Butcher bht Duffy v Habkouk

Evidence on Motion

1. The applicant relied upon the following evidence: 1. affidavit of Douglas Eaton, solicitor, sworn 11 March 2021 - Exhibit A; and 2. further affidavit of Douglas Eaton, solicitor, sworn 22 March 2021 - Exhibit B.
2. The respondent tendered the following evidence (* indicates that the tender was objected to by the applicant): 1. affidavit of Sophie Kay-Noble, solicitor, sworn 6 April 2021 in, filed in 2020 proceedings- Exhibit 1; 2. Statement of Claim in 2018 proceedings - Exhibit 2; 3. Statement of Particulars in 2018 proceedings - Exhibit 3; 4. Amended Statement of Claim in 2018 proceedings, as amended on 24 August 2020 - Exhibit 4; 5. Amended Statement of Particulars in 2018 proceedings, as amended on 3 July 2020 - Exhibit 5; 6. affidavit of Peter Gerard Moore, solicitor, sworn 8 February 2018, filed in 2018 proceedings* - provisionally Exhibit 6; 7. affidavit of defendant sworn 16 June 2020, filed in 2018 proceedings* - provisionally Exhibit 7; 8. notice of motion dated 25 August 2020, filed in 2018 proceedings* - provisionally Exhibit 8; 9. further affidavit by Ms Kay-Noble sworn 25 August 2020, filed in 2018 proceedings* - provisionally Exhibit 9; 10. further affidavit of Sophie Kay-Noble, sworn 15 February 2021 filed in 2020 proceedings* - provisionally Exhibit 10; 11. affidavit of Sophie Kay-Noble, solicitor, sworn 25 February 2021 filed in 2020 proceedings* - provisionally Exhibit 11; and 12. affidavit of defendant sworn 25 February 2021, filed in 2020 proceedings* - provisionally Exhibit 12.
3. In respect of the evidence objected to by the applicant, rulings will be made as to its admissibility during these reasons.

Brief Statement of Facts Alleged by Plaintiff

1. The plaintiff was the daughter of Haydn Butcher. She was born on 12 February 2015. He died on 2 January 2018.
2. On 1 January 2018, in the early hours of the morning, the defendant ran up to the deceased and punched him in the face, causing him to fall to the ground and hit his head on the concrete. The incident occurred on New Year's Eve outside of the Lakes Hotel at The Entrance. Mr Butcher lost consciousness and was attended to by ambulance staff before being transported to the Royal North Shore Hospital in Sydney. He died the following day.
3. The defendant was arrested at a home in Bateau Bay on 1 January 2018 at 6:10pm. Initially he was charged with assault occasioning grievous bodily harm. The charge was upgraded to assault causing death upon the death of the deceased.
4. The plaintiff's actions are brought on the basis that the death of the deceased was caused by the battery inflicted by and/or negligence of the defendant. There appears to be no dispute that the defendant's actions caused the death of Mr Butcher.

The 2018 Proceedings

1. The 2018 proceedings were initially brought by Tara Susanne Duffy, who identified herself as a dependant under the Compensation to Relatives Act 1897 (NSW) ('CTR Act'), and on behalf of Kalais Butcher, the daughter of the deceased, whom she identified as a dependant under the age of 18 years. Ms Duffy alleged that she had standing by reason of the fact that she was the partner of the deceased. Ms Butcher's standing is indisputable as the daughter of the deceased. At some point prior to approval of the settlement, the statement of claim was amended with the effect that the child was the plaintiff and only dependent. Ms Duffy was appointed tutor.
2. In the Amended Statement of Claim, it was stated: 12.1 The plaintiff claims damages for loss of financial support and support having a financial value as set out in the Rule 15 particulars.
3. In addition, the plaintiff sought funeral and other expenses, together with interest.
4. In the Amended Statement of Particulars in the 2018 proceedings, it was claimed that Kalais was dependent, both financially and non-financially, upon her father. The statement of particulars set out claims for past loss of financial dependency, future loss of financial dependency, loss of superannuation benefits, past loss of non-financial dependency and future loss of non-financial dependency.
5. The losses in respect of financial dependency were expressed in a curious fashion. Rather than being based upon a dependency upon a portion of the deceased's income, it was expressed as comprising the following components: 1. paediatrician, $90 per week; 2. dietician, $27.50 per week; 3. speech pathologist, $2.00 per week; 4. neuropath, $18.00 per week; and 5. childcare, $150.00 per week.
6. Whilst it is entirely likely that the deceased's income may have been deployed for the medical treatment and care of his dependent, a claim for financial dependency is ordinarily not expressed in those terms. The manner of pleading suggests that the claim was for damages for treatment required as a result of nervous shock being caused by the death. I do not consider that this irregularity is sufficient to define the character of the proceedings, which are expressly stated to be for dependency under the CTR Act. The 2018 proceedings do not refer to mental harm or any form of injury to the plaintiff and do not include a claim for damages as made in the 2020 proceedings.
7. The 2018 proceedings were settled in the sum of $40,000, plus costs of $35,000, and the settlement was approved as required by s 76(3) of the Civil Procedure Act 2005 (NSW) ('the CPA').
8. The settlement came before me for approval on 3 and 10 September 2020. Orders approving the settlement were made on the latter date. The approval proceeded on the basis that it was only for a claim for financial and non-financial dependency under the CTR Act. The defendant's written submissions which were handed up on 10 September 2020, commenced with the following paragraph: "1. By amended statement of claim, the plaintiff brings a claim under the Compensation to Relatives Act 1893 in relation to the death of the plaintiff's father, Mr Haydn Butcher (hereinafter "the deceased") as a result of an alleged battery by the defendant."
9. No part of the settlement which was approved on 10 December 2020 related to damages for anything other than a claim under the CTR Act.
10. It cannot be said that the defendant was n anyway misled about the 2018 proceedings and the basis on which the settlement was approved. I do not understand any submission is made to that effect in any event.
11. Following the settlement and the approval of the settlement in the 2018 proceedings, the 2020 proceedings were commenced for Kalais, by her tutor Ms Duffy, by the filing of a statement of claim dated 17 December 2020.

