Simonsen v Legge
[2010] WASCA 239
•22 DECEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SIMONSEN -v- LEGGE [2010] WASCA 239
CORAM: PULLIN JA
NEWNES JA
MURPHY JA
HEARD: 9 DECEMBER 2010
DELIVERED : 22 DECEMBER 2010
FILE NO/S: CACV 134 of 2009
BETWEEN: MARK JEFFREY SIMONSEN
Appellant
AND
GEOFFREY SPENCER LEGGE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SWEENEY DCJ
File No :APP 52 of 2009
Catchwords:
Issue estoppel - Anshun estoppel
Legislation:
Partnership Act 1895 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: In person
Solicitors:
Appellant: In person
Respondent: In person
Case(s) referred to in judgment(s):
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Simonsen v Legge [2010] WASCA 238
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269
JUDGMENT OF THE COURT:
Introduction
These reasons should be read with the court's reasons in Simonsen v Legge [2010] WASCA 238.
On 23 December 2008, the appellant commenced proceedings in the Magistrates Court in which he alleged, in effect, that:
(a)up to August 2001, the respondent and one, Bell, were equal shareholders in a company called JJG Nominees Pty Ltd (the company);
(b)the company owned a business which it operated under the name ADS Automation;
(c)in about July 2001, the appellant orally agreed with the respondent and Bell that he would pay $48,000 as a premium for entering into a fixed term partnership of three years with the respondent and Bell;
(d)there were terms of the oral agreement to the effect that the appellant would be appointed a director of the company and be issued with one share in the company;
(e)the appellant paid $48,000 by way of a premium, within the meaning of s 53 of the Partnership Act 1895 (WA), for entering into the partnership;
(f)the partnership was effectively dissolved upon the liquidation of the company in 2003; and
(g)the appellant was entitled to recover the sum of $48,000 from the respondent on the basis that the respondent was severally liable for the whole of the amount of the premium.
The appellant obtained default judgment against the respondent, which was set aside on 10 June 2009.
On 24 June 2009, the appellant applied for summary judgment against the respondent. The respondent defended the application on the basis, inter alia, in effect, that the appellant's claim was the 'same claim' as the one determined in the District Court by Mazza DCJ (as his Honour then was) on 24 November 2006. (We will refer to the proceedings by the appellant against the respondent determined by Mazza DCJ on 24 November 2006 as the 'original proceedings'.)
At the hearing of the summary judgment application, the magistrate dismissed the appellant's application for summary judgment and went on to dismiss the whole of the appellant's action on the basis, in effect, that the judgment in the original proceedings had created an issue estoppel which precluded the appellant from maintaining the claims alleged in the Magistrates Court.
On 4 August 2009, the appellant lodged a notice of appeal in the District Court in which he appealed the decision by the magistrate to dismiss his action. The matter was heard before her Honour Judge Sweeney DCJ on 2 November 2009. Her Honour dismissed the appeal.
The appellant appeals the decision of Sweeney DCJ.
The judge's reasons
The primary judge referred to the well‑known statements concerning issue estoppel by Dixon J in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 531 ‑ 532, and to the principles (which for ease of reference, we will call 'Anshun estoppel') enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.
The judge held that in the original proceedings Mazza DCJ had found that:
(a)the contract between the appellant on the one hand, and the respondent on the other, in July 2001, was an agreement by which the appellant would pay $48,000 in consideration for being made a director of the company and an equal shareholder in the company (the 'share acquisition agreement'); and
(b)the appellant paid $48,000 pursuant to the share acquisition agreement.
Her Honour also held, in effect, that those findings by Mazza DCJ provided the legal foundation for, and were matters which it was necessary for Mazza DCJ to decide, and which his Honour did decide, in holding the respondent liable to the appellant for breach of contract in the original proceedings. Her Honour held that, in consequence, an issue estoppel precluded the appellant from contending that there was an oral contract with the respondent in July 2001 to join a partnership for which the sum of $48,000 was paid by way of a premium.
