Williams t/a J J Williams and Williams v Callegari

[1999] QCA 134

IN THE COURT OF APPEAL	99.134
SUPREME COURT OF QUEENSLAND

Appeal No 6570 of 1998

Brisbane

[Williams v Callegari]

BETWEEN:

JOHN JOSEPH WILLIAMS trading as

J J WILLIAMS & WILLIAMS

(Defendant) Appellant

AND:

CAMILLO CALLEGARI

(Plaintiff) Respondent

Davies JA
McPherson JA

White J

Judgment delivered 20 April 1999

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPEAL ALLOWED WITH COSTS. APPLICATION BY RESPONDENT FOR

CERTIFICATE UNDER APPEAL COSTS FUND ACT 1973 REFUSED.

CATCHWORDS:	PRACTICE - Defence - striking out - estoppel - original personal injuries action dismissed as statute-barred - whether appellant bound by findings of trial judge as to negligence and date of injury when not a party to the original action - whether appellant bound by agreement as to damages when not a party to the agreement.
Blair v Curran (1939) 62 CLR 464 Mickelberg v Director of Perth Mint [1986] WAR 365 Ramsay v Pigram (1967-1968) 118 CLR 271
Counsel:	Mr S L Doyle SC, with him Mr P Matthews, for the appellant Mr P R Dutney QC, with him Mr C A White, for the respondent
Solicitors:	Quinlan Miller & Treston for the appellant Nehmer McKee & Partners for the respondent
Hearing Date:	26 March 1999

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 6570 of 1998

Brisbane

Before Davies JA
McPherson JA
White J

[Williams v Callegari]

BETWEEN:

JOHN JOSEPH WILLIAMS trading as

J J WILLIAMS & WILLIAMS

(Defendant) Appellant

AND:

CAMILLO CALLEGARI

(Plaintiff) Respondent

REASONS FOR JUDGMENT - DAVIES JA

Judgment delivered 20 April 1999

1. This is an appeal from a judgment of a Supreme Court judge in chambers striking out parts

   of a paragraph in a defence. The facts relevant to this appeal are as follows.

2. The respondent sued his employer for damages for personal injuries by writ issued 12 May

   1987. The appellant had been the respondent's solicitor in that action up to and including the time

   when the writ was issued but ceased to act for him shortly thereafter. The action was dismissed

   after a trial on 27 February 1997 on the ground that it was statute barred. In the action damages

   had been agreed at $203,401.18 and the learned trial judge found that the employer's negligence

   caused the respondent's injuries.

3 The respondent then instituted the proceedings the subject of this appeal alleging that the
appellant failed to issue the writ against his employer until 12 May 1987 causing his claim to become

statute barred. In his statement of claim he alleged the matters contained in the preceding paragraph

and also the fact that an appeal to this Court from the judgment dismissing the action against his

employer was also dismissed.

1. In paragraph 2 of his defence, the appellant admitted certain matters but did not admit that

   the respondent's damages were in the sum of $203,401.18 or that his injuries were caused by the

   negligence of his employer or that the injury occurred more than three years before the issue of the

   writ. It was these non admissions which the learned primary judge struck out and it is from the

   order striking these out that this appeal is brought.

2. The questions were and are whether the appellant is bound in this action by the factual basis

   for the judgment in the previous action that the action was statute barred, by the finding of

   negligence against the employer in the previous action and by the agreement in the previous action

   that the respondent's damages were $203,401.18. In its reply in this action the respondent pleaded

   that the appellant was estopped from challenging these matters because they had been judicially

   determined in the previous action. Before this Court, however, the respondent did not seek to

   sustain the judgment striking out these non-admissions on the basis of estoppel but rather on the

   basis upon which the learned primary judge made his order, namely that the court will not speculate

   when it knows and that, because of the agreement and findings in the earlier action, the chance

   which the respondent has lost by reason of the action not having been instituted in time cannot be

   any different from the findings and agreement in the earlier action.

