Taseska v Carus
[2017] VSC 113
•16 March 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABLITY LIST
S CI 2015 04680
| SILVANA TASESKA | Plaintiff |
| v | |
| HENRY JOSEPH CARUS | First Defendant |
| HENRY CARUS & ASSOCIATES (The Trustee for HCA Trust ABN 97 872 505 795) | Second Defendant |
---
JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 February 2017 |
DATE OF JUDGMENT: | 16 March 2017 |
CASE MAY BE CITED AS: | Taseska v Carus & Anor |
MEDIUM NEUTRAL CITATION: | [2017] VSC 113 |
---
PRACTICE AND PROCEDURE – Application by the defendants for summary judgment – Whether abuse of process arises out of plaintiff’s statement of claim – Application of Civil Procedure Act 2010 (Vic), ss 62, 63 and Supreme Court (General Civil Procedure) Rules 2015, Order 23 – Not a case in which res judicata or issue estoppel arises – Pleading insufficiently clear to determine whether abuse of process has occurred as a result of plaintiff’s attempt to re-litigate the proceeding.
---
APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For the Defendant | Mr C G K Madder | DLA Piper Australia |
HER HONOUR:
On 3 September 2015, the plaintiff, Ms Taseska, issued this proceeding alleging negligence against and seeking damages from her former solicitor, Henry Carus, and his firm (‘defendants’). Mr Carus acted for Ms Taseska prior to the breakdown of his professional relationship with Ms Taseska on or about 2 September 2013, in two proceedings brought by her in this Court against her former employer, MSS Security Pty Ltd (‘personal injuries proceedings’). These two proceedings were heard together before J Forrest J in February 2016, where Ms Taseska represented herself. His Honour delivered his judgment on 20 May 2016.[1] He dismissed Ms Taseska’s claim for psychological injury (‘stress claim’), and awarded Ms Taseska $250,000 for damages for pain and suffering arising out of an injury to her knee (‘knee claim’).
[1][2016] VSC 252.
Ms Taseska’s claims in her statement of claim concerned the failure of Mr Carus to disclose to Ms Taseska an offer made by MSS Security Pty Ltd (‘MSS’) in the personal injury proceedings prior to the commencement of the trial on 29 August 2013. Ms Taseska learned during the course of a judicial mediation on 2 September 2013 that, prior to trial, MSS had made an offer of $200,000 ‘all‑in’ (‘undisclosed offer’) in respect of the personal injury proceedings. This caused the breakdown of the relationship between Ms Taseska and her legal team, and Ms Taseska ended Mr Carus’ retainer. The trial of the personal injury proceedings was adjourned owing to Ms Taseska’s ill-health, and she represented herself from then on.
In paragraphs 20 to 24 of the statement of claim, Ms Taseska made the following allegations:
The Defendant’s [sic] and Henry Joseph Carus and Henry Carus & Associates, were aware of the offers of settlement given prior to trial commencing on 29 August 2013 but failed to disclose the offers and made the Plaintiff and/or Silvana Taseska take the witness stand for 2 days unnecessary [sic].
In the circumstances of the Defendant’s [sic] and/or Henry Joseph Carus and Henry Carus & Associates, knew or ought to have know [sic] that the Plaintiff was person [sic] of less than normal fortitude for reason of her injury and that she was at risk of suffering greater injury.
The Defendant’s [sic] and/or Henry Joseph Carus and Henry Carus & Associates should have foresaw [sic] or ought to have foreseen that a person of psychiatric illness [sic] might, in the circumstances of the case the defendant should have recognised that if reasonable care was not taken, the plaintiff [sic] pre-existing psychiatric illness can be aggravated.
The Defendant’s [sic] and/or Henry Joseph Carus and Henry Carus & Associates was at all relevant times under a duty to the Client Plaintiff and/or Silvana Taseska to take reasonable care in the course of engaging in legal practice, act honestly and fairly in clients’ [sic] best interests and maintain clients’ confidences.
The Plaintiff and/or Silvana Taseska [sic] injuries occurred by reason of the Defendant’s [sic] and/or Henry Joseph Carus and Henry Carus & Associates breach of duty that failed to provide. [sic]
Ms Taseska alleges, at paragraph 12 of her statement of claim, that she suffered loss and damage by reason of the defendant’s negligence and/or breach of retainer, including:
(a) aggravation, acceleration or recurrence of an injury;
(b) shock;
(c) anxiety;
(d) depression;
(e) pain;
(f) distress (inconvenience, emotional suffering, vexation);
(g) the injury that the plaintiff and/or Silvana Taseska was suffering [sic] have increased after the incident.
