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Breckwoldt & Co (NG) Pty Ltd v Gnoyke (No 1) [1974] PNGLR 106 (30 June 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 106 - Breckwoldt & Co. (N.G.) Pty. Ltd. v Gnoyke

[1974] PNGLR 106

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BRECKWOLDT & CO. (N.G.) PTY. LTD.

V

GNOYKE

Port Moresby

Clarkson Prentice Lalor JJ

27 May 1974

29-30 May 1974

30 June 1974

APPEAL - When appeal lies to Full Court - Interlocutory orders - Leave to appeal required - Supreme Court (Full Court) Act 1968, s. 20 (3) (b) (iii)[cxviii]1.

APPEAL - Interference with discretion of primary judge - Wrong principle of law - Stay of proceedings - Two suits standing on same basis but raising distinct causes of action - Same plaintiff - Same defendant - No findings made in first suit - Substantial miscarriage of justice.

PRACTICE AND PROCEDURE - Stay of proceedings - Two suits standing on same basis but raising distinct causes of action - Same plaintiff - Same defendant - No res judicata or issue estoppel.

The appellant/plaintiff brought an action against the respondent for money had and received, alleging therein that the respondent, whilst an employee of the appellant had withdrawn outside the ambit of his authority, certain moneys of the appellant, and had appropriated them to his own use. The respondent’s counterclaim for damages for wrongful dismissal and for an amount said to be due for a bonus was denied. After the hearing of this action was commenced the appellant brought a second action against the respondent seeking a declaration that certain shares bought by the respondent in a rival company should be held on trust for the appellant and damages for breach of contract. On appeal against an order made on summons perpetually staying the second proceedings.

Held

(1)      the application should be treated as one for leave to appeal against an interlocutory order which has not been prescribed under s. 20 (3) (b) (iii) of the Supreme Court (Full Court) Act, 1968 as being in the nature of a final order.

(2)      (Lalor J. dissenting), the situation involving as it did two suits, which though both standing upon the same basis, a contract of service, raised distinct causes of action, involved different claims for relief, and contained differential issues (albeit with some common factual issues) and in which there were no findings yet made, no question of res judicata or issue estoppel had arisen.

(3)      (Lalor J. dissenting), the judge ordering the stay, exercised his discretion upon a wrong principle when he found that the plaintiff was in “breach of the principle referred to in Henderson v. Henderson [1843] EngR 917; (1843) 3 Hare 100, 67 E.R. 319, that it has omitted to bring forward the whole of the case that it ought to have brought forward”, the Henderson case being a case of res judicata or issue estoppel.

(4)      (Lalor J. dissenting), as substantial injustice might well be done if the appellant was prevented from litigating a claim which could not be said to be frivolous, the order to stay the proceedings in the second action should be set aside and the application reheard by the trial judge before completion of the first action.

Test in Australian Coal and Shale Employees’ Federation v. The Commonwealth [1953] HCA 25; (1953), 94 C.L.R. 621 applied.

(Per Prentice J.) The powers given and the duties in regard thereto imposed by s. 4 (6) of the Judicature Act of Queensland are available in the Supreme Court of Papua New Guinea pursuant to s. 10 of the Courts and Laws Adopting Ordinance of 1888.

Appeal

This was an appeal against an order, made on summons by a judge in Chambers, perpetually staying proceedings. Relevant facts relating to the history of the litigation involved appear in the judgment of Prentice J.

Counsel

W. F. Libling, for the appellant/plaintiff.

J. A. Griffin and R. V. Gyles, for the respondent/defendant.

Cur. adv. vult.

30 June 1974

CLARKSON J: This is an application for leave to appeal to the Full Court from an order finally staying this action.

At the hearing rulings on motions to amend the application by adding particulars and to object to the competency of the application were reserved and the whole matter was argued.

The plaintiff company carries on business in Papua New Guinea and the defendant was its Port Moresby manager. The termination of this relationship in February 1973 has led to litigation between the parties consisting of two actions, the first of which has come to trial but is not yet finished and the second of which is the action in which the stay order now under appeal has been made.

In the first action the plaintiff claimed $9,000 as moneys had and received by the defendant for the use of the plaintiff. The particulars refer to a cheque “wrongly drawn” by the defendant on the plaintiff’s bank account for this amount. The defence was merely a denial that the defendant had received any sum for the use of the plaintiff but the plaintiff was content to join issue on it.

At the same time the defendant counterclaimed for damages apparently for wrongful dismissal and for an account of certain bonus moneys payable and for payment thereof. As to the bonus moneys, the counterclaim set up under the employment agreement there was payable to the defendant a bonus “calculated in the central accounts division of the plaintiff in Rabaul, payment of the bonus being permitted after verification and release only”.

The counterclaim then goes on, in effect to concede that the plaintiff has not caused its central accounts division in Rabaul to calculate and verify the proper amount of the bonus which however the defendant says exceeds $9,000.

It will be seen that at that stage of the pleadings it is not clear whether the defendant admits having received $9,000 or any sum from the plaintiff nor, if he did, whether it relates to the bonus which on the taking of the account will, it is alleged, exceed $9,000.

Notwithstanding this situation, the plaintiff proceeded to plead to the counterclaim. It alleged breaches by the defendant of implied and express terms of the agreement and it may be inferred that those breaches are said to justify termination of the contract by the plaintiff although I note that it is denied that the defendant was dismissed by the plaintiff.

The defendant joined the issue with the defence to the counterclaim.

I do not wish to comment unnecessarily on the inadequacy of the pleadings in the first action, the trial of which is, we are told, almost completed but I have found it necessary to say what I have because it is necessary for us to identify the issues in the first action. I think it appears clear enough that there is a claim for $9,000 for moneys had and received and a counterclaim for damages for breach of contract and that both claim and counterclaim are denied.

On 22nd February, 1964, the plaintiff pursuant to order amended its defence to the counterclaim in the first action to allege, inter alia, that the defendant wrongfully and in breach of his contract obtained and negotiated a benefit for himself “which was in the scope of his work ...”. Three days later the plaintiff issued the writ in the second action claiming, inter alia, a declaration that certain shares in Pacific Frozen Foods Pty. Ltd. held by the defendant are held upon trust for the plaintiff. The hearing of the first action had already commenced on 20th February. No application has been made by the plaintiff to amend the statement of claim in the first action by adding the causes of action alleged in the second and it is of little use for us to speculate why the plaintiff and its advisers have adopted the course they have.

The defendant then applied to stay proceedings in the second action on the grounds that they were vexatious and oppressive and otherwise constitute an abuse of this Court’s process.

The defendant’s affidavit in support of the motion set up two grounds in support. The first was that certain evidence already given in the first action taken in conjunction with the fact that the plaintiff did not in the first action claim the relief sought in the second action demonstrated that the proceedings in the second action “have been issued for the purpose of intimidation and not for the purpose of vindicating any legal right”.

