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Winky Pop v Mobil

Winky Pop v Mobil

Case [2018] VSC 82 28 February 2018

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S CI 2009 6345

WINKY POP PTY LTD (ACN 082 744 769) and OR AUSTRALIA PTY LTD (ACN 073 102 520	Plaintiffs
and
MOBIL REFINING AUSTRALIA PTY LTD (ACN 004 300 163)	First Defendant
and
THE STATE OF VICTORIA	Second Defendant

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2017
DATE OF JUDGMENT:	28 February 2018
CASE MAY BE CITED AS:	Winky Pop v Mobil
MEDIUM NEUTRAL CITATION:	[2018] VSC 82

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PRACTICE AND PROCEDURE – Application by second defendant for final judgment – No real prospect of success as a result of outcome of trial against separate defendant – Issue estoppel – Anshun estoppel – Preclusive abuse of process by plaintiffs – Application by plaintiffs to amend statement of claim and related additional evidence – Rejected – Prejudice – Civil Procedure Act 2010 (Vic), ss 7, 8, 9 and 63

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Collinson QC with Mr S Senathirajah SC	King & Wood Mallesons
For the First Defendant	Ms K O’Gorman	Ashurst
For the Second Defendant	Mr S Horgan QC with Ms E Latif	Clayton Utz

HIS HONOUR:

The Applications

On 13 July 2015, after a lengthy trial, judgment was handed down in this proceeding dismissing the claims of the plaintiffs, Winky Pop Pty Ltd and OR Australia Pty Ltd (‘the plaintiffs’) against the first defendant, Mobil Refining Australia Pty Ltd (‘Mobil’).[1]
[1]Winky Pop v Mobil [2015] VSC 348 (‘the 2015 Judgment’).

On 19 October 2015, final orders were made in this proceeding. The plaintiffs’ claims against the second defendant, the State of Victoria (‘the State’), were adjourned to a future date.[2]
[2]Winky Pop v Mobil (Costs) [2015] VSC 580.

By summons filed 16 March 2017, the State brought an application for summary judgment in this proceeding against the plaintiffs pursuant to s 63 of the Civil Procedure Act 2010 (Vic) (‘the Act’), on the basis that the plaintiffs’ residual claims against the State have no real prospect of success. In support of its application, the State relies on two affidavits of Philippa Jane Mitchell, sworn 16 March 2017 and 3 May 2017.

By oral application made during argument in relation to the State’s application for summary judgment,[3] the plaintiffs seek leave to amend their pleading against the State. In this application, the plaintiffs rely on the affidavit of Mark Anthony Troiani of 13 April 2017 (‘the Troiani affidavit’).[4] The plaintiffs seek to add a claim in nuisance against the State on the basis that, since the 2015 Judgment, further facts have arisen relevant to their claims against the State.
[3]The plaintiffs’ oral application for leave to further amend its Statement of Claim and to file further affidavit evidence, was made on 4 May 2017 (foreshadowed at [50]-[55] of the Plaintiffs’ Written Submissions, 1 May 2017) and the proposed amendments are set out in their proposed Second Further…

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.

Continue reading Winky Pop v Mobil

Details

AGLC: Winky Pop v Mobil [2018] VSC 82
Case: [2018] VSC 82
Decision Date: 28 February 2018

CaseChat Overview and Summary

The case of Winky Pop against Mobil involved an application by the second defendant for final judgment, following the outcome of a trial against a separate defendant. The matter was heard in the Supreme Court of Victoria. The dispute centered around whether the second defendant, Mobil, was liable for damages claimed by the plaintiffs, Winky Pop, after the first defendant had been found liable in a separate trial. The plaintiffs sought to amend their statement of claim and introduce additional evidence, which was rejected by the court.

The legal issues before the court included whether there was a real prospect of the second defendant succeeding in its application for final judgment, given the outcome against the first defendant. Additionally, the court had to determine if the plaintiffs' application to amend the statement of claim and introduce additional evidence was permissible under the Civil Procedure Act 2010 (Vic). The court considered whether the plaintiffs' conduct amounted to an abuse of process and whether issue estoppel or Anshun estoppel applied to preclude the plaintiffs from pursuing their claims against the second defendant.

The court found that there was no real prospect of the second defendant succeeding in its application for final judgment due to the prior determination against the first defendant. The court held that the plaintiffs were estopped from pursuing their claims against the second defendant under both issue and Anshun estoppel. Furthermore, the court determined that the plaintiffs' application to amend the statement of claim and introduce additional evidence was an abuse of process, as it would cause significant prejudice to the second defendant. Consequently, the application to amend was dismissed. The court granted the second defendant's application for final judgment, ruling that it was not liable for the damages claimed by the plaintiffs.

Orders