Burns v Ingram

Background Facts 5The circumstances that give rise to these proceedings are that the Plaintiff invested approximately $3.5 million in a restaurant business that failed. She recovered some of her investment following the failure of the business, but a large amount remained, and remains, outstanding. 6Proceedings were commenced by the Plaintiff against Alan Michael Grevler ("the First Proceedings"), who practised as a chartered accountant, it being alleged that he engaged in misleading and deceptive conduct in breach of s 42 of the Fair Trading Act 1987, and that he breached the duty of care and fiduciary obligations owed by him to the Plaintiff in connection with her investment in the restaurant business. The Plaintiff sued him in his capacity of chartered accountant for the persons investing in the restaurant business, collectively referred to as "the Syndicate", and also as one of the members of the Syndicate. 7Mr Grevler disputed any liability to the Plaintiff, the dispute being both as to facts and as to the legal consequences of the facts. 8The First Proceedings were heard, and determined, by Rein J in late 2010. The medium neutral citation of his Honour's reasons for judgment is Burns v Grevler [2010] NSWSC 1219. There was no appeal. 9In the First Proceedings, the Defendant, who was a witness but not a party, was described as the mother of James Ingram and Jonathan Ingram. James, Jonathan, the Defendant, Mr Grevler, and the Plaintiff, were members of the Syndicate. 10Facts not disputed in the First Proceedings, and which may remain uncontentious facts in the Current Proceedings, are that the Plaintiff, James and the Defendant, had been involved in the conduct of a business together; that when that business closed down, the Plaintiff was informed that James was looking to open a new restaurant; that the Plaintiff indicated that she would be interested in investing in the new restaurant; and that, ultimately, the new restaurant was opened, but, from its commencement, in June 2006, until it closed in February 2007, its financial position was "precarious". 11The Plaintiff was successful in the First Proceedings and obtained a judgment for $2,912,713.02 and costs. In very broad terms, his Honour was satisfied that "[N]ot only was Mr Grevler a joint participant in the venture, but he was also acting as the accountant for the syndicate. Mr Grevler's knowledge of the worthlessness of James' and Jonathan's guarantees (sufficient of itself, but even more important having regard to the use of several guarantees, rather than joint and several guarantees), put Mr Grevler in a position of conflict between the interests of James, Jonathan and himself, on the one hand, in proposing a structure for the venture and Ms Burns on the other hand. Further, the syndicate members (apart from Ms Burns) obtained not only the advantage of funding for the venture, but Mr Grevler and Beverley also obtained the collateral advantage of having no joint liability to meet any shortfall resulting from James' and Jonathan's guarantees being worthless". 12In the circumstances, his Honour concluded: "[90] ... Mr Grevler owed Ms Burns a fiduciary duty not to allow his own interests to conflict with hers and not to prefer the interests of other persons over Ms Burns' interests and that Mr Grevler breached these obligations. I think that Ms Burns is entitled to recover the amount of her entire investment in RPL and IBG, since it was procured as a result of Mr Grevler's breach of fiduciary duty to her as a prospective syndicate member. Breach of duty of care [91] ... I conclude that Mr Grevler owed Ms Burns a duty of care in relation to the advice that he was proffering to all members of the syndicate as to how the loan would be structured. At the very least, he was required to encourage Ms Burns to obtain her own independent accounting and legal advice, particularly if he felt that he had a conflict between the obligations he owed to James and Jonathan and the obligations he owed to Ms Burns, and even more so given the proposed utilisation of several guarantees rather than joint and several guarantees. ... [112] It follows that, subject to allowances for the amounts that Ms Burns has already received from Mr Grevler and Beverley, Mr Grevler is liable to reimburse all of the monies that Ms Burns invested in RPL and IBG, as well as the interest that she has had to pay on the monies borrowed. That amount is $2,912,713.02 excluding interest. The interest should be calculated up to today, and the parties should bring in Short Minutes of Order with the amount of interest so calculated." 13There was no dispute, in the First Proceedings, that of the amounts that the Plaintiff invested in the business, the only amounts that were repaid were a total of $335,000 received from Mr Grevler and a total of $267,286.98 received from the Defendant. However, in April 2011, following the conclusion of the First Proceedings, the Plaintiff received from Mr Grevler $2,050,230.68 and in June 2011, a further amount of $350,000. (I was informed from the bar table that these amounts were paid by Mr Grevler's insurer which responded to a policy of insurance that he held. The Plaintiff accepts that the receipt of those sums is relevant in the Current Proceedings.) 14Relevantly to the issues in the present notice of motion, his Honour noted, at [23] of the reasons for judgment: "The case advanced by the plaintiff at the hearing was much truncated compared to what had been put forward in the plaintiff's pleaded case through the Further Amended Statement of Claim ("FASTOC"). Mr Aldridge confirmed that the subject matter of the claims for misleading and deceptive conduct under s 42 of the Fair Trading Act and breach of a duty of care was limited to the following matters: (1) the offering of and provision of guarantees by James and Jonathan which, to the knowledge of Mr Grevler (and James, Jonathan and Beverley), were worthless; ..." 15I should note that the Defendant was cross-examined in the First Proceedings. The transcript of her evidence did not form part of the evidence read on the notice of motion. His Honour noted, at [51] that "[N]o submissions were made concerning Beverley's credibility as a witness". 16On 22 October 2010, his Honour made orders in accordance with Short Minutes provided by the Plaintiff and dealt with the issue of costs.

The Current Proceedings 17There is no dispute that a significant number of the paragraphs of the statement of claim filed in the Current Proceedings are identical (or nearly identical) to paragraphs of the statement of claim that had been filed in the First Proceedings. 18However, the paragraphs that are different relate to the Defendant. For example, in paragraph 2 of the statement of claim, it is alleged that the Defendant "[A]t all material times ... was a retired business woman and investor ...". In paragraph 6, it is asserted that the Defendant, at a meeting (earlier referred to in the statement of claim) "and at all material times thereafter, remained silent and took no steps to correct or amend any of the representations ... or to inform the plaintiff of the true financial position of James and Jonathan or that they did not have the financial means to support their guarantees". 19In paragraph 23, the Plaintiff asserts the Defendant "by failing to correct or change any information previously given to the plaintiff, implied or represented to the plaintiff that James and Jonathan were in a position to meet their guarantees should they be called on" and in paragraph 24, that the plaintiff "[I]n agreeing to advance further funds ... relied upon the matters set out above". 20Finally, in paragraph 51, the Plaintiff asserts that had the Defendant "informed the plaintiff of the true financial position of James and Jonathan or that they did not have the financial means to support their guarantees, the plaintiff would not have advanced any of the funds that she did ... or have entered into the agreements which obliged her to do so". 21The substance of the Plaintiff's claim against the Defendant in the Current Proceedings is that she "engaged in misleading and deceptive conduct by remaining silent and taking no steps to correct, or amend, those representations" and that "because they (the Plaintiff and the Defendant) were in a relationship of mutual trust and confidence and the advances made by the Plaintiff were indirectly for the benefit of the Defendant, the Defendant was a fiduciary of the Plaintiff and breached her duties as such". 22Although it may require some amendment and/or further particulars, the Plaintiff claims she has suffered loss and damage and has estimated the quantum of that loss and damage in the amount of about $2,158,741.71. In calculating the loss, she has referred to amounts that she has received from the Defendant and from, or on behalf of, Mr Grevler, both before and after the conclusion of the First Proceedings. 23At the hearing of the notice of motion, the Plaintiff accepted that she cannot rely upon findings made by Rein J (unless not disputed by the Defendant) to establish the liability of the Defendant in the Current Proceedings, or the findings regarding the quantum of damages sustained by her for which she asserts the Defendant is liable. Thus, she accepts that she will have to establish her claim against the Defendant as to liability and quantum.

