Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: applied
The respondent submitted further that the applicant is precluded from bringing the claims made in the application by reason of the principles enunciated in the case of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 ('Anshun') . The respondent submitted that the claims now made properly belonged to the earlier proceedings. This is because the claims are based on a factual allegation, namely, that the applicant made and provided to the respondent a statement of affairs on 7 October 1991, which was of crucial significance to the issues in contention in the previous litigation, and that it was open to the applicant to have advanced such a claim because there was evidence available to be presented. It was further submitted that the legal representatives of the applicant elected not to advance any case founded on the existence of a statement of affairs allegedly made on 7 October 1991 in any of the previous proceedings. It was, therefore, unreasonable for the applicant not to have made the factual allegation now made in this application, as part of any one or more of the previous proceedings. 56 The respondent also submitted that the claims made in the substantive application rendered the application an abuse of process. 57 Further, the respondent submitted that the applicant's claim made by reference to s 33A of the Act in par 4 of the substantive application, was, in any event, misconceived. It was submitted that although s 33A of the Act was enacted after the conclusion of the proceedings in 2000, the section did not assist the applicant. This was because s 33A(3) of the Act contains a restriction which precludes the Court from making an order which would result in the discharge of the bankruptcy occurring at a date earlier than 30 days after the making of the Court order. It was not possible, therefore, for the applicant to obtain an order which would treat the alleged 7 October 1991 statement of affairs as having been filed in October 1991, because this would have the effect of backdating the discharge to a date in October 1994. Relief under s 33A of the Act was, therefore, only open to a bankrupt who had not yet been discharged from bankruptcy. 66 As to the respondent's arguments that these proceedings are res judicata, the claims made in these proceedings are founded upon a different allegation of fact which formed the basis for the claims which were considered by Lee J and the Full Court in 1997 and 2000. For this reason, I would also not summarily dismiss the application on the basis that the matter is res judicata ( Anshun at 597). No argument was addressed to me that there was an issue estoppel in relation to the date of the first attempt made to comply with s 54 of the Act after the date of sequestration. 67 The Anshun estoppel principles have recently been considered by the Full Court of this Court in the case of Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 ; (2005) 146 FCR 10 ('Wong') . The Full Court said that the doctrines of res judicata and issue estoppel are founded on the broad rules of public policy that a person ought not to be vexed twice for one and the same cause and that it was in the public interest that there be an end to litigation. At 17-18, at [36]-[37] the Full Court went on to say: '...It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue. A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 598 and 602. Anshun estoppel arises where the issue, now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding. In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceedings between the parties: Anshun at 602.'