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Res judicata

Manpower PL v Harris [2011] NSWWCCPD 10. Roche DP.

88. Dealing with res judicata, McColl JA (Giles, Campbell JJA agreeing) said, [73], in Habib v Radio 2UE Sydney PL [2009] NSWCA 231:

“The doctrine of res judicata properly so-called applies where a plaintiff establishes his cause of action so that, upon judgment, the cause of action and any matters which were necessarily established as its legal foundation or as the justification for its conclusion, or were legally indispensable to the conclusion merge in the judgment, and no longer have an independent existence and cannot be re-litigated in subsequent proceedings between the parties of their privies: Blair v Curran (1939) 62 CLR 464 (at 531–532) per Dixon J; Anshun (at 597) per Gibbs CJ, Mason and Aickin JJ; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 (at 508) per Deane, Toohey and Gaudron JJ; James Hardie & Co v Seltsam PL (1998) 196 CLR 53 (at [40]) per Gaudron and Gummow JJ.”

89. In respect of consent orders, her Honour said [186]:

“Orders made by consent may create an estoppel as between parties, and, no doubt may be considered for the purpose of determining whether subsequent proceedings would lead to conflicting judgments, however they do so ‘only as to those matters which are necessarily decided’, to ascertain which ‘the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to’: Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 (at 75), per Street CJ and Roper CJ in Eq; see generally the helpful discussion of the issue by Barrett J in Land Enviro Corp PL v HTT Huntley &c (2008) 72 NSWLR 160, [63] – [65]); Abigroup Contractors Pty Ltd, [146]).”

In [90], noted was Isaacs v Ocean Accident & Guarantee Corporation Ltd (1958) 58 SR (NSW) 69, where Street CJ and Roper CJ in Eq held (at 75) that orders made by consent create an estoppel as between parties ‘only as to those matters which are necessarily decided’, to ascertain which:

‘...the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to.’

 

 


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