Robertson v Northern Territory of Australia - [2023] NTSC 91

CITATION:Robertson v Northern Territory of Australia [2023] NTSC 91
PARTIES:ERIC ROBERTSON

v
NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2023-01675-SC
DELIVERED:  5 October 2023
HEARING DATE:  12 September 2023
JUDGMENT OF:  Luppino AsJ
CATCHWORDS:

Practice and Procedure – Summary dismissal of proceedings – Whether the Plaintiff has reasonable prosects of success – Plaintiff was a group member in earlier representative proceedings in the Federal Court – Representative proceedings were settled and settlement was approved by the Federal Court – Settlement included releases for any claims in specified circumstances – Release found to apply to the Plaintiff’s claims in the current proceedings – Proceedings dismissed.
Estoppel – Res judicata – Principle precludes the assertion in a subsequent proceeding of a claim to a right which has already been asserted in earlier proceedings and determined by judgment – Principle applies by reason of the pronouncement of judgment howsoever occurring including a consent judgment by way of settlement – The operation of the preclusion is based on the facts irrespective of the pleaded cause of action – Res judicata found to apply.
Estoppel – Anshun estoppel – Principle precludes the making of a claim or the raising of an issue which was not raised in an earlier proceeding where the connection with that earlier proceeding makes it unreasonable not to have raised it – Principle only applies to privies in interest and in representative proceedings only to the extent of common questions at the initial trial – Whether Plaintiff’s claim based on breach of duty is outside the common questions in the representative proceedings – The restriction of the principle to common questions does not apply where a representative proceeding is settled without an initial trial – But for that exception the principle would not preclude the Plaintiff’s current claim.
Practice and Procedure – Abuse of process – Broadly applies wherever the Court’s processes are used in a way which is unjustifiably oppressive or brings the administration of justice into disrepute – Applies to prevent double recovery of compensation – Principle is not limited to proceedings having the same parties or their privies – Plaintiff’s current claim found to be an abuse of process.
Federal Court of Australia Act 1976 (Cth) ss 33J, 33V, 33ZB, 33ZF.
Trade Practices Act 1974 (Cth) ss 52, 53, 82.
Personal Injuries (Liabilities and Damages) Act 2003 (NT).
Youth Justice Act 2005 (NT).
Supreme Court Rules 1987 (NT) rr 22.01(2), 23.01(1)(c), 23.02(d).

Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd [2017] VSCA 51
Dyczynski v Gibson (2020) 280 FCR 583
Grant v John Grant & Sons Pty Ltd (1954) 94 CLR 112
Johnson v Gore Wood & Co [2001] 1 All ER 281 at 500.
Kelly v Willmott Forests Ltd (No 4) [2016] FCA 323
Maganja v Arthur [1984] 3 NSWLR 561
Olive & Anor v Oceanview Developments Pty Limited & Ors [2023] NTSC 38
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
Spencer v The Commonwealth (2010) 241 CLR 118
Timbercorp Finance Pty Ltd (in liq) v Collins and Timbercorp Finance Pty Ltd (in liq) v Tomes [2016] HCA 44
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Trawl Industries of Australia Pty Ltd (In Liq) v Effem Foods Pty Ltd (1992) 36 FCR 406
Zetta Jet Pte Ltd v The Ship “Dragon Pearl” (No 2) (2018) 265 FCR 290
Zphere Pty Ltd v Pakis (2022) 165 ACSR 592
REPRESENTATION:
Counsel:
Plaintiff:K Sibley
Defendant:T Moses
Solicitors:
Plaintiff:Shine Lawyers
Defendants:Solicitor For The Northern Territory
Judgment category classification: B
Judgment ID Number: Lup2305

Number of pages: 26

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Robertson v Northern Territory of Australia [2023] NTSC 91
2020-01671-SC

BETWEEN:
ERIC ROBERTSON
Plaintiff

v
NORTHERN TERRITORY OF AUSTRALIA
Defendant

CORAM: Luppino AsJ
REASONS

(Delivered 5 October 2023)