Her Honour also held that even if there were not an issue estoppel arising in respect of such matters, the appellant would be precluded by Anshun estoppel from seeking to litigate, two years after the determination of the original proceedings, and seven years after the events in question, a fresh allegation that the true nature of the arrangements between the appellant and the respondent involved the appellant entering into a partnership with the respondent, and paying the $48,000 as a premium upon entering into the partnership.
The grounds of appeal and disposition of the appeal
At the outset, it should be noted that in the proceedings below and the original proceedings, the appellant was suing the respondent, in contract, the contract was allegedly oral, and made in July 2001, the claim was in connexion with an investment, the investment was made in connexion with the same company, in the same sum of $48,000, the company carried on the same business, and the claimed loss included the same $48,000 payment.
The first ground of appeal is to the effect that the judge erred in fact and in law in finding that an issue estoppel arose when she should have found that an estoppel only arises in those cases where parties are 'well funded and well represented', and that the principle of issue estoppel does not apply to self‑represented litigants. This ground has no merit. The doctrine of issue estoppel applies to all litigation, including whether the parties are represented or not. See Waddington v Silver Chain Nursing Association (1998) 20 WAR 269, 280 ‑ 281. Moreover, in the original proceedings, and in the court below, both parties were unrepresented.
The second ground of appeal alleges, in effect, that the judge erred in fact and in law in penalising the appellant for being self‑represented, as a result of which the appellant has been denied 'procedural fairness and equity for due consideration at law and for the evidence to be tested on its merits'. This ground has no merit. It is clear that the appellant has not been penalised. The judge has applied, in our view properly, the principles of issue estoppel and Anshun estoppel as they applied to the proceedings below.
The third ground alleges that the judge erred in fact in finding that the appellant sued on the same cause of action in the proceedings below as he did in the original proceedings, and that the judge also erred in finding that an issue estoppel existed. As to the former, her Honour expressly noted that it was a different cause of action sued upon and that, accordingly, no question of res judicata arose. As to the second matter, in our view, the judge correctly applied the principles of issue estoppel.
The fourth ground alleges, in effect, that the judge erred in fact by concluding that the appellant was precluded from his action in the court below by reason of an Anshun estoppel when his evidence in the court below was not contested, that the respondent had previously admitted that there was a partnership, and that the cheque was paid in the name of ADS Automation and not in the name of the company. None of these matters alter the characterisation of the proceedings in the court below and the application of the doctrines of issue estoppel or Anshun estoppel. This ground has no merit.
The fifth ground alleges, in effect, that the judge erred in law in finding (so it is alleged) that the Partnership Act 1895 (WA) was an exhaustive code covering the formation and dissolution of partnerships, when 'the courts can look to the common law as well'. In our view, the judge did not make the finding asserted and, in any event, it is irrelevant to the bases upon which the primary judge disposed of the proceedings below. This ground has no merit.
The sixth ground of appeal alleges, in effect, that the judge erred in fact and in law in applying the principles in relation to Anshun estoppel and that 'there is nothing at common law or in the rules of the court that say I have to join all my causes of action in the one proceeding'. This ground does not correctly reflect the principles of Anshun estoppel. It has no merit.
The seventh ground alleges, in effect, that the judge erred in fact in characterising the proceedings in the court below as having features which would attract the doctrines of issue estoppel and Anshun estoppel with respect to the original proceedings. In our view, the ground has no merit. The findings made by Mazza DCJ to which the primary judge referred did, in our view, constitute features upon which the doctrine of issue estoppel properly rested and, moreover, any claim in contract in relation to the investment of $48,000 beyond or different from the one made in the original proceedings, ought to have been included in those proceedings and not made the subject of a separate claim two years after the appellant had succeeded in establishing liability in his original claim in contract.
The eighth ground alleges, in effect, that the judge erred in failing to find that a 'common business venture' may be included 'outside of the company vehicle' and that a 'directorship and partnership are not mutually exclusive'. We see no merit in this ground. In the circumstances, the primary judge did not err in treating the appellant's claim in the proceedings below as involving matters which had been necessarily determined in the original proceedings, or which ought to have been raised in the original proceedings. Her Honour was not required to deal with the proposition, in the abstract, about whether parties may use a corporate vehicle to carry out a joint venture.
Conclusion
We would dismiss the appeal.
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