David Jackson QC, Ann-Maree McDiarmid, and Stephanie Gaussen represented the successful appellant in Clayton v Bant  HCA (Kiefel CJ, Bell, Gageler, Gordon and Edelman JJ). The principal issue before the High Court was whether a divorce effected in Dubai precluded the prosecution of the appellant’s claims in the Family Court for property under s. 79 and spousal maintenance under s. 74 of the Family Law Act 1975 (Cth) whether by res judicata (or cause of action estoppel), or the “Henderson extension”.
The Full Court of the Family Court granted a permanent stay on the basis that the Dubai Court had finally determined the financial consequences of the marital breakdown. The property settlement proceedings raised the same “cause of action” as that determined in proceedings in Dubai, and so gave rise to “res judicata estoppel”. In circumstances where the appellant had had a remedy to obtain an adjustment of property and alimony under Dubai law and failed to prosecute those claims, the appellant’s Australian claims for property and spousal maintenance were also barred by the “Henderson extension”.
The High Court unanimously allowed the appeal. In a joint judgment, Kiefel CJ, Bell and Gageler JJ found that the Full Court did not adequately differentiate the principles governing “claim estoppel” and “Anshun estoppel” and clarified the distinction between the two. Their Honours rejected the “transactional approach” to estoppel which had been applied by the Full Court and affirmed that the Australian approach “demands a more granular analysis”. Chief Justice Kiefel, and Justices Bell and Gageler concluded that the rights which could have been pursued in the Dubai proceedings were not equivalent to those pursued in the Family Court proceedings, and accordingly found that the proceedings were not estopped. Separately, their Honours found that, because the Family Court proceedings concerned a statutory right to seek orders under the Family Law Act 1975 (Cth), there was no scope for res judicata to arise because the rights created by s. 79 and s. 74 could only “merge” in judicial orders of a court with jurisdiction under the Act to make those orders.
In separate decisions, Justice Gordon and Justice Edelman each independently found that the appeal ought to be allowed. Their Honours proceeded on the basis that there are four separate rules of finality – res judicata, cause of action estoppel, issue estoppel, and Anshun estoppel.
A link to the judgment can be found here: Clayton v Bant  HCA 44.
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