Bennelong Medical Pty Ltd v Commissioner of Taxation (No 4)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Bennelong Medical Pty Ltd v Commissioner of Taxation (No 4)
Citation:	[2024] ACTSC 190
Hearing Date:	10 May 2024
Decision Date:	18 June 2024
Before:	Loukas-Karlsson J
Decision:	Application dismissed with costs
Catchwords:	PRACTICE AND PROCEDURE – Leave to represent a corporation to start and carry out proceeding – rule 30(4)(b) of the Court Procedure Rules 2006 (ACT) – self-represented litigant – sole director, secretary, and shareholder – previous application for leave refused – appeal to Supreme Court dismissed – appeal in Court of Appeal struck out – whether current application is an abuse of process – whether current application is precluded by Anshun estoppel – current application drafted in same terms as previous application – no material change in evidence – abuse of process found – application dismissed with costs
Legislation Cited:	Court Procedure Rules 2006 (ACT) rr 6, 30(4), 30(4)(b), 425, 1506, 5310, 5403(1)(f), 5403(2) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.07, 9.04 Federal Court Act 1976 (Cth) s 32AB Supreme Court Act 1933 (ACT) s 37E Taxation Administration Act 1953 (Cth) s 8AAZLGA
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Bennelong Medical Pty Ltd v Commissioner of Taxation [2023] ACTSC 74 Bennelong Medical Pty Ltd v Commissioner of Taxation (No 2) [2023] ACTCA 28 Bennelong Medical Pty Ltd v Commissioner of Taxation (No 3) [2023] ACTCA 37 Clayton v Bant [2020] HCA 44; 272 CLR 1 Ede v Hyde [2014] ACTSC 305 Findex Group Limited v McKay [2022] ACTSC 192 Forge v Australian Securities and Investment Commission (No 2) [2007] NSWCA; 69 NSWLR 575 Islam v The Queen [2017] ACTCA 10 Kenny v Ritter [2009] SASC 139; 52 MVR 360 Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160 Manny v David Lardner & Associates (No 2) [2019] ACTSC 86 Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139 QE Family Pty Ltd v Peter Warren Automotive [2024] FedCFamC2G 172 Quach v ATM Residential Pty Ltd [2022] ACTSC 210 Quach v Butt [2016] ACTSC 153 Quach v MLC Life (No 1) [2019] FCA 1194 Quach v MLC Life (No 3) [2019] FCA 2066 Quach v MLC Life (No 4) [2020] FCA 532 Russo v Kogarah Municipal Council [1999] NSWCA 303; 105 LGERA 290 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 UBS AG v Tyne [2018] HCA 45; 265 CLR 77 Yager v The Queen (1977) 139 CLR 28 Zetta Jet Pte Ltd v The Ship “Dragon Pearl” (No 2) [2018] FCAFC 132; 265 FCR 290
Parties:	Bennelong Medical Pty Ltd ( Plaintiff) Commissioner of Taxation ( Defendant)
Representation:	Counsel Self-represented ( Plaintiff) J Moffett ( Defendant)
Solicitors Self-represented ( Plaintiff) Australian Government Solicitor ( Defendant)
File Number:	SC 1 of 2023

LOUKAS-KARLSSON J:

Introduction

1․This is an application for leave by Dr Michael Van Thanh Quach (the applicant) to represent and carry out an action on behalf of Bennelong Medical Pty Ltd (the plaintiff) against the Commissioner of Taxation (the defendant), which I will call the “current application”. Leave is sought under r 30(4)(b) of the Court Procedure Rules 2006 (ACT) (CPR):
Who may start and carry on a proceeding30
…
(4) A corporation may start and carry on a proceeding in the Supreme Court—
…

(b)with the court’s leave, by an officer or employee of the corporation authorised by the corporation to represent it.

2․The applicant is self-represented in this case.
3․It was not in dispute that the applicant is the sole director, shareholder, and alter-ego of the plaintiff. Similarly, it was not disputed that the applicant had authorisation from the plaintiff to represent it.
4․Rather, the ultimate issue in this application is whether leave should be granted in light of the fact that this is not the first time the applicant has applied for leave under r 30(4).
5․For the following reasons, I would dismiss the application with costs.

Procedural History

6․It is instructive to first set out the procedural history of this matter. There are previous decisions of this Court and the Court of Appeal. For clarity and convenience, I will continue to refer to the parties as “applicant” (Dr Quach), “plaintiff” (Bennelong Medical Pty Ltd) and “defendant” (Commissioner of Taxation) when discussing the proceedings in the Court of Appeal.
7․In January 2023, the applicant filed on behalf of the plaintiff an originating application (the original application). The original application appears to have been filed on 5 January 2023 and relodged on 16 January 2023. It sought the following relief:
Ruling pursuant to the High Court ruling in Yager v The Queen (1977) 139 CLR 28, 43 and Quach v Butt [2016] ACTSC 153 at [13],
There is, therefore, no legitimate foundation for resorting to the definitions [expense] contained in the [Taxation Administration Act 1953 (Cth)] for the purpose of modifying or qualifying another statutory definition [R&D expenses] contained in [Income Tax Assessment Act 1997 (Cth)] a different Act of Parliament.

8․On 16 January 2023, the applicant also filed an application for leave for an officer of the corporation authorised by the corporation to represent it under r 30(4)(b) of the CPR (the 16 January 2023 application). Importantly, this is the same relief sought in this proceeding. The application did not provide further detail as to the grounds upon which leave was sought except to recite “[p]ursuant to Rule 30(4)(b) of the Court Procedure Rules 2006 (ACT)”.
9․The 16 January 2023 application was also supported by an affidavit of the applicant of 5 January 2023 (5 January 2023 affidavit). Counsel for the defendant noted that this affidavit was attached to the 16 January 2023 application. In the affidavit, the applicant affirmed that he is a director of the plaintiff and that he authorised himself to act on behalf of the plaintiff.
10․Relevantly, as noted by Mossop J in Bennelong Medical Pty Ltd v Commissioner of Taxation [2023] ACTSC 74 (Bennelong), the 5 January 2023 affidavit also sought to support the 16 January 2023 application as follows (at [5]):
3. The Australian Taxation Office is retaining a R&D Tax Incentive refund under s 8AAZLGA of the Taxation Administration Act 1953 (Cth). A letter, dated 25 July 2022, was sent to the Plaintiff, nominating Graham Turci as the contact officer (Annexure ‘A’ [of the affidavit]).
4. Mr Graham Turci verifies the R&D and VC incentives expenses for the Australian Taxation Office.
5. Mr Graham Turci was informed that there is no valid authority, ‘jurisdictional fact,’ under the Taxation Administration Act1953 (Cth) to verify R&D tax incentive expense claims. In response, Mr Graham Turci stated that he relies on the s 355 of the Income Tax Assessment Act 1997 (Cth) to verify R&D tax incentive claims.
6.Mr Graham Turci was advised in [an] email (Annexure ‘B’ [of the affidavit]), dated 8 December 2022,
… pursuant to the High Court ruling in the Yager v Queen (1977) 139 CLR 28, 43, There is, therefore, no legitimate foundation for resorting to the definitions [expense] contained in the [Taxation Administration Act 1953 (Cth)] for the purpose of modifying or qualifying another statutory definition [R & D expenses] contained in [Income Tax Assessment Act 1997 (Cth)] a different Act of Parliament.

