Pedley v Murie and Edward (A Firm)
[2002] WASC 297
PEDLEY -v- MURIE AND EDWARD (A FIRM) [2002] WASC 297
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 297 | |
| Case No: | CIV:1382/2002 | 17 SEPTEMBER 2002 | |
| Coram: | ACTING MASTER CHAPMAN | 12/12/02 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Certain paragraphs struck out | ||
| B | |||
| PDF Version |
| Parties: | JOANNE WENDA PEDLEY MURIE AND EDWARD (A FIRM) |
Catchwords: | Practice and procedure Strike-out application Anshun estoppel Distinct causes of action in two sets of proceedings Different defendants in two sets of proceedings General pleading issues |
Legislation: | Supreme Court Rules, O 20 r19(1)(a), (c) and (d) |
Case References: | Asher v Secretary of State [1984] Ch 208 Minero Pty Ltd v Redero Pty Ltd, unreported; SCt of NSW; 29 July 1998 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Asher v Secretary of State for the Environment [1974] Ch 208 Austrust Ltd v Astley (1996) 67 SASR 207 Bailey & Anor v McGlashan (1997) ANZCR 610 Barrow v Bankside [1996] 1 All ER 981 Baxter v Obacelo Pty Ltd [2001] HCA 66 Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1 Bruce v Odhams Press Ltd [1936] 1 KB 697 Bryant v Commonwealth Bank (1995) 57 FCR 287 Citicorp Australia Ltd v O'Brien (1996) 40 NSWLR 398 Clarye Boyce v Mouat (1993) 3 NZLR 641 Farrington v Rowe McBride & Partners (1985) 1 NZLR 83 Gallagher v Carman [1990] ATR 81-011 Goss v MFA Finance Pty Ltd [1000] WASC 200 Haira v Burbery Mortgage Finance & Savings Ltd [1995] 3 NZLR 396 Hanave v LFOT [1999] FCA 1569; (1999) 168 ALR 381 Hawkins v Clayton (1988) 164 CLR 539 Henderson v Henderson (1843) 3 Hare 100 Janesland Holdings v Simon & Ors (2000) ANZCR 111 Johnson v Gore Wood & Co [2001] 1 All ER 481 Maguire v Makaronis (1996) 188 CLR 449 Maronis Holdings v Nippon Credit [2001] NSWSC 448 McKechnie v Campbell (1996) 17 WAR 62 MCC Proceeds v Lehman Bros [1998] 4 All ER 675 Morris v Wentworth-Stanley [1999] QB 1004 Pegrum v Fatharly (1996) 14 WAR 92 Royal Bank of Scotland v Etridge (AP) [2001] UKHL 44 Rubenstein v Truth & Sportsman Ltd [1960] VR 473 Westpoint Corp v Coles Supermarket (1996) 71 FCR 584 Yat Tung Co v Dao Heng Bank [1975] AC 581 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MURIE AND EDWARD (A FIRM)
Defendant
Catchwords:
Practice and procedure - Strike-out application - Anshun estoppel - Distinct causes of action in two sets of proceedings - Different defendants in two sets of proceedings - General pleading issues
Legislation:
Supreme Court Rules, O 20 r19(1)(a), (c) and (d)
Result:
Certain paragraphs struck out
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr M D Howard
Defendant : Ms A M I Schoombee
Solicitors:
Plaintiff : Jonathan Eastoe
Defendant : Mullins Handcock
Case(s) referred to in judgment(s):
Asher v Secretary of State [1984] Ch 208
Minero Pty Ltd v Redero Pty Ltd, unreported; SCt of NSW; 29 July 1998
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Case(s) also cited:
Asher v Secretary of State for the Environment [1974] Ch 208
Austrust Ltd v Astley (1996) 67 SASR 207
Bailey & Anor v McGlashan (1997) ANZCR 610
Barrow v Bankside [1996] 1 All ER 981
Baxter v Obacelo Pty Ltd [2001] HCA 66
Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1
Bruce v Odhams Press Ltd [1936] 1 KB 697
Bryant v Commonwealth Bank (1995) 57 FCR 287
Citicorp Australia Ltd v O'Brien (1996) 40 NSWLR 398
Clarye Boyce v Mouat (1993) 3 NZLR 641
