#8507 - Causes Of Action And Parties - Litigation

1 Standing 3

2 Reasons why you have to join all action/parties > Anshun 4

3 Summary of Joining parties 7

4 Changing parties after proceedings commenced 10

5 Joinder of causes of action 11

CB: Rippon v Chilcotin 6.80 pg 202 – different defendant in second proceeding 14

CB: Redowood v Link market services 15

6.150 what is a transaction 17

6.280 New Idafe v Barnard 17

6.280 News v Australian Rugby Football League 17

6.310 Weber v Ankin 18

Causes of Action and Parties – read Chapter 6 [omit 6.220-6.240 & 6.360- 6.390]

Standing
Reasons why you have to join all causes of action and parties – Anshun estoppel
1. Anshun estoppel: Anshun, Gibbs v Kinna (industrial court) Rippon v Chilcotin (relitigation) and Redowood
Joining parties UCPR rr 6.19-6.28
Changing parties UCPR -
1. Changing parties
Joining causes of action UCPR rr 6.18, 6.22

*NOTE: SEE AMENDMENT POWERS – court has power under s 64 CPA to amend pleadings or grant leave to amend document in proceedings. Generally amendment takes effect not from date of amendment but from date of the original document which is amended.

However where amendment has effect of introducing a new P or D or a new cause of action the date of such an amendment in relation to that cause of action subject to s 65 is taken to be the date on which the amendment is made r 6.28, r 19.2 (amendments to add or remove parties) conforms with s 64(3) CPA in this respect.
Court ha spower to make amendments that raise statute-barred matters namely correcting mistake in name of party, changing capacity in which P sues, permitting addition or substitution of cause of action that arose after commencement of proceedings if new cause of action aries out of same or substantialy same facts as originally pleaded. Such amendment is authroised by CPA s 65 despite anything in limitation acts if proceedings were commenced before limitation period expired.
Unless court orders otherwise amendment under s 65 is taken to be effected from date on which proceeding were commenced.
See chapter 9.

Note:

Rules for joining of parties more demanding than those for causes thus decisions concerning causes of actions that are to be joined are subject to decisions concerning the joining of parties

Private proceedings Standing issues don’t arise: in proceedings purely private in nature (eg actions for breach of contracts or actions for damages)
- Eg in negligence – you had to be the person owed the duty of care.
Standing issues arise: when public element, eg to enforce public rights/duties under legislation, constitutional validity of legislation test cases or proceedings for review of decisions of inferior courts or administrators.
- AG:AG can initiate proceedings with respect to a public wrong or grant a fiat to allow a private person to sue
- Person with fiat is a ‘relator’: UCPR r 7.23.
- Fiat liable for costs of action: Attorney-General v Scott I
- Relator action is dependent upon AG’s consent to proceedings being initiated and this discretion is unfettered and beyond the control of the courts: Re Suncorp Insurance
Under CL: Rule is that a party invoking jurisdiction of court in respect to interference with a public right must show that some private right of that party has been interfered with or that the party has suffered ‘special damage peculiar to himself’: Truth about Motorways v Macquarie
Under legislation: may have to show special interest or aggrieved: Truth About Motorways

Other screening mechanisms

People might be subject to legal incapacity: UCPR r 7.13
People may only be able to sue /defend actions through a litigation guardian: UCPR r 7.14
- Eg children under 18 years, people with physical/mental disability unable to receive communications to express will in regard to property or affairs.

