Rade Zujic v Johnston Withers No. SCGRG 96/1085 Judgment No. 5749 Number of Pages 9 Practice

[1996] SASC 5749

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA BURLEY J, SUPREME COURT MASTER

CWDS
Practice - application for immediate relief by defendants - two previous actions broughtby the plaintiff against the defendants dismissed - whether plaintiff estopped by res judicata from pursuing this action. SCR 25.04, referred to. Port of Melbourne Authority v Anshun Pty. Ltd. (1981) 147 CLR
589; Rogers v Legal Services Commission Unreported, delivered 31st August 1995, Judgment No. 5238 (Full Court), applied.

HRNG ADELAIDE, 1 August 1996 #DATE 12:8:1996 #ADD 17:9:1996

Plaintiff in person.

Counsel for defendant :     Mr D Stratford

Solicitors for defendant : Stratford and Co

ORDER
Action dismissed.

JUDGE1 BURLEY J By application dated 17th July 1996 the defendant has sought the following orders:-
    "1. That pursuant to rule 25.04 of the Supreme Court Rules
    the defendant be granted summary judgment.

2. In the alternative, that the statement of claim be struck
    out.

In the further alternative, that the plaintiff provide
    security for the defendants' costs."

2. At the hearing of the application on 1st August 1996, the plaintiff appeared in person and Mr Stratford appeared for the defendant. The plaintiff has not retained a solicitor for the purposes of instituting and prosecuting this action and therefore the statement of claim has not been professionally drawn. It is as follows:-
    "1. The plaintiff is and was at all the material times a
    natural person resident in the State of South Australia.

2. The defendant is and was at all the material times a
    natural a firm duly incorporated in the State of South
    Australia.

Duty

3. By a deed dated some where in April, 1991 (the First
    Duty) the defendant had a duty to the plaintiff dispose the
    unclaimed money recovered by action 2902/1988 in the
    District Court, interested damages which the firm might, or
    might thereafter, be liable to dispose to the plaintiff
    pursuant to any agreement between the plaintiff and the
    firm. The action 1311/1990 in the District Court (the
    Second Duty) have a duty to dispose interested damages which
    the Firm might, or might thereafter, be liable to dispose to
    the plaintiff some where in May 1996 pursuant to any
    agreement between the plaintiff and the firm.

4. The plaintiff will refer to the First at the Chambers of
    this action for its full terms and affect.

5. As at the some where in April 1991 the defendant was in
    due to the plaintiff in respect of the Claim for working
    compensation. As the defendant had no disposed any sum what
    was the defendant's due."

3. It was contended by Mr Stratford that the plaintiff could not succeed on any view of the facts or law (thereby referring to the requirements of Rule 25.04(1)(c)) because the plaintiff had sought to litigate the same points raised in the current statement of claim in the two earlier actions and each of those actions have been previously dismissed. Because of the dismissal, it was contended, the plaintiff was estopped by res judicata or issue estoppel from prosecuting the within action and, consequently, it should be dismissed.

4. It is essential to the defendant's case on this application that the defendant establish that the admitted dismissals of the two earlier actions constituted a res judicata of the issues respectively raised in those proceedings and that the issues raised (or which should have been raised) in one or both of those previous proceedings were essentially the same as those sought to be raised in this action: Port of Melbourne Authority v Anshun Pty. Ltd. (1981) 147 CLR 589.

5. Before turning to the issues which were raised in the two previous actions in this Court, I should also mention that in yet another action brought by the present plaintiff in this Court, No. 203 of 1996, the plaintiff applied to join Johnson Withers as a defendant some time after the commencement of the original proceedings. That application was dealt with by me on 16th May 1996 and I refused the application because I was not satisfied that on that application, the plaintiff had demonstrated that he had an arguable cause of action against the defendants named in this action. It was not suggested by Mr Stratford that my refusal of that application constituted a res judicata or issue estoppel which had any bearing upon the present application in this action brought pursuant to Rule 25.04.

6. The first of the two earlier actions is No. 1771 of 1993. The statement of claim in that action is as follows:-
    "1. The plaintiff is and was at all material times a natural
    person resident in the State of South Australia.

2. The defendant is and was at all material time a firm duly
    incorporated in the State of South Australia.

Duty

By a deed dated the 16th August 1992 (the First Duty) the
    defendant had a duty to the plaintiff payment of all sums of
    money, interested damages which the Firm might, or might
    thereafter, be liable to pay to the plaintiff pursuant to
    any agreement between the plaintiff and the Firm.The
    plaintiff will refer to the First at the trial of this
    action for its full terms and effect.As at the 11th February
    1992 the defendant was indebted to the plaintiff in respect
    of the Claim for working compensation and MVA. As the
    defendant have no transferred any sum what was the
    plaintiff's due.

