PRODATA SOLUTIONS PTY LTD v SOUTH AUSTRALIAN FIRE AND EMERGENCY SERVICES COMMISSION [2025] SASC 138

Applicant: PRODATA SOLUTIONS PTY LTD Counsel: MR J WHITE KC - Solicitor: KRUSE LEGAL First Respondent: SIMON ZACEST No Attendance Second Respondent: LUBOS VNUCK No Attendance Third Respondent: ROBERT ARTHUR IRVING ABSALOM No Attendance Fourth Respondent: MARTIN OOTES No Attendance Fifth Respondent: SMS CONSULTING GROUP LTD No Attendance Sixth Respondent: NTT AUSTRALIA DIGITAL PTY LTD No Attendance Seventh Respondent: DIALOG PTY LTD No Attendance Eighth Respondent: SOUTH AUSTRALIAN FIRE AND EMERGENCY SERVICES COMMISSION Counsel: MS A DOECKE KC WITH MR W AMBROSE - Solicitor: CROWN SOLICITOR'S OFFICE Hearing Date/s: 25/03/2025 File No/s: CIV-23-008308 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. PRODATA SOLUTIONS PTY LTD v ZACEST & ORS [2025] SASC 138 Judgment of the Honourable Associate Justice Dart 26 August 2025 ESTOPPEL - ESTOPPEL BY JUDGMENT - RES JUDICATA OR CAUSE OF ACTION ESTOPPEL ESTOPPEL - ESTOPPEL BY JUDGMENT - ISSUE ESTOPPEL ESTOPPEL - ESTOPPEL BY JUDGMENT - ANSHUN ESTOPPEL PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - DEFAULT JUDGMENT - OTHER PARTICULAR JUDGMENTS - ON CLAIM FOR DEBT OR LIQUIDATED DEMAND PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO PREVENT ABUSE OF PROCESS - ATTEMPTS TO RELITIGATE -- 1 of 14 -- The applicant commenced proceedings against the eighth respondent in the Federal Court - those proceedings were dismissed in 2020 due to the failure of the applicant to comply with orders of the Court - these proceedings were commenced in 2023 - for all relevant purposes this proceeding is the same as the proceeding dismissed in the Federal Court - the eighth respondent says that the Federal Court judgment creates res judicata - it also says that relitigating the claim is an abuse of process - the eighth respondent has applied for dismissal of the proceedings - it is appropriate to dismiss the proceedings. Prodata Solutions Pty Ltd v South Australian Fire and Emergency Services Commission (No 3) [2020] FCA 1210; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572; Mandeville v Better Lending Pty Ltd & Anor [2021] SASCA 28; Zetta Jet Pte Ltd v The Ship “Dragon Pearl” (No 2) [2018] FCAFC 132; McDonald v State of South Australia [2011] FCA 297; McDonald v State of South Australia [2008] SASC 134; State of South Australia v McDonald [2009] SASC 219, considered. -- 2 of 14 -- PRODATA SOLUTIONS PTY LTD v ZACEST & ORS [2025] SASC 138 1 These reasons deal with an interlocutory application, filed by the eighth respondent, by which it seeks to have the action dismissed as an abuse of process. It is appropriate to dismiss the action against the eighth respondent. Background 2 The applicant is a software development company. Commencing in 2001, it developed and maintained an Emergency Services Organisation Training and Administration System (“ESOTAS”) for use by the South Australian Fire and Emergency Services Commission (“SAFECOM”). There were various arrangements in place over a lengthy period of time. In 2014 an agreement was signed by SAFECOM acknowledging the applicant’s ownership of intellectual property rights in the source code used in the system. In 2018 SAFECOM terminated the 2014 agreement. 3 This claim deals with the assertion that SAFECOM, the eighth respondent, is inappropriately continuing to utilise intellectual property owned by the applicant. It seeks a declaration that the source code used in ESOTAS vests in it. It also seeks an injunction restraining it from using the source code without the applicant’s written consent. It is a complex dispute. These proceedings are the second by which the applicant has sought to vindicate its rights. 4 The applicant first commenced proceedings in the Federal Court in 2017. Those proceedings started with it seeking an interlocutory injunction. On the injunction argument, the eighth respondent conceded a serious question existed, but the injunction was declined on discretionary grounds. 5 The Federal Court proceedings progressed through various interlocutory steps for about two years. On 26 September 2019 the Court set the matter down for a four week trial to commence on 31 August 2020. At the same time, orders were made in relation to the preparation of the matter for trial. Among the orders was a requirement of the parties to produce evidence in chief in affidavit form. The parties were advised to commence preparation of their affidavits. 6 At a case management conference on 1 May 2020, formal orders were made requiring the applicant to file its expert evidence by 22 May 2020 and its lay evidence by 19 June 2020. The orders were made after the parties had been unable to agree a timetable to prepare the matter for trial. During the course of proceedings in the Federal Court it appears the applicant had four separate firms of solicitors acting for it. After the May orders were made, there was another change in solicitors and counsel and then the applicant ceased to be represented at all. Dismissal in the Federal Court 7 In the result, the applicant did not comply with the orders to file its lay evidence, nor did it seek an extension of time within which to do so or provide the -- 3 of 14 -- [2025] SASC 138 Dart AsJ 2 Court with details as to when its affidavits would be filed. The failure led to the vacation of the trial date fixed by the Court. After the vacation of the trial date, two of the respondents made applications to have the action dismissed. 8 The applications were made pursuant to both r 5.23(1)(b) of the Federal Court Rules 2011 and s 37P of the Federal Court of Australia Act 1976 (Cth) which relevantly provide as follows: 5.23 Orders on default (1) If an applicant is in default, a respondent may apply to the Court for an order that: … (b) the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant: (i) immediately; or (ii) on conditions specified in the order. … 37P Power of the Court to give directions about practice and procedure in a civil proceeding … (5) If a party fails to comply with a direction given by the Court or a Judge under subsection (2), the Court or Judge may make such order or direction as the Court or Judge thinks appropriate. (6) In particular, the Court or Judge may do any of the following: (a) dismiss the proceeding in whole or in part; (b) strike out, amend or limit any part of a party’s claim or defence; (c) disallow or reject any evidence; (d) award costs against a party; (e) order that costs awarded against a party are to be assessed on an indemnity basis or otherwise. … 9 The docket judge was Justice Charlesworth and she dealt with the dismissal applications. In doing so, her Honour also had regard to s 37M and s 37N of the Federal Court of Australia Act which are as follows: 37M The overarching purpose of civil practice and procedure provisions -- 4 of 14 -- [2025] SASC 138 Dart AsJ 3 (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. (3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. (4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings: (a) the Rules of Court made under this Act; (b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court. 37N Parties to act consistently with the overarching purpose (1) The parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose. (2) A party's lawyer must, in the conduct of a civil proceeding before the Court (including negotiations for settlement) on the party's behalf: (a) take account of the duty imposed on the party by subsection (1); and (b) assist the party to comply with the duty. (3) The Court or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party's lawyer to give the party an estimate of: (a) the likely duration of the proceeding or part of the proceeding; and -- 5 of 14 -- [2025] SASC 138 Dart AsJ 4 (b) the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including: (i) the costs that the lawyer will charge to the party; and (ii) any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding. (4) In exercising the discretion to award costs in a civil proceeding, the Court or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2). (5) If the Court or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from his or her client. 10 Her Honour dismissed the action on 21 August 2020 and provided reasons for doing so. In Prodata Solutions Pty Ltd v South Australian Fire and Emergency Services Commission (No 3)1 Justice Charlesworth said:2 The past conduct of Prodata is not to be examined merely as an indicator as to what might happen in the future should the proceedings remain on foot. Rather, the past conduct assumes significance because, as will be explained, it shows that Prodata has made deliberate choices not to avail itself of a fair opportunity to progress its substantive claims to trial and that its conduct has created an unjust circumstance in the proceedings that is irremediable by an award of costs. … It may be said that Prodata is “in default” for the purposes of that rule because it did not comply with the order for the filing of its lay affidavits. More broadly, I am satisfied that Prodata has not prosecuted its case diligently, given its: (1) failure to promptly apply to the Court to vary the deadline upon it becoming apparent that the deadline could not be met; (2) failure to file the lay affidavits within the ordered time; (3) failure to advance an alternative timetable to schedule the matter toward the trial dates or to propose alternative trial dates. … Having regard to all of the circumstances, it is preferable to view Prodata’s conduct in the proceedings as constituting a choice not to avail itself of the opportunity it has been given to progress its own claims fairly to trial, perhaps because it assumed (wrongly) that it would be granted a further opportunity. If that be Prodata’s assumption, it is not one that has been induced by the Court or either of the respondents. 1 [2020] FCA 1210. 2 [2020] FCA 1210 at [105], [107] and [133]. -- 6 of 14 -- [2025] SASC 138 Dart AsJ 5 11 The above paragraphs make clear that her Honour regarded the failure to comply with the orders of the Court to be a deliberate and wilful choice made by the applicant. 