The Submissions of the Parties on the notice of motion 24The Defendant, by her counsel, contended (in writing): "19. Because the present statement of claim is based on the same failure and alleges the same cause of action as against Grevler, the present case clearly seeks to relitigate the identical issues that were determined in the First Proceedings, thus threatening the integrity of the administration of justice and raising the prospect of inconsistent judgments. See Rippon at [36] -[37]. 20. No reason is given why the Plaintiff could not have pleaded all of her claims against the Defendant in the First Proceedings. Since, in fact, the Plaintiff reasonably could and therefore should have done so, these proceedings against a fresh party are clearly an abuse of process. The proceedings should be struck out as abusive because the causes of action sought to be raised have actually been determined and are "res judicata" or give rise to "issue estoppel". 21. Either the Plaintiff is estopped (ie "Anshuned") from bringing the instant proceedings, or the proceedings are an abuse of process. See Rippon v Chilcotin Pty Ltd [2001] 53 NSWLR 198." 25At the hearing of the notice of motion, the Defendant, by her counsel, Mr M J Stevens, disavowed reliance upon res judicata or issue estoppel and specifically stated that the written submissions relating to each were not relied upon. 26At the hearing, each counsel supplemented his written submissions with oral submissions. The Defendant also referred to s 56 of the Civil Procedure Act 2005. More particularly, the Defendant, by counsel, orally submitted: (a) The causes of action pleaded against the Defendant (breach of fiduciary duty and misleading and deceptive conduct) were determined in the First Proceedings. The representations made by Mr Grevler, alleged to have been made in the presence of the Defendant, that the representations were false and misleading to the knowledge of the Defendant, who did not correct them, and that they were relied upon by the Plaintiff, will all be fundamental to establishing the causes of action against the Defendant. These issues were determined in the First Proceedings. (b) As a non-party witness, the Defendant was unrepresented in the First Proceedings, she could not cross-examine other parties, and had no standing to appeal findings of fact or law. (c) The Defendant was a person who could have been joined as a party in the First Proceedings, and the Plaintiff has proffered no good reason why she was not. (d) There is no evidence of any newly discovered facts relevant to the Plaintiff's claim against the Defendant that provide a basis for the commencement of the Current Proceedings. (e) The Defendant will incur substantial costs in defending the Current Proceedings. There will also be a cost to the community in court time being spent on the Current Proceedings. (f)The potential exists for the judgment in these proceedings to "conflict" with the judgment in the First Proceedings. For example, the trial judge may find that the Plaintiff did not rely upon the representations said by her to have been made. 27The Defendant then submitted, "because of the First Proceedings ... and the judgment therein, that the Plaintiff cannot, or should not, be permitted to maintain these proceedings". 28The Plaintiff, by her senior counsel, Mr M R Aldridge, contended: "6. There is no evidence of an abuse of process. The Plaintiff does not contend for different findings to those she obtained in the first hearing. 7. There is no possibility of conflicting judgments anyway because that principle only applies where the Plaintiff lost in the First Proceedings. See Haines v Australian Broadcasting Corporation (1995) 43 NSLR 404 at 414 quoted with approval by the Court of Appeal in Rippon v Chilcotin at [31]. 8. The principle of unreasonableness does not apply as between the present Plaintiff and Defendant. In any event there is no evidence of unreasonableness. The present Defendant incurred no costs and expenses in relation to the first hearing because she was not a party. She is not bound by any of the findings in that case. The Plaintiff does not seek different findings of fact to those she obtained in the first hearing. As appears from the Statement of Claim itself the Plaintiff has gained the benefit of access to Mr Grevler's insurance policy. It was reasonable in the first instance to sue an insured Defendant and only if there was a shortfall to sue the other parties in the syndicate. 9. In short [the Defendant] is no worse a position, to say the least, than if she had been sued in the First Proceedings. There is no evidence of unreasonableness at all. 10. For the avoidance of doubt it is submitted, in any event that Anshun principles do not extend to proceedings between different parties." 29Senior counsel's oral submissions were directed to relevant parts of different judgments in other cases, to some of which I shall refer, that were said to support the written submissions. 30In the Defendant's "Reply Submissions" dated 30 April 2012, her counsel contended: "1. In Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, the High Court laid down the principles which came to be known as "Anshun estoppel". In essence, a party can be prevented from making claims which should have been pursued in the former proceedings. 2. The test laid down is one of reasonableness. That is, a party cannot raise an issue in subsequent proceedings in circumstances in which it is unreasonable for them not to have raised them in the First Proceedings. If it is unreasonable, that party may be "estopped" (or prevented) from doing so, effectively losing the right to make that claim at all. 3. In Solak v Registrar of Titles & Ors [2011] VSCA 279, the Court said at [28] that "the purpose of Anshun is not merely to protect defendants. It also seeks to maintain the integrity of and public confidence in the justice system by preventing inconsistent judgments and to conserve scarce court resources by minimising re-litigation of the same issues in multiple proceedings." 4. It seems that an Anshun estoppel may arise even though the parties to the second proceeding are not the same as first. Equuscorp Pty Ltd & Anor v Acehand Pty Ltd & Ors [2010] VSC 89 at [27]. 5. In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] 258 ALR 14 at [33] French CJ noted that "abuse of process principles may be invoked to prevent attempts to litigate that which should have been litigated in Earlier Proceedings as well as attempts to re-litigate that which has already been determined." 6. Abuse of process principles may be broader than Anshun estoppel principles. Equuscorp Pty Ltd & Anor v Acehand Pty Ltd & Ors [2010] VSC 89 at [32]." 31The Defendant did not submit that the Plaintiff's claim in the Current Proceedings was frivolous, or vexatious, or was one that must necessarily fail. 32Each party also sought, and was granted, leave to file supplementary submissions on matters raised during argument, which matters had not been the subject of submissions by either (the relevance of the proportionate liability provisions Part 4 of the Civil Liability Act 2002, and on the decision of the Court of Appeal in Kermani v Westpac Banking Corporation [2012] VSCA 42). 33In his supplementary written submissions, counsel for the Defendant submitted that: "8. The Plaintiff's claims against Grevler in the prior proceedings were unquestionably claims "for economic loss" in "an action for damages" arising from "a failure" to take reasonable care" (or for contravention of s42 of the Fair Trading Act 1987). The Plaintiff's claims therefore were "apportionable claims" within the meaning of section 34(1) of the CLA and Grevler was, in terms of s 34(2) of the CLA, a "concurrent wrongdoer" (along with James, Jonathan and Ingram) in respect of apportionable claims. ... 11. In the result, the Court concluded at [90] and [112] that the Plaintiff was entitled to recover the amount of her entire investment from Grevler since it was procured as a result of his breaches. The Court accordingly awarded judgment in favour of the Plaintiff for the entirety of her loss, namely $2.912 million, adjudging Grevler to be wholly responsible for the Plaintiff's loss in respect of apportionable claims with no need to limit his liability under the CLA. 12. These proceedings are abusive because they seek an inconsistent judgment. As noted, Rein J adjudicated in the First Proceedings that Grevler was completely responsible for Burns' loss - both as the wrongdoer more actively (if not solely) engaged in the activity causing Burns' loss, and also as the wrongdoer more able effectively to prevent Burns' loss happening. In these proceedings, Burns is seeking to change the comparative responsibility for her loss as between Grevler and Ingram. The requirement for an inconsistent judgment (which is what Burns would need in order to succeed) is precisely the mischief the Anshun Doctrine seeks to avoid. See Solak v Registrar of Titles & Ors [2011] VSCA 279 at [28] (holding that the purpose of the Anshun Doctrine "is not merely to protect defendants. It also seeks to maintain the integrity of and public confidence in the justice system by preventing inconsistent judgments and to conserve scarce court resources by minimising re-litigation of the same issues in multiple proceedings, 13. Moreover, the present proceedings are abusive because Ingram is now denied the benefit of Part 4 of the CLA in respect of identical apportionable claims. Had Ingram been named as a defendant in the First Proceedings the provisions of Part 4 of the CLA clearly would have applied and Ingram would have been able to seek an apportionment of any liability under section 35(1). Now, however, she cannot do so because section 35(3) only allows the Court to apportion responsibility "between defendants in the proceedings". However section 36 of the CLA prevents Ingram from pursuing contribution or indemnity from Grevler (who was "a defendant against whom judgment [was] given under this Part as a concurrent wrongdoer in relation to an apportionable claim") and, under section 38, prevents Ingram from rejoining Grevler as a defendant for the purposes of an apportionment." 