Redowood Pty Ltd v Link Market Services Pty Ltd

[2007] NSWCA 286

New South Wales

Court of Appeal

CITATION:	Redowood Pty. Limited v Link Market Services Pty. Limited (formerly known as ASX Perpetual Registrars Limited) [2007] NSWCA 286
HEARING DATE(S):	9 October 2007
JUDGMENT DATE:	18 October 2007
JUDGMENT OF:	Mason P at 1; Hodgson JA at 2; Bryson AJA at 55
DECISION:	1. Appeal allowed. 2. Orders below set aside, and in lieu thereof Notice of Motion dismissed, with ASX-Perpetual to pay Redowood’s costs of the motion and of the decision of the separate question. 3. ASX-Perpetual to pay Redowood’s costs of the appeal, and to have a certificate under the Suitors’ Fund Act if otherwise eligible.
CATCHWORDS:	PRACTICE - ESTOPPEL - Anshun estoppel - Abuse of process - Earlier proceedings alleging contract to purchase plaintiff's shares - Defendant puts on cross-claim against intermediary - Cross-claim stayed and intermediary takes no further part in proceedings - After earlier proceedings lost, plaintiff brings proceedings against intermediary alleging negligence - Whether plaintiff acted reasonably - Possibility of inconsistent decisions - Whether later proceedings should be dismissed.
PARTIES:	Redowood Pty. Limited - appellant Link Market Services Pty. Limited (formerly known as ASX Perpetual Registrars Limited) - respondent
FILE NUMBER(S):	CA 40302/06
COUNSEL:	Mr. V. Gray for the appellant Mr. A. McGrath with Mr. J. Williams for respondent
SOLICITORS:	Gye Associates, Sydney for appellant Henry Davis York, Sydney for respondent
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC50062/04
LOWER COURT JUDICIAL OFFICER:	Rein AJ
LOWER COURT DATE OF DECISION:	26 April 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	[2006] NSWSC 334

CA 40302/06
SC 50062/04

MASON P
HODGSON JA
BRYSON AJA

Thursday 18 October 2007

REDOWOOD PTY. LIMITED V. LINK MARKET SERVICES (formerly known as ASX PERPETUAL REGISTRARS LIMITED)

Headnote

FACTS
On 20 January 2003, Anaconda Nickel Limited (Anaconda) made a renounceable rights issue, under which each shareholder received 14 rights for each share currently held. Each right entitled the holder to subscribe for one new share for $0.05. Mongoose Pty Ltd (Mongoose) offered to purchase any such rights for $0.01 each.

The appellant (Redowood) held 84 million rights, 18,913,000 of which it sold on the Australian Stock Exchange (ASX) and the balance of which it sold to Mongoose by filling out and mailing a Rights Acceptance Form to the respondent (ASX-Perpetual), as required by the offer.

Redowood had purchased a further 55 million rights on the ASX, which it then sought to sell to Mongoose. Mr. Grant, acting for Redowood, was told by ASX-Perpetual that he needed to submit a second Rights Acceptance Form, which he purported to do on 11 February 2003; but in so doing entered the wrong SRN, the identifying number for Redowood on the Mongoose share registry.

ASX-Perpetual checked the Anaconda share register and found no holding corresponding to the given SRN, but found that the rights shown as held by Redowood had been fully accepted. As a result, it took no further action with respect to Redowood’s second Rights Acceptance Form, and it did not inform Redowood that it had declined to process this form. On 14 February 2003, the Anaconda rights offer lapsed.

Redowood commenced action in the Supreme Court against Mongoose, claiming that a valid contract was formed for the sale of the 55 million rights, and later, that Mongoose was estopped from denying that Redowood’s purported acceptance of the offer was effective. Mongoose put on a cross-claim against ASX-Perpetual, which was stayed pending determination of Redowood’s claim against Mongoose.

