NETTLE AND EDELMAN JJ. Many of the facts of this matter sufficiently appear from the judgment of Kiefel CJ, Bell and Keane JJ and need not be repeated. The issue is whether, in circumstances where the previous trustee of the Argot Trust had discontinued its involvement as plaintiff in proceedings in the Supreme Court of New South Wales ("the Supreme Court proceedings"), it was an abuse of process for the respondent, Scott Francis Tyne, having been substituted for the previous trustee, and thus in his capacity as trustee of the Argot Trust ("the Trustee"), then to institute fresh proceedings in the Federal Court of Australia ("the Federal Court proceedings") alleging the same or substantially the same claims as the previous trustee had alleged in the Supreme Court proceedings but which were not determined before the previous trustee discontinued its participation in those proceedings, without any conditions on the discontinuance. More specifically, should the Trustee's action in commencing the Federal Court proceedings following the previous trustee's discontinuance of its involvement in the Supreme Court proceedings be seen as "unjustifiably oppressive" to the appellant, UBS AG ("UBS"), or as "bring[ing] the administration of justice into disrepute"? Kiefel CJ, Bell and Keane JJ conclude that it should be and Gageler J, writing separately, reaches the same result. With respect, we disagree.
Basis and effect of the previous trustee's discontinuance
Determination of whether the Trustee's institution of the Federal Court proceedings should be seen as unjustifiably oppressive to UBS or as bringing the administration of justice into disrepute invites attention, first, to the basis on which the previous trustee discontinued its involvement in the Supreme Court proceedings and the legal effect of its discontinuance.
In substance, the previous trustee discontinued its involvement in the Supreme Court proceedings, without objection from UBS, with leave of the Court pursuant to r 12.1 of the Uniform Civil Procedure Rules 2005 (NSW). Rule 12.1 relevantly provides for the discontinuance of civil proceedings in the Supreme Court of New South Wales as follows:
"Discontinuance of proceedings
(1) The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant:
(a) with the consent of each other active party in the proceedings, or
(b) with the leave of the court.
(2) A notice of discontinuance:
(a) must bear a certificate by the plaintiff, or by his or her solicitor, to the effect that the plaintiff does not represent any other person, and
(b) except where it is filed with the leave of the court, must be accompanied by a notice from each party whose consent is required by subrule (1) to the effect that the party consents to the proceedings being discontinued in accordance with the notice of discontinuance.
(3) If any such consent is given on terms, those terms are to be incorporated in the notice of consent." (emphasis added)
Rule 12.3 provides that the effect of discontinuance is as follows:
"Effect of discontinuance
(1) A discontinuance of proceedings with respect to a plaintiff's claim for relief does not prevent the plaintiff from claiming the same relief in fresh proceedings.
(2) Subrule (1) is subject to the terms of any consent to the discontinuance or of any leave to discontinue." (emphasis added)
Rule 12.4 provides that where a plaintiff discontinues proceedings and commences fresh proceedings for the same or substantially the same cause of action as that on which the discontinued proceedings were commenced, the fresh proceedings may be stayed to secure the costs of the discontinued proceedings:
"Stay of further proceedings to secure costs of discontinued proceedings
If:
(a) as a consequence of the discontinuance of proceedings, a plaintiff is liable to pay the costs of another party in relation to those proceedings, and
(b) before payment of the costs, the plaintiff commences further proceedings against that other party on the same or substantially the same cause of action as that on which the former proceedings were commenced,
the court may stay the further proceedings until those costs are paid and may make such consequential orders as it thinks fit."
There are three aspects of those rules that warrant specific mention. First, r 12.1 expressly provides that a proceeding may be discontinued with consent on terms, and r 12.3 expressly provides that, if consent is given on terms, the discontinuance is subject to those terms. As has been noticed, in this case the Supreme Court proceedings were discontinued, without objection, without the imposition of terms.
