1 This is an appeal from a judgment given in the Commercial and Equity Division refusing applications for an injunction to restrain the respondent ('Riverwild') from enforcing a costs order made in favour of Riverwild in the Victorian Civil and Administrative Tribunal ('VCAT') in a Domestic Building Act[1] proceeding ('the VCAT building proceeding') and a declaration that the costs order had been satisfied in whole or part as a result of the settlement sums paid by other respondents to the VCAT building proceeding.

2 Riverwild and others brought the VCAT building proceeding in VCAT against the appellant ('Mr Morris') as architect, and others in various capacities, for damages of $8.65 million alleged to have been suffered as a result of defects in the design and construction of a development known as 'Woodsmoke' at Falls Creek.

3 When the VCAT building proceeding was part heard, the parties settled all claims as follows:

a) On 30 July 2004, Riverwild accepted Mr Morris's offer of settlement, made pursuant to s 112 of the VCAT Act,[2] to pay $1,400,000 to Riverwild together with Riverwild's party and party costs in relation to their claims against Mr Morris.

b) On 3 August 2004, Riverwild entered into terms of settlement with the certifying engineer (Mr Holland) and his company (GHA Engineers Pty Ltd), pursuant to which Mr Holland and his company agreed to pay the sum of $1,500,000 to Riverwild 'in full and final settlement of all claims ... including any and all claims for costs'.

c) On 4 August 2004, Riverwild entered into terms of settlement with the building surveyor (Mr Lorenzini), pursuant to which Mr Lorenzini agreed to pay $1,850,000 to Riverwild 'inclusive of interest and costs'.

d) On 4 August 2004, Riverwild entered into terms of settlement with the structural engineer (Mr Huggard) and his company (Finmay Pty Ltd), pursuant to which Mr Huggard and Finmay agreed to pay $150,000 to Riverwild 'inclusive of interest and costs', such liability being capable of discharge by paying $79,188 consistent with the terms of settlement.

e) In August 2004, Riverwild agreed with AMP General Insurance Ltd that AMP would pay $175,000 to Riverwild.

4 Thereafter, Riverwild recovered the settlement sums referred to in paragraphs (b) to (e).

5 On 13 September 2004, Senior Member Walker of VCAT made orders in the VCAT building proceeding inter alia that Mr Morris pay the party-party costs of Riverwild's claims against Mr Morris, in an amount to be assessed by a Registrar by reference to the Supreme Court Scale of Costs and paid within 30 days of assessment.[3] Pursuant to those orders, Riverwild filed a Cross-Applicants' undated Bill of Costs and the Applicants' Bill of Costs dated 1 December 2005 ('the bills of costs') for the purposes of the assessment.

6 On 20 October 2006, the Registrar appointed to assess Riverwild's costs referred the following question of law to Senior Member Walker, pursuant to s 107 of the VCAT Act:

On the assessment of [Riverwild's] bills against [Mr Morris] pursuant to the order of Senior Member Walker made 13 September 2004 as amended on 20 September 2004, should items of costs be reduced by any (and if so to what) amount or proportion of the amount otherwise properly allowable?

7 By application dated 7 December 2006, Mr Morris sought injunctions from VCAT to restrain Riverwild from recovering from Mr Morris, in respect of costs incurred by Riverwild in pursuing its claim against Mr Morris and one or more of the other respondents to the VCAT building proceeding ('common costs'), more than Mr Morris' pro rata share of those common costs. The application was supported by an affidavit of Suzanne Louise Kupsch sworn on 7 December 2006.

8 By an amended application dated 8 December 2006, Mr Morris also sought a declaration from VCAT that Riverwild was not entitled to recover from him any more in the way of common costs than Mr Morris' pro rata share of those common costs.[4]

9 On 19 December 2006, Senior Member Walker heard the question of law referred by the Registrar and, at the same time, heard Mr Morris' application for declaration and injunction.

10 After reserving his decision over the summer vacation, on 17 February 2007, Senior Member Walker dismissed Mr Morris's application for declaration and injunction and answered 'no' to the referred question of law ('the VCAT decision'). Mr Morris did not seek leave to appeal from the VCAT decision.

11 The assessment of Riverwild's bills of costs began before Registrar Wilson on 13 March 2008 and continued on 17, 18, 19 and 20 March 2008, and 2, 3, 4 and 8 April 2008, until it was resolved by consent orders made on 8 April 2008 ('the Costs Order'). The costs order required Mr Morris to pay Riverwild the sum of $1.8 million. All parties to this appeal accept that the Bills of Costs and the Costs Order include a component of costs that were common to all of the respondents in the VCAT building proceedings.

12 On 16 May 2008, Riverwild Management registered the Costs Order in the Supreme Court.

13 On 30 June 2008, Mr Morris instituted this proceeding in the Commercial and Equity Division of the Supreme Court seeking a declaration that the Costs Order had been satisfied in whole or in part by reason that the settlement sums paid by other respondents to the VCAT building proceeding were paid in part in respect of common costs, and an injunction to restrain Riverwild from executing upon or seeking to recover on the Costs Order in so far as to do so would constitute double recovery of common costs recovered in the form of settlement sums paid by other respondents to the VCAT building proceeding. The terms of the declaration and injunction then sought varied from the terms of the declaration and injunction sought before Senior Member Walker.

14 The trial began on 16 September 2009 and lasted three days. Mr Morris's solicitors (Messrs Bennett and Horan), Riverwild's solicitor (Mr Giannakopoulos) and an expert costs consultant (Mr White) all gave evidence. Mr Morris alleged that, inasmuch as the settlement sums paid by other respondents to the VCAT building proceeding were paid in respect of both damages and costs, Riverwild had already recovered some of the amount of the Costs Order (of $1.8 million), and that the principle against double recovery prevented Riverwild from executing for, or seeking to recover, more than the common costs incurred after allowing for those recoveries.