Secondly it was said that the evidence given in the first action demonstrated that the plaintiff had “no chance of success in the present proceedings.”

If I may say so, and I say it with great respect, it is unfortunate that the motion was not brought on before the judge trying the first action who was familiar with the case and who was in a position if he thought such a course would further the interests of justice to order amendment of pleadings in the first action, adjournment of the hearing of the first action or consolidation of the two actions or any appropriate stay.

However, the application was brought on before another judge and the grounds then set up in support of the motion were that the plaintiff was splitting his claim for relief, that the second action was brought for an ulterior motive and that the statement of claim disclosed no cause of action.

Apparently neither the second nor third ground was pursued for the primary judge does not refer to either of them but states, “The principle relied on is stated by Wigram V.C. in Henderson’s case, quoted at [1947] 2 All E.R. 258” which is clearly a reference to the first ground.

The gist of his decision is contained in the following paragraphs —”It is true that the earlier proceedings started as proceedings for money had and received, but when the defendant counterclaimed, the plaintiff decided to defend himself by setting up breaches of contract including the very breaches on which substantive relief is now sought. The plaintiff knew of these facts in February 1973 and certainly before May 1973 when the first action was brought. It is said that the facts were not known to the lawyers, because there had been a change of solicitors. But the party himself had knowledge of the facts. At that stage the plaintiff was aware of the breaches of contract it decided to set up and whether by negligence or accident it omitted to apply to the judge to include the substantive relief which it was entitled to if it succeeded in its defence.

In then deciding to sue in this Court in another case, the plaintiff is in breach of the principle referred to in Henderson’s case, that is it has omitted to bring forward the whole of the case that it might have brought forward.”

Before examining this conclusion it is necessary to look at the function this Court has to perform.

The order under attack is an order that the action be finally stayed. It does not appear to be the equivalent of a judgment, a discontinuance or a dismissal. Being merely a stay it is potentially capable of being removed. Some stays are clearly temporary. I accept the following as a fair general statement of the position.

“In some cases the restriction is clearly intended to be only temporary or to be conditional; in other cases the restriction may well be permanent, the effect of the stay being to bring to an end the entire proceedings, as when an action is stayed on the ground that it is frivolous or vexatious. It is necessary to look at all the circumstances and the form in which the stay is ordered to determine whether the restriction imposed thereby is intended to be permanent in the sense that no proper grounds can possibly be adduced to justify a removal of the stay”. (8 Atkins Court Forms (2nd ed.) p. 154).

It seems to me that the stay here was intended to be irremovable and this is the view adopted by the respondent’s counsel who described it as a euphemism for a dismissal. No liberty to apply to vary the order is reserved and it operates into the indefinite future. Whilst the practice is to treat such an order as interlocutory for the purposes of determining whether an appeal lies of right (Hunt v. Allied Bakeries, Ltd.[cxix]² Tampion v. Anderson & Another (No. 2)[cxx]³ it should not be forgotten that it has characteristics of a final order.

However for reasons I discuss later I do not think anything turns on the distinction here and I treat the application as one for leave to appeal against an interlocutory order which has not been prescribed under s. 20 (3) (b) (iii) of the Supreme Court (Full Court) Act as being in the nature of a final order.

The Rules of Court contain a number of provisions for a stay of proceedings. See for example, O. 22 r. 31 (pleading discloses no cause of action or defence or is frivolous or vexatious), O. 33 r. 20 (pending security) and O. 59 r. 7 (interpleader proceedings).

In addition O. 60 deals generally with staying proceedings. It is possible that O. 60 does nothing more than provide machinery for regulating the procedure and that the power to impose a stay must be found elsewhere but even if this is so, undoubtedly the court has an inherent jurisdiction to stay an action which is frivolous or vexatious or an abuse of its process.

Here, no pleadings had been delivered, although the appellant produced to the primary judge a proposed statement of claim which is before us and which indicates the nature of its action. In these circumstances it is reasonable to conclude that the primary judge in staying the action relied on the court’s inherent jurisdiction to order the final stay. See Dey v. Victorian Railways Commissioners[cxxi]⁴ per Williams J.

In that case, an important point of law was disposed of after full argument by the action being dismissed as vexatious. In the High Court, a majority of the court (Rich, Dixon and Williams JJ.) did not approve of the procedure followed and Dixon J. (as he then was) said, in effect, that it was not available. He said that once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process (at p. 91). See also cases referred to at pp. 91 and 92.

In Cox v. Journeaux (No. 2)[cxxii]⁵ the same learned Justice said, “The inherent jurisdiction of the Court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff. The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustices upon the opposite party that a suit should be stopped. But the Court is not concluded by the manner in which the litigant formulates his case in his pleadings. It may consider the undisputed facts.”

In that case, the action was found to be “clearly hopeless” and was stayed forever.

The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees’ Union v. The Commonwealth[cxxiii]⁶ “... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgments is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”.

In the present case, there has been no examination of the facts and law involved from which it can be said the action is hopeless. The allegation that the action was brought for some ulterior purpose has not been pursued and if the substance of the proposed statement of claim could be established, and for present purposes it should be assumed that it could, the appellant might well be entitled to relief of the nature claimed.

The present decision appears to rest solely on the basis that in the circumstances I have described, the plaintiff, instead of attempting to amend his statement of claim in the first action to add the additional claims, commenced the second action. Of this, the primary judge says, “In then deciding to sue in this Court in another case, the plaintiff is in breach of the principle referred to in Henderson’s case, that is, it has omitted to bring forward the whole of the case that it might have brought forward”.

On the information before us no one could usefully contend that all the plaintiff’s claims arising from its contract with the defendant could not have been brought together in the one action, but the question which arises is whether having failed to do so the plaintiff should be prevented from litigating the latter claims in a second action whether or not an application at this stage to add the claims in the first action could succeed.

No question of res judicata or issue estoppel yet arises and if the second action were to come to a separate trial, the court hearing it and able to assess the extent to which costs have been thrown away has control over the costs of that action.

In Henderson’s case there was a claim in Newfoundland by the next of kin of the deceased against A, the brother of the deceased for an account of the estate of his father, an account of the estate of the deceased held by A, an account of the partnership transactions and an account of A’s dealings with the deceased’s estate after the death of the latter. No account between A and the deceased was given but a decree was made against A for payment of moneys due on other accounts. When the amount due was sued for in England, A sought to show that moneys were due to him by the deceased on account of the partnership and of private dealings. He was not permitted to do so. Wigram V.C. said of the Newfoundland proceedings that the decree was “to compute what was due to the plaintiff for principal and interest; that is upon all accounts in question in the pleadings, including the partnership and private accounts”.

The Vice-Chancellor said that “Where a given matter becomes the subject of litigation in and of adjudication by a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest but which was not brought forward ...” But it seems clear that the reference there is to matters affecting the various accounts all of which were “in question in the pleadings” and adjudicated on.

