Stoikoudis v ASC AWD Shipbuilder Pty Ltd - [2023] SADC 144

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master)
STOIKOUDIS v ASC AWD SHIPBUILDER PTY LTD
[2023] SADC 144
Judgment of his Honour Auxiliary Judge Costello
26 October 2023
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA
Appeal from a Master's decision dismissing a second action as an abuse of process - original application sought damages for negligence and/or breach of statutory duty - original action commenced out of time - applicant in original action sued the wrong respondent - solicitors for the respondent informed applicant's solicitors of the identity of the correct respondent - original action amended by consent to plead correct respondent - applicant then instituted a second action in the same terms as the original action but seeking an extension of time relying on ascertainment of the true identity of the respondent as a material fact - Master dismissed the second action as an abuse of process.
Held:
1. Appeal dismissed.
District Court Act 1991 (SA); Uniform Civil Rules 2020 (SA); Limitation of Actions Act 1936 (SA), referred to.
Wade v Australian Railway Historical Society (SA Division) t/as Steamranger (2000) 77 SASR 221; PNJ v R (2009) 252 ALR 612; Attorney-General v Kowalski [2014] SASC 1; Eckert v National Australia Bank (1997) 191 LSJS 221; Williams v Spautz (1992)147 CLR 509, considered.

STOIKOUDIS v ASC AWD SHIPBUILDER PTY LTD
[2023] SADC 144

This is an appeal pursuant to s 43(2)(a) of the District Court Act 1991 (SA) (“the Act”) and r 212.7 of the Uniform Civil Rules 2020 (SA) (“UCR”), against a decision of a Master of the District Court. In his appeal, the appellant challenges various orders made by the learned Master, namely:
1. The order dismissing the Action[1] as an abuse of process.
2. The order dismissing the application in FDN 10.[2]
3. The award of costs of Action CIV-22-002970 to the respondent.
[1] The Action is an action (CIV-22-002970) instituted by the appellant in 2022 (“the 2022 action”) seeking inter alia an extension of time.
[2] An application seeking consolidation of the action instituted in 2021 (“the 2021 action) with the 2022 action.
In support of his appeal the appellant relies on the following grounds:[3]
1.The learned Master erred in finding that:
a. the reasoning of Doyle CJ in Eckert v National Australia Bank Ltd (1997) 191 LSJS 221 applied mutatis mutandis to the situation before him (Reasons 77); and
b. that the reasoning in Eckert was enough to warrant the orders sought in FDN 5 (Reasons 79); and in doing so failed to consider the factual circumstances of the case before him as distinct from those in Eckert.
2. The learned Master erred in finding that it was an abuse of process using information gained in the 2021 Action for a collateral advantage in the 2022 Action (Reasons 84, 85 and 104) and in doing so has misinterpreted what is meant by a collateral advantage.
3. The learned Master erred in failing to consider whether the respondent would suffer oppression or injustice if the 2022 proceeding was permitted to proceed and thus failed to consider the orders sought by the applicant in FDN 10 as ameliorating any oppression or injustice.
4. The learned Master erred in finding that there was a pleading issue in the 2022 Action (Reasons 93) and by inference found that the pleading did not disclose a new material fact (Reasons 94 – 99).
5. The learned Master erred in finding that the Action was an abuse of process in circumstances where it contained an arguable ground for an extension of time (a basis upon which he proceeded to determine the application (Reasons 50)) and which could not be pleaded in the 2021 action (which he accepted (Reasons 56)).
[3] Notice of appeal (FDN 1).
In terms of the disposition of the appeal, the appellant asks that the appeal be allowed, the aforementioned orders set aside and seeks other consequential orders.
For its part, the respondent has filed a Notice of Alternative Contention in which it agrees with the learned Master’s decision, dismissing the appellant’s action as an abuse of process, but says that if the decision contains error:[4]
[4]    Notice of Alternative Contention (FDN 7), paragraphs 1 – 2.5 inclusive.
1. Any such error does not vitiate the outcome and orders dismissing the 2022 Action.
2. That [the] outcome and those orders should be upheld for the reasons argued in FDN 07 and 12 of the 2022 Action to the effect:
2.1.    The Respondent was incorporated into the 2021 Action by consent orders for substitution taking effect at the date of issue of the 2021 Action, and thus:
2.1(a) for the purposes of the 2021 Action, taking effect at 23 April 2021, more than 12 months before the institution of the 2022 Action, and
2.1(b) the 2022 Action is a duplicate proceeding as against the Respondent,
2.1(c) the 2022 Action prejudices the Respondent, inter alia, by obliging the Respondent to defend two separate actions with the same cause of action.
2.2. The effect of the application for an extension of time in the 2022 Action is to "bootstrap" the Appellant into an extension of time, contrary to and defeating the purpose and effect of section 48 of the Limitation of Actions Act 1936 (SA) and enabling the Appellant to bypass the deficiencies of his claim for an extension of time in the 2021 Action.
2.2(a) The length of delay in bringing the 2021 Action is excessive (4 years and approximately 7 months from the date of the incident) in the circumstances given that the Appellant has had access to legal advice;
2.2(b) The Appellant has failed to provide any or adequate explanation for the delay in bringing the 2021 Action;
2.2(c) The Respondent will be prejudiced in the defence of both actions if the actions are allowed to proceed due to difficulty in obtaining or the availability of evidence due to the passage of time; and
2.2(d) The conduct of the Respondent in the litigation has been exemplary.
2.3.    To use the identity and the consensual substitution of the Respondent in the 2021 Action as a ground for an extension of time in the 2022 Action is an abuse of the procedural rules of the Court in an attempt to obtain the forensic and legal benefit of an extension of time, and is an improper purpose.
2.4.    It cannot be just to grant the extension of time sought in the 2022 Action, and that Action is accordingly foredoomed to fail.
