RES JUDICATA
55 In Halsbury's Laws of Australia (Butterworths, 1995) Vol 12 at [190-40], a distinction is drawn between res judicata, issue estoppel, and Anshun estoppel. It is said that a final judgment by a competent tribunal may affect subsequent proceedings between the same parties in three ways.
56 First, the judgment extinguishes any cause of action which is the subject of the decision. If the cause of action is established, it is said to merge in the judgment. If the cause of action is rejected, the parties are estopped from claiming that it continues to exist. Consequently, no further proceedings may be brought as between the parties (or their privies) to enforce that particular cause of action. This effect is sometimes described as cause of action estoppel or res judicata: Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502.
57 Second, the judgment of the court represents a conclusive determination not only of the ultimate finding in the case but also of all issues of fact or law necessary to the decision. This is generally described as issue estoppel: Blair v Curran (1939) 62 CLR 464 at 531-2 and Jackson v Goldsmith (1950) 81 CLR 446 at 466.
58 Third, the decision may preclude the parties from raising in future proceedings causes of action or issues which they could and should have raised in the former proceeding. This extension of res judicata and issue estoppel is generally known in Australia as Anshun estoppel: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
59 In Spencer Bower, Turner and Handley, Res Judicata (3rd ed, 1996) (Spencer Bower), the term "res judicata" is used more broadly. Spencer Bower (at 2) speaks of res judicata as the rule which precludes a party, as against the other, from denying in subsequent litigation the correctness of the decision in the earlier litigation. Spencer Bower describes this as "res judicata estoppel" and says that it encompasses both "cause of action estoppel" and "issue estoppel". The second consequence - the merger of the original cause of action in a judgment in favour of the plaintiff - is referred to as "merger in judgment".
60 On either view, res judicata can arise only from a final judgment of a competent tribunal given on the merits. It cannot arise from a proceeding that was discontinued, or resolved by way of dismissal for want of prosecution, or non-compliance with court orders. In order to establish res judicata, it must be shown that the cause of action in the later proceeding is identical to that which was litigated in the former proceeding. The identity of the causes of action is determined as a matter of substance rather than form. Res judicata binds only the parties and their privies.
61 Res judicata was formerly regarded as a rule of evidence but is now generally considered to be a rule of public policy. When the doctrine applies, it constitutes an absolute bar to a subsequent suit for the same cause of action. As previously indicated at [16], the correctness of the decision is not relevant. If it is a final decision by a court having jurisdiction as to the same question and between the same parties, it will be binding on them unless and until overturned on appeal.
62 Spencer Bower states (at 17) that a party setting up res judicata by way of estoppel as a bar to the opponent's claim, or as the foundation of that party's own claim, is required to establish that:
· the decision was final and on the merits;
· it determined the same question as that raised in the later litigation; and
· the parties to the later litigation were either parties to the earlier proceeding or their privies.
63 Hamersley's submission that the NCC is barred by res judicata from dealing with the TPI application focuses largely upon the second of the two declarations made by Kenny J in First Hamersley Iron, namely:
"that [the NCC] does not have power to make a recommendation regarding declaration of the Rail Track Service to the designated Minister pursuant to s 44F(2)(b) of the Act."
64 Hamersley submits that this declaration was expressed in clear and unambiguous language. It was unqualified. It did not say that the NCC lacked this power only in relation to the Robe River application. It did not say that the declaration would last only for so long as conditions did not materially alter. It said that the NCC lacked this power in relation to this particular service and would do so for all time and in respect of any applicant who might wish to gain access to it.
65 The NCC and TPI challenge this interpretation of her Honour's declaratory orders. They submit that it is wrong to focus solely upon the second of the two declarations that her Honour made and to ignore the first. They say that when the second declaration is read together with the first, as her Honour plainly intended, it becomes immediately apparent that the second declaration does not have the effect for which Hamersley contends.
66 In considering these competiting contentions, it is useful to set out again the first of her Honour's two declarations. It was in the following terms:
"(1) The Rail Track Service, as defined in Pt 3 of the application for a declaration recommendation made pursuant to s 44F(1) of Pt IIIA of the Trade Practices Act by the second to sixth respondents, is not a service within the meaning of s 44B of the Act."
