Supreme Court of WA|2007-11-27|Before: Mr P

WILLOUGHBY -v- CLAYTON UTZ [2007] WASC 281 (27 November 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WILLOUGHBY -v- CLAYTON UTZ [2007] WASC 281

Practice and procedure - Summary judgment - Res judicata - Limitation period - Turns on own facts

1 The defendant, by amended chamber summons filed on 1 August 2007, seeks summary judgment against the plaintiffs or alternatively that the originating summons and statement of claim be struck out or alternatively that the plaintiffs give the defendant security for costs.

2 The background of the matter is conveniently outlined in pars 2 to 12 of the defendant's written submissions as follows:

The plaintiffs, and another, commenced proceedings against the defendant by application to the Federal Court of Australia on 22 December 1998 ('the 1998 application') - see Willoughby v Clayton Utz [2005] WASC 47, (2005) 193 FLR 373, at [14].
By their amended statement of claim in the 1998 application, served on 21 June 2000, the plaintiffs alleged that they had incurred loss, caused by breaches of various duties owed to them by the defendant, in relation to the compromise by the plaintiffs of their claim against Esanda Finance in November 1993 - see affidavit of David Ronald Goodman sworn 5 September 2007 ('Goodman affidavit') pages 6 to 9.
On 23 April 1999 the defendant sought orders to dismiss the 1998 application summarily - see Goodman affidavit, pages 17 to 22.
The 1998 application was ordered to be transferred to the Supreme Court of Western Australia on 28 February 2003 - see Willoughby v Clayton Utz [2003] FCA 120.
The 1998 application was dismissed with costs as against the plaintiffs on 7 April 2005 - see affidavit of Catherine Helen Morton Butt sworn 11 July 2005 ('Butt affidavit'), pages 27-28.
This action was commenced on 28 June 2005 - see Butt affidavit, page 32.
The defendant sought orders to dispose of this action summarily by chamber summons dated 12 July 2005.
This action and the defendant's application were stayed by consent pending the determination of the plaintiffs' application for an extension of time in which to appeal against the summary dismissal of the 1998 application.
The plaintiffs' application for an extension of time was dismissed by the Court of Appeal on 10 January 2007 - see Goodman affidavit, page 10.
An application by the plaintiffs for special leave to appeal was dismissed by the High Court on 15 June 2007 - see Willoughby v Clayton Utz [2007] HCATrans 305.
The defendant's application was amended on 1 August 2007 to seek, in the alternative, a stay of this action pending the provision of security for costs.

The principles relied upon by the defendant for summary judgment

3 The defendant relies upon three principles in relation to the summary judgment application: (1) it is said the plaintiffs' claim is frivolous or vexatious and judgment should be entered pursuant to O 16 r 1; (2) the defendant has a good defence on the merits and judgment should be entered pursuant to O 16 r 1; (3) the inherent jurisdiction of the court to dispose summarily of an action which is an abuse of process.

4 There are basically two issues upon which the defendant seeks summary judgment: (1) the plaintiffs' claim in this action is identical in substance to the plaintiffs' claim in the 1998 application, which application was dismissed; (2) the plaintiffs' claim became statute barred on 22 November 1999 and this action was not commenced until 28 June 2005.

5 As to the first issue, at the special appointment, counsel for the plaintiffs conceded that the causes of action in each matter are essentially the same in the broadest possible sense. However, it was argued that the issues the subject of the plaintiffs' claim have not been determined by any other court in that Master Newnes dismissed the plaintiffs' claim on the basis they had no standing to initiate the proceedings. From a reading of the decision of the learned master in Willoughby v Clayton Utz [2005] WASC 47, that appears to be so. In that regard, I refer to [29] and [30] of the learned master's decision where he said:

It follows, in my view, that the current action by the first three plaintiffs must be dismissed. When it was brought, those plaintiffs had no cause of action. The assignment to them of the causes of action some years later did not retrospectively validate the action.

It might well be thought that in circumstances where the delay in effecting an assignment of the causes of action to the bankrupt plaintiffs was apparently not attributable to any fault on their part, that leads to a manifestly unfair outcome, as any action they now sought to bring, or indeed which they might have sought to bring in May 2002, would be statute-barred. That, however, cannot alter the fact that, at the time the action was commenced, the causes of action remained vested in the Official Trustee and the bankrupt plaintiffs had no standing to bring the action. The action was fatally defective from the outset.