12 The following rule of the Federal Court should be mentioned for completeness: 39.03 Dismissal of proceedings and stay of further proceedings (1) If the Court makes an order dismissing a proceeding or part of a proceeding, the applicant may apply to the Court: (a) for an order that the dismissal be without prejudice to any right of the applicant to bring fresh proceedings; or (b) for leave to claim the same relief in a new proceeding. (2) If: (a) a proceeding has been dismissed in whole or in part; and (b) the Court has ordered the applicant to pay another party’s (the second party’s) costs; the second party may apply to the Court for an order staying any further proceedings brought by the applicant against the second party on the same or substantially the same cause of action or relief, until the costs have been paid. 13 No application was made pursuant to the rule to seek the right to bring further proceedings. There was no appeal from the order dismissing the action. About three years after the dismissal of the Federal Court action, this action was commenced. This application 14 The eighth respondent says that in this matter the issues of res judicata and/or abuse of process by relitigation arise.3 By application it seeks the following orders: 1. That the eighth respondent be granted summary judgment pursuant to r 143.2(1) of the Uniform Civil Rules 2020 because it is an abuse of the process of the Court. 2. In the alternative to paragraph 1, that the within action be dismissed pursuant to r 70.3 of the Uniform Civil Rules 2020 because the Claim is frivolous, vexatious or an abuse of the process of the Court. 3. That the applicant pay the respondent’s costs of the action, or in the alternative, the eighth respondent’s costs of and incidental to this application. 3 Interlocutory application FDN 19. -- 7 of 14 -- [2025] SASC 138 Dart AsJ 6 15 The eighth respondent says the dismissal by the Federal Court was a final judgment and res judicata arises which prevents the relitigation of the claim. There is no real dispute that this is the same claim against the eighth respondent that was prosecuted in the Federal Court. There are some additional respondents in this action but the reason for that is not clear. No relief is sought against a number of those respondents. It is also said that this action is an abuse of process relying on the principles espoused in Aon Risk Services Australia Ltd v Australian National University.4 16 The applicant contends that the dismissal was only a procedural order and that no res judicata or abuse of process arises. When does res judicata arise? 17 The essential difference between the parties is that the eighth respondent says the dismissal of the action in the Federal Court was such as to create res judicata. The applicant says that the orders of Justice Charlesworth amount to a dismissal for want of prosecution and that on the relevant authorities no res judicata can arise. 18 A useful starting point is the decision of the Full Court in Rogers v Legal Services Commission of South Australia.5 In the principal judgment Lander J said:6 In G S Bower & A K Turner, The Doctrine of Res Judicata (2nd ed, 1969), the learned authors say this: “The rule of estoppel by res judicata, which, like that of estoppel by representation, is a rule of evidence, may thus be stated: where a final judicial decision has been pronounced by either an English, or (with certain exceptions) a foreign, judicial tribunal of competent jurisdiction over the parties to, and the subject matter of, the litigation, any party or privy to such litigation, as against any other party or privy thereto, and, in the case of a decision in rem any person whatsoever, as against any other person, is estopped in any subsequent litigation from disputing or questioning such decision on the merits, whether it be used as a foundation of an action, or relied upon as a bar to any claim, indictment or complaint, or to any affirmative defence, case, or allegation, if, but not unless, the party interested raises the point of estoppel at the proper time and in the proper manner.” The principle is based upon two premises. The first is that it is in the public interest that there be an end to litigation and the finality and conclusiveness of a judicial decision is recognised. [Interest reipublicae ut sit finis litium.] The second is the private right of an individual to be protected from vexatious and oppressive suits arising out of the same circumstances. [Nemo debet bis vexari pro una et eadem causa.] 19 The reference in the quote referred to by Lander J, that there needs to be a final judicial decision, is what separates the parties on this application. 4 (2009) 239 CLR 175. 5 (1995) 64 SASR 572. 