11․Annexure A of the 5 January 2023 affidavit is a letter dated 25 July 2022 from the Australian Taxation Office (ATO) informing the plaintiff that the tax return of the plaintiff for the financial year ending 30 June 2019 is being chosen to verify the amount the plaintiff claimed for R&D tax incentives. The letter cited s 8AAZLGA of the Taxation Administration Act 1953 (Cth) as authority for doing so. Mr Graham Turci is the person nominated by the letter that the plaintiff should contact to comply with the information request detailed in the letter.
12․Annexure B of the 5 January 2023 affidavit is the applicant’s emailed reply on behalf of the plaintiff, dated 8 December 2022. The email reattached what appears to be Annexure A, and reads as follows:
Dear Graham,
In your letter dated 25 July 2022 (attached), you stated,
‘We are retaining any refund you may be entitled to while we check your claim. We are allowed to do this under section 8AAZLGA of the Taxation Administration Act 1953 (Cth).’

With respect, you are not allowed [[the applicant’s] emphasis] to do this (i.e. ‘retaining any refund’) pursuant to High Court ruling in Yager vthe Queen (1977) 139 CLR 28, 43,
There is, therefore, no legitimate foundation for resorting to the definitions [expense] contained in the [Taxation Administration Act 1953 (Cth)] for the purpose of modifying or qualifying another statutory definition [R & D expenses] contained in [Income Tax Assessment Act 1997 (Cth)] a different Act of Parliament.

I look forward to hearing from you. Thank you so much.”
13․As noted by Mossop J in Bennelong at [8], the applicant also filed an application to apparently stay some aspect of verification of “expenses” on 23 January 2023, but this application was apparently withdrawn on 17 February 2023.
14․As noted by the defendant, the applicant also then filed a further affidavit dated 22 February 2023 (22 February 2023 affidavit). The applicant affirmed that he is the director of the plaintiff and that he authorised himself to represent the plaintiff. The affidavit also attached a letter of authority and an ASIC company extract confirming that he is the sole director, secretary, and shareholder of the plaintiff.
15․What occurred next was summarised by Mossop J in Bennelong. On 24 March 2023, Senior Deputy Registrar Gatehouse dismissed the 16 January 2023 application with costs: Bennelong at [10]. The applicant then filed an application for a stay of the Senior Deputy Registrar’s orders and a notice of appeal on 29 March 2023 against the Senior Deputy Registrar’s orders: Bennelong at [11]. The applicant also filed a further affidavit in support of this appeal, dated 29 March 2023.
16․The appeal was then heard de novo by Mossop J in Bennelong. It should also be noted that Mossop J made orders substituting the defendant in the proceedings from the ATO with the Commissioner of Taxation, without opposition from the applicant: Bennelong at [16].
17․In determining the application (see Bennelong at [17]), Mossop J applied the approach to r 30(4) as usefully summarised by McWilliam AsJ (as her Honour then was) in Manny v David Lardner & Associates (No 2) [2019] ACTSC 86:
50. There is no single method or criteria for determining whether the Court should grant leave. Relevant factors to be considered include (see Damjanovic v Maley [2002] NSWCA 230; 55 NSWLR 149 (Damjanovic) at [69]-[88] per Stein JA, with whom Mason P and Sheller JA agreed):
(a) the complexity of the case;
(b) genuine difficulties of the unrepresented party;
(c) the unavailability of disciplinary measures and the lack of a duty to the court by lay advocates;
(d) the protection of the client and their opponent; and
(e) the interests of justice.
51. Damjanovic also referred to whether the matter is in an inferior court or tribunal, something which is not relevant to the present application. These types of considerations have been applied in the Federal jurisdiction, most recently by Flick J in Herbert v American Express Australia Ltd [2018] FCA 1790 at [20].
52.Authorities such as Deputy Commissioner of Taxation v Compumark Pty Ltd [2012] FCA 583; 292 ALR 83 at [20] and Enviro Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306 at [18] have referred to factors in addition to those mentioned above, although they do appear to fall within the broader considerations already identified. They include:
(a) the manner in which the case has progressed to date;
(b) the manner in which the case can proceed in the future without a solicitor;
(c) whether the lack of disciplinary measures in relation to the person seeking to represent the company will affect the administration of justice
(d) whether the case can be conducted in an orderly and responsible fashion without a solicitor;
(e) whether there are financial considerations which would inhibit a company from obtaining legal representation;
(f) the stage which the case has reached;
(h) whether the defendant is likely to expend more funds in defending the claim absent a solicitor acting for the company; and
(i) the effect, if any, on court resources and in particular on other litigants in the court list if the company were to appear without a solicitor.

18․Mossop J decided that the following factors considered together made it clear that leave should not be granted (Bennelong at [19]):
(a)The claim raised a question of statutory interpretation. However, Mossop J was of the view that “the claim has not been clearly articulated and, as a result, the connection between the question of statutory interpretation and the facts of the case is not clear” (at [19](a)). Indeed, Mossop J described the original application as “inadequate as it does not coherently describe a claim for final relief” and appears to be an inadequately articulated attempt to claim a declaration in Mossop J’s view (see [14]);
(b)There will be some legal complexity in relation to the pursuit of the claim, having regard to the question of statutory interpretation raised, other issues which will or may arise in relation to the jurisdiction of the Court, the question of whether or not any declaration could be appropriate in the circumstances, and matters of procedure more generally (at [19](b));
(c)From the conduct of the case as of 11 April 2023, it was not apparent to Mossop J that the case will be able to be conducted in an orderly fashion without a solicitor. Mossop J cited the difficulty with the formulation of the claim and the inadequacy of the evidential material put forward in support of that claim as an illustration (at [19](c)). Earlier in the judgment, Mossop J also noted that the proceedings have involved “some apparently unnecessary steps” (at [15]);
(d)There is no evidence that the applicant or the plaintiff is unable, because of financial constraints, to engage a solicitor to conduct the case (at [19](d));
(e)It is “very likely” that the defendant will be put to substantially greater expense in defending the claim if the case is conducted by the applicant as opposed to a solicitor (at [19](e));
(f)It is likely that greater court resources will need to be devoted to the matter at the expense of other litigants if the case is conducted by the applicant as opposed to a solicitor (at [19](f)).