By its amended summons the Defendant seeks orders firstly, for a stay of the Plaintiff's claim pursuant to rule 23.01(1)(c) of the Supreme Court Rules 1987 (NT) (“SCR”) and alternatively summary judgment pursuant to rule 22.01(2) of the SCR. Secondly, and in the further alternative, pursuant to rule 23.02(d) of the SCR, a strike out of the Plaintiff's Statement of Claim for alleged pleading deficiencies. Lastly, a temporary procedural dispensation for the filing of its Defence.
There were objections by each party to the evidence of the other filed on the application. Following preliminary argument, the parties resolved those objections and, subject to that, the Defendant relied on two affidavits of its solicitor, Elizabeth Thomson, made 26 June 2023 and 1 September 2023 and the affidavit of Karina Hintz made 11 September 2023. The Plaintiff relied on two affidavits of his solicitor, Charmaine Bastin, made 16 August 2023 and 7 September 2023 and his own affidavit made 14 August 2023.
The background facts are that the Plaintiff was detained pursuant to the Youth Justice Act 2005 (NT) at the Don Dale Juvenile Correctional Facility ("Don Dale") for various periods between November 2007 and August 2011 including a continuous period from 26 June 2020 to 12 October 2020. The relevance of the two last mentioned dates is apparent from what follows.
In the current proceedings the Plaintiff alleges that at various times during his detention at Don Dale he was subjected to serious physical and psychological abuse and he claims damages for breach of duty and breach of statutory duty allegedly owed to him by the Defendant.
Representative proceedings pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) were commenced on 23 December 2016 in the Federal Court of Australia (FCA) by two other detainees at Don Dale. The Plaintiff was a Group Member in those representative proceedings. In broad terms, as pleaded in those proceedings the Group Members were persons who, at the relevant time, had been detained in Don Dale and who were allegedly subjected to assault, battery or false imprisonment by actions or omissions of staff at Don Dale.
On 26 June 2020 the FCA, pursuant to section 33J of the FCA Act, inter alia ordered the Defendant to give opt out notices to the Group Members by a specified means. The Plaintiff was an inmate at Darwin Correctional Facility between 26 June 2020 and 12 October 2020, the latter date being the last date set by that order for a Group Member to opt out of the representative proceedings.
The representative proceedings were resolved by way of a settlement made on or about 28 May 2021. A Settlement Deed (“Deed”) was entered into and, pursuant to section 33V of the FCA Act, the settlement was approved by the FCA on 15 December 2021 following a hearing for that purpose. The Plaintiff received compensation pursuant to the settlement in two instalments, the first in October 2022 and the second in May 2023. The current proceedings were commenced by Writ filed 23 May 2023.
Relevant clauses of the Deed are:
·     Clause 3.2: this clause acknowledged that no claim was made by the Applicants and the Group Members for compensation for personal injury or lost earnings or lost earning capacity resulting from personal injury;
·     Clause 4.4: this clause provided that all parties, including the Group Members acknowledged that payment under the Deed was in full satisfaction of any claim in relation to the NT Youth Justice Class Action Claims;
·     Clause 7.1(a): this sub-clause provided that all parties, including the Group Members, released each other party from all NT Youth Justice Class Action Claims and "… any other cause of action arising out of the facts which were the subject of the NT Youth Justice Class Action Claims”;
·     Clause 7.1(b): this sub-clause provided that all parties, including the Group Members, agreed that the release(s) referred to in clause 7.1(a) could be pleaded as a bar and full defence to any Claims;
·     Clause 7.1(c): this sub-clause provided that all parties, including the Group Members, covenanted not to sue or continue to prosecute proceedings for any Claim referred to in clause 7.1(a);
Relevant definitions contained in the Deed are:
·     “NT Youth Justice Class Action Claims”: this phrase was defined as any Claim made by the Applicants and Group Members against the Respondent (the Defendant in the current proceedings) in the Proceeding;
·     “Claim”: this was defined as any claim or action whether based in contract, tort or statute and whether present, unascertained, immediate, future or contingent;
·     “Group Members”: this term was defined as the persons referred to in the Statement of Claim in the Proceeding and who had not opted out of the Proceeding;
·     “Proceeding”: this was defined as the class action commenced by the Applicants against the Respondent in the FCA;
·     Applicants: these were defined as the persons who instituted the representative proceedings in the FCA.
The Defendant's case on the application is founded on the submission that the Plaintiff's claim in the current proceedings is included in the claims the subject of the settlement of the representative proceedings.