The 2020 Proceedings

1. The 2020 proceedings are expressed to be a claim for mental harm under the Civil Liability Act 2002 (NSW) ('the CLA') and, in the alternative, at common law for a breach of duty of care owed by the defendant to the deceased. A question arose as to whether the CLA applies in respect of damages sought for intentional torts (see email from my Associate to Mr Quickenden dated Wednesday 15 September 2021 and his reply dated Thursday 16 September 2021 (MFI 9). Leaving that question to one side, the 2020 proceedings can be characterised as a claim for damages for mental harm, advanced on the basis that Kalais suffers one or more psychiatric conditions as a consequence of the shock caused by the death of her father.
2. In paragraph 11 of the Statement of Claim, the following psychiatric conditions are referred to: 1. Avoidance/Restrictive Food Intake Disorder; and/or 2. Trauma; and/or 3. Anxiety and Controlling Behaviours; and/or 4. Post-Traumatic Stress Disorder; and/or 5. Depression; and/or 6. Adjustment Disorder 7. because of her father's death.
3. The statement of particulars sets out four heads of damage: 1. past treatment expenses; 2. future treatment expenses; 3. non-economic loss; and 4. future loss of earning capacity and/or future economic loss.
4. In respect of past treatment expenses, the statement of particulars provides an estimate of $32,000.
5. In respect of future treatment expenses, the statement of particulars provides an estimate of $50,000 as a contingency for: 1. dietician sessions; 2. psychological sessions; 3. general practitioner visits; and 4. medication.
6. In relation to the claim for loss of earning capacity, the plaintiff seeks $300,000.
7. The documents relied upon as being served upon the defendant and referred to in the statement of particulars were letters from Dr Annabel Smith, dated 28 May 2020 and 16 June 2020, together with a medical certificate of Dr Smith dated 16 June 2020.

The Defendant's Application

1. The notice of motion was amended and filed in court with leave on 10 June 2021. Although prayer 1 refers to a summary dismissal pursuant to UCPR 13.4(1), the orders ultimately sought by the applicant were distilled to: 1. the dismissal of the proceedings as an abuse of process, pursuant to UCPR 13.4(1)(c); and/or 2. a permanent stay of the proceedings, pursuant to the principles of Port of Melbourne Authority v Anshun (1981) 147 CLR 89 (Anshun).
2. At the hearing of the matter on 10 June 2021, counsel for the respondent sought leave to put on further written submissions in respect of the applicant's motion. Leave was granted which, regrettably, triggered multiple rounds of submissions by both the applicant and the respondent. It is necessary to consider the submissions in the order in which they were advanced.

Applicant's Evidence

1. The applicant seeks to rely upon 2 affidavits of Douglas Eaton, sworn 11 March 2021 (Exhibit A) and 22 March 2021 (Exhibit B).
2. In Exhibit A, Mr Eaton, solicitor for the applicant, expressed the opinion that the current proceedings arise out of the same facts and between the same parties as the 2018 proceedings, and allege the same psychiatric injuries as the 2018 proceedings.
3. Whilst I accept that the 2018 and 2020 proceedings share facts and issues relating to liability, the facts and issues relating to damages are quite distinct and separate. I reject the proposition that the 2018 proceedings raised a claim for damages for psychiatric injuries. Mr Eaton's affidavit is misleading in this regard.
4. Further, Mr Eaton expressed the opinion that the plaintiff could easily have raised the subject matter of the 2020 proceedings in the 2018 proceedings. I also reject that proposition. There is no evidence to suggest that the plaintiff had been diagnosed with a psychiatric injury at the time of the commencement of the earlier proceedings in April 2018. Such a diagnosis would be an essential element of any cause of action for damages in respect of mental harm.
5. The solicitor next suggested that the medical evidence in support of a psychiatric condition dated July 2020 was available before the "significant amendments" to the 2018 statement of claim and "clearly were intended to be used in those proceedings if the matter had not settled".
6. In my opinion, there is no basis for reaching that conclusion. The amendments to the 2018 statement of claim were to remove Ms Duffy as a dependant and nominating as tutor for Kalais. The medical documents referred to by Mr Eaton would not have been admissible in proceedings brought under the CTR Act. Further the 2018 proceedings were well advanced, with a hearing date already set. Amending those pleadings to include mental harm claim would have resulted in the hearing date being vacated and the 2020 proceedings delayed while the parties gathered evidence for the mental harm claim. Those proceedings had already been delayed by about 2 years whilst the parties waited for the defendant's criminal action to conclude. The further delay and costs which would have been occasions would the overriding purpose in section 56 of the Civil Procedure Act 2005.
7. In Exhibit B, Mr Eaton attaches an extract of the transcript of 3 September 2020, in which the tutor, upon enquiry by the Court, informed that she was happy with the settlement. That query was made of Ms Duffy so as to avoid her attending Court on a second occasion for the approval hearing. Her response was "look, I'm happy if my child is happy" (T23.29). The purpose of that affidavit is unclear. One might assume that Mr Eaton was attempting to demonstrate that the tutor was happy with the settlement and that it brought to an end all rights which the plaintiff had against the defendant. If that was his intention, it is unfounded.
8. In my opinion, Exhibit B does not advance consideration of any of the issues raised by the notice of motion.

