Todd v Novotny - [2000] WASC 308

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: TODD -v- NOVOTNY & ANOR [2000] WASC 308

CORAM: PARKER J

HEARD: 21 NOVEMBER 2000

DELIVERED : 15 DECEMBER 2000

FILE NO/S: CIV 2281 of 1996

BETWEEN: ROBERT JOSEPH TORRANCE TODD
Plaintiff
AND
MICHAEL NOVOTNY
First Defendant
BACKLOAD PTY LTD (ACN 009 451 192)
Second Defendant

Catchwords:

Practice and procedure - Mareva injunction - Renewed application - Additional evidence relied on - Not fresh evidence - Whether an abuse of process

Legislation:

Nil

Result:

Application not an abuse of process
Hearing to proceed

Representation:

Counsel:

Plaintiff:     Mr M J McCusker QC & Mr P A Tottle
First Defendant             :     Mr M H Zilko
Second Defendant         :     Mr M H Zilko

Solicitors:

Plaintiff:     Tottle Christensen
First Defendant             :     Williams & Hughes
Second Defendant         :     Williams & Hughes

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

Brimaud v Honeysett Instant Print Pty Ltd, unreported; SCt of NSW (McLelland J); 19 September 1988
D A Christie Pty Ltd v Baker [1996] 2 VR 582
Nominal Defendant v Manning [2000] NSWCA 80

Case(s) also cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Amalgamated Television Services v Marsden [1999] NSWCA 313
Austen & Butta Ltd v Shell Australia Ltd (1992) 10 ACLC 610
Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 All ER 745
Christmas Island Resort Pty Ltd v Casinos International (Christmas Island) Pty Ltd, unreported; SCt of WA; Library No 960641; 8 October 1996
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334
Collier v Howard, unreported, SCt of NSW (McLelland CJ in Eq); 23 April 1996
Darling Harbourside (Sydney) v Sanririse Pty Ltd, unreported; Fed C of A; 17 May 1996
Derby & Co v Weldon (Nos 3 & 4) [1989] 2 WLR 412
Earthline Constructions Pty Ltd v State Rail Authority of NSW, unreported; CA SCt of NSW; 26 October 1992
Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49
Guss v Magistrates Court of Victoria [1998] 2 VR 113
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Kermode v John Fairfax Publications Pty Ltd [2000] NSWSC 124
Mitchell v Saengjan (1994) 117 FLR 273
Patterson v BTR Engineering (Aust) Pty Ltd (1989) 18 NSWLR 319
Perth Mint v Mickelberg [1985] WAR 117
Santos & Associates v Glowtime Pty Ltd [2000] WASC 58
Tae Hyun Kim v Melton Wool Pty Ltd [1999] VSC 52
Uniflex (Aust) Pty Ltd v Hanneybel, unreported; SCt of WA (White J); Library No 98046; 17 August 1998
Ward v The State of Western Australia, unreported; Fed C of A (Carr J); 14 May 1997
Wentworth v Rogers, unreported; SCt of NSW (Sperling J); 28 April 1995

