Forge v Australian Securities & Investments Commission [No 2]

Santow JA, McColl JA and Handley AJA of the Court of Appeal of New South Wales considered a dispute between Forge and the Australian Securities & Investments Commission (ASIC). The proceedings concerned the effect of previous court orders, specifically an order for a limited new trial, and whether those orders had a res judicata effect on certain aspects of the claim.

The central legal issues before the Court of Appeal were whether the previous composite order, which was partly final and partly interlocutory, had the effect of res judicata in relation to ASIC's claim for indemnity costs, and whether ASIC was entitled to pursue such a claim given the nature of the subsisting orders.

The Court reasoned that the previous order for a limited new trial was a composite order, meaning it had both final and interlocutory aspects. The final aspect of the order, which affirmed the original judgment in part, had res judicata effect. However, the interlocutory aspect, relating to the limited new trial, did not preclude ASIC from pursuing its claim for indemnity costs. The Court applied the principles of res judicata, distinguishing between final and interlocutory orders and their respective preclusive effects.

The Court of Appeal dismissed ASIC's notice of motion and ordered that the parties file submissions in respect of the claim for indemnity costs.