Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21

High Court of Australia Brennan, Deane, Dawson, Toohey and Gaudron JJ. Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21

ORDER Appeal allowed with costs. Set aside the judgment of the Federal Court of Australia dated 17 February 1987 and in lieu thereof:

1. allow the appeal to that Court with costs;

2. set aside the judgment of Kelly J. in the Supreme Court of the Australian Capital Territory dated 18 June 1986 and in lieu thereof order that there be judgment for the defendant with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1988, May 12 Brennan J.

I agree generally with the judgment of Deane, Toohey and Gaudron JJ., subject to the following observation. A phrase used by Wigram V.C. in Henderson v. Henderson [15] may be understood as meaning that in "special circumstances" the doctrine of res judicata does not or may not apply. For reasons which I gave in Port of Melbourne Authority v. Anshun Pty. Ltd. [18] , Wigram V.C. was not, in my view, advancing any exception to the doctrine but was referring to the equity practice of that time which allowed for the impeaching of the first judgment in special circumstances. As the doctrine of res judicata does not admit of any exception so long as the first judgment stands, I do not find it necessary to consider the "special circumstances" exception addressed in the joint judgment.

1. (1843) 3 Hare, at p. 115 [67 E.R., at p. 319]. 2. (1981) 147 C.L.R. 589, at pp. 613-614.

The Commissioner chooses not to impeach the first judgment for mistake; he chooses not to attack for mistake any agreement which led to the entry of the first judgment by consent. The first judgment stands. As the joint judgment demonstrates, the Commissioner's second action is founded on the same cause of action. The doctrine of res judicata applies and that action must be dismissed. I too would allow the appeal.