Attorney-General (ACT) v Eastman
[2008] ACTCA 6
•21 April 2008
ATTORNEY-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY v DAVID HAROLD EASTMAN
[2008] ACTCA 6 (21 APRIL 2008)
PRACTICE AND PROCEDURE – Application for leave to appeal out of time – delay.
ESTOPPEL – Issue estoppel – findings adverse to ultimately successful party – findings ancillary to ultimate result – jurisdiction not defined by issue estoppel – estoppel by convention.
Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 3(3), 3A(2), 19
Crimes Act 1900 (ACT) s 475
Court Procedures Rules 2006 (ACT) r 5405
Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Company Ltd (2006) 199 FLR 91 cited
Arrow Pharmaceuticals Ltd v Merck & Co, Inc (2004) 213 ALR 182 cited
Australian Capital Territory v Cavanagh (2004) 185 FLR 455 cited
Blair v Curran (1939) 62 CLR 464 followed
Bristol-Myers Squibb Company v FH Faulding & Co Limited (2000) 97 FCR 524 questioned
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853 referred to
Con-Stan Industries of Australia Proprietary Limited v Norwich Winterthur Insurance (Australia) Limited (1986) 160 CLR 226 followed
D.S.V. Silo-und Verwaltungsgesellschaft M.B.H. v Owners of The Sennar and 13 other ships [1985] 1 WLR 490 applied
Director of Public Prosecutions of the Australian Capital Territory v Eastman (2002) 130 A Crim R 588 cited
Director of Public Prosecutions of the Australian Capital Territory v Eastman (2002) 118 FCR 360 cited
Eastman v The Attorney-General for the Australian Capital Territory (2007) 210 FLR 440 cited
Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318 cited
Eastman v Higgins (2007) 210 FLR 464 cited
Eastman v Miles (2006) 199 FLR 217 cited
Eastman v Miles [2006] ACTSC 57 cited
Eastman v Miles (2007) 210 FLR 417 discussed
Eastman v Minister for Corrective Services (2004) 181 FLR 447 cited
Eastman v The Queen (1997) 76 FCR 9 cited
Eastman v The Queen (2000) 203 CLR 1 cited
EI Du Pont de Nemours & Co v Imperial Chemical Industries PLC (2007) 73 IPR 460 considered
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 236 ALR 209 cited
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1 considered
Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537 referred to
Inre State of Norway’s Application (No. 2) [1990] 1 AC 723 considered
Jackson v Goldsmith (1950) 81 CLR 446 referred to
James v The Commonwealth (1935) 52 CLR 570 followed
James v The Commonwealth (1936) 55 CLR 1 referred to
Jess v Scott (1986) 12 FCR 187 discussed
Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 discussed
Murphy v Abi-Saab (1995) 37 NSWLR 280 considered
National Westminster Finance NZ Ltd v National Bank of NZ Ltd [1996] 1 NZLR 548n applied
Penn-Texas Corporation v Murat Anstalt (No 2) [1964] 2 QB 647 referred to
Pratten v Warringah Shire Council (1969) 90 WN (Pt 1) (NSW) 134 referred to
Quanta Software International Pty Ltd v Quanta Systems Ltd [2004] FCA 1182 cited
Queensland Independent Wholesalers Limited v Coutts Townsville Pty Ltd [1989] 2 Qd R 40 followed
Rogers v The Queen (1994) 181 CLR 251 considered
Taylor v Ansett Transportation Industries Ltd (1987) 18 FCR 342 followed
Thompson v Palmer (1933) 49 CLR 507 applied
Thomson Australian Holdings Proprietary Limited v Trade Practices Commission (1981) 148 CLR 150 referred to
Tiufino v Warland (2000) 50 NSWLR 104 cited
Handley KR, Estoppel by Conduct and Election (Thomson, 2006)
Heydon JD, Cross on Evidence (7th Australian Edition, LexisNexis Butterworths, 2004)
Spencer Bower G, Turner AK & Handley KR, The Doctrine of Res Judicata (3rd ed, Butterworths, 1996)
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 14-2006
No. SC 110 and 174 of 2002
Judges: Moore, Stone and Dowsett JJ
Court of Appeal of the Australian Capital Territory
Date: 21 April 2008
IN THE SUPREME COURT OF THE ) No. ACTCA 14-2006
) No. SC 110 and 174 of 2002
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: ATTORNEY-GENERAL OF THE AUSTRALIA CAPITAL TERRITORY
Applicant
AND: DAVID HAROLD EASTMAN
First Respondent
AND: THE HONOURABLE JEFFREY ALLAN MILES
Second Respondent
AND: IAN PIKE
Third Respondent
AND: DIRECTOR OF PUBLIC PROSECUTIONS (ACT)
Fourth Respondent
ORDER
Judges: Moore, Stone & Dowsett JJ
Date: 21 April 2008
Place: Canberra
THE COURT ORDERS THAT:
The application be dismissed with costs.