Respondent's Evidence

1. The affidavit of Sophie Kay-Noble dated 6 April 2021 is Exhibit 1. In this affidavit, Ms Kay-Noble provides evidence as to the following: 1. Ms Duffy sought advice from the solicitors and first provided instructions on 30 January 2018, within one month of the death of Mr Butcher; 2. on or about 12 February 2018, counsel was briefed to advise; 3. part of that advice was that the plaintiff had 2 forms of claim. One was under the CTR Act and the other "potential claim" was for personal injury, "but only if the plaintiff sustained a psychiatric injury as a consequence of the deceased's death"; 4. counsel advised that the 2 forms of claim could not be pleaded together; 5. counsel further advised that the psychiatric injury claim would need medical evidence and did not need to be commenced at the same time as the CTR Act claim, but must be commenced within the limitation period. That is, it must be commenced on or before 1 January 2021; 6. on 3 September 2020, there was a discussion between Ms Kay-Noble and Ms Duffy to the effect that applying for approval in the CTR Act claim "would not prevent that plaintiff bringing a claim for psychiatric injury"; 7. on 3 September 2020 Ms Kay-Noble was informed by Ms Duffy that if the plaintiff's psychiatric injury claim had been included in the settlement then she would not have agreed to settle the 2018 proceedings; and 8. Ms Duffy had always believed that the plaintiff had a separate claim for psychiatric injury "if she could establish psychiatric injury".
2. None of these assertions were challenged.
3. Exhibit 2 is a Statement of Claim in respect of the 2018 proceedings. I note that it contains a typographical error in paragraph 9.1 where '2014' should read '2018'.
4. Exhibit 3 is the Statement of Particulars in respect of the 2018 proceedings, which contains the irregularity of particularising the claims for dependency in terms of medical expenses and the like.
5. Exhibit 4 is the Amended Statement of Claim of 24 August 2020, which had the effect of removing Ms Duffy as a dependent and installing her as tutor.
6. Exhibit 5 is the Amended Statement of Particulars in the 2018 proceedings, as amended on 3 July 2020.
7. Neither the amendment of the Statement of Claim or the Statement of Particulars had the effect of importing a claim for damages for personal injury (mental harm).
8. Exhibit 6 is an affidavit of Peter Gerard Moore sworn 8 February 2018. This affidavit sets out the basis for the claim and also the subsequent preservation orders in respect of the defendant's property.
9. Paragraph 5 stated: The plaintiff, on behalf of herself and her daughter, propose to make, inter alia, a Compensation to Relatives Claim against the defendant. I am taking steps to obtain relevant information for the purpose of briefing counsel to draft a statement of claim (emphasis added).
10. A careful reading of that paragraph would have alerted the defendant to the fact that the intention was to make a claim under the CTR Act, amongst other claims.
11. Exhibit 7 is an affidavit sworn by the defendant on 16 June 2020 providing information about his assets and liabilities, the criminal proceedings, the 2018 proceedings, his undertaking to the Court, and the need for refinancing.
12. In paragraph 17, in relation to the 2018 proceedings, the defendant stated: On 20 April 2018, the plaintiff, who I understand is the ex-partner of the deceased, commenced proceedings on behalf of herself and her child in the District Court at Gosford pursuant to the Compensation to Relatives Act 1897 (NSW) ("The Compensation to Relatives Act Proceedings").
13. It is clear from that affidavit that, prior to settling the 2018 proceedings, the defendant was aware that they related to a claim under the CTR Act. There is no suggestion that he was under the misapprehension that the 2018 proceedings included a claim for mental harm, or that his civil liability to the plaintiff was limited to the 2018 proceedings.
14. Annexure B to Exhibit 7 is a letter from Kernick Law to Effective Legal Solutions, dated 9 June 2020. The author indicated that he acted for the defendant's partner, Chantelle Rapley, in relation to the Family Court proceedings. Mr Kernick stated that the former matrimonial home was the only asset, and its value was $750,000, with a mortgage of $590,000, following the defendant taking out a loan for $200,000 to cover his legal fees in relation to the criminal trial. That left $160,000 in equity. Mr Kernick, on behalf of Ms Rapley, asked the defendant to transfer the property into her name solely.
15. Annexure C to Exhibit 7 is a reply from Mr Eaton to Mr Kernick pointing out that his client had provided an undertaking to the Court not to encumber his property and therefore could not agree to the property settlement proposal. He also stated, "in the event your client commences proceedings in the Family Court, we will be obliged to notify the plaintiff's solicitor in the compensation claim".
16. Exhibit 8 is a notice of motion dated 25 August 2020 seeking orders for the plaintiff to file the Amended Statement of Claim in the 2018 proceedings and orders in respect of the alleged contempt of court by the defendant following breaches of his undertaking to the court and subsequent breach of court orders.
17. Exhibit 9 is a further affidavit by Ms Kay-Noble sworn 25 August 2020 in the 2018 proceedings. In paragraph 3, it is stated: The current proceedings are brought pursuant to the Compensation to Relatives Act 1897 (NSW) on behalf of Tara Susanne Duffy and Kalais Ann Butcher (DOB 12 February 2015).
18. Again, there is no suggestion, contrary to the opinion expressed by Mr Eaton, that the 2018 proceedings in any way involved a claim for damages for psychiatric injury.
19. The affidavit, Exhibit 9, was prepared in support of the notice of motion to amend the Statement of Claim and for orders concerning the alleged breaches by the defendant.
20. Exhibit 10 is a further affidavit by Ms Kay-Noble sworn 15 February 2021 and filed in the 2020 proceedings. This affidavit sets out information regarding the undertaking provided by the defendant to the Court, the alleged breaches of the undertaking, and information concerning other transactions and matters relevant to the defendant's conduct. It also sets out evidence regarding the Court orders on 17 June 2020, restricting the defendant from dealing with his property and the defendant's alleged breaches of that order.
21. Exhibit 11 is a further affidavit of Ms Kay-Noble sworn 25 February 2021 in the 2020 proceedings. This was a further affidavit in support of the notice of motion of 15 February 2021. It provides further information regarding the defendant's alleged breaches of undertakings and orders of the Court.
22. Finally, Exhibit 12 is an affidavit of the defendant sworn 25 February 2021, in which he denies breaching previous orders and explains his misunderstanding as to the meaning of the undertaking. Further, he stated that he has a good defence to the 2020 claim.

