Slaveska v State of Victoria & Ors [2015] VSCA 140

LIMITATION OF ACTIONS - Date cause of action is discoverable - Where plaintiff unaware of identity of defendants - Whether reasonable to expect self-represented plaintiff to have ascertained identity of defendants by pre-action discovery process - Limitations of Actions Act 1958 ss 27D(1)(a), 27F(2).

LIMITATION OF ACTIONS - Whether to grant extension of time to bring claims - Whether prejudice occasioned to defendants - Whether delay by self-represented plaintiff fully explained - Limitations of Actions Act 1958 ss 23A, 27K, 27L.

APPEALS - Whether notice of contention ground can be pursued on appeal - Whether ground raised before primary judge - Where ground not emphasised in submissions - Where ground raises question of law inherently within jurisdiction of Court - Appropriate to consider ground.

PRACTICE AND PROCEDURE - Application by defendants for summary judgment on the basis of abuse of process of the Court - Where self-represented plaintiff acted as husband's litigation guardian in extended proceeding regarding same incidents - Whether claims would cause unjustifiable oppression to defendants - Whether claims would bring administration of justice into disrepute - Where claims raise factual issues substantially identical to issues exhaustively considered in prior proceeding - Where plaintiff intimately involved in prior proceeding - Where plaintiff contributed to length and inefficiency of prior proceeding - Where plaintiff failed to fully explain delay in bringing personal claims - Where recoverable damages limited in scope - Relevance of overarching obligations in Civil Procedure Act 2010 - Summary dismissal of claims granted.

ESTOPPEL - Application by defendants for summary judgment on the basis of Anshun estoppel - Where plaintiff not party to prior proceeding - Where plaintiff acted as husband's litigation guardian in prior proceeding - Whether risk of inconsistent judgments arises - Whether unreasonable for plaintiff not to have brought personal claims as part of prior proceeding - Where plaintiff was focused on litigation guardian role in complex proceeding - Where plaintiff self-represented - Unreasonableness not established - Time for assessment of unreasonableness - Interaction of Anshun estoppel and abuse of process principles - Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 - Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378.

COSTS - Application for leave to appeal against costs order - Where success on appeal grounds limited - No sufficient doubt about costs order - Leave refused.

WORDS AND PHRASES - 'Cause of action for damages' - 'Personal injury' - 'Damages that relate to personal injury' - 'Impairment of a person's physical or mental condition'.

Discoverability of Incident 5 causes of action 37

Consideration - do Mrs Slaveska's claims amount to an abuse of process? 50

Anshun estoppel where litigants differ between proceedings 67

Other factors and conclusion as to unreasonableness 72

1 The appellant, Snezana Angeleska ('Mrs Slaveska') is the wife of Ljupco Slaveski. On 5 September 2006, Mr Slaveski issued proceedings against the State of Victoria and 23 individual police officers arising out of 13 alleged incidents. He sought damages in respect of claims of assault and battery, false imprisonment, malicious prosecution, defamation, trespass, conversion, detinue and negligence. He claimed that he had suffered physical and/or psychiatric injury as a result of most of the incidents.

2 In essence, Mr Slaveski sued each of the respondents for causes of action arising from various police attendances, chiefly at his business premises. Mr Slaveski claimed he was assaulted and threatened by police officers, and that they trespassed upon his property. In broad terms, he was not believed and his claims largely failed.

3 Mr Slaveski's proceeding was heard by a judge sitting in the Trial Division commencing on 3 August 2009.[1] There were 115 sitting days over a period of more than a year, generating 16,166 pages of transcript. At least 17 witnesses were called by Mr Slaveski and another 40 were called by the defendants. Mrs Slaveska was the first witness called, and her evidence extended over 25 days. She also acted as Mr Slaveski's McKenzie friend.[2] Upon the mental illness of Mr Slaveski manifesting itself early in the trial, Mrs Slaveska was appointed as Mr Slaveski's litigation guardian on 14 December 2009[3] and she had the conduct of his proceeding from that date. She attended every day of the trial.

4 On 1 October 2010, the trial judge, Kyrou J, delivered judgment dismissing all of Mr Slaveski's claims, except for one concerning trespass. The judge's reasons covered 655 pages. His Honour made final substantive orders on 10 December 2010.

5 On 21 December 2010, purportedly continuing to act as Mr Slaveski's litigation guardian, Mrs Slaveska filed a notice of appeal on behalf of Mr Slaveski in relation to Kyrou J's orders.[4] The respondents subsequently sought security for the costs of the appeal from Mrs Slaveska personally. On 25 November 2011, Mrs Slaveska was ordered to pay the security sought.[5] Following Mrs Slaveska's failure to pay the security into Court in accordance with those orders, Mr Slaveski's appeal was dismissed for want of prosecution on 1 February 2013.[6] An application for special leave to appeal to the High Court was dismissed on 5 June 2013.[7]

6 Meanwhile, on 24 November 2011, Mrs Slaveska commenced her own proceeding against the State of Victoria and 23 individual police officers, of whom 18 had been defendants in her husband's proceeding.[8] She complained of 17 incidents occurring between 8 September 2000 and 1 July 2010. In respect of Incidents 1 to 10 and 12, apart from minor differences, her claims mirror those of her husband. Mrs Slaveska filed her writ without seeking or obtaining leave to do so.

7 On 4 June 2012, the respondents filed a summons seeking the summary dismissal or the striking out of many of Mrs Slaveska's claims. The respondents argued that Mrs Slaveska was prevented from bringing many of her claims because:

(a) certain claims are an abuse of process or give rise to an estoppel because they relate to issues or causes of action determined in Mr Slaveski's proceeding;

(b) certain claims do not disclose a cause of action, are scandalous, frivolous or vexatious or are otherwise an abuse of the process of the Court;

(c) the defendants have a good defence on the merits to certain claims (being those involving alleged failures to investigate); and

(d) most of the claims are statute barred as they were brought out of time.

8 On 30 October 2012, Mrs Slaveska filed a summons seeking an extension of time pursuant to section 27K of the Limitation of Actions Act 1958 ('Limitations Act') to enable her to prosecute all the claims set out in her Amended Statement of Claim.

9 Both applications were heard together over three days by an associate judge.[9] The associate judge refused Mrs Slaveska's application for an extension of time and granted summary judgment for the respondents in respect of Mrs Slaveska's claims regarding Incidents 1 to 14 on the basis that they were not brought within time. Her Honour found that no Anshun estoppel would have operated to prevent Mrs Slaveska from bringing her claims, but did not reach a conclusion as to whether bringing any of the claims would have constituted an abuse of process, as the defendants' submissions had not elaborated upon that aspect of their summons.

10 Mrs Slaveska appeals the decision of the associate judge dismissing her claims relating to Incidents 1 to 14. The respondents submit, by notice of contention, that if necessary her claims in respect of Incidents 1 to 10 and 12 ought to be dismissed on the basis of Anshun estoppel or, alternatively, abuse of process.

11 For the reasons that follow, we would reject Mrs Slaveska's appeal grounds except insofar as we find that she brought certain claims partly within time. We would dismiss as an abuse of process those surviving claims that arise out of the incidents that were the subject of Mr Slaveski's proceeding.

12 The incidents that Mrs Slaveska alleges give rise to her causes of action are as follows.[10]

13 On 8 September 2000, the second, third, fourth, fifth and sixth defendants[11] attended Mr Slaveski's business premises to investigate him as a suspect in a criminal investigation ('Incident 1'). Mrs Slaveska alleged that she was assaulted and threatened by those defendants and that they were trespassing on the premises, and claimed that she suffered a variety of physical and psychological injuries as a result of the incident.[12]

14 On or about 18 December 2003, the seventh defendant in the company of another police officer attended Mr Slaveski's business trading premises ('Incident 2'). Mrs Slaveska alleged that the officers entered forcibly, unlawfully and without authorisation or legal justification, and she alleged that just before leaving the premises, the seventh defendant made a threat to Mr Slaveski which caused her to suffer injury, damage and loss.

15 On or about 14 April 2004, the eighth and ninth defendants attended Mr Slaveski's business trading premises to demand the return of certain items which had belonged to a former employee of Mr Slaveski ('Incident 3'). Mrs Slaveska alleged that those defendants entered forcibly, unlawfully and without authorisation or legal justification, and she claimed that she experienced further dizzy spells, further anxiety and other psychological injuries as a result of the incident.

16 On 22 June 2005, Mrs Slaveska, in the company of Mr Slaveski and their three children, attended the Mill Park police station to serve a civil writ on a colleague of the tenth and eleventh defendants ('Incident 4'). Mrs Slaveska alleged that the eleventh defendant yelled at Mrs Slaveska and Mr Slaveski and used offensive language. Mrs Slaveska further alleged that the tenth defendant referred to Mr Slaveski as a criminal, which Mrs Slaveska claims was defamatory. Mrs Slaveska claimed the incident caused injury to her feelings.

17 On 13 December 2005, the seventh, eleventh, twelfth, thirteenth, fourteenth, fifteenth and sixteenth defendants, in the company of other police officers, attended Mr Slaveski's business trading premises to arrest him and execute a search warrant ('Incident 5'). Mrs Slaveska alleged that the defendants trespassed upon her person and unlawfully restrained her for an unwarranted period while they conducted the search. Mrs Slaveska further claimed that those defendants trespassed on Mr Slaveski's land by conducting the search using more police officers than was necessary and by remaining at the premises for a longer period than was necessary. Mrs Slaveska claimed the incident caused her to suffer a range of psychological injuries.

18 On or about 13 January 2006, the seventeenth defendant in the company of other police officers attended outside Mr Slaveski's business trading premises ('Incident 6'). Mrs Slaveska alleged that the seventeenth defendant did so unlawfully, without legal justification and in circumstances which constituted an assault on Mrs Slaveska as well as stalking of her family. Mrs Slaveska claimed that the seventeenth defendant made threatening gestures with his hands with the intended purpose of harassing and intimidating Mrs Slaveska and her family, and that this caused her to suffer psychological injuries.

19 On or about 12 July 2006, the eighteenth defendant in the company of other police officers attended outside Mr Slaveski's business trading premises ('Incident 7'). Mrs Slaveska alleged that the eighteenth defendant did so unlawfully, without legal justification and in circumstances which constituted an assault of Mrs Slaveska as well as stalking of her and her husband. Mrs Slaveska claimed that the eighteenth defendant made threatening gestures with his hands with the intended purpose of harassing and intimidating Mrs Slaveska and her husband, and that this caused her to suffer injury, loss and damage.

20 Mrs Slaveska alleged that on or about 20 July 2006, the eighteenth defendant followed her and Mr Slaveski into Epping Plaza with the intended purpose of harassing and intimidating her ('Incident 8'). She claimed that this constituted both assault and stalking and that it caused her to suffer injury, loss and damage.

21 Mrs Slaveska alleged that on or about 14 August 2006, the eighteenth defendant followed her and Mr Slaveski into Epping Plaza with the intended purpose of harassing and intimidating her ('Incident 9'). She claimed that this constituted both assault and stalking and that it caused her to suffer injury, loss and damage.

22 On 7 May 2007, whilst at the St Kilda Road police station complex, the ninth defendant had a telephone conversation with Mrs Slaveska and Mr Slaveski ('Incident 10'). Mrs Slaveska alleged that the ninth defendant spoke words which were harmful and offensive and which caused her to suffer injury, loss and damage.[13]

23 Allegations were also levelled against the twenty-second defendant, the Assistant Commissioner. Mrs Slaveska claimed that she and her family received prank and threatening phone calls in the period from mid-2005 to 3 August 2009, and that she and Mr Slaveski made complaints regarding those calls to the Assistant Commissioner. Mrs Slaveska alleged that in conspiracy with the first defendant, the twenty-second, twenty-third and twenty-fourth defendants failed to investigate those complaints ('Incident 11'), causing her to suffer further injury. This is the first of three undated incidents.

24 Mrs Slaveska also claimed that the first and nineteenth defendants owed a duty to take reasonable care for the safety of Mrs Slaveska and her family, and had breached that duty ('Incident 12').[14] This is the second undated incident.[15]

25 On or about 5 September 2007, the twentieth defendant allegedly stalked, followed and threatened Mrs Slaveska and Mr Slaveski while they were picking up their three children from school ('Incident 13'). Mrs Slaveska claimed that the twentieth defendant blocked her vehicle with his police vehicle, stole and destroyed Mr Slaveski's driver's licence, and refused to disclose his name and rank upon request. She claimed that this incident involved assault and battery upon her person and trespass to goods, and that she suffered injury as a result.

26 On or about 23 September 2008, the twentieth defendant allegedly threatened Mrs Slaveska and her family at the Heidelberg Magistrates' Court ('Incident 14'). Mrs Slaveska claimed that this caused her to suffer injury. Further and in the alternative to the above allegation, Mrs Slaveska claimed that the twenty-fourth defendant, in conspiracy with the first defendant, failed to investigate the threat when Mrs Slaveska and her husband made a formal complaint.

27 In addition, Mrs Slaveska alleged that the first, twenty-second, twenty-third and twenty-fourth defendants conspired against Mrs Slaveska and her family and negligently failed to investigate their complaints ('Incident 15'). This allegedly caused Mrs Slaveska to experience further fear, further dizzy spells, further anxiety, further depression, further panic attacks and further shock. This is the third undated incident.

28 Mrs Slaveska alleged that on or about 2 June 2010, the twenty-first defendant, in conspiracy with the first defendant, tried to kill Mrs Slaveska and Mr Slaveski when they were driving to the Supreme Court for Mr Slaveski's legal proceedings against the State of Victoria ('Incident 16'). Mrs Slaveska claimed that the twenty-first defendant threatened to kill Mrs Slaveska and Mr Slaveski, and that when she called 000 the first defendant failed to assist her. Mrs Slaveska claimed that the incident caused her to suffer a panic attack and fear for her life.

29 Mrs Slaveska alleged that on 1 July 2010, the first and twenty-first defendants conspired with NSW Bankstown police to arrest Mrs Slaveska and her family and to confiscate recordings Mr Slaveski had made of Incident 16 ('Incident 17'). Mrs Slaveska claimed that this incident constituted assault and battery of her person and that it caused her to suffer further psychological injury.

30 As a result of each of the above incidents, Mrs Slaveska claimed compensatory, aggravated and exemplary damages.

31 All of the defendants denied the allegations made against them.

32 The respondents' application before the associate judge asserted that all of Mrs Slaveska's claims apart from those relating to Incidents 16 and 17 were time barred under the Limitations Act, and that time should not be extended so as to enable her to pursue them.

33 The respondents sought summary judgment in respect of all claims apart from the claim relating to Incident 17. The respondents sought that the Incident 17 claim be struck out, however they did not oppose Mrs Slaveska being granted leave to re-plead that claim.

34 In respect of Incidents 1 to 10 and 12, the respondents submitted that the claims arising out of those incidents could and should have been pleaded by Mrs Slaveska in Mr Slaveski's proceeding, or alternatively Mrs Slaveska should have brought proceedings of her own to be heard at the same time, based on the estoppel principles propounded in Port of Melbourne Authority v Anshun Pty Ltd.[16] In respect of Incident 16, they submitted that while the relevant claim was not part of Mr Slaveski's proceeding, the incident was the subject of evidence given by Mrs Slaveska and Mr Slaveski in subsequent contempt proceedings[17] and there was a risk of inconsistent judgments if the claim proceeded to trial. Accordingly, the respondents submitted that Mrs Slaveska was estopped from bringing claims in respect of Incidents 1 to 10, 12 and 16.

35 The respondents also sought summary judgment in respect of the claims arising from Incidents 11, 12 and 15, which relate to alleged failures to investigate complaints made by Mrs Slaveska and her family. The respondents submitted that they have a good defence on the merits to those claims, being Kyrou J's finding in Mr Slaveski's proceeding that police officers do not owe a duty of care to a particular complainant to investigate his or her complaint.

36 The associate judge concluded that all of Mrs Slaveska's causes of action arising from Incidents 1 to 14 were brought after the expiry of the applicable limitation periods. Her Honour found that the six year limitation period applying to the Incident 1 claims expired on 7 September 2006,[18] and that the limitation periods applying to the Incidents 2 to 14 claims had also expired by the time Mrs Slaveska's writ was issued on 24 November 2011, because the relevant causes of action were discoverable more than three years before that date.[19] No extension of time was granted in respect of any of the causes of action arising from Incidents 1 to 14 and thus summary judgment was awarded to the respondents in respect of those claims.[20] Her Honour would also have granted summary judgment in respect of the Incident 12 claims on the basis that the respondents had shown a good defence on the merits.[21]

37 The associate judge considered that there was insufficient material before the Court in respect of Incident 15 to allow a conclusion that Mrs Slaveska's claims in relation to that incident were time barred,[22] however her Honour struck out the relevant paragraph of Mrs Slaveska's Amended Statement of Claim on the basis that it failed to plead any material facts, and conflated negligence and conspiracy allegations.[23]

38 Mrs Slaveska's claims in relation to Incident 16 were issued before the applicable limitation period expired. The associate judge was neither persuaded that those claims created the prospect of a judgment inconsistent with the judgment in Mr Slaveski's contempt proceedings,[24] nor satisfied that the pleading was so deficient that these claims should be struck out.[25] Accordingly, these claims survived.