IN THE SUPREME COURT OF THE ) No. ACTCA 14-2006
) No. SC 110 and 174 of 2002
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: ATTORNEY-GENERAL OF THE AUSTRALIA CAPITAL TERRITORY
Applicant
AND: DAVID HAROLD EASTMAN
First Respondent
AND: THE HONOURABLE JEFFREY ALLAN MILES
Second Respondent
AND: IAN PIKE
Third Respondent
AND: DIRECTOR OF PUBLIC PROSECUTIONS (ACT)
Fourth Respondent
Judges: Moore, Stone & Dowsett JJ
Date: 21 April 2008
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
On 10 January 1989, Colin Winchester, an Assistant Commissioner of the Australian Federal Police, was shot and killed in the driveway of his home in Deakin. On 3 November 1995, David Harold Eastman was convicted of his murder. Mr Eastman’s persistent efforts to challenge this conviction have led to numerous court proceedings, including those in Eastman v The Queen (1997) 76 FCR 9, Eastman v The Queen (2000) 203 CLR 1, Director of Public Prosecutions of the Australian Capital Territory v Eastman (2002) 130 A Crim R 588, Director of Public Prosecutions of the Australian Capital Territory v Eastman (2002) 118 FCR 360, Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318, Australian Capital Territory v Cavanagh (2004) 185 FLR 455, Eastman v Minister for Corrective Services (2004) 181 FLR 447, Eastman v Miles (2006) 199 FLR 217, Eastman v Miles [2006] ACTSC 57, Eastman v Higgins (2007) 210 FLR 464, Eastman v Attorney-General for the Australian Capital Territory (2007) 210 FLR 440 and Eastman v Miles (2007) 210 FLR 417.
The matter presently before the Court, ACTCA 14 of 2006, is an application for leave to appeal out of time from a judgment in another proceeding, namely that of Gray J in Eastman v Miles (2004) 181 FLR 418, which was handed down on 25 May 2004. It was heard by the Court of Appeal together with Mr Eastman’s appeals from the last two of the judgments referred to in [1] above. Those two appeals are referred to in these reasons by their court numbers ACTCA 13 of 2007 and ACTCA 14 of 2007.
For present purposes, much of the complex procedural history hinted at above can be disregarded. The circumstances relevant to this application are comparatively simple. However, we should emphasise at the outset that the application for leave to appeal out of time is made by the Attorney-General in circumstances where the Attorney-General was successful before Gray J, in the sense that his Honour dismissed the application by Mr Eastman. There is potentially an issue of substance about whether any appeal could be brought by the Attorney-General against that judgment if time was extended. This application, however, provides a convenient means of discussing an issue arising in both these proceedings and in ACTCA 14 of 2007. For reasons which will emerge shortly, it is unnecessary for us to decide whether any appeal would be competent, if time was extended.
Section 475
At the relevant time, s 475 of the Crimes Act 1900 (ACT) provided that:
(1) Whenever, after the conviction of a prisoner, any doubt or question arises as to his or her guilt, or any mitigating circumstance in the case, or any portion of the evidence therein, the Executive, on the petition of the prisoner, or some person on his or her behalf, representing such doubt or question, or a judge of the Supreme Court of his or her own motion, may direct any magistrate to, and such magistrate may, summon and examine on oath all persons likely to give material information on the matter suggested.
(2) The attendance of every person so summoned may be enforced, and his or her examination compelled, and any false statement wilfully made by him or her shall be punishable in like manner as if he or she had been summoned by, or been duly sworn and examined before, the same magistrate, in a case lawfully pending before him or her.
(3) Where on such inquiry the character of any person who was a witness on the trial is affected thereby, the magistrate shall allow such person to be present, and to examine any witness produced before such magistrate.
(4) Every deposition taken under this section shall be stated in the commencement to have been so taken, and in reference to what case, and in pursuance of whose direction, mentioning the date thereof, and shall be transmitted by the magistrate, before whom the same was taken, as soon as shall be practicable, to the Executive if the inquiry was directed by him or her, or to the judge directing the inquiry, and the matter shall be disposed of, as to the Executive, on the report of such judge, or otherwise, shall appear to be just.
Following his conviction, Mr Eastman made a number of approaches to the then Chief Justice of the Supreme Court, Miles CJ, seeking to have his Honour exercise his powers under s 475(1) to direct an inquiry. For reasons that will become apparent, the learned trial judge described Miles CJ’s responses to these various approaches as “advices”, a terminology we gratefully adopt. Justice Gray’s narrative forms the basis of what follows.
Miles CJ’s advices
By an application dated 31 May 2001, Mr Eastman requested that a s 475 inquiry be established to investigate questions of his fitness to plead, complaints relating to the conduct of the Australian Federal Police, the possible involvement of organised crime in Assistant Commissioner Winchester’s murder, and doubts about the forensic evidence given by Mr Robert Barnes at the trial. Miles CJ’s first advice was given on 28 June 2001. It conveyed to Mr Eastman that his Honour had been unable to determine whether a doubt or question arose in relation to Mr Eastman’s fitness to plead, but that no inquiry would be directed on the remaining three issues that Mr Eastman had raised.