Ms Taseska alleged numerous breaches of duty on the part of the defendants. She pleaded that, as a result of the defendants’ breaches of duty, she suffered the following loss and damage:
(a)lost offers that were given by MSS Security Pty Ltd in the following case: S CI 2011 0311 and S CI 2012 05455;
(b)incurred legal cost from Victorian WorkCover Authority / MSS Security Pty Ltd in the following case: S CI 2011 0311 and S CI 2012 05455;
(c)incurred extra legal costs;
(d)extra disbursements;
(e)costs of extra medications;
(f)increase medical costs; and
(g)increased travel costs.
In her prayer for relief, Ms Taseska claimed general damages in the sum of $3,785.260, plus interest and costs. It is not clear how this sum was arrived at.
On 15 December 2015, the defendants filed a summons seeking to strike out the proceeding. Paragraphs 1 and 2 of the summons are reproduced below:
1.The proceeding against the Defendants be struck out pursuant to Order 23 of the Supreme Court (General Civil Procedure) Rules 2015 and/or pursuant to the Court’s inherent jurisdiction on the grounds of the following (which are included in the Defendants’ Defence dated 30 October 2015):
1.1Litigation and/or issue estoppel arising from the judgment of Associate Justice Wood in the Costs Court on 26 June 2015; and/or
1.2Litigation and/or issue estoppel arising from the judgment of Associate Justice Wood in the Costs court on 26 June 2015.
2.Further and/or in the alternative, the proceeding against the Defendants be stayed pursuant to Order 23 of the Supreme Court (General Civil Procedure) Rules 2015 and/or pursuant to the Court’s inherent jurisdiction on the grounds of the following (which are included in the Defendants’ Defence dated 30 October 2015):
2.1The Plaintiff cannot prove that she has suffered any loss as alleged while the underlying proceedings (Supreme Court proceedings S CI 2011 0311 and S CI 2012 05445) remain on foot, and unless and until such proceedings are determined; and/or
2.2The Plaintiff has failed to comply with Part VBA of the Wrongs Act 1958.
This summons was originally returnable before me on 24 February 2016. I adjourned the further hearing of the summons to a date to be fixed not less than 14 days before the later of:
(a) final orders being made in the personal injuries proceedings; and
(b) the determination of the defendants’ referral of Ms Taseska’s claim to the medical panel.
The rationale for staying the summary dismissal application, was to enable the financial impact of the defendants’ failure to disclose the undisclosed offer upon Ms Taseska to be crystallised. If the ultimate outcome of the personal injury proceeding (after taking into account costs) was more favourable to Ms Taseska than the undisclosed offer, then any claim for financial loss as a result of failure to disclose the undisclosed offer would fall away, regardless of whether the failure to disclose was actionable. Further, if the medical panel ruled adversely to Ms Taseska concerning the alleged additional psychological injury caused by the defendants’ conduct (over and above the injury which was the subject of the stress claim), then Ms Taseska would be precluded from recovering damages in this proceeding.
J Forrest J handed down his judgment in the personal injuries proceedings on 20 May 2016.[2] His Honour dismissed the stress claim, and awarded $250,000 for pain and suffering with respect to the knee claim. Ms Taseska’s application for leave to appeal the decision of J Forrest J was dismissed on 12 August 2016. On 24 August 2016, the medical panel determined that:
The Panel disregarded unrelated psychiatric impairment and concluded that the degree of psychiatric impairment resulting from the psychiatric injury to the claimant alleged in the claim is permanent but is not 10% or more and therefore does not satisfy the threshold level as prescribed by section 28LB of the Act as amended.
[2][2016] VSC 252.
Further, during the latter part of 2016, the parties to the personal injuries proceedings engaged in negotiations concerning the costs ordered by J Forrest J in those proceedings. The negotiations included Mr Carus, as his firm had successfully claimed a lien over the judgment obtained by Ms Taseska as a result of a further decision of J Forrest J on 18 August 2016[3] (‘lien judgment’). The result of these negotiations was that Ms Taseska and the defendant in the personal injuries proceeding in effect walked away from their respective costs claims, and Ms Taseska paid Mr Carus $43,000, leaving Ms Taseska with the sum of $207,000 in her hand. While it is not possible to precisely calculate what net amount Ms Taseska would have received had she accepted the undisclosed offer, given that Mr Carus’ costs were taxed at $175,000 (of which only $11,000 had been paid), Ms Taseska was clearly better off as a result of the trial of the personal injury proceedings than had she accepted the undisclosed offer. Further, as a result of the determination of the medical panel (which has not been the subject of an application for judicial review, the time for such an application having expired in late October 2016), Ms Taseska is unable to recover any damages for any alleged psychological injury she alleges was caused by the defendants’ conduct.
