Skevington v Morrison - [2001] WADC 253

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: SKEVINGTON -v- MORRISON & ANOR [2001] WADC 253

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 12 SEPTEMBER 2001& 11 OCTOBER 2001

DELIVERED : 5 NOVEMBER 2001

FILE NO/S: CIV 1971 of 2000

BETWEEN: WENDY SKEVINGTON
Plaintiff
AND
IAN MORRISON
First Defendant
DCH LEGAL GROUP
Second Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to amend defence - Action for damages against legal practitioners - Allegation of error made by trial Judge in the Supreme Court of Western Australia - Application to amend to plead - Res judicata - Issue estoppel - Abuse of process - Precedent

Legislation:

Nil

Result:

Applications successful

Representation:

Counsel:

Plaintiff:     Mr I N Wilson
First Defendant             :     Mr D M McKenna
Second Defendant         :     Mr G J Pynt

Solicitors:

Plaintiff:     Ian Wilson
First Defendant             :     Jackson McDonald
Second Defendant         :     Pynt McKay

Case(s) referred to in judgment(s):

Port of Melbourne Authority v Anshun Pty Ltd [1981] 147 CLR 589

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: In the action the plaintiff seeks to recover damages against each of the defendants for loss as a consequence of breach of contract and/or breach of duty of care. It is alleged that the loss arose as a result of the conduct of the plaintiff's litigation in the Supreme Court of Western Australia. The defendants conducted that case for the plaintiff.
The particulars of the negligence of the defendants alleged by the plaintiff revolve around a failure to apprehend the impact of statutory limit upon the bringing of the action and the lack of standing of the plaintiff to claim the relief sought. Those particulars draw upon the relevant parts of the reasons given for the adverse decision on each point.
As the defences presently stand the defendants deny that they breached the duty they owed to the plaintiff. In the case of the second defendants, at par 40 they rely upon advice provided by the first defendant but at par 40(e) they allege as follows:
"It would not have been obvious to a reasonably prudent solicitor with the knowledge that the second defendant had of the Supreme Court proceedings, that there was a risk the plaintiff's claims against the husband and the husband's parents were or might be statute barred."
Each of the defendants now seeks leave to amend their defences in order to raise allegations of material fact that the trial Judge was wrong to determine that the plaintiff's claims were statute barred and that the plaintiff had no standing to claim the relief sought by her.
The onus is upon the applicants. That said, the court ought to be circumspect in interfering with the freedom enjoyed by parties to plead as they wish. It is my understanding that principle would preclude the plaintiff from bringing an application to strike out the amendments if leave was granted. In such an application the onus would be on the plaintiff. Thus whilst in these applications the onus is upon the applicants it is appropriate to consider that as to the proposed pleading the scope of examination should be determined by the focus of the plaintiff’s attack.
There is no particular prejudice asserted by the plaintiff which would be visited upon her as a consequence of the applications having been made at this stage in the action. It is not sufficiently late in the action that I have any concerns that a grant of leave would have such an impact as would justify a refusal of the applications.
During the course of the first defendant’s application an issue was raised as to the sufficiency of the evidence in support of the proposed amendment. The plaintiff was able to demonstrate that the affidavit of Stewart Muirhead at its relevant point was insufficient. Although the plaintiff has satisfied me that the deponent provides no useful evidence, there is sufficient information before me in the form of the reasons for decision in the original action to satisfy me that the errors complained of were at least features of the reasons for decision given in the case. Those reasons disclose that the relevant issues were considered by the trial Judge to be live. It is fundamental to the process of pleading that a party will only raise an allegation of material fact if at trial he will adduce evidence to seek to establish that fact. There is sufficient to satisfy me that the defendants consider that they have some evidence upon which they would seek to establish that the determinations made by the trial were wrong.
The focus of the plaintiff’s attack on the proposed amendments was whether the allegations of error are justiciable in this action.
The first consideration is whether for the purposes of this action the determination made by the trial judge engages either the doctrine res judicata or the mechanism of issue estoppel. The success of such engagement would depend upon an assessment of the nature of the relationship between the parties and thereby the interests represented in the action.
It is fundamental that the determination of a court binds only the interests represented in the action before it. The nature of the relationship between these parties is not such as would constitute the defendants as privies of the plaintiff. In my opinion it would be open for the court to consider that until this litigation was commenced the defendants had no interest in the determinations and no standing to contest them.
Furthermore the context in which the issues are sought to be raised is significantly different from that in which they emerged at trial. In the action the plaintiff claimed an equitable entitlement. The relevant adverse findings resulted in the dismissal of that claim. In this case the plaintiff has pleaded allegations of breach of duty which relate to the presentation of the case upon which those findings were made. The course of events which generated the first determination was utterly different to that which generated the second.
The second consideration relied upon in opposition to the application was abuse of process. To the extent that consideration of that prospect raises covers additional ground, it is difficult to discern that the proposed pleading could constitute an abuse of process simply because it sought to assert error. Otherwise, it is not a case where the defendants seek to have inappropriate resort to the processes of the court; they simply seek to raise allegations in the context of an action commenced by the plaintiff.
The prospect that the proposed amendment may constitute an abuse of process may be compounded by what is often described as the principle in Port of Melbourne Authority v Anshun Pty Ltd [1981] 147 CLR 589. That case stands for the proposition that the failure to raise a contractual entitlement in prior litigation was such as to preclude reliance upon it in subsequent litigation between the same parties. In my opinion that determination has no application to this case.
The plaintiff also raised for consideration the doctrine of precedent. The application of that doctrine depends upon the consideration of the status of this court relative to that of the Supreme Court.
In my opinion it would be wrong to consider that relative to this court, the Supreme Court as constituted by the trial Judge is a superior court. In the instance of appeal from a judge in either jurisdiction the course of appeal is to the Full Court of the Supreme Court. In contrast with determinations of the Full Court of the Supreme Court of Western Australia, the decision of a judge of that Court is no more than persuasive. It follows that the doctrine of precedent has no application.
On the considerations addressed by the plaintiff I am not satisfied that it would be appropriate to refuse leave to amend in the terms proposed.