Miles CJ arranged for a preliminary hearing to be conducted on Mr Eastman’s fitness to plead. This took place on 12 July 2001. On 7 August 2001, his Honour gave his second advice, in which he proposed to direct a magistrate to conduct an inquiry into Mr Eastman’s fitness to plead during his trial. His Honour did not include within the scope of that inquiry Mr Eastman’s allegations that his fitness to plead had been affected by misconduct on the part of the Australian Federal Police.
On 10 August 2001, Mr Eastman made further requests that s 475 inquiries be directed concerning the evidence given at his trial by Mr Barnes and Mr Raymond Webb. Mr Eastman supported his applications by reference to documents prepared by Dr James Wallace. On 17 August 2001, the Registrar of the Supreme Court gave Mr Eastman the third advice. It informed him that Miles CJ did not consider Dr Wallace’s material to have raised a doubt or question sufficient to direct an inquiry into Mr Barnes’ evidence.
On 27 August 2001, Mr Eastman again wrote to Miles CJ, and renewed his request for a s 475 inquiry concerning the evidence of Mr Barnes and Mr Webb. On 17 September 2001, the Registrar provided Mr Eastman with the fourth advice, informing him that his application had been forwarded to the Attorney-General.
Mr Eastman seeks review of Miles CJ’s advices
Mr Eastman’s attempts to seek review of Miles CJ’s advices formed the basis of the proceedings before Gray J, and are therefore at the root of the current application. His Honour’s judgment describes the somewhat convoluted route by which the issues before him were refined at [19] – [29]; 181 FLR 424-427. Essentially, Mr Eastman sought review of each of the advices insofar as they declined to direct a s 475 inquiry into the matters he had raised.
At the pertinent time, s 3(3) of the Administrative Decisions (Judicial Review) Act 1989 (ACT) provided that:
Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall be taken, for the purposes of this Act, to be the making of a decision.
Although subsection 3(3) was subsequently repealed, a similar provision now appears in s 3A(2).
It is unnecessary for present purposes to venture too far into the detailed reasoning of Gray J. The Attorney-General, an intervenor pursuant to s 19 of the ADJR Act, argued that Mr Eastman’s application was incompetent, as Miles CJ’s advices could not constitute decisions to which the ADJR Act applied. His Honour addressed this argument in [37] of his judgment, reported at 181 FLR 429-430.
The Attorney-General in his submissions, says that there is no "link" which he says s 3(3) of the ADJR Act requires between the making of a report by a judge and any decisions which might or might not be subsequently made by the Executive. Accordingly, it is submitted that the making of such a report is not a decision to which the ADJR Act applies. In support of this submission, the observations of Ellicott J in Ross v Costigan (No.2) (1982) 59 FLR 184 in considering that the report of a Royal Commissioner was not a reviewable decision under s 3(3) of the Commonwealth Act, were cited. Ellicott J observed (at 332) -
It was argued that because of the provisions of s 3(3) of the Act the making of a report and recommendation pursuant to the letters patent is "a decision" and that combined with s 3(5) the conduct of the respondent to which I have referred is conduct engaged in or proposed to be engaged in for the purpose of making that decision.
I do not think that s 3(3) has that effect in this case. In my view it contemplates a case where there is provision in an enactment for a specific report or recommendation as a condition precedent to the making of a decision under that enactment or some other.
Ellicott J's view was applied in Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 70 by Northrop and Lockhart JJ. In neither case was there provision in the enactment for the ultimate decision-maker to act on the report or recommendation. However, in the present case, s 475 of the Crimes Act 1900 specifically provides for the matter to be disposed of "as to the Executive, on the report of such judge, or otherwise, shall appear to be just". I would agree that the making of the report is not the only condition precedent for the Executive to act (a petition of the prisoner or some person on his or her behalf is another) but it is a condition precedent upon which a decision may be made under the enactment. In my view, that is sufficient to distinguish the cases upon which the Attorney-General relied.
Although Gray J ruled in Mr Eastman’s favour on this point, he went on to dismiss his applications for review. In summary, his Honour held that a decision-maker under s 475 must subjectively “doubt or question” a conviction before the power to direct an inquiry is enlivened. Gray J found that the issues advanced by Mr Eastman forming the subject of the applications for review did not cause Miles CJ subjectively to doubt or question the conviction. Accordingly, his Honour was not empowered to direct an inquiry. Absent any bad faith, there could therefore be no refusal to make a decision for the purposes of the ADJR Act. Although it was not strictly necessary to do so, his Honour went on to consider the grounds of review advanced by Mr Eastman, and found them to be without merit.
The issue resurfaces
As was noted above at [7], Miles CJ did direct that an inquiry be conducted into a question concerning Mr Eastman’s fitness to plead at trial. Dissatisfied with the report that resulted from that inquiry, Mr Eastman sought judicial review, including review under the ADJR Act. Again, the Attorney-General argued, as intervenor, that actions taken under s 475 do not constitute decisions for the purposes of the ADJR Act. In order to forestall any argument that such submissions were estopped by Gray J’s ruling, the Attorney-General filed the present application for leave to appeal out of time from his Honour’s decision. The application was adjourned pending the conclusion of proceedings which were then before Lander J.
