(b) in relation to the claim, the employer has agreed to pay compensation or the liability of the employer to pay compensation has been established in accordance with this Act; (c) the employer is entitled to be indemnified against his liability to pay the compensation under a policy of insurance or indemnity obtained in accordance with this Act; and (d) the employer defaults in payment of an amount of the compensation for a period exceeding one month, the person entitled to the compensation may make a claim against the approved insurer of the employer for payment of the amounts of compensation payable and to become payable. (2) A claim under subsection (1) shall be made within one month after the right to make the claim arose or within such further time as the Court, on an application made before or after the expiration of that period of one month, allows. (3) The Court may allow such further time for the making of a claim under subsection (1) as it thinks fit and the claim

may be made accordingly. (4) An approved insurer shall, in writing to an employer who has defaulted in payment of the compensation, give notice of the making of a claim under subsection (1). 133.(1) Where a person makes a claim against an approved insurer in accordance with section 132, the approved insurer shall pay to the person the compensation payable at the date of the claim or becoming payable after that date. (2) An amount payable to a person by an approved insurer is a debt due and payable by the insurer." 7. In addition to these provisions s25 of the Interpretation Act is also relevant, viz:- "25. Where an Act authorizes ... a document, ... to be served by post, whether the expression "serve" or "give" - - is used, service shall be deemed to be effected by properly addressing and posting it by prepaid post, and service is deemed to have been effected at the time at which the package would be delivered in the ordinary course of post." 8. It may be noted that s25 must be read subject to s3(3) of the Interpretation Act which provides, in effect, for present purposes, that s25 yields "to the appearance of an intention to the contrary" in relevant provisions of the Work Health Act. 9. The plaintiff's case, put briefly, is this: he posted a claim form to his employer, pursuant to ss82(1)(c) and 83(1)(b) of the Act, and his employer failed to "dispute liability" within 7 working days after receiving the claim, as required by s85(1)(d) of the Act, and is therefore deemed by s87 to have accepted liability. Accordingly, on the basis that this means that, in terms of s132(1)(b) of the Act, "the liability of the employer to pay compensation has been established in accordance with (the Work Health) Act," the plaintiff sues in proceedings No.44 of 1990 to recover compensation from Union, as the employer's approved insurer, pursuant to ss132(1) and 133 of the Act. 10. For present purposes, it is not in dispute that the plaintiff caused the claim forms to be posted on 16 August 1989, or that Union is the employer's "approved insurer". 11. I turn first to the judgment of Martin J of 21 December 1990, which lies at the root of Union's submissions on issue estoppel. 12. The relevant findings by Martin J on 21 December 1990: On 21 December 1990 his Honour ruled on an application by the plaintiff under R22.02(1) for summary judgment in proceedings No.44 of 1990. His Honour noted at p4:- "The defendant (Union) says, however, that the preconditions prescribed by the Act to establish its liability thereunder have not been established and that, in any event, certain deeming provisions forming part of the chain designed to fix the defendant with liability to the plaintiff are rebuttable." 13. It will be seen that this was the same argument relied on before me, buttressed now by his Honour's findings of fact. His Honour examined the scheme of the Act (pp5-15), observing at pp6-7:- "The principal issue in this case is as to whether or not the claim for compensation was given or served in accordance with the law. Service on an incorporated association (such as Yuendumu Community Council Inc.) is also provided for in the Associations Incorporation Act. A notice, demand, summons, writ or other document or process may be served on such an Association by serving it personally on the public officer of the Association or by sending it by post to him at his last known address (Associations Incorporation Act s24(1)). Although the provisions of the companies legislation as to service do not apply to an incorporated association, the provisions of the Associations Incorporation Act may. Section 25 of the Interpretation Act provides that where an Act authorises or requires a document to be served by post, service shall be deemed to be effected by properly addressing and posting it by prepaid post, and service is deemed to have been effected at the time at which the

