The ancient doctrine of res judicata still resonates in Australian courts today. Res judicata is a Latin phrase that translates to “a matter decided” and refers to the preclusion of claims from litigation when they have already been decided with finality and merit. The doctrine protects the court system from being overrun by litigants retrying cases until a favourable outcome is achieved, which is essential in the context of an overrun and under resourced Family Court system. It also protects other parties from having to respond to repeated claims at their expense.

However, it also increases the stakes when pursuing litigation, since once a matter is res judicata, it cannot be heard again. Therefore, it is critical if you are considering pursuing a matter in court, that you place yourself in the best possible position to achieve a favourable outcome.

Clayton v Bant [2020] HCA 44

The Facts

A significant case heard in the High Court of Australia considered the operation of res judicata in relation to the orders of foreign courts. The question was whether the decision of a foreign court could preclude a party from pursuing property and spousal maintenance orders.

In Clayton v Bant, the couple was married in 2007 in a Sharia Court. The wife was an Australian citizen who visited frequently and the husband was a citizen of the United Arab Emirates. The couple had property both in Australia, UAE and around the world, and they also had children.

In 2013, the wife commenced proceedings in the Family Court of Australia seeking spousal maintenance and property settlement orders. Subsequently, the husband commenced proceedings in Dubai, seeking a divorce and the extinguishment of all the wife’s rights to alimony. The wife elected not to participate in the proceeding in Dubai. The Dubai Court granted the husband an “irrevocable fault-based divorce” and ordered the wife to pay AED $100,000 plus costs.

The husband then applied to the Australian Family Court to permanently stop the proceedings on the basis that the wife should be prevented from pursuing her claim in Australia, as she could have sought a division of assets or maintenance in the Dubai proceedings. His application to stop the proceedings was rejected by the Family Court. He appealed to the High Court.

The Decision of the High Court

The High Court unanimously allowed the appeal, but found that the legal right to seek orders for property settlements and spousal maintenance could only be extinguished by a court making orders pursuant to the Australian Family Law Act. This clarified the stance that res judicata would only operate with respect to matters decided in the relevant jurisdiction. In this case, the court in Dubai did not have legislative jurisdiction to make orders in relation to property settlement matters outside of the UAE.

The High Court in Clayton v Bant distinguished the case In the Marriage of Caddy & Miller (1986) 84 FLR 169, where it was held that the wife was prevented from asserting her rights in an Australian Court. This was due to prior orders that had been made by the Supreme Court of California, which did have the jurisdiction to give final orders on property settlement matters regarding property in Australia.

Final Thoughts on Res Judicata

In Clayton v Band the High Court found against the husband’s application to permanently stay proceedings in the Family Court. The case is a timely reminder of the complexity of litigation and the importance of ‘giving it your best’ the first time around as you may be barred from a second chance.

Notably this case also highlights the need to seek legal advice where relationships exist in multiple countries. Complexities arise when matters can be heard, or are being heard in multiple jurisdictions, and this will determine the operation of res judicata.


Recent clarification of the res judicata doctrine is an important reminder of how necessary obtaining quality legal representation is. At Etheringtons Solicitors, we have a highly experienced and strategic team who will work with you to achieve a desirable outcome in Family Law matters. If you are concerned about your property settlement or divorce, please do not hesitate to get in touch with our office by calling 02 9963 9800 or via our contact page.