Sinclair v The Commonwealth of Australia

[1989] HCATrans 70

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MS of 1989

B e t w e e n -

WILLIAM CHARLES GARFIELD SINCLAIR

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

and THE COLLECTOR OF CUSTOMS

(QUEENSLAND)

Defendants

Application by defendants

for permanent stay

DAWSON J

(In Chambers)

Sinclair

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 MARCH 1989, AT 10.29 AM

Copyright in the High Court of Australia

MlT2/l/RB 1 22/3/89

MR L. FORD: If the Cqurt pleases, I appear for the plaintiff.

(of Juliano, Ford & Co)

MR G.A.A. NETTLE:  May it please Your Honour, I appear for the

defendants in this matter. (instructed by the

Australian Government Solicitor)

HIS HONOUR:  Yes, it is your application, is it not, Mr Nettle?

MR NETTLE:  Yes, it is, Your Honour. If Your Honour pleases,

it is principally an application made under

Order 63 rule 2 of the Rules of Court that the

proceeding be stayed, as it were, forever. There

is one ground principally relied upon which is set

out in the notice of motion and it is that,

Your Honour, the issues which the plaintiff seeks
to litigate in this proceeding were so relevant to
the subject-matter of a proceeding litigated last

year in the Federal Court between the plaintiff and

the defendants and determined by the Federal Court

in favour of the defendants, that it was unreasonable

for the plaintiff not to have raised the causes

which it now relies upon in that proceeding so

that it is now estopped.

The principal authority relied upon in support

of the submissions that we make to Your Honour is

a decision of the Full Court of this Court in

PORT OF MELBOURNE AUTHORITY V ANSHUN PTY LTD,

(1981) 147 CLR 589, especially at page 602 in

the joint judgment of the Chief Justice Sir Harry Gibbs

and Their Honours Mr Justice Mason and Mr Justice Aickin.

If Your Honour pleases, there has been but one

affidavit filed in support of the application and

because it is brief and because it somewhat

conveniently sets out the facts upon which we rely,

might I read it to Your Honour?

HIS HONOUR:  I have glanced at the papers. Which is the

affidavit?

MR NETTLE:  It is the affidavit sworn by my instructing

solicitor, Margaret Wendy Secombe on 10 March this

year.

Paragraph 1: she just deposes to the fact that

she is a solicitor and a full-time officer of the

Australian Government Solicitor. In paragraph 2,

Your Honour, she produces a number of exhibits, only

plaintiff against the defendants; exhibit 5, the transcript of the proceedings before His Honour

three of which will I need to trouble the Court with,
they being exhibit 1, the amended a~plication in the

Mr Justice Northrop in the Federal Court, and exhibit 6, his reasons for decision. Might I read

paragraph 3:

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In the Federal Court proceeding the Plaintiff

sought review of an alleged decision of the

Collector of Customs, made in 1982, not to

refund moneys which had been siezed in 1979

and an order that the Collector pay those

moneys to the Plaintiff. They are the same

moneys as constitute the subject matter of

this proceeding. In the Federal Court the Plaintiff did not seek to base its case in

detinue or conversion, nor did it seek mandamus,

and in the course of the second day of hearing

by the Honourable Mr Justice Northrop the

Plaintiff expressly disavowed any wish to

do so. The taking of evidence was concluded and final submissions were therefore made on

thatbasis that the Plaintiff did not wish to

put its case on any basis other than judicial

review.

I refer to pages 112 to 115 of the transcript - - -

HIS HONOUR: Well, I have read all that, yes.

MR NETTLE:  Thank you, Your Honour.

HIS HONOUR:  What is involved in deciding whether or not an

application for judicial review in relation to these
matters necessarily involves the same matters which

the plaintiff seeks to raise in this action?

MR NETTLE:  If Your Honour please, it is submitted that what

is involved is looking first at the statement of

claim in this proceeding and then at the application

in the Federal Court proceeding and deciding, it is

submitted, as you should that the causes of

action which the plaintiff now seeks to argue in this

Court are causes of action which were so wholly

bound up with the causes of the action litigated in

the Federal Court, that it was unreasonable for

it not to have raised those causes of action in

the Federal Court. And if Your Honour decides that

what was said by the Full Court in ANSHUN that the	that is so, then it follows, it is submitted, from
plaintiff should be now taken as estopped from seeking
to litigate the new causes of action in this case. If Your Honour finds that is so, then it is appropriate, it is submitted, as was found by the Full Court, that this proceeding be stayed.