2.5.    The 2022 Action is an abuse of process.
Background to the appeal
In his reasons for decision the learned Master has set out, in the most comprehensive manner, the background to the application and, in turn, to this appeal. I cannot improve on his analysis and gratefully adopt it. His Honour said:[5]
[5] Reasons for Decision of Master Blumberg delivered 28 November 2022, Decision No. 19 of 2022, [1]-[32].
These reasons relate to an interlocutory application, filed on behalf of the respondent, in FDN 5 (“the application”) in this Action. The material part of the application is set out in paragraphs 2, 3 and 4 of FDN 5:
2.    That the Court grant judgment dismissing this action on the ground that it is an abuse of the process of the Court.
3.    In the alternative, that the Court strike out all of the Claim as an abuse of the process of the Court.
4.    In the further alternative, that the Court strike out paragraphs 26 to 30 (inclusive) and 31.9 of the Statement of Claim.
The application takes context from a related action in CIV-21-004005 (“the 2021 Action”).
The identity of the applicant is the same in the 2021 Action as in this Action.
In FDN 18, in the 2021 Action, the applicant seeks an order that that proceeding be consolidated with this proceeding (CIV-22-002970) “into a single proceeding”.
In this Action, CIV-22-002970 (“the 2022 Action”), the applicant also seeks an order, in FDN 10, that this proceeding be consolidated with the 2021 Action “into a single proceeding”.
The way in which I address the application in the 2022 Action renders the applications in FDN 18 in the 2021 Action and FDN 10 in this Action otiose. Therefore, I do not need to address those applications in any detail. I will advert to those applications, in brief, at the conclusion of these reasons.
Background
The applicant in this case seeks damages for personal injury which is alleged to have occurred on 6 September 2016 by reason of the conduct of the respondent (“the incident”).
The core factual circumstances are not material. For all intents and purposes they are the same in the 2021 Action as pleaded in the 2022 Action. In broad terms, the applicant asserts that that incident occurred by reason of the negligence and/or breach of statutory duty of the respondent.
The applicant issued proceedings on 23 April 2021, in the 2021 Action, against two respondents: ASC Pty Ltd (“ASC”) and Grandstand Scaffold Services Pty Ltd.
The claim in the 2021 Action sought an extension of time pursuant to s 48 of the Limitation of Actions Act 1936 (“LOAA”). The 2021 Action was instituted more than three years after the incident on 6 September 2016. The relevant limitations period is prescribed in s 36 of the LOAA. The 2021 Action was out of time.
The grounds upon which an extension of time was sought in the 2021 Action are specified in paragraphs 29-36 of the statement of claim in FDN 6. In broad terms, the grounds rely on medical issues and evidence as a basis for the extension of time.
As it happened, the applicant had sued the wrong entity because ASC was not the correct respondent.
The circumstances are, in part, revealed in the affidavit of Mr Nicholson, the solicitor for the applicant, contained in FDN 11 in the 2022 Action at paragraphs 3‑8:
3.    On 23 April 2021, proceedings were issued out of time against ASC Pty Ltd and Grandstand Scaffold Services Pty Ltd (“the 2021 action”). An extension of time was sought on the basis of new material facts constituted by medical evidence.
4.    On 8 June 2021, I spoke with Mr Richard Smith of HWL Ebsworth, solicitor for ASC AWD Shipbuilder Pty Ltd, who advised me that ASC AWD Shipbuilder Pty Ltd was the proper entity to be named (rather than ASC Pty Ltd) as First Respondent in the 2021 action.
5.    On 12 October 2021, by consent, ASC AWD Shipbuilder Pty Ltd was substituted as First Respondent in the 2021 action.
6.    On 22 March 2022, a revised Claim was filed reflecting the substitution of ASC AWD Shipbuilder Pty Ltd as First Respondent in the 2021 action.
7.    On 21 March 2022, proceedings were issued out of time against ASC AWD Shipbuilder Pty Ltd (“the 2022 action”). An extension of time was sought on the basis of a new material fact constituted by establishing the identity of the correct Respondent.
8.    Any inconvenience caused to the parties or to this Honourable Court by virtue of separate proceedings arising out of the same cause of action can be remedied by way of an order consolidating the separate proceedings.
Further context to the predicament is set out in another affidavit of Mr Nicholson. That is in FDN 5 in the 2021 Action. It is important to set out paragraphs 4-10 of the affidavit in FDN 5 in the 2021 Action which was sworn on 26 August 2021:
4.    The within proceedings in relation to the subject incident were issued against the Respondents, in which ASC is the First Respondent, on 23 April 2021.
5.    On 8 June 2021, I spoke with Mr Richard Smith of HWL Ebsworth, solicitor for ASC AWD Shipbuilder Pty Ltd (ACN 112 123 181) (“ASC AWD”). Mr Smith advised me that ASC AWD was the proper entity to be named as the Second Respondent.
6.    On 11 June 2021, I wrote to Mr Smith and enquired as to whether his client consented to be substituted as First Respondent in the within proceedings. A copy of that letter is now produced, shown to me, marked “AN-1” and exhibited hereto.
7.    On 8 July 2021, I received an email from Mr Smith indicating his client’s consent to be substituted as First Respondent. A copy of that letter is now produced, shown to me, marked “AN-2” and exhibited hereto.
8.    On 2 August 2021, I wrote to Mr Chris Evans of Barry Nilsson Lawyers, solicitor for the Second Respondent, and enquired as to whether his client consented to ASC AWD being substituted as First Respondent in the within proceedings. A copy of that letter is now produced, shown to me, marked “AN-3” and exhibited hereto.
9.    On 26 August 2021, my office received an email from Mr Evans indicating that his client consented to the substitution of the First Respondent. A copy of that email is now produced, shown to me, marked “AN-4” and exhibited hereto.