39 The associate judge struck out Mrs Slaveska's claim in respect of Incident 17 on the basis that it did not disclose a cause of action and was insufficiently pleaded.[26] The associate judge granted Mrs Slaveska leave to re-plead her claims in respect of Incidents 15 and 17.[27]

40 While the associate judge was satisfied that Mrs Slaveska's claims regarding Incidents 1 to 10 and 12 arose from the same facts relied upon by Mr Slaveski during his proceeding,[28] her Honour was not satisfied that an Anshun estoppel would have prevented Mrs Slaveska from bringing those claims (had they not been time barred) given that Mrs Slaveska was not a party to Mr Slaveski's proceeding.[29] As we have noted already, the associate judge did not decide whether Mrs Slaveska's claims constituted an abuse of process, on the basis that that aspect of the defendants' summons had received scant attention in submissions.[30]

41 On 18 November 2013, the associate judge made orders, which we relevantly summarise as follows:

(1) That Mrs Slaveska's summons seeking an extension of time under s 27K of the Limitations Act be dismissed;

(2) That Mrs Slaveska's claims contained in paragraphs 27 to 90 inclusive of her Amended Statement of Claim (pertaining to Incidents 1-14) be dismissed;

(7) That Mrs Slaveska pay 50% of the defendants' costs of the defendants' summons seeking summary dismissal and of her own summons seeking an extension of time, such costs to be taxed in default of agreement.

42 In this proceeding, Mrs Slaveska appeals against orders 1 and 2 of the associate judge's orders.[31] She also seeks leave to appeal against order 7. She appeals on the following grounds:

1. The learned Associate Justice erred by failing to apply the correct limitations period to some of the relevant claims and thereby wrongly concluded they were time barred.
   1. the learned Associate Justice erred by proceeding on the basis that each of the relevant claims was a claim for damages for personal injury, and consequently by applying the limitation period for personal injury claims. Insofar as they sought relief other than damages for personal injury, claims arising from incidents 5-14 inclusive were within time as they occurred within six years of when the proceedings were commenced.
   2. by finding that the limitations period s27D applied to all of the applicant's claims, the learned Associate Justice erred. Insofar as the applicant was claiming damages other than for personal injury, she was governed by section 5(1)(a) of the Act, not section 27D, and was within time.
2. The learned Associate Justice erred by finding that all causes of action were discoverable within three years of the applicant issuing her writ and were therefore time barred.
   1. the learned Associate Justice erred by finding incident 5 discoverable within the three year period as the causes of action alleged against the 13th, 15th and 16th respondents arising from incident 5 were not discoverable until early 2010, and therefore, were not time barred.
   2. the learned Associate Justice erred when concluding what "reasonable steps" the applicant should have undertaken under s27F(1) and (2).
3. The learned Associate Justice erred by failing to properly exercise her discretion in determining whether to allow the applicant an extension of time in that she:

a. failed to take into account relevant considerations; and

b. took into [account] irrelevant considerations.

43 The respondents, by notice of contention, submit that to the extent necessary, the associate judge's decision in relation to Incidents 1 to 10 and 12 should be affirmed on the grounds that an Anshun estoppel applies, and/or that it would be an abuse of process to permit Mrs Slaveska to proceed with her claims.

44 Neither Mrs Slaveska nor the respondents seek to challenge the associate judge's decision in relation to the claims concerning Incidents 15 to 17.

45 The associate judge held that Mrs Slaveska's causes of action arising out of Incidents 1 to 14 were time barred. Ground 1 of Mrs Slaveska's notice of appeal alleges that the associate judge erred by applying the incorrect limitation period to her claims arising out of Incidents 5 to 14.[32]

46 As we observed above, the associate judge found that a six year limitation period applied to Mrs Slaveska's claims arising out of Incident 1, and that time commenced to run on the date of the incident, and so expired on 7 September 2006.[33] That finding was not subject to challenge in the present appeal.

47 On the question of the limitation period that applied to the incidents occurring after 21 May 2003, the associate judge stated:

The periods of limitation applicable to actions for damages for personal injury were ... amended in 2003 by the Wrongs and Limitations (Insurance Reform) Act 2003. By s 14 of that Act, a new part "Part IIA Personal Injury Actions" was inserted into the Limitation of Actions Act. By s 11 of the amending Act, s 5 of the Limitation of Actions Act was amended to provide that Part IIA, rather than s 5, applies to a cause of action for damages for personal injury. By s 12 of the amending Act, amendments were made to the earlier provisions that applied in respect of extension of time, to provide that Part IIA was now to apply to applications for extension of time.

Under Part IIA of the Limitation of Actions Act, there are two limitation periods that apply to a cause of action for damages for personal injury (with the exception of injuries arising from work and traffic accidents and certain other accidents that are not relevant to this proceeding). Section 27D provides as follows:

27D Limitation period for personal injury actions - general

(1) An action in respect of a cause of action to which this Part applies shall not be brought after the expiration of whichever of the following periods is the first to expire -

(a) the period of 3 years from the date on which the cause of action is discoverable by the plaintiff;

(b) the period of 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned.

(2) This section does not apply to a cause of action that is founded on a personal injury to a person who was under a disability at the date of the act or omission alleged to have resulted in the personal injury.

The Limitation of Actions Act makes special provision for persons under a disability at the time of the act or omission alleged to have caused personal injury. Section 3(2) of the Act deems a person to be "under a disability" while that person is a minor or of unsound mind. Section 3(3) provides that a person is conclusively presumed to be of "unsound mind" if a protected or represented person under the Guardianship and Administration Act 1986. The plaintiff asserted in her first affidavit that she was under a disability, but she did not develop that assertion in argument or provide any further evidence in support. I do not consider that assertion proved.[34]

Section 27F of Part IIA provides when a cause of action is "discoverable". The section provides as follows:

27F Date cause of action is discoverable

(1) For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts -

(a) the fact that the death or personal injury concerned has occurred;

(b) the fact that the death or personal injury was caused by the fault of the defendant;

(c) in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact_._

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

(4) (Not relevant).[35]

Neither party addressed me at length as to the meaning of s 27F or its application to the plaintiff's proceeding. The defendants' written submissions asserted that the three year limitation period in respect of incidents 2-15 had expired prior to issue of her writ and made detailed submissions in relation to extension of time only. The implication is that in respect of each of these incidents the defendants submit that the cause of action was "discoverable" on the date of the acts or omissions of which complaint is made, which date is as set out in the table they prepared.[36]

In respect of incidents after 21 May 2003, the three year limitation period runs from the date on which the cause of action is "discoverable", with an absolute bar after twelve years from the date of the relevant act or omission. The plaintiff has pleaded dates for incidents 2-10 inclusive, and 13-14, being dates in the period 18 December 2003 to 23 September 2008. None of those dates are more than twelve years before she filed her writ on 24 November 2011, but all are more than three years before she filed her writ.[37]

51 Her Honour then set out an analysis of when Mrs Slaveska knew or ought to have known of the matters set out in s 27F(1) in respect of each of Incidents 2 to 15, the detail of which need not be set out for present purposes.

52 In respect of the dated incidents after 21 May 2003, her Honour concluded:

all causes of action in respect of incidents 2-10, and 13-14 were discoverable by three years before the plaintiff issued her writ. The limitation period in respect of each incident had accordingly expired before issue.[38]

53 Mrs Slaveska did not plead a date for the acts or omissions the subject of Incidents 11, 12 and 15. In respect of Incident 11, her Honour found that the claim was out of time because any causes of action Mrs Slaveska had against the twenty-second, twenty-third and twenty-fourth defendants for personal injury arising from an alleged failure to investigate were discoverable by early May 2008, being more than three years prior to the issue of her writ.[39]

54 In respect of Incident 12, her Honour found that the claim was out of time because the 'time during which this cause of action was discoverable ended in November 2006'.[40]

I am unable to be confident as to when the cause of action in respect of incident 15 was discoverable, for want of necessary particularisation in the amended statement of claim, including as to the complaints made and the dates on which they were made and by which they should have been investigated. It follows that the defendants have not established that that claim is out of time, but only (subject to summary judgment on the basis of there being no duty to investigate) that it should be re-pleaded.[41]

56 Accordingly, the associate judge held that Mrs Slaveska's claims arising from Incidents 1 to 14 were time barred by the time she commenced her proceeding.

57 It is apparent from the associate judge's discussion[42] that her Honour proceeded on the basis that the limitation period that applied to the claims arising from Incidents 2 to 15 was the period provided for in Part IIA of the Limitations Act. That Part is entitled 'Personal Injury Actions' and it generally provides for a limitation period of three years from the time the cause of action was discoverable, expiring in any event no later than 12 years after the date of the act or omission alleged to have resulted in the relevant death or personal injury.

58 Section 27B(1), which governs the application of Part IIA, provides:

This Part applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the action for damages is founded in tort, in contract, under statute or otherwise.

59 Section 27B(2) sets out various actions for damages which are expressly excluded from scope of Part IIA, none of which are relevant for present purposes.

60 Mrs Slaveska submitted that Part IIA of the Act did not apply to all of her claims. She argued that to the extent that they included actions for trespass to the person, trespass to land and trespass to goods, her claims arising from Incidents 5 to 10, 12 and 13 ('the trespass claims') were not 'cause[s] of action for damages that relate to ... personal injury' as required by s 27B(1).[43] She submitted that the limitations period that applied to those claims was not the three year period applicable to personal injury claims, but rather the general six year period provided for by s 5(1)(a). It followed, in her submission, that as the incidents giving rise to the trespass claims occurred within six years of when the proceeding was commenced, those claims were not time barred.

61 Mrs Slaveska contended that in order to determine whether a claim is a 'cause of action for damages that relate to ... personal injury to a person' one must identify the underlying legal interest protected by the relevant cause of action. She submitted that her claims for false imprisonment, assault, trespass to land and trespass to goods were not actions for personal injury damages. In this regard, she relied on the decision in New South Wales v Williamson, where French CJ and Hayne J held:

False imprisonment and recovery on a claim for personal injury damages

The costs limiting provisions of the Legal Profession Act 2004 are engaged (s 338(1)) where an amount has been "recovered on a claim for personal injury damages". As already explained, "personal injury damages" was defined (s 337(1)) to have the same meaning as in Pt 2 of the Liability Act. And as has already been noted, s 11 of the Liability Act defined "personal injury damages" as "damages that relate to the death of or injury to a person" and "injury" as "personal injury", including "impairment of a person's physical or mental condition".

The respondent sued the appellant for trespass to the person (alleging several instances of battery) and false imprisonment. He alleged that the batteries he had suffered had caused him personal injury, but it was far from clear that he alleged that the wrongful deprivation of his liberty had itself impaired his physical or his mental condition.

Often but not always, a battery will cause personal injury to the victim. False imprisonment is often accompanied by an assault and battery and the accompanying battery may (but need not) cause personal injury. There may be cases where an act of false imprisonment itself causes psychiatric, even physical injury.

Even assuming, however, that the respondent did allege that the act of wrongful imprisonment (as distinct from the batteries he alleged he had suffered) had caused him some personal injury, the claim for false imprisonment was necessarily a claim for damages on account of the deprivation of liberty with any accompanying loss of dignity and harm to reputation. The deprivation of liberty (loss of dignity and harm to reputation) is not an "impairment of a person's physical or mental condition" or otherwise a form of "injury" within s 11 of the Liability Act. The claim for false imprisonment, at least to the extent to which it sought damages for deprivation of liberty, is not a "claim for personal injury damages".[44]

62 Mrs Slaveska also relied on Campbell JA's judgment in the Court of Appeal in New South Wales v Williamson, where his Honour stated:

Mr Simpkins submits that where there is a claim of false imprisonment, as part of which it is contended that the plaintiff has, in consequence of the false imprisonment, sustained some effect on his or her mental state, that claim is for personal injury damages. I do not accept that claiming that one of the consequences of a false imprisonment is the suffering of a personal injury, is sufficient to characterise the entire claim for false imprisonment as one for "personal injury damages".[45]

63 Mrs Slaveska submitted that underlying the tort of false imprisonment is protection against unjustified deprivation of liberty and loss of dignity;[46] that the underlying interest protected by the tort of trespass to land is the right of exclusive possession;[47] that the underlying interest protected by the tort of trespass to goods is the right to undisturbed actual possession of goods;[48] and that the underlying interest protected by the tort of assault is the right to be free from the apprehension of imminent harmful or offensive contact.[49]

64 In Mrs Slaveska's submission, the damages recoverable upon the violation of those underlying interests are not personal injury damages, even if each of the torts may occasion consequential personal injury (and a claim for compensatory damages).

65 Mrs Slaveska contended that if the Parliament had intended for Part IIA to apply to any claim for damages that included a component for personal injury, s 27B(1) could have adopted the language used in ss 5(1A) and 23A(1): 'where the damages claimed consist of or include damages in respect of personal injuries to any person.'[50] Those provisions have been considered by the High Court to cover intentional torts, through their 'breach of duty' limb.[51] That Parliament did not use the same phrase in s 27B suggests, in Mrs Slaveska's submission, that it intended for that section to have a different operation.

66 Mrs Slaveska contended, relying on passages from the Ipp Report,[52] that the use of the phrase 'a cause of action for damages that relate to the death of or personal injury to a person' in s 27B(1) was not intended to enable that section to cover intentional torts, but rather was aimed at capturing negligence claims whether or not framed as a negligence action. Recommendation 23 of the Ipp Report recommends that 'all claims for damages for personal injury ... resulting from negligence [be] governed by the limitation provisions recommended in this Chapter'.[53]

67 The second reading speech to the amending legislation supports the view that the legislative reforms were directed primarily at negligence claims.[54]

68 Mrs Slaveska also relied upon the allowance in s 27F for situations where an injury manifests itself at a later time in support of her submission that the real purview of Part IIA is negligence claims.

69 The respondents submitted that s 27B(1) is directed not at the underlying interests protected by the cause of action, but at the relationship between the claim for damages and the alleged personal injury. On their argument, the words 'that relate to' are broad and should be interpreted as 'that are associated with'. In support of this submission, they rely on the decision of Kaye J in Caven v Women's and Children's Health, where his Honour relevantly held:

the question for me is whether, in terms of s 27B of the Act, the damages claimed by the plaintiffs for the cost of care and upkeep of Jared are damages "that relate to the ... personal injury" of Ms Caven, namely her continued pregnancy and the childbirth. In this sense, the ordinary English meaning of "relate", is "to bring into or establish association, connection, or relation ... to have reference to". The section does not define what type of relationship must exist between the cause of action for damages and the personal injury identified. None the less, for the reasons I have set out above, it is clear that there was an intimate and essential relationship between the damages sought by the plaintiffs for the cost of care of Jared and the personal injury (pregnancy and childbirth) of Ms Caven. Ms Caven's pregnancy, and, more relevantly, her continued pregnancy and childbirth, was both a product of, and a natural and integral feature of, the marital relationship between the two plaintiffs. So too is the joint obligation of the plaintiffs to care for and maintain the child born of that pregnancy. The relationship between Ms Caven's pregnancy and the obligation of the plaintiffs to care for Jared is, on any view, direct, proximate and substantial. It would be wholly artificial to characterise such a claim for damages as one which is "unrelated" to the "personal injury" of Ms Caven constituted by her continued pregnancy and childbirth. It therefore follows that the damages claimed by the plaintiffs for the cost of care and upkeep of Jared do "relate to" the personal injury of Ms Caven for the purposes of s 27B(1) of the Act.[55]

70 The respondents contended that accepting Mrs Slaveska's construction would effectively read the word 'only' between the words 'relate' and 'to', or add actions for intentional torts such as trespass, false imprisonment and assault to the exceptions set out in s 27B(2). They contended that Williamson did not require that result. The respondents construed s 27B(1) as requiring only that the 'damages' relate to the alleged personal injury, not that the 'cause of action for damages' as a compound must relate to that injury.

71 The respondents further submitted that s 27F does not assist as it deals with knowledge of the injury rather than of the cause of action.

72 To repeat, s 27B(1) of the Limitations Act provides:

This Part applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the action for damages is founded in tort, in contract, under statute or otherwise.

73 On the face of that provision, Part IIA applies to:

(c) those damages relate to the death of or personal injury to a person;

whatever the legal foundation for the cause of action.

74 Part IIA of the Act applies to the 'cause of action for damages'.[56] However, it is only the damages that must relate to a death or personal injury. If it were otherwise, the verb 'relate' would agree with the singular cause of action ('relates') rather than the plural damages.

75 The words of the provision do not require consideration of the elements of the cause of action. On the contrary, the particular cause of action pleaded is immaterial as it is the nature of the damages claimed that determines whether Part IIA applies. If there is 'a cause of action for damages that relate to ... personal injury', Part IIA applies 'regardless of whether the action for damages is founded in tort, in contract, under statute or otherwise'.[57]

76 Mrs Slaveska pleaded a cause of action in false imprisonment. It is clear that where false imprisonment is established, damages may be claimed for deprivation of liberty and any accompanying loss of dignity or harm to reputation.[58] Such damages are not damages that relate to personal injuries, which are defined in s 3(1) of the Limitations Act to include 'any disease and any impairment of a person's physical or mental condition'. Nevertheless, in a false imprisonment action damages may also be claimed for impairment of the plaintiff's physical or mental condition consequent upon the false imprisonment.[59] In our view, damages of that kind are damages that relate to personal injury to a person. While it may be accepted that the underlying legal character of a false imprisonment action is protection against the unjustified deprivation of liberty, it remains that if a plaintiff seeks damages for personal injury consequent upon a false imprisonment, those damages 'relate to' personal injury within the meaning of s 27B(1). We do not consider that such damages could be said to be 'unrelated' to personal injury. By extension, claims for damages for personal injury consequent upon acts of assault, trespass to land or trespass to goods are also claims for damages that 'relate to' personal injury.