Submissions by the Parties

1. In order to make sense of the submissions it is necessary to consider them sequentially. Both parties put on written submissions in advance of the listing on 10 June 2021. At that time, oral submissions were made by both parties and leave was given upon request for the respondent to put on further written submissions. I have set out below the submissions, as made.

Applicant's Written Submissions Filed 11 May 2021 [AS-1] (MFI 1)

1. At this stage, the applicant was relying upon 3 bases to either dismiss or stay the proceedings: 1. issue estoppel; 2. Anshun estoppel; and 3. UCPR 13.14(1)(c) - the proceedings are an abuse of the process of the Court.
2. The submissions included an extract from the decision of the High Court in Anshun: 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 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.
3. It was then submitted that the 2020 proceedings and the 2018 proceedings raise issues as to liability which flow from the same facts and between the same parties. It was submitted that the only difference between the proceedings is that the compensation that is claimed flows from separate statutory provisions and/or a statutory provision and the common law. This seems uncontroversial.
4. The applicant further submitted that the respondent had access to "appropriate evidence which established that the plaintiff had a diagnosable psychiatric condition" [AS-19] at the time the 2018 proceedings were settled and later approved. Whilst this is the case, the evidence was not available when the 2018 proceedings were commenced.
5. It was then submitted at [20]: Accordingly, the proceedings in their current form are an abuse of process, they do not disclose a cause of action without such cause of action being an abuse of process and accordingly should be dismissed.
6. With the greatest respect to learned counsel, that ultimate submission appears circular. I read it to mean that the cause of action which is disclosed in the Statement of Claim for the 2020 proceedings is not sustainable by reason of estoppel and that, therefore, the statement of claim is an abuse of process.

Respondent's Written Submissions Dated 24 May 2021 [RS-1] (MFI 2)

1. The respondent's submissions addressed what she perceived to be the applicant's case on the motion. That is that either by reason of issue estoppel or Anshun estoppel the proceedings were an abuse of process. The applicant's case regarding issue estoppel was subsequently abandoned and limited to Anshun estoppel (see letter from Mr Andrews of counsel to my Associate dated 25 August 2021 [AS-3] (MFI 6)).
2. Counsel for the respondent began by pointing out what, with respect, was obvious and not disputed. That is that the 2018 proceedings were brought pursuant to the CTR Act and the 2020 proceedings were for damages for personal injury in respect of psychiatric conditions suffered by the plaintiff as a consequence of her father's death.
3. Counsel for the respondent conceded that a Court could prevent a party from bringing a claim which should have been pursued in earlier proceedings (RS-1 [13]). It was conceded that: A party will be estopped from bringing forward a matter in a new claim which was so relevant to the previous claim that it was unreasonable not to bring it up (and therefore constitutes and abuse of process).
4. It was submitted that in Anshun there were issues between the defendants that should have been litigated in the original proceedings, in particular, an indemnity based on a contract between the two defendants. It was submitted that the Court held that it was unreasonable not to have brought up the indemnity issue in the previous proceedings which were proceedings for a claim in damages for personal injury and that the new proceedings could potentially involve inconsistency with previous rulings as to the apportionment of liability.
5. Learned counsel for the respondent then submitted: The essence is not whether the claim could have been brought up in the earlier proceedings, but whether it was so relevant that not including it was unreasonable (see Champerslife v Manojlovski [2010] NSWCA 33).
6. The submissions of the respondent ended with a General Steel [1] submission. That is that summary termination of a cause of action should not occur other than in a clear case where the court is satisfied that it has the requisite material to reach a definite and certain conclusion.