[3][2016] VSC 433.
It was in that context that the parties approached the Court in late 2016 to have the matter re‑listed. On 16 January 2017, Ms Taseska issued a summons seeking leave to amend her statement of claim, and that the matter be fixed for trial. On 30 January 2017, the defendants filed a further amended summons, seeking the following relief:
1.Pursuant to sections 62 and/or 63 of the Civil Procedure Act 2010 (Vic) and/or pursuant to Order 23(1) of the Supreme Court (General Civil Procedure) Rules, and/or the Court’s inherent jurisdiction there be summary judgment for the Defendants;
2.Further or alternatively, the proceeding against the Defendants be struck out pursuant to Order 23(2) of the Supreme Court (General Civil Procedure) Rules 2015 and/or pursuant to the court’s inherent jurisdiction on the grounds including the following (which are included in the Defendants’ Defence dated 30 October 2015):
2.1Litigation and/or issue estoppel arising from the judgment of Associate Justice Wood in the costs Court on 26 June 2015; and/or
2.2Litigation and/or issue estoppel arising from the judgment of Associate Justice Wood in the Costs Court on 26 October 2015; and/or
2.3On the basis that the proceeding is an abuse of process.
No proposed amended statement of claim accompanied Ms Taseska’s summons. However, the solicitor for the defendants in his affidavit sworn in support of the defendants’ amended summons on 27 January 2017, exhibited a document dated 9 January 2017, which, Ms Taseska did not dispute, was her proposed amended statement of claim. The evidence and submissions of the defendants focussed upon this version of Ms Taseska’s claim, rather than the original statement of claim, the claims in which have been largely overtaken by the events described in paragraph 11 above.
The proposed statement of claim retains the claim for psychological injury arising out of the defendants’ failure to disclose the undisclosed offers, notwithstanding the determination of the medical panel referred to in paragraph 10 above. The proposed amended statement of claim includes the following claims:
(a) in paragraph 7 of the proposed amended statement of claim, Ms Taseska alleges that the stress claim was worth $2,636,761.49. No separate allegation is made here concerning the defendants’ conduct of the stress claim, but it seems from the allegations in paragraphs 35, 40 to 45, the new particulars of breach under paragraphs 49, and paragraph 50 of the proposed statement of claim that Ms Taseska alleges that the defendants’ conduct, both in preparing the case for trial and in refusing to hand over their file after the retainer was terminated, caused Ms Taseska to fail in the stress claim; and
(b) similarly, in paragraphs 9 to 11 of the proposed amended statement of claim, Ms Taseska alleges that Mr Carus failed to make an application for a serious injury certificate for economic loss with respect to the knee claim. However, she does not allege that the defendants were negligent in failing to make an application for past economic loss and future economic loss, or plead any loss and damage said to have been incurred by her in that regard. Rather, she alleges that her knee claim was worth $503,000, not $250,000, and by reason of the defendants’ breach of duty referred to in (a) above, she failed to obtain $503,000 in general damages for the knee claim.
In their written outline of submissions, the defendants made, in summary, the following observations concerning the proposed statement of claim:
(a) Ms Taseska’s claim for an aggravation of her psychological/psychiatric injury cannot proceed given the determination of the medical panel;
(b) in relation to the damages claimed in respect of the personal injuries proceedings, Ms Taseska’s claim is estopped or is otherwise an abuse of process by reason of the judgment of J Forrest J in the personal injuries proceedings;
(c) in relation to the alleged failure on the part of the defendants to apply to amend the statement of claim in a timely manner, the defendants submitted that Ms Taseska does not specify how the statement of claim ought to have been amended, or why she took no steps to apply to amend the statement of claim between September 2013 and February 2016. In any event, if the proposed amendment related to an amendment of the stress claim to include a breach by reason of her return to inappropriate duties, J Forrest J dealt with this issue in his judgment in the personal injuries proceeding, notwithstanding it was not part of her pleaded claim;
(d) in relation to the alleged failure of the defendants to adequately prepare the case for trial, including the failure to subpoena witnesses, Ms Taseska makes no allegations as to how her claim was affected, and fails to explain how this affected her ability to prepare for trial between September 2013 and February 2016, when she represented herself; and
(e) in relation to the claims concerning the defendants’ withholding of the file, Ms Taseska did not identify what parts of the file were necessary for her to prosecute the personal injuries proceeding, or how the absence of the file hampered her preparation of the proceeding for trial. Further, on 18 August 2016, J Forrest J held that the defendants were entitled to maintain a lien over the file, as a result of the lien judgment.
