. * CATCHHORDS Res wiadieata - action ta vecover amounts due upon nokices of assessment of inceme tax - earlier action ta recover amounts due under fhe same notices of assessment - amount sued for in earlier action one tenth of amount actually due - later action to recover the correct amount - whether doctrine of res judicata applies - whether public policv requires exception to the operation of the clactrine. Income Tax Assessment Act 1934. ss. 177, 294, 207, 268 and 209 TERENCE J. CHAMBERLAIN v. DEPUTY COMMISSIONER OF TAXATION No. A.C.T. G40 of 1986 Coram: Sheppard, Neaves and Miles JJ. Date : 17 February 1987 Place: Canberra IN_THE FEDERAL COURT OF AUSTRALTA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY No. A.C.T. G40 of 1986 GENERAL DIVISION Qn appeal from the Supreme Court of the Australian Capital Territory BETWEEN : TERENCE J. CHAMBERLAIN AND: DUFUTY COMMISSIONER OF TAXATION Respondent MINUTES OF ORDER JUDGES MAKING ORDER: Sheppard, Neaves and Miles Jd. DATE OF ORDER > 17 February 1987 WHERE MADE : Canberra THE COURT ORDERS THAT: L. The appeal be clismissed. 2. The appellant pay the respondent's costs of the appeal. NOTE:Settlement and entrv of orders is dealt with in Order 36 of the Federal Court Rules, DISTRICT REGISTER D GENEFSL DIVTSTONU ' of TERPUCE TT, CRATBERCL ATH sroelline 1s he et CREME CCMMESTIONER CF TSNETTON SFD, NEATVES and tiles tas 7 yaa 2 Pal r on ' Be aa) py om td ber"a ty HY ec Pay Pan} B} EERSONS FOR TWEGMENT TRE Comet: This is an appeal from a outdamenc of fhe Supreme Vadament be entered foe rhe a ~ a] rwi - wo aa pry so my S ei 1b « b —~ Tw = pay Tv reaspendeanr the olarnbtit€ ain the pereecsedinss) in rhe am of 747405. Ta rhe =peecital inders=ment upon che weit te whioch The Gk eo selings vers vommenced. This s1um TAX pavakle purenann 7s a number af peeipcsa sf Raesasmenr and amended Assesanenr oof inecme rax ussued fo, rhe vears -f inccte for additional fax in cespecn oof all buir one of rhea veara., A numbet of credirs ware allowed, Ome ar Phese was fog the aum of $27,557.92 pard oon F Anaust Lee4. Tr will be necessary to say more of chat sum in due conrss, After che ailcwans= -f the ewredtts, an amounc of $239,021.29 was said Fo rematn due an parable. The respondenrc claimed further additional rax upon chat mim and his accounts for che difference benween che amount of fhe wvidemenc and fhe amount of $230,021.29 claimed in rha wrirc. sont rhis agpeal che |assenrial paradrcaph of the appellanr s défence was vacadraph 4 which was as follews:- "Th inewer orm fhe enrigs scaremenr af claim che defendanrn savs that in an acrinon Ereeohr bv cre plainrift aTainst che lefandare ino che fupreme Toe & tallan Capiral Terricacy, the "hot howas Depucy Commisaconec of Taztacicn J. Thamberclain,. che viaincift sr Ceared n ice Feo the rtommencement oct Fiese proceedinds against cone defendanr fre BAS,FE7 52, plus 3115.00 for masra, Feo rhe same debe and oan respsecr of rhe same crause of arricn a3 that alleqged in rhe aratremenr of claim prerein: and the said tudamenc scill remains in focre", Farticulars of rhe widement referred te were oviven. Tk was SALd ro have been cecovered in proceedinds between che present aa" cf 1784), The weir in the proceedings was said re have been 1984 and oo cidemenr was ordaced r2 be anreced -n e Aumusr 136-, Faraacagh 7 of the defence said thar. in the premises, che plaintiff «rhe resvoondent oOo this appeal) was iD estopoed and precluded from maintaining nis claim in fnzs action Against the defendant (the appellant). a ry) rs =] Dy et r x uv rary 'D Fh b oe)1b zi fal) m ze] pay 1D Py) fonps in paraqraphs &. 2 and 10. ence was nor relied cipon in the appeal, but far eempleareness it is necessary te refer cm 1th. Faragdrapn 9 was in the follewims teem: - '2, Furthermers., and in of aqreement between the varc1ss inter alias, as follows:- a. Wirhoaur admission of liability, nthe def would coansenr [> didement beirzdg against him in che aforesardi "nuerew aActien in rhe sum 3f $25.