Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: cited
I note that such a course was adopted in Bryant v Commonwealth Bank of Australia (1994) 51 FCR 529 on the basis of an Anshun-type estoppel: see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589. I accept that, in many cases where the claim is made that there is an estoppel by judgment or an issue estoppel or an Anshun-type estoppel, it is more appropriate for those issues to be determined on pleadings rather than by the summary dismissal of proceedings. But I consider that this case is a clear one, where Mr Jewiss has previously raised and had a full opportunity to ventilate the very matters which he has sought to raise by way of his Amended Application and Amended Statement of Claim and those issues have been determined against him. There is no reason why he should be given a further opportunity to re-ventilate those issues in the present proceeding. 51 In this matter, I do not think there is scope for the Anshun principle to be applied, simply because in my judgment the issues now sought to be raised by Mr Jewiss are the same issues as those he sought to raise in the District Court proceedings and upon which an adjudication adverse to those claims has been made. It is not a matter of him raising matters now which he did not, but could have, raised in the earlier proceedings (cf Anshun at 602-604). It is simply a matter of him now making the same allegations. Perhaps to a minor degree Mr Jewiss now asserts the availability of further or different evidence in support of those allegations than that which he adduced at the hearing before the District Court, but that is to a degree speculative. Even if it were so, the issues themselves have been determined. They have been determined adversely to Mr Jewiss. 52 For those reasons, in my judgment, the claim in the Amended Application and the Amended Statement of Claim have no prospect of success. They have already been decided against Mr Jewiss. Those claims are therefore an abuse of process and should be dismissed. 53 I also accept the contentions of counsel for the Commissioner, that in significant respects the allegations now, and previously made, by Mr Jewiss could not give rise to invalidity of the assessments and of the Notices. The power of search and seizure exists under s 263 of the ITAA. It is not a power which is to be construed in the same way as a search warrant. It does not require routinely the production of a written authority to support the exercise of the power. There was no obligation to produce the written authority in support of the search unless requested, and no request was made (s 263(2)). The fact that Mr Jewiss was not present when the search was carried out does not support any suggestion that it was an improper investigation. The way in which that part of the investigation was carried out was not itself capable of affecting the validity of the assessments or of the Notices. The complaint of the lack of opportunity to assert legal professional privilege in respect of the seized documents is not supported by any evidentiary allegation. It is simply a general allegation which is not made out. It does not in any event go to the validity of the Notices. In addition, as noted above, there is nothing to connect the decision-making process in respect of the Notices with those involved in the search and seizure processes or the method of their implementation.