The applicable principles
33 The law favours finality, and is resistant to the re-litigation of disputes. This resistance finds many forms. The doctrine of res judicata precludes the re-litigation of causes of action. Issue estoppel precludes the re-litigation of an ultimate issue of fact or law which was necessarily resolved as a step in reaching a determination made in an earlier proceeding. The principles essayed in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 preclude the litigation of an issue that was so connected with the subject matter of an earlier proceeding that it was unreasonable not to bring the issue forward in the earlier proceeding. Even where these principles are not strictly applicable, seeking to litigate an issue that has already been disposed of by earlier proceedings may constitute an abuse of process, as with Reichel v Magrath (1889) 14 App Cas 665. The object of finality is reflected in rules of court which require that leave be sought before adducing evidence on appeal. The object of finality underlies the constraints on raising new issues on appeal, which ensure that the trial of a proceeding is not some "preliminary skirmish": Coulton v Holcombe (1986) 162 CLR 1 at 7. The object of finality underlies the principle that ordinarily material should not without leave be sent to a court after a hearing has been completed and judgment reserved: Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127; 285 FCR 159 at [85]. And the object of finality gives rise to the constraints on the re-litigation of interlocutory applications that were referred to by McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 (Brimaud).
34 Allied to the policy of finality are the policy considerations underlying statutory limitation periods that were referred to by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551-552. Those policy considerations include closure, which was referred to by Lord Wilberforce in the Ampthill Peerage Case [1977] AC 547 at 569. Those policy considerations manifest themselves in limitation Acts in different ways, depending on the cause of action. In defamation proceedings in Australia, the limitation periods are short.
35 The order made dismissing the applicant's first application to extend the limitation period was not a final judgment because it did not have the legal effect of determining any cause of action on the merits. Consistently with authority, it was not argued that any res judicata or issue estoppel attached to the dismissal of the first application: see D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 599 (Hayne JA). Therefore, it was not in dispute that the order made on 3 November 2023 dismissing the first application was an interlocutory order.
36 However, the fact that the order was interlocutory in form does not mean that it did not have some attributes of finality, which are relevant to considering the respondents' claim that the second application is an abuse of process. In this context, the reasons for judgment of McLelland J in Brimaud refer to the relevant principles. McLelland J stated at 46 in relation to an interlocutory order of a substantive nature made after a contested hearing -
The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see for example Wilkshire & Coffey v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest "until further order" (as to which see for example Warringah Shire Council v Industrial Acceptance Corp (unreported, SC(NSW), McLelland J, 22 November 1979).
In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application: see Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164-5; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447-8; Chanel Ltd v F W Woolworth & Co [1981] 1 All ER 745; [1981] 1 WLR 485; Adam P Brown Male Fashions v Philip Morris (1981) 148 CLR 170 at 177-8; 35 ALR 625 at 629-30; Butt v Butt [1987] 1 WLR 1351 at 1353; Gordano Building Contractors Ltd v Burgess [1988] 1 WLR 890 at 894.
37 McLelland J cited the following passage from the reasons of Buckley LJ in Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 WLR 485 at 492-493 to illustrate the point -
The defendants are seeking a rehearing on evidence which, or much of which, so far as one can tell, they could have adduced on the earlier occasion if they had sought an adequate adjournment, which they would probably have obtained. Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter. The fact that he capitulated at the first encounter cannot improve a party's position.
38 McLelland J also cited the following passage from the reasons of Gibbs CJ, Aickin, Wilson and Brennan JJ in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 178 -
A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust … Of course the changed circumstances must be established by evidence …
39 The interlocutory process in issue in Adam P Brown Male Fashions was an undertaking given to a court in order to resolve an application for an interlocutory injunction, and by reference to the above principle, the High Court held that there was power to release a party from such an undertaking.