19․In concluding, Mossop J noted that he reached the same conclusion as the one reflected in the orders of the Senior Deputy Registrar. Accordingly, his Honour dismissed the appeal: Bennelong at [20].
20․The plaintiff then in turn appealed Mossop J’s decision, filing a notice of appeal on 27 April 2023. The defendant then made a counter application in proceeding on 5 June 2023, seeking that the applicant’s notice of appeal be struck out as incompetent pursuant to r 5472 of the CPR and/or as non-compliant with the CPR: Bennelong Medical Pty Ltd v Commissioner of Taxation (No 2) [2023] ACTCA 28 at [1]-[5] (Bennelong (No 2)). The alleged non-compliance was with rr 5403(1)(f) and (2) of the CPR: Bennelong (No 2) at [5], [7].
21․I note that counsel for the defendant at the hearing of the current application properly and correctly submitted that the substance of Bennelong (No 2) is not relevant for determining the current application. Nevertheless, it is relevant in discussing the procedural history to summarise the case in so far as it provides context and backdrop to a later relevant decision by Taylor J.
22․Curtin AJ did not consider the application to be “incompetent” in the sense of r 5472 of the CPR. His Honour therefore considered that the defendant’s application as drafted must fail: Bennelong (No 2) at [6]. His Honour did, however, consider that the plaintiff’s ground of appeal as relied in the notice of appeal to be non-compliant with rr 5403(1)(f) and 5403(2): Bennelong (No 2) at [7]. Curtin AJ observed that the supposed ground merely stated a purported fact that the decision of the Senior Deputy Registrar and that of Mossop J on the first appeal was different. As such, his Honour stated that that could not amount to a ground of appeal: Bennelong (No 2) at [11]-[12].
23․Curtin AJ then proceeded to struck out the plaintiff’s notice of appeal as it may tend to prejudice, embarrass or delay the fair trial of proceeding, or otherwise frivolous or unnecessary under r 425 of the CPR: Bennelong (No 2) at [13], [15]-[16], [21](1). However, Curtin AJ ordered costs against the defendant. His Honour noted that the defendant’s counter application, being a notice to strike out the notice of appeal, as framed was bound to fail and that “it would appear that the [defendant] did not undertake any substantive research as to the grounds required to be established to obtain the relief it sought”: Bennelong at [19].
24․Curtin AJ also gave the applicant a chance to redraft his notice of appeal as the applicant “was not fairly put on notice of the matters [Curtin AJ] have just outlined”: Bennelong (No 2) at [16], [21](2). Curtin AJ left the question of whether the appeal was incompetent as the applicant/plaintiff did not have leave to appeal an interlocutory decision in the Court of Appeal to another occasion: Bennelong (No 2) at [17]-[19].
25․Ultimately, Curtin AJ granted leave for the defendant to file and serve an amended application in proceeding before the close of business of 23 June 2023, and for the applicant to serve any affidavit evidence in reply on or before close of business on 30 June 2023: Bennelong (No 2) at [21](3)-(4).
26․The matter was next heard before Taylor J (Bennelong Medical Pty Ltd v Commissioner of Taxation (No 3) [2023] ACTCA 37 (Bennelong (No 3)). As Taylor J noted, the defendant lodged an amended application in proceeding on 23 June 2023, subsequently filed on 26 June 2023: Bennelong (No 3) at [13]. That application sought the following orders:
1.The Notice of Appeal be struck out as incompetent pursuant to r 5472 of the [CPR]
2.The [plaintiff] pay the [the defendant’s] costs of the application.
3.Any other orders that the Court considered appropriate.

27․These orders were sought on the grounds that the plaintiff requires leave of the Court to appeal, and that the Court has not granted leave: Bennelong (No 3) at [14]. This is consistent with the defendant’s intention in Bennelong (No 2) had there been an opportunity to amend the application: Bennelong (No 2) at [18]. Counsel for the defendant in this hearing also appeared for the defendant in Bennelong (No 3).
28․The plaintiff also filed an amended notice of appeal on 3 July 2023. Taylor J outlined (at [16]) that the amended notice sought the following orders, on the grounds that “[Mossop J] reasons contradict [Senior Deputy] Registrar Gatehouse’s reasons”:
1.The appeal is allowed.
2.Decision of Mossop J of 11 April 2023 is set aside.
3.Decision of Registrar Gatehouse of 24 March 2023 is set aside.
4.Pursuant to Rule 30(4)(b) of the [CPR], [leave] is granted for an officer of the corporation authorised by the corporation to represent it.
(if r 5403 (3) applies)

29․Taylor J observed that this amended notice of appeal is in “substantially the same terms” as the plaintiff’s original notice of appeal and restated the issue in the same terms as original notice: Bennelong (No 3) at [17], [39]. This is despite Curtin AJ having “carefully referred to matters that might require further consideration by the parties”, bearing in mind that the plaintiff is a non-lawyer: Bennelong (No 3) at [39]. The only additional information was apparently provided under the heading “Case Summary” in the amended notice (Bennelong (No 3) at [17]):

On … 11 April 2023, Mossop J presided over an appeal from a decision to refuse leave [to] represent Bennelong [M]edical Pty Ltd, as an authorised officer.
Submissions were heard on the Australian Taxation Officer as a model litigant. His Honour referred to correspondences between the Applicant and the [Defendant].
His Honour relied on Manny v David Lardner & Associates (No 2) [2019] ACTSC 86 to state the following,
As a consequence, I reached the same conclusion as that reflected in the orders made by the Senior Deputy Registrar. As a consequence, the appeal will be dismissed. Costs of the appeal should follow the event.

30․Taylor J found the decision of Mossop J in Bennelong to be interlocutory. As such leave was required for the plaintiff to appeal his Honour’s decision pursuant to s 37E of the Supreme Court Act 1933 (ACT) s 37E and r 5310 of the CPR: Bennelong (No 3) at [33]. As the plaintiff did not seek leave, the appeal was therefore incompetent and accordingly was struck out: Bennelong (No 3) at [36].
31․Nevertheless, Taylor J proceeded to consider whether leave to appeal should be granted. At the current hearing, counsel for the defendant noted that Taylor J did so under the defendant’s invitation to avoid procedural unfairness and in accordance with the defendant’s obligation as a model litigant and counsel’s duty as an officer of the court. As noted by the defendant, her Honour also clearly and properly had in mind that the plaintiff was a self-represented litigant and the need to not let “technical legal points about competency to obscure the issue”: Bennelong (No 3) at [39].
32․After referring to the relevant authorities (see Bennelong (No 3) at [42]-[45]), Taylor J observed:
46.As has been identified the Amended Notice of Appeal identifies the ground of appeal as the decision of the Registrar being contrary to the decision of Mossop J. The “Case Summary” included as part of the Amended Notice of Appeal identifies that in determining the outcome Mossop J relied on Manny v David Lardner & Associates(No 2) [2019] ACTSC 86; 135 ACSR 316 (‘Manny’). It is plain that his Honour referred to the principles articulated by McWilliam AJ (as her Honour then was) in Manny. Indeed it was correct of him to do so.
47. While the error or errors asserted by [the applicant] are unclear, I have undertaken an examination of the careful reasons of Mossop J … his Honour carefully considered the nature and complexity of the proceedings, the nature of the claim as set out in the originating application, the impact on the court and the defendant of the formulation of the claim and the impact of the absence of a solicitor representing the plaintiff in the proceedings.
48. There is no apparent error in the application by his Honour of the relevant principles articulated in Manny. There is no assertion that he failed to take account of a particular matter. Indeed it seems to me his Honour was at pains to consider the matter comprehensively and in fine detail. Any difference between the reasoning of the [Senior] Deputy Registrar and that of his Honour does not amount to an error…
49.The correctness of the view taken by Mossop J of the result of leave being granted to [the applicant] to appear for the plaintiff in the substantive proceedings is reinforced by the conduct of the proceeding in the Court of Appeal. This is in circumstances where the reasons of Curtin AJ clearly identified matters for [the applicant]’s further consideration… [The applicant] appeared confused about the nature of the proceeding in this Court which ultimately concerned a fairly straightforward question… This is only a further example of why the involvement of a solicitor is prudent, if not entirely necessary, in this case.

