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.

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Dawson J.

I do not understand Wigram V.C. to have held in
Henderson v. Henderson (1843) 3 Hare 100 ; 67 E.R. 313 , that there is a discretion to deny the application of the doctrine of res judicata in special circumstances. A discretion could only arise where the doctrine in its strict sense does not apply but the principle is extended to cover matters which were not raised but could and should have been raised in an earlier action in which judgment is entered. Any discretion arises from the extension of principle. It forms no part of the doctrine of res judicata itself. It could not. Once a cause of action has merged in a judgment it no longer exists to found another action. The majority discussion of Henderson v. Henderson in
Port of Melbourne Authority v. Anshun Pty. Ltd. (1981) 147 C.L.R. 589 was upon the basis (see p. 597) that the latter case was not one of res judicata ; there was a cause of action remaining. The question was whether the plaintiff ought to have been allowed to pursue that cause of action having regard to the fact that the right asserted could and should have been raised in the earlier action in which judgment had been entered. To have allowed it to do so may have resulted in contradictory judgments which ought not be permitted save in special circumstances.

This is plainly a case of res judicata as Deane, Toohey and Gaudron JJ. demonstrate. That being so, the appeal must be allowed.

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.