Gallo v Dawson

It is not in dispute that the various proceedings to which I will refer and which Mr Marks has initiated against the respondent, are founded on, or else relate to, this claim. I would note, though, that the sums claimed in these proceedings vary (largely for reasons relating to the jurisdictional limits of the particular courts in which the various proceedings were initiated). In June 1988 Mr Marks made what appears to have been his initial insurance claim against the respondent in the Small Claims Court of the Australian Capital Territory ("the ACT"). Those proceedings were discontinued after an appeal to the Supreme Court. In December 1990 new proceedings were begun in the Brisbane Magistrates Court in respect of the insurance claim. When this matter came on for hearing on 4 June 1992 with counsel appearing for each party, the Magistrate made the following order: "By consent action is dismissed and adjourned to the Registry." To interpolate at this point, it is from the effects of this order that Mr Marks, in the end, seeks relief. The essence of his complaint is that he did not consent to his action being dismissed. Rather he was consenting to its being withdrawn. His reason for wanting it withdrawn was, on his evidence, based on his appreciation of the relative cost of prosecuting his claim in Queensland as against in the ACT. Notwithstanding that order, Mr Marks seems to have sought to have his Brisbane proceedings re-listed. The respondent refused to consent to this. He then commenced proceedings once again in the Small Claims Court of the ACT on 27 July 1992. As the report of the Special Magistrate made under the Small Claims Act 1974 (ACT), s37(1) indicated, the only issue considered was whether Mr Marks was "estopped from proceeding in the Small Claims Court by either the doctrine of res judicata or issue estoppel". The Special Magistrate concluded that the Brisbane order dismissing the action was a final order with the consequence that the plea of res judicata was "competent". Mr Marks then sought leave to appeal from that decision to the Supreme Court. Leave was granted but Chief Justice Miles then dismissed that appeal. I will return to his Honour's reasons below. Suffice it to say that the Chief Justice indicated that: "while the order made by the Magistrates Court, Brisbane remains in force, it cannot be open to the appellant to found a like cause of action in this Territory." After receiving the advice from the Federal Court registry of which he complains in the present application and to which I will later refer, Mr Marks on two occasions in 1994 took proceedings in the Magistrates Court, Brisbane. The first of these, filed on 21 January 1994, sought an order that the Magistrates Court order of 4 June 1992 be altered so that the words "proceedings withdrawn" be inserted before the words "action dismissed". The declared object of this was to secure the recasting of the order in a way he considered would render it incapable of supporting a plea of res judicata. The basis of Mr Marks' then application was that the consent agreement giving rise to the consent dismissal order gave no undertaking not to start fresh proceedings in respect of the insurance claim. In reaching his decision in this matter on 9 February 1994, the Stipendiary Magistrate indicated that his earlier decision "must reflect the intentions of the parties". Having regard to the affidavits of the two counsel who participated in the consent proceedings as also of Mr Marks, he concluded that the dismissal order reflected the basis of what was done by the parties. I emphasise this matter because the substance of the "new evidence" which Mr Marks relies upon in the present proceedings was ascertained on his own admission from the affidavit of the respondent's counsel used in the 9 February 1994 hearing. On 15 March 1994 Mr Marks again filed proceedings in the Brisbane Magistrates Court for an order "which more accurately reflects the underlying agreement giving rise to the consent dismissal" of 4 June 1992. This application was dismissed in March 1994. The application presently before this Court was filed two years later on 17 April 1996. The "Special Reasons" Advanced by the Applicant As I have indicated, this application for an extension of time is based on two grounds. The first relates to incorrect advice given by registry staff; the second is the availability of new evidence.

1. The registry advice Chief Justice Miles delivered his judgment on 20 September 1993. By virtue of the Federal Court Rules, O52 r15(1) a notice of appeal in respect of that judgment needed to be filed either on or before 11 October 1993 or within such further time as allowed by the Court or a Judge on application made on or before 11 October 1993 for that purpose. Mr Marks apparently was informed by an official at the Federal Court Registry, Canberra that he could not file an application for an extension of time to file and serve a notice of appeal until the prescribed time for filing and serving a notice (i.e. 21 days) had expired. This advice clearly was incorrect. He ascertained the true position later in the same week. By letter dated 28 October 1993 he was advised by the Acting District Registrar of the Federal Court that he should apply for an extension of time to file and serve a notice of appeal. This letter was written in response to a letter of his of 15 October which is not before me. Mr Marks did not follow the suggested course. Rather, in early 1994, he instituted the two proceedings in Brisbane to have the wording of the consent order of 4 June 1992 amended. As I have noted, these proceedings were both dismissed, the second on 29 March 1994. More than two years were to pass before the present application was made. Mr Marks submission on this matter is that where, as in his case, appeal rights are not exercised in time because of the misleading advice of court officers, the Court will exercise its discretion to put the affected party in the position he or she would have been if not so misled. It doubtless is the case that a Court would, in all probability, have viewed an application for an extension of time benignly if brought within a reasonable period after the true position had been ascertained: cf Attorney-General v Wylde (1946) 47 SR (NSW) 99; Bjelke-Peterson v Warburton [1991] 1 QdR 517. But no such application was made in late 1993. Rather, knowing of his right so to apply, Mr Marks embarked on a different course to remedy his grievance. And it proved fruitless. Not even then did he revert to the course of seeking an extension of time. Two more years were to pass. At least insofar as any prejudice resulting from the mistaken advice was concerned, such claim as he may have had on this Court to have it corrected was long since spent. To the extent that he had a "right" to have that prejudice corrected, he sat on that right. I can find no reason at all in the advice mistakenly given and its immediate consequences which would today justify granting the extension sought. I say this notwithstanding that but for that advice he may well have filed his application for an extension within time. I merely emphasise that it has been his conduct subsequent to the receipt of that advice which, in my view, disentitles him from now relying upon it for the purpose of providing special reason for granting this application.