15 Riverwild contended that the principle against double recovery was not engaged and that, in any event, Mr Morris was estopped from asserting his claim of double recovery: either by the Costs Order, as a consent order giving effect to an agreement negotiated between the parties; or by the VCAT decision to refuse the declaratory and injunctive relief which Mr Morris had sought.

16 The trial judge was persuaded that the principle against double recovery was engaged and his Honour considered that, other things being equal, Riverwild 'should not be permitted to recover all of the costs sought against Mr Morris to the extent that those costs were referable to, and were part of, the costs comprised in the settlements with the other respondents' to the VCAT building proceeding.[5] But his Honour held that the issue raised before him had been determined by the VCAT decision and that Mr Morris was thereby estopped. But for that, his Honour said, he would have ruled that Mr Morris was liable to pay only 30 per cent of the $1.8 million, which is to say, $540,000.[6]

17 By his notice of appeal dated 16 October 2009, Mr Morris contends that the trial judge erred in holding that he was estopped by the VCAT decision.

18 Riverwild maintained that Mr Morris was estopped by the consent Costs Order and the dismissal by VCAT of the applications for a declaration of an injunction. Further, by a notice of contention dated 1 February 2010, it contends in the alternative that, if Mr Morris is not estopped by the VCAT decision or the consent order, the trial judge erred in holding that some proportion of the settlement amounts received from the other respondents to the VCAT building proceeding were referable to, and received in part as, the costs which had been incurred in pursuing the VCAT building proceeding against Mr Morris.

19 Counsel for Mr Morris put as his principal argument in support of the appeal that, although Mr Morris instituted the claim for declaratory and injunctive relief in the VCAT building proceeding, he had done so only because he feared that he might otherwise be met in subsequent proceedings with a plea of Anshun estoppel.[7] Then, at the hearing, it had emerged that Riverwild did not consider that VCAT had jurisdiction to grant the declaratory or injunctive relief which was sought; as a result of which it appeared that there was no risk of a subsequent plea of Anshun estoppel. With that, counsel had abandoned the claim in the course of running; and, therefore, it had later come as a real surprise when Senior Member Walker included a determination of the claim for declaratory and injunctive relief in the VCAT decision. It was almost as if Mr Walker had forgotten that the claim was abandoned.

20 Counsel also sought leave to advance as a further or alternative ground of appeal that, notwithstanding Mr Morris sought declaratory and injunctive relief in the VCAT building proceeding, VCAT lacked jurisdiction to grant it and, consequently, lacked jurisdiction to determine that Mr Morris was not entitled to it (otherwise than on the basis of a lack of jurisdiction). It followed, counsel said that, to the extent that VCAT purported to determine that Mr Morris was not entitled to the declaratory and injunctive relief he sought, the decision was a nullity.

21 The application to add the new ground of appeal was opposed, on the basis that there had been no appeal from the decision of VCAT nor had any want of jurisdiction by VCAT been raised in the proceedings before the trial judge. It was submitted that the failure to take the point during the Supreme Court proceeding may have affected the way in which the trial was conducted.[8] However, when pressed counsel was not able to articulate any persuasive basis on which the respondent may have been prejudiced in its conduct of the Supreme Court proceeding. We would in any event be disposed to allow the new ground to be added even though leave to rely upon a point not taken below should seldom be granted on appeal.[9] Where it involves a point of jurisdiction, and it appears from the face of the proceedings that the court or tribunal from which the appeal is brought lacked jurisdiction, it is appropriate to grant leave so that the position may be regularised.[10]

22 Pressed on the point, counsel for Riverwild ultimately conceded that it was difficult to say that VCAT possessed jurisdiction to grant the injunctive relief which Mr Morris sought or, therefore, to determine that Mr Morris was not entitled to it. But, counsel submitted, there should be no doubt that VCAT had jurisdiction to grant the declaratory relief which was claimed and, therefore, to determine that Mr Morris was not entitled to that. It followed, counsel said, that VCAT's determination that Mr Morris was not entitled to a declaration that the Costs Order had been satisfied in whole or in part was a binding decision which estopped Mr Morris from contending to the contrary.

23 In our view, VCAT did not have jurisdiction to enjoin Riverwild from enforcing the Costs Order. As was explained in HWT v Victoria,[11] VCAT's jurisdiction to grant an injunction is limited under s 123 of the VCAT Act to matters in which VCAT has original jurisdiction. The section does not enlarge VCAT's jurisdiction but operates in aid of whatever jurisdiction VCAT otherwise has. In this case, although VCAT had original jurisdiction to make the Costs Order, and to assess the costs payable under it, it had no jurisdiction to grant an injunction which by its terms would aid in or restrain enforcement of the Costs order once made. Apart from questions of contempt, which are dealt with in s 137 of the VCAT Act, s 121 of the VCAT Act provides for the enforcement of a monetary order of VCAT by registration in the appropriate court - in this case the Supreme Court, whereupon the order becomes in effect an order of the Supreme Court. VCAT has no jurisdiction over the enforcement or restraint of enforcement of an order of the Supreme Court, even where the order is concerned with a matter which was within the jurisdiction of VCAT. The enforcement of an order of the Supreme Court, and the imposition of any restraints upon its enforcement, are matters for the Supreme Court.[12] That is to say, the claim for an injunction, properly characterized, was unrelated to any proceeding then before the VCAT. No foundation existed for calling in aid the power under s 123(1) of the VCAT Act.

24 For the avoidance of doubt, we add that it makes no difference that the injunctive relief was sought proleptically ahead of VCAT's determination of the amount of costs payable under the Costs Order. VCAT had jurisdiction to determine the amount of costs payable and, if need be, to grant injunction in aid of its dealing with that dispute. But, once the amount of costs was determined, the dispute in VCAT came to an end. Any later claim by Riverwild to enforce the Costs Order would not be part of that dispute and, logically, it could be no more part of that dispute by reason of being considered in advance of the conclusion of the dispute than if the dispute had already been concluded.

