Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: considered
Mr Frenkel relied upon the judgment of the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589. But Anshun estoppel, as the principle for which that case stands is sometimes called, is concerned with the ability of a party in later proceedings to rely upon a point of claim or defence which was so relevant to the matters adjudicated upon in earlier proceedings to which that party was also a party that it would have been unreasonable not then to have relied on it. As is apparent from the statement in Henderson v Henderson (1843) 3 Hare 100, 115 which the High Court regarded as stating the law, the principle applies only where there has been an adjudication by the Court in the earlier proceedings. Anshun does not stand as authority for the proposition that it is an abuse of process to make a claim in a later proceeding that could have been made in an earlier proceeding, where the earlier proceeding has been stayed or dismissed without adjudication. 32 There is, of course, no shortage of authority for the proposition that it is an abuse of process for a party to seek to contest, in later proceedings, a point which it has lost, or substantially lost, in earlier proceedings, even where there may not be complete overlap between all facts, parties, and causes of action: see eg Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; Wilson v Commonwealth of Australia [1999] FCA 1308 ; Rippon v Chilcotin Pty Ltd [2001] NSWCA 142 ; (2001) 53 NSWLR 198; However, these authorities, like Anshun , speak only of situations in which the earlier point was actually decided by the court concerned. 33 By contrast, there is no res judicata nor, as I understand the law, Anshun estoppel, when the earlier proceedings have been discontinued. In relation to res judicata at least, the same conclusion applies when the earlier proceedings have been dismissed on account of default in compliance with orders for discovery ( Baines v State Bank of NSW (1985) 2 NSWLR 729), on account of default in the provision of particulars ( Samuels v Linzi Dresses Ltd [1981] QB 115) or for want of prosecution ( Hart v Hall &amp; Pickles Ltd [1969] 3 All ER 291; Pople v Evans [1969] 2 Ch 255). The question with which these cases do not deal, however, is whether, notwithstanding that there would be no res judicata , it might nonetheless be regarded as vexatious, and in that sense as an abuse of process, for a moving party, by his or her own default, to allow proceedings to be terminated, without adjudication, to his or her disadvantage, and then to bring new proceedings seeking the same remedy on closely related grounds. 35 The proposition that the later proceedings in Deangrove might have been regarded as an abuse of process not in the sense of demonstrating contumely but in the sense of an attempt to relitigate a matter which had previously been the subject of a final order disposing of identical proceedings appears not to have been the way the matter was put to Sackville J. That proposition was put to Holmes J in Clout v Klein [2001] QSC 401. There the earlier proceeding had been terminated not by a self-executing order but by a direct order of a Judge of the court. The ground which sustained the order, however, was that the plaintiffs in that proceeding had failed to comply with an order for security for costs. His Honour referred (at [44]) to some cases in which the application of the Anshun principle to situations in which there had been no adjudication had been doubted; doubts which, in my respectful view, would almost always be regarded as well-founded. However, on the facts, his Honour held that it was not unreasonable for the plaintiff which was common to both proceedings not to have raised the relevant claim in the earlier proceeding. 41 The cases to which I have most recently referred above, especially Moore v Inglis , show that the question whether a later proceeding is an abuse of process because of similarity with an earlier, extant, proceeding is not concluded in the negative merely because the parties, the causes of action, the specific relief sought, or even the forensic issues which may arise, are not identical. In that case Mason J held that the later proceeding was abusive notwithstanding that, to accommodate all its elements, some amendments to the earlier proceeding might be required. The important, perhaps critical, point was that the court in which the earlier proceeding was commenced had jurisdiction to deal with everything raised in the later proceeding and there was no reasonable justification, based on legitimate considerations of convenience, cost or the like, for commencing the second proceeding rather than seeking to amend the earlier. One sees the same underlying values as to the requirements of a fair and efficient system for the administration of justice here as are to be seen, in a different but analogous context, in Anshun . 43 However, the Victorian proceeding was dismissed on 9 February 2006 the very day on which the present proceeding was commenced as a result of the operation of the self-executing order which Mandie J had made in September 2005. This takes the present situation, in my view, out of the Moore v Inglis line of authority. The evil with which the principle in such cases is concerned arises where a plaintiff tries to have a foot in each camp, as it were, by keeping more than one proceeding alive at the same time. I am not aware of any instance in which the same or an analogous principle has been applied to a situation of successive, rather than concurrent, proceedings. In the case of successive proceedings, it may be that the plaintiff in the later proceeding will be met by a successful plea of res judicata or of Anshun estoppel; or it may be shown, on the facts, that the commencement of the later proceeding revealed a contumacious disregard for the authority of the court, or of another court. But, absent any of these situations, there is no established basis upon which I should regard the commencement of a later proceeding making the same or similar claims as those previously, or even contemporaneously, disposed of in an earlier proceeding by a self-executing order as necessarily amounting to an abuse of process.