Case: Port of Melbourne Authority v Anshun Pty Ltd (No 1) [1980] HCA 41 ; (1981) 147 CLR 35
Outcome: cited
In Port of Melbourne Authority v Anshun Pty Ltd (No 1) [1980] HCA 41 ; (1981) 147 CLR 35 (' Anshun (No 1) '), the Court was concerned with an appeal from the Full Court of the Supreme Court of Victoria which had upheld an order of McGarvie J staying forever an action by the Port of Melbourne Authority in relation to a claim by way of indemnity. His Honour had ordered a stay because he thought that it was an abuse of process to raise in subsequent proceedings matters which could and reasonably should have been litigated in earlier proceedings. 36 Gibbs J, with whom Mason and Murphy JJ agreed, said at 38: ' In support of the objection to competency before us, Mr. Griffith naturally relied upon the decision of the Privy Council in Tampion v. Anderson (1973) 48 A.L.J.R. 11; 3 A.L.R. 414, where it was held that an order staying an action on the ground that it is frivolous, vexatious and an abuse of the process of the court is an interlocutory judgment. Their Lordships in the course of their reasons refer to a number of authorities, but none of those authorities was a case in which a stay had been granted on the ground that there was an estoppel of the kind which McGarvie J. found to have been raised in the present case. If the view expressed in Licul v. Corney (1976) 50 A.L.J.R., at p. 444 is correct, and the true test of finality is whether the judgment or order, as made, finally disposes of the rights of the parties, it would seem clear that the order made in the present case was a final judgment. It is not necessary to consider whether the view expressed in Tampion v. Anderson is one which is consistent with the view taken in the Australian authorities. There may well be a difference between a case in which the action is frivolous or vexatious in the ordinary sense, or in which the proceedings disclose no reasonable cause of action, and a case in which the abuse of process lies in an attempt to litigate an issue which is res judicata, and Tampion v. Anderson has nothing to say about a case of the latter kind.' 41 Kenny J said: '6 The distinction between an interlocutory and final judgment is not always a clear one. In this case, however, the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd (No 1) [1980] HCA 41 ; (1980) 147 CLR 35 (" Anshun (No 1) ") provides an authoritative answer. In Anshun (No 1) , the High Court unanimously held that an order that a proceeding be stayed as an abuse of process on the grounds of estoppel and res judicata was a final judgment, for the purposes of appeal. The approach of the High Court in Anshun (No 1) is equally applicable in relation to applications for leave to appeal in this Court: see, e.g., The Lardil Peoples v State of Queensland [2001] FCA 414 ; (2001) 108 FCR 453 at 480 [85] - [86] per Dowsett J. Anshun (No 1) applies with even stronger force in this case than in case of The Lardil Peoples , because the proceeding from which the current appeal is brought was dismissed on the same bases as in Anshun (No 1) .' 43 The disagreement amongst judges was adverted to by Selway J in S1000 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 285 where he said: '2 The original application made by the applicant was by Notice of Appeal. There may be some disagreement in the cases as to whether an order dismissing an action on the basis that it is vexatious and or an abuse of process is an interlocutory order, contrast Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at 4, [9] , and Port of Melbourne Authority v Anshun [1980] HCA 41 ; (1980) 147 CLR 35. As the decision of the High Court in Re Luck is the most recent, I should follow it. This is consistent with other recent practice in this court. I refer, for example, to the decisions of the Full Court of this Court in Wride v Schulze [2004] FCAFC 216 , Lindsey v Philip Morris Limited [2004] FCAFC 40 , and in Johnson Tiles Pty Limited v Esso Australia Pty Limited [2000] FCA 1572 ; (2000) 104 FCR 564, [43].'