Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Benton v QBE Workers Compensation (NSW) Ltd [2015] NSWCA 101 Hearing dates: 7 April 2015 Date of orders: 17 April 2015 Decision date: 17 April 2015 Before: Meagher JA at [1]; Ward JA at [15]; Adamson J at [90] Decision: 1.Leave to appeal is refused. 2.Applicant to pay the respondent's costs of the proceedings. Catchwords: APPEAL – application for leave to appeal – discretionary interlocutory decision – summary dismissal for abuse of process – whether primary judge erred in approaching test for summary dismissal – whether primary judge misapprehended nature of application – whether pleading raised issues different from those determined in prior proceedings Legislation Cited: District Court Act 1973 (NSW) s 127 Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28 Workers Compensation Act 1987 (NSW) ss 151D, 151Z Cases Cited: AB v State of New South Wales [2014] NSWCA 243 Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 Benton v Scott's Refrigerated Freightways [2008] NSWCA 143 Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 Bruce v Odhams Press Limited [1936] 1 KB 697 Calyon v Michailaidis [2009] UKPC 34 Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Charafeddine v Morgan [2013] NSWDC 7 Collier v Lancer (No 2) [2013] NSWCA 186 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 House v The King [1936] HCA 40; (1936) 55 CLR 499 Jaycar Pty Limited v Lombardo [2011] NSWCA 284 Liao v New South Wales; Zhang v State of New South Wales [2014] NSWCA 71 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Pinson v Lloyds and National Provincial Foreign Bank Limited [1941] 2 KB 72 R v O'Halloran [2000] NSWCCA 528; 159 FLR 260 Reichel v McGrath (1889) 14 App Cas 665 Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 Secretary of State For Trade and Industry v Bairstow [2003] EWCA Cov 321; [2004] Ch 1 Shanmugaratnam v Strasburger Enterprises (Properties) Pty Ltd [2004] NSWCA 229 Shaw v State of New South Wales [2012] NSWCA 102 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 State Bank of New South Wales v Stenhouse Ltd [1997] Aust Tort Rep 81-423 Tiufino v Warland [2000] NSWCA 110; (2000) 50 NSWLR 104 Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWCA 174 Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 Williams v Director General of the National Parks & Wildlife Services [2002] NSWCA 176 Young v Hones (No 2) [2014] NSWCA 338 Category: Principal judgment Parties: Kenneth Benton (Applicant) QBE Workers Compensation (NSW) Ltd (Respondent) Representation: Counsel: R Sheldon SC with J Reimer (Applicant) JW Catsanos with AJ Parker (Respondent) Solicitors: Brydens Compensation Lawyers (Applicant) Moray & Agnew (Respondent) File Number(s): 2014/00160403 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 2 May 2014 Before: Balla DCJ File Number(s): 2012/257049 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This Headnote is not to be read as part of the judgment] This judgment relates to an application for leave to appeal from a decision of the District Court summarily dismissing proceedings commenced by Mr Benton against his former employer's workers' compensation insurer for damages for injuries he claimed he sustained in October 2003 when, during the course of his employment as a truck driver, he was attempting to alight from the cabin of a prime mover, slipped and fell to the ground. The proceedings were summarily dismissed on the basis that they were an abuse of process as Mr Benton was seeking to re-litigate matters already conclusively determined against him in previous proceedings he had brought in the District Court and in the Court of Appeal against the owner of the truck. Held refusing leave to appeal: 1. no error in the House v The King sense warranting appellate intervention was demonstrated in the exercise of the primary judge's discretion summarily to dismiss the proceedings (Ward JA at [87], [89], Meagher JA at [1] and Adamson J at [90] agreeing) House v The King [1936] HCA 40; (1936) 55 CLR 499 applied. 1. the primary judge did not err in concluding that the proceedings were an abuse of process. Any appeal on that basis would be bound to fail (Ward JA at [87], Meagher JA at [1] and Adamson J at [90] agreeing) General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Shaw v State of New South Wales [2012] NSWCA 102; Liao v New South Wales [2014] NSWCA 71 considered. Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198, Tiufino v Warland [2000] NSWCA 110; (2000) 50 NSWLR 104 applied. Judgment 1. MEAGHER JA: I agree for the reasons given by Ward JA that this application for leave to appeal should be dismissed with costs. I add the following observations which adopt the abbreviations used in her Honour's judgment. 2. The respondent, QBE, applied under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) for an order that Mr Benton's proceedings commenced against it in August 2012 be dismissed. That application was made on the basis that the proceedings were an abuse of process because they sought to re-litigate an issue decided in earlier proceedings between Mr Benton and Scotts. Judgment in those earlier proceedings was given by Truss DCJ on 25 May 2007 and an appeal from that judgment to this Court was dismissed: Benton v Scott's Refrigerated Freightways [2008] NSWCA 143. QBE's application was upheld by the primary judge, Balla DCJ. 3. The applicant is correct to observe that the exercise of a power to summarily terminate proceedings, in this case on the basis that they are an abuse of process, must always be attended with caution: per French CJ and Gummow J in Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 at [24]. 4. The four matters relied upon by Mr Benton as disclosing error on the part of the primary judge are set out in the judgment of Ward JA at [56] – [59]. 5. It is not in issue that subsequent proceedings may be dismissed as an abuse of process if they seek to litigate an issue that already has been decided in earlier proceedings. The relevant principles are discussed in Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198 at [28] – [33] per Handley JA (Mason P and Heydon JA agreeing); and Liao v State of New South Wales; Zhang v State of New South Wales [2014] NSWCA 71 at [169] – [172] per Barrett JA (Beazley P agreeing). 