Einstein J held that no contract had been formed because the second Rights Acceptance Form had not been completed in conformity with Mongoose’s Rights Offer Document, and that the representations relied on did not indicate that Redowood’s obligation to comply with the offer document had been displaced. Redowood appealed unsuccessfully.

Redowood then brought separate proceedings against ASX-Perpetual, claiming damages for negligence and misleading conduct. The primary judge dismissed these proceedings on the basis that Anshun estoppel was made out. Redowood appealed.

HELD (allowing the appeal)
(per Hodgson JA, with Mason P and Bryson AJA agreeing)
(1) Anshun estoppel is based on the court’s inherent jurisdiction to prevent abuse of its process.
Rippon v Chilcotin Pty. Limited [2001] NSWCA 142, 53 NSWLR 198.
(2) Such an abuse of process may arise where there were previous proceedings between the same parties and it was unreasonable not to advance the present claim in those proceedings and/or where a party is seeking findings inconsistent with those in previous proceedings.
(3) In the present case, because the cross-claim in the previous case had been stayed and because Redowood does not seek different findings of fact and grounds its arguments in law differently to the earlier action, it was not so unreasonable that Redowood did not join ASX-Perpetual in the previous case that the present proceedings amount to an abuse of process. Hence, Anshun estoppel is not made out.
Rippon v Chilcotin Pty. Limited [2001] NSWCA 142 distinguished.

(4) A decision on the issue of Anshun estoppel is not discretionary in the sense of House v The King (1936) 55 CLR 499, and as such is open to be set aside on appeal if the court is appropriately satisfied that it is wrong.

ORDERS
1. Appeal allowed.
2. Orders below set aside, and in lieu thereof Notice of motion dismissed, with ASX-Perpetual to pay Redowood’s costs of the motion and the decision of the separate question.
3. ASX-Perpetual to pay Redowood’s costs of the appeal, and to have a certificate under the Suitors’ Fund Act if otherwise eligible.

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CA 40302/06
SC 50062/04

MASON P
HODGSON JA
BRYSON AJA

Thursday 18 October 2007

REDOWOOD PTY. LIMITED V. LINK MARKET SERVICES LIMITED (formerly known as ASX PERPETUAL REGISTRARS LIMITED)

Judgment

1 MASON P: I agree with Hodgson JA.

2 HODGSON JA: On 28 April 2006, Rein AJ made orders by which he dismissed proceedings brought by the appellant (Redowood) against the respondent (ASX-Perpetual) and ordered Redowood to pay certain costs.

3 These orders were made pursuant to a Notice of Motion brought by ASX-Perpetual seeking an order pursuant to Pt.28 r.2 of the Uniform Civil Procedure Rules for separate determination of the issue of whether Redowood was estopped on the basis of Port of Melbourne Authority v. Anshun Pty. Limited (1981) 147 CLR 589, and alternatively that the proceedings be stayed or the summons struck out as an abuse of process.

4 It appears that both sides agreed that the Anshun estoppel point was appropriately the subject of an order pursuant to Pt.28 r.2, and it appears clear that the orders ultimately made were as a result of the primary judge determining the Anshun estoppel point as a separate question.

5 Redowood appeals from those orders.

CIRCUMSTANCES

6 The case arises out of the lapsing in February 2003 of 55 million rights to acquire shares in Anaconda Nickel Limited (Anaconda), which Redowood claims caused it a loss of $550,000.00. For the purposes of this appeal, the relevant facts can be taken as set out below.

7 As at 19 January 2003, Redowood held 6 million shares in Anaconda, which had a security registration number (SRN) I0030002997 in Anaconda’s register.

8 On 20 January 2003, Anaconda issued a prospectus for a renounceable rights issue under which each Anaconda shareholder was entitled to 14 rights per share, each of which entitled the holder to subscribe for one new Anaconda share for 5 cents by 5pm on 14 February 2003. After that time, the rights lapsed.

9 On 21 January 2003, Mongoose announced an offer to purchase any such rights for 1 cent each, and appointed ASX-Perpetual to provide share registry services in respect of this offer.

