Issue estoppel August 28, 2015
Estoppel – Issue estoppel – Appellant employed at abattoir operated by respondent – Appellant subsequently employed by third party providing labour services to respondent – Appellant complained to Fair Work Ombudsman that entitlements not paid upon termination of employment – Fair Work Ombudsman commenced proceedings in Federal Court of Australia against respondent – Federal Court determined respondent, not third party, was appellant’s employer – Appellant commenced proceedings claiming damages from respondent for personal injury sustained at abattoir – Appellant argued third party, not respondent, was his employer – Respondent argued appellant was issue estopped by reason of Federal Court proceedings from denying that respondent was appellant’s employer – Whether appellant was issue estopped by reason of declarations and orders made in Federal Court proceedings – Whether appellant was privy in interest with Fair Work Ombudsman in Federal Court proceedings.
FRENCH CJ, BELL, GAGELER AND KEANE JJ
22 Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as “cause of action estoppel”33. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as “issue estoppel”34. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment35. The classic expression of the primary consequence of its operation is that 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”36. The third form of estoppel is now most often referred to as “Anshun estoppel”37, although it is still sometimes referred to as the “extended principle” in Henderson v Henderson38. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim39, or the raising of an issue of fact or law40, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding41. The extended form has been treated in Australia as a “true estoppel”42 and not as a form of res judicata in the strict sense43. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
23 … one principle must govern the identification of privies for the purpose of all forms of estoppel which result from the rendering of a final judgment in an adversarial proceeding.
24 Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories44, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute45. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
33 Consistently with the rationale for the principle, the explanation demonstrates that a party to a later proceeding (“A”) can be privy in interest with a party to an earlier proceeding (“B”) on either of two bases. One basis is that A might have had some legal interest in the outcome of the earlier proceeding which was represented by B, or that B has some legal interest in the outcome of the later proceeding which is represented by A. The extent to which the representation by A or B will be sufficient to bind the other is the critical issue which will be explored later in these reasons. The other basis is that, after that earlier proceeding was concluded by judgment, A might have acquired from B some legal interest in respect of which B would be affected by an estoppel which A then relies on in the later proceeding.
34 Subsequent applications of the principle in Ramsay v Pigram have for the most part correctly emphasised that the interest of the privy must in each case be a legal interest: an economic or other interest on the part of A in the outcome of the earlier proceeding is insufficient. Those applications have also correctly emphasised that, absent a legal interest, such influence as A might have had over the conduct of the earlier proceeding is irrelevant even if that influence amounted to control.