Ms Taseska swore an affidavit in support of her application on 16 January 2017, which included some allegations concerning matters which are not referred to in the proposed amended statement of claim. She repeated her assertion that the stress claim was worth $2,636,761.49, and exhibited a copy of her tax return for the year ending 30 June 2002.
In her affidavit, Ms Taseska alleged that the defendants failed to make an application for a Serious Injury Certificate with respect to economic loss. Had they done so, given that she was successful in the knee claim, she would have been entitled to recover her financial losses of $2,133,762.00. Further, the defendants failed to refer in the statement of claim with respect to the knee claim to the fact that her knee injury is so severe that she will need total knee replacement surgery. If they had done so, and if she had been able to properly prepare her case for trial, she would have been awarded $503,000 for pain and suffering damages, not $250,000.
Ms Taseska also deposed that the defendants charged her for work done with respect to an application for an impairment benefit. However, in an affidavit sworn on 20 September 2016, Mr Carus deposed that:
A claim for impairment benefit was not submitted, thus no documents exist in relation to any submitted impairment benefit claim.
Ms Taseska deposed to finding a file note made by an employee of the second defendant on 21 June 2012, which referred to impairment benefits of $6,083.95 having been paid for the stress claim, and $6,075.68 having been paid for the knee claim. Ms Taseska deposed that she could have received up to $347,890 for the knee claim, because her right knee is ‘100 per cent damaged’ and $84,370 for her psychiatric injury ‘because at the time my injury was 50%.’ Ms Taseska deposed that she did not find any other documents in the defendants’ files relating to the payment for impairment benefits, which she believes is because relevant documents were removed from the files as part of a ‘clean up’.
Further, Ms Taseska deposed as to the progress of the personal injuries proceedings, including the mediations which were conducted, and the breakdown in the relationship between her and the defendants. She alleged as follows:
(a) as a result of the defendants’ mistakes and their refusal to provide their files, no other law firm wanted to represent her case, and she was forced to represent herself without her files and relevant documents;
(b) there was evidence that Mr Carus was not willing to negotiate during the course of the personal injuries proceedings, and he was not providing the lawyers for MSS any information;
(c) Ms Taseska deposed as follows:
If Henry reviled [sic] all the information that was in his possession the defendant (MSS Security) would off settle the cases and would off [sic] payed me all my financial losses that I have sustain due to my injuries. Also my legal costs would off [sic] been paid by the defendant MSS Security.
(d) Ms Taseska deposed that the files received by her did not contain any document called ‘Form A (Section 104A Conference Form)’, which are required to be completed at the conclusion of every mediation;
(e) Ms Taseska deposed that the notes apparently taken during meetings and mediations have been altered, and some are in such a bad state that only the authors could explain their contents. Accordingly, she needs to issue subpoenas to WorkSafe, CGU, Allianz, Thomson Geer Lawyers, Norman Fowler, Phillip Jewell, Anne Sheen, Mr Moore and others who were involved in the mediation of the personal injuries proceedings;
(f) she deposed that in order to find out how much has been paid for her impairment benefits the defendants must supply to her the trust ledgers for 2011 to date, as she has only received individual pages of the trust ledgers, and she needs to subpoena the auditor of the second defendant; and
(g) at paragraphs 48 and 49 of her affidavit, Ms Taseska deposed as follows:
I petition this Honourable Court to Book the proceedings for trial and allow me to issue subpoena and interrogation question to all that were involved in this cases (S CI 2011 03100 and S CI 2012 05455).
Also, I should be allowed to change my Statement of Claim, because I have sustained substantial financial losses due to the duty of care of the defendants Henry Carus & Associates and Henry Joseph Carus.
During the course of the hearing of the application, Ms Taseska handed up a small bundle of documents which were said to support the contentions in her affidavit. These included:
(a) an extract from an application made by the second defendant to Law Aid, which referred to the estimated quantum of damages for the stress claim of $700,000 to $770,000;
(b) the file note referring to the alleged ‘clean up’ of the file;
(c) a file note which had an altered figure on it, presumably being a note of what occurred at mediation;
(d) a file note of a discussion between ‘Amanda’ and Mr Carus, which includes the following:
Henry is not willing to say much at mediation. Def is not going to offer anything more than $720k for her psych claim. They will only [sic] fishing for information and we are not giving them anything.
