Decision
60 Estoppel in its application is "informed by considerations of finality and fairness": Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [21], French CJ, Bell, Gageler and Keane JJ. In that case the Court held that an injured worker, in a claim for damages for personal injury suffered at a workplace, was not precluded by issue estoppel from contending that his employer was Tempus Holdings Pty Ltd, despite a finding by this Court in civil penalty proceedings that Ramsay was the employer, that Tempus Holdings acted on its behalf and that the interposition of Tempus Holdings was a sham. The plurality at [22] expressed the principle as:
…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 judgment. 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"…
Footnotes omitted.
61 The last sentence is a reference to Blair v Curran (1939) 62 CLR 464 at 531 (Dixon J) which decision was emphasised in submissions before me by Dr Higgins as establishing that in this proceeding the Full Court's determination of the derivative Crown immunity issue was "necessarily established as the legal foundation or justification" for its conclusion: Blair at 531. Further emphasis is placed on the reasoning of Dixon J at 532:
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.
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 conclusion 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. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.
Footnotes omitted.
62 Mayfield does not seek to differently characterise the centrality of the derivative Crown immunity issue before the Full Court. Nor is this a case about whether Mayfield is a privy and it was not submitted that it would be open to me to reason in line with certain Canadian authorities that active participants may be regarded as parties: for example, Banque Nationale de Paris (Canada) v Canadian Imperial Bank of commerce (2001) 195 DLR (4th) 308 and Minott v O'Shanter Development Co (1999) 168 DLR (4th) 270, each decisions of the Ontario Court of Appeal.
63 Rather, the answer to the first question turns on whether Mayfield's participation as intervener in the ACCC Appeal now binds it to the outcome. The commencing point for the analysis is the grant of leave to intervene. Rules 36.31 and 36.32 of the Rules should be read together. The first provides for parties to an appeal. By r 36.31(1) the parties to the primary proceeding who may be affected by the relief sought "or who may be interested in maintaining the judgment under appeal, must be joined as an appellant or respondent to the appeal." A person not a party to an appeal but mentioned in that rule may apply to be joined as a party: r 36.31(4). Rule 36.32 then provides:
Applications to intervene
(1) A person who was not a party to the proceeding in the court appealed from may apply to the Court for leave to intervene in an appeal.
(2) The person must satisfy the Court:
(a) that the intervener's contribution will be useful and different from the contribution of the parties to the appeal; and
(b) that the intervention would not unreasonably interfere with the ability of the parties to conduct the appeal as they wish; and
(c) of any other matter that the Court considers relevant.
Note 1: The role of the intervener is solely to assist the Court in resolving the issues raised by the parties.
Note 2: The Court may give leave to the intervener to intervene on conditions, and with the rights, privileges and liabilities (including liabilities for costs), determined by the Court.
Note 3: When giving leave, the Court may specify the form of assistance to be given by the intervener and the manner of participation of the intervener and, in particular:
(a) the matters that the intervener may raise; and
(b) whether the intervener's submissions are to be oral, in writing, or both.
64 The Dictionary at Schedule 1 to the Rules defines party as meaning a person who is a party to a proceeding. There is no definition of intervener. There is authority that an intervener acquires the privileges of a party with full participation rights, as discussed by Black CJ in Forestry Tasmania at [5] - [6]. An example is Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391; (1974) 24 FLR 44, a case where the Commonwealth was granted leave to intervene at trial. On appeal Hutley JA, at 396, expressed the role and function of an intervener at trial as:
A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party.
Thus, he can appeal, tender evidence and participate fully in all aspects of the argument. His position is quite different from that of an amicus curiae.
65 In Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 leave was granted to media companies, an industrial organisation, and the Australian Press Council to intervene for some and for others to be heard as amicus. Chief Justice Brennan expressed the justification for a grant of leave to intervene, in a case involving constitutional questions and absent statutory authority (s 78A of the Judiciary Act 1903 (Cth)), relevantly at 601 - 602:
If there be jurisdiction apart from s 78A to allow non-party intervention, it must be an incident of the jurisdiction to hear and determine the matters prescribed by the several constitutional and statutory provisions which confer this Court's jurisdiction. It is of the nature of that jurisdiction that it should be exercised in accordance with the rules of natural justice. Accordingly, its exercise should not affect the legal interests of persons who have not had an opportunity to be heard. Therefore, a non-party whose interests would be affected directly by a decision in the proceeding - that is, one who would be bound by the decision albeit not a party - must be entitled to intervene to protect the interest liable to be affected. This, indeed, is the explanation of many of the cases in which intervention has been allowed in probate and admiralty cases and in other cases where an intervener and a party are privies in estate or interest.
But the legal interests of a person may be affected in more indirect ways than by being bound by a decision. They may be affected by operation of precedent - especially a precedent of this Court - or by the doctrine of stare decisis. Apart from the obsolete exception contained in s 74 of the Constitution, an exercise of the jurisdiction conferred on this Court is not subject to appeal nor to review by any other court. As this Court's appellate jurisdiction extends to appeals, whether directly or indirectly, from all Australian courts, a decision by this Court in any case determines the law to be applied by those courts in cases that are not distinguishable. A declaration of a legal principle or rule by this Court will govern proceedings that are pending or threatened in any other Australian court to which an applicant to intervene is or may become a party. Even more indirectly, such a declaration may affect the interests of an applicant either by its extra-curial operation or in future litigation. Ordinarily, such an indirect and contingent affection of legal interests would not support an application for leave to intervene. But where a substantial affection of a person's legal interests is demonstrable (as in the case of a party to pending litigation) or likely, a precondition for the grant of leave to intervene is satisfied. Nothing short of such an affection of legal interests will suffice.
Footnotes omitted.