PARKER J: By summons filed on 13 November 2000 the plaintiff seeks an asset preservation order, or Mareva injunction, pending the trial of this action. This is opposed by the defendants.
The action has been on foot now for some four years and with much interlocutory skirmishing it is proceeding somewhat slowly towards trial. Some evidence may soon be taken on letters rogatory in Canada.
On 8 November 2000 I had heard and dismissed a similar application after a defended hearing involving the same parties. The order then sought was in essentially the same terms as that now pursued by the plaintiff. In the extempore reasons which I gave on 8 November 2000 I dismissed the application because the plaintiff had failed to establish an arguable case that there existed, at the relevant times, a fiduciary relationship between the plaintiff and the first defendant. This was an essential element of the plaintiff's claim in the action.
The plaintiff, by his pleaded case in the action which he sought to support in the application heard and determined on 8 November 2000, claims that such a fiduciary relationship existed over a number of years by virtue of an oral partnership between the plaintiff and the first defendant. It is the plaintiff's case that he and the first defendant were the only partners in the partnership. This is the pleaded case and was deposed to in an affidavit of the plaintiff sworn in July 2000 in support of the first application. Even though the partnership for which the plaintiff contended was said to have been in existence over several years and to have governed the relationship of the plaintiff and the first defendant in a variety of substantial international commercial ventures and dealings, nothing was offered in support of the existence and terms of the partnership apart from the deposed assertion by the plaintiff of its existence, albeit in somewhat imprecise terms, and one facsimile message said to have been sent by the first defendant in January 1994, although dated 1993, to a person in the United States. The terms of that message included a statement "I am in Jakarta at present with Laurie and our third partner, Dr Robert Todd". Accepting that this afforded some evidence from which it could be concluded against the first defendant that a partnership existed at that time, a partnership which included the plaintiff and the first defendant, it was nevertheless apparently a reference to a partnership of three persons. The plaintiff's pleaded and deposed to case was of a partnership of only two persons, the plaintiff and the first defendant.
The first defendant, in an answering affidavit dated 8 September 2000 in the first application, denied the existence of the partnership alleged by the plaintiff. The plaintiff did not respond to this denial or seek to adduce additional evidence as to the existence or terms of the partnership for the purposes of the first application. It was in those circumstances that I was not persuaded on the hearing of the first application that the plaintiff had made out an arguable case that there was a partnership as alleged, so as to give rise to the fiduciary duty on which the claim of the plaintiff in the action depended. The first application was therefore dismissed.
In the present application, by affidavit of the plaintiff sworn 13 November 2000, the plaintiff seeks to rely on a substantial body of additional documentary evidence, principally facsimile communications for the most part of the first defendant over a period between February 1993 and the commencement of the action in 1996, and indeed also on some documents dated after the commencement of the action. Without dealing in detail with the nature of this correspondence, and despite recognising that it may give rise to a number of issues, I accept for the moment that it would be sufficient to demonstrate the existence of an arguable case that there was, at the relevant time, a partnership between the plaintiff and the first defendant as the plaintiff contends.
While this additional material was not before me on the hearing of the first application it was, in every case, material then in the knowledge and possession of the plaintiff and also of the plaintiff's solicitors. Most of it had been discovered in the action in June 1997 or February 1998. Hence, it was that the plaintiff's solicitors also had copies. The first application was not commenced by the plaintiff until 28 July 2000. None of this additional material is therefore "fresh" evidence in any relevant sense.
The defendants object that this further application is a blatant attempt by the plaintiff to relitigate an issue which was decided against him on 8 November 2000 in the absence of fresh evidence or the emergence of some other material change of circumstances since the first application. (This is not a case in which fraud has any relevance). It is a case, in the defendants' submission, where the plaintiff seeks to relitigate the issue simply in the hope of making good a deficiency which had been found in the way he chose to present his case on the first application.
The defendants rely on many decisions, but in particular the decision of the Victorian Full Court in D A Christie Pty Ltd v Baker [1996] 2 VR 582 and Brimaud v Honeysett Instant Print Pty Ltd, unreported; SCt of NSW (McLelland J); 19 September 1988. In Brimaud, McLelland J stated the following principle (as noted by Mason P in Nominal Defendant v Manning [2000] NSWCA 80 at [11]):