10 On 21 and 22 January 2003, Redowood sold on the Australian Stock Exchange 18,913,000 of its original entitlement of 84 million Anaconda rights, leaving a balance of 65,087,000 rights.

11 On 30 January 2003, Mongoose issued a Rights Offer Document in respect of its offer, which was to open on 31 January 2003 and close at midnight on 13 February 2003.

12 On 6 February 2003, Redowood purchased 55 million Anaconda rights on the Australian Stock Exchange through its stockbroker Salomon Smith Barney, with settlement due on 11 February 2003. The stockbroker issued a Buy Contract Note in the name of Redowood with no SRN.

13 On 8 February 2003, Mongoose sent Redowood a Rights Acceptance Form offering to purchase its holding of 84 million rights. Mr. Grant of Redowood amended this form so as to accept the offer in relation to 65,087,000 rights, and he sent it by mail to ASX-Perpetual.

14 On 11 February 2003, as a result of telephone calls made by Mr. Grant to the ASX-Perpetual question line, shortly after 9.15am Mr. Grant received a call from Ms. Ooi of ASX-Perpetual. Mr. Grant told her that he had mailed a Rights Acceptance Form for 65,087,000 rights, and he needed to complete another form for an additional 55 million rights which Redowood had purchased on market. Ms. Ooi told him he would need to fax the Buy Contract Note to ASX-Perpetual, and ASX-Perpetual would then fax a Rights Acceptance Form to Redowood.

15 At about 9.38am on the same day, Mr. Grant sent a facsimile to Ms. Ooi which attached the Buy Contract Note and a copy of the completed first Rights Acceptance Form.

16 At about 3.40pm on the same day, ASX-Perpetual sent Mr. Grant a facsimile attaching a replacement Rights Acceptance Form in respect of the 55 million rights, which was partly completed.

17 At about 4pm on the same day, Mr. Grant sent a facsimile to Ms. Ooi which attached the completed and signed second Rights Acceptance Form with handwritten entries made by Mr. Grant, including changing the name of the rights holder to Redowood, the insertion of SRN I003002997 and the provision of a telephone number, and another copy of the completed first Rights Acceptance Form. He also sent the second Rights Acceptance Form and a copy of the first Rights Acceptance Form by express post to ASX-Perpetual.

18 After 4pm on the same day, on receipt of the facsimile with the second Rights Acceptance Form, ASX-Perpetual checked the holding referred to in it against the copy which it had of the Anaconda share register under SRN I003002997 and found no corresponding holding, checked the copy register under the name Redowood and found SRN I0030002997 and ascertained from the copy register that the rights holding under that SRN had been fully accepted. As a consequence, no further action was taken by ASX-Perpetual in respect of the second Rights Acceptance Form, which was not processed; and ASX-Perpetual did not inform Redowood that ASX-Perpetual had declined to process the second Rights Acceptance Form.

19 On 13 February 2003, ASX-Perpetual received a copy of Anaconda’s register of holders of rights, showing the state of the register at close of business on 12 February 2003, indicating that Redowood’s holding of 55 million Anaconda rights had an SRN of I30005244, which had been allocated some time between 6 and 12 February 2003.

20 The Mongoose rights offer closed at midnight on 13 February 2003, and at 5pm on 14 February 2003, the Anaconda rights offer closed. Accordingly, Redowood’s 55 million Anaconda rights, the subject of the unprocessed second Rights Acceptance Form, lapsed.

21 On 6 May 2003, Redowood brought proceedings in the Commercial List against Mongoose claiming that by its second Rights Acceptance Form sent on 11 February 2003 it had accepted Mongoose’s offer in relation to the 55 million rights it had purchased, and claiming the purchase price of $550,000.00.

22 By its Defence filed in or about July 2003, Mongoose denied the existence of a contract, and specifically denied that the act of ASX-Perpetual in sending Redowood a partially completed Rights Acceptance Form was an act that gave rise to contractual liability in Mongoose.