PARTICULARS OF DEBT

The actions No. 2507A/1986, 1646/1987, 1311/1987

Principal Outstanding

As of 16 May 1992 the defendant calculated by trial of the
    Judge's decision.

Damages, (including interest "35")    $436,896.00

Interest of investment account and percentum

Interest after 16 May 1992            $33,535.00

Future economic loss                 $75,000.00

such further or others orders as this Honourable Court dees
    fit".

7. In that action, the defendant, who is the same defendant in the current proceedings, applied for the following order by notice for further directions dated 16th November 1993:-
    "1. That the statement of claim be struck out."

8. The defendant relied on Rule 3.01 of the Supreme Court Rules which is as follows:-
    "3.01 Subject to Rule 2 except where the Court otherwise
    orders no breach of or non compliance with a Rule which does
    not arise out of disobedience or contumacy in relation to a
    prior order of the Court shall cause any proceedings to
    abate or be dismissed out of Court. In cases of
    disobedience or contumacy the court shall not order that the
    proceedings abate or be dismissed unless there is no other
    way of securing obedience to or compliance with the orders
    of the Court. Nothing in this Rule affects:The inherent
    jurisdiction of the Court to dismiss proceedings which
    disclose no cause of action known to the law or cannot by
    amendment be made to disclose such a cause of action or
    which are frivolous, vexatious or an abuse of the process of
    the Court;The power of the Court to grant a stay of
    proceedings where the justice of the case so requires."

9. It is apparent from the affidavit of Mr Forrest sworn on 15th November 1993 and filed in support of the defendants' application in action 1771 of 1993 that the defendant sought the dismissal of the proceedings because the statement of claim did not disclose a cause of action and that it was vague and embarrassing. In general, it was said that the statement of claim did not comply with the rules as to pleadings. The application was adjourned from time to time to enable further affidavit material to be put in. It appears from the affidavit material that the nature of the application may have changed. Initially the defendants sought to argue that the pleading established no reasonable cause of action. That contention can only be based on the content of the statement of claim itself as opposed to affidavit material. The filing of affidavit material suggests that an application for summary relief may have been entertained by the Court. An order was finally made on the 8th June 1994. The action was dismissed with costs awarded to the defendants. Reasons were given which I have read. The basis for the order for dismissal is disclosed in the penultimate sentence of the reasons where it was said:-"I think to save both parties any further and unnecessary costs I should simply exercise an inherent jurisdiction to dismiss the claim as being plainly untenable."

10. The question arises on the application before me whether the dismissal of the previous action on 8th June 1994 has given rise to res judicata or issue estoppel.

11. In Rogers v Legal Services Commission, unreported decision of the Full Court delivered 31st August 1995, Judgment No. S5238, the Full Court had to deal with "whether or not the principle of res judicata applies in circumstances where an action has been struck out for a defect in the pleadings...": per Lander J at page 25, Cox and Prior JJ concurring. Having referred to the relevant authorities, his Honour said at page 27 of his reasons:-
    "In the ordinary course of events where a trial has taken
    place and a judgment entered, it is not difficult to
    determine whether the cause of action, the subject matter of
    a current set of proceedings, has been previously disposed
    of by a tribunal in circumstances which would give rise to a
    plea of res judicata. More difficulty arises in
    circumstances where the matter has not gone to trial and has
    not been formally adjudicated upon by a tribunal for reasons
    that there has been a withdrawal of one party before the
    matter has concluded or the parties have agreed to a
    compromise or judgment has been entered by reason of the
    default of another party or because the action has simply
    been dismissed.I am unable to find any authority which
    directly bears on the matter agitated in this appeal. I
    think that may be so because the order which is said to have
    given rise to the res judicata is a most unusual order, for
    reasons that I have already stated, in that the action has
    been dismissed because a cause of action cannot be
    identified on the then pleadings. The very nature of the
    order, i.e. that the proceedings are dismissed because the
    proceedings do not identify a cause of action, rather
    suggest that the cause of action could not have been
    disposed of, because, in fact the finding is there was no
    cause of action and therefore no cause of action could have
    merged into the judgment."

12. His Honour then referred to a number of instances where proceedings are brought to an end by various processes under the Rules and examined them to see whether or not res judicata might arise. At page 28 of his reasons, his Honour referred to Pople v Evans (1968) 2 All ER 743 where it was held that res judicata cannot be found on an order for dismissal for want of prosecution. At page 29 of his reasons, his Honour said:-
    "So also does an action that is dismissed stand in a
    different position to an action in which judgment has been
    given after a hearing on the merits. As to whether or not
    the dismissal of an action gives rise to a matter capable of
    being pleaded as res judicata, that may depend upon whether
    the dismissal of the action is seen to have necessarily
    involved a determination of any particular issue or question
    of factor law. If it does not, then the dismissal decides
    nothing except the dismissal of the action itself."