34Counsel for the Defendant reiterated, by way of compendious submission, that if she was a concurrent wrongdoer, the Defendant, was clearly prejudiced by the Current Proceedings because she was denied the benefit of the proportionate liability provisions of the Civil Liability Act. Alternatively, he submitted that the Current Proceedings were "doomed to failure (and therefore abusive and should be dismissed) because the proportionate liability regime created by Part 4 of the CLA applied to the liability of Grevler in the first proceedings and he was adjudicated to be wholly liable": see, Paragraph 5 of "Defendant's Further Submissions pursuant to Leave". 35Counsel then, perhaps in anticipation of the Plaintiff's submissions, referred to s 37 of the Civil Liability Act, which provides: "(1) In relation to an apportionable claim, nothing in this Part or any other law prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any damage or loss from bringing another action against any other concurrent wrongdoer for that damage or loss. (2) However, in any proceedings in respect of any such action the plaintiff cannot recover an amount of damages that, having regard to any damages previously recovered by the plaintiff in respect of the damage or loss, would result in the plaintiff receiving compensation for damage or loss that is greater than the damage or loss actually sustained by the plaintiff." 36He submitted: "14. Moreover, section 37 of the CLA does not justify the bringing of these proceedings against Ingram. Section 37 only operates to permit a plaintiff to bring a subsequent action against a concurrent wrongdoer where a plaintiff has previously recovered judgment against a concurrent wrongdoer but only for an "apportionable part of any damage or loss". 15. Here Burns recovered a judgment against Grevler for the totality of her loss - not just for an apportionable part of it. Under section 37, Burns cannot claim the amount of $2.9 million against Ingram. See Catchpole v Elders Bangalow [2008] NSWCTTT 1450 (a landlord who was awarded $12,000 against his tenant in an earlier suite could not later claim this amount against his agent in relation to an apportionable claim. In that case, the Tribunal held that under s 37 of the CLA the apportionable component of the loss claimed against eth agent could only be the total claimed in the proceedings less the $12,000 already recoverable - but not paid - from the tenant)." 37Finally, counsel for the Defendant dealt with the decision of the Court of Appeal in Victoria in Kermani v Westpac Banking Corporation. He submitted that the decision did not militate against the relief sought by the Defendant but supported it. Again, he referred to the test as one of reasonableness ("no evidence ... why it was not reasonable to sue Ingram ..."). 38Senior Counsel for the Plaintiff, in his supplementary written submissions, wrote: "1. It is incorrect to say, as the Defendant has done at paragraphs 5, 11 and 16 of her Further Submissions that there has been a finding of apportionable liability to Mr Grevler for 100 per cent of the claim. There was no such finding. Apportionable liability simply was not raised before Rein J. No such finding can be inferred or implied. 2. Paragraph 13 of those Submissions also mis-states the effect of the Act - section 35(1)(b) gives the benefit of these provisions to the Defendant - and not the other way around. Whilst rights of contribution are curtailed defendants who raise the issue are only liable to the plaintiff for their proportion of the damages thus leading to the same result. ... 4. The Plaintiff is not asserting any case inconsistent with the judgment of Rein J. There have been no findings of apportionable liability so no case inconsistent with any such findings can be made. The Defendant, of course, is entitled to pursue any such case she sees fit. 5. Importantly, section 37 provides a complete answer and preserves the Plaintiff's right to bring these proceedings. Assuming the Plaintiff's loss is an apportionable claim section 37(1) entitles the Plaintiff to sue another defendant for that loss notwithstanding she has already obtained judgment against a concurrent wrongdoer but section 37(2) operates so as to prevent the plaintiff recovering compensation (that is actually recovery as opposed to judgment) greater than the loss. The section is similar to section 5(1)(b) of the Law Reform Miscellaneous Provisions Act 1946. In Bracks v Smyth-Kirk [2008] NSWSC 930 at [16], [52] - [53] McCallum J took into account both the judgment and the actual recovery of compensation. 6. The Defendant's submission that section 37 only applies where there is a judgment "for an apportionable part" is misconceived. Firstly the Defendant asserts the judgment is for an apportionable part (100%) in other parts of the submissions. Secondly, if the entire claim against Mr Grevler was an apportionable claim any judgment against him must be for an apportionable part. If not, then the sections don't apply. Thirdly, the section refers to an apportionable claim, as opposed to a determined portion as the Defendant's submissions suggest. 7.Thus, not only is the Plaintiff not asserting a case inconsistent with the judgment the proceeding are expressly permitted by section 37 of the Civil Liability Act." 39In relation to Kermani v Westpac Banking Corporation, senior counsel for the Plaintiff said that he did not wish to make any additional submissions as the case did not take the matters upon which submissions had been made any further.

The Statutory Framework upon which the Defendant's application is brought 40The Defendant relies upon UCPR, rule 13.4, which relevantly provides in sub-rule (1)(c), that if in any proceedings, it appears to the court that in relation to the proceedings generally, or in relation to any claim for relief in the proceedings, the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. 41The Defendant also relies upon UCPR, rule 14.28, which relevantly provides in sub-rule (1)(c), that the court may, at any stage of the proceedings, order that the whole, or any part, of a pleading be struck out, if the pleading is an abuse of the process of the court. 42In a case involving either of the rules, the Court may receive evidence on the hearing of an application for an order. 43Section 23 of the Supreme Court Act 1970 provides that the Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales. Undoubtedly, that includes dismissing, or staying, proceedings that constitute an abuse of process. (I was referred to no decision under that section that would give any guidance as to its applicability to the facts of the present case.) 44As stated, the Defendant's counsel also referred to s 56(1) of the Civil Procedure Act 2005, which requires the court "to facilitate the just, quick, and cheap resolution of the real issues in dispute or proceedings", submitting that the present application must be considered in the context of that section. 45To conduct litigation in a manner that is contrary to the principle that litigation should be justly, speedily and economically conducted could amount to an abuse of process. 46Despite seeking an order for a stay of the Current Proceedings, counsel for the Defendant did not refer to s 58 of the Civil Procedure Act, which, relevantly, provides that in deciding whether to make any order granting a stay of proceedings and the terms in which any such order is to be made, the court must seek to act in accordance with "the dictates of justice". That notion is developed in s 58(2), which requires the Court to have regard to ss 56 and 57 and permits the Court to have regard to other relevant matters including those set out at s 58(2)(b) (i) - (vii). Thus, both ss 56 and 57 is statutorily compulsory, whilst the factors in s 58(2)(b) may be taken into account. 47In seeking to prevent an abuse of its process the court is exercising a form of discipline over parties to the litigation. Yet, in doing so, the court's procedural rules and principles must always be directed at doing justice between them. 48A decision to stay or dismiss proceedings on the basis that they are an abuse of process involves the exercise of discretion: Bracks v Smyth-Kirk [2009] NSWCA 401, per McColl JA, at [144].

