DP World Australia Ltd v Fremantle Port Authority - [2009] WASCA 16

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DP WORLD AUSTRALIA LTD -v- FREMANTLE PORT AUTHORITY [2009] WASCA 16

CORAM: McLURE JA
NEWNES AJA

HEARD: 19 AUGUST 2008

DELIVERED : 16 JANUARY 2009

FILE NO/S: CACV 153 of 2007

BETWEEN: DP WORLD AUSTRALIA LTD
Appellant
AND
FREMANTLE PORT AUTHORITY
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'BRIEN DCJ
Citation  :FREMANTLE PORT AUTHORITY -v- DP WORLD AUSTRALIA LTD [2007] WADC 202
File No  :CIV 710 of 2007

Catchwords:

Practice and procedure - Issue estoppel - Anshun estoppel - Action for damages for personal injury by third party against both owner and operator of crane following collision between crane and truck driven by third party - Owner and operator each held liable in negligence - Contribution proceedings between owner and operator - Liability apportioned 60% to owner and 40% to operator - Subsequent action by owner against operator for damage to crane in the accident - Application by operator for summary judgment - Whether action by owner subject to issue estoppel - Whether Anshun estoppel applies - Relevant principles - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr L A Tsaknis & Mr T E Cocks
Respondent: Mr G R Hancy

Solicitors:

Appellant: Cocks Macnish
Respondent: DLA Phillips Fox

Case(s) referred to in judgment(s):

Blair v Curran (1939) 62 CLR 464
Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287
Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853
Fremantle Port Authority v DP World Australia Ltd [2007] WADC 202
Fremantle Ports v P & O Ports Ltd [2008] WASCA 126
Henderson v Henderson (1843) 3 Hare 100
Kuligowski v Metrobus (2004) 220 CLR 363
Ling v Commonwealth (1996) 68 FCR 180
Mills v Fremantle Ports [2007] WADC 101
Murphy v Abi‑Saab (1995) 37 NSWLR 280
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Rahme v Commonwealth Bank of Australia (Unreported, NSWCA, 20 December 1991)
Ramsay v Pigram (1968) 118 CLR 271
Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581

McLURE JA: I have had the advantage of reading the reasons for judgment of Newnes AJA. I agree that leave to appeal should be granted but the appeal dismissed for the reasons he gives. I wish to make an additional observation on the doctrine of issue estoppel. There may be a number of questions of fact or law that were necessarily established as the legal foundation for the judgment in the Mills action (Mills v Fremantle Ports [2007] WADC 101). If the same issues of fact or law arise for determination in the respondent's action against the appellant in relation to the damage to the crane (respondent's action), the parties will be bound by the findings. However, the appellant was unable to identify any issue of fact or law determined in the Mills action which was capable of being a complete defence to the respondent's action so as to justify the grant of summary judgment.
NEWNES AJA: This is an application for leave to appeal against a decision of O'Brien DCJ in the District Court, dismissing an application by the appellant (defendant) for summary judgment in an action for damages brought against it by the respondent (plaintiff). On 10 December 2007, Pullin JA ordered that the application for leave be heard with the appeal. On the hearing of the appeal, the respondent did not oppose the grant of leave to appeal.

Background

The appeal arises out of an accident at the respondent's Kwinana bulk cargo jetty (the wharf) on 17 October 2002. At the time, the appellant, a stevedoring company, was providing stevedoring services at the wharf for Wesfarmers CSBP Ltd (CSBP). The accident involved a large unloader, or gantry crane, owned by the respondent and used by the appellant to unload fertiliser from ships for CSBP. (The unloader is variously described in the litigation as a 'crane', a 'loader' or an 'unloader'. I will refer to it as an 'unloader'.)
The unloader ran on rails embedded in the wharf and was able to be secured in position by steel pins that were placed through alternate legs of the unloader and into the base of the jetty. The accident occurred when the then unmanned and unsecured unloader was blown by strong winds along the wharf, colliding with a sweeper truck which was sweeping the wharf, and ultimately running off the rails and coming to rest near the end of the wharf.
The driver of the sweeper truck (Mr Mills) was injured in the accident and commenced proceedings (the Mills action) against both the appellant (then known as P&O Ports Ltd) and the respondent for damages for

negligence in respect of his injuries. The appellant and the respondent each denied liability to Mr Mills. The appellant and the respondent also brought proceedings for contribution or indemnity against each other.

Mr Mills was successful at trial, and in the contribution proceedings liability was apportioned 80% to the respondent and 20% to the appellant: Mills v Fremantle Ports [2007] WADC 101. An appeal against that apportionment was successful and on appeal liability was apportioned 60% to the respondent and 40% to the appellant: Fremantle Ports v P & O Ports Ltd [2008] WASCA 126.
Shortly before the trial in the Mills action, the respondent commenced the current action for damages against the appellant in respect of the damage to the unloader. In that action, the respondent pleads that the appellant was liable to indemnify the respondent for the damage to the unloader pursuant to a contract between the respondent as owner of the unloader, CSBP as hirer and the appellant as operator, and also in damages for breach of a duty of care arising, by virtue of the contract, as bailee or under the general law.
The appellant subsequently applied for summary judgment in the current action on the grounds that, as a result of the decision in the Mills action, an issue estoppel or an Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) arose in respect of the respondent's claims for the breach of the alleged duty of care, and that the respondent's claim for a contractual indemnity was res judicata and subject to an Anshun estoppel. The application for summary judgment was dismissed, the learned primary judge concluding that there were triable issues in respect of each of those matters: Fremantle Port Authority v DP World Australia Ltd [2007] WADC 202. It is against that decision that this appeal is brought.
It is necessary, before turning to the specific issues on the appeal, to describe the matters in issue in the Mills action and the current action respectively.