HIS HONOUR:  There are certain matters of fact which are involved,

are there not?

MR NETTLE: It is submitted that you do not have to make any

decision as to facts, that all you need do is look

now seeks to put its case and to decide on the basis of

at the way in which the case was put below in the

MlT2/3/PLC	3	22/3/89
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that comparison that the new causes of action

were wholly relevant to what was argued below.

HIS HONOUR:  What is the difference between the review proceedings

and the proceedings which are contained in this action?

MR NETTLE:  May I answer that by saying that what was involved

in the review proceeding - what was sought

was an order to review a decision allegedly made
by the Collector of Customs in 1982 not to refund

moneys seized in 1979. They were seized pursuant to

section 205 of the CUSTOMS ACT on the basis that

they were - - -

HIS HONOUR:  So that what the review proceedings did not

involve was whether the moneys were properly seized

in the first place?

MR NETTLE: That is correct.

HIS HONOUR:  And what this action seeks to question is just

that matter, is it not?

MR NETTLE: Exactly that.

HIS HONOUR: Well, how are the two the same?

MR NETTLE: For this reason: what was sought below in the first

instance was not only an order to review the

decision of the Collector but an order also that he

pay back the moneys which had been seized.

HIS HONOUR:	Yes.
MR NETTLE:	In the course of argument, it was pointed out by

the defendants that the court could not
grant all of the relief sought unless it first made

a decision as to whether or not the goods had properly

been seized. It was therefore put to the plaintiff

by the court that if it wanted that issue determined

the court would do so but only after amendment and

time had been given.

HIS HONOUR:	You had better read me the passage in ANSHUN then.
MR NETTLE:	Yes, Your Honour. Might I hand to Your Honour a copy of the report.
HIS HONOUR:	Thank you.
MR NETTLE:	And go to page 602 of it, approximately half-way

down, Your Honour:

In these cases in applying the

HENDERSON V HENDERSON principle to a

plaintiff said to be estopped from bringing

a new action by reason of the dismissal of

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Sinclair

an earlier action, Somervell LJ and

Lord Wilberforce insisted that the issue

in question was so clearly part of the

subject matter of the initial litigation

and so clearly could have been raised that

it would be an abuse of process to allow a

new proceeding. Even then the abuse of

process test is not one of great utility.

And its utility is no more evident when it is

applied to a plaintiff's new proceeding which

is said to be estopped because the plaintiff

omitted to plead a defence in an earlier

action.

In this situation we would prefer to say

that there will be no estoppel unless it

appears that the matter relied upon as a

defence in the second action was so relevant

to the subject matter of the first action
that it would have been unreasonable not to

rely on it. Generally speaking, it would be

unreasonable not to plead a defence if,

having regard to the nature of the plaintiff's

claim, and its subject matter it would be

expected that the defendant would raise the
defence and thereby enable the relevant

are a variety of circumstances, some referred to in the earlier cases, why a party may

issues to be determined in the one proceeding.

justifiably refrain from litigating an issue

in one proceeding yet wish to litigate the

issue in other proceedings e.g. expense,

importance of the particular issue, motives

extraneous to the actual litigation, to

mention but a few. See the illustrations given

in CROMWELL V COUNTY OF SAC.

It has generally been accepted that a party

will be estopped from bringing an action
which, if it succeeds, will result in a

judgment which conflicts with an earlier
judgment. In this respect the discussion	in BREWER V BREWER is illuminating.

There it was held that the wife's omission

to plead matters which would have constituted

a discretionary bar to her husband's suit

for dissolution of marrige on the ground of

adultery did not estop her from raising those

matters in subsequent proceedings for

maintenance. Fullagar J, with whom Dixon CJ

agreed, said -

the following. I shall not read that to Your Honour.

This was also the conclusion reached by Williams,

Webb and Taylor.

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The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is

obviously an important factor to be taken

into account in deciding whether the

omission to plead can found an estoppel -

HIS HONOUR:  But, you see, now, that situation does not arise

here. In the first place, of course, we are not

concerned with a defence but we are concerned

with a claim - or two claims.

MR NETTLE:	Of course.
HIS HONOUR:	There is no danger of conflicting judgments

albeit there might be a danger of multiplicity

of litigation here, is there?

MR NETTLE: Certainly not.