package would be delivered in the ordinary course of post. This deeming is said by the defendant to be rebuttable." 14. At pp9-10 his Honour said:- "The plaintiff relies upon (s87 of the Act) in support of its argument that there can no longer be any issue as to whether the plaintiff was a worker or for some other reason was precluded from obtaining benefits under the Act; the defendant says that the deeming is rebuttable. One of the preconditions to the deemed acceptance of liability under s87 is the relevant nonperformance (that is, failure to dispute liability) by the employer within the time specified in s85(1), that is, 7 working days after receiving a claim for compensation. A mystery arises as to how it is proved that the employer does not dispute liability. It seems to be that fact standing alone (that is, failure to dispute within 7 working days after receiving a claim) which brings about the deeming in s87, and that having nothing to do with the consequential provision to advise the claimant in writing of the fact. In other words, s87 does not say that if the employer does not advise the claimant in writing of the fact that he disputes liability for the compensation claimed (a requirement of s85(9)) within the relevant period he shall be deemed to have accepted liability. These are two separate matters, firstly, the decision of the employer to dispute liability (s85(1)(d)) and secondly the advice to the claimant of that fact, and the reasons for that decision (s85(9))." 15. I respectfully agree with his Honour's observations to the effect that s87 should be drafted more clearly; for example, the deeming could more meaningfully be triggered by failure to comply with s85(a). His Honour continued at p10:- "Assuming, for the present, that acceptance of liability is deemed under s87, and that that proposition is not rebuttable, then pursuant to s85(2) the obligation is upon the employer to immediately advise the claimant in writing of that fact and to commence payment of the benefits. His statutory obligation therefore is to either expressly accept liability (under s85(1)(a)) and immediately advise the

claimant (under s85(2)) or, having allowed time to expire, recognise that he is deemed to have accepted liability (under s87) and act accordingly (under s85(9)). Section 87 is subject to s85 and that seems to go no further than to direct that an employer may make a decision under ss(1) of s85, other than to dispute liability, in which case s87 has no operation." 16. After discussing the general scheme of the Act, his Honour pithily summarized Union's argument, at pp15-16:- " ... the defendant insurer (Union) says that upon the evidence the essential preconditions to its liability have not been established, that is, the employer, Yuendumu Community Council Incorporated, was not properly served with (s83(1)) and therefore did not receive the claim for compensation; in those circumstances since it did not and was not called upon to make a decision as to whether to admit or deny liability (under s85(1)), the deeming provisions as to its liability (in s87) do not apply, and since the liability of the employer has not been established the provisions fixing the liability of the defendant insurer (ss132 and 133) have no operation." 17. It will be seen that this was the argument put again before me. 18. His Honour then turned to the "essential preconditions to (Union's) liability", the question of the alleged service of the claim on the employer, required by s83(1). At p23 his Honour said:- "The plaintiff does not rely upon the claim said to have been made on his behalf in December 1988. He says that he completed a claim form dated 3 August 1989. His solicitor deposes to enclosing that claim form and a medical certificate under cover of a letter dated 11 August 1989. The copy letter in evidence shows it was addressed to "Christopher Raynal, Administrator, CMB Yuendumu Community Council via Alice Springs 0872". The records of the solicitors for the plaintiff show that that letter and its contents were posted on 16 August 1989. No response was received from the Association (Yuendumu Community Council Inc.) by those solicitors. There is evidence from the postal manager of the Alice Springs Post Office describing the mail delivery system from Alice Springs to Yuendumu and that at the latest mail posted at Alice Springs on 16 August 1989 would have reached Yuendumu by 22 August. Even allowing a day or two for the mail to be sorted and delivery to the addressees a letter posted on 16 August should have been received by an addressee no later than 24 August. I think that is the latest date upon which the letter and documents in question here would have been deemed to have been received pursuant to s25 of the Interpretation Act." 19. At pp24-25 his Honour said:- "There is no evidence as to any system as may have been established by the Association (that is, the employer) concerning mail addressed to it and the distribution of that mail to whomsoever may have been the responsible officer or employee of the Association to deal with it, nor as to any system for recording the receipt of incoming mail, nor as to any system it may have established in relation to claims which might be made against it such as this. A Mr Haywood

