Case: Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464
Outcome: applied
Finance Limited v Commissioner of Taxation [2006] FCA 267 (21 March 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: &nbsp; AustLII &gt;&gt; Databases &gt;&gt; Federal Court of Australia &gt;&gt; 2006 &gt;&gt; [2006] FCA 267 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] IEL Finance Limited v Commissioner of Taxation [2006] FCA 267 (21 March 2006) Last Updated: 22 March 2006 FEDERAL COURT OF AUSTRALIA IEL Finance Limited v Commissioner of Taxation [2006] FCA 267 INCOME TAX large corporate group inter-group transactions undertaken over six consecutive fiscal years transactions involving inter-group interest bearing borrowings principally by one group member and transfers of tax losses arising out of those borrowings to other group members prior primary and appellate claims by proceedings in Federal Court made by borrowing member against the Commissioner for interest deductibility in respect of one fiscal year decision at first instance and on appeal in relation to that fiscal year adverse to that single group member findings made in context of those proceedings as to assessability to tax of that group member in respect of some transactions for differing fiscal years after conclusion of single fiscal year further proceedings commenced by the same corporate group member together with other corporate group members in respect of transactions involving borrowings and transfers of tax losses in respect of antecedent as well as subsequent fiscal years to that resolved by Federal Court in favour of Commissioner whether issue estoppel, Anshun estoppel and/or abuse of process should operate in favour of Commissioner in respect of deductions for losses of antecedent and subsequent fiscal years meaning of privies authority in Australian Courts of earlier decisions of Privy Council and House of Lords summary judgment application of Commissioner granted Income Tax Assessment Act 1936 (Cth) ss 51(1), 79E and 80G and Part VII Tax Administration Act 1953 (Cth) Part IVC Federal Court Rules O 20 r 2 subrule 2(1)(b) and (c) and Order 52B Spassked Pty Ltd v Commissioner of Taxation (No. 5) (2003) 197 ALR 553 cited and applied Spassked Pty Ltd v Commissioner of Taxation [2003] FCAFC 282 ; (2003) 136 FCR 441 cited and applied General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 applied Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1948-1949) 78 CLR 62 applied Jackson v Goldsmith [1950] HCA 22 ; (1950) 81 CLR 446 referred to Effem Foods Pty Ltd v Trawl Industries of Australia Pty Limited (1993) 43 FCR 510 referred to Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 applied Rogers v The Queen [1994] HCA 42 ; (1994) 181 CLR 251 referred to Trawl Industries of Australia Pty Ltd (in liquidation) v Effem Foods Pty Limited (1992) 36 FCR 406 referred to Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 applied Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 applied Sea Culture International Pty Ltd v Scoles [1991] 32 FCR 275 referred to Hoysted v Federal Commissioner of Taxation [1921] HCA 56 ; (1921) 29 CLR 537 discussed Hoysted v Federal Commissioner of Taxation [1925] HCA 51 ; [1926] AC 155; (1925) 37 CLR 290 discussed Henderson v Henderson (1843) 3 Ha 100 discussed Murphy v Abi-Saab (1995) 37 NSWLR 280 applied Johnson v Gore Wood &amp; Co [2000] UKHL 65 ; [2002] 2 AC 1 cited Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45 ; (1981) 147 CLR 589 applied Taylor v Ansett Transport Industries Limited [1987] 18 FCR 342 cited Mohamed Falil Abdul Caffoor, The Trustees of the Abdul Gaffoor Trust v Commissioner of Income Tax Colombo [1961] AC 584 discussed and distinguished Broken Hill Proprietary Company Limited v The Municipal Council of Broken Hill [1925] HCA 44 ; (1925) 37 CLR 284 discussed and distinguished The Council of the Municipality of Broken Hill v The Broken Hill Proprietary Company [1922] HCA 15 ; (1922) 30 CLR 400 discussed and distinguished Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21 ; (1987-1988) 164 CLR 502 discussed Chamberlain v Commissioner of Taxation (1991) 21 FCR 21 cited Federal Commissioner v Wade [1951] HCA 66 ; (1951) 84 CLR 105 referred to Society of Medical Officer of Health v Hope [1960] AC 551 discussed and distinguished Federal Commissioner of Taxation v A.N.Z. Savings Bank Ltd [1994] HCA 58 ; (1994) 181 CLR 466 referred to Falk v Haugh [1935] HCA 35 ; (1935) 53 CLR 163 cited and discussed Viro v The Queen [1978] HCA 9 ; (1978) 141 CLR 88 referred to Orica Ltd v Federal Commissioner of Taxation (2001) 182 ALR 77 not followed Queensland Trustees Limited v Commissioner of Stamp Duties [1956] HCA 75 ; (1956) 96 CLR 131 applied Commissioner of Taxation v Dulux Holdings Pty Ltd [2001] FCA 1344 ; (2001) 113 FCR 436 referred to re Sharpe (1944) QSR 26 referred to Cook v Cook [1986] HCA 73 ; (1986) 162 CLR 376 cited and discussed