mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Baines v State Bank of NSW (1985) 2 NSWLR 729
Outcome: cited
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.
Case: Bell Wholesale Co Pty Ltd v Gates Export Corporation (No 2) (1984) 2 FCR 1
Outcome: applied
I turn then to the respondents' application for security for costs. The power to order security arises under s 56(1) of the Federal Court of Australia Act 1976 (Cth), the discretionary exercise of which is not limited to the particular circumstances set out in O 28 r 3(1) of the Rules of Court: Bell Wholesale Co Pty Ltd v Gates Export Corporation (No 2) (1984) 2 FCR 1, 2-3. Mr Frenkel drew my attention to the list of considerations referred to in Equity Access Limited v Westpac Banking Corp (1989) ATPR 40-972. Those matters are the applicant's chances of success, whether the order would shut out the applicant from pursuing its claim, whether the applicant's impecuniosity arose out of the breaches alleged against the respondent, the public interest, discretionary matters peculiar to the present case and the risk that the applicant would not be able to satisfy an order for costs.
Case: Clout v Klein [2001] QSC 401
Outcome: considered
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.
Case: Equity Access Limited v Westpac Banking Corp (1989) ATPR 40-972
Outcome: applied
I turn then to the respondents' application for security for costs. The power to order security arises under s 56(1) of the Federal Court of Australia Act 1976 (Cth), the discretionary exercise of which is not limited to the particular circumstances set out in O 28 r 3(1) of the Rules of Court: Bell Wholesale Co Pty Ltd v Gates Export Corporation (No 2) (1984) 2 FCR 1, 2-3. Mr Frenkel drew my attention to the list of considerations referred to in Equity Access Limited v Westpac Banking Corp (1989) ATPR 40-972. Those matters are the applicant's chances of success, whether the order would shut out the applicant from pursuing its claim, whether the applicant's impecuniosity arose out of the breaches alleged against the respondent, the public interest, discretionary matters peculiar to the present case and the risk that the applicant would not be able to satisfy an order for costs.
Case: Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Outcome: cited
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.
Case: Hart v Hall &amp; Pickles Ltd [1969] 3 All ER 291
Outcome: cited
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.
Case: Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Outcome: cited
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.
Case: Pople v Evans [1969] 2 Ch 255
Outcome: cited
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.
Case: Rippon v Chilcotin Pty Ltd [2001] NSWCA 142 ; (2001) 53 NSWLR 198
Outcome: cited
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.
Case: Samuels v Linzi Dresses Ltd [1981] QB 115
Outcome: cited
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.
Case: Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Outcome: cited
The finding which I have just made does not, however, mean that the respondents succeed on their abuse of process arguments. Their difficulty, as Mr Frenkel frankly acknowledged, was that the present circumstances do not fit neatly within any recognised category of abuse. Mr Frenkel referred me to the statement by French J in Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275, 279 that "the possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed." With respect, I agree; but I cannot, as at present advised, envisage the circumstances in which I, sitting as a single Judge, would take it upon myself to create a new category, and I do not understand Mr Frenkel to have submitted that I should. Rather, while accepting that the facts of the present case were not on all fours with those of any binding or persuasive authority, he submitted that the principles which informed the decided cases should likewise lead to the conclusion that the applicant's conduct in commencing the present proceeding constituted an abuse of process.
Case: Williams v Hunt [1905] 1 KB 512
Outcome: distinguished
Moving to a somewhat different line of authority, it is at least regarded prima facie as an abuse of process for a moving party to vex his or her opponent by instituting multiple proceedings to right a single wrong. In Williams v Hunt [1905] 1 KB 512, the Court of Appeal restored the order of a master in the Kings Bench Division to stay an action on a specially indorsed writ claiming principal and interest under a covenant in a mortgage deed, when there was waiting for trial in the Chancery Division an earlier proceeding in which the same plaintiff claimed, in relation to the same mortgage, an account, payment of the sum found to be due, and in default, sale or foreclosure. Collins MR said (at 514): "Where two separate remedies are possible, and a start is made by putting in force one of those remedies by a writ which would entitle the plaintiff to the relief he subsequently desires, he cannot by deliberately leaving that out of his claim reserve his right to ask for it in another proceeding. Where proceedings have been started, it is an abuse of the process of the Court to divide the remedy where there is a complete remedy in the Court where the suit was first started." Stirling LJ was of the same opinion (at 515). 42 In the present case, were it not for one factor to which I shall turn next, I would consider that the commencement of the present proceeding was an abuse of process in the sense of being a course preferred by the applicant over what I would regard as the more obvious, more convenient, less costly and less vexing expedient of seeking to make the necessary amendments to the pleadings in the Victorian proceeding. The applicant was, as plaintiff in the Victorian proceeding, suing to achieve compensation for the very loss around which this proceeding is constructed. It was suing the same parties as are respondents here. Broadly speaking, it was putting the same series of transactions in 2000 into controversy. Had the Victorian proceeding still been on foot when this proceeding was commenced, I would have regarded the present case as covered by Williams v Hunt and Moore v Inglis .
Case: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509
Outcome: considered
The judgment of the High Court in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 is often regarded as the leading Australian authority on abuse of process. The particular concept of abuse with which that judgment was concerned, however, was that of commencing and prosecuting proceedings for a purpose collateral to that for which the proceedings were designed: 174 CLR at 526-527. The Court was there concerned with the kind of case in which court proceedings are used as an instrument of oppression in the sense of seeking to achieve some collateral end rather than to vindicate the moving party's legitimate legal rights for which proceedings of the relevant kind were intended. A ready answer to the present problem is not provided by Williams v Spautz . It could not be suggested that the applicant had any purpose collateral to that achievable under s 52 of the Trade Practices Act in mind when the present proceeding was commenced. It is true that, as I have held, it was commenced as a separate proceeding because the more obvious expedient of seeking to amend the Victorian proceeding was unattractive. But on no view could it be asserted that the applicant is seeking to achieve some object extraneous to the rights and protections which it claims to have under the Trade Practices Act .