6. To give rise to such an abuse of process, the issue propounded by a party in the later proceedings must be one that it propounded and lost in earlier proceedings. Also, it must be one that has to be determined in that party's favour for it to succeed in its claim or defence in the later proceedings. It is in that sense that Handley JA observed in Rippon at [36] that the latter proceedings raise "the prospect of conflicting judgments". The conflict will arise if the party has success on the issue in the latter proceeding. 7. The application of the relevant principles makes it necessary, as Heydon JA noted in R v O'Halloran [2000] NSWCCA 528; 159 FLR 260 at [112], that the precise issues which it is said are sought to be re-litigated be identified. 8. Mr Benton's claim in the proceeding against Scotts was for damages for injuries sustained when he "slipped from a defective step below the cabin on the vehicle [owned by Scotts] and fell to the ground below". Precisely the same claim to damages is pleaded against QBE (as the insurer of Mr Benton's alleged employer, Restaco) in the second proceedings. The particulars of negligence in each are essentially the same. The only change in the language in the later proceedings is to take account of the employer's obligation to exercise reasonable care to ensure that the step was safe to use. 9. The fact that the step was defective is relied upon in each pleading as either constituting or being the product of the relevant negligence of Scotts and Restaco. The issue determined in the Scotts proceeding was whether the top step, which allowed access to the cabin of the prime mover vehicle, was defective either by reason of its design or because it was worn (so that it had insufficient slip-resistant properties at the time of the accident) or damaged (because it had been pushed towards the fuel tank so that the distance between the step and the fuel tank was reduced). 10. Although the particulars of negligence included a number of allegations touching upon the design of the steps, the evidence in the first proceedings indicated that the design of the steps was adequate provided that the top step had sufficient non-slip properties and was a proper distance from the fuel tank. Taking account of that evidence, Mr Benton's case as finally put was that the top step was worn and damaged in the respects described above. Truss DCJ rejected each of those allegations and for that reason concluded that there was no breach of duty. In the appeal to this Court those conclusions of her Honour were not found to be wrong or to have involved any error. 11. The issue as to whether the top step was defective in the ways pleaded arose in the Scotts proceedings irrespective of whether its duty of care was as owner of the prime mover or akin to that owed by his employer. The same factual issue is raised in the QBE proceedings which allege a breach of duty by Restaco as Mr Benton's employer. 12. Turning then to the four matters relied upon by Mr Benton as disclosing error, the first raises the spectre that different factual issues relevant to the question of negligence might be raised in the QBE proceedings. When pressed as to what those issues might be, two were suggested. They were that the steps may have been negligently designed or that there was, in some other unspecified respect, a failure by Restaco to provide a safe system of work. The first of these "different" factual issues was pleaded and determined in the Scotts proceedings. The second was not pleaded or dealt with in those proceedings and is not pleaded in the QBE proceedings. The primary judge was right to ignore it. Her Honour was bound to undertake the analysis as to whether Mr Benton was seeking to re-litigate an issue determined adversely in the first proceedings by reference to the pleadings in the second. No application was made before her to amend those pleadings or the particulars of negligence. 13. The second and third matters raised by the applicant do not grapple with the position being that the factual issue determined in the Scotts proceedings was whether the top step was defective – either by reason of its design or because it was worn or damaged. That was the only basis on which it was alleged that there was a breach of duty by Scotts. It is also the only basis on which it is pleaded that there was a breach of duty by Restaco. It is not to the point that Scotts' duty was said to arise as owner of the vehicle, or as someone in a position akin to that of employer, whereas Restaco's duty is said to arise as employer. Although the parties alleged to have breached a duty of care are not the same, the defect relied upon as establishing those breaches is identical. 14. The fourth matter raised by the applicant misunderstands the sense in which the primary judge, echoing Handley JA in Rippon, concluded that the QBE proceedings "raised the prospect of conflicting judgments". That prospect is necessarily raised by the prosecution of those proceedings because for Mr Benton to succeed he must successfully re-litigate an issue that he lost in the earlier ones. 15. WARD JA: The applicant, Mr Benton, seeks leave to appeal from the summary dismissal of proceedings commenced by him in the District Court on 17 August 2012. In those proceedings, Mr Benton sought damages for injuries sustained at work on 27 October 2003. The respondent, QBE Workers Compensation (NSW) Limited ("QBE"), was joined as the defendant to the District Court proceedings as the workers' compensation insurer in place of Mr Benton's employer, which had by then been deregistered. 16. The basis on which the proceedings were dismissed was that they were an abuse of process, for reasons that I will outline in due course. Leave to appeal is necessary pursuant to s 127 of the District Court Act 1973 (NSW) as the decision was an interlocutory decision, though determinative of the proceedings (see AB v State of New South Wales [2014] NSWCA 243; Macatangay v State of New South Wales (No 2) [2009] NSWCA 272). 17. Mr Benton submits that leave should be granted because he has been denied a hearing of his case against his former employer on its merits and because he contends that the result below is unjust. The matter was listed for concurrent hearing of the leave application and, if that were successful, the appeal. Background 1. Mr Benton worked as a truck driver. Mr Benton's claim was for damages for injuries he claimed he sustained in October 2003 when, during the course of his employment, he was attempting to alight from the cabin of a prime mover, slipped and fell to the ground. First proceedings 1. Mr Benton first commenced proceedings for damages in February 2005 in the District Court against Scotts Refrigerated FreightWays Pty Ltd ("Scotts"). I will refer to these as the first proceedings. 