CONSIDERATION
82 It is convenient to say a little more, at this stage, about the course the appeal took. Senior counsel for the WGTO developed an argument that the principle of issue estoppel had no role in applications for native title determination. On the other hand counsel for the State and senior counsel for the KM claim group, amongst others, submitted it did and that McKerracher J had correctly concluded it had been engaged in the present proceedings. At one point senior counsel for the KM claim group submitted the estoppel operated in favour of that group even though they had not been respondents to the NY consolidated proceedings.
83 It was apparently on the basis of exchanges between the Court and counsel on that issue during the course of the submissions made on behalf of the KM claim group that an argument appeared to be advanced that the proceedings could have been dismissed by McKerracher J for reasons founded not on issue estoppel but rather abuse of process. It was not disputed that the basis for the summary dismissal application as it had ultimately been developed before McKerracher J had not included a ground based on an abuse of process.
84 Towards the conclusion of the hearing of the appeal, this Court raised with the parties the question of whether the argument apparently put by senior counsel for the KM claim group involving an abuse of process was an argument to be relied upon in the appeal notwithstanding that it was neither an argument advanced before McKerracher J nor relied on by his Honour. In the result, as earlier noted, we gave the KM claim group leave to file a notice of contention and submissions in support and the opportunity for other parties to file responsive or opposing submissions. We intended that these submissions would address the question of whether it was appropriate, in the circumstances, to allow the KM claim group to file the notice of contention and thus advance an argument in the appeal that was not put below based on a ground not relied upon by the State as the moving party before McKerracher J.
85 It is necessary to resolve the threshold question of whether the parties supporting the order made by McKerracher J can do so by reference to a ground raised only in a notice of contention and not advanced before his Honour. Understandably, the WGTO resist this course being followed. Importantly, however, they have not submitted that, had the application for summary dismissal been advanced before McKerracher J on the ground now sought to be relied upon, different or additional evidence would have been led though they noted that his Honour "did not properly consider the new affidavits relied on by the appellants". We return to this latter question shortly. Observations by the High Court in Park v Brothers [2005] HCA 73 suggest that it is appropriate to determine whether a notice of contention ought to be allowed in an appeal raising a ground not argued below in the same way a court determines whether a ground of appeal can be argued although not advanced below. The Court observed at [34]:
This was not a case in which there were formal pleadings. Nevertheless, the issues at trial were formulated by Points of Claim and particulars, understood in the light of affidavit evidence to which they referred, and by the conduct of the proceedings on behalf of the parties by their legal representatives. As was pointed out in Whisprun Pty Ltd v Dixon, even when there are pleadings, to determine whether a party is raising a new point on appeal the actual conduct of the proceedings must be considered. In adversarial litigation, as a general rule, a party is bound by the conduct of his case. There are circumstances in which the interests of justice may lead an appellate court to permit a party to raise a point that was not taken at trial, but where the point is one that could have been met by calling evidence below then it cannot be raised for the first time on appeal. (References omitted)
86 In our opinion, the KM claim group should be given leave to file and rely on the notice of contention and, to the extent necessary, time is extended for that purpose. It raises a point of substance and no prejudice is occasioned to the WGTO if the point is now argued. The only possible prejudice would be if we were to take the approach of McKerracher J in relation to the further affidavits the WGTO seek to rely on. However given that the appeal now raises not only the issue estoppel argument but a ground based on abuse of process, it is appropriate to have regard to these further affidavits. Their contents are discussed later in these reasons.
87 Accordingly the appeal raises, potentially, two issues. The first was whether the application should have been dismissed summarily because WGTO was estopped from arguing that the claim group was a cognatic kin group and the application was thus doomed to fail. The second was whether for substantially similar reasons, the application should have been dismissed as an abuse of process. We note, at this point, that McKerracher J made three orders (as set out earlier). The first was that the State's notice of motion for summary dismissal be allowed. The precise legal effect of this order is perhaps a little obscure, but what his Honour intended was made clear by the second order which was that the WGTO application be dismissed. The third order concerns costs. The order with an operative legal effect against which this appeal is brought is that the WGTO application be dismissed. Accordingly, this Court is being invited to set aside that order by resolving both issues in favour of the WGTO on the one hand or uphold the order by resolving one or both issues in favour of the respondents on the other.