The argument under consideration concerned what was then referred to as res judicata. Indeed the Vice-Chancellor went on to say, “The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment but to every point which reasonable diligence might have brought forward at the time....”

That language referring as it does to the doctrine of res judicata must be read in the light of the circumstances to which it referred and those included the fact that there had been an adjudication on all the accounts, one or more of which the plaintiff in the suit in England sought to reopen.

That Henderson is a case of res judicata or issue estoppel is, I think, made clear by Hoystead v. Taxation Commissioner[cxxiv]⁷ and Fidelitas Shipping v. V/O Exportchleb[cxxv]⁸.

I note also the New Zealand decision Thompson & Another v. Taylor[cxxvi]⁹. There, the plaintiff having failed in an action based on an allegation of a verbal collateral warranty made prior to contract brought a second action based on a warranty said to be contained in the written contract. Callan J. said “In the leading case Henderson v. Henderson Wigram V.C. pointed out that the plea of “res judicata” applied not only to points upon which the court was required by the parties to form an opinion and to pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the time. But neither the application of that principle in Henderson v. Henderson, nor the general effect of the decisions, appears to go so far as to justify a ruling that the allegation of a written warranty in the contract was a point which “properly belonged to the subject of ‘litigation’ on the earlier occasion. The subject of litigation on that occasion was verbal representation during the negotiations preceding the contract.

It might have been more convenient to all parties if this question of alleged written warranty in the document had been raised by the pleadings and litigated in the earlier action. But I have not been referred to any case in which a plaintiff has been prevented from raising in a second action a new cause of action which arises out of the same transaction as gave rise to the earlier litigation and could have been raised on that occasion had the pleadings been drawn so as to raise it, but was not then raised, nor were facts upon which it must be based then passed upon”.

This case is distinguishable upon the facts but if the same general approach is applied here it will be seen that the subject of litigation in the first action was initially a claim by the plaintiff against the defendant for moneys had and received. It was enlarged by the counterclaim to include a claim by the defendant against the plaintiff for damages for breach of contract and for an account. It is true that all the disputes between the parties followed the creation of a contractual relationship between them but this fact in my view does not justify the ruling at this stage that the plaintiff’s further claims for relief including that the defendant as the registered proprietor of certain shares acquired during his service holds them as trustee for the plaintiff must be litigated in the first action or not at all.

There is a real chance that with the hearing virtually completed the trial judge hearing the first action may not now allow an amendment which involves adding fresh claims to the statement of claim. There is also the real chance that the determination of issues in the first action may give rise to estoppels which greatly reduce the issues to be determined in the second action. Whatever eventuates, the court trying the second action will use its discretion as to costs to do substantial justice. On the information before the primary judge this seems to me to be a case where to stay the second action may result in injustice to the plaintiff and to allow it to proceed does not give rise to any hardship on the defendant which cannot be substantially met by an appropriate costs order.

In the present case, no claim for relief raised by the plaintiff in the second action has been raised in the first, nor has any issue, in the sense of a decision as to the legal consequences of particular facts (Diplock L.J.) Fidelitas Shipping v. V/O Exportchleb[cxxvii]¹⁰ yet been determined in the first action. In my respectful opinion Henderson’s case has no application in the present circumstances.

Applying the test propounded by Kitto J. in Australian Coal and Shale Employees’ Union v. The Commonwealth[cxxviii]¹¹ to which I have referred, I conclude that the primary judge exercised his discretion on a misapprehension of the relevant law and that it is therefore open to this Court to interfere if it thinks fit by granting leave to appeal and allowing the appeal.

The appellant did not support its application by reference to any particular considerations which might influence the court to grant leave and ordinarily this naturally diminishes the prospects of the application being successful. Nevertheless, this seems to be a case where leave to appeal should be given. Whilst the order is strictly interlocutory its effect is final in this action. If the trial judge in the first action which is virtually completed were to refuse leave to amend by adding the additional claims made in the second action the effect of the order is to deprive a plaintiff with an apparently bona fide claim of any opportunity to have it heard at all even on terms. Such an order would justify close consideration at any time, but when it is based on what I believe to be a misapprehension of the relevant principle I think leave should be granted.

For these reasons I would grant leave and allow the appeal.

Before indicating the nature of the orders which I think should be made there are two further matters to be mentioned.

The appellant’s counsel was curiously reluctant to particularize the grounds of appeal to show in what way it was said the primary judge erred in law. These particulars were given however on the second occasion on which the application came before the court and although the formal amendment was not asked for until later this delay did not, after the first day, prolong the hearing.

I would allow the amendment to the application for leave to appeal by adding the particulars supplied.

The objection that the application for leave to appeal was not competent because of the absence of particulars should be disallowed. The particulars were eventually given but in any event in my view their omission was an irregularity not going to competence.

The stay having been removed, the application for it should be referred to the judge hearing the first action who can then control the determination of all issues outstanding between the parties in both actions.

The application for leave to appeal should be granted, the appeal allowed and the order for a final stay set aside and the application for the stay transferred to the list of the judge hearing action No. 284 of 1973.

PRENTICE J: On 16th May, 1973, the appellant brought an action for money had and received against the respondent. It was therein alleged that the respondent, while an employee of the appellant, had withdrawn, outside the ambit of his authority, certain moneys of the appellant, and had appropriated them to his own use.

To this action the respondent, as defendant, counterclaimed for damages for wrongful dismissal, and for an amount said to be due for a bonus.

The appellant in a defence to the counterclaim, justified his right to dismiss the respondent and to cancel his right to a bonus; alleging breaches of employment duties and in effect that he had taken up shares in a rival company.

The hearing of this matter commenced before Raine J. on 20th February, 1974. A second writ was issued by the appellant against the respondent on 25th February, 1974, seeking a declaration that certain shares brought by the respondent in the aforementioned rival company were to be held on trust for the appellant, and damages for breach of contract.

By summons of 4th March, 1974, the respondent moved for a stay of the second proceedings, alleging they were vexatious, oppressive and an abuse of the process of the Court; in apparent reliance upon O. 60, r. 2 of the Supreme Court Rules.

The matter coming on for hearing on 7th March, 1974, before another judge, an order was then made which is transmuted into the record as a perpetual stay of the second action commenced on 25th February, 1974. An appeal is brought to this Court against the order of stay thus made in Chambers.

During argument on the hearing of this application, the appellant handed up to the Court a statement of claim then proposed to be delivered in the second action. Therein, in addition to a declaration of trust as to the shares, and damages for breach of contract, the appellant proposed to seek an injunction to restrain breach of covenant and damages under certain other heads. But before this Court, the appellant has indicated that it wishes to substitute yet another statement of claim.

Up until that point of time when this Court adjourned to consider its decision, the action before Raine J. remained uncompleted; and it appeared that no application had been made to amend the pleadings in that action so as to incorporate the claim struck out by the judge in chambers.

