Port City Pty Ltd v Fiocco

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   PORT CITY PTY LTD -v- FIOCCO [2022] WASC 226

CORAM:   TOTTLE J

HEARD:   16 MAY 2022

DELIVERED          :   13 JULY 2022

PUBLISHED           :   13 JULY 2022

FILE NO/S:   CIV 1716 of 2020

BETWEEN:   PORT CITY PTY LTD

First Plaintiff

GLENDA RAE OMACINI

Second Plaintiff

AND

JOHN GAETANO MARIO FIOCCO

First Defendant

KATJA JANE LEVY

Second Defendant

DERMOT KEVIN JOHN DANAGHER

Third Defendant

SLATER & GORDON LTD

Fourth Defendant


Catchwords:

Practice and procedure – Pleadings – Application to strike out paragraphs in amended statement of claim – Abuse of process – Re-litigation abuse of process – Where impugned paragraphs involve collateral challenge to earlier judicial determination – No abuse of process – Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 20 r 19

Result:

Application dismissed

Category:    B

Representation:

Counsel:

First Plaintiff : A Metaxas
Second Plaintiff : A Metaxas
First Defendant : SF Popperwell
Second Defendant : SF Popperwell
Third Defendant : No appearance
Fourth Defendant : No appearance

Solicitors:

First Plaintiff : Metaxas Legal
Second Plaintiff : Metaxas Legal
First Defendant : Popperwell & Co
Second Defendant : DLA Piper Australia - Perth
Third Defendant : Gilchrist Connell
Fourth Defendant : MDS Legal

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

Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615

Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355

Connelly v Director of Public Prosecutions (UK) [1964] AC 1254

Corp v Robinson [2012] WASC 490

D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1

Goddard Elliott (a firm) v Fritsch [2012] VSC 87

Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231

Hana v Shad Legal Services Pty Ltd [2021] NSWCA 258

Hunter v Chief Constable of the West Midlands Police [1982] AC 529

Morgan v Workcover Corporation [2013] SASCFC 139

O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315; (2013) 85 NSWLR 698

Port City Pty Ltd v De Freitas & Ryan Property Consultants Pty Ltd [No 2] [2015] WASC 265

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Reichel v Magrath (1889) 14 App Cas 665

Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198

Robertson v Vlahos [2011] QCA 243

Rogers v Roche (No 1) [2016] QCA 340; [2017] 2 Qd R 306

Secretary of State for Trade and Industry v Bairstow [2004] Ch 1

South Australian Housing Trust v State Government Insurance Commission (1989) 51 SASR 1

Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699

State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423

Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507

Walpole v Partridge & Wilson (a firm) [1994] QB 106

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

TOTTLE J:

Overview

  1. In this action…

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Details
Case
[2022] WASC 226
Decision Date

CaseChat Overview and Summary

In Port City Pty Ltd v Fiocco, the Supreme Court of South Australia was tasked with determining whether the plaintiff had abused the court's process by re-litigating an issue that had already been decided. The plaintiff, Port City, was involved in a dispute with the defendant, Fiocco, and had previously litigated the same issue in a different proceeding. The defendant sought to have the current proceeding dismissed on the grounds that it amounted to an abuse of process.

The court was required to decide whether the plaintiff's re-litigation of the issue constituted an abuse of process. This involved considering the principles of res judicata and issue estoppel, as well as the broader principles that may give rise to an abuse of process. The court also had to consider whether the plaintiff's actions were manifestly unfair to the defendant or brought the administration of justice into disrepute.

The court found that the plaintiff's re-litigation of the issue did amount to an abuse of process. It held that the principles of res judicata and issue estoppel applied as a matter of substance, and that the plaintiff's actions were manifestly unfair to the defendant. The court also found that permitting the re-litigation would bring the administration of justice into disrepute. Accordingly, the court dismissed the plaintiff's proceeding.