°97.92 reverhec with qosts sf $115.00, o. The defendant would forthwith sar r aforesaid monies wursuant FQ The 5a judament ca the plaineiff. tT. The detendant would forthwitr withdraw all Dutstandind ebisecrions Lata) unerme fax assessmencs issued Eso hrm in respect of income sarned up oro and including che financial year eanded 30 Tine 1984, d. The plaintiff would accept rhe aforesaid payment and withdrawal cf oucsranding abiactions in full and final sarisfactron and discharge of anv claims which the elainciff then had, ce bur £ rhe Sati aaqrsemenc mighs rave had, against ' isfandanc'. Bry paragrapn 2 of the dsfence ir wis pleaded Fhac oan 7 Sunuise Lsed, pursnanct co rhe agreemenc alleded in waragdraph 2, fhe appellann pati of che respondent the sim of 425,597,572 and arte for cosrs, "which wavymenr the wolain-iff asereptad, and the et the defences: Faraaqragh Lo of rt Fhe premise , alleging that the appe in issue in the respondent's replv, - fay These paraqrapns were p The alletvations in para. 8 of the defence were denied. ne in ny) As mentioned, the writ of summons issued D7 tne respand rhe present proceedings contained aA special indorsement: see ules of Fhe Supreme Couer., Tr rules © and # «nf Order 4 of che #&F set our particulars of seach of che notices cf assessment which chowas oc tiarmedl ard rhe reedtits which were allowed. voois, "THE FLAINTTIFF = due to che CLown foam rae The cé#spondenr had, a3 sued the appellanc in scoceedinis in tne Supreme CToucr of che 0. ASF Of 1L3B4), The Australian Capital Territory (No. $§ wWeLe was also specially words, "THE PLAINTIFF'S CLAIM a debbt due ro the Crown from rhe Detendant in respect a7... Followad the same parriculars as peacaedinas. In « nor yes of assessment was epeciited alend w Rursiant rout, Tesdirs were allowed, bir these, of tose, dij man include che amount of 225,557.87 woich was allowed Rr war af The rhe meade worn balance should have been $255,579.25, 16 was shown as 225,557.92, precisely one tenth «f fhe correct amount. This was the amount which was claimed ab che beainnina "f the indorsenent. Tt was Tlaimed again ac Fhe end of the indorsement which conelided with the words, and rhe plainriff claims the sum «of 375,557 92 far dete and $115 for costs". Ther? 2.2 no widenre of how whan appears fo hays been a alaving arichmarical eeror cama oto he made. There ware no pleadinras in action Mo. S.C, AA7 oF 1984, Sn appearance was entered on A Auqusr 1994, Qn 3 August Lert 1 Tadamenr fey rhe Flainriff in the sum of $25,557.42 toyerhnss with "srs ta be assessed and agreed ar s115.0c¢, oJhoa Tundament in the arcicn was ooedered ta be enqrered cm 4 lienyse 1344, che same day upon which the appearance vas enraged, Tha Vidamenr was in rhe Following rerms:- "Terms ot Searcctiement naving beer filed herein iT Te THIS Dac ADMD hat rhe Flainniff recover aqvainse the Defendant the sum sf $735,557.92 for debt and Sili.0d For easts", Tn Fhe instant procssdinvs the anlvy evidence -shich was lad in "ie respondenn's case comprised fl he oneftiries of assessmenr vhicth me. ware specified un the iunidersement ta he writ and certain a tertificates under vequlation S? of che Income Tax Feaulatians showing the amount remaining due and pavable with respect fo sach assessment. The notices of assessment were plainly admissible pursuant to 5. 177 of the Income Tax Assessment Act 1934 ("the Act") and rhe certificates pursuan + a a Lay '1 Es im cw ed Qon Theres vas thus no evidenc= of che reason whe the arrareanrc that the appeilant withdrew ob 1a Db n Pad Py s)oria Tt 'y assessment, af seme of them, 45s a cenéition of fhe agreemenc which was 4ntered into. Indeed, thers was no evidence chart there were any such notices of abrecfion ar All No applicanion was made fo sar aside che tidamenn. Te would have been oren oro che woresenr ssspondent t- make ich an application. in the absence af =erideance and actumenc,. 