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[1991] NSWCA 230
respondent. Appeal dismissed. The respondent's costs were to be borne by the appellants.
The appellants had already litigated claims about the foreign currency loans and related dealings in the Federal Court. They later brought Supreme Court claims seeking relief concerning the guarantees and mortgages, relying on statutory unjustness and unconscionability. The Court of Appeal held that these later claims could and reasonably should have been raised in the earlier litigation. It therefore dismissed the appeal from the decision barring the claims.
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Rahme v Commonwealth Bank of Australia concerns whether a party may bring a second set of proceedings based on claims that could have been raised in earlier litigation between the same parties. The Court of Appeal dismissed the appeal and upheld the conclusion that the appellants were precluded from pursuing their later claims against the Bank.
No linked legislation citations have been extracted yet.
The appellants, Mr Rahme and his wife, worked together in a building business. In 1984 and 1985, companies associated with them obtained foreign currency loans through the Commonwealth Bank. The security arrangements included guarantees given by the appellants and mortgages over land. The judgment says that changes in the exchange rate increased the Australian-dollar amounts needed to discharge the loans. The borrowers sold properties to meet the increased obligations, and the appellants considered those sales had caused them substantial loss.
In 1988, the appellants and two associated companies brought proceedings in the Federal Court against the Bank, a branch manager and an accountant. Their pleaded causes of action included negligent advice, breach of contractual duty of care, Trade Practices Act claims, fraud, breach of fiduciary duty, relief against penalty rates and a claim based on s 261 of the Income Tax Assessment Act. They sought damages and relief affecting contractual arrangements and securities, including the guarantees and mortgages. The Federal Court dismissed the claims. The Full Federal Court dismissed the appeal: David Securities Pty Ltd v Commonwealth Bank (1990) 23 FLR 1.
The appellants later began Supreme Court proceedings against the Bank. They sought declarations that the guarantees had been induced by unconscionable conduct, or alternatively that the mortgage agreements were unjust under s 7(1)(a) of the Contracts Review Act 1980. They also sought orders setting aside the mortgages insofar as they secured amounts payable under the guarantees.
The Bank pleaded, among other grounds, that the claims were barred by res judicata, cause of action estoppel, issue estoppel, the Anshun principle and merger in judgment. The Supreme Court ordered that this preclusion question be determined separately. Bryson J held that the appellants were precluded from raising the claims and dismissed the proceedings. The appellants appealed.
The Court of Appeal's reasons were given by Priestley JA, with whom Meagher JA and Hope AJA agreed. The order was: “Appeal dismissed”; the respondent's costs were to be borne by the appellants.
Priestley JA approached the case through the extended principle associated with Henderson v Henderson, as described and applied by the High Court in Port of Melbourne Authority v Anshun Pty Ltd. His account of Anshun was that the principle can apply to a later proceeding based on a cause of action that could have been raised in an earlier proceeding against the same opposing party. The central question was whether it was unreasonable for the party to have refrained from raising the later claim in the earlier litigation.
The Court of Appeal did not treat the mere possibility of raising a claim earlier as sufficient, without more. Priestley JA examined whether the later claims were closely connected to the earlier proceedings and whether the facts supporting them belonged to the subject matter already litigated. He also made clear that he did not regard the precise wording of the test as critical in this case. The formulations used by Bryson J, by the appellants, and by Priestley JA raised substantially the same considerations.
For the Contracts Review Act claim, Priestley JA accepted Bryson J's detailed comparison of the pleadings and materials in the two sets of proceedings. The earlier Federal Court case had involved extensive evidence about the dealings between the appellants and the Bank, the loan arrangements and relevant documents. The later claim relied on matters such as the parties' bargaining positions, the appellants' understanding of the documents and English language, the availability of advice, possible explanations, and whether the Bank disclosed the possible operation of its powers of sale. Bryson J had found that these matters, or substantially the same matters, were also raised in the Federal Court proceedings. Priestley JA independently retraced the comparison and said he could see no mistake in Bryson J's conclusions.
Jurisdiction was also addressed. Priestley JA said that the Federal Court had jurisdiction to entertain the Contracts Review Act claim by the time of the Federal Court hearing. The hearing took place in early 1989, after the cross-vesting legislation became operative in July 1988. He considered that an application to amend the Federal Court proceedings to include the claim would have been granted as of course. He did not need to decide definitively whether the Federal Court could have heard such a claim before the legislation commenced.
