The Commonwealth of Australia v Sciacca, A

[1988] FCA 131

--.

CATCHWORDS

Administratlve Law - application by respondent to

Administrative Appeals Tribunal for compensation for

injury suffered 6$ the respondent in thecourse of her

employmentwith the Commonwealth - unsuccessful action

brought by the respondent in Supreme Court of the

Australian Capital	Territory for damages for personal
inlury suffered in same lncident	- finding by Supreme

Court that Commonwealth not In breach of duty of care

- further findings made on questlons relevant to the

issue o f damage - whether flndings made in relation to

issue o f damage created issue estoppel binding the

parties' in the proceedings before the Tribunal -

questioq whether Tribunal bound'by issue estoppel
establiqhed in judicial proceedlngs discussed but not

decided.

Administrative Appeals Tribunal Act 1975, s.33.

THE COMMONWEALTH OF AUSTRALIA V ANNUNZIATA SCIACCA

A.C.T.G 51 of 1987

31 March 1988

ROWEN C.J., SHEPPARD AND MORLING JJ.
Sydney

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	) No. A.C.T. G51 of 1987
1
GENERAL DIVISION	)

Questions of law referred by the Admlnistratlve Appeals Tribunal

BETWEEN:  THE COMMONWEALTH OF
AUSTRALIA

Applicant

AND :  ANNUNZIATA SCIACCA

Respondent

MINUTE OF ORDER

JUDGES MAKING ORDER	:	Bowen C.J., Sheppard and Morling JJ.
DATE OF ORDER	:	31 March 1988

WHERE MADE	: Sydney
THE COURT ORDERS THAT:

1. The questions of law referred by the Administrative Appeals

!

Tribunal in the speclal case: 

"Whether	the respondent in the proceedings in the
Administrative Appeals Tribunal on	a review of a

decision relating to a clalm under the Compensation

(Commonwealth Government Employees) Act 1971 is

precluded by the rule relating to issue estoppel from

contending the contrary of the following findingsmade

by the Supreme Court of the Australian Capital

i

Territory on 18th October 1985:

(1) any condition	of the respondent/plaintiff’s back
has no causal relationship	to the accident;

I

(2) by 13 December 1978 the respondent/plaintiff was

fit to return to her duties as a tea attendant.”

be answered:

(1) No.

(2) No.

2. The Commonwealth of Australia to pay to Annunziata Sciacca

her costs of the reference.

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

IN THE FEDERAL COURT	OF AUSTRALIA	)
)

NEW SOUTH	WALES DISTRICT REGISTRY	)	NO. A.C.T.	G51 Of 1987
1

GENERAL DIVISION 1

Questions of law referred by the

Administrative Appeals Tribunal

BETWEEN:  THE COMMONWEALTH OF
AUSTRALIA

Applicant

AND :  ANNUNZIATA SCIACCA

Respondent

CORAM: BOWEN C.J., SHEPPARD and MORLING JJ.

DATED: 31 March 1988

REASONS FOR JUDGMENT

THE COURT: Proceedings are pending in the Administrative Appeals Trlbunal ln which the applicant claims compensation

under the provislons of the Compensation (Commonwealth

Government Employees) Act 1971. Questions of law have arisen

in the proceedings and pursuant to s.45(1) of the

Administrative Appeals Trlbunal Act 1975 and Order 50 , rule 1

of the Federal Court Rules those questions have been referred

for decision to this Court.

In order to understand the questions for decision, it

is necessary to refer briefly to the facts which have given

rise to the proceedings In the Tribunal. On 31 December 1976

L.

the respondent was employed by the Commonwealth as a tea

attendant with the Department of Treasury/Finance. On that
date she had an accident at work. She sued the Commonwealth

in the Supreme Court of the Australian Capital Territory for

damages for personal injurles which she alleged she had

sustained in the accident. In her statement of claim she

alleged that the Commonwealth was negligent in that it	was in
breach of its duty to her In	a umber of respects.

The proceedings in the Supreme Court were heard by

Gallop J.	He was not satisfied that the respondent had
established that there had been any breach	y t e Commonwealth
of	any duty of care towards her and accordingly entered

judgment for the Commonwealth. However, in case an appellate

court might take a different view on liability, he proceeded to

assess damages. In the course of making that assessment his

Honour made several findings, including a finding that any

condition of the respondent's back had no causal relationship with the accident, and a further finding that by 13 December 1978 the respondent was fit to return to her duties as a tea attendant.