Argument was addressed this Court as to the competence of the appeal, in opposition of the amendment of particulars sought to be made and against leave to appeal being granted.

I am of the opinion that the initial objection to the competence of this appeal should be disallowed; as I would consider the failure to comply with r. 8 (2) and (3), an irregularity rather than essential matter the absence of which would nullify the appeal. I would allow the application for leave to add the particulars ultimately, though reluctantly filed; as I do not find the respondent to have been embarrassed thereby.

Appellate courts are not notoriously enthusiastic about allowing leave to appeal against interlocutory orders. Leave of this Court is, in Papua New Guinea, required under s. 20 (3) of the Supreme Court (Full Court) Act—pursuant to which no prescription has yet been made. Should an application even yet be made to amend the pleading in the first case and refused by the trial judge in the exercise of his discretion, and having regard to the tardiness of such an application; the order appealed from would seem to be in the nature of a final order. Having regard to this aspect, and the by no means inconsiderable subject matter involved, I would be prepared, with some doubt, to grant leave that this application be entertained.

In granting a stay, presumably in the exercise of the inherent jurisdiction of the court, his Honour the Chamber Judge, stated as his sole reason, that the principle in Henderson’s case[cxxix]¹² was applicable and that he could see no reason why the defendant should not be given the relief to which he was entitled. The breach of the principle in Henderson’s case[cxxx]¹³ was seen to lie in the plaintiff’s omission to bring forward the whole of the case that it might have brought forward. It will be seen that his Honour did not expressly state whether he found the second action vexatious, oppressive or an abuse of the process of the court.

That all grievances between individuals arising out of one set of facts should, except for reasons of special difficulty or convenience, be dealt with in one action; seems to have been seen as a prominent object of Judicature Act systems and Rules of Court made thereunder. The principle of nemo bis vexari debet pro eadem causa, can be enforced by orders of stay, consolidation of suits, and as to costs. With respect, I am of the opinion that it is a great pity that the application for a stay was not brought before the judge already seized of the first action. In view of the costs that would potentially be at risk, it would have been desirable, to put it at the lowest, that all grievances should have been dealt with together. And an appropriate order as to consolidation or amendment and as to costs could have been made.

No case has been cited to the Court and I have been unable to discover any where the defendant has been forced (by an order of stay of proceedings) to raise as a cross action to a principal claim, matter which he could use to ground a separate claim on his own behalf. (However, one assumes there must have been many under the Judicature Act system.) The defendant here seeks to go further as I see it, by forcing the plaintiff in effect to raise in his defence to the counterclaim matter which he wished to litigate separately. It is said the matters he did raise by way of a shield to the counterclaim, at least overlapped those he sought to raise as a weapon in the second action. The decision of Callan J. in Thompson v. Taylor & Ross[cxxxi]¹⁴ indicates there is a dearth of instances where actions have been stayed in cases other than where it could be shown that res judicata arose. If one can assume the temerity to attempt in the late twentieth century to understand the mid nineteenth century Chancery procedures, one would think I view Henderson’s case[cxxxii]¹⁵ as one involving res judicata. The Vice-Chancellor Sir James Wigram seems to have held specifically in that case, that all the matters of account and cross account between the parties, were raised and open to be settled in the first proceedings in which judgment had been given. I understand this to be the basis of his decision from his words: “Now undoubtedly the whole of the case made by this bill might have been adjudicated upon in the suit in Newfoundland, because it was of the very substance of the case there, and prima facie, therefore, the whole is settled.”

The instant situation involves two suits of the applicant, which though both standing upon the same basis, a contract of service, appeared to me to raise distinct causes of action, involved different claims for relief, and contained differential issues (though there appear to be some factual issues common to both) upon none of which there is yet a finding. Taking as I do, Henderson v. Henderson[cxxxiii]¹⁶ as a statement of the law in regard to the doctrine of res judicata (in which were stated rules of general policy which later became enshrined in the rules and practice devised under the Judicature Act); I understand, with the greatest respect, the judge in chambers to have exercised his discretion upon a wrong principle in finding “the plaintiff is in breach of the principle referred to in Henderson’s case, that is, it has omitted to bring forward the whole of the case that it ought to have brought forward.” I understand in addition that substantial injustice might well be done if the applicant were shut out from litigating a claim which cannot be said to be frivolous. It is therefore open to this Court I think, to set aside the order for stay of proceedings (Kitto J. in Australian Coal and Shale Employees’ Federation v. The Commonwealth[cxxxiv]¹⁷). It becomes necessary then I consider to look at whether other bases exist upon which the primary judge’s order may be supported (Marks v. Jolly[cxxxv]¹⁸).

The locus classicus as to the exercise of the inherent jurisdiction of courts to stay proceedings, is the dictum of Dixon J. (as he then was) in Cox v. Journeaux (No. 2)[cxxxvi]¹⁹, a case in which a stay of a “hopeless case” was granted. His Honour said at p. 720: “The inherent jurisdiction of the Court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff. The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.” Isaacs J. in Burton v. President & Council of the Shire of Bairnsdale[cxxxvii]²⁰ cautioned that great care must be observed in the application of the inherent jurisdiction to stay. He cited the following passage from Haggard v. Pelicier Freres[cxxxviii]²¹: “Their Lordships hold it to be settled that a Court of competent jurisdiction has inherent power to prevent abuse of its process, by staying or dismissing, without proof, actions which it holds to be vexatious. In Metropolitan Bank v. Pooley (10 App. Cas. 210 at p. 214) the Lord Chancellor (the Earl of Selborne), speaking with reference to the dismissal of an action on that ground, said that:—‘The power seemed to be inherent in the jurisdiction of every Court of Justice to protect itself from the abuse of its own procedure.’ The same principle was again laid down by the House of Lords in Lawrance v. Norreys (15 App. Cas. 210). In that case the Appeal Court had refused to allow proof and dismissed the action, and Lord Herschell observed: ‘It cannot be doubted that the Court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the Court. It is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases’.” Lord Watson for the Privy Council in Haggard’s case[cxxxix]²² went on: “In the remarks made by Lord Herschell, as to the caution with which the power of summary dismissal on such grounds ought to be exercised, their Lordships unhesitatingly concur.”

In a somewhat different context, that of controlling multiplicity of suits as between foreign and English courts, the House of Lords recently considered the principles applicable in cases of that sort to the exercise of the court’s jurisdiction to stay. In the Atlantic Star[cxl]²³ Lord Morris cited the well-known passage from the judgment of Scott L.J. in St. Pierre v. South American Stores (Gath and Chaves) Ltd.[cxli]²⁴: “The true rule about a stay under s. 41, so far as relevant to this case, may, I think, be stated thus: (1) A mere balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of prosecuting his action in an English court if it is otherwise properly brought. The right of access to the King’s Court must not be lightly refused. (2) In order to justify a stay two conditions must be satisfied, one positive and the other negative: (a) The defendant must satisfy the court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of the process of the court in some other way; and (b) The stay must not cause an injustice to the plaintiff. On both the burden of proof is on the defendant.”