25 We accept, however, that VCAT had jurisdiction to grant the declaratory relief which was sought, and thus to determine that Mr Morris was not entitled to relief of that kind. Section 124 of the VCAT Act empowers VCAT to make a declaration concerning any matter in a proceeding instead of or in addition to any other order it could make in the proceeding. In this case, what was in issue in the VCAT building proceeding included the question of law of whether any items of costs should be reduced to allow for costs recovered by way of settlement sums from other respondents to the VCAT building proceeding. It would have been within VCAT's jurisdiction to make a declaration along those lines, if not in exactly those terms, instead of or in addition to answering the Registrar's question in some other fashion.

26 That leaves the question of whether the effect of Mr Morris withdrawing or, more accurately, 'not pressing' his claim for declaratory relief before VCAT was to deprive VCAT of the jurisdiction to determine that he was not entitled to the declaration. Counsel for Mr Morris submitted that the withdrawal or not pressing of the issue deprived VCAT of jurisdiction to determine it, and hence that VCAT's purported determination of it was a nullity.

27 Counsel for Riverwild contended to the contrary that, although VCAT may have been in error in determining the issue (because it had been withdrawn or was not pressed), it was an error made within jurisdiction, or in other words a non-jurisdictional error of law and thus, in the absence of any appeal against the VCAT determination, or an application for certiorari or judicial review, it remained binding on Mr Morris.

28 In our view, VCAT exceeded its jurisdiction by deciding the claim for declaration. Although Mr Morris originally made a claim for declaration, it is apparent from the transcript of the VCAT building proceeding that counsel for Mr Morris told Mr Walker that 'we don't seek that those orders be made today'; 'the question of the declaration, even if it was otherwise appropriate for it to proceed today, is not going to proceed today'; 'the question of the jurisdiction is a real question. We understand that's a question that will ultimately need to be determined'; '...we agree with my learned friend that in fact that argument is a matter that is going to be had, and today is not the day to have it. There's not sufficient time and we are not in a position to deal with the machinations as to whether or not the tribunal has got - whatever limits there might be - to make declarations that are relevant to this question'; 'I'm not proposing to deal with that today'.

29 The transcript to which we have referred demonstrates that while Mr Morris' claim for a declaration remained on foot, in the sense that it was something claimed in Mr Morris' amended application in the VCAT building proceeding, and it was something which counsel for Mr Morris wanted VCAT to deal with at an appropriate time, it was not intended to be dealt with on that day and counsel was not in a position to deal with it on that day. It was not disputed on appeal that this was also the attitude of counsel for Riverwild before the Tribunal. It appeared to be a course that was accepted by the Tribunal at that time as the senior member acknowledged that the question of jurisdiction was attended by doubt and did not say or imply that he was opposed to putting that aspect of the matter over to another day.

30 In those circumstances, even though the issue of declaratory relief was before VCAT in the sense that it had been claimed in the application, and in that sense may be said to have been within VCAT's jurisdiction, it was a breach of the audi alteram partem or hearing rule of natural justice,[13] and thus a denial of procedural fairness, for VCAT to proceed to decide the issue. It should not have done so without first informing counsel that it intended to do so and giving counsel a reasonable opportunity to present evidence and argument in support of the claim.[14] By doing so, it committed a jurisdictional error.

31 Counsel for Riverwild then submitted that Mr Morris had not appealed against that decision. In our view there are at least two reasons why the VCAT decision decision cannot support an estoppel notwithstanding that it was not the subject of appeal?

32 Forty years ago, under the reasoning in Anisminic[15] which then held sway, an error of the kind committed by VCAT by deciding the claim for declaration might

32 have been conceived of as a jurisdictional error which rendered the determination a nullity.[16]

33 Subsequently, in Craig v South Australia,[17] the High Court laid down that the reasoning in Anisminic is not applicable to inferior courts, as opposed to statutory tribunals. In some quarters, that was construed as implying that, while there was still a presumption that certain errors of law committed by tribunals were jurisdictional errors, there was no such presumption in the case of inferior courts.

34 Then, in Returned & Services League of Australia,[18] this court concluded that the distinction between inferior courts and statutory tribunals for this purpose was essentially of importance only if and insofar as the nature of the one or other shed light on deciding the intention of Parliament in committing the task at stake to the body in question; specifically, whether that task included not only the power to decide but also the power to decide wrongly without attracting prerogative relief.

35 Additionally, as Aronson[19] notes, there has been a drift in the last 40 years away from the old labels of 'void' and 'voidable'. Thus, for example, in Re Macks,[20] Hayne and Callinan JJ concluded in another context that it is not helpful to examine questions in terms of a distinction between void and voidable orders.

36 More recently, however, in Aala,[21] a majority of the High Court held that a denial of procedural fairness by a statutory tribunal (in causing an applicant mistakenly to believe that a state of affairs relating to the manner in which he might choose to conduct his case existed) resulted in the tribunal's decision being made in excess of jurisdiction and as such amenable to prohibition and certiorari.

37 Still more recently, in Bhardwaj,[22] Guadron and Gummow JJ, jointly, (and Hayne and Callinan JJ, individually,) held that there is no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding until they are set aside. As Gaudron and GummowJJ said:

A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.[23]

38 Importantly, Hayne J emphasised, there is no presumption that decisions of administrative tribunals are valid until they are set aside. Thus the validity of such decisions may be contested not only directly by proceedings for judicial review but also collaterally in other proceedings:

In general, judicial orders of superior courts of record are valid until they are set aside on appeal, even if they are made in excess of jurisdiction. By contrast, administrative acts and decisions are subject to challenge in proceedings where the validity of that act or decision is merely an incident in deciding other issues. If there is no challenge to the validity of an administrative act or decision, whether directly by proceedings for judicial review or collaterally in some other proceeding in which its validity is raised incidentally, the act or decision may be presumed to be valid. But again, that is a presumption which operates, chiefly, in circumstances where there is no challenge to the legal effect of what has been done. Where there is a challenge, the presumption may serve only to identify and emphasise the need for proof of some invalidating feature before a conclusion of invalidity may be reached. It is not a presumption which may be understood as affording all administrative acts and decisions validity and binding effect until they are set aside. For that reason, there is no useful analogy to be drawn with the decisions of the Court concerning the effect of judgments and orders of the Federal Court of Australia made in proceedings in which that Court had no constitutionally valid jurisdiction.