40 The principles essayed by McLelland J in Brimaud have been cited and applied in this Court, including by the Full Court: Darling Harbourside (Sydney) Pty Ltd v Sanirise Pty Ltd (unreported, Beaumont, Carr and Sackville JJ, 17 May 1996); Deloitte Touche Tohmatsu (A Firm) v Sadie Ville Pty Ltd [2020] FCAFC 23; 144 ACSR 1 at [275] (Markovic and O'Callaghan JJ). Brimaud has also been cited and applied many times at first instance: Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2001] FCA 1603 at [11]-[12] (Hely J); Pivotel Satellite Pty Ltd v Optus Mobile Pty Ltd [2010] FCA 121 at [26] (Jagot J); Keynes v Rural Directions Pty Ltd (No 4) [2011] FCA 304 at [32] (Besanko J); Vivo International Pty Ltd v Tivo Inc [2012] FCA 1167 at [15] (Nicholas J); Lahood v Bank of Western Australia (No 2) [2013] FCA 150 at [14]-[15] (Perram J); Dallas Buyers Club LLC v iiNet Ltd (No 5) [2015] FCA 1437; 115 IPR 544 at [14]-[15] (Perram J); Waters v Commonwealth of Australia (Australian Taxation Office) [2017] FCA 312 at [52] (Griffiths J); Fewin Pty Ltd v Prentice (No 2) [2019] FCA 53 at [22] (Markovic J).
41 Re-litigation of applications to extend limitation periods has been considered at intermediate appellate level by the Victorian Court of Appeal in D A Christie Pty Ltd v Baker, to which I referred earlier, and by the New South Wales Court of Appeal in Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139. Those decisions have been thought to represent different approaches to the circumstances in which a second application to extend a limitation period will be permitted. In D A Christie Pty Ltd v Baker, Brooking JA at 597-598 held that an applicant who did not come fully prepared with proper materials in the first instance, and who offered no explanation of his failure to put forward material that was later provided, should not be allowed to vex the respondent with a second application. These features of the case also supported the reasoning of Hayne JA at 604 -
The applicant in this matter, Baker, filed further material with a gap in the material that had been identified by the judge intended to deal with a gap in the material that had been identified in his reasons for judgment dismissing the first application. Nevertheless, I am of the view that the second application was properly classed as an abuse of process. The additional material which it was sought to put forward was all material which was available to Baker at the time of the first application. No explanation was proffered for why that material was not put forward at the time of the first application and for present purposes I assume that it was omitted through oversight or neglect.
42 At 605, Hayne JA applied the following principle in holding that the second application was an abuse of process -
So far as presently relevant that limitation is to be imposed by an application of principles concerned with abuse of process and in at least most cases may be resolved by concluding that a second application is an abuse unless there is proof of fraud or it is sought to adduce fresh evidence, "fresh", that is, in the sense in which that expression is used in connection with the admission of evidence on appeals.
43 Importantly, Hayne JA added at 605-606 -
Moreover, given the breadth of possible application of the principles of abuse of process, I do not intend in what I say to attempt some definition of the circumstances properly to be regarded as constituting an abuse of process or to say that it is only upon proof of fraud or the adducing of fresh evidence that a second application of the kind now under consideration can be said not to amount to an abuse. The hazards of attempting some general definition of such broad and discretionary principles as are encompassed in the simple expression "abuse of process" are well known and need not be restated.
44 Charles JA dissented, holding at 611 -
… it is not possible for this court to adopt a rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application, on the ground of abuse of process, simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence. Some other factor must, in my view, be present before an abuse of process is established, although, since the respondent is being faced a second time with an application for extension of time to bring proceedings, the potential for the second application to amount to an abuse is readily apparent.
45 In Nominal Defendant v Manning, the majority, comprising Heydon JA and Foster A-JA, with Mason P dissenting, favoured the approach of Charles JA over the approach of Brooking JA and Hayne JA in D A Christie Pty Ltd v Baker. Importantly though, Heydon JA stated at [72] -
Nothing in the above reasoning rejecting the Nominal Defendant's submission is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in a second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate failure to tender evidence is extremely risky. The Nominal Defendant's proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker (at 602-603) - the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs - and others - damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily - are evils which each court in its individual discretion will rightly strain to avoid.
46 In previous decisions of this Court, it has not been necessary to resolve the ostensibly divergent views in D A Christie Pty Ltd v Baker and Nominal Defendant v Manning. For my part, I respectfully consider the difference between them may be more apparent than real, given that Hayne JA in the passage that I have set out at [43] above made plain that his Honour was not attempting some definition of the circumstances that might be regarded as an abuse of process. Goldberg J found it unnecessary to resolve the difference in P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413; 255 ALR 466 (P Dawson Nominees), instead holding at [49] that one or more of the following factors should be present in order for the applicants to re-litigate the interlocutory matter that was before his Honour -
(a) there is new material or new evidence which was not available, or reasonably available, to them at the time the orders were made on earlier occasions;
(b) there has been a material change in the circumstances since those orders were made;
(c) there are exceptional circumstances which warrant re-consideration of the matter; and
(d) as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter.