Oral Submissions on 10 June 2021

1. Counsel for the applicant conceded that claims under the CTR Act and claims for damages for mental harm can be brought in separate proceedings (T6.7). He submitted, however, that they should not be brought in separate proceedings as doing so would fall foul of what the High Court stated in Anshun and also in Tomlinson v Ramsey Food Processing Pty Ltd (2015) HCA 28.
2. It was further submitted that it makes no difference if there are third parties involved. That is, there can still be an issue estoppel even though the third parties might not have been a party to the proceedings (T7.27). That is of no relevance her as even though Ms Duffy was initially the only named plaintiff when the 2018 proceedings commenced the plaintiff had been substituted as plaintiff with Ms Duffy as tutor in mid-2020.
3. It was then submitted that the fact that the 2018 proceedings were determined by a resolution between the parties by settlement is sufficient, it is not necessary for there to be a determination by a Court for the estoppel to arise (T8.25).
4. It was submitted for the applicant that other than the source of damages in the 2018 and 2020 proceedings, they are identical actions (T8.30). I respectfully do not agree; they are separate causes of action. The CTR Act claim is a derivative action, having its origins in the fact that the deceased would have been entitled to claim damages against the defendant had he survived. In a nervous claim, the plaintiff acts on a duty of care owed to her.
5. Counsel for the respondent submitted that the two claims should be brought in separate proceedings as "it would be almost impossible to adjudicate aspects of mental health as distinct from dependency in the one proceeding" (T9.6). I do not agree with that submission as a statement of general principle, however, it is not determinative of this application.
6. It was submitted for the respondent that s 5 of the CTR Act prohibits the bringing of a claim for nervous shock or mental harm. I, respectfully, disagree. Section 5 does no more than require a single action to be brought for damages based on dependency under the CTR Act. The submission continued that s 5 would prohibit a claim for damages for mental harm being brought in the same action as a claim for dependency. I do not accept that submission but, again, it is not determinative.
7. Mr Quickenden also took exception to the applicant's submission that an estoppel can arise in respect of proceedings which resolve by way of settlement (T12.30).
8. This question then became the subject of argument between counsel, with Mr Andrews referring the Court to a number of authorities not previously notified. In the result, it was necessary for the hearing of the motion to be adjourned to permit the respondent to file additional submissions.

Plaintiff's Submissions Dated 7 July 2021 [RS-2] (MFI 3)

1. It was submitted on behalf of the respondent that it would be incongruous to find a claim on behalf of a 6 year-old alleging psychiatric injury as a consequence of her father's death as an abuse of process and, further, that the oppression for the plaintiff outweighs any alleged oppression for the perpetrator of the injury. Whilst those considerations may broadly be marginally relevant to whether the Court exercises its discretion to dismiss the proceedings as an abuse of process, they have no bearing upon whether an Anshun estoppel arises. I place no weight on any incongruity, should one exist. Plainly, however, the fact that Kalais is a young child with psychiatric conditions is relevant when considering her conduct and conduct on her behalf in prosecuting the mental health claim.
2. Counsel for the respondent conceded that a judgment entered by consent orders can give rise to an issue estoppel, but not an Anshun estoppel.
3. Turning to the question of Anshun estoppel, counsel for the respondent submitted: There can be no Anshun estoppel unless it appears 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 rely on it (emphasis added by members of the High Court in Timbercorp Finance v Collins [2016] HCA 44 at [56]).
4. Further, it was submitted: In Anshun it was acknowledged there may be a variety of circumstances which may justify a party refraining, reasonably, from litigating an issue in the earlier proceedings (Timbercorp v Collins at [59]).
5. Further, it was submitted that one of the principles giving rise to the Anshun estoppel was the possibility of contradictory judicial findings on, in that case, the question of apportionment. It is submitted, and I accept, that risk does not exist in the current proceedings as there were no specific findings on liability or damages in the 2018 proceedings. Had liability been determined as between the plaintiff and the defendant in the 2018 proceedings, then that determination would give rise to an issue estoppel or res judicata in respect of the 2020 proceedings.
6. It was submitted for the respondent that there were no involved or complex issues in the 2018 proceedings or 2020 proceedings that "necessitated the psychiatric claim being part of the Compensation to Relatives Act claim".
7. Plainly, so far as damage is concerned, that is true. There is no potential for overlap in the assessment of damages for dependency and damages for personal injury in the form of mental harm. The only overlap between the two sets of proceedings is the question of liability, which was not judicially determined in the 2018 proceedings. There is no risk of contradictory judicial findings.
8. Mr Quickenden sought to further distinguish Tomlinson on the basis that a reason for including all claims in the original proceeding is to avoid the risk of double recovery for the same loss. It was submitted, and I accept, that such a risk does not exist in the present case as the categories of claim do not permit of overlap.
9. On the question of abuse of process, counsel for the respondent referred to a decision of the High Court in UBS AG v Tyne [2018] HCA 45 at [7]: "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. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.
10. It was then submitted, and I accept, that an abuse of process can occur even where an estoppel does not and "both concepts (abuse of process and Anshun estoppel) are informed by considerations of finality and fairness (Tomlinson v Ramsey at [24])".
11. I do not intend to have regard to the respondent's submissions concerning whether the proceedings are frivolous or vexatious, as that submission is no longer advanced by the applicant.
12. Presumably addressing the question of the circumstances in which the proceedings were commenced in 2018 and 2020, counsel for the respondent made submissions regarding the timing of commencement for both sets of proceedings.
13. At the time of commencement of the 2018 proceedings on 20 April 2018, the criminal proceedings against the defendant had not been determined. The plaintiff agreed to the criminal proceedings being determined in advance of the claim under the CTR Act being heard. The criminal proceedings were determined on 30 January 2020 and the CTR Act proceedings were listed for hearing on 24 February 2020, for the sittings commencing 31 August 2020.
14. It was submitted for the respondent that there is no evidence that the plaintiff's tutor had any evidence of the plaintiff's psychiatric injury before the CTR Act proceedings were listed for hearing on February 2020. Further, it is submitted that "the defendant has not shown when the plaintiff or her lawyers were in a position to commence the psychiatric injury claim before it was commenced on 21 December 2020". It was submitted that the only evidence of psychiatric injury is that of Dr Annabel Smith, consultant paediatrician, in a report dated 16 June 2020. This led the respondent to a submission that the applicant had not established that the respondent was able to commence proceedings for the psychiatric injury until at least after 16 June 2020, bearing in mind the legal representative's obligation to certify prospects of success.
15. Commencing at paragraph 46 of RS-2, counsel for the respondent identified what he considers to be all of the facts and circumstances relevant to the exercise of the Court's discretion.
16. At paragraph 50 of RS-2, the respondent sought leave to rely upon additional evidence, some of which was objected to as noted above.
17. The respondent's submissions then go into considerable detail concerning the defendant's financial position, a freezing order, an undertaking by the defendant to the court in response to the freezing order application, the defendant's alleged breach of that undertaking, the freezing orders made on 17 June 2020, the fact that the defendant and his partner of 17 years had separated leading to his partner making an application for property settlement under the Family Law Act 1975, causing the plaintiff in these proceedings to intervene in the Federal Circuit Court proceedings on 25 August 2020, and the settlement of the 2018 proceedings. Of interest but of little or no relevance is the fact that 15 days after the approval of the settlement in the CTR Act proceedings the Federal Circuit Court proceedings were discontinued.
18. It is suggested that the existence of the Federal Circuit Court proceedings and the risk that posed to the defendant's financial position was a relevant factor in the settlement of the 2018 proceedings. Whilst I accept that these factors would have caused concern to the plaintiff they are matters not relevant to whether an estoppel exists or whether the 2020 proceedings are an abuse of process.
19. It was then submitted that: On 21 December 2020 the current proceedings were commenced with the knowledge that the Bateau Bay property had probably increased in value, without the complications of the Federal Circuit Court proceedings or the potential criminal appeal. This was a different set of circumstances than the facts and circumstances that faced the plaintiff in the Compensation to Relatives Act proceedings in September 2020.
20. The reference to the potential criminal appeal arose from communications between the parties, in which it was suggested by the defendant that he may appeal the outcome in the criminal matter.
21. It was further submitted for the respondent that the mental harm claim could not have been brought at the time the CTR Act claim was commenced in April 2018, or any time prior to 16 June 2020 when a psychiatric condition was diagnosed.
22. Further, it was submitted that the psychiatric injury claim was not so relevant to the CTR Act claim that it would need to be included in the same proceeding. It was said that it was not unreasonable that the plaintiff's psychiatric injury claim was not included in the 2018 proceedings and that the Anshun principle has not been established so as to justify the finding of estoppel.
23. I do not consider the delay caused by the criminal proceedings, the alleged breaches be the defendant of undertakings or orders (although serious), or the matrimonial matter relevant to this application, and would reject any evidence going to those matters.