On 9 May 2007, Lander J delivered his judgment in those proceedings; Eastman v Miles (2007) 210 FLR 417. Dismissing Mr Eastman’s application, his Honour made the following observations at [71] – [75]:
I do not agree, with respect, with Gray J’s reasons for two reasons. First, s 3A(2) of the ADJR Act and s 3(3) of the Commonwealth Act only apply where the making of the report is a condition precedent to the making of a decision. It may not be the only condition precedent to the making of a decision but it must be a condition precedent. If, as in this case under s 475(4), it is not necessarily a condition precedent then, in my opinion, s 3A(2) of the ADJR Act has no application. Secondly, s 475(4) does not require any decision to be made by the Executive. In those circumstances, any report which is made and furnished to the Executive, which itself may not make a decision, could not, by virtue of the Act, be deemed to be the decision of the Executive because no decision may be made by the Executive.
For those two reasons, I do not agree with the point of distinction made by Gray J and I think, with the greatest respect to his Honour, the decision to be wrong.
In my opinion, s 3A(2) of the ADJR Act has no application to s 475(4) of the Crimes Act and so it follows, in my opinion, the ADJR Act has no application to any report of a judge made after receiving from a magistrate the material information requested under s 475(1).
However, notwithstanding my opinion, Gray J’s decision stands and the intervenor accepts it is arguable that it may give rise to an issue estoppel between the parties: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342. Indeed, the intervenor has applied for leave to appeal from Gray J’s decision, out of time, but that application has been adjourned pending the conclusion of these proceedings.
Even though I think Gray J’s decision to be wrong, I do not think it would be appropriate to dismiss this application upon the ground advanced by the intervenor until such time as Gray J’s decision is considered on appeal if, in fact, leave is granted.
As was noted above, Lander J’s decision is the subject of appeal in ACTCA 14 of 2007, which was heard with this application. The Attorney-General has made this late application for an extension of time in which to appeal from Gray J’s judgment in order to avoid any issue estoppel arising from that decision that would limit the arguments in ACTCA 14 of 2007. It is therefore convenient to address the question of whether any issue estoppel arises before turning to the question of whether leave should be granted.
Issue estoppel
We should note at the outset that the question whether Gray J’s decision gives rise to an issue estoppel is separate from whether we agree with his Honour’s decision. A decision may give rise to an issue estoppel even though it is liable to be reversed on appeal; see Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 per Fisher J at 354, with whom Ryan J agreed at 365.
Higgins J is credited with coining the term “issue estoppel” in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537 at 561, although his Honour was drawing upon earlier British authorities in defining the concept. Dixon J provided a lucid exposition of issue estoppel in Blair v Curran (1939) 62 CLR 464 at 531-532:
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, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
This formulation has been repeatedly cited and approved; see EI Du Pont de Nemours & Co v Imperial Chemical Industries PLC (2007) 73 IPR 460 at 473 and the cases there cited.
Estoppel arising from findings against a successful party
A leading text in this field, Spencer Bower, Turner & Handley’s The Doctrine of Res Judicata (3rd ed, Butterworths, 1996), states at [205] that:
A decision of fact or law against the party who succeeded will not found an estoppel because it cannot be fundamental to the decision. It would be unjust to make such a decision the foundation of an estoppel, for no appeal is available to the person against whom it was given.
[citations omitted]
A similar passage appeared in the second edition of that work which was extracted with approval by Balcombe LJ in Inre Norway’s Application (No. 2) [1990] 1 AC 723 at 752.
In Heydon JD, Cross on Evidence (7th Australian Edition, LexisNexis Butterworths, 2004 at 206), Norway’s Application (No 2) is cited as authority for the proposition that an issue estoppel cannot arise from a decision of fact or law against a party who is successful in the proceedings “because it cannot have been necessary for the substantive decision”. The issue has not received extensive judicial consideration in this country however, in Bristol-Myers Squibb Company v FH Faulding & Co Limited (2000) 97 FCR 524 at 571-573, Finkelstein J questioned the reasoning in Norway’s Application (No 2) and in the similar case of Penn-Texas Corporation v Murat Anstalt (No 2) [1964] 2 QB 647 in so far as they concerned issues of law decided between the parties in earlier cases; see [26] below. His Honour stated at 573
… there is no reason in logic to draw a distinction between a case where a judge decides two points of law in favour of one party that support the order made in favour of that party (where both rulings of law are part of the ratio) and a case where a judge decides one of those points against the party in whose favour the order is made.
In James v The Commonwealth (1935) 52 CLR 570 at 584, Rich J discussed the situation of a plaintiff who had unsuccessfully challenged the validity of legislation but been successful on another ground, and sought in fresh proceedings to relitigate his attack on validity:
Although the Court ruled that he was wrong upon his first ground he is not estopped, because the decision passed in his favour. He could not appeal from the Court’s ruling. It was so to speak a ruling in the air so far as he was concerned.
