Williams v Callegari[1999] QCA 134

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 6570 of 1998

Brisbane

Before Davies JA

McPherson JA

White J

[Williams v Callegari]

BETWEEN:

JOHN JOSEPH WILLIAMS trading as

J J WILLIAMS & WILLIAMS

(Defendant)

Appellant

AND:

CAMILLO CALLEGARI

(Plaintiff)

Respondent

REASONS FOR JUDGMENT - DAVIES JA

Judgment delivered 20 April 1999

1. This is an appeal from a judgment of a Supreme Court judge in chambers striking out parts of a paragraph in a defence.  The facts relevant to this appeal are as follows.

2. The respondent sued his employer for damages for personal injuries by writ issued 12 May 1987.  The appellant had been the respondent's solicitor in that action up to and including the time when the writ was issued but ceased to act for him shortly thereafter.  The action was dismissed after a trial on 27 February 1997 on the ground that it was statute barred.  In the action damages had been agreed at $203,401.18 and the learned trial judge found that the employer's negligence caused the respondent's injuries.

3. The respondent then instituted the proceedings the subject of this appeal alleging that the appellant failed to issue the writ against his employer until 12 May 1987 causing his claim to become statute barred.  In his statement of claim he alleged the matters contained in the preceding paragraph and also the fact that an appeal to this Court from the judgment dismissing the action against his employer was also dismissed.

4. In paragraph 2 of his defence, the appellant admitted certain matters but did not admit that the respondent's damages were in the sum of $203,401.18 or that his injuries were caused by the negligence of his employer or that the injury occurred more than three years before the issue of the writ.  It was these non admissions which the learned primary judge struck out and it is from the order striking these out that this appeal is brought.

5. The questions were and are whether the appellant is bound in this action by the factual basis for the judgment in the previous action that the action was statute barred, by the finding of negligence against the employer in the previous action and by the agreement in the previous action that the respondent's damages were $203,401.18.  In its reply in this action the respondent pleaded that the appellant was estopped from challenging these matters because they had been judicially determined in the previous action.  Before this Court, however, the respondent did not seek to sustain the judgment striking out these non-admissions on the basis of estoppel but rather on the basis upon which the learned primary judge made his order, namely that the court will not speculate when it knows and that, because of the agreement and findings in the earlier action, the chance which the respondent has lost by reason of the action not having been instituted in time cannot be any different from the findings and agreement in the earlier action.

6. On the other hand the appellant contends that, if he is precluded from contesting negligence because of the finding in the earlier action, quantum because of the agreement in the earlier action or the date on which the respondent's injury occurred, a finding on which was a factual basis for the judgment that the action was statute barred, there will, in effect, be an issue estoppel against him notwithstanding that he was not a party to the earlier action.

7. It may be accepted that the judgment in the action by the respondent against his employer is conclusive as against the appellant, as it is against all the world, that the respondent can no longer recover against that employer in respect of those injuries.  But it is not, in my view, conclusive, as against the appellant, of the facts upon which that judgment is based;  in particular the date on which the respondent sustained his injury.^[1]  That would be so only if there were an issue estoppel.  There can be no issue estoppel here because the present action is not between the same parties, or their privies, as the earlier action.^[2]  But the judgment may be some evidence of the facts on which it is based, in the present case the date on which the respondent sustained his injury.^[3]

8. No doubt the evidence of those facts, if unchanged in this action, is unlikely to lead to a different result.  But there is always the possibility, remote though it may be in this case, that some other evidence may be adduced which was not adduced in the earlier trial which may cast some better light on those facts.

9. There is even less reason for precluding the appellant from contesting negligence and quantum.  As to the first of these, even between the parties to the earlier action, the finding of negligence was made hypothetically;  it was not, even between those parties, necessary as the legal foundation or justification for the conclusion reached.^[4]  But, in any event, there can be no issue estoppel against the appellant who was not a party to the earlier action.

10. As to the second, there was no finding but an agreement between the respondent and another as to the amount of damages in the earlier action.  There is no legal basis on which such an agreement can bind the appellant here.

11. No doubt the evidence on the negligence issue which was before the judge on the previous occasion and the fact of an arm's length agreement between the parties as to the amount of damages will be some evidence on those issues in the present case.  But that cannot preclude the appellant from disputing them.

12. The respondent's argument also makes an assumption which cannot be made on the pleadings.  It is that, in the absence of negligence by the appellant, the respondent's action against his employer would have been heard at the time and place when it was in fact heard;  for the argument assumes that what the respondent has lost by being deprived of his judgment against his employer is the judgment which would have been given in the trial which in fact took place had the limitation point not been decided against him.  That was the basis for the contention that the court knows what the result of an action against the employer, commenced within time, would have been.