47 In Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 2) [2015] FCA 272 (ACCC v Adata), Reeves J at [12]-[37] gave careful consideration to the judgments in D A Christie Pty Ltd v Baker and Nominal Defendant v Manning. Like Goldberg J in P Dawson Nominees, Reeves J did not attempt to resolve the apparent conflict between the views expressed by the judges in those cases. Instead, his Honour at [44] applied the principles stated by Goldberg J in P Dawson Nominees, noting that other judges have done likewise, citing Tropical Reef Shipyard Pty Ltd v QBE Insurance (Australia) Ltd (No 2) [2010] FCA 1093; 274 ALR 626 (Tropical Reef) (Finkelstein J), N A Retail Solutions Pty Ltd v St George Bank Ltd [2010] FCA 290; 267 ALR 599 (Cowdroy J), and Australian Equity Investors, An Arizona Limited Partnership v Colliers International (NSW) Pty Ltd (No 3) [2011] FCA 100 (Cowdroy J). To those cases may be added Pivotel Satellite Pty Ltd v Optus Mobile Pty Ltd at [26] (Jagot J), Food Channel Network Pty Ltd v Television Food Network, GP [2010] FCA 372 at [16] (Jagot J), DB Marketing Solutions Pty Ltd v Cause (No 2) [2014] FCA 1429 at [11] (Logan J), Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 109 (Bernard v Minister) at [5]-[6] (Jackson J), and AEI Insurance Group Pty Ltd v Martin [2023] FCA 914 at [22] (Bromwich J).
48 Both D A Christie Pty Ltd v Baker and Nominal Defendant v Manning were decided before the statutory recognition in Victoria and New South Wales in their Civil Procedure Acts of the policies underlying modern principles of case management. They were also decided some years before the High Court's decision in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 (Aon). In relation to Nominal Defendant v Manning, in Fletcher v Besser [2010] NSWCA 30 at [17] Sackville A-JA, with whom Allsop P and McColl JA agreed, stated -
… without casting doubt on the correctness of Manning at the time it was decided, … the Civil Procedure Act may need to be taken into account in determining whether a second application for an extension of the limitation period should be permitted where the application is based on evidence that was available at the time of the unsuccessful first application.
49 See also Liu v The Age Company Ltd [2016] NSWCA 115; 92 NSWLR 679 at [12] (Beazley P) and [292] (Ward JA).
50 In this Court, parties must conduct proceedings in a way that is consistent with the overarching purpose, which is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively, and efficiently as possible: Federal Court of Australia Act 1976 (Cth), ss 37M(1), 37N(1). These principles are an acknowledgment of the public interest in the just resolution of proceedings having regard to the proper and efficient use of court resources, and are a recognition of the strain on litigants that court proceedings may impose: see Aon at [23]-[27] (French CJ) and [97]-[101] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). The principles inform the obligations of parties in the presentation of their cases to the Court, and are relevant to the question whether a second application should be entertained, as Reeves J recognised in ACCC v Adata at [44], and as Jackson J recognised in Bernard v Minister at [6].
51 In this application, I will adopt the guidance of Goldberg J in P Dawson Nominees at [49]. In doing so, I do not understand there to be a bright line distinction between the four circumstances identified by Goldberg J at [49]. For instance, at [39] Goldberg J considered that exceptional circumstances might exist where new facts come into existence which might render the enforcement of an interlocutory order unjust, citing the majority of the High Court in Adam P Brown Male Fashions at 178. The reference by Goldberg J in 49 to a material change in circumstances takes its colour from his Honour's earlier discussion at [39]. One would think that exceptional circumstances involving new facts that render the enforcement of an order unjust would also amount to concluding that "the justice of the matter requires that the applicants be allowed to revisit the matter". Further, the guidance in P Dawson Nominees is not a code, but is to be informed by other guidance, such as that of McLelland J in Brimaud, with which it is harmonious.