3. On the other hand the appellant contends that, if he is precluded from contesting negligence because of the finding in the earlier action, quantum because of the agreement in the earlier action or the date on which the respondent's injury occurred, a finding on which was a factual basis for the

   judgment that the action was statute barred, there will, in effect, be an issue estoppel against him

   notwithstanding that he was not a party to the earlier action.

4. It may be accepted that the judgment in the action by the respondent against his employer

   is conclusive as against the appellant, as it is against all the world, that the respondent can no longer

   recover against that employer in respect of those injuries. But it is not, in my view, conclusive, as

   against the appellant, of the facts upon which that judgment is based; in particular the date on which

   the respondent sustained his injury.[1] That would be so only if there were an issue estoppel. There

   [1]Mickelberg v Director of Perth Mint [1986] WAR 365 at 371, 384 - 385.

   can be no issue estoppel here because the present action is not between the same parties, or their

   privies, as the earlier action.[2] But the judgment may be some evidence of the facts on which it is

   [2]Ramsay v Pigram (1967-1968) 118 CLR 271 at 276, 282.

   based, in the present case the date on which the respondent sustained his injury.[3]

   [3]Mickelberg v Director of Perth Mint supra. 4 Blair v Curran (1939) 62 CLR 464 at 531.

5. No doubt the evidence of those facts, if unchanged in this action, is unlikely to lead to a

   different result. But there is always the possibility, remote though it may be in this case, that some

   other evidence may be adduced which was not adduced in the earlier trial which may cast some

   better light on those facts.

9 There is even less reason for precluding the appellant from contesting negligence and
quantum. As to the first of these, even between the parties to the earlier action, the finding of

negligence was made hypothetically; it was not, even between those parties, necessary as the legal

foundation or justification for the conclusion reached.4 But, in any event, there can be no issue

estoppel against the appellant who was not a party to the earlier action.

1. As to the second, there was no finding but an agreement between the respondent and

   another as to the amount of damages in the earlier action. There is no legal basis on which such an

   agreement can bind the appellant here.

2. No doubt the evidence on the negligence issue which was before the judge on the previous

   occasion and the fact of an arm's length agreement between the parties as to the amount of damages

   will be some evidence on those issues in the present case. But that cannot preclude the appellant

   from disputing them.

3. The respondent's argument also makes an assumption which cannot be made on the

   pleadings. It is that, in the absence of negligence by the appellant, the respondent's action against

   his employer would have been heard at the time and place when it was in fact heard; for the

   argument assumes that what the respondent has lost by being deprived of his judgment against his

   employer is the judgment which would have been given in the trial which in fact took place had the

   limitation point not been decided against him. That was the basis for the contention that the court

   knows what the result of an action against the employer, commenced within time, would have been.

4. One other question was argued in this appeal. It was submitted by the respondent that the

   appellant's counsel had conceded below that the quantification of the loss of chance which the

   respondent suffered, if one was suffered, was precisely the damages which would have been

   awarded in the earlier action but for the limitation point. An analysis of the transcript of argument

   below yields no such concession. All that seems to be conceded was that, if the appellant were not

   permitted to litigate the issues raised in that part of his defence which was struck out he would be

   bound by what had happened in the earlier action. That much was self-evident. In any event, the

   question whether the appellant was bound by factual conclusions of the trial judge in the earlier

   action or the agreement in the earlier action was one of law.

5. I would allow the appeal with costs. It was submitted by Mr Dutney QC for the respondent

   that, if we allowed the appeal, the respondent should have a certificate under the Appeal Costs

   Fund Act 1973 because of the concession made. For the reasons already given I do not think that

   is correct. In addition, as pointed out by Mr Doyle SC for the appellant, the learned trial judge did

   not found his decision on any such concession. I would refuse the application.

   IN THE COURT OF APPEAL

   SUPREME COURT OF QUEENSLAND

Appeal No 6570 of 1998

Brisbane

Before Davies JA
McPherson JA
White J

[Williams v Callegari]

BETWEEN

JOHN JOSEPH WILLIAMS
trading as J J WILLIAMS & WILLIAMS

(Defendant) Appellant

AND

CAMILLO CALLEGARI

(Plaintiff) Respondent

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 20 April 1999

1. I agree with the reasons of Davies JA for holding that this appeal should be allowed with

   costs.

