Case: Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: discussed
summary, the respondents submit, first, that the claims or some of the claims made in this proceeding could only have been made in the Supreme Court Proceeding, and, second, that the subject matter of this proceeding properly belonged to the Supreme Court Proceeding so that the applicants are precluded from pursuing this proceeding by reason of the principle commonly associated with Henderson v Henderson [1843] EngR 917 ; (1843) 3 Hare 100 (67 ER 313) and Port of Melbourne Authority v Anshun Proprietary Limited [1981] HCA 45 ; (1981) 147 CLR 589 ( Anshun ). As noted earlier, the respondents submit that some of the claims made by the applicants in this proceeding could only have been asserted in a taking of partnership accounts. The respondents have not, however, adequately identified the claims said to be of that kind. The respondents accept that there are other claims made by the applicants in this proceeding that could not have been addressed as part of a taking of partnership accounts, and submit that those claims should have been advanced by cross-claim in the Supreme Court Proceeding in accordance with what I shall describe as "the Anshun principle". The respondents submit that the claims of the second kind are so intertwined with those of the first kind that both kinds should have been dealt with in the Supreme Court Proceeding. In my opinion, the respondents' submissions gloss over many difficulties. In the first place, as noted earlier, there were two partnerships. There was the partnership between BCPL as trustee and HCPPL as trustee constituted by the MoU dated 25 November 2004 (the Earlier Partnership) and in the second place, at least according to Mr Carroll and apparently accepted in the Supreme Court Proceeding by BCPL, there was a partnership between Mr Carroll and BCPL from 30 September 2005 down to the time of the termination or dissolution of that partnership, whenever that was (the Later Partnership). I turn now to Anshun . According to Anshun , the question to be asked in Australia in relation to the respondents' second ground of attack is not whether the claims advanced in the later proceeding "could" more conveniently have been advanced in the earlier proceeding. The test is not whether it would have been more efficient and less wasteful, in terms of judicial and other resources, if the issues in the later proceeding had been made the subject of the earlier proceeding. Anshun itself was a case of inconsistency between the determination of the earlier proceeding and the making of a claim in the later proceeding a circumstance that does not attend the present case. In Anshun , a workman was injured in the course of his employment when a load of girders handled by a crane being used by Anshun Pty Ltd (Anshun) and hired from the Port of Melbourne Authority (Authority) struck him. Under the crane hiring agreement, the Authority enjoyed an indemnity by Anshun in relation to any injury arising directly or indirectly out of the use of the crane during the hiring period. The workman sued the Authority and Anshun. They claimed contribution from each other. The Authority's contribution notice, however, did not claim the indemnity. In the earlier proceeding, judgment was entered in the action against both defendants with costs, and it was ordered that Anshun should recover from the Authority contribution to the extent of 90% and the Authority from Anshun to the extent of 10% of those damages and costs. In the later proceeding, the Authority sued Anshun under the indemnity agreement to recover the amounts that the Authority had paid as damages and interest and for legal costs and disbursements. The primary Judge ordered that the Authority's proceeding be perpetually stayed on the ground that the Authority should have pleaded the indemnity in the earlier litigation. It will be seen that the determination of the cross-claims in the earlier proceeding decided the question of the extent of the liabilities inter se of Anshun and the Authority. It would be inconsistent with that determination for the Authority to be held entitled to recover 100% in the later proceeding. As Gibbs CJ, Mason and Aickin JJ noted, in the later proceeding the Authority asserted a right inconsistent with the right asserted in the earlier proceeding. The circumstances and issues in Anshun are far removed from those of the present case. In Tanning Research Laboratories Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332 , Brennan and Dawson JJ stated (at 345) that it may be that Anshun is a case of mere issue estoppel. Pertinently for the present case, their Honours said (at 346): A plaintiff who has an unadjudicated cause of action which can be enforced only in fresh proceedings ( Duedu v Yiboe [[1961] 1 W.L.R. 1040, at p.1046] cannot be precluded from taking fresh proceedings merely because he could have and, if you will, should have counterclaimed on that cause of action in a forum chosen by the opposite party in proceedings in which the opposite party sued him. We do not read the majority judgment in Port of Melbourne Authority v. Anshun Pty. Ltd. as holding the contrary, except in a case where the relief claimed in the second proceeding is inconsistent with the judgment in the first: see especially at pp. 599-601. That is not the present case. [My emphasis] The passage emphasised is applicable to the circumstances of the present case. Like Anshun , the case raised an issue of inconsistency. Whether the farm was or was not partnership property lay at the heart of the Master's inquiry and must be taken to have been determined by the Master's certificate.