6 At the time these causes of action arose the plaintiffs were undischarged bankrupts and thus the causes of action vested in the Official Trustee. Counsel for the plaintiffs argues that the previous action was dismissed because the plaintiffs never owned those causes of action. It is said it is impossible in these circumstances for the causes of action to have merged into the judgment of the learned master and on that basis it is impossible for the doctrine of res judicata to apply. It is therefore said this is not an abuse of process.

7 To this counsel for the defendant referred to Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 where Fullagar J said:

In the first place, if A sues B to judgment and in subsequent proceedings between them a plea of res judicata is raised, the primary question will be whether the cause of action in the later proceedings is the same as that which was litigated in the former proceedings.

...

In the second place, it follows from the very nature of the difference between the plea of res judicata and the plea of issue estoppel that different materials are relevant in each case. Where the plea is of res judicata, only the actual record is relevant. Where the plea is of issue estoppel, any material may be looked at which will show what issues were raised and decided. Reasons given for the judgment pronounced are likely to be particularly important for this purpose: see Ord v Ord (1923) 2 KB, at p 440 and Marginson v Blackburn Borough Council (1939) 2 KB, at p 437. Both those cases were cases of issue estoppel and were clearly treated as such, though I think, with great respect, that both illustrate the unfortunate absence of a clear legal terminology, to which I have already referred. (467)

8 Counsel for the defendant submitted that in light of Jackson v Goldsmith the reasons of the learned master are not particularly relevant to the question of res judicata. It is said what is relevant are the causes of action pleaded in the statement of claim and those causes of action are identical in substance to the causes of action in this matter. Counsel for the defendant submits that as a matter of record a cause of action has been alleged and there is an order of the court dismissing the action. It is said there can be no further proceedings between the same parties in which the same causes of action are alleged.

9 To the extent that it might be thought there is some subtle difference between the causes of action relied upon in these proceedings and the causes of action asserted in the 1998 proceedings, the defendant argues that the principle of res judicata applies not only to the subject-matter of the particular litigation, but also to every point which properly belonged to the subject of that litigation which the parties exercising reasonable diligence might have put forward at the time: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, 598.

10 I accept that the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. Further, the court should be astute not to risk stifling the development of the law by summarily disposing of actions in respect of which there is a reasonable possibility that it will be found in the development of the law, still embryonic, that a cause of action does lie: Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365.

11 If one is to accept the submission of the defendant that the causes of action have merged into the judgment of the learned master and the doctrine of res judicata applies, then it follows that there is no real question to be tried. In support of his argument that this action is not an abuse of process, counsel for the plaintiffs referred to the decision of Lee v St George Bank Ltd [2006] WASC 221 where Master Newnes states:

In State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (64,089), a case involving abuse of process in seeking to relitigate an issue, Giles CJ described the relevant considerations as follows:

'One category of case where abuse of process may exist is where a party seeks to relitigate an issue already decided. Principles of res judicata and issue estoppel will preclude relitigation of an issue between the same parties. These principles can be seen as founded on the same considerations as those informing the jurisdiction to stay proceedings for abuse of process. But there may be abuse of process warranting a stay where a party seeks to relitigate an issue decided between himself and a third party.

... whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate an issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are -

(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;

(c) the terms and finality of the finding as to the issue;

(d) the identity between the relevant issues in the two proceedings;

(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; ...

(f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.' [82]

12 On a plea of issue estoppel or on an application for a stay based upon an abuse of process it would be appropriate to take into account the considerations listed by Giles CJ. However, in light of Jackson v Goldsmith, I am of the view that the doctrine of res judicata would apply in this case and it is not open to consider those matters.

13 In any event, I will now turn to consider the second issue. The plaintiffs have conceded the causes of action are statute-barred. The plaintiffs contend that it would be unconscionable on the part of the defendant to rely upon the limitation point and contend the defendant is estopped from relying on the limitation period as a defence to this action.

14 The basis of this estoppel is said to be the conduct of the defendant's insurer in having procured the causes of action the subject of the proceedings by way of assignment from the Official Trustee and then permitting the action to run out of time while that conduct was reviewed in the Federal Court. It is said the Federal Court found that the acquisition of the causes of action from the Official Trustee by LawCover was wrong and the effect of the deed of assignment for so long as it was operative and subject to review before the Federal Court was to deprive the plaintiffs of the ability to pursue those causes of action. The deed of assignment took effect in April 1999.