This is not to adopt what has sometimes been called a 'theory of absolute nullity'or to argue from an a priori classification of what has been done as being 'void', 'voidable' or a 'nullity'. It is to recognise that, if a court would have set the decision aside, what was done by the Tribunal is not to be given the same legal significance as would be attached to a decision that was not liable to be set aside. In particular, it is to recognise that if the decision would be set aside for jurisdictional error, the statutory power given to the Tribunal has not been exercised... [24]

39 In light of these decisions, we consider that the VCAT decision, in so far as it purported to determine Mr Morris' application for declaration and injunction, involved a jurisdictional error of a kind and of such putative consequences as to dictate that the decision should now be regarded, in law, as no decision at all.

Where point was not distinctly and directly in issue

40 Quite apart from the want of jurisdiction, as the parties had not presented the issues of the injunction and declaration to the tribunal for final determination, the decision could not give rise to an estoppel. The course adopted by both counsel during the hearing meant that the grant of declaratory or injunctive relief were no longer points distinctly and directly in issue.[25] A determination 'on the merits' was neither required or possible once the parties withdrew from making submissions on those issues. They did not need to be decided to resolve the matters that the parties were then seeking to have determined. No estoppel could therefore arise.

41 Contrary, therefore, to the conclusion reached by the judge, who did not have the benefit of the arguments advanced on appeal, we take the view that Mr Morris was not estopped by the VCAT decision from claiming the declaratory relief which he sought at first instance.

42 We turn to Riverwilds' contention that, assuming Mr Morris were not estopped from claiming the relief which he sought, the judge was wrong in holding that some proportion of the settlement amounts received from the other respondents to the VCAT building proceeding were referable to, and received in part as, the costs which had been incurred in pursuing the VCAT building proceeding against Mr Morris.

43 The judge based that part of his decision on what he described as the 'well established principle against double recovery' that 'the plaintiff cannot recover more than the total damage which he or she has sustained'[26] discussed by Oliver L.J in Townsend v Stone Toms and Partners[27] and more recently by Winneke P in Boncristiano v Lohmann.[28]

44 We consider that the complaint raised by Mr Morris potentially involved the 'indemnity rule'[29] rather than the principle of 'double recovery' because it was not a complaint that Riverwild was seeking to recover more than the damage to which it was entitled. The assertion was that Riverwild had already received a portion of its costs claimed in the bills of costs from other respondents and to that extent was not entitled to be indemnified for those costs by way of a further costs order. The place to claim that the indemnity rule has been displaced was before the registrar, on the assessment of the bills of cost.[30] Where it is established, the bill of costs is reduced in accordance with the extent of that displacement.

45 The senior member appears to have accepted the argument of senior counsel for Riverwild, repeated on this appeal, that the terms of the costs order constrained the manner in which the costs were to be assessed as they did not contemplate any enumeration of items of common costs or reduction in costs to allow for such items. The senior member concluded that the registrar, when assessing the bill of costs, could not go behind the costs order to determine whether the indemnity rule had been displaced or whether the rule of thumb discussed in Currababula Holdings Pty Ltd v State Bank of New South Wales[31] should be varied. Although it is unnecessary for us to finally determine the correctness of that decision, we doubt its validity. Ordinarily, normal taxation principles would permit those issues to be considered where, on proper material being adduced, it might be concluded that the indemnity principle or the rule of thumb was or should be displaced. Whether Mr Morris would now be precluded from seeking to challenge this aspect of the bill of costs in other proceedings, to demonstrate that Riverwild has received part of their common costs from other respondents to the VCAT proceedings, is something about which we express no opinion.

46 We were informed that the trial judge refused to allow Mr Morris to adduce certain evidence as to the circumstances surrounding the 'all in' settlements. His Honour, applying the principle against double recovery, reasoned that, because the terms of settlement between Riverwild and each of the other respondents to the VCAT building proceeding provided that the settlement amount was paid in respect of all claims and costs, it was clear that part of each of those settlement sums was paid on account of costs. As his Honour put it, the 'consideration establishes the matter in respect of which the moneys are received' and it would be wrong 'to read the contract as if the words 'including claims for costs' were not there'. Thus his Honour concluded that:

the claimants in VCAT ... settled against all of the respondents in VCAT on a basis by which some proportion of the proceeds of settlement were refe[r]able to, and received in part as, the costs which had been incurred in pursuing the VCAT building proceeding, including costs incurred against them in common with the claims pursued against Mr Morris. All things being equal, therefore, the defendants in the proceeding before me should not be permitted to recover all of the costs sought against Mr Morris to the extent those costs were

refe[r]able to, and were part of, the costs comprised in the settlements with the other respondents in the VCAT building proceeding.[32]

47 The judge added that he recognized the difficulties which lay in the way of determining what proportion of the $1.8 million Mr Morris was ordered to pay had already been recovered from the other VCAT building proceeding respondents under 'all in' terms of settlement. But, in his Honour's view, the difficulty could be overcome by assuming that, because the parties were agreed 'that the costs in issue were, in quantum, to be identified as $1.8m without dissection or further apportionment', the whole of the $1.8 million should be regarded as common costs, and then by apportioning each party's' liability for costs according to the size of that party's settlement payment. That resulted in apportioning 30 per cent to each of Mr Morris, Mr Holland and Mr Lorenzini and 10 per cent to Mr Huggard.