"In the present case I am dealing with an interlocutory order of a substantiative nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary Rule of Practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application …"
In D A Christie Pty Ltd v Baker the applicant had failed to commence a claim for damages for personal injuries within a statutory limitation period. A first application for an extension of the time so limited was dismissed on 15 December 1993 because of "the length of delay and in particular the unexplained delay between November 1992 and August 1993". The applicant did not appeal from that decision but, by summons dated 28 February 1994, made a further application. In support of the further application the applicant sought to rely on three further affidavits directed to explaining the delay that had occurred between November 1992 and August 1993. The second application succeeded. On appeal, the Full Court, Brooking and Hayne JA, Charles JA dissenting, held that the second application should have been stayed as an abuse of process. Charles JA in dissent considered it was illogical to treat the second application as an abuse of process even though the material in the three affidavits did not satisfy the fresh evidence test as, under the relevant rules, had the applicant appealed from the first decision he could have sought to rely on that material without having to satisfy the fresh evidence test.
Hayne JA (as he then was), after discussing at 602-603 policy considerations relevant to the due administration of justice raised by repeated applications, went on to say at 603-604:
"But it is also clear that there can be an abuse if 'notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings': Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ; see also Rogers v R [(1994) 181 CLR 251 at 273]; Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536; Moevao v Department of Labour [1981] NZLR 464 at 481.
If an applicant for an extension of time were to fail in one application but then at once institute a second application relying on precisely the same material, there would appear to be powerful reasons to conclude that the second application was vexatious. On its face the applicant in this matter, Baker, filed further material intended to deal with a gap in the material that had been identified by the judge in his reasons for judgment dismissing the first application. Nevertheless, I am of the view that the second application was properly classed as an abuse of process. The additional material which it was sought to put forward was all material which was available to Baker at the time of the first application. No explanation was proffered for why that material was not put forward at the time of the first application and for present purposes I assume that it was omitted through oversight or neglect.
Thus, the 1994 application required Christie to meet precisely the same kind of application that it had succeeded in resisting in 1993. Christie had succeeded in 1993 because Baker had not satisfactorily explained the delay that had occurred. The new material was all directed to explaining that delay."
And at 605 his Honour continued:
"Consideration of the private interest of a respondent to an application under s 23A in having certainty on the question whether action may be brought against it notwithstanding the expiration of the relevant limitation period, together with consideration of the important public interest in ensuring that judicial determinations are binding, final and conclusive and that there should not be conflicting decisions on the same issue lead me to the view that the circumstances in which second applications under s 23A may be made after dismissal of an earlier application are limited. So far as presently relevant the limitation is to be imposed by an application of principles concerned with abuse of process and in at least most cases may be resolved by concluding that a second application is an abuse unless there is proof of fraud or it is sought to adduce fresh evidence, 'fresh', that is, in the sense in which that expression is used in connection with the admission of evidence on appeals."
The plaintiff submitted, however, I should not apply D A Christie Pty Ltd v Baker but instead should follow the decision of the New South Wales Court of Appeal, Heydon JA and Foster AJA, Mason P dissenting, in Nominal Defendant v Manning [2000] NSWCA 80 which held that no general rule precluded repeated applications without fresh evidence for an interlocutory order for an extension of time within which to commence an action under s 52(4) of the Motor Accidents Act (NSW) as it applied in 1989.
After an extensive consideration of authority Heydon JA at [70] - [73] declined to apply the view of the majority in D A Christie Pty Ltd v Baker saying at [72]:
"Nothing in the above reasoning rejecting the Nominal Defendant's submission is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in a second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate failure to tender evidence is extremely risky. The Nominal Defendant's proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 602-3 - the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs - and others - damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily - are evils which each court in its individual discretion will rightly strain to avoid."
His Honour added at [73]:
