Talacko v Talacko
[1999] VSC 81
•26 March 1999
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION Do not Send for Reporting Not Restricted
No. 7393 of 1998
| HELENA MARIE TALACKO AND ORS | Plaintiffs |
| v | |
| JAN EMIL TALACKO | Defendant |
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JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 February, 12 March 1999 | |
DATE OF JUDGMENT: | 26 March 1999 | |
CASE MAY BE CITED AS: | Talacko & Ors v. Talacko | |
MEDIA NEUTRAL CITATION: | [1999] VSC 81 | |
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Practice and procedure - Application to set aside writ, or that proceedings be forever stayed or dismissed - Inherent jurisdiction of court - Rule 23.01 - Proceedings brought in foreign court - Forum non inconveniens - Issue estoppel - "Anshun" estoppel.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiffs | Mr B.J. Shaw, QC with | Findlay Arthur Phillips |
| For the Defendant | Mr P. Solomon | Christopher Bunnett |
HIS HONOUR:
The appellant, by summons filed 19 November 1998, seeks an order that the writ herein be set aside, or alternatively that proceedings thereon be forever stayed, or dismissed. The application was heard by a Master and was dismissed on 18 December 1998. Now the appellant appeals from that decision.
To understand the issues that were debated before me, something of the circumstances alleged by the statement of claim and disclosed by affidavits filed in connection with this application needs to be set out.
There are four plaintiffs. One of them is a child of the late Elois and Anna Talacko. The other three are the children and beneficiaries under the will of a second child of that marriage. The defendant is a third child.
The late Mr and Mrs Talacko, citizens of the former Czechoslovakia, owned property (wholly, or in several cases a lesser interest) in what is now the Czech Republic, the Slovak Republic, and in that portion of the now unified Germany which was formerly East Germany. There were six properties in Prague, two parcels of agricultural land in the Czech Republic, a parcel of agricultural land in the Slovak Republic, and two properties in Dresden.
All this property was, in substance, expropriated by the authorities in the era of communist rule.
After the breakdown of communism, arrangements were made in each of the former Czechoslavakia and Germany for the return of expropriated property. Laws were enacted setting a framework by which claims for return of property were to be made.
In cases where the original owners of property were deceased, provision was made for claims by descendants of those owners.
This proceeding arises out of claims for return of property.
The plaintiffs allege that the three children of the late Mr and Mrs Talacko - that is, the first plaintiff, the now‑deceased father of the second, third and fourth plaintiffs, and the defendant - agreed in substance that if any claim for return of the properties succeeded, the properties were to be divided in equal shares amongst the three of them (or, in the case of any of them dying, the children of that sibling). Likewise it was agreed that any income from or proceeds of sale of any such property were to be divided in equal shares.
There were, the plaintiffs claim, requirements as to residency (in the case of the Czech Republic) and provisions limiting the time for making a claim for release of property (in the case both of the Czech Republic and Germany). The former, particularly, stood in the way of anyone but the defendant making a claim in respect of the "Czech properties" - in which description the plaintiffs include the land now within the Slovak Republic.
In the event, say the plaintiffs, the defendant instituted or pursued claims in respect of the Czech and German properties. He had the residency status to do so in the case of the Czech properties. The claims were made within time. All this was done in the pursuance of the agreement to which I referred a few moments ago, or by reason of a fiduciary duty owed by the defendant to his siblings (as to which, see below).
Further according to the statement of claim, the relevant authorities took steps in 1995 and 1996 in connection with the German properties which had the effect of returning their ownership to the first plaintiff, her deceased brother and the defendant - subject in one case to the discharge of certain financial liabilities attaching to the land. In the case of the Czech properties, according to the statement of claim, the defendant has obtained title to or an interest in or income from five of the six properties in Prague.
Apart from alleging breach of the agreement to which I have made reference, the plaintiffs claim that the defendant was in breach of fiduciary duties which he owed them, and in breach of a constructive trust in respect of recovered land. As to fiduciary duty they plead that in the circumstances which I have briefly described the siblings came into a fiduciary relationship each with the others whereby each of them owed to the others a fiduciary duty in relation to the recovery, administration and disposal or distribution of the properties to act honestly and fairly in the interests of all; not capriciously or unconscionably.
According to the statement of claim the defendant holds any interest in or entitlement to the properties
·pursuant to the agreement;
·as a fiduciary of the first plaintiff and the children of his late brother; and
·on a (constructive) trust for the first plaintiff and the children of his late brother.