Applicant's Submissions in Reply [AS-2] (MFI 4)

1. It was submitted on behalf of the applicant that a diagnosis pursuant to DSM-V was made by Dr Smith in her report of 28 May 2020. That is, prior to 10 September 2020 when the settlement of the CTR Act proceedings was approved.
2. Reference was then made to the decision in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No. 2] (2021) WASCA 105, in which the Western Australian Court of Appeal considered questions of abuse of process and the important significance of considerations of finality and fairness. At [165], the Court stated: One situation in which the potential for an abuse of process has been recognised is where the processes of a court are invoked to litigate claims that could and should have been litigated in earlier proceedings. In Tomlinson, French CJ, Bell, Gageler and Keane JJ said: Abuse of process … is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
3. The Western Australian Court of Appeal acknowledged that it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding "or which ought reasonably to have been made or raised" can constitute an abuse of process, even where an estoppel does not arise.
4. The court in Mineralogy then referred to the decision of Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 to support a proposition that the resolution of a controversy may be a permanent stay of the proceedings, notwithstanding the plaintiff is not at fault and the merits of the plaintiff's claim have not been decided.

Emails of 23 and 24 August 2021 (MFI 5)

1. On 23 August 2021, through my Associate, I confirmed the evidence upon which the parties relied and the submissions which had been provided. I also asked the applicant to identify, with specificity, the basis upon which the application was proceeding and what remedy was sought.
2. On 24 August 2021, Mr Quickenden replied to my Associate indicating that he wished to rely upon the Plaintiff's Book. Mr Quickenden indicated his understanding that the application was proceeding as an abuse of process and that an Anshun estoppel existed.

Letter from Mr Andrews Dated 25 August 2021 [AS-3] (MFI 6)

1. In this letter Mr Andrews, counsel for the applicant, confirmed that the applicant relied upon UCPR 13.4 and, specifically, 13.4(1)(c). Mr Andrews further indicated that the applicant relied upon Anshun estoppel. As to remedy, counsel for the applicant confirmed that he was seeking dismissal of the proceedings under UCPR 13.4(1)(c), or a permanent stay of the proceedings on the ground that an Anshun estoppel exists and the proceedings are an abuse of process.

Respondent's Submissions Dated 30 August 2021 [RS-4] (MFI 7)