The court also emphasised the practical consequences of allowing another proceeding. Priestley JA said that much of the same ground would have to be covered again, creating substantial waste and a possibility that a second court could reach results inconsistent with decisions reached after considerable effort in the Federal Court. He added that identifying which factual issues had already been decided would make any later hearing complicated. These observations explain why the court saw the later proceeding as more than a different legal label attached to a wholly separate dispute.
The unconscionability claim was dealt with on the same basis. Priestley JA considered that it stood in at least as strong a position for preclusion as the Contracts Review Act claim. He noted that many material factual issues might already have been dealt with in the Federal Court, such that issue estoppels could potentially leave little or no scope for further fact-finding. But he did not decide that issue-estoppel question after analysis. Instead, he relied on the extended Henderson principle and the reasons already given.
The judgment presents the extended Henderson principle as an existing rule accepted by the High Court in Anshun. Priestley JA describes it as applying, among other situations, where a party brings a later proceeding on a cause of action that could have been raised in earlier litigation between the same parties. His account focuses on whether it was unreasonable to leave that claim out of the earlier proceedings.
The judgment distinguishes this analysis from a finding that the later claim was necessarily barred by strict cause of action estoppel or issue estoppel. In discussing Anshun, Priestley JA recounts that the High Court had found the indemnity claim was not barred by res judicata or issue estoppel in the strict sense, but nevertheless held it precluded under the extended principle. That distinction is important to the reasoning in Rahme: the Court of Appeal upheld preclusion through the extended principle, not by setting out a separate, comprehensive determination of every estoppel pleaded by the Bank.
The decision applies that existing framework to the particular overlap between the proceedings. The earlier litigation had addressed the broad dealings and securities connected with the loans; the later claims depended on substantially overlapping factual matters and could have been added to the earlier case. The decision therefore illustrates how the principle may operate where the later cause of action is framed differently but draws on the same commercial history and factual record.
The judgment does not purport to restate all limits or exceptions to the principle. Nor does the supplied text establish a broader change in the law after this decision. The safest account of its contribution is its application of Anshun to these claims, on the facts and procedural history before the Court of Appeal.
The judgment has no numbered paragraphs in the supplied text, so the passages below are identified by their subject rather than by paragraph number.
Priestley JA says the extended Henderson principle applies 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.” In plain English, a claim may be blocked if it belonged in the earlier case and it was unreasonable to leave it out.
On the overlap in evidence, Bryson J's findings, adopted by Priestley JA, were that all or practically all facts supporting the Contracts Review Act claim were matters the Federal Court was required to consider, or could have considered, in the earlier litigation. In plain English, the later statutory claim was not based on a substantially separate factual dispute.
Priestley JA says allowing the later claim would mean that “much of the same ground would be gone over all over again.” In plain English, the court considered the burden of repeating the litigation relevant to whether the later proceeding should be allowed.
On the unconscionability claim, Priestley JA says the same conclusion should be reached, relying on the extended Henderson principle. He mentions possible issue estoppels but does not decide their full effect. In plain English, the court barred that claim without needing to resolve every possible estoppel argument separately.
The judgment is most relevant where a party brings a second proceeding against an opposing party after earlier litigation, and the later claim concerns the same underlying dealings. Particular features of this case included:
The decision does not say that every later claim arising from a related commercial relationship is automatically barred. Its reasoning depends on the close factual connection, the capacity to raise the claims earlier, and the assessment that it was unreasonable not to do so in this particular litigation. A lawyer applying the decision would likely want to compare the pleadings, evidence, relief sought, parties and procedural opportunity in both proceedings.
The supplied judgment contains no decisions after 20 December 1991 and therefore does not show how later courts treated Rahme itself. It would not be possible, on this source alone, to state whether later courts followed, distinguished, limited or otherwise applied it.
The judgment does identify the authorities it used. It explains the extended principle through Henderson v Henderson and Anshun, and quotes Blair v Curran in its discussion of the consequences of factual determinations. It also refers to the earlier Federal Court litigation, David Securities Pty Ltd v Commonwealth Bank, as procedural history. Those references do not establish later treatment of Rahme.
For research or professional use, the distinction matters: this judgment's reasoning and outcome can be extracted from the supplied text, but its subsequent precedential history cannot. Any account of later treatment would require additional judgments or a reliable case-law citator, neither of which is supplied here.