(emphasis added)
33․Taylor J ordered that the amended notice of appeal be struck out, and for the plaintiff to pay the defendant’s costs of the application: Bennelong (No 3) at [52]. Counsel for the defendant noted that the plaintiff has therefore effectively reached the end of the road when it comes to the 16 January 2023 application. Self-evidently, the final step would be for the plaintiff to apply for special leave to appeal the decision of Taylor J in the High Court. The plaintiff has not done that. Rather, the case has been brought before me.
34․As for the original application discussed at [7], the Registrar made orders on 22 April 2024 setting timetables for the filing and service of evidence and written submissions for both parties. The original application has also been listed for a full hearing before Mossop J on 21 June 2024.

The Current Application

35․On 18 April 2024, the applicant filed the current application. The applicant again sought leave pursuant to r 30(4) of the CPR to represent the plaintiff on the following ground:
Res judicata does not apply to interlocutory proceedings, see Dr Michael Van Thanh Quach v MLC Life Limited (No 4) [2020] FCA 532 at [24] [Quach v MLC Life (No 4)], Griffith J referencing Zetta Jet Pte Ltd v The Ship “Dragon Pearl” (No 2) [2018] FCAFC 132; 265 FCR 290 at [14] ff per Allsop CJ, Moshinsky and Colvin JJ)
36․As context, Quach v MLC Life (No 4) is a proceeding in which the applicant filed two interlocutory applications in the Federal Court seeking to set aside various subpoenas issued by MLC Life to the applicant and other parties as well as to revoke leave granted for MLC Life to issue other subpoenas, in the context of MLC Life’s rejection of the applicant’s claim on an insurance policy: at [1]-[3].
37․Paragraph [24] of Griffiths J’s judgment referred by the applicant above reads in full:
Sixthly, [the applicant]'s submissions as to why the Court should not apply Forge [v Australian Securities and Investment Commission (No 2) [2007] NSWCA 42; 69 NSWLR 575] are misplaced. Contrary to Dr Quach's belief, the Federal Court is not a Court which is higher in the judicial hierarchy to the Supreme Court of NSW, including the Court of Appeal as part of that Court. Furthermore, s 109 of the Constitution has no application at all to what the Court of Appeal said there regarding the doctrine of res judicata. In any event, because the interlocutory applications will be dismissed on other grounds, it is unnecessary to determine whether they are incompetent on the ground asserted by MLC. I should add, however, that I see real difficulty with MLC's submission that the doctrine applies to an interlocutory judgment (see, for example, Zetta Jet Pte Ltd v The Ship “Dragon Pearl” (No 2) [2018] FCAFC 132; 265 FCR 290 at [14] ff per Allsop CJ, Moshinsky and Colvin JJ).
(emphasis added)
38․The case of Forge v Australian Securities and Investment Commission (No 2) [2007] NSWCA; 69 NSWLR 575 (Forge) was cited by MLC Life to argue that the application in Quach v MLC Life (No 4) was incompetent due to res judicata flowing from the orders made by Rares J refusing leave to appeal against an earlier decision of Griffiths J on the matter (see Quach v MLC Life (No 1) [2019] FCA 1194, leave to appeal refused in Quach v MLC Life (No 3) [2019] FCA 2066): Quach v MLC Life (No 4) at [5], [11], [15]. It is clear that Griffiths J in obiter doubted that res judicata applied to interlocutory applications, citing the Full Court of the Federal Court in Zetta Jet Pte Ltd v The Ship “Dragon Pearl” (No 2) [2018] FCAFC 132; 265 FCR 290 (Zetta Jet). I also note that Griffiths J also stated that MLC Life did not expressly address the issue of whether res judicata applied to interlocutory proceedings: Quach v MLC Life(No 4) at [15].
39․This application is supported by an affidavit of the applicant of the same date (18 April 2024 affidavit). The affidavit again affirmed that the applicant is the director of the plaintiff, and repeated observations made in the 16 April 2024 application regarding res judicata. The affidavit did include a further detail:
3. Mossop J, Curtin AJ and Taylor J have granted leave to represent [the applicant’s] company, Bennelong [M]edical Pty Ltd, for an application for leave under Rule 30(4) of the Court Procedure Rules 2006 (ACT).

40․I pause to note that in Bennelong (No 3), it was clear that the applicant was granted leave to appear on behalf of the plaintiff, without objection from the defendant, but only limited to that proceeding in order to facilitate the hearing of the application: Bennelong (No 3) at [18]. It may be inferred that Curtin AJ was motivated by similar considerations when he granted leave for the applicant to appear in the proceeding before his Honour: see Bennelong (No 2) at [16]. The same can be reasonably implied concerning Mossop J, and certainly can be said of my approach in this case. As such, this paragraph of the 16 April 2024 affidavit does not take the applicant’s case further.
41․On 6 May 2024, another affidavit was filed apparently in support of 18 April 2024 affidavit (6 May 2024 affidavit). The affidavit yet again affirmed that the applicant is a director of the plaintiff, and that the applicant authorises himself to act on behalf of the plaintiff. The affidavit then cited authorities, all included as annexures to the affidavit:
3. The High Court ruling in Gedeon v NSW Crimes Commission (2008) 236 CLR 120, 139 [43] (Annexure ‘A’) requires the Commissioner of Taxation to [have] ‘valid authority’, under the Taxation Administration Act 1953 (Cth) to verify R&D tax incentive expenses under this Act. It is a fact that the Commissioner of Taxation does not have valid authority under this Act to issue the letter [of] 22 July 2022.
4.The High Court [r]uling in Yager v The Queen (1977) 139 CLR 28, 43 (Annexure ‘B’) does not allow the Commissioner of Taxation to resort to the definition of ‘expense’ in a different Act of Parliament to mean ‘expense’, under the Income Tax Assessment Act 1997 (Cth).
5.The binding precedent of Mossop J in Quach v Butt [2016] ACTSC 153, [13] (Annexure ‘C’) applies both binding common [law] of the High Court of Australia, to all jurisdictions and Acts of Parliament.