The plaintiffs then allege that the defendant has breached the agreement, his fiduciary duty and the trust by, inter alia, maintaining that he is the sole beneficial owner of the properties which have been recovered, by refusing to divide them up, likewise by refusing to divide up any interest in or income which he has derived therefrom.
The relief sought by the plaintiffs is, broadly, by way of declarations, an account, an order for payment of moneys due, further or alternatively damages for breach of contract, further or alternatively again equitable compensation for breach of fiduciary duty/breach of trust, and restraint upon the defendant dealing with the properties.
The statement of claim does not make any specific allegations with respect to recovery of the sixth Prague property, or the Czech and Slovak rural properties. Its text suggests that the plaintiffs do not know whether the defendant has recovered those properties. The allegations of agreement, fiduciary duty, trust and breach are certainly wide enough to embrace those properties; no doubt intentionally so.
Before the Master, counsel for the plaintiffs apparently conceded that the defendant had only claimed and obtained title to some of the land in the Czech Republic. No such concession was made before me.
I note that the defendant, by his affidavit sworn 19 January 1999, deposes that in July 1996 the plaintiffs made an administrative claim for an interest in the two parcels of agricultural land in the Czech Republic. The affidavit does not reveal the fate of those applications. Nor does the defendant by his affidavit indicate whether he made any claim in respect of those properties; and, if so, its outcome.
In the event, it appears to me that the present application must be considered on the footing that the plaintiffs raise claims in respect of all the lands referred to in paragraph 6 of the statement of claim.
The appellant, in seeking the alternative forms of relief to which I earlier referred, relied upon the following matters in his summons:
"(c)proceedings have been brought by the Plaintiffs in a Court of competent jurisdiction (the foreign proceedings), namely the District Court at Prague in the Czech Republic whereby the Plaintiffs in these proceedings sought as Plaintiffs to establish and enforce the agreements relied upon by the Plaintiffs in the Endorsement of Claim to the Writ issued in these proceedings;
(d)by bringing the foreign proceedings, the Plaintiffs submitted to the jurisdiction and adjudication of the foreign Court in the foreign proceedings;
(e)the foreign proceedings were heard and determined by the foreign Court on 18 March 1998;
(f)by judgment the foreign Court determined and adjudicated inter alia that:
(i)the Plaintiffs as Plaintiffs in the foreign proceedings failed to substantiate the existence of a duly concluded agreement;
(ii)the claim of the Plaintiffs be dismissed;
(g)by Notice of Appeal dated 9 April 1998 and filed in the Court of Appeal at Prague (the foreign Appeal Court), the Plaintiffs in these proceedings commenced an appeal against the adjudication, determination and judgment of the District Court at Prague;
(h)the said appeal is still pending before the Foreign Appeal Court."
The material relevantly shows that:
·The Victorian proceeding was commenced by writ filed 2 October 1998.
·A proceeding was commenced in the District Court at Prague in or about October 1995. It was supplemented by proceedings commenced in 1996. The plaintiffs in the Victorian proceeding were plaintiffs in the Czech proceedings. The defendant was one of two defendants in the Czech proceedings.
·The Czech proceedings related to five of the six properties which are part of the subject matter of the Victorian proceeding.
·The second defendant in the Czech proceedings was the entity responsible for the release of expropriated properties to their original owners or their descendants.
·In the Czech proceedings the plaintiffs sought, in effect, to be added as registered proprietors of the land, in stipulated proportions.
·The plaintiffs' claim in the Czech proceedings failed at first instance, judgment being delivered on 18 March 1998. The claims failed because
*the plaintiffs did not hold Czech citizenship at any relevant time;
*in the Czech proceedings the plaintiffs must have made a claim upon the entity which held the land as at April 1991 within a prescribed period if they wished to pursue a claim against a person to whom the land had thereafter been released. The plaintiffs had made no such claim on that entity. So they could make no claim in those proceedings upon the defendant in the Victorian proceedings (whom it is convenient simply to describe as the defendant in both the Czech and Victorian proceedings).
*Had the plaintiffs not been precluded from bringing a claim against the defendant, they could not have relied on the agreement, which was required by Czech law to be in writing.
·The question whether the first plaintiff, her late brother and the defendant entered into an agreement - whether as pleaded in the Czech proceedings or in the Victorian proceeding - was not determined in the Czech proceedings.