Several questions remain outside what the Court of Appeal decided.
First, Priestley JA expressly left open whether the Federal Court had jurisdiction to entertain the Contracts Review Act claim before the cross-vesting legislation commenced. He considered that point unnecessary because the legislation was operative by the time of the Federal Court hearing.
Second, the judgment does not determine the complete scope of any issue estoppels arising from the Federal Court decision. Priestley JA considered that the factual issues might collectively leave no room for further fact-finding on the unconscionability claim, but did not carry out the lengthy analysis that would be needed to establish this.
Third, the court's application turned on its comparison of the actual pleadings, evidence and proceedings. The judgment does not offer a mechanical checklist for deciding when it is unreasonable to omit a claim. It says that the precise words used to formulate the test were not critical in the circumstances, signalling a fact-sensitive assessment rather than a formula detached from the litigation history.
Finally, the supplied text cannot answer how the principle has been developed or qualified in later cases, or how the decision's reasoning applies to materially different procedural settings. Those questions require sources beyond this judgment.
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PRIESTLEY, MEAGHER JJA and Hope AJA 3 December 1991, 20 December 1991
"ANSHUN" TYPE PRECLUSION - customer of bank makes a claim for damages and other relief against bank (and others) suffered because of changes in exchange rate in connection with foreign currency borrowings through bank - claim brought in Federal Court alleging a number of causes of action - lengthy evidence given dealing with course of events between customer and bank - customer's claim dismissed - appeal to Full Federal Court dismissed - special leave to appeal to High Court granted limited to a point not relevant to present proceedings - customer then commences proceedings in Supreme Court for relief against bank in regard to securities given in connection with foreign currency borrowings - proceedings based on two causes of action not relied on as such in Federal Court proceedings - in Supreme Court at first instance customer held precluded from bringing claim because circumstances fall within rule in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 - on appeal, customer claims rule does not apply - facts and causes of action considered - held, appeal fails. ORDERS 1. Appeal dismissed. 2. Respondent's costs to be borne by appellants.
Priestley JA Background to appeal in 1990 Supreme Court Proceedings.
Events leading to 1988 Federal Court proceedings. Mr Rahme was a builder. He and his wife ("the appellants") worked together in a building business which they conducted, at least in part, through companies they controlled.
In 1984, the appellants needed finance for purposes of their business. They banked at the Dee Why branch of the Commonwealth Bank ("the Bank") and spoke there to the manager, Mr Craig, about raising finance. Mr Craig mentioned the possibility of getting a foreign loan at lower interest rates than then available for borrowing in Australia. Mr Rahme said his accountant was not familiar with foreign currency loans. Mr Craig mentioned the names of three accountants who he thought were knowledgeable in this area. Mr Rahme chose one who practised locally. This was Mr Morgan who was subsequently employed by the appellants in their dealings with the Bank in obtaining loans in foreign currency and the transactions that afterwards took place in dealing with the loans. There were two main loan transactions, one in 1984 and the other in 1985. The 1984 transaction was with one of the associated companies, the 1985 transaction with another. A guarantee which the appellants had given to the Bank in 1983, with a mortgage of land as supporting security, was agreed to be used as part of the security for the 1984 loan transaction. Another guarantee, with a mortgage of other land as supporting security, was given to the Bank by the appellants in 1985 as part of the security for the 1985 loan transaction.
Because of changes in the rate of exchange of Australian dollars for Swiss francs became necessary for the borrowers to pay many more Australian dollars in discharge of their loan obligations than had been anticipated at the time the loans were arranged. To meet their increased obligations they had to sell a number of properties which they had intended to hold. In their view such sales caused them considerable loss.
Federal Court Proceedings. In 1988 the appellants and two companies which they controlled and had been parties to the loan arrangements began proceedings as applicants in the Federal Court claiming damages from the Bank, Mr Craig and Mr Morgan as respondents. Their claims alleged causes of action for: negligent advice; breach of a contractual duty of care; breach of the Trade Practices Act; fraud; breach of fiduciary duty; relief against penalty rates; and one based on s261 of the Income Tax Assessment act.