77 Although Recommendation 23 of the Ipp Report proposed that the shortened limitation period should apply to all claims for damages for personal injury resulting from negligence, there is nothing in the wording of s 27B(1) that calls for a distinction to be made between damages that relate to a personal injury resulting from a failure to take reasonable care and damages that relate to other personal injuries. While negligence was the focus of the Ipp Report, the report's objective 'of limiting liability and quantum of damages arising from personal injury and death'[60] need not be achieved only by reforming the law of negligence. That the legislature omitted the phrase 'resulting from negligence' from s 27B(1) suggests that it did not intend for the section to be confined in this way.

78 The decision in Williamson does not require a different result. On the one hand, the Court makes clear that a claim for false imprisonment necessarily involves a claim for damages on account of a deprivation of liberty so, 'at least to [that] extent', it is not a claim for personal injury damages.[61] Yet on the other hand, the Court also observes that personal injury may accompany that tort, including personal injury consequent upon the false imprisonment itself,[62] and it admits of the possibility that an award of damages may be made for such personal injury.[63] In that case, however, the award of damages in the District Court was a gross award and it was unclear whether any part of the award was for personal injury of that kind. The Court held that the award was 'consistent with the allowance of damages only for the deprivation of liberty' such that it was 'not possible to show that the sum ... was "recovered on a claim for personal injury damages".'[64]

79 What is clear is that the High Court in Williamson did not hold that a claim for damages for personal injury consequent upon an act of false imprisonment cannot be a 'cause of action for damages that relate to a personal injury' because of the underlying interest protected by the tort of false imprisonment. If this had been their Honours' conclusion, there would have been no need to examine how the awarded damages were computed at all. It would have been sufficient to say that because the claim was for damages for or consequent upon an act of false imprisonment, the damages claimed could not be 'personal injury damages'.

80 The decision of Smith J in Graham v Robinson[65] provides some support for the approach for which Mrs Slaveska contends. In that case Smith J concluded that a claim for damages for emotional hurt and distress brought as part of an action for defamation was a claim 'in respect of' injury to reputation, not personal injury.[66] His Honour reached this view because he considered that the physical or mental injury may need to be alleged as an element of the cause of action for the damages to be 'in respect of personal injury'.[67] However, this view was expressed in obiter and, as Smith J acknowledged, the matter was not argued before him.[68] His Honour was also addressing wording of the kind that appears in ss 5(1A) and 23A(1) rather than the formulation found in s 27B(1).[69]

81 It is not obvious to us that the terms of s 27B(1) should be construed more narrowly than the phrase with which Smith J was concerned: 'where the damages claimed consist of or include damages in respect of personal injury'. On the contrary, 'damages that relate to personal injury' would appear broader in scope than 'damages in respect of personal injury.' Even assuming that Smith J's view is to be preferred in respect of the wording his Honour was addressing, there would not appear to be any basis for requiring a personal injury for which damages are claimed to be alleged as an element of the cause of action in order for the damages to 'relate to' personal injury.

82 We observe too that s 27D(2) uses the phrase 'a cause of action that is founded on a personal injury' when providing that Part IIA does not apply to certain actions where the injured person was under a disability at the date of the act or omission alleged to have resulted in the injury. This formulation seems much narrower, and more apt if the intention is to tie the personal injury to the elements of the cause of action.

83 The respondents relied on Kaye J's decision in Caven. In that case, his Honour observed that the type of relationship that must exist between the cause of action for damages and the personal injury was not defined, yet held that there was an intimate and essential relationship between the personal injury (i.e. Ms Caven's pregnancy and childbirth) and the damages sought for the costs of the child's care.[70] That case too may be distinguished, since in Caven there was no doubt that the cause of action (negligence) was founded on a personal injury. It is nevertheless noteworthy that his Honour concluded that the claimed cost of care damages related to personal injury and that the claim was not one for pure economic loss.[71]

84 In the circumstances, we consider that it would be wholly artificial to characterise the compensatory damages Mrs Slaveska claims as 'unrelated' to personal injury, assuming her alleged injuries would constitute 'personal injury', a matter to which we will turn.

85 We therefore adopt the view that pursuant to s 27B(1), Part IIA applies to claims for damages that relate to any personal injury, consequent upon whatever wrong, and that as a general rule (subject to any other relevant provisions of the Limitations Act), the limitation period provided for in s 27D applies to such claims.

86 A further submission of Mrs Slaveska was that Part IIA did not apply to her claims because the damages she claimed in respect of most of the incidents were not for 'personal injury' since they were not for physical injuries or recognised psychiatric illnesses.[72] She relied on a number of decisions in support of the proposition that the term 'personal injury' must be considered as limited in that way.

87 First, Mrs Slaveska relied on the High Court's decision in Tame v New South Wales where it was not in dispute that 'save in exceptional circumstances, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness'.[73] The Court adopted that position.[74]

88 It is plain on the authorities that psychological injury not amounting to a recognised psychiatric illness will fail to meet the damage requirement of the tort of negligence. However, few of Mrs Slaveska's claims are framed as negligence claims.[75] Indeed, it is significant to her argument on the applicable limitations period that they are not.

89 To the extent that Mrs Slaveska did bring negligence claims alleging psychological injury, these would be time barred on her own argument. But even if she could pursue them, to recover damages she would have to show that her injuries amounted to recognised psychiatric illnesses. Insofar as her injuries do not amount to such illnesses she would not, in any event, have a claim. Thus, the proposition in Tame does not advance her case.

90 For the reasons set out earlier, we have rejected Mrs Slaveska's submission that Part IIA is concerned only with actions in negligence. For that reason alone, it would be inappropriate to limit the definition of 'personal injury' for the purposes of that Part by reference to what is required to establish negligence, assuming that Mrs Slaveska's reliance on Tame amounted to such a submission, although this was by no means clear.

91 The definition of 'personal injuries' in s 3(1) of the Limitations Act 'includes ... any impairment of a person's physical or mental condition'.

92 Mrs Slaveska relied on the consideration given to that definition in Cavenett v Commonwealth[76] and to similar definitions in Graham v Robinson[77] and New South Wales v Ibbett.[78]

93 In Cavenett, this Court held that where a plaintiff seeks damages for a mental injury, time does not start to run under s 5(1A) of the Limitations Act 'until the plaintiff knows that his or her mental condition is a mental illness which would be recognised by the medical profession as such'.[79] The implication, on Mrs Slaveska's argument, is that since a plaintiff must know she has suffered the 'personal injuries' she alleges before time can start to run under s 5(1A), mental conditions cannot be 'personal injuries' under the Limitations Act unless they are recognised illnesses. This does not follow. It is important to appreciate that Cavenett was a negligence case; to succeed in his action the plaintiff was required to establish that his mental illness was a recognised psychiatric illness.[80] The Court was not required to consider the position for a cause of action that lacked such a requirement. Moreover, what was in issue was the plaintiff's knowledge of the personal injuries in respect of which he was claiming damages. As Nettle JA stated:

As Byrne J pointed out ... in Falcon v McCann, time cannot begin to run under s 5(1A) until a plaintiff knows that he or she suffers from the disease or disorder which is the subject of the claim. Axiomatically, one cannot know that one has a disease or disorder until one knows at least the nature of one's affliction.[81]

In finding that time only began to run when the plaintiff knew he had a recognised psychiatric illness, the Court required only that the plaintiff have knowledge of his injury in the sense in which it would form the basis of his (negligence) claim.[82] It did not limit the definition of 'personal injury' more broadly in the way contended by Mrs Slaveska.

94 Graham v Robinson[83] was a defamation case concerning the interpretation of 'personal injury' in the Magistrates' Courts Act 1971. The term was not defined in that Act, but Smith J applied the definition in s 37(2) of the County Court (Jurisdiction) Act 1972 (relevantly identical to that in the Limitations Act). In the absence of any express authority on the point, his Honour concluded that 'personal injury' did not extend beyond physical injury and mental illness to include emotional hurt. His Honour was 'encouraged to this view' by the fact that grief or sorrow could not form the basis of a claim in negligence.[84] Smith J's decision provides some support for Mrs Slaveska's contention, but for the reasons set out earlier, we do not consider that the elements of a claim in negligence conclude the scope of 'personal injury' in the Limitations Act. In addition, the legislation before Smith J had a different purpose to the Limitations Act. Consistently with the legislative objective in that case, his Honour's narrow interpretation ensured that cases of mental illness would proceed to higher courts more readily than cases of mere emotional hurt, but if applied in Mrs Slaveska's case, that interpretation would counter-intuitively result in emotional hurt cases having a more generous limitation period than cases of recognised psychiatric illness.

95 Finally, Mrs Slaveska relied on the following remarks Spigelman CJ made in obiter in New South Wales v Ibbett:

The concept of 'personal injury' is reasonably well-established in Australian legal practice. It has rarely, if ever, been used to refer to harm to reputation, deprivation of liberty, or to injured feelings such as outrage, humiliation, indignity and insult or to mental suffering, such as grief, anxiety and distress, not involving a recognised psychological condition. ... An award for the emotional harm involved in apprehension of personal violence would not generally be regarded as an award for 'personal injury damages'.

The issue is whether such harm should be so regarded by reason of the reference, in the inclusive definition of 'injury' in s 11 [of the Civil Liability Act 2002 (NSW)], to 'impairment of a person's ... mental condition'. I incline to the view that the emotional reaction, often called 'injured feelings', arising from the apprehension of physical violence and the accompanying sense of outrage or indignation is not an 'impairment of a mental condition'.[85]

96 Immediately after that passage, his Honour observed:

However, the state of the law on mental harm at the time the Act was passed would need to be carefully reviewed before reaching a concluded view. The submissions did not undertake that task. This issue need not be determined.

97 Section 21 of the Civil Liability Act 2002 (NSW), which was under consideration in Ibbett, applied '[i]n an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence'. All members of the Court agreed that the section did not apply on the facts, as the action did not involve a claim of negligence.[86]

98 Section 11 defined 'injury' as 'personal injury' including 'impairment of a person's physical or mental condition'. Basten JA expressed hesitation about the meaning of 'impairment' and considered that the use of the term 'personal injury' did not impose any additional restriction upon the scope of s 21:

There may be a doubt as to whether limiting the concept of 'impairment of mental condition' to an impairment involving a recognised psychiatric illness accords with the general understanding of the term 'impairment' or with its use in the statute. In ordinary usage, the term 'impairment' connotes a diminution of an antecedent state of affairs or a departure from an objective standard. In discrimination law the term is used to describe a departure from a standard; in tort law, it is used to describe departure from a state of affairs caused by the act of the tortfeasor. The ordinary meaning of the term may not reflect a distinction drawn by the law between emotional distress and a psychiatric condition. (As to the nature of the distinction see generally Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at 414 [285]-[296], per Hayne J.)[87]

...

[A]ccepting that the focus of s 21 is on damages in an action for negligence, the term 'personal injury damages', given the somewhat circular definitions in s 11, is a phrase probably intended to include any damages which may properly be awarded in proceedings in negligence. ... Thus, although I agree that it is not necessary to answer the third question posited by the Chief Justice ... that is because the question cannot readily be separated from the second, but does not, in my view, suggest any additional restriction upon the scope of s 21.[88]

99 Ipp JA, who dissented in the result on other grounds, remarked:

In my view, anxiety and distress would be an 'impairment' of a person's mental condition in accordance with the ordinary meaning of 'impairment', as the word is used in s 11.

In my opinion, irrespective of whether the ordinary meaning of the word is attributed to 'injury', or whether it is given the meaning defined in s 11, the word is wide enough to encompass anxiety and stress.[89]

100 It is clear that Spigelman CJ's remarks were expressed as a tentative view in obiter and that the point had not been the subject of full argument before the Court.[90] It is also clear that his Honour's view was not shared by Ipp JA and that, to the extent Basten JA agreed, his Honour did so with some reservation. Given the requirement in s 21 that the personal injury be caused by a negligent act or omission, the narrower interpretation of 'personal injury' favoured by Spigelman CJ would not, in any event, have restricted the operation of that section any more than the negligence requirement already did, as Basten JA observed. However, the present case is different, since s 27B(1) of the Limitations Act applies to more than negligence, as explained earlier in these reasons.

101 Moreover, with respect, Spigelman CJ's remarks about the usual meaning of 'personal injury' in legal practice reflect the significance of the tort of negligence in legal discourse: usually, 'personal injury' is discussed in a negligence context. His Honour's remarks do not detract from Ipp and Basten JJA's observations about the ordinary meaning of 'impairment', which are apposite in the present case. Mrs Slaveska's Amended Statement of Claim unambiguously asserts that her mental condition suffered as a result of many of the alleged incidents; whether she has alleged any recognised psychiatric illnesses or not, it would be wrong to conclude that she has not alleged any impairment to her mental condition, which is all that the definition of 'personal injuries' requires.

102 We observe also that at various points Mrs Slaveska's Amended Statement of Claim expressly alleges 'personal injury',[91] including a 'psychological condition',[92] and that it is far from clear that post-traumatic stress disorder is the only recognised psychiatric illness of which she complains. While we do not place any great emphasis on the precise terms of Mrs Slaveska's pleading, drafted as it was by a self-represented litigant, it may well be that Mrs Slaveska's pleading alleges 'personal injury' even on the narrower definition for which she contended.

103 In our view, Mrs Slaveska has alleged injuries in relation to each incident that amount to 'personal injury' for the purposes of s 27B(1) of the Limitations Act.

104 We are fortified in this conclusion by the decision of the New South Wales Court of Appeal in New South Wales v Radford,[93] where Sackville AJA (with whom Beazley and Macfarlan JJA agreed) held:

In the 5th ASC [Amended Statement of Claim], the respondent alleges that he suffered emotional upset, anxiety, distress and humiliation by virtue of the alleged assault (and the unlawful imprisonment). His claim, in my opinion, is for damages for impairment of his mental condition. Each of the consequences he alleges flowed from the assault can readily be described as an impairment of the respondent's mental condition. His claim is therefore for damages for personal injury.[94]

105 Counsel for Mrs Slaveska contended that Radford was overruled in Williamson, but that proposition must be rejected. Williamson clearly envisaged the possibility that damages could be awarded for personal injury consequent upon a false imprisonment, even if no such damages were awarded in that case.[95] The High Court did not consider the question of when mental harm will amount to an 'impairment' for the purposes of the 'personal injury' definition. In our view, the Radford reasoning is compatible with the result in Williamson and should be adopted.[96]

106 Mrs Slaveska's submission regarding the scope of the term 'personal injury' in s 27B(1) must be rejected.

107 Mrs Slaveska submitted that even if this Court were to hold that some of her actions included claims for damages that relate to personal injury consequent upon the torts she alleged, the associate judge should not have dismissed her claims to the extent that they did not rely on any such personal injury. She submitted that the Limitations Act does not extinguish causes of action and that the respondents could raise a limitations point as a defence. She maintained that she remained entitled to nominal, aggravated and exemplary damages in vindication of her rights. She relied on the High Court's decision in New South Wales v Ibbett[97] as an example of a case where significant damages were awarded for infringement of the right in an action for trespass.

108 In the respondents' submission, Part IIA of the Limitations Act is engaged in respect of a cause of action as soon as any damages are sought that relate to personal injury, irrespective of whether other heads of damages (such as for vindication of rights) are also claimed. The respondents contended that personal injury damages were the focus of Mrs Slaveska's claims and that the particulars of her injuries were otiose if all she sought was damages for the vindication of her rights.

109 As we have explained earlier in these reasons,[98] damages for personal injury consequent upon a tort are to be regarded as 'related to personal injury'. The question then is whether, if such damages are claimed, Part IIA of the Limitations Act bars all other relief founded upon the same cause of action, regardless of how any other heads of damages that are claimed may be characterised. This question was not raised before the associate judge in light of her Honour's conclusions.[99]

110 Counsel for Mrs Slaveska referred the Court to the decision of Schmidt J in Zhang v New South Wales, where her Honour rejected a submission that because some of the relief originally sought was time barred since it related to damages for personal injuries, the entire proceeding had to be dismissed. Her Honour considered that this would be 'an absurd outcome'.[100] The respondents sought to distinguish Zhang on the basis that the claimants in that case had already amended their pleadings so as to rely only on their 'per se' claims. We do not consider that this factual difference detracts from the principle for which the decision stands. Schmidt J stated:

[T]he plaintiffs' original claims for damages for mental distress and anxiety may be accepted as having been claims of damages for impairment of their mental condition and thus claims for damages for personal injury, as Sackville AJA discussed in Radford. What is now claimed in respect of injury to reputation, deprivation of liberty and loss of dignity, are not such claims. It should also not be overlooked that from the outset, the plaintiff (sic) claimed damages in respect of injury to reputation and financial losses, which were clearly not damages for personal injury.

...

In the result, the submission that the result of the plaintiffs having pursued some relief in the original statements of claim, which were time barred, that the proceedings must now be dismissed, may not be accepted. With the defendant's consent, the pleadings were later amended, with the result that the plaintiffs no longer pursued claims in respect of personal injury. The Court had the discretion to permit such amendment pursuant to s 64(2) [of the Civil Procedure Act 2005 (NSW)]. The power was to be exercised, having in mind the provisions of s 57, which includes management of the proceedings to ensure 'the just determination of the proceedings (s 57(1)(a)) and in ordering the amendment of a document, acting in accordance with the dictates of justice (s 58(1)). Justice clearly demands that the plaintiffs be permitted to amend their pleadings to enable them to pursue claims which were not time barred, when the proceedings were commenced.

...