·In the Czech proceedings the plaintiffs relied only upon an alleged agreement. The agreement upon which they relied in those proceedings was shortly described. Compare the detail of the Victorian pleading. But the essential content of the agreement relied upon in the Czech proceedings mirrored its content as pleaded in the Victorian proceeding.
·The plaintiffs appealed from the decision of the District Court. The notice of appeal shows that the plaintiffs challenged the finding that they were not Czech citizens at a relevant time, and the finding that they did not make a claim within the time prescribed by Czech law upon the relevant entity. It certainly raised the contention that there had been an agreement with respect to the land to which the first plaintiff, her late brother and the defendant were parties. It is not altogether clear to me how this was said to be relevant. I think that the plaintiffs were seeking to contend that the claim for release of the land made by the defendant was, by reason of the agreement, a claim upon the “obliged person” by all of them; that the agreement, for this purpose, was not required to be in writing; and that they should thus be taken to have made a claim on the “obliged person” within the prescribed period. It is not clear to me that the appeal was directed to the nature and merits of any case the plaintiffs might have against the defendant in the event that they were not precluded from bringing such a claim.
·The plaintiffs did not call in aid in the Czech proceedings principles pertaining to fiduciary relationships, trusts or unjust enrichment. A question arises whether and to what extent they could have done so.
·Jan Grozdanovic is qualified to practice as an advocate in the Czech Republic. He is a solicitor admitted to practice in the courts of England and Wales. In an affidavit affirmed 22 January 1999 he opined, by paragraph 12:
“ ... the provisions of the Civil Code of the Czech Republic contain provisions which would have entitled the Plaintiffs in the proceedings in the District Court to have obtained the relief which they sought in those proceedings based upon principles of trust and fiduciary relationship and unjust enrichment had they established the facts necessary to found a judgment of that sort.”
Earlier in his affidavit he set out various provisions of the Civil Code of the Czech Republic. He did not, by paragraph 12, relate those provisions to the opinion there expressed. It is not clear to me which of those provisions could have been applied in the circumstances presently alleged. I do not understand, nor does the affidavit make clear, what Mr Grozdanovic meant by his reference to the plaintiffs establishing “the facts necessary to found a judgment of that sort”.
Marek Svoboda is qualified to practice as an advocate in the Czech Republic. He has been called to the bar of England and Wales. By paragraph 6 of what is described as his affidavit sworn 2 March 1999 (the document is not signed, though it is witnessed at the attestation clause - but I was invited to pay regard to its content) Mr Svoboda opines that English concepts such as equity, trusts and equitable interests are not concepts used in Czech law. He notes that provisions relating to private property rights were only reintroduced into the Czech Civil Code in 1991, in consequence of which their operation is yet to be settled. Against that background Mr Svoboda:
* Explains that Czech law does not recognise the distinction recognised by our law between legal and equitable interests in property. Legally enforceable rights and obligations only arise “pursuant to (statutory) law, to contract, in the event that damage arises from circumstances defined by law or in the event of unjust enrichment”.
* Opines that Czech law “does impose fiduciary-like obligations on certain categories of agent”; but that the scope of such obligations is not clear, despite there being a definite trend for imposition of the same.
* Opines that, if the plaintiffs could prove that the defendant had been unjustly enriched at their expense, or had breached a “mandate agreement”, they would be entitled to claim recovery of the property and, additionally, “specific performance and/or damages for breach of contract”.
* Expresses this opinion about paragraph 12 of Mr Grozdanovic’s affidavit:
“In my opinion, there are certain provisions of the Code which may provide legal remedies similar in effect to, although less flexible and more limited in application than, a claim under a constructive trust under English law.
I agree generally with Mr Grozdanovic in paragraph 12 of his affidavit that certain provisions would have entitled the plaintiffs to obtain the relief they sought before the Czech courts based upon principles similar to those of trust and fiduciary relationships.
However, the plaintiffs would have to fit their claim within these narrow and concrete provisions of the Code, so that in practice one would expect them to find it more difficult to obtain the same level of remedy as that under a constructive trust."·In my opinion what can drawn out of the affidavit of Mr Grozdanovic and the document prepared by Mr Svoboda is that there was a possibility of the plaintiffs calling in aid against the defendant in the Czech proceeding a concept of fiduciary-like obligations, and a concept of unjust enrichment. But whether such concepts, if called in aid, could have been made to fit the circumstances of the case is uncertain. The particular areas of law are newly developing. It is not clear whether, if one or both of such concepts had been called in aid by the plaintiffs, it would have been necessary for the agreement relied upon by the plaintiffs to have had some, and if so what, formality. Nor, as an anterior matter, is it apparent that recourse to such concepts could have enabled the plaintiffs to escape the preclusion on their bringing proceedings against the defendant which the District Court found to exist.