Secondly, r 12.3 expressly provides that a discontinuance of proceedings with respect to a plaintiff's claim does not prevent the plaintiff from claiming the same relief in fresh proceedings (subject, of course, to any terms of consent to the contrary). Consequently, as has long been recognised, an order for discontinuance does not amount to a release of claims. As the Court of Appeal of England and Wales recently observed in Spicer v Tuli, with respect to the comparable provisions of Pt 38 of the Civil Procedure Rules 1998 (UK):
"If an action is discontinued rather than dismissed, it is clear that a second action may be brought even if it arises out of the same facts as the discontinued action".
Thirdly, r 12.4 expressly contemplates the possibility of a plaintiff who has discontinued proceedings commencing further proceedings for the same or substantially the same cause of action as that on which the discontinued proceedings were commenced, and the rule provides for the grant of a stay only until and unless there have been paid any outstanding costs orders in relation to the discontinued proceedings.
Here, UBS did not object to the previous trustee discontinuing its involvement in the Supreme Court proceedings and did not seek any condition on the grant of leave to discontinue or the imposition of any terms to the effect that the previous trustee or any subsequent trustee undertake or agree not to bring fresh proceedings for the same or substantially the same claims.
In those circumstances, why should the Trustee's subsequent commencement of the Federal Court proceedings be seen as unjustifiably oppressive to UBS or as bringing the administration of justice into disrepute?
UBS not twice or otherwise unduly vexed
Counsel for UBS invoked the primary judge's reasoning that, the previous trustee having discontinued its claims in the Supreme Court proceedings, the Trustee's conduct in later bringing the Federal Court proceedings was an abuse of process because the Trustee's claims raised substantial complex questions of fact and law with which UBS had been vexed before.
That is not the case. UBS was not vexed with those questions of fact and law in the Supreme Court proceedings. To the contrary, UBS obtained a temporary stay of the proceedings almost immediately after their commencement, which enured until after the determination of proceedings in the High Court of the Republic of Singapore between UBS as plaintiff and Mr Tyne in his personal capacity and Telesto Investments Limited ("Telesto") as defendants ("the Singapore proceedings"), and thence a permanent stay of the Supreme Court proceedings on the basis of what had been decided in the Singapore proceedings. Nor was UBS vexed with such questions of fact and law in the Singapore proceedings. The Trustee was not a party to the Singapore proceedings and, although Telesto was a party, it played no part in the proceedings. Consequently, as counsel for UBS acknowledged in this Court, the Federal Court proceedings would be the first occasion on which UBS would have to deal with the Trustee's claims.
Counsel for UBS contended that the fact that there has been no prior adjudication of the Trustee's claims, including its claims under the federal and State legislation corresponding to the Trade Practices Act 1974 (Cth) ("the TPA"), was immaterial because, as was held by a majority of this Court in Walton v Gardiner and a majority of this Court in Batistatos v Roads and Traffic Authority (NSW), a proceeding can be stayed as an abuse of process despite the claim therein not having been previously adjudicated. But, as will be elucidated later in these reasons, Walton was a case where the fresh proceedings were stayed solely because they were substantially the same as earlier proceedings which had been stayed on the basis of "appalling" and "inexcusable" delay productive of significant prejudice to the defendants. Similarly, Batistatos was a case which involved a 29 year delay resulting in a practical inability to reach a decision based on any real understanding of the facts, and a practical impossibility of giving the defendants any real opportunity to participate in a hearing, to contest the facts or, if it should be right to do so, to admit liability on an informed basis. It was solely because of the almost three decade lapse of time that the majority concluded that a fair trial was not possible and stayed the proceedings as an abuse of process. That is not this case. Here, the delay was relatively insignificant and there was no suggestion that UBS would be compromised by delay in its defence of the Trustee's claims.
