Case: Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139
Outcome: considered
was nevertheless submitted on behalf of SMS that the amended statement of claim was a transparent attempt to re-litigate issues which have already been determined against Dr Windsor: '...proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances of the case do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings' ( Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 393). Reference was also made to Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 per Heydon JA at 155 157 [70] [73] and per Foster A-JA at 167 [122] [123] and P. Dawson Nominees v ASIC (No. 2) (2009) 255 ALR 466 at [36] [49]. In response, it was submitted on behalf of Dr Windsor that the principle articulated in Manning , to which I would merely observe, assuming a principle can be identified other than a preference for the view of Charles JA rather than the majority in D A Christie Pty Ltd v Baker (1996) 2 VR 582 , concerned, as did Dawson and Christie , the bringing of a second interlocutory application by an applicant or plaintiff; here, it was pointed out, on both occasions, Dr Windsor was resisting such an application and so, at best, any principle, if it can apply at all, could only be by way of analogy. Next it was said that in Dawson , Goldberg J articulated the principle in terms of a threshold issue (at [49]), in respect of which the applicants carried the onus. Here there was no threshold issue because there was no onus on Dr Windsor. For that reason, any principle coming out of Manning and Dawson is not apt. Third, it was submitted that if, contrary to the foregoing submissions, I was to find that any principle coming out of Manning can apply by way of analogy to the present case, there were four reasons why it was fair and just to reconsider the matter rather than be persuaded that SMS had established the amended statement of claim was an abuse of process. These were put as follows: (1) Dr Windsor was self-represented on the hearing of the 2007 notice of motion. (2) I applied impermissible criteria in deciding the 2007 notice of motion clearly a strike-out application rather than confining myself to the pleadings; had I done the latter, I would have dismissed the 2007 notice of motion. I have already accepted this submission at [12] and [13] above. (3) On the hearing of the 2007 notice of motion, the Court's attention was not drawn to the undecided question of law about whether post-contractual conduct and communications could be used to identify parties to the contract (see Dennis Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 ; (2007) Aust Contract R &#167;90-263 at [59] per Campbell JA (Beazley JA agreeing); Sagacious Procurements Pty Ltd v Symbion Health Ltd (formerly Mayne Group Ltd) [2008] NSWCA 149 at [99] ff per Giles JA (Hodgson and Campbell JJA agreeing); County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [161] per McColl JA), and at least some of the Judgment Documents fall within that category. (4) The fact that on the hearing of the 2007 notice of motion my attention was not drawn to admissions that were relied upon on the hearing of the current motion and, even if I did have regard to them on the earlier occasion, there is no indication on the face of the reasons for judgment that I interacted with them.