66 At 603 His Honour expressed that "an indirect affectation of legal interests enlivens no absolute right to intervene" for the straightforward reason that to permit intervention on that basis would "virtually paralyse the exercise" of the Court's jurisdiction. He continued:
However, where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene. The grant may be limited, if appropriate, to particular issues and subject to such conditions, as to costs or otherwise, as will do justice as between all parties. In that situation, intervention may prevent an error that would affect the interests of the intervener. Of course, if the intervener's submission is merely repetitive of the submission of one or other of the parties, efficiency would require that intervention be denied.
Footnote omitted.
67 Returning to Forestry Tasmania, the immediate predecessor to r 36.32 of the Rules, was O 52 r 14AA of the Federal Court Rules 1979 (Cth) which provided:
Interveners
(1) The Court may give leave to a person (the intervener) to intervene in the appeal, on the terms and conditions, and with the rights, privileges and liabilities (including liabilities for costs), determined by the Court.
(2) In deciding whether to give leave, the Court must have regard to:
(a) whether the intervener's contribution will be useful and different from the contribution of the parties to the appeal; and
(b) whether the intervention might unreasonably interfere with the ability of the parties to conduct the appeal as they wish; and
(c) any other matter that the Court considers relevant.
(3) The role of the intervener is solely to assist the Court in its task of resolving the issues raised by the parties.
(5) When giving leave, the Court must specify the form of assistance to be given by the intervener and the manner of participation of the intervener, and, in particular, must specify:
(a) the matters that the intervener may raise; and
(b) whether the intervener's submissions are to be oral, in writing, or both.
68 There was no subrule (4).
69 Something should be said of the change in drafting between that provision and r 36.32 of the Rules. The style has been somewhat altered. The former subrules (1), (3) and (5) are now respectively notes (2), (1) and (3). The Explanatory Statement to the 2011 Rules (SLI 134/2011) includes this statement about the drafting style:
The new Rules do not substantially alter existing practice and procedure but rather explain it in a way that it can be more easily followed and applied.
70 The notes appended to the present rule serve as an aid to interpretation: Clement v Comcare [2011] FCA 404; (2011) 194 FCR 24. I accept that it was not the purpose of the changes to alter the practice of the Court and that regard may be had to s 15AC of the Acts Interpretation Act 1901 (Cth) (use of a different form of words is not to be taken as departing from the former expression of an idea): Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd (No 4) [2017] FCA 436 at [24]-[28], Perram J. However, approaching the question through that lens does not directly confront the issue. Provisions of the former rule that determined the role of an intervener and obliged the Court to specify the form of assistance and the manner of participation are now expressed as notes and there is no obligation to specify (and by implication limit) the role of the intervener.
71 In any event, I need not consider the implications of these changes further because the fact is that the Full Court's order limited Mayfield's form of assistance and the manner of its participation to its written submission. No other rights or privileges were conferred. No liabilities were attached, save that the costs of intervention were reserved.
72 Returning to Forestry Tasmania, as Black CJ further explained (addressing rule 14AA) distinction is now drawn between interveners and parties: a person granted leave to intervene is not a party: [8] - [12]. Of particular relevance to this case is his Honour's reasoning at [8]-[9]:
These rules demand a departure from the previous practice. As well as providing for the grant of leave on terms and conditions, they specify matters to which the Court must have regard in deciding whether to give leave, they define and limit the role of the intervener and they require the Court to specify the matters that the intervener may raise. In deciding whether to give leave, the Court is required to have regard to, inter alia, whether the intervener's contribution will be useful and different from the contribution of the parties to the proceedings. In this way the rules draw an express distinction between interveners and parties.
The new rules provide that the role of an intervener is solely to assist the Court in its task of resolving the issues raised by the parties. Again, the distinction is expressly drawn between interveners and parties. Further, when giving leave the Court is required to specify the form of assistance to be given by the intervener and the manner of the participation of the intervener.
73 The Full Court endorsed that reasoning in Casson at [53].
74 Relevant to derivative Crown immunity, Mayfield's written submissions contended that upon a proper construction the CCA applies to the Crown, the expressions Crown immunity and derivative Crown immunity are outdated and apt to mislead and that s 51(1)(b) of the CCA covers the field in that anything done in a State, if specified in and specifically authorised by an Act of that State, is to be disregarded in determining contraventions of the restrictive trade practices provisions thereby excluding any residual principle of derivative Crown immunity. Mayfield further submitted that the State was carrying on a business within the meaning of s 2B(1) of the CCA.
75 An important, but by no means determinative consideration, is that Mayfield could not have successfully applied for special leave to appeal from the decision of the Full Court to the High Court, and I reject the submissions of NSW Ports to the contrary. The question is not whether Mayfield as a non-party may have been entitled to seek special leave (Cuthbertson at 25), rather that it could not have successfully obtained it where it had no standing to overturn findings of fact (which it did not dispute when it sought and was granted conditional leave to intervene). Absent overturning those findings, Mayfield could not argue that the orders made should be set aside, a position fatal to a grant of special leave. Put another way, an application for special leave to appeal by Mayfield could rise no higher than an invitation to determine a hypothetical question. The arguments of NSW Ports do not engage with that aspect of finality and fairness: Tomlinson at [21].
76 I turn next to the submission of NSW Ports that the doctrine of issue estoppel is not confined to parties in the strict sense but extends to interveners, and on that basis attaches to Mayfield: Marlborough Gold at 503. That case concerned a scheme of arrangement pursuant to Corporations Law. The company proposed a scheme to change its status from a company limited by shares to a no liability company. At the time, the company believed that a scheme of that type was capable of being approved pursuant to s 411 of the Corporations Law. In May 1992, the company filed an originating summons to effect the alteration. It gave notice to the Australian Securities Commission, which informed the company that it would not make submissions in opposition to the proposed scheme. The summons was returnable before Commissioner Ng of the Supreme Court of Western Australia. On the return date (at which the Commission appeared) orders were made that a meeting be convened to consider the scheme. On 25 June 1992, the members resolved to approve the scheme. Thereafter the Commission advised the company that it would oppose approval of the scheme, as contrary to the decision of the Full Court of this Court in Windsor v National Mutual Life Association of Australasia Limited (1992) 34 FCR 580 in which it was held that s 411 could not be employed for that purpose. The Commission appeared at the second hearing before Commissioner Ng and opposed approval of the scheme. Despite those submissions, Commissioner Ng did not follow Windsor, as he considered that the attention of the Full Court had not been drawn to a distinction between certain provisions, and in any event determined that he would follow other single judge decisions.
