Yesterday, the Court Of Appeal of the Supreme Court of New South Wales had the occasion to consider issue estoppel in Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213.
The main judgment was given by Meagher JA (with whom Leeming JA and Simpson JA agreed).
While the substantive proceedings the subject of the appeal (i.e. workers compensation) are of no relevance to my practice, the summary of law provided by the judgment at [22] to [25] and [33] to [35] in relation to issue estoppel is helpful more broadly.
Omitting case references, that summary can be further condensed to the following:
- with res judicata, the very right or cause of action in the former proceedings has passed into judgment, so that it has merged and no longer has an independent existence.
- with issue estoppel, in the second proceeding, a state of fact or law is alleged (or denied), the existence of which is a matter necessarily decided by the prior judgment;
- an issue estoppel precludes the parties and their privies “from contending to the contrary of that point… which having been once distinctly put in issue by them… has been, on such issue joined, solemnly found against them.”
- an issue estoppel can apply to judgments and orders made by consent.
- in relation to factual questions, an issue estoppel applies only to what are described as “ultimate” facts, and does not extend to “mere evidentiary facts”.
- “An ultimate fact may be found by the Court or tribunal, or admitted or agreed between the parties for the purpose of determining the matter directly in issue”.
- for an issue estoppel to arise, it is necessary that the first decision was “final”.
In this case, it was accepted that former decision was capable of giving rise to an issue estoppel: [27], and it was argued by the appellant that the respondent was “precluded from contesting in later proceedings in the Commission concerning a claim for permanent impairment … that she had fully recovered”:[33]
Meagher JA held at [34] and [35]:
“not all final decisions of ultimate issues by subordinate tribunals are binding as issue estoppels….
That is because … the issue estoppel extends to such matters as are necessarily determined only if the court or tribunal “has jurisdiction to determine these matters for all purposes between the parties, ie, jurisdiction to determine them directly and immediately as well as merely incidentally”. Whereas that will ordinarily be the position in relation to a superior court, it is not necessarily so in relation to inferior courts or tribunals with limited jurisdiction.”
At [39] to [51] there is then consideration of the relevant statutory scheme under the Workers Compensation Act 1987 (NSW), which was important in the context of this appeal.
At [51], Meagher JA held that “it is critical to the appellant’s success in the appeal that the issue estoppel prevented a medical dispute from arising.”
His honour then held that the issue estoppel contended for did not arise: [56].