42․The purpose for which the applicant referred to [13] of Quach v Butt [2016] ACTSC 153 is not entirely clear. It appears to be related to his reliance on Yager v The Queen (1977) 139 CLR 28. In that paragraph, Mossop AsJ (as his Honour then was) stated the following:
The [applicant] made written and oral submissions which did not appear to address the issue being raised by the respondent. The [applicant]’s submissions related to the effect of the decision of the New South Wales Court of Appeal in Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10. He submitted that the Court had in that case “all but invalidated” the decisions of the New South Wales Civil and Administrative Tribunal in Health Care Complaints Commission v Quach [2015] NSWCATOD 2 and Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32. He made reference to what he said was an order of special Magistrate Mulligan, made on 7 March 2016, that he have a “proper hearing”. In oral submissions he referred to the decision of Mason J in Yager v The Queen (1977) 139 CLR 28 at 43 where his Honour, in the context of a drug prosecution, said that there was no legitimate foundation for resorting to definitions contained in one Act for the purposes of modifying or qualifying another statutory definition contained in a different Act of Parliament.
43․I pause to note that paragraph [4] of the 6 May 2024 affidavit is a repeat of matters mentioned in the original application and the 5 January 2023 affidavit, as discussed by Mossop J in Bennelong: at [3]-[5].
44․The current application was then listed before Senior Deputy Registrar Gatehouse on 10 May 2024, who referred it to me on the same day. During the hearing, I granted leave to the applicant to file a further affidavit (10 May 2024 affidavit). This affidavit appeared to not have been shown previously to the counsel for the defendant. The applicant explained that he did not have the opportunity to file the 10 May 2024 affidavit given that a hearing before the Senior Deputy Registrar was also occurring, although he asserted that the defendant has “98 pages” of the affidavit in its possession.
45․I gave counsel for the defendant an opportunity to read the affidavit at the hearing. Counsel then sensibly noted that he was not prejudiced by the affidavit and was content for the affidavit to be read.
46․Aside from the repeated recitation that the applicant is the director of the plaintiff and that he authorised himself to act on the plaintiff’s behalf, the applicant “affirmed”:
3. It is a fact that the judgment of [Judge Neville], QE Family Pty Ltd v Peter Warren Automative trading as Mercedes-Benz Macarthur [2024] FedCFamC2G 172 is a judgment of the Federal Court of Australia.
I.The Originating Application was filed in the Federal Court of Australia, pursuant to Rule 8.01 of the Federal Court Rules.
II.The matter was [transferred] by Wigney J on 6 December 2022 (Annexure ‘A’).
III.At [14] (Annexure ‘B’)
… the Court dispenses with the requirements of the Rules regarding a corporation being legally represented in the circumstances of the current matter where Dr Quach clearly uses, from time to time, his family company as an agent for his business affairs and other related interests.’

4. It is a fact that, as the owner and sole director, I use my company Bennelong Medical Pty Ltd ‘as an agent for [my] business affairs and other related interests’. Attached (Annexure ‘C’) are invoices and proof of purchases made in [the applicant’s name], which the Commissioner of Taxation has in his possession,
5. It is a fact that ruling in QE Family Pty Ltd v Peter Warren Automotive trading as Mercedes-Benz Macarthur [2024] FedCFamC2G 172 at [14], as a Federal Court of Australia ruling is binding on the ACT Supreme Court on the legal principle of stare decicis.
6. It is a fact that the Commissioner of Taxation is bound by this ruling of the Federal Court of Australia.

47․It is relevant and instructive to discuss QE Family Pty Ltd v Peter Warren Automotive [2024] FedCFamC2G 172 (QE Family) and to situate the relied paragraph in context. QE Family was a suit initiated over alleged defects in a Mercedes-Benz vehicle purchased by the applicant: QE Family at [1]. As noted in the 10 May 2024 affidavit, the proceeding was transferred from the Federal Court on 6 December 2022 under s 32AB of Federal Court Act 1976 (Cth): QE Family at [2].
48․As in this case, there was an issue as to whether the applicant could represent his family company, QE Family Pty Ltd: QE Family at [6], [10](c). [11]. As noted by Judge Neville, r 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFamC Rules) required corporations to be represented by a lawyer to start and carry out proceedings in the Federal Circuit and Family Court (Division 2), subject to leave of the court (among other things): QE Family at [12]. As with the CPR, the FCFamC Rules also contained provisions allowing the Court to dispense with compliance with its provisions: FCFamC Rules r 1.07, cited in QE Family at [13].
49․Judge Neville observed that “[m]uch time and energy was rather needlessly expended” in the proceedings on determining who was the proper plaintiff (the applicant or QE Family) and the legal representation of QE Family, and that these matters should have been addressed “directly and expeditiously much earlier in the proceeding”: QE Family at [6]. It was with this background that Judge Neville made the following remarks:
14. On the Court’s own motion, in the interests of justice in accordance with r.1.07, the Court dispenses with the requirements of the Rules regarding a corporation being legally represented in the circumstances of the current matter where Dr Quach clearly uses, from time to time, his family company as an agent for his business affairs and other related interests. Without stating this in these terms, perhaps partly out of exasperation, the Respondent’s submissions seem also to acknowledge this reality, which I also take to be further support for the Court’s procedural course.
15.For similar reasons and using the same Rule, again on the Court’s own motion, in relation to any of the multiple and ongoing difficulties regarding who is the proper Applicant/Plaintiff, I shall treat [the applicant] and his family company, QE Family Pty Ltd, as interchangeable entities. It follows that they shall be treated as joint Applicants in the proceeding to the degree that there is any issue regarding who is the proper Applicant/Plaintiff.

(excerpts referred to by the applicant in bold)
50․Before turning to the parties’ submissions at hearing, it is also relevant to note one final matter. Court records noted that the applicant filed another application in proceeding on 10 May 2024. This application sought to adjourn the “trial” for this matter under r 1506 of the CPR until the determination of a separate matter. This separate matter appears to involve the applicant in his personal capacity and the defendant. The adjournment was sought on the basis that “it is in the best interest” of administration of justice for the matter to be adjourned awaiting a determination of “the question of contempt” in that other matter, which court records indicate is listed for 14 August 2024. Neither party raised this application nor made submissions on it in the hearing before me, and as such I will put it to one side.