Speaking generally, the appellants alleged that the respondents were responsible for all the losses allegedly suffered by the appellants and their companies because of their entry into the foreign currency borrowings, that the respondents should pay to them and their companies the damages they had suffered, and that a number of the contractual arrangements made between the Bank and some or all of the applicants in the Federal Court and various securities should be declared void. Included among these securities were the two guarantees, and the two mortgages: see para 5 of the appellant's application to the Federal Court, Schedule C to that application, and para 67 of the Further Amended Statement of Claim.
The Federal Court proceedings were heard by Hill J. They took about seventeen hearing days of which about fourteen were spent in the taking of evidence and three in the making of submissions. On 11 May 1989 Hill J published detailed reasons for dismissing the applicants' claims against all respondents.
The unsuccessful applicants appealed to the Full Federal Court. That court (Lockhart, Beaumont and Gummow JJ) on 10 May 1990 published detailed reasons for ordering that the appeals be dismissed: David Securities Pty Ltd v Commonwealth Bank (1990) 23 FLR 1.
Commencement of Supreme Court proceedings. In July 1990 the appellants began proceedings in the Common Law Division of this court against the Bank as defendant in which they claimed declarations that they had been induced to give the two guarantees by the Bank's unconscionable conduct, alternatively declarations that the agreements pursuant to which the mortgages had been given were unjust within the meaning of s7(1)(a) of the Contracts Review Act 1980, and orders setting aside the mortgages so far as they purported to secure any moneys payable under the guarantees, and consequential declarations and orders.
Application for special leave to High Court. On 12 October 1990 an application for special leave to appeal generally to the High Court from the decision of the Full Federal Court was dismissed; special leave was granted limited to one point only, concerning the question whether the appellants were entitled to recover some payments of withholding tax allegedly made because of a mistake of law by the appellants: David Securities Pty Ltd v Commonwealth Bank (1990) 20 Leg Rep SL 2. This point is not material to the present proceedings.
Bank moves to enforce guarantees and mortgages. By notices dated 24 October 1990 the Bank demanded payment from the appellants of the amounts due under the mortgages securing the two guarantees.
The Supreme Court proceedings continued. On 21 November 1990 the appellants were given leave to amend their statement of claim in the Supreme Court proceedings. The amended statement of claim, which included references to the notices of demand of 24 October 1990 was filed on 4 December 1990.
URJ RAHME v COMMONWEALTH BANK OF AUSTRALIA (Priestley JA) 3
The Bank then filed a defence which asserted, in para 22, that the appellants were precluded from raising the claims in their statement of claim "by reason of principles of res judicata, cause of action estoppel, issue estoppel, the principle in Anshun, and the principle of merger in judgment by reason of the claims made and determined in the Federal Court Proceedings between the parties".
On 8 February 1991 the court ordered that the question raised by par 22 be tried separately and in advance of the balance of the proceedings.
Bryson J heard the proceedings on this separate question on 11 February 1991 and on 28 February 1991 published reasons for making, and made, orders declaring the appellants were precluded from raising the claims in their Supreme Court proceedings by reason of the claims made and determined in the Federal Court proceedings. He also ordered that the appellants pay the Bank's costs of the separate question; he then dismissed the proceedings with costs. The appellants then appealed to this court.
Contracts Review Act claim. For the appellants it was argued that Bryson J was wrong in applying what was called the anshun principle to this claim. The case referred to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 was a sequel to an action in which a plaintiff sued two defendants for damages for personal injuries and succeeded against both. In the same proceedings each defendant claimed contribution from the other. One defendant, Anshun Pty Ltd ("Anshun") succeeded in recovering ninety per cent contribution from the other, Port of Melbourne Authority ("the Authority"). The Authority recovered ten per cent contribution from Anshun. In later and separate proceedings the Authority claimed, pursuant to an indemnity in an agreement between the Authority and Anshun, that Anshun was bound to indemnify it for what it had had to pay to the plaintiff in the personal injury proceedings.
Gibbs CJ, Mason J and Aickin J in joint reasons first held that the indemnity claim could have been litigated in the first proceedings. They next held that the Authority was not barred from later bringing the indemnity claim either by the doctrine of res judicata, or issue estoppel in the strict sense (at 597). They then said that the critical issue was whether the case fell within the extended principle expressed by Wigram VC in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313. The passage they then cited (at 598) said: "where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court 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, in advertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." (at 115, 319)
They then mentioned that the principle had been affirmed by the Privy Council on four occasions, in two of which it was applied to shut out litigation of an issue which could and should have been litigated in earlier proceedings (at 598). They next discussed various aspects of the principle, including situations where (1) what was brought forward in defence to the second proceeding was matter which
would have provided a defence to the first but was not raised, (2) what was brought forward in the second proceeding was a cause of action which could have been relied on as a defence in the first proceeding, but was not, and (3) a second proceeding upon a cause of action which could have been raised as a cause of action in the first proceeding, but was not.