10.    I therefore now seek Orders that ASC AWD be substituted as First Respondent in the within proceedings pursuant to Rules 22.1(1), 22.2(2) and 69.2(1) of the Uniform Civil Rules 2020 (SA).
The rules upon which Mr Nicholson relied in the last paragraph of that extract assume some importance as no written application was ever filed in regard to the change in corporate identity of the first respondent in the 2021 Action.
Subsequent to the filing of the affidavit in FDN 5, the 2021 Action was called on in court on 12 October 2021. The following orders were made on that day (FDN 6 in the 2021 Action):
1.    On the oral application of the applicant and in reliance on the affidavit in FDN5, I make an order substituting the identity of the first respondent with the entity ASC AWD Shipbuilder Pty Ltd (ACN 112 123 181).
2.    On or before 23/11/21 the applicant is to submit for the consideration of the respondents, a revised statement of claim which reflects the order in paragraph 1 and may contain consequential amendments including as regards the limitations issue.
3.    On or before 24/12/21 the respondents are to indicate to the solicitors for the applicant whether there is consent to the amendments and their date of operation.
4.    In the event that there is consent to the amendments then the applicant is to proceed via UCR 69.2(1)(a) to file and serve the amendments on or before 11/1/21.
5.    In the event that the respondents or one of them does not respond as envisaged in the preceding orders, takes no attitude to the amendments, or opposes the amendments then on or before 14/1/21 the applicant is to file and serve an application seeking leave of the Court pursuant to UCR 69.2(1)(b) made returnable for mention only to the next directions hearing whereupon it may be listed for subsequent argument.
[Emphasis Added]
Upon the oral application on 12 October 2021 the order made was, in the terms set out above, an order “substituting” the identity of the first respondent. At that stage, the date of operation of the substitution was left undetermined as appears from the last sentence of paragraph 3 of the fiat.
The affidavit of Mr Nicholson, as set out above, in paragraph 10, refers to rr 22.2(1), 22.2(2) and 69.2(1).
It is my view that the order made on 12 October 2021, could not have been made pursuant to the first two of those rules:
22.2—Substitution or addition of parties
(1)     If the interest or liability of a party the subject of a proceeding or appellate proceeding (the old party) passes to another person (the new party) during the proceeding, whether by assignment, transmission, devolution or otherwise, the Court may at any stage either—
(a)order the substitution of the new party for the old party on such conditions as the Court thinks fit; or
(b)order the addition of the new party (in addition to the old party) on such conditions as the Court thinks fit.
(2)     Unless the Court otherwise orders, a person may only be substituted or added as an applicant or appellant if the person consents to being so substituted or added.
…..
The terms of UCR 22.2(1) and 22.2(2), on their face, were not applicable to what occurred on 12 October 2021 in the 2021 Action. Rather, it is my view that the order made sits more comfortably with UCR 69.2(1):
69.2—Amendment by consent or with leave
(1)     A party may amend a Claim or pleading (including to introduce an additional party)—
(a)by consent; or
(b)with the leave of the Court.
…..
The applicant sought leave to file and serve a revised claim in the 2021 Action (FDN 7). Initially, that was contentious. The fiat of 18 January 2022, is as follows:
1.    Application in FDN7 listed for 1/2 day argument to commence at 10.30am on Friday 11/3/22.
2.    Given the order at paragraph 1 of the orders made on 12/10/21, I direct the Registry and ECMS to accept a notice of acting to be filed by HWL Ebsworth on behalf of the substituted first respondent.
3.    The substituted first respondent has leave to file and serve affidavit material on or before 15/2/22 in opposition to FDN7.
4.    On or before 28/2/22 the applicant to file and serve any affidavit material which is strictly in response to that referred to in the previous paragraph and a detailed outline of argument.
5.    On or before 7/3/22 the substituted first respondent is to file and serve a responding outline of argument.
6.    The parties are agreed, notwithstanding the fiat of 12/10/21, that Master Blumberg is not part heard in regard to FDN7.
7.    ….
As the argument date drew near, a significant order was made by Auxiliary Master Roder on 10 March 2022:
1.    By consent, argument listed for 11/3/22 is vacated.
2.    The applicant has leave to file and serve a revised claim and statement of claim pursuant to UCR69.2(1), on or before 31/3/22, and that the amendments relate back to the day upon which the claim was instituted pursuant to UCR69.2(3)(b).
…..
[Emphasis Added]
Thus, in that way, the order created a legal fiction.
The fiction was that the correct entity had been sued from the outset of the proceedings in the 2021 Action.
The orders made by Auxiliary Master Roder on 10 March 2022 were evidently made pursuant to UCR 69.2(1) because of the reference to that rule in the application before his Honour (FDN 7) and the express reference to UCR 69.2(3) in the orders so as to relate the substitution back to the date on which the 2021 Action was instituted.
On 22 March 2022, a revised form of the statement of claim was filed which, save for a typographical correction, maintained the existing grounds for an extension of time.
However, one day before that occurred, on 21 March 2022, the applicant filed this action – the 2022 Action.
This action, as is apparent, was brought against ASC AWD Shipbuilder Pty Ltd (“ASC AWD”).
The 2022 Action is brought solely against ASC AWD and is based on the same core facts, seeking damages based on the same cause of action, but relying on a different fact material for the purposes of s 48 of the LOAA.
The relevant passage of the statement of claim is in paragraphs 26-32:
26.    On 23 April 2021, the Applicant issued proceedings against ASC Pty Ltd and Grandstand Scaffolding Services Pty Ltd.
27.    On or around 14 May 2021, the Applicant by his solicitors attempted to serve the proceedings referred to in paragraph 26 herein on the solicitors for ASC Pty Ltd.
28.    On 8 June 2021, the solicitor for the Respondent advised that ASC AWD Shipbuilder Pty Ltd (ACN 112 123 181) was the correct entity against which the Applicant should bring his claim and not ASC Pty Ltd.