The Mills action

In the Mills action, Mr Mills pleaded that he had been engaged by a company which traded as 'Clean Sweep' to carry out sweeping work for the respondent. He said that, on 17 October 2002, he had been requested by the respondent to clean the wharf. Mr Mills alleged he was injured when the unloader collided with the rear of the sweeper truck that he was driving on the wharf, forcing the sweeper truck to the edge of the wharf where it came to rest with the unloader on top of it.
Mr Mills pleaded that the unloader was owned by the respondent but operated, maintained and serviced by the appellant. He alleged, in substance, that the appellant was negligent in failing to provide or implement a proper system to secure the unloader in place to prevent it from moving in strong winds, in failing regularly to monitor and inspect the unloader to ensure that it was properly secured, and in failing to take appropriate steps in the windy conditions that prevailed on 17 October 2002 to ensure the unloader was locked down or secured.
On the same grounds, Mr Mills pleaded that the respondent was negligent and in breach of a duty of care owed to him under s 5 of the Occupiers' Liability Act 1985 (WA).
The appellant did not admit that it operated, maintained or serviced the unloader and said the unloader was hired from the respondent by CSBP. The appellant denied that it owed a duty of care to Mr Mills and denied that it was negligent. The appellant alleged, among other things, that the accident was caused or contributed to by the negligence of the respondent on the grounds pleaded in Mr Mills's statement of claim. The appellant also pleaded that the accident was caused or contributed to by the negligence of CSBP. It further pleaded contributory negligence by Mr Mills.
The respondent did not admit that it owed a duty of care to Mr Mills and denied that it was negligent. The respondent pleaded that the accident had been caused or contributed to by the negligence of the appellant and it also pleaded contributory negligence on the part of Mr Mills.
The appellant issued a notice of contribution against the respondent seeking a contribution pursuant to the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) (the Tortfeasors' Contribution Act). The appellant relied upon the particulars of negligence pleaded against the respondent in Mr Mills's statement of claim.
The respondent in turn issued contribution proceedings against the appellant under the Tortfeasors' Contribution Act. The respondent contended that the appellant, not the respondent, had the effective control and management of the unloader and therefore the appellant owed Mr Mills a duty to ensure that it was secured and could not cause him injury. In the alternative, the respondent alleged that it was entitled to be indemnified by the appellant pursuant to a contract between the respondent and the appellant for the hire of the unloader by the appellant for use in providing stevedoring services to CSBP.
The respondent alleged that the contract was partly written and partly by conduct. Insofar as it was written, the contract was said to be constituted by a document entitled 'Terms and Conditions of Hire of Bulk Unloaders' (Terms and Conditions), setting out the terms upon which the appellant and the respondent had previously agreed, and continued to agree, to operate. The Terms and Conditions had been attached to a facsimile dated 10 May 2002 from the respondent to the appellant. Insofar as the contract was by conduct, it was said to be constituted by the failure of the appellant to respond to the facsimile but to continue to use the unloader, thereby agreeing to the Terms and Conditions.
The respondent alleged that, pursuant to cl 5(d) of the Terms and Conditions, it was an express term of the agreement that the appellant would indemnify the respondent for 'all risks and liabilities for the use and operation of unloaders and for injuries to persons howsoever caused arising from or incidental to the use or operation of the unloaders'.
The Mills action went to trial in the District Court in May 2007. In a reserved decision, delivered on 22 June 2007, the learned trial judge found that both the respondent and the appellant were negligent and awarded damages to Mr Mills in the sum of $461,703.
In the contribution proceedings, the learned trial judge rejected the respondent's claim against the appellant in contract for an indemnity. His Honour was not satisfied there was any contract between the appellant and the respondent for the hire or use of the unloader. His Honour said:
[The respondent] did not produce in evidence any contract between it and [the appellant] for the hire or use of cranes. There was a contract dated 24 February 1997 between [the respondent] and [CSBP] which provided for access to and use of cranes by [CSBP]. On 22 October 1999 [CSBP] and [the appellant] entered into a contract for the provision of stevedoring services by [the appellant]. However the evidence does not satisfy me that there was any contract between [the respondent] and [the appellant] for the hire or use of the cranes at [the wharf] [52].
The learned trial judge found that the appellant's contractual relationship was with CSBP and that the appellant was using the unloader under that contract. The respondent had a separate contract with CSBP. His Honour concluded that the conduct of the appellant in using the unloader after 10 May 2002 was not an adoption of, or agreement to, the terms contained in the facsimile, but a continuation of its performance of services under its contract with CSBP. He found that the respondent had failed to make out its claim in contract against the appellant.
Subsequently in his reasons for judgment, in the course of considering the nature of the duty of care owed to Mr Mills by the appellant and the respondent respectively, the learned trial judge stated that there was no contractual relationship between any of the parties to the action. He found that Mr Mills had a contract with Clean Sweep, the respondent had contracts with CSBP and Clean Sweep, and the appellant had a contract with CSBP.
As I have mentioned, in the contribution proceedings his Honour apportioned liability in the proportions of 80% to the respondent and 20% to the appellant, that apportionment subsequently being varied on appeal to 60% to the respondent and 40% to the appellant.