77 The order approving the scheme was made on 20 October 1992. On 21 October 1992, the Commission exercised its right to intervene pursuant to s 1330(2) of the Corporations Law and then filed a notice of appeal. The Full Court of the Supreme Court of Western Australia dismissed the appeal. The Commission successfully appealed to the High Court. In the High Court, the company by notice of contention asserted that the Commission was estopped from contending that the scheme could not be validly approved which was put as an issue estoppel or in reliance upon The Commonwealth v Verwayen (1990) 170 CLR 394.
78 In the joint reasons of Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ, their Honours rejected the notice of contention. The issue estoppel point was rejected for three reasons. First, the orders made authorising the convening of the meeting of the company did not amount to a final determination of whether the scheme was capable of being approved pursuant to s 411 of the Corporations Law. That order was made in an interlocutory proceeding: 504-505.
79 Second, that order did not decide whether s 411 could be utilised, because "s 411(1) does not require the judge to make a final determination of the question whether the arrangement is one which falls within the scope of the section.": 505.
80 Third, the issue estoppel doctrine "does not apply because the Commission was neither a party nor an intervener when the matter came before the court on the application for leave to summon meetings": 505. The explanation why (at 505-506) is central to the arguments in this case:
The Commission appeared at that stage of the proceedings because notice was given to it pursuant to s.411(2)(a) and because the Court is required by s.411(2)(b) to be satisfied that the Commission has had a reasonable opportunity to examine the arrangement and the draft explanatory statement and to make submissions in relation to them. The fact that the Law requires that notice be given to the Commission does not make the Commission a party. Nor, in our view, does the fact that the Commission appeared to announce its attitude make it a party. That, if anything, was something done by way of making information available to the Court. Spencer Bower and Turner's The Doctrine of Res Judicata states ((41) 2nd ed. (1969), p 200.):
"For the purposes of estoppel per rem judicatam, a 'party', in proceedings in personam, means not only a person named as such, but also one who intervenes and takes part in the proceedings, after lawful citation, in whatever character he is cited to appear, or who, though not nominatim a party insists on being made so, and obtains the leave of the court for that purpose."
The Commission may exercise a right to intervene in a proceeding relating to a matter arising under the Law ((42) s.1330(1).) and, if it does so, it is deemed to be a party ((43) s.1330(2).). The Commission did intervene but that was after Ng C. had given his decision under s.411.
Footnotes omitted
81 Their Honours then turned to the Verwayen point and rejected it for two reasons. Relevantly, that the application of s 411 to the scheme was not decided on the first return of the summons, and it was neither unjust nor unconscionable for the Commission to depart from the position that it had taken at the first hearing: 506.
82 Mr Walker is correct to submit that the Court's reference to an intervener was in the context of s 1330 of the Corporations Law where, upon exercise of the statutory right, the Commission was deemed to be a party with full participation rights, which is in contrast to the present case.
83 NSW Ports submit the concept of an intervener in Marlborough Gold is not limited to one who by force of a statutory provision has the same status as a party. So much may be accepted, but that does not directly answer the issue in this case. Dr Higgins accepted as much in oral submissions. The focus of attention in this case must be upon the degree and nature of participation by Mayfield which is a matter of evaluative assessment.
84 In this case, Mayfield did not press to be heard orally on the appeal and ultimately limited the application for leave to intervene to the terms of the written submission. The order granting leave did not confer rights or privileges of participation beyond the matters set out in the written submission. Although there is merit in the argument that Marlborough Gold is distinguishable because the reference to interveners was confined to those deemed to be a party with full rights of participation, it is not necessary to decide this case on that basis as there is a narrower pathway which focuses on the nature and degree of participation by Mayfield.
85 One may put to one side, the procedural steps before Jagot J, together with the solicitors' explanations and justifications for those steps. An issue estoppel arises if at all from what occurred in the Full Court, even where, as here, an appeal is dismissed: see the discussion by Giles J in Bankstown Football Club Ltd v CIC Insurance Ltd (1998) 10, ANZ Insurance Cases 61-406 at 74,458- 74-459 and Spencer Bower and Handley: Res Judicata (6th ed, 2024, LexisNexis) at [2.33].
86 The reference to Spencer Bower in Marlborough Gold at 505 is to the second edition published in 1969. The passage referenced is [229] for which no supporting authority is cited. In Spencer Bower and Handley, the corresponding passage is [9.11] where the principle is relevantly stated as:
The parties to proceedings in personam include a person who intervenes and takes an active part[1]. A public authority, notified pursuant to statute, which appeared and merely announced its attitude did not become a party[2]. Whether an intervener becomes a party depends on the extent to which it participates[3]. Under a rule which originated in the probate jurisdiction any person claiming an interest in the estate could intervene and if he stood by and allowed the litigation to be conducted by others in the same interest he was bound by the result[4]. The Privy Council and the High Court of Australia have applied this principle to land disputes[5] and it was then applied to joint tortfeasors. Stuart-Smith LJ said that although the rule may have originated in the probate jurisdiction 'justice and common sense [did not] require it to be so confined'.
87 Footnote (1) references Tebbutt v Haynes [1981] 2 All ER 238 and Cheesman v Walters (1997) 77 FCR 221 at 227 and states that the point was overlooked in Iberian UK Ltd v BPB Industries Plc [1997] ICR 164.