17 ecssiblé tc say whether such an appliraticn would have succeeded respondenr, t€ hs had mad= sucn an aeplictaticn, ars veterred rs un FG. Youna The Law of C¢ 5 msenr at op. 122-9. Tr vs sinnecessacc TO SA9 more of char marter. Te can have na relevance ora the outeame of this appeal. Db om r iT n w ti Tt oi o m weaf Ie =) a c a) b mh or i) ma] ryow b te « "1 aft b pars ecfe} vw The respond ace staturery aun nature. Ther arise by reason of the operation Of ss. 204, 202 and 209 of the Aer, feceioan 209 provides chat anv tax tinpaid may Fe sued far and recovered in anv Course of qTomperent wyisdicrion E77 the Commissiscner oc a Devouty Tommissioner suing in his official name. The word "tax" includes additional tax ocunder s. 207 m€ rhe act. feactron 298 provides rhak income tax, when 14 becomes due ard pavable, shall be 4 dabt due to che Commonwealth and pavable to the Commissioner in rhe Ge Fhe purposes of that manner and at the place prescribed, incom? tax" includes addiricnal rax under 3. 207 tf che Ace, in vhich che sacciens appear, anv treeme cay assessed shall be 4us and pavable by the persen itabis co pas rhe ran cn rine dare specified in the narice as che dare upen which rat 1s due and pavabls, net being less than 29 davs after <ervica of che nenice of, aif no dace is specified. an rhe rhirrisrh dav~ ater mne service of the notices. Sectren L77 af the act is oar eav7identiary provision makina che production of 43 noric=e of assessment conclusive evidence of the due makina sf The assessmenr and, 2xceor in proceedings on appeal againsc the assessment, that the amount and all the particulacs of rhe The Learned primary Tudde commenced his considerartion of ch th mattze o7 Gealing with iv submissicen made cn tenalf «ff rhea resoondent Chan esrocpel did nor Lie rs ore-ent enfaor: i ar a w» f=) statute which was enacted to raise public revenue, His Honour made reference to Maritime Electric Comrany Limited o-7. General Dairies Limited £19371 A.C. 4619, Srate of South Australia vw. ATSA Etv Limited (1930) 23 A.L.R. 247 and the dissenting iudament of Latham (C.J. in The Commissioner of Taxes 'South Austraiia) v, The Execunor Trustee and Agency Tomeany of South Austral (1378) 463 T.U.R, ton. His Honour considered that these authnociries amply supported che proposition relied upon Ev eounsel for the para. &@ of the statement of claim "even had cucn an aqrsement been made" There® was no challence rao shis parr i2 hie Honeuc 3 Judgment on Ris Honour''s refusal ca uphold submissions nade in supoort 27f rhe detence of res widicata. Fes iudicata was the subiect of 2xtensive consideration br the High Court in Foct of Melbourne aurhorify 7. Anshun Erv Limakbad ¢19R1) 147 CLL... 533. There Bikes C.7,.. and Mason and Azckin IJ., in a passade also quoted br "Une distincttin perween ces iudicara cin Endland galled cause at scrLldon esroppel » and issue 2ercppel WAS pesssed br Dinen 7. wn Blatec 7. a3 Lea. det, aro, 22, in "hese ro othe verv right or cause cf ur um su1lr has un the former into ludament, #0 that it is no longer an independent while in the second, for rhe purpose erher claim or cause of acrion, a state 2y Law is alleged or denied che existance 13 A Matter necessacil7 decided by rhe 9. petor judqmenr, decree ic order. The j«distaneriten was cearated be Fuliagar 7. in his dissentine Iudament in Jackson o-. Goldsmirh 1950) 81 CL. , arog. 1446 His Yonour expressed the «1 ra eas tuitcara by saving: where an acti been broughk and iudamenr has been ente un that action, no cthec proceedings can thereafter be maintained on the same cause of action. This cule is not, to mr mind, correctly classified under the heading nf estoppel at all. Tt is a broad rule of pubiic policv based on the principles expceessed in the MAXIms interest reirpublicas 1t 52 finis lLitium' and 'nemo debet bis vexarl oro eadem casa .' His Honour went on to discuss issue estorpel, citing the comment of Dixon J. eat Blair wv. Curran (1939) 62 C.L.R. £ oO. 31: x yadicial a determination directly in soiving Aan issue of fact o¢ of law disposes once for ail of the tssue,. 