2. The claim pleaded against Scotts was that it was the owner of the prime mover (statement of claim at [1]) and that "[i]n the circumstances" it owed a duty of care to Mr Benton which it had breached (statement of claim at [3]). The only circumstances to which the pleading at [3] can have referred were that Scotts was the owner of the prime mover (as alleged at [1]) and that Mr Benton had slipped "from a defective metal step below the cabin" when attempting to alight therefrom (as alleged at [2]). 3. The particulars of negligence were listed at [3] as: (a) failing to take any or any adequate precautions for Mr Benton's safety; (b) putting him in a position of peril in the circumstances; (c) failing to provide him with a proper and safe step to use to alight from the cabin of the vehicle; (d) providing him with a step which was too narrow safely to accommodate his feet; (e) providing him with a step which was immediately abutting a fuel tank so that the toe of his shoe came up against the fuel tank when descending from the cabin, thereby forcing his foot off the step; (f) failing to provide a step of sufficient width so as to accommodate most of his foot; (g) failing to provide a step which could be seen as he descended from the cabin; and (h) providing a step on the vehicle which was defective in that it was tucked away under the cabin of the vehicle and could not be seen by the driver when descending. The particulars at [3](c)-(h) on their face would appear to raise or at least include issues as to the design of the allegedly defective metal step. 4. Scotts denied negligence. On 6 January 2006, Scotts filed a cross-claim against another company in the Scotts group of companies, Restaco Pty Limited ("Restaco"). In its cross-claim, Scotts claimed an entitlement to an indemnity or contribution in respect of any damages and costs found to be due by Scotts to Mr Benton. The cross-claim pleaded that Restaco was Mr Benton's employer and owed a duty to provide him with a safe place of work and a safe system of work; and that the accident sustained by Mr Benton was as a result of Restaco's breach of its duty to him. 5. Restaco was deregistered on 10 May 2006 and a liquidator was appointed to the company from 11 May 2006. Application could have been made to re-register Restaco and to seek leave for Scotts thereafter to proceed with its cross-claim against the company in liquidation (which course would also have been open to Mr Benton if he had wished to make any claim directly against Restaco at that stage). There is no suggestion that any such course was taken. Presumably, the cross-claim was abandoned since it is apparent that by the time the first proceedings were heard by Truss DCJ in the District Court there was no cross-claim then on foot. However, when the QBE proceedings later came before Balla DCJ, counsel were unable to assist her Honour as to how if at all the cross-claim had been formally disposed of. 6. Truss DCJ heard the first proceedings and entered a verdict in Scotts' favour. In her Honour's reasons for judgment, it was noted that an issue had been raised during the hearing as to the identity of the relevant employer. Her Honour (at [29]) rejected the submission for Mr Benton that there was considerable material to support a finding that Scotts employed Mr Benton at the time of accident but noted that in any event no such allegation was pleaded in the statement of claim; rather, what was alleged in the statement in claim (at [1]) was that Scotts was the owner of the truck. 7. Her Honour did not accept the submission for Mr Benton that this was a "quasi-employment situation" and that Scotts, which had provided the truck Mr Benton was driving, had a non-delegable duty to provide a safe system of work. Her Honour concluded (at [33]) that the nature of the duty which Scotts owed to Mr Benton was, as the owner of a vehicle to the driver, to exercise reasonable care in the use or operation of the vehicle and not the "heightened" or "quasi-employment" duty contended for by Mr Benton. 8. As to the allegation of negligence, her Honour concluded (at [50]) that an inference could not be drawn that the metal step was damaged and/or had a poor quality surface. Her Honour was not persuaded that Scotts was in breach of the duty of care it owed to Mr Benton. 9. Mr Benton then appealed to this Court from her Honour's decision. That appeal was dismissed (Benton v Scott's Refrigerated Freightways [2008] NSWCA 143). 10. Campbell JA, with whom Bell JA (as her Honour then was) and McDougall J agreed, noted (at [4]) that Scotts had conceded it owed a duty to exercise reasonable care in the use or operation of the vehicle and (at [5]) that one issue on the appeal related to whether the primary judge was correct in concluding that Scotts did not owe a "higher" duty akin to the duty owed by an employer to an employee. 11. Campbell JA explained the circumstances in which the issue as to the identity of the employer had arisen and noted that there had been no consensual abandonment of the pleadings by the way that the parties had conducted their case, Scotts having objected at the outset to Mr Benton raising a case that it was Mr Benton's employer (see [44]). 12. At [50], Campbell JA said: In my view it is not necessary to decide who was the actual employer of the Appellant for the purpose of deciding what duty of care the Respondent owed to the Appellant. That is because there is no relevant difference between the duty that the Respondent owed to the Appellant in its capacity as owner of [the truck], and the duty it would owe if it were the employer of the Appellant. 1. That conclusion was reached on the basis that part of the common law duty owed by an employer to its employees to take reasonable care for their safety was an obligation to take reasonable steps to provide safe plant and machinery (Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 at [34], 439) (see [51] of Campbell JA's judgment). Pausing there, Mr Sheldon argues that his Honour's conclusion at [50] was as to the relevant duty that was said to have been breached (whether as owner of the truck or as employer) being the duty that Scotts had conceded, and not the so-called heightened duty for which the parties had contended. In context, however, what was being addressed at [50] was whether Scotts would have owed any different duty to Mr Benton had it been his employer, in circumstances where Mr Benton was arguing that there was a heightened non-delegable duty of care. What this Court found was that there was no relevant difference in the duty. 2. The second main issue raised on appeal was as to the conclusion her Honour had reached that there was no breach of the duty of care owed to Mr Benton. 