Chamberlain v. Deputy Federal Commissioner of Taxation

Judges:
Brennan J
Deane J
Dawson J
Toohey J
Gaudron J

Court:
Full High Court

Judgment date: Judgment handed down 12 May 1988.

---

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 (1843) 3 Hare 100 at p. 115; 67 E.R. 313 at p. 319 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. (1981) 147 C.L.R. 589 at pp. 613-614 , 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.

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.