15 The plaintiffs referred to Hawkins v Clayton (1988) 164 CLR 539 where Deane J said:

It is arguable that the notion of unconscionable reliance upon the provisions of a Statute of Limitations which provides the foundation of the long-established equitable jurisdiction to grant relief in a case of concealment of a cause of action until after the limitation period has expired (cf s 55(1) of the Limitation Act) should, by analogy, be extended to cover cases such as these where the wrongful act at the one time inflicts the injury and, while its effect remains, precludes the bringing of an action for damages. It seems to me, however, that the preferable approach is to recognize that it could not have been the legislative intent that the effect of provisions such as s 14(1) of the Limitation Act should be that a cause of action for a wrongful act should be barred by lapse of time during a period in which the wrongful act itself effectively precluded the bringing of proceedings. On that approach, the reference in s 14(1) of the Act to the cause of action first accruing should be construed as excluding any period during which the wrongful act itself effectively precluded the institution of proceedings. (590)

16 Counsel for the defendant seeks to distinguish that case. It is said here the plaintiffs' complaint concerns the acquisition of the causes of action by LawCover. It is true that acquisition was challenged by the plaintiffs in the Federal Court and ultimately Nicholson J in Willoughby v Official Trustee in Bankruptcy [2001] FCA 1345 found:

For these reasons I consider it is appropriate for there to be a direction that the Trustee assign the Causes of Action to the applicants on the terms and conditions of their offer made in March 1999. [30]

17 In an earlier decision in Willoughby v Official Trustee in Bankruptcy [2001] FCA 753 his Honour said:

I accept the submission for the second respondent that there is no evidence of fraud in any of the papers before the Court.

In relation to the issue of collusion, there is no evidence of any adverse intention displayed or open to inference from the letter of 8 March 1999 written on behalf of the solicitors for the first respondent setting out reasons why the Official Trustee sought to assign the rights of action and the basis on which that could occur. The same is the case in relation to the letter of 23 March 1999 in response. There is nothing in the evidence to show the elements necessary to establish collusive conduct. Furthermore, the evidence discloses proper purpose in the steps taken to sell the right of action. In my opinion the applicants' case does not make out the allegation of collusion. [29], [30]

There are two interrelated matters which make it just and equitable that the Court should intervene.

The first is that the Trustee was the principal creditor (and perhaps the only creditor) when the decision was made. It was in a position of conflict as between it and the bankrupts. That position had the consequence that the decision of the Trustee may have had undue regard to its recovery of its debt and too little regard to the interests of the bankrupts contrary to the duties of the Trustee as set out in Adsett and cited in Citicorp at 678. There is also the possibility of some remaining estate indebtedness to Mr Schneider.

Secondly, it is clear that the bankrupts have a considerable interest in the Action. The Trustee's decision gave no weight to the fact that the bankrupts stood the chance to possibly benefit from pursuing their rights in the Action.

Those considerations, involving as they do in each case considerations of an equitable character, establish it is just and equitable that the Court should intervene to make orders setting aside the Trustee's decision and otherwise addressing the consequent issues. [61] - [64]

19 As counsel for the defendant correctly points out his Honour did not find any wrongdoing or any questionable conduct on the part of LawCover but rather it was the case of failure on the part of the Official Trustee to take relevant considerations into account.

20 At the time the first application for review came before the Federal Court on 19 October 1999 just over a month remained before the expiry of the limitation period. By the time the judgment was handed down on 10 December 1999, the period had expired. When the matter came before the Full Court of the Federal Court the period had expired as it had when it came back before Nicholson J in 2001.

21 Counsel for the defendant submits that the defendant did not take part in these proceedings but rather it was LawCover. The plaintiffs accept that, but assert that LawCover was acting as agent for the defendant and so the conduct of LawCover must, it is said, be imputed to the defendant. Counsel for the defendant argues that this is not necessarily the case. On what is before me I do not accept that LawCover was acting as agent of the defendant in the matter of the assignment and I do not accept that the actions of LawCover should be imputed to the defendant.

22 The defendant argues that if the plaintiffs' case is taken at its highest on the estoppel point they would have had to have commenced proceedings by November 2002. They elected not to do so notwithstanding the fact it was open to them as the causes of action had been transferred to them from the Official Trustee on 29 May 2002. What they elected to do was maintain the fundamentally flawed proceedings which they had commenced in 1998 and it was not until those proceedings had been dismissed did they commence a fresh action in 2005.