The main evidentiary dispute concerning the application was that the Plaintiff disputed having received the opt out notice ordered by the FCA. That in turn means that he cannot dispute that he did not opt out of the representative proceedings, nor does he dispute that. Precisely, the Plaintiff’s evidence is that he does not recall receiving an opt out notice. He agrees that he had initial discussions with the solicitors handling the representative proceedings on behalf of the Applicants. There is no evidence before me that the Plaintiff took any steps to challenge the settlement or that he sought to be heard in the approval hearing, or that he took any steps to set aside the approval. Absent that, the Plaintiff is bound by the settlement by reason of section 33ZB of the FCA Act.
The Defendant's evidence in respect of the giving of opt out notices is strong as it is substantiated by records. That evidence is contained in the affidavit of Karina Hintz. She deposes that she was the person responsible, on behalf of the Defendant, for the distribution of opt out notices in accordance with the order of the FCA made 26 June 2020. She deposes that opt out notices and covering letters were sent, by the method specified in the FCA order, to the Group Members. That evidence was corroborated by documents which, in the case of the Plaintiff, recorded that the covering letter and opt out notice was first sent to him on 4 August 2020 care of the Darwin Correctional Centre.
Ms Hintz deposed that on 24 August 2020 she sent a second covering letter and notice to the Plaintiff, again by the means specified in the FCA order, to the Plaintiff care of the Darwin Correctional Centre. The second letter and notice was dispatched because it was considered necessary to endorse on the envelope that the contents were a legal letter ordered by the FCA and was to be handed to the Plaintiff without being opened or inspected. The envelope addressed to the Plaintiff containing the second letter and notice was endorsed accordingly. Again, that was corroborated by documents annexed to the affidavit.
Ms Hintz also deposed that records were kept of any notices which were returned undelivered and confirmed that neither of the notices sent to the Plaintiff as aforesaid were returned undelivered. Again documentary evidence to support that was annexed to her affidavit.
I accept that very positive evidence of Ms Hintz, supported by records, in preference to the vague evidence of the Plaintiff which is merely to the effect that he does not recall receiving the notice. I am satisfied that the required opt out notice was sent to the Plaintiff, by the means and as ordered by the FCA, while he was an inmate at the Darwin Correctional Centre initially between 27 July 2020 and 5 August 2020 and again between 19 and 24 August 2020. Although there is no direct evidence that the Plaintiff was actually handed those documents, I am prepared to infer that because of the evidence that the letters sent to the Plaintiff were not returned undelivered and, particularly in respect of the second notice, due to the evidence of the endorsement on the envelope containing that notice such that the staff at the Darwin Correctional Centre would have been alerted to the importance of that letter.
The Defendant’s application was made on four separate bases. These were:
·     The releases and bar in clause 7.1 of the Deed;
·     Res judicata;
·     Anshun estoppel;
·     Abuse of process.
The first is the primary basis for the Defendant’s claim to summary judgment. Summary judgment is sought pursuant to rule 22.01(2) of the SCR. Relevant parts of rule 22.01 are as follows:
22.01Summary judgment
(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For this rule, a defence of a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.
The principles concerning summary judgment applications are well settled and neither party rightly saw the need to make any submissions concerning the principles. Nevertheless I briefly set out those principles for context. The test for summary determination under rule 22.01 of the SCR is the “no reasonable prospect of success” test.[1] Applying that to the current case the Defendant needs to show that the Plaintiff has no reasonable prospect of successfully prosecuting the current proceedings.
The current test has lowered the bar for summary judgment applications but it remains the position that the power to grant summary judgment is not to be exercised lightly.[2]
The issue on the application for summary judgment is whether the Plaintiff's current proceedings are properly characterised as a claim independent of the FCA representative proceedings or whether the current proceedings arise out of the same facts as the NT Youth Justice Class Action Claims. If the latter, as Mr Moses, counsel for the Defendant submitted, they fall within the second limb of the release in clause 7.1(a) of the Deed such that the Plaintiff’s proceedings are barred by clause 7.1(b) of the Deed.
The facts supporting the claims made in the current proceedings are set out in paragraph 11 of the Statement of Claim. Those facts were neatly summarised in the submissions of the Defendant and I gratefully adopt that summary as follows:
(a)Allegations concerning the periods of incarceration in the back cells, including the conditions under which the Plaintiff was held in the back cells;
(b)Allegations concerned with the manner in which the Plaintiff was escorted to the back cells;
(c)Allegations concerning the manner in which the Plaintiff was physically restrained and assaulted by staff at various times;
(d)Allegations concerning being stripped of clothing;
(e)Allegations concerned with the manner in which the Plaintiff observed other detainees were physically restrained and assaulted by staff at various times.
By comparison, the NT Youth Justice Class Action Claims, as pleaded in the representative proceedings, applied to Group Members detained that Don Dale between 1 August 2006 and 27 November 2017 in respect of claims in tort for assault, battery and false imprisonment arising from acts or omissions of the Defendant in the current proceedings or a staff member of the Defendant for which the Defendant is vicariously liable. The pleadings in the representative proceedings in respect of Group Members were scant. Paragraph 107 of the last Statement of Claim contains a short statement that the Group Members suffered assaults, battery and false imprisonment as aforesaid. Then, at paragraph 109, there appears a statement that the claims of the Group Members would be pleaded and particularised after the initial trial of the Applicant’s claims and the common issues. Due to the settlement of the representative proceedings, the initial trial was not held.
Mr Moses submitted that, on the wording of the second limb, the release operates if the Plaintiff’s current claim arises out of the same facts as the claims in the representative proceedings. So much is clear from the wording of clause 7.1(a) of the Deed. He submitted that the claims do arise out of the same facts as, in summary, they concerned the same subject matter, namely the detention of individuals in juvenile corrections and their treatment while in detention. He argued that the intention of the Deed was to cover all unknown liabilities and was a settlement of indeterminate claims which shared a common thread of tortious abuse while in detention.[3]
Ms Sibley, counsel for the Plaintiff did not dispute that the Plaintiff’s current claim arose out of the same facts as the NT Youth Justice Class Action Claims. Instead she submitted that the release in clause 7.1(a) of the Deed does not apply because the Plaintiff’s current proceedings are not based on the same cause of action as the claims made in representative proceedings. Specifically, that in the current proceedings the claim is made for damages arising out of a breach of duty which differs to the claim pleaded in the representative proceedings, that being in tort for assault, battery and false imprisonment. Accordingly, the Plaintiff’s argument in a nutshell is that the reference to the “the facts which were the subject of the NT Youth Justice Class Action Claims” in clause 7.1 of the Deed refers to the material facts supporting the pleaded cause of action in the representative proceedings and not bare facts.
The distinction the Plaintiff makes relies on the absence of pleaded material facts and particulars concerning the claims of Group Members in the pleadings in the representative proceedings. Essentially the Plaintiff argues that as material facts for each Group Member, including the Plaintiff, were not pleaded in the representative proceedings, they cannot now be the subject of the release in the second limb.
The Plaintiff relied on the pleaded claims appearing in paragraphs 60, 78, 79, 81 and 83 of the last Statement of Claim in the representative proceedings. Those paragraphs set out the material facts supporting the claims by each of the Applicants. In contrast, as discussed in paragraph 21 above, paragraphs 107 and 109 only very briefly pleaded what are described as tort claims of Group Members. Specifically paragraph 109 stated that the material facts and particulars of claims of the group members would be provided after the initial trial of the Applicants’ claims and common issues.
Ms Sibley made the point that there was no reference anywhere in the pleading of the representative proceedings concerning either a claim based on a breach of duty or damages for breach of duty, and in particular damage for psychological injury, the foregoing being the pleaded nature of the loss in the current proceedings. I think that is correct. She went on to argue that accordingly none of the issues in the current proceedings were issues before the FCA when the settlement was approved and therefore were not covered by that settlement. That was put in addition to the submission that, as the material facts supporting the causes of action of the Group Members were not pleaded, the claims of Group Members cannot be the subject of the second limb of clause 7.1(a) of the Deed.
In response, the Defendant said that the wording of the second limb of the release in clause 7.1(a) of the Deed did not make the distinction advocated by the Plaintiff between material facts as pleaded and facts supporting a cause of action and that construction went against the clear wording of that clause.