No material delay, additional costs or inconvenience
Counsel for UBS next embraced Dowsett J's dissenting observation in the Full Court of the Federal Court that:
"the manifest unfairness to UBS lies in the delay of the final resolution of the matter for a period of, probably, three or more years, the inevitable additional costs which have been, or will be incurred and the inconvenience of having to deal with the matter again, after lengthy litigation." (emphasis added)
That is not correct either. The previous trustee's conduct in discontinuing its involvement in the Supreme Court proceedings and the Trustee's later institution of the Federal Court proceedings did not result in a delay of three or more years. The Supreme Court proceedings were instituted on 2 November 2010. On 21 February 2011, UBS obtained from the Singapore High Court an anti-suit injunction restraining Telesto, Mr Tyne in his personal capacity and the previous trustee from prosecuting the Supreme Court proceedings, and thereafter UBS successfully resisted an appeal against the grant of the anti-suit injunction and, later, an application for leave to appeal the orders dismissing the appeal. Then, before any further step was or could be taken in the Supreme Court proceedings, UBS applied by notice of motion dated 24 October 2011 for a permanent stay of the Supreme Court proceedings on four grounds: the continued prosecution of the proceedings would be in defiance of the anti-suit injunction granted by the Singapore High Court; an issue estoppel arose as a result of the forum conveniens judgment awarded in favour of UBS in the Singapore proceedings; it was an abuse of process to seek to relitigate in the Supreme Court proceedings the forum non conveniens issues which had already been determined in Singapore; and the Supreme Court proceedings would be vexatious and oppressive having regard to the controversy as a whole. On 7 February 2012, Ward J rejected the application for a permanent stay but granted a temporary stay of the proceedings pending the outcome of UBS' claim in the Singapore proceedings. On 6 March 2012, the previous trustee and Mr Tyne in his personal capacity discontinued their participation in the Supreme Court proceedings, with the result that Telesto became the sole remaining plaintiff in the proceedings. Thereafter, the Singapore proceedings continued undefended until, on 27 July 2012, ex tempore final judgment was delivered in favour of UBS.
Soon after, by notice of motion dated 6 September 2012, UBS applied for a permanent stay or dismissal of the Supreme Court proceedings on grounds that Telesto's claims were barred by cause of action estoppel, issue estoppel or Anshun estoppel or, alternatively, as an abuse of process. Telesto replied with a notice of motion dated 10 September 2012 for an order that the temporary stay granted by Ward J be lifted. On 9 May 2013, Sackar J gave judgment in which his Honour held that Telesto's claims were barred either by cause of action estoppel or issue estoppel, but that, if that had not been the case, Telesto's claims would not have been barred by Anshun estoppel or as an abuse of process because there were sound forensic reasons for Telesto to choose to conduct its claims in the Supreme Court proceedings. Had Telesto been permitted to conduct its claims in the Supreme Court proceedings, it would have had a significant juridical advantage by reason of ss 52 and 51A of the TPA and the various remedies available thereunder. In Singapore, it would not. Only eight months later, on 13 January 2014, the Trustee commenced the Federal Court proceedings.
Of course, in one sense the final resolution of the Trustee's claims was delayed by "three or more years". But that was not caused by Telesto or the previous trustee or the Trustee. A loss of approximately two and a half years was the result of UBS preventing the claims being heard and determined in the Supreme Court proceedings. Nothing could be done in the Supreme Court proceedings as long as the temporary stay enured or, therefore, until Sackar J gave judgment on UBS' permanent stay application on 9 May 2013. The maximum delay caused by the previous trustee's discontinuance of its participation in the Supreme Court proceedings was the eight months that separated the handing down of Sackar J's judgment on 9 May 2013 and the institution of the Federal Court proceedings on 13 January 2014. Nor would the Federal Court proceedings require UBS to incur "inevitable additional costs ... and the inconvenience of having to deal with the matter again". Such was UBS' success in staying the Supreme Court proceedings, in effect in limine, that even now UBS has never had to face either Telesto's or the Trustee's claims under the TPA.