88 Tebbutt is a divorce and property settlement case where the spouses lived at the home of the husband's mother. An informal family arrangement was agreed to the effect that the husband would undertake alterations and improvements to the home and, following completion, it would then be sold to facilitate the purchase of a larger home to accommodate all parties. The husband undertook the renovations, the home was sold and a new one was purchased solely in the name of the husband. The husband and wife did not occupy the property for long. The husband's mother and his aunt continued in occupation. The husband and wife separated, and the wife obtained a divorce. She applied to a Family Division judge for an order that the home be transferred to her as the legal and beneficial owner. The husband's mother and his aunt were given leave to intervene in the wife's application. It was ordered that the home be transferred to the wife.
89 The husband's mother appealed to a single judge (Hollings J) who determined that the mother was entitled to an equitable interest in the home and further found that the husband had contributed to the purchase of the home and therefore the wife did not have a claim to an equitable or legal interest except to the extent that the husband had contributed to the purchase of the property. Separately, the mother commenced her own proceedings in the Chancery Division, prior to the publication of judgment by Hollings J, against the wife and the husband and claimed an interest in the property. In that proceeding the wife counterclaimed for a declaration that she was entitled to a 90% beneficial interest, or such other interest as the court may determine. On the trial of a separate question, whether the wife was estopped from asserting that she was entitled to an equitable interest, Vinelott J determined that the findings of Hollings J did not give rise to an estoppel, because there was no jurisdiction to determine property rights as between the wife and the mother. The mother appealed.
90 In the Court of Appeal, it was held that the Family Division did have jurisdiction to determine property rights as between parties to a marriage and a third party and that the wife was estopped. Lord Denning MR delivered the principal reasons with whom Brightman and Griffith LJJ agreed. In his inimitable style, Lord Denning at 242 resolved the estoppel question as follows:
The next point is whether there is an issue estoppel. These matters were decided by Hollings J after full inquiry and evidence. Can they be reopened again in subsequent Chancery proceedings? The case was decided by Hollings J in 1975. If it is to be fought out again in Chancery proceedings, goodness knows when the action will come for trial. It is not anywhere near trial at the moment. And just think of the expense, all on legal aid.
We considered the question of issue estoppel recently in McIlkenny v Chief Constable of West Midlands Police Force [1980] 2 All ER 227, [1980] QB 283. I ventured to suggest this principle: if there has been an issue raised and decided against a party in circumstances in which he has had a full and fair opportunity of dealing with the whole case, then that issue must be taken as being finally and conclusively decided against him. He is not at liberty to reopen it unless the circumstances are such as to make it fair and just that it should be reopened.
Counsel for the wife has sought before us this morning to say that there are circumstances here in which it would be fair and just for it to be reopened. But I must say that none of them is of any weight. This case was fully tried out in 1975. It should not be reopened in 1980 on the suggestion of fresh evidence or the like. The issues as to the rights and interests of the parties in the house at Hoppers Road were decided by Hollings J in 1975. That decision is conclusive between them.
91 In short concurring reasons, Brightman LJ at 244 said:
The principle involved is that of issue estoppel. A person should not have to fight all over again the self-same issue that has been decided before, provided that the party against whom the estoppel is raised has had a fair and full opportunity to contest the issue, so that it would not be just to allow him to reopen the matter in subsequent proceedings.
92 Griffiths LJ agreed with Lord Denning MR and Brightman LJ.
93 The emphasis in each judgment of a "full and fair opportunity" to deal with the whole case or the issue is presently of note, though the obvious distinction with the present case is that the Full Court did not have jurisdiction to make any order affecting the rights of Mayfield in the ACCC Proceeding.
94 Cheeseman was a bankruptcy case where one issue concerned the status of the Attorney-General who had intervened before a primary judge in proceedings where it was contended that the delegation of powers to registrars was beyond the legislative power of the Commonwealth and that s 31A(1)(n) of the Bankruptcy Act 1966 (Cth) was invalid. The Attorney-General intervened in support of the validity of the provision. The primary judge held the provision valid. The bankrupts appealed to the Full Court, which dismissed the appeal. Upon the hearing of the appeal, the bankrupts were given leave to amend the notice of appeal, including deletion of a claim for damages against the Attorney-General, who then applied to be removed as a party. That motion was dismissed, for the reason that the Full Court determined that the Attorney-General was not a party to the appeal, although he was by force of s 78A of the Judiciary Act 1903, a party to the primary proceedings.
95 At the time, s 78A(3) provided:
Where the Attorney-General of the Commonwealth or of the State intervenes in proceedings in a court under this section, then, for the purpose of the institution and prosecution of an appeal from a judgment given in the proceedings, the Attorney-General of the Commonwealth or of the State, as the case may be, shall be taken to be a party to the proceedings.
96 The Full Court in joint reasons (Hill, Heerey and Sundberg JJ) held that this provision, having been inserted to remove doubts as to the right of the Attorney-General to appeal, did not operate to make the Attorney-General party to an appeal brought by someone else: 227. In reasoning to that conclusion, by reference to Order 52 r 14 of the Federal Court Rules 1979, the Court proceeded on the basis that: "an intervener becomes a party to the proceedings and has all the benefits and burdens of a party, including the right to appeal": 227. As I have explained, the position in this case is now determined by r 36.32 of the Rules and Cheeseman is distinguishable for the reasons given by Black CJ in Forestry Tasmania at [5]-[9]. Further, Cheeseman is not a case about when the degree of participation by an intervener, who is not a party, engages the issue estoppel doctrine.
97 In Iberian, the plaintiff commenced an action for damages against several defendants for abuse of market power. That question had been determined adversely to the defendants in proceedings before the European Commission and, on appeal, to the Court of First Instance and on further appeal to the European Court of Justice.
98 In the English proceeding, the defendants denied that they had abused their market power. The plaintiff wished to rely on the European decisions as conclusively determining that question. The plaintiff formulated four separate questions, designed to elicit answers that the European proceedings were conclusive of the abuse of market power issue and were admissible for that purpose in the English proceeding. The plaintiff argued that the defendants were bound by an issue estoppel or that otherwise their denial of abuse of their market power was of itself an abuse of process.
