TRIFUNOVIC v TRIFUNOVIC [1997] NSWCA 323

TRIFUNOVIC v TRIFUNOVIC

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and POWELL JJA 28 November 1997, 18 December 1997

[1997] NSWCA 323

Family Provision Act — De Facto Act — evidence contradictory — separate proceedings — different parties.

FACTS

The appellant appeals an order of Master McLaughlin striking out as an abuse of process of the Court an application by the her under the De Facto Relationships Act, 1984 in which she gave evidence inconsistent to that given in proceedings under the Family Provision Act before Bryson J.

HELD

The Master's discretion miscarries unless the details of the evidence at the time the oral evidence is given goes to the issues in the proceedings below or misled his Honour. In the absence of a general rule that if one has given inconsistent evidence in earlier proceedings against one defendant one is estopped against initiating proceedings against another defendant, there is no abuse of process.

Mason P I have had the benefit of reading the judgments of Meagher JA and Powell JA. I agree with each. The appeal must be upheld. The Registrar should be directed to refer the papers to the Attorney General.

The respondent sought to support the judgment of the learned Master by two alternative arguments. First it was contended that as a matter of public policy the Court could not countenance a party in one case mounting a claim that proceeded on a supposition entirely incompatible with that adopted in another. Secondly, it was said that the evidence before the Master revealed that the appellant was a witness of such poor credibility that it was possible to characterise the current claim as so untenable as to amount to a frivolous waste of the Court's time.

I would reject the first argument. There may be cases where it would be an abuse of process for a party to advance in one case a claim rejected in another, even though the parties are different. (If they were the same, the principles of issue estoppel would produce the same result.) Thus, in Reichel v Magrath! Lord Halsbury LC said that it would be: