Guiseppina Dissidomino by her next friend Maria Rosa Dissidomino v Butcher Paull & Calder (a Firm)

[2005] WASCA 210

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Res judicata
3. › Identity of parties
4. › Role of next friend
5. › Whether counterclaim brought by next friend in own name was in substance claim by person under disability
6. › Whether procedural irregularity in failing to name plaintiff as party could be cured
7. › Rules of the Supreme Court 1971 (WA), O 18 r 6, O 21 r 5
1. Practice and Procedure
2. › Res judicata
3. › Privity of interest
4. › Whether person under disability was privy of next friend in separate proceedings
5. › Test for privity — whether party claims 'under or through' another
6. › Jackson v Goldsmith (1950) 81 CLR 446
7. › Ramsay v Pigram (1967) 118 CLR 271
1. Practice and Procedure
2. › Estoppel
3. › Anshun estoppel
4. › Whether allegations of professional negligence in present proceedings could and should have been raised in earlier costs action
5. › Whether allegations so relevant to subject matter of earlier proceedings that it was unreasonable not to rely on them
6. › Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
1. Practice and Procedure
2. › Res judicata
3. › Identity of subject matter
4. › Professional negligence
5. › Whether successive actions based on different particulars of negligence arising from same retainer constitute same cause of action

Quick Take

A next friend is not a privy of the person under disability for res judicata purposes, because the next friend does not 'claim under or through' the person under disability. However, where a counterclaim is in substance a claim by the person under disability (even if brought in the next friend's own name), the court will look to the substance rather than the form and treat the proceedings as between the same parties. Successive professional negligence actions based on different particulars of negligence arising from the same retainer will be barred by res judicata or Anshun estoppel where the later particulars could and should have been raised in the earlier proceedings.