67 The NCC and TPI submit that the second declaration is the operative declaration and cannot be read in isolation from the first. The second declaration uses the term "Rail Track Service", which is capitalised and can only be understood by reference to the definition of that expression in the first declaration. The first declaration, in turn, links both declarations to the definition of "Rail Track Service" in part 3 of the Robe River application.
68 It follows, so the NCC and the TPI submit, that the second declaration does not bear the meaning for which Hamersley contends. It is to be read in a more limited manner. It was, along with the first declaration, intended to quell the particular controversy that gave rise to First Hamersley Iron. It must therefore be understood as preventing the NCC from dealing with the Rail Track Service as defined in the Robe River application and as having no greater scope.
69 The debate between the parties gives rise to the need to consider how a court goes about construing orders, particularly declaratory orders, of another judge.
70 Hamersley submits that when an order made by one judge comes before another judge for consideration, "… [t]he Court construes it just like any other document. It does not delve into the subjective intention of the judge pronouncing the order": Radmanovich v Nedeljkovic [2002] NSWSC 212 at [7]. That submission is plainly correct.
71 Hamersley next submits that the process of construction must be faithful to the meaning of the order as originally pronounced. A later court cannot make the order it considers the original court should have made. See generallyP W Young, "Construing Court Orders" (1998) 72 ALJ 117. Nonetheless, it is now tolerably clear, and Hamersley accepts, that in construing an order, regard may be had to the reasons for judgment and to other extrinsic material where appropriate: Athens v Randwick City Council (2005) 64 NSWLR 58 at [131]-[140] per Santow JA with whom Tobias JA agreed. Moreover, in construing an order, it may be relevant to know what the successful plaintiff or applicant sought by way of relief. I shall return to this issue shortly.
72 Hamersley formulates the issue of construction concerning the orders of Kenny J as follows:
· Whether, as Hamersley contends, the reference to "Rail Track Service" in the second declaration means "the bulk iron ore rail track transportation service provided by the Hamersley Rail Infrastructure Facility" with the consequence that the NCC has no power to make a recommendation regarding declaration of such a service; or
· Whether, as the NCC and TPI contend, the adoption in the second declaration of the defined term "Rail Track Service" from the Robe River application carries an implication that the second declaration merely states that the NCC lacks power to make a recommendation to declare such a service, pursuant to the Robe River declaration application.
73 Hamersley submits that in resolving this issue, there is no need to resort to any extrinsic material, including, it argues, the reasons for judgment. It submits that had Kenny J intended the narrow construction for which the NCC and TPI now contend, her Honour would have said so. It argues that the ordinary meaning of the words used in the second declaration is that the Court declared, once and for all, the position in respect of any recommendation regarding declaration of Hamersley's rail track service.
74 Hamersley says that such a construction is not surprising. On the NCC's construction, the Robe River parties would not have been inhibited by the declarations made by Kenny J from making a further application, even the very next day, for a recommendation regarding the same rail track service. That is because a second application by Robe River would not be "the Robe declaration application the subject of those orders".
75 Hamersley argues that on the NCC's construction, Hope Downs would have been free, immediately following First Hamersley Iron, to apply for a recommendation in exactly the same terms as Robe River had done. It says that would be contrary to principle. It would mean that the declarations made by Kenny J would not have quelled the controversy between the parties. The Court would therefore not have discharged its judicial function.
76 Hamersley says that if regard is had to extrinsic material, the result is the same. Although the rail track service was defined in Robe River's application for a recommendation, the scheme of Pt IIIA of the TPAprovides that declaration of that service would have been for everyone, not just Robe River. To have a sensible field of operation, the declaratory orders must have been intended to prevent someone else seeking a recommendation for declaration of precisely the same service. Moreover, Hamersley's application, which was the subject of Kenny J's declarations, sought both a narrower declaration that the NCC lacked power to deal with any submission in relation to the Robe declaration application, and a broader declaration that it lacked power to make a recommendation to the designated Minister for declaration of the Hamersley Rail Track Service. The first of the declarations sought was limited to the Robe declaration application. The second was not so limited. Hamersley submits that the second declaration reflected the terms of the broader declaration sought.