HIS HONOUR:  If the plaintiff chose to proceed under the

AD(JR) ACT, then he was entitled to do so and if

he chose not to raise in those proceedings other matters which, if they were to be raised, had to be raised - could be raised in a separate action, then he

was entitled to do so.

MR NETTLE: It is submitted not, Your Honour.

HIS HONOUR:	Why, Mr Nettle?
MR NETTLE:	Because, may I ask Your Honour to look at the

application in the Federai Court proceeding.

HIS HONOUR:  I see that he was asked and he said that he

did not wish to raise these matters in those

proceedings.

MR NETTLE: 

No, no, Your Honour, the application, that is to

say, the actual application which he filed in the
Federal Court which is exhibit 1 to the affidavit.

On the first page, what he asks for, clearly

enough, is review of the conduct of the

respondents in failing to return the moneys.

However, might I go to page 2 where it is said that:

The Applicant is aggrieved by the said

decision not to return the said money and

the ..... failure to decide to return the said

money because:-

(1) The decision not to return the said

money and the conduct in not returning .....

and failure to decide to return the said

money were,rwt authorised by the enactment

pursuant to which the same purported to

have been done in that -

MlT2/6/PLC	6	22/3/89
Sinclair

(a) the said money did not constitute

"forfeited goods" liable to seizure

under CUSTOMS ACT 1901 .....

(b)

the fourthnamed Respondent and further did not have belief that the said money

constituted "forfeited goods" at the

time of seizure thereof or at any other

material time .....
(c)	the Respondents or one or more of them were and are improperly in possession of the said money and the same ought to be returned - - -

HIS HONOUR:  The issue was whether or not a decision not to

return the moneys was a correct decision administratively

before the Federal Court.

MR NETTLE:	That is correct, Your Honour.
HIS HONOUR:	That is not the issue in the proceedings which are

brought here, is it?

MR NETTLE:	That is also correct, Your Honour.
HIS HONOUR:	Yes. Well, how can you say that there is, as it

were, an issue estoppel or a quasi issue estoppel in

relation to the latter by reason of the Federal Court

decision?

MR NETTLE: Because, Your Honour, of the grounds which appear at

page 4 of the application.

HIS HONOUR:  But the grounds cannot matter if, in fact, the issue is different.

MR NETTLE: Well, with respect, no. That is the very point of

ANSHUN. The point of ANSHUN was whether or not the

idemnity ought to have been raised in the proceeding

below.

HIS HONOUR:  But you cannot say something ought to have been

raised which could not have been raised. In other words,

the issue of whether or not the moneys were rightly

seized in the first place is something which, as I

understand it under the relevant Act, could not be

raised in the Federal Court in those proceedings.

MR NETTLE:  It could not have been raised in a proceeding

pursuant to the AD(JR) ACT.

HIS HONOUR:	Yes, that is right.
MR NETTLE:	It most certainly could, it is submitted, have been

raised in the same proceeding, either in the accrued

ju~isdiction or pursuant to the cross-vesting legislation.

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HIS HONOUR:  It is a long way from ANSHUN to say that a plaintiff

is obliged to avail himself of the accrued

jurisdiction in order to raise a matter which is more

appropriately raised, perhaps, in another jurisdiction

and if he does not do so he is estopped from raising

it in that other jurisdiction. That is going a long

way.

MR NETTLE:  In general, with respect, I would agree but it is

submitted it is not going a long - - -

HIS HONOUR:  And, in particular, in this case.

MR NETTLE: Well, the submission is no, for this reason: the

very point was canvassed.	The opportunity was given
quite clearly, "I have the jurisdiction, as I	for it to be dealt with at one, the judge saying
understand it, and I will deal with it if you wish me
to."

HIS HONOUR: Well, he did not have the jurisdiction, in fact, if

one likes to be pedantic about it. He only had the

jurisdiction, really, when it was raised·. That is the

nature of accrued jurisdiction, it does not exist in

the abstract, as it were.

MR NETTLE: Well, it was raised.

HIS HONOUR: Well, it was not raised. What the plaintiff

disavowed: was his intention to pursue these matters in

those proceedings.

MR NETTLE:  That is correct, and my submission to Your Honour

is that if he had really wished to raise that matter

then was the appropriate time to do so. Not to do so

in a proceeding in which he was also contesting,

albeit by a side wind, the seizure was something

which was so unreasonable as to give rise to the

estoppel for which I contend.