There were a number of threads to the argument pursued by Mr B.J. Shaw of Queens Counsel, who with Mr G. Hardy appeared for the appellant. It is convenient to deal with the argument under discrete headings.
Forum Non Inconveniens:
The test is set out in the judgment of Deane J in Oceanic Sunline Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247-248. That test was accepted as being correct by the majority in Voth v Manildra Flour Mills Pty Ltd and Anor (1990) 171 CLR 538; see particularly the joint judgment of Mason CJ, Deane, Dawson and Gaudron JJ at 559 and 564-565.
The power to stay should only be exercised in a clear case. The onus of showing that the local court is so inappropriate that continuation of the proceeding commenced there would be oppressive and vexatious to him lies upon the applicant.
In applying the test, factors connecting the proceeding with the local jurisdiction are pertinent; so also the question whether the plaintiff obtains a legitimate personal or juridical advantage in pursuing that proceeding in the local jurisdiction; see the speech of Lord Goff in Spiliada Maritime Corp v Consulex Ltd [1987] AC 460 at 477-478 and 482-484, referred to with approval in the particular connection by Mason CJ, Deane, Dawson and Gaudron JJ in Voth at 564-565.
The extent to which the law of the local forum is applicable in resolving the rights and liabilities of the parties is a very significant factor in the exercise of the discretion; but other factors must not be ignored.
It is relevant to consider whether proceedings are on foot in a foreign jurisdiction which involve “the same or related factual issues as those involved in the local proceedings”; a fortiori where the proceedings on foot in the foreign country “are between the same parties and with respect to the same issue or controversy”: Henderson v Henderson (1996) 185 CLR 571 at 590-591. In such a case commencement of a proceeding in the local jurisdiction is prima facie vexatious and oppressive. Such circumstances may well, but need not necessarily, lead to a conclusion that the local jurisdiction is a clearly inappropriate forum.
In the present case, despite the commencement (and indeed the prosecution to judgment) of proceedings in the Prague District Court, the defendant has not satisfied me that the Victorian proceeding should be stayed on forum non inconveniens grounds - whether in respect of the land the subject matter of the Czech proceedings, or more generally. The following matters weigh against such a conclusion:
First, there are a number of factors which connect the parties and the subject matter of the proceeding with the Victorian jurisdiction. Thus, the material before me shows that:
· The plaintiffs, who all live in Australia, sue upon an agreement which was allegedly entered into in Victoria.
· Documents which are said to be a part implementation of the agreement were exchanged between the first plaintiff, her late brother and the defendant in Melbourne.
· A letter dated 11 February 1990 of which the defendant is said to have been the author, and which is said to evidence the agreement, has the defendant's then Victorian address upon it - the plaintiffs contending that the proper inference is that it was written by the defendant when in Victoria.
· The fiduciary duty is alleged to have arisen out of events which to a significant extent occurred in Victoria; likewise the constructive trust.
· Payments said to have been made by the defendant's late brother to the defendant in furtherance of the agreement were made by cheques drawn on Australian banks.
· Three meetings at which the defendant is said, in substance, to have denied the agreement upon which the plaintiffs rely, and to have acted in breach of the fiduciary duty and the trust, took place in Melbourne.
Second, the relief sought by the plaintiffs in the Victorian proceeding is essentially monetary; compare the relief sought in the Czech proceedings. As a corollary, there is evidence that the defendant has an Australian asset which, prima facie, could enable satisfaction of a money judgment in favour of the plaintiffs.
Third, the Czech proceedings only involved a fraction of the land the subject of the alleged agreement, fiduciary duty and trust.
Fourth, in the Czech proceedings the issue whether an agreement was entered into was not passed upon. The plaintiffs had no status to sue; and in any event the agreement upon which they relied must have been in writing.
Fifth, a close reading of the affidavit of Mr Grozdanovic and the document prepared by Mr Svoboda show that, in my opinion, it is uncertain whether the plaintiffs could have successfully called in aid in the Czech proceedings principles of law akin to those created by fiduciary relations and the law of trusts in this country.
