Marr (Contracting) Pty Ltd v White Constructions (ACT) Pty Ltd - [1991] FCA 694

Re: MARR (CONTRACTING) PTY. LIMITED
And: WHITE CONSTRUCTIONS (ACT) PTY. LIMITED
No. ACT G27 of 1990
FED No. 694
Estoppel
(1991) Aust Torts Reports 81-141/104 ALR 181
(1991) 32 FCR 425

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves(1), Beaumont(2) and Burchett(3) JJ.

CATCHWORDS

Estoppel - Issue estoppel - proceedings in respect of property damage - later proceedings between same parties in respect of indemnity as regards liability to pay damages for personal injury of employee - whether certain findings in earlier proceedings operated as estoppel in later proceedings - whether such findings "indispensable" to the decision - application of principle in Mowbray v Merryweather.

Mowbray v Merryweather (1895) 2 QB 640, distinguished;

Blair v Curran (1939) 62 CLR 464, discussed;

O'Donel v The Commissioner for Road Transport and Tramways (New South Wales) (1938) 59 CLR 744, applied.

Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s.5.

Law Reform (Miscellaneous Provisions) Act 1955 (ACT), ss.11 and 12.

HEARING

Canberra

#DATE 15:11:1991

Counsel for the Appellant: Mr J.E. Maconachie QC with

Mr R. Molinari

Solicitors for the Appellant: Messrs Abbott Tout Russell Kennedy

Counsel for the Respondent: Mr G.K. Downes QC with Mr M.B. Williams

Solicitors for the Respondent: Messrs Macphillamy Cummins and Gibson

ORDER

The appeal be allowed with costs.

The orders made at first instance by Kelly J. on 25 May 1990 be set aside and that, in lieu thereof it be declared that the appellant is not estopped from pleading the matters raised in sub-paragraphs (a), (b) and (d) of paragraph 5 of its amended defence to the amended third party claim, and it be ordered that the defendant, White Constructions (ACT) Pty. Limited, pay the costs of the first third party, Marr (Contracting) Pty. Limited, of the hearing at first instance on the question of estoppel reserved by the primary judge, and that the matter be remitted to the Supreme Court accordingly.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

I have had the advantage of reading the judgments to be delivered by Beaumont and Burchett JJ.

For the reasons stated by their Honours, the appeal should be allowed with costs. I agree with the further orders proposed by Beaumont J. The matter should be remitted to the Supreme Court of the Australian Capital Territory for the further hearing and determination of the third party claim.

JUDGE2

Marr (Contracting) Pty. Limited ("Marr") appeals from an order made by the Supreme Court of the Australian Capital Territory that there be judgment for White Constructions (ACT) Pty. Limited ("White") against Marr (i) in the sum of $254,055 and (ii) for the amount of costs which White was required to pay to Norman Allan Betts pursuant to a judgment of that Court for Mr Betts against White ordered on 19 December 1989.

Before coming to the arguments advanced on this appeal, which is concerned with a question of issue estoppel,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1991] FCA 694
Decision Date: 15 NOVEMBER 1991

CaseChat Overview and Summary

The case between Marr (Contracting) Pty Ltd and White Constructions (ACT) Pty Ltd was before the court, dealing with an issue of estoppel arising from previous litigation concerning property damage, and subsequently, indemnity for personal injury of an employee. The dispute involved whether certain findings made in the earlier proceedings could operate as an estoppel in the subsequent indemnity proceedings. The central issue before the court was whether the findings in the earlier proceedings were "indispensable" to the decision, and thus could prevent the appellant from relitigating certain matters in the indemnity proceedings. The case hinged on the application of the principle established in Mowbray v Merryweather.

The court needed to determine if the findings in the earlier property damage proceedings were indispensable to the decision in those proceedings, and if so, whether they could be used as an estoppel in the indemnity proceedings. This required an examination of the nature of the findings and whether they were essential to the resolution of the property damage claim. The court had to balance the need to avoid re-litigation against the requirement that the findings be truly indispensable to the decision in the original proceedings.

In addressing these issues, the court found that the findings in the earlier proceedings were not indispensable to the decision in those proceedings. The court reasoned that the findings were not essential to the outcome, and thus, could not operate as an estoppel in the indemnity proceedings. The court applied the principle from Mowbray v Merryweather, which holds that an issue may only be estopped if it was indispensable to the decision in the earlier proceedings. As the findings in question were not indispensable, the appellant was not estopped from raising them in the indemnity proceedings. Consequently, the appeal was allowed, and the orders made at first instance were set aside.

The final orders of the court were that the appeal be allowed with costs, and the orders made by Kelly J. on 25 May 1990 be set aside. In place of those orders, it was declared that the appellant is not estopped from pleading the matters raised in sub-paragraphs (a), (b) and (d) of paragraph 5 of its amended defence to the amended third party claim. Additionally, White Constructions (ACT) Pty. Limited was ordered to pay the costs of the first third party, Marr (Contracting) Pty. Limited, of the hearing at first instance on the question of estoppel, and the matter was remitted to the Supreme Court accordingly.

Orders

Orders of the court

The appeal be allowed with costs.

The orders made at first instance by Kelly J. on 25 May 1990 be set aside and that, in lieu thereof it be declared that the appellant is not estopped from pleading the matters raised in sub-paragraphs (a), (b) and (d) of paragraph 5 of its amended defence to the amended third party claim, and it be ordered that the defendant, White Constructions (ACT) Pty. Limited, pay the costs of the first third party, Marr (Contracting) Pty. Limited, of the hearing at first instance on the question of estoppel reserved by the primary judge, and that the matter be remitted to the Supreme Court accordingly.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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