88 We have decided that the WGTO application constitutes an abuse of process and McKerracher J was correct in making the order he did dismissing the WGTO application. While we entertain real doubt that issue estoppel has any field of operation in applications for native title determination, it is unnecessary to resolve that legal question. We shortly explain why we doubt that issue estoppel has any application in proceedings of the present type.
89 However we should first say something about the judgment of the Full Court in Quall FC which McKerracher J relied on, as have the respondents in this appeal. In that appeal, no suggestion was made that issue estoppel had no application in relation to native title cases. The appeal proceeded on the assumption that it did. The applicability of the principle was not in issue. Indeed it is faintly apparent from the reasons of the Full Court at [37] that a question might arise about the applicability of the principle given that the parties in whose favour the principle was said to operate had not all been parties to the earlier proceedings in which the issue founding the estoppel had been decided: see Risk v Northern Territory of Australia [2006] FCA 404. The Full Court there observed:
At this point we note that at para 17 of the respondent's written submissions it is stated that "there was one party to the remainder of the application the subject of this appeal who was not a party in Risk". At the hearing of the appeal no mention was made of this party and no point was made in relation to the party.
90 Our significant reservations about the applicability of issue estoppel to native title claims rest on the statutory framework which establishes the procedures for hearing such application and the character of any determination itself if ultimately made. When considering in proceedings whether an issue estoppel might arise, any statute underpinning the proceedings can be important.
91 As Gummow J observed in Re Pollard; Ex parte Lensing Management Co Pty Limited (1991) 33 FCR 284, a matter arising under the Bankruptcy Act 1966 (Cth):
The term "estoppel" has been described as a label which covers a complex array of rules spanning various categories: The Commonwealth of Australia v Verwayen (supra) per Mason CJ at 409. But what the various species of estoppel have in common is that they are the creatures of the common law or equity (or both) and as such must operate consistently with the terms of any statute which has an impact upon the controversy in the course of which reliance is placed upon an estoppel; Walsh v Commercial Travellers' Association of Victoria (1940) VLR 259 at 268-269, G Spencer Bower and AK Turner, pp 139-142. Accordingly, it is necessary in the present case to look more closely at the statutory setting which both creates and controls the "matter" in relation to which the creditor takes the estoppel point.
92 Under the NT Act any application made under s 61 might be the subject of an order under s 67(2), (as set out earlier), with the result that part of that application together with other applications (or parts of them) concerning the same area are dealt with together. Experience tells us that this is common, as occurred in the present case. The effect of an order under s 67(2) will typically be to create separate proceedings concerning a particular area with respondents which are only a subset of the respondents to the initial application or applications on which the order operates. Any determination made concerning the area will bind the world at large. It is, in effect, a judgment in rem: see Wik Peoples v Queensland (1994) 49 FCR 1. The determination will bind persons beyond parties to the proceedings. Because of the special characteristics of a judgment in rem, it operates outside the usual field of operation of the principle of issue estoppel requiring, as the latter does for its engagement, that the same parties (or their privies) were parties in the proceedings in which the issue was earlier determined. That is, a judgment in rem involves the determination of the status of the person or thing and binds the world at large and not simply the parties to the litigation: Re Lawrence: Ex parte Burns (1985) 9 FCR 9 and Wall v the King; Ex parte King Won (No 1) (1927) 39 CLR 245 at 291 per Isaacs J.
