Port of Melbourne Authority v Anshun Pty Ltd

[1980] HCA 41

HIGH COURT OF AUSTRALIA

Gibbs, Mason and Murphy JJ.

PORT OF MELBOURNE AUTHORITY v. ANSHUN PTY. LTD.

(1980) 147 CLR 35

1 November 1980

Practice

Practice—High Court—Appeal from State Supreme Court—Objection to competency—Supreme Court order for stay of action as absue of process—Whether interlocutory order—Judiciary Act 1903 (Cth), s. 35—High Court Rules , O. 70, r. 8.

Decisions

GIBBS J. There is before the Court an objection to the competency of an appeal from a decision of the Full Court of the Supreme Court of Victoria, which dismissed an appeal from a decision of McGarvie J. ordering that the action before him be forever stayed. In that action the appellant in this Court, the Port of Melbourne Authority, had sued for $53,632 alleged to be due from the respondent, Anshun Pty. Ltd., by way of indemnity under an agreement by which Anshun hired a crane from the Authority, and agreed to indemnify the Authority against all proceedings brought against the Authority in relation to any injury arising out of the use of the crane. Proceedings were brought by one Soterales against both the appellant and the respondent, claiming damages for personal injury caused by the negligent use of the crane. Mr. Soterales obtained judgment against both the appellant and the respondent, and it was held in those proceedings that each defendant was liable to contribute to the other in specified proportions. It was held by McGarvie J. that the claim for indemnity against Anshun by the Port of Melbourne Authority could and should have been raised in those proceedings. His Honour then applied the principle which is stated in the judgment of the Privy Council in Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. (1975) AC 581, at p 590 , in the following words:
"But there is a wider sense in which the doctrine" (sc., of res judicata) "may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings."
His Honour accordingly stayed the action as an abuse of process on the ground that the matters in question could and should have been litigated in earlier proceedings, and that, in those circumstances, the parties could not be permitted to reopen the same matter of litigation. (at p38)

2. 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 ALJR 11; 3 ALR 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. (at p38)

3. If the view expressed in Licul v. Corney (1976) 50 ALJR, 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. (at p38)

4. It seems to me that in the present case, as a matter of reality, the order made does finally dispose of the rights of the parties, and on that ground I would consider it to be a final order so that the objection to competency in my opinion ought to be overruled. (at p38)

MASON J. I agree. (at p38)

MURPHY J. I agree. (at p38)

Orders

Objection to competency overruled.

Costs of the objection and of the application for special leave to appeal to be the appellant's costs of the appeal.