No change of position in reliance on discontinuance
Counsel for UBS submitted, albeit only faintly, that, if the previous trustee had not first discontinued its participation in the Supreme Court proceedings, UBS might not have made an application for a stay of the proceedings. Thus, it was contended, one consequence of the previous trustee's discontinuance of its participation in the Supreme Court proceedings was that UBS incurred the substantial costs of the permanent stay application which UBS may not otherwise have incurred.
Those submissions are unconvincing. There is no evidence that UBS would not have persisted with its stay application if the previous trustee had not discontinued its involvement in the Supreme Court proceedings, and, objectively, there is every reason to suppose that UBS would have persisted - arguing, just as it later argued before the primary judge in the Federal Court proceedings, that the previous trustee was as much barred as Telesto by res judicata, issue estoppel and Anshun estoppel, or by the doctrine of abuse of process, as a result of the Singapore proceedings. Further, even if it be assumed for the sake of argument that UBS might not have sought a permanent stay as against Telesto (and, to repeat, there is no reason to make that assumption), UBS has not thereby been prejudiced. As the majority of the Full Court of the Federal Court rightly observed, as a consequence of UBS' stay application, UBS has the benefit of the permanent stay as against Telesto and it is in no worse position as against the Trustee than it would have been had the previous trustee persisted in its claim in the Supreme Court proceedings.
Right-thinking person would not regard Federal Court proceedings as abuse of process
Counsel for UBS invoked Dowsett J's dissenting reasoning that the Federal Court proceedings should be regarded as an abuse of process because a "right-thinking person" would think them to be so. According to Dowsett J:
"The right-thinking person would be aware that some or all of these considerations might not apply in a particular case, given the circumstances of that case. However, in general, where previous proceedings have been discontinued, and similar proceedings subsequently commenced, the right-thinking person would infer that there had been a loss of time, an increase in costs, some degree of repetition of process and undue vexation to the other party. Such a person would likely perceive that if the administration of justice allows such conduct, without any explanation, it is inefficient, careless about the incurrence of cost by the parties, and profligate in the application of public moneys.
...
[I]f the [previous trustee] considered that it had a good claim, and did not intend to abandon it, then it should have taken it to judgment in [the Supreme Court] proceedings. There is no suggestion that anything happened unexpectedly thereafter, leading the [previous trustee] to change its mind about its claim, or its intention to prosecute it. I infer that Mr Tyne identified some forensic advantage to himself and/or the [previous trustee] in discontinuing the Supreme Court proceedings. The effect was to delay the resolution of the dispute between the [previous trustee] and UBS by a significant period of time, to increase the costs incurred by UBS in resolving the differences arising out of the relevant transactions and otherwise to vex UBS. To allow the [Trustee's] current proceedings to remain on foot is, in the circumstances, to inflict manifest unfairness upon UBS. Such unfairness is, itself, likely to bring the administration of justice into disrepute, as would the waste of public resources inevitably associated with the duplication of proceedings. On appeal, Mr Tyne invited the Court to speculate about the reason for the discontinuance by the [previous trustee] of the Supreme Court proceedings. I see no reason for going beyond such evidence as is before this Court."
With respect, that is not convincing either. Whether or not a "right‑thinking person" would question the administration of justice if it permitted a party to cause loss of time, increased costs, repetition of process and undue vexation of another party, neither the previous trustee nor the Trustee has been guilty of any of those infractions.
Compared to the loss of time of approximately two and a half years caused by UBS' applications for stays of the Supreme Court proceedings, the loss of the further eight months caused by the previous trustee's discontinuance is effectively de minimis, particularly given that there is no suggestion that the eight months has in any respect compromised UBS' ability to defend the Trustee's claims. The only "increase in costs" that counsel for UBS was able precisely to identify was the costs of the permanent stay application before Sackar J. But those costs were not imposed on UBS by the previous trustee or the Trustee or, for that matter, by Telesto. UBS voluntarily incurred them in its very considerable efforts to avoid facing Telesto's claims. Nor has there been any material repetition of process. As has been observed, the Supreme Court proceedings were shut down in limine as a result of UBS' application for a stay, with the consequence that UBS has until now not even had to plead to Telesto's or the Trustee's claims. Further, as has been noticed, UBS has not been twice or otherwise unduly vexed. Until now, it has successfully avoided having to face Telesto's claims, including those under the TPA, and the Trustee's claims, by the device of procuring a permanent stay of proceedings in one of the only jurisdictions in which those claims might effectively have been prosecuted.