was engaged by the defendant (Union) to investigate the question of the service of documents on the Association. He does not appear to have made enquiries of the solicitors for the plaintiff as to the sending of the documents, but upon his evidence he made an extensive investigation at Yuendumu regarding their receipt. Admittedly he made enquiries in January 1990, some months after the date the documents were said to have been despatched (on 16 August 1989), but they involved the police, employees or officers of the Association including a file relating to the plaintiff. He was unable to locate the documents or any record of them. According to him the records of the Association show that Mr Raynal left the Association's employ in July 1989. He was not more specific but I note that Mr Raynal signed a letter in his capacity as Administrator of the Association addressed to the solicitors for the plaintiff dated 24 July 1989, but there is nothing to show that he was employed by the Association or even residing at Yuendumu as at the time the documents ought to have been received, about a month later." 20. I note that Mr Raynal's affidavit of 14 November 1990 shows that his employment with the employer ceased on 28 July 1989. 21. His Honour then discussed further at pp26-30 the vital question whether the claim for compensation had been served on the employer pursuant to s83(1)(b) of the Act, and reached his conclusions, viz:- "Where, however, service is attempted by sending the claim by prepaid post to the employer at the employer's usual or last known place of residence or business (pursuant to s83(1)(b)), absent an acknowledgment of the receipt of the claim, the person making the claim must fall back on any other available means of proving the receipt of the claim. Without direct evidence the claimant might, as here, look to s25 of the Interpretation Act. The question is whether the use of the word "deemed" (in s25 of that Act) is to import a conclusive presumption of a fact or to denote, on the contrary, a rebuttable presumption of a state of fact, that is to say, in the absence of contrary proof. Whether in this context the word "deemed" means one or the other depends upon the true construction of the statutory provision in which it appears. It would be astounding if the deeming in s25 of the Interpretation Act was conclusive. The real possibility of a package not being delivered in the ordinary course of post is too real to have been countenanced by the legislature. Accidents occurring on land and sea and in the air affecting the carriers of mail by post and industrial disputes are all, unfortunately, common enough occurrences which too frequently call in question the prospect of a package which has been posted being delivered in the ordinary course of post. It must be open for evidence to be produced which rebuts the presumption going to the receipt of the package at all or as to the time of its receipt, which may be either earlier than or later than in the ordinary course. To prove that an act has been done, it is admissible to prove any general course of business or office, whether public or private, accordingly to which it would ordinarily have been done, there being a probability that the general course will be followed in the particular case (Phipson 13th Edition paragraph 9-22 and at paragraph 9-23 as to the statutory recognition of that probability in relation to the postal service). This deeming provision (in s25 of the Interpretation Act) operates only where there is no evidence which shows otherwise. The evidence of Mr Haywood, not being contested in any way, strongly suggests that the claim was not received by the Association at Yuendumu. The envelope containing it addressed to Mr Raynal may well have been in the mail bag and delivered into the hands of the Association's representative as the mail agent of the Post Office, but that is not enough to show that the Association as the alleged employer received the claim. What is critical is that the employer should have notice of a claim made against it under the Act and where those who are

employed in the office of the Association recall nothing of the claim, there is no notation as to its receipt, or file in relation to it, then the presumption is displaced. The plaintiff has not brought forward any evidence as to receipt of the documents by the employer association. I am unable to determine whether the time referred to in s85(1) commenced to run and, if so, when it did so. There were other methods of service available to the plaintiff in relation to the claim for compensation against the Association and failing being in a position to prove service by post he should have adopted one of those more definite means of effecting service. As to the legislative intent in regard to s25 of the Interpretation Act reference might be made to the following cases: Gray v Kerslake (1957) 11 DLR (2d) 225 at 239; Consolidated School District of St Leon Village v Ronceray (1960) 23 DLR (2d) 32 at 37; Credit Foncier Franco-Canadien v Bennett (1963) 43 WWR 545 at 548. In Australia see Hunter Douglas Australia Pty Ltd v Perma Blinds [1970] HCA 63; (1970) 122 CLR 49 at 67. As to the specific question of rebutting the statutory provisions as to deemed delivery by post Fancourt and Anor v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at p96. It is neither here nor there that the provision of the legislation there under consideration expressly provided

for contrary evidence to be brought in relation to the deeming as to delivery. Some of the cases have been more recently reviewed by Von Doussa J in re Rustic Homes Pty Ltd (1988) 13 ACLR 105. For the foregoing reasons I find that the employer did not receive the claim for compensation of August 1989. No time has run against it in that regard and it can not be deemed to have accepted liability. There is no other evidence to show that the liability of the employer has been established in accordance with the Act and thus an essential precondition to the making of a claim on the defendant has not been satisfied. Nor am I satisfied that the envelope in which the document was enclosed was properly addressed; another of the preconditions to the deeming of the time for receipt provided for in s25 of the Interpretation Act. It was not addressed to the public officer but to the Administrator of the Association. An envelope or package addressed to the public officer ought to be more likely to receive prompt attention by the responsible person bearing in mind the

provisions for service on Associations contained in the Associations Incorporation Act (s24 of that Act) which, in the event of the document being sent by post, would also attract the (deeming) provisions of s25 of the Interpretation Act. In the view I take of the matter it is not necessary for me to consider whether the deemed acceptance of liability under