Lord Wilberforce therein, referring to Scott L.J.’s above quoted statement said: “There is a danger, as with all clear propositions, of this receiving quasi-statutory force, and of the key words ‘oppressive’ and ‘vexatious’ being too rigidly construed and applied. I do not think that these are technical words: they can only be understood against an evolutionary background.” Having reviewed this background, Lord Wilberforce continued: “This clear and emphatic statement has proved its usefulness over the years. It has been applied by judges without difficulty, to a large variety of cases. I should be most reluctant, even if I were capable, of replacing it by some wider and more general principle. But too close and rigid an application of it may defeat the spirit which lies behind it. And this is particularly true of the words ‘oppressive’, and ‘vexatious’. These words are not statutory words: as I hope to have shown from earlier cases, they are descriptive words which illustrate but do not confine the courts’ general jurisdiction. They are pointers rather than boundary marks. They are capable of a strict, or technical application; conversely, if this House thinks fit, as I think they should, they can in the future be interpreted more liberally. In my opinion, the passage cited embodies the following principles—all of which have been discussed in earlier authorities. First, a plaintiff should not lightly be denied the right to sue in an English court, if jurisdiction is properly founded. The right is not absolute. The courts are open, even to actions between foreigners, relating to foreign matters. But they retain a residual power to stay their proceedings ... Secondly, in considering whether a stay should be granted the court must take into account (i) Any advantage to the plaintiff; (ii) Any disadvantage to the defendant: this is the critical equation, and in some cases it will be a difficult one to establish. Generally, this is done by an instinctive process—that is what discretion, in its essence, is. But there are perhaps some elements which it is possible to disengage and make explicit. In the first place, I do not think it would be right to say that any advantage to the plaintiff is sufficient to prevent a defendant from obtaining a stay. The cases say that the advantage must not be ‘fanciful’—that a ‘substantial advantage’ is enough ... A bona fide advantage to a plaintiff is a solid weight in the scale, often a decisive weight, but not always so.

Then the disadvantage to the defendant: to be taken into account at all this must be serious, more than mere disadvantage of multiple suits; to prevail against the plaintiff’s advantage, still more substantial—how much more depending how great the latter may be. The words ‘oppressive’ or ‘vexatious’ point this up as indicative of the degree and character of the prejudice that must be shown. I think too that there must be a relative element in assessing both advantage and disadvantage—relative to the individual circumstances of the plaintiff and defendant.” (The italics are mine.)

Section 4 (6) of the Judicature Act of Queensland (40 Vic. 6) contains provisions similar to those previously existing under 36 & 37 Vic. c. 66 s. 100 (U.K.)—now replaced by s. 41 Supreme Court of Judicature (Consolidation) Act 1925 (U.K.), which was under consideration in the Atlantic Star[cxlii]²⁵. It is in the following terms: “The said Court or any judge thereof may direct a stay of proceedings in any cause or matter pending before it if the Court or judge shall think fit and any person whether a party or not to any such cause or matter who would have been entitled if this Act had not passed to apply to the said Court to restrain the prosecution thereof or who may be entitled to enforce by attachment or otherwise any judgment decree rule or order contrary to which all or any part of the proceedings in such cause or matter may have been taken shall be at liberty to apply to the Court or a judge by motion in a summary way for a stay of proceedings in such cause or matter either generally or so far as may be necessary for the purposes of justice and the Court or judge shall thereupon make such order as shall be just.”

Section 4 (8) of the same statute provides: “The said Court and every judge thereof in the exercise of the jurisdiction conferred by this Act in every cause or matter pending before them respectively shall have power to grant and shall grant either absolutely or on such reasonable terms and conditions as to them shall seem just all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter so that as far as possible all matters so in controversy between the said parties respectively may be completely and finally determined and all multiplicity of legal proceedings concerning any of such matters avoided.”

This matter like many others in this case which it has been necessary for the court itself to canvass, has not been the subject of submissions by counsel and as far as I have been able to discover, no decision exists in regard thereto; but it seems to me that the powers given and duties in regard thereto imposed, by the Judicature Act of Queensland are available to this Court. Such an effect would seem to have been worked by s. 10 of the Courts and Laws Adopting Ordinance of 1888.

Once a matter had been raised by appropriate process, then, it seems the court would have powers and duties to be exercised not only by virtue of the inherent power as controlled by O. 60, r. 2; but also under s. 4 (6) and (8). Whether the primary judge had sufficient material before him to justify a stay, or a consolidation or some order as to costs, on a ground other than that taken by his Honour, cannot I think be properly decided by this Court; which has not had the advantage of those submissions of counsel which his Honour had, nor those appropriate to the subsections I have mentioned. But nevertheless, these matters, in my judgment, remain open.

On the facts disclosed in argument before this Court it seems to me highly desirable, perhaps compelling, that all the matters in issue between the parties be dealt with by the one tribunal which hears once and for all the witnesses. For my part I consider the application for a stay should be sent to the judge currently hearing the first matter, who is Raine J.; to the intent that his Honour deal with the matter afresh. It would thereon be open to his Honour to invite the applicant to decide whether he wished to amend his pleadings in that action, in which case a stay could be granted in the second action. On the other hand he could order a consolidation of the suits, and make an appropriate order as to costs. Some other form of order which would ensure that “all matters in controversy between the same parties respectively may be completely and finally determined and all multiplicity of legal proceeding concerning any of such matters be avoided”, might be made if appropriate. He could of course, if at that time satisfied that the applicant’s attitude was in some way intransigent and amounted to an attempt to oppress or vex the defendant or to abuse the process of the court, make a stay of the second proceeding.

For the reasons therefore set out above, I would allow the appeal and suggest that this Court should set aside the order for stay and direct that the application for a stay be reheard by Raine J., before the completion of his hearing of the earlier matter.

LALOR J: [His Honour set out the facts of the previous litigation and continued:]

The court heard argument on the substance of the application for leave, the objection to competency and the application to amend and reserved its decision.

Before considering the merits of the application it may be advantageous to restate the principles upon which an application for leave to appeal against an interlocutory order is decided.

The present application for leave to appeal against an order staying an action as vexatious is an appeal against an interlocutory not a final order. See Roberts v. Roberts & Others[cxliii]²⁶; Hunt v. Allied Bakeries, Ltd.[cxliv]²⁷.

Section 20 (3) (b) of the Supreme Court (Full Court) Ordinance 1966 provides that no appeal lies to the Full Court without leave of the judge or of the Full Court from an interlocutory judgment made or given by a judge except for certain specified exceptions.