Farrington v Rowe McBride & Partners (1985) 1 NZLR 83
Gallagher v Carman [1990] ATR 81-011
Goss v MFA Finance Pty Ltd [1000] WASC 200
Haira v Burbery Mortgage Finance & Savings Ltd [1995] 3 NZLR 396
Hanave v LFOT [1999] FCA 1569; (1999) 168 ALR 381
(Page 3)
Hawkins v Clayton (1988) 164 CLR 539
Henderson v Henderson (1843) 3 Hare 100
Janesland Holdings v Simon & Ors (2000) ANZCR 111
Johnson v Gore Wood & Co [2001] 1 All ER 481
Maguire v Makaronis (1996) 188 CLR 449
Maronis Holdings v Nippon Credit [2001] NSWSC 448
McKechnie v Campbell (1996) 17 WAR 62
MCC Proceeds v Lehman Bros [1998] 4 All ER 675
Morris v Wentworth-Stanley [1999] QB 1004
Pegrum v Fatharly (1996) 14 WAR 92
Royal Bank of Scotland v Etridge (AP) [2001] UKHL 44
Rubenstein v Truth & Sportsman Ltd [1960] VR 473
Westpoint Corp v Coles Supermarket (1996) 71 FCR 584
Yat Tung Co v Dao Heng Bank [1975] AC 581
(Page 4)
1 ACTING MASTER CHAPMAN: The defendant by application filed on 19 June 2002 seeks an order that the statement of claim be struck out pursuant to O 20 r 19(1)(a), (c) and (d) of the Supreme Court Rules. The pleading considered at the special appointment was a minute (the Minute) of proposed further amended statement of claim dated 13 September 2002. The application relied on the Anshun principle and general pleading points.
2 I will deal first with the general pleading points and in particular each of the paragraphs objected to.
Paragraph 19
3 I agree that the plea in the amended statement of claim was deficient. Does the plea in par 19A and par 19B of the Minute rectify this? Counsel for the defendant argues that there are no material facts pleaded which would justify the pleas at pars 19B(b) and (c). I accept the submission by counsel for the plaintiff that there is sufficient pleaded to establish a retainer existed, but the plea at par 19A seeks to plead implied terms of that retainer. I agree with counsel for the defendant that the plea is deficient insofar as pars 19B(b) and (c) are concerned and would strike them out.
Paragraphs 20(b), (e), 21(a), 24(d) and 26(a)
4 I accept that the extent of the fiduciary duty depends on the solicitor's retainer. I consider these paragraphs should be struck out for the same reason expressed in relation to par 19B(b) and (c).
Paragraphs 23, 28 and 39
5 I agree with the submission of counsel for the defendant where she said: "At the moment we have paragraph 28 saying the representations were not true, floating in a vacuum with no allegations of relevance and causation of loss". I accept that submission and consider these paragraphs should be struck out.
Paragraphs 24(b), (c) and 39
6 I agree with the objections raised by the defendant. I do not accept that this is a matter which should be dealt with by way of a request for particulars. I would strike these paragraphs out.
(Page 5)
Paragraph 37
7 As pars 20(d) and (e), and 24(d) are struck out, I consider this paragraph should also fail. I also agree par 37(e) is vague.
Paragraphs 38(a), (c) and (f)
8 This would fall away in light of the previous rulings.
Anshunprinciple
9 The defendant argues that the whole of the statement of claim should be struck out on the basis that it is an abuse of process. The basis of this submission is that the plaintiff brought a previous action against Clifton Partners Finance Pty Ltd, Mr Clifton and the Uniting Church claiming the same damage now claimed against the defendant. The present defendant was not a party to that action.
