Willoughby v Clayton Utz [No 2]

(2009) 40 WAR 98; [2009] WASCA 29

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Estoppel
2. › Res judicata
3. › Cause of action estoppel
4. › Dismissal of first action for lack of standing
5. › Whether dismissal was on the merits
6. › Whether causes of action merged in judgment of dismissal
1. Estoppel
2. › Res judicata
3. › What constitutes the record
4. › Whether reasons for judgment may be examined
5. › Distinction between res judicata and issue estoppel
1. Limitation of Actions
2. › Acknowledgment
3. › Whether deed of assignment constituted acknowledgment within s 44(1) Limitation Act 1935 (WA)
4. › Whether acknowledgment doctrine applies to causes of action in tort and contract as opposed to debts
5. › Limitation Act 1935 (WA), s 44(1)
1. Estoppel
2. › Estoppel preventing reliance on limitation defence
3. › Whether conduct of defendant's insurer in acquiring causes of action was unconscionable
4. › Whether insurer was agent of defendant

Quick Take

A dismissal of proceedings for lack of standing (where the causes of action were vested in a trustee in bankruptcy) is arguably not a decision 'on the merits' and may not support a plea of res judicata in subsequent proceedings. The common law doctrine of acknowledgment preserved by s 44(1) of the Limitation Act 1935 (WA) applies only to debts and liquidated pecuniary claims, not to causes of action for damages in tort or contract. An insurer is not the agent or privy of the insured merely by reason of the insurance relationship.