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Is it possible to plan and execute a multi
step action; say a two step action, where
the first step enables the second step ?
petery wrote:
You have probably already done so, but a search on
Henderson v Henderson
should throw up all the relevant precedents.
Good ! I'm going to analyse the cases and start a new thread:
Subject: Henderson v Henderson analyses ?
I understand that the latest issue of the UK's Civil Procedure Rules does
not now mention the rule in Henderson v Henderson.
As I lay person, I beleive that such precedents cater for exactly what
can't be distilled into rules ?
Not a lawyer, but have had res judicata and the rule in Henderson etc
quoted to me by a solicitor where I wanted the court to construe an Article
in a company's Articles of Association and then proposed to seek damages
for Breach of Contract in a second subsequent claim
This sounds very close to one of my matters. I'm trying:
harassment/abuse of legal procedure -> oppression -> s 459
[Actually the local/retarded version of the UK's Co.Act s 459].
<><><><><><><><><><><><><><>
Timely wrote:-
So doing is more than merely possible...
Yes. In real life and not just in theory. But when...
..... who has had a full
and fair opportunity to allege and to prove a claim to court-grantable
relief generally will be deemed later to be barred from asserting and
being granted other/different relief arising from basically the same
underlying acts/occurrences sued upon in the first instance.
OK, but what if he reasonably didn't previously know of the good
grounds for the relief. And [for a different matter] can he use:
evidenceA provides reliefA & declarationA and declarationA with
undisputed factsB provides proofB and reliefB ?
As you'll see he couldn't have acheived reliefB without declarationA.
....big snip...
Compare/contrast the now well-known case ...O.J. Simpson was
acquitted in a crimial homicide prosecution ..and was
later [law-correctly] permitted to be sued ...in a civil lawsuit...
OK ! That seems to answer my question.
But what would have happened if due to lack of legal resources,
a civil case had been 'lost', before the criminal case ?
Would the criminal case be barred from finding facts which it
did 'in casu' ?
And if it was NOT barred, could a second civil case be launched ?
And could a valid defence be "the new point of law revealed by
the criminal case [not point of fact], was knowable
[given sufficient resources] and should have brought at the
first case and is hence now barred" ?
-- big snip --
Try harder to BEGIN by stating whatever are the (even if: just
theoretically posited) SPECIFIC facts - the basic underlying
"transactions and occurrences" to be sued upon ...
No, because:
1. then you adjust your answers to reach YOUR goal,
2. YOU know the legal principles, but I'm better qualified to
use logic to deduce conclusions from my facts and your legal
principles. One of us has the lock and one has the key, that
prevents unilateral 'hanky-panky' ?
If you could either provide valid counter-argument, or concede
that:
1. Ordinance 17. "..may proceed for SUCH amount after 6 weeks
proper notice..", AND [both independantly !]
2. that all accounts rendered after the im-proper notice
[demand letter] listed the "hand over balance" as separate
from the accumulating balance;
disproves the basis of my defeat by "he admitted owing more than
the claim",
then I could remove the accusation of male fide against you.
Yes, I beleive this would all be irrelevant for 'timely reasons'
in the US. But that's a different argument.
BTW I'm considering 'a principle' as it applies to both of my
cases, that's one reason why you can't build a scenario.
I.e. 1 principle applicable to multiple stories.
...and relief sought to
be achieved -- and (at least in the first instance) at least to defer
(if not to suppress completely) what you refer to as "philosopy" and
"theory".
....
posting/query, you will be (far) less confused (about the law) than
you continue to demonstrate that you are.
OK, I'll try; but one of the reasons why you can't understand,
is that the story is not following your preconceived scenario,
which you are unable/unwilling to abandon.
I admit that my fisherman's wife's jewelery analogy failed [you].
Here's some applicable case law:--
COHEN v MALLINICK 1957
}... the facts disclosed in the papers, applicant's predominant motive,
}so he contends, in bringing these proceedings was not to seek to recover
}money due to her by the respondent, but to harass and oppress the latter.
}...The learned Judge referred to certain authorities...
}"It must however appear to the Court that the motive of oppression was
}either the sole, or at least the predominant, motive actuating the
}applicant..."
Here are some applicable statute extracts:--
]Provided that, except where immovable property has been
]specially declared executable by the court or, in the case of a
]judgment granted in terms of rule 31 (5), by the registrar, no
]such process shall issue against the immovable property of any
]person until a return shall have been made of any process which
]may have been issued against his movable property, and the
]registrar perceives therefrom that the said person has not sufficient
]movable property to satisfy the writ.
=======
]Whenever the court is satisfied that a petition for the sequestration
]of a debtor's estate is an abuse of the court's procedure or is
]malicious or vexatious, the court may allow the debtor forthwith
]to prove any damage which he or she may have sustained
]by reason of the presentation of the petition and award him or
]her such compensation as it may deem fit.
My layman's conclusion is:
that if the creditor wants to mainly 'harass' the debtor [vs. get
due payment quickly] he would go after the very 'items' which the
just law seeks to prevent him going after - amongst others the
debtor's means of livelyhood. [ie. the fisherman's boat not his
wifes jewels].
Once harassment [abuse of legal procedure] is established, can the
next step proceed ? I.e. can 'proof/acceptance of harassment' be use
for further, perhaps unrelated, litigation ?
Thanks for any input.
== Chris Glur.
