Res Judicata
19 It is common ground that doctrine of res judicata applies to the Tribunal.
20 The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding. In the often quoted Henderson v Henderson (1843) 67 ER 313, Wigram VC said at 319:
"In trying this question I believe I state the rule of the Court correctly when I say that, 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, inadvertence, or even accident, omitted part of their case. The pleas 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."
21 For a party to establish that res judicata prevents litigation of a matter, the party must show.
· A final judgment;
· A competent tribunal;
· Identity of the parties; and
· Identity of subject matter.
Also see Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 412 per Gummow J.
22 To be a final judgment, a judgment must be final and not interlocutory - see Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285 at 297-8. It was submitted by counsel for Mr Schrader that s 191 permits a decision of the Tribunal to be varied or revoked and where a decision is revoked, there is no longer any decision. It was submitted that the effect of the 2004 decision was to 'clean the slate' of all prior decisions made by the Tribunal in regard to the allocation of unit entitlements. Hence, Mr Schrader was entitled to bring fresh proceedings seeking a determination on the reasonableness of the unit entitlements.
23 If one looks at the nature of the 2004 CTTT decision and its strict legal effect on the parties, it is my view that this hearing was one that finally determined the rights between the parties. Mr Schrader was given an opportunity to be heard and a decision was made with evidence provided by parties involved in the dispute. The final determination was that the allocation of unit entitlements between the parties prior to the 2003 proceedings should be maintained. In these circumstances, the 2004 decision is a final judgment - see Sanofi v Parke Davis Ltd (No 1) (1982) 149 CLR 147 at 152.
24 In order for res judicata to apply, the 2004 proceedings must be a decision of a competent tribunal acting within its jurisdiction. It was on this point that there was a significant departure between the parties. Counsel for Mr Schrader submitted that the 2004 revocation decision of the CTTT was made beyond the jurisdiction of the CTTT for a number of reasons. They are firstly, the proceedings were purported to be conducted under s 191 but the decision went beyond the procedural matters proscribed under s 191; secondly, because the original submission of Mr Salier was received late and was not considered by the tribunal in the original proceedings, that Mr Salier did not meet the standing requirement under s191(4); thirdly, that s191 proceedings may only be brought with the Registrar's approval under s191(2) and must be brought within a proscribed time; and finally, that s191(3) limits the matters to which the registrar may exercise his or her discretion and that the 2004 decision went outside these limitations.
25 On the first point, s 191(1) provides that the Tribunal may vary or revoke an order made by the Tribunal under Part 5 of the Act. The 2004 decision revoked the orders of the Tribunal made in 2003. The 2004 decision was made within the power given under s 191(1) to the Tribunal and was not made beyond the jurisdiction of the Tribunal. In regard to the third and fourth points, no record of the Registrar's decision was on file and no written submissions were received from the plaintiff on these points. I shall now consider the second point raised by the plaintiff.
26 The 2004 proceedings were conducted by the CTTT by way of a s 191 application brought by Mr Salier (not Mr Schrader). Section 191(1) provides that the Tribunal may, on application, make an order varying or revoking an order made by the Tribunal under this Part. It was the 2003 order of the CTTT that was sought to be varied or revoked. Section 191(4) permits defined applicants with standing to make a s 191 application. Specifically, s 191(4)(d) provides that such an application may be brought by any person who made a written submission on the application for the original order. This was the only basis on which Mr Salier could have had standing to bring the s 191 application.
27 In Administration of the Territory of Papua and New Guinea v Guba (1973) 130 CLR 353 at 453 Gibbs J said that res judicata:
"extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between the parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of the parties…"
28 The jurisdiction of the Tribunal to make an order varying or revoking an order under s 191(1) arises from statute where an individual with standing under s 191(4) brings the application. It is apparent that the Tribunal, in reaching the original 2003 decision, had not received Mr Salier's submissions in time and that the submissions were not before the Tribunal when the decision was made. Mr Salier did not have standing to bring the application under s 191(4).
29 The jurisdiction of the Tribunal can, however, also be derived from the submissions of the parties. As I have already mentioned, is was conceded by Counsel for Mr Schrader that Mr Schrader took the opportunity at the 2004 proceedings to present evidence and that on that occasion he was afforded a hearing on the merits. Mr Schrader submitted to the jurisdiction. Where a party submits to the jurisdiction of a court or tribunal and is provided the opportunity to present their case, as occurred here, it should not be permitted for them at a later date, to complain of the jurisdiction of the tribunal because they did not get the outcome they sought. It is my view that the 2004 decision of the Tribunal was a decision of a competent tribunal.
30 The identity of the parties in the 2003, 2004, and 2007 disputes are, in effect, the same. Although the names which appear on the record may have varied, the people who had standing to take part in the proceedings, or submitted to the jurisdiction of the Tribunal, remained the same. These parties being Mr Schrader, Mr Salier, and the owners of strata plan No 12449.
31 The subject matter in question at all three of the Tribunal hearings was the same. At each instance before the Tribunal the subject matter of dispute was whether the allocation of unit entitlements at the time of registration of the plan was unfair.
32 The four elements of res judicata were present when the Tribunal refused, in 2007, to hear the application of Mr Schrader. The Tribunal Member was entitled to make the decision that she did. There is no error of law.
33 Even if the doctrine of res judicata did not apply to the 2007 decision, the Tribunal would have had no jurisdiction to hear the application of Mr Schrader. This is because s 191(7) provides that an order made under s 191 may not be varied or revoked by another order made under s 191. The sole avenue of review under s 191 was spent by the 2004 application. Section 191(7) precludes a second order being made.