(e) an extract of a form authorising surveillance on 10 October 2006, presumably a document created for or by the solicitors for MSS, which referred to the ‘estimated outstanding liabilities of this claim’ being $765,659.97; and
(f) an email from Mr Carus to Carolyn McInnes discussing the strategy for mediation and the statutory counter-offer that had been made on Ms Taseska’s behalf.
In his written outline of submissions, counsel for the defendants set out the test for summary judgment, noting that the test is now less stringent than prior to the enactment of the Civil Procedure Act 2010 (Vic). Counsel for the defendant also referred to the legal principles underpinning the doctrines of res judicata, issue estoppel, and abuse of process. He referred to the following extracts of the judgment of Dixon J in Blair v Curran:[4]
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue- estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
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, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. […] [T]he 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. […][5]
[4](1939) 62 CLR 464.
[5]Ibid 531-533.
The principles set out above are said to be relevant to the following aspects of Ms Taseska’s claims:
(a) the allegation that Ms Taseska suffered loss as a result of being denied the opportunity to accept the undisclosed offer is an abuse of process in the face of the decision of Wood AsJ on 26 June 2015 to the effect that Mr Carus had not acted improperly in failing to disclose the undisclosed offer;[6]
[6]This submission has in effect been superseded by the outcome of the personal injuries proceeding, which establishes as a matter of fact that Ms Taseska has not suffered any loss.
(b) the allegation that she has suffered the loss of the value of the stress claim, which has been the subject of a determination by J Forrest J and the Court of Appeal in the personal injuries proceedings;
(c) similarly, her claim that she should have received $503,000 for pain and suffering damages for the knee claim is also an abuse of process; and
(d) to the extent that Ms Taseska’s claims are based upon her not having access to her file, in the lien judgment, J Forrest J ruled that the defendants were entitled to maintain a lien over the file. Accordingly, Ms Taseska’s allegations that the defendants acted wrongfully in refusing to provide her file is an abuse of process.
As for the remainder of the claims in the proposed statement of claim, the defendants submitted as follows:
(a) Ms Taseska received a better outcome at trial than she would have had had she accepted the undisclosed offer;
(b) Ms Taseska’s claim for psychological/psychiatric injury cannot proceed given the determination of the medical panel;
(c) while the claim that the defendants failed to apply for a serious injury certificate with respect to past and future economic loss arising out of the knee claim, is logically arguable, the proposed statement of claim does not include any claim that Ms Taseska suffered any economic loss by reason of this matter. Counsel noted that in J Forrest J’s judgment in the personal injuries proceedings, his Honour stated that Ms Taseska continued working after the accident giving rise to the knee claim, and she only ceased work after the incident giving rise to the stress claim;
(d) in relation to her allegation that the defendants failed to amend her statement of claim, to the extent that the proposed amendment related to an alleged breach of duty on the part of MSS by returning her to inappropriate duties, J Forrest J dealt with it in his judgment, notwithstanding that it had not been pleaded; and
(e) in his oral submissions during the course of the hearing, counsel submitted that Ms Taseska had failed to properly articulate her claim with respect to impairment benefits, noting that no such claim was referred to in her proposed statement of claim.
Counsel for the defendants submitted that this proceeding could not be saved by re-pleading, and as such, ought to be dismissed.
Ms Taseska’s oral submissions at the hearing were relatively brief, and, heard in conjunction with the affidavit filed and served on her behalf, concerned the following matters:
(a) despite the fact that she had two years to prepare for trial after the termination of the retainer, she was hampered in her preparation by the defendants’ refusal to hand over her file. The defendants never had the permission of a judge to retain the file;
(b) the medical panel determination was flawed, because the defendants provided inaccurate documents to the medical panel;
(c) she believed there are relevant documents which have been removed from the defendants’ file. Given the reference in the file note to ‘cleaning up’ the file, she needs to issue subpoenas directed at obtaining documents concerning what happened at mediation; and
(d) there is an issue about whether any application was made by the defendants on her behalf for an impairment benefit. The documents show an amount was paid, so Mr Carus must have lied to the Court when he said in an affidavit that no application was made.