I would reduce by 70% the amount of common costs payable by Mr Morris on the basis that 30% of the common costs have been recovered by settlement from each of Mr Holland (Including his company) and Mr Lonezini, and 10% from the others.[33]

49 With respect, we think that the judge's reasoning breaks down at several levels.

50 First, although it is correct to say that the consideration expressed in the several terms of settlement established the matter in respect or which payments were made, and thus determined that the payment made by each respondent to the VCAT building proceeding was in satisfaction of that respondent's liability for damages and costs, non constat that each such respondent agreed to pay or paid a substantial amount by way of costs; still less agreed to pay or paid a proportion of his or its settlement sum equal to the proportion of the total of all settlement sums comprised of that respondent's settlement sum.

51 It is impossible to construe the terms of settlement as by necessary implication requiring that each settlement sum be prorated between damages and costs. Not only is it unnecessary to do so in order to give the terms of settlement business efficacy, but it would also be unreasonable to do so because it would deprive Riverwild of damages for part of its loss and pro tanto confer a benefit on Mr Morris.[34]

52 Secondly, the judge said that he approached the matter on the basis that, consistently with the common law precept against double recovery, it was appropriate to prorate the payments made by defendants between damages and costs 'in order to do justice between the parties and to ensure that there is not double recovery'. As we have already noted, the issue here was not double recovery of damages but whether Riverwild had already received a portion of its party party costs on common issues from other respondents. Moreover, with respect, there is no general principle of proration applicable in cases of this kind, and it is not a matter for the exercise of judicial discretion. As Steyn J pointed out in Banque Keyser:

The credit to be given by a plaintiff in favour of one tortfeasor in respect of recovery from another torfeasor is to be determined by applying the law to the facts; it cannot be a matter for the exercise of a judicial discretion.[35]

53 Counsel for Mr Morris contended that the reasoning of Winneke P in Boncristiano supported the trial judge's conclusion. We do not agree. The sum paid in that case by the solicitors was 'in settlement of the claim made'.[36] Hence the conclusion that the sum offered was in satisfaction of 'a truly alternative claim for the same damage' made against the respondent builders.[37] To avoid infringing the principle against double recovery, the plaintiffs were in principle required to bring into account the full settlement sum they had received.

54 Thirdly, there was no risk of double recovery. Riverwild's claim was for $8.65 million plus $1.8 million costs,[38] in effect a total of not less $10.45 million, and it has not been judicially determined or even suggested that Riverwild would not have been entitled to recover all of that amount if it had proceeded to judgment. A plaintiff is entitled to pursue cumulative remedies in order fully to recoup the damage suffered as a result of a joint or concurrent tort;[39] and, even after getting in all amounts agreed to be paid by the defendants under the various terms of settlement, including the full amount agreed to be paid by Mr Morris under his terms of settlement, Riverwild's total recovery would be only $6,875,000. If, the matter were approached in the fashion the judge decided, it would result in Riverwild recovering only $5,615,000 comprised, in effect, of the $1,800,000 costs which the judge prorated among defendants and damages (or perhaps damages and costs) of $3,815,000.

55 Certainly, Riverwild agreed to settle for less that the full amount of its claim and costs. But there is no reason to suppose that the amount for which it settled was full compensation for its loss. As Giles JA said in Baxter v Obacelo Pty Ltd:

Unless the settlement is in truth a capitulation, of its nature it will involve compromise, so that the amount is unlikely to be full compensation for the claimed loss and its relationship to the actual loss will be speculative. Further, the settlement may well be affected by matters not material to the assessment of the actual loss, such as the defendant's impecuniosity. Still in principle, only if it is found as a fact that the settlement amount was received as full compensation for the plaintiff's loss should the rule against double satisfaction operate to bar the plaintiff from proceeding against another tortfeasor or other tortfeasors.[40]

56 Fourthly, where several defendants are severally liable for parts of a plaintiff's claim, the general principle is that one such defendant is not entitled to credit in respect of payments made by other defendants unless and until the total of payments made by the other defendants exceeds the difference between the plaintiff's claim

56 and that part of the claim for which the defendant seeking credit is liable.[41] As the total amount received by Riverwild from all respondents to the building proceeding, including Mr Morris, did not exceed the amount of damages claimed by Riverwild, no question of double recovery could arise.

57 According to the various terms of settlement between Riverwild and the other respondents to the VCAT building proceeding, the amounts paid by those other respondents were paid and received on an undissected basis in part satisfaction of Riverwild's total loss or outgoing of not less than $10.45 million, comprised of the $8.65 million damages which Riverwild claimed to have suffered and the not less than $1.8 million costs which it is now known were incurred in seeking to recover those damages. As there is no acceptable basis on which to apportion each or any of those payments between damages and costs, the only appropriate way to treat each payment is as one made on account of an undissected liability for damages and costs.

58 Consequently, Mr Morris would not have been entitled to any credit in respect of payments made by other VCAT building proceeding respondents until and unless the total of payments made by those other respondents on account of damages and costs exceeded the difference between Riverwild's total loss or outgoing of $10.45 million less the $3.2 million on account of damages and costs which Mr Morris was otherwise bound to pay.

59 The total of all payments made by defendants other than Mr Morris was $3,675,000, leaving an amount outstanding of $6,775,000 on account of interest and costs and, since that is less than the difference of $7.25 million between the total loss or outgoing of $10.45 million incurred by Riverwild on account of damages and costs and the sums totalling $3.2 million which Mr Morris was bound to pay on account of damages and costs, there is no occasion for Mr Morris to claim credit in respect of any amount paid by the other respondents.

61 I have had the advantage of reading in draft the joint judgment prepared by Nettle and Redlich JJA. I agree, for the reasons there set out, that this appeal should be dismissed.

62 There is, however, one additional matter that I wish to address briefly. It concerns the doctrine of issue estoppel and, in particular, the application of that doctrine to decisions of the Victorian Civil and Administrative Tribunal ('VCAT').

63 VCAT is, of course, an independent statutory tribunal. However, it is not a court.[42] Insofar as it exercises 'original jurisdiction',[43] as it did in this case, it carries out a statutory function that in some ways resembles the exercise of judicial power. Insofar is it exercises 'review jurisdiction',[44] it is plainly engaged in a purely administrative task.