77 Finally, Hamersley submits the fourth of its undertakings to the Full Court makes it clear that the parties to the proceeding, including the NCC as well as the Full Court itself, assumed that Kenny J's orders related not just to the Robe declaration application, but also to any subsequent application that might be brought by Hope Downs. Had Kenny J's orders been regarded as limited to the Robe River application, no such undertaking by Hamersley would have been necessary.
78 The NCC and TPI challenge this interpretation of Kenny J's orders. They submit that the starting point when construing a judicial order must be to consider precisely what was needed to quell the justiciable controversy that gave rise to the proceeding. They say that it would go beyond the proper boundaries of the judicial process to determine rights by applying the law to facts, which are neither agreed nor determined, without regard to the evidence led in the particular case.
79 The respondents say that the controversy before Kenny J plainly did not extend to all possible future times and circumstances. Her Honour's orders should not be interpreted as though it did. They say that resort may be had to contextual matters, such as the reasons for judgment and the pleadings, in order to identify the subject matter of the controversy as an aid to interpreting the orders. They refer in that regard to: Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 at [49]-[51]; Athens v Randwick City Council (2005) 64 NSWLR 58 at [27]-[29] and [129]-[140]; Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619 at [28]-[36]; Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) (2007) 147 LSJS 65.
80 The respondents also refer to a recent article, J Tarrant, "Construing undertakings and court orders" (2008) 82(2) Australian Law Journal 82. In that article, it is suggested that the courts have taken two different approaches as to whether reference may be made to the reasons for judgment when construing court orders. On one view, this may be done only where a court order is ambiguous. On this view, the reasons for judgment are considered to be extrinsic material. However, a more recent line of authority has emerged, which holds that court orders must always be examined in the context of the reasons for judgment.
81 A number of the authorities cited by Tarrant are instructive. First, by way of background, in Ecrosteel Pty Ltd t/as Packs Business Form Brokers v Pefor Printing Pty Ltd (unreported, Sup Ct, NSW, 12 November 1997), Santow J observed (at 6) that
"orders have to cope with situations not readily foreseen, where their later application, and hence their precise interpretation, may be open to argument."
82 Tarrant notes that there is a debate as to whether it may be appropriate, in certain circumstances, not merely to have regard to the reasons for judgment but also other material in order to interpret a court order. This would include pleadings and affidavits.
83 Tarrant cites in support of the traditional, and more constrained, view that there must be ambiguity in a court order before the reasons for judgment can be considered: McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 312; Repatriation Commission v Nation (1995) 57 FCR 25 at 33; and Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653 at 655. He notes, however, that in relation to contracts, there has been a movement away from the requirement that there be ambiguity before extrinsic material can be examined: Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451. There has been a similar movement in relation to the interpretation of corporate constitutions: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1 at [51], [100] and [238].
84 That movement was anticipated in relation to court orders in Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78, in which a Full Court of this Court held that in interpreting an order of a court framed in unambiguous language, regard should still be had to the reasons given by the court for making the order because they formed part of the context in which the order was made. See also Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230. This second, and more flexible, line of authority was preferred by the Court of Appeal in Athens v Randwick City Council where Santow JA explained (at [129]) that the "purpose of a court order is, ordinarily, to give effect to a judgment". See also Polyaire Pty Ltd v K-Air Pty Ltd (No 4) (2007) SASC 36; Kwikspan Purlin System Pty Ltd v Federal Commissioner of Taxation (1987) 93 FLR 263.
85 In my view, the weight of authority now favours the view that ambiguity is not required before going beyond a court order. Such orders should always be interpreted in the context of the reasons for judgment. That is the position taken by Tarrant, with whose conclusions I agree.
86 Indeed, I would go further. In my opinion, it is permissible when construing court orders (irrespective of whether they be ambiguous) to have regard to, at least, the pleadings which defined the issues to be resolved: Owston Nominees No 2 Pty Ltd v Branair Pty Ltd (2003) 129 FCR 558 and Athens v Randwick City Council.
87 I note that in Owston Nominees No 2 Pty Ltd v Branair Pty Ltd (2003) at 569, Allsop J concluded that, when construing court orders, regard may even be had to the evidence that was led before the judge who pronounced those orders. See also Blacktown Concrete Services Pty Ltd v Ultra Refurbishing & Construction Pty Ltd (in liq) (1998) 43 NSWLR 484 and Australian Energy Ltd v Lennard Oil NL (No 2) at 232.
