likely to mislead and deceive within the meaning of the foregoing section could succeed.

60 But, in any event, where, as here, the Plaintiff complains of the conduct of those Defendants as attracting the provisions of section 42 of the Fair Trading Act, and seeks to recover damages pursuant to section 68 of the Act, he must institute an action for such damages within three years from the date upon which the cause of action accrued (section 68(2)). The present proceedings were instituted on 15 March 1996. The cause of action under the Fair Trading Act, which the Plaintiff seeks to assert in the proposed pleading, relates to conduct of the Defendants which occurred, at the latest, in 1992. Thus, even if the Plaintiff were otherwise justified in asserting a cause of action under the Fair Trading Act, that cause of action is now statute barred, and is thus doomed to failure.

61 The foregoing conclusions which I have expressed concerning the proposed pleading and the causes of action asserted by the Plaintiff are sufficient to dispose of the application of the Plaintiff, and, indeed, to dispose of the entire proceedings.

62 However, the Defendants have also relied upon the principle relating to estoppel enunciated by the High Court of Australia in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 (especially at 598 per Gibbs CJ, Mason and Aickin JJ). In this regard, the Defendants rely upon the fact that there has already been a decision by Justice Windeyer (upheld by the Court of Appeal) between the same parties relating to part of the subject matter of the case asserted by the Plaintiff in the proposed pleading. Consonant with the foregoing principle (referred to as Anshun estoppel) the Defendants submit that the failure of the Plaintiff to raise in the earlier proceedings the totality of his claims against the Defendants and the totality of the evidence in support of those claims has the consequence that he is now precluded from so doing in the present proceedings.

63 Nevertheless, it should be appreciated that it is part of the present complaint of the Plaintiff, that it was not until after the termination of those proceedings that the Plaintiff became aware of the precise nature of evidence which had been presented in the proceedings (to which he was not a party) heard by Justice Einstein and dealt with on appeal by the Court of appeal.

64 I have considerable doubt as to whether the foregoing principle relating to estoppel enunciated by the High Court of Australia in Port of Melbourne Authority v Anshun Pty Limited can have application in circumstances where, as here, a party is seeking to challenge an earlier decision and findings upon grounds which may compendiously be described as fraud or misrepresentation. If the party were, consonant with the principle of Anshun estoppel, bound by the earlier finding in litigation between the same parties, then it would never be open for a party to raise a challenge grounded upon alleged fraud or misrepresentation, especially where such fraud or misrepresentation is alleged to have been perpetrated in the earlier proceedings themselves.

65 It is also submitted on behalf of the First, Second and Fourth Defendants that the proposed pleading is embarrassing. In the light of my earlier conclusions herein it is not necessary for a determination of the present applications that I should express a final conclusion in this regard. My preliminary view is, however, that there would be no particular difficulty in the Defendants pleading to the proposed further amended statement of claim. Indeed, the Third Defendant by implication agrees that there would be no such difficulty and it is not suggested on behalf of the Fifth Defendant that he would have any such difficulty in pleading to it. In consequence, I would not merely on account of some asserted defects in the form of the proposed pleading be disposed to refuse leave for it to be filed.

66 I summarise as follows my foregoing conclusions.

67 Issues raised in the proposed pleading have already been decided by Justice Einstein or by the Court of Appeal. Those findings are adverse to and inconsistent with the case asserted by the Plaintiff in the proposed pleading. In consequence, the proposed pleading discloses no reasonable cause of action. Moreover, it is an abuse of the process of the Court. It contravenes the principles recognised over more than a century in respect to the re-litigation of issues which have been already the subject of litigation and of express findings and determinations.

68 The claim under the Fair Trading Act is the subject of the same issues to which I have just referred, and contravenes the foregoing principles. In any event, it would appear that any action for civil redress by way of damages pursuant to section 68 of that Act is statute barred.

69 Whilst the facts which the Plaintiff now alleges in the proposed pleading might be regarded as falling within the ambit of the principle known as Anshun estoppel, since the Plaintiff’s present factual allegations in the proposed pleading include all the factual allegations in the 1997 proceedings before Justice Windeyer, nevertheless the Plaintiff now asserts, and raises as a cause of action, that at the time of the 1997 proceedings and at the time when the Plaintiff agreed to the discontinuance of those proceedings, there were other factual matters of which he was not then aware, of which very factual matters he now asserts his unawareness to have been in consequence of conduct which he now categorises as misrepresentation on the part of the First, Second and Fourth Defendants.

70 I would not be prepared, upon the ground of Anshun estoppel alone, to refuse the Plaintiff’s present application or to dismiss the present proceedings.

71 I am not persuaded that the pleading is embarrassing, to the extent that the Defendants would not be able to plead thereto. I would not be prepared to refuse the present application merely upon the ground that the proposed pleading is embarrassing in form.

72 It follows from my foregoing conclusions that I will refuse the leave sought by the Plaintiff, and that I will order that the present pleading (being the amended statement of claim filed in 9 August 1996) be struck out, and that the proceedings be dismissed.

73 I make the following orders:

(1). I refuse leave to the Plaintiff to file a further amended statement of claim.

(2). I order that the amended statement of claim be struck out.

(3). I order that the proceedings be dismissed.

(4). I order that the Plaintiff pay the costs of the First, Second and Fourth Defendants of the notice of motion filed by the Plaintiff on 31 December 2001 and of the notice of motion filed by those Defendants on 28 September 2001 and of the proceedings, and that there be no order in respect to the costs of the Third and Fifth Defendants.

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Last Modified: 02/20/2003