Twigg v Pitcher Partners Holdings Pty Ltd (No 4) [2023] NSWSC 109

Supreme Court New South Wales

Medium Neutral Citation: Twigg v Pitcher Partners Holdings Pty Ltd (No 4) [2023] NSWSC 109 Hearing dates: 1, 2 and 15 December 2022; further written submissions 22 December 2022 Date of orders: 20 February 2023 Decision date: 20 February 2023 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Application to dismiss proceedings as an abuse of process refused Catchwords: CIVIL PROCEDURE – stay of proceedings – inherent power – abuse of process – dismissal or permanent stay of proceedings – where in earlier proceedings plaintiffs were successful in establishing a breach of fiduciary duty by the fourth defendant – where plaintiffs did not make full recovery in the earlier proceedings – where plaintiffs now seek in separate proceedings to establish that the first to third defendants are accessorily liable for the conduct impugned in the earlier proceedings – where facts substantially the same – where first to third defendants will advocate for different findings in these proceedings than were made in the earlier proceedings – where first plaintiff now unable to give evidence – where fourth defendant bound by findings in earlier proceedings – whether plaintiffs made forensic decision not to join first to third defendants in earlier proceedings – whether plaintiffs should have joined first to third defendants in earlier proceedings – whether continuation of these proceedings will occasion unjustifiable oppression to the first to third defendants – whether continuation of these proceedings will bring administration of justice into disrepute Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) Oaths Act 1900 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 Charisteas v Charisteas [2021] HCA 29 Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; [1995] NSWSC 136 Hana v Shad Legal Services Pty Ltd [2021] NSWCA 258 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Johnson v Gore Wood & Co [2002] 2 AC 1 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9 Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142 State Bank of New South Wales Ltd v Stenhouse Ltd & Ors (1997) Aust Torts Reports 81-423 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Twigg v Pitcher Partners Holdings Pty Ltd [2022] NSWSC 1043 Twigg v Twigg [2019] NSWSC 373 Twigg v Twigg [2022] NSWCA 68 Twigg v Twigg (No 4); Lambert v Twigg Investments Pty Ltd (No 3) [2020] NSWSC 1159 Twigg v Twigg (No 5); Lambert v Twigg Investments Pty Ltd (No 4) [2020] NSWSC 1782 UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Category: Procedural rulings Parties: Diane Twigg (First Plaintiff) Twigg Plant Hire Pty Ltd atf The Twigg Family Trust (Second Plaintiff) Ipswich Landfill Pty Ltd atf the Ipswich Landfill Trust (Third Plaintiff) Brooklyn Landfill & Waste Management Pty Ltd atf the Brooklyn Landfill Trust (Fourth Plaintiff) Pitcher Partners Holdings Pty Ltd (First Defendant) Pitcher Partners Investment Services Pty Ltd (Second Defendant) Pitcher Partners Advisors Proprietary Limited (Third Defendant) Maxwell James Twigg (Fourth Defendant) Twigg Co Pty Ltd (Fifth Defendant) Representation: Counsel: M R Elliott SC with D K Smith (Plaintiffs) D L Williams SC with J D Jaffray (First, Second & Third Defendants)