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West v Jackson McDonald (A Firm)

West v Jackson McDonald (A Firm)

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WEST & ORS -v- JACKSON MCDONALD (A FIRM) [2001] WASC 198

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 198
Case No:	CIV:2258/1994	Heard:	9 & 10 MAY 2001
Coram:	McKECHNIE J	Delivered:	1/08/01
No of pages:	29	Judgment Part:	1 of 1
Result:	Leave to amend refused Liberty to bring fresh summons to plead breach of fiduciary duty Order for security for costs
Category:	B
PDF Version

Parties:	STEPHEN MARK WEST DIANNE ELIZABETH WEST EDEN BAY PTY LTD (ACN 009 377 075) JACKSON MCDONALD (A FIRM)
Catchwords:	Abuse of process Proposed statement of claim Whether inconsistent with findings in earlier case Defendant not a party to earlier case Whether issue estoppel Improper purpose Whether evidence required Security for costs Plaintiffs funded by strangers Whether order appropriate
Legislation:	Trade Practices Act 1974 (Cth) Rules of the Supreme Court 1971, O 36 r 10
Case References:	Blair v Curran (1939) 62 CLR 464 Corporate Farming Pty Ltd v Eden Bay Pty Ltd & Ors, unreported; SCt of WA (Murray J); Library No 920019; 28 January 1992 Cox v Journeaux (No 2) (1935) 52 CLR 713 Davey v Ron Farris Real Estate Pty Ltd & Anor [2000] WASCA 58 Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 Hunter v Chief Constable of Westlands Midlands Police [1982] AC 529 Jackson v Goldsmith (1950) 81 CLR 664 Knight v FP Special Assets Ltd (1992) 174 CLR 178 McKechnie v Campbell (1996) 17 WAR 62 Port of Melbourne Authority v Anshun Proprietary Limited (1980-81) 147 CLR 589 Printing Telegraph and Construction Company of the Agence Havas Ltd v Drucker [1894] 2 QB 801 R v Storey (1978) 140 CLR 364 Reichel v Magrath [1889] 14 App Cas 665 Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 Williams v Spautz (1992) 174 CLR 509 Bahr v Nicolay (No 1) (1987) 163 CLR 490 BPM Pty Ltd v HMP Pty Ltd (1996) 14 ACLC 857 Brundza v Robbie & Co (No 2) (1952) 88 CLR 171 Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 District Court of New South Wales (1989) 168 CLR 23 Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431 Fieldrank Ltd v E Stein [1961] 1 WLR 1287 Gentry Brothers Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405 Harpur v Ariadne Ltd (1984) 2 ACLC 356 Jago v Harpur & Ors v Ariadne Australia Ltd & Ors (1984) 2 ACLC 356 Joye v Rehuxo [1999] NSWSC 1064 Kiely v Beneficial Finance Corporation (1991) 6 WAR 521 Knight v F P Special Assets Ltd (1992) 174 CLR 178 Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212 Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 Morgan v Banning (1999) 20 WAR 474 Packer v Meagher [1984] 3 NSWLR 486 R v Hall [1973] 1 All ER 1

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] WASC 198
Decision Date

CaseChat Overview and Summary

The case involves a dispute between Stephen Mark West, Dianne Elizabeth West, and Eden Bay Pty Ltd (plaintiffs) against Jackson McDonald (a firm of solicitors) (defendant). The plaintiffs sought to substitute a fresh statement of claim, which the defendant opposed on the basis that the action was an abuse of process. The plaintiffs also sought leave to bring a fresh summons to plead breach of fiduciary duty, and the defendant sought an order for security for costs. The Supreme Court of Western Australia heard the matter and delivered a judgment on August 1, 2001.

The court found that the proposed statement of claim constituted an abuse of process due to the inconsistencies between the findings in an earlier case and the pleaded cause of action, as well as the length of time that had passed since the events in question. The court refused leave to substitute the proposed statement of claim but granted the plaintiffs liberty to bring a fresh summons to plead breach of fiduciary duty.

Regarding the application for security for costs, the court found that the plaintiffs were likely unable to pay any costs if the defendant was successful in its defence. The court considered the possibility of litigation funders who might benefit from the action and ordered security for costs in respect of all plaintiffs. The court also allowed the parties to determine the precise amount and terms of the security for costs.

Orders