Submissions of the Parties

51․As I understand the applicant’s submission at the hearing before me, the applicant in essence submitted that the Federal Court, through Judge Neville in QE Family, has dispensed with the requirement that QE Family Pty Ltd be represented by a lawyer to carry out or initiating proceedings as the applicant “clearly uses, from time to time, his family company as an agent for his business affairs and other related interests”: QE Family at [14]. By annexure “C” of the 10 May 2024 affidavit, the applicant sought to demonstrate that QE Family Pty Ltd and the plaintiff are “a direct comparison”. Accordingly, it was asserted that this Court is bound by QE Family and the applicant now “seeks leave to dispense” with r 30(4) of CPR.
52․I pause to note that the last sentence at first blush may suggest that the applicant was seeking to dispense with the r 30(4) under r 6 of the CPR. At the hearing, the applicant clarified he was not making any such application.
53․The applicant also noted in submissions his reliance on res judicata. In reviewing the 18 April 2024 affidavit and his submissions at the hearing, it appears that the applicant has done so to ward off suggestions that this application has been foreclosed by the decisions in Bennelong, Bennelong (No 2), and Bennelong (No 3).
54․In response, counsel for the defendant submitted that the current application should not be granted for the following reasons:
(a)the application is an abuse of process;
(b)in the alternative, the application is precluded by an Anshun estoppel.

55․I observed that the crux of the defendant’s argument for abuse of process is that the current application originated from the original application, which in turn has been subject to a number of decisions that went against the applicant. Counsel submitted that the current application is drafted in precisely the same terms as the 16 January 2023 application that have been dismissed successively by Senior Deputy Registrar Gatehouse, Mossop J and Taylor J. In my view this submission is unassailable on the evidence before me.
56․Counsel for the defendant referred to the decision of McWilliam AsJ in Findex Group Limited v McKay [2022] ACTSC 192 (Findex), where her Honour discussed the principles in relation to abuse of process at [63]-[76]. In particular, counsel for the defendant highlighted the following:

64. … A Court has inherent power to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair or unjustifiably oppressive to a party to litigation before it, or otherwise bring the administration of justice into disrepute.

(emphasis added)
57․Counsel for the defendant noted that it is the last part of that paragraph, bringing the administration of justice into disrepute, that this Court could apply to readily dismiss the current application. The defendant contended that, after the determination of Taylor J in Bennelong (No 3), the next step was not to file the current application seeking relief in “precisely the same terms” as the 16 January 2023 application. The applicant could seek to have the decision reviewed by the High Court by way of special leave, and this was not done. Again, in my view, this submission has much force on the evidence before me.
58․Counsel for the defendant also took me to the findings of Mossop J in [19] of Bennelong, discussed above at [18]. Counsel submitted that I would, in light of his submissions, independently reach the same conclusion as his Honour as to the factors weighing against granting leave. It also follows, in the defendant’s oral submissions, that I should accordingly dismiss the application with costs. Finally, counsel for the defendant also noted that Taylor J in Bennelong (No 3) also made similar findings as Mossop J. All of this is obvious in my view from an analysis of the procedural history.
59․Counsel for the defendant correctly accepted that res judicata does not apply to interlocutory proceedings. So much must be conceded as a matter of law. However, counsel submitted that the applicant is asking the Court to determine an issue that has been decided. The evidence, counsel submitted, has also not changed. As an example, counsel noted that the applicant has not affirmed or supplied any evidence that the plaintiff will not be in a financial position to instruct an Australian legal practitioner: see also Bennelong at [19](d). This in my view is correct. While counsel for the defendant accepted that the plaintiff is an “alter ego” of the applicant, counsel properly and correctly submitted this does not entail that the applicant was bound to appoint himself to represent the plaintiff.
60․In the alternative, counsel for the defendant submitted that the application should not be granted on the grounds of an Anshun estoppel. Counsel for the defendant essentially relied on the same grounds submitted to support a finding of abuse of process, namely that the issue of whether the applicant ought to be granted leave to appear has already been previously decided.
61․Counsel for the defendant again referred to Findex for the principles applicable for an Anshun estoppel (at [37]-[43]). Relevantly, I restate the principles below:
37. Anshun estoppel precludes a party from relying upon a cause of action or an issue if it was “so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it”: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 (Anshun) at 602; see also Timbercorp Finance Pty Ltd v Collins [2016] HCA 44; 259 CLR 212 (Timbercorp) at [56]; Clayton v Bant [2020] HCA 44 (Clayton) per Edelman J at [70].
38. This type of estoppel is sometimes referred to as the “extended principle” in Henderson v Henderson: Clayton at [70]; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 (Tomlinson) at [22]. That is a reference to what was said by Wigram VC in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 (Henderson) at 319 (emphasis added):
“… where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

…
40. The test for whether the issue ought to have been litigated as part of the earlier proceedings is based on the reasonableness or otherwise of the conduct of a litigant in the earlier proceedings…
41. The mere fact that the issue could have been raised does not mean it should have been raised. There may be a variety of circumstances why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings: Anshun at 603.
42. Anshun estoppel is not based on degrees of similarity, but on whether the court is satisfied that the issue was so relevant to the subject matter of the first action as to make it unreasonable not to raise it… A party will be estopped from bringing an action where, if it succeeds, it would result in a judgment which conflicts with an earlier judgment: Anshun at 603.
43. The plaintiffs also drew attention to Re Combined Projects (Arncliffe) Pty Ltd [2019] NSWSC 1070, where Ward CJ in Eq (as her honour then was) stated at [93] that “substantial similarity in the factual basis for the claims is said to be a necessary but not sufficient condition for application of the principle”, citing Gibbs v Kinna [1999] 2 VR 19; [1998] VSCA 52 at [23] per Kenny JA.

62․I also note the following discussion in the judgment of French CJ, Bell, Gageler and Keane JJ in Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 (Tomlinson) as to crux of the difference between abuse of process and estoppel, referred to in Findex at [65]:
24.… The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
25. Abuse of process … is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute…

(citations omitted)
63․For clarity, it should be noted that the majority in the High Court appears to be using “estoppel” in this discussion as a catch-all term for cause of action estoppel, issue estoppel, and Anshun estoppel: see Tomlinson at [22]-[23]. Referring specifically to Anshun estoppel, the majority observed (at [22]):
Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
64․Finally, counsel for the defendant also relied on his submissions on abuse of process and Anshun estoppel as reasons why I should not dispense with r 30(4). As noted above at [52], however, the applicant made it clear that he made no such application. As such, this submission may be put to one side.
65․In reply, the applicant submitted that there has been only one decision to refuse leave: that being the decision of Senior Deputy Registrar of 24 March 2023. The applicant further submitted that I am at liberty to “overrule” that decision. The decisions of Mossop J and Taylor J, in the applicant’s submission, were decisions on appeal and are “not decisions of the substantive matter”. The applicant submitted that he did not “understand” how the defendant was able to maintain that the current application is an abuse of process if counsel accepted that res judicata does not apply to an interlocutory decision.
66․The applicant also referred to authorities that, in his submission, relate to the principle of res judicata in interlocutory applications. The first case referred to was Quach v MLC Life (No 4), which I have discussed above at [36]-[38]. The second was Quach v ATM Residential Pty Ltd [2022] ACTSC 210 (ATM Residential). ATM Residential is a decision of McCallum CJ removing a defendant from a proceeding initiated by the applicant under r 230 of the CPR. I note in passing that counsel for the defendant also appeared for the defendant in that proceeding.
67․The applicant placed particular reliance on the following excerpt of ATM Residential:
19. The defendant, ATM, noted that an order removing it as the defendant to the proceedings would not stand as a res judicata and for that reason sought an order precluding [the applicant] from suing it again on the same facts…