6 (1995) 64 SASR 572 at 592. -- 8 of 14 -- [2025] SASC 138 Dart AsJ 7 20 A more recent consideration of the issue was undertaken by the Court of Appeal in Mandeville v Better Lending Pty Ltd & Anor.7 In a joint judgment the Court said, in considering Rogers, as follows:8 Rogers concerned claims of breach of statutory duty, negligence in relation to false statements and misfeasance in public office, following a conviction for contempt of court that had ultimately been overturned on appeal. Prior to issuing the proceedings making these claims, the plaintiff had issued proceedings that had been struck out for failing to disclose any clear cause of action known to law. One of the issues in Rogers was therefore whether res judicata applied in circumstances where an action had been struck out for a defect in the pleading and if it did, to what cause of action it applied. Justice Lander recognised that there was a greater difficulty in determining what could properly constitute a plea of res judicata where a matter had not been formally adjudicated upon, such as where there had been a withdrawal before a matter was concluded, a compromise had been agreed to or a judgment had been entered by reason of default. He observed that a dismissal of the matter for want of prosecution did not give rise to a plea of res judicata in a subsequent proceeding. Further, however, he observed that a plea of res judicata will be available even where there has been no investigation into the merits of the matter, such as where consent orders or judgments are entered. (footnotes omitted) 21 The case of Zetta Jet Pte Ltd v The Ship “Dragon Pearl” (No 2)9 was a decision of the Full Federal Court. The Court wrote as one. The underlying facts in that case were that the matter had been called on for trial in the Federal Court, at which time the applicant sought an adjournment. The adjournment was refused and counsel was asked to open the case and call evidence. Counsel advised the Court he was not in a position to do so. The proceedings were then dismissed. New proceedings were subsequently issued. A justice summarily dismissed the new proceedings on res judicata grounds. The appeal was from that decision and, insofar as it related to the res judicata ground, was dismissed. After considering some authorities in respect to what constituted res judicata, the Court said:10 Further, the proposition that for a res judicata to arise there must be both a final judgment and it must be on the merits (in the sense of some form of reasoned adjudication of the merits) is contrary to the well-established position in Australia that res judicata applies to a final judgment in default or by consent: Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 at 519-521 and 526-527; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21; 164 CLR 502. However, in such cases, particularly where judgment is entered in default of defence, care must be taken in determining exactly what has been concluded by the judgment: Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572 at 596-597. There are principles that permit a default judgment to be set aside in certain circumstances. Also, a final judgment may be corrected for slip or error. Or it may be set aside on the basis that it was procured by fraud. However, where these steps are available, but not taken, the 7 [2021] SASCA 28. 8 [2021] SASCA 28 at [41]-[42]. 9 [2018] FCAFC 132. 10 [2018] FCAFC 132 at [27], [28], [30], [35] and [51]. -- 9 of 14 -- [2025] SASC 138 Dart AsJ 8 final judgment gives rise to a res judicata. It is not burdened by any uncertainty or defect that may be associated with a need to consider how it was obtained. … In some instances, judgment may be entered procedurally, such as by operation of a self-executing order in default of compliance with a direction or other order of the court. In some cases, dismissal is effected by operation of the rules, such as where cases have been inactive for a specified period and notice has been given but further steps have not been taken. However, such cases are in a different category because there is no hearing. They are akin to cases where orders are made ex parte. The doctrine of res judicata does not apply to orders of this kind: Mango Boulevard Pty Ltd v Spencer [2008] QCA 274 at [57]-[61]. They are not a final determination of rights. Consistently with that position, a self-executing order for judgment operating in default of compliance can always be the subject of an application for an extension of time for compliance after the specified date: Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179 at [41]-[49]. … Consistently with these principles, no purpose is served by inquiring into the particular circumstances in which final judgment was obtained in order to determine whether a res judicata arises. The relevant question is to inquire into what cause of action was adjudicated by the final judgment. For that reason, in determining the extent of the res judicata that arises in a particular case, the court looks only at the record (the nature of the claim and the final orders): Fernando v Commonwealth 231 FCR at 261 [45]; Pollnow v Armstrong [2000] NSWCA 245 and Willoughby v Clayton Utz [No 2] [2009] WASCA 29; 40 WAR 98 at 107 [27]-[28]. … The existence of each of these instances explains the requirement that a decision be both “final” and “on the merits” (or “litigated”) before it may give rise to a res judicata. However, it is equally clear that a default judgment and a judgment by consent may give rise to a res judicata. Therefore, the requirement that the final judgment be a judgment “on the merits” does not confine res judicata to those instances where there has been presentation of evidence and argument and the application of the law to the facts in a reasoned way. 22 In Zetta the appellant made an application for special leave to appeal