Causes of Action

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The broad principle of res judicata (claim preclusion) means that previous matters already decided cannot be brought up again. It is operated through various forms of estoppel:

  • Cause of action estoppel - a cause of action which has been decided in a judgment cannot be brought up again as long as that judgment stands. It has merged with the rest of the judgment and lost it independence: Chamberlain v Deputy Commissioner of Taxation.
  • Issue estoppel - a legal issue which was determined during a judgment cannot be brought up again either . It has merged with the rest of the judgment and lost it independence: Blair v Curran.
    • Applies to legal issues, not facts.
    • Does not apply in criminal law.
    • Only applies after a final decision by a court with jurisdiction which made a decision on the merits of the case (ie, not one which was dealt with by a summary disposal procedure).
  • Anshun estoppel - prevents a party from bringing claims which should have been pursued in former proceedings. Applies only if (:Port of Melbourne Authority v Anshun Pty Ltd):
    1. Allowing the new proceedings would result in an inconsistency with the old ruling; or
    2. Claim was so relevant that not including it in the earlier proceeding was unreasonable.
      • This ground alone is relevant but not conclusive if parties aren't the same in new proceedings: Redowood v Link Market Services.

This topic is within Resolving Civil Disputes.

Contents

Required Reading

Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters, [6.70]-[6.160].

Introduction

[1] It is preferable to join causes of actions and multiple parties into a single case rather than have a series of successive claims under different causes of action or against different parties. This idea is in line with the overriding purpose.

Linked to this idea are the following principles:

  • Res judicata (Latin for 'a matter already judged') - the principle of claim preclusion, the idea that when a court delivers a final judgment for a cause of action, it cannot be re-litigated. It is similar to the idea of double jeopardy in criminal law.
  • Res judicata is facilitated through a number of mechanisms:
    • Cause of action estoppel.
    • Issue estoppel.
    • Anshun estoppel.

Cause of Action Estoppel

[2] A cause of action estoppel is the main form of res judicata - it is where a cause of action has been decided in a judgment and then cannot be litigated again. The idea is that the cause of action ceases to be independent and is 'merged' into the judgment (which might include other causes of action). The judgment of all the causes of action is treated as one piece and all causes of action are precluded from being litigated again.

  • This idea originated in Chamberlain v Deputy Commissioner of Taxation[3] where the a misplaced decimal point on a writ had resulted in the defendant paying $200,000 less than he owed. The court adjudged the matter as merged with the rest of the judgment, and the principle of cause of action estoppel prevented the plaintiff from bringing the claim again for the rest of the money owed.
  • This idea is also the the underlying principle behind the idea that damages are assessed once and for all in personal injury cases (for example, negligence). Cause of action estoppel prohibits a claimant from bringing another action if his condition worsens.

Issue Estoppel

[4] Issue estoppel is the concept that when legal issues are decided in a trial under one cause of action (ie, even issues which are not the cause of action), those legal issues will be treated as decided already if they are brought up in another claim under a different cause of action. The leading authority is Blair v Curran.[5]

  • In other words, a party is estopped from arguing a legal issue in a new trial for a new cause of action if it was resolved already in a previous trial under a different cause of action.
  • For example, if causation was resolved in a trial for negligence, a party will be estopped from denying causation in a trial for breach of contract etc.
  • Issue estoppel applies to legal issues, not facts.
  • Issue estoppel does not apply in criminal law.
  • Issue estoppel only applies after a final decision by a court with jurisdiction which made a decision on the merits of the case (ie, not one which was dealt with by a summary disposal procedure).
  • Issue estoppel is 'not as absolute as cause of action estoppel - the courts will sometimes refuse to enforce it if it results in an injustice etc.

Anshun Estoppel

[6] Anshun estoppel is an estoppel which prevents a party from bringing claims which should have been pursued in the former proceedings. It arose in Port of Melbourne Authority v Anshun Pty Ltd:[7]

  • Facts: in a previous case, a dock worker injured by a crane sued the authority and Anshun. The court awarded him damages, apportioning the damages mostly to the authority. The authority then brought a new claim against Anshun to recover damages, based on an indemnity clause it had in their contract.
  • Held: A party will be estopped from bringing forward a matter in a new claim which was so relevant in the previous claim that it was unreasonable not to bring it up (constitutes an abuse of process). It was unreasonable for the authority not to bring up the indemnity clause in the previous case, because it was really relevant. Another reason is that enforcing the indemnity clause and awarding damages to the authority would be inconsistent with the previous ruling (the apportioning of liability).
    • Note: since the indemnity clause was not brought up at all in the first case, a cause of action estoppel or issue estoppel could not be used, and therefore the new estoppel was created.