Counsel for the defendants submitted in reply that the defendants have handed over all documents that they have been ordered to produce. As for the validity of the medical panel determination, Ms Taseska’s application for an injunction to prevent the defendants from referring her to the medical panel was dismissed by Macaulay J on 15 April 2016. One of the grounds of Ms Taseska’s application was that the defendants had sent incorrect information regarding Ms Taseska’s medication regime: shortly after the issue of the application, the solicitors for the defendants sent a letter to the medical panel correcting the earlier error. Counsel for the defendants submitted that the reference to a ‘clean up’ of the file is not evidence of any collusive behaviour to remove relevant documents, and, as for Ms Taseska’s allegations that the defendants had withheld impairment benefits from her, this was not a claim in negligence.
Turning now to the issues in the application, I should say at the outset that no res judicata or issue estoppel arises by reason of the judgment of J Forrest J and the Court of Appeal in the personal injuries proceedings, as the defendants were not parties to those proceedings. The issue is rather, to the extent that Ms Taseska is seeking to in effect re-litigate the personal injuries proceeding, by claiming that, but for the negligent conduct of the defendants, she would have achieved a more successful outcome in the personal injuries proceedings, she is engaging in an abuse of process. Further, I do not accept that in the lien judgment, J Forrest J made findings concerning the defendants’ right to a lien over the file: rather, the lien judgment concerned the defendants’ application for a lien over the judgment sum awarded in the personal injuries proceedings. It may well be that if that issue had been before his Honour he would have made a finding that, by implication, the defendants were entitled to refuse to hand over the file, but in my view, no res judicata or issue estoppel applies.
In determining whether the maintenance of certain claims by Ms Taseska is an abuse of process in that they seek to impermissibly re-litigate the personal injuries proceeding, the following statements of the High Court in an authority relied upon by the defendants, Tomlinson v Ramsey Food Processing Pty Ltd[7] are relevant:
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.[8]
[7](2015) 256 CLR 507.
[8]Ibid [25]-[26] (citations omitted).
Counsel for the defendants also referred to the decision of the New South Wales Court of Appeal in O’Shane v Harbour Radio[9] (‘O’Shane’), a rather unusual case concerning whether, in a claim made by a judicial officer in a defamation proceeding, any attempt by the defendant to rely upon a defence of truth amounted to an abuse of process by virtue of potentially requiring the re-litigation of cases determined by that judicial officer. Beazley P (with whom McColl JA and Tobias AJA agreed), stated as follows:
[9](2013) 303 ACR 314.
There are a variety of circumstances in which it has been held that proceedings constitute an abuse of process and, therefore, should be stayed. In so far as is relevant to the present matter, it has been said that proceedings will be stayed as an abuse of process if it is intended to litigate anew a case which has already been disposed of by earlier proceedings. There may be an abuse of process even if the circumstances do not give rise to an estoppel: see Walton v Gardiner (1993) 177 CLR 378 at 393; 112 ALR 289 at 298; [1993] HCA 77 (Walton), citing, inter alia, Reichel v Magrath (1889) 14 App Cas 665 at 668 (Reichel). In Reichel Lord Halsbury said (at 668):
… it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again … There must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure …
In Walton, the plurality also endorsed the observation of Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536; [1981] 3 All ER 727 at 729, that a superior court had inherent power to stay proceedings to prevent a misuse of its procedure which “although not inconsistent with the literal application of its procedural rules, would nevertheless … bring the administration of justice into disrepute among right-thinking people”. The plurality observed that the same approach as to the scope of the power to stay proceedings had been taken by each of Mason CJ, Deane and Gaudron JJ in Jago v District Court (NSW) (1989) 168 CLR 23; 87 ALR 577; [1989] HCA 46 (Jago).
It is apparent from the judgments of Mason CJ, Deane and Gaudron JJ in Jago that central to the question of abuse of process is the “public interest in the due administration of justice” and the public interest “in the maintenance of public confidence in the administration of justice”: see Mason J at CLR 30; ALR 581, citing the New Zealand Court of Appeal in Moevao v Department of Labour [1980] 1 NZLR 464 at 481. Gaudron J (at CLR 74; ALR 613) referred to the court’s inherent power to control its own processes, noting that the classes of case where the court should do so was not closed and that the court may exercise its inherent powers “as and when the administration of justice demands”.[10]
[10]Ibid [99]-[101].
