Sheahan v Slattery [2003] NSWSC 438

New South Wales Supreme Court

CITATION : Sheahan v Slattery [2003] NSWSC 438 HEARING DATE(S) : 22 May, 2003 JUDGMENT DATE : 23 May 2003 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Notice of Motion dismissed.

CATCHWORDS : PRACTICE AND PROCEDURE - ABUSE OF PROCESS - "ANSHUN" ESTOPPEL - Defendant moves to strike out Statement of Claim as abuse of process because prior proceedings raised same factual issues - neither present Plaintiff nor present defendant was a party to prior proceedings - present defendant had not yet filed defence. Held: "Anshun estoppel" does not apply where neither party to present proceedings was a party to prior proceedings - it was impossible to say, prior to filing of defence, whether any factual issues in present proceedings would be the same as in prior proceedings - subsequent proceedings will not be stayed unless there will be a conflict in judgments, not merely a conflict in fact finding. LEGISLATION CITED : Supreme Court Rules 1970 - Pt 13 r(1), Pt 15 r26(1) - Barnes v Addy (1874) LR 9 Ch App 244 CASES CITED : - Foodco Group Pty Ltd v Northgan Pty Ltd (1998) 83 FCR 356 - Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 - State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 PARTIES : John Sheahan - Plaintiff John Joseph Slattery - Defendant FILE NUMBER(S) : SC 5573/02 COUNSEL : W.G. Muddle - Plaintiff D.R. Stack - Defendant SOLICITORS : Deacons - Plaintiff Kemp Strang - Defendant

Introduction

1 By Notice of Motion filed on 26 February 2003, as amended by consent yesterday morning, the Defendant, Mr Slattery, seeks orders under Part 13 r(1) and Part 15 r26(1) of the Supreme Court Rules 1970 or pursuant to the inherent jurisdiction of the Court that the Plaintiff's Statement of Claim be struck out as an abuse of process or pursuant to the principles enunciated in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. Alternatively, Mr Slattery seeks an order staying these proceedings until the conclusion of the taking of accounts ordered by Windeyer J in proceedings 2000/98. 2 The background facts to this application are set out in a judgment of Windeyer J delivered on 16 February 2001 in proceedings number 2000/98. Mr Stack, who appears for Mr Slattery, says that that judgment has already decided issues which arise in the present proceedings, so that these proceedings are an abuse of process or are estopped upon Anshun principles.