93 Even accepting, as McKerracher J noted, that the principle can operate in relation to some but not all parties to a proceeding, it is difficult to see how it can operate in that way in relation to proceedings under the NT Act. Assume, as contended in these proceedings, that an issue was resolved in earlier litigation between the State and the WGTO raising an issue estoppel between those parties but which had not been resolved as against other parties such as the KM claim group. It is not as if the State can then, on the strength of that estoppel, obtain judgment in its favour while leaving other parties who are not the beneficiary of the estoppel to contest the issue. The capacity of a party in ordinary litigation to obtain judgment in its favour leaving unaffected the resolution of rights between other parties to the same litigation underpins the proposition mentioned to by McKerracher J referring to Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 that an issue estoppel can operate to the benefit of some though not all parties to particular litigation. That cannot happen, as we see it, in proceedings under the NT Act. That is, as earlier discussed, because the ultimate judgment (the determination) does not operate against named parties. It is not possible to give judgment in this context against a party relying on the estoppel and not against another party who cannot rely on the estoppel and fails on the issue on which the estoppel could have otherwise operated.
94 Before explaining why we have concluded that the prosecution of the remainder of the WGTO claim is an abuse of process, it is necessary to refer to the additional affidavit evidence relied on by WGTO. The additional affidavit material which McKerracher J was asked to consider falls into two categories. The first category is material aimed to show that there is a genealogical link between the Hicks and Ramirez families, and the second category is material aimed to show that Tim Douglas practices the traditional law and custom of the area. Both categories of evidence were directed to demonstrating that the findings of the trial judge in Daniel were factually wrong, even if justified on the evidence produced to him.
95 Four affidavits were filed on the issue of the genealogical link, namely affidavits sworn by Rory O'Connor, Vincent Lockyer, Betty Dale, and Phyllis Ramirez. Mr O'Connor is the anthropologist who prepared a report for the WGTO which was tendered in Daniel. The report advanced the case of a genealogical link between the Hicks and Ramirez families constituted by the fact that Charlotte Lockyer, who married Jack Hicks, was the sister of Nyungurtu whose descendants included the Ramirez family. The trial judge did not accept that this link had been made out.
96 Mr O'Connor has prepared a further report which is exhibited to his affidavit. In the introduction to his further report he explains that he was briefed by solicitors for the WGTO to conduct further research into the relationship between the Hicks and Ramirez families in view of the rejection by the trial judge in Daniel of that link.
97 The report concludes that there is a genealogical link between the Hicks and Ramirez families. It is now said, not that Charlotte Lockyer was the sister of Nyungurtu, but rather that Charlotte's mother, Nibbin who was also called Miggibung or Niggibung, was the sister of Nyungurtu. The evidence before the Court on which Mr O'Connor relies is contained in three other affidavits and a genealogy exhibited to his affidavit.
98 In his affidavit, Vincent Lockyer explains that he has collected the history of his branch of the Lockyer family through library research and discussions with members of his father's generation. Mr Lockyer is the great-great-grandson of George Brookes Lockyer who was born in 1846. He came to Roebourne in 1865 and later set up Cooya Pooya Station. Mr Lockyer explains that the genealogy sheet held by him indicates that George Brookes Lockyer died in Roebourne in 1893 and was unmarried. The Battye Library records confirm these facts. George Brookes Lockyer had two Aboriginal women partners - Mabel and Nibbin. Mr Lockyer sets out in his affidavit the offspring from each of the unions of George Brookes Lockyer with Mabel and with Nibbin. His affidavit concludes with the statement that "Miggibung had a sister whose name was Nyungurtu." He also said that Nyungurtu had a daughter called Karipang and Karipang married Walter Frances and was known as Carrie Francis. Mr Lockyer does not refer to any reason why he did not give evidence in Daniel.
99 Phyllis Ramirez tells in her affidavit that she was born in 1938. Her mother was Elsie Francis who married Arthur Ramirez. Elsie Francis was the daughter of Karipang and was born in 1906. Mrs Ramirez has a brother, Ernie, and the family lived in Roebourne. Mrs Ramirez tells that she spent a lot of time with her grandmother Karipang. Karipang was a tribal woman who followed traditional laws and customs very strictly. As a result she would not say the name of the dead. She did not tell Mrs Ramirez the name of her mother, but Mrs Ramirez heard from others that the name was Nyungurtu. Mrs Ramirez states:
Grandmother Karipang did tell me on a number of occasions that we were related to the Hicks family through the wife of Jack Hicks, Charlotte Lockyer. She did not tell me the name of Charlotte's mother, as that would also have been calling a dead person's name.
