Boulos v Martin

Judgment 1WHEALY JA: The Court is in a position to give a decision in the matter on the first point raised by Mr Boulos in his Notice of Motion. It is necessary, however, for me to say something about the history of the proceedings. 2On 26 March a two person bench comprising Tobias AJA and myself dismissed an application for leave to appeal brought by Mr Boulos whom I shall call the applicant. The leave application related to an appeal from orders made by his Honour Judge Colefax in the District Court on 24 June 2011. Essentially his Honour had dismissed a Statement of Claim issued by the applicant and did so on the basis that the proceedings were an abuse of process. At issue had been the principle of res judicata because, as the primary judge held, the applicant had already obtained a judgment against the respondent on precisely the same cause of action as pleaded in the District Court proceedings. 3This Court dismissed the leave application on the basis that the applicant had failed to demonstrate an arguable case. A reading of the Court's decision will provide the full background to the arguments before this Court and an understanding as to why we came to our conclusion. I will not, however, repeat in this decision the matters set out in considerable detail in our earlier decision. They may be taken to be incorporated in this decision. 4Following the dismissal of the leave application, the applicant filed a Notice of Motion on 30 April 2012. The motion, in part, appears to offer some type of challenge to the orders made by this Court on 26 March 2012. Of course any appeal from those orders must be to the High Court by way of special leave application. The applicant, however, confirmed that the basis of his challenge is not intended to be an appeal but is rather a genuine endeavour to ask this Court to review its previous decision. 5As this part of the Notice of Motion is a challenge to the orders made by Tobias AJA and myself it appeared appropriate that, insofar as this aspect of the motion was concerned, the Court should be constituted as it was on 26 March 2012 and the applicant, being made aware of that situation, stated that he was content for the matter to proceed with the Court so constituted. 6A refusal of a leave application is, in a practical sense, final. But it has been long regarded in true technical legal analysis as an interlocutory decision: Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324 at [14]; Sanofi v Parke Davis Pty Ltd (No 1) [1982] HCA 9; 149 CLR 147 at 152-153. 7An interlocutory order may, in general terms, be reviewed but in a matter such as the present it is important that the application for review ought not involve in substance a purported appeal. As I say, however, there may in certain situations be an opportunity for a dissatisfied applicant to bring a fresh leave application, although the practice is scarcely to be encouraged for obvious reasons. 8The avenue for so doing in the present matter is either to make an application under r 36.15 or r 36.16. The applicant confirmed that this part of his Notice of Motion is in fact brought pursuant to those rules in the Uniform Civil Procedure Rules 2005. 9It is convenient to deal with 36.16 first. This provides that the Court may set aside or vary a judgment or order if a Notice of Motion for the setting aside or variation is filed before entry of the judgment or order. That part of the rule does not apply here. However there is an additional part which enables an application to be made to vary a judgment or order but only where the motion is filed within fourteen days after the judgment or order is entered. There is no power to extend that time, see r 36.16(3C). Thus in the present matter that avenue is not available to the applicant, as was drawn to his attention during argument. 10Rule 36.15 enables a judgment or order of the Court in any proceedings on sufficient cause being shown to be set aside if the judgment was given or entered or the order was made irregularly, illegally or against good faith. The applicant has advanced arguments here that suggest a lack of good faith on the part of Colefax DCJ, Young JA, Macfarlan JA and the members of this Court as presently constituted. I put to one side the arguments relating to Young JA and Macfarlan JA since the Court as presently constituted is not concerned with that part of the applicant's motion. 11For my part I do not take any offence of the suggestion that I have been party to an order that was made irregularly or with a lack of good faith as suggested by the applicant, because he has made it clear that what he is really submitting is that he believes that the Court, to put it in the vernacular, simply got it wrong. He argues that there was a misapplication of the principles in relation to res judicata by this Court and a failure by this Court to appreciate the true content of those principles. Thus the arguments that are based on lack of good faith, irregularity and so on all distil themselves into that one proposition. 12The first answer to this proposition, I think, as was put in argument to the applicant, is that if this Court in fact erred in law in refusing leave because it did not understand the principles in relation to res judicata the only avenue of appeal to correct such an error is to the High Court by way of special leave. However I am not satisfied, in any event, that the applicant's arguments raise an arguable point in that regard. 13The critical argument, again trying to distil it to its essence, is that the res judicata principle relied upon by the District Court judge was not applicable because, as Mr Boulos put it, he has never waived his opportunity or right to sue Dr Martin in subsequent proceedings, and he claims that Dr Martin acknowledged in the Local Court proceedings that there would be further proceedings instituted. 14The Anshun principles may be summarised by saying that they focus on the proposition that parties are expected to bring forward the whole of their case. Here Mr Boulos argues that he was justified in not bringing forward the whole of his case, that he did not waive the opportunity to bring forward the whole of his case, and that Dr Martin knew and acknowledged that there might be further proceedings. 15The fact is that the applicant was not met in the District Court with an Anshun type estoppel. The simple answer to his argument is that his proceedings were dismissed on a cause of action estoppel. It is clear from our earlier decision, 26 March 2012, why that was so. In my opinion none of the arguments advanced by the applicant today really alter that position or raise an arguable point in relation to it. 16The next argument advanced was that the applicant claimed that he has been denied natural justice and procedural fairness. The applicant did not really identify any basis for this submission, but suggested that it had infected not only the proceedings before this Court as presently constituted but all the proceedings in this Court including those before Young JA and Macfarlan JA. 17In my opinion this submission is no more than an assertion on his part that, because he has lost in the District Court, and because he has failed to have his leave application granted in this Court, he must necessarily have been denied natural justice and fairness. The submission has only to be stated, in my opinion, to be seen to be manifestly incorrect and I reject it robustly. 