13. One other question was argued in this appeal.  It was submitted by the respondent that the appellant's counsel had conceded below that the quantification of the loss of chance which the respondent suffered, if one was suffered, was precisely the damages which would have been awarded in the earlier action but for the limitation point.  An analysis of the transcript of argument below yields no such concession.  All that seems to be conceded was that, if the appellant were not permitted to litigate the issues raised in that part of his defence which was struck out he would be bound by what had happened in the earlier action.  That much was self-evident.  In any event, the question whether the appellant was bound by factual conclusions of the trial judge in the earlier action or the agreement in the earlier action was one of law.

14. I would allow the appeal with costs.  It was submitted by Mr Dutney QC for the respondent that, if we allowed the appeal, the respondent should have a certificate under the Appeal Costs Fund Act 1973 because of the concession made.  For the reasons already given I do not think that is correct.  In addition, as pointed out by Mr Doyle SC for the appellant, the learned trial judge did not found his decision on any such concession.  I would refuse the application.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 6570 of 1998

Brisbane

Before Davies JA

McPherson JA

White J

[Williams v Callegari]

BETWEEN

JOHN JOSEPH WILLIAMS

trading as J J WILLIAMS & WILLIAMS

(Defendant)

Appellant

AND

CAMILLO CALLEGARI

(Plaintiff)

Respondent

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 20 April 1999

1. I agree with the reasons of Davies JA for holding that this appeal should be allowed with costs.

2. To what his Honour has said, I would add only this; that the principal function of provisions like s 4(3) of the Judicature Act 1876 (now s 245(9) of the Supreme Court Act 1995), and those in O3, r11, O17, r4(4) and rr8 and 9, is to provide a means of ensuring that a person not a party to the original action may yet be effectively bound by the result of it, and so precluded from later saying that he was not. See Warner v Turning (1876) 24 WR 536; Watkins Limited v Plancorp No 6 Pty Ltd [1983] 2 QdR 501, 504-505; and also Helicopter Sales Pty Ltd v Roterwork Pty Ltd (1974) 132 CLR 1, 4-5, 14.

3. The quite elaborate procedures provided there would not have been necessary if a person in the position of the defendant in the action would in any event have been bound by the findings or the judgment in the earlier action between the plaintiff and his employer, to which the defendant in the present action was not a party. To this it may, by way of caution, be added that even a party to an action is not necessarily and always bound by a determination made in respect of a particular issue unless he was also a party opposed in respect of that particular issue itself. See FAI Insurance Co Ltd v. Interchase Corporation Limited (Appeal no 4241 of 1997, 14 July 1988).

4. In the earlier action against his employer, the plaintiff made no use of any of these procedures designed to make the decision in that action binding on the defendant in this action. Not having done so, he cannot now claim that the defendant here is bound by what was decided in that action, or is otherwise disqualified from litigating in this action issues that may previously have been determined against the plaintiff or his employer in that action.  That is not to say that findings made in that action would have absolutely no evidentiary weight or value in this, as going to show what might, but for the alleged negligence of the defendant solicitor, have been reasonably expected to be recovered. But it is quite another matter to say that in this action the defendant solicitor is bound by findings made or issues determined in that earlier action to the extent that his defence, or the relevant part of it, now seeking to contest those matters or issues should be struck out.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6570 of 1998

Brisbane

Before  Davies JA

McPherson JA

White J

[Williams v Callegari]

BETWEEN:

JOHN JOSEPH WILLIAMS trading as

J J WILLIAMS & WILLIAMS

(Defendant)

Appellant

AND:

CAMILLO CALLEGARI

(Plaintiff)

Respondent

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 20 April 1999

1. I agree with the reasons of Davies JA for concluding that the appeal should be allowed with costs.

2. I note the observations of McPherson JA concerning the availability of procedures in the Rules to enable persons not original parties to an action to be bound by the outcome of that action. The desirability of seeking to have all persons bound is demonstrated in this case. There were two issues to be determined at the original trial - whether the respondent’s cause of action was statute barred and whether the employer had been negligent. As Davies JA has noted, the issue of quantum had been resolved by agreement between the respondent and his employer.

3. The evidence about the date on which the respondent sustained his injury at work was far from straightforward. The events had taken place 13 years previously. The learned trial judge, observed in his reasons for judgment at R23:

“It is not possible to reach any conclusion which provides a satisfactory factual explanation for the whole evidentiary picture which emerges and in particular the documentation.”

His Honour then assessed the oral evidence, some of which appeared from his reasons for judgment to have been vague and contradictory. He concluded that the respondent had not discharged the onus of proof on the issue of the date of injury. The appellant is not bound by the findings made in that action and may litigate issues decided in that trial. It is possible, though unlikely, that a different line of questioning or further investigations may uncover other material going to the date of injury which would tend to tip the balance the other way. The result may be an unfortunate one for the respondent falling, as it were, between both actions which may have been avoided had the present appellant been made a party to the original action.