See also Starke J at 588, Dixon J at 591 and Evatt and McTiernan JJ at 593-594. Although the High Court’s decision was reversed by the British Privy Council, there was no appeal in respect of the estoppel issue; see James v The Commonwealth (1936) 55 CLR 1 at 37.
A similar view was expressed by Gleeson CJ, with whom Kirby P and Rolfe A-JA agreed at 292, in Murphy v Abi-Saab (1995) 37 NSWLR 280. His Honour held at 288 that:
Since finality of litigation is a primary object of the principle underlying issue estoppel, it would be incongruous if the doctrine operated so as to force a litigant to appeal in order to displace part of the reasoning of a court whilst having no intention, and perhaps no hope, of displacing the judgment.
See also Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 per Doyle CJ at 94 with whom Matheson and Olsson JJ agreed at 98. Despite Finkelstein J’s criticism in Bristol-Myers v FH Faulding the preponderance of authority in Australia is in favour of the proposition from Cross on Evidence referred to in [20] above.
The Attorney-General seeks to argue, perhaps paradoxically, that there is no issue estoppel but that an appeal can be brought from the judgment of Gray J. It is said that an appeal can be brought because the order made by Gray J was that the applications of Mr Eastman be dismissed whereas the order should have been that the applications be dismissed "as incompetent". No authority could be identified which demonstrates that the addition of those words alters or adds to the legal effect of a bare order dismissing the application. Whether an appeal can be brought has been said to be a practical test for determining if a decision on a point is fundamental so as to give rise to an issue estoppel: see the observations of Gleeson CJ in Murphy v Abi-Saab at 288. If an appeal cannot be brought in the present matter (the view we presently favour) there would clearly be no issue estoppel on the basis presently being discussed but leave would have to be refused. If on the other hand, an appeal could be brought that is not the end of the matter. That is because, as we shortly discuss, the public policy underlying the principle of issue estoppel, namely to bring finality to litigation, is obviously not achieved by forcing a party to appeal against an order which, in practical effect, is in that party's favour.
In this matter, the Attorney-General was successful below at least in the sense that he persuaded Gray J to dismiss the application. Although it is now contended that an appeal is possible, at trial counsel for the Attorney-General conceded that, at the time, it would have been “absurd” to launch an appeal from Gray J’s judgment. In accordance with the authorities discussed above, we think the better view is that, having regard to the public policy underpinning the principal of issue estoppel, no issue estoppel has arisen against the Attorney-General. That conclusion is fortified by the discussion which follows.
Estoppel arising from ancillary findings
Even if it is not the case that the ultimate success of a party prevents an issue estoppel arising from findings adverse to them made in an earlier proceeding, a similar consequence follows from a related principle, namely that no estoppel arises from a decision that is ancillary to the ultimate result. In Mitsubishi Motors v Harbord at 94, Doyle CJ, citing the passage from Gleeson CJ’s judgment in Murphy v Abi-Saab extracted above, drew the following link between the two principles:
I take him to mean that it would be unjust if a party, in whose favour the court decided, was estopped as to issues decided against that party. It could be unjust because that party, having an ultimate judgment in the party's favour, was unable to appeal and to challenge the adverse findings made. Perhaps the explanation for the outcome is simply that the fact that the party obtained a judgment despite the adverse finding indicates that the finding could not have been essential to the decision reached.
In Blair v Curran at 532, Dixon J discussed the principle that an estoppel only arises from the essential elements of a decision:
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-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.
His Honour went on to note at 533 that:
The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order.
As was mentioned above, Finkelstein J has questioned the utility and the logic of distinguishing between findings said to be essential to the ultimate result and those said to be ancillary. In Bristol-Myers v FH Faulding at 573, his Honour suggested that:
a more satisfying approach would be to discard the broad view…that a ruling can only be treated as ratio if it supports the ultimate order of the court and in its place adopt the principle that the ratio of a case is any ruling on a point of law that is put in issue by the parties, usually through their pleadings, and which the judge decides that he should resolve … If this is too broad a proposition then, at a minimum, I would hold that the ratio of a case should at least include every ruling on a point of law that is treated by the judge as a necessary step in reaching his ultimate conclusion in a case whether or not that ruling is in favour of or against the party who obtains an order or judgment…
Finkelstein J’s view has received some support; see Arrow Pharmaceuticals Ltd v Merck & Co, Inc (2004) 213 ALR 182 per Gyles J at 216. Irrespective of the desirability or otherwise of adopting his Honour’s view, in the face of the long-established authority of Blair v Curran this is not an appropriate course for an intermediate court of appeal; see Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 236 ALR 209 at 252.
Gray J’s decision that a s 475 report may be reviewable under the ADJR Act was not “fundamental or cardinal” to his Honour’s finding that Mr Eastman’s applications should be dismissed. As noted above at [13], his Honour dismissed Mr Eastman’s applications on entirely independent grounds. Therefore, no estoppel arises from that decision.