Skelton v Collins [1966] HCA 14 ; (1966) 115 CLR 94 referred to Hawkins v Clayton (1986) 5 NSWLR 109 referred to Federal Commissioner of Taxation v Cappid Pty Ltd [1970] HCA 41 ; (1970) 127 CLR 140 distinguished Saffron v Federal Commissioner of Taxation (1981) 30 FCR 578 discussed and distinguished Arthur JS Hall &amp; Co v Simons [2000] UKHL 38 ; [2002] 1 AC 615 discussed R v O'Halloran [2000] NSWCCA 528 ; (2000) 36 ACSR 315 discussed IEL FINANCE LIMITED, QUEENSLAND TRADING AND HOLDING COMPANY LIMITED AND SPASSKED PTY LIMITED v COMMISSIONER OF TAXATION NSD 539 OF 2004 NSD 543 OF 2004 NSD 540 OF 2004 NSD 94 OF 2005 CONTI J 21 MARCH 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 539 OF 2004 NSD 543 OF 2004 NSD 540 OF 2004 NSD 94 OF 2005 BETWEEN: IEL FINANCE LIMITED, QUEENSLAND TRADING &amp; HOLDING COMPANY LIMITED AND SPASSKED PTY LIMITED APPLICANTS AND: COMMISSIONER OF TAXATION RESPONDENT JUDGE: CONTI J DATE OF ORDER: 21 MARCH 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The respondent Commissioner lodge with the Court and with the taxpayer applicants draft declarations and/or orders giving effect to the reasons for judgment within fourteen days, including orders as to costs. 27 At the outset of their submissions in opposition to the present strike-out application, the taxpayer applicants cited Coke upon Littleton, (at s 365(b)), for the threshold observation that estoppels may be characterised as ' odious ', being an authority described by the Commissioner understandably as 'ancient'. The taxpayer applicants also cited Jackson v Goldsmith [1950] HCA 22 ; (1950) 81 CLR 446 at 458 (per McTiernan J) for the proposition that, estoppels are viewed ' unfavourably by the Courts, as having the effect of excluding the truth ', though in a context where his Honour was seeking only to establish the need for an asserted estoppel to be based on very clear and precise evidentiary material. The taxpayer applicants asserted moreover that the Court's power to strike out is discretionary in its exercise, and is to be undertaken with 'great caution', citing Effem Foods Pty Ltd v Trawl Industries of Australia Pty Limited (1993) 43 FCR 510 at 532 (per Burchett J as a member of a Full Court), where his Honour was speaking of the exercise of 'discretion to stay proceedings as an abuse of the process of the Court, whether on the ground of [ res judicata ] or on any other ground'. Reference was also made to what Dixon J (as he then was) described as the distinction between res judicata and issue estoppel, in the context of his Honour's reasons for judgment in Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464, as follows (at 532): 'The distinction between res judicata and issue estoppel is that 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'. 40 What I have thus far recorded or addressed may be described as embracing the broadly asserted foundations for the Commissioner's strike-out application. Apart from abuse of process, and in relation to the further case of the Commissioner based on issue estoppel, I was referred (indeed by both parties) to the following additional passages in the reasons for judgment of Dixon J in Blair v Curran at 532-533: 'Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order ... the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous ... In the phraseology of Lord Shaw (in the course of his Lordship's dictum in Hoysted in the Privy Council hereafter referred to and discussed), "a fact fundamental to the decision arrived at" in the former proceedings and "the legal quality of the fact" must be taken as finally and conclusively established (Hoysted v Commissioner of Taxation [1926] AC 155). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation'. 42 The doctrine of issue estoppel has been applied in what has been described as a revenue context, as the Commissioner rightly contended. In Hoysted v Federal Commissioner of Taxation [1925] HCA 51 ; (1925) 37 CLR 290 (to which reference appears by way of the English authorised report in the dictum I have extracted above from Blair v Curran ), and upon which the Commissioner placed reliance here, the Commissioner was found by the Privy Council to be estopped from asserting that trustees of a deceased estate comprising mainly realty were disentitled to certain concessional deductions as joint owners of that realty under certain land tax legislation. The High Court had earlier held by majority (Knox CJ and Starke J, Higgins J dissenting) that the Commissioner was not estopped from contending that certain beneficiaries of that estate had not become joint owners of the realty for land tax purposes, thereby adding significantly to the land tax concessional entitlements of the deceased estate taxpayer. Prior to that finding, there had been several appellate proceedings which need not be recorded. Lord Shaw in Hoysted provided the following opinion of the Privy Council at 299 in relation to the operation of estoppel in that fiscal context: 'In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted, litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle, namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which has not been taken. The same principle of setting parties' rights to rest applies, and estoppel occurs.' 