99 The plaintiff was not a party to the European proceedings, but did participate therein to the extent recorded in a submission made, which Laddie J accepted, that it "took a full part in the proceedings before each of those courts, was represented by lawyers and was able to put forward submissions on all the material before the court, but also to the fact that in both of the Court of First Instance and the Court of Justice and order for costs was made in the plaintiff's favour": 177.
100 Justice Laddie held that such participation did not give rise to an issue estoppel but did amount to an abuse of process. His reasoning may be shortly summarised. The proceeding before the European Commission was administrative, not judicial, the appeal proceedings were judicial, but the plaintiff was not a party thereto and therefore no issue estoppel arose. Putting to one side that it is not quite correct that because a tribunal is administrative the doctrine cannot apply (Spencer Bower and Handley at [2.03] and [2.05]), on the party/non-party issue, his Honour when stating the principle only referenced party cases, such as Mills v Cooper [1967] 2 QB 459 at 468-469, Diplock LJ and Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 540, Lord Diplock: 172-173. At 177 his Honour reasoned as follows:
In my view, the mere fact that the plaintiff and the defendants were not parties to a lis before the Commission does not, per se, mean that they were not parties to a lis before the Court of First Instance and Court of Justice. Nevertheless, in relation to those proceedings, on this point also I think [counsel for the defendants] is correct. The fact that an order for costs is made in favour of a person does not mean that, in accordance with English terminology, he is a party to the proceedings. Even under our procedure it is now possible to make an order for costs against a non-party… There is no reason to assume that the award of costs by the court of first instance in the Court of Justice was dependent on the complainant being a party to the appeal, in the English sense. Furthermore, notwithstanding the plaintiff's close involvement throughout the appeal procedure, it could have stood to one side of the matter would have progressed before the appeal courts in much the same way.
101 That last observation is also descriptive of what happened in this case in the ACCC Appeal. However, I treat this decision with considerable caution because there is no discussion as to when and in what circumstances issue estoppel may operate against an intervener.
102 Returning to paragraph [9.11] of Spencer Bower and Handley, the second footnote is to Marlborough Gold without elaboration. The third, is to Minott, which as I have noted concerns the more expansive view taken in some Canadian jurisdictions as to who is a privy of a party. In Australia, privies are confined to blood, estate or interest: Ramsay v Pigram (1968) 118 CLR 271 at 279, Barwick CJ; Tomlinson at [90]-[98], Nettle J.
103 The fourth footnote, which concerns the practice in probate proceedings, begins with Wytchery v Andrews (1871) LR 2 P&D 327 where Lord Penzance at 328 stated the practice in the Probate Court:
[B]y which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the prerogative Court held, that if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to re-open the case.
104 Of course, in the probate jurisdiction a grant in common form is revocable for cause upon application by a person whose interests are adversely affected, whereas a grant in solemn form is irrevocable, subject to limited exceptions, such as fraud or discovery of a later will. Probate litigation has an inquisitorial purpose being the due and proper administration of an estate and is not simply inter partes litigation where the principles of res judicata and issue estoppel have unqualified application: Hookway v Hookway [2016] TASSC 28 at [238]-[241], Estcourt J drawing on the encyclopaedic analysis of Lindsay J in the Estate of Kouvakis; Lucas v Konakas [2014] NSWSC 786.
105 The fifth footnote concerns land disputes where one must be careful to understand that in proceedings in rem distinctly different principles apply. A determination as to the status of a person or thing generally binds the world: P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437 at 442-443, Hope JA, in which case a determination by the Land and Environment Court to restrain breach of a development consent operated in rem as to the validity of conditions attached to it.
106 The sixth footnote begins with a reference to House of Spring Gardens Ltd v Waite [1991] 1 QB 241 at 243. The plaintiffs obtained judgment in the Republic of Ireland against three defendants for a substantial sum. There were unsuccessful appeals. The judgment sum was not paid. Separately, two of the defendants commenced a new proceeding in the Republic of Ireland and contended that the original judgment had been entered in favour of the plaintiffs in consequence of fraudulent conduct. That claim, the subject of a further contested trial, was dismissed. The judgment remained unpaid. Another proceeding was commenced by the plaintiffs against the three defendants in the United Kingdom to enforce the original judgment obtained in the Republic of Ireland. The primary judge held that each of the defendants were estopped from alleging that the judgment in the Republic of Ireland was obtained in consequence of fraud. Each unsuccessfully appealed to the Court of Appeal. The point of present relevance is whether the defendant who was not a party to the second proceeding (McLeod) in the Republic of Ireland to set aside the original judgment for fraud, was nonetheless estopped. The Court of Appeal concluded that he was by analogy with the practice in probate, of which Stuart-Smith LJ said at 253: "the rule may have originated in the special position in probate that I cannot see that justice and common sense require it to be so confined". What is notable for present purposes is why the rule was applied as explained at 253 - 254:
Mr McLeod was well aware of those proceedings. He could have applied to be joined in them, and no one could have opposed his application. He chose not to do so and he has vouchsafed no explanation as to why he did not. Mr Swift [counsel for McLeod] says he was not obliged to do so; he was not obliged to go to a foreign jurisdiction; he could still wait till he was sued here. He speaks as if Mr McLeod was required to go half-way round the world to some primitive system of justice. That is not so. He had to go to Dublin, whose courts, as the judge said, a perfectly competent to deal with this matter. Moreover, it was a process that was good enough for [the other defendants]. Instead, he was content to sit back and leave others to fight his battle, at no expense to himself. In my judgment that is sufficient to make him privy to the estoppel; it is just to hold that he is bound by the decision of Egan J [the judge of the Republic of Ireland who dismissed the fraud proceeding].