Anshun Estoppel 49What has been described as "Anshun" estoppel rests on the principle that a party to litigation should bring forward his, her, or its, whole case, so that the court will not permit that party to reserve a claim and make it later when that claim could, and should, have been made in earlier proceedings. 50In Henderson v Henderson (1843) 3 Hare 100, at 115; 67 ER 313, at 319, Sir James Wigram VC said: "... where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of [a] matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." 51In Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, at 598, Gibbs CJ, Mason and Aickin JJ approved that statement of principle. 52At 602, their Honours said that to ask whether "the issue in question was so clearly part of the subject matter of the initial litigation and so clearly could have been raised that it would be an abuse of process to allow a new proceeding" was "not one of great utility". 53Rather, the test their Honours stated at 602-603 was: "... there will be no estoppel unless it appears that the matter relied upon ... in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to have relied on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiffs' claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of a particular issue, motives extraneous to the actual litigation, to mention but a few." 54In Equuscorp Pty Ltd v Acehand Pty Ltd [2010] VSC 89, Hollingsworth J, discussing Anshun estoppel (albeit in the context of an amendment of pleadings) said: "[23] An Anshun estoppel may arise where a matter sought to be raised by way of claim or defence in a later proceeding is so closely connected with the subject matter of an earlier proceeding, that it was to be expected that it would have been relied upon in that earlier proceeding. No such estoppel arises unless it appears that the matter relied upon in the later proceeding was "so relevant to the subject matter of the first action that it would have been unreasonable not to rely upon it." [24] Although Anshun itself involved a failure to raise a defence in an earlier proceeding, the principle applies equally in respect of a proceeding on a cause of action which should have been raised in a previous proceeding. [25] A significant factor in determining the unreasonableness of refraining from pursuing a claim relates to whether there arises the potential for conflicting judgments. [26] In considering whether an Anshun estoppel arises, the question is not whether it would have been reasonable for the person in the present plaintiffs' position to have taken a different course, but whether it was unreasonable for that person to pursue the course of action which they in fact took. (Omitting citations) 55In the present case, the Defendant submitted that an Anshun estoppel may arise though the subsequent action is against a party who was not a party to the earlier action: K Handley, et al: Res Judicata, 4th ed (2009) LexisNexis UK, at 316, [26.14]. 56In Johnson v Gore Wood & Co [2002] 2 AC 1, Lord Bingham, at 32, said: "Two subsidiary arguments were advanced ... in the courts below and rejected by each. The first was that the rule in Henderson v Henderson ... did not apply to Mr Johnson since he had not been the plaintiff in the first action ... In my judgment this argument was rightly rejected. A formulaic approach to application of the rule would be mistaken. [The company] was the corporate embodiment of Mr Johnson. He made decisions and gave instructions on its behalf. If he had wished to include his personal claim in the company's action, or to issue proceedings in tandem with those of the company, he had power to do so." 57In Redowood Pty Limited v Link Market Services Pty Limited (formerly Known As Asx Perpetual Registrars Limited) [2007] NSWCA 286, Hodgson JA (with whom Mason P and Bryson AJA agreed) said at [45]: "[45] In cases where the earlier proceedings and the later proceedings are between the same parties, as in Anshun itself, a finding of unreasonableness in not raising a matter in the earlier proceedings would almost inevitably mean that the later proceedings were oppressive and an abuse of process. Where the parties are different, the test of unreasonableness is still relevant; but in my opinion it must either be considered not conclusive, or else must be understood as involving unreasonableness of such a nature that the later proceedings against different parties are an abuse of process." 58At [50], his Honour commented: "[50] In my opinion also, the approach of the primary judge to the somewhat analogous case of a breach of warranty of authority was too sweeping. In cases such as that, and more generally where a plaintiff may have alternative remedies against different parties, to suggest that a plaintiff should generally sue all of them, barring exceptional circumstances, would be to encourage complex and lengthy litigation, and promote the incurring of costs where there is no certainty that a Bullock or Sanderson order would be obtained. In my opinion, plaintiffs should be permitted reasonable latitude in deciding whether to sue just one defendant, or to join a number of defendants in alternative claims." 59Davies J in Solak v Registrar of Titles No 2 [2010] VSC 146, at [12], said: "The guiding consideration where an action is commenced against a party that was not a party to the earlier action is whether there is such a close connection between the actions, albeit against different defendants, that it would be expected that the claims would all be dealt with in the one proceeding, thereby avoiding multiplicity of legal proceedings and the possibility of conflicting or inconsistent judgments." (Footnotes omitted) 60In Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245, Giles JA, said: "[39] Anshun estoppel is sometimes referred to as an extended res judicata doctrine. As was succinctly stated by Handley AJA, with whom Allsop P and Tobias JA relevantly agreed, in Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 434 at [60], "[t]he Anshun test is based on the reasonableness or otherwise of the conduct of a litigant in earlier proceedings". The statement may need to be supplemented to allow for the conduct of a person who was not a litigant in earlier proceedings, but its point is the test of unreasonableness." 61In Charben Haulage Pty Ltd (in liq) V Beilby [2010] NSWSC 510, Hislop J at [57] concluded that "the Anshun principle may be applied where the later proceedings are against a different defendant, at least, where conflicting judgments may result". 62In Equuscorp Pty Ltd v Acehand Pty Ltd, Hollingsworth J also said: "[27] It seems that an Anshun estoppel may arise even though the parties to the second proceeding are not the same as the first. However, as McColl JA (with whom Giles and Campbell JJA agreed) said in the recent decision of the NSW Court of Appeal in Habib v Radio 2UE Sydney Pty Ltd: Although there may be "no question ... of oppression and unfairness" where the parties in the second action "were not parties to the earlier action", the new proceedings may threaten the integrity of the administration of justice if they raise the prospect of conflicting judgments." 63In Solak v Registrar of Titles [2011] VSCA 279, Warren CJ (with whom Neave JA and Hargrave AJA agreed), after referring to a number of the authorities mentioned above, said, at [70] - [71]: "[70] All of the Australian cases to which the court was referred where a defendant who was not a party to the first proceeding was able to successfully rely on Anshun estoppel in the second proceeding involved the estopped plaintiff attempting to assert in the second proceeding some proposition inconsistent with the judgment in the first proceeding. Even if such a collateral attack by the plaintiff is not a necessary precondition for Anshun estoppel, its absence is a significant factor militating against a finding that Anshun estoppel has arisen. [71] It is not necessary in this case to decide whether special principles or a different test applies where the person asserting Anshun was not a party to the first proceeding. It is clear that the test is at least as strict as the test applicable in a case where the parties are the same. Applying that test, I am satisfied that no Anshun estoppel arises in this case." 64It follows, from these authorities that, even though the cases are replete with references to "the same parties", the Defendant's submission that an Anshun estoppel may arise though the subsequent action is against a party who was not a party to the earlier action should be accepted. 