In so far as any necessary leave was not earlier granted, in respect of the amendments remaining in question, it should now be given.[101]

111 In our view, similar principles warrant the rejection of the respondents' submission in this case. It amounts to a submission that merely by claiming personal injury damages (perhaps under a misapprehension as to the applicable limitation period) a plaintiff could find all her other damages claims founded upon the same cause of action time barred, even if those claims would have been within time had personal injury damages not been sought. For the reasons that follow, that is not the proper interpretation of s 27B(1) of the Limitations Act.

112 The respondents relied on the statement in Williams v Milotin that a 'cause of action' consists of 'the essential ingredients in the title to the right which it is proposed to enforce'.[102] That proposition may be accepted, but it does not compel the outcome the respondents sought. Rather, it draws attention to the fact that a plaintiff's right to recover damages is not itself an element of the cause of action but something that arises once all those elements are proven.[103] The reference in s 27B(1) to 'a cause of action for damages' is then properly understood as a reference to the broader notion of a claim for damages: the conjunction of a cause of action and the right to damages to which the plaintiff claims it gives rise.

113 Section 27B(1) is engaged where a plaintiff pleads a cause of action and claims damages that relate to personal injury. But the effect of that section is that Part IIA applies 'to [the] cause of action for damages that relate to ... personal injury'. That language does not bring within Part IIA any other claims for damages not relating to personal injuries which may be properly founded upon the same cause of action.

114 This interpretation is supported by the decision in Williamson. In finding that '[t]he claim for false imprisonment, at least to the extent to which it sought damages for deprivation of liberty, [was] not a "claim for personal injury damages"',[104] French CJ and Hayne J accepted that a damages claim founded upon a single cause of action may be comprised of component damages claims susceptible to characterisation in different ways according to each head of damages sought.

115 Applying those principles to this case, it follows that Mrs Slaveska's claims in respect of Incidents 5 to 10, 12 and 13 were brought out of time to the extent that they claim damages that relate to personal injury. Nevertheless, while personal injury damages appear to be a significant part of the relief Mrs Slaveska seeks, it cannot be said that she has not claimed any other relief. Among other matters, Mrs Slaveska has alleged the deprivation of her liberty, violation of property rights, and conduct causing her to apprehend imminent harmful contact. In relation to all her claims, she has sought '[d]amages, including compensatory, aggravated and exemplary damages'.[105] Any nominal damages to which Mrs Slaveska may be entitled ought not to be regarded as 'related to personal injury'.[106] Nor should any exemplary damages, given their punishment and deterrent function.[107] However, aggravated damages should be regarded as 'related to personal injury' to the extent that they compensate for personal injury[108] as opposed to the infringement of rights.[109]

116 Accordingly, subject to the determination of Mrs Slaveska's remaining appeal grounds and the respondents' notice of contention, we would strike out Mrs Slaveska's claims arising from Incidents 5 to 10, 12 and 13, and grant her leave to re-plead them, with one exception.

117 Since Mrs Slaveska's Incident 12 claims are claims of negligence, we consider that even on her own argument no part of them can be said to have been brought within time. Moreover, Mrs Slaveska did not challenge the associate judge's alternative finding that the defendants should have summary judgment in respect of the Incident 12 claims on the basis that they had a good defence on the merits.[110] In those circumstances, Mrs Slaveska's Incident 12 claims should stand dismissed.

118 We will now turn to consider Mrs Slaveska's other appeal grounds.

Discoverability of Incident 5 causes of action

119 Section 27D(1) of the Limitations Act provides that an action in respect of a cause of action to which Part IIA applies shall not be brought after the expiration of three years from 'the date on which the cause of action is discoverable by the plaintiff', or in any event after the expiration of 12 years from the date of the alleged tortious conduct. Mrs Slaveska submitted that the associate judge erred in finding that her causes of action against the thirteenth, fifteenth and sixteenth defendants arising from Incident 5 were discoverable over three years before she filed her writ. She maintains the argument she put to the associate judge to the effect that Incident 5 was not discoverable until 2010, when Mrs Slaveska apparently first learned the names of those officers.

120 The associate judge was prepared to assume that Mrs Slaveska did not know the names of the thirteenth, fifteenth or sixteenth defendants until early 2010, but held that she could have used a procedure of pre-action discovery and interrogation as a means of identifying those defendants within time. The associate judge held:

Section 27F(2) provides that a person ought to know of a fact at a particular date 'if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact'. I consider that 'all reasonable steps' includes the utilisation of available court processes. Such processes include pre-action discovery (by which means the identity of persons involved in an alleged wrong can be ascertained, if not otherwise known, to enable them to be sued) and the usual processes of discovery and interrogation after an action is commenced, by which the names of additional persons involved can be ascertained and the writ amended to join them. As I set out in detail below, the plaintiff knew the names of at least some of the officers involved in incident 5, being officers Sadler and Cole, prior to her husband fil[ing] his writ in September 2006. She could have issued her proceedings against those officers within time and utilised the court processes identified above to obtain the names of the other officers involved, including officers Wendt, Anderson and Knowles, and joined them, in all probability also within time. I detail these conclusions below.

...

I have considered whether the utilisation of court processes of discovery should be taken into account in consideration of whether or not the cause of action against other officers was 'discoverable' given that the plaintiff is now not legally represented. In my view, no case is shown in this respect for affording greater latitude to the plaintiff in considering what she 'ought to have known'. There is reference made by her in her letter of 18 August 2006 to possible suit by her as well as her husband. Further, at the time her husband issued his statement of claim in 2007 and indeed up at least until his further amended statement of claim dated 27 March 2008 her husband was legally represented. This was within time for the plaintiff to bring her own suit in respect of incident 5 had she wished to do so, and taken the step of seeking legal advice or consulting her husband's solicitors in relation to the joinder of other officers.[111]

121 Mrs Slaveska submitted that employing this procedure was not a reasonable step for her to take since: (1) she was not aware of the procedure; (2) there was no evidence she would have been able to obtain legal assistance from her husband's solicitors; and (3) the associate judge did not determine that if the procedure had been invoked by Mrs Slaveska, it would have been effective to identify the defendants by 24 November 2008.

122 The respondents submitted that Mrs Slaveska's cause of action was discoverable because she knew some of the officers involved, could confirm and identify those officers and others by reference to her own films of the incident and, further, she had access to legal advice concerning pre-action discovery before the issue of her proceeding (if required) and discovery and interrogatories after the issue of her proceeding. They submitted that there was ample evidence to support her Honour's finding that Mrs Slaveska could have brought within time her own claim in respect of Incident 5 against the officers she knew, and that if she had sought legal advice and used available court procedures she could have ascertained the identities of the other officers and had them joined as defendants within the applicable time limit.

123 Section 27F sets out when a cause of action is discoverable:

(1) For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts -

(a) the fact that the death or personal injury concerned has occurred;

(b) the fact that the death or personal injury was caused by the fault of the defendant;

(c) in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.

124 In our view, the associate judge did not err in finding that it was reasonable to expect Mrs Slaveska to seek legal advice in relation to her claim and to seek to make use of available court processes designed to assist with the very difficulty that her claim faced. There is no evidence that Mrs Slaveska took any steps to deal with this difficulty, yet she could have readily found out, whether from her husband's lawyers or another source, that the procedure for pre-action discovery is the subject of a discrete Court rule that is publically available. Rule 32.03 of the Supreme Court (General Civil Procedure) Rules 2005 relevantly provides:

Discovery to identify a defendant

(1) The Court may make an order under paragraph (2) where -

(a) an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this Rule called 'the person concerned'); and

(b) it appears that some person has or is likely to have knowledge of facts, or has or is likely to have or has had or is likely to have had in that person's possession any document or thing, tending to assist in such ascertainment.

(2) The Court may order that the person, and in the case of a corporation, the corporation by an appropriate officer, shall -

(a) attend before the Court to be orally examined in relation to the description of the person concerned;

(b) make discovery to the applicant of all documents which are or have been in his, her or its possession relating to the description of the person concerned.

125 We consider that the associate judge did not err in finding that Mrs Slaveska could have ascertained the identity of the relevant defendants via this process, and that it was reasonable to expect her to have done so by a date more than three years before 24 November 2011. Her Honour appears to have proceeded on the basis that the procedure would have been effective in identifying the relevant defendants, given the ample time that was available and the absence of any reason to consider that it would have failed. There was no error in adopting that approach. So far as was possible in a necessarily hypothetical scenario, her Honour had the necessary level of satisfaction for the purposes of s 27F(2).

126 It follows that we do not consider that the associate judge erred in finding that Mrs Slaveska's causes of action arising out of Incident 5 were discoverable by some date more than three years before she filed her writ. Accordingly, Mrs Slaveska's second appeal ground must be rejected.

127 Mrs Slaveska submitted that the associate judge erred in refusing to extend the limitations period to permit her to bring her claims pursuant to s 23A (in the case of her claims arising out of Incident 1) and ss 27K and 27L of the Limitations Act (in the case of her claims arising out of Incidents 2 to 15). These provisions are comparable and give the Court a discretion to extend the limitation period applying to a cause of action if the Court considers that it is just and reasonable to do so.

128 Matters which the Court must consider in determining whether to exercise its discretion are set out in s 27L:

(1) In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following -

• (a) the length of and reasons for the delay on the part of the plaintiff;
• (b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
• (c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
• (d) the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
• (e) the time within which the cause of action was discoverable;
• (f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
• (g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.

(2) To avoid doubt, the circumstances referred to in subsection (1) include the following -

• (a) whether the passage of time has prejudiced a fair trial of the claim; and
• (b) the nature and extent of the plaintiff's loss; and
• (c) the nature of the defendant's conduct.

129 The party seeking the extension bears the onus of satisfying the Court that it is just and reasonable to extend the limitation period.

130 Mrs Slaveska submitted that the associate judge's refusal to extend time was affected by three errors:

(a) First, the application of the incorrect limitations period to some of Mrs Slaveska's claims, leading to the conclusion that they were time barred.

(b) Secondly, the finding that the respondents would suffer 'very considerable' prejudice if time was extended,[112] when the respondents had not asserted any particular prejudice. Mrs Slaveska submitted that in the circumstances, prejudice was unlikely since many of the claims had been the subject of extensive evidence at Mr Slaveski's trial in 2009 and 2010.

(c) Thirdly, a failure to adequately consider Mrs Slaveska's explanation for the delay in bringing her claims. Mrs Slaveska maintained that she had been unrepresented and unaware of the limitations period, that although she had given the respondents notice she would be bringing proceedings, they never told her the limitations periods were due to expire, and that she had been unable to bring her claims because she had been properly focused on carrying out her role as her husband's litigation guardian.

131 The respondents submitted that the judge extensively discussed and considered Mrs Slaveska's various explanations.[113] They further submitted that those explanations were not the only factors that bore upon the exercise of her Honour's discretion. There was evidence that Mrs Slaveska had access to legal representation and, importantly, as the associate judge observed, Mrs Slaveska had provided no explanation for waiting from after the conclusion of her husband's proceeding on 1 October 2010 until 24 November 2011 to institute her own proceeding.[114] The respondents also submitted that it was open to her Honour to find and take into account that the respondents would be prejudiced by the delay.

132 As Mrs Slaveska is seeking to appeal against the exercise of a discretion on a matter of practice and procedure, the onus on her is a high one.[115]

133 As the respondents observe, Mrs Slaveska's contention that the associate judge erred in refusing to exercise her discretion to extend the limitations period arises only if her Honour was correct about the limitations period that applied. To the extent that Mrs Slaveska's claims were within time, the question of whether to extend the limitations period would not arise. In those circumstances, the assertion that the associate judge applied the wrong limitations period and should have had regard to the fact that the claims were within time does not assist Mrs Slaveska.

134 We do not consider that the associate judge erred in finding that the delay, of six to 13 years between the alleged incidents and the time at which a trial could have been listed, would have been likely to prejudice the respondents' ability to have a fair trial.[116] On the point of whether prejudice could be inferred in light of the overlap of evidence with Mr Slaveski's proceeding, the associate judge held:

There is no evidence before me of any particular and personal prejudice that will be occasioned to any defendant, but there is stress associated with being a party to any litigation, and here the defendants would be in the position of being required to undertake again an exercise that given the length and aggravating circumstances of the trial of Mr Slaveski's proceeding was no doubt more stressful than most civil proceedings.[117]

135 We agree with her Honour's observations[118] and, in our view, it was a matter to which her Honour was entitled to give weight. Moreover, contrary to Mrs Slaveska's submission, this was not a conclusion which was foreclosed by her Honour's conclusion that Anshun estoppel was not available. Not only did that analysis involve consideration of many other factors, but her Honour in fact acknowledged in her analysis the prejudice to the respondents that Mrs Slaveska's proceeding would occasion, though with doubt as to whether that factor was even relevant to Anshun estoppel.[119]

136 In relation to the explanation for the delay, the associate judge considered that Mrs Slaveska's involvement in Mr Slaveski's trial between August 2009 and August 2010,[120] her ignorance of the applicable limitation period[121] and her lack of legal representation were all relevant to why she had not commenced proceedings earlier, but did not provide a full explanation. Her Honour held:

In conclusion, in favour of the plaintiff I consider that, at best, ignorance of the actual limitation period may explain in part her failure to commence proceedings in time in respect of the later incidents. If she thought that the limitation period was six years, then she may have thought that she had brought proceedings in respect of incidents 5-14 in time. It is only an explanation in part, however, because other than the specific explanations she gives for delay in relation to incidents 1 and 5, which I discuss below, she gives no explanation for waiting until so late in the limitation period (assuming she believed it to be six years) to institute her proceedings. It cannot be ignorance of legal process because her extensive involvement in her husband's proceedings shows that she was clearly familiar with the procedure to be adopted in instituting proceedings and in interlocutory processes such as discovery. Nor is that involvement in her husband's proceeding, with the exception of the period August 2009-August 2010, a sufficient explanation for her delay. Thus the delay in respect of all incidents is substantial, and insufficiently explained.[122]

137 Her Honour also considered Mrs Slaveska's reliance on the respondents' failure to tell her that the limitations period for her claims were due to expire. Her Honour held that 'the answer is simply that the defendants were under no obligation to give any such notice to the plaintiff'.[123] This conclusion was clearly correct. It is not enough for Mrs Slaveska to assert that even in the absence of such an obligation, the respondents' silence in any case accounted for her belief that she could bring her own proceedings later. Mrs Slaveska had no reasonable basis for forming any such belief from the respondents' silence and her submission, if accepted, would effectively impose a duty on the respondents that they did not have.

138 We consider that the associate judge's reasons as to why she refused to extend the limitation period are comprehensive. No error in the exercise of her Honour's discretion has been established. It follows that we reject Mrs Slaveska's third ground of appeal.

139 In summary, therefore, Mrs Slaveska succeeds in part on Ground 1 of her appeal but Grounds 2 and 3 are not sustained. It becomes necessary to consider the respondents' notice of contention.

140 The respondents contended that, to the extent necessary, the associate judge's decision to summarily dismiss Mrs Slaveska's claims arising out of Incidents 1 to 10 and 12 should be affirmed on the grounds of Anshun estoppel and/or abuse of process. In light of our conclusions in relation to Mrs Slaveska's appeal grounds, out of those claims only the claims arising from Incidents 5 to 10 would remain live, and then only to the extent that they do not claim damages that relate to personal injury.

141 Although the emphasis in the submissions before the associate judge was on Anshun estoppel, it is convenient to begin with the abuse of process point because, in our view, it is a sufficient basis upon which to summarily dismiss the relevant claims.

142 A preliminary issue arose as to whether the respondents' abuse of process point had been raised before the associate judge, and whether it could be taken on appeal.

Formally, paragraph 1 of the defendants' summons filed 4 June 2002 relies on abuse of process pursuant to r 23.01 of the Rules as a basis, conjunctively expressed with estoppel, for summary dismissal of the claims arising from incidents also considered by Kyrou J. This was not how the case was argued, however. Abuse of process is referred to in the defendants' written submissions as an underlying principle, but not as a basis in itself for dismissal, and the defendants' case as elaborated in their oral submissions relied specifically on Anshun estoppel.[124]

144 The respondents submitted that the abuse of process argument should be considered by the Court, even though it was not the focus of argument below, for two reasons. First, because it was a point of law and was not affected by the evidence, and secondly, because it was in the interests of justice that the point be determined. The respondents contended that Mrs Slaveska's claims in respect of Incidents 1 to 10 and 12 were an attempt to re-litigate 'controversies that should already have been quelled' and offended the public interest in the finality of litigation. They submitted that the Court has inherent power to prevent an abuse of process and that it should exercise that power in the circumstances of this case.

145 At the hearing of the appeal, counsel for Mrs Slaveska accepted that if the respondents' abuse of process submission involved only a question of law, it could be raised. However, counsel maintained that the submission could not be considered to the extent that it sought to raise new questions of fact. In particular, counsel contended that it was not now open to the Court to infer, from the fact that Mrs Slaveska filed her writ while a security for costs dispute in Mr Slaveski's appeal was ongoing,[125] that she had commenced her proceeding for an improper purpose. Counsel submitted that the abuse of process argument should fail because Mrs Slaveska was not seeking to re-litigate claims but rather had raised her own claims for the first time in these proceedings. It was not suggested that, had the abuse of process point been argued before the associate judge, evidence could have been given which could have prevented it from succeeding.[126]

146 As a general rule, parties may not pursue arguments on appeal that were not run below, save in exceptional circumstances.[127] However, a point may be taken for the first time on appeal where the question is one of construction or law and where it is in the interests of justice for the point to be considered.[128]

147 In this case, while the abuse of process point was not the focus of the respondents' submissions before the associate judge, it was a matter clearly raised by the respondents' summons and the point was not abandoned at the hearing.[129] It is also relevant that if the respondents' abuse of process point succeeds on appeal Mrs Slaveska would be in no worse a position than that in which she would have been had the point succeeded before the associate judge.[130]

148 We accept that aside from the timing of the commencement of Mrs Slaveska's proceeding, there is no basis on the evidence from which the Court could infer that the proceeding was brought for an improper purpose. The Court cannot engage in speculation as to Mrs Slaveska's reasons for filing her writ at the time she did. Nevertheless, an abuse of process may also arise from the objective effect of litigation.[131] In the circumstances, it is in the interests of justice for this Court to examine for itself whether, as a question of law, Mrs Slaveska's claims in respect of Incidents 5 to 10[132] constitute an abuse of process of that kind, in light of the facts already established. It is also inherently within the power of the Court to prevent the abuse of its own processes in any event.[133]

149 With that in mind, before turning to the question of whether an abuse of process has been established in this case, it is relevant to refer by way of background to some observations that Kyrou J made about the role Mrs Slaveska played in her husband's proceeding.