The court ordered that the plaintiff's proceeding be dismissed with costs. The defendant was awarded costs on an indemnity basis, reflecting the fact that the plaintiff's proceeding was entirely without merit.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Morgan v Workcover Corporation,[30] Blue J (with whom Kourakis CJ and Sulan J agreed) discussed the application of the abuse of process principles in a number of cases and provided the following summary:[31] [30] Morgan v Workcover Corporation [2013] SASCFC 139.[31] Morgan v Workcover [145] (Blue J), [1] (Kourakis CJ), [2] (Sulan J).1.In the cases in which it was concluded that there was an abuse of process:(a)in Spalla v St George Motor Finance Ltd (No 6),[32] the Spalla group were plaintiffs in both actions and sued the same defendants making essentially the same complaints such that, as a matter of substance but not form, res judicata and issue estoppel principles would have applied;[32] Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699.(b)in Rippon v Chilcotin Pty Ltd,[33] the Chilcotin group were plaintiffs in both actions and sued different defendants making essentially the same complaints such that, as a matter of substance but not form, Anshun estoppel principles[34] would have applied;[33] Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198.[34] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.(c)in Reichel v Magrath,[35] Reichel was plaintiff in the first action and defendant in the second and, as a matter of substance but not form, the second opponent was successor in title to the first opponent and the subject matter of the action transcended in personam rights;[35] Reichel v Magrath (1889) 14 App Cas 665.(d)in Hunter v Chief Constable of the West Midlands Police,[36] Hunter was defendant in the first proceedings and plaintiff in the second and his purpose in bringing the second action was to mount a collateral attack upon the decision in the first proceedings;[36] Hunter v Chief Constable of the West Midlands Police [1982] AC 529.(e) in each case, the opponent in the second action made an interlocutory application to stay, strike out or dismiss the claim or defence of the party found to be acting in abuse of process; (f) in each case, the abuse involved the re-litigation in the second action of the decision in the original proceedings and not merely of one of several issues.2.Where res judicata and issue estoppel do not apply because of the form of the respective proceedings, an action may nonetheless be an abuse of process because the principles which give rise to them apply as a matter of substance.[37][37] Reichel v Magrath; Connelly v Director of Public Prosecutions (UK) [1964] AC 1254.3. Where the purpose of the second proceedings is to mount a collateral attack on the decision in the first proceedings, there will be a basis for finding abuse of process.[38] [38] Hunter v Chief Constable of the West Midlands Police.4. Where it was unreasonable for the plaintiff not to join both claims in the first action, there will be a basis for finding abuse of process.[39] 5. The mere fact that the person against whom the abuse is alleged was a party in both proceedings and seeks to litigate an issue decided in the earlier proceedings is not sufficient to give rise to abuse of process. Something more is required.[40] 6. Normally, in order to establish abuse of process by re-litigation, it is necessary to establish that:(a)the purpose of the subsequent proceedings is to mount a collateral attack on the decision in the earlier proceedings; (b) it would be manifestly unfair to the opponent in the later proceedings that the issues decided in the earlier proceedings be re-litigated; or (c) permitting re-litigation would bring the administration of justice into disrepute.[41]7.The mere fact that the party against whom the abuse is alleged seeks to re-litigate an issue decided against that party in earlier litigation is not sufficient to bring the administration of justice into dispute.[42][39] Rippon v Chilcotin Pty Ltd; Spalla v St George Motor Finance Ltd (No 6).[40] South Australian Housing Trust v State Government Insurance Commission (1989) 51 SASR 1; State Bank of New South Wales Ltd v Stenhouse Ltd; Walpole v Partridge & Wilson (a firm) [1994] QB 106; Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615; Secretary of State for Trade and Industry v Bairstow [2004] Ch 1; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231.[41] Arthur J S Hall & Co (a firm) v Simons; Secretary of State for Trade and Industry v Bairstow.[42] Arthur J S Hall & Co (a firm) v Simons; Secretary of State for Trade and Industry v Bairstow; Habib v Radio 2UE Sydney Pty Ltd.