Estoppel arising from findings as to jurisdiction
29. In ruling that the Supreme Court had jurisdiction under the ADJR Act to review actions taken under s 475, Gray J made a determination as to the extent of the Court’s jurisdiction. In oral argument, counsel for the Attorney-General submitted that where there is a question as to the Court’s statutory jurisdiction, the matter cannot be decided by issue estoppel.
30. In support of this submission, the Attorney-General cited the following passage from [16-018] of another of Handley J’s extra-judicial writings, Estoppel by Conduct and Election (Thomson, 2006):
If the jurisdiction of a court or tribunal is defined or restricted by statute it cannot be enlarged or diminished by an estoppel unless that is permitted by the statute.
This proposition is supported by reference to several English authorities. A similar principle was asserted by Street J in the Supreme Court of New South Wales; see Pratten v Warringah Shire Council (1969) 90 WN (Pt 1) (NSW) 134 at 144.
31. The Attorney-General referred to Jackson v Goldsmith (1950) 81 CLR 446, in which Fullagar J at 466 classified issue estoppel as “a true case of estoppel, analogous to estoppel by deed and estoppel by representation”. The Attorney-General also relied on the joint judgment of Gibbs CJ, Stephen, Mason and Wilson JJ in Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission (1981) 148 CLR 150, which held, at 163, that “parties by consent cannot confer power upon the Court to make orders which the Court lacks power to make.” It should be noted that Fullagar J’s characterisation was questioned by Deane and Gaudron JJ in Rogers v The Queen (1994) 181 CLR 251, who at 274 preferred to see issue estoppel as a manifestation of broad policy considerations.
32. The Attorney-General’s submission is contrary to the position taken by Fisher J in Taylor v Ansett at 350-354. There his Honour characterised a submission that a decision given without jurisdiction could not found an estoppel as “a collateral attack upon the judgment”. Ryan J agreed with Fisher J’s analysis of the issue estoppel questions in that case at 365, although the Attorney-General contended that his Honour’s concurrence was on a narrow basis that made the present case distinguishable. The Attorney-General submitted that, in any event, Fisher J was in error.
Neither the correctness of Taylor v Ansett nor the broader submission that no estoppel can arise from a finding as to jurisdiction were raised in the Attorney-General’s written submissions. It cannot be said that either point was fully argued before us. A complete examination of the point would likely require an exploration of the correctness of Gray J’s ruling in order to determine if his Honour was acting outside of his jurisdiction. For the reasons set out above, it is clear that no issue estoppel arises from Gray J’s ruling. As such, it is not necessary for this Court to consider this point further.
Would an issue estoppel be available in ACTCA 14 of 2007?
In EI Du Pont de Nemours & Co v Imperial Chemical Industries PLC at 473, Weinberg and Stone JJ endorsed a tripartite formulation of the requirements for an issue estoppel that had first been expressed by Lord Brandon of the English House of Lords in D.S.V. Silo-und Verwaltungsgesellschaft M.B.H. v Owners of The Sennar and 13 other ships [1985] 1 WLR 490 at 499. His Lordship, drawing on Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853, held, at 499, that:
The first requirement is that the judgment in the earlier action relied on as creating an estoppel must be (a) of a court of competent jurisdiction, (b) final and conclusive and (c) on the merits. The second requirement is that the parties (or privies) in the earlier action relied on as creating an estoppel, and those in the later action in which that estoppel is raised as a bar, must be the same. The third requirement is that the issue in the later action, in which the estoppel is raised as a bar, must be the same issue as that decided by the judgment in the earlier action.
Addressing Lord Brandon’s requirements in order, there is no dispute that Gray J’s judgment was made by a court of competent jurisdiction and was made finally and conclusively on the merits of Mr Eastman’s applications. There are some differences between the parties to the actions. Before Gray J, the parties were Mr Eastman, Miles CJ, the Director of Public Prosecutions, the Attorney-General of the ACT and Mr Ian Pike. Mr Pike is a former magistrate of the ACT who was nominated by the Chief Magistrate of the ACT to summon and examine relevant persons on oath. As it happened, Mr Pike’s commission as a magistrate expired before he had examined any witnesses and another magistrate was appointed for that purpose.
Neither the Director of Public Prosecutions nor Mr Pike is a party to ACTCA 14 of 2007, however as Fisher J said in Taylor v Ansett at 357, the question is “the identity of the parties to the issue and not the proceedings”. Both before Gray J and in ACTCA 14 of 2007, the dispute as to reviewability lies between Mr Eastman and the Attorney-General. Finally, the issue in ACTCA 14 of 2007 and in Gray J’s judgment is the same, namely whether a report under s 475 is capable of constituting a “decision” for the purposes of the ADJR Act.
A superior court can be bound by an issue estoppel arising from a judgment of a court lower in the judicial hierarchy; Tiufino v Warland (2000) 50 NSWLR 104 per Handley JA at 110, with whom Mason P agreed at 105 and Powell JA agreed at 114. If Gray J’s decision gave rise to an issue estoppel, Mr Eastman would rely on that estoppel in ACTCA 14 of 2007. For the reasons set out above, however, it is our view that no issue estoppel is available.