Mrs Slaveska's role in Mr Slaveski's proceeding

150 On 14 December 2009, Kyrou J appointed Mrs Slaveska, with her consent, as litigation guardian for her husband in his proceeding.[134] His Honour then stated:

In the special circumstances of this case, I am prepared to appoint Mrs Slaveska as Mr Slaveski's litigation guardian. There is no evidence that she suffers any physical or mental infirmity. On the contrary, she has struck me as an intelligent individual, who is committed to her husband's case and who has intimate knowledge of that case. While there may be an issue as to whether she is capable of being sufficiently independent of Mr Slaveski in managing the proceedings on his behalf, any lack of independence is likely to be offset by the benefits arising from her familiarity with the case and the fact that Mr Slaveski trusts her.

Ms Slaveska does not appear to have any interest in the proceeding which is adverse to that of Mr Slaveski. She will, however, be required to swear an affidavit containing a declaration to that effect.[135]

151 In the final judgment given after trial, Kyrou J made the following observations about Ms Slaveska's conduct as litigation guardian:

By any measure, acting as Mr Slaveski's litigation guardian without legal representation was always going to be a difficult task for Mrs Slaveska. She had to conduct a large and complex trial over several months virtually on her own. She had to read a large number of documents; to prepare detailed questions for 17 of her own witnesses as well as for 40 defence witnesses, which included 34 experienced police officers and three experts; to learn the rules of evidence and trial procedures; and to perform her task in the face of constant outbursts from Mr Slaveski. It is likely that most lay people would have found the burden too onerous and would have given up. To her credit, Mrs Slaveska had the courage to persevere and she worked tirelessly in the pursuit of Mr Slaveski's claims. I have no doubt that no other lay advocate could have done a better job in presenting his case.

Although Ms Slaveska's energy and determination resulted in a robust - and sometimes feisty - presentation of Mr Slaveski's case, her lack of legal qualifications and experience inevitably resulted in the hearing progressing in an inefficient and unwieldy manner.

Mrs Slaveska often objected to questions simply because she did not like them or because Mr Slaveski asked her to do so. In cross-examination, she frequently asked questions which were irrelevant, repetitious or mere assertions. Some questions were aimed at embarrassing the police defendants, rather than at eliciting relevant evidence from them. Some purported questions contained not-so-subtle threats that the witness would be sued, notwithstanding my prior warnings that the making of such threats was highly improper. Mrs Slaveska put matters to witnesses without any factual foundation and irresponsibly accused all but four of the 40 witnesses she cross-examined of lying to the Court.

Mrs Slaveska sometimes became argumentative when I made rulings against her. She also made repeat applications on matters upon which I had already ruled. On some occasions, she was a mere mouthpiece for Mr Slaveski. That is not to say, however, that Mrs Slaveska failed to exercise independent judgement; not infrequently, she motioned for Mr Slaveski to be quiet or put aside handwritten notes that he had given to her without referring to their contents.

The agreed time limits for the completion of Mrs Slaveska's cross-examination of witnesses always afforded her more time than she reasonably required. Nonetheless, on several occasions, Mrs Slaveska failed to complete the cross-examination of a witness within the agreed time limit because she became obsessed with the pursuit of peripheral credit issues. When I sought to enforce the deadline, she would complain that 'it's not fair'. Mrs Slaveska appeared to be of the view that 'fairness' required that she be allowed to keep a witness in the witness box for as long as it suited her. Invariably, on these occasions, I extended the deadline to enable her to ask additional questions. I also agreed to recall some witnesses at her request.

Some hearing days were lost when Mr or Mrs Slaveski informed the Court, on the morning of the relevant day, that Mrs Slaveska was ill or that their teenaged son was ill and that she was required to stay at home to care for him. Although I explained to Mrs Slaveska that an application for an adjournment on medical grounds had to be supported by more than a one-line medical certificate, she continued to rely on such certificates to justify her absences from the Court. These absences caused inconvenience to the Court and to the defendants, their legal practitioners and their witnesses. They also added to the already considerable delays in the resolution of the proceeding.

In addition, much time was wasted because Mrs Slaveska regularly arrived at the Court well past the scheduled time of commencement for the hearing. This included days when, at her request, the hearing had been scheduled to commence earlier than usual.

Unfortunately, on many occasions, the hearing degenerated into a farce, with Mr Slaveski shouting and otherwise behaving inappropriately, Mrs Slaveska making speeches 'for the record' and witnesses looking on in disbelief. On these occasions, my priority was to restore order, usually by removing Mr Slaveski from the Court. I would then remind Mrs Slaveska about the proper conduct of the proceeding, and press on with the trial.

The requirement in r 15.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) that a litigation guardian must act by a solicitor has much to commend it. I waived that requirement in this proceeding because, had I not done so, the likely result would have been an order that the proceeding be stayed and Mr Slaveski would have been deprived of his right to have his claims tested in the Court.[136]

152 In relation to the interaction between Mrs Slaveska's roles as litigation guardian and witness, Kyrou J stated:

Mrs Slaveska was heavily involved in the preparation of the case for trial (including in the preparation of subpoenas) and in advising and assisting Mr Slaveski generally. She also continued to discuss the case with Mr Slaveski on a daily basis while she remained a witness. Indeed, while Mrs Slaveski was giving evidence in chief, she would often leave the witness box, with my permission, to assist Mr Slaveski in organising his documents. Mrs Slaveska did not seek to conceal the nature of her involvement in the preparation of the case.[137]

153 Finally, we note that Kyrou J described Mrs Slaveska as an unreliable witness and that he rejected significant portions of her evidence.[138]

Consideration - do Mrs Slaveska's claims amount to an abuse of process?

154 It is not possible to formulate any strict rules that exhaustively describe when an abuse of process will be held to arise,[139] and the categories of abuse of process are not closed.[140] Nevertheless, in an often cited passage, McHugh J in Rogers v The Queen stated:

Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall 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. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.[141]

155 The authorities make clear that abuse of process principles may be invoked to prevent the re-litigation of cases which have been disposed of by previous proceedings.[142] In this respect, there is a degree of conceptual overlap with the doctrine of Anshun estoppel.[143] It is clear, however, that the Court's power to prevent an abuse of its process can be exercised even where no estoppel arises. In Walton v Gardiner, Mason CJ, Deane and Dawson JJ stated:

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, ... proceedings before a court should be stayed as an abuse of process if, notwithstanding that 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. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as 'the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people'.[144]

Accordingly, the Court need not conclude that Mrs Slaveska's claims in respect of Incidents 5 to 10 would be barred by an Anshun estoppel in order to consider that the continuation of those claims would be an abuse of the Court's process. Plainly, however, various considerations may inform both analyses.[145]

156 The focus of an abuse of process analysis is ultimately the substance of proceedings, rather than their form.[146] As a result, in appropriate circumstances, litigation may be regarded as an attempt at re-litigation notwithstanding that it is brought by a different party to the earlier proceeding.[147]

157 In such a case there must, however, be some relevant connection between the plaintiffs or other special factor rendering the attempted re-litigation an abuse of process.[148] This need not be a subjective intention to misuse the court's procedures. In Batistatos v Roads and Traffic Authority (NSW),[149] the High Court referred with approval to remarks of Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay emphasising there was no 'requirement that the continuance of the action would involve moral delinquency on the part of the plaintiff'.[150] Rather, what was decisive was the objective effect of the continuation of the action.

158 In Kermani v Westpac Banking Corporation,[151] Robson AJA stated:

The guiding considerations [in a re-litigation type abuse of process analysis] 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 it 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 re-litigated and the impact of the re-litigation 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.[152]

159 The question, therefore, is whether it would be unjustifiably oppressive to the respondents or would otherwise bring the administration of justice into disrepute to allow Mrs Slaveska to maintain her claims in respect of Incidents 5 to 10 (subject to proper re-pleading) given her significant involvement in her husband's proceeding.

160 For the reasons that follow, we consider that in the extraordinary circumstances of this case, to the extent that some residual aspects of Mrs Slaveska's claims in relation to Incidents 5 to 10 were brought within time, to allow her to take those claims to trial now would be to allow an abuse of the Court's process.

161 First, there is substantial identity between the issues raised by Mrs Slaveska's claims in respect of Incidents 5 to 10 and those determined in Mr Slaveski's proceeding. Assuming Mrs Slaveska re-pleads her claims in respect of Incidents 5 to 10, if they are to succeed the Court in her proceeding would at a minimum need to reach a number of factual conclusions with respect to each incident that are inconsistent with findings made in her husband's proceeding. That is so notwithstanding that Mrs Slaveska's claims involve some factual allegations that were not made in her husband's proceeding; the point remains that Mrs Slaveska's claims are closely based on and arise from the same factual substratum as the claims that her husband unsuccessfully pursued.

162 It is significant that Kyrou J did not reject most of Mr Slaveski's claims for reasons specific to Mr Slaveski (such as a failure to establish loss) but rather found that much of the tortious conduct that he had alleged had not occurred at all. His Honour expressly rejected Mr Slaveski and Mrs Slaveska's version of events in respect of Incidents 6 to 10.[153] Even in relation to Incident 5, the only incident in respect of which Mr Slaveski established some tortious conduct, Kyrou J found, among other matters:

(a) that the validity of the search warrant was not in dispute;[154]

(b) that there was no trespass to land upon the initial entry to Mr Slaveski's shop;[155]

(c) that it was reasonable for the police officers to have guarded the doors of the shop while executing the search warrant;[156]

(d) that Mrs Slaveska was not restrained during the search;[157] and

(e) that the allegations of theft of documents, evidence and equipment were without foundation and that Mr Slaveski and Mrs Slaveska's evidence on this point was concocted.[158]

Mrs Slaveska now seeks to contradict those factual findings, among others.

163 Dozens of witnesses were called during Mr Slaveski's proceeding. The judgment contains an exhaustive analysis of the facts and the law in respect of every claim Mr Slaveski brought. Kyrou J gave Mr Slaveski and Mrs Slaveska ample opportunity to litigate Mr Slaveski's claims, including regarding Incidents 5 to 10, and they took that opportunity to its full extent.

(a) is of the same type and involves the same general causes of action as Mr Slaveski's case, albeit with slight variations in respect of some incidents;

(b) makes many of the same allegations that Mr Slaveski made, save as to the person said to be injured, with relevantly identical pleadings in respect of various incidents; and

(c) would, unless an issue estoppel arose, require the repetition of evidence about the claims and the re-determination of numerous questions of fact that were fundamental to Mr Slaveski's causes of action.

165 For Mrs Slaveska's Incident 6 to 10 claims to succeed, the trial judge in her proceeding would necessarily have to reach significant factual conclusions contrary to those reached by Kyrou J. The prospects of that occurring appear remarkably poor, particularly given that:

(a) Mr Slaveski and Mrs Slaveska were not considered credible witnesses in Mr Slaveski's proceeding;

(b) no fresh evidence is asserted to be relevant to Mrs Slaveska's claims regarding the relevant incidents; and

(c) issue estoppels may well prevent reconsideration of Kyrou J's factual conclusions in any event.

166 With respect to Incident 5, too, Mrs Slaveska makes a range of factual allegations inconsistent with Kyrou J's findings in Mr Slaveski's proceeding and seeks forms of relief inconsistent with those findings. Indeed, her claims regarding Incident 5 are far broader than the narrow basis upon which liability was established in her husband's case. Kyrou J's factual findings regarding Incident 5 extended over more than 130 pages, and concluded:

(a) that there was a trespass to land essentially limited to seven police officers remaining in Mr Slaveski's shop for 30 minutes longer than was reasonably necessary to execute the search warrant, certain officers remaining in particular rooms for up to a minute longer than necessary, and the recording of video footage in a manner not authorised by the search warrant;[159] and

(b) that there was a trespass to goods essentially limited to the moving of documents from one part of the shop to the other and the transcription of information from certain documents.[160]

167 Kyrou J awarded Mr Slaveski damages in the sum of $28,300 for those trespasses. As his Honour acknowledged, the trespass to land in particular was 'neither fleeting nor trivial'.[161] Nevertheless, it is far from evident that Mrs Slaveska would be entitled to damages on the same basis as her husband for those trespasses, even if she were to proceed with her Incident 5 claims without challenging Kyrou J's factual findings. That must also bear upon the overall significance of that subset of Mrs Slaveska's Incident 5 claims.

168 The next factor of relevance is oppression. The totality of the circumstances surrounding Mrs Slaveska's claims in respect of Incidents 5 to 10 provide strong support for the conclusion that to allow them to continue would be unfairly oppressive to the individual defendants whom she sues. They were first sued by Mr Slaveski in 2006. They were subject to a 115 day trial which stretched from 3 August 2009 to 18 August 2010, with judgment delivered on 1 October 2010. The allegations made against them were serious and concerned allegations regarding the performance of their professional and public responsibilities. They successfully defended the allegations, with the exception of the aspect of Incident 5 for which the State was held liable for the conduct of seven defendants and damages of $28,300 were awarded. The defendants were then subject to Mr Slaveski's appeal, which was eventually dismissed on 1 February 2013, and an unsuccessful application for special leave to appeal to the High Court.[162] Hence, the respondents have been subjected to ongoing litigation involving serious allegations about their conduct as police officers for well over eight years. That period of time, in some cases, may represent a substantial part of their service as police officers. Any further trial regarding Incidents 5 to 10 would occur nearly a decade after the relevant events.

169 The impact of long running litigation on individuals was considered in AON Risk Services Aust Ltd v Australian National University[163] by Gummow, Hayne, Crennan, Kiefel and Bell JJ in the following terms:

The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. In Bomanite Pty Ltd v Slatex Corporation Aust Pty Ltd, French J said of Bowen LJ's statements in Cropper v Smith:

... That may well have been so at one time, but it is no longer true today ... Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary.

In Ketteman Lord Griffiths recognised, as did the plurality in JL Holdings, that personal litigants are likely to feel the strain more than business corporations or commercial persons. So much may be accepted. But it should not be thought that corporations are not subject to pressures imposed by litigation. A corporation in the position of a defendant may be required to carry a contingent liability in its books of account for some years, with consequent effects upon its ability to plan financially, depending upon the magnitude of the claim. Its resources may be diverted to deal with the litigation. And, whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end. The stated object in the Court Procedures Rules, of minimising delay, may be taken to recognise the ill-effects of delay upon the parties to proceedings and that such effects will extend to other litigants who are also seeking a resolution in their proceedings.[164]

170 The way in which litigation is conducted is also relevant to the impact it has upon litigants. As Kyrou J observed in the passage set out earlier,[165] the very great length of the trial in Mr Slaveski's proceeding was due at least in part to Mrs Slaveska's conduct and her lack of legal training. His Honour found that Mr Slaveski's trial considerably exceeded the time that was reasonably required to deal with the issues in the proceeding.[166] As his Honour also made clear,[167] Mr Slaveski's proceeding was not only inefficient, but it repeatedly descended into farce, with both Mr Slaveski and Mrs Slaveska behaving improperly towards witnesses and towards the Court. His Honour made significant allowances in favour of both Mr Slaveski and Mrs Slaveska in the interests of advancing the proceeding as efficiently as possible. Nevertheless, aspects of Mr Slaveski's conduct at trial resulted in a contempt of court conviction.[168]

171 The nature of some of the allegations that Mrs Slaveska made against the individual defendants in her husband's proceeding is also of significance. Kyrou J described 'Mrs Slaveska's unfounded allegations' as follows:

Mrs Slaveska made submissions and cross-examined the police defendants and their witnesses on an array of issues which were not relevant to this proceeding. She made wide-ranging and unsubstantiated allegations, some of which were quite bizarre. A common theme running through her submissions and cross-examination was that the police defendants were corrupt and participated in various conspiracies with their lawyers, other police officers, Mr Slaveski's former lawyers, Council officers and others to destroy Mr Slaveski's businesses and reputation, to lock him up based on fabricated evidence and even to kill him.

Another common theme was that the police defendants were responsible for every misfortune that has been visited upon Mr Slaveski since 8 September 2000. Adverse events in Mr Slaveski's life, which had no apparent connection with each other, were attributed to the police defendants. It was put that the events were not random, but were orchestrated by the police defendants as part of an overall plan dating back to at least 8 September 2000 to destroy Mr Slaveski financially, mentally and physically.

All of these allegations were a figment of Mr Slaveski's vivid imagination and can be readily dismissed without any further discussion.[169]

172 Even leaving Mr Slaveski's conduct to one side, it is clear that the way in which Mrs Slaveska conducted her husband's proceeding added to the inherent strain of that proceeding on the defendants. In view of this history, it may be fairly assumed that her proceeding, too, will be considerably more burdensome on the respondents than ordinary litigation.