64 So far as I can tell, the question whether a decision made by VCAT, in either its original jurisdiction or its review jurisdiction, is capable of giving rise to any form of estoppel, and in particular issue estoppel, has not been definitively resolved.

65 I note that a similar question has arisen at the federal level in relation to decisions made by the Administrative Appeals Tribunal ('AAT'). In that regard, it has been observed that the effect of the doctrines of res judicata, or cause of action

estoppel as it is sometimes known, and issue estoppel in proceedings of the AAT 'remains unclear'.[45]

66 In Bogaards v McMahon,[46] Pincus J considered whether a decision of the AAT could create an estoppel. In that regard, his Honour said:

It would seem easy enough to conclude that, to the extent that the tribunal deals directly with a decision under review (for example, by substituting another), its functions are exhausted. It would be absurd to suppose that the legislature intended that the tribunal, having on Monday set aside a decision under review, should have jurisdiction on Tuesday (on precisely the same facts) to affirm it, perhaps acting by a different member.[47]

67 His Honour referred to the then current edition of Spencer Bower's The Doctrine of Res Judicata, in which it was suggested that the concept of a 'judicial tribunal' encompassed many tribunals, not being 'courts', set up under statute.[48] It was noted that it had been held that arbitrators' awards could create estoppels.

68 Pincus J also referred to the decision of the High Court in Administration of the Territory of Papua and New Guinea v Daera Guba.[49] In that case, Barwick CJ[50] considered that a decision by a body called the 'Land Board', which was not a court but, rather, an ad hoc body set up under an ordinance to determine the ownership of particular specified parcels of land, created an estoppel.[51] In the same way, Gibbs J[52] observed that a court martial's decision could create an estoppel, though not made in the exercise of judicial power.[53]

69 Daera Guba[54] concerned cause of action estoppel, and Pincus J noted that, in relation to issue estoppel, the position might be different. In that regard, his Honour noted that there was a line of English cases, culminating in the decision of the Privy Council in Caffoor v Commissioner of Income Tax, Colombo,[55] where it was held that the doctrine of issue estoppel did not apply to particular decisions of taxation and rating boards. Pincus J also noted that there were two decisions of the Full Court of the Federal Court that suggested that issue estoppel was not applicable to AAT proceedings.[56]

70 In the end, Pincus J concluded that it was inappropriate to determine, in the particular circumstances of the case before him, whether issue estoppel applied to decisions of the AAT. His Honour left that matter open.

71 In Comcare Australia v Grimes,[57] Wilcox J considered 'plainly correct' a concession by counsel that an AAT decision could not give rise to an issue estoppel.[58] His Honour referred to Daniele[59] and Sciacca,[60] and also to Midland Metals Overseas Ltd v Comptroller-General of Customs,[61] as authority for that proposition. Indeed, Wilcox J went further and expressed the view that, notwithstanding Daera Guba,[62] cause of action estoppel had no application to AAT proceedings. His Honour considered that there was a close correspondence between issue estoppel and cause of action estoppel, and that it would be curious if a different rule applied to each of them.[63]

72 In Re Hospital Benefit Fund of WA Inc and Department of Health, Housing and Community Service (No 1),[64] it was said that both forms of estoppel were applicable to AAT proceedings, and that this conclusion was 'settled'.[65] But in Re Cooper (WH) and Repatriation Commission,[66] this was said not to be so.

73 I note that Professor Pearce, in his text Administrative Appeals Tribunal,[67] concludes that while the matter still awaits final resolution, 'the weight of authority appears to lie towards estoppel not being applicable to AAT decisions'.[68] He cites, in particular, Midland Metals[69] and Lilienthal v Migration Agents Registration Authority[70] in support of this conclusion. He goes on to say that whether or not either form of estoppel applies, an attempt to re-litigate previously determined issues can be a basis for dismissing an application as frivolous or vexatious. He also excludes what is termed 'Anshun estoppel' from his general conclusion that estoppel has no application to AAT proceedings.[71]

74 I now move from the federal sphere and the AAT to the more general question of issue estoppel and administrative bodies. It is instructive to note that in Accident Compensation Commission v Detar,[72] the Full Court held that a recommendation by a conciliation division of the Accident Compensation Tribunal on the question of the entitlement of a worker to receive weekly payments, not challenged within the 28 days allowed under the relevant Act, gave rise to a cause of action estoppel preventing a second claim for compensation in respect of the same injury. That was so, notwithstanding the fact that a conciliation division made a recommendation, and not a determination as such.[73]

75 In Director of Housing v Andrew,[74] Cavanough J considered the applicability of the doctrines of res judicata and/or issue estoppel to VCAT proceedings in its Residential Tenancies List. His Honour said:

I am simply not satisfied on the evidence and material before me that the same claim, or indeed any claim, was previously dismissed on its merits, and I emphasise "on its merits", by VCAT ...

That being my view of the matter, there is of course no need to decide whether the doctrines of res judicata and/or issue estoppel are applicable to the proceedings of VCAT in the Residential Tenancies List. However I have at the moment no reason to think that they would not be applicable. I note that the latest decision of this Court in relation to those doctrines appears to be the decision of Beach J in Norris v Brumar (Victoria) Pty Ltd where there is some discussion of the leading authorities, including a reference to the most recent relevant authority in the High Court, namely Kuligowski v Metrobus. It would seem from those authorities that even the most informal of tribunals can be, depending on all the circumstances, subject to the doctrines of issue estoppel and res judicata, but I need not decide that point in the present case for the reason I have indicated.[75]

76 In Kuligowski v Metrobus,[76] the question was whether a decision by a review officer appointed under the Workers' Compensation and Rehabilitation Act 1981 (WA) could give rise to an issue estoppel. In that case, the review officer had decided that compensation payments made to a worker were to be discontinued from a specified date because, inter alia, the injury sustained in the course of employment had resolved; the evidence failed to establish that certain later injuries arose out of or in the course of his employment; and the employee had not proved incapacity for work.