The intention of the legislation is clearly to “cut down these appeals from interlocutory orders as much as possible”, Perry v. Smith[cxlv]²⁸. The reason for this is, as said by the High Court in Ex parte Bucknell[cxlvi]²⁹:

“In the case of judgments and orders from which an appeal would lie as of right, if they were final, the leave of a court is made necessary if they be interlocutory, in order to check appeals which will not result in final determinations of the parties’ rights.”

Prima facie, then, there is a presumption against appeals from interlocutory orders and it is for the applicant to show reasons why leave should be granted, (Ex parte Bucknell[cxlvii]³⁰).

The nature of the onus on the applicant has been twice considered by the Victorian Full Court when, after a consideration of the English authorities, in Perry v. Smith[cxlviii]³¹, it was held:

“The cases cited to us seem to show that the onus lies on the party who applies for that leave to satisfy the Court of Appeal that the decision of the primary judge was wrong, and in addition to that he has to satisfy the court that substantial injustice will be done by leaving the erroneous decision unreversed.”

Reaffirmed Darrel Lea (Vic.) Pty. Ltd. v. Union Assurance Society of Australia Ltd.[cxlix]³². I would with respect adopt this statement of the law noting only that the degree of satisfaction that the primary judge was wrong which must be established is that of a prima facie case; cf. Dixon C.J., Duncombe v. Porter[cl]³³.

Turning now to the case for the applicant, the amended particulars of the alleged error in law are as follows:

“That the learned Acting Chief Justice erred in law.

Particulars whereof are that the learned Acting Chief Justice based the exercise of his discretion to indefinitely stay this action on the principles of Henderson v. Henderson[cli]³⁴, as quoted by Somervell. L.J. in Greenhalgh v. Mallard[clii]³⁵, whereas as a matter of law these principles:

(i)       do not justify an indefinite stay if an action is brought for a different cause of action from that in another litigation in the same jurisdiction between the same parties, and there are facts necessary to be proven to found the second action which were not necessary to be proven to found the first action

(ii)      do not justify an indefinite stay of an action merely because some of the facts relied on by the plaintiff to found his cause of action were before relied on by the plaintiff as constituting a defence to a counterclaim by the defendant in a previous action between the same parties in the same jurisdiction.”

In short, the applicant says that the principles of Henderson v. Henderson[cliii]³⁶, do not establish res judicata where there are two distinct causes of action not proven by identical facts nor merely because some of the facts pleaded by the plaintiff in the second action were relied upon by him by way of defence to the defendant’s counterclaim in the first action, as was the case in these actions.

The respondent on the other hand submitted that the applicant had not shown any grounds upon which the court could properly grant leave to appeal. And, further that the discretion of the court to stay an action as vexatious under the Rules or in its inherent jurisdiction was essentially different from a judgment of estoppel; and that, in fact, the Court, in staying the action was acting under the Rules and its inherent jurisdiction.

The application to stay the plaintiff’s second action was made under O. 60, r. 2. Such an application is sufficient to invoke the inherent jurisdiction of the court, (Day v. William Hill (Park Lane) Ltd.[cliv]³⁷; Willis v. Earl Howe[clv]³⁸). This inherent power of the court to protect its process from abuse has been described by Lord Blackburn in Metropolitan Bank v. Pooley[clvi]³⁹:

“But from early times (I rather think, though I have not looked at it enough to say, from the earliest times) the Court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing—the Court had the right to protect itself against such an abuse; but that was not done upon demurrer, or upon the record, or upon the verdict of a jury or evidence taken in that way, but it was done by the Court informing its conscience upon affidavits, and by a summary order to stay the action which was brought under such circumstances as to be an abuse of the process of the Court; and in a proper case they did stay the action.”

Nor is this power affected by the Rules of Court as stated by Lord Pearce in Connelly v. D.P.P.[clvii]⁴⁰ following Stephenson v. Garnett[clviii]⁴¹:

“... in civil matters the Rules of the Supreme Court (Orders 25 and 40) as to striking out vexatious pleadings and staying or dismissing the action did not exhaust the inherent jurisdiction of the court to go behind the form of the pleading and look to the substance that lay beneath it.”

The Court then, in hearing the application to stay the second action, was concerned with the substance of the two actions and it was not necessary for it to find that the plaintiff was as a matter of law estopped from bringing the second action. As Lord Devlin points out in Connelly v. D.P.P. (ibid, at p. 1200):

“MacDougall v. Knight[clix]⁴² was a case in which the plaintiff was suing a second time on a second defamatory statement in the same pamphlet. Lord Esher M.R. said (ibid 9): ‘even if the plaintiff could in law split up the defamatory matter in the report into different causes of action, I think such a course would be vexatious, so that either way I am of opinion the appeal must be allowed and the matter stayed.’ Actions have been stayed upon the same principle by the Court of Appeal in Greenhalgh v. Mallard[clx]⁴³ and Wright v. Bennett[clxi]⁴⁴. In the latter case the Court did not reach any conclusions as to whether the plea of res judicata would succeed.”

The distinction between an action being stayed as res judicata and an action being stayed under the inherent power of the court is, perhaps, best shown by reference to Brunsden v. Humphrey[clxii]⁴⁵, a case relied upon by the applicant to establish his legal right to bring the two actions with which we are concerned.

Bowen L.J. said in this case[clxiii]⁴⁶:

“It may be said that it would be convenient to force persons to sue for all their grievances at once and not to split their demands; but there is no positive law ... against splitting demands which are essentially separable (see Seddon v. Tutop [1796] EngR 2362; (6 T.R. 607)), although the High Court has inherent power to prevent vexation or oppression, and by staying proceedings or by apportioning the costs, would have always ample means of preventing any injustice arising out of the reckless use of legal procedure.”

Brett M.R. in the same case adopted the argument of counsel which he sets out as follows[clxiv]⁴⁷:

“In this second action it was urged that the plaintiff could not succeed, because no person can sue twice for one and the same cause of action. On the other side it was contended that there were two distinct causes of action, and that there was no law to prevent two actions: that it might be sometimes oppressive to bring two actions, but in that event the Court might summarily stay one of them, and that in the present case the two actions were not oppressive.”

And see also the list of cases cited by Mr. Turner Q.C. in the second edition of Spencer-Bower and Turner, Res Judicata, pp. 407-8, note 2.

In exercising the discretion under O. 60, r. 2 and also its inherent jurisdiction to stay the court was bound by the provisions of the Judicature Act of 1876 (Queensland) made part of the law of Papua by the Courts and Laws Adopting Ordinance 1888. This Act is in identical terms to the English Judicature Acts (36 & 37 Vic. c. 66 s. 24).

