ae > Bow. be JUDGMENT No. WS). ¢-3SS CATCHWORDS Administrative Law - application by respondent to Administrative Appeals Tribunal for compensation for injury suffered by the respondent in the course of her employment with the Commonwealth - unsuccessful action brought by the respondent in Supreme Court of the Australian Capital Territory for damages for personal injury suffered in same incident ~— finding by Supreme Court that Commonwealth not 1n breach of duty of care - further findings made on questions relevant to the issue of damage - whether findings made in relation to issue of damage created issue estoppel binding the parties in the proceedings before the Tribunal - question whether Tribunal bound' by issue estoppel established in judicial proceedings discussed but not decided. Administrative Appeals Tribunal Act 1975, s.33. THE COMMONWEALTH OF AUSTRALIA V ANNUNZIATA SCIACCA A.C.T.G 51 of 1987 BOWEN C.J., SHEPPARD AND MORLING JJ. Sydney 31 March 1988 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SQUTH WALES DISTRICT REGISTRY ) No. A.C.T. G51 of 1987 ) ) GENERAL DIVISION Questions of law referred by the Administrative Appeals Tribunal BETWEEN: THE COMMONWEALTH OF AUSTRALIA Applicant AND: ANNUNZIATA SCIACCA Respondent MINUTE OF ORDER JUDGES MAKING ORDER : Bowen C.J., Sheppard and Morling JJ. DATE OF ORDER 31 March 1988 oo WHERE MADE Sydney THE COURT ORDERS THAT: 1. The questions of law referred by the Administrative Appeals Tribunal in the special case: "Whether the respondent in the proceedings in the Administrative Appeals Tribunal on a review of a decision relating to a claim under the Compensation (Commonwealth Government Employees) Act i971 is precluded by the rule relating to issue estoppel from contending the contrary of the following findings made by the Supreme Court of the Australian Capital 2. Territory on 18th October 1985: (1) any condition of the respondent/plaintiff's back has no causal relationship to the accident; (2) by 13 December 1978 the respondent/plaintiff£ was fit to return to her duties as a tea attendant." be answered: (1) No. (2) No. 2. The Commonwealth of Australia to pay to Annunziata Sciacca her costs of the reference. NOTE: Settlement and entry of orders is dealt with un Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) Wo. A.C.T. G51 of 1987 ) ) GENERAL DIVISION Questions of law referred by the Administrative Appeals Tribunal BETWEEN: THE COMMONWEALTH OF AUSTRALIA Applicant AND: ANNUNZIATA SCIACCA Respondent CORAM: BOWEN C.d., SHEPPARD and MORLING JJ. DATED: 31 March 1988 REASONS FOR JUDGMENT THE COURT: Proceedings are pending in the Administrative Appeals Trabunal in which the applicant claims compensation under the provisions of the Compensation (Commonwealth Government Employees) Act 1971. Questions of law have arisen in the proceedings and pursuant to 5.45(1) of the Administrative Appeals Tribunal Act 1975 and Order 50, rule 1 of the Federal Court Rules those questions have been referred , for decision to this Court. In order to understand the questions for decision, it is necessary to refer briefly to the facts which have given rise to the proceedings in the Tribunal. On 31 December 1976 2. the respondent was employed by the Commonwealth as a tea attendant with the Department of Treasury/Finance. On that date she had an accident at work. She sued the Commonwealth in the Supreme Court of the Australian Capital Territory for damages for personal injuries which she alleged she had sustained in the accident. In her statement of claim she alleged that the Commonwealth was negligent in that it was in breach of ats duty to her in a number of respects. The proceedings in the Supreme Court were heard by Gallop J. He was not satisfied that the respondent had established that there had been any breach by the Commonwealth of any duty of care towards her and accordingly entered judgment for the Commonwealth. However, in case an appellate court might take a different view on liability, he proceeded to assess damages. In the course of making that assessment his Honour made several findings, uncluding a finding that any condition of the respondent's back had no causal relationship with the accident, and a further finding that by 13 December 1978 the respondent was fit to return to her duties as a tea attendant. Several determinations have been made in relation to the respondent's claim for compensation under the Compensation (Commonwealth Government Employees) Act. One such determination was made on 3 April 1986 in which it was found that the back condition suffered by the respondent was not the result of personal injury arising out of or in the course of her employment on 31 December 1976 and that on and from 3. 