Someone recently bought our

students are currently browsing our notes.


Causes Of Action And Parties Notes

Law Notes > Litigation - Civil Procedure Notes

This is an extract of our Causes Of Action And Parties document, which we sell as part of our Litigation - Civil Procedure Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Litigation - Civil Procedure Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

1 of 19

6 > standing/estoppel/joining causes of action and parties

1 of 19

Table of Contents

6 causes of action and parties 6

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

1. Standing

2. Reasons why you have to join all causes of action and parties
- Anshun estoppel a. Anshun estoppel: Anshun, Gibbs v Kinna (industrial court) Rippon v Chilcotin (relitigation) and Redowood

3. Joining parties UCPR rr 6.19-6.28

4. Changing parties UCPR a. Changing parties

5. 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 statutebarred 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

1 of 19

6 > standing/estoppel/joining causes of action and parties

1 of 19

1 Standing





Private proceedings Standing issues don't arise: in proceedings purely private in nature (eg actions for breach of contracts or actions for damages) o 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. o AG:AG can initiate proceedings with respect to a public wrong or grant a fiat to allow a private person to sue o Person with fiat is a 'relator': UCPR r 7.23. o Fiat liable for costs of action: Attorney-General v Scott I o 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 o Eg children under 18 years, people with physical/mental disability unable to receive communications to express will in regard to property or affairs.

3 of 19

6 > standing/estoppel/joining causes of action and parties

3 of 19

2 Reasons why you have to join all action/parties > Anshun 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 Res Judicata (cause of action estoppel): This is the rule that if a Overview dispute is judged by a court of competent jurisdiction, the judgment of of the court is final and conclusive as to the rights and duties of the parties estoppels 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.

2b Anshun estoppel

3 of 19

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 crossclaim in an earlier case between the same parties

* (Note in Rippon v Chilcotin - o court said that where parties are same test of unreasonableness wil almost inevitably mean that later proceedings were oppressive and an abuse of process o 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 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

6 > standing/estoppel/joining causes of action and parties

3 of 19

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

5 of 19

6 > standing/estoppel/joining causes of action and parties


5 of 19

5 of 19

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 o 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 liable this was caused by ASX's negligence. This was stayed. Eventually M won against R. R then tried to sue ASX for misrepresentation. o Here - was issue of abuse of process?
? If proceedings had been a tripartite contest, with M claim against ASX claim, then strongly arguable that even though no issue joined between R and ASX would have been unreasonable for R not to agitate claim against ASX.
? ASX gave evidence but not with legal advisers. So present proceedings not oppressive or unfair. o Here possibility of inconsistent finding?
? Possibility of finding a binding contract extremely remote considering the prior proceeding. But this finding was not sought by the person initiating the litigation anyway. So doesn't support Anshun estoppel: Redowood
? Redowood wasn't seeking any different findings of fact. Just because Redowood might get a different adverse finding not enough to support estoppel.
? Redowood not alleging that there was an assumption/representation such that compliance would have absolved Redoowd from complying with the requirements of Mongoose's offer. Is alleging that negligence of ASX caused it to act in such a way that it did not obtain a contract and was not otherwise able to retrieve the situation.
? ASX not alleging any duty based on the right offer document, but rather a duty based on R's dealings with ASX.

6 > standing/estoppel/joining causes of action and parties

5 of 19

3 Summary of Joining parties Intro

In joining parties:

1. 2 ways to join parties: a. P or D can join same proceedings where (i) separate proceedings would give rise to a common q of law/fact and (ii) all rights of relief claimed in originating process are in respect of or arise out of the same transaction or series of transactions (r 6.19 UCPR) (legg: if meet these requirements then you can join P or D as of right) OR b. Where conditions not fulfilled court also has power to grant leave for P or Ds to join in same proceedings: r

6.19 UCPR

2. Court will determine whether person should be P under r

6.24 a. If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party: r 6.24 b. The test to apply in determining whether persons ought to be joined is whether the person's rights against or liabilities to any party in the action In respect of the subject matter of the action are directly affected by any order which may be made in the action: Pagang Mining Co v Choong Sam ; applied in News v ARFL

3. Person can apply to court to become a P: UCPR r 6.27

4. When court won't join parties: Should court take view that joining parties (or causes of action) in any proceedings may be embarrassing, inconvenient or cause delay to the conduct of the proceedings the court can order that separate trials should take place or make any order that the court thinks fit: r 6.22 UCPR

5. Such decisions are determined by taking into account the overriding purpose principles in ss 56 to 60 of CPA (to acilitate just quick cheap resolution of real issues), having regard to objects of case management Miscellaneous stuff before getting into joining Ps and Ds:

6. Lawyers: P who join in proceedings are usually represented by same legal representative: Goold & Porter v Housing Commission a. Discretion sparingly exercised to allow Ps to be represented by different lawyers where P's interests are in conflict/disagree about conduct of matter but more often such disagreement or conflict results in one of the Ps being added as a D: Willcocks When joining Ps

7. Where different people are jointly entitled to the same relief all those people should be joined as plaintiffs.

8. Person sought to be joined as a P must give consent: UCPR

Buy the full version of these notes or essay plans and more in our Litigation - Civil Procedure Notes.