173 In those circumstances, we consider that to allow Mrs Slaveska to proceed with her claims in respect of Incidents 5 to 10, to the extent they were brought within time, would be unfairly oppressive to the defendants to those claims.

174 Further, we consider that to allow Mrs Slaveska now to pursue her claims in respect of Incidents 5 to 10 would so undermine the principle of finality in litigation that it would bring the administration of justice into disrepute. While we do not reach this conclusion lightly, we consider that it is justified in the extraordinary circumstances of this case.

175 To recapitulate, Mrs Slaveska was deeply involved in her husband's proceeding, first as his McKenzie friend and later as his litigation guardian. In his proceeding, among other tasks, she gave evidence as a witness, cross-examined other witnesses and drafted submissions. Much of what she said and did is now proposed to be repeated. Although Mrs Slaveska was not a party to her husband's proceeding, she had a detailed knowledge of his case, and was better acquainted with it than almost any other person, as Kyrou J found.[170] We consider that the extent of her involvement in her husband's proceeding is a special factor enabling her claims to be characterised as an attempt to re-litigate issues determined in that proceeding notwithstanding that she was not a party to it.

176 In addition, Mrs Slaveska did not file her writ until over a year had passed after the delivery of judgment by Kyrou J in Mr Slaveski's proceeding, a delay for which she offered no satisfactory explanation. That of itself is significant. The authorities are replete with applications of the principle that a plausible explanation ought to be given for delays in the conduct of litigation.[171]

177 In the circumstances, we consider that to the extent that Mrs Slaveska's writ makes claims in relation to Incidents 5 to 10 (and indeed Incidents 1 to 4 and 12), it amounts to an attempt to re-litigate controversies that have been resolved by this Court in a proceeding in which Mrs Slaveska was intimately involved. Whatever her intentions were in filing her writ, to allow her now to proceed with her claims regarding the incidents dealt with in Mr Slaveski's proceeding would, in the circumstances, both create the appearance of and actually involve such a degree of re-litigation that it would bring the administration of justice into disrepute. Mrs Slaveska has had more than ample opportunity to make her allegations regarding Incidents 5 to 10. That opportunity has now passed.

178 In Batistatos, Gleeson CJ, Gummow, Hayne and Crennan JJ stated:

The "right" of [a] plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.[172]

179 Under the Civil Procedure Act 2010, overarching obligations apply to all parties to civil proceedings in this Court.[173] They include obligations to minimise delay,[174] to narrow the issues in dispute,[175] and to have a proper basis for claims.[176] In addition, the Court has a duty to facilitate 'the just, efficient, timely and cost-effective resolution of the real issues in dispute'.[177] In doing so, the Court must have regard to the need to deal with a civil proceeding in a manner proportionate to the complexity or importance of the issues in dispute, and the amount in dispute.[178] The Court must also consider the efficient use of judicial and administrative resources, which are required by other litigants.[179] In Yara Australia Pty Ltd v Oswal,[180] the Court stated:

The [Civil Procedure] Act prescribes that parties to a civil proceeding are under a strict, positive duty to ensure that they comply with each of the overarching obligations and the court is obliged to enforce these duties. The statutory sanctions provide a valuable tool for improving case management, reducing waste and delay and enhancing the accessibility and proportionality of civil litigation. Judicial officers must actively hold the parties to account.[181]

180 It is entirely consistent with the Court's duty under the Civil Procedure Act that it prevent the arduous re-agitation of claims associated with incidents examined at great length in previous proceedings. This is especially so where the damages the plaintiff could recover are already limited. We would summarily dismiss Mrs Slaveska's claims arising out of Incidents 5 to 10 on the basis that they are an abuse of the Court's process.

181 Given our conclusion regarding the respondents' abuse of process submission, it is unnecessary to determine the alternative Anshun estoppel point. However, as the parties' submissions on that issue were considered at length by the associate judge and were again emphasised by counsel on this appeal, we will address the parties' Anshun estoppel submissions for completeness.[182]

182 The associate judge rejected the respondent's Anshun estoppel argument. Her Honour considered that great caution should be exercised and applied in extending Anshun estoppel to a new plaintiff, i.e. a person who was not a party to the earlier proceedings relied upon as giving rise to the Anshun estoppel, even if that person had had very great involvement in the earlier proceedings.[183] The parties had not identified any authority applying an Anshun estoppel in such circumstances.[184]

183 Her Honour was satisfied that each of Mrs Slaveska's claims arising from Incidents 1 to 10 and 12 arose from the same facts relied upon by Mr Slaveski in the equivalent claims he made in his proceeding,[185] and also that Mrs Slaveska could have commenced her proceeding before the determination of her husband's trial and sought to be joined as a plaintiff to his proceeding, but did not do so.[186]

184 In considering whether it was unreasonable for Mrs Slaveska not to have taken that course, her Honour found that there was not a risk of inconsistent judgments as such in Mrs Slaveska's claims being considered in a separate proceeding, although there was a risk that such a proceeding would result in inconsistent findings of fact and law sufficient to bring the administration of justice into disrepute.[187] Her Honour considered that this factor tended towards an Anshun estoppel but was not conclusive of its application.

185 Her Honour also took into account the considerable resources consumed by Mr Slaveski's case and the duplication and prejudice the respondents would face if they had to re-litigate the same facts and issues in the proceeding Mrs Slaveska sought to bring. In particular, her Honour took into account 'the very great length' of Mr Slaveski's trial[188] and Kyrou J's finding that Mrs Slaveska contributed to unnecessary delay.[189] In addition, her Honour found that Mrs Slaveska was not only aware of her husband's proceeding but had been 'intimately involved in his case in every way'.[190] Ultimately, however, the associate judge considered that these matters were not best reflected 'in an extended and ... novel application of the Anshun principle' but rather 'may tend towards dismissal on more general abuse of process grounds'.[191]

186 Before the associate judge, the respondents submitted that for the purposes of Anshun estoppel, the reasonableness of Mrs Slaveska's conduct should be assessed as at the time Mr Slaveski's trial commenced. Her Honour accepted that it should have been apparent to Mrs Slaveska by the commencement of her husband's trial that if she wished subsequently to bring her own claim arising from the same facts, there would be considerable duplication in the resources consumed, even if the ultimate length of her husband's trial and the extent of duplication that would occur could not have been known at that time.[192]

187 In her Honour's view, Mrs Slaveska's assistance to her husband was not a sufficient explanation for her not bringing her own proceeding prior to her husband's trial, or in a more timely fashion once that trial was concluded.[193] In addition, her Honour considered that although Mrs Slaveska had referred in an emotional moment in her husband's trial to the possibility that she would bring her own proceeding, Kyrou J was under no obligation to warn her as a potential future self-represented litigant that legal consequences, including estoppel, could arise if she sought to do so subsequently to her husband's proceeding.[194] In Mrs Slaveska's favour, however, her Honour took into account that neither Mrs Slaveska nor her husband were legally represented at her husband's trial, although Mr Slaveski had been assisted by solicitors and pro bono counsel earlier in his proceeding.[195] Her Honour ultimately concluded that as a layperson focused on advancing her husband's case (including when required to do so as his litigation guardian) it would not have been unreasonable for Mrs Slaveska to believe that she could not discharge her duties to her husband while the trial was being conducted and simultaneously pursue her own case.[196]

188 Her Honour also accepted Mrs Slaveska's submission that an amendment to her husband's writ and statement of claim to add her as a plaintiff prior to the commencement of her husband's trial would have caused prejudice both to him and to the defendants. Her Honour stated:

No doubt had an application to join her as another plaintiff been made when her husband's proceedings were otherwise ready for trial, in particular had it been made on the first day of the trial, adjournment and re-pleading, as a minimum, would have been required and so substantial prejudice occasioned.[197]

189 In the result, her Honour concluded that no Anshun estoppel should apply. Her Honour held:

To summarily dismiss certain of the plaintiff's claims on the basis of Anshun estoppel I must be persuaded that it is very clear that the estoppel would apply. The burden of that persuasion is on the defendants. On balance, I do not consider that the defendants have discharged that onus.[198]

190 On this appeal, the respondents submitted that the associate judge considered the 'unreasonableness' question too narrowly. They contended that on her Honour's findings, the appropriate conclusion was that it was unreasonable of Mrs Slaveska not to have brought her claims arising from Incidents 1 to 10 and 12 at the same time as her husband's proceeding, or to have applied to be joined as a party to his action. In particular, the respondents relied upon the associate judge's findings:

(a) that Mrs Slaveska was intimately involved in (and effectively in control of) her husband's proceeding and had her own claims in contemplation during his trial;

(b) that Mrs Slaveska's claims arose out of the same facts that Mr Slaveski relied on and that she pleaded mostly identical causes of action;

(c) that the Court could and in all probability would have permitted Mrs Slaveska's claims to be heard with her husband's had an application been made; and

(d) that a second proceeding would involve considerable duplication of resources and that this should have been apparent to Mrs Slaveska by the commencement of her husband's trial.

191 Mrs Slaveska submitted that because she was a separate legal person, she was entitled to bring her own claims even if they arose out of the same incidents that formed the basis of her husband's claims. She contended that her proceeding could not result in a declaration of rights inconsistent with findings made in her husband's proceeding because her rights were separate from and independent of his rights. She further argued that she was not relevantly 'in privity' with her husband or in control of him such that she could have caused herself to join in his proceeding. She submitted that it would be extraordinary to apply the doctrine of Anshun estoppel to her in this context.

192 Mrs Slaveska also pointed to further matters which she submitted made it reasonable for her not to have sought to have her claims heard as part of her husband's proceeding. She submitted that since she was her husband's litigation guardian, a conflict of interest may have arisen if her claims were part of the same proceeding. Further, the associate judge found that it was reasonable for her to believe that pursuing her own claims would divert her energy from her duties to her husband. Finally, she submitted it was relevant that she was unrepresented and that when she told the respondents of her intention to file her own proceedings, they never suggested that her claims should be heard and determined as part of her husband's proceeding.

193 For the reasons that follow, had it been necessary to determine the respondents' Anshun estoppel submission, we would not have been satisfied that the associate judge's conclusion was incorrect.[199]

194 The test for the application of an Anshun estoppel is one of reasonableness. A party cannot raise an issue in subsequent proceedings in circumstances where that issue was so relevant to the first proceeding that it was unreasonable not to have raised it there.[200] In Gibbs v Kinna,[201] Kenny JA held that the question '[w]hether or not it is unreasonable for a party asserting a cause of action in a later proceeding not to have done so in an earlier proceeding depends almost entirely on the particular circumstances'.[202] However, her Honour considered that 'there are two matters which must first be established before it can be said that the failure to raise a cause of action earlier might be said to have been unreasonable'.[203] First, the cause of action must be one that could have been raised in the previous proceeding. Secondly, it must appear that the same or substantially the same facts will arise for consideration in the second as in the first proceeding.[204]

195 Considering the second point first, the associate judge examined Mrs Slaveska's claims against those pleaded by her husband, and held:

In respect of each of [Incidents 1 to 10 and 12] I am satisfied that these claims now made by the plaintiff arise from the same facts relied upon by her husband in respect of equivalent claims made by him. Not only are the underlying facts the same - the causes of action relied upon are in most cases identical, save of course that in this proceeding the wrong is said to have been to the plaintiff as opposed to her husband. Further, in most cases the pleading of the various causes of action said to arise from an incident is identical in the plaintiff's case to that pleaded in her husband's case, varied only in that injury is alleged to the plaintiff, rather than to her husband. The defendants are identical in respect of each of these incidents, save that in respect of two incidents there were additional defendants to her husband's claims (incidents 1 and 5); and the plaintiff makes claims arising from incident 4 against an additional defendant (Cole as well as Nolan). Mr Slaveski's case included some additional claims relevant to him only arising from the same facts, and some additional claims arising from incidents which are not included in the plaintiff's claim. These differences aside, the defendants' contention that the claims in each case mirror each other is fairly made out.[205]

196 As to the first necessary matter, the associate judge found:

The sufficient point is that no [application to be joined as a plaintiff] was made by [Mrs Slaveska], and it could have been, and she did not commence her own proceedings until after the determination at trial of her husband's proceedings, although she could have in fact.[206]

197 Her Honour therefore concluded that the necessary preconditions for the estoppel, identified by Kenny JA in Gibbs v Kinna, were made out.[207] We agree with the associate judge's reasoning in this regard.

Anshun estoppel where litigants differ between proceedings

198 On this appeal, Mrs Slaveska maintained that she was not 'in privity' with her husband such that an Anshun estoppel based on his proceeding could apply to her.

199 A finding that an Anshun estoppel operates to prevent a person from bringing a proceeding or particular claims is a serious step: it removes a litigant's right to have the merits of a claim adjudicated. For this reason, the authorities establish that an Anshun estoppel finding should only be reached in the clearest of cases and after 'a scrupulous examination of all the circumstances'.[208]

200 In Solak, Warren CJ gave some consideration to whether special principles apply in cases where an Anshun estoppel is asserted by a party who was not a party to the earlier litigation. Her Honour concluded that it was not necessary in that case to decide whether special principles applied, but that the test in such cases is at least as strict as where the parties are the same.[209]

201 We agree with the associate judge that where an Anshun estoppel is asserted against a party who was not a party to the earlier proceeding, particularly a plaintiff, even greater caution must be exercised by the Court. This is because a new plaintiff would not ordinarily have been in control of the earlier proceeding, as the associate judge observed.[210]

202 In Re HIH Insurance Ltd (in liq); De Bortoli Wines (Superannuation) Pty Ltd v McGrath,[211] Brereton J reviewed the relevant case law[212] and concluded:

The above authorities establish that a person who was not party to earlier proceedings may nonetheless be precluded from maintaining later proceedings in respect of substantially the same subject matter, even though not in privity in the strict sense with the unsuccessful party in the earlier proceedings, if the person is sufficiently identified with a party to the earlier proceedings, and it was unreasonable to stand by and allow the earlier proceedings to be determined without intervening. In my view, in Australia these cases are best explained as a sub-species of Anshun estoppel ... Short of privity in the strict sense, there will be sufficient identification where there is control of one by the other ... In addition, the requisite relationship will be taken to exist where there has been what Lord Hobhouse called an "order for the marshalling of litigation" ... However, the existence of the requisite identification is not of itself enough; as with the more familiar form of Anshun estoppel, a non-party will be precluded from later litigating the issue only where it was unreasonable to stand by without intervening in the earlier proceedings.[213]

203 This test picks up Sir Robert Megarry VC's description of privity of interest in Gleeson v J Wippell & Co Ltd:[214]

I do not say that one must be the alter ego of the other; but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party. It is in that sense that I would regard the phrase "privity of interest".

204 Having regard to the authorities to which Brereton J referred in McGrath, we consider an Anshun estoppel can be relied upon in appropriate circumstances by a defendant seeking summary dismissal of a claim brought by a plaintiff who was not a party to relevant earlier proceedings.

205 In doing so, we observe that while the authorities hold that plaintiffs should be permitted some latitude in deciding when and how to bring their claims,[215] that latitude is not without limits. As the High Court said in Dow Jones & Co Inc v Gutnick:

Clearly, the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata, issue estoppel, and what has come to be known as Anshun estoppel, all find their roots in that policy. ... Effect can be given to that policy by the application of well-established principles preventing vexation by separate suits or, after judgment, by application of the equally well-established principles about preclusion, including principles of Anshun estoppel.[216]

206 In view of our ultimate conclusion, it is not necessary in this case to determine whether there is 'sufficient identification' between Mr Slaveski and Mrs Slaveska, in the sense articulated in the authorities, to permit an Anshun estoppel to arise in respect of Mrs Slaveska's claims notwithstanding that she was not herself a party to her husband's proceeding. It suffices to observe that the answer is far from straightforward, given Mrs Slaveska's role first as her husband's McKenzie friend, and subsequently as his litigation guardian in his proceeding. On the one hand, those roles gave Mrs Slaveska significant involvement in her husband's proceeding culminating in effective control of his case; on the other hand, they required her to act in his interests, and in that way, her ability to use what control she had was circumscribed. For present purposes, we will assume that Mrs Slaveska's direct involvement in her husband's proceeding would have been sufficient to permit an Anshun estoppel to arise if this Court was persuaded that she acted unreasonably in not seeking to raise her own claims in her husband's proceeding. It remains to consider whether the requisite unreasonableness would have been established.

207 In Gibbs v Kinna, Kenny JA held that one factor indicative of unreasonableness in failing to assert a claim in an earlier proceeding is a risk of inconsistent judgments. Her Honour stated:

if any judgment or order which might be made on the cause of action in the subsequent proceeding would conflict with a judgment or order in the earlier proceeding, then it will ordinarily be unreasonable to refrain from raising the cause of action in the first proceeding.[217]

208 Her Honour also referred to the statement of the majority of the High Court in Anshun that:

It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment ...

...