65As stated, the test whether an Anshun estoppel arises is one of unreasonableness - deciding whether there is such a close connection between the actions, albeit against different defendants, that it would be expected that the claims would all be dealt with in the one proceeding, thereby avoiding multiplicity of legal proceedings and the possibility of conflicting or inconsistent judgments. 66As Allsop P said in Champerslife Pty Ltd v Manojlovski at [3], this involves "a value judgment to be made referable to the proper conduct of modern ligation" or "an evaluative element based upon what a litigant could reasonably have been expected to do in the earlier proceeding": Solak v Registrar of Titles (No 2) at [8]-[12]. 67The answer to the question should not be made "mechanistically": see also, C G Maloney Pty Ltd v Noon [2011] NSWCA 397, per Campbell JA at [60]-[62] (with whom Tobias AJA agreed) and Handley AJA at [142]-[143]. It requires the court to consider all the circumstances, not simply to identify common facts in, or subject matter of, both proceedings. 68In Whelan Kartaway Pty Ltd v Mark Donnelly and Ors [2012] VSC 45, Davies J, at [23], noted that "[T]he authorities establish that a finding of Anshun estoppel should not be made lightly and a consideration of all the relevant facts bearing on the question of "unreasonableness" is required. This may include the character of the previous proceeding, the scope of any pleadings, the length and complexity of any trial, any real or reasonably perceived difficulties in raising the relevant claim earlier, and any other explanation for the failure to raise the claim previously". 69A similar statement had been made in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, by McColl JA (with whom Giles and Campbell JJA agreed) at [84]-[85]: "84 A strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form: see Bazos and Anor v Doman and Ors [2001] NSWCA 347 (at [44]) per Stein JA (Priestley and Beazley JJA agreeing) and the authorities to which his Honour refers. In determining whether an Anshun estoppel has been established, the court inquires into realities and not mere technicalities: R v Humphrys [1977] AC 1 (at 41) per Lord Hailsham; cited with approval by Handley JA (Young CJ in Eq agreeing) in Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355 (at [19]). The Court can look at "any material that shows what issues were raised and decided": Rogers v R (at 263) per Brennan J. 85 In considering whether an Anshun estoppel has been established it is necessary to bear in mind that "shut[ting] out a claim ... a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation...is a serious step, [and] a power not to be exercised except 'after a scrupulous examination of all the circumstances' ": Ling v Commonwealth [1996] FCA 1646; (1996) 68 FCR 180 (at 182) per Wilcox J, approved in Bazos (at [45]) per Stein JA (Priestley and Beazley JJA agreeing); see also Brisbane City Council v Attorney-General (Qld) [1979] AC 411 (at 425) per Lord Wilberforce." 70The mere fact that the matter could have been raised and the defendant could have been joined does not mean that it should have been raised or the defendant should have been joined for the operation of the estoppel. It will be for the Defendant to establish that it could, and should, have been raised or that the defendant should have been joined. Then, the question will be whether it was unreasonable to defer reliance upon the cause of action against a different defendant. 71In Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; (1990) 169 CLR 332, at 346, Brennan and Dawson JJ said: "a plaintiff who has an unadjudicated cause of action which can be enforced only in fresh proceedings cannot be precluded from taking fresh proceedings merely because he could have and, if you will, should have counterclaimed on the cause of action ... We do not read the majority judgment in ... Anshun as holding the contrary, except in a case where the relief claimed in the second proceedings is inconsistent with the judgment in the first." 72In Port of Melbourne Authority v Anshun Pty Ltd Gibbs CJ, Mason and Aickin JJ, at 603, also explained that: "there are a variety of circumstances ... why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few." 73As stated, one circumstance bearing on "unreasonableness" is the potential for the judgment in the later proceeding to "conflict" with the judgment in the earlier proceeding. On this question, Gibbs CJ, Mason and Aickin JJ referred, at 603, to Brewer v Brewer [1953] HCA 19; (1953) 88 CLR 1, the discussion in which they described as "illuminating". In that case, Fullagar J (with whom Dixon CJ agreed), at 15, made clear that the nature of a conflicting judgment was one that contradicts an assumption that is "fundamental" to the earlier decision, "in the sense that, if the assumption had not been made, the decision must have been different". 74In Port of Melbourne Authority v Anshun Pty Ltd, their Honours, continued, at 603-604: "By "conflicting" judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that hey appear to declare rights which are inconsistent in respect to the same transaction." 75In Triantafillidis v National Australia Bank Ltd (1995) V ConvR 54-536, at p 66-367, which case involved a permanent stay, Ormiston JA held that unless the alleged unreasonableness is "manifest", (e.g. if the potential judgment would be plainly inconsistent), the party is entitled to have both the questions of principle and the issues of fact resolved upon a trial. His Honour said at 66-367 (omitting citations): "Even if it were not appropriate to agree with Toohey J that the precise scope of Anshun is not yet settled, the majority judgment in Anshun's Case appears to require a determination whether the plaintiff in the second action would have been unreasonable not to rely upon its later claims in the first action and for that purpose the resolution of each case 'depends upon a meticulous scrutiny of its own facts'. In part the majority in Anshun's Case relied upon the absence of any explanation by the appellant to adduce evidence as to why it failed to raise the relevant issue in the first action. If this be the kind of necessary enquiry which Anshun's Case requires, then it is not ordinarily appropriate that it be dealt with upon an application for a summary judgment or stay. Unless the alleged unreasonableness is manifest (e.g. if the potential judgment would be plainly inconsistent), the appellant is entitled to have both the questions of principle and the issues of fact resolved upon a trial and upon the basis of precisely pleaded defences." 76As to a finding of unreasonableness, Bryson AJ in R&J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232 said: "23 In my opinion a finding that it was unreasonable not to bring a claim in some earlier litigation is not a finding to be made lightly. In this context unreasonableness is a severe test, to be distinguished from a test of inconvenience, even severe inconvenience. Consideration starts at the point that there is free access to courts and that it is not compulsory to bring forward all claims on related subjects at the same time. This is well illustrated by the outcome in Cromwell v County of Sac [1876] USSC 62; (1876) 94 US 351 cited in Anshun at 599."

