Port of Melbourne Authority v Anshun Pty Ltd

147 CLR 589
36 ALR 3

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(Judgment by: Murphy J.) Court:

Judges: Gibbs C.J., Mason J., and Aickin J.

Murphy J.Brennan J.

Judgment date: 1 September 1981

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Judgment by:
Murphy J.

I prefer not to attempt to formulate an exhaustive theory of res judicata or issue estoppel in order to determine this case by application of such theory. These notions of res judicata and issue estoppel are founded on the necessity, if there is to be an orderly administration of justice, of avoiding re-agitation of issues, and of preventing the raising of issues which could have been and should have been decided in earlier litigation. (at p605)

2. In this instance, the issue now sought to be raised was plainly open to be agitated in the previous litigation. The judgment in that case is inconsistent with the judgment now sought by the plaintiff. To preserve the orderly administration of justice the earlier judgment should be treated as conclusive on the question of indemnity. There is no discretion to allow the raising of that issue against the unwilling defendant; the attempt to do so is properly characterized as an abuse of process. The appeal should be dismissed. (at p605)