77 The High Court held that no issue estoppel had arisen because the issue that had been determined by the review officer was not the same as that which would arise for determination in any subsequent common law proceeding. The judgment proceeded upon the basis that it might have been possible for the review officer (who plainly was not exercising judicial power) to have made a finding which would operate as an issue estoppel in relation to subsequent court proceedings.[77]

78 Recently, in Maurice Blackburn Cashman v Brown,[78] the High Court revisited the question of whether issue estoppel could apply to decisions made by an administrative body in this State. The plaintiff alleged that she had suffered injury, including psychiatric injury, as a result of her employer's negligence. She brought a claim against her employer pursuant to s 98C of the Accident Compensation Act 1985 seeking compensation for non-economic loss. In accordance with the provisions of the Act, the Victorian WorkCover Authority referred questions to a Medical Panel about the extent of the plaintiff's impairment. As a result of the Medical Panel's finding, the plaintiff was deemed to have sustained a 'serious injury' for the purposes of the Act. The plaintiff then commenced proceedings in negligence against the employer.

79 Section 68(4) of the Act provided that '[f]or the purpose of determining any question or matter', the opinion of the Medical Panel was to be applied by 'any court, body or person'. In its pleadings, the employer denied that the plaintiff had suffered injury, loss and damage. The question arose as to whether the employer was precluded by operation of the Act from making that contention, and also whether the employer was so precluded as a matter of issue estoppel.

80 The High Court held that the answer to both questions should be 'No'.

81 In dealing with the issue estoppel question, the Court observed:

It is a necessary condition for an issue estoppel to exist between parties that the decision from which the estoppel arises was a final decision. Where, as here, the statute establishing the body in question prescribes that its decisions are final for the purposes of that Act, no greater ambit of finality should be attributed to its decisions than the Act itself marks out. Thus no estoppel arises because the quality of 'finality' which the Act gives to an opinion expressed by a medical panel (in this case under s 104B(9)) is finality for the purposes of determining any question or matter arising under or for the purposes of the Act. No wider finality should then be ascribed to a panel's opinion.

These are reasons enough to conclude that the issue estoppels alleged in this case do not arise from the panel's opinion. It is not necessary in these circumstances to consider the further questions agitated in argument about who should be regarded as the 'parties' immediately affected by a panel expressing its opinion, who should be regarded as a privy of those parties, or whether the opinion expressed by a panel about degree of impairment can or should be regarded as a 'decision' of some question arising between parties.[79]

82 Plainly, the High Court did not find it necessary to consider the broader question of whether findings of fact made by an administrative body, such as a Medical Panel, can give rise to an issue estoppel. Nonetheless, the judgment clearly proceeds upon the basis that, in an appropriate case, such an estoppel can arise.

83 Where, then, does this leave the question whether issue estoppel can be invoked in relation to a VCAT decision? In seeking to answer that question, it is important to note that it is now generally accepted that issue estoppel is a principle of law, and not merely a rule of evidence. It reflects the broad rule of public policy that it is in the public interest that there should be an end to litigation.[80]

84 If a cause of action estoppel can arise out of a 'final decision' made by a 'judicial tribunal',[81] and if for this purpose a body can be a 'judicial tribunal' even though it is not a court of law in any strict sense,[82] there seems no reason why a decision by VCAT, at least in the exercise of its original jurisdiction, should not be capable of giving rise to such an estoppel. And applying the reasoning, but not the conclusion, of Wilcox J in Comcare,[83] there is equally no reason why an issue estoppel cannot arise out of a finding by VCAT in the exercise of that jurisdiction.

85 Arguably, this creates a disconformity between the availability of issue estoppel in relation to AAT proceedings, at the federal level, and VCAT proceedings, at the State level. At some point, that apparent disconformity may have to be addressed by the High Court. For present purposes, however, it is sufficient to say that the weight of recent authority suggests that issue estoppel can arise out of decisions made by administrative tribunals and, in particular, bodies such as VCAT.

86 It follows that the learned trial judge was entirely correct in considering whether an issue estoppel arose in this case. However, for the reasons given by Nettle and Redlich JJA, he ought to have concluded that no such estoppel had in fact arisen.

87 Subject to these observations, I agree with their Honours that this appeal should be dismissed.

[1] Domestic Building Contracts Act 1995.

[2] Victorian Civil and Administrative Tribunal Act 1998.

[3] One of those orders was corrected on 20 September 2004.

[4] On 20 September 2004, Senior Member Walker made an order correcting paragraph 1 of his order of 13 September 2004, so as to provide that Mr Morris pay the party-party costs of Riverwild in relation to its claims against Mr Morris up to and including '26 July 2004', rather than '26 August 2004'.

[7] Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589.

[8] Relying upon Geelong Permanent Building Society (in Liq) v Encel [1996] VicRp 44; [1996] 1 VR 594.

[9] Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, 438; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 8; Geelong Permanent Building Society (in Liq) v Encel [1996] VicRp 44; [1996] 1 VR 594, 604-7.

[10] Sobania v Nitsche (1969) 16 FLR 329, 334.

[11] [2006] VSCA 146; (2006) 25 VAR 124.

[12] See and compare R v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185, 197 (Gibbs CJ) and 210 (Wilson and Dawson JJ); HWT v Victoria [2006] VSCA 146; (2006) 25 VAR 124, 134 [28]-[29].

[13] State Rail Authority of New South Wales [1982] HCA 51; (1982) 150 CLR 29, 38; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, 256 [2].

[14] Re Refugee Review Tribunal and Anor; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 100 [39] and 121 [101].

[15] Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147, 171 (Lord Reid), 195 (Lord Pearce), 208 (Lord Wilberforce).

[16] Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, 80 (Lord Reid), 119 (Lord Morris of Borth-y-Gest) and 136 (Lord Hodson); Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147, 171 (Lord Reid), 195 (Lord Pearce), 208 (Lord Wilberforce); but cf Duryappah v Fernando [1967] 2 AC 337, 353-4 (PC).