s87 of the Work Health Act is rebuttable, nor whether it is open to the insurer to raise by way of defence, in a claim under the Work Health Act against it, defences which might be available to the employer in a claim for compensation. If the insurer is able to raise such defences then they would be matters clearly better left to trial rather than being dealt with on an application for summary judgment. The application is dismissed." 22. The application for summary judgment: the materials relied on by Union: In moving for summary judgment in proceedings No.44 of 1990, Mr Riley relied upon the affidavits of Mr Raynal of 14 November 1990, Mr Haywood of 12 November 1990 and Mr Morris of 6 February 1992. 23. Mr Hiley objected to parts of the affidavit of Mr Raynal as irrelevant, and paras1 and 2, and the first three lines of para3 as hearsay. I consider that para1 is relevant, and establishes for present purposes that Mr Raynal took up duties as Administrator of the employer on 16 May 1988. I uphold the other objections. Mr Raynal's affidavit shows that he ceased working for the employer on 28 July 1989. In November 1988 he said he had completed, on the plaintiff's behalf, and forwarded to Union, a Work Health Claim Form. It is common ground that the plaintiff does not seek to rely on that form. 24. Mr Hiley objected to parts of Mr Haywood's affidavit: to para3, 4 (except as to his own general search and its negative outcome), 5-7, 8 (last 2 lines) and 9, as hearsay. I uphold these objections, with the exception of the first 3 lines of para3, and the last 2 lines of para8. Mr Haywood's affidavit shows that he attended on the employer on 25 January 1990 and there searched for the claim form of 3 August 1989. 25. Mr Hiley objected to para7 of Mr Morris' affidavit of 6 February 1992, as hearsay. I uphold that objection. THE SUBMISSIONS BY UNION 26. Against that background Mr Riley submitted that the sole question to be answered to determine these three applications was whether the provision in s87 of the Act by which, in certain circumstances, the "employer - - shall - -be deemed to have accepted (liability for compensation claimed)", applies to the employer in the circumstances of this case. He submitted that it did not apply, because the prerequisites to its application did not exist. It can be seen that this was the argument before Martin J; however, there is the new matter of an issue estoppel said to arise from the findings of Martin J. 27. (a) Non-receipt by employer of claim form; and issue estoppel: Mr Riley submitted that the plaintiff's claim form of 3 August 1989, for present purposes admitted to have been posted, was never received by the employer. That it was never received had been found as a fact by Martin J (p28). It will be recalled that the obligation on the employer under s85(1)(d) of the Act is to dispute liability "within 7 working days after receiving a claim for compensation". Union's argument runs as it did before Martin J. In a nutshell: the claim of 3 August 1989 was never received, the employer therefore never failed to dispute liability in terms of s85(1)(d) and there was nothing therefore to enliven the deeming provision in s87, s132(1) and 133 accordingly do not apply, proceedings No.44 of 1990 are accordingly without any legal foundation and they should be struck out. It can be seen that the factual foundation for this edifice of inexorable logic is that the Yuendumu Community Council Inc. never in fact received the claim form. That was a specific finding by Martin J on 21 December 1990. What is the legal consequence of that finding for present purposes? 28. Mr Riley submitted that when the plaintiff applied for summary judgment in proceedings No.44 of 1990, he sought to prove as an essential part of his case for that relief, that he had served his claim on his employer under s83(1)(b) of the Act. That is, that the claim of 3 August had been placed in a properly addressed envelope and sent on 16 August 1989 by pre-paid post to Yuendumu Community Council Inc. at its usual place of business. Martin J dismissed the application for summary judgment, on 21 December 1990. Mr Riley submitted that in doing so, his Honour made findings of fact which bind the plaintiff and Union, as parties; that is, those findings are final and conclusive as between the parties, who cannot now, or ever, seek to controvert them. In short, they are now estopped from doing so. One of those binding findings of fact was "that the employer did not receive the claim for compensation of August 1989"; see p28 of Martin J's judgment. Mr Riley submitted that the plaintiff is estopped from controverting that finding of fact, with the consequence that he cannot succeed in action No.44 of 1990, for the reasons set out in the "nutshell" argument above; that is, because the edifice of his claim lacks the necessary foundation of service of the claim. 29. Mr Riley submitted that the only other possible basis on which the plaintiff could found his action No.44 of 1990 against the defendant would be the other "leg" in s132(1)(b) of the Act, that "the employer has agreed to pay compensation". He submitted that affidavit evidence showed that there was no such agreement; and, further, the plaintiff does not contend that any such agreement exists. That does not appear to be formally correct; in para5 of his Statement of Claim the plaintiff alleges:- "The employer has agreed to pay any compensation or the liability of the employer has been established in accordance with the Act." 30. Further, the only affidavit evidence on the point appears to be para7 of Mr Morris' affidavit of 6 February 1992, which was objected to and not received in evidence. 31. As noted above, Martin J found at p28 of his judgment that "the employer did not receive the claim for compensation" and concluded (at p29) that therefore "an essential precondition to the making of a claim on the defendant has not been satisfied". His Honour's judgment is of course under appeal, in proceedings No.AP1 of 1991. Mr Riley submitted that that appeal cannot succeed because his Honour's finding - that the claim was not received by the employer

