Draxler v Workcover/Hih

7. Mr Cunningham IM observed that at page 2 of the transcript that the issue before him was whether there was an enforceable contract of employment covering the particular week in question.

8. Mr Cunningham IM heard evidence from both the applicant and the respondent and then concluded:

`I cannot feel in my own mind that I am persuaded to the requisite degree by Mr Draxler that his evidence is necessarily right, with the implication that that of Mrs Blanks is necessarily wrong...

That being the case, and for the reasons that I pointed out to Mr Draxler, he being the party bearing the onus of proof on the matter, he must be held to have failed to discharge that onus, and his application in this respect should be, and is, dismissed. This is the court's ruling.'"

2 The deponent quoted McKenna LJ's judgment in Readymix Concrete (South-East) Ltd v Minister of Pensions and National Insurance (1968) 2 QB497 who observed that an essential ingredient of any employment relationship is the payment of a wage.

3 The answering affidavit sworn by the worker - on 12 September 2000 is of no assistance to me. Its lack of direction to the point in issue probably flows from the arcaneness of Mr Shopov's affidavit.

4 For a party to have summary judgment it must fulfil the criteria adumbrated in General Steel Industries v New South Wales Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125. That has been adopted in innumerable cases since then. The cases have been collected in my judgment in Sutton v South Australia Water Corporation [2000] SAWCT 100.

5 The test is that the onus is on the applicant to show that there is no real question to be tried.

6 The cases on the law on issue estoppel are legion. They have been conveniently collected by Judge Gilchrist in Ruf v General Motors Holdens Automotive Ltd JD77/1998 and the Full Tribunal which upheld his Honour's judgment. This is reported at JD35/1999.

7 The essence of the doctrine was defined by Sir Owen Dixon in Blair v Curran (1939) 62 CLR at 531:-

"A judicial determination directly involving an issue of fact or of law disposes once for all the issue, so that it cannot afterwards be raised between the same parties or their privies."

"... a judgment is conclusive evidence not merely of the facts directly decided but of those facts which are necessary steps to the decision - so cardinal to it that without them it cannot stand."

8 The law on this matter is adequately summarised in Phipson on Evidence 13 ed which starts at 614, par 28. The principle there is said to be:-

"A final adjudication of legal dispute if final as between the parties to the litigation and their privies as to material matters decided, and cannot be challenged in subsequent litigation between them."

9 At 615 the learned author says under the heading Same Party Or Their Privies:-

"The corollary of the rule that judgments are binding on parties and privies is that judgments can have no such effect as between strangers or a party and a stranger."

"The principle that estoppel by judgment operates only between the same parties and their privies is strictly applied. In some cases, the technical requirements of estoppel may be circumvented by the court by resort to the court's inherent jurisdiction to strike-out frivolous or vexatious claims. This will be done only in the most extreme cases. Where a true estoppel is the only ground on which a claim or defence may be held barred in limine, that is in the vast majority of cases, the technical requirements must be satisfied."

10 The learned authors go on to discuss numerous applications of the rule. There must be, for example, identity of interests.

11 In the commentary in Cross on Evidence the issue of the "identity of parties and capacity" at par 5040, the learned author says:-

"It is a requirement of both res judicata and issue estoppel that there be identity of parties. This will usually be satisfied by an examination of the respective records to determine who actually is a party to each of the proceedings, although as will be seen in considering the Carl Ziess Stiftung v. Rayner and Keeler Ltd (No 2) (1967) 1 AC 853, it will be sometimes necessary to look beyond the title to an action...

The unusual case of Carl Ziess Stiftung v. Rayner and Keeler Ltd (supra) shows that the requirements of identity and privity are narrowly construed by the English courts." (Par 5055)

12 In par 5055, following a series of examples both in Australia and in the United Kingdom, the dicta of Sir Garfield Barwick in Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 are quoted.

"Barwick CJ identified the necessary relationship in these terms:-

`The basic requirement of a privy in interest is that the privy must claim under or through the person of whom he has said to be a privy.'

"But the relationship must be such that the supposed privy obtains a benefit or incurs an obligation from the preceding action. It is not sufficient that he is merely concerned, even commercially concerned in that action, or that he provided financial backing to the party in the earlier action."

13 Par 5060 quotes part of the judgment of the Vice-Chancellor in Gleeson v J Whipple and Co Ltd (1977) 3 All ER 54 at 60.

"I do not say that one must be the alter ego of the other; but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party. It is in that sense that I would regard the phrase `privity of interest'."

15 The parties in the Industrial Relations Court are Frederick Anton Draxler, applicant, Robert Blanks, respondent.

17 The applicant appeared in person; the respondent appeared in person.

(1) Whoever might be the parties before this Tribunal, neither HIH Insurance (SA) Ltd nor its principal, WorkCover Corporation, were parties before the Industrial Magistrate.

(2) It is undeniable that HIH and/or WorkCover Corporation is a party before the Tribunal.

19 The only basis on which the respondent's application can succeed on an estoppel ground would be to show that HIH and/or WorkCover were parties or could claim a privity of interest in the proceedings before the Industrial Magistrate, which was a wage claim.

20 Bearing in mind the authorities that I have quoted, I fail to see how the respondent could possibly bring itself within those authorities. This is a matter in which the identity of parties is strictly construed. The record shows that the Agents and the Corporation were not parties before the Industrial Magistrate - it has not been demonstrated that the Corporation or HIH "obtains a benefit" or "incurs an obligation" from the preceding action, in a sufficiently direct fashion as to make out the basis for estoppel (Carl Zeiss (supra)).

22 Mr Stanley properly concedes that Ruf v GMH (supra) has nothing to do with this case. It stands for a .principle which is exactly the opposite to that being argued here.

23 I am certainly not persuaded that the Corporation - even if one accepts that it stands in the shoes of the employer for the purposes of the Workers Rehabilitation and Compensation Act, has any or sufficient identity with the respondent in the Magistrates Court to bring it within the strict interpretation of "parties".

24 The interest of the Corporation at the very highest, has been elegantly put by Mr Stanley, who submits that the Corporation has a "dormant contingent interest" in the proceedings before the Industrial Magistrate. Accepting that whatever that phrase might mean, it is not sufficient to raise an estoppel in this case.

25 I therefore dismiss the application. I order that the Corporation pay the worker costs of and incidental to this application.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.