23 As well as filing this Defence, on 25 August 2003 Mongoose put on a cross-claim against ASX-Perpetual, claiming to the effect that, if Mongoose was contractually liable to Redowood, its liability was caused by ASX-Perpetual’s negligence.

24 On 3 October 2003, orders were made by consent of all parties, staying this cross-claim pending determination of Redowood’s claim against Mongoose; and ASX-Perpetual took no further part in the proceedings. On the day those orders were made, Bergin J raised the possibility of findings adverse to ASX-Perpetual witnesses if there were a split hearing, and Ms. Badman on behalf of ASX-Perpetual informed Bergin J that ASX-Perpetual had considered that matter.

25 Redowood’s claim against Mongoose was heard by Einstein J on 23 and 24 February 2004. On 23 February 2004, Redowood foreshadowed an amendment to its claim to add a claim based on estoppel, and such an amendment was made on 24 February. The claim was to the effect that, by reason of the dealings between Mr. Grant and Ms. Ooi, Mongoose was estopped from denying that what Mr. Grant did was effectual to constitute a valid acceptance of Mongoose’s offer. The evidence in the present case does not suggest there was at that time any consideration of the effect this amendment might have on the cross-claim and/or on ASX-Perpetual’s decision not to be involved in the proceedings.

26 In his judgment given on 3 March 2004, Einstein J found in Mongoose’s favour. He held there was no contract, because Redowood’s second Rights Acceptance Form did not conform to Mongoose’s Rights Offer Document; and he held there was no estoppel, because the representations relied on did not indicate that Redowood’s obligation to comply with that offer document had been displaced.

27 On the same day, Redowood made an application for leave to file an Amended Summons, seeking to plead a cause of action against ASX-Perpetual; but this was not pressed when Einstein J indicated clear opposition to that course.

28 These present proceedings (claiming damages for negligence and misleading conduct) were commenced on 13 May 2004. An appeal against Einstein J’s decision was dismissed by the Court of Appeal on 4 March 2005, and an application for special leave to appeal to the High Court was subsequently dismissed. The application to the primary judge that resulted in his dismissal of these proceedings was heard in March 2006.

DECISION OF PRIMARY JUDGE

29 In considering ASX-Perpetual’s application, the primary judge dealt with evidence given by Redowood’s solicitor to the effect that, until Ms. Ooi gave evidence in the Mongoose proceedings, he would not have been prepared to sign a certificate under s.198L of the Legal Profession Act 1987 supporting a cause of action to the effect of the causes of action pleaded in these proceedings. The evidence before the primary judge included documents from this solicitor’s file, including communications between him and the client and between him and Counsel, and also notes of meetings. On the basis of that material, the primary judge was not satisfied that the reason for failure to join ASX-Perpetual in the Mongoose proceedings was lack of knowledge of what occurred in the office of ASX-Perpetual or inability to provide a s.198L certificate.

30 The primary judge then mentioned other possible reasons for this, doubted some of them, and went on to say that what was the real reason did not matter because none of the reasons were reasons put forward by Redowood.

31 The primary judge then referred to Port of Melbourne Authority v. Anshun Pty. Limited (1981) 147 CLR 589. He identified two limbs to Redowood’s present claim, namely a negligent misinformation point (not informing Redowood that the Rights Acceptance Form would not be an effectual acceptance) and a failure to act point (in particular in not linking the Buy Contract Note and the Rights Acceptance Form, and not notifying Redowood of any doubt or rejection).

32 He discussed a number of cases in which the Anshun principle was considered.

33 He referred to statements that the possibility of conflicting decisions is an important consideration for Anshun estoppel. He found that there could be findings in the present proceedings inconsistent with those in the Mongoose proceedings, in particular:

1. There could be different findings as to what was said between Mr. Grant and Ms. Ooi.
2. For the Court to find that Ms. Ooi’s statements did cause Redowood to lose the benefit of the contract would be inconsistent with the basis on which the estoppel case was rejected in the Mongoose proceedings.
3. In the Court of Appeal, Bryson JA had said the Rights Offer Document did not oblige Mongoose or ASX-Perpetual to substitute a different SRN in the Acceptance Form, whereas some such obligation was asserted in these proceedings.