• is a finding of primary fact, with which a Court of Appeal will not interfere. The characterization of this finding as one of primary fact is not correct; his Honour ruled first (pp26-7, 28) that as a matter of law (and assuming that s25 of the Interpretation Act applied) the deeming provision of s25 involved a rebuttable presumption of service of the claim, permitting proof to the contrary. Having so ruled, he considered the evidence (pp27-8) and held (p28) that it established that in fact the employer had not received the claim form. That ultimate finding of fact depends on the correctness of the earlier ruling of law as to the construction of s25; it cannot be said to be unarguable that the Court of Appeal will take a different view of the construction of s25 - deeming provisions involve notoriously difficult problems.

32. (b) The question whether the envelope was "properly addressed"; and issue estoppel: Mr Riley noted that, for present purposes, it was accepted that the plaintiff's former lawyers on 16 August 1989 had posted a claim form dated 3 August 1989, with a covering letter dated 11 August, in an envelope addressed to "Christopher Raynal, Administrator C.M.B. Yuendumu Community Council via Alice Springs 0872". Section 83(1)(b) of the Act provides for service of a claim by post, but requires that the claim must be placed "in a properly addressed envelope". Mr Riley noted that the evidence before Martin J was to the effect that when the claim was posted on 16 August, Mr Raynal was no longer employed by the Yuendumu Community Council, having left its employment on 28 July 1989. At the time of the accident, 18 October 1988, he had been the Council's "Administrator". Accordingly, Mr Riley submitted that the envelope posted on 16 August 1989 was not "properly addressed", as required by s83(1)(b), in that the name "Christopher Raynal" appeared as part of the addressee. Section 25 of the Interpretation Act, in setting out the circumstances in which service by post is deemed to be effected, also requires as a precondition that the envelope be "properly addressed"; so it advances the plaintiff's case no further, in that respect. Mr Riley submitted that Martin J had found (at p29) as a primary fact that the envelope was not "properly addressed", and that was a finding which could not now be affected by any other evidence. Since that fact was now finally established as between the parties, one of the preconditions to enlivening the deeming provision in s25 of the Interpretation Act had not been met; therefore s25 did not operate, and service of the claim of 3 August 1989 upon the employer was not deemed thereby to have been effected.
33. I observe that his Honour's finding that the envelope was not "properly addressed" was based on the evidence then placed before him in the application for summary judgment. His Honour also found (at p29) that the envelope was "addressed - - to the Administrator of the Association". There was no evidence before his Honour as to extent of the authority of the Administrator.
34. As to what is connoted by "properly addressed", in the two Acts, Mr Riley submitted that service of the claim upon the employer could have been effected under s24(1) of the Associations Incorporation Act, by sending it by post to the employer's public officer; however Mr Raynal was clearly not its public officer. He submitted that the envelope should have been addressed to "Yuendumu Community Council Inc.", not to an individual by name or by office.

• . 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."

36. Mr Riley also referred to Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at p466, per Fullagar J.
37. I note that Carl-Zeiss Stiftung v Rayner and Keeler Ltd (No.2) (1967) 1 AC 853 shows that to set up an issue estoppel arising from the findings of Martin J, Union must establish four matters. First, that the issue in question was also involved in the proceedings before Martin J. That is clear. Second, that the issue was actually litigated and determined before Martin J. That also is clear. Third, that its determination was necessary to his Honour's judgment. Fourth, his Honour's decision on the issue must have been final. As will appear, I do not think that the third and fourth matters have been established.
38. (d) The application to strike out proceedings No.44 of 1990 for want of prosecution: On the application of 26 March 1992 under Rules 48.03 and 24.01 to strike out proceedings No.44 of 1990 for want of prosecution, Mr Riley informed me that nothing had occurred since the pleadings had closed on 26 June 1991, except for certain correspondence concerning discovery; see the annexures to Ms Fong Lim's affidavits of 11 February 1992 (in file AP1 of

1991. and 26 March 1992. In this connection, Mr Riley observed that the cause of action arose in August 1989, the writ had issued in January 1990, but the action had not yet been set down for trial under R48.02.