Under this section one of two cross actions arising out of the same contract may be stayed, where the court considers that all the matters in controversy between the parties may be appropriately settled in the one action, cf. Thomson v. The South Eastern Railway Company and The South Eastern Railway Company v. Thomson[clxv]⁴⁸. This was in keeping with the policy of the legislature in passing the Judicature Acts. See Bowen L.J. in McGowan v. Middleton[clxvi]⁴⁹:

“Before those statutes a defendant could not get cross-relief in the same action; and the legislature intended that all controversies existing between the parties should be swept away by one litigation. This is one of the cardinal principles of the Judicature Acts, and it is set forth in the Act of 1873, s. 24, sub-s. 7. After that provision was enacted, it became the duty of the Courts of Justice to bring about the final settlement of disputes.”

No written judgment was delivered by the court in granting the motion to stay W.S. 110 of 1974. From counsel’s notes of the verbal judgment it is clear that the court considered that this action was concerned with the same subject matter as that raised by the defendant’s counterclaim and the applicant’s defence to this counterclaim in W.S. 284 of 1973; with the result that it was not possible to draw pleadings in W.S. 110 of 1974, since, by reason of the identity of the matters pleaded in the two actions, there must be estoppels. It is clear also, that the court considered that the applicant would be entitled to the substantive relief claimed in W.S. 110 of 1974 if he were to succeed in his defence to the counterclaim in W.S. 284 of 1973.

Counsel for the applicant made no complaint about these findings of the court. Indeed, I understood him to concede that they were correct and to further concede that they were sufficient grounds to stay W.S. 110 of 1974 until after judgment in W.S. 284 of 1973.

Instead, he based his objection to the judgment on the narrow grounds that since the two actions were based on separate causes of action he had a legal right to bring the two separate actions. For this proposition he relied on the case of Brunsden v. Humphrey[clxvii]⁵⁰. And further that the Court wrongly exercised its discretion to stay W.S. 110 of 1974 in that it based it on the principle of Henderson v. Henderson[clxviii]⁵¹, as formulated by Wigram V.C.

In the applicant’s submission Henderson’s case[clxix]⁵² only applies where there is one cause of action and the facts required to be proven are identical in both actions. In other words, where there is res judicata.

But the dictum of the Lord Chancellor is not only concerned with res judicata. In Chancery, as opposed to the common law, courts the practice was to deal with the controversy or the transaction forming the subject matter of the action as a whole, and endeavour to do complete justice with respect to it. The first part of the dictum of the Vice Chancellor deals with the practice of the court during the pendency of an action. Parties were required to bring forward their whole case in that action and a second action was not permitted if the parties could obtain all that they were entitled to in the first action.

Henderson’s case[clxx]⁵³ was, of course, decided before the Judicature Acts; and because of the separation of the Courts of Equity and Law, and the rules of pleading, many matters which, since the Judicature Acts, may be decided in the one action, were of necessity, brought in different actions and different courts. It would be idle, for example, to search for pre-Judicature Acts cases in the Courts of Chancery illustrating the application of the principle to cases involving counterclaims since these were made possible by those Acts. Nevertheless, the principle is just as applicable in the new circumstances brought about by the Judicature Acts as it was formerly. As Lopes L.J. said in Earl Poulett v. Viscount Hill[clxxi]⁵⁴:

“A fusion of law and equity has taken place, and ... it is clear that the plaintiffs can obtain in the first action everything to which they are entitled, yet they bring a second action. This second action is unnecessary. Under the old practice a plea of abatement of a pending action would have been a perfectly good plea to the present action, all the relief sought in the second action being covered by the first.”

It is to this principle, requiring the parties to present their whole case, that the court referred to in its reasons for staying the second action. “In then deciding to sue in this Court in another case, the plaintiff is in breach of the principle referred to in Henderson’s case, that it has omitted to bring forward the whole of the case it might have brought forward”, Appeal Book, p. 24.

It was not necessary, as has been shown from the authorities, that the court in making the order to stay should consider whether the whole action was or would be res judicata nor in fact did it do so. If it were necessary to do so, I would hold that the appellant would on completion of the first action be estopped as a matter of law from proceeding with the second action. The appellant’s argument was based upon the existence of two separate causes of action; namely, the right of action for money had and received in the first writ and the right of action for breach of contract in the second writ. It was argued that since there were distinct causes of action then the appellant was legally entitled to bring two actions.

The argument, in my view, does not distinguish between the old forms of action which were abolished by the Judicature Acts and the nature of the cause of action. The action for money had and received was one of indebitatus assumpsit based on a contract either express or implied. (See Sinclair v. Brougham[clxxii]⁵⁵). In the present case the action for money had and received in the first action was an action based upon the contract of service of the respondent and his alleged breach of it in withdrawing and retaining money from the bank account of the appellant.

The second action is concerned with further alleged breaches of the contract by the respondent.

In my view, there is one cause of action; namely, the contract of service between the appellant and the respondent and the breach of it. The fact that the respondent has allegedly breached the contract in a number of respects does not give him a separate cause of action in respect of each breach. (See Conquer v. Boot[clxxiii]⁵⁶; Van Amstel v. Country Roads Board[clxxiv]⁵⁷; Cahoon v. Franks[clxxv]⁵⁸).

For these reasons, then, I hold that the applicant has not satisfied the onus cast on him of showing that the decision of the primary judge was wrong. On the contrary, the decision, in my view, was on the facts of the case clearly right, and fully in accord with the duty cast on the court by s. 4 (8) of the Judicature Act to provide for the final determination of all matters in controversy between the parties and to avoid multiplicity of actions. Any other decision would appear to me to be a reversion to a pre-Judicature Act situation with a proliferation of unnecessary actions. Indeed, if the applicant’s argument were to succeed it is hard to see that the applicant, instead of the second action, might not have commenced a series of actions in respect of the numerous breaches of contract alleged by him.

As has been noted, the applicant in addition to showing a prima facie case of error must also show that substantial injustice will be done by leaving the erroneous decision unreversed. In his application for leave no reasons showing injustice to the applicant were given as required by r. 10 of the Supreme Court (Full Court) Rules. Nor were any substantial grounds given in argument why the amendment to the first action should not be sought. So that, on this ground also, the application should fail.

The principal injustice which may result from an interlocutory order is that, whilst interlocutory in form, it may in fact finally determine the rights of the parties so that the litigant would be prevented from having his claim litigated. This is recognized both by judicial authority and the legislature.

In Ex parte Bucknell[clxxvi]⁵⁹ the High Court said:

“For example, a judgment for either party on a demurrer might, in effect, be decisive of the whole litigation. Although such a judgment would often be interlocutory, it might be final in determining the issue between the parties, and, in such a case, leave would be granted almost as of course.”

Section 20 (3) (b) (iii) of the Supreme Court Ordinance provides that leave to appeal is not required from interlocutory judgments: “In such other cases prescribed by the Rules of Court as are in the nature of final decisions.”