100 Again, Mrs Ramirez does not explain why she did not give this evidence in the trial in Daniel. The only witness who did give evidence before the trial judge on the issue was her brother, Ernie Ramirez.
101 Betty Dale says in her affidavit that she was about 75 when she swore her affidavit in 2009. She grew up around Roebourne. She explains how she knew and met Charlotte Lockyer as follows:
I knew Winningbung, who was also called Charlotte Lockyer. I was a young woman with children of my own when she died. She was married to Jack Hicks who lived with her and their children on Karratha Station. She was a tribal woman who followed our law and culture. Jack Hicks had a son named Fred, who was married to my mother, Molly Thomas. I had two mothers, Molly Thomas and Alice. In my law and culture, which is very different to the white person's law and culture, a woman calls all of her daughters koondal and they all call one another maari. All maari call the koondals of their grandmother nganga. That is, I had two nganga, Molly Thomas and Alice. I walked from Andover on the Harding River near Roebourne, where I lived to visit my mother Molly in Karratha Station on many occasions and talked often to her and to her mother-in-law Winningbung. Winningbung told me her mother was Miggibung, who was born before white people came to our country.
102 Mrs Dale also explains that she knew Karipang who lived in Roebourne. She visited Karipang on many occasions. Karipang would not say her mother's name but Mrs Dale heard from others that Karipang's mother was called Nyungurtu. Mrs Dale concludes as follows:
Winningbung and Karipang told me that their mothers settled on Cooya Pooya Station and that that is how they come to be known as Cooya Pooya people. They told me that they were maari, or sisters. Both of their mothers called them koondal, or daughter. That is because their family settled on Cooya Pooya Station and their two nganga or mothers were sisters, or maari. This is the way it is in our law and culture: if there are two sisters, all of their children are shared between them and they call them all sons and daughters. That is why Karipang and Winningbung called one another sisters. I understand that in white man's law and culture Karipang and Winningbung would be called cousins, but to us they were sisters.
103 Mrs Dale gave evidence in Daniel but did not give evidence about the genealogical link between the Hicks and Ramirez families.
104 Two aspects of the affidavit of Mr O'Connor should be referred to. First, Mr O'Connor exhibits to his affidavit a genealogy of the Lockyer family prepared by Jim De Turt in 1999-2000. Mr De Turt's father married Gladys, the daughter of Elsie and Arthur Ramirez. Elsie was the daughter of Karipang. Mr O'Connor traced Mr De Turt to the United States and phoned him in April 2009. Mr O'Connor states that Mr De Turt:
…confirmed that Karipang was related to Charlotte Lockyer through Charlotte's mother Nibbin/Miggibung. He stated that he had previously believed from the oral history records that Karipang was a sister to Nibbin/Miggibung, but had subsequently realised, as a result of further analysis of this data, and dates of birth, that it was in fact Karipang's mother, Nyungurtu who was Nibbin/Miggibung's sister.
Mr O'Connor appears to rely on this conversation to demonstrate that Nyungurtu and Miggibung were sisters. The written genealogy does not show this. It sets out the descendants of George Brookes Lockyer's union with Nibbin including Charlotte but it says nothing about any relationship between Nibbin and Nyungurtu.
