Ronald Edward and Odetta Medich v Finn Foster and Associates Pty Limited

[2006] NSWDC 110

CITATION:	Ronald Edward & Odetta Medich v Finn Foster & Associates Pty Limited [2006] NSWDC 110
HEARING DATE(S):	7 November 2006
JUDGMENT DATE:	9 November 2006
JUDGMENT OF:	Rolfe DCJ
DECISION:	Motion Dismissed; Defendant to pay the Plaintiffs' costs of the Notice of Motion, such costs to be agreed or assessed on the ordinary basis and, upon agreement or assessment, to be paid within one month.
CATCHWORDS:	Application by Defendant for leave to plead Defence of abuse of process - Defendant previously unsuccessful in applying to the Court to strike out Plaintiff's claim as an abuse of process - Leave to amend refused on the basis that it was no more than an attempt to re-litigate an issue already decided by the Court.
LEGISLATION CITED:	Trade Practices Act 1974 Uniform Civil Procedure Rules
CASES CITED:	Brimson v Rocla Concrete Pipes Ltd (1982) 2NSWLR 937 Wentworth v Rogers (unreported) NSW SC 28/4/95 Haines v ABC (1995) 43 NSWLR 404 at 410B & 411 C-F
PARTIES:	Ronald Edward & Odetta Medich (Plaintiffs) Finn Foster & Associates Pty Limited (Defendant)
FILE NUMBER(S):	4805/04
COUNSEL:	S Kerr with B Bradley (Plaintiffs) G Curtin with D Jenkins (Defendant)

JUDGMENT

1 The plaintiffs are home owners who took out insurance with Chubb Insurance Company of Australia Limited.

2 The plaintiffs made a claim on Chubb. Chubb refused indemnity and the plaintiffs unsuccessfully sued Chubb in this Court.

3 The defendant, Finn Foster & Associates, is an insurance broker. The plaintiffs have sued the defendant claiming damages in negligence for failing to pass on to Chubb their claims history and effecting appropriate insurance on their behalf. The plaintiffs say these breaches resulted in Chubb’s refusal to indemnify the plaintiffs under their insurance policy with it. The plaintiffs put their claim in the alternative on the basis that the defendant engaged in misleading or deceptive conduct, or conduct which was likely to mislead or deceive in contravention of s 51A of the Trade Practices Act 1974. Alternatively, the plaintiffs say the defendant engaged in conduct that was false and misleading in breach of s 52 of that Act.

4 By its Notice of Motion filed on 1 September 2006 the defendant seeks the leave of the Court to file and serve a further amended defence in the form of the document which is annexure A to the Notice of Motion. The relevant amendment is that set out in paragraph 27. As paragraph 27 (l) makes clear, the defendant is seeking to plead, by reason of the matters set out in paragraph 27 (a) – (k) inclusive, that the proceedings should be dismissed or struck out as an abuse of process pursuant to part 13 rule 4, or part 14 rule 28 of the Uniform Civil Procedure Rules.

5 The plaintiff opposes the defendant’s application for leave to amend on the bases that the amendment sought is futile and amounts to an abuse of process itself. In support of this contention the plaintiffs rely on the written submissions dated 6 November 2006 of their counsel Mr Kerr. It is not necessary to set those submissions out in detail. In a nutshell, Mr Kerr submits that the futility arises because his Honour Judge Keleman, on 9 June 2006, dismissed the defendant’s Notice of Motion in which it sought an order that the proceedings be struck out or dismissed because they were an abuse of process. Mr Kerr submits that the proposed amendment to the defence, if allowed, would give the defendant the opportunity to re-litigate the issue already determined by Judge Keleman, from which there has been no application made for leave to appeal.

6 The defendant does not dispute that the issues which it proposes to plead in paragraph 27 of the proposed amended defence are no different from the issues raised before his Honour Judge Keleman: see paragraphs 5 and 8 of Mr Covington’s affidavit sworn 17 October 2006.

7 It is also clear from the transcript of the application before Judge Keleman on 9 June 2006 that his Honour enquired of counsel for the defendant on that occasion whether or not it would be more appropriate for the issue before his Honour to be determined by the trial Judge, a course urged upon his Honour by counsel for the plaintiff (T 19.20-58 9/6/06). Counsel for the defendant, however, submitted that the application was a “stand alone” application and that Keleman DCJ had all the evidence before him required to make a determination as to whether or not the plaintiffs’ claim constituted an abuse of process (see T 20 1-46 9/6/06).