"Further, while in Henricks v Agnew (1997) 26 MVR 277 at 286 this Court questioned whether the applicant's blamelessness for delay was relevant on the issue whether a just and fair trial was possible, it would appear to be relevant to whether a second application to extend time should be permitted in the sense that blameworthiness would tell against the applicant and blamelessness may tell in favour of the applicant. Thus the reasons why the first application failed may have nothing to do with the applicant personally: the applicant's legal representative may have been incompetent, or may have been ill or unavoidably absent; a vital witness may have been prevented from attending or may, contrary to all legitimate expectations, have failed to attend or to come up to proof; evidence may have been rejected because of defective service which was not the fault of either the applicant or the applicant's legal representative. The possible factors which might cause failure in the first application but which might be capable of remedy in a second are wide in range. The position for which the Nominal Defendant contends must be rejected because it does not allow for an evaluation of any of them."
Foster AJA also declined to follow the majority view preferring at [122] the reasoning of Charles JA in D A Christie Pty Ltd v Baker.
Mason P in dissent, however, at [10] - [11] identified as a "Rule of Practice" the statement from the decision of McLelland J in Brimaud noted earlier in these reasons and went on to say:
"There will be cases in which the attempt to revisit a contested interlocutory application without change of circumstances or genuinely fresh evidence will not amount to an abuse of process. For example, the opposition to an application for an interlocutory injunction on the first return of the motion may be of such a perfunctory nature on both sides that an attempt to revisit the issue at the interlocutory stage would not be an abuse of process even if the evidence were accessible to the defendant on the first occasion. One can also conceive of situations where the revisiting of a legal proposition adopted or assumed in an earlier interlocutory hearing would not constitute an abuse of process. For example, new and unexpected appellate authority may have arrived on the scene.
To concede that there may be exceptions to the rule of practice does not mean that there is no general rule. Nor does it mean that the rule of practice is a matter of pure discretion. Nor does it mean that cases falling within the letter and spirit of the rule of practice are any less abuses of process. The present case falls squarely within the ambit of the rule of practice.
I agree with the reasoning of Hayne JA in Christie. Subject to possible and presently irrelevant exceptions, the principle expressed as "the ordinary rule of practice" in Brimaud means that an attempt to evade that principle in a second substantive interlocutory application is an abuse of process. Once the Court detects this and satisfies itself that the case falls within the letter and spirit of the rule of practice then the application should be dismissed.
If there is no principled general rule then there will be an area of pure judicial discretion. I prefer to avoid this if possible, if only because it lends itself to the perception that the persistent applicant's rights vary from judge to judge and, in the final analysis, depend upon no pre-existent principle."
At [24] - [31] Mason P was not prepared to follow the reasoning of Charles JA in the Victorian decision.
Each of these decisions concerned an extension of time to commence proceedings. Thus the dismissal of the interlocutory application had the practical effect of precluding the applicant from pursuing the right of action which he contemplated. It put an end to the litigation. By contrast, the present application does not inhibit the applicant's right to pursue his claim to judgment. It is an application to guard against the possibility that he might be denied the fruits of his action by virtue of a dissipation of the assets of the defendants pending trial.
In this respect, I note that in D A Christie Pty Ltd v Baker at 604 - 605 Hayne JA drew attention to the potential relevance for present purposes of the nature of the application when he said:
"It may be accepted that different considerations arise in identifying principles to be applied in determining appeals from those that are properly applied in disposing of proceedings at first instance. Especially may that be so in cases of the kind described by Barwick CJ in Hall's case [Hall v Nominal Defendant (1966) 117 CLR 423] as being 'under the control of and generally within the discretion of the court in which the action is brought', if only because interlocutory applications of that kind are no more than steps taken incidentally along the way in determining an action brought to resolve finally the rights of parties."
And further at 605 Hayne JA referred back to such interlocutory applications when he said:
"Whether the same considerations apply to interlocutory applications of the kind I have mentioned earlier - those under the control of and generally within the discretion of the court in which the action is brought - is not a matter I have to decide. Nothing I say here should be read as deciding whether the renewal of such an application is an abuse of process." (emphasis added)
This express reservation by Hayne JA seems directly applicable to the present application.

