Case: Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464
Outcome: cited
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 their privies (per Dixon J, as his Honour then was, in Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 531). Res judicata estoppels operate for, or against, not only the parties, but those who are privy to them in blood, title or interest. 'Privy' includes any person who succeeds to the rights or liabilities of the party upon death or insolvency, or who is otherwise identified in estate or interest (see Handley, Honourable Mr Justice KR, Spencer Bower, Turner and Handley: The Doctrine of Res Judicata (3rd Ed, Butterworths, 1996) ('Spencer Bower, Turner and Handley') at para 231). In Anglo-Australian law, res judicata estoppels must be mutual, and are not available for or against strangers (see Handley, Honourable Mr Justice KR, "Res Judicata: General Principles and Recent Developments" (1999) 18 Australian Bar Review 214 at 216-217). In Anshun Brennan J, as his Honour then was, said at 610-612: 'Imprecision in the meaning of cause of action tends to uncertainty in defining the ambit of the rule that a judgment bars subsequent proceedings between the same parties on the same cause of action. The foundation of the rule, whether it be termed res judicata, or cause of action estoppel or judgment recovered, is the merging of the cause of action in the judgment. In reference to res judicata, Dixon J said in Blair v Curran : "the very right or cause of action claimed or put in suit has ... passed into judgment, so that it is merged and has no longer an independent existence ..." If cause of action is taken to mean a right, the rule is stated in terms of the passing of the right into judgment, and the rule precludes a party bound by the judgment from maintaining against another party bound by it any subsequent proceeding to recover a judgment giving a remedy to enforce or to compensate for an infringement of that right. The rule does not preclude litigation seeking a remedy to which a party is entitled in virtue of a different right from that which was first put in suit provided that the facts which support the right sued upon in the second action are not the same facts as those supporting the right which passed into the first judgment ... If cause of action is taken to mean the facts which support a right to judgment, the rule of res judicata bars an action for relief founded upon the same facts as those upon which an earlier judgment was recovered, though the right sued upon in the second action is different from the right which passed into or was negated by the earlier judgment. .... When the same facts support rights to different remedies against the same defendant, the plaintiff cannot recover a judgment giving a remedy in respect of more than one right ... He may pursue his remedies concurrently in the same action, but he is put to his election before judgment as to which remedy he shall have. And when judgment is entered, all of the rights which he might have claimed in that litigation are merged in the judgment. ... The party entitled to relief cannot improve his position by bringing separate actions. Though he may elect between inconsistent remedies pursued in the one action, or between the actions to be pursued in order to recover a judgment giving the remedy he chooses, the merger in the judgment first recovered of a right to another remedy takes effect by operation of law. When those rights (or causes of action) are extinguished, no further litigation may be pursued to recover a second judgment upon them.' (footnotes omitted)