39. (e) The application to strike out appeal AP1 of 1991: As to the application to strike out the appeal, Mr Riley relied on Mr Morris' affidavit of 6 February 1992. This showed that the judgment of Martin J was delivered on 21 December 1990 and the plaintiff had filed his application for leave to appeal on 1 February 1991. The appeal remained dormant for the rest of 1991 but was restored to the "active" appeals list on 20 January 1992. Mr Riley said that he understood that the plaintiff did not wish to pursue the appeal unless Union amended its Defence in proceedings No.44 of 1990 so as to plead issue estoppel. He said that Union had not yet chosen to do so. THE PLAINTIFF'S SUBMISSIONS
40. (a) General: Mr Hiley QC of senior counsel for the plaintiff made the following submissions. The findings by Martin J in his judgment of 21 December 1990 cannot give rise to an issue estoppel in the hearing of the present applications or at the trial of the action. The only reason that the plaintiff has kept his appeal AP1 of 1991 against Martin J's judgment on foot, is the possibility that it might ultimately be held that the submission above is incorrect and that those findings give rise to an issue estoppel; otherwise, appeal AP1 of 1991 is totally unnecessary.
41. He submitted that it was trite that when ruling upon an interlocutory application, any findings then made on the issues between the parties are made only for the purposes of that application. The final determination of those issues must await the trial of the action. In this connection, Mr Hiley stressed the differences between the hearing of an interlocutory application and the trial of an action. In the former, evidence may be adduced on affidavit and a defendant may rely on hearsay evidence; for example, in the hearing before Martin J, Union had relied pursuant to R22.04(2) on the hearsay evidence contained in the affidavit of Mr Haywood. He submitted that the evidence to be adduced at the trial of the action would be quite different, both in nature and content. Further, the tests applied when making findings on the evidence were different: at trial, findings were made on the balance of probabilities; on an application for summary judgment, such as that before Martin J, facts in issue did not have to be canvassed in detail - a defendant showing cause had only to satisfy the Court under R22.06(1) that there was a real case to be investigated in fact or in law.