107 Two presently important points that should be made about this case. One, is that it was decided by application of the privity of interest as between McLeod and the other two defendants. See the reasons of Stuart-Smith LJ at 252-253. That may be so where the claim against the defendants in the proceeding in the Republic of Ireland was for having acted as joint tortfeasors in breach of a duty of confidence and where judgment was entered against them jointly and severally: 253. That is not the present case.
108 The other is that the reasoning, at least in part at 252, rests on what Megarry VC had said in Gleeson v J Wippell & Co Ltd [1977] 1WLR 510 at 515:
"[B]ut 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 hold that the decision to which one was party should be binding in proceedings to which the other is a party. It is in that sense that I would regard the phrase "privity of interest".
109 As explained by Nettle J in Tomlinson at [97] in Australia: "that formulation has been judicially criticised for its evident circularity… and, in any event, it is subject to the limitations of any category of indeterminate reference." To the same effect see the plurality in Tomlinson at [17].
110 Drawing the threads of this excursion together, I proceed on the basis that the issue estoppel principle extends to an intervener in an appeal proceeding who is either by rule or order a party or where the extent and degree of involvement amounts to active participation. Stating the principle in that way does not draw a bright line which is capable of distinguishing cases which do not engage the principle from those which do. What other matters, then, are relevantly considered?
111 Earlier in these reasons, I noted the plurality's reference in Tomlinson at [21] that res judicata estoppels are informed by finality and fairness. Lord Diplock in Thoday v Thoday [1964] P 181 at 198 referred to the rule of public policy expressed in Latin: Nemo debet bis vexari pro una et eadem causa (a person ought not be twice vexed for one and the same cause). In Burrell v The Queen (2008) 238 CLR 218 at [15] the plurality (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ) observed:
Secondly, it is important to recognise that underpinning consideration of the issues presented in this matter are fundamental principles about finality of litigation. As was said in D'Orta-Ekenaike v Victoria Legal Aid: "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances." That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system...
Footnotes omitted.
112 As stated in Spencer Bower and Handley at [1.11] there is tension between "achieving finality in litigation on principled and predictable grounds while allowing some flexibility in special cases. The tension between these competing policies continues to be worked out." One case then referred to is Arnold v National Westminster Bank Plc [1991] 2 AC 93, where Lord Keith at 107-109 reasoned that there may be special circumstances which operate as an exception to the principle. I accept the submission of NSW Ports that no Australia court has recognised the exception, and its existence is doubtful: Charafeddine v Morgan [2014] NSWCA 74 at [22]-[27].
113 Mayfield's participation in the ACCC Appeal commenced with the application of 25 October 2021 for leave to intervene. The supporting affidavit of Ms Banton identified the obvious interest of Mayfield in the outcome of the ACCC Appeal. Her statement, that resolution of identified issues of fact and law will have a "conclusive impact" on the Mayfield proceeding, is no more than an expression of her subjective belief. It is material in support of a grant of leave but no more. It neither engages the issue estoppel nor insulates Mayfield from it. The same observation applies to her various statements made for the purpose of satisfying the Full Court as to the required matters; useful and different contribution and no unreasonable interference with the conduct of the appeal and to the submissions of counsel for Mayfield as put to Besanko J on 28 October 2021.
114 The orders made by Besanko J on 5 November 2022 provided for the filing of the written submissions by Mayfield that it would propose to make on the ACCC Appeal should leave be granted. Mayfield filed those submissions on 9 December 2021. Ultimately, they marked out the territory and defined the degree of participation of Mayfield as determined by the orders of the Full Court made on 16 February 2022. The anterior decisions of Mayfield to seek access to the opening and closing submissions of the parties in the trial before Jagot J (which was granted) and upon review of those submissions to determine that its position on the appeal was that it did not seek to be heard orally (in that its arguments were fully ventilated in writing) whilst tactical and considered can hardly be described as active participation as an intervener. Those steps were taken for the purpose of limiting the participation of Mayfield.
115 Turning then to the manner of participation, the written submissions comprise 65 paragraphs and are divided as follows:
(i) [1]-[5] comprise the introduction and uncontroversial background matters;
(ii) [6] - [8] summarise the relevant principles that inform the exercise of the discretion at r 36.32 of the Rules;
(iii) [9] states the substantial interest of Mayfield being the correspondence between the principal matters alleged in its proceeding and the ACCC Proceeding;
(iv) [10] - [11] in summary states why the submissions proposed by Mayfield differ from those in the ACCC Appeal being: (1) there is no valid doctrine of derivative Crown immunity; (2) the State is deemed to carry on whatever business it's state-owned corporation carries on; (3) the compensation provisions did have a relevant purpose of substantially lessening competition; and (4) s 4L of the CCA does not permit but requires severance which operates prospectively and not ab initio;
(v) [12] - [15] summarise Mayfield's contention that there is no doctrine of Crown immunity or derivative Crown immunity, each of which is "outdated and apt to mislead". Rather, the question is exclusively a matter of statutory interpretation which is answered by ss 2A and 2B of the CCA which determine when the provisions apply to the Crown;
(vi) [16] - [18] address the reasoning of Jagot J and assert error in not reflecting an interpretive choice but rather of imposing an extra-statutory gloss on the purpose of the CCA;
(vii) [19] - [23] contain submissions that Jagot J erred by departing from the statutory text at ss 45(2) and 75B of the CCA;
(viii) [24] - [28] contended that s 51 of the CCA covers the field as to when a person may be exempted from liability for anything done in a State that is specified in and specifically authorised by State legislation;
(ix) [29] - [30] summarise Mayfield's preferable construction of the statutory scheme;
(x) [31] addresses why the submissions of Mayfield differ from those of the ACCC;
(xi) [32] - [36] frame in summary submissions that the State was conducting a business;
(xii) [37] - [40] address the submission that the State was engaged in regular and systematic conduct in the operation of each of the ports in issue and in the leasing arrangements entered into for those ports;
(xiii) [41] is a submission that the making of a State policy does not step the State outside of the conduct of a business;
(xiv) [42] - [46] express submissions that the compensation provisions of the Port Commitment Deeds, contrary to the conclusion of Jagot J, do not in fact support the State policy for the development of the ports in issue;
(xv) [47] explains why the submissions at [32] - [46] differ from those of the ACCC;
(xvi) [48] - [59] address the purpose of lessening competition grounds in the ACCC Appeal and [60] explain why those submissions differ from those of the ACCC;
(xvii) [61] - [63] submit that Jagot J erred in her interpretation of s 4L of the CCA by overlooking the significance of the fact that it requires rather than allows severance of an offending provision; and
(xviii) [64] - [65] address why intervention by Mayfield would likely add approximately 1.5 hours to the hearing of the appeal and will not interfere with the ability of the parties to conduct the appeal as they see fit.