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 they appear to declare rights which are inconsistent in respect of the same transaction.[218]

209 It is relevant to observe that in this context, 'judgment' refers to the Court's operative determination of each individual cause of action, rather than to the Court's reasons for judgment regarding the totality of the plaintiff's claims.[219]

210 As to whether there was a risk of inconsistent judgments, the associate judge held:

If there is no estoppel or other basis that prevents the same facts being ventilated again in the plaintiff's proceedings, then there is the risk that after hearing the evidence relating to the plaintiff's claims (which one would expect would probably be the same as that in her husband's case, but may not be) the judge presiding over her trial would reach different factual conclusions to that reached by Kyrou J [in Mr Slaveski's proceeding]. Whether or not this would amount to an inconsistent judgment (the parties not being identical) it could bring the administration of justice into disrepute. Avoiding that consequence, and preserving the subsequent re-consideration of factual findings for appeal only, is one of the principal purposes of the various forms of procedural estoppel_._

I do not, however, consider that the defendants have shown that this is a risk of inconsistent judgments as such. The necessary fine analysis to reach this conclusion is shown in all the Court of Appeal authorities to which I have referred. I conclude that there is a risk of inconsistent findings on the facts and the law, and that this is a factor tending towards Anshun estoppel. I do not consider, however, that it is conclusive as to its application here.[220]

211 As we have observed earlier in these reasons,[221] Kyrou J's rejection of many of the factual allegations made by Mr Slaveski (through Mrs Slaveska) regarding Incidents 5 to 10 gives rise to a heightened risk of inconsistent factual findings in Mrs Slaveska's case; if a different judge was prima facie satisfied that the tortious conduct did occur, such findings would be entirely at odds with the findings of Kyrou J.

212 Nevertheless, while that analysis bears upon whether Mrs Slaveska's claims constitute an abuse of process[222] and whether issue estoppels would have arisen in Mrs Slaveska's proceeding,[223] a risk of inconsistent judgments requires something more. The respondents' written submissions asserted generally that Mrs Slaveska's claims 'mirrored' claims of her husband, but at the hearing of the appeal, counsel for the respondents provided a table identifying more specifically what were said to be the 'essential overlaps' between Mrs Slaveska's claims and the determinations made in her husband's proceeding.

213 Having reviewed the respondents' table, we are not satisfied that the respondents have shown there to be a risk of inconsistent judgments, as opposed to a risk of inconsistent factual findings, if Mrs Slaveska's claims are brought to trial. There is some force in Mrs Slaveska's submission that her causes of action would result in judgments regarding her rights and the duties owed to her by the respondents, whereas the judgments on the equivalent causes of action in her husband's proceeding concerned her husband's rights and the duties owed to him. Strictly speaking, Mrs Slaveska's claims were not tried or determined in Mr Slaveski's proceeding. Mrs Slaveska's damages would be hers alone rather than damages belonging to or shared with Mr Slaveski.

214 Although the fact that no risk of inconsistent judgments has been demonstrated bears upon whether an Anshun estoppel ultimately arises, it does not end the analysis. It remains to consider the other circumstances that the parties contended bore upon the question whether it was unreasonable of Mrs Slaveska not to bring her claims in her husband's proceeding.

Other factors and conclusion as to unreasonableness

215 The associate judge properly took account of the fact that Mrs Slaveska would likely have been allowed to have her claims determined together with her husband's claims if she had applied to be joined as a plaintiff or had commenced a separate proceeding and sought to have had it heard and determined with her husband's proceeding.[224] Mrs Slaveska's claims in respect of Incidents 1 to 10 and 12 raise many questions of fact which were the subject of evidence in her husband's proceeding. Although the addition of Mrs Slaveska's claims would likely have protracted that proceeding, logically it would have been more efficient to deal with all the claims together. It is difficult to see a trial judge declining to hear the two sets of claims together.

216 Similarly, the associate judge properly took into account the fact that it ought to have been apparent to Mrs Slaveska by the commencement of her husband's trial that to bring her own claims arising from the same facts would involve considerable duplication.[225] A separate proceeding would necessarily be attended by additional cost, delay and inconvenience for all concerned and the diversion of significant Court resources from the determination of other disputes would have been self-evident.

217 The associate judge was also correct to consider that the respondents had no duty to warn Mrs Slaveska of her interest in bringing her claims to be determined in her husband's proceeding, and that in any event they could scarcely be taken to have been given clear, unequivocal notice that Mrs Slaveska intended to bring claims in her own right.[226] As the circumstances were not such as to give rise to any reasonable expectation of a warning from the respondents, little weight can be given to the absence of such a warning in assessing the unreasonableness of the course of action Mrs Slaveska ultimately pursued.

218 Further, the potential conflict of interest asserted by Mrs Slaveska does little to advance her argument in circumstances where Mrs Slaveska's interests were closely aligned with her husband's. She could not have held a reasonable belief that a conflict of interest was likely to arise, beyond a fear that bringing her own claims might detract from her focus on her husband's case.

219 However, if it became necessary to determine the Anshun estoppel point, we would have considered that despite those considerations, on balance, the respondents have not established that at the time of the commencement of the trial in Mr Slaveski's proceeding it was unreasonable of Mrs Slaveska not to have brought her own proceeding.

220 In reaching this conclusion, we consider it particularly significant that Mrs Slaveska appears to have been substantially focussed on assisting her husband to run his case. He did not have legal representation and Mrs Slaveska assumed very substantial and onerous responsibilities in assisting him to pursue his claims. Even before the trial began, Mr Slaveski's proceeding was extraordinary in the time it occupied,[227] involving as it did a large number of incidents, defendants and witnesses and a mentally ill plaintiff.[228]

221 As the associate judge acknowledged,[229] it is also relevant, though by no means decisive,[230] that Mrs Slaveska was not legally represented at the time her husband's trial commenced and therefore did not have access to advice about whether she should seek to bring her claims as part of his proceeding. Mrs Slaveska did not put on any affidavit evidence to explain how it was that she did not seek legal assistance regarding her position while Mr Slaveski was planning to bring his proceeding or upon him issuing his writ on 5 September 2006.

222 We reject the respondents' submission that this conclusion demonstrates a 'narrow' approach to the unreasonableness question. On the contrary, it is a conclusion that takes fair account of the circumstances in which Mrs Slaveska did not raise her claims, as the authorities require.[231] Without doubt, Mrs Slaveska's claims in respect of Incidents 1 to 10 and 12 were relevant to Mr Slaveski's proceeding. But that is not to say that, in the circumstances we have described, they were so relevant that it was unreasonable at the commencement of Mr Slaveski's trial for Mrs Slaveska not to raise her claims.

223 Moreover, while it may be accepted that 'considerations of convenience and justice'[232] are at the foundation of Anshun estoppel, that does not mean that the Court may consider the unreasonableness question in an elastic way or merely on the basis of a value judgment aimed at avoiding the mischief of re-litigation. Rather, as described earlier in these reasons, the authorities require the Court to exercise great caution before finding that an Anshun estoppel operates. The respondents faced a heavy burden in contending for an Anshun estoppel. We are not satisfied that one would have operated in the relevant circumstances.

224 It follows that to the extent that Mrs Slaveska's claims in respect of Incidents 5 to 10 were brought within time, we would not summarily dismiss those claims on the basis of Anshun estoppel.

225 As we observed earlier,[233] claims may amount to an abuse of process notwithstanding that no Anshun estoppel arises. In that regard, it must be recalled that in the respondents' submission, the focus of the Anshun estoppel analysis must be what it was reasonable to expect from Mrs Slaveska at the outset of the trial in her husband's proceeding.[234] In contrast, in the exercise of the Court's inherent jurisdiction to prevent the abuse of its own processes, it is necessary to examine matters in a forward-looking way in light of all relevant circumstances,[235] including developments since the outset of Mr Slaveski's trial.

226 In reaching our conclusion that the Incidents 5 to 10 claims are an abuse of process, we have taken into account the matters which we consider would weigh against a finding that an Anshun estoppel would arise in this case, namely the responsibilities that Mrs Slaveska undertook in presenting her husband's case, her lack of legal representation, and the fact that her claims in respect of the relevant incidents were, strictly speaking, separate from those of her husband. We do not consider that in this case those factors are sufficient to outweigh the circumstances that have led us to conclude that the continuation of the Incidents 5 to 10 claims now would be unfairly oppressive to the relevant defendants and would bring the administration of justice into disrepute.

227 Mrs Slaveska seeks leave to appeal against order 7 of the associate judge, being an order that she pay 50 per cent of the costs of both summonses heard by the associate judge. No submissions were offered in support of this application.

228 We have found that Grounds 2 and 3 of the appeal should be dismissed, and that Mrs Slaveska's substantive arguments on Ground 1 should be rejected. We have also concluded that the bulk of her remnant trespass claims should be dismissed as an abuse of process. Although we have adopted different conclusions to the associate judge in some respects, Mrs Slaveska has enjoyed success only in that she may maintain her Incident 13 claims to the extent that they do not seek damages related to personal injury.[236] The minor variation we would propose to the associate judge's orders does not create sufficient doubt about the associate judge's costs order to warrant the grant of leave.[237] We therefore consider that leave to appeal on the question of costs must be refused.

229 In view of the complexity of this appeal, we have set out in Annexure A to these reasons the disposition we propose for each of Mrs Slaveska's claims. In summary:

(a) we would reject Grounds 2 and 3 of the appeal, with the effect that Mrs Slaveska's claims arising from Incidents 1 to 4, 11 and 14 stand dismissed;

(b) we would allow Ground 1 only insofar as we have concluded that Mrs Slaveska's claims arising from Incidents 5 to 10 and 13 were brought within time to the extent that they seek damages not related to personal injury, but we would otherwise reject Ground 1, with the effect that the Incident 12 claims stand dismissed; and

(c) we would dismiss the surviving claims that arise from Incidents 5 to 10 on the basis that they are an abuse of the process of the Court.

230 In the result, Mrs Slaveska's Incident 13 claims survive, but only to the extent that they do not claim damages related to personal injury. We would grant her leave to re-plead those claims to reflect this outcome. The associate judge's disposition of Mrs Slaveska's claims arising from Incidents 15 to 17 were not in issue on this appeal; they also remain on foot.

STATE OF VICTORIA and others (according to the attached Schedule)

(1) Claims out of time to the extent for damages related to personal injury: [115]

(2) Causes of action discoverable more than three years before the writ was filed: [126]

Residual claims stand dismissed as abuse of process: [180]

(1) Claims out of time to the extent for damages related to personal injury: [115]

Residual claims stand dismissed as abuse of process: [180]

(1) Claims out of time to the extent for damages related to personal injury: [115]

Residual claims stand dismissed as abuse of process: [180]

(1) Claims out of time to the extent for damages related to personal injury: [115]

Residual claims stand dismissed as abuse of process: [180]

(1) Claims out of time to the extent for damages related to personal injury: [115]

Residual claims stand dismissed as abuse of process: [180]

(1) Claims out of time to the extent for damages related to personal injury: [115]

Residual claims stand dismissed as abuse of process: [180]

(1) Claims out of time to the extent for damages related to personal injury: [115]

Struck out with leave to re-plead: [115]-[116], [230]

[1] Slaveski v Victoria [2010] VSC 441 (Kyrou J).

[2] McKenzie v McKenzie [1970] 3 All ER 1034.

[3] See Slaveski v Victoria [2009] VSC 423; (2009) 25 VR 160 (Kyrou J), which also describes Mr Slaveski's behaviour during the early part of the trial.

[4] The Notice of Appeal for Court of Appeal proceeding S APCI 2010 0169 repeatedly refers to Mrs Slaveska as Mr Slaveski's litigation guardian, including in the header.

[5] Slaveski v Victoria (Unreported, Supreme Court of Victoria, Court of Appeal, Harper JA, 25 November 2011). In addition, the Court dismissed as incompetent the appeal in relation to Kyrou J's costs orders and refused Mr Slaveski's application for an extension of time within which to apply for leave to appeal.

[6] Slaveski v Victoria (Unreported, Supreme Court of Victoria, Court of Appeal, Neave JA and Vickery AJA, 1 February 2013).

[7] Slaveski v Victoria [2013] HCASL 84.

[8] The new defendants in Mrs Slaveska's proceeding were police officers Bateman, Busic, Cornelius, Gutske and Mason. Claims were brought against them in relation to Incidents 11, 13, 14, 15, 16 and 17: see the summary of incidents set out from paragraph [12] of these reasons. The defendants in Mr Slaveski's proceeding against whom Mrs Slaveska did not make claims were police officers Leemon, Roberts, Robinson, Smith and Wheeler.

[9] Angeleska v Victoria [2013] VSC 598 ('Reasons').

[10] The paragraphs of Mrs Slaveska's Amended Statement of Claim dated 15 May 2012 pertaining to each incident are identified in Annexure A to these reasons.

[11] There were twenty-five defendants named in Mrs Slaveska's proceeding. The first twenty-four defendants are named as respondents to the appeal in the same order as before, as shown in the attached schedule. Mrs Slaveska's summons initiating this appeal omitted Victoria Police as a respondent and instead listed the State of Victoria as both the first and the twenty-fifth respondent. As there is no basis for the State to be listed twice, as a formality we will order that the twenty-fifth respondent be removed.

[12] Including extensive bruising and swelling on her legs, bruising to the hands and wrist, headaches, dizzy spells, severe shock, anxiety and depression.

[13] This included further fear, further anxiety, further depression, further panic attacks and further shock.

[14] Mrs Slaveska alleged, among other things, that the first and nineteenth defendants provided poor leadership and failed to prevent the defendants from harassing, intimidating, assaulting and detaining her.

[15] Although this incident is undated, Kyrou J found in Mr Slaveski's proceeding that the last date on which the nineteenth defendant could have investigated the threatening telephone calls was 20 November 2006: Slaveski v Victoria [2010] VSC 441, [2099(g)].

[16] [1981] HCA 45; (1981) 147 CLR 589 ('Anshun').

[17] Following the delivery of judgment in Mr Slaveski's proceeding, Kyrou J invited submissions from the parties as to whether various conduct of Mr Slaveski during the course of the trial constituted contempts of court and what should follow from that: see Slaveski v Victoria [2010] VSC 441 [67]-[75]. This culminated in an order on 25 May 2011 that the Prothonotary apply by originating motion for punishment of a contempt of court constituted by certain conduct of Mr Slaveski in court on 2 June 2010. In summary, Mr Slaveski was claimed to have been abusive of and to have alleged impropriety, partiality and corruption by the presiding judge and the court, to have disrupted the proceeding and to have threatened the presiding judge. The contempt was found proven and Mr Slaveski was sentenced to a two month term of imprisonment: R v Slaveski [2011] VSC 643 (Whelan J); R v Slaveski (Sentence) [2012] VSC 7 (Whelan J).

[19] Reasons [153], [156], [161]. See further the discussion from paragraph [45] of these reasons.

[24] Reasons [111]. See the summary of Mr Slaveski's contempt proceedings we have set out at footnote 17 of these reasons.

[31] On 7 March 2014, by consent, Mrs Slaveska was granted an extension of time to 14 March 2014 to serve her notice of appeal. She was also granted an extension of time within which to seek leave to appeal against order 7, to the same date.

[32] However, Mrs Slaveska pressed this ground only in relation to her claims arising from Incidents 5 to 10, 12 and 13: see paragraph [60] of these reasons.

[34] Reasons [120]-[122] (citations omitted).

[42] Referred to at paragraphs [47] ff above.

[43] Although Ground 1 of Mrs Slaveska's Notice of Appeal averred that insofar as they sought relief other than damages for personal injury, all of her claims arising from Incidents 5 to 14 were within time, in submissions this ground was pressed only in relation to the claims arising from Incidents 5 to 10, 12 and 13.

[44] [2012] HCA 57; (2012) 248 CLR 417, 428-9 [31]-[34] (citations omitted) ('Williamson'). Kiefel J agreed: at 431 [45].

[45] New South Wales v Williamson [2011] NSWCA 183 [66].

[46] Relying on Williamson [2012] HCA 57; (2012) 248 CLR 417, 429 [34] (French CJ and Hayne J), 421 [45] (Kiefel J); Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597, 603 (Murphy J).

[47] Relying on Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635, 645 (Mason CJ, Brennan and Toohey JJ) as approved in New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638, 646 [29]-[30] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ).

[48] Relying on Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204, 224 (Dixon J).

[49] Relying on Rixon v Star City Pty Ltd [2001] NSWCA 265; (2001) 53 NSWLR 98, 114 [57] (Sheller JA, with whom Priestley and Heydon JJA agreed). Kyrou J's judgment in Mr Slaveski's proceeding also refers to ACN 087 528 774 Pty Ltd v Chetcuti [2008] VSCA 274; (2008) 21 VR 559, 565 [16]: Slaveski v Victoria [2010] VSC 441, [223].

[50] Section 23A(1) (emphasis added). The relevant part of s 5(1A) is in similar terms.

[51] See, eg, Stingel v Clark [2006] HCA 37; (2006) 226 CLR 442, 453-4 [16]-[17] (Gleeson CJ, Callinan, Heydon and Crennan JJ), 469-70 [67]-[72] (Gummow J).

[52] Commonwealth of Australia, Review of the Law of Negligence (September 2002) ('Ipp Report'). The Ipp Report was one of the motivations behind the introduction of Part IIA: see Victoria, Parliamentary Debates, Legislative Assembly, 21 May 2003, 1782, 1784 (Steve Bracks, Premier).

[54] Victoria, Parliamentary Debates, Legislative Assembly, 21 May 2003, 1782 (Steve Bracks, Premier): 'It is important to get the balance right between the needs of people injured through negligence, and the needs of businesses, individuals and community groups to have access to insurance. These reforms strike that balance.' See also at 1788.

[55] [2007] VSC 7; (2007) 15 VR 447, 463 [50] ('Caven').

[56] In relation to the meaning of this compound expression, see further the discussion from paragraph [112] of these reasons.

[57] Limitations Act, s 27B(1) (emphasis added). This contrasts with s 18A(1) of the Limitation Act 1969 (NSW) which relevantly provides: 'This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury ...' (emphasis added).

[58] Williamson [2012] HCA 57; (2012) 248 CLR 417, 429 [34] (French CJ and Hayne J).