Several determlnatlons have been made in relation to

the respondent's claim for compensation under the Compensation

(Commonwealth Government Employees) Act. such One

determination was made on 3 April 1986 in which it was found that the back condition suffered by the respondent was not the

result of personal injury arising out of or in the course of

her employment on 31 December 1976 and that on and from

13 December 1978 the respondent had been	fit to undertake the
duties of a tea attendant.

The respondent sought a review by the Administrative

Appeals Tribunal of the determination made	on 3 April 1986.
Upon the hearing of the review the Tribunal	decided, contrary

to submissions put to it by the Commonwealth, that the

respondent's applicatlon was not barred by issue estoppel or

. -

res judicata. Thereupon the following	questions were referred
to this Court for decislon:

J

"Whether the respondent in the proceedings in the Administratlve Appeals Tribunal on a review of a

decision relating to a claim under the Compensation

(Commonwealth Government Employees) Act 1971 is
precluded by the rule relating to issue estoppel

from contending the contrary of the following

findings made by the Supreme Court of the

Australian Capital Territory on	18th October 1985:
(1)	any condition of the respondent/plaintiff's
back has no causal relationship to the
accident;
( 2 )	by13 December 1978 the respondent/plaintiff was fit to return to her duties as a tea
attendant. "

The mere circumstance that finding of fact has been

made in earlier proceedings between parties does not lead to

the result that there is an issue estoppel as to that fact In

later proceedings between the same parties. An issue estoppel

will only arise in relation to what Dixon J. (as he then was)

described in Blalr v Curran (1939) 6 2 CLR 464 at 532 as "those

ultimate facts which form	the ingredients in the cause	of
action, that is, the title	to the right established".	In the

following passage in his judgment which has often been referred

t o with approval (see, f o r example, Port of Melbourne Authority

v Anshun Pty. Limited (1981) 147 CLR 589 at 597-E), Dixon J.

said (at pp.531-2):

"A ludicial determlnation 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, .... - -. . .. .

"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 concluslon is

against the existence	of a right or claim which in
point of law depends	upon a number of ingredients

or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the

existence of the right was negatived."

In Lombardo v Stuart Bros. Pty. Limited (1967) 2 NSWR 39 at 40 Walsh J.A. (as he then was), following Blair v Curran, described estoppel as arising only in relation to "facts fundamental to the decision". See also Penn-Texas Corporation

v Murat Anstalt	(No. 2 )	(1964) 2 QB 6 4 7 at 6 6 0 where Lord
Denning M.R. observed that	a previous ludgment between the same

parties is only conclusive on matters which were "essential and

necessary" to the decision, and is not conclusive on "other
matters which came incidentally into consideration in the

course of the reasoning."

As Fullagar J. pointed out in Brewer v Brewer (1953)

8 8 CLR 1 at p.15, issue estoppel applies only as to issues. It

is true that	In thc proceedings before Gallop	J. there was an
issue as to damages	in the sense that such	an issue would have

arisen for decision	if his Honour had found for the respondent
(the plaintiff In the proceedings before	him) on the question

of liability. But having reached the conclusion that there
should be judgment for the Commonwealth in those proceedings
because no breach of duty was shown, it was unnecessary for

Gallop J. to decide the Issue of damages. What he said in his

judgment on the question of damages	was no more than the
expression of oplnions	for the benefit of an appellate court,
should an appeal against his findlng	on liability succeed.
His Honour's particular findings, if they be described	as such,

on questions of damage were not relevant, let alone

fundamental, to the only issue which	he decided.	In no sense
were they findings	in relation to "facts fundamental"	to Gallop

J ' s decision (cf Lombardo, supra, at p.40), nor were they

findings which hls decision "necessarily established as the legal foundation or ~ustlfication" of his conclusion (cf Blair v Curran, supra, at p. 531).

The declsion in James v The Commonwealth (1935)

52 CLR 570 is consistent with our conclusion that no estoppel

arises from Gallop J . ' s findings on damages. In James' Case an

action was brought to impugn the validity of the Dried Fruits

- Act 1928. In a previous action (see James v The Commonwealth

i

(1928) 41 CLR 442) the plaintiff attacked the validity of the

legislation on the same ground, namely, inconsistencywith s.92

of the Constitution. The prevlous action succeeded on another

ground. It was held in the second action that, although the

Court had found against the plaintiff on the s.92 argument in
the previous action, he was not estopped from again raislng

that argument. In James' Case the finding which was claimed

to give rise to the estoppel was, of course, a finding of law,

not a findlng of fact as ln the present case.

Counsel for the Commonwealth submitted that the

respondent could have applled to Gallop J. for separate

hearings on the questions of liability and damage and that, not

having made such an appllcatlon, the respondent was bound by

his Honour's findings on matters of damage. Mraz v The Queen

(No. 2 ) (1956) 96 CLR 6 2 was relied	upon in this respect.
Mraz was a criminal case. We note	in passing that the High
-
Court has since divided	on the question whether issue estoppel
has any application	in relation to crlminal cases: The Queen

v Storey (1978) 140 CLR 3 6 4 .	The majority thought	that,
although the doctrine was appllcable in some	cases,	its

I

application was limited.

Be that as it may, counsel for the Commonwealth relied

upon the dictum in the jolnt ludgment in Rraz in which it is

I

said (p. 691, "It is enough that	an issue or issues have been
distinctly raised and found. Once that is	done, then, so long
as the finding stands, if there	be any subsequent litigation

between the same parties, no allegations legally inconsistent

with the findlng may be made by one of them against the other!'.