Abuse of Process 77There is no definition of what constitutes "an abuse of process" in either the Act or the UCPR. It is a concept that defies precise definition in the abstract. It has repeatedly been said that the categories of abuse of process are not closed: Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd; Jeffery & Katauskas Pty Limited v Rickard Constructions Pty Limited [2009] HCA 43; (2009) 239 CLR 75. 78However, the High Court in Michael Wilson & Partners Ltd v Nicolls [2011] HCA 48; (2011) 282 ALR 685, at [87]-[90] Gummow ACJ, Hayne, Crennan and Bell JJ), discussed the general subject of abuse of process: "Abuse of process? [87] The third issue raised in the appeal to this Court was whether the Court of Appeal was right to hold that there was an abuse of process. It will be necessary to identify the different ways in which the Court of Appeal identified an abuse and the still further ways in which, in the course of the appeal to this Court, the respondents sought to identify an abuse. Before doing so, however, it is as well to say something shortly about the general subject of abuse of process. [88] It has long been recognised that the term "abuse of the process of the court" may be used in different senses. This case concerns an alleged abuse of the process of the Supreme Court of New South Wales. The respondents submitted that the abuse requires either, as the Court of Appeal held, an order staying the further prosecution of the New South Wales proceedings pending the final determination of the London arbitration, or the dismissal of at least some of the claims that MWP made in the New South Wales proceedings. [89] As the majority pointed out in Batistatos v Roads and Traffic Authority (NSW) "[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories". In Ridgeway v R, Gaudron J noted that the concept extended to proceedings "instituted for an improper purpose", and to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment". In Rogers v R, McHugh J concluded that, although the categories of abuse of process are not closed, many cases of abuse can be identified as falling into one of three categories: "(1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute." [90] One recognised class of abuse of process is where proceedings are instituted against a party in a second forum when there are proceedings against that party pending in another and the continuance of the second would be an abuse of the process of the first. In such a case, the continuance of the second proceedings would be an abuse if it would be unjustifiably oppressive to the party that is named as defendant in both forums. But, of course, that was not this case. The respondents to the appeal in this court were not, and could not have been, joined as respondents to the London arbitration. And it was not suggested that Mr Emmott could have been joined as a party to the New South Wales proceedings." (Omitting citations) 79In Walton v Gardiner [1993] HCA 77; 177 CLR 378, at 393, Mason CJ, Deane and Dawson JJ said: "... proceedings before a court should be stayed as an abuse of process if, notwithstanding the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings." 80In Jeffery & Katauskas Pty Ltd v Rickard Constructions Pty Ltd, French CJ, Gummow, Hayne and Crennan JJ, at [28], referring to Walton v Gardiner said: "In Walton v Gardiner the majority adopted the observation in Hunter v Chief Constable of the West Midlands Police that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be "manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right-thinking people". This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment". (Omitting citations) 81Heydon J, at [58] said: "[58] Words like "unfair", "unjust", "oppressive", "seriously and unfairly burdensome, prejudicial or damaging", "productive of serious and unjustified trouble and harassment" and "bring the administration of justice into disrepute among right-thinking people" are not words of exact meaning. Nor are the words "abuse of process" themselves. That notion is not "very precise". Hence it is not surprising that, as Lord Diplock said, "[t]he circumstances in which abuse of process can arise are very varied". "What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues." (Omitting citations) 82In Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142, Handley JA, with whom Mason P and Heydon JA (as his Honour then was) agreed), upheld an appeal for a stay in second proceedings, brought against an accountant, after earlier proceedings, against the vendor of a business, failed on a s 52 claim under the Trade Practices Act 1974. The statement of claim, as amended, in the proceedings against the accountants alleged that the Plaintiffs entered into the contracts in reliance on representations covering the 1988, 1989, 1990 and 1991 financial years. In the proceedings against the vendor, the representations had been confined to the figures for the 1991 financial year. 83The court held, at [28], that the second proceeding was "an attempt to litigate or re-litigate issues which were either decided in, or are barred by, the earlier proceedings". However, that conclusion was based upon the fact that as the Plaintiff had not been able to establish reliance upon representations in the figures for the 1991 financial year, he would hardly have been accepted if he had claimed to have relied upon the figures for the earlier financial years. In other words, the issue of reliance on the financial statements was an ultimate issue in the earlier proceedings. 84The essence of the reasons for judgment is found in the following passages of the reasons for judgment: "[29] The Judge also held that the issue of reliance on the expertise of the accountants had not been litigated in the Supreme Court and that a finding of reliance on that expertise would not conflict with the findings of Brownie J. This is true enough but ignored the fundamental fact that the purchasers would first have to prove that they relied upon the figures themselves before the question of reliance on that expertise could even arise. If they did not rely on the figures, they could not possibly have relied on the expertise required for their production. [30] The substance of the matter therefore is clear. The purchasers, disappointed with their bargain, sued their vendor in contract and in misrepresentation. They lost their case in misrepresentation and were disappointed with their modest recovery in contract. A few weeks before the expiration of the limitation period they sued the accountants for what is in substance the same misrepresentations. In the first proceedings they had to prove that they relied upon those misrepresentations. This turned on the evidence of Mr Hoefl, the contemporary documents, and the surrounding circumstances. The purchasers lost that issue and seek to re-litigate it against the accountants on substantially the same evidence in the hope that this time Mr Hoefl will be believed. [31] In Haines v Australian Broadcasting Corp (1995) 43 NSWLR 404 at 414 Hunt CJatCL distilled the following statement of principle from the authorities: "There are obviously limitations to striking out pleadings or causes of action as an abuse of process upon the basis stated in Reichel v Magrath ... The issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former ... It must be an issue which was necessarily determined in the earlier case, and one of importance to the final result. It must have been properly argued - by which I mean that ... the tribunal which decided it was an appropriate one to do so, that the parties were appropriate contradictors and that the issue was regarded by them as one of importance ... In normal circumstances the decision disposing of the issue must have been a final one ... There may also be circumstances in which, notwithstanding the absence of an appeal, it is clear that the earlier decision has overlooked some binding authority, or that it has caused the unsuccessful party a manifest injustice ... all the circumstances of the determination in the earlier case may be considered ...". 85In Re AWB Limited No 10 [2009] VSC 566, Robson J, at [264], set out principles relevant to abuse of process in the matter before him: "Abuse of process [264] The relevant principles to this application appear to be as follows: (1) The court possesses an inherent jurisdiction to stay its proceedings as an abuse of process if the proceedings are unjustifiably oppressive and vexatious or manifestly unfair or otherwise bring the administration of justice into disrepute among right-thinking people: Walton v Gardiner; Rogers v R203 and PNJ v R; Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd. (2) The jurisdiction should only be exercised in exceptional cases or sparingly with the utmost caution: Jago v District Court (NSW). (3) The jurisdiction to stay for abuse of process is not limited to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the court affording the affected party a fair hearing: Walton v Gardiner; Rogers v R. (4) The circumstances in which abuse of process may arise are extremely varied and the courts have refrained from limiting the circumstances to fixed categories: Hunter v Chief Constable of the West Midlands Police; Rogers v R; Batistatos v Roads and Traffic Authority (NSW). (5) In considering whether to grant a stay as an abuse of process, the court should undertake a weighing process involving a subjective balancing of a variety factors and considerations: Walton v Gardiner. (6) Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice: Walton v Gardiner. (7) These principles apply to civil penalty proceedings: Gill v Walton. (8) The rationale underlying the principle against double jeopardy, in that an individual should not be vexed twice for the same cause, is a factor properly to be taken into account in the weighing exercise: Walton v Gardiner. (9) It is prima facie vexatious to bring two extant civil actions where one will lie: Moore v Inglis; Thirteenth Corporation Pty Ltd v State. (10) This prima facie rule applies whether or not the two proceedings are in separate courts or one: Branir Pty Ltd v Wallco Pastoral Co Pty Ltd. (11) The prima facie rule applies where the issues overlap or significantly overlap or there is a similarity of subject matters of the proceedings. (12) The fact that the parties may not be identical, or the relief different, does not necessarily disentitle relief under this principle: Moore v Inglis. (13) In considering whether the rule should apply, the court should consider whether there was no reasonable justification for the second proceeding based on legitimate considerations of convenience, cost or the like: Thirteenth Corporation Pty Ltd v State. (14) 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. Regard may be had to: (a) the importance of the issue in and to the earlier proceeding, including whether its is an evidentiary or 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 proceeding; (f) the extent of the oppression and unfairness to the other party if the issue was 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: Rippon v Chilcotin Pty Ltd." (Omitting citations) 86Robson J, sitting as an acting Judge of Appeal, in Kermani v Westpac Banking Corporation at [97], referred to these principles. His Honour noted, also, at [112], that "[I]n considering abuse of process where second proceedings are taken raising the same or similar issues, it is not necessary that the plaintiffs or claimants be the same, if they are otherwise connected". This statement followed a reference to many of the passages quoted above. 87In Champerslife Pty Ltd v Manojlovski Handley AJA, at [114], said: "Earlier proceedings by one litigant could not make later proceedings by another an abuse of process unless there was a relevant connection between the litigants. Since the issue was abuse of process realities must be relevant. The 'broad merits-based judgment' excluded any narrow or artificial approach." 88His Honour's reference to 'broad merits-based judgment' was a reference to Lord Bingham in Johnson v Gore Wood & Co at 31: "It may very well be, as has been convincingly argued (Watt, "The Danger and Deceit of the Rule in Henderson v Henderson: A new approach to successive civil actions arising from the same factual matter" (2000) 19 CLJ 287), that what is now taken to be the rule in Henderson v Henderson has diverged from the ruling which Wigram V-C made, which was addressed to res judicata. But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same, that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the Court is satisfied ... that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings would be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the Court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in Earlier Proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before ... while I would accept that lack of funds would not ordinarily excuse a failure to raise in Earlier Proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim." 89It can be seen, from this passage, that the doctrine of abuse of process seeks to consider both public and private interests involved, while focusing attention on the critical question whether a party is abusing the court process by raising issues which she, he or it, has, or could have, raised in earlier proceedings. 90The onus of satisfying the court that there is an abuse of process, which is "a heavy one", lies upon the party alleging it: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 (at 529) per Mason CJ, Dawson, Toohey and McHugh JJ. The person alleging an abuse of process must establish the facts that make the further litigation an abuse. 91It seems to me that a defendant who, or which, was not a party to the earlier proceedings, is likely to have greater difficulty showing that the proceedings ought to be dismissed, or stayed, on the basis of an abuse of process than a defendant who, or which, is being sued for the second time: Henry v Brookfields [2007] NZHC 265, per Hansen J, at [9], referring to Bradford & Bingley Building Society v Seddon & Ors [1999] 1 WLR 1482; [1999] EWCA Civ 944.