The plaintiff has sought to explain the failure to adduce the additional evidence now tendered when the first application was heard. He is a resident of Singapore. He deposes he was in England at the time he swore his affidavit in support in July 2000 so that he did not then have access to his documents or to the defendants' discovered documents. He does not depose, however, to the period he spent in England or to the extent to which he was involved in the process of instructing for, and preparation of, the application. It is frankly accepted by the partner handling this matter in the firm of the plaintiff's Perth solicitors that he had copies of all the relevant documents which are now sought to be relied on when the first application was prepared. It is said that while he knew there was a great deal of evidence of a partnership readily to hand, a professional judgment was made without full consultation with the plaintiff that the one document proffered in support of the first application would be sufficient to support that aspect of the plaintiff's case.
I also note that no attempt was made on the part of the plaintiff to respond to that part of the affidavit of the first defendant which was sworn on 8 September 2000 in which the first defendant expressly denied the alleged partnership. A number of further affidavits and countering affidavits were prepared and sworn before the hearing of the first application on 8 November 2000, but while the plaintiff sought for his part to deal with a number of matters raised by the defendants on affidavit no attention was paid to the denial of the partnership. There is no specific attempt in the plaintiff's case on this present application to explain this omission (save the professional judgment mentioned in the last paragraph). Further, even though some additional affidavit evidence, which the plaintiff sought to adduce on the first application outside the procedural times which had been ordered by a Master, was not allowed to be read on 8 November 2000 because the defendants were embarrassed by the short notice of that additional evidence, the plaintiff chose to proceed with the application on 8 November 2000 rather than to seek an adjournment to enable his evidence to be completed and to allow the defendants further time to adequately consider and respond to that late evidence. As already indicated none of this late evidence concerned the issue of the existence of the partnership but it does indicate a conscious decision on the part of the plaintiff who was present on 8 November 2000 to press on with the first application on the basis of the evidence then before me.
Given these factual circumstances and the level of controversy as to the appropriate approach in law, the present application poses a difficult question. As indicated earlier in these reasons, it seems to me that the decision of Hayne JA in D A Christie Pty Ltd v Baker expressly reserves the position of an interlocutory applications such as the present from the general rule favoured by his Honour. The formulation of the rule of practice propounded by McLelland J in the Brimaud decision, on which the defendants also rely, is expressly directed to interlocutory orders of a substantiative nature, although there is no elaboration which makes clear whether an application for a costs preservation order is within his Honour's appreciation of such an order. The formulation of Sperling J in Wentworth v Rogers, which Mason P in Nominal Defendant v Manning at [12] did not see to involve any material difference from the formulation of McLelland J in Brimaud, referred initially to interlocutory orders made after a hearing inter partes but went on to regard the rule of practice as "a general rule … particularly where the application is designed to finalise the principal proceedings, such as an application for summary judgment or for a permanent stay". While this formulation does not confine its possible application to such applications designed to finalise the principal proceedings it appears to contemplate that the rule of practice might more readily not be applied to some other interlocutory applications. The view of the majority in Nominal Defendant v Manning would appear to leave it open as a matter of general discretion whether or not to allow a renewed interlocutory application.
Given this state of authority I would not regard it as settled that a second application, of the type and in the circumstances which I am now considering, necessarily attracts the rule of practice that it should be treated as an abuse of process. I would regard it as open to me, however, as a matter of discretion to dismiss the second application. In exercising that discretion it is appropriate inter alia to take into account whether the failure to adduce the additional evidence now relied on when the first application was made is satisfactorily explained as well as the various matters which tell against the relitigation of an issue which has already been fully argued and judicially determined between the same parties, even if only in an interlocutory hearing. These include the risk of conflicting decisions, unnecessary vexing of respondents, judge-shopping, the diminution of certainty in the conduct by respondents of their affairs, the potential harm to public confidence in the integrity of judicial decisions, and the unnecessary expenditure of time and money which relitigation involves; cf Nominal Defendant v Manning at [72].
On that basis, this appears to be a case where there was sufficient evidence to establish an arguable case of a partnership, well known to the parties and their legal advisers and indeed in their respective possessions at the time of the first application, from which, as a matter of judgment the plaintiff's legal adviser chose but one example, an example that was affected by the significant deficiency identified much earlier in these reasons. While the plaintiff could have sought to supplement the evidence upon which he relied in respect of this element of his case, his attention and that of his legal advisers appears to have been directed to other issues relevant to the application which were the subject of hot dispute. Hence, in the first application the failure to adduce the additional evidence which the plaintiff now relies on was a matter of oversight and error of professional judgment which has been frankly disclosed. This occurred in circumstances where all parties and their legal advisers were well aware in the possession of all parties there existed a body of evidence which could make good the required arguable case on that issue.
Although the considerations are finely balanced, and having regard in particular to the nature and purpose of the application, it appears to me preferable not to regard this second application as an abuse of process. That is not to suggest that in different circumstances a second application might not properly be regarded as an abuse of process or that applications of this nature might repeatedly be brought until all objections are eventually overcome; cf Nominal Defendant v Manning at [124]. I confine my decision to this second application in the particular circumstances revealed in this case.
That position having been reached, the defendants have further submitted that it is necessary for them to have further time to respond adequately to the additional evidence now relied on by the plaintiff. In particular, it is submitted there is a need to provide more complete and adequate references to a number of the documents now relied on and also to adduce what they submit is substantial additional material which would demonstrate that, despite the additional evidence now relied on by the plaintiff, there is not an arguable case of a partnership. I accept the defendants did not have adequate time to assemble and present their evidence in this respect and that an adjournment for these purposes is appropriate.
I will hear counsel as to the time necessary before the application is brought on again.