8 Judge Keleman delivered an ex tempore judgment dismissing the defendant’s application. His Honour stated (Judgment T 2.4):

“The High Court and Court of Appeal authorities indicate that where a claim of abuse of process is made the power to stay or dismiss proceedings is discretionary and will only be exercised in exceptional circumstances.”

9 His Honour did not refer to Brimson v Rocla Concrete Pipes Ltd (1982) 2NSWLR 937, but counsel for the defendant, Mr Curtin, submitted that his Honour must have had it in mind because of these remarks. However, Judge Keleman determined that the Court was not satisfied these proceedings were an attempt to re-litigate issues which had been earlier decided; nor were the proceedings a collateral attack on this Court’s judgment in the earlier proceedings between the plaintiffs and Chubb.

10 Brimson’s case concerned the application of part 13 rule 5 of the Supreme Court Rules, the terms of which are not materially different from part 13 rule 13.4 of the Uniform Civil Procedure Rules. In that case Cross J said (944G):

“Where the Court is asked to reject a plaintiff’s case, either under its statutory rules or its inherent jurisdiction, the fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial; and applications to deprive him of that right will succeed only in the clearest of cases. True, the Court will not look merely at the suggested weakness of the plaintiff’s case but – though to a less extent – at the suggested strength of the defendant’s case; and, true, forensic argument and subsequent judicial reflection are not necessarily inconsistent with a firm conclusion that the cause of action should not be allowed to proceed. But fatal defects in the plaintiff’s case must be very clear before the Court will intervene in this fashion.”

11 Cross J concluded that the plaintiff’s claim in that case may or may not run into considerable difficulties at the trial but because it was not clearly or demonstrably unarguable the defendant’s application should be dismissed.

12 Putting it simplistically, Mr Curtin submitted that all Judge Keleman did was to follow Brimson’s case (because his Honour had referred to there being no “exceptional circumstances”) and thereby determined that the plaintiffs’ case was not so weak that it ought be dismissed summarily under part 13 rule 4. It followed, therefore, that because the plaintiffs were entitled to a trial of their case, that the defendant was entitled to obtain leave to amend so that the matters relied on in paragraph 27 of the proposed amended defence could be finally determined at trial on their merits.

13 Mr Curtin put it that the position was analogous to cases dealing with defences under the Limitation Act 1969, in which defendants have been unsuccessful in arguing on an interlocutory basis that a cause of action is futile because it is statute barred, but have been allowed to have such a defence determined at trial on its merits. In my opinion, limitation cases are in a category of their own and usually they are not determined in advance of the hearing.

14 In contending that the application for leave to amend the defence was nothing more than an application to revisit what Keleman DCJ had already decided, counsel for the plaintiffs relied on Wentworth v Rogers (unreported NSW SC 28 April 1995) and Haines v ABC (1995) 43 NSWLR 404 at 410 B and 411 C-F.

15 In Haines’ case Hunt J stated at 410B:

“There is nevertheless a line of authority to which I have been referred which demonstrates that, notwithstanding the absence of any issue estoppel, a party’s attempt to re-litigate against another party an issue which he has already lost may amount to an abuse of process.”

16 Hunt J then set out the cases to which he was referring. In my opinion, they are of more assistance to the Court on this application than the authorities relied on by counsel for the defendant.

17 I accept the submissions made by counsel for the plaintiff. Keleman DCJ decided that the plaintiffs’ claim did not amount to an abuse of the Court’s process. His Honour did so in the context of evidence which was admitted and submissions that were made consistently with those matters which are set out in paragraph 27 of the proposed amended defence. Nothing has changed since Keleman DCJ delivered his judgment: there is no additional evidence before this Court nor evidence of any change in material circumstances.

18 By seeking leave to amend, the defendant is seeking to put in issue the very matter which has already been determined against it by Keleman DCJ. Brimson’s case is not to the point because Keleman DCJ was not deciding whether or not the plaintiffs had such a weak case that it ought be dismissed: rather, his Honour was called upon by the defendant, in lieu of having the matter dealt with at trial, to determine whether the plaintiffs’ claim was an abuse of process by virtue of the identical matter now sought to be pleaded in paragraph 27 of the proposed amended defence. It would be unjust to allow the defendant to have the identical question determined a second time in circumstances where it already has had “a full and fair opportunity” in showing that these proceedings are an abuse of process (Haines at 412 F).

19 Accordingly, I refuse the defendant’s application for leave to amend.

20 The orders of the Court are:

1. Defendant’s Notice of Motion filed on 1 September 2006 is dismissed.

2. Order the Defendant to pay the Plaintiffs’ costs of the Notice of Motion, such costs to be agreed or assessed on the ordinary basis and, upon agreement or assessment, to be paid within one month.

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