to the High Court which was refused.11 23 Going back to Mandeville, the Court of Appeal also said:12 The Courts in Rogers and Zetta each acknowledge that while default judgments are capable of engaging the principles of res judicata, they will not always do so; it will depend upon a close scrutiny of the circumstances of the particular judgment and what it can be taken to have decided. Both decisions acknowledge that there will be some default judgments which are premised merely upon some procedural default (such as a failure to comply with an order for further disclosure), or indeed a dismissal for want of prosecution or the failure to identify a cause of action, where it simply cannot be said that the judgment is predicated upon any final determination on the merits of a cause of action. However, there will be 11 [2019] HCA Trans 014, 15 February 2019. 12 [2021] SASCA 28 at [74]. -- 10 of 14 -- [2025] SASC 138 Dart AsJ 9 other default judgments where, like consent judgments, it will be appropriate to treat them, as a matter of principle and policy, as having involved a determination on the merits of a particular cause of action. There need not for this purpose be an actual determination following the presentation of evidence and argument, and the application of the law to the facts in a reasoned way. (footnotes omitted) 24 A summary of the above authorities is that a full trial of a matter is not required to establish res judicata. While an administrative or procedural judgment without a hearing will not usually suffice to create res judicata, anything more formal than that may do so. Consideration 25 The applicant says that all that occurred in the Federal Court was a dismissal for want of prosecution. It says that that being the case, no question of res judicata can arise. That may well be correct, but I am not convinced that the Federal Court decision can be characterised in that way. 26 There is a difference between dismissing an action that has been meandering along at a sluggish pace and dismissing an action for failing to comply with court orders. It is the latter that occurred here. Justice Charlesworth found that the non-compliance with orders to prepare for trial was deliberate. The action was dismissed because of the applicant’s failure to comply with orders of the Court. The Federal Court has no express rule dealing with the consequences of a want of prosecution. 27 The dismissal occurred after argument on two interlocutory applications brought by the respondents in the Federal Court proceedings. The respondents sought orders for dismissal of the action. There was a contest and the Court made a decision to dismiss the action. The dismissal order cannot be regarded as simply administrative or procedural. It was an order of substance based on the applicant’s failure to avail itself of the opportunity to have the matter proceed to trial. It is appropriate to treat the judgment as a final judgment on the merits of the action, even though the substantive merits were not considered by the Federal Court. 28 The eighth respondent seeks summary judgment. It relies on UCR 143.1(1): 143.1—Judgment for failure to disclose basis (1) The Court may grant judgment dismissing an action on the ground that no reasonable cause of action in the case of a claim, or basis for the application in the case of an originating application, is capable of being disclosed. 29 The decision of the Federal Court creates res judicata. The cause of action in that proceeding merged into the judgment. It no longer has an independent existence. The applicant accepts that the statement of claim in this action is -- 11 of 14 -- [2025] SASC 138 Dart AsJ 10 effectively the same as the final statement of claim in the Federal Court.13 It follows that no reasonable cause of action is disclosed in these proceedings. The cause of action which the applicant wishes to pursue is precluded and does not arise. The eighth respondent is therefore entitled to summary dismissal of the claim against it. Abuse of process 30 It is not strictly necessary to consider the alternate basis put forward by the eighth respondent. I will, however, do so briefly. 31 The eighth respondent submits that the attempt by the applicant to relitigate this claim is an abuse of process. It relies, in part, for that submission on what was said by Besanko J in McDonald v State of South Australia.14 His Honour, after considering the issues of res judicata, issue estoppel and Anshun estoppel said:15 The doctrines set out above have a number of technical requirements. The Court’s jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of is not limited to cases where those technical requirements can be made out: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ (‘Walton’); Rana v University of South Australia [2008] FCA 1903 at [43]. The operation of the doctrines of res judicata, issue estoppel and Anshun estoppel is subsumed into the - 13 - Federal Court’s implied incidental power to prevent abuse of its processes: Spalla at [59]. Justice French said in Spalla (at [66]) that: the doctrines of res judicata, issue estoppel, and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted relitigation of a dispute already judicially determined. In Walton Mason CJ, Deane and Dawson JJ said (at 393) that: … proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The power to strike out a claim is to be exercised sparingly and ‘upon an examination of the relevant circumstances of the particular case before the Court: Spalla at [70]. In State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81- 423 (at 64,089) (‘Stenhouse’), Giles CJ set out a list of relevant matters in determining whether it would be an abuse of process if a party were allowed to litigate an issue already raised in previous proceedings: (a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary or an ultimate issue; 13 Transcript of 25 March 2025, page 5, line 36. 