Civil Liability Act 2002 92Because the Defendant relied upon the Civil Liability Act 2002 as founding an abuse of process, it is necessary to refer to the relevant part of that Act. 93A 'concurrent wrongdoer' is defined in s 34(2) of the Civil Liability Act as: "a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim." 94Under s 34(1), claims that are apportionable include claims for economic loss and damage to property, whether in contract, tort or under statute, arising from a failure to take reasonable care and claims for misleading and deceptive conduct. The definition includes causation "independently of each other", and one wrongdoer's acts or omissions can, independently, cause the same damage or loss as another wrongdoer's acts or omissions. 95In giving judgment for the plaintiff in a way which apportions responsibility 'between defendants', the court must determine the "amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss": s 35(1) of the Civil Liability Act. 96In Reinhold v New South Wales Lotteries Corporation (No 2) [2008] NSWSC 187, Barrett J (as his Honour then was), held that the references to "claims" in Pt 4 of the Civil Liability Act are references to "determined or decided claims that have been established as sources of liability" and that a person is only a "concurrent wrongdoer" when found to be so by the court (at [18]-[19]). 97His Honour, at [19], went on: "It seems to me clear that a person will be a "concurrent wrongdoer" only if the court makes findings about the existence of "loss or damage" and about which acts or omissions "caused" the loss or damage. It is only when those findings are made that it is possible to identify, as contemplated by s 34(2), each person whose acts or omissions, as found, "caused" the "loss or damage", as found. At that point, and not before, a person could be seen to be a "concurrent wrongdoer"." 98Ball J referred to Barrett J's decision with approval in Owners Strata Plan No 62660 v Jacksons Landing Development Pty Ltd [2011] NSWSC 415, at [15]. 99Ward J in George v Webb & Ors [2011] NSWSC 1608, at [306], noted, as Barrett J had, that "the proportionate liability provisions of the Civil Liability Act have made significant changes to the law, reshaping the solidary liability available under older statutory schemes concerning concurrent liability (such as s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW)) into a regime where concurrent wrongdoers are separately liable for that amount that reflects a proportion of the plaintiff's loss or damage and extending the class of claims different covered by the proportionate liability regime beyond actions in tort" (my emphasis). 100Importantly, in this case, Mr Grevler in the First Proceedings, did not, in his defence, assert that there was any person who was a current wrongdoer, thereby pleading what may be described as "the proportionate liability defence": Perpetual Trustees Australia Limited v Paladin Wholesale Funding Pty Limited [2011] FCA 473, at [49] per Emmett J. Mr Grevler did not allege a cause of action by the Plaintiff against the Defendant (or anyone else) in the First Proceedings. 101A central concept in identifying "concurrent wrongdoers" is that of a "single apportionable claim", that is to say claims in respect of the same loss or damage - even if the claims are based on more than one cause of action: Civil Liability Act, s 34(1)(a): Kayteal Pty Ltd v John Joseph Dignan & Ors [2011] NSWSC 197 at [66], per Brereton J. 102There can be no dispute that s 37(1) Civil Liability Act to which reference has earlier been made, expressly contemplates that a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any damage or loss, may bring another action against any other concurrent wrongdoer for that damage or loss, even though, under s 37(2), in any subsequent proceedings, the plaintiff cannot recover an amount of damages that, having regard to any damages previously recovered by the plaintiff in respect of the damage or loss, would result in the plaintiff receiving compensation for damage or loss that is greater than the damage or loss actually sustained by the plaintiff. 103Thus, prima facie, even a plaintiff who has been awarded damages in earlier proceedings has the right to invoke the jurisdiction and the powers of the court to seek the resolution of his, or her, dispute against other concurrent wrongdoers, at least until the first judgment is satisfied: Bracks v Smyth-Kirk at [150]. 104As has been made clear, by Giles JA (with whom other members of the Court of Appeal agreed) in Mitchell Morgan Nominees Pty Ltd & Anor v Vella & Ors [2011] NSWCA 390: "47 The effect of Pt 4 is far-reaching. It shifts the burden of irrecoverability because a co-wrongdoer cannot be found or is insolvent from the defendant wrongdoer(s) to the plaintiff, and extends to liability beyond liability in tort. As part of the scheme, a defendant must inform the plaintiff of a potential concurrent wrongdoer so that the plaintiff can consider claiming against that person also (ss 35A, 38). The plaintiff can later proceed against another concurrent wrongdoer, but cannot be over-compensated (s 37). But s 35 applies whether or not all concurrent wrongdoers are parties to the proceedings (s 35(4))." 105Thus, as was said in Bracks v Smyth-Kirk, at [154], "subsequent actions may be appropriate, for example, if the judgment debtor from whom the plaintiff first sought satisfaction of the judgment was impecunious, so that satisfaction might be sought from other judgment debtors until the whole of the judgment debt was paid". 106(I note that special leave to appeal to the High Court was refused in Bracks v Smyth-Kirk: Bracks v Smyth-Kirk [2010] HCA Trans 145 upon the basis that an appeal to the High Court would not enjoy sufficient prospects of success to warrant a grant of special leave to appeal.)

