matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.[135]
In the cases from Henderson up to and including Greenhalgh, the principle articulated by Sir James Wigram VC in the italicised passage extracted at [166] above was seen as the working out of the res judicata principle or at most an extension of it. However, the reference by Somervell LJ to abuse of process was picked up in subsequent cases in the United Kingdom as introducing an independent basis of preclusion.
In Brewer v Brewer,[136] the High Court did not pick up on abuse of process. Fullagar J (with whom Dixon CJ agreed) said:
In Yat Tung Co v Dao Heng Bank,[138] Lord Kilbrandon speaking for the Privy Council identified abuse of process as the rationale for the principle articulated by Sir James Wigram VC in Henderson, the decision of the Privy Council in Hoysted and the decision of the Court of Appeal in Greenhalgh and broadened the criterion, saying:
Case Details
Citation[2015] SASC 123
CourtSASC
JurisdictionSouth Australia
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