The current action

In or about early April 2007, the respondent commenced proceedings (the current action) in the District Court against the appellant for damages for the damage to the unloader and associated losses.
In the statement of claim, filed on 9 July 2007, the respondent pleads that it was the owner of the unloader. It alleges that by a contract made in or about October 2002 between the respondent as owner, CSBP Ltd (which appears to be the same company as Wesfarmers CSBP Ltd) as hirer and the appellant as operator, CSBP agreed to hire the unloader and the appellant agreed to operate it for CSBP and to indemnify the plaintiff against any loss, damage, claims or expenses caused by or to the unloader.
The contract is said to arise from or be evidenced by:
(a)a course of dealings between the respondent and the appellant over a number of years prior to October 2002 by which the respondent as owner, CSBP as hirer and the appellant as operator entered into contracts of hire of the unloader and the appellant subsequently operated it for CSBP;
(b)written application forms called 'Application for Hire of Bulk Unloader' signed by both CSBP and the appellant;
(c)the appellant's conduct in October 2002 in operating the unloader for CSBP;
(d)a facsimile dated 10 May 2002 from the respondent to the appellant that set out the respondent's terms and conditions that applied in October 2002.
(I should mention that in the course of argument on the appeal, and before the primary judge, the respondent's counsel indicated that the respondent would amend the pleading to omit the allegation set out in sub‑paragraph (d).)
The respondent pleads that, pursuant to the contract, from 13 October to 17 October 2002 the appellant operated and was bailee of the unloader and used it to unload phosphate from a vessel moored at the wharf.
The respondent alleges that, on 17 October 2002, the appellant's employees failed to secure the unloader to the wharf and left it unsecured in strong winds causing the unloader to move on its rails, colliding with the sweeper truck and a barrier, and then running off its rails near the end of the jetty. The respondent claims for the costs of emergency salvaging and 'make safe' costs, the loss of the unloader and for assessor's costs, in the total sum of $548,770.60.
The respondent further alleges that by reason of the contract the appellant owed to the respondent a duty as bailee of the unloader and under the general law to exercise reasonable care to avoid damage to the unloader. The respondent alleges that the appellant was in breach of those duties by failing to secure the unloader in the strong winds prevailing on 17 October 2002 and that the appellant's breach caused the respondent's loss and damage.
On 31 August 2007, the appellant applied for summary judgment contending that the respondent's claim for a contractual indemnity was res judicata, alternatively subject to an Anshun estoppel. In respect of the claim for damages for negligence, the appellant contended that the claim was subject to an issue estoppel, alternatively to an Anshun estoppel.

The findings of the primary judge

The learned primary judge found that there were triable issues in respect of each of the grounds relied upon by the appellant and dismissed the application.
On the respondent's claim in negligence, her Honour held that the appellant had not established that an issue estoppel clearly applied. Whilst the issue of the liability of each party for the injuries to Mr Mills had been determined in the Mills action, there had been no determination as to liability in respect of the damage to the unloader, where different factual considerations may apply. In addition, the question of the appellant's liability as bailee had not been considered in the Mills action. Her Honour concluded there was no necessary conflict between the judgment in the Mills action and the present claim in negligence by the respondent because they involved different categories of damages.
Insofar as it was based on an Anshun estoppel, the learned primary judge also refused the application in respect of the respondent's claim in negligence. Having noted that the respondent conceded that the claim could have been litigated in the Mills action, her Honour appeared to accept the submission of counsel for the respondent that the appellant had failed to establish that it was unreasonable for the respondent not to have litigated it in the Mills action.
In respect of the contractual claim for an indemnity, the learned primary judge observed that, whilst the respondent had relied on a contractual indemnity in the Mills action, it was not one based on the documents relied upon in the present claim. Her Honour also referred to the respondent's submission that the contract claim had not been pleaded in the Mills action because the documents evidencing it had not been discovered by either party. The learned primary judge held that in the circumstances the claim should not be dismissed at an interlocutory stage on the ground of res judicata.
The learned primary judge considered that there were 'strong grounds' for the view that an Anshun estoppel arose in respect of the contractual claim, as it was so closely connected with the subject matter of the indemnity in the Mills action that it could be expected that the respondent would raise it as a defence to the appellant's claim for contribution. Her Honour found that there was nothing which would have prevented determination of the indemnity issue following the determination of Mr Mills's claim. The learned primary judge concluded that the indemnity issue '[fell] squarely within the situation outlined in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 at 319'.
However, her Honour noted the respondent's argument that the contract pleaded in the current action could not have been pleaded in the Mills action as neither party had discovered the relevant documents, and concluded that the reasonableness of the respondent in not raising the current claim in the Mills action was a matter that should be investigated at trial rather than on a summary judgment application.