Sixth, it is a corollary of the fourth and fifth matters that there are available to the plaintiffs, in the Victorian proceeding, significant juridical advantages. The plaintiffs have status to sue, there is no requirement that the agreement upon which they sue be in writing, and there are principles of fiduciary obligations and trusts which they may call in aid.
Seventh, because of the differing frameworks of Czech and Australian laws, and the different remedies sought in the Czech and Victorian proceedings, judgment in favour of the plaintiffs in the Victorian proceeding would not necessarily conflict with the judgment for the defendant in the Czech proceedings.
My conclusion that Victoria is not a clearly inappropriate forum for the plaintiffs' claim is the stronger in the case of the Czech agricultural land. Mr Shaw submitted that in respect of that land there were proceedings on foot. There is some evidence that the plaintiffs laid claim to that land by an administrative procedure in 1996. There is no evidence that the administrative claim was open to them, let alone evidence that they could have taken or could take court proceedings in the Czech Republic in respect of it. The plaintiffs do claim, in the Victorian proceeding, relief against the defendant in respect of that land.
It goes without saying that the plaintiffs' position on the forum non inconveniens argument is yet stronger in respect of the Slovak and German land. There is no evidence that the plaintiffs could bring against the defendant any, and if so what, claims in the courts of those countries.
Issue estoppel:
The rare cases in which a proceeding may be summarily disposed of - whether under the inherent power of the court or by resort to Rule 23.01 - have included instances where the defendant has established res judicata or issue estoppel.
In England, an issue estoppel may arise out of a judgment in a foreign tribunal: see, for example, Carl Zeiss Stiftung v. Rayner and Keeler Ltd (No. 2) [1967] AC 853. In considering whether such an estoppel has arisen it is necessary to exercise caution. The local court may be unfamiliar with the procedures in the foreign court, or with the specific issues the subject of determination there. Lord Reid's dictum to that effect (at 918 in Carl Zeiss) has been referred to with approval more than once.
Counsel for the respondent submitted that it is not certain that the principle that an issue estoppel may arise out of a foreign judgment applies in Australia. He cited Tanning Research Laboratories v. O'Brien (1990) 169 CLR 332 at 345-346 per Brennan and Dawson, JJ. There are problems with that submission. It is not necessary to explore them. Assuming in the appellant's favour that the principle does apply, I am quite unpersuaded that the proceedings in the Prague District Court finally and conclusively determined whether or not an agreement was entered into between the first plaintiff, her late brother and the defendant in respect of properties including the properties the subject of the Czech proceedings.
Making the assumption to which I referred a moment ago, the party seeking to rely upon the principle must show, inter alia, that there is a judgment on the merits which finally and conclusively disposed of an issue raised in the Victorian proceeding between identical parties. In Blair v. Curran (1939) 62 CLR 464 at 531-532 Dixon, J said - the dictum was described by Adam, J in Azzopardi v. Bois [1968] VR 183 at 185 as "a classic statement of the doctrine of issue estoppel":
" ... The estoppel covers only those matters which the prior judgment ... necessarily established as the legal foundation or justification of its conclusion ... . Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue‑estoppel is confined to those ultimate facts which form the ingredients in the cause of action ... . In the phraseology of Coleridge, J., in R. v. Inhabitants of the Township of Hartington Middle Quarter (1855), 4 El. & Bl. 780; 119 E.R. 288, the judicial determination concludes not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous."
In my opinion it is clear that the Prague District Court did not decide whether an agreement as pleaded in the Victorian proceeding (I treat the agreement pleaded in the Czech proceeding as identical) was concluded. That was not a necessary part of the court's decision. Its reference to the alleged agreement was what we would call obiter dicta. Further, the Czech court found no more than that the formality of writing required by Czech law in the case of such an agreement was not present. It seems to me that to categorise "the issue" common to the Czech and Victorian proceedings, and resolved by the Czech proceedings, as being whether there was a legally binding agreement - that was the characterisation urged upon me by Mr Shaw - was far too wide. I add that the material before me leaves it somewhat uncertain - I refer particularly to the notice of appeal in those proceedings - just what reliance needed to be and was placed upon the agreement in the Czech proceedings. The observations of Lord Reid in Carl Zeiss to which I referred a few moments ago are relevant in that context.