43 In reaching that opinion, it was further stated that their Lordships were 'entirely in accord with the judgment of Higgins J ', who had earlier expressed the following principle in the High Court ( Hoysted v Federal Commissioner of Taxation [1921] HCA 56 ; (1921) 29 CLR 537 at 562), being a principle appearing within the scope of the dictum of Dixon J in Blair v Curran at 532 (which I have already extracted at some length): 'My view is that the point as to joint ownership was, by virtue of the formal objections, and from the nature of the judgment thereon, "actually litigated and determined" in the former proceedings; and that whether the judgment in its actual form was due to the Commissioner's consent or admission or to his neglect, he is bound by the finding of joint ownership which the judgment necessarily involves.' That passage was subsequently cited with approval by the High Court in Rogers v The Queen by Brennan J at 263, in the following context: 'But a court, in ascertaining whether a finding has been made on which an estoppel is raised, is entitled to look not only at the record... but also at any material that shows what issues were raised and decided.' And further at 268, his Honour added: 'If a formal record is unnecessary to raise a plea of res judicata in the strict sense, a fortiori a record is not needed to raise an issue estoppel on a finding not expressed in the ultimate decision in the trial.' At 283 in Rogers , McHugh J observed that issue estoppel relates to 'an ultimate issue in the litigation' , and further that '[n]o estoppel can arise in respect of evidentiary issues even when they are the building blocks in the proof of an ultimate issue' . The difficulty arising in the context of complex fiscal litigation such as the present is isolating what may be merely 'building blocks' . 53 The taxpayer applicants maintained nevertheless the contention that identification of the issue before the Federal Court in the earlier concluded Spassked proceedings, relating of course to the 1992 fiscal year, was 'fundamental' to determining the existence and scope of operation for instance of the operation of issue estoppel, since the ultimate issue before the Court for resolution in the earlier concluded Spassked proceedings was confined in law to deductibility of interest at the instance of Spassked alone, and in relation to the 1992 year of income alone. The taxpayer applicants maintained that issue estoppel may only be raised by or applied against parties who were in controversy at the time when an issue being subsequently pursued was first determined, whether in their favour or adversely to them (as the case may be), and further that if a moving party was not involved in any earlier litigation of that issue, either because it was not a matter the subject of issue between that moving party and the other party to the proceedings, or because the moving party had not been a party at all, then that moving party is not affected by an estoppel, and nor can an estoppel be raised against it. 'Likewise a party's presence [then] or subsequently cannot affect the right of other parties to raise or rely upon issue estoppel as between themselves', so the taxpayer applicants' submissions asserted, reference being made to this Court's decision in Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 358, where Fisher J observed: 'It seems clear to me that issue estoppel can only be raised by or applied against parties who were in " controversy" at the time when the issue was first determined, either in their favour or adversely to them. If a party was not involved in the litigation of that issue, either because it was not an issue between him and another party to the proceedings, or because he was not a party at all to the proceedings at the time of resolution, then he is not affected by nor can he raise an estoppel. Likewise his presence initially or subsequently can not affect the right of other parties to raise or rely upon issue estoppel as between themselves. If the contrary was the case, the public interest in not having the same matters relitigated could with ease be bypassed.' Those observations, in particular in relation to the scope of the notion of ' controversy' and 'party... involved ', need to be read and applied in the light of the more comprehensive exegesis in Blair v Curran earlier extracted in these reasons. 