Grounds of appeal

It is not necessary to set out the grounds of appeal in full. The appellant contended that the learned primary judge erred in three respects which can be sufficiently summarised as follows.
1.Having held the respondent's claim against the appellant for a contractual indemnity fell within the rule in Henderson v Henderson (1843) 3 Hare 100, the learned primary judge should have found:
(a)that summary judgment should be entered for the appellant unless the respondent was able to establish that it was arguable special circumstances existed sufficient to exclude the rule in Henderson v Henderson; and
(b)on the evidence, the respondent had failed to make out an arguable case that special circumstances did exist.
2.The learned primary judge erred in fact and law in finding that an Anshun estoppel had not been established in respect of the respondent's claim for damages for negligence on the ground that liability for damage to the unloader was not considered in the Mills action, when:
(a)the question to be determined was whether it was unreasonable for the respondent not to have brought the claim in the Mills action; and
(b)on the evidence, it was unreasonable not to have done so as the current claim will involve the same issue of the liability of the appellant for the accident and cover much the same evidence as the Mills action, with the possibility of contradictory judgments.
3.The learned primary judge erred in fact and law in finding that an issue estoppel did not arise in respect of the claim for a contractual indemnity on the ground that the present claim was pursuant to a different contract by reason of different parties, a different date and different documents, when in substance the same contract was relied upon in both actions.

I should mention, however, that it is not apparent from the reasons for decision of the learned primary judge that her Honour did decide any question of issue estoppel in respect of the respondent's claim for a contractual indemnity. Her Honour's summary of the grounds of the application for summary judgment do not refer to such a ground and her reasons for decision do not (at least in express terms) go on to consider such a ground. Her Honour describes the grounds relied upon by the appellant in respect of the respondent's claim for a contractual indemnity as res judicata and Anshun estoppel. The papers available on the appeal do not indicate specifically what grounds were relied on below. Nevertheless, on this appeal both parties (by reference to certain passages in the reasons for decision) proceeded on the basis that the learned primary judge had considered a ground of issue estoppel and decided it adversely to the appellant. I propose to deal with it on that basis.

The appellant's submissions

On the first ground of appeal, it was submitted on behalf of the appellant that, the learned primary judge having found there was nothing to prevent the determination of the contractual indemnity claim in the Mills action and that the claim fell squarely within the rule in Henderson v Henderson, the onus shifted to the respondent to establish 'special circumstances' which were capable of excluding the rule. The question before the learned primary judge, therefore, was whether there was any real question to be tried as to whether, at the time the Mills action was brought, there existed 'special circumstances' sufficient to exclude an Anshun estoppel. It was incumbent upon the respondent to advance reasons why it did not bring the current action then.
The respondent's claim that relevant documents evidencing the contract were not discovered in the Mills action was not to the point. In fact, as is apparent from the affidavit evidence before the learned primary judge, some of the documents relied upon by the respondent in the present case were in fact discovered in the Mills action.
In any event, the identification of additional evidence after an earlier action has been determined does not ordinarily give rise to special circumstances. In failing to offer an explanation as to why it did not discover the documents in the Mills action, and how they subsequently came to be located, the respondent failed to advance any evidence that might even arguably establish special circumstances.
Moreover, as a claim for a contractual indemnity was brought in the Mills action, as a matter of logic the absence of the documents now relied upon could not have been a relevant reason for not bringing proceedings for contractual indemnity in respect of the damage to the unloader in the Mills action. Furthermore, the documents now sought to be relied upon do not assist the respondent in establishing a contract of indemnity at the date of the accident.
It was submitted that there was no reason the current claim could not have been brought with the contribution proceedings in the Mills action and orders could have been made for the claim in respect of the damage to the unloader to be tried immediately after or subsequently to the Mills action, with orders that these parties be bound by the evidence in the Mills action.
On the third ground of appeal - the question of issue estoppel in relation to the contract of indemnity - the appellant submitted that the learned primary judge erred in fact and law in holding that the claim for indemnity was pursuant to a different contract to the claim determined in the Mills action.
It was submitted that, in substance, the same contract of indemnity is relied upon in the current action. The same issues arise. The respondent simply seeks to introduce new or different evidence and to express its claim in a different way. It is not to the point that the contract asserted in the Mills action was a contract between the appellant and the respondent for the hire of the unloader, whereas in the present action it is said to have been made between the respondent as owner, CSBP as hirer and the appellant as operator. In both actions, the respondent is said to be the owner and the appellant the operator and, in substance, the same issue arises, namely whether the appellant is liable to indemnify the respondent for damage caused by the appellant's use of the unloader.
It was further submitted that if the current case were permitted to proceed, findings might be made in respect of liability for the accident which were inconsistent with the Mills action, and a finding of liability based on the indemnity made in circumstances where in the Mills action no such indemnity was found to exist.
On the second ground of appeal - whether there was an Anshun estoppel in respect of the claim for damages for negligence - it was submitted that the learned primary judge erred in concluding that the appellant had failed to establish that it was unreasonable for the respondent not to have litigated its claim in the earlier action. The appellant was under no obligation to establish that it was unreasonable. It was for the respondent to show that it was not unreasonable. The respondent had not done so.