"Issue estoppel of a different kind":
Mr Shaw submitted that the plaintiffs should be precluded from proceeding against the defendant in Victoria in respect of the non-Czech Republic land because their claim turns upon the existence of a legally binding contract between the first plaintiff her late brother and the defendant; and the Czech court has passed upon that question. The submission fails because Mr Shaw's characterisation of the issue that the Czech court decided cannot be accepted. There are other substantial problems in the way of acceptance of Mr Shaw's submissions. It is not necessary to refer to or deal with them.
"Anshun" estoppel:
Mr Shaw submitted that the plaintiffs should be precluded from bringing the Victorian proceeding because, accepting that they had not raised claims based on fiduciary obligations or the law of trusts in the Czech proceedings, they could and should have done so. It was unreasonable for them not to have done so; see Port of Melbourne Authority v. Anshun Pty Ltd (No. 2) (1981) 147 CLR 589 at 602-604 per Gibbs, CJ, Mason and Aickin, JJ.
In Slater and Anor v. Nye and Anor [1998] VSC 100 I said this at paragraphs 17 - 18:
"The scope - and even the existence - of Anshun estoppel has been debated: Chamberlain v. Deputy Commissioner of Taxation (1988) 164 CLR 502, Tanning Research Laboratories Inc v. O'Brien (1990) 169 CLR 332, Christie, op cit, at 602, Rogers, op cit, at 275, and (probably) Linsley v. Petrie [1998] 1 VR 427 at 433-436. See also, recently, Bill Gibbs & McAllion Lloyd Pty Ltd v. Kinna [1998] VSCA 52. But I do not understand that the doctrine has been rejected out of hand. Indeed, there are factual circumstances where its application is likely to be entirely compatible with the achievement of justice.
Concerning Anshun estoppel I add this: Anshun denied to the defendant in the second proceeding the opportunity of raising a matter which should have been, but was not, litigated in the first proceeding; a matter which it was unreasonable not then to have litigated. The Full Court of the Federal Court has held that, in some cases, the doctrine may also deny to the plaintiff in the second proceeding the opportunity of raising a matter which should have been, but was not, litigated by way of counterclaim or cross claim in the first proceeding: Bryant v. Commonwealth Bank of Australia (1995) 130 ALR 129; see particularly at 139-140. The remarks of Brennan and Dawson, JJ in Tanning, op cit, at 346 upon this point were, I respectfully consider, satisfactorily explained by the Full Court in Bryant."
I adhere to those observations.
Two questions arise: assuming but not deciding that the doctrine could be applied to a matter which it was unreasonable for the plaintiffs not to allege by their claim in the earlier proceeding
· Does the doctrine apply in respect of a matter not raised in a foreign proceeding;
· If yes, should it lead to my exercising my discretion in favour of the defendant in this case?
Dealing with the first question, there is some English authority that an Anshun estoppel can arise out of the prosecution of a proceeding in a foreign tribunal: Desert Sun Loan Corporation v. Hill [1996] 2 All ER 847 at 854-855 per Evans, LJ. By several references his Lordship there made it clear that issue estoppel, a fortiori Anshun estoppel, should be discerned only with caution in the decision of a foreign court; see also his Lordship's observations at 858.
Whether "Anshun" estoppel is properly described as a species of issue estoppel, or alternatively as an estoppel of a discrete kind, it may be that, in Australia, such an estoppel could arise by reason of the conduct of proceedings in a foreign court. Tanning touched upon, but did not resolve that question.
If such an estoppel could arise I consider that it would be right to be very cautious before concluding that it was unreasonable for a plaintiff not to have raised a particular basis of claim in an earlier foreign proceeding. Such a conclusion appears to me harder to reach, having regard to the considerations mentioned by Lord Reid in Carl Zeiss, than would a conclusion that a particular issue had in fact been raised and adjudicated upon.
In the present case, assuming but not deciding that an Anshun estoppel could arise out of the prosecution of a proceeding in a foreign tribunal, I am not prepared to conclude that it was unreasonable for the plaintiffs not to rely upon principles akin to fiduciary obligations and the law of trusts in pursuit of the Czech proceedings. The most that the defendant can say is that there is some evidence that the Czech civil code contains some provisions, of uncertain application, which have points of connection with duties cast upon fiduciaries under our law, and the obligations of trustees. Whether the plaintiffs could have obtained the benefit of any of those provisions, which are evidently narrower in their operation than concepts called in aid by the plaintiff in the Victorian proceedings, and the relief that might have been available in any such case, is not clear. That is not the stuff of which an Anshun estoppel is made.
In the event, the Master was right to dismiss the appellant's summons. The appeal should be dismissed.
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