54 The taxpayer applicants' further case, and as matters evolved, their primary case, was that the Commissioner's proposition, to the effect that the doctrine of issue estoppel applies in relation to revenue proceedings, is contrary to 'a long line of authority', and therefore 'misstates the law', in so far as the revenue proceedings the subject of present focus relate to different fiscal years for assessment to that fiscal year to which issue estoppel is sought to be attributed by the Commissioner. In explanation or furtherance of that contention, it was said by the taxpayer applicants that the decisions on income tax, land tax and local government rating assessments constitute exceptions, in that a dispute which is determined by curial decision in respect of one year of taxation is limited to one subject only, being in the case for instance of income tax the amount of the taxable income and the tax payable by the taxpayer in respect of that fiscal year. The taxpayer applicants contended further that because what is decided in disputes about income tax, as well about land tax and other annual fiscal or rating assessments, is inherently limited in that way, even the determination of something essential to the conclusion reached as to the proper amount of assessment for a fiscal year in question is not to be regarded as creating an estoppel for the purposes of an assessment for a different proximate year, which would usually relate to a later year (though not always, as in the case of the 1991 year here in dispute). In support of those broadly framed submissions, reliance was placed by the taxpayer applicants upon several authorities of the Privy Council and the House of Lords, and which were said to stand inconsistently with earlier Privy Council authority, being that of course of Hoysted . 60 The circumstances in Hoysted were that in respect of federal land tax assessable for a particular year upon land vested in trustees of a deceased estate, the trustees claimed seven equal deductions in respect of seven beneficiaries (effectively) upon the footing of the existence of statutory joint ownership for land tax purposes, and therefore as to deductibility depending upon the question as to how many joint owners held original shares for the purposes of the Land Tax Assessment Act 1916 (NSW) notwithstanding that their beneficial entitlement stemmed from the estate of a single deceased testator. The Commissioner of Taxation had disallowed the deductions and the trustees had lodged objections, which were treated as appeals and transmitted to the High Court. The trustees' objections were upheld by the High Court and the appeal allowed. Subsequently on an appeal by the trustees in respect of an adverse assessment which issued for the ensuing fiscal year, the Privy Council reversed what had been a majority decision of the High Court, and held that the Commissioner was estopped from contending that the beneficiaries were not joint owners of the land. Although as I have recorded already, no specific reference was made by the Privy Council in Hoysted to its earlier, albeit then very recent, decision in Broken Hill, the Privy Council having been differently constituted in relation to the two proximately resolved appeals, the reasoning of the Privy Council in Hoysted indicated the undertaking of a wide survey of authority having been nevertheless the subject of submissions . I have already extracted the dictum of Dixon J in Blair v Curran which cited with apparent approval two passages from what appears in the reasons for decision of the Privy Council in Hoysted . I have also already extracted the estoppel finding made by the Privy Council at 299. 71 Purportedly on the basis of authority thus cited, which I have sought to record at some length in deference to and appreciation of the industry inherent in the submissions of counsel for the taxpayer applicants (as well as of counsel for the Commissioner), it was next contended on behalf of the taxpayer applicants that 'whilst Hoysted remains good law in relation to the application of issue estoppel other than to tax cases, it is clear that the decision of the Privy Council in Broken Hill is to be preferred where the issue is the effect of a decision on one year of [taxable] income on litigation over a different year'. The taxpayer applicants further asserted that '[t]he Commissioner cannot put forward any decision in which Hoysted has been cited as authority for the proposition that a decision involving the same or a similar subject matter in one year of assessment of an annual rate or tax creates an estoppel against the taxpayer in respect of another year of assessment'. Yet as I have earlier recorded, the taxpayer applicants as well as the Commissioner appeared to rely on the generality of the phraseology of Lord Shaw in Hoysted to the extent adopted by Dixon J in Blair v Curran at 532 earlier extracted in these reasons, being that 'a fact fundamental to the decision arrived at' in former proceedings and 'the legal quality of the fact', must be taken as finally and conclusively established, so long as any such fact is not subsidiary or collateral. The Commissioner would characterise as a fact fundamental to the earlier concluded Spassked proceedings the findings there made, which I have earlier recorded concerning critical circumstances and features involved in relation to the fiscal years 1988 to 1994, and the inherently consequential implications thereof to deductibility for income tax purposes in respect of the year of income 1992 the subject of resolution by the earlier concluded Spassked proceedings. 