105 Second, in an oblique explanation for the additional genealogical material, Mr O'Connor states the following in the introduction to his report used to support the present case:
As background, it is here noted that an Anthropological Report on the Wong-Goo-Tt-Oo Application for Determination of Native Title was prepared by R O'Connor in March 2000. That report was prepared under inadequate time and resources constraints. The Expert Witness Declaration fronting the report read as follows. As noted in the Preface to my report, the Wong-Goo-Tt-Oo native title applicants have been denied funding by the Aboriginal Affairs authorities. Accordingly, my research was not in any sense adequately funded. I was able only to devote six weeks to this work: two weeks in the field; two weeks reading and assembling information; and two weeks preparing Volume One of this report. It would be therefore simply ludicrous to suggest that I have made all investigations and inquiries possible in regard to this research. The following declaration is therefore submitted against this background.
106 The other matter addressed by the affidavits concerned Tim Douglas and the practice of traditional law and custom. Four affidavits are relied on in respect of this matter.
107 Tim Douglas deposes that he is senior Law man at the Woodbrook Bidara Law ground outside Roebourne. He says that he, with other elders, determines when the Law ground is to be opened and who is to go through Bidara Law there. Mr Douglas explains that he is recognised by the senior law men at the Warralong Law ground near Port Hedland. They are called the Warrarn group and the senior Law men are Monty Hale and Bruce Thomas. They, with other elders, decide when the Warralong Law ground can be used. Only they can say when it is time for the Law to take place. Monty Hale carried out the same duties in Warralong as Mr Douglas carries out in Woodbrook. But he has now passed on this role to younger men. Mr Douglas attended ceremonies at Warralong and was recognised as a senior Law man in the region. All the Aboriginal communities in the Pilbara accept these laws and customs concerning the Law grounds.
108 Monty Hale and Bruce Thomas both swore affidavits in nearly identical form. They confirm that they were senior Law men for the Warralong Law ground and that Tim Douglas is the senior Law man for the Woodbrook Law ground. They also tell that the Law grounds cannot be used without the decision of the senior Law men. They explain that Tim Douglas has been welcomed at their ceremonies and they have been welcomed at his. They do not explain why they did not give evidence before the trial judge in Daniel.
109 Arthur Flatfoot deposed to his responsibility to see that his late brother's son went through the Law. He wanted him to go through Bidara Law. The Law ground at Cane River had fallen into disuse and it was necessary for the senior Law man of the region to reopen it before the ceremony could take place there. Tim Douglas is the senior Law man in charge of Bidara Law at Woodbrook Law ground. No ceremony can occur there unless he opens the Laws ground and says which boys are to go through the Law. As there were no other functioning Bidara Law grounds in coastal Pilbara, Tim Douglas is the senior Bidara Law man. Mr Flatfoot asked him, in that capacity to open the Cane River Law ground to enable the ceremony for the boy to go through the Law there. Mr Flatfoot did not give evidence before the trial judge in Daniel and does not refer to any reason why he did not do so.
110 What can be seen in this review of the further affidavits together with our earlier discussion of the evidence before the trial judge in Daniel is that the earlier evidence concerning whether the WGTO claim group was a cognatic kin group was not focused only on the circumstances of the WGTO claim group in the NY consolidated claim area considered by his Honour. Rather, it was evidence that apparently applied to establishing (but unsuccessfully so) the existence of the WGTO claim group as a cognative kin group who held at settlement and have continued to hold native title rights and interests generally in the broader area which was the WGTO claim area, including that part which became part of the NY consolidated claim area. It was not evidence confined only to that part of the wider WGTO claim area which had been consolidated into the NY consolidated claim area. The further affidavits do not seek to demonstrate that a different position obtains because of facts arising outside the NY consolidated claim area in the remainder of the WGTO claim area. The additional affidavits, rather than drawing any distinction about the current or historical status of the WGTO claim group between the NY consolidated claim area and the present WGTO claim area, treat the whole of those two areas (previously the wider WGTO claim area) in the same way. There is no explanation why the additional affidavit evidence was not adduced before the trial judge in Daniel. To a large extent, the additional affidavits are really little more than a repetition of what was said in evidence in Daniel although now perhaps with a little more detail.
111 It is our view that, in substance, the WGTO essentially seek to have the same issue as determined in Daniel determined differently in the present WGTO claim. Its attempts to do so constituted, in our opinion, an abuse of process.