34 The primary judge referred to an argument put for Redowood likening the case to a claim for breach of warranty of authority; and he expressed the view that if a principal denies a contract on the basis that the person dealing with the plaintiff was not his authorised agent, then the appropriate time for the plaintiff to bring a claim for breach of warranty of authority, barring exceptional circumstances, is in the same proceedings as a claim against the principal; and that in such a case, should the principal be held liable, it could be expected that a court would make a Bullock or Sanderson order having the effect that the principal pay the costs of joining the agent.

35 The primary judge concluded that the claims brought against ASX-Perpetual were so relevant to the subject matter of the proceedings against Mongoose that it was unreasonable for Redowood not to rely on them in those proceedings. He referred to the comments of Bryson JA mentioned above, to the fact that the Commercial List was designed for speedy resolution of disputes, to the potential for conflicting judgments, and to the fact that ASX-Perpetual was joined as a cross-defendant in the Mongoose proceedings. He said it was clear that the non-joinder of a third party can be justified, but that Redowood had failed to demonstrate there were reasons justifying the non-joinder of ASX-Perpetual in the Mongoose proceedings.

GROUNDS OF APPEAL

36 As filed, the grounds attacked the primary judge’s findings as to the potential for conflicting judgments. The written and oral submissions ranged more widely, and the grounds of appeal were amended at the hearing to include a ground that the primary judge was wrong to hold that these proceedings were an abuse of process and should be dismissed pursuant to the principle articulated in Anshun and/or for any other reason. The amendment was allowed, on the basis that that ground was limited to the matters advanced in the written and oral submissions.

SUBMISSIONS

37 Mr. Gray for Redowood submitted that the primary judge erred in holding that there was potentiality for conflicting decisions in a way relevant to Anshun estoppel. Redowood’s case against ASX-Perpetual accepted, and in fact depended on, the proposition that there was no contract, as had been found in the Mongoose proceedings. It was not saying that compliance with the representations made by or assumptions derived from what Ms. Ooi said would have entitled Redowood to a contract, but rather that, if Redowood had been informed that this would not be an effectual acceptance, it could have saved the situation; and also that if ASX-Perpetual had linked the Buy Contract Note and the second Rights Acceptance Form and/or notified Redowood of any doubt or of rejection, again the situation could have been retrieved. The possibility of different findings of primary fact is always there when there are cases involving different parties, and in any event, Redowood was not seeking any different finding of fact.

38 More generally, Mr. Gray submitted there was an onus on ASX-Perpetual to prove that the conduct of Redowood was unreasonable, in a way that meant the present proceedings were an abuse of process. He submitted that this onus was not discharged merely because the primary judge rejected reasons put forward by Redowood for not joining ASX-Perpetual in the earlier proceedings; and the other matters referred to by the primary judge did not justify a finding of that kind of unreasonableness.

39 Mr. McGrath for ASX-Perpetual pointed out that the course of dealing between Redowood and Mongoose, considered in the Mongoose proceedings, was solely through ASX-Perpetual; and that although there were different forms of action, there was a complete coincidence of the relevant facts. He submitted that on the evidence, Redowood knew this at the time of the earlier proceedings, and knew at that time everything necessary to bring the proceedings against ASX-Perpetual.

40 Mr. McGrath submitted that it was not necessary to base Anshun estoppel that there be a possibility of conflicting judgments; but he submitted that the primary judge was correct in his views on this question. In particular, he submitted that Redowood in the present proceedings was relying on the same conversations as relied on for its estoppel case in the Mongoose proceedings; and its allegations in the present case were inconsistent with the finding in the Mongoose case that the relevant representation or assumption did not displace what was required to comply with the Mongoose offer. Mr. McGrath also pointed to the possibility of an inconsistent finding as to the existence of a binding contract between Redowood and Mongoose, although he did not suggest that ASX-Perpetual would be seeking such a finding or that it could plausibly do so.