18There were then submissions relating to an aspect of the motion before Macfarlan JA which raised a point as to whether the applicant ought to have been allowed to amend his proceedings in the District Court. This argument is one that relates to that part of the present motion that requires adjudication by a bench of three so I will not say anything further about it. 19There was, however, some interchange between the bench and the applicant about his prospects of amending the proceedings in the District Court to claim damages for a breach of statutory duty and whether there might be a limitation applicable to that amendment, but in my view that too is a side issue that really does not bear on the present application that I am considering. 20Finally the applicant submitted that it was necessary for this Court to go through all of the cases he had mentioned in his written submissions and to deal with them. Further, he submitted that the case law in any event should be treated on a broad view of the law, particularly in light of the fact that he is an unrepresented litigant. 21The answer to this submission is firstly that the Court on a leave application or on the review of a leave application does not regard itself as bound to give other than broad reasons as to whether or not an arguable case has been presented. This is not an appeal. In my opinion the applicant has been given ample opportunity to present his case and the reasons which we have provided both on 26 March, and which we provide today, are sufficient to discharge our obligation to provide him with a fair hearing. 22As to the second aspect of this argument I would simply say, as I did when there was discussion with Mr Boulos, that there are not two laws to be applied where a litigant is unrepresented; one for the benefit of the unrepresented person and the other for the person who may have legal representation. 23This Court does its best to extend every assistance it can within the bounds of propriety and fairness to unrepresented litigants and I believe we have done so in the present matter. The law however is constitutionally, and in every respect, to be interpreted the same way for all citizens whether they have the benefit of a lawyer or they do not. 24In my opinion no proper basis has been shown to review the Court's refusal of leave. In particular, none of the matters relied on under r 36.15 have been demonstrated and I would propose that so much of the Notice of Motion as seeks to challenge the refusal of leave be dismissed. 25TOBIAS AJA: I agree. I would simply point out for the benefit of the applicant the following. 26It is apparent that he does not entirely understand the legal principles or concepts relating to estoppel. I do not intend by that remark to in any way criticise the applicant's skills or competency or abilities in his attempt to put his case. The issues raised by a plea of res judicata are not always easy for lawyers to understand let alone a lay person. However it is noteworthy that the applicant relied heavily upon the recent decision of this Court in Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2009) 75 NSWLR 245. 27That case involved what is referred to as an Anshun estoppel. As Giles JA noted at [39] of his reasons in that case, an Anshun estoppel is sometimes referred to as an extended res judicata doctrine. 28Handley AJA, in the same case, and who is an acknowledged expert in this field, observed that there were in fact three forms of res judicata estoppel; the first could be said to be Anshun estoppel; the second is issue estoppel and the third is cause of action estoppel. Each of them from time to time have been included in the rubric res judicata but each of them involve different considerations in terms of their application. 29In the present case Colefax DCJ applied cause of action estoppel. The present case has nothing to do with Anshun estoppel. A cause of action estoppel, as Handley AJA pointed out at [106] of Champerslife, occurs where the cause of action in later proceedings is in substance the same as that litigated to judgment in earlier proceedings. That is precisely the form of res judicata that was applied by Colefax DCJ in his judgment in the present case. 30As his Honour there made clear, what was being sought by the applicant in the District Court was further damages arising out of same cause of action (negligence) based on a breach by Dr Martin of his duty of care in treating the applicant in September and October 2005. 31That being so the cause of action in negligence, which only required some damage to be sustained for the cause of action to be completed, merged in the judgment of the Local Court and cannot be resurrected in later proceedings simply because further damage arising out of the same breach of duty on the part of Dr Martin occurred or was discovered at a later point of time. 32In fact Colefax DCJ noted that the Local Court proceedings were limited to the cost of the rectification work, if he could put it that way, performed by Dr Caminer. The proceedings in this Court seek to recover the costs of the reconstruction work performed on the applicant but which was anticipated by Dr Caminer as long ago as 2006. 33It is true that the applicant asserts, and I will assume correctly for present purposes, that in the Local Court he indicated to Dr Martin's legal representatives and perhaps to the Court itself that he intended, as the presiding judge has already noted, to bring further proceedings in order to claim further damage that might occur in the future arising out of Dr Martin's original negligent conduct. 34The difficulty that faces the applicant is that although he may then have thought that he was entitled to bring fresh proceedings in order to claim such damages, he was legally in error once the proceedings in the Local Court had proceeded to judgment. Regrettably he simply chose the wrong court at the wrong time. 35Certainly, as he maintains in his submissions, it was his right to choose the court in which he originally commenced proceedings. But in so doing he ran the risk, which has come to fruition in the present case, that he was successful in that court, established a breach of duty on the part of Dr Martin that sounded in damages, recovered those damages and obtained a judgment the result of which is that the cause of action upon which he now seeks to sue in the District Court had already merged in the Local Court judgment. 36The concept of finality of proceedings and the doctrine of res judicata - or more accurately, cause of action estoppel - prevented him from pursuing his claim for further damages arising out of the same act of negligence in the District Court. That is why he was unsuccessful before this Court in March of this year and nothing that he has said today can justify the variation or the setting aside of the order which was made on that occasion. 37Certainly what this Court then did did not amount to an order being made either irregularly, illegally or against good faith as those expressions are understood in the context of UCPR r 36.15(1). 38For those additional reasons I agree with the order proposed by the presiding judge. 39WHEALY JA: The order of the Court is that, so far as to the extent that the motion seeks to review the decision of this Court on 26 March 2012 refusing leave, that aspect of the motion is dismissed.