Contrary to Dowsett J's reasoning and the submissions of counsel for UBS, it is not the case either that there is no explanation for why the previous trustee discontinued its involvement in the Supreme Court proceedings or that the Full Court of the Federal Court was left "to speculate" as to the reasons for its doing so. The reasons were set down in an affidavit affirmed by Mr Tyne in support of the Trustee's opposition to UBS' application for a stay of the Federal Court proceedings, which was read and received, apparently unchallenged and without objection. They included that Telesto's claims were considered to be worth more in dollar terms than the previous trustee's claims, with the result that, if Telesto had succeeded in its claims in the Supreme Court proceedings, it would have had sufficient assets to meet its obligations to UBS and that that would have avoided the need for the previous trustee to pursue its claims. Mr Tyne also considered that the previous trustee's claims would have been more burdensome to establish than Telesto's claims, as the former required detailed examination of more than 1000 pages of account statements which was unnecessary in the Telesto suit. Further, as Mr Tyne deposed, Telesto and the previous trustee were in difficult financial circumstances, and prosecution of the previous trustee's claims would have been more time consuming, and so, more expensive, than prosecution of Telesto's claims alone. And critically, Mr Tyne deposed that he expected that Sackar J would not permanently stay Telesto's claims because no other Australian judge had previously declined jurisdiction in "a TPA style of claim" in the absence of an exclusive foreign jurisdiction clause, and, having researched the law, Mr Tyne believed that a non-exclusive jurisdiction clause of the kind which applied in this case would not be regarded as sufficient reason to decline jurisdiction.
In short, the previous trustee, being short of funds and with a reasonable expectation that Telesto's claims (including under the TPA) would be allowed to proceed to judgment, resolved to discontinue its participation in the Supreme Court proceedings and wait and see whether Telesto's claims would be allowed to proceed to judgment in those proceedings. If they were allowed to proceed, the previous trustee's claims could be abandoned, and if they were not allowed to proceed, there would be good reason for the Trustee to begin again. A "right‑thinking person" would not look askance at such a decision. She or he would think it to be common sense.
Discontinuance not inconsistent with s 37M of Federal Court of Australia Act 1976 (Cth)
Counsel for UBS also made much of the importance of s 37M of the Federal Court of Australia Act 1976 (Cth) and the "overarching purpose" which it prescribes of facilitating the resolution of disputes as "quickly, inexpensively and efficiently as possible". He contended that the overarching purpose could not be achieved:
"by allowing a circumstance in which one or more of a number of plaintiffs, all controlled by the same individual, is permitted to discontinue proceedings, then to stand back and allow those proceedings to continue to a final judicial determination and then, depending on the outcome of those first proceedings and without any explanation, commence fresh proceedings raising the same facts."
Generally speaking, that might be so, although, as the decision of the House of Lords in Johnson v Gore Wood & Co, mentioned later in these reasons, assists us to understand, it is not invariably the case. For present purposes, however, it is beside the point. The previous trustee did not stand back and allow the Supreme Court proceedings to proceed to a "final judicial determination". It stood back after the proceedings had been temporarily stayed to see whether they would be permanently stayed, with the reasonable expectation that they would not be permanently stayed, and thus that it would not be necessary to prosecute the previous trustee's claims. As has been observed, that was not an unreasonable course to adopt in the circumstances of this case. And it was not inconsistent with the statutory shibboleth of making litigation as quick, inexpensive and efficient as possible. As Mr Tyne deposed, he was looking to limit the boundaries of the litigation.