30 Fhat if cannon afttervards 36 raised between rhe Same parties or their srivies. ~ne olifferencs berween ras icat RONLIN esstepsel: and wssue Zoppe azupressed in similar f@rm3s in chs da - $392 Carl Geiss Srifriung 7. Favner & CLaR7] 1 A.C. 293, ar pe, S17, F464 ar rhe applicaricn of Henderson «Lait. F svideanr from rhe takan olacs Fhat teata, The nila azn ro res widiicata comes inte 'eration whenever 4 party atremprs in a second preceeding ro litigate a cause of action which has merged into tudament in a prior proceeding, Here rhe indemnity cause of action was not litigated in the Ssterales faiseusston wh Khis is not awa Bo fs pceoceéedings. The iudoment in rhat case did rot deal with that Cause cf action, though it evidently proceeded on the assumption that the authority was not entitled to an indemnity". the "imprecision in the meaning of the term cause of acticn". He sale thar wut was sometimes sised ro m=an che faers whic Surport a infeinqed and oo fomerims¢ roo omean rhe osyberanca of an acrian 43 distineft Feem urs ferm, Hie Aerecur went oan rea sar frp Fn - 611) 10. mncertainty in definina the ambit of che rule that A that imprecision in the meanina of cause of action tends to judament bars subsequent proceedings berween the same parcries on the same tause of action. He also ceferred (p. 611) to the judatrent of Dixon Jd. fas he was) un Blatriov. Curran (1979) A2 where 1t is said tp. 532) thar "the very riaht oc cause claimed of put in suit has ... passed into qudoment s2 merged and has no longer an independent existence .,. J. continued (p., ALLli:- ction 15 taken £9 mean a richt, rhe rule is 5 do o.un -eryms of che passing of the eight into widgmanct, and the rule precludes a party bound ov che tudemenc from maintaining against another party bound Ev it anv siubsequenr pcoceedina re recover a tudanent tivind 4a remed7 no enforce or FO compensate for an infringement of that ridahnt. The rule toes not vorecluide Litsqation seexina a remedy to which a carty 15 antifled in virtue of a different richs fcom that which was first pur in sutt provided rhat the Facrs which support rhe ridgnn sued ipen in whe cand action are net the same faccs As those vorting the ridht hich passed into che first : EAus in EBrunsdenic, dmphresy (1924) 14 141 wheres the same acc 2f neaitdaence sed damate to the plaintiff's property and injury to che plainti 53 person in was held char elvhts 7 infringed and chat an oersonal tntury was nar e £ a iudement for aamatge co "Tf cause of t a a vw wD fl A D t i é + a O 1 rr S] c » Co O. m ye oA D a qa he a cer ar nm wee m ry " aon ry TE rause af action ts taken fer mean che facts which Support a ridht to iudament., rne rule 3 re judicata bars an action for relief founded npon the same facts as those upon which an earlier judament was ecovered, thoudh the ridqnt sued upon in the second action us different from the right which rassed into or was necated by rhe earlier iudament". His Honcur then went on to show (sp. 41 ted i.a case where the same facts supported r 1-2) now the princiole rants to differant remedies acainst the same detendanc. That is nota matter relevant to the case in questicn here Against that background, it 15 next convenient to vefer to the approach adopted by the learned primary Judae in reaching the conclusion that the aopellant should fail. The foundation foc his iudament was ch a dictum of Sir James Winram 7.C. in Henderson vy. Henderson ([ 3) a i am uw Hare 100; A7 E.R. 713 where his Lordship said (Hace pp. 114 to 115; E.R. p. 319):- "Tn revina this qiesticn T lieve I mate rhe mile oof che Court coerecrivy wren To sav vmat, where ai cviven matters bLecames che sihisch oat litication in, and of adadicarion by, a Toner cf comperent jurisdiction, che Trt ¢ zye3 Tres earties to chat Lirigavion co brind fecward "here whole case, and WILL not vercept under soecial eureumstances! permit rhea fame pieriss To oren rhe same subvert of linigartin in rasoect if Matter which might have bean dbroudht forward as cart 2f the subyect in conkest, fur which was not brought forward, oniv because they nave, from nealigence, inadvertence or even accident, omitted parc of fheir case. The plea of ras judicata applies, axcesk in special cases, not oniv fo points upon which the Court was actually required by the parties fo form an opinion and pronounce a judgment, but to avery point which properly belonged to rhe subiact of Litivation. and which the parties, exercising reasonadle dalidence, might have brouah: forward at the rime' What his Lordship there said has been frequently referred -o by courts dealing with the croblem: 326, for etample, che earlier the widement cf Gibbs C.J. and Mason = and Aickin JJ. in the Anshun "232 ie 2 be observed chat in two olace mi a a wl tc Go a ple vi) oe6)ww gh if allowance cases which might be special =<pressions primary poses. "The ascertaining ecLircumstances James Wiaram authorities of what constitute and vecial cases' coterced: un Hendecson «. ar 3D special. eircumstances He and that eroblem which rhis used the "excepr in the Learned Tase vy. Powe C1930] Fam. 47. me chat the application the Commissioner has (supra). Rowe it seems to principle fhat Law unless statute 'C Ww. Executor with che do so by australia) accordance authorised ca Taxes (South no power excuse taxpavers from the dutv of pavine taxes axpressli ommissioner Trustee and or a] a5 $30 s eo Aqgensv Co. Waritime Ltd. (Supra) and makes this res aiudicata ws gather nobod: matter fF tit Australia Urd. Lhd. 7, 'sEn Tonstitukes spacia a e#pecial case. nor a 3s the applicatic ' tudhn fo and shar 1vation, tt nevertheless onsi1dsred in relaricn fo the ommissisgner in is so neacly couche to be applied TLECUMStTances as wOULd » Te fLollowe that, cto adapr of Sic Tohn Latham e2arlier he dectrine of ras sersons frem an which imposes duny . of South = Lact rric ' o. oe ral a IL oo (ee 3) ie) rv) re o n oO Db g aa ct ob oosd + mk) 'SO bh cro pa a ray o i] o Fh By H. ct - Pry ct ct Oo % D re i) w@ LO) ny Ps) Cv Ci) a at H. nm iS fT) w a & a c The veterence to what was said by Latham his dissenting judement in The Australia) v. The Executor Trustes (supra) aQ> same doete with cesrec moaned, juadicara obligation toa cf a positive an pair1e iu "ha oT FAV -1G Pa ce o ¥ od L a Ss ecumstances = 2stocpel bur t t o Tan Australia Limited clier ete da. P which hls Honsuc had i) In che submissicn of the appellant. his Honour fell inte error becauseé:- fa) Henderson ov. Henderson (supra) was not a yvelevant authority. The case was not concerned with ces iudicata but with the question whether issues mot calsed in the original proceedings could be raised in che sursequent action, There was. accordindiy, no room ror the application of che principle propounded in HBandersen's case to che doctrine of res Tidicara. 'bd In anv event there fell within che VVC. in Hendercsa it learned peimacy Judas did not amount -c 06$¢ec lal e1iycumstances nor did they make the present case a special WAS2. fay The revenue cases preciuding reliance upon the doctrine of estoppel ov conduct as a defence against a2 tlaim Eva eeveniie authority is not apply un relarten feo c35 Judaica a a. Counsel for the resoondert supported -ha adament tv reliance ray Fapue c oC a H Ww a c197) I 'upon the foil Cad The tidht assertec br the reserndent was a water tf cublic right or duty 9 eollect the cax in full Reference was mad2 to ss. 204, 208 ana 7209 3f rhe Acc. It 14, was said than the tncome tax alvwavs remartned due and pavable with the consequence that the earlier fudament had no effect on the appellant's Liabiltey foe it. (b) A defendant could not ser up res tudicata anv more than he sould set up estoppel in the face of a statute. Reliance was placed, inter alia, son the decision of the Frivy reo, Council in Kok Hoong v7. Leona Cheonce Kweng Mines Limited C1964] A.C. 993. (Ct The lsacned vrimarvy Judgce was. in anv event, correct in Ps eoncluding rhat the case was a special on= 30 chat rhe defence of ves fudicara did not apply. We nurn to cansider rhese submise1isna. Two - ine made by wre appellant and one ov the cespendenr - may be pun onr nf cre war want 3 snbmissicn, taicly oamsickly, Centracy te the appel Henderson 7. Henderson was a case about ces iudicata. Tt was said to be s0 by Lord Wilberforce in Carl Geiss Ftiftung vv, Mason and Aickin JJ. tin the Anshun case (p. 539). That dces not, however, méan that what was said in the case must not be read in Ehe context of the facts upon which the decision is based. More will be said of this 4 little Later. Then, centrary ro the respondent's first submission, the fact that the