The respondent's submissions

It was submitted on behalf of the respondent that in the circumstances the learned primary judge was entitled to conclude that there were triable issues in respect of each of the grounds relied upon by the appellant.
On the first ground of appeal, it was submitted that the finding of the learned primary judge that the respondent's claim for a contractual indemnity fell squarely within Henderson v Henderson was wrong. A dispute about liability for damage to the unloader did not properly belong to litigation involving liability to pay damages for personal injury to Mr Mills. In the Mills action, the subject matter was the respective liability of each of these parties to Mr Mills in respect of his personal injuries. In the current action, the subject matter is the liability of the appellant for damage to the unloader and the nature and extent of that damage.
It was not unreasonable for the respondent not to bring such a claim in the Mills action because:
•the subject matter of each action is different;
•the causes of action and the substance of the causes of action are different - a cause of action for indemnity against liability to pay damages for personal injury is different to a cause of action for indemnity for damage to property;
•a finding of liability for damage to the unloader would not be inconsistent with the apportionment in respect of the injury suffered by Mr Mills;
•Mr Mills had no interest in the claim for damage to the unloader and it was reasonable that the determination of his claim for personal injury should not be encumbered with that claim; and
•in the Mills action both parties should have discovered (but failed to discover) documents that evidence or constitute the contract which is relied upon for the indemnity claim in the current action.
On ground two, it was submitted that no Anshun estoppel arose in respect of the respondent's claim for negligence. The only legally relevant issue in the Mills action was the respective liability of these parties to contribute to the damages payable to Mr Mills. There is a difference between contribution between tortfeasors for damages for personal injury and the liability of a defendant to a plaintiff for damage to property. The current position is different to Anshun where in both actions the substance of the subject matter was the extent (if any) to which Anshun was liable to contribute to the amount the Authority was liable to pay to the injured workman by way of damages.
It was further submitted that on a summary judgment application it was for the appellant to establish that it was unreasonable for the respondent not to have litigated the claim in the Mills action. The appellant had failed to do so.
On ground three of the grounds of appeal - issue estoppel on the contract claim - it was submitted that the contract pleaded in the current action is different to the one relied upon in the Mills action. In the Mills action, the respondent alleged a contract of hire between the respondent and the appellant. In this action, the contract pleaded is a contract of hire of the unloader by CSBP and for the appellant to operate it. The dates, parties and terms are different.

The disposition of the appeal

Ground 3

It is convenient to deal first with what counsel for the appellant in oral argument described as the appellant's primary case, namely the contention that the respondent's claim for a contractual indemnity is the subject of an issue estoppel.
In Blair v Curran (1939) 62 CLR 464, Dixon J, in an oft‑cited passage, described issue estoppel as follows:
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.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded (531 ‑ 532).
To similar effect is the description of issue estoppel by Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271 as being:
available to prevent the assertion in … proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities … The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case (276).
A critical step, therefore, is to identify the issue of fact or law which is said to be involved in the earlier decision. The difficulty lies in distinguishing between decisions of fact or law which are indispensable to the conclusion and other decisions of fact or law in the case.
In Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853, Lord Wilberforce said:
One way of answering this is to say that any determination is involved in a decision if it is a 'necessary step' to the decision or a 'matter which it was necessary to decide, and which was actually decided, as the groundwork of the decision' … And from this it follows that it is permissible to look not merely at the records of the judgment relied on, but at the reasons for it, the pleadings, the evidence … and if necessary other material to show what was the issue decided (965).
In Blair v Curran, Dixon J put it as follows:
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. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order … the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself …. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous (532).
It is therefore essential to approach reasons for judgment which are said to create an issue estoppel with an accurate understanding of what the author of the reasons was required to decide: Murphy v Abi‑Saab (1995) 37 NSWLR 280. In that case, Gleeson CJ suggested (288) that a practical test of whether a decision was fundamental is to ask whether it is possible to appeal against the finding. His Honour pointed out that as finality of litigation is the 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.
In this case, in the course of argument counsel for the appellant put the material finding in the Mills action on two, alternative bases. He argued that it had been decided in the Mills action there was no contractual relationship between the appellant and the respondent. Alternatively, it had been decided that there was no contract by which the appellant agreed to indemnify the respondent in respect of any loss or damage suffered by the respondent; that the respondent's right to be indemnified by the appellant in respect of its operation of the unloader had been put in issue and decided (adversely to the respondent) in the Mills action.
In my view, both formulations go beyond what was required to be, and what in fact was, determined in the Mills action.
In the Mills action, the respondent alleged there was a contract between the respondent and the appellant for the hire of the unloader by the appellant on the Terms and Conditions (it being contended that the appellant had accepted the Terms and Conditions by its conduct following receipt of the facsimile of 10 May 2002), pursuant to cl 5(d) of which the appellant was liable to indemnify the respondent in respect of any amount for which the respondent might be found liable to Mr Mills on his claim for personal injury.
The learned trial judge found that there was no contract on the Terms and Conditions, on the basis that the conduct of the appellant after the facsimile of 10 May 2002 did not amount to its acceptance of the Terms and Conditions. His Honour concluded that the respondent had not made out its claim in contract against the appellant.
It is the case that the learned trial judge also said [52] that 'the evidence did not satisfy [him] that there was any contract between [the respondent] and [the appellant] for the hire or use of the [unloaders] at the [wharf]' (emphasis added). But as the High Court pointed out in Kuligowski v Metrobus (2004) 220 CLR 363:
A failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. There are many general statements about the operation of issue estoppel, approved in this Court, which require more than non‑satisfaction to establish an estoppel in later proceedings [60].
I do not regard that statement by his Honour as a finding, capable of giving rise to an estoppel in the current action, that no contract existed between the appellant and the respondent in respect of the unloader.
In addition, in my view it was not necessary to his decision. The issue to be determined by his Honour was not whether there was a contract between the appellant and the respondent for the use or operation of the unloader. The issue to be determined was whether there existed the contract alleged by the respondent, pursuant to which the appellant agreed to indemnify the respondent in respect of any liability the respondent may have in respect of injuries suffered by Mr Mills arising out of the appellant's use or operation of the unloader. To the extent the learned trial judge's comments might be thought to go beyond that, they were not matters necessary for his Honour to decide and do not constitute matters which were 'legally indispensible' to his decision.
The learned trial judge also stated that there was no contractual relationship between any of the parties to the action [56]. That, however, was said in connection with the existence and content of the duty of care owed to Mr Mills. Again, I do not consider that to be a finding capable of giving rise to an issue estoppel in the current action. It was not necessary to his Honour's decision, there being no plea by any party of the existence of a contract which bore upon that duty of care.
In the current action, the respondent does not rely on the same contract but alleges a contract made between the respondent as owner, CSBP as hirer and the appellant as operator, by which the appellant agreed to operate the unloader on behalf of CSBP and pursuant to which the appellant is liable to indemnify the respondent in respect of any loss or damage caused to the unloader. The respondent relies for that contract, among other things, upon an alleged course of dealings between these parties over a number of years prior to October 2002 and, in that connection, upon a number of written application forms addressed to the respondent and signed by CSBP as the hirer and the appellant as the operator. The terms of the indemnity relied upon by the respondent reflect the relevant terms of those application forms.
In my view, in respect of the claim for a contractual indemnity, the appellant failed to make out an entitlement to summary judgment on the basis of issue estoppel - assuming it was in issue below. It is arguable that no issue estoppel arises; that is, it is arguable that there was no determination in the Mills action of any issue that is cardinal to the respondent's current claim for damage to the unloader, the current action being concerned with a contract differently constituted, between different parties, and for property damage as opposed to personal injury. If, as seemed to be common ground, her Honour found that the issue was one for trial, I consider, with respect, that her Honour was correct.
I would dismiss this ground of appeal.