41 Mr. McGrath submitted that Anshun estoppel depends on the particular circumstances of each case, and that the primary judge had, having considered all the facts, determined that Redowood had acted unreasonably. The primary judge had rejected the reasons advanced by Redowood for not joining ASX-Perpetual in the Mongoose proceedings, and it was highly relevant to a decision on the reasonableness of Redowood’s conduct that the only reasons it advanced were rejected.

42 Mr. McGrath submitted that, just because the cross-claim against ASX-Perpetual in the Mongoose proceedings was stayed, this did not make those proceedings other than tripartite proceedings; and the present proceedings involved two of the same parties as those tripartite proceedings. There was oppression and prejudice to ASX-Perpetual also in that its employees had given evidence in the Mongoose proceedings and had been cross-examined by Redowood’s Counsel, without the presence and assistance of legal advisers or ASX-Perpetual.

DECISION

43 In Anshun at 602, the leading judgment of Gibbs CJ, Mason J and Aiken J asserted that in cases concerning the extended estoppel based on Henderson v. Henderson (1843) 3 Hare 100, 67 ER 313, “the abuse of process test is not one of great utility”. They preferred to say “there will be no estoppel unless it appears that the matter relied on as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it”. They also (at 603-4) adopted the proposition that “a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment”, in the sense that the two judgments “appear to declare rights that are inconsistent in respect of the same transaction”.

44 This leading judgment did not treat this extended estoppel as being based on jurisdiction to prevent abuse of process; but in my opinion, this extended estoppel, operating beyond the area of res judicata, issue estoppel and merger is (as Justice K.R. Handley said in his article “Res Judicata: General Principles and Recent Developments”, (1999) 18 Australian Bar Review 214 at 219) “based on the court’s inherent jurisdiction to prevent abuse of its process by proceedings which are vexatious, that is unreasonable”. In Rippon v. Chilcotin Pty. Limited [2001] NSWCA 142, 53 NSWLR 198, Handley JA, which whom Mason P and Heydon JA agreed, found Anshun estoppel made out and on that basis found the proceedings (albeit not oppressive) to be an abuse of process, and ordered that they be dismissed.

45 In cases where the earlier proceedings and the later proceedings are between the same parties, as in Anshun itself, a finding of unreasonableness in not raising a matter in the earlier proceedings would almost inevitably mean that the later proceedings were oppressive and an abuse of process. Where the parties are different, the test of unreasonableness is still relevant; but in my opinion it must either be considered not conclusive, or else must be understood as involving unreasonableness of such a nature that the later proceedings against different parties are an abuse of process.

46 In the present case, if the earlier proceedings had proceeded as a tripartite contest, with the cross-claim against ASX-Perpetual being heard together with Redowood’s claim against Mongoose, then I think it would have been strongly arguable, even though there was no issue joined directly between Redowood and ASX-Perpetual, that these later proceedings involve the same parties as the previous proceedings, that it was unreasonable for Redowood not to agitate a claim against ASX-Perpetual in the earlier proceedings, and that the present proceedings are oppressive and an abuse of process. However, six weeks after the cross-claim was brought, it was stayed and ASX-Perpetual took no further part in the proceedings, and in particular it did not participate in the hearing. In those circumstances, as in Rippon, I do not think these proceedings against ASX-Perpetual can be considered oppressive. I do not think that the circumstance that ASX-Perpetual employees gave evidence and were cross-examined in the earlier proceedings, without legal advisers, makes the present proceedings oppressive or unfair.