29.    On or around 22 October 2021, the Applicant was informed by his solicitor that ASC AWD Shipbuilder Pty Ltd (ACN 112 123 181) was the correct corporate entity against which to bring proceedings for the negligence and consequent injuries alleged herein against the Respondent.
30.    The facts pleaded in paragraphs 26-29 inclusive above form an essential element of the Applicant’s cause of action against the Respondent.
FACTS RELEVANT TO EXERCISE OF DISCRETION
31. Pursuant to section 48(3)(b) of the Limitation of Actions Act 1936 (SA), the Applicant pleads the following material facts as being relevant to the court exercising its discretion to grant an extension of time:
31.1The Respondent was aware that the Applicant suffered injury and the Respondent’s employee Stuart Double prepared an incident report and subsequently investigated the Incident.
31.2Broadspectrum provided the Respondent with updates in relation to the Applicant’s condition and work capacity.
31.3Broadspectrum provided the Respondent with the Applicant’s medical certificates.
31.4On 12 December 2016, the Applicant returned to work for the Respondent in an office-based role.
31.5In or around mid-2017, the Respondent was aware that the Applicant was unable to return to his previous role with the Respondent and that he was attempting to return to work in alternative and less demanding duties.
31.6The Applicant, as part of the process of making a claim pursuant to the RTW Act, has undergone medical and like examinations at the request of the Return to Work Corporation and his solicitors such that there are contemporaneous independent assessments of the Applicant’s injuries and treatment from the time of the Incident until the present time.
31.7Given the matters pleaded in paragraphs 31.1-31.6 inclusive herein, the Respondent will not suffer any prejudice in either its investigations into the occurrence of the Incident and its causes nor in determining the nature and extent of the Applicant’s injuries, his treatment and his recovery.
31.8The failure of the Applicant to issue proceedings with the 3-year time limit was due to the failure of his solicitors to seek instructions and to issue proceedings.
31.9The Applicant was not aware that ASC AWD Shipbuilder Pty Ltd (ACN 112 123 181) was the correct legal identity against which to bring a claim prior to the occurrence of the matters set out in paragraphs 26-30 inclusive herein.
32.    In the circumstances pleaded herein, it is just to grant the Applicant an extension of time to issue the within proceedings.
[Emphases Added]
The written outline of the respondent in FDN 7 undertakes a comparison between the pleadings in the 2021 Action and the 2022 Action. Apart from the basis for seeking the extension of time, the core facts are the same (albeit, the applicant has not named Grandstand Scaffold Services Pty Ltd as a second respondent in the 2022 Action). For present purposes, there is no material distinction - other than as outlined regarding the extension of time.
The application of the respondent in FDN 5, in essence, asserts that the 2022 Action is an abuse of process.
The law governing this appeal

Section 43(1) of the Act provides as follows:
43—Right of appeal
(1) A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
(2) The appeal lies—
…
(a) in the case of a judgment given by a Master or the Court constituted of a Master—to the Court constituted of a Judge;
…
UCR 212.7 provides as follows:
212.7—Jurisdiction of single Judge
Subject to any statute to the contrary and to rule 212.6, the jurisdiction of the District Court to hear and determine an appeal is to be exercised by a Judge.
UCR 217.10 provides as follows:
217.10—Hearing
(1) Subject to any statute to the contrary—
(a)     an appeal or review is to be by way of rehearing;
(b)     the Court may draw inferences from evidence adduced in the proceeding at first instance; and
(c)     the Court may hear further evidence in its discretion.
(2) The Court may, if it considers that it is in the interests of justice to do so, determine an appeal on the merits notwithstanding a failure of a party to raise or state properly a ground of appeal or alternative contention in the notice of appeal, notice of review or a notice of alternative contention.
No questions of impressions as to witnesses or weighing of evidence arise on this appeal. This court’s task is therefore confined to ascertaining whether the learned Master erred in law or misunderstood material facts in a manner which vitiates the outcome or the orders made. Nevertheless, as the appeal is not a hearing de novo, the appellate court “should not merely substitute its own view”, or otherwise interfere, unless satisfied that the trial judge fell into error.[6] (my underlining)
[6] Wade v Australian Railway Historical Society (SA Division) t/as Steamranger (2000) 77 SASR 221 at [38].
Test for abuse of process
The notion of what constitutes an abuse of process has been variously considered by the Courts over many years.
In PNJ v R[7] the High Court considered the concept of abuse of process and said:
It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics:
(a)the invoking of a court’s processes for an illegitimate or collateral purpose;
(b)the use of the court’s procedures would be unjustifiably oppressive to a party; or
(c)the use of the court’s procedures would bring the administration of justice into disrepute.
(Footnotes omitted)
[7] (2009) 252 ALR 612 at [3].
In this Court, Blue J in Attorney-General v Kowalski[8] said:
[8] [2014] SASC 1 at [195]-[197].
Superior Courts possess an inherent power to stay proceedings on grounds of abuse of process. Inferior courts may have implied power in similar terms. The categories of abuse of process are not closed.
The High Court has said that:
Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.
Established categories of abuse of process include:
1.proceedings brought for an improper purpose;
2.proceedings which are foredoomed to fail or brought without reasonable grounds;
3.proceedings brought in a court which is a clearly inappropriate forum;
4.proceedings in a second forum which duplicate proceedings pending in a first forum which cause oppression or injustice to the opponent and are not justified.
(Footnotes omitted)
This much may be accepted. On applications of this nature the respondent bears a heavy onus of demonstrating the existence of an abuse of process. Relevantly, for these purposes the respondent needs to show that the appellant’s predominant purpose in using the legal process has been one, other than that for which it is designed.[9]
[9] Williams v Spautz (1992) 174 CLR 509 at [42].
