Cleary v Jeans

(2006) 65 NSWLR 355; [2006] NSWCA 9

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Abuse of process
3. › Collateral attack on prior decision
4. › Earlier proceedings based on estoppel
5. › Later proceedings against different party based on truth
6. › Whether later proceedings abuse of process
1. Estoppel
2. › Estoppel by representation
3. › Representation conveyed by pleadings and affidavits
4. › Whether pleadings and affidavits capable of supporting estoppel against amendment
1. Practice and Procedure
2. › Res judicata
3. › Anshun estoppel
4. › Fraud inducing conduct creating estoppel enforced in earlier proceedings
5. › Whether Anshun estoppel available where plaintiff alleges fraud prevented full opportunity to litigate
1. Tort
2. › Deceit
3. › Damages
4. › Loss flowing from judgment in earlier proceedings
5. › Whether proceedings to recover loss caused by fraud inducing adverse judgment are collateral attack on that judgment

Quick Take

Where a judgment is based on estoppel by representation (arising from a party's pleadings and affidavits), that judgment is not inconsistent with a later judgment based on the truth against a different party. Proceedings alleging that fraud induced the conduct creating the estoppel enforced in the earlier proceedings are not barred by Anshun estoppel and are not an abuse of process, because the plaintiff did not have a full opportunity to litigate the issue in the earlier proceedings. An action claiming damages for loss caused by an adverse judgment resulting from the defendant's fraud is not a collateral attack on that judgment.