I think the Plaintiff’s argument cannot be upheld. I agree that it disregards the clear wording of clause 7.1(a) of the Deed and focusses instead on the pleadings in both proceedings. On my reading of clause 7.1(a) of the Deed, it is the facts supporting the causes of action and not the material facts that support a particular cause of action to which the operation of the releases in that clause is directed. I agree that the factual matrix is the same as for the NT Youth Justice Class Action Claims. The self-serving categorisation of a cause of action utilised in the pleading of a subsequent claim is irrelevant. In my view, it is clearly the case that the claims in the Plaintiff’s current proceedings arise "… out of the facts which were the subject of the NT Youth Justice Class Action Claims”.
At hearing Ms Sibley also raised an argument not raised in written submissions namely, that the two limbs in clause 7.1(a) of the Deed created two separate releases. She argued that the first limb applied to the Group Members and the second limb applied only to the Applicants. Ms Sibley relied on clause 3.2 of the Deed to support her submission despite that the clause also did not make that distinction. That clause is to the effect that the representative proceedings did not contain a component of compensation for damages for personal injuries for either the Applicants or the Group Members. She relied on Grant v John Grant & Sons Pty Ltd[4] which she submitted supported the proposition that general words in a release are limited to the matters in the contemplation of the parties at the time the release was given. Based on that she argued that the release in clause 7.1(a) of the Deed was limited by clause 3.2 of the Deed and was not a release in respect of any claims for personal injury or loss of earning capacity.
That argument must also be rejected. I agree with the Defendant that clause 7.1 of the Deed provides for only one release, albeit with two different limbs, and that both limbs apply to both the Applicants and the Group Members. Acceptance of the Plaintiff’s construction would render the second limb otiose as clearly claims by the Applicants arise out of the facts which were the subject of the NT Youth Justice Class Action Claims. A construction which gives work to do for all parts of the clause is to be preferred.
In my view therefore the Defendant will be successful in its defence of the Plaintiff’s claim because the Plaintiff’s current proceedings arise out of the same facts as the claims referred to in the first limb of clause 7.1(a) of the Deed such that the bar in clause 7.1(b) of the Deed applies. It follows then that the Defendant is entitled to summary dismissal of the Plaintiff’s claim as the Plaintiff has no reasonable prospect of successfully prosecuting the current proceedings.
I will therefore make an order in terms of paragraph 2 of the Defendant’s amended summons.
Although it is therefore not necessary for me to do so, I now go on to deal with the three remaining bases of the Defendant’s application.
The second basis is that the Plaintiff is precluded from bringing the current proceedings by operation of the principle of res judicata.[5] The principle precludes an assertion in subsequent proceedings of a claim to a right which has already been asserted in earlier proceedings and determined by judgment: Tomlinson v Ramsey Food Processing Pty Ltd.[6] The Defendant submitted that the judgment entered by reason of the approval of the settlement of the representative proceedings finally determined the NT Youth Justice Class Action Claims and that gave rise to a res judicata.
Res judicata applies by reason of the pronouncement of a final judgment. Its application does not depend on how the final judgment came about and whether by default, by consent or following an adjudication on the merits: Tomlinson v Ramsey Food Processing Pty Ltd,[7] and Zetta Jet Pte Ltd v The Ship “Dragon Pearl” (No 2).[8] Specifically, a consent judgment following settlement can give rise to a res judicata.[9]
The principle precludes a party from litigating the same facts, even if based on a different cause of action, as it operates in respect of the substance i.e., the facts, not the form i.e., the cause of action: Maganja v Arthur[10] and Trawl Industries of Australia Pty Ltd (In Liq) v Effem Foods Pty Ltd (Trawl Industries).[11] A recognised test to determine if the principle applies is whether the same evidence would prove the case in both actions.[12]
The Plaintiff, in the written submissions at least, submitted that the current matter falls to be considered based on the Anshun principle and not res judicata. Ms Sibley submitted that the decision of the FCA approving the settlement of the representative proceedings could not raise res judicata because a different cause of action was relied on in the Plaintiff’s current proceedings to that in the representative proceedings. The Plaintiff based that on the representative proceedings being a claim for compensation for intentional torts which is a different cause of action to that in the current proceedings i.e., breach of duty. That argument disregards Maganja v Arthur and Trawl Industries yet no authority contradicting those cases was cited in support.
In Trawl Industries proceedings were brought in the FCA by a plaintiff who had unsuccessfully brought proceedings against the same defendant in the Supreme Court of New South Wales. The claim in the Supreme Court proceedings was for damages based on contract and there was no claim in negligence. In the subsequent proceeding in the FCA that plaintiff sought to recover damages under section 82 of the Trade Practices Act 1974 (Cth) by reason of contravention of sections 52 and 53 of that Act. There was also a claim in negligence.