Beazley P also referred to with approval the decision of Giles CJ Comm D in State Bank of New South Wales Ltd v Stenhouse,[11] as follows:
State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Rep ¶81-423 (64,077) (Stenhouse) involved an attempted re-litigation of an issue that had already been decided between the plaintiff and a third party in an earlier proceeding. Factors considered, at 64,089, by Giles CJ Comm D in determining whether there was an abuse relevantly included: the importance of the issue in and to the earlier proceedings; the terms and finality of the finding as to the issue sought to be relitigated; the identity between the relevant issues in the two proceedings; the extent of the oppression and unfairness to the other party if the issue is relitigated, the impact of the re-litigation upon the principle of finality and on the public confidence in the administration of justice; as well as the overall balance of justice between the parties.[12]
[11](1997) Aust Torts Reports 81–423.
[12]O’Shane [106].
Accordingly, to the extent that Ms Taseska seeks, in effect, to re-litigate her claims in the personal injuries proceedings, that may well be an abuse of process, notwithstanding that the defendants were not parties to the personal injury proceeding.
In the light of the above, and turning now to the question of whether Ms Taseska’s claims have any real prospects of success, I find as follows:
(a) insofar as Ms Taseska’s claims relate to the defendants’ failure to disclose the undisclosed offer, I agree that by reason of the outcome of the personal injuries proceeding, Ms Taseska has suffered no loss by reason of the loss of the opportunity to accept the undisclosed offer. As such, her claims in that regard have no real prospects of success. Further, by reason of the passage of events, it is not necessary for me to determine whether an issue estoppel arises out of the decision of Wood AsJ on 26 June 2015;
(b) I agree that Ms Taseska’s claim for psychological and/or psychiatric injury said to have arisen out of the defendants’ conduct is not capable of being pursued by reason of the determination of the medical panel. I do not accept Ms Taseska’s submissions that the medical panel decision was somehow invalid. She is bound by the determination of the medical panel;
(c) insofar as Ms Taseska’s claims focus upon the conduct of the defendants in preparing the case for trial (including, among other things, their failure to make a serious injury application in respect of past and future economic loss, and their refusal to hand over the file) it is not possible, in the absence of a proper pleading, to conclusively identify whether Ms Taseska’s claims are an abuse of process; and
(d) in relation to the question of Ms Taseska’s claims with respect to impairment benefits, the evidence is a little confusing. It is unclear whether Ms Taseska is alleging that impairment benefits were paid by the insurer, but she never received the money, or that she should have received a greater payment if the defendants had not breached their duty, or both? Once again, a proper pleading will illuminate matters.
This is not a case such as Knorr v CSIRO & Ors (No 3)[13] where the Court ought reach the view that the plaintiff is incapable of preparing a pleading disclosing a real cause of action, at least not at this stage. Further, in the absence of any res judicata or issue estoppel, the Court must be cautious to dismiss a proceeding on the grounds that it is an abuse of process in the absence of some real clarity about the conduct is said to have caused the plaintiff loss and damage.
[13][2012] VSC 529.
As stated by Beazley P in O’Shane:
The authorities also state that the power to stay proceedings permanently on the ground that they are an abuse of process should be exercised with caution: Moore v Inglis (1976) 9 ALR 509 at 516; 50 ALJR 589 at 593 and only in the most exceptional or extreme case: Walton at CLR 392; ALR 298 per Mason CJ, Deane and Dawson JJ (approving the Court of Appeal’s formulation of the test in Gill v Walton (1991) 25 NSWLR 190). The onus of satisfying the court that there is an abuse of process lies upon the party alleging it and that the onus is “a heavy one”: Williams v Spautz (1992) 174 CLR 509 at 529; 107 ALR 635 at 649; [1992] HCA 34 per Mason CJ, Dawson, Toohey and McHugh JJ.[14]
[14]O’Shane [111].
While it is possible, from the terms of the proposed amended statement of claim and the affidavit in support of her application, to form the impression that Ms Taseska does seek to re-litigate the personal injuries proceeding, there needs to be much greater clarity by Ms Taseska as to how she actually puts her case (albeit recognising the particular burden she suffers as a self-represented litigant). Only then is it possible to identify with the requisite degree of satisfaction that the conduct is so closely connected with the conduct of a concluded trial such as to give rise to, say, a defence of advocate’s immunity, or, that by seeking to re-litigate the outcome of a concluded proceeding, that allowing the claim to continue would bring the administration of justice into disrepute, and therefore the claim is an abuse of process.