13 December 1978 the respondent had been fit to undertake the duties of a tea attendant. The respondent sought a review by the Administrative Appeals Tribunal of the determination made on 3 April 1986. Upon the hearing of the review the Tribunal decided, contrary to submissions put to it by the Commonwealth, that the respondent's application was not barred by issue estoppel or res judicata. Thereupon the following questions were referred to this Court for decision: "Whether the respondent in the proceedings in the Administrative Appeals Tribunal on a review of a decision relating to a claim under the Compensation (Commonwealth Government Employees) Act 1971 is precluded by the rule relating to issue estoppel from contending the contrary of the following findings made by the Supreme Court of the Australian Capital Territory on 18th October 1985: (1) any condition of the respondent/plaintiff's back has no causal relationship to the accident; (2) by 13 December 1978 the respondent/plaintiff was fit to return to her duties as a tea attendant." The mere circumstance that a finding of fact has been made in earlier proceedings between parties does not lead to the result that there is an issue estoppel as to that fact in later proceedings between the same parties. An issue estoppel will only arise in relation to what Dixon J. (as he then was) described in Blair v Curran (1939) 62 CLR 464 at 532 as "those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established". In the following passage in his judgment which has often been referred 4. to with approval (see, for example, Port of Melbourne Authority v Anshun Pty. Limited (1981) 147 CLR 589 at 597-8), Dixon 3. said (at pp.531-2): "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, .... mt. 1. "Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the 1ssue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived." In Lombardo v Stuart Bros. Pty. Limited (1967) 2 NSWR 39 at 40 Walsh J.A. (as he then was), following Blair v Curran, described estoppel as arising only in relation to "facts fundamental to the decision". See also Penn-Texas Corporation v Murat Anstalt (No. 2) (1964) 2 QB 647 at 660 where Lord Denning M.R. observed that a previous judgment between the same parties is only conclusive on matters which were "essential and necessary" to the decision, and is not conclusive on "other matters which came incidentally into consideration in the course of the reasoning." As Fullagar J. pointed out in Brewer v Brewer (1953) 88 CLR 1 at p.15, issue estoppel applies only as to issues. It Mee eee ee is true that in the proceedings before Gallop J. there was an issue as to damages in the sense that such an issue would have arisen for decision if his Honour had found for the respondent (the plaintiff in the proceedings before him) on the question of liability. But having reached the conclusion that there should be judgment for the Commonwealth in those proceedings because no breach of duty was shown, it was unnecessary for Gallop a. to decide the issue of damages. What he said in his judgment on the question of damages was no more than the expression of opinions for the benefit of an appellate court, should an appeal against his finding on liability succeed. His Honour's particular findings, if they be described as such, on questions of damage were not relevant, let alone fundamental, to the only issue which he decided. In no sense were they findings in relation to "facts fundamental" to Gallop J's decision (cf Lombardo, supra, at p.40), nor were they findings which his decis1on "necessarily established as the legal foundation or justification" of his conclusion (cf Blair v Curran, supra, at p. 531). The decision in James v The Commonwealth (1935) 52 CLR 570 is consistent with our conclusion that no estoppel arises from Gallop J.'s findings on damages. In James' Case an action was brought to impugn the validity of the Dried Fruits Act 1928. In a previous action (see James v The Commonwealth (1928) 41 CLR 442) the plaintiff attacked the validity of the legislation on the same ground, namely, inconsistency with s,92 of the Constitution. The previous action succeeded on another ground. It was held in the second action that, although the 6. Court had found against the plaintiff on the s.92 argument in the previous action, he was not estopped from again raising that argument. In James' Case the finding which was claimed to give rise to the estoppel was, of course, a finding of law, not a finding of fact as in the present case. Counsel for the Commonwealth submitted that the respondent could have applied to Gallop J. for separate hearings on the questions of liability and damage and that, not having made such an application, the respondent was bound by his Honour's findings on matters of damage. Mraz v The Queen (No. 2) (1956) 96 CLR 62 was relied upon in this respect. Mraz was a criminal case. We note in passing that the High Court has since divided on the question whether issue estoppel has any application in relation to criminal cases: The Queen v Storey (1978) 140 CLR 364. The majority thought that, although the doctrine was applicable in some cases, its application was limited. Be that as it may, counsel for the Commonwealth relied upon the dictum in the joint judgment in Mraz in which it is said (p. 69), "It is enough that an issue or issues have been distinctly raised and found. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against the other". Reference was also made to what was later said (p. 70) concerning the trial of a separate issue, namely, that the parties may agree to suspend, defer or otherwise eliminate a 7. necessary issue and then it is not covered by the determination. On the basis of these two dicta it was contended that, because the damages issue might have been "hived off" pending the determination of the issue of liability but was not, the parties were bound by his Honour's findings in relation to damage just as they were in relation to his findings on the question of liability, the issues arising in relation to the question of damages having been "distinctly raised and found". It 1s clear that nothing said in Mraz was intended to affect the principle propounded in Blair v Curran (62 CLR at p.532) that nothing but what is legally undispensable to the conclusion is finally closed or precluded. When the judges in Mraz used the expression "distinctly raised and found", they were using "found" in relation to a matter which was legally indispensable to the conclusion which had been reached. The only matter falling into that category in the present case was the question whether the Commonwealth was in breach of the duty of care which 1t owed the respondent. No matter related to the damage suffered by the respondent was connected therewith. The submission based on _Mraz is, accordingly, rejected. For the reasons we have given, the respondent is not precluded by the rule relating to issue estoppel from contending to the contrary of any finding made by Gallop J. on the question of damages. Counsel for the respondent submitted that there 1s no room for the application of the principle of issue estoppel in proceedings before the Administrative Appeals Tribunal because the principle 1s a rule of evidence and the Tribunal is not bound by the rules of evidence (s.33 of the Administrative Appeals Tribunal Act). It is true that estoppel is referred to as a rule of evidence in some of the decided cases: see, for example, Low v Bouverie (1891) 3 Ch. 82, at 105 per Bowen L.J.; Humphries v Humphries (1910) 2 K.B. 531 at 536 per Farwell L.J.; Marginson v Blackburn Borough Council (1939) 2 K.B. 426 at 436 per Slesser L.J. and Discount & Finance Ltd v Gehrig's NSW Wines Ltd (1940) 40 S.R. (NSW) 598 at p. 603 per Jordan C.J. Certainly, it operates to prevent evidence from being tendered. However, other authority describes estoppel as a rule of law: see Canada & Dominion Sugar Co Ltd v Canadian National (West Indies) Steamship Ltd (1947) A.C. 46 at 56 per Lord Wright; Mills v Cooper (1967) 2 Q.B. 459 at 468-9 per Diplock L.J. (as he then was); Moorgate Mercantile Co Ltd v Twitchings (1976) Q.B. 225 at 241 per Lord Denning M.R. and Queensland v The Commonwealth (1977) 139 CLR 585 at 614-615 per Aickin J. The problem was adverted to by this Court in Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 where Fisher and Lockhart JJ. said (p.654):- "Issue estoppel, generally but not universally seen as a rule of evidence, can not have any place in proceedings of the Tribunal and is, to the extent that it is a rule of evidence, expressly excluded by the provisions of s.33 of the Administrative Appeals Tribunal Act. Sub-section 33(1)(b) irecting that proceedings should be conducted as far as possible with little formality and 9. technicality and sub-s.33(1)(c) to the effect that the Tribunal is not bound by the rules of evidence would appear conclusively to point to exclusion of the doctrine." If the view 1s taken that issue estoppel is a rule of law (which may now be the more acceptable view), that would not conclude the matter, as 1s apparent from what was said by their Honours, because of the administrative nature of the Tribunal and the provisions of s. 33(1)(b) of the Administrative Appeals Tribunal Act which directs the Tribunal to conduct its proceedings, so far as possible, without formality and technicality. A finding by an administrative tribunal will not give rise to an issue estoppel. In W.J. & F. Barnes Pty Limited v Federal Commissioner of Taxation (1957) 96 CLR 294, Kitto J. said (p.315) that a taxation board of review's decision was not an adjudication; it was administrative in character and could not create an issue estoppel. The question 1s not a straightforward one and it was not fully argued before us. Because of our view that the judgment of Gallop J. did not give rise to any relevant issue estoppel, it is unnecessary to decide the point and, accordingly, we express no view upon it. In the result both questions in the stated case should be answered in the negative. The Commonwealth must pay the respondent's costs of the case. rw sé Counsel for applicant: Counsel instructed by: for respondent: Date of instructed by: Hearing: Date of Judgment: 10. I certify that this and the nine (9) preceding pages are a true copy of the Reasons for Judgment of the court. Associate: fh Lemond Date: 31 March 1988 B. Sully Q.C. with M. Holmes Australian Government Solicitor J. Basten with T. Lynch John Faulks & Co. 23 February 1988 31 March 1988