The Court said that the issue was whether the plaintiff was seeking to vex the defendant again upon a cause of action that it had lost in the Supreme Court. Gummow J said that the law in Australia focuses upon the substance of the two proceedings as distinct from their form such that the estoppel operated even where the cause of action in each proceeding was not the same. His Honour went on to find that the defendant had made out its case for cause of action estoppel against the plaintiff. In arriving at that decision his Honour also relied on the fact that the same evidence would be led by the plaintiff in both actions and that there was a single factual matrix. He found that as a matter of substance the plaintiff sought to vex the defendant again on a corresponding cause of action. His Honour said:
This is so even though no claim previously was made in negligence. The substance of the controversy embraces such a claim. The gist of the recovery sought both in negligence and for contravention of the Trade Practices Act is the same;[13]
Similarly in Maganja v Arthur, the plaintiff had made a claim against a hairdresser in respect of a hair treatment which was heard and determined by the Consumer Claims Tribunal. The Tribunal ordered the defendant to pay that plaintiff a modest sum under consumer laws. The plaintiff then commenced proceedings claiming damages for negligence and/or breach of contract in respect of the same treatment. When res judicata was raised as a defence, the plaintiff argued that the cause of action before the Consumer Claims Tribunal differed because the court proceedings were for a different cause of action. Yeldham J said that res judicata did not depend on what cause of action the claim was framed in but operated where the two proceedings were based on the same facts. Notwithstanding that, it was decided that res judicata did not apply but only because the Tribunal verdict had not been perfected into an enforceable form. That was a required step under those consumer laws before the Tribunal verdict acquired the status of a judgment. Otherwise res judicata would have applied notwithstanding that the two proceedings were in a different forum and based on a different cause of action.
The Plaintiff’s argument focusses entirely on matters of form rather than the substance and facts of the claims in both proceedings. As in Trawl Industries, the gist of the recovery now sought in the current proceedings in the claims in the representative proceedings is the same. In my view, as the same facts are the basis of the two sets of proceedings, res judicata properly arises and applies to preclude the Plaintiff’s claim in the current proceedings.
Therefore, had I not ordered summary dismissal as aforesaid, I would have found that the Defendant had also made out its case for a stay of proceedings based on res judicata.
Anshun estoppel, which derives from Port of Melbourne Authority v Anshun Pty Ltd (“Anshun”),[14] was the third basis relied on by the Defendant and as an alternative basis to res judicata. An Anshun estoppel operates to “.. preclude the assertion of the claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issued not to have been raised in that proceeding.”[15]
The fact that the representative proceedings were compromised is irrelevant as Anshun estoppel also operates where proceedings are compromised rather than determined on the merits.[16]
The most recent High Court authority on the operation of Anshun estoppel in the context of class actions is Timbercorp Finance Pty Ltd (in liq) v Collins and Timbercorp Finance Pty Ltd (in liq) v Tomes (collectively, “Timbercorp”).[17] In that case the group members were investors in a failed management investment scheme. It was alleged that the promoters of the schemes failed to disclose material facts to the investors and had made misrepresentations. The matter proceeded to trial and the claims ultimately failed. Following that, the plaintiff sought to recover outstanding sums from those investors. In response, those investors purported to rely on defences which had not been argued at the trial of the representative proceeding. The plaintiff argued that an Anshun estoppel operated to prevent the investors advancing those defences on the basis that they should have advanced those individual claims in the representative proceeding.
The High Court said that estoppels, including an Anshun estoppel, only operated between privies in interest. Specifically in the context of representative proceedings, the Court added that a privy of interest between the applicants and group members only exists to the extent of the common questions at the initial trial.[18] Therefore an Anshun estoppel cannot arise beyond the common questions at the initial trial and it cannot be unreasonable for a group member not to have raised a matter which fell outside those common questions.
Ms Sibley submitted that an Anshun estoppel did not arise as there was no commonality of interest between the representative proceedings and the claims made in the current proceedings. I agree that there is at least a lack of commonality of interest in respect of certain aspects of the questions relative to the Applicants in the representative proceedings and those of the Group Members. She also submitted that the claim in the current proceedings is based on breach of duty which falls outside the common questions in the representative proceedings. I consider that to be arguable as breach of a duty allegedly owed by the Defendant was not an issue in the representative proceedings. The common questions in the representative proceedings only related to specific torts. Further, in the current proceedings, damages of the type specifically excluded in the settlement of the representative proceedings by clause 3.2 of the Deed are claimed. Therefore although there are some common facts, the questions are not entirely common as there are differences in the nature of the Plaintiff’s pleaded case in the current proceedings.
Ms Sibley also argued that the position was different in class action claims because the majority of Group Members are not involved in the litigation and, as is more so in the current case, the individual claims of Group Members were not particularised. This draws on Dyczynski v Gibson,[19] and also on Kelly v Willmott Forests Ltd (No 4) (Willmott).[20]