2. The "new evidence" Notwithstanding that the order of 4 June 1992 was a consent order and was made without any hearing on the merits, the Chief Justice concluded, as he was bound to, that it could still - and in the circumstances did - attract the operation of res judicata: see Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508. He further concluded, in reliance upon observations of Asprey JA in Wallace v Lawson (1968) 88 WN (Pt 1) (NSW) 505 at 510 that where, as here, the complaint itself was dismissed as opposed to being withdrawn, "there has been an adjudication that the subject matter of the complaint has not been established". He had earlier been referred to Mr Marks' affidavit which asserted that the agreement struck was for him to withdraw his plaint and that he gave no undertaking not to bring any further action in respect of the insurance claim. The Chief Justice noted that this affidavit material was of no avail to Mr Marks in proceedings in the Supreme Court of the ACT. As Miles CJ later indicated, while the order remained in force, it could not be open to the appellant to found a like cause of action in the ACT. In his affidavit in support of the present application Mr Marks deposed that, on 4 April 1996, during the course of a hearing to review a taxing officer's decision relating to the costs of the Supreme Court appeal, he became aware of an affidavit of counsel who appeared for the respondent when the 1992 consent order was made. That affidavit was prepared for, but not used in, the appeal. As Mr Marks further deposed, that affidavit "contains the same substance as that filed in the Queensland Magistrates Court in relation to my application to vary the earlier consent order" in January 1994. It is counsel's affidavit referred to above which is said to provide the new evidence not available to Mr Marks for presentation in the Supreme Court appeal. That affidavit, so it is said, would arguably have shown that the principle of res judicata did not apply in the circumstances. The suggested reason for this is that, when regard is had to the "context" in which the order was made, the case would be revealed as one of Mr Marks "withdrawing", "discontinuing", or "walking away" from, the proceedings with the consequence that the subject matter of the proceedings was not itself the subject of a final order. It is the respondent's submission - and I agree with it - that the consent order on its face is unambiguous. This is not a case in which a doubt exists as to whether some particular finding or findings are encompassed within a decision which does not involve an identification of issues: cf Effem Foods Pty Ltd v Travel Industries of Australia Pty Ltd (1993) 115 ALR 377 at 403-404. Here, if the effect of the consent order is that there has been a binding adjudication as to the subject matter of Mr Marks' action, then there is no doubt that that encompasses what I have called the insurance claim. The sole issue raised by the consent order is whether it constitutes such a binding adjudication. As I have indicated the order is unambiguous on its face. What Mr Marks seeks to do is to rely on affidavit evidence to produce an interpretation that contradicts that unambiguous meaning. In my view, if the order does not properly reflect the compromise that it was to put into effect, the proper course to take would be to seek to have it set aside. This is in effect what Mr Marks unsuccessfully sought in the 1994 proceedings. What is not open to Mr Marks in my view is to seek to adduce evidence of the circumstances of the compromise in proceedings in the ACT for the purpose of inducing a construction of the order which its language is quite incapable of bearing and which, relevantly, has the opposite effect for res judicata purposes to that the order conveys on its face. Mr Marks in the end is seeking to achieve through the indirect vehicle of construction of the order what he could not achieve directly in Brisbane in the 1994 proceedings. I would reject the "new evidence" justification for the application on this basis alone. However, I have made reference to the affidavit of the respondent's counsel used in the 1994 proceedings and which is said by Mr Marks to be similar in substance to the affidavit discovered at the Taxation. I would have to say that, even if it were appropriate to have regard to it and to that of Mr Marks' counsel for the purpose of construing the consent order, they would not lead to any construction other than that suggested by the clear language of the order itself. I do not have to consider the effect of delay in this matter given the conclusions I already have reached. Nonetheless I would have to say that, given that the substance of the new evidence was discovered over two years ago and given that the substantial question between the parties was itself that of finality in the insurance claim - cf Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 at 520 - a delay of this duration would itself justify refusing the application. The application is then refused. I see no reason why the usual costs order should not be made. Accordingly, my order is that the application be dismissed with costs. I certify that this and the preceding 11 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate Dated: 5 September 1996 The applicant appeared in person. Counsel for the respondent : R Refshauge Solicitors for the respondent : Deacons Graham & James Date of hearing : 7 June 1996 Date of judgment : 6 September 1996