debts sued for h ace debts due fa Fhe Commonwealth is nor ttself determinarive of iD or h iD Outicmé of the appeal. Tha sections of tne Sct, as. T+, 12 and 209, with which rhe raspondenr seaks fo underpin huis 1s. submission, create the statutory debt which is sowed to the Commonwealth and empower the Commissioner or oa Deouty Commissioner to sue for if. But what needs to be understood is that the ultimate qoal is judeameni.. Except in cerrain special aases, 10 is only when iaudament is obratined that the rescondenr can take steps to compel payment of Ehe amount which ts die, Che sections celied iipon are the source of rnrhe causes of Action which all wy a ct co fhe respondent has, but once those causes of action eras judament the force of the sections is spent. They are reapniaced by a far more valuable rivht, namely, She cidght ccnferred uvon Fne respondent bY the iudament to enforce cayment. Each ef the authorities on res judicata te wnich reference has been made, emphasizes this point. Thus in Blair v. Curran Dazon J. :.as he wasi said that "the vary right cr tause of action claim dcr put in suit has in judgment, so that it is mecqed and has no longer an tundesendent Pxistence (AZ C.L.R. at 0. 532). In Anshun Beennan J. said thar the foundarion of the rule, whether it & D C i emad res widitata, r D cause of action esteppel or iudamenn recoveran. te The nergina of fne cause of action in tne ducamenr (147 C.4.F. arog. fll... Furthermore. ces iudicata 1s ner based on asreppel pacapnrase wnat was said br Fullaqar J. in (81 C,i.R. at p. 466), it 15 a rule of public pelicy based cn the principles thar litigation b fi) fween carties should finish and, Curthermore, that no-one should be pursued more than once for the ye i cr a)ct BP a] q G BEfon om [w) nn cr oy ow oO " pa] un a pu wD ie yw ct B fs) ba] im) ry vt a 1D fis i] ry a bal Nn wD a ball rR iw in 1é. judicata in a aiven case is fa come to conclusions cn whah causes of action are relied upon in the instant case and what causes of action were relied upon in the proceedings which have resultred in the earlier djudament upon which the defence of res iudicata is based. This is the first exercise to be undertaken here. Although there were no pleadings in the earlier proceedings, it is clear from the special undorsement on the writ that the action was brought to recover the balances of the amounts due under the various assessments of income rax and additional rax which w fH) particularised. It ts true that the particulars were prefaced with a claim For $25,557.92. one tanrn cf the corre amount, anc re) a rt that rhe tundorsement conclided with a similar clan. Thus the particulars in the indortemen" were At variance wink what was clatmed. Nevertheless. the aindorsement manifescad 2 clear intenzion ra sue for The balances of the varicur natices iF assessment, The fact that the rotal was anccrréecTly shown was not, in our opinion, to the voint. Nor was 'the circumstance chat, 1f the error had deen drawn to the attention of the Court before judament had been entered, it would have given ieave to amend the iundorsement soa as to correct it. Notwithstandine these matters, the fact vcemains that the action was to recover the palances due on the notices cf assessment. Reference was nor i) made to the relevant sections of the Act, but olainlv the causes of action were statutory in nature and based upon s. 209 rhereoz. 17. in the earlier proceedinas. Put the realities are that preciselv the same causes of action were relied upon in each or the oroceedindgs. Frima facie, therefore, the defence of ras judicata was made out. In most cases where the defence of res judicata has arisen for consideration. the problem has been to denercmine matter or claim or defence not celled upon in the proceedings should be permitted to be raised in the later proceedinads. The Anshun cas# was such a case; 36 was Henderscn vy. Bendersan 'supra) rel1red upon by the learned primary Judge. Other aiunstances of tases in this cateaqorvy ace Hovstead 7. Commissioner of Taxation [19261] A.C. 155, Geeernalan +, Mallard C194749 2 ALL E.R. as and Brisbane City Council wT. Attorney-General for Queensland Cic7T39 2,7, All, In 7he latkarc case Lord Wilberforce referred to the tudament sf Snomervsi. 