A further possibility: estoppel by convention
During the hearing of the appeals, it was suggested that an estoppel by convention might bind the Attorney-General. In Con-Stan Industries of Australia Proprietary Limited v Norwich Winterthur Insurance (Australia) Limited (1986) 160 CLR 226, the High Court held at 244 that:
Estoppel by convention is a form of estoppel founded not on a representation of fact made by a representor and acted on by a representee to his detriment, but on the conduct of relations between the parties on the basis of an agreed or assumed state of facts, which both will be estopped from denying.
Relevantly, the High Court went on to hold that “there is no estoppel unless it can be shown that the alleged assumption has in fact been adopted by the parties as the conventional basis of their relationship”. In addressing this requirement, it is important to bear in mind the difficulties that Mr Eastman labours under as a self-represented litigant. Nevertheless, Mr Eastman did not present any evidence to support his claim to have assumed that the Attorney-General would not seek to relitigate the question. Indeed, Mr Eastman submitted, on the question of whether leave should be granted, that the Attorney-General should have been aware that the question of reviewability “was bound to resurface, and indeed bound to resurface very, very quickly”.
Even if such an assumption were implied, no estoppel by convention could operate in this case. The High Court in Con-Stan Industries v Norwich Winterthur Insurance, when discussing the origins of estoppel by convention, cited with approval the judgment of Dixon J in Thompson v Palmer (1933) 49 CLR 507, specifically at 547, on which the following passage appears:
The object of estoppel in pais is to prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which, unless the assumption be adhered to, would operate to that other’s detriment. Whether a departure by a party from the assumption should be considered unjust and inadmissible depends on the part taken by him in occasioning its adoption by the other party. He may be required to abide by the assumption because it formed the conventional basis upon which the parties entered into contractual or other mutual relations, such as bailment; or because he has exercised against the other party rights which would exist only if the assumption were correct…; or because knowing the mistake the other laboured under, he refrained from correcting him when it was his duty to do so; or because his imprudence, where care was required of him, was a proximate cause of the other party’s adopting and acting upon the faith of the assumption; or because he directly made representations upon which the other party founded the assumption.
If Mr Eastman had assumed that Gray J’s ruling would not be challenged, it is clear that he would suffer a detriment if the Attorney-General departed from that assumption. That detriment may extend beyond the possibility that Gray J’s finding may be overruled, and that Mr Eastman would thereby lose the opportunity to seek further review of a s 475 report. It may also include the fact that Mr Eastman has been conducting his various litigations on the basis that Gray J’s ruling was unchallengeable. Further evidence on this point would be required.
It is far from clear, however, that it would be unjust for the Attorney-General to depart from any assumption adopted by Mr Eastman. The Attorney-General has neither entered into a relevant relationship with Mr Eastman, nor exercised rights against him which could exist only if no further challenge to Gray J’s ruling were to take place. No legal duty lay on the Attorney-General to correct any such assumption that Mr Eastman may have held. It might be argued that the Attorney-General’s failure to appeal in time from Gray J’s judgment caused Mr Eastman to assume that his Honour’s ruling was secure. Yet, as has been demonstrated above, Gray J’s judgment did not estopp the Attorney-General from challenging the reviewability of s 475 reports in subsequent proceedings. It therefore could not be said that the Attorney-General was imprudent in failing to appeal. There is no evidence that the Attorney-General ever represented to Mr Eastman that Gray J’s ruling would remain unchallenged.
The New Zealand Court of Appeal, having considered the Australian authorities and the academic literature, summarised the requirements for an estoppel by convention in National Westminster Finance NZ Ltd v National Bank of NZ Ltd, a 1993 decision reported at [1996] 1 NZLR 548n at 550:
(1) The parties have proceeded on the basis of an underlying assumption of fact, law, or both, of sufficient certainty to be enforceable (the assumption).
(2) Each party has, to the knowledge of the other, expressly or by implication accepted the assumption as being true for the purposes of the transaction.
(3) Such acceptance was intended to affect their legal relations in the sense that it was intended to govern the legal position between them.
(4) The proponent was entitled to act and has, as the other party knew or intended, acted in reliance upon the assumption being regarded as true and binding.
(5) The proponent would suffer detriment if the other party were allowed to resile or depart from the assumption.
(6) In all the circumstances it would be unconscionable to allow the other party to resile or depart from the assumption.
Finn J adopted this formulation in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1 at 106, with the possible caveat that in Australia the assumptions of law that could ground the estoppel may be limited to those relating to “private legal rights”. Finn J was cited with apparent approval in Quanta Software International Pty Ltd v Quanta Systems Ltd [2004] FCA 1182 per Beaumont J at [92] and Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Company Ltd (2006) 199 FLR 91 per Sanderson C at 107.
It is not necessary to determine whether Australian law limits the estoppel in the manner identified by Finn J, nor is it necessary to determine whether any assumption in this case could be said to relate to “private legal rights”. Aside from the damning absence of evidence relating to the first, second and fourth of the New Zealand Court of Appeal’s criteria, it simply cannot be said that the Attorney-General intended to be legally precluded from challenging Gray J’s ruling. In the circumstances, it cannot be unconscionable for the Attorney-General to do so.