112 The taxpayer applicants contended of course for the operation of a per se entitlement to litigate, discretely or cumulatively, in relation to each of the 1991, 1993 and 1994, and apparently also the 1996, fiscal year revenue objections, and the consequential disputes the subject of disallowed objections, in line with those English decisions of high authority. Bearing in mind those distinguishing jurisdictional features, and as the Commissioner moreover rightly observed, if the taxpayer applicants were to be permitted to raise for redetermination each and all of the same substantive issues, or virtually so, that were raised, considered and determined in the earlier Spassked proceedings, albeit that the latter proceedings were geared and related to a different fiscal year (ie 1992), being issues principally as to the purpose of relevant borrowings, and as to the use or otherwise of borrowed funds in activities carried on for the purpose, or otherwise in the course of gaining or producing assessable income, and if the taxpayer applicants were to be successful in any such further proceedings against the Commissioner, there would be on record, as I have already mentioned, what would be inconsistent or substantially inconsistent reasons for judgment of the Federal Court. All that would constitute situations well removed, conceptually as well as contextually, from that involved for instance in Saffron . Moreover there was reversed by the Privy Council's decision in Broken Hill what had been an earlier decision of a Full Bench (by majority) of the High Court of Australia, and there was inconsistency between that decision of the Privy Council and the almost contemporaneous Privy Council decision in Hoysted , involving an appeal which also emanated from Australia . Moreover as has been further mentioned, Hoysted was applied by the Full Court in Chamberlain (though the principal judgment of the High Court in Chamberlain cited Caffoor though briefly and not in any controversial context), and Caffoor and Hope did not involve appeals from Australia. Furthermore Dixon J (as he then was) in Blair v Curran cited Hoysted , not irrelevantly in terms of the scope of principle here the subject of scrutiny. The High Court in Falk , without expressing any preference, pointed to the dilemma in reconciling Broken Hill with Hoysted. More directly of assistance to the Commissioner's case moreover was the favourable approach taken to Hoysted adopted by those three members of the High Court in Queensland Trustees who made reference to Hoysted. In all those circumstances, the emphatic approach adopted by the taxpayer applicants in the present proceedings as to the operation authoritatively of the Privy Council decisions in Broken Hill , Caffoor and Hope might be thought to have at best debateable viability, particularly if account be also taken of the nature and extent of the jurisdiction and functions exercised by the tribunals etc from where at least the litigation in Caffoor and Hope originated. 114 As to the further operation of the doctrine of estoppel generally, the earlier concluded Spassked litigation, albeit litigated in the immediate context of the 1992 fiscal year alone, extended in at least legitimate evidentiary scope to circumstances falling within relevant periods of time both preceding and following that fiscal year, such as to encompass each of the six fiscal years the subject of present critical disputation. I use that expression to describe when the operation here of s 51(1) took effect, and not when the losses sustained were transferred by Spassked to IEF or QTH (as the case may be). The Commissioner has a viable basis for the case articulated to the effect that at issue in the earlier concluded Spassked proceedings, both at first instance and on appeal, was whether '... the occasion of each outgoing of interest was to be found in those shares being deliberately non-income producing for the foreseeable future', that articulation being related to the six fiscal years from 1988 to 1994. Once that finding is open and should be made, so much operates to impute relevantly at least an Anshun estoppel in favour of the Commissioner, and I think also an issue estoppel. I have already extracted material reflective of the implementation, on Spassked's part, of that vitiating objective or purpose on Spassked's part in terms of s 51`(1) of the Tax Act. The Spassked decision at first instance and on appeal has finally and conclusively established the basis for upholding the Commissioner's strike-out application, to paraphrase to the extent in particular italicized the description of Dixon J in Blair v Curran at 532-533, albeit articulated in the context of discussion of issue estoppel. That juridical expression may be contrasted with what was described by the Privy Council in Hoysted at 304 as '... a matter... only incidentally or collaterally related to the point actually discussed and litigated'. 