1. Counsel for the respondent made submissions in support of the tender of documents objected to by the applicant but pressed by the respondent. The respondent did not press the tender of the affidavit of Sophie Kay-Noble sworn 5 June 2020.
2. In short, it was submitted for the respondent that the additional evidence was required to provide all of the "facts and circumstances" leading to the commencement of the 2018 and 2020 proceedings "including taking account of public and private interests". Reference was again made to the High Court in UBS AG v Tyne, cited with approval by Lord Bingham in Johnson v Gore Wood & Co. [2002] 2 AC 1 at [31] on this issue. The Court is required to take into account all of the facts and circumstances to determine if a party is abusing the processes of the Court.
3. It was again stated on behalf of the respondent, and again I accept the proposition, that Anshun estoppel is a significantly more confined principle than abuse of process. To state differently, an abuse of process may arise in circumstances where issue estoppel may not. Commencing at paragraph 14 of RS-4, counsel for the respondent set out the relevant facts and circumstances, including aspects of the defendant's conduct to which, it is submitted, the Court should have regard in exercising its discretion. In brief form, they are: 1. the nature of the proceedings, including the fact that the tort was intentional by the defendant with a fatal outcome; 2. the defendant's alleged breach of undertakings to the Court to diminish his assets for recovery by the plaintiff; 3. the defendant's alleged breach of Court orders designed to preserve his assets until the conclusion of the plaintiff's claim; 4. the defendant's attempt to delay the CTR Act proceedings by allegedly misrepresenting that he intended to appeal his conviction and the Intensive Corrections Order imposed upon him; 5. "sham Federal Circuit Court proceedings between the defendant and his wife to minimise the Compensation to Relatives Act recovery"; 6. evidence of the plaintiff's tutor accepting the settlement of the 2018 proceedings knowing of the problems with recovery and the potential for a psychiatric injury claim; 7. the absence of evidence that the defendant was ever advised of any potential claim other than one under the CTR Act; and 8. the fact that the evidence in support of a nervous shock claim was only available after the CTR Act claim had been listed for hearing on 24 February 2020, for the sittings in August.
4. In my opinion only (a), (f), (g) and (h) are relevant facts and/or circumstances.
5. The reason for the relevance of the evidence at paragraphs (a) and (h) are obvious. In respect of (f), what is relevant is that the tutor agreed to the settlement of the 2018 proceedings believing that such a settlement would not extinguish the rights for a claim in damages for mental harm. In relation to (g), the absence of evidence from the defendant extends to whether he settled the 2018 proceedings believing that such a settlement would bring to an end all rights by the plaintiff against him in respect of the deceased.
6. Counsel for the respondent then sets out references to the evidence which, in his submission, makes good the relevant facts and circumstances above.
7. Ultimately, it was submitted on behalf of the respondent that the 2020 proceedings do not violate public interest or the administration of justice, and that the plaintiff would sustain oppression or prejudice if her claim was dismissed or stayed.

Applicant's Submissions Dated 2 September 2021 [AS-3] (MFI 8)

1. In this document, counsel for the applicant made submissions as to why some of the documents sought to be relied upon by the respondent are objected to. Principally, the objection is taken on the grounds of relevance. The applicant referred again to the decision in Anshun and submitted that the test does not come down to a question of negligence, inadvertence or accident. That submission was made against the respondent's submission that the Court should have regard to all the facts and circumstances relating to both parties.

Rulings on Evidence the subject of Objection

1. Adopting the same order as was referred to by counsel for the respondent in RS-4, I make the following rulings in relation to the evidence in dispute: 1. regarding the affidavit of Peter Gerard Moore (provisionally marked Exhibit 6): I reject the contents of paragraphs 7-11 of that affidavit on the grounds of relevance. The balance will be allowed and is marked Exhibit 6; 2. regarding the affidavit George Joseph Habkouk sworn 16 June 2020 (provisionally marked Exhibit 7): I reject paragraphs 2-13 and 20-31 on the grounds of relevance. The balance will be allowed and is marked Exhibit 7; 3. regarding the notice of motion dated 25 August 2020: I reject that document on the grounds of relevance. It was provisionally marked Exhibit 8, which marking will not be allocated to any other evidence; 4. regarding the affidavit of Sophie Kay-Noble sworn 25 August 2020: I reject paragraphs 7-32 of the affidavit. The remainder (paragraphs 1-6) will retain the marking of Exhibit 9; 5. for the affidavit of Sophie Kay-Noble sworn 15 February 2021: I reject paragraphs 5 and 8-33 of that affidavit. The balance of the affidavit will retain the marking of Exhibit 10; 6. affidavit of Sophie Kay-Noble sworn 25 February 2021: I reject this affidavit in its entirety. It was provisionally marked Exhibit 11, which marking will not be allocated to any other document or evidence; and 7. affidavit of George Habkouk sworn 25 February 2021: I reject this affidavit in its entirety. It was provisionally marked Exhibit 12, which marking will not be allocated to any other evidence or affidavit.
2. To be clear there are no Exhibits 8, 11 or 12.