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n 16 Jun 2005, news@absamail.co.za wrote:
[ So. African civil courts resovling non-tribal civil
law commercial disputes (including those to which
the OP has been referring in his prior postings)
have adopted and now generally "broadly" apply a
"collateral estoppel" model, more encompassing
than narrower classic "res judicata" formulations,
influenced by and parallel to that increasingly
prevailing in the U.S. state and federal courts to
the effect that a litigant [and, also incresaingly,
also those in privity with the litigant] who has
been given" a full and fair opptunity to allege and
to prove a claim to court-grantable relief generally
will be deemed later to be barred from asserting
and being granted other/different relief arising
from basically the same underlying acts/occurrences
sued upon in the first instance.
OK, but what if he reasonably didn't previously know
of the good grounds for the relief.
In this (i.e., a "res judicata" and "collateral estoppel") context,
the "reasonable" rejoinder of this sort begs the core question the
increasingly broadened use of "collateral estoppel" principles is in
large part designed to answer. In other words if more simply put:
And [for a different matter] can he use:
evidenceA provides reliefA & declarationA
and declarationA with undisputed factsB
provides proofB and reliefB ? As you'll see
he couldn't have acheived reliefB without
declarationA.
The very notions of "full and fair oppturnity" to raise/litigate
subsume, and are in large part designed to moot, inquiries into
particular intent (or, as you put it above, what the litigant "didn't
previously know") -- jurisprudentially, one of the core purposes of
paying greater attention to the answer to the question:
What is the "gist" (however characterized in terms
of "legal theory" and, relatedly, the "labeling" of a
"cause of action") of the underlying "transactions
and occurrences" sued upon?
But as applied to your case, in particular, there is an even more
basic threshold principle than the more general ones to which you here
allude -- namely, that you have been referring in this and related
newsgroup threads to the legislative standards in your country that
prescribe how and, also importantly, when a party against whom a
judgment awarding a sum of money on default may/will be granted relief
from such a judgment.
...big snip...
OK ! That seems to answer my question.
But what would have happened if due to lack
of legal resources, a civil case had been 'lost',
before the criminal case ? Would the criminal
case be barred from finding facts which it
did 'in casu' ?
Your "...big snip..." so very drastically alters context so as to make
your "That,etc." inapt. Further, as a practical matter (in the
U.S.), the civil wrongful death lawsuit against someone like Simpson
generally would not have been prosecuted (even if, perhaps, it might
at least in theory have been commenced) before the criminal trial was
completed; and, in fact, the lawsuit against O.J. Simpson was not
brought and tried until after the conclusion of the criminal trial.
Nonetheless:
As applied to you, you miss the basic analogy to what occurred
(criminally and civilly) in the Simpson cases -- namely, that there
was no "privity" between the State of Calif., as such, represented by
the L.A. County D.A. as criminal law prosecutor, and the private party
plaintiffs (the civil law representatives of the estates of the
persons he killed), prepresented by privately retained counsel, so
that the "interests" said to be at stake in each of the separate
proceedings were very different in terms of persons and also
rights/claims to be litigated and releif to be granted, re. which
there were relatedly also very different burden-of-proof requirements
("beyond a reasonable doubt" in the criminal case and "preponderence
of the evidence" in the civil case).
Your present (and much too belated) exercise, in contrast, is an
attempt to avoid choices you made from the outset of the lawsuit
against you -- in particular, that you are (properly) deemed to have
known about the applicable legislation that prescribes how/when a
civil default judgment may be rescinded (vacated) or relief therefrom
otherwise granted, especially because it is a statute
clearly/specifically addressed to the nature of the claims that may be
raised which (obviously) include the one you purport to attempt to
raise belatedly (whether the judgment was "void ab initio").
Worse, even in your attempt to relitigate the denial of your
origiunally made motion for relief from the default judgment you
invited agasint you, you have been dishonest (at least in effect even
if you would claim in not explicitly articulated intent); for you
attempt to portray as if not made before an arguement/claim which
(albeit very artlessly and confusingly) you actually did attempt
earlier to lititigate.
If you could either provide valid counter-argument, or concede
that:
1. Ordinance 17. "..may proceed for SUCH amount after 6 weeks
proper notice..", AND [both independantly !]
2. that all accounts rendered after the im-proper notice
[demand letter] listed the "hand over balance" as separate
from the accumulating balance;
disproves the basis of my defeat by "he admitted owing more than
the claim",
then I could remove the accusation of male fide against you.
Yes, I beleive this would all be irrelevant for 'timely reasons'
in the US. But that's a different argument.
We're finished playing this part of your game. Many others of your
respondents besides I have fully explained these principles to you in
ways that have also fully refuted the just emptily conclusory
statements you nonetheless continue to make. If you still don't
understand your compulsively repeated misconceptions of the notions of
"cause of action" as applied in your (and numerous other) country's
courts, so be it.
one of the reasons why you can't understand,
is that the story is not following your preconceived scenario,
which you are unable/unwilling to abandon.
I admit that my fisherman's wife's jewelery analogy failed [you].
I and also and most of your other publicly posting respondents who are
familiar with the facts of the lawsuit against you for unpaid utility
services and also the lawsuit relating to your father's will and the
business he formerly owned/operated, as you, yourself, have posted
them from time to time, understand very well why the courts have
(correctly) ruled (against you) as (you have reported) they so far
uniformly have done.
Recently, you appear to have introduce a not formerly by you discussed
element relating to the first of these lawsuits -- namely, whether
plaintiff's mode of enforcing the judgment that your country's courts
have upheld as against you consititutes some form of (not actually by
you specified) "harassment" that ought entitle you to some sort of
(also not by you identified) relief. The infirmity with your postings
in this latter respect remains, however, that, as in the past, yo
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