The parties’ respective contentions
I trust that I do no disrespect to the parties’ contentions if I paraphrase them in the following ways. In so doing, I wish to make it clear that I have had regard to all of their submissions, both written and oral. The fact that I have omitted to recite any particular facet of a party’s submission should not be understood to mean that I have either overlooked it or failed to have regard to it.
The appellant’s contentions
There is no prohibition in the Limitation of Actions Act 1936 (“LOAA”) in relying upon a new material fact of which the applicant becomes aware after proceedings have been issued. It is neither improper nor dishonest to do so.
In relying upon the decision of the former Chief Justice in Eckert v National Australia Bank,[10] the learned Master failed to consider, or at least pay sufficient regard to, the unusual facts which caused the Chief Justice there to find an abuse of process. Inter alia, these facts included a breach of a “Harman undertaking”, a factor absent in this case.
[10] (1997) 191 LSJS 221.
Even though the learned Master correctly identified various of the categories of abuse, he erred, in his treatment of that form of abuse of process which involves a duplication of proceedings, by failing to address whether the 2022 action, if permitted to survive, would cause oppression or injustice to the respondent or is otherwise not justified.
In the appellant’s submission there is no oppression or injustice to the respondent here because the various procedural steps, of filing a defence, discovery etc, remain available to the respondent. Furthermore, any inherent oppression or injustice in being forced to defend two actions could be overcome by consolidating the actions.
The institution of the 2022 action is not predominantly for an impermissible purpose but rather for a purpose that the law provides, namely to obtain an extension of time based upon a new material fact, being a remedy which cannot be granted in the 2021 proceedings.
In the appellant’s submission (and relying upon the court’s observations in Williams v Spautz) the existence of the appellant’s ultimate purpose in bringing the 2022 action, namely to obtain an extension of time and an order for damages, cannot constitute an abuse of process when that process is designed to bring about a result for which the law provides.
The notion of an improper or collateral purpose does not exist here. The predominant (and indeed the only) purpose for the 2022 action is to obtain an extension of time.
The matters raised by the respondent in its Notice of Alternative Contention relate to factors relevant to the exercise of a discretion and not to a decision as to whether to stay or strike out a proceeding, unless it can be concluded that, in the exercise of the discretion, the claim for extension is foredoomed to fail. This latter issue is a question for the trial judge.
The respondent’s contentions
In its submission the 2022 action is an abuse of process because, when compared to the 2021 action, it comprises the same cause(s) of action, the same facts, the same relief and is prosecuted by the same applicant against the same respondent. The only material difference between the actions is that, in the latter action, an extension of time is sought.
In its submission the 2022 action is simply a “clone” of the 2021 action.
Further, it is an abuse because it relies upon a disclosure by the respondent correcting the identity of the first respondent in the 2021 action. Once the correction was made it had a retrospective effect (by reason of the terms of a consent order) and came into force as and from the date of the issue of the 2021 action, namely 23 April 2021.
For all purposes (both legal and factual) the appellant thereby became aware of the corrected and true identity of the first respondent. In the result, the 2022 action sought to revive and invoke, as an issue between the parties, something that had ceased to be an issue in dispute between them. In those circumstances, there was no, and could not have been any, discrete material fact arising in the twelve months prior to the issue of the 2022 action.
The effect of the 2022 action, so it was submitted, was to attempt to undo the mechanism designed by the court and implemented by the parties, being a mechanism to ensure that the 2021 action could proceed in its terms to determine the substantive rights of the parties, including questions as to why the 2021 action was instituted out of time and as to whether a discretionary extension of time should be granted.
To now allow the 2022 action to survive would be to undo that mechanism and grant the appellant a gratuitous ground for extension because in its submission:[11]
[11] Respondent’s written submissions (FDN 9).
21.3(a) The 2022 Action exists solely to introduce a new basis for an extension of time. It does so by taking collateral advantage of interlocutory steps and process in the 2021 Action, which, as noted above, had the consensual effect of curing the underlying mistake, the discovery of which Mr Stoikoudis now seeks to rely for a collateral benefit.
21.3(b) The 2022 Action is unnecessary if, as Mr Stoikoudis contends in the 2021 Action, he is entitled to the benefit of the Court’s discretion to extend time for the reasons pleaded in that Action. It is only useful to him if those reasons are insufficient to bring about the exercise of the s. 48 discretion. In short, by the 2022 Action Mr Stoikoudis seeks an alternative avenue to an extension, relying on the fact or process of correction of his own error.
21.3(c) The Appellant’s error in naming the first Respondent in the 2021 proceedings having been cured by consent and by use of the processes of the Court, including engaging the duties of the solicitors concerned, the Court should not permit the use of fresh proceedings so as to create a fresh ground of extension. To do so is an obvious artificiality. It must also bring the administration of justice into disrepute: - effectively by the process for which the Appellant contends:
21.3.(c)(i) the out of time applicant is rewarded for an error in the preparation of proceedings,
21.3.(c)(ii) the interlocutory processes of the Court designed to cure technical error in the existing proceedings are used to confer a substantive benefit on the party in error.
21.3(d) The attempt to use the interlocutory process in the 2021 Action to generate a new material fact undermines the fundamental purpose and effect of the Limitation of Actions Act by giving an out of time litigant an interlocutory path to evade the consequences of delay. It is entirely contrary to the plain intention and ordinary effect of the ’12 month prior’ limitation in s. 48(3)(b)(i), and undermines the stability and proper working of the Court’s processes.
(Footnotes omitted)
In the respondent’s submission the 2022 action is brought for an illegitimate purpose in the sense that it is neither substantive nor meritorious. It is entirely technical and opportunistic.
It is also oppressive and unjust in the sense that it is inherently prejudicial to the respondent by requiring it to defend two actions and exacerbates that prejudice by causing a further delay in the conduct of the proceedings in circumstances where the respondent’s business operations have ceased.
To permit the 2022 action to proceed would also, for the aforementioned reasons, bring the administration of justice into disrepute.