Consideration

1. It is necessary to have an understanding of the facts in Anshun in order to determine its application in the present matter. Anshun arose from an action brought by a worker, Mr Soterales, who, whilst working at a port, was struck by materials being managed by a crane. The crane was owned by Port of Melbourne Authority ("the Authority") and leased to Anshun. He sued both for damages for personal injury.
2. The Authority and Anshun cross-claimed against each other, claiming contribution, notwithstanding the fact that, prior to the accident occurring, a contractual indemnity had been given by Anshun to the Authority. If the indemnity was made out then the Authority could call upon it in respect of any damages assessed for Mr Soterales against the Authority.
3. Notwithstanding, the worker's proceedings were determined with an order that Anshun should recover contribution from the Authority to the extent of 90% of damages, and the Authority should recover from Anshun contribution to the extent of 10% of damages.
4. Subsequently, the Authority commenced the contentious action against Anshun claiming an amount representing what it had paid to Mr Soterales and its legal costs and disbursements. This claim was based on the indemnity in the agreement. It was common ground that if the Authority is entitled to recover at all, it is entitled to judgment in the amount claimed.
5. The primary judge held it was not a case of res judicata, and that the Authority's claim had not ceased by reason of the judgment in the worker's action. He also found it was not a case of issue estoppel, but did accept that the principle of Henderson v Henderson (1843) Eng R 917 applied and granted a perpetual stay on the grounds that the claim "was a matter which should have been raised in earlier litigation".
6. The Full Court on appeal agreed that, although it was not a case of issue estoppel, it was a case in which the Henderson principle applied. It concluded that once it was determined that the matter of the indemnity agreement properly belonged to the first action and might have been brought forward in that litigation by the exercise of reasonable diligence, the primary judge: "had a discretion only in the sense that, although negligence, inadvertence or even accident would not suffice to excuse, he was required to consider whether special circumstances existed in the sense that justice required the non-application of the general rule".
7. The High Court considered that there was no reason for thinking that the indemnity issue could not have been determined in the worker's action. It pointed out that had the indemnity been raised and favourably determined in the worker's action, the question of apportionment would have disappeared. The Court stated at [15]: … by making a claim for contribution the Authority asserted a right which was inconsistent with the right which it asserts in the present action. In the Soterales action it might have asserted a right to indemnity and in the alternative a right to contribution. Instead, for reasons which have not been explained, the Authority confined itself to the claim for contribution.
8. Importantly, at [16]: The judgment which the Authority seeks to obtain in the present action is one which would contradict the judgment which has been entered in the Soterales action. … It is this inconsistency between the judgment obtained in the first action and the judgment sought to be obtained now that is of importance.
9. The present case is clearly distinguishable from Anshun. The plaintiff is seeking the same relief. That is, damages following the death of her father. Whilst they are different causes of action, they are not inconsistent in the way that the Authority's position was in Anshun. There is no risk that permitting the present action to proceed will give rise to an inconsistent result.
10. Unlike Anshun, the plaintiff in the present action has a reason for commencing the second action. That is, at the time of the commencement of the first action in April 2018, she was not in a position to formulate or assess a claim for damages for mental harm.
11. On the evidence before me, the earliest occasion upon which the plaintiff may have been aware that she had suffered psychiatric injury was when Dr Annabel Smith wrote to Dr Romina on 28 May 2020. I note that a copy of that report was copied to the plaintiff's tutor. On the second page of the report, Dr Smith stated: Kalais meets the DSM-5 diagnostic criteria for Avoidant/Restrictive Food Intake Disorder, attributable to the trauma of her father's death.
12. Dr Smith saw the plaintiff a few weeks later on 16 June and on that occasion issued a medical certificate confirming the following diagnoses:

• Avoidance/Restrictive Food Intake Disorder;
• Anxiety and Controlling Behaviours;
• Iron Deficiency; and
• Trauma.

1. Further, Dr Bell stated: Given the timing of Kalais' symptoms and the lack of any other developmental or neurological abnormalities to explain her symptoms, I believe the traumatic loss of her father was the trigger for Kalais' eating disorder, and intensive specialist therapy (potentially very long term) will be required to overcome these issues.
2. I note that certificate was also copied to the tutor.
3. On the evidence before me, the earliest date upon which the plaintiff's solicitor could have been satisfied as to the prospects of success of a claim for damages for mental harm was upon receipt by the tutor of that medical evidence. There is no evidence that any diagnosis of a psychiatric disorder was made at or before commencement of the 2018 proceedings, nor, indeed, prior to 28 May 2020.
4. This is a fundamental point of distinction to the circumstances in Anshun where the contractual indemnity was signed some time before the events giving rise to the worker's claim.
5. I acknowledge the decision of the NSW Court of Appeal in the matter of Champerslife Pty Ltd v Manojlovski & Anor [2010] NSWCA 33, where the Court held that it was a fundamental error in the operation of the principle of Anshun estoppel to hold that a matter that could have been raised in the first proceeding should have been raised so as to bar later proceedings based on that matter. Rather, it must be so relevant in the first proceedings that it was unreasonable not to raise it.
6. The plaintiff's current action for damages in respect of mental harm was of no relevance to the first proceedings. The 2018 proceedings were a derivative action for damages, calculated pursuant to the CTR Act. Any attempt to tender any evidence in relation to the plaintiff's psychiatric condition would have been refused on the grounds of relevance. In my opinion, it was entirely reasonable for the plaintiff not to raise the claim for damages for mental harm in the CTR Act claim, especially in circumstances where her right to make such a claim had not materialised in the sense that there is no evidence that she was aware she had suffered psychiatric injury anytime earlier than 2020.
7. I also have had regard to the decision of the High Court in the matter of Timbercorp Finance v Collins, supra, in which the Court stated at [55]: The appellant's submission, that an Anshun estoppel is made out by reference to similarities between the matters raised in the two proceedings, regardless of whether the matters sought to be raised in the present proceedings could practicably have been raised in the group proceeding, is contrary to authority on two levels.
8. And at [56]: An Anshun estoppel is not based upon degrees of similarity, which may be a matter of impression. It was made clear in Anshun that there could be no estoppel "unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it" (emphasis added). It was further explained [36]: "Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's 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."

Orders

1. I make the following orders: 1. the defendant's amended notice of motion filed 10 June 2021 (and any earlier iterations) thereof is (are) dismissed; 2. the defendant is to pay the plaintiff's costs of and incidental to the notice of motion; 3. the parties are granted liberty to apply within 14 days to vary the costs order; 4. I list the matter for directions before the presiding Judge of the next sittings of the Court commencing 15 November 2021.

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I certify that the previous [152] paragraphs are the reasons for the Judgment of his Honour Judge D Wilson SC. J Bailey Associate

Endnote

1. General Steel Industries Inc v Commissioner for Railways (NSW) [1964] 112 CLR 125 per Barwick CJ at [9]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2021