68․The applicant submitted that this demonstrated that the counsel for the defendant’s submission that the applicant “cannot sue the Commissioner again on the question of leave to appear” is contradictory with counsel’s acceptance that res judicata does not apply to interlocutory applications. The logic of this submission is not immediately apparent. By this submission, I understand that the applicant was submitting that if counsel for the defendant accepted that res judicata does not apply, therefore counsel for the defendant must accept that it is open for the applicant to make a further application under r 30(4). Otherwise, as the applicant appeared to argue, counsel for the defendant would not have sought the order to preclude the applicant from suing it again on the same facts in ATM Residential.
69․For his part, counsel for the defendant noted as context, that there were further proceedings in the Court of Appeal in relation to ATM Residential, although they are of no significance or relevance to the current application. Counsel also submitted that in ATM Residential, McCallum CJ was not minded to make an order precluding the applicant to sue on the same facts as res judicata could not have applied in the circumstances of the case. It is instructive to set out the remainder of [19] of ATM Residential:
I am not persuaded that it is appropriate to make a pre-emptive order precluding [the applicant] from commencing any proceedings. However, I record that, in the event that he does bring proceedings against ATM again on the same facts, it would follow, as night follows day, that those proceedings should not be permitted to be prosecuted until the costs order I propose to make today has been satisfied.
70․Returning to the applicant’s submissions, the applicant then referred to QE Family. He submitted that the decision was “actually a decision of the Federal Court of Australia” as the case was not “commenced de novo” in the Federal Circuit and Family Court of Australia. The applicant then repeated that Judge Neville had dispensed with the requirement in the FCFamC rules that QE Family Pty Ltd be represented by a lawyer and submitted that this Court as well the defendant is now, it was argued, bound to follow QE Family as the circumstances of QE Family Pty Ltd is directly comparable to the plaintiff.

Consideration

71․It is important that I make the following points in concluding my consideration.
72․First, as noted by Taylor J in Bennelong (No 3), it is essential that courts ensure self-represented litigants are not procedurally disadvantaged due to the lack of legal representation: Bennelong (No 3) at [37]. This includes through providing assistance to the self-represent litigant to the extent possible (see Bennelong (No 3) at [37]) and providing sufficient information about the practice and procedure of the Court as is reasonably practicable for the purpose of ensuring a fair trial: Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160 at [65] (McWilliam J). Ultimately, the duty of the court is to ensure a fair trial: Kenny v Ritter [2009] SASC 139; 52 MVR 360 at [23] (Kenny), cited in Ede v Hyde [2014] ACTSC 305 at [37] (Penfold J) and Islam v The Queen [2017] ACTCA 10 at [114].
73․Second, consistently with this principle, I have endeavoured to assist the applicant by informing the nature of the argument put against him: Kenny at [23]. I have also informed the applicant that it was open for him to apply for special leave at the High Court to appeal Taylor J’s ruling in Bennelong (No 3) or, alternatively, to withdraw the current application and refile it in the event the applicant had new evidence. I have also informed the applicant of the potential costs consequences should I find against him at the hearing. The applicant did not withdraw his application and as such I must deal with the parties’ submissions as presented.
74․Third, it is clear that a critical question in this application is res judicata, the relationship of res judicata and the doctrine of abuse of process and other “preclusionary” rules such as Anshun estoppel.
75․Fourth, considerable reliance was placed by the applicant on the proposition that res judicata does not apply to interlocutory proceedings. That res judicata did not apply was correctly and properly accepted by counsel for the defendant. This concession does not carry the significance that the applicant has argued for.
76․As Edelman J observed in Clayton v Bant [2020] HCA 44; 272 CLR 1 (Clayton) the phrase res judicata has been used loosely to refer to four different doctrines, including relevantly Anshun estoppel: at [66]; see also Zetta Jet at [15]. Res judicata in the “strict” sense operates when a court has “quelled” the controversy between two parties and their rights and accordingly the rights in controversy cease to have an independent existence and merge in the final judgment: Tomlinson at [20] (French CJ, Bell, Gageler and Keane JJ); Zetta Jet at [16], [25]. If a party later attempt to reassert the extinguished right, res judicata in the strict sense can be relied to preclude that attempt: Clayton at [66].
77․For completeness, I also note that res judicata may also refer to res judicata estoppel, being an alternative descriptor for “cause of action” estoppel: Clayton at [67]. Such an estoppel precludes parties from relitigating a cause of action where there is a judgment that has resolved a conflict on the existence or extent of a cause of action: Clayton at [67]. This estoppel is largely redundant when a final judgment has been made and res judicata in the strict sense applies: Tomlinson at [22].
78․In either case, it is apparent that both res judicata in the strict sense and res judicata estoppel required a final judgment to be engaged: Clayton at [65], see also Zetta Jet at [14], [27], [51].
79․Fifth, however, it does not follow that a party has carte blanche to file interlocutory applications on the basis that res judicata does not apply. So much is clear from what French CJ stated in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 (Aon):
33. … Abuse of process principles may be invoked to prevent attempts to litigate that which should have been litigated in earlier proceedings as well as attempts to re-litigate that which has already been determined. Reichel v Magrath [(1889) 14 App Cas 665] is a long-standing example of a re-litigation case decided on abuse of process grounds, rather than on the basis of res judicata or issue estoppel. It was relied upon in Walton v Gardiner [(1993) 177 CLR 378] and Rogers v The Queen [(1994) 181 CLR 251]. In the former case, Mason CJ, Deane and Dawson JJ said that:
“proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.” (footnote omitted)
The majority also endorsed the observation in Hunter v Chief Constable of West Midland Police that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of the Rules, would nevertheless be unfair to a party to the litigation “or would otherwise bring the administration of justice into disrepute among right-thinking people”…