10 It is submitted that it is apparent from the affidavit of the plaintiff sworn 21 April 1998 in CIV 1195 of 1998 that the plaintiff had formed the view that the defendant in this action had previously been engaged by Clifton Partners Finance Pty Ltd and thus the defendant in this action was not independent. These issues, it is said, were also at the forefront of the plaintiff's solicitor's mind in September 2001 when CIV 1195 of 1998 was settled.
11 In the deed of settlement, the claim is defined in wide terms. It is argued that the plaintiff, or at least her legal advisers, must have appreciated that the defendant in these proceedings would likely wish to make a claim for contribution against the defendants in the other proceedings. In September 2001, the plaintiff's action against Clifton Partners Finance Pty Ltd and Mr Clifton was by consent dismissed, with no order as to costs. No explanation has been given as to why the defendant was not joined in the original proceedings.
12 The defendant argues that certain clauses of the deed of settlement have been put in favour of the defendants in the previous action who would no doubt rely upon them if the defendant in this matter would now try to bring a contribution claim. Further, one of the defendants is now in liquidation which makes additional prejudice to the defendant.
13 Counsel for the defendant submits that it was unreasonable for the plaintiff not to have made the case against the defendant in the first
(Page 6)
- proceedings. It is further submitted it was unreasonable to enter into the deed of settlement without advising the defendant of the deed and allowing the defendant to make a claim for contribution prior to the deed of settlement being entered into.
14 In those circumstances, the defendant submits that it is unreasonable and an abuse of process for the plaintiff to proceed in this way, particularly as the case against the defendant in these proceedings turns upon the same facts as the case against the defendants in the other proceedings, albeit the causes of action may be different. In this regard, the defendant relies on Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
15 Counsel for the plaintiff argues that the defendant seeks to expand the Anshun principle. It is said that Anshun dealt with the same parties and the principle may extend to privies of those parties, but the defendant in this action is not in any way a privy of the first defendant in the previous action. That may be, but Santow J, in Minero Pty Ltd v Redero Pty Ltd, unreported; SCt of NSW; 29 July 1998 said, at page 8:
"Privity in the absence of common parties is a requirement of res judicata or issue estoppel, but not for Anshun estoppel: Asher v Secretary of State [1974] Ch 208 per Lawton J.
- And further at page 24:
"I have earlier set out the applicable principles for application of Anshun estoppel. The Court retains a residual discretion as to whether or not such an estoppel may apply. Even if I were wrong in my conclusion that there is the necessity privity between Dr Ajam and Redero, here privity of interest is not required; the doctrine can apply where parties to the causes of action are different. Thus Handley JA, writing extra-judicially in 'Anshun Today' (1997) 71 ALJ 934 at 941 cites Asher v Secretary of State (supra) per Lawton LJ as authority for the proposition that Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 applies in favour of a non-party who would have been joined if a point had been taken against a party. This is in circumstances where the point 'properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time': see Henderson v Henderson (supra) at 114 - 5 per Wigram VC."
(Page 7)
16 I am told that this is the only reported case in Australia which has dealt with a situation where the defendant in the second action was totally different from that of the first. I accept the observation of counsel for the plaintiff that what the defendant seeks to do is extend the Anshun principle. The reasons in Minero clearly rest upon the English authority of Asher v Secretary of State [1984] Ch 208. It remains to be seen whether or not that view will be adopted generally in Australia.
17 At par 20.19.6 of Civil Procedure in Western Australia, the principles to be applied in considering applications such as this are conveniently summarised. It is apparent that great care should be exercised in not stifling the development of the law, nor to improperly deprive the plaintiff of her opportunity for the trial by the appointed tribunal.
18 Whilst I have great respect for the views expressed in Minero, I am not persuaded that the law in this area is well settled. In those circumstances, I would be reluctant at this interlocutory stage to strike out the plaintiff's claim generally.
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