To illustrate this in more detail, I would make the following observations concerning Ms Taseska’s claims:
(a) in relation to the knee claim, Ms Taseska would need to make an allegation that the defendants’ failure to make an application for a serious injury certificate with economic loss was negligent, and Ms Taseska would need to identify how, if they had made such an application, she would have received an award of damages for economic loss at the trial of the personal injuries proceedings. That then raises the question of whether bringing such a claim would amount to an abuse of process by reason of J Forrest J’s observations in his judgment concerning her ongoing attendance at work after the injury;
(b) also in relation to the knee claim, Ms Taseska would need to show how the conduct of the defendants, in particular, the failure of the defendants to properly prepare her case, including amending her statement of claim, and their failure to provide her with the file, caused her to only receive $250,000 in general damages rather than $503,000. I should add at this point that while I will allow Ms Taseska to prepare a proper pleading of this allegation, it is very likely that making this claim will amount to an abuse of process, given that J Forrest J squarely dealt with this question at the trial of the personal injury proceedings; and
(c) in relation to the stress claim, Ms Taseska must explain in her pleading, given that J Forrest J dismissed the stress claim, how any failure on the defendants’ part caused her to lose on that claim. In other words, Ms Taseska must explain, in some degree of detail, how, if the defendants had acted differently, including making any amendment to the statement of claim, she would have been successful in the stress claim at trial; and
(d) for completeness, and at the risk of repetition, it is necessary for Ms Taseska to go further than making broad allegations against the defendants such as ‘the statement of claim was not written correctly’, but to specify more clearly exactly what was done, or not done, and how that affected Ms Taseska’s ability to present her case, and, what the impact of her inability to properly present her case was on the result.
To elaborate further on the above, inherent in the proposed amended statement of claim and Ms Taseska’s affidavit is an allegation that if the defendants had not been negligent in preparing for trial (whether it be by failing to make an application for serious injury certificate for economic loss in respect of the knee claim, or by failing to make a more timely application to amend her statement of claim), Ms Taseska would have achieved a better outcome at the trial of the personal injuries proceedings than she did. The proposed amended statement of claim fails to make the necessary connection between the defendants’ alleged conduct and her failure to achieve what she says is the full value of her claims in the personal injury proceeding.
As for Ms Taseska’s allegations with respect to impairment benefits, as noted above, her evidence is confusing. If it is simply a matter of her alleging that the defendants failed to pass on payments made by the insurer to them on her behalf, then that is a simple ‘money had and received’ claim more suitable to the Magistrates’ Court than this Court. If the allegation is that the defendants negligently failed to make a claim for impairment benefits on her behalf, or should have made a claim for a higher amount of impairment benefits, then this should be clearly spelt out.
Accordingly, I will strike out the statement of claim, and enter judgment for the defendants in respect of any claims by Ms Taseska in respect of the defendants’ failure to disclose the undisclosed offer, and any claim for psychological and/or psychiatric injury arising out of the defendants’ conduct. As such, there is no need for Ms Taseska to have leave to file subpoenas and obtain documents concerning what occurred at mediation.
I will make the following orders:
1. The statement of claim dated 3 September 2015 be struck out.
2. There be judgment for the defendant in relation to the claims in relation to and said to arise out of the failure of the defendants to disclose to her the undisclosed offer (‘undisclosed offer claims’), and the claims for psychological/psychiatric injury by reason of the conduct of the defendants (‘psychiatric injury claims’).
3. The plaintiff’s application by her summons filed on 16 January 2017 to file and serve an amended statement of claim in the form which is exhibit ‘MKC‑4’ to the affidavit of Michael Kevin Cain sworn 27 January 2017 is refused.
4. Any application by the plaintiff to file and serve an amended statement of claim must be filed and served by 13 April 2017, and must:
(a) not include the undisclosed offer claims and the psychiatric injury claims;
(b) in relation to any claims for the loss of the value of the stress claim and the loss of value of the knee claim (including any failure to apply for a serious injury certificate with economic loss), specify what conduct of the defendants was said to be negligent, and how that conduct affected the outcome of each of the stress claim and the knee claim; and
(c) in relation to the allegations concerning the payment of impairment benefits, specify whether it is alleged that the defendants have failed to pass on impairment benefits payable to her, or whether the defendants failed to obtain higher benefits, or both?
5. For the avoidance of doubt, these orders and the reasons delivered this day do not preclude the defendants from asserting that Ms Taseska’s claims should be dismissed (or not allowed to proceed, as the case may be) on the grounds that they are an abuse of process.
6. The plaintiff’s summons filed 16 January 2017, and the defendants’ amended summons filed 27 January 2017 be otherwise dismissed.
---
3
3
0