Ground 1

It is convenient to turn now to ground one, dealing with the appellant's alternative contention that the respondent's claim of a contractual right of indemnity is no longer open by reason of the rule in Henderson v Henderson, or, as counsel for the appellant put it in oral argument, to an Anshun estoppel, based on Port of Melbourne Authority v Anshun Pty Ltd. (I should say that in the written submissions and below, those cases appear to have been referred to interchangeably.)
The rule invoked by the appellant rests upon the principle that the court requires parties to litigation to bring forward their whole case and will not permit a party to reserve a claim and make it later when it could and should have been made in the earlier proceedings. It stems from the well‑known statement of Wigram VC in Henderson v Henderson:
where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted parts of their case.
That principle was considered by the High Court in Port of Melbourne Authority v Anshun Pty Ltd in the context of a failure to plead a defence in an earlier action. In that case, Anshun had entered into an agreement with the Port of Melbourne Authority for the hire of a crane and had agreed to indemnify the Authority against any claims made against it arising out of the use of the crane. A workman suffered injury arising out of Anshun's use of the crane. He claimed damages against the Authority and Anshun, each of whom served a contribution notice on the other. The Authority's notice claimed a contribution, but not indemnity. The workman recovered damages against both the Authority and Anshun and between them liability was apportioned 90% to the Authority and 10% to Anshun. The Authority then brought an action against Anshun based on the indemnity in the agreement, claiming the amount the Authority had paid to the workman under the judgment. At trial, the Authority's claim was permanently stayed on the basis of the principle in Henderson v Henderson. An appeal by the Authority to the High Court failed.

