The defendant sought summary judgment under s63 Civil Procedure Act 2010 (Vic) and R23.03 VSC Rules, and otherwise to strike the matter out under VSC Rule 23.01, alleging an abuse of process.
The matter was permanently stayed, and the discussion of the principles of what is an abuse of process, set out by Kyrou J, follow:
13 In State Bank of New South Wales Ltd v Stenhouse Ltd, Giles CJ stated that the ‘guiding considerations’ in determining whether re-litigation of an issue in a subsequent proceeding constitutes an abuse of process are ‘oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice’. His Honour listed the following non-exhaustive factors to which regard may be had:
(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an 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 proceedings; all part of—
(f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation 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.
14 The factors listed in the above passage provide a convenient framework for a consideration of whether this proceeding constitutes an abuse of process.
His Honour considered that (by way of summary):
- The issue of compliance with the contract and the issue of return of the deposit, being the ultimate issue, were of central importance to this proceeding and the earlier proceeding.
- The plaintiff had ample opportunity to fully litigate the ultimate issue in the earlier proceeding.
- In the earlier proceeding, Williams J found that the plaintiffs were not entitled to a refund of the deposit under the relevant provision of the contract, and this was not appealed nor varied.
- The same substantive relief was sought in both proceedings.
- The plaintiffs did not seek to rely on fresh evidence, but instead sought to rely on evidence that they previously had in their possession but consciously decided to not adduce at the earlier proceeding.
- If the plaintiffs are permitted to re-litigate the defendant would be at risk of an adverse decision, and the principal of finality undermined.
- The prejudice to the plaintiffs, caused mainly by the forensic decisions they made in the earlier proceeding, is outweighed by the strong public interest in finality in litigation.
In ordering that the proceeding be permanently stayed, His Honour said:
25 The power to permanently stay a proceeding as an abuse of process is to be exercised sparingly and upon examination of the relevant circumstances of the particular case. In the present case, a consideration of all the circumstances and an overall balancing of justice as between the parties overwhelmingly supports the conclusion that this proceeding constitutes an abuse of process that is serious enough to warrant an order that the proceeding be permanently stayed.
His Honour considered the application of res judicata and issue estoppel, but did not consider it necessary to reach a final view of the matter.