115 As to whether the estoppel which here took effect, strictly speaking as an Anshun estoppel or an issue estoppel, to the exclusion of one from the other, raises the initial appearance of a somewhat moot point. Consistently however with the reasoning I have thus far sought to articulate generally in my approach to the taxpayer applicants' case, I think that the preferred analysis should perhaps be that of issue estoppel rather than Anshun estoppel, if a choice between the two is mandatory. That is because what arose as the central issue in the earlier concluded Spassked proceedings, and in relation to which the general body of evidentiary material was directed, was the nature and extent of Spassked's business operations and activities for the six fiscal years 1988 to 1994, albeit in order to determine the implications of those operations and activities to the 1992 fiscal year. The business operations of Spassked from 1 July 1991 to 30 June 1992 did not of course occur in a business vacuum in any operational sense, but in the wider context of continuing business activities undertaken over at least those six fiscal years inclusive of the 1992 fiscal year. In those circumstances I would characterise as the issue in substance and reality arising, in relation to which the earlier Spassked proceedings were conducted, as related to and bearing upon the scope of those fiscal years inclusive at least of the 1992 fiscal year. The description of Dixon J in Blair v Curran accommodates the resolution of that issue in favour of the Commissioner, for the reasons I have already outlined. 117 The Commissioner's case for summary judgment is required in principle to be ' clearly demonstrated ', and ' very clear indeed ', and is inhibited by the need for ' exceptional caution ' by the Court ( General Steel and Dey ). As I have earlier recorded, the Commissioner's case is not sought to be established on the footing of the doctrine of res judicata as applied in the common law of Australia, and which normally involves the merger of causes of action into judgments (compare Henderson at 114-115). Apart from abuse of process, the Commissioner's case is founded upon the doctrine of issue estoppel as well as Anshun estoppel, as those doctrines have been formulated and applied in Australia by judicial dicta . In the case of issue estoppel, I have earlier cited the well known dictum of Dixon J in Blair v Curran to the effect that it is necessary to expose ' a state of fact or law... alleged or denied the existence of which is a matter necessarily decided by the prior judgment', being a matter ' fundamental to the decision arrived at' , and not merely matters of fact or law which are ' subsidiary or collateral ', or 'concern only evidentiary facts and not ultimate facts... '. 118 Further as to the operation in Australia of both issue and Anshun estoppels, the latter having been described by Gleeson CJ in Murphy at 286 as ' a wider form of estoppel' , the Commissioner contended that the critical findings of the earlier concluded Spassked proceedings I have extracted also related to or involved 'ultimate facts which form ingredients in the cause of action' ( Blair v Curran at 532), and which were so closely connected with the subject matter of the earlier concluded Spassked proceedings that it was to be expected that the same would be subsequently relied on by the Commissioner in relation to fiscal years additional to 1992 (see again the full context of the dicta I have earlier cited from Anshun and Henderson ). I further bear in mind that issue estoppel operates in relation not just to the prior litigating parties but also to their respective privies ( Rogers ), and hence persons or entities claiming under or through or by virtue of the legal rights of such parties ( Effem ). I think that it should be concluded that each of the taxpayer applicants qualify as privies of each other, and of their common wholly owning parent IEL, for the purposes of the operation of doctrines as to issue estoppel and Anshun estoppel, being a qualification in any event not seemingly required to be fulfilled in the case of the wider and more comprehensive notion of abuse of process. Each of IEL and its wholly owned subsidiaries here involved, being of course each of the taxpayer applicants, was subjected to the evident decision-making corporate mind of IEL as parent company.