Determination 107I have considered the evidence read on the application, the oral and written submissions made, the reasons for judgment in the First Proceedings, the pleadings in both proceedings, as well as the relevant legal principles outlined. 108Overall, I am not satisfied that the proceedings brought by the Plaintiff against the Defendant should be stayed, or dismissed, on any of the bases relied upon. 109It has been said that "[D]ifficult questions of judgment can sometimes arise in a case in which an Anshun estoppel is asserted" (C G Maloney Pty Ltd v Noon at [73]). The same could be said about a case said to involve an abuse of process. I am satisfied that the present case does not raise any such difficulties. 110That the Defendant could have been joined as a party in the First Proceedings is not the subject of dispute by the Plaintiff. The maintenance of a claim that could have been part of an earlier one, should not, per se, be regarded as an abuse of process. To do so would require too rigid an approach, particularly in circumstances where the causes of action against the defendant in the earlier proceedings and those brought against a different defendant in the second proceedings are separate and distinct. As stated, merely because the Defendant could have been sued in the First Proceeding does not lead to the conclusion that she should have been. 111As stated earlier, and in rejecting a submission by the Defendant, the question is not whether it would have been reasonable to take the course of relying on a particular cause of action in earlier proceeding, because, more often than not, it is possible to have relied upon that proposed cause of action. The question is whether it was unreasonable to defer reliance upon the particular cause of action the plaintiff seeks to raise in the later proceedings. 112In this case, the duty owed by the Defendant to be declared and the breach of that duty, by the Defendant, if established, simply did not arise in the First Proceedings. No court has, yet, determined the respective liability, if any, of the Defendant. 113In addition, in the Current Proceedings, the Defendant's knowledge will be relevant. Her knowledge of the financial position of James and Jonathon did not have to be determined in the First Proceedings. Nor did the Plaintiff's reliance upon the Defendant's silence arise in the First Proceedings. 114It seems to me that who was present at the meeting, and what was said, or not said, by those present, when Mr Grevler made the representations, was an evidentiary, rather than an ultimate, issue in the First Proceedings. 115Neither do I find that the facts upon which the Plaintiff will rely in the Current Proceedings are so relevant to the subject matter of the First Proceedings that it was unreasonable for the Plaintiff not to have relied on them in the First Proceedings and bring the claims against the Defendant in those proceedings. The Current Proceedings will not be confined to facts determined in the First Proceedings. 116Merely because some of the facts will be common to both proceedings does not automatically lead to the view that the Plaintiff's conduct in not proceeding against her in the First Proceedings was unreasonable. The authorities to which I have referred reject a mechanical approach and require regard to all the circumstances. 117Nor do I find that there is such a close connection between the First Proceedings and the Current Proceedings, albeit against different defendants, that it would be expected that the claims would all be dealt with in the one proceeding, thereby avoiding multiplicity of legal proceedings and the possibility of conflicting or inconsistent judgments. 118I cannot be satisfied that a judgment in favour of the Plaintiff would conflict with the judgment in her favour already given because it would declare inconsistent rights in respect of the same transactions. In the First Proceedings, the Defendant succeeded in establishing reliance upon the representations made by Mr Grevler. In the Current Proceedings, a judgment that the Defendant is not liable to the Plaintiff because, for example, she had not engaged in misleading or deceptive conduct, or that the Plaintiff had not relied upon the Defendant's silence, or that the Defendant had not breached any duty of care owed to the Plaintiff, does not conflict with a judgment that Mr Grevler was liable to the Plaintiff for the damage she suffered for the reasons given by Rein J. 119Also, the Defendant is not bound by the findings made by Rein J and the Plaintiff cannot claim the benefit of any cause of action estoppel, or issue estoppel, against her. The Defendant was not a party to the First Proceedings, nor a privy to any party to the proceedings. It will be the Plaintiff who is unable to advance an inconsistent case and have to prove all of the matters that must be proved to enable success against the Defendant. 120Now, the Plaintiff seeks to recover the balance of the amounts to which she says she is entitled as a result of the conduct of the Defendant. The Plaintiff may well have taken the view in the First Proceedings that it would be pointless and wasteful to encumber the litigation against Mr Grevler with other parties and other claims. She was able to proceed against Mr Grevler in the hope that she would recover all to which she was entitled from him. No doubt, the necessity to sue the Defendant only emerged later when the judgment she obtained against him proved unenforceable in full. Now, she should not be prevented from bringing a claim against the Defendant. The principles to which I have referred must be applied so as to work justice, and not injustice, between the parties. 121As the Plaintiff submitted, the Defendant is in no worse position, these proceedings having been commenced against her. She did not incur any costs in the First Proceedings. The Current Proceedings do not involve a multiplicity of defendants, each of whom is separately represented, so the costs that she may incur are likely to be less. She may be inconvenienced by these proceedings, even severely inconvenienced, but that is not the test. 122Furthermore, consideration should be given to a plaintiff who is seeking to advance a case that it is not submitted is frivolous, vexatious or bound to fail, and where there is no suggestion that the plaintiff's case is not a genuine and legitimate one. Nor is there any evidence that not proceeding against the Defendant in the First Proceedings was a strategic decision on the Plaintiff's part to gain a litigation advantage. 123To dismiss the proceedings would be to deny the Plaintiff the opportunity of litigating, for the first time, questions that have not previously been adjudicated upon. Here, we are not concerned with a case where a court has decided the matter; but rather a case where the court has not decided the matter. 124Finally, permitting the Plaintiff a measure of freedom to sue who she wishes to, and when, is an important right that should not be interfered with unless it can be established that to allow her that freedom would be unreasonable. Where, as in the First Proceedings, the Plaintiff had alternative remedies against different parties, as has been put, "to require that she should sue all of them in the one proceeding, barring exceptional circumstances would be to encourage complex and lengthy litigation, and promote the incurring of costs where there is no certainty that a Bullock or Sanderson order would be obtained". 125Remembering, also, that the Civil Liability Act does not preclude a plaintiff, who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any damage or loss, from bringing another action against any other concurrent wrongdoer for that damage or loss, also leads to the conclusion that the Plaintiff's claim should not be summarily dismissed or stayed. (In stating this, I do not need to decide, and should not be taken to have decided, whether the Defendant and Mr Grevler are concurrent wrongdoers. That determination will be a matter for the trial Judge.) 126The Defendant in the pleadings will be entitled to identify Mr Grevler, and any other person, as one who she believes is, or may be, a concurrent wrongdoer in relation to the claim made against her. No doubt, she will also identify his relevant acts or omissions, and the causal connection between those acts or omissions and the losses in respect of which the Plaintiff now sues. Having raised these matters, even though Mr Grevler cannot be added as a party Defendant, the Court will be required to determine the liability, if any, of the Defendant, as a concurrent wrongdoer, in relation to that claim, and will limit the amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the Defendant's responsibility for the damage or loss, and may give judgment against the Defendant for not more than that amount. The court will compare the blameworthiness and causative potency of the conduct of each of them: Reinhold v New South Wales Lotteries Corporation (No 2) at [50]-[53], per Barrett J; Kayteal Pty Ltd v John Joseph Dignan & Ors at [71], per Brereton J. 127It follows that the Plaintiff's conduct in bringing the Current Proceeding is not unjustifiably oppressive to the Defendant. 128Taking into account all the circumstances, and remembering that the power to summarily dismiss, or stay, proceedings on the basis of Anshun estoppel, or as an abuse of process, is a power to be exercised cautiously, I am unable to conclude that the Defendant's motion should succeed and I decline to exercise my discretion to summarily dismiss or stay the Current Proceedings. 129Accordingly, I order that the Defendant's notice of motion is dismissed, with costs. 130The parties agreed that if the notice of motion was to be dismissed, they wished the matter to be referred to court annexed mediation pursuant to s 26 of the Civil Procedure Act. I am prepared to make that order and, as requested by them, shall make the appropriate orders and directions for that to occur at the time of publishing these reasons for judgment.

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