Intro	Note how important it is to join all actions to avoid anshun estoppel 2a overview of estoppel 2b what is anshun estoppel – when parties will be estopped
2a Overview of estoppels	Res Judicata (cause of action estoppel): This is the rule that if a dispute is judged by a court of competent jurisdiction, the judgment of the court is final and conclusive as to the rights and duties of the parties involved. Res Judicata constitutes an absolute bar to a subsequent suit for the same cause of action. – ie entire cause of action decided and cannot be litigated Issue estoppel: Where a particular matter has been decided in earlier proceedings, the party is estopped or barred from raising it in subsequent proceedings. It differs from res judicata in that res judicata relates to the entire claim, rather than just one issue. Issue estoppel will only apply to the ratio – determination of something gessential to case. Extended res judicata or Anshun estoppel: Estoppel where the matter relied upon as a defence/cause of action in the second action was so relevant to the subject matter of the first action that it was unreasonable not to rely on it: anshun The risk of an inconsistent judgement is the most persuasive argument for the application of Anshun Estoppel The Anshun estoppel doctrine can also apply to stop a party litigating an issue which they should have raised by cross-claim in an earlier case between the same parties (Note in Rippon v Chilcotin – court said that where parties are same test of unreasonableness wil almost inevitably mean that later proceedings were oppressive and an abuse of process Where parties are different test of unreasonableness still relevant but must be considered not conclusive or else understood as involving unreasonableness of such a nature that the later proceedings against different parties are an abuse of process. Port of Melbourne Authority v Anshun Pty Ltd Gibbs v Kinna Rippon v Chilcotin Pty Ltd Redowood
2b Anshun estoppel	Principles: Requirements: Estoppel where the matter relied upon as a defence/cause of action in the second action was so relevant to the subject matter of the first action that it was unreasonable not to rely on it: anshun. Also applies to cross-claims that should have been raised. Rationale: should foster public/private interests by encouraging parties to advance all claims/defences at once, and diminish unnecessary duplication of curial or other efforts. Thus Principle to be applied only on the clearest of cases: Gibbs v Kinna Note Legg: “ there are two ways you can put the argument, an estoppel approach or abuse of process approach” When it is ‘unreasonable’ to not raise a matter so relevant: Two threshold questions: (1) cause of action must be one that could have been raised in previous proceedings (2) must appear that same/substantially the same facts will arise for consideration in second as in first proceedings: Gibbs v Kinna (these are necessary but not significant conditions) One factor indicate of unreasonableness: If any judgment/order on second proceeding would conflict with judgment/order in earlier proceeding.: Gibbs v Kinna iWhen later proceedings between same or different parties: When earlier and later procedings between same parties a finding of unreasonableness in not raising a matter would almost invietably mean that the later proceedings were oppressive and an abuse of process. Where parties are different: test of unreasonableness is still relevant, but must be considered not conclusive, or that unreasonableness is of such a nature that the later proceedings against different parties are an abuse of process: Redowood – eg Rippon Case briefs: ESTOPPED Where an indemnity cause of action should have been litigated in first proceedings: in Anshun S sued A and POM. POM paid 90% of S’ damages and A paid remaining 10%. However under an indemnity lause, A would have had to pay 100%. POM tried to sue A. POM as estopped. The matter now trying to be raised was a defence that POM hould have raised in first proceeding. The second proceedings would cause a conflicting judgment / declaration of rights which would be inconsistent in respect of same transaction. NOT ESTOPPED: Where on initiating claims in a particular court not open to him to raise other claims, only open to him through making an amendment but this would have delayed the relatively straightforward and pseedy adjudication of his primary claim which is meant to have been determined in the IR Court ‘without undue formality’ and ‘with regard to need to avoid unnecessary cost to the parties to the application’. As Anshun was only to be applied in clearest of principles, P not estopped: Gibbs v Kinna ESTOPPED where abuse of process, where trying to relitigate a case already lost: Eg in Rippon v Chilcotin – D bought business from vendors, sued on contract and under TPA. In first proceedings won on contract but lost in misrepresentation. They then wanted to bring a second claim against the accountants – but in the fist proceeding the P had been found not to rely on the accounts and so there was no misrepresentation. Abuse of process because they were trying to relitigate a case they have lost. NOT estopped where party wasn’t originally involved in first proceeding, no risk of inconsistent judgment because looking at different facts, and if cross-claim had been included that would have muddied issues: Redowood Here: in first proceedings, R sued Mongoose, trying to get purchase price for goods. M denied act of ASX sending R a partially completed acceptance form gave right to a contract. M then sued ASX saying if...

2a Overview of estoppels

Res Judicata (cause of action estoppel): This is the rule that if a dispute is judged by a court of competent jurisdiction, the judgment of the court is final and conclusive as to the rights and duties of the parties involved.

Res Judicata constitutes an absolute bar to a subsequent suit for the same cause of action. – ie entire cause of action decided and cannot be litigated

Issue estoppel: Where a particular matter has been decided in earlier proceedings, the party is estopped or barred from raising it in subsequent proceedings.