On 21 December 1990 Martin J had dismissed an application for summary judgment. For the purposes of that ruling it was unnecessary for his Honour to go as far as he in fact went, in finding that the employer had never received the claim of 3 August 1989; it was sufficient to have found that there was a triable issue as to whether the employer had received it. The finding of non-receipt could not, in any event, be binding at the trial of the action; the question whether the employer had been served was an issue between the parties, for determination at trial. 43. As to Union's application under R23.01(1)(a) or R23.03 for summary judgment in proceedings No.44 of 1990, Mr Hiley submitted that insofar as it relied on the material in the affidavit of Mr Haywood, much of that material was inadmissible as hearsay. I do not think that this submission is necessarily correct; affidavit evidence may be used by any party under R23.04(1), and it may contain hearsay in accordance with R43.03(2). Mr Hiley noted that the application founded on the question of the employer's non-receipt of the claim, the question of the proper address on the envelope, and issue estoppel in relation to both of those questions. He submitted that Union could not rely on the judgment of Martin J to support its application, as giving rise to an issue estoppel, although in fact that is what primarily it had sought to do. He submitted that to establish its case on the application, Union could only rely on the factual material in the affidavits on which it relied. 44. As to whether an issue estoppel arose from the findings of Martin J of 21 December 1990, Mr Hiley noted that his Honour had recounted the evidence placed before him, but had also referred to aspects of the case on which no evidence had been placed before him, although it could have been. For example, his Honour referred at p17 to the authority of the Administrator of the employer, a matter also relevant to the question at p29 whether the envelope had been properly addressed. Again, his Honour had referred at pp24 and 27 to the lack of evidence of the employer's system for handling its incoming mail or claims, noting at p27:- "The plaintiff has not brought forward any evidence as to receipt of the documents by the employer association." Mr Hiley submitted that evidence on these aspects would be adduced at trial. 45. Further, Mr Hiley submitted that a judge at trial would be viewing the (different) evidence before him on a "probabilities" basis, and not on the stricter basis which applies on an application for summary judgment under R22.02(1), where the plaintiff must show clearly that there is no real question to be tried. 46. In summary, then, Mr Hiley submitted as follows. First, the findings by Martin J in his interlocutory judgment of 21 December 1990 could not constitute a basis for issue estoppel. Second, to obtain summary judgment Union was required to establish either that the plaintiff had failed to disclose that he had a cause of action, or that he could not possibly satisfy the court at trial, on the balance of probabilities, that the employer had received the claim form of 3 August 1989. 47. Mr Hiley submitted that for issue estoppel to apply the relevant finding of fact had to be a finding in a final judgment, that is, a judgment which finally determined the dispute between the parties. A finding in an interlocutory judgment could not operate as an estoppel. The judgment of 21 December 1990 was an interlocutory judgment. He also noted that the matters of fact said to ground an issue estoppel ought to be pleaded in the Defence, yet Union had not as yet done so. 48. (b) Plaintiff's supporting materials: Mr Hiley relied on the five affidavits which the plaintiff had been relied on before Martin J, viz: the affidavit of Mr Grimes of 5 September 1990, of Mr Brown of 5 September 1990, of the plaintiff himself of 31 October 1990, of Ms Mitchell of 8 November 1990 and of Mr Hill of 9 November 1990. Mr Riley objected to paras4, 5 and 7 of Mr Grimes' affidavit, as irrelevant; I uphold that objection. 49. In his affidavit the plaintiff deposed to having been injured on 29 October 1988 when driving a motor vehicle whilst in the course of the employer's employment, to his resulting incapacity, and to having completed the claim form on 3 August 1989. Ms Mitchell's affidavit showed that the public officer of the employer since 2 July 1986 was John Stewart, that the employer is an association incorporated under the Associations Incorporation Act, and its address is P.M.B. Yuendumu. Mr Brown is a solicitor employed by the former solicitors for the plaintiff. His affidavit dealt with the posting of the claim of 3 August 1989 to the employer on 16 August. Mr Hill's evidence shows the course of mail delivery from Alice Springs to Yuendumu. 50. Mr Hiley observed that, by way of contrast to these materials, Union had not placed before the court in support of its application for summary judgment any evidence from the employer, the employer's public officer, Mr Raynal's replacement in the employment of the employer, or any evidence as to who was conducting the affairs of the employer at the time the claim of 3 August 1989 should have been received by the employer in the course of post. Mr Hiley submitted that the material adduced by the plaintiff was sufficient to show that there was a dispute as to the facts, a dispute sufficient to prevent Union from succeeding on its application for summary judgment, unless Martin J's judgment of 21 December 1990 created an issue estoppel. 51. As to the application for summary judgment, he submitted that although it was made under O23 the main principles applicable to O22 (applications for summary judgment by a plaintiff) applied. I accept that submission; the relevant principles applicable to applications under O22 are conveniently set out in Australia and New Zealand Banking Group Ltd v David (unreported, 6 December 1991), at pp2-4 and 9-10. I also accept that when, as here, in an application for summary judgment, it is clear that not all the evidence is before the Court, the proper course is to take the view of the facts which on the evidence is most favourable to the plaintiff, and on that basis to decide whether the action is hopeless; see P.J. Constructions (Vic) Pty Ltd v Nyko (unreported, Supreme Court of Victoria, 29 October 1981). 