Abuse of process

  1. CGU Insurance Ltd v Watson [2007] NSWCA 301 at [40]:

The Supreme Court has an inherent jurisdiction to prevent abuse of its procedures, and may stay or dismiss proceedings the bringing or continuance of which is an abuse of process. Even if principles of res judicata or Anshun estoppel do not apply, there may be abuse of process in relitigating an issue decided against a party in previous proceedings.

Abuse of process

PRACTICE AND PROCEDURE – abuse of process – unconditional discontinuance proceedings in different court involving same substratum of fact – whether abuse of process operates against person not party to earlier proceeding – where earlier proceeding not decided upon merits – opportunity to make claims in earlier proceedings – oppression or unfairness

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Issue estoppel, res judicata and abuse of process


Jener Daluz v John McMahon [2016] NSWSC 202

Application for summary dismissal of medical negligence proceedings relating to treatment of injuries said to have been sustained by the plaintiff in a motor vehicle accident – settlement of separate proceedings relating to the accident itself – whether consent judgment in those proceedings concluded the issue of damage in the medical negligence proceedings – issues of res judicata, estoppel, abuse of process and double satisfaction

Issue estoppel

Estoppel – Issue estoppel – Appellant employed at abattoir operated by respondent – Appellant subsequently employed by third party providing labour services to respondent – Appellant complained to Fair Work Ombudsman that entitlements not paid upon termination of employment – Fair Work Ombudsman commenced proceedings in Federal Court of Australia against respondent – Federal Court determined respondent, not third party, was appellant’s employer – Appellant commenced proceedings claiming damages from respondent for personal injury sustained at abattoir – Appellant argued third party, not respondent, was his employer – Respondent argued appellant was issue estopped by reason of Federal Court proceedings from denying that respondent was appellant’s employer – Whether appellant was issue estopped by reason of declarations and orders made in Federal Court proceedings – Whether appellant was privy in interest with Fair Work Ombudsman in Federal Court proceedings.


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