3. Campbell JA noted that Mr Benton's case as ultimately presented at first instance was that there were two separate deficiencies in the top step: the first being that it was worn, so that it had insufficient slip-resistant property at the time the accident occurred, and the second being that it was damaged through having been pushed towards the fuel tank so that the distance between the step and the fuel tank was reduced (see [22] to [24]). 4. As to the first issue, Campbell JA concluded (at [89]) that it had not been shown that the trial judge's conclusion (that Mr Benton had not shown that the step was worn or otherwise required maintenance or replacement at, or immediately before, the time of his injury) was erroneous. As to the second, his Honour concluded (at [104]) that her Honour was correct in light of all the evidence not to be persuaded that the top step had been damaged in a fashion that reduced the gap between it and the fuel tank. Second proceedings 1. In 2012, Mr Benton commenced the proceedings against QBE that are now the subject of the application before this Court. The same firm of solicitors that had acted for Mr Benton in the unsuccessful first proceedings acted for him in the second set of proceedings (the QBE proceedings). 2. The statement of claim filed in 2012 against QBE is in most material respects identical to that filed in the first proceeding. The only relevant difference is that the pleading against QBE alleges that Restaco was Mr Benton's employer. Thus the proceedings are brought against a party standing in place of the employer, not against a party identified as the owner of the prime mover. 3. The principal allegation, again, is that Mr Benton slipped from a defective metal step below the cabin of the said vehicle and fell to the ground below suffering injury, disability, loss and damage ([9]), though in the QBE pleading it is alleged that this occurred when he was "attending" to alight from the cabin of the vehicle. It is not suggested that there is any material difference in the change of verb. 4. At [10], in similar terms to [3] in the previous pleading, it is alleged that "[i]n the circumstances" Mr Benton's employer (Restaco) was under a duty of care to him, was in breach thereof and was negligent. The circumstances did not go beyond those earlier pleaded apart from the designation of Restaco as the employer. Once again, there was no attempt whatsoever to plead the content of the duty of care or the standard of care that it was alleged was owed to Mr Benton. The particulars of negligence provided at [10](a)-(h), with some immaterial differences in wording, mirror the particulars of negligence which were itemised in the first proceeding. 5. QBE's defence, filed on 28 August 2012, comprised a denial of the allegations of negligence and injury coupled with an allegation of contributory negligence ([6]) and (at [8]) a general invocation of s 151D of the Workers Compensation Act 1987 (NSW), pursuant to which the claim was not maintainable having been commenced outside the 3 year limitation period. 6. Presumably in response to the limitation issue raised in QBE's defence, by notice of motion filed on 18 January 2013 Mr Benton sought an order pursuant to s 151D of the Workers Compensation Act that he be entitled to continue with the court proceedings for damages in respect of the injuries sustained as set out in his statement of claim. 7. That application was apparently not pressed. Rather, Mr Benton amended his notice of motion to seek an order that paragraph 8 of QBE's defence, which raised the limitation issue, be struck out on the grounds that the proceedings had been commenced in time and leave was not required. That motion was heard by Truss DCJ on 16 May 2013 and dismissed on 11 July 2013. 8. Mr Benton then, on 28 February 2014, filed another motion seeking leave to proceed under s 151D of the Workers Compensation Act. That application was apparently later withdrawn. Meanwhile, QBE, by notice of motion filed on 14 March 2014, sought orders that the whole of the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') or, further and in the alternative, that the statement of claim be struck out pursuant to UCPR r 14.28. 9. On 17 April 2014, yet another application for leave to proceed pursuant to s 151D of the Workers Compensation Act was filed by Mr Benton, the determination of which was to await a ruling on QBE's summary dismissal/strike-out motion. 10. QBE's submissions in support of its motion for the proceedings to be dismissed or struck out made clear that the basis of the application was that the commencement of the proceedings was an abuse of process. QBE did not invoke the principles of either issue estoppel or Anshun estoppel. Rather, reliance was placed on Tiufino v Warland [2000] NSWCA 110; (2000) 50 NSWLR 104 ("Tiufino"), which it was noted had been followed by Gibson DCJ in Charafeddine v Morgan [2013] NSWDC 7. In Tiufino, Handley JA, (with whom Mason P and Powell JA agreed) concluded that the defence of issue estoppel had been correctly upheld but went on, in obiter dicta, to say that had he been of a different view he would have held that the maintenance of the proceedings was an abuse of process ([48]). 11. Balla DCJ accepted QBE's submission that the proceedings were an abuse of process and accordingly dismissed them. 12. In her Honour's reasons, her Honour recorded, and rejected, various submissions that had been put to her by Counsel there appearing for Mr Benton (Mr Reimer). 13. First, her Honour referred to a submission that the pleadings did not necessarily limit the factual matters which might be relied upon by Mr Benton at the final hearing and that those might not be the same as those that had been agitated in the first proceedings. Her Honour rejected that submission for two reasons: first, that there was no evidence before her Honour to support that submission, and, second, that the only example given by Counsel was that in the QBE proceedings Mr Benton might rely on the unsatisfactory design of the steps, which her Honour noted was a matter raised but not pursued in the first proceedings where expert evidence had been called. 