In regard to category (2), they said "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. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiffs claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding." (at 602)
They then went on to discuss category (3) in a way suggesting that it was subject to the same considerations as category (2). The relevance of considering both categories was that Gibbs CJ, Mason J and Aickin J took the view that the Authority's claim before them fell into both categories; as "a contractual indemnity' it was a "cause of action" (at 604) and it also "was a defence to Anshun's claim in the first action" (later at 604). In dealing with these two categories they said the indemnity claim "was so closely connected with the subject matter of [the first] action that it was to be expected that it would be relied upon as a defence to that claim and as a basis for recovery by the Authority from Anshun" (at 604).
Then, in the second last sentence of their reasons, they made it plain that the basis of their decision that the Authority could not bring the second proceeding was "that it was unreasonable for the Authority to refrain from raising its case of indemnity for disposition in the first action" (at 604).
The decision of Gibbs CJ and Mason and Aickin JJ in Anshun seems to me to be authority for the following propositions: 1, that Wigram VC's extended principle as stated in Henderson is accepted as good law by the High Court; 2, that that principle applies, inter alia, to category (3) cases, that is to a proceeding in which a party is asserting a cause of action which could have been raised, but was not, in a previous proceeding in which the same party was asserting a different cause of action based on substantially the same facts against the same party as the second proceeding is being brought; and 3, that the extended principle of Henderson will be applied to the second proceeding when 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 questions on the present ground of appeal therefore become whether the claim sought to be raised in the Supreme Court under the Contracts Review Act (a) could have been raised in the Federal Court proceedings and (b) raised matters so clearly part of the subject matter of the Federal Court proceedings that it was unreasonable on the part of the appellants not to have raised that claim in those proceedings.
Having stated question (b) in the way I have, I should make it clear that I do not attach critical importance to the particular words of the formula. Bryson J had said that any facts related to the causes of action pressed before Hill J "which might have put forward to grant relief under the Contracts Review Act and the very question of whether relief should be granted under the Act are points which in my finding properly belong to the subject of that litigation, which the plaintiffs
URJ RAHME v COMMONWEALTH BANK OF AUSTRALIA (Priestley JA) 5
exercising reasonable diligence certainly ought to have brought forward while conducting their litigation in the Federal Court."
The appellants, in their written and oral submissions in this court said the relevant question was:
"Was it unreasonable of the appellants to have refrained from raising the claims now made in the proceedings before the Federal Court?"
In the circumstances of the present case at least, it seems to me that the three different ways of putting the question raise substantially the same considerations.
The appellants' primary submission was that the matters pleaded and particularised in their Contracts Review Act claim in the Supreme Court were different from those raised in the Federal Court proceedings, any exceptions being minor and immaterial. This submission was examined in detail by Bryson J. At pp 14 and 15 of his reasons he listed the paragraphs in the appellant's Further Amended Statement of Claim in the Federal Court which set out at length the facts and different types of claim upon which the appellants relied. He referred also to the written submissions delivered to Hill J following the hearing and before he delivered judgment, as well as to the matters dealt with in the reasons for that judgment, as showing the breadth of what was in issue before Hill J. Then at pp 15 to 17 he considered what was involved in para 15 and para 16 (and the particulars given of those paragraphs) in the amended statement of claim in the Supreme Court proceedings. He stated the result of his comparison as follows:
"All the matters complained of in these particulars were also complained of in the proceedings before the Federal Court; particulars may well differ in some respects. The very numerous and detailed particulars in the Federal Court proceedings made it open to the plaintiffs to go into evidence on any matter such as that now alleged with respect to not disclosing the possible operation of the powers of sale, special disabilities of the plaintiffs, comparison in the bargaining positions, the availability of opportunities for negotiations and advice and the capacity of the plaintiffs to protect their interest having regard to their grasp of the English language or the language of the documents, the availability of advice to them and any explanations which were given. Indeed the evidence before me, most particularly the written submissions and the judgment of Hill J indicates that most or perhaps all of those matters in fact were the subject of evidence before his Honour."