Reference was also made to what was later said (p. 70)

concerning the trial of a separate issue, namely, that the parties may agree to suspend, defer or otherwise eliminate a

necessary issue and then it is not covered by the

determination.

On the basis of these two dicta it was contended

that, because the damages issue might have been "hived off"

pending the determination of the issue of liability but was

not, the parties were bound by his Honour's findlngs in

relation to damage lust as they were in relation to his	..
findings on the question	of liability, the issues arising in

relation to the question of damages having been "distinctly

raised and found". It 1 s clear that nothing said in - Mraz was

intended to affect the principle propounded in Blair v Curran

(62 CLR at p.532) that nothing but what is legally

indispensable to the concluslon is finally closed or precluded.

When the judges in Mraz used the expression "distinctly raised

and found", they were using "found" in relation to a matter which was legally indispensable to the conclusion which had been reached. The only matter falling into that category in

the present case was the question whether the Commonwealth was

in breach of the duty of care whlch It owed the respondent. No

matter related to the damage suffered by the respondent was

connected therewith. The submission based on .Mraz	-	is,
accordingly, rejected.

For the reasons we have given, the respondent is not

precluded by the rule relating to Issue estoppel from

contending to the contrary	of any finding made by Gallop	J. on
the question of damages.

I

r

8.

Counsel for the respondent suhmitted that there 1s no

room f o r the application of the principle of issue estoppel in

proceedings before the Admlnistrative Appeals Tribunal because

the principle 1 s a rule of evidence and the Tribunal is not

bound by the rules of evidence	(s.33 of the Administrative
Appeals Tribunal Act).	It is true that estoppel is referred

to as a rule of evidence in some of the decided cases: see, for example, Low v BOUVerie (1891) 3 Ch. 82, at 105 per Bowen L.J.; Humphrles v Humphries (1910) 2 K.B. 531 at 536 per

Farwell L.J.; Marginson v Blackburn Borough Council (1939)

2 K.B. 426 at 436 per Slesser L.J. and Discount & Flnance Ltd v Gehrig's NSW Wlnes Ltd (1940) 40 S.R. (NSW) 598 at p. 603 per Jordan C.J. Certalnly, ~t operates to prevent evidence from being tendered. However, other authority describes estoppel as a rule of law: see Canada & Dominion Sugar CO Ltd v Canadian National (West Indies) Steamshlp Ltd (1947) A.C. 46 at 56 per Lord Wright; Mills v Cooper (1967) 2 Q.B. 459 at 468-9 per Diplock L.J. (as he then was); Moorgate Mercantile CO Ltd v Twitchings (1976) Q.B. 225 at 241 per Lord Dennlng M.R. and Queensland v The Commonwealth (1977) 139 CLR 585 at 614-615 per

Aickin J. The problem was adverted to by thls Court In

Minlster for Immigration and Ethnic Affairs v Daniele

(1981) 39 ALR 649 where Fisher and Lockhart JJ. said (p.654):-

"Issue estoppel, generally but not universally seen

as a rule of evldence, can not have any place in

proceedings of the Tribunal and is, to the extent

that it is a rule of evidence. exuresslv excluded
by the provislons of s.33 of th6 Administrative

Appeals Tribunal Act. Sub-section 33(L)(b)

directins that uroceedinqs should be conducted as

far as possllhe with- little formality and

I

tcchnicallty and sub-s.33(l)(c) to the effect that

the Tribunal	1 s not bound by the rules of evidence
would appear concluslvely	to point to exclusion of
the doctrine.	"
If the view 1s taken that issue estoppel is	a rule of

law (which may now be the more acceptable	view), that would not
conclude the matter, as	1 s apparent from what was said by their

Honours, because of the administrative nature of the Tribunal and

the provisions of S . 33(l)(b) of the Administrative Appeals

Tribunal Act which directs the Tribunal to conduct its

proceedings, so far as posslble, without formality and

technicality. A finding by an administrative tribunal will not

give rise to an issue estoppel. In W.J. & F. Barnes Pty Limited

v Federal Commlssioner of Taxation (1957) 9 6 CLR 2 9 4 ,	Kitto J .
said (p.315) that	a taxatlon board of review's decision was not
an adjudication;	it was administrative In character and could

not create an issue estoppel.

The question 1 s not a stralghtforward one and it was not

fully argued before us. Because of our view that the judgment

of Gallop J. dld not give rise to any relevant issue estoppel, it

is unnecessary to declde the point and, accordingly, we express

no vlew upon it.

In the result both questlons in the stated case should

be answered in the negative. The	Commonwealth must pay the
respondent's costs of the case.

I

I certify that this and the nine (9)

preceding pages are a true copy of the Reasons for Judgment of the Court.

Associate: $L-

Date:  31 March 1988

Counsel f o r applicant:  B. Sully Q.C. with M. Holmes

instructed by:  Australian Government Solicitor

Counsel for respondent:  J. Basten with T. Lynch

instructed by:  John Faulks & Co.

Date of Hearing:	23 February 1988
Date of Judgment:	31 March 1988