Scott, W.R. v Beneficial Finance Corporation Ltd

[1994] FCA 395

3 9 c ~

JUDGMENT NO. .....rn......r

AH APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BFlWBEN	8	WALTER ROBERT SCOTT
Appellant

2 2 JUN 1994

AM):  BENEFICIAL FINANCE

AUBTRKUI m-U CORPORATION LTD
Respondent

C O M x WILCOX, EIlOFELD and BgAXLEY JJ

PLacBx SYDNEY

MTE:  31 IUY 1994

TBE COURT: The Court is indebted to counsel for the applicant for the full and careful argument put in support of the application for leave to appeal, but we are of the view that leave should be refused. It seems to us inappropriate on this occasion to express any view as to whether the Anshun principle applies to the failure of a person to file a cross- claim in earlier proceedings. It is clear that the test to be applied in relation to the principle is whether it was unreaeonable of that person not to plead a particular defence or, if the principle applies to cross-claims, a particular

cross-claim.

That inevitably involves a court in the task of looking at the history of the earlier proceeding and the issues that were there tendered. That has been done on this occaeion, with the assistance of counsel, and all members of the Court have reached the view that it cannot be said that the learned primary Judge erred in principle in coming to the conclueion, as he did at p.15 of his reasons for judgment, that it was not unreasonable for Mr Scott not to plead a cross-claim in the Supreme Court proceedings. We find it unnecessary to set out the history of the Supreme Court proceedings. It is recounted in counsel's submissions and has been discussed in argument.

The other aspect of the case raised by counsel was whether there was an issue estoppel. There is always a problem in applying the principles of issue estoppel to a consent judgment. We accept that the principle does apply to a consent judgment, but it is critical to identify the issues. For the purpose of the law of issue estoppel, the issues cannot go beyond those tendered by the pleadings.

If a party is precluded by an order of the court from raising a particular matter as an issue, there cannot be an issue estoppel against that party. Ex hypothesi the issue did not arise. Accordingly, it has not been demonstrated that the judgment of the primary Judge is wrong. That was a judgment relating to practice and procedure. Unless an applicant demonstrates an error in principle or law, it seems to us that it is inappropriate to grant leave to appeal. Accordingly, the application for leave is refused with costs.

I certify that this and the preceding two (2) pages
are a true copy of the Reasons for Judgment

of the Honourable Justice Wilcox.

Associate :	F~---.SL~,&~
I
Dated:	31 May 1994
Counsel for the Applicant:	P M Wood
Solicitors for the Applicant:	Mallesons Stephen Jaques
Counsel for the Respondent:	J J Garnsey QC and J T McGrath
Solicitor for the Respondent:	John Dowling
Date of hearing:	31 May 1994