14. Second, her Honour did not accept the submission that, as the court exercises a discretion whether to strike out or dismiss proceedings under the relevant rules, matters such as the seriousness of Mr Benton's injury and the consequences of his losing the right to make a claim were relevant. Her Honour noted that the question was whether the proceedings were an abuse of process. (No complaint is made as to this part of her Honour's reasons.) 15. Third, her Honour did not accept Mr Reimer's submission that the proceedings were not an abuse of process because the employer owed a different duty of care to the duty owed by the owner of the truck. Her Honour rejected that submission for two reasons: first, because the first proceedings had "determined all of the factual issues against the plaintiff" and in that context the scope of the duty of care was said to be irrelevant; and, second, because this Court had made it clear, in dismissing the appeal from the first proceedings, that there was no relevant difference between the duty owed to Mr Benton by the owner of the truck and the duty that the owner would owe if it were the employer (see [50] of Campbell JA's judgment). 16. Her Honour was satisfied that Mr Benton was seeking to re-litigate matters "already conclusively determined" after full hearings, both in the District Court and in this Court. Her Honour concluded that the proceedings threatened the integrity of the administration of justice and raised the prospect of conflicting judgments. Her Honour accordingly held that the proceedings were an abuse of process. Proposed grounds of appeal 1. The proposed grounds of appeal, as contained in Mr Benton's draft notice of appeal, are that: (1) The primary judge erred in holding that the proceedings were an abuse of process; (2) Her Honour erred in holding that the proceeding constituted an attempt to re-litigate matter already conclusively determined after a full hearing; (3) The primary judge failed to give adequate reasons for holding that the earlier proceedings conclusively determined any issue between the present parties; (4) Her Honour erred in holding that the proceedings were a threat to confidence in the administration of justice; (5) Her Honour erred in failing to provide adequate reasons for the conclusion that the proceedings threatened the integrity of the administration of justice; and (6) Her Honour erred in dismissing the proceedings. Leave 1. The question whether leave should be granted to appeal from her Honour's decision summarily to dismiss the QBE proceeding as an abuse of process requires the Court to consider whether substantial reasons have been shown to warrant appellate review of that decision (Collier v Lancer (No 2) [2013] NSWCA 186 at [7]). 2. Caution is exercised by appellate courts in reviewing interlocutory decisions (see Williams v Director General of the National Parks & Wildlife Services [2002] NSWCA 176 at [36]), particularly where the decision sought to be challenged is a discretionary interlocutory ruling (Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWCA 174 at [6]; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45] ("Micallef"); Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [73]). Even where the decision has final determinative effect, leave to appeal will not be granted in respect of interlocutory decisions where the appeal is bound to fail (Young v Hones (No 2) [2014] NSWCA 338 at [63]). 3. It is not sufficient for Mr Benton to show arguable error in conclusions reached by the primary judge in the exercise of her discretion under UCPR rr 13.4 or 14.28 (Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]). Rather, to succeed in challenging the exercise of that discretion, it is necessary to establish error in the House v The King sense (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5), namely that her Honour made a material error of legal principle; a material error of fact; took into account some irrelevant consideration or failed to take into account or give sufficient weight to a relevant consideration; or that the result was so unreasonable or unjust as to bespeak such an error (see Micallef per Heydon JA, as his Honour then was, at [45]). 4. Senior Counsel for Mr Benton, Mr Sheldon SC, pointed to four matters that he contends disclose error in her Honour's reasons. 5. First, he pointed to the statement that there was no evidence before her Honour to support the submission that the factual matters relied upon in the QBE proceedings might not be the same as those that had been agitated in the first proceedings (see #[47] above). Mr Sheldon submits that this indicates that her Honour misapprehended the nature of the application before her, which was a summary dismissal application not a final hearing. 6. Second, he referred to her Honour's statement that the first proceedings "determined all of the factual issues against the plaintiff" and that the scope of the duty of care was irrelevant (see #[49] above). Mr Sheldon says that the first proceedings were determined on the very narrow, primarily factual, basis as to whether there was a defect in the vehicle. 7. Third, he submitted that her Honour erred in concluding that Mr Benton was seeking to re-litigate matters already conclusively determined against him – an error said to echo the first of those identified above – on the basis that the claim that had been determined against Mr Benton in the first proceedings was different from that sought to be raised in the QBE proceedings. 8. Fourth, Mr Sheldon submitted that her Honour's conclusion that the QBE proceedings "raise[d] the prospect of conflicting judgments" indicated an error in the application of the General Steel test (referring to General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128-9), on the basis that more was required to be shown than simply a "prospect" of conflicting judgments. 9. Mr Sheldon submits that on a summary dismissal application what QBE was required to demonstrate, in effect, was that there was no way that the case could be determined otherwise than in a way that would give rise to conflicting judgments, and hence be an abuse of process, and that the "prospect" of conflicting judgments was not sufficient. Determination 1. The General Steel test that is generally applied on applications for summary dismissal of part or all of proceedings is certainly one that requires that there be a very clear case before proceedings will be summarily dismissed (see also Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 602-3; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942, 945; Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91). What Barwick CJ was referring to, in the oft quoted passage in General Steel at 128-9, was the situation where the ground on which the court was invited to exercise its powers of summary dismissal was lack of a cause of action. 