Finally, it is not in the interests of justice to grant the appellant “an incidental extension of time” as a result of an error, of his own making in identifying the correct respondent, in circumstances where that error has been consensually rectified.
Discussion
The following issues fall for consideration and determination:
(i)Did the learned Master err in his reliance upon the reasoning of the Court in Eckert?
(ii)Did the learned Master err in his understanding of the phrase “collateral advantage”?
(iii)Did the learned Master err in concluding that the appellant’s actions, in using information provided by the respondent to ground another almost identical action in 2022, amounted to using the information for a collateral advantage?
(iv)Did the learned Master err in failing to consider, whether the respondent would suffer oppression or injustice if the 2022 action was permitted to proceed, and in turn, whether the orders sought by the appellant could ameliorate any oppression or injustice?
(v)Did the learned Master err in concluding that there was a pleading issue in the 2022 action in that the statement of claim did not disclose a new material fact?
Reliance on Eckert reasoning
In his oral submission Mr Lind submitted that the learned Master erred by approaching his consideration of the application upon the basis that he was “bound” by the decision in Eckert.
At first blush it might appear that Mr Lind is correct in this submission. At [66] of his reasons the learned Master said: “I consider that there is Supreme Court authority that determines the current application: Eckert v National Australia Bank Ltd.” (my underlining)
However, later in his reasons he couched his “reliance” on Eckert in different terms when he said at [77]: “I find the reasoning of Doyle CJ is applicable mutatis mutandis to the situation before me. I consider that it warrants a finding that the 2022 action is an abuse of process,” but then at [79] “Whilst I take the view that applying the reasoning in that case is enough to warrant the order sought in paragraph 2 of FDN 5, [being an order dismissing the 2022 action as an abuse of process] given that the case was not canvassed before me, I will continue to address FDN 5 on first principles…”
There is an apparent tension between the two positions which is difficult to reconcile.
Ultimately, I would understand the learned Master to be saying that, although the reasoning in Eckert was applicable and warranted a conclusion that the 2022 action was an abuse, he would not proceed to decide the matter on the basis that Eckert was binding and conclusive on the issue, because that decision had not been argued before him.
It was for that reason that he then went on to say that he would address the application to strike out the 2022 action “on first principles.”
Having said that, whether or not the learned Master approached his decision on the basis that he was “bound” by the decision in Eckert, it is a decision which clearly influenced the Master. It was relied upon by the respondent on this appeal and sought to be distinguished by the appellant. Regardless of the approach to and treatment of the decision by the learned Master it remains relevant to the issues I must decide.
First, I accept without hesitation that the facts in Eckert are different from those which arise in this case.
Some of those differences, to which my attention was drawn by Mr Lind, include the asserted breach by the Eckerts of a “Harman undertaking” and the abandonment of matters in one proceeding and the introduction of such matters in the other.
Nevertheless, I do not consider these differences to meaningfully detract from the force and effect of the principles articulated by Doyle CJ and in no way, in my view, do they undermine the Master’s reliance on those principles.
Furthermore, whilst I acknowledge the existence of differences in the factual scenarios between this case and Eckert, equally, there are factual circumstances that are relevantly similar. So much emerges from the following passage in the Chief Justice’s decision.
At [6] of his reasons Doyle CJ said:
Why, one wonders, is the present action being brought by the Eckerts since it claims no relief not claimed by the Eckerts by counterclaim? The answer appears from an affidavit filed by the Eckerts solicitor. He discloses a concern that the counterclaim in the 1994 action was out of time, a concern that materialised during 1995. An extension of time under the Limitation of Actions Act has been sought in respect of the counterclaim, but the material facts relied upon, or at least some of them, were ascertained after the counterclaim was filed. In that respect, the Eckerts face a problem, that is, because the Limitation of Actions Act appears to contemplate only reliance upon facts ascertained before the counterclaim was filed. (my underlining)
As can be seen, the Eckerts were seeking to issue a duplicate proceeding, where at least some of the material facts to be relied upon had arisen after the issue of the “first action”, in much the same way as the ascertainment of the identity of the first respondent here, has arisen after the issue of the 2021 action.
After the Eckerts ascertained these new material facts, they instituted a second action to which the respondent objected and which it sought to have struck out.
It was in this context that the Chief Justice made the following further observations at [10], which observations were relied upon by the learned Master, namely:[12]
I begin my attempts to unravel what is, to say the least, an unsatisfactory state of affairs, from a different point. It is, as the Bank argues, an abuse of process to bring two actions seeking the same relief. That is what the Eckerts have done. One action, surely, must be stayed. Ordinarily, the later set of proceedings, the action by the Eckerts, would be the proceedings to be stayed. But if I so order, the Eckerts will lose the opportunity to base their claim for an extension of time upon the documents received by their solicitor in March 1995 and seen by them or one of them in October 1995. They will not lose the ability to seek an extension of time based upon the matters already raised by their counterclaim, but there is an obvious difficulty in respect of those matters, and I have already referred to that difficulty.
[Emphases Added]
[12] Reasons for Decision of Master Blumberg, Decision No. 19 of 2022, at [75]-[76].
And later at [23]-[27]:
As I see it, the difficulty in what the Eckerts seek is that it enables them to take advantage, by means of an action which was prima facie an abuse of process, because it replicated their counterclaim, of a matter arising after their counterclaim was filed. They seek to escape the consequences of their own inexcusable, as it seems to me, failure to address the procedural problems until now.
….
My view is that the proceedings by the Eckerts are, in fact, no more than an attempt to rely upon facts discovered after their counterclaim to gain an extension of time for the claims raised by the counterclaim. To do so is not improper or dishonest, but on the other hand, I have touched on the obstacles to them doing so.