88 The NCC and TPI argue that a fair reading of First Hamersley Iron makes it clear, as does the legislative regime in Pt IIIA of the TPA,that Kenny J was engaged in making a determination which was entirely dependent on the evidence led in that case as to the then current state of facts. They refer to [15]-[25] of her Honour's reasons for judgment. They submit that Kenny J was not asked, and did not purport, to make orders expressed to extend to all possible future times and circumstances. They submit that her Honour's orders should not be interpreted in that way.
89 The respondents say that Hamersley has sought to interpret Kenny J's orders as having some ambulatory effect by artificially and impermissibly isolating the second declaration from its context. They say that [8] of her Honour's reasons for judgment makes clear the contextual relationship between the declarations ultimately made. There, Kenny J stated explicitly that what became the second declaration was sought "in consequence of" the first.
90 Finally, the NCC, in particular, says that Hamersley's attempt to rely upon paragraphs 3(a) and (b) and 5(a) and (b) identified in its Details of Claim in First Hamersley Iron as revealing a dichotomy between a specific form of declaration and an ambulatory form of declaration, thus leading to the inference that her Honour intended the second declaration to have ambulatory effect, should be rejected. In its written submissions, the NCC says:
"13.1 The premise on which the Applicant relies is unsound. Each of paragraphs 3(a) and 5(a) deals with process before the NCC, and each of paragraphs 3(b) and 5(b) deals with the outcome of the process before the NCC. Each of paragraphs 3(b) and 5(b) is specific, not ambulatory, because it incorporates the definition of "Hamersley rail track service" first set out in paragraph 1 by reference to the particular [Robe River] application.
13.2 Further, it is clear that the forms of relief sought in paragraphs 3 and 5 of the Application depend on the entitlement to relief in the form of paragraphs 1 or 2 first being established; see the chapeau to paragraph 3.
13.3 For these reasons, it is clear that the dichotomy in question is between process and outcome, not between the specific and the ambulatory."
91 The NCC concludes that the application in First Hamersley Iron was drafted in the recognition that specificity was required and that any request for permanent, ongoing, and ambulatory relief would have been rejected. It submits that her Honour's orders should not be read in any other way.
92 TPI joins in the NCC's submissions. However, it adds that apart from the fact that Kenny J used the term "Rail Track Service", which her Honour had carefully and narrowly defined in her first declaration, it was not open to her to make a declaration in any wider terms. That was because there was no matter before the Court other than the amenability of the Rail Track Service, as defined, to a declaration recommendation by the NCC. Accordingly, the Court had no jurisdiction to make a declaration about anything more than it did: Bass v Permanent Trustee Ltd (1999) 198 CLR 334 at [45]-[47]. TPI also cites Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 in support of the proposition that, where the underlying factual subject matter of a proposed declaration is uncertain or hypothetical, the Court lacks jurisdiction to make a declaration.
93 The NCC and TPI do not rely solely upon the need to construe Kenny J's orders in context. They also rely upon the policy that underlies Pt IIIA of the TPA. They submit that the very notion of a "service" that may be declared imports into the process, which is to be conducted by the NCC, elements that are dynamic. Each access application must turn upon its particular facts. These include not merely what the provider of the service does, or has available, but also what the person seeking access actually desires. Unless read in this manner, the criteria set out in s 44G cannot be sensibly applied.
94 Hamersley responds by pointing out that Kenny J made it clear when she delivered her reasons for judgment that she was prepared to grant permanent injunctive relief against the NCC in the terms that she foreshadowed. It submits that, but for the assurance given by Mr Brett, her Honour would have granted that relief. It says that there would then have been no basis upon which any later court could properly have read down those terms. If, for whatever reason, circumstances changed so dramatically that the injunction as originally granted was no longer appropriate, application could be made to have it discharged or varied. However, failing such application, the injunction would stand and operate for all time according to its terms.
95 There are a number of difficulties with this aspect of Hamersley's submissions. In the first place, I am far from satisfied that Kenny J would have granted an injunction in the terms foreshadowed but for Mr Brett's assurance. The transcript reveals that her Honour was prepared before pronouncing final orders to hear submissions from the parties as to the form that any injunction should take. It is entirely speculative as to whether any such submissions would have been made. It is a further matter of conjecture as to whether, having heard such submissions, her Honour would have granted the injunctive relief foreshadowed in exactly those terms.