116 Allsop CJ addressed the submissions of Mayfield at FC [416] - [421] as follows:
Leave was given on 16 February 2022, for Mayfield Development Corporation Pty Ltd (MDC), previously known as NSC to intervene by written submissions only, subject to any question of costs. Those submissions require little additional consideration.
MDC's submissions raised hypotheses said to come from the possible operation of ss 45(2) and 75B of the Act. They were, as submitted by NSW Ports, vague, unclear and unhelpful hypothetical scenarios that failed to direct themselves to the primary judge's expression and application of principle.
MDC submitted that the primary judge misconstrued s 2B of the Act and the operation of so-called derivative Crown immunity. Essentially, it submitted that s 2B(1) had no operation with respect to so-called derivative Crown immunity because of the place and operation of s 51 which was said to cover the field of operation of the subject of the application of the Act beyond the application of s 2B to the State alone or directly when not carrying on a business. I reject this construction of the Act and ss 2B, 45 and 51. Her Honour correctly applied Baxter and earlier cases and identified the relevant right which was or would be divested were s 45 to apply to NSW Ports.
MDC's submissions as to s 51 should be rejected for the reasons given for rejecting the argument of the ACCC and PON that that section of the Act manifests a contrary intention to the operation of the proposition drawn from Kitto J in Wynyard Investments and applied in Bass, NT Power and Baxter. Section 51 is predicated on contravention, not non-contravention of the Act.
The primary judge did not, as MDC submitted, rely on some semantic distinction between purpose and motive. Her Honour addressed the relevant factual question of subjective purpose.
There was an assertion by MDC that NSW Ports had a purpose to restrict container trade at Newcastle in order to make its bid. No one was cross-examined to that effect. It was not part of the case run; and not for an intervener to raise on appeal.
117 What is clear from this analysis is that Mayfield's participation in the appeal was limited and confined. It did not frame the appeal grounds and therefore the issues in the appeal. It did not control, direct or influence the manner in which the ACCC prosecuted the appeal. It could not be heard on matters of fact at issue in the appeal. Although Dr Higgins contended that Mayfield could "conceivably" have brought an application to adduce evidence on the appeal, the form of application and the power to entertain it were not identified. In fairness to that submission, an order granting more expansive participation rights may have been made when leave to intervene was granted (as contemplated by notes (2) and (3) of r 36.32 of the Rules), but that possibility was foreclosed when Mayfield chose not to engage more actively and by the form of order made by the Full Court. It is entirely speculative to determine the issue estoppel question by reference to what might have been done: the issue is what was done.
118 Mayfield could not determine or influence the decision by the ACCC not to seek special leave to appeal from the High Court, and there was no realistic possibility that it could have itself embarked on that course with success.
119 It is trite to recall that the ACCC Proceeding was one brought by a regulator in the public interest and for the purpose of enforcing the provisions of the CCA in respect of the impugned conduct. In that public capacity, the ACCC sought declaratory relief that the conduct was unlawful, injunctions to restrain the conduct and the imposition of pecuniary penalties (the latter for the purpose of achieving deterrence, specific and general). In contrast, Mayfield's proceeding is brought for the purpose of vindicating private rights, being the effect of the impugned conduct on it, and for compensation for the damage it claims to have suffered. There is no public aspect in the Mayfield proceeding, beyond any ultimate determination that conduct was engaged in contrary to a statutory norm.
120 Understood in that way there is a clear, though incomplete, analogy with Tomlinson, albeit a case about privity of interest. The fact that the injured worker complained to the Fair Work Ombudsman that his entitlements had not been paid, gave evidence in the regulatory proceeding commenced by the Ombudsman and received a personal benefit from the outcome of that proceeding by vindication of his rights, did not give rise to an issue estoppel in his subsequent claim for damages for personal injury as there was not a "sufficient connection in interest" between the worker and the Ombudsman: [1].
121 The inability of the worker to exercise control over the regulatory proceeding is central to the conclusion of the Court in Tomlinson as expressed at [35]:
[T]he interest of a privy must in each case be a legal interest" and "absent a legal interest, such interest as [a person] may have had over the conduct of the earlier proceeding is irrelevant even if that influence amounted to control.
122 Those expressions of principle by the plurality were made in the context of privity of interest, but they reflect that finality and fairness are fundamental policy considerations of the res judicata doctrines ([21]) which were addressed more expansively at [36]-[39] in the analysis of cases where a party to a proceeding represents the legal interests of another, such as in industrial cases where the inability of members to appear in or control the conduct of a proceeding was dispositive: Young v Public Service Board [1982] 2 NSWLR 456.
123 Having referenced Young at [36], the plurality in Tomlinson continued at [37]-[38]:
The first strand of the reasoning in Young illustrates that a person does not become bound by an estoppel by reason of a party having represented legal interests of that person in an earlier proceeding merely as a consequence of that party having lawfully asserted a claim which, if accepted, would have resulted in a determination enhancing or enforcing a legal entitlement of the person. In the absence of the person having authorised the assertion of the claim, the representation must at least have been of such nature as to have protected the person from being unjustifiably subjected to an unwanted estoppel.