2. Similarly, what was being considered by this Court in Shaw v State of New South Wales [2012] NSWCA 102 (see at [32] per Barrett JA, with whom Beazley JA, as her Honour then was, McColl and Macfarlan JJA and McClellan CJ at CL agreed) was whether the claims in question were so obviously untenable or groundless that there was "a high degree of certainty" that they would fail if allowed to go to trial; and whether that case was one of the "clearest of cases" in which the court would accordingly intervene to prevent the claims being litigated. 3. Here the issue was not whether there was or was not a real question to be tried in the second set of proceedings. The question before the primary judge was whether the QBE proceedings were an abuse of process because what Mr Benton was seeking to do was to re-litigate issues that had already been determined against him in the first proceedings. However, in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, it was made clear that the exercise of powers summarily to terminate proceedings must always be attended with caution, whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or, relevantly for present purposes, on the basis that the action is frivolous or vexatious or an abuse of process (per French CJ and Gummow J at [24]). 4. Mr Sheldon submits that, because this was a summary judgment application, what was required was that her Honour be satisfied that the case advanced on the pleadings was so untenable that Mr Benton could not succeed other than on the basis determined in the first proceedings and hence that what was required was more than that the proceedings raised the "prospect" of conflicting judgments. 5. In that context, Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 ("Rippon") is instructive. 6. In Rippon, proceedings for breach of warranty and misleading and deceptive conduct in the context of a sale of business had been determined in the Supreme Court. The plaintiffs had succeeded on their warranty claims but not on the claims for misleading and deceptive conduct. Those were dismissed on the basis that reliance on the representations as to net profits for the relevant year had not been established. Subsequently, the plaintiffs commenced proceedings in the District Court against the accountants who had prepared the accounts of the business, claiming damages for negligent misrepresentation relating to the net profits of the business in that and other years upon which they claimed they had relied in entering into the sale contract. 7. The accountants' motion for summary dismissal of the proceedings for abuse of process was dismissed in the District Court. Their appeal from that decision was successful. Handley JA noted (at [21]) that the judgment in favour of the vendor on the cause of action for misleading and deceptive conduct created a cause of action estoppel against any claim against the vendor for negligent misrepresentation. There was no suggestion that such an estoppel could be raised by the accountants, who were not party to the earlier proceedings. However, his Honour considered that the fact that the claims against the accountants could (and, his Honour said, perhaps should) have been included in the Supreme Court proceedings emphasised the close connection between the two proceedings and was a relevant factor in considering whether the District Court proceedings were an abuse of process ([24]). 8. Handley JA found (at [28]) that the District Court proceedings were an attempt to litigate or re-litigate issues which were either decided in or barred by the earlier proceedings. The addition of misrepresentation claims other than those upon which the earlier proceedings were based was said to be "mere camouflage"; the fundamental proposition being that the purchasers would have had to prove that they relied upon the net profit representations before any question of reliance on the accountants' expertise could arise. 9. His Honour accepted that there was no question of oppression or unfairness, because the accountants were not parties to the earlier action, but nevertheless considered that the District Court proceedings were such as "to threaten the integrity of the administration of justice and raise the prospect of conflicting judgments" (at [36]). This was because the purchasers would be required to establish reliance on the net profit representations, an issue that had already been determined against them albeit only in relation to one of the years in question. 10. Mr Sheldon refers to what was said by Barrett JA in Liao v New South Wales [2014] NSWCA 71 ("Liao") at [194], namely that: In the end, the question is that identified by Sir Andrew Morritt V-C in Secretary of State For Trade and Industry v Bairstow … in a passage approved by the Privy Council in Calyon v Michailaidis [2009] UKPC 34 at [35]-[36]: it must be shown either that it would be manifestly unfair to the plaintiffs in the second action that the same issues should be re-litigated or that to permit such re-litigation would bring the administration of justice into disrepute. (emphasis as per Mr Sheldon's oral submissions) emphasising the use in that passage of the word "would". 1. In Liao his Honour was considering a very different scenario from that in the present case, namely whether a defendant was engaging in an abuse of process by failing to admit, or by denying, factual propositions which had been determined against it in earlier proceedings brought by a different plaintiff in which the defendant had not mounted a positive defence, the emphasis placed by Mr Sheldon on the use of the word "would" does not assist him. But in any event what his Honour must be understood as saying, in the context of his Honour's earlier reference to Reichel v McGrath (1889) 14 App Cas 665, was that it would bring the administration of justice into disrepute if litigants were to be permitted to re-litigate the same issues that had already been decided in earlier litigation because of the prospect of conflicting judgments to which that would give rise 2. I am not persuaded that her Honour misapprehended the nature of the application that was before her; nor that her Honour erred, as Mr Sheldon contended, in approaching the test to be applied on a summary dismissal application based on an alleged abuse of process. Her Honour addressed the issues that, by reference to the pleadings, were raised for determination on the pleadings. The reference by her Honour to there being no evidence to support the submission that the pleadings did not limit the factual matters that might be relied upon in the second proceedings to those which had been agitated in the first proceedings must be understood in the context that the question before her Honour required consideration of the identity or otherwise between the relevant issues in the respective proceedings. It might more felicitously have been put that there was nothing in the pleadings (Mr Reimer having conceded there were no relevant material differences in the pleadings and particulars) to suggest that new or different factual or legal issues were being raised from those that had already been determined. 