52. It followed, in Mr Hiley's submission, that in light of the effect of the evidence adduced by the plaintiff, the only basis on which Union could rely was that an issue estoppel had been created. As to that, he contended, as indicated earlier, that an issue estoppel arose only where the previous judgment was a final judgment; and further, if it was a final judgment, only where the finding in question was fundamental to that judgment. He submitted that the judgment of 21 December 1990 was not a final judgment, relying on the authorities conveniently cited in Heller Financial Services Ltd v Solczaniuk ; at 316. His submission was that since the judgment of 21 December 1990 did not conclude the rights of the parties inter se, it was of an interlocutory nature. 53. I noted earlier his submission that the finding at p28 of the judgment of 21 December 1990 which was relied on as constituting an issue estoppel was not fundamental to that judgment. 54. As to the applications to strike out proceedings No.44 of 1990 and appeal AP1 of 1991, Mr Hiley noted that R48.03 enabled a defendant to set down a proceeding for trial if the plaintiff failed to do so under R48.02; he submitted that that was the proper course of action for Union to have taken. He noted that the evidence disclosed that the parties had been corresponding both on the question of discovery and the question whether Union was going to plead issue estoppel. He submitted that the correspondence showed why it was that the plaintiff wished to defer a hearing of the appeal until the point concerning issue estoppel had been cleared up. 55. In Mr Hiley's submission, all three applications should be dismissed. CONCLUSIONS 56. For Union's application for summary judgment under O23, whether under R23.03(1)(a) or R23.03, to be successful it must show that the plaintiff's case is unsustainable in fact or in law. Order 23 is intended as a means for dealing with actions which are absolutely hopeless, those so obviously frivolous or unsustainable or untenable that it is plain and beyond rational debate that they cannot succeed. The power under O23 is to be exercised by a Court with great caution; an applicant bears a heavy burden. If the plaintiff shows an arguable case, one which is not unworthy of serious discussion and of evidence being led, a case not hopeless beyond argument, an application under O23 should be dismissed. The question is whether it would be open to the plaintiff on the pleadings to prove facts at trial which would constitute a cause of action; see Mutual Life and Citizens Assurance Co Ltd v Evatt ; at p631. The affidavit process is unsuitable when facts are in dispute, and this also points to the jurisdiction being exercised only when the case is obvious and clear beyond doubt. 57. Setting aside the question of issue estoppel, I do not consider that Union has discharged the burden on it to establish the matters referred to above; that is, I am satisfied that the plaintiff has an arguable case. 58. I turn to the question whether the plaintiff is estopped by the findings of fact at p28 in the judgment of 21 December 1990, that the employer did not receive the claim of 3 August 1989, and that the envelope was not properly addressed. Union contends that the plaintiff is thereby estopped from relying on a fact essential to his action - that his claim was in fact served on his employer. 59. I accept Mr Hiley's submission that an issue estoppel cannot arise unless there is a final judgment between the parties; that is, a judgment which finally determines their dispute. The judgment of 21 December 1990 was not, in my opinion, of that character. It was an interlocutory judgment, and that will not suffice to create an issue estoppel; see Somodaj v Australian Iron and Steel Ltd ; , and Morgan v Odhams Press Ltd at p1253 and 1263. Judgments are conclusive as between parties, as to the facts thereby decided. But this is not the case with interlocutory judgments; see Huntly (Marchioness of) v Gaskell at p667, per Cozens-Hardy LJ. An application for summary judgment is interlocutory in its nature; the fact that it fails does not mean that the plaintiff is forever barred from renewing it, though R22.02(4) requires that he first obtain an order from the Court to do so. 60. Accordingly, I think the argument that the plaintiff is estopped by the findings in the judgment of 21 December 1990 must fail. The application for summary judgment must be dismissed. 61. As to the applications to strike out proceedings No.44 of 1990 and AP1 of 1991 for want of prosecution, it is sufficient to say I consider that in the circumstances revealed it would be wholly inappropriate to make such orders. Those applications are dismissed. OBSERVATIONS 62. If Union considers that it should pursue the issue estoppel argument, it is open to it to seek leave to plead issue estoppel in its Defence under R13.02(2), and to apply under R47.04 to have that question tried as a preliminary issue. As to the advantages of this course see the observations of Walsh J in Co-Ownership Land Development Pty Ltd v Queensland Estates Pty Ltd at pp521-2. 63. I consider that these proceedings should not remain in their present "stagnant" state, as Mr Riley described it. Mr Riley asks that action No.44 of 1990 be stayed until appeal AP1 of 1991 is heard, and that the appeal (or application for leave to appeal) be listed for early hearing before the Court of Appeal. I consider that it is preferable that both proceedings No.44 of 1990 and AP1 of 1991 be referred to the Registrar to monitor their respective progress and to issue the directions necessary to ensure that they flow again. As a first step, I order pursuant to R48.05 that proceedings No.44 of 1990 be set down for trial; and, pursuant to R48.07(1), that a listing hearing of that action take place without a duly completed Certificate of Readiness for trial being filed. This will enable the Registrar to give early consideration to the matters listed in R48.09(3), and to keep those matters under continual review. 64. I note that the type of litigation embodied in proceedings No.44 of 1990 can hardly be what the legislature had in mind when it passed the Work Health Act into law. Yet that litigation stems directly from the provisions of the Act and it is, I think, likely to increase. The reason in my opinion is that the period of "7 working days" in s85(1) of the Act takes insufficient account of the realities of outback Territory life. Some relaxation of the rigidity and brevity of that time limit is essential if claims are to be litigated on their merits before the Work Health Court instead of devolving into complicated litigation such as this, in which the issues bear no relationship to the merits of the case at all. I respectfully commend the matter of appropriate amendments to the attention of the legislature as worthy of consideration. ORDERS 65. Union's applications are dismissed. The plaintiff must have his costs. The other orders I have made to expedite this litigation are set out on p26.