14 [2011] FCA 297. 15 [2011] FCA 297 at [41]-[43]. -- 12 of 14 -- [2025] SASC 138 Dart AsJ 11 (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of – (f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process. In Spalla, French J described this list as a non-exhaustive one (at [70]). 32 It should be noted that Mr McDonald had prosecuted a claim to trial in the Supreme Court16 which had been subject to an appeal to the Full Court.17 The Federal Court action was instituted after his claim was dismissed by the Full Court. 33 In Aon Risk Services Australia Ltd v Australian National University the High Court was dealing with the question of whether it was appropriate to allow an amendment of a pleading that would cause a trial to be vacated. The plurality said:18 The salient features of the application for leave to amend in this case were, as Lander J pointed out in his dissent, that the amendments sought to introduce new and substantial claims; they were so substantial as to require Aon, in effect, to defend again, as from the beginning; the application was brought during the time set for the trial of the action and would result in the abandonment of the trial if granted; and there was a question whether costs, even indemnity costs, would overcome the prejudicial effects on Aon if the litigation to this point was not productive of an outcome. 34 At first blush this matter appears different to the McDonald matter in that Mr McDonald had a full trial of his matter. Logically, though, if the dismissal of the Federal Court action is a final decision for the purpose of res judicata, it must also be so in relation to the issue of abuse by relitigation. 35 The eighth respondent was pursued by the applicant for three years in the Federal Court. The process continued until shortly before the trial which was, as set out above, abandoned due to the conduct of the applicant. As noted in Aon, the eighth respondent was entitled to expect the three years of litigation in the Federal Court would be productive of an outcome. 36 In Aon French CJ also stated:19 16 McDonald v State of South Australia [2008] SASC 134. 17 State of South Australia v McDonald [2009] SASC 219. 18 (2009) 239 CLR 175 at [104]. 19 (2009) 239 CLR 175 at [25]. -- 13 of 14 -- [2025] SASC 138 Dart AsJ 12 Recognition of the public interest in the administration of civil justice procedures in Australia and the United Kingdom pre-dates the Woolf Report and its attendant reforms. In Dawson v Deputy Commissioner of Taxation, King CJ acknowledged the responsibility of judges to ensure, "so far as possible and subject to overriding considerations of justice", that the limited resources which the State commits to the administration of justice are not wasted by the failure of parties to adhere to trial dates of which they have had proper notice. In a late amendment case considered by the House of Lords in 1987, there was a marked departure from the approach of Bowen LJ in Cropper v Smith. Lord Griffiths required that judges considering amendments weigh in the balance: "the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently". The same indulgence could not be shown towards the negligent conduct of litigation as might have been possible in a "more leisured age". That approach was followed by Sheppard J in a revenue case heard in the Federal Court. And in the New South Wales Court of Appeal in GSA Industries, Samuels JA said that: "the emollient effect of an order for costs as a panacea may now be consigned to the Aladdin's cave which Lord Reid rejected as one of the fairy tales in which we no longer believe." The approach reflected in these authorities was applied by a majority of the Full Court of the Federal Court in Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd. (footnotes omitted) 37 The applicant had the benefit of utilising the public resourced Federal Court for a period of three years. That did not provide an outcome because of its conduct. It would be vexatious to the eighth respondent to simply allow the applicant to come to this Court and start again. 38 The finding by Besanko J in McDonald demonstrated that res judicata and abuse of process may arise on the same facts. I think that is the case here. This action could have been dismissed on abuse grounds but it is not necessary to do so when res judicata applies. 39 I will hear the parties on the form of the orders and any other relevant matter given there are other respondents. -- 14 of 14 --