13. His Honour then referred to Bains v The State Bank of New South Wales
(1985) 2 NSWLR 729 where Powell J held that if an action were dismissed for default in complying with an order for discovery, res judicata would not apply and the plaintiffs in that case would be able to commence again, although they may be subject to an application for a stay of the new proceedings.

14. Lander J then said at page 30 of his reasons:-
    "There are circumstances were a plea of res judicata will be
    good, even though there has been no investigation of the
    merits of a matter by the tribunal. In cases where consent
    orders or judgments were entered, notwithstanding that the
    Court has been relieved of the obligation of carrying out
    the investigation, that consent judgment will operate as a
    bar to subsequent proceedings based on the same subject
matter. The Bellcairn (1885) 10 PD 161. Issacs v Ocean
    Accident and Guarantee Corporation (1958) 58 SRNSW 69."

15. His Honour also referred to Chamberlain v The Deputy Commissioner of Taxation (1988) 164 CLR 502 where the High Court confirmed that res judicata would apply after a consent judgment.

16. Having reviewed further instances of judgments obtained other than from an investigation of the merits of the case, his Honour said at page 32 of his reasons:-
    "In this appeal, the only matter that was decided in the
    first proceedings was whether the statement of claim, on the
    face of it, disclosed a cause of action. No finding was
    made as to any fact, nor as to the availability of any cause
    of action. In those circumstances, it seems to me it cannot
    be said that the cause of action in the first proceedings
    has merged into a judgment. The principle of res judicata
    does not have application in those circumstances."    In
    applying the principles enunciated by the Full Court in
    Rogers v Legal Services Commission of South Australia to the
    first dismissal of proceedings relied upon by the defendant
    in this action, the dismissal did not give rise to an
    estoppel by res judicata or to an issue estoppel because, at
    best, it can be characterised as a dismissal of the action
    in that the statement of claim failed to disclose an
    arguable cause of action. It cannot be characterised as an
    application which lead to a dismissal on the merits,
    although it appears that the Court, on that occasion, did,
    to some degree, go into the merits of the plaintiffs case
    because recourse was had to affidavits and other
    documentation. However, it was not an investigation on the
    merits in the sense that the matter proceeded to a summary
    hearing or trial and was then dismissed. In those
    circumstances, I am of the view that the dismissal of the
    proceedings in 1771 of 1993 does not assist the defendant in
    this action because the judgment in the previous action did
    not give rise to a res judicata or issue estopped.     In
    arriving at these conclusions I have not overlooked the
    judgment of Mullighan J in TRAMS v The Grand Hotel, an
    unreported decision delivered on the 30th November 1993,
    judgment No. S4296. In that case his Honour was of the view
    that it was not open to the Court to dismiss an action for
    any limitations, no matter how serious, in a pleading except
    in the circumstances contemplated by Rule 3.04. It has not
    been necessary for me to consider whether that case applies
    to a determination of this application because, in any
    event, the defendant has failed to establish that res
    judicata arose in respect of the dismissal in Action No.
    1771 of 1993.    The second action resulting in dismissal
    relied upon by the defendant in this action is action No.
    860 of 1995. The parties in that action are the same as the
    parties in this action. The defendant applied for dismissal
    of the plaintiff's action pursuant to the provisions of Rule
    25.04. To that extent, the same approach has been adopted
    by the defendant in these proceedings. The claim was
    dismissed on that application and reasons were given which
    are as follows:-"Mr Zujic is yet again before the Court,
    this time seeking to recover from solicitors who acted for
    him in two District Court Actions numbered 1646/87 and
    1311/90. He seems to believe that Judge Pirone's decisions
    in both of those cases do not represent all that Judge
    Pirone said at the time of delivery of those judgments, he,
    Mr Zujic, believing that his damages for pain and suffering
    were assessed at the highest end of the scale referred to in
    the Wrongs Act and that the judgments have been "altered" by
    a Mr Duffy of the defendant's firm.I have the judgments
    before me and it is patently clear that Mr Zujic is quite
    wrong in his belief.He believes, think, that somehow his
    solicitors have got their hands on these "extra" damages, in
    his eyes, and that they should be ordered to pay them out to
    him.I suspect that this is a re-run of another case that
    came before me involving a compensation claim that the had
    and in which he again claimed that his solicitors had
    retained certain monies which he believed had been awarded
    to him. I found in that case (see Action 1771/93) that he
    was entirely mistaken and now, I think, he is trying to
    raise the same complaint but relying upon judgments of Judge
    Pirone to justify his claims. He failed then as he fails
    now.I have carefully looked at all of the papers before me
    and can come but to one conclusion. Mr Zujic cannot
    possibly succeed in this action. There are simply no
    grounds at all for believing that the defendant is holding
    or has unlawfully withheld any monies owing to the plaintiff
    whether in this or in any other action he has chosen to
    launch.The claim is dismissed with costs to the defendant."

