Abuse of process/res judicata
64The principles of res judicata or issue estoppel apply where there is an attempt to re-litigate issues that have previously been determined in proceedings. Alternatively, an attempt to litigate issues which could and should have been litigated in previous proceedings will give rise to the Anshun estoppel: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
65Dixon J's analysis of these two principles in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 remains a guiding precedent. His Honour says at 531-532:
"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order."
66The defendants acknowledge that the previous proceedings did not contain claims for damages. The current pleadings seek criminal sanctions, an apology and financial compensation in the sum of $1 million.
67It is clear that the re-litigation of the same cause of action in fresh proceedings is likely to involve the same issues, giving rise to res judicata and issue estoppel.
68The defendants submitted that the plaintiff's pleadings are an abuse of process, in that the pleadings seek to re-agitate some issues that already have been determined by the Public Guardian, the ADT, the ADT Appeals Panel and the Court of Appeal.
69On 12 January 2011, the Guardianship Tribunal appointed the Public Guardian as the plaintiff's father's guardian. On 10 February 2011, the Public Guardian made the decision that the plaintiff's father live with his daughter. On 1 April 2011, the Public Guardian determined that his father continue to live with his daughter.
70On 18 July 2011, the ADT affirmed the decision of the Public Guardian that the plaintiff's father continue to live with the plaintiff's sister: ABJ v Public Guardian [2011] NSWADT 172. The ADT stated that it did not have the basis to dispute the view of medical staff that the plaintiff was not able to meet the care of needs of his father at home, that the plaintiff did not follow professional medical advice with regards to the care of his father and that it cannot be satisfied that it would be in his father's best interest to reside with him. The plaintiff tendered a statutory declaration signed by his father which indicated that he wished to live with the plaintiff. The ADT did not accept that evidence because the words of the statutory declaration were not read to the plaintiff's father.
71On 2 February 2012, the ADT Appeal Panel also affirmed the decision of the Public Guardian that the plaintiff's father should live with the plaintiff's sister: ABJ v Public Guardian (GD) [2012] NSWADTAP 3. The plaintiff claimed that the ADT failed to comply with s 4 of the Guardianship Tribunal Act and in particular, stated that the ADT failed to take into account his father's views when making its decision. According to the ADT Appeal Panel, the ADT's decision did not disclose any error of law.
72The plaintiff also sought leave for the appeal to extend to the merits of the ADT's decision where he set out 13 matters on which he relied upon. The ADT Appeal Panel stated at [9] that:
"Each of those matters is either a disagreement with a factual finding made by the Tribunal or an effort to adduce further evidence which was not tendered at the hearing at first instance."
73The ADT Appeal Panel held that the plaintiff had not satisfied it that the ADT's findings justified revisiting the decision.
74On 28 May 2012, the Court of Appeal dismissed the appeal brought by the plaintiff pursuant to s 119 of the Administrative Decisions Tribunal Act 1997 (NSW): Tanious v Public Guardian [2012] NSWCA 165. In dismissing the appeal, Macfarlan JA stated at [5] that:
"Many of the grounds, as well as much of what was submitted by Mr Tanious in response to the Notice of Motion, relate not to the decision the subject of the appeal to the ADT (and in turn the subject of the ADT's decision of 2 February 2012), but to the appropriateness of the guardianship order in respect of Mr Tanious' father, the conduct of the Public Guardian in giving effect to that order and, finally, the psychiatric assessment of Mr Tanious' father."
75On 3 October 2012, the Court of Appeal (Meagher JA, Sackville and Tobias AJJA) dismissed the plaintiff's application for the review of Macfarlan JA's decision of 28 May 2012: Tanious v The Public Guardian [2012] NSWCA 335. In support of his application for the review of Macfarlan JA's decision, the plaintiff:
(1)Alleged that the Public Guardian's delegate was negligent in when making the decision to place Mr Tanious' father in the care of his daughter rather than in the care of Mr Tanious.
(2)Alleged that the Public Guardian failed to give primacy to the best interest of Mr Tanious' father in accordance with s 4 of the Guardianship Act.
(3)Raised particular complaint with respect to the failure of the Public Guardian's delegate to have Mr Tanious' father to be examined by the an Arabic-speaking psychiatrist of Mr Tanious' choice.
76The Court noted that the correctness of the guardianship order made on 12 January 2011 by the Guardianship Tribunal was academic given that Mr Fanous (the father's priest) had been appointed as the guardian and that the plaintiff had no complaint in respect of the Mr Fanous' appointment.
77It is fair to say that while the plaintiff's father was alive, the plaintiff challenged the orders of the Guardianship Tribunal in relation to who should be his father's guardian, his father's medical treatment, where the plaintiff's father should reside and the wrong evidence given at the Tribunal hearings.
78It is my view that the current proceedings are yet another attempt by the plaintiff to re-litigate the same issues which have already been determined in previous proceedings.
79The result is that these proceedings should be dismissed for a number of reasons, namely, it is not properly pleaded, it does not disclose a reasonable cause of action and they are an abuse of process of the Court.
80In the exercise of my discretion, I would not grant the plaintiff a further opportunity to replead his amended statement of claim as the deficiencies that have been identified cannot be cured by amendment.
81Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs of the proceedings including the costs of the defendants' notice of motion filed 2 August 2013.