[61] Williamson [2012] HCA 57; (2012) 248 CLR 417, 429 [34] (French CJ and Hayne J), 431 [45] (Kiefel J agreeing).

[62] Ibid 428-9 [34] (French CJ and Hayne J).

[63] Ibid 429 [35] (French CJ and Hayne J).

[65] [1992] VicRp 18; [1992] 1 VR 279.

[69] Ibid 280. Section 3 of the Magistrates' Courts Act 1971 relevantly provided that there was a jurisdictional limit of $5,000 'in the case of an action where the damages claimed consist of or include damages in respect of personal injury'.

[70] [2007] VSC 7; (2007) 15 VR 447, 463 [50].

[72] Apart from the damages for post-traumatic stress disorder which Mrs Slaveska claimed in respect of Incident 5.

[73] [2002] HCA 35; (2002) 211 CLR 317, 329 [7] (Gleeson CJ), citing White v Chief Constable of South Yorkshire Police [1998] UKHL 45; [1999] 2 AC 455, 469 (Lord Goff) ('Tame').

[74] For example, Gaudron J stated that 'damages are recoverable in negligence only for a recognisable psychiatric injury and not for emotional distress': ibid 338-9 [44]. See also at 382 [193] (Gummow and Kirby JJ).

[75] In the table annexed to the associate judge's reasons, her Honour queries whether a negligence claim may arise from Incidents 1, 11, 12, 14, 15 and 16.

[76] [2007] VSCA 88 ('Cavenett').

[77] [1992] VicRp 18; [1992] 1 VR 279.

[78] [2005] NSWCA 445; (2005) 65 NSWLR 168 ('Ibbett').

[79] Cavenett [2007] VSCA 88, [97] (Nettle JA), [3] (Maxwell ACJ), [30]-[31] (Chernov JA).

[81] Ibid [98] (Nettle JA), citing Falcon v McCann [1998] VSC 83, [13] (emphasis added).

[82] See also Basten JA in Commonwealth v Smith [2005] NSWCA 478 at [181], as cited at Cavenett [2007] VSCA 88, [30] by Chernov JA: 'the [NSW] Limitation Act should be understood as picking up the concept of "personal injury" in the sense necessary to constitute a basis for a claim for damages'.

[83] [1992] VicRp 18; [1992] 1 VR 279, discussed at paragraph [80] above.

[84] Ibid 281, citing Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, 394 (Windeyer J) and Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549, 587 (Deane J).

[85] [2005] NSWCA 445; (2005) 65 NSWLR 168, 172 [21]-[22] (citations omitted).

[86] Ibid 171-2 [18]-[19] (Spigelman CJ), 175 [127]-[128] (Ipp JA), 180 [200]-[201] (Basten JA).

[90] The decision was subsequently appealed to the High Court, but this issue was not the subject of further discussion: New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638.

[91] Amended Statement of Claim dated 15 May 2012, [40], [59], [87], [90], [101].

[93] [2010] NSWCA 276; (2010) 79 NSWLR 327 ('Radford').

[95] See discussion at paragraphs [78]-[79] above.

[96] In accordance with Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, 151-2 [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), intermediate appellate courts ought to follow the decisions of intermediate appellate courts in other jurisdictions on the interpretation of uniform national legislation unless convinced that the interpretation adopted is 'plainly wrong'.

[97] [2006] HCA 57; (2006) 229 CLR 638.

[98] At paragraphs [72] and following.

[99] Mrs Slaveska did not develop her arguments regarding the interpretation of s 27B(1) before the associate judge.

[100] [2012] NSWSC 606 [42] ('Zhang').

[102] [1957] HCA 83; (1957) 97 CLR 465, 474 (Dixon CJ, McTiernan, Williams, Webb and Kitto JJ). See also Ruzeu v Massey-Ferguson [1982] VicRp 54; [1982] VR 529, 532 (McGarvie J); Stingel v Clark [2006] HCA 37; (2006) 226 CLR 442, 463 [46] (Gummow J).

[103] See Fitter v Veal (1701) 12 Mod 542, 544; 88 ER 1506, 1507 (The Court) ('upon declaration for assault, battery, and wounding, one may give maim in evidence, and recover damages for it'); Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127, 132 (Lord Halsbury) ('for one cause of action you must recover all damages incidental to it by law once and for ever'); Brunsden v Humphrey (1884) 14 QBD 141, 147 (Bowen LJ); Azzopardi v Bois [1968] VicRp 18; [1968] VR 183, 184-5 (Adam J); Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223, 230-1 (Hope JA, with whom Clarke and Meagher JJA agreed).

[104] [2012] HCA 57; (2012) 248 CLR 417, 429 [34] (French CJ and Hayne J) (emphasis added).

[105] Amended Statement of Claim dated 15 May 2012, 26 [A].

[106] New South Wales v Stevens [2012] NSWCA 415; [2012] 82 NSWLR 106, 112 [26] (McColl JA), [73]-[74] (Sackville AJA) (Ward JA agreeing with both).

[107] See New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638, 647 [33] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ), citing Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118.

[108] See New South Wales v Radford [2010] NSWCA 276; (2010) 79 NSWLR 327, 347-50 [102]-[119] (Sackville AJA), in particular at [105] and [116]-[119]; Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1, 8 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ).

[109] See New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638, 646-7 [31] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ), citing Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118, 129-30.

[111] Reasons [144], [148] (citations omitted).

[113] The respondents relied on Reasons [82]-[91], [184]-[192] and [210]-[212].

[115] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ).

[118] See further the discussion from paragraph [168] of these reasons.

[123] Reasons [211]. See also [83] ff.

[125] Mrs Slaveska's writ was filed on 24 November 2011, the day before a hearing in the Court of Appeal in relation to security for costs applications brought against Mrs Slaveska personally, among other matters. Mrs Slaveska was ordered to pay the security sought: Slaveski v Victoria (Unreported, Supreme Court of Victoria, Court of Appeal, Harper JA, 25 November 2011).

[126] See Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ); Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447, 461 [51]-[52] (Gleeson CJ, McHugh and Gummow JJ).

[127] See Wallis Nominees (Computing) Pty Ltd v Pickett [2013] VSCA 24, [74]-[77] (Warren CJ and Davies AJA, with whom Redlich JA agreed) and the authorities there cited.

[128] Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, 497 (Mason CJ, Wilson, Brennan and Dawson JJ); Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279, 284 (Mason CJ, Gaudron J).

[129] On the contrary, counsel for the respondents briefly indicated that the point was pressed and submitted that the matters going to the Anshun estoppel point were relevant.

[130] Compare Geelong Building Society (in liq) v Encel [1996] VicRp 44; [1996] 1 VR 594, 608 (Tadgell J).

[131] See paragraph [157] of these reasons.

[132] Being the only claims which would remain partly live out of Mrs Slaveska's claims arising from Incidents 1 to 10 and 12, based on our conclusions in relation to the appeal grounds.

[133] Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256, 265-6 [10]-[12] (Gleeson CJ, Gummow, Hayne and Crennan JJ), citing Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210, 220-221 (Lord Blackburn); Rogers v The Queen (1994) 181 CLR 251, 286 (McHugh J).

[134] Slaveski v Victoria [2009] VSC 423; (2009) 25 VR 160.

[136] Slaveski v Victoria [2010] VSC 441, [76]-[84].

[139] Batistatos [2006] HCA 27; (2006) 226 CLR 256, 265-7 [9]-[15] (Gleeson CJ, Gummow, Hayne and Crennan JJ).

[140] Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 74 (Gaudron J), approved in Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 394 (Mason CJ, Deane and Dawson JJ).

[141] (1994) 181 CLR 251, 286 (citations omitted). Cf Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130, 153-154 [97], where Robson AJA compiled a list of 14 circumstances.

[142] See, eg, Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 520 (Mason CJ, Dawson, Toohey and McHugh JJ); Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392-5 (Mason CJ, Deane and Dawson JJ); Batistatos [2006] HCA 27; (2006) 226 CLR 256, 262-8 (Gleeson CJ, Gummow, Hayne and Crennan JJ); Reichel v Magrath (1889) 14 App Cas 665. See also the recent WA Court of Appeal judgment in Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4.

[143] Indeed, where an Anshun estoppel defence is relied upon by a defendant who was not a party to the earlier proceeding, some authority suggests that the unreasonableness of the plaintiff's conduct 'must be ... of such a nature that the later proceedings against different parties are an abuse of process': Redowood Pty Ltd v Link Market Services Pty Ltd [2007] NSWCA 286, [45] (Hodgson JA).

[144] [1993] HCA 77; (1993) 177 CLR 378, 392-3 (emphasis added), citing Reichel v Magrath (1889) 14 App Cas 665, 668; Connelly v Director of Public Prosecutions [1964] AC 1254, 1361-2; Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529, 536.

[145] See Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4, [122] (Murphy JA).

[146] See, eg, ibid; Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 [28] (Handley JA); Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4, [122] (Murphy JA).

[147] See Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130, 157 [112] (Robson AJA, with whom Neave and Harper JJA agreed); Ann Street Mezzanine Pty Ltd (in liq) v Beck [2009] FCA 333; (2009) 175 FCR 532, 541-2 [31]-[35] (Finkelstein J).

[148] Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130, 157 [112] (Robson AJA, with whom Neave and Harper JJA agreed); Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245, 265 [114] (Handley JA); Ann Street Mezzanine Pty Ltd (in liq) v Beck [2009] FCA 333; (2009) 175 FCR 532, 541-2 [34]-[35] (Finkelstein J).

[149] [2006] HCA 27; (2006) 226 CLR 256, 281 [70] (Gleeson CJ, Gummow, Hayne and Crennan JJ) ('Batistatos').

[150] [1988] HCA 32; (1988) 165 CLR 197, 247. Of course, as his Honour noted, a finding that a plaintiff did not act bona fide in bringing a proceeding will nevertheless make it much easier to characterise the proceeding as an abuse of process.

[151] [2012] VSCA 42; (2012) 36 VR 130.

[152] Ibid 154 [97] (Neave and Harper JJA agreeing) (citations omitted).

[153] Slaveski v Victoria [2010] VSC 441, [1523], [1622]-[1623], [1736]-[1737], [1755], [1930].

[155] Ibid [1276], [1457]. Compare para [61(a)] of Mrs Slaveska's Amended Statement of Claim dated 15 May 2012.

[156] Slaveski v Victoria [2010] VSC 441, [1217]. Compare paras [57] and [61(f)] of Mrs Slaveska's Amended Statement of Claim dated 15 May 2012.

[157] Slaveski v Victoria [2010] VSC 441, [1335]. Compare paras [55]-[56] and [61(c)] of Mrs Slaveska's Amended Statement of Claim dated 15 May 2012.

[158] Slaveski v Victoria [2010] VSC 441, [1338]. Compare para [61(e)] of Mrs Slaveska's Amended Statement of Claim dated 15 May 2012.

[159] Slaveski v Victoria [2010] VSC 441, [1458]-[1459].

[162] See Slaveski v Victoria (Unreported, Supreme Court of Victoria, Court of Appeal, Neave JA and Vickery AJA, 1 February 2013); Slaveski v Victoria [2013] HCASL 84.

[163] [2009] HCA 27; (2009) 239 CLR 175.

[164] Ibid 214 [100]-[101] (citations omitted).

[165] See paragraph 151 above.

[166] Slaveski v Victoria [2010] VSC 441, [53].

[167] See the passage set out at paragraph 151 above.

[168] R v Slaveski [2011] VSC 643 (Whelan J); R v Slaveski (Sentence) [2012] VSC 7 (Whelan J).

[169] Slaveski v Victoria [2010] VSC 441, [2365]-[2368].

[170] Slaveski v Victoria [2010] VSC 441, [76]-[77], [370].

[171] See, eg, Duncan v Lowenthal [1969] VicRp 21; [1969] VR 180, 185 (Winneke CJ, Smith and Gowans JJ). A plaintiff with full knowledge of the relevant circumstances who has allowed a delay to continue will generally have greater difficulty in satisfying the Court that the proceeding should be maintained: Alginates (Aust) Pty Ltd v Thomson & Carroll Pty Ltd [1970] VicRp 74; [1970] VR 570, 574 (Smith J).

[172] [2006] HCA 27; (2006) 226 CLR 256, 280 [65].

[173] Section 10(1)(a).

[174] Section 25.

[175] Section 23.

[176] Section 18.

[177] Sections 7-8.

[178] Section 9(g).

[179] Section 9(d).

[180] [2013] VSCA 337.

[181] Ibid [26] (Redlich and Priest JJA and Macaulay AJA).

[182] The High Court has stated that 'although there can be no universal rule, it is important for intermediate courts of appeal to consider whether to deal with all grounds of appeal, not just with what is identified as the decisive ground': Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1, 6 [12] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

[188] Reasons [65]. See also paragraph [3] above.

[195] Reasons [106]. See also Slaveski v Victoria [2010] VSC 441, [52], [518] (Kyrou J). Mr Slaveski's original statement of claim and the first three amended versions were signed by solicitors JN Zigouras & Co. The fourth and fifth amended versions were signed by Mr Slaveski and the sixth and seventh amended versions by Mrs Slaveska as his litigation guardian. Pro bono counsel appeared, with leave, as friends of the Court on 22 September 2009 in relation to Mrs Slaveska's appointment as litigation guardian: Slaveski v Victoria [2009] VSC 423; (2009) 25 VR 160, 171 [60] (Kyrou J). Pro bono counsel also represented Mr Slaveski in late 2011 for part of the contempt proceedings brought against him: R v Slaveski (Sentence) [2012] VSC 7 (Whelan J).

[199] There is authority to suggest that a decision on the application of Anshun estoppel can be set aside if an appellate court is appropriately satisfied that it was wrong as it is not a discretionary decision to which the principles in House v The King apply: see, eg, Redowood Pty Ltd v Link Market Services Pty Ltd [2007] NSWCA 286, [53] (Hodgson JA, with whom Mason P and Bryson AJA agreed).

[200] Anshun [1981] HCA 45; (1981) 147 CLR 589, 602 (Gibbs CJ, Mason and Aickin JJ); Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245, 246-7 [3]-[4] (Allsop P), 252 [39], 262 [89] (Giles JA).

[201] [1998] VSCA 52; [1999] 2 VR 19.

[202] Ibid 26-7 [23] (Ormiston and Phillips JJA agreeing).

[208] Solak v Registrar of Titles [2011] VSCA 279; (2011) 33 VR 40, 55 [73] (Warren CJ) ('Solak'), citing Primus Telecommunications Pty Ltd v Kooee Communications Pty Ltd [2008] FCA 1027, [5] (Marshall J). See also Gibbs v Kinna [1998] VSCA 52; [1999] 2 VR 19, 29 [33] (Kenny JA, Ormiston and Phillips JJA agreeing).

[209] Solak [2011] VSCA 279; (2011) 33 VR 40, 55 [71].

[211] [2014] NSWSC 774 ('McGrath').

[213] Ibid [59], quoting Lord Hobhouse in Arthur JS Hall & Co v Simons [2002] 1 AC 615, 743.

[214] [1977] 1 WLR 510, 515.

[215] See, eg, Anshun [1981] HCA 45; (1981) 147 CLR 589, 603 (Gibbs CJ, Mason and Aickin JJ); Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, [30], [200] (McColl JA, with whom Giles and Campbell JJA agreed).

[216] (2002) 210 CLR 575, 604 [36] (Gleeson CJ, McHugh, Gummow and Hayne JJ) (citations omitted).

[217] [1998] VSCA 52; [1999] 2 VR 19, 27 [25] (Ormiston and Phillips JJA agreeing).

[218] [1981] HCA 45; (1981) 147 CLR 589, 603-4 (Gibbs CJ, Mason and Aickin JJ).

[219] See Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45, 64 (Barwick CJ and Kitto J); R v Ireland [1970] HCA 21; (1970) 126 CLR 321, 330 (Barwick CJ).

[221] See paragraph [162].

[222] See the discussion from paragraph [161] of these reasons.

[223] See Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 531-2 (Dixon J).

[227] Mr Slaveski's writ was filed on 5 September 2006 and the trial in his proceeding did not commence until 3 August 2009.

[228] Slaveski v Victoria [2010] VSC 441, [11] (Kyrou J). It was not in dispute before Kyrou J that Mr Slaveski suffers from a panic disorder, although there was argument about its severity and causes, and also about whether Mr Slaveski suffered from any other mental illnesses. See also Slaveski v Victoria [2009] VSC 423; (2009) 25 VR 160, 177-178 [7]-[9] (Kyrou J).

[230] Sahin v National Australia Bank Ltd [2012] VSCA 317, [98] (Ferguson AJA, with whom Warren CJ and Neave JA agreed).

[231] See footnote 208 above.

[232] Anshun [1981] HCA 45; (1981) 147 CLR 589, 602-3 [34] (Gibbs CJ, Mason and Aickin JJ).

[233] See paragraph 155 of these reasons.

[234] See paragraph 186 of these reasons; Reasons [70].

[235] See Batistatos [2006] HCA 27; (2006) 226 CLR 256, 281 [69] (Gleeson CJ, Gummow, Hayne and Crennan JJ). The Court identified the relevant matter as 'the burdensome effect upon the defendants that has arisen by the lapse of time'.

[236] Mrs Slaveska's arguments about the scope of Part IIA of the Limitations Act and the partial survival of her claims were not made before the associate judge, although the respondents did not press an objection to those arguments being considered in this appeal.

[237] See Peet Ltd v Richmond [2010] VSCA 71, [4] (Nettle JA); Mischel Holdings Pty Ltd (in liq) v Mischel [2013] VSCA 375, [138]-[143] (Ashley, Priest and Santamaria JJA).