Why that should be so is not difficult to explain. It is a principle at the core of our legal system that a party claiming or denying the existence of a legal right or obligation should have an opportunity to present evidence and arguments to establish the facts and law on which the claim or denial is founded. There are countervailing considerations, some of which operate to create exceptions to that principle. Finality and fairness, including maintaining the certainty of past adjudicated outcomes and ensuring the predictability of future adjudicated outcomes, are amongst those countervailing considerations, and the estoppels informed by those considerations are amongst the exceptions to the principle. The operation of an estoppel, it must be remembered, is to preclude the assertion in a subsequent proceeding of what is claimed to be the truth.
124 The plurality next emphasised the importance of active participation at [39]:
The justice of binding to an estoppel a person who was a party to an earlier proceeding is readily apparent: the person has already had an opportunity to present evidence and arguments. The justice of binding to an estoppel a person whose legal interests stood to benefit from the making or defending of a claim by someone else in an earlier proceeding will often also be apparent. With the benefit of the claim or defence also comes the detriment of the estoppel. That, at least, is the underlying theory. But it is a theory which has limitations. It would be quite unjust for such a person to be precluded from asserting what the person claims to be the truth if the person did not have an opportunity to exercise control over the presentation of evidence and the making of arguments in the earlier proceeding and if the potential detriment to the person from creating such an estoppel was not fairly taken into account in the decision to make or defend the claim in the earlier proceeding or in the conduct of the earlier proceeding.
125 In my view this is the coherent thread which runs through each of the res judicata doctrines, and which is not confined to privity of interest. The justice of binding a person by issue estoppel is active participation in the conduct of a proceeding. Where a person is a party or is deemed to have that status, such participation is plainly identifiable. That is not so for an intervener who is not in terms a party nor is granted rights and privileges, including specification of matters that may be raised, when leave is granted to intervene. My view accords with the analysis of each of the cases referred to in Spencer Bower and Handley at [9.11] and is not inconsistent with the reference to the 1968 edition of Spencer Bower by the High Court in Marlborough Gold at 505, once one understands that the Court was speaking in the context of a statutory right of intervention which, if exercised, deemed the intervener to be a party.
126 Mayfield did not enjoy a right of active participation in the ACCC Appeal for the reasons I have given. In summary, it lacked control over the framing of the appeal grounds, was confined to the issues identified in the amended appeal grounds, was not permitted to enlarge the scope of the appeal and the extent of participation was limited to consideration of its written submissions which, in the result, Allsop CJ, did not find necessary to examine at length. The submissions made no difference once the arguments of the ACCC were rejected.
127 It is not to the point that Mayfield's solicitor, Ms Banton, expressed various views in her affidavit made in support of the intervention application that the resolution of certain issues of fact or law in the appeal will have a conclusive impact on the Mayfield proceeding. That statement is reflective of no more than the binding precedential effect of the Full Court's determination upon a trial judge in the Mayfield proceeding. For the same reason it matters not that Mr Garland advised the parties and the Court in February 2022 that Mayfield was content to limit its participation in the appeal to the written submission. Whilst it is true that limiting the application for leave to intervene in that way was the forensic decision of Mayfield alone, and that it could have sought leave to intervene on a broader basis, the fact is that intervention was limited. Mayfield did not seek to broaden the issues or to otherwise exert control or influence over the conduct of the appeal.
128 There are other relevant considerations. The twice vexed for the same cause policy consideration is not material in this matter. There were two sets of proceedings where the respondents faced the same contentions. If Mayfield had not sought leave to intervene, no question of issue estoppel could have arisen. It was not the intervention by Mayfield that exposed the respondents to that risk. However, the respondents were and remain able to rely on the binding nature of the legal conclusions reached by the Full Court at a trial of the Mayfield proceeding as an answer to the application of the CCA to the impugned conduct, if established.
129 As noted above, Brennan CJ in Levy, in expressing the justification for a grant of leave to intervene, spoke of a demonstrated substantial effect on a person's legal interests as a necessary precondition, but even where that is shown, the grant may be limited, which reflects what occurred in this case. Mayfield was afforded a limited right of participation for the purpose of persuading the Full Court to reach conclusions favourable to its case. It failed to achieve its objectives. The legal conclusions of the Full Court must be followed by a trial judge in this proceeding as a matter of stare decisis. The hurdle that now confronts Mayfield is to convince another Full Court that the binding decision on the application of the CCA to the impugned conduct is plainly wrong or, failing that, to succeed upon an application for special leave and then if granted an appeal to the High Court. It is by no means clear on the arguments of NSW Ports why the limited participation in the ACCC Appeal operates to erect the further barrier of issue estoppel to conclusively prevent Mayfield from appealing. It was not the participation of Mayfield in the appeal that produced the binding precedential determinations of the Full Court on the legal issues before it. But on the arguments of NSW Ports, Mayfield is forever estopped from contending that the Full Court wrongly determined the primary legal issue and that the correct answer was that given by Beach J. The justification given by NSW Ports for this surprising outcome rests solely on the fact that Mayfield participated in the Full Court argument in a limited manner. What that overlooks is that Mayfield did not frame the arguments and did not exercise control over the conduct of the appeal and the decision made by the ACCC not to seek special leave to appeal on what is an important question of principle that has implications well beyond this case.
130 The significance of the last point is relevant to finality which operates to inform the application of the issue estoppel doctrine. Mr Walker argues, and I have accepted, that there is no prospect that Mayfield could have successfully applied for a grant of special leave to appeal to the High Court for the reason that Mayfield did not have standing to challenge the order dismissing the appeal on the factual questions of purpose and likely effect and substantially lessening competition as those matters were not in dispute between it and the respondents in the ACCC Proceeding to which it was neither an intervener or a party.
131 For these reasons, I conclude that the limited nature and degree of participation by Mayfield in the ACCC Appeal was not such as to give rise to an issue estoppel.