It is tempting to accede to the Eckerts application on the basis that they should be allowed to rely upon everything which might support their application for an extension of time. To my mind that's the only real point in their favour. But, assuming that the question of the use of discovered documents can be surmounted, to do what the Eckerts want is to countenance proceedings which are an abuse of process, and to countenance the concept already referred to of parties abandoning proceedings and starting again to take advantage of new material facts. To allow this has the potential to make proceedings unmanageable.
The law and practice relating to extension of time under the Limitation of Actions Act is, I consider, somewhat unsatisfactory and in some respects artificial, but to allow the Eckerts to do what they want to do would, while having an air of fairness about it, render practice in this area even more artificial.
[Emphases Added]
In my view the asserted differences between the facts in Eckert and this case are largely immaterial. In contrast, the factual circumstances upon which the aforementioned statements of principle by the Chief Justice are based, are not relevantly different.

In summary, the following may be distilled from Eckert, namely:
1.It can be an abuse of process for a litigant to bring two actions seeking the same relief.
2.A court should not give its imprimatur to the institution of a second proceeding that enables a party to take advantage, by means of a later action which is prima facie an abuse of process, (because it replicates a claim already instituted) of a matter arising after the original claim is filed.
3.The second action in such circumstances is no more than an attempt to rely on facts which were discovered after the first action to gain an extension of time for a claim raised by the first action.
Understood in this way, I agree with the learned Master’s conclusion that Doyle CJ’s reasoning is applicable and supports a conclusion that the 2022 action constitutes an abuse of process. As I have said, the material facts are not materially dissimilar and the statements of principle alluded to by Doyle CJ are of sufficiently wide application to cover the factual scenario under consideration here.
Although this conclusion is arguably sufficient to dispose of the appeal, it is appropriate to address the other issues raised in the appellant’s Notice.
I turn then to consider the next issue which arises, namely whether the learned Master misinterpreted the meaning of the phrase “collateral advantage.”
Meaning of collateral advantage
In considering the meaning of “collateral advantage,” in the context of an abuse of process, it’s important to set out in detail what the High Court had to say in Williams v Spautz[13] namely:
[13] [1992] HCA 34 at [34]-[36] and [39].
The observations of the Privy Council in King v Henderson and those of Isaacs J in Dowling, to which we referred earlier, represent an attempt to achieve a formulation which keeps the concept of abuse of process within reasonable bounds. To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event….
…the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor's favour.
It is otherwise when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers.
…
In his dissenting judgment in Goldsmith v Sperrings Ltd, Lord Denning MR was of the view that to issue a writ for an improper purpose constitutes without more an abuse of process. His Lordship appears to have regarded the cases on the tort of collateral abuse of process, including Grainger v Hill, as supporting this proposition. In this respect, Lord Denning may well have been incorrect. However, his Lordship was right in treating the comments of Lord Evershed MR, when he delivered the judgment of the Court of Appeal in Re Majory, as supporting the proposition. There, Lord Evershed referred to a general rule:
… that court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused. (my underlining)
In our view, that is a correct statement of the principle.
It may be seen from the foregoing observations that, with respect to this category of abuse of process, the High Court’s focus was directed towards the use of court proceedings for a purpose other than one for which they are properly designed and exist.
Applying these observations to the present case, the relevant Rules and the LOAA are designed and exist to assist a litigant, who becomes aware of a material fact in his or her case, to institute an action out of time and apply for an extension of time. There is nothing controversial about using the Rules for that purpose.
By way of illustration, it is uncontroversial that the Rules are designed and exist to enable a litigant to bring a claim against a respondent in negligence seeking damages. They are designed and exist for just such a purpose.
However, the Rules are not designed and do not exist to enable a litigant to bring multiple actions for negligence, arising out of the same incident, against the same respondents seeking damages. To do so would be an abuse of process.
In the same way, the fact that a litigant is able to utilise the Rules to bring an action seeking an extension of time, based upon an ascertainment of a material fact, does not mean that a litigant can utilise the Rules, to bring an action out of time based upon the ascertainment of a material fact, whatever be the nature of that fact, regardless of the circumstances of its ascertainment and of the purpose for which it is sought to be utilised.
In short, it is not particularly helpful to consider the propriety of the use of the ascertainment of a material fact divorced from the circumstances of its ascertainment and intended use.
Understood in this way, depending upon the nature of the material fact and the circumstances in which it is ascertained, an action which is instituted may or may not be for a purpose countenanced by the Rules.
Accordingly, and in order to understand why the learned Master took the view that the appellant was seeking to take a collateral advantage, it is necessary to understand not merely what was being sought by the appellant but also the procedural and factual matrix which gave rise to the institution of the 2022 action.
That matrix reveals that the 2021 action was instituted on 23 April 2021. As at that date, it was out of time, being over four and a half years after the date of the incident giving rise to the claim for damages for injuries suffered.
In that action the appellant sought an extension of time pursuant to s 48 of LOAA within which to institute proceedings. The material facts upon which he relied involved the ascertainment by the appellant of medical information in a series of medical reports.
Importantly, for these purposes the 2021 action named ASC Ltd, as the first respondent, being the occupier/controller of the workplace.
After the 2021 action was filed and served, on 8 June 2021, the respondent’s solicitors informed the appellant’s solicitors that the appropriate respondent was ASC AWD Shipbuilder Pty Ltd (“ASC AWD”) and not ASC. On 11 June 2021 the appellant’s solicitors asked the respondent’s solicitors to consent to ASC AWD being substituted for ASC as the proper entity to be the respondent. On 8 July 2021, the respondent’s solicitors consented to the substitution being made.
I pause to observe that the respondent’s solicitors’ conduct in so doing was entirely consistent with the overarching obligations, demanded of practitioners in litigation, in the UCR.[14]
[14] See UCR 3.1.
Armed with that indication of consent, in August 2021, the appellant’s solicitors then applied to the District Court for an order substituting ASC AWD as respondent.