112 The reach of the power to dismiss proceedings as an abuse of process in the interaction of that power with principles such as res judicata, issue estoppel and Anshun estoppel was helpfully discussed by French J in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [59] and following. It is a lengthy passage but warrants revisiting in full:
59 The Federal Court, like every Court of Justice, has an implied incidental power to prevent abuse of its processes. There are many ways in which the processes of a court may be abused. One form of such abuse is to invoke the procedures of the court to attempt to relitigate controversies which have already been decided by the court. The court may be protected against such use of its procedures by the doctrines of res judicata and issue estoppel and their analogical extension to issues which ought reasonably to have been litigated in original proceedings as enunciated in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 and Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
60 The protection afforded the administration of justice by the general concept of abuse of process in this context subsumes that afforded by the specific doctrines of res judicata, issue estoppel and their Anshun extension. In Reichel v Magrath [1889] 14 App Cas 665 a vicar who had resigned from his benefice and failed in proceedings for a declaration that his resignation was void and that he was still in office. His successor brought proceedings for a declaration that he was vicar and claimed associated injunctive relief. The former vicar sought to defend the proceedings on the basis that he retained the benefice. His defence was struck out. The decision to strike it out was upheld in the Court of Appeal and in the House of Lords where Lord Halsbury said (at 668):
'My Lords, I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.'
And further:
'I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure and I therefore think that this appeal must likewise be dismissed.'
The other Law Lords agreed.
61 Reichel v Magrath was decided upon abuse of process grounds. It was not based upon any finding of res judicata or issue estoppel although as observed in Spencer, Bower and Turner, 'Res Judicata', 3rd Edition (Butterworths 1996) at 444:
'It would appear that the issue was res judicata, because the earlier decision was in rem, and the plaintiff was a privy of the successful parties, but this has not affected the vitality of the principle applied by the House.'
Commenting upon an argument that Reichel v Magrath could have been decided upon res judicata grounds on the basis that the first decision was in rem, Handley JA said in Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 (at 202):
'... the availability of a narrow ground for decision does not displace the actual ratio if the court decides the case on a wider basis.'
And as his Honour noted, Reichel v Magrath has been followed in Walton v Gardiner (1993) 177 CLR 378 (at 393) and Rogers v R (1994) 181 CLR 251 (at 287-288).
62 The breadth of abuse of process protection against attempted relitigation was considered in Walton v Gardiner per Mason CJ, Deane and Dawson JJ (at 393):
'... proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.'
Their Honours cited Reichel v Magrath and Connelly v Director of Public Prosecutions [1964] AC 1254 at 1361-1362. They also adopted and approved the description of the relevant jurisdiction of superior courts given by Lord Diplock in Hunter v Chief Constable of the West Midland Police [1982] AC 529 (at 536):
'... the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.'
The category of 'right-thinking people' is elusive. However the passage may be taken as emphasising that the task of the judge in such a case is evaluative.
63 In Rogers v R, a majority of the High Court, comprising Mason CJ, Deane and Gaudron JJ, held that the tender of records of interview at a criminal trial which records had been rejected as involuntary at another trial on other charges, would be an abuse of process. Mason CJ said (at 255):
'The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party's genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories. Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process.'
64 The doctrines of res judicata and issue estoppel can be regarded as serving a public policy which protects against abuse of process by supporting the finality of judicial dispositions of particular controversies. Those doctrines establish the most precisely defined circumstances in which relitigation will be identified and barred. Anshun introduced an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings. In that case, which involved an attempt to litigant as a plaintiff, a matter which could have been raised in the defence in earlier proceedings, the majority, Gibbs CJ, Mason and Aicken JJ, said (at 602):
'In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.'
65 The application of that principle requires the evaluative judgment whether it would have been 'reasonable' to have raised in the first proceedings the matter now raised in the second. That represents a development of the principle expressed by Wigram VC in Henderson v Henderson (at 319):
'..., in litigation, requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.'