The High Court rejected, however, the proposition that it was an abuse of process to raise in subsequent proceedings matters which 'could and therefore should' have been litigated in earlier proceedings and considered that the abuse of process test was not of great utility in these circumstances. Gibbs CJ, Mason and Aickin JJ said:
In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few (602 ‑ 603).
Their Honours went on to say:
The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By 'conflicting judgments' we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.
It is for this reason that we regard the judgment that the Authority seeks to obtain as one which would conflict with the existing judgment, though the new judgment would be based on a different cause of action, a contractual indemnity (603 ‑ 604).
Subsequently, in Rahme v Commonwealth Bank of Australia (Unreported, NSWCA, 20 December 1991), the question arose whether an Anshun estoppel applied where a party sought to bring an action on a cause of action which could have been raised in earlier proceedings. There, the plaintiffs had brought an action against the defendant for damages arising out of a foreign currency loan transaction, relying on a number of causes of action. After a lengthy trial, the action failed. The plaintiffs then commenced a second set of proceedings against the defendant in respect of the transactions, relying on the Contracts Review Act 1980 (NSW), which had not been raised in the first proceedings. The defendant contended the plaintiffs were precluded from bringing the second action, relying on the Anshun principle.
Priestley JA (with whom Meagher JA and Hope AJA agreed) considered that Anshun was authority for the following propositions:
1.Wigram VC's extended principle as stated in Henderson is accepted as good law by the High Court;
2.that principle applies … to a proceeding in which a party is asserting a cause of action which could have been raised, but was not, in a previous proceeding in which the same party was asserting a different cause of action based on substantially the same facts against the same party as the second proceeding is being brought; and
3.the extended principle of Henderson will be applied to the second proceeding when it was unreasonable for the party asserting the cause of action in that second proceeding to refrain from raising it in the earlier proceeding against the same opponent party (7).
The Court of Appeal held that the plaintiffs could have raised the Contracts Review Act in the previous proceedings and that their failure to do so was unreasonable. To allow the claim to go forward would mean covering much of the same ground again, involving 'waste on a large scale', and giving rise to the possibility of results inconsistent with the earlier decision. Anshun estoppel precluded the claim being raised in the second proceedings.
In Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287, the question was whether Anshun estoppel applied where there had been a failure to raise a cross‑claim in earlier proceedings. In that case, Bryant had been sued by the Bank in the Supreme Court of New South Wales for recovery of possession of mortgaged property and for debt. He raised various defences and cross‑claims but later amended his pleadings to withdraw some of the cross‑claims. He then brought separate proceedings in the Federal Court based on the cross‑claims he had withdrawn. The Full Court of the Federal Court held that the proceedings were barred by Anshun estoppel. The court followed the approach taken in Rahme, noting that it was consonant with the High Court's emphasis in Anshun on looking at the substance of the issue sought to be raised in the later case, rather than its form. The court went on:
It is true that, in [Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332] Brennan and Dawson JJ stated that the Anshun principle will ordinarily not apply to cross‑claims. They made an exception of cases where the relief claimed in the second proceedings is inconsistent with the judgment in the first. In making this distinction, their Honours may have had in mind a situation such as the one before them in that case, where the cross‑claim depended on facts remote from those of the principal claim. Questions of substantive degree may be involved; and in contrast to defences, many cross‑claims may have little or no connection with the principal claim in the action; there may be no more than an identicality of parties. Where that is so, there may be no policy justification for forcing defendants to litigate their claims as cross‑claims rather than as principal claims in separate actions in the forum of their choice. But, where, as here, a defendant's claim is intimately connected with that of the plaintiff, in the sense that each arises, substantially, out of the same matters of fact, there is every reason to require that both be litigated at the one time; thereby minimising costs and avoiding the possibility of inconsistent judgments (297 ‑ 298).
In Ling v Commonwealth (1996) 68 FCR 180, the Full Federal Court (184, 195) emphasised that the fundamental issue in the application of an Anshun estoppel is whether it was unreasonable for the party bringing the second action to have failed to raise its subject in the first action. Wilcox J (with whom Whitlam J agreed) went on to make the following comments in relation to reasonableness in this context:
In considering reasonableness … consideration must be given to all aspects of the case. They include the extent of the overlap between the facts underlying each claim; the greater the overlap, the easier it is to argue that it was unreasonable not to raise the matter in the first case. They also include any difficulties that existed, or might reasonably have been perceived, in raising the matter earlier … In assessing the reasonableness of Mr Ling's failure to raise his claim against the Commonwealth when he was sued by it in the earlier action, it is necessary to look at the whole of the circumstances that he then confronted (184).
Wilcox J also uttered a note of caution about the application of the principle in Anshun to cross‑claims. His Honour (who had been a member of the Full Court in Bryant) said:
The decision in Bryant does not mean that it will always be appropriate to apply the Anshun principle to cross‑claims. Some cross‑claims have little or no connection with the claim in the action. There may be no more than an identicality of parties. It is difficult to see any justification for applying the Anshun principle to a case of that kind. Some cross‑claims overlap the facts of the principal claim but involve additional facts. Where this occurs, a question of degree arises. It would be wrong to say that the Anshun principle is excluded whenever there are additional facts; to go so far would be to render it nugatory. However, where the additional facts are substantial, it may be appropriate to accept the reasonableness of separate proceedings (183).
Wilcox J referred with approval to the observation of the Judicial Committee of the Privy Council in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581, 590, that to shut a party out of bringing a case on the basis of such a principle is a serious step, a power not to be exercised except 'after a scrupulous examination of all the circumstances'. As his Honour noted, if the Anshun principle is too readily applied, there is a possibility of serious injustice.
In my view, in the light of the authorities to which I have referred, the questions in this case are whether the respondent's claim in the current action is based on substantially the same facts as the contribution proceedings in the Mills action and could have been brought in those proceedings in the Mills action, and whether it was unreasonable for the respondent not to have brought it in those proceedings. An important consideration is the likelihood of conflicting judgments.
The claim for indemnity made in the current action was not, of course, a matter that arose directly out of the contribution proceedings in respect of Mr Mills's claim for damages for personal injury, but I understood it was accepted by both parties to this appeal that it could have been brought by the appellant in the Mills action under O 19 of the rules of court.
It is clear, however, that Anshun estoppel does not operate simply because a party is asserting a cause of action which could have been, but was not, raised in a previous proceeding in which that party was asserting a different cause of action based on substantially the same facts against the same party. The touchstone is reasonableness; the question is whether it was unreasonable for the party asserting the cause of action in the second proceeding to have refrained from raising it in the earlier proceeding.