Federal Court proceedings not otherwise abuse of process
Counsel for UBS embraced Dowsett J's dissenting conclusion that the Federal Court proceedings amounted to an abuse of process in circumstances where the previous trustee could have participated in the Supreme Court proceedings but chose not to do so. Apparently, that aspect of his Honour's reasoning was informed by the majority's obiter dictum observation in Tomlinson v Ramsey Food Processing Pty Ltd that:
"it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel." (footnote omitted)
That dictum, however, ought not to be taken to mean that just because a claim could have been but was not made in an earlier proceeding it is an abuse of process to advance it in a subsequent proceeding. Whether there is an abuse of process in such a case depends on the circumstances of the case. As was observed by the House of Lords in Johnson, the question is whether in all the circumstances a party should be seen as misusing or abusing the process of the court by failing to make a claim in an earlier proceeding or, as here, discontinuing a claim in an earlier proceeding with a view possibly to bringing that claim again in a subsequent fresh proceeding when and if matters do not turn out as expected. Lord Bingham of Cornhill (with whom Lord Goff of Chieveley, Lord Cooke of Thorndon and Lord Hutton agreed) reasoned thus:
"It is ... wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before."
Granted, as the majority observed in Tomlinson, there are circumstances in which making a claim or raising an issue previously made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in the earlier proceeding, may constitute an abuse of process despite not being barred by estoppel. Their Honours instanced Walton, Reichel v Magrath and Coffey v Secretary, Department of Social Security. But the circumstances of those cases were very different from this case.
Walton concerned earlier proceedings wherein the Court of Appeal of the Supreme Court of New South Wales ordered that disciplinary proceedings instituted in 1986 against two registered medical practitioners in relation to events occurring in 1973, 1976 and 1977 be stayed because of the long delay in instituting the proceedings after the relevant facts had become known. That delay was found to be "appalling" and "inexcusable" and such as significantly to prejudice the medical practitioners in the defence of the complaints. On that basis, it was held that the continuation of the proceedings would be so unfairly and unjustly oppressive for the medical practitioners as to constitute an abuse of process. An application for special leave to appeal to this Court was refused on the basis that the matters which the Court of Appeal had been required to take into account involved questions of fact and degree which it would not be appropriate for this Court to consider. Concurrent proceedings against another registered medical practitioner were stayed as a result of the Court of Appeal's decision.
In 1991, after a subsequent Royal Commission in which findings were made bearing upon the propriety of the conduct of a number of medical practitioners, including the three practitioners mentioned in relation to the earlier proceedings, further disciplinary proceedings were instituted against the medical practitioners concerning events commencing in 1970, 1972 and 1973 and ending in 1978. The further proceedings differed from the earlier proceedings only to the extent that the earlier proceedings had focussed on the two medical practitioners' treatment with deep sleep therapy and electric shock therapy of a few designated patients, while the further proceedings were cast in terms of more general allegations of malpractice arising out of the same pattern of professional conduct. A majority of the Court of Appeal held that the further proceedings should be stayed. On appeal to this Court, it was held that no error was shown in the Court of Appeal's reasoning. It was the result of a weighing process which involved a subjective balancing of the various factors and considerations supporting or militating against a conclusion that a continuation of the disciplinary proceedings would be so unfairly and unjustifiably oppressive of the practitioners as to constitute an abuse of the available disciplinary processes. Walton was an extreme case.
Reichel, which was cited in Walton, was also an extreme case. Reichel, who had ceased to be the vicar of a benefice, failed in an action against the bishop and patrons of the benefice for a declaration that he remained the vicar. In a subsequent proceeding brought by the newly appointed vicar of the benefice, Magrath, for a declaration of due appointment and for an injunction to restrain Reichel from depriving him of the use and occupation of the vicarage, Reichel pleaded by way of defence the same claim to be the vicar that had been rejected in his earlier proceeding against the bishop and patrons of the benefice. The House of Lords struck out the defence as an abuse of process on the basis that it would be a scandal to the administration of justice if a claim having been disposed of in one proceeding could be set up again by the same party in another proceeding. The ratio of the case was that it was an abuse of process for a claimant to attempt to raise a claim in a fresh proceeding where that claim had already been determined adversely to the claimant in a previous proceeding to which she or he was party.
