Case: O'Donel v Commissioner for Road Transport and Tramways [1938] HCA 15 ; (1938) 59 CLR 744
Outcome: considered
The present motion depends solely upon a plea of res judicata. Issue estoppel is not raised. The difference between the two defences was addressed in the reasons of the majority of the High Court (Gibbs CJ, Mason and Aickin JJ) in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 597 as follows: 'The distinction between res judicata (in England called "cause of action estoppel") and issue estoppel was expressed by Dixon J. in Blair v. Curran ... in these terms: "In the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order." The distinction was restated by Fullagar J. in his dissenting judgment in Jackson v. Goldsmith ... . His Honour expressed the rule as to res judicata by saying: "where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims 'interest reipublicae ut sit finis litium' and 'nemo debet bis vexari pro eadem causa.' " His Honour went on to discuss issue estoppel, citing the comment of Dixon J. in Blair v. Curran ...: "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or other privies." ' 45 Finally, the learned author refers to the decision of the High Court in O'Donel v Commissioner for Road Transport and Tramways [1938] HCA 15 ; (1938) 59 CLR 744 at 763, where Evatt J said: 'The argument involves and is based upon the fallacy that, where an issue between A and B relates to a state of things which is capable of subsequent alteration, the conclusive determination in A's favour of that state of things as at one day plus conclusive proof that up to a later day there has been no alteration of such state of things establishes in A's favour as against B and estoppel as to the state of things existing at the later day. ...' 46 At 578-579, Latham CJ said: 'Now it cannot possibly be said that the Supreme Court, by a judgment relating only to a period which ended on 15th February, thereby made any direct or actual decision or determination as to any matter or state of affairs whatever which existed at a later date. That judgment did create an estoppel as to one proposition but that estoppel cannot operate to establish by estoppel another proposition which follows from the former proposition only when that proposition is combined with others the establishment of which depends upon evidence or assumption.' 47 Whilst the language of estoppel is used, those considerations should lead to a similar conclusion in the case of res judicata. In the present case the finding that GST was not entitled to remuneration for exploitation at the time of the previous proceedings did not preclude the possibility that it might, at some later stage, derive such a right. This it did by obtaining the current patents. 48 In the circumstances the motion must be dismissed with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 7 March 2007 Counsel for the Applicant: Mr A Vasta QC Mr D Eliades Solicitor for the Applicant: Fraser Power Counsel for the Respondent: Mr R Bain QC Mr A Duffy Solicitor for the Respondent: Brisbane City Council Legal Practice Date of Hearing: 13 November 2006 Date of Judgment: 7 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/279.html