96 Next, there is obviously force in Mr Young's submission to the Full Court regarding the effect of any changed circumstances. That was said mainly in the context of issue estoppel. However, it applies with equal force to res judicata.
97 There is no evidence before me that the "Rail Track Service", as defined in First Hamersley Iron, operates today as it did nine years ago. Indeed, there is evidence to suggest that it does not. That means that there must be a question as to whether it still constitutes "the use of a production process", irrespective of whether the test used by Kenny J is held to be correct.
98 The evidence as to the current position regarding the Rio Tinto Ltd group of companies, of which Hamersley is a wholly owned subsidiary, is that Rio Tinto holds interests in and operates eleven mines and associated iron ore treatment facilities. As a result of Rio Tinto's acquisition of North Limited in 2000, it acquired a majority interest in what had previously been the Robe River Joint Venture. Following that acquisition, Rio Tinto integrated the operations of Hamersley and Robe River. In that context, Pilbara Iron Pty Ltd, a wholly owned subsidiary of Hamersley, operates and maintains the combined infrastructure assets, including the rail assets.
99 This means that the existing dedicated and integrated rail system, which carries ore from the Rio Tinto mines to the ports at Dampier and Cape Lambert, includes a number of lines that were not part of the Hamersley Rail Track System at the time of First Hamersley Iron. There is now a dual-track system between Emu Siding and Rosella, whereas in 1998 there was only a single track. In addition, there are now spur lines from the West Angelas Mine to Juna Downs and from the Hope Downs mine to the West Angelas spur line, which were not part of the Hamersley Rail Track Service at that time. The current, and past, rail networks are set out in annexures A and B to this judgment, and are marked JM1 and JM3 respectively.
100 The TPI application seeks a recommendation for a declaration in respect of the railway line from Paraburdoo to Dampier which is approximately 385 kilometres long, the railway line from Yandicoogina to Rosella Siding (on the Paraburdoo to Dampier railway) which is approximately 195 kilometres long, and the railway line from Brockman No 2 to Rosella Siding which is approximately 45 kilometres long.
101 The access that TPI seeks includes that part of the Hamersley rail track service sought by Robe River. However, TPI seeks greater access as well. Hamersley, not surprisingly, submits that the greater includes the lesser. Accordingly, if part of that which TPI now seeks is excluded because of what was determined in First Hamersley Iron, it must follow that TPI's application as a whole cannot proceed.
102 Logically, Hamersley's submission is correct. However, there is more to be said. The evidence suggests that the configuration of that part of the rail track, now sought to be the subject of a declaration, is broadly similar to that which was the subject of the earlier proceeding. However, putting such questions to one side, there is nothing to suggest, and no evidence to support, the conclusion that material circumstances as to its usage have not changed. That is significant given that the facility, which is the subject of the current application, is clearly not the same as that considered in First Hamersley Iron.
103 Nine years have elapsed since First Hamersley Iron was decided. It is clear from the evidence before me that there have been major developments in the Pilbara iron ore industry during that time. The rapid rise of China to become the world's largest steel producer and importer of iron ore has presented the industry with an opportunity to grow at a rate and a scale not contemplated a decade or so ago. According to Building Prosperity - The Australian Iron Ore Industry in the 21st Century (May 2006) by Malcolm Gray, an economic consultant commissioned by Rio Tinto to write the report, iron ore production in Australia grew 80 per cent faster than total world production in the ten years to 2005. In the same period, Australian iron ore exports grew 25 per cent faster than total world exports.
104 Mr Gray says that the Pilbara iron ore rail systems are regarded as among the best heavy haul railways in the world. He says that they form a vital part of a closely integrated iron ore production process. Importantly, he says in his report (at page 8):
"The design of this process has been constantly refined. Innovations have included the introduction of the 'One Mine' integrated production process by Hamersley Iron, and the Pilbara Rail Company and now Pilbara Iron initiatives by Hamersley Iron and Robe to combine and, through integrated management, secure more efficient operation of their infrastructure assets."