Coffey was in material respects like Reichel in that it concerned an abuse of process the result of a claimant seeking to advance a claim which had already been determined adversely to the claimant in previous proceedings. Specifically, Coffey claimed an entitlement to withheld social security benefits which was rejected. The rejection was then thrice reviewed and determined adversely to him in three separate reviews of his social security entitlements under a comprehensive multi-level process for review of decisions under Ch 6 of the Social Security Act 1991 (Cth). In those circumstances, the Full Court of the Federal Court of Australia held that it was an abuse of process for Coffey later to bring common law proceedings for recovery of what he claimed to be the underpayment of his social security entitlements. As the Court observed, to allow Coffey to relitigate what had already been determined in the multi-level review process which Coffey had pursued to its completion would be to permit curial process to be employed in a manner unfair to a defendant who had already been thrice vexed with and thrice defeated the same claim in the earlier review proceedings.
In sum, Walton was a case where the fresh disciplinary proceedings were stayed because they were in substance substantially the same as the earlier proceedings which had been stayed by reason of "appalling" and "inexcusable" delay productive of significant prejudice to the medical practitioners in the defence of the complaints. And Reichel and Coffey were cases where the fresh proceedings were stayed as an abuse of process because the claims sought to be advanced in the fresh proceedings were claims which had been previously litigated to judgment, at least once, by the same claimant.
By contrast here, the delay has not been "appalling" or "inexcusable". And, as has been observed, there is no evidence or other reason to suppose that such delay as there has been would significantly prejudice UBS in the defence of the Trustee's claims. Further, the Trustee's claims, including those under the TPA, have not been determined in any previous proceedings. Nor have Telesto's claims under the TPA been determined in any other proceedings. UBS prevented such claims from being litigated in the Supreme Court proceedings by having those proceedings stayed. Relevantly, all that has happened is that the previous trustee made its claims in the Supreme Court proceedings and then discontinued its involvement in those proceedings even before UBS filed a defence.
One case not mentioned by the majority in Tomlinson but which arguably comes closer to the present case is the decision of the Court of Appeal of England and Wales in Talbot v Berkshire County Council. The case concerned a personal injury action arising from a motor vehicle accident in which the plaintiff and Talbot, the driver of the vehicle, sustained serious injuries. Talbot had been a defendant in the action and in that capacity was apportioned two-thirds of the blame and obtained judgment in the interest of his insurer for a one-third contribution from the Berkshire County Council. When Talbot subsequently brought a separate proceeding in his own interest against the Berkshire County Council to recover damages for his own injuries, the primary judge held that Talbot was not estopped from bringing the proceeding but that it was nonetheless statute-barred. An appeal to the Court of Appeal was dismissed by Stuart-Smith LJ on the basis that, because Talbot had not deployed his full case in the earlier proceeding, the subsequent proceeding was estopped by reason of the principle expounded by Wigram V-C in Henderson v Henderson; and by Mann LJ (with whom Nourse LJ agreed) on the basis that the claim was barred by cause of action estoppel "in the wide sense identified by Wigram V-C" in Henderson and also by reason of the "Kilbrandon principle", enunciated by Lord Kilbrandon in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd, that a proceeding should be dismissed as an abuse of process if it raises matters that could and therefore should have been litigated in earlier proceedings.
