Bayne v Blake (No 3) [1909] HCA 60; (1909) 9 CLR 366 (30 September 1909)

HIGH COURT OF AUSTRALIA

Bayne and Another Plaintiffs, Appellants; and Blake and Others Defendants, (No. 3.) Respondents.

H C of A

On appeal from the Supreme Court of Victoria.

30 September 1909

Griffith C.J., Barton and O'Connor JJ.

The appellant Lila Elizabeth Bayne in person.

Mann, for the respondents.

Griffith C.J.

We are very much indebted to Mr. Mann for the assistance he has given us in this case, and the appellants may be assured that the case has been as fully presented to the Court as if they had been represented by counsel. The order from which the appeal is brought is an order giving judgment for the defendants, the respondents, on the ground that the action was frivolous and vexatious and that the defendants had a good defence on the merits. The principles upon which the Courts will deal with applications of that sort were laid down by this Court in a similar case between the same parties, Bayne v. Riggall[1], but there is nothing in the judgment of that case which will assist the appellants in the present appeal, because here the actual facts are substantially before the Court. The action was brought by the appellants against the respondents setting up that the respondent, Grace Bayne, some years ago, when she was administratrix of the estate of her mother, of which she and the appellants were the sole beneficiaries, committed certain breaches of trust, one of which was that she executed certain mortgages of property. It is alleged that the other two respondents are the mortgagees of the land and acquired the mortgage with notice of the breaches of trust. Another claim made is that the respondents, Blake and Riggall, received certain costs out of the estate for services rendered by them as solicitors in connection with what they knew to be another breach of trust. The application to dismiss the action was made on the ground that these matters have really been investigated in a suit between practically the same parties, that all the facts had been inquired into, and that the opinion of the highest tribunal in the Empire had been given in respect of them, so that it would be idle to try them all over again without any possibility of success for the appellants in the action. That being so it was said that the case was one for dismissal of the action.

In the argument put before us by the appellants it is suggested that the doctrine of res judicata cannot be set up because the questions for determination in this suit are not the same in form as the questions in the previous suit. That is possibly so. But the application assumes that this is not a case in which the defence of res judicata can be pleaded. It is made on other grounds, and the Court must have regard to all the circumstances, or, as Lord Watson said in Lawrance v. Norreys (Ld.)[2], "the whole probabilities of the case, and the judicial history of the claim." We know the judicial history of the very same dispute between the very same parties, we know how it was decided, and we think it would be absurd to allow it to be litigated again. This Court never expressed any opinion upon the facts. The matter was argued before this Court upon the question of the validity of a release, and we were not invited to express any opinion except as to the release, and we held it was bad. The Judicial Committee, however, went into the whole matter. They held that the release was good, and also went into the other facts and expressed an opinion upon them. But, whether that could or could not be set up as res judicata, I think that any attempt to re-open the matter between the same parties would be hopeless. For these reasons I think the learned Judge was bound to make the order which he made, and that the appeal should be dismissed.

Barton J.

I am of the same opinion.

O'Connor J.

I also concur.

Appeal dismissed with costs.

Solicitors, for respondents, Blake & Riggall.

[1] [1908] HCA 39; 6 C.L.R., 382.

[2] 15 App. Cas., 210, at p. 222.