As the Full Federal Court said in Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 (at 295), the principle is allied to, but not co-extensive with, res judicata and issue estoppel. The Court applied the approach of the New South Wales Court of Appeal in Rahme v Commonwealth Bank of Australia (unreported, Court of Appeal, NSW, 20 December 1991) that the effect of Anshun is to apply the Henderson principle to a second proceeding where 'it was unreasonable for the party asserting the cause of action in that second proceeding to refrain from raising it in the earlier proceeding against the same opponent party'. The unreasonableness criterion was also applied in Ling v The Commonwealth (1996) 68 FCR 180 at 195 (Sundberg J, Wilcox and Whitlam JJ agreeing).
66 The doctrines of res judicata, issue estoppel and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted relitigation of a dispute already judicially determined. As another Full Court said in Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 (at 443):
'An attempt to litigate in the Court a dispute or issue which has been resolved in earlier litigation in another court or tribunal may constitute an abuse of process even though the earlier proceeding did not give rise to a res judicata or issue estoppel: see Sea Culture International v Scoles (1991) 32 FCR 275 at 279 and Walton v Gardiner (1993) 177 CLR 378 at 393-394. Whether it does depends on the facts of the particular case.'
67 The considerations of public policy which underlie res judicata and issue estoppel help to define the scope of abuse of process by relitigation generally. As Lord Hoffman said in Arthur JS Hall & Co v Simons [2000] 3 WLR 543 at 572, the underlying policies are that a defendant should not be troubled twice for the same reason and that there is 'a general public interest in the same issue not being litigated over again'. Lord Hoffman observed that the second rationale could be used to justify the extension of the rules of issue estoppel to cases in which the parties are not the same but the circumstances are such as to bring the parties within the spirit of the rule. In that regard he referred to Reichel v Magrath and Hunter v Chief Constable of the West Midland Police.
68 In Johnson v Gore Wood & Co [2002] 2 AC 1 (at 31), Lord Bingham referred to what he called 'Henderson v Henderson abuse of process' as separate and distinct from cause of action estoppel and issue estoppel although having much in common with them:
'The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.'
The judgment required in such cases was described by Lord Bingham as (at 31):
'... a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.'
The other Law Lords agreed with Lord Bingham on the abuse of process question.
69 The public interest considerations underlying the power of courts to stay or dismiss the proceedings for abuse of process extend to preventing the waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. They include the necessity of maintaining confidence in, and respect for, the authority of the courts - Sea Culture International v Scoles (1991) 32 FCR 275 (at 279 French J); Djaigween v Douglas (1994) 48 FCR 535 (at 545 Carr J).
70 The power to strike out a statement of claim or to dismiss an application as an abuse of process is to be exercised sparingly and upon an examination of the relevant circumstances of the particular case before the Court. As Giles CJ said in State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (at 64, 089):
'... whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate a issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice...'
His Honour set out a non-exhaustive list of matters relevant to the determination whether there was an abuse of process in connection with the issue to be litigated in the second proceedings. These factors were:
'(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;
(b) the opportunity available and taken to fully litigate the issue;
(c) the terms and finality of the finding as to the issue;
(d) the identity between the relevant issues in the two proceedings;
(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of -
(f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.'
These considerations offer a non-exhaustive guide and an indication of the nature of the Court's task in such cases.
113 We do not understand more recent decisions of the High Court concerning an abuse of process to derogate from the force of this discussion: see Batistatos v Roads and Traffic Authority of New South Wales 226 CLR 256 and PNJ v R (2010) 252 ALR 612.
114 Litigation of native title disputes or issues is very often a time-consuming and resource demanding process. Those demands are made of the parties and the Court alike. Applicants have the protective benefit of s 85A of the NT Act in relation to costs. In our view, WGTO should not be permitted to relitigate the issue determined against them in the Daniel proceedings. Its attempts to do so in this matter constitute an abuse of process. The appeal should be dismissed.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, North & Mansfield.