(citations omitted)
80․Further, in Russo v Kogarah Municipal Council [1999] NSWCA 303; 105 LGERA 290, the NSW Court of Appeal (Stein JA, Meagher JA agreeing) made relevant observations in context of a development application that was identical with two previous development applications for all intents and purposes (see [7]):
9. … [Counsel for the respondent] submits that, in effect, what [the primary judge] was saying was that in the circumstances the virtual identity of the three development applications, and the fate of the first two in the Land and Environment Court, the third application was an abuse of process of the Court. He accepts, as I understand it, that it was not strictly a res judicata but submits that the circumstances are such that the court should refuse leave to appeal. I think that [counsel for the respondent] is correct in his interpretation of the judgment. The current application, being more or less precisely the same application as the first and the second, both of which were appealed and dismissed by the court, is an abuse of process of the Land and Environment Court, and ought not be permitted to proceed.
81․Sixth, the key point in my view is that the doctrine of abuse of process may operate to bar a repeat and virtually identical application separately from the operation of res judicata and does so in my view in the case before me.
82․In this regard, it is also relevant to note what was stated by the plurality (Kiefel, Bell and Keane JJ) in UBS AG v Tyne [2018] HCA 45; 265 CLR 77 (UBS). In UBS, the respondent (as trustee for his family trust) and his wife, had commenced proceedings in the Federal Court for damages and equitable compensation: UBS at [2]. The proceedings arose from allegedly negligent advice and/or misleading or deceptive conduct on the part of the appellant, UBS, in making representations to the respondent and, through him, two entities for which he was the controlling mind: UBS at [2], [10]. The representations were said to have induced one of the entities, Telesto Investments Ltd, to acquire and retain what turned out to be worthless bonds issued by Kazakh financial institutions: UBS at [10].
83․However, the respondent (in his personal capacity) and the two entities had previously commenced proceedings “arising out of the same facts and making essentially the same claims” in the Supreme Court of NSW: UBS at [2]-[3], [27]. That proceeding was in turn permanently stayed by the Supreme Court on the grounds that it is precluded by a res judicata estoppel as it was seeking to relitigate causes of action which has in substance been determined by the High Court of Singapore: UBS at [3], [24].
84․Unlike the respondent in UBS, it was not alleged that the applicant was “holding back” parts of his claim in anticipation of an unsuccessful result so that the claims could later be brought in another forum: cf UBS at [29], [55], [59]. Nevertheless, the following observations by the plurality (in allowing the appeal) are in my view relevant:

44. The circumstance that the Trust’s claim has not been heard on its merits, and that a fair trial may still be had, cannot be determinative of whether the proceeding is unjustifiably oppressive to UBS or whether its continuance would bring the administration of justice into disrepute…

…
46.Nor does the undue vexation which a stay of proceedings is concerned to prevent arise only when proceedings in respect of the same issue have been concluded by a judgment on the merits. Serial proceedings discontinued prior to judgment would be an obvious example of an abuse of process. The pursuit of substantially the same claim by serial proceedings conducted by different entities under common control is no less obviously an abuse of process.

(emphasis added)
85․Thus, the application of the doctrine of abuse of process is not precluded in relation to the case before me.
86․Seventh, relevantly, when it comes to the application of the doctrine of abuse of process to an interlocutory application such as the current application before me, it is appropriate to note the observations of Heydon JA in Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139 (Manning) (in that case, leave to commence proceedings out of time):
71.For present purposes it is not necessary to go further than to reject the test proposed by the Nominal Defendant, and to decline to apply the view of the majority in D A Christie Pty Ltd v Baker that the applicant making a second interlocutory application is guilty of an abuse of process unless the other party is guilty of fraud or the application rests on evidence which could not reasonably have been relied on before…
72.Nothing in the above reasoning rejecting the Nominal Defendant's
submission is intended to encourage litigants to avoid putting their best cases
forward in any interlocutory application. The deliberate non-tender of evidence
for use in a second interlocutory application should the first fail, or for use in
an interlocutory appeal from the interlocutory application, might of itself be
fatal to success; and even the non-deliberate failure to tender evidence is
extremely risky. The Nominal Defendant's proposition that no second
interlocutory application can be entertained unless there is a change of
circumstances or unless evidence is relied on which could not reasonably have
been obtained earlier is too extreme, but a litigant bringing a second application
where circumstances have not changed on evidence available earlier is facing
serious and self-created risks of an adverse exercise of judicial discretion. The
real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker (at 602-
603) — the risk of conflicting decisions, the unnecessary vexing of
respondents, judge-shopping and the diminution of certainty in the conduct by
respondents of their affairs — and others — damaging public confidence in the
integrity of judicial decisions, expending time and money on litigation
unnecessarily — are evils which each court in its individual discretion will
rightly strain to avoid.
73. But the risk of the evils must be balanced against all the circumstances of the case relevant to whether it is fair and just that leave should be granted, and in particular whether a trial which is just and fair for all parties can be held…

(emphasis added)
87․Accordingly, in my view there has not been a material change of circumstances in any case when it comes to the applicant’s relationship with the plaintiff. An organisation extract dated 19 April 2024 derived from ASIC databases was tendered by the defendant in the hearing. It shows that the applicant has been the sole director and secretary of the plaintiff since 2006. This is also corroborated by a company extract annexed to the applicant’s 22 February 2023 affidavit. Indeed, the fact that the plaintiff was an alter ego of the applicant was already recognised when the matter first came to Mossop J: Bennelong at [18].
88․Further, the invoices and statements included in Annexure C of the 10 May 2024 affidavit appears to be those dated June 2018 - July 2019. As such, if the applicant did use the plaintiff as an agent for his business affairs and other matters, the plaintiff had been so for some time and certainly by the time of the original decision of Senior Deputy Registrar on 24 March 2023. The submission of the defendant is that there has not been any change of evidence in this matter. On my analysis, this is correct on the evidence before me.
89․Also relevant at this juncture are the following observations of McWilliam J in Findex concerning the court’s limited resources to hear repeated iterations of the same application:
67. The Court’s task is informed by the need to resolve disputes in a just manner as quickly, inexpensively and efficiently as possible (pursuant to s 5A of the Court Procedures Act 2004 (ACT)…, which was explained in Securum Finance Ltd v Ashton [2001] Ch 291 by Chadwick LJ at [34]…:
The position, now, is that the court must address the application to strike out the second action with the overriding objective of the Civil Procedure Rules in mind – and must consider whether the claimant's wish to have 'a second bite at the cherry' outweighs the need to allot its own limited resources to other cases.

(emphasis added)
90․My overall conclusion is that this application should be dismissed as an abuse of process.
91․Given my finding that the application is an abuse of process, there is no need to address the alternative submission concerning Anshun estoppel.
92․Finally, I note merely for completeness a final submission that cannot be accepted. That is the applicant’s submission that the Federal Court can be said to have ruled through the Federal Circuit and Family Court because a matter was transferred from the Federal Court to the Federal Circuit and Family Court. This submission, while novel, has no basis.

Orders

93․For these reasons, I dismiss the application with costs.

I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson

Associate:

Date: 20 June 2024

**************

Amendments

20 June 2024 Included “affidavit” after “10 May 2024” before “given” Paragraphs: [44]

20 June 2024 Replaced “originating” with “16 January 2023” Paragraphs: [57]

20 June 2024 Included “conclusion” between “same” and “as” Paragraphs: [58]

20 June 2024 Included “the rights” between “accordingly” and “in” Paragraphs: [76]

20 June 2024 Replaced “plaintiff” with “applicant” Paragraphs: [88]

[2024] ACTSC 190

18 June 2024