Anshun estoppels were also discussed in Gibbs v Kinna:[8]

  • Facts: the respondent received compensation from the appellant under the Industrial Relations Commission based on wrongful termination. He then sought to sue the appellant again under breach of contract and violation Trade Practices laws etc. The appellant argued that he estopped from doing so by the Anshun principle, since those causes of actions should have been raised in the previous claim.
  • Held: before deciding whether it was unreasonable, two factors must be established for an Anshun estoppel:
    1. The cause of action must be one that could have been raised in the previous proceeding; and
    2. It must appear that the same or substantially the same facts will arise for consideration in the second as in the first proceeding.
    • In deciding unreasonableness, one thing to consider is whether the new claim would conflict with the old.
      • In this case, the two first requirements were made out in this case, but unreasonableness was not - the previous case was done under a statutory scheme, and although the judge allowed an amendment of the claim, it was not clear that non-statutory issues were permitted. Also, it would have required an adjournment etc, which would have prevented the quick resolution under the statutory scheme.
    • An Anshun estoppel is a way for the court to encourage parties to join and resolve all the issues in one case, and also ensure that there are no conflicting judgments. It can be seen as in line with the overriding purpose in that they seek to have a quick and final resolution of all matters for a given set of events.

And also in Rippon v Chilcotin[9]

  • Facts: the plaintiffs sued their vendors for breach of contract and misrepresentation (based on reports), but failed for misrepresentation. They then sued their accountants for misrepresentation in a new case. The accountants claimed Anshun estoppel.
  • Held: estopped because the plaintiffs were attempting to relitigate issues that lost in the previous case (although against different defendants) (this is an abuse of process). Also, the claim against the accountants was so relevant to the subject matter of the first action that it was unreasonable for the purchasers not to pursue it then.

And also in Redowood v Link Market Services:[10]

  • Facts: the plaintiff brought a claim against a third-party (Mongoose) and originally, the defendant was involved in a cross-claim. The proceedings against the defendant were stayed until the result of the first matter, in which the plaintiffs failed. Afterwards, the plaintiffs sought to sue the defendant. The defendant sought Anshun estoppel.
  • Held: in cases where the earlier and later proceedings are against the same party, a finding of unreasonableness (in not bringing the claim earlier) almost always means Anshun estoppel; However, when the parties in the different cases are different, unreasonableness is only a relevant consideration and not conclusive. This is because there are times when joining another party and another cause of action is actually not beneficial and would over-complicate the case.
    • In this case, the defendant was not in the original proceedings - it wasn't really involved in any way because of the stay in the proceedings. The circumstances were such that was not really unreasonable not to bring claims against the defendant in the first case.
    • Also, the plaintiff is not seeking anything which is inconsistent with the original decision (the other ground on which the proceedings can constitute an abuse of process). Consequently, there is no Anshun estoppel.

And finally in Champerslife v Manojlovski:[11]

  • The idea is not whether the claim could have been brought up in the earlier proceedings, but whether it was so relevant that not including it was unreasonable.

All in all, Anshun estoppel rests on two principals - (1) whether not including the claim in the earlier proceeding was unreasonable or (2) allowing the new proceedings would result in an inconsistency.

End

This is the end of this topic. Click here to go back to the main subject page for Resolving Civil Disputes.

References

BKL refers to Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters.

FDR refers to Michael Legg (ed), The Future of Dispute Resolution (2013) LexisNexis.

  1. BKL, p. 337-8.
  2. Handley, "Res Judicata: General Principles and Recent Developments" (1999) 18 Aust Bar Rev 214.
  3. (1988) 164 CLR 502.
  4. Handley, "Res Judicata: General Principles and Recent Developments" (1999) 18 Aust Bar Rev 214.
  5. (1939) 62 CLR 464.
  6. Handley, "Res Judicata: General Principles and Recent Developments" (1999) 18 Aust Bar Rev 214.
  7. (1981) 147 CLR 589.
  8. [1999] 2 VR 19.
  9. [2001] NSWCA 142.
  10. [2007] NSWCA 286.
  11. [2010] NSWCA 33.
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