It differs from res judicata in that res judicata relates to the entire claim, rather than just one issue.
Issue estoppel will only apply to the ratio – determination of something gessential to case.

Extended res judicata or Anshun estoppel: Estoppel where the matter relied upon as a defence/cause of action in the second action was so relevant to the subject matter of the first action that it was unreasonable not to rely on it: anshun

The risk of an inconsistent judgement is the most persuasive argument for the application of Anshun Estoppel
The Anshun estoppel doctrine can also apply to stop a party litigating an issue which they should have raised by cross-claim in an earlier case between the same parties
(Note in Rippon v Chilcotin –
- court said that where parties are same test of unreasonableness wil almost inevitably mean that later proceedings were oppressive and an abuse of process
- Where parties are different test of unreasonableness still relevant but must be considered not conclusive or else understood as involving unreasonableness of such a nature that the later proceedings against different parties are an abuse of process.
Port of Melbourne Authority v Anshun Pty Ltd
Gibbs v Kinna
Rippon v Chilcotin Pty Ltd
Redowood

2b Anshun estoppel

Principles:

Requirements: Estoppel where the matter relied upon as a defence/cause of action in the second action was so relevant to the subject matter of the first action that it was unreasonable not to rely on it: anshun. Also applies to cross-claims that should have been raised.
Rationale: should foster public/private interests by encouraging parties to advance all claims/defences at once, and diminish unnecessary duplication of curial or other efforts. Thus Principle to be applied only on the clearest of cases: Gibbs v Kinna

Note Legg: “ there are two ways you can put the argument, an estoppel approach or abuse of process approach”

When it is ‘unreasonable’ to not raise a matter so relevant:

Two threshold questions: (1) cause of action must be one that could have been raised in previous proceedings (2) must appear that same/substantially the same facts will arise for consideration in second as in first proceedings: Gibbs v Kinna (these are necessary but not significant conditions)
One factor indicate of unreasonableness: If any judgment/order on second proceeding would conflict with judgment/order in earlier proceeding.: Gibbs v Kinna

iWhen later proceedings between same or different parties:

When earlier and later procedings between same parties a finding of unreasonableness in not raising a matter would almost invietably mean that the later proceedings were oppressive and an abuse of process.
Where parties are different: test of unreasonableness is still relevant, but must be considered not conclusive, or that unreasonableness is of such a nature that the later proceedings against different parties are an abuse of process: Redowood – eg Rippon

Case briefs:

ESTOPPED Where an indemnity cause of action should have been litigated in first proceedings: in Anshun S sued A and POM. POM paid 90% of S’ damages and A paid remaining 10%. However under an indemnity lause, A would have had to pay 100%. POM tried to sue A. POM as estopped. The matter now trying to be raised was a defence that POM hould have raised in first proceeding. The second proceedings would cause a conflicting judgment / declaration of rights which would be inconsistent in respect of same transaction.
NOT ESTOPPED: Where on initiating claims in a particular court not open to him to raise other claims, only open to him through making an amendment but this would have delayed the relatively straightforward and pseedy adjudication of his primary claim which is meant to have been determined in the IR Court ‘without undue formality’ and ‘with regard to need to avoid unnecessary cost to the parties to the application’. As Anshun was only to be applied in clearest of principles, P not estopped: Gibbs v Kinna
ESTOPPED where abuse of process, where trying to relitigate a case already lost: Eg in Rippon v Chilcotin – D bought business from vendors, sued on contract and under TPA. In first proceedings won on contract but lost in misrepresentation. They then wanted to bring a second claim against the accountants – but in the fist proceeding the P had been found not to rely on the accounts and so there was no misrepresentation. Abuse of process because they were trying to relitigate a case they have lost.
NOT estopped where party wasn’t originally involved in first proceeding, no risk of inconsistent judgment because looking at different facts, and if cross-claim had been included that would have muddied issues: Redowood
- Here: in first proceedings, R sued Mongoose, trying to get purchase price for goods. M denied act of ASX sending R a partially completed acceptance form gave right to a contract. M then sued ASX saying if...

#8507 - Causes Of Action And Parties - Litigation - Civil Procedure

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