In Willmott, Murphy J accepted that a judgment or settlement of representative proceedings would bind group members to an estoppel in respect of the pleaded common claims and may also bind them to an estoppel in respect of common claims that could have been pleaded in the representative proceedings. To that extent at least, his Honour’s conclusions were consistent with what the High Court would later pronounce in Timbercorp but contrary to that authority, he also concluded that group members in representative proceedings were not precluded from pursuing their individual unique claims without limitation.
The Defendant relied on Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd (“Bendigo”)[21] where the Victorian Court of Appeal held that the limitation of the principle to common questions can only apply where there has been a trial of common questions and that the limitation did not apply where there has been a settlement, as in the current case.
The Court decided that a settlement of a representative proceeding can go beyond just the common questions by reason of section 33ZF of the FCA Act as that supplied the privity which was otherwise absent in respect of individual claims of group members. That section enables a Court approving a settlement of representative proceedings to make orders binding the parties to the settlement or authorising the applicants to enter into and give effect to the settlement on behalf of group members. Such an order was included in the orders made in the FCA approving the settlement made in the representative proceedings.[22]
The Court confirmed, consistent with Timbercorp, that a Plaintiff in representative proceedings could settle those proceedings in a manner that bound the group members, including in respect of the individual claims of the group members.[23] The Court considered that it would be highly surprising if parties to a representative proceeding could not resolve the common claims on terms which also finalised all other outstanding issues between those parties. The Court noted that full releases of all outstanding claims, whether at issue in the relevant proceedings or not, were common in class action settlements.[24]
A contrary view to Bendigo was expressed by the Full Court of the Federal Court in Dyczynski v Gibson,[25] albeit that it is obiter. That view was based on the usually minimal knowledge of an applicant in representative proceedings of any unique claims of individual group members. Further, that group members will not be on notice that their individual unique claims might be settled without their instructions and lastly that the Court approving the settlement will be told very little, if anything at all, about those individual or unique claims because that will not be known to the applicant and/or the applicant’s lawyers.
The two conflicting authorities are at the same hierarchical level. Nonetheless, as Dyczynski v Gibson was obiter, unless I am of the view that Bendigo is clearly wrong, I should follow it. I do not conclude that Bendigo is clearly wrong.
For those reasons, but for preferring Bendigo over Dyczynski v Gibson, had I not determined that a res judicata had properly arisen, I would not have stayed the Plaintiff’s current proceedings based on an Anshun estoppel.
The last basis relied on by the Defendant was abuse of process. Mr Moses described this, appropriately I think, as a residual category which overlaps with situations covered by estoppel.
Tomlinson v Ramsey Food Processing Pty Ltd[26] is a case where the principle, and its overlap with estoppel, was considered by the High Court relatively recently. Although that case is not directly relevant to the current matter,[27] it is instructive in demonstrating that abuse of process is a broader concept with greater application than estoppel. The Court said that the preclusion resulting by estoppel only operated in respect of the same parties or their privies. In contrast, the principle of abuse of process can operate where estoppel would not preclude proceedings or where the plaintiff in the subsequent proceedings was not a party, or the privy of a party, in the earlier proceedings.[28]
The High Court said that abuse of process was “..inherently broader and more flexible than estoppel” and was not limited to fixed categories. The Court said that the principle was capable of application in any circumstances in which the use of the Court’s processes would be “..unjustifiably oppressive to a party or would bring the administration of justice into disrepute”.[29] Specifically, the Court said that principle also operates to prevent double recovery for a given loss that results from a breach of a given obligation.[30]
Mr Moses submitted that the Defendant need only rely on this final aspect if res judicata or Anshun estoppel was not available for any reason. He submitted that the current proceedings, involving the same allegations of acts or omissions by staff at Don Dale and in respect of which the Plaintiff has already been compensated through the representative proceedings amount to double recovery notwithstanding the pleading of the claim as a different cause of action.
He also relied on the administration of justice aspect by reference to the operation of the Personal Injuries (Liabilities and Damages) Act 2003 (NT) (“PILDA”) arguing that the double recovery would be aggravated in that event because the representative proceedings were bought outside PILDA such that the Plaintiff was not subject to the prohibition in PILDA of an award of aggravated and exemplary damages. He argued that this brought the administration of justice into disrepute as the ability to recover amounts in that way defeated the objectives of PILDA.
I agree at least that the current proceedings are an attempt to recover a second time for the same loss and therefore the current proceedings are an abuse of process. Had I not in turn found that res judicata had arisen or that an Anshun estoppel operated, I would have ordered that the current proceedings be dismissed as an abuse of process.
I will certify the matter as fit for counsel and otherwise I will reserve the question of costs and I give the parties liberty to apply in respect of any consequential orders.