23 In my view, there was nothing in the conduct of the defendant nor that of LawCover with regard to the assignment of the causes of action which would make it unconscionable for the defendant to rely upon the limitation period.

24 The plaintiffs further argue the defendant is precluded from relying upon the limitation period as a defence where it would be expected that the defendant would raise the defence in the first action and thereby enable the relevant issues to be determined in one proceeding: Port of Melbourne Authority v Anshun Pty Ltd. The plaintiffs submit when the application for review of the decision of the Official Trustee to assign the causes of action came before Nicholson J in the Federal Court and then on appeal to the Full Federal Court, the defendant did not raise the submission that the relevant limitation period had expired in respect of the various causes of action. It is said the defendant did not give any indication it would seek to rely on such a defence to the actions and it was not considered by the Federal Court in the two decisions, other than in the context of causes of action under the Trade Practices Act 1974 (Cth) which it was conceded by the parties the relevant limitation periods had expired.

25 The plaintiffs contend that it is a well established principle that the court will not make orders which are futile and, had the limitation period been raised by the defendant, it would have been open to the Federal Court to refuse to review the assignment of the causes to the defendant as it did in relation to the trade practices causes of action. It is said on the principle of Anshun the fact that the defendant chose not to rely upon the limitation period in the proceedings before the Federal Court means that it can not now attempt to do so in this proceeding.

26 On what is before me it is not apparent how the defendant could have raised this issue in those proceedings. As to LawCover, the defendant says the limitation issue was never part of the earlier proceedings and LawCover was not in a position to raise this issue. Even if it could or more particular if it should, the action or inaction by LawCover would not in my opinion preclude the defendant from relying on the limitation point.

27 I am of the view that there is nothing in the defendant's behaviour which should preclude it from relying on the limitation point. I am therefore of the view the defendant would also be entitled to judgment on both issues.

28 The defendant contends this is an appropriate case for an order for security for costs on the following basis:

(a) The claim is without merit ...

(b) There is evidence that the plaintiffs have no property within the jurisdiction - see Willoughby affidavit, paragraph 67.

(c) There is no evidence that there is any other property within the jurisdiction which may be available to satisfy any order for costs against the plaintiffs.

(d) The normal processes of the Court are unlikely to be available, because it is likely that the plaintiffs will be declared bankrupt as a result of their anticipated failure to comply with bankruptcy notices which the defendant proposes to serve on them in respect of the taxed costs - see Goodman affidavit, paragraph 15, and page 31.

29 I accept the court has jurisdiction to order security for costs in these circumstances. Further, it is common cause that the plaintiffs are impecunious. The plaintiffs do not argue with the fact that the court has a jurisdiction which is enlivened. It is argued that the discretion should not be exercised in favour of the defendant as the consequence of the stay the defendant has sought will effectively frustrate the plaintiffs' right to litigate.

30 It is submitted by the plaintiffs that the courts have long been jealous of the rights of impecunious litigants to sue at least at first instance and this is so even if the litigant sues for the benefit of his or her creditors and himself: Schokman v Hogg [2003] QCA 28, 8 - 9. The fact that the ordering of security will frustrate the plaintiff's right to litigate his or her claim because he or she is unable to find the security does not automatically lead to the refusal of an order, although it will usually be a powerful factor in the plaintiff's favour: Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542, 545. In this matter the plaintiffs have established by their affidavits that they sue for their own benefit and for that of the creditors of their estate.

31 The plaintiffs contend the evidence shows the very bankruptcy which the defendant relied upon as a basis for striking out the plaintiffs' earlier claim and thus leading to the costs order upon which it now relies, was the same bankruptcy in respect of which the defendant acted for the plaintiffs. It is this very same bankruptcy and the result of the defendant's failure to even obtain an annulment in respect thereof that is the subject to these proceedings. It is thus said the defendant's application for security for costs should be dismissed as the defendant should not be allowed to profit from its conduct.

32 In support of the application the defendant refers to the deed of assignment of the causes of action to the plaintiffs correctly observing that if the plaintiffs are successful in this action at least 50% of the proceeds would go to the creditors of the plaintiffs under bankruptcy. Thus, there are those who stand to benefit if the plaintiffs were to be successful but they are not exposed to costs being recovered against them.