[17] [1995] HCA 58; (1995) 184 CLR 163, 178.

[18] Returned & Services League Of Australia (Victoria Sub-Branch) Inc v Liquor Licensing Commission [1999] VSCA 37; [1999] 2 VR 203, 214.

[19] Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th ed (2009) 719-720

[20] Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158, 279 [345].

[21] Re Refugee Review Tribunal and Anor; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 89 [5] (Gleeson CJ), 101 [41] (Gaudron and Gummow JJ), 143 [169] (Hayne J) and 153 [210] (Callinan J).

[22] Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.

[23] Ibid 614 [51] (Gaudron and Gummow JJ) and, to similar effect, see at 646 [151] and [152] (Hayne J) and at 649 [163]-[165] (Callinan J).

[24] (2002) 209 CLR 597, 645-6 [151]-[152] (citations omitted).

[25] Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 532 (Dixon J); Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446, 460 (Latham CJ); Ramsay v Pilgrim [1968] HCA 34; (1968) 118 CLR 271, 276; Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, 379 [40];

[26] Boncristiano v Lohmann [1998] 4 VR 82, 88.

[27] (1984) 27 BLR 26, 38.

[28] [1998] 4 VR 82, 88.

[29] Shaw v Yarranova Pty Ltd & Anor [2011] VSCA 55.

[30] Kuek v Devflan Pty Ltd & Anor [2011] VSCA 25; Shaw v Yarranova Pty Ltd & Anor [2011] VSCA 55.

[31] [2000] NSWSC 232.

[34] Banque Keyser v Skandia Insurance (UK) Insurance Co (No 2) [1988] 2 All ER 880.

[36] Boncristiano v Lohman [1998] 4 VR 82, 89.

[38] Assuming in Mr Morris' favour that the only costs were the $1.8 million which the judge treated as common costs.

[39] Nau v Kemp & Associates [2010] NSWCA 164 [105] (McColl JA).

[40] [2000] NSWCA 69; (2000) 48 NSWLR 522, 540 [68].

[41] The Morgenry, The Blackcock [1900] P 1, 12; Banque Keyser v Skandia (UK) Insurance Co Ltd & Ors (No 2) [1988] 2 All ER 880, 883; cf Boncristiano v Lohmann [1998] 4 VR 82, 89; RACV Insurance Pty Ltd v Unisys Australia Ltd [2001] VSC 300, [555].

[42] Director of Housing v Sudi [2011] VSCA 266, [182]-[203] (Weinberg JA).

[43] See Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act') s 41. VCAT's original jurisdiction is defined as its jurisdiction other than its review jurisdiction.

[44] Ibid s 42. VCAT's review jurisdiction is that conferred upon it by or under an enabling enactment to review a decision made by a decision-maker.

[45] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworths, 2003) 153 [9.30].

[46] [1988] FCA 161; (1988) 80 ALR 342.

[49] [1973] HCA 59; (1973) 130 CLR 353 ('Daera Guba').

[50] With whom McTiernan and Menzies JJ agreed.

[51] Daera Guba [1973] HCA 59; (1973) 130 CLR 353, 403-404.

[52] With whom Stephen and Menzies JJ agreed (Menzies J having agreed with both Barwick CJ and, with slight qualification, Gibbs J).

[53] Daera Guba [1973] HCA 59; (1973) 130 CLR 353, 453.

[54] [1973] HCA 59; (1973) 130 CLR 353.

[55] [1961] AC 584.

[56] His Honour referred to Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 39 ALR 649 ('Daniele'); and Commonwealth of Australia v Sciacca (1988) 17 FCR 476 ('Sciacca'). In neither case, however, was there any reference made to Daera Guba.

[57] [1994] FCA 1054; (1994) 50 FCR 60 ('Comcare').

[59] [1981] FCA 212; (1981) 39 ALR 649.

[60] (1988) 17 FCR 476.

[61] (1991) 30 FCR 87 ('Midland Metals').

[62] [1973] HCA 59; (1973) 130 CLR 353.

[63] Comcare [1994] FCA 1054; (1994) 50 FCR 60, 67.

[64] [1992] AATA 205; (1992) 28 ALD 25.

[66] (1995) 38 ALD 164.

[68] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworths, 2003) 154.

[69] (1991) 30 FCR 87.

[70] [2001] FCA 2; (2002) 65 ALD 437, 442.

[71] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworths, 2003) 155.

[72] [1989] VicRp 82; [1989] VR 931 ('Detar').

[73] Detar was followed and applied in Russo v Westpac Banking Corporation Ltd (Civil Claims) [2006] VCAT 678.

[74] [2009] VSC 441.

[75] Ibid [8]-[9] (citations omitted). Norris v Brumar (Victoria), to which his Honour referred, is to be found at [2009] VSC 214. In The Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 246; (2001) 4 VR 595, it was assumed, without deciding, that an issue estoppel could arise out of a VCAT decision in relation to the Freedom of Information Act 1982 - see, generally, [62] of that case (Chernov JA).

[76] [2004] HCA 34; (2004) 220 CLR 363.

[78] [2011] HCA 22; (2011) 277 ALR 654. As to the finality of decisions by the Medical Practitioners' Board, see generally Kabourakis v Medical Practitioners' Board of Victoria [2006] VSCA 301, [47] (Nettle JA, with whom Warren CJ and Chernov JA agreed).

[79] Ibid 664-665 [40]-[41] (citations omitted).

[80] See, generally, Enid Campbell, 'Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation', Monash University Law Review 20(1) (1994) 21, 24.

[81] See G Spenser Bower and A K Turner, The Doctrine of Res Judicata (Butterworths, 2nd ed, 1969) 24-26 [24]; 29 [29].

[82] Daera Guba [1973] HCA 59; (1973) 130 CLR 353, 453 (Gibbs J).

[83] [1994] FCA 1054; (1994) 50 FCR 60.