Port City Pty Ltd v Fiocco - [2022] WASC 226

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

In this action…

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.

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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

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

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.