Since no such prescriptions have been made by rule, it is incumbent on the court to consider whether the present order is of such a nature as to make a final determination of the applicant’s claim in W.S. 110 of 1974. To do this it is necessary to consider the state of the cases. As found by the primary judge the applicant in W.S. 110 of 1974 seeks various forms of relief for alleged breaches of contract by the defendant—a declaration of trust, an injunction and damages. These breaches of contract have already been pleaded as a defence to the defendant’s counterclaim alleging wrongful dismissal under the contract and claiming damages. It was open to the applicant to apply to amend his pleadings at any stage of the proceedings.

After the order of the court staying W.S. 110 of 1974 it was still open to the applicant to apply to amend under O. 32, r. 13 which was made to give effect to s. 4 (8) of the Judicature Act. It reads: O. 32, r. 13 “The Court or a Judge may at any time, and on such terms as to costs or otherwise as the Court or Judge may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real questions in controversy between the parties.”

In Shannon v. Lee Chun[clxxvii]⁶⁰ Barton J. quoted with approval the judgment of Bowen L.J. in Cropper v. Smith[clxxviii]⁶¹.

In Dwyer v. O’Mullen[clxxix]⁶² Higginbotham C.J. referring to the above rule said:

“The last clause of that rule makes an amendment mandatory. The judge is under the obligation of making an amendment, but only for a certain purpose and in certain cases—for the purpose of determining the real question in controversy between the parties—that being expressed in many cases to be the question which the parties had agitated between themselves, and had come to trial upon.”

On these authorities, I find that the interlocutory order staying W.S. 110 of 1974 does not finally determine the rights of the parties. The applicant has a right to amend his pleadings and have his right to the various relief claimed determined. He will, of course, pay the costs of the amendment but that is not an injustice.

I find then that the applicant has not shown that any injustice has been shown or does exist arising from the order to stay and that therefore the applicant has, in this respect also, failed to satisfy the onus cast on him.

For these reasons I would refuse leave to amend the application for leave to appeal and refuse leave to appeal.

Application for leave to appeal granted.

Appeal allowed.

Order for a final stay set aside.

Application for a stay transferred to the list of the Judge hearing action No. 284 of 1973 (P).

Solicitors for the appellant: Craig Kirke & Wright.

Solicitors for the respondent: McCubbery, Train, Love & Thomas.

[cxix][1956] 3 All E.R. 513.

[cxx][1973] V.R. 829.

[cxxi] (1949) 78 C.L.R. 62, at p. 109.

[cxxii][1935] HCA 48; (1935) 52 C.L.R. 713, at p. 720.

[cxxiii][1953] HCA 25; (1956) 94 C.L.R. 621, at p. 627.

[cxxiv][1926] A.C. 155.

[cxxv][1965] 1 Q.B. 630; [1965] 2 All E.R. 4.

[cxxvi][1943] N.Z.L.R. 712.

[cxxvii] [1965] 1 Q.B. 630; [1965] 2 All E.R. 4, at p. 9.

[cxxviii][1953] HCA 25; [1956] 94 C.L.R. 621.

[cxxix](1843) 3 Hare 100; 67 E.R. 319.

[cxxx](1843) 3 Hare 100; 67 E.R. 319.

[cxxxi][1943] NZGazLawRp 80; [1943] N.Z.L.R. 712, at p. 718.

[cxxxii](1843) 3 Hare 100; 67 E.R. 319.

[cxxxiii](1843) 3 Hare 100; 67 E.R. 319.

[cxxxiv](1956) 94 C.L.R. 621.

[cxxxv][1938] NSWStRp 24; (1938) 38 S.R. (N.S.W.) 351.

[cxxxvi](1935) 52 C.L.R. 713.

[cxxxvii][1908] HCA 57; (1908-9) 7 C.L.R. 76, at p. 95.

[cxxxviii][1891] UKLawRpAC 48; [1892] A.C. 61, at p. 67.

[cxxxix][18921 A.C. 61, at p. 67.

[cxl][1973] 2 W.L.R. 795.

[cxli] [1936] 1 K.B. 382, at p. 398.

[cxlii][1973] 2 W.L.R. 795.

[cxliii](1908) 7 C.L.R. 566.

[cxliv][1956] 3 All E.R. 513.

[cxlv][1901] ArgusLawRp 51; (1901) 27 V.L.R. 66, at p. 68.

[cxlvi][1936] HCA 67; (1936) 56 C.L.R. 221, at p. 223.

[cxlvii][1936] HCA 67; (1936) 56 C.L.R. 221, at p. 224.

[cxlviii][1901] ArgusLawRp 51; (1901) 27 V.L.R. 66, at p. 68.

[cxlix][1969] V.R. 401.

[cl][1953] HCA 78; (1953) 90 C.L.R. 295, at p. 303.

[cli](1843) 3 Hare 100.

[clii] [1947] 2 All E.R. 255, at p. 258.

[cliii](1843) 3 Hare 100; 67 E.R. 319.

[cliv][1949] 1 K.B. 632.

[clv][1893] 2 Ch. 545.

[clvi] (1885) 10 App. Cas. 210, at p. 220.

[clvii] [1964] 2 W.L.R. 1145, at p. 1205.

[clviii][1898] 1 Q.B. 677.

[clix](1890) 25 Q.B.D. 1.

[clx][1947] 2 All E.R. 255.

[clxi][1948] 1 All E.R. 277.

[clxii](1884) 14 Q.B.D. 141.

[clxiii][1884] UKLawRpKQB 158; (1884) 14 Q.B.D. 141, at p. 151.

[clxiv][1884] UKLawRpKQB 158; (1884) 14 Q.B.D. 141, at p. 144.

[clxv](1881-82) 9 Q.B.D. 320.

[clxvi][1883] UKLawRpKQB 112; (1882-83) 11 Q.B.D. 464, at pp. 472-3.

[clxvii](1884) 14 Q.B.D. 141.

[clxviii][1843] EngR 917; (1843) 3 Hare 100, at p. 115; 67 E.R. 319.

[clxix](1843) 3 Hare 100; 67 E.R. 319.

[clxx](1843) 3 Hare 100; 67 E.R. 319.

[clxxi][1892] UKLawRpCh 190; [1893] 1 Ch. 277, at p. 281.

[clxxii][1914] UKLawRpAC 8; [1914] A.C. 398, at pp. 415 and 454.

[clxxiii][1928] 2 K.B. 336.

[clxxiv][1961] V.R. 780.

[clxxv](1967) 63 D.L.R. (2d) 274.

[clxxvi][1936] HCA 67; (1936) 56 C.L.R. 221, at pp. 225-6.

[clxxvii][1912] HCA 52; (1912-13) 15 C.L.R. 257, at p. 261.

[clxxviii][1884] UKLawRpCh 91; (1884) 26 Ch. D. 700, at p. 710.

[clxxix][1887] VicLawRp 156; (1887) 13 V.L.R. 933, at p. 939.

[clxxx]Supreme Court (Full Court) Act, s. 28 (4):

On an appeal against sentence the Full Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass the other sentence in substitution therefor, and in any other case shall dismiss the appeal.