If it is necessary to demonstrate further that no estoppel by convention arose in this case, then reference should be made to Queensland Independent Wholesalers Limited v Coutts Townsville Pty Ltd [1989] 2 Qd R 40. In that case, McPherson J, with whom Andrews CJ and Demack J agreed at 41, held at 46 that:
A course of dealing that is explicable by reference to some other equally plausible assumption inevitably falls short of establishing that the parties accept as the basis of their relations the particular assumption contended for.
In the present case, an assumption that the Attorney-General would seek to reargue the question was at least equally as plausible as an assumption that Gray J’s ruling had been accepted and would go unchallenged. No estoppel by convention operates to prevent the Attorney-General from arguing that Gray J’s decision should be overturned.
Conclusion as to estoppel
As we have concluded that the decision of Gray J does not give rise to an estoppel, the Attorney-General is free to argue in ACTCA 14 of 2007 that Gray J’s judgment was incorrect. It was to guard against being unable to make such an argument in ACTCA 14 of 2007 that the Attorney-General made this application, a reason that disappears in the light of our finding on the estoppel point. This is sufficient reason in itself for us to refuse to countenance such a late application, however even without that reason the delay in making the application would be a significant obstacle to the grant of relief.
Leave to appeal
As noted above, Gray J’s judgment was delivered on 25 May 2004, and the application for leave to appeal was not made until 19 April 2006, almost two years later. The rules of this Court provide that a notice of appeal should be filed no later that 28 days after the date of the order appealed from; r 5405(1)(b) Court Procedures Rules 2006 (ACT). However, the Court of Appeal may at any time “for special reasons” give leave to file a notice of appeal; r 5405(2).
In support of the application for leave, the Attorney-General referred to the decision of the Full Court of the Federal Court in Jess v Scott (1986) 12 FCR 187. In Jess v Scott the Court discussed a similar rule allowing for an extension of time in which to file a notice of appeal in “special circumstances”. The Court emphasised, at 196, that the discretion to extend time should not “become entangled in a web of rules spun out of the Court’s discretionary decisions”, and that each situation should be assessed on its own merits. It observed, however, at 195, that it “would require something very persuasive indeed to justify a grant of leave after, for example, a year”.
It is well established that a significant consideration in deciding whether leave to appeal out of time should be granted is whether such an appeal would be futile. Generally this factor finds expression in the court’s consideration of whether there is any chance of the appeal succeeding however this is not always the case. The Attorney-General advances a single draft ground of appeal, namely that:
His Honour erred in finding at paragraphs 36 and 37 of his reasons that the report of a judge under s 475 of the Crimes Act 1900 was deemed to be a decision by s 3(3) of the Administrative Decisions (Judicial Review) Act 1989 (ACT).
It is our view that an appeal on this ground would be futile. Given the absence of an estoppel, the issue of whether Gray J erred as alleged in the draft notice of appeal can be adequately canvassed in ACTCA 14 of 2007.
This conclusion removes the need to address two questions that would otherwise confront the Court. The first is whether there is any legal difference in the result that would be sought by the Attorney-General on appeal and that obtained from Gray J. The second is whether the Court could entertain Mr Eastman’s suggestion that he would not object to an extension of time for the Attorney-General to appeal against the decision of Gray J, provided that the Attorney-General did not object to an extension of time for him to appeal his conviction on the question of his fitness to plead. The appeal would be futile, and it follows that the Attorney-General will be denied an extension of time.
Costs
There is no reason why the normal rule as to costs should not apply. We note that the second and third respondents will not be seeking the costs of their appearance at the hearing.
Bias
Following the conclusion of the hearing of this application, Mr Eastman forwarded additional submissions to the Court. These submissions are said to be relevant to this application, as well as to ACTCA 13 of 2007 and ACTCA 14 of 2007. In these submissions, Mr Eastman asserts that a comment made from the bench demonstrated a concluded view on an issue indirectly in dispute, leading to an apprehension of bias. The asserted comment related to Mr Eastman’s fitness to plead, an issue that is not relevant to this application. In any event, review of the transcript discloses no comment made in the terms alleged. No apprehension of bias is made out.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 21 April 2008
Counsel for the Applicant: Mr S J Gageler SC, Mr D J C Mossop
Solicitor for the Applicant: ACT Government Solicitor
The First Respondent appeared in person.
Counsel for the Second Respondent: Mr J Harris SC
Solicitor for the Second Respondent: Meyer Vandenberg Lawyers
Counsel for the Third Respondent: Mr J Harris SC
Solicitor for the Third Respondent: Meyer Vandenberg Lawyers
Counsel for the Fourth Respondent: Dr B Boss
Solicitor for the Fourth Respondent: The Director of Public Prosecutions (ACT)
Date of hearing: 11, 12 and 13 July 2007
Date of judgment: 21 April 2008
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