3. On the pleadings, the factual issues thrown up in the second set of proceedings were precisely the same as those thrown up by the first. The allegation was that Mr Benton had suffered injury by slipping on a defective metal step. The particulars of negligence raised no new factual issue. Nothing was put before her Honour to suggest that the pleadings raised a new or different factual issue other than the submission from Counsel to the effect that the pleadings "admit of a case involving in the possibilities as to poor design or ergonomics" and that the earlier proceedings "did not deal with other possibilities that are at hand … such as the design of the step or the ergonomic possibilities on the situation in which the plaintiff found himself". Design features were, however, raised as part of the particulars of negligence in the first proceedings and that case was not pursued. 4. What seemed to be argued in this Court was that, if the proceedings were permitted to continue, evidence might be discovered or adduced that would permit a different case in negligence (based, say, on a failure to provide a safe system of work). It was submitted that the particulars of negligence at [10](a) and (b) would be broad enough to encompass such a case; a case of breach by the employer of a general duty of care, not one connected with the use of operation of a motor vehicle per se. 5. However, what was required to be determined on the summary dismissal application was whether, on the pleading as it then stood, Mr Benton was seeking to re-litigate the same factual issues which had already been determined in the first proceedings against Scotts. Mr Sheldon conceded that there was no pleading in the second proceedings of some general overriding duty of care on the part of Mr Benton's employer (T9.40). Nor was such an argument put to the primary judge. What was put to her Honour went only to the design or ergonomic possibilities seemingly raised on the pleadings in the first proceedings. 6. Relevantly, no application was made to her Honour in the course of debate as to the identity between the respective pleadings for leave to amend in order to plead a claim based on breach of a general duty of care that differed from that which had already been considered and decided in the first proceedings. In those circumstances, unsurprisingly, her Honour concluded that what was sought to be litigated based on the QBE pleading was the same as what had been litigated in the first proceedings. 7. There is no basis to the assertion of error in the first or fourth ways put by Mr Sheldon. 8. As to the second and third of the ways in which Mr Sheldon contends that her Honour's reasons disclose error, what is submitted for Mr Benton is that the case against QBE raises different issues from those raised and determined in the first proceeding because the first proceeding was fought on the basis that Scotts was the owner of the vehicle and the relevant duty of care was as to the use and operation of the motor vehicle, whereas the present proceedings involve a general case of negligence that relies on the more general and non-delegable duty of an employer. It is submitted that the first two particulars of negligence (at [10](a) and (b)), notwithstanding that they are framed in identical terms to those in the first proceedings, encompass a breach of duty beyond that considered in the first proceedings. 9. In that regard, it is submitted by Mr Sheldon that the factual allegation pleaded at [9], insofar as it asserts a defective metal step, could be determined against Mr Benton without there necessarily being an adverse conclusion on the general breach of duty. In essence, Mr Sheldon appeared to accept that it might be an abuse of process to re-litigate the question as to whether there was a defective metal step on which Mr Benton slipped but he argues that, even if that were the case, it would not be an abuse of process to re-litigate the allegation of negligence particularised at [10](a) and (b). 10. In written submissions it is said that that the statement of claim in the QBE proceedings "relying as it does upon the relationship of employment, asserts a number of matters by way of negligence stemming from a failure to ensure the safety of the plaintiff with respect to the condition of the vehicle" and that this pleading is to be contrasted with the pleading in the first proceedings in which no allegation of a breach of a duty to ensure a state of affairs was made. It is thus submitted for Mr Benton that a finding in the QBE proceedings that Mr Benton's employer was in breach of a duty to ensure that he had a safe place of work would not undermine the decision that Scotts was not negligent; the two propositions not being coterminous and hence there being no necessary inconsistency between a failure to prove negligence on the part of Scotts and success in a negligence claim against QBE standing in the place of the employer. 11. An immediate difficulty with a submission of that kind (even apart from the fact that, as Mr Sheldon conceded, an issue was sought to be run in the first proceeding that Scotts was in the position of a quasi-employer and owed a heightened duty of the kind owed by an employer) is that the pleadings did not clearly articulate any such general claim of negligence i.e., one that was divorced from the allegation that Mr Benton slipped and fell on a defective metal step. It is not permissible to call in aid the particulars in this regard. As a matter of strict pleading, particulars do not expand or enlarge the pleaded case, as has been made clear in Shanmugaratnam v Strasburger Enterprises (Properties) Pty Ltd [2004] NSWCA 229 (and see also Bruce v Odhams Press Limited [1936] 1 KB 697 at 712-713; Pinson v Lloyds and National Provincial Foreign Bank Limited [1941] 2 KB 72 at 75-76). 