17. It appears from those reasons that the Court examined the merits of the plaintiff's case by reference to the evidence then before the Court. One of the affidavits in support, that of a Mr Stone, sworn on 28th July 1995 contains the statement:-
    "I am instructed to apply for summary judgment in favour of
    the defendant pursuant to Rule 25.04 of the Supreme Court
    Rules on the grounds that the plaintiff has no legitimate
    cause of action against the defendant as pleaded or at all
    and that his claim cannot succeed on any possible view of
the facts or the law."

18. In para.2 of the defendant's defence the defendant pleads:-
    "The defendant says that the plaintiff has failed to
    identify any cause of action known to law and denies that
    the plaintiff is entitled to the relief claimed."

19. The statement of claim in action No. 860 of 1995 is as follows:-
    "STATEMENT OF CLAIMThe plaintiff is and was at material
    times a natural person resident in the state of South
    Australia.The defendant is and was at all material times a
    firm duly incorporated in the state of South
    Australia.

Duty

By a deed dated March 1991 (the first Duty) the defendant
    had a duty to the plaintiff payment of all interested
    damages the trial Judge gave the order which the Solicitors
    might, or might there after, be liable to pay to the
    plaintiff. As at April 1991 the defendant was indebted to
    the plaintiff pursuant to any agreement between the
    plaintiff and the solicitors.The plaintiff will refer to the
    First at the trial of this action for its full terms and
    effect.

PARTICULARS OF DAMAGES

The damages occurred by the accident 15th May 1986.The
    Messrs Jefferson claimed by the Action No. 1646 on behalf of
    the plaintiff the sum of $150 000. And the special
    damages.The damages occurred by the accident on 27
    May 1989.The Solicitor Johnston Withers claim by the Action
    No.1311 on behalf of the plaintiff the sum of $150 000.The
    interest prior to the judge's order and after the order
    prior to the Supreme Court order. Such further or other
    orders as this honourable Court deem fit."

20. It is difficult to know what the plaintiff was seeking to pursue in Action No. 860 of 1995, but some attempt was made to discern what was sought to be advanced by the plaintiff. That attempt was made in the course of an application pursuant to Rule 25.04. I have perused the file in Action No. 860 of1995 and it is clear that the Court had before it affidavit material from both the defendants and the plaintiff. It is clear from the reasons given when the action was dismissed that the Court went into the merits of the parties' respective cases and determined the action accordingly. Thus, I consider that the nature of the determination in that action was a determination on the merits. As such, there was a final determination which gave rise to res judicata to the extent of the issues determined by the pleadings. It follows that if the defendant, on the application before me, has established that the issues which were or should have been raised in Action No. 860 of 1995 are largely the same as the issues raised by the plaintiff, the current action should be dismissed.

21. Although it is difficult to discern any arguable cause of action raised in the statement of claim of the plaintiff in the action before me and Action No. 860 of 1995, it must be acknowledged that there appears to be a common thread running through each of the two previous actions and the action before me. After careful enquiry of the plaintiff during the course of submissions, it became apparent to me that the plaintiff considers that the defendants have retained or converted monies which rightfully belong to him. He has not been able to plead such a case with any clarity or indeed particularity. The evidence that has been adduced, both in this action and in the previous two actions, clearly points in the opposite direction but on this application I cannot and should not have regard to that evidence. The defendant has pursued a claim for relief pursuant to the provisions of Rule 25.04 on the basis that whatever the cause of action sought to be pursued by the plaintiff in these proceedings, he is clearly estopped from doing so by reason of res judicata in the two previous actions. The defendant has failed in respect of the first order for dismissal but I think must succeed in respect of the second. There is a sufficiently discernible "common thread" to the two actions that, applying the principles set out by the High Court in Port Melbourne Authority v Anshun (supra), requires a determination that the matters that were and should have been raised by the plaintiff in Action No. 860 of 1995 are essentially the same as the matters raised in this action. Accordingly, the plaintiff is estopped by res judicata from pursuing this action.

22. For the above reasons, I dismiss the within action pursuant to the provisions of Rule 25.04. The plaintiff must pay the defendant's costs of action, including the costs of the application, to be taxed or agreed.