On 12 October 2021 the learned Master made an order substituting “the identity of ASC with the entity ASC AWD”. His Honour made further orders requiring the appellant’s solicitors to submit, for the respondent’s solicitors’ consideration, a copy of the revised statement of claim reflecting inter alia the change in respondent.
He also directed the respondent to indicate, whether it consented to the amendments (including their date of operation) in the revised statement of claim, by 24 December 2021. For reasons which are not entirely clear, the revised statement of claim was not consented to and an argument on the issue was listed for hearing on 11 March 2022.
However, that argument did not take place because, on 10 March 2022, Auxiliary Master Roder made a further order giving leave to the appellant to file and serve a revised claim and statement of claim pursuant to UCR 69.2(1) and ordered that the amendments in any such statement of claim relate back to the day upon which the claim was instituted pursuant to UCR 69.2(3)(b).
Pursuant to that leave, on 22 March 2022 an amended claim and statement of claim were filed which, apart from a typographical correction, replicated the original 2021 action.
However, on 21 March 2022, a day earlier, the appellant issued the 2022 action against ASC AWD. As I have previously observed, this action was based on the same facts, against the same respondent, seeking the same damages and based on the same causes of action. The extension of time relied solely on the ascertainment of the identity of the respondent.
Against this procedural and factual background, I would understand the use of the phrase “collateral advantage” by the learned Master to be referring to an advantage which is not contemplated by the respondent nor countenanced by the UCR and which is, in all the circumstances, unfair and/or contrary to the interests of justice or the due administration of the law.
In my view, in this case, in order to overcome his failure to sue the appropriate respondent, the appellant first sought the cooperation and ultimately the consent of the respondent’s solicitors. He then invoked the court processes, initially to substitute the respondent and then to ensure that any amendments to his statement of claim dated back to the issue of the 2021 action.
Having availed himself (in ways which I do not suggest were improper in the sense of being dishonest or illegal) of the opportunity to sue the appropriate respondent, he then sought to use the court processes to institute what Mr White properly characterised as a “clone” or “zombie” proceeding. In my view it is proper to characterise it in this way because it adds nothing to the 2021 action.
In short, he was using the court processes for a purpose for which they were not designed and did not exist.
Put another way, the collateral advantage arising from the issue of the 2022 action, in the context of what led up to its institution, is the use by the appellant of the court processes to set up an alternative avenue for an extension of time having relied on the same court process to correct his own error.
So understood, I do not agree that the learned Master misinterpreted the meaning of the phrase “collateral advantage”, particularly in view of the findings of fact which his Honour made on this issue at [83], namely:
Here, the applicant seeks to use the ascertainment of the correct respondent as a basis for suing the same respondent for the same cause of action so as to achieve an extension of time, which fact would otherwise, have not been available to him were it not for the exemplary conduct of the respondents – ASC and ASC AWD.
Apart from his description of the respondent’s conduct as “exemplary” (I would prefer “appropriate”), I agree with these comments which succinctly articulate the basis for his conclusion that there has been an abuse of process.
Failure to consider oppression or injustice to the respondent
I accept that the learned Master did not expressly deal with the question of whether the continuation of the 2022 action would cause oppression or injustice to the respondent which could not be overcome by orders such as those which were advanced by the appellant.
However, I am not persuaded that he needed to. In Attorney-General v Kowalski, Blue J set out a number of established categories of abuse of process, one of which is proceedings, in a second forum, duplicating proceedings in a first forum, which cause oppression or injustice or are unjustified.
However, I do not understand Blue J to be saying that duplication of proceedings, in and of itself, could not in certain circumstances, amount to an abuse of process.
As the High Court observed in PNJ v R it is not possible to describe exhaustively what will constitute an abuse of process. Clearly, in Eckert the Chief Justice was prepared to accept that there had been an abuse without adverting to the need to establish oppression or injustice.
In this case, I am satisfied that the appellant’s 2022 action gives rise to an abuse of process not just because it simply duplicates proceedings but because it does so for purposes other than those for which the Rules are properly designed and in so doing brings the administration of justice into disrepute. As such, the appellant’s abuse of process does not fit neatly into one or another of the established categories but rather overlaps several categories. In my view, if the abuse is understood in this way, it is not necessary for the respondent to demonstrate oppression or injustice.
If I am wrong in this assessment, I do not consider that this failure necessarily assists the appellant because it is implicit from a reading of his reasons for decision at [87] that the learned Master considered that the respondent will suffer a real prejudice, namely having to now face a “fresh action”.
Accordingly, even if the learned Master is taken not to have adverted expressly to matters of oppression or injustice, he was clearly alive to the general issue, given the difficulties involved in consolidating the two actions which his Honour recognised at [111]-[113]. In my view, his Honour did not err in failing to expressly advert to oppression or injustice in this context.
The inadequacy of the pleading
On this issue, the respondent did not advance any argument in support of the learned Master’s reasons. For his part, the appellant submitted that if the pleading was defective it could be overcome by an amendment to the pleading. As I have said, the respondent did not suggest otherwise.
In my view, none of the matters adverted to by the learned Master on this issue, either alone or in combination, would be necessarily fatal to the success of this appeal given that, if the matters were able to be repleaded, most, if not all, of the issues could be overcome.
Accordingly, as the disposition of the appeal does not turn on the adequacy or otherwise of the appellant’s pleadings, it is unnecessary for me to express a concluded view on this issue.
Disposition of the appeal
If, as I have concluded, the institution of the 2022 action is an abuse of process, for the reasons articulated, it does not seem appropriate to stay the action which would have the effect that the action will continue to “hang over the respondent’s head”.
I consider, as did the learned Master, that this is one of those cases of abuse of process where a stay is not warranted.
I agree that in the circumstances, the learned Master’s decision to dismiss the 2022 action was the more appropriate and practical course.
Order
1. The appeal is dismissed.