Case: Wilson v Commonwealth of Australia [1999] FCA 1308 
Outcome: cited
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.
Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: cited
Telstra seeks a declaration that ' the decision of [the Commission] made on or about 12 April 2006 under section 151AKA ' of the Act to issue the Competition Notice was invalid. Telstra submits that it has ' a real interest in a clearly defined, straightforward declaration ' ( Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 582). 98 The Commission submits that the appropriate declaration is that, in the events that have happened and in the circumstances of this case, the Commission was not entitled to issue the Competition Notice. The Commission submits that the decision to issue the Competition Notice in the form in which it was issued did not, in and of itself, affect Telstra's rights in any way or have any statutory consequences; it was the issue and service of the Competition Notice that was defective. 99 Telstra relies on s 163A of the Act which relevantly provides: (1) Subject to this section, a person may, in relation to a matter arising under this Act... [seek] the making of: (aa) a declaration in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under this Act. 100 The act or thing done under the Act was the issue of the Competition Notice. The words "in relation to" in s 163A have wide import but the subject to which the declaration relates is the validity of the issue of the Competition Notice, not the anterior decision to issue that notice, which was not done under the Act. Section 151AKA of the Act is not concerned with the decision to issue the Competition Notice but with the issue of and content of the Competition Notice and the preceding notice under s 151AKA(10), the Consultation Notice. 106 Telstra also relies on s 16(1)(a) of the ADJR Act, which does not provide for a declaration of invalidity. As an alternative to a declaration, Telstra now seeks an order quashing the decision. Telstra points out that it was denied natural justice in the making of the decision. Telstra submits that the Commission's decision has consequences for its reputation. In those circumstances, it submits, it is appropriate that a declaration be made ( Ainsworth at 582). However, apart from the fact that a decision was made to issue the invalid Competition Notice, there is no evidence that the decision had an effect or the consequences alleged.
Case: Applicant VEAL of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88
Outcome: cited
Further, Telstra was not given a reasonable opportunity to consult, or to comment and make submissions, or to change its conduct to avoid the issue of the Competition Notice ( Telstra No 2 at [181]). The statutory scheme and common law principles afforded such a right. Telstra was, therefore, denied procedural fairness in the issue of the Competition Notice. The fact that the Commission could have issued a different Part A competition notice, such as the one now proposed, does not discharge the Commission's obligation to give Telstra procedural fairness ( Applicant VEAL of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at [18] ). 64 Section 2 of the Interpretation Act provides that the Interpretation Act applies to all Acts subject to a contrary intention. Subject to a contrary intention the Competition Notice is an instrument which is considered an Act for the purposes of the Interpretation Act and s 46(1) applies (s 46(1)(a)). The Commission submits that any contrary intention for the application of s 46 must be found in the instrument. The parties do not submit a contrary intention is apparent in the Competition Notice. 65 Whether or not there is a contrary intention apparent in the Competition Notice, an indication of contrary intention is not limited to the instrument. It may be apparent from the legislation authorising the making of the instrument.
Case: Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284
Outcome: cited
It is not disputed that the Competition Notice is an instrument to which s 46 applies because: (a) Section 151AKA(2) of the Act specifies the power to issue a Part A competition notice. (b) The power is expressly conferred on the Commission, which is a body established by s 6A(1) of the Act and which is a statutory agency under the Public Service Act 1999 (Cth) ( Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at [135] per Wilcox J). The Commission is therefore an "authority" for the purposes of s 46 of the Interpretation Act . (c) The relevant power is the power of the Commission to issue a document, namely the Part A competition notice, which is an "instrument" (Shorter Oxford English Dictionary, Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284 at 299-300 per French J; Collector of Customs (NSW) v Lawlor (1979) 24 ALR 307 at 313 and 323-324 referred to in Evans v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 945 at [22] per Merkel J). (d) A Part A competition notice is not a legislative instrument under the Legislative Instruments Act as it is not legislative in character, nor is it a rule of Court.
Case: Collector of Customs (NSW) v Lawlor (1979) 24 ALR 307
Outcome: cited
It is not disputed that the Competition Notice is an instrument to which s 46 applies because: (a) Section 151AKA(2) of the Act specifies the power to issue a Part A competition notice. (b) The power is expressly conferred on the Commission, which is a body established by s 6A(1) of the Act and which is a statutory agency under the Public Service Act 1999 (Cth) ( Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at [135] per Wilcox J). The Commission is therefore an "authority" for the purposes of s 46 of the Interpretation Act . (c) The relevant power is the power of the Commission to issue a document, namely the Part A competition notice, which is an "instrument" (Shorter Oxford English Dictionary, Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284 at 299-300 per French J; Collector of Customs (NSW) v Lawlor (1979) 24 ALR 307 at 313 and 323-324 referred to in Evans v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 945 at [22] per Merkel J). (d) A Part A competition notice is not a legislative instrument under the Legislative Instruments Act as it is not legislative in character, nor is it a rule of Court.
Case: Darling Casino Limited v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186
Outcome: cited
A distinction is also to be drawn between, on the one hand, questions of severance which involve an excess of power so that the ultra vires portion of an instrument can be severed and the intra vires portion preserved and, on the other hand, a lack of power to make the whole instrument by reason of a failure to comply with the consultation provision in a statute ( Darling Casino Limited v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186). As Pearlman CJ observed in Darling Casino at 207, if the power was improperly exercised, the instrument is invalid in its totality. It is no answer that part of it could have been validly made.