Talbot should not be followed. As was observed in Port of Melbourne Authority v Anshun Pty Ltd, Henderson did not hold that it is an abuse of process for a claimant to fail to deploy her or his full case in an earlier proceeding. It held that a claim which was within the pleadings in an earlier action and was not brought forward for adjudication was barred by estoppel per rem judicatam. In Talbot, the cause of action for personal injuries was different from the cause of action, and therefore outside the pleadings, in the earlier proceeding. Equally, the so-called "Kilbrandon principle" from Yat Tung proceeded from the Privy Council's misconception of what had been determined in Henderson. As was later recognised by the House of Lords in Johnson, it is not the case that, just because a claim could have been litigated in earlier proceedings, it should have been. The crucial question is whether, in all the circumstances, a party is misusing or abusing the process of the court. And the determination of that question calls for a "broad merits-based approach" of which one relevant factor is reasonable diligence.
This Court had earlier come to a similar conclusion in Anshun, to the effect that the question of whether a claim that could have been made in an earlier proceeding can be brought in a subsequent fresh proceeding turns on whether the failure to advance it in the earlier proceeding was unreasonable. There the plurality held that there will be no estoppel in relation to a fresh proceeding unless the matter relied upon in the fresh proceeding was so relevant to the subject matter of the earlier proceeding that it was unreasonable not to rely upon it in the earlier proceeding. And, generally speaking, it is not unreasonable not to rely on a matter in an earlier proceeding unless, having regard to the nature of the claim in the earlier proceeding, it would be expected that the party seeking to rely on the matter in the new proceeding would have raised the matter in the earlier proceeding and thereby enabled the relevant issues to be determined at that time. Further, as was observed in Anshun, it is necessary to bear in mind that there are a variety of reasons why a party may justifiably refrain from litigating an issue in an earlier proceeding yet wish to litigate the issue in another proceeding, including expense, importance of the particular issue, and motives extraneous to the litigation. And here, as has been seen, the previous trustee had good reason for discontinuing its involvement in the Supreme Court proceedings.
Of course, as the majority observed in Tomlinson, it is because the doctrine of abuse of process is an inherently broader and more flexible doctrine than estoppel that it is available to relieve against injustice to a party or impairment to the system of administration of justice and so to provide the basis for staying a claim that may not be barred by cause of action, issue or Anshun estoppel. It will be recalled that their Honours instanced Walton, Reichel and Coffey as exemplifying circumstances where, because so much time had gone by since the earlier proceedings in which the claim could have been but was not advanced, or because the claim had already been determined adversely to the claimant in earlier proceedings (albeit not necessarily directly as against the putative defendant), it would be unjustifiably oppressive to the putative defendant or otherwise bring the administration of justice into disrepute to allow the claim to proceed. To those examples may be added the circumstance of where a claim is an abuse of process because it is brought for a collateral purpose.
But where, as here, the delay since the earlier proceedings in which the claims could have been prosecuted has not been inordinate or inexcusable, there has been no previous determination of the Trustee's claims, the prosecution of the claims would not be unjustifiably oppressive to UBS, and the claims are not brought for a collateral purpose or otherwise in circumstances or in a manner which would bring the administration of justice into disrepute, the only issue is whether it was unreasonable of the previous trustee not to prosecute the claims to judgment in the earlier proceedings. In effect, that means whether the claims are barred by Anshun estoppel, and, for the reasons already given, and as was held by the primary judge, they are not.
Judicial restraint
This appeal was conducted on the assumption that the principles of judicial restraint described in House v The King apply to an appeal from a decision concerning whether an abuse of process has occurred. On that assumption, our conclusion, like that of the majority of the Full Court of the Federal Court, is that the primary judge's reasoning involved errors of principle that necessitate reconsideration of whether an abuse of process occurred. Thus, for present purposes, it is unnecessary to consider whether questions of abuse of process should be conceived of as subject to a level of judicial restraint where comparable questions, such as, for instance, procedural fairness and abuse of powers, are not.
Conclusion and orders
The majority of the Full Court of the Federal Court was right to hold that it was not an abuse of process for the Trustee to institute the Federal Court proceedings after the previous trustee had discontinued its participation in the Supreme Court proceedings. The appeal to this Court should be dismissed with costs.