"In my view all or practically all of the facts upon which reliance on the Contracts Review Act could be based were points upon which, according to the pleadings, the Federal Court of Australia was actually required by the parties to form an opinion and pronounce judgment, although it may be that the development of the proceedings was such that some of them were not explicitly addressed in the reasons for judgment. "
Having listened to the earnest efforts of the appellants' counsel to show why Bryson J was wrong in these conclusions, and having retraced his steps through the relevant materials, I cannot see that he made any mistake in his deliberations. Having redone the exercise independently, I have come to the same conclusions. It is for this reason I have not thought it necessary to repeat the detail of the process; there is no material difference between the way in which Bryson J has set out the matter and my own views.
There is no doubt that the Federal Court had jurisdiction to entertain a claim under the Contracts Review Act. Whether or not it had that jurisdiction before the cross-vesting legislation came into operation may be arguable, although it seems to me reasonably clear that the Federal Court was at that time able to deal with such a claim at the same time as dealing with claims for which it had explicit jurisdiction involving the same set of commercial circumstances. It is however unnecessary to answer this question definitively in this case because the cross-vesting legislation became operative on | July 1988 and the hearing before Hill J took place early in 1989. Even if there had been doubt about the jurisdiction of the Federal Court to entertain the Contracts Review Act claim before July 1988, after that date there was no doubt about the matter and an appropriate application to amend the proceedings to enable the Contract Review Act claim to be dealt with at the same time as the other claimed causes of action would have been granted as of course.
In the proceedings before Hm J, the whole of the dealings between the appellants and the Bank were the subject of extensive evidence by the relevant witnesses who were thoroughly examined. The documentation which had come into existence in the course of the transactions was before the court. Hill J in his reasons dealt with many factual issues.
The rules in Anshun and the extended principle in Henderson seem to me to be very appropriate for application in the present case. To allow the Contracts Review Act claim to go forward would unavoidably mean that much of the same ground would be gone over all over again. This process would involve waste on a large scale. It would open up the possibility of a second court reaching results in consistent with what had been decided at great labour and expense by another court of equal authority.
To add to this, a hearing on the Contracts Review Act claim would become extremely complicated. Many factual matters were decided between the appellants and the Bank in the Federal Court proceedings. As Dixon J said in Blair v Curran (1939) 62 CLR 464: "A judicial determination directly involving an issue of fact... disposes once for as of the issue, so that it cannot afterwards be raised between the same parties or their privies." (at 531) The hearing in the Supreme Court, if allowed to go forward, would involve an endless dredging through the previous proceedings to identify the issues of fact decided by Hill J which the parties would be estopped from relitigating.
In my opinion, Bryson J was right in his decision that the appellants were precluded from raising their Contracts Review Act claim in the Supreme Court proceedings.
The unconscionability claim. In my view the same position must be reached on this claim as that in regard to the Contracts Review Act claim. If there is any difference, the position is clearer in regard to this claim than the other. This is because it seems to me quite possible that virtually every material issue of fact involved in this claim was dealt with in one form or another by Hill J, so that the various issue estoppels resulting would, in their totality, require an answer to the claim without any room for further fact finding in the Supreme Court. I have not however done the lengthy analysis which would be necessary to see whether that possibility is in fact the case. It is more efficient in the present case simply to rely on the extended principle of Henderson and say that as that principle has been interpreted in Anshun it requires, for the reasons I have already given, that the appellants be precluded from raising the unconscionability claim in the Supreme Court proceedings.
URJ RAHME v COMMONWEALTH BANK OF AUSTRALIA (Hope AJA)
Meagher JA I agree with Priestley JA. Hope AJA I agree with Priestley JA.
5 Conclusion. In my opinion the appeal should be dismissed with costs.
Solicitors for Appellant: ISENBERG SPEDDING and PLAYER Counsel for Respondent: A R EMMETT QC / J E MARSHALL
RAHME
COMMONWEALTH BANK OF AUSTRALIA
(1981) 147 CLR 589
(1990) 23 FLR 1
(1981) 147 CLR 589
(1939) 62 CLR 464
Appeal dismissed. The respondent's costs were to be borne by the appellants.