2.o. in Greenhalgh wv. Maliard -at op. 257) where his Lordshis said that actually asked cto decide: "... Lt covers issues ar facts which are so cleariv part af the subiect-matter af She litigvaticn and so cleariy could have been raised rharc 1t would be an abuse -f the process of the Court to allow a new proceeding to be starred in respect of them". His Lordship want onto reafer to the earlirer cited dictum of Sir James Widgram V.C. in Hendéersen v. ct Pa Henderson 'supra). In e Prishbane Crtv Council case Lord Wilberforce sazd «p., 425) 7 atv this (1.@. what Somervell L.7. had said) was tha true basis of the doctrine which sucht onivy to be ry apolied wnen the facts are such as ro amount +95 an abuse: othervise there ts adanger cf a party beind shut out from 18. bringing forward a genuine subiect of Litigation". Lord Wilberforce had earlier referred to the dictum of Sir James Wigram, V.C. in Henderson's case as the "classic statement of fhis doctrine". A consideration of what Sir James Wicram. V.C. said reveals eurt requires the [13] 0) that the principle which apolies is that th t 1s whol case, anc mh oarties to litiaation "to bring forward cn Pt) ry will mot (except under special circumstances) permit the same parties to open the same subtect of litiaation in respect of matter which might have been brouaht forward as pacr af the subiect 1n contest", Tk was in rhat conrext that nis Lordship used the expression "special circumstances'. The same where his Lordship later 'ised the exprassion qases", & follows that his qualification ta t which excludes its operation in cases where the circumstances area special, can have no relevance to a matter such as this where the causes of acticn in each oreceeding are identical and it is not sought in the latec proceedings to raise a matter cf claim overlooked in the earlier ones. Wnilst, therefore, the submission of counsel for tha respondent that Henderson 5s case was not a case concerning res judicata is, 1s we have earlier said, not correct, the case is. nevertheless, nor heipfal un the resolution of the present problem. That is becaus4 1f i3 a case flealing with the question whether a party, who has omitted some matrer cf claim oc defence, should be permitted to rely upon ir in Later proceedings, Except in special circumstances, he will by nealigence, inadvertence or even accident. Hera the error which is patent on the face of rhe indersement in the earlier proceedings was probably the result of nedliqgence., inadverrence or accident and we are prepared, notwithstanding the absence of error 15 mot an error of omission of a claim: rather if is an arithmetical arror in the calculatior of the correct amount of a claim which was in fact mace. Because the causes of action celisd upon in the 'first procecdings became merged in the judgment which was entered, the pondent nav o4) +) ie) 0) revenue cases celied upon by counsel fcr 'tne ce celevance;: nor have cases which decide that tn some circumstances A paYTY May not sec 'ip an 4stroppel in the face of a sbature Tn Ehis vesoect, counsel placed particular reliance 'imnon rhe decisicn of the Frivy Csuncil wn Fak Koond Leend Cheena K reread Mines Limited C1364 4.0. 99%: see rhe dudemenr if "ieteunt Padcliffe at so. 1014 - 1015. Burt, in cur opinicen, chat case WAS, UPON anmaivsis, a case of 135342 estovpel, not res iidicata, so that 16 has no relevance to the cuestion ta be dererminad The consideraticn of the authorities which we have undertaken has led us to the conclusion that no assistance is to be gained trom them exc mo pt wnsofar as they stave the ysrinciple and show the reason for, and origin of, it. The most convenient statement of fhese matters 1s to be found in the rcassage from the iudament of Fulliacar J, (AL CLLR. at 3, 41645 eited in the Anshun S937). What his Honc.r fai rr) diccios#s thak the doctrine af res indicara 13 founded on a bread 20. cule of public policy based on the principles exvressed in the maxims that it 