47 The possibility of inconsistent findings may be a reason for finding proceedings to be an abuse of process. In Rippon, the plaintiff had in previous proceedings failed to prove reliance on certain accounts. The Court said that it would be an abuse of process to bring proceedings against a different defendant for the same loss based on reliance on the same accounts; and it also said that the plaintiff’s attempt to avoid this by alleging reliance on earlier accounts was mere camouflage and in any event had no prospect of success.

48 There was nothing like that in the present case. Looking at the first of the three matters referred to by the primary judge, Redowood is not seeking any different finding of fact, and the possibility that a different finding adverse to Redowood might be made by a different judge in a hearing between different parties gives little support to Anshun estoppel. As regards the second matter, Redowood is not alleging that there was a representation or assumption such that compliance would have absolved Redowood from complying with the requirements of Mongoose’s offer, but is rather alleging that the negligence of ASX-Perpetual caused it to act in such a way that it did not obtain a contract and was not otherwise able to retrieve the situation. As regards the third matter, the respondent is not alleging any duty based on the Rights Offer Document, but rather a duty based on Redowood’s own dealings with ASX-Perpetual. Accordingly, in my opinion the primary judge was in error in his findings on the question of inconsistent judgments.

49 The possibility of a finding that there was a binding contract between Redowood and Mongoose, suggested in argument by Mr. McGrath, is extremely remote, having regard to the reasoning of Einstein J and the Court of Appeal in the Mongoose proceedings. It is true that there is no estoppel binding ASX-Perpetual, and such a finding could possibly be sought by ASX-Perpetual, because it would defeat Redowood’s claim. But plainly, this is not an inconsistent finding sought by Redowood; and in my opinion, particularly having regard to the remoteness of this possibility, it does not significantly support the existence of an Anshun estoppel.

50 In my opinion also, the approach of the primary judge to the somewhat analogous case of a breach of warranty of authority was too sweeping. In cases such as that, and more generally where a plaintiff may have alternative remedies against different parties, to suggest that a plaintiff should generally sue all of them, barring exceptional circumstances, would be to encourage complex and lengthy litigation, and promote the incurring of costs where there is no certainty that a Bullock or Sanderson order would be obtained. In my opinion, plaintiffs should be permitted reasonable latitude in deciding whether to sue just one defendant, or to join a number of defendants in alternative claims.

51 The circumstance that the primary judge did not accept the reason put forward by Redowood for not joining ASX-Perpetual in the Mongoose proceedings was relevant to the question whether the present proceedings were an abuse of process, but did not of itself discharge the onus lying on ASX-Perpetual to show that it was objectively unreasonable for Redowood not to join ASX-Perpetual in the previous proceedings, and that these proceedings were an abuse of process.

52 In my opinion, for the reasons I have given, it was not shown that Redowood not joining ASX-Perpetual in the previous proceedings was objectively unreasonable in a sense that would render the present proceedings an abuse of process, and the primary judge was in error in finding Anshun estoppel was made out.

53 There was some discussion at the hearing whether the decision of the primary judge was a discretionary one to which the principles of House v. The King (1936) 55 CLR 499 applied. In my opinion, this decision is not in that category, but rather is one, like a finding of negligence, which an appeal court can and should set aside if the appeal court is appropriately satisfied that it was wrong. If that view is incorrect, in my opinion an error of the kind referred to in House v. The King is shown in the primary judge’s consideration of the question of conflicting judgments, for the reasons given above; and also in his suggestion that the only reasons relevant in considering whether failure to join ASX-Perpetual in the Mongoose proceedings was unreasonable, were those actually put forward in evidence by Redowood.

ORDERS

54 For those reasons, in my opinion the following orders should be made:

1. Appeal allowed.
2. Orders below set aside, and in lieu thereof Notice of Motion dismissed, with ASX-Perpetual to pay Redowood’s costs of the motion and of the decision of the separate question.
3. ASX-Perpetual to pay Redowood’s costs of the appeal, and to have a certificate under the Suitors’ Fund Act if otherwise eligible.

55 BRYSON AJA: I agree with Hodgson JA.

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