33 On what is before me I am satisfied each of the matters raised by the defendant referred to in [28] is in fact the case. In addition to this I think it relevant that this is the second time the plaintiffs have brought the same action against the defendant. I am conscious of the fact that an order for security for costs may frustrate the plaintiffs' ability to litigate their claim. Notwithstanding that, if it were not for the fact I consider judgment should be entered for the defendant, I consider this is an appropriate case in which security for costs should be ordered. In view of the plaintiffs' position, I would be inclined to order security be given in two steps. The first would be up to and including the entry for trial at which time the defendant could seek a further order in relation to the costs of trial.

34 The defendant seeks costs on an indemnity basis. It is submitted that shortly after commencement of this action the plaintiffs received advice from senior counsel to the effect that this action was likely to be struck out if the order dismissing the earlier proceedings was not set aside. This, it is said, is contained in an affidavit filed by the plaintiffs for an extension of time to appeal against the decision of Master Newnes. Notwithstanding that, the plaintiffs elected to maintain this action and to continue to oppose the defendant's application.

35 I accept that an order that costs be taxed on an indemnity basis can be made where the plaintiffs, properly advised, should have known that they had no chance of success: O'Donnell Griffin Pty Ltd v Davis [2007] WASC 215 [60].

36 This is a case where the plaintiffs properly advised should have known their chances of success were minimal at the very least. In the circumstances, I am of the view that it is appropriate to order the plaintiffs pay the defendant's costs on an indemnity basis.

37 At par 32 of the defendant's written submissions the following is submitted:

Costs should be ordered against the plaintiffs' solicitors on an indemnity basis, for the following reasons:

(a) the plaintiffs' solicitors were the solicitors for the plaintiffs from time to time in the 1998 application, and at all times in relation to the applications to the Court of Appeal and the High Court following the dismissal of the 1998 application;

(b) the plaintiffs' solicitors must have been aware of the causes of action relied on by the plaintiffs in the 1998 application, the applicable limitation period, and the dismissal of the 1998 application;

(c) the plaintiffs' solicitors advised the plaintiffs to commence this action and have been the solicitors for the plaintiffs in this action at all times since its commencement - see Willoughby affidavit, page 99;

(d) the plaintiffs' solicitors should have known that this action is, and was from the outset, vexatious and an abuse of the process of the Court;

(e) shortly after commencing this action, the plaintiffs' solicitors became aware of the advice from senior counsel to the plaintiffs, to the effect that this action was likely to be struck out if the order dismissing the 1998 application was not set aside;

(f) the plaintiffs' solicitor continued to act for the plaintiffs in relation to this action, and their opposition to the defendant's application, despite the advice of senior counsel, and despite all avenues of appeal being tried and exhausted by the plaintiffs, without success;

(g) by reason of the above, the plaintiffs' solicitor must be taken, in the absence of any reasonable explanation, to have participated in the abuses of the process of this Court constituted by the commencement and maintenance of this action.

38 In De Sousa v Minister for Immigration, Local Government & Ethnic Affairs [1993] FCA 146; (1993) 41 FCR 544, French J said:

There is no doubt in my opinion that the Federal Court has the power to make an order of the kind sought in this case. I accept the proposition that the jurisdiction is to be exercised with care and discretion and only in clear cases. The mere fact that litigation fails is plainly no ground for its exercise. There has to be something which amounts to a serious dereliction of duty. (547 - 548)

39 Whilst I am of the view it is appropriate to award costs on an indemnity basis against the plaintiffs, I am not persuaded on the evidence before me the behaviour of their solicitors amounts to a serious dereliction of duty. In my view, this is not such a clear case as would warrant such an order. Accordingly, I would not order costs against the plaintiffs' solicitors.

1. The plaintiffs, and another, commenced proceedings against the defendant by application to the Federal Court of Australia on 22 December 1998 ('the 1998 application') - see _Willoughby v Clayton Utz_

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (55 paragraphs)

WILLOUGHBY -v- CLAYTON UTZ [2007] WASC 281 (27 November 2007)

Parties

Legislation Cited (1)

Cases Cited (7)

1. The plaintiffs, and another, commenced proceedings against the defendant by application to the Federal Court of Australia on 22 December 1998 ('**the 1998 application**') - see _Willoughby v Clayton Utz_

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (55 paragraphs)

WILLOUGHBY -v- CLAYTON UTZ [2007] WASC 281 (27 November 2007)

Parties

Legislation Cited (1)

Cases Cited (7)

1. The plaintiffs, and another, commenced proceedings against the defendant by application to the Federal Court of Australia on 22 December 1998 ('the 1998 application') - see _Willoughby v Clayton Utz_