2. To what his Honour has said, I would add only this; that the principal function of provisions

   like s4(3) of the Judicature Act 1876 (now s245(9) of the Supreme Court Act 1995), and those

   in O3, r11, O17, r4(4) and rr8 and 9, is to provide a means of ensuring that a person not a party

   to the original action may yet be effectively bound by the result of it, and so precluded from later

   saying that he was not. See Warner v Turning (1876) 24 WR 536; Watkins Limited v Plancorp No 6 Pty Ltd [1983] 2 QdR 501, 504-505; and also Helicopter Sales Pty Ltd v Roterwork Pty

   Ltd (1974) 132 CLR 1, 4-5, 14.

3. The quite elaborate procedures provided there would not have been necessary if a person

   in the position of the defendant in the action would in any event have been bound by the findings or

   the judgment in the earlier action between the plaintiff and his employer, to which the defendant in

   the present action was not a party. To this it may, by way of caution, be added that even a party

   to an action is not necessarily and always bound by a determination made in respect of a particular

   issue unless he was also a party opposed in respect of that particular issue itself. See FAI Insurance

   Co Ltd v. Interchase Corporation Limited (Appeal no 4241 of 1997, 14 July 1988).

4. In the earlier action against his employer, the plaintiff made no use of any of these procedures

   designed to make the decision in that action binding on the defendant in this action. Not having done

   so, he cannot now claim that the defendant here is bound by what was decided in that action, or is

   otherwise disqualified from litigating in this action issues that may previously have been determined

   against the plaintiff or his employer in that action. That is not to say that findings made in that action

   would have absolutely no evidentiary weight or value in this, as going to show what might, but for

   the alleged negligence of the defendant solicitor, have been reasonably expected to be recovered.

   But it is quite another matter to say that in this action the defendant solicitor is bound by findings

   made or issues determined in that earlier action to the extent that his defence, or the relevant part

   of it, now seeking to contest those matters or issues should be struck out.

   IN THE COURT OF APPEAL

   SUPREME COURT OF QUEENSLAND

Appeal No. 6570 of 1998

Brisbane

Before Davies JA
McPherson JA
White J

[Williams v Callegari]

BETWEEN:

JOHN JOSEPH WILLIAMS trading as

J J WILLIAMS & WILLIAMS

(Defendant) Appellant

AND:

CAMILLO CALLEGARI

(Plaintiff) Respondent

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 20 April 1999

1. I agree with the reasons of Davies JA for concluding that the appeal should be allowed with

   costs.

2 I note the observations of McPherson JA concerning the availability of procedures in the
Rules to enable persons not original parties to an action to be bound by the outcome of that action.

The desirability of seeking to have all persons bound is demonstrated in this case. There were two

issues to be determined at the original trial - whether the respondent’s cause of action was statute

barred and whether the employer had been negligent. As Davies JA has noted, the issue of quantum

had been resolved by agreement between the respondent and his employer.

1. The evidence about the date on which the respondent sustained his injury at work was far

   from straightforward. The events had taken place 13 years previously. The learned trial judge,

   observed in his reasons for judgment at R23:

   “It is not possible to reach any conclusion which provides a satisfactory factual explanation for the whole evidentiary picture which emerges and in particular the documentation.”

   His Honour then assessed the oral evidence, some of which appeared from his reasons for judgment

   to have been vague and contradictory. He concluded that the respondent had not discharged the

   onus of proof on the issue of the date of injury. The appellant is not bound by the findings made in

   that action and may litigate issues decided in that trial. It is possible, though unlikely, that a different

   line of questioning or further investigations may uncover other material going to the date of injury

   which would tend to tip the balance the other way. The result may be an unfortunate one for the

   respondent falling, as it were, between both actions which may have been avoided had the present

   appellant been made a party to the original action.