12. In any event, this Court has already determined that the scope of the duty of care owed by Scotts, as owner of the truck, was not relevantly different from that which would be owed by the employer; and has therefore already determined, in effect, that there was no negligence established whether the duty owed was as owner of the truck or as Mr Benton's employer. As noted earlier, Mr Sheldon sought to overcome this difficulty by arguing that Campbell JA's conclusion at [50] must be read as relating solely to a duty of care in the use and operation of a motor vehicle, and that the duty alleged in the present case is broader and not so confined. I see no basis for reading down his Honour's reasons in that way. 13. Mr Sheldon argues that a consideration of the factors outlined by Giles CJ Comm D in State Bank of New South Wales v Stenhouse Ltd [1997] Aust Tort Rep 81-423 ("Stenhouse") is strongly suggestive of there being no abuse of process in the present case. Those factors were: (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. 1. In that regard Mr Sheldon argues that: the question whether the employer took reasonable steps to ensure Mr Benton's safety was not an issue in the first proceedings; the factual contentions relevant to the nature and content of the duty asserted against Scotts are necessarily different from those now put; there was no assertion made in the first proceedings of the nature now made as to the extent and content of the duty of care; there is a difference in the nature and significance of the evidence that will be adduced; and that the more onerous duty on the employer means that the same evidence that was previously adduced may nevertheless lead to a finding of breach in the present case. Those submissions do not, however, take into account that what was argued in the first proceedings, and on the first appeal, and ultimately determined against Mr Benton was that (on the same facts as those now pleaded against QBE) there had been a breach of a duty of care akin to that which would have been owed by an employer. 2. As to the sixth of the factors identified in Stenhouse, Mr Sheldon submits that the fact that QBE was not involved in the earlier proceedings "except peripherally and without release by the plaintiff" is a powerful factor tending against the conclusion that now to sue QBE constitutes an abuse of process. It is submitted that such costs as were incurred by QBE in the first proceedings were by reason of QBE's joinder at the instigation of Scotts and not through any action on Mr Benton's part. 3. As Handley JA recognised in Rippon, the fact that the present claim against QBE could have been included in the first proceeding emphasises the close connection between the factual and legal issues in the respective proceedings and is relevant when considering whether the present action was an abuse of process. Moreover, it should be noted that a defence was raised by Scotts in the first proceedings (albeit not adequately pleaded) in reliance on the provisions of s 151Z(2) of the Workers Compensation Act raising the issue as to the respective responsibilities of Scotts and Restaco. Truss DCJ made a determination as to the apportionment of liability as between Scotts and Restaco (that being as to 75%/25% respectively) (see at [106]). Even leaving that aside, the fact that there was no oppression or unfairness in Rippon arising out of the fact that the accountants were not party to the earlier proceedings did not preclude a finding that the proceedings were an abuse of process. 4. Not only am I not persuaded that there was no error in the House v The King sense warranting appellate intervention in the present case, and therefore I have concluded that this is not an appropriate case in which to grant leave to appeal, I am also of the view that her Honour did not err in concluding that the proceedings were an abuse of process in the sense considered in Tiufino and Rippon. Any appeal on that basis would be bound to fail. 5. I should add that insofar as the proposed grounds of appeal make complaint as to the adequacy of her Honour's reasons (grounds 3 and 5) I am not persuaded that there was any failure by her Honour to comply with the duty to provide reasons as explained in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. It is clear that her Honour was considering the identicality of the issues in the respective proceedings and had regard to the basis on which, in Tiufino, the attempt to re-litigate such issues was said to constitute an abuse of process. Her Honour addressed the submissions that had been made on behalf of Mr Benton. Her Honour's conclusion, though briefly stated, makes clear that the basis on which her Honour considered that the proceedings were an abuse of process was that re-litigation of the same issues would raise the prospect of conflicting judgments and thus threaten confidence in the administration of justice. No error was shown in that regard. Conclusion 1. No error in the House v The King sense has been demonstrated in the exercise of the primary judge's discretion under UCPR rr 13.4 and 14.28. It was well open to her Honour to conclude that the proceedings against QBE were an abuse of process in the sense considered in Rippon. I would refuse leave to appeal. Had leave to appeal been granted I would, for the reasons above, have dismissed the appeal. The orders I propose are as follows: 1. Leave to appeal is refused. 2. Applicant to pay the respondent's costs of the proceedings. 1. ADAMSON J: I have had the benefit of reading in draft the reasons and proposed orders of Ward JA. I agree with her Honour's orders for the reasons her Honour gives. Paragraph [2] in the first proceedings, in which the way in which the applicant was injured was alleged, was identical to [9] in the second proceedings. The issue was one of importance since was germane both to breach and to causation. The applicant's proceedings against QBE Workers Compensation (NSW) Ltd are an abuse of process because the applicant seeks to re-litigate an issue on which he was unsuccessful in the proceedings he had earlier brought against Scotts Refridgerated Freightways Pty Ltd: Reichel v McGrath (1889) 14 App Cas 665; Rippon v Chilcotin [2001] NSWCA 142; 53 NSWLR 198. The primary judge was correct to dismiss the proceedings to prevent the abuse of process. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2015