105 In other words, Mr Gray regards the Pilbara iron ore industry as being in a state of constant change, with new mines being developed and there being a consequent expansion of infrastructure upon which the industry depends. He points out that both Hamersley and Robe River have made major investments in this area, including the construction of rail extensions to new mines at Yandicoogina and West Angelas. These rail extensions now form part of the overall rail network.
106 Mr Gray refers specifically to the construction of dual tracks in the most heavily congested parts of the rail system in order to accommodate increased production. He also notes that concrete rail sleepers are replacing timber ones along the track from Brockman Mine to Rosella Siding. He refers to new projects that are under construction or have been completed in response to China's demand for iron ore imports. These include dual tracking 145 kilometres of railway north of Rosella to link with existing dual track and providing further dual track for the whole of the section of rail between Rosella and the Robe-Hamersley Iron crossover. He refers to the extension of the railway track system to Hope Downs to service the new mine, which is to commence production in 2008.
107 Mr Gray's report regarding the changes that have taken place over the past decade or so in relation to the Hamersley rail infrastructure were not challenged before me. His findings support the respondents' contention that the TPI application relates to access to a rail track system that differs in material respects from that which was the subject of First Hamersley Iron. There are minor differences in configuration but, more importantly it would seem, significant differences in usage. The fact that there have been such changes makes it difficult to assert, as Hamersley does, that the issues raised in the TPI application are identical to those in the Robe River application.
108 I am mindful of TPI's submission that there is a further distinction between the rail track service that was considered in the Robe River application and that to which access is sought in the TPI application. The Robe River application was for a "point to point" service; that is, a service enabling the running of trains from a point near Emu Siding to a point of intersection with the proposed Robe River rail line. The aim was to allow the development by Robe River of its West Angelas Mine and the transport of iron ore to Port Walcott. The use of the Hamersley rail network contemplated by TPI is for "an all-points" service; that is, one that would permit access at any point along that network.
109 There may be some logic in the distinction between a "point to point" and an "all-points" service. However, its significance, as a practical matter, and in the context of this case, eludes me. A "point to point" service need not necessarily preclude a train from stopping along a particular route, allowing access to be gained along the way. I therefore reject this aspect of the NCC's submission.
110 I accept that the track under consideration in First Hamersley Iron lies squarely within the Hamersley rail network and that therefore that track would be encompassed within any recommendation made in response to the TPI application. My difficulty with Hamersley's submission lies in the premise that nothing of any consequence has changed and its somewhat bold submission that, even if it has, Kenny J's orders are, to put the matter colloquially, "frozen in time".
111 It is of the essence of any estoppel that it involves identity of subject matter. The party seeking to set up an estoppel must establish that the opponent is seeking to re-agitate some question of law or issue of fact, which has been the subject of a final decision between the same parties by a court of competent jurisdiction.
112 In Turner v London Transport Executive [1977] ICR 952, a plea of issue estoppel failed because "the findings of the industrial tribunal were not sufficiently clear and precise". Browne LJ said (at 964):
"The essential foundation of a plea of issue estoppel must be that the issue or issues raised in the first proceedings, and the issue or issues raised in the second proceedings are identical. It is for the party who seeks to rely on the estoppel to establish this identity." [Emphasis added.]
113 Some examples of just how strictly the courts have viewed this requirement may be useful. It has been held that a party, against whom judgment has been given when suing in a representative capacity, is not estopped from suing in a different representative capacity. That is because the subject matter of the litigation is not the same in the two proceedings. See generally Hacking v Lee (1860) 9 WR 70. Similarly, an acquittal on a charge of wilfully making a false tax return has been held not to be a bar to a civil claim brought by the Commissioner alleging that the return was fraudulent or wilfully misleading. The issues were not identical. In addition, the onus of proof differed: Maxwell v IRC [1962] NZLR 683.
114 There are cases in which a change of circumstances has led to the rejection of a claim of estoppel. In Ord v Ord [1923] 2 KB 432, a wife sued for maintenance under a deed of separation. The husband sought to have the deed set aside on the basis that she had fraudulently concealed her adultery. In the first action, the husband failed to prove adultery. In a later action for further instalments, it was held that he could rely upon other acts of adultery of which he had no knowledge at the time of the first action.
