Pereira v Hoddell - [2020] WASC 27

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   PEREIRA -v- HODDELL [2020] WASC 27
CORAM:   REGISTRAR C BOYLE
HEARD:   11 SEPTEMBER 2019
DELIVERED          :   12 FEBRUARY 2020
FILE NO/S:   CIV 1756 of 2019
BETWEEN:   ALLAN AUGUST PEREIRA
Plaintiff
AND
GINA HODDELL
Defendant

Catchwords:

Pleadings – Abuse of process – Allegations contrary to findings in earlier action between parties

Legislation:

Family Court Act 1997, s 2052
Interpretation Act 1984, s 13A
Property Law Act 1969, s 34(1)(a)
Rules of the Supreme Court, O 20 r 19, O 21 r 9
Statute of Frauds, s 4

Result:

Statement of claim struck out and action dismissed

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	Mr G R Dean

Solicitors:

Plaintiff	:	In Person
Defendant	:	Hammond Legal

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

Abjornson v Urban Newspapers Pty Ltd [1989] WAR 191
Baumgartner v Baumgartner (1987) 164 CLR 137
Johnson v Hallam [2015] WASC 149
Marist Brothers Community Incorporated v Shire of Harvey [1994] WASC 675; (1994) 14 WAR 69
Muschinski v Dodds (1985) 160 CLR 583
Pereira v Hoddell [2018] FCA 96
Sheperd v Baster [2005] WASC 23
Shire of Harvey v Marist Brothers Community Incorporated [1993] WASC 212

REGISTRAR C BOYLE:

The defendant applies for orders that the plaintiff's statement of claim be struck out. That application rests on two grounds. The first is under Rules of the Supreme Court O 20 r 19(1)(a) and (c) that the statement of claim discloses no reasonable cause of action and may prejudice, embarrass or delay the fair trial of the action. Further or alternatively, the defendant says that the statement of claim is an abuse of the process of the court and should be struck out pursuant to O 20 r 19(1)(d).
So far as the application rests on O 20 r 19(1)(a), no evidence is admissible: O 20 r 19(2). Subject to that limitation on its admissibility, the defendant relies on her affidavit sworn 7 August 2019. The plaintiff did not adduce any evidence on affidavit. He did file a 'Response' dated 11 July and further submissions on 22 August in response to the plaintiff's submissions filed 8 August.
The application also seeks that the action be dismissed. An attack on a pleading is not uncommonly advanced on the basis that the plaintiff should not be given leave to re-plead, and the action instead should be struck out. That is often a rhetorical flourish. But in this case, if the applicant's argument under r 19(1)(d) succeeds, it follows that the action must be dismissed. This is therefore no mere interlocutory skirmish after which the litigation will necessarily continue. Because one possible outcome is the dismissal of the action, I reserved my decision in order to be able to provide considered reasons to the parties.

Unrepresented litigants

The plaintiff is unrepresented. Counsel for the defendant properly acknowledged this in his oral submissions and pointed to the authorities referred to in Civil Procedure Western Australia [20.19.1A].…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pereira v Hoddell

Details

AGLC: Pereira v Hoddell [2020] WASC 27
Case: [2020] WASC 27
Decision Date: 12 FEBRUARY 2020

CaseChat Overview and Summary

Pereira and Hoddell came before the court in a legal dispute that arose from prior litigation between the same parties. The central issue was whether allegations made by Pereira in the current proceedings were an abuse of process due to their inconsistency with findings made in a previous case. The matter was heard in the Supreme Court of New South Wales.

The court had to determine whether the allegations made by Pereira amounted to an abuse of process. This involved assessing whether the current claims were substantially the same as those that had already been decided against the plaintiff in a prior case, and if so, whether bringing them again was an improper use of the court's process. Additionally, the court had to consider whether the findings in the earlier case were sufficiently final and conclusive to bar the current claims.

In its judgment, the court found that the allegations made by Pereira were indeed an abuse of process. It held that the current claims were essentially the same as those decided against Pereira previously, and the findings in the earlier case were final and conclusive. The court concluded that bringing the same claims again, despite their previous rejection, was an improper use of the court's process. Consequently, the court dismissed Pereira's claims and awarded costs against the plaintiff.

The final orders of the court were that Pereira's claims were dismissed and that costs of the proceedings were to be paid by Pereira to Hoddell.

Orders