HIS HONOUR:  You see, you have got a number of difficulties

to overcome. One is that it is one thing to say

that if a defendant does not raise a defence which
naturally arises on the claim which is made against

him, he is estopped from raising it in later

proceedings on the basis of an analogy with issue

estoppel. It is an entirely different thing to say

that the plaintiff is bound to raise claims in one

action which could be raised in another, particularly

when the jurisdiction which would have to be relied

upon to raise the claim is a jurisdiction which is

merely an accrued jurisdiction flowing from the nature

of the claim which is made in the particular court,

in this case, the Federal Court. But even if you overcame those difficulties, the question arises

whether or not , in the Federal Court, the matters

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Sinclair

could have been properly raised in the accrued

jurisdiction having regard to the fact that the
proceeding that was instituted there was a particular

proceeding under a particular statute of a particular

nature.

MR NETTLE:	Your Honour, might I deal with each of the - - -
HIS HONOUR:	I am not suggesting - I am just saying these are

difficulties. Now, in addition to that, of course,

the action is one which, if it were to go to trial,

would involve at least considerations of fact, is

that not so?

MR NETTLE: If it went to trial?

HIS HONOUR:	Yes.
MR NETTLE:	It may well involve issues of fact, yes.
HIS HONOUR:	And it may be appropriate to postpone the determination

of these matters which I raise with you until there is

further exploration of what is involved in the action.

MR NETTLE:  Your Honour, I hear what you say. I would be

appreciative of the opportunity to meet each of the

three difficulties that you mention, however.

HIS HONOUR:	Yes.
MR NETTLE:	If you do not wish to hear from me - - -

HIS HONOUR: Well, what I have in mind and it might be obvious

by now is that I should remit this matter to the

Federal Court rather than sit here attempting to

determine these matters, somewhat in a vacuum, when

the Federal Court is a more appropriate body to

determine them in whatever order it sees fit,

because, certainly, one thing that is clear is that

I would not embark upon a trial of the action.

MR NETTLE:	No, Your Honour, I contemplate that and, indeed, the second order sought, as it were, in the
alternative is a remission order.

HIS HONOUR: Yes. Well, why is that not the appropriate

order, to remit the whole matter so that it can be

dealt with altogether to the Federal Court?

MR NETTLE:  Clearly, if Your Honour regards that as the appropriate

order, it is.

HIS HONOUR: That is what I am exploring at the moment. That is

the purpose of the questions which I am putting to you.

MR NETTLE: 

The view which I took, Your Honour, and which I had

sought to urge upon Your Honour was that the matter
wa~ so clear even from the pleadings, as it were,

MlT2/9/PLC	9	22/3/89
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that it was one proper for you to dispose of now. That

the three difficulties which you mention are difficulties

which it can be demonstrated,it-issubmitted, are not

truly difficulties at all and that having reached that

point that you ought then make the order which is

sought.

HIS HONOUR:  Yes. All right, well, perhaps you will address me

on that.

MR NETTLE:  If Your Honour pleases. As to the first difficulty,

Your Honour, that is to say, that what is said in

ANSHUN is confined to a defendant as opposed to the plaintiff in this proceeding, m.ight I ask Your Honour

to go back from page 602 in the report to page 598

where the long passage culminating in 602

begins. In the first full paragraph on that page
reference is made to the principle in HENDERSON V HENDERSON

from which the ultimate finding is extracted.

The critical issue, then, is whether the

case falls within the extended principle

expressed by Sir James Wigram VC in

HENDERSON V HENDERSON. The Vice-Chancellor

expressed the principle in these terms:

"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."

HIS HONOUR:  You see, those principles apply very aptly to a

case where a defence is involved because, of course,

it is the plaintiff in his claim who stakes out the

subject-matter of the litigation and if a defence is

not raised when that subject-matter has been staked
out which properly could be raised within the confines

of the subject-matter, then the party failing to raise

it can be penalized in this way. But you cannot force

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under this principle, can you, a plaintiff who has

alternative ·causes of action available to him to

pursue both when he chooses to pursue one, particularly

when one of the causes of action is distinct in itself available under an Act of Parliament and entails quite different considerations from the other.

MR NETTLE: Well, Your Honour, it is submitted, yes, squarely

the principle does apply to a plaintiff equally as

well as it applies to a defendant.

HIS HONOUR: 

How can it?