Whether it was unreasonable not to bring the claim in the earlier proceedings depends upon an examination of all the relevant circumstances, focussing on the issue of reasonableness. There can be no hard and fast rules. As the High Court pointed out (602) in Anshun, a party may legitimately refrain from litigating an issue in earlier proceedings for a variety of reasons such as expense, the importance of the particular issue, and motives extraneous to the actual litigation.
In the present case, the learned primary judge concluded that there was a triable issue as to whether it was unreasonable for the respondent not to raise in the Mills action its current claim for indemnity in respect of the damage to the unloader. I do not consider that in so concluding her Honour was in error.
I do not accept the submission made by the appellant's counsel that in all material respects the present case is on all fours with Anshun. In Anshun, in the first action the Authority sought a contribution from Anshun to any damages it was liable to pay to the workman and in the later action it sought a complete indemnity from Anshun in respect of those damages. Here, on the other hand, the respondent sought in the Mills action to be indemnified in contract by the appellant in respect of any damages it was liable to pay to Mr Mills and in the current action it seeks to be indemnified in contract by the appellant in respect of the damage to the unloader. Its claim in the latter does not touch upon the extent of its liability to contribute to the damages payable to Mr Mills.
While it was, I think, common ground that there are a number of matters of fact that are common to both proceedings, as counsel for the respondent argued, there are also a number of others that are not, including the respondent's right to indemnity in respect of damage to the unloader, the nature and extent of the damage to the unloader, and the monetary loss attributable to it. The degree to which there is an overlay of facts is not entirely clear at this stage. However, it appears there are substantial issues of fact to be determined that were not relevant to the contribution proceedings in the Mills action. That militates against the appellant's contention that the respondent is estopped from bringing the current action.
In the course of argument, counsel for the appellant acknowledged that, although the current action had been commenced shortly before the trial of the Mills action, neither party had suggested that it should be consolidated with the Mills action and he conceded that had the present claim been brought in the Mills action it is likely it would have been tried separately from the contribution proceedings in respect of Mr Mills's claim, either immediately following the hearing of those proceedings or at another time. He argued, however, that orders could have been made that the evidence in the Mills action also be evidence in the respondent's claim in respect of the unloader, so as to avoid the duplication of evidence as to common matters of fact.
Nevertheless, I think that that concession (which, in my view, was properly made) rather tends to lend some support to the respondent's argument that it is not unreasonable that the current claim be brought separately from the Mills action. It seems to me to be arguable that it was not unreasonable to bring the current claim in later, separate proceedings in circumstances where Mr Mills had no interest in an action concerning the damage to the unloader, involving, as it does, issues as to (among other things) past dealings over a number of years between the appellant and the respondent in relation to the unloader, and as to the nature and extent of the damage to the unloader and the respondent's entitlements in respect of that damage. It is by no means difficult to understand how the introduction of such a claim into the contribution proceedings in the Mills action might have caused additional delay and expense in the determination of the Mills action.
I am not persuaded there is likely to be any necessary inconsistency between the judgment in the Mills action and any judgment for the respondent in the current action. In the Mills action, it was found that there was no contract of hire of the unloader between the respondent and the appellant on the Terms and Conditions and therefore the respondent had no entitlement, pursuant to cl 5(d) of the Terms and Conditions, to be indemnified by the appellant in respect of any damages payable by the respondent to Mr Mills in connection with his personal injuries. In the current action, the respondent claims that the appellant is liable to indemnify it in respect of the damage to the unloader pursuant to a different contract made between the respondent as owner, CSBP as hirer and the appellant as operator. In the circumstances, it does not seem to me that there would be any necessary inconsistency between a judgment for the respondent on the latter claim and the judgment in the Mills action.
I consider, with respect, that the learned primary judge was correct in finding that the appellant had not made out an entitlement to summary judgment on the basis of an Anshun estoppel. I would dismiss ground one of the grounds of appeal.
I should say, however, that on the material before us on the appeal, I do not think there is any substance in the respondent's argument based on the failure of either of the present parties to discover in the Mills action some of the documents now relied upon by the respondent in the current action. I did not understand it to be suggested that any of the documents referred to by the respondent were in the exclusive possession of the appellant and it does not appear that the documents could not have been found by reasonable diligence on the part of the respondent. It would therefore appear that the respondent's failure to locate the relevant documents could only be attributable to a lack of diligence on its part.
If those are the circumstances, I am unable to see that the failure of the parties to discover the documents assists the respondent. Where at the time of earlier proceedings a party was unaware, and could not reasonably have been expected to be aware, of facts which provided the grounds upon which it could bring a claim, that is a basis upon which it might well be concluded that it was not unreasonable that the claim was not brought at that time. But where the lack of awareness is caused by the failure by that party to exercise reasonable diligence at the time of the earlier action, the position is quite different. It is difficult then to see that the lack of awareness is a basis upon which it could be concluded that the failure to bring the claim earlier was not unreasonable.

Ground 2

The second ground of appeal - the assertion that an Anshun estoppel arises in respect of the respondent's claims in negligence - proceeds on the basis that the current action involves the same issue of the appellant's liability as the Mills action and will cover much the same factual ground, leading to the possibility of contradictory judgments. I do not, however, consider that the appellant has made out that case.
It is clear from the statement of claim in the current action that the contract said to have been made between the respondent, CSBP and the appellant is relied upon as giving rise to the duty of care allegedly owed by the appellant, both as bailee and under the general law. It is also clear that the respondent's claim in respect of the damage to the unloader involves significant issues of fact and law that were not involved in the contribution proceedings in the Mills action. They include the nature and extent of the damage to the unloader and the liability of the appellant for that damage, those matters not having been canvassed in the Mills action.
As I have mentioned above, had the current claim been brought in the Mills action, in all probability the consequence would have been that the current claim would have been heard separately from the contribution proceedings in the Mills action.
In my respectful view, the learned primary judge was correct in concluding that the appellant had not made out an entitlement to summary judgment on the basis of an Anshun estoppel. This ground of appeal must also fail.

Conclusion

I would grant leave to appeal but dismiss the appeal.