15 in the public interest that Litigation should finish and that no-one should be twice troubled in relation to the same cause. In our opinion, one has to be careful. when Giving effect to rules of public policy, fhat one does nat construct 'loctrine or vrules which become so intlextble rhat thev ce a court in such a strait jacwer that it loses or surrenders re a B its primary function which 1s ro do jiustice between parties accordina to law. Ir was no doubt thi: considerarion which moved 31r James Wiaram, 7.C. to qualify his srarement of the cule, vhen given the extended arplication it has been founé to nave. ov 2xce2p + #Q ro) 'S a a P- fu be Oo Ww wu 1) 1) tin the present case, what appears tc nave basen an o2bv712u5 mistake has been made. We would have oreferred to have had evidence from the respondent of wnat precisely occurred to bring che mistaxe about. In the absence of thac evidence. one has to a] wvao Ay) GC SO i) ray an wp ia cr (a) w Am fu Bi) ) is) evidence vas tendered =xcept the vecord of the aarlisr proceedinas, There was thus no evidence of erequdice of anv kind to the appellant except. of course, thar, if the cespondent were te recover in the second action. the ig appellant would be worse off to the extent of about £250,666. ¢ But Fhat preiudice has ro be wnderstood in the context that ic oy will oniv arise if he is compelled to pav an amount which, s9 far as the evidence discloses, was due and recoverable in ~he first proceedinas. His only chance of avoiding what, on the face of the evidence appears to be a just claim, is to take advantage of the arithmetical error which was made borders on the re cr This is a Verv unusual case. indeed, absurd. Gne would hope that its circumstance would not be repeated. Pe that as 1b mav, tt t5 our opinion that a princivle Founded on public policy should not be permitted to force a court fo veach a conclusion which not oniv cenfounds another public policy, namely, chat people should, qeneraliv speaking, par their Teprs whethec they are debts due ro governments, 3 "Thar rerzone or fo privakbe underctakiras or cancecns, but which irceli iunv-alvres Qne answer made by counsel for the arpellank to sucn a proposition was that austice could have been done if the respondent had made application to sex aside the fuéamencz. Thac ri) may wel 72 been a Course seen to the rescondenr. But thar dees not «warrant the conclusion that chat was the only rened7 which the respondent nad. Purcthermors, 1f the appeliant nad had a mood answer to such an agplication, based perhars -n matters of fhe kind pleaded in para. 8 of his defence earlier quoned, 17 was open t2 him to lead at least some evidence to that etfeecr in Chese proceedings. In the rbsen a 3B sf anv ocmuth evidercs rh R case becomes ane cf caliance ueon the bare recsora in the earlirec oroceedinas balanced aqgainsr a face of the particulars comprised in the in@orsements on each oF the writs. appears not only ro be correct, tut alsa to be dust. oo t+ he + ie] a ity Hay be wv'my a fay re mm bay iD <3 iD o Te iD is' cr Dp m s wb We emphasize that this i is no evidence of prejudice to the acpellant except pretudice at the kind earlier mentioned which we regard as irre ot che Court in the sense ceferrad to by Somerveali L.J. in wD it Greenhalgh v. Mallard (supra). In our opinion, a balancing of the two earlier menticned public wsolicies requires thac che (Tt esspondent be entitled to sue. For the reasons wa have given, wae dismiss the aoveal with cas ts. lcertfy thas this and the 2/ — prece.'me pages are a true copy of the reason: for judgment herein of the Court 2 4 AON, Assogiale Bated (7 FEBRUARY (727 Tounsel for the appeliant: Mr. F. Costiaan, 9.C. with Mr. F. Dodson Solicitors Toc ~he appellant: Messces. Crowley & Chamberlain oF Tanbperca City, A.C.T. Toungel ter tne cesxcondenr: Mr. A, Poabertsan re] ua) Solicitors fcr the respondent: Australian Government Solicitor of Canberra City, a.c.T. Date of hearina: 5 November 1996 s , Cota roy ' - 1 ' 1 ' ' e . Tee, ais an Moy oF : y* i) ' vo woo hale ery ~ ' tt ' wh » . . ' : 7 ' ' . - "a . : . a . ' - ¥ . . e a SR ; 7. " .