MR NETTLE: 

If a plaintiff chooses to put his case in one way and to not pursue it in another which was

reasonably open to him on the facts in issue before
a court, he may not then come, it is submitted,
before another court and seek to reventilate the same

facts put in the form of a different cause of action.

HIS HONOUR: 

Why not?

MR NETTLE: 

Because it would be unreasonable not to have brought

forward all of the ways in which he puts his claim
in the litigation.

HIS HONOUR: But, you see, the principle there is that the

parties cannot open the same subject-matter of

litigation. It is not the same subject-matter. It

may be that the plaintiff will be penalized by way

of costs for not having raised it but one cannot say

upon some analogy with issue estoppel or res judicata

that the matter has been raised when it has not.

MR NETTLE:  Your Honour, it is submitted that it must be the

same subject-matter for - - -

HIS HONOUR: Well now, how can you? Either it is raised or

it is not and the principle in HENDERSON V HENDERSON

is based upon the fact that it has been raised in

the litigation and the defendant chose not to raise a

defence which was available to him in relation to that

subject-matter. But here the matter has not been

raised and it does not matter that the judge gave the

plaintiff an opportunity to raise it, that is not to
the point; it simply has ~ot been raised, it was not

before the judge.

MR NETTLE:	I would seek to answer that by saying this: what was raised in the Federal Court was a requirement
by the plaintiff that the moneys be returned to it.
How it sought to substantiate that requirement was
pursuant to the AD(JR) ACT.
HIS HONOUR:	Yes, but the subject-matter of the litigation was

whether an administrative decision not to return the

mqneys had been wrongly made, not whether the moneys

had been wrongly acquired in the first place.

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MR NETTLE: Well, it is certainly one way, with respect, of

expressing the subject-matter and I would choose, if

I might, to say that the subject-matter was whether

or not all of the issues sought to be argued in the

grounds were correct.

HIS HONOUR:  Not only was it the subject-matter by the choice

of the plaintiff but it was the only subject-matter 'Which	he could raise, as I read the judgment, if that is
correct. It was the only subject-matter which he
could raise under the AD(JR) ACT.

MR NETTLE:  It was certainly the only which he could raise under

the AD(JR) ACT.

HIS HONOUR:  And if he chose to proceed under the AD(JR) ACT

and not under common law or some other way,

that was his choice.

MR NETTLE:	Yes, it was.
HIS H0NO~R:	So, that the subject-matter of the action was

that which arose under the AD(JR) ACT, nothing more,

nothing less.

MR NETTLE:  Your Honour, it was open to him in the same proceeding

to have proceeded as well at common law.

HIS HONOUR: That is true but it is not a question of

whether it is open to him, it is a question of what

the subject-matter of the litigation was.

MR NETTLE:  May I put it another way: it is open to a plaintiff

to pursue a claim in contract, at the same time, in

tort. If he chooses to pursue it solely in contract,

it would be unthinkable, it is submitted, that he

would not thereafter be estopped from litigating a

claim in tort.

HIS HONOUR:  I do not see why. If you could point me to

anything that is said in ANSHUN which is to the contrary

of what I have just put, well then, do so.

MR NETTLE: That is to say, that a plaintiff might not, on the

same facts, for the same relief, litigate in tort

where he had previously litigated in contract?

HIS HONOUR:  Yes, he would be penalized in costs if he did

so but once having marked out the subject-matter of	the action, that is, the issues which he raises, they
are the issues in relation to which in one way or another, either by res judicata or by estoppel -
they are the subject-matters upon which those
particular principles will operate. But you cannot
invoke them in relation to something that has not been
raised.

MR NETTLE:  Your Honour, I do not want to waste your time and I know it is limited but -

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HIS HONOUR: Well, I may be wrong but you may convince me to the

contrary. But it demonstrates that there are matters

here which are susceptible of argument and which are

not so clear, perhaps, that I ought to determine

them here and now, and I think, from your part,

you would probably rather that I did not: my

current mode of thinking as opposed to remitting the

matter.

MR. NETTLE;:  Yes, Your Honour.

HIS HONOUR: Well, that is putting you in a difficult position

but if you do want to pursue that line of argument

to convince me that in fact a plaintiff can be

estopped, to use that word in a non-technical way,
from raising a cause of action which is available to

him and which he has not previously raised by

with those two defences, then do so, but I find	either res judicata or issue estoppel or some analogy
difficulty with that notion at the moment.