[1]Olive & Anor v Oceanview Developments Pty Limited & Ors [2023] NTSC 38.

[2]Spencer v The Commonwealth (2010) 241 CLR 118.

[3]See also paragraph 52 below.

[4] (1954) 94 CLR 112.

[5]Res judicata is sometimes referred to as cause of action estoppel, see for example Trawl Industries of Australia Pty Ltd (In Liq) v Effem Foods Pty Ltd (1992) 36 FCR 406.

[6](2015) 256 CLR 507.

[7](2015) 256 CLR 507 at 517-18.

[8](2018) 265 FCR 290.

[9]Zphere Pty Ltd v Pakis (2022) 165 ACSR 592.

[10][1984] 3 NSWLR 561.

[11](1992) 36 FCR 406 at 418.

[12]Trawl Industries of Australia Pty Ltd (In Liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 418.

[13](1992) 36 FCR 406 at 422.

[14] (1981) 147 CLR 589.

[15]Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 517-18; see also Timbercorp Finance Pty Ltd (in liq) v Collins and Timbercorp Finance Pty Ltd (in liq) v Tomes [2016] HCA 44 at para [27].

[16]Johnson v Gore Wood & Co [2001] 1 All ER 281 at 500.

[17][2016] HCA 44.

[18][2016] HCA 44 at para [53].

[19](2020) 280 FCR 583.

[20][2016] FCA 323.

[21]Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd [2017] VSCA 51.

[22]Order 2 of the orders made by Mortimer J on 15 December 2021.

[23] Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd [2017] VSCA 51 at para [56].

[24]Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd [2017] VSCA 51 at para [57].

[25]Dyczynski v Gibson (2020) 280 FCR 583 at 645 [251].

[26](2015) 256 CLR 507.

[27]As it concerned issue estoppel and not res judicata or an Anshun estoppel. Issue estoppel does not arise on the Defendant’s application.

[28](2015) 256 CLR 507 at 519 [26].

[29](2015) 256 CLR 507 at 518-19 [25].

[30](2015) 256 CLR 507 at 519 [27].