115 Similarly, in Richards v Richards [1953] P 36, it was held that where a wife's charge of cruelty had been dismissed by justices, there was no estoppel preventing her from leading the same evidence, together with other evidence covering a later period, to establish cruelty at a later date. In Burman v Woods [1948] 1 KB 111, it was held that a decision refusing an order for possession based on hardship would not bar later proceedings. That was because the factors relevant to hardship might change. To the same effect is Mills v Cooper [1967] 2 KB 459, where it was held that a decision that the defendant was not a gypsy did not bar proceedings alleging that he was a gypsy on a later date.
116 Spencer Bower (at 199) considers these cases to support the principle that issue estoppel "does not apply in a changing situation". The same point was made in New Brunswick Railway Company v British and French Trust Corporation [1939] AC 1, where Lord Maugham LC said (at 20):
"If an issue has been distinctly raised and decided in an action, in which both parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them; but in my view the doctrine cannot be made to extend to presumptions or probabilities as to issues in a second action which may be, and yet cannot be asserted beyond all possible doubt to be, identical with those raised in the previous action. In the earlier action here the only relevant issue was as to the true construction of the only bond then sued upon; … The issue of construction in the second action could indeed be proved in the second action to be similar to that decided in the first; but it related to a different cause of action based on other bonds and could not be asserted to be the same issue. Moreover, it is a matter of common knowledge that such bonds are often issued at different dates and in different countries, matters which might well have a possible bearing on their true construction." [Emphasis added.]
117 In general, the identical subject matter requirement has been construed strictly. In Co-Ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 47 ALJR 519, Walsh J said (at 522):
"In order that the principle of issue estoppel may apply it … must be possible to assert without doubt that the issues are identical."
118 In the light of these authorities, Hamersley's estoppel claim must fail. In my view, the TPI application raises different issues to those that confronted the NCC at the time of First Hamersley Iron. The orders that Kenny J pronounced must be construed in the light of her Honour's reasons for judgment as a whole, as well as in the context of the issues which presented themselves at the time.
119 I should, for the sake of completeness, deal with Hamersley's alternative submission. It argues that even if its rail track today is not the same in all relevant respects as that of 1998, its claim of res judicata should still succeed. It submits that no matter how great the differences there may be between the two track systems, Kenny J's orders still speak for themselves, and must stand unless and until they are varied.
120 Hamersley recognises the implications of this submission. It accepts that, over time, conditions may change to such a degree as to warrant reconsideration of whether its railway system still involves "the use of a production process". It says that in that event, it would be open to the NCC to make application, pursuant to O 37 r 6 of the Federal Court Rules, for a variation of Kenny J's orders. This would be on the basis of "matters occurring after judgment".
121 It has been held that O 37 r 6 does not authorise the Court to set aside a judgment regularly passed and entered because new facts and circumstances have arisen. See Gamser v Nominal Defendant (1977) 136 CLR 145, which concerned a similar rule of the Supreme Court of New South Wales. If an injunction has been granted, however, an order may be made under this rule suspending the operation of the injunction from the date of the changed circumstances. See generally Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (1978) 35 NSWLR 365.
122 I am unable to accept this variant of Hamersley's submission. If, as the NCC and TPI submit, Kenny J's orders related specifically to the Hamersley rail track service as it then stood, and if either the configuration or use of that track now differs significantly, there is no basis for any estoppel. Moreover, there is no question of the NCC having to establish changed circumstances. It is Hamersley which must establish that the earlier judgment gives rise to an estoppel.
123 I doubt that O 37 r 6 was intended to provide a mechanism by which a party could escape from an established estoppel merely because circumstances have changed. Rather, as previously discussed, its purpose seems to have been to enable a judge to vary or discharge an injunction granted previously where the circumstances giving rise to that injunction have changed.
124 I am fortified in my conclusion that there is no res judicata by the nature of the legislative scheme under which the NCC exercises its statutory duties. The NCC is not an ordinary litigant. It does not seek to vindicate its own private rights. Prima facie, duties conferred by statute are intended by Parliament to be exercised from time to time as occasion arises. See generally s 33(1) of the Acts Interpretation Act 1901 (Cth) and the well-known observations of Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211 and 218-9.
125 It follows that Hamersley's claim of res judicata is not made out.