MR NETTLE: Your Honour, all I was about to say, to complete

the example I was giving you, to take an example:

if one were to sue his solicitor for damages suffered

as a result of breach of retainer but failed to

sue also in negligence, fail in the claim on

contract, he could not thereafter turn around and in

a separate proceeding institute for the same damages

because of a negligent duty to take care.

HIS HONOUR:	But the issue may be the same there whether he was entitled to the moneys either in contract or in
tort, whether he was entitled to the return of those
moneys upon the basis that - I am sorry - if he was suing, it would be in negligence either way, would it not?
MR NETTLE:	No, there would be a breach of an implied term,

it is submitted, for contractual negligence but a

negligent breach of an implied term - - -

HIS HONOUR: Well, contractual negligence or tortious negligence,

it would be the same thing, in essence, the same

cause of action. But it is not the same cause of

action - and it would have been raised on the pleadings,

one way or the other. What would be pleaded would be

facts which raised negligent conduct and whether or
not the case was put in tort or contract would not

matter, but this is not that sort of case.

There is no doubt that a proceeding under the AD(JR) ACT

is quite discrete, different in form, the cause of action

is quite different and the factual basis is quite

different; the factual basis being that it is claimed

that a wrong decision was made to retain the money

rather than, as is alleged in the action, that the

money was wrongfully seized.

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MR NETTLE:  Your Honour, clearly, with respect, you are right,

they are quite distinct causes of action but what was sought pursuant to AD(JR) was a refund of the

money. The way in which it was sought was to say

the decision not to refund it was wrong. The way in

which it was sought to show that that decision was wrong was to say the goods were improperly seized. What is sought in this proceeding is a return of

the money. The way in which it is sought to justify

that return is to say the goods are improperly seized.

HIS HONOUR:  Yes. Well, I see the way you are putting it but

even that, it seems to me, might not carry you a~ far as you want to go because even if you were able to say - perhaps

if I can put it a different way. It is not possible

to say in the action that was brought by the plaintiff
in the Federal Court which was an action under the

relevant Act that the plaintiff ought to have raised

even if he did not, the matters which you allege

because, indeed, under that Act, in that proceeding,

he was not able to raise those matters.

MR NETTLE:  Under the Act he was not. In the proceeding he

was.

HIS HONOUR: Well, no, the proceeding that was there was a

proceeding - you cannot force a plaintiff to

bring a particular proceeding. Under the proceeding

which the plaintiff brought, he was not able to

raise those matters.

MR NETTLE:  Had he chosen to do so, he could have.

HIS HONOUR: Well, had he chosen to expand the matter, yes,

but that would have, in effect, · be bringing

a different action which the Federal Court would say

it could become seized of because of an exercise

of accrued jurisdiction but it would be a separate

and distinct action. That is the difficulty. I

mean, that is the area of argument between yourself

and myself.

MR NETTLE:  Your Honour, it is no more a separate action, it

is submitted, than to add a claim of cormnon law

negligence to a claim already instituted in contract.

HIS HONOUR: Well, it seems to me that it is.

MR NETTLE:  It is a new cause of action but in the same proceeding.

HIS HONOUR: It is not in the same proceeding. It is not a

proceeding, for instance, under the statute which is

confined in its nature.

MR NETTLE:  I am sorry, I used the word "proceeding" as one
action, one piece of litigation, instituted - - -

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HIS HONOUR: It is, if you like, a different matter. It is

a matter over which the Federal Court would have

no jurisdiction were it not for the accrued

jurisdiction which His Honour in the Federal Court

said that he was prepared to invoke or rely on

or whatever the appropriate term is.

MR NETTLE: Your Honour, I perceive I am not doing well but can

I say simply, yes, he would have and he would have

as he recognized because of the court's CROSS-VESTING

QF JURISDICTION ACT. He had the same jurisdiction to

entertain a State matter as would have a State court

and he says as much:  "I've got that, I'm happy about

it. All I want to know is whether you, the plaintiff,

wish to pursue it". What the plaintiff might have

done had he chosen to do so was in the same

proceeding, action, piece of litigation, have added to

his AD(JR) cause of action - - -

HIS .HONOUR: He might have done it but he chose not to.

MR NETTLE:  He did.

HIS HONOUR:  And he could not be forced to. And what you say

in the end then is, when you come	to this principle,
what the judge had before him was	a proceeding under
the AD(JR) ACT.

MR NETTLE:  Yes.

HIS HONOUR: That was the subject-matter of the litigation.

And it was upon that proceeding or in that proceeding

that he gave his decision.

MR NETTLE:	Yes.
HIS HONOUR:	So, his decision did not necessarily involve an

adjudication of something which ought to have been

raised as it would have been had there been - the

subject-matter of the litigation had been staked out

by the plaintiff in a more general way and a defence

which could have been taken had not been taken.

I think it comes down to this, that ANSHUN notwithstanding,

defences are different to claims and ANSHUN does rot deny

to a plaintiff the opportunity to separate his causes

of action if he wishes to do so and if they are

in fact separate and distinct, particularly on a

factual basis, and if he does do so and there is a

multiplicity of litigation, the penalty which he

incurs is costs. But you cannot have something akin

to an issue estoppel or res judicata in those

circumstances.

MR NETTLE: If Your Honour pleases.

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HIS HONOUR: That, at least, is where the argument lies, is it

not?

:MR. NETTLE:  Yes, Your Honour.

HIS HONOUR: Well, I do not want to determine that necessarily

at this stage particularly as it seems to me that -

I will hear from Mr Ford - there are difficult

questions involved which are more appropriate to be

determined in the context of the whole matter and

that it may be desirable, in fact, it appears to

me to be desirable at the moment that the matter

be remitted to the Federal Court. Do you want to

address me on that particular question?

:MR. NETTLE:  I am certainly more pleased that Your Honour

should remit it than decide against me, obviously.

HIS HONOUR:	Yes, and if it is not clear and is a matter which may involve the broader aspects of the litigation,
it is better that it be remitted, that is the point
I am putting.

:MR. NETTLE: If Your Honour pleases.

HIS HONOUR:	Well now, what do you say, Mr Ford?
:MR. FORD:	If Your Honour pleases, as to the matter being remitted
to the Federal Court of Australia, I would consent to
that. There are various issues of fact that will have
to be determined and undoubtedly - - -
HIS HONOUR:	What are the issues of fact then? Mr Nettle says

there are none.

:MR. FORD:	Mr Nettle, I suspect, says there are none, Your Honour,
on the basis that Mr Nettle says the matters
have already been litigated~ But..:a:ssuming that· Your Honour or that
the Federal Court of Australia allows the action to proceed,
then in that situation there would have to be some
inquiry into - - -
HIS HONOUR:	That is true but he says the action is barred on

the principle which is contained in ANSHUN.

:MR. FORD: Indeed, Your Honour, and my respectful submission is

that it is not, that the issues before this honourable

Court at the moment are entirely different and distinct

and severable from the issues that were before the

Federal Court of Australia before Mr Justice Northrop.

Your Honour may see from the judgment and, in

particular, from the affidavit of Ms Secombe that, in

fact, some effort was made to raise some matters in

the pendent jurisdiction and there was some discussion

b~tween Mr Wilson of counsel who appeared for the

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applicant then and His Honour as to whether those

were properly raised. What then occurred, Your Honour,
was that the applicant was placed in the position of

if he wished to rely on those matters which he believed

had been pleaded but His Honour did not of virtually

repleading the whole action. His Honour indicated in

the passage that has been referred to in the affidavit

that he would adjourn the proceedings. That would

require the application to be repleaded, the defence

to be repleaded and it would virtually be running the

action over again. In my respectful submission, taking

that into account, the prejudice to the defendant in

this separate set of proceedings being brought is

substantially smaller because even if we had followed

His Honour's suggestion, the results would have been

substantially the same.

Now, Your Honour, as far as ANSHUN is

concerned, I do not submit that ANSHUN applies. In

fact, I submit it does not apply but if my submission

is wrong then, Your Honour, with respect, I would

submit that is one of the types of case that comes

clearly within the dictum referred to starting at the

bottom of page 602 where His Honour said:

In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a

party may justifiably refrain from

litigating an issue in one proceeding yet

wish to litigate the issue in other

proceedings -

and His Honour goes on to refer to expense and

importance of the litigation and so forth.

Now, Your Honour, I have some sympathy for the

argument my learned friend raised regarding the

breach of contract in a retainer matter but in that

sort of situation the facts giving rise to the

legal relief would be identical whether one raised

breach of contract or negligence.

HIS HONOUR: Well, the issue is negligence, whether it be by

way of tort or by way of breach of contract.

MR FORD: Indeed, Your Honour, involving just duty, breach

and damage. This is an entirely different situation,

Your Honour. One may think that if the matters

now before this honourable Court had been raised

before the Federal Court back when the writ was issued in 1987, the proceedings would have been substantially complicated. After all, detinue

and conversion would involve arguments about the

STATUTE OF LIMITATIONS and mandamus or an application

for a declaratory relief would have, invariably,

involved debate as to the doctrine of laches.

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Now, Your Honour, the argument relied upon by my

learned friend andwhich was adopted by His Honour

at the hearing which, in his view, allowed the
matter to be put squarely before the court, was

not the accrued jurisdiction but the cross-vesting

legislation and it is pertinent, in that context

to note, Your Honour, that the cross-vesting

legislation only came into force on 1 July 1988. Your Honour, that was some three months prior to

the case actually being litigated when all

interlocutory proceedings had been completed. That,

in my respectful submission, should give some colour,

some context, to the applicant's decision not to

proceed with those causes of action, particularly having regard to His Honour's views as to the way

the matters have been pleaded.

Your Honour, with reference to the matter being

vexatious or oppressive, quite clearly a test

for vexatious would include a situation where arguments

had squarely been raised before a court, had been

thrashed out, as it were, and decided. That would be

a clear case of a vexatious and oppressive case. In

that regard, Your Honour, Order 63 rule 2 requires

not only that the matter be vexatious but also that

it be vexatious and oppressive.

In this particular case, Your Honour, the

matters, of course, could not have been squarely
dealt with before the court until 1 July 1988 when
the cross-vesting legislation came into play and

consequently, at least in so far as the pleadings

and contentions of fact and law were concerned, those

matters were not before the Federal Court and it
would have required a repleading of the whole case.

In terms of the question of whether bringing the

matter up now fits the second limb of that part of again, the question of the cross-vesting Act and

when it commenced comes into play in that either way

I suppose, also, Your Honour, a question of balance of

there would have been virtually separate litigation.

convenience is also of some relevance and in that
regard I could perhaps merely mention the fact that

this is a proceeding by an individual for recovery

of moneys allegedly wrongfully seized as against the

State and, in my submission, in those situations

the balance of convenience should perhaps go in the

direction of the individual. There should be some slight adjustment of the balance in that direction.

Your Honour, there are a number of authorities

that I had intended to refer Your Honour to if the
matter was to be fully argued but I have no doubt

Your Honour has heard all the cases raised before. I

would simply confine myself to saying this particular

MlT3/3/PLC ..	18	HR FORD	22/3/89
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action is not vexatious or oppressive and that it

should be allowed to continue or at least remit it
to the Federal Court where it can be fully argued

out in the context of Order 20 rule 2 of the

Federal Court Rules. Thank you, Your Honour.

HIS HONOUR:  Thank you, Mr Ford. Did you want to add anything,

Mr Nettle?

MR NETTLE:  No, thank you, Your Honour.

HIS HONOUR: This is an application for a permanent stay upon

the basis that the matters sought to be litigated in
this action are matters which could have been but

were not litigated in proceedings before

Mr Justice Northrop under the ADMINISTRATIVE DECISIONS

(JUDICIAL REVIEW) ACT.

There is an alternative application, is there

not, Mr Nettle, for remitter to the Federal Court?

MR NETTLE:	Yes, Your Honour.
HIS HONOUR:	Even if the matters, which are the subject-matter of the action, could have been raised before
Mr Justice Northrop, they were not, and they are
distinct matters which give rise to a different and
distinct cause or causes of action.
It is a real question which I do not purport to determine here whether the principle recognized
in ANSHUN would extend so far as to prevent a plaintiff
raising a cause of action which is distinct in a
separate action, he having chosen not to raise it
when he could in other proceedings. It seems to me
that that is a matter, at the very least, for argument
and the argument would be better conducted in the
context of the whole of the proceedings which, certainly if they go for trial, will raise issues of fact which it is inappropriate to determine here.
For those reasons, it seems to me that I should accede to the alternative application and refuse the
first, namely, that for the application for a
permanent stay.  I therefore propose to remit the
matter to the Federal Court and to make the ordinary order for remitter, to reserve the costs of this application and to certify for counsel.

Is there anything else that would be needed?

MR FORD:	No, Your Honour.